STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ST. JOSEPH LAND AND DEVELOPMENT ) COMPANY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-4223RX
) DEPARTMENT OF NATURAL RESOURCES, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on September 24-26, 1990, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Frederick H. Kent, Jr., Esq.
Kent, Hayden, Facciolo & McMorrow 700 Southeast Bank Building
1200 Gulf Life Drive Jacksonville, Florida 32207
For Respondent: Dana M. Wiehle, Esq.
Assistant General Counsel Department of Natural Resources 3900 Commonwealth Drive, Room 1003
Tallahassee, Florida 32399 STATEMENT OF THE ISSUE
Whether Rule 16B-26.016, Florida Administrative Code, which establishes a coastal construction control line over certain property owned by St. Joseph Land and Development Company, is an invalid exercise of delegated legislative authority.
More specifically, the Petitioner asserts that the establishment by rule of the coastal construction control line over the relevant portion of it's Gulf County property enlarges, modifies, or contravenes the specific provisions of law which provide the Department with the authority to establish the line over sand beaches "fronting" specified water bodies. The Petitioner further asserts that the establishment of the line by rule is arbitrary or capricious in that the line is based upon inaccurate studies which fail to account for actual storm data.
PRELIMINARY STATEMENT
By Petition filed August 2, 1989, St. Joseph Land and Development Company (hereinafter Petitioner) challenged the establishment by the Department of Natural Resources (hereinafter Department) of a coastal construction control line (CCCL) over portions of Petitioner's property lying in Gulf County. The case was assigned to the Hearing Officer on August 8, 1989. Hearing was scheduled for September 7, 1989. Upon Petitioner's motion and without objection, the hearing was continued to November 20-22, 1989. Due to the serious illness of a necessary witness, and without objection, the hearing was twice again continued, and then held on September 24-26, 1990.
At the hearing, the Petitioner presented the testimony of Robert E. Nedley, Lawrence Woodman, Tsao Yi Chiu, John F. Michel, and Jeffrey L. Furr.
Petitioner's exhibits numbered 1-2 and 4-20 were admitted into evidence. 1/ The Department presented the testimony of Kirby B. Green, III, Tsao Yi Chiu, Shang Yih Robert Wang, and Albert Case Hine, and had exhibits numbered 1-2 and 4-5 admitted into evidence.
The transcript was filed on October 19, 1990. Proposed final orders were due to be filed, by agreement between the parties, on November 30, 1990. The parties subsequently requested and were granted additional time for filing proposed orders. The Department filed a proposed order on December 7, 1990.
The Petitioner's proposed order was filed on December 11, 1990. The proposed orders were carefully considered in the preparation of this Final Order. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Final Order.
FINDINGS OF FACT
Petitioner is the owner of property located in Gulf County. In relevant part, the Petitioner's property lies on the mainland between St. Joe Beach to the north and Palm Point to the south, generally east of St. Joseph Bay. The bay is created by a narrow peninsula, St. Joseph Spit, which runs northward for approximately 15 miles from Cape San Blas through the Gulf of Mexico. U.S. Highway 98 runs north-south along the land and bisects the Petitioner's property.
Section 161.053(1)(a), Florida Statutes, authorizes the Department to "establish coastal construction control lines on a county basis along the sand beaches of the state fronting on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida." Such lines shall be established so as to define that portion of the beach-dune system which is subject to severe fluctuations based upon a 100-year storm surge, storm waves, or other predictable weather conditions. There are circumstances under which the Department may set the CCCL further landward than the 100-year storm impact zone.
A 100-year storm event is that which statistically may be expected to occur once every 100 years. A 100-year storm surge is the water level associated with the 100-year storm event. In actuality, a 100-year storm may occur more or less frequently than every 100 years.
The CCCL is established to protect the state's beach and dune systems. Certain activities seaward of the CCCL, from construction, excavation or removal of material, to driving a vehicle over or across a sand dune or the vegetation growing seaward of the dune system, require a permit from the Department. The
Department identifies the location of the control line by placing concrete monuments, called R-Monuments, at 1,000 foot intervals along the CCCL.
