18-001174 Great American Life Insurance Company, Inc. vs. The Buccaneer Commercial Unit A, Care Of Benjamin Sharfi, Trustee Of The Benjamin Sharfi Trust 2002, The State Of Florida Department Of Environmental Protection, And The Board Of Trustees Of The Internal Improvement Trust Fund Status: Closed Recommended Order on Thursday, January 10, 2019.

Summary: The permit applicants met all relevant criteria, including those pertaining to navigation and alleged impairments and hazards thereto, and was entitled to issuance of the ERP and Sovereignty Submerged Land Lease for the Commercial Unit A Dock.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREAT AMERICAN LIFE INSURANCE

COMPANY, INC.,

Petitioner,

vs. Case No. 18 - 1174

THE BUCCANEER COMMERCIAL UNIT A,

CARE OF BENJAMIN SHARFI, TRUSTEE

OF THE BENJAMIN SHARFI TRUST

2002; THE BUCCANEER CONDOMINIUM

ASSOCIATION OF PALM BEACH

SHORES, INC.; THE STATE OF

FLORIDA DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

ET AL.,

Respondents.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearin g was held in this case

on August 14 and 15, 2018 , in West Palm Beach , Florida , before

E. Gary Early, a designated A dministrative L aw J udge of the

Division of Administrative Hearings .

APPEARANCES

For Petitioner Great American Life Insurance Company:

Andrew J. Baumann, Esquire

Lewis, Longman and Walker, P.A.

Suite 1500

515 North Flagler Drive

West Palm Beach, Florida 33401

a nd

John W. Wallace, Esquire

Lewis, Longman and Walker, P.A.

Suite 150

245 Riverside Avenue

Jacksonville, Florida 32202

For Respondents t he Buccaneer Commercial Unit A , C are o f

Benjamin Sharfi, Trustee of the Benjamin Sharfi Trust 2002 ,

and t he Buccaneer Condominium Association of Palm Beach

Shores, Inc.:

Joshua D. Miron, Esquire

Shutts & Bowen, LLP

Suite 2100

200 East Broward Boulevard

Fort Lauderdale, Florida 33301

and

Christopher Hamilton, Esquire

Deborah Getzoff, Esquire

Shutts & Bowen , LLP

4301 West Boy Scout Boulevard

Tampa, Florida 33607

For Respondents State of Florida, Department of

Environmental Protection , and the Board of Trustees of the

Internal Improvement Trust Fund :

Kirk Sanders White, Esquire

Department of Environmental Protection

Mail St ation 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue to be determined is whether Consolidated

Environmental Resource Permit No. 50 - 0 1 47856 - 00 3 - EI and

State - owned Submerged Lands Lease No . 500 022746 for a commercial

addition to the multi - family residential dock , known as the

Buccaneer C ondominium Marina , should be issued as proposed in

the December 27, 2017 , proposed agency action issued by the

Department of Environmental Protection (ÐDEPÑ) in its own

capacity and in its capacity as staff to the Board of Trustees

of the Internal Improvement Trust Fund (ÐBTIITFÑ) . Unless

individually identified, the DEP and the BTIITF will be

collectively referred to as Ð the DEP . Ñ

PRELIMINARY STATEMENT

On December 27, 20 1 7 , the DEP issued a Consolidated

Environmental Resource Permit (ÐERPÑ) and Recommended Intent to

Grant State - owned Submerged Lands Authorization

(ÐSSL AuthorizationÑ) , Permit No. 50 - 0 1 47856 - 00 3 - EI

(collectively the ÐPermitÑ) , to the Applicant, the Buccaneer

Commercial Unit A (ÐApplicantÑ or Ð Commercial Unit A Ñ ). The

Permit authorizes the installation of a 2,370 square foot ,

14 - slip dock addition (the ÐCommercial Unit A DockÑ) to an

existing 2,643 square foot , 18 - slip multi - family residential

docking facility (the ÐBuccaneer Condo minium DockÑ) that serves

the Buccaneer Condominium Association of Palm Beach Shores, Inc.

(the ÐBuccaneer Condominium). The resulting mixed

commercial/residential docking facility will be a t otal of

5,013 square f eet with 32 wetslips.

On February 9, 2018 , Petitioner , Great American Life

Insurance Company, Inc. ( Ð Petitioner Ñ or ÐGreat AmericanÑ) ,

f iled a Petition for Administrative Hearing (ÐPetitionÑ) .

Petitioner own s or has a property interest in a residential

parcel at 144 Lake Drive, Palm Beach Shores, Florida

(the Ð 144 Property Ñ ) , located north of and adjacent to property

owned by the Buccaneer Condominium and the Applicant .

PetitionerÓs property includes a single - family dock adjacent to

the seawall (the Ð 144 DockÑ) .

On March 5, 2018 , the Petition was referred to the Division

of Administrative Hearings . On March 7, 2018, Petitioner filed

an Amended Petition for Administrative Hearing which was

accepted pursuant to Florida Administrative Code Rule 28 -

106.202. On March 8, 2018, this case was assigned to the

undersigned.

The final hearing was scheduled for August 13 through 16,

2018 . In the period leading up to the final hearing, a number

of motions were filed, including a motion to add t he Buccaneer

Condominium as an indispensable party . That motion was granted.

Unless individually identified, Commercial Unit A and the

Buccaneer Condo minium will be collectively referred to as Ð the

Applicants Ñ or Ð Respondents .Ñ D isposition of the other motions

is reflected o n the docket.

On August 13, 2018 , the parties filed their Joint Pre -

hearing Stipulation (ÐJPSÑ) . The J PS contained eight

stipulations of fact and law , each of which is adopted and

incorporated herein . The JPS also identified disputed issues of

fact and law remaining for disposition as follows:

I ssues of fact which remain to be litigated

1. The impact upon navigation with regard

to vessels navigating to and from 144 Lake

Drive, Palm Beach Shores, Florida, which

will be caused by the Expanded Buccaneer

Dock.

2. The impact upon PetitionerÓs riparian

rights which will be caused by the Expanded

Buccaneer Dock.

3. The impac t upon navigation with regard

to vessels navigating the Lake Worth

Navigation Channel in the vicinity of the

Expanded Buccaneer Dock.

4. The impact that the project will have

upon health, public safety, and welfare.

5. The public benefit, or lack there of, of

the Project.

6. The ability of the Applicants to comply

with the terms of the Permit and Lease.

Issues of law which remain for determination

1. Whether the Applicant carries the burden

of ultimate persuasion with regard to

matters related to the modification of its

existing Submerged Lands Lease.

2. Whether the Applicant has provided FDEP

and the Board with reasonable assurances

that the Expanded Buccaneer Dock will not

adversely affect navigation within the Lake

Worth Navigation Channel.

3 . Whether the Applicant has provided FDEP

and the Board with reasonable assurances

that the Expanded Buccaneer Dock will not

adversely affect navigation to and from the

existing si ngle family dock located at

144 Lake Drive, Palm Beach Shores, Florida.

4. Whether the Applicant has provided FDEP

and the Board with reasonable assurances

that the Expanded Buccaneer Dock will not

create a navigational hazard for vessels

navigating within the Lake Worth Navigation

Channel.

5. Whether the Applicant has provid ed FDEP

and the Board with reasonable assurances

that the Expanded Buccaneer Dock will not

create a navigational hazard for vessels

navigating to and from the existing single

family dock located at 144 L ake Drive,

Palm Beach Shores, Florida.

6. Whether t he Applicant has provided FDEP

and the Board with reasonable assurances

that the Expanded Buccaneer Dock will not

unreasonably infringe upon PetitionerÓs

riparian rights.

7. Whether the Applicant has provided FDEP

and the Board with reasonable assurances

that the Expanded Buccaneer Dock will not

threaten health, public safety or welfare,

or will not otherwise be in contravention of

public interest.

8. Whether the Project should have been

submitted to the Cabinet and Board.

9. Whether the Buccaneer Res pondents have

demonstrated a net public benefit to justify

the expansion of the Buccaneer Dock.

10. Whether FDEP may issue a modification

to the existing, grandfathered Buccaneer

Dock which authorizes both a commercial and

multi - family residential use on the same

dock.

11. Whether the proposed lease modification

includes an improperly expanded

grandfathered, multi - family docking

facility.

12. Whether the existing Buccaneer Dock can

be expanded in excess of its grandfathered

footprint.

