13-000515 Gary Pirtle vs. Roy D. Voss And Department Of Environmental Protection Status: Closed Recommended Order on Friday, September 27, 2013.

Summary: The Respondent's installation of mooring pilings did not qualify for an exemption under section 373.406(6), Florida Statutes, or consent by rule under Florida Administrative Code Rule 18-21.005(1)(b), because the pilings created a navigational hazard.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY PIRTLE ,

Petitioner ,

vs. Case No. 13 - 0515

ROY D. VOSS AND DEPARTMENT OF

ENVIRONMENTAL PROTECTION ,

Respondents .

/

RECOMMENDED ORDER

The final he aring in this case was held on August 1 and 2,

2013, by video conference at sites in Port St. Lucie and

Tallahassee, Florida, before Bram D.E. Canter, an Administrative

Law Judge of the Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitio ner: Andrew J. Baumann, Esquire

Tara W. Duhy, Esquire

Lewis, Longman & Walker, P.A.

515 N orth Flagler Drive, Suite 1500

West Palm Beach, Florida 33401 - 4321

For Respondent Department of Environmental Protection:

Brynna J. Ross, Esquire

Benja min M. Melnick, Esquire

Office of General Counsel

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Respondent Roy D. Voss:

Joanne M. Foster, Esquire

Guy , Yudin & Foster, LLP

55 East Ocean Boulevard

Stuart, Florida 34994 - 2214

STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent Roy Voss

is entitled to an exemption from the requirement to obtain an

Environmental Resource Permit (ÐERPÑ) and entitled to Ðconsent by

ruleÑ to use sovereignt y submerged lands to install five mooring

pilings next to his existing dock in Stuart, Florida.

PRELIMINARY STATEMENT

On October 25, 2012, the Department of Environmental

Protection (ÐDepartmentÑ) issued a letter determining the VossÓs

proposal to install five mooring pilings was exempt from the

requirement to obtain an ERP and qualified for consent by rule to

use sovereignty submerged lands (Ðthe authorizationsÑ). On

December 20, 2012, Pirtle filed a petition for hearing to

challenge the authorizations.

O n July 23, 2013, the Department filed a Notice Clarifying

Agency Position, wherein it stated that it had changed its

position. Its new position is that Voss is not entitled to the

authorizations.

At the final hearing, Joint Exhibits J - 1 through J - 8 were

a dmitted into evidence. Petitioner presented his own testimony

and the testimony of Danna Small. PetitionerÓs Exhibit 7 was

admitted into evidence. The Department presented the testimony

of Jason Storrs, John Renfranz, and Jason Andreotta. Respondent

Vo ss presented his own testimony and the testimony of

Dane Fleming. Respondent ' s Exhibit 2 was admitted into evidence.

The two - volume Transcript of the final hearing was filed

with DOAH. The parties submitted proposed recommended orders

that were considere d in the preparation of this Recommended

Order.

FINDINGS OF FACT

The Parties

1. Petitioner Pirtle is the owner of real property located

at 4622 Southeast Boatyard Drive, Stuart, Florida. The property

includes a dock that has been operating as a commerci al marina

for over 20 years.

2. Respondent Voss is the recipient of the authorizations

which are challenged by Petitioner. Voss owns the real property

located at 4632 Southeast Boatyard Drive, Stuart, Florida, which

is located immediately south of Petiti onerÓs property. Voss has

a private dock.

3. The Pirtle and Voss properties are riparian lots on

Manatee Pocket, which connects to the St. Lucie River. Both lots

have 50 feet of waterfront.

4. The Department is the state agency with the power and

duty to regulate construction activities in waters of the state

pursuant to chapter 373, Florida Statutes. The Department also

serves as staff to the Board of Trustees of the Internal

Improvement Trust Fund (ÐBoard of TrusteesÑ) to review and act on

certain co nstruction activities on state sovereignty submerged

lands under chapter 253.

