STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL and JANET RUSH, )

)

Petitioners, )

)

vs. ) CASE NO. 93-0331

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on August 19, 1993, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Patrick J. Rush

qualified representative

119 Rose Drive

Fort Lauderdale, Florida 33156

For Respondent: Lanette Price

Barrie Sawyer

Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station-35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

At issue in this proceeding is whether petitioners' application for a permit for construction activities seaward of the coastal construction control line should be approved by default and, if not, whether it should be approved on its merits.

PRELIMINARY STATEMENT

This proceeding is brought under the provisions of Section 120.57(1), Florida Statutes, to challenge respondent's denial of petitioners' application for authorization to construct a swimming pool at their home, located adjacent to the Atlantic Ocean, in Fort Lauderdale, Florida. As proposed, such construction activity would be seaward of the coastal construction control line.

At hearing, petitioners called Patrick Rush and Shirish Rajpatak as witnesses, and their exhibits A, B, C, D, G, H, I, J, K, L, O, R, S, W, X, Y, AP, AQ, AV, BA, AR, AS, AT, AU, AW, BB, and BC were received into evidence.

Respondent called Barry Manson-Hing and Anura Karanamuni as witnesses, and its exhibits AA, BB, and 1-22 were received into evidence.

The transcript of hearing was filed September 21, 1993, and the parties were granted leave until October 21, 1993, to file proposed findings of fact. Consequently, the parties waived the requirement that a recommended order be rendered within 30 days after the date on which the transcript is filed. Rule 60Q-2.031(2), Florida Administrative Code. The parties' proposals have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

The subject property

1. Petitioners, Michael and Janice Rush, are the owners of a single family residence located at 3032 North Atlantic Boulevard, Fort Lauderdale, Broward County, Florida. Such residence lies seaward of the Broward County Coastal Construction Control Line (CCCL) and is therefore subject to the permitting jurisdiction of respondent, Department of Natural Resources (Department). Section 161.053, Florida Statutes.

   
   

   The first application

   
   

2. In April 1991, Petitioners filed a permit application (Permit File No. BO-267) with the Department for permission to renovate their home and construct a swimming pool. That application was found to be incomplete, and by letter of April 17, 1991, the Department notified petitioners of the information required to complete their application.

   
   

3. Following receipt and review of the requested information, the Department, by letter of July 26, 1991, advised petitioners that, as proposed, their application to construct a pool and renovate the home would have to be denied. Pertinent to the proposed pool, such letter observed that a portion of the pool would be located seaward of the 30-year erosion projection which is prohibited 1/, the general construction line of major structures would be advanced further seaward, adverse impacts to the beach/dune system during a major storm event could be expected, and cumulative adverse impacts could be expected.

   
   

4. Thereafter, by letter of August 14, 1991, the Department was advised that petitioners were submitting new house plans for the subject property, and that the request for leave to construct the pool had been removed from their application. 2/

   
   

5. On December 23, 1991, the Department issued a final order in Permit File No. BO-267 which authorized the petitioners to remodel their home. Such final order observed:

   
   

   . . . The direct and cumulative impacts to the beach and dune system that will be caused by both the seaward location and shore- parallel width of the proposed construction represent the maximum such impacts that are acceptable to the Department. Therefore,

   future construction on the site seaward of the coastal construction control line shall not extend further seaward of, or increase the shore- parallel coverage occupied by, the proposed structures approved pursuant to this permit.

   
   

   The pool, which petitioners had initially proposed to construct seaward of the home, but subsequently deleted from their plans, constituted a major structure, albeit nonhabitable. Rule 16B-33.002(54)(b), Florida Administrative Code.

   
   

6. Petitioners were expressly advised by the Department of their right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, to contest the provisions of the final order. No such contest was filed. 3/

   
   

   The pending application

   
   

7. On February 20, 1992, petitioners filed a new application (Permit File NO. BO-289) with the Department for permission to construct the swimming pool on their property.

