STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
M & T CONSTRUCTION COMPANY, INC. )
)
Petitioner, )
vs. ) CASE NO. 89-192
)
) STATE OF FLORIDA, DEPARTMENT OF ) NATURAL RESOURCES, )
)
Respondent. )
)
RECOMMENDED ORDER
The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on January 30, 1990, in Tallahassee, Florida. Thereafter, the hearing testimony was supplemented by the deposition testimony of Dr. Robert Dean on March 15, 1990 and David Tackney on March 23, 1990, pursuant to the Hearing Officer's Order Reopening Record.
APPEARANCES
FOR PETITIONER: Martha J. Edenfield, Esq..
OERTEL, HOFFMAN, ET AL.
2700 Blair Stone Road Suite C
Tallahassee, FL 32301
FOR RESPONDENT: Lynn M. Finnegan, Esq..
Kenneth J. Plante, Esq.. Department of Natural Resources 3900 Commonwealth Building Douglas Building, Suite 1003 Tallahassee, FL 32399-3000
STATEMENT OF THE ISSUES
Should permit application number WL-237 be approved.
PRELIMINARY STATEMENT
Petitioner, M & T Construction Company, Inc., seeks review of Respondent, Department of Natural Resources' Final Order denying Petitioner's Application No. WL-237 for a permit to construct seaward of the Coastal Construction Control Line ("CCCL") in Walton County, Florida, pursuant to Chapter 161, Florida Statutes, and Chapter 16B-33, Florida Administrative Code.
At the hearing, Petitioner presented the testimony of two (2) witnesses; and the Respondent presented the testimony of three (3) witnesses. The parties also submitted the following joint exhibits:
J1. Permit file WL-69 J2. Permit file WL-160 J3. Permit file WL-237
J4. Cabinet agenda item dated 12/6/88
Petitioner presented the following nine exhibits:
PI. Deed transferring property from Hadera Corporation to M & T.
P2. Letter from Sunshine Bank.
P3. Composite of five contracts of sale for condominium units.
P4. Composite of two letters from' Ocean Reef Realty, Inc.
P5. Letter from Sea Cabins.
P6. Composite of original five contracts for sale. P7. Composite of four photographs marked A,B,C and D. P8. Aerial photograph of project site.
P9. Composite of eight dune profiles.
All of the above exhibits were received into evidence.
The Respondent introduced the following ten exhibits:
RA. Aerial photograph of project site with markings. RB. Composite of four photographs marked 1,2,3 and 4. RC. Composite of two photographs marked 1 and 2.
RD. Diagram of 100-year storm event using dune erosion model.
RE. Diagram of scour effect around single piling. RF. Diagram of group pile scour effect.
RG. Diagram of beach contour recession after Hurricane Eloise due to effects of seawall.
RH. Beach profile, October 1975. RI. Beach profile, May 1981
RJ. Resume of Dr. Robert Dean. /1
All of the above exhibits were admitted into evidence with the exception of Exhibit RA and photograph RC-1.
Both parties submitted proposed findings of fact, which have been read and considered. Appendix A, attached hereto and incorporated by reference herein, states which findings were adopted and which were rejected and why.
FINDINGS OF FACT STIPULATIONS
(Preliminary Background)
Prior to hearing, the parties entered into an agreenent stipulating certain facts as follows:
On August 6, 1982, Respondent issued Permit No. WL- 69 to a Mr. Warren
L. Lisenbee on behalf of Hadera, Inc. for the construction of a three-story, five-unit multi-family dwelling between approximately 163 feet and 263 feet west of Respondent's reference monument R-09 in western Walton County, Florida.
On December 29, 1982, the CCCL (Coastal Construction Control Line) was re-established in Walton County which resulted in a landward relocation of the control line by approximately 82 feet on the subject property.
On June 16, 1983, Hadera, Inc. transferred the property to M & T Construction Company, Inc. by Warranty Deed.
On October 1, 1983, Section 161.053(4), Florida Statutes, as amended, became effective.
Respondent notified Mr. Young, President of M & T Construction Company, Inc., by letter dated July 3, 1984, that Permit No. WL-69 was going to expire on August 6, 1984 and sent Mr. Young a request form for a time extension.
On July 16, 1984, Respondent received a time extension request from Mr. Young.
No construction activity covered under Permit No. WL-69 had commenced as of July 16, 1984.
On July 26, 1984, the Executive Director of Respondent denied the request for time extension.
On August 7, 1984, Mr. Young reapplied for the same construction activity on the same property as was previously approved by the Governor and Cabinet, sitting as the head of Respondent, on August 3, 1982 ((Permit No. WL- 69).
On August 9, 1984, Mr. Young's Application No. WL- 160 was deemed complete by Respondent's staff.
