STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CAROLE C. POPE, )
)
Petitioner, )
)
vs. ) CASE NO. 93-4560
) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION and 5500 NORTH ) CORPORATION, )
)
Respondents. )
) PATRICIA A. AND EUGENE A )
WOJEWODA, )
)
Petitioners, )
)
vs. ) CASE NO. 93-4561
) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION and 5500 NORTH ) CORPORATION, )
)
Respondents. )
) HUGH W. AND CORA L. HARRIS, )
)
Petitioners, )
)
vs. ) CASE NO. 93-4562
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and 5500 NORTH ) CORPORATION, )
)
Respondents. )
) MR. AND MRS. HOWARD W. CRUSEY, )
)
Petitioners, )
)
vs. ) CASE NO. 93-4563
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and 5500 NORTH ) CORPORATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on January 11 and 12, 1994 in Cocoa, Florida. The following appearances were entered:
APPEARANCES
For Petitioners: Hugh and Cora Harris (pro se)
208 Young Avenue
Cocoa Beach, Florida 32931
Howard and Martha Crusey (pro se)
430 Johnson Avenue, Apartment #304 Cape Canaveral, Florida 32920
Carole Pope (pro se) 715 Rockledge Drive
Rockledge, Florida 32955
Patricia and Eugene Wojewoda (no appearance)
For Respondent: Dana M. Wiehle, Esquire
Assistant General Counsel
Department of Environmental Protection Twin Towers Building
2600 Blair Stone Road, Mail Station 35 Tallahassee, Florida 32399
Wilbur E. Brewton, Esquire Kelly Brewton Plante, Esquire Taylor, Brion, Buker & Greene
225 South Adams Street, Suite 250 Tallahassee, Florida 32301
STATEMENT OF THE ISSUES
Whether the Petitioners, and each of them, have standing to bring the instant action before the Division of Administrative Hearings.
Whether the 5500 North Corporation has meets the requirements set forth in Section 161.053, Florida Statutes, and Rule 16B-33, Florida Administrative Code, for obtaining a permit to construct a structure seaward to the coastal construction control line (CCCL).
PRELIMINARY STATEMENT
In 1992, Respondent 5500 North Corporation submitted an application for a coastal control line (CCCL) permit to build a structure seaward of the control line on its property in Cocoa Beach, Brevard County, Florida. Following compliance with the Department's request for additional information, the application was deemed complete, and on May 20, 1993, the Department issued a proposed final order granting the permit. Petitions challenging the issuance of the proposed permit were filled on June 12 and 14, 1993, respectively. The petitions were referred to the Division (DOAH) for formal hearing on August 12,
1993 and additional information was provided on August 17, 1993. Following various motions by the parties, the 5500 North Corporation was joined as a party respondent and the separate petitions were consolidated for hearing on November 1, 1993. Discovery ensued and this matter was set for hearing. Over objection of Respondent corporation, the hearing was continued at the request of Petitioners, for good cause shown. A joint Prehearing Statement was filed on December 17, 1993. A prehearing conference was held on December 21, 1993, over the objections of Petitioner Pope. Various motions were ruled upon, amendments to the Prehearing Statement was made by Petitioner Harris, and a Prehearing Order was entered following the conference. Immediately prior to the convening of the hearing, an emergency motion for continuance was denied. The formal hearing was held on January 11 and 12, 1994. Petitioners Wojewodas were unable to attend the hearing due to a death in the family and were permitted to submit a written statement, under oath, in lieu of live testimony. Respondents waived their right to cross-examine the Petitioners so long as the statements offered were within the scope of the stipulated issues. Therefore, Respondents' objections as to relevance has been preserved. Petitioners Wojewodas submitted a written statement on January 19, 1994. The transcript of the hearing was filed on January 19, 1994. Petitioners submitted a consolidated proposed recommended order on February 1, 1994, and corrections were filed on February 10, 1994. Respondent corporation submitted its proposals on January 31, 1994.
Respondent Department waived its right to file a proposed recommended order and agrees with the proposals submitted by the Respondent corporation. Each of the proposals have been given careful consideration and adopted in this order when supported by competent and relevant evidence.
My specific rulings on the parties' proposals are set forth in the Appendix attached hereto.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
The Department of Environmental Protection, f/k/a Department of Natural Resources, is the state agency charged with the responsibility of regulating coastal construction under Chapter 161, Florida Statutes.
5500 North Corporation (Respondent/Applicant) is the owner of the property located at 5600 North Atlantic Avenue, Cocoa Beach, Brevard County, Florida 32931.
5500 North Corporation submitted an application for a coastal construction control line (CCCL) permit to build on the vacant portion of its property, a seven (7) story building, along with required access drives and parking, as an addition to the Cocoa Beach Days Inn Hotel complex.
The site of the proposed Days Inn Tower fronts on the Atlantic Ocean and is located three (3) miles south of Port Canaveral, near DNR survey monument R-16.
