STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD S. COLEY AND JUANITA G. ) COLEY, )

)

Petitioners, )

)

vs. ) CASE NO. 84-2053RX

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in the above-captioned matter, after due notice, at Port St. Joe, Florida, on August 3, 1984, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

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

Post Office Box 98

Port St. Joe, Florida 32301

For Respondent: Andrew Grayson and

John Williams, Esquires Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303 ISSUE PRESENTED

Validity of Respondent's Rules 16B-33.05(1), 16B-33.05(2), 16B-33.05(6), 16B-33.06(2), and 16B-33.07(2), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.

In January of 1984, Respondent Department of Natural Resources provisionally denied Petitioners' application for a permit pursuant to Chapter 161, Florida Statutes, to construct a dwelling on their property in Walton County seaward of the existing coastal construction control line. Petitioners requested a hearing pursuant to Section 120.57(1), alleging that the denial of their application was unlawful on constitutional grounds and that it exceeded Respondent's discretionary powers under Chapter 161. The request for hearing was referred by Respondent to the Division of Administrative Hearings, Case No. 84-0508. Thereafter, Respondent's motion to strike those aspects of the petition alleging the unconstitutionality of the proposed denial was denied on the basis that Petitioners properly may preserve such matters for any appellate review.

Thereafter, Petitioners sought to amend their petition to allege the invalidity of certain of Respondent's rules and, although such petition was granted, Petitioners were informed that any administrative determination of the

invalidity of rules must be made the subject of a separate petition filed with the Director of the Division of Administrative Hearings. On June 11, 1984, Petitioners filed a petition with the Division challenging the validity of certain of Respondent's rules which were cited by Respondent as the basis for the proposed denial of Petitioners application for a permit. The petition alleged that said rules were not appropriate to the ends specified in Section 161.053, Florida Statutes, that the effect of the rules was to establish a class of property owners who could be excluded from receiving permits to construct dwellings seaward of the coastal construction control line merely because their lots or parcels of land are larger than their neighbors or other adjacent owners, and that such rules are arbitrary and capricious as they relate to the petitioners because other property owners in Walton County had been permitted by Respondent to construct dwellings similar to that proposed by the Petitioners beyond the coastal construction control line. DOAH Case No. 84-0508 and the case involving the rule challenge, DOAH Case No. 84-2053RX, were consolidated for purposes of hearing.

At the hearing, Petitioners presented the testimony of Brett Moore, a coastal engineer employed by the DNR Division of Beaches and Shores, Dennis Evans, an architect, and Petitioner Edward S. Coley. Petitioner submitted ten exhibits in evidence. Respondent presented the testimony of Brett Moore, Deborah Flack, Director of the Division of Beaches and Shores, and Ralph Clark, Chief of the Bureau of Coastal Engineering and Regulation. Respondent submitted

21 exhibits in evidence.

At the conclusion of Petitioners' case in chief, Respondent moved to dismiss the rule challenge petition on the grounds that no evidence had been presented to establish the invalidity of the challenged rules. Ruling on the motion was reserved pending the rendition of the Final Order in that proceeding.

Posthearing submissions submitted by the parties in the form of proposed final orders have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.

FINDINGS OF FACT

1. In 1981, Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley Petitioners' Exhibit 1, Respondent's Exhibit 1)

   
   

2. At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach.

   Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December, 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the

   portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20)

   
   

3. On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984 that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows:

   
   

   The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line.

   The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area . . . .

   * * *

   Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line.

   By letter of September 29, 1983, Respondent had advised petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line.

   Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16)

   
   

4. The height of the dune line on petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under deed covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to some extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8)

   
   

5. Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21)

   
   

6. Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10)

   
   

7. Although conflicting evidence was received as to whether or not the existing structures east of Petitioners lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioner's Exhibit 1)

8. Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2)

   
   

9. The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4.)

   
   

   CONCLUSIONS OF LAW

   
   

10. Petitioners seek to invalidate the rules of Respondent that were cited by the latter as the basis for the proposed denial of the permit application.

    No issue has been raised as to the standing of Petitioners to challenge the rules in question and, since they all concern matters relating to the type of permit requested by the Petitioners, it is determined that Petitioners are substantially affected to the extent that any of the rules were applied as a basis for the preliminary action taken by Respondent.

    
    

11. The rules in question purport to implement Section 161.053, Florida Statutes, dealing with the establishment of coastal construction control lines by the Respondent on a county basis. The intent of the legislature as expressed in that statutory provision reads in part as follows:

    
    

    Section 161.053 Coastal Construction and Excavation: Regulation on county basis.--

    1. The Legislature finds and declares that the beaches in this state and coastal barrier dunes adjacent to such beaches, by their nature, are subject to frequent and severe fluctuations and represent one of the most valuable natural resources of Florida 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 furtherance of these findings, it is the intent of the Legislature to provide that the department establish coastal construction control lines on a county basis along the sand beaches of the state running on the Atlantic Ocean or the Gulf of Mexico. Such line 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, storm waves, or other predictable weather conditions . . . Special siting and design considerations shall be necessary seaward of established coastal construction control lines to ensure the protection of the beach-dune system, proposed or existing structures, and adjacent properties.

    2. . . . Upon the establishment, approval, and recordation of such control line or lines,

       no person, firm, corporation, or governmental agency shall construct any structure whatsoever seaward thereof; or damage or cause to be damaged such sand dune or the vegetation growing thereon seaward thereof except as hereinafter provided.

