99-000289 Howard Vogel And Eugenia Vogel vs. George Wentworth And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, August 25, 1999.

Summary: Dock and boathouse in an aquatic preserve did not meet the criteria for a noticed general permit and consent to use sovereign submerged lands without changes to its design.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOWARD and EUGENIA VOGEL, )

)

Petitioners, )

)

vs. ) Case No. 99-0289

)

GEORGE WENTWORTH and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

__________________________________)

KENNETH and LYNDA URBAN, )

)

Petitioners, )

)

vs. ) Case No. 99-0290

)

GEORGE WENTWORTH and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER

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

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on May 20 and 21, 1999, in Stuart,

Florida.

APPEARANCES

For Petitioners: Howard K. Heims, Esquire

Virginia P. Sherlock, Esquire

Littman, Sherlock & Heims, P.A.

Post Office Box 1197

Stuart, Florida 34995

For Respondent George Wentworth:

William E. Guy, Jr., Esquire

Law Offices of William E. Guy, Jr.

Post Office Box 3386

Stuart, Florida 34995

For Respondent Department of Environmental Protection:

Ricardo Muratti, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUE

The issue presented is whether Respondent George Wentworth

is entitled to a noticed general permit and consent to use

sovereign submerged lands for a dock and boathouse.

PRELIMINARY STATEMENT

By an unsigned letter dated September 23, 1998, Respondent

Department of Environmental Protection advised Respondent

George Wentworth that his application for a noticed general

permit and consent to use sovereign submerged lands was granted.

By a petition dated January 8, 1999, Petitioners Howard and

Eugenia Vogel challenged the Department's issuance of that permit

and consent to use. On January 10, 1999, Petitioners Kenneth and

Lynda Urban filed their challenge. Both petitions were

transmitted to the Division of Administrative Hearings to conduct

an evidentiary proceeding, and both cases were subsequently

consolidated.

Petitioners testified on their own behalf and presented the

testimony of Melissa Meeker, Bruce Jerner, George Wentworth, and

Phillip H. Owen. Respondent Wentworth testified on his own

behalf and presented the testimony of Roger Baber and

Bruce Jerner. Additionally, Petitioners' Exhibits numbered 1-7,

Respondent Wentworth's Exhibits numbered 1 and 3-19, and the

Department's Exhibit numbered 1 were admitted in evidence.

All parties submitted after the conclusion of the final

hearing proposed recommended orders. Those documents have been

considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. On June 26, 1998, Respondent Wentworth submitted to the

Department an application for a standard general permit to

construct a boardwalk through mangroves on his property on

Hutchinson Island in Stuart, Florida. On August 13, 1998, he

revised his application by expanding it to include a dock with a

U-shaped terminal platform and boat lift. His revised

application was a notice of intent to use a noticed general

permit rather than a standard general permit.

2. The expanded project is in the Indian River Lagoon,

which is classified as an Outstanding Florida Water and is within

the Jensen Beach to Jupiter Inlet Aquatic Preserve (Class II

waters of the State). His revised application form specifically

advised that he was not seeking authorization to use the

sovereign submerged lands over which his project would be

constructed.

3. Bruce Jerner, a Department employee in its Port St.

Lucie office, processed Wentworth's application. He made a site

visit, met with Wentworth's consultant, performed a survey of the

seagrasses in the area of the project site, and placed a stake

for the landward extent of the terminal platform for the dock

which would allow Wentworth to avoid the existing seagrasses.

4. While Wentworth's request for approval was being

processed by the Department, Jerner had several conversations

with Wentworth or his consultant. The project changed several

times as to its dimensions, and Wentworth agreed to give the

Department several extensions of the 30 days the Department had

to object to the project before the noticed general permit would

issue by operation of law. The last extension given would expire

in October 1998.

5. On September 23, 1998, Jerner was about to leave on

vacation. He processed Wentworth's permit application that day,

using the revised drawings submitted by Wentworth that same day.

That day's drawings indicated a rectangular terminal platform

instead of U-shaped and a notation indicating a boathouse and

boat lift. In processing the application with the new drawings,

Jerner did not consider the more stringent standards that apply

in an aquatic preserve and did not consider any requirements of

the local government, Martin County. He prepared a document

which would grant approval by using various forms and piecing

them together. He placed the document in the location for

outgoing mail.