In 1981, the Department established a Gulf County CCCL which crossed a portion of Petitioner's property. 2/ In 1986, the Department reset the CCCL over portions of the Petitioner's land east of U.S. Highway 98. Currently, the Petitioner's property runs along both sides of U.S. Highway 98 from a few feet southeast of the Department's R-Monument #15 to R-Monument #30.
A small outparcel, not at issue in this proceeding, lies within the Petitioner's property which is subject to the challenged CCCL. No "metes and bounds" legal descriptions of the properties were offered which would permit a more accurate description of the lands involved.
The property is utilized for pine forestry. Petitioner intends to use the eastern side of U.S. Highway 98 as a staging area for the timber harvest. The Petitioner would unload equipment at the roadside, take the equipment into the timberland, remove the harvested timber to the roadside, and load the trucks at the side of the highway.
Petitioner asserts that the existence of the CCCL east of the highway and west of the timber prevents normal forestry operations and the harvest of the pine. However, Petitioner has not contacted the Department to determine whether permits are required to various activities, or, if permits would be required, whether the Department would issue the permits. There is no evidence that the existence of the CCCL completely prohibits the Petitioner from conducting forestry operations.
There is testimony that timber could be taken to staging areas within the forest and loaded onto the trucks at sites to the east of the CCCL. There are primitive sand roads in the forest, but such roads are apparently not sufficient to support harvesting equipment and trucks without improvement. However, this would increase the cost of harvesting the timber. Utilizing the eastern part of U.S. Highway 98 would permit the harvest to be accomplished without the need to improve the existing roads or construct new roads into the timber forest, and would provide enhanced access to the Petitioner's timber mill located in Port. St. Joe.
The Petitioner asserts that the Department's establishment of the CCCL over Petitioner's property east of St. Joe Bay enlarges, modifies, or contravenes the specific provision of law which authorizes the Department to establish the line over sand beaches "fronting" the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida, because the property in question does not front on one of the specified water bodies, but instead fronts onto St. Joe Bay. The statute does not specifically define "fronting".
For the purposes of setting a CCCL, the Department asserts, and the greater weight of the evidence establishes, that sand beaches "front" on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida, if the beaches can be directly affected or influenced by a 100-year storm event in one of those water bodies. The Department's definition of "fronting" has been consistent throughout the period during which the agency has been responsible for setting control lines.
In determining jurisdiction to establish the Gulf County CCCL, the Department considered the characteristics of the beach areas. In the area of Petitioner's land between R-Monument #15 and R-Monument #30, the sand beach is
characterized as a mainland open marine beach system. Generally, high-energy waves carry and deposit the sand along the shoreline. As the sand dries, the wind carries the sand towards and into shore vegetation, eventually forming a dune system. There is a beach face at the water's edge, a berm area of approximately one and one-half meters, and a sand dune system which extends eastward of U.S. Highway 98. Although there are some dune areas which have been cut through by trails or roads, the dune system is otherwise very well developed. A sand "bar" is offshore from the beach. The area's sand is characterized as a medium grain with carbonate and shell fragments thoughout.
The evidence establishes that the sand beach area results from, and is affected by, the day-to-day activity of the Gulf of Mexico. The waves carrying the sand into the area originate in the Gulf of Mexico. The beach area between R-Monument #15 and R-Monument #30 is actually accreting at present. The Gulf waves remove sand from beach areas to the north of the Petitioner's land and deposit the sand as the wave energy begins to dissipate upon passing east of the northern tip of St. Joe Spit. It is reasonable to expect that beach areas which are affected by daily fluctuations of wind and water from the Gulf of Mexico would likely be affected by a 100-year storm event in the same waters.
