Kiesling.
For Petitioner: David P. Rankin, Esquire
Andrew S. Grayson, Esquire 3900 Commonwealth Building
John C. Woodley and Sylvia S. Woodley:
W. Kevin Russell, Esquire and Phillip J. Jones, Esquire
The issue for determination is whether the Woodleys are entitled to a permit to construct a single family residence seaward of the Coastal Construction Control Line in Charlotte County, Florida.
At hearing Petitioner presented the testimony of Thomas L. Jones, Albert Case Hine III (by deposition), and Sylvia S. Woodley. Petitioner had seven exhibits admitted into evidence and proffered two exhibits. Respondents presented the testimony of Sylvia S. Woodley and Erick J. Olsen. Respondents had five exhibits admitted into evidence.
At the start of the formal hearing, Petitioner's Motion to Amend the Petition was granted with the agreement of the parties and the formal hearing proceeded under the Amended Request for Formal Hearing.
The transcript of the proceedings was filed on January 2, 1986, and the parties filed posthearing Proposed Orders on January 14, 1986. A ruling has been made on each proposed finding of fact in the Appendix attached to and made a part of this Recommended Order.
On September 25, 1984, Joseph V. Bell, Jr., on behalf of John C. and Sylvia S. Woodley, filed an application for a permit pursuant to Chapter 161, Florida Statutes, to construct a single-family dwelling to extend a maximum of 420 feet, a balcony to extend a maximum of 73 feet and installation of a septic tank and drainfield to extend a maximum of 35 feet, respectively, seaward of the coastal construction control line (CCCL) in Charlotte County, Florida, at approximately 536 feet south of the Department of Natural Resources' reference monument R-47.
The application filed was deemed complete pursuant to rule by DNR staff on October 29, 1984.
The application was withdrawn from the January 8, 1985, Governor and Cabinet meeting at the request of the applicant. This application was deferred from the March 19, 1985, Governor
and Cabinet meeting with a motion for the Executive Director to submit a recommendation relative to the State acquisition of the property.
The application was again considered at the May 7, 1985, Governor and Cabinet meeting and the Executive Director recommended acquisition of the Woodley property and surrounding area adjacent to the Don Pedro Save our Coast Project. With the concurrence of the Woodleys, the Governor and Cabinet deferred the request to February 1, 1986, to allow time for the land acquisition.
On June 5, 1985, the Land Acquisition Selection Committee met to consider adding the proposed addition to the Don Pedro Island Complex Land Acquisition Project under the Save Our Coast Component of the State Recreation and Parks Land Acquisition Program. The Committee voted 5-1 against the land acquisition.
The Executive Director again agendaed the application for consideration before the Governor and Cabinet, sitting as the agency head of the Department of Natural Resources, on July 2, 1985. The staff recommendation was for denial.
The following additional facts were found based upon testimony and evidence presented at the formal hearing:
The application was approved by the Governor and Cabinet
on July 2, 1985, with the specific conditions that the structure be constructed in accordance with DNR's structural specifications (pursuant to Section 16B-33.07, Florida Administrative Code) and that the Woodleys agree not to armor their property in the future. The Woodleys have stipulated that they will comply with these conditions.
DNR Final Order No. 3229 was issued by DNR on July 29, 1985, and incorporated the aforementioned conditions.
The Woodleys have owned the subject property since 1956.
The Petitioner, Thomas L. Jones, purchased the property adjacent to and landward of the Woodleys' property on June 28, 1985.
Jones' witness, Dr. Albert Case Hine, III, whose testimony was offered by deposition, is a geological oceanographer studying modern shallow marine depositional environments and coastal geological systems. However, Hine was neither offered as nor accepted as an expert witness.
According to Hine, the Woodleys' property could be threatened by future inlet activity. However, this opinion was based on a undated report which does not identify the author. Additionally, Hine has never visited the island or shoreline in question, has never studied Charlotte County, and based his opinion essentially on information provided to him by Jones. Therefore little weight is given to Hine's testimony.
