08-000217
Normandy Shores, Llc vs.
Department Of Environmental Protection
Status: Closed
Recommended Order on Monday, March 2, 2009.
Recommended Order on Monday, March 2, 2009.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8NORMANDY SHORES, LLC, )
12)
13Petitioner, )
15)
16vs. ) Case No. 08-0217
21)
22DEPARTMENT OF ENVIRONMENTAL )
26PROTECTION, )
28)
29Respondent. )
31_______________________________ )
33RECOMMENDED ORDER
35Pursuant to notice, this matter was heard before the
44Division of Administrative Hearings by its assigned
51Administrative Law Judge, Donald R. Alexander, on December 3 and
614, 2008, in Miami, Florida.
66APPEARANCES
67For Petitioner: Daniel L. Abbott, Esquire
73Weiss, Serota, Helfman, Pastoriza,
77Cole & Boniske, P.L.
81200 East Broward Boulevard, Suite 1900
87Fort Lauderdale, Florida 33301-1949
91Stephen J. Helfman, Esquire
95John J. Quick, Esquire
99Weiss, Serota, Helfman, Pastoriza,
103Cole & Boniske, P.L.
1072525 Ponce de Leon Boulevard, Suite 900
114Coral Gables, Florida 33134-6045
118For Respondent: Brynna J. Ross, Esquire
124Kelly K. Samek, Esquire
128Department of Environmental Protection
1323900 Commonwealth Boulevard
135Mail Station 35
138Tallahassee, Florida 32399-3000
141STATEMENT OF THE ISSUE
145The issue is whether ten applications filed by Petitioner,
154Normandy Shores, LLC, for an exemption from Environmental
162Resource Permit (ERP) requirements to construct and install ten
171docks to serve eighteen private boat slips and a letter of
182consent to use sovereign submerged lands in Indian Creek, within
192the Biscayne Bay Aquatic Preserve (Preserve), Miami Beach,
200Florida, should be approved.
204PRELIMINARY STATEMENT
206This matter began on December 13, 2007, when Respondent,
215Department of Environmental Protection (Department), issued a
222Consolidated Notice of Denial Exemption and Letter of Consent to
232Use Sovereign Submerged Lands (Notice of Intent) advising
240Petitioner that its applications for an exemption under Florida
249Administrative Code Rule 40E-4.051(3)(b) and a letter of consent
258to use sovereign submerged lands to construct ten docks serving
268eighteen private, single-family residences adjacent to Indian
275Creek, Miami Beach, had been denied. 1
282On January 3, 2008, Petitioner timely filed its Petition of
292Normandy Shores, LLC, for Formal Administrative Hearing
299(Petition) to contest the Department's preliminary determination
306on the grounds the Department "mischaracterized Petitioner's
313requests, incorrectly applied the true facts[,] and erroneously
322interpreted Section 40E-4.051, F.A.C.; 18-21, F.A.C.; and 18-18,
330F.A.C." The Petition was forwarded by the Department to the
340Division of Administrative Hearings on January 11, 2008, with a
350request that an administrative law judge be assigned to conduct
360a hearing.
362By Notice of Hearing dated January 25, 2008, the matter was
373scheduled for final hearing on March 25 and 26, 2008, in Miami,
385Florida. By Order dated February 27, 2008, Petitioner's
393Unopposed Motion to Reset Administrative Hearing was granted,
401and the matter was continued to July 1 and 2, 2008, at the same
415location. By Order dated May 15, 2008, Respondent's Unopposed
424Request to Re-Schedule Administrative Hearing was granted, and
432the case was rescheduled to September 15 and 16, 2008. The
443parties then filed a Joint Request to Reschedule Administrative
452Hearing and the final hearing was rescheduled to December 3 and
4634, 2008.
465On September 10, 2008, the Department amended its Notice of
475Intent by (1) making its decision applicable to Petitioner's
484tenth application which had been inadvertently omitted from the
493original Notice of Intent; (2) changing a rule citation in
503Section III of the Notice of Intent to reflect 40E-4.051(3)(b),
513rather than 40E-4.14(3)(b), as the rule upon which it relied;
523and (3) adding as a reason for denying the letter of consent
535that the proposed docks will result in unacceptable cumulative
544impacts on the Preserve's natural systems in contravention of
553Florida Administrative Code Rule 18-18.008.
558Just prior to the final hearing, the Department's Motion to
568Quash a subpoena ad testificandum served on one of its employees
579was granted. At the final hearing, Petitioner presented the
588testimony of Les G. Jones, its managing partner; Jason L. Jones,
599its general project and development manager; Brie Cokos, a
608marine scientist with Ocean Consulting and accepted as an
617expert; and Kirk Jeffrey Lofgren, owner of Ocean Consulting.
626Also, it offered Petitioner's Exhibits 1-4, 6-15, 18, 20, 22-24,
63628, 29, 32, 33, 35, 38, 39, 41, and 44, which were received in
650evidence. The Department presented the testimony of Marsha E.
