STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CAROLE C. POPE, )
)
Petitioner, )
)
vs. )
) CLIFFORD S. RAY, MARIA S. RAY, ) and DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondents. )
Case No. 03-3981
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, David M. Maloney, held a final hearing in the above-styled case on January 20 through 23, 2004, in Cocoa, Florida.
APPEARANCES
For Petitioner: Ross S. Burnaman, Esquire
1018 Holland Drive
Tallahassee, Florida 32301-4508 For Respondents Clifford S. Ray and Maria S. Ray:
Wilbur E. Brewton, Esquire Kenneth J. Plante, Esquire Roetzel & Andress
225 South Adams Street, Suite 250 Post Office Box 10369 Tallahassee, Florida 32302-2369
For Respondent Department of Environmental Protection:
Charles T. "Chip" Collette, Esquire Mark S. Miller, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
Whether the permit application of Clifford S. and Maria Ray (the "Rays") meets the statutory and rule requirements for the Department of Environmental Protection ("DEP" or the "Department") to issue to the Rays a permit to construct a multi- family dwelling and related structures seaward of the coastal construction control line ("CCCL") on their property in Brevard County?
PRELIMINARY STATEMENT
In January of 2003, the Rays applied for a permit to construct seaward of the CCCL a multi-family dwelling and related structures on their property in Brevard County, Florida.
Pursuant to a request by DEP, the Rays submitted additional information related to the application. On April 21, 2003, the Department deemed the application complete.
Slightly less than five months later, the Department issued Permit No. BE-1083 (the "Permit") to the Rays. The Permit, dated September 19, 2003, authorizes the construction of the multi- family dwelling and related activities described in the "Project
Description" portion of the Permit. See Respondents' Ex. 1, Vol. 2, Tab 22, PERMIT FOR CONSTRUCTION OR OTHER ACTIVITIES PURSUANT TO SECTION 161.053, FLORIDA STATUTES, FINAL ORDER, PERMIT NUMBER: BE-1083.
A timely petition challenging the issuance of the Permit was filed with DEP by Petitioner, Carole C. Pope. The petition was transmitted by DEP to the Division of Administrative Hearings ("DOAH") on October 23, 2003, under cover of a document entitled "REQUEST FOR ASSIGNMENT OF ADMINISTRATIVE LAW JUDGE AND NOTICE OF
PRESERVATION OF RECORD" ("DEP's Request"). In DEP's Request, the Department announced that the Secretary of DEP had decided not to act as the officer presiding over Mrs. Pope's petition and requested that DOAH "assign this matter to an [administrative law judge] to conduct all necessary proceedings required by law and to submit a recommended order to the Department."
Initially consolidated with two rule-related challenges (the "Rule-related Cases") also filed by Petitioner, (DOAH Case Nos.
03-3860RX and 03-3861RU), the Permit Case was severed from the other two by Order dated November 6, 2003. The effect of the severance was to allow the Permit Case and the Rule-related Cases to proceed unencumbered by each other.
Within a few weeks, a Final Order was issued in the Rule- related Cases. The Final Order, rendered November 24, 2003, determined both that Florida Administrative Code Rule 62B-
33.008(4)(d), a rule applied in the Permit Case, is not an invalid delegation of legislative authority and that a statement made by a DEP employee to Mrs. Pope about the Rays' application did not violate a section of Florida Administrative Procedure Act related to rule-making. Upon motion by Petitioner, by Order dated December 30, 2003, in this case, official recognition was taken of the orders issued and the evidence received in the Rule- related Cases. Official recognition was also taken of Sections 161.021, 161.052, and 161.053, Florida Statutes, and Florida Administrative Code Rules 62B-33.002, 62B-33.005, 62B-33.007, and 62B-33.008 as filed with DOAH.
In the meantime, motion practice proceeded in the Permit Case. On December 11, 2003, Mrs. Pope filed a Motion for Leave to Amend her Petition together with the Amended Petition. The motion was granted without objection on January 7, 2004. On December 17, 2003, Mrs. Pope filed a Motion in Limine. It requested that the ALJ "limit evidence and testimony as to the provisions of the Brevard County setback requirements, zoning codes, and building codes in effect at the time of agency action in the case . . . and to exclude evidence as to whether the Department's proposed CCCL permit does not contravene Brevard County setback requirements, zoning codes, and building codes in effect at some time earlier."
After responses filed by the Department and the Rays, the motion was denied without prejudice on January 7, 2004, and Respondents were given leave to file a memorandum of law as to whether an exception to the general rule in Lavernia v.
Department of Professional Regulation, Bd. Of Medicine, 616 So. 2d 53 (Fla. 1st DCA 1993), applies. By the same Order, Mrs. Pope was given the opportunity to file a memorandum in response.
Memoranda of law were filed by all parties. Among the arguments and claims raised by the filings, of particular note is the Rays' claim that Mrs. Pope is estopped from claiming that activity seaward of the CCCL would contravene local legal requirements and be inconsistent with the Brevard County Comprehensive Plan.
Upon consideration of the memoranda, an Order was entered on January 13, 2004. The Order left undisturbed the prior Order denying the motion in limine and informed the parties of a range of evidence that might be introduced by each to support that party's theory of the applicability of Lavernia. Most noteworthy, the Rays were allowed to "introduce evidence in support of their conviction that they have a vested right in a site development plan and that Petitioner is estopped from seeking application of the current Brevard County Code." Order, entered January 13, 2004, p. 2.
On the same day as the January 13 Order, Mrs. Pope filed a Request for Official Recognition "of the provisions of the Brevard County Code and comprehensive plan" previously submitted to the Court as an appendix to Petitioner's Memorandum of Law.
The Department filed an objection citing multiple grounds. Three days later, on January 16, 2003, a Pre-hearing Stipulation was filed with the Court.
As noticed, the case proceeded to final hearing on
January 20, 2004, in Cocoa, Florida. At commencement, argument was presented by the parties on Mrs. Pope's pending request for official recognition. Pending the presentation of evidence, ruling was reserved in light of the Rays' claim of collateral estoppel. Ultimately, it was determined that official recognition would not be taken of the current Brevard County Code. Such a determination was deemed to be of no moment because Mrs. Pope was adjudged estopped from claiming that the activity seaward of the CCCL preliminarily permitted by DEP both contravened local requirements in the code (current or as it existed at earlier relevant dates) and was inconsistent with the Local Comprehensive Plan.
As the applicants and the parties with the burden of proof, the Rays proceeded first at final hearing. They called four (4) witnesses: Joyce Gumpher, an expert in managing and submitting applications for CCCL permits to DEP; Stephen Boehning, P.E., an
expert in CCCL permitting and engineering; Srinivas Tammisetti, P.E., a DEP employee and an expert in coastal engineering and CCCL permitting; and David L. Bryant, an expert in structural engineering.
The Department, as a co-Respondent with the Rays and a party in support of approval of the Rays' application, proceeded next. It presented the testimony of Tony D. McNeal, P.E., an employee of the Department who heads the CCCL permitting program and supervises Mr. Tammisetti. Mr. McNeal provided fact testimony and offered expert opinion in "the application of Departmental statutes and rules as the Department interprets and applies them in the coastal construction control line process," for which he was deemed duly qualified.
Mrs. Pope presented her own testimony as a fact witness as well as the fact testimony of Gene Verano, the third employee of the Department to testify. Mrs. Pope called three non- Departmental witnesses tendered and accepted in fields of expertise as indicated: David Block, Ph.D., engineering;
Lee Harris, Ph.D., coastal engineering; and Don Spence, native vegetation and dune systems. Petitioner also called Mr. McNeal as both a fact and expert witness (in the field tendered by the Department in which he was accepted as an expert.)
Respondents, the Rays and DEP, offered jointly ten exhibits, marked for identification as Respondents' 1, 2, and 4 through 11.
