Manson-Bing, an Engineer with DNR (received as an expert in the area of civil and coastal engineering); Ralph Clark, Chief of DNR's Bureau of Coastal Engineering and Regulation (received as an expert in the areas of civil, coastal and oceangraphic engineering); and Dr. Robert G. Dean, Director of DNR's Division of Beaches and Shores, received as an expert in the areas of civil and coastal engineering and coastal processes. Petitioners submitted 30 Exhibits which were received in evidence.
The parties were afforded leave to submit post-hearing memoranda supportive of their respective positions. The parties, through counsel, have submitted proposed memoranda supportive of their respective positions which were considered by me in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix to this Recommended Order. Additionally, the parties waived the time requirement that a Recommended Order be entered 30-days following the conclusion of the hearing.
Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.
Evidence reveals that the Karatinos family originally purchased this property in 1957 and Title has been within that family unit continuously until the present time. When originally acquired, the desire was to build a motel east of the roadway fronting the beach; however, because of various events, including the death of the Father (Petitioner Aphrodite Karatinos husband), the plans were postponed over the years until 1982 when the original petition was filed with DNR for a permit to build. Based on a discrepancy between the Town of Juno Beach's zoning and town comprehensive plan, Petitioners were unable to get local approval until such time as they could in essence, obtain a variance from Juno's comprehensive plan. Petitioners' obtained local approval from the Town of Juno Beach to construct a 2-unit family structure. (Petitioners' Exhibit 3).
On February 18, 1982, DNR received an application from Theodore B. Jenson, P.E., on behalf of Mrs. Aphrodite Karatinos and Nicholas Karatinos, for construction of a two-family residence and sea dune protection wall.
On March 13, 1986, Petitioners' application was determined to be complete (Respondent's Exhibit 1).
DNR made timely request for additionally information from Petitioners.
On May 20, 1986, Governor and Cabinet, sitting as the head of DNR, considered and approved the staff recommendation for disapproval of Petitioners' CCCL permit application, PD-108 (Respondent's Exhibit DD).
On the Governor and Cabinet agenda item, the staff concerns For the proposed project were summarized as follows:
The staff is concerned about the adverse impact of this project on the beach-dune system and adjacent properties. The coastal dune ridge, on which Ocean Boulevard (formally A1A) is located in the vicinity of this property, provides a narrow protective barrier for upland development landward of Ocean Boulevard. Seaward of Ocean Boulevard, 3 Multifamily dwellings exists within 1300 feet south of the project area, and one multifamily dwelling exists three miles north of the project area.
The cumulative impact of constructing additional buildings sited seaward of the frontal dune on the vegetated storm beam of the beach will result in the destruction of the barrier dune system along this stretch of coast.
Further, the Governor and Cabinet agenda item contained the following staff assessments:
The project will have a substantial adverse impact on the beach-dune system.
The project will have a significant adverse impact on the adjacent properties because construction activities on the proposed structure may be expected to induce substantial dune slope instability and deflation adversely impacting the dune system on this and adjacent properties. Additional adverse impact can be expected on this and adjacent properties due to the
substantial reinforced concrete wall located between
16 and 26 feet seaward of the control line.
The coastal dune on which Ocean Boulevard (Old A1A) is located provides a narrow barrier of the upland development. The cumulative impact of constructing dwellings along the
undeveloped coast to the north and seaward of Ocean Boulevard is expected to result in the destruction of the coastal barrier dune system. The damage to the dune system is expected to threaten Ocean Boulevard, which is an important evacuation route in the area.
The dwelling structure is not designed in accordance
with Subsection 15B-33.07(3) and (4), Florida Administrative Code to resist adequately the natural forces associated with a 100 year return interval storm event.
The landscaping is not consistent with Chapter 16B-
33, Florida Administrative Code.
Petitioners's property is located in a tidal coastal
area along the sandy beaches
of the Palm Beach County coastline.
Petitioners's property is part of the beach-dune system.
Natural Littoral Process
A natural seasonal littoral process affects beach-dune systems such as that upon which Petitioners' property is located.