659Colbert, Biscayne Bay Aquatic Preserve Manager and accepted as
668an expert; Jennifer K. Smith, Environmental Administrator with
676the Southeast District Office and accepted as an expert; and
686James W. Stoutamire, Program Administrator with the Division of
695Water Resource Management and accepted as an expert. Also, it
705offered Department's Exhibits 1-9, 13, 14, 18, and 19, which
715were received in evidence.
719The Transcript of the hearing (three volumes) was filed on
729December 22, 2008. By agreement of the parties, the time for
740filing proposed findings of fact and conclusions of law was
750extended to January 28, 2009. They were timely filed and have
761been considered in the preparation of this Recommended Order.
770FINDINGS OF FACT
773Based on the evidence presented by the parties, the
782following findings of fact are made:
788A. Background
7901. The Department is the agency responsible for
798administering the provisions of Part IV, Chapter 373, Florida
807Statutes, 2 regarding activities in surface waters of the State
817that may or may not require an ERP. Florida Administrative Code
828Rule 40E-4.051(3) authorizes the Department to approve
835exemptions from ERP requirements for the construction of certain
844docking facilities and boat ramps. In addition, the Department
853has authority from the Board of Trustees of the Internal
863Improvement Trust Fund to review and take final agency action on
874Petitioner's requests for proprietary authorizations.
8792. Petitioner is a developer of residential and commercial
888properties. It owns waterfront land on the eastern side of
898Normandy Isle at 25-135 North Shore Drive, Miami Beach, Florida.
908Normandy Isle is surrounded by water, lies just west of Miami
919Beach, and is accessed by the John F. Kennedy Causeway (also
930known as 71st Street or State Road 934), which runs between the
942Cities of Miami and Miami Beach. Normandy Waterway runs in an
953east-west direction through the center of Normandy Isle, while
962Indian Creek appears to generally run in a northwest-southeast
971direction between Normandy Isle and Miami Beach. (Petitioner's
979property is on the northern half of the island.) Both of these
991waterbodies are in the northern portion of the Preserve, a Class
1002III and Outstanding Florida Water. The Preserve is a body of
1013water that stretches the length of Miami-Dade County,
1021essentially from Broward County to Monroe County.
10283. The property adjoins Indian Creek to the east (the long
1039side of the parcel) and Normandy Waterway to the south (the
1050short side of the parcel) and is situated at the intersection of
1062those two waterways. Petitioner is currently developing the
1070property as Privata Townhomes (Privata), a luxury townhome
1078community.
10794. Petitioner holds title to the property and a portion of
1090submerged lands of Indian Creek and Normandy Waterway. The
1099boundaries of the privately-owned submerged lands are accurately
1107depicted in Petitioner's Exhibit 12.
11125. The Privata development comprises a total of forty-
1121three, single-family townhomes in seven buildings. Eighteen
1128townhomes are being constructed as waterfront homes along Indian
1137Creek (buildings 1, 2, and 3). Seven are being constructed as
1148waterfront homes along Normandy Waterway (building 4), while the
1157remaining eighteen townhomes (buildings 5, 6, and 7) are not
1167situated on waterfront property. Each waterfront parcel is
1175approximately eighteen linear feet wide and consists of both
1184upland and private submerged lands. The private submerged lands
1193facing Indian Creek run the entire length of the property and
1204extend approximately ten feet from the shoreline.
12116. On October 1, 2007, Petitioner filed with the
1220Department ten applications for an exemption and letter of
1229consent to construct ten docks (docks 1 through 10) and eighteen
1240boat slips. The proposed docks will be located on the shoreline
1251extending into Indian Creek and the Preserve. Docks 1, 2, 4, 5,
12636, 8, 9, and 10 will serve two slips each, or a total of sixteen
1278slips, while docks 3 and 7 will project outward from one single-
1290family parcel each and will be wholly-owned by that respective
1300single-family parcel owner. All of the docks will be spaced
1310less than sixty-five feet from one another. According to
1319Petitioner, the Department has already given Petitioner
1326authorization to construct three docks for the units in Building
13364 facing Normandy Waterway to the south, and they are not in
1348issue here. The basis for that authorization, and the
1357distinction between those docks and the ones in dispute here,
1367are not of record.
13717. Each of the docks will be built using four pilings with
1383forty square feet of decking. Therefore, each dock will be less
1394than five hundred square feet of surface area over the surface
1405waters. Associated with the docks are eighteen boat slips that
1415will include an additional pile installed approximately thirty
1423feet from the shoreline.
14278. The slips and docks are exclusively for the private use
1438of, and will be owned by, the waterfront townhome owners. The
1449eighteen non-water townhome parcel owners will not have any
1458rights to submerged lands owned in fee simple by the purchasers
1469of the waterfront townhomes or the right to use any slip or
1481dock. This is confirmed by Article II, Section 1 of the
1492Declaration of Covenants, Restrictions and Easements for Privata
1500Town Homes at Miami Beach (Declaration of Covenants).
