STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROY B. and PATRICIA B. OLSEN, )

)

Petitioners, )

)

vs. ) CASE NO. 91-4558

) DEPARTMENT OF NATURAL RESOURCES, ) and CITY OF VENICE, FLORIDA, )

)

Respondents, )

and )

) ROGER D. and IRENE F. FRALEY, )

and HOWARD T. and )

EVELYN V. BARBIG, )

)

Intervenors, )

) NINA B. HOWARD, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4559

) DEPARTMENT OF NATURAL RESOURCES, ) and CITY OF VENICE, FLORIDA, )

)

Respondents, )

and )

) ROGER D. and IRENE F. FRALEY, )

and HOWARD T. and )

EVELYN V. BARBIG, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on November 7, 1991 in Venice, Florida.

APPEARANCES

For Petitioners: Chancy Howard, Qualified

Olsen and Howard Representative 721 Ocala Street

Venice, Florida 34285

For Respondent, Brian F. McGrail, Esquire Department of 3900 Commonwealth Boulevard Natural Resources: Tallahassee, Florida 32399-3000

For Respondent, Robert C. Anderson, Esquire City of Venice: Post Office Box 1576

Venice, Florida 34284

For Intervenors, Robert S. Moore, Esquire Fraley: 227 Nokamis Avenue South

Venice, Florida 34285

For Intervenors, Howard T. and Evelyn V. Barbig Barbig: 5120 San Pedro Court

Milton, Florida 32570 STATEMENT OF THE ISSUE

Whether Coastal Construction Control Line (CCCL) permit number ST-820 should be issued to the City of Venice, Florida under the facts and circumstances of this case.

PRELIMINARY STATEMENT

On March 26, 1991 the City of Venice, Florida (Venice) applied to the Respondent, Department of Natural Resources (Department) for a CCCL permit to construct a wooden retaining wall seaward of the coastal construction control line and a shell access road landward of the retaining wall from 100 feet south of Granada Avenue to 50 feet north of Ocala Street on the right-of-way of The Esplanade in Venice, Florida.

On April 26, 1991 the Department issued a Final Order administratively approving CCCL permit number ST-820 for the construction applied for by Venice. On April 26, 1991 the Department issued a Notice to Proceed Withheld, which gave notice to those persons whose substantial interest were affected by the issuance of the CCCL permit of their right to request a formal administrative hearing.

Ray B. and Patricia Olsen objected to the issuance of the CCCL permit and petitioned for a formal hearing on May 14, 1991. Nina B. Howard also objected to the issuance of the CCCL permit and petitioned for a formal hearing on May 16, 1991. The matters were transferred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct of a formal hearing. The two cases were consolidated for hearing and the matter scheduled for hearing and held on November 7, 1991 in Venice, Florida.

Prior to the hearing, Roger D. and Irene F. Fraley, Howard T. and Evelyn V. Barbig and Doris D. Herron petitioned for leave to intervene in the matter.

Roger D. and Irene F. Fraley and Howard T. and Evelyn V. Barbig were granted leave to intervene. Doris D. Herron's petition to intervene was denied.

In accordance with Rule 22I-6.012, Florida Administrative Code, Venice was notified that as the applicant for the CCCL permit its substantial interest could be affected by these proceedings and was given an opportunity to be joined as a party. Upon the hearing being convened, Venice moved to be joined as a party, and without objection was granted party status as one of the Respondents.

At the hearing, the Department presented the testimony of Ong-In Shin and Steve West. Department's exhibits 1 through 8 were admitted as evidence.

Venice presented the testimony of Lawrence A. Heath, Jr. and its exhibits 1 1/ and 4 were admitted as evidence. Petitioners Olsen and Howard presented the testimony of Ted Yeatts, Doris Herron, Nina Howard, Patricia Olsen and Ong-In Shin but presented no documentary evidence. Roger Fraley testified on behalf of the Intervenors, Roger D. Fraley and Irene F. Fraley but presented no documentary evidence. The Intervenors, Howard T. and Evelyn Barbig testified on their own behalf but presented no documentary evidence.