On September 8, 1984, Mr. Young received notice of Respondent's intent to deny the Application No. WL-160, a copy of the draft agenda item and notice of setting the matter on the September 20, 1984 agenda of the Governor and Cabinet and of the Cabinet Aides meeting on September 12, 1984.
On September 20, 1984, Respondent received the Petition for Administrative Hearing, pursuant to Section 120.57(1), Florida Statutes, regarding the denial of Application No. WL-160, the matter was removed from the Governor and Cabinet's agenda pending an administrative hearing. On Novenber 15, 1984, Respondent received a Petition for Administrative Hearing, pursuant to Section 120.57(1), Florida Statutes, regarding the denial of the reguest for a one-year time extension of Permit No. WL-69.
On September 30, 1985, a stipulation and agreement was signed granting a one-year time extension of Permit No. WL-69 and reducing the project to five
(5) units, 80% parallel shore site coverage with a dune management plan to replace vegetation in front of the structure, construct a sand fence, and replace eroded sand in future storms. The two pending administrative hearing cases were dismissed pursuant to the agreement.
On March 5, 1987, all items submitted per the stipulation agreement and the placard and approved plans were issued and the time extension for Permit No. WL-69 began running. Notice was given that no extensions of Permit No. WL-69 would be authorized beyond March 5, 1988.
On December 10, 1987, Mr. Young reguested by telephone a sixty-day time extension of Permit No. WL-69. By letter dated December 30, 1987, the Director of the Division of Beaches and Shores notified Mr. Young that no further time extensions could be authorized beyond March 5, 1988, pursuant to Section 16B-33.017(5), Florida Administrative Code.
On February 8, 1988, Mr. Young telephoned Brett D. Moore, P.E., Engineer Supervisor, Bureau of Coastal Engineering and Regulation, to discuss options available to him at that time.
In February, 1988, Mr. Young had pilings installed, pursuant to Permit No. WL-69.
On March 5, 1988, Permit No. WL-69 expired.
Mr. Young submitted application for Permit No. WL- 237 on August 2, 1988. This permit application was for the construction of a five-unit, three- story townhouse condominium, associated minor structures, and fill.
The Executive Director agendaed the application for consideration before the Governor and Cabinet, as head of the Department of Natural Resources, on December 6, 1988. The recommendation was made by Respondent's staff for approval of the permit application.
On December 30, 1988, a Final Order was entered denying Permit No. WL-
237.
A Petition for Administrative Hearing was timely filed with Respondent
on December 27, 1988. The proposed project
for Permit No. WL-237 is not expected to interfere with lateral public beach access.
The proposed three-story, multi-family dwelling structure in Permit No. WL-237 is designed in accordance with
Subsection 16B-33.007(3) and (4), Florida Administrative Code, to resist adequately the natural forces associated with a 100-year interval storm event.
The proposed minor structures contained in Permit No. WL-237 are designed in accordance with Subsection l6B- 33.007(5), Florida Administrative Code.
The proposed project in and of itself is designed to have no additional adverse impact on adjacent properties.
FINDINGS BASED UPON EVIDENCE
(General Facts)
Petitioner was unable to obtain financing to build the units under the original permit, No. WL-69, and subseguent
permit, No. WL-160, due to poor economic conditions in Walton County. (T-16). With no sales or financing, Petitioner could not build the units. (T-18).
Economic conditions have since improved in Walton County; and Mr. Young, as President of M & T Construction Company, Inc., has five current contracts for sale in effect on these units and construction financing. The 40-foot pilings were legally installed on site to a depth of 30 feet pursuant to WL-69.
The Department of Natural Resources refused to extend WL-69 after installation of the pilings which forced the Petitioner to file a new application, No. WL-237. Application WL-237 is for capping the pilings already installed, constructing a multifamily dwelling on top of the pilings, construction of a retaining wall running east and west against the most northerly of the pilings to retain fill between U.S. Highway 98 and pilings for parking, the construction of dune walkovers, planting of vegetation, and the installation of sand fences as required in a special provision. (T-65).
There are no other structures proposed for underneath the structure; the ground is to be left "as is" around and among the pilings. (T-75). (Pedestrian traffic underneath the structure could be precluded by the design" of the structure). (T-105)
Construction on the beach has a number of impacts. During actual construction, grasses on the site are trampled; however, that is temporary.
The principal direct impacts are the result of installing the pilings, which was legally done. It would not be desirable to remove the pilings at this time.
(T-65, 66, and 234).
