STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COUNTY COMMISSIONERS ) OF THE SOUTH LAKE WORTH INLET ) DISTRICT, )

)

Petitioners, )

)

vs. ) CASE NO. 81-1599

) BOARD OF TRUSTEES OF THE INTERNAL ) IMPROVEMENT TRUST FUND and ) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondents. )

and )

) COUNTY OF PALM BEACH, THE OCEAN ) CLUB OF FLORIDA, et al., )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on 8-9 February 1982 at West Palm Beach, Florida.

APPEARANCES

For Petitioners: James McCartney Wearn, Esquire

James McCartney Wearn, P.A.

325 Third Street

West Palm Beach, Florida 33401

Ronald Sales, Esquire Sales & Weissman, P.A. 1551 Forum Place

West Palm Beach, Florida 33401

Charles B. Faegre, Esquire Wearn and Faegre

350 Royal Palm Way

Palm Beach, Florida 33480

For Respondents: Henry Dean, Esquire

General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Board of

Trustees, IITF No appearance

For Intervenor, Mark J. Proctor, Esquire

Palm Beach Levin, Warfield, Middlebrooks, County: Mabie & Magie

226 South Palafox Place Pensacola, Florida 32581

For Intervenor, D. Culver Smith, III, Esquire

Ocean Club, Steel, Hector, Davis, Burns & Middleton et al.: 205 Worth Avenue

Palm Beach, Florida 33480

By Request for Formal Proceeding filed 9 June 1981 and Amended Request for Formal Proceedings filed 12 June 1981, the Board of Commissioners of South Lake Worth Inlet District (SLWID) seeks a formal hearing on the Board of Trustees of the Internal Improvement Trust Fund (TIITF) and the Department of Natural Resources (DNR) proposed issuance of a coastal construction permit and approval of a beach nourishment program to Palm Beach County for the coastal area immediately south of the South Lake Worth Inlet (Inlet). Subsequent to the filing of this Petition, a Motion to Intervene as party respondents was filed by The Ocean Club of Florida; 6823 Corporation; Mews South, Inc.; The Ocean Mews, Inc.; 6855 North Ocean Boulevard, Inc.; Ocean Hours North, Inc.; The Ocean Maisonettes, Inc.; Maisonettes South, Inc.; The Tamarind; 6767 North Ocean Boulevard, Inc.; Inlet Plaza; McCormick Mile Beach Club; and Ocean Ridge Management, Inc. By Order entered 20 July 1981 leave to intervene was granted.

Subsequent discovery orders were entered, as was an order granting the Motion to Intervene by the Town of Ocean Ridge and Palm Beach County.

The case was initially noticed for hearing on 15 October 1981; however, pursuant to a conference call on 17 September 1981 the hearing was continued and a prehearing conference was scheduled for 16 October 1981. At this prehearing conference it became evident that Palm Beach County was the true petitioner, as Palm Beach County was the party requesting action by the Department of Natural Resources and the Trustees of the Internal Improvement Trust Fund to approve the establishment of an erosion control line and beach nourishment program.

Accordingly, Palm Beach County was directed to file a pleading in which the proposed project was described and the reasons given why Palm Beach County deemed itself entitled to the requested permit and erosion control line. This prehearing conference was memorialized by Order entered 19 October 1982 in which a schedule for the completion of discovery was established and the tentative hearing date was agreed upon.

On 25 January 1982 Palm Beach County filed a MOTION TO STRIKE OR IN THE ALTERNATIVE MOTION IN LIMINE to strike as issues in the forthcoming hearing certain allegations in SLWID's Amended Request for Formal Proceedings. This motion was joined by DNR. At a telephone conference call on 4 February 1982 the Motion to Limit Issues was granted insofar as SLWID sought (1) consideration of environmental impacts on barrier reefs and water pollution in the inlet, except sedimentation, (2) consideration of economic feasibility and advisability, and

1. consideration of public access. At this conference the issues to be considered at the forthcoming hearing were established as:

   
   

   1. Whether severe beach erosion has occurred in the project area;

   2. Whether the beach sought to be protected

      by the proposed erosion control project has been or will be destroyed in the immediate future unless publicly financed program, (this project) is undertaken;

   3. Whether the project will adversely affect the Inlet; and

   4. The effect of the SLWID-Palm Beach County maintained and operated sand transfer plant on the beaches in the project area.