6. Jerner did not have another staff person review the

file, as required by Department procedures. Jerner did not then

have the file reviewed by the administrator of the Department's

Port St. Lucie office, as required by Department procedures.

Although Jerner had the authority to sign a permit when the

Department's administrator was absent from the office, no

evidence was offered at the final hearing in this cause as to

whether Melissa Meeker, the administrator of the office at the

time, was in the office that day or not.

7. The letter received by Wentworth was not signed and

recited the wrong address for the project location. It also

indicated that it was both a permit and an exemption from

permitting. Although Wentworth is a state-certified general

contractor, neither he nor his consultant contacted the

Department to find out why the permit was unsigned, why the

project location was wrong, or why the Department's letter

referred to itself as being both a permit and an exemption.

Further, they did not question why the attachments to the letter

indicated that the project as approved could not be.

8. The September 23, 1998, letter advised Wentworth that he

could protect himself from third-party challenges to his noticed

general permit and consent to use sovereign submerged lands by

publishing notice in a local newspaper and/or by mailing a copy,

by certified mail, to any known interested persons. The letter

advised him that if he did those things, his permit would be

beyond challenge after 21 days. Wentworth did neither.

9. The permit letter mailed by Jerner authorized Wentworth

to use sovereign submerged lands even though Wentworth's

application specifically advised that Wentworth did not want the

State's consent to use its land. The permit letter also

authorized Wentworth to construct a 1,894 square foot single-

family docking structure with a 236' x 4' access pier through

jurisdictional wetlands and open water and a 23' x 50' boathouse

located over the terminal access and mooring area.

10. In December 1998 Wentworth faxed to Jerner a revised

drawing of his dock and attendant structures. That drawing

showed a boat shelter on one side of the access walkway and a

traditional terminal platform on the other. A notation reflected

that the boat shelter was reduced to 16' x 30'. The drawing was

not signed or sealed. It was not accompanied by a request for

modification. In an ensuing conversation Jerner told Wentworth

that the drawing was probably something he could approve if

Wentworth submitted a modification request with a signed, sealed

copy of the drawing. Wentworth never did so. Since no

modification was ever requested, one was never approved.

11. Wentworth commenced construction, and he was contacted

by Petitioners Urban, the adjoining landowners, and by

Petitioners Vogel, nearby landowners. They objected to the very

large structure he was constructing as was evident by the

location and size of the pilings being put in place. They asked

him to decrease the size of his boathouse, but he refused.

12. In January 1999 the Vogels and the Urbans filed

petitions with the Department seeking to have the Department

reverse its approval of Wentworth's noticed general permit and

its consent for Wentworth to use sovereign submerged lands. The

Department contacted Wentworth and requested that he cease all

construction activities until the merits of the petitions could

be determined. Wentworth continued with the construction.

13. On December 31, 1998, Martin County issued a stop work

order against Wentworth's construction project for two reasons:

first, the questions which had been raised by the Urbans and the

Vogels regarding the validity of the Department's permit; and,

second, the electrical work being performed on the project

without a permit from Martin County. Wentworth ignored the

County's stop work order and continued his construction. The

project has been completed.

14. On May 10, 1999, the Department issued a revised letter

correcting the errors in its September 23, 1998, letter. The

address of the project was corrected. The reference to Class III

waters of the State was changed to Class II. The letter added

language to reflect that the dimensions of the project may not be

authorized. The references to an exemption from permitting were

deleted.

15. As constructed, the structure consists of a 236' x 4'

access pier. Toward the end on one side is a 10' x 17'

traditional terminal platform. On the other side is a 16' x 30'

boathouse roof with a boat lift under it. Basically, the outline

of the dock and attendant structures looks like a flagpole that

runs east to west with a small flag at the southwest end and a

large one at the northwest end. The total area that extends from

the end of the access pier (not including the access pier) is

approximately 650 square feet, and the total area for the entire

structure is approximately 1,594 square feet.

16. The access pier ends where the structure becomes wider

than four feet, where the attached roof structure (boathouse or

boat shelter) begins. The terminal platform begins at the

landward extent of the boat shelter. The terminal platform,

which includes both the traditional docking platform and the

boathouse roof, far exceeds 160 square feet. The terminal

platform (which includes the boathouse roof) is connected to the

access pier, is located at the terminus of the facility, is

designed to secure and load or unload a vessel, and is a water-

dependent activity. However, the boathouse roof is not necessary

for Wentworth to gain access to his boat or the water to conduct

water-dependent activities.

