07-004116 Peter J. Pedicini vs. Stuart Yacht Corporation And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, February 20, 2008.

Summary: Recommend that the petition challenging a dock permit be dismissed for lack of standing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER J. PEDICINI, )

)

Petitioner, )

)

vs. ) Case No. 07 - 4 116

)

STUART YACHT CORPORATION and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

A hearing in this case was held on December 19, 2007, in

Stuart , Florida, before Bram D. E. Canter, an Administrative Law

Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Guy Benn ett Rubin, Esquire

Rubin & Rubin

Post Office Box 395

Stuart, Florida 34995

For Respondents: Paul B. Erickson, Esquire

Alley, Maass, Rogers & Lindsay, P.A.

340 Royal Poinciana Way, Suite 321

Palm Beach, Florida 33480

Amanda Gayle Bush, Esquire

Department of Environmental Protection

Office of the General Counsel

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399

ISSUES

The issues for determination in this case are w hether

Petitioner has standing to bring this action and, if so, whether

Respondent Stuart Yacht Corporation is entitled to the General

Permit which the Department of Environmental Protection

(Department) intends to issue.

PRELIMINARY STATEMENT

On August 1 4, 2007, the Department issued a Notice of

Determination of Qualification for a Noticed General Permit to

Stuart Yacht Corporation to remove an existing dock and to

construct a new dock in a manmade canal connected to the South

Fork of the St. Lucie River in Stuart, Martin County, Florida.

A timely petition challenging the proposed agency action was

filed by Petitioner. The Department referred the matter to DOAH

to conduct an evidentiary hearing. In referring the matter to

DOAH, the Department expressly reserved its right to object to

Petitioner’s standing to initiate this proceeding.

The Department subsequently filed a motion to dismiss the

petition on the ground that Petitioner lacked standing. Stuart

Yacht Corporation joined in the motion to dismiss. In its

motion, the Department argued that the ruling of the circuit

court for Martin County in Stuart Yacht Corporation v. Peter

Pedicini , Case No. 430025CA630 (October 10, 2007), that Mr.

Pedicini had no riparian rights associated with the manmade

canal, was dispositive on the issue of Petitioner’s standing in

this administrative proceeding. The Administrative Law Judge

(ALJ) denied the motion to dismiss, but noted that the denial of

the motion did not affect the requirement that Petitioner

affirmatively prove his standing at the final hearing.

On December 11, 2007, Petitioner moved for a continuance of

the final hearing based on alleged problems associated with the

deposition of certain expert witnesses of Stuart Yacht

Corporation and Petitioner’s inabil ity to review certain

Department exhibits. Because Petitioner’s grounds for a

continuance were not related to the standing issue, the ALJ

denied the motion for continuance, but informed the parties in

the Order Denying Continuance that the subject matter of the

hearing on December 19, 2007, would be exclusively whether

Petitioner has standing.

At the hearing, Petitioner presented the testimony of Peter

Pedicini and Wayne Dube. Petitioner’s Exhibits 1 , 2, 3, and 5

were received into evidence. Stuart Yacht Corporation and the

Department presented no witness testimony or exhibits. The

Order Determining Riparian Rights that was issued by the circuit

court was officially recognized. The ALJ informed the parties

at the conclusion of the hearing that a ruling on Petitioner’s

standing would be made without post - hearing submittals from the

parties. The one - volume Transcript of the final hearing was

filed with DOAH on January 31, 2008.

FINDINGS OF FACT

1. Petitioner owns Lot 4 in St. Lucie Settlement, a

subdivis ion in Stuart, Florida. The subdivision has one border

along the South Fork of the St. Lucie River. The subdivision

has a finger fill that extends to the South Fork with canals on

both sides. There are four lots on the finger fill, Lots 1

through 4 of t he subdivision. Lot 4 is farthest from the river.

2. On the north side of Petitioner’s property he has a

dock where he keeps a boat.

3. The dispute in this case involves the canal on the

south side of Petitioner’s property. All references to “the

canal ” hereafter, unless otherwise noted, will be to the canal

on the south side of Lot 4.

4. Between Lot s 2, 3, and 4 and the canal is a road which

provides access to the lots on the finger fill. Between the

road and the canal is a narrow strip of land. Pet itioner owns

this narrow strip of land where it corresponds with his lot

lines. In other words, the southern boundary of his Lot 4 abuts

the canal. However, because the canal is artificial, having

been created by dredging, Petitioner has no riparian righ ts

associated with the canal. That was the holding of the circuit

court for Martin County in the litigation between Stuart Yacht

Corporation and Petitioner.

5. It was also established in the circuit court litigation

that St. Lucie Settlement, Inc., which is the homeowner ' s

association for the subdivision, owns the northern half of the

canal and Stuart Yacht Corporation owns the southern half of the

canal.

6. No subdivision documents were presented to show the

extent of rights granted to homeowners within St. Lucie

Settlement related to the construction of docks or other uses of

water bottoms that are included within the subdivision.

7. Petitioner testified that he terminated his membership

in the homeowners association three - and - a - half years ago.

8. Stu art Yacht Corporation owns and operates a marina on

the south side of the canal which includes docks over the water.

At some point in the past, but before Petitioner purchased Lot 4

in 1995, Stuart Yacht Corporation constructed a dock along the

north side of the canal, over the water bottom owned by St.