(Respondents' 1 and 4 were composite exhibits. Respondents' 1 consisted of two volumes of copies of the Rays' permit application and a survey; Respondents' 4 consisted of a series of videotapes of three meetings of the Brevard County Commission.
Respondents' 3 was marked at some point in the proceeding but not offered.) The ten exhibits offered by Respondents were all admitted into evidence at hearing with the exception of Respondents' 6. With regard to the latter exhibit, Petitioner was afforded until January 28, 2004, to review the exhibit and file any objection in writing with DOAH. No objections were filed to Respondents' 6; hence it stands admitted into evidence.
Mrs. Pope submitted 22 exhibits to be marked for identification during the proceeding. Of these, fifteen were both offered and admitted into evidence: Pope 1-7, 10, 13-17, 19
and 20. Pope 8, 9, 18 and 21 were not offered. Pope 11 and 12 were offered, rejected, and then proffered. Pope 22 was offered and rejected but not proffered. Mrs. Pope was given leave to file an exhibit containing photographs discussed by Mr. Verano during his testimony, but the exhibit was not filed.
Following the close of the Respondents' case-in-chief, a ruling was entered that a Brevard County Land Development Site- Plan Approval (issued on December 30, 2003) collaterally estopped Mrs. Pope from claiming that the Permit preliminarily approved by DEP contravened the Brevard County Code, setback, zoning
requirements or was not consistent with the Brevard County Comprehensive Plan. A discussion of the facts upon which the ruling was based is contained in the findings of fact of this order. The ruling did not foreclose Mrs. Pope from presenting evidence with respect to whether the activity preliminarily permitted by DEP contravened applicable building codes.
Mrs. Pope was allowed, moreover, to proffer evidence with respect to the issues barred by the application of the doctrine of collateral estoppel.
A transcript of the final hearing was not filed. The parties' proposed orders, therefore due Monday, February 2, 2004, under Florida Administrative Code Rule 28-106.216, were timely filed. This Recommended Order follows. All Florida statutory citations are to Florida Statutes (2003) unless otherwise
specified.
FINDINGS OF FACT
Legislative Intent re: Beaches and Coastal Barrier Dunes
The Legislature has declared that the beaches and the coastal barrier dunes in this state, subject by their nature to severe fluctuations, represent one of the most valuable resources of Florida. See § 161.053(1)(a), Fla. Stat.
The Legislature has further declared that it is in the public interest to preserve and protect the beaches and dunes from imprudent construction because it 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." Id.
The Legislature has therefore directed the Department of Environmental Protection "on a county basis along the sand beaches of the state fronting the Atlantic Ocean [and other salt water bodies]" to "establish coastal construction control lines." Id.
The "Coastal Construction Control Line"
A line of jurisdiction, rather than a line of prohibition, the Coastal Construction Control Line (the "CCCL or the "Control Line") is defined in Chapter 62B-331 of the Florida Administrative Code. The Control Line is:
the line established pursuant to provisions of Section 161.053, F.S., and recorded in the official records of the county, which defines that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions.
Fla. Admin. Code. R. 62B-33.002(12).
The Department's Office of Beaches and Coastal Systems has regulatory authority to permit or deny construction seaward of the Control Line pursuant to statutory and rule criteria. This proceeding concerns the exercise of that authority in the form of issuance of a permit for activity seaward of the Control Line in Brevard County.
Brevard County's Control Line
The Control Line in Brevard County was established by the Department of Natural Resources, an agency of the state and a predecessor of DEP, in 1981 (the "1981 CCCL").
A second Control Line in Brevard County was established in 1986, again by the Department of Natural Resources. It is approximately 150 feet landward of the 1981 CCCL. It will be referred to in this order as "the CCCL" or "the Control Line." The line established in 1981 will be referred to as the "1981 CCCL," to distinguish it from the Control Line established in 1986, the Coastal Construction Control Line applicable to this proceeding.
The Parties
Mrs. Pope
Petitioner, Carole C. Pope, owns with her husband James M. Pope, oceanfront property located at Wilson Avenue, Brevard County, Florida, where the Popes reside part time. The Popes' property has a Cocoa Beach mailing address, but is not within the city limits of Cocoa Beach.
Littoral to the Atlantic Ocean, the Popes' property was identified in the pre-hearing stipulation in the Rule-related Cases (discussed in this Order's Preliminary Statement) as "Lot 11, Block 101, Avon by the Sea as described in Plat Book 3, page
7 [presumably the Official Records of Brevard County] and east
to Ocean, except the west 13 feet of Lot 11." See Final Order, Pope v. Department of Environmental Protection et al., Case No. 03-3860RX, paragraph 7, page 9.
The Popes have two duplex units on their property.
Built in the 1950's, they consist of concrete foundations, block walls, and 10-foot-high flat roofs.
Mrs. Pope and her husband have retained the native, salt-tolerant vegetation that surrounds the duplexes. Protective of the property because it serves to enhance and stabilize the primary/frontal dune, it also adds to Mrs. Pope's
enjoyment and use of her property. She enjoys the native flora, an integral part of the habitat of native fauna (gopher tortoises and indigo snakes, for example) that she enjoys watching. She particularly enjoys feeding and interacting with the sociable scrub jay.
The Department and its Office of Beaches and Coastal Systems
The Department is responsible for the administration of Parts I and II of Chapter 161, Florida Statutes, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control lines; activities seaward of the coastal construction control line; exemptions;
property owner agreements; delegation of the program; permitting programs; and violations and penalties." § 161.053 (21), Fla.
Stat.
Pursuant to its rule-making authority in Section
161.053 (together with other specific authority), Florida Statutes, the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)." The Office is in the Department. Fla. Admin. Code R. 62B-33.002(11).
Permits for construction or other activities seaward of the construction control line, such as the permit in this case, are issued pursuant to Section 161.053, Florida Statutes, by the Program Administrator of the Bureau of Beaches and Wetland Resources on behalf of the Department. See Respondents 1, Vol. 2, Tab 22.
The Department has not delegated Chapter 161 permitting authority to Brevard County.
The Rays
Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No. BE-1083, preliminarily issued by the Department in its final order of September 19, 2003.
The property consists of four 50-foot-wide lots, Lots 12, 13, 14 and 15 in Avon by the Sea. Lot 12 is immediately adjacent to Mrs. Pope's property. Some of the native vegetation on the property has been disturbed by the planting of sod and installation of an irrigation system seaward of the Brevard County coastal setback line and the Control Line. The activity is the subject of administrative enforcement actions by the County and DEP. Although government claims of violations had not been resolved finally as of the date of hearing, the Rays have not resisted the claims.
The Permit was issued to the Rays under the authority of Section 161.053, Florida Statutes. It authorizes activities on the Ray property seaward of the CCCL. This activity includes the construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry wall and an exfiltration trench, as described in more detail in the section of the Permit entitled "PROJECT DESCRIPTION." Respondents Ex. 1, Vol. 2, Tab 22, Permit No. BE- 1083, p. 2-3. The Department was not aware of the claims of violations made against the Rays referred-to above at the time that Mr. Tammisetti, the engineer assigned to review the permit file initially, recommended that the permit be issued. Had Mr. Tammisetti been aware of the claims he still would have recommended issuance of the permit.
Coastal Systems and Fixed Coastal Cells
The term "Coastal System" is defined by the Department in its rules:
"Coastal System" is the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and structures.
Fla. Admin. Code R. 62B-33.002(13).
Within the coastal system are "fixed coastal cells," also defined by Department rule:
"Fixed Coastal Cell" is a geomorphological component of the coastal system which is closely linked internally by active physical processes and is bounded by physical features which exercise a major control on refraction patterns or which compartmentalize or severely limit longshore sediment such as headlands or inlets.
Fla. Admin. Code R. 62B-33.002(24). Within and adjacent to a fixed coastal cell of Florida's coastal system lie sea, shore, beach, dune system, vegetation, uplands and structures with which this proceeding is concerned.
