STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ANDREW MACHATA and )
NEIL LANZENDORF, )
)
Petitioners, )
)
vs. )
)
DEPARTMENT OF ENVIRONMENTAL ) PROTECTION f/k/a DEPARTMENT OF )
NATURAL RESOURCES, ) CASE NOS. 90-8074
) 90-8075
Respondent, ) 93-0604RU*
)
vs. ) *Final Order issued under
) this DOAH Case No.
CENTER FOR MARINE CONSERVATION, ) DONNA DEVLIN, and CARIBBEAN )
CONSERVATION CORPORATION, )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to written notice, a formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 11-15, 1992 and February 22-27, 1993, in Vero Beach, Florida, and on April 14-16, 1993, in Tallahassee, Florida.
APPEARANCES
For Petitioners: Thomas G. Tomasello, Esquire
Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507
Tallahassee, Florida 32314-6507
For Respondent: Dana M. Wiehle
Assistant General Counsel
Department Of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399
For Intervenors: David G. Guest, Esquire
Kenneth B. Wright, Esquire Sierra Club Legal Defense Fund Post Office Box 1329 Tallahassee, Florida 32302
STATEMENT OF THE ISSUE
The issue for determination in this proceeding is whether Respondent should issue a permit for coastal armoring to protect Petitioners' homes.
PRELIMINARY STATEMENT
Respondent recommended to the Governor and Cabinet that Petitioners' application for a coastal armoring permit should be approved. The Governor and Cabinet denied the application without explanation.
Petitioners timely filed a petition for formal hearing on November 19, 1990. The matter was referred to the Division of Administrative Hearings on December 21, 1990, and assigned to Hearing Officer Donald D. Conn on January 7, 1991.
After several continuances, the case was transferred to the undersigned on April 22, 1991. A formal hearing was scheduled for August 1, 1991, pursuant to a Notice Of Hearing issued on April 22, 1991. An Order Granting Intervention was entered on May 31, 1991, and the two cases were consolidated on June 24, 1991. The formal hearing was continued so the parties could pursue settlement negotiations.
On July 30, 1991, the parties filed a Proposed Prehearing and Hearing Schedule. The prehearing and hearing schedule outlined the proposed hearing length, location and dates, established a discovery and prehearing schedule, and provided for the filing of witness and exhibit lists by all parties.
An Initial Prehearing Stipulation was filed on September 4, 1991. No additional written stipulations were submitted by the parties prior to the formal hearing.
A portion of the formal hearing was conducted on May 11-15, 1992, in Vero Beach, Florida. The formal hearing was again continued so the parties could pursue settlement negotiations.
On February 4, 1993, Petitioner, Andrew Machata, filed a Petition For Determination Of Invalidity Of Agency Statements. The petition challenged certain existing rules and agency statements pursuant to Sections 120.56 and 120.535, Florida Statutes. 1/ Expedited time requirements for rule challenges were waived by all of the parties. The rule challenges were consolidated with this proceeding on February 15, 1993.
Respondent filed a motion to dismiss the action instituted pursuant to Section 120.535. Ruling was reserved and is included in the Final Order entered on even date with this Recommended Order.
The formal hearing was reconvened from February 22-27, 1993, in Vero Beach, Florida. Pursuant to the agreement of the parties, the formal hearing was moved to Tallahassee, Florida, and concluded on April 14-16 1993.
During the formal hearing, Petitioners presented the testimony of 11 witnesses. Fifty-seven of Petitioners' exhibits were admitted in evidence. Respondent presented the testimony of five witnesses and had 51 exhibits admitted in evidence. Intervenors presented the testimony of six witnesses and had 26 exhibits admitted in evidence. The identity of the witnesses and
exhibits, and the evidentiary rulings regarding each, are described in the transcript of the formal hearing filed with the undersigned on August 7 and 10, 1992, May 10, 1993, and July 26, 1993.
The parties timely filed proposed findings of fact and conclusions of law on August 16, 1993. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
The Parties
Petitioners are "property and/or riparian owner[s]" within the meaning of Section 161.053(5)(a). Petitioners own two single family residences situated on contiguous sites on highway A1A in Orchid Island, Indian River County, Florida. Each site fronts the Atlantic Ocean and extends landward from the mean high water line.
Petitioners' homes are major habitable structures within the meaning of Florida Administrative Code Rule 16B- 33.002(54)(a) and 16B-33.005(3)(b) and (c). 2/ Each home is a two story residence that includes a garage, swimming pool, and patio. The foundation of each home is a nonconforming foundation within the meaning of Rule 16B-33.007(4). 3/
Petitioners' application for a coastal armoring permit was prepared and submitted in accordance with the requirements of Section 161.053(5), Rule 16B-33.008, and other agency requirements. Respondent determined that the application was complete on or before August 14, 1990.
Respondent is the agency responsible for assessing applications for coastal armoring permits. Respondent recommends action to the Governor and Cabinet. The Governor and Cabinet sit as the agency head and take final agency action. Respondent was formerly known as the Department of Natural Resources ("DNR"). On July 1, 1993, the Department of Environmental Protection ("DEP") was created, and DNR was reorganized into DEP. 1993 Laws Of Florida, Chapter 93-21.
Intervenors represent the interests of marine turtles and their nesting habitats. Intervenor, Center For Marine Conservation (the "Center"), is a nonprofit organization that researches marine life. The Center has 8,000 contributing members in Florida that enable it to conduct research and conservation activities. Intervenor, Donna Devlin, is an officer of the Center and citizen of the state. Intervenor, Caribbean Conservation Corporation ("CCC"), is a not-for-profit Florida corporation engaged in sea turtle research and conservation in Florida. The CCC receives support from private foundations and the contributions of its 5,000 members.
Background
Petitioners began construction of their homes prior to March 4, 1987. At the time construction began, the coastal construction control line defining that portion of the beach-dune system subject to fluctuations based on a 100 year storm surge (the "CCCL") 4/ was located seaward of Petitioners' homes. On March 4, 1987, the CCCL was reestablished and moved landward of Petitioners' homes. By that time, construction had progressed sufficiently, and both houses were grandfathered by applicable regulatory restrictions.
The foundation of each home is a nonconforming foundation within the meaning of Rule 16B-33.007(4). The foundations are not designed to resist the predicted forces associated with a one-hundred-year storm event, do not elevate the support structures of the homes above the breaking wave crests or wave uprush projected for such a storm, and do not meet other applicable design criteria.
On Thursday, March 9, 1989, a Northeast storm impacted the east central coast of Florida. The storm lasted approximately five days 5/ and eroded the shoreline in Indian River County including that portion in front of Petitioners' homes.
The dune fronting Petitioners' homes was severely undercut by wave action from the storm. The dune in front of Petitioners' property suffered 10 feet of bluff line recession.
On Saturday, March 11, 1989, Petitioner, Machata, telephoned Respondent at its Tallahassee office for authority to protect his home from the forces of the storm. Mr. Machata was referred to the Division of Emergency Management.
Mr. Machata telephoned the Division of Emergency Management at 10:30
a.m. on March 11, 1989, and spoke with Mr. Bill Whiney. Mr. Whiney advised Mr. Machata that the Division was aware of the storm and had delegated emergency management to Mr. Douglas Wright, Director of Emergency Management, Indian River County.
Mr. Wright conducted a site inspection within an hour of Mr. Machata's telephone call. The dune was being undercut, and waves were striking near the top of the dune. Mr. Wright did not get near the bluff line for fear that the dune would collapse.
Mr. Wright authorized the temporary placement of large quarry rocks on the seaward side of the dune. The rocks were placed at the toe of the dune on Saturday and Sunday, March 11 and 12, 1989. Mr. Wright instructed Petitioners to contact Respondent on Monday, March 13, 1989, for a permit to construct a permanent rock revetment or other bulkhead.
On Wednesday March 15, 1989, an inspector for Respondent confirmed that construction of a rock revetment had begun without benefit of a permit from Respondent. Respondent advised Mr. Machata to stop construction of the rock revetment pending application for, and approval of, a coastal armoring permit.
Mr. Machata immediately ceased further construction. At that point, a rock revetment 110 feet long had been placed along the toe of the dune in front of Mr. Machata's house.
On July 19, 1989, Petitioners filed an application for a permit to complete construction of the rock revetment. Following several meetings and correspondence between Petitioners and Respondent, Respondent determined that the proposed revetment failed to comply with applicable requirements.
At the behest of Respondent, Petitioners agreed to apply for a permit to construct and maintain the steel sheet pile bulkhead at issue in this proceeding. Respondent agreed to recommend approval of the steel sheet pile bulkhead, in place of the rock revetment, if Petitioners demonstrated their homes are vulnerable to a 10 to 15 year return interval storm event (a "RISE").
The return interval of a storm is its statistical probability of occurrence. A lower return interval indicates a greater probability of occurrence and a higher rate of frequency. A high frequency storm is a storm with a return interval of 25 years or less. Storms with a return interval greater than 25 years are major storms with greater storm force. 6/
On April 17, 1990, Petitioners submitted an application for a permit to construct and maintain a vertical steel sheet- pile bulkhead 303 feet long. The proposed bulkhead is located as far landward as possible. It is 10 to 15 feet landward of the dune bluff line and vegetation line and 23 feet seaward of Petitioners' existing patios. All work on the bulkhead is to take place landward of the steel wall.
The proposed bulkhead is designed to withstand the force of a high frequency storm with a return interval of 25 years. The design, engineering, and construction required to protect Petitioners' homes reflects the storm force associated with a high frequency storm.
The steel wall will be constructed with 300 to 400 individual sheets of corrugated steel placed in the shore parallel direction. Each sheet is 25 feet long, 18-24 inches wide, 3/8 inches thick, and weighs approximately 1000 pounds.
The sheet piles will be stockpiled on site and transported to the dune by a crane equipped with a vibratory hammer. The first sheet pile will be placed at one end of the proposed bulkhead and partially driven into the sand with the vibratory hammer. The next sheet pile will be threaded and interlocked with the first through the coupling joints and partially driven into the sand. After 50 feet of the proposed wall is put in place, the piles in that 50 foot section will be driven to their design depth. The remaining portion of the wall will be completed in 50 foot segments using the same procedure.
Once the sheet piles are in place, 20 foot long steel tie rods will be placed through and connected to the piles near their top. The tie rods will be on the landward side of the piles arranged perpendicular to them. The tie rods will be spaced 15 feet apart, on center, along the entire length of the sheet pile wall. The tie rods will be encased in poured concrete.
The other end of the tie rods will be secured to a concrete anchor buried in the soil (a continuous "deadman"). The deadman will run parallel to the sheet pile wall approximately 20 feet landward of the wall. The deadman is constructed with concrete formed and poured in place with reinforcing steel. The steel pile wall is connected to the deadman with tie rods to increase the stability of the sheet pile wall and to achieve the designed level of protection.
Forty foot return walls at each end of the bulkhead will run landward of Petitioners' lot lines. The return walls ensure the stability of the bulkhead during storm attack by preventing erosion of sand landward of the bulkhead. A concrete cap will be poured in place on top of the sheet pile wall.
The proposed bulkhead is less impactive than other rigid coastal armoring devices that provide equivalent protection. This form of armoring was proposed, in place of a rock revetment, at Respondent's request. It is uncontroverted that the design and construction of the proposed bulkhead meets all applicable engineering and structural design criteria.
On May 22, 1990, Respondent issued a letter of intent to approve the proposed bulkhead and gave landowners adjacent to Petitioners' property notice of Respondent's intended action. Adjacent property owners did not object to the proposed bulkhead. Respondent's Division of Beaches and Shores recommended approval of Petitioners' application subject to stated conditions.
On August 14, 1990, an agenda item recommending approval of Petitioners' application was considered by the Governor and Cabinet. The agenda item represented that Petitioners' homes are vulnerable to a 15 year RISE.
After hearing arguments, the Governor and Cabinet denied Petitioners' application without explication.
Immediately following the denial of Petitioners' application, the Governor and Cabinet directed Respondent's staff to develop a coastal armoring policy for the state. Armoring applications completed as of August 14, 1990, including Petitioners', were expressly exempt from the new policy.
The Governor and Cabinet adopted a coastal armoring policy on December 18, 1990 (the "1990 policy"). The 1990 policy prohibits all coastal armoring within the Archie Carr National Wildlife Refuge. Petitioners' homes are located within the Refuge. A qualifying structure located outside the Refuge must be vulnerable to a five year RISE to qualify for coastal armoring. A notice of vulnerability caveat states that an applicant who constructs his or her home after the notice of the public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. 7/ Since Petitioners' application was completed on or before August 14, 1990, the proposed bulkhead is expressly exempt from all of the provisions of the 1990 policy. No other applications were complete on or before August 14, 1990.
A Final Order denying Petitioners' application for a coastal armoring permit was filed with Respondent's clerk on November 1, 1990. On November 19, 1990, Petitioners timely filed a petition for a formal administrative proceeding in accordance with Section 120.57(1).
Agency Requirements
Respondent consistently applies a multi-tiered test to assess applications for coastal armoring permits. The first tier consists of two parts. First, armoring must be proposed for a major habitable structure within the meaning of Rule 16B- 33.002(54)(a) and 16B-33.005(3)(b) and (c). Second, the applicant must state and "clearly justify" the "necessity" for protecting a major habitable structure, within the meaning of Rule 16B-33.005(1), and must show that the direct and cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed armoring. If both requirements of the first tier are satisfied, Respondent then considers alternatives to the proposed armoring. Isolated rigid coastal armoring that does not close the gap in existing armoring, such as the proposed bulkhead, must be the only "feasible" means of protecting a major habitable structure. 8/
It is uncontroverted that Petitioners' homes are major habitable structures. Therefore, the issues for determination in this proceeding are whether Petitioners' have "clearly justified" the "necessity" for protecting their homes, whether the direct and cumulative impacts clearly justify the armoring, and whether the protection sought is the only "feasible" alternative.
The phrase "clearly justify" is the test of both the "necessity" for armoring and the direct and cumulative impacts of armoring. Section 161.053(5)(a)3 requires Respondent to consider whether the direct and cumulative impacts on the beach-dune system clearly justify the proposed armoring. Rule 16B-33.005(7) states that: the proposed armoring may not have an adverse impact on the beach-dune system at the specific site; and a number of similar structures on the coast may not have a significant adverse cumulative impact. 9/
The cumulative impact doctrine has been applied as a policy of equitable distribution in permitting cases involving environmental control statutes. 10/ The doctrine is intended to distribute permitted activities without contravening applicable standards or the public interest. The cumulative impact of the proposed bulkhead on the beach-dune system and on marine turtles is not imposed in addition to other applicable requirements but is a factor to be considered in determining whether the proposed bulkhead is clearly justified within the meaning of Section 161.053(5)(a)3 and applicable rules. 11/
The terms "necessity", "clearly justify", and "feasible" are not defined in applicable statutes and rules. 12/ Respondent has issued written memoranda and uttered unwritten policy statements to provide guidance in defining the quoted terms. Respondent attempted to explicate the quoted terms in this proceeding.
Necessity: Vulnerability To High Frequency Storms
Under the 1990 policy, the "necessity" for armoring must be clearly justified by demonstrating vulnerability to a five year RISE. However, the proposed bulkhead is exempt from the specific RISE imposed by the 1990 policy. Respondent asserts that a 10 or 15 year RISE was used to assess vulnerability prior to the 1990 policy and should be applied in this proceeding. In order to ascertain the specific numeric standard of vulnerability applicable in this proceeding, if any, it is necessary to consider the emergence of the vulnerability requirement prior to the adoption of the 1990 policy. 13/
Emerging Vulnerability Requirement
In November, 1984, a severe storm caused major erosion over wide expanses of the east coast of Florida (the "Thanksgiving Day storm"). A number of applications for coastal armoring followed.
Respondent's staff prepared a report proposing specific policy directives to provide guidance in reviewing applications for coastal armoring. The policy directives were approved by the Governor and Cabinet on March 19, 1985. However, the Governor and Cabinet expressly directed staff to review armoring applications on a case-by-case basis and did not adopt a specific policy (the "1985 directive").
The first application for a coastal armoring permit to go before the Governor and Cabinet following the 1985 directive was filed by Seaplace Association, Inc. The application was for a buried, sloping rock revetment and returns seaward of the two- story Seaplace condominium.
The Seaplace application was recommended for approval by Respondent and considered by the Governor and Cabinet as an agenda item on February 23, 1988. The agenda item prepared by Respondent stated that Seaplace was vulnerable to a RISE of less than 10 years. This was the first agenda item where vulnerability to a specific RISE was included in Respondent's justification for a proposed coastal armoring permit. At the time that the agenda item was considered, Respondent's director stated that Respondent imposed a 20 year RISE to assess vulnerability in coastal armoring applications. The Governor and Cabinet denied the Seaplace application without explication.
Following the denial of the Seaplace application, a storm impacted the shoreline in front of Seaplace causing erosion and further threatening the condominium. After a meeting with Cabinet aides, Respondent recycled the prior agenda item to reprint the document with no changes and brought the item back before the Governor and Cabinet with the same stated vulnerability. The Governor and Cabinet approved the Seaplace application on May 24, 1988, without explication.
In approving the Seaplace application, the Governor and Cabinet neither explicitly nor implicitly adopted a specific RISE as a numeric standard for assessing vulnerability prior to the 1990 policy. The agenda items considered by the Governor and Cabinet on February 23 and May 24, 1988, did not recommend that the Governor and Cabinet adopt a 10 year RISE as a numeric standard for assessing vulnerability in all armoring applications but merely stated that Seaplace was vulnerable to a 10 year RISE. When the Governor and Cabinet considered the Seaplace application, they were informed by Respondent's director that Respondent used a 20 year RISE as a numeric standard for assessing vulnerability.
When the Governor and Cabinet intend to adopt a policy, notice is given to the public prior to consideration of the proposed policy. No such notice was given prior to approving the Seaplace application on May 24, 1988.
On February 7, 1990, Respondent issued internal memorandum PM-27-90 as a policy statement to guide staff in assessing the justification for rigid coastal armoring structures. Memorandum PM-27-90 states:
. . . Existing policy on the use of rigid coastal protection structures is contained in Subsection 16B-33.005(3), Florida Administrative Code. The general policy restricts use of such structures . . . and permits them only if they are fully justified as the only feasible means of
protecti[on]. . . . This policy [PM-27-90] provides guidance on the determination of justification for such structures.
2. Threat determination
* * *
b) The structure proposed to be protected is . . . exposed to direct impacts from hydrodynamic forces associated with high frequency storms and in danger of imminent
collapse from such storms. (emphasis supplied)
Memorandum PM-27-90 did not prescribe a specific RISE as a numeric standard for assessing vulnerability in all coastal armoring applications. It merely required a qualifying structure to be exposed to direct impacts from "a high frequency storm." A high frequency storm can have any return interval up to 25 years.
