77-000960 Stanley Hartson, Et Al. vs. Dnr, Et Al. Status: Closed Recommended Order on Friday, September 16, 1977.

Summary: Easements over submerged sovereignty lands should be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANLEY HARTSON, et. al., )

)

Petitioners , )

)

vs. ) CASE NO. 77-960

)

DEPARTMENT OF NATURAL )

RESOURCES, et. al., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D.

Tremor, Hearing Officer with the Division of Administrative Hearings, in the

City/County Building Auditorium, 123 N.W. Highway 19, Crystal River, Florida,

commencing at 9:30 a.m. on July 27, 1977, and continuing on July 28 and 29,

1977. The captioned matter was consolidated for hearing purposes with Case No.

76-1102 (involving Central Development Company's application with Department of

Environmental Regulation to construct a bridge), Case No. 76-1103 (involving

Florida Power Corporation's application with Department of Environmental

Regulation to install power poles and lines) and Case Nos. 77-849 and 77-850

(involving the application of the Banana Island Recreation Association, Inc. for

a permit from the Department of Environmental Regulation to construct a

boardwalk). Separate recommended orders are being entered for Case Nos. 76-

1102, 76-1103 and 77-849 and 850.

APPEARANCE OF PARTIES

For Petitioners: Kenneth F. Hoffman, Esquire

Post Office Box 1872

Tallahassee, Florida 32302

For Florida David Gluckman, Esquire

Audubon Society: 3348 Mahan Drive

Tallahassee, Florida 32303

For Respondent Kent A. Zaiser, Esquire

Department of Assistant Department Attorney

Natural Department of Natural Resources

Resources: Crown Building

202 Blount Street

Tallahassee, Florida

For Central

Development and

Banana Island Baya Harrison, III, Esquire

Recreation Post Office Box 391

Association: Tallahassee, Florida 32302

For Florida Mr. H. A. Evertz, III

Power Florida Power Corporation

Corporation: Post Office Box 14042

St. Petersburg, Florida 33733

APPEARANCE OF PARTIES FOR

OTHER CONSOLIDATED CASES

For Department Alfred W. Clark, Esquire

of Environmental Assistant General Counsel

Regulation: Department of Environmental Regulation

2562 Executive Center Circle, E.

Montgomery Building

Tallahassee, Florida 32301

ISSUE

The prime issue in this proceeding is whether an easement or other form of

consent from the Board of Trustees of the Internal Improvement Trust Fund is

necessary for the construction, installation and maintenance of three proposed

projects in the King's Bay area of Crystal River and, if so, whether such

consent should be issued by the Trustees.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, as well as a personal view of the premises by the Hearing Officer, the

following relevant facts are found:

1. In January of 1975, Central Development Company, as the owner of the

Mainland Lot 20, Parkers Haven, and the owner of Parker Island, submitted to the

Trustees of the Internal Improvement Fund its application for an easement across

the sovereignty land between these properties in King's Bay, Crystal River. An

application for a permit from the Department of Environmental Regulation to

construct a concrete bridge across this land had previously been submitted. By

letter dated March 16, 1977, Edward H. Cederholm with the Department of Natural

Resources was notified that the Department of Environmental Regulation had

determined that the bridge proposed by the applicant would have no significant

adverse effect on water quality. Representatives from the Department of Natural

Resources had previously concluded, after a biological and hydrographic

assessment, that the bridge in itself would not significantly affect aquatic

biological resources nor would it have significant adverse hydrographic effects.

The Game and Fresh Water Fish Commission had no objection to the bridge itself,

but did express concern over the future development of Parker Island.

2. The request for a right-of-way easement for the bridge construction was

a scheduled item for the Trustees' Agenda for April 7, 1977. The Staff of the

Department of Natural Resources recommended approval of the easement request,

noting that "the executed easement will be provided to the applicant upon

affirmative permitting action by D.E.R." The Trustees deferred action on the

request until a public hearing pursuant to Florida Statutes Section 253.115

could be conducted by the Department of Natural Resources. The Department of

Natural Resources thereafter withdrew its recommendation to the Trustees pending

the outcome of the public hearing. That public hearing was conducted in Crystal

River on September 9, 1977, by the Department of Natural Resources.

3. Having previously submitted an application to the Department of

Environmental Regulation for the installation and maintenance of power poles and

lines on and between Banana and Parker Island in Citrus County, Florida Power

Corporation submitted an application to the Department of Natural Resources for

an easement or other form of consent for the same. Presumably, the public

hearing held on September 9, 1977, included this issue as well as the proposed

bridge issue.