The project is located in Miramar Beach, south Walton County, Florida. (T-15). The project site is located two miles east of the west county line for Walton County and approximately 100 feet west of marker R.9 as shown on Petitioner's Exhibit 8 and Respondent's Exhibit A. There is a very high substantial dune approximately 200 feet from the coast. U.S. Highway 98, the hard-surfaced road running east and west along the coast in both exhibits, is located on the top of this primary dune at the proposed site. U.S. Highway 98 runs along the top of this dune for approximately two miles and then the dune and the coast road diverge and the dune `becomes less continuous. (T-61). The CCCL is located approximately along the right-of-way of U.S. Highway 98.
This project cannot be located more landward and
is located waterward of the CCCL because the proposed buildings are within one or two feet of the property line, which is the southern edge of the right-of-way of U.S. Highway 98. (T-77, see Petitioner's Exhibit 8).
The elevation of the road in the vicinity of the
site is well in excess of 20 feet. The elevation of the land behind the road is similar to the elevation of the road. Therefore, the dune line upon which the road is built is the major rise in the topography of the beach area. (T-61).
There is a frontal dune in the area of the proposed site located closer to the water. (T-62). This frontal dune has an elevation of 8-12 feet, is vegetated, and is subject to the effects of storm and weather conditions more frequently that the primary dune. (T-62). This frontal dune offers protection to the primary dune in lesser storms.
The property located to the east of the site of this application is a six-unit residential structure built in 1980 or 1981, almost identical to the proposed structure at issue in this permit. (T-29, 54). The adjacent property on the west is a 100-foot lot owned by Sea Cabins Condominium Association with a gazebo and beach access located on it. (T-29-30). The gazebo is owned by Sea Cabins Condominium Association, which is located north of the site across U.S.
Highway 98 from the gazebo. The use of the land upon which the gazebo is constructed is subject to the restrictions of the condominium association, and nothing can be built on it without a vote of all members of the Sea Cabins Condominium Association. There are approximately 40 units at Sea Cabins Condominium Association. (T-30-31, Petitioner's Exhibits 5 and 7). To the west of the gazebo on the beach south of U.S. Highway 98 is the property of the high-rise condominium located north of U.S. Highway 98 and just west of Sea Cabins Condominium Association. This condominium, together with its elevated pedestrian overpass of U.S. Highway 98, can be seen with the other referenced structures in Respondent's Exhibit D. The construction does not further jeopardize adjacent structures. (T-60). (Stipulation, p. 4-5).
Mr. Young has received the permits necessary for construction from the Florida Department of Transportation and Walton County for the construction involved in WL-237. (T-18).
(Special Conditions for WL-237)
The Respondent wrote and initiated the following special conditions on application WL-237, to which Petitioner agreed. (Joint Exhibit 5, T-21-25, and T-219).
The employment and
maintenance of sand fencing capable of stabilizing and retaining the volume of sediment residing in the dune face at the time of construction. The volume of sediments and location of the sand fencing will be referenced on an approved site plan incorporated as a part of this permit.
The implementation of a
dune-stabilizing vegetation program seaward of the project as designated on the approved site plan subsequent to construction. The vegetation shall be planted throughout the designated area(s) in staggered rows a maximum distance of
18 inches apart, prior to expiration of the permit. The permittee shall irrigate and apply fertilizer as appropriate for the particular species planted, at least until the vegetation is established (usually approximately two years after planting). At least a 75% survival rate of the vegetation shall be insured and replanting shall be conducted until' a 75% overall survival rate is attained, and until any sizable barren portions of the area(s) are covered.
In the event of natural storm induced erosion of sediment
existing within the dune face, below th proposed structure, or within the dune maintenance area, compatible materials shall be deposited and stabilized as referenced above to restore the area to its prestorm condition.
Petitioner also agreed to design and build a dune walkover where the people from the units could walk over the dune to access the beach. (T-25-26). Petitioner also agreed to fill in and extend the frontal dune across the property to one side of the proposed structure. (T-47).
If the material is of good quality and replacement is carried out in a careful manner, the direct impacts of artificial fill are minor. (Deposition of Dr. Dean, March 15, 1990, p. 6)
(Grounds for Denial)
The permit was denied by the Department of Natural Resources because of the direct impacts and cumulative impacts of this proposed construction on the coastal dune system on the site of the proposed construction. (T-60). (Joint Exhibit 4). There are two types of direct impacts; those impacts occurring during normal conditions and those occurring during severe storms. (T- 66)
(Dunes)
For the western 10,000 feet of Walton County, to include the proposed site, the beach configuration is marked by high sand dunes over 20 feet high, approximately 150-200 feet from the water line. This primary dune is protected in many areas by one or more lower frontal dunes. These frontal dunes provide protection to the primary dunes by taking the energy of small storms.
The primary purpose of dunes is to provide a reservoir of sand which can be transported offshore to form offshore sand bars which serve as natural breakwaters to slow and dissipate the energy of the waves. If the sand is not present to be transported offshore, then the erosion of the dune profile is much greater. (T-246). If the storm is large enough and lasts long enough, the shore will reach a state of equilibrium. However, this would probably take a storm of several weeks duration.
