STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEY BISCAYNE COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4668

) STATE OF FLORIDA, DEPARTMENT ) OF NATURAL RESOURCES and )

BISCAYNE BEACH HOTEL )

ASSOCIATION, LTD./KEY ) BISCAYNE LIMITED PARTNERSHIP, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on May 1-4, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Eugene E. Stearns, Esquire

Thomasina H. Williams, Esquire Stearns, Weaver, Miller, Weissler,

Alhadeff & Sitterson, P.A.

220C Museum Tower

150 West Flagler Street Miami, Florida 33130

For Respondent, William R. Williams, Esguire Key Biscayne Robert D. Fingar, Esquire

Limited Huey, Guilday, Kuersteiner Tucker, P.A. Partnership: First Florida Bank Building

215 South Monroe Street, Suite 500 Tallahassee, Florida 32302

H. Ray Allen, Esquire 618 Whitehead Street

Key West, Florida 33040

Deborah A. Getzoff, Esquire Fowler, White, Gillen, Boggs

Villareal & Banker, P.A.

101 North Monroe Street, Suite 910 Tallahassee, Florida 32301

For Respondent Dana M. Wiehle, Esquire Department of Assistant General Counsel Natural Department of Natural Resources

Resources: 3900 Commonwealth Boulevard, Room 1003

Tallahassee, Florida 32399 STATEMENT OF THE ISSUES

At issue in this proceeding is whether the Department of Natural Resources (DNR) should approve the application of Key Biscayne Limited Partnership (the Hotel) to construct seaward of the coastal construction control line (CCCL), a nine-story, 124-room addition and appurtenant structures to the existing Sonesta Beach Hotel on Key Biscayne, Dade County, Florida.

PRELIMINARY STATEMENT

By letter of August 31, 1989, petitioner, Key Biscayne Council (Council), filed a timely petition for a formal hearing pursuant to Section 120.57(1), Florida Statutes, challenging DNR's intent to issue a CCCL permit (DA-93) to the Hotel for construction of the aforementioned project. The gravamen of the council's concerns were: (1) whether the location of the proposed construction would be seaward of the 30-year seasonal high-water line and, therefore, prohibited by Section 161.053(6)(b), Florida Statutes; (2) whether the construction of similar projects along the coast would have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline; and, (3) whether the proposed construction would adversely impact the beach-dune system and adjacent properties. At hearing, the Council was granted leave to amend its petition to raise as a disputed issue of material fact whether, in light of Dade County Ordinance No. 89-23, the proposed construction complied with the setback requirements or zoning or building codes of Dade County. 1/

At hearing, the Hotel called as witnesses: Mark H. Ellert; Joseph J. Steinocher, accepted as an expert in surveying and mapping; Rebecca Jo Savage, accepted as an expert in coastal processes, with an emphasis on shoreline change analysis and historic change rate analysis; Robert C. Dean, accepted as an expert in coastal and oceanographic engineering and coastal processes; and Erik

1. Olsen, accepted as an expert in coastal engineering and coastal processes. The Hotel offered its exhibits 1-4, 5A-D, 6, 7, 8, 18, 19, 21C, 25, 27, 29, 30A- C, 34A-C, 42 and 52, which were received into evidence. 2/

   
   

   DNR called as witnesses: Mark E. Leadon, accepted as an expert in coastal engineering and coastal processes, and Ralph Clark, accepted as an expert in coastal engineering and coastal processes. DNR offered its exhibits 1-6, which were received into evidence.

   
   

   The Council called as witnesses: Harold R. Wanless, accepted as an expert in coastal sedimentation, geologic and historic changes in coastal sedimentation on barrier islands, and coastal processes; Robert B. Taylor, accepted as an expert in coastal engineering and coastal processes; Betty Sime; and Donna Romito. The Council offered petitioner's exhibits 1-4, 6, 7, 9, 10, 12, 13, 16,

   17, 19, 21-26, and 32, which were received into evidence. 3/

   
   

   The last volume of the transcript of hearing was filed May 30, 1989, and the parties were granted leave until dune 29, 1989, to file proposed findings of fact. Under the circumstances, the parties waived the requirement that a recommended order be rendered within 30 days after the transcript is filed.

   Rule 22I-6.031(2), Florida Administrative Code. The parties' proposed findings have been addressed in the appendix to this recommended order.

   
   

   FINDINGS OF FACT

   
   

   Background

   
   

   1. On January 14, 1988, respondent, Key Biscayne Limited partnership, formerly known as Biscayne Beach Hotel Association, Ltd. (the "Hotel") , filed an application with Respondent, Department of Natural Resources (DNR), for a coastal construction control line (CCCL) permit authorizing it to conduct construction activities seaward of the Dade County CCCL on Key Biscayne, Florida. As proposed, the Hotel, which currently owns the Sonesta Beach Hotel on Key Biscayne, sought authorization to construct a nine-story 124-unit habitable addition and a one-story non habitable addition, with understructure parking, to its existing facility. Incident to such construction, the Hotel also sought authorization to construct a deck and jacuzz-type hot tub south of the addition, and authorization to excavate approximately 1,400 cubic yards of fill for the pile foundation and caps, and to deposit such fill seaward of the CCCL. Excavation for the foundation would extend a maximum of 177 feet seaward of the CCCL and placement of the excavated material would extend a maximum of

      300 feet seaward of the CCCL.

      
      

   2. On August 11, 1988, DNR issued a notice of intent to approve the Hotel's application and to is sue a CCCL permit subject to the following special conditions:

      
      

      1. The issuance of the permit placard shall be withheld pending staff receipt and approval of:

         1. Two sets of specifications and final certified construction plans accurately dimensioned with elevation referenced to NGVD. Details of the foundation of the 9-story and single- story addition, pile/pile cap/column connections, column/floor slab and roof slab connections, cantilevered balconies, garage floor slab, breakaway walls, storm drainage and domestic waste disposal, and fences shall be included in the plans.

         2. Two sets of certified dimensioned site plans showing the location of the control line, existing sea grape trees, the placement of excavated material seaward of the control line, and species of salt-resistant vegetation. The site plans shall be subject to review and acceptance by the Bureau staff.

         3. Evidence that written notice has been recorded in the deed covenants and restrictions for the subject property that:

            1. The construction of any future rigid coastal protection

               structures on the property shall be prohibited.

            2. The deed covenants and restrictions shall be recorded in the public records of Dade County.

            3. Such deed covenants and restrictions shall be enforceable and shall not be altered unless approved by the Department of Natural Resources.

               
               

      2. The use of gravel or other similar materials or structures with the potential for becoming aerodynamically propelled missiles shall not be included in the construction of the roof.

         
         

      3. Salt-resistant vegetation such as sea oats, sea grape, panic grass, salt jointgrass, and/or other approved salt- resistant species shall be planted on

         the fill area. In addition, the permittee shall irrigate and apply fertilizer as appropriate for the particular species planted until the vegetation is established. A 75 percent survival rate of the vegetations shall be ensured and replanting shall be conducted until a 75 percent overall survival rate is attained and until any sizeable barren portions of the area are covered.

         
         

      4. The excavated fill material to be placed on the beach shall consist of material compatible in grain size and coloration as the native beach sand and shall come from a source located landward of the coastal construction control line.

         
         

      5. The main structure of the addition shall not extend further seaward than the projected line of the existing retaining wall located seaward of the existing swimming pool.

         
         

   3. Petitioner, Key Biscayne Council (the "Council"), filed a timely protest of DNR's action. Essentially, the Council contended that the location of the proposed construction would be seaward of the 30-year seasonal high-water line and, therefore, prohibited by Section 161.053(6)(b), Florida Statues; that the proposed construction would adversely impact the beach-dune system and adjacent properties; that construction of similar projects along the coast would have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline; and that the proposed construction failed to comply with the setback requirements or zoning or building codes of Dade County.