17. The dock access pier is not elevated a minimum of five

feet above mean high water.

18. The dock plank spacing is less than one-half inch.

19. The access pier is located over a bed of seagrasses.

The first eighty feet from the landward extent of the mangroves

meets the definition of a Resource Protection Area 1, an area

with the highest level of resources. From that point outward,

there are no seagrasses, but since seagrasses are migratory,

there is the potential for seagrasses absent extensive shading.

The potential for resources under the remaining access pier, the

terminal platform, and the boathouse places that part of the

structure in a Resource Protection Area 2. The boathouse roof is

elevated at least 17' above mean high water and will cast a

shadow over resources in the area. Shading of resources by

structures in an aquatic preserve can adversely impact marine

grass, fish, birds, and benthic organisms.

20. A noticed general permit is a form of regulatory

authorization whereby if all criteria are met, the applicant

qualifies for a regulatory permit without the agency having to

issue a permit. The noticed general permit is not an

authorization to use state lands nor is it linked to the state

lands authorization. Proprietary authorization is a separate

authorization to use state-owned submerged lands. Nonetheless,

the two prongs of authorization are covered by one

document/letter in an effort to streamline the permitting

process. The September 23, 1998, and May 10, 1999, letters to

Wentworth each had attachments which addressed, among other

things, the specific criteria that must be met to qualify for

state lands authorization. The state lands (proprietary)

authorization has more stringent size and design requirements

than the noticed general permit (regulatory) authorization.

Although Wentworth's dock structure meets the criteria for a

noticed general permit, it does not meet the criteria for consent

to use sovereign submerged lands.

21. The completed dock structure is quite visible from the

homes of the Urbans and the Vogels. They had purchased their

homes years before Wentworth constructed his dock and boathouse

and had relied on the pristine character of the water and their

unobstructed view in making their purchases. They relied on the

fact that they were purchasing property in an aquatic preserve

with special protection afforded by the restrictions on

construction in the preserve. The Urbans have a dock and own a

boat which they use on the Lagoon. The Vogels do not have a

boat, but they use the Lagoon as guests of others who own boats.

There are no other boathouses within view of the Vogel or the

Urban properties.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties hereto and the subject matter

hereof. Sections 120.569 and 120.57(1), Florida Statutes.

23. It is undisputed that Wentworth's dock structure

requires three authorizations from the Department: a permit

(regulatory authorization), consent to use sovereign submerged

lands (proprietary authorization), and federal authorization.

The federal authorization for the Wentworth dock structure is not

at issue in this proceeding.

24. There is disagreement among the parties as to whether

the September 23, 1998, letter mailed by the Department

constitutes final agency action not subject to challenge by the

Petitioners in this proceeding, an argument asserted by

Wentworth. The Department argues that the September 23, 1998,

letter was valid preliminary agency action and, if not, Wentworth

received a default noticed general permit by the Department's

failure to act before its deadline expired. Petitioners argue

that only preliminary agency action has taken place.

25. It is uncontroverted that the September 23, 1998,

letter was not processed as required by the Department's

procedures. A second staff member did not review the project,

and the administrator of the office did not review the project.

Although it was Jerner's intent to approve the project as

proposed on that date, that intent only constituted one part of

the three-part approval process required by the Department.

26. It is clear from the evidence that the letter was

mailed by mistake since the review process was not concluded.

The letter itself contained so many obvious mistakes--the lack of

a signature, the wrong location for the project, the conflict

between whether a permit or an exemption was being approved, and

the conflict between the letter and the attachments as to the

dimensions the project could have--that any reasonable person,

especially a state-certified contractor, should have known the

purported permit was not valid.

27. Even if the September 23, 1998, letter is considered to

have been a valid permit, it advised Wentworth that it was

subject to challenge unless he published notice of its issuance

and/or served copies, by certified mail, on all known interested

persons. He chose not to do so. Therefore, upon challenge, the

permit became only preliminary agency action.

28. If the September 23, 1998, letter is not considered to

have been a valid permit, then Wentworth received a noticed

general permit by operation of law once the Department's deadline

for objecting to his application had passed. However, Wentworth

could not receive by default the required consent to build his

dock structure over sovereign submerged lands since his

application clearly stated that he was not requesting consent to

use sovereign submerged lands. Wentworth could not be granted by

default something he had not requested. Moreover, Wentworth did

not publish notice, and any default permit was, therefore, still

subject to challenge.