During storms, elevated water levels and elevated wave height cause erosion of the normal beach profile. Sand is transported offshore and deposited in a mound called the longshore bar. The longshore bar acts as an offshore bar which breaks the waves, thereby decreasing the wave energy and their erosional process. (T-244). After the storm, the offshore bars formed from the eroded sand are uncovered during low tide and the wind blows the sand back onshore, rebuilding the dunes.
A beach profile is a cross-section of the topography of the coast line, both underwater and above water. The frontal dune is a formation that tends to develop along that part of the coast. (T-279,280) There is a frontal dune on the property at an elevation of approximately 8-12 feet between markers R-8 and R-9, in the vicinity in which the proposed projected is located. (See Petitioner's Composite Exhibit 9 and T-278). The frontal dune is patchy in
areas, but it does exist; and the area is characterized by the tendency to develop frontal dunes, as shown in the Walton County profiles. (T-283, See Petitioner's Composite Exhibit 9). There is a frontal dune ridge
appearing on Walton County profiles R-7 and R-8, near Petitioner's property. (T-279).
The profile of the coast at the proposed site shows that the land rises from the water's edge to the frontal dune which has an elevation of 8-12 feet. It then drops down slightly and abruptly rises into a very high primary dune with an elevation in excess of 22 feet. U.S. Highway 98 is constructed along this primary dune line at the area where the subject site is located.
The frontal dune provides protection for the primary dune for all but the most severe storms. It is a more active portion of the dune system than the primary dune and, in fact, was destroyed during the last hurricane and has re- established itself along most of that area. (See Petitioner's Composite Exhibit 9, Deposition of Tackney, `March 23, 1990, p. 5).
In a 100-year storm, all the experts agreed that
the frontal dune would be washed away and significant erosion would occur to the primary dune. The agency's expert, Dr. Robert Dean, prepared an exhibit (Respondent's Exhibit D) which showed the extent of this erosion based upon his assumptions concerning the impact of pre-storm erosion. While the Petitioner's expert did not agree with the extent of the erosion depicted in, Respondent's Exhibit D, he concurred that a major storm would erode the dune enough to endanger or damage U.S. Highway 98. The Petitioner's expert indicated that this erosion would occur without regard to the proposed project.
Vegetation plays a part in the dune generation process by trapping the windblown sand and as the vegetation grows, stabilizing the dune by the root matrix left in the dune. The beach dune system can be impacted by the loss of vegetation because the absence of vegetation leaves the sand susceptible to being transported further landward. When this occurs, the sand is no longer present as a reservoir which can be transported offshore in a storm. (T-245- 46). This results in greater erosion to the coast.
(Direct Impacts - Normal Conditions)
The agency's expert pointed out two adverse direct impacts which occurred during normal conditions: destruction of vegetation and accelerated windborne transportation of the sand inland. The vegetation is killed by trampling during construction and by cutting off sunlight to the existing vegetation by construction of the building. The construction, according to the agency's expert, raises the velocity of the wind and accelerates the rate and quantity of sand blown inland from the primary dune. (T-135, 245-47, 268).
Revegetation, a special condition of WL-237, would replace vegetation killed by the trampling during construction. However, revegetation would not solve the problem of the low- light conditions created by the building's shadow. However, this problem would be limited to an area under the structure smaller than the footprint of the building because direct light penetrates under the house as the sun moves across the southern sky during the day. There are no structures to prevent sunlight from penetrating to the significant slope under the structure which faces due south. The assessment of the agency's expert also does not take into account vegetation which prefers low- light conditions.
The Petitioner's expert agreed that the construction of the building will have an adverse effect upon some of the vegetation in the area. However, that impact would be lessened by revegetation of the dunes, construction of walkover structures, and sand fencing.
Sand fencing, made of wire with lath between them, will be placed underneath the pilings, as required by the special conditions in the permit.
(T-74-75) (Joint Exhibit 4, special conditions) . The Respondent promotes sand fence placement as sand fences have been observed to be effective in intercepting windblown sand and in assisting in the process of dune formation. (T-211). The larger the frontal dune is, the more protection it offers to the primary dune. (T-188-89; Dean at 4-5).
There is conflict in the testimony whether the sand would be trapped under the house by the sand fences. The agency's expert opined that high wind velocities would scour sand from underneath the structure during normal conditions. The Petitioner's expert testified that sand fences and walkovers would prevent or reduce radically the loss of sand from under the structure preventing the Department's predicted erosion during
normal conditions.