The requirement in PM-27-90 that a qualifying structure be in imminent danger of collapse imposes neither a specific RISE nor an additional requirement for assessing vulnerability. After PM-27-90 was issued, for example, Respondent agreed to recommend approval of the proposed bulkhead if Petitioners demonstrated that their homes are vulnerable to either a 10 or 15 year RISE.
When Memorandum PM-27-90 was superseded by the 1990 policy, it lost any general applicability it may have had within the meaning of Section 120.52(16). Since Petitioners' applications are the only applications exempt from the 1990 policy, the applicability of PM-27-90, if any, is not general but is limited to this proceeding. 14/
Respondent required, under the emerging policy in effect prior to the 1990 policy, that qualifying structures be "exposed to direct impacts from . . . high frequency storms." No numeric standard narrowed the scope of a "high frequency storm" to a specific RISE. Nor was a specific RISE identified in final agency action taken on specific applications prior to the adoption of the 1990 policy. While Respondent wishes to deviate from the general requirement for vulnerability that was in effect prior to the 1990 policy by imposing a specific RISE in this proceeding, Respondent failed to explicate a justification for such a deviation. 15/
In cases involving an eroding shoreline, the selection of a specific RISE to assess vulnerability is not intended to determine whether coastal armoring is going to be permitted. Rather, it is intended to determine when such armoring will be permitted and perhaps what form the armoring will take. 16/
The shoreline in the area of the proposed project is an eroding shoreline. Between 1972 and 1992, the shoreline in front of Petitioners' homes eroded at an annual rate of 1.7 feet. Respondent conducted shoreline surveys by registered surveyors at Respondent's monuments R-25 through R-30 in Indian River County. Petitioners' homes are located between monuments R-27 and R-28 and are closest to R-27. The field survey data is more reliable than historic shorelines from 1880-1968 depicted on maps submitted by Respondent and Intervenors during the formal hearing.
Between 1972 and 1992, the bluff line at R-27 receded 42 feet. There was 50 feet of bluff line recession at R-25, 40 feet at R-26, and 43 feet at R-
Between June, 1986, and March, 1992, five to six feet of dune recession occurred at R-27 with no evidence of dune recovery during that period.
Since 1972, a significant decrease in the bluff line near Petitioners' homes has been caused by storms. The Thanksgiving Day storm caused 15 feet of bluff line recession. The storm in March, 1989, caused 10 feet of recession.
The bluff line at the northern boundary of the Machata home receded 10 feet between 1987 and 1989. The bluff line at the southern boundary of his home receded seven feet during the same period. While the bluff line and mean high water line generally recede at the same rate, the mean high water line at R-27 receded 19.7 feet, or 3.4 feet a year, between 1986 and 1992, and 14.71 feet, or
2.6 feet annually, at R-28.
Inlets constructed by government agencies cause 85 percent of the erosion along Florida's southeast coast. The Sebastian Inlet is the principal cause of erosion of the shoreline in front of Petitioners' homes.
The erosion rate of the shoreline in front of Petitioners' homes can be expected to fall below one foot a year only if the Sebastian Inlet Management Plan to transfer sand is fully implemented. No evidence was presented to show when the plan will be implemented, if at all.
As the shoreline erodes from the effects of the Sebastian Inlet and natural erosion, Petitioners' homes will eventually be vulnerable to a five year RISE. In the absence of any intervening changes, Petitioners will then satisfy the vulnerability requirement in the 1990 policy. However, Petitioners are expressly exempt from the specific vulnerability requirement in the 1990 policy and should not be required to wait until they comply with that requirement.
Petitioners do not have to wait until their homes are vulnerable to a five year RISE if vulnerability is assessed using a 25 year RISE. A 25 year RISE is consistent with the design life of the proposed bulkhead. Rule 16B- 33.007(6)(b) requires that armoring:
. . . should be designed for the minimum wave loads which are applicable for the design storm conditions which justify the [armoring]. . . .
The design life of the proposed bulkhead is 25 years, but Respondent asserts that Petitioners must show that their homes are vulnerable to a 10 or 15 year RISE to clearly justify the necessity for the proposed bulkhead. Respondent failed to explicate a justification for deviating from Rule 16B- 33.007(6)(b) either by accepting a design life that is inconsistent with Respondent's vulnerability requirement or by assessing vulnerability with a RISE that is less than the 25 year design life of the proposed bulkhead. Absent the requisite justification for Respondent's deviation, Petitioners need only show that their homes are vulnerable to any high frequency storm including a RISE of 25 years.
17/
Vulnerability Clearly Justified By Computer Models
Assuming that a specific RISE applies in this proceeding, Respondent asserts that either a 10 or 15 year RISE should apply. Respondent presented conflicting evidence concerning the specific RISE that should be applied to assess the vulnerability of Petitioners' homes. One of Respondent's experts, a professional engineer and administrator within the Division of Beaches and Shore, testified that Respondent's policy requires vulnerability to a 10 year RISE. However, the Division Director testified that Respondent's policy requires vulnerability to a 15 year RISE. The testimony of the Division Director was credible, persuasive, and consistent with Respondent's original recommendation of approval.
Respondent, without deviation, determines whether a qualifying structure is vulnerable to a specific RISE through the application of computer models. Computer models analyze certain scientific parameters to mathematically simulate storm surge elevation and erosion for a high frequency storm. 18/ If the computer model shows that the eroded profile of the storm would reach the foundations of Petitioners' homes, then their homes are vulnerable to the specific RISE assumed for the storm.
Applicable statutes and rules do not prescribe the computer model to be used in assessing the vulnerability of a qualifying structure. Since 1988, Respondent has relied exclusively on the Dean erosion model for such purposes. The Dean erosion model is named for its developer, Dr. Robert Dean at the University of Florida. 19/
The original Dean model supporting Respondent's recommendation that the Governor and Cabinet approve the proposed bulkhead shows that the eroded profile of a 15 year RISE would reach the foundation of Petitioners' homes. Therefore, each home satisfies the 15 year RISE imposed by Respondent to assess vulnerability in this proceeding.
Another computer model commonly used to assess vulnerability to a high frequency storm is the EDUNE erosion model. The EDUNE model utilized by Petitioners' coastal engineer shows that the eroded profile of a 10 year RISE would reach the foundations of Petitioners' homes. Therefore, each home satisfies the 10 year RISE imposed by Respondent to assess vulnerability prior to the 1990 policy. 20/ Since less severe storms occur more frequently, Petitioners' homes are necessarily vulnerable to more severe storms that occur less frequently including storms with return intervals of 15 to 25 years.
Computer models must be calibrated for high frequency storm events in order to accurately predict the erosion limits of such storms. The results of an erosion model that has not been properly calibrated may not be reliable.
The Dean erosion model has not been calibrated for high frequency storm events. Dr. Dean is currently under contract with Respondent to develop the data base necessary to calibrate the Dean erosion model for high frequency storm events in each county in Florida. Dr. Dean has not completed his calibration for all counties in Florida including the site of the proposed bulkhead.
Both the EDUNE model utilized by Petitioners' expert and the original Dean model utilized by Respondent were calibrated using erosion data from the Thanksgiving Day storm. However, neither erosion model utilized local calibration factors for the proposed project site. No storm hydrograph for the Thanksgiving Day storm is available for Indian River County and no site specific data is available for the proposed site.
In the absence of local calibration data, the accuracy of any erosion model depends on the selection of proper input variables. A change in any input variable can alter the results of the model and affect its accuracy.
The principal input variables for the Dean and EDUNE computer models are: the existing beach profile; the scale parameter, or A factor; the storm surge hydrograph; the storm surge run-up; and the erosion factor. Other input variables include wave height and parameters defining the eroded profile above the storm surge elevation.
Each input variable is a specific number. Applicable statutes and rules do not prescribe numeric values to be used in calibrating erosion models. Instruction manuals prescribe some, but not all, of the numeric values to be used in the absence of local calibration data.
The selection of proper input variables, in the absence of local calibration data, requires the exercise of professional engineering judgment. The reasonableness and competency of the professional judgment used in selecting proper input variables directly affects the accuracy of computer model results.
An erosion factor of 1.5 was properly used in the original Dean model which showed that the eroded profile of a 15 year RISE would reach the foundations of Petitioners' homes. The Bureau of Coastal Engineering applies the Dean model exclusively for Respondent to predict erosion from high frequency storms and to assess the level of vulnerability for a qualifying structure. An erosion factor of 1.5 is the erosion factor approved by the Bureau of Coastal Engineering and consistently used in the Dean model. Use of an erosion factor of 1.5 is consistent with reasonable and appropriate professional judgment and Respondent's long standing practice.
Due to differences in computer models, an erosion factor of 2.5 was properly used by Petitioners' expert in his EDUNE model to show that the eroded profile of a 10 year RISE would reach the foundations of Petitioners' homes. This is the appropriate and reasonable erosion factor to be used for the EDUNE model in the absence of local calibration data.
The A factor is another input variable used in erosion modeling. The A factor defines the shape of the shoreline profile. The A factor is determined by numerically fitting the shoreline to the depth of the nearshore breaking wave. A higher A factor produces less erosion in the computer model. If the shoreline steepens beyond the depth of the nearshore breaking wave and the A factor is determined by fitting the shoreline to a depth beyond the nearshore breaking wave, the A factor will be increased and the erosive force of the projected storm will be decreased.
The A factors used in the original Dean model and the EDUNE model were properly determined by fitting the shoreline to the depth of the nearshore breaking wave. Respondent's manual states that an A factor between 0.14 and
0.16 is most reliable. Use of an A factor of 0.15 is consistent with Respondent's manual and reasonable and appropriate professional judgment.
The Revised Dean Model
Respondent prepared a revised Dean model for the formal hearing. The return frequency approach used in both the original Dean model and EDUNE model measures the predicted force of a storm by emphasizing its storm surge elevation. The volumetric approach used in the revised Dean model measures storm force by emphasizing the erosive force of a storm.
Both storm surge elevation and erosive force are threats to Petitioners' homes. However, the storm surge of an actual storm may or may not be proportional to its erosive force. The Thanksgiving Day storm, for example, had a storm surge elevation equal to a high frequency storm with a return interval of 15 years but an erosive force 2.8 times greater than a major storm such as hurricane Eloise in 1975. 21/
If a computer model is calibrated for a greater erosive force, the model can be used to demonstrate that the storm surge elevation of a less severe storm, with a lower RISE, produces an eroded profile that reaches the foundations of Petitioners' homes. Conversely, if a computer model is
calibrated for a lesser erosive force, the model can be used to demonstrate that the storm surge elevation of the same storm produces an eroded profile that does not reach the foundations of Petitioners' homes.
The revised Dean model prepared by Respondent for the formal hearing used an erosion factor of 1.0 to project the eroded profile. It showed that the eroded profile of a 15 year RISE would not reach the foundations of Petitioners' homes. In the absence of site specific data including storm surge elevation and a storm surge hydrograph for the Thanksgiving Day storm, use of an erosion factor of 1.0 was inconsistent with reasonable and appropriate professional judgment, Respondent's long standing practice, and the terms of Respondent's instruction manual. 22/
The A factor of 0.19 used by Respondent in the revised Dean model was neither appropriate nor reasonable. Respondent determined the A factor in its revised Dean model by fitting the shoreline profile to a depth substantially beyond the depth of the nearshore breaking wave.
The shoreline steepens beyond the depth of the nearshore breaking wave. As the shoreline steepens, the A factor increases. By determining the A factor on the basis of the steeper profile, Respondent overestimated the value of the A factor and underestimated the erosive force of a 15 year RISE.
The revised computer model prepared by Respondent assumed an erosive force that was disproportionate to the actual storm used to calibrate all of the computer models. Both the original Dean and EDUNE models were calibrated with erosion data from the Thanksgiving Day storm. The Thanksgiving Day storm had an erosive force that was disproportionate to its storm surge elevation and 2.8 times greater than a major storm such as hurricane Eloise in 1975.
To the extent the volumetric approach in the revised Dean model assessed vulnerability by a standard other than storm surge, Respondent deviated from the storm surge criteria in existing statutes and rules. The CCCL is statutorily intended to define that portion of the beach-dune system subject to a specific storm surge. 23/ Respondent's rules describe design criteria for coastal armoring 24/ and conforming foundations 25/ by reference to storm surge. Respondent's rules also describe design criteria for qualifying structures by reference to hydrostatic and hydrodynamic loads during a storm surge. 26/ Evidence presented by Respondent to explicate its deviation from storm surge criteria in assessing vulnerability was neither credible nor persuasive and failed to overcome credible and persuasive evidence supporting the results of the original Dean model and EDUNE model. 27/
Respondent's inability to replicate the results of the EDUNE model is not a reasonable and appropriate basis for relying upon the revised Dean model and rejecting both the EDUNE model and the original Dean model. It is not possible to replicate modeling results without knowing each and every input variable used in the model to be replicated. Respondent did not know all of the input variables used by Petitioners' expert in the EDUNE model. In attempting to replicate the results of the EDUNE model, Respondent used input variables not used by Petitioners' expert.
Notice Of Vulnerability
The 1990 policy adopted by the Governor and Cabinet includes a notice of vulnerability caveat. The caveat provides that an applicant who constructs his or her home after notice of the public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. Petitioners' applications are expressly exempt from the 1990 policy. Since Petitioners are not substantially affected by the 1990 policy, within the meaning of Sections 120.535(2) and 120.57(1)(b)15, it is not necessary to determine whether the notice of vulnerability provisions in the 1990 policy are generally applicable within the meaning of Section 120.52(16).
The 1990 policy was adopted by the Governor and Cabinet three years after Petitioners began construction of their homes. At the time construction began, Respondent had no rule or policy giving notice to Petitioners that their construction activities may adversely affect their future ability to obtain a coastal armoring permit.
Respondent advised Petitioners by separate letters issued on April 13 and 14, 1987, that their homes were exempt from the permitting requirements of the revised CCCL. At the time the CCCL was reestablished on March 4, 1987, Respondent determined on the basis of actual site inspections that Petitioners' homes were under construction within the meaning of former Rule 16B-33.002(56). 28/
The letters from Respondent in April, 1987, notified Petitioners that the foundations of their homes were nonconforming foundations and included a caveat that Respondent's staff would not recommend approval of any applications for coastal armoring to protect Petitioners' homes. The letters did not represent that the Governor and Cabinet would not approve their applications for coastal armoring permits.
Petitioners began construction of their homes long before the notice of vulnerability policy was adopted in 1990. By the time Petitioner, Machata, received Respondent's letter in April, 1987, the entire substructure of his home was complete including the placement of 20,000 cubic yards of fill, the pouring of all footers, piles, grade beams, and retaining walls. Some plumbing and structural steel for the slab had been installed. When Petitioner, Lanzendorf, received a letter from Respondent, construction of his home was 80-90 percent complete and over $460,000 had been expended.
It was not economically or legally feasible for Petitioners to stop construction of their homes when they received the letters issued by Respondent in April, 1987. Petitioners had already expended substantial sums on construction of their homes, and it is improbable that the lending institutions would have allowed construction to stop.
The caveats contained in the letters issued by Respondent in April, 1987, were not timely under the circumstances and should have been issued prior to the beginning of construction rather than after substantial construction occurred. Notwithstanding its caveats, Respondent recommended approval of Petitioners' applications after Petitioners demonstrated that vulnerability to a
15 year RISE, but the Governor and Cabinet denied the application.
Direct And Cumulative Impacts On The Beach-Dune System
The proposed bulkhead, existing armoring, and proposed similar structures will have no significant adverse direct or cumulative impact on the beach-dune system within the meaning of Section 161.053(5)(a)3. The proposed bulkhead, existing armoring, and proposed similar structures will neither degrade the beach-dune system along that segment of the shoreline nor threaten the beach-dune system and its recovery potential within the meaning of Rule 16B- 33.005(7).
Construction
Construction of the bulkhead will not adversely affect the stability of the dune and will not damage vegetation seaward of the sheet piles. The sheet piles will be placed 10-15 feet landward of the dune bluff line and landward of the vegetation line. All construction will take place landward of the sheet piles.
Excavation required to construct the proposed bulkhead is minimal. No excavation is required for placement of the tie rods in front of the Machata home. Only minor excavation is required for the deadman in front of the Machata home.
The seaward and landward faces of the deadman will be covered with sand and not exposed except for a portion of the deadman in front of the Lanzendorf home. Due to dune elevation differences at the Lanzendorf home, a portion of the landward face of the deadman will be exposed.
After removal of the forms used for the cap, tie rods, and deadman, the area between the sheet pile wall and the deadman will be filled with sand to bring the area up to a finish grade of 17.5 feet N.G.V.D. 29/ Any sand excavated to construct the bulkhead will be kept on site and used to build the grade to finish grade.
The area between the sheet pile wall and deadman will be planted with native vegetation following placement of the sand. Impacts to dune vegetation landward of the steel wall will be temporary. Planted vegetation will provide protection to the dune from windblown erosion within one growing season. By the second growing season, planted vegetation will be of sufficient density to eliminate the initial impacts of construction.
Before construction begins, Petitioners will place beach compatible sand at a 2:1 slope along the entire frontal dune escarpment within the limits of their property lines. The sand will provide additional stability for the dune during construction of the bulkhead and is consistent with the dune restoration plan required as a condition of the permit.
The dune restoration plan requires Petitioners to place sand and vegetation in prescribed areas within 90 days of completion of construction. Dune restoration is a standard condition required by Respondent for the issuance of armoring permits.
Natural Fluctuation Of The Beach-Dune System
The beach-dune system is a balanced, interrelated system in a constant state of fluctuation. Natural erosion and accretion of sediment takes place as a result of coastal winds, waves, tides, and storms. Features of the beach-dune system are subject to cyclical and dynamic emergence, destruction, and reemergence. 30/ The beach-dune system cyclically accretes and erodes as a result of both storm impacts and seasonal changes.
During storm events, elevated water conditions carry storm waves inland. Sediment from upland property is eroded. Storm waves carry the eroded material offshore and form an offshore sand bar. The sand bar protects the upland portion of the beach-dune system by tripping incoming waves, causing them to break offshore, and reducing the wave attack on the shoreline.
Recovery of the upland portion of the beach-dune system occurs when a milder wave climate returns after a storm. Material from the sand bar is carried back to the upland property by normal wave activity. After the sand is deposited on shore, it is carried upland by wind, trapped by dune vegetation, and the dune previously eroded by the storm is rebuilt.
In addition to storm events, seasonal changes cause fluctuations in the beach-dune system. The shoreline typically accretes during the summer when milder waves occur and erodes during the winter when wave action intensifies. When summer returns, the shoreline again accretes.
Active Erosion From Armoring
Erosion may be passive or active. Passive erosion occurs when the shoreline migrates landward during the natural fluctuation of erosion and accretion. Passive erosion is not an impact of the proposed bulkhead.
The proposed bulkhead excludes sand landward of the bulkhead from the natural fluctuation of the beach-dune system. The proposed bulkhead will prevent the loss of sand landward of the bulkhead during storm events with a return interval of 25 years or less. Sand landward of the proposed bulkhead will be released into the beach-dune system in the event of a storm with a return interval of at least 25 years and sufficient force to destroy the proposed bulkhead.
