98-005190 Patricia Ward vs. Secret Oaks Owners Association And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, January 27, 2000.

Summary: The Applicant was not entitled to consent of use of sovereign submerged land due to effects on neighbors riparian rights.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA WARD, )

)

Petitioner, )

)

vs. ) DOAH Case No. 98-5190

) OGC Case No. 98-2669

SECRET OAKS OWNERS' ASSOCIATION, )

INC. and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

___________________________________)

MARTIN AND LINDA PARLATO, )

)

Petitioners, )

)

vs. ) DOAH Case No. 98-5290

) OGC Case No. 95-1341

SECRET OAKS OWNERS' ASSOCIATION, )

INC. and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Notice was provided and on May 10 and 11, 1999, and July

21, 1999, a formal hearing was held in these cases in St.

Augustine, Florida. Authority for conducting the hearing is set

forth in Sections 120.569 and 120.57(1), Florida Statutes. The

hearing was held before Charles C. Adams, Administrative Law

Judge.

APPEARANCES

For Petitioner Patric ia Ward:

Patricia Ward, pro se

912 Fruit Cove Road

Jacksonville, Florida 32259

For Petitioners Martin and Linda Parlato:

Robert C. Downie, II, Esquire

Brown, Ward, VanLeuven & Salzman, P.A.

Post Office Box 2873

Orlando, Florida 32802-2873 1/

Bram D. E. Canter, Esquire

1358 Thomaswood Drive

Tallahassee, Florida 32312 2/

For Respondent Secret Oaks Owners' Association, Inc.:

Ronald W. Brown, Esquire

Dobson & Brown, P.A.

66 Cuna Street

St. Augustine, Florida 32084

For Respondent Department of Environmental Protection:

Francine M. Ffolkes, Esquire

Suzanne B. Brantley, Esquire

Department of Environmental Protection

3900 Commonwealth Bouleva rd

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

Is Secret Oaks Owners' Association, Inc. (the Association)

entitled to the issuance of a wetland resource management permit

(environmental permit) from the Department of Environmental

Protection (DEP) and a consent of use of sovereign submerged

lands (consent of use) from the Board of Trustees of the

Internal Improvement Trust Fund (the Board) which would allow

the construction of a dock?

PRELIMINARY STATEMENT

On Jun e 7, 1995, under DEP File No. 552613202, a proposed

environmental permit was issued to the Association pursuant to

Chapters 373 and 403, Florida Statutes, Chapters 62-312 and 62-

4, Florida Administrative Code, and Water Quality Certification

pursuant to Section 401 of Public Law 92-500, for dock

construction.

Martin and Linda Parlato (the Parlatos) filed numerous

requests with DEP to extend the time for filing a petition for

administrative hearing in opposition to the intent to grant the

environmental permit. This culminated in a petition for formal

administrative hearing dated September 29, 1998, opposing the

issuance of that permit.

The Parlato petition for administrative hearing also

challenged the decision by the DEP Submerged Lands and

Environmental Resources Program, as staff of the Board to issue

consent of use allowing construction of the proposed dock. The

notice of consent of use was dated September 10, 1998. 3/

Patricia Ward (Ward) filed correspondence with DEP in

opposition to consent of use.

Both petitions under OGC Case No. 95-1341 and OGC Case

No. 98-2669 were forwarded by DEP to the Division of

Administrative Hearings (the Division) for the assignment of an

administrative law judge to conduct a formal hearing to resolve

material disputes of fact and related questions of law. The

Division case numbers 98-5290 and 98-5190 were assigned by the

Division in relation to the respective DEP case numbers.

Upon DEP's motion the cases were consolidated for hearing

and proposed disposition.

The Association's motion to dismiss the petition of the

Parlatos based upon alleged procedural inadequacies was denied.

The Parlatos' motion for summary final order and in the

alternative for reversal of preliminary agency action was

denied.

The decisions to consolidate the cases, deny the motion to

dismiss the petition and deny the motion for summary final

order, or in the alternative for reversal of preliminary agency

action were made in an order dated January 11, 1999.

Following two days of hearing o n May 10 and 11, 1999, MDP,

Inc. of Jacksonville (MDP), through its president Martin D.

Parlato, petitioned to intervene in the consolidated cases.

The petition to intervene by MDP was denied in an order dated

June 29, 1999.

In the course of the final hearing Parlato Exhibit No. 2,

the deposition of Phil Coram and Parlato Exhibit No. 13, and the

deposition of William Magill were admitted subject to rulings on

objections made during the deposition sessions. Those rulings

were announced in an order entered May 26, 1999.

During the hearing the Association presented the testimony

of Jeffrey Harbour and William Magill. The Association's

composite Exhibit A was admitted in evidence.

At hearing DEP presented the testimony of Jeremy Tyler and

Captain Donald Stratmann, Jr. DEP Exhibit Nos. 1-9 were

admitted.

The Parlatos testified on their own behalf and presented

the testimony of Leonard Nero, Jeremy A. Craft, and Jeremy

Tyler. At hearing Parlato Exhibits Nos. 1, 2, and 5 through 13,

were admitted. Parlato Exhibit No. 4 was denied admission.

Ruling was reserved on Parlato Exhibit No. 3, the deposition of

Jeffrey Kearns; Parlato Exhibit Nos. 14A through 14C, the tape

recordings of the first SSL TAC meeting on July 14, 1999; and

Parlato Exhibit Nos. 15A through 15B, the Board meeting of June

8, 1999. Upon consideration Parlato Exhibit No. 3 is admitted.

Parlato Exhibit Nos. 14A through 14C and 15A and 15B are denied

admission.

Ward testified in her own behalf and offered the testimony

of William Magill, Patrick F. McCormack, Otis D. Rackley,

Michael Gillean, Glennis Learn, Carolyn L. Newton, Joseph

Howard, and Rosemary Yeoman. Ward Exhibit No. 1 was denied

admission.

Upon request official recognition was given Chapters 18-21,

28-106, 62-330, and 62-343, Florida Administrative Code, and

Rule 62-4.110, Florida Administrative Code. Official

recognition was also given to the final order in DOAH Case No.

98-4281.

A hearing transcript was prepared and filed. The filing

date was August 31, 1999. Upon requests the time for submitting

proposed recommended orders was extended until October 15, 1999,

with a further extension through November 30, 1999, based upon

the substitution of the Parlatos' counsel. By these requests

the time for entry of the recommended order within thirty days

of the receipt of the transcript has been waived. See Rule 28-

106.216, Florida Administrative Code.

All parties submitted proposed recommended orders. They

have been considered in preparing this recommended order.

FINDINGS OF FACT

The Parties

1. DEP is charged with the regulation of dredge or fill

activities, in, on, or over the surface waters and wetlands in

the state of Florida as contemplated by Chapters 373 and 403,

Florida Statutes, and rules promulgated in accordance with those

statutes. In this capacity, DEP conducts regulatory review of

applications for environmental permits which would allow the

conduct of those activities in the regulated areas. DEP also

has the responsibility as delegated staff of the Board to take

final agency action on requests for proprietary authorization,

in this instance, consent of use of sovereign submerged lands.

