Resources by Edwin Chancey, ) CASE NO. 76-1382 Walton County, Florida. )
Upon proper notice this matter came on for final hearing before the undersigned Hearing Officer on December 16, 1976. The parties to this proceeding are G.A.P. Haynes, Betty H. Haynes, Jennings M. Byrd, Mrs. J. M. Byrd, W. A. Covell and Bonnie Coveil, PETITIONERS; J. Edwin Chancey, APPLICANT; and Department of Natural Resources, RESPONDENT. Jerry W. Gerde, Esquire, appeared on behalf of Petitioners, Baya Harrison, Esquire, appeared on behalf of the Applicant, and Steve Barber, Esquire, appeared on behalf of Respondent.
At the request of the Governor and Cabinet sitting as the head of the Department of Natural Resources a Hearing Officer was appointed from the Division of Administrative Hearings to hear the objections to the proposed variance by Petitioners. Subsequent to the appointment of the undersigned Hearing Officer, Petitioners filed an Administrative Complaint, or Petition, wherein they allege that their substantial interests are being determined by the agency, stating that the variance as proposed does not meet the standards of Section 161.053, F.S. At the final hearing the Petitioners entered a Motion To Abate, Or To Dismiss, Or For Directed Verdict and the Applicant entered a Motion To Dismiss Administrative Petition For Lack Of Standing. These motions are dealt with below.
Having considered the evidence and argument of counsel, the Hearing Officer finds as follows:
On July 15, 1975, the Department of Natural Resources approved a variance from the coastal construction setback line requirements for a development with 30 lots proposed for the land involved in this application and an additional and contiguous 930 feet of beach. However, the developer experienced financial difficulties and as a result deeded away approximately two-thirds of the beach front property involved in that variance and abandoned the variance. The developer in that instance was J. Edwin Chancey.
The land involved in this proceeding is generally open beach dunes interrupted by lakes. The engineer for the Department of Natural Resources estimated that the elevation of the subject property for which a variance is sought ranges from +3 feet mean sea level to +7 feet mean sea level except for the remnants of several large dunes which range from +10 feet mean sea level to
+13 feet mean sea level. The area was somewhat higher prior to Hurricane Eloise which caused the dunes to recede on the average 55 feet and reduced 20 foot dunes to their current elevation of +10 feet to +13 feet mean sea level.
Several hundred yards east of the subject property there is a large body of water known as Western Lake. Western Lake is connected directly to the Gulf by an open water course presently located 200-400 feet east of the subject property. This natural water course historically migrates to the west from its present general location in a series of migrations. As its length increases its efficiency decreases so that periodically it moves back to the east to begin again its western migration. This natural water course, in its western migration, has, in the past, encroached on the property for which a variance is herein sought. It appears that, absent an artificial barrier, this natural water course is likely in the future to migrate westward to the subject property. This water course is sometimes deep enough to accommodate an outboard boat and can be 150 feet or more wide.
During Hurricane Eloise, the construction site on the property for which the variance is sought had approximately 3 feet to 4 feet of standing water.
The Applicant has not provided the Department of Natural Resources with evidence of his ownership of the property for which he seeks a variance. It appears from the evidence presented that the Applicant is not the sole owner of
the property, but may be a part-owner with three other persons. The Applicant has not provided the Department of Natural Resources with a duly executed statement from the owners of record consenting to the work, activity, or construction for which the variance has been requested.
No statement of the specific reasons why the Applicant feels that the variance should be granted has been received by the Department of Natural Resources. There have been communications between staff members of the Department and the Applicant or his representatives, but apparently these communications dealt with the details of the requested variance rather than the reasons why the variance should be granted.
The Department of Natural Resources has not received a recent topographic survey showing the plot plan of the proposed construction. The Department has received a topographic survey and a plot plan showing the position of the proposed nine lots. (See Exhibits 5 and 9) Exhibit 5, on Lots 1, 2, 6 and 8 does show what appears to be the plot plan of some structure, though apparently, the Applicant does not necessarily intend to construct dwellings in accordance with those drawings.
