STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

ROLAND PETERSON, )

)

Petitioner, )

)

vs. ) Case No. 85-4012

)

DEPARTMENT OF NATURAL )

RESOURCES, DIVISION OF )

BEACHES AND SHORES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice; the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on March 21, 1986 in St. Augustine, Florida.

APPEARANCES

For Petitioner: Woodrow F. Harper, Esquire

Post Office Drawer 1420

St. Augustine, Florida 32085-1420

For Respondent: Andrew S. Grayson; Esquire

Suite 1003, Douglas Building 3900 Commonwealth Boulevard

Tallahassee; Florida 32303

and

Dean C. Kowalchyk, Esquire The Capitol, Lower Level 04 Tallahassee, Florida 32301

BACKGROUND

This matter arose when respondent, Department of Natural Resources; Division of Beaches and Shores (DNR), issued proposed agency action on October 23, 1985, wherein DNR proposed to deny three applications for coastal construction control line permits filed by petitioner, Roland Petergon. The requested permits would authorize Peterson to construct a snack bar, shell driveway, two wood decks, a beach/dune walkover structure and two single family residences on three adjacent lots on Anahima Drive,

north of St. Augustine Inlet in St. Johns County. In general terms the grounds for denial were that the proposed structures would have a cumulative adverse impact on the beach and dune system and adjacent properties, the property is "extremely vulnerable" to the impact of a major storm; and the projects are partially seaward of the seasonal high water line which meanders on the beach area. According to the proposed agency action, said denial is required by Rules 16B-33.05(1); (2) and (7); 16B- 33.07(1); (3) and (5), Florida Administrative Code, and

Subsection 161.053 (6)(b); Florida Statutes (1985).

By his petition filed on November 12; 1985; petitioner seeks to contest the proposed denial of his applications on the ground the denial "constitutes an inverse condemnation of petitioner's property and interferes with petitioner's peaceable quiet and highest, best use and enjoyment of his property."

The matter was forwarded to the Division of Administrative Hearings by respondent on December 2, 1985 with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated January 13, 1986; a final hearing was scheduled for February 6, 1986 in St. Augustine; Florida. At the request of respondent, the matter was rescheduled to March 21, 1986 at the same location.

At final hearing, the parties stipulated to all relevant facts and offered a number of documents which were received in evidence as hearing officer composite exhibit 1.

The transcript of hearing was filed on April 4; 1986.

Proposed findings of fact and conclusions of law were filed by respondent on April 22; 1986. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

The issue herein is whether petitioner's applications to construct a snack bar, shell driveway; two wooden decks, a beach/dune walkover structure, and two single family residences in St. Johns County should be approved.

Based upon the stipulation of counsel, and documents offered into evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other.

2. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985.

   
   

3. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area.

   
   

4. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

6. Initially, it is noted that petitioner has raised by pleading the contention that "the denial of the permits constitutes an inverse condemnation of Petitioner's property and interferes with Petitioner's peaceable quiet and highest, best use and enjoyment of his property." At hearing counsel candidly acknowledged that petitioner is now exhausting his administrative remedies by testing the propriety of the agency action so that he may then raise the taking claim in circuit court. See, Albrecht v. State, 444 So. 2d 8 (Fla. 1984). Therefore, this action

   concerns only the propriety of the agency action to deny the permits.

   
   

7. Subsections 161.053(6)(a)-(c), Florida Statutes (1985); provides as follows:

   
   

   (6)(a) As used in this subsection:

   
   

   1. "Frontal dune" means the first natural or manmade mound or bluff of said which is located landward of the beach and which has sufficient vegetation, height, continuity and configuration to offer protective value.

      
      

   2. "Seasonal high-water line" means the line formed by the intersection of the rising shore and the elevation of 150 percent of the local means tidal range above local mean high water.