During the summer season when the natural littoral process is progressing, offshore sediment is transported to the active beach where it is deposited and forms sand bars.
This dried sediment is then windborne inland and trapped by dune vegetation, thereby naturally nourishing the dunes.
During the winter season, heightened wave activity transports sediment from the active beach to an offshore location where a sand bar is formed.
This sand bar serves as a buffer to reduce the erosion effect of the heightened wave activity.
As this heightened wave activity subsides, sediment from the sand bar is again transported inland and eventually is redeposited and trapped upon the dunes. These dunes provide protection to upland properties from the impact of severe storm events. Interference with any portion of the cycle of sediment transport results in destabilized and stunted dunes.
A destabilized and stunted dune will be more severely impacted by erosion events, thereby increasing the risk of harm to adjacent properties and threatening the entire beach-dune system. During an erosion event the winter cycle is exaggerated. In a major erosion event such as a hurricane, tropical storm, northeasterly, and the like, the dramatically heightened wave activity transports large amount of sediments from the beach-dune system to an offshore location where a sand bar formed. The sand bar serves as a buffer to reduce the erosion effect of the storm. The presence of a layer of non-erodible material enhances the zone of erosion scour in a landward direction.
Salt-Resistant Dune Vegetation
Salt-resistant dune vegetation such as sea oats, sea grape and yucca are particularly suited to the task of trapping wimdborn sand and stabilizing the dune face. These types of vegetation thrive in areas of low fresh water availability, high salt content, and low soil nutrient conditions, by virtue of their strong reliance on the photosynthetic process.
These types of vegetation will not survive under reduced light or shaded conditions. There exists no substitute which can perform the dune stabilizing and sustaining functions under the reduced sunlight which would exist under an elevated structure such as proposed.
These types of vegetation are also dependent on a complex microbiological relationship which is not easily, if at all, reestablished following a disturbance such as the proposed construction.
Effect of Site Disturbance
Construction of the proposed structure by Petitioners will involve significant site disturbance and excavation. Disturbance includes destruction of the dune vegetation. The construction activities will not only destroy the existing dune vegetation but also will disrupt the dune existing microbiological relationship making re-vegetation difficult even where adequate sunlight is available. Loss of dune vegetation terminates and destabilizes dune leaving it extremely vulnerable to erosive forces.
In addition to the initial disturbance and destruction of dune vegetation caused during construction, the presence of man made structures sited and located on the seaward face of the dune, decreases or excludes direct sunlight to the area below the structure. This reduction or exclusion of sunlight further results in the inability of dune stabilizing and sustaining vegetation to reestablish and maintain itself.
Structures which are built below grade within the erosion scour zone, such as seawalls, inhibit the landward progress of the erosion scour.
The erosion scour on either side of the inhibiting structure will proceed further landward than the unobstructed zone of erosion scour resulting in increased erosion on any adjacent proper ties to the inhibiting structure.
Cumulative Impact
Although an individual construction activity or structure, as is here proposed, may not have an adverse impact on the beach-dune system, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach-dune system along that segment of the shoreline.
Zone of Erosion Scour
In order to evaluate the impact of a proposed structure on the beach- dune system it is necessary to determine the depth and landward extent of erosion scour during a 100 year storm event.
Petitioners' determination of erosion scour was not based upon a particular formula, model, or methodology. Additionally, Petitioners' engineer made no further study to determine the accuracy of this or any preceding estimates.
The model used by DNR is a precise mathematical calculation of the depth and landward limit of erosion attributable to a 100 year storm event. Additionally, DNR's model has been calibrated utilizing the known erosional effects of actual storm events. DNR's model has been subjected to a blind, hands-off test of its reliability, which demonstrates its accuracy for predicting depth and width extent of erosion scour during a 100 year storm event.
DNR's model is the most accurate model available for determining the depth and landward extent of erosion scour during a 100 year storm event.
The Balsillie model, which was developed after Petitioners engineer made his estimate of erosion scour, is a model which estimates the volume of erosion scour. That model does not estimate the landward extent of erosion scour. However, the Balsillie model does contain a mathematical formula which will estimate the percentage of the volume of erodible material which will be eroded above the storm surge elevation.
