13-000687 Bryan Baars vs. Mahogany Mill Owners Association, Inc., And Department Of Environmental Protection
 Status: Closed
Recommended Order on Tuesday, June 11, 2013.


View Dockets  
Summary: Dock in Channel next to Mahogany Mill Pond in Pensacola qualifies for regulatory exemption since it extends no further into the Channel than pre-existing mooring pilings.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ROBERT V. KRIEGEL ,

11Petitioner ,

12vs. Case No. 13 - 0686

18MAHOGANY MILL OWNERS

21ASSOCIATION, INC., AND

24DEPARTMENT OF ENVIRONMENTAL

27PROTECTION ,

28Respondents .

30_______________________________ /

32BRYAN BAARS,

34Pe titioner,

36vs. Case No. 13 - 0687

42MAHOGANY MILL OWNERS

45ASSOCIATION, INC. , AND

48DEPARTMENT OF ENVIRONMENTAL

51PROTECTION,

52Respondents.

53_______________________________ /

55MIKE BEARD,

57Petitioner,

58vs. Case No. 13 - 0774

64MAHOGANY MILL OWNERS

67ASSOCIATION, INC. , AND

70DEPARTMENT OF ENVIRONME NTAL

74PROTECTION,

75Respondents.

76_______________________________ /

78ED AND KAY RANKIN,

82Petitioner,

83vs. Case No. 13 - 0775

89MAHOGANY MILL OWNERS

92ASSOCIATION, INC. , AND

95DEPARTMENT OF ENVIRONMENTAL

98PROTECTION,

99Respondents.

100/

101RECOMMENDED ORDER

103These consolidated cases were heard by David M. Maloney,

112Administrative Law Judge with the Division of Administrative

120Hear ings ("DOAH") , on April 3, 2013 , in Pensacola, Florida.

132APPEARANCES

133For Petitioner s : Robert Kriegel , pro se

141Apartment 14

1431280 Mahogany Mill Road

147Pensacola, Florida 32507

150Bryan Baars , pro se

1541516 East Mallory Street

158Pensacola, Florida 32503

161Ed Rankin , pro se

165Mahogany Mill Homeowners Association

1691280 Mahogany Mill Road, Unit 7

175Pensacola, Florida 32507

178For Mahogany Mill Owners Association, Inc. :

185William J. Dunaway, Esquire

189Clark, Partington, Hart, Larry,

193Bond an d Stackhouse

197Post Office Box 13010

201Pensacola, Florida 32591

204For Department o f Environmental Protection :

211Brynna J. Ross, Esquire

215Department of Environmental Prote ction

220Mail Station 35

2233900 Commonwealth Boulevard

226Tallahassee, Florida 32399 - 3000

231STATEMENT OF THE ISSUES

235Whether Petitioners Kay Rankin and Mike Beard have standing?

244Whether the proj ect by Mahogany Mill Owners As sociation,

254Inc. ("Mahogany Mill ") , to remove two existing finger piers and

266construct three new finger piers and two boat lifts (the

"276Project") is exempt from the need to obtain an Environmental

287Resource Permit ("ERP") from the Department of Environmental

297Protection (the "Department") ?

301Whether the Project qualifies for authorization from the

309Board of Trustees of the Internal Improvement Fund (the "Board of

320Trustees") to use sovereign submerged lands?

327PRELIMINARY STATEMENT

329On October 5, 2012, Mahogany Mill, through a firm with

339which it had contracted for environmental consulting services,

347Wetland Sciences, Inc. ("Wetland Sciences") , submitted an

356application to the Department.

360The application sought to have the Project decl ared exempt

370from permitting and to obtain an authorization to use sovereign

380lands held in trust by the Board of Trustees. On October 24,

3922012, the Department issued a letter to Mahogany Mill, LLC,

402c/o Robert Montgomery, an owner of one of the bays of the

414original group building used by Mahogany Mill . The letter

424announces the Department's determination that the Project is

432exempt from regulatory review. The letter also consents to the

442construction and use of the Project on submerged lands owned by

453the stat e on behalf of the Board of Trustees. The letter,

465therefore, is both an exemption l etter that constitutes action by

476the Department and a letter of consent that constitutes

485proprietary action by the State of Florida.

492On February 14, 2013, a Notice of Dete rmination of

502Qualification for Exemption was published in the Escambia Sun -

512Press to provide notice to persons whose substantial interests

521may be affected by the Department's action and an opportunity to

532file a petition for an administrative hearing. On th e same day,

544the Department received a letter from Robert V. Kriegel, mailed

554February 11, 2013, in which Mr. Kriegel identified himself as

"564Petitioner" and requested "that the department conclude that

572respondent is not entitled to the use of the exemption f or the

585existing construction and proposed usage (24' power boat ) and

595that these structures be removed and any usage of these

605structures ceased." The Department treated the letter as a

614petition for hearing and referred the matter to DOAH in a

"625Request for Assignment of Administrative Law Judge and Notice of

635Preservation of Rights." The r equest was filed at DOAH on

646February 20, 2013 , and assigned Case No. 13 - 0686.

656By February 28, 2013, three other letters followed that were

666similar to Mr. Kriegel's: one f rom Bryan Baars, a second from Ed

679and Kay Rankin, and a third from Mike Beard. All three were

691treated as requests for hearing by the Department and referred to

702DOAH. Mr. Baars ' request was assigned Case No. 13 - 0687;

714Mr. Beard's request was assigned Case No. 13 - 0774 ; and Ed and Kay

728Rankins' request was assigned Case No. 13 - 0775. The three cases

740were consolidated with Case No. 13 - 0686.

748On March 15, 2013, Mahogany Mill, LLC, filed a motion for

759Mahogany Mill Owners Association, Inc., to be substituted as th e

770Respondent in the case. No objection was filed , and the motion

781was granted at the onset of the hearing which took place on

793April 3, 2013.