At the hearing Palm Beach County and those parties supporting the applicant called 11 witnesses; the parties stipulated that if five additional property owners in the project area were called they would testify they own property on the beach, they have observed erosion of the beach during storms and have erected protective structures to inhibit loss of beach; SLWID called one witness; and 40 exhibits were offered into evidence. Only Exhibit 30, Minutes of the TIITF June 16, 1981, meeting, was not admitted over objection it was not properly authenticated.

FINDINGS OF FACT

1. On 24 July 1979 the Board of County Commissioners of Palm Beach County adopted Resolution R-79-887 petitioning the TIITF to establish an erosion control line (ECL) extending from South Lake Worth Inlet to the northern city limits of Delray Beach in conjunction with a beach restoration project in the same area. The project as then proposed encompassed extension of the south jetty at the Inlet 170 feet, construction of eight groins at 400-foot intervals commencing just south of the Inlet, and widening the beaches by 500 feet with

   150 feet above the mean high water and 350 feet below mean high water, for a distance of approximately 4.8 miles. The restoration project is proposed to be accomplished with sand from a borrow area located approximately one-half mile off shore. The project is designated "Ocean Ridge-Briny Breezes" beach restoration project.

   
   

2. SLWID objected to the project and, following conferences between Palm Beach County, SLWID and DNR the County amended its project to exclude property owned by SLWID from the ECL and beach restoration projects with the restoration of the beach to commence 300 feet south of the Inlet and continue for 2.6 miles to the town of Briny Breezes. Extension of the jetty and installation of groins were deleted.

   
   

3. Palm Beach County's proposed beach restoration project was authorized by the U.S. Congress and the U.S. Army Corps of Engineers in House Document 164 (Exhibit 5). The proposed "Ocean Ridge-Briny Breezes" beach restoration project was designed in accordance with the criteria set forth in Exhibit 5. The project is designed to restore the severe beach erosion that has occurred in the 2.6-mile project area and to provide the affected uplands protection against the ten-year design storm event. The ten-year design storm event implies a 3.8-foot storm surge with up to eight-foot waves superimposed thereon.

   
   

4. The proposed ECL has been surveyed by Palm Beach County along the mean high water line in the proposed area. Over 60 percent of the ocean front property owners have approved the establishment of the ECL in conjunction with a beach restoration project by executing letters of consent.

5. Following notice by DNR a public hearing was held on February 13, 1980, to receive evidence relative to the necessity and propriety of the proposed beach restoration project and the proposed location of the ECL. The Hearing Officer's report (Exhibit 28) concluded that there is a definite need to restore the proposed area where severe beach erosion has occurred and the establishment of the ECL would accomplish the purpose stated in Section 161.161, Florida Statutes. Approval of the project was recommended.

   
   

6. The staff of DNR approved the project and prepared the agenda item for the next meeting of the TIITF in which this project was to be considered for final approval. Prior to this meeting of the TIITF, SLWID filed its initial Request for Formal Proceeding and the item was removed from the TIITF agenda and referred to the Division of Administrative Hearings.

   
   

7. The beach erosion in the project area has been documented by Palm Beach County, DNR and the U.S. Army Corps of Engineers. Much of the erosion in the northernmost mile of the project has involved the beach above high water, as well as the offshore beach, while the erosion in the southern 1.6 files of the project has predominantly been offshore. During the period 1955-1981 approximately 1.6 million cubic yards of sand has been lost in the project area.

   
   

8. Beach erosion determinations are made by calculating both onshore and offshore changes in the beach profile. Significant offshore erosion will lead to onshore beach recession by storm-generated waves. A gradually sloping beach is a natural absorber of wade energy and the most effective. Since maximum wave height is a function of the depth of the water, waves rapidly dissipate when they reach shoal water. With offshore erosion and the resulting deeper water near the shore, incoming waves can be higher and will impact on the upland area with greater force than would occur with a gradually sloping beach.

