92-001077 Sea Isles Condominium Association Of Bonita Beach, Inc. vs. Board Of Trustees Of The Internal Improvement Trust Fund Status: Closed Recommended Order on Thursday, April 15, 1993.

Summary: Denial of request to modify sovereignty submerged land lease for dock expansion in aquatic preserve.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEA ISLES CONDOMINIUM ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1077

)

BOARD OF TRUSTEES OF THE INTERNAL )

IMPROVEMENT TRUST FUND, )

)

Respondent. )

_____________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the

above-styled case on January 15, 1992, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Robert Routa, Esquire

Post Office Drawer 6506

Tallahassee, Florida 32314-6506

For Respondent: L. Kathryn Funchess, Esquire

Assistant General Counsel

Department of Natural Resources

3900 Commonwealth Boulevard

Mail Station #35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether the Board of Trustees of the Internal Improvement Trust Fund should

grant the request of the Sea Isles Condominium Association to modify an existing

sovereignty submerged land lease to provide for four additional boat slips to an

existing ten slip docking facility.

PRELIMINARY STATEMENT

In 1987, the Board of Trustees of the Internal Improvement Trust Fund

approved a sovereignty submerged land lease for the Petitioner to construct a

ten slip boat docking facility. In 1991, the Petitioner requested that the

lease be modified to provide for four additional boat slips. The Florida

Department of Natural Resources, to which applications for lease are made,

denied the request. The Petitioner thereafter requested formal administrative

hearing. The request was forwarded to the Division of Administrative Hearings

which scheduled and noticed the matter for hearing.

As grounds for the request, the Petitioner asserts that an initial

miscalculation of shoreline resulted in the approved lease permitting fewer

slips that could have been allowed and that it is entitled to the additional

slips. The Petitioner further asserts that the DNR is without authority to

disapprove the request without forwarding the matter to the entire Board of

Trustees.

Petitioner presented the testimony of two witnesses and had exhibits

numbered 1-7 admitted. Respondent presented the testimony of three witnesses

and had exhibits numbered 4-5 admitted. A prehearing stipulation was admitted

as a Hearing Officer's exhibit.

A transcript of the hearing was filed. Both parties filed proposed

recommended orders. The proposed findings of fact are ruled upon either

directly or indirectly as reflected in this Recommended Order, and in the

Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. Sea Isles Condominium Association (Petitioner) is the riparian owner of

lands at 25714 Hickory Boulevard, Bonita Springs, Florida 33923. The

Petitioner's lands lie along the Broadway Channel connecting the Gulf of Mexico

to Estero Bay. There are 84 upland units in the condominium. Some condominium

residents without docking slips have requested that the Petitioner apply for

expansion of the existing facility.

2. The waters adjacent to Petitioner's upland property are located within

the Estero Bay Aquatic Preserve (pursuant to Section 258.39(28), Florida

Statutes) and are designated as Outstanding Florida Waters (OFW) by the

Department of Environmental Regulation (DER).

3. At some point in approximately 1982, the condominium developer sought

approval for the construction of docking facilities.

4. By letter of January 25, 1982, Richard P. Ludington, then Director of

the Division of State Lands of the Department of Natural Resources (DNR),

indicated that there was no objection to the proposed dock project. The parties

to this case have jointly stipulated that the Ludington opinion was based on the

fact that the proposed project was a private non-income producing facility (a

lease therefore not being required) and was not in conflict with any existing

rules.

5. The DER issued permit number 36-42521-5E, dated February 9, 1982, and

the U.S. Army Corps of Engineers issued general permit number SAJ-33, both

approving and authorizing the construction of the docking facility.

6. Although the water body had been designated as an aquatic preserve,

there were no adopted administrative rules regulating such projects at the time

of the initial dock construction.

7. The approved sixteen slip docking facility was constructed along the

margin of the shoreline in 1983 by the developer of the condominium. Due to

extremely shallow water depths, only two of the slips were accessible.