      The Key Biscayne Council

      
      

   4. In Its petition for formal hearing, the Council alleged that it was a not-for-profit Florida corporation which had, as one of its purposes, the preservation of the environment of Key Biscayne, including its beaches. The proof at hearing failed, however, to demonstrate that the Council enjoyed corporate status but, rather, demonstrated that it was an association formed in November 1987 to give the residents of Key Biscayne a more effective voice on matters of local interest, including the preservation of the environment of Key Biscayne.

      
      

   5. The Council is governed by nine individuals who are residents of Key Biscayne. These individuals are elected to their positions by the resident members of the association, who are also registered voters in Dade County. 4/ The Council meets at least once each month, and its meetings are open to the public. The agenda for each meeting is published in the local Key Biscayne newspaper, The Islander, the week before each meeting.

      
      

   6. Of particular interest to the Council is the preservation and protection of the beaches of Key Biscayne which form an important part of that community's and the Council members' lifestyle. To date, the Council has been a motivating force behind the enactment of Dade County Ordinance No. 89-23 discussed infra, which established the CCCL as the mandatory setback line for new construction on Key Biscayne, as well as efforts to fund a cleanup of the beaches, to establish a vegetation dune system, and to protect the sea turtle population. Here, by unanimous vote of the Council, it elected to contest the propriety of DNR's proposal to approve the Hotel's application to construct the proposed additions seaward of the CCCL.

      
      

      Key Biscayne and the surrounding topography

      
      

   7. Key Biscayne is the southernmost barrier island in what is now a chain of barrier islands extending southward from Miami Beach. Historically, Miami Beach was connected to some extent with Virginia Key, which lies to the north across Bear's Cut from Key Biscayne. In 1835, however, a hurricane struck the area, breached whatever connection existed between Miami Beach and Virginia Key, and formed what is now known as Norris Cut. The topography of the area was further altered in 1905 when construction of Government Cut, the navigational channel for the Port of Miami, was begun. Construction of that cut severed the southern tip from Miami Beach, and formed what is now known as Fisher Island.

      
      

   8. By 1927, a jetty had been constructed on the north side of Government Cut that created an effective barrier to any along shore sediment transport to the south. Over time the channel in Government Cut was deepened and jetties on its north and south sides extended. Today, the channel is 42 feet deep and extends two miles into the ocean. The north jetty extends 3,000 feet into the ocean, and the south jetty extends 2,750 feet into the ocean.

      
      

   9. Key Biscayne, which lies to the south of Government Cut and the other islands, is a sand island, roughly "drum-stick" in shape, formed on a limestone base, with elevations ranging from 5 1/2 to 6 1/2 feet. The northern and southern portions of its eastern shore are dominated by Crandon Park and Cape Florida State park, respectively, with development concentrated in the central portion of the island. It is along this central part of the island that the Sonesta Beach Hotel exists, and where the proposed construction is to occur. Immediately north of the existing hotel lies the Silver Sands Hotel and Sand

      Dollar Restaurant. To the south of the hotel lies the Sheraton Beach Hotel and Beach Club and, further south, the Key Biscayne Hotel and Villas. 5/

      
      

   10. Although Key Biscayne is generally subject to mild weather conditions and a low energy environment, it has been subjected to erosion along its eastern shore, with the more severe erosion occurring along the central portion of its shoreline. Seaward of the northern and southern portions of its eastern shore, sand shoals exist which tend to dampen the force of wave energy that would otherwise be exerted against that stretch of coast line. The center of the island is not, however, accorded similar protection and the consequent concentration of wave energy causes sand to be transported from the center of the island to its outer ends. As a result, the central portion of the island, where the subject development is proposed, has historically eroded at a faster rate than the north or south ends of the island.

       
       

   11. In September 1984, as a consequence of the severe erosion suffered to the eastern shore of Key Biscayne, Dade County was authorized to place over 411,000 cubic yards of sand along approximately 10,000 feet of shoreline on Key Biscayne, and to construct a terminal structure at the south end of the island. The beach was restored by hydraulically pumping sand onto the beach from an offshore dredge and then redistributing the sand with a bulldozer. The resulting beach is characterized as "plan form," and is expected to assume a natural profile over time by responding to the natural forces of wind and waves.

       
       

   12. The fill pipes which were used to pump sand onto the beach were removed from the area of the Sonesta Beach Hotel on July 3, 1987, and the reprofiling or redistribution of sand in that area was completed around July 20, 1987. On September 26, 1987, the renourishment project was certified complete.

       
       

       The 30-year erosion projection

       
       

   13. Section 161.053(6)(b) Florida Statutes, provides that DNR may not issue a permit for construction seaward of the CCCL, except for certain specific structures not pertinent to this case, if the structure is "proposed for a location which, based on the department's projections of erosion in the area, will be seaward of the seasonal high-water line within 30 years after the date of application for such permit."

       
       

   14. The "seasonal high-water line" is a creature of statute, and is defined by Section 161.053(6)(a), Florida Statues, as "the line formed by the intersection of the rising shore and the elevation of 150 percent of the local mean tidal range above local mean high-water." Here, the seasonal high-water line, which is established as an elevation, calculates to approximately 5.4 feet NGVD, and according to the survey dated August 1, 1987, which was submitted with the Hotel's application, currently derives a line that is approximately 375 feet seaward of the proposed construction. To establish the 30-year erosion projection, DNR proposes to horizontally shift the profile which was depicted on such survey in a landward direction a distance equal to the expected erosion rate over a 30-year period.

       
       

   15. Ordinarily, DNR would calculate a 30-year erosion projection based on historic erosion rates, referred to as "horizontal change rates" in Rule 16B- 33.024, Florida Administrative Code, by reviewing two or more historical surveys taken over a period of time, and measuring the amount of shoreline recession that had occurred during that period. From that figure, an erosion rate would be derived by dividing the number of years which elapsed over the period of record chosen into the amount of shoreline recession that occurred during that

       period. The result would be the historic erosion rate which, when multiplied by 30, would establish the location of the 30-year seasonal high-water line.

       However, where, as here, the beach as been renourished, consideration of the effect and performance of such project must also be considered in making the 30- year erosion projection. Rule 16B-33.024(3)(e), Florida Administrative Code.

       Accordingly, to determine the expected location of the seasonal high-water line in 30 years in this case, it is necessary to establish a historical shoreline change rate and to evaluate the effect and performance of the beach renourishment project.

       
       

   16. To establish an appropriate historical erosion rate for the subject site, consideration must be given to both the tidal datum relied upon to obtain the rates, and the time period selected as the period of record for analysis of historic shoreline change rates. With regard to tidal datums, the Department's rule provides that horizontal shoreline change rate values may be obtained from one of several available tidal datums, including mean high-water, mean sea level, and mean low-water. Rule 16B-33.024(3)(a), Florida Administrative Code. However, the preferred and more reliable tidal datum to use in assessing historic erosion rates is the line of mean high-water.

       
       

   17. The time period used in calculating the historic shoreline change rate is required by DNR's rule to extend from the date of the field work for the applicant's survey, which was submitted as part of the application, to the earliest date for which reliable information is available. Rule 16R- 33.024(3)(b) Florida Administrative Code. The historic shoreline change rate analysis should generally include data from points 3,000 feet on either side of the proposed construction, with the change rate for each point averaged for the time period chosen. Rule 16R-33.024(3)(g), Florida Administrative Code. In the event that coastal or shoreline protection structures exist which have influenced the shoreline data for any of the reference points, such influence must be addressed, and if such influence renders the data unreliable the rate data obtained from that point during the period of influence must be rejected. 6/ Rule 16B-33.024(3)(c), Florida Administrative Code.

       
       

   18. Historic shoreline change rates for the subject project are properly determined by reference to DNR reference monuments R-101 to R-106, located on Key Biscayne. Monument R-104 is the closest monument to the project site, lying approximately 180 to 200 feet south of the site, with the project lying between monuments R-103 and R-104.

       
       

   19. To facilitate an accurate determination of historic shoreline change rates, DNR has created the Beaches and Shores Growth Management Data Base (DNR Data Base), which consists of data from primary source maps from various governmental agencies, including the United States Coastal and Geodetic Survey, National Ocean Survey, and United States Geologic Survey. These maps have been digitized relative to the DNR monuments, which are located along- the coast at- approximately 1,000-foot intervals, and the resulting data is used to assess shoreline changes over time. Inherent in these shoreline changes are the effects of natural forces on the shoreline, such as wind, wave height, and temperature.

