05-000058 Kevin Scully vs. Sam Patterson And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, April 14, 2005.

Summary: The applicant proved, by a preponderance of the evidence, that he was entitled to an exemption from obtaining an Environment Resource Permit to construct a private dock on an artificially created canal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEVIN SCULLY, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0058

)

SAM PATTERSON and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMEND ED ORDER

Notice was given, and on March 29, 2005, a final hearing

was conducted by Charles A. Stampelos, Administrative Law Judge,

by video teleconference with sites in Tallahassee and West Palm

Beach, Florida.

APPEARANCES

For Petitioner: Kevin Scu lly, pro se

941 Brookdale Drive

Boynton Beach, Florida 33435

For Respondent: Sam Patterson, pro se

9449 Worswick Court

Wellington, Florida 33414

For the Department of Environmental Protection:

Francine M. Ffolkes, Esquire

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee , Florida 32399 - 3000

STATEMENT OF THE ISSUE

Whether Sam Patterson’s proposed dock project is exempt

from the need to obtain an Environmental Resource Permit (ERP)

from the Department of Environmental Protection (Department)

under Florida Administrativ e Code Rules 40E - 4.051(3)(c) and (d).

PRELIMINARY STATEMENT

On or about September 3, 2004, Respondent, Sam Patterson

(Mr. Patterson), filed an application requesting an ERP

exemption to replace an existing five - foot by 21 - foot (105 -

square feet) marginal dock in the same location, configuration,

and dimensions as the existing dock. He also requested

permission to install a five - foot by 16 - foot (80 - square feet)

finger pier perpendicular to the existing marginal dock.

The Department reviewed the applicat ion and on October 13,

2004, advised Mr. Patterson, in part, that his project was

exempt from the need to obtain an ERP under Florida

Administrative Code Rules 40E - 4.051(3)(c) and (d).

On or about December 17, 2004, Kevin Scully (Mr. Scully)

filed an Ame nded Petition challenging the Department's

preliminary agency action.

On January 7, 2005, the Department referred the matter to

the Division of Administrative Hearings (DOAH) for the

assignment of an administrative law judge. On February 7, 2005,

this m atter was set for a final hearing to commence on March 9,

2005. Subsequently, the case was continued for good cause shown

and reset to commence on March 29, 2005, by video teleconference

with sites in Tallahassee and West Palm Beach, Florida.

On March 2 4, 2005, the parties filed their Joint Pre -

Hearing Stipulation. Also, on March 24, 2005, Mr. Scully's

counsel filed a motion to withdraw, which was granted.

On March 25, 2005, the Department filed seven joint

exhibits. During the final hearing, Joint E xhibits (JE) 1

through 7 were admitted in evidence without objection, with the

caveat that Mr. Scully’s Amended Petition (Joint Exhibit 5)

contained allegations, which required proof.

The Department called Jennifer Smith, Department

Environmental Special ist III, as a witness. Mr. Patterson

testified in his own behalf and also called Charles Bell, a

licensed marine contractor, as a witness. Mr. Scully testified

in his own behalf and also offered the testimony (by telephone)

of Muir C. “Mike” Ferguson, Ci ty Commissioner, City of Boynton

Beach, and Ken Clark, a barber by profession and a boater for

over 20 years.

On April 5, 2005, Mr. Scully filed a two - page letter as his

proposed recommended order (PRO). On April 8, 2005, the

Department filed a PRO. Mr . Patterson did not file a PRO. No

transcript of the final hearing was filed.

FINDINGS OF FACT

The Parties

1. Mr. Scully resides at 941 Brookdale Drive, Boynton

Beach, Florida, Lot 16, adjacent to and south - southeast of Mr.

Patterson's residential prop erty. The northern or rear portion

of Mr. Scully's lot borders on an artificial canal that is

designated a Class III water by Department rule. He does not

have a dock per se ; he moors his boat against and parallel to a

narrow concrete area (and his lot l ine), separated by buffering

material.

2. Mr. Patterson, the applicant, owns the property at 930

Brookdale Drive, Boynton Beach, Florida, Lot 15. Lot 15 is

north - northwest and adjacent to Mr. Scully’s property. This

residential property is currently l eased to others. The

residential property (Lot 14) adjacent to and north - northeast of

Mr. Patterson's lot is apparently owned by an individual named

Meloche.

3. The Department has the jurisdiction to determine

whether the proposed project is exempt from ERP requirements.

The Proposed Project

4. On or about September 13, 2004, Mr. Patterson filed an

application requesting an exemption to replace an existing five -

foot by 21 - foot (105 - square feet) marginal dock in the same

location, configuration, and dimen sions as the existing dock.

He also requested an exemption to install a five - foot by 16 - foot

(80 - square feet) wooden finger pier extending perpendicular to

and from the middle of the existing marginal dock.

5. As of the final hearing, the project has b een revised

such that the wooden finger pier will extend 11.8 feet (rather

than 16 feet) and perpendicular from the middle of the marginal

dock. Mr. Patterson changed the length of the finger pier to

comply with City regulations, which are not at issue in this

case.

