STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEASCAPE CONDOMINIUM I ) ASSOCIATION, INC., SEASCAPE ) CONDOMINIUM II ASSOCIATION, INC.,) CASA BONITA I CONDOMINIUM ) ASSOCIATION, INC., and CASA ) BONITA II CONDOMINIUM )

ASSOCIATION, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 81-550

) BONITA BEACH CLUB ASSOCIATION, ) INC., and STATE OF FLORIDA, ) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondents. )

and )

)

LEE COUNTY, FLORIDA, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, on July 23- 24, 1981, in Fort Myers, Florida.

APPEARANCES

For Petitioners: John C. Coleman, Esquire, and Case Bonita I and Robert J. Coleman, Esquire

II Condominium Post Office Box 2089 Assocs, Inc. Fort Myers, Florida 33902

For Respondents: Terry Lewis, Esquire Bonita Beach Post Office Box 1876

Club Assoc, Inc. Tallahassee, Florida 32302

and

Department of John Williams, Esquire Natural 3900 Commonwealth Boulevard

Resources Tallahassee, Florida 32303

For Intervenor: Jerrold Stern, Esquire Lee County Post Office Box 398

Fort Myers, Florida 33902 ISSUE

Whether respondent Bonita Beach Club Association, Inc., is entitled to a permit, under Section 161.041, Florida Statutes (1979), authorizing the construction (for shore protection purposes) of a 600 linear foot rip-rap revetment in front of the Bonita Beach Club seawall and below the line of mean high water on Little Hickory Island, Lee County, Florida.

BACKGROUND

Respondent Bonita Beach Club Association, Inc. ("Applicant") represents the owners of a beachfront condominium located on Little Hickory Island, a barrier island south of Fort Myers at Bonita Beach, Florida. In October, 1980, Applicant applied to respondent Department of Natural Resources ("DNR") for a permit to place a rock revetment below the mean high waterline and along the seaward face of an existing seawall. The stated purpose of the proposed revetment was "to help strengthen the seawall and stop the erosion at the base of the seawall . . . ." (R-1.) 1/

On November 21, 1980, DNR acknowledged the application, and requested additional information. 2/ The Applicant responded, and on January 26, 1981, DNR notified Applicant that its application was complete and final action would be taken by April 21, 1981. (R-1.)

DNR's Bureau of Beaches and Shores recommended that the Governor and Cabinet, as head of DNR, approve the application subject to Applicant's acceptance of certain design, construction, public access, and reporting conditions. (R-12.) One of those conditions incorporated an agreement (R-11) by Applicant that it would provide public access to the beaches north of its property by means of an easement; the easement would be 7 feet wide and traverse the Applicant's land from north to south in the vicinity of the existing seawall. 3/

On March 16, 1981, a petition for administrative hearing was filed with DNR by petitioners, Seascape Condominium Association, Inc., Casa Bonita I Condominium Association, Inc., Casa Bonita II Condominium Association, Inc., and Casa Grande Condominium Association, Inc. The petitioners opposed issuance of the requested permit and alleged that they owned property south of and adjacent to the Applicant's property; that the proposed revetment, if approved, would substantially affect their interests by accelerating the loss of sand from their property, eroding the abutting beaches, and causing disfiguration and despoilage of the shoreline; that the proposed revetment would significantly affect beaches and sand dune systems seaward of petitioners' property; and that the petitioners' recreational use of sovereignty lands, held in trust by the State, would be prejudiced. On March 18, 1981, the petitioners' request for hearing was granted by DNR, and this case was referred to the Division of Administrative Hearings for the conducting of a Section 120.57 hearing.

Hearing was thereafter set for June 11-12, 1981--dates agreed upon by the parties. At the request of DNR, hearing was subsequently rescheduled for June 18-19, 1981. Thereafter, petitioner Casa Bonita I Condominium Association, Inc., moved for a continuance; the motion was granted and hearing was reset for July 23-24, 1981.

On June 5, 1981, Lee County moved to intervene as a party on grounds that it owned nearby property (within 1,000 feet of the project site) which "could be adversely affected by the proposed project." By order dated June 17, 1981, the motion was granted.

On June 1, 1981, petitioner Casa Grande Association, Inc., agreed to withdraw from this proceeding. On June 5, 1981, petitioner Seascape Condominium III Association, Inc. filed a notice of voluntary dismissal based on a settlement agreement reached with Applicant. The style of this case has now been modified accordingly.