Nothing in the permit application or additional special conditions would prevent traffic or the placement of storage items beneath the structure. (J2-May 6, 1986 letter to Tom Young; J4). No provision is made in the permit for replacement of sand due to erosion losses during normal conditions. (J4; T- 189-90, 285; Dean at 6).
The testimony of Petitioner's expert is deemed the more credible. The erosion of sand from underneath the structure will be halted by the use of sand fences; the damage to dunes and dune vegetation will be minimized by walkovers; and the damage caused by construction will be repaired through revegetation and fill.
The sand will remain under the building, even if the vegetation dies, retained there by the sand fencing and surviving vegetation. The impact of the proposed project on
windblown scour and vegetation during normal conditions is found to be negligible.
(Rainwater Erosion)
In order to meet the county's stormwater requirements, the surface of the parking area is to be graded and runoff directed away from the highway and the side of the building. The runoff is from the highway and the building and was not created solely by the proposed structure. (T-277).
Pictures of conditions at the adjoining structure
were introduced to show the erosion which can be caused by storm water runoff; however, the conditions depicted reflected a improperly designed and constructed drain system which had not been maintained. Storm water runoff problems can be avoided or corrected by handling the problem appropriately in the first instance. (T-277).
(100-year storm impacts)
A 100-year storm; i.e., a storm with conditions which would occur once in a 100-year period, would impact the entire area.
The proposed structure would be built to code standards, and it is stipulated that a structure built to code standards is built to survive the hypothetical 10 0-year storm without serious damage.
The damage done by a storm is dependent upon the flood elevation of tides generated during the storm and the duration of the storm. Fortunately, the factors which make storms severe are the factors which make storms short.
During a 100-year storm, water will not overtop the road on the primary dune. A 100-year storm would cause major erosion to include complete loss of the frontal dune and erosion to the primary dune. In the event of a 100-year storm, there will be damage to the primary dune regardless of the pilings or the proposed structure. (T-210) (T-87). The northerly extent of the erosion is alleged to be increased by the pilings, according to the Respondent's expert. 61. Maximum tidal elevation is predicted to be 11-11.5 feet during a 100-year storm. Water would be up under the structure and would wash around the pilings, which is contemplated in the design of the structure. There will be some localized water-induced scour around the pilings. Scour effect around each piling is localized to this particular site and would not affect the situation on either side of the building. (T- 73,88). However, the deeper the erosion, the more northerly its intrusion. There is a conflict about the factors effecting this scour and the extent of the northerly erosion.
Respondent's Exhibit D purports to graphically present the erosion caused by the proposed project by presenting the erosion caused by a 10 0-year storm using the topography of the site next door. The Respondent's expert based his projection upon three separate conditions impacting inland erosion: conditions prior to the installation of the pilings; conditions with pilings, and conditions with the frangible retaining wall constructed as indicated. The exhibit compares pre-storm profiles with post-storm profiles under the three conditions described without considering the mitigating effect of any of the special conditions.
Respondent's Exhibit D uses an elevation significantly lower than the actual existing profile as a pre-storm profile with piles installed to allow for the wind scour under normal conditions. This red, dotted line was labeled at a conference with counsel for the parties as "Post Construction, Pre-Storm." The Respondent's expert did not explain how he quantified his assumptions about wind scour under normal conditions.
The Respondent's expert also deducted two feet from the "Post Construction, Pre-Storm" line to adjust for water- induced scour, which he had estimated as two feet. This solid red line was labeled "Scour Adjusted Profile." Using these assumptions, the computer model plotted the northward limits of erosion for the pre-construction assumptions and post- construction, pre-storm, and scour-adjusted assumptions. The first of these two dotted lines was labeled "Pre-construction" and colored green, and the second was labeled "Post Construction w/2 ft Scour" and colored red.
The Respondent's expert then computed a third northward erosion limit based upon the acceleration of erosion due to the frangible retaining wall installed on the northern pilings to retain fill used to create a parking area between the structure and U.S. Highway 98. This is the black dotted line labeled "W/Wall."
The experts disagreed about the impact of the frangible retaining wall. The Respondent's expert opined that the wall would accelerate the erosion. (Sea Respondent's Exhibits G and D). The Petitioner's witness opined that the wall would collapse prior to any adverse or accelerated impact on erosion. (T-94,95, and 282).
The base of the frangible wall is about 11 feet above the water line, or about the height of the highest projected flood tide. The wave action along the shore as the water rose would undercut the bottom of the wall in a severe storm and it would disintegrate. Petitioner's evidence is more credible on this issue, and the projected erosion as a result of wash around the wall (black dotted line labeled "W/Wall") is not considered as the most credible evidence.
