99-000501 Fred Braid And Julie Braid vs. James Rosasco, Carol Rosasco, And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, July 1, 1999.

Summary: Applicants met conditions for Noticed General Permit and Consent of Use for single-family dock in spite of riparian boundary dispute which must be resolved in local circuit court and cannot be resolved by the Department or Administrative Law Judge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED AND JULIE BRAID, )

)

Petitioners, )

)

vs. ) Case No. 99-0501

)

JAMES AND CAROL ROSASCO, and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly-designated administrative law judge, Mary Clark, held

a formal hearing in the above-styled case on May 19, 1999, in

Viera, Florida.

APPEARANCES

For Petitioners: Fred Braid, pro se

4720 Highway A1A

Melbourne Beach, Florida 32951

For Respondents James and Carol Rosasco:

James Rosasco, pro se

4680 Highway A1A

Melbourne Beach, Florida 32951

For Respondent Department of Environmental Protection:

Thomas I. Mayton, Jr., Esquire

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue for disposition in this case is whether the

Respondents, James and Carol Rosasco, qualify for a Noticed

General Permit pursuant to Rule 62-341.427, Florida

Administrative Code, and a Consent to Use pursuant to

Rule 18-21.005, Florida Administrative Code, for a single-family

dock, on the Indian River in Brevard County, Florida.

PRELIMINARY STATEMENT

On November 23, 1998, the Rosascos gave notice to the

Department of Environmental Protection ( DEP) of their intent to

use a Notice General Permit ( NGP) under Rule 62-341.427, Florida

Administrative Code, and requested authorization from the Board

of Trustees of the Internal Improvement Trust Fund (Trustees),

through DEP, to use sovereign submerged lands pursuant to Rule

18-21.005, Florida Administrative Code, to remove an existing

200-foot dock and construct a 325-foot single family dock with a

10 by 16-foot terminal platform in the Indian River within an

aquatic preserve.

On December 23, 1998, DEP provided a notice of general

permit to the Rosascos stating that the project met the

requirements for an NGP and the consent of use.

On January 20, 1999, adjoining property owners, Fred and

Julie Braid timely filed their petition challenging the DEP's

decision on the Rosasco project. The case was then transferred

to the Division of Administrative Hearings for conduct of an

evidentiary hearing.

The Rosascos modified the proposed project on March 31,

1999, in an attempt to accommodate riparian rights concerns of

the Braids. This revised proposal was the subject of the

evidentiary hearing conducted as described above.

James Rosasco testified and presented eight Exhibits, marked

and received in evidence as Rosasco Exhibits numbered 1-8. DEP

presented the testimony of Brian Poole. Fred Braid testified and

presented two Exhibits. Braid Exhibit numbered 1, a survey, was

received in evidence over objection; Braid Exhibit numbered 2,

agency "guidelines" was marked for identification only and was

rejected.

The transcript was not prepared. The parties submitted

Proposed Recommended Orders on May 28 and June 1, 1999. These

have been considered with all the evidence of record in the

preparation of this recommendation to the agency.

FINDINGS OF FACT

1. The Rosascos (James and Carol) own a parcel of real

property on the Indian River at 4680 Highway AIA in Melbourne

Beach, Brevard County, Florida (4680). The shoreline on the west

of the Rosasco's property is more than 65 linear feet.

2. The parcel just south of the Rosasco's property is at

4690 Highway AIA (4690). It was recently owned by a subsidiary

of Disney and was used as an executive retreat.

3. There is an existing dock at 4680, approximately 200

feet long, close to the upland boundary of 4680 and 4690, but

extending southwest. The prior owner of 4680 and the Disney

subsidiary had an agreement that allowed both to use and maintain

the dock. The agreement was not renewed when the Rosascos

purchased 4680. The Rosascos immediately made plans for a

replacement dock and submitted the application that is the

subject of this proceeding.

4. Fred and Julie Braid own the parcel just south of 4690,

at 4720 Highway AIA (4720). They have an approximate 280-foot

long dock which runs straight west from their shoreline.

5. In October 1998, Disney Realty, Inc., advertised 4690

for sale by bids. In December 1998, the Braids purchased the

4690 parcel with knowledge of ownership and configuration of the

existing dock at 4680.

6. After DEP issued its intent to grant their Noticed

General Permit and Consent of Use for the Rosasco's 325-foot

replacement dock. The Braids challenged the decision in January

1999.

7. The Braids' two parcels and Rosasco's property are in a

shallow cove area of the Indian River. Long docks are necessary

there to provide boat access and to avoid seagrasses that are

close to shore.

8. The Braids are primarily concerned that if the Rosascos

are allowed to construct their replacement dock there will be no

room for the Braids to place a dock on their newly-acquired 4690

parcel.

