PETER BROOM, JEREMY R. GEFFEN, ) and DUANE JACKSON, )
vs. ) Case No. 97-0294
Respondents. )
Pursuant to notice, a formal hearing was held in this case on November 13-14, 1997, at Vero Beach, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioners: Theodore W. Herzog, Esquire
Town of Indian River Shores Univest Building, Suite 501 2770 Indian River Boulevard Vero Beach, Florida 32960-4278
Thomas I. Mayton, Jr., Esquire Department of Environmental
The issue for determination is whether the Town of Indian River Shores is entitled to a coastal construction control line permit to construct a beach access seaward of the coastal construction control line in Indian River Shores, Florida.
On July 24, 1996, the Town of Indian River Shores (Town) filed an application with the Department of Environmental Protection (DEP) for a permit to construct a beach access ramp seaward of the coastal construction control line. The application was deemed complete by the DEP on September 3, 1996. By Final Order dated November 27, 1996, the DEP granted a permit, with certain conditions, (Permit No. IR-507) to the Town for the construction. By letter dated December 3, 1996, the DEP provided, among other things, notification to the Town of the granting of Permit No. IR-507. By Petition filed with the DEP on December 23, 1996, Peter Broom, Jeremy R. Geffen, and Duane Jackson protested the granting of the permit and requested a formal hearing. On January 15, 1997, this matter was referred to the Division of Administrative Hearings.
At hearing, Mr. Broom, Mr. Geffen, and Mr. Jackson presented the testimony of two witnesses1 and entered five exhibits into evidence. The Town presented the testimony of four witnesses and entered thirteen exhibits into evidence. The DEP presented the
testimony of two witnesses and entered two exhibits into evidence.
No transcript of the hearing was ordered. The time for filing post-hearing submissions was set for no later than ten days from the date of the hearing. The Town and DEP filed a joint post-hearing submission which has been duly considered. Neither Mr. Broom nor Mr. Geffen nor Mr. Jackson filed a post- hearing submission.
The Town of Indian River Shores (Town) is an incorporated municipality located on a five-mile stretch of the Atlantic Ocean in Indian River County, Florida. The Town has a population of approximately 2,700 residents.
The Town's Public Safety Department has the combined functions of law enforcement, fire protection, and life support (lifesaving). All of the Officers of the Public Safety Department are cross-trained and cross-designated as police officers, firefighters, and emergency service specialists who are either paramedics or emergency medical technicians (EMTs). The Officers are on eight-hour shifts; each shift has approximately four to five Officers on duty, i.e., a police officer, a firefighter, a paramedic, and an EMT. When fully staffed, the Public Safety Department consists of 25 Officers. Because of the small number of Officers and their varied duties, restrictions and limitations are placed on their deployment.
One of the vehicles used by the Public Safety Department in the performance of duties is an all terrain vehicle (ATV).
The Public Safety Department has one ATV which is used on the beach for patrol and rescue purposes and for moving rescue and lifesaving equipment to and from the beach.
In order to access the beach, the Public Safety Department must travel across the dune, primarily through private property (Corrigan Beach) located approximately 3.4 miles from the office of the Public Safety Department. The Town determined that this location was unsatisfactory for beach access due to the property being offered for sale, the great distance of the property from the Public Safety Department's office, and the dune being breached each time the ATV is taken onto the beach.
The Town determined, however, that Beachcomber Lane, a public street within the Town, was the best choice for beach access and entry by the Public Safety Department. Beachcomber Lane is approximately 1,000 feet in total length and extends from Highway A1A to the bluff of the Atlantic Ocean. The Pubic Safety Department is located approximately 1,500 feet from Beachcomber Lane.
The residents of Beachcomber Lane include Peter Broom, Jeremy R. Geffen, and Duane Jackson. At various times, the Public Safety Department has also used Beachcomber Lane as an access to the beach on emergency bases. Currently, a public raised wooden walkway, with steps, leads over the dune and onto
the beach at the Atlantic Ocean end of Beachcomber Lane.