Here, any proprietary authorization would be in accordance with

Chapter 253, Florida Statutes, and associated rules.

2. The review process undertaken by DEP for the

environmental permit and consent of use is concurrent. See

Section 373.427, Florida Statutes.

3. The Association sought an environmental permit and

consent of use in the interest of 15 lot owners in the Secret

Oaks subdivision located on Fruit Cove Road and Secret Oaks

Place in St. Johns County, Florida, to construct a dock. The

Association which represents the interest of the lot owners is a

Florida not-for-profit corporation whose current president is

William Magill.

4. The Parlatos own and reside at Lot 10 within the Secret

Oaks subdivision. They do not desire to participate with the

other 15 lot owners in requesting permission form DEP to build

the proposed dock. The Parlatos oppose the project and have

expressed that opposition through their petition.

5. Before the Parlatos purchased Lot 10, George W. Law,

the developer of Secret Oaks subdivision, prepared, and had

recorded with the Clerk of Circuit Court in St. Johns County,

Florida, a Declaration, Grant of Easements, Assessments for

Secret Oaks Subdivision (the Declaration). In pertinent part

that document stated:

1. The Developer hereby grants to the

present and future owners of all the lots in

said subdivision . . . and to their guests

and lessees and other persons authorized by

any such owner, a non-exclusive, perpetual,

and releasable easement on, over, along, and

across those portions of Lot(s) 10 . . . of

said subdivision which are subject to the

20' drainage easement as shown on said plat

and running from Secret Oaks Place

westwardly to the St. Johns River for the

purpose of pedestrian access to and from the

lots in said subdivision and said other

parcel and the St. Johns River and any dock

now or hereafter located thereon and for the

use and enjoyment of any such dock and any

other improvements now or hereafter

constructed within said easement by the

Developer or by the owners, as hereinafter

authorized. The provisions of this

paragraph shall not be deemed to be or imply

any dedication of said easement or of said

dock, if any, or of any other improvements

to any person not designated herein or to

St. Johns County or to the public.

6. Given that the Declaration of the easement in favor of

the present and future owners of the lots in the subdivision,

and other related persons, was subject to the preexisting 20-

foot drainage easement in behalf of St. Johns County, the

easement for those lot owners and other persons was deemed non-

exclusive. The drainage easement for the benefit of St. Johns

County had been previously recorded by the developer as part of

a plat in the public records of St. Johns County, Florida. The

nature of the drainage easement held by St. Johns County at Lot

10 is for an outfall structure involving a 24-inch diameter

culvert at the edge of the river designed to convey stormwater

from the uplands into the river.

7. The basis of the Association's request for an

environmental permit to construct a dock and for consent of use

to place that dock over sovereign submerged lands is premised

upon the easement fronting the St. Johns River granted the lot

owners in the Declaration and the subsequent Secret Oaks

Subdivision Owners' Agreement (the Agreement). The Agreement

was also recorded with the clerk of the Circuit Court in St.

Johns County, Florida. The latter document reiterated the

existence of the easement in favor of the lot owners and defined

its terms. It, like the Declaration, was recorded before the

Parlatos closed their purchase of Lot 10. The agreement at

Article V., RULES CONCERNING USE OF THE DOCK stated in pertinent

part:

Nothing in the making of this contract shall

be construed to expand the easement area

described in the Declaration or to otherwise

grant, or to otherwise authorize unlicensed

or unauthorized trespasses upon Lot(s) 10.

The easement is clarified so that it is

understood that it is over, under, in and

through the Dock as well as the portions of

Lot(s) 10 ---------------described in the

Declaration.

8. The reference to an existing dock pertained to a dock

extending from the shore, at Lot 10, at a place unassociated

with the easement. However, the easement was connected to the

main dock by an "L" shaped auxiliary dock beginning at the shore

of the easement roughly parallel to the main dock and then at a

right angle connecting to the main dock in the water. The

developer, Mr. Law, had constructed the main dock and auxiliary

dock before preparing and having recorded the Declaration. He

never arranged for appropriate regulatory permission or consent

for lot owners and other affiliated persons to use the main dock

and auxiliary dock.

9. The Parlotos were aware of the rights of other lot

owners under the Declaration and Agreement before purchasing Lot

10.

10. Before the present application was made, the

preexisting "L" shaped auxiliary dock connecting the easement to

the dock still in existence (the main dock) at Lot 10, had been

removed by the Parlatos, depriving other lot owners of access to

the main dock from the shore.

11. Ward lives at 912 Fruit Cove Road, in Jacksonville,

Florida, immediately adjacent to and south of the Parlatos'

property.

The Application

12. On November 28, 1994, DEP received the Association's

Joint Application for Works in the Waters of Florida. By this

application the Association sought to construct a dock extending

from the middle of the easement on Lot 10, commencing at the

shoreline at Lot 10, extending 562 feet into the St. Johns

River, a Class III waterbody. The total square footage of the

proposed dock over waters of the state contemplated by the

application was 3,234 square feet. The proposed dock was

constituted of an access pier 5 feet by 520 feet, a terminal

platform at the end of the access pier 10 feet by 16 feet, and a

proposed covered boat slip 16 feet by 28 feet waterward from the

terminal platform with an associated proposed catwalk 3 feet by

26 feet at the boat slip. See DEP Exhibit No. 2.

13. Another dock extended from Lot 10 whose length was

approximately 510 feet. This is the dock constructed by the

developer, Mr. Law. It was located outside the easement,

adjacent to the lot owned by the Parlatos. A second dock

existed on the property south of the proposed dock approximately

550 feet in length. The dock to the south of Lot 10 described

in the Association's 1994 application and referred to here

belongs to Ward. The existing dock immediately south of the

proposed dock was 90 feet away from the existing dock on Lot 10

at the closest point.

14. The existing dock extending from Lot 10 is the dock

that was "now" located described in the Declaration, Grant of

Easements, Assessments for Secret Oaks Subdivision previously

discussed.

15. More recently, on March 3, 1999, pursuant to the

application of the Parlato's in DEP File No. 55-136932-001-ES,

DEP issued the Parlatos an environmental permit and consent to

use sovereign submerged lands in relation to the existing dock

extending from Lot 10. The Parlatos were granted permit number

55-136932-001-ES based upon the entry of a final order by DEP in

Secret Oaks Owners' Association, Inc., Petitioner vs. Martin D.

and Linda K. Parlato and State of Florida, Department of

Environmental Protection, Respondents , DOAH Case No. 98-4281/OGC

Case No. 98-1329. This allowed the Parlatos to reconfigure that

dock when compared to its appearance from that which existed

when the Association applied for its permit to construct its

proposed dock. The activities allowed by the Parlato permit and

consent of use are as follows:

This project is to remove an existing 4 foot

by 10 foot walkway platform, a 15 foot by 16

foot terminal platform, and a covered boat

shelter from a private use dock in the

St. Johns River, St. Johns County, and

construct a 5 foot wide, 38 foot long jogged

walkway addition, a 12 foot by 16.5 foot

uncovered waterward "L" platform, and a

covered two-slip boat shelter 40 feet in

width and 45 feet in length, including 3

foot wide perimeter catwalks.