      
      

      1. After October 1, 1985, and notwithstanding any other provision of this part, the department has delegated permitting authority pursuant to subsections (4) and (15), shall not issue any permit for any structure, other than a coastal or shore protection structure, minor structure, or pier, meeting the requirements of this part, or other than intake and discharge structures for a facility sited pursuant to part II of chapter 403, which is proposed for a location which, based on the department's projections or erosion in the area, will be seaward of the seasonal high-water line within 30 years after the date of application for such permit. The procedures for determining such erosion shall be established by rule. In determining the area which will be seaward of the seasonal high-water line in 30 years, the department shall not include any areas landward of a coastal construction control line.

      2. Where the application of paragraph (b) would preclude the construction of a structure, the department may issue a permit for a single-family dwelling for the parcel so long as:

      1. The parcel for which the single-family dwelling is proposed was platted or subdivided by metes and bounds before the effective date of this section;

         
         

      2. The owner of the parcel for which the single-family dwelling is proposed does not own another parcel immediately adjacent to and landward of the parcel for which the dwelling is proposed:

         
         

      3. The proposed single-family dwelling is located landward of the frontal dune structure; and

         
         

      4. The proposed single-family dwelling will be as far landward on its parcel as is practicable without being located seaward of or on the frontal dune.

      
      

      Accordingly, if a proposed project, other than a minor structure or pier; lies seaward of the frontal dune and seasonal high-water line, there is an absolute prohibition against said construction. The parties having stipulated that the projects in question lie seaward of the frontal dune and seasonal high-water line, the applications must be denied under the foregoing statute.

      
      

8. At final hearing petitioner stated he intended to raise by post-hearing memorandum the legal effect of his filing the applications before October 1; 1985, when the amendment to Subsection 161.053(b), Florida Statutes (1985), became effective.1 However, no post-hearing memorandum was filed; and consequently the issue has been deemed to be waived. Nonetheless; it is-noted that the applications were found to be complete on August 6, 1985, and while being processed by the agency, the new law which barred the issuance of permits for construction seaward of the seasonal high-water mark became effective. Although petitioner presumably believes he is entitled to the permits under these circumstances, the law is clear that in license application cases, statutes in effect at the time the agency makes its decision apply. Bruner v. Board of Real Estate, 399 So. 2d 4 (Fla. 1st DCA 1981). Compare, Turro v. Department of Health and Rehabilitative Services, 458 So. 2d 345 (Fla. 1st DCA 1984) (rule adopted during course of proceeding applicable and controlling on its effective date). Therefore, the agency properly applied Subsection 161.053(b), Florida Statutes (1985), in denying the requested permits.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that application numbers SJ 220, SJ 221 and SJ

222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED.

DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.

ENDNOTE

1/ As defined by counsel at hearing, the issue concerns "the effect of the effective date of provision 161.053 subsection 6.

COPIES FURNISHED:

Dr. Elton J. Gissendanner Executive Director

Dept. of Natural Resources 3900 Commonwealth Blvd.

Tallahassee, Florida 32303

Woodrow F. Harper, Esq.

P. 0. Drawer 1420

St. Augustine, Florida 32085-1420

Andrew S. Grayson, Esq. Suite 1003, Douglas Bldg. 3900 Commonwealth Blvd.

Tallahassee, Florida 32303

Dean C. Kowalchyk, Esq. The Capitol, LL04

Tallahassee, Florida 32301

APPENDIX

RESPONDENT:

1. Covered in background and finding of fact 2.

   
   

2. Covered in finding of fact 2.

   
   

3. Covered in finding of fact 2.

   
   

4. Rejected on the basis this fact was not a part of the stipulation.

   
   

5. Covered in finding of fact 3 to the extent such findings were a part of hearing officer exhibit 1.

   
   

6. Covered in finding of fact 3.

   
   

7. Covered in finding of fact 4.

   
   

8. Covered in finding of fact 4.

*No proposed findings of fact were filed by petitioner.

Docket for Case No: 85-004012

Orders for Case No: 85-004012