796At the commencement of the hearing, Carol Simpson, a non -

807attorney, made an ore tenus request for authori zation to

817represent Petitioner Beard at the hearing. The Department

825objected to Ms. Simpson's appearance as a qualified

833representative. The objection was sustained.

838Mahogany Mill presented the testimony of four witnesses:

846Robert Montgomery; Jason Taylor, an envi ronmental specialist with

855Wetland Sciences; Captain Benjamin Tyrone Cranford, accepted as

863an expert in marine navigation; and James W. Veal, an architect

874who owns property adjacent to the Project. Mahogany Mill offered

88422 exhibits, marked as Mahogany Mill Exhibits 1 - 21 and 5A. All

897were admitted.

899The Department presented the testimony of three witnesses:

907Susan Radford, an Environmental Specialist III with the

915Department; Randy Webb, accepted as an expert in marine

924navigation; and on rebuttal, Mike Lunn, a fact witness. The

934Department offered three exhibits, marked as Department

941Exhibits 1, 3, and 6. All were admitted.

949Petitioner Kriegel testified as an expert on his own behalf

959and was accepted as an expert in environmental permitting,

968resource permitti ng, sailboat handling and navigation, and

976powerboat handling and navigation. He also presented the

984testimony of Carol Simpson who was accepted as an expert in

995sailboat handling and navigation. Petitioner Kriegel offer e d one

1005exhibit, marked as Kr ie gel Exh ibit 1. It was admitted into

1018evidence. Petitioner Baars testified on his own behalf as an

1028expert in "handling of sailboats and navigation . " Hr'g Tr. 196 ,

1039Apr. 3, 2013. Petitioner Ed Rankin testified on behalf of

1049himself and Kay Rankin.

1053The T ranscri pt of the hearing was filed with DOAH on

1065April 18, 2013. The parties were given ten days after the filing

1077of the transcript to file proposed recommended orders. On

1086April 24, 2013, Mr. Baars filed "Petitioner's Proposed

1094Recommended Order , " which was signe d by M e ssrs. Kriegel, Baars ,

1106and Rankin. The Department and Mahogany Mill filed separate

1115proposed orders on Monday, April 29, 2013. All proposed

1124recommended orders are deemed filed in a timely manner and have

1135been consid ered in the preparation of this R e commended O rder .

1149FINDINGS OF FACT

1152Mahogany Mill Pond and the Channel

11581. Located in Pensacola, Florida, Mahogany Mill Pond is

1167connected by a channel (the "Channel") to Chico Bayou. The bayou

1179provides passage to Pensacola Bay and the bay, in turn, is

1190adja cent to the Gulf of Mexico.

11972. Prior to the dredging of the Channel in the 1950s to

1209connect the pond and the bayou, the pond was used to store logs

1222as part of a logging operation. After the dredging activity, the

1233storage of logs in the pond ceased. The pond began to serve as a

1247hold for sailboats and over the decades since, the Channel has

1258been used by sailboats and powerboat s alike to make their way to

1271the bayou and onward to the bay and the open waters of the Gulf.

12853. Currently, Mahogany Mill Pond is "one of the few places

1296left in Pensacola where you can have hurricane hold for deep

1307water sailboats." Hr'g Tr. 231. "Hurricane holds" are safe

1316places to moor a vessel in times of tropical storms and where, in

1329the words of Petitioner Rankin, "you can get your sailboat out of

1341the weather." Id.

13444. The petitioners in these four consolidated cases all own

1354deep draft sailboats which they moor in Mahogany Mill Pond.

13645. The Channel is bordered to the south by a spit of land

1377that juts into the bayou. The spit is approximately 600 feet

1388long , and its vegetation line (estimated to be the mean high

1399water line by an environmental consulting business) is roughly

140860 feet from the Project. The tip of the spit is opposed in the

1422bayou by the Palm Harbor Marina. T he marina is a busy one with

1436nearly every one of its slips occupied , as shown by photographic

1447evidence. The marina is about the same distance from the spit as

1459the Project is from the spit. There are shoals in the area and

1472they exist between the spit and the Project.

14806. Whether an excursion originates in the pond or the

1490Channel, boaters seeking egress to the bayou, the bay and t he

1502Gulf must make their way through th e Channel alongside the spit,

1514and around its tip in the vicinity of the marina, an area th at

1528includes shoals. Likewise from the bay or bayou, any boat headed

1539for the Channel or the pond must make its way through the narrow

1552area of the marina across from the spit, around the spit , and

1564through the shoals in and near the Channel so as to not run

1577aground.

15787 . Despite a "quiescent environment with a little bit of

1589intertidal flow" ( Hr'g T r. 149), the Channel requires dredging

"1600probably every 10 years , " id. , to maintain its navigability. It

1610has been dredged "a couple of times in the . . . 20 years , " id. ,

1625Petitioner Kriegel has lived in the area.

16328 . The last time the Channel was dredged was six or seven

1645years ago. To the best of Petitioner Rankin's memory, the cost

1656was about $16,000. Dredging costs are borne by the members of

1668the local homeowner s association.

16739 . The Channel's shallowness in some spots is a navigation

1684concern for sailboats and contributes to the Petitioners'

1692assessment of the Channel as "narrow" and "constricted . "

170110 . Despite shallowness and the presence of the shoals , as

1712well as the tight configuration created by the spit, the

1722Project's presence in the C hannel does not create a navigation

1733hazard for powerboat s that have two engines. This is due to the

1746ability of powerboat s to maintain position during a maneuver. As

1757explained by Petitioner Kriegel, "[A]s a result of [having two

1767engines], you can push one side of the boat forward and pull the

1780other side of the boat backwards and pivot the boat without

1791making any headway." Hr'g Tr. 152. A powerboat 's ability to

1802maintain positi on aids ma neuver ability, particularly in

1811constricted waterways. Sailboats, on the other hand, cannot

1819maintain position while they turn. In order for a sailboat to

1830execute a turn while under sail, it must be moving through the

1842water largely because their keels create lateral resistance.