9. The Braids' Petition for Administrative Hearing and

challenge to DEP's intended action is in letter form and raises

four basic concerns:

a. the proximity of the proposed dock to 4690;

b. whether the proposed dock would preclude the Braids'

placing their own dock on 4690;

c. possible damage to seagrasses; and

d. problems with navigation.

10. In order to address the Braids' concerns, the Rosascos

modified their application on March 31, 1999. The revised

proposal increases the length of the dock from 325 feet to 500

feet and situates the dock to run north of the existing dock and

parallel to that dock (which will be removed). The revised

proposal has the new dock terminal starting 25 feet north of the

property line and purported riparian line. The revised proposal

would result in a minimum of 50 feet clearance between the new

dock and the terminal platform of the Braids' existing dock at

4720.

11. The modification did not satisfy the Braids. At the

hearing Mr. Braid used strips of paper on a drawing to show

hypothetical converging of the proposed Rosasco dock and another

long dock extending from the center line of his shore frontage at

4690 where Mr. Braid would like to build.

12. DEP staff have reviewed a signed and sealed survey

submitted by the Rosascos which purports to show that both the

original proposal and the revised dock proposal will place the

new dock at least 25 feet from the riparian rights line between

the Rosasco's property and the Braids' 4690 parcel.

13. The riparian line drawn on the Rosasco's survey is

configured in the same manner as a riparian line reflected on a

survey submitted by the Braids when they sought approval for

their now-existing dock at 4720. That is, the surveyor simply

extended the upland property line straight into the Indian River.

14. At hearing, the Braids submitted a survey of 4690 into

evidence; this one angled the northern riparian line (line

between 4690 and 4680) to run parallel to the southern riparian

line (line between 4690 and 4720).

15. There are obviously various means of drawing riparian

lines, and those lines are particularly complicated in a cove

where the shore is curved. Without the testimony of any of the

surveyors it is impossible to determine their respective bases

for the conflicting depictions.

16. Neither the administrative law judge nor the DEP has

any authority to determine riparian rights lines, as this a

uniquely judicial function of a circuit court.

17. In reviewing applications for dock permits, DEP does

not require a circuit court order determining a riparian rights

line as that would be impractical and cost-prohibitive. Instead,

DEP accepts a signed, sealed, survey depicting a reasonable

suggestion of the riparian rights line. This was the process

when the Braids made application for their dock in 1996, and was

the process when DEP reviewed the Rosasco's application in 1998.

18. The survey submitted by the Rosascos indicates that the

dock proposal, and March 1999 revised dock proposal both situate

the replacement dock at least 25 feet from the purported riparian

rights line. DEP reasonably relied on that survey.

19. Brian Poole, a former DEP Environmental Specialist II

with 25 years experience with the agency, reviewed the Rosascos'

first and revised dock proposals. His lengthy experience

includes processing and reviewing dock applications in this area

of Brevard County and he is very familiar with seagrass habitat,

dock placement, and navigation issues.

20. According to Brian Poole, and based on the surveys and

aerial photographs, the Rosascos' revised proposal would not

preclude the Braids' building a dock on their 4690 parcel. It

could be configured, even zig-zagged, between the Braids'

existing dock, and the Rosasco's proposed dock. The Rosasco's

proposed dock would afford more room than the Rosasco's existing

dock which is closer to the 4690 parcel.

21. Mr. Braid testified that some boaters in the Indian

River travel close to the existing docks at 4680 and 4720 and

that the longer dock proposed by the Rosascos will impede

navigation.

22. The Indian River is approximately 8000 feet wide at the

project site and the Intracoastal Waterway, which is the main

navigational channel of the Indian River, is approximately one

mile west of the project site. The proposed 500-foot dock will

not come near the Intracoastal Waterway or other navigational

channel.

23. There is already at least one other 500-foot dock in

the vicinity of the Rosasco's and Braids' docks. There are

several other shorter docks in the area. Because the water is

shallow, any boaters close to the shore or using the existing

docks will have to navigate carefully at idle speed and the docks

will not impede their navigation.

24. At the hearing the Braids conceded that seagrasses were

not an issue. This is confirmed by Brian Poole whose experience

and knowledge of the area confirm that there are no seagrass beds

or other submerged aquatic vegetation at the terminal platform or

mooring area of the original proposed dock or the revised

proposed dock. Seagrasses also do not appear in the aerial

photographs beyond 300-feet from shore as poor light penetration

inhibits their growth.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction in this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

26. DEP has regulatory jurisdiction over the Rosasco's

proposed dock pursuant to Part IV of Chapter 373, Florida

Statutes. DEP also has jurisdiction to authorize the use of

certain state-owned sovereign submerged lands, including the

submerged land at issue here, under Chapters 253 and 258, Florida

Statutes.

