96-000736 James Castoro And Winifred Castoro; Jelks H. Cabaniss, Jr.; Anne Cabaniss; Stanley Goldman And Gloria Goldman; Franklin H. Pfeiffenberger; And Katy Stenhouse vs. Roy Palmer And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, September 1, 1998.

Summary: Proposed dock in OFW met requirements for noticed general ERP and consent of use. Standard permitting requirements didn't apply to noticed general ERP. Applicant had riparian rights for consent of use.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES CASTORO AND WINIFRED )

CASTORO; JELKS H. CABANISS, )

JR. AND ANNE CABANISS; )

STANLEY GOLDMAN AND GLORIA )

GOLDMAN; FRANKLIN H. )

PFEIFFENBERGER; and KATY )

STENHOUSE, )

)

Petitioners, )

)

vs. ) Case Nos. 96-0736

) 96-5879

ROY PALMER and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

____________________________________)

RECOMMENDED ORDER

On June 11 through 13, 1997, and April 22, 1998, a formal

administrative hearing was held in this case in Sarasota,

Florida, before J. Lawrence Johnston, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioners: David M. Levin, Esquire

Icard, Merrill, Cullis, Timm,

Furen & Ginsburg

Post Office Box 4195

Sarasota, Florida 34237

Alexandra St. Paul, Esquire

The Riverview Center

1111 3rd Avenue, West Suite 350

Bradenton, Florida 34205

For Respondent Department of Environmental Protection

Thomas I. Mayton, Esquire

T. Andrew Zodrow, Esquire

Department of Environmental Prot ection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent Roy Palmer:

Richard Filson, Esquire

Filson and Penge, P.A.

2727 South Tamiami Trail, Suite 2

Sarasota, Florida 34239

STATEMENT OF THE ISSUES

The issues in these cases are whether the Respondent, Roy

Palmer, is entitled to a Noticed General Environmental Resource

Permit, under Florida Administrative Code Chapter 62-341, and a

Consent of Use under Florida Administrative Code Chapter 18-21.

PRELIMINARY STATEMENT

On or about February 13, 1995, the Respondent, Roy Palmer

(Palmer), applied for a wetland resource permit to construct a

395-foot boat dock for use at his single-family residence at

property he owned on Sarasota Bay. On September 1, 1995, the

Department of Environmental Protection (the Department or DEP)

gave notice of intent to issue a permit for a shorter (370 feet)

dock. The Petitioners filed a petition for administrative

hearing challenging the intended action. DEP referred the

petition to the Division of Administrative Hearings (DOAH), where

it was assigned DOAH Case No. 95-5311 and scheduled for final

hearing on April 30, 1996.

On October 3, 1995, new DEP rules went into effect regarding

environmental resource permits (ERPs). Florida Administrative

Code Chapter 62-341 of the new rules authorized the issuance of

"Noticed General Environmental Resource Permits" under certain

circumstances. On or about December 11, 1995, Palmer applied for

a noticed general ERP for a 370-foot dock under the new rules.

On or about January 10, 1996, DEP acknowledged receipt of

the noticed general ERP (No. 582819483) and informed Palmer that

it appeared to meet the requirements of the new rule. DEP also

gave notice of intent to grant Palmer's application for consent

of use of sovereign submerged lands necessary to construct the

dock. (The record is not clear when the application for consent

of use was filed.)

The Petitioners filed a petition for administrative hearing

challenging agency action regarding both the noticed general ERP

and the consent of use. DEP also referred this petition to DOAH,

where it was assigned DOAH Case No. 96-0736. On or about

February 8, 1996, Palmer moved to dismiss DOAH Case

No. 95-5311, and the April 30, 1996, final hearing date in DOAH

Case No. 95-5311 was used for scheduling the final hearing in

DOAH Case No. 96-0736.

On April 9, 1996, DEP filed a Motion to Strike the part of

the petition directed to Palmer's noticed general ERP. On

April 15, 1996, Palmer filed a Motion to Dismiss and/or Strike.

On April 17, 1996, a Joint Prehearing Statement and

Uncontested Motion to Continue was filed. Final hearing was

continued, and the other motions were heard by telephone on

June 3, 1996. On June 7, 1996, an Order Denying Motions to

Dismiss and Strike was entered. Final hearing was rescheduled

for November 7, 1996.

In July 1996, Palmer applied for a noticed general ERP to

build a still shorter (232-feet) dock (No. 292583). DEP took no

action on this application.

On September 23, 1996, Palmer filed a Motion to Dismiss the

Petition for Administrative Proceeding in DOAH Case No. 96-0736

because he had withdrawn the previous application for a noticed

general ERP for a 370-foot dock (No. 582819483) and was

proceeding on the second noticed general ERP (No. 292583) for the

232-foot dock. Palmer's motion did not make it clear that his

intent was to dismiss the part of his prior application regarding

the noticed general ERP, but not the consent of use application.

No party responded to the motion, and a Recommended Order of

Dismissal was entered in DOAH Case No. 96-0736 on October 16,

1996.

On October 28, 1996, the Petitioners filed a petition for

administrative hearing challenging the noticed general ERP

(No. 292583) for the 232-foot dock. DEP referred the October 28,

1996, petition to DOAH, where it was assigned DOAH Case

No. 96-5879. DEP also referred Palmer's Motion to Dismiss and/or

Strike and the Petitioners' Motion to Strike Palmer's motion. On

January 14, 1997, an Order Denying Motions was entered, and DOAH

Case No. 96-5879 was set for final hearing on May 1, 1997.

On March 31, 1997, the Petitioners filed a Motion for

Continuance to allow three days for the final hearing in DOAH

Case No. 96-5879. On April 15, 1997, an Order Continuing Final

Hearing was entered rescheduling final hearing for June 11

through 13, 1997.

On May 12, 1997, a Partial Fina l Order and Order of Partial

Remand of Proceedings to the Division of Administrative Hearings

was filed in DOAH Case No. 96-0736. It had been entered on

November 26, 1996, but through inadvertence was not filed at

DOAH, and DOAH was not made aware of its existence until May 12,

1997. Based on the exceptions filed, it clarified that only the

noticed general ERP in Application File No. 582819483 should have

been dismissed, and not the consent of use application.

A telephone hearing on remand was held on May 16, 1997, and

on May 21, 1997, DOAH Case No. 96-0736 was reopened for purposes

of resolving the intent to issue the consent of use and was

consolidated with DOAH Case No. 96-5879 for final hearing on

June 11 through 13, 1997.

On June 3, 1997, Palmer filed a Motion in Limine , and the

parties filed amendments to the Joint Prehearing Statement they

had filed on April 17, 1996.

At final hearing, the Petitioners dismissed allegations in

their petition that the noticed general ERP violated the City of

Sarasota Code; otherwise, Palmer's Motion in Limine was denied.