The Department of Natural Resources has not received construction plans showing cross sections of all sub-grade construction or excavation, elevations of the lowest floor and the first dwelling floor, or the details and justification for any proposed waste water discharge unto, over, under or across the beach and/or dunes. The Applicant has verbally communicated to the Department that if septic tanks are used on the subject property they will be located as far landward as possible with no discharge toward the Gulf. No further details of this proposed wastewater discharge have been submitted to the Department. According to the engineer for the Department there will be sub- grade construction. However, the plot plan (Exhibit 5) showing the location of the proposed nine lots is apparently the only plan received by the Department with regard to this request for a variance.
No evidence was presented showing that the Department has waived any of the requirements for an application for variance set out in Section 16B- 25.05, F.A.C. The engineer for the Department whose responsibility it was to initially review and make recommendations with regard to the application for variance testified that he did not believe that he had the authority to waive the above requirements and that he did not know who, if anyone, within the Department had that authority. He did not make any recommendation that the requirements be waived and did not know if the requirements had been waived.
The application for variance which is the subject of this proceeding was received by the Department of Natural Resources no earlier than November, 1975, and was given the Department File No. 76-3-V-90. The application is a series of documents rather than a formal application. The Applicant had sought variances for a larger piece of property which included the subject property which variances would have allowed up to 128 dwelling units. Those requests for variances predated that which is the subject of this proceeding and were apparently given different file numbers by the Department of Natural Resources and were considered separate applications.
The Petitioners, W. A. Covell and Bonnie Covell, own property in the community of Grayton Beach upon which there is a house. Their property is approximately 700 feet or more from the open beach property for which a variance is sought and does not abut the subject beach property. The Covell's think that
construction of the nine dwelling units which would be allowed by the variance would lower the value of their property.
Petitioners Jennings N. Byrd and Mrs. J. N. Byrd own property in the community of Grayton Beach upon which there there is a dwelling house. Their property is approximately 750 feet to 800 feet from the beach property for which a variance is sought. Mr. Byrd testified that he felt his interest in objecting to the variance was the same as that of any other Florida citizen. He further testified that he did not mind his view being obstructed by the dwelling units proposed by the Applicant.
All Petitioners and their families have used the open beach area of which the property for which a variance is sought is a part, for many years as a picnic, sunning and swimming area.
Petitioners G.A.P. Haynes and Betty H. Haynes own, in the name of Mrs. Haynes, property which is immediately adjacent to Applicant's property. The Haynes own a dwelling house which is located approximately 100 feet from Applicant's property. It is the opinion of the Haynes that the construction of the nine dwelling units in front of their house as proposed by the Applicant would lower the value of their property. The Haynes further indicated their concern that construction on the beach in front of them, because of the apparent inherent instability of the shifting sands, would have an adverse impact upon their house in times of high wind and water. They recounted seeing water standing, as the result of storms other than hurricanes, on Applicant's property and near their house.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this proceeding.
All parties were afforded due and proper notice of final hearing.
The Applicant has moved to dismiss this proceeding for lack of standing on behalf of Petitioners. This motion was taken under advisement by the Hearing Officer at the time of final hearing. From the evidence presented at final hearing it appears that the Applicant's motion is well founded with regard to Petitioners Jennings N. Byrd, Mrs. J. N. Byrd, W. A. Covell and Bonnie Covell. The evidence presented by Petitioners did not establish that the Byrd's and Covell's have a substantial interest as required for standing by the Administrative Procedure Act. Section 120.57, F.S. Therefore, as to those Petitioners, Applicant's motion to dismiss for lack of standing is hereby granted. However, the evidence presented at final hearing shows that Petitioners G.A.P. Haynes and Betty H. Haynes own property immediately adjacent to the property for which a variance is sought and have a home approximately 100 feet from the proposed construction site. Further, the evidence shows a legitimate concern on their part for the potential adverse affect on their property value of the construction proposed by the Applicant if granted a variance and a legitimate concern for the effects through erosion on their home and property of the construction proposed by the Applicant. Therefore, it appearing to the Hearing Officer, that G.A.P. Haynes and Betty H. Haynes have a substantial interest as required by Section 120.57, F.S., Applicants motion to dismiss for lack of standing with regard to those Petitioners is denied.
