18-001940 Allen Shanosky, Cynthia Shanosky, And Michaek Steck vs. Town Of Fort Myers Beach And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, November 20, 2018.

Summary: The Town's proposed construction of a small dock will not create a navigational hazard and, therefore, qualifies for an exemption from permitting.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLEN SHANOSKY, CYNTHIA

SHANOSKY, AND MICHAEL STECK,

Petitioners,

vs. Case No. 18 - 1940

TOWN OF FORT MYERS BEACH AND

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondents.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge D. R. Alexander conducted a hearing

in this case on August 23, 2018, in Fort Myers Beach, Florida.

APPEARANCES

For Petitioners: Ralf Gunars Brookes, Esquire

Ralf Brooke s Attorney

Suite 107

1217 East Cape Coral Parkway

Cape Coral, Florida 33904 - 9604

For Respondent: John S. Turner, Esquire

(Town) Peterson Law Group

Post Office Box 670

Fort Myers, Florida 339 02 - 0670

For Respondent : Carson Zimmer, Esquire

(Department) Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The only issue to be resolved is whether a 440 - square - foot

dock to be constructed by the Town of Fort Myers Beach (Town)

creates a navigational hazard and therefore cannot qualify for a

regulatory exemption pur suant to section 403.813(1)(b), Florida

Statutes (2018).

PRELIMINARY STATEMENT

By letter dated July 3, 2017, the Department of

Environmental Protection (Department) informed the Town that it

qualified for an exemption to build a dock at the north end of

He rcules Avenue, in the Matanzas Pass, a Class II Outstanding

Florida Water, and that it qualified for automatic consent by

rule to use sovereign submerged lands.

On March 8, 2018, Petitioners, Allen and Cynthia Shanosky

and Michael Steck, who own property adjacent to the proposed

dock, filed their Verified Petition for Formal Administrative

Hearing (Petition) challenging the agency's determination. The

case was referred by the Department to the Division of

Administrative Hearings for the purpose of conduct ing a hearing .

On April 27, 2018, the case was transferred from former

Administrative Law Judge Canter to the undersigned. The Town's

Motion to Dismiss the Petition on the ground it was untimely

filed was denied by Order dated May 14, 2018.

At the hear ing, Petitioners testified on their own behalf

and jointly presented the testimony of one witness. Also,

Petitioners' Exhibits 1 through 9 were accepted in evidence. The

Town presented the testimony of three witnesses. Town Exhibits 1

through 3 and 5 th rough 10 were accepted in evidence. The

Department presented one witness. Department Exhibits 1 and 2

were accepted in evidence.

A one - volume Transcript of the hearing was prepared.

Proposed findings of fact and conclusions of law were filed by

the pa rties on November 5, 2018, and they have been considered in

the preparation of this Recommended Order.

FINDING S OF FACT

A. The Parties

1. The Department is the state agency having jurisdiction

over the construction and permitting of docks. The Departmen t

also acts as the staff to the Board of Trustees of the Internal

Improvement Trust Fund (Board of Trustees) concerning the use of

sovereign submerged lands owned by the Board of Trustees.

2. The Town is a small municipal corporation located on a

barrier island (Estero Island) just west - southwest of the City of

Fort Myers in Lee County. Matanzas Pass, designated by the

Department as a Class II Outstanding Florida Water, lies between

Estero Island and the mainland.

3. The Shanoskys own property at 177 H ercules Drive,

Fort Myers Beach. The parcel lies on the north side of the

proposed dock. Their home was constructed in 1952, and they are

the second owners. An L - shaped dock extending from the shoreline

into Matanzas Pass was built by the first owner i n the 1970s and

still remains in place. The dock is approximately the same

length (49 feet) as the pier proposed by the Town.

4. Michael Steck owns property on the south side of the

proposed dock at 190 Hercules Drive, Fort Myers Beach. The

parcel was purchased only for boating purposes, as the re is no

residence on the property. An L - shaped dock extending into

Matanzas Pass was in place when he purchased the property in

2001. His dock extends slightly further from the shoreline into

the water than th e proposed new dock.

B. Background

5. Since at least 1944, or long before the Town was

incorporated, a dock extended from the public right - of - way at the

end of Hercules Drive into Matanzas Pass. By 1953, private docks

were located on what are now Petiti oners' properties, directly

adjacent to the public dock. Due to age and weather - related

factors, the public dock deteriorated over time and was

completely removed by the Town in October 2015.