   
   

8. As proposed, the pool would be located in the beach-dune system seaward of petitioners' home, as well as seaward of an existing retaining wall on the petitioners' property. The pool would measure 16.0' x 35.7' externally, be constructed of reinforced gunite, and be supported by ten piles. The alignment of the pool would be in the shore parallel direction, rather than the shore normal direction as proposed in the prior application, thereby placing the pool landward of the 30-year erosion projection.

   
   

9. By letter of March 8, 1992, the Department advised petitioners that their application was incomplete, and requested additional information. Petitioners submitted the final information necessary to complete their application on July 21, 1992.

   
   

10. By letter dated October 7, 1992, received by petitioners' representative on October 13, 1992, the Department issued a public notice as follows:

    
    

    The referenced application for a permit pursuant to Section 161.053, Florida Statutes, has been placed on the agenda of the head of the Department of Natural Resources (Governor and Cabinet). The application will be reviewed by the Cabinet Aides in the Cabinet Meeting Room on the lower level of the Capitol, at 9:00 a.m., October 14, 1992. The application will then be heard by the Governor and Cabinet in Room LL03 of the Capitol, at 9:00 a.m., October 20, 1992. You may attend these meetings if you desire.

    The recommendation [for denial] shown on the enclosed agenda item has been made to the head of the Department by the Executive Director. This represents an agency determination. . . .

    The notice, consistent with the provisions of Rule 16B-33.012(8), Florida Administrative Code, further advised that any substantially affected person had the right to request a formal hearing, pursuant to Section 120.57, Florida Statutes, within 21 days of receipt of the notice, and that "If the decision of the Governor and Cabinet is different from the staff recommendation as noticed .

    . ., then the applicant or any substantially affected person shall have 21 days from the date of the Governor and Cabinet's announcement of their decision in which to petition the agency for a hearing."

    
    

11. The basis for the Department's denial of petitioners' application to construct the swimming pool was stated as follows:

    
    

    1. The proposed swimming pool is not consistent with Rule 16B-33.005(1), Florida Administrative Code, because it has not been clearly justified by the applicant and less impactive alternatives are available. For example a similar structure could be sited in a less impactive location landward of the single-family dwelling on the southwest corner of the property.

    2. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(a), Florida Administrative Code, for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade.

    3. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(c), Florida Administrative Code, for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties.

    4. The proposed swimming pool is inconsistent with Paragraph 161.053(5)(b), Florida Statutes, because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area.

    5. The proposed swimming pool is inconsistent with Rule 16B-33.007(1), Florida Administrative Code, because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shore line fluctuations and to preserve dune stability and natural recovery following storm-induced erosion.

    6. The proposed swimming pool is not designed pursuant to Rule 16B-33.007(2), Florida Administrative Code, to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion

       within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system.

       * * *

       8. The proposed project is not designed pursuant to Rule 16B-33.005(7), Florida Administrative Code, because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event. The Department, therefore, may not authorize the construction of the pool.

       
       

12. On October 13, 1992, petitioners requested that their application be removed from the agenda, and be rescheduled for "a later date to be determined." The rationale for petitioners' request was to afford "an opportunity for the permittee and staff to meet in Tallahassee in early to mid November and reach a design for a pool which can be recommended favorably by staff."

    
    

13. By letter of October 14, 1992, the Department granted petitioners' request and the item was removed from the agenda for the Governor and Cabinet meeting of October 20, 1992. Such letter further provided that although the Department was willing to meet with petitioners to discuss the staff concerns about their application, that it "must caution you . . . that at this time I do not anticipate that a swimming pool, as you requested, can be satisfactory [sic] located seaward of your home."

    
    

14. Petitioners and the Department were unable to resolve their dispute. Accordingly, petitioners filed a petition on November 2, 1992, to contest the proposed denial of their application.

