STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THEODORE B. MEADOW, )

)

Petitioner )

)

vs. ) CASE NO. 80-424

) DNR File #79-P-283 DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in the above styled cause before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, in Room 106 Collins Building, Tallahassee, Florida.

APPEARANCES

For Petitioner: Cecil G. Costin, Jr., Esquire

413 Williams Street Post Office Drawer 98

Port St. Joe, Florida 32456

For Respondent: Mark J. Proctor, Esquire

Office of the General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

ISSUE

Whether a permit should be issued to Petitioner Theodore B. Meadow to construct a dwelling on the Gulf Coast of Florida as requested in his application filed with Respondent Department of Natural Resources.

INTRODUCTION

Petitioner Theodore B. Meadow filed an application for a permit to construct a dwelling to extend partly on the seaward side of the coastal setback line at St. Joe Beach, Florida with the Respondent Department of Natural Resources. The application was approved by the staff of the Department, and therefore no administrative hearing had been requested by Petitioner before he presented his application to the Executive Board of the Department (the Governor and Cabinet). After the formal meeting of the Executive Board at which Petitioner's application was presented and denied and after which a "Final Order" was entered, Petitioner requested an administrative hearing conducted by the Division of Administrative Hearings. The request was forwarded by the Department to the Division for formal hearing, and the undersigned Hearing Officer was assigned to conduct the hearing.

Prior to the formal hearing a Motion to Strike the "Final Order" was heard and denied without prejudice.

FINDINGS OF FACT

Having considered the evidence and argument of counsel, the Hearing Officer finds:

1. In July of 1979 Petitioner filed an application for a permit to build a duplex dwelling seaward of the coastal construction setback line on a parcel of land bounded by the theoretical extension seaward of the north/south boundary line of Ponce de Leon Street in Yon's Addition to Beacon Hill on St. Joe Beach, Florida. The parcel of land is 70 feet in width and approximately 175 feet in depth to the high-water line of the Gulf of Mexico and lies between State Road

   30 (US Highway 98) and the Gulf of Mexico at St. Joe Beach in Gulf County, Florida.

   
   

2. The application, Department of Natural Resources File #79-P-283, was filed pursuant to Rule 16B-25.05, Procedure to obtain variance; application, Florida Administrative Code, which had been promulgated under the authority of Sections 161.052, 161.053 and 370.021(1), Florida Statutes. Attached to the application was a copy of a deed to subject property to Albert H. Hinman dated December 12, 1977; an undated authorization from the owner of the property to Petitioner Meadow to apply for a variance and if granted to construct a building on the property; a survey of the property; a floor plan of the building with a typical wall section; and a topographical plat of the lot involved. In response to Rule 16B--25.05(1)(d): "Statements describing the proposed work or activity and specific reasons why the applicant feels the variance should be granted." Petitioner stated, in part, "...the reason that the permit should be granted is because applicant does not have sufficient space on property he is purchasing from A. H. Hinman to construct said building outside of the DNR Coastal Construction Control Line." The survey shows that 14 to 15 feet of the property lies landward of the Department of Natural Resources' setback line. At the time of the hearing no purchase had been made, but there is no dispute regarding the authorization of the owner to allow Petitioner to build if a variance is granted. After filing the application Petitioner consulted with the staff of the Department concerning the construction seaward of the setback line. The Chief Engineer of the permitting section of the Bureau of Beaches and Shores, who is responsible for accepting, evaluating and making recommendations for permits for construction, inspected the site of the proposed structure on October 11, 1979. He took a copy of the plans and specifications for the structure, a plot plan, and the engineering statement which accompanied the plans to review on the site. After the inspection he made a determination that the structure was appropriately designed for the hazard environment and located in such a position as to offer the least potential adverse impact to the beach in the area. Recent topographic changes, topographic data including that submitted by Petitioner, and other historical information was used to assess and evaluate the project. Thereafter, the engineer consulted with the Executive Director of the Respondent Department and gave a favorable recommendation in terms of minimal impact. The Executive Director determined that the structure was designed and located to have the minimum adverse impact on the beach, and that the structure was adequately designed to resist natural forces associated with a hundred-year storm surge (Transcript, pages 52-56). At the formal hearing the Executive Director stated that he based his recommendation for approval by the Executive Board on the precedence of previous action of the Executive Board and because he found that the Petitioner had his application in order.