8. At some point thereafter, the Petitioner began efforts to remedy the

unusable slip situation. Initially, the Petitioner desired to dredge the area,

but was unable to secure approval to dredge from regulatory agencies.

9. The Petitioner then began to consider additional solutions. The

solution upon which the Petitioner decided was removal of the existing slips and

construction of an extended boardwalk and dock located in navigable water.

10. On March 28, 1985, the DNR notified the Petitioner that the project

would require approval in the form of a submerged land lease from the Governor

and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust

Fund ("Board").

11. On August 20, 1985, the DER issued permit number 361011295,

authorizing the removal of the existing structure and the construction of a 22

slip docking facility as proposed by the Petitioner.

12. On behalf of the Board, the DNR reviews applications for leases of

sovereignty submerged lands. In reviewing such requests, the DNR calculates the

maximum amount of sovereignty submerged lands which may be preempted by a

proposed facility.

13. According to administrative rule, the area of sovereignty submerged

land preempted by a private residential multi-slip docking facility may not

exceed the total square footage equal to ten times the riparian waterfront

footage of the affected waterbody.

14. DNR's calculation of the affected shoreline indicated that the

Petitioner's riparian waterfront measured 433 feet. Application of the 10:1

ratio would indicate that the area of sovereignty submerged land preempted by

the proposed multi-slip docking facility could not exceed 4330 square feet.

15. As early as 1986, a surveyor employed by the Petitioner believed the

DNR shoreline calculation to be erroneous and determined the Petitioner's

riparian shoreline to be 601 feet.

16. After discussing the discrepancy between measurements, the DNR

representative informed a representative of the Petitioner that Sea Isles could

obtain a mean high waterline survey to determine the actual shoreline footage if

it disagreed with the DNR calculation.

17. Although there is testimony that a survey provided to the DNR

established the mean high waterline, the greater weight of the evidence

establishes that the survey was not identified as a mean high waterline survey,

but as a safe upland line survey. No credible mean high waterline survey was

provided to the DNR by the Petitioner at that time.

18. Abutting the Petitioner's property to the south is a man-made channel

which results in an unnatural extension of the shoreline. Such extensions are

not included in computing the allowable square footage of sovereign submerged

lands because the man-made shoreline does not abut sovereign submerged lands.

It is unclear whether the calculations of shoreline were affected by this

consideration.

19. Despite the discrepancy, the Petitioner reduced the size of the

requested docking facility to include a boardwalk and dock of ten slips

totalling approximately 4300 square feet and extending 208 feet into the

waterbody (approximately 35 percent of the waterbody's width).

20. The length of the extension violates administrative rule provisions

governing extension into a waterbody which are addressed elsewhere herein.

21. On July 23, 1986, Lee County passed a resolution of approval for the

proposed docking facility land lease and granted a variance to Lee County

Ordinance 85-25. The resolution of approval contained additional requirements,

included a provision restricting the approval to not more than ten slips.

22. The Petitioner asserts that the determination of shoreline was

incorrect and was the result of "mutual mistake". The evidence fails to

establish that the Petitioner's acceptance of the DNR's shoreline determination

was based upon "mutual mistake."

23. The evidence establishes that the Petitioner's representatives were

aware of the discrepancy. The fact that the Petitioner agreed to deed a 575

foot conservation easement to the Board (to offset the potential adverse impact

on manatee habitat as discussed elsewhere herein) would suggest that the parties

were aware that the 433 foot measurement was inaccurate. For whatever reason,

the Petitioner agreed to the DNR shoreline and dock calculation which formed the

basis for the lease approved by the Board.

24. Prior to approval of the lease, the Board reviewed a written "public

interest" assessment which indicates that the length of the boardwalk to the

proposed docking facility exceeded standards set by administrative rules.

Pursuant to rule, exceptions to length restrictions may be made only where the

applicant demonstrates that such exception is necessary to insure reasonable

riparian ingress and egress. The Petitioner apparently demonstrated that, given

the location of the existing sand flat, such exception was necessary to provide

ingress and egress.