The proposed bulkhead will not cause erosion of the beach-dune system during storms with return intervals of less than 25 years unless the bulkhead is exposed and interacts with wave forces. The proposed bulkhead is located 10-15 feet landward of the dune bluff line and, therefore, will not initially be exposed to wave forces.
The current annual rate of shoreline erosion near Petitioners' homes is 1.7 feet. At that rate of erosion, the proposed bulkhead would be exposed to wave action in approximately five to ten years in the absence of any mitigating action by Petitioners. If erosion of the shoreline exposes the proposed bulkhead to wave action, active erosion in the form of "scour" and "downdrift" may occur.
Scour
Scour would be caused by the interaction of the steel wall with storm tides and waves. 31/ Scour associated with a seawall is greater due to increased wave velocity caused by reflection of the wave energy off the seawall. Scour may occur during a storm event in front of the exposed bulkhead.
Sand lost to scour will move immediately offshore in front of the bulkhead, as part of the sand bar, and eventually be returned to the shore during the recovery of the beach-dune system. A portion of the scoured sand will be diverted from the sand bar by longshore currents during the storm and redistributed within the littoral system.
Downdrift
Downdrift erosion occurs when longshore sediment is not transported from updrift to downdrift properties. When downdrift erosion occurs, downdrift properties are deprived of sand that otherwise would be transported from updrift properties.
Downdrift erosion may occur if the shoreline retreats landward of the proposed bulkhead, the bulkhead protrudes onto the active beach, and interacts with waves. If all of those circumstances occur, the proposed bulkhead will trap sand on the updrift side of the bulkhead and deprive downdrift properties of sand to the extent of any sand trapped on the updrift side.
Downdrift erosion, if any, caused by the proposed bulkhead will be limited to the dune area of the beach and will not result in a loss of sand to the beach-dune system. The amount of decrease in sand on the downdrift side of the proposed bulkhead will equal the amount of increase in sand to the updrift location.
Renourishment
There are several million cubic yards of sand in the littoral system in Indian River County. Any sand eroded at the location of the proposed bulkhead will be insignificant in comparison to the total amount of sand in the littoral system.
Current natural erosion of the shoreline fronting Petitioners' homes causes a significantly greater volume of sand loss than may be caused in the localized area of the proposed bulkhead. Government devices in the region, including the Sebastian Inlet, cause significantly greater erosion to the shoreline in Indian River County than any erosion which may occur from the proposed bulkhead.
Petitioners will place sand on the beach to offset or mitigate the sand retention features of the proposed bulkhead. Sand placement will be sufficient to offset any adverse impacts from scour erosion and downdrift erosion. Sand placement is common in Indian River County after storm events.
Petitioners will conduct yearly shoreline profile surveys and maintain the shoreline profile in front of the proposed bulkhead through annual sand placement. Sand placement effectively mitigates any direct and cumulative adverse impacts from the proposed bulkhead.
The beach profile adjacent to Petitioners' homes showed some recovery of the shoreline in the two year period around 1990. That recovery would not have been prevented by the proposed bulkhead.
Proposed Similar Structures
Proposed similar structures, within the meaning of Section 161.053(5)(a)3 and Rule 16B-33.005(7), include similar armoring under construction, pending applications for similar armoring, and similar structures that may reasonably be expected in the future. No additional armoring is under construction "along that segment of the shoreline." 32/ No pending applications are exempt from the 1990 policy, under review, approved, or vested along that segment of the shoreline. The 1990 policy prohibits all armoring within the Archie Carr National Wildlife Refuge and requires qualifying structures outside the Refuge to be vulnerable to a five year return interval storm event. Accordingly, no similar projects may reasonably be expected in the future.
Respondent prepared a cumulative impact analysis for the proposed bulkhead in support of its recommendation for approval of the permit. That original cumulative impact analysis concludes that there is no potential for increased armoring within one mile north or south of the proposed project site. Respondent's original cumulative impact analysis is credible and persuasive.
Revised Cumulative Impact Analysis
Respondent prepared a revised cumulative impact analysis for the formal hearing. Respondent attempted to define proposed similar structures to include, not only similar armoring under construction and pending applications for similar armoring, but also future armoring that may occur if approval of Petitioners' application creates a precedent for armoring similarly situated properties. Respondent assessed the cumulative impact on the beach-dune system from such potential future armoring and attributed the potential impact entirely to the proposed bulkhead. In addition, Respondent expanded the definition of "that segment of the shoreline" in Rule 16B- 33.005(7) from a two mile segment of shoreline in its original analysis to an 18 mile segment in its revised analysis. 33/
Respondent evaluated a five region area beginning from a point south of Vero Beach in Indian River County and running north to a point south of Melbourne in Brevard County. Region 1 contains the proposed project site and is slightly south of midway in the area evaluated. 34/ Region 2 is immediately south of Region 1. Region 3 is immediately south of Region 2. Region 4 is immediately north of Region 1, and Region 5 is north of Region 4. The area evaluated excludes a portion of state-owned shoreline between Regions 4 and 5, including the Sebastian Inlet State Park. 35/
The shoreline within the boundaries of the five regions is 21.5 miles or 113,520 feet. Excluding the state-owned shoreline between Regions 4 and 5, the shoreline evaluated within the five region area totals 92,000 feet or 18 miles. The length of the proposed bulkhead is 303 feet.
Respondent determined that there are 87 major habitable structures similarly situated to Petitioners' homes and that 9.8 percent of the shoreline in the area evaluated will be armored. Respondent determined that approval of Petitioners' application would increase armoring by: 280 feet in Region 1; 3,260 feet in Region 2; 4,145 feet in Region 3; 850 feet in Region 4; and 2,510 feet in Region 5.
Respondent's cumulative impact analysis is not a valid application of the cumulative impact doctrine. The cumulative impact doctrine requires Respondent to consider the ". . . cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future." 36/ (emphasis supplied) Assuming arguendo that all 87 structures are "similarly situated" with Petitioners' property, armoring of all 87 structures can not reasonably be expected in the future.
Respondent did not apply the 1990 policy in its cumulative impact assessment for the proposed project. Regions 1, 2, 4, and 5 are within the Archie Carr National Wildlife Refuge. The 1990 policy prohibits all coastal armoring within the Refuge. If the Governor and Cabinet require compliance with the 1990 policy, the proposed project will not create a precedent for armoring within Regions 1, 2, 4, and 5. Any armoring that occurs will be a result of
non-adherence to the 1990 policy rather than an impact of the proposed project.
Respondent did not apply the 1990 policy to qualifying structures outside the Archie Carr National Wildlife Refuge in Region 3. There are no armoring applications pending for any of the 87 structures identified by Respondent in its cumulative impact assessment, and no applications for any of those structures were complete on or before August 14, 1990. Unlike the proposed project, none of the 87 structures identified by Respondent are exempt from the 1990 policy. More than half of the 87 structures would not be vulnerable to a five year RISE under the 1990 policy.
The terms of the permit for the proposed project provide that the permit does not create a precedent for armoring similarly situated structures. Permits issued by Respondent for new structures seaward of the CCCL include a caveat that a particular permit may not be considered as precedent for future applications by similarly threatened structures.
Even if Respondent's determination is accepted on its face, a 9.8 percent increase in coastal armoring will not create a significant adverse impact on the beach-dune system. Moreover, several considerations suggest that Respondent's cumulative impact analysis is exaggerated.
Respondent has promulgated no criteria in any rule to establish the length of shoreline or the number or size of the regions that must be included in any cumulative impact analysis. Rule 16B-33.005(7) requires that the cumulative impact of the proposed bulkhead must be assessed "along that segment of the shoreline." The prescribed segment of shoreline was expanded from 2 miles, in Respondent's original cumulative impact analysis, to 18 miles in Respondent's revised cumulative impact analysis. 37/
During the formal hearing, Respondent suggested several alternatives for determining the segment of shoreline that should be evaluated in assessing the adverse cumulative impact of the proposed project. Alternatives included: the same general area of the applicants' property; the local area; the entire east coast; the limits of the undeveloped portion of the shoreline on either side of the proposed structure; Vero Beach to the south; two miles on either side of the proposed bulkhead; the coastal cell; the area between two major areas of armoring; areas with similar processes; anywhere on the coast; a two mile segment of shoreline; the area in close proximity; and more areas other than the regions actually used by Respondent in its cumulative impact analysis.
In the revised cumulative impact analysis, Respondent included the entire width of the shoreline within the property boundary for each of the structures. Respondent does not allow armoring to extend the entire shoreline of the property on which the armoring device is located.
The 87 structures identified by Respondent are not similarly situated to Petitioners' homes. Respondent defined similarly situated structures as those located at a distance from the vegetation line that is similar to the distance between Petitioners' homes and the bluff line. Such a definition fails to take into account actual site conditions for a particular structure.
Respondent relied solely on aerial photographs of the five region area to determine the distance between the vegetation line and each of the 87 structures. Aerial photographs provide only an approximation of the distance between the structure and the vegetation line. Respondent did not physically verify distances under actual site conditions ("ground truth").
If Respondent had ground truthed its cumulative impact analysis, site specific variations in the beach-dune system would significantly reduce potential armoring projected by Respondent. By not ground truthing actual site conditions for the 87 structures, Respondent failed to identify those structures that are not vulnerable to a five year return interval storm event due to enhanced dune viability. Respondent could not consider whether the beach-dune system at a particular site provided a structure with more protection due to: greater dune height; the condition of the shoreline; and the viability of the beach-dune system.
If the foregoing considerations are taken into account, only 860 feet of shoreline in the five region area, or 0.8 percent, is subject to potential armoring. The impact on the beach-dune system of armoring 0.8 percent of the coastline in the five region area is inconsequential and will not have a significant adverse cumulative impact.
It is unlikely that coastal armoring structures will be placed on publicly owned land. The State of Florida owns approximately 11,400 feet, or 22 percent, of the shoreline in the Archie Carr National Wildlife Refuge. The Refuge is within the State of Florida Archie Carr Conservation and Recreational Lands ("CARL") Project. The Refuge is ranked 7th on the 1992 CARL priority list. The priority ranking assigned to the Refuge means that Respondent has sufficient funds to acquire properties within the CARL project.
Respondent has $10 million a year for the acquisition of land within the Archie Carr CARL project. Respondent could purchase the entire 9.5 miles of coastline in six years.
Respondent has already purchased four parcels within the Archie Carr CARL Project totalling 29.88 acres. Respondent is actively negotiating with property owners and continuing to purchase land within the Archie Carr CARL Project. On October 22, 1991, the Governor and Cabinet authorized the purchase of 7.28 acres of land within the Archie Carr CARL Project.
The United States Fish and Wildlife Service is also acquiring property in the Archie Carr National Wildlife Refuge. Congress appropriated $2 million in 1991 and $1.5 million in 1992 for the acquisition of such property.
At the formal hearing, Respondent claimed that it would have to be 100 percent certain that no additional permits for armoring would be issued as a result of the proposed bulkhead in order for there to be no cumulative impact. As a practical matter, such a standard has the effect of a complete ban on all armoring and is clearly more restrictive than the 1990 policy from which the proposed bulkhead is exempt. Applicable statutes and rules do not authorize such a ban. Such a ban contravenes, not only existing statutes and rules, but also the express exemption granted by the Governor and Cabinet.
Direct And Cumulative Impacts On Marine Turtles
Florida has the second highest incidence of marine turtle nesting in the world. Loggerhead, green, and leatherback turtles currently nest on Florida beaches. Green turtles are endangered species while leatherbacks and loggerheads are threatened species.
Respondent conducts yearly surveys of marine turtle nesting beaches and compiles the information in nesting summary reports. Nesting densities for each species are generally expressed as nests laid per kilometer of shoreline.
Actual leatherback nests surveyed from Canaveral to Key Biscayne totaled 114 in 1991. One was located in the Canaveral National Seashore area. Another 44 and 32 were located on Hutchinson Island and Jupiter Island, respectively. Three nests were located in Boca Raton. Four nests were located in Broward County. Thirty nests were located in the Juno/Jupiter area. 38/
It is improbable that leatherback turtles will nest on the beach-dune system in front of Petitioners' homes. No leatherback turtles have ever been found on the beach in front of Petitioners' homes. Nesting densities for leatherback turtles are greater in St. Lucie, Martin, and Palm Beach counties than leatherback nesting densities in Indian River County.
The Wabasso Beach survey area covers eight kilometers and includes the proposed project site. 39/ Wabasso Beach is not a significant nesting area for leatherback turtles.
Nesting densities for leatherback turtles in Wabasso Beach are very low. Only one leatherback nested along the eight kilometers in Wabasso Beach in 1989, resulting in a nesting density of 0.125. There were no nests in 1990.
The nesting density in 1991 was 0.62. The number of leatherback turtles that may be found in front of Petitioners' homes, expressed as a percentage of 1991 nesting density for Wabasso Beach, is 0.006.
Wabasso Beach is not a significant nesting area for green turtles. In 1990, 2,055 green turtle nests were laid on the beaches from Canaveral to Key Biscayne. Wabasso Beach ranked fourth in nesting quality behind Jupiter Island, Brevard County, and Juno Beach.
The likelihood of a green turtle nesting in front of Petitioners' homes is low to very low. Green turtle nesting densities for Wabasso Beach from 1989-1991 were as follows: 14 nests or 1.75 nests per kilometer in 1989; 55 nests or 6.9 nests per kilometer for 1990; and 7 nests or 0.87 nests per kilometer in 1991. Expressed as a percentage of nesting density for Wabasso Beach, the number of a green turtle nests to be found in front of Petitioners' homes was 0.0175 in 1989, 0.069 in 1990, and 0.0087 in 1991. 40/
Wabasso Beach is not a significant nesting area for loggerhead turtles. In 1990, 55,935 loggerhead nests were laid on the beaches from Canaveral to Key Biscayne. Wabasso Beach ranked fourth in nesting density behind Jupiter Island, Juno Beach, and south Brevard County. The nesting density for loggerhead turtles in Jupiter Island and south Brevard County, respectively, was five and two times greater than the nesting density in Wabasso Beach. Loggerhead nesting densities for Wabasso Beach from 1989-1991 were as follows: 1,256 nests or 157 nests per kilometer in 1989; 1,155 nests or 144.4 nests per kilometer for 1990; and 1,758 nests or 219.7 nests per kilometer in 1991.
Even though Wabasso Beach is not a significant nesting area for loggerheads, it is likely that loggerhead turtles will nest on the beach-dune system in front of Petitioners' homes. Eleven loggerhead nests were laid on the beach in front of Petitioners' homes in 1990. On average, 13.2 loggerhead nests are laid in front of Petitioners' homes each season.
Even if all of the green turtle and loggerhead nests laid in front of Petitioners' homes are destroyed as a result of the proposed project, that unlikely loss would not have a significant adverse impact on the total population of green and loggerhead turtles. Based on the number of nests and the number of times a female nests each season, there are 750 to 1,000 female green turtles and 20,000 to 25,000 female loggerhead turtles in the area between Canaveral and Key Biscayne. The loss of anywhere from 0.0087 to 0.069 green turtle nests and the loss of 13.2 loggerhead turtle nests would be insignificant compared to the overall turtle population for each species. The number of loggerhead nests destroyed in front of Petitioners' home, for example, would be 0.00009 percent of the total nests laid in Florida.
Nesting data indicates an upward trend for both green turtles and loggerheads. The proposed bulkhead will not have an adverse impact on the upward trend for either species.
Marine turtles do not nest landward of the dune bluff- line or vegetation line. The proposed bulkhead is located landward of the dune bluff line and landward of the vegetation line. Construction activities will not take place in the area of the beach where turtles nest and will not occur during the nesting season. Construction activities will not adversely affect the dune, will not cause damage to the dune, and will not destabilize the dune.
False Crawls
Adverse impacts on marine turtles from the proposed bulkhead, if any, will not occur unless erosion of the dune is so extensive that the proposed bulkhead is exposed. Even an exposed bulkhead will not have an adverse impact on marine turtles if a dry sandy area in the mid to high beach seaward of the bulkhead is available for nesting.
If a nesting turtle encounters an exposed bulkhead, she probably will not nest at that site. She will likely return to the ocean, move up or down the beach, find a more suitable nesting area, and make her nest. This process is referred to as a false crawl.
A turtle that false crawls at the site of the proposed bulkhead will not have far to go to nest at an unarmored site. The proposed bulkhead is only
303 feet long. The 1990 policy adopted by the Governor and Cabinet prohibits all armoring in the Archie Carr National Wildlife Refuge.
Marine turtles frequently false crawl for reasons that are not completely understood. False crawls that occur when the bulkhead is exposed, if any, may not be attributable to the exposed bulkhead.
A false crawl is not an abnormal event for marine turtles and is not necessarily harmful to them. Loggerheads may false crawl 50 percent of the time. In Wabasso Beach in 1990, there were 1,114 false crawls associated with 1,155 nests laid. Even on undisturbed beaches, the percentage of false crawls is as high as 50 percent.
Marine turtles can successfully nest on the beach in front of the proposed bulkhead. Turtles have a long history of nesting in front of armoring structures in the Town of Jupiter Beach. Since March, 1989, turtle nests have been laid in front of the partial rock revetment at the toe of the dune escarpment along the shoreline fronting the Machata home. There is no evidence that these nests have not been successful. The percentage of false crawls in front of Petitioners' homes has been similar to false crawls on the rest of Wabasso Beach.
Marine turtles sometimes emerge at low tide and nest below that portion of the beach inundated by high tide. Such nests are destroyed by the ensuing high tide. Waves and storm action commonly destroy turtle nests even on undeveloped and unarmored beaches. Racoon predation is a significant cause of turtle hatchling and egg mortality. Predation poses a considerably greater threat to eggs and hatchlings than does the proposed bulkhead. Exposed roots at the dune escarpment in front of Petitioners' homes may cause false crawls in the absence of the proposed bulkhead.
Natal Beach
Marine turtles return to their natal beach to nest. The proposed bulkhead will not adversely affect the ability of marine turtles to return to their natal beach. Female turtles return to a geographic area to nest. They do not return to the specific beach where they are hatched.
Female turtles may nest on widely disparate beaches. One loggerhead that nested in the Carolinas also nested in Melbourne Beach. No tagged hatchling has ever returned to the specific beach where it was hatched.
There is no agreement among experts on a precise length of beach that comprises a natal beach. However, the length of the proposed bulkhead is considerably smaller than the beach area encompassed by any definition of a natal beach. A turtle that returns to its natal beach and encounters an exposed bulkhead in front of Petitioners' homes can nest in another portion of its natal beach with no adverse impact from the bulkhead.
Nest Relocation
Marine turtles can be protected from adverse impacts of the proposed bulkhead through nest relocation. Nest relocation has a high success rate. Relocated nests attain hatchling success similar to that enjoyed by natural nests. In some cases, the hatchling success of relocated nests is greater than that of natural nests.
