89-006051 Charles E. Clarke vs. Floyd F. Melton And Department Of Environmental Regulation Status: Closed Recommended Order on Tuesday, October 16, 1990.

Summary: Dredge and fill permit granted for extended dock although neighbors would be required to alter routes previously used for their recreational boating

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARMS E. CLARKE and JUDITH )

CLARKE )

)

Petitioners, )

vs. ) CASE NO. 89-6051

)

FLOYD E. MELTON, ALICE MELTON, )

and DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondents. )

_________________________________)

)

CLAUDETTE E. TRAURIG, )

)

Petitioner, )

vs. ) CASE NO. 89-6135

)

FLOYD E. MELTON, ALICE MELTON )

and DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M.

Rigot, the assigned Hearing Officer from the Division of

Administrative Hearings, on July 27, 1990, in Key Largo, Florida.

APPEARANCES

For Petitioner: Michael F. Chenoweth, Esquire

31 Garden Cove Drive

Key Largo, Florida 3303

For Respondents James S. Mattson, Esquire and

Floyd and Alice Joseph J. Vetrick, Esquire

Melton: MATTSON, TOBIN & VETRICK

Post Office Box 586

Key West, Florida 33037

For Respondent Cecile I. Ross, Esquire

Department of Assistant General Counsel

Environmental Department of Environmental

Regulation: Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUE

The issue is whether the applicants-respondents Floyd

and Alice Melton have provided reasonable assurances that their

proposed dock meets the requirements of Chapter 403, Florida Statutes (1989) and

Chapter 17, Florida Administrative Code, for

issuance of a dredge and fill permit. Only four issues of

disputed fact are raised by the pleadings in these cases: (1)

whether the project will adversely affect navigation as that term

is used in Section 403.918(2)(a)3., Florida Statutes; (2) whether

the project will adversely affect recreational values in the

vicinity of the project, in the context of the public interest

test of Section 403.918(2)(a)4., Florida Statutes; (3) whether an

increased number of boats at the proposed dock would cause

"pollution" which would violate water quality criteria

promulgated by the Department, and (4) whether the pilings will

harm seagrasses in the vicinity of the dock.

PRELIMINARY STATEMENT

On October 20, 1988, Floyd Melton applied to the

Department of Environmental Regulation for a permit for a 48' by

20' finger pier that had been constructed without a permit, as an

addition to an existing dock, on the northwestern shoreline of

his and Alice Melton's property at Lot 4, Block 2, Buccaneer

Point Estates, on the eastern shore of Florida Bay, in Monroe

County, Florida.

On February 9, 1989, the Department notified Melton, in

an "intent to deny," that an investigation of the bay bottom at

the terminus of the proposed 90' dock revealed the presence of

seagrass communities and less than 5' of water depth. The

Department informed Melton that his after-the-fact permit

application would be denied unless modified, and recommended that

the project be modified to place the terminal end of the dock

275' from mean high water.

Melton then modified the project to extend the terminus

275' offshore, and the Department sent Melton an "intent to

issue" on April 4, 1989. Permit Number 44-156268-5 was issued on

May 31, 1989, and Melton began to construct the dock. On

September 21 and 22, 1989, the Department received letters from

Charles E. Clarke and Claudette Eaurig, in which they

challenged the proposed dock. The letters were treated as

requests for a copy of the agency's final action, and the

Department gave them 14 days to request an administrative

hearing. The Department subsequently received formal petitions

from Clarke and Traurig. After receiving the petitions, the

Department rescinded the permit and notified the applicant that a

formal hearing had been requested. After the petitions were

transmitted to the Division of Administrative Hearings, the two

cases were consolidate

At the start of the hearing, on respondent Floyd Melton's request, the

captions in both cases were amended to add

Alice Melton as a respondent. On motion of Charles Clarke, his

wife Judith Clarke was added to his case as a petitioner. At the

outset of the hearing, the Department and the applicant read a

joint stipulation into the record which had the effect of

modifying the proposed project as follows: the dock would be

T-shaped rather than L-shaped, and the permit would include a

prohibition on mooring boats anywhere except on the waterward

side of the terminal platform.

