08-000217 Normandy Shores, Llc vs. Department Of Environmental Protection
 Status: Closed
Recommended Order on Monday, March 2, 2009.


View Dockets  
Summary: Because of the proposed docks/slips were associated with an upland multi-family living complex, project was not exempt from an environmental resource permit requirements or entitled to a letter of consent.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/29/2009
Proceedings: Agency Final Order
PDF:
Date: 04/29/2009
Proceedings: Final Order filed.
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
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: Petitioner`s Proposed Recommended Order filed.
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.
PDF:
Date: 01/09/2009
Proceedings: Notice of Appearance (filed by L. Wendell).
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: 12/08/2008
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 12/08/2008
Proceedings: Undeliverable envelope returned from the Post Office.
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: 12/02/2008
Proceedings: Order (Motion to Quash is granted).
PDF:
Date: 12/01/2008
Proceedings: Motion to Quash filed.
PDF:
Date: 12/01/2008
Proceedings: Notice of Filing Petitioner`s Response to Department`s First Set of Interrogatories filed.
PDF:
Date: 11/26/2008
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 11/24/2008
Proceedings: Consolidated Notice of Denial Exemption and Letter of Consent to Use Soverign Submerged Lands filed.
PDF:
Date: 11/21/2008
Proceedings: Undeliverable envelope returned from the Post Office.
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: 11/14/2008
Proceedings: Petitioner`s Request for Copies 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: 11/03/2008
Proceedings: Re-notice of Taking Deposition Duces Tecum (of C. Stahl) 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: 10/09/2008
Proceedings: Notice of Taking Deposition Duces Tecum (of M. Colbert) filed.
PDF:
Date: 10/09/2008
Proceedings: Notice of Taking Deposition Duces Tecum (of J. Smith) filed.
PDF:
Date: 10/08/2008
Proceedings: Notice of Taking Deposition Duces Tecum (of C. Stahl) filed.
PDF:
Date: 10/08/2008
Proceedings: Notice of Taking Deposition Duces Tecum (of R. Maddox) filed.
PDF:
Date: 10/08/2008
Proceedings: Notice of Taking Deposition Duces Tecum (of J. Stoutamire) filed.
PDF:
Date: 10/06/2008
Proceedings: First Request for Production to Respondent filed.
PDF:
Date: 10/06/2008
Proceedings: Notice of Serving First Set of Interrogatories 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: 08/22/2008
Proceedings: Joint Request to Reschedule Administrative Hearing filed.
PDF:
Date: 08/11/2008
Proceedings: Notice of Appearance as Co-counsel (filed by K. Samek).
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: Order of Pre-hearing Instructions.
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: 01/14/2008
Proceedings: Initial Order.
PDF:
Date: 01/11/2008
Proceedings: Affidavit of Brynna J. Ross filed.
PDF:
Date: 01/11/2008
Proceedings: Request for Representation by Qualified Representative filed.
PDF:
Date: 01/11/2008
Proceedings: Consolidated Notice of Denial Exemption and Letter of Consent to Use Sovereign Submerged Lands filed.
PDF:
Date: 01/11/2008
Proceedings: Petition of Normandy Shores, LLC for Formal Administrative Hearing filed.
PDF:
Date: 01/11/2008
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record 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

Related DOAH Cases(s) (1):

Related Florida Statute(s) (5):

Related Florida Rule(s) (7):