STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WOODHOLLY ASSOCIATES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3234

) STATE OF FLORIDA, DEPARTMENT OF ) NATURAL RESOURCES , AND CITY OF ) HOLLYWOOD, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on May 19 and 20, 1983, in Hollywood, Florida.

APPEARANCES

For Petitioner: Steven L. Josias, Esquire

Donald J Dooty, Esquire

3040 East Commercial Boulevard Fort Lauderdale, Florida 33308

For Department Deborah A. Getzoff, Esquire

of Natural Department of Natural Resources Resources: 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

For City of Leonard Lubart, Esquire Hollywood: Post Office Box 2207

Hollywood, Florida 33022

This proceeding involves the question of whether a permit should issue pursuant to Chapter 161, Florida Statutes, and Chapter 165-33, Florida Administrative Code, for Permit Application No. 50-41 submitted by the City of Hollywood, Florida ("Hollywood"), to the State of Florida, Department of Natural Resources ("DNR"). This proceeding was conducted in response to an Amended Petition filed by Woodholly Associates ("Petitioner") on February 4, 1983.

Final hearing was scheduled in this cause for May 19 and 20, 1983, by First Amended Notice of Hearing dated March 15, 1983. At the final hearing, Petitioner called Paul T. O'Hargan, Frank Rajda, Robert R. Ogilby, and Leonard

1. Greenfield as its witnesses. Petitioner offered Petitioner's Exhibits 1 through 6, which were received into evidence. Hollywood called Jose A. Young, Thomas J. Campbell, Ralph Clark, and Marshal Bergacker as its witnesses. Hollywood offered Hollywood's Exhibits 1 through 8, which were received into evidence. DNR called Barry Manson-Hing and Ralph Clark as its witnesses. DNR offered DNR's Exhibits 1 through 9, which were received into evidence.

   Each of the parties to this proceeding has submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

   
   

   Hollywood has filed a posthearing Motion to Strike Petitioner's Exhibits 1, 2, and 3, which were received into evidence at the final hearing, subject to such a motion. After a consideration of the record in this cause, it is determined that said motion should be, and the same is hereby granted.

   
   

   FINDINGS OF FACT

   
   

   1. On September 23, 1983, Hollywood submitted a permit application to DNR for construction of the proposed project which is the subject matter of this proceeding. DNR designated that permit application as Permit Application 50-41. The proposed project is actually the first phase of a two-phase project, Phase II of which has already been permitted by DNR. Phase I, which is the subject of Permit Application 50-41, consists of an extension of existing Surf Road in the City of Hollywood, an extension of an existing asphalt boardwalk, construction of a parking area with landscaped island, swale, and associated lighting. The excavated fill removed from the site of Phase I is to be used in the construction of a dune which is encompassed within Phase II of the project. The properties on which Phase I and Phase II are to be constructed are owned by the City of Hollywood and are located seaward of the Coastal Construction Control Line and landward of the Erosion Control Line.

      
      

   2. The Summit Condominium is a condominium development located west of South Surf Road in the City of Hollywood, and is directly adjacent and contiguous to the property upon which the aforementioned project is to be constructed. Petitioner is the builder and developer of the Summit Condominium and, in addition, is the fee simple owner of approximately 15 units in that development.

      
      

   3. Phase I of the proposed project, which is the permit application at issue in this proceeding, provides for the construction of a 121-space public parking area which will be approximately 62 feet wide and 605 feet long, and will extend approximately 95 feet seaward of the Coastal Construction Control Line. The parking lot will be constructed with a six-inch limerock base over a six-inch crushed limerock subbase, and will be surfaced with a one and one-half- inch asphalt wearing course. The parking lot is designed with a definite landward slope, so that stormwater will sheet flow across the parking lot away from the dune system. There is no evidence of record in this proceeding which would in any way justify a conclusion that stormwater runoff from the parking lot area will have any adverse effect on the dune system seaward of the lot.

      
      

   4. Stormwater runoff once it has left the parking lot surface will be collected in a swale and drainage ditch system located landward of the paved parking lot surface. The drainage ditch will be composed of sandy material presently located on the site and is designed on a 1.2 to 1 slope. In addition, Wedelia is to be planted in and around the drainage ditch system in order to stabilize the slopes of the ditch. The ditch and swale system is designed to allow most stormwater runoff to percolate into the soil, with any excess being collected in the ditch itself and transmitted in a northerly direction. A drainage calculation study prepared in conjunction with this proceeding demonstrates that the drainage capacity for the proposed ditch meets minimum

      standards contained in the South Florida Building Code, as applied by the City of Hollywood. As the ditch fills with stormwater, the water will flow in a northerly, shore parallel direction to Jefferson Street, which is located north of both the proposed project and the Summit Condominium. From Jefferson Street, runoff from the project site will flow westerly to Highway A-1-A where an existing stormwater sewer system is located. If for some reason that system proves insufficient to handle runoff, the runoff will then travel across A-1-A into the intracoastal waterway. There is no competent evidence of record in this proceeding to demonstrate that stormwater runoff from the project site will, under any conditions, flow onto Petitioner's property.