At the final hearing, the parties assumed the following positions: 4/ Parties Positions

Applicant and DNR The permit should be issued. The

revetment project complies with Section 161.041, Florida Statutes (1979), and Chapter 165-24, Florida Administrative code; it has been approved by the Trustees of the Internal Improvement Trust Fund and the Florida Department of Environmental Regulation.

Investigation of alternative means of shore protection is

not relevant to permit approval.

Petitioners:

Seascape Condominium I The proposed revetment is only and II Associations, acceptable if adequate,

Inc., and Lee County convenient and permanent public

access from beaches south of the revetment to beaches north is provided by Applicant.

Casa Bonita I and II The application should be denied Condominium because the proposed revetment Associations, Inc., does not comply with the

and Lee County requirements of Section 161.041,

Florida Statutes. The project will cause beach erosion and endangerment to beaches, dunes, and structures adjacent to the site and alternative means of protecting the shore are available.

The Applicant and DNR called as their witnesses: Clifford L. Truitt, chief engineer of DNR's Bureau of Beaches and Shores; Richard Cantrell, dredge and fill supervisor for the Florida Department of Environmental Regulation; and David T. Tackney, a registered professional engineer. Respondents' Exhibit Nos.

1 through 14 were received into evidence.

Lee County and petitioners Casa Bonita I and II Condominium Associations, Inc. , called Dinesh Sharma, an environmental consultant and offered Intervenor's Exhibit Nos. 1 and 2 and Petitioners' Exhibit Nos. 1 through 4 into evidence, each of which was received.

Petitioners Seascape Condominium I and II Associations, Inc., were not represented at hearing, although several members of those associations testified as interested members of the public and made their concerns known. Upon inquiry, it was determined that the individual who sought to represent these corporations was not a "qualified" lay representative within the meaning of Section 120.62(2), Florida Statutes (1979). 5/

Since Applicant proposes a private use of sovereignty lands--lands held by the State in trust for all the people--and the proposed revetment may affect the public's use and access to its beaches, the general public was allowed to present testimony or written evidence at the hearing. 6/ Numerous persons expressed concerns about the proposed revetment and its short- and long-term effects.

After hearing, two letters, with attachments, were received which related to the subject matter of this case and may have constituted ex parte communications proscribed by Section 120.66(2), Florida Statutes (1979). The parties were thus notified that such communications had been received and given an opportunity to respond.

Applicant and DNR filed responses asking that the two letters, with attachments, be denied consideration because, inter alia, they were unable to cross-examine the authors concerning the contents.

Parties to Section 120.57 proceedings are guaranteed the right to cross- examine witnesses when testimony is taken or documents are made a part of the record. Sections 120.58(1)(f), 120.57(1)(b)4, Fla. Stat. (1979). If the letters complained of were accepted as evidence, the Applicant and DNR would be deprived of their right to cross-examine. Accordingly, their request is granted; the two letters, with attachments, described in Notices dated September

16 and 25, 1981, are rejected as evidence in this proceeding. However, they are made a part of the record pursuant to Section 120.66.

At the close of hearing, the parties were allowed to file proposed findings of fact and conclusions of law within 14 days from the date the last party received a copy of the transcript of hearing. It was further agreed that the

1. day period for submittal of the recommended order would begin when the parties' proposed findings were filed. The parties' proposed findings were subsequently filed by September 8, 1981.

   
   

   Based on the evidence presented at hearing, the following facts are determined:

   
   

   FINDINGS OF FACT I.

   The Problem: A Seawall In Danger of Collapse

   
   

   1. Applicant is an incorporated condominium association which owns the Gulf front property of Bonita Beach Club, a residential condominium located on the northern portion of a barrier island known as Little Hickory Island. The island is south of Fort Myers and part of Lee County. (Testimony of Truitt, Tackney; R-1.)

   2. Applicant's Gulf front property is protected by a 600-foot seawall; that seawall, exposed to wave and storm attack, is now in the beginning stages of failure. Applicant seeks a permit to place a revetment along the entire seaward face of the seawall "to help strengthen the seawall and stop the erosion at [its] . . . base . . . ." (R-1.) (Testimony of Truitt, Tackney, Sharma; R-1)

      
      

   3. The seawall shows evidence of profile lowering; sand has been scoured from its face, exposing 6 to 7 feet of wall above the sand line. Its face shows abrasions from buffeting by sand and sediment; its joints have begun to separate, allowing sand from behind the wall to leak through the cracks. Under high tide conditions, the seaward portions of the seawall are under water; under other tidal conditions there is no more than 6 to 7 feet of wetsand area between the base of the wall and the waterline. (Testimony of Truitt.)

