06-003296 John Woolshlager vs. Keith Rockman And Department Of Environmental Protection Status: Closed Recommended Order on Monday, May 7, 2007.

Summary: The dock extension did not create a navigational hazard for neighbors or the Intracoastal waterway. The project is exempt for a permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN WOOLSHLAGER, )

)

Petitioner, )

)

vs. ) Case No. 06 - 3296

)

KEITH ROCKMAN and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on March 20,

2007, in Shalimar, Florida.

APPEARANCES

For Petitioner: John N. C. Ledbetter, Esquire

4641 Gulfstarr Drive

Suite 102

Destin, Florida 32541 - 5324

For Respondent: Michael William Mead, Esqu ire

(Rockman) John S. Mead, Esquire

Michael Wm Mead, P.A.

Post Office Drawer 1329

Fort Walton Beach, Florida 32549 - 1329

For Respondent: Nona R. Schaffner, Esquire

(Department) Amanda G. Bush, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

ISSUES

The issues are whether Keith Rockman's construction of a

dock and other structures on Choctawhatchee Bay in Fort Walton

Beach, Florida, is exempt from Wetland Resource Permit

requirements, and whether authorization to use sovereign

submerged lands for the project should be given.

BACKGROUND

This matter began on January 31, 2006, when Respondent,

Department of Environmental Protection (Department), issued a

letter advising Mr. Rockman that his proposed construction of a

platform, two access piers, a nd fourteen mooring pilings in

Choctawhatchee Bay in Fort Walton Beach, Florida, was exempt

from Department permit requirements. The letter also

constituted "authorization to use sovereign submerged land for

the construction of [his] project."

On March 17 , 2006, Petitioner, John Woolshlager, who lives

next door to Mr. Rockman, filed a letter requesting a hearing to

contest the determination that the activity was exempt from

permitting requirements and that authorization to use sovereign

submerged lands sho uld be given. The letter was also filed on

behalf of another neighbor, Charles A. Kennedy. On June 27,

2006, the Department issued an Order Dismissing Petition with

Leave to Amend. In doing so, the Order struck a riparian

boundary line claim included i n the letter on the ground such a

claim could only be prosecuted in the circuit court.

On July 11, 2006, Mr. Woolshlager (but not Mr. Kennedy)

filed a second letter which was treated as an Amended Petition.

(It was learned at hearing that Mr. Kennedy no longer owns the

adjacent property.) In that letter, he raised two grounds for

reversing the Department's action, both found in Florida

Administrative Code Rule 18 - 21.004(7), which contains general

conditions for authorizations to use sovereign submerged lands.

The matter was forwarded by the Department to the Division

of Administrative Hearings on September 1, 2006, with a request

that an administrative law judge be assigned to conduct a

hearing.

By Notice of Hearing dated September 14, 2006, the matt er

was scheduled for final hearing on January 9 and 10, 2007, in

Fort Walton Beach, Florida. Venue was changed to Shalimar,

Florida, and the matter was later continued to February 1, 2007,

and then again to March 20, 2007, at the same location.

A status conference was held on January 5, 2007, at which

time the undersigned ruled that only one issue in the Amended

Petition required adjudication: whether the proposed structure

or activities will create a navigation hazard within the meaning

of Florida Admi nistrative Code Rule 18 - 21.004(7)(g). Also, the

parties agreed to the admission of the Department's permit file

as an exhibit at hearing. This ruling and agreement are

embodied in an Order dated January 24, 2007.

At the final hearing, Petitioner testif ied on his own

behalf. The Department presented the testimony of Diana Athnos,

an Environmental Manager in the Department's Northwest District

Office in Pensacola. Also, it offered Department Composite

Exhibits 1 and 2, which were received in evidence. Mr. Rockman

testified on his own behalf and presented the testimony of

Michael Imm, who is licensed to pilot 100 - ton vessels.

The Transcript of the hearing was filed on April 9, 2007.