Having found that the agency's assumptions regarding windblown scour and the acceleration of erosion due to the retaining wall are not well founded, the projections based upon these assumptions are disregarded also. The "Post Construction, Pre-Storm Profile", the "Scour Adjusted Profile", and erosion acceleration model are rejected, together with their resulting northerly erosion profiles, "Post Construction w/2 Ft Scour" and "W/Wall."
When windblown scour is disregarded, the post construction, pre-storm profile would be the same as the pre- construction, pre-storm profile. Adjustment for water-induced scour would result in a line two feet below the pre-storm, pre- construction profile approximately one-third the distance between the green solid line and the red dotted line. The amount of northerly
erosion is apparently proportional to the elevation of the beach; therefore, the northerly limit of' inland erosion attributable to the pilings would be approximately one-quarter the distance from the "pre-construction" limit to the "post construction w/2 ft scour" or slightly more than one foot. based upon scaler measurement of Exhibit D. The granting of the application to construct a building on the existing legally installed piling will have no appreciable impact on the dune
system.
(Impact on Dune Recovery)
When a 100-year storm event occurs, the dune will have difficulty reestablishing because the natural mechanisms for regenerating the dunes are reduced. (T-285). If the dune system is damaged by a storm, the property owners are required to restore the beach to its pre-storm condition. (T-69 and T-73) The special conditions provide that the property owner must buy sand, haul it in and restore the dune system in accordance with the Respondent's requirements. (T-69 and Joint Exhibit 4). 285). Therefore, the long-term affects of this construction would not be significant. (T-70).
(Cumulative Impact)
The Respondent originally recommended approval of Permit No. WL-237. Mr. Kirby Green, Division Director, Division of Beaches and Shores, overturned the staff's recommendation of denial and approved the permit. (T-277). The Governor and Cabinet, sitting as the head of the Department of Natural Resources, denied the permit. (Joint Exhibit 3). The Governor and Cabinet were apparently concerned with the cumulative impact of continued development. (See transcript of Cabinet Meeting). Mr. Green testified that he would still recommend that the permit be issued based upon the equities. (T-230).
"Cumulative impact" is statutory language adopted in the Florida Statutes in 1983. (Stipulation). The rules adopted by the agency provide, "The Department may not authorize any construction of activity whose cumulative impact will threaten the beach or dune system or its recovery
potential following a major storm event. An exception to this policy may be made with regard to those activities undertaken pursuant to Subsections 16B- 33.005(3)(d) and 16B-33.006(5)(c) , Florida Administrative Code."
Section 16B-33.005(3)(d), supra, permits construction of shore protection structures "....which close the gap between the adjoining rigid coastal or shore protection structures to the limit of physical impact to the property from those structures".
Section 16B-33.006(2), supra, addresses permits issued by the Governor and Cabinet "when they clearly justify a permit."
The criteria relating to "cumulative impact", as applied by the agency, preclude the granting of the "first" permit, if, in the opinion of the Department, the Governor and the Cabinet, additional similar permits would threaten the beach or dune system or its recovery potential following a major storm event.
The criteria relating to cumulative impacts have not been quantitatively analyzed and codified by the Respondent. Except as stated above, "cumulative impact" is not further defined by the statutes or rules, and the methodology of. assessing cumulative impact is not set forth.
The Respondent has funded a study to quantify cumulative impact; however, at this point, it-has not published its results, and this project will not be completed in the next 30 months. (T-2311-232)
There is no guidance to applicants about how to address cumulative impacts or what sphere of influence to address. (T-115). Since there are no quantifiable definitions of cumulative impact, the agency's witnesses could not say how large a segment of beach they would include in their assessment. (T- 271). Staff analysis of cumulative impacts was termed an intuitive type of analysis. (T-23). In the absence of defining the segment of beach which should be considered, it is concluded that permit applications are subjectively evaluated. (T-82).
(Beach Segment for Cumulative Analysis)
Respondent's Exhibit A is an aerial photograph of the location of the proposed construction. North is to the top of the picture, and east is to the right of the picture. On this photograph, the proposed site is marked with a "D" and the proposed structure and those previously constructed to the east of the proposed structure are shown in red. The gazebo is shown immediately to the west of the proposed structure. The high-rise condominium is not shown but would be located generally to the west of the Sea Cabins Condominiums north of
U.S. Highway 98, which are shown. The high-rise condominium has a pedestrian overpass over U.S. Highway 98 which services the condominium's beach immediately west of the gazebo shown in the picture south of U.S. Highway 98.
The beach, waterline, and U.S. Highway 98 in the vicinity of the proposed construction is clearly shown. The depth of the property between U.S. Highway 98 and the water narrows to the west of the proposed project, gazebo, and condominium beach to its narrowest point due mouth of the divided paved road
which intersects U.S. Highway 98 from a northerly direction. From this point, the property between the road and water begins to widen; and a single-family residence is shown slightly to the west and south of the intersection referenced above. A picture of this residence was introduced as Respondent's Exhibit B4.