15089. There have been docks and vessel moorings at the
1518project site for at least forty years. However, the docks do
1529not qualify for automatic grandfathering because a grandfather
1537structure application was never submitted to the Department, as
1546required by Florida Administrative Code Rule 18-21.0081.
155310. After reviewing the applications, the Department
1560issued its Notice of Intent on December 13, 2007, as later
1571amended on September 13, 2008, denying all ten applications.
1580Citing Florida Administrative Code Rule 40E-4.051(3)(b), the
1587Department asserted that "the proposed docks are part of a
1597multi-family living complex and therefore must be a minimum of
160765-ft. apart in order to qualify for the exemption." As to the
1619letter of consent, the Department asserted that based upon the
1629upland development at the site, the proposed docks constituted a
1639private residential multi-family dock or pier, as defined by
1648Florida Administrative Code Rule 18-21.003(44). In addition,
1655the Notice of Intent stated that the proposed docks fell within
1666the definition of a "commercial/industrial dock," as defined in
1675Florida Administrative Code Rule 18-18.004(7), and therefore
1682they required a lease (rather than a letter of consent) in
1693accordance with Florida Administrative Code Rule 18-
170018.006(3)(c). Thus, the Department takes the position that an
1709ERP and a lease are required before the docks may be
1720constructed. The parties have raised no issues regarding
1728riparian rights.
173011. By an amendment to its Notice of Intent issued on
1741September 13, 2008, the Department added as a reason for denying
1752the letter of consent that the docks will cause unacceptable
1762cumulative impacts on the Preserve within the meaning of Florida
1772Administrative Code Rule 18-18.008.
1776B. The Development
177912. Each townhome occupies three stories of vertical,
1787independent space. No unit is situated over any other unit.
1797Each townhome has a separate entrance through its own front
1807door, and each has its own garage.
181413. The townhomes in each building share a single wall.
1824Petitioner stated that this was done because if the units were
1835constructed with a narrow space between them, it would create
1845safety, fire, water moisture, and mold issues. However, there
1854is no cross-access between the units, and there is no
1864penetration (such as common plumbing, fire sprinklers, or
1872electrical conduits) through the load-bearing walls. Even so,
1880the units have various common structural elements such as
1889bearings, bearing walls, columns or walls necessary to support
1898the roof structure, and siding, finish, trim, exterior sheatings
1907(coverings), and other exterior materials.
191214. There is a common area that runs the entire length of
1924shoreline between the buildings and the water. Within the
1933common area there is a seawall, sidewalk, pool, and grassy area
1944that are accessible by any member of the Privata Homeowners'
1954Association (Association).
195615. According to the Declaration of Covenants, the
1964Association is responsible for painting the exteriors of the
1973buildings, including the walls, doors, and windows; maintaining
1981and repairing the docks and seawalls; and maintaining the common
1991areas. Members who own docks will pay a higher fee to the
2003Association than non-waterfront owners to offset the additional
2011costs associated with maintaining and repairing the docks.
201916. Eighteen of the waterfront townhome parcels are
2027currently under purchase and sale agreements. The boat slips
2036were one of the main selling features of the waterfront
2046townhomes. In fact, the sales are contingent on the docks being
2057constructed, and Petitioner concedes that if the docks are not
2067built, the buyers will not be required to close on their
2078contracts. In its Privata marketing brochures, Petitioner
2085refers to "private boat docks" and owners having "a private boat
2096slip right in their own backyard" that is "[a]ble to accommodate
2107vessels up to 40 feet." It is fair to infer from the evidence
2120that the docks were used as a major inducement for customers to
2132purchase the waterfront parcels.
2136C. Exemption from an ERP
214117. Florida Administrative Code Rule 40E-4.051(3)(b)4.
2147provides in relevant part that no permit shall be required for
2158(b) The construction of private docks of
2165. . . 500 square feet or less of surface
2175area over wetlands or other surface waters
2182for docks which are located in Outstanding
2189Florida Waters. . . . To qualify for this
2198exemption, any such structure:
2202* * *
22054. Shall be the sole dock constructed
2212pursuant to this exemption as measured along
2219the shoreline for a minimum distance of 65
2227feet, unless the parcel of land or
2234individual lot as platted is less than 65
2242feet in length along the shoreline, in which
2250case there may be one exempt dock per parcel
2259or lot. For the purposes of this paragraph,
2267multi-family living complexes and other
2272types of complexes or facilities associated
2278with the proposed private dock shall be
2285treated as one parcel of property regardless
2292of the legal division of ownership or
2299control of the associated property . . . .
2308(Emphasis added)
231018. Under the rule, an applicant will not qualify for an
2321exemption from permitting requirements if the upland structure
2329of a project site is a multi-family complex or facility. In
2340those cases, the owner of the project site is allowed to
2351construct one dock per sixty-five feet of shoreline (assuming
2360the size of the dock comports with the rule). The rule
2371specifically provides that the legal division of ownership or
2380control of the property is not relevant in making this
2390determination.
