STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELEANOR B. HUMPHRIES and ) CHARLES S. HUMPHRIES, )

)

Petitioners, )

)

vs. ) Case No. 01-2097

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Daytona Beach, Florida, on August 2, 2001.

APPEARANCES

For Petitioners: Robert R. Bullard, P.E.

Qualified Representative Absolute Engineering Group Post Office Box 269

Daytona Beach, Florida 32115

For Respondent: Francine M. Ffolkes

Senior Assistant General Counsel Timothy E. Dennis

Certified Legal Intern

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue is whether, pursuant to Section 161.053, Florida Statutes, and Rule 62B-33.005, Florida Administrative Code, Petitioners are entitled to a coastal construction control line permit to build a single-family residence in Volusia County with a structural elevation of 19 feet National Geodetic Vertical Datum, not 24 feet National Geodetic Vertical Datum, as required by Respondent.

PRELIMINARY STATEMENT

By letter dated June 5, 2000, Respondent advised Petitioners that it was approving a permit for construction seaward of the coastal construction control line, but Petitioners could not commence construction until after obtaining a Notice to Proceed under Special Permit Conditions 1 and 2 and complying with Special Permit Conditions 4 and 5.

Petitioners were dissatisfied with the requirement of Special Permit Condition 2 that raised the structural elevation of the proposed residence by five feet. Petitioners therefore requested a formal hearing.

At the hearing, Petitioners called three witnesses and offered into evidence seven exhibits. Respondent called two witnesses and offered into evidence seven exhibits. All exhibits were admitted.

The court reporter filed the transcript on September 5, 2001. The parties filed their proposed recommended orders by

September 20, 2001.

FINDINGS OF FACT

1. Petitioners own an undeveloped lot located at 4279 South Atlantic Avenue in the Wilbur-by-the-Sea subdivision in unincorporated Volusia County. Mr. Humphries' family has owned the lot for 50 years.

2. The rectangular lot is 210 feet deep and 50 feet wide.

   
   

   The narrower end abuts the Atlantic Ocean on the east and South Atlantic Avenue on the west.

3. The south boundary of Petitioners' lot abuts a developed lot. The house located on this lot has a finished- floor elevation of 26.15 feet National Geodetic Vertical Datum (NGVD). This is consistent with the structural elevations of most of the residences in the immediate vicinity of Petitioners' lot. Even though the seaward extent of Petitioner's proposed structure is roughly in a line with the seaward extent of the nearby homes, the issue in this case is the structural elevation.

4. The north boundary of Petitioners' lot abuts the 50- foot-wide right-of-way of Major Street. In 1984, a wooden walkway was constructed in the southern half of the Major Street right-of-way to allow pedestrians access to the beach. By that

   time, Major Street was no longer open for vehicular access. However, the construction and maintenance of Major Street may have contributed to the lower elevations on the north boundary of Petitioners' lot, as described below.

5. Nearly all of the lots in the vicinity of Petitioners' lot have been developed; most, if not all, of them contain single-family residences. Petitioners, who are nearing retirement, wish to construct a house that would accommodate them in their later years when they expect their mobility to be reduced.

6. Petitioners' house will sit atop a prominent secondary dune, as do all of the other oceanfront homes in the immediate vicinity. The house will also be confined roughly to the landward half of the lot. These factors mean that the relatively short driveway leading from South Atlantic Avenue to the garage will be relatively steep. Petitioners proposed a reduction in the top of the dune to reduce the steepness of the driveway and the difference in finished-floor elevations between the garage and the house.

7. Generally, the south side of Petitioners' lot is higher than the north side. The seasonal high water line is 8.4 feet NGVD. The lot's east boundary, which is 7-8 feet landward of the seasonal high water line, is about 11.5 feet NGVD.

8. The elevation of the south boundary rises to 28.5 feet NGVD, at a distance slightly east of the most seaward extent of the 10-foot wooden deck that is the most seaward structure proposed by Petitioners. The elevation of the north boundary does not rise much; over the same distance, it reaches only 12 feet NGVD.