This permit and consent of use did not address the right of

Association members to use the existing dock.

16. With these modifications the pre-existing dock from

Lot 10 would be located closer to the Association's proposed

dock.

17. In reference to the present application, DEP staff

recommended that the applicant consider potential impacts to

manatees through the imposition of DEP's standard manatee

construction conditions and that habitat resources such as

submerged aquatic vegetation be protected from impacts. To this

end the recommendation was made to construct the covered boat

slip and terminal platform beyond the limits of the grass beds

on the site. It was also recommended that the access pier be

constructed 5 feet above mean-high-water to minimize the shading

effect of the dock placement as that effect might influence the

health of the grass beds. Similarly, it was recommended that

adequate spacing be provided between the planks in the access

pier to afford that protection. Finally, it was recommended

that vessels not be allowed to tie up to the dock in the area

where the submerged vegetation was located.

18. In response to these concerns, the proposed dock would

be elevated 5 feet above mean-high-water. The access pier that

would be constructed over the grass bed is designed with

adequate spacing to allow the maximum light penetration

practicable. Signs would be placed on the access pier reminding

users of the presence of submerged grass beds, and the possible

presence of manatees in the vicinity of the dock. The terminal

platform and covered boat slips would be located waterward of

existing grass beds. See DEP Exhibit No. 5.

19. The placement of handrails on the access pier and the

terminal platform are also intended to discourage boaters from

tying up in those places where the handrails are found, because

it would be more difficult to exit the vessel onto the access

pier or terminal platform than would be the case without

handrails.

20. In addition to signs being placed noting that the

proposed access pier crosses submerged grass beds and the

anticipated presence of manatees in the vicinity of the dock, a

specific permit condition called for by DEP requires signage

notifying users of the dock that no docking or mooring of

watercraft is permitted along the access pier. The specific

conditions also call for the elevation of the pier at a 5-foot

distance above mean-high-water, as the dock design anticipates,

and the imposition of additional measures in the handrail design

to further discourage boaters from tying up and climbing over or

through the handrails onto the access pier.

21. Grass beds such as those at the site are used by

manatees as habitat. Manatees have been observed in the

vicinity of the area where the proposed dock would be

constructed.

22. Following the permit review, DEP determined to issue

the permit as noticed on June 7, 1995.

23. In March 1996, the Association offered an amended

application with a design drawing intended to change the

location of the landward extent of the access pier to avoid

interfering with the St. Johns County stormwater outfall. This

modification is insignificant. See DEP Exhibit No. 7.

24. The proposed dock is comparable in its length to other

docks along the shoreline of the St. Johns River, in the

vicinity of the project.

25. Should the proposed dock be cons tructed and used, no

long-term adverse impacts to the water quality in the St. Johns

River are anticipated.

26. Short-term impacts to the water quality are expected

and limited to problems with turbidity. However, the terms of

the proposed permit reasonably mitigates those effects. During

construction screens and curtains would be utilized to control

turbidity and erosion.

27. Some impacts on biological diversity can be expected

through the shading of portions of the submerged grass beds but

those impacts would be minimal given the design of the dock in

accordance with DEP's specific conditions to protect the grass

beds and their value as manatee habitat.

28. The proposed project is not contrary to the public

interest. The project will not have an adverse effect on the

public health, safety, or welfare. Nor will the project have an

adverse effect on the property of others within the context of

DEP's protection of the environment consistent with the

permitting process. Concerns expressed by the Parlato's about

their potential liability for personal injury claims arising

from the use of the proposed dock; the possible claims made

against the Parlato's for dock repair and maintenance associated

with the proposed dock; and the possible effects of the

construction of the proposed dock on the value of their upland

property are not within the ambit of DEP review when considering

an application for a wetland resource management permit.

29. No adverse effects are anticipated on navigation as

that term has been defined by DEP. To that end, the proposed

dock location in relation to navigation, in broad terms, does

not interfere with vessels in commerce and vessels used for

recreation. Moreover, the use of the proposed dock would not

interfere with those opportunities.

30. In addition to the permanent signs to be placed to

inform dock users that manatees might be present, the proposed

permit contemplates other protections while the dock is being

constructed.

31. Taking into account the protections incumbent upon the

Association that have been prescribed by DEP in its proposed

permit, there will be no adverse impact to manatees and their

habitat or fish and other wildlife and their habitat. Likewise,

there will be no adverse effects on fishing or recreational

values or on marine productivity in the vicinity of the proposed

dock.

Consent of Use

32. While the association was successful in its attempt to

gain proposed permit no. 552613202 to construct the dock in

question here, the Association met with resistance in its

related request to gain consent of use of sovereign submerged

lands.

33. On September 21, 1995, DEP denied the Association

consent of use of sovereign submerged lands for the reason that:

The proposal is inconsistent with Chapter

18-21.004(3)(b), Florida Administrative Code

(F.A.C.) which states:

'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.'

The reason sufficient title interest is

required is to ensure that the Board of

Trustees of the Internal Improvement Trust

Fund will be able to lien the upland

property to recover costs and fines

associated with violations of the consent

and/or removal of the structure. Past and

current Board of Trustees' policy has been

and is to consider an easement an

insufficient title interest to build a

structure on sovereign lands unless the

owner of the upland gives written consent

for such use of the property, including the

state's right to lien his uplands. In this

case, where the upland owner refuses,

consent must be denied by the Trustees.

34. On February 28, 1996, by way of clarification, DEP

wrote the Association and stated:

Riparian rights are held only by the title

holder or the holder of the lease of the

riparian uplands. See Section 253.141,

Florida Statutes. Thus, it is the

Department's position that a holder of a

mere easement does not have sufficient title

interest in the uplands to make application

for activities on sovereignty submerged

lands.

35. The Association challenged the DEP decision to deny

consent of use and requested a Section 120.57(1), Florida

Statutes, hearing. In that case, the Association, DEP, the

Parlato's, and St. Johns County were named parties. At the

commencement of the final hearing before the undersigned, it was

determined that material disputes of fact did not exist and the

case was returned to DEP for conduct of a hearing consistent

with Section 120.57(2), Florida Statutes. In that hearing, a

decision was reached based upon the interpretation of Rule 18-

21.004(3) (b), Florida Administrative Code.

