13-000774 Mike Beard vs. Mahogany Mill Owners Association, Inc., And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, June 11, 2013.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT V. KRIEGEL ,

Petitioner ,

vs. Case No. 13 - 0686

MAHOGANY MILL OWNERS

ASSOCIATION, INC., AND

DEPARTMENT OF ENVIRONMENTAL

PROTECTION ,

Respondents .

_______________________________ /

BRYAN BAARS,

Pe titioner,

vs. Case No. 13 - 0687

MAHOGANY MILL OWNERS

ASSOCIATION, INC. , AND

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondents.

_______________________________ /

MIKE BEARD,

Petitioner,

vs. Case No. 13 - 0774

MAHOGANY MILL OWNERS

ASSOCIATION, INC. , AND

DEPARTMENT OF ENVIRONME NTAL

PROTECTION,

Respondents.

_______________________________ /

ED AND KAY RANKIN,

Petitioner,

vs. Case No. 13 - 0775

MAHOGANY MILL OWNERS

ASSOCIATION, INC. , AND

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondents.

/

RECOMMENDED ORDER

These consolidated cases were heard by David M. Maloney,

Administrative Law Judge with the Division of Administrative

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

APPEARANCES

For Petitioner s : Robert Kriegel , pro se

Apartment 14

1280 Mahogany Mill Road

Pensacola, Florida 32507

Bryan Baars , pro se

1516 East Mallory Street

Pensacola, Florida 32503

Ed Rankin , pro se

Mahogany Mill Homeowners Association

1280 Mahogany Mill Road, Unit 7

Pensacola, Florida 32507

For Mahogany Mill Owners Association, Inc. :

William J. Dunaway, Esquire

Clark, Partington, Hart, Larry,

Bond an d Stackhouse

Post Office Box 13010

Pensacola, Florida 32591

For Department o f Environmental Protection :

Brynna J. Ross, Esquire

Department of Environmental Prote ction

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUES

Whether Petitioners Kay Rankin and Mike Beard have standing?

Whether the proj ect by Mahogany Mill Owners As sociation,

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

construct three new finger piers and two boat lifts (the

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

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

Protection (the "Department") ?

Whether the Project qualifies for authorization from the

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

Trustees") to use sovereign submerged lands?

PRELIMINARY STATEMENT

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

which it had contracted for environmental consulting services,

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

application to the Department.

The application sought to have the Project decl ared exempt

from permitting and to obtain an authorization to use sovereign

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

2012, the Department issued a letter to Mahogany Mill, LLC,

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

original group building used by Mahogany Mill . The letter

announces the Department's determination that the Project is

exempt from regulatory review. The letter also consents to the

construction and use of the Project on submerged lands owned by

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

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

the Department and a letter of consent that constitutes

proprietary action by the State of Florida.

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

Qualification for Exemption was published in the Escambia Sun -

Press to provide notice to persons whose substantial interests

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

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

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

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

"Petitioner" and requested "that the department conclude that

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

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

that these structures be removed and any usage of these

structures ceased." The Department treated the letter as a

petition for hearing and referred the matter to DOAH in a

"Request for Assignment of Administrative Law Judge and Notice of

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

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

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

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

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

treated as requests for hearing by the Department and referred to

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

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

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

were consolidated with Case No. 13 - 0686.

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

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

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

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

April 3, 2013.

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

attorney, made an ore tenus request for authori zation to

represent Petitioner Beard at the hearing. The Department

objected to Ms. Simpson's appearance as a qualified

representative. The objection was sustained.

Mahogany Mill presented the testimony of four witnesses:

Robert Montgomery; Jason Taylor, an envi ronmental specialist with

Wetland Sciences; Captain Benjamin Tyrone Cranford, accepted as

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

who owns property adjacent to the Project. Mahogany Mill offered

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

were admitted.

