STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGES BLAHA, )

)

Petitioner, )

)

vs. ) CASE NO. 82-095

) DEPARTMENT OF NATURAL RESOURCES, ) BUREAU OF BEACHES AND SHORES AND ) AQUARINA DEVELOPMENTS INC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on March 1, 1982, in Melbourne, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Georges Blaha, pro se

280 Flamingo Drive

Melbourne Beach, Florida 32951

For Respondent Deborah A. Getzoff, Esquire Department of Assistant Department Attorney Natural Commonwealth Building Resources: 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

For Respondent Clifford A. Schulman, Esquire Aquarina GREENBERG TRAURIG ASKEW HOFFMAN

Development, LIPOFF QUENTEL & WOLFF, P.A. Inc. 1401 Brickell Avenue, PH-1

Miami, Florida 33131

ISSUE

The issue for determination at the final hearing was whether the Petitioner Blaha possessed the requisite standing to maintain this action and if so, whether the Applicant Aquarina Developments, Inc., established by a preponderance of the evidence entitlement to a permit from the Coastal Construction Control Line ("CCCL") which would authorize construction of the following: (1) twelve above-ground balconies extending five feet over the CCCL;

(2) two roof overhangs extending approximately one foot over the CCCL; (3) two dune walkovers and four decks providing elevated beach access; and (4) a temporary fence extending no more than five feet beyond the CCCL. At the final hearing, the Respondent Aquarina Developments, Inc., (hereafter "Aquarina" or "Applicant") offered Respondent's Exhibits 1-16, which were admitted into

evidence. Edward Fleis, Howard J. Teas, Bert Leltz and Ross Witham testified on behalf of the Respondents. Peter Pritchard, Rob Lee and Georges Blaha testified for the Petitioner. Additionally, public comment was taken as provided at Section 120.57(1)(b)(4), Florida Statutes.

A Proposed Recommended Order has been submitted by the Respondent Aquarina Developments, Inc. To the extent that the proposed findings submitted by Respondent are not reflected in this Order, they are rejected as unsupported by the weight of credible evidence or as being immaterial to the results reached.

PROCEDURAL BACKGROUND

On July 1, 1981, Respondent Aquarina applied to the Department of Natural Resources for a coastal construction permit under Section 161.053(4)(a), Florida Statutes, and Rule 16B-33.08, Florida Administrative Code, to construct certain structures seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida. Respondent Aquarina proposed to build a portion of twelve cantilevered balconies over the CCCL, as well as two roof overhang sections on two condominium buildings, a temporary construction fence around those buildings, four elevated wooden decks, and two dune crossovers to serve a portion of its approved Planned Unit Development ("PUD").

After the Department issued its Notice of Intent to grant the requested permit for construction under Section 161.053, Florida Statutes, Petitioner Blaha filed objections to the application and sought a formal hearing Pursuant to Section 120.57, Florida Statutes. The Executive Director of the Department referred the request to the Division of Administrative Hearings. After the Applicant was granted permission to intervene in this cause, the instant case (No. 82-095) was consolidated on February 10, 1982, by Order of the Hearing Officer, with other pending cases involving the Applicant. In October 1981, the Hearing Officer ruled on the basis of affidavits that Petitioner Blaha could represent only himself in the consolidated proceedings and was not qualified to represent others under Rule 28-5.105, Florida Administrative Code. In the instant case, Petitioner Blaha represented himself at the final hearing and was the only Petitioner to enter an appearance.

FINDINGS OF FACT

1. By application No. 775-020.61 filed on July 1, 1981, Respondent Aquarina requested a coastal construction permit for construction of portions of twelve cantilevered balconies, two roof overhang sections, a temporary construction fence, four elevated wooden decks, and two dune crossovers, all seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida.