    
    

15. By letter of November 13, 1992, the Department advised petitioners that their request for formal administrative hearing was inadequate, but accorded them 14 days from receipt of such letter to submit an appropriate request. Petitioners timely submitted an appropriate request for hearing on November 30, 1992, and the matter was thereafter referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. 4/

    
    

    The merits of the pending application

    
    

16. As heretofore noted in the findings of fact, the Department enunciated seven reasons to support its denial of petitioner's application.

    
    

17. The first basis for denial was the Department's assertion that the proposed swimming pool was not consistent with Rule 16B-33.005(1), Florida Administrative Code, "because it has not been clearly justified by the applicant and less impactive alternatives are available." In this regard, it is observed that Rule 16B-33.005(1), Florida Administrative Code, provides:

    
    

    . . . Establishment of a coastal construction control line . . . does not preclude all development of or alteration of coastal property seaward of such lines. However, activities seaward of a coastal construction

    control line . . . shall be limited and the necessity of such development, construction or alteration shall be stated and clearly

    justified by the applicant. (Emphasis supplied)

    
    

18. The aforesaid rule does not further explain what is contemplated by the requirement that the applicant clearly justify the "necessity" of the proposed development; however, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary. 5/ In this regard, "necessity" is defined to mean "something that cannot be done without." Websters New Twentieth Century Dictionary. It is also defined as "something needed for the existence, effectiveness, or success of something (a requirement)," and "the state or fact of being required or unavoidable." The American Heritage Dictionary of the English Language.

    
    

19. Here, the proof fails to demonstrate any "necessity" to construct the swimming pool since it fails to credibly support the conclusion that such construction is required for the effective or reasonable use of petitioners' property or that such construction is essential for the well-being of its occupants.6/ To the contrary, the petitioners' decision to construct the pool is merely a matter of personal preference or convenience. Moreover, the proof fails to demonstrate any "necessity" to construct a pool of the size and configuration proposed (16' x 35.7' with a maximum depth of 8') or of the materials selected (reinforced gunite supported by piles). Indeed, a pool of a different configuration or size could be located elsewhere on the property and the pool could be constructed on a base slab foundation or of vinyl to alleviate the adverse effects of its current design, discussed infra. 7/

    
    

20. As further reasons for denial, the Department concluded that construction of the swimming pool was not consistent with Rule 16B-33.005(2)(a), Florida Administrative Code, "for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade"; Rule 16B-33.005(2)(c), Florida Administrative Code, "for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties"; Rule 16B- 33.007(1), Florida Administrative Code, "because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shoreline fluctuations and to preserve dune stability and natural recovery following storm-induced erosion"; and Rule 16B-33.007(2), Florida Administrative Code, "to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system."

    
    

21. Pertinent to the aforesaid reasons for denial, Rule 16B-33.005(2), Florida Administrative Code, the "Department Policy Statement on Permits," provides:

    
    

    Seaward of the coastal construction control line . . ., special siting, structural and other design considerations are required:

    (a) for the protection of the beach-dune system;

    * * *

    (c) for the protection of adjacent properties.

    And, Rule 16B-33.007, Florida Administrative Code, the "Structural and Other Requirements Necessary for Permit Approval," provides:

    
    

    1. The proposed structure or other activity shall be located a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and natural recovery following storm induced erosion

       . . . .

    2. All structures shall be designed so as to minimize any expected adverse impact on the beach-dune system or adjacent properties and structures and shall be designed consistent with Section 16B-33.005, Florida Administrative Code.

    
    

22. Relevant to such rules, the proof demonstrates that the frontal dune on the subject property appears to have been leveled at an elevation of approximately +12.0 feet NGVD, and petitioners' home is located on top of the crest of the frontal dune. The seaward slope of the frontal dune begins at the seaward face of the house and slopes down to the beach. Approximately 12 feet seaward of the house is an existing retaining wall. The proposed pool will be sited immediately seaward of such wall and therefore on the seaward slope of the frontal dune.

    
    

23. The proposed pool is a pile supported concrete swimming pool with exterior dimensions of 16.0' shore-normal by 35.7' shore-parallel, and a maximum depth of 8.0'. The foundation is specified to be auger-cast piles, which will penetrate to an elevation of -23.0' NGVD or 3' embedment where a rock layer is encountered. The elevation of the pool is proposed at +13.0' NGVD, with a bottom elevation of +4.0' NGVD.