The land south of R-Monument #30 and east of St. Joe Bay is characterized as a low-energy coastal marsh system. There is no dune system. There is no visible offshore sand "bar". The shore is composed of fine-grain sediment. The basic difference between the area north of R-Monument #30 and the area south of R-Monument #30 is that the southern coastline is not affected by the Gulf's waves, but is instead influenced by the smaller waves generated by wind action within the waters of St. Joe Bay.
In determining the actual the location of the CCCL, the Department must project the portion of the beach dune system which is subject to severe fluctuation based upon a 100-year storm surge, storm waves, or other predictable weather conditions. The Department relies upon computer generated projections of model 100-year storm event hurricanes to determine the location of control lines.
A hurricane is a complicated and chaotic weather system. The Department has developed a methodology which defines five basic parameters of a hurricane. These factors identify a storm's size, strength, speed, direction, and location of landfall. These parameters, corroborated with topographical data, determine the extent of the shoreline which is subject to severe fluctuation based upon a 100-year storm event and related storm water levels.
A hurricane's size is defined by determining the distance from the storm center to the band of highest wind speed, called "radius to maximum wind" or "R-max". A storm's strength is defined by calculating the difference between normal atmospheric pressure (which exists outside the hurricane) and the low- pressure center of the storm, called "central pressure deficit". Speed is simply identified as the movement of the storm system in a specific direction. The direction of a storm is identified as the track or angle, referenced from north, along which the storm travels. The location of landfall is the site where the storm center crosses the shoreline from water to land.
In generating data for projected storms, the Department first gathers historical data related to the five storm parameters for storms which have previously affected the area. Once the data is collected, a statistical analysis is completed which establishes a range of probabilities for the various parameters. The parameters and the statistical analysis are utilized to predict
the characteristics of future 100-year storm events, and the anticipated related storm tides. The parameters of 19 hurricanes were utilized in the Gulf County study.
Two computer models are utilized in the analysis. The first, more complex that the second model, incorporates two dimensional data related to water depths from and along the shore line to deep water, as well as additional topographical data. The accuracy of the two dimensional model is tested by comparing the computer's storm tide projection generated from the parameters of a past hurricane with the same storm's actual tides. According to the comparison, the two dimensional Gulf County model was accurate.
After the two dimensional model is created and tested, a faster and less costly one dimensional model is constructed. Prior to operating the one dimensional model, it is corroborated with the two dimensional model to insure accuracy, by generating eleven hypothetical hurricanes on both models and the comparing storm tide predictions. The one dimensional model is thereafter utilized to project the parameters of future storm events and related storm tides. According to the comparison, the one dimensional Gulf County model was accurate.
The one dimensional model utilizes water depths along six specific transect lines, identified as profiles 0 through 5, which project in one direction into the water. The model generates a total of 360 hurricanes over a 2,000 year period, ranked as to their probability of occurrence. From the ranking, the 100-year storm event is determined. The process is repeated five times generating five different 100-year storms. The five storms are compiled to project an average predicted storm tide height, which is then utilized in an erosion model. The erosion model, a computer generated topographical projection, predicts the amount of sand that will be removed from the shore during the projected 100-year storm event. The data is thereafter used to determine the location of the CCCL.
In the Gulf County study, the erosion model was modified based upon the expectation that the existence of St. Joe Spit would reduce the storm surge heights along portions of mainland shoreline east of the bay. Accordingly, from the R-Monument #23 to R-Monument #31, the erosion model was reduced by 20 percent, resulting in a CCCL further seaward than would have otherwise been indicated.
The Petitioner asserts that the Department's projections are not reliable and are inaccurate. In support of the assertion, Petitioner suggests that the damage resulting from Hurricane Kate, a 1985 storm which affected Gulf County and surrounding areas, was substantially less than that which the Department's projections would indicate should have been seen. However, although there is evidence that Hurricane Kate was a 100-year storm event at some time during the storm's existence, there is insufficient evidence to establish that Kate was a 100-year storm event at the time is crossed the Petitioner's property. The greater weight of the evidence establishes that the Department's projections are reliable and accurate predictions of the area which could be subject to severe fluctuations based upon a 100-year storm surge, storm waves, or other predictable weather conditions.