The Beach and Dune System within the Fixed Coastal Cell
The Ray property and the Pope property are located in a fixed coastal cell that extends from Canaveral Inlet (north of
R014, one of a series of coastal monuments installed by the state) southward to Monument R050. The community in which the property is situated is a "Coastal Uplands: Beach Dune" community characterized by a beach and dune system.
There is one primary/frontal dune with a height at the top of the bank of about 13.4 feet NGVD seaward of the proposed project. The portion of property on which the project is sited is between 7.3 and 10.7 feet NGVD.
The most recent DEP design wave height elevation for R015 is 14.2 feet NGVD, higher than the existing dune elevation at the Ray property. Much of the Ray property behind the dune is lower in elevation than the elevation of contiguous properties, the likely result of persistent cutting of native vegetation that acts to intercept wind-blown sand as it moves along the shoreline.
Beach and Dune Data in DEP File BE-1083
In the application review process, Mr. Tammisetti submitted a memorandum dated May 24, 2001, to Mr. McNeal. The memorandum appears to have been a form with blanks into which information was inserted or handwritten close to the appropriate blank. For example, under Section I., of the form "PROPOSED PROJECT" is "A. Project Location:", followed by a description with blanks left for number of feet, direction (north, south, east, west) reference monument number, county and project
address. Handwriting close to the blanks leads one to understand or gather that it intends to communicate the following statements:
The location of this project is approximately 100 feet N to 103 feet S of the Department of Environmental Protection's Reference Monument R-15, in Brevard County. Project Address: Harding Ave, Cape Canaveral.
This is within the local jurisdiction of Brevard County.
Respondents 1, Vol. 2, Tab 13.
The form also contains Section II., "CHARACTERIZATION OF BEACH/DUNE SYSTEM". The section calls for three categories of characterization: A., a general description; B., beach topography in terms of shoreline alignment, berm width in feet, berm elevation in feet (NGVD), direction of net littoral transport, volume of net littoral transport in cubic yards per year, and general conditions; and C., Primary Dune/Bluff Topography with dune width in feet. None of the information called for by this section has been filled in on the form.
At hearing, Mr. Tammisetti testified2 that berm width was 220 feet and the berm elevation ranged from 3 to 10 feet NGVD. He testified that the direction of littoral transport was north to south but he did not know the volume of net littoral transport. He stated that the "general site condition" was an
eroding shoreline. He estimated the dune width at between 30 to
40 feet.
These facts and figures exist under an overarching consideration. The beach near R015 that fronts the Pope and Ray property is critically eroding.3
Vegetation on the Ray Property
There is a sea grape cluster and numerous palm trees on the Ray property. The seaward most continuous line of native salt-resistant vegetation or the "vegetation line" is near the line at the toe of the slope of the dune bank depicted on the topographic survey drawing submitted as part of the application.
Nanette Church, at the time an employee of Brevard County, visited the site on July 1, 2003. She documented the presence of fresh sod and a new irrigation system installed seaward of the County's coastal setback line, a line parallel to and 25-feet landward of the 1981 CCCL.
Two days later, DEP Inspector Gene Verano conducted a site inspection and documented the placement of sod and the installation of an extensive irrigation system.
On July 31, 2003, the Department under the signature of Jim Martinello, an Environmental Manager in the Bureau of Beaches and Wetland Resources, issued a warning letter to
Mr. Ray with regard to "POSSIBLE UNAUTHORIZED ACTIVITIES SEAWARD
OF THE COASTAL CONSTRUCTION CONTROL LINE." The letter reads, in
part,
Pope 3.
[I]t appears that you have again been engaged in unauthorized activities on your property located approximately 100 feet north to 100 feet south of the Department of Environmental Protection's reference monument R-15, in Cocoa Beach, in Brevard County, Florida. The possible violation consists of the destruction/removal of native vegetation and placement of sod and an irrigation system seaward of the coastal construction control line without benefit of a permit from the [department.]
The sod seaward of the CCCL has a negative effect on the stability of the dune system. A weakened dune system allows for storm surge and overwash to breach the dune and cause washout on the landward side of the dunes.
Brevard County has not yet issued a land clearing or landscape permit to the Rays. A "Brevard County Land Development Site-Plan Approval" with an approval date of December 30, 2003, warned, "[i]t is the responsibility of the Owner/Engineer of Record to contact Office Natural Resources for a Land Clearing/Landscaping Permit." Respondents' 1, Vol. 1, Tab 12.
The Rays are not contesting County or DEP enforcement actions relative to the land clearing, sod placement, and irrigation system installation.
Project Description
The project proposed by the Rays is to be located on their property in the unincorporated area of Brevard County known as "Avon-by-the-Sea," in the vicinity of Department monument R-015. The project is known by Brevard County as the Ray Condos and also as the Michelina Condominium.
The location of the multi-family dwelling relative to the Control Line is "[a] maximum of 105.56 feet seaward." Id. Its exterior dimensions are "209.67 feet in the shore normal direction by 84 feet in the shore-parallel direction." Id. The type of foundation is "Pile." Id. There is no mention in the Permit of the height of the building.
The swimming pool is described in the Permit in detail with regard to its dimensions and location (a maximum of 101.49 feet seaward of the control line), the type of construction and its maximum depth: six feet.
Excavation/Fill for the project is described in terms of volume of excavation, its location, volume of fill as replacement, and location of fill. The Excavation/Fill description is subject to Special Permit Condition 6. Among other provisions of the condition, the fill is to be "from a source landward of the control line and shall consist of sand which is similar to that already on the site in both grain size and coloration." Id., p. 4.
Other permitted structures and activities are listed and described in the Permit with reference to special permit conditions:
A wooden beach/dune walkway structure of dimensions 174 feet shore-normal by 4 feet shore-parallel is to be located seaward of the control line. See Special Condition 7.
A 4-foot to 14-foot swimming pool deck attached to the periphery of the swimming pool is to be located a maximum of 105.96 [feet] seaward of the control line. See Special Permit Condition 2.1.
Paver-block parking area on the south side of the proposed dwelling.
Masonry walls along the north and south property lines to extend a maximum of 105 feet seaward of the control line. See Special Permit Condition 2.2.
An exfiltration system trench on the south side of the proposed dwelling.
Among nine special conditions in the Permit are that no work can be conducted until a DEP "notice to proceed" has been received by the Rays. Another is that prior to the issuance of such a notice "two copies of detailed final site and grading plans and specifications" shall be submitted including two sets of landscape drawings. Id., p. 3, Special Permit Condition 2. See id., 2.3.
The landscape plan must be submitted to Brevard County for approval under the Permit's special conditions. Given Brevard County's requirement that the Rays secure a Land
Clearing/Landscaping Permit, there will be an ongoing process that poses the potential to ensure that the Rays' project will be designed to minimize the impact on native vegetation. The process also may require a restoration plan, as well, for the impact to native vegetation caused by the sod and the irrigation system. The Rays have submitted such a plan to the County.
Relationship of the Proposed Project to the Pope Property
The proposed multi-family dwelling is sited 10 feet south of the northern property line (the line that serves as the southern boundary of the Pope property). Ten feet is the minimum setback from adjacent property allowed by the county.
The duplexes on the Pope property are situated in a range from 3.5 to 4.5 feet from the property line (the border with the Ray property.) The project, therefore, is proposed to be as close as 13.5 feet of the Pope duplexes. If built, running the length of the duplexes, it would create a relatively narrow space between the proposed structure and the Popes' duplexes that ranges from 13.5 feet to 14.5 in width.
The Application
The Rays submitted their CCCL permit application to the Department through their agent, Joyce Gumpher. On
January 24, 2003, Ms. Gumpher executed a certification "that all information submitted with this application is true and complete to the best of [her] knowledge." Respondents Ex. 6, APPLICATION
FOR A PERMIT FOR CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE OR FIFTY-FOOT SETBACK. The
application was received by DEP on January 27, 2003. Additional information was requested by the Department. On April 21, 2003, the Department deemed the application complete.