    
    

24. As designed and sited, construction of the pool would destabilize the dune, hinder its function of protecting upland development during a storm event, and adversely affect natural shoreline fluctuation and recovery following storm induced erosion. In this regard, the proof demonstrates that the location of the pool seaward of the existing retaining wall would interrupt the natural continuity of dune formation because sand would accumulate seaward of the pool in a less stable location and would impede the accumulation of sand on adjacent properties.

    
    

25. Construction of the pool, as designed and sited, would also induce scour during the course of a storm event impacting the structure. Such storm- induced scour, in addition to erosion, would cause the loss of additional sand at the vicinity of the structure, robbing the beach-dune system of additional sand necessary to protect upland structures, and would also contribute to the potential failure of the structure itself and other upland structures. In this regard, the proof demonstrates that approximately 1,000 cubic yards of sand would be lost on petitioners' section of the beach in the event of a 10-year storm. Additionally, structure-induced scour of 77.5 cubic yards from the ten piles, 120.4 cubic yards from the pool shell, and 15.8 cubic yards from the "end effects" of the pool (the amount of structure-induced scour from the ends of the structure) might reasonably be anticipated in the event of a 10-year storm. If the pool were to be impacted by a higher frequency storm, such as a 20-year or a 100-year storm, scour and erosion would increase. 8/

26. As an additional basis for denial, the Department concluded that construction of the pool was not consistent with Section 161.053(5)(b), Florida Statutes, "because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area." Here, the proof supports the Department's conclusion.

    
    

27. As its final basis for denial, the Department concluded that construction of the pool was not consistent with Rule 16B-33.005(7), Florida Administrative Code, "because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event."

    
    

28. Pertinent to the aforesaid basis for denial, Rule 16B-33.005(7), Florida Administrative Code, provides:

    
    

    An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site; however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event . . . .

    
    

29. Here, petitioners' project is expected to have significant adverse impacts to the beach-dune system as a consequence of its design and siting. Accordingly, the provisions of Rule 16B-33.005(7), Florida Administrative Code, are not relevant. Moreover, there was no proof concerning any similar structures along the coast, existing or proposed, that would contribute to or intensify the degradation of the beach-dune system occasioned by the proposed project. Accordingly, it cannot be concluded that cumulative impact is a relevant issue in these proceedings.

    
    

30. While cumulative impact is not relevant to the pending application, the other reasons advanced by the Department for denial of the application have, as heretofore found, a rational basis in fact. Under such circumstances, petitioners have failed to demonstrate their entitlement to the subject permit.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

32. At issue in this proceeding is whether petitioners' application to construct a swimming pool seaward of the CCCL should be approved by default and, if not, whether it should be approved on its merits. As the applicants, petitioners bear the burden of demonstrating their entitlement to the subject permit. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

33. Pertinent to the issue of whether petitioners are entitled to the approval of their application by default are the provisions of Section 120.60(2), Florida Statutes, which provides as follows:

    
    

    . . . Every application for license [permit] shall be approved or denied within

    90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law . . . Any application for a license [permit] which is not approved or denied within the 90-day or shorter time period, [or] within 15 days after conclusion of a public hearing held on the application

    . . . shall be deemed approved . . . .

    
    

34. Also pertinent to the resolution of this issue are the provisions of Rule 16B-33.012, Florida Administrative Code, the Department's "Processing Procedures," which provides, relevant to this case, as follows:

    
    

    1. All applications shall be processed and reviewed in accordance with time requirements specified by Section 120.60, Florida Statutes. The Governor and Cabinet shall take final agency action on all coastal construction control line permit applications submitted pursuant to this chapter except [circumstances not relevant to these proceedings] . . .

    2. Within 30 days after an application for a permit is received, the staff shall examine the application for completeness, and shall notify the applicant of any apparent errors or omissions and request any additional information required to make the application complete.