In order for the Public Safety Department to obtain beach access by way of Beachcomber Lane, an access ramp will have to be constructed seaward of the coastal construction control line (CCCL). Such construction requires, among other things, a permit from the Department of Environmental Protection (DEP).
To design and present the plan to the DEP for a proposed beach access by way of Beachcomber Lane, the Town obtained the services of Coastal Technology Corporation (Coastal Technology), an engineering firm. On July 24, 1996, Coastal Technology filed an application on behalf of the Town with the DEP for a permit to construct a beach access ramp seaward of the CCCL. The application process included the submission of detailed drawings and other documents required by DEP.
In the application, Coastal Technology described the construction, in pertinent part, as follows:
6. The proposed work consists of the removal of Brazilian Pepper . . . and installation of a 100 foot (approximate) long, 10 foot wide stabilized emergency access ramp. To minimize the impact to the existing native vegetation, the proposed emergency access ramp will be located approximately 8 feet from the north Right-of-Way within the area of the existing Brazilian Peppers. . . .
A 2-inch layer of washed concrete sand will be placed between the limestone and paver blocks for a proper leveling of the previous paver blocks. The paver blocks will be TURFSTONE . . . which . . . have been permitted by DEP at other locations. . . .
The openings in the TURFSTONE will be filled with excavated beach sand from the proposed
access ramp footprint. Any remaining sand
. . . will be placed at the seaward end of the proposed access ramp. To mitigate for any potential impact to native vegetation,
6 sea grapes will be installed . . . and any sea oats removed during excavation will be kept alive and replanted within those areas void of sea oats.
Three 6-inch by 6-inch pressure treated posts will be installed with a chain fence. A locking chain fence will be used to prohibit the general public from accessing the beach through the emergency access ramp.
In the application, Coastal Technology presented the justification for the construction, in pertinent part, as follows:
7. The proposed access ramp at Beachcomber Lane is specifically for the use by the Town of Indian River Shores for emergency access to the beach. The access ramp will have a locking chain only accessible by the Public Safety Department and has been designed to accommodate four-wheel drive patrol and EMT vehicles. . . . Beachcomber Land [sic] site was chosen by the Town because of : 1) the relative stability of the shoreline at that location; and, [sic] 2) accessibility from the Indian River Shores Town Hall which is on the west side of A1A across from Beachcomber Lane.
The application indicated that the proposed beach access ramp was being constructed for emergency access to the beach. However, prior to the filing of the application, both emergency and routine patrol access by the Public Safety Department were discussed as uses for the access ramp at public meetings by the Town's public officials in which the subject of the access ramp was brought up. Such use for the beach access
ramp was contemplated by the Town from the very inception of the plan for the access ramp.
Routine patrol is defined by the Public Safety Department to be patrolling approximately every other day for one or two hours.
By notice dated August 7, 1996, the DEP requested public comment on the Town's application for the CCCL permit. By letter dated August 21, 1996, residents of Beachcomber Lane, including Mr. Broom, Mr. Geffen, and Mr. Jackson, provided the DEP with their comments on the Town's application.
On September 3, 1996, the Town's application for the CCCL permit was considered complete by the DEP.
On November 6, 1996, at the request of DEP, the Town conducted a public meeting to obtain public comments regarding the proposed beach access ramp. The residents of Beachcomber Lane were notified of the public meeting, and among the residents attending the meeting were Mr. Broom, Mr. Geffen, and
Mr. Jackson. At the public meeting, the Town clearly stated that the proposed beach access ramp would be used by the Public Safety Department for both emergency and routine patrol purposes with the ATV. Also, the Director of the Public Safety Department indicated that, based upon information collected regarding criminal activity and suspected criminal activity along the beach, routine patrol was needed.2
The application process culminated in the issuance of a
Final Order by the DEP on November 27, 1996, granting the CCCL permit, with special permitting conditions in addition to the standard conditions. The CCCL permit granted by the DEP was Permit No. IR-507. The proposed beach access ramp to be constructed is approximately 100 feet in length and 10 feet in width. The construction will utilize turf blocks which permit grass and foliage to grow through the blocks on the access-way.