Erik Olsen was admitted as an expert in coastal engineering, coastal processes and the application of Chapter 161, Florida Statutes, and Chapter 16B-33, Florida Administrative Code. Olsen has direct experience with Charlotte County and particularly the Knight Island Complex which includes everything from Stump Pass about five miles north, to Gasparilla Pass about three miles south of the Woodleys' property. He has reviewed historical data for that area spanning 120 years.
Olsen has been on the Woodleys' property.
Woodleys' property is not threatened by inlet activity which would result in the reopening of a pass adjacent to and abutting on the property.
The single family residence proposed by the Woodleys will be located as far landward on their property as possible. The structure will have no adverse impact on adjacent properties and will pose no risk or danger to the general public or to the ecological system in the area of their property. The siting of the proposed structure complies with the provisions of Rule 16B- 33.07(1), Florida Administrative Code. The only risk of construction of the structure is being borne and will be borne by the Woodleys.
The attendant risk is that of erosion. The shoreline adjacent to the Woodleys' property has eroded at the average rate of 4.9 feet per year over the past ten years. The rate is an average and takes into account differing rates of erosion and accretion during different time periods. For example, the erosion rate for May, 1974 to October, 1981 was 3 feet per year. As the result of a major storm, the erosion rate from July, 1982 to December, 1982 was 54 feet per year. The accretion rate for December, 1982 to September, 1983 was 20 feet per year and for
September, 1983 to April, 1984 was up to 5 feet per year. The future erosion rate will be affected by various factors such as storms and a potential Corps of Engineers project.
In the past at lea-et one other structure existed on a lot seaward of the Woodleys' property, but it has been either destroyed by storm action and erosion or removed with only the pilings remaining. Approximately 60 feet of the lot still remained between the Woodleys' lot and the shoreline in 1984.
On or about November 6, 1985, approximately 40 feet of the lot remained between the Woodleys' lot and the mean high water line.
On a survey performed by Giffels-Webster Engineering Inc., on November 6, 1985, the approximate thirty year erosion projection is approximately 20.5 feet seaward of the seaward limit of the Woodleys' property.
CONCLUSIONS OF LAW_
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding.
Section 120.57(1), Florida Statutes.
The DNR administers the regulation of construction and excavation activities seaward of established Coastal Construction Control Lines (CCCL) pursuant to Chapters 161, Florida Statutes, and Chapter 16B-33, Florida Administrative Code. Permits for construction seaward of the CCCL are issued by DNR upon application of the property owner and upon consideration of adequate engineering data concerning shoreline stability, storm tides related to shoreline topography, design features, potential impacts, the location of structures upon the beach-dune system and potential cumulative effect of the location of structures upon the beach-dune system. Rule 16B- 33.06, Florida Administrative Code.
Rule 16B-33 05, Florida Administrative Code, purports to allow only activities seaward of the CCCL which are necessary and justified. In the present case the construction of the proposed single family residence is necessary and justified by the Woodleys' right and desire to enjoy the property which they purchased in 1956.
The Woodleys submitted sufficient facts and data to meet the requirements of Rule 16B-33.06. The proposed structure is located as far landward on their property as possible in
order to minimize the potential impact on the beach-dune system. It is concluded that the proposed structure is justified under Rule 16B-33.06.
Rule 16B-33 07, Florida Administrative Code, sets forth the structural and-other requirements necessary for permit approval. As that rule relates to location of the proposed structure, it has been satisfied. The structure is also located so as to minimize any expected adverse impact on the beach-dune system. There are no expected adverse impacts on adjacent properties. As a condition of the permit, the structure will be designed and constructed to resist the forces associated with a one-hundred year storm event. The Woodleys have agreed to this condition and have had the necessary design modifications made in the plans for the structure. The single family residence proposed by the Woodleys will satisfy all of the requirements of Rule 16B-33.07.
In summary, the Woodleys have met the requirements of Chapter 161, Florida Statutes, and Chapter 16B-33, Florida Administrative Code. They have established by the competent, substantial evidence that they are entitled to the permit.
