COLONEL AND MRS. G.A.P. HAYNES, )
vs. ) CASE NO. 81-1791
) WILLIAM A. ROBERTS and DEPARTMENT ) OF NATURAL RESOURCES, )
Respondents. )
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on February 25 and 26, 1982, in the Walton County Courthouse, DeFuniak Springs, Florida. The issue for determination at the hearing was whether the respondent, William A. Roberts, is entitled to a permit to alter, excavate or construct on property lying seaward of the established coastal construction control line at Grayton Beach, Walton County, Florida.
For Petitioner: Jerry W. Gerde, Esquire
Davenport, Johnston, Harris Gerde & Harrison, P.A.
For Respondent W. Paul Thompson, Esquire Roberts: Thompson and Adkinson
For Respondent Deborah A. Getzoff, Esquire DNR: Department of Natural Resources
3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32303
By an Amended Complaint, eleven named petitioners seek a denial of the application of respondent William A. Roberts for a permit to construct a five- unit housing project on Grayton Beach on property lying seaward of the established coastal construction control line. Paragraphs 3(d) and 3(g) of the Amended Complaint were dismissed prior to the hearing.
At the final hearing, the respondent Department of Natural Resources (DNR) presented the testimony of Clifford L. Truitt, DNR's chief engineer for the Bureau of Beaches and Shores, who was accepted as an expert in the area of coastal engineering. DNR's Exhibits 1 through 11 were received into evidence. The respondent Roberts testified on his own behalf and also presented the testimony of Samuel W. Blimling, the architect for the proposed project, and James L. La Frenz, the engineer for the proprosed project. Respondent Roberts' Exhibit 1 was received into evidence. The petitioners presented the testimony of Mrs. G. A. P. Haynes, Burton Murray and Elizabeth Hayes Jones, three of the petitioners in this proceeding, as well as the testimony of Emmett E. Pinkston, Perry Rutherford, George M. Jennings and Theresa L. Ray, all of whom were long- term residents of or visitors to the Grayton Beach area. Petitioners' Exhibits
5 through 14 were received into evidence, as were Joint Exhibits 1 and 2.
Subsequent to the hearing, the petitioners and the respondent DNR filed proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not contained in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
By application dated March 9, 1981, and received by the DNR's Bureau of Beaches and Shores on March 13, 1981, respondent sought a permit to construct five single-family dwellings on five 64-foot-wide parcels of land located seaward of the established coastal construction control line (CCCL) on Grayton Beach. Attached to the application were site plans, an affidavit of ownership and a warranty deed showing respondent Roberts to be the owner of the subject property. (DNR Exhibit 1)
Question number 5 on the permit application required the "specific reasons the applicant feels that the permit should be approved and why construction seaward of the control line . . . is considered necessary for reasonable use of the property." The answer provided by the applicant to this question was "the landward property line is located 150 feet seaward of the control line. Therefore, no upland property is available on the site for development." (DNR Exhibit 1)
By form letter dated March 16, 1981, DNR notified respondent Roberts that his application for a permit was incomplete and that two further items of information were necessary before his application could be considered. One item was written evidence that the proposed project would not contravene local setback requirements or zoning or building codes. The other item was detailed site, grading, drainage and structural plans and specifications for the proposed structure. These plans were to be certified by a registered Florida engineer or architect. (DNR Exhibit 2)
On or about March 31, 1981, the DNR received the certified architectural plans from the project architect, who is registered in the State of Florida. These plans, as well as the site plans submitted by the engineer, contained the signature and seal of the architect and the engineer. They each intended their signature and seal to constitute a certification that, in their opinion, the drawings or plans were in compliance with all statutes, rules,
local ordinances and/or other regulations which govern the project. A certification of documents by the placement of signature and seal of an engineer or architect is the commonly accepted practice and usage in those professions.
It is not the policy of DNR to require an itemized certification reciting every requirement of the DNR rules.
By form letter dated April 6, 1981, the DNR notified the applicant that written evidence of compliance with local government regulations was still lacking. (DNR Exhibit 4) On April 13, 1981, DNR received a letter dated April 9, 1981 from the Walton County Attorney advising that
"The Board of County Commissioners
of Walton County has no local setback requirements or zoning or building requirements which would prohibit the proposed activity as submitted to the Bureau." (DNR Exhibit 5)
This letter satisfied the requirement of Rule 16B-33.08(1)(c), Florida Administrative Code, that the proposed project would not contravene local setback requirements or zoning or building codes.