Respondent routinely permits the relocation of large numbers of turtle nests. Thousands of nests have been relocated for threatened inundation, beach renourishment projects, beach cleaning, in heavy use areas, where lighting is a threat, and for research activities.
In 1988, Respondent authorized the relocation of 199 loggerhead turtle nests in Brevard County for use in hatchling disorientation studies. More recently, Respondent allowed the Rosenstiel School at the University of Miami to relocate 10 nests to study the affect of sand on hatch success of loggerhead turtles. In 1990, Respondent issued permits allowing the relocation of 857 loggerhead turtle nests, containing 94,322 eggs, that were laid on portions of the beach in the City of Boca Raton, Jupiter Beach, Volusia County, Manalipan, and Daytona Beach.
While Respondent has issued permits authorizing governmental agencies to relocate many thousands of turtle nests, Respondent maintains that it does not issue permits authorizing private parties to relocate turtle nests. However, Respondent's Division of Marine Resources has approved nest relocation as part of a sea turtle protection plan in the coastal armoring permit for Suntide Condominium.
Petitioners have provided reasonable assurances that nesting turtles and their hatchlings will be protected. Petitioners have agreed to a number of permit conditions including the following:
implementation of a sea turtle protection plan;
implementation of a dune restoration plan within 90 days of the date the proposed bulkhead is completed;
removal of the bulkhead once the bluff line recedes to the landward limit of either return wall;
locating the bulkhead as far landward as practicable;
placement of sand at a 2:1 slope along the entire dune escarpment adjacent to the
bulkhead to enhance the stability of the dune; and
yearly restoration of the beach profile fronting the bulkhead if surveys indicate that the profile has eroded.
Relocation of turtle nests as an element of the sea turtle protection plan and the absence of any significant adverse direct or cumulative impacts provide reasonable assurances that nesting turtles, their hatchlings, and their habitat will be protected within the meaning of Sections 161.053(5)(c) and 370.12, and that the proposed project will not result in a "take" within the meaning of Section 370.12(1)(c)1.
Other Considerations: Imminent Collapse; Public Access; And Local
Requirements
Petitioners' homes are not within the zone of imminent collapse within the meaning of Federal Emergency Management Agency ("FEMA") rules. The state is not qualified to issue certificates of imminent collapse under Section 1306(c) of the National Flood Insurance Act, as amended.
Special permit conditions recommended by Respondent assure public access in the event erosion of the beach results in little or no dry sandy beach for access between the water and the proposed bulkhead. Petitioners are required to provide written evidence that a restrictive notice has been provided in the deeds and covenants and restrictions and recorded with the Clerk of the Court for Martin County.
The restrictive notice must provide for a perpetual public access easement across the entire shore parallel width Petitioners' property. The easement must provide appropriate means of access and egress and allow passage along the shoreline. Clearly designated signs advising the public of the easement must be appropriately placed on Petitioners' property. Respondent typically requires applicants to grant public access easements when Respondent issues an armoring permit that may interfere with public beach access.
The existing rock revetment in front of Petitioners' homes satisfies local requirements regarding setback requirements or zoning or building codes. Respondent may condition its approval of the proposed bulkhead upon receipt of written evidence that the proposed bulkhead will not contravene local requirements. Respondent has done so in connection with an earlier application by CTP Realty, Inc. (a/k/a Pishock) for a coastal armoring permit in the same region as the proposed project.
Only Feasible Alternative
Once Petitioners have clearly justified the necessity for the proposed bulkhead and shown that the direct and cumulative impacts clearly justify the proposed bulkhead, Petitioners' must demonstrate that the proposed bulkhead is the only feasible alternative. Alternatives asserted by Respondent in this proceeding include: "do nothing"; sand placement; and home relocation.
Do Nothing And Sand Placement
Respondent asserts that Petitioners should do nothing and rely on the existing dune for protection against high frequency storms. The "do nothing" alternative is not technically feasible.
The existing dune does not provide the necessary protection for Petitioners' homes. The receding bluff line, eroding shoreline, and threat from high frequency storms expose Petitioners' homes to a high level of risk.
Respondent also asserts that Petitioners should restore the existing beach profile through sand placement. Sand placement that provides a level of protection equivalent to the proposed bulkhead is not economically feasible. Sand placement at that level would require the placement of sand at a rate of
1.7 to 2.0 cubic feet per foot of shoreline for one half mile on either side of Petitioners' homes and in front of the proposed bulkhead. Due to the eroding nature of the shoreline, sand placement would need to occur more than once a year and would be economically prohibitive.
Relocation: Technical Feasibility
It is not technically feasible to relocate the Machata home. The structural design of the Machata home is unique. It has a 35 foot clear story from the finish floor up to a major ridge beam that supports the entire roof structure. The ridge beam bears on a bearing wall at its south end and the vertical standing fireplace at its north end.
The fireplace in the Machata home is a two story, 38 foot high structure. It is the main support for the entire roof system of the home. The fireplace is constructed with concrete masonry and stone veneer and weighs 250,000 pounds. The fireplace rests on a slab foundation and is supported by six to eight 25 foot long piles. The piles are an integral structural element of the fireplace. Girder trusses on the second floor are connected to both sides of the fireplace. The trusses accept the loading of the second floor framing.
The fireplace in the Machata home is cantilevered at the second floor. A cantilever beam off the fireplace supports the second story of the fireplace. The cantilevered nature of the fireplace means the fireplace is top heavy, out of balance, and out of symmetry.
In order to relocate the Machata home, it would be necessary to sever the piles from the fireplace support structure. The piles that must be severed bear the loading associated with the cantilevered nature of the fireplace. Severing those piles may cause the fireplace to collapse. If the fireplace collapses, the ridge beam will collapse, and a large portion of the home will be destroyed.
There is a wide variation in structural loading in the Machata home. Structural loading exceeds a quarter million pounds at the center of the home. Perimeter wall loads are 3,000 pounds per square foot. Interior wall loads are 1,500 pounds per square foot. Variations in structural loading prevent the home from being moved without tilting.
If the Machata home is tilted during relocation, the fireplace will tilt or move off center. Due to the cantilevered and top heavy nature of the fireplace, the center of gravity will shift from the center of the fireplace to a point outside the fireplace. A shift in the center of gravity will create bending stress on the fireplace. The fireplace is not reinforced and not designed to withstand bending forces. The fireplace may crack and break under bending forces and fail. If the fireplace fails, the ridge beam will collapse and a large portion of the home will be destroyed.
Relocation of the Machata home will alter the location of the property securing the interest of the mortgagee. Under the terms of his mortgage, Mr. Machata can not damage or substantially change his property.
Relocation: Economic Feasibility
Relocation of Petitioners' homes is not economically feasible. The direct cost of relocating the Machata home and garage is $315,000. The direct cost of relocating the Lanzendorf home is $75,000. Direct costs of relocation do not include the cost of restoration after the move.
Relocation costs include the reasonable cost of restoring Petitioners' homes to the condition they were in prior to relocation. Respondent failed to explicate a justification for not including such costs in its proposed alternative. Such costs include: rebuilding the swimming pools, patios, retaining walls, driveways, walkways, planters, terraces, and equipment enclosure walls; disconnecting, reconnecting, and refurbishing electrical, air conditioning, plumbing and septic systems; landscaping and repairing or replacing the irrigation systems; repairing or relocating fences; earthwork such as clearing and filling; constructing new foundations; and exterior and interior refinishing and reconditioning.
The cost of restoring Petitioners' homes after relocation is:
MACHATA | LANZENDORF | ||
a. Exterior demolition | 45,878 | 11,923 | |
b. Interior demolition | 12,375 | 0 | |
c. Earthwork | 88,727 | 46,033 | |
d. Concrete for retaining walls, | |||
planters, equipment enclosure | |||
walls, footings, terrace and | |||
steps | 84,909 | 5,600 | |
e. Pilings | 37,500 | 15,700 | |
f. Rebuild interior fireplace | 52,000 | 0 | |
g. Exterior refinishing | 74,770 | 10,800 | |
h. House reconditioning | 32,700 | 13,500 | |
i. Pool area | 23,500 | 26,500 | |
j. Deck drain, flashing, water | |||
proofing | 3,000 | 1,000 | |
k. Electrical | 12,665 | 8,400 | |
l. Plumbing | 12,500 | 8,500 | |
m. Air conditioning systems | 11,000 | 1,250 | |
n. Site grading, irrigation, | |||
landscaping | 33,192 | 14,000 | |
o. Driveway | 23,256 | 8,165 | |
p. Temporary shoring and | |||
structural support | 7,500 | 0 | |
q. Consulting fees | 12,500 | 3,500 | |
SUBTOTAL | 567,972 | 174,871 | |
r. Contingencies, wastes, | and | ||
unknowns | 42,597 | 13,155 | |
s. Overhead and profit | 128,217 | 39,477 | |
TOTAL | 738,786 | 227,503 | |
The cost estimates for restoration are reasonable and customary based on what a general contractor would typically submit on such a project.
The cost of restoring the Lanzendorf home after relocation is
$227,503. When this cost is added to the direct cost of relocation ($75,000), the total cost of relocating the Lanzendorf home is $302,503.
The cost of restoring the Machata home after relocation is $738,786. When this cost is added to the direct cost of relocation ($315,000), the total cost of relocating the Machata home is $1,053,786.
The patios and terraces at the Machata home are not moveable. The costs of relocating the Machata home, therefore, can not be reduced by moving the terraces rather than demolishing and rebuilding them. Estimated exterior
demolition costs of $45,878 include the cost of demolishing the terraces, planter walls, pool steps, segments of the driveway and driveway access that would have to be removed to pour concrete runways on which the home would be rolled to its new location. The cost includes trucking and disposal of the demolition material.
The pool at the Machata home can not be moved. It is a reinforced mesh, pencil rod structure, sprayed with gunite. The work reasonably necessary to relocate the Machata home and restore it to its condition prior to relocation would require the pool to be demolished and rebuilt.
The estimated cost of $37,500 for constructing a new pile foundation for the Machata home includes pilings, steel reinforcing cages, transition caps, and grade beams. The cost of constructing a new foundation would be greater if Respondent requires the new foundation to comply with the requirements of the relocated CCCL.
Estimated earthwork costs of $88,727 for the Machata home include: clearing the site; filling the site to elevate the relocated home to flood elevations required by local government and current elevation; and compacting the fill material. It would also be necessary to grade the site, redo the irrigation system, landscape the site and plant sod, and replace fences to restore the site to its condition prior to the relocation.
The air conditioning system at the Machata home is a heat exchange system that utilizes two wells. One well is an artisan well. The other is a shallow well. There are numerous connections between the air conditioning equipment and the two wells. The two wells would have to be relocated and reconnected to the air conditioning system.
The underground electrical service to the Machata home would have to be disconnected, relocated, and reconnected. Estimated costs of $12,655 include the disconnection and reconnection of all electrical equipment as well as replacement of numerous pool lights at the new location.
The Machata home can not be relocated with the fireplace intact. To assure against the structural collapse of the Machata home during relocation, the home must be properly shored. The fireplace must be disassembled and reassembled after the home is relocated. The cost of demolishing and removing the fireplace, temporarily shoring the home, and rebuilding the fireplace, including masonry reinforcement, internal duct work, structural ties, and Kentucky stone facing, is $71,875.
Competing Cost Estimates
The estimated relocation costs submitted by Intervenors' expert witness were neither credible nor persuasive. The cost estimates were based on visual observation of Petitioners' homes from an adjacent lot. The witness did not enter Petitioners' property to determine the size or quality of various appurtenances including swimming pools, driveways, tile terraces, retaining walls, and landscaping. The witness did not review structural plans for the Machata home. He was not familiar with structural characteristics of the Machata home and did not know the type of air conditioning used.
Relocation costs are based on the estimated weight of each house. Estimating the weight of a structure that exceeds 300,000 pounds is integral to a determination of the cost of relocating that structure. The Machata house weighs 1,200 tons.
Intervenors' cost estimates for moving the Machata home are based on a projected weight of 300 to 350 tons. When a structure's weight exceeds 150 tons, an accurate weight projection is integral to an accurate determination of relocation costs.
The cost estimates submitted by Intervenors are not formal bids. The cost estimates submitted by Petitioners were prepared as formal bids by an expert in marine construction engineering. The formal bids were based on engineering drawings of the bulkhead. Costs set forth in formal bids are more likely to reflect actual costs than costs set forth in a cost estimate prepared for the formal hearing.
The cost estimates submitted by Intervenors unnecessarily exaggerate the cost of the proposed bulkhead. For example, the $5,000 estimate for clearing is unnecessary because no clearing will be conducted. The mobilization/demobilization cost of $10,000 in Intervenors' estimate would actually be $2,500. The $12,000 allotted for site restoration is high and could be completed for $3,000 to $4,000. The $10,000 added for the deadman with tie rods is already included in the square foot cost submitted by Petitioners. Considering these and other examples, the total cost estimates submitted by Intervenors are exaggerated by $100,000.
The 2:1 Requirement For Economic Feasibility
Respondent applies a 2:1 requirement to assess the economic feasibility of alternatives to coastal armoring. If the cost of relocation of the upland structure or dune enhancement does not exceed the cost of the proposed armoring by 2:1, then relocation or enhancement is considered to be economically feasible.
Respondent requires compliance with the 2:1 requirement in all applications for coastal armoring, and the requirement has the direct and consistent effect of law. The 2:1 requirement is an agency statement of general applicability that implements, interprets, or prescribes policy, or imposes a requirement not included in existing statutes or rules and which has not been adopted in accordance with statutory rulemaking requirements (an "unwritten rule"). 41/
Respondent failed to explicate the reasonableness of selecting the 2:1 requirement over other means of assessing economic feasibility. Even if Respondent had justified its policy during the formal hearing, the cost of relocating Petitioners' homes is more than twice the cost of the proposed bulkhead and, therefore, is not economically feasible.
The cost of constructing the proposed bulkhead is $136,000 including all labor, materials, and necessary equipment for the bulkhead and return walls. Of the total cost, $51,000 is attributable to the portion of the bulkhead related to the Lanzendorf home and $85,000 is attributable to the portion of the bulkhead related to the Machata home. The total cost of relocating the Machata home is $1,053,777. The total cost of relocating the Lanzendorf home is
$302,464.
Agency Requirements Satisfied
Petitioners clearly justified the necessity for the proposed bulkhead in accordance with Rule 16B-33.005(1). Their homes are vulnerable to high frequency storms with return intervals as frequent as 10 to 15 years.
Computer model results demonstrate that Petitioners' homes are vulnerable to high frequency storm events with return intervals as frequent as
10 to 15 years. The input variables used in the original and EDUNE computer models were reasonably related to Respondent's existing rules, the terms of Respondent's instruction manual, Respondent's long standing practice in all coastal armoring permits since 1988, and reasonable professional judgment.
The direct or cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed bulkhead within the meaning of Section 161.053(5)(a)3. The proposed bulkhead is adequately designed and will be properly constructed within the meaning of Rule 16B-33.005(3) and 16B-33.008. The proposed bulkhead is the only feasible alternative and will be located as far landward as possible within the meaning of Rule 16B-33.005(3)(c).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. Section 120.57. The parties were duly noticed for the formal hearing.
Petitioners have the burden of proof in this proceeding. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue unless the burden is otherwise established by statute. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The burden of proof in this proceeding is not otherwise established by statute. 42/
Petitioners must demonstrate by a preponderance of evidence that they are entitled to a permit for the proposed bulkhead. J.W.C. Co., Inc., 396 So.2d at 787-788. Petitioners must: clearly justify the necessity for the proposed bulkhead; show that the direct and cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed bulkhead; and show that the proposed bulkhead is the only feasible alternative.
Rule Challenges In A Section 120.57(1) Proceeding
Petitioners assert two types of rule challenges in this proceeding. First, Petitioners challenge the validity of certain existing rules that have been adopted in accordance with statutory rulemaking requirements ("written rules"). 43/ Second, Petitioners challenge the validity of agency statements that have the effect of a rule but are not promulgated in accordance with statutory rulemaking requirements ("unwritten rules").
Petitioners claim that specified written rules contain certain terms that are vague, undefined, and without standards to guide the exercise of agency discretion. Petitioners assert that these written rules are arbitrary, capricious, and invalid. Petitioners assert that the unwritten rules are invalid because they have not been adopted in accordance with statutory rulemaking requirements and because they suffer the same infirmities as the written rules.
Jurisdiction: Written Rules
Petitioners assert that the undersigned has jurisdiction to determine the validity of a written rule in a proceeding conducted pursuant to Section 120.57(1) irrespective of whether the same rule is challenged in a consolidated proceeding filed pursuant to Section 120.56. In State ex rel. Department of General Services v. Willis, 344 So.2d 580, 592 (Fla. 1st DCA 1977), the court determined that Sections 120.54 and 120.56 are intended:
. . . to avoid any appearance of requiring a substantially affected party to initiate duplicative 120.54 or .56 proceedings if his rule challenge is regularly presented with other grievances under 120.57, resulting in final agency action and a petition for judicial review.
Willis, 344 So.2d at 592.
The quoted dicta in Willis does not necessarily stand for the proposition that the undersigned has jurisdiction to determine the merits of Petitioners rule challenge in this proceeding. Prior to 1992, a substantially affected party could petition the appropriate appellate court to review the merits of a challenge to a written rule if the rule challenge was presented in the Section 120.57(1) formal hearing. A party was not required to file a duplicative proceeding under Section 120.56 in order to preserve his or her right to appellate review. Like a challenge to the constitutionality of a statute that involved no disputed issue of material fact, 44/ the merits of a rule challenge with no factual issue could be considered for the first time by the appellate court. However, the dicta in Willis arguably can be read for the alternative proposition that the undersigned has jurisdiction to determine the merits of a rule challenge when the rule challenge involves a disputed issue of material fact. 45/
Uncertainty surrounding the dicta in Willis prevents it from rising to the level of a definite judicial construction. Therefore, the subsequent reenactment of statutes construed in Willis does not invoke the doctrine of longstanding legislative reenactment. 46/
Any reasonable doubt as to the lawful existence of a particular administrative power should be resolved in favor of arresting the further exercise of that power. Edgerton v. International Company, 89 So.2d 488 (Fla. 1956); State v. Atlantic Coast Line Railroad Company, 47 So 969 (Fla. 1908); Fraternal Order of Police, Miami Lodge v. City of Miami, 492 So.2d 1122, 1124 (Fla. 3d DCA 1986). Although hearing officers perform a quasi-judicial function, the Division of Administrative Hearings is an administrative agency. Any reasonable doubt as to jurisdiction to determine the validity of a written rule in this proceeding should be resolved in favor of constraint.