      
      

   4. The present condition of the seawall is mainly due to two processes:

      1. the long-term shoreline migration of Little Hickory Island, and (2) profile steepening, scouring, and accelerated sand loss in the immediate vicinity of Applicant's seawall. There is a south-to-north longshore or littoral sand transport in the area off Little Hickory Island, a northward flowing "river of sand." This phenomenon has caused sand loss to beaches in front of and south of Applicant's property and sand accretion to the undeveloped northern beaches north of the island. The localized profile steepening and accelerating sand loss at Applicant's seawall is caused by waves hitting the vertical seawall, then rebounding-- causing removal of sand at the foot of the wall and steepening of the offshore profile. This localized sand loss and erosion has been aggravated by the original placement and alignment of Applicant's seawall. 7/ The seawall protrudes further seaward than adjacent seawalls or bulkheads. 8/ This protrusion, together with the wall's irregular shape, disrupts the otherwise straight shoreline and acts as a headland: an abutment which concentrates wave energy and longshore currents and causes accelerated erosion and sand loss in the immediate area. The effects of the northerly longshore drift and the localized sand loss have been dramatic: between 1974 and 1980 the sandy beach in front of Applicant's seawall has receded landward 50-60 feet. (Testimony of Truitt, Tackney, Sharma; P-1, P-2, P-3, P-4, 1-2, R-3, R-4, R-5,

         R-6, R-7.)

         
         

   5. In addition, the shoreline of Little Hickory Island is gradually and inexorably eroding. This is due to long-term backyard erosion, a natural

      )process by which barrier islands gradually migrate landward. (Testimony of Sharma, Tackney, Truitt.)

      
      

      II.

      
      

      Applicant's Solution: Place a Rock Revetment in Front of the Seawall

      
      

   6. In October, 1980, Applicant applied for a DNR permit to place a rock revetment along the existing seawall. By January, 1981, DNR's Bureau of Beaches and Shores determined that all of the documentation required by its rules 9/ had been submitted and the application was complete. Subsequently, the Applicant agreed to several design changes suggested by DNR and agreed to a permit condition requiring it to dedicate a travel easement to assure continued public access to beaches north of its property. As so modified, DNR proposes to issue the requested permit. (Testimony of Truitt; R-1, -R-11, R-12.)

   7. The proposed permit, with conditions, is contained in Respondent's Exhibits R-1, R-11, and R-12. 10/ The proposed shore protection structure is described as a rock toe-scour revetment to be placed along the seaward face of Applicant's existing seawall. The revetment extends 7 feet in the shore-normal direction and approximately 600 linear feet in the shore-parallel direction. It will consist of lime-rock boulders of various sizes stacked on top of each other. The top layer of rocks will be the largest, 75 percent of them weighing greater than 500 pounds. The rock revetment will rest on a layer of Filter-X mat to help stabilize the underlying sand. The revetment's elevation will range from 0.0 feet (NGVD) 11/ at the toe of the seawall to -0.5 feet (NGVD) at 7 feet seaward. Its slope will be no greater than 3 horizontal units to 1 vertical unit. The mean high waterline will intercept the revetment-seawall interface at a maximum elevation of approximately +1.5 feet (NGVD). (R-1, R-11, R-12.)

      
      

      III.

      
      

      The Effects of the Proposed Revetment

      
      

   8. The proposed revetment will fulfill its primary purpose: it will protect the Applicant's seawall by reducing the amount of sand that is scoured and removed from its face and it will add significant structural stability to the wall. It will provide these benefits because its sloping surface will intercept and dissipate waves which would otherwise hit and rebound off the vertical seawall. Because wave deflection energy will be lessened, steepening of the offshore profile will be reduced and accelerating longshore currents will be slowed. It will also protect the seawall against storm, but not hurricane, damage. (Testimony of Truitt, Tackney.)