A provision of the DEP Final Order requires the removal of exotic plants (Brazilian Pepper), which are not native plants, and the replanting of native vegetation adjacent to the access-way.
On December 6, 1996, public notice of DEP's issuance of the CCCL permit to the Town was published in the Town's local newspaper.
The Town agrees to abide by the special conditions, as well as the standard conditions, to the issuance of the CCCL permit.
The beach access ramp on Beachcomber Lane will be used by the Town's Public Safety Department for public service purposes, including emergency rescue, training, and routine patrol.
Beachcomber Lane is the appropriate location for the beach access ramp.
The DEP has determined that the construction of the beach access ramp meets all the requirements of the DEP for the issuance of the CCCL permit.
The DEP has determined the proposed beach access ramp to be a minor structure.
The construction of the proposed beach access ramp will cause no significant adverse impact or cumulative impact on the beach dune system.
The design of the proposed beach access, with the conditions added by the DEP, minimizes adverse impact of the access ramp.
Native vegetation will be maintained and replenished around the proposed beach access ramp.
The proposed construction of the beach access ramp will not result in a significant adverse impact to the beach and dune system.
No net excavation in the sandy soils seaward of the control line will result from the construction.
No structurally induced scour will result from the construction because the proposed structure is designed to break- away during a storm.
The potential for wind and waterborne missiles during a storm is minimized by the construction.
Public access to the beach is not interfered with by the beach access ramp.
The construction of the beach access ramp will occur in a nesting habitat of the marine turtle, i.e., loggerhead, leatherback and green turtle. The DEP addressed protection of
the nesting area through one of its special conditions to the issuance of the CCCL permit. The special condition included "no construction, operation, transportation or storage of equipment or materials seaward of the dune crest during the marine turtle nesting season" which is March 1 through October 31 of each year. With this special condition, the construction, itself, will have no adverse impact on the marine turtle or the turtle nesting.
The Town agrees to abide by this special condition.3
The access ramp, itself, will have minimal impact on the marine turtles and will not cause a "take" of the turtles.
Furthermore, the use of the ATV by the Public Safety Department will have no adverse impact on the marine turtles or the turtle nesting.
At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.
In the case sub judice, the Town, as the applicant for the CCCL permit, has the ultimate burden of proof. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).
If a property owner seeks to construct a structure seaward of the CCCL, the owner must obtain a CCCL permit from the DEP by meeting the requirements of Section 161.053, Florida Statutes, and Chapter 62B-33, Florida Administrative Code.
Pursuant to Section 161.58, Florida Statutes, local government is authorized to access the coastal beach for public safety reasons. The determination of the necessity and frequency for such access is in the purview of the local government; therefore, in this case, such determination is for the Town, not the DEP. The Town has determined that, in terms of public safety, beach access is needed for emergency and routine patrol purposes. The undersigned is not persuaded by the position asserted by Mr. Broom, Mr. Geffen, and Mr. Jackson that the need expressed by the Town for the proposed beach access ramp is unsupported.
Section 161.053, Florida Statues, provides in pertinent part:
[A] permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows:
The department may authorize an excavation or erection of a structure at any coastal location . . . upon receipt of an application from a property and/or riparian owner and upon the consideration of 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 such beach-dune system, which, in the opinion of the department, clearly justify such a permit.
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The department may condition the nature, timing, and sequence of construction of permitted activities to provide protection to nesting sea turtles and hatchlings and their habitat, pursuant to s. 370.12, and to native salt-resistant vegetation and endangered plant communities.
The department may require such engineer certifications as necessary to assure the adequacy of the design and construction of permitted projects.
Rule 62B-33.007, Florida Administrative Code, provides in pertinent part:
(1) 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 62B-33.005, Florida Administrative Code.
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(4) Minor structures need not meet specific structural requirements for wind and wave forces, but they shall be designed to produce the minimum adverse impact on the beach and dune system and adjacent properties and to reduce the potential for generating aerodynamically or hydrodynamically-propelled missiles.
Rule 62B-33.005, Florida Administrative Code, provides in pertinent part:
In order to demonstrate that construction is eligible for a permit, the applicant shall provide the Department with sufficient information pertaining to the proposed project to show that any impacts associated with the construction have been minimized and that the construction will not result in a significant adverse impact.