1850When not under sail, sailboats are typically not able to maintain

1861position while turning because they are usually equipped with

1870only one engine.

18731 1 . A structure in a constricted waterway may be an obvious

1886navigational ha zard to any boat or it may be a hazard to some

1900boats but not others. More to the point, a structure that

1911extends into a waterway can be a navigational hazard to a

1922sailboat because of the sailboat's inability to maintain position

1931during a turn while at the same time it is not a hazard for a

1946powerboat that enjoys superior maneuverability based on its

1954capability to hold position during a pivot.

1961The Parties

19631 2 . Petitioners Kriegel, Baars, Ed and Kay Rankin, and

1974Beard are individual citizens who reside i n Escambia County.

1984They all own property in the vicinity of Mahogany Mill Pond , and

1996they all moor their deep draft sailboats in the hurricane hold

2007that is Mahogany Mill Pond. Each has extensive experience

2016navigating the pond, the C hannel, Chico Bayou , Pe nsacola Bay , and

2028the open waters of the Gulf of Mexico.

20361 3 . Mahogany Mill is a Florida homeowners association. It

2047has been substituted in this proceeding as a respondent in the

2058place of Mahogany Mill, LLC, the entity on whose behalf the

2069applica tion for the Project was submitted .

20771 4 . The Department is the agency of the State of Florida

2090that administers the provisions of section 403.813(1)(b) , Florida

2098Statutes (2012), 1/ and Florida Administrative Code R ule 62 -

2109346.051(5)(a) (which relates to exemptions fr om environmental

2117resource permitting in Northwest Florida) and, on behalf of the

2127Board of Trustees of the Internal Improvement Fund, if a p roject

2139is shown to qualify for an exemption from permitting, to

2149authorize the use of sovereign submerged lands pursua nt to

2159Florida Administrative Code R ule 18 - 21.005(1)(b), including

2168compliance with rule 18 - 21.004(7)(g).

2174The Application and the Pre - construction Mooring Pilings

21831 5 . The Application for the Project was submitted under

2194cover of a letter from Wetland Scie nces with a date of October 5,

22082012. The letter lists the applicant as "Mahogany Mill LLC,

2218c/o Robert Montgomery . " In the body of the letter, it states

2230that the Application was submitted "on behalf of Mr. Robert

2240Montgomery . " Mahogany Mill Ex. 1.

22461 6 . The October 5, 2012 , l etter is signed by Jason Taylor.

2260Wetland Sciences employs Mr. Taylor as an e nvironmental

2269s pecialist. Mr. Taylor holds a four - year degree from the

2281Univ ersity of West Florida and has been employed by Wetland

2292Sciences since 2004. Duri ng that time, he has been engaged in

2304marine permitting and has participated in the permitting of

2313several hundred projects.

23161 7 . In conducting the permitting of the Project, Mr. Taylor

2328interacted with both DEP personnel and personnel from the c ounty.

2339In t he discussions, Mr. Taylor was careful to address compliance

2350with any regulations related to the Project's water - ward

2360extension. His main concern was with the County Code because it

2371is slightly more stringent than DEP regulations. He informed

2380Mr. Montgom ery that a variance from the c ounty might be necessary

2393but that proved not to be the case. "[W]e could actually

2404construct [the Project] . . . as long as it stayed within the

2417same footprint as what was currently there, which extended . . .

242924 feet . . . in to the water body." Hr'g Tr. 89 - 90.

24441 8 . The "Plan View of Existing Site Conditions" drawn by

2456Mr. Taylor and submitted as an attachment to the Application ( see

2468page 2 of 6 attached to Mahogany Mill Ex. 1) shows that at the

2482time of the submission the Proj ect site encompassed two existing

2493mooring piles (the "Preconstruction Mooring Pilings") and two

2502finger piers. The Preconstruction Mooring Pilings served as bow

2511or stern lines for smaller vessels that would dock alongside the

2522two finger piers.

25251 9 . The fi nger piers extended approximately 12 feet

2536offshore. In contrast, the Preconstru c tion Mooring Pilings were

2546at a point that extended twice as far into the Channel , i.e.,

255824.0 feet offshore. In Mr. Taylor's opinion, the water - ward

2569extent of the location of the Preconstruction Mooring Pilings

2578justified a 24 - foot extension of the Project into the waterway.

259020 . Some of the exhibits attached to the Application were

2601scaled from an aerial. Others were supported by measurements

2610taken by Mr. Taylor in the field. The location of the

2621Preconstruction Mooring Pilings 24 feet offshore were among the

2630locations supported by field measurements taken by Mr. Taylor at

2640the site of the Project.

2645The Project

26472 1 . The Project is shown in the application to consist of

2660two 24 - foot by three - foot finger piers ( the "Outside Piers" ) and

2676a third finger pier between the other two (the "Middle Pier").

2688Like the Outside Piers, the Middle Pier extends 24 feet into the

2700Channel , but it is six feet wide (twice as wide as the Outside

2713Piers ). Two uncovered boat lifts, 12 feet wide each, are also

2725part of the Project. The points of the boat lifts that extend

2737the farthest from shore are within the utmost extension of the

2748piers, that is, within 24 feet from the shore (the identical

2759distance fr om shore as the Preconstruction Mooring Pilings). As

2769described in the application (the "information submitted to the

2778Department"), there is no part of the Project that extends beyond

279024 feet from the shore , i.e., where the Preconstruction Mooring

2800Pilings stood at the time of the application's submission.

