STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAIL L. CRIM AND JOE E. CRIM, )

MARY EVELYN WOOD, AND JAMES L. )

DOUGLAS AND DORIS DOUGLAS, )

)

Petitioners, )

)

v. ) CASE NO. 90-4992

) STATE OF FLORIDA, DEPARTMENT OF ) NATURAL RESOURCES, AND JOHN WIGGINS, )

)

Respondents. )

)

RECOMMENDED ORDER

Notice was provided and on December 7, 1990, a formal hearing was held in this case. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. The location of the hearing was Fernandina Beach, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioners: Granville C. Burgess, Esquire

301 1/2 Centre Street Post Office Box 1492

Fernandina Beach, Florida 32034

For Respondent Department of

Natural Resources: Brian F. McGrail, Esquire

Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399

For Respondent

Wiggins: T. R. Hainline, Jr., Esquire Andrew Keith Daw, Esquire

Rogers, Towers, Bailey, Jones & Gay 1300 Gulf Life Drive

Jacksonville, Florida 32207 STATEMENT OF ISSUES

The issues concern the question of entitlement of Respondent Wiggins to the issuance of a coastal construction control line (CCCL) permit. See Section 161.053, Florida Statutes and Chapter 16B-33, Florida Administrative Code.

PRELIMINARY STATEMENT

On June 11, 1990, the State of Florida, Department of Natural Resources (DNR) issued a final order granting Wiggins CCCL permit no. NA-148 M1. This is related to DNR's intent to take final agency action approving Wiggins' modified permit application. Given the opportunity to oppose the intent to grant a permit Petitioners filed a petition for formal proceedings dated June 26, 1990. That petition was met by a motion for more definite statement filed by DNR. That motion was dated August 9, 1990.

One day before the motion for more definite statement was dispatched DNR requested the Division of Administrative Hearings to assign a Hearing Officer to conduct this hearing as a formal hearing pursuant to Section 120.57(1), Florida Statutes. The hearing was noticed for December 7, 1990 and held on that date.

In what constitutes a response to the motion for more definite statement, Petitioners upon obtaining counsel, filed an amended petition for formal proceedings dated October 4, 1990. Respondents jointly moved to strike portions of that amended petition on October 24, 1990. Oral argument was heard on that motion on November 16, 1990 via telephone conference call and an order entered on November 19, 1990 granting in part.

Wiggins moved to compel answers to interrogatories propounded to Petitioners and to amend a prehearing stipulation which had been entered by the parties on instructions of the Hearing Officer. Oral argument was heard on those two motions on November 30, 1990 through a telephone conference. A decision was reached during the course of that conference and memorialized by the order of December 14, 1990.

In addition to the prehearing stipulation, which is being submitted with this Recommended Order, an amendment to that stipulation was presented at hearing as "V. Amended Facts". That amendment is also presented with the Recommended Order.

At the hearing DNR presented the witness Robert M. Brantley, Jr., who was accepted as an expert in coastal construction engineering. DNR's Composite Exhibit No. 1 was admitted as evidence. It is the permit file. Wiggins presented the witness William T. Buckingham, P.E., Olsen & Associates, Inc. He was received as an expert in coastal engineering. Wiggins' exhibits numbers 1-

36 and 39 were admitted as evidence. Petitioners presented the testimony of Mary Evelyn Wood, Doris Douglas and Joe E. Crim together with Exhibit No. 2 and Exhibits 13A-13L. Those latter exhibits are photographs.

The transcript of proceedings was filed with the Division of Administrative Hearings on January 4, 1991. On January 14, 1991 counsel for Petitioners and Wiggins filed proposed recommended orders. On January 16, 1991 counsel for DNR filed a proposed recommended order. Those proposed recommended orders have been considered. The suggested fact finding in those proposals is commented on in an appendix to this recommended order. Consideration has also been made of the transcript, exhibits, prehearing stipulation and its amendment.

FINDINGS OF FACT

1. DNR is called upon to make a decision concerning the possible issuance of CCCL permits in coastal areas described in Section 161.053, Florida Statutes. The applicant Wiggins has sought such a permit.

2. This application is opposed by Petitioners.

   
   

3. Mary Evelyn Wood owns property at 267 South Fletcher Avenue, Fernandina Beach, Nassau County, Florida, which is about a five minute walk from the subject property, according to Ms. Wood. The Wiggins property is at 664 South Fletcher Avenue in the same town and county.

