STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TED WISE AND SHIRLEY WISE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1177

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Walton Beach, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on July 21, 1983. In these proceedings, the parties have been represented by counsel:

APPEARANCES

For Petitioner: Joseph C. Jacobs, Esquire

John C. Pelham, Esquire

and Melissa Fletcher Allaman, Esquire ERVIN, VARN, ODOM & KITCHEN

Post Office Box 1170 Tallahassee, Florida 32322-1170

For Respondent: Deborah A. Getzoff, Esquire

Douglas Building

3900 Commonwealth Boulevard, Suite 1003

Tallahassee, Florida 32303

By letter dated March 16, 1983, Deborah E. Athos, Director of respondent's Division of Beaches and Shores, advised petitioners that the Department of Natural Resources (DNR) "has determined that your structure was not under construction Pursuant to the definition contained in 16B-33.02(24), Florida Administrative Code, prior to the reestablishment of the coastal construction control line for Walton County on December 29, 1982." By petition dated April 13, 1983, petitioners sought formal administrative proceedings and requested that "a recommended and final order be issued that their construction project is 'grandfathered'". No issue has been raised as to the timeliness of the petition.

ISSUE

The issue in this case is whether a beach house petitioners plan to build in south Walton County was already under construction, within the meaning of Section 161.053(7), Florida Statutes (1981) and Rule 16B-33.04(1), Florida Administrative Code, at the time the current coastal construction control line took effect there.

FINDINGS OF FACT

1. In October of 1982, the petitioners acquired a lot in south Walton County, on the north shore of the Gulf of Mexico. Even before the purchase, Mr. Wiese had been in touch with respondent's personnel, who apprised him of the imminence of the adoption of the new (now current) coastal construction control line, at that time already proposed for Walton County. The former coastal construction control line was considerably seaward of the current line, which became effective on December 29, 1982.

   
   

2. Petitioners, who have built some seven houses, drew plans for a house to be built on their Walton County lot one foot landward of the old coastal construction control line. They applied for and obtained the necessary county building permit. They contracted for grading on site, which took place on November 27, 1982. In the course of this work, the landward face of the sand dune was disturbed and petitioners realized that, if they were to build so close to the water, a wall or something like a wall would have to be erected and buttressed to keep the sand dune from migrating under or into their beach house. They determined that the plans were inadequate as drawn.

   
   

3. Mr. Wiese nevertheless arranged for one Al Christopher to bring two poles to the site and place one of them upright in the sand. When asked at hearing how long the two poles Mr. Christopher delivered to the site were, Mr. Wiese said he did not know. After Mr. Christopher began, petitioners did not ask him to desist either with bringing pilings to the site or with placing them in the ground. Mr. Christopher evidently did what he was asked to do, before he ever began working with the poles. Before the single pile was placed, batter boards were used to locate the perimeters planned for the building. Batter boards are temporary markers which are removed once the foundation is in place.

   
   

4. In constructing piling foundations for beach houses along the gulf coast, in this part of Florida if not elsewhere, the ordinary sequence is to bring all foundation piles to the site before bringing the equipment necessary to install all the piles at once. This makes for efficient use of expensive machinery, and is virtually always done. One of the Wieses' neighbors, fearing that the new coastal construction control line would take effect last fall arranged for a single pile to be driven, but his project was well underway by the time the new coastal construction control line did in fact take effect. As late as March of this year, Mr. Wiese checked with a Texas supplier to see if foundation piles would be available for the project.

   
   

5. The plans drawn before the grading of November 27, 1982, called for a foundation of 37 piles, each of which was to be 45 feet long. No horizontal members nor bracing of any kind was contemplated for the foundation. The foundation piles were to be put so close together that it would have been impractical to bring heavy equipment in to do the grading after they were in place. The idea in leveling the ground was to prepare it so a concrete slab could be poured to serve as a parking surface underneath the beach house. Under both the plans originally drawn and the plans under which petitioners now hope to proceed the parking surface itself is not expected to have a structural function, Mr. Wiese's testimony to the contrary notwithstanding.

   
   

6. Once petitioners were persuaded that the project needed "reengineering," they diligently sought out expert assistance and new foundation plans were eventually drawn to their satisfaction. Petitioners' efforts took place on a regular, if not a daily basis, but consisted in large part of finding the right people for the "reengineering" job. The plans which petitioners

   propose to use were stamped with the final engineer's seal on March 3, 1983, more than two months after the current coastal construction control line took effect.

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioners do not challenge the validity of the coastal construction control line that took effect on December 29, 1982; they contend that the new line should not apply to them. They are in effect seeking an exemption from a licensing requirement, and they are in the same procedural posture as applicants for licensure whom an agency proposes to turn down. Petitioners have the burden of proof to establish the facts on which they predicate their claim that a beach house was under construction on their Walton County line as of December 29, 1982.

   
   

8. Although petitioners have the same evidentiary burden applicants for licensure have, the parties agreed that the present proceedings involve only the question of grandfathering. Petitioners have never applied for and do not now seek a coastal construction permit. An adverse agency determination on the grandfathering issue would not preclude the possibility of such an application in the future.

   
   

   LAW APPLICABLE

   
   

9. The pertinent statute is Section 161.053(7), Florida Statutes (1981) , which provides, in pertinent part:

   
   

   The provisions of this section shall not apply to structures . . . existing or under construction prior to the establishment of the coastal construction control line as provided

   herein, provided such structures shall not he materially altered except as provided in subsection (4).

   
   

   DNR has by rule explicated the statutory phrase "under construction" in this language:

   
   

   "Under construction: is the continuous activity of excavating for or placing the foundation of any structure seaward of the established coastal construction

   control or setback line. Under construction does not include application for or obtaining a building permit, a site plan approval or zoning approval from the appropriate local government agency

   having jurisdiction over the activity, purchasing construction materials, placing such construction materials on

   the site, clearing the site in anticipation of construction, site surveying, or re- activating construction after substantially all construction activity has remained stopped for a period of six months or more."