   
   

2. The purpose of the proposed structures is to enhance utilization of the beach by residents of Aquarina's PUD located between the Atlantic Ocean and Mullet Creek, a tributary of the Indian River in South Brevard County, while at the same time inhibiting the deleterious effects of unrestrained pedestrian and vehicular access across the beach dune on the property. Respondent Aquarina's project is located on the barrier islands separated from the mainland by the Indian River, thirteen miles south of Melbourne and five miles north of Indian River County. Aquarina proposes to develop a condominium community approved as a PUD by Brevard County, with a projected population of 3,400 persons including 1,600 residential units, a commercial area, and 500 hotel rooms. The project includes at least two condo- mini urn buildings located entirely landward of the CCCL except for the following specific portions:

   1. Twelve cantilevered balconies ex- tending approximately five feet beyond the CCCL but not touching the ground;

   2. Two roof overhang sections extending approximately one foot beyond the CCCL;

   3. Two beach-dune walkover structures to be constructed a maximum of seventy-

      five feet seaward of the CCCL, which are to provide controlled beach access;

   4. Four elevated wooden observation decks constituting integral parts of the walkover structures;

   5. A temporary construction fence extending no more than five feet beyond the CCCL.

      
      

3. On or about November 20, 1981, the Department indicated its intent to recommend to the Executive Director the issuance of the Applicant's coastal construction permit. After the granting of a requested extension of time, Petitioner Blaha filed objections and a Petition for the Initiation of Formal Proceedings under Section 120.57, Florida Statutes. The Petition raised three issues:

   
   

   1. Whether construction of the proposed minor structures seaward of the CCCT would harm sea turtles inhabiting the area at issue;

   2. Whether a new CCCL should have been set based on changing conditions in the area;

   3. Whether the additional shading caused by the proposed structures would harm the dune vegetation system.

      
      

4. At the beginning of the hearing, the Hearing Officer heard argument and received evidence on the issues raised by the Motions to Dismiss filed by the Department and the Applicant. The Respondent's Motions raised three issues:

   
   

   1. Whether the Petitioner had standing to initiate this cause;

   2. Whether the alleged impact that the Applicant's proposed coastal construction would have on sea turtles lies within the jurisdiction of the Department and the Hearing Officer under Chapter 161 of the Florida Statutes; and

   3. Whether the exact configuration of the CCCL is a proper subject for consi- deration at a hearing challenging the

      proposed issuance of a coastal construction permit.

      
      

5. Petitioner Blaha admitted that he did not live on the beach at issue and in fact lived on the west side of State Road A1A, three miles to the north of the Applicant's proposed project. The Petitioner stated that he was the Director of the Space Coast Branch of Friends of Animals, an environmental

   organization concerned about wildlife, although not representing the organization in this proceeding, and that he had a general interest in protecting the beach from erosion, a problem affecting everyone on the barrier island. In response to the argument that Petitioner Blaha had no special interest differing in kind from the interests of the general public, the Petitioner alleged that he runs on the beach and observes the sea turtles, arguing that this evinces a more than average interest in protecting the beach and its wildlife.

   
   

6. The Hearing Officer also heard argument on whether the Department has jurisdiction to consider potential impacts on the nesting habitats of sea turtles from proposed coastal construction, under Chapter 161, Florida Statutes. Petitioner Blaha urged that although Section 161.053, Florida Statutes and the rules promulgated thereunder do not address sea turtles and their protection, the statute should be so interpreted. The Department responded that any jurisdiction it may have over sea turtles would be reposited in its Marine Resource Division, not in the permitting procedures for a coastal construction permit. In addition, federal laws protect endangered sea turtles, and the federal government has primary jurisdiction over the regulation of the nesting habitats of such sea turtles.

   
   

7. Similarly, the Applicant and the Department pointed out that the Petitioner's criticism of the placement of the present CCCL falls outside the scope of a hearing on the issuance of a coastal construction permit, since Section 120.54, Florida Statutes provides for rulemaking proceedings for those attempting to change a rule established CCCL and Rule 16B-33.10, Florida Administrative Code, contains provisions for CCCL revisions or modifications on application of a riparian owner of property at or on the CCCL. Petitioner Blaha is not a riparian property owner and this was not a proceeding under Section 120.54, Florida Statutes.