28092 2 . The width of the Project (from the corners of the Outer

2823Piers ) alongside the Channel is 36 feet. The distances to an

"2835APPROXIMATE CENTER THREAD OF CHANNEL" ( see the estimation in the

"2846Close - Up Plan View of Proposed Activity, " p age 5 of 6 attached

2860to the Application, DEP Ex. 2) are 20.5 feet from one Outside

2872Pier, 18.1 feet from the Middle Pier, and 16.0 feet from the

2884other Outside Pier.

28872 3 . The total area of submerged lands preempted by the

2899Proj ect is 288.0 square feet. At the shore (where there is a

2912seawall), the Project lies within 49.6 linear feet of shoreline

2922owned by the applicant.

29262 4 . The Project is on the side of the Channel across from

2940the spit . The Project's side would be starboard o f a sailboat

2953returning to the pond from the bayou. It is also the side for a

2967boat headed toward the pond that a vessel would be obligated to

2979keep under boating "rules of the road" to avoid collisions or

2990scrapes with a boat coming from the direction of the pond headed

3002out of the Channel.

3006The Veal Dock

30092 5 . Next to the Project is a dock and boat lift owned by

3024James Warren Veal (the "Veal Dock").

30312 6 . Mr. Veal has a 21 - foot Cobia powerboat that he keeps on

3047a boat lift supported by the Veal Dock. His boat, equipped with

3059an outboard motor and moored in the boat lift of the Veal Dock,

3072was shown in Mahogany Mill Ex h ibit 21 "to be sticking out a few

3087inches more , " Hr'g T r. 110, than the stern and engine of

3099Mr. Montgomery's boat while docked at the Project. At th e time

3111Mr. Montgomery's boat was photographed to produce Mahogany Mill

3120Ex hibit 21 , it's stern extended "[r]oughly, ball park, a foot and

3132a half," Hr'g T r. 109 , past the piling . T he boat's engine

3146extended another foot and a half toward the center thread of the

3158Channel.

31592 7 . When docked at the Veal Dock, Mr. Veal's boat

3171(including the outboard motor off its stern) at its water - ward -

3184most extension is referred to as a "limiting point " ( see Hr'g

3196T r. 191 ) , by the Petitioners. Extending farther out into the

3208Cha nnel than any other structure, boat or engine (inc luding the

3220Project) on the Project's side of the Channel, the limiting point

3231created by a boat in the Veal Dock is what a sailboat swinging

3244around the spit into the Channel must avoid in order to enjoy

3256safe passage in the Channel.

3261The Letter of Exemption

3265and State - owned Submerged Land Authorization

32722 8 . The Letter of Exemption locates the Project both by

3284Parcel ID Number , as shown in local government records , and at

3295the street address of 1263 Mahogany Mill in Pensacola, Florida.

3305Its description of the Project is consistent with the description

3315in the Application. See DEP Ex. 1.

33222 9 . The Letter of Exemption verifies that the Project is

3334exempt from regulatory review:

3338Based on the information submitted, the

3344Department has determined that the

3349construction of the boatlifts and finger

3355piers, [ sic ] is exempt, [ sic ] under paragraph

336662 - 346.0512(5)(a), F.A.C., from the need to

3374obtain a regulatory permit.

3378Therefore, the Department grants an exemption

3384for the propose d activity under paragraph 62 -

3393346.051(5)(a), F.A.C., and Section

3397403.813(1)(b), F.S.

3399Id.

340030 . The Department's Letter of Exemption also authorize s

3410the use of state - owned submerged lands for the Project by virtue

3423of the Department's status as staff to t he Board of Trustees:

3435The Department has reviewed the activity

3441. . . and has determined that the activity

3450qualifies for a Letter of Consent under rule

345818 - 21.005(1)9(c)2., F.A.C.[,] and section

3465253.77 of the Florida Statutes to construct

3472and use the activit y on the specified

3480sovereign submerged lands, as long as the

3487work performed is located within the

3493boundaries as described herein and is

3499consistent with [certain] terms and

3504conditions . . . .

3509Id. , p age 2 of 5 (the letter of consent incorporated in the

3522Lett er of Exemption).

35263 1 . The Letter of Exemption (with the letter of consent

3538incorporated) was issued on October 24, 2012.

3545Statutes and Rules

3548a. Regulatory Exemption

35513 2 . Section 403.813(1) provides, inter alia , that a permit

3562is not required for activitie s associated with "[t]he

3571installation . . . of private docks, piers and recreational

3581docking facilities . . . [ provided they] . . . [s]hall not impede

3595the flow of water or create a navigational hazard ."

3605§ 403.813(1)(b)3., Fla. Stat. (emphasis added).

36113 3 . The statue is implemented by rule 62 - 346.051. Among

3624the activities listed in the rule that do not require an ERP are

"3637the installation . . . of private docks, piers and recreational

3648docking facilities . . . in accordance with Section

3657403.813(1)(b), F.S. , [and its requirement that they not impede

3666the flow of water or create a navigational hazard]." Fla. Admin.

3677Code R. 62 - 346.051(5).

3682b. State - owned Submerged Lands Authorization

36893 4 . Section 253.77 , Florida Statutes, prohibits a person

3699from the use of so vereign or other lands of the state until the

3713person has the required the form of consent authorizing the

3723proposed use.

37253 5 . Rule 18 - 21.005 implements section 253.77. The form of

3738authorization required for the Project is a "Letter of Consent . "

3749See Fla. Admin. Code R . 18 - 21.005(1)(c)4. In addition, rule 18 -

376321.004(7) imposes general conditions for authorizations including

3770obtaining the necessary letters of consent. Among the other

3779conditions are that " [ s]tructures or activities shall not create

3789a navigat ional hazard." Fla. Admin. Code R. 18 - 21.004(7)(g).