      
      

   5. Phase I of the project has been designed to minimize the potential for the creation of aerodynamically or hydrodynamically propelled missiles in the event of a major storm. The asphalt surface of the parking lot is designed to break into chunks which will settle into the sand or water when exposed to wind and water forces. The parking meters are set four feet into the ground which reduces their potential to act as missiles, but even should the beach recede to the point where the meters are installed, evidence of record in this proceeding establishes that they will fall to the base of the eroded dune wall and will be washed out to sea rather than be propelled shoreward either by water or air.

      
      

   6. Various storm surge computer models for pre- and post-construction conditions at various locations on the property were performed. The result of these models shows that there will be no difference in impact on the beach dine system and adjacent property between the pre- and postconstruction profiles in the event of a ten-year storm. Further, computer models actually showed that there will be less erosion for the post-construction profile than for the preconstruction profile in the event of a twenty-year storm surge. In the event of a fifty-year or greater storm event, the beach profile for both pre- and postconstruction in the project area would be inundated, so that the impact of such a storm will be the same with or without the proposed construction. Evidence of record does, however, establish that based upon postconstruction conditions as proposed in the permit application it would take a greater storm to erode material from the postconstruction profile, thereby establishing that the proposed project will afford greater protection than existing topography.

      
      

   7. It appears from the record in this proceeding that Hollywood's Permit Application 50-41 is complete, and that DNR has in its possession all information necessary and required by law for the processing of the permit application. Engineering plans submitted in support of the application for Phase T have been signed and sealed by a professional engineer registered in the State of Florida.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.57(1), Florida Statutes.

      
      

   9. DNR has statutory authority to issue or deny permits for excavation, construction, or alteration of existing ground elevations seaward of the Coastal Construction Control Line in Broward County, Florida. Section 161.053(4), Florida Statutes. See also, Rule 165-33.06, Florida Administrative Code.

      
      

   10. Rule 165-33.07(2), Florida Administrative Code, requires that, in the event of construction activities landward of the Coastal Construction Control

       Line " . . . all structures shall be designed so as to minimize any expected adverse impact on the beach system or adjacent property."

       
       

   11. Rule 165-33.02(23), Florida Administrative Code, provides, in part, as follows:

       
       

       'Structure' is the composite result

       of putting together, or building related components in an ordered scheme and in- cludes the following:

       1. Major structure shall include houses, apartment buildings, condominiums, motels, hotels, other types of dwellings, restaurants, towers, swimming pools, pipe- lines, piers and other projects having the potential for substantial impact on the beach and dune systems.

       2. Minor structures shall include uncovered paved areas (e.g., parking areas . .) . . . which require material

          alteration of topography. . . . Usage will not be the only criterion used to classify structures as minor, but it shall also be a characteristic of minor structures that they are considered to be expendable under design wind, wave, and storm forces. (Emphasis added.)

          
          

   12. Rule 16B-33.07(5), Florida Administrative Code, provides that:

       
       

       (5) Minor structures need not meet specific structural requirements for wind and wave forces, but they shall be designed to produce the minimum adverse impact on the beach and dune system and adjacent properties and to reduce the potential

       for generating aerodynamically or hydro- dynamically-propelled missiles.

       
       

   13. Based upon the foregoing Findings of Fact and Conclusions of Law, it is specifically concluded that the Phase I project embodied in Permit Application 50-41 is a "minor structure," and that it meets all the aforementioned design criteria contained in Chapter 165-33, Florida Administrative Code. Accordingly, it is

RECOMMENDATION

RECOMMENDED That a Final Order be entered by the State of Florida, Department of Natural Resources, granting the requested permit.

DONE AND ENTERED this 25th day of October, 1983, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1983.

COPIES FURNISHED:

Steven L. Josias, Esquire Donald J. Dooty, Esquire

3040 East Commercial Boulevard Fort Lauderdale, Florida 33308

Deborah A. Getzoff, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Leonard Lubart, Esquire Post Office Box 2207 Hollywood, Florida 33022

Elton J Gissendanner, Director Department of Natural Resources Executive Suite

3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Docket for Case No: 82-003234

Orders for Case No: 82-003234