   
   

9. There is a net annual littoral drift of 200,000 cubic yards of sand southward in the project area. Prior to the construction of the Inlet this drift replaced sand lost during storms, thus creating a dynamic beach which receded and was augmented from time to time. The installation of the jetties disrupted this littoral flow and caused the sand to build up on the beach north of the jetty while starving the beach south of the jetty.

   
   

10. This problem was partly corrected by the erection of a sand transfer plant on the north jetty which pumped some of this sand across the Inlet to the beach south of the Inlet. The sand transfer plant was not operated during WWII due to the fuel shortage and severe erosion occurred in the project area. Following WWII the sand transfer plant was replaced in operation, sand was dredged from the Inlet and deposited on the beach south of the Inlet and the beach in the project area was largely restored.

    
    

11. In 1967 the north jetty at the Inlet was extended and the sand transfer plant was moved eastward some 130 feet. This plant is a fixed plant consisting of a suction line on a boom which dredges sand to be pumped south of the Inlet only from the area that can be reached by the boom. Although capacity of the plant is adequate to pump the sand needed to replace in the project area that sand intercepted by the jetty, due to the limitation of the plant to reach a larger area there is insufficient sand available for the plant to pump to capacity. As a result, even if the plant operated all the time and there was sand available to pump, there would still be a net loss of sand in the project area (Exhibit 21).

12. During recent winter storms property-threatening beach erosion has occurred to beach property in the project area. Some of the property owners have erected bulkheads and seawalls and others are proceeding with plans to do so. In some places in the north portion of the project area there is no exposed beach at high water. In the southern portion of the project area the offshore erosion will, if left to continue, result in severe damage and loss of upland beach if impacted with seas commensurate with a ten-year design storm event.

    
    

13. This erosion, both on and offshore, will, if uncorrected, result in a calculated total of 134 feet of beach recession for the ten-year design storm event. This could result in the inundation of S.R. A1A, which runs near the beach in the northern portion of the project area. S.R. A1A is the primary north-south highway east of the Intracoastal Waterway and the evacuation route to the bridges to the mainland in the event evacuation of the beach is necessary in a hurricane situation.

    
    

14. The proposed beach restoration project is designed to replace sand lost offshore and onshore erosion in the the project area and provide a sloping beach to absorb wave impact. It will not accelerate erosion. The proposed restoration of the beach will protect property and structures in the project area against the forces associated with a ten-year design storm event.

    
    

15. Addition of the 1.5 million cubic yards of sand in the project area will result in some sand infiltration of the Inlet. This was calculated at 8,000 cubic yards the first year, 6,000 cubic yards the second year and 4,000 cubic yards per year thereafter. This will result in insignificant shoaling in the Inlet but will require infrequent maintenance dredging. It will not adversely impact the tidal prism in the Inlet or materially increase the maintenance of the Inlet.

    
    

16. Heavy storms result in immediate loss of sand from the upland beach. Most of this sand is deposited in the offshore beach and is returned to the upland beach by the normal action of waves and tides. Approximately ten percent of the sand so removed from the upland beach is not returned but is lost.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

18. Section 161.161, Florida Statutes, establishes the procedures for approval of a beach erosion control project by TIITF. These include a written recommendation by DNR approving or disapproving the requested project. Section 20.25, Florida Statutes, provides the head of DNR is the Governor and Cabinet, which is the same collegial body as TIITF. This collegial body operates through the Executive Director of DNR for the daily functions of DNR. Pursuant to procedures that are followed in all similar cases the staff recommended the Palm Beach County project be approved, the survey depicting the area of the beach erosion control project and the proposed location of the ECL was completed, the public hearing to receive evidence on the merits of the requested project was held, and the project was placed upon the TIITF agenda for final agency action when SLWID filed its request for a hearing. SLWID's contention, that because no document signed by the Executive Director of DNR, or the Governor and Cabinet sitting as DNR, addressed to TIITF was presented, the procedural requirements of Section 161.161, Florida Statutes, were not followed, is without merit. Even if the procedures had not been followed, SLWID was allowed to enter into these proceedings before final agency action was taken and was given full opportunity

    to present, at a formal hearing, evidence relating to the merits and demerits of the proposed project. Upon these circumstances it can hardly be said SLWID was denied due process.