13. Whether FDEP can issue a modification

to the existing, grandfathered Buccaneer

Dock which authorizes both a commercial and

multi - family residential use of the same

dock.

14. Whether the Applicants possess

sufficient upland title interest/riparian

rights to authorize the extension of the

Buccaneer Dock.

15. Whether the Project should have been

submitted to the Cabinet and Board.

[repeated from Issue of Law ¶ 8].

16. Whether DEP should have considered the

ApplicantsÓ compliance history in issuing

the Permi t and Lease Modification.

17. Whether Great American has standing

pursuant to Rule 28 - 106.201 F.A.C, and

Fla. Stat. §§ 120.569 and 120.57 to assert

claims relative to past agency action

relative to the BuccaneerÓs Lease.

18. Whether the Court has subje ct matter

jurisdiction to determine PetitionerÓs

allegations relative to compliance and

enforcement.

Upon inquiry at the final hearing, Petitioner agreed that

the issue s in this case can be boiled down to whether the

construction of the Commercial Unit A Dock will affect

navigation under the ERP and SSL Lease (ÐSSLLÑ) criteria , and

whether the Buccaneer Condo minium DockÓs grandfathered

exceedance of the 40:1 ratio of shoreline to square feet of

multi - family residential dock affects the permitting of the

Commercial Unit A Dock . See Tr. Vol. 1, 39:18 through 40:2.

Petitioner also raised the related issue of whether the

Commercial Unit A Dock could be ÐappendedÑ to a grandfathered,

exempt private multi - family residential dock, and whether

Commercial Unit A has a sufficient upland interest to support

its entitlement to a permit for the Commercial Unit A Dock .

T he hearing convened on August 14, 2018 . At the

commencement of the hearing, the undersigned took up

Petitioner Ó s Emergency Motion for Continuance of Final Hearing

and Omnibus Motion in Limine , both of which were directed to

testimony of DEP employees related to whether the Buccaneer

Condominium or Commercial Unit A would be the appropriate

applicant for the Commercia l Unit A Dock. For reasons set forth

in the transcript, the motions were denied.

The ERP under review having been issued under the authority

of chapter 373, Florida Statutes, that element of the hearing

was subject to the modified burden of proof established in

section 120.569(2)(p), Florida Statutes. The SSL Authorization

was issued under the authority of chapter 253, Florida Statutes.

Thu s, the burden remains with the A pplicant to demonstrate

entitlement to the easement. The burden of proof pr ovisions are

discussed in the Conclusions of Law herein.

Joint Exhibits 1 through 9 , consisting of the application

file for the ERP and SSL Authorization , w ere received in

evidence by stipulation of the parties .

Respondents c alled the following witnesses: Benjamin K.

Sharfi, Trustee of the Benjamin K. Sharfi Trust 2002 and

President of The Buccaneer Condominium of Palm Beach Shores;

Daniel Blanton , who was tendered and accepted as an expert in

surveying and mapping ; Captain James Robertson, who was tendered

and accepted as an expert in boating safety, vessel

maneuverability, and navigation ; and Pete Peterson, P.E., who

was tendered and accepted as an expert in ocean engineering and

marina design and layout . RespondentsÓ Exhibits 5 through 7,

20, and 2 1 were received in evidence.

The D EP called Jason Andreotta, assistant director of the

DEP Southwest District, and offered DEP Exhibits 1 thro u gh 14,

16, 17, 19, 21, 22, 24, and 25 in evidence .

Petitioner called the following witnesses: Craig Wallace,

who was tendered and accepted as an expert in surveying and

mapping; Bryan Cheney; Jack Cox, who was tendered and accepted

as an expert in coastal engineering and marina design; and Dane

Fleming, who was tendered and accepted as an expert in

navigation, Ðrules of the road,Ñ and seamanship. Great American

Exhibit s 1, 5 through 9, and 33 were received in evidence.

A t wo - volume Transcript of the final hearing was filed ,

with the final volume being filed on September 19, 2018. The

parties were given 20 days from the filing of the Transcript

within which to file their proposed recommended orders , and were

telephonically granted additional time until October 15 , 2018 .

T he par ties filed p roposed r ecommended o rder s on October 15,

2018 , each of which has been considered in the preparation of

this Recommended Order .

The law in effect at the time the D EP takes final agency

action on the application being operative, references to

statutes are to their current versions , unless otherwise noted.

Lavernia v. DepÓt of ProfÓl Reg. , 616 So. 2d 53 (Fla. 1st

DCA 1993).

FINDINGS OF FACT

Based upon the demeanor and credibility of the witnesses ,

the stipulations of the parties, and the evidentiary record of

this proceeding, the following Findings of Fact are made:

The Parties

1 . Great American is a foreign for - profit corporation

doing business in the State of Florida. Great American owns the

144 Property . The 144 Property is located immediately north of,

and adjacent to, the Buccaneer Condominium , and shares a

riparian line (the Ðriparian lineÑ) extending waterward from the

line separating the upland propert ies . The location of the

riparian line between the Bu ccaneer Cond ominium and the

144 Property is as depicted on the proposed ERP and SSL

Author ization, and is not in dispute. The 144 Property has

92 feet of shoreline on Lake Worth, and includes the small

residential 144 D ock .

2 . The 144 Property is used annually by the family of

Great AmericanÓs principal shareholders . When not being

utilized by family members , Great American leases the

144 Property to various individuals. As a rule, all persons

using the 144 Property moor vessels at the 144 Dock , which are

gen er ally in the 50 - to 60 - foot range, but which c an be up to

80 feet in length.

3 . The Buccaneer Condominium is a Florida c ondominium

a ssociation establish ed pursuant to and governed by c hapter 718,

Florida Statutes, and subject to the Declaration of Condominium

recorded within the public records of Palm Beach County, Florida

(the ÐDeclarationÑ) .

4 . The Buccaneer Condominium is a mixed - use condominium

facility located at 142 Lake Drive, West Palm Beach, Florida,

and is a waterfront ri parian owner. The Buccaneer Condominium

o ffers, as an amenity of its 18 condominium units, the 18 - slip

Buccaneer Condominium Dock that is a common element of t he

Buccaneer Condominium . The Buccaneer Condominium unit owners

each own an undivided interest in the common elements of the

condominium, and , therefore , an undivided interest in the

Buccaneer Dock. The Buccaneer Condominium designate s and

license s a dock space to each condominium owner, and each owner

has the irrevo cable and exclusive right to use of a dock space.

5 . S ection 718.111(3) establishes that the Buccaneer

Condominium has the non - exclusive right to file suit on behalf

of the members of the Association relative to claims which

involve common elements , while reserving the statutory and

common law right for unit owners to bring any action without

participation by the Buccaneer Condominium .

6 . Mr. Sharfi is the President of the Buccaneer

Condominium and is authorized to act on its behalf pursuant to

the Declaration a nd associated corporate bylaws.

7 . Mr. Sharfi is a member of the Buccaneer Condominium by

virtue of his ownership of multiple condominium units , along

with the irrevocable and exclusive right to use Buccaneer D ock

spaces associated with his units.

8 . Mr. Sharfi owns Commercial Unit A, which was purchased

from Great American in January 2017. The rights granted to

Commercial Unit A to use Buccaneer Condominium property and

common elements are established in s ection 5. 2.3 of the

Declaration. Pursuant to Article VIII, s ection 8.3 of the

Declaration :

T o the extent permitted by law, any and all

riparian rights to add additional dock

spaces is hereby reserved, granted and

assigned to Unit A and the Owner thereof

. . . . Wi thout limiting the foregoing, the

Owner of commercial Unit A shall have the

right, power, and authority, to the extent

permitted by law , to construct any

additional dock spaces in the waterway

contiguous to the Condominium property . . .

provided, howeve r, the use thereof shall be

deemed to be and have been designated and

assigned perpetually and exclusively to and

as an appurtenance to Commercial Unit A.

9 . The Buccaneer Condominium and Commercial Unit A are

joint applicants for the Permit at issue , with the Buccaneer

Condominium being included as an applicant due to its status as

an upland riparian owner and current SSLL lessee.

10 . DEP is an agency of the State of Florida pursuant to

s ection 20.255, Florida Statutes. The DEP is the permitting

authority in this proceeding and issued the proposed Permit .

11 . The BTIITF is a collegial body established pursuant to

Article IV, s ection 4 (f) of the Florida Constitution , whose

existence is reaffirmed by s ection 253.001, Florida Statutes.