According to the weight of the evidence, the Gulf County coastal construction control line established by the Department of Natural Resources reflects a reasonable determination of the portion of the Gulf County beach-dune system which is subject to severe fluctuations based upon a 100 year storm surge, storm waves, or other predictable weather conditions.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.56, Florida Statutes.
The Department of Natural Resources has been directed by the Florida Legislature to establish coastal construction control lines (CCCL) along the sand beaches of the state fronting on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida. The lines are established so as to define that portion of the beach-dune system which is subject to severe fluctuations based upon a
100 year storm surge, storm waves, or other predictable weather conditions. 3/ Section 161.053(1)(a), Florida Statutes.
The Department establishes a CCCL after determining through a comprehensive engineering study and topographic survey that a CCCL is necessary for the protection of upland properties and the control of beach erosion. The Department must conduct a public hearing, and consider the information gathered at the hearing in establishing the CCCL. The Department must further consider ground elevations in relation to historical storm and hurricane tides, predicted maximum wave uprush, beach and offshore ground contours, the vegetation line, erosion trends, the dune or bluff line (if any exists), and existing upland development. Additionally, the Governor and Cabinet are required to conduct a public hearing on the establishment of the CCCL which meets the requirements of Section 120.54(3), Florida Statutes. The rule establishing the CCCL is adopted by the Governor and Cabinet and is filed with the Secretary of State.
Subsequent to establishing the line, the Department must record the line in the public records of each county or municipality affected. Section 161.053(2), Florida Statutes.
Petitioner St. Joseph Land and Development Company asserts that the adoption by rule of a Gulf County coastal construction control line across portions of the Petitioner's property is an invalid exercise of delegated legislative authority. As stated at section 120.52(8), Florida Statutes, a proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:
The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or
The rule is arbitrary or capricious.
The burden of proof falls to the Petitioner to establish that the rule is an invalid exercise of delegated legislative authority. In this case, the burden has not been met.
There is no evidence that the Department failed to follow rulemaking procedures as set forth at section 120.54, Florida Statutes, or that the adoption of the CCCL exceeds the agency's rulemaking authority.
The Petitioner asserts that the establishment of a coastal construction control line across it's lands east of St. Joe Bay enlarges, modifies, or contravenes Section 161.053, Florida Statutes, which requires the Department to establish control lines along the sand beaches "fronting" on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida. The Petitioner states that it's lands "front" on St. Joe Bay, and suggests that the agency has no authority to establish a CCCL over the land at issue. The statute does not define "fronting".
Coastal construction control lines are established so as to define that portion of the beach-dune system which is subject to severe fluctuations based upon a 100 year storm surge, storm waves, or other predictable weather conditions. The purpose of a CCCL is to protect the sand beaches and coastal dune systems of the state. In relevant part, the Department asserts that a sand beach "fronts" on the Gulf of Mexico, if the beach can be directly affected or influenced by a 100-year storm event in the Gulf. Given the purpose of the CCCL program, the Department's interpretation of "fronting" is reasonable.
In this case, the sand beach between the R-Monument #15 and the R- Monument #30 are affected by the daily wave and water activity of the Gulf. Gulf waves carry sand into the area from beaches north of the Petitioner's land and deposit the sand as the wave energy dissipates. It is reasonable to assume that beach areas affected on a daily basis by Gulf wind and water would be affected by a 100-year storm event from the same water. For the purposes of establishing a CCCL, the sand beach between the R-Monument #15 and the R- Monument #30 "fronts" on the Gulf of Mexico.
There is no evidence to suggest that the CCCL as established by rule was impermissible due to vagueness, the failure to establish adequate standards for agency decision or to investiture of unbridled discretion in the agency.
The Petitioner asserts that the establishment of the line by rule is arbitrary or capricious in that the line is based upon inaccurate studies which fail to account for actual storm data. The Petitioner further asserts that the Department failed to conduct a comprehensive engineering study and topographic survey which established the necessity for a CCCL across Petitioner's property.