    
    

19. The evidence presented clearly demonstrates that severe beach erosion has occurred in the project area. The fact that a considerable portion of this erosion is offshore and hence not readily observable by the naked eye does not detract from or reduce the seriousness of this erosion.

    
    

20. The testimony of SLWID's expert witness that a beach is not destroyed so long as it can be waded at low tide is not given much credence. The more credible evidence is that parts of the beach in the project area have been destroyed and the remainder of the beach is in danger of being destroyed in the immediate future. SLWID also contends the fact that the beach in the project area has been there for many years per se rules out a finding that it is in danger of being destroyed in the immediate future. This logic is reminiscent of the boatswain who, after the wire on the cargo boom broke dropping a load on workers underneath, stated he couldn't understand how the wire could break because he had been using that same wire for twenty years and it never broke before.

    
    

21. "Immediate future" is not defined in the statute nor is it defined in rules promulgated by DNR. What constitutes the immediate future in one context would seem quite delayed in another context. Here, we are dealing with a statute contemplating beach restoration and procedures to be followed in implementing such restoration. In order to protect severely eroded beaches from destruction in the immediate future, procedures must be started in sufficient time to correct the conditions before the beach is destroyed. If it takes two years from the initiation of such a project to the restoration of the beach to the condition it is no longer subject to destruction, then two years is the "immediate future." If it takes longer than two years, "immediate future" would likewise mean more than two years hence. The fact that seas generated by a hurricane are those most likely to destroy a seriously eroded beach and the passage of a hurricane over the project site is not predictable in a finite period renders the definition of "immediate future" less precise. The lack of precision under such circumstances clearly supports the conclusion that the beach in the project area will be destroyed in the immediate future unless the beach restoration program is undertaken.

    
    

22. Any findings of fact herein made which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is adopted as a finding of fact.

    
    

23. From the foregoing it is concluded that the beach in the proposed Ocean Ridge-Briny Breezes project area has been severely eroded and will be destroyed in the immediate future unless this project is approved. It is also concluded that the erosion control line should be established as the line of mean high water in accordance with the application of Palm Beach County. Accordingly, it is

RECOMMENDED that the erosion control line as requested by Palm Beach County be approved and that Palm Beach County's application for a coastal construction permit to construct the Ocean Ridge-Briny Breezes beach restoration project be GRANTED.

ENTERED this 5th day of March, 1982, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1982.

COPIES FURNISHED:

Honorable Bob Graham Governor, State of Florida The Capitol

Tallahassee, Florida 32301

Honorable Jim Smith Attorney General The Capitol

Tallahassee, Florida 32301

Honorable Doyle Conner Commissioner of Agriculture State of Florida

The Capitol

Tallahassee, Florida 32301

Honorable Ralph Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Honorable William Gunter Treasurer and Insurance Commissioner

The Capitol

Tallahassee, Florida 32301

Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32301

James McCartney Wearn, Esquire Mark J. Proctor, Esquire James McCartney Wearn, P.A. Levin, Warfield,

325 Third Street Middlebrooks, Mabie West Palm Beach, Florida 33401 & Magie

226 South Palafox Place

Ronald Sales, Esquire Pensacola, Florida 32581 Sales and Neissman, P.A.

1551 Forum Place D. Culver Smith, III, Esquire West Palm Beach, Florida 33401 Steel, Hector, Davis,

Burns & Middleton Charles B. Faegre, Esquire 205 Worth Avenue

Wearn and Faegre Palm Beach, Florida 33480

350 Royal Palm Way

Palm Beach, Florida 33480

Dr. Elton J. Gissendanner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32301

Henry Dean, Esquire General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-001599

Orders for Case No: 81-001599