Palmer testified in his own behalf and called eight witnesses,

all of whom gave expert opinion testimony, including one DEP

witness. Palmer also had the following exhibits admitted in

evidence: 1; 2A-C; 5; 9; 13; 15; 16A-E; 22; 23B; 25; and

26A-B. DEP recalled its witness in its case-in-chief. Three of

the Petitioners testified, and the Petitioners called one expert

witness. The Petitioners also had the following exhibits

admitted in evidence: 1; 2; 5a-c; 7-9; 18; 24-25; 30-31; 33-35;

35A; 36A-C; 37-38; 40; 42-44; and 52-53.

During the course of the hearing, the Petitioners attempted

to raise an additional issue as to whether Palmer had the status

as a riparian owner required for a consent of use. Palmer

objected, and the objection was sustained. However, the

Petitioners were allowed to file a post-hearing motion and

written argument for leave to amend their petition to add this

issue, and the other parties were given an opportunity for a

written response.

The Motion to Amend Petition and Memorandum of Law in

Support were filed on June 20, 1997. DEP's written response

stated no objection to continuing final hearing for purposes of

the additional issue. Palmer filed a response and memorandum of

law in opposition that appeared to object most vigorously only if

Palmer would not be permitted to present additional evidence on

the issue. These positions were confirmed in a telephone hearing

on the Motion to Amend Petition held on July 3, 1997 , at which it

was made clear that Palmer would be permitted to present

additional evidence.

On August 4, 1997, an Order Granting Leave to Amend Petition

and Continuing Final Hearing was entered. It continued final

hearing until October 22, 1997, for purposes of the added

allegations. However, on October 22, 1997, Palmer filed an

unopposed Motion for Continuance. Another telephone hearing was

held, and a Second Order Continuing Final Hearing until

February 18, 1998, was entered.

On January 28, 1998, t he Petitioners filed a Motion to Abate

and/or Continue. It asserted, based on newly discovered

evidence, that a real property boundary would have to be

established in order to resolve the additional issue, and that

exclusive jurisdiction to do so was in the circuit court. Palmer

filed an objection, but DEP agreed with the Petitioners. A

telephone hearing was held on February 10, 1998.

On February 13, 1998, a Third Order Continuing Final Hearing

was entered. It denied the motion to abate but, without

objection, continued final hearing until April 22, 1998, based on

the late preparation and distribution of one of Palmer's

exhibits.

At the hearing on April 22, 1998, Palmer testified again and

called two expert witnesses on the additional issue. He also had

Palmer Exhibits A through N admitted in evidence. Petitioners'

Exhibit C also was admitted in evidence.

After presentation of all the evidence, the parties ordered

the preparation of a transcript of the final hearing and

requested 45 days from the filing of the transcript for filing

proposed recommended orders. The transcript of the April 22,

1998, hearing was filed on May 13, 1998; however, through

inadvertence, the parties omitted to file the transcript of the

hearing on June 11 through 13, 1997.

On June 12, 1998, Palmer's unopposed Motion for Extension of

Time was granted, and the time for filing proposed recommended

orders was extended until July 13, 1998. On July 9, 1998, a

Second Order Extending Time was entered granting the Department's

Unopposed Motion for Extension of Time for filing proposed

recommended orders until July 27, 1998. The transcript of the

hearing on June 11 through 13, 1997, was filed on August 24,

1998.

FINDINGS OF FACT

Procedural History

1. On or about February 13, 1995, the Respondent, Roy

Palmer (Palmer), applied for a wetland resource permit to

construct a 395-foot boat dock for use at his single-family

residence at property he owned on Sarasota Bay, an Outstanding

Florida Water. As proposed, this dock was to originate from the

northern part of Palmer's property and have a terminal platform

with two boat moorings and two boat lifts.

2. On September 1, 1995, the Department of Environmental

Protection (the Department or DEP) gave notice of intent to issue

a permit for a shorter (370-foot) dock originating from the

southern part of the Palmer property. The Petitioners filed a

petition for administrative hearing challenging the intended

action. DEP referred the petition to the Division of

Administrative Hearings (DOAH), where it was assigned DOAH Case

No. 95-5311.

3. On or about December 11, 1995, Palmer applied for a

noticed general environmental resource permit (ERP) permit for

his dock under new DEP rules went into effect on October 3, 1995.

This proposal was for the 370-foot dock originating from the

southern part of the Palmer property.

4. On or about January 10, 1996, DEP acknowledged receipt

of the noticed general ERP (No. 582819483) and informed Palmer

that it appeared to meet the requirements of the new rule. DEP

also gave notice of intent to grant Palmer's application for

consent of use of sovereign submerged lands necessary to

construct the dock. (The record is not clear when the

application for consent of use was filed.)

5. The Petitioners filed a petition for administrative

hearing challenging agency action regarding both the noticed

general ERP and the consent of use. DEP also referred this

petition to DOAH, where it was assigned DOAH Case

No. 96-0736. Palmer withdrew the original permit application and

moved to dismiss DOAH Case No. 95-5311.

6. In July, 1996, Palmer applied for a noticed general ERP

to build a still shorter (232-foot) dock originating from the

southern part of the Palmer property (Permit No. 292583).

Apparently, no notice of the application was published or

required to be published. It is not clear whether the

Petitioners "filed a written request for notification of any

pending applications affecting the particular area in which the

proposed activity is to occur."

7. Palmer's second noticed general ERP (No. 292583) was

amended on or about August 19, 1996, to eliminate one boat

mooring and one boat lift. DEP took no action on Palmer's second

application for a noticed general ERP No. 292583.

8. On September 23, 1996, Palmer filed a Motion to Dismiss

the Petition for Administrative Proceeding in DOAH Case

No. 96-0736 because he had withdrawn the previous application for

a noticed general ERP for a 370-foot dock (No. 582819483) and was

proceeding only on the second noticed general ERP (No. 292583)

for the 232foot dock. Palmer's intent was to dismiss only the

portion of his prior application regarding the noticed general

permit, but not the consent of use.

9. On October 28, 1996, the Petitioners filed a petition

for administrative hearing challenging noticed general ERP No.

292583 for the 232-foot dock. This petition alleged that the

Petitioners filed a written objection to noticed general ERP No.

on September 16, 1996, which requested a written response, and

that no response of any kind was received until the Petitioners

inquired and were told that DEP did not intend to respond to

either the noticed general ERP (No. 292583) or the Petitioners'

objection.

Proposed Dock at Issue

10. The proposal at issue is for a 227-foot access pier and

20 foot by 5 foot terminal platform with only one boat mooring

and one boat lift. The length, location, and design of Palmer's

proposed dock was changed in an attempt to satisfy the Department

of Environmental Protection (DEP or the Department) and Palmer's

neighbors. Palmer's task in this regard was difficult in part

because a longer dock with a terminus in deeper water could have

less impact on seagrasses (the major environmental concern) but

would have a greater impact on the neighbors' views of Sarasota

Bay (the major infringement of riparian rights concern.) In the

final version, Palmer tried to balance these conflicting

concerns.

