STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

VIENTE CONDOMINIUM )

ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 89-3109

)

DEPARTMENT OF NATURAL )

RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal administrative hearing in the above-styled case on November 8, 1991, in Sarasota, Florida.

APPEARANCES

For Petitioner: David S. Maglich, Esquire

Ferguson, Skipper, et. al

P.O. Box 3018

Sarasota, Florida 34230

For Respondent: Dana M. Wiehle, Esquire

Department of Natural Resources 3900 Commonwealth Blvd.

M.S. 35

Tallahassee, Florida 32399 STATEMENT OF THE ISSUES

1. Whether the Department of Natural Resources (Department) is estopped from seeking to have Petitioner remove the viewing deck constructed by Petitioner without a permit while repairing and reconstructing its existing dune walkover structure based on the representation by the Department that no permit was required for reconstructing and repairing an existing storm-damaged dune walkover structure.

   
   

2. Whether Petitioner is entitled to receive a CCCL permit for its construction project under the provisions of Section 161.053, Florida Statutes (1989) and Chapter 16B-33, Florida Administrative Code.

PRELIMINARY STATEMENT

On December 30, 1988 Petitioner filed an application with the Department for an after the fact permit for a dune walkover structure with a 12 foot by 16 foot viewing deck at its terminus that had been constructed earlier, around the latter part of 1988. On March 22, 1989 the Department notified the Petitioner

that its application had been denied. By a Petition for Formal Hearing dated April 10, 1989, the Petitioner requested a formal administrative hearing. By letter dated May 31, 1989 the Department transferred this matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and to conduct the formal administrative hearing. After several continuance the matter was heard on November 8, 1991.

At the hearing, Petitioner presented the testimony of Claude S. Ozburn, Herbert L. Lovett, Russell Nowlen, Leonard A. Smalley and Walter L. Small.

Petitioner's exhibits 1 through 19 were received as evidence.

Department presented the testimony of Steve M. West, Carlos Carrero and Ong In Shin. Department's exhibits 1 through 10 were received as evidence.

A transcript of the proceedings was filed with the Division of Administrative Hearings on November 25, 1991. The parties requested an extension of time for filing proposed findings of fact and conclusions of law which was granted by order with the understanding that time constraint imposed by Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 22I-6.031(2), Florida Administrative Code. The parties timely filed their proposed findings of fact and conclusions of law under the extended time frame. A ruling on each of the proposed findings of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Viente Condominium, a Gulf-front condominium located in the Town of Longboat Key (Town) in Sarasota County, has been in existence since 1980. At the time of its construction, or within a year thereafter, a dune walkover was constructed on the Gulf side of the condominium, running from the structure towards the Gulf.

   
   

2. In 1988, a storm commonly referred to as the "No-Name Storm" affected the Sarasota County shoreline. As a result of the storm, the dune walkover on Petitioner's property was severely damaged, making its continued use unsafe.

   
   

3. Given the condition of the walkover, a decision was made by the Petitioner to repair the structure by shortening its length and lowering its height, and to add a 12 foot by 16 foot viewing deck at the terminus of the shorter dune walkover structure.

   
   

4. The Petitioner hired one Roger Miller, a local contractor, to perform the desired work. Miller was chosen because he was already engaged in work on property adjacent to Petitioner's and "was handy."

   
   

5. Miller filed an application to conduct the work desired by Petitioner with the Town or about June 23, 1988. The application specified that the work to be conducted was as follows:

   
   

   REPAIR BEACH CROSSOVER:

   1. REDUCE ELEVATION, DELETE 42 FT. OF

   2. SEAWARD STRUCTURE. REPLACE TREAD.

   3. CONSTRUCT REST AREA WITH STEPS.

      Attached to the application was a sketch showing how the Petitioner intended to shorten the existing structure and add a 12 foot by 16 foot viewing deck with steps at the terminus of the walkover structure.

      
      

6. The building permit was issued on July 26, 1988 which was several weeks after Miller began work on the Petitioner's property.