36. In a decision by Percy W. Mallison, Jr., Hearing

Officer appointed by DEP, entered on October 21, 1996, in the

case of Secret Oaks Owners' Association, Petitioner v. State of

Florida, Department of Environmental Protection, Respondent, and

Martin and Linda Parlato, and St. Johns County, Intervenors , OGC

Case No. 95-2392, Hearing Officer Mallison denied the

Association's request for consent of use to use sovereign

submerged lands because the Association did not qualify under

the terms of Rule 18-21.004(3)(b), Florida Administrative Code,

to be granted consent.

37. The Association appealed the denial of its Request for

Consent of Use of Sovereign Submerged Land and on motion for

rehearing in Secret Oaks Owners' Ass'n, Inc. vs. Department of

Environmental Protection , 704 So. 2d 702 (Fla. 5th DCA 1998),

the court concluded that DEP's interpretation of Rule

18-21.004(3)(b), Florida Administrative Code, as excluding the

Association from applying for consent of use was clearly

erroneous and reversed and remanded the case for consideration

leading to the present proceedings.

38. Following the remand, after reviewing the

Association's Request for Consent of Use, on September 10, 1998,

DEP gave notice that it intended to grant consent. In that

notification it referred to the application calling for

construction of a community dock with one covered boat slip. As

a consequence, in the preliminary determination DEP concluded

that the facility had less than three or more wet slips and was

not subject to the provisions in Rule 18-21.004(4), Florida

Administrative Code, pertaining to ownership-oriented docking

facilities. Additionally, the Statement of Intent to Grant

Consent of Use referred to the expectations in Chapter 18-21,

Florida Administrative Code, wherein the applicant could extend

the dock to exceed the ratio of submerged land to shoreline in

order for the applicant to access reasonable water depths.

Given the water depths in the vicinity of the proposed dock, its

length and size comports with the minimum necessary to provide

reasonable access to navigable water, while allowing for

construction of a covered boat slip.

39. Notwithstanding the fact that the proposed dock could

be used by multiple families involved with the Association, DEP

perceived the Association as requesting consent of use

pertaining to a single-family-type dock. The guests and

invitees of those families would also have access to the dock.

DEP considered the application as a request of consent of use as

a residential dock based upon the design for one boat slip to

moor one boat.

40. Although all Association members can potentially use

the dock, at present there has been discussion of precluding

persons within the Association who have no interest in using the

dock. The Parlatos are not members of the Association based

upon their request to be excluded from membership.

41. The Association has yet to establish rules pertaining

to the use of the proposed dock.

42. Although rules pertaining to the use of the proposed

dock have not been determined, the Association anticipates

developing rules for the use of the proposed dock that are

similar to those that have been established in the Agreement.

Thus far, those rules in the Agreement have been related to the

hypothetical use of the existing dock extending from Lot 10.

43. Chapter 253, Florida Statutes, and Chapter 18-21,

Florida Administrative Code, contemplate that the Board and

through its delegation of authority, DEP, are expected to

fulfill the trust and fiduciary responsibilities in managing the

use of sovereign submerged lands for the public benefit. More

specifically, the Board has the authority pursuant to Section

253.04, Florida Statutes, to impose administrative fines in

relation to improper acts associated with the use of sovereign

submerged lands. To the extent that the Board needed to pursue

the remedy of imposition of an administrative fine against the

Association for an impropriety, the Association has limited

assets. Its assets are constituted of $400.00 in dues per year

ordinarily assessed against the Association members for legal

expenses and maintenance of common areas in the subdivision.

44. The Board may also bring suits in pursuing its

responsibilities as trustee of sovereign lands. This

opportunity is associated with Section 253.04, Florida Statutes.

Association's Prior Applications

45. On September 18, 1992, the then Department of

Environmental Regulation, now the Department of Environmental

Protection, received the Association's Joint Application for

Works in the Waters of Florida. Parlato Exhibit No. 8 admitted

into evidence is constituted of the joint application and

contains information concerning the design of two alternatives.

46. The first alternative was for the replacement of the

L-shaped auxiliary dock that had been removed by the Parlatos.

With the reconstruction of the auxiliary dock contemplated by

the application submitted by the Association, members of the

Association could use their easement to access the auxiliary

dock and pre-existing main dock. The alternative proposed in

the application made by the Association was to construct a dock

extending directly from the easement unconnected to the

preexisting dock. The application for both alternatives was

denied. The Association challenged the denial. In a contested

hearing pursuant to Section 120.57(1) Florida Statutes, the

Association did not prevail. The outcome of that litigation is

found in Secret Oaks Owners' Association, Inc., v. State of

Florida, Department of Environmental Protection and Martin and

Linda Parlato , 15 F.A.L.R. 3786 (Dept of Env. Protection 1993).

47. The final order in the above-referenced case adopted

the recommended order entered by Ella Jane P. Davis, then

hearing officer of the Division of Administrative Hearings.

48. The Parlatos, through their petition in opposition to

the grant of an environmental permit in the present case, claim

that the Association should be denied that permit based upon the

doctrine of res judicata or collateral estoppel. To this end,

the Parlatos assert that the determination in the prior case in

which the Association was denied an environmental permit should

promote the denial of the present application for an

environmental permit.

49. In comparing the facts found in the present case with

the findings of fact in Secret Oaks 15 F.A.L.R. 3786, then

hearing officer Davis found as fact:

1. Petitioner Secret Oaks Owners'

Association, Inc. is a not-for-profit

Florida corporation with its principal place

of business in First Cove, St. Johns County,

Florida.

2. DER is the state agency charged with the

responsibility of reviewing permits under

Chapter 403, Florida Statutes , and its

applicable rules.

3. Martin Parlato and his wife Linda

Parlato are the owners of, and reside on,

Lot 10, Secret Oaks Subdivision, First Cove,

St. Johns County, Florida. They have

standing as Intervenors herein under the

following facts as found.

4. Petitioner claims rights to dredge and

fill pursuant to an easement lying along the

southerly boundary of Lot 10 in Secret Oaks

subdivision, which is a platted subdivision

in St. Johns County, Florida. The easement

runs up to and borders the St. Johns River,

a tidal and navigable river in St. Johns

County, Florida.

5. Petitioner filed an application for

dredge and fill permit with DER on

September 18, 1992. The dock was proposed

to be five feet wide and 620 feet long

including a 20-foot by 10-foot terminal

platform and six associated mooring pilings.

6. On November 3, 1992, the Petitioner

filed an alternative proposal with DER.

That submission proposed construction of an

"L" shaped walkway into the St. Johns River

to connect the easement with an existing

private dock to the north, which dock is

owned by the Intervenors. The walkway is

proposed to be five feet wide and may extend

approximately 80 feet into the river, and

then turn north and run parallel to the

shoreline a distance of 41 feet to connect

with the existing dock. Additionally, the

existing dock would be reclassified as

multi-family and four mooring pilings would

be placed on the south side of the terminal

platform.