On December 18, 1991 the Olsens advised the undersigned that they would be filing their own proposed findings of fact and conclusions of law, and that they were relieving Chancy Howard of any further responsibility to them in this case. On December 18, 1991 the Olsens filed a Notice of Appearance on their behalf with the Division of Administrative Hearings.

A transcript of the proceeding was filed with the Division of Administrative Hearings on November 25, 1991. Only the Department, the Olsens and the Fraleys filed Proposed Recommended Orders. A ruling on each proposed finding of fact submitted by the Department, the Olsens and the Fraleys 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. On March 26, 1991 Venice applied to the Department for a CCCL permit to construct a 475 foot wooden retaining wall seaward of the coastal construction control line and to place a shell road immediately adjacent to, and landward of, the retaining wall from approximately 100 feet south of Granada Avenue to approximately 50 feet south of Ocala Street on Venice's right-of-way of The Esplanade in Venice, Florida.

   
   

2. The Petitioners Roy B. and Patricia B. Olsen are residents of Venice, Florida and reside at 304 Ocala Street. They own Lot 1, The Esplanade, which is immediately east and south of the southern terminus of the proposed retaining wall.

   
   

3. Petitioner, Nina Howard is a resident of Venice, Florida and resides at 721 Ocala Street. Ms. Howard's residence is located to the south and across Ocala Street from the site of the proposed retaining wall.

   
   

4. Intervenors, Roger and Irene Fraley are residents of Venice, Florida and reside at 221 The Esplanade South, which is immediately landward (east) of the site of the proposed retaining wall.

   
   

5. Intervenors, Howard and Evelyn Barbig are residents of Milton, Florida but are owners of lot 4, The Esplanade South, located north of the Fraleys' property and immediately landward (east) of the site of the proposed retaining wall.

   
   

6. The Petitioners oppose the granting of the CCCL permit. The Petitioners have expressed their opposition to the granting of the CCCL permit based upon their belief that the construction of the proposed retaining wall will have adverse impacts to the beach dune areas and to the adjacent properties. Specifically, it is their belief that the construction of the proposed retaining wall will accelerate the erosion of the beach dune areas and the adjacent properties.

   
   

7. The Petitioners disagree with the conclusion reached by the Department in the final order that, "the activities indicated in the project description are of such a nature that they will result in no significant adverse impacts to the beach dune areas or to the adjacent properties."

   
   

8. Intervenors, Fraley and Barbig are in favor of the issuance of the CCCL permit because it will prevent seasonal erosion which results in exposure of, and damage to, the sewer line along The Esplanade, and will provide public access over the shell road within the right-of-way of The Esplanade for those properties between Granada Avenue and Ocala Street that do not have public access from time to time due to the seasonal erosion.

   
   

9. On April 17, 1991 the Department advised Venice that the CCCL permit application was determined to be incomplete, and advised Venice of those things needed to make the application complete. Subsequent to this letter, the Department determined that, although the application was not an emergency, it did deserve "fast tracking", and assisted Venice in bringing the application to a "complete" status.

   
   

10. On April 25, 1991 the Department issued a Final Order administratively approving CCCL permit number ST-820 for the construction of a wooden retaining wall and shell access road as described in Venice's application.

    
    

11. On April 26, 1991 the Department issued a Notice to Proceed Withheld to Venice, which advised Venice not commence construction of the project authorized by the permit until certain permit conditions had been met. This notice also gave notice to those whose substantial interests would be affected by the proposed project of their right to a formal hearing.

    
    

12. An engineering assessment was made for this project, and although not a formal written engineering assessment, the engineering assessment did consider all conditions of adverse impacts. In making this assessment, the Department considered and reviewed available aerial photographs, photographs taken of the area of the proposed project site and erosion tables concerning the area. A

    formal written engineering assessment is not required by statute, rule or Department policy.