    3. For those permit applications to be considered by the Governor and Cabinet, upon receipt of the information set forth in Paragraphs 16B-33.008(2)(g), (h), and (k), Florida Administrative Code, the Bureau shall send public notices of the application.

    4. When the staff has determined that the application for a permit is complete, the staff shall review the application and all information submitted regarding the application and shall prepare an evaluation for the Division Director, the Executive Director or the Governor and Cabinet, as appropriate, for final agency action.

    * * *

    1. Subsequent to review of an application, the staff shall make an evaluation to the Division Director or the Executive Director, as appropriate, stating whether the permit should be approved or denied. This evaluation is not binding upon the Division Director or the Executive Director.

    2. The Bureau shall develop and maintain a mailing list to provide those persons requesting such notice with notice of applications to be submitted to the Governor and Cabinet for final agency action.

    3. For those permit applications to be considered by the Governor and Cabinet, at the time the Executive Director submits his recommendation the staff shall notify the applicant and all persons requesting information of intent to approve or deny. Such notifications shall include:

    1. The name and address of the applicant.

    2. The nature and location of the proposed activity;

    3. The staff evaluation;

    4. A statement that a request of the Department for a hearing pursuant to Section 120.57, Florida Statutes, shall be made within 21 days of the receipt of notice or the right for such hearing shall be waived (If the decision of the Governor and Cabinet is different from the staff recommendation as noticed pursuant to this subsection, then the applicant or any substantially affected person shall have 21 days from the date of the Governor and Cabinet's announcement of their decision in which to petition the agency for a hearing); and

    5. The time and place that the permit application will be heard by the Cabinet aides and the Governor and Cabinet, and the fact that the applicant and any interested persons may appear or be represented to make their position known . . . .

    
    

35. Here, petitioners' application was deemed complete on July 21, 1992, and the 90-day provision of Section 120.60(2), Florida Statutes, mandated action on that application by October 19, 1992.

    
    

36. Consistent with Section 120.60(2), Florida Statutes, and Rule 16B- 33.012, Florida Administrative Code, the Department provided petitioners public notice by letter of October 7, 1992, received by petitioners' representative on October 13, 1992, of the Executive Director's recommendation to the Governor and Cabinet to deny the subject application. Such notice complied in all respects with the provisions of Rule 16B-33.012(8), Florida Administrative Code, discussed supra. Accordingly, the Department acted in a timely manner on petitioners' application, and petitioners have failed to sustain their contention that the subject application should be approved by default. 9/

37. Relevant to the merits of petitioners' application, Section 161.053, Florida Statutes, provides:

    
    

    1. The Legislature finds and declares that the beaches in this state and the coastal barrier dunes adjacent to such beaches, by their nature, are subject to frequent and severe fluctuations and represent one of the most valuable natural recourses 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. In furtherance of these findings, it is the intent of the Legislature to provide that the department establish coastal construction control lines on a county basis along the sand beaches of the state fronting on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida. Such lines shall be established so as to define that portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions . . . Special siting and design considerations shall be necessary seaward of established coastal construction control lines to ensure the protection of the beach-dune system, proposed or existing structures, and adjacent properties and the preservation of public beach access.

       * * *

    2. . . . Upon the establishment, approval, and recordation of such control line or lines, no person, firm, corporation, or governmental agency shall construct any structure whatsoever seaward thereof; make any excavation, remove any beach material, or otherwise alter existing ground elevations; drive any vehicle, on, over, or across any sand dune; or damage or cause to be damaged such sand dune or the vegetation growing thereon seaward thereof, except as hereinafter provided . . . .

    * * *

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

       1. The department may authorize an excavation or erection of a structure at any coastal location as described in subsection

          1. upon receipt of an application from a property and/or riparian owner and upon the consideration of facts and circumstances, including:

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

             2. Design features of the proposed structures or activities; and

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

          * * *

       2. If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing, and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department if such structure is also approved by the department

    . . . This paragraph does not prohibit the department from requiring structures to meet design and siting criteria established in paragraph (a) or in subsection (1) or subsection (2).