A capricious action is one taken without thought or reason or which is taken irrationally. An arbitrary decision is one that is not supported by facts or logic or that is despotic. In this case, the CCCL is located based upon a complex computer model which projects expected 100-year storm tides, and utilizes extensive weather and topographic data to predict the effect of such tides. Although the witnesses who testified as to the preparation of the Gulf County CCCL study are not professional engineers, the evidence is insufficient to establish that the data upon which the witnesses relied in performing the study was not based upon appropriate engineering and topographic information.
The Petitioner suggests that the imposition of a CCCL over the relevant lands is inappropriate because the sand beach area is accreting, not eroding. However, according to Section 161.053, such lines are to be established where necessary for the protection of upland properties as well as for the control of beach erosion.
The Petitioner asserts that Hurricane Kate, a 100-year storm event, made landfall near Petitioner's property but did not cause the shore fluctuations projected by the Department's studies. However, the minimal damage caused to Petitioner's property by Kate does not establish that the Department's projections as to the effect of a 100-year storm on Petitioner's lands are unreasonable. Although there is evidence that Hurricane Kate was a 100-year storm at some point prior to the storm's landfall near Petitioner's property, there is no evidence to establish that Kate continued to be a 100-year storm event at the time of landfall. The evidence does not establish that the Department's projections are invalid or unreasonable. It certainly does not establish that the CCCL was determined without thought or reason, or unsupported by facts or logic.
Section 161.052, Florida Statutes, adopted by the 1970 Legislature, 4/ prohibits unauthorized excavation or construction "within 50 feet of the line of mean high water at any riparian coastal location fronting the Gulf of Mexico or Atlantic coast shoreline of the state, exclusive of bays, inlets, rivers, bayous, creeks, passes, and the like." (emphasis supplied). The 1971 Legislature adopted Section 161.053, Florida Statutes, 5/ authorizing the establishment of "coastal construction setback lines along the sand beaches of the State of Florida fronting on the Atlantic Ocean and the Gulf of Mexico".
Contrary to the language of Section 161.052, in adopting Section
161.053 the Legislature did not specifically exclude "bays, inlets, rivers, bayous, creeks, passes, and the like" from areas "fronting" on the Atlantic Ocean or Gulf of Mexico for which coastal construction setback lines were to be set. One must assume that, had the Legislature intended to exempt property located on bays from inclusion in an area protected by a CCCL, the Legislature would have specifically done so, as it has done previously. Although Section
161.053 has been amended subsequently, none of the amendments suggest that the Legislature intended to exempt sand beach and dune systems which lie adjacent to bays from beach-dune systems for which coastal construction control lines are to be established. The statute authorizes the Department to "establish coastal construction control lines on a county basis along the sand beaches of the state fronting on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida. Such lines shall be established so as to define that portion of the beach-dune system which is subject to severe fluctuations based upon a 100-year storm surge, storm waves, or other predictable weather conditions."
The Department is authorized to set control lines so as to define the beach-dune system subject to severe fluctuations based upon a 100-year storm surge, storm waves, or other predictable weather conditions. In this case, the evidence establishes that Petitioner's Gulf County lands between R-Monument #15 and R-Monument #30 front on the Gulf of Mexico based upon the effect of Gulf wind and wave action on the property, and that such lands are subject to severe fluctuations based upon a 100-year storm surge, storm waves, or other predictable weather conditions.
FINAL ORDER
Based upon the foregoing findings of fact and conclusions of law, it is determined that the portion of Rule 16B-26.016 Florida Administrative Code, which establishes a Gulf County coastal construction control line is not an invalid exercise of delegated legislative authority, and the Petition is DISMISSED.
DONE and ENTERED this 17th day of April, 1991, in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
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 17th day of April, 1991.