At a Section 120.57 administrative hearing on a dredge

and fill permit, the applicant has the burden of proof and the

duty to go forward. The Meltons presented the testimony of three

expert witnesses: Earl R. Rich, an expert in the field of

biology; Frederick H. Hildebrandt, an expert in the field of

surveying; and Robert Redman, an expert in the field of

navigation. The Meltons had admitted Exhibits 1-7. Respondent

Department of Environmental Regulation presented the testimony of

two expert witnesses: Deborah L. Charvat, an expert in the

fields of marine biology, benthic systems, and dredge and fill

impacts on marine biology; and Michael W. Dentzau, an expert in

the field of marine biology. The Department's Exhibit 1 was

admitted. Petitioners presented the testimony of two expert

witnesses: Hal Thomas, an expert in the field of surveying; and

Anitra Thorhaug, an expert in the fields of biology and sea-

grasses. Petitioners also testified on their own behalf and

presented the testimony of Deloris Masterangelo, David Eilers,

Trisha Timmons, and Shirley Kopta. Petitioners' Exhibits 1, 2,

5-9, 11, and 16 were admitted in evidence.

All parties submitted post-hearing proposed findings of

fact. A ruling on each proposed finding of fact can be found in

the Appendix to this Recommended Order.

FINDINGS OF FACT

1. An 85' dock perpendicular to the shoreline of the

Meltons' property at Lot 4, Block 2, Buccaneer Point Estates, Key

Largo, was in existence in 1988, some portion of which was

apparently constructed without the benefit of a dredge and fill

permit. On October 20, 1988, Floyd Melton applied to the

Department (hereinafter "DER") for an after-the-fact permit for a

48' x 20' section, as an addition to a previously existing

structure.

2. After DER received the Meltons' permit application,

an agency field inspector visited the site to determine whether

the Meltons' proposed project could be constructed in conformance

with Chapter 403, Florida Statutes, including the "public

interest" tests at Section 403.918(2), and the "Keys Rule," Rule

17-312.420, Florida Administrative Code. The project site is

located in Class III, Outstanding Florida Waters.

3. The relevant factual determinations that DER

personnel had to make at the Melton site, to ascertain compliance

with the Keys Rule, were (a) the water depths, and (b) the

presence or absence of seagrass communities in the proposed boat

mooring area. The proposed 90' dock would have terminated over seagrass

community in less than 5' of water depth.

4. DER informed the Meltons, on February 9, 19890, that

the permit would be denied unless they redesigned the dock to

extend a distance of 275' out from the shore (289' total length),

to where a water depth of 5' existed, limited the dock to a 4'

width, and elevated the access walkway 6 feet above mean high

water, to prohibit mooring along it and to increase light

penetration underneath the dock. The Meltons amended their

permit application to so comply.

5. There are seagrasses under the entire length of the

proposed dock. There are dense seagrass communities at the

terminus of the proposed dock, surrounded by less dense seagrass

communities. Under the boat currently moored near the terminus

of the Meltons' uncompleted dock, there is a dense seagrass bed that is not

adversely affected by the presence of the boat, which

is moored in 5' of water. There is a "halo" of denuded bottom

extending 4-6 inches around each piling, and occasional gouges

that extend beyond the halo, which features are an ordinary and

expected effect of driving pilings into the sea bed.

6. Petitioners' expert's uncontroverted testimony is

that 10 pilings placed in the dense seagrass bed at the end of

the proposed dock would have no effect on the viability of that

seagrass bed, while 100 pilings "would definitely damage" its

viability. The survey introduced by the Meltons shows six

pilings where the terminal platform is to be constructed, and

three more offshore pilings for mooring purposes, for a total of

nine. Other existing mooring pilings shown in the survey,

landward of the proposed terminal platform, are to be removed in

accordance with the permit.

7. The water depth at the end of the Meltons' existing

85' dock is between 3.0' and 3.25', which is comparable to other

existing docks in the area. Fast boats, such as water-skiing

boats and one-person watercraft, operating in shallow water over

a seagrass bed can damage seagrasses by "prop scarring" or by

stirring up sediments. At another dock in the area, where the

water depth is 3.75' at the dock's terminus, there is evidence of

damage to seagrass beds by such prop-scarring. The water depth

at the end of Petitioner Traurig's dock is only 1.67' to 2.0',

necessitating very careful boat operation to prevent damage to

seagrasses.

8. The stipulated modification to the permit allowing

three mooring pilings and requiring mooring waterward of the

terminal platform clarifies DER's understanding that boats would

only be moored on the waterward side of the terminal platform.