The B TIITF holds title to the sovereign ty submerged lands within

the State in trust for the use and benefit of the public

pursuant to Article X, s ection 11 of the Florida Constitution.

12 . The D EP performs staff duties and functions on behalf

of the BTIITF related to the review of application s for

authorization to use sovereignty submerged lands necessary for

an activity regulated under part IV of chapter 373 for which the

D EP has permitting responsibility. § 253.002(1), Fla. Stat .

The D EP has been delegated the authority to take final agency

action, without any action by the BTIITF , on applications for

authorization to use sovereignty submerged lands for any

activity for which the D EP has permitting respo nsibility.

§ 253.002(2), Fla. Stat. ; Fla. Admin. Code R. 18 - 21.0051(2) .

The Buccaneer Condominium Dock

13 . The Buccaneer Condominium D ock was constructed

in 1958 , prior to regulatory rules being in place , and is ,

therefore , a grandfathered structure. From a regulatory

perspective, it is a Ðprivate residential multi - family dock or

pierÑ as defined in Florida Administrative Code R ule

18 - 21.003(47) , exclusively serving the 18 - unit Buccaneer

Condominium. Petitioner ha s not challeng ed the legality of the

existing lease or prior leases for the Buccaneer Condominium

Dock .

14 . The Buccaneer Condominium Dock consists of 18 dock

spaces, nine of which face no rth in the direction of the

144 Dock, and nine of which face south . There is no use of the

Buccaneer Condominium Dock by the public.

15 . The Buccaneer D ock extends 16 2 feet from the seawall.

The Buccaneer Dock includes a fueling facility at its

seaward end .

The Proposed Commercial Unit A Dock

16 . The proposed Commercial Unit A Dock would be

constructed from the end of the Buccaneer Condominium Dock. It

is proposed to consist of 12 slips in a double - loaded fashion,

with six slips facing north (in the direction of the 144 Dock)

and six slips facing south , and tw o short - term or transient

T - head mooring position s for fueling for a total of

14 commercial slips over 2,370 square feet. The T - head will

accommodate a fueling station, replacing the current fueling

platform at the end of the Buccaneer Condominium Dock. The

Commercial Unit A Dock will be approximately 140 feet in length,

resulting in a combined structure of 302 feet from the bulkhead

westerly towards the Singer Island C hannel.

17 . The westernmost boundary of the proposed SSLL extends

20 feet beyond the T - head to allow for vessels to tie up at the

fueling station. The SSLL will, according to the Permit

drawings, extend 324.5 feet into Lake Worth and the Singer

Island Channel . The total preempted area for the modified SSLL

will be 49,800 square feet.

18 . The Commercial Unit A Dock will be open to the general

public for use on a first - come, first - served basis to serv e the

restaurant in Commercial Unit A.

Adverse Affects on Nav igation/Navigational Hazard

19 . The Environmental Resource Permit ApplicantÓs Handbook

( Ð A.H. Ñ ) , z Vol. I , provides criteria to be considered in

conjunction with the standards established in section 373.414,

and Florida Administrative Code R ule 62 - 330.301, for issuance of

an ERP . 1 / Section 10.2.3.3 of the A.H. establishes that the DEP

is to evaluate and consider the current navigation uses of the

surface water in determining whether to issue a n ERP.

Singer Island Channel

20 . The Singer Island Channel runs in a north/south

direction and is the navigational channel closest to the

Buccaneer Condominium Dock and proposed Commercial Unit A Dock,

the 144 Dock, Great American Ós Sailfish Marina to the south, and

the Cannonsport Mar ina to the north. The east side of the

Singer Island Channel is generally defined by the waterward ends

of the docks and marinas in the area, while the western side is

defined by the Peanut Island shoal . The Singer Island Channel

is widely used, but is not to be confused with the Intracoastal

Waterway (ÐICWÑ), which is the main navigational thoroughfare

for commercial and recreational vessels in the area, and which

runs to the west of nearby Peanut Island.

21 . The eastern edge of the proposed SSLL exte nsion will

become a part of what is an essentially straight line from the

Sailfish Marina docks to the Cannonsport Marina docks.

22 . T here will be approximately 97 feet of open water

between the northwestern corner of the proposed SSLL to the

closest point on a n imaginary straight line drawn from the

nearest Singer Island Channel markers located to the north and

south of the proposed SS L L . The visible edge of the Singer

Island Channel is , at a minimum, an additional 15 feet west of

tha t imaginary line. Thus, a preponderance of the evidence

establishes that the Ðpinch pointÑ between the SSLL and the

navigable edge of the Singer Island Channel is , at its

narrowest , 1 12 feet in width.

23 . A preponderance of t he evidence establishes that

97 f ee t of open water is sufficient to allow vessels of the size

that frequent the area to easily maneuver if they were to pass

at th e Singer Island ChannelÓs narrowest point. Given that

there is a minimum of 15 feet of additional open - water space to

the visible edge of the Singer Island Channel, there will be no

adverse impact to the navigation of the vessels transiting the

Singer Island C hannel.

24 . Th e finding that the space be tween the Commercial

Unit A Dock SSLL and the edge of the Singer Island Channel is

sufficient to allow unimpeded navigation is substantiated by the

clearance deemed sufficient to allow for safe navigation beneath

t he nearby Blue Heron Bridge . The Blue Heron Bridge is north of

the proposed Buccaneer Commercial Dock on the I CW . The ICW is

the primary channel for commercial, recreational ( sport

fishermen, yachts, and pleasure craft) and Coast Guard vessels.

The passage beneath the bridge is flanked by fixed dolphins or

guardrails. T he clearance under the bridge is 90 feet, which is

sufficient for two vessels to pass in the federal ly - maintained

channel.

25 . Petitioner argue d that the Blue Heron B ridge is not an

appropriate comparator for an evaluation of impediments or

hazards to navigation, since the passage beneath the bridge is

not in an environment comparable to what would be expected in

the vicinity of the proposed Commercial Unit A Dock , i.e. with

vessels tying up at the periphery of the channel for fueling,

and with vessels maneuvering into and out of nearby slips . The

evidence to that effect was disputed, and in any event was not

persuasive. The fact that vessels are able to maneuver and pass

one another without incide nt in a space of 90 feet is persuasive

evidence that they will be able to do so in a space of 97 feet

in width , and even more persuasive that they will be able to do

so in a space of 112 feet in width .

26 . R ecreational vessels often pull up onto the Peanut

Island s hoal that extends to the north and east from Peanut

Island. The shoal has areas that are above water at low tide,

and is apparently a popular spot for small - craft boaters to pull

up and anchor. T h e evidence suggests that boaters more commonly

pull onto the shoal closer to the northwest corner of the

channel, near the Cannonsport Marina, or off to the west of

Peanut Island well away from the proposed Commercial Unit A

Dock , though there is nothing to prevent boats from pulling onto

the shoal in the vicinity of the proposed Commercial Unit A

Dock. However, it is illegal to anchor in or block a marked

navigational channel, as is the Singer Island Channel, and any

vessels doing so wou ld be required to move by the Marine Patrol

or the Coast Guard.

27 . Finally, an argument was made that vessels standing

off while waiting to fuel at the proposed Commercial Unit A Dock

would create an impediment to navigation. It was established by

a p reponderance of the competent, substantial , and credible

evidence t hat there is sufficient space to stand off without

interfering with traffic in the Singer Island Channel ,

particularly in the open water area to the north of the proposed

Commercial Unit A Dock , but also to the significantly wider and

more open areas to the south of the proposed Commercial Unit A

Dock . Furthermore, t he area around the proposed Commercial

Unit A Dock is in a less congested area than th e fueling

facility at the center dock of the adjacent Sailfish Marina

which, as depicted on RespondentÓs Exhibit 20 , is flanked by

sizable docks . There was no evidence that the Sailfish Marina

has been a cause of navigational impediments as a result of

vessels standing off for fuel.

28 . Based on the record as a whole, including evidence of

the existing commercial docks in the area, current channel

width , and boating traffic and use patterns in the area, a

preponderance of the evidence demonstrates that n either the

112 - foot width of open water from the northwest corner of the

proposed Commercial Unit A Dock to the edge of the Singer Island

Channel at its closest point , nor the 97 - foot width as measured

to the imaginary channel marker line, creates a condition that

is reasonably expected to s ignificantly impede navigability or

create a navigational hazard.