       
       

   20. Pertinent to this case, the surveys available in the DNR Data Base prior to 1989 were those of 1851, 1919, 1927, 1935, 1945, and 1962. In or about February 1989, DNR contracted with Florida State University to redigitize maps of Key Biscayne. As a consequence, the accuracy of existing data was enhanced and a new survey, the 1913 United States Coastal and Geodetic Survey Map, was added to the DNR Data Base. The addition of the 1913 survey to the DNR Data

       Base is significant to this case, since the proof demonstrates that the data derived from the 1919 survey is unreliable and should be disregarded.

       Accordingly, the surveys that may be reasonably relied on in this case are those of 1851, 1913, 1927, 1935, 1945, and 1962.

       
       

   21. In selecting the appropriate period to determine the historic change rate in this case, several factors should be considered. First, in 1926 a hurricane, which came very close to Key Biscayne, resulted in severe damage to the beach. This storm was reported as at least a 100-year storm event, and is the major storm of record for the area. The 1926 storm, as a naturally occurring event, should be taken into consideration in arriving at an historic erosion rate, but should not be allowed to bias the data. Accordingly, any survey immediately preceding it should not ordinarily be used as a starting point for determining an historic erosion rate, because it would overestimate the historic change rate. Similarly, the immediate post-storm survey of 1927 should not be used as the starting point for determining the historic change rate, since this data would overestimate the effects of the post-storm rebound (accretion), but ignore the erosion caused by the 1926 storm and artificially lower the erosion rate. Finally, the 1962 survey should be the most recent survey used to establish an historic erosion rate, since it marks the end of the predevelopment phase of the study. In the mid-1960's, shoreline structures (seawalls) were erected along portions of the coast, and a beach renourishment project was carried out at Crandon Park in 1969 resulting in filling at DNR Monument R-101. These events render post 1962 data unreliable in assessing an historic change rate.

       
       

   22. Here, the proof demonstrates that the appropriate time period for analyzing the historic change rate is 1851 to 1962. Based on an analysis of the historic change data for such period, the appropriate historic erosion rate for the project site is -2.3 feet per year.

       
       

   23. In reaching the foregoing conclusion, the Council's contention that pre-1919 survey data should be rejected in deriving an historic change rate because the construction of Government Cut had, by 1927, interrupted a littoral supply of sand in the neighborhood of 200,000 to 400,000 cubic yards of sand to the south has not been overlooked. However, the more credible proof demonstrates that the littoral transport of sand along this area of Florida's coast is approximately 10,000 cubic yards per year, and that little of that sand ever reached Key Biscayne. Accordingly, the construction of Government Cut had little, if any, impact on Key Biscayne. Also, notable to this conclusion is the fact that an analysis of the historic change rate from 1913 to 1962 calculates an historic erosion rate of -2.5 feet per year, an insignificant difference from that calculated for the period of 1851 to 1962, and the existence of an erosional trend at the central portion of Key Biscayne prior to the construction of Government Cut.

       
       

   24. Following the establishment of an historic erosion rate, the next step in assessing the expected location of the seasonal high-water line in 30 years in situations where, as here, the beach has been renourished, is a consideration of the effect and performance of such renourishment project. The importance of this analysis cannot be gainsaid, since a beach nourishment project may behave differently than the natural beach, as the nourishment may erode faster or slower than the natural beach or it may accrete.

       
       

   25. Factors which may cause a beach nourishment project to behave differently than the natural beach include project design, such as the length and width of the project, the seaward slope of the fill material, and the nature

       of the fill material; and, natural and manmade factors, such as offshore shoals, jetties, and breakwaters.

       
       

   26. The length and width of a project is very significant in terms of how long the project will remain in place. A project which is short in length will have a tendency to erode at a faster rate than a long project or the natural beach. This loss, referred to as "end losses" or "spreading-out losses," is not necessarily a loss of material from the system, but rather a redistribution of the sediment to the outer edges of the nourishment project. These spreading-out losses are caused by the project's exposure to waves that occur from offshore. As a nourishment project is exposed to waves, it reacts to the force of those waves by spreading out in an alongshore direction, resulting in a reduction in the overall width of the project. A longer project, such as the nourishment project in the existent case, will erode from the ends more slowly than a small project and, consequently, maintain its width and life for a greater period of time.

       
       

   27. The seaward slope of the nourished beach will also affect the project's performance. When a nourishment project is constructed, the seaward slope of the beach may initially be steeper than the slope which existed prior to nourishment, and may be irregular in shape compared to the natural shoreline. During the slope adjustment process, gravity and waves act on the shoreline to create a more natural slope and shape. During this process, the upland portion of the beach, as well as any irregularities in the shoreline, will experience shoreline recession, with the material being redistributed along shore and offshore. This adjustment process, and the effects it will have on the project's performance, may extend over several years after nourishment is completed.

       
       

   28. The grain size of the material used in the nourishment project can also affect the performance of the project. If the sediments used to construct the nourishment project are essentially of the same grain size and quality of the sediments which existed on the natural beach, then the nourished beach can be expected to perform, after initial slope adjustment, in much the same manner as the natural beach..

       
       

   29. Natural features or manmade structures which may affect the performance of the nourishment project include the shoreline and offshore characteristics of the area that can increase or slow the rate at which the material may otherwise erode, or a groin or natural feature that would tend to confine the project and prevent or minimize spreading-out losses.

       
       

   30. Here, the nourishment project is a long project, approximately 10,000 feet in length. This factor will contribute favorably to the project's longevity. The material used in the nourishment project is very similar to that which existed on the natural beach. Therefore, after initial slope adjustment, the nourished beach should perform in a manner similar to the natural beach. Finally, the portion of the beach fronting the hotel is bordered to the north and south by areas which are historically stable or accreting. This factor should stabilize the ends of the project, and reduce the alongshore spread which would otherwise occur. In sum, after the slope and shoreline have adjusted to a natural profile and shape, the nourishment project should perform in a manner very similar to the pre-nourishment beach.

       
       

   31. While the nourishment project should ultimately perform similar to the pre-nourished beach, little time has elapsed since completion of the project for slope and shoreline adjustment or to demonstrate stabilization. Here, the

       nourished beach was profiled by man (bulldozers), with the reprofiling in she area of the hotel being completed around July 20, 1987. The Hotel submitted its application for the subject permit on January 14, 1988, together with a survey of the area dated August 1, 1987. Based on this survey, DNR proposes to establish the 30-year seasonal high-water line by horizontally shifting the profile depicted on the survey in a landward direction.

       
       

   32. To predict the performance of the beach nourishment over time, the Hotel offered the results of an analytical computer model run by Dr. Robert Dean, an expert in coastal and oceanographic engineering and coastal processes. That model predicts spreading-out losses," and considers site specific factors that will affect the nourishment project, including pre-existing shoreline conditions, size and quality of the beach fill, volume, length of the project, conditions at the end of the fill, and the affect of wave forces on the coast. The wave data relied upon by Dr. Dean to drive his model was derived from a wave gauge located just north of Government Cut. The wave characteristics at Key Biscayne are, however, dissimilar to those experienced off Miami Beach due to the wave damping characteristics of the offshore area of Key Biscayne. While dissimilar, Dr. Dean opined that the data from Miami Beach could be reliably used as a conservative estimate of the force of waves at Key Biscayne, and that his model would, thereby, present a worst case scenario or prediction of spreading-out loss of sediment on the nourished beach. Based on such analysis, Dr. Dean predicted that shoreline recession on the nourished beach, attributable to spreading-out losses, would amount to 28 feet over the next 30 years, most of which would occur in the early years of the project. When combined with the historic change rate of -2.3 feet per year for 30 years, Dr. Dean calculates that 97 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 102 feet landward of the seasonal high-water line.