* * *

11. Located at the proposed project site

are submerged grass beds (eel grass) that

extend from approximately 100 feet to 450

feet into the St. Johns River in depths of

two to three feet of water.

* * *

13. The grass beds at the proposed project

site are important for the conservation of

fish and wildlife and the productivity of

the St. Johns River. They provide detritus

for support of the aquatic based food chain

and they provide a unique, varied, and

essential feeding and nursery habitat for

aquatic organisms. They are valuable for

the propagation of fish. Endangered West

Indian manatees seasonally graze on the eel

grass in this locale during their annual

migrations.

* * *

15. The proposed construction of the

auxiliary dock does not intrude on the eel

grass as the dock does not extend 100 feet

from the upland. The grass beds end some

200 feet east of the west end of the dock.

DER experts testified that the time-limited

turbidity and scouring associated with the

construction of either proposed

configuration would have very minimal

impact, but the continual increased

turbidity of the water over the eel grass to

be anticipated from multi-family use of

either dock may detrimentally affect

juvenile aquatic life and the manatees'

feeding ground.

* * *

17. Petitioner intends or anticipates that

only four boats would ever dock at one time

under either configuration because of

planned arrangements for them to tie up and

due to an Easement and Homeowners Agreement

and Declaration recorded in the public

records of the county. Among other

restrictions, the Agreement and Declaration

limits dock use and forbids jet ski use.

18. The permit application seeks a multi-

family permit for either alternative dock

construction. Petitioner intends to control

the use of the dock(s) only by a "good

neighbor policy" or "bringing the

neighborhood conscience to bear." Such

proposals are more aspirational than

practical. Petitioner also cites its Secret

Oaks Owners' Agreement, which only

Petitioner (not DER) could enforce and which

Petitioner would have to return to circuit

court to enforce. Petitioner has proposed

to DER that it will limit all boating and

water activity to the westward 50 feet of

the larger dock, prohibit all boating and

water activity on the auxiliary dock, and

place warning signs on the docks indicating

the limits of permissible activity, but

Petitioner has not demonstrated that it will

provide any mechanism that would insure

strict compliance with the limited use

restrictions placed on the homeowners in

Secret Oaks by their homeowners' restrictive

covenant. Testimony was elicited on behalf

of Petitioner that Petitioner has posted and

will post warning signs and will agree to

monitoring by DER but that employing a dock

master is not contemplated by Petitioner,

that creating individual assigned docking

areas is not contemplated by Petitioner, and

that there has been no attempt by Petitioner

to draft a long-term agreement with DER,

enforceable by DER beyond the permit term.

19. The purpose of the dock is to provide

access to St. Johns River for the members of

the Secret Oaks Owners' Association which

includes owners of all 16 lots, their

families, and social invitees. Although

there are currently only three or four

houses on the 16 lots, there is the

potential for 16 families and their guests

to simultaneously use any multi-family dock.

Although all 16 lot owners do not currently

own or operate boats, that situation is

subject to change at any time, whenever a

boat owner buys a home or lot or whenever a

lot owner buys a boat. All lots are subject

to alienation by conveyance at any time. It

is noted that this community is still

developing and therefore anecdotal

observations of boating inactivity among

homeowners before the old dock was torn down

are of little weight.

20. No practical mechanism has been devised

to limit homeowners' use of the dock(s) if a

multi-family permit is issued.

21. Also, no practical mechanism has been

devised to exclude any part of the boating

community at large from docking there.

* * *

25. The potential for intensive use of

either of the proposed docks could result in

a large number of boats and/or water

activity at and around the docks. Submerged

grass beds occur in waters generally less

than three feet deep in areas near the

docks. Any boating activity landward of 450

feet from the shore could seriously damage

the extensive grass beds that occur there.

Boating activity is likely to occur in the

areas of the grass beds if a number of boats

are using the dock(s) at the same time or if

a boater desires to minimize the length of

dock to be walked, in order to reach the

uplands. That damage is expected to be from

prop dredging and re-suspension of bottom

sediments onto adjacent grasses.

* * *

CONCLUSIONS OF LAW

40. The evidence adduced at formal hearing

supports the conclusion that Petitioner has

failed to provide reasonable assurances . .

. that the project is not contrary to the

public interest.

* * *

RECOMMENDATION

Upon the foregoing findings of fact and

conclusions of law, it is recommended that

the permit application be denied without

prejudice to future applications.

50. As contemplated by the final order wherein it was

determined that the outcome in Secret Oaks Owners' Association

at 15 F.A.L.R. 3786 would not prejudice the opportunity for the

Association to make future applications, another application was

made for the construction of a dock. That application was made

on September 28, 1993, to DEP for a wetland resource management

permit allowing construction of a 4-foot wide, 70-foot long,

"L"-shaped access walkway, from the easement to the pre-existing

dock. The application contemplated the reclassification of the

pre-existing single-family dock to a multi-family dock with 6

mooring pilings to be installed at the waterward end of the pre-

existing dock creating 6 additional 15-foot wide by 20-foot long

boat slips. This application was in accordance with DER File

No. 55-238536-2, St. Johns County. With the addition of the 6

boat slips there would be 7 permanent boat moorings at the pre-

existing dock. The applicant intended to install handrails on

the portions of the dock that crossed the grass beds to preclude

boating activities in those areas. A lock-gate was to be

installed to restrict access and two signs were to be posted

advising dock users not to impact the grass beds.

51. In denying the application in DER File No. 55-238536-

2, DEP pointed to the risk of manatees that would be promoted by

the addition of 6 additional slips to the existing dock. DEP

indicated that the potential adverse impacts to manatees and

their habitat could be overcome through the entry of a long-term

agreement with DEP insuring that the facility contemplated for

construction is operated in a manner so as to protect manatees

in their habitat. The Notice of Intent to Deny became the final

disposition in that permit application absent the Association's

challenge to the preliminary decision by DEP.

52. Concerning the Parlatos' assertions of res judicata

and collateral estoppel there are significant differences in the

outcome in Secret Oaks Owners' Association at 15 F.A.L.R. 3786,

compared to the present case on the facts. The proposal in the

present case reduces the size and length of the proposed dock,

raises the height of the proposed dock above mean high water,

places handrails on the proposed dock, and most significantly,

reduces the potential mooring areas to one covered boat slip.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

case in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

Environmental Permit

54. In their Petition, the Parlatos have challenged the

Association's compliance with the public interest test found in

Section 373.414, Florida Statutes, which states in pertinent

part:

Additional criteria for activities in

surface waters and wetlands .

(1) As part of an applicant's demonstration

that an activity regulated under this part

will not be harmful to water resources or

will not be inconsistent with the overall

objectives of the district, . . . the

department shall require the applicant to

provide . . . reasonable assurance that such

activity in, on, or over surface waters or

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

not contrary to public interest.

