Giunipero, were issued a cease and desist order in July, 1984 by respondent, Department of Natural Resources, Division of Beaches and Shores (DNR), directing that they cease all construction activities on a residence in Franklin County, Florida, until they had obtained a permit from DNR. Such a permit was required on and after April 30, 1984, when new Rule 16B-26.14, Florida Administrative
Code, became effective. That rule established a coastal construction control line in Franklin County, and required a permit for any construction activities on property seaward of the control line. Because petitioners' proposed residence was on the seaward side of the new control line, DNR imposed the permitting requirements set forth in Rule 16B-33.07, Florida Administrative Code. Petitioners thereafter filed an application for a permit, but the same has been temporarily withdrawn pending the outcome of this proceeding.
By their petition filed in this cause on December 27, 1984, petitioners seek a "waiver" of Rule 16B-33.07, Florida Administrative Code. As grounds for granting their request, they contend they obtained a local building permit prior to the effective date of the establishment of the control line, and DNR did not notify them that the new line would become effective on April 30, 1984.
The matter was forwarded to the Division of Administrative Hearings by respondent on January 3, 1985 with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated January 17, 1985, a final hearing was scheduled for January 31, 1985 in Tallahassee, Florida.
At the final hearing, Larry Giunipero testified on his own behalf and presented the testimony of Edward F. Hubert, a professional engineer, and James T. Floyd, Franklin County planner. Respondent presented the testimony of Harold N. Bean, chief of the bureau of data coastal acquisition, Brett D. Moore, a DNR engineer, and Ralph R. Clark, chief of the bureau of coastal engineering. It also offered respondent's exhibits 1-5; all were received in evidence.
The transcript of hearing was filed on February 12, 1985. Proposed findings of fact and conclusions of law were filed by petitioners and respondent on February 15 and 28, 1985, respectively, and have been considered by the undersigned in the preparation of this order. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.
The issue herein is whether petitioners are entitled to a "waiver" of Rule 168-33.07, Florida Administrative Code, which establishes certain structural and design requirements for structures lying on the seaward side of the Franklin County coastal construction control line.
Petitioners, Larry C. and Jan D. Giunipero, reside at 2345 Tour Eiffel Drive, Tallahassee, Florida. On February 29, 1984, they obtained a building permit from Franklin County to construct a single-family dwelling on their lot in Alligator Point, Franklin County, Florida.
The Giuniperos engaged the services of a professional engineer to design their beach house. In so doing, the engineer designed the structure so as to comply with the Federal Emergency Management Association (FEMA) guidelines, which are minimum building requirements established by the Federal Insurance Administration to qualify for federal flood insurance. These guidelines have been adopted by the Franklin County Planning and Zoning Department, and insure that the structure can withstand winds of 110 miles per hour.
Even before the Guiniperos obtained their permit, respondent, Department of Natural Resources (DNR), was in the process of adopting new Rule 16B-26.14, Florida Administrative Code, which would establish a coastal construction line for Franklin County. Under the proposed rule, a coastal construction control line on Alligator Point would be established, and any excavation or construction activities thereafter on property seaward of the control line would require a permit from DNR, and have to be in conformity with all structural requirements set forth in Rule 168-33.07, Florida Administrative Code. Because the Guiniperos' lot lies on the seaward side of the control line, they were obviously affected by the rule.
The rule adoption process was quite lengthy and well publicized. It began in October, 1983 when a public workshop was held in Apalachicola and aerial displays of the control line were placed in the courthouse. Further public hearings were held in Tallahassee in February, March
and April, 1984. These hearings were the subject of numerous notices and advertisements in the Florida Administrative Weekly, Tallahassee Democrat, Apalachicola Times, Panama City News Herald, and Franklin County News. Clearly, the agency met all legal requirements in advertising the rule. However, for some reason, neither the Giuniperos or their professional engineer were aware of the pending rule change. Similarly, the Franklin County planner failed to advise them of the imminent rule change even though aerial displays of the proposed line were in the courthouse when the permit was issued.