11. As proposed, neither the terminal platform, boat lift,

nor mooring location occurs over submerged grassbeds, coral

communities or wetlands. Starting at the mean high water line,

the first 75 feet of the access pier for the proposed dock will

traverse essentially no sea grasses. In the next 75 feet to 150

feet of the access pier, there will be approximately 80%

vegetative cover consisting primarily of the seagrass halodule

wrightii . Between 150 feet and 200 feet, there will be

approximately 20% vegetative cover consisting of the seagrasses

halodule wrightii and thalassia testudinum . Between 200 feet and

232 feet, seagrasses consisted primarily of thalassia testudinum ,

except that the terminal platform is located in an area of

essentially bare sand.

12. Starting at 80 feet from the mean high water line, the

access pier for the proposed dock will ramp up to 5 feet above

mean high water for the next 20 linear feet and continue at that

elevation for the next 112 feet to reduce shading of the

seagrasses. Then it will descend stairs for the next 5 linear

feet, until it is 3.5 feet above mean high water, and will

continue at that elevation for 10 more feet to where it joins the

20 foot by 5 foot terminal platform. In this way, wherever it

traverses seagrasses, the access walkway portion of the pier will

be elevated 5 feet above mean high water. The access walkway

will be only 4 feet wide and will have half-inch wide gaps

between its deck boards to allow sunlight through and further

reduce shading of the seagrasses. The access walkway also will

have handrails that are maintained in such a manner as to prevent

use of the access walkways for boat mooring or access.

13. As proposed, the terminal platform and boat lift occurs

in a location with minimum depth of 2.2 feet below the mean low

water level. There is some water 1.7 feet deep in the vicinity

of the terminal platform, but the structure can be used without

traversing the shallow water. The structure is designed so that

boat mooring and navigational access will be in water at least

2 feet deep.

14. Including access pier and terminal platform, the total

area of Palmer's proposed dock over sovereign, submerged land

would be 1,008 square feet. There will be no wet bars or living

quarters over wetlands or surface waters or on the pier, and

there will be no structures enclosed by walls or doors. There

will be no fish cleaning facilities, boat repair facilities or

equipment, or fueling facilities on the proposed dock. No

overboard discharges of trash, human, or animal waste, or fuel

will occur from the dock.

15. The only dredging or filling associated with

construction of Palmer's proposed dock will be the minimum dredge

and fill required for installation of the actual pilings for the

pier, terminal platform, and boat lift. Altogether, less than 30

square feet of bay bottom will be disturbed during construction

and displaced to accommodate the pilings.

16. Palmer's noticed general ERP is subject to the general

conditions set out in Florida Administrative Code Rule 62-

341.427. Among those conditions is the requirement that Palmer

implement best management practices for erosion, turbidity, and

other pollution control to prevent violation of state water

quality standards. The pilings will be jetted, not driven, into

place to minimize disturbance of the bay bottom and temporary

increases in turbidity. Turbidity barriers will be installed and

maintained in a functional condition at each piling until

construction is completed and soils are stabilized and vegetation

has been established. Used properly, turbidity barriers have

proved effective in containing temporary turbidity from dock

construction.

17. Based on the expert testimony, it is found that the

construction of Palmer's proposed dock will not significantly

impact seagrasses.

18. The Petitioners presented expert testimony on

seagrasses, but their expert testified only generally based on

studies showing that shading negatively impacts seagrasses. He

had no prior knowledge of the Palmer dock design, seagrass

coverage, or the depth of the water. When apprised of some

information concerning Palmer's proposed dock, he admitted that

the studies involved far more severe shading conditions than

would be caused by the proposed dock. He could not testify that

the Palmer dock design would harm seagrasses, with the exception

of those actually removed by the installation of the pilings.

19. Accidental boat propeller dredging in using a dock can

be a secondary impact on seagrasses from dock construction. But

while a dock could perhaps attract a few boats, the dock's

presence also might cause boaters to steer clear of the dock or

reduce speed in the vicinity of the dock, which could result in a

net reduction in the risk of damage to seagrasses from accidental

prop dredging.

20. Petitioners Dr. Franklin Pfeiffenberger, James Castoro,

and Winifred Castoro jointly own a dock to the south of the

Palmer property. This dock, which was built in the 1930's,

projects 190 feet into Sarasota Bay and traverses seagrasses.

Unlike the proposed Palmer dock, the Pfeiffenberger dock is not

elevated, and it terminates in seagrasses. The seagrasses under

the Pfeiffenberger dock are the same types as those located in

the Palmer dock alignment--a combination of halodule wrightii and

thalassia testudinum . The dock has been rebuilt a number of

times over the years. Upon physical inspection, apparently

healthy and growing seagrasses were found underneath the

Pfeiffenberger dock.

21. The proposed dock will not harm wildlife, including

manatees (the only endangered species in the area, animal or

plant). Manatees use Sarasota Bay in general, but the east side

of the bay, where the Palmer property is located, is not a high

use area. It is shallow and would not be considered "select"

habitat for manatees. The proposed dock would not have any

detrimental effect on manatee travel patterns; they could easily

swim around the dock. Manatees eat seagrasses and other aquatic

vegetation, but the proposed dock will not have significant

adverse impact on those resources. Finally, while a dock could

perhaps attract a few boats, the dock's presence also might cause

boaters to steer clear of the dock or reduce speed in the

vicinity of the dock, which could result in a net reduction in

the risk of injury to manatees in the area from boat collisions

and prop scarring.

22. Except for temporary turbidity during construction, no

other water quality parameters will be violated as a result of

the construction of Palmer's proposed dock.

23. Palmer's proposed dock and its use will not

significantly impede navigability in Sarasota Bay. The bay is

approximately 18,000 feet wide at that point, and it is

approximately 4,800 feet from Palmer's property to the

Intracoastal Waterway. Since the water is shallow near shore in

the vicinity of the Palmer property, relatively few boats

frequent the area. Those that do are generally smaller boats.

These boats easily could navigate so as to avoid the dock; very

small boats, such as canoes and kayaks, might even be able to

carefully pass under the elevated portion of the dock.

24. Palmer's proposed dock also would not be a serious

impediment to other recreational uses of Sarasota Bay in the

area. The water is too shallow for swimming. Fishing could

improve because the dock could attract baitfish. People could

continue to wade-fish by walking around or even under the

proposed dock.

25. Palmer's proposed dock is aesthetically consistent with

the area in which it is located. All the Petitioners have some

sort of man-made structure projecting out into Sarasota Bay from

their property. As already mentioned, Dr. Pfeiffenberger and the

Castoros have a 190-foot dock projecting straight out into

Sarasota Bay. Within the past five years, Dr. Pfeiffenberger

has installed a bench to sit on at the end of the dock. To the

north of the Palmer property, property owned by Mr. and Mrs.