The Department presented the testimony of three witnesses:

Susan Radford, an Environmental Specialist III with the

Department; Randy Webb, accepted as an expert in marine

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

Department offered three exhibits, marked as Department

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

Petitioner Kriegel testified as an expert on his own behalf

and was accepted as an expert in environmental permitting,

resource permitti ng, sailboat handling and navigation, and

powerboat handling and navigation. He also presented the

testimony of Carol Simpson who was accepted as an expert in

sailboat handling and navigation. Petitioner Kriegel offer e d one

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

evidence. Petitioner Baars testified on his own behalf as an

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

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

himself and Kay Rankin.

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

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

of the transcript to file proposed recommended orders. On

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

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

and Rankin. The Department and Mahogany Mill filed separate

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

recommended orders are deemed filed in a timely manner and have

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

FINDINGS OF FACT

Mahogany Mill Pond and the Channel

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

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

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

adja cent to the Gulf of Mexico.

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

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

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

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

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

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

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

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

left in Pensacola where you can have hurricane hold for deep

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

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

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

the weather." Id.

4. The petitioners in these four consolidated cases all own

deep draft sailboats which they moor in Mahogany Mill Pond.

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

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

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

water line by an environmental consulting business) is roughly

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

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

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

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

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

they exist between the spit and the Project.

6. Whether an excursion originates in the pond or the

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

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

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

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

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

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

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

aground.

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

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

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

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

Petitioner Kriegel has lived in the area.

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

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

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

the local homeowner s association.

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

concern for sailboats and contributes to the Petitioners'

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

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

well as the tight configuration created by the spit, the

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

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

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

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

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

other side of the boat backwards and pivot the boat without

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

maintain positi on aids ma neuver ability, particularly in

constricted waterways. Sailboats, on the other hand, cannot

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

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

water largely because their keels create lateral resistance.

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

position while turning because they are usually equipped with

only one engine.

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

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

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

extends into a waterway can be a navigational hazard to a

sailboat because of the sailboat's inability to maintain position

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

powerboat that enjoys superior maneuverability based on its

capability to hold position during a pivot.

The Parties

1 2 . Petitioners Kriegel, Baars, Ed and Kay Rankin, and

Beard are individual citizens who reside i n Escambia County.

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

they all moor their deep draft sailboats in the hurricane hold

that is Mahogany Mill Pond. Each has extensive experience

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

the open waters of the Gulf of Mexico.

1 3 . Mahogany Mill is a Florida homeowners association. It

has been substituted in this proceeding as a respondent in the

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

applica tion for the Project was submitted .

1 4 . The Department is the agency of the State of Florida

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

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

346.051(5)(a) (which relates to exemptions fr om environmental

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

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

is shown to qualify for an exemption from permitting, to

authorize the use of sovereign submerged lands pursua nt to

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

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

The Application and the Pre - construction Mooring Pilings

1 5 . The Application for the Project was submitted under

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

2012. The letter lists the applicant as "Mahogany Mill LLC,

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

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

Montgomery . " Mahogany Mill Ex. 1.

1 6 . The October 5, 2012 , l etter is signed by Jason Taylor.

Wetland Sciences employs Mr. Taylor as an e nvironmental

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

Univ ersity of West Florida and has been employed by Wetland

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

marine permitting and has participated in the permitting of

several hundred projects.

1 7 . In conducting the permitting of the Project, Mr. Taylor

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

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

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

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

is slightly more stringent than DEP regulations. He informed

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

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

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

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

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

1 8 . The "Plan View of Existing Site Conditions" drawn by

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

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

time of the submission the Proj ect site encompassed two existing

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

finger piers. The Preconstruction Mooring Pilings served as bow

or stern lines for smaller vessels that would dock alongside the

two finger piers.

1 9 . The fi nger piers extended approximately 12 feet

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

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

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

extent of the location of the Preconstruction Mooring Pilings

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

20 . Some of the exhibits attached to the Application were

scaled from an aerial. Others were supported by measurements

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

Preconstruction Mooring Pilings 24 feet offshore were among the

locations supported by field measurements taken by Mr. Taylor at

the site of the Project.