Full scale copies of topographic and site plans were received by the Bureau of Beaches and Shores on April 15, 1981. The application for a permit was deemed complete as of April 15, 1981, (DNR Exhibit 7), and respondent Roberts' agent was notified by letter dated June 23, 1981 that the DNR Executive Director had recommended to the Governor and Cabinet (the agency head of the DNR) approval of the application. (DNR Exhibit 10)
The completed application reflects that the five single-family dwellings are to be supported by treated timber pilings with an underside minimum elevation of +14 feet (NGVD). The Federal Base Flooding Elevation for Grayton Beach is +9 feet (NGVD). The architect has certified that the proposed dwelling units are designed to withstand 140 mile per hour winds. The seaward- most dwelling of the five is a maximum of 263 feet seaward of the coastal construction control line, and the applicant's entire parcel of land is located over 150 feet seaward of the control line. The project is located approximately
230 feet from the mean high water line. The project also includes the construction of a private road, septic tanks and drainfields.
The dune system in front of the proposed structure will offer substantial protection to the structure against storm and wave action. The excavation proposed includes that necessary for the placement of the pilings, the septic tanks and the drainfields, and the construction of the proposed driveway. The proposed drainfields will extend partially above existing grade and fill material i11 be placed over them.
The driveway consists of a 16-foot asphalt paved road located landward of the proposed dwellings. The dunes will be reduced in height where the driveway is to be constructed. It is not clear from the testimony or the documentary evidence adduced at the hearing where the parking of vehicles belonging to residents or guests of the five units is to occur. While there was testimony from Mr. Truitt to the effect that no net loss of sand will occur and that the project will involve more of a balancing of grade as opposed to excavation, the engineering plans submitted with the application illustrate at least nine rather large areas of cut and fill associated with the driveway, septic tanks and drainfields. The project engineer had considered no studies on
the topography or littoral trends of this specific site, had no knowledge of engineering data regarding adjacent properties and had not reviewed any data regarding major storms on the subject project site.
The engineering plans submitted as a part of the application contain a diagram illustrating five separate 750 gallon septic tank systems, one for each dwelling unit, with the "drainfield [for each unit] to be constructed in accordance with Chapter 10D-6, F.A.C." (DNR Exhibit 1) The larger scale engineer's drawing submitted to DNR on April 15, 1981, gives more specific information regarding the location and depth of the below grade drainfields on the seaward side of the structures. A DNR interoffice memorandum dated June 1, 1981, reflects that the applicant's agent agreed in a telephone conversation that, "if possible, he would move the septic tank (750 gal) and related drainfields to the landward side of the buildings." (Joint Exhibit 1) The Cabinet agenda item dated later in time, however, notes that the "septic tanks (750 gallon) and drainfields will extend an additional 50 feet seaward of each dwelling." (DNR Exhibit 8) The exact proposed location of the septic tanks and drainfields was not clarified at the final hearing, nor was sufficient evidence adduced concerning the justification for the proposed discharge system.
Evidence concerning the availability of any existing alternatives to the system proposed by the applicant was not adduced, nor was evidence presented concerning storm water discharge. As of the time of the hearing in this matter, the applicant had no plans for heating or cooling the five dwelling units.
When asked at the hearing what "justification" the Bureau of Beaches and Shores received for the proposed waste water discharge system, Mr. Clifford Truitt, the Bureau's chief engineer and the person responsible for review of this application, replied in two ways. First, he stated that the fact that the property was located entirely seaward of the CCCL was justification for the discharge system. However, he admitted that a "dry sanitary system" would be a better alternative. Later, Mr. Truitt stated that "justification" for the domestic waste system is only required when there is a beach level discharge.
Mr. Truitt was accepted as an expert witness in the area of coastal engineering. His opinions regarding the proposed project were based upon his review of aerial photography of the Grayton Beach area and comparison of topographic profiles of the area, his review of the engineering and topographic information submitted with the application itself and his familiarity with the project location. No evidence was adduced that engineering data concerning storm tides related to shoreline topography was considered by Mr. Truitt or anyone else. No specific studies exist regarding the stability, littoral trends or the erosional history of the proposed site and surrounding area.