       
       

   33. DNR also made an erosion projection to predict the performance of the beach nourishment over time. In its analysis, DNR relied on monitoring data Dade County had gathered regarding the performance of the project. Such data measured, at various monuments, the amount of accretion or erosion that had occurred within the first 6 months of the project, and the amount of accretion or erosion that had occurred over the next 12 months of the project. The data was not, however, complete for all monuments within 3,000 feet of the hotel, and was otherwise unpersuasive for reasons hereinafter discussed.

       
       

   34. In performing its analysis, DNR chose to focus on one monument, PL-5- DC, which is located 200 feet north of the hotel. The data at that monument showed that within the first six months the mean high-water line (MHWL) had receded 22 feet, and that over the next 12 months it had receded an additional

       10 feet. Assuming a constant rate of erosion based on those two time points, DNR concluded that initial slope adjustment or stabilization would occur within four years, and that shoreline recession on the nourished beach over that 4-year period would amount to -41.6 feet. When combined with an historic change rate of -2.3 feet for the next 26 years, DNR's methodology calculates that 101.4 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 99 feet landward of the seasonal high-water line. 7/

       
       

   35. While Dr. Dean's model and DNR's analysis of Dade County data may yield similar results, neither methodology is, under the circumstances of this case, persuasive proof of how the nourishment project will perform or where the 30-year seasonal high-water line will be located.

   36. Here, the proof demonstrates that Key Biscayne enjoys a low-energy environment, and that the only force of significance ordinarily exerted along its coast occurs during the winter months when northeasters impact its shoreline. It is this wave energy that would, under normal circumstances, mold or adjust the seaward slope and shoreline of the nourishment project until it reached a more natural slope and shoreline, and after which the rate of erosion would be consistent with the historic change rate. However, since completion of the nourishment project, Key Biscayne has enjoyed unusually mild weather conditions, and the usual winter storms have not occurred. Consequently, the nourishment project has yet to be subjected to the forces of nature which can be reasonably expected to ultimately mold or adjust its seaward slope and shoreline.

       
       

   37. DNR's conclusion that the nourishment project will reach stability within four years, based on its analysis of the meager data provided by Dade County, is simply unpersuasive. That data, which appears on page 6 of DNR's exhibit 5, showed that at monument PL-5-DC the MHWL had receded 22 feet in the first six months of project existence and 10 feet over the course of the next 12 months. Based solely on these two measurements, DNR calculated a straight line decreasing rate of erosion to conclude that within four years the project would erode at the historic change rate. DNR's methodology and assumption, based on only two points of measure within the first 18 months of project existence, is not credible or persuasive proof of how the nourishment project will perform, and is rendered even less persuasive In view of the mild weather that affected Key Biscayne during such time period.

       
       

   38. Dr. Dean's opinion, based on his analytical computer model, which assessed shoreline recession on the nourished beach attributable to spreading- out losses, is likewise unpersuasive proof of how the nourishment project will perform. While Dr. Dean considered spreading-out losses and the historic change rate in reaching his conclusion, he failed to address offshore losses of sediment that will occur as the seaward slope of the project adjusts to a more natural profile. Here, the proof demonstrates that the seaward slope was constructed much more steeply than the natural slope, and that in the first 18 months of project existence significant quantities of fill have been lost offshore. At monument PL-5-DC the slope remains steep. Notably, while Dr. Dean calculated a spreading-out loss for the life of the project of 28 feet under what he termed a worse case scenario of wave height, the MHWL at the nourishment project has already receded 32 feet, under mild weather conditions, in the first

       18 months of existence.

       
       

   39. Compared with Dr. Dean's and DNR's conclusions, the Army Corps of Engineers (Corps), which designed the nourishment project, calculated a loss rate of approximately 22,000 cubic yards of fill each year. Should the project perform consistent with the Corps' estimate of project life, it will have receded to the Dade County erosion control line within 10 years, and over the course of the next 20 years to a point such that the proposed addition would lie seaward of the 30-year seasonal high-water line. Under the circumstances of this case, a calculation of the probable location of the 30-year seasonable

       high-water line, based on the Corps' estimate of the performance of the nourishment project, is more compelling than that of Dr. Dean or DNR. 8/

       
       

       Impact on the beach and dune system

       
       

   40. Where, as here, construction is proposed seaward of the CCCL, Section 161.053(5)(a)3, Florida Statutes, requires DNR to consider the potential impacts which the location of the proposed structures or activities may have on the

       beach-dune system. That system includes the beach, the dunes, and the overwash areas, which are interrelated by the sediment erosion and accretion process. 9/

       
       

   41. DNR's analysis of potential impacts to the beach-dune system includes both short-term and long-term impacts of proposed construction. Short-term impacts are those which may arise during construction of a project and are often a concern in sensitive areas, such as those areas characterized by natural dune features and dune-stabilizing vegetation. Long-term impacts of a project may include increased flooding caused by a lowering of dunes and increased erosion caused by a lowering of dunes or by a net loss of sand from the beach-dune system.

       
       

   42. Impact to the beach-dune system can also be caused by increased pedestrian traffic associated with the construction of a major habitable structure. Pedestrian-caused impacts are, however, a potential concern only in areas where there are dune features and stabilizing vegetation which could be destroyed. In the absence, of these dune features, pedestrian traffic has no significant impact to the beach-dune system.

       
       

   43. Here, the site of the proposed construction does not have any prominent dune features or stabilizing dune features or stabilizing dune vegetation. In fact, the site is the present location of an asphalt parking lot, which extends 40 feet seaward of the footprint of the proposed construction. Construction of the project will not result in any net excavation of material. Since dunes will not be lowered and there will be no net loss of material, there will be no increased flooding or erosion caused by the project. Under such circumstances, the proof demonstrates that there will be no long-term or short-term impacts to the beach-dune system occasioned by the project.

       
       

       Adverse cumulative impact on the beach-dune system

       
       

   44. Section 161.053(5)(a)3, Florida Statutes, also requires DNR to assess the potential cumulative impacts to the beach-dune system that may be caused by construction seaward of the CCCL. Here, the proof demonstrates that the proposed project, either singularly or in combination with other existing or similar projects, would not have any adverse impact to the beach-dune system.

       
       

       Impact on adjacent property

       
       

   45. Construction activities proposed for a location seaward of the CCCL are also analyzed by DNR to assess their impact on adjacent properties. Rule 16B-33.007(2), Florida Administrative Code. Such analysis includes a determination of whether construction activities will be confined on-site; whether a lowering of dunes will occur such that increased flooding on adjacent property could occur; whether elevations on the proposed construction site will be lowered such that flooding of adjacent property could occur; and whether proposed construction, in the event of a major storm event, would potentially increase erosion on adjacent property. Here, the proof demonstrates that construction activities will be confined on site, there will be no lowering of the dunes or elevations, and that there will be no net excavation of materials such that any increased risk of flooding or erosion could occur to either the project site or to adjacent properties.

       
       

       Interference with public beach access

       
       

   46. One purpose of CCCL permitting is to preserve public beach access. Sections 161.053(1) and (5)(e), Florida Statutes. "Public access" is defined as

       "the public's right to laterally traverse the sandy beaches of this state where such access exists on or after July 1, 1987." Section 161.021(1), Florida Statutes. The public presently does not have east-west access to the beach at the Sonesta Beach Hotel, and is not entitled to such access by law. The Hotel does not propose to hinder existing north-south (shore parallel/lateral) beach access, and the proposed project would not impede such access until the seasonal high-water line receded to the project. 10/ While the project might limit lateral access at times once the seasonal high-water line recedes, such impact would be de minimis in the instant case since construction of the project would not be seaward of existing structures on the Hotel's property.

       
       

       Compliance with local zoning requirements

       
       

   47. In order for a permit application to be deemed complete, an applicant must provide DNR with written evidence, provided by the appropriate local governmental-agency having jurisdiction over the activity, that the proposed development does not contravene local setback requirements or zoning or building codes. Rule 16B-33.008(2)(c), Florida Administrative Code. By letter dated February 10, 1988, the Hotel submitted to DNR a letter from Metropolitan Dade County's Department of Building and Zoning which indicated that the site plan for the proposed project was consistent with existent regulations. On April 21, 1988, DNR deemed the Hotel's application complete.