   
   

7. On or about July 7, 1988, while monitoring a project on property adjacent to Petitioner's, the Department's area inspector observed Petitioner's contractor conducting work on Petitioner's property. The work taking place at the time consisted of nothing more than the removal of derelict pilings and other portions of the storm-damaged dune walkover.

   
   

8. The area inspector approached the contractor to assess the magnitude of the work to be conducted. After satisfying himself that the work in progress, as observed by him and as described by the contractor, would not require a permit from the Department, the inspector left the site.

   
   

9. Several days later, the Department's inspector returned to the area. At that time he observed that the Petitioner's contractor was not only removing portions of the walkover, but was also constructing a deck.

   
   

10. The Department's inspector approached the contractor and informed him that a permit from the Department was necessary in order to construct an additional structure, such as a deck, on the property. After requesting to see the Department permit authorizing the construction and receiving no such permit, the inspector gave Petitioner's contractor a verbal cease and desist order as to the deck construction.

    
    

11. At the time of the verbal cease and desist order, approximately 5-10% of the deck was completed. After receiving the inspector's order, the contractor ceased work and took actions which indicated to the inspector that he intended to leave the site.

    
    

12. While Petitioner's contractor had made application to the Town on June 23, 1988 for a permit to conduct the work in question, at the time of the Department's verbal cease and desist order the contractor did not yet have a permit to conduct the work from the Town.

    
    

13. On July 26, 1988, Claude Ozburn, who was then the president of the board of directors of the Petitioner association, went to the Town's building department to inquire as to the status of Petitioner's permit.

    
    

14. As of the date of Mr. Ozburn's visit, no application had been submitted to the Department; Mr. Ozburn was under the impression, albeit a mistaken one, that the Town was responsible for submitting applications for building permits to the Department for approval.

    
    

15. While conversing with a secretary at the building department regarding the application, Mr. Ozburn made contact with a Mr. Lovett, who was then employed by the Town as a Special Services Representative. Lovett had not seen the Petitioner's building permit application until this date since he no longer reviewed building permit applications.

    
    

16. Although the record is not clear, it appears that Ozburn did not advise Lovett that the Department's area inspector had issued a verbal cease and desist order on the work already started because the inspector felt that a

    Department permit was required to construct a viewing deck at the terminus of the existing walkover.

    
    

17. Again, it is not clear from the record, but it appears that Lovett, after reviewing the building permit application, called the Department to inquire about the status of the unfiled Department application. In the presence of Ozburn, Lovett spoke with the Department's area engineer, Carlos Carrero, regarding the status of the unfiled application.

    
    

18. Mr. Carrero informed him over the phone that he was not familiar with the proposed project, so Mr. Lovett described for him the work proposed by Petitioner. Mr. Lovett described the work as simply the "reconstruction and repair of a storm-damaged dune walkover structure" (e.s.). Mr. Lovett did not offer specifics on the project, and no mention was made of the proposed viewing deck or of the fact that the area inspector had issued a verbal cease and desist order on the construction already begun on the viewing deck.

    
    

19. Based upon Lovett's representation of the work as involving only the "repair and reconstruction" of a storm-damaged structure, Carrero informed Lovett that a permit from the Department was not necessary.

    
    

20. Lovett then instructed the secretary to note on the Town application "per Carlos Carrero 2:13 p.m. 7/26/88," initialed the application, and instructed the secretary to process Petitioner's application. Prior to issuing the Town's permit, a Mr. Nowlen in the Building Department, confirmed with Carrero that "replacement of a storm-damaged dune walkover structure" would not require a permit from the Department.

    
    

21. The inspector's next visit to the property occurred on November 5, 1991, at which time he discovered that construction on the deck in question had been completed. The inspector sought out a representative of the Petitioner and issued a Warning Notice, advising that construction of the deck constituted a possible violation of Chapter 161, Florida Statutes.