During the application process, several plan sheets were revised. Revised plan sheets were submitted after the application was deemed complete (see Respondents' Ex. 6,
July 29, 2003 plans and September 5, 2003 plans) and once prior to DEP's determination of its completeness. (see id., April 7,
2003 plans).
Review of the Application
On August 26, 2003, Mr. Tammisetti submitted a memorandum to Mr. McNeal that recommended approval of the application with special permit conditions. The memorandum, similar in form to the memorandum submitted on May 24, 2001, except for the lack of Part II., is entitled "Description of Beach and Dune System Fronting the Subject Property and an Analysis of Impacts to be Expected From the Proposed Construction." Respondents 1, Vol. 2, Tab 20. It describes the proposed project but, lacking Part II., it neither characterizes nor describes the beach/dune system. Nor does it analyze the impacts of the proposed project other than to provide the "final comment" that "[t]he proposed project is landward of line of
construction and 30-year erosion project. Impactive shore- parallel coverage is approximately 72%." Id., p. 3.
Under its rules, after reviewing all information required, the Department is mandated to:
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 similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effect of the construction on the coastal system and marine turtles.
* * *
Require siting and design criteria that minimize adverse impacts and mitigation of adverse or other impacts.
Fla. Admin. Code R. 62B-33.005(3). As found earlier, the file in BE-1083 does not contain any documentation that the Department conducted the impact assessments required by the rule.
Nonetheless, the Department based its evaluation on the portion of the fixed coastal cell from just north of R013 to approximately 400 feet south of R017 depicted on Respondents' 7.
Respondents' 7
Respondents' 7 is an aerial photograph of developed uplands and off shore waters of the Atlantic Ocean in between which is the shore line and a stretch of beach in Brevard County. The sandy beach in the photo runs from north to south from Monument R013 to approximately 400 feet south of Monument R017, five monuments in a series set by the state along the Brevard County coast.
The photograph is data the Department reviewed to determine if existing structures established a "reasonably continuous and uniform construction line closer to the mean high water line than [the coastal construction control Line]."
§ 161.053(5)(b), Fla. Stat. (This "reasonably continuous and uniform construction line" will be referred to as the "Construction Line" in this order.) The Pope property and the Ray property both straddle the Construction Line.
The photograph shows four structures (the "Four Structures") that were determined by DEP to establish the Construction Line. Two are to the north of the Ray property; two are to the south.
Of the two structures to the north, the closest is between 400 and 450 feet north of the northern boundary of the Ray property. It sits between Monument R015 and R014. The other structure to the north used to establish the Construction
Line lies between Monument R014 and R013. Its southernmost corner is approximately 1200 feet to the north of the northern boundary of the Ray property.
The roof of the closest of the Four Structures to the south, lying between Monument R015 and R016, viewed from the air above is rectangular indicating the structure to have a rectangular footprint. Positioned at an angle to the coast, its southeastern corner is along the 1981 CCCL. That corner is approximately 400 feet south of the southern boundary of the Ray property. The second structure to the south sits between R016 and R017. Its northernmost corner is roughly 850 feet south of the southern boundary of the Ray property.
The Application Rule
Florida Administrative Code Rule 62B-33.008(4), entitled "Permit Application Requirements and Procedures" (the "Application Rule"), requires that the Rays' application contain certain specific information, including that identified in subsection (f):
Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of the application.
The rule further calls for the topographic survey drawing to include specific information such as "[t]he location of any
existing vegetation line on the subject property." Fla. Admin. Code R. 62B-33.008(4)(f)9.
The topographic survey drawing submitted as part of the application in January of 2003 reveals a survey date of "7/17/02." Respondent's Ex. 1, Sketch of Boundary and Topographic Survey, Lots 12-15, Block 101, Avon by the Sea, Brevard County, Florida. Other than the date of the survey, the evidence at hearing did not reveal when the fieldwork in support of the survey was conducted.4 In all likelihood the fieldwork was conducted close to July 17, 2002, but obviously prior to July 17, 2002. Whether the date of the application is considered to be the date of Ms. Gumpher's certification (January 24, 2003), or the date of its receipt by DEP
(January 27, 2003), it does not depict "field survey work performed not more than six months prior to the date of the application." January 24, 2003, is six months and one week after July 17, 2002. January 27, 2003, is six months and 10 days after the date of the survey.
The Vegetation Line
The topographic survey drawing submitted as part of the application did not meet precisely the requirements of the Application Rule in several other ways. For one, it did not label the location of "any existing vegetation line on the subject property."
At hearing, the Rays submitted a revised copy of the topographic survey drawing (still dated "7/17/02"). The revision labels a line indicated on the originally submitted topographic survey drawing as "TOE OF SLOPE" (within a few feet of the top of the dune bank) as "TOE OF SLOPE AND VEGETATION LINE." Thus, it is apparent that the originally submitted topographic survey drawing depicted the vegetation line; it merely failed in its labeling of the vegetation line.
The Department, once it became aware of the omission of a reference to a vegetation line in the original submission, waived the requirement for one. At hearing, Mr. McNeal testified that the waiver was authorized by subsection (7) of the Application Requirements and Procedures Rule:
The Department recognizes that the requirements specified in paragraphs 62B- 33.008(4). . . (f) . . ., F.A.C. may not,
due to the project circumstances, be applicable or necessary to ensure protection to the beach and dune system. In such cases, the applicant shall, as part of the application, identify those requirements and state the reason why they are inapplicable. The Department shall waive requirements that do not apply.
Fla. Admin. Code R. 62B-33.008(7).
There is no evidence of record that the Rays informed DEP of a position that the "location of the vegetation line" on the topographic survey drawing was a requirement inapplicable or unnecessary to ensure protection to the beach and dune system.5
Nonetheless, construing its waiver authority to be broader than authority limited to cases in which identification of inapplicable and unnecessary requirements had been made by those seeking DEP waivers, the Department waived the requirement.
The waiver was based on knowledge gained from the experience of DEP employees. The employees (Mr. Tammisetti and Mr. McNeal) knew that the vegetation line would be close to the top of the dune bank line and the toe of slope line, both of which were located on the topographic survey drawing.6
Respondents' 2 supports the Department's waiver since it labels the vegetation line where the Department roughly expected it to be.
Complete Dimensions and Distance Perpendicular
The Application Rule further demands that the topographic survey drawing contain:
15. Accurate dimensions and locations of the foundation outlines of any structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of Section 161.053(5)(b) or 161.052(2)(b), F.S., and the distance perpendicular [the "Distance Perpendicular"] from the CCCL or 50-foot setback to the seaward corners of the foundations of any major structures . . . .
Fla. Admin. Code R. 62B-33.008(4)(f).
The application contained the dimensions and locations of the two (2) duplexes located on the Pope property, that is, the adjacent area to the north of the Ray property. With regard to the adjacent area to the south of the Ray property, the application contained the seaward dimensions and locations of the major structure that makes up the Discovery Beach Resort structure.
The topographic survey drawing did not contain the dimensions of the complete footprint of the Discovery Beach Resort. Nor did it contain the distance perpendicular from the CCCL or 50-foot setback to the seaward corners of the foundations of all major structures depicted.
Mr. McNeal noticed that required elements were missing from the application. When he made the permitting decision, he waived them pursuant to a delegation of authority from the Office of Beaches and Coastal Systems.
Delegations of Authority Office of Beaches and Coastal Systems
The Director of the Office of Beaches and Coastal Systems has delegated certain authority to subordinates in the Office of Beaches and Coastal Systems with respect to the CCCL permitting program. The delegations, as reflected in a document entitled "Delegations of Authority, OFFICE OF BEACHES AND
COASTAL SYSTEMS" (Pope Ex. 1), is to "the Director of Office of Beaches and Coastal Systems, or his/her designee." Id., 3.a.