After reviewing all information required pursuant to this Chapter, the Department shall:
Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other activities proposed within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated
on its own merits in making a permit decision; therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell.
Require practicable siting and design criteria that minimize adverse impacts, and mitigation of adverse or other impacts.
The Department shall issue a permit for construction which an applicant has shown to be clearly justified by demonstrating that all standards, guidelines and other requirements set forth in the applicable provisions of Part I, Chapter 161, Florida Statutes, and this Chapter are met, including the following:
The construction will not result in removal or destruction of native vegetation which will either destabilize a frontal, primary or significant dune or cause a significant adverse impact to the beach and dune system due to increased erosion by wind or water;
The construction will not result in removal or disturbance of in situ sandy soils of the beach and dune system to such a degree that a significant adverse impact to the beach and dune system would result from either reducing the existing ability of the system to resist erosion during a storm or lowering existing levels of storm protection to upland properties and structures;
The construction will not result in the net excavation of the in situ sandy soils seaward of the control line or 50-foot setback;
The construction will not cause an increase in structure-induced scour of such magnitude during a storm that the structure- induced scour would result in a significant adverse impact;
The construction will minimize the
potential for wind and waterborne missiles during a storm;
The activity will not interfere with public access, as defined in Section 161.021,
Florida Statutes; and
The construction will not cause a significant adverse impact to marine turtles, immediately adjacent properties or the coastal system unless otherwise specifically authorized in this Chapter.
Sandy material excavated seaward of the control line or 50-foot setback shall remain seaward of the control line or setback and be placed in the immediate area of construction unless otherwise specifically authorized by the permit.
Section 161.021, Florida Statutes, provides in pertinent part:
(1) "Access" or "public access" as used in ss. 161.041, 1161.052, and 161.053 means the public's right to laterally traverse the sandy beaches of this state where such access exists on or after July 1, 1987.
Rule 62B-33.002, Florida Administrative Code, provides in pertinent part:
(23) "Impacts" are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows:
"Adverse Impacts" are impacts to the coastal system that may cause a measurable interference with the natural functioning of the system.
"Significant Adverse Impacts" are adverse impacts of such magnitude that they may:
Alter the coastal system by:
Measurably affecting the existing shoreline change rate;
Significantly interfering with its ability to recover from a coastal storm;
Disturbing topography or vegetation such that the system becomes unstable, or suffers catastrophic failure; or
Cause a take, as defined in Section 370.12(1), Florida Statutes, unless the take is incidental pursuant to Section 370.12(1)(f), Florida Statutes.
"Minor Impacts" are impacts associated with construction which are not adverse impacts due to their magnitude or temporary nature.
"Other Impacts" are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access.
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(47) "Structure" is the composite result of putting together or building related components in an ordered scheme. Enumeration of types of structures in this Subsection shall not be construed as excluding from the application of this Chapter any other structure which by usage, design, dimensions, or structural configuration meets the general definition herein provided and requires engineering considerations similar to the following:
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"Minor Structures" are designed to be expendable, and to minimize resistance to forces associated with high frequency storms and to break away when subjected to such forces, and which are of such size or design as to have a minor impact on the beach and dune system.
"Major Structures" which, as a result of design, location or size could cause an adverse impact to the beach and dune system.
Major structures include:
"Nonhabitable Major Structures" which are designed primarily for uses other than human occupancy. Typically included within this category are roads, bridges, storm water outfalls, bathhouses, cabanas, swimming pools and garages.
"Habitable Major Structures" which are designed primarily for human occupancy and are potential locations for shelter from storms. Typically included within this category are residences, hotels, commercial buildings, stores and restaurants.
Section 370.12, Florida Statutes, provides in pertinent part:
(1) PROTECTION OF MARINE TURTLES.–
(a) This subsection may be cited as the "Marine Turtle Protection Act."
