STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH G. STEVENS and )

SHIRL M. STEVENS, )

)

Petitioners, )

)

)

vs. ) CASE NO. 90-1507

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on June 14, 1990, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioners: Kenneth G. Stevens, Esquire, pro se

412 Northeast Fourth Street Fort Lauderdale, Florida 33301

For Respondent: Dana M. Wiehle, Esquire

Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

Room 1003

Tallahassee, Florida 32399 STATEMENT OF THE ISSUES

Whether Petitioners are entitled to a permit from Respondent to construct certain improvements seaward of the coastal construction control line.

PRELIMINARY STATEMENT

On December 12, 1988, the Petitioners filed an application with Respondent for authority to construct certain improvements to their real property located in Broward County, Florida, seaward of the coastal construction control line.

The application was deemed complete December 11, 1989. The application was for the construction of a poured monolithic reinforced concrete slab patio approximately 27' by 50' to be supported by twenty-one reinforced concrete pilings. Respondent denied the application and this proceeding followed.

At the formal hearing, Petitioners called the following witnesses: Russ Adams, Randall F. Keller, and Kenneth G. Stevens. Mr. Adams, is a building official with the City of Fort Lauderdale, Florida. Mr. Keller is an architect who drafted the plans for the improvements Petitioners desire to make. Mr.

Stevens is a member of the Florida Bar and one of the Petitioners in this

proceeding. The other Petitioner is Mr. Stevens' wife. Petitioners introduced five exhibits, each of which was accepted into evidence. Respondents called the following witnesses: Jocelyn Barrington Manson-Hing and James Chalecki. Mr.

Manson-Hing is employed by Respondent as an Engineer III and was accepted as an expert witness in the field of coastal engineering. Mr. Chalecki is employed by Respondent as the Engineering Supervisor in Respondent's Bureau of Coastal Engineering Regulation. Mr. Chalecki was accepted as an expert witness in the fields of coastal engineering and coastal permitting and regulation. Respondent introduced ten exhibits, each of which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On December 12, 1988, Petitioners filed an application with Respondent for a permit to construct improvements to real property seaward of the coastal construction control line (CCCL). Petitioners' property is located at 2400 North Atlantic Boulevard, Fort Lauderdale, Florida.

   
   

2. The parcel of land owned by Petitioners measures approximately 50' in width and 140' in depth and is located in a primarily residential area of beachfront property with high property values. On this parcel is a residence that is approximately 1600 square feet in size. The residence is constructed on reinforced concrete pilings. There are many other residential and commercial structures in this area which are also constructed on reinforced concrete pilings.

   
   

3. The improvements to this property seaward of the CCCL that Petitioners desire to make and that Respondent finds objectionable is the construction of a poured monolithic reinforced concrete slab patio supported by twenty-one reinforced concrete pilings. The patio would be approximately 27' by 50' in size.

   
   

4. On November 17, 1987, Respondent approved an application filed by a previous owner of this property for the construction of a patio to be constructed with concrete pavers. Petitioners arranged to have the previously approved permit transferred to their name.

   
   

5. The project contemplated by the subject application employs a different method of construction than the one permitted in 1987 because Petitioners desire to have a patio that is more attractive and is easier to maintain. Petitioners are also concerned that concrete pavers will be hazardous during a storm since they may be subject to being swept along by high winds and water. Petitioners have valid reasons for preferring the method of construction reflected by the subject application based on aesthetic and maintenance considerations. However, Petitioners did not establish that the proposed method of construction was necessary as a safety measure. To the contrary, the greater weight of the evidence was that blocks the size of the pavers to be used for the construction that has been permitted would not be propelled by either hydrodynamic or

   aerodynamic forces during a major storm as Petitioners contend. Instead, these blocks would likely be undermined during a major storm and, because of their weight, fall as the beach is eroded.

   
   

6. Respondent has regulatory authority over the property in question. Respondent's regulatory authority, which includes rule making authority, is conferred by statute. Respondent's responsibilities include the preservation of the beach-dune area within its jurisdiction.

   
   

7. There is a relationship between the siting of a structure, in terms of its proximity to the shoreline, and the likelihood that the structure will have an impact on the beach and dune systems. The subject patio is to be located within the beach-dune system. The patio Petitioners propose to construct on concrete pilings would have more of an adverse impact on the beach-dune system than a patio constructed of concrete pavers. During a major storm, greater erosion on the site around the pilings will occur as a result of scour. Following a major storm, the ability of a dune to re-form will be more inhibited if the patio is supported by pilings.

   
   

8. Considering the hundreds of thousands of pilings that are already in place along the beach, the effect of the twenty-one pilings proposed by Petitioners, whether considered individually or cumulatively, will be insignificant.

   
   

9. A patio is usually considered by Respondent to be a "minor structure". "Minor structures" are non-habitable structures that are generally designed to be expendable during a major storm event. Dune walkovers, viewing platforms, and decks are examples of minor structures. A patio constructed of concrete pavers would be another example. The nature of their construction permits minor structures to be placed more closely to the shoreline than major structures.

   
   

10. The patio as proposed Petitioners has been properly categorized by Respondent as being a "major structure" since it is designed to withstand a major storm event.