The existence of jurisdiction to determine the validity of a written rule in this proceeding does not require the exercise of that jurisdiction. Petitioner, Machata, filed a separate rule challenge pursuant to Section 120.56 which has been consolidated with this proceeding. A rule that is determined to be valid or invalid in the final order in the rule challenge proceeding is equally valid or invalid for Petitioner, Lanzendorf, even though he is not a party of record in the rule challenge. Therefore, Petitioners have an effective
remedy available to them in the consolidated proceeding under Section 120.56 and will not be prejudiced by the refusal to exercise jurisdiction over the challenge to written rules in this proceeding. To exercise jurisdiction in both proceedings would be duplicative as to Petitioner, Machata, an unnecessary adherence to form over substance for Petitioner, Lanzendorf, and a waste of quasi judicial resources.
Jurisdiction: Unwritten Rules
1992 Laws Of Florida, Chapter 92-166, Section 10, was codified in Section 120.68(15). That section provides:
No petition challenging an agency rule as an invalid exercise of delegated legislative authority shall be instituted pursuant to this section, except to review an order entered pursuant to a proceeding under s.
120.54(4) or s. 120.56 unless the sole issue presented by the petition is the constitutionality of a rule and there are no disputed issues of fact.
A final order entered pursuant to Section 120.57(1) is not enumerated as one of the exceptions to the prohibition against judicial review. The final order entered in this proceeding will dispose of Petitioners' challenge to unwritten rules. That final order does not fall within the literal context of the exceptions to the prohibition in Section 120.68(15).
The prohibition against judicial review of a final order determining the invalidity of an unwritten rule in this proceeding is repugnant to the authority in Section 120.57(1)(b)15 to challenge the validity of such a rule. The provisions in Section 120.57(1)(b)15 were enacted in 1991 Laws Of Florida, Chapter 91-30, Section 4. Section 120.57(1)(b)15 provides:
Each agency statement defined as a rule under
s. 120.52 and not adopted by the rulemaking procedure provided by s. 120.54 which is relied upon by an agency to determine the substantial interests of a party shall be subject to de novo review by a hearing officer. A statement shall not enlarge, modify, or contravene the specific provision of law implemented or otherwise exceed delegated legislative authority. The statement applied as a result of a proceeding pursuant to this subsection shall be demonstrated to be within the scope of delegated legislative authority. Recommended and final orders pursuant to this subsection shall provide an explanation of the statement that includes the evidentiary basis which supports the statement applied and a general discussion of the justification for the statement applied. 47/
The de novo review authorized in Section 120.57(1)(b)15 requires a threshold determination of whether the agency statement satisfies the definition of a rule in Section 120.52(16) and whether it is relied upon by Respondent to determine the substantial interests of Petitioners. If those two questions are answered in the affirmative, it is then necessary to determine whether the agency statement: enlarges, modifies, or contravenes the specific provision of law implemented; exceeds delegated legislative authority; or is demonstrated to be within the scope of delegated legislative authority. If the agency statement does modify the specific provision of law implemented or otherwise exceeds delegated legislative authority, it can not be applied in this proceeding. The findings and conclusions made as a result of the de novo review must be included in the hearing officer's recommended order and Respondent's final order. 48/
A determination that the legislature intended to authorize a rule challenge in Section 120.57(1)(b)15 without the right to judicial review is an absurd result. The legislature does not intend its enactments to have an absurd result. Foley v. State, 50 So.2d 179, 182 (Fla. 1951). 49/ A determination that the legislature intended Section 120.68(15) to prevent the application of Section 120.57(1)(b)15 would reduce that section to a nullity. It should never be presumed that the legislature intends an enactment to be a nullity. Sharer
v. Hotel Corporation of America, 144 So.2d 813, 817 (Fla. 1962). If the literal context of the prohibition in Section 120.68(15) conflicts with legislative intent, the literal context must yield to legislative intent. Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099, 1102 (Fla. 1989); Vildibill v. Johnson, 492 So.2d 1047, 1049 (Fla. 1986).
Section 120.68(15) is intended to eliminate jurisdiction of appellate courts to determine the invalidity of a rule in the first instance. It is not intended to eliminate judicial review of a final order determining the invalidity of an unwritten rule pursuant to Section 120.57(1). See paragraph
212 supra.
Jurisdiction to determine the validity of an unwritten rule in this proceeding does not conflict with Section 120.535. Section 120.535(8) requires that all proceedings to determine a violation of Section 120.535(1) shall be brought pursuant to Section 120.535. Section 120.535(8) does not reach Section
120.56 but is limited by its terms to Section 120.535(1). 50/
Separate provisions in Chapter 120 must be accorded significance in order to give effect to Chapter 120 as a whole. Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1980); State v. Gale Distributors,
349 So.2d 150 (Fla. 1977); Ozark Corp. v. Pattishall, 185 So 333 (Fla. 1938); Topeka Inn Management v. Pate, 414 So.2d 1184, 1186 (Fla. 1st DCA 1982). The legislature does not intend its enactment to be a nullity.
This proceeding was initiated on November 19, 1990, prior to the enactment of Section 120.57(1)(b)15. 51/ Even if Section 120.57(1)(b)15 is inapplicable, the undersigned has jurisdiction to determine the validity of an unwritten rule in this proceeding. Courts have long construed Sections 120.56 and 120.57(1) to allow challenges to unwritten rules under either section. In McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), the court stated:
. . . we have recognized the availability of an administrative remedy against any agency policy statement of general applicability which has not been adopted through
rulemaking. Section 120.56; Dep't of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA, 1977). A remedy is available also in Section 120.57 proceedings affecting a party's substantial interests. State ex rel. Dep't of Gen. Serv. v. Willis, 344 So.2d 580, 591-92 (Fla. 1st DCA 1977)
McDonald, 346 So.2d at 580.
The judicial construction of Sections 120.56 and 120.57 in Willis and McDonald has been consistently reenacted by the legislature. Subsequent reenactment of statutory provisions that have received a definite judicial construction is presumed to constitute legislative approval of the judicial construction. State ex rel. Szabo Food Services, Inc. v. Dickinson, 286 So.2d
529 (Fla. 1973); Walsingham v. State, 250 So.2d 857 (Fla. 1971); Collins Investment Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla. 1964); Advisory Opinion to Governor, 96 So.2d 541 (Fla. 1957); Depfer v. Walker, 169 So 660 (Fla. 1935); Davies v. Bossert, 449 So.2d 418 (Fla. 3d DCA 1984); Aronson v. Congregation Temple De Hirsch of Seattle, Washington, 138 So.2d 69 (Fla. 3d DCA 1962). Courts are barred from changing an earlier judicial construction when the judicial construction of the statute is presumed to have been reenacted. Deltona Corporation v. Kipnis, 194 So.2d 295 (Fla. 2d DCA 1966). Section 120.57(1)(b)15 codifies the judicial construction in McDonald, Willis, and subsequent cases.
Jurisdiction to determine the validity of an unwritten rule in this proceeding, pursuant to either Section 120.57(1)(b)15 or independent case law, serves one of the principal purposes of Chapter 120. The Florida Supreme Court has long held that a principal goal of Chapter 120 is:
. . . the abolition of "unwritten rules" by which agency employees can act with unrestrained discretion to adopt, change and enforce governmental policy. The term "rule" was broadly defined in [Chapter 120] to
reach . . . invisible policy-making.
Straughn v. O'Riordan, 338 So.2d 832, 834 n. 3 (Fla. 1976).
Adequate notice and a fair playing field are essential elements of due process and equal protection. Statutory rulemaking requirements assure due process by mandating notice of an agency's general policy statements that affect the substantial interests of regulated persons. In Amos v. Department of Health and Rehabilitative Services, District IV, 444 So.2d 43, 47 (Fla. 1st DCA 1984), the court stated:
Central to the fairness of administrative proceedings is the right of affected persons to be given the opportunity for adequate and full notice of agency activities. These persons have the right to locate precedent and have it apply, and the right to know the factual basis and policy reasons for agency action. State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977). Inconsistent results based upon
similar facts, without a reasonable explanation, [52/] violate Section 120.68(12) (b), Florida Statutes, as well as the equal protection guarantees of both the Florida and United States Constitutions. North Miami General Hospital, Inc. v. Department of Health and Rehabilitative Services, 355 So.2d 1272, 1278 (Fla. 1st DCA 1978). 53/
See also St. Johns North Utility Corp., v. Florida Public Service Commission,
549 So.2d 1066, 1069 (Fla. 1st DCA 1989) (failure of an agency to explicate inconsistent results violates Sec. 120.68(12)(b) and the equal protection guarantees of the state and federal constitutions); University Community Hospital v. Department of Health and Rehabilitative Services, 472 So.2d 756, 758 (Fla. 2d DCA 1985) (persons substantially affected by proposed agency action must be able to rely on precedents born of consistent application of policy to facts).
Unwritten Rules
Petitioners challenge three agency statements as having the effect of a rule, within the meaning of Section 120.52(16), without being promulgated in accordance with statutory rulemaking requirements. The three agency statements challenged as unwritten rules are:
the vulnerability requirement in effect prior to the 1990 policy as stated in Memorandum PM-27-90 or as otherwise applied in unwritten form; 54/
the notice of vulnerability provisions contained in the 1990 policy; 55/ and
the "2:1" economic feasibility requirement (providing that an alternative is not
feasible if the ratio of the cost of the alternative to the cost of the proposed project is equal to or greater than 2:1). 56/
Petitioners' challenge to the vulnerability provisions contained in Memorandum PM-27-90 and otherwise applied in unwritten form and Petitioners' challenge to the notice of vulnerability provisions contained in the 1990 policy are denied.
The vulnerability provisions contained in Memorandum PM-27-90 and otherwise applied in unwritten form do not satisfy the requirement of general applicability in Section 120.52(16). The vulnerability provisions were superseded by the vulnerability provisions in the 1990 policy and are applicable, if at all, only to Petitioners. 57/
It is not necessary to determine whether the notice of vulnerability provisions in the 1990 policy satisfy the test of general applicability. Petitioners are expressly exempt from the 1990 policy, and Respondent is not in fact applying the notice of vulnerability provisions to Petitioners in this proceeding. Like other provisions in the 1990 policy, the notice of vulnerability provisions are not relied upon by Respondent to determine the substantial interests of Petitioners within the meaning of Section 120.57(1)(b)15.
Respondent's 2:1 requirement for economic feasibility satisfies the definition of a rule. A rule is statutorily defined in Section 120.52(16) to include:
. . . any agency statement of general applicability that implements, interprets, or prescribes law or policy . . . and includes any requirement . . . not specifically required by statute or by an existing
rule. . . .
Respondent's 2:1 requirement is an agency statement of general applicability. It is applied by Respondent in all coastal armoring applications. The effect of agency policy, rather than the characterization, form, or appellation given to it by the agency, determines whether it is a rule. Amos, 444 So.2d at 46-47; State Department of Administration v. Harvey, 356 So.2d 323, 325 (Fla. 1st DCA 1978).
An agency statement satisfies the requirement of general applicability if it is intended by its own effect to require compliance, is consistently applied to a broad class of persons, or otherwise has the direct and consistent effect of law. Florida Public Service Commission v. Central Corporation, 551 So.2d 568, 570 (Fla. 1st DCA 1989); Friends of the Everglades, Inc., v. Department of Community Affairs, 495 So.2d 1193, 1194 n. 2 (Fla. 3d DCA 1986); Balsam v. Department of Health and Rehabilitative Services, 452 So.2d 976, 977- 978 (Fla. 1st DCA 1984); Department of Corrections v. Sumner, 447 So.2d 1388, 1390 (Fla. 1st DCA 1984); McDonald, 346 So.2d at 580; Department of Administration v. Stevens, 344 So.2d 290, 296 (Fla. 1st DCA 1977). The 2:1 requirement is intended by its own effect to require compliance, is consistently applied to all coastal armoring applications, and otherwise has the direct and consistent effect of law. 58/
An agency statement that places an interpretation upon a statute that is not readily apparent, as opposed to a statement that simply reiterates a statutory mandate, is a rule. Amos, 444 So.2d at 47; Department of Revenue v.
U.S. Sugar Corporation, 388 So.2d 596, 598 (Fla. 1st DCA 1980); Price Wise Buying Group v. Nuzum, 343 So.2d 115, 116 (Fla. 1st DCA 1977). Respondent's 2:1 requirement places an interpretation upon the specific law implemented that is not readily apparent from the terms of the statute.
The specific law implemented and existing rules contain no numerical standard for determining feasibility. While "feasible" is a general term, rather than an engineering term, technical and economic feasibility assessments are inherent in the expertise reasonably necessary to carry out the duties, obligations, powers, and responsibilities conferred on Respondent by the legislature. 59/ Within the scope of that expertise, engineers customarily employ an array of techniques to determine economic feasibility, including costs over the life of the project and many other cost-benefit analyses. However, the imposition of a specific test, to the exclusion of all other tests, 60/ places an interpretation upon the law implemented that is not readily apparent and is not a permissible statutory construction. As such, the 2:1 requirement deviates from, and is inconsistent with, the existing rule imposing a general feasibility test reasonably implied in the law implemented and the agency expertise reasonably required to administer that law. 61/ The deference granted Respondent's rulemaking authority is not absolute. 62/ The 2:1 requirement enlarges, modifies, or contravenes the specific law implemented, within the meaning of Section 120.57(1)(b)15 and earlier case law; and is an invalid
exercise of delegated legislative authority. Department of Natural Resources v. Wingfield Development Company, 581 So.2d 193 (Fla. 1st DCA 1991); Board of Trustees of the Internal Improvement Fund v. Board of Land Surveyors, 566 So.2d 1358, 1360 (Fla. 1st DCA 1990); Booker Creek Preservation, Inc. v. Southwest Florida Water Management District, 534 So.2d 419, 423 (Fla. 5th DCA 1988).
Respondent's 2:1 requirement can not be applied in this proceeding under Section 120.57(1)(b)15. In order for an agency statement to be applied in this proceeding, it:
. . . shall not . . . modify . . . the specific provision of law implemented . . . .
The statement applied as a result of a proceeding pursuant to this subsection shall be demonstrated to be within the scope of delegated legislative authority. . . .
Respondent's 2:1 requirement modifies existing statutes and rules and imposes a requirement not specifically required by statute or existing rule within the meaning of Sections 120.52(16) and 120.57(1)(b)15.
Section 120.57(1)(b)15 was enacted after this proceeding was initiated. Even if Section 120.57(1)(b)15 is not applied in this proceeding, refusal to effectuate the 2:1 requirement is consistent with relevant case law and gives significance and effect to one of the primary purposes of Chapter 120. Invalidation of unwritten rules that have not been legitimated by the statutory rulemaking process:
. . . is the necessary effect of [Chapter 120] if the prescribed rulemaking procedures are not to be atrophied by nonuse. Straughn v. O'Riordan, 338 So.2d 832, 834 (Fla. 1976)
. . . .
McDonald, 346 So.2d at 580.
A principal goal of Chapter 120 is:
. . . the abolition of "unwritten rules" by which agency employees can adopt,
change, and enforce . . . invisible policy making.
Straughn, 338 So.2d at 834 n. 3.
One of the principal purposes of Chapter 120 is:
. . . to close the gap between what the agency and its staff know about the agency's law and policy and what an outsider can know. . . .
McDonald, 346 So.2d at 580.
The requirement for statutory rulemaking procedures is reserved for agency statements of general applicability. Rulemaking requirements do not require invalidation of incipient agency policy.
. . . [Chapter 120] does not have those bizarre effects. For the Section 120.54 rulemaking procedures are imposed only on policy statements of general applicability, i.e., those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. E.g., Stevens, 344 So.2d 290. . . . (emphasis not supplied)
* * *
While [Chapter 120] thus requires rulemaking for policy statements of general applicability, it also recognizes the inevitability and desirability of refining incipient agency policy through adjudication of individual cases. (emphasis not supplied)
McDonald, 346 So.2d at 581.
Respondent's 2:1 requirement is an agency statement of general applicability and is not incipient policy. 63/
Even if Respondent's 2:1 requirement is not an agency statement of general applicability or is an agency statement of general applicability that does not exceed delegated legislative authority, Respondent failed to explicate its reasons for imposing the 2:1 requirement. The record is replete with evidence relevant to the issue of whether Petitioners satisfied the 2:1 requirement but devoid of evidence explicating either the reasonableness of the 2:1 requirement or why it is imposed to the exclusion of all other tests for feasibility. Respondent must expose and elucidate incipient policy with competent and substantial evidence admitted in the record. Agency for Health Care Administration v. Orlando Regional Healthcare System, Inc., 617 So.2d 385 (Fla. 1st DCA 1993); Health Care and Retirement Corporation of America, Inc. v. Department of Health and Rehabilitative Services, 559 So.2d 665, 668 (Fla. 1st DCA 1990); E.M. Watkins & Company v. Board of Regents, 414 So.2d 583, 588 (Fla. 1st DCA 1982); Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177, 1182 (Fla. 1st DCA 1981); McDonald, 346 So.2d at 580-582. 64/ In Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So.2d at 380, 383 (Fla. 1st DCA 1985), the court refused to effectuate a financial feasibility standard that was not explicated by the state agency.
Even if Respondent's 2:1 requirement is applied in this proceeding, the proposed bulkhead is the only feasible alternative. The cost of relocating each home would exceed the proportionate cost of the proposed bulkhead by more than 2:1.
Entitlement To A Permit
Respondent has authority under Section 161.053(5)(a) to issue a permit for construction of the proposed bulkhead upon consideration of all of the relevant facts and circumstances including:
. . . Adequate engineering data concerning shoreline stability and storm tides related to shoreline topography;
. . . Design features of the proposed structures or activities; and
. . . Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon [the] beach- dune system, which, in the opinion of [Respondent], clearly justify such a permit.
Respondent is authorized in Sections 161.053(5)(b)-(f) to impose conditions on the proposed permit including those determined to be necessary to protect sea turtles, assure public access, assure the adequacy of design and construction, and mitigation or other reasonable assurances for compliance with permit conditions.
The legislature has found in relevant part that the beaches and dunes in Florida:
. . . 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, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access.
Section 161.053(1)(a). 65/
Rule 16B-33.005(1) provides in relevant part that activities seaward of the CCCL shall be limited and:
. . . the necessity of such development, construction or alteration shall be stated and clearly justified by the applicant. (emphasis supplied)
Substantially similar language appears in Rule 16B-33.007(7). Petitioners stated and clearly justified the necessity for the proposed bulkhead within the meaning of Rules 16B-33.005(1) and 16B-33.007(7).
Computer models using inputs based on competent and reasonable professional judgment persuasively demonstrated that the eroded profile of high frequency storms with return intervals of 10 to 15 years will reach the foundations of Petitioners' homes. Petitioners homes are exposed to the hydrodynamic forces associated with such storms and are vulnerable to such high
frequency storms within the meaning of Respondent's incipient policy interpreting Rule 16B-33.005(1) prior to the 1990 policy. 66/
Rule 16B-33.005(3)(c) provides in relevant part:
In those cases in which a rigid coastal protection structure is the only feasible means of protecting an existing habitable major structure . . . , then that rigid coastal protection structure shall be located as far landward as possible, consistent with design and construction requirements. (emphasis supplied)
The proposed bulkhead is the only feasible means of protecting Petitioners' homes. The "do nothing" alternative leaves Petitioners' homes unprotected. Sand placement is not economically feasible. Relocation of Petitioners' homes is neither technically nor economically feasible.