144 Property

29 . The existing Buccaneer Condominium Dock is 162 feet in

length, with a fueling facility at its waterward end. As with

the proposed Commercial Unit A Dock fuel ing platform, an

additional 20 feet should be calculated from the end of the dock

to account for vessels tying up to fuel. There was no evidence

that the existing Buccaneer Condominium D ock impeded access to

the 144 Dock by persons affiliated with Petitioner or by the

more frequent renters of the 144 Property. The evidence was

co nvincing that the Buccaneer Condominium Dock does not create a

condition that is reasonably expected to significantly impede

navigability or create a navigational hazard.

30 . The proposed Commercial Unit A Dock is designed to

extend 140 feet from the end of the Buccaneer Condominium Dock.

31 . The proposed Commercial Unit A Dock complies with the

25 - foot set back requirement from the 144 Property riparian line

as required by rule 18 - 21.004(3)(d).

32 . The area to the north of the 144 Dock is wide open,

with more than enough space to maneuver any vessel that

currently uses the 144 Dock. Furthermore, the space available

for maneuvering in the waters south of the 14 4 dock will not be

appreciably more restricted than the restriction posed by the

Buccaneer Condominium Dock, and will be no more restricted than

the space for maneuvering between docks at the Sailfish Marina

or the Cannonade Marina.

33 . Mr. Fleming agreed that there is no adverse

navigational condition , vis - à - vis the 144 Dock , resulting from

the Buccaneer Condominium Dock. His c oncern with navigation was

based on his assumption that the Commercial Unit A Dock would

increase vessel traffi c in the area , blocking the fairway to the

south of the 144 Dock and increasing the possibility of a

collision. That concern can only have merit if it is assumed

that the operators of vessels in the area are completely

unfamiliar with common maritime rule s of right - of - way and

maneuvering. The area around the Commercial Unit A Dock will

remain less congested than nearby facilities. It is simply

implausible, and unsupported by competent, substantial evidence,

that the proposed Commercial Unit A Dock will a dversely affect

navigation to or from the 144 Dock .

34 . Petitioner holds a self - certification from the DEP

which acknowledges PetitionerÓs qualification for an exemption

for a residential dock of up to 1,000 square f eet at the

144 Property . Such docks are exempt by statute and rule.

§ 403.813(1)( b), Fla. Stat.; Fla. Admin. Code Rule 62 -

330.051 (5)(b). Despite the fact that Petitioner is allowed to

construct an exempt dock extending from the 144 Property into

the waterway , there was no persuasive evidence as to when, or

if, the dock would be built , or that the dock, if constructed,

would result in the proposed Commercial Unit A Dock being found

to adversely affect navigation or create a navigational hazard.

35 . A preponderance of th e evidence establishes that the

proposed Commercial Unit A Dock will not adversely affect or

impede navigability , or create a navigational hazard for vessels

ingressing and egressing the 144 Dock.

36 . In addition to the lack of credible evidence that the

Commercial Unit A Dock will ad versely affect or impede

navigation, the evidence is equally unpersuasive that riparian

rights incident to the 144 Property will be impaired. There was

no evidence, oth er than speculation and conjecture , regarding

the currently non - existen t future 144 Dock, that suggest that

Petitioner Ós riparian interests would be impaired to any

appreciably greater degree than they would be as a result of the

current 162 - f oot Buccaneer Condominium Dock and the additional

20 - feet for vessels tying up to fuel. In addition, the

Commercial U nit A Dock is subject to the 25 - foot setback

required by rule. A preponderance of the evidence establishes

that the proposed Commercial Unit A Dock will not unreasonably

infringe upon PetitionerÓs riparian rights.

Commercial Unit A Dock as an Extension of the Buccaneer

Condominium Dock

37 . The DEP established the propriety of having the

Buccaneer Condominium Association as a co - applicant with

Commercial Unit A since it is the holder of the existing lease

and an upland riparian interest. See , e.g. , Fla. Admin.

Code R. 18 - 21.004 (1)(c) and (d).

38 . Rule 18 - 21.004(4) (b)2. , which establishes a ratio Ð of

no more than forty square feet of sovereignty submerged land for

each linear foot of the applicantÓs common riparian shoreline

. . . to square feet of multi - family residential dock [the Ð40:1

ruleÑ] Ñ applies only to private multi - family residential docking

facilities. The Buccaneer Condominium Dock is a grandfathered

dock based on its existence and configuration prior to the

promulgation of the 40:1 rule. There is no proposed extension

or material a lteration of the Buccaneer Condominium Dock . 2 /

39 . The 40 :1 rule does not apply to t he Commercial Unit A

Dock because the rule applies only to p rivate residential multi -

family docks , and does not apply to commercial slips. Thus , the

DEP did not apply the 40:1 rule to the proposed Commercial

Unit A Dock.

40 . The combined preempted area encompassed by the

modified SSLL will not exceed 50,000 square feet, or result in a

facility of more than 50 slips. The Buccaneer Condominium Dock,

as a grandfathered structure, does not require an exception to

the 40:1 rule.

41 . There was no persuasive evidence that the Buccan eer

Condominium Dock and the Commercial Unit A Dock are part of a

common plan of development designed to operate as a single dock

for the Buccaneer C ondominium. T he Buccaneer Condominium Dock

will be materially unchanged in use and configuration, and will

remain dedicated to the owners of Buccaneer Condominium units .

The Commercial Unit A Dock will be a first - come, first - served

commercial dock for the primary purpose of allowing transient

dockage for patrons of the restaurant on Commercial Unit A.

CONCLUSIONS OF LAW

Jurisdiction

42 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

Standing

43 . Section 120.52(13) defines a Ðparty , Ñ in pertinent

part, as a person Ð whose substantial interests will be affected

by proposed agency action, and who makes an appearance as a

party.Ñ Section 120.569(1) provides, in pertinent part, that

Ð[t]he provisions of this section apply in all proceedi ngs in

which the substantial interests of a party are determined by an

agency.Ñ

44 . Standing under chapter 120 is guided by the two -

pronged test established in the seminal case of Agrico Chemical

Corporation v. Dep artment of Env ironmental Regulation ,

406 So. 2d 478 (Fla. 2d DCA 1981). In that case, the c ourt

held that:

We believe that before one can be considered

to have a substantial interest in the

outcome of the proceeding, he must show

1) that he will suffer an injury in fact

which is of sufficie nt immediacy to entitle

him to a section 120.57 hearing and 2) that

his substantial injury is of a type or

nature which the proceeding is designed to

protect. The first aspect of the test deals

with the degree of injury. The second deals

with the natur e of the injury.

Id. at 482.

45 . Agrico was not intended as a barrier to the

participation in proceedings under chapter 120 by persons who

are affected by the potential and foreseeable results of agency

action. Rather, Ð[t]he intent of Agrico was to p reclude parties

from intervening in a proceeding where those parties Ó

substantial interests are totally unrelated to the issues that

are to be resolved in the administrative proceedings. Ñ

Mid - Chattahoochee River Users v. Fla. Dep't of Envtl. Prot. ,

948 So. 2d 794, 797 (Fla. 1st DCA 2006)(citing Gregory v. Indian

River Cnty. , 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).

46 . The standing requirement established by Agrico has

been refined, and now stands for the proposition that standing

to initiate an a dministrative proceeding is not dependent on

proving that the proposed agency action would violate applicable

law. Instead, standing requires proof that a petitioner has a

substantial interest and that the interest reasonably could be

affected by the proposed agency action. Whether the effect

would constitute a violation of applicable law is a separate

question.

Standing is Ða forward - looking conceptÑ and

Ðcannot ÒdisappearÓ based on the ultimate

outcome of the proceeding.Ñ . . . When

standing is challenged during an

administrative hearing, the petitioner must

offer proof of the elements of standing, and

it is sufficient that the petitioner

demonstrate b y such proof that his

substantial interests Ð could reasonably be

affected by . . . [the] proposed

activities.Ñ

Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't of Envtl. Prot. ,

14 So. 3d 1076, 1078 (Fla. 4th DCA 2009) (citing Peace

River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co . ,

18 So. 3d 1079, 1083 (Fla. 2d DCA 2009) ; and Hamilton C nty . Bd.

of Cnty. Comm'rs v. State, Dep't of Envtl. Reg. , 587 So. 2d 1378

(Fla. 1st DCA 1991)); see also St. Johns Riverkeeper, Inc. v.

St. Johns River Water Mgmt. Dist. , 54 So. 3d 1051, 1055 (Fla.