3800Good Faith Efforts at Compliance

38053 6 . Mr. Montgomery and Mahogany Mill made deliberate and

3816careful effort to comply with the applicable statutes and rules

3826prior to the issuance of the Letter of Exempt ion. They hired a

3839consulting firm with appropriate expertise in the permitting of

3848docks. Their consultant worked with the c ounty and the

3858Department.

38593 7 . Based on the information submitted with the application

3870and the Department's preliminary review, it is no surprise that

3880the Department found the Project qualified for a Letter of

3890Exemption under the statutes and rules that provided an exemption

3900from regulatory review and that authorized the use of state - owned

3912lands. This is especially true given the ca re taken by

3923Mr. Montgomery and his environmental consultant in seeking the

3932exemption and in light of the Project's extension into the

3942Channel at a point no more than the Preconstruction Mooring

3952Pilings , i.e., 24.0 feet .

3957Installation

39583 8 . Without delay, Mr . Montgomery "contracted with a marine

3970contractor to install the improvements [authorized by the Letter

3979of Exemption]." Hr'g Tr. 69.

39843 9 . The Project was constructed and its installation was

3995completed in December 2012.

399940 . Mr. Montgomery and Mahogany M ill heard no objection

4010from any party while the Project was under construction. There

4020were no objections voiced in the month or so afterward.

40304 1 . The first objection was made known to Mahogany Mill

4042when Mr. Kriegel visited Mr. Montgomery in mid - February 2013.

4053The Challenges

40554 2 . Mr. Kriegel was out of town when the Project was

4068installed. He did not see the Project until mid - to - late February

4082aboard his sailboat when he "had great difficulty in getting [the

4093boat ] back in [his] slip [in Mahogany Mill Pond ]." Hr'g Tr. 169.

41074 3 . Following his experience navigating the Channel in

4117February 2013 , Mr. Kriegel met with Mr. Montgomery . From

4127Mr. Kriegel's perspective, the meeting was to no avail. The four

4138petitions challenging the Letter of Exemption and the le tter of

4149consent were filed shortly thereafter.

4154The Hearing

4156a. Mahogany Mill's Prima Facie Case

41624 4 . As the applicant for the exemption and the consent to

4175use state - owned submerged lands, Mahogany Mill provided evidence

4185that the Project is not a navigatio nal hazard to powerboat s. The

4198evidence included a video of Mr. Montgomery on board a 38 - foot

4211powerboat ( see Hr'g T r. 44) smoothly navigating its way from the

4224bayou around the s pit, into the Channel and to the Project. The

4237powerboat was piloted by Captain Ben Cranford, who has 12 years

4248of experience navigating vessels through the area , including into

4257Mahogany Mill Pond from the Channel. When asked at hearing about

4268navigating the Channel while being videotaped, Captain Cranford

4276replied, "I'm not having any [difficulty], at all." Hr'g Tr. 46.

42874 5 . After the presentation by the Applicant of a prima

4299facie case of compliance and immediately following the supportive

4308case of the Department, Petitioners presented their cases.

4316Petitioners' Cases

43184 6 . The evidenc e presented by Petitioners established that

4329sailboats have far less maneuverability than powerboat s as a

4339result of a number of factors . I nability to maintain position

4351during a turn is one of them. Sailboats may be less maneuverable

4363than powerboat s becaus e of hull and keel design as well, even

4376when equipped with an outboard motor which typically has a single

4387propeller. Sailboat maneuverability limitations may be

4393exacerbated, moreover, by wind and other conditions, particularly

4401in the summer when the preva iling direction of the winds tend to

4414push off a sailboat.

44184 7 . Mr. Kriegel related difficulty t he three to four times

4431since the construction of the Project that he has navigated a

4442return to the pond in his sailboat. On those occasions, he

4453brought his bo at in under "better than ideal conditions" ( Hr'g

4465T r. 171 ) , due in part to facilitation of the sailboat's turns by

4479a north breeze, the wind that typically prevails in winter time.

4490On one day, he brought the boat in twice on a relatively high

4503tide, another favorable condition. He "had to make two efforts

4513to do it because [he] ran aground . . . the first time. And the

4528second time [he] almost hit the structure." Id.

45364 8 . Mr. Baars owns a deep draft sailboat that is "45'3",

4549which includes . . . a Bowsprit." Hr'g Tr. 197. A bowsprit is a

4563spar that extends forward from a vessel's prow to which the stays

4575of the foremast are fastened.

45804 9 . As of the date of the hearing, Mr. Baars had not

4594attempted egress or ingress since the Project was installed. But

4604he su mmed up his worry about the Project when Mr. Kr ie gel asked

4619him on cross examination whether he thought he could safely

4629navigate around the structure, "I'm concerned, other than trying

4638to test it, I would not know. I mean, as I look down from my

4653dock . . . it doesn't look too good." Hr'g Tr. 213.

466550 . Like Mr. Kriegel, Mr. Baars has never collided with

4676structures in the Channel but "came very close to the previous

4687structures . . . [and safety] was always a concern when [he] came

4700around the spit." Hr'g Tr . 221. Mr. Baars sailboat has also run

4713aground in the Channel because of prevailing conditions that made

4723maneuvering difficult .

47265 1 . In his testimony, Mr. Rankin recollected that when the

4738seawall was installed by a previous owner in 2001, the

4748application showed eight pilings, all of which were "12 - foot

4759out." Hr'g Tr. 226. He has "bounced off and shoved of f one of

4773those pilings [the Preconstruction Mooring Pilings] before,

4780getting around the corner." Hr'g Tr. 227. Mr. Rankin described

4790his experience in navigating from the bayou through the Channel

4800headed for the pond:

4804. . . I've come in there, around that spit,

4814at low tide, and run aground because the pass

4823is so narrow you have to back up and find it.

