STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT W. DODT, M.D., )

)

Petitioner, )

)

v. ) CASE NO. 84-3997

)

STATE OF FLORIDA, ) DEPARTMENT OF NATURAL RESOURCES, ) and NANNETTE K. SCOGGINS, )

)

Respondents. )

)

RECOMMENDED ORDER

The hearing in this cause which was held on March 15, 1985, in Bradenton, Florida, before Diane A. Grubbs, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert W. Dodt, M.D.

Manatee Eye Clinic

217 Manatee Avenue, East Bradenton, Florida 33508

For Respondents: Andrew S. Grayson, Esquire

Department of Natural Resources

3900 Commonwealth Boulevard, Suite 1003

Tallahassee, Florida 32303 Representing the Department of Natural Resources

Ross A. McVoy, Esquire David Eastman, Esquire

318 North Monroe, Tallahassee, Florida 32302

Representing Nannette K. Scoggins ISSUE

Whether the Department of Natural Resources (DNR or Department) should issue a permit to Nannette K. Scoggins to construct seaward of the coastal construction control line.

BACKGROUND

On November 17, 1983, Nannette K. Scoggins made application to DNR for a permit to construct a project seaward of the coastal construction control line in Manatee County, Florida. DNR notified adjacent property owners, including the petitioner, of the application, and issued a notice of intent to recommend

approval of the permit to the Governor and Cabinet sitting as the agency head. The permit application was scheduled for hearing before the Governor and Cabinet on October 16, 1984. The petitioner, by telegram on October 15, 1984, requested an administrative hearing on the permit application. On October 23, 1984, DNR received a formal petition requesting a hearing. In the petition, petitioner objected to the approval of the permit on the following grounds: (1) The value of petitioner's property would decrease because the proposed construction would partially block petitioner's view of the water; (2) The beach is unstable and to permit construction in an area of active erosion would violate prudent shore management; (3) The proposed project would have an adverse impact on adjacent property; (4) The mitigating features stated in the proposed approval were misleading and erroneous.

The Department referred the petition to the Division of Administrative Hearings on October 30, 1984. On December 20, 1984, Nannette K. Scoggins filed a petition to intervene as a party respondent, and the petition was granted on January 8, 1985.

Prior to the hearing, the parties filed a prehearing stipulation which set forth the facts that were admitted, the issues which remained in dispute, and the witnesses and exhibits which might be presented by the parties. At the hearing, the petitioner presented the testimony of five witnesses: Robert W. Dodt, William C. McLean, Albert Guemmer, Jay Allen Pritchett, and David Straz, all of whom are or were owners of property located in the vicinity of the proposed project. Petitioners' exhibits numbered 1, 2(b), and 3 were admitted into evidence. Exhibit 2(a) was not admitted into evidence but was proffered by the petitioner. The Department of Natural Resources presented the testimony of Carlos Carrero, an Engineer III with the Department of Natural Resources, and Ralph Clark, Chief of the Bureau of Coastal Engineering and Regulation of the Division of Beaches and Shores. Respondents presented six exhibits, numbered 1, 2, 3, 4(a), 4(b), and 5, all of which were admitted into evidence.

At the end of the hearing, respondent Scoggins moved to dismiss the petition for lack of standing. A written motion to dismiss and response were filed subsequent to the hearing. The parties have filed proposed findings of fact and conclusions of law which have been carefully considered. 1/

FINDINGS OF FACT

1. Nannette K. Scoggins is the owner of the real property located at 5622 Gulf Drive, Holmes Beach, Florida in Manatee County. Nannette K. Scoggins' property, the petitioner's property, 5624 Gulf Drive, and the other adjacent property, 5620 Gulf Drive, are zoned as "A-1 Hotel-Motel" under the City of Holmes Beach Zoning Ordinance.

   
   

2. On November 13, 1983, Mrs. Scoggins submitted to DNR an application for a permit for construction seaward of the coastal construction control line (control line). The proposed project, known as Jansea Place, would consist of two multifamily dwellings, four units to a building, divided by a swimming pool. A portion of the most seaward building would extend a maximum of 57 feet seaward of the control line.

   
   

3. By letter dated July 11, 1984, DNR notified petitioner that the department was considering the permit application. The petitioner responded by letter dated July 18, 1984, objecting to any construction seaward of the control line. On October 1, 1984, petitioner received notification that DNR intended to recommend approval of the permit. The permit was scheduled for a vote by the

   Governor and Cabinet on October 16, 1984. The staff of DNR recommended approval of the permit. By telegram dated October 15, 1984, the petitioner requested an administrative hearing, and on October 22, 1984, petitioner filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.