239119. The underscored language in the rule is at the heart
2402of this dispute. The parties sharply disagree over whether the
2412Privata development consists of single-family units or whether
2420it is a multi-family living complex. Although the term "multi-
2430family living complexes and other types of complexes or
2439facilities" is not further defined by the rule, the Department
2449has consistently (with one exception cited below) interpreted
2457this provision to include buildings with so-called "attached
2465townhomes." Because the Privata townhomes share a wall with a
2475neighbor, as well as other common facilities, the Department
2484considers each building on the uplands to "house multiple
2493families." Put another way, multiple families will live in each
2503structure (building). On the other hand, if the units were
2513detached and free-standing, even by a few inches, the Department
2523agrees they would probably fall within the category of
"2532individual, detached, single-family homes."
253620. The greater weight of evidence supports a finding that
2546the upland project is a multi-family living complex. This is
2556because the project has the attributes of a multi-family
2565complex, such as units sharing a common wall, multiple families
2575living in each building, and common areas accessible for each
2585member of the project. While Petitioner points out that each
2595townhome owner has fee simple title to his or her upland parcel
2607and the ten feet of adjoining submerged lands, the rule
2617specifically provides that the division of ownership and control
2626of the property is immaterial to the ultimate determination of
2636whether the property qualifies for an exemption. Given these
2645considerations, it is found that the project does not meet the
2656requirements for an exemption from ERP requirements under
2664Florida Administrative Code Rule 40E-4.051(3)(b)4. 3
2670D. Letter of Consent
267421. A letter of consent is a form of authorization, but
2685does not by itself determine whether a project is approvable or
2696not. 4 In order to qualify for a letter of consent, the docks
2709would first have to be exempt from ERP requirements. As noted
2720in finding of fact 20, they are not. The "18 series rules [in
2733the Florida Administrative Code] are proprietary, essentially,
2740real estate rules" that apply to the use of state owned,
2751submerged lands. (Transcript, page 370). General guidance or
"2759overarching" submerged lands rules are found in Florida
2767Administrative Code Rule Chapter 18-21, while rules specific to
2776the Preserve are found in Florida Administrative Code Rule
2785Chapter 18-18. Both sets of rules apply here.
279322. The dispute over the letter of consent centers on
2803whether the dock is a "private dock" or a "commercial/industrial
2813dock," as those terms are defined by the rules. The former does
2825not require a lease, while the latter does. See Fla. Admin.
2836Code R. 18-18.006 (3)(c)("A commercial/industrial dock on
2844sovereignty lands shall require a lease. Private docks to be
2854constructed and operated on sovereignty lands shall not require
2863a lease of those lands.")
286923. A private dock is defined in Florida Administrative
2878Code Rule 18-18.004(18) as
2882a dock located on or over submerged lands,
2890which is used for private leisure purposes
2897for a single family dwelling unit and does
2905not produce income.
2908On the other hand, a commercial/industrial dock is defined in
2918subsection (7) of the same rule as
2925a dock which is located on or over submerged
2934lands and which is used to produce income,
2942or which serves as an inducement to renting,
2950purchasing, or using accompanying facilities
2955including without limitation multi-family
2959residential facilities. This term shall be
2965construed to include any dock not a private
2973dock.
297424. Therefore, a dock may constitute a commercial/
2982industrial dock if it is associated with a multi-family
2991facility; if it is used as an inducement to rent, purchase, or
3003use accompanying facilities; or if the dock does not constitute
3013a private dock, which is used for a single-family upland
3023facility. The more persuasive evidence here shows that the
3032docks are associated with a multi-family facility; they are used
3042as an inducement to purchase the units; and they are not used
3054for a single-family upland facility. For any one of these
3064reasons, then, the docks must be categorized as commercial/
3073industrial docks.
307525. Although the term "multi-family residential
3081facilities" is not specifically defined in Chapter 18-18,
3089another proprietary rule provides clarification of that term.
3097See Fla. Admin. Code R. 18-21.003(44). That rule defines the
3107term "private residential multi-family dock or pier" as
3115a dock or pier on a common riparian parcel
3124or area that is intended to be used for
3133private recreational or leisure purposes by
3139persons or groups of persons with real
3146property interest in a multi-family
3151residential dwelling such as a duplex, a
3158condominium, or attached single-family
3162residences or a residential development such
3168as a residential or mobile home subdivision.
3175(emphasis added)
3177As noted earlier, both Chapters 18-18 and 18-21 should be read
3188in conjunction with each other. When doing so, it is found that
3200the proposed docks are associated with "attached single-family
3208residences" (by virtue of sharing a common wall) and fall within
3219the definition of a commercial/industrial dock. Therefore, they
3227do not qualify for a letter of consent.
3235E. Cumulative Impacts
323826. The waterbody in issue here is an Aquatic Preserve,
3248that is, "an exceptional area of submerged lands and its
3258associated waters set aside for being maintained essentially in
3267its natural or existing condition." § 258.37(1), Fla. Stat.