Cabaniss has a yacht basin formed by a sea wall that projects

roughly perpendicular to the shoreline out into the bay.

Immediately north of the Cabaniss property, there is a boat house

on the Goldman property where it abuts the yacht basin. The

Goldmans' boat house is approximately 20 feet in length and

10 feet in height from ground level. Immediately south of the

Palmer property, Ms. Stenhouse has a small dock (which appears to

be located over seagrasses.) As a result, the viewsheds of

Palmer and the Petitioners already contain many docks and man-

made structures. In addition, the Ringling Causeway and bridge

can be seen from all of these properties.

26. Palmer's proposed dock will appear in some views from

the Petitioners' properties. Generally, the closer the neighbor,

the more will be seen of Palmer's proposed dock. Some of the

Petitioners will only be able to see the proposed dock if they go

out to the westerly edge of their properties on the bay. While

the proposed dock will appear in and alter these views, it will

not eliminate any Petitioner's view of Sarasota Bay. Even the

closest neighbors will have some unobstructed views around the

proposed dock. It also will be possible to see over and under

the proposed dock, similar to the way in which many of the

Petitioners now enjoy their views. There are tall pine and palm

trees on the Cabaniss property between their house and their view

of the bay. Most of the other properties in the vicinity appear

to have similar viewsheds. Ms. Stenhouse has a large stand of

mangroves of the western edge of her property; they cover

approximately 60 percent of the panorama from her house, but they

are trimmed up so she can see through them.

27. While some people would prefer not to have the Palmer

dock there, other people might view the availability of single-

family residential docks to be an asset to the properties in the

neighborhood. Based on expert testimony, it cannot be found that

property values in the area would go down as a result of Palmer's

proposed dock.

28. Palmer's proposed dock does little if anything to

further the idealistic goals and objectives of the City of

Sarasota Comprehensive Plan and the Sarasota Bay Management Plan

to restore and expand seagrasses in Sarasota Bay in that the

proposed dock will eliminate some seagrasses. However, only

approximately 30 square feet of seagrasses will be lost.

Otherwise, the proposed dock is consistent with other goals and

objectives of the City of Sarasota Comprehensive Plan and the

Sarasota Bay Management Plan in that the dock has been aligned

and planned so as to minimize impacts on seagrasses while

balancing the neighbors' desire to minimize the impact on their

views of Sarasota Bay.

Palmer's Riparian Rights

29. Palmer and his wife received a Warranty Deed, dated

August 27, 1993, from James Kirk, II, individually and as

personal representative of the Estate of Marie Ferguson. The

deed describes Lots 27 and 28 of the Indian Beach subdivision in

Sarasota, Florida, with a western boundary "along the shores of

Sarasota Bay." Palmer attached this deed to his applications.

30. Since at least November 1992, the mean high water line

of Sarasota Bay has been west of a seawall on the Palmer

property. The evidence was clear that the seawall has been there

since at least 1944 and that Palmer has not filled the area to

the west of the seawall or built any structure that influences

its existence. The evidence was not clear as to the creation and

history of upland to the west of the seawall. From aerial

photographs, it appears that at least some upland has existed to

the west of the seawall at least from time to time for at least

the last 30 years.

31. For reasons no witness could explain, the Palmers also

received a Warranty Deed from Kirk, dated September 3, 1993,

purporting to convey title only up to the seawall on the Palmer

property. Likewise for reasons no witness could explain, a land

surveyor named Lawrence R. Weber prepared a boundary survey based

on the description in the September 3, 1993, Warranty Deed.

32. Also for reasons no witness could explain, the Palmers

received a Quit Claim Deed from Kirk, dated October 20, 1993.

This instrument quitclaimed to the Palmers "all of the Grantor's

property to the mean high water line of Sarasota Bay, including

riparian rights."

33. Except for the mysterious September 3, 1993, Warranty

Deed from Kirk, all deeds in the chain of title back to at least

1944 reflect an intention to convey riparian rights. A deed

given by Helen and Frederick Delaute to Cecilia and Harold

Wilkins, dated April 19, 1944, described the westerly boundary of

the property as running northerly along the shores of Sarasota

Bay and specifically referenced riparian rights. (This deed

attached a survey showing the still-existing seawall.) The next

deed in the chain of title was from the widowed Cecilia S.

Wilkins to Edward and Laura Williams dated December 27, 1954.

The metes and bounds description again referenced the westerly

boundary as running along the shores of Sarasota Bay and

specifically referenced foreshore accretions and riparian rights.

The next deed in the chain of title was from Edward and Laura

Williams to Aidan and Wilma E. Dewey dated June 30, 1958. This

deed again defined the westerly boundaries of the property as the

shores of Sarasota Bay and specifically referenced foreshore

accretions and riparian rights. The next deed in the chain of

title was from Aidan and Wilma Dewey to Edward and Marie Ferguson

dated August 23, 1967. This deed again defined the westerly

boundary of the property as the shores of Sarasota Bay and

specifically referenced foreshore accretions and riparian rights.

CONCLUSIONS OF LAW

34. DOAH Case No. 96-5879 involves Palmer's application for

a noticed general environmental resource permit (ERP) under

Florida Administrative Code Chapter 62-341. DOAH Case

No. 96-0736 involves Palmer's application for a consent of use of

sovereign submerged lands under Florida Administrative Code

Chapter 18-21.

DOAH Case No. 96-5879

35. Section 403.814(1), Florida Statutes (1997), authorizes

the Department to adopt rules for a program of general permits

specifying "design or performance criteria" for projects "which

have, either singly or cumulatively, a minimal adverse

environmental effect."

36. Florida Administrative Code Rule 62-341.201(1) provides

in pertinent part:

The purpose of Part II of this chapter is to

provide noticed general environmental

resource permits for those activities which

have been determined to have minimal impacts

to the water resources of the District, both

individually and cumulatively. Mitigation is

neither necessary nor required for activities

that qualify for noticed general permits.

Persons wishing to use one or more of the

general permits under this Part shall be

subject to the notice provisions of Section

62-343.090, F.A.C., before any activity is

conducted as authorized herein. The general

conditions provided pursuant to Section 62-

341.215, F.A.C., shall apply to all of the

noticed general permits in this Part. Strict

compliance with all of the terms, conditions,

requirements, limitations and restrictions

applicable to a desired noticed general

permit under this Part is required to qualify

for such a permit.

37. Florida Administrative Code Rule 62-341.427 establishes

a noticed general ERP for single-family piers.

A. Rights of Access to Proceedings under Section 120.57

38. Section 403.814, Florida Statutes (1997), provides in

pertinent part:

(1) . . . . Except as provided for in

subsection (3), any person complying with the

requirements of a general permit may use the

permit 30 days after giving notice to the

department without any agency action by the

department.