    
    

38. To implement the provisions of Section 161.053, Florida Statutes, the Department has adopted Rules 16B-33.005 and 16B-33.007, Florida Administrative Code, which provides as follows:

    
    

    16B-33.005 Department Policy Statement on Permits.

    1. A coastal construction control line (Section 161.053, Florida Statutes) is intended to define that portion of the beach- dune system which is subject to severe fluctuations based on one-hundred-year storm surge, storm waves, or other predictable weather conditions. The coastal construction control and 50-foot setback lines call attention to the special hazards and impact associated with the use of such property. Establishment of a coastal construction control line or the 50-foot setback requirement (Section 161.052, Florida Statutes) does not preclude all development of or alteration of coastal property seaward of such lines. However, activities seaward of a coastal construction control line or 50- foot setback shall be limited and the

       necessity of such development, construction or alteration shall be stated and clearly justified by the applicant.

    2. Seaward of the coastal construction control line and 50-foot setback, special siting, structural and other design considerations are required.

       1. for the protection of the beach-dune system;

    * * *

    1. for the protection of adjacent properties.

       16B-33.007 Structural and Other Requirements Necessary for Permit Approval. The following requirements must be met before a permit is approved by the Governor and Cabinet, the Executive Director, or the Division Director:

       1. The proposed structure or other activity shall be located a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and natural recovery following storm induced erosion

          . . . .

       2. All structures shall be designed so as to minimize any expected adverse impact on the beach-dune system or adjacent properties and structures and shall be designed consistent with Section 16B-33.005, Florida Administrative Code.

    * * *

    (7) An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site; however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event. . . .

    
    

39. Here, while cumulative impact was found not relevant to a consideration of petitioners' application, the other reasons advanced by the Department for the denial of the application, under the foregoing provisions of law, were found to have a rational basis in fact. Accordingly, petitioners have failed to sustain their burden of demonstrating entitlement to the subject permit.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioners' application

to construct seaward of the CCCL.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November 1993.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November 1993.

ENDNOTES

1/ See Section 161.053(6)(b), Florida Statutes, and Rule 16B-33.006(3), Florida Administrative Code.

2/ Petitioners deleted the pool from their application in order to obtain a permit for the construction of the dwelling without undue delay.

3/ Here, the Department does not contend that the final order rendered on the first application is preclusive to petitioners' pending application for authorization to construct the swimming pool. The Department does, however, suggest that such order accorded petitioners' notice of the Department's adverse opinion regarding further construction seaward and that petitioners' construction of the home without further effort to redesign it to accommodate the pool in a manner acceptable to the Department should reflect adversely on their current application or the issue of "necessity." In light of the findings on "necessity," discussed infra, it is unnecessary to address the significance, if any, of such argument.

4/ By public notice of November 18, 1992, notice was given that the subject application was being placed on the agenda for the Governor and Cabinet meeting of December 1, 1992, with a recommendation for denial based on the same grounds as stated previously. Such notice also advised substantially affected persons of their right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, within 21 days of such notice. In light of petitioners' submittal of an appropriate request for formal hearing on November 30, 1992, the item was removed from the Governor and Cabinet's agenda.

5/ Where, as here, the language of a statute or rule is not otherwise defined, the words chosen are accorded their ordinary meaning. See, e.g., Metropolitan Dade County v. Green, 596 So.2d 458 (Fla. 1992), ("The general rule of construction is that words not expressly defined are given their plain and

ordinary meaning"), and Green v. State, 604 So.2d 471, 473 (Fla. 1992), ("If necessary, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary.").

6/ In reaching such conclusion, the testimony of Patrick Rush regarding the value of the pool for "protection" of the Rushs' four children (Tr. 34-35), ages unknown, and that adding a pool will increase the value of the property, has not been overlooked. The testimony with regard to "protection" of the children was not, however, credible or persuasive, and the testimony regarding increased value, which was not quantified, was not persuasive or relevant.