3276The Legislature intended for the submerged lands and associated
3285waters to be maintained "in an essentially natural condition so
3295that its biological and aesthetic values may endure for the
3305enjoyment of future generations." § 258.397(1), Fla. Stat.
3313See also Fla. Admin. Code R. 18-18.001(1). "Essentially natural
3322condition" is defined as "those conditions which support the
3331continued existence or encourage the restoration of the diverse
3340population of indigenous life forms and habitats to the extent
3350they existed prior to the significant development adjacent to
3359and within the preserve." Fla. Admin. Code R. 18-18.004(10).
336827. In determining whether a letter of consent for new
3378docks and piers in the Preserve should be approved, Florida
3388Administrative Code Rule 18-18.008 requires that the Department
3396consider the cumulative impacts of those projects. The burden
3405rests on the applicant to provide reasonable assurances that the
3415project will not cause adverse cumulative impacts upon the
3424natural systems. In meeting this stringent test, the rule
3433recognizes that "while a particular alteration of the preserve
3442may constitute a minor change, the cumulative effect of numerous
3452such changes often results in major impairments to the resources
3462of the preserve." The rule goes on to identify five factors
3473that the Department must consider as a part of its cumulative
3484impact evaluation. In this case, the Department considered "the
3493number and extent of similar human actions within the preserve
3503which have previously affected or are likely to affect the
3513preserve"; the "similar activities within the preserve which are
3522currently under consideration by the Department"; and the
"3530[d]irect and indirect effects upon the preserve which may
3539reasonably be expected to result from the activity." See Fla.
3549Admin. Code R. 18-18.008(1), (2), and (3). The fact that the
3560Department discussed only the first three considerations, rather
3568than all five, in its Amended Notice of Intent does not render
3580its evaluation improper or incomplete, as suggested by
3588Petitioner. 5
359028. If authorized, the project will allow eighteen boats
3599to dock at Privata along Indian Creek. Although the marketing
3609brochures indicate that boats up to forty feet in length will
3620use the slips, the evidence at hearing indicates that they will
3631be no more than twenty-five feet in length. The project adheres
3642to best management practices. Also, the number of docks was
3652limited by means of dock-sharing for eight of the ten docks.
3663The docks are designed so that boats will be moored parallel to
3675the shoreline rather than horizontal to the seawall; the docks
3685will be over six feet above mean high water; and the docks will
3698be constructed from materials designed to minimize environmental
3706impacts.
370729. As noted above, the Preserve extends from Broward
3716County to Monroe County. Within the Preserve, there are
3725literally thousands of docks, including single docks,
3732multifamily docks, and commercial and industrial marinas.
3739Closer to the Privata project, there are docks, boat lifts,
3749cranes, davits (small cranes used for boats, anchors, or cargo),
3759and marinas located on both sides of Indian Creek. The
3769development along Indian Creek and Normandy Waterway includes
3777commercial, multifamily, and single-family docks. Due to heavy
3785boat traffic and extensive development around Indian Creek, it
3794is fair to say that the project is in a high turbidity area.
380730. Besides the applications here, there are "several"
3815other applications now pending before the Department for docks,
3824piers, and slips within the Preserve. Two in-water
3832environmental resource surveys by the Department revealed that
3840resources such as paddle grass, Johnson's grass (a threatened
3849species), shoal grass, turtle grass, manatee grass, soft coral,
3858sponge, oysters, and sea urchins are present in the immediate
3868area. However, it is fair to infer that these marine resources
3879have adapted to the existing conditions and are able to
3889withstand the stress created by the heavy usage.
389731. The evidence is sharply in dispute over whether the
3907project is reasonably expected to have direct or indirect
3916adverse impacts on the natural systems of the Preserve.
3925Petitioner contends that because a small number of docks and
3935slips are being proposed, best management practices will be used
3945in constructing the docks and slips, the area around Indian
3955Creek is already heavily developed, and the natural resources in
3965Indian Creek appear to have adapted to the stress created by the
3977other activities, the effect on the Preserve's natural systems
3986will be de minimus .
399132. There are literally thousands of similar activities
3999and human actions that have already affected the Preserve and
4009are reasonably expected to continue in the future. Other
4018applications to engage in similar activities are now pending,
4027and it is reasonable to assume that others will be filed. The
4039natural resources in the immediate area are diverse, as
4048described by the Department witnesses, including at least one
4057threatened species. There will be direct and indirect impacts
4066that are reasonably expected to occur from the docks and mooring
4077areas such as increased shading and decreased water quality.
4086When the impacts of the Privata project are viewed in isolation,
4097they can be considered "a minor change." However, the
4106cumulative effect of this and other changes can result in
4116adverse impacts to the natural systems. Fla. Admin. Code R. 18-
412718.008. The more credible evidence supports a finding that the
4137proposed activities will cause direct and indirect adverse
4145impacts on the Preserve's natural systems, so that the submerged
4155lands and associated waters will not be maintained "essentially
4164in [their] natural or existing condition." Fla. Admin. Code R.
417418-18.001(1). Therefore, in this respect, the requirement of
4182the rule has not been met.