    
    

13. This assessment also indicated that there are severe impacts due to winter storm events which contribute to the seasonal profile changes.

    
    

14. The seasonal beach profile is depicted by the build up of the beach (sand) during the summer months and the removal (erosion) of beach (sand) during the winter months. However, due to an inlet, a major rock-out cropping and the rock grain structures located in the vicinity of the proposed site, there is a limitation on the natural movement of sand along the coast which prevents natural renourishment and results in severe erosion in the area of the proposed site during the winter months.

    
    

15. This erosion during the winter months causes the sewer pipes along The Esplanade to be exposed and sometimes broken, and prevents access over the

    right-of-way of The Esplanade to certain properties located along The Esplanade between Granada Avenue and Ocala Street.

    
    

16. The wooden retaining wall is designed to retain sand just landward of the wall and allow a shell access road to be placed on the right-of-way of The Esplanade. The wooden retaining wall will be constructed as follows: (a) 8" x 20' wooden piling will be placed on 6' center and driven to an approximate depth of -14.00 (NGVD); (b) 2" x 8" planking will be attached to the landward side of the piling from the top of the piling (+7.0 NGVD) to a depth of appropriate 7 feet (0.00 NGVD); (c) with a filter "x" cloth covering the planking on the landward side. At the time of the application, the existing beach was +5.0 (NGVD) which would leave approximately 2 feet of the retaining wall exposed on the seaward side.

    
    

17. The purpose of the retaining wall is to protect the shoreline in the immediate vicinity of The Esplanade and thereby protect the sewer line and access road which are landward of the seaward (west) right-of-way line of The Esplanade.

    
    

18. The proposed wooden retaining wall is to be located as far landward as possible, and will be the minimum size and configuration to protect the sewer line and the shell access road along The Esplanade right-of-way.

    
    

19. The retaining wall is designed to be temporary in nature in that its design will not allow it to survive under a major storm event. In that regard, the retaining wall comes within the definition of a minor structure as defined by rule and does not require a formal written review.

    
    

20. The access road will enable Venice to establish a public road on public right-of-way for ordinary and emergency utilization by the residents and Venice.

    
    

21. Previous attempts by Venice to protect the sewer line by "shoring up" the area with sand bags have proven unsuccessful. A wooden retaining such as the one proposed would be the next logical step to prevent the exposure and damage to the sewer line and still be consistent with the coastal armoring policy adopted by the Governor and Cabinet in December 1990.

    
    

22. Dr. Al Deveraux, Bureau Chief, Control Engineering, personally viewed the site prior to approval of the project and waived compliances with certain provisions of the application.

23. There is sufficient competent substantial evidence to establish that:

    
    

    1. erosion is occurring in the area of the proposed site without the presence of the proposed retaining wall;

       
       

    2. without the proposed retaining wall, Venice will be unable to prevent that erosion, particularly during the winter storm events, which will result in exposure and damage to the sewer line and lack of public access to certain properties located along The Esplanade between Granada Avenue and Ocala Street; and

       
       

    3. upon construction of the retaining wall, the beach dune area and the adjacent properties to the south of the proposed project will experience some increase in erosion above that presently occurring, but it will be minimal and will not have a significant impact on the area.

    
    

24. The application submitted by Venice was processed and approved in accordance with statutes, rules and Department policy.

    
    

25. There is sufficient competent substantial evidence to establish that granting CCCL permit number ST-820 and constructing the retaining wall and access road as set forth in Venice's application would be in the best public interest.

    
    

26. The Petitioners' expert witness on coastal engineering concluded that there would be substantial erosion of the beach

    dune area and adjacent properties south of the proposed retaining wall as a result of constructing the retaining wall. However, this conclusion was not supported by competent substantial evidence.

    
    

27. Special permit condition 1 requires Venice to provide the Department with a Sea Turtle Protection Plan approved by the Florida Marine Research Institute in St. Petersburg, Florida. This special condition takes into account the Department's policy for the protection of sea turtles as described in Rule 16B-33.005(9), Florida Administrative Code.