The application and attached document were compiled and submitted to the Department of Environmental Protection by Plata Engineering, Inc., and consisted of the following documents:
Application to the Department for the proposed construction of the building, consisting of three pages, front and back, six pages total.
A legal description of the property, and a Warranty Deed for the property demonstrating ownership in 5500 North Corporation.
Reduced certified survey of the site,
showing control lines and other required information.
Reduced Site Plan prepared by Plata Engineering, Inc.
Section C - which is a section through the site plan, showing the dune configuration in relation to the proposed building and the construction control lines.
A depiction of a section through the
proposed building and some of its structural elements.
Full size drawing of the proposed site.
Turtle assessments form with attached lighting specifications of the manufacturer, and aerial of the site attached.
Structural Design Calculations.
Complete set of Building Plans, dealing with floor planning, and the structural elements of the calculations that were submitted with the structural calculations.
The application was deemed complete, and on May 20, 1993, the Department issued a proposed Final Order issuing Permit Number BE-760 for the proposed structure.
Standing of Petitioners
Petitioner, Carole Pope, resides in the City of Rockledge, Brevard County, Florida. She is the owner of Lot 11, Block 101 of the platted subdivision known as Avon-By-The Sea which is located in unincorporated Brevard County, north of the existing north boundary of the City of Cocoa Beach. A duplex dwelling unit is located on the parcel. Petitioner occupies one unit annually during the summer.
Petitioner Pope's property is not adjacent to the property where the proposed Days Inn Tower is to be located. The property is located approximately three blocks directly north of the proposed building and measures 475 feet east- west by 50 feet north-south and is bounded on the east by the Atlantic Ocean.
Petitioners, Hugh and Cora Harris, own property located at Lot 13 of replat of Blocks 104 and 105, Avon-by-the Sea, in the unincorporated land of Brevard County, which borders on the City of Cocoa Beach. Petitioners' property is located across Young Avenue, and north of the property owned by 5500 North Corporation.
The Harris's property contains a single family dwelling unit and is adjacent to the property were the proposed Days Inn Tower is to be located.
Petitioners, Patricia A. and Eugene A. Wojewoda, own a unit at the Cocoa Beach Towers, a multi-family condominium, which is located north of the property owned by 5500 North Corporation, across Young Avenue, in the City of Cocoa Beach. The Wojewoda's unit is located on property which is adjacent to the property where the proposed Days Inn Tower is to located.
Petitioners Wojewodas are Real Estate Brokers and owners of Professional Touch Realty, Inc. One of their four offices is located at 108 Young Avenue, immediately across the street and north of the subject property.
Petitioners, Howard and Martha Crusey, own a unit, which they rent out, in the Cocoa Beach Towers, which is located north and adjacent to the property owned by 5500 North Corporation. Petitioners reside at 430 Johnson Avenue in Cape Canaveral, Florida.
The Department sent out a notice for public comment to each of the immediate adjacent property owners.
Existing Uniform and Continuous Line of Construction
As part of the application process, the Department made a determination of the existing line of uniform and continuous construction. The existing line of uniform and continuous construction is a theoretical line that goes from the most seaward extent of the two adjacent structures, where adjacent structures exist, and extends north and south along the seaward edge of the structures.
In the instant case, there is historical development of major habitable structures on either side of the parcel for which the proposed building is being constructed and which are co-terminus with the prior CCCL.
The footprint of the proposed Days Inn Tower does not extend seaward of the existing uniform and continuous line of construction, although a new structure (Discovery Beach) north of the Cocoa Beach Towers has been constructed landward of the current CCCL.
The existing structures, which form the existing line of uniform and continuous construction, have not been unduly affected by erosion.
The property was purchased by 5500 North Corporation in 1988.
The property was commercially developed with the existing hotel buildings between 1959 and 1962, and the site has been operated as a hotel since that time.
The footprint of the building was set by the engineers based on the parking requirements of the City of Cocoa Beach, and environmental concerns.
It was determined that if the parking were located on the seaward side of the building, there would be drainage problems, and the need for a storm water treatment system for the parking lot. With the parking lot located landward of the proposed building, there will be no drain off to the side areas, but rather drain off would be to the middle of the property where the exfiltration system is located.
The parking lot located landward of the proposed building meets the City of Cocoa Beach parking requirements and the drainage requirements.
When siting the footprint of the proposed building, the engineers also took into consideration the fact that if the parking were located on the seaward side of the proposed building, the headlights would shine out to the beach and possibly impact sea turtles nesting.
The applicants stated that construction seaward of the control line or 50-foot setback is considered necessary for reasonable use of the property, for the following reasons:
The proposed building is basically an addition to a completion of the original concept of the overall hotel complex that was never completed in the past due to either financial or room
availability need. The proposed placement seaward of the CCCL can be attributed to the configuration of the existing on-site buildings and the require- ment to satisfy the City of Cocoa Beach's extensive parking and limited access point requirements that
have been subjected to this proposed site development. Please note that the proposed building is not being placed seaward of the existing line of continuous construction that has been established by the
adjacent buildings to the north and the south.