       * * *

       (4) . . . a permit to . . . construct on property seaward of the established coastal construction control lines may be granted by the department as follows:

       1. The department may authorize . . . erection of a structure at any coastal location as described in subsection (1) upon receipt of an application from a property

          . . . owner and upon consideration of facts and circumstances, including adequate engineering data concerning shoreline stability and storm tides related to shoreline topography, design features of the proposed structures or activities, and potential impacts of the location of such structures or activities including potential cumulative effects of the proposed structures or activities upon such beach-dune system, which, in the opinion of the department, clearly justifies such a permit.

       2. If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing, and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department if such structure is also approved by the department.

       
       

12. Rule 16B-33.05(1), Florida Administrative Code, provides that establishment of a coastal construction control line does not preclude all development of coastal properties seaward of such line, but such activities shall be limited and the necessity of such development or construction shall be stated and clearly justified by the applicant. Subparagraph (2) of the rule sets forth the requirement that special structural and other design considerations are required seaward of the coastal construction control line to protect the beach dune system, structures, and adjacent properties. Paragraph

    (6) of the rule provides in pertinent part as follows:

    
    

    (6) . . . the Department encourages all applicants for permits as provided herein to design proposed structures and excavation in a manner to effectively utilize all property landward of the 50-foot setback or coastal construction control line so that such

    proposed structures or excavations shall extend as little a distance seaward of such established lines as possible.

    
    

13. Rule 16B-33.06(2) substantially restates the language of subsection 161.053(4)(b) concerning the discretionary authority of the Department to permit a structure if existing structures in the immediate or adjacent area establish a reasonably continuous and uniform construction line and have not been unduly affected by erosion. However, the rule also adds the following language:

    
    

    However, if such existing structures have been substantially affected by erosion, the Governor and Cabinet or the Executive Director, as appropriate, shall require all proposed construction or excavation to be designed and located as far landward from the 50-foot setback or coastal construction control line as possible on the applicant's property. Furthermore, if the property of the applicant lies on a relatively undeveloped area of beach, the Governor and Cabinet or the Executive Director, as appropriate, shall require all proposed construction or excavation to be located as far landward of the . . . coastal construction control line as possible.

    
    

14. Rule 16B-33.07(2) simply provides that all structures shall be designed so as to minimize any expected adverse impact on the beach system or adjacent property.

    
    

15. The aforesaid rules were challenged by Petitioners in their petition generally on the grounds that the rules are not appropriate to the ends specified in Section 161.053, that the effect of said rules is to establish a class of property owners who may be excluded from receiving permits to construct dwellings seaward of the coastal construction control line merely because their lots or parcels of land are larger than their neighbors or other adjacent owners, and that such rules are arbitrary and capricious as they relate to the Petitioners for the reason that other property owners in Walton County along the Gulf of Mexico have been permitted by Respondent to construct dwellings beyond the control line, but Petitioners have been denied such right. The Petitioners therefore seek relief to have the said rules declared invalid "as they may apply to the Petitioners."

    
    

16. Petitioners have failed to present any evidence to support their claims of invalidity as to Rules 16B-33.05(1) and (2) and 16B-33.07(2). Those rules either track the language of Section 161.053 or otherwise constitute logical and reasonable requirements in implementation of that statutory provision concerning the need for special structural and design considerations to minimize any adverse impact on the beach system. It is also noted that the challenge to Rules 16B-33.05(2) and 33.07(2) was abandoned in Petitioners' post- hearing Proposed Order.

    
    

17. Rule 16B-33.05(6) "encourages" permit applicants to design proposed structures in a manner to effectively utilize all property landward of the coastal construction control line so that the proposed structure will extend as little a distance seaward of such line as possible. Although this rule does not

    specifically implement any explicit portion of statutory authority, it is in the nature of an exhortation rather than the imposition of a requirement, and is certainly in keeping with the legislative purpose in establishing the coastal construction control line.

    
    

18. That portion of Rule 16B-33.06(2) which requires that construction on the property of an applicant be located as far landward of the coastal construction control line as possible, is not deemed to be in issue in this proceeding. Although such a requirement appears to be of questionable legality, the evidence does not show that it was applied to Petitioners' application by Respondent. Accordingly, Petitioners lack standing to challenge it.

    
    

19. The validity of regulations normally will be sustained so long as they are reasonably related to the purpose of the enabling legislation and are not arbitrary or capricious. Florida Beverage Corporation v. Wynn, 306 So.2d 200 (Fla. 1st DCA 1975), Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), Jax's Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, et al., 388 So.2d 1306 (Fla. 1st DCA 1980). In this case, Petitioners have not succeeded in establishing the invalidity of any of the challenged applicable rules. Rather, their complaint, as stated in the petition's claim for relief, appears to be the manner in which certain of the ruins were applied by Respondent in their particular set of circumstances. Such claims properly may be addressed in a Section 120.57(1) proceeding on the merits of the application for permit.

In view of the foregoing, it is determined and ordered that Petitioners have failed to establish the invalidity of the rules challenged in their petition, and that said petition is therefore DISMISSED.

DONE and ORDERED this 21st day of September, 1984, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 21st day of September, 1984.

COPIES FURNISHED:

Cecil G. Costin, Jr., Esquire Post Office Box 98

Port St. Joe, Florida 32301

Andrew Grayson and

John Williams, Esquires Department of Natural Resources Commonwealth Boulevard-3900 Tallahassee, Florida 32303

Elton J. Gissendanner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 84-002053RX

Orders for Case No: 84-002053RX