5th DCA 2011) (ÐUltimately, the ALJ's conclusion adopted by the

Governing Board that there was no proof of harm or that the harm

would be offset went to the merits of the challenge, not to

standing.Ñ).

47 . Petitioner all eged standing based on its ownership of

riparian property adjacent to the site of proposed Commercial

Unit A Dock.

48 . Petitioner alleged that the p roposed Permit and SSL

Authorization would affect navigation in the Si nger Island

Channel , would affect its ability to use its riparian area

adjacent to the p roposed Commercial Unit A Dock , and will result

in increased traffic and vessel queueing within PetitionerÓs

riparian area. These concerns over impacts to navigation

and riparian rights are pre cisely the type of injuries an

administrative hearing on the Application is designed

to protect .

49 . The allegations of navigational impairment meet the

second prong of the Agrico test, that is, this proceeding is

designed to protect the adjacent owners from potential adverse

impacts on navigation caused by the p roposed Commercial Unit A

Dock , impacts that are the subject of chapter s 253 and 373 , and

the rules adopted thereunder.

50 . The question for determination as to the first prong

of the Agrico test is whether Petitioner has alleged injuries in

fact of sufficient immediacy as a result of the proposed Permit

to entitle it to a section 120.57 hearing. Ð[T] he injury - in -

fact standard is met by a showing that the petitioner has

sustained actual or i mmediate threatened injury at the time the

petition was filed, and Ò[t]he injury or threat of injury must

be both real and immediate, not conjectural or hypothetical.ÓÑ

S. Broward Hosp. Dist. v. Ag. for Health Care Admin. , 141 So. 3d

678, 683 (Fla. 1st D C A 2014 ) ( citing Vill . Park Mobile Home Ass'n

v. Dep't of Bus. & Prof Ól Reg . , 506 So. 2d 426, 433 (Fla. 1st

DCA 1987) ) .

51 . Petitioner has sufficiently alleged that the proposed

Commercial Unit A Dock has the potential to result in

navigational impairment sufficient to meet the standard of an

Ðinjury in fact which is of sufficient immediacy to entitle them

to a section 120.57 hearing . Ñ

52 . Respondent s have standing as the a pplicant s for the

Permit. Ft. Myers Real Estate Holdings, LLC v. Dep't of Bus. &

Prof'l Reg. , 53 So. 3d 1158, 1162 (Fla. 1st DCA 2011); Maverick

Media Group v. DepÓt of Transp. , 791 So. 2d 491, 492 - 493

(Fla. 1st DCA 2001) .

Nature of the Proceeding

53 . This is a de novo proceeding, intended to formulate

final agency action and not to review action taken earlier and

preliminarily. Young v. DepÓt of Cmty. Aff. , 625 So. 2d 831,

833 (Fla. 1993); Hamilton Cnty. Bd. of Cnty. Comm'rs v. Dep't of

Envtl. Reg . , 587 So. 2d at 1387; McDonald v. DepÓt of Banking &

Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA 1977).

B urden and Standard of Proof

54 . Section 120.569(2)(p) provides that:

For any p roceeding arising under

chapter 373, chapter 378, or chapter 403, if

a nonapplicant petitions as a third party to

challenge an agency's issuance of a license,

permit, or conceptual approval, the order of

presentation in the proceeding is for the

permit applicant to present a prima facie

case demonstrating entitlement to the

license, permit, or conceptual approval,

followed by the agency. This demonstration

may be made by entering into evidence the

application and relevant material submitted

to the agency in support of the application,

an d the agency's staff report or notice of

intent to approve the permit, license, or

conceptual approval. Subsequent to the

presentation of the applicant's prima facie

case and any direct evidence submitted by

the agency, the petitioner initiating the

actio n challenging the issuance of the

permit, license, or conceptual approval has

the burden of ultimate persuasion and has

the burden of going forward to prove the

case in opposition to the license, permit,

or conceptual approval through the

presentation of competent and substantial

evidence.

55 . The A pplicants made their prima facie case of

entitlement to the ERP by entering into evidence the complete

application files and supporting documentation , and the

D epartmentÓs Consolidated Environmental Resource Permit and

Recommended Intent to Grant State - owne d Submerged Lands

Authorization , Permit No. 50 - 0147856 - 003 - EI . In addition, the

A pplicants presented the testimony of expert and lay witnesses

in support of the application . With the A pplicants having m ade

their prima facie case, the burden of ultimate persuasion is on

Petitioner to prove its case in opposition to the ERP by a

preponderance of the competent and substantial evidence , and

thereby prove that the Applicants failed to provide r easonable

assur ance that the standards for issuance of the ERP were met.

56 . A n authorization to use sovereignty lands is governed

by chapter 253 and is not a Ðlicense, permit, or conceptual

approvalÑ under chapter s 373, 378, or 403. Therefore, the

modified burden of proof established in section 120.569(2)(p)

does not apply to the SSL Authorization . Thus, the Applicants

bear the burden of demonstrating, by a preponderance of the

evidence, entitlement to sovereignty lands approval . Fla. Dep't

of Transp. v. J.W. C. Co. , 396 So. 2d 778, 788 (Fla. 1st DCA

1981 ); Save O ur Creeks, Inc. v. Fla. Fish & Wildlife Conser.

CommÓn , Case No. 12 - 3427 (Fla. DOAH July 3, 2013; Fla. DEP

Jan. 14, 2014).

57 . The standard of proof is the preponderance of the

evidence. § 120.57(1) (j) , Fla. Stat.

Reasonable Assurance Standard

58 . I ssuance of the proposed Permit i s dependent upon

there being reasonable assurance that the activities authorized

will meet applicable standards.

59 . Reasonable assurance means Ða substantial likelihood

that the project will be successfully implemented.Ñ

Metropolitan Dade Co. v. Coscan Fla., Inc. , 609 So. 2d 644,

648 (Fla. 3d DCA 1992). Reasonable assurance does not require

absolute guarantees that the applicable conditions for issuance

of a permit have been satisfied. Furthermore, speculation or

subjective beliefs are not sufficient to carry th e burden of

presenting contrary evidence or proving a lack of reasonable

assurance necessary to demonstrate that a permit should not be

issued. FINR II, Inc. v. CF Indus . , Inc. , Case No. 11 - 6495

( Fla. DOAH Apr . 30, 2012; Fla. DEP June 8, 2012).

ERP Permi tting Authority

60 . Section 373.414(1) provides, as pertinent to the

issues in this proceeding, that:

As part of an applicantÓs demonstration that

an activity regulated under this part will

not be harmful to the water resources or

will not be inconsistent with the overall

objectives of the district, . . . the

department shall require the applicant to

provi de . . . reasonable assurance that such

activity in, on, or over surface waters or

wetlands, as delineated in s. 373.421(1), is

not contrary to the public interest . . . .

(a) In determining whether an activity,

which is in, on, or over surface waters or

wetlands, as delineated in s. 373.421(1),

and is regulated under this part, is not

contrary to the public interest . . . the

department shall consider and balance the

following criteria:

1. Whether the activity will adversely

affect the public health, s afety, or welfare

or the property of others;

* * *

3. Whether the activity will adversely

affect navigation or the flow of water or

cause harmful erosion or shoaling [.]

61 . Pursuant to its rulemaking authority, the D EP adopted

rule 62 - 330.302 , which establish es the standards applicable to

this proceeding.

62 . Rule 62 - 330.302(1)(a) provides, in pertinent part,

that:

(1) In addition to the conditions in

rule 62 - 330.301, F.A.C., to obtain an

individual or conceptual approval permit

under this chapter, an applicant must

provide reasonable assurance that the

construction, alteration, operation,

maintenance, repair, removal, and

abandonment of a project:

(a) Located in, on, or over wetlands or

other surface waters will not be contrary to

the pub lic interest, . . . a s determined by

balancing the following criteria as set

forth in sections 10.2.3 through 10.2.3.7 of

Volume I:

1. Whether the activities will adversely

affect the public health, safety, or welfare

or the property of others;

* * *

3. Whether the activities will adversely

affect navigation or the flow of water or

cause harmful erosion or shoaling [.]

63 . The A.H. has been adopted for use by the DEP and the

S tateÓs five wa ter management districts. Fla. Admin. Code

R. 62 - 330.010(4 ). The A.H. was developed Ð to help persons

understand the rules, procedures, standards, and criteria that

apply to the environmental resource permit (ERP) program under

Part IV of Chapter 373 of the Florid a Statutes (F.S.).Ñ

A.H. § 1.0.