The Project

2 1 . The Project is shown in the application to consist of

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

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

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

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

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

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

the farthest from shore are within the utmost extension of the

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

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

described in the application (the "information submitted to the

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

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

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

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

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

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

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

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

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

other Outside Pier.

2 3 . The total area of submerged lands preempted by the

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

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

owned by the applicant.

2 4 . The Project is on the side of the Channel across from

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

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

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

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

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

out of the Channel.

The Veal Dock

2 5 . Next to the Project is a dock and boat lift owned by

James Warren Veal (the "Veal Dock").

2 6 . Mr. Veal has a 21 - foot Cobia powerboat that he keeps on

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

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

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

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

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

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

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

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

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

Channel.

2 7 . When docked at the Veal Dock, Mr. Veal's boat

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

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

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

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

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

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

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

safe passage in the Channel.

The Letter of Exemption

and State - owned Submerged Land Authorization

2 8 . The Letter of Exemption locates the Project both by

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

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

Its description of the Project is consistent with the description

in the Application. See DEP Ex. 1.

2 9 . The Letter of Exemption verifies that the Project is

exempt from regulatory review:

Based on the information submitted, the

Department has determined that the

construction of the boatlifts and finger

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

62 - 346.0512(5)(a), F.A.C., from the need to

obtain a regulatory permit.

Therefore, the Department grants an exemption

for the propose d activity under paragraph 62 -

346.051(5)(a), F.A.C., and Section

403.813(1)(b), F.S.

Id.

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

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

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

The Department has reviewed the activity

. . . and has determined that the activity

qualifies for a Letter of Consent under rule

18 - 21.005(1)9(c)2., F.A.C.[,] and section

253.77 of the Florida Statutes to construct

and use the activit y on the specified

sovereign submerged lands, as long as the

work performed is located within the

boundaries as described herein and is

consistent with [certain] terms and

conditions . . . .

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

Lett er of Exemption).

3 1 . The Letter of Exemption (with the letter of consent

incorporated) was issued on October 24, 2012.

Statutes and Rules

a. Regulatory Exemption

3 2 . Section 403.813(1) provides, inter alia , that a permit

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

installation . . . of private docks, piers and recreational

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

the flow of water or create a navigational hazard ."

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

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

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

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

docking facilities . . . in accordance with Section

403.813(1)(b), F.S. , [and its requirement that they not impede

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

Code R. 62 - 346.051(5).

b. State - owned Submerged Lands Authorization

3 4 . Section 253.77 , Florida Statutes, prohibits a person

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

person has the required the form of consent authorizing the

proposed use.

3 5 . Rule 18 - 21.005 implements section 253.77. The form of

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

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

21.004(7) imposes general conditions for authorizations including

obtaining the necessary letters of consent. Among the other

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

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

Good Faith Efforts at Compliance

3 6 . Mr. Montgomery and Mahogany Mill made deliberate and

careful effort to comply with the applicable statutes and rules

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

consulting firm with appropriate expertise in the permitting of

docks. Their consultant worked with the c ounty and the

Department.

3 7 . Based on the information submitted with the application

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

the Department found the Project qualified for a Letter of

Exemption under the statutes and rules that provided an exemption

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

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

Mr. Montgomery and his environmental consultant in seeking the

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

Channel at a point no more than the Preconstruction Mooring

Pilings , i.e., 24.0 feet .

Installation

3 8 . Without delay, Mr . Montgomery "contracted with a marine

contractor to install the improvements [authorized by the Letter

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

3 9 . The Project was constructed and its installation was

completed in December 2012.

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

from any party while the Project was under construction. There

were no objections voiced in the month or so afterward.