The beach shown on this aerial photograph is the relevant beach segment because it shows the narrowing and widening of the beach in the area of concern. The agency's witness indicated that the depth of the beach area is the critical determinant.
The existing single-family residence is the same distance west of the narrowest point that the proposed project is to the east. The gazebo and condominium beaches lie between the proposed project and the narrowest point. Development of the property between the proposed project and the narrowest point is very highly unlikely because this area is the bathing beach for two multi- unit condominium projects.
All of the property east of the narrowest point, except the proposed site, has already been developed as multi- family dwelling sites or multi-unit condominium bathing beaches. To the west of the narrowest point, a single-family residence has already been constructed. (T-83).
(Parallel Coverage)
The parties settled their prior controversy by
entering in to a Stipulation and Agreement whereby the Respondent agreed to a one-year extension of the permit If Petitioner agreed to reduce from 90% to 80% shore parallel site coverage, maintain a dune management plan, construct a sand fence, and replace eroded sand in future storms. (Joint Stipulation at 3).
Analysis of shore parallel coverage for sites by the agency is an attempt to limit widths of structures and allows dune preservation between structures. (T-142).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding, by the authority of subsection 120.57(1), Florida Statutes.
The agency regulates construction seaward of the CCCL, pursuant to Chapter 161, Florida Statutes, and Rule 16B-33.005, Florida Administrative Code. The rules adopted by the agency state, "The Department may not authorize any construction of activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event. An exception to this policy may be made with regard to those activities undertaken pursuant to Subsections 16B-33.005(3)(d) and 16B-33.006(5)(c), Florida Administrative Code."
Section 16B-33.005(3)(d), supra, permits construction of shore protection structures "... .which close the gap between the adjoining rigid coastal or shore protection structures. . ., and Section 16B-33.006(2), supra, addresses permits issued by the Governor and Cabinet "when they clearly justify a permit."
Five criteria are considered by the agency in evaluating permits to build seaward of the CCCL: (1) the risk of adversely affecting beach stability and the beach dune system; (2) the risk to proposed upland structures; (3) the
risk to adjacent structures; (4) the risk of affecting beach access; and (5) the risk associated with the cumulative impact of siting similar structures.
It is agreed by the parties that the proposed project does not pose a risk to upland structures, adjacent structures or beach access. The reasons for the staff's recommendation to deny the application were the potential direct adverse impacts to the beach dune system and the potential cumulative impact on the beach dune system if additional structures of the same type were built along the beach. (T-60, 129-130). The transcript of the Cabinet meeting reflects that the principal concern of the Governor and Cabinet was the project's potential cumulative effect.
A review of the evidence shows that the direct impacts from the proposed project are negligible. The staff projections of both wind and water erosion attributable to the construction are grossly overstated, even when one includes the effects of the pilings on the project and excludes the effects of mitigation resulting from the required special conditions.
To the extent that direct impacts may arise, they can be eliminated or mitigated to a point of insignificance by imposition of the special conditions. To those special conditions which have already been imposed, it is suggested that requiring some barrier to pedestrian traffic under the house and
railings on the walkovers would prevent displacement of sand. Further, the condition to replace sand should be extended to sand removed from the primary dune by wind, storm water or children with sand pails. This would completely address and nullify any direct impacts of the proposed project. The only remaining grounds for denying the application for the project are its cumulative effects.
"Cumulative effects" is statutory language adopted in the Florida Statutes in 1983. (Stipulation). "Cumulative impact", as applied by the agency, precludes the granting of the "first" permit, if, in the opinion of the Department, Governor and Cabinet, additional similar permits would threaten the beach or dune system or its recovery potential following a major storm event.
The criteria relating to cumulative impacts have not been quantitatively analyzed and codified by the Respondent since the law was amended in 1983. Although the Respondent s currently going through the process of trying to quantify cumulative impacts through a study, which has not been published, conducted by the agency's former director and expert witness in this case, this project will not be completed in the next 30 months. In the meantime, there is no guidance to staff or applicants about how to address cumulative impacts or what sphere of influence to address. The Respondent approaches cumulative impact on a case-by-case basis, considering the general geologic and coastal engineering features for each particular site. Staff analysis of cumulative impacts is "intuitive," and clearly subjective. The agency asserts that this practice is not an abuse of discretion because cumulative impacts are assessed by looking at the direct impacts of a particular structure and projecting these impacts over a segment of the coast.
Disregarding that the facts reveal the direct impacts are negligible, the agency has not explained by rule its methodology for arriving at the length of the beach segment analyzed or how it is used in considering cumulative effects. At hearing, the agency's expert indicated that he would look at several miles of coastline; but he was unable to explain what criteria he would apply to identify the length of the segment. After much cross-examination, the
expert indicated that his criteria would be the depth of the land. According to the expert's testimony, he considered several miles of coastline in assessing cumulative impacts.