Rule 168-26.14, Florida Administrative Code, was adopted by the Florida Cabinet on April 5, 1984, and eventually became effective on April 30, 1984. As of that date, any construction or excavation work seaward of the control line required DNR to issue a permit unless a dwelling was already "under construction" in which case the project was grandfathered in. The parties agree that petitioners do not fall in this category since the dwelling was not "under construction" within the meaning of DNR rules.
A few days before the rule became effective, a DNR engineer met with the Franklin County planner to review all building permits issued since September, 1983 for construction on the seaward side of the control line. The engineer did this so that he could inspect all building sites after the line became effective and determine which, if any, were "under construction" and therefore exempt from DNR permitting requirements. Because of the volume of permits issued to persons seeking to beat the April 30 deadline, and his unfamiliarity with alligator Point, the planner was unable to give the DNR engineer the precise location of petitioners' lot.
On or about May 1, 1984, the engineer visited the general locale of petitioners' lot. There was no activity on petitioners' lot, and no permit posted on the site. Accordingly, he assumed a recently completed beach house some 300 feet east of petitioners' lot was actually the Giuniperos' house. Since it was already completed, he merely filed a report the following day indicating that "if the location referenced above is accurate,
the structure appeared to be completed at that time."
On July 6, 1984, petitioners proceeded to install twenty-three 8" by 8" pilings on their lot at a cost of
$1,760. DNR discovered this construction activity a few days later and notified petitioners by telephone that such activity was illegal without a permit. A formal cease and desist order was sent on July 11, 1984, and no activity has taken place since that time. An application for a permit remains in abeyance pending the outcome of this proceeding.
The structural requirements of DNR are more stringent than those previously required by Franklin County and FEMA. Indeed, the FEMA guidelines are not a part of a coastal construction regulatory program but are merely minimum standards to meet federal flood insurance criteria. Therefore, while the Guiniperos' proposed dwelling is designed to withstand a windload of 110 miles per hour DNR requires a structure to meet a windload of 140 miles per hour. DNR also recommends that larger and more expensive pilings be used, and that the structure be designed to adequately resist a 100 year return interval storm event. Because the DNR requirements are more stringent, petitioners estimate they will incur total costs of $8,890 just to pull out the old pilings and install larger ones. 1/ Additional costs may be incurred to redesign and build the structure to withstand a wind velocity of 140 miles per hour.
By rule, DNR does not grant a waiver of its permit requirements except where a building is already constructed and an applicant desires to make "minor additions" to existing nonconforming structures. The Giuniperos do not qualify for such a waiver.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Initially, it is important to define the sole issue in this proceeding--whether a waiver of Rule 16B- 33.07, Florida Administrative Code, should be granted. Accordingly, the reasonableness of the structural requirements imposed by the DNR rule, or the merits of petitioners' application, are not in issue at this time.
The evidence discloses that Rule 168-26.14, Florida Administrative Code, became effective on April 30, 1984, and required petitioners to obtain a permit from DNR after that date as a prerequisite to any construction on their beach house. In adopting the rule, the agency followed all applicable statutory requirements pertaining to advertising and notice.
Petitioners contend they were entitled to some actual notice before the rule was adopted. But, absent a request by an individual that he receive advance notice of rulemaking, there is no requirement that the agency personally serve actual notice of a proposed rule on each and every potentially affected person. Here all statutory requirements were met, and petitioners' lack of actual notice is insufficient to justify a waiver of the rule. This is consonant with Subsection 120.68(12)(b), Florida Statutes (1984), which prohibits an agency from making an exercise of discretion which is "inconsistent with an agency rule." Accordingly, except where the rule itself authorizes a waiver, no deviation from its terms is permissible.
Rule 168-33.07(4)(c), Florida Administrative Code, provides the only instance where a waiver can be granted. Such a waiver may be granted where an owner seeks to make "minor additions to existing nonconforming structures . . . provided the addition does not advance the seaward limits of construction at the site."
Unfortunately, petitioners do not fall within these circumstances.
It is concluded that petitioners' request for a waiver from the permit requirements embodied in Rule 16B-