       
       

   48. While not contesting the consistency of the proposed project with local regulations at the time the Hotel's application was deemed complete, the Council contends that subsequent events have rendered its proposal inconsistent with such regulations. In this regard, the proof demonstrates that the Hotel received site plan approval for the proposed addition from Dade County in November 1988, but that its application for a bull ding permit was denied and returned to the Hotel for further action. To date the Hotel has not sought to further process such application with the County.

       
       

   49. On April 4, 1989, Dade County enacted Ordinance No. 89-23, effective April 14, 1989, relating to construction seaward of the CCCL on Key Biscayne. Pertinent to this case, the ordinance prohibits the new construction of major habitual structures and severely restricts the construction of nonhabitable structures seaward of the CCCL, absent a variance. At hearing, no proof was offered that any portion of the proposed project would qualify for a variance, or that the nonhabitable portion of the project complied with the requirements of the new ordinance. 11/

       
       

       CONCLUSIONS OF LAW

       
       

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

       Standing

       
       

   51. Pertinent to this proceeding, Section 120.57, Florida Statues, provides:

       
       

       The provisions of this section

       apply in all proceedings in which the substantial interests of a party are determined by an agency....

       
       

       "Party" is defined by Section 120.52(12), Florida Statues, to include:

       
       

       (b) Any.. person.. whose

       substantial interests will be affected by proposed agency action, and who makes an appearance as a party.

       
       

   52. Chapter 120, Florida Statues, does not define substantially affected persons. The Florida courts have, however, adopted the federal "injury-in-fact" and "zone of interest" tests governing standing. Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014 (Fla. 1st DCA 1985). Under this two-prong test, a person is substantially affected if he can demonstrate that he will suffer "injury-in- fact" which is of sufficient immediacy to entitle him to relief and the injury is of a type of nature which the proceeding is designed to protect (the "zone of interest"). The first aspect of the test deals with the degree of injury, and the second with the nature of the injury. Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). Where, as here, the party is an association, it must also demonstrate that a substantial number of its members, although not necessarily a majority, are substantially affected by the proposed agency action; that the subject of the action is within the association's general scope of interest and activity; and that the relief requested is of a type appropriate for an association to seek on behalf of its members. See: Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982).

       
       

   53. Here, the proof demonstrated that the Council was formed in November 1987 to give the residents of Key Biscayne a more effective voice on matters of local interest, including the preservation of the environment of Key Biscayne. Of particular interest to the Council is the preservation and protection of the beaches of Key Biscayne which form an important part of that community's and the Council members' lifestyle. To date, the Council has been a motivating force behind the enactment of Dade County Ordinance No. 89-23, discussed supra, which established the CCCL as the mandatory setback line for new construction on Key Biscayne, as well as efforts to fund a cleanup of the beaches, to establish a vegetation dune system, and to protect the sea turtle population. Under the circumstances, it is concluded that the Council has demonstrated standing to contest the propriety of the proposed project.

       
       

       The pending application

       
       

   54. At issue in this proceeding is whether the application of the Hotel to construct and excavate seaward of the CCCL should be approved. As the applicant, the Hotel bears the burden of proof in this de novo proceeding to demonstrate its entitlement to the subject permit. Florida Department of Transportation v. J.W.C. Co. Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   55. Pertinent to this case, Section 161.053, Florida Statutes, provides:

       
       

       1. The Legislature finds and

          declares that the beaches in this state and the 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, endanger adjacent properties, or interfere with public beach access. 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 fronting on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida. Such lines 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 and the preservation of public beach access.

       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; make any excavation, remove any beach material, or otherwise alter existing ground elevations; drive any vehicle on, over, or across any sand dune; or damage or cause to be damaged such sand dune or the vegetation growing thereon seaward thereof, except as hereinafter provided....

          * * *

          (5)... a permit to alter, excavate, or construct on property seaward of

          established coastal construction control

          lines may be granted by the department as follows:

          1. The department may authorize an excavation or erection of a structure at any coastal location as described in subsection (1) upon receipt of an application from a property and/or riparian owner and upon the consideration of facts and circumstances, including:

             1. Adequate engineering data concerning shoreline stability and storm tides related to shoreline topography;

             2. Design features of the proposed structures or activities; and

             3. Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such

       beach-dune system, which, in the opinion of the department, clearly justify such a permit.

       * * *

       (e) The department shall limit the construction of structures which interfere with public access along the beach. However, the department may require, as a condition to granting permits, the provision of alternative access when interference with public access along the beach is unavoidable. The width and such alternate access may not be required to exceed the width of the access that will be obstructed as a result of the permit being granted.

       (6)

       (b) After October 1, 1985, and notwithstanding any other provision of this part, the department, or a local government to which the department has delegated permitting authority pursuant to subsections (4) and (16), shall not issue any permit for any structure, other than a coastal or shore protection structure, minor structure, or pier, meeting the requirements of this part, or other than intake and discharge structures for a facility sited pursuant to part II of chapter 403, which is proposed for a location which, based on the department's projections of erosion in the area, will be seaward of the seasonal high-water line within 30 years after the date of application for such permit. The procedures for determining such erosion shall be established by

       rule. In determining the area which will be seaward of the seasonal high- water line in 30 years, the department shall not include any areas landward of a coastal construction control line.

       
       

       DNR has established CCCL permitting criteria consistent with the foregoing provisions in Chapter 16B-33, Florida Administrative Code.

       
       

   56. Here, the proof demonstrated that the proposed construction would not, either alone or in combination with other existing or similar structures, adversely impact the beach-dune system, proposed or existing structures or adjacent properties, and that any interference with public beach access would be de minimis. While intervening changes in the building and zoning codes of Dade County may ultimately preclude the Hotel from constructing the proposed addition, such changes are not dispositive of the pending application. To the contrary, the Hotel complied with the provisions of Rule 16B-33.008(2)(c), Florida Administrative Code, by providing, with its application, written evidence from the appropriate local government that the proposed development did not contravene local setback requirements or zoning or building codes, and its application was, thereafter, deemed complete and a decision to approve the application was rendered. That local building and zoning codes may have subsequently changed should not now stymie the Hotel from completion of this application process since, if approved, any permit would carry the following condition mandated by Rule 16B-33.015(7), Florida Administrative Code:

       
       

       Issuance of a permit does not relieve the applicant of the responsibility to comply with all

       applicable federal, state, county and municipal laws, ordinances or rules; nor is the applicant relieved of the responsibility to obtain any other licenses or permits which may be required by federal, state, county, or municipal law.

       
       

       Under such circumstances, were DNR to approve the subject application, it would not be approving any activity contrary to local lab.

       
       

   57. Dispositive of the instant case is, however, the conclusion that the proposed construction is seaward of the 30-year seasonal high-water line. Under such circumstances, the project may not be permitted. Section 161.053(6)(b), Florida Statues.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the Hotel's application

to construct and excavate seaward of the CCCL.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of September 1989.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1989.

ENDNOTES

1/ In response to the Hotel's motion for more definite statement directed to the petition for formal hearing the Council withdrew its contention that interference with public access, adequacy of the design of the proposed construction, and compliance with local zoning and building codes were also at issue in this proceeding. At hearing, the council requested leave to amend its petition to raise as a disputed issue of material fact, whether the proposed construction complied with local zoning and building codes in light of Dade County Ordinance No. 89-23, effective April 14, 1989, and whether the proposed construction seaward of the CCCL was clearly justified by the applicant. Since the subject ordinance had recently been enacted and the Council could not have reasonably raised the issue previously, the Council's motion to raise the issue of compliance with local zoning and building codes was granted. The Hotel, although accorded the opportunity to request additional tine to address the issue, elected to proceed with the hearing as scheduled. The Council's motion to amend its petition to raise the issue of whether the proposed construction seaward of the CCCL was clearly justified was denied as untimely since there was no showing that such issue could not have been reasonably raised at an earlier time.

2/ The Hotel also had marked for identification its exhibits 10A, 10F, 11, 50 and 51, but did not offer such exhibits into evidence.