4. No application has been received by the Department of Natural Resources

for the construction and maintenance of a boardwalk by the Banana Island

Recreation Association, Inc.

5. The petitioners herein attempted to present evidence that it would not

be in the public interest for Department of Natural Resources or the Trustees to

grant easements for the bridge, power poles and lines, or boardwalk projects for

the reasons that said projects would:

(a) present a hazard or serious impediment

to navigation in the area;

(b) have an adverse effect upon water

quality and aquatic resources;

(c) endanger an already endangered species -

the manatee; and

(d) deprive waterfront property owners of

their common law riparian rights to an

unobstructed view.

Additionally, petitioners contend that the applicants and Department of Natural

Resources have failed to comply with the provisions of Chapter 253 regarding

sales and conveyances of land, the title to which is vested in the Trustees.

6. The Department of Natural Resources forwarded the requests for hearings

to the Division of Administrative Hearings, and the undersigned Hearing Officer

was duly designated to conduct the hearings. Upon the agreement of all parties,

the hearing in this cause was consolidated with the hearings on the Department

of Environmental Regulation permit applications for the bridge, the power poles

and lines and the boardwalk. The separate recommended orders entered in those

cases contain specific findings of fact concerning the evidence presented at the

hearing relating to the effect of those projects upon navigation, water quality,

aquatic resources, the manatee and riparian rights to an unobstructed view. In

summary, it was concluded that the petitioners failed to present sufficient

evidence that the public interest in these areas would be harmed by the granting

of the Department of Environmental Regulation permits. The reader of this

recommended order is specifically referred to the findings of fact and

conclusions of law contained in the recommended orders entered in Case Nos. 76-

1102, 76-1103 and 77-849 and 850, all of which are attached hereto.

CONCLUSIONS OF LAW

7. As indicated from the evidence adduced in the hearing relating to Case

Nos. 77-849 and 77-850, the property upon which the boardwalk is to be

constructed is privately owned, submerged land. Accordingly, the provision of

Florida Statutes Chapter 253 pertaining to the powers of the Trustees of the

Internal Improvement Trust Fund to convey lands vested in the Trustees or to

give other forms of consent for its use are not applicable to the boardwalk

proposal on Banana Island.

8. The Trustees are vested with ownership of certain state lands and are

charged with the administration, management, control, supervision, conservation,

protection and disposition of such lands. Florida Statutes Section 253.03.

Title to the submerged lands lying between Lot 20 on Parker Haven and Parker

Island, and the submerged lands between Parker Island and Banana Island, are

vested in the Trustees by the provisions of Florida Statutes 253.03(1) and

253.12(1). Therefore, some form of consent from the Trustees authorizing the

use of such lands for the bridge proposal and the power poles and lines project

is mandatory.

9. The power to grant easements on, over or across sovereignty lands would

appear, in the absence of an express statutory or constitutional prohibition, to

be inherent in the power to administer, manage, control and dispose of such

lands. Indeed, such a power is implied in Article X, Section 11 of the Florida

Constitution, wherein after addressing the sale of such sovereignty land, it

states:

"Private use of portions of such lands may

be authorized by law, but only when not

contrary to the public interest."

Also, the authority of the Trustees to grant licenses, easements or other forms

of consent is expressly recognized in Florida Statutes Section 253.77 (1976).

10. The constitutional and statutory test to be applied in acting upon the

applications of Central Development Company and Florida Power Corporation is

whether the proposed projects are contrary to the public interest. In addition,

the various permitting provisions of Chapter 253, as well as Chapter 403,

require that the project or proposed usage not interfere with riparian rights,

not result in a serious impediment to navigation, not interfere with the

conservation of marine, wildlife or other natural resources and not be a source

of air or water pollution.

11. At the hearings involving the Department of Environmental Regulation

applications for permits for the bridge and power poles and lines, petitioners

attempted to demonstrate that such projects would do violence to these riparian,

navigational, and environmental and ecological factors and thus would be

contrary to the public interest. As concluded in the recommended orders entered

in Case Nos. 76-1102 and 76-1103, as well as Case Nos. 77-849 and 77-850,

petitioners failed to demonstrate by competent, sufficient evidence that the

proposed bridge or power lines and poles would:

(a) significantly affect aquatic biological

resources;

(b) significantly cause a direct degradation

of or adverse effect upon the air or water

quality of King's Bay;

(c) create a navigational hazard or result

in a serious impediment to navigation;

(d) have an adverse effect upon the manatee;

or

(e) unreasonably interfere with the common

law riparian right to an unobstructed view.

