96-003708 Miami Beach Rod And Reel Club vs. Department Of Environmental Protection Status: Closed Recommended Order on Monday, March 31, 1997.

Summary: Applicant failed to meet standard as existing dock provides access and expansion not clearly in public interest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI BEACH ROD AND )

REEL CLUB, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-3708

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its designated Administrative Law Judge, J. D. Parrish, held a

video teleconference hearing in the above-styled case on December

9, 1996, with the parties appearing in Miami and Tallahassee.

APPEARANCES

For Petitioner: Stephen E. Tunstall, Esquire

Stephen E. Tunstall, P.A.

2701 Southwest LeJeune Road, Suite 410

Coral Gables, Florida 33134

For Respondent: Jeffrey Brown

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a consent to use sovereign

submerged lands.

PRELIMINARY STATEMENT

This case began on July 1, 1996, when the Department of

Environmental Protection (Department or DEP) gave notice of its

intent to deny the consent to use sovereign submerged lands for

the activity proposed by Petitioner. On or about October 20,

1995, Petitioner, Miami Beach Rod and Reel Club, Inc. (MBRRC),

applied for an environmental resource permit and requested

authorization to use sovereign submerged lands in order to

construct two finger piers and to install twelve mooring piles

for its private yacht club.

The Department’s denial of the application cited provisions

of Rules 18-18.006 and 18-21.004, Florida Administrative Code ,

and alleged:

(1) the construction of the activity is

inconsistent with the management policies,

standards and criteria of sections(s) 18-

21.004 and 18.006, F.A.C. The applicant has

not provided reasonable assurance that the

activity will be “not contrary to the public

interest,” will maintain essentially natural

conditions, will not cause adverse impacts to

fish and wildlife resources or public

recreation or navigation, and will not

interfere with the riparian rights of

adjacent property owners. In addition, the

project is inconsistent with the goals and

objectives of the “Conceptual State Lands

Management Plan” adopted by the Board of

Trustees on March 17, 1981.

(2) the construction of the activity is

inconsistent with Section of [sic] 18-18.006,

F.A.C., in that no further use, sale, lease

or transfer of interest in sovereignty lands

in the preserve shall be approved or

consummated by the Board of Trustees, except

upon a showing of extreme hardship on the

part of the applicant and a determination by

the Board of Trustees that such sale,

transfer or lease is in the public interest.

Thereafter, on July 17, 1996, the Petitioner timely filed a

petition for administrative proceeding. Such petition contested

the proposed denial and argued that leasing the sovereign

submerged land “will clearly [sic] it be in the public interest

and the inability to lease the sovereign submerged land would

constitute an extreme hardship for the Miami Beach Rod and Reel

Club."

The case was forwarded to the Division of Administrative

Hearings for formal proceedings on August 8, 1996. By notice

entered September 17, 1996, the case was scheduled for hearing.

At the hearing Petitioner presented testimony from the

following witnesses: Craig Grossenbacher, Susan Markley, Suzan

Baker, Stephen Tunstall, Larry Leibowitz, and David Ettman.

Petitioner’s exhibits numbered 1 through 4 have been admitted

into evidence.

Respondent offered testimony from Donald Keirn.

Respondent’s exhibits numbered 2 and 4 were admitted into

evidence.

The transcript in this matter was filed on December 30,

1996. Thereafter Petitioner requested leave to late-file a

proposed recommended order. Such request has been granted.

Petitioner’s proposed recommended order was filed on February 18,

1997. All proposed orders have been considered in the

preparation of this order.

FINDINGS OF FACT

1. MBRRC filed an application for an environmental resource

permit and authorization to use sovereign submerged lands located

in the Biscayne Bay Aquatic Preserve (BBAP). This application

sought approval to construct two finger piers and to install

twelve mooring pilings for the benefit of a private yacht club.

The application was filed with the Department for review on

October 20, 1995.

2. The Petitioner’s property is located on Hibiscus Island,

a man-made island within the BBAP, and is accessed by boat. The

island is primarily used for residential purposes. Petitioner’s

facility is the only commercial docking facility on the island.

3. Petitioner owns approximately 140 feet along the

waterfront with its property line extending 20 feet seaward of

the upland property. It has an existing dock which is

approximately 10 feet wide that runs the length of, and parallel

to, the seawall along its waterfront.