   
   

4. The application for permit No. ME-89 is a complete application for permit to construct seaward of the coastal construction control line. On October 5, 1983, the Superintendent of Public Works of the City of Holmes Beach certified that this project does not violate any ordinance of the City of Holmes Beach. The plans for the proposed project are signed and sealed by an architect registered in the State of Florida, and the submitted plans comply with the design standards established in Rule 16B-33.07, Florida Administrative Code to resist adequately the natural forces associated with a 100-year return interval storm event. The plans, specifications, drawings and other information submitted to DNR with the application for permit to construct seaward of the coastal construction control line are complete and accurate, and meet the requirements of DNR for that purpose. Under the provisions of Rule 16B-33, Florida Administrative Code, the application was determined to be complete on August 6, 1984.

   
   

5. The proposed construction is located landward of an existing vertical concrete bulkhead. The seawall was built jointly by the Scoggins and Mr. McLean, who owns the property immediately to the south of the Scoggins' property. The seawall was built after the hurricane of 1972 because the existing dune system had been destroyed. Since that time, the mean high water line has continued to encroach landward to the point where it is now east of the wall. However, the seawall is not necessary for the protection of the proposed building. Although the seawall would fail under the direct impact of a major hurricane, the proposed building is adequately designed to withstand the impact erosion, the wave loads, the winds, and the water forces associated with a major hurricane.

   
   

6. The necessity and justification for the project's location in relation to the control line is stated in the application, and petitioner has not challenged the necessity or justification. The City of Holmes Beach Zoning Ordinance requires that the buildings be separated by a minimum of 30 feet. Since the proposed buildings are separated by 30 feet, the proposed seaward building is located as far landward as possible without violating the zoning ordinance.

   
   

7. Erosion and structural damage occurred as a result of Hurricane Agnes in 1972 and the "No Name" storm in 1982 in the area between 1,000 feet south of the Scoggins' property and 500 feet north of the Scoggins' property. Although the beach was fairly stable from 1974 to 1979, the beach began to erode in 1980. When the seawall was built in 1974, the dune line was even with the seawall. However, as can be seen from a comparison of the photographs taken in June of 1979 with those taken in early 1985, the beach has eroded since June of 1979 and the dune line is now several feet landward of the seawall.

   
   

8. The DNR recommendation for approval of the Scoggin's permit application was based upon historical erosion data for the period between 1940 and 1974, which was the most recent data available that could be used to review the project. Mr. Clark stated that the application was recommended for approval based on the design of the proposed building and its alignment with existing

   structures built seaward of the control line. The proposed project is located landward of a line of existing structures. Although the adjacent properties have been affected by erosion, there was no evidence presented to show that the existing structures located seaward of the control line have been unduly affected by erosion.

   
   

9. In 1974, when the seawall was being constructed, the worker building the seawall dug up part of the petitioner's property and destroyed the sea oats he had planted. However, the proposed project has a driveway encircling the building which would provide vehicular access to the seawall if necessary.

   
   

10. The proposed project will partially obstruct petitioner's view to the southwest. However, there was no evidence presented that petitioner's property or the other adjacent property, would be adversely affected in any other way by the proposed project. There was no evidence presented that the proposed project would be affected by, or have an effect on, beach or coastal erosion. The proposed project would have no effect on the beach dune system.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 161.053, Florida Statutes, provides for the establishment of coastal construction control lines along the sand beaches of the state by the Department of Natural Resources. The control lines are to 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." Once the control line is established, no person or entity may construct seaward of the control line without a permit issued by the Department. Section 161.053(2) and (4), Florida Statutes.

    
    

13. Permitting for construction seaward of the control line is governed by Section 161.053(4), Florida Statutes, and Rule 16B-33, Florida Administrative Code. Section 161.053(4)(a) provides that the Department may grant a permit to construct seaward of the control line upon receipt of an application from a property owner and upon consideration of facts and circumstances which, in the opinion of the Department, clearly justify such a permit. Such facts and circumstances include "adequate engineering data concerning shoreline stability and storm tides related to 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 any proposed structures or activities upon such beach dune system." Additionally Section 161.053(4)(b) provides that the Department may issue a permit if, in the immediate area, a number of existing structures have established a reasonably continuous and uniform construction line closer to the mean high water line than the control line. Rule 16B-33.06(2), Florida Administrative Code, which implements Section 161.053(4)(b), provides:

    
    

    If in the immediate 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 coastal construction control line, and if the existing structures have not been unduly affected by erosion, the Governor and

    Cabinet...may issue a permit for the activity. However, if such existing structures have been substantially affected by erosion, the Governor and Cabinet...shall require all proposed construction...to be designed and located as far landward from the

    ...coastal construction control line as possible on the applicant's property....