As the administrator of the CCCL program within the Bureau of Beaches and Wetlands Resources, Mr. McNeal has been delegated authority under Delegation "OBCS-9" (id., p. 14 of 24), to "[t]ake final agency action on permit applications . . . pursuant to Sections . . . 161.053 . . ., Florida Statutes, and Rule 62B-33, F.A.C., [subject to exceptions immaterial to this proceeding.]" Id.
The authority so delegated is not without limitation.
Among limitations enumerated and express in the Delegations of Authority document is that "[t]the exercise of any delegated authority shall conform with all statutes and rules applicable to the DEP." Id., 3.a.
Waivers Pursuant to Delegated Authority
Pursuant to the authority over final agency action on CCCL permit applications, Mr. McNeal, as the head of the CCCL Program in the Office of Beaches and Shores, waived the depiction of the location of the vegetation line on the topographic survey drawing, the full dimensions of the Discovery Resort in the adjacent area to the south of the Ray property and the notation of the Distances Perpendicular. He did so because the information contained on the topographic survey drawing was sufficient, in his view, to allow the Department to perform the
calculations and analyses as part of the application process that would be served by a review of the topographic survey drawing. An example has been alluded to in this order. Based on years of collective experience, Mr. McNeal and Mr. Tammisetti concluded it was reasonable to assume the vegetation line would be very near the toe of the slope line in relation to the dune bank. Their assumptions were proved correct at hearing.
The dimensions and locations of the major structures located immediately north and south of the proposed project (the Pope duplexes and the Discovery Resort structure) and the Distances Perpendicular were required to be included on the topographic survey drawing, but they were not intended by the Rays to establish a Construction Line.
Establishment of any such line is governed by Section 161.053(5)(b), Florida Statutes:
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 [the CCCL], 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 [and other conditions are met].
A Construction Line
The Rays contend in their application and DEP agrees that the Four Structures establish a Construction Line.
Once such a line is established provided the structures are not duly affected by erosion, the Department is conferred with the discretion to permit a proposed structure along the line seaward of the CCCL under certain circumstances. See § 161.053(5)(b), Fla. Stat. Among those circumstances, the permit "shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided [by statute.]" § 161.053(5)(b), Fla. Stat. Furthermore, by rule of the Department, written evidence from local government must be provided that the location of the proposed structure along a Construction Line seaward of the CCCL is consistent with the Local Comprehensive Plan. See Fla. Admin. Code R. 62b-33. Written evidence that Brevard County regards the Rays' proposed site to be consistent with Local Comprehensive Plan and not contrary to local setback requirements or zoning codes was provided by Brevard County to the Department.
Establishment of a Construction Line
Whether a Construction Line can be established for a proposed project is unique to the project and its coastal location. To establish such a line, the Office of Beaches and
Coastal Systems may rely exclusively on information provided by the applicant for a permit to construct along such a line. The Office may also refer to its own database of aerial photographs (as it did in this case) and other data with regard to the State's coastal systems.
The Construction Line running across the Ray property accepted by DEP is nearly identical to the 1981 CCCL.
In contesting the establishment of the Construction Line, Mrs. Pope makes a number of points, several of which are worthy of discussion.
For one, in 1993, the Department considered an administrative challenge brought by Mrs. Pope to the CCCL permit for the construction of the Days Inn Tower (now Best Western) hotel (one of the structures used by the Rays to establish a Line of Continuous Construction). See, OR-1, Pope v. Department of Environmental Protection et al., Agency Final Order dated May 9, 1994, DOAH Case No. 93-4560 (the "1993 Pope Case.)
The Pope duplex had been found to be three or four blocks north of the property for which the permit was sought. If her property had been found immediately adjacent to the Days Inn Tower property, Mrs. Pope would have been accorded standing to contest issuance of the permit to the Days Inn Tower applicant. The hearing officer had recommended that Mrs. Pope not be accorded standing under the rule because her duplex
property was not "immediately adjacent" to the Days Inn Tower parcel. Since Mrs. Pope's parcel was separated by at least what has been identified in this proceeding as the Ray property and the property of the Discovery Resort, she did not qualify for standing under the DEP Rule.
Nevertheless, Mrs. Pope was afforded the opportunity to acquire standing by proving that her substantial interests would be affected by issuance of the permit. The hearing officer concluded that her attempt in this regard failed.7
The Department accepted the hearing officer's recommendation that Mrs. Pope be determined to have no standing, in part because her property was not "immediately adjacent" to the Days Inn Tower property.
Mrs. Pope also asserts that the Four Structures along the 1981 CCCL do not establish a Construction Line on the basis of the testimony of her witness, Dr. Harris.
Dr. Harris opined that the structures to be used to establish the Line of Continuous Construction, if one exists, are not the four used by DEP that are in the area of the Ray property but the structures on the two pieces of property closer to the Ray property, that is, immediately adjacent: the Pope property to the north and the Discovery Resort property to the south.
The easternmost point of the structure on the Pope property is approximately 50 feet landward of the 1981 CCCL and extends approximately 100 feet seaward of the Control Line. The structure on the Discovery Resort property to the south is along the Control Line. See Respondents' 7.
The line that Dr. Harris would establish does not run parallel to the shore line, the 30-year erosion line, the 1981 CCCL or the Control Line. It would run at an angle of approximately 15 degrees from the easternmost point of the Pope duplexes (the "point of beginning") about 425 feet to the easternmost point of the Discovery Resort structure. The point on the Discovery Resort structure (at the end of the line) is approximately 100 feet seaward of the point of beginning.
If these structures are to be considered in the determination of whether a Construction Line exists as Mrs. Pope argues, then continuing the line to include the Four Structures would yield broken lines rather than a reasonably "uniform" and "continuous" line. The Department did not consider the structures in the property immediately adjacent to the Ray property to break the line it determined is established by the Four Structures. It ignored other structures as well between the northernmost and the southernmost of the four structures.
Mrs. Pope, therefore, describes the Construction Line established by the Department as "imaginary" and without a
factual basis. This point is one of opinion. The Construction Line is neither imaginary nor without a factual basis. It has a factual basis in precisely the data used by DEP: the aerial photograph that shows four major structures between Monuments R013 and R017, Respondents' 7, along the 1981 CCCL. The disregard for the Pope duplexes and the Discovery Resort structure as well as other structures in the areas north and south of the Ray property is a matter that falls within professional opinion and Department expertise.
The establishment of the Construction Line is justified by the data DEP examined: Respondents' 7 (on which the Four Structures were identified and circled by
Mr. Tammisetti at hearing.) The greater weight of the evidence is that DEP's determination of the establishment of the Construction Line should not be disturbed.
It is, moreover, not surprising that such a line exists. One would expect that structures built after 1981 but before 1986 would be located along the 1981 CCCL and that structures that followed (such as the Discovery Resort structure) would be built along that Construction Line.
Post-establishment of a Construction Line
Establishment of a Construction Line does not entitle an applicant to a permit to build along that Construction Line. After a Construction Line is accepted by DEP as established, an
applicant must satisfy three remaining sets of conditions expressed in Section 161.053(5)(b), Florida Statutes.
Section 161.053(5)(b), Florida Statutes
A discretionary exercise
Once a Construction Line is established, an application for a permit to allow a proposed structure is subject to the discretion of the Department: "a proposed structure may, at the discretion of the department, be permitted along such line on the written authorization of the department, if such structure is also approved by the department."
ii. Local Requirements
The Department has no such discretion, however, if the construction or activity would "contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than . . . requirements [in chapter 161]." Id. To this list, the Department, by rule, has added consistency with state-approved Local Comprehensive Plans. See Fla. Admin. Code R. 62B- 33.008(4)(d).
Before exercise of department discretion and inquiry into compliance with local requirements, there is a more fundamental condition that must be demonstrated by the applicant: the existing structures that establish the Construction Line must not have been unduly affected by erosion:
If in the immediate contiguous or adjacent area a number of existing structures have established a [Construction Line], 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 . . . [h]owever, the department shall not contravene [local requirements] . . . equal to, or more strict than, those requirements herein.