    
    

11. Respondent has not to date permitted any major structure as far east of the CCCL in this area of Broward County as Petitioner's proposed project. All major structures constructed on pilings that are that far east of the CCCL were built before permits were required. Respondent is concerned that the granting of the subject permit will set a precedent that will require the issuance of permits for the construction of other major structures as far seaward of the CCCL as the Petitioners' proposed project, and that such construction would result in a cumulative adverse impact on the beach-dune system.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Petitioners, as the applicant for the subject permit, has the burden of proving their entitlement to the permit by a preponderance of the evidence. Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA

14. Section 161.053, Florida Statutes, provides, in pertinent part, as follows:

    
    

    (1)(a) The Legislature finds and declares that the beaches in this state and the coastal barrier dunes adjacent to such beaches, by their nature, are subject to

    frequent and severe fluctuations and represent one of the most valuable natural resources

    of Florida and that it is in the public interest to preserve and protect them from imprudent construction which can jeopardize the stability of the beach-dune system, accelerate erosion ... Special siting and design considerations shall be necessary seaward of established coastal construction control lines to ensure the protection o the beach-dune system, proposed or existing structures, and adjacent properties and preservation of public access.

    * * *

    1. ... [A] permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows:

       1. The department may authorize an excavation or erection of a structure ... upon receipt of an application from a property and/or riparian owner and upon the consideration of facts and circumstances, including:

          1. Adequate engineering data concerning shore- line stability and storm tides related to shoreline topography;

          2. Design features of the proposed structures or activities;

          3. Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach-dune system, which, in the opinion of the department, clearly justify such a permit.

          
          

15. The establishment of the coastal construction control line does not preclude all development of property seaward of the line. However, such development is limited and the necessity of such development or construction shall be stated and clearly justified by the applicant. Special siting, structural, and other design considerations are required. Rule 16B-33.005(1) and (2), Florida Administrative Code.

    
    

16. Rule 16B-33.007, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    The following requirements must be met before a permit is approved ...:

    1. The proposed structure or other activity shall be located a sufficient distance landward of the beach-dune system

       to permit natural shoreline fluctuations and to preserve the dune stability and natural recovery following storm induced erosion. ...

    2. All structures shall be designed so as

    to minimize any expected adverse impact on the beach-dune system ...

    * * *

    1. The necessity for activities seaward of

       the control line or setback line shall be stated and clearly justified by the applicant in accordance with the requirements of this Chapter. In analyzing the information submitted by the applicant, the Department shall consider the following types of information and concerns:

       1. The purpose of construction or excavation;

    * * *

    (i) Any alternatives to the proposed construction or excavation available to the applicant ...

    
    

17. Petitioners, as the parties with the burden of proof, have failed to establish their entitlement to the subject permit.

    
    

18. Respondent's conclusion that Petitioners' application failed to establish their entitlement to the permit was based on its interpretation of its pertinent rules and governing statutes. Petitioners did not establish that Respondent has, in any manner, erroneously construed these rules or statutes.

    An agency's interpretation of its own rules and regulations will not be overturned even if such interpretation is not the sole possible interpretation, the most logical interpretation, or the most desirable interpretation. An agency's interpretation of its rules and governing statutes will not be overturned unless the interpretation is clearly erroneous. Health Quest Corporation, et al. v. Department of Health and Rehabilitative Services and Arbor Health Care Co., et al., 11 FALR 5427 (1989), ABC Liquors, Inc. v.

    Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla. 1983).

    
    

19. Petitioners failed to establish that Respondent acted in an arbitrary or capricious manner in rejecting their application to construct this patio on pilings. Respondent's concern as to establishing a precedent for the permitting of major structures as far seaward of the CCCL as the subject project is a valid agency consideration which justifies its rejection of the application.

RECOMMENDATION

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

That Respondent enter a final order which denies the subject permit.

DONE AND ENTERED this 20th day of September, 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1990.

APPENDIX TO THE RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners.

1. The proposed findings of fact in paragraphs 1-6 and 8-10 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence.

3. The proposed findings of fact in paragraph 8 are rejected as being argument.

4. The proposed findings of fact in the first sentence of paragraph 11 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 11 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in the third sentence of paragraph 11 are rejected as being unnecessary to the conclusions reached.

5. The proposed findings of fact in paragraph 12 are rejected as being subordinate to the findings made.

6. The proposed findings of fact in paragraph 13 are rejected as being conclusions of law that are unnecessary to the conclusions reached.

7. The proposed findings of fact in paragraph 14 are rejected as being unsubstantiated by the evidence. While Petitioners' application included as a proposed condition to the issuance of the permit, a covenant running with the land that would require the property owner to reconstruct the beach-dune system in the event of destruction by a major storm, the evidence did not establish, as Petitioners proposed, that the covenant would "... protect the interests of DNR and its long term end of protecting the dunes and beaches".

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1-2, 5-6, 10-16, 24-27, 30-31, and 33 are adopted in material part by paragraph 1 of the Recommended Order.

2. The proposed findings of fact in paragraphs 3 and 4 are rejected as being unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraph 21 are rejected as being subordinate to the findings made.

4. The proposed findings of fact in paragraphs 7-9 and 28-29 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made.

5. The proposed findings of fact in paragraphs 17-20, 23, and 32 are rejected as being unnecessary to the conclusions reached. These proposed findings are incorporated in part as conclusions of law.

6. The proposed findings of fact in paragraph 22 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made.

COPIES FURNISHED:

Kenneth G. Stevens

412 Northeast Fourth Street Fort Lauderdale, Florida 33301

Dana M. Wiehle, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

Room 1003

Tallahassee, Florida 32399-3000

Tom Gardner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Ken Plante General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Docket for Case No: 90-001507

Orders for Case No: 90-001507