    
    

14. The parties stipulated that the application for permit submitted by Mrs. Scoggins was complete and accurate, and the application was admitted into evidence. There was evidence presented that the proposed construction was landward of a line of existing structures, and it was established that the proposed construction was located as far landward as possible. Both of the DNR employees who reviewed the application testified that the permit should be approved based on the information provided in the application and other available data. Thus, the applicant presented a "prima facie case" showing entitlement to the permit.

    
    

15. In his proposed findings of fact and conclusions of law, petitioner contends that, by stipulating that the application was "complete", petitioner meant only that Mrs. Scoggins had filed all the necessary documents, not that petitioner "was in complete agreement that these documents fulfilled all the requirements of law". Although this contention may be accurate, it does not advance petitioner's position. In Florida Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981) the court stated:

    
    

    "...[N]o third party, 'merely by filing a petition' should be permitted to require the applicant to 'completely prove anew' all items in a permit application down to the last detail. The petitioner must identify the areas of controversy and allege a factual basis for the contention that the facts relied upon by the applicant fall short of carrying the . . . burden cast upon the applicant. The 'burden of proof' is upon the petitioner to go forward with evidence to prove the truth of the facts asserted in his petition."

    
    

    In the prehearing stipulation the petitioner set forth the reasons why he opposed approval of the application. Although the initial petition and the statements in the prehearing stipulation serve to "identify the areas of controversy", petitioner did not support the facts alleged with proof at the hearing. Out of the five factual assertions made by petitioner in the prehearing stipulation and the four allegations in the petition, some of which were the same, only one allegation was proved: the proposed building will partially block the petitioner's view to the southwest. However, that fact does not provide a ground for denying the permit. Therefore, in accordance with Florida Department of Transportation v. J.W.C. Co., Inc., the application for permit should be approved.

    
    

16. At the end of the hearing the respondents moved to dismiss the petition for lack of standing and a written motion to dismiss was subsequently filed. Respondents contend that petitioner has failed to demonstrate that his

substantial interest will be affected by the proposed agency action. In Agrico Chemical Co. v. Department of Environmental Regulation, 406 So2d 478 (Fla. 2d DCA 1981), the court stated:

We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect.

Respondent's contend that petitioner failed to produce any evidence to show that he will suffer injury in fact. Respondents note that there has been no evidence submitted to demonstrate any adverse impact on petitioner's property or other neighboring property resulting from the proposed project. This, of course, is true; petitioner has failed to prove any injury in fact. But the failure of petitioner to show any injury in fact is due to the petitioner's failure to prevail on the merits of the case. If, indeed, a legally cognizable injury had been found, petitioner, as an adjacent property owner, would be among those who would have sustained it; that alone is sufficient to establish standing 2/

when the interest sought to be protected by the petitioner is within the zone of interests to be protected or regulated by Chapter 161. Therefore, the motion to dismiss for lack of standing is denied. 3/

RECOMMENDATION

Upon consideration of the foregoing, it is recommended that DNR issue Permit Number ME-89 to Nannette K. Scoggins.

DONE and ENTERED this 28th day of June, 1985, in Tallahassee Leon County Florida.

DIANE A. GRUBBS

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 28th day of June, 1985.

ENDNOTES

1/ The letter from Dr. Dodt dated March 20, 1985, and his response to the motion to dismiss have been treated as proposed findings of fact and conclusions of law.

2/ See Baker v. Carr, 369 U.S. 186,208 (1962).

3/ The motion to dismiss for lack of standing could also be denied on procedural grounds. Rule 28-5.205, Florida Administrative Code, and Rule 22I- 6.04(5), Florida Administrative Code, require that a motion to dismiss a petition be filed within 20 days of filing the petition. The motion to dismiss filed in this cause was, therefore, untimely. It was filed well after 20 days after the petition was filed and more than 20 days after the petition to intervene was granted.

COPIES FURNISHED:

Robert W. Dodt, M.D.

Manatee Eye Clinic

217 Manatee Avenue, East Bradenton Florida 33508

Andrew S. Grayson, Esquire Department of Natural Resources 3900 Commonwealth Boulevard

Suite 1003

Tallahassee, Florida 32303

Ross A. McVoy Esquire David Eastman, Esquire

318 North Monroe, Tallahassee, Florida 32302

Docket for Case No: 84-003997

Orders for Case No: 84-003997