No more than one or two boats can reasonably be moored at the

facility. That is no more than could have been moored at the

previous dock; in fact, it is equivalent to the two moored at

Petitioner Traurig's dock.

9. The environmental impact of the proposed Melton dock

would be far less than that of the other docks along this

shoreline, primarily because it causes boats to be operated and

moored in deeper water. Neither the proposed project, nor the

one or two boats that can be expected to moor at the terminal

platform, will have any adverse effect on Florida Bay or the

seagrass communities in the immediate vicinity.

10. The entire area of Florida Bay except for the

shoreline area where the Melton and other docks in the vicinity

are located is open for navigation. It is between 0.4 and 0.5

miles from the end of the proposed dock to the nearest navigation

channel. The proposed dock is not a hazard to navigation in that

nearest channel, the Intracoastal Waterway. It is, however, an

inconvenience and can present a hazard to unwary nighttime

recreational users in the waters next to the shoreline where the

Melton, Clarke, and Traurig docks are located.

11. Petitioners' witnesses' testimony focused on how the Melton dock would

force them to change their usual paths

while recreating in the area, or traveling to and from nearby

docks. Water-skiers and "knee-towers" have had to modify the

route they used to take when water-skiing or knee-towing past the

Melton property, now that much of the dock is in place. Some

boat operators, Petitioners' witnesses included, continue to

operate their boats so close to the Melton dock that near-

collisions take place. A sailor chose to forego landing his

catamaran at a dock near the Melton dock because its presence

would have given him "a hard time getting out." Youngsters on

"hydoslides" and "wet bikes," and in small boats, have passed

landward of the outermost pilings of the uncompleted Melton dock,

literally going under the structure, on several occasions. One

neighbor witnessed three nighttime collisions with the

uncompleted Melton dock by boaters, each of which ended when the

boaters extricated themselves from the pilingsaurig's tenant

next door to the Meltons, when traveling to and from her dock,

complained that "you can't go straight out anymore. You have to

go out and then around. You have to be cautious..." Petitioner

Traurig stated that the Melton dock would "almost cause her to

jump out of her unpowered sailboat and tow it into her dock," as

it would limit her ability to tack in the close confines created

by the new dock. Petitioner Charles Clarke, whose property is

separated from the Meltons by Petitioner Traurig's property,

stated that the proposed dock is "an obstacle essentially to

navigation and enjoyment of that waterway as I used it...," and

that he is prevented from tacking into his dock by the presence

of the Meltons' dock.

12. Buccaneer Point is full of docks. The neighboring

docks are generally approximately 100' long, while the Meltons'

dock that DER proposes to permit will be 289' long, with mooring

pilings and a boat extending this facility between 300' and 310'

offshore. Boaters will be required to avoid this dock while

recreating in the area, and while travelling to and from nearby

docks. The proposed dock will discourage boaters and water-

skiers from traveling through the very shallow waters off the

ends of the other docks in the vicinity, potentially injuring

themselves and the benthic communities.

13. The Melton dock will not cross over the riparian

lines of the Melton property.

14. The project is clearly in the public interest by

preventing ongoing adverse impacts of the existing dock, allowing

the recolonization of habitat in those disturbed areas, and by

extending the dock to prevent the destruction of the bay bottom.

This is accomplished by elevating the dock to 6' and restricting

its width to 4' in order to allow better sunlight penetration

below the dock. This is also accomplished by prohibiting the

mooring of vessels other than seaward of the terminus platform,

thereby keeping vessels in deeper water to prevent additional

destruction of the seagrass beds throughout the area.

15. During the course of the final hearing, the Meltons

and DER entered into several stipulations which will promote the

absence of impact to the seagrass community. They have agreed

that the following conditions will be made part of any permit

issued by DER:

(A) The dock structure will be modified so that

it is T-shaped rather than L-shaped.

(B) The terminal platform and access walkway

will be of the dimensions contained in

DER's "intent to issue."

(C) The access walkway can intersect the terminal

platform at any point along the platform's

40' length.

(D) There will be 3 mooring pilings placed

seaward of the terminal platform.

(E) The permit will restrict the mooring of

vessels to the seaward side of the terminal

platform.