Rule 16B-33.005(3)(g) provides in relevant part:
Any proposed rigid coastal protection structure shall be designed to minimize erosive and scour effects. Where justified and properly designed and constructed, they will provide some measure of protection for upland structures. . . . (emphasis supplied)
The direct and cumulative impacts on the beach-dune system and on marine turtles clearly justify the proposed bulkhead. The proposed bulkhead has been designed to minimize erosive and scour effects. The proposed bulkhead is properly designed and will be properly constructed within the meaning of Rule 16B- 33.005(3)(g) and 16B-33.008.
The necessity for the proposed bulkhead is clearly justified in accordance with Section 161.053(1)(a) and Rules 16B- 33.005(1) and 16B- 33.007)(7). The direct and cumulative impacts on the beach-dune system and marine turtles are clearly justified within the meaning of Section 161.053(5)(a)3 and applicable rules. Petitioners demonstrated that the proposed bulkhead is the only feasible alternative under Rule 16B-33.005(3)(c).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioners'
application for a coastal armoring permit subject to conditions stated by Respondent on the record and imposed by the terms of this Recommended Order.
DONE AND ENTERED this 16th day of February 1994, in Tallahassee, Florida.
DANIEL MANRY
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488
Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1994.
ENDNOTES
1/ All chapter and statute references are to Florida Statutes (1993) unless otherwise stated.
2/ All references to rules are to those published in the Florida Administrative Code on the date of this Recommended Order. All references to proposed rules are to proposed rules set forth in Respondent's Exhibit No. 73. Under Proposed Rule 16B-33.00525(1)(c), each home is an "eligible structure."
3/ Petitioners homes comply with all local building codes and requirements. The reference to nonconforming foundations refers to Rule 16B-33.007(4)(c). That rule provides that a habitable structure is constructed on a conforming foundation when the structure is:
. . . elevated on, and securely anchored to, an adequate pile foundation in such a manner as to locate the building support structure above the design breaking wave crests or wave uprush as superimposed on the storm surge with dynamic wave setup of a one- hundred- year storm. . . .
Proposed Rule 16B-33.007(4)(b) retains the former language and adds:
. . . The design breaking wave crest or wave uprush shall be the greater of three feet or the depth of water at the front edge of the structure for a one-hundred-year storm.
The nonconforming characteristics of the foundations are generally discussed in para. 7 infra.
4/ The legislature requires Respondent to establish a CCCL in each county. The legislature intends for Respondent to:
. . . establish coastal construction control lines on a county basis along the sand beaches of the state fronting the
Atlantic Ocean . . . . so as to define that portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions.
Sec. 161.053(1)(a).
The CCCL may be established in each county only after a comprehensive engineering study and topographic survey are conducted and a determination is made that establishment of a CCCL is necessary for the protection of upland properties and the control of beach erosion. Sec. 161.053(2).
5/ All numeric values in this Recommended Order are approximate.
6/ Storm force may be measured either by storm surge elevation or by erosive force. The storm surge and erosive force of an actual storm may be disproportionate to each other. The need for standards in determining storm force is discussed in paras. 74-80 infra.
7/ The notice of vulnerability caveat is discussed in paras. 83- 88 infra.
8/ Compare Rules 16B-33.005(3)(b) and (c). Respondent's rules generally allow for the construction of coastal armoring in areas where other armoring exists and the proposed armoring closes a gap in existing armoring. The proposed bulkhead is a continuous structure across two contiguous parcels. It neither closes a gap nor creates a gap.
9/ Rule 16B-33.005(7) defines a "significant cumulative impact" as one which results in:
. . . the general degradation of the beach or dune system along that segment of the shoreline . . . . [or one that will] . . . threaten the beach or dune system or its recovery potential following a major storm event. . . .
Compare Proposed Rule 16B-33.002(43). Sec. 161.053(5)(b)-(f) includes provisions pertaining to sea turtles.
10/ Conservancy, Inc. v. A. Vernon Allen Builder, Inc., 580 So.2d 772, 777-778 (Fla. 1st DCA 1991).
11/ Cf. Conservancy, Inc., 580 So.2d at 777-778.
Compare the language of Sec. 403.919, which was at issue in Conservancy, Inc.:
Equitable distribution - The department, in deciding whether to grant or deny a permit
. . . shall consider:
The impact of the project for which the permit is sought.
The impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought.
The impact of projects which are under review, approved, or vested pursuant to s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations.
with Sec. 161.053(5)(a)3. which requires Respondent to consider:
. . . potential cumulative effects of any
proposed structures or activities upon [the] beach-dune system, which, in the opinion of the [Respondent], clearly justify such a permit. (emphasis supplied)
Compare Rule 16B-33.005(1) with Rule 16B-33.005(3)(g).
12/ Proposed Rule 16B-33.002(34) states that the term "feasible" describes:
. . . an act which is technically possible to accomplish with current technology, or is economically viable when compared to alternative strategies to protect a structure. . . . (emphasis supplied)
The requirement for technical or economic feasibility is stated in the disjunctive rather than the conjunctive. Based on the plain and unambiguous meaning of the disjunctive test, an act that is economically feasible but not technically feasible is nevertheless "feasible."
13/ The Governor and Cabinet take final agency action. If no written policy has been promulgated on a particular subject or if written policy is silent with respect to a particular subject and no explication of final agency action is given, the policy being applied, if any, must be determined, if at all, from all of the surrounding facts and circumstances.
14/ Memorandum PM-27-90 was issued to provide guidance to agency personnel in assessing vulnerability requirements for coastal armoring permits. Respondent argues in its Proposed Final Order that PM-27-90 is an "internal management memorandum" that is excepted from the statutory definition of a rule pursuant to Sec. 120.52(16)(a). That argument is specifically rejected. PM-27-90 was not applied solely within the agency issuing the memorandum. Rather, PM-27-90 provided guidance for the purpose of determining the private interests of all applicants for coastal armoring permits. See Amos v. Department of Health and Rehabilitative Services, 444 So.2d 43, 45-47 (Fla. 1st DCA 1983) (holding that an agency memorandum designed to guide agency personnel in the removal of certain persons from their homes was not an internal management memorandum entitled to exemption under Sec. 120.52(16)(a) but was a rule which determined the private interests of persons regulated by the agency). While PM-27-90 was superseded by the 1990 policy, Respondent's requirements to clearly justify the necessity for coastal armoring with computer results that are verifiable on Respondent's computer system and to comply with the 2:1 requirement survive in unwritten form today irrespective of the their original form. Agency policy can be implemented, interpreted, or prescribed, within the meaning of Sec.
120.52(16), in written form or in practice. Statutory rulemaking requirements do not turn on the characterization of an agency statement by the agency. Id. See para. 82 in infra.
15/ Respondent must explicate its incipient policy by exposing, elucidating, and explaining that policy with competent and substantial evidence admitted in the record. Agency for Health Care Administration v. Orlando Regional Health Care System, Inc., 617 So.2d 385 (Fla. 1st DCA 1993); Health Care and Retirement Corporation of America, Inc. v. Department of Health and Rehabilitative Services, 559 So.2d 665, 668 (Fla. 1st DCA 1990); St. Francis Hospital v.
Department of Health and Rehabilitative Services, 553 So.2d 1351, 1354 (Fla. 1st DCA 1989); E.M. Watkins & Company v. Board of Regents, 414 So.2d 583, 588 (Fla. 1st DCA 1982); Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177, 1182 (Fla. 1st DCA 1981; McDonald v. Department of Banking and Finance, 346 So.2d 569, 581-582 (Fla. 1st DCA 1977).
16/ The emergence of this policy is reflected in Proposed Rule 16B-33.00525(2). That rule states that Respondent's policy is to issue coastal armoring permits only as a "last resort." The rule further provides that coastal armoring permits will not be issued unless inter alia a qualifying structure is vulnerable to a five year RISE. Rule 16B-33.00525(2)(a)2.
17/ Respondent must explicate its incipient policy by exposing, elucidating, and explaining that policy with competent and substantial evidence admitted in the record. Orlando Regional Health Care System, Inc., 617 So.2d 385; Health Care and Retirement Corporation of America, Inc., 559 So.2d at 668; St. Francis Hospital, 553 So.2d at 1354; E.M. Watkins & Company, 414 So.2d at 588; Anheuser- Busch, Inc., 393 So.2d at 1182; McDonald, 346 So.2d at 581-582. Prior to 1984, Sec. 120.68(12)(b) contained language authorizing an agency to deviate from an existing rule if the deviation was explicated in the record of the administrative hearing. Since 1984, that language has been deleted so that no deviation is authorized irrespective of agency's explication on the record.
18/ Storm surge and erosive force in an actual storm may not be proportional. Storm force measured in a computer model may emphasize storm surge or erosive force. To the extent a computer model emphasizes erosive force over storm surge, it may have the effect of assessing vulnerability for coastal armoring by a standard that is different from the one emphasized in applicable statutes and rules. Design criteria for foundations and armoring devices are assessed by emphasizing storm surge. See discussion in para. 81 infra. However, emerging policy assesses vulnerability in terms of both storm surge and sediment characteristics. See Proposed Rule 16B-33.005(12)(b). The emergence of additional criteria assessed in terms of sediment characteristics raises the specter of assessing design and vulnerability requirements by disparate criteria. Respondent failed to explicate this aspect of using computer models to assess vulnerability.
19/ In form, Respondent neither asserts that the Dean erosion model is the only computer model that may be used to assess vulnerability nor explicates the reasonableness of such a requirement. In substance, however, Respondent requires the results of other computer models to be "verified" by replication in the Dean model. See para. 82 infra.
20/ Id.
21/ The Thanksgiving Day storm caused 13 cubic yards of erosion per linear foot.
22/ The importance of site specific data and a storm surge hydrograph in assessing vulnerability is underscored in Respondent's proposed rules. Proposed Rule 16B-33.00525(2)(a)2 provides, inter alia, that vulnerability is to be determined by an analysis of site specific physiographic features including a "storm surge hydrograph and duration."
23/ Section 161.053(1)(a) provides in relevant part that the CCCL is intended to:
. . . define that portion of the beach-dune system which is subject to . . . a 100-year storm surge, storm waves, or other predictable weather conditions. (emphasis supplied).
Compare Proposed Rule 16B-33.005(3) which states that the function of the CCCL is to define that portion of the beach and dune system subject to severe fluctuations based on a 100 year storm surge.
24/ Rule 16B-33.007(6)(b) provides in relevant part: Design considerations for rigid coastal . . . protection structures shall include structural . . . components as impacted by waves superimposed upon the design storm surge . . . . [and] . . . should be designed for the minimum wave loads which are applicable for the design storm conditions which justify the structures. Seawalls . . . are generally designed for a 20-to-50-year storm event. . . . (emphasis supplied)
25/ Rule 16B-33.007(4)(c) provides in relevant part: All habitable major structures shall be elevated on, and securely anchored to, an adequate pile foundation in such a manner as to locate the building support structure above the design breaking wave crests or wave uprush as superimposed on the storm surge with dynamic wave setup of a one-hundred-year storm. . . . (emphasis supplied)
Proposed Rule 16B-33.007(4)(b) adds the following language:
. . . The design breaking wave crest or wave uprush shall be the greater of three feet or the depth limited breaking wave based on the maximum predicted depth of water at the front edge of the structure for a one- hundred-year storm.
26/ Rule 16B-33.007(4)(h) requires the structure's design to include:
. . . maximum water pressure resulting from a fully peaked, breaking wave superimposed on
the design storm surge with dynamic wave setup.
Rule 16B-33.007(4)(i) requires structural design to include:
. . . maximum water pressures resulting from the motion of the water mass associated with a one-hundred-year storm event.
27/ Respondent's deviation from storm surge criteria is illuminated in Proposed Rule 16B-33.005(12)(b) which requires an eligible structure to be vulnerable to a five year RISE based on an analysis of:
. . . general and site specific physiographic features or conditions such as . . . sediment and wave characteristics. (emphasis
supplied)
28/ Former Rule 16B-33.002(56) was not held to be an invalid exercise of delegated legislative authority until after the site inspection. Department of Natural Resources v. Wingfield Development Company, 581 So.2d 193 (Fla. 1st DCA 1991). See Rule 16B-33.004 for a determination of when a structure is under construction.
29/ The term "N.G.V.D." is defined in Rule 16B-33.002(36) as:
. . . National Geodetic Vertical Datum as established by the National Ocean Survey (formerly called "mean sea level datum, 1929).
30/ Island Harbor Beach Club, Ltd. v. Department of Natural Resources, 495 So.2d 209 (Fla. 1st DCA 1986).
31/ See Rule 16B-33.002(15) defining erosion to include scour. 32/ Rule 16B-33.005(7).
33/ In Proposed Rule 16B-33.002(43)(b), the phrase "along that segment of the shoreline" has been replaced with "other coastal properties in the same general area."
34/ The proposed bulkhead in Region 1 is 48,000 feet, or eight miles, north of the southern boundary of the area evaluated.
35/ Sebastian Inlet is a significant cause of erosion for the coastline in Indian River County.
36/ Cf. Conservancy, Inc., 580 So.2d at 778.
37/ Proposed Rule 16B-33.005(43)(b) defines cumulative impacts as:
. . . impacts resulting from individual construction which, if permitted as a general practice on other coastal properties in the same general area, or if added to the adverse impacts from existing construction are expected to result in an adverse impact. (emphasis supplied)
38/ Nesting densities and total nests must be projected on the basis of the size of the area surveyed and the actual number of nests surveyed.
39/ The Wabasso Beach area extends from the south boundary of the Sebastian Inlet State Park to a point north of State Road 510.
40/ Evidence concerning nesting densities and population projections was provided in the testimony of Mr. Phillip Wittham. The parties stipulated that Mr. Wittham is an expert in sea turtles and sea turtle biology.
41/ Proposed Rule 16B-33.005(34) states that an act is "feasible" if:
. . . the cost of dune enhancement, or modification or relocation of a structure to be protected is no more than twice the cost of the proposed protection structure. . . .
(emphasis supplied)
A proposed rule which takes effect after commencement of the formal hearing may be considered for the purpose of determining whether the same policy in
unwritten form has general applicability within the meaning of Sec. 120.52(16). Cf. Baptist Hospital, Inc. v. State, Department of Health and Rehabilitative Services, 500 So.2d 620, 625 (Fla. 1st DCA 1987); Turro, M.D. v. Department of Health and Rehabilitative Services, 458 So.2d 345, 346 (Fla. 1st DCA 1984).
42/ Statutory language in Sec. 120.57(10)(b)15 places the burden of proving that an agency statement is within the scope of delegated legislative authority on the agency attempting to apply the statement in an action brought pursuant to Sec. 120.57(1). For reasons stated in the Final Order and not repeated in this Recommended Order, the burden of proof is on Petitioners to prove the invalidity of agency statements Respondent seeks to apply in this proceeding. See para.
109 in the Final Order.
43/ The same agency statements and existing rules are challenged in this proceeding and in a separate action filed pursuant to Secs. 120.535 and 120.56. See DOAH Case No. 93-0604RU consolidated in this proceeding pursuant to the stipulation of the parties.
44/ Carrolwood State Bank v. Lewis, 362 So.2d 110, 113-114 (Fla. 1st DCA 1978); Department of Environmental Regulation v. Leon County, 344 So.2d 298 (Fla. 1st DCA 1977).
45/ Sec. 120.57(1) applies whenever there is a disputed issue of material fact. Sec. 120.56(1) provides:
Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. (emphasis supplied)
The alternative proposition for Willis asserts that the term "may" authorizes, but does not require, substantially affected parties to bring challenges to written rules under Sec. 120.56. Terms within a statute should be given their plain and unambiguous meaning. Citizens of the State of Florida v.Public Service Commission, 435 So.2d 784 (Fla. 1983); Thayer v. State, 335 So.2d 815
(Fla. 1976).
Substantially affected parties arguably have a choice of remedies under Secs. 120.56 and 120.57(1). Sec. 120.56 is the "more powerful remedy." Maher, S., Administrative Procedure Act Amendments: The 1991 and 1992 Amendments To The Florida Administrative Procedure Act, 20 Fla. St. U. L. Rev. 367, 402 (1992) [hereinafter, Maher, Amendments]. Final order authority in Sec. 120.56 precludes an agency from substituting its judgment for that of a hearing officer who finds that the agency's rule is invalid. The "de novo" review required in Sec. 120.57(1)(b)15 may be an attempt to limit the ability of an agency to modify the findings of fact in a rule challenge under Sec. 120.57(1). Maher, Amendments at 407 ("prohibiting an agency from substituting its judgment . . . make[s] it less necessary to file a rule challenge on the issue of delegated legislative authority to protect substantial interests"). See also A.W.Lee, Jr.
v. State, Department of Transportation, 596 So.2d 802, 804 (Fla. 1st DCA 1992) citing Willis, 344 So.2d at 592 and St. Joe Paper Co. v. Department of Natural Resources, 536 So.2d 1119, 1122 (Fla. 1st DCA 1988) (a party may timely file a challenge to a written rule either by filing a Sec. 120.56 proceeding or by arguing the rule's invalidity during the evidentiary hearing). Seven years after the decision in Willis, Sec. 120.68(12) was amended to delete language that had authorized agency action inconsistent with an existing rule if the inconsistent action was explicated. After Sec. 120.68(12) was amended, an
agency that adopts a recommended order finding a written rule to be an invalid exercise of delegated legislative authority may be taking action inconsistent with an existing rule in violation of Sec. 120.68(12)(b).
46/ The subsequent reenactment of statutory provisions that have received a definite judicial construction is presumed to constitute legislative approval of the judicial construction. State ex rel. Szabo Food Services, Inc. v.
Dickinson, 286 So.2d 529 (Fla. 1973); Walsingham v. State, 250 So.2d 857 (Fla. 1971); Collins Investment Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla. 1964); Advisory Opinion to Governor, 96 So.2d 541 (Fla. 1957); Depfer v. Walker,
169 So 660 (Fla. 1935); Davies v. Bossert, 449 So.2d 418 (Fla. 3d DCA 1984); Aronson v. Congregation Temple De Hirsch of Seattle, Washington, 138 So.2d 69 (Fla. 3d DCA 1962). Courts are barred from changing an earlier judicial construction when the judicial construction of the statute is presumed to have been reenacted. Deltona Corporation v. Kipnis, 194 So.2d 295 (Fla. 2d DCA 1966).