The Pirtle and Voss Docks

5. The Pirtle dock is 101 feet long and is T - shaped.

6. The Pirtle marina operates under a 1991 sovereignty

submerged land lease issued by the Board o f Trustees. The lease

authorizes up to ten boat slips within the leased area.

7. Pirtle has five boat slips on the south side of his

dock, which are configured so that boats are moored perpendicular

to the dock, usually with their bows pointed toward the Voss

dock.

8. The Voss dock is 120 feet long and has an L - shaped

waterward end. The ÐLÑ extends to the south, away from the

Pirtle dock.

9. The Voss dock was built sometime after the Pirtle dock.

10. Voss has moored several boats at his dock, includin g a

26 - foot Grady White with an 8.5 - foot beam, a 38 - foot boat with a

15 - foot beam, and a 42 - foot boat a 15 - foot beam. The 38 - foot and

42 - foot boats have each been moored along the north side of the

Voss dock (nearest the Pirtle dock) in the past.

11. The parties did not dispute the location of an

imaginary Ðriparian lineÑ running parallel to and generally

equidistant between the Pirtle and Voss docks.

12. Before Voss installed the five pilings which are the

subject of this case, boats maneuvering into or out of the slips

that are on the south side of the Pirtle dock (Ðthe south slipsÑ)

often crossed over the riparian line.

The Mooring Pilings

13. On August 29, 2012, Voss applied for the authorizations

to install five mooring pilings spaced 20 feet apart on the north

side of and parallel to his dock.

14. Voss said he intended to use the pilings to moor a new

38 - foot boat with a 15 - foot beam. Voss could use three pilings

to moor a 38 - foot boat. The mooring pilings are also farther

from Voss's dock than n eeded to moor a boat with a 15 - foot beam.

15. Voss originally proposed to install the pilings on the

riparian line. The Department reviewed the proposal and asked

Voss to set the pilings back about three feet farther away from

the Pirtle dock.

16. The D epartment issued the authorizations to Voss on

October 25, 2012, and he installed the five mooring pilings where

the Department directed him to, about three feet inside the

riparian line and 20 feet from his dock.

17. The closest distance between the T - sh aped end of the

Pirtle dock and the nearest mooring piling is about 8.5 feet.

Therefore, only boats with a beam (maximum width) less than 8.5

feet can pass this point when attempting to maneuver into or out

of the south slips.

18. Pirtle found out about the Voss pilings early in

December 2012. He filed his petition for hearing with the

Department on December 20, 2012. The timeliness of the petition

was not disputed.

19. The authorizations were issued by the Department

without first conducting a site in spection to determine what

effect the mooring pilings would have on the ability of boats to

maneuver into and out of PirtleÓs south slips. After Pirtle

filed his petition, four Department employees went to the site in

a 21.5 - foot boat with a beam of about 7.8 feet. The pilot of the

boat, Jason Storrs, had difficulty maneuvering into and out of

PirtleÓs south slips and had to be assisted by the other

Department employees who stood in the boat and pushed off from

the pilings. Without their assistance, the boat would have

bumped into the pilings.

20. An inexperienced boater would have greater difficulty

attempting to enter or leave one of the south slips.

21. It would be more difficult to maneuver a boat in or out

of one of the south slips if Voss had a bo at moored along the

pilings.

22. In windy and choppy water conditions, a person

attempting to maneuver a boat into one of the south slips would

risk damage to the boat and possible injury.

23. The proximity of the mooring pilings to the slips on

the sout h side of the Pirtle dock creates an unsafe condition.

24. It is the practice of the Department to treat boating

conditions that create a potential for damage to boats and injury

to boaters as a Ðnavigational hazard.Ñ

25. Voss's mooring pilings create a navigational hazard.

2 6 . The difficult and unsafe situation created by the

mooring pilings would be obvious to boat owners considering

whether to lease one of the south slips at the Pirtle marina.

The south slips would be unattractive to potential custom ers of

the marina. PirtleÓs ability to operate the south side of his

marina is substantially impaired by Voss's pilings.