7/ If the proof supported the conclusion that the "necessity" for constructing the pool had been clearly justified, which it does not, then the Hearing Officer would concur with petitioners that the particular "pool dimensions [16' x 35.7'] precludes it being placed in any other place [on the property]" (Tr. p. 59).

8/ There are a number of possible scenarios for what could happen in the event of a storm depending on whether the pool remains intact or fails, when failure occurs, and the intensity of the storm. It is, however, apparent that there will be significant sand loss due to scour whether the pool breaks apart at some point during a storm or not. Indeed, should the pool not fail, scour will be induced by the pool shell and the pool piles, and if the pool fails, scour will be induced by the remains of the pool walls and pool piles.

9/ The gravamen of petitioners' argument concerning their quest for approval of their application by default, is that under the provisions of Rule 16B-33.012, Florida Administrative Code, the Governor and Cabinet, as the body required to take final agency action on all CCCL permits such as those in the instant case, did not meet or act within the 90-day time period prescribed by Section 120.60(2), Florida Statutes. Therefore, petitioners contend their application should be approved by default. Such argument overlooks, however, the further provisions of Rule 16B-33.012 dealing with permit applications to be considered by the Governor and Cabinet, which provides for notice of intent to approve or deny within the 90-day period by staff, with an appropriate point of entry to contest such action, and additional notice following a public hearing on the application should the Governor and Cabinet's decision differ from staff's recommendation, with a further point of entry to contest such action. Reading the provisions of Rule 16B-33.012 in pari materia, staff's notice of intent to deny by letter of October 7, 1992, complied with the requirements of Section 120.60(2), Florida Statutes, to approve or deny every application within 90 days. Had any different action occurred before the Governor and Cabinet, presumably they would have rendered their decision within 15 days after the conclusion of the public hearing, consistent with Section 120.62(2), Florida Statutes. That the Governor and Cabinet did not further address petitioners' application was a consequence of petitioners' initial request that it be withdrawn from the agenda and subsequent request for hearing on the staff's notice of denial.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-331

Petitioners have submitted what they denote as a "Recommended Final Order," which contains under the heading "History" a combination of facts and argument directed toward whether their application should be approved by default. These facts have been specifically addressed in paragraphs 7-15, and petitioners'

arguments specifically addressed in paragraphs 33-36 and endnote 9. Petitioners offered no proposed findings of fact or argument directed to the merits of their application.

The Department has submitted a proposed recommended order which contains proposed findings of fact. Such proposed findings of fact are addressed as follows:

1. Adopted in paragraph 1.

2. Adopted in paragraph 2.

3 & 4. Adopted in substance in paragraph 3.

5. Adopted in paragraph 4.

6-8. Adopted in paragraph 5.

1. Adopted in paragraph 6.

2. Adopted in paragraph 7.

11 & 12. Adopted in substance in paragraph 8.

13-15. Addressed in paragraphs 9 and 35, otherwise unnecessary detail.

16. Rejected as unnecessary detail.

17 & 19. Addressed in paragraph 10.

18. Addressed in paragraph 11.

1. Adopted in paragraphs 12 and 13.

2. Adopted in paragraph 14. 22-24. Adopted in endnote 4.

25-31. Adopted in paragraphs 1, 37 and 38.

32-39. Addressed in paragraphs 17-19 and endnotes 5-7, otherwise unnecessary detail.

40-61, and 69-102. Addressed in paragraphs 20-25, otherwise repetitious and unnecessary detail.

62-68. Addressed in paragraph 26, otherwise unnecessary detail. 103-105. Addressed in paragraphs 27-29.

COPIES FURNISHED:

Patrick J. Rush

qualified representative

119 Rose Drive

Fort Lauderdale, Florida 33156

Lanette Price Barrie Sawyer

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station-35 Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth J. Plante General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

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.

Docket for Case No: 93-000331

Orders for Case No: 93-000331