4834In the process of finding it, you sometimes

4842have to power over it and that means you back

4852up as far as you can and go full tip wide up

4864to jump it. And in [the] process you're

4872aiming straight for the problems of the piers

4880where they are now. And I'm not saying I

4889can't do it. I'm just saying . . . I'm

4899afr aid I'm going to hit it someday. It's

4908that tight. It's that difficult.

4913* * *

4916So all of it [the shallowness, the shoals,

4924the spit, the difficulty in maneuvering

4930sailboats , the structures in the Channel ],

4937you've got to be moving. If you get stuck,

4946then you have to cut -- you dredge that area

4956and the y dredged it as close to . . . the end

4969of the spit. So it's very, cutting that

4977corner, you're aiming straight at those docks

4984or Mr. Veal's dock. And if I have to be

4994powering over it, by the time I get over the

5004hump, which is the end of the spit, then I

5014have to turn. I can't be turning over the

5023hump.

5024* * *

5027But I have pushed off -- my wife has pushed

5037off one of the pilings.

5042Hr'g Tr. 228 - 230.

50475 2 . Ms. Simpson has navigated the deep draft sailbo at owned

5060by Petitioner Beard through the Channel numerous times over the

5070past 20 years. She raced sailboats and participated in regattas

5080so often that she "started racing sailboats in the women's

5090regattas, where [she] captained and helmed [her] own boats. "

5099Hr'g Tr. 242. Compared to the three P etitioners who testified

5110and the sailing populati o n in the area , she and Petitioner Beard

5123sail their boats and "come . . . into Mahogany Mill Pond,

5135probably more often than anybody else." Hr'g Tr. 244.

51445 3 . Ms. Si mpson echoed the concerns of the three

5156Petitioners who testified . S he expressed her fear s of a

5168collision with the Project in the future based on difficulty in

5179navigating the Channel prior to the Project's installation . T hen

5190there were only the two Precon struction Mooring Pilings present

520024 fe et from shore as opposed to the Project that is now 24 feet

5215offshore with a width of 36 feet:

5222And like everybody else . . . we use Jim

5232Veal's slip . . . we have to go in almost

5243south of him . . . so you get the boat i n.

5256And once we pass the spit, we . . . do a

5268sharp turn and come up . . . if there's any

5279type of weather at all . . . you've got to

5290keep the boat moving . . . there [have] been

5300numerous occasions when the wind was heavy

5307. . . that we will come so close to the

5318pilings out there that I actually was on the

5327bow of the boat pushing it away . . . .

5338* * *

5341. . . if there's a wind blowing . . . you

5353have to be coming so fast to keep it up and

5364then you have to make sure that you can make

5374that run and keep it und er control. And like

5384I said, I've pushed off from [the pilings].

5392Hr'g Tr. 244 - 6 .

53985 4 . Mrs. Simpson's concerns were not limi ted to the

5410Project. B oats with engines attached to their sterns docked at

5421the Project can extend out further than the Project : "[N]ow

5432there's been another . . . 4 feet added on to [the Project]

5445because . . . everybody [who] builds a dock wants a boat bigger

5458than the dock is." Hr'g Tr. 247. The three Petitioners shared

5469the concern about the additional extension into a Channel of

5479boats and engines beyond the 24 feet of the Project's extension.

5490Ms. Simpson reiterated, "If there's any wind at all, [the Project

5501and boats docked at it] are going to cause major problems." Hr'g

5513Tr. 248.

55155 5 . As the three Petitioners who testified, Ms. Simpson has

5527never collided in a sailboat with the Preconstruction Mooring

5536Pilings . At the time of hearing, Petitioner Beard had been in

5548the Bahamas with his sailboat since October 2012 and had not

5559returned. Ms. Simpson, therefore, had not yet contended with the

5569Project or any boats docked there in navigat ing the Channel .

55815 6 . Ms. Simpson, however, did observe Mr. Kr ie gel attempt

5594to navigate his sailboat through the Channel clear of the

5604Project. He ran aground trying to avoid both the spit and the

5616struc tures. Ms. Simpson detailed potential consequences :

5624. . . [S] ailboats running aground, it's not a

5634good thing . . . y ou have got your keels and

5646. . . instruments on the b ottom close to your

5657rudder . . . you run a sailboat aground, you

5667take the bottom paint off and you hit

5675whatever else is down there . . . then you

5685have to put it in power drive t o get it back

5697off . . . y ou can do quite a bit of damage to

5711a boat when you run it aground, especially a

5720sailboat.

5721Hr'g Tr. 259.

5724Potential Solution

57265 7 . Mr. Kri egel referred to a turning basin in the area of

5741the Palm Harbor Marina. The turning basin is where Petitioners

5751headed for the pond in their sailboats commence the swing around

5762the spit taking into consideration the limiting point of the Veal

5773Dock in order to avoid collision s with structures (or docked

5784boats) that extend into the Channel.

57905 8 . A potential solution to the difficulties encountered by

5801navigators of sailboats in the Channel is to dredge the turning

5812basin . If the turning basin were wide and deep enough, sailboats

5824would have more opportunity to enter the Channel straight on

5834rather than having t o swing around the spit when entering .

58465 9 . Some b oats headed for the pond are able to make the

5861necessary turn inside the turning basin now. Mike Lunn lives at

5872Mahogany Mill Pond. When he looks out the sliding glass door at

5884his house he has a clear view of the Project and the turning

5897basin. From what he has usually seen, boats "turn around in

5908[the] basin a little bit." Hr'g Tr. 266. He doesn't ever seem

5920them "cut like that , " id. , in the swi ng described by Petitioners.

5932Whether he was referring to sailboats or just powerboat s is not

5944entirely clear , but h e testified with regard to Petitioners and

5955the entry into the Channel they described, "that's what y'all are

5966saying but that's not what I see." Id .