4188F. Other Projects in the Preserve
419433. Petitioner points out that in June 2001, as later
4204modified in April 2002, another project in the Preserve known as
4215Aqua at Allison Island was given an exemption to construct
4225fifteen single-family docks, nine of which were intended for
4234private use and six to serve as shared structures for adjacent
4245property owners. See Petitioner's Exhibits 28 and 29. The
4254project site lies just south of Normandy Isle on Allison Island,
4265which adjoins Indian Creek and involved a similar upland
4274development of attached townhomes. While the Department
4281concedes that this action occurred, no other project of this
4291nature has ever been granted an exemption or letter of consent
4302to construct docks and use state-owned submerged lands within
4311the Preserve. The Department further explained that it "made an
4321error" when it granted an exemption for the project at Aqua at
4333Allison Island, and that with this single exception, it has
4343consistently denied all similar applications.
4348CONCLUSIONS OF LAW
435134. The Division of Administrative Hearings has
4358jurisdiction over this matter pursuant to Sections 120.569 and
4367120.57(1), Florida Statutes.
437035. The burden of proof is on the party asserting the
4381affirmative of an issue before an administrative tribunal. See ,
4390e.g. , Balino v. Department of Health & Rehabilitative Servs. ,
4399348 So. 2d 349, 350 (Fla. 1st DCA 1977). Therefore, Petitioner
4410has the burden of proving by a preponderance of the evidence
4421that the proposed activity is exempt from Department permitting
4430requirements and that it is entitled to a letter of consent.
444136. The issue here is whether Petitioner qualifies for an
4451exemption from ERP requirements and a letter of consent. More
4461specifically, the question to be decided is whether the Privata
4471townhomes can be characterized as single-family units or as a
4481part of a multi-family complex. Apparently, this issue has
4490never been litigated since neither party, nor the undersigned,
4499has found any final order or appellate decision on the subject.
451037. Florida Administrative Code Rule 40E-4.051(3)(b)4.
4516provides in relevant part that no permit shall be required for
4527the following type of docking facility:
4533(b) The installation or repair of private
4540docks . . . 500 square feet or less of
4550surface area over wetlands or other surface
4557waters for docks which are located in
4564Outstanding Florida Waters. . . . To qualify
4572for this exemption, any such structure:
4578* * *
45814. Shall be the sole dock constructed
4588pursuant to this exemption as measured along
4595shoreline for a minimum distance of 65 feet,
4603unless the parcel of land or individual lot
4611as platted is less than 65 feet in length
4620along the shoreline, in which case there may
4628be one exempt dock allowed per parcel or lot.
4637For the purposes of this paragraph, multi-
4644family living complexes and other types of
4651complexes or facilities associated with the
4657proposed private dock shall be treated as one
4665parcel of property regardless of the legal
4672division of ownership or control of the
4679associated property. . . . .
4685See also § 403.813(2)(b), Fla. Stat.
469138. For the reasons given in Findings of Fact 12-20, the
4702more persuasive evidence establishes that the private docks are
4711associated with upland "multi-family living complexes," and are
4719less than 65 feet apart; therefore, the project does not meet
4730the requirements of the rule and cannot qualify for an exemption
4741from ERP requirements. The fact that each unit owner has fee
4752simple title to his or her respective parcel and the adjacent
4763submerged lands is immaterial to this conclusion.
477039. To qualify for a letter of consent, the docks must
4781first qualify for an exemption from ERP requirements. For the
4791reasons previously found, they are not exempt. Moreover, the
4800more persuasive evidence establishes that for three reasons, the
4809docks fall within the category of a commercial/industrial dock,
4818rather than a private dock, and therefore require a lease. See
4829Findings of Fact 21-25. Finally, Petitioner failed to show that
4839the project will not cause unacceptable cumulative impacts. See
4848Findings of Fact 26-32.
485240. Because the docks do not qualify for an exemption from
4863ERP requirements, and they constitute commercial/industrial
4869docks, the ten applications must accordingly be denied.
4877RECOMMENDATION
4878Based on the foregoing Findings of Fact and Conclusions of
4888Law, it is
4891RECOMMENDED that the Department of Environmental Protection
4898enter a final order denying Petitioner's ten applications for an
4908exemption from ERP requirements and a letter of consent to use
4919sovereign submerged lands to construct ten docks and associated
4928slips on Indian Creek in Miami Beach, Florida.
4936DONE AND ENTERED this 2nd day of March, 2009, in
4946Tallahassee, Leon County, Florida.
4950S
4951DONALD R. ALEXANDER
4954Administrative Law Judge
4957Division of Administrative Hearings
4961The DeSoto Building
49641230 Apalachee Parkway
4967Tallahassee, Florida 32399-3060
4970(850) 488-9675
4972Fax Filing (850) 921-6847
4976www.doah.state.fl.us
4977Filed with the Clerk of the
4983Division of Administrative Hearings
4987this 2nd day of March, 2009.
