96-003708
Miami Beach Rod And Reel Club vs.
Department Of Environmental Protection
Status: Closed
Recommended Order on Monday, March 31, 1997.
Recommended Order on Monday, March 31, 1997.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8MIAMI BEACH ROD AND )
13REEL CLUB, INC., )
17)
18Petitioner, )
20)
21vs. ) CASE NO. 96-3708
26)
27DEPARTMENT OF ENVIRONMENTAL )
31PROTECTION, )
33)
34Respondent. )
36)
37RECOMMENDED ORDER
39Pursuant to notice, the Division of Administrative Hearings,
47by its designated Administrative Law Judge, J. D. Parrish, held a
58video teleconference hearing in the above-styled case on December
679, 1996, with the parties appearing in Miami and Tallahassee.
77APPEARANCES
78For Petitioner: Stephen E. Tunstall, Esquire
84Stephen E. Tunstall, P.A.
882701 Southwest LeJeune Road, Suite 410
94Coral Gables, Florida 33134
98For Respondent: Jeffrey Brown
102Assistant General Counsel
105Department of Environmental Protection
1093900 Commonwealth Boulevard
112Tallahassee, Florida 32399-3000
115STATEMENT OF THE ISSUE
119Whether Petitioner is entitled to a consent to use sovereign
129submerged lands.
131PRELIMINARY STATEMENT
133This case began on July 1, 1996, when the Department of
144Environmental Protection (Department or DEP) gave notice of its
153intent to deny the consent to use sovereign submerged lands for
164the activity proposed by Petitioner. On or about October 20,
1741995, Petitioner, Miami Beach Rod and Reel Club, Inc. (MBRRC),
184applied for an environmental resource permit and requested
192authorization to use sovereign submerged lands in order to
201construct two finger piers and to install twelve mooring piles
211for its private yacht club.
216The Departments denial of the application cited provisions
224of Rules 18-18.006 and 18-21.004, Florida Administrative Code ,
232and alleged:
234(1) the construction of the activity is
241inconsistent with the management policies,
246standards and criteria of sections(s) 18-
25221.004 and 18.006, F.A.C. The applicant has
259not provided reasonable assurance that the
265activity will be not contrary to the public
273interest, will maintain essentially natural
279conditions, will not cause adverse impacts to
286fish and wildlife resources or public
292recreation or navigation, and will not
298interfere with the riparian rights of
304adjacent property owners. In addition, the
310project is inconsistent with the goals and
317objectives of the Conceptual State Lands
323Management Plan adopted by the Board of
330Trustees on March 17, 1981.
335(2) the construction of the activity is
342inconsistent with Section of [sic] 18-18.006,
348F.A.C., in that no further use, sale, lease
356or transfer of interest in sovereignty lands
363in the preserve shall be approved or
370consummated by the Board of Trustees, except
377upon a showing of extreme hardship on the
385part of the applicant and a determination by
393the Board of Trustees that such sale,
400transfer or lease is in the public interest.
408Thereafter, on July 17, 1996, the Petitioner timely filed a
418petition for administrative proceeding. Such petition contested
425the proposed denial and argued that leasing the sovereign
434submerged land will clearly [sic] it be in the public interest
445and the inability to lease the sovereign submerged land would
455constitute an extreme hardship for the Miami Beach Rod and Reel
466Club."
467The case was forwarded to the Division of Administrative
476Hearings for formal proceedings on August 8, 1996. By notice
486entered September 17, 1996, the case was scheduled for hearing.
496At the hearing Petitioner presented testimony from the
504following witnesses: Craig Grossenbacher, Susan Markley, Suzan
511Baker, Stephen Tunstall, Larry Leibowitz, and David Ettman.
519Petitioners exhibits numbered 1 through 4 have been admitted
528into evidence.
530Respondent offered testimony from Donald Keirn.
536Respondents exhibits numbered 2 and 4 were admitted into
545evidence.
546The transcript in this matter was filed on December 30,
5561996. Thereafter Petitioner requested leave to late-file a
564proposed recommended order. Such request has been granted.
572Petitioners proposed recommended order was filed on February 18,
5811997. All proposed orders have been considered in the
590preparation of this order.
594FINDINGS OF FACT
5971. MBRRC filed an application for an environmental resource
606permit and authorization to use sovereign submerged lands located
615in the Biscayne Bay Aquatic Preserve (BBAP). This application
624sought approval to construct two finger piers and to install
634twelve mooring pilings for the benefit of a private yacht club.
645The application was filed with the Department for review on
655October 20, 1995.