597560 . I n testimony that followed Mr. Lunn's, Mr. Kriegel

5986explained that it is hard to judge whe n and where to make turn s

6001in the basin because of the narrowness of the Channel. There is

6013no doubt, howeve r, that navigation would be improved with

6023dredging of the turning basin to make it deeper and wider even if

6036it did not entirely cure the navigational problems described by

6046all of Petitioners and Ms. Simpson . As Mr. Kr ie gel offered on

6060cross - examination by Mr. Dunaway:

6066Now, if the turning radius were expanded, if

6074the turning basin were dredged out, if the

6082boats had more room to maneuver, some of [the

6091navigational problems getting to the pond

6097from the bayou] could be improved, yes.

6104Hr'g Tr. 166. Whether dre dging the turning basin is an

6115attainable solution was not confirmed . Mr. Kr ie gel testified,

"6126I'm not sure . . . everybody would like to see it dredged out."

6140Hr'g Tr. 167.

6143CONCLUSIONS OF LAW

6146a. Jurisdiction

61486 1 . The Division of Administrative Hearings has

6157jurisdiction over the subject matter of this case and the

6167parties. §§ 120.569 and 120.57, Fla. Stat.

6174b. Standing

61766 2 . Petitioners Kr ie gel, Baars , and Ed Rankin & Kay Rankin

6190proved that their substantial interests could reasonably be

6198affected by the Project. They demonstrated that they have

6207standing to bring their respective petitions. Palm Beach Cnty .

6217Envtl. Coal . v. Fla . Dep't of Envt l . Prot . , 14 So. 3d 1076 (Fla.

62354th DCA 2009).

62386 3 . The evidence offered by the three testifying

6248Petitioners and M s. Simpson proved that Petitioner Beard's

6257substantial interests could reasonably be affected by the Project

6266as well.

6268c. Burden and Standard of Proof

62746 4 . As the party seeking the exemption, Mahogany Mill bears

6286the burden of proving by a preponderance of the evidence that it

6298has clearly established entitlement. See Lardas v. Dep't of

6307Envtl. Prot . , Case No. 05 - 0458 (Fla. DOAH Aug. 24, 2005; Fla. DEP

6322Oct. 21, 2005).

6325d. Statutes and Rules at Issue

63316 5 . To qualify for an exemption for the Project under

6343se ction 403. 813 (1)(b), Florida Statutes, Mahogany Mill was

6353required to demonstrate that the Project will meet the

6362qualifications in the statute including that a project will not

"6372create a navigational hazard." § 403. 813 (1)(b), Fla. Stat. See

6383also Fla. Admi n. Code R. 62 - 346.051(5)(a).

63926 6 . Qualification for the regulatory exemption under

6401section 403. 813 (1)(b) entitles Mahogany Mill to an authorization

6411to use state - owned submerged lands. See Fla. Admin. Code R. 18 -

642521.005(1)(b) and 18 - 21.004(7)(g).

6430e. Entit lement to Exemption and Authorization

64376 7 . Mahogany Mill demonstrated by a preponderance of

6447evidence that the Project "will not create a navigational

6456hazard." This conclusion is based on the evidence that the

6466Project does not extend into the Channel more than 24.0 feet

6477offshore, the same extension into the Channel of the

6486Preconstruction Mooring Pilings with which no vessel was shown to

6496have ever collided with in the many trips taken by Petitioners in

6508and out of the Channel.

65136 8 . The conclusion that Mahog any Mill is entitled to the

6526regulatory exemption and the proprietary authorization does not

6534mean that the concerns of the Petitioners have no foundation.

6544The configuration of the Channel, the spit, the Palm Harbor

6554Marina, and the shoals in the area presen ts navigational

6564challenges particularly to deep draft sailboats seeking ingress

6572to Mahogany Mill Pond under certain weather conditions.

65806 9 . Nonetheless, the preponderance of the evidence clearly

6590establishes that the Project is no more of a navigational hazard

6601than the Preconstruction Mooring Pilings. Thus, it does not

"6610create" a navigational hazard. There is a potential solution,

6619moreover, to the difficulties in entering the Channel posed by

6629Petitioners . The solution was presented by the Department

6638th rough the rebuttal testimony of Mr. Lunn ; that is , turning in

6650the turning basin just before entering the Channel when heading

6660for the pond. Dredging of the turning basin would likely enhance

6671the chances of success.

6675RECOMMENDATION

6676Based on the foregoing Fi ndings of Fact and Conclusions of

6687Law, it is

6690RECOMMENDED that that the Department of Environmental

6697Protection issue a f inal o rder determining that Mahogany Mill

6708Owners Association, Inc.'s Project qualifies for an exemption

6716from the need to obtain an Envir onmental Resource Permit under

6727section 403.813(1)(b) and qualifies for authorization to use

6735sovereign submerged lands under r ule 18 - 21.005(1)(b).

6744DONE AND ENTERED this 11th day of June , 2013 , in

6754Tallahassee, Leon County, Florida.

6758S

6759DAVID M. MALONEY

6762Ad ministrative Law Judge

6766Division of Administrative Hearings

6770The DeSoto Building

67731230 Apalachee Parkway

6776Tallahassee, Florida 32399 - 3060

6781(850) 488 - 9675

6785Fax Filing (850) 921 - 6847

6791www.doah.state.fl.us

6792Filed with the Clerk of the

6798Division of Administrative Hea rings

6803this 11th day of June , 2013 .

6810ENDNOTE

68111/ References to statutes are to Florida Statutes (2012) unless

6821otherwise noted.