Lucie Settlement, Inc. The dock along the north side of the

canal has been used for mooring large yachts.

9. The portion of the dock that ran along the boundary of

Lot 4 was recently removed by Stuart Yac ht Corporation following

the rulings in the circuit court. The balance of the dock along

the north side of the canal would be removed as a part of the

proposed permit that Petitioner has challenged.

10. In addition to removing the dock along the north si de

of the canal, the proposed permit authorizes Stuart Yacht

Corporation to construct a new dock that is four feet wide and

runs 150 feet along the property boundary in the center of the

canal. No part of the proposed new dock would be on the

property of St. Lucie Settlement, Inc.

11. St. Lucie Settlement, Inc., did not challenge the

proposed permit.

12. In his petition for hearing, Petitioner alleged that

the proposed new dock would cause the following injuries to his

interests:

a. interference with in gress and egress to

Petitioner’s shoreline;

b. interference with Petitioner’s desire to obtain a

permit in the future to construct a dock or to “harden” the

southern shoreline; and

c. interference with Petitioner’s riparian rights.

13. Petitioner’s test imony about his past use of the canal

was inconsistent. He said he moored his boat in the canal once

in 1995. He said he boated into the canal to fish on several

occasions. He said that (at least twice) when he attempted to

enter the canal by boat, he w as denied access by representatives

of Stuart Yacht Corporation. However, in a deposition taken

before the hearing, Petitioner said he had never attempted to

use the canal.

14. The only testimony presented by Petitioner to support

his claim that the prop osed permit would interfere with his

navigation, fishing, and desire to obtain a dock permit in the

canal was the following:

I couldn’t get a boat in there with that

proposed dock in the center line of the

canal right on their side of the canal. It

would be 150 feet long. It would be a huge

W all of China. My neighbor and I couldn’t

get to our shoreline.

15. The evidence presented was insufficient to prove that

Petitioner would be unable to navigate into the canal in a small

boat or to fish in the canal if the proposed dock is

constructed. The evidence was also insufficient to prove that

Petitioner would be unable to construct any kind of dock for any

kind of watercraft if the proposed dock is constructed.

CONCLUSIONS OF LAW

16. DOAH has jurisdiction over the parties and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes (2007).

17. Subsection 120.569(1), Florida Statutes, provides that

the right to participate in administrative proceedings extends

to any pe rson whose substantial interests will be affected by

proposed agency action.

18. The most informative case on the subject of the rights

of adjacent landowners to make use of artificial water bodies is

Publix v. Pearson , 315 So.2d 98 (Fla. 2d DCA 1971). The holding

in Publix was that persons whose property abutted an artificial

lake had no riparian rights and could not enjoin the owner of a

portion of the lake bottom from filling its lake bottom to

construct a shopping center. It was acknowledged by the court

that the filling would “cut off access to and use of the surface

waters of a portion of the lake.” Id. at 99. Nevertheless, the

court held that the appellees’ interest in using the entire lake

could not prevent the owner of the bottom from exercisi ng

control of its property.

19. The Publix holding requires a conclusion that

Petitioner cannot complain of an injury to his interest in

preserving the opportunity to navigate over the bottom of the

canal owned by Stuart Yacht Corporation because that is not a

legally cognizable interest.

20. Petitioner failed to allege or show that he w ould not

be able navigate into the canal and fish from a small boat if

the proposed permit is issued. The evidence presented indicates

otherwise. Petitioner did not al lege that he cannot access the

St. Lucie River. Even riparian landowners with riparian rights

do not have rights to multiple dock s. The riparian right to

"wharf out" is a qualified right to facilitate access to

navigable waters . Thiesen v. Gulf, F. & A. R. Co. , 48 So. 491

(Fla. 1918).

21. Petitioner’s interest in constructing a dock in the

future is speculative. Moreover, Petitioner did not allege or

prove that it w ould be impossible to build any kind of dock for

any kind of watercraft. Petitioner ' s c laims appear to be based

on the presumption that he has the right to sail a large yacht

into the canal and dock it at his shorelin e . However, e ven the

riparian right to build a dock does not include the right to

build a dock of a particular type or which would accommodate a

vessel of a particular size.

22. Petitioner presented no evidence to support his claim

that the proposed permit c ould prevent him from hardening his

shoreline.

23. Because the evidence presented was insufficient to

prove that Petition er has a substantial interest that c ould be

unreasonably interfered with if the proposed permit were issued,

Petitioner failed to demonstrate his standing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED th at the Department

1. dismiss the petition for hearing based on Petitioner ' s

failure to prove standing, and

2. issue the proposed permit to Stuart Yacht Corporation.

DONE AND ENTERED this 20th day of February, 2008, in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee 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 20th day of February, 2008.

COPIES FURNISHED :

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealt h 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 E nvironmental Protection

The Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Paul B. Erickson, Esquire

Alley, Maass, Rogers & Lindsay, P.A.

340 Royal Poinciana Way, Suite 321

Palm Beach, Florida 33480

Amanda Gayle Bush, Esqu ire

Department of Environmental Protection

Office of the General Counsel

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399

Guy Bennett Rubin, Esquire

Rubin & Rubin

Post Office Box 395

Stuart, Florida 34995

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.