4993ENDNOTES
49941/ Petitioner filed ten applications. However, the Notice of
5003Intent only referred to nine applications. This omission was
5012later cured in an amendment to the original Notice of Intent
5023issued on September 13, 2008.
50282/ All statutory citations are in the 2008 version of the
5039Florida Statutes.
50413/ The fact that the City of Miami Beach has treated the
5053townhomes as single-family homes under its land development
5061regulations is immaterial to this finding. See Escambia County
5070vans Pac, et al. , 584 So. 2d 603, 605 (Fla. 1st DCA 1991)(a
5083state permit enforces a minimum standard to protect the state's
5093interests regardless of local decisions about the same project).
51024/ A letter of consent is defined as a "nonpossessory interest
5113in sovereignty submerged lands created by an approval which
5122allows the applicant the right to erect specific structures or
5132conduct specific activities on said lands." Fla. Admin. Code R.
514218-21.003(30).
51435/ Paragraph (4) of the rule requires that the Department
5153evaluate "the extent to which the activity is consistent with
5163management plans for the preserve when developed." There is,
5172however, no established "management plan" for the Preserve and
5181therefore no such evaluation was required. Paragraph (5)
5189requires that the Department evaluate "the extent to which the
5199activity is permissible within the preserve in accordance with
5208comprehensive plans adopted by affected local governments." In
5216this case, the Department did not allege any inconsistency with
5226local government comprehensive plans.
5230COPIES FURNISHED:
5232Lea Crandall, Agency Clerk
5236Department of Environmental Protection
52403900 Commonwealth Boulevard
5243Mail Station 35
5246Tallahassee, Florida 32399-3000
5249Daniel L. Abbott, Esquire
5253Weiss, Serota, Helfman, Pastoriza,
5257Cole & Boniske, P.L.
5261200 East Broward Boulevard, Suite 1900
5267Fort Lauderdale, Florida 33301-1949
5271John J. Quick, Esquire
5275Weiss, Serota, Helfman, Pastoriza,
5279Cole & Boniske, P.L.
52832525 Ponce de Leon Boulevard, Suite 700
5290Coral Gables, Florida 33134-6045
5294Brynna J. Ross, Esquire
5298Department of Environmental Protection
53023900 Commonwealth Boulevard
5305Mail Station 35
5308Tallahassee, Florida 32399-3000
5311Thomas M. Beason, General Counsel
5316Department of Environmental Protection
53203900 Commonwealth Boulevard
5323Mail Station 35
5326Tallahassee, Florida 32399-3000
5329NOTICE OF RIGHT TO FILE EXCEPTIONS
5335All parties have the right to submit written exceptions within
534515 days of the date of this Recommended Order. Any exceptions
5356to this Recommended Order should be filed with the agency that
5367will render a final order in this matter.
- Date
- Proceedings
- PDF:
- Date: 04/29/2009
- Proceedings: Department of Environmental Protection`s Response to Petitioner's Exceptions to Recommended Order filed.
- PDF:
- Date: 03/02/2009
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 03/02/2009
- Proceedings: Recommended Order (hearing held December 3-4, 2008). CASE CLOSED.
- PDF:
- Date: 01/28/2009
- Proceedings: Department of Environmental Protection`s Proposed Recommended Order filed.
- PDF:
- Date: 01/09/2009
- Proceedings: Unopposed Motion for Extension of Time to File Proposed Recommended Orders filed.
- Date: 12/22/2008
- Proceedings: Transcript (Volumes 1-3) filed.
- Date: 12/09/2008
- Proceedings: Department`s Exhibit No. 1 (exhibit not available for viewing) filed.
- PDF:
- Date: 12/05/2008
- Proceedings: Normandy Shores Exhibits: Table of Contents (exhibits not available for viewing) filed.
- Date: 12/03/2008
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 12/03/2008
- Proceedings: Notice of Supplemental Exhibit List to Joint Pre-hearing Stipulation filed.
- PDF:
- Date: 12/01/2008
- Proceedings: Notice of Filing Petitioner`s Response to Department`s First Set of Interrogatories filed.
- PDF:
- Date: 11/24/2008
- Proceedings: Consolidated Notice of Denial Exemption and Letter of Consent to Use Soverign Submerged Lands filed.
- PDF:
- Date: 11/14/2008
- Proceedings: Notice of Respondent DEP`s Response to Petitioner Normandy Shores, LLC First Set of Interrogatories filed.
- PDF:
- Date: 11/14/2008
- Proceedings: Respondent Department of Environmental Protection`s Response to Petitioner`s First Request for Production of Documents filed.
- PDF:
- Date: 11/10/2008
- Proceedings: Order (Respondent Department of Environmental Protection`s Request for Extension of Time to Respond to Petitioner`s Interrogatories and Request for Production of Documents is granted, responses shall be filed by November 14, 2008).
- PDF:
- Date: 11/06/2008
- Proceedings: Agreed Order Granting Respondent`s Request for Extension of Time to Respond to Petitioner`s Interrogatories and Request for Production filed.