The Department determines necessity based upon the impacts the proposed structure will have on the active beach, and the dune system, and the neighborhood properties including the subject property, how the property is zoned, and whether it is situated behind the existing continuous line of construction.
It is the Department's opinion that if the proposed building is in compliance with the standards established in Chapter 16B-33, F.A.C., the necessity of the proposed building has been justified.
Impacts to the Beach-Dune System
The greater weight of evidence supports the conclusion that the shoreline fronting the site of the proposed Days Inn Tower is stable. This section of the coastline has historically been accretional, and still continues to be accretional. There exists adequate evidence of current littoral trends.
There exists accepted methodologies for determining evidence of expected wind, wave, hydrostatic and hydrodynamic forces associated with the design storm event which was presented in 5500 North Corporation's application for CCCL permit.
Based on the 1989 Brevard County Study conducted by Olsen and Associates, Inc., there is no erosion at the location of the proposed building, instead the shoreline is prograding seaward instead of landward. Therefore, the shoreline is at least stable or accretional.
Based on its in-house analysis, the Department of Environmental Protection conservatively adopted an erosion rate of one foot per year, which is considered a relatively minor erosion rate.
Based on the Department of Environmental Protection's projection of the erosion for the area being one foot per year, the location of the proposed building lies well in excess of 200 feet landward of the thirty-year seasonal high water line.
Although the proposed structure extends 118 feet seaward of the CCCL, the setback of the proposed building from the existing dune line is significant; therefore, there was no evidence of a threat of impact on the beach, to the beach or dune system as a result of the construction at the specific site.
There are existing devices (i.e., an existing fence on the property which funnels people into boardwalks so that people cannot walk uncontrolled on the beach dune system) implemented in Brevard County and specifically on the site which will help manage people impacts as well.
The setback between the dune and the proposed construction qualitatively relates to the ability of the site to recover after a one-hundred year storm.
If a structure is located too far seaward, either immediately adjacent to or on top of the dune, it would inhibit the natural storm recovery process.
The proposed building is set a significant distance landward of the dune formation itself, so there will be adequate room for the dune to recover in the future should there be a one-hundred year storm event.
The proposed structure is located at a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and the natural recovery following storm induced erosion.
The proposed construction will not have a cumulative impact that will threaten the beach or dune system or its recovery potential following a major storm event.
low.
Impacts to Adjacent Property Owners
The probability of potential impacts to adjacent property owners is
One reason the proposed building will not have adverse impacts to
adjacent properties is that the proposed building is located significantly landward, and does not go further seaward than the existing line of construction. The adjacent buildings were constructed landward of the previous CCCL.
The nature of the design associated with the particular project or the structural components of the design also minimize the impact to the parcel and to adjacent parcels.
The first feature of the design of the proposed building is that the major habitable floors of the building are above the elevation of the one- hundred year storm and wave activity on top of the storm surge, so they will not be impacted by the water height or the wave activity of the storm.
The second feature of the design of the proposed building is that everything below the habitable floors is designed to break away and lie down during any impact by wave activity, which allows the storm to go through the building rather than having those forces exerted on the building itself.
The frangible driveway is designed so that the individual stones will fall as the grade falls, and most of them will end up buried in the event of a storm.
The third feature of the design of the proposed building is that the building is elevated on a pile foundation which is sunk to a depth which is sufficient to accommodate for the anticipated erosion of a one-hundred year storm, and the pile caps are sunk well into the ground so that they do not contribute to erosion.
Therefore, the building has been designed to withstand the one-hundred year storm, and the dynamics of the storm are allowed to go through the building and to be dissipated, in contrast to endangering the building or endangering adjacent properties.
Due to the fact that the proposed building is "super-elevated and the portions that are actually impacted by the one-hundred year storm being frangible," the proposed building will not impact the adjacent properties.
The proposed Days Inn Tower would serve to protect the adjacent Cocoa Beach Towers, and Petitioner Harris's property, by blocking the impact of a storm coming from the southeast.
The proposed structure is designed so as to minimize any expected adverse impact on the beach dune system or adjacent properties or structures and is designed consistent with Section 16B-33.005, Florida Administrative Code.
The proposed building meets the requirements of Chapter 161, Chapter 16B-33, Florida Administrative Code.
Structural Design of Proposed Building
The applicant provided adequate engineering data to the Department concerning the construction design of the building.
The structure is designed in accordance with the minimum building code adopted for the area pursuant to Section 553.70-553.895, Florida Statutes.
The proposed building is designed in accordance with the local code, and, in the opinion of the structural engineer who designed the building, either meets or exceeds the required codes.
The proposed building is designed in accordance with Section 6, American National Standards/American Society of Civil Engineering 7-88 (July 1990) "Minimum Design Loads for Buildings and Other Structures", and has a minimum basic wind speed of 110 miles per hour.
The proposed building is designed so that the building and its components will not become airborne missiles.
The plans for the windows and doors require that they meet the 110 miles per hour wind loads.