29. Accordingly, it matters little whether the

September 23, 1998, letter was a valid permit or not or whether

the noticed general permit issued by default or by letter.

Either way, Wentworth's failure to publish notice makes his

noticed general permit only preliminary agency action, subject to

challenge. Further, since Wentworth needs both a general permit

and authorization to use sovereign submerged lands, a general

permit alone has no value since Wentworth did not seek the

equally-necessary consent.

30. Petitioners have standing to challenge Wentworth's

noticed general permit and consent to use, and they have timely

filed their petitions. They are adjoining landowners and nearby

landowners who use the Lagoon and are substantially affected by

the project in that Rule 18-20.001, Florida Administrative Code,

sets forth the requirement that sovereignty lands within an

aquatic preserve must be maintained in essentially their natural

and existing condition in order to preserve their aesthetic,

biological, and scientific values.

31. Wentworth, as the applicant, has the burden of proving

entitlement to the noticed general permit and consent to use

which he seeks. Department of Transportation v. J. W. C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). Wentworth has

failed to carry that burden for the dock structure design as

submitted to the Department or as constructed.

32. Wentworth could qualify for a noticed general permit

for the dock structure because it is designed to moor two boats,

is less than 2,000 square feet, and has sufficient depth for

mooring and navigation purposes. Rule 62-341.427(1)(a), Florida

Administrative Code. But he must elevate the access pier a

minimum of five feet above mean high water to meet the remaining

noticed general permit criteria. Rule 62-341.427(2)(a).

33. The dock and access pier involve activity on sovereign

submerged lands as defined in Rule 18-21.003(50), Florida

Administrative Code, subject to the requirements of

Chapter 18-21. However, the dock is located in an aquatic

preserve and is, therefore, governed by the more stringent design

rules located in Chapter 18-20, Florida Administrative Code. See

Section 258.42(3)(e), Florida Statutes.

34. State consent to use sovereign submerged lands is

required for Wentworth's dock structure. Rule 18-21.005(1),

Florida Administrative Code, provides that a person may obtain

state consent to use if the dock is no more than the minimum

length and size necessary to provide reasonable access to

navigable water. Wentworth's boathouse is not necessary for him

to gain reasonable access to navigable water.

35. Rule 18-20.004(5)(a)(4), Florida Administrative Code,

requires that all docks in an aquatic preserve Resource

Protection Area 1 and 2 must have wood planking no wider than

eight inches and spaced no less than one-half inch apart after

shrinkage. Wentworth's dock has wood planking spaced less than

one-half inch apart after shrinkage.

36. Rule 18-20.004(5)(a)(5), Florida Administrative Code,

requires that the main access dock be elevated a minimum of five

feet above mean high water. Wentworth's dock is not elevated a

minimum of five feet above mean high water.

37. Rule 18-20.004(5)(b)(2), Florida Administrative Code,

which is more specific for private residential single-family

docks, requires that the dock decking design and construction

ensure maximum light penetration, with full consideration of

safety and practicality. Wentworth's dock does not meet the

requirements of this Rule because it is not elevated a minimum of

five feet above mean high water, the terminal platform exceeds

160 square feet, and the terminal platform exceeds eight feet in

width.

38. Rule 18-20.004(5)(b)(6), Florida Administrative Code,

which is more specific for private residential single-family

docks, requires that the terminal platform size be no more than

160 square feet. Wentworth's terminal platform exceeds 160

square feet for just the south section of the terminal platform

even if the northern roofed facility is not considered.

39. The northern roofed facility must be considered as part

of the terminal platform, however. Rule 18-20.003(67), Florida

Administrative Code, defines terminal platform to mean

. . . that part of a dock or pier, including

finger piers, that is connected to the access

walkway, is located at the terminus of the

facility, and is designed to secure and load

or unload a vessel or conduct other water

dependent activities.

Rule 18-20.003(19) defines a dock as "a fixed or floating

structure, including moorings, used for the purpose of berthing

buoyant vessels either temporarily or indefinitely." Finally,

Rule 18-20.003(72) provides that:

'Water dependent activity' means an activity

which can only be conducted on, in, over, or

adjacent to, water areas because the activity

requires direct access to the water body or

sovereignty lands for transportation,

recreation, energy production or

transmission, or source of water and where

the use of the water or sovereignty lands is

an integral part of the activity.