      
      

   9. However, the proposed rock revetment will not stop the migration of sands from the southern to the northern reaches of Little Hickory Island; the northward flowing longshore currents will continue. Neither will the revetment protect Applicant's property against long-term background erosion; the entire island will continue its steady easterly retreat to the mainland. Scouring at the ends of the existing seawall will be reduced, but not eliminated. Eddy currents at the ends of the revetment will cause some localized scouring to take place. Wave and water action will take its toll on the revetment; it will require periodic repair and rebuilding in the years ahead. (Testimony of Sharma, Tackney, Truitt.)

      
      

   10. Although the testimony is conflicting, the weight of the evidence is that the proposed revetment will not adversely affect adjacent beaches and the offshore profile. 12/ While localized scouring will not be eliminated, the evidence indicates that the rates will be lessened--that the existing erosion problems will be mitigated, not aggravated. With reduced localized scouring, longshore currents will not accelerate, and the offshore profile will not deepen at increasing rates. The expert witnesses agreed that, at least for the short term, the proposed revetment will protect the existing seawall against at least three-year storm conditions. (Testimony of Tackney, Truitt, Sharma.)

       
       

   11. While the revetment will not accelerate or contribute to the erosion of adjacent lands, it will impair the public's use of the beaches in front of and to the north of the Applicant's seawall. Because the revetment will protrude 6 to 7 feet seaward from the seawall--intercepting the mean high waterline--the public will be precluded from traversing the beaches in front of Applicant's property. That narrow corridor of wet-sand beach now permits dry passage only during low tide. With placement of the rock revetment on that

       passageway, it will become impassable to most people who use the Little Hickory Island beaches. 13/ (Testimony of Sharma, Member of the Public.)

       
       

   12. Generally, rip-rap revetments, such as that proposed by Applicant, do not eliminate erosion or cause sand to accrete. Rather, they tend to increase erosion and escarping beyond that which would occur if a shoreline is left in its natural, unaltered condition. (Testimony of Sharma, Truitt, Tackney.)

       
       

       IV.

       
       

       DNR Coastal Construction Permits: Practice and Policy

       
       

   13. There may be alternatives to the proposed revetment which will not endanger the Applicant's upland structure or block the public's access to beaches in front of and north of Applicant's property. 14/ DNR does not require the consideration of shore protection alternatives when it processes coastal construction permit applications. Neither, in its view, is public access to adjacent beaches a matter of regulatory concern in this licensing process. 15/ At the staff level of DNR, the sole consideration is engineering design of the proposed structure:

       
       

       At the level of staff of the Bureau of Beaches and Shores there are no other con- siderations other than simply engineering judgments on the appropriateness or other considerations of the design. I have no idea what the governor and cabinet or exec- utive director may consider. (Tr. 170.)

       
       

       This view of the agency's duty helps explain why DNR has never denied an application to construct a shore protection revetment, although it has suggested design modifications, as was done in this case. (Testimony of Truitt.)

       
       

       V.

       
       

       Interests of Objectors to Proposed Revetment Project

       
       

   14. DNR requires applicants for coastal construction permits to provide a map showing the location of the proposed erosion control structure and the shoreline for at least 1,000 feet on each side. Applicants are also required to provide a list of the names and addresses from the latest county tax role of all riparian property owners within 1,000 feet. It is DNR practice, in accordance with its rule, Section 165-24.07, Florida Administrative Code, to mail notice of a proposed project to those riparian property owners. By rule, such interested persons or objectors to a proposed project have the right to appear and make their positions known to the Governor and Cabinet at the time the agency decision is made. Id. (Testimony of Truitt; R-1.)

       
       

   15. Petitioners, Casa Bonita I and II Condominium Associations, Inc., and Seascape Condominium I and II Associations, Inc., assert that the proposed revetment will adversely affect their rights as riparian owners, that it will cause erosion of their shorelines; they also allege that it will prejudice their recreational use of sovereignty lands--the public's beaches lying below the line of mean high water. Relative to the site of the proposed revetment, Casa Bonita I Condominium Association, Inc., lies 1,350 to 1,400 feet south; Casa Bonita II Condominium Association, Inc., 670 feet south; Seascape Condominium I and II

       Associations, Inc., lie immediately adjacent to the site. (Testimony of Tackney; R-1, R-14.)

       
       

   16. No evidence was presented to establish that intervenor Lee County is a riparian property owner within 1,000 feet of the proposed revetment. The Lee County Board of County Commissioners were, however, notified of the instant application and given an opportunity to object.