25. According to the written analysis, the proposed project adversely

impacted the manatee habitat located in the aquatic preserve. The analysis

states that 575 foot conservation easement to the Board would offset the

potential adverse impact on manatee habitat. The Petitioner committed to the

conservation easement in order to meet the public interest test required of all

docking facilities within an aquatic preserve.

26. Special lease condition paragraph 5 requires the Petitioner to record

a conservation easement for approximately 575 linear feet of shoreline in

perpetuity to run with the land. The provision requires that documentation of

the recording of the easement be provided to the Board within thirty days of the

Board action and prior to execution of the lease.

27. The lease conditions clearly indicate that the Petitioner will not

seek authority to expand the docking facility. Special lease condition

paragraph 5 prohibits any additional docking facilities or any other such

development along the lessee's shoreline.

28. Review of proposed special lease condition paragraph 6 (as compared to

the staff recommendation and a subsequent affidavit executed by the Petitioner's

representative on June 6, 1987) indicates that the paragraph appears to contain

a typographical error in deleting the word "not" from the condition. The

greater weight of the evidence establishes that the Petitioner agreed not to

request authorization to dredge the docking area or channel or to request

additional expansion of the facility.

29. On April 21, 1987, the Board, apparently acting against the staff

recommendation, voted to grant to the Petitioner a submerged land lease for the

construction of a ten slip facility. Representatives of the Petitioner appeared

before the Board during consideration and approval of the lease.

30. On June 6, 1987, a representative of the Petitioner executed an

affidavit on behalf of the Petitioner which sets forth the language of special

condition paragraph six as originally proposed. In the affidavit, the

Petitioner's representative agrees not to apply for authorization to dredge the

dock or access channel, or to request expansion of the facility.

31. A deed of conservation easement dated October 21, 1985, and signed by

a representative of the Petitioner, was attached to the materials submitted to

the Board for the April 21, 1987 meeting. Contrary to the lease requirement,

the attached deed of conservation easement was never recorded.

32. In 1986 or 1987, a conservation easement was recorded by the

Petitioner in favor of the Board, but the easement contained no legal

description of the subject property. However, the recorded easement does

prohibit additional docking facilities and waives the Petitioner's rights of

ingress or egress related to any such additional facilities.

33. In early 1991, the Petitioner requested approval to expand the

existing dock from 10 to 14 slip. The expanded structure would preempt 5620

square feet of sovereign submerged land.

34. On May 15, 1991, the DER granted approval of the four slip expansion.

35. On November 27, 1991, the DNR, by letter signed by Michael E. Ashley,

Chief of the Bureau of Submerged Lands and Preserves, denied the requested four

slip expansion. The letter was prepared at the direction and with the approval

of the Director of the Division of State Lands.

36. Mr. Ashley cites two reasons for the denial. First, the request

violated the terms of the existing lease which provides that there will be no

expansion requested. Second, the Petitioner had failed to record the 575 foot

conservation easement which was required by the terms of the original lease.

37. The request for extension was not presented to the Governor and

Cabinet for consideration, but was reviewed by the "agenda review committee" of

the DNR. The committee includes the Deputy Director, two Deputy Assistant

Executive Directors, the General Counsel, and the Cabinet Coordinator for the

DNR. The committee reviews matters which are identified as potentially

requiring Board action to resolve.

38. Where issues exist related to existing sovereignty submerged land

leases, the DNR attempts to resolve the matter without referral to the Board.

The authority to conduct business in this manner has not been reduced to

writing, but is based on verbal direction from the Board and from Cabinet

assistants.

39. Subsequent to the letter of denial issued by Mr. Ashley, the

Petitioner on or about December 30, 1991, filed a conservation easement granting

to the Board, a perpetual interest in a parcel of land lying ten feet landward

of the Safe Upland Line as described in the deed recorded in the records of Lee

County, Florida, (OR 2268, Page 0401) with the Clerk of Court for Lee County.