   
   

4. The Douglas property is at 649 South Fletcher Avenue. It is located adjacent to the Wiggins property across Fletcher Avenue on the west side and one lot north.

   
   

5. The Crim property is at 663 South Fletcher Avenue, directly across that road west of the Wiggins property.

   
   

6. The Douglas and Crim properties are also in Fernandina Beach, Nassau County, Florida.

   
   

7. Petitioners have expressed their opposition to the grant of a CCCL permit based upon the belief that with construction at the Wiggins property the dune system which fronts the Wiggins property will be adversely impacted and place Petitioners' properties at risk. In this connection Petitioners are concerned about shoreline erosion and flooding of upland properties to include their own. Their attitude is prompted by the history of problems of erosion of the beach in the immediate vicinity where Wiggins and Petitioners have their property, especially related to weather events and maintenance dredging in the St. Mary's River Inlet to facilitate activities at Kings Bay Naval Base. Attempts have been made to mitigate the efforts of that dredging. Petitioners are further disturbed by problems which they have seen with beach front homes referred to as the Caples and Manley properties. The circumstances in those latter two properties are described in greater detail subsequently. Finally, Petitioners are concerned about the cumulative impact associated with the Wiggins project and similar projects which may be forthcoming along the beach front in that vicinity.

   
   

8. On March 30, 1989, DNR received an application from Wiggins for a CCCL permit to construct a residential dwelling seaward of the Nassau County Coastal Construction Control Line. DNR determined that Wiggins' original application was incomplete and requested further information from Wiggins by letter dated May 1, 1989. Wiggins submitted all necessary supplementary documents. DNR issued a notice of completeness dated July 10, 1989, notifying Wiggins that this original application had been determined complete as of June 30, 1989.

   
   

9. After determining that Wiggins' original application was complete, DNR engineer Robert M. Brantley, Jr. reviewed the application to analyze it for compliance with statutory and rule requirements. In connection with this review, Brantley prepared a memorandum to his supervisor regarding his recommendation for DNR action on the original application.

   
   

10. Out of concern that the project proposed by the original application would not minimize adverse impacts on the beach and dune system after the site, Brantley recommended that the structure be moved twenty feet landward, thus requiring a local zoning variance from City of Fernandina Beach right-of-way requirements.

11. On September 21, 1989, DNR issued a final order, "permit NA-148" granting Wiggins' original application as modified pursuant to Brantley's recommendation to require siting of the dwelling structure twenty feet landward. This constituted proposed agency action on the permit request.

    
    

12. Petitioners were determined to have failed to allege injury to their substantial interests sufficient to grant them standing to challenge proposed permit NA-148, and their petition was dismissed.

    
    

13. Wiggins was denied the local zoning variance from the twenty foot right-of-way setback contemplated by proposed permit NA-148. Petitioners appeared at the variance hearing and opposed the variance.

    
    

14. After denial of the zoning variance required by proposed permit NA- 148, Wiggins contacted Brantley to ask for "reconsideration" of permit NA-148. Wiggins' request was treated by DNR as an application for modification of proposed permit NA-148. After review the application as modified was determined to be complete and a letter to that effect was issued by DNR on May 10, 1990.

    
    

15. The modified application sited the dwelling in the same location as the original application, but with several improvements to satisfy DNR. This application as modified deleted the condition of proposed permit NA-148 allowing any excavation, as clarified at hearing; deleted the condition of proposed permit NA-148 allowing understructure parking (including the deletion of a condition allowing a concrete slab or impermeable surface), and committed the permittee to maintain the frontal dune and encumber the lot with a covenant requiring the present and future owners of the project site to maintain the dune integrity. Additionally, the seaward deck of the project structure was reduced from eight feet to six feet and the direction of stairs on the exterior of the structure was adjusted.

    
    

16. On June 11, 1990, DNR issued a final order "Permit NA-148 M1" with the aforementioned changes incorporated. This constituted proposed agency action about which the dispute has been joined.