   
   

8. Respondent Aquarina established that it had taken and would continue to take all reasonable actions necessary to ensure the protection of sea turtles that inhabit the site through public relations campaigns and public advertisements to educate the public and especially the residents of the PUD and through architectural design efforts and dareful construction practices that will limit the impact of the proposed development on sea turtles and their nesting habitats. Moreover, to the extent that the development might have an impact on sea turtles, the source of the impact would not primarily be the structures at issue in these proceedings, but the buildings, parking lots, and other human habitation lying landward of the CCCL.

   
   

9. The proposed temporary construction fence to be placed five feet beyond the CCCL will help conserve the dunes by limiting the potential impact of construction, and the Respondent Aquarina has agreed to restore that affected area to its natural state upon the completion of construction.

   
   

10. Most importantly, the proposed dune crossovers will protect the dunes from the destruction that is occurring in the dunes to the north of the project and on the project site itself because of unrestrained pedestrian and vehicular traffic over and/or through the dunes and the accompanying destruction of dune vegetation in those areas. The dune crossovers are wooden walkways on raised pilings designed to have as little contact with the dunes as possible, with railings to restrain pedestrians from straying away from this direct access from the condominiums to the beach. The crossovers will make it unnecessary and undesirable for residents and visitors to create alternative foot paths through the heavy dune vegetation to the beach. Coupled with the educational program

    already being implemented by Aquarina, the dune crossovers should help to conserve the dunes.

    
    

11. The Respondent Aquarina established that the incremental shading caused by the proposed roof overhangs extending about one foot beyond the CCCL and the cantilevered balconies extending approximately five feet beyond the CCCL would not significantly add to the shading from the buildings themselves, which lie entirely landward of the CCCL. The evidence showed that even the impact of the shading from the landward buildings would have no significant impact on the dune vegetation system or increase the rate of erosion or deterioration of the dune. See Rule 16B-33.02(23)(b), Florida Administrative Code. The additional impact from the minor structures for which the Respondent Aquarina seeks its permit should be minimal.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings. See Section 120.57(1), Florida Statutes.

    
    

13. Under Section 161.053(4), Florida Statutes, an applicant for a coastal construction permit must provide the Department with adequate engineering data on shoreline stability and storm tides, as well as other information to satisfy the Department that issuance of the permit is justified. Criteria for the review of the permit application derive from the recitation of legislative purpose in Section 161.053(1), "to preserve and protect [the beaches of the State] from imprudent construction," and require a method of establishing a coastal construction control line in affected counties

    
    

    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 [sic] protection of the beach-dune system, any proposed structure, and adjacent properties, rather than to define a seaward limit for upland structures. See Section 161.053(1), Florida Statutes (1981). (Emphasis added)

    
    

    In addition, Rule 16B-33.05, Florida Administrative Code, sets forth the Department's statement of policy on coastal construction permits. Essentially, the Department's policy on construction seaward of the coastal construction control line is to require "special structural and other design considerations" to protect all structures and adjacent properties, as well as the entire beach- dune system, Rule 16B-33.05(2), Florida Administrative Code, and more specifically, to require designs that will minimize erosive effects. Rule 16B- 33.05(3)(e). The Department expressly "...encourages the construction of elevated dune walkovers which are designed to protect the dune topography and dune vegetation from pedestrian traffic See Rule 16B-33.05(4). Rule 16B-33.07 sets forth the various structural and other design requirements necessary for approval of the permit application, and Rule 16B-33.08, Florida Administrative Code sets forth the procedures and required information for a permit application.

14. Petitioner Blaha lacks the requisite standing to contest the issuance of a coastal construction permit to Aquarina. Petitioner is neither an upland riparian owner aggrieved by the denial of a permit under Section 161.053(2), Suwannee River Area Council v. State Department of Community Affairs, 384 So.2d 1369 (Fla. 1st DCA 1980)(no statutory grant of standing), nor a neighboring landowner who has any interest not shared with the general public that will be directly affected by the proposed construction of the balconies, roof overhangs, and dune crossovers. See Sierra Club v. Morton, 405 U.S. 727, 733 (1972)(general allegations of interests in environmental protection do not satisfy the "zone of interests" test); United States Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9, 12-13 (Fla. 1974) (absent statutory grant of standing, a plaintiff must show special injury differing in kind from that of the public); and Hillsboro-Windsor Condominium Association v. Department of Natural Resources, 7 FALW 1691, Case No. AL-429, filed August 6, 1982 (adjacent property owners whose property would be eroded and destroyed by seaward construction have standing to contest the issuance of a coastal construction control line permit).

