06-002859 R. Scott Rosenblum vs. Wayne Zimmet And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, October 23, 2007.

Summary: Applicant for dock exemption did not prove "no impediment" to navigation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT R. ROSENBLUM, ) )

)

Petitioner, )

) Case No. 06-2859

vs. )

)

WAYNE ZIMMET and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

RECOMMENDED ORDER

Notice was given, and on September 6, 2007, a final hearing

was conducted by J. Lawrence Johnston, Administrative Law Judge,

in Stuart, Florida.

APPEARANCES

For Petitioner: Jacob Eli Ensor, Esquire

Ross, Earle & Bonan, P.A.

759 South Federal Highway, Suite 212

Stuart, Florida 34994-2972

For Applicant: James D. Ryan, Esquire

Ryan & Ryan Attorneys, P.A.

631 U.S. Highway One, Suite 100

North Palm Beach, Florida 33408-4614

For the Department of Environmental Protection:

Nona R. Schaffner, Esquire

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether Wayne Zimmet's proposed single-family boat dock and

lift project is exempt from the need to obtain an Environmental

Resource Permit (ERP) from the Department of Environmental

Protection (Department) under Florida Administrative Code Rule

40E-4.051(3)(c). 1

PRELIMINARY STATEMENT

On or about May 25, 2006, Respondent, Wayne Zimmet, filed

an application requesting an ERP exemption to install an eight-

foot by twenty-foot (160-square feet) marginal dock with a two-

pile elevator lift to accommodate his boat, which is

approximately 24.5 feet long (22 feet at the waterline) and

eight-feet wide.

The Department reviewed the application and on June 23,

2006, advised Mr. Zimmet, in part, that his project was exempt

from the need to obtain an ERP under Rule 40E-4.051(3)(c).

On or about July 10, 2006, Scott R. Rosenblum filed a

Request for Administrative Hearing challenging the Department's

preliminary agency action.

On August 8, 2006, the Department referred the matter to

the Division of Administrative Hearings (DOAH) for the

assignment of an administrative law judge. On August 25, 2006,

this matter was set for a final hearing in Stuart, Florida, to

commence on October 30, 2006. Subsequently, the case was

continued three times for good cause shown and eventually was

rescheduled to be heard on September 6-7, 2007.

On August 20, 2007, Mr. Rosenblum filed a Motion for

Continuance on the ground that the Department had no

jurisdiction to resolve real property disputes as to who has the

right to use an existing dock, and particularly the south side

of the existing dock, located roughly between the adjacent

properties owned by Messrs. Rosenblum and Zimmet. The

continuance was opposed by Mr. Zimmet and, after a telephonic

hearing, denied with the understanding that the real property

disputes would be determined in a pending action between the

parties in state circuit court, since the circuit court has the

exclusive jurisdiction to determine those issues, and not in

this proceeding, for purposes of which it would be presumed that

Mr. Rosenblum has the right to use the existing dock. As a

result, the sole issue for determination in this proceeding is

whether the proposed dock will "impede navigation."

On September 4, 2007, the parties filed a Pre-Hearing

Stipulation. At the outset of the hearing, Department Exhibits

1 through 6 were received in evidence in accordance with the

Pre-Hearing Stipulation. In addition, the Motion for Official

Recognition of a Florida Statute and applicable Rules, filed by

the Department on January 19, 2007, was granted. Then counsel

for Mr. Zimmet called: Frederick Vogel of Vogel Marine;

Mr. Zimmet; Jason Storrs, the Department reviewer; Mr. Rosenblum

as an adverse party witness; and Thomas Danti, Dean of the

Chapman School of Seamanship, who actually was Mr. Rosenblum's

navigation expert witness. Counsel for Mr. Zimmet having called

all the witnesses, the other parties relied on their cross-

examination, which in some cases was allowed to exceed direct

without objection. Mr. Rosenblum added one exhibit (his Exhibit

1, also erroneously referred to as his Exhibit 2) to the

evidence presented in the case.

After the presentation of the evidence, and oral closing

statements by counsel for Mr. Zimmet and Mr. Rosenblum, who

ordered the preparation of a Transcript of the hearing, the

parties were given ten days from the filing of the Transcript to

file proposed recommended orders. The Transcript was filed on

October 5, 2007, and the parties' timely post-hearing

submissions have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Both Wayne Zimmet and Scott Rosenblum own property in

Tequesta, Florida, in a community known as North Passage, which

has a man-made navigation and drainage easement canal that

terminates at its eastern end at Mr. Rosenblum's property, which

is Lot 74, at 8738 Riverfront Terrace. Mr. Zimmet's property,

which is Lot 75, at 8750 Riverfront Terrace, is south of the

eastern terminus of the canal. The Rosenblum and Zimmet

properties are adjacent and share a common boundary.

2. There is an existing dock extending from Mr.

Rosenblum's property into the canal. The existing dock is

perpendicular to, and extends west from the middle of, the shore

of the eastern terminus of the canal. There is a wooden walkway

leading from the residence on Mr. Rosenblum's property to the

existing dock. However, there also has been a wooden walkway

leading from Mr. Zimmet's property to the existing dock. As

indicated in the Preliminary Statement, there is a dispute

between Mr. Zimmet and Mr. Rosenblum as to who is entitled to

access and use the existing dock--and in particular the south

side of the existing dock. That dispute will be resolved in

state circuit court. 2 For purposes of this proceeding, it will

be assumed that Mr. Rosenblum has the right to use the existing

dock.