   Petitioner contends that the definition of "under construction" in DNR's rules should be ignored in favor of an expansive interpretation of the dictionary definition of "construction" and also cite a thesaurus entry. But there has been no formal challenge, Pursuant to Section 120.56, Florida Statutes (1981), to the validity of Rule 16B-33.02(24), Florida Administrative Code. DNR is not at liberty to disregard its own rules, especially when their validity has not even been formally called into question. But see E. M. Watkins & Co. v. Board of Regents, 414 So.2d 583 (Fla.lst DCA 1982). The statutory language "under construction" must be read with the gloss of Rule 16B-33.02(24), Florida Administrative Code.

   
   

10. Even if Rule 16B-33.02(24), Florida Administrative Code, does apply, petitioners contend, their project qualifies for grandfather status both because of their "continuous activity of excavating for . . . the foundation," and because of their "continuous activity of . . . placing the foundation."

    
    

    CONTINUOUS PLACING

    
    

11. The evidence was clear that, both under the original plans and under the plans petitioners now expect to use, wooden piles would comprise the foundation of the beach house. Petitioners' efforts to show that they were involved in the "continuous activity" of placing foundation piles fell short of the mark, however. Both sets of plans called for piles 45 feet long. Only two poles were ever delivered to the site. The record does not establish how long either of the two poles was. Mr. Wiese was asked how long the poles were but was unable to say. The proof of "continuous activity of . . placing the foundation" amounts to no more than a showing that two poles of unspecified length were taken to the site, one of which was placed in the ground. This occurred, moreover, after the Wieses had already decided that the project needed to be "reengineered" before going further.

    
    

12. Petitioners proved that they were not the first to try to assure grandfather status by the placing of a single pile, but did not show that anybody else had succeeded with this maneuver. Showing a single other attempt of this kind is a far cry from proving that placing a single pile was in fact "continuous . . . placing [of] the foundation." Almost invariably continuous placing of a pile foundation entails assembling all piles on site before bringing in an augur or jetting equipment, then systematically placing all the piles. This sequence is more than happenstance; economic considerations dictate this approach to good faith placement of piling foundations.

    
    

    CONTINUOUS EXCAVATION

    
    

13. The grading petitioners undertook occurred in a logical construction sequence, and was shown to involve excavation. Whether grading on site in preparation for pouring a concrete slab amounts in itself to excavation need not be decided in the present case, since the testimony here was that the back or landward slope of the dune collapsed on being dug into. The grading was carried through to completion, although petitioners learned in the course of grading that "reengineering" was going to be necessary.

    
    

14. But excavating for parking spaces is not "excavating for . . . the foundation," simply by virtue of the parking spaces' location underneath the building. Nobody contends that leveling ground in preparation for pouring a concrete slab in front of a house, to be used as a parking surface, would amount to excavating for the house's foundation. Similarly, in the present case, excavation for the parking surface underneath the petitioners' beach house would

    fall within the language of Rules 16B-33.02(24) , Florida Administrative Code, only if the parking surface were part of the foundation of the beach house.

    Even though grading logically preceded pile placement, it was done for the parking spaces, and was not necessary, as petitioners' own expert testified, in order for the piles to be placed.

    
    

15. The evidence is clear that, at the time of the grading, nobody involved viewed the parking surface as part of the foundation. At some point after the redesign, however, Mr. Wiese came to believe that the parking surface would brace the piling foundation laterally. This was his testimony at hearing in the rebuttal case. The engineer who testified as an expert for petitioners said, however, that the parking surface had no structural purpose and this testimony was credited over that of Mr. Wiese, who was neither offered nor qualified as an expert. Petitioners did not meet their burden to show that the excavation was "for . . the foundation," since the parking surface was not shown to be part of the foundation.

    
    

    CONTINUOUS CONSULTING

    
    

16. After petitioners decided on "reengineering" they diligently sought and eventually obtained the technical assistance necessary to draw satisfactory plans, which were finally stamped some two months after the coastal construction control line took effect. Petitioners contend that these off-site efforts amount to "continuous activity" within the meaning of Rule 16B-33.02(24), Florida Administrative Code. Without contradiction, petitioners' expert testified that they were wise to stop work and resolve the plan deficiencies when they did, as a matter of construction procedure. But petitioners stopped work, so that adequate plans could be drawn (after necessary conceptual work had been accomplished), before undertaking any activity that would bring their project to the point of being "under construction," within the meaning of Rule 165-33.02(24), Florida Administrative Code. Discussing a project with design professionals and arranging for foundation plans to be drawn or redrawn normally precedes and is distinct from "excavating for or placing the foundation." Rule 165-33.02(24), Florida Administrative Code.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent deny petitioners' beach house project grandfathered status, and apply the coastal construction control line adopted for Walton County on December 29, 1982, in any agency action regarding the project.

DONE and ENTERED this 22nd day of August, 1983, Tallahassee, Florida.

ROBERT T. BENTON, II

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 22nd day of August 1983.

COPIES FURNISHED:

Joseph C. Jacobs, Esquire John C. Pelham, Esquire

and Melissa Fletcher Allaman, Esquire ERVIN, VARN, ODOM & KITCHEN

Post Office Box 1770 Tallahassee, Florida 32322-1170

Deborah A. Getzoff, Esquire Suite 1003

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Elton Gissendanner, Director Executive Suite

3900 Commonwealth Building

Tallahassee, Florida 32303

Docket for Case No: 83-001177

Orders for Case No: 83-001177