The parcel of land identified in the deed runs along the shoreline for a

distance of 601 feet. The easement provides for modification by the signed

agreement of the parties.

40. Because the Petitioner seeks to expand an existing lease, it is

required to demonstrate an additional public benefit would result from approval

of the request. The Petitioner has proposed to plant an area of mangroves in

the shallow "sand bar" area located behind the existing slips. There is no

additional public benefit related to the request. The evidence fails to

establish that granting the request to expand the docking facility is in the

public interest.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has jurisdiction over the

parties to and subject matter of this proceeding. Section 120.57(1), Florida

Statutes.

42. The Petitioner has the burden of proof in establishing entitlement to

the requested modification of the existing lease and extension of the docking

facility. Florida Department of Transportation v. JWC Company, Inc., 396 So.2d

778 (Fla. 1st DCA 1981). In this case, the burden has not been met.

43. The Board of Trustees of the Internal Improvement Trust Fund is

charged with the administration, management, control, supervision, conservation,

and protection of sovereign submerged lands. Section 253.03, Florida Statutes.

No person may commence any construction or other activity involving the use of

sovereign lands until such person has received from the Board of Trustees, the

required lease authorizing the proposed use. 253.77, Florida Statutes.

44. Pursuant to Section 258.39(28), Florida Statutes, relevant portions of

sovereignty submerged lands in Lee County, Florida have been designated as the

Estero Bay Aquatic Preserve. An "aquatic preserve" is an exceptional area of

submerged lands and its associated waters set aside for being maintained

essentially in its natural or existing condition. Section 258.37(1), Florida

Statutes. The Board has promulgated rules adopting management policies,

standards and criteria which are utilized in determining whether to approve,

approve with conditions or modifications or deny requests for activities on

sovereign lands within aquatic preserves. Rule 18-20.004, Florida

Administrative Code.

45. In 1987, the Board approved with conditions the request of the

Petitioner for a lease of sovereignty submerged lands within the Estero Bay

Aquatic Preserve. Insofar as relevant to this case, the conditions were two: 1)

a conservation easement would be timely recorded; and 2) the Petitioner would

not request that the approved dock facility be expanded.

46. The Petitioner failed to meet the conditions of the lease in that the

conservation easement was not timely recorded (and when recorded was incomplete)

and by requesting expansion of the existing facility.

47. The Petitioner asserts that it is entitled to additional dock space

because the DNR calculation of the Petitioner's shoreline was allegedly

erroneous. The evidence does not support the assertion. Prior to Board

approval of the original lease agreement, a surveyor employed by the Petitioner

disputed the DNR shoreline calculation. The matter was discussed by the parties

and the DNR representative advised the surveyor on the manner in which the DNR

determination could be challenged. For whatever reason, the Petitioner

knowingly chose to reduce the size of the facility to comply with the DNR

shoreline determination and agreed not to seek an expansion of the facility.

The evidence fails to justify revisiting the issue.

48. The Petitioner asserts that application of the Rule 18-20.004, Florida

Administrative Code, requires that the request for expansion be approved. Rule

18-20.004(4)(b), Florida Administrative Code, provides that the evaluation and

determination of the reasonable riparian rights of ingress and egress for

private residential multi-slip docks shall be based upon the number of linear

feet of riparian shoreline. The rule provides that the evaluation and

determination of the reasonable riparian rights of ingress and egress for

private residential multi-slip docks shall be based upon the number of linear

feet of riparian shoreline, Rule 18-20.004(4)(b), Florida Administrative Cod,

and further provides that the area of sovereignty submerged land preempted by a

private residential multi-slip docking facility shall not exceed the square

footage amounting to ten times the riparian waterfront footage of the affected

waterbody of the applicant. Rule 18-20.004(5)(c)1., Florida Administrative

Code, (emphasis supplied).

49. The cited rule was in existance when the lease agreement was first

executed by representatives of the Petitioner and the Board. Any right to

challenge the rule or the application of the rule to the facts in this case was

waived when the parties entered into the original lease. There are no facts

which justify a modificaiton of the existing lease agreement to provide for

expansion of the current facility.