Application of the Balsillie model to Petitioner's proposed project demonstrates that the erosion scour from a 100 year storm event would extend landward of the proposed structure.
Impact of the Proposed Structure
The site disturbance necessary to construct the proposed structure will destroy virtually all salt-resistant dune vegetation on the site. Site disturbance will also disrupt the microbiological relationship that exists in the displaced sediment. Both these factors will likely result in a permanent destruction of dune stabilizing and sustaining vegetation creating enhanced vulnerability and eventual destruction of the dune system at the construction site. As a result of this destabilization, the adjacent properties also will exhibit an enhanced vulnerability to erosion.
Petitioners propose to construct a retaining wall on the landward side of their proposed structure. The retaining wall is a substantial wall and is proposed to be located below the level of the first finished floor of the structure and seaward of the CCL.
The erosion scour from a 100 year storm event will proceed landward of the retaining wall. This retaining wall will therefore act as a seawall.
The effect of the retaining wall during a 100 year storm event will result in enhanced erosion scour on the Petitioners' and adjacent properties, unless and until the wall is totally undermined by erosion.
The enhanced landward extension of erosion scour on either side of the retaining wall will breach Ocean Boulevard, an important evacuation route in the event of a severe storm event.
Ocean Boulevard (Old A1A) lies on the crest of the same dune upon which Petitioners propose their structure and proceeds parallel to the shoreline in the area of Petitioners' property.
The cumulative impact of siting the proposed and similarly located structures would be the destabilization of the entire seaward face of the dune upon which this evacuation route proceeds. The cumulative impact of the siting of structures in this area in locations similar to that proposed by Petitioners enhances the risk of destroying the evacuation route during a severe storm event.
Petitioners' proposed structure is to be pile elevated. The pilings for elevated structures must penetrate to a sufficient depth to support the structure during the onslaught of the horizontal force (wind and water) generated during a 100 year return storm event.
Determination of the depth of pile penetration requires knowledge of the substrata underlying the property. This determination also requires a simultaneous forces calculation which takes into account the combined effect of maximum aerodynamic (wind) and hydrostatic (wave) forces.
The soil study report commissioned by Petitioners is inadequate to evaluate whether rock exists in any substrata underlying Petitioners' property. For this reason, good engineering practices require the assumption that no rock underlies Petitioners' property and Petitioners' failure to proceed on that assumption has resulted in Petitioners' submission of an inadequate pile penetration proposal.
Petitioners' engineer failed to perform a simultaneous forces calculation which resulted in his submission of an understatement of required depth for pile penetration.
Petitioners' engineer relied upon an inaccurate estimate of the depth of erosion scour which resulted in his submission of understatements of the required depth of both pile penetration and the pile caps.
DNR made a determination of the correct depth of pile penetration utilizing a simultaneous forces calculation and the correct depth of erosion scour.
The result of DNR's calculation was a determination that the depth of pile penetration should be -17 N.G.V.D. as opposed to -10 NGVD proposed by the Petitioners.
DNR has not permitted any adjacent structures under the existing statutory and regulatory provisions. All of the structures immediately
adjoining Petitioners' property were constructed prior to the impact of the four (short incident) hurricanes and therefore those structures have not sustained the impact of a 100 year return storm event.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
DNR, through the Division of Beaches and Shores, administers a regulatory function over coastal construction and excavation activities pursuant to the Beach and Shore Preservation Act, Chapter 161, Florida Statutes. Section 161.053, Florida Statutes, authorizes the establishment and review of a line of jurisdiction known as the Coastal Construction Control Line (CCCL).
CCCLs are established on a county by county basis along sand beaches of the state fronting on the Atlantic Ocean and the Gulf of Mexico and are intended to represent 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.
Subsection 161.053(1), Florida statutes provides in pertinent part that:
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.
Pursuant to Subsection 161.053(:2), Florida Statutes, no person or entity may construct or excavate seaward of a coastal construction control line without a permit issued by DNR. CCCLs permitting is administered pursuant to Chapter 16D-33, Florida Administrative Code.