    
    

17. The project site, described as lot 5, block 8, Ocean City subdivision, Fernandina Beach, Nassau County, Florida (WE 1, 3) is an oceanfront lot crossed by a well vegetated, single ridge frontal dune. The crest of the dune is located approximately 127 feet seaward of the Nassau County CCCL. It is approximately three to four feet above the existing grade with an elevation of

    14 feet NGVD. The project site is located on the northern one-third of Amelia Island.

    
    

18. As alluded to before, the northern one-third of Amelia Island has experienced erosion since the turn of the century when the St. Marys River entrance channel was stabilized by jetties. Such erosion continues and will continue as long as the St. Marys River channel jetties interrupt the natural southern transport of sand and routine maintenance dredging is conducted.

    
    

19. Over the last twenty years, in acknowledgment of the erosion resulting from the increased frequency of maintenance dredging of the St. Marys River navigational channel, the project site has benefited from federally-funded beach renourishment projects which have deposited beach-quality spoil on two or three occasions. Material from the most recent renourishment project is still in the area of the project site.

20. A granite revetment was built along the shoreline on the property following the destruction brought by Hurricane Dora in 1964. Further improvements to the revetment were made in the mid-1970s.

    
    

21. The revetment protects the uplands and has acted like a sand fence to catch sand on its landward side and promote the buildup of the dune on that side. Since at least 1979, the dune ridge which parallels the property frontage has built up behind the rock revetment line. Currently, the revetment is covered by sand. The revetment would stabilize the shoreline in the event of major shore erosion.

    
    

22. Deposition and accumulation of beach material on the seaward side of the revetment has occurred on this site as well, due to the renourishment project. Such accumulation improves the protection of the revetment system in that the accumulated sand acts as a sacrificial buffer to erosion. If that buffer is removed, the revetment then offers its protection against erosion.

    
    

23. The revetment is located in approximately the same position as an established erosion control line. An established line of construction, including projects permitted by DNR has occurred landward of the erosion control line. As proposed, permit NA-148 M1 would site the project dwelling structure landward of the erosion control line and the permitted line of construction.

    
    

24. The single ridge dune on the project site provides protection for upland property from flooding attributable to wave runup during astronomical high tides and storms called northeasters.

    
    

25. The next structure north of the project site is a single family dwelling located 210 feet from the project and constructed pursuant to CCCL permit number NA-32. This is the Caples house.

    
    

26. The next structure south of the project site is a single family dwelling located 300 feet from the project site and constructed pursuant to CCCL permit number NA-28, the Manley house.

    
    

27. No dune crest or ridge or significant topographic feature exists under either the Caples house or the Manley house. The sand forming such crest, ridge, or feature has been removed. The seaward pilings of the Caples and Manley houses had been placed in the frontal dune. Erosion in the vicinity of the Caples and Manley houses has affected adjacent properties.

    
    

28. Two lots north of the Caples house, no topographic feature or dune crest exists due to the presence of a parking lot servicing a private business.

    
    

29. Approximately one lot south of the project site, midway between the project site and the Manley house, no topographic feature or dune crest exists due to the presence of a street end or public parking area.

    
    

30. The northern part of Amelia Island is subject to occasional flooding due to the previously described astronomical high tides or northeasters.

    
    

31. The properties owned by Petitioners Crim and Douglas have been subjected to upland flooding by ocean water which probably entered through lower elevations including through the dune breach created by the parking lot north of the Caples house, through the dune breach at the street end of parking area between the project site and the Manley house, or thorough the dune breach beneath the Caples house. Such flooding may occur with every northeaster.

32. The Caples house and the Manley house were permitted by DNR prior to legislative authorization for the requirement of restrictive covenants in connection with CCCL permitting. The permits for the Caples and Manley houses contained no provision requiring the owner of such properties to maintain the dune on those sites.

    
    

33. As each of the Respondents' experts testified at hearing, construction pursuant to proposed permit NA-148 M1 will not make Petitioners' property more susceptible to flooding, tidal flow and windstorm damage, because the project site will be encumbered with a covenant requiring the property owner to maintain the elevation and contours of the frontal dune. The Petitioners proffered no expert testimony on this issue to the contrary. Respondents' experts opinions are accepted.

    
    

34. The imposition on an oceanfront parcel of a covenant which requires that dune contours be maintained, such as the one required by Condition 11 of proposed permit NA-148 M1, provides owners of property upland of such parcel with a greater level of protection than they have presently in the absence of any covenant or requirement placing such an obligation upon the owner of the project site.