§ 161.053(5)(b), Fla. Stat.
Unduly Affected by Erosion
The parties differ in their view of the testimony and evidence introduced at hearing with regard to whether structures that establish the Construction Line "have not been unduly affected by erosion." Id. Neither DEP employees nor the Rays' witnesses visited the shoreline between R0-13 and R-017 to evaluate the four structures that establish the Construction Line and the effects of erosion, if any.8 Mrs. Pope asserts in her Proposed Recommended Order, "[n]o evidence or testimony was offered as to whether the structures considered by DEP were affected by erosion." Petitioners' Proposed Recommended Order,
p. 24. In contrast, Respondents cite to the testimony of Mr. Boehning and Respondent's 7 with the assertion, "[t]he existing structures, which form the line of continuous construction, have not been unduly affected by erosion."
Respondents' 7 supports the claim of Respondents.
It reveals a distance perpendicular from the Construction Line
to the dark, wet sand along the shore to be approximately 275 feet. This distance encompasses white sandy beach that is approximately 175 feet and a vegetated area that is approximately 100 feet.
The finding that the structures that establish the Construction Line are not unduly affected by erosion does not mean that there are not erosion problems in the area. In fact, as found earlier in this order, the beach depicted on Respondents' 7 is "critically eroding."
The stretch of beach depicted in the aerial photograph that is Respondents' 7 has undergone considerable fluctuation since 1963 through erosion and beach nourishment. From 1972 to 2002, for example, the location of the mean high water line at R-015, the monument closest to the Pope and Ray properties, has varied by 206 feet from a low in September of 1972 to a high of
369.3 feet in April of 2001. Dr. Harris wrote this in a report introduced into evidence:
The beach profile data show that at R-15 the beach and dune are subject to erosion. From 1972 to 2002 the variation in the MHW shoreline position was 206 feet. Beach nourishment and inlet sand by-passing operations were performed between some of the time periods, and are largely responsible for the periodic beach and dune widening. Even with the beach nourishment project, dune erosion continues to be a problem, and although the recent beach nourishment project greatly widened the
beach, the position of the dune remained the same.
The FDEP design wave height elevation for a 100-year storm is 14.2 feet NGVD for R-15, which is higher than the existing dune elevation. This means that the upland properties would experience storm surge, flooding and wave action during a 100-year storm.
Pope 16. Projects of beach nourishment (placement of sand through human activity) were performed in 1972, 1986 and 2001. The need for beach nourishment and re-nourishment reinforces the status of the beach near R-015 as "critically eroding" and underscores the importance of protecting as much of the dune system as possible.
That the beach is critically eroding is not inconsistent with a finding that the structures that establish the Construction Line are not unduly affected by erosion. Whether or not due to the 1986 and 2001 nourishment projects, the evidence of record is that, despite the status of the beach as critically eroding, the structures that establish the Construction Line are not unduly affected by erosion.
Not Contrary to Local Requirements
On December 30, 2002, a site-plan approval was issued by Brevard County with regard to "RAY CONDOS aka MICHELINA CONDOMINIUM" with a site address of "420 Harding Avenue, Cocoa Beach, FL 32931." Respondents' 1, Vol. 1, Tab 12, second page.
Signed by the designee of the Director, Permitting and Enforcement, the development order is entitled, "BREVARD COUNTY LAND DEVELOPMENT SITE-PLAN APPROVAL" and contains the following:
The site plan to which this approval is attached has been reviewed by affected County divisions, departments and agencies and has been determined to comply in general with the Brevard County Code of Ordinances and Comprehensive Plan Elements.
* * *
It is the responsibility of the Owner/Engineer of Record to contact Office of Natural Resources for a Land Clearing/landscaping Permit Two (2)
sets of As-Built drawings must be provided to Land Development prior to the Issuance of a C.O.
Id. The development order concludes with a statement related to the vested right of the Rays to develop in accord with the site plan:
If a Certificate of Occupancy has not been issued for the principal structure by Dec. 30, 2005 the three (3) year vesting period, beginning with the date of site development plan approval, expires and said site plan shall become Null and Void. Only those phases of the development that have an active and valid building permit may be completed after the three-(3) year time period. Id.
The reference in the site-plan approval to the "Brevard County Code of Ordinances" does not include building codes. The reference covers local setback requirements and zoning codes.
Mrs. Pope appealed the issuance of the site-plan approval to the Brevard County Board of County Commissioners (the "Board"). Her appeal was heard over three meetings of the Board on May 6, 2003, June 8, 2003, and August 12, 2003.
At the conclusion of the August 12, 2003, proceedings on the appeal, the Board voted unanimously to accept the staff recommendation to deny the appeal.
An unnumbered resolution of the Board "DENYING THE APPEAL OF JAMES AND CAROLE POPE . . . PERTAINING TO THE MICHELINA CONDOMINIUM SITE PLAN" was produced by Mrs. Pope at the hearing together with the following statement of a Deputy Clerk for the Board:
This is to advise that the Office of the Clerk to the Board of County Commissioners does not have any correspondence indicating a copy of the Findings of Fact on Michelina Condominium was forwarded to Mr. or Mrs.
Pope.
Pope 7. The resolution is signed by the Chairperson of the Board. Immediately below the signature block there appears the following: "(As approved by the Board on August 12, 2003)." Pope 8. The document is not stamped received by the Clerk of the Board or the County Clerk's Office, nor is there other clear indicia that the order has been rendered through a filing with the Clerk's office. On its face, however, appears an undated attestation of a deputy clerk under a seal of Brevard County
that appears to attest to the Chairperson's signature. As of the dates of the final hearing in this proceeding, Mrs. Pope had not sought judicial review of the decision of the Board.
At hearing, on the strength of the signed resolution denying Mrs. Pope's appeal of the site-plan approval and the site-plan approval, itself, and the apparent finality of the approval, Mrs. Pope was ruled estopped from presenting evidence that the Permit contravened local setback or zoning requirements or was inconsistent with the Local Comprehensive Plan.
The establishment of a Construction Line, that the structures establishing the line are not unduly affected by erosion, and the collateral estoppel of Mrs. Pope's claim that construction or activity seaward of the Control Line along the Construction Line is contrary to local requirements, clears the way for the exercise of Department discretion as to whether to issue the permit.
Department Discretion
The Department's exercise of discretion must, of course, take into consideration the beach and dune system within the fixed coastal cell in which Ray property and the Pope property are located. No other conclusion could be gathered from the statements of legislative intent and the statutory scheme. Lest there be any misunderstanding, the Department has codified its policy statement on such matters:
(1) The beach and dune system is an integral part of the coastal system and represents one of the most valuable natural resources in Florida, providing protection to adjacent upland properties, recreational areas, and habitat for wildlife. A coastal construction control line (CCCL) is intended to define that portion of the beach and dune system which is subject to severe fluctuations caused by a 100-year storm surge, storm waves, or other forces such as wind, wave, or water level changes. These fluctuations are a necessary part of the natural functioning of the coastal system and are essential to post-storm recovery, long term stability, and the preservation of the beach and dune system. However, imprudent human activities can adversely interfere with these natural processes and alter the integrity and functioning of the beach and dune system. The control line and 50-foot setback call attention to the special hazards and impacts associated with the use of such property, but do not preclude all development or alteration of coastal property seaward of such line;
Fla. Admin. Code R. 62B-33.005, Department Policy Statement on
Permits.
The exercise of this discretion is guided by criteria under rule.
Among those criteria are those found in 62B- 33.005(4)(g):
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 rule chapter.
Chapter 62B-33, Florida Administrative Code, defines the term "Impacts" to include separate definitions for the terms "Adverse Impacts," "Significant Adverse Impacts," "Minor Impacts," and "Other Impacts":
"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 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; . . .
* * *
(d) "Other Impacts" are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access.
Fla. Admin. Code R. 62B-33.002(30).