Subsection 161.053(1), F.S., states that,
"The department . . . shall establish coastal construction setback lines on a county basis along the sand beaches of the state fronting on the Atlantic Ocean and the Gulf of Mexico
. . . Upon the establishment, approval, and recordation of such setback line or lines, no person, firm, corporation, or governmental agency shall construct any structure whatsoever seaward thereof; make any exca- vation, remove any beach material, or otherwise alter existing ground elevations; drive any vehicle on, over, or across any sand dune; or damage or cause to be damaged such sand dune or the vegetation growing thereon seaward thereof "
Subsection 161.053(2)(a), F.S., states that,
"A waiver or variance of the setback require- ments may be authorized by the department in the following circumstances:
The department may authorize an exca- vation or erection of a structure at any riparian coastal location as described in subsection (1) upon receipt of an appli- cation from a riparian owner and upon the consideration of facts and circumstances, including adequate engineering data concerning shoreline stability and storm tides related
to shoreline topography, which, in the opinion of the department, clearly justify such a waiver or variance.
Thus, it can be seen that the statute requires an application from a riparian owner and mandates that to grant a variance the Departments must consider facts and circumstances which, in its opinion, clearly justify the requested waiver of variance. The Department has implemented the foregoing statutory provisions in Chapter 16B-25, F.A.C. In Subsection 1 of Section 16B-25.05, F.A.C., the Department has stated that,
"Any person desiring to obtain a variance from the Department shall submit an application
. . . which shall contain the following information:
Name . . . of the applicant . . .
The applicant shall provide the Depart- ment with evidence of this ownership . . . .
If the applicant is not the property owner, the applicant shall provide the Department with a duly executed statement from the owner of record consenting to the work, activity, or construction for which the variance has been requested.
A statement that the proposed work or activity does not violate any local setback ordinances.
Statements describing the proposed work
or activity and specific reasons why the applicant feels the variance should be granted.
The application shall be accompanied by a recent topographic survey of the property
. . . showing the following information:
The approximate location and the elevation of the mean high water line on the subject property.
The location of the setback line . . .
Plot plan of existing structures and the proposed construction or activity showing the significant distances from the proposed construction or activity to the setback line." (Emphasis added)
* * *
Subsection 16B-25.05(2), F.A.C., states that,
"Variance requests which involve proposed construction shall be accompanied by construction plans which provide at least, but are not limited to the following information:
Cross sections of all sub-grade construction or excavation....
Elevations of the lowest floor and first dwelling floor.
Details and the justification for any proposed waste water discharge unto, over, under or across the beach and/or dunes "
(Emphasis added)
The legislature through Section 161.053, F.S., has prohibited any construction or other activity which might damage Florida's beaches seaward of a coastal setback line. The legislature has allowed a waiver or variance of this prohibition to be granted by the Department of Natural Resources requiring first however, that the Department consider facts and circumstances, including but not limited to engineering data concerning shoreline stability and storm tides, which in the opinion of the Department, clearly justify the granting of a waiver or variance. The statute does not grant a right to a waiver or variance but rather, allows it only when, after consideration of facts and circumstances, it is clearly justified. The Department of Natural Resources has recognized its responsibility in determining whether a variance is clearly justified by its adoption of Section 16B-25.05, F.A.C., wherein, as set out above, there are extensive and mandatory requirements placed upon an applicant for a variance. These requirements insure the submission of full and complete facts and circumstances so that the Department may reasonably determine the effect and impact of the proposed variance upon the open beach and determine whether it is clearly justified. The emphasized language in the rules cited above clearly mandates submission by an applicant of the cited information for consideration by the Department before a variance will be granted. As can be seen from the Findings of Fact the Applicant in this proceeding has failed to produce in several instances the information required by the Department for its consideration prior to issuance or denial of a variance.