It is clear from a review of the aerial photographs that the depth of the land between the water and dunes varies. East of the proposed site, U.S. Highway 98 and the dune line move away from the water. West of the proposed site, the land between the water and the dune (and U.S. Highway 98) reaches its narrowest point. The segment to be studied using the agency's "methodology" would be that area depicted which has the same approximate depth between the dune and the water. As indicated in the findings, when this segment is analyzed, it reveals there is already significant construction in place on those parcels which have a depth equal to or greater than that of the subject parcel; and the lots immediately to the east of the subject parcel have already been developed as bathing beaches for multi- unit condominiums. In sum, the proposed project is the last of its type in the relevant segment, not the first, and there are no cumulative impacts.
It was also suggested that the application should be
disapproved because it has too much "parallel coverage" at 80%. There is no statutory authority for parallel coverage and although it may be a workable quantitative approach, it has not been adopted by rule. Insufficient evidence was introduced to
substantiate the application of a non-rule policy which the agency failed to appropriately justify.
The applicant has presented evidence which clearly justifies granting his application. The agency has presented no evidence which would warrant denying the application. The criteria of Section 161.053, Florida Statutes, and Rule 16B.33.005, Florida Administrative Code, have been met by the applicant.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,
RECOMMENDED that the application be approved with the added special conditions.
DONE AND ENTERED this 6 day of June, 1990, in
Tallahassee, Leon County, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 6 day of June, 1990.
ENDNOTE
1/ Dr. Robert Dean has no known relationship to the assigned Hearing Officer.
APPENDIX TO RECOMMENDED ORDER CASE NO. 89-192
Petitioner's Proposed Findings of Fact
Adopted.
Adopted.
Irrelevant.
Irrelevant, as to first sentence. Adopted, as to remainder of paragraph.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted, in part; rejected, in part, as contrary to the most credible testimony or evidence.
Irrelevant.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Irrelevant.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Conclusion of Law.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Rejected. There is no rule which sets forth this
standard and the agency failed to substantiate the standard by evidence adduced at hearing
Adopted.
Irrelevant.
Adopted in part and rejected in part, as contrary to the most credible evidence.
Adopted.
Adopted.
The first sentence is adopted; the remainder of the paragraph is irrelevant.
Irrelevant.
Respondent's Proposed Findings of Fact
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted in part and rejected in part, as contrary to the most credible evidence.
Adopted in part and rejected in part, as contrary to the most credible evidence.
Adopted.
Irrelevant.
Irrelevant.
Irrelevant.
Conclusion of Law.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Rejected, as contrary to the most credible testimony or evidence.
Rejected, as contrary to the most credible testimony or evidence.
Adopted.
Adopted.
Rejected, as contrary to the most credible
testimony or evidence (as to first sentence) ; adopted (as to last sentence)
Rejected, as contrary to the most credible testimony or evidence.
Rejected, as contrary to the most credible testimony or evidence.
Rejected, as contrary to the most credible testimony or evidence.
Adopted.
Rejected, as contrary to the most credible testimony or evidence.
Adopted.
Adopted.
Adopted.
Adopted.
Rejected, as contrary to the moot credible testimony or evidence.
Rejected, as contrary to the most credible testimony or evidence.
Adopted, as to first sentence; rejected, as
contrary to the most credible testimony or evidence (as to last sentence).
Rejected, because although the agency's expert
could identify the general criteria analyzed, he could not quantify the analytical method.
Adopted.
Adopted.
Irrelevant.
Adopted.
Rejected, as contrary to the most credible testimony or evidence.
Adopted.
Adopted.
Adopted.
Adopted.
Adopted.
Rejected, as contrary to the most credible testimony or evidence.
Rejected, as contrary to the most credible testimony or evidence.
The first sentence is adopted; the second sentence is irrelevant.
Rejected, as contrary to the most credible testimony or evidence.
Rejected, as contrary to the most credible testimony or evidence.
COPIES FURNISHED:
Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard
Tallahassee, FL 32399-3000
Kenneth J. Plante, Esq. General Counsel
Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, FL 32399-3000
Lynn M. Finnegan, Esq. Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, FL 32399-3000
Martha J. Edenfield, Esq. OERTEL, HOFFMAN, ET AL.
2700 Blair Stone Road, Suite C Tallahassee, FL 32301
| Issue Date | Proceedings |
|---|---|
| Jun. 06, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 06, 1990 | Recommended Order | Beach construction approved. Facts reveal negligible direct impacts and cummulative impact was nil because this was last developable lot. |