64 . Section 10.2.3 of the A.H., entitled Public Interest

Test, provides guidance and elaboration for rule 62 -

330.302(1)(a) and provides, in pertinent part, that:

In determining whether a regulated activity

located in, on, or over wetlands or other

surface waters is no t contrary to the public

interest, . . . T he Agency shall consider

and balance, and an applicant must address,

the following criteria:

* * *

(a) Whether the regulated activity will

adversely affect the public health, safety,

or welfare or the property of others

(subparagraph 62 - 330.302(1)(a)1, F.A.C.);

* * *

(c) Whether the regulated activity will

adversely affect navigation or the flow of

water or cause harmful erosion or shoaling

(subparagraph 62 - 330.302(1)(a)3, F.A.C.) .

Public Health, Safety, or Welfare or the Property of Others

65 . Section 10.2.3.1 of the A.H., entitled Public Health,

Safety, or Welfare or the Property of Others , provides , with

regard to the issues raised in this case, that:

In reviewing and balancing the criterion

regarding public health, safety, welfare and

the property of others in section 10.2.3(a),

above, the Agency will evaluate whether the

regulated activity located in, on, or over

wetlands or other surface waters will cause:

(a) An environmental hazard to public

heal th or safety or improvement to public

health or safety with respect to

environmental issues. Each applicant must

identify potential environmental public

health or safety issues resulting from their

project. Examples of these issues include:

. . . aids t o navigation; . . . and similar

environmentally related issues. For

example, the installation of navigational

aids may improve public safety and may

reduce impacts to public resources [.]

66 . Although Ð[w]hether the Applicant has provided FDEP

and the Board with reasonable assurances that the Expanded

Buccaneer Dock will not threaten health, public safety or

welfare, or will not otherwise be in contravention of public

interestÑ was generally identified as an issue for disposition

in the JPS, that rule, and the corresponding provisions of the

A.H. section 10.2.3.1, are clearly directed towards

Ðenvironmental hazardsÑ and to Ðpublic health or safety with

respect to environmental issues.Ñ

67 . Subs ection s 10.2.3.1(b), (c), and (d) are inapplicable

to this proceeding. As to sub section 1 0.2.3.1(a) , t here has

been no suggestion that navigational aids would remedy or

influence any of the navigational hazards alleged by

Petitioners . Thus, it is concluded that the proposed Commercial

Unit A Dock meets the standards established in r ule 62 -

330.302(1)(a)1. , and section 10.2.3.1 of the A.H. for issuance

of the ERP .

Navigation

68 . Section 10.2.3.3 of the A.H., entitled Navigation,

Water Flow, Erosion and Shoaling, provides, in pertinent part,

as follows:

In reviewing and balancing the criterion on

navigation, erosion and shoaling in

section 10.2.3(c), above, the Agency will

evaluate whether the regulated activity

located in, on or over wetlands or other

surface waters will:

(a) Significantly impede navigability or

enhance navigability. The Agency will

consider the current navigational uses of

the surface waters and will not speculate on

uses t hat may occur in the future . . . .

Applicants proposing to construct docks,

piers and other works that extend into

surface waters must address the continued

navigability of these waters. An

encroachment into a marked or customarily

used navigation channe l is an example of a

significant impediment to navigability.

69 . The proposed Commercial Unit A Dock will not encroach

into a marked or customarily used navigation channel.

70 . Application of the ERP public interest navigation

standard has been appl ied as follows:

ÐNavigationÑ in terms of the public interest

criteria is primarily associated with the

use of publicly used shipping lanes or

channels. ÐNavigationÑ and ÐRecreationÑ do

not mean the preservation of usual

recreational routes or a guarantee of onesÓ

former ease of access to and from oneÓs

dock.

* * *

Each littoral property owner has a right,

equal to that of his neighbors, to wharf out

to navigable depths for the purpose of

ingress and egress by water. This right is

balanced by the publi c interest in

preventing . . . infringement on the general

rights of the public to use public bodies of

water for navigation and recreation.

Clarke v. Melton , DOAH Case No . 89 - 6051, RO at 20

( Fla. DOAH Oct. 16, 1990; Fla. DEP Nov. 30, 1990).

71 . In the Clarke v. Melton Final Order, the Secretary of

the D EP established that :

ÐNavigation Ñ in terms of the public interest

criteria is primarily associated with the

use of publicly used shipping lanes or

channels. This conclusion properly reflects

the Department's legal interpretation of

Section 403.918(2)(a)3., Florida Statutes,

[now set fort h in section 373.414(1)(a)3. ]

as reflected in previous final orders of the

Department.

Id. , FO at 17 ; see also Rood v. Hecht and DepÓt of Envt l . Prot. ,

Case Nos. 98 - 3879 and 9 8 - 3880 ( Fla. DOAH Mar. 10, 1999; Fla.

DEP Apr. 23, 1999) .

72 . Petitioner failed to prove, by a preponderance of

competent and substantial evidence that the proposed ERP would

be contrary to the public interest. The e vidence demonstrates

that the Commercial Unit A Dock will not adversely impact

navigation within t he Singer Island Channel, and will not

adversely impact public safety through creation of unsafe

conditions in the Singer Island Channel.

73 . I t is concluded that the proposed Commercial Unit A

Dock , having no impact on publicly - used shipping lanes or

channels, meets the s tandards established in r ule 62 -

330.302(1)(a)3. and section 10.2.3.3 of the A.H. for issuance of

the ERP.

ERP Conclusion

74 . Section 373.414(1)(a) requires that the DEP Ðshall

consider and balanceÑ seven factors, which include the e ffects

on navigation as described above . An adverse impact for one of

the seven factors does not necessarily require a determination

that the project is contrary to the public interest. Rather,

all of the seven factors must be collectively considered to

determine whether, on balance, a proposed project satisfies the

public interest test. 1800 Atlantic Developers v. DepÓt of

Envtl. Reg. , 552 So. 2d 946, 953, 957 (Fla. 1st DCA 1989);

Last Stand, Inc. v. Fury Mgmt., Inc. and DepÓt of Envtl. Prot. ,

Case No. 12 - 2574 ( Fla. DOAH Dec. 31, 2012; Fla. DEP Feb. 7,

2013) . There was no dispute that the public interest criteria

unrelated to navigation have been met. There are no reasonably

anticipated adverse impacts on navigation from the construction

of the Commerc ial Unit A Dock.

75 . For the reasons set forth herein, Petitioner did not

meet its burden of demonstrating that the ERP should not be

issued for the reasons identified in the Amended Petition and

the JPS.

SSL Authorization Standards

76 . Pursuant to its rulemaking authority, the BTIITF

adopted rule 18 - 21.004, which establishes the applicable

standards for issuance of the SSL Authorization and which

provides, in pertinent part, as follows:

The following management policies,

standards, an d criteria shall be used in

determining whether to approve, approve with

conditions or modifications, or deny all

requests for activities on sovereignty

submerged lands . . . .

* * *

(3) Riparian Rights.

* * *

(c) All structures and other activi ties

must be designed and conducted in a manner

that will not unreasonably restrict or

infringe upon the riparian rights of

adjacent upland riparian owners.

(d) Except as provided herein, all

structures, including mooring pilings,

breakwaters, jetties an d groins, and

activities m ust be set back a minimum of

25 feet inside the applicantÓs riparian

rights lines . . . .

* * *

(4) Standards and Criteria for Private

Residential Multi - family Docks and Piers.

* * *

(b) Private residential multi - family docks

with three or more wetslips . . . shall be

limited as follows.

* * *

2. A cumulative preemption of no more than

forty square feet of sovereignty submerged

land for each linear foot of the applicantÓs

common riparian shoreline along sovereignty

submerged land on the affected waterbody

within a single plan of development.

However, an exception shall be granted for a

private residential multi - family dock to

exceed the maximum cumulative preemption

provided that all of the following

conditions are m et.

* * *

e. A net positive public benefit,

acceptable to the Board of Trustees as

beneficial to the public, is provided to

offset the increase in preempted area . . .

* * *

(7) General Conditions for Authorizations.

All authorizations granted by rule or in

writing under Rule 18 - 21.005, F.A.C., except

those for geophysical testing, shall be

subject to the general conditions as set

forth in paragraphs (a) through (i) below.

The general conditions shall be part of all

authorizations under this cha pter, shall be

binding upon the grantee, and shall be

enforceable under Chapter 253 or 258,

Part II, F.S.