ENDNOTES
1/ Petitioner's Exhibit #12 consisted of a map and an acetate overlay. The overlay depicted a hurricane, and was offered to assist in understanding that hurricane winds in the area would circulate in a counterclockwise direction around the center of the storm. The size and intensity of the storm, as reflected on the overlay, was based upon the maximum conditions of Kate, a 1985 hurricane, while the storm was considerably south of the area depicted on the map and of the Petitioner's property . The overlay suggested, without evidence, that such conditions continued to exist at the time Kate made landfall. The Hearing Officer took official notice that such hurricane winds in the vicinity of Petitioner's property would rotate counterclockwise around the storm center. The overlay was deemed to be unnecessary and was excluded.
2/ The line is adopted by administrative rule which delineates the location of the line through a metes and bounds description.
3/ There are instances, immaterial to this case, in which DNR may establish the CCCL further inland that the 100 year storm surge would support.
4/ Chapter 70-231, Laws of Florida 5/ Chapter 71-280, Laws of Florida
APPENDIX TO FINAL ORDER
The following constitute rulings on proposed findings of facts submitted by the parties.
Petitioner
The Petitioner's proposed order consists of unnumbered paragraphs including a mixture of findings of fact and legal argument. For purposes of ruling on the proposed findings of fact, the unnumbered paragraphs are referenced as if numbered, beginning with the paragraph following the "Gulf County" heading.
Such proposed findings of fact are accepted as modified in the Final Order except as follows:
4. Rejected as to Department's authority to set CCCL on Petitioner's lands east of St. Joe Bay. For purposes of setting CCCL, the Petitioner's land between the Department's R-Monument #15 and R-Monument #30 front the Gulf of Mexico.
5-6. Rejected, legal argument.
8-12. Rejected. Territorial water boundaries are immaterial to determining whether the lands "front" on the Gulf of Mexico for purposes of establishing a coastal construction control line designed to protect the beach and dune system. Further rejected as legal argument, not appropriate Findings of Fact.
13-14. Rejected, subordinate.
15-16. Rejected, legal argument.
17. Rejected, irrelevant.
18-19. Rejected, legal argument. Respondent
The Respondent's proposed findings of fact are accepted as modified in the Final Order.
COPIES FURNISHED:
Fred H. Kent, Esq.
Kent, Hayden, Facciolo and McMorrow 700 Southeast Bank Building
1200 Gulf Life Drive Jacksonville, Florida 32207
Dana M. Wiehle, Esq. Assistant General Counsel
Department of Natural Resources
3900 Commonwealth Boulevard, Room 1003
Tallahassee, Florida 32399
Carroll Webb, Executive Director Administrative Procedure Committee
120 Holland Building Tallahassee, FL 32399-1300
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
ST. JOSEPH LAND AND,
DEVELOPMENT COMPANY NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED.
vs. CASE NO. 91-1400
DOAH CASE NO. 89-4223RX
FLORIDA DEPARTMENT OF NATURAL RESOURCES
Appellee.
/ Opinion filed March 17, 1992.
Appeal from an order of the Division of Administrative Hearings.
Fred H. Kent, Jr., of Kent, Hayden, Facciolo & McMorrow, Jacksonville, for appellant.
Dana M. Wiehle, Assistant General Counsel, Tallahassee, for appellee. BARFIELD, J.
Appellant challenges the final order of a hearing officer from the Department of Administrative Hearings (DOAH) which ruled that the imposition of
a Coastal Construction Control Line (CCCL) on appellant's land was valid. At issue are the jurisdiction of the Department of Natural Resources (DNR) to impose the CCCL on the subject property, and the methodology used to determine the location of the CCCL. We affirm on both issues.
Appellants property lies along the coast of Gulf County, between St. Joe Beach and Palm Point, just across from St. Joseph Point. The CCCL line was originally established in 1974, about halfway between the shore and U.S. Highway
98. In 1985, pursuant to a mandate from the legislature, a new study was made and the CCCL was moved east of the highway. Court action followed, documented in St. Joe Paper Co. v. Department of Natural Resources, 507 So.2d 717 (Fla. 1st DCA 1987), and St. Joe Paper Co. v. Department of Natural Resources, 536 So.2d 1119 (Fla. 1st DCA 1988).