6. The width of Matanzas Pass from shoreline to shoreline

at that point is more than 750 feet, while the navigational

channel is more than 300 feet wide.

7. Over the years, the old Town dock changed configurations

several times. In 2002, the dock was extended to 49 feet beyond

the bulkhead of the shoreline and re mained unchanged until its

removal in 2015.

8. After the dock was removed, a number of residents urged

the Town to build a new dock that will be used for fishing and

viewings. Boats will not be moored at the pier. Except for

Petitioners, all residents i n the area support that effort.

9. Besides multiple neighborhood meetings, several public

meetings were conducted by the Town Council concerning the

construction of a new dock. On May 22, 2017, Mr. Baker, the

former p ublic w orks d irector, sent all area r esidents a letter,

along with a preliminary drawing of the dock. Town Ex. 2. The

letter advised residents that they should contact him if they had

any questions or concerns.

10. Mr. Steck resides in Illinois and only spends two or

three weeks each yea r in Florida. He did not receive a copy of

the letter. The Shanoskys' primary residence at that time was in

New Jersey. Ms. Shanosky testified that they received a copy of

the letter "almost in June, [or] the very end of May." On

June 23, 2017, Ms. Sh anosky emailed Mr. Baker and stated that

they just received the Town's letter and they "DO NOT approve

these plans that were outlined in your May 22, 2017 letter to

us." Town Ex. 1.

11. On May 24, 2017, the Town authorized Mr. Kincaid, its

engineering consultant, to file an application with the

Department. On June 17, 2017, Mr. Kincaid submitted to the

Department a request for verification of an exemption to perform

the following activity:

To install a 440 square foot pier at North

end of Hercules Aven ue, Town of Fort Myers

Beach, Florida 33931 in Matanzas Pass,

Class II Outstanding Florida Waters,

Unclassified for shellfish harvesting,

Lee County.

12. Based on the information provided in the application,

and using the criteria in section 403.813(1) (b), on July 3, 2017,

the Department's Fort Myers District Office issued a letter

informing the Town that pursuant to section 403.813(1)(b) a nd

Florida Administrative Code Rule 62 - 330.051(5)(b), the proposed

activity qualifies for an exemption from the nee d to obtain a

regulatory permit under Part IV of chapter 373 , Florida Statutes .

Dep't Ex. 1. Pertinent to this case was a determination by the

Department that the proposed dock would not create a navigational

hazard.

13. The letter further informed th e Town that while the

proposed activity is located on sovereign submerged lands owned

by the Board of Trustees and requires authorization to use those

lands , the activity qualifies for an automatic consent by rule

pursuant to rule 18 - 21.005(1)(b). That ac tion is not in dispute.

14. The Department's letter did not require the Town to

publish notice of the verification or to provide separate written

notice to the adjoining property owners. Consequently, there is

no evidence that notice of the Department's action was published

or given to Petitioners. They did not learn of the verification

until February 15, 2018, when Ms. Shanosky performed a Google

search and learned that an application had been filed with the

Department and an exemption had been verified . She spoke by

telephone that day with Ms. Mills, the Department's p rogram

p ermitting a dministrator in the Fort Myers office, who confirmed

this action.

15. On February 21, 2018, Ms. Shanosky emailed Ms. Mills

and expressed her objections to the dock. These objections

included not only navigational concerns, but also a fear that,

like the old dock, the new dock would continue to be used by

"nighttime partiers with their litter and noise." 1/ By email

dated February 21, 2018, Ms. Mills provided Ms. Shan osky with

instructions on how to request a hearing. On February 23, 2018,

Ms. Shanosky informed Mr. Steck of the Department's action.

Collectively, they filed their Petition on March 8, 2018.

16. The Petition alleges the dock does not qualify for an

exe mption under section 403.813(1)(b) because: (a) it will

create a navigational hazard by impeding Petitioners' ability to

access their own docks, and (b) it will create a navigational

hazard in the open waters that are contiguous to their docks.

There was no evidence regarding the open waters allegation, and,

therefore, only the first allegation remains in issue. At

hearing, Petitioners testified that if the Town would agree to

shorten the length of the dock by an undisclosed number of feet,

it would reso lve the dispute.