       
       

   17. The parties have submitted proposed findings of fact; to the extent such findings are incorporated in this Recommended order, they are adopted; otherwise they are rejected as irrelevant to the issues presented or unsupported by the preponderance of evidence.

       
       

       CONCLUSIONS OF LAW

       
       

   18. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1979).

       
       

   19. This is a licensing proceeding under Section 161.041, Florida Statutes (1979), which provides:

       
       

       Permits required.--If any person, firm, corporation, county, municipality, town- ship, special district, or any public agency shall desire to make any coastal construction or reconstruction or change of existing structures, or any construc- tion or physical activity undertaken spe- cifically for shore protection purposes, or other structures and physical activity including groins, jetties, moles, break- waters, seawalls, revetments, artificial nourishment, inlet sediment bypassing, excavation or maintenance dredging of inlet channels or other deposition or removal of beach material or construction

       of other structures if of a solid or highly impermeable design, upon sovereignty lands of Florida, below the mean high waterline of any tidal water of the state, a coastal construction permit must be obtained from the Department of Natural Resources prior to the commencement of such work. Appli- cation for coastal construction permits as defined above shall be made to the Division of Marine Resources upon such terms and conditions as set by the department.

       
       

   20. Applicant seeks a permit to place a 600-foot rock revetment (for shore protection purposes) upon the State's sovereignty lands--below the mean high waterline of the Gulf of Mexico. The revetment will be placed on the wet-sand area or the foreshore of the Little Hickory Island. While it will provide limited protection to an endangered seawall, it will also block or interfere with the public's use and enjoyment of the nearby beaches.

   21. Petitioners, alleging adverse affects on their property and access to nearby beaches, oppose the issuance of the requested permit. Applicant responds that petitioners lack standing as parties because they failed to prove that licensing of the proposed revetment would determine or affect their substantial interests. See, Sections 120.57(1), 120.52(10), Fla. Stat. (1979); Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 357 So.2d 1215 (Fla. 1978).

       
       

   22. The Administrative Procedure Act ("APA") 16/ allows agencies to adopt rules granting persons the right to participate in the formulation of agency action. Section 120.52(10)(b), Fla. Stat. (1979). Persons may exercise such rights even though they "may not necessarily possess any interests which are adversely, or even substantially, affected by the proposed [agency] action." Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351, 1354 (Fla. 1st DCA 1981). The APA recognizes that agencies may broaden the zone of party representation at the administrative level, that--because of the nature of agency action involved--agencies may encourage the participation of "interested persons." Id.; also see, City of Key West v. Askew, 324 So.2d 655 (Fla. 1st DCA 1976).

       
       

   23. In coastal construction licensing proceedings, DNR has adopted rules which entitle certain persons to participate in the formulation of its final decision:

       
       

       165-24.07 Processing Procedure.

       * * *

       1. If the proposed project is accept- able to the Bureau, public notice will be mailed to owners of record of the riparian property within one thousand feet (1,000') of the proposed construction, and to such other persons or agencies as are known to be interested in the proposed erosion con-

          trol structure. Thirty (30) calandar [sic] days shall be allowed for response to the public notice.

          
          

       2. Upon expiration of the public

       notice and after due consideration of com- ments received in response to that notice, the applicant and all persons who have filed objection to the proposed erosion control structures will be notified by mail of the recommendation which will be made to the Executive Board of the Department (Gov- ernor and Cabinet) and the date, time and

       place when the recommendation will be heard.

       The applicant and all interested parties may appear and/or be represented at that time and make their positions known to the Executive Board of the Department.

       
       

   24. DNR's decision to broaden party participation in coastal construction licensing decisions implicitly recognizes the public trust which is impressed on sovereignty lands. In 1893, the Florida Supreme Court first enunciated the public trust doctrine--in State v. Black River Phosphate Company, 13 So. 640, 645 (Fla. 1893):

       [T]he navigable waters of the state and the soil beneath them . . . were the property

       . . . of the people of the state in their united or sovereign capacity, and were held, not for the purposes of sale or conversion into other values, . . . but for the use

       and enjoyment of the same by all the people of the state . . . .

       
       

       At common law, the title to sovereignty lands is "held in trust for the people for purposes of navigation, fishing, bathing, and similar uses." Hayes v.