In August 1989, appellant filed a petition with DOAH, seeking a determination that Rule 16B-26.016, Florida Administrative Code, which established the CCCL across its lands, constitutes an invalid exercise of delegated legislative authority, on the grounds that DNR does not have jurisdiction over the lands at issue because they "front on" St. Joseph's Bay, not the Gulf of Mexico, and that the establishment of the CCCL was procedurally improper. At the hearing in September 1990, testimony was taken from representatives of St. Joe Paper Company and DNR; Dr. Chiu (a Ph.D. coastal engineer and the director of the FSU Beaches and Shores Research Center, who wrote the "Gulf County CCCL Study"); Dr. Wang (an associate engineer at the Center, who supervised the computer work); Dr. Hine (a University of South Florida research coastal geologist); and John Michel (appellant's expert, a registered engineer). Both parties filed proposed final orders.
The hearing officer found, inter alia (footnotes omitted):
The Department of Natural Resources has been directed by the Florida Legislature to establish coastal construction control lines (CCCL) along the sand beaches of the state fronting on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida. The lines are established so as to define that portion of the beach-dune system which is subject to severe fluctuations based upon a 100 year storm surge, storm waves, or other predictable weather. Section 161.053(1)(a), Florida Statutes.
The Department establishes a CCCL after determining through a comprehensive engineering study and topographic survey that a CCCL is necessary for the protection of upland properties and the control of beach erosion....
... The Petitioner states that it's (sic) lands "front" on St. Joe Bay, and suggests that the agency has no authority to establish a CCCL over the land at issue. The statute does not define "fronting."
Coastal construction control lines are established so as to define that portion of the beach-dune system which is subject to severe fluctuation based upon a 100 year storm surge, storm waves, or other predictable weather conditions. The purpose of a CCCL is to
protect the sand beaches and coastal dune systems of the state. In relevant part, the Department asserts that a sand beach "fronts" on the Gulf of Mexico, if the beach can be directly affected or influenced by a 100-year storm event in the Gulf. Given the purpose of the CCCL program, the Department's interpretation of "fronting" is reasonable.
In this case, the sand beach between the R- Monument #15 and the R-Monument #30 are (sic) affected by the daily wave and water activity of the Gulf. Gulf waves carry sand into the area from beaches north of the Petitioner's land and deposit the sand as the wave energy dissipates. It is reasonable to assume that beach areas affected on a daily basis by Gulf wind and water would be affected by a 100-year storm event from the same water. For the purposes of establishing a CCCL, the sand beach between the R-Monument #15 and the R-Monument #30 "fronts" on the Gulf of Mexico.
The Petitioner asserts that the establishment of the line by rule is arbitrary or capricious in that the line is based upon inaccurate studies which- fail to account for actual storm data. The Petitioner further asserts that the Department failed to conduct a comprehensive engineering study and topographic survey which establishes the necessity for a CCCL across Petitioner's property.
A capricious action is one taken without thought or reason or which is taken irrationally. An arbitrary decision is one that is not supported by facts or logic or that is despotic. In this case, the CCCL is located based upon a complex computer model which projects expected 100-year storm tides, and utilizes extensive weather and topographic data to predict the effect of such tides. Although the witnesses who testified as to the preparation of the Gulf County CCCL study are not professional engineers, the evidence is insufficient to establish that the data upon which the witnesses relied in performing the study was not based upon appropriate engineering and topographic information.
The evidence does not establish that the Department's projections are invalid or unreasonable. It certainly does not establish that the CCCL was determined without thought or reason, or unsupported by facts or logic.