6582. The Petitioners property is located on Hibiscus Island,
667a man-made island within the BBAP, and is accessed by boat. The
679island is primarily used for residential purposes. Petitioners
687facility is the only commercial docking facility on the island.
6973. Petitioner owns approximately 140 feet along the
705waterfront with its property line extending 20 feet seaward of
715the upland property. It has an existing dock which is
725approximately 10 feet wide that runs the length of, and parallel
736to, the seawall along its waterfront.
7424. The proposed finger piers would extend waterward and
751perpendicular to the existing dock from its ends. This extension
761proposes to use approximately 16 feet into the sovereign
770submerged land at the ends and would also allow the installation
781of 12 mooring pilings between the piers. The ultimate purpose of
792the installation is to allow perpendicular docking.
7995. At all t imes material to this case the Department has
811considered the proposed construction to be a new facility subject
821to the requirements of Section 258.397(3)(a), Florida Statutes ,
829and Rule 18-18.006(3), Florida Administrative Code . No existing
838structures at the site would qualify the applicant for the type
849of lease proposed .
8536. The Petitioner annually hosts numerous fishing and
861social events at its club facility. Participants typically
869raft vessels together in order to gain access to the shore.
880Historically this process has moored vessels parallel to the
889existing dock/seawall. This rafting would not necessarily be
897eliminated by the addition of the proposed finger piers.
9067. Petitioner seeks to expand the docking facility as
915requested in order to provide better ingress and egress to its
926property. It contends that fishing and boating in the BBAP will
937be enhanced by such improvements.
9428. Petitioner maintains its property is being treated
950differently than others; however, policies used by the
958Department in this instance are applicable to all areas of the
969BBAP.
9709. By letter dated February 6, 1996, the Department advised
980the Petitioner that staff would recommend denial of the
989application. That letter advised Petitioner of the extreme
997hardship test found in Rule 18-18.006(3), Florida Administrative
1005Code as well as Section 258.397(3)(a), Florida Statutes . The
1015letter noted that this standard was at best very difficult to
1026demonstrate and advised Petitioner of the public interest
1034requirement also set forth by rule and statute.
104210. Self-imposed circumstances as used in the applicable
1050rule has been construed to include circumstances where the
1059applicant seeks to improve existing boat access, to increase the
1069number of docking slips, and to enhance the upland property.
107911. The Board of Trustees of the Internal Improvement Trust
1089Fund (Board of Trustees) has determined that the construction of
1099single-family docks meets the extreme hardship test because
1107single-family docks are considered to be the lowest impact use
1117available on sovereign submerged land. It is deemed appropriate
1126to allow a qualified right of ingress and egress to the upland
1138owner.
113912. The Petitioners proposal is not a public project or a
1150public necessity. Petitioner currently has ingress and egress to
1159its upland property.
116213. The Petitioners property is a nonconforming use in a
1172residential area.
117414. The term property owners in the area has been
1184construed to mean the BBAP.
118915. The proposed project is not unique to the applicant,
1199and the burden to the applicant is shared by other property
1210owners in the BBAP. The proposed project would provide
1219additional access to an upland property owner who already has
1229boat access to the waterway. Neither the project site nor the
1240island on which it is located are unique as other properties of a
1253similar nature are within the BBAP.
125916. In order to establish that a proposed project is in
1270the public interest, applicants are required to demonstrate that
1280the activity would improve either public recreation, water
1288quality, fish hatcheries, or other matters of public interest.
129717. In this instance, Petitioner did not submit a written
1307proposal to support the public interest requirement during the
1316application process. Consequently, DEP has not assessed such
1324proposal for its quantity or quality.
133018. Petitioner relies on its improved boating access to
1339support a claim of enhancement to public recreation.
134719. As to water quality, fish hatcheries, or other matters
1357of public interest, the proposed project would adversely affect
1366seagrasses and other environmental resources by shading.
137320. Although the installation of mooring pilings would
1381provide some environmental benefit, those benefits would not be
1390quantifiable and would be offset by increased shading from the
1400project.
140121. Other proposals submitted by Petitioner incidental to
1409its Dade County permit application are insufficient in detail and
1419scope to show the public interest requirement would be met.
142922. The proposed project is located in an area that is
1440intermediate between the most sensitive and least sensitive
1448sites, for the purpose of manatee protection. The proposed
1457project would have an adverse environmental impact on manatee
1466protection since it creates additional docking slips and
1474additional boat traffic.
147723. The proposed project would result in environmental
1485costs through the loss of resources and increased turbidity.
149424. The proposed project would provide no quantifiable
1502economic benefit to the public, but would provide some economic
1512cost in the loss of habitat and food source for fisheries.