* * *

(3) The department may publish or by rule

require the applicant to publish, or the

applicant may elect to publish, in a

newspaper of general circulation in the area

affected, notice of application for a general

permit. If published, such public notice of

application shall be published within 14 days

after the applicant notifies the department;

and, within 21 days after publication of

notice, any person whose substantial

interests are affected may request a hearing

in accordance with ss. 120.569 and 120.57.

The failure to request a hearing within 21

days after publication of notice constitutes

a waiver of any right to a hearing under ss.

120.569 and 120.57. If notice is published,

no person shall begin work pursuant to a

general permit until after the time for

requesting a hearing has passed or until

after a hearing is held and a decision is

rendered.

39. Florida Administrative Code Rule 62-4.530 provides in

pertinent part:

(5) Unless otherwise required as part of a

specific category of general permit, persons

qualifying for the use of a general permit

are not required to, but may, publish in a

newspaper of general circulation in the area

affected by the proposed project a notice of

intent to use a general permit. The notice,

if published, shall follow substantially the

format in Rule 62-103.150, F.A.C., and shall

be published within 14 days of the date when

the department receives notification pursuant

to Rule 62-4.530(1), F.A.C. No person who

has published notice shall begin work until

after the 21 days for requesting a hearing

has passed or a hearing is held and a

decision is rendered.

* * *

(6) Any person complying with the

requirements of a general permit may use the

permit 30 days after giving notice to the

Department without any agency action. When

no agency action is taken, unless the

Department or the applicant publishes notice

of the application, the provisions of Chapter

120, Florida Statutes, granting to affected

parties the right to an administrative

hearing do not apply.

40. Prehearing, Palmer moved to dismiss DOAH Case

No. 96-5879 under Florida Administrative Code Rule 62-4.530(6)

because apparently no notice of Palmer's application for a

noticed general ERP (No. 292583) was published, and DEP took no

action on the application. Despite the denial of that motion,

Palmer continues to maintain that the Petitioners are not

entitled to Section 120.57 proceedings to challenge Palmer's

noticed general ERP. DEP does not join Palmer in taking that

position.

41. DEP (and its predecessor agency, the Department of

Environmental Regulation (DER)) previously interpreted

Rule 62-4.530(6) to authorize projects to be accomplished by

general permit without agency action and without a point of entry

for a third party to initiate an administrative challenge. The

rule and the agency interpretations of it were upheld in Hamilton

County v. Department of Environmental Regulation , 587 So. 2d

1378, 1385 (Fla. 1st DCA 1991), and in City of Bradenton v.

Amerifirst Development Corporation, 582 So. 2d 166 (Fla. 2nd DCA

1991). However, both the agency interpretations and the cases

upholding them preceded the enactment of Sections 373.403,

et seq. , Florida Statutes (1995), and the adoption of Florida

Administrative Code Chapter 62-341.

42. When the Legislature enacted Sections 373.403 et seq .,

Florida Statutes (1995), to replace most of Sections 403.91-

403.925 and 403.929, it also provided:

The department and the government boards, on

or before July 1, 1994, shall adopt rules to

incorporate the provisions of this section,

relying primarily on the existing rules of

the department and the water management

districts, into the rules governing the

management and storage of surface

waters. . . . Such rules may establish

exemptions and general permits, if such

exemptions and general permits do not allow

significant adverse impacts to occur

individually or cumulatively. . . . Until

rules adopted pursuant to this subsection

become effective, existing rules adopted

under this part and rules adopted pursuant to

the authority of ss. 403.91-403.929 shall be

deemed authorized under this part and shall

remain in full force and effect.

Section 373.414(9), Florida Statutes (1995).

43. On or about October 3, 1995, DEP adopted rules pursuant

to its authority under both Section 403.814(1) and Section

373.414(9), Florida Statutes (1995), including Florida

Administrative Code Rules: 62-341.201, setting out the policy

and purpose of the rules chapter; 62-341.215, setting out general

conditions for all noticed general permits; 62-341.427, a general

permit for certain piers and associated structures; and

62-343.090, setting out the process of notices and applications

for general permits.

44. Unlike Rule 62-4.530(6), Rule 62-343.090 does not

explicitly limit rights of access under Section 120.57. To the

contrary, Rule 62-343.090 suggests that it preserves rights of

access under Section 120.57. Subpart (2)(h) of the rule provides

that "notice of receipt of a complete or substantially complete

application shall be provided to any persons who have filed a

written request for notification of any pending applications

affecting the particular area in which the proposed activity is

to occur" and that DEP must provide notice of intended agency

action on to any "person [who] has requested notice of the

intended agency action for a specific application." In addition,

subpart (2)(k) of the rule provides that "the Department shall

require an applicant to publish . . . notice of receipt of the

application [and notice of intended agency action] for those

activities which, because of their size, potential effect on the

environment or the public, controversial nature, or location, are

reasonably expected by the Department to result in a heightened

public concern or likelihood of request for administrative

proceedings."

45. In this case, Palmer's second noticed general ERP

(No. 292583) was filed in July 1996. Apparently, no notice was

published or required to be published; it is not clear whether

the Petitioners "filed a written request for notification of any

pending applications affecting the particular area in which the

proposed activity is to occur." However, it is clear that

Palmer's second noticed general ERP (No. 292583) was amended on

or about August 19, 1996, and the Petitioners alleged that they

filed a written objection on September 16, 1996, which requested

a written response. It is concluded that, as such, the

Petitioners' objection amounted to a request for "notice of the

intended agency action for a specific application" under Florida

Administrative Code Rule 62-343.090(2)(h).

46. It is concluded that, under the circumstances of this

case, Rule 62-4.530(6) should be strictly construed and should

not be applied to limit rights of access to proceedings under

Section 120.57. Rather, it is concluded that Rule 62-343.090

governs this case and that it does not limit the Petitioners'

rights of access.

B. Palmer's Entitlement to Noticed General ERP

47. As noted, supra , Section 403.814(1), Florida Statutes

(1997), authorizes the Department to adopt rules for a program of

general permits specifying "design or performance criteria" for

projects "which have, either singly or cumulatively, a minimal

adverse environmental effect." Florida Administrative Code Rule

62-341.427 was adopted under the authority of that statute. See

also Florida Administrative Code Rule 62-341.201(1) (noticed

general permits are for "those activities which have been

determined to have minimal impacts to the water resources of the

District, both individually and cumulatively.")

48. Florida Administrative Code Rule 62-341.427 provides in

pertinent part:

(1) A general permit is hereby granted to

any person to construct, extend, or remove

piers and associated structures as described

below:

(a) single-family piers, along

with boat lifts, boat houses,

terminal platforms, and gazebos

attached to the pier, where these

structures:

1. do not accommodate

the mooring of more than

two water craft;

2. do not, together

with existing structures,

exceed a total area of

2,000 square feet; and

3. have a minimum

depth of two feet below

the mean low water level

for tidal waters . . .

for all areas designed

for boat mooring and

navigational access.

