STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA ANN BUTLER, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5439

) HARRY B. WILLIAMS, JR., and ) DEPARTMENT OF NATURAL RESOURCES,)

)

Respondents. )

)

RECOMMENDED ORDER

On February 15, 1989 in Jacksonville, Florida, a formal hearing was held in this case. The authority for the conduct of the hearing was Section 120.57(1), Florida Statutes. Charles C. Adams served as the Hearing Officer. This Recommended Order is being entered following the receipt and review of the transcript of proceedings and upon examination of the exhibits admitted. In addition, the parties, through counsel, have offered proposed recommended orders and those have been read./1 The fact finding suggested in the proposed recommended orders is commented on in an Appendix to the Recommended Order.

APPEARANCES

For Petitioner: Walter R. Stedeford, Esquire

2039 Park Street

Jacksonville, Florida 32204

For Respondent: Lawrence R. Patterson, Esquire

Harry B. 3010 South Third Street Williams, Jr.: Suite A Jacksonville Beach, Florida 32250

For Respondent Dana M. Wiehle, Esquire Dept. of Natural Assistant General Counsel Resources: Douglas Building, Suite 1003

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 STATEMENT OF THE ISSUES

The issues to be considered in the course of this Recommended Order concern the application by Harry B. Williams, Jr., to be granted a permit by the Department of Natural Resources which would allow the construction of a single- family dwelling and appurtenant structures on his property seaward of the established coastal construction control line. See Section 161.053, Florida Statutes. In particular, Barbara Butler as Petitioner has challenged the Department's intent to grant the permit and has expressed concern that the project, if permitted, would have an adverse affect on the beach-dune system and adjacent properties. Furthermore, Ms. Butler believes that the Department has

failed to adequately respond to the necessity for considering the location of this dwelling as it relates to the 30-year erosion projection. Finally, Ms. Butler questions whether the Williams residence will have an adverse impact on nesting sea turtles, their hatchlings or associated habitat.

FINDINGS OF FACT

1. On February 10, 1988 Harry B. Williams made application to the Department of Natural Resources for permission to construct a single-family dwelling with appurtenant structures at 2831 Ponte Verda Boulevard South, South Ponte Verda Beach, Florida. The permit sought was a coastal construction control line permit which would allow construction seaward of that line in the direction of the Atlantic Ocean. A copy of that permit application may be found as Department's Exhibit Number 2. Associated with the permit application was a description of the plans related to the dwelling and other structures. This application was received by the Department February 11, 1988. Following a review of the permit application the Department deemed it complete as of February 22, 1988.

   
   

2. A site inspection was made of the property and a report was prepared by an employee with the Department, a Mr. Partel. The report may be found as Department's Exhibit Number 4, which includes photographs of the prospective building site, together with the surrounding property to include dwellings to the north and south of the lot where the Williams home would be built. As commented on by Mr. Partel the applicant had intended at that time to construct a single-family dwelling a maximum of 75 feet seaward of the coastal construction control line. Although this evaluator, Mr. Partel, felt that the applicant had requested the right to construct a dwelling which was in line with existing construction, he felt that it could be moved further landward and that it could be limited in deck size and that a cantilevened form of construction was preferable to the concrete called for in the plans set out in the application information. It was also suggested that the sea oats that were in the way of the construction should be relocated seaward on a dune face slope where a denuded area is found. In this connection, the Department is empowered to make suggestions to the applicant concerning the minimization of the adverse impacts on the beach-dune system.

   
   

3. Following the site visit of February 26, 1988 the Department wrote the applicant on March 11, 1988 and indicated concerns about the proximity of the dwelling to the crest of the dune. A copy of this correspondence may be found as Department's Exhibit Number 5. In the correspondence the Department asked the applicant to move the proposed dwelling 10 feet landward and that the 10 foot wide concrete patio, on the seaward side, be modified to a 10 foot wide wooden deck. The letter told the applicant that the approval would be conditioned on the sea oats and other dune grasses that would be disturbed by the proposed structures being replanted seaward of the project in the denuded areas of the dune. The applicant agreed to these changes. The relocation of the structure 10 feet landward took it away from the beach- dune system.

   
   

4. The modified site plan that was brought about by the suggested changes is found Department's Exhibit Number 6, a copy of that amended site plan. With the relocation the construction would be 66 feet seaward of the coastal construction control line. An aerial photograph of the site location reference the basic design of the dwelling and the proximity to the relevant or existing coastal construction control line is found as Department's Exhibit Number 3.