Section 161.052, Florida Statutes, adopted by the 1970 Legislature, prohibits unauthorized excavation or construction "within 50 feet of the line of mean high water at any riparian coastal location fronting the Gulf of Mexico or Atlantic coast shoreline of the state, exclusive of bays, inlets, rivers, bayous, creeks, passes, and the like." (emphasis supplied).
The 1971 Legislature adopted Section 161.053, Florida
Statutes, authorizing the establishment of "coastal construction setback lines along the sand beaches of the State of Florida fronting on the Atlantic Ocean and the Gulf of Mexico."
Contrary to the language of Section 161.052, in adopting Section 161.053 the Legislature did not specifically exclude "bays, inlets, rivers, bayous, creeks, passes, and the like" from areas "fronting" on the Atlantic Ocean or Gulf of Mexico for which coastal construction setback lines were to be set. One must assume that, had the Legislature intended to exempt property located on bays from inclusion in an area protected by a CCCL, the Legislature would have specifically done so, as it has done previously.
Although Section 161.053 has been amended subsequently, none of the amendments suggest that the Legislature intended to exempt sand beach and dune systems which lie adjacent to bays from beach-dune systems for which coastal construction control lines are to be established. The statute authorizes the Department to "establish coastal construction control lines on a county basis along the sand beaches of the state fronting on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida. Such lines shall be established so as to define that portion of the beach- dune system which is subject to severe fluctuations based upon a 100-year storm surge, storm waves, or other predictable weather conditions."
The Department is authorized to set control lines so as to define the beach-dune system subject to severe fluctuations based upon a 100-year storm surge, storm waves, or other predictable weather conditions. In this case, the evidence establishes that Petitioner's Gulf County lands between R-Monument #15 and R-Monument #30 front on the Gulf of Mexico based the effect
of Gulf wind and wave action on the property, and that such lands are subject to severe fluctuations based upon a 100-year storm surge, storm waves, or other predictable weather conditions.
FINAL ORDER
Based upon the foregoing findings of fact and conclusions of law, it is determined that the portion of Rule 16B-26.016 Florida Administrative Code, which establishes a Gulf County coastal construction control line is not an invalid exercise of delegated legislative authority, and the petition is DISMISSED.
The hearing officer's findings on both issues are supported by competent, substantial evidence in the record. The evidence clearly establishes that the land in question is part of the beach-dune system which is subject to the direct influence of weather conditions in the Gulf of Mexico, including severe fluctuations caused by a 100-year storm event. In the context of determining the lands within its CCCL jurisdiction, DNR has given "fronting" the only
logical and appropriate interpretation in light of its statutory duty to protect the "beach-dune system."1/ Contrary to the definition proposed by appellant's expert ("facing on or "abutting"), DNR's definition reflects the physical interaction between the sand beach at issue and the Gulf of Mexico. The record evidence also supports DNR's choice of methodology and the calculations used to determine the location of the CCCL.
AFFIRMED.
WIGGINTON and ZEHMER, JJ., CONCUR.
ENDNOTES
1/ In Island Harbor Beach Club, Ltd. v. Department of Natural Resources, 495 So.2d 209, 214 (Fla. 1st DCA 1986), this court upheld DNR's definition of the "beach-dune system" over which the CCCL is to be established:
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 structures.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable William F. Quattlebaum, Hearing Officer
WHEREAS, in that certain cause filed in this Court styled: Division of Administrative Hearings
ST. JOSEPH LAND AND DEVELOPMENT COMPANY
vs. Case No. 91-1400
DEPARTMENT OF NATURAL RESOURCES Your Case No. 89-4223RX
The attached opinion was rendered on March 17, 1992.
YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.
WITNESS the Honorable James D. Joanos
Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 28th day of May, 1992.
Clerk, District Court of Appeal of Florida, First District
| Issue Date | Proceedings |
|---|---|
| Apr. 17, 1991 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 17, 1992 | Opinion | |
| Apr. 17, 1991 | DOAH Final Order | For purposes of setting Coastal construction control line, beaches fronting ocean or gulf are those directly affected or influenced by 100 year storm event. |