The project site has been the subject of other permit applications considered by the DNR, and Mr. Truitt was of the opinion that a mitigating feature of the present application was that "the present proposal has the lowest density and least extension seaward of the control line of any proposal to date." (DNR Exhibit 8) It was Mr. Truitt's opinion that the dwelling unit structures were adequately elevated and designed to adequately resist the natural forces associated with a 100-year return interval storm event and would not increase the threat of damage or danger to nearby structures. Factual evidence concerning the 100-year storm event was not presented at the hearing. Mr. Truitt further opined, without the aid of engineering data or the studies mentioned above, that the proposed construction would not affect the natural shoreline fluctuations or the stability of the dunes in the area. Such an opinion contains no factual basis in the record of this proceeding, and thus is not sufficient evidence upon which to make a similar finding of fact.
On various sporadic occasions, a waterway or pass connecting Western Lake to the Gulf of Mexico runs in a westerly direction in the vicinity of the applicant's property. At times, this watercourse has been wide and deep enough to allow swimming, diving and the passage of small boats. The witnesses who testified about this watercourse were not qualified as surveyors or experts in estimating or calculating the exact location of that watercourse relative to the proposed site, and there was no testimony that such an event had occurred within the past twenty years. At least two witnesses testified that the last time they could recall the watercourse or pass traversing or abutting the applicant's property was in the late 1950s. The proposed project site has been covered with storm waters on at least two occasions in the past seven years.
No evidence was adduced at the hearing concerning the substantial interests in this permit application of named petitioners Colonel G. A. P. Haynes, Mr. and Mrs. Roy Cawthon, Mrs. Kate Florence, Mrs. Burton Murray, Colonel and Mrs. Lee Fry, Mrs. Laney Ellis and Mrs. Randall Jones.
Mrs. G. A. P. Haynes, one of the petitioners in this proceeding, owns and resides on property immediately adjacent to the project site, and presently entertains an unbroken view of the beachfront. She is concerned with potential sewage problems and damage to her residence from flying debris caused by wind or storm should the proposed construction be approved. Mrs. Haynes was also concerned about the potential adverse effect of the proposed construction on the value of her adjacent property.
Petitioner Burton Murray lives to the north of the project site, at least several hundred feet away. His prime concern was that no structure could survive at that location and that the project would therefore be a waste of money.
Petitioner Elizabeth Hayes Jones (named as Ms. Lisbeth Haas in the petition) lives across the street and to the east of the project site. Her residence was completely destroyed by hurricane and has since been rebuilt at the same site. She feels that the applicant's project site is not safe for construction, and fears storm damage to her home from the buildings if constructed.
CONCLUSIONS OF LAW
The DNR has moved to dismiss this proceeding on the grounds that none of the named petitioners have a substantial interest in the permit application as required by the Administrative Procedure Act. Section 120.57, Florida Statutes. As to the nine named petitioners who did not appear at the hearing or otherwise present evidence concerning their standing to challenge the subject permit application, the motion to dismiss is granted. The evidence presented on behalf of petitioners Burton Murray and Elizabeth Jones was not sufficient to confer standing upon those individuals. However, the evidence does illustrate that Mrs. G. A. P. Haynes, who owns and resides on property immediately adjacent to the proposed project site, has demonstrated her substantial interest in the activity for which the permit is being sought. The very purposes of the statutes and regulations governing coastal construction on property located seaward of an established CCCL include the prevention of erosion and the protection of upland structures and adjacent properties. Section 161.053(1), Florida Statutes. Therefore, the motion to dismiss Mrs. G. A. P. Haynes for lack of standing is denied.
Coastal construction control lines are established for the protection of upland and adjacent properties and the control of beach erosion. They are intended to define that portion of the beach and dune system which is subject to severe fluctuations based on a one-hundred-year storm surge or other predictable weather conditions. Florida Statutes, Section 161.053; Florida Administrative Code, Rule 16B-33.05. The purpose of a CCCL is to defin' the area within which special structural design considerations are required to protect the beach-dune system, any proposed structure and adjacent properties, rather than to define a seaward limit for upland structures. Section 161.053(1), Florida Statutes. However, no construction is permitted in such areas except in accordance with Section 161.053(4)(a). There is no dispute in this case concerning the fact that the entire project site is located seaward of the established CCCL and is thus subject to the permitting requirements of Chapter 161, Florida Statutes, and Chapter 16B-33, Florida Administrative Code.