6. The “Site Plan” is attached to the Department’s Notice

of Determination of Exemption. (JE 1). The “Site Plan” shows a

one - story residence on Mr. Patterson's Lot 15. The front of the

lot measures 100 feet, whereas the rear of the lot (t hat abuts

the canal on the easternmost portion of the lot) is 50 feet in

length from south to north. The seawall is one - and - one - half

feet in width. The existing marginal dock abuts the seawall

running south to north and is 21 feet long and five feet wide .

Small concrete platforms abut the marginal dock on the south and

north.

7. The Department reviewed the original application and on

October 13, 2004, advised Mr. Patterson, in part, that his

project was exempt from the need to obtain an ERP under Flor ida

Administrative Code Rules 40E - 4.051(3)(c) and (d). The

Department had not reviewed the change to the project prior to

the final hearing. See Finding of Fact 5.

8. Lots 16, 15, and 14 are situated as a cul - de - sac (semi -

circle) with the canal north of Lot 16, east of Lot 15, and

south of Lot 14. Lot 14 is across the canal from Mr. Scully's

Lot 16. There are five properties on each side of the canal,

running west to east.

9. The artificial canal runs directly east from Mr.

Patterson’s property f or an uncertain distance to the

Intracoastal Waterway (ICW). Mr. Patterson’s property (Lot 15)

is the western end - point for this canal.

10. Mr. Patterson’s eastern property line (fronting the

canal) is 50 feet in width. However, the precise width of the

canal between Lots 14 and 16 is unclear.

11. Ms. Smith reports (in her site inspection report of

March 3, 2005 (JE 3)) that the canal is approximately 50 feet

wide. Mr. Patterson testified that Karen Main with the City of

Boynton Beach advised him tha t the consensus opinion of City

employees reviewing the issue was that the canal measured 66

feet in width.

12. There appears to be some widening of the canal east of

Mr. Patterson’s property line and then the canal appears to

straighten - out as it proce eds to the east to the ICW and past

the easterly property lines for Lots 14 and 16. See (JEs 1 - site

plan; 5 - aerial).

13. The weight of the evidence indicates that the canal,

between Lots 14 and 16, is approximately 60 to 66 feet wide.

See , e.g. , id.

14. In the past, the prior owner of Lot 15 (Mr.

Patterson's property) moored a boat at and parallel to the

marginal dock, which means that the bow, for example, faced Lot

14 and the stern faced Lot 16.

15. Mr. Patterson currently owns a 16 - foot boat t hat he

wants to moor at the marginal dock. However, he feels that it

is unsafe to do so, particularly if Mr. Scully’s boat drifts.

16. Meloche (Lot 14 to the north) has a fixed boatlift,

which allows for the elevation of a boat out of the water, with

the bow facing west toward and in front of the northern end of

Mr. Patterson’s seawall. (JE 4).

17. Mr. Scully moors his boat parallel to the shoreline of

Lot 16 and perpendicular to Mr. Patterson’s 50 - foot eastern

seawall and property line. (JEs 4 and 6 ).

18. Mr. Scully’s seawall intersects Mr. Patterson’s

seawall such that when Mr. Scully’s 22 - foot boat is moored at

his seawall, it is also in front of the southern end of Mr.

Patterson’s seawall. Id. When Mr. Scully’s boat is tightly

moored at his s eawall, it does not interfere with or block Mr.

Patterson’s marginal dock. (JE 6). However, when Mr. Scully’s

boat is loosely moored, it drifts toward the center of the canal

in front of Mr. Patterson’s marginal dock. (JE 4).

19. With no boat moored at the marginal dock, Mr. Scully

is able to freely maneuver his boat to his seawall with limited

“backing” of his boat required (stern first). With a boat

consistently moored at Mr. Patterson’s marginal dock, Mr. Scully

would have to back into his area besi de his seawall in order to

avoid colliding with that boat.

20. Mr. Patterson’s finger pier would enable him to safely

moor a boat perpendicular to the marginal dock. Centering the

finger pier at the marginal dock is likely to make it easier for

Mr. Patte rson and Mr. Scully to navigate to their respective

mooring areas, depending on the size of the boats moored by Mr.

Patterson and Mr. Scully. (The Department, in reviewing similar

exemption requests, does not consider the type and size of the

boat(s) to b e moored at the proposed dock or adjacent mooring

site.)

21. It is preferable for the boats to be moored, in this

location, stern first, with the bow facing down the canal from

the wake of the boats traveling in the ICW.

22. Centering the finger pier at the marginal dock and

mooring Mr. Patterson’s boat on the north side of the finger

pier is likely to enable Meloche, Mr. Patterson, and Mr. Scully

to moor their boats parallel to each other and avoid collisions. 1

Placement of the finger pier at the northe rn end of the finger

pier, while favored over the proposed location by Mr. Scully, is

likely to interfere with Meloche’s use of his property and

boatlift.