47/ The prohibition in Sec. 120.68(15) limits the authority of a substantially affected party to seek review of a final order entered in the underlying proceeding irrespective of whether the underlying proceeding was initiated prior to the effective date of the statutory prohibition. The right to seek review of a final order does not arise until the final order is entered at the conclusion of the underlying proceeding. Authority to seek review of the final order entered in these consolidated proceedings will be prohibited at the time that the final order becomes subject to judicial review.
48/ Compare Sec. 120.535(8).
49/ Sec. 120.68(1) provides that, "A party who is adversely affected by final agency action is entitled to judicial review." The interplay between Secs.
120.52(16), 120.68(15), and 120.57(1)(b)15 creates conflict in Ch. 120. See Maher, Amendments at 367-371. For example, an unpromulgated agency statement that satisfies the definition of a rule in Sec. 120.52(16) is an unwritten rule that "shall be demonstrated to be within the scope of delegated legislative authority" in order to be "applied" under Sec. 120.57(1)(b)15. (emphasis supplied) If a recommended order determines that an unwritten rule is a valid exercise of delegated legislative authority and applies the rule, Sec.
120.68(15) deprives a substantially affected party who has not filed a duplicative action under Sec. 120.56 from obtaining judicial review of the recommended order. See Maher, Amendments at 432. To avoid that result, Sec. 120.57(1)(b)15 may implicitly require the filing of a duplicative proceeding under Sec. 120.56. However, such an implicit requirement renders Sec.
120.57(1)(b)15 a nullity because that is the law under Secs. 120.68(15) and
120.56 in the absence of Sec. 120.57(1)(b)15. The legislature is presumed not to intend its enactments to be a nullity. Villery, 396 So.2d 1107; Gale Distributors, 349 So.2d 150; Pattishall, 185 So 633; Topeka Inn Management, 414 So.2d 1184. By omitting any reference to Sec. 120.535, Sec. 120.68(15) does not prohibit judicial review of a final order entered pursuant to Sec. 120.535.
Sec. 120.535 does not authorize a determination of invalidity. The repeal of Sec. 120.68(15) has been suggested for other reasons. Maher, Amendments at 431- 435.
50/ The interplay between Sec. 120.57(1)(b)15 and 120.535 is discussed in Maher, Amendments at 399-407.
51/ Sec. 120.57(1)(b)15 is part procedural and part substantive. It is procedural to the extent it codifies earlier case law holding that a party can challenge an unwritten rule in a Sec. 120.57(1) proceeding. To that extent, Sec. 120.57(1)(b)15 does not create, modify, expand, or otherwise alter substantive rights in existence prior to its enactment. The right to challenge an unwritten rule was always available under either Sec. 120.56 or 120.57(1).
See McDonald, 346 So.2d at 580; Willis, 344 So.2d at 591-592; para. 221 supra. The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard. Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla. 1990). However, a statute is presumed to change the earlier case law where the statute is so repugnant to the common law that the two cannot coexist. Id. Sec. 120.57(1)(b)15 is substantive to the extent it authorizes an agency to explicate an unwritten rule in a Sec. 120.57(1) proceeding. While agencies have always been authorized to apply and explicate incipient policy, invalidation of unwritten rules has been the necessary result under Ch. 120 if statutory rulemaking requirements are not to be atrophied by nonuse. McDonald, 346 So.2d at 580; paras. 235-236 infra. Authority to apply and explicate "lawful" unwritten rules are new rights not available to an agency prior to the enactment of Sec. 120.57(1)(b)15. See McDonald, 346 So.2d at 580-
581 and paras. 235-236 infra. See also n. 62 infra. Thus, Sec. 120.57(1)(b)15 may be applied retroactively to the extent it permits Petitioners to challenge an unwritten rule but can not be applied retroactively to the extent it authorizes Respondent to apply and explicate an agency statement of general applicability within the meaning of Sec. 120.52(16).
52/ Authority to deviate from a written rule was repealed by the legislature in 1984 by an amendment to Sec. 120.68(12). No deviation is statutorily authorized irrespective of the explication for such a deviation in the formal hearing. See
n. 63, infra.
53/ Statutory rulemaking requirements serve both due process and equal protection goals. Statutory rulemaking requirements are intended to place the due process requirement of adequate notice on the state agency initiating action that affects the substantial interests of regulated persons based, in whole or in part, upon policy statements of general applicability. Sec. 120.57(1)(b)15 does not require an agency to provide substantially affected parties with notice of an unwritten rule prior to the moment of explication in the formal hearing.
While discovery affords a substantially affected party possessing adequate funding and competent legal counsel with the means of obtaining notice prior to explication, Sec. 120.57(1)(b)15 effectively shifts the economic and legal onus of that notice to all substantially affected parties regardless of their financial means and legal sophistication. Ch. 120 is intended to provide easy and fair access to the administrative process for all persons substantially affected by proposed agency action.
The ability of an agency to apply an unwritten rule upon explication frustrates the goal of eliminating unwritten rules. Statutory rulemaking requirements are not limited to unwise agency statements of general applicability that cannot be explicated in an administrative hearing. The legislature does not intend its enactments to have such an absurd result. If an unwritten rule is applied in an administrative proceeding because the wisdom or efficacy of the rule is explicated, Sec. 120.57(1)(b)15 will effectuate: unwritten rules or invisible policy-making; a gap between what agency staff know and what the public knows; and the ability of agency employees to act with unrestrained discretion to adopt, change, and enforce governmental policy. Cf. Straughn, 338 So.2d at 834 n. 3.
54/ See discussion at paras. 49-81 supra. Petitioners' challenge to Respondent's vulnerability criteria, in the proceeding under Sec. 120.57(1), challenges the imposition of a specific RISE as an unexplicated deviation from Respondent's existing policy, but does not challenge as an unwritten rule either Respondent's imposition of a specific RISE or Respondent's requirement that vulnerability to a specific RISE be demonstrated using computer model results verified on the Dean erosion model. Compare paras. 59-60 with para. 82 supra.
However, Petitioners do challenge the pretermitted items as unwritten rules in the actions instituted pursuant to Secs. 120.56 and 120.535. The merits of the pretermitted issues are addressed in the Final Order issued on even date herewith.
55/ See discussion at paras. 82-88 supra. 56/ See discussion at paras. 199-202 supra.
57/ The 1990 policy expressly exempted applications filed on or before August 14, 1990. Petitioners' application is the only application exempt by the terms of the 1990 policy.
58/ Credible and persuasive evidence presented during the formal hearing established the general applicability of the 2:1 requirement. In addition, Proposed Rule 16B-33.005(34) states that economic viability:
. . . means that the cost of dune enhancement, or modification or relocation of a structure to be protected is no more than twice the cost of the proposed protection structure or other alternative. . . .
(emphasis supplied)
A proposed rule may be considered for the purpose of determining whether the same policy in unwritten form has general applicability within the meaning of Sec. 120.52(16). Cf. Baptist Hospital,, 500 So.2d at 625; Turro, 458 So.2d 346.
59/ Expert testimony presented by all of the parties during the formal hearing established that technical and economic feasibility are inherent in the expertise required by the enabling legislation. See, e.g., Section 370.021(1); Wingfield Development Company, 581 So.2d at 197. Technical feasibility is reasonably related to: the requirement in Section 161.053(5) for Respondent to consider engineering data, design features, and potential environmental impacts; and the requirement in Respondent's written rules for assessment of hydrostatic and hydrodynamic loads during storm surge. See discussion in para. 81 supra.
Unlike technical feasibility, economic feasibility is readily expanded beyond the scope of the expertise reasonably required to carry out the duties of the enabling legislation. See n. 64 infra.
60/ Credible and persuasive evidence presented during the formal hearing demonstrates that the 2:1 requirement does not create a rebuttable presumption but establishes an exclusive definition of economic viability. In addition, Proposed Rule 16B-33.002(34) provides:
. . . Economically viable . . . means that the cost of dune enhancement, or modification or relocation of a structure to be protected is no more than twice the cost of the proposed protection structure or other alternatives.
61/ Sec. 120.57(1)(b)15 must be limited by Sec. 120.68(12)(b) prohibiting agency action that is inconsistent with an existing rule. Otherwise, Sec. 120.57(1)(b)15 permits an agency to deviate from a written rule, in violation of Sec. 120.68(12), if the deviation itself is an unwritten rule that is within the scope of delegated legislative authority and is explicated in an administrative hearing.
Prior to 1984 Sec. 120.68(12) permitted an agency to deviate from its existing rule if the deviation was explicated during the administrative hearing. "Other incentives" for rulemaking were judicially recognized in the requirement for state agencies to repeatedly explicate their unwritten rules in administrative hearings. Barker v. Board of Medical Examiners, 428 So.2d 720, 722 (Fla. 1st DCA 1983); Department of Highway Safety and Motor Vehicles v.
Florida Police Benevolent Association, 400 So.2d 1302, 1304 (Fla. 1st DCA 1981) (holding that attempts to label agency action as either a rule or non-rule policy have been largely discarded). Over the years it became clear that this judicially recognized incentive was not "equal to the task." Maher, Amendments, at 374. In 1984, language authorizing a deviation from an existing rule upon explication was deleted from Sec. 120.68(12). Since then, cases have generally invalidated agency action to enforce unpromulgated rules. Florida Public Service Corporation v. Central Corporation, 551 So.2d 568, 570 (Fla. 1st DCA 1989); Department of Corrections v. Piccirillo, 474 So.2d 1199, 1202 (Fla. 1st
DCA 1985); Department of Corrections v. Holland, 469 So.2d 166, 167 (Fla. 1st
DCA 1985); Department of Corrections v. Adams, 458 So.2d 355, 356-357 (Fla. 1st DCA 1984). But see St. Francis Hospital, Inc., v. Department of Health and Rehabilitative Services, 553 So.2d 1351, 1354 (Fla. 1st DCA 1989) (an agency may deviate from an existing rule if the deviation is explicated). Other cases upheld explicated agency statements found to be incipient policy that did not satisfy the requirement for general applicability within the meaning of Sec.
120.52(16). Friends of the Everglades, Inc. v. Department of Community Affairs,
495 So.2d 1193, 1194 n. 2 (Fla. 3d DCA 1986); C.H. Barco Contracting Co. v. State, Department of Transportation, 483 So.2d 796 (Fla. 1st DCA 1986); White Advertising International v. State, Department of Transportation, 368 So.2d 411 (Fla. 1st DCA 1979). Failure to limit Sec. 120.57(1)(b)15 by the terms of Sec. 120.68(12)(b) would resurrect the judicial recognition of "other incentives" proven by experience to be inadequate and already rejected by the legislature. A substantive rule, such as Proposed Rule 16B-33.002(34), can not be applied retroactively to adversely affect the substantive rights of Petitioners. Cf. Baptist Hospital, Inc. v. State, Department of Health and Rehabilitative Services, 500 So.2d 620, 625 (Fla. 1st DCA 1987); Turro, M.D. v. Department of Health and Rehabilitative Services, 458 So.2d 345, 346 (Fla. 1st DCA 1984).
62/ The 2:1 requirement enunciated by Respondent during the formal hearing and set forth in Proposed Rule 16B-33.002(34) excludes:
. . . costs related to ineligible structures, or costs associated with overhead, contingencies, remodeling or landscaping. (emphasis supplied)
Evidence in the formal hearing and the disjunctive form of the quoted language shows that Respondent excludes overhead, contingencies, remodeling, or landscaping for eligible structures. Credible and persuasive expert testimony at the formal hearing concluded that it is unreasonable to exclude such costs from a feasibility analysis. See discussion at paras. 183-193 supra. The exclusion of reasonable costs associated with the relocation of an eligible structure involves the exercise of discretion not reasonably necessary to carry out the duties, obligations, powers, and responsibilities conferred on Respondent by the legislature. Such an exclusion should be made, if at all, by the legislature.
63/ Incipient policy is an agency policy statement that is not generally applicable within the meaning of Sec. 120.52(16). An unwritten rule is an agency policy statement of general applicability that has not been formally adopted in accordance with statutory rulemaking requirements.
64/ Respondent also failed to explicate its deviation from the requirement in Rule 16B-33.007(6)(b) that the minimum wave loads for the design storm condition justifying the proposed bulkhead should be consistent with the design life of the proposed bulkhead. Sec. 120.68(12)(b) proscribes any agency action that is inconsistent with an existing rule, and applicable case law requires any deviation from incipient policy to be explicated. Orlando Regional Healthcare Systems, Inc., 617 So.2d 385.
65/ Respondent has promulgated proposed rules that address some of the issues in this proceeding. Many of the proposed rules would affect the substantial interests of Petitioners and can not be applied to this proceeding. Board of County Commissioners of Jackson County v. International Union of Operating Engineers, Local 653, et al., 620 So.2d 1062 (Fla. 1st DCA 1993); York v. State, ex rel. Schwaid, 10 So.2d 813, 815 (Fla. 1943); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974); State, Department of Agriculture & Consumer Services v. Strickland,
262 So.2d 893 (Fla. 1st DCA 1972); Cf. Department of Agriculture and Consumer Services v. Bonanno, 568 So.2d 24 (Fla. 1990); McCord v. Smith, 43 So.2d 704 (Fla. 1950); Hamilton v. Williams, 200 So 80 (Fla. 1941); Senfeld v. Bank of Nova Scotia Trust Co. Ltd., 450 So.2d 1157, 1164, 1165 (Fla. 3d DCA 1984); Dewberry v. Auto- Owners Ins. Co., 363 So.2d 1077 (Fla. 1978); Heberle v. P.R.O. Liquidating Co., 186 So.2d 280, 282 (Fla. 1st DCA 1966). A "procedural" rule which takes effect after commencement of a formal hearing generally may be considered in recommending final agency action. Baptist Hospital, 500 So.2d at 625; Turro, 458 So.2d at 346. Application of procedural rules generally do not have a substantive effect. None of the proposed rules may be applied in this proceeding to the extent they effectuate provisions in the 1990 policy without violating the exemption from the Governor and Cabinet.
66/ The emergence of different standards for assessing design and vulnerability is problematic. Design criteria for foundations and armoring devices have been historically assessed in terms of storm surge. See discussion in para. 81 supra. However, emerging policy assesses vulnerability in terms of both storm surge and sediment characteristics. See Proposed Rule 16B- 33.005(12)(b).
Under such disparate standards, a home that is subject to the force of a storm surge may not be "vulnerable" to the same storm because "vulnerability" is assessed on the basis of sediment characteristics or erosive force.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-8074 and 90-8075
Petitioners' Proposed Findings of Fact. 1.-25. Accepted in substance
26.27. Rejected as irrelevant and immaterial 28.-38. Accepted in substance
39. Rejected as not supported by credible and persuasive evidence
40.-43. Accepted in substance
44. Rejected as irrelevant and immaterial 45.-68. Accepted in substance
69.-71. Rejected as conclusions of law, argumentative, and the province of the trier of fact
72.-140. Accepted in substance
141.-147. Rejected as irrelevant an immaterial
148. Rejected as recited testimony 149.-157. Accepted in substance
158. Rejected as recited testimony 159.-192. Accepted in substance
193. Rejected as speculative and not supported by competent and substantial evidence
194. | Rejected | as | irrelevant | and | immaterial |
195. | Accepted | in | substance | ||
196. | Rejected | as | irrelevant | and | immaterial |
197.-216. | Accepted | in | substance | ||
217. | Rejected | as | irrelevant | and | immaterial |
218.-373. | Accepted | in | substance | ||
374.-379. | Rejected | as | irrelevant | and | immaterial |
380.-446. | Accepted | in | substance | ||
447.-453. | Rejected | as | irrelevant | and | immaterial |
454. | Accepted | in | substance |
Respondents' Proposed Findings of Fact. 1.-3. Accepted in substance
4. Rejected as irrelevant and immaterial 5.-13. Accepted in substance
14. Rejected as conclusion of law 15.-24. Accepted in substance
25. Rejected as not supported by credible and persuasive evidence. See PM-27-90. Respondent's actions may also evidence agency policy
26.-32. Accepted in substance
33. Rejected as to the characterization and significance 34.-39. Accepted in substance
40. Rejected in part as unsupported by credible and persuasive evidence. The Governor and Cabinet rejected the agenda item without explanation
41.-45. Accepted in substance
46.-47. Rejected as not supported by credible and persuasive evidence
48.-52. Accepted in substance
Rejected as not supported by credible and persuasive evidence. Compare proposed findings paras. 65 and 66.
Rejected as irrelevant and immaterial 55.-62. Accepted in substance
63.-64. Accepted in part (that an armoring structure interrupts the process) and rejected in part (that it has direct and long term adverse impacts) as not supported by credible and persuasive evidence
Accepted in substance
Rejected as not supported by credible and persuasive evidence
67.-68. Rejected as not supported by competent and substantial evidence
69. Accepted in substance
70.-79. Rejected as unsupported by credible and persuasive evidence
80.-81. Accepted in substance
82.-83. Rejected as recited testimony 84.-87. Accepted in substance
88.-89. Rejected as irrelevant and immaterial
Accepted in substance
Rejected as irrelevant and immaterial 92.-93. Accepted in substance
Rejected as not supported by credible and persuasive evidence
Accepted in substance
Rejected as not supported by credible and persuasive evidence and that the use of the term "appear" makes the proposed finding immaterial
97.-98. Rejected as irrelevant and immaterial when considered in light of the 1990 policy and not supported by credible and persuasive evidence
99. Rejected as recited testimony
100.-101. Rejected as irrelevant and immaterial 102.-104. Accepted in substance
105. Rejected as not supported by credible and persuasive evidence
106.-119. Accepted in substance
120.-121. Rejected as not supported by credible and persuasive evidence
122. Rejected as recited testimony
123.-124. Rejected as not supported by credible and persuasive evidence
125.-132. Accepted in substance
133.-141. Rejected as irrelevant and immaterial and not supported by credible and persuasive evidence
142.-143. Accepted in substance
Rejected as irrelevant and immaterial
Accepted in substance
Rejected as speculative, excludes other causes, and, therefore irrelevant and immaterial. See proposed finding 148.
147. | Rejected | as | not supported by credible | and | persuasive |
evidence | |||||
148. | Accepted | in | substance | ||
149.-150. | Rejected | as | not supported by credible | and | persuasive |
evidence | |||||
151. | Rejected | as | recited testimony | ||
152. | Rejected | as | irrelevant and immaterial | ||
153.-154. | Accepted | in | substance | ||
155.-159. | Rejected | as | not supported by credible | and | persuasive |
evidence | |||||
160.-166. | Accepted | in | substance | ||
167. | Rejected | as | not supported by credible | and | persuasive |
evidence | |||||
168.-174. | Accepted | in | substance | ||
175.-178. | Rejected | as | irrelevant and immaterial | ||
179. | Rejected | as | not supported by credible | and | persuasive |
evidence | |||||
180.-187. | Accepted | in | substance | ||
188. | Rejected | as | not supported by credible | and | persuasive |
evidence | |||||
189.-196. | Accepted | in | substance |
197.-204. 205.-230. | Rejected as irrelevant and immaterial to a proceeding under Section 120.57(1). It is addressed in the final order in the rule challenge Accepted in substance | ||||||
231. | Rejected as irrelevant and immaterial | ||||||
232.-235. | Accepted in substance | ||||||
236. 237.-240. | Rejected evidence Accepted | as in | not supported substance | by | credible | and | persuasive |
241. 242.-249. | Rejected evidence Accepted | as in | not supported substance | by | credible | and | persuasive |
250. | Rejected evidence | as | not supported | by | credible | and | persuasive |
Intervenors' Proposed Findings Of Fact.