Having failed to so demonstrate, it must be concluded that the projects are not

contrary to the public interest.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is

recommended that the Board of Trustees of the Internal Improvement Trust Fund

issue to Central Development Company and Florida Power Corporation the required

easements or other forms of consent authorizing the proposed usages of

sovereignty lands as set forth in their applications for the same.

Respectfully submitted and entered this day of September, 1977, in

Tallahassee, Florida.

___________________________________

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings

Room 530, Carlton Building

Tallahassee, Florida

COPIES FURNISHED:

Kenneth F. Hoffman, Esquire

Post Office Box 1872

Tallahassee, Florida 32302

Alfred W. Clark, Esquire

Assistant General Counsel

Department of Environmental Regulation

2562 Executive Center Circle, E.

Montgomery Building

Tallahassee, Florida 32301

Baya Harrison, III, Esquire

Post Office Box 391

Tallahassee, Florida 32302

David Gluckman, Esquire

3348 Mahan Drive

Tallahassee, Florida 32303

Mr. H. A. Evertz, III

Florida Power Corporation

Post Office Box 14042

St. Petersburg, Florida 33733

Kent A. Zaiser, Esquire

Assistant Department Attorney

Department of Natural Resources

Crown Building

202 Blount Street

Tallahassee, Florida

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA

DEPARTMENT OF NATURAL RESOURCES

TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND

STANLEY HARTSON et al. , )

)

Petitioner , )

)

vs. ) CASE NO. 77-960

)

DEPARTMENT OF NATURAL RESOURCES , )

et al., )

)

Respondents. )

_________________________________)

FINAL ORDER

The Governor and Cabinet constituting the Board of Trustees of the Internal

Improvement Trust Fund (hereinafter "Trustees'), consider this matter to take

final agency action pursuant to Chapter 120, Fla. Stat ., and after having

reviewed the Findings of Fact, Conclusions of Law, and Recommendations of the

hearing officer, reviewed the entire record, and heard argument thereon, the

Trustees hereby find as follows:

1. The Trustees approve and adopt the preliminary statement and Findings

of Fact (pp. 1-4) of the Recommended Order of the hearing officer in this case,

No. 77-960, which is attached hereto and incorporated herein. The Trustees also

adopt the Findings of Fact of the Recommended Orders of the hearing officer

entered in Case Nos. 77-849, 77-850, 76-1102, and 76-1103, before the Department

of Environmental Regulation, which are attached hereto and incorporated herein.

2. The Trustees approve and adopt the Conclusions of Law as contained in

the Recommended Order of the hearing officer in this case, No. 77-960, except as

otherwise modified herein, and except that the Conclusions of Law that the

bridge and power poles and lines are not contrary to the public interest, are

expressly reversed.

3. The Trustees hold title to sovereignty submerged lands in trust in a

fiduciary capacity for the benefit of all the citizens of Florida, Jayes v.

Boan, 91 So.2d 795 (Fla. 1957). As provided by Art. X, Section 11, Fla. Const.,

private use of sovereignty submerged lands may be granted by the Trustees when

authorized by law only when not contrary to the public interest. Section 253

03, Fla. Stat., authorizes the Trustees to manage, control and dispose of state

lands including sovereignty submerged lands. Accordingly, while the Trustees

are authorized to grant the requested easements, they are not required by law to

grant them, but exercise broad discretion, except that if granted it must be

shown the requested, easements are not contrary to the public interest.

4. The Trustees conclude as a matter of law that grant of the requested

applications is contrary to the public interest inter alia for the following

reasons:

(a) Many power boats could not use the pass between Parker Island and the

mainland during high tide due to the proposed bridge height of 4 1/2 feet.

Small sailboats and some power boats could not use such pass even with a bridge

height of 6 1/2 feet.

(b ) King's Bay is an area of critical habitat for the manatee, and it is

possible that further development will lessen the chances of offering manatee a

safe and quiet habitat.

(c ) Five to six seaplanes a year use the air space between Parker and

Banana Islands, which use would be prohibited by the power poles and lines.

(d) The sovereignty submerged lands, public waters, and air space of

ding's Bay in the vicinity of the proposed bridge and power poles and lines are

relatively pristine and in a natural state with few man-made facilities

constructed therein. The proposed bridge and power poles and lines constitute

an unnatural visual intrusion on these public resources inconsistent with their

present natural state.

THEREFORE, it is ordered that the application for an easement to use

sovereignty submerged lands for the bridge and the application for consent to

install the power poles and lines are hereby denied. Denial of consent to

install the power poles and lines is made without prejudice to the applicant

resubmitting a revised application for a subaqueous utility easement.

DONE AND ORDERED, at the meeting of the Board of Trustees of the Internal

Improvement Trust Fund in open session at Tallahassee, Florida, on the 2nd of

May, 1978.