3. On or about May 25, 2006, Mr. Zimmet filed an

application requesting an ERP exemption to install an eight-foot

by twenty-foot (160-square feet) marginal dock with a two-pile

elevator lift to designed to accommodate his boat, which is

approximately 24.5 feet long (22 feet at the waterline) and

eight feet wide. According to documentation submitted with the

application, the proposed dock would be centered along the

waterfront of his property and extend approximately four feet

into the canal. The proposed boat lift would be skewed toward

the western end of the proposed marginal dock with the intent

being to dock his boat with the bow facing the west so that

proposed dock could be used to enter and load the boat from the

stern. This positioning of the proposed lift and boat at the

proposed dock would skew a boat on the lift at the proposed dock

about three feet to the west, away from the existing dock.

4. Based on the evidence, it is found that Mr. Zimmet did

not prove by a preponderance of the evidence that his proposed

boat dock and lift, even if skewed to the west as indicated in

the application drawings, would not "impede navigation" to and

from the south side of the existing dock. (Otherwise, Mr.

Zimmet's proposed dock and lift would not "impede navigation" in

the canal.) This impediment to navigation to and from the south

side of the existing dock is not a mere inconvenience. Although

Mr. Rosenblum now only owns and uses a raft at the existing

dock, he testified that he plans on purchasing and using a boat.

Boats in the range of approximately 24.5 feet in length with a

beam of 8 to 8.5 feet are common in the North Passage canal. A

boat of that size docked at the south side of the existing dock

would barely fit alongside Mr. Zimmet's boat, whether docked or

on the lift, and there would not be a reasonable amount of

clearance for navigating a boat of that size commonly to or from

the south side of the existing dock if Mr. Zimmet's boat were

docked at the proposed dock or on the proposed lift. (Likewise,

if a boat of that size were docked on the south side of the

existing dock, there would not be a reasonable amount of

clearance for Mr. Zimmet to use his proposed dock and lift.)

5. There was no evidence of any impediment to navigation

to and from the north side of the existing dock.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

7. This proceeding is intended to formulate final agency

action, not to review action taken earlier and preliminarily by

the Department. McDonald v. Department of Banking and Finance ,

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

8. Mr. Zimmet 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).

9. The Department is the agency responsible for

administering the provisions of Chapter 373, Part IV, Florida

Statutes, (2006), regarding activities in surface waters of the

state that may or may not require an ERP.

10. 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 particular, 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.” Fla. Admin. Code R. 40E-4.051(3)(c).

11. "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), which became Section

373.414(1)(a)3., Florida Statutes (2006). See generally Berger

v. Kline, Department of Environmental Regulation and Citrus

County , Case No. 93-0264, 1993 Fla. Div. Adm. Hear. LEXIS 5536,

at *25-6 (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 Fla. ENV

LEXIS 97 (DOAH Mar. 1, 2000; DEP Apr. 13, 2000). However, as

found, the proposed dock's impediment to navigation to and from

the south side of the existing dock would not be a mere

inconvenience.

12. Since this case is on an application for an exemption,

conditions that might prevent the proposed dock and lift from

impeding navigation cannot be imposed. See Scully v. Patterson

and Dept. of Environmental Protection , DEP Case No. 04-1799,

DOAH Case No. 05-0058, 2005 Fla. Div. Adm. Hear. LEXIS 948 (DEP

May 20, 2005; DOAH Apr. 14, 2005)(Final Order, on DOAH website,

rejects, as unauthorized in exemption case, ALJ's suggestion to

limit applicant to use of one side of dock). See also Castoro,

et al. v. Palmer and Dept. of Environmental Protection , DEP Case

No. 96-346, DOAH Case Nos. 96-0736 and 96-5879, 1998 Fla. ENV

LEXIS 303 (DEP Oct. 15, 1998; DOAH Sept. 1, 1998)(similarly,

noticed general permit is not "issued," since it is established

by rule, but rather its use is authorized).

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, absent a circuit court

determination that Mr. Rosenblum does not have the right to

access and use the south side of the existing dock, Mr. Zimmet's

proposed dock and lift project is not exempt from the need to

obtain an ERP.

DONE AND ENTERED this 23rd day of October, 2007, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of October, 2007.

ENDNOTES

1 / All rule citations are to the officially recognized version

of the Florida Administrative Code (2006).

2 / Based on Petitioner's Exhibit 1, the wooden walkway from Mr.

Zimmet's property has been removed, but there was no evidence as

to the circumstances of its removal, which presumably would be a

matter more properly considered in the pending circuit court

case referred to in the Preliminary Statement.

COPIES FURNISHED :

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

James D. Ryan, Esquire

Ryan & Ryan Attorneys, P.A.

631 U.S. Highway One, Suite 100

North Palm Beach, Florida 33408-4614

Nona R. Schaffner, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Jacob Eli Ensor, Esquire

Ross, Earle & Bonan, P.A.

759 South Federal Highway, Suite 212

Stuart, Florida 34994-2972

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.