No proof of ownership or executed statement from the owner of record consenting to the work, activity or construction for which the variance has been requested has been submitted by the Applicant although it is required by Subsection 16B-25.05(1)(b), F.A.C. The Applicant has not presented to the Department in written form, and no evidence was shown that he submitted orally, the specific reasons why he feels the variance should be granted. Such a statement is required by Subsection 16B-24.01(1)(d), F.A.C. Clearly, Chapter 161, F.S., prohibits construction seaward of a setback line unless it is shown that a waiver or variance of that prohibition is clearly justified. Thus, there is no implied right to a variance. One must first justify the need for such a variance. The Applicant has failed to put forth any reasons why a variance is clearly justified in this application. Subsection 16B-25.05(1)(e), F.A.C. requires a topographic survey showing, in addition to other information, a plot plan of the proposed construction. The, Applicant proposes to construct nine dwelling units. However, he has not presented a topographic survey showing a plot plan of these dwelling units. Rather, he has submitted only a plot plan showing the proposed nine lots into which his land will be divided if a variance is granted. Subsection 16B-25.05(2), F.A.C., requires that a variance request be accompanied by construction plans which shall provide "at least" cross sections of all sub-grade construction or excavation, elevations of the lowest floor and the first dwelling floor, and the details and justification for any proposed waste water discharge unto, over, under or across the beach and/or dunes. The evidence shows that there will be sub-grade construction by the Applicant and that there may, through the use of septic tanks, be wastewater discharge unto, over, under or across the beach and/or dunes. Yet, no construction plans purporting to show any of the required information have been submitted to the Department by the Applicant.
In its rules the Department provides, in Subsection 16B-25.05(5), F.A.C., that they ". . . may waive any of the above requirements [Subsections 16B-25.05(1)-(4), F.A.C.] if in the opinion of the Department such information is not necessary for a proper evaluation of the proposed work or activity." There was no evidence presented that such a waiver has occurred with regard to this application for variance. At the final hearing, the engineer for the Department whose responsibility it was to review this application and make recommendations stated that he did not know who, if anybody, could waive the requirements set forth in Subsections 16B-25.05(1)-(4), F.A.C., but that he did not think he could waive those requirements and he did not recommend that they be waived. Then counsel for the Department of Natural Resources was asked by the Hearing Officer who had the authority within the Department to waive the rules as provided in Subsection 16B-25.05(5), F.A.C., he stated that he did not know. Further, counsel for the Department of Natural Resources stated that he was not prepared to define for the Hearing Officer what was meant by the use of the phrase "The Department" in the foregoing subsection. Rule 16B-25.02(1), F.A.C., defines "Department" as meaning the "State of Florida, Department of Natural Resources". That is essentially the same definition found in Chapter 161, F.S. Section 20.25, F.S., creates in the State of Florida, a Department of Natural Resources and in Subsection (1) states that "[t]he head of the Department of Natural Resources is the Governor and Cabinet." Thus, it is concluded that where Subsection 16B-25.05(5), F.A.C., states that "The Department" may waive certain requirements of its rules, such action of waiver must be taken by the. head of the Department, the Governor and Cabinet, unless, perhaps, they have delegated that authority to their subordinate. No evidence was presented to show that such delegation has occurred and no evidence was presented to show that any waiver of the requirements of Section 16B-25.05, F.A.C., has been made by the Department of Natural Resources.
Therefore, it is hereby RECOMMENDED by the Hearing Officer that the Applicant for variance herein has failed to meet the mandatory requirements for a variance by failing to submit information required by the Department of Natural Resources for its consideration and that the facts and circumstances submitted by the Applicant for consideration by the Department do not set forth any specific reasons why the variance should be granted and fails to show that such a waiver or variance is clearly justified as required by law. Until such requirements of law and agency rule are met the requested variance should be DENIED.
ENTERED this 4th day of March, 1977, in Tallahassee Florida.
CHRIS H. BENTLEY
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Jerry W. Gerde, Esquire
P. O. Box 391