Proposed Findings of Fact and Conclusions of Law were filed by

Mr. Ro ckman and the Department on April 18 and 19, 2007,

respectively, and they have been considered in the preparation

of this Recommended Order. None were filed by Petitioner.

FINDINGS OF FACT

Based on the evidence presented by the parties, the

following find ings of fact are made:

1. On December 19, 2005, Mr. Rockman, who lives at 325

Brooks Street, Southeast, Fort Walton Beach, Florida, filed an

application with the Department's Northwest District Office in

Pensacola requesting authorization to construct a p latform seven

feet wide by eight feet long; an access pier three feet long;

another access pier four feet wide by forty - five feet long; four

mooring pilings outside the slip; and ten mooring pilings inside

the proposed slip, totaling 371 square feet. The application

indicated that the proposed construction activities would take

place in the Choctawhatchee Bay, a Class III water of the State,

on which Mr. Rockman's property fronts. (This waterbody is more

commonly known as the Santa Rosa Sound or the Intra coastal

Waterway.) The property already had an existing 25 - foot dock

when Mr. Rockman purchased the property sometime in 2005;

however, because Mr. Rockman wishes to dock a larger boat than

the prior owner, he has requested authorization to build the

stru ctures in issue here.

2. Based upon the information supplied by the applicant,

Diana Athnos, an Environmental Manager with the Northwest

District Office, advised Mr. Rockman by letter dated January 31,

2006, that the Department had "determined that [his ] project is

exempted from [the Department's] Wetland Resource Permit

requirements by Rule 62 - 312.050(1)(d), Florida Administrative

Code." The letter also stated that the "letter is your

authorization to use sovereign submerged land (if applicable)

for th e construction of your project, as required by Chapter

253.77, Florida Statutes and Chapter 18 - 21, F.A.C." After

Department approval was obtained, Mr. Rockman completed

construction of the project.

3. Mr. Rockman elected not to publish notice of the

Department's decision or provide notice by certified mail to

specific individuals. Therefore, third parties were not barred

from challenging the Department's decision until after they

received actual notice . Petitioner, who lives next door to

Mr. Rockman, learned about the Department's decision in a

telephone call with the Northwest District Office on March 8,

2006. The papers filed in this case indicate that Petitioner

and other neighbors had actually o bserved construction

activities on Mr. Rockman's property in November 2005 and had

filed complaints with the Department regarding these

unauthorized activities. These complaints evidently led to the

filing of an application by Mr. Rockman.

4. On March 17, 2006, Petitioner, who resides at 328

Brooks Street, Southeast, Fort Walton Beach, and has 50 feet of

frontage on the water with a dock extending into those waters,

filed a letter with the Department, which was treated as a

Petition challenging the Depa rtment's earlier decision. This

Petition was later dismissed by the Department on the ground it

raised claims concerning Petitioner's riparian rights, a matter

beyond the Department's jurisdiction. Petitioner then filed an

Amended Petition on July 11, 20 06, in which he again contended

that his riparian rights would be severely restricted by the

proposed activities, and that the dock would create a

navigational hazard. Although Florida Administrative Code Rule

62 - 312.050(1)(d)3. requires that a project no t "create a

navigational hazard" in order to be exempt from permitting

requirements, Petitioner opted to base his claims on two

provisions in Florida Administrative Code Rule 18 - 21.004(7),

which contains the general conditions for authorizations to use

sov ereign submerged lands. The riparian rights issue was again

excluded from consideration at a status conference held on

January 5, 2007. The parties advise that this issue is now

being pursued in a separate action in circuit court.

5. Through the intro duction into evidence of its complete

permit file as Department Composite Exhibit 1, the Department

established that the proposed activities are exempt from

permitting requirements under Florida Administrative Code Rule

62 - 312.050(1)(d). More specifically , the activity will take

place in waters which are not located in Outstanding Florida

Waters; the structures are less than 1,000 square feet of

surface area over the landward extent of waters of the State;

they will be used for recreational purposes; they will be

constructed on pilings; they will not substantially impede the

flow of water or create a navigational hazard; and the structure

is the sole dock constructed pursuant to the exemption as

measured along the shoreline for a minimum distance of 65 feet .