    
    

22. After issuance of the Warning Notice, the inspector prepared a written violation report which identified as a violation the construction of a wooden viewing deck, seaward of the Coastal Construction Control Line (CCCL) without benefit of a permit from the Department.

    
    

23. Subsequent to receipt of the Warning Notice, on December 30, 1988, the Department received an application from Petitioner seeking authorization for the deck. March 22, 1989, the Department issued a Final Order denying the application and ordering removal of the deck. The walkover is not a subject of that order, and its propriety is not a subject of this proceeding.

    
    

24. The Department is the state agency given the responsibility for reviewing and approving applications to carry out excavation and construction activities on Florida's coastline. The Department's regulatory jurisdiction in this regard extends seaward of the CCCL which has been established in Sarasota County, Florida.

    
    

25. The beach-dune system plays an important role in protecting upland property from severe storms. Dunes serve as a buffer, protecting the upland from the potentially-damaging storm surge and storm waves associated with severe storms. During a storm event, storm waves erode dune material from the shoreline. This eroded material is transferred offshore, and creates a sandbar. This sandbar serves to "trip" the waves before they reach the shoreline, thereby

    lessening their destructive force. Once the storm is over the sandbar moves back to the shoreline, and through the interplay of wind and vegetation re-forms a dune.

    
    

26. Improperly-sited structures can impair the natural functioning of the system and jeopardize its protective value to the upland, as well as increase the danger of damage to upland structures in the area.

    
    

27. The deck in question is constructed of wood, is 12 x 16 feet in size, and is located on the seaward face of the frontal dune on the Petitioner's property, seaward of the Sarasota County CCCL.

    
    

28. The potential for adverse impacts from the structure in question would be its destruction during a "low-frequency" storm event; that is a storm event of such intense strength that it only occurs in either a twenty-year or fifty- year or hundred year return period. Upon the structure failing, the debris would be carried to either the area of habitable structures or to the active beach area.

    
    

29. If carried to the area of habitable structures (the most dangerous area) by the storm winds or waves the debris would act as an aerodynamically or hydrodynamically propelled missile with the potential for damaging upland structures. Depending upon both the extent to which the structure breaks apart and the force of the storm, the deck alone could be expected to produce in the neighborhood of fifteen hundred pounds of mass being propelled toward inland structures.

    
    

30. If the resulting debris from the deck were to stay within the seawardmost portion of the dune during the storm it would directly impact the dunes by constantly bumping into the dunes. Also, once the storm subsides and the debris settles down and is not removed, it could interfere with the growth of the existing or newly-emerging dune vegetation, and thereby interfere with dune recovery. This debris could also be a potential impact on the sea turtle habitat.

    
    

31. There is a potential for additional erosion to be attributed to the deck in the event of a storm that did not destroy the deck but had some interaction with the deck.

    
    

32. Without a storm there is a potential for an impact on the naturally- occurring dune migration and fluctuation because of the deck. The dune on Petitioner's property is migrating in a seaward direction at a very slow rate. As the dune continues to move seaward, the advancement of the vegetation which exists on the dune could be stunted because of the deck. This impact will have a greater potential in the event of a beach renourishment project because such a project would make more sand available to the system and encourage seaward migration of the dune. Such an impact has a potential for weakening the dune, and increasing the chances for damage to upland property during a storm event.

    
    

33. While there was evidence that the deck has had no significant impact on the dune or the vegetation, there was insufficient substantial competent evidence to show that the potential impacts discussed above would not occur or that the deck would be eligible for a CCCL permit under applicable statutes and rules.

    
    

34. Although the properties to either side of Petitioner are armored, there are areas to the south of Petitioner's property where a structure similar

    to the deck could be constructed. And, while the direct impacts to Petitioner's property may be moderate, the cumulative impact of the deck - the impact that would occur from repetition of similar structures along the shoreline, in similar locations - would result in a significant adverse impact on the beach- dune system.

    
    

35. If the deck were to be located to the landward side of the frontal dune, the potential for this type of impact would be greatly reduced. If placed on the landward side of the frontal dune, the deck would be protected from low frequency storm events, and would be less likely to be destroyed.