9. Proceeding westward, toward South Atlantic Avenue, the south boundary drops from its 28.5-foot elevation. Parallel to the proposed house, the boundary remains at about 25 feet NGVD, except it drops to about 20 feet at the point where the house would meet the garage. For the length of the 26-foot garage, the south boundary drops to 18.5 feet NGVD. For the length of the 30-foot section of driveway between the garage and the west boundary, the south boundary drops from 18 feet NGVD to 17 feet NGVD.

10. The north boundary rises to its highest point, 20.6 feet NGVD, at a point just landward of the point along the boundary closest to the junction between the proposed wood deck and the house. Running parallel to the proposed house, the north boundary drops to about 18 feet NGVD (directly across from a point along the south boundary that reaches about 25 feet NGVD) and then to about 17.5 feet NGVD, at a point just landward of the point closest to the junction of the proposed house and garage.

11. The proposed house would occupy elevations, prior to proposed site preparation, of about 28 feet NGVD at the seaward side, 22-26 feet NGVD at the midpoint, and no more than 21 feet NGVD at the landward side. The proposed deck, house, and all but a sliver of the garage lie seaward of the coastal construction control line. The northeast corner of the proposed house is 72 feet seaward of the coastal construction control line.

12. The dune is largely vegetated. The vegetation includes sea oats, shrubs, and some palm trees, although Brazilian pepper, a nuisance exotic, also vegetates part of the dune. Just seaward of the southeast corner of the proposed deck is a hole, perhaps from past excavation, about ten feet deep and occupying 8-10 percent of the lot. This is the only portion of the lot significantly below-grade. Overall, the dune is functional and healthy. To the extent that it has been disturbed in the past, the dune seems to be recovering vigorously.

13. On or about July 21, 1999, Petitioners applied for a permit to construct a residence seaward of the coastal construction control line. In their application, Petitioners proposed a structural elevation of 19 feet NGVD. The structural elevation, which is about two feet lower than the finished-floor elevation, is the lowest portion of the effectively horizontal

    structural elements supporting the floors and walls of the structure.

14. Respondent's examination of the application raised concerns about the proposed structural elevation of 19 feet NGVD. The greater elevation of much of the dune under the footprint of the house would necessitate the relocation of dune materials on the lot or removal of dune materials off the lot. However, discussions between Respondent's representative and Mr. Bullard, Petitioners' engineer, failed to identify design modifications upon which both sides could agree.

15. Thus, on June 5, 2000, Respondent issued a Final Order and Notice to Proceed Withheld (Final Order). The Final Order states that Respondent found that Petitioners' application was complete on March 6, 2000. Although the Final Order generally contemplates that construction will eventually proceed, Special Permit Condition 1 prohibits construction until Respondent issued a written notice to proceed.

16. Special Permit Condition 2 warns that Respondent will not issue a notice to proceed until Petitioners submit plans that raise the structural elevation to 24 feet NGVD, relocate all excavated materials seaward of the coastal construction control line (but not more than 120 feet seaward of the line), prohibit net excavation seaward of the coastal construction control line, and specify the planting of all filled or

    disturbed areas with salt-resistant native vegetation transplanted from onsite areas that will be excavated and other sources, as needed.

17. Special Permit Condition 7 requires Petitioners to obtain the fill material from a source landward of the coastal construction control line. The fill material also must be of a sand that is similar to that onsite in terms of grain size and coloration. However, nothing in the Final Order specifies any requirement to replicate present--or design scientifically verified new--seaward and landward slopes of the portion of the impacted dune.

18. In resisting Respondent's demand to raise the structural elevation, Petitioners have sought to reduce the slope of their driveway, which involves traffic-safety issues in turning on and off busy South Atlantic Avenue, and eliminate the need for an extensive design modification to allow wheelchair- bound persons access to the house from the garage.

19. At the hearing, Petitioners offered mitigation in the form of an artificial dune to be constructed seaward of the residence with excavated materials. However, this proposal would destroy existing vegetation and failed to specify slopes, so that the artificial dune would likely suffer significant and rapid erosion.

20. Petitioners have failed to prove that their proposed construction activities, with a structural elevation of 19 feet NGVD, would not adversely impact the most prominent dune landward of the ocean, so as to reduce the existing ability of this dune to resist erosion and protect upland persons and property.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

22. Section 161.053(1)(a) notes that the Legislature has found that the "coastal barrier dunes adjacent to . . . beaches

    . . . represent one of the most valuable natural resources of Florida . . .." Section 161.053(1)(a) adds that it "is in the public interest to preserve and protect [the coastal barrier dunes] 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."