4. The proposed finger piers would extend waterward and

perpendicular to the existing dock from its ends. This extension

proposes to use approximately 16 feet into the sovereign

submerged land at the ends and would also allow the installation

of 12 mooring pilings between the piers. The ultimate purpose of

the installation is to allow perpendicular docking.

5. At all t imes material to this case the Department has

considered the proposed construction to be a new facility subject

to the requirements of Section 258.397(3)(a), Florida Statutes ,

and Rule 18-18.006(3), Florida Administrative Code . No existing

structures at the site would qualify the applicant for the type

of lease proposed .

6. The Petitioner annually hosts numerous fishing and

social events at its club facility. Participants typically

“raft” vessels together in order to gain access to the shore.

Historically this process has moored vessels parallel to the

existing dock/seawall. This “rafting” would not necessarily be

eliminated by the addition of the proposed finger piers.

7. Petitioner seeks to expand the docking facility as

requested in order to provide better ingress and egress to its

property. It contends that fishing and boating in the BBAP will

be enhanced by such improvements.

8. Petitioner maintains its property is being treated

differently than others; however, policies used by the

Department in this instance are applicable to all areas of the

BBAP.

9. By letter dated February 6, 1996, the Department advised

the Petitioner that staff would recommend denial of the

application. That letter advised Petitioner of the “extreme

hardship” test found in Rule 18-18.006(3), Florida Administrative

Code as well as Section 258.397(3)(a), Florida Statutes . The

letter noted that this standard was “at best very difficult to

demonstrate” and advised Petitioner of the “public interest”

requirement also set forth by rule and statute.

10. “Self-imposed circumstances” as used in the applicable

rule has been construed to include circumstances where the

applicant seeks to improve existing boat access, to increase the

number of docking slips, and to enhance the upland property.

11. The Board of Trustees of the Internal Improvement Trust

Fund (Board of Trustees) has determined that the construction of

single-family docks meets the “extreme hardship” test because

single-family docks are considered to be the lowest impact use

available on sovereign submerged land. It is deemed appropriate

to allow a qualified right of ingress and egress to the upland

owner.

12. The Petitioner’s proposal is not a public project or a

public necessity. Petitioner currently has ingress and egress to

its upland property.

13. The Petitioner’s property is a nonconforming use in a

residential area.

14. The term “property owners in the area” has been

construed to mean the BBAP.

15. The proposed project is not unique to the applicant,

and the burden to the applicant is shared by other property

owners in the BBAP. The proposed project would provide

additional access to an upland property owner who already has

boat access to the waterway. Neither the project site nor the

island on which it is located are unique as other properties of a

similar nature are within the BBAP.

16. In order to establish that a proposed project is “in

the public interest,” applicants are required to demonstrate that

the activity would improve either public recreation, water

quality, fish hatcheries, or other matters of public interest.

17. In this instance, Petitioner did not submit a written

proposal to support the public interest requirement during the

application process. Consequently, DEP has not assessed such

proposal for its quantity or quality.

18. Petitioner relies on its improved boating access to

support a claim of enhancement to public recreation.

19. As to water quality, fish hatcheries, or other matters

of public interest, the proposed project would adversely affect

seagrasses and other environmental resources by shading.

20. Although the installation of mooring pilings would

provide some environmental benefit, those benefits would not be

quantifiable and would be offset by increased shading from the

project.

21. Other proposals submitted by Petitioner incidental to

its Dade County permit application are insufficient in detail and

scope to show the public interest requirement would be met.

22. The proposed project is located in an area that is

intermediate between the most sensitive and least sensitive

sites, for the purpose of manatee protection. The proposed

project would have an adverse environmental impact on manatee

protection since it creates additional docking slips and

additional boat traffic.

23. The proposed project would result in environmental

costs through the loss of resources and increased turbidity.

24. The proposed project would provide no quantifiable

economic benefit to the public, but would provide some economic

cost in the loss of habitat and food source for fisheries.

25. The proposed project would provide no social benefits

different from those presently provided by the existing facility.

26. The benefit of the proposed project is merely

enhancement of the Petitioner’s current use at a cost of lost

fisheries, increased danger to manatees, and increased turbidity.

CONCLUSIONS OF LAW

27. The Department is delegated the responsibility of

enforcing the rules of the Board of Trustees for the purpose of

proprietary authorizations on sovereign submerged lands in

conjunction with applications for environmental resource permits.

See Rule 18-21.0051, Florida Administrative Code .