CONCLUSIONS OF LAW

2 7 . This is a de novo proceeding to formulate final agency

action, not to review action taken preliminarily. See Capeletti

Bros. v. Dep ' t of Gen. Servs. , 432 So. 2d 1359, 1363 - 64 (Fla. 1st

DCA 198 3).

2 8 . PirtleÓs standing was not disputed. Pirtle has a

substantial interest in the safe operation of boats into and out

of his marina. Pirtle is affected by the authorizations and has

standing to initiate this proceeding.

Burden of Proof and Standard of Proof

2 9 . Section 120.569(2)(p) places the burden of ultimate

persuasion on the person challenging a permit or license issued

under cha pter 373 or 403. Voss argues that no permit was

required for the installation of mooring pilings, based on the

statutory exception in section 403.813(1)(b) and, therefore,

section 120.569(2)(p) i s inapplicable.

30 . In its October 25, 2012 letter to Voss, the Department

refers to Voss's ÐapplicationÑ and states that the determination

the proposed mooring pilings are exempt was made under section

373.406(6). That section requires a written request for a

Department determination that proposed activities are exempt from

permitting and advises the applicant that the activities shall

not be commenced without the written determination of exemption.

Voss did not refute the DepartmentÓs description of the

procedures that were followed. The DepartmentÓs written

d etermination is a license issued under chapter 373 and subject

to section 120.569(2)(p). Therefore, Pirtle has the burden of

ultimate persuasion that Voss is not entitled to the exemption.

3 1 . The consent to use sovereignty submerged lands is an

authoriz ation issued under chapter 253. Such authorizations are

not subject to section 120.569(2)(p). Voss bears the burden of

ultimate persuasion to demonstrate his entitlement to this

authorization. See Fla. Dep't of Transp. v. J.W.C. Co., Inc. ,

396 So. 2 d 77 8 (Fla. 1st DCA 1981).

3 2 . The standard of proof is preponderance of the evidence.

See § 120.57(1), Fla. Stat.

The Exemption

3 3 . Section 373.406(6), the so - called Ðde minimus

exemption,Ñ exempts from permitting activities Ðthat will have

only minimal or insignificant adverse impacts on the water

resources.Ñ Pirtle proved by a preponderance of the evidence

that the mooring pilings adversely impact navigation and the

impact is neither minimal nor insignificant. Therefore, the

pilings do not qualify for t he exemption under section

373.406(6) .

Consent by Rule

3 4 . The October 25, 2012 , letter to Voss contains

statements that appear to contradict each other:

[T]he project qualifies for consent by rule

to use sovereignty submerged lands.

The refore, pursuant to Chapter [sic] 253.77,

Florida Statutes, you may consider this

letter authorization from the Board of

Trustees to perform the project.

It appears contradictory for the Department to acknowledge that

VossÓs mooring pilings qualify for co nsent by rule, but also

state that the letter is his authorization to proceed, because

consent by rule is for activities for which Ðno application or

written authorization is required.Ñ See Fla. Admin. Code R.

18 - 21.005(1)(b).

3 5 . This issue has no co nsequence to the question whether

Pirtle has a point of entry to challenge the DepartmentÓs

determination that Voss's activities are exempt from permitting .

Even though an agency may not be required to determine whether a

project is exempt under a statute or rule, when the agency makes

such a determination, it is agency action and is subject to

challenge by affected persons. See Friends of the Hatchineha,

Inc. v. DepÓt of Env tl. Reg. , 580 So. 2d 267 (Fla. 1st DCA 1991).

3 6 . Rule 18 - 21.004(7) states that all authorizations,

whether granted by rule or in writing, shall be subject to

certain general conditions, including a prohibition against

structures that create a navigational hazard. See Fla. Admin.

Code R. 18 - 21.004(7)(g).