Minimization of Impacts and No Significant Adverse Impacts
The site selected on the Ray property for the proposed project poses impacts to Mrs. Pope's duplexes during a storm event such as a 100-year storm. Because of the shore- parallel dimension of the proposed structure (84 feet), storm- generated waves and storm surge would be concentrated into the relatively narrow gap between the proposed structure and the duplexes. The resulting hydrodynamic load would cause scouring of the foundations of the duplexes.
The proposed project has "frangible" or "breakaway" ground level walls. They would pose the potential for generating waterborne missiles that, hydro-dynamically propelled, would damage the duplexes.
The proposed project was designed in accordance with the American Society of Civil Engineers 7 Code ("ASCE-7") and most pertinently (since referenced in the Construction Line Statute), the Florida Building Code. But the Building Code does not take into consideration a proposed structure's design or proposed site on an adjacent property or the adjacent property's structures.
The proposed project, moreover, is not designed and sited to mitigate aerodynamic loading on Mrs. Pope's duplexes. During high-wind conditions, there will be a number of wind effects on the duplexes caused by the proximity of the proposed
project: gust loading, high turbulence shedding, and vortex shedding among others that can be reasonably expected to cause structural impacts to the duplexes such as suction loads on roofs and eaves, flying debris and window breakage.
The proximity of the proposed structure to the Pope property will have a shading effect that will cause adverse impacts on the growth of native coastal vegetation on the Pope property. As a result, there will be a reduction in the interception of wind-driven sand by the vegetation that enables it to develop healthy, deep root systems that add to dune
stability.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57, Fla. Stat.
Standing
Mrs. Pope, as an owner of property immediately adjacent to the Ray Property, has standing to contest the issuance of Permit No. BE-1083 to the Rays. She is substantially affected by issuance of the permit. Her standing, moreover, has not been contested by Respondents.
Burden of Proof
As the applicant, the Rays bear the burden of proving entitlement to the proposed permit by a preponderance of the
evidence. Department of Transportation v. JWC, 396 So. 2d 778 (Fla. 1st DCA 1981).
The Rays must "clearly justify" that all "standards, guidelines and other requirements set forth in the applicable provision of Part I, Chapter 161, F.S. and Rule 62B-33, have been met." Fla. Admin. Code R. 62B-33.005(4).
The Permit Application
The Department deemed the Rays' application complete.
In doing so, it waived some of the application requirements of the Application Requirements Rule, Florida Administrative Code Rule 62B-33.008(4).
Mrs. Pope contends that waivers are not effective because the Rays did not follow the Rule for receiving such a waiver. The Rays did not, for example, seek a waiver of the location of the vegetation line on the topographic survey drawing; nor did they, as part of the application, identify those requirements for which they sought waiver and state the reasons why they are inapplicable.
Mrs. Pope's argument is based on what she sees as the only reasonable reading of subsection (7) of the Application Requirements Rule (re-affirmed, in her view, by 3.b. of the Delegations of Authority document by which authority was delegated to Mr. McNeal to issue Permit No. BE-1083):
(7) The Department recognizes that [certain requirements of the Application Rule] may not, due to the project circumstances, be applicable or necessary to ensure the protection to the beach and dune system. In such cases, the applicant shall, as part of the application, identify those requirements and state the reason why they are inapplicable. The Department shall waive requirements that do not apply.
Fla. Admin. Code R. 62B-33.008(7). (e.s.)
The Department sees the matter differently. Despite a lack of request, identification and a statement of justification by the Rays, DEP waived a number of requirements. The Department does not read the clause of subsection (7) that requires identification and a statement by an applicant to be a condition precedent to its waiver authority. It reads the last sentence of (7) of the Application Rule to be authority for it to waive inapplicable requirements, independent of whether an applicant has identified them and offered justification for their waiver.
Mrs. Pope's interpretation is not without merit. But the interpretation of DEP is a reasonable one. Although the waiver power stated in the Rule follows immediately a sentence that mandates applicants to identify requirements inapplicable or unnecessary for protection of beaches and shores, it is not inextricably linked to the sentence that states DEP's policy with regard to waiver. Put another way, as reasonable as
Mrs. Pope's interpretation of the (7) of the Application Rule may be, it does not render DEP's interpretation unreasonable. One can hardly argue that the Department should not waive requirements that do not apply or that are unnecessary for it to make an informed decision.
The waivers of the Application Rule afforded the Rays and the arguments made by Mrs. Pope for the inefficacy of the waivers are not bases for DEP to re-consider its decision deeming the application complete.
Establishment of the Construction Line
The 1993 Pope Case is not a basis for disrupting the establishment of the Construction Line by the Four Structures. There is a difference between property that is "immediately adjacent" for purposes of the DEP rule considered in the 1993 Pope Case and the reference in Section 161.053(5)(b), Florida Statutes, to "the immediate contiguous or adjacent area." In the former, "immediately adjacent" has been determined to be property that shares a border, has a touching point or would share a border but for separation by a thoroughfare such as a street. An "immediate contiguous or adjacent area" is not a term that is as limited because of the presence in the term of the word "area."
It is not unreasonable for DEP to interpret Section 161.053(5)(b)'s reference to "immediate contiguous or adjacent
area" (e.s.) in the way it has in its application to this case. This interpretation is further enforced by the reference in Rule 62B-33.005(7) to "the immediate area" rather than the language in the statute: "the immediate contiguous or adjacent area."
§ 161.053(5)(b), Fla. Stat. The Office of Beaches and Coastal Systems has shortened the statutory term to "the immediate area." In so doing, it has retained the important concept that distinguishes the circumstance of this case from the 1993 Pope Case: "area." Mrs. Pope's property is not immediately adjacent to any of the structures used by DEP to establish the Line of Continuous Construction (just as it wasn't immediately adjacent to the Days Inn Tower property in 1993) but those structures are in "areas" that are immediately contiguous or adjacent to her property.
If anything, the 1993 Pope case supports the establishment of the Construction Line in this case because just as here, the order found "there is historical development of major habitable structures on either side of the parcel for which the proposed building is being constructed and which are co-terminus with the prior CCCL." OR-1, Pope v. Department of Environmental Protection et al., DOAH Case No. 93-4560, Recommended Order, Finding of Fact 16. Thus, the 1993 Pope Case supports the determination made in this case by the Office of Beaches and Coastal Systems: there is an established Line of
Continuous Construction that is very close to the 1981 CCCL, a fact not surprising in any area, such as the stretch of beach that encompasses the Ray property and the Pope property, that experienced development between 1981 and 1986.
For other arguments against establishment of the Construction Line, Mrs. Pope cites to Florida Administrative Code Rule 62B-33.005(7):
If in the immediate area a number of existing major structures have established a reasonably continuous and uniform construction line and if the existing structures have not been unduly affected by erosion, except where not allowed by the requirements of Section 161.053(6), F.S., and this rule chapter, the Department shall issue a permit for the construction of a similar structure up to that line, unless such construction would be inconsistent with subsection 62B-33.005(3), (4), (6), or (8), F.A.C.
(e.s.) Among her arguments are that the Rays' proposed structure is neither a major structure nor a structure "similar" to the Four Structures used to establish the Construction Line. These arguments, again a matter of interpretation, are laid to rest by the definition of "Major Structures" in Florida Administrative Code Rule 62B-33.003(55)(c).
This definitional rule provision sets up two categories of major structures. The Rays' project falls into the second category, those that are habitable:
2. "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 and restaurants.
Fla. Admin. Code R. 62B-33.002(55)(c). (e.s.). It is not unreasonable for DEP to conclude both that the Rays' project will be a habitable major structure and, however dissimilar to the other structures (and there are significant differences between the Rays' proposed project and the hotels and other structures used to establish the line), that it is similar enough to be a "similar" structure. This interpretation is supported by the definition of "Minor Structure" in Florida Administrative Code Rule 62B-33.003(55)(b): "[structures] 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." It is apparent that the proposed project is not a Minor Structure.