28. As an applicant for authorization to use sovereign

lands, the Petitioner bears the ultimate burden of persuasion to

establish its entitlement throughout all proceedings, of whatever

nature, until such time as the Department takes final agency

action. Cordes v. Department of Environmental Regulation , 582

So. 2d 652, 654 (Fla. 1st DCA 1991) (citing Department of

Transportation v. J.W.C. Co. , 396 So. 2d 778, 787 (Fla. 1st DCA

1981)).

29. Petitioner’s proposed project requires a lease of

sovereign submerged lands which must be approved as set forth in

Rule 18-18.006, Florida Administrative Code .

30. Because the proposed project is located within the

BBAP, it can not be approved “except upon a showing of extreme

hardship on the part of the applicant and a determination . . .

that such sale, transfer or lease is in the public interest.”

Section 258.397(3)(a), Florida Statutes (1995).

31. Criteria for projects within the BBAP are different

from those for other projects located on other sovereign

submerged lands, particularly with respect to the “extreme

hardship” provision. Rule 18-18.006(3), Florida Administrative

Code , provides in pertinent part:

(b) There shall be no further use, sale,

lease, or transfer of interests in

sovereignty submerged lands unless an

applicant affirmatively demonstrates

sufficient facts to support a finding by the

board that :

(i) An extreme hardship exists for the

applicant at the time the application is

filed; and

(ii) The use, sale, lease, or transfer of

interest and the project planned in

conjunction with the use, sale, lease, or

transfer of interest is in the public

interest ; and

(iii) The project planned in conjunction

with the use, sale, lease, or transfer of

interest is consistent with these rules and

management plans when developed for the

preserve; [emphasis added.]

This project, like projects located within other aquatic

preserves requires an affirmative showing of “public interest.”

Rule 18-18.006(3), Florida Administrative Code . The “extreme

hardship” requirement is not generally required for projects in

other aquatic preserves, but is imposed by statute for the BBAP

in particular. See Section 258.397(3)(a), Florida Statutes

(1995).

32. Under rules governing the BBAP, the applicant must

affirmatively demonstrate that an extreme hardship exists for the

applicant at the time the application is filed and the project is

in the public interest.

33. Rule 18-18.004(11), Florida Administrative Code defines

“extreme hardship” as:

a significant burden, unique to the applicant

and not shared by property owners in the

area. Self-imposed circumstances caused to

any degree by actions of any person

subsequent to the enactment of the [Biscayne

Bay Aquatic Preserve] Act shall not be

considered as an extreme hardship. Extreme

hardship under this act shall not be

construed to include any hardship which

arises in whole or in part from the effect of

other federal, state or local laws,

ordinances, rules, or regulations. The term

may be inherent in public projects which are

shown to be a public necessity.

34. Section 258.397(5), Florida Statutes provides for

reasonable improvement for ingress and egress. In this instance

Petitioner already enjoys ingress and egress to its property.

Its desire to improve that access is not unique. Petitioner has

not demonstrated a significant burden unique to the applicant and

not shared by other property owners in the BBAP.

35. Rule 18-18.004(20), Florida Administrative Code defines

“public interest” as:

. . . environmental, social, and economic

benefits which would accrue to the public at

large as a result of a proposed action, and

which would clearly exceed all demonstrable

environmental, social and economic costs of

the proposed action. In determining the

public interest in a request for use, sale,

lease, or transfer of interest in sovereignty

lands or severance of materials from

sovereignty lands, the board shall consider

the ultimate project and purpose to be served

by said use, sale, lease, or transfer or

severance of materials. (Emphasis added)

36. The Petitioner has presented no evidence of

demonstrable environmental benefits that would accrue to the

public at large as a result of the project.

37. Moreover, Petitioner has not sustained its burden of

proving any demonstrable environmental, social or economic

benefits which would accrue to the public at large that would

clearly exceed all environmental, social, and economic costs of

the proposed project.

RECOMMENDATION

Based on the foregoing,

RECOMMENDED:

That the Department of Environmental Protection enter a

final order denying Petitioner’s request for authorization to

lease sovereign submerged land.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this

31st day of March 1997.

___________________________________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of March 1997.

COPIES FURNISHED:

Stephen E. Tunstall, Esquire

Stephen E. Tunstall, P.A.

2701 Southwest LeJeune Road

Suite 410

Coral Gables, Florida 33134

Jeffrey Brown, Esquire

Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Office of the General Counsel

Department of Environmental

Protection, Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom

General Counsel

Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

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.