(a) In determining whether an activity,

which is in, on, or over surface waters or

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

is regulated under this part, is not

contrary to the public interest . . . the

department shall consider and balance the

following criteria:

1. Whether the activity will adversely

affect the public health, safety, or welfare

or the property of others;

2. Whether the activity will adversely

affect the conservation of fish and

wildlife, including endangered or threatened

species, or their habitats;

3. Whether the activity will adversely

affect navigation or the flow of water or

cause harmful erosion or shoaling;

4. Whether the activity will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

activity;

5. Whether the activity will be of a

temporary or permanent nature;

* * *

7. The current condition and relative

value of functions being performed by areas

affected by the proposed activity.

55. The Association bears the burden of proving its

entitlement to the environmental permit by preponderance of the

evidence. See Department of Transportation vs. J.W.C. Co, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981).

56. Taking into account the objections raised to the grant

of the permit, the Association has provided reasonable assurance

that the project is not contrary to the public interest when

considering and balancing the criteria for review. In relation

to the affected water body, this project would be over the

surface waters of the St. Johns River, a Class III water body

and associated wetlands. In reaching this conclusion, no

attempt has been made nor could be made to resolve real property

disputes between the Association and the Parlatos. See Miller

vs. Department of Environmental Regulation , 504 So. 2d 1325

(Fla. 1st DCA 1987). Likewise, no consideration has been given,

nor could it be given, to local land use and zoning regulations

pertaining to St. Johns County. See Taylor vs. Cedar Key

Special Water and Sewerage District , 590 So. 2d 481 (Fla. 1st

DCA 1991) and Counsel of the Lower Keys vs. Charley Toppino &

Sons, Inc. , 429 So. 2d 67 (Fla. 3rd DCA 1983).

57. In relation to pos sible adverse influence on the

manatee, sufficient protections have been put in place in the

proposed project. That protection is constituted of restricted

access to the dock through the placement of handrails, signage,

and the preservation of the grass bed habitat in the placement

of the proposed dock.

58. Consistent with the DEP concept of navigation as

described in the facts, navigation will not be adversely

affected. DEP's interpretation of the meaning of adverse

affects on navigation are within its discretion. See Department

of Environmental Regulation vs. Goldring , 477 So. 2d 532 (Fla.

1985), and Motel 6 vs. Department of Environmental Regulation ,

560 So. 2d 1322 (Fla. 1st DCA 1990).

Res judicata/Collateral Estoppel

59. The doctrine of res judicata and collateral estoppel

(issue preclusion) has application in administrative

proceedings, given the quasi-judicial nature of the process.

See Florida Export Tobacco vs. Dept of Revenue , 510 So. 2d 936

(Fla. 1st DCA 1987), rev . den . 519 So. 2d 936; Hasam Realty Corp

vs. Dade County , 486 So. 2d 9 (Fla. 3rd DCA 1986), rev . dism .

492 So. 2d 1332; Thomson vs. Department of Environmental

Regulation , 511 So. 2d 989 (Fla. 1987); Doheny vs. Grove Isle,

Ltd. , 442 So. 2d 966 (Fla. 1st DCA 1983), and Yovan vs.

Burdines , 81 So. 2d 555 (Fla. 1955).

60. In applying the doctrine of res judicata , all four

elements must be in place. They are: (1) Identity in the thing

sued for; (2) Identity of the cause of action; (3) Identity of

parties; and (4) Identity of the quality of the person against

whom the claim is made. See Neidhart vs. Pioneer Savings and

Loan Ass'n. , 498 So. 2d 594 (Fla. 2nd DCA 1986).

61. The Parlatos argue that the Association is not

entitled to the issuance of an environmental permit in the

present case because the doctrine of res judicata should be

applied based upon the results in Secret Oaks Owners'

Association at 15 F.A.L.R. 3786. As in the Thomson case supra,

the present application for environmental permit compared to the

circumstances in the case of Secret Oaks Owners' Association 15

F.A.L.R. 3786, is premised upon a revised configuration of the

dock. For reasons described in the fact-finding made in this

case, the differences are substantial. Therefore, the identity

of the request is dissimilar. The application of the doctrine

of res judicata or collateral estoppel does not apply.

Concurrent Review

62. This application was made in accordance with Section

373.427(1)(a), Florida Statutes, calling for concurrent review

of the environmental permit application and the request for

proprietary authorization under Chapter 253, Florida Statutes.

Section 373.422, Florida Statutes, also reminds the applicant

that the issuance of an environmental permit is conditioned upon

receipt of necessary approval and authorization under Chapter

253, Florida Statutes, before any of the activities allowed

under terms of the permit may be undertaken.

Proprietary Authorization

63. Through a series of judgments, Richard O. Watson,

Circuit Judge, determined the Association's opportunities in

relation to the 20-foot easement and existing dock at Lot 10.

Judge Watson also discussed the auxiliary dock. In these

judgements, the Parlatos' interest in Lot 10, and the pre-

existing dock were also determined. The interests of the

protagonists were determined under civil law. In the decisions,

the court made clear that the outcome in the civil litigation

did not address the necessity for the Association to obtain

requisite environmental permits from the State of Florida or

federal agencies. The judgments were rendered in the case of

Secret Oaks Owners' Association, Inc., a not for profit

corporation, Plaintiff vs. Martin D. Parlato and Linda K.

Parlato, his wife, Defendants , in the Circuit Court, 7th

Judicial Circuit in and for St. Johns County, Florida, Case No.

CA92-692. The several judgments that have relevance here are

attached.

64. To the extent that Judge Watson's judgments were

appealed, his decisions were affirmed in Parlato vs. Secret Oaks

Owners' Ass'n , 652 So. 2d 833 (Fla. 5th DCA 1995), and Parlato

vs. Secret Oaks Owners' Ass'n , 689 So. 2d 320 (Fla. 5th DCA

1997).

65. Notwithstanding that the Association's and Parlatos'

rights and obligations to use the pre-existing dock have been

resolved by the courts under civil law, no decision has been

made by DEP in administrative law concerning an environmental

permit or proprietary rights that the Association would possess

in the existing dock extending from Lot 10. Only the Parlatos

have DEP permission to use that dock. See Secret Oaks Owners'

Association, Inc., Petitioner vs. Martin D. and Linda K.

Parlato, and State of Florida, Department of Environmental

Protection, Respondents, DOAH Case No. 98-4821/OGC Case No.

98-1329, reference Permit No. 55-136932-001-ES.

66. As a consequence, in deciding the proprietary

opportunity, if any, for the Association to construct the

proposed dock from the easement, it is not assumed that the

Association has any proprietary rights in the dock already in

place at Lot 10.

67. The beginning point for deciding the issue of consent

for the Association to construct the proposed dock from the

easement into and over sovereign submerged land is the decision

on Motion for Re-Hearing in Secret Oaks Owners' Ass'n vs.