(F) The Meltons will remove the 3 mooring

pilings located to the right of the dock and

2 of the 4 pilings located to the left of the

dock.

(G) The Meltons will not use a water-based barge

in less than 2' of water in connection with

the dock construction or driving or removing

the pilings.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in these

cases. Section 120.57(1), Florida Statutes (1989).

17. The Department of Environmental Regulation has

permitting jurisdiction over the proposed project pursuant to

Chapter 403, Florida Statutes (1989), and Chapter 17, Florida

Administrative Code. Rule 17-312.420, the "Keys Rule," precludes

DER from permitting docks in Monroe County where mooring of boats

will occur in water shallower than -5' MLW where seagrass

communities exist on the bottom.

18. Florida Bay in Monroe County is a Class III Outstanding

Florida Water, and the Meltons may not be issued a permit unless

they provide reasonable assurances that they will not violate

water quality standards and that their project is "clearly in the

public interest." Seven criteria are listed at Section

403.918(2)(a), Florida Statutes (1989), that DER must "balance"

in determining whether a project is clearly in the public

interest. Petitioners only challenged the DER's consideration of

parts of the following two factors: (3) whether the project will

adversely affect navigation; and (4) whether the project will

adversely affect the recreational values in the vicinity of the

project.

19. Reasonable assurances have been given that the project

will not adversely affect any water quality standards, and that

it will affect neither the public interest in navigation nor

public recreation in the vicinity. "Navigation" in terms of the

public interest criteria is primarily associated with the use of

publicly used shipping lanes or channels. "Navigation" and

"recreation" do not mean the preservation of usual recreational

routes or a guaranty of one's former ease of access to and from

one's dock. The boating public will have lost its access to the

area between 100' and 300' offshore under and immediately

adjacent to the Meltons' dock, but this neither affects the

public interest in navigation nor the public interest in

recreational use, as there is a vast area of Florida Bay that is

still available to water-skiers and other members of the public.

The only effect the Meltons' dock has on people like petitioners

and their witnesses is that it forces them to alter their past

routes along the shoreline, which is a minor inconvenience at

most. There is no public interest that is infringed by these

mere inconveniences. West, et al. vs. Ratkovic and DER, DOAH

Case Nos. 89-6363 through 89-6368 (Final Order, July 24, 1990).

20. Each littoral property owner has a right, equal to that

of his neighbors, to wharf out to navigable depths for the

purpose of ingress and egress by water. This right is balanced

by the public interest in preventing pollution, damage to

publicly-managed natural resources such as seagrasses, and

infringement on the general rights of the public to use public

bodies of water for navigation and recreation. The public

interest is protected by Chapter 403, Florida Statutes, and by

Rule 17-312.420, Florida Administrative Code. That rule creates

a presumption that docks which extend out to the 5' depth

contour, where seagrasses are otherwise present, are clearly in

the public interest. The protection of shallow water communities

outweighs the public's right to unfettered use of those areas for

navigation and recreation. No evidence was offered by

petitioners to show that the public interest in navigation, or

the public's right to use public bodies of water for recreational

purposes, will be infringed by the construction of a dock which conforms, in

every respect, to the statutes and rules implemented

by DER. Any potential adverse impacts on petitioners' ability to

navigate among the growing number of docks on Buccaneer Point is

a minor private interest, and the statute provides no guarantee

that such adjustments in courses traveled will not be required in

order to preserve the broader public interest in the environment.

Riverside Club Condominium Association, Inc. et al. vs. Adventure

Construction and Canvas, Inc. and DER, 9 F.A.L.R. 6207 (1987).

The statute does not protect private economic rights; rather, it

is intended to preserve environmental values. Miller v. DER 504

So.2d 1325 (Fla. 1st DCA 1987). As in the Riverside case,

petitioners here oppose the Meltons' exercise of their riparian

rights in the name of protecting petitioners' riparian rights.

21. The Meltons' dock, in its uncompleted state, apparently

attracts daredevil boat operators, who risk themselves, their

passengers, and the people they may be towing by traveling

between the pilings and underneath the structure. These

intentional stunts are not within the ambit of DER to eliminate

by its dredge and fill permit process.