The proposed building is made of concrete reinforced masonry, and does not have bricks or attached masonry which could detach in a storm and become airborne.
There are no substantial walls or partitions to be constructed below the level of the first finished floor, except for the elevator and stairs, seaward of the CCCL. The walls on the first floor are frangible walls which are designed to resist the 110 mile per hour wind pressure, but they lie down or collapse into the erosion hole created under wave surge pressure. The frangible walls are made of 4-inch thick concrete with reinforcing rods inside them, and are cut into 4 foot by 4 foot panels. The Department of Environmental Protection requires that any walls constructed below the one-hundred year storm surge plus storm wave elevations be frangible walls.
The structural design considered the hydrodynamic loads which would be expected under the conditions of a one-hundred year storm event.
The calculation for wave forces on building foundations and building superstructures is based on minimum criteria and methods given in professionally recognized documents accepted by the Bureau of Coastal Engineering and Regulation with the Department.
The structural design considered hydrostatic loads which would be expected under the conditions of maximum water height associated with a one- hundred year storm event.
The calculations for hydrostatic loads considered the maximum water pressure resulting from a fully peaked, breaking wave superimposed on the design storm surge.
Both free and confined hydrostatic loads were considered in the design calculations.
Hydrostatic loads which are confined were determined using the maximum elevation to which the confined water would fully rise if unconfined.
Vertical hydrostatic loads were considered as forces acting both vertically downward and upward; however, there is no action upward because the maximum water level is at midlevel of the first floor and does not reach the second floor.
The structural design considered the hydrodynamic loads which would be expected under the conditions of a one-hundred year storm event.
The calculations for hydrodynamic loads considered the maximum water pressure resulting from the motion of the water mass associated with a one- hundred year storm event.
Full intensity loading was applied on all structural surfaces above the design grade which would effect the flow velocities, which are above the first floor and are not reached by the wave surge.
The proposed building is elevated on, and securely anchored to, an adequate pile foundation in such a manner as to locate the building support structure above the design breaking wave crests or wave uprush as superimposed on the storm surge with dynamic wave set up of one-hundred year storm.
The piling foundation is designed to withstand anticipated erosion, scour, and loads resulting form a one-hundred year storm, including wind, wave, hydrostatic and hydrodynamic forces, and the pile caps are located below the erosion line as indicated by the Department's information and graphs.
The elevation of the soil surface used in the calculation design grade is less than that which would result from the anticipated beach and dune erosion due to the one-hundred year storm event.
The erosion calculations for foundation design account for all vertical and lateral erosions and scour producing forces.
The pile caps are set below the design grade which includes localized scour, and are designed for the erosion of soil during the one-hundred year storm event.
The piles are driven to a penetration which achieves adequate bearing capacity taking into consideration the anticipated loss of soil above the design grade, based on information provided by the geotechnical engineer's recommendation and the Department's requirements.
The design plans and specifications submitted as part of the permit application for the proposed Days Inn Tower are in compliance with the standards established in Rules 16B-33, Florida Administrative Code.
Turtle Impacts
There is a two prong test which the proposed structure must meet to determine if the proposed building would have an adverse impact on nesting sea turtles. First, the proposed structure must not occupy marine turtle habitat, and second, the proposed structure's lighting must be adequate to eliminate adverse impacts to marine turtles.
The effects of pedestrian traffic or flashlights on the beach are not considered by the Department when reviewing a permit application for adverse impacts to the marine turtles.
The proposed building is sited significantly landward of the nesting beach, which is evidenced by the 75-foot wide dune stretch; therefore, it is not anticipated that the structure will result in any direct mortality of any marine turtle, nor would the building result in the degradation of the marine turtle nesting habitat.
The proposed seven story structure will not occupy marine turtle habitat.
The permit requirement to do dune restorative work, proposed by the Department, enhances the marine turtle habitat by further building the dune and enhancing the dune. Although the turtles do not nest beyond the dune crest, the dune is an integral part of protecting the habitat.
There is a potential that the building, due to its height, could enhance marine turtle nesting habitat by blocking out the ambient glow from the City of Cocoa Beach which would create a dark beach directly in front of the proposed structure which could attract nesting.
The applicant submitted a lighting plan to the Department which complied with the guidelines that are established in the information form entitled "Assessment to reduce impacts to marine turtles for lighting to reduce adverse impacts associated with coastal lighting."
There are two main components of the lighting plan associated with the proposed building: the parking lot lights and the structural lighting. The parking lot lighting is designed as low-level Ballard-style lighting which is only 48 inches above the grade and emits light in a downward direction which will not be directly visible from the beach. The parking lot lighting design is the type recommended by the Department for parking lots, and is a good lighting design.
The Department also recommends that an applicant plant hedges or landscape features to block out parking lights. The applicant is proposing to plant hedges in front of the 18 parking spaces that are on the seaward side of the proposed building.