    
    

35. The seaward tow of the dune on the project site is approximately 145 feet seaward of the control line.

    
    

36. The beach in this area is located between the seaward toe of the dune and the mean high water line. Such area is sometimes referred to as the public right-of-way on the beach.

    
    

37. As each of the Respondents' experts testified at hearing, and as accepted, the proposed structure does not extend beyond the seaward toe of the dune and thus does not infringe on the area between the seaward toe of the dune and the mean high water line. The Petitioners proffered no expert testimony on this issue to the contrary.

    
    

38. The impacts on a beach and dune system associated with a dwelling structure may occur from four types of events: construction, windblown sand and recharge, localized erosion from a high frequency storm event, and erosion in a design storm event.

    
    

39. During construction of the project dwelling structure, installation of a pile foundation into the dune would result in the disturbance of the dune and vegetation on the site, including vegetation which stabilizes the dune where the pilings are placed and under the structure itself. The seaward pilings of the dwelling structure permitted by NA-148 M1 would be located approximately 128 feet seaward of the CCCL and thus will be located in the crest of the dune ridge which traverses the project site. This is a most disadvantageous placement. However, it will not be necessary to take out a section of the dune in the installation of the piles. Impacts to vegetation on the seaward side of the dune should be minimal in front of the structure and non existent in other parts of the dune located at the Wiggins parcel.

    
    

40. Proposed permit NA-148 M1 contains conditions which require protection of the site and adjoining properties during construction, including the requirement for a preconstruction conference between a representative of the permittee and DNR.

41. Construction fencing or sand fences are generally required by DNR pursuant to such a conference. However, a condition of proposed permit NA-148 which required a construction fence on the seaward side of the structure was made obsolete by and deleted in proposed permit NA-148 M1. The condition required a construction fence on the seaward side of the permitted structure to protect the dune. Under proposed permit NA-148, the structure would have been located landward of the dune. Proposed permit NA-148 M1 sites the structure on top of the dune negating the utility of the sand fence. The department will monitor and exercise supervisory authority over the project during construction.

    
    

42. Upon completion of construction, proposed permit NA-148 M1 contemplates that the dune system on the project site be returned to preconstruction condition with the exception of vegetation where the piles were placed and under the structure.

    
    

43. A structure located in a beach or dune system may affect the beach or dune system by affecting wind currents across the property. The dune system is recharged by windblown sand and the proximity of the structure to the dune may tend to have some adverse effect on that process. However, such a structure may also act as a "sand fence" and allow windblown sand to accumulate beneath it. Whatever the outcome with windblown movement of sand, the applicant must maintain the integrity of the dune in furtherance of the covenant.

    
    

44. The presence of a structure in a beach or dune system may have localized impacts on the beach and dune system during a storm event. A pile foundation structure would increase scour and erosion about its pilings and have an impact equal to approximately twice the diameter of the pile. As example a 12" pile would cause approximately two feet of erosion. The pilings here are 10" diameter piles. In effect such "washtub" erosion reaches an equilibrium point at which it does not continue to get wider or deeper and can fill back in under varying seasonal conditions.

    
    

45. A structure in the beach or dune system would have an impact on the beach and dune system during a design or major storm event. The design storm event is the 100 year storm event. In such a storm event, the most impactive type of structure is one with a rigid monolithic slab. An example of such a structure is a slab-on-grade dwelling structure with spread footer foundations. The Wiggins structure, a pile foundation dwelling, is designed to minimize impacts in the major storm event.

    
    

46. The principal impacts of the structure proposed through the modified application related to the beach and dune system would be the impact on day-to- day recharge of the dune system by windblown sand and possible inhibition of dune reformation after an event which eroded the entire dune line.

    
    

47. Condition 11 of proposed permit NA-148 addresses those impacts, namely it calls for promoting the integrity of the dune and the maintenance of the contours of the dune whatever the contingency. That is to say, Condition 11 requires Wiggins and, by restrictive covenant, future owners of the project site, to maintain the topography of the dune and to restore the dune to preconstruction conditions if it is damaged by or destroyed by wind, erosion, or during a storm event.