22. Although it has been specifically found that the Melton

dock will not adversely affect navigation or recreational value in the vicinity

of the project, it has also been found that the

Melton dock, which appears to be the first one permitted under

the "Keys Rule" in Florida Bay where Buccaneer Point Estates is

located, does, at this time, project far out into the Bay in

comparison with the other docks in the vicinity which were

permitted before the "Keys Rule" became effective. Although DER

cannot prevent boaters and persons engaging in other water sports

from intentionally doing so in a way which is not safe during the

daylight hours when the dock is clearly visible, the evidence

does indicate that on moonless nights, unwary boaters who are not

familiar with the shoreline in the vicinity of the Melton dock

can place themselves into a hazardous situation. For that

reason, it is strongly recommended that DER also condition the

Melton dock permit with the requirement that the dangers at

nighttime be mitigated by some form of reflective paint or

lighting for that section of the dock which extends beyond the

distance of the other docks in the immediate vicinity.

23. At the commencement of the final hearing in this cause,

the issues were limited to those which had specifically been

raised by petitioners in the Petitions for Formal Hearing and as

a result of petitioners' positions being clarified through

discovery. In addition to the two issues regarding navigation

and recreational values found in the public interest test

criteria, petitioners generally alleged that "pollution" would

result from the increased number of boats which would be moored

at the Melton dock and that the seagrasses would be adversely

affected by the installation of pilings for the dock. Since the

Meltons have stipulated with DER that their permit should be

conditioned upon boats mooring only on the seaward side of the

40' x 4' terminus platform, there will be no increase in the

number of boats mooring at the Melton dock and, a fortiori, there

will be no increase in "pollution." Similarly, all of the

experts who testified in this proceeding, including petitioners'

expert, agree that the only impact from the pilings involve that

area immediately under the pilings and the expected "halo" around

the pilings. Even petitioners' witness testified that the impact

to the seagrass beds from the pilings would not be adverse.

RECOMMENDATION

Based upon the foregoing Findings of Fact and

Conclusions of Law, it is

RECOMMENDED that a Final Order be entered granting the

Meltons' application for a dredge and fill permit, conditioned

upon the stipulations and the mitigative recommendation set forth

in this Recommended Order.

DONE AND ORDERED in Tallahassee, Leon County, Florida,

this __16__day of October, 1990.

LINDA H. RIGOT

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this __16__ day of October, 1990.

APPENDIX TO RECOMMENDED ORDER

DOAH CASE NOS. 89-6051 and 89-6135

1. Petitioners' proposed findings of fact numbered 2, 3, 6, 7, 22d, 22g, 22j,

and 22r have been adopted either verbatim or in substance in this Recommended

Order.

2. Petitioners' proposed findings of fact numbered 1, 22f, 22h, 22i, and 22n-

22q have been rejected as not being supported by the weight of the evidence in

this cause.

3. Petitioners' proposed findings of fact numbered 4, 5, 19, 22a, 22c, 22e,

22i, 22k, and 22m have been rejected as being unnecessary for determination of

the issues in this cause.

4. Petitioners' proposed findings of fact numbered 8-18, 20, 21, 22b, 22s, and

22t have been rejected as not constituting findings of fact but rather as

constituting recitation of the testimony, argument of counsel, or conclusions of

law.

5. The Department's proposed findings of fact numbered 1, 2, 6, 8-10, 12, 14,

15, 17, 19-23, and 26 have been adopted either verbatim or in substance in this

Recommended Order.

6. The Department's proposed finding of fact numbered 3 has been rejected as

not being supported by the weight of the evidence in this cause.

7. The Department's proposed findings of fact numbered 4, 5, and 25 have been

rejected as not constituting findings of fact but rather as constituting

recitation of the testimony, argument of counsel, or conclusions of law.

8. The Department's proposed findings of fact numbered 7, 11, 13, 16, 18, and

24 have been rejected as being unnecessary for determination of the issues in

this cause.

9. Respondents Meltons' proposed findings of fact numbered 1-13 have been

adopted either verbatim or in substance in this Recommended Order.

COPIES FURNISHED:

Michael F. Chenoweth, Esquire

31 Garden Cove Drive

Key Largo, Florida 33037

James S. Mattson, Esquire

Joseph J. Vetrick, Esquire

MATTSON, TOBIN & VETRICK

Post Office Box 586

Key West, Florida 33037

Cecile I. Ross, Esquire

Assistant General Counsel

Department of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Daniel H. Thompson, Esquire

General Counsel

Department of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any ex- ceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.