152325. The proposed project would provide no social benefits
1532different from those presently provided by the existing facility.
154126. The benefit of the proposed project is merely
1550enhancement of the Petitioners current use at a cost of lost
1561fisheries, increased danger to manatees, and increased turbidity.
1569CONCLUSIONS OF LAW
157227. The Department is delegated the responsibility of
1580enforcing the rules of the Board of Trustees for the purpose of
1592proprietary authorizations on sovereign submerged lands in
1599conjunction with applications for environmental resource permits.
1606See Rule 18-21.0051, Florida Administrative Code .
161328. As an applicant for authorization to use sovereign
1622lands, the Petitioner bears the ultimate burden of persuasion to
1632establish its entitlement throughout all proceedings, of whatever
1640nature, until such time as the Department takes final agency
1650action. Cordes v. Department of Environmental Regulation , 582
1658So. 2d 652, 654 (Fla. 1st DCA 1991) (citing Department of
1669Transportation v. J.W.C. Co. , 396 So. 2d 778, 787 (Fla. 1st DCA
16811981)).
168229. Petitioners proposed project requires a lease of
1690sovereign submerged lands which must be approved as set forth in
1701Rule 18-18.006, Florida Administrative Code .
170730. Because the proposed project is located within the
1716BBAP, it can not be approved except upon a showing of extreme
1728hardship on the part of the applicant and a determination . . .
1741that such sale, transfer or lease is in the public interest.
1752Section 258.397(3)(a), Florida Statutes (1995).
175731. Criteria for projects within the BBAP are different
1766from those for other projects located on other sovereign
1775submerged lands, particularly with respect to the extreme
1783hardship provision. Rule 18-18.006(3), Florida Administrative
1789Code , provides in pertinent part:
1794(b) There shall be no further use, sale,
1802lease, or transfer of interests in
1808sovereignty submerged lands unless an
1813applicant affirmatively demonstrates
1816sufficient facts to support a finding by the
1824board that :
1827(i) An extreme hardship exists for the
1834applicant at the time the application is
1841filed; and
1843(ii) The use, sale, lease, or transfer of
1851interest and the project planned in
1857conjunction with the use, sale, lease, or
1864transfer of interest is in the public
1871interest ; and
1873(iii) The project planned in conjunction
1879with the use, sale, lease, or transfer of
1887interest is consistent with these rules and
1894management plans when developed for the
1900preserve; [emphasis added.]
1903This project, like projects located within other aquatic
1911preserves requires an affirmative showing of public interest.
1919Rule 18-18.006(3), Florida Administrative Code . The extreme
1927hardship requirement is not generally required for projects in
1936other aquatic preserves, but is imposed by statute for the BBAP
1947in particular. See Section 258.397(3)(a), Florida Statutes
1954(1995).
195532. Under rules governing the BBAP, the applicant must
1964affirmatively demonstrate that an extreme hardship exists for the
1973applicant at the time the application is filed and the project is
1985in the public interest.
198933. Rule 18-18.004(11), Florida Administrative Code defines
1996extreme hardship as:
1999a significant burden, unique to the applicant
2006and not shared by property owners in the
2014area. Self-imposed circumstances caused to
2019any degree by actions of any person
2026subsequent to the enactment of the [Biscayne
2033Bay Aquatic Preserve] Act shall not be
2040considered as an extreme hardship. Extreme
2046hardship under this act shall not be
2053construed to include any hardship which
2059arises in whole or in part from the effect of
2069other federal, state or local laws,
2075ordinances, rules, or regulations. The term
2081may be inherent in public projects which are
2089shown to be a public necessity.
209534. Section 258.397(5), Florida Statutes provides for
2102reasonable improvement for ingress and egress. In this instance
2111Petitioner already enjoys ingress and egress to its property.
2120Its desire to improve that access is not unique. Petitioner has
2131not demonstrated a significant burden unique to the applicant and
2141not shared by other property owners in the BBAP.
215035. Rule 18-18.004(20), Florida Administrative Code defines
2157public interest as:
2160. . . environmental, social, and economic
2167benefits which would accrue to the public at
2175large as a result of a proposed action, and
2184which would clearly exceed all demonstrable
2190environmental, social and economic costs of
2196the proposed action. In determining the
2202public interest in a request for use, sale,
2210lease, or transfer of interest in sovereignty
2217lands or severance of materials from
2223sovereignty lands, the board shall consider
2229the ultimate project and purpose to be served
2237by said use, sale, lease, or transfer or
2245severance of materials. (Emphasis added)
225036. The Petitioner has presented no evidence of
2258demonstrable environmental benefits that would accrue to the
2266public at large as a result of the project.