40. Reading these definitions together, it is clear that

any structure used for berthing vessels is part of the dock. The

roof and boat lift are part of the dock, are connected to the

terminus of the access pier, and are designed to secure or load

and unload a vessel. Furthermore, the roof and boat lift fall

within the meaning of a water dependent activity.

41. Accordingly, the Wentworth traditional docking area to

the south terminus and the boathouse roof and associated boat

lift to the north terminus are all part of the terminal platform

because they are all connected to the access walkway, are located

at the terminus of the facility, and are designed to secure and

load or unload a vessel or conduct other water dependent

activities. Thus, the terminal platform begins once the access

pier meets with the connected roof structure. Wentworth's

arguments that the boathouse is not part of the terminal platform

must fall. Indeed, if it were not part of the terminal platform,

it could not be built since only a terminal platform is allowed.

42. Rule 18-20.004(7), Florida Administrative Code,

requires that the Indian River Lagoon ( Vero Beach to Fort Pierce

and Jensen Beach to Jupiter Inlet) Aquatic Preserve Management

Plan be followed. Wentworth's dock violates that Rule because

the dock design and construction do not ensure maximum light

penetration, the terminal platform size is in excess of the

maximum 160 square feet, and the terminal platform exceeds eight

feet in width.

43. Rule 18-21.004(2)(b), Florida Administrative Code,

prohibits the Department from granting authorization to use

sovereign submerged lands unless the applicant has provided

reasonable assurance that the project will not result in

significant adverse impacts to sovereignty lands and associated

resources. Wentworth has not provided such assurance due to the

increased impacts from the shading by the large terminal

platform.

44. Wentworth argues entitlement to the doctrines of

equitable estoppel and administrative finality because he relied

on the September 23 letter as a valid permit and acted on it.

Wentworth's arguments are not persuasive. Had he relied on the

letter constituting a valid permit, he would have heeded its

warning that he could extinguish third-party challengers' rights

by publishing notice of his permit or by mailing notice, by

certified mail, to all known interested persons. He chose to not

do so and, therefore, cannot now complain because the right to

challenge his permit was not extinguished. Further, his right to

rely evaporated when he was informed of the filing of the

petitions, yet chose to construct his docking structures at his

own risk. Lastly, Wentworth ignores the fact that what he

constructed was beyond that authorized by the September 23

letter, specifically, the additional traditional terminal

platform on the south terminus of the access pier.

45. There are changes which Wentworth can make to his dock

structure to be entitled to both a noticed general permit and the

required consent to use state sovereign submerged lands.

Wentworth could remove the roof, remove either the southern or

northern terminal platform, and reduce the other platform to

160 square feet, not exceeding eight feet in width. Furthermore,

the deck plank spacing must be at least one-half inch wide, and

the access pier must be elevated to five feet above mean high

water. Without these modifications, the Department will not have

reasonable assurance that the resources in this aquatic preserve

will not be adversely impacted. Although the Department suggests

that the roof could be reduced in size to 160 square feet and

moved so it is over whichever terminal platform Wentworth

retains, the roof itself causes extra shading not necessary for

Wentworth to store, load, or unload his boat, and not necessary

for Wentworth to access the water or conduct water dependent

activities. Removing the roof (boathouse) complies with the

requirement that adverse impacts be minimized in aquatic

preserves.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered granting

Wentworth's application for a noticed general permit and for

consent to use sovereign submerged lands conditioned on the

entire terminal platform not exceeding 160 square feet, the

entire terminal platform not exceeding eight feet in width, the

deck plank spacing being at least one-half inch wide, and the

access pier being elevated to five feet above mean high water.

If Wentworth is not willing to meet such conditions, his

application for a noticed general permit and consent to use

should be denied.

DONE AND ENTERED this 25th day of August, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of August, 1999

COPIES FURNISHED:

Howard K. Heims, Esquire

Virginia P. Sherlock, Esquire

Littman, Sherlock & Heims, P.A.

Post Office Box 1197

Stuart, Florida 34995

William E. Guy, Jr., Esquire

Law Offices of William E. Guy, Jr.

Post Office Box 3386

Stuart, Florida 34995

Ricardo Muratti, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

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.