C. The Project

17. The public right - of - way at the end of Hercules Drive is

approximately 47 feet wide. Town Ex. 10. Because the Town has

less than 65 linear feet of shoreline on its right - of - way, the

requirement that the new dock be at least 25 feet from the

riparian lines of adjoining property owners does not apply. See

Fla. Admin. Code R. 62 - 330.051(5)(b)4.

18. A seawall runs along the shoreline in front of

Petitioners ' properties, from which their docks extend into the

water. Un til recently, there was no seawall in front of the

Town right - of - way. As a part of a separate stormwater project,

the Town has backfilled the area between Hercules Drive and where

the adjacent seawall ends and constructed a new seawall to fill

in the gap .

19. The Town has attempted to center the new dock in the

middle of its property. A 30 - foot concrete sidewalk will be

built from Hercules Drive to the new seawall. The dock will

extend approximately 49 feet from the seawall into Matanzas Pass,

which co rresponds to the length of the old dock. The new dock is

comparable in size and consistent in design with other private

docks in the area. It does not extend forward of existing

structures owned by Petitioners into the Matanzas Pass channel.

20. The fir st 25 feet of the dock will be six feet wide,

while the remaining 24 feet will have a 12 - foot, 4 - inch wide

platform, with handrails. Although the new dock substantially

replicates the old dock, the square footage of the terminal

platform has been reduced.

21. The distance between the new pier and the closest part

of the Shanosky dock is 53 feet, while the closest part of the

Steck dock is 52 feet. Except for being a f oot or two closer to

the Shanosky side, this distance corresponds to the separation

wh ich existed before the old dock was removed.

22. The average speed of the current in the area where the

dock will be constructed is 1.45 miles per hour. Except in

stormy weather or when waters are extremely rough, the current

will not create a navigation al concern for Petitioners when

accessing their docks.

D. Petitioners ' Concerns

23. The Shanoskys currently moor a twin - engine, 24 - foot jet

boat at their dock, and their children use two personal

watercraft s . The personal watercraft s will not be impact ed in

any manner by the new dock. Mr. Shanosky, a self - described

recreational boater, is "entertaining the thought" of purchasing

even a larger boat, a 48 - foot trawler, which would require him to

remove one lift on his dock.

24. Mr. Shanosky testified that before the old dock was

removed, mooring his boat was "extremely difficult, challenging,

and hazardous , " and the new dock will make access "dangerous."

But at the same time he admitted that during the 13 years the old

dock with the same dimensions wa s in place, he experienced only

one incident, and this all i sion was caused by a "hard current,"

resulting in the boat striking his own dock. There is no

evidence that during that period, he voiced any concerns to the

Town regarding a navigational hazard.

25. According to Ms. Shanosky, if the new dock is built, it

will be " much harder " to dock their boat, especially if people

are fishing on the pier.

26. Mr. Steck describes himself as a " recreational boater

and racer but not a professional. " He current ly owns a 44 - foot

Trimaran, which has an eight - foot bowsprit and is approximately

30 feet wide. PetÓr Ex. 6. Although the boat has been moored in

Chicago for the last few years, he intends to ship it to Florida

at some time in the future.

27. Mr. Steck ' s boat has a small engine (27 horsepower) and

is very light. He steers with a rudder, which requires him to

have speed when docking his vessel. Without speed, he cannot

steer. If the new dock is constructed, he testified that it will

be a " nerve racking " experience to dock his boat on the inside of

his pier because of the narrow space between the two docks.

However, when he purchased a 44 - foot vessel years ago, he did so

with the knowledge of the old dock, and that he had no more than

52 feet or so of s pace between his dock and the Town's dock.

28. Mr. Steck has docked his boat on both the inside and

outside of his dock. Even when the old dock was in place, he

never experienced a n allision . Mr. Steck agrees that if he docks

on the outside or seaward p art of the pier, there will be no

navigational issues.

29. According to Petitioners ' expert, there is no " margin

of safety " with the new dock, and if the mariner ' s calculations

are slightly off, or there is a sudden gust of wind, it would

" very likely " ca use a collision with the mariner ' s dock or the

new Town pier. However, the record shows that between 2002

and 2015, with the same margin of safety, except for one

incident during a sudden "hard current," neither Mr. Shanosky

nor Mr. Steck experienced a n all i sion.