    
    

28. The project is consistent with the thirty-year erosion projection and is not located seaward of that line.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

30. As the applicant, Venice bears the burden of demonstrating entitlement to the CCCL permit it has sought. Florida Department of Transportation v.

    J.W.C. Co., Inc., 396 So.2d 778 (1 DCA Fla. 1981). In a Section 120.57(1), Florida Statutes, 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. 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).

    
    

31. The evidence presented by the Respondents made out the required prima facie showing of Venice's entitlement to the grant of the permit at issue. Respondents proved 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 petitions. The Petitioner failed to sustain their burden in that regard. The evidence presented by the Petitioner regarding the impacts of the project in question consisted of speculation and what "might" occur.

32. The impacts on the beach dune system and the adjacent properties to the south of the project site are within acceptable limits envisioned by Section 161.053, Florida Statutes, and Rule 16B-33.007, Florida Statutes.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, it is, accordingly recommended that the Department enter a Final Order issuing CCCL permit number ST-820 to the City of Venice, Florida subject to all the special conditions contained therein, and adding one other special condition requiring the City of Venice, Florida to monitor the beach dune system and adjacent properties south of the project site on a semi-annual basis for a period deemed necessary by the Department, and report any accelerated erosion that might occur in that area to the Department for review and action.

RECOMMENDED this 27th day of December, 1991, 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 27th day of December, 1991.

ENDNOTES

1/ The transcript identifies this exhibit as number 4 but the undersigned identified and admitted this exhibit as Venice's exhibit 1.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4558

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 Petitioners

The Olsens submitted in letter form with unnumbered paragraphs what basically recites certain witnesses' testimony

but states no findings of fact. However, see Findings of Fact 23 and 26 in regard to the testimony concerning erosion of the beach dune area and adjacent properties south of the project site. See Findings of Fact 17, 21, 23 and 26 in regard to testimony concerning sewer lines. See Findings of Fact 6 and 7 wherein Petitioners' objection to the permit is discussed.

Petitioner Howard did not submit any proposed findings of fact or conclusions of law.

Rulings on Proposed Findings of Fact Submitted by the Respondents

The City of Venice, Florida did not submit any proposed findings of fact or conclusions of law.

Respondent Department of Natural Resources

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed findings of fact: 1(1); 2(6); 3(2); 4(9); 5(4); 6(5); 7(6,7); 8(6); 9-10(8); 11(1); 12(9); 13(9,10); 14(11); 15(9); 16-17(1); 18(20); 19(12); 21-23(13,14); 24(16,17); 25-26(19); 27(18); 28(23); 29-30(21); 31(14); 32(21); 33(17); 34(24); 35(12); 36(9); 37(22); 38(17); and 39(9).

Rulings on Proposed Findings of Fact Submitted by the Intervenors

Intervenors Barbig did not submit any proposed findings of fact and conclusions of law.

Intervenors Fraley

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed findings of fact: 1-2(15); 3(21); 4(15); 5(21); 6-7(18); 8(23); 9(14,15); 10-11(15); 12(17); 13(16,17); 14(19); 15(21); 16(12,13,14,15); 17-18(24); 19(22); and 20(25).

COPIES FURNISHED:

Chancy Howard 721 Ocala Street

Venice, FL 34285

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

Tallahassee, FL 32399-3000

Robert C. Anderson, Esquire

P.O. Box 1576 Venice, FL 34284

Robert S. Moore, Esquire

227 Nokamis Avenue S. Venice, FL 34285

Howard T. and Evelyn V. Barbig 5120 San Pedro Court

Milton, FL 32570

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

Tallahassee, FL 32399-3000

Virginia Wetherell, Executive Director Department of Natural Resources

3900 Commonwealth Blvd.

Tallahassee, FL 32399-3000

Roy B. and Patricia B. Olsen

304 Ocala Street Venice, FL 34285

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: 91-004558

Orders for Case No: 91-004558