    
    

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

37. Petitioner has asserted that the Department should be estopped from opposing construction of the deck, based upon conversations that took place in July of 1988 between Mr. Lovett, with the Town of Longboat Key, and Carlos Carrero, the Department's area engineer for Sarasota County at that time.

    
    

38. It is a well-settled maxim that equitable estoppel may be applied against the State only in rare instances, and under exceptional circumstances. Department of Revenue v. Anderson, 403 So.2d 397, 400 (Fla. 1981). The State may be found to be estopped; however, in order to do so, the following elements must be shown:

    
    

    1. a representation as to a material fact that is contrary to a later-asserted position;

    2. reliance on that representation; and 3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.

    
    

    Anderson, 403 So.2d at 400, citing Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (1 DCA Fla. 1971). In the instant case, the Petitioner has failed to demonstrate the elements necessary to apply equitable estoppel against the Department.

    
    

39. Having failed to prove equitable estoppel, the Petitoiner, as the applicant for a CCCL permit, has the burden of establishing its entitlement to that permit by a preponderance of the evidence. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (1 DCA Fla. 1981). The evidence clearly establishes that Petitioner has failed to meet this burden.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That the Department enter a Final Order requiring the Petitioner to remove the 12-foot by 16-foot viewing deck located at the terminus of the Petitioner's walkover dune structure.

DONE and ENTERED this 31st day of January, 1992, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1992.

ENDNOTES

1/ The Petitioner has titled this as a Final Order but it has been treated as a Recommended Order. The Hearing Officer does not have Final Order authority in this case.

APPENDIX TO RECOMMENDED ORDER 1/

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case.

Rulings on Proposed Finding of Fact Submitted by the Petitioner

1. - 2. Adopted in substance as modified in the Recommended Order in Findings of Fact 2 and 3, respectively.

1. Adopted in substance as modified in the Recommended Order in Findings of Fact 5, 17, 18 and 19.

   
   

2. Adopted in substance as modified in the Recommended Order in Findings of Fact 6 and 20.

   
   

3. Adopted in substance as modified in the Recommended Order in Findings of Fact 11 and 21.

   
   

4. Adopted in substance as modified in the Recommended Order in Findings of Fact 21 and 22, and 23.

5. The first sentence is neither material nor relevant to this proceeding. The second sentence is adopted or modified in the Recommended Order in Finding of Fact 33.

   
   

6. More of a Conclusion of Law or argument than a Finding of Fact.

   
   

7. Neither material nor relevant to this proceeding.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed finding(s) of fact: 1(1); 2(2); 3-4(3); 5-15(4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15, respectively); 16(15 and 17); 17-23(17, 18, 19, 20, 21, 22 and 23, respectively); 26-28(33, 24 and 24, respectively); 32-41(25, 25, 27, 28, 28, 28, 29, 35 and 41, respectively); 42(28 and 30); 43-48(32, 32, 31, 34, 34 and 34, respectively).

   
   

2. Proposed findings of fact 24 and 25 are covered in the Preliminary Statement; otherwise neither material nor relevant to this proceeding.

   
   

3. Proposed findings of fact 29, 30 and 31 are considered to be more of a conclusion of law or legal argument than a finding of fact.

COPIES FURNISHED:

David S. Maglich, Esquire Ferguson, Skipper, et. al

P.O. Box 3018 Sarasota, FL 34230

Dana M. Wiehle, Esquire Department of Natural Resources 3900 Commonwealth Blvd.

M.S. 35

Tallahassee, FL 32399

Virginia Wetherell, Executive Director Department of Natural Resources

3900 Commonwealth Blvd.

M.S. #10

Tallahassee, FL 32399-3000

Ken Plante, General Counsel Department of Natural Resources 3900 Commonwealth Blvd.

M.S. #10

Tallahassee, FL 32399-3000

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.

Docket for Case No: 89-003109

Orders for Case No: 89-003109