    
    

48. Condition 11 also requires that salt-resistant vegetation indigenous to Florida's beaches and dunes be maintained in perpetuity and restored to preconstruction conditions if damaged by or destroyed by wind, erosion, or during a storm event, except where pilings are placed and under the dwelling.

49. Revegetation of the dunes is a very viable option. Typically, the plants for revegetation are sea oats, and they are very hardy. If planted and given water for about the first three months thereafter, they will grow right along.

    
    

50. Sea oats propagate through their roots. Their root systems contribute to the stability of the dune. The vegetative cover of the dune traps sand, assists in the accumulation of sand blown across the beach into dunes, and thus helps to maintain the dune topography.

    
    

51. Again, Condition 11 does not require the owner of the project site to maintain vegetation underneath the structure on the landward face of the dune. The condition does require the dune itself to be maintained beneath the structure. Vegetation on the seaward side or face of the dune and in the side yards and areas of the dune not covered by the structure must be maintained. Vegetation on the seaward side of the dune plays the most important or critical part in the accumulation of the sand and maintenance of dune topography.

    
    

52. The performance of Condition 11, both in maintenance of vegetation and dune contours where contemplated is feasible. Replanted vegetation should be used first to lend dune stability and integrity and should be successful. In the event that the method does not adequately provide the necessary dune aggregate or webbing to hold the dune together, artificial means such as sand fencing, geosynthetic geotextiles, webbing materials, or a slurry of biodegradable composite jell, may be used to provide such stability.

    
    

53. Since 1985, DNR has used a dune maintenance condition in connection with other CCCL permits, and has had success with that policy.

    
    

54. DNR has a mechanism in place to enforce Condition 11. A project site, such as permit NA-148 M1, encumbered by a covenant to maintain dune topography, such as Condition 11, will be entered in the DNR computer system as part of a master report of similar such covenanted properties. This report would have a "check date" column. That column might require that a site be reviewed every six months, for example. At the six month anniversary, the field inspector for the project area would get a notice instructing him to check the compliance of the site. He would do so and file a report with the DNR engineer responsible for the project. The engineer would file the report and set the next compliance check date. The occurrence of a major storm event in a project area would cause the Department to perform post-storm compliance survey on all projects in the affected areas.

    
    

55. As each of the Respondents' experts established at hearing, proposed permit NA-148 M1 adequately address the concerns of DNR as contained in Brantley's analysis of the project and minimizes adverse impacts to the beach and dune system. The Petitioners proffered no expert testimony on this issue to the contrary.

    
    

56. The primary concern relating to the cumulative effect of the project is also related to the project structure's impact on the frontal dune, namely the inhibition of dune recharge from windblown sand and its rebound after a storm event.

57. As each of the Respondents' experts established at hearing, the conditions of proposed permit NA-148 M1 reduce or eliminate concerns regarding the cumulative effects of similar projects. With Condition 11, being universally required in the future the cumulative effect of projects similar to the project permitted by proposed permit NA-148 M1 would be tolerable. The cumulative impacts of projects similar to the Wiggins project, if subject to the same permit conditions, will not threaten the beach and dune system and may in fact provide additional protection to the upland structures because of requirements to restore and maintain existing conditions as necessary. The Petitioners proffered no expert testimony on this issue to the contrary.

    
    

58. As the Respondents' expert witnesses established at hearing the project as modified is in compliance with all requirements of Chapter 16B-33, Florida Administrative Code, and Chapter 161, Florida Statutes. The Petitioners proffered no expert testimony on this issue at hearing to the contrary.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

60. As the applicant, Wiggins bears the burden of demonstrating entitlement to the CCCL permit he has sought. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In a 120.57(1) proceeding, this burden must be borne by a permit applicant in a "preliminary presentation" of evidence which "depend[s], to a large extent, on the nature of the objections raised by the petitioners requesting a hearing." Id. at 788. If a permit applicant makes a preliminary showing of entitlement, the permit must be issued unless the petitioners, who in this instance have proven their standing to challenge the permit issuance, present "contrary evidence of equivalent quality" and prove the truth of the facts alleged in their petitions. Id. at 789 (emphasis added). Assuming a preliminary showing of entitlement, the petitioners cannot carry their burden of presenting contrary evidence by a presentation of speculation or of what "might" occur. Chipola Basin Protective Group, Inc. v. Florida Chapter Sierra Club, 11 F.A.L.R. 467, 480-81 (Fla. Dept. of Environmental Regulation 1988).