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1. Unless otherwise provided by the federal Endangered Species Act or its implementing regulations, no person may take, possess, disturb, mutilate, destroy, cause to be destroyed, sell, offer for sale, transfer, molest, or harass any marine turtle or its nest or eggs at any time. For purposes of this subsection, "take" means an act which actually kills or injures marine turtles, and includes significant habitat modification or degradation that kills or injures marine turtles by significantly impairing essential behavioral patterns, such as breeding, feeding, or sheltering.
Any application for a department permit or other type of approval for an activity that affects marine turtles or their nests or habitat shall be subject to conditions and requirements for marine turtle protection as part of the permitting or approval process.
The department may condition the nature,
timing, and sequence of construction of permitted activities to provide protection to nesting marine turtles and hatchlings and their habitat pursuant to the provisions of s. 161.053(5). . . .
The department shall recommend denial of a permit application if the activity would result in a "take" as defined in this subsection, unless, as provided for in the federal Endangered Species Act and its implementing regulations, such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.
The evidence shows that the proposed beach access ramp is a minor structure.
The evidence shows that the construction of the beach access ramp will not result in a "take."
Pursuant to Section 161.053 and Rules 62B-33.005 and 62B-33.007, the proposed beach access ramp (the proposed structure) must be designed to minimize potential impacts of the proposed structure, including the potential cumulative effects of other proposed structures or activities in the area, on the
beach-dune system.
No permit can be issued for the proposed structure if it, either individually or cumulatively with other existing structures, will result in a significant adverse impact.
Rule 62B-33.005.
The evidence demonstrates that the impact of the proposed beach access ramp is minimal; that the construction or use of the beach access ramp will have no adverse effect on the marine turtle or the turtle nesting; and that the beach access
ramp will not cause significant adverse impacts or cumulative impacts.
Hence, the proposed beach access ramp meets the requirements of Section 161.053, Florida Statutes, and Chapter 62B-33, Florida Administrative Code.
The undersigned is not persuaded by two positions asserted by Mr. Broom, Mr. Geffen, and Mr. Jackson that (1) a material misrepresentation was made by the Town as to the use or purpose of the proposed beach access ramp beyond emergency access, i.e., routine patrol; and (2) they were denied proper notice and due process. The evidence is insufficient to support their positions. Even though the written documents and papers submitted to the DEP by the Town indicate that the proposed beach access ramp would be used for emergency access, not both emergency and routine patrol, public comment was requested and received by the DEP from the residents of Beachcomber Lane, including Mr. Broom, Mr. Geffen, and Mr. Jackson. Furthermore, prior to the issuance of DEP's Final Order, the Town noticed the residents of Beachcomber Lane of a public meeting in which public comments would be received regarding the proposed beach access ramp. At the public meeting, which was attended by residents of Beachcomber Lane, including Mr. Broom, Mr. Geffen, and
Mr. Jackson, both emergency and routine patrol access were presented as purposes for the access ramp and the residents made their positions known to the Town.
Additionally, the DEP, having considered both emergency and routine patrol access, did not deny the CCCL permit. Only another recommendation to protect marine turtles was made by the DEP, regarding the routine patrol.
RECOMMENDED that the Department of Environmental Protection enter a final order granting the Town of Indian River Shores the Coastal Construction Control Line Permit No. IR-507, with the special conditions as may be required by the Department for the protection of marine turtles.
DONE AND ENTERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1997.
1/ Mr. Broom and Mr. Jackson testified in their own behalf. Neither Mr. Broom nor Mr. Geffen nor Mr. Jackson presented any expert witnesses. Experts were presented by the Town and DEP in support of granting the permit.
2/ Insufficient evidence was presented to refute the Director's need assessment.
3/ A recommendation was also made in furtherance of the protection of the marine turtle that the "seaward terminus of the permitted access ramp shall not encroach closer than 10 feet from the crest of the dune." The Town agrees also to this recommendation.
Thomas I. Mayton, Jr., Esquire Department of Environmental
Theodore W. Herzog, Esquire
Town Of Indian River Shores Univest Building, Suite 501 2770 Indian River Boulevard Vero Beach, Florida 32960-4278
F. Perry Odem, General Counsel Department of Environmental Protection Office of the General Counsel
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