       Bowman, 91 So.2d 795, 799 (Fla. 1957). It is property which "should be devoted to the fulfillment of the purposes of the trust, to wit: the service of the people." Id.

       
       

   25. In 1968, the public trust doctrine was elevated to constitutional status in Florida:

       
       

       Sovereignty lands.--The title to lands under navigable waters . . . including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. . . . Private use of portions of such lands may be authorized by law, but only when not contrary to the pub- lic interest. Art. X, Section 11, Fla.

       Const. (1968)

       
       

   26. Coastal construction permits issued under Section 161.041, by definition, involve use (in this case, the private use) of sovereignty lands held in trust for all the people. 17/ It is altogether reasonable that DNR should, by rule, accord to benificiaries of that trust the right to participate in decisions affecting the trust res.

       
       

   27. Moreover, DNR's substantive rules which implement the coastal construction permitting law seemingly make the extent to which such construction interferes with use of sovereignty lands a matter of agency concern:

       
       

       165-24.08 Coastal construction permit conditions.

       * * *

       (2) By accepting the [coastal construction] permit, the applicant agrees to:

       * * *

       (d) Obstruct or impair the use of the

       beach by the public in the areas seaward of the mean high water only to the extent

       determined by the Department to be unavoidable.

       
       

   28. Lastly, coastal construction permitting is authorized by Part I, Chapter 161, Florida Statutes (1979), the "Beach and Shore Preservation Act." A stated purpose of this Act is to protect the State's coastal natural resources from impairment or destruction. See, Section 161.053, Fla. Stat. (1979). Consequently, the "Environmental Protection Act of 1971" grants citizens, including corporations, the statutory right to intervene as parties in coastal

       construction licensing proceedings on the filing of a verified pleading asserting that the activity to be licensed will impair the natural resources of the State. Section 403.412(5), Fla. Stat. (1979). In Florida Wildlife Federation v. State Department of Environmental Regulation, 390 So.2d 64 (Fla. 1980), the Florida Supreme Court held that by enacting Section 403.412, the Environmental Protection Act, the legislature declared "the protection of the environment to be a collective responsibility . . . ." Id. at 68. In the instant case, petitioners did not invoke (by filing the requisite verified petition) the right to intervene conferred by Section 403.412, although their petition alleged, in part, that Applicant's proposed activity would impair the natural resources of the State. However, Section 403.412 reveals a legislative policy to facilitate and broaden citizen participation in State environmental licensing decisions, not a policy to discourage or unnecessarily restrict such participation.

       
       

   29. Based on the foregoing, it is concluded that petitioners and intervenor demonstrated sufficient interest in and opposition to DNR's proposed licensing decision so as to entitle them to standing as parties under Rule 165- 24.07(3) and (4), Florida Administrative Code.

       
       

   30. Applicants ordinarily have the burden of demonstrating entitlement to the requested permit. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 787, 789 (Fla. 1st DCA 1981). In the instant case, it is concluded that the Applicant has adequately met this burden; it has shown by a preponderance of evidence that its application, with the agreed upon conditions, fulfills the requirements of Section 161.041, as implemented by DNR rules and practice. For their part, petitioners and intervenor have not proved the contrary by evidence of at least equivalent quality. See, Florida Department of Transportation, supra.

       
       

   31. This conclusion rests on an interpretation of Section 161.041 and DNR's implementing rules urged by DNR and Applicant. 18/ Under that interpretation, DNR's duty is narrowly confined to evaluating the engineering design of a specific shore protection structure proposed by an applicant, i.e., DNR does not determine whether the proposal is the optimum shore protection method available or whether there are other shore protect ion techniques which are more effective and less burdensome to coastal resources in the short or long term. 19/

       
       

   32. This agency interpretation has been established by past agency practice and cannot be changed without a record foundation. Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 1280 (Fla. 1980). DNR rules do not explicitly require applicants to evaluate alternative shore protection actions or select the best of several available alternatives. 20/ Moreover, APA proceedings cannot be used to expand an agency's authority, or an applicant's burden, beyond the parameters of the substantive statutory scheme and implementing rules.