3. Petitioner Meadow has followed the guidelines of the administrative rules and submitted all required information. He has provided his reason for requesting a variance and believes the information furnished compels the Respondent Department to grant the waiver inasmuch as no modification was requested and he cannot build the structure he desires on the 14 to 15 feet of land he is authorized to use which lies landward of the 1975 setback line.

   
   

4. The immediate area involved in this proceeding is relatively undeveloped beach property approximately one (1) mile in length at St. Joe Beach, Gulf County, Florida some twenty-nine (29) miles to Panama City and six

   (6) miles to Port St. Joe. The real property has been divided into fourteen

   (14) lots more or less similar to the lot on which Petitioner seeks to construct a duplex (Petitioner's Exhibit 2; Transcript, page 137). No structures except one multifamily dwelling have been constructed on any of the fourteen (14) lots. Most the construction along the nearby coastline was completed prior to March 21, 1975, the date the Respondent Department established a coastal setback line under the then applicable statutes and rules.

   
   

5. Beacon Hill is a subdivision about a mile and a half from the subject area on the coastal western edge of Gulf County. The structures are close together, the majority of which were constructed prior to 1975 without a permit from the Respondent Department. Historically, the area would have had a similar topography and beach conditions to the subject area, but because of structures built on the beach vicinity the primary dune system has been eradicated, the beach is narrow in that vicinity, and there is virtually no vegetation (Transcript, pages 135-136). It has been found that any construction, particularly of a building, generally has an adverse impact on a beach dune system (Transcript, pages 149, 161).

   
   

6. The "setback line" defined in the 1975 statutes and rules was established March 21, 1975 (Transcript, page 169). Thereafter, in 1978 the legislature amended Section 161.053, Florida Statutes, and ordered the Respondent Department to establish a "coastal construction control line" to replace the setback line, but said line has not yet been established, although at the hearing a member of Respondent's engineering staff stated that a study was in progress. Neither Petitioner Meadow nor Mr. Hinman, the owner of subject property, requested the Respondent Department to review the setback line or establish a coastal construction control line prior to filing of the application in 1979 for a variance of the 1975 setback line (transcript, page 93). "Setback line" and "coastal construction control line" are not synonymous. The setback line set a seaward line for construction, and the coastal construction control line defines the impact of a 100-year storm surge or other predictable weather condition (Transcript, page 179). An engineer on the Respondent Department's staff who qualified as an expert was of the opinion that the coastal construction control line, when established, would be landward of the setback line established in 1975 (Transcript, page 198).

   
   

7. There have been two (2) hurricanes which have impacted the Gulf Coast since the setback line was established, one in September of 1975 and one in September of 1979. These storms had relatively little visual impact on the subject beach area except for erosion of the fore dune, but the storms substantially impacted the accretion of the coastline (Transcript, pages 189- 195).

   
   

8. At the final hearing Ms. Sally Malone, a resident living one block from the proposed structure of Petitioner Meadow, protested the proposed construction

   on the beach and in general the removal of trees. The evidence shows she has a legitimate concern for the effect through erosion the construction might have on the beach near her home.

   
   

9. Petitioner Meadow and the Respondent Department submitted proposed findings of fact and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

    
    

11. Subsection 161.053 Coastal construction and excavation; regulation on county basis.-- provides:

    
    

    1. The Legislature finds and declares that the beaches of the state, by their nature, are subject to frequent and server fluctuations and represent one of Florida's most valuable natural resources and that it is in the public interest to preserve and protect them from imprudent construction

       which can jeopardize the stability of the beach- dune system, accelerate erosion, provide inadequate protection to upland structures, and endanger adjacent property and the beach-dune system. In futherance of these findings, it is the intent

       of the Legislature to provide that the department, acting through the division [Division of Marine Resources of the Department of Natural Resources], shall establish coastal construction control lines on a county basis along the sand beaches of the state fronting on on the Atlantic Ocean and the Gulf of Mexico.

