99-000851 Bay Oaks Circle Association, Inc. vs. Department Of Environmental Protection Status: Closed Recommended Order on Friday, July 16, 1999.

Summary: Petitioner produced no evidence that could support the issuance of an environmental resource permit or a submerged land lease.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAY OAKS CIRCLE ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 99-0851

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

and )

)

RICHARD G. PERKINS, )

)

Intervenor. )

___________________________________)

RECOMMENDED ORDER

On April 21, 1999, a formal administrative hearing in this

case was held in Fort Myers, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Barry L. Dasher, pro se

Bay Oaks Circle Association, Inc.

3075 Bay Oaks Circle

Englewood, Florida 34223

For Respondent: Francine M. Ffolkes, Esquire

De partment of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Intervenor: Richard G. Perkins, pro se

4005 Bay Oaks Circle

Englewood, Florida 34223

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner should be

granted an environmental resource permit and authorization to use

sovereign submerged lands for construction of an extension to an

existing multi-family residential docking facility.

PRELIMINARY STATEMENT

On June 4, 1997, the Petitioner filed an application for an

environmental resource permit and for authorization to use

sovereign submerged lands for construction of an extension to an

existing multi-family residential docking facility. A number of

requests for information were made after the filing of the

application. The Respondent issued an undated Notice of Permit

Denial apparently on or about October 28, 1998. The Petitioner

filed a request for formal hearing on November 2, 1998. The

request was forwarded to the Division of Administrative Hearings,

which scheduled and conducted the proceeding.

At the hearing, the Petitioner's representative testified on

behalf of the association, and had one exhibit admitted into

evidence. The Respondent presented the testimony of one witness

and had exhibits numbered 1-6 admitted into evidence. The

Intervenor testified on his own behalf.

A Transcript of the hearing was filed. The Respondent filed

a Proposed Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Bay Oaks Circle Association, Inc.,

represents the 20 property owners of the Bay Oaks Circle

subdivision. Bay Oaks Circle borders on Lemon Bay.

2. Lemon Bay is a Class II Outstanding Florida Water.

Lemon Bay is also an aquatic preserve and a designated state

"Special Water."

3. The Lemon Bay aquatic preserve is recognized for its

water quality and resources. To protect the resources, special

standards are applicable to review of permits for aquatic

activities.

4. The Petitioner's existing dock was permitted in the

1970's. The dock has four slips and extends approximately 100 to

120 feet from the shoreline into water depths of approximately

one to one and a half feet at low tide. The dock attaches to the

shoreline from a 45.5-foot wide easement owned by the Petitioner.

5. There is evidence of prop dredging in the existing

mooring area. The existing mooring area has little natural value

as a water resource.

6. Initially, the proposed dock was to extend another 120

feet (for a total extension of 220-240 feet) into deeper water

approximately three to three and a half feet at low tide and

would accommodate a mooring area for eight slips.

7. In the area of the proposed dock, most of Lemon Bay is

about three and a half feet deep at low tide.

8. The application was subsequently amended to provide an

extension of 112 feet for a total length of 199.5 feet, with six

boat slips. The final proposal provided for a 104 feet long by

three feet wide access walkway. Two 16 feet long by two feet

wide "finger" piers would extend from the walkway. The end of

the walkway would terminate in a dock platform 8 feet by 20 feet

wide. The total square footage of proposed structure over water

is 536 square feet.

9. The proposed mooring areas are defined by mooring

pilings place into the bay bottom. The applicant seeks a

sovereign submerged land lease to permit the preemption of 2,219

square feet of submerged bottom land.

10. Because the proposed dock exceeds 500 square feet in an

Outstanding Florida Water, a standard environmental resource

permit must be obtained before the proposal can be constructed.

11. Two of the proposed mooring slips are over seagrasses.

Additionally, two shallow areas located nearby contain

seagrasses.

12. Seagrasses provide the basis of the food chain in the

waters. Adverse impacts to seagrass beds negatively affect

marine productivity, as well as the fishing and recreational

values of the waters.

13. The proposed dock expansion poses a threat to the

seagrass beds at the mooring slips and in the shallow areas near

the shoreline and to the east of the proposed dock.

14. Although the proposed dock extension does not appear to

directly impede a marked navigation channel, review of the bay

bottom suggests that boats currently navigate in the proposed

mooring area to avoid a shallower nearby shoal. It is likely

that the proposed dock expansion would result in diversion of

boat traffic into the seagrassed area of the shallower waters.