* * *

(f) Structures or activities shall not

unreasonably interfere with riparian

rights . . . .

(g) Structures or activities shall not

crea te a navigational hazard.

Riparian Rights

77 . Riparian rights are legal rights , incident to lands

bounded by navigable waters , and are derived from common law as

modified by statute. Haynes v. Carbonell , 532 So. 2d 746, 748

(Fla. 3d DCA 1988). While recognized as legal property rights,

riparian rights are distinguishable from classic real property

interests due to the underlying state ownership of the water

bottom adjacent to the private riparian upland property.

Consequently, riparian rights have been described by Florida

courts as qualified rights. Freed v. Miami Pier Corp. ,

112 So. 841, 844 (Fla. 1927). Appurtenant to ownership of the

waterfront upland, the riparian owner enjoys a right to an

unobs tructed view across the water and a superior right to

access the water from his property. The riparian owner

possesses a ÐqualifiedÑ right to erect wharves, piers , or docks

to facilitate access to navigable water from his or her riparian

property. Theise n v. Gulf F. & A. Ry. Co. , 78 So. 491, 501

(Fla. 1918). Finally, riparian owners possess a common law

right to make access to the navigable waters publicly available

in a commercial context. Board of Tr s . of Int. Impust Fund

v. Madeira Beach Nominee , Inc. , 272 So. 2d 209, 2 14, 744

(Fla. 2d DCA 1973).

78 . PetitionerÓs and the Applicants Ó status as riparian

owners Ðhas historically entitled them to greater rights with

respect to the waters that border their land, than the public

generally. See Bd. of Tr s . of the Int. Impust Fund v.

Medeira Beach Nominee, Inc. , 272 So. 2d at 214. However,

neither have the exclusive right to use the water that borders

their respective properties. Each only has the right not to be

deprived of the ability to navig ate and conduct commerce from

their riparian property. Ferry Pass ShippersÓ & InspectorsÓ

Ass Ón v. White Ó s River InspectorsÓ & ShippersÓ AssÓn ,

48 So. 643, 646 (Fla. 1909).

79 . Both Petitioner and the Applicants are entitled to

share in a fair and reasonable opportunity to access the water s

of Lake Worth . Johnson v. McCowen , 348 So. 2d 357 (Fla. 1st

DCA 1977); 1010 Seaway Drive, Inc. v. Phifer , Case No. 82 - 3029

( Fla. DOAH Apr. 29, 1983; Fla. DER June 3, 1983 ) .

80 . Petitioner and the Applicants have agreed upon the

location of the common riparian line for purposes of this case ,

and the DEP has not been asked to determine the riparian

boundary. Where boundary lines are not in dispute, the DEP has

the authority to determine whether an application for a dock

vio lates the rule requirements of c hapter 18 - 21, and whether a

proposal would Ðunreasonably infringe upon traditional, common

law riparian rightsÑ of adjacent riparian owners. See, e.g. ,

Pedicini v. Stuart Yacht Corp . , Case No. 07 - 4116 ( Fla. DOAH

Feb. 20, 2008 ; Fla. DEP May 19, 2008 ); Samuels v. Imhoof ,

Case No. 03 - 2586 ( Fla. DOAH Feb. 17, 2004 ; Fla. DEP May 28,

2004 ).

81 . A minimum 25 - foot setback is required of Petitioner

and Commercial Unit A pursuant to rule 18 - 21.004(3)(d).

Commercial Unit A has met the set back that is routinely accepted

as adequate to avoid a navigational hazard, proposing a 25 - foot

setback facing the 144 Property riparian line.

82 . It is well - established, with regard to the riparian

right to build a dock, that:

The applicable rule is designed to prevent

ÐunreasonableÑ infringements on an upland

property owner's riparian rights. See Fla.

Admin. Code R. 18 - 21.004(3). However, some

infringement will occur and it is the trier -

of - fact (the ALJ) who is called upon to

weigh the specific facts regarding the

impact on riparian rights. See , e.g. , Shore

Village Property Owners' Assoc., Inc. v.

Fla. Dep't of Envtl. Protection , 824 So.2d

208, 210 - 211 (Fla. 4th DCA 2002)(stating

that the trial court heard testimony and

revie wed evidence to determine the existence

of riparian rights and whether those rights

included the building of a dock as

proposed).

Trump Plaza of the Palm Beaches Condo. AssÓn v. Palm Beach Cnty .

and DepÓt of Envtl. Prot. , Case No. 08 - 4752, FO at 17 - 18

( Fla. DOAH Sept. 24, 2009; Fla. DEP Nov. 6, 2009).

83 . The proposed Commercial Unit A Dock will not

unreasonably restrict or infringe upon Petitioner Ós riparian

rights. It does not render the 144 Dock unusable or unsafe,

either in its current configuration or as it may be enlarged in

the future. In light of the facts and circumstances of this

case, any Ðrestrict[ion] or infringe[ment]Ñ on the use of the

144 Dock is not unreasonable, does not create a Ðnavigational

hazard, Ñ and does not have the effect of preventing reasonable

use of the waters in the vicinity of the 144 Dock. See , e.g. ,

Rosenblum v. Zimmet and DepÓt of Envtl. Prot. , Case No. 06 - 2859

( Fla. DOAH Oct. 23, 2007; Fla. DEP Dec 11, 2007).

84 . Based on the fin dings of fact and the foregoing

conclusions of law, i t is concluded that the proposed Commercial

Unit A Dock will not unreasonably restrict or infringe upon

Petitioner Ós riparian rights attendant to the 144 Property , and

meets the standards established in r ule 18 - 21. 004(3)(c) for

issuance of the SSL Authorization .

Navigational Hazard

85 . Unlike the Ðpublic interestÑ navigational standards

for obtaining an ERP, which are primarily associated with the

use of publicly - used shipping lanes or channels, the

Ðnavigational hazardÑ standard for obtaining a SSLL pursuant to

rule 18 - 21.004(7), tho ugh not defined, includes unsafe

conditions adjacent to docks and boat slips. Pirtle v. Voss and

DepÓt of Envtl. Prot. , Case No. 13 - 0515 ( Fla. DOAH Sep t . 23,

2013; Fla. DEP Dec. 26, 2013). A mere inconvenience does not

constitute the type of navigational hazard contemplated by the

rule. Woolshlager v. Rockman and DepÓt of Envtl. Prot. , Case

No. 06 - 3296 ( Fla. DOAH May 5, 2007; Fla. DEP June 22, 2007).

86 . A preponderance of the evidence in this case supports

a conclusion that the proposed Commercial U nit A Dock does not

unreasonably interfere with PetitionerÓs riparian rights of

navigation and does not create a navigational hazard in the

vicinity of the 144 Dock or in the Singer Island Channel . Thus,

the Applicants have met the standards for issuance of the SSLL

Authorization. See Shore Vill. Prop. Owners' Assn . v. Fla.

Dep't of Envtl. Prot. , 824 So . 2d 208, 210 - 211 (Fla. 4th

DCA 2002).

Sufficient Upland Interest

87 . Rule 18 - 21.004(3)(b) provides , in pertinent pa rt, that

Ð[s]atisfactory evidence of sufficient upland interest is

required for activities on sovereignty submerged lands riparian

to uplands.Ñ

88 . Rule 18 - 21.003(60) provides that:

ÐSatisfactory evidence of sufficient upland

interestÑ shall be demonstrat ed by

documentation, such as . . . condominium,

homeowners or similar association documents

that clearly demonstrate that the holder has

control and interest in the riparian uplands

adjacent to the project area and the

riparian rights necessary to conduct the

proposed activity.

89 . Commercial Unit A relies on the rights granted to it

under the Declaration, which establishes Commercial Unit AÓs

rights to use Buccaneer Condominium property and common

elements. Pursuant to Article VIII, Section 8.3 of the

Declaration:

To the extent permitted by law, any and all

riparian rights to add additional dock

spaces is hereby reserved, granted and

assigned to Unit A and the Owner thereof

. . . . Without limiting the foregoing, the

Owner of C ommercial Unit A shall have the

right, power, and authority, to the extent

permitted by law, to construct any

additional dock spaces in the waterway

contiguous to the Condominium property . . .

provided, however, the use thereof shall be

deemed to be a nd have been designated and

assigned perpetually and exclusively to and

as an appurtenance to Commercial Unit A.