       Such lines shall be established so as to define that portion of the beach-dune system which is subject to severe fluctuations based on a 100- year storm surge or other predictable weather conditions, and so as to define the area within which special structural design consideration is required to insure protection of the beach-dune system, any proposed structure, and adjacent properties, rather than to define a seaward limit for upland structures.

       1. Pending the establishment of coastal construction control lines as provided herein, the provisions of s. 161.052 shall remain in force....

          
          

12. The foregoing statute is the 1978 amendment to the 1975 statute and, among other things, changed the setback line provisions in the statute to coastal construction control lines and provided a different procedure to be used in establishing these lines. No coastal construction control lines have yet been established, so Section 161.052 remains in force. The setback line

    requirements as defined in Sections 161.052, 161.053 (1975) and 161.053(1978) are each different in regard to establishment of the setback lines or coastal construction control lines.

    
    

13. Subsection 161.052 Coastal construction and excavation; regulation.-- provides:

    
    

    1. No person, firm, corporation, municipality, county, or other public agency shall excavate of construct any dwelling house, hotel, motel, apartment building, seawall, revetment, or other structure incidental to or related to such structure, including but not limited to such attendant structures or facilities as a patio, swimming pool, or garage, within 50 feet of the line of mean high water at any riparian coastal location fronting the Gulf of Mexico or Atlantic coast shoreline of the state, exclusive of bays,

       inlets, rivers, bayous, creeks, passes and the like.

    2. A waiver or variance of the setback require- ments may be authorized by the Department of Natural resources in the following circumstances:

       1. The department may authorize an excavation or erection of a structure at any riparian coastal location as described in subsection (1) upon receipt of an application 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 of Natural Resources, clearly and unequivocally justify such a waiver or variance.

          
          

14. The foregoing statute requires a riparian owner to submit an application for a variance or waiver of the prohibition of construction seaward of the setback requirements and authorizes the Respondent Department to grant such a waiver or variance if, in its opinion, the request is clearly and unequivocally justified.

    
    

15. The Respondent Department implemented Sections 161.052 and 161.053, Florida Statutes, in Chapter 16B-25, Florida Administrative Code, in 1975. The rules have not been updated, although Section 161.053 was amended in 1978 to require new procedures to establish construction areas to protect the beaches of the state. The rules define "setback line," provide a brochure to obtain a variance and outline processing procedures, and are still applicable to Section

    161.052. Petitioner Meadow has submitted the information required in Rule 16B- 25.05, he has consulted with the Respondent Department's staff as permitted in Rule 16B-25.06, and he has followed the "Processing Procedure" outlined in Rule 16B-25.07. He has not requested that new rules be promulgated or that coastal construction control lines be set.

    
    

16. The statutes and rules do not grant a right to a variance but have given the Respondent Department the responsibility to determine whether a variance is clearly and unequivocally justified. The fact that Petitioner has followed the technical requirements of the rule will not require the Respondent Department to grant the requested variance. The fact that there is insufficient

    property landward of the setback line which can be used by Petitioner on which to build a duplex is not in itself a sufficient reason to require the Department to grant a permit to build seaward of the setback line. Petitioner Meadow has not yet purchased the subject land, and he knew or should have known that the new coastal construction control lines had not been established at the time he applied for a waiver of the 1975 setback lines.

    
    

17. The agency head of the Department of Natural resources is the Governor and Cabinet, pursuant to Section 20.25(1), Florida Statutes, and any waiver or variance must be given by the head of the Department regardless of the recommendation of the staff, including the Executive Director of the Department.

RECOMMENDATION

Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is recommended by the Hearing Officer that the application of Theodore

B. Meadow for a waiver or variance be denied without prejudice to his refiling an application after the coastal construction control line is established as required by Section 161.053, Florida Statutes, supra.

DONE and ORDERED this 5th day of November, 1980, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the clerk of the Division of Administrative Hearings this 5th day of November, 1980.

COPIES FURNISHED:

Mark J. Proctor, Esquire Office of the General Counsel

Department of Natural Resources 3900 Commonwealth Building

Tallahassee, Florida 32303

Cecil G. Costin, Jr., Esquire

413 Williams Street Post Office Drawer 98

Port St. Joe, Florida 32456

Docket for Case No: 80-000424

Orders for Case No: 80-000424