4 1 . The first objection was made known to Mahogany Mill

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

The Challenges

4 2 . Mr. Kriegel was out of town when the Project was

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

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

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

4 3 . Following his experience navigating the Channel in

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

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

petitions challenging the Letter of Exemption and the le tter of

consent were filed shortly thereafter.

The Hearing

a. Mahogany Mill's Prima Facie Case

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

use state - owned submerged lands, Mahogany Mill provided evidence

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

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

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

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

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

of experience navigating vessels through the area , including into

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

navigating the Channel while being videotaped, Captain Cranford

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

4 5 . After the presentation by the Applicant of a prima

facie case of compliance and immediately following the supportive

case of the Department, Petitioners presented their cases.

Petitioners' Cases

4 6 . The evidenc e presented by Petitioners established that

sailboats have far less maneuverability than powerboat s as a

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

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

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

when equipped with an outboard motor which typically has a single

propeller. Sailboat maneuverability limitations may be

exacerbated, moreover, by wind and other conditions, particularly

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

push off a sailboat.

4 7 . Mr. Kriegel related difficulty t he three to four times

since the construction of the Project that he has navigated a

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

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

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

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

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

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

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

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

4 8 . Mr. Baars owns a deep draft sailboat that is "45'3",

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

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

of the foremast are fastened.

4 9 . As of the date of the hearing, Mr. Baars had not

attempted egress or ingress since the Project was installed. But

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

him on cross examination whether he thought he could safely

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

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

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

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

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

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

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

aground in the Channel because of prevailing conditions that made

maneuvering difficult .

5 1 . In his testimony, Mr. Rankin recollected that when the

seawall was installed by a previous owner in 2001, the

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

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

those pilings [the Preconstruction Mooring Pilings] before,

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

his experience in navigating from the bayou through the Channel

headed for the pond:

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

at low tide, and run aground because the pass

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

In the process of finding it, you sometimes

have to power over it and that means you back

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

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

aiming straight for the problems of the piers

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

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

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

that tight. It's that difficult.

* * *

So all of it [the shallowness, the shoals,

the spit, the difficulty in maneuvering

sailboats , the structures in the Channel ],

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

then you have to cut -- you dredge that area

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

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

corner, you're aiming straight at those docks

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

powering over it, by the time I get over the

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

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

hump.

* * *

But I have pushed off -- my wife has pushed

off one of the pilings.

Hr'g Tr. 228 - 230.

5 2 . Ms. Simpson has navigated the deep draft sailbo at owned

by Petitioner Beard through the Channel numerous times over the

past 20 years. She raced sailboats and participated in regattas

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

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

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

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

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

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

5 3 . Ms. Si mpson echoed the concerns of the three

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

collision with the Project in the future based on difficulty in

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

there were only the two Precon struction Mooring Pilings present

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

offshore with a width of 36 feet:

And like everybody else . . . we use Jim

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

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

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

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

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

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

numerous occasions when the wind was heavy

. . . that we will come so close to the

pilings out there that I actually was on the

bow of the boat pushing it away . . . .

* * *

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

have to be coming so fast to keep it up and

then you have to make sure that you can make

that run and keep it und er control. And like

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

Hr'g Tr. 244 - 6 .

5 4 . Mrs. Simpson's concerns were not limi ted to the

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

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

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

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

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

the concern about the additional extension into a Channel of

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

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

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

Tr. 248.

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

never collided in a sailboat with the Preconstruction Mooring

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

the Bahamas with his sailboat since October 2012 and had not

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

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

5 6 . Ms. Simpson, however, did observe Mr. Kr ie gel attempt

to navigate his sailboat through the Channel clear of the

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

struc tures. Ms. Simpson detailed potential consequences :

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

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

. . . instruments on the b ottom close to your

rudder . . . you run a sailboat aground, you

take the bottom paint off and you hit

whatever else is down there . . . then you

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

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

a boat when you run it aground, especially a

sailboat.

Hr'g Tr. 259.