The structural lighting plan does have lighting on the seaward facade of the proposed building, which is not recommended by the Department, but the lights are designed to eliminate or significantly reduce the impact to marine turtles. The lights consist of canister, shielded, down-casting lights on the balconies which house a yellow bug lamp which is less impactive to turtles, and which is acceptable to the Department.
The Department issued an approval letter regarding the proposed building to the project engineer which contained permit conditions for the protection of the marine turtles in association with the project. The permit conditions are as follows:
No construction, operation, transportation or storage of equipment or materials is authorized seaward of the existing chain link fence located approximately 175 feet seaward of the coastal construction control line.
No temporary lighting of the construction area is authorized at any time during the marine turtle nesting season (March 1 through October 31). All permanent exterior lighting shall be installed and maintained as depicted in the approved lighting schematic. No additional permanent exterior lighting is authorized.
c All windows and glass doors visible from any point on the beach must be tinted to a transmittance value (light transmission form inside to outside)
of 45% or less through the use of tinted glass or window film.
Pursuant to the Department's requirements, the proposed construction will not have an adverse impact on nesting sea turtles, their hatchlings, or their habitat.
Vegetation Impacts
The vegetation patch on the dune system is approximately seventy five feet wide under today's conditions, and is probably growing to some degree.
The vegetation system is basically comprised of a low-level dune which is planted both naturally and artificially with indigenous, salt-tolerant type vegetation, and sea oats.
The existing line of construction which the proposed building is set behind is well landward of the zone of indigenous vegetation.
Special condition #4 contained in the permit issued by the Department requires the applicant to convert some of the existing sodded area between the vegetation limits and the proposed construction to plantings with indigenous vegetation, which will serve to enhance the dune system.
The native beach vegetation will be adequately protected by the permit conditions, given the location of the construction.
Local Government Approvals
On June 3, 1992, the Cocoa Beach Board of Adjustment granted a variance to the CCCL to the 5500 North Corporation for construction of the proposed building.
Challenges to decisions of the City's Board of Adjustment is to the circuit court. In the instant case, the time for challenging the decision of the Board has expired.
The City of Cocoa Beach Planning Board has the authority to approve site plans for site specific construction. The City's Planning Board has the responsibility of ensuring that the site plan conforms with the Comprehensive Plan and to recommend changes, if needed, to the City Commission.
On July 13, 1992, the Cocoa Beach Planning Board voted to approve the site plan for the proposed building submitted by the 5500 North Corporation.
The decision of the Planning Board granting approval of the 5500 North Corporation's site plan showed part or all of the building was seaward of the CCCL.
The Petitioners did not file an appeal of the Planning Board's decision with the City Commission. Nor did they challenge the Planning Board's action in the circuit court.
The 5500 North Corporation was not required to apply to the city commission for an amendment to the Cocoa Beach Comprehensive Plan in order to permit the proposed hotel tower to be located in the designated high hazard area.
On July 6, 1993, the Building Official issued a building construction permit to the 5500 North Corporation for the proposed building, which has been subsequently extended for an unknown period of time.
There are no other permits or local government requirements which have not been met by 5500 North Corporation.
The applicant submitted written evidence to the Department from the City of Cocoa Beach, who has jurisdiction over the project, which stated that the project does not contravene local setback requirements, or zoning and building codes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter in cases involving permits issued by the Department of Environmental Protection for construction seaward of the CCCL pursuant to Section 120.57(1), and 161.053, Florida Statutes.
Petitioner's Standing
The Petitions filed by the Petitioners, Carole Pope, Hugh and Cora Harris, Martha and Howard Crusey, and Patricia and Eugene Wojewoda, herein sought to initiate an administrative proceeding pursuant to Section 120.57, Florida Statutes, and Rule 28-5.201, Florida Administrative Code. The provisions of Section 120.57, Florida Statutes, apply "in all proceedings in which the substantial interests of a party are determined by an agency ..." Section 120.57, Fla. Stat. (1989). A "party" is defined as:
Specifically named persons whose substantial interests are being determined in the proceeding.
Any other person who, as a matter of constitutional right, provision of statute,
or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interest will be affected by proposed agency action, and who makes an appearance as a party.
Any other person ... allowed by the agency to intervene or participate in the proceedings as a party . . .
Section 120.52(12), Fla. Stat. (1989).
The Department of Environmental Protection requires the applicant for a CCCL permit to supply it with the names and mailing addresses of the owners of the "immediately adjacent properties". Rule 16B-33.008(2)(k), Florida Administrative Code. Only the property owners who are "immediately adjacent" receive notice by the Department of pending permit action, and are through such notice given an opportunity to comment during the permit process. Therefore, the Department has by rule determined the individuals who are parties in the permitting process. Therefore, in order to establish that they have standing to participate in a hearing pursuant to Section 120.57, Florida Statutes, the Petitioners must either prove that they own property immediately adjacent to the proposed project, or that their substantial interest will be affected by the proposed agency action.