27. The Rosascos, as applicants, have the burden of proving

that they qualify for the NGP and consent of use. Department of

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

1981). The burden is one of "reasonable assurance" that certain

regulatory requirements are met.

28. The general permit process differs from the regular

permit application process.

Unlike other types of permits, general

permits--including noticed general

environmental resource permits--are not

"issued." General permits are established by

rule adoption and the rule, itself, is the

general permit. A general permit rule

authorizes persons to undertake an activity

if: (a) the activity comes within the

limiting parameters and applicable specific

and general conditions of the rule

establishing the general permit; (b) the

person submits a notice of intent to conduct

activities under the authorization of the

general permit rule thirty days prior to

conducting such activities; and (c) the

Department does not inform the person within

thirty days after receipt of a sufficiently

complete notice that the activity does not

come within the scope of the general permit

rule and thus may not be conducted without a

regular permit. See Fla. Admin. Code. R. 62-

341.201(1); Fla. Admin. Code R. 62-341-

215(2); Fla. Admin. Code R. 62-343.090(1).

Castoro v. Palmer , DOAH No. 96-0736/95-5879, Final

Order DEP 10/15/98.

29. Rule 62-341.427, Florida Administrative Code,

establishes a general permit for certain piers and other

associated structures:

62-341.427 General Permit for Certain Piers

and Associated Structures.

(1) A general permit is hereby granted to

any person to construct, extend, or remove

piers and associated structures as described

below:

(a) single-family piers, along with boat

lifts, boat houses, terminal platforms, and

gazebos attached to the pier, where these

structures:

1. do not accommodate the mooring of more

than two water craft;

2. do not, together with existing

structures, exceed a total area of 2,000

square feet; and

3. have a minimum depth of two feet below

the mean low water level for tidal waters and

two feet below the mean annual low water

level for non-tidal waters for all areas

designed for boat mooring and navigational

access; and

(b) public fishing piers that do not exceed

a total area of 2,000 square feet provided

the structure is designed and built to

discourage boat mooring by elevating the

fishing pier to a minimum height of five feet

above mean high water or ordinary high water,

surrounding the pier with handrails, and

installing and maintaining signs that state

"No Boat Mooring Allowed."

(2) This general permit shall be subject to

the following specific conditions:

(a) construction or extension of the boat

house, boat shelter, boat lift, gazebo, or

terminal platforms, shall not occur over

submerged grassbeds, coral communities or

wetlands. In addition, the boat mooring

location shall not be over submerged

grassbeds, coral communities or wetlands.

However, the access walkway portion of the

pier may traverse these resources provided it

is elevated a minimum of five feet above mean

high water or ordinary high water, contains

handrails that are maintained in such a

manner as to prevent use of the access

walkways for boat mooring or access, and does

not exceed a width of six feet, or a width of

four feet in Aquatic Preserves;

(b) there shall be no wet bars, or living

quarters over wetlands or other surface

waters or on the pier, and no structure

authorized by this general permit shall be

enclosed by walls or doors;

(c) the structure and its use shall not

significantly impede navigability in the

water body;

(d) there shall be no dredging or filling

associated with construction of the

structures authorized herein, other than that

required for installation of the actual

pilings for the pier, boat lift, boat

shelter, gazebo, or terminal platform;

(e) there shall be no fish cleaning

facilities, boat repair facilities or

equipment, or fueling facilities on the

structures authorized by this general permit.

In addition, no overboard discharges of

trash, human or animal waste, or fuel shall

occur from any structures authorized by this

general permit; and

(f) this general permit shall not authorize

the construction of more than one pier per

parcel of land or individual lot. For the

purposes of this general permit, multi-family

living complexes shall be treated as one

parcel of property regardless of the legal

division of ownership or control of the

associated property.

30. The Rosasco's proposed dock, as revised, must meet the

conditions of Rule 62-341.427, Florida Administrative Code, and

they have provided reasonable assurance that they do meet the two

criteria at issue here: protection of grassbeds and no

significant impediment to navigability.

31. Rule 18-21.005, Florida Administrative Code, describes

the different types of proprietary authorizations (consent of

use, lease, easement, use agreement, special event authorization,

or other form of approval) that are required, based upon the size

and scope of the proposed project. This rule, among other

things, sets certain conditions under which an applicant is

granted a consent of use by the Board of Trustees of the Internal

Improvement Trust Fund. A consent of use allows the applicant to

use sovereign submerged land without applying for a lease,

easement, or other approval. An applicant may, as one option,

rely upon a consent of use for "a single dock or access channel

which is no more than the minimum size and length necessary to

provide reasonable access to navigable water." Rule 18-

21.005(1)(a)1, Florida Administrative Code. To obtain a consent

of use under Rule 18-21.005, an applicant must meet, among other

things, the requirements of Rule 18-21.004, Florida

Administrative Code.