    
    

15. Moreover, the Petitioner Blaha has not asserted statutory standing in this proceeding Pursuant to Section 403.412(2)(a), Florida Statutes, so as to enable him to maintain this proceeding without the necessity of demonstrating that his own interests would be substantially affected or that he would suffer a special injury as a result of the granting of the requested permit. In cases such as the instant one involving protection of the state's air, water and natural resources, the legislature Pursuant to Article II, Section 7, Florida Constitution, has conferred on private citizen's statutory standing to contest activities which threaten the state's natural resources and scenic beauty. See Florida Wildlife Federation v. State Department of Environmental Regulation, et al., 390 So.2d 64 (Fla. 1980), setting forth the procedural steps which must be followed by private citizens asserting statutory standing Pursuant to Section 403.412(2)(a), Florida Statutes.

    
    

16. Neither Chapter 161, Florida Statutes regulating beach and shore preservation nor the Department's rules and regulations for an application for a coastal construction permit gives the Department the statutory authority to consider the potential impact that the proposed construction might have on sea turtles in the area. Until the legislature corrects this omission and vests specific statutory authority in a state agency to protect sea turtle habitats through permitting or other processes or acquires sea turtle habitats through state land acquisition programs, the best that can be achieved is a voluntary effort on the part of developers to protect sea turtles and other animals which are dependent on private as well as public property for their continued existence.

    
    

17. Moreover, the Department and the Hearing Officer in this proceeding do not have jurisdiction to reconsider or reset the existing and approved CCCL in Brevard County. Such a proceeding must either be initiated by rulemaking proceedings under the provisions of Section 120.54, Florida Statutes, or by a riparian owner adversely affected by the placement of the CCCL, under Rule 16B- 33.10, Florida Administrative Code.

    
    

18. The criteria for consideration in this proceeding is the adequacy of the design and construction of the proposed structure and its potential impact on dune vegetation, topography and beach erosion. The Respondent Aquarina meat its burden of proof in this proceeding through a preponderance of the evidence that the structures for which the Respondent requested a permit would have no significant deleterious effects on the dunes and the beach and that the crossovers should in fact enhance the protection of the dunes and beach. In

    addition, the Respondent Aquarina established that its program to educate its future residents as well as other citizens in the community about the need to protect sea turtles and the ways in which to avoid harming the turtles could eventually enhance their protection. Design specifications made a part of the projects plans should minimize its impact on any existing or future sea turtle nestings.

    
    

19. Issuing the coastal construction permit requested by the Respondent Aquarina will enable it to enhance protection of the dunes and beach area consistent with the policy of the Florida Legislature stated in Section 161.053(1) Florida Statutes and the policy of the Department stated in Rule 16B- 33.05, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Respondent Department of Natural Resources, through its Executive Director, grant the requested construction control permit to the Applicant Aquarina Developments, Inc., subject to the conditions stated in the proposed permit (No. BE-80), the draft of which was attached to the Department's letter of November 20, 1981, notifying Petitioner Blaha of the Department's intent to issue the requested permit.

DONE and ORDERED this 25th day of October, 1982, in Tallahassee, Florida.

SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 ApA1Achee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1982.

COPIES FURNISHED:

Georges Blaha

280 Flamingo Drive

Melbourne Beach, Florida 32951

Deborah A. Getzoff, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Clifford A. Schulman, Esquire GREENBERG TRAURIG ASKEW HOFFMAN LIPOFF QUENTEL & WOLFF, P.A.

1401 Brickell Avenue

Miami, Florida 33131

Henry Dean, Esquire General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Elton Gissendanner, Executive Director Department of Natural Resources

3900 Commonwealth Building

Tallahassee, Florida 32303

Docket for Case No: 82-000095

Orders for Case No: 82-000095