Potential Solution

5 7 . Mr. Kri egel referred to a turning basin in the area of

the Palm Harbor Marina. The turning basin is where Petitioners

headed for the pond in their sailboats commence the swing around

the spit taking into consideration the limiting point of the Veal

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

boats) that extend into the Channel.

5 8 . A potential solution to the difficulties encountered by

navigators of sailboats in the Channel is to dredge the turning

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

would have more opportunity to enter the Channel straight on

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

5 9 . Some b oats headed for the pond are able to make the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

it did not entirely cure the navigational problems described by

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

cross - examination by Mr. Dunaway:

Now, if the turning radius were expanded, if

the turning basin were dredged out, if the

boats had more room to maneuver, some of [the

navigational problems getting to the pond

from the bayou] could be improved, yes.

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

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

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

Hr'g Tr. 167.

CONCLUSIONS OF LAW

a. Jurisdiction

6 1 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this case and the

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

b. Standing

6 2 . Petitioners Kr ie gel, Baars , and Ed Rankin & Kay Rankin

proved that their substantial interests could reasonably be

affected by the Project. They demonstrated that they have

standing to bring their respective petitions. Palm Beach Cnty .

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

4th DCA 2009).

6 3 . The evidence offered by the three testifying

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

substantial interests could reasonably be affected by the Project

as well.

c. Burden and Standard of Proof

6 4 . As the party seeking the exemption, Mahogany Mill bears

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

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

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

Oct. 21, 2005).

d. Statutes and Rules at Issue

6 5 . To qualify for an exemption for the Project under

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

required to demonstrate that the Project will meet the

qualifications in the statute including that a project will not

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

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

6 6 . Qualification for the regulatory exemption under

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

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

21.005(1)(b) and 18 - 21.004(7)(g).

e. Entit lement to Exemption and Authorization

6 7 . Mahogany Mill demonstrated by a preponderance of

evidence that the Project "will not create a navigational

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

Project does not extend into the Channel more than 24.0 feet

offshore, the same extension into the Channel of the

Preconstruction Mooring Pilings with which no vessel was shown to

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

and out of the Channel.

6 8 . The conclusion that Mahog any Mill is entitled to the

regulatory exemption and the proprietary authorization does not

mean that the concerns of the Petitioners have no foundation.

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

Marina, and the shoals in the area presen ts navigational

challenges particularly to deep draft sailboats seeking ingress

to Mahogany Mill Pond under certain weather conditions.

6 9 . Nonetheless, the preponderance of the evidence clearly

establishes that the Project is no more of a navigational hazard

than the Preconstruction Mooring Pilings. Thus, it does not

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

moreover, to the difficulties in entering the Channel posed by

Petitioners . The solution was presented by the Department

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

the turning basin just before entering the Channel when heading

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

the chances of success.

RECOMMENDATION

Based on the foregoing Fi ndings of Fact and Conclusions of

Law, it is

RECOMMENDED that that the Department of Environmental

Protection issue a f inal o rder determining that Mahogany Mill

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

from the need to obtain an Envir onmental Resource Permit under

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

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

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

Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

Ad ministrative 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 Hea rings

this 11th day of June , 2013 .

ENDNOTE

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

otherwise noted.

COPIES FURNISHED:

Brynna J. Ross, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Robert Kriegel

Apartment 14

1280 Mahogany Mill Road

Pensacola, Florida 32507

William J. Dunaway, Esquire

Clark, Partington, Hart, Larry,

Bond and Stackhouse

Post Office Box 13010

Pensacola, Florida 32591

Bryan Baars

1516 East Mallory Street

Pensacola, Florida 32503

Mike Beard

1280 Mahogany Mill Road, Unit 15

Pensacola, Florida 32507

Ed Rankin

Kay Rankin

Mahogany Mill Homeowners Association

1280 Mahogany Mill Road, Unit 7

Pensacola, Florida 32507

Lea Crandall, Ag ency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Matthew Z. Leopold, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3 900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Al l 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.