There is no definition of "similar" in the Chapter 62B-33. It is not unreasonable for DEP to interpret any structures that meet the definition of "Major Structures" to be "similar" so as to distinguish them from "Minor Structures" which would be "dissimilar."
The Four Structures identified and circled by
Mr. Tammisetti on Respondents' 7 establish a "reasonably uniform
and continuous line of construction" seaward of the Control Line.
Not in Contravention of Local Requirements
Mrs. Pope is estopped from claiming that the Construction Line contravenes local setback requirements zoning codes or is inconsistent with the Local Comprehensive Plan. Written evidence provided by Brevard County, in the absence of any evidence to the contrary, satisfies the requirement for the permit that it not contravene local setback and zoning requirements and is not inconsistent with the Local Comprehensive Plan.
The applicable building code is not one established by local government. There was testimony, moreover, that the proposed project complies with the state building code.
Unduly Affected by Erosion
The Four Structures that establish the Construction Line seaward of the Control Line have not been unduly affected by erosion.
Department Discretion: Impacts
An applicant for a CCCL permit must provide the Department with "sufficient information . . . to show that any impacts associated with the construction have been minimized and that the construction will not result in a significant adverse impact." Fla. Admin. Code R. 62B-33.005(2).
After reviewing the application, the Department is mandated by rule to deny an application that individually or with other structures and similar activity would result in a significant adverse impact including potential cumulative effects. In this regard, Florida Administrative Code Rule 62B- 3.005(3)(a) describes the impact assessment the Department must undertake:
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 similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles.
See OR-2, Northern Trust Bank of Florida, N.A., v. Negele et
al., 22 FALR 4490 (Department of Environmental Protection, July 27, 2000). The Department's file on Application BE-1083 was devoid of any documentation of the required assessment of impacts. At hearing, Mr. Boehning, Mr. Tammisetti and
Mr. McNeal all testified that the Rays' proposed project met the requirements of the rules and statutes, but their testimony was too cursory with regard to impact assessment to meet the requirements of the Florida Administrative Code Rule 62B- 33.005(3)(a).
Just as the Department is mandated to deny certain applications, it is mandated to issue certain permits, among them those covered by Florida Administrative Code Rule 62B- 33.005(7):
If in the immediate area a number of existing major structures have established a reasonably continuous and uniform construction line and if the existing structures have not been affected by erosion, . . . the Department shall issue a permit for the construction of a similar structure up to that line, unless such construction would be inconsistent with subsection 62B-33.005(3), (4), [or]
(6) . . . F.A.C.
* * *
The Department is further mandated to issue permits that an applicant has shown to be clearly justified by demonstrating that all applicable standards, guidelines, and other requirements set forth in Part I, Chapter 161, Florida Statutes, and Chapter 62B-33, Florida Administrative Code, are met.
Among these are (g), "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 rule chapter [Chapter 62B-33]." Fla. Admin. Code R. 62B-33.005(4). (e.s.) The reference to "significant adverse impact[s] to . . . immediately adjacent properties" in subsection (g) of section (4) of the Policy
Statement on Permits Rule does not seem to square with the definition of "significant adverse impacts" in Florida Administrative Code Rule 62B-33.002(3) since the latter is silent with regard to adjacent property and speaks only in terms of coastal systems and constitutional takings of property without due compensation. Impacts which may result in damage to existing structures or property are defined as "other impacts" by the rule. Fla. Admin. Code R. 62B-33.002(3)(d). Construing all of the references in Part I of Chapter 161, Florida Statutes, and Chapter 62B-33, Florida Administrative Code, leads to the conclusion that any impact to existing structures not defined as "minor," see Florida Administrative Code Rule 62B- 33.002(30)(c), leaves the Department in a position of discretion with regard to issuance of a permit.
In this case, the Department should not issue the permit unless it requires, in keeping with Florida Administrative Code Rule 62B-33.005(3)(b), "siting and design criteria that minimize adverse impacts and mitigation of adverse or other impacts." The proposed project should be re-sited in order to mitigate the potential for waterborne and windborne missiles during a storm and the impact of hydrodynamic forces and aerodynamic loading and wind damage to the Pope duplexes as well as shading to vegetation on the Pope Property. In simple terms, the proposed project is too close to the structures on
the Popes' property. Its proximity poses a real threat of adverse impacts to the Pope property, property that is adjacent. These impacts must be mitigated by a re-siting of the proposed project.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that:
an impacts assessment be conducted as required by Florida Administrative Code Rule 33.005(3)(a);
that the proposed project be re-sited to mitigate the impacts that its siting now poses to the Pope Property and the Popes' duplexes;
that the proposed project be permitted to be constructed up to the Construction Line, provided that the permit is supported by both the impacts assessment and a re- siting of the proposed project to mitigate wind, water and shading impacts; and
if the proposed project is not supported by an adequate impacts assessment, or if it cannot be re-sited to mitigate the impacts to the Pope Property, that the permit be denied.
DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida.
S
DAVID M. MALONEY
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 2nd day of March, 2004.
ENDNOTES
1/ Entitled, "OFFICE OF BEACHES AND COASTAL SYSTEMS - RULES AND PROCEDURES FOR COASTAL CONSTRUCTION AND EXCAVATION (PERMITS FOR CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE AND FIFTY-FOOT SETBACK)."
2/ The findings in this paragraph are asserted by Mrs. Pope in her proposed order. To the best of my recollection and with the aid of notes, I believe these to be correct.
3/ The status of the beach as "critically eroding" may account for the lack of information in Part II of Mr. Tammisetti's
May 24, 2001 memorandum in file BE-1083.
4/ This is but one instance in which this order may suffer for the lack of a transcript of the hearing filed with the Division of Administrative Hearings.
5/ If there is any, neither the Rays nor DEP has pointed to it.
6/ Another example of the assistance a transcript would provide. My notes reflect that Mr. McNeal testified that the
vegetation line could reasonably expected to be close to the dune bank. Whether he testified that it could be expected to be closer to the top of the dune bank rather than a few feet away toward the toe of slope line, as it turned out to be in this instance, or at the toe of slope line as Respondents' 2 shows, I do not recall. My notes reflect that Mr. McNeal or
Mr. Tamisetti testified that the vegetation line could be reasonably expected to be close to the top of the dune bank.
7/ Mrs. Pope's concerns that the construction of the Days Inn Tower along the 1981 CCCL could have an impact on the development of property immediately adjacent to hers were dismissed as speculative. What was speculative in 1993 now appears to have been prophetic.
8/ Without a transcript, this finding is based on best recollection as refreshed by the proposed recommended orders and the administrative law judge's notes.
COPIES FURNISHED:
Ross S. Burnaman, Esquire 1018 Holland Drive
Tallahassee, Florida 32301-4508
Charles T. "Chip" Collette, Esquire Mark S. Miller, Esquire
Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
Wilbur E. Brewton, Esquire Kenneth J. Plante, Esquire Roetzel & Andress
225 South Adams Street, Suite 250 Post Office Box 10369 Tallahassee, Florida 32302-2369
Kathy C. Carter, Agency Clerk Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
Teri L. Donaldson, General counsel Department of Environmental Protection
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 should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| May 12, 2004 | Other | |
| Apr. 15, 2004 | Agency Final Order | |
| Mar. 02, 2004 | Recommended Order | Petitioner, an applicant for a coastal construction control line (CCCL) permit in Brevard County, is allowed to build along the construction line if re-siting will mitigate impacts to adjacent property. |
JACK G. NICHOLS vs. DEPARTMENT OF NATURAL RESOURCES, 03-003981 (2003)
CAROLE C. POPE vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 03-003981 (2003)
WINGFIELD DEVELOPMENT COMPANY vs. DEPARTMENT OF NATURAL RESOURCES, 03-003981 (2003)
CAROLE C. POPE vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 03-003981 (2003)
TED WIESE AND SHIRLEY WIESE vs. DEPARTMENT OF NATURAL RESOURCES, 03-003981 (2003)