6. The dock and associated structures and pilings will be

constructed over sovereign submerged lands owned by the State of

Florida. Under Florida Administrative Code Rule 18 - 21.005(1),

which specifies the forms of authorization for consent to use

sov ereign submerged lands, "no application or written

authorization is required for an activity that is exempt from

the requirements of obtaining a permit," so long as certain

conditions are met, including those found in Florida

Administrative Code Rules 18 - 2 1.004(7). See Fla. Admin. Code R.

18 - 21.005(1)(b). The only relevant condition raised in the

Amended Petition is whether or not the "[s]tructures or

activities shall . . . create a navigational hazard." Fla.

Admin. Code R. 18 - 21.004(7)(g). In construin g this rule, and

the similar requirement in Florida Administrative Code Rule 62 -

312.050(1)(d)3., the Department considers whether the structures

will create a navigational hazard for boaters on the

Intracoastal Waterway, as well as the owners of property w ho

reside on either side of Mr. Rockman.

7. In his Amended Petition, Mr. Woolshlager contended that

the proposed structures or activities will create a navigational

hazard when he accesses the dock in front of his property. As

clarified at hearing, Petit ioner does not dispute that he (or

any "good boat driver") has adequate ingress and egress for his

smaller boat, even with the larger dock on Mr. Rockman's

property. Indeed, the record shows that he has been observed

leaving his dock and accessing the Int racoastal Waterway.

However, Petitioner indicated that if he should die, his wife

intends to sell the property. If the new purchaser desires to

dock a larger boat, he fears that there will not be sufficient

room to do so, and the value of his property wi ll be diminished.

8. Through testimony from a licensed boat captain, it was

established that Mr. Rockman's dock does not create a

navigational hazard for boaters in the Intracoastal Waterway

whose boat channel lies at least 600 feet or so from the

shore line, or for property owners on either side of the

applicant's property. Although Petitioner cannot dock a larger

boat than he now has (a 21 - foot boat), this is because he needs

to dredge out the area where his existing dock is built and

reconfigure its s hape. (Mr. Woolshlager agreed that his dock

actually encroaches a few feet onto Mr. Rockman's property;

however, Mr. Woolshlager advises that the prior owner (who sold

the property to Mr. Rockman) agreed to this encroachment when he

purchased the property .) Therefore, all criteria have been

satisfied.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to Sections 120.569 and

120.57(1), Florida Statutes (2006).

10. The burden of proof is on the part y asserting the

affirmative of an issue before an administrative tribunal. See ,

e.g. , Balino v. Department of Health & Rehabilitative Servs. ,

348 So. 2d 349, 350 (Fla. 1st DCA 1977). Therefore, Mr. Rockman

has the burden of proving by a preponderance of the evidence

that the proposed activity is exempt from Department permitting

requirements and that authorization to construct the project on

sovereign submerged lands is appropriate.

11. Florida Administrative Code Rule 62 - 312.050(1)(d)

provides that no permit shall be required for the following type

of projects:

(d) The installation of private docks 500

square feet or less of surface area over the

landward extent of waters of the State or

1000 square feet or less of surface area

over the landward exten t of waters of the

State for docks which are not located in

Outstanding Florida Waters and any of which:

1. is used for recreational, non - commercial

activities, associated with the mooring or

storage of boats and boat paraphernalia; and

2. is construc ted or held in place by

pilings, including floating docks, so as not

to involve filling or dredging other than

that necessary to install the pilings; and

3. does not substantially impede the flow

of water or create a navigational hazard;

and

4. is th e sole dock constructed pursuant to

this exemption as measured along shoreline

for a minimum distance of 65 feet, unless

the parcel of land or individual lot as

platted is less than 65 feet in length along

the shoreline, in which case there may be

one exem pt dock allowed per parcel or lot.