Department of Environmental Protection , 704 So. 2d 702 (Fla. 5th

DCA 1998). The holding in that case constitutes the law of the

present case to the extent that the holding addresses matters in

dispute here.

68. Principally, the court in Secret Oaks , 704 So. 2d 702,

supra , determined that DEP was wrong in its interpretation of

Rule 18-21.004(3)(b), Florida Administrative Code, having to do

with the threshold requirement that the Association as an

applicant for activities on sovereignty lands have sufficient

title interest in the uplands at Lot 10 to advance the

application. The Court held that the Association had sufficient

rights to advance the application. The court stated at 706 and

707:

It is plain that certain rights, riparian

in nature, that inure to Lot 10 have been

ceded to the holder of the easement.

In a related reference at Footnote No. 5, the court stated:

The D.E.P. relies on Section 253.141,

Florida Statutes (1995), which provides:

Riparian rights defined; certain submerged

bottoms subject to private ownership. --

(1) Riparian rights are those incident to

land bordering upon navigable waters. They

are rights of ingress, egress, boating,

bathing, and fishing and such other as may

be or have been defined by law. Such rights

are not of proprietary nature. They are

rights inuring to the owner of the riparian

land but are not owned by him or her. They

are appurtenant to and are inseparable from

the riparian land. The land to which the

owner holds title must extend to the

ordinary high watermark of the navigable

water in order that riparian rights may

attach. Conveyance of title to or lease of

the riparian land entitles the grantee to

the riparian rights running therewith

whether or not mentioned in the deed or

lease of the upland.

D.E.P. contends this provision means that

only fee holders or lessees can have

riparian rights. We disagree. The statute

simply means that riparian rights

necessarily run with the upland. It does

not suggest that the owner of the upland

cannot contractually encumber some or all of

these rights. As D.E.P. itself argues,

however, the key to the rule is its own

terminology. If the rule meant to tie the

right to seek a permit to the riparian

rights referenced in the statute, it would

have done so in terms far simpler than what

appears in D.E.P.'s rule.

69. Having determined that DEP was clearly erroneous in

its interpretation of Rule 18-21.004(3)(b), Florida

Administrative Code, as precluding the Association from applying

for the right to conduct activities on sovereignty lands

riparian to uplands, the case was reversed and remanded,

creating the opportunity for the Association to demonstrate

compliance with other related provisions concerning proprietary

use.

70. Section 253.001, Florida Statutes, reaffirms that the

Board holds lands in the name of the Board in trust for the use

and benefit of the people of the State, pursuant to Art. III, s.

7, and Art. X, s. 11, Fla. Const.

71. Section 253.77, Florida Statutes, creates the

requirement for obtaining consent for use of sovereign lands,

title to which is vested in the Board under Chapter 253, Florida

Statutes. Section 253.77, Florida Statutes, also refers to the

relationship between the request for consent of use and the

processing of that request through the concurrent review.

72. The appellate court in Secret Oaks , 704 So. 2d 702,

supra , having determined that the Association has riparian

rights as recognized at Section 253.141, Florida Statutes, it

remains to be determined whether the Association complies with

other pertinent provisions in Chapter 18-21, Florida

Administrative Code, as it addresses the use of sovereignty

submerged lands.

73. In considering this request for consent of use DEP in

behalf of the Board must be cognizant of the intent stated in

Rule 18-21.001, Florida Administrative Code:

The intent and purpose of this rule is:

* * *

(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; . . . .

74. In deciding the outcome of this request for permission

DEP must abide by the definitions at Rule 18-21.003, Florida

Administrative Code, which states in pertinent part:

18-21.003 Definitions.

When used in these rules, the following

definitions shall apply unless the context

clearly indicates otherwise:

* * *

(2) 'Activity' means any use of sovereignty

lands which requires board approval for

consent of use, lease, easement, sale or

transfer of interest in such sovereignty

lands or materials. Activity includes, but

is not limited to, the construction of

docks, . . . removal of . . . sand, silt,

clay,

. . . gravel and the removal or planting of

vegetation on sovereignty lands.

(3) 'Applicant' means any person making

application for a lease, sale, or other form

of conveyance of an interest in sovereignty

lands or any other necessary form of

governmental approval for an activity on

sovereignty lands.

* * *

(10) 'Board' means the Governor and Cabinet

sitting as the Board of Trustees of the

Internal Improvement Trust Fund.

* * *

(14) 'Consent of use' means a nonpossessory

interest in sovereignty lands created by an

approval which allows the applicant the

right to erect specific structures or

conduct specific activities on said lands.

(15) 'Department' means the State of

Florida Department of Environmental

Protection, as administrator for the board.

* * *

(17) 'Dock' means a fixed or floating

structure, including moorings, used for the

purpose of berthing buoyant vessels.

* * *

(29) 'Marginal dock' means a fixed or

floating structure placed immediately

contiguous and parallel to an established

seawall, bulkhead or revetment.

(30) 'Marina' means a small craft harbor

complex used primarily for recreational boat

mooring or storage.

* * *

(33) 'Multi-slip docking facility' means

any marina or dock designed to moor three or

more boats, as determined by the Department

of Environmental Protection.

* * *

(36) 'Ownership oriented facility' means

docking facilities where the use of the

docking facility requires some real property

interest in one or more residential units on

the adjacent upland parcel. Yacht clubs

where membership or use of the docking

facility requires some real property

interest in the residential area shall be

included.

(37) 'Person' means individuals, minors,

partnerships, corporations, joint ventures,

estates, trusts, syndicates, fiduciaries,

firms, and all other associations and

combinations, whether public or private,

including governmental entities.

(38) '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.

* * *

(44) 'Revenue generating/income related

activity' means an activity on sovereignty

lands which produces income, through rental

or any other means, or which serves as an

accessory facility to other rental,

commercial, or industrial operations. It

shall include, but not be limited to,

docking for marinas, restaurants, hotels,

commercial fishing, shipping, and boat or

ship construction, repair and sales.

* * *

(47) 'Riparian rights' means those rights

incident to lands bordering upon navigable

waters, as recognized by the courts and

common law.

* * *

(50) 'Sovereign submerged lands' those

lands including but not limited to, tidal

lands, islands, sand cars, shallow banks,

and lands waterward of the ordinary or mean

high water line, beneath navigable fresh

water or beneath tidally-influenced waters,

which the State of Florida acquired title on

March 3, 1845, by virtue of statehood, and

which have not been heretofore conveyed or

alienated.

* * *

(57) 'Water dependent activity' means an

activity which can only be conducted on, in,

over, or adjacent to water areas because the

activity requires direct access to the water

body or sovereign submerged lands for

transportation, recreation, energy

production or transmission, or source of

water, and where the use of the water or

sovereign submerged lands is an integral

part of the activity.