32. Riparian rights are addressed in Rule 18-21.004,

Florida Administrative Code:

(3) Riparian Rights

(a) None of the provisions of this rule

shall be implemented in a manner that would

unreasonably infringe upon the traditional,

common law riparian rights of upland property

owners adjacent to sovereignty lands.

(b) Applications for activities on

sovereignty lands riparian to uplands can

only be made by and approved for the upland

riparian owner, their legally authorized

agent, or persons with sufficient title

interest in uplands for the intended purpose.

(c) All structures and other activities must

be within the riparian rights area of the

applicant and must be designed in a manner

that will not restrict or otherwise infringe

upon the riparian rights of adjacent upland

riparian owners.

(d) All structures and other activities must

be set back a minimum of 25 feet from the

applicant's riparian rights line. Marginal

docks may be set back only 10 feet.

There shall be no exceptions to the setbacks

unless the applicant's shoreline frontage is

less than 65 feet or a sworn affidavit of no

objection is obtained from the affected

adjacent upland riparian owner, or the

proposed structure is a subaqueous utility

line.

33. The facts in this case establish that there is a

dispute between the Rosascos and the Braids regarding whether the

proposed dock meets the 25-foot set-back requirement. This

dispute cannot be resolved in this proceeding. The local circuit

court has exclusive original jurisdiction in all actions involved

the title and boundaries of real property. Section 26.012(2)(g),

Florida Statutes. The determination of rights of parties to a

riparian boundary dispute is a matter subject to judicial, not

administrative, resolution. Buckley v. Dept. of Health and

Rehabilitative Services , 516 So. 2d 1008, 1009 (Fla. 1st DCA

1987).

34. The DEP's practice of requiring only some reasonable

surveyor's depiction of the property line is practical and within

the agency's exercise of discretion. In this case the Rosascos

did present a survey showing that their dock would comply with

the setback requirement. The Braids' survey submitted to support

a general permit for their dock established riparian lines in a

manner similar to that used by the Rosasco's surveyor. A third

survey submitted by the Braids at hearing presents a conflicting

line between 4680 and 4690.

35. In at least two prior reported cases, DEP has addressed

the absence of a clear showing of riparian rights by requiring

the following standard conditions to the consent of use:

2. Grantee agrees that all title and

interest to all lands lying below the

historical mean high water line are vested in

the board, and shall make no claim of title

or interest in said lands by reason of the

occupancy or use thereof.

* * *

5. Grantee agrees to indemnity, defend and

hold harmless the Board and the state of

Florida from all claims, actions, lawsuits

and demands arising out of this consent.

* * *

12. In the event that any part of the

structure(s) consented to herein is

determined by a final adjudication issued by

a court of competent jurisdiction to encroach

on or interfere with adjacent riparian

rights, Grantee agrees to either obtain

written consent for the offending structure

from the affected riparian owner or to remove

the interference or encroachment within 60

days from the date of the adjudication.

Failure to comply shall constitute a material

breach of this consent and shall be grounds

for its immediate termination.

Rood v. Hecht , DOAH Case No. 98-3879 ( DEP Final Order

entered 4/15/99); Hagerman v. DEP , DOAH Case Nos.

95-0158/95-0955 ( DEP Final Order entered 8/21/95).

36. The Rosascos have provided reasonable assurance that

their revised proposed dock and its use, with the addition of the

above-quoted conditions 2, 5 and 12 to the consent of use,

complies with Rule 18-21.004(3), Florida Administrative Code.

RECOMMENDATION

Based on all of the foregoing, it is hereby, RECOMMENDED:

A. The petition challenging the propriety of the general

permit for Rosascos' related proposed dock and the related

consent of use of sovereign submerged lands be DENIED.

B. The Rosascos' single-family dock project as revised in

the March 31, 1999, modification be authorized pursuant to the

applicable general permit rules, provided that the revised dock

does not exceed a total area of 2,000 square feet, subject to

design criteria limitations and other conditions.

C. The Rosascos's application for consent of use of

sovereign submerged lands be GRANTED, subject to the general

consent conditions quoted above and those imposed by rule.

DONE AND ENTERED this 1st day of July, 1999, in Tallahassee,

Leon County, Florida.

___________________________________

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallah assee, 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 1st day of July, 1999.

COPIES FURNISHED:

Fred and Julie Braid

4720 Highway AlA

Melbourne Beach, Florida 32951

James and Carol Rosasco

4680 South Highway AlA

Melbourne Beach, Florida 32951

Thomas I. Mayton, Jr., Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental Protection

Office of General Counsel

3900 Commonwealth Boulevard, M.S. 35

Tallahassee, Florida 32399-3000

F. 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.