3/ Petitioner's exhibits 20-23 were depositions to which respondents raised a relevancy objection at hearing. Upon review of those depositions, respondents' objection is overruled and petitioner's exhibits 20-23 are admitted into evidence. Petitioner also had marked for identification its exhibits 5, 28-31, and 33. Petitioner did not offer its exhibits 5 and 33 into evidence, and its exhibits 28-31 were rejected on the basis of respondents' objection.

4/ Membership in the Council is limited to residents of Key Biscayne. To vote for a Council member (the governing board) one must also be a registered voter in Dade County. No dues or fees are charged to join the Council.

5/ The Hotel is a property owned or controlled by VMS Realty Partners. That organization also owns or controls the silver Sands Hotel and Sand Dollar Restaurant, as well as the Key Biscayne Hotel and Villas. At the site of the Key Biscayne Hotel and Villas, an application for a development of regional

impact is currently pending, but no hotel rooms are proposed seaward of the CCCL. No construction plans are currently existent for the Silver Sands Hotel parcel. The proposed construction in this case would not advance the general line of construction in the area, but prior to renourishment existent structures were affected by erosion.

6/ Reference points affected by seawalls are generally eliminated from the analysis because the data based on such points is not a reliable indication of an erosion rate. Once a beach has eroded back to a seawall, the data, based on surveys, would indicate that no erosion was occurring when, but for the seawall, the area would have continued to erode.

7/ In its analysis, DNR suggests that by focusing on monument PL-5-DC that it has presented a worst cases scenario because the monitoring data from the stations within 3,000 feet either side of the project site showed that the nourishment project was either stable or accreting DNR's suggestion is misleading. First, while the data to the north of the project, except PL-5-DC, does suggest accretion or stability, there is inadequate data to the south of the project to draw such a conclusion. Second, DNR's suggestion that any reliable trend can be demonstrated based on two measurements, as discussed infra, is not persuasive. An examination of the data which appears at page 6 of DNR's exhibit 5 for all of the monuments fails to demonstrate any consistent trends along the renourishment project. For instance, at PL-8-DC, the project eroded 40 feet in the first 6 months and accreted 20 feet in the next 12 months. At some monuments no data is available.

8/ At hearing, the Council also contended that wind erosion would impact the nourished beach such that its elevation would be lowered sufficiently to place the proposed addition seaward of the 30-year seasonal high-water line. The more persuasive proof demonstrates, however that wind erosion will not be a significant factor on the nourished beach.

9/ The overwash areas are those areas landward of the beach which do not have prominent dune features but which are subject to storm tide inundation and flooding.

10/ The proof demonstrates that at seasonal high tides the waters may be expected to reach an elevation of 5.4 feet NGVD.

11/ While the ordinance provided that it was to be effective 10 days after enactment, it also provided:

Section 3. Filing with State Department of Natural Resources. The

Clerk of the Board is hereby directed to send a certified copy of this ordinance to the Bureau of Laws, Department of State, The Capitol, Tallahassee, Florida, 32304, for approval by the State Department of Natural Resources pursuant to Section 161.053(4), Florida Statues.

By Ordinance No. 89-57, dated June 20, 1989, effective June 30, 989, Section 3 of Ordinance No. 89-23 was repealed.

APPENDIX

The Council's proposed findings of fact, as set forth in its substituted proposed recommended order, are addressed as follows:

1. Rejected as not a finding of fact but a statement of the issue. 2-10. Addressed in paragraphs 4-6.

11 & 12. Not necessary to result reached or subordinate.

13-18. To the extent pertinent, addressed in paragraphs 1, 43, and footnote 5.

19 & 20. Not relevant.

21. Addressed in paragraph 13.

22-25. To the extent pertinent, addressed in paragraphs 1-3, and 47. 26-29. Rejected as not a finding of fact.

30-45. Addressed in paragraphs 47-49, otherwise - rejected as not supported by the proof.

46-52. Stricken per order of even date. Such findings are based on a proffer and not competent proof and are, therefore, improper.

53-57. Addressed in paragraphs 13-15, and 24.

58-72. To the extent pertinent, addressed in paragraphs 7-10. 73-78. Addressed in paragraphs 17, 18, and 21.

79-83. Addressed in paragraphs 17, and 19-22.

84-90. Addressed in paragraphs 16, 22, and 23.

91-96. Addressed in paragraphs 11 and 14.

97-100. Addressed in paragraphs 36-38.

101. To the extent pertinent, addressed in paragraph 14.

102-108. Not relevant, comment on the testimony, or subordinate. 109-126. Addressed in paragraphs 31-39.

127-137. Addressed in paragraphs 13-39.

138-140. Addressed in paragraphs 40-43, and footnote 8.

141-145. To the extent pertinent, addressed in paragraphs 1, 43, and footnote 5.

The Hotel's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 1 and 2, and conclusions of law paragraph 1.

2. Not relevant.

3. Addressed in paragraph 1.

4. To the extent pertinent, addressed in paragraphs 1 and 42. 5-7. Addressed in paragraphs 2, 3, 14, and 47.

1. Addressed in paragraphs 7 and 9.

2. Addressed in paragraph 40.

10 & 11. Addressed in paragraph 41.

12. Addressed in paragraph 42.

13 & 14. Addressed in paragraph 43. 15-17. Addressed in paragraph 44. 18-20. Addressed in paragraph 45.

21. Addressed in paragraph 46.

22-26. Addressed in paragraphs 47-49.

1. Addressed in paragraph 13.

2. Addressed in paragraph 14.

3. Addressed in paragraph 15.

4. Addressed in paragraph 18.

5. Addressed in paragraphs 15 and 16.

6. Addressed in paragraph 17.

7. Addressed in paragraphs 18 and 20.

8. Addressed in paragraph 21.

9. Addressed in paragraph 20.

36 & 37. Addressed in paragraphs 23 and footnote 8.

38 & 39. Addressed in paragraph 22.

1. Addressed in paragraphs 11 and 12.

2. Addressed in paragraphs 13 and 14.

3. Addressed in paragraphs 24, 25, 27, and 31-35.

4. Addressed in paragraphs 15 and 25.

44 & 45. Addressed in paragraphs 30, 31, 33, and 34. 46-49. Addressed in paragraphs 26, 32, and 35-39.

50 & 51. In large part rejected as comment on the evidence or argument. However, addressed in paragraphs 36-39.

52-54. Addressed in paragraphs 4-6.

DNR's proposed findings of fact are addressed as follows: Addressed in paragraph 1.

Addressed in paragraph 2. Addressed in paragraph 3.

4-6. Addressed in paragraphs 4-6.

7-10. Addressed in paragraphs 47-49.

11. Addressed in paragraph 40.

12-17. Addressed in paragraph 41.

18. Addressed in paragraph 42.

19-21. Addressed in paragraph 43.

22-24. Addressed in paragraph 44.

25-27. Addressed in paragraph 45.

1. Addressed in paragraphs 13 and 14.

2. Addressed in paragraph 15.

30 & 31. Addressed in paragraph 16.

32. Addressed in paragraph 17.

33 & 34. Addressed in paragraphs 20-22

35 & 36. Addressed in paragraph 15.

1. Addressed in paragraph 24.

2. Addressed in paragraph 25.

3. Addressed in paragraph 26.

4. Addressed in paragraph 27.

5. Addressed in paragraph 28.

6. Addressed in paragraph 29.

7. Addressed in paragraph 32.

8. Subordinate.

45 & 46. Addressed in paragraph 30.

47. Addressed in paragraphs 30, 36, 37, and footnote 7. 48-51. Addressed in paragraphs 33-37, and footnote 7. 52-56. Addressed in paragraphs 32, 35, and 38.