23. With the finger pier centered on the marginal dock and

a boat moored to the north, Mr. Scully ca n maneuver his boat to

his seawall by “backing in” stern first. An experienced boater

can accomplish this task in two to three maneuvers. Mr. Scully

is an experienced boater and has lived on the canal for

approximately eight years.

24. Shortening the fi nger pier from 16 feet to 11.8 feet

will not affect Mr. Patterson’s ability to safely moor a boat on

the northern side of the finger pier.

The Challenge

25. Mr. Scully contends that the placement of the wooden

finger pier and the mooring of a sizable boat on the proposed

finger pier will interfere with his ability to navigate in and

out of the canal in or around his property, and necessarily

interfere with his ability to moor his boat adjacent to his

property. He also contends that the marginal dock and t he

finger pier are two docks, not one.

Resolution of the Controversy

26. Replacement of the existing marginal dock will consist

of replacing the decking and using the existing pilings. The

existing marginal dock is currently functional.

27. Reconstruc tion of the marginal dock and construction

of the finger pier will be done by a licensed marine contractor.

The licensed marine contractor will use best management

practices to avoid water quality problems in the canal during

construction. Construction o f the proposed project is not

expected to adversely affect flood control or violate water

quality standards.

28. The proposed project will not impede navigation. But

see Endnote 1.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jur isdiction over the parties to, and the subject matter of,

this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

30. This proceeding is intended to formulate final agency

action, not to review action taken earlier and preliminarily by

the Department. McD onald v. Department of Banking and Finance ,

346 So. 2d 569 (Fla. 1st DCA 1977).

31. Mr. Patterson has the burden to prove, by a

preponderance of the evidence, that he is entitled to the

requested exemption. Department of Transportation v. J.W.C.,

Co. , 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

32. The Department is the agency responsible for

administering the provisions of Chapter 373, Part IV, Florida

Statutes, regarding activities in surface waters of the state

that may or may not require an ERP.

33. Florida Administrative Code Rule 40E - 4.051(3)(a)

authorizes the Department to approve exemptions from ERP

requirements for the “construction, replacement or repair of

mooring pilings and dolphins associated with private docking

facilities.” In particula r, an exemption may be approved for

“[c]onstruction of private docks in artificially created

waterways where construction will not violate water quality

standards, impede navigation, or adversely affect flood control”

and when replacement of the existing d ock will require no fill

material other than the piles used, the replaced dock is in the

same location, configuration, and dimensions as the dock being

replaced, and the existing dock is functional. Fla. Admin. Code

R. 40E - 4.051(3)(c) and (d)1. - 3. Only o ne exempt dock may be

allowed per parcel or lot where the shoreline length is less

than 65 feet along the shoreline for the parcel or lot. Fla.

Admin. Code R. 40E - 4.051(3)(b)4.

34. "It has been established that a mere inconvenience, if

one exists, does not constitute the type of navigational hazard

or adverse impact on navigation contemplated by" former Section

403.918(2)(a)3., Florida Statutes (1993), now Section

373.414(1)(a)3., Florida Statutes. See generally Berger v.

Kline, Department of Environme ntal Protection, and Citrus

County , Case No. 93 - 0264, 1994 WL 75879, at *6, *19 (DOAH Nov.

29, 1993; DEP Jan. 11, 1994). See also Archipelago Community

Association, Inc. v. Raab and Department of Environmental

Protection , Case No. 98 - 2430, 2000 WL 545612 (DOAH Mar. 1, 2000;

DEP Apr. 13, 2000).

35. Mr. Patterson proved that the proposed finger pier

would not impede navigation in and around the canal area near

Lots 14, 15, and 16; that the proposed construction would not

violate water quality standards or a dversely affect flood

control; and that the replacement of the existing dock satisfies

the requirements of Florida Administrative Code Rule 40E -

4.051(3)(d)1. - 3. Mr. Patterson also proved that the marginal

dock and the proposed finger pier will be one dock .

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 concluding that Mr. Patterson’s proposed

dock project, as revised, is exempt from the ne ed to obtain an

ERP.

DONE AND ENTERED this 14th day of April, 2005, in

Tallahassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of April, 2005.

ENDNOTE

1 / Mr. Patterson testifi ed that he intends to moor one boat at

the finger pier. Mr. Scully testified that Mr. Patterson told

him that he intends to moor two boats at the finger pier.

Mooring a boat on the south side of the finger pier may cause

Mr. Scully difficulty and more th an an inconvenience in docking

his boat, depending on the width and length of the boat moored

on the south side of the finger pier. Mr. Patterson should be

bound by his representation and limited to mooring one boat on

the north side of the finger pier.

COPIES FURNISHED :

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Greg Munson, General Counsel

Department of Environmental Protectio n

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Colleen M. Castille, Secretary

Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

F rancine M. Ffolkes, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Sam Patterson

9449 Worswick Court

Wellington, Florida 33414

Kevin Scully

941 Brookdale Drive

Boynton Beach, Florida 33435

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.