STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD S. COLEY AND JUANITA G. COLEY, )

)

Petitioners, )

)

vs. ) CASE NO. 84-0508

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Port St. Joe, Florida, on August 3, 1984, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioners: Cecil G. Costin, Jr., Esquire

Post Office Box 98

Port St. Joe, Florida 32301

For Respondent: Andrew Grayson and

John Williams, Esquires Department of Natural Resources Commonwealth Boulevard-3900 Tallahassee, Florida 32303

ISSUE PRESENTED

Whether Petitioners' application for a permit to construct a dwelling in Walton County, Florida, should be approved, pursuant to Chapter 161, Florida Statutes.

In January of 1984, Respondent Department of Natural Resources provisionally denied Petitioners' application for a permit pursuant to Chapter 161, Florida Statutes, to construct a dwelling on their property in Walton County seaward of the existing coastal construction control line. Petitioners requested a hearing pursuant to Section 120.57(1), alleging that the denial of their application was unlawful on constitutional grounds and that it exceeded Respondent's discretionary powers under Chapter 161. The request for hearing was referred by Respondent to the Division of Administrative Hearings, Case No. 84-0508. Thereafter, Respondent's motion to strike those aspects of the petition alleging the unconstitutionality of the proposed denial was denied on the basis that Petitioners properly may preserve such matters for any appellate review.

Thereafter, Petitioners sought to amend their petition to allege the invalidity of certain of Respondent's rules and, although such petition was granted, Petitioners were informed that any administrative determination of the invalidity of rules must be made the subject of a separate petition filed with the Director of the Division of Administrative Hearings. On June 11, 1984, Petitioners filed a petition with the Division challenging the validity of certain of Respondent's rules which were cited by Respondent as the basis for the proposed denial of Petitioners' application for a permit. The petition alleged that said rules were not appropriate to the ends specified in Section 161.053, Florida Statutes, that the effect of the rules was to establish a class of property owners who could be excluded from receiving permits to construct dwellings seaward of the coastal construction control line merely because their lots or parcels of land are larger than their neighbors or other adjacent owners, and that such rules are arbitrary and capricious as they relate to the petitioners because other property owners in Walton County had been permitted by Respondent to construct dwellings similar to hat proposed by the Petitioners beyond the coastal construction control line. DOAH Case No. 84-0508 and the case involving the rule challenge, DOAH Case No. 84-2053R, were consolidated for purposes of hearing.

At the hearing, Petitioners presented the testimony of Brett Moore, a coastal engineer employed by the DNR Division of Beaches and Shores, Dennis Evans, an architect, and Petitioner Edward S. Coley. Petitioner submitted ten exhibits in evidence Respondent presented the testimony of Brett Moore, Deborah Flack, Director of the Division of Beaches and Shores, and Ralph Clark, Chief of the Bureau of Coastal Engineering and Regulation. Respondent submitted 21 exhibits in evidence.

Posthearing submissions submitted by the parties in the form of Proposed Recommended Orders have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.

FINDINGS OF FACT

1. In 1981 Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley, Petitioners' Exhibit 1, Respondent's Exhibit 1).

   
   

2. At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach.

   Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20).

3. On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984, that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows:

   
   

   The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended

   25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area.

   . . .

   * * *

   Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line.

   
   

   By letter of September 29, 1983, Respondent had advised Petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable

   structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line.

   Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16).

   
   

4. The height of the dune line on Petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under dead covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to come extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8).

   
   

5. Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21).

   
   

6. Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10).

   
   

7. Although conflicting evidence was received as to whether or not the existing structures east of petitioners' lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioners' Exhibit 1).

   
   

8. Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2).

   
   

9. The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4).

   CONCLUSIONS OF LAW

   
   

10. Petitioners seek approval of their application for a permit to construct a dwelling seaward of the coastal construction control line in Walton County under the provisions of Section 161.053, Florida Statutes, which reads pertinently as follows:

    
    

    Section 161.053 Coastal Construction and Excavation: Regulation on county basis.--

    1. The Legislature finds and declares that the beaches in this state and coastal barrier dunes adjacent to such beaches, by their nature, are subject to frequent and severe fluctuations and represent one of the most valuable natural resources of Florida and that it is in the public interest to preserve and protect them from imprudent construction which can jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, and endanger adjacent property and the beach-dune system. In furtherance of these findings, it is the intent of the Legislature to provide that the department establish coastal construction control lines on a county basis along the sand beaches of the state running on the Atlantic Ocean or the Gulf of Mexico. Such line shall be established so as to define that portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions . . . Special siting and design considerations shall be necessary seaward of established coastal construction control lines to ensure the protection of the beach-dune system, proposed or existing structures, and adjacent properties.