15. Section 373.414(1), Florida Statutes, sets forth the

review criteria used in consideration of a permit application

when the proposed activity occurs in an Outstanding Florida

Water.

16. The Petitioner offered no evidence to establish that

the permitting criteria set forth at Section 373.414(1), Florida

Statutes, have been met.

17. The proposed multi-family docking facility requires

issuance of a sovereign submerged land lease before the facility

can be constructed.

18. Sovereign submerged land leases are reviewed according

to the size of the proposed facility and the quality of the lands

to be impacted by construction and operation.

19. Submerged land is classified according to resource

quality into "Resource Protection Areas ( RPA)" to permit

appropriate application review. An RPA I is an area of fragile,

easily-damaged marine resources such as coral beds or seagrasses,

that require the highest level of protection. An RPA II is an

area or seagrasses or benthic animals which, while not as fragile

as an RPA I, still require substantial protection. An RPA III is

an area of sand that contains fewer marine resources than an RPA

I or II.

20. The seagrassed areas near the proposed docking facility

are classified as an RPA I.

21. The areas near the proposed docking facility contain

less seagrass, but have substantial evidence of benthic anumals,

and are classified as RPA II.

22. According to the parties, the Petitioner must meet a

"ten to one" rule to obtain a permit. In the alternative, the

Petitioner may qualify for a lease if the proposed facility does

not exceed the maximum square footage permitted for a single-

family dock.

23. The ten-to-one criteria provides that the total dock

structure may not preempt more than ten times the linear footage

of the property owner's shoreline, in which case a lease may be

issued.

24. In this case, the shoreline is 45.5 feet, resulting in

a permissible preemption of 455 square feet. In this case the

applicant proposes to preempt 2,219 square feet.

25. According to the credited testimony of the Respondent’s

witness, the single-family dock methodology does not qualify the

proposed dock for permitting. Although a number of hypothetical

dock proposals were discussed at the hearing, the hypothetical

proposals are not included in the permit application. There is

no evidence that the agency gave any formal consideration to

hypothetical proposals prior to the hearing.

26. At the hearing, the Petitioner proposed that the

applicable rules be waived to allow the permit and lease to be

issued. Specifically, the Petitioner proposed that the

permitting criteria be waived as to dock design and minimum

square footage.

27. There is no credible evidence to support waiver of

applicable statutes and rules in this case.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

29. The Department of Environmental Protection is

responsible for review and disposition of permit applications for

the project at issue in this proceeding. Section 373.414(1)(a),

Florida Statutes.

30. The Department of Environmental Protection has been

delegated the authority to address applications under Chapters

253 and 258, Florida Statutes, for proprietary authorization for

use of state-owned submerged lands under the authority of the

Board of Trustees, when such applications also require the

issuance of an environmental resource permit. Sections 253.77,

373.422, and 373.427, Florida Statutes.

31. The applicant has the burden of proving entitlement to

the permit by a preponderance of the evidence. DOT v. J.W.C. Co.

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981.) In this case, the

burden has not been met.

32. Section 373.414(1) Florida Statutes, sets forth the

permitting standards by which this application must be

considered, and provides as follows:

As part of an applicant's demonstration that

an activity regulated under this part will

not be harmful to the water resources or will

not be inconsistent with the overall

objectives of the district, the governing

board or the department shall require the

applicant to provide reasonable assurance

that state water quality standards applicable

to waters as defined in s. 403.031(13) will

not be violated and reasonable assurance that

such activity in, on, or over surface waters

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

is not contrary to the public interest.

However, if such an activity significantly

degrades or is within an Outstanding Florida

Water, as provided by department rule, the

applicant must provide reasonable assurance

that the proposed activity will be clearly in

the public interest.

(a) In determining whether an activity,

which is in, on, or over surface waters or

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

is regulated under this part, is not contrary

to the public interest or is clearly in the

public interest, the governing board or 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;

6. Whether the activity will adversely

affect or will enhance significant

historical and archaeological resources

under the provisions of s. 267.061; and

7. The current condition and relative

value of functions being performed by

areas affected by the proposed activity.

33. The evidence fails to establish that the proposed

extension of the dock is clearly in the public interest.