Petitioners, Hugh and Cora Harris, Martha and Howard Crusey, and Patricia and Eugene Wojewoda, have established that they own property which is "immediately adjacent" to the proposed Days Inn Tower. Therefore, they are considered parties pursuant to Section 120.57, Florida Statutes, and thus have standing to bring the instant action.
Petitioner, Carole Pope, does not own property which is "immediately adjacent" to the property owned by the applicant which is the subject of this proceeding. Ms. Pope's property is approximately three to four blocks north of the property at issue. Therefore, Petitioner, Carole Pope, cannot be a party to
the proceedings pursuant to Section 120.57, Florida Statutes, unless she can demonstrate that her substantial interests will be affected by the Department's proposed action.
In order for Petitioner Pope to show that her substantial interests will be affected by the agency action, and that she is therefore entitled to initiate an administrative proceeding, she must demonstrate that she "will suffer an injury to [her] substantial interests in a manner sought to be prevented by the statutory scheme." Florida Society of Ophthalmology v. State Board of Optometry, 532 So.2d 1279, 1284 (Fla. 1st DCA 1988). In this regard a petitioner must show:
1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.
Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478, 482 (Fla. 2d DCA 1981), rev. den. 415 So.2d 1359 (Fla. 1982) See also, Florida Society of Opthalmology, 532 So.2d at 1285.
The first element of the test set out in Agrico requires a petitioner's injury to be real and immediate; it must amount to more than mere conjecture or speculation. The injury alleged by Petitioner Pope does not satisfy the "real and immediate" standard expressed in Agrico. Although her property is adjacent to the Atlantic Ocean, Ms. Pope has asserted only that she "feels this type of thing" damages the dunes. Rather than alleging that she will suffer an injury "in fact . . . of sufficient immediacy" which entitles her to a hearing under Section 120.57, Florida Statutes, as required by Agrico, she alleges a possible harm which she surmises may, at an unspecified point in the future, cause injury to her property. Because the injury alleged is not sufficient to invoke the proceedings provided under Section 120.57, Florida Statutes, Petitioner has failed to demonstrate she has standing to bring the present action.
Even if Petitioner, Carole Pope, had satisfied the first prong of the Agrico test, her petition still must be denied for failure to meet the second part of the test. The permit at issue is authorized pursuant to Section 161.053, Florida Statutes. That section grants to the Department authority to establish CCCLs on a county-by-county basis, and to regulate all construction activities proposed for a location for a location seaward of a CCCL. The purpose of this regulatory scheme is to protect the beaches of this state, as well as the coastal barrier dunes adjacent to those beaches:
. . .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.
Section 161.053(1)(a), Fla. Stat. (1989).
In contrast, the injury alleged by Ms. Pope is concern that the issuance of this permit will set a precedent for construction seaward of the CCCL in the future, thus affecting the vacant lot located next to her property. Ms. Pope does not own property which is adjacent to the property at issue. This alleged injury is not of a type sought to be prevented by the regulatory scheme contained in Section 161.053, Florida Statutes, and therefore cannot form the basis for standing in an administrative hearing under Section 120.57, Florida Statutes. Shared Services, Inc. v. Department of Health and Rehabilitative Services, 426 So.2d 56 (Fla. 1st DCA 1983).
Petitioner, Carole Pope, has failed to demonstrated that she will suffer injury in fact which is of sufficient immediacy to entitle her to a hearing pursuant to Section 120.57, Florida Statutes, or that she is subject to substantial injury of a type or nature designed to be protected by the provisions of Chapter 161, Florida Statutes, and therefore lacks standing to contest the issuance of Permit No. BE-760.
Permit Application
The statute governing the application for a CCCL permit which is the subject of this administrative hearing is Section 161.053, Florida Statutes. Chapter 16B-33, Florida Administrative Code, Division of Beaches and Shores - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Line and Fifty-Foot Setback), are the rules governing issuance of CCCL permits.
Pursuant to Section 161.053(5)(a), Florida Statutes, to obtain a CCCL permit from the Department, an applicant must show a clearly justified entitlement to the permit. In order to "clearly justify" entitlement to a CCCL permit, an applicant must demonstrate compliance with the requirements of Section 161.053, Florida Statutes, and Chapter 16B-33, Florida Administrative Code. Section 161.053(5), states, in pertinent part, that:
(5) Except in those areas where local zoning and building codes have been established pursuant to subsection (4), a permit to alter, excavate, or construct
on property seaward of established coastal construction control lines may be granted by the department as follows:
(a) The department may authorize an excavation or erection of a structure at any coastal location as described in subsection
upon receipt of an application from a property and/or riparian owner and upon the consideration of facts and circumstances, including:
Adequate engineering data concerning shoreline stability and storm tides related to shoreline topography;
Design features of the proposed structure or activities; and
Potential impacts of the location of such structure 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.
Adequate engineering data, both independently and as supplied by the applicant, concerning the shoreline stability and storm tides related to shoreline topography, indicate that the shoreline is relatively stable. The Department received from the applicant building plans and structural calculations regarding the design of the proposed building. The Department also considered the potential impacts of the proposed structure on the beach-dune system.