(2) This general permit shall be subject

to the following specific conditions:

(a) construction or extension of

the boat house, boat shelter, boat

lift, gazebo, or terminal

platforms, shall not occur over

submerged grassbeds, coral

communities or wetlands. In

addition, the boat mooring location

shall not be over submerged

grassbeds, coral communities or

wetlands. However, the access

walkway portion of the pier may

traverse these resources provided

it is elevated a minimum of five

feet above mean high water or

ordinary high water, contains

handrails that are maintained in

such a manner as to prevent use of

the access walkways for boat

mooring or access, and does not

exceed a width of six feet, or a

width of four feet in Aquatic

Preserves;

(b) there shall be no wet bars,

or living quarters over wetlands or

other surface waters or on the

pier, and no structure authorized

by this general permit shall be

enclosed by walls or doors;

(c) the structure and its use

shall not significantly impede

navigability in the water body;

(d) there shall be no dredging

or filling associated with

construction of the structures

authorized herein, other than that

required for installation of the

actual pilings for the pier, boat

lift, boat shelter, gazebo, or

terminal platform;

(e) there shall be no fish

cleaning facilities, boat repair

facilities or equipment, or fueling

facilities on the structures

authorized by this general permit.

In addition, no overboard

discharges of trash, human or

animal waste, or fuel shall occur

from any structures authorized by

this general permit; and

(f) this general permit shall

not authorize the construction of

more than one pier per parcel of

land or individual lot. For the

purposes of this general permit,

multi-family living complexes shall

be treated as one parcel of

property regardless of the legal

division of ownership or control of

the associated property.

49. Based on the Findings of Fact, it is concluded that

Palmer's application meets the requirements of Florida

Administrative Code Rule 62-341.427. Specifically, as to the

matters in genuine dispute, Palmer's proposed dock will "have a

minimum depth of two feet below the mean low water level . . .

for all areas designed for boat mooring and navigational access,"

and the noticed general ERP will have the necessary conditions,

including conditions that the dock's boat lift, terminal

platforms, and mooring location "shall not occur over submerged

grassbeds" and that "the structure and its use shall not

significantly impede navigability in" Sarasota Bay.

50. Florida Administrative Code Rule 62-341.215 provides in

pertinent part:

(3) This general permit does not eliminate

the necessity to obtain any required federal,

state, local and special district

authorizations prior to the start of any

construction, alteration, operation,

maintenance, removal or abandonment

authorized by this permit.

* * *

(5) The general permit does not relieve

the permittee from liability and penalties

when the permitted activity causes harm or

injury to: human health or welfare; animal,

plant or aquatic life; or property. It does

not allow the permittee to cause pollution in

contravention of Florida Statutes and

Department rules.

* * *

(12) Construction, alteration, operation,

maintenance, removal and abandonment approved

by this general permit shall be conducted in

a manner which does not cause violations of

state water quality standards, including any

antidegradation provisions of Sections

62-4.242(1)(a) and (b), 62-4.242(2) and (3),

and 62-302.300, F.A.C., and any special

standards for Outstanding Florida Waters and

Outstanding National Resource Waters. The

permittee shall implement best management

practices for erosion, turbidity, and other

pollution control to prevent violation of

state water quality standards. Temporary

erosion control measures such as sodding,

mulching, and seeding shall be implemented

and shall be maintained on all erodible

ground areas prior to and during

construction. Permanent erosion control

measures such as sodding and planting of

wetland species shall be completed within

seven days of any construction activity.

Turbidity barriers shall be installed and

maintained at all locations where the

possibility of transferring suspended solids

into wetlands and other surface waters exists

due to the permitted activity. Turbidity

barriers shall remain in place and shall be

maintained in a functional condition at all

locations until construction is completed and

soils are stabilized and vegetation has been

established. Thereafter the permittee shall

be responsible for the removal of the

barriers. The permittee shall correct any

erosion or shoaling that causes adverse

impacts to the water resources.

51. The Petitioners argue essentially that, notwithstanding

Rule 62-341.427, these portions of Rule 62-341.215 require Palmer

to give all of the reasonable assurances that would be required

for any standard ERP. Specifically, they argue that Palmer must

provide reasonable assurances based on plans, test results, or

other information that the proposed project: (1) will not

violate water quality standards; (2) is clearly in the public

interest; (3) satisfies anti-degradation permitting requirements,

in particular for Outstanding Florida Waters; and (4) meets all

applicable conditions pertaining to noticed general permits,

including the applicable provisions of Florida Administrative

Code Chapter 40D-4. Citing Save Ann Maria, Inc., v. Dept of

Transp. and Dept. of Environmental Protection , 700 So. 2d 113,

117 (Fla. 2d DCA 1997), the Petitioners argue that reasonable

assurances must include evidence of baseline water quality or

water quality in the year prior to Palmer's application.

52. It is concluded that the Petitioners' arguments must be

rejected. It is clear that the Legislature and the Department

intended to establish a program of noticed general permits for

the purpose of giving applicants for projects "which have, either

singly or cumulatively, a minimal adverse environmental effect"

relief from the more burdensome standard permitting requirements.

Section 403.814(1), Florida Statutes (1997). See also Florida

Administrative Code Rule 62-341.201(1) (noticed general permits

are for "those activities which have been determined to have

minimal impacts to the water resources of the District, both

individually and cumulatively.") It would make no sense to

interpret Florida Administrative Code Rule 62-341.215(2) in such

a way as to deny applications that do not meet standard

permitting. Properly interpreted, Florida Administrative Code

Rule 62-341.215(2) presumes the validity of the noticed general

ERP and speaks to the conduct of activities under the permit.

53. It is clear from Florida Administrative Code

Rule 62-302.300(18)(a) that the Outstanding Florida Waters public

interest test does not apply to noticed general permits. The

rule provides:

Except as provided in subparagraphs (b) and

(c) of this paragraph [which are inapplicable

to this case], an applicant for either a

general permit or renewal of an existing

permit for which no expansion of the

discharge is proposed is not required to show

that any degradation from the discharge is

necessary or desirable under federal

standards and under circumstances which are

clearly in the public interest.

DEP has consistently interpreted the rule as written. (It is

noted that, in contrast, Florida Administrative Code Rule 62-

341.437, establishing a noticed general permit for the

installation of fences, does not provide for such a permit in

Outstanding Florida Waters.)

DOAH Case No. 96-0736

54. Under Article X, Section 11, of the Florida

Constitution, sovereignty submerged lands are held by the State

in trust for the use and benefit of all the people of the State.

55. The Board of Trustees of the Internal Improvement Trust

Fund (the Board) has been authorized by the Legislature to

administer the State's sovereignty lands, and has been directed

to adopt rules and regulations governing the exercise of its

statutory duties. Section 253.03(7), Florida Statutes. The

rules adopted by the Board which govern the management of

sovereignty submerged lands are contained in Florida

Administrative Code Chapter 18-21.