227537. Moreover, Petitioner has not sustained its burden of
2284proving any demonstrable environmental, social or economic
2291benefits which would accrue to the public at large that would
2302clearly exceed all environmental, social, and economic costs of
2311the proposed project.
2314RECOMMENDATION
2315Based on the foregoing,
2319RECOMMENDED:
2320That the Department of Environmental Protection enter a
2328final order denying Petitioners request for authorization to
2336lease sovereign submerged land.
2340DONE AND ORDERED in Tallahassee, Leon County, Florida, this
234931st day of March 1997.
2354___________________________________
2355J. D. PARRISH
2358Administrative Law Judge
2361Division of Administrative Hearings
2365The DeSoto Building
23681230 Apalachee Parkway
2371Tallahassee, Florida 32399-3060
2374(904) 488-9675 SUNCOM 278-9675
2378Fax Filing (904) 921-6847
2382Filed with the Clerk of the
2388Division of Administrative Hearings
2392this 31st day of March 1997.
2398COPIES FURNISHED:
2400Stephen E. Tunstall, Esquire
2404Stephen E. Tunstall, P.A.
24082701 Southwest LeJeune Road
2412Suite 410
2414Coral Gables, Florida 33134
2418Jeffrey Brown, Esquire
2421Department of Environmental
2424Protection
24253900 Commonwealth Boulevard
2428Tallahassee, Florida 32399-3000
2431Kathy Carter, Agency Clerk
2435Office of the General Counsel
2440Department of Environmental
2443Protection, Mail Stop 35
24473900 Commonwealth Boulevard
2450Tallahassee, Florida 32399-3000
2453Perry Odom
2455General Counsel
2457Department of Environmental
2460Protection
24613900 Commonwealth Boulevard
2464Tallahassee, Florida 32399-3000
2467NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2473All parties have the right to submit written exceptions within 15
2484days from the date of this recommended order. Any exceptions to
2495this recommended order should be filed with the agency that will
2506issue the final order in this case.
- Date
- Proceedings
- Date: 05/05/1997
- Proceedings: Final Order filed.
- Date: 02/18/1997
- Proceedings: Miami Beach Rod and Reel Club, Inc. Proposed Recommended Order filed.
- Date: 01/31/1997
- Proceedings: Letter to JDP from Jeffrey Brown (RE: withdrawal of objection to the request for extension of time) (filed via facsimile).
- Date: 01/31/1997
- Proceedings: DEP`s Objection to Ex Parte Request for Extension of Time filed.
- Date: 01/21/1997
- Proceedings: Letter to JDP from S. Tunstall Re: Requesting additional time to file proposed judgment filed.
- Date: 01/09/1997
- Proceedings: Department of Environmental Protection`s Proposed Recommended Order filed.
- Date: 12/30/1996
- Proceedings: Transcript of Video conference Proceedings w/exhibits filed.
- Date: 12/09/1996
- Proceedings: CASE STATUS: Hearing Held.
- Date: 12/06/1996
- Proceedings: Order sent out. (re: motion to compel discovery)
- Date: 12/06/1996
- Proceedings: Petitioner`s Response to Verbal Order (filed via facsimile).
- Date: 12/06/1996
- Proceedings: Video Tape (Damaged when received) filed.
- Date: 12/05/1996
- Proceedings: (Respondent) Motion to Compel Discovery or, in the Alternative, to Exclude Testimony filed.
- Date: 12/05/1996
- Proceedings: (Respondent) Notice of Filing Exhibits; Exhibits filed.
- Date: 10/18/1996
- Proceedings: (Respondent) Request for Production of Documents; Notice and Certificate of Service of Interrogatories filed.
- Date: 09/17/1996
- Proceedings: Notice of Hearing sent out. (Video Final Hearing set for 12/9/96; 9:30am; Miami & Tallahassee)
- Date: 08/21/1996
- Proceedings: Department of Environmental Protection`s Response to Initial Order filed.
- Date: 08/13/1996
- Proceedings: Initial Order issued.
- Date: 08/08/1996
- Proceedings: Request for Assignment of Hearing Officer and Notice of Preservation of Record; Agency Intent to Issue; Agency Action Letter; Petition for Administrative Proceeding filed.
Case Information
- Judge:
- J. D. PARRISH
- Date Filed:
- 08/08/1996
- Date Assignment:
- 08/13/1996
- Last Docket Entry:
- 05/05/1997
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- ADOPTED IN PART OR MODIFIED