The Department promulgated Section 16B-33, Florida Administrative Code, which establishes the specific requirements for obtaining a CCCL permit pursuant to Section 161.053(5), Florida Statutes. Therefore, if the requirements of Rules 16B-33.005, 16B-33.006, and 16B-33.007, Florida Administrative Code, have been met by the applicant, the applicant has "clearly justified" the permit in the opinion of the Department as required by Section 161.053(5)(a), Florida Statutes.
Rule 16B-33.008, Florida Administrative Code, sets forth the application requirements and procedures for obtaining a CCCL permit. The applicant has supplied the information required pursuant to Rule 16B-33.008, F.A.C.
Rule 16B-33.007, Florida Administrative Code, provides the structural and other requirements necessary for permit approval. The applicant has supplied sufficient factual evidence that the requirements contained in Rule 16B-33.007, Florida Administrative Code, have been met. In addition, the Department, as evidenced by its proposed Final Order granting Permit BE-706 issued May 20, 1993, which is the subject of this proceeding, had previously
determined that, in its opinion, the applicant met the requirements contained in this rule. Therefore, the Applicant has satisfied the requirements contained in Rule 16B-33.007, Florida Administrative Code.
Necessity and Justificatio
Rule 16B-33.005, Florida Administrative Code, establishes policies which the Department must adhere to in reviewing and granting CCCL permits. Specifically, Rule 16B-33.005(1), Florida Administrative Code, states:
. . . Establishment of a coastal construction control line or the 50-foot setback line requirement does not preclude all development of or alteration of coastal property seaward of such lines. However, activities seaward of a coastal construction control line or
50-foot setback shall be limited and the necessity of such development, construction or alteration shall be stated and clearly justified by the applicant.
Rule 16B-33.005, F.A.C., does not specifically define the word "necessity". However, in Rule 16B-33.007, F.A.C. states:
The necessity for activities seaward of the control line or setback line shall be stated and clearly justified by the applicant in
accordance with the requirements of this Chapter.
Therefore, reading the rules in pari materia, if the applicant satisfies the other requirements in the Section 16B-33, F.A.C., the applicant has satisfied Rule 16B-33.005(1), F.A.C.
Rule 16B-33.007(7), F.A.C., further states:
In analyzing the information submitted by the applicant, the Department shall consider
the following types of information and concerns:
The purpose of construction or excavation;
The relationship between the use of the proposed construction or excavation and the use of existing structures;
The location of the applicant's property in relation to the coastal construction control line or 50 foot setback;
The location of the existing structures in relation to the coastal construction control line or 50 foot setback;
County and municipal zoning regulations applicable to both the applicant's property and its use and other properties in the area which
are more stringent than the Department's requirement for the purposes of Chapter 161, Florida Statutes;
Existing county and municipal governmental ordinances and regulations prescribing setback limitations applicable to existing structures which are more stringent than the Department's requirements,
The topography of the applicant's property;
The location of structures in the area of the applicant's property that have established a reasonably continuous and uniform line of construction closer to the line of mean high water than the established control line on a map or pictorial diagram or representation, if the permit is requested under
the provision of Paragraphs 161.053(b) or 161.052(2)(b), Florida Statutes;
Any alternatives to the proposed construction available to the applicant;
Any other site-specific considerations.
It is apparent from the above rule and the testimony of the Department's personnel, that the Department interprets the term "necessity" as addressing the impacts of the proposed construction to the given area as it relates to their rules. An agency's interpretation of its own rules is afforded great deference, and will not be overturned unless it is clearly arbitrary, capricious, or beyond the scope of its authority. Public Employees Relations
Commission v. Dade County Police Benevolent Associations, 467 So.2d 987 (Fla. 1985); Reedy Creek Improvement District v. State of Florida, 486 So.2d 642 (Fla. 1st DCA 1986); Woodley v. Dept. of HRS, 505 So.2d 676 (Fla. 1st DCA 1987).
The applicant clearly stated in its applications and through testimony why it felt the application should be approved and why construction seaward of the CCCL was necessary for the reasonable use of the property, as required pursuant to Rule 16B-33.008(2)(e), F.A.C. Consequently, the applicant has satisfied the requirements of the Department in its policy statement set forth in Rule 16B-33.005(1), F.A.C.
The applicant has factually demonstrated that the cumulative impact of the proposed construction will not threaten the beach or dune system along the shoreline in front of the proposed Days Inn Tower, or its recovery potential following a major storm event. Therefore, the applicant has satisfied the requirements of the Department in its policy statement set forth in Rule 16B- 33.005(7), F.A.C.
The applicant has factually demonstrated that due to its distance from the proposed construction, the presence of an existing chain link fence between the vegetation and the proposed construction site, and the existence of a boardwalk from the proposed site over the vegetation to the beach, the beach vegetation is adequately protected. In addition, the Department placed special conditions in the permit which protect the beach vegetation, and further require the applicant to enhance the existing beach vegetation. Therefore, the applicant has satisfied the requirements of the Department in policy statement set forth in Rule 16B-33.005(8), F.A.C.