56. Florida Administrative Code Rule 18-21.001 provides:

The intent and purpose of this rule is:

(1) To aid in fulfilling the trust and

fiduciary responsibilities of the Board of

Trustees of the Internal Improvement Trust

Fund for the administration, management and

disposition of sovereignty lands;

(2) To insure maximum benefit and use of

sovereignty lands for all the citizens of

Florida;

(3) To manage, protect, and enhance

sovereignty lands so that the public may

continue to enjoy traditional uses including,

but not limited to, navigation, fishing and

swimming;

(4) To manage and provide maximum

protection for all sovereignty lands,

especially those important to public drinking

water supply, shellfish harvesting, public

recreation, and fish and wildlife propagation

and management;

(5) To insure that all public and private

activities on sovereignty lands which

generate revenues or exclude traditional

public uses provide just compensation for

such privileges; and

(6) To aid in the implementation of the

State Lands Management Plan.

57. Florida Administrative Code Rule 18-21.004 provides in

pertinent part:

(1) All activities on sovereignty lands

shall require a lease, easement, consent of

use, use agreement or other form of approval.

The following shall be used to determine the

form of approval required:

(a) Consent of Use -- is required for the

following activities . . .:

1. A single dock or access channel which is

no more than the minimum length

and size necessary to provide reasonable

access to navigable water;

2. Docks, access channels, boat ramps, or

other activities which preempt no more than

1,000 square feet of sovereignty land area

for each 100 linear feet of shoreline in the

applicant's ownership (see 'preempted area'

definition Rule 18-21.003(36)[sic], Florida

Administrative Code). Proportional increases

in the 1,000 square foot threshold can be

added for fractional shoreline increments

over 100 linear feet . . ..

Florida Administrative Code Rule 18-21.003(38) defines "preempted

area" as follows:

"Preempted area" means the area of

sovereignty lands from which the traditional

public uses have been or would be excluded to

any extent by an activity. The area may

include, but is not limited to, the

sovereignty lands occupied by the docks and

other structures, the area between the docks

and out to any mooring pilings, and the area

between the docks and the shoreline. If the

activity is required to be moved waterward to

avoid dredging or disturbance of nearshore

habitat, a reasonable portion of the

nearshore area that is not impacted by

dredging or structures shall not be included

in the preempted area.

Under these rules, a consent of use is the appropriate form of

approval for Palmer's dock.

A. Palmer's Riparian Rights .

58. Florida Administrative Code Rule 18-21.004(3)(b)

provides:

Applications for activities on sovereignty

lands riparian to uplands can only be made by

and approved for the upland riparian owner,

their legally authorized agent, or persons

with sufficient title interest in uplands for

the intended purpose.

59. Florida Administrative Code Rule 18-21.007(1) requires

in pertinent part:

Applications for consent of use shall include

the following:

* * *

(c) Satisfactory evidence of title in

subject riparian upland property or

demonstration of sufficient title interest in

uplands for the intended purpose . . ..

Florida Administrative Code Rule 18-21.003(49) defines

"satisfactory evidence of title" as follows:

"Satisfactory evidence of title" means a

warranty deed or a current title insurance

policy issued by a title insurance company

authorized to do business in the State of

Florida, or an opinion of title prepared by a

member of the Florida Bar, covering title to

lands involved and indicating, at least, such

minimum interest in the applicant which may

entitle the applicant to the relief sought,

or such affidavits as may be required by the

department to establish the currency of title

status of an applicant.

60. Utilizing the first option under Rule 18-21.003(49),

Palmer included in his application for consent of use a warranty

deed purporting to convey to him and his wife ownership of the

upland riparian rights necessary for Palmer to obtain a consent

of use under Florida Administrative Code Chapter 18-21. The

Petitioners were allowed to add as an issue in this case whether

this warranty deed was sufficient; subsequently, they contended

that proof of Palmer's upland riparian rights would require

establishment of the boundary between Palmer's property and

state-owned lands and that the circuit court has exclusive

jurisdiction to establish such a boundary.

61. Section 26.012(2)(g), Florida Statutes (1997), provides

in pertinent part that the circuit courts of the state "shall

have exclusive original jurisdiction . . . in all actions

involving the title and boundaries of real property." Where, in

a consent of use application case, the owners of adjoining

private property dispute the boundary between their respective

riparian rights, DEP has deferred to the circuit court. See

Final Order, Hageman v. Dept. of Environmental Protection , DOAH

Case No. 94-6794 etc., 17 F.A.L.R. 3684 (DEP 1995). Cf. also

Buckley v. Dept. of Health and Rehab. Services , 516 So. 2d 1008,

1009 (Fla. 1st DCA 1988).

62. It is concluded that this case is distinguishable from

the Hageman case. In this case, there is no dispute as to the

boundary between Palmer's property and any other privately-owned

property. Instead, the Petitioners in this case assert that the

State of Florida owns a narrow strip of upland property between

the Palmer property and the mean high water line.

63. Notwithstanding the Petitioners' assertion, the State

of Florida has not claimed ownership of the property. To the

contrary, the DEP gave notice of its intention to grant Palmer

consent of use of the sovereign, submerged lands necessary for

Palmer's proposed dock; and, while not entirely consistent

throughout this proceeding, DEP ultimately took the position in

its proposed recommended order that consent of use should be

granted. Given the requirements of Rule Chapter 18-21, DEP's

notice of intended action and proposed recommended order would

appear to be inconsistent with a claim to ownership of upland

property between the Palmer property and the mean high water

line.

64. It is concluded that, since DEP does not claim

ownership of any upland property between the Palmer property and

the mean high water line, this administrative proceeding on

Palmer's consent of use application is not the equivalent of an

"[action] involving the title and boundaries of real property."

As a result, DEP has jurisdiction to proceed on the Palmer's

consent of use application.

65. It also is concluded that Palmer's evidence was

sufficient to prove that he has the necessary riparian rights for

a consent of use under Florida Administrative Code Chapter 18-21.

The August 27, 1993, Warranty Deed from James Kirk conveyed

property "along the shores of Sarasota Bay." The evidence was

that this conveyed title to land to the mean high water line.

(The "shore" is the land lying between the high and mean low

water lines. See Axline v. Shaw , 17 So. 411 (Fla. 1895); Broward

v. Mabry , 50 So. 826 (Fla. 1909).) The September 3, 1993,

Warranty Deed from Kirk only purported to convey property to the

seawall, omitting a narrow strip between the seawall and the mean

high water line, but the second deed could not "un-deed" what

already had been conveyed by the August 27, 1993, Warranty Deed.

Even if it could, the October 20, 1993, Quit Claim Deed from Kirk

specifically quitclaimed "all of the Grantor's property to the

mean high water line of Sarasota Bay, including riparian rights."