30. The Town's expert established that the location of the

new dock meets industry standards for boat - maneuvering

requirements between a structure and the opening of a slip

perpendicular to the structure . The standards call for a minimum

sp ace (or width) of 1.5 times the vessel ' s length that would be

moored to the slip. This space between the structure and the

slip is known as the " fairway. "

31. The fairway for the Shanosky ' s 24 - foot boat meets or

exceeds industry standards. If moored o n the inside of his dock,

Mr. Steck ' s 44 - foot vessel with an eight - foot bowsprit will

encroach on the Town ' s riparian right - of - way. 2/ To avoid

encroachment, he must dock his boat on the outside of the pier,

which extends slightly further into the water th an the new Town

dock. When docked in this manner, the fairway meets industry

standards and will not cause any interference.

32. From 2002 until October 2015, the old dock was the same

length and size as the proposed dock. Therefore, Petitioners

will f ac e the same navigational concerns, no more or no less,

than they faced during that 13 - year period.

33. While it may create an inconvenience for Petitioners,

or cause them to be more cautious during ingress and egress from

their docks, the new dock will n ot create a navigational hazard.

CONCLUSIONS OF LAW

34. The facts demonstrate that Petitioners have standing

under chapter 120 to initiate this proceeding.

3 5 . All parties agree that the letter of exemption is a

written determination pursuant to chapt er 403 and is subject to

the burden of proof requirements in section 120.569(2)(p).

There fore , a third party challenging the verification has the

burden "of ultimate persuasion" and the burden "of going forward

to prove the case in opposition to the . . . [verification] ." If

the third party fails to carry its burden, the applicant prevails

by virtue of its prima facie case.

3 6 . Issuance of the verification is dependent upon there

being reasonable assurance that the proposed dock will meet

applicable st atutory and regulatory standards.

3 7 . Reasonable assurance means "a substantial likelihood

that the project will be successfully implemented." See Metro.

Dade Cnty. v. Coscan Fla., Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA

1992). Reasonable assurance doe s not require absolute guarantees

that the applicable conditions for issuing a letter of

verification have been satisfied.

3 8 . As previously found, while the new dock may have minor

adverse effects on navigation and create some inconvenience, it

does not create a navigational hazard. See, e.g. , Woolshlager v.

Rockman , Case No. 06 - 3296 (Fla. DOAH May 7, 2007; FDEP June 20,

2007); Scully v. Patterson , Case No. 05 - 0058 (Fla. DOAH Apr. 14,

2005; FDEP May 12, 2005); Archipelago Comm. Ass'n, Inc. v. Raab ,

Case No. 98 - 2430 (Fla. DOAH Mar. 1, 2000; FDEP Apr. 13, 2000).

3 9 . The Town m ade its prima facie case of entitlement to an

exemption from the requirement that it needed a permit to

construct the dock. Therefore, the burden of ultimate persuasion

is on Petit ioners to prove their case in opposition to the

verification by a preponderance of the competent and substantial

evidence. Having failed to do so, the Town must prevail.

40 . In summary, by a preponderance of the evidence, the

Town has provided reasonable assurance that the proposed activity

will not impede navigation or create a navigational hazard in the

area in and around Petitioners ' docks.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Depar tment of Environmental Protection

enter a final order reaffirming that the Town is entitled to

(1) an exemption from permitting requirements to construct a new

dock , and (2) automatic consent by rule to use sovereign

submerged lands .

DONE AND ENTERED this 20 th day of November , 2018 , in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative 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 20 th day of November , 2018 .

ENDNOTE S

1/ The noise and litter are legitimate concerns. However, these

concerns shou ld be addressed by the Town through law enforcement

measures. They play no role in the regulatory process at hand.

2 / The Town points out that if Mr. Steck ' s vessel encroaches on

the Town ' s riparian right - of - way, this will violate the Town ' s

Land Develo pment Code. While this may be true, it is of no

concern in this proceeding.

COPIES FURNISHED:

Carson Zimmer, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Ralf Gunars Brookes, Esquire

Ralf Brookes Attorney

Suite 107

1217 East Cape Coral Parkway

Cape Coral, Florida 33904 - 9604

(eServed)

John S. Turner, Esquire

Peterson Law Group

Post Office Box 670

Fort Myers, Florida 33902 - 0670

(eServed)

Noah Valenstein, Sec retary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building , Mail Station 35

3900 Commonwealth Bou levard

Tallahassee, Florida 32399 - 3000

(eServed)

Robert A. Williams, General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 3000

(eServed)

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.