5. In responding to the suggestions to the change in location the modified site plan which moved the dwelling 10 feet landward was received by the Department on August 1, 1988. Under this arrangement the applicant had agreed to waive the requirements of Section 120.60, Florida Statutes pertaining to the obligation by the Department to review and decide its action of grant or denial within 90 days of date of receipt of the application.

   
   

6. With the changes being made to the location of the proposed dwelling and associated structures and the type of construction materials used in the patio on the seaward side, together with the relocation of the plant life, the impact on the beach-dune system and adjacent property is acceptable. There is no adverse impact on the beach-dune system or on the adjacent properties.

   
   

7. The location of the proposed dwelling and its associated structures as it relates to the 30-year erosion projection under the terms of Section 161.053, Florida Statutes, in this instance, shows that the dwelling would be approximately 55 feet landward of the 30-year erosion projection and not at risk. Calculations related to this finding may be found within Department's Exhibit Number 7.

   
   

8. The existing coastal construction control line dates from January 28, 1988. Although the original application referred to the previous line of 1978 in describing the site plan and survey, the reason for this was that the site plan and survey were prepared prior to the establishment of the January 28, 1988 line, as allowed. In the course of the hearing appropriate reference was made to the January 28, 1988 line as it relates to the anticipated location of the dwelling and other structures as modified at the instigation of the Department.

   
   

9. As contemplated by Section 161.053(5)(f), the Department required the applicant to provide mitigation of the- effects of the construction as a condition to a grant of the permit. Those permit conditions may be found in the Department's Exhibit Number 8, a copy of a proposed final order. Included within those would be the requirements for erection of a temporary construction fence on the site to protect existing native dune vegetation from the impacts of that construction, in addition to the requirement of the dune vegetation relocation. This would involve the irrigation and application of fertilizer to those plants with the expectation that a certain percentage would survive over time as described in this special condition.

   
   

10. This project will not pose a hazard to the sea turtle and its hatchlings and habitat for the sea turtles and hatchlings.

    
    

11. Ms. Butler, Petitioner in this cause, has a beach home which is north of the Williams property separated by a 10 foot easement between those properties. In mid July, 1988 Ms. Butler offered a written statement in opposition to the placement and size of the proposed dwelling together with other remarks and asked that the Department provide her information and documents pertaining to the application under the authority of Chapter 119, Florida Statutes.

    
    

12. On August 10, 1988 the Department dispatched a letter of inquiry to surrounding property owners to include Ms. Butler and solicited remarks concerning the Williams application to be provided on or about August 20, 1988.

    
    

13. Ms. Butler had received certain documents from the Department concerning the application sometime in the middle of August 1988.

14. On August 18, 1988 Butler made known her objection to the project on the grounds that the concerns about the 30-year erosion line and the size and placement of the dwelling.

    
    

15. On September 2, 1988 the Department informed Ms. Butler of the intent to grant the permit to Mr. Williams. A copy of that correspondence may be found as Petitioner's Exhibit Number 5. This led to a timely request for hearing by Ms. Butler stating her opposition to this project. The request was received in accordance with the Department's advice that the request must be filed by September 26, 1988.

    
    

16. Based upon the prehearing conference and the discussion of those issues which would be allowed for consideration as stated in the request for hearing and the statement of particulars that attend the request for hearing, commented on by the hearing officer at the commencement of the final hearing, and found within the transcript and further stated in the issues portion to this Recommended Order, this case has been carried forward.

    
    

17. The presentation made by the Petitioner, after the Department and applicant had offered their cases, was through her testimony and that of employees of the Department together with exhibits she offered. The testimony of the Department employees concerned the procedural techniques that the agency pursued in reviewing the application at issue. Ms. Butler described her concern for her property, and the area between her property and the Williams property. This is the 10 foot easement area which is sparsely vegetated and low. As a consequence she was concerned that her property might be destroyed with the advent of the Williams construction. She has no expertise in her own right nor did she present expert opinion from other witnesses which would tend to bear out her concern. She also expressed the concern that the Williams home, in its dimensions, was too large and that it should be relocated an additional 10 feet back from the adjusted placement following the Department's criticism of the original application. In effect, she would have the house placed 20 feet away from the sea as compared to the original site plan submitted with the application on February 10, 1988. Again, there is no competent evidence presented which would support her theory that this further relocation was needed. Her expression of concern for the sea turtles and their hatchlings and habitat was not well founded. Turtles are known to nest on the sandy flat beach area and the construction of the Williams property will not interfere with that area adjacent to the ocean.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and to the parties of this action in accordance with Section 120.57(l), Florida Statutes.