___________________________________

Reubin O'D. Askew

Governor

___________________________________

Bruce A. Smathers

Secretary of State

___________________________________

Robert L. Shevin

Attorney General

___________________________________

Gerald A. Lewis

Comptroller

___________________________________

Bill Gunter

Treasurer

___________________________________

Doyle Conner

Commissioner of Agriculture

___________________________________

Ralph D. Turlington

Commissioner of Education

As and Constituting the Board of

Trustees of the Internal Improvement

Trust Fund.

=================================================================

CORRECTED AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA

DEPARTMENT OF NATURAL RESOURCES

TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND

STANLEY HARTSON, et al.,

Petitioners,

vs. CASE NO. 77-960

DEPARTMENT OF NATURAL RESOURCES,

et al.,

Respondents.

___________________________________/

CORRECTED

FINAL ORDER

The Governor and Cabinet constituting the Board of Trustees of the Internal

Improvement Trust Fund (hereinafter "Trustees'), consider this matter to take

final agency action pursuant to Chapter 120, Fla. Stat ., and after having

reviewed the Findings of Fact, Conclusions of Law, and Recommendations of the

hearing officer, reviewed the entire record, and heard argument thereon, the

Trustees hereby find as follows:

1. The Trustees approve and adapt the preliminary statement and Findings

of Fact (pp. 1-4) of the Recommended Order of the hearing officer in this case,

No. 77-960, which is attached hereto and incorporated herein. The Trustees also

adopt the Findings of Fact of the Recommended Orders of the hearing officer

entered in Case Nos. 77-849, 77-850, 76-1102, and 76-1103, before the Department

of Environmental Regulation, which are attached hereto and incorporated herein.

2. The Trustees approve and adopt the Conclusions of Law as contained in

the Recommended Order of the hearing officer in this case, No. 77-960, except as

otherwise modified herein, and except that the Conclusions of Law that the

bridge and power poles and lines are not contrary to the public interest, are

expressly reversed.

3. The Trustees hold title to sovereignty submerged lands in trust in a

fiduciary capacity for the benefit of all the citizens of Florida, Hayes v.

Bowman, 91 So.2d 795 (Fla. 1957). As provided by Art. X, Section 11, Fla.

Const., private use of sovereignty submerged lands may be granted by the

Trustees when authorized by law only when not contrary to the public interest.

Section 253.03, Fla. Stat., authorizes the Trustees to manage, control and

dispose of state lands including sovereignty submerged lands. Accordingly,

while the Trustees are authorized to grant the requested easements, they are not

required by law to grant them, but exercise broad discretion, except that if

granted it must be shown the requested easements are not contrary to the public

interest.

4. The Trustees conclude as a matter of law that grant of the requested

applications is contrary to the public interest inter alia for the following

reasons:

(a) Many power boats could not use the pass between Parker Island and the

mainland during high tide due to the proposed bridge height of 4 1/2 feet.

Small sailboats and some power boats could not use such pass even with a bridge

height of 6 1/2 feet.

(b) King's Bay is an area of critical habitat for the manatee, and it is

possible that further development will lessen the chances of offering manatee a

safe and quiet habitat.

(c) Five to six seaplanes a year use the air space between Parker and

Banana Islands, which use would be prohibited by the power poles and lines.

(d ) The sovereignty submerged lands, public waters, and air space of

King's Bay in the vicinity of the proposed bridge and power poles and lines are

relatively pristine and in a natural state with few man-made facilities

constructed therein. The proposed bridge and power poles and lines constitute

an unnatural visual intrusion on these public resources inconsistent with their

present natural state.

THEREFORE, it is ordered that the application for an easement to use

sovereignty submerged lands for the bridge and the application for consent to

install the power poles and lines are hereby denied. Denial of consent to

install the power poles and lines is made without prejudice to the applicant

resubmitting a revised application for a subaqueous utility easement.

DONE AND ORDERED, at the meeting of the Board of Trustees of the Internal

Improvement Trust Fund in open session at Tallahassee, Florida, on the 2nd of

May, 1978.

___________________________________

Reubin O'D. Askew

Governor

___________________________________

Bruce A. Smathers

Secretary of State

___________________________________

Robert L. Shevin

Attorney General

___________________________________

Gerald A. Lewis

Comptroller

___________________________________

Bill Gunter

Treasurer

___________________________________

Doyle Conner

Commissioner of Agriculture

___________________________________

Ralph D. Turlington

Commissioner of Education

As and Constituting the Board of

Trustees of the Internal Improvement

Trust Fund.