- PDF:
- Date: 11/05/2008
- Proceedings: Respondent Department of Environmental Protection`s Request for Extension of Time to Respond to Petitioner`s Interrogatories and Request for Production of Documents filed.
- PDF:
- Date: 11/03/2008
- Proceedings: Re-notice of Taking Deposition Duces Tecum (of J. Stoutamire) filed.
- PDF:
- Date: 10/31/2008
- Proceedings: Respondent Department of Environmental Protection`s Notice of Taking Deposition Duces Tecum (of B. May) filed.
- PDF:
- Date: 10/27/2008
- Proceedings: Department of Environmental Protection`s Notice of Taking Deposition Pursuant to Fla. Rule Civ. P. 1.310(b)(6) filed.
- PDF:
- Date: 10/13/2008
- Proceedings: Respondent Department of Environmental Protection`s Notice of Taking Deposition Duces Tecum (of L. Jones) filed.
- PDF:
- Date: 10/13/2008
- Proceedings: Respondent Department of Environmental Protection`s Notice of Taking Deposition Duces Tecum (of K. Lofgren) filed.
- PDF:
- Date: 10/13/2008
- Proceedings: Respondent Department of Environmental Protection`s Notice of Taking Deposition Duces Tecum (of B. Cokos) filed.
- PDF:
- Date: 10/13/2008
- Proceedings: Respondent Department of Environmental Protection`s Notice of Taking Deposition Duces Tecum (of J. Jones) filed.
- PDF:
- Date: 10/08/2008
- Proceedings: Notice of Taking Deposition Duces Tecum (of J. Stoutamire) filed.
- PDF:
- Date: 09/10/2008
- Proceedings: Respondent Department of Environmental Protection`s Notice of Amendment to Consolidated Notice of Denial filed.
- PDF:
- Date: 09/05/2008
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for December 3 and 4, 2008; 9:00 a.m.; Miami, FL).
- PDF:
- Date: 08/25/2008
- Proceedings: Notice of Unavailability for Respondent Department of Environmental Protection filed.
- PDF:
- Date: 06/05/2008
- Proceedings: Petitioner`s Privilege Log in Response to Respondent`s Frst Request for Production, No. 5 filed.
- PDF:
- Date: 05/16/2008
- Proceedings: Petitioner`s Response to Respondent`s First Request for Production filed.
- PDF:
- Date: 05/15/2008
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for September 15 and 16, 2008; 9:00 a.m.; Miami, FL).
- PDF:
- Date: 05/14/2008
- Proceedings: Respondent Department of Environmental Protection`s Unopposed Request to Re-schedule Administrative Hearing filed.
- PDF:
- Date: 05/14/2008
- Proceedings: Respondent Department of Environmental Protection`s Unopposed Request to Re-schedule Administrative Hearing filed.
- PDF:
- Date: 05/01/2008
- Proceedings: Notice of Serving Answers to Respondent`s First Set of Interrogatories filed.
- PDF:
- Date: 04/18/2008
- Proceedings: Notice of Unavailability for Department of Environmental Protection filed.
- PDF:
- Date: 02/27/2008
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for July 1 and 2, 2008; 9:00 a.m.; Miami, FL).
- PDF:
- Date: 02/26/2008
- Proceedings: Petitioner`s Unopposed Motion to Reset Administrative Hearing filed.
- PDF:
- Date: 02/12/2008
- Proceedings: Notice and Certificate of Service of Respondent DEP`s First Set of Interrogatories to Petitioner Normandy Shores, LLC filed.
- PDF:
- Date: 02/08/2008
- Proceedings: Respondent Department of Environmental Protection`s First Request for Production of Documents to Petitioner Normandy Shores, LLC filed.
- PDF:
- Date: 01/31/2008
- Proceedings: Order (B. Ross is authorized to appear as qualified representative).
- PDF:
- Date: 01/30/2008
- Proceedings: Amended Notice of Hearing (hearing set for March 25 and 26, 2008; 9:00 a.m.; Miami, FL; amended as to dates and location of hearing).
- PDF:
- Date: 01/25/2008
- Proceedings: Notice of Hearing (hearing set for March 25, 2008; 9:00 a.m.; Miami, FL).
- PDF:
- Date: 01/23/2008
- Proceedings: Department of Environmental Protection`s Response to Initial Order filed.
- PDF:
- Date: 01/11/2008
- Proceedings: Consolidated Notice of Denial Exemption and Letter of Consent to Use Sovereign Submerged Lands filed.
Case Information
- Judge:
- D. R. ALEXANDER
- Date Filed:
- 01/11/2008
- Date Assignment:
- 01/14/2008
- Last Docket Entry:
- 04/29/2009
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
Counsels
-
John J Quick, Esquire
Address of Record -
Brynna J. Ross, Esquire
Address of Record -
Kelly K. Samek, Esquire
Address of Record -
Laura K. Wendell, Esquire
Address of Record -
John J. Quick, Esquire
Address of Record -
Laura K Wendell, Esquire
Address of Record