90 . Commercial Unit A has a sufficient upland interest for

the construction of the Commercial Unit A Dock over sovereignty

submerged lands .

Net Positive Public Benefit

91 . Petitioner has argued that the Permit should be denied

because the Applicants did not demonstrate that the Commercial

Unit A Dock would provide a net positive public benefit as

required by rule 1 8 - 21.004(4)(b)2.e. R ule 18 - 21.004(4)(b)2.e.

applies only to p rivate residential multi - family docks . The

Commercial Unit A Dock is not a private residential multi - family

dock . Thus, the Applicants were not required to demonstrate

that the permitted project would provide a net po sitive public

benefit .

BTIITF Approval

92 . The DEP in this case exercised its delegated authority

to take final agency action on the SSL Authorization , without

action by the BTIITF , as an activity for which the DEP has

permitting responsibility. § 253.002(2), Fla. Stat.;

Fla. Admin. Code R. 18 - 21.0051(2).

93 . Rule 18 - 21.0051(2) provides, in pertinent part, that:

The Secretary of the Department of

Environmental Protection . . . [is]

delegated the authority to review and take

final agency action on applications to use

sovereignty submerged lands when the

application involves an activity for which

that agency has per mitting responsibility,

. . . unless the final agency action is to

approve any of the following proposed

activities:

(a) Docki ng fa cilities with more than

50 slips, and additions to existing docking

facilities where the number of proposed new

slips exceeds 10% of the existing slips and

the total number of existing and proposed

additional slips exceeds 50;

(b) Docking facilities havi ng a preempted

area, as defined in Rule 18 - 21.003, F.A.C.,

of more than 50,000 square feet, and

additions to existing docking facilities

where the size of the proposed additional

preempted area exceeds 10% of the existing

preempted area and the total of ex isting and

proposed additional preempted area exceeds

50,000 square feet;

* * *

(e) Applications involving approval of an

exception to the maximum cumulative

preemption for a private residential multi -

family dock or pier in accordance with

subparagraph 18 - 21.004(4)(b)2., F.A.C.

(emphasis added).

94 . The Buccaneer Dock is a Ðprivate residential multi -

family dock or pierÑ as defined in rule 18 - 21.003(47),

exclusively serving the 18 - unit Buccaneer Condominium.

Or iginally constructed in 1958, it is a grandfathered structure.

Although the Buccaneer Dock was brought under lease

( see rule 18 - 21.002), it is not required to meet the management

policies, standards, and criteria standards for multi - family

residential doc k facilities pursuant to rule 18 - 21.004(4),

including the 40:1 preempted area to shoreline ratio. There is

no proposed extension or material alteration of the Buccaneer

Condominium Dock.

95 . Rule 18 - 21.004(4) (b)2. , which establishes the 40:1

rule , does not apply to the Commercial Unit A Dock because the

rule does not apply to commercial slips.

96 . The combined Buccaneer Condominium Dock and Commercial

Unit A Dock will have fewer than 50 slips. The preempted area

encompassed by the SSLL , as modi fied , will not exceed 50,000

square feet .

97 . There was no persuasive evidence that the Buccaneer

Condominium Dock and the Commercial Unit A Dock are part of a

common plan of development designed to operate as a single dock

for the Buccaneer Condominium. The Buccaneer Condominium Dock

will remain as dedicated to the owners of Buccaneer Condominium

units. The Commercial Unit A Dock , which will be under legally

separate ownership, will be a first - come, first - served

commercial dock for the primary purpose of allowing transient

dockage for patrons of the restaurant on Commercial Unit A.

98 . None of the instances that require BTIITF approval,

rather than delegated DEP approval, ar e present in this case.

Thus, the SSL Authorization was not required to be presented to

the BTIITF pursuant to rule 18 - 21.00 5 1 (2) .

SSL Authorization Conclusion

99 . For the reasons set forth herein, the Applicants met

their burden of demonstrating entitlement to SSL Authorization

and addressed and countered each of the reasons warranting

denial alleged by Petitioner in the Amended Petition and

the JPS.

Conclusion

100 . Petitioner did not meet its burden of ultimate

persuasion that the proposed Commercial Unit A Dock, as

permitted, will adversely affect the public health, safety, or

welfare or the property of others in violation of

rule 62 - 330.302(1)(a)1 . , or w i ll adversely affect navigation in

violation of rule 62 - 330.302(1)(a)3 .

1 0 1 . The Applicants met their burden of demonstrating, by

a preponderance of the evidence, the proposed Commercial

Unit A Dock, as permitted, will not unreasonably interfere

with Petitioner Ós riparian rights in violation of rule s 18 -

21.004(3)(c) and (d) and 18 - 21.004(7)(f), and will not create a

navigational hazard in violation of rule 18 - 21.004(7)(g) . The

Applicants further demonstrated, by a preponderance of the

evidence, that the proposed Per mit will not violate the

40:1 rule established in rule 18 - 2 1.004(4)(b)2 . ; that Commercial

Unit A has a sufficient upland interest to support the issuance

of the SSL Authorization pursuant to r ule 18 - 21.004(3)(b) ; that

Commercial Unit A was not required to demonstrate a net positive

public benefit pursuant to rule 18 - 21.004(4)(b)2.e. ; and that

the DEP was not required to cede its delegated authority to take

final agency action on the SSL Authorization to the BTIITF

pursuant to rule 18 - 21.0051(2) .

102 . Applying the standards of reasonable assurance to the

Findin gs of Fact in this case, it is concluded that reasonable

assurances have been provided by the Applicants that the

activities to be authorized by the Permit will meet the

applicable standards applied by the D EP , including section

373.41 4 ; r ule s 62 - 330. 302 , 18 - 2 1 .00 3 , and 18 - 2 1 .004 , and

18 - 21.0051 ; and the corresponding provisions of the ERP

ApplicantÓs Handbook - Volume I .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law , it is RECOMMENDED that the Department of Environmental

Protection enter a final order approving the Consolidated

Environmental Resource Permit and Recommended Intent to Grant

State - owned Submerged Lands Authorization, Permit No. 50 -

0147856 - 003 - EI to the Applicant s , the Buccaneer Commercial

Unit A , care of Benjamin Sharfi, Trustee of the Benjamin Sharfi

Trust 2002, and the Buccaneer Condominium Association of Palm

Beach Shores, Inc. , subject to the general and specific

conditions set forth therein .

DONE AND ENTERED this 10th day of January , 201 9 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of January , 201 9 .

ENDNOTE S

1 / The A.H. has been adopted by reference and is , therefore , a

ÐruleÑ in and of itself.

2 / Petitioner argues that Ð[t]he former T - head/fueling facility

will become additional dock space within the multi - family

portion of the Buccaneer SSLL, and be used exclusively for

multi - family docking. Therefore, the multi - family portion of

the lease Î which already exceeds the 40:1 rule Î will expand

even further to encompass the area of the former T - head and fuel

dock. Ñ To the contrary, the Permit application and drawings

indicate that the Buccaneer Condominium will lose the fo rmer

T - head, which will instead become the landward terminus of the

Commercial Unit A Dock. T he Buccaneer Condominium Dock will not

expand and will not materially change in its configuration.

Therefore, it does not lose its status as a grandfathered mu lti -

family residential dock.

COPIES FURNISHED :

John W. Wallace, Esquire

Lewis, Longman & Walker , P.A.

Suite 150

245 Riverside Avenue

Jacksonville, Florida 32202

(eServed)

Andrew J. Baumann, Esquire

Rachael B. Santana, Esquire

Lewis, Longman & Walker, P.A.

Suite 1500

515 North Flagler Drive

West Palm Beach, Florida 33401

(eServed)

Richard Green, Esquire

Lewis, Longman & Walker, P.A.

Suite 501 - S

100 Second Avenue South

St. Petersburg, Florida 33701

(eServed)

Joshua D. Miron, Esquire

Shutts & Bowen, LLP

Suite 2100

200 East Broward Boulevard

Fort Lauderdale, Florida 33301

(eServed)

Christopher Hamilton, Esquire

Deborah Getzoff, Esquire

Shutts & Bowen , LLP

4301 West Boy Scout Boulevard

Tampa, Florida 33607

(eServed)

Jason B. Gonzalez, Esquir e

Shutts & Bowen, LLP

Suite 804

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Kirk Sanders White, Esquire

Department of Environmental Protection

Mail St ation 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed )

Robert A. Williams, General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Noah Valenstein, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.