An applicant for a permit bears the burden of proving by competent, substantial evidence that he meets each and every one of the applicable statutory and regulatory requirements for that permit. There has been no indication or contention in this case that any of the requirements provided by rule or statute have been waived or are otherwise not applicable to this permit request.
A permit to alter, excavate or construct on property seaward of the CCCL may be granted by the DNR upon application and consideration of facts and circumstances, including engineering data concerning shoreline stability and storm tides related to shoreline topography, which, in the Department's opinion, "clearly justify such a permit." Section 161.053(4)(a), Florida Statutes. Further, Rule 16B-33.06(1), Florida Administrative Code, provides that:
"(1) The Governor and Cabinet, or the Executive Director pursuant to 16B-33.12(8), may issue a permit for an excavation or construction of a structure at any riparian coastal location, as described in Section 161.053(1), and Section 161.052(2), Florida Statutes, upon receipt of a complete applica- tion and upon the determination that the facts and circumstances, including adequate engineering data concerning construction design, evidenced shoreline stability, current littoral trends, and expected hydro- dynamic forces associated with the design storm event, which in the opinion of the department, clearly justify a permit."
The DNR has promulgated Chapter 16B-33, Florida Administrative Code, which governs the issuance of permits for the alteration, excavation or construction on property located seaward of the CCCL. Rule 16B-33.05 sets forth the Department's policy statement on such permits. Subsection (1) states that while all development or alteration of coastal property seaward of the CCCL is not precluded,
"activities seaward of a coastal construction control line or 50-foot setback shall be limited and the necessity of such development, construction or alteration shall be
stated and clearly justified by the applicant." (Emphasis supplied)
Among the requirements necessary for permit approval are that "the necessity for activities seaward" of the line "be stated and clearly justified by the applicant." Rule 16B-33.07(7) (Emphasis supplied). The Department is to consider, among other things, "any alternatives to the proposed construction or excavation available to the applicant." Rule 16B-33.07(7)(i). And again, the Department's rules require a statement on the application form
"giving specific reasons why the applicant feels that the permit should be approved and why construction seaward of the coastal construction control line or 50-foot
setback is necessary for the reasonable use of the property. Rule 16B-33.08(1)(e) Florida Administrative Code. (Emphasis supplied)
A review of the above-cited regulatory and statutory language leads to the conclusion that permits to alter, excavate or construct on coastal property located seaward of the established CCCL may only be granted when the proposed activity is both necessary and clearly justified.
The applicant proposes to construct five single-family dwelling units on five 64-foot-wide adjacent parcels of land. The necessity or justification provided by the applicant is that his entire property is located seaward of the CCCL and, therefore, no upland property is available on the site for development. This statement, by itself, does not meet the statutory or regulatory requirements for obtaining a permit to conduct activities on such coastal property. While the fact that the entire property is located seaward of the CCCL does justify and necessitate a request for a permit to conduct certain activities on the property, it does not justify or necessitate the approval or granting of such a permit application. There was no further evidence adduced by the applicant at the hearing to clearly justify or to necessitate the construction of five separate dwelling units with five separate waste water disposal systems on this particular parcel of coastal property. The terms "necessary" and "clearly justify" appearing throughout the permitting requirements of Chapter 16B-33 imply more than a property owner's desire to make a profit from his land. There was no indication that the Department considered other alternatives available to the applicant or that the proposed project was necessary for the reasonable use of the property. The only other evidence considered was the fact that other projects had been proposed for this site and that the subject proposal "has the lowest density and least extension seaward of the control line of any proposal to date on the site." To give considerable weight to this evidence would be to imply that some construction or development of the site is, by itself, a necessity and clear justification for the proposed project. This is contrary to the intent of the Legislature when it enacted statutes to insure the protection of the beach-dune system, proposed structures and adjacent properties by a permitting system which requires a consideration of adequate engineering data concerning shoreline stability and storm tides related to shoreline topography. Section 161.053(4)(a), Florida Statutes. It is concluded that the applicant has failed to sustain his burden of demonstrating that the proposed project is clearly justified and necessary for the reasonable use of his property.