50. Finally it should be noted that, even were this request unrelated to

any prior or existing lease, the request would be properly denied. Sale, lease,

or transfer of sovereignty lands is statutorily prohibited except where such is

in the public interest. Section 18-20.004(2), Florida Administrative Code, sets

forth the criteria to be used in determining whether a lease is in the public

interest.

51. In evaluating requests for the lease of sovereign submerged lands, a

balancing test is utilized to determine whether the social, economic and/or

environmental benefits clearly exceed the costs. Rule 18-20.004(2), Florida

Administrative Code. Any benefits that are balanced against the costs of a

particular project shall be related to the affected aquatic preserve. Rule 18-

20.004(2)(b)1., Florida Administrative Code.

52. Because the addition of dock slips would likely result in additional

marine traffic in the aquatic preserve, the approval of this request would

result in increased navigational hazards and congestion, identified at Rule 18-

20.004(2)(c)5., Florida Administrative Code, as a type of "cost" which must be

considered in determining whether approval of a lease should be granted. The

Petitioner's offer to plant mangroves in a portion of the existing sand flat is

the public benefit proposed to balance the increased navigational congestion.

The evidence is insufficient to establish that such action would be sufficient

to meet the public benefit test.

53. The Petitioner introduced a videotaped "tour" of the surrounding area,

intending to display the larger dock facilities which neighboring condominium

residents enjoy. The evidence fails to establish whether any of the docking

facilities identified were constructed under valid permits or whether they are

currently in compliance with the rules cited herein. The videotape is

irrelevant.

54. The Petitioner finally asserts that this request should have been

forwarded to the entire Board for determination, rather than being rejected by

the DNR at the staff level.

55. The DNR Division of State Lands performs all staff duties and

functions related to acquisition, administration, and disposition of state

lands, title to which is or will be vested in the Board of Trustees. Section

253.002, Florida Statutes.

56. There was uncontradicted testimony that the Board has delegated,

albeit orally, such responsibility for such matters to the DNR. While a written

delegation would clarify this issue, in the absence of credible information to

the contrary, the evidence establishes that the DNR has the authority to act in

this case. In that this Recommended Order is issued to the Board of Trustees

for their consideration, the Petitioner's request to have the matter considered

by the Board has been satisfied.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Board of Trustees

of the Internal Improvement Trust Fund enter a Final Order denying the request

of Sea Isles Condominium Association to modify the existing sovereignty

submerged land lease to provide for four additional boat slips to their existing

ten slip docking facility.

DONE and RECOMMENDED this 15th day of April, 1993 in Tallahassee, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of April, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1077

The following constitute rulings on proposed findings of facts submitted by

the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and

incorporated in the Recommended Order except as follows:

17. Rejected, not supported by the greater weight of credible and

persuasive evidence.

19. Rejected as to comments by Miller, irrelevant.

20-21. Rejected, irrelevant.

23. Rejected as to 6,010 square feet of permissible preemption. Based

upon shoreline calculation which is not supported by the greater weight of

credible and persuasive evidence.

24. Rejected, irrelevant. The manatee information was required under the

conditions of the existing lease, and do not constitute a benefit to be

considered in addressing the request to modify the lease.

Respondent

The Respondent's proposed findings of fact are accepted as modified and

incorporated in the Recommended Order except as follows:

16. Rejected, unnecessary.

COPIES FURNISHED:

The Board of Trustees of the

Internal Improvement Trust Fund

c/o Kenneth Plante, General Counsel

Department of Natural Resources

3900 Commonwealth Boulevard

Mail Station #10

Tallahassee, FL 32399-3000

Robert Routa, Esquire

Post Office Drawer 6506

Tallahassee, Florida 32314-6506

L. Kathryn Funchess, Esquire

Assistant General Counsel

Department of Natural Resources

3900 Commonwealth Boulevard

Mail Station #35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least ten days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the Final

Order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the Final Order in this case.