75. Within the meaning of the definitions at Rule 18-

21.003, Florida Administrative Code, that have been quoted, the

Association is an "applicant" intending to conduct an "activity"

that requests from "DEP" as administrator of the "Board" the

"consent of use" allowing the construction and use of a "dock"

over "sovereign submerged lands." This project does not involve

a "marginal dock." This project is not a "marina." This

project does not involve a "multi-slip docking facility." This

project is not an "ownership oriented facility." The

Association is a "person." If constructed, the dock would

create a "preempted area" between the proposed dock and the

adjacent existing docks. This project does not involve "revenue

generating/income related activity." The appellate court has

determined that the Association has "riparian rights" incident

to the easement bordering the St. Johns River, a navigable

waterbody. The project involves a "water dependent activity."

76. In determining the acceptability of the proposed

project, resort is made to Rule 18-21.004, Florida

Administrative Code, which states 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.

(b) All leases, easements, deeds or other

forms of approval for sovereignty land

activities shall contain such terms,

conditions, or restrictions as deemed

necessary to protect and manage sovereignty

lands.

* * *

(d) Activities on sovereignty lands shall

be limited to water dependent activities

only unless the board determines that it is

in the public interest to allow an exception

as determined by a case by case evaluation.

Public projects which are primarily intended

to provide access to and use of the

waterfront may be permitted to contain minor

used which are not water dependent if:

1. located in areas along seawalls or

other nonnatural shorelines;

2. located outside of aquatic preserves

or

class II waters; and

3. the nonwater dependent uses are

incidental to the basic purpose of the

project, and constitute only minor

nearshore encroachments on sovereign

lands.

* * *

(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.

* * *

(d) Activities shall be designed to

minimize or eliminate any cutting, removal,

or destruction of wetland vegetation (as

listed in Rule 62-4.020(17), Florida

Administrative Code) on sovereignty lands.

* * *

(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 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.

Marginal docks may be set back only 10 feet.

There shall be no exceptions to the setbacks

unless the applicant's shoreline frontage is

less than 65 feet or a sworn affidavit of no

objection is obtained from the affected

adjacent upland riparian owner, or the

proposed structure is a subaqueous utility

line.

77. Rule 18-21.00401, Florida Administrative Code, also

identifies the expectation that this request for consent of use

is considered in the context of a concurrent review of the

application for general environmental resource permit.

78. Resort is made to the definition within Rule 18-

21.005(1)(a)1., Florida Administrative Code, which states in

pertinent part:

(1) All activities on sovereignty lands

shall require a consent of use, lease,

easement, use agreement, special event

authorization, or other form approval, The

following shall be used to determine the

form of approval required:

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

following activities, provided that any such

activity not located in the Aquatic Preserve

or Manatee Sanctuary and which is exempt

from Department of Environmental Protection

permitting requirements under Section

403.813(2)(a), (b), (c), (d), (e), (g), (h),

(i), and (k), Florida Statutes, is hereby

exempted from any requirement to make

application for consent of use, and such

consent is herein granted by the board.

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; . . .

79. DEP is authorized to consider the Association's

request for consent of use under the delegation of authority

described in Rule 18-21.0051, Florida Administrative Code.

80. In this case, consent of use may be sought by the

Association, in that the project involves a single dock which is

no more than the minimum length and size necessary to provide

reasonable access to navigable water as envisioned by Rule 18-

21.005(1)(a)1., Florida Administrative Code.

81. The project is not contrary to the public interest,

notwithstanding its preemptive nature. See Rule 18-

21.004(1)(a), Florida Administrative Code.

82. The proposed activities on sovereignty lands are

limited to water-dependent activities. See Rule 18-

21.004(1)(d), Florida Administrative Code.

83. The project involves use of sovereignty lands for

traditional uses such as fishing, boating, and swimming. See

Rule 18-21.004(2)(a), Florida Administrative Code.

84. The activities envisioned by this project will not

result in significant adverse impact to sovereignty lands and

associated resources. See Rule 18-21.004(2)(b), Florida

Administrative Code. The project has been designed to minimize

destruction of wetland vegetation on sovereignty lands. See

Rule 18-21.004(2)(d), Florida Administrative Code.

85. The project has been designed to minimize adverse

impacts on fish and wildlife habitat with special attention and

consideration given to the manatee habitat. See Rule 18-

21.004(2)( i), Florida Administrative Code.

86. Given the limitation of the riparian rights held by

the Association, extending from the easement frontage which is

only 20 feet wide, the activities associated with the use of the

proposed dock cannot be expected to be conducted within the

riparian rights area of the Association, without interfering

with the neighboring dock owners. As a consequence, an

unreasonable infringement and restriction would be created upon

the traditional, common law riparian rights of upland property

owners adjacent to sovereignty lands, given the nature of the

design of the proposed dock, and the activities contemplated in

its usage. Under the circumstances it would be inappropriate to

allow the applicant to take advantage of the exception to the

minimum 25-foot setback requirement, notwithstanding that the

shoreline frontage is less than 65 feet, recognizing that the

adjacent upland riparian owners object to the project. Based

upon the interference with the riparian rights of adjacent

upland riparian owners, the consent of use should be denied.

See Rule 18-21.004(3)(a), (c), and (d), Florida Administrative

Code.

87. In recognition that the environmental resource permit

is conditioned upon receipt of consent of use, the environmental

resource permit should not be issued absent a determination to

grant the consent to use sovereign submerged lands.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That the Department of Environmental Protection deny the

Association the proprietary opportunity to use sovereign

submerged lands, thus denying the requested environmental

resource permit.

DONE AND ENTERED this 27th day of January, 2000 , in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallah assee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of January , 2000.

ENDNOTES

1/ Robert C. Downie, II, Esquire, was permitted to withdraw as

counsel for Martin and Linda Parlato, subsequent to the

completion of the final hearing.

2/ Bram D. E. Canter, Esquire, appeared for Martin and Linda

Parlato in substitution for Robert C. Downie, II, Esquire.

3/ DEP proposed issuance of consent of use to the Association

following review of the Association's request for consent of use

and in deference to the decision in Secret Oaks Owners'

Association, Inc. v. Department of Environmental Protection , 704

So. 2d 702 (Fla. 5th DCA 1998).

COPIES FURNISHED:

Patricia Ward

912 Fruit Cove Road

Jacksonville, Florida 32259

Bram D. E. Canter, Esquire

1358 Thomaswood Drive

Tallahassee, Florida 32312

Ronald W. Brown, Esquire

Dobson & Brown, P.A.

66 Cuna Street

St. Augustine, Florida 32984

Francine M. Ffolkes, Esquire

Suzanne B. Brantley, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Teri Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

David B. Struhs, Secretary

Department of Environmental Protection

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.

CONTACT THE DOAH CLERK'S OFFICE TO VIEW THE FOLLOWING

ATTACHMENTS TO THIS RECOMMENDED ORDER:

Partial Summary Judgement

Declaratory Judgement

Order Amending and Clarifying the Declaratory Judgement