The evidence adduced at the hearing does demonstrate that the dwelling structures proposed are properly elevated and designed to withstand a 140 mile per hour wind load. With the absence of evidence concerning storm tides, the 100-year storm event, littoral trends, or the stability or erosional history of the project site, it is not possible to conclude that the proposed structures can withstand a 100-year storm event. Further, the effect of the driveway, septic tanks and waste water discharge upon the beach-dune system, shoreline stability and adjacent properties has not been established. Indeed, the evidence concerning the location of the septic tanks and drainfields is conflicting, as demonstrated by paragraph 9 of the findings of fact above.
Among the items of information required of a permit applicant are: "Details and justification, including
engineering design computations, for
any proposed waste or storm water discharge onto, over, under or across the beach and dune system, including but not limited to, storm water runoff, swimming pool drainage, air conditioner
cooling water discharge, well discharge, domestic waste systems, or outfalls." Rule 16B-33.08(1)(j), Florida Administra- tive Code.
It is obvious from a cursory reading of this Rule that consideration is to be given to both the location and the type of the waste water discharge system, whether it discharges onto, over, under or across the beach and dune system. In reaching his opinions and conclusions regarding the overall effect of this project, Mr. Truitt, by his own admission, did not comply with this rule. The evidence adduced in this proceeding reflects that proper consideration of the details and justification, including engineering design computations, was not given to the proposed waste water discharge system prior to the hearing, and there was insufficient evidence adduced at the hearing to illustrate that the proposed system will insure protection of the beach-dune system and adjacent properties and not accelerate erosion.
The petitioners have raised several other issues regarding the incompleteness of the application submitted by respondent Roberts, the instability of the project site and proposed structures and the lack of adequate engineering data concerning shoreline stability and storm tides related to shoreline topography, as required by Section 161.053(4)(a), Florida Statutes.
It is concluded that, for the purposes of rendering a determination of the completeness of the application, the design plans and specifications submitted by the applicant were properly certified by a professional engineer and an architect registered in the State of Florida, as required by Rule 16B- 33.07(4)(h), Florida Administrative Code. The evidence regarding the knowledge of the engineer with regard to the historic topography and stability of the area goes to the weight to be afforded his plans and specifications and not to whether a completed application has been received.
The lay testimony presented by the petitioners' witnesses regarding the instability of the project site and dwelling unit structures was not, by itself, sufficiently competent and substantial to draw any conclusions therefrom. However, it is concluded that the facts adduced at the hearing with regard to shoreline stability and possible erosion from the proposed activity are not sufficient to clearly justify a permit, as required by Section
161.053(4)(a), Florida Statutes, and Rule 16B-33.06(1) Florida Administrative Code. The record of this proceeding contains no information regarding current littoral trends, expected hydrodynamic forces associated with the design storm event, or engineering data concerning shoreline stability and storm tides related to shoreline topography. Without such a factual basis, it cannot be concluded that a permit is clearly justified. Due to the absence of the above factual data, Mr. Truitt's review of aerial photography, comparisons of profiles, familiarity with the area through on-site visits and review of the limited topographical information provided with the application and the opinions he derived there from do not constitute a sufficient basis upon which to conclude that the facts and circumstances clearly justify approval of the subject permit.
In summary, the lack of engineering data concerning shoreline stability and storm tides related to shoreline topography prohibits the granting of respondent Roberts' permit application. Further, there has been no demonstration that the proposed alteration, construction and excavation is necessary for a reasonable use of the property or is otherwise clearly justified. Finally, there is insufficient evidence concerning the location, type or justification for the particular proposed waste or storm water discharge and domestic waste system to conclude that the proposed project will insure protection of the beach-dune system, any proposed structure and adjacent properties. Without such evidence, a permit cannot be granted, pursuant to Section 161.053, Florida Statutes, and the rules of the Department promulgated pursuant thereto.
Based upon the findings of fact and conclusions of law recited herein it is RECOMMENDED that the application for a coastal construction control line permit to construct five single-family dwellings on Grayton Beach be DENIED.
Respectfully submitted and entered this 25th day of May, 1982.
DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982.
Jerry W. Gerde, Esquire Davenport, Johnston, Harris, Gerde & Harrison, P. A.
W. Paul Thompson, Esquire Thompson and Adkinson
P. O. Drawer 608
Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32303
Dr. Elton J. Gissendanner Executive Director