Permits are issued upon application of a property owner in consideration of:
Adequate engineering data concerning shoreline stability and storm tides related to shoreline topography;
Design features of proposed structures or activities; and
Potential impacts of the location of such structures or activities, including potential cumulative effects of any structures or activities upon such beach-dune system,
which in the opinion of the department, clearly justify such a permit. Subsection 161.053(5)(a), Florida Statutes.
Petitioners' proposed project is seaward of the established CCCL for Palm Beach County.
Applications for CCCL permits for most major activities are reviewed by DNR and set for consideration upon the agenda of the Governor and Cabinet, sitting as the head of DNR pursuant to Section 20.25, Florida Statutes.
The agenda item presented to the Governor and Cabinet - notes five assessments. Each of these assessments provides an independent basis for the denial of the permit application pursuant to Chapter 161, Florida Statutes and Rule 16B-33, Florida Administrative Code.
Additionally, Subsection 16B-33.005(1), Florida Administrative Code establishes a burden of proof for the applicant to show that development seaward of the CCCL is necessary and clearly justified. Petitioners have not established that its proposed project, which is seaward of the CCCL, is necessary and justified.
The standard of DNR's review for denial of this permit is that the agency had "extraordinary deference" in performing its statutory duties pursuant to Chapter 161, Florida Statutes. Island Harbor Beach Club, Ltd., et al, v. Department of Natural Resources, 11 FLW 1949, 1955.
The beach dune system is that portion of the coast where there has been, or is expected to be over time and as a matter of natural occurrence, cyclical and dynamic emergence, destruction, and reemergence of beach and dune structure. Island Harbor supra, 11 FLW at 1951.
The model used by DNR accurately predicts the zone of severe topographical fluctuation from a 100 year return storm event.
DNR is required to apply the law as it exist at the time it makes a permitting decision, and not the law that exist at the time the permit application is filed or becomes complete. See 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).
DNR is required to protect the beach and dune system. The structure a- proposed by Petitioners would have a substantial adverse impact on the beach and dune system. Section 160.053, Florida Statutes.
DNR is required to deny permits to structures where the proposed structure would have an adverse impact on adjacent property. The structure, as proposed by Petitioners, will render the dune slope unstable and therefore adversely affect the adjoining properties. The retaining wall proposed in the structure will also cause enhanced erosion scour which will adversely affect properties landward and/or otherwise adjacent to Petitioners' property.
DNR is required to consider the cumulative impact of a proposed structure on the entire beach-dune system. The cumulative impact of the proposed structure would be the destruction of coastal barrier dunes which would render unprotected, structures upland of the barrier dune. One of these structures is Ocean Boulevard (Old S.R. A1A), a major evacuation route for the area. (Section 161.053, Florida Statutes).
DNR is required to provide that permitted structures be constructed so as to resist adequately, the natural forces of a 100 year return storm event. The pile penetration proposed in the permit application is not adequate to resist those forces. Rule 16B-33.007 (3), Florida Administrative Code.
DNR is required to ensure the survival of the beach and dune system. The proposed structure will result in the destruction and non replacability of vegetation on the site and will result in destruction of the dune system. To issue a permit in these circumstances would be in contravention of Section 161.053, Florida Statutes and Rule Chapter 16B-33, Florida Administrative Code. Finally, while not cited as a reason by the Governor and Cabinet, acting as head of DNR in denying Petitioners' permit, Rule Section 16B-33.007(4)(f), Florida Administrative Code, forbids the construction of a wall, such as that proposed, for the landward side of the proposed structure.
Section 161.053, Florida Statutes and Rule 16B-33.O0B(2)(c), Florida Administrative Code require that evidence of local approval be provided before DNR can issue a permit. Inasmuch as the Town of Juno Beach has approved only a two-unit structure while Petitioners' application seeks approval for a six-unit structure, this requirement has not been satisfied. Therefore, DNR cannot issue a permit for Petitioners' project, as applied for.