6823COPIES FURNISHED:

6825Brynna J. Ross, Esquire

6829Department of Environmental Protection

6833Mail Station 35

68363900 Commonwealth Boulevard

6839Tallahassee, Florida 32399 - 3000

6844Robert Kriegel

6846Apartment 14

68481280 Mahogany Mill Road

6852Pensacola, Florida 32507

6855William J. Dunaway, Esquire

6859Clark, Partington, Hart, Larry,

6863Bond and Stackhouse

6866Post Office Box 13010

6870Pensacola, Florida 32591

6873Bryan Baars

68751516 East Mallory Street

6879Pensacola, Florida 32503

6882Mike Beard

68841280 Mahogany Mill Road, Unit 15

6890Pensacola, Florida 32507

6893Ed Rankin

6895Kay Rankin

6897Mahogany Mill Homeowners Association

69011280 Mahogany Mill Road, Unit 7

6907Pensacola, Florida 32507

6910Lea Crandall, Ag ency Clerk

6915Department of Environmental Protection

6919Douglas Building, Mail Station 35

69243900 Commonwealth Boulevard

6927Tallahassee, Florida 32399 - 3000

6932Matthew Z. Leopold, General Counsel

6937Department of Environmental Protection

6941Douglas Building, Mail Station 35

69463 900 Commonwealth Boulevard

6950Tallahassee, Florida 32399 - 3000

6955Herschel T. Vinyard, Jr., Secretary

6960Department of Environmental Protection

6964Douglas Building

69663900 Commonwealth Boulevard

6969Tallahassee, Florida 32399 - 3000

6974NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6980Al l parties have the right to submit written exceptions within

699115 days from the date of this Recommended Order. Any exceptions

7002to this Recommended Order should be filed with the agency that

7013will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/10/2013
Proceedings: Department of Environmental Protection's Response to Petitioners Kriegel, Baars, and Rankin's Exceptions to Recommended Order filed.
PDF:
Date: 09/10/2013
Proceedings: Respondent, Mahogany Mill Owners Association, Inc., Response to Exceptions to Recommended Order Filed by Petitioners, Robert V. Kriegel, Bryan Barrs, and Ed & Kay Rankin filed.
PDF:
Date: 09/10/2013
Proceedings: Florida Department of Environmental Protection's Exceptions to Recommended Order filed.
PDF:
Date: 09/10/2013
Proceedings: Exceptions to Recommended Order filed.
PDF:
Date: 09/10/2013
Proceedings: Agency Final Order filed.
PDF:
Date: 09/09/2013
Proceedings: Agency Final Order
PDF:
Date: 06/12/2013
Proceedings: Transmittal letter from Claudia Llado forwarding Exhibits, which were not admitted into evidence, to the agency.
PDF:
Date: 06/11/2013
Proceedings: Recommended Order
PDF:
Date: 06/11/2013
Proceedings: Recommended Order (hearing held April 3, 2013). CASE CLOSED.
PDF:
Date: 06/11/2013
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 04/29/2013
Proceedings: Respondent, Mahogany Mills, LLC's, Proposed Recommended Order filed.
PDF:
Date: 04/29/2013
Proceedings: Department's Proposed Recommended Order filed.
PDF:
Date: 04/24/2013
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 04/18/2013
Proceedings: Transcript Volume I-II (not available for viewing) filed.
Date: 04/03/2013
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/29/2013
Proceedings: Respondent, Mahogany Mills, LLC's Supplement to its Prehearing Statement filed.
PDF:
Date: 03/27/2013
Proceedings: Department's Pre-hearing Statement filed.
PDF:
Date: 03/27/2013
Proceedings: Respondent, Mahogany Mills, LLC's, Pre-hearing Statement filed.
PDF:
Date: 03/27/2013
Proceedings: Amendment to Motion for Substitution of Respondent filed.
PDF:
Date: 03/20/2013
Proceedings: Notice of Meeting filed.
PDF:
Date: 03/19/2013
Proceedings: Notice to Mahogany Mill Homeowner's Association filed.
PDF:
Date: 03/15/2013
Proceedings: Motion for Substitution of Respondent filed.
PDF:
Date: 03/15/2013
Proceedings: Motion for Substitution of Respondent filed.
PDF:
Date: 03/13/2013
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 03/13/2013
Proceedings: Notice of Hearing (hearing set for April 3 and 4, 2013; 9:30 a.m., Central Time; Pensacola, FL).
PDF:
Date: 03/11/2013
Proceedings: Order of Consolidation (DOAH Case Nos. 13-0686, 13-0687, 13-0774, and 13-0775).
PDF:
Date: 03/11/2013
Proceedings: Department of Environmental Protection's Response to Initial Order filed.
PDF:
Date: 03/06/2013
Proceedings: Respondent Department of Environmental Protection's First Request for Production of Documents to Petitioner Bryan Baars filed.
PDF:
Date: 03/06/2013
Proceedings: Notice and Certificate of Service of Respondent DEP's First Set of Interrogatories to Petitioner Bryan Baars filed.
PDF:
Date: 03/04/2013
Proceedings: (Petitioner's) Response to Initial Order filed.
PDF:
Date: 03/01/2013
Proceedings: Order Granting Extension of Time.
PDF:
Date: 02/28/2013
Proceedings: Request for Extension of Time to File Response to Initial Order filed.
PDF:
Date: 02/28/2013
Proceedings: Notice of Appearance (William Dunaway) filed.
PDF:
Date: 02/28/2013
Proceedings: (Petitioner's) Response to Initial Order filed.
PDF:
Date: 02/28/2013
Proceedings: (Petitioner's) Response to Initial Order filed.
PDF:
Date: 02/21/2013
Proceedings: Initial Order.
PDF:
Date: 02/20/2013
Proceedings: Notice of Related Case filed.
PDF:
Date: 02/20/2013
Proceedings: Agency action letter filed.
PDF:
Date: 02/20/2013
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 02/20/2013
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
DAVID M. MALONEY
Date Filed:
02/20/2013
Date Assignment:
02/21/2013
Last Docket Entry:
09/10/2013
Location:
Pensacola, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related Florida Statute(s) (4):