1.-2. Accepted in substance
Accepted in part and rejected in part as irrelevant and immaterial
Accepted in substance
Rejected as not supported by credible and persuasive evidence
Accepted in substance
Rejected as irrelevant and immaterial 8.-9. Accepted in substance but not motive
10. Rejected as irrelevant and immaterial
11.-13. Accepted in part and rejected in part as not supported by credible and persuasive evidence
14.-28. Rejected as not supported by credible and persuasive evidence
29. Rejected as to the effect of the photographs and otherwise accepted in substance
30.-32. Rejected as not supported by credible and persuasive evidence
33.-34. Accepted in substance
35. Rejected as not supported by credible and persuasive evidence
COPIES FURNISHED:
Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Kenneth Plante, Esquire General Counsel
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Thomas G. Tomasello, Esquire Oertel, Hoffman, Fernandez & Cole Post Office Box 6507
Tallahassee, Florida 32314-6507
Dana M. Wiehle
Assistant General Counsel
Department of Environmental Protection 2600 Blair Stone Road
Mail Station 35
Tallahassee, Florida 32399
David G. Guest, Esquire Kenneth B. Wright, Esquire Sierra Club Legal Defense Fund Post Office Box 1329 Tallahassee, Florida 32302
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Nov. 09, 1995 | Case files have been transfered to the agency. dh |
| Nov. 08, 1995 | Csae files returned to Agency this date. |
| Apr. 05, 1994 | Final Order W/Exhibits A-D filed. |
| Mar. 31, 1994 | Order Denying Motion to Vacate Stay sent out. |
| Mar. 28, 1994 | (Petitioners) Notice of Hearing; Petitioners' Motion to Vocate Stay filed. |
| Feb. 16, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held May 11-15, 1992 and February 22-27, 1993 and April 14-16, 1993. |
| Feb. 16, 1994 | Order of Consolidation sent out. (Consolidated cases are: 90-8074, 90-8075 |
| Feb. 16, 1994 | Case No/s 90-8074, 90-8075, 93-604RU: unconsolidated. |
| Sep. 15, 1993 | Petitioner's Response to Department of Environmental Protection's Motion for Official Recognition filed. |
| Sep. 13, 1993 | Department of Environmental Protections' Motion for Official Recognition w/Exhibits A&B filed. |
| Sep. 07, 1993 | Petitioner's Response to Intervenors' Notice of Compliance and Request for Hearing filed. |
| Aug. 31, 1993 | Intervenors' Notice of Compliance With 120.535 and Request for a Hearing filed. |
| Aug. 17, 1993 | Letter to Accurate Reporter, Inc. from Pat Burdette (re: Notificationof Changes to Stenographer) filed. |
| Aug. 16, 1993 | (Petitioners) Proposed Final Order; Proposed Recommended Order filed. |
| Aug. 16, 1993 | Intervenors' Notice of Filing Proposed Final Order in Petitioner's Section 120.535 Challenge; Intervenors' Proposed Final Order in Petitioner's 120.535 Chanllenge filed. |
| Aug. 16, 1993 | Intervenors' Notice of Filing Proposed Recommneded Order in Petitioners' Section 120.57 Challenge; Intervenors' Proposed Recommended Order;Intervenors' Notice of Filing Proposed Final Order in Petitioner's Section 120.56 Challenge ; Intervenors' Propose |
| Aug. 16, 1993 | Respondent Department of Environmental Protections' Proposed Final Order; Respondent Department of Environmental Protections' Proposed Recommended Order filed. |
| Aug. 05, 1993 | Order Granting Enlargement of Time sent out. (proposed findings of fact et al due 8/16/93) |
| Jul. 30, 1993 | Corrected Pages to Hearing Held in Vero Bch, FL filed. (From Patti O'Neal) |
| Jul. 28, 1993 | Petitioners' Memorandum in Opposition to Intervenor's Motion for Extension of Time to File Post Hearing Memorandum filed. |
| Jul. 27, 1993 | Intervenors' Motion for Extension of Time to File Post Hearing Memorandum filed. |
| Jul. 26, 1993 | Transcript (Vols 7-12 filed. |
| Jun. 24, 1993 | Order Granting Enlargement of Time sent out. |
| Jun. 24, 1993 | Order Granting Enlargement of Time sent out. |
| Jun. 17, 1993 | (Respondent) Response to Petitioner's Memorandum in Opposition to Joint Motion for Extension filed. |
| Jun. 15, 1993 | Petitioners' Memorandum in Opposition to Joint Motion for Extension filed. |
| Jun. 11, 1993 | Joint Motion for Extension filed. |
| May 10, 1993 | Transcript (Vols 13-17) filed. |
| Apr. 12, 1993 | CC Letter to Thomas G. Tomasello from Dana M. Wiehle (re: response torequest) filed. |
| Mar. 23, 1993 | Order Continuing And Rescheduling Formal Hearing sent out. (hearing rescheduled for April 14-16, 1993; 9:00am; Talla) |
| Mar. 19, 1993 | (Petitioner) Motion to Set Hearing filed. |
| Mar. 17, 1993 | (Petitioner) Motion for Continuance filed. |
| Mar. 10, 1993 | Order Setting Formal Hearing sent out. (hearing rescheduled for March 22-24, 1993; 9:00am; Talla) |
| Mar. 09, 1993 | (Petitioners) Motion for Order Setting Final Hearing filed. |
| Mar. 04, 1993 | CC Letter to Dana Wiehle from Thomas G. Tomasello (re: scheduling of hearign) filed. |
| Feb. 27, 1993 | CASE STATUS: Hearing Partially Held, continued to March 4 and 5, 1993; 9:30am; Talla) |
| Feb. 23, 1993 | (Respodnent) Motion to Dismiss filed. |
| Feb. 18, 1993 | (Petitioner) Motion to Amend Petition; Amended Petition for Determination of Invalidity of Agency Statements and Invalidity of Existing Rules (for 93-0604RU) filed. |
| Feb. 15, 1993 | Notice of Taking Deposition filed. (From Thomas G. Tomasello) |
| Feb. 15, 1993 | Order of Consolidation sent out. (Consolidated cases are: 90-8074, 90-8075, 93-604RU) |
| Feb. 15, 1993 | Case No/s 90-8074, 90-8075: unconsolidated. |
| Feb. 15, 1993 | Notice of Taking Deposition filed. (From Thomas G. Tomasello) |
| Feb. 05, 1993 | (Petitioner) Motion to Consolidate filed. |
| Nov. 10, 1992 | Notice of Hearing sent out. (hearing set for February 22-26, 1993; 1:00pm the first day and 9:00am on all other days; Vero Beach) |
| Oct. 28, 1992 | (Petitioners) Status Report Request for Order Scheduling this Cause for Formal Hearing filed. |
| Oct. 12, 1992 | Order of Abeyance sent out. (Parties to file status report by 12-7-92) |
| Sep. 30, 1992 | (Petitioners) Response to Order filed. |
| Aug. 10, 1992 | Transcript (Vols V&VI) filed. |
| Aug. 07, 1992 | Transcript of Proceedings (volumes I - IV) filed. (note: each volume is 2 volumes; total of 8 rec'd). |
| Aug. 05, 1992 | Order Continuing Hearing sent out. (hearing cancelled, status reportdue 9/30/92) |
| Aug. 05, 1992 | Joint Motion to Continue Hearing filed. |
| Jul. 31, 1992 | Petitioner's Memorandum of Pending Legal Issues and Inventory of Petitioners' Exhibits; Joint Mid-Hearing Memorandum filed. |
| Jul. 23, 1992 | Order Granting Enlargement of Time sent out. (motion granted) |
| Jul. 22, 1992 | Joint Motion for Additional Extension of Time filed. |
| Jul. 16, 1992 | Petitioners' Response to Order to Show Cause filed. |
| Jul. 15, 1992 | Respondent Department of Natural Resources' Response to Order to ShowCause filed. |
| Jul. 14, 1992 | Intervenor's Response to Order to Show Cause filed. |
| Jul. 08, 1992 | Joint Motion for Extension of Time filed. |
| Jun. 23, 1992 | Notice of Hearing sent out. (hearing set for August 17, 1992 at 1:00pm and 9:00am on August 18-21, 1992; Vero Beach |
| Jun. 17, 1992 | Order to Show Cause sent out. (parties to show cause why this case should not be closed, must file reply by 7-15-92) |
| May 22, 1992 | Memorandum of Law Concerning Attorney Meetings With Witnesses filed. (From David G. Guest) |
| May 11, 1992 | CASE STATUS: Hearing Held. |
| May 07, 1992 | (Respondent) Response to Order filed. |
| May 07, 1992 | Intervenors' Amended Witness List; Intervenors' Amended Exhibit List filed. |
| May 05, 1992 | Petitioners' Supplemental Response to Respondent, Department of Natural Rsources' Interrogatories filed. |
| May 05, 1992 | Petitioners' Amended List of Exhibits filed. |
| May 05, 1992 | Respondent Department of Natural Resources' Final Exhibit List filed. |
| May 04, 1992 | Order on Pending Motions sent out. |
| May 01, 1992 | Petitioners' First Set of Interrogatories to Respondent, Department of Natural Resources (11-21 only) filed. |
| May 01, 1992 | Respondent Department of Natural Resources' Response to Petitioners' Motion to Compel filed. |
| May 01, 1992 | (DNR) Motion in Limine to exclude Particular Irrelevant & Immaterial Evidence filed. |
| Apr. 29, 1992 | Petitioners' Motion to Compel The Department of Natural Resources to Respond to Interrogatories filed. |
| Apr. 29, 1992 | Notice of Taking Deposition filed. (From Thomas G. Tomasello) |
| Apr. 29, 1992 | Petitioners' Objection to Joint Motion to Leave Record Open and to Submit Testimony by Deposition filed. |
| Apr. 29, 1992 | Respondent Department of Natural Resources' Amended Motion to Compel filed. |
| Apr. 29, 1992 | Respondent Department of Natural Resources' Motion for Continuance filed. |
| Apr. 28, 1992 | Petitioners' Response to Respondent Department of Natural Resources' Interrogatories and Request for Production of Documents; Petitioners' Amended Response to Respondent Department of Natural Resources' Request for Admissions filed. |
| Apr. 28, 1992 | Respondent Department of Natural Resources' Notice of Service of Answers to Interrogatories; Joint Motion to Leave Record Open And to Submit Testimony by Deposition; Respondent Department of Natural Resources'Exhibit List filed. |
| Apr. 27, 1992 | Respondent Department of Natural Resources' Final Witness List filed. |
| Apr. 27, 1992 | Petitioner's List of Exhibits; Petitioner's Response to Respondent Department of Natural Resource's Request for Admissions filed. |
| Apr. 22, 1992 | Notice of Taking Deposition filed. |
| Apr. 14, 1992 | Notice of Taking Deposition filed. (From Thomas G. Tomasello) |
| Apr. 09, 1992 | CC Letter to Dana Wiehle et al from Tom Tomasello (re: requests to enter and inspect the properties at issue in this proceeding) filed. |
| Apr. 06, 1992 | Intervenors', Center For Marine Conservation, Donna Devlin, and Caribbean Conservation Association, Witness List; (4) Notice of Taking Deposition filed. |
| Apr. 06, 1992 | Intervenors' Request to Premit Entry Upon Land filed. |
| Mar. 31, 1992 | Respondent Department of Natural Resources' Notice of Service of Request for Admissions; Respondent Department of Natural Resources' Noticeof Service of Interrogatories filed. |
| Mar. 30, 1992 | Respondent Department of Natural Resources' Witness List filed. |
| Mar. 30, 1992 | Petitioners' Witness List filed. |
| Mar. 25, 1992 | Notice of Service of Petitioners' First Set of Interrogatories to Respondent, State of Florida, Deprtment of Natural Resources filed. |
| Jan. 10, 1992 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for May 11-15, 1992; 10:30am; Vero Beach). |
| Jan. 08, 1992 | Respondent Department of Natural Resources' Motion for Continuance filed. |
| Dec. 20, 1991 | Subpoena Duces Tecum filed. (From Thomas G. Tonmasello) |
| Dec. 20, 1991 | (Petitioner) Notice of Taking Deposition Duces Tecum filed. |
| Dec. 12, 1991 | Amended Notice of Taking Deposition filed. (From Thomas G. Tomasello) |
| Dec. 12, 1991 | Notice of Taking Deposition filed. (From Thomas G. Tomasello) |
| Nov. 25, 1991 | Respondent Department of Natural Resources' Response to Petitioners' Request for Production filed. |
| Nov. 06, 1991 | Intervenors' Response in Opposition to Petitioners' Motion to Compel Production of Documents; Intervenors' Response in Opposition to Petitioners' Motion to Compel Deponent to Answer Questions filed. |
| Oct. 22, 1991 | Petitioners' Motion to Compel Deponent, MS. Cheryle Ryder, to Answer Questions w/attached Deposition of Cheryl Elain Ryder) filed. |
| Oct. 18, 1991 | Petitioners' Motion to Compel Intervenors to Produce Documents; Petitioners' Second Motion to Compel Department of Natural Resources to Produce Documents filed. |
| Oct. 08, 1991 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing set for 02/10-14/92;10:30 AM;Vero Beach) |
| Oct. 08, 1991 | Order Denying Motion in Limine sent out. |
| Sep. 30, 1991 | Notice of Taking Deposition filed. (From David G. Guest) |
| Sep. 30, 1991 | Notice of Service of Petitioners' Request to Department of Natural Resources for Production of Documents; Petitioners' Request to Department of Natural Resources For the Production of Documents filed. |
| Sep. 27, 1991 | Respondent Department of Natural Resources' Motion for Continuance filed. |
| Sep. 26, 1991 | Notice of Service of Petitioners First Request to Intervenors for TheProduction of Documents; Petitioners First Request to Intervenors forThe Production of Documents filed. |
| Sep. 26, 1991 | Petitioners Motion to Compel Department of Natural Resources to Produce Documents w/Att. filed. |
| Sep. 11, 1991 | (Respondent/Intervenors) Response in Opposition to Motion in Limine filed. (From David G. Guest & Dana Wiehle) |
| Sep. 04, 1991 | Initial Prehearing Stipulation filed. |
| Aug. 28, 1991 | Petitioners Motion in Limine filed. |
| Aug. 20, 1991 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for Nov. 18-22, 1991; 9:30am; Vero Beach). |
| Aug. 20, 1991 | Order Compelling Discovery sent out. |
| Aug. 14, 1991 | Petitioners' Fourth Chapter 119, Florida Statutes, Public Rescords Request of Department of Natural Resources filed. (From Thomas Tomasello) |
| Aug. 13, 1991 | Notice of Taking Deposition filed. (From David Guest) |
| Aug. 12, 1991 | Petitioners Third Chapter 119, Florida Statutes, Public Records Request of Department of Natural Resources; Fact Sheet filed. |
| Aug. 09, 1991 | (Petitioners) Notice of Response to Interrogatories filed. |
| Jul. 30, 1991 | Parties' Proposed Prehearing and Hearing Schedule filed. |
| Jul. 15, 1991 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for Sept. 17, 1991; 9:30am; Talla). |
| Jul. 11, 1991 | Notice of Service of Intervenors' Answers to Petitioners' First Set of Interrogatories; Notice of Service of Intervenors' Answers to Petitioners' First Set of Interrogatories filed. (From David G. Guest) |
| Jul. 10, 1991 | Respondent Department of Natural Resources' Notice of Service of Response to Petitioners' First Request for Admissions filed. (From Dana M.Wiehle) |
| Jul. 02, 1991 | Intervenors Motion for Continuance of Final Hearing filed. |
| Jun. 27, 1991 | Intervenors' First Request for Production of Documents to Petitioners; Intervenors' First Set of Interrogatories to Petitioners filed. (from David G. Guest) |
| Jun. 27, 1991 | Notice of Service of Intervenors' First Set of Interrogatories to Petitioners, Andrew Machata and Neil Lanzendorf; Notice of Service of Intervenors' Request for Production of Documents to Petitioners, Andreq Machata and Neil Lanzendorf; Intervenors' rec |
| Jun. 25, 1991 | Order Granting Consolidation. Consolidated Cases are: 90-8074 and 90-8075 |
| Jun. 18, 1991 | Petitioners' Second Public Records Request of Department of Natural Resources filed. (From Thomas Tomasello) |
| Jun. 10, 1991 | Letter to DSM from Thomas G. Tomasello (re: Motion to Consolidate) filed. |
| Jun. 06, 1991 | Notice of Servce of Petitioners' First Request for Admissions to Respondent, State of Florida, Department of Natural Resources; Charpter 119, Florida Statutes Public Records Request filed. (From T. G. Tomasello) |
| Jun. 06, 1991 | Notice of Service of Petitioners' First Set of Interrogatories to Intervenors, Center For Marine Conservation, Donna Devlin, and Caribbean Conservation Corporation; Petitioners' Motion For Consolidation; Notice of Service of Petitioners' First Set of Inte |
| May 31, 1991 | Order Granting Intervention sent out. (for Center for Marine Conservation, Donna Devlin & Caribbean Conservation Corp) |
| May 10, 1991 | Verified Petition to Intervene w/Exhibit-A filed. (From David Carr) |
| Apr. 23, 1991 | Order Vacating Abeyance and Setting formal Hearing sent out. |
| Apr. 22, 1991 | Notice of Hearing sent out. (hearing set for Aug. 1, 1991; 9:30am; Talla) |
| Apr. 22, 1991 | Notice of Transfer sent out. (New HO: Manry). |
| Feb. 27, 1991 | Order of Continuance (matter CONTINUED until 4/15/91 by which time status report is due) sent out. |
| Feb. 26, 1991 | (Petitioner) Status Report filed. |
| Jan. 18, 1991 | Order of Continuance (Continued until March 1, 1991) sent out. |
| Jan. 16, 1991 | (Petitioner) Request That Proceeding Be Held in Abeyance filed. (fromThomas G. Tomasello) |
| Jan. 07, 1991 | Initial Order issued. |
| Dec. 21, 1990 | Amended Petition for Formal Administrative Proceeding Under Section 120.57 (1), Florida Statutes filed. |
| Dec. 21, 1990 | Agency referral letter filed. |
| Dec. 19, 1990 | Agency referral letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 04, 1994 | Agency Final Order | |
| Feb. 16, 1994 | Recommended Order | Pet. clearly justified necessity for permit. Written & unwritten rules are invalid bec they do not adeq establ. standards & are arbitrary & capricious. |