       
       

   33. The petitioners and intervenor contend that the Applicant failed to initially supply, in sufficient detail, all information required by the application form and DNR rules--that such failure provides sufficient ground to deny the application. This contention overlooks the purpose of Section 120.57 proceedings; they are "intended to formulate agency action, not to review action taken earlier and preliminarily." McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977). The evidence submitted at hearing was sufficient to overcome any minor irregularities associated with Applicant's initial submission to the agency.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the application of Bonita Beach Club Condominium Association, Inc., for a coastal construction permit be GRANTED, subject to the agreed-upon conditions described above, including the dedication of a travel easement allowing the public to circumvent the 600-foot rock revetment. 21/

DONE AND RECOMMENDED this 16th day of October, 1981, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Telephone: (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1981.

ENDNOTES

1/ Petitioners', Respondents', and Intervenor's Exhibits will be referred to as "P- ," "R- ," and "I- ," respectively. Pages in the transcript of hearing will be referred to as "Tr. ."

2/ This delay was caused by the Applicant's filing of the application with DNR's Bureau of State Land Management rather than the Bureau of Beaches and Shores, the bureau responsible for processing coastal construction permit applications.

3/ Several objections had been received to the proposed revetment on grounds that it would block public access to beach areas north of the property. (R-12.)

4/ These positions were identified by the parties in their prehearing stipulation dated July 13, 1981.

5/ At the time of hearing, Rule 28-5.104, Florida Administrative Code, required presiding officers to "make diligent inquiry to assure that the representative is capable of preserving the rights of the party." See, The Florida Bar v.

Moses, 380 So.2d 412 (Fla. 1980)

6/ See, Article X, Section 11, Fla. Const. (1968); Section 120.57(1)(b)4, Fla. Stat. (1979)

7/ Applicant is experiencing more severe wave and water-related problems at its shoreline than its neighbors on Little Hickory Island. (Tr. 202.)

8/ A portion of Applicant's seawall juts out 30 to 40 feet further seaward than adjacent property. (Tr. 200-201.)

9/ Chapter 165-24, F.A.C. 10/ R-12 amends R-1.

11/ Elevation is referenced to National Geodetic Vertical Datum (NGVD).

12/ The contrary testimony of Dinesh C. Sharma is rejected as unpersuasive.

13/ Many people in the area traverse the beach in front of Applicant's property in order to reach the northern spit of the island which is undeveloped and pristine.

14/ Members of the public raised the specter that, if this revetment is allowed, a solid line or rock revetments will eventually be erected on the island's beaches. In this way, they fear they will lose their right to enjoy the sandy beaches.

15/ This position was reiterated by DNR in its post-hearing filing despite the fact that the structure will be constructed below mean high water, on sovereignty lands held in trust for the public's use and enjoyment.

16/ Chapter 120, Fla. Stat. (1979).

17/ However, prior to issuing a permit, an applicant must obtain the consent of the Board of Trustees of the Internal Improvement Trust Fund, the owner and manager of sovereignty lands. Section 253.77 Fla. Stat. (Supp. 1980). The Trustees exercise broad discretion in deciding whether a proposed use should be allowed. See, State v. Florida National Properties, Inc., 338 So.2d 13 (Fla.

1976); Hayes v. Bowman, supra at 802.

18/ Great weight is given to an agency's interpretation of its own rules and indigenous statute. State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823, 828 (Fla.

1973).

19/ This is a restrictive interpretation which is not compelled by the language of Section 161.041, Florida Statutes (1979). There is a significant difference between the exercise of governmental power over the use of public lands and governmental power (such as zoning) which limits a person's use of his private property.

20/ Section 161.0415, Florida Statutes (1979), requires agencies to cite specific authorizing rules when requesting additional information from an applicant.

21/ This recommendation assumes that the Trustees of the Internal Improvement Trust Fund have previously consented to this proposed use of sovereignty lands. See, Section 253.77, Fla. Stat. (Supp. 1980).

COPIES FURNISHED:

John C. Coleman, Esquire, and Robert J. Coleman, Esquire Post Office Box 2089

Fort Myers, Florida 33902

Terry Lewis, Esquire Post Office Box 1876

Tallahassee, Florida 32302

John Williams, Esquire Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Jerrold Stern, Esquire Lee County, Florida Post Office Box 398

Fort Myers, Florida 33902

Dr. Elton Gissendanner, Director Department of Natural Resources Executive Suite

3900 Commonwealth Boulevard

Tallahassee, FlOrida 32303

Docket for Case No: 81-000550

Orders for Case No: 81-000550