    2. . . . Upon the establishment, approval, and recordation of such control line or lines, no person, firm, corporation, or governmental agency shall construct any structure whatsoever seaward thereof; . . . or damage or cause to

       be damaged such sand dune or the vegetation growing thereon seaward thereof except as hereinafter provided.

       * * *

       1. . . . a permit to . . . construct on property seaward of the established coastal construction control lines may be granted by the department as follows:

          1. The department may authorize . . . erec- tion of a structure at any coastal location

             as described in subsection (1) upon receipt of an application from a property . . . owner and upon consideration of facts and circumstances, including adequate engineering data concerning

             shoreline topography, design features of the proposed structures or activities, and potential impacts of the location of such structures or activities including potential cumulative effects of the proposed structures or activities upon such beach-dune system, which, in the opinion of the department, clearly justifies such a permit.

          2. If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing, and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authoriza tion from the department if such structure is also approved by the department.

       
       

11. The above statutory provision makes it clear that construction seaward of the coastal construction control line is prohibited unless pursuant to a permit issued by Respondent based on considerations that clearly justify such a permit in light of stated criteria such as design features of the pro posed structure and potential impact of its location on the beach-dune system. Additionally, further discretionary authority is given to the Department to approve permits when there are a number of existing structures in the immediate area that have established a "reasonably continuous and uniform construction line" beyond the coastal construction control line, and if such structures have not been unduly affected by erosion.

    
    

12. Petitioners contend that the proposed structure is adequately designed, and would not jeopardize the beach-dune system, accelerate erosion, or adversely impact on adjacent property. The therefore believe that Respondent's proposed denial of their application on the grounds that they are not effectively utilizing their property landward of the control line is unconstitutional, arbitrary, illogical, without any foundation in law, and exceeds the range of agency discretion and is inconsistent with officially stated agency practice. No issue has been raised concerning the adequacy of Petitioners design of the proposed structure.

    
    

13. It is clear from the language of subsection 161.053(4) that the granting of a permit to construct seaward of the established coastal construction control line is discretionary with Respondent. As is the case with all applicants seeking permits, the burden of proof to establish justification for the issuance of a permit rests with petitioners. They have shown in this case that they meet the criteria specified in subsection 161.053(4)(b) insofar as a number of existing structures in the immediate contiguous or adjacent area to their proposed site constitute a reasonably continuous and uniform construction line closer to the line of mean high water than the established control line, and that such structures have not been unduly affected by erosion. It was obviously the intent of the Legislature in enacting such on exception to the general prohibition against construction seaward of the control line to recognize the realities of requiring a coastal land owner to site his dwelling substantially landward of those of his neighbors in the area. Such a requirement serves to block or limit the view of the seashore which is undoubtedly the prime reason that anyone would purchase residential property on

    a beach. It further appears to recognize the fact that permitting such a structure in a reasonably built up area would not set a bad precedent as might be the case if such a structure were to be placed in a relatively undeveloped beach area. The testimony of one of Respondent's officials that building at the Petitioners' proposed site would retard dine restoration after a major storm due to the fact that it would be the only remaining structure on the beach to have withstood such a storm is a rather novel concept. Using such logic, it could be said that if Petitioners' house was of a less sturdy design, it too would be demolished and thus not pose a problem to beach restoration.

    
    

14. Although Respondent's Rule 16B-33.05(6), F.A.C., encourages applicants to design proposed structures in such a manner as to effectively utilize all of their property landward of the control line, this is not couched in the form of a requirement and there was no showing that Respondent attempted to impose it as one. Also the portions of Respondent's Rule 16B-33.06(2) which purport to require such extreme set back as far "as possible" in certain situations are not deemed applicable in this case.

    
    

15. It is recognized that moving the proposed structure a greater distance landward would lessen the probability of damage to the beach-dune system. However, the benefits thus accruing to the state are not considered sufficient to out-weigh the disadvantages that such relocation would pose to the property owners. It is therefore concluded that Respondent should exercise its discretion as authorized by statute under this particular set of circumstances to approve Petitioners' application for permit.

In view of the foregoing, it is RECOMMENDED that:

Petitioners' application for a construction permit be approved pursuant to Section 161.053(4)(b), Florida Statutes.

DONE and ENTERED this 21st day of September, 1984, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 21st day of September, 1984.

COPIES FURNISHED:

Cecil G. Costin, Jr., Esquire Post Office Box 98

Port St. Joe, Florida 32301

Andrew Grayson and

John Williams, Esquires Department of Natural Resources Commonwealth Boulevard - 3900 Tallahassee, Florida 32303

Elton J. Gissendanner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Docket for Case No: 84-000508

Orders for Case No: 84-000508