COPIES FURNISHED:

Thomasina H. Williams, Esquire Eugene E. Stearns, Esquire Suite 2200 Museum Tower

150 West Flagler Street Miami, Florida 33130

Dana Weihle, Esquire

Department of Natural Resources 3900 Commonwealth Boulevard

The Marjory Stoneman Douglas Building Tallahassee, Florida 32399-2400

William E. Williams, Esquire Rex D. Ware, Esquire

Post Office Box 1794 Tallahassee, Florida- 32302

H. Ray Allen, Esquire 618 Whitehead Street

Key Biscayne, Florida 33040

Deborah Getzoff, Esquire

101 North Monroe Street Suite 910

Tallahassee, Florida 32301

Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth boulevard

The Marjory Stoneman Douglas Building Tallahassee, Florida 32399-2400

Ken Plante General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

The Marjory Stoneman Douglas Building Tallahassee, Florida 32399-2400

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEY BISCAYNE COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NOS. 88-4668

) 91-5105F

) STATE OF FLORIDA, DEPARTMENT OF ) NATURAL RESOURCES and BISCAYNE ) BEACH HOTEL ASSOCIATES, LTD., KEY ) BISCAYNE LIMITED PARTNERSHIP, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a hearing in the above- styled case on October 7, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Thomasina H. Williams, Esquire

Eugene E. Stearns, Esquire Suite 2200 Museum Tower

150 West Flagler Street Miami, Florida 33130

For Respondent, Dana Weihle, Esquire

Department of Department of Natural Resources Natural Resources: 3900 Commonwealth Boulevard

MS-35 Douglas Building Tallahassee, Florida 32399-2400

For Respondent, Robert D. Fingar, Esquire Biscayne Beach Huey, Guilday, Kuersteiner Hotel Associates, & Tucker, P.A.

Ltd./ Key Biscayne Suite 900

Partnership: 106 East College Avenue Post Office Box 1794 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

At issue in this proceeding is what costs, if any, are recoverable by petitioner as a consequence of its successful prosecution of an appeal from the agency's final order heretofore rendered in the above-styled matter.

PRELIMINARY STATEMENT

On July 29, 1991, petitioner, Key Biscayne Council (Council), served a motion, pursuant to Rule 9.400(a), Fla. R. App. P., "to assess and enter judgment for taxable costs" against respondents, Department of Natural Resources (Department) and Biscayne Beach Hotel Association Ltd./Key Biscayne Limited Partnership (Hotel). The predicate for such motion was the Council's successful prosecution of an appeal from the final order heretofore rendered by the agency in the above-styled matter.

The Department and the Hotel opposed the Council's request, and moved for the assessment of fees and costs under the provisions of Section 120.57(1)(b)5, Florida Statutes, contending that the Council's motion was frivolous or for an improper purpose. For the reasons set forth in a separate final order rendered this date, the motions of the Department and Hotel for fees and costs under section 120.57(1)(b)5 are denied.

At hearing, the Hotel advised the Hearing Officer that it would be withdrawing its application which formed the subject matter of this proceeding, and on November 18, 1991, the Hotel filed a copy of a letter, dated October 9, 1991, to the Department wherein it withdrew its application.

FINDINGS OF FACT 1/

Background

1. On July 29, 1991, the Council served a motion "to assess and enter judgment for taxable costs" against the Department and Hotel, based on its status as the prevailing party in the matter of Key Biscayne Council v. Department of Natural Resources, 16 FLW D1239 (Fla. 3d DCA 1991). The mandate on such opinion was rendered to the Department on June 27, 1991.

   
   

2. By letter of August 5, 1991, filed with the Division of Administrative Hearings (DOAH), on August 12, 1991, the Department forwarded a copy of the mandate and opinion of the Third District Court of Appeal to DOAH, and returned jurisdiction over the case to DOAH. Thereafter, by order of August 26, 1991, DOAH's file bearing Case No. 88-4668 was reopened and jurisdiction was accepted.

   
   

   The motion to tax costs

   
   

3. The Council's motion to tax costs seeks recovery of a myriad of expenses incurred during the course of these proceedings from August 30, 1988, through July 9, 1991. There was, however, no proof regarding the substance or necessity for incurring the vast majority of such expenses, and the vast majority of such expenses were not related to costs associated with the appeal.

   
   

4. Of the costs for which recovery is sought, only the following were identified by the Council at hearing as being incidental to the appeal:

   
   

   1. The expense on 7/12/89 of $2,192.26 paid to Associated Court Reporters for a copy of the transcript of hearing.

      
      

   2. The expense on 7/19/90 of $250.00 paid as the filing fee for the Third District Court of Appeal.

      
      

   3. The expense on 8/10/90 of $108.25 for photocopy services which the Council states was the cost to copy the appellant's brief.

   4. The expense on 8/10/90 of $60.25 for postage and delivery charges which the Council states was the cost of serving copies of the appellant's brief.

      
      

   5. The expense on 10/16/90 of $91.25 for photocopy services which the Council states was the cost to copy the appellant's reply brief.

      
      

   6. The expense on 10/16/90 of $36.75 for postage and delivery charges which the Council states was the cost of serving copies of the appellant's reply brief.

      
      

   7. The expense on 10/16/90 of $17.44 for long distance telephone charges which the Council states related to conversations it may have had with the Department during the pendency of the appeal.

      
      

      The Hotel's withdrawal of its application

      
      

5. By letter of November 18, 1991, the Hotel filed with DOAH a copy of its letter of October 9, 1991, to the Department which withdrew its permit application at issue in this proceeding. Such action, but for the resolution of the Council's motion for costs, renders these proceedings moot.

   
   

   CONCLUSIONS OF LAW

   
   

6. Pertinent to this case, Rule 9.400(a), Fla. R. App. P., provides:

   
   

   . . . Costs shall be taxed in favor of the prevailing party unless the Court orders otherwise. Taxable costs shall include:

   1. fees for filing and service of process;

   2. charges for preparation of the record;

   3. bond premiums; and

   4. other costs permitted by law.

   Costs shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.

   
   

7. Here, the Department and Hotel contend that the Council's motion to tax costs was untimely because it was not served until 31 days after the date the mandate issued. Such contention is not, however, persuasive.

   
   

8. Rule 9.420, Fla. R. App. P., provides:

   
   

   In computing any period of time prescribed or allowed by these rules . . . the day of the

   . . . event . . . from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or a holiday . . ., in which event, the period shall run until the end of the next day that is neither a Saturday, Sunday or holiday. . . .

   
   

   The thirtieth day following the rendition of the mandate was July 28, 1991, a Sunday. Accordingly, the Council's motion, served July 29, 1991, was timely.

9. The Council's appellate cost of $2,192.26, incurred to secure a copy of the transcript, and cost of $250.00, paid as the filing fee for its appeal, are recoverable. Rules 9.200(b)(1) and 9.400(a)(1) and (2), Fla. R. App. P., and Wood v. Walt Disney World Co., 405 So.2d 275 (Fla. 4th DCA 1981). The balance of the Council's appellate costs are not, however, recoverable. Rule 9.400(a), Fla. R. App. P.

   
   

10. With regard to those costs claimed by the Council that are not associated with the appeal but, rather, associated with the proceeding before DOAH or thereafter, no statute or rule has been cited, and none has been independently found, which would authorize the recovery of such costs under the circumstances of this case. Accordingly, such other costs are not recoverable. See:Caldwell v. Division of Retirement, Florida Department of Administration,

    344 So.2d 923 (Fla. 1st DCA 1977), quashed in part and approved in part, 372 So.2d 438 (Fla. 1979), and Schoettle v. Department of Administration, 522 So.2d 962 (Fla. 1st DCA 1988).

    
    

11. Finally, with regard to the ultimate liability to pay such costs, it is concluded that where, as here, liability flows from an agency's obligation to process an application for a permit, that the primary obligation to pay such costs should be born by the applicant. Accordingly, it is concluded that the Hotel's obligation to pay such costs is primary, and the Department's obligation is secondary.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered taxing appellate costs in the total sum of $2,442.26 in favor of the Council, that the Hotel be held primarily liable for the payment of such costs and the Department held secondarily liable for the payment of such costs, that the Council's motion to tax costs be denied in all other respects, and that in view of the Hotel's withdrawal of its application the Department's file be closed and the Council's petition be dismissed as moot.

RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of December 1991.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of December 1991.