66. The mysterious September 3, 1993, Warranty Deed,

together with the boundary survey based on it, appeared to

encourage the Petitioners to contend that Kirk never had title to

the narrow strip of upland property between the seawall and the

mean high water line. Regardless whether he did, it is clear

that the August 27, 1993, Warranty Deed met the requirements of

Rules 18-21.007(1)(c) and 18-21.003(49).

67. It also is concluded that, since neither the State nor

anyone else is claiming ownership of the narrow strip of upland

property between the seawall and the mean high water line, Palmer

has "sufficient title interest in uplands for the intended

purpose," within the meaning of Florida Administrative Code Rule

18-21.003(3)(b).

B. Other Consent of Use Criteria .

68. Florida Administrative Code Rule 18-21.004 also

provides in pertinent part:

The following management policies, standards,

and criteria shall be used in determining

whether to approve, approve with conditions

or modifications, or deny all requests for

activities on sovereign submerged lands.

(1) General Proprietary

(a) For approval, all activities on

sovereignty lands must be not contrary to the

public interest, except for sales which must

be in the public interest.

* * *

(2) Resource Management

(a) All sovereignty lands shall be

considered single use lands and shall be

managed primarily for the maintenance of

essentially natural conditions, propagation

of fish and wildlife, and traditional

recreational uses such as fishing, boating,

and swimming. Compatible secondary purposes

and uses which will not detract from or

interfere with the primary purpose may be

allowed.

(b) Activities which would result in

significant adverse impacts to sovereignty

lands and associated resources shall not be

approved unless there is no reasonable

alternative and adequate mitigation is

proposed.

* * *

(i) Activities on sovereignty lands shall

be designed to minimize or eliminate adverse

impacts on fish and wildlife habitat.

Special attention and consideration shall be

given to endangered and threatened species

habitat.

* * *

(3) Riparian Rights

(a) None of the provisions of this rule

shall be implemented in a manner that would

unreasonably infringe upon the traditional,

common law riparian rights of upland property

owners adjacent to sovereignty lands.

* * *

(c) All structures and other activities must

be within the riparian rights area of the

applicant and must be designed in a manner

that will not restrict or otherwise infringe

upon the riparian rights of adjacent upland

riparian owners.

(d) All structures and other activities

must be set back a minimum of 25 feet from

the applicant's riparian rights line. . . .

Florida Administrative Code Rule 18-21.003 defines "public

interest" and "riparian rights" as follows:

( 40) 'Public interest' means demonstrable

environmental, social, and economic benefits

which would accrue to the public at large as

a result of a proposed action, and which

would clearly exceed all demonstrable

environmental, social, and economic costs of

the proposed action. . . .

* * *

(47) 'Riparian rights' means those rights

incident to lands bordering upon navigable

waters, as recognized by the courts and

common law.

69. Under Rule 18-21.004(1)(a), it was not necessary for

Palmer to prove that granting his consent of use would be "in the

public interest"; he only had to prove that granting his consent

of use application is "not contrary to the public interest." It

is concluded that Palmer's evidence was sufficient proof. The

evidence did not prove that there would be "demonstrable

environmental, social, and economic benefits which would accrue

to the public at large as a result of a proposed action . . .

which would clearly exceed all demonstrable environmental,

social, and economic costs of the proposed action." But the

evidence was that there are few if any "demonstrable

environmental, social, and economic costs of the proposed

action."

70. As for Rule 18-21.004(2)(a), it is concluded that

Palmer's evidence was sufficient to prove that his proposed dock

"will not detract from or interfere with" "maintenance of

essentially natural conditions, propagation of fish and wildlife,

and traditional recreational uses such as fishing, boating, and

swimming." The proposed dock will be for allowable "compatible

secondary purposes and uses."

71. Under Rule 18-21.004(2)(b), Palmer's evidence was

sufficient to prove that the activities for which he seeks

consent of use would not result in significant adverse impacts to

sovereignty lands and associated resources. Any adverse impacts

would be relatively minor.

72. Under Rule 18-21.004(2)(i), Palmer's evidence was

sufficient to prove that his proposed dock is "designed to

minimize or eliminate adverse impacts on fish and wildlife

habitat," giving due attention and consideration to endangered

and threatened species habitat. Palmer's proposed dock will more

than meet the requirements for a noticed general ERP under

Florida Administrative Code Rule 62-341.427--there will only be

one boat lift and slip. The design will minimize impact on

seagrasses, and any manatees in the area, which is not preferred

by them, could swim around or, depending on the size and location

of the animal, perhaps even under the structure.

73. As for Rule 18-21.004(3), the evidence was sufficient

to prove that Palmer's proposed dock will be "within the riparian

rights area of the applicant" (Conclusions 58 through 67, supra )

and "designed in a manner that will not restrict or otherwise

infringe upon the riparian rights of adjacent upland riparian

owners." The proposed dock meets the setback requirements of

Rule 18-21.004(3)(d) and the length requirements for a consent of

use for a dock under Rule 18-21.005(1)(a). Although the proposed

dock will have some impact on the neighbors' views and their use

of Sarasota Bay, there will be no impact on their access to

navigable waters and no unreasonable impact on their views or use

of Sarasota Bay.

74. This case is clearly distinguishable from Lee County v.

Kiesel , 705 So. 2 d 1013 (Fla. 2d DCA 1998). In that case, as a

result of the angle at which Lee County constructed a bridge

across the Caloosahatchee River, the bridge crossed the front

(river side) of the Kiesel property, obstructing eighty percent

of the view to the channel. This was held to substantially and

materially interfere with and disturb the Kiesels' riparian right

of view across the waters and constitute actual physical

intrusion to appurtenant right of property ownership, even though

bridge did not rest on their property. The evidence was that the

impairment of the view reduced the value of the Kiesel property

by more than half and was held to support the property owners'

claim to inverse condemnation.

75. It is concluded that, in contrast to the infringement

of the Caloosahatchee bridge on the Kiesels, Palmer's proposed

dock will not "unreasonably infringe upon the traditional, common

law riparian rights of upland property owners adjacent to

sovereignty lands."

RECOMMENDATION

Based upon the foregoing Fi ndings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order issuing Noticed General Environmental

Resource Permit (No. 292583) and Consent of Use (No. 582819483)

to Roy Palmer.

DONE AND ENTERED this 1st day of September, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of September, 1998.

COPIES FURNISHED:

Richard Filson, Esquire

Filson and Penge, P.A.

2727 South Tamiami Trail, Suite 2

Sarasota, Florida 34239

Thomas I. Mayton, Esquire

T. Andrew Zodrow, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

David M. Levin, Esquire

Icard, Merrill, Cullis, Timm,

Furen & Ginsburg

Post Office Box 4195

Sarasota, Florida 34237

Alexandra St. Paul, Esquire

The Riverview Center

1111 3rd Avenue, West Suite 350

Bradenton, Florida 34205

Kathy Carter, Agency Clerk

Department of Environmental Protection

Office of General Counsel

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

Office of General Counsel

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 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.