    
    

61. The evidence presented by the Respondents made out the required prima facie showing of Wiggins' entitlement to the grant of the permit at issue, having presented evidence of compliance by the project with all relevant provisions of Chapter 16B-33, Florida Administrative Code, and Chapter 161, Florida Statutes. Having made such showing, the burden of going forward shifted to Petitioners to prove the allegations of their Amended Petition. Petitioners presented no expert testimony or otherwise regarding this project to prove the adverse impacts claimed. Petitioners' evidence regarding the impacts of the project in question consisted of speculation regarding dissimilar projects.

    
    

62. In particular, taking into account the conditions called for in proposed permit NA-148 M1, the impacts on the beach dune system at the property site are tolerable or within the acceptable limits envisioned by Section 161.053, Florida Statutes, and Rule 16B-33.07, Florida Administrative Code. The project under conditions as contemplated by the proposed permit does not impede public access or what is referred to as lateral access to the beach at the front of the applicant's property. The cumulative impact of this project is not adverse. The project is within the existing line of construction.

63. The project is consistent with the thirty year erosion projection, in that it is not seaward of that line.

    
    

64. The project takes into account the policy of DNR concerning protection of sea turtles as described in Section 161.053(5)(c), Florida Statutes, and Rule 16B-33.005(9), Florida Administrative Code.

    
    

65. Section 161.55, Florida Statutes, by its language does not prohibit the grant of a CCCL permit at issue.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, recommended that proposed permit NA-148 M1 be issued by DNR to Wiggins subject to all its conditions.

RECOMMENDED this 18th day of February, 1991, in Tallahassee, 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 18th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4992

The following discussion is given concerning the fact proposals of the parties:

Petitioners' Facts

Paragraphs 1 and 2 are subordinate to facts found.

Paragraph 3 is not necessary to the resolution of the dispute. Paragraph 4 is subordinate to facts found.

Paragraph 5 is not necessary to the resolution of the dispute.

Paragraphs 6 through 8 and the first sentence of Paragraph 9 are subordinate to facts found. The remainder of Paragraph 9 is contrary to facts found.

The first sentence of Paragraph 10 is subordinate to facts found. Concerning the second sentence, while it is recognized that the placement of the piles in the dune crest is problematic, Condition 11 to the permit provides necessary remedial response.

Paragraph 11 is subordinate to facts found as is the first sentence of Paragraph

12. The remaining sentences in Paragraph 12 are addressed by Condition 11. Paragraphs 13 through 19 are subordinate to facts found.

Paragraphs 20 and 21 are contrary to facts found.

Paragraph 22 is not necessary to the resolution of the dispute.

Concerning Paragraph 23, whatever erosion occurs Condition 11 will require the applicant to rectify the situation.

As to Paragraph 24, although it has not been necessary to test the nature of the maintenance covenant act after a storm event, nothing suggests that it would not be a viable requirement following such an eventuality.

Paragraph 25 is subordinate to facts found. Paragraph 26 is contrary to facts found.

DNR's Facts

Paragraph 1 through 8 are subordinate to facts found. Paragraph 9 and 10 are discussions in law.

Paragraphs 11 through 15 are subordinate to facts found. Paragraph 16 is not necessary to the resolution of the dispute. Paragraphs 17 through 30 are subordinate to facts found.

The first sentence to Paragraph 31 is contrary to the impression of the importance of the dune in question. The second sentence in Paragraph 31 is subordinate to facts found.

Wiggins' Facts

Paragraphs 1-54 are subordinate to facts found.

COPIES FURNISHED:

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

Mail Station #10

Tallahassee, FL 32399-3000

Granville C. Burgess, Esquire

301 1/2 Centre Street Post Office Box 1492

Fernandina Beach, FL 32034

Brian F. McGrail, Esquire Department of Natural Resources 3900 Commonwealth Boulevard

Mail Station #10

Tallahassee, FL 32399-3000

T. R. Hainline, Jr., Esquire Andrew Keith Daw, Esquire

Rogers, Towers, Bailey, Jones & Gay 1300 Gulf Life Drive

Jacksonville, FL 32207

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: 90-004992

Orders for Case No: 90-004992