34. Section 253.77(1), Florida Statutes, provides that any

activity requiring use of sovereign state lands must receive the

consent or proprietary authorization, such as a lease, from the

state.

35. Section 18-20, Florida Administrative Code, sets forth

the requirements to obtain a lease of sovereign submerged lands.

Section 18-20.004(1)(b), Florida Administrative Code, states,

"There shall be no further sale, lease or transfer of sovereignty

lands except when such sale, lease or transfer is in the public

interest."

36. Section 18-20.004(2), Florida Administrative Code,

provides as follows:

(2) PUBLIC INTEREST ASSESSMENT CRITERIA:

In evaluating requests for the sale, lease or

transfer of interest, a balancing test will

be utilized to determine whether the social,

economic and/or environmental benefits

clearly exceed the costs.

(a) GENERAL BENEFIT/COST CRITERIA:

1. any benefits that are balanced against

the costs of a particular project shall be

related to the affected aquatic preserve;

2. in evaluating the benefits and costs of

each request, specific consideration and

weight shall be given to the quality and

nature of the specific aquatic preserve.

Projects in the less developed, more pristine

aquatic preserves such as Apalachicola Bay

shall be subject to a higher standard than

the more developed preserves; and

3. for projects in aquatic preserves with

adopted management plans, consistency with

the management plan will be weighed heavily

when determining whether the project is in

the public interest.

(b) BENEFIT CATEGORIES:

1. public access (public boat ramps,

boatslips, etc.);

2. provide boating and marina services

(repair, pumpout, etc.);

3. improve and enhance public health,

safety, welfare, and law enforcement;

4. improved public land management;

5. improve and enhance public navigation;

6. improve and enhance water quality;

7. enhancement/restoration of natural

habitat and functions; and

8. improve/protect

endangered/threatened/unique species.

(c) COSTS:

1. reduced/degraded water quality;

2. reduced/degraded natural habitat and

function;

3. destruction, harm or harassment of

endangered or threatened species and habitat;

4. preemption of public use;

5. increasing navigational hazards and

congestion;

6. reduced/degraded aesthetics; and

7. adverse cumulative impacts.

(d) EXAMPLES OF SPECIFIC BENEFITS:

1. donation of land, conservation easements,

restrictive covenants or other title

interests in or contiguous to the aquatic

preserve which will protect or enhance the

aquatic preserve;

2. providing access or facilities for public

land management activities;

3. providing public access easements and/or

facilities, such as beach access, boat ramps,

etc.;

4. restoration/enhancement of altered

habitat or natural functions, such as

conversion of vertical bulkheads to riprap

and/or vegetation for shoreline stabilization

or re-establishment of shoreline or submerged

vegetation;

5. improving fishery habitat through the

establishment of artificial reefs or other

such projects, where appropriate;

6. providing sewage pumpout facilities where

normally not required, in particular,

facilities open to the general public;

7. improvements to water quality such as

removal of toxic sediments, increased

flushing and circulation, etc.;

8. providing upland dry storage as an

alternative to wetslip; and

9. marking navigation channels to avoid

disruption of shallow water habitats.

37. The evidence fails to establish that the proposed dock

extension at issue in this proceeding meets the criteria for

issuance of a land lease.

38. The Petitioner produced no credible evidence in support

of the application to extend the dock. The Petitioner’s sole

witness acted as the Association’s representative. He wrote a

statement essentially expressing his opinion of the application

process and read the statement at the hearing. The only exhibit

offered by the applicant was a copy of his statement. The

Petitioner offered no evidence relevant to the issue of whether

the proposed project meets the applicable permitting criteria.

The Petitioner offered no evidence that would support the

assertion that the permitting criteria should be waived in this

case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department of Environmental

Protection enter a final order denying the application for the

proposed dock extension filed by the Bay Oaks Circle Association,

Inc.

DONE AND ENTERED this 16th day of July, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, 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 16th day of July, 1999.

COPIES FURNISHED:

Barry L. Dasher

Bay Oaks Circle Association, Inc.

3075 Bay Oaks Circle

Englewood, Florida 34223

Francine M. Ffolkes, Attorney

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Richard G. Perkins

4005 Bay Oaks Circle

Englewood, Florida 34223

Kathy Carter, Agency Clerk

Office of the General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

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 must be filed with the agency that will

issue the Final Order in this case.