For the purposes of this rule, multi - family

living complexes and other types of

complexes or facilities associated with the

proposed private dock shall be treated as

one parcel of property regardless of the

legal divisio n of ownership or control of

the associated property. Construction of a

private dock under this exemption does not

require the Department to issue a subsequent

permit to construct a channel to provide

navigational access to the dock. Activities

associate d with a private dock shall include

the construction of structures attached to

the pier which are only suitable for the

mooring or storage of boats (i.e.

boatlifts).

12. This portion of the application is not in dispute, and

the evidence shows that the proposed construction is exempt from

Department permitting requirements. Even if the Amended

Petition is construed to include a contention that the proposed

activities create a navigational hazard within the meaning of

subparagraph (1)(d)3. of the foregoi ng rule, for the reasons

stated below, this part of the rule has been satisfied.

13. Because the Department is authorizing activities on

sovereign submerged lands, the general conditions for

authorizations under Florida Administrative Code Rule 18 - 21.004

come into play. See Fla. Admin. Code R. 18 - 21.005(1)(b)4.(in

order to obtain authorization, "the activity must . . . [c]omply

with the provisions of . . . subsections 18 - 21.004(6) and (7)").

Subsections (7)(f) and (g) of that rule are pertinent here,

hav ing been raised by Mr. Woolshlager in his Amended Petition,

and require that all authorizations granted by rule or in

writing shall be subject to the following conditions:

(f) Structures or activities shall not

unreasonably interfere with riparian rights.

When a court of competent jurisdiction

determines that riparian rights have been

unlawfully affected, the structure or

activity shall be modified in accordance

with the court's decision.

(g) Structures or activities shall not

crea te a navigational hazard.

14. Because the first ground involves property rights that

can only be resolved in circuit court, the navigation claim is

the only issue requiring adjudication. See § 26.012(2)(g), Fla.

Stat. (the circuit court has exclusive ju risdiction in "all

actions involving the title and boundaries of real property");

Board of Trustees of the Internal Improvement Trust Fund v.

Board of Professional Land Surveyors , 566 So. 2d 1358, 1361

(Fla. 1st DCA 1990)(holding that agency could not esta blish or

apply an administrative rule to determine the ordinary high

water line because "the determination of rights of parties to a

riparian boundary dispute is instead a matter subject ultimately

to judicial resolution under all applicable law").

15. As to the second issue, the preponderance of the

evidence supports a conclusion that Mr. Rockman's project will

not create a navigational hazard. In reaching this conclusion,

it is noted that mere inconvenience does not constitute the type

of navigational h azard contemplated by the rule. See Scully v.

Patterson and Department of Environmental Protection , DOAH Case

No. 05 - 0058 (DOAH April 14, 2005, DEP May 23, 2005), 2005 Fla.

Div. Adm. Hear. LEXIS 948 at *12, and cases cited therein.

While the project may create some inconvenience, or cause

Petitioner to be more cautious during ingress and egress from

his dock, the project will not create a navigational hazard.

16. In summary, Mr. Rockman has demonstrated by a

preponderance of the evidence that his project is exempt from

Department permitting requirements and that he meets the

conditions for authorization to use state - owned submerged lands.

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 granting Mr. Rockman's application for an

exemption from permitting requirements and authorization to use

state - owned submerged lands.

DONE AND ENTERED this 7th day of May, 2007, in Tallahassee,

Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Fil ing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of May, 2007.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

John N. C. Ledbetter, Esquire

4641 Gulfstarr Drive

Suite 102

Destin, Florida 32541 - 5324

Nona R. Schaffner, Esquire

Amanda G. Bush, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevar d

Mail Station 35

Tallahassee, Florida 32399 - 3000

Michael William Mead, Esquire

John S. Mead, Esquire

Michael Wm Mead, P.A.

Post Office Drawer 1329

Fort Walton Beach, Florida 32549 - 1329

Gregory M. Munson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Michael W. Sole, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.