ENDNOTE

1/ These findings of fact are based on the file of the Division of Administrative Hearings and the hearing held on October 7, 1991.

COPIES FURNISHED:

Thomasina H. Williams, Esquire Eugene E. Stearns, Esquire Suite 2200 Museum Tower

150 West Flagler Street Miami, Florida 33130

Dana Weihle, Esquire Department of Natural Resource 3900 Commonwealth Boulevard

MS-35 Douglas Building Tallahassee, Florida 32399-2400

Robert D. Fingar, Esquire Huey, Guilday, Kuersteiner

& Tucker, P.A.

Suite 900

106 East College Avenue Post Office Box 1794 Tallahassee, Florida 32302

Don E. Duden

Acting Executive Director Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

488-1554

Ken Plante General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

488-9314

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES

KEY BISCAYNE COUNCIL,

Petitioner,

vs. DOAH CASE NO. 88-4668

STATE OF FLORIDA, DEPARTMENT OF NATURAL RESOURCES and

BISCAYNE BEACH HOTEL ASSOCIATION, LTD./KEY BISCAYNE LIMITED PARTNERSHIP,

Respondents.

/

FINAL ORDER

THIS CAUSE came before the Governor and Cabinet of the State of Florida, sitting as the head of the Department of Natural Resources (the "Department"), at the regularly-scheduled Cabinet Meeting held July 21, 1992, pursuant to the entry of a Recommended Order in the above-styled cause by the Division of Administrative Hearings. The Recommended Order is attached as "Exhibit A" and hereby incorporated by reference. After having considered the complete record in this matter, and being otherwise fully advised in the premises, it is hereby adjudged as follows:

PRELIMINARY MATTERS

In January, 1988, the Respondent, Biscayne Beach Hotel Associates, Ltd., Key Biscayne Limited Partnership (the "Hotel"), filed an application with the Department for a Coastal Construction Control Line ("CCCL") permit. In August, 1988, the Council filed a petition challenging issuance of a permit to the Council and requesting an administrative hearing. On the day the hearing was to begin, the Council moved to amend its petition. The Hearing Officer denied

the Council's Motion to Amend as untimely. Following the administrative hearing, the Department entered an order approving the Hotel's application for a CCCL permit.

On appeal of the Department's order, the Third District Court of Appeal found that the Hearing Officer abused his discretion in denying the Council's Motion to Amend. Pursuant to Section 120.68(8), Florida Statutes, the Court reversed the order and remanded for further agency action. See Key Biscayne Council v. State, Department of Natural Resources, 579 So. 2d 293 (Fla. 3rd DCA 1991). The Court's mandate to the Department was rendered on June 27, 1991.

In July, 1991, the Council filed a Motion for Costs based on its status as the prevailing party in the matter of Key Biscayne Council v. State1 Department of Natural Resources.

FINDINGS OF FACT

The Findings of Fact contained in "Exhibit A" are adopted in toto.

CONCLUSIONS OF LAW

The Council's Notion for Costs is predicated upon Rule 9.400(a), Florida Rules of Appellate Procedure, which provides, in part, that "costs shall be taxed in favor of the prevailing party unless the Court orders otherwise." In August, 1991, the Department filed its Response to the Council's Motion for Costs. The Department argued that while it is a party herein by virtue of its having issued the subject permit, the Department has no cognizable interest in the outcome of the proceeding. Thus, the Department is not an appropriate party against whom costs may be assessed. See Jack Eckerd Corp. v. Florida Unemployment Appeals Commission, 525 So. 2d 468 (Fla. 3d DCA 1988).

In the Council's Reply to the Department's Response to Motion for Costs, the Council raised the issue of whether costs may be awarded against an agency when remand is based on Section 120.68(8), Florida Statutes, citing the case of Jess Parrish Memorial Hospital v. Florida Public Employees Relations Comm.,

364 So. 2d 777 (Fla. 1st DCA 1978). The Council's argument is improper in that the Council did not predicate its Motion to Tax Costs upon the Administrative Procedures Act, Chapter 120, Florida Statutes, but rather relied upon Rule 9.400(a), Florida Rules of Appellate Procedure. However, even if the Council's argument could properly be raised herein, the Department is not secondarily liable for the Council's appellate costs.

Upon review of a recommended order, the agency head must enter a final order in accordance with the statutory parameters of Section 120.57(10), Florida Statutes. The provision states, in pertinent part, as follows:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

S 120.57(10), Fla. Stat. On appeal, a court in its discretion may award reasonable attorney's fees and costs to the prevailing party if the court finds that the appeal was "frivolous, meritless, or an abuse of the appellate process or that the agency action which precipitated the appeal was a gross abuse of the agency's discretion." S 120.57(10), Fla. Stat. An agency which does not "conform to and act consistently with the authority delegated" to it may be answerable to a prevailing party in costs and fees. Jess Parrish, 364 So. 2d at 785 citing Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974). However, in

this instance, the Department acted consistently with the authority delegated to it pursuant to Chapter 120, Florida Statutes.

The only mention of the denial of the subject Motion to Amend in the Recommended Order is found in the last sentence of footnote 1 in the Preliminary Statement which states: "The Council's motion to amend its petition to raise the issue of whether the proposed construction seaward of the CCCL was clearly justified was denied as untimely since there was no showing that such issue could not have been reasonably raised at an earlier time." The action of the Hearing Officer in denying the Motion to Amend was not set forth as a Conclusion of Law or Finding of Fact in the Recommended Order. Therefore, the Department had no authority to reject or modify the Hearing Officer's decision to deny the Council's Motion to Amend or to remand for further factual findings. See S 120.57(10), Fla. Stat.

The Department is not a proper party against whom the Council's appellate costs may be assessed, and, alternatively, the Department acted consistently with the authority delegated to it.

In light of the foregoing, the Conclusions of Law submitted in the Hearing Officer's Recommended Order are hereby adopted except for that portion of paragraph 6, appearing at page 6 of the Recommended Order, which addresses the liability of the Department for the appellate costs of the Petitioner, Key Biscayne Council ("Council"). That paragraph is hereby amended to read as follows:

Finally, with regard to the ultimate liability to pay such costs, it is concluded that where, as here, the agency's sole interest in the proceeding is whether an application for a permit is consistent with the statutes and rules under which it operates, it is the applicant that should pay such costs.

Accordingly, it is concluded that the Hotel is obligated to pay the costs- awarded herein.

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that:

1. The Hotel shall be liable for appellate costs in the total sum of Two Thousand Four Hundred Forty Two Dollars and Twenty Six Cents ($2,442.26) in favor of the Council.

   
   

2. The Council's Motion for Costs is denied in all other respects.

   
   

3. In view of the Hotel's withdrawal of its application, the Department's file shall be closed and the Council's petition is dismissed as moot.

DONE AND ORDERED this 27 day of July, 1992, in Tallahassee, Florida.

Kirby Green, III, Director Division of Beaches and Shores

Filed this 27 day of July, 1992.

Department Clerk

NOTICE OF RIGHTS

The foregoing constitutes final agency action. Parties have the right to seek judicial review of this final order pursuant to Section 120.68, Florida Statutes, and Rules 9.030(b)(1)(C) and 9.110, Florida Rules of Appellate Procedure. To initiate an appeal, a Notice of Appeal must be filed with the Department of Natural Resources, Office of the General Counsel, and with the appropriate District Court of Appeal within thirty (30) days of the date this final order is filed with the Agency Clerk. The Notice filed with the District Court must be accompanied by the filing fee specified in Subsection 35.22(3), Florida Statutes.

Copies furnished to:

Dana M. Wiehle

Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd., M.S. 35

Tallahassee, Florida 32399

Thomasina H. Williams, Esq. Eugene E. Stearns, Esq.

Suite 2200 Museum Tower

150 West Flagler Street Miami, FL 33130

Robert D. Fingar, Esq.

Huey, Guilday, Kuersteiner & Tucker, P.A.

106 East College Ave., Suite 900 Post Office Box 1794 Tallahassee, FL 32302

Docket for Case No: 88-004668

Orders for Case No: 88-004668