3 7 . The term Ðnavigational h azardÑ is not defined. Voss

argues that Ðnavigational hazardÑ should apply only to conditions

in or near a navigation channel and not to conditions that affect

maneuvering around docks and boat slips. To the extent an

agencyÓs rule is based on an interpr etation of a statute the

agency administers, broad discretion and deference is accorded

the agencyÓs interpretation and it should be upheld when it is

within the range of permissible interpretations. See Bd. o f

Podiatric Med. v . Fla. Med. AssÓn , 779 So. 2 d 658, 660 (Fla. 1st

DCA 2001). Similarly, an agencyÓs interpretation of its own

rules is afforded deference and will not be disturbed unless it

is clearly arbitrary, capricious, or beyond the scope of its

authority. Falk v. Beard , 614 So. 2d 1086, 1089 (Fla. 1983) .

The DepartmentÓs interpretation of the term Ðnavigational hazardÑ

to include unsafe conditions adjacent to docks and boat slips is

a reasonable one and, therefore, will not be disturbed.

3 8 . Voss's mooring pilings do not qua lify for a consent by

rule because they create a navigational hazard.

3 9 . The general conditions set forth in rule 18 - 21.004(7)

also include a prohibition against structures that unreasonably

interfere with riparian rights. See Fla. Admin. Code R. 18 -

21. 004(7)(f). Riparian rights are legal rights incident to lands

bounded by navigable waters and are derived from common law. 1 /

Appurtenant to their ownership of waterfront property, the

riparian owner enjoys a right to an unobstructed view across the

water and a superior right to access the water from his property.

See Bd . of Trs . of the Int . Imp . Trust Fund v. Sand Key Assocs.,

Ltd. , 512 So. 2d 934 (Fla. 1987). The riparian landowner also

has the right to erect wharves, piers , or docks t o facilitate

access to navigable water from his riparian property. See Ferry

Pass Inspectors' & ShippersÓ AssÓn v. Whites River InspectorsÓ &

ShippersÓ AssÓn , 48 So. 643 (Fla. 1909) . This is a qualified

right, inferior to the right of th e public to navigate on the

waterbody. Id.

40 . A riparian landownerÓs uses of the waterfront are

subject to the reasonable uses of adjoining riparian landowners.

When resolving disputes between them, the courts have aimed at

giving each riparian landowner a fair and reasonable opportunity

to access the channel. See e.g. , Johnson v. McCowen , 348 So. 2d

357 (Fla. 1st DCA 1977) .

4 1 . F ive facts established by a preponderance of the

evidenc e support a conclusion that Voss's mooring pilings

unreasonably interfere with PirtleÓs riparian rights: (1) The

Pirtle marina has been operating for many years in its current

configuration; (2) Voss moored boats on the north side of his

dock in the past without using mooring pilings; (3) Voss does not

need five mooring pilings; (4) Voss does not need the mooring

pilings to be so close to the Pirtle dock ; and (5) Voss's mooring

p ilings create a navigational hazard for boats entering or

leaving Pirtle's s ou th s lips.

4 2 . Because Voss's mooring pilings unreasonably interfere

with PirtleÓs riparian rights, they do not qualify for consent by

rule to use sovereignty submerged lands.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, i t is

RECOMMENDED that the Department of Environmental Protection

deny the exemption and consent by rule.

DONE AND ENTERED this 27th day of September , 2013 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Adminis trative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of September , 2013 .

ENDNOTE

1/ Although the term ÐriparianÑ is most often used for lands

bordering any navigable waterbody, the strict meaning of the term

applies only to lands bordering streams or rivers. Lands

bordering tidal waters ar e "littoral." See Johnson v. McCowen ,

infra , at 358.

COPIES FURNISHED:

Joanne M . Foster, Esquire

Guy , Yudin and Foster, LLP

55 East Ocean Boulevard

Stuart, Florida 34994 - 2214

Andrew J. Baumann, Esqu ire

Tara W. Duhy, Esquire

Lewis, Longman and Walker, P.A.

Suite 1500

515 North Flagler Drive

West Palm Beach, Florida 33401 - 4321

Brynna J. Ross, Esquire

Benjamin M. Melnick, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Pro tection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Matthew Z. Leopold, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

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.