    
    

19. The Petitioner has standing to bring this petition in opposition to the grant of a permit to Mr. Williams, having successfully pled and proven that standing. See Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981).

    
    

20. Petitioner having made a timely challenge to the intended agency action in which the Department would grant a coastal construction control line permit, is incumbent upon the applicant in the hearing de novo to establish prima facie entitlement to the permit. See McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977) and Department of Transportation

    v. J.W.C. Company Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The evidence presented by the Department and the applicant made out the prima facie showing of entitlement to the grant of the permit having offered reasonable assurance of compliance with the various provisions within Chapter 161, Florida Statutes and Chapter 16B-33, Florida Administrative Code which have application in this dispute. Having made that showing it was necessary for the Petitioner to put to question that proof by the quality of evidence that would cause the rejection of the prima facie showing. Petitioner failed to successfully refute the prima facie showing. Therefore, it was unnecessary for the applicant to rebut the Petitioner's evidence.

    
    

21. The Williams project as described in these facts will not have adverse impact on the beach-dune system and adjacent properties and is in compliance with the requirements for permit as contemplated by Sections 161.053(1) and (5)(a), Florida Statutes and Rules 16B-33.005(2) and 16B-33.007(2), Florida Administrative Code.

    
    

22. This structure will be located sufficiently landward of the beach-dune system to permit fluctuations in the shoreline to occur and preserve the stability of the dune after storm induced erosion, as required by Rule 16B- 33.007(1), Florida Administrative Code

    
    

23. The applicant has shown that he will satisfactorily comply with Section 161.053(5)(a)2. related to design features of the proposed structure.

    
    

24. The project in question adequately responds to Section 161.053(6), Florida Statutes, in that aspect related to the 30- year erosion projection.

    
    

25. The project will not interfere with sea turtles, their hatchlings or their habitat and has satisfactorily responded to the requirements of Section 161.053(5)(c), Florida Statutes and Rule 16B-33.005(9), Florida Administrative Code.

    
    

26. The Department may condition the grant of this permit upon requirements of mitigation as described in the facts. This arrangement is as envisioned in Section 161.053(5)(f), Florida Statutes.

    
    

27. In summary, the applicant has demonstrated compliance with the requirements of Chapter 161, Florida Statutes and Chapter 16B-33, Florida Administrative Code and that showing was not overcome by any proof presented by the Petitioner in challenge.

RECOMMENDATION

Based upon a consideration of the facts and the conclusions of law reached, it is

RECOMMENDED:

That the Department enter a Final Order which grants a coastal construction control line permit to Harry B. Williams, Jr., based upon his modified plan required by the Department and upon the special permit conditions announced in the proposed final order, a copy of which is found as Department's Exhibit Number 8.

DONE and ENTERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 27th day of April, 1989.

ENDNOTE

1/ The motion to strike Petitioner's proposed recommended order is denied.

APPENDIX

The following discussion is given of the proposed facts of the parties.

Petitioner's Facts

Paragraphs 1 through 7 are subordinate to the facts found with the exception of the reference at paragraph 4 to the date February 27, 1988, which

should be February 26, 1988.

Paragraphs 8 and 9 are not necessary to the resolution of the dispute.

Paragraphs 10 and 11 are subordinate to facts found.

Paragraphs 12 and 13 are not necessary to the resolution of the dispute.

Paragraph 14 is subordinate to facts found.

Harry B. Williams, Jr. Facts

These facts are subordinate to facts found.

Department Facts

These facts are subordinate to facts found.

COPIES FURNISHED:

Walter R. Stedeford, Esquire 2039 Park Street

Jacksonville, Florida 32204

Lawrence R. Patterson, Esquire 3010 South Third street

Suite A

Jacksonville, Florida 32250

Dana M. Wiehle, Esquire Assistant General Counsel Department of Natural Resources Douglas Building, Suite 21003 3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Tom Gardner, Executive Director Department of Natural Resources Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Docket for Case No: 88-005439

Orders for Case No: 88-005439