23. Based on these findings, Section 161.053(1)(a) states: "it is the intent of the Legislature to provide that [Respondent] establish coastal construction control lines . . .

    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." Section 161.053(1)(a) adds: "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 beach access."

24. Section 161.053(5)(a)3 allows Respondent to issue permits to build seaward of the coastal construction control line upon consideration of, among other things, "[p]otential 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 [Respondent] clearly justify such a permit[.]"

25. Rule 62B-33.005(2) requires Petitioners to show that its proposed design minimizes the proposed impacts to the beach- dune system and construction "will not result in a significant adverse impact."

26. Rule 62B-33.005(3)(a) provides that Respondent shall deny any application that, individually or cumulatively, would result in a "significant adverse impact." Rule 62B-33.005(3)(b) requires that the applicant minimize these adverse impacts.

27. In relevant part, Rule 62B-33.005(4) requires Petitioners to show:

    1. 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;

       
       

    2. The construction will not result in removal or destruction 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 or the system to resist erosion during a storm or lowering existing levels of storm protection to upland properties and structures; [and]

       
       

    3. The construction will not result in the net excavation of the in situ sandy soils seaward of the control line . . ..

       
       

28. Rule 62B-33.005(5) provides: "[s]andy material excavated seaward of the control line . . . shall remain seaward of the control line . . . and be placed in the immediate area of construction unless otherwise specifically authorized by the permit."

29. As the applicants, Petitioners bear the burden of proof. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

30. Conceding that the dune on which they propose to build their residence is a "significant dune," Petitioners have failed to prove their entitlement to a permit allowing the construction

    of a residence with a structural elevation of only 19 feet NGVD. A structural elevation of 19 feet NGVD, given the prevailing dune elevations of 24 feet NGVD at the midpoint and 28 feet NGVD along the seaward end, necessitates the removal of a considerable volume of dune. Removing this much dune material from the lot would substantially reduce the volume of the dune and its ability to protect the adjacent beach and upland persons and property.

31. Retaining this much dune material on the lot and, necessarily, recontouring the dune would also undermine the viability of the dune and its protective abilities. The stability of the existing dune is attributable to its vegetative cover and slopes. Moving excavated sand would necessarily cover this vegetation and alter these slopes.

32. At the request of the Administrative Law Judge during the hearing, Respondent addressed in its proposed recommended order several alternatives in case Respondent failed to prevail in its main defense of the 24-foot NGVD structural elevation. However, the record does not provide reasonable assurance that any of these alternatives would provide adequate protection to the dune system.

33. The only mitigative measure mentioned at the hearing that would maintain or even enhance the protective function of the existing dune would be to allow Petitioners to fill the ten-

foot-deep hole in the dune, just seaward of the southeast corner of the proposed structure. Even at a structural elevation of 24 feet NGVD, dune materials will be removed. Presumably, the preconstruction discussions required by the Final Order will involve a decision by Respondent as to whether the dune is best protected by relocating these excavated materials into the ten- foot-deep hole. The present record does not permit a finding that filling the hole would help protect the dune and, if so, whether the capacity of the hole is sufficient to allow Petitioners to reduce the structural elevation of the proposed residence below 24 feet NGVD.

RECOMMENDATION

It is

RECOMMENDED that the Department of Environmental Protection enter a final order dismissing Petitioners' challenge and issuing the Final Order and Notice to Proceed Withheld dated June 5, 2000.

DONE AND ENTERED this 7th day of November, 2001, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2001.

COPIES FURNISHED:

David P. Struhs, Secretary

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Teri L. Donaldson, General Counsel Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kathy C. Carter, Agency Clerk Office of General Counsel

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Robert R. Bullard, P.E. Qualified Representative Absolute Engineering Group Post Office Box 269

Daytona Beach, Florida 32115

Francine M. Ffolkes

Senior Assistant General Counsel Timothy E. Dennis

Certified Legal Intern

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 01-002097

Orders for Case No: 01-002097