The applicant has factually demonstrated that the sea turtles, its hatchlings, and its habitat will be adequately protected, and the Department has placed special permit conditions in the permit for the protection of the sea turtles, their hatchlings, and their habitat. Therefore, the applicant has satisfied the requirements of the Department in its policy statement set forth in Rule 16B-33.005(9), F.A.C.
129. Rule 16B-33.006(6), F.A.C., states:
The Department shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more stringent than, the requirements provided in this Chapter.
Rule 16B-33.008(2)(c), F.A.C., provides that the applicant must provide to the Department:
Written evidence by the appropriate local governmental agency having jurisdiction over the proposed activity, that the proposed activity as submitted to the Bureau, does
not contravene setback requirements or zoning or building codes.
The applicant supplied letters from the City of Cocoa Beach Building Inspector stating that the activity did not contravene local setback requirements or zoning or building codes. In addition, the applicant provided certified copies of the Minutes of the Meeting of the City of Cocoa Beach Board
of Adjustment wherein the Board voted to grant the applicant a variance to the City's setback requirement; certified copies of the Minutes of the City of Cocoa Beach Planning Board wherein the Board voted to approve the applicant's site plan; and a certified copy of the applicant's building permit issued July 1993 by the City's Building Official. Consequently, the applicant has provided sufficient evidence to the Department that it has received all necessary local approvals for the proposed building.
In presenting their case, the Petitioners have misconstrued the duty of the Department in reviewing whether the Respondent corporation has complied with the requirements of Rules 16B-33.006(6) and 16B-33.007(7)(e) and (f), Florida Administrative Code. Petitioners have argued that the Department should go behind the actions of the local government agency and determine for itself whether or not it agrees with its decisions, and decide whether those decisions have complied with the City's own ordinances. That is not the function of an agency of the Executive Branch of the state government. There is an adequate remedy to challenge those actions in the circuit courts of this state.
Whether the Petitioners have not pursued their judicial remedies due to inaction or bad advice is not grounds to confer such authority on the Department or this tribunal. Therefore, in granting the permit the Department will not contravene local setback requirements, zoning or building codes.
The Applicant has satisfied the requirements contained in Section 161.053(5), Florida Statutes, and Chapter 16B-33, F.A.C., as applicable, and is entitled to receive a coastal construction control line permit pursuant to Section 161.053, Florida Statutes.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection issue Permit
Number BE-760 to the 5500 North Corporation, subject to the conditions proposed
in the proposed Final Order.
DONE and ENTERED this 24th day of March, 1994, in Tallahassee, Florida.
DANIEL M. KILBRIDE
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 24th day of March, 1994.
APPENDIX
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.
Petitioners' Proposed Findings of Fact
Accepted in substance: paragraphs 1 (in part) 2, 3 (in part), 4, 5, 6, 7, 8
(in part), 10, 12 (in part), 13, 16 (in part), 17, 18, 19, 23 (in part), 24 (in
part), 26 (in part), 27 (in part), 29 (in part), 31 (in part), 38 (in part), 49,
51, 63, 68 (in part), 69, 70, 71, 73 (in part).
Rejected as against the greater weight of evidence: paragraphs 15 (in part), 16 (in part), 27 (in part), 46, 50 (in part), 82 (in part).
Rejected as subsumed, argument or Conclusions of law: paragraphs 1 (in part), 14, 15 (in part), 16 (in part), 21, 23 (in part), 25, 26 (in part), 27
(in part), 28, 29 (in part), 30, 31 (in part), 32, 33, 34 (in part), 35, 36, 37
(in part), 38 (in part), 39, 40, 41, 42, 43, 44, 45, 47, 48, 50 (in part), 52,
56, 57, 58 (in part), 59 (in part), 61, 62, 64, 65, 66, 67, 68 (in part), 72 (in
part), 73 (in part), 76, 77, 78, 79, 80, 81, 82 (in part), 83, 84.
Rejected as irrelevant or immaterial: paragraphs 3 (in part), 5, 8 (in part), 9, 11, 12 (in part), 20, 22, 24 (in part), 34 (in part), 53, 54, 55, 58
(in part), 59 (in part), 60, 72 (in part), 74, 75.
Respondent's Proposed Findings of Fact:
Accepted in Substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 14, 15, 16 (in part), 17, 18, 19, 20, 22, 23, 24, 25, 27, 29, 30, 35, 36 (in
part), 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54,
55, 56, 57, 58, 59, 60, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75,
76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 92, 93 (in part) 94, 95, 96, 97, 98,
99, 100, 101, 102, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115,
116, 117, 118.
Rejected as against the greater weight of evidence: paragraph 16 (in part). Rejected as subsumed, argument or irrelevant and immaterial: paragraphs
21, 26, 28, 31, 32, 33, 34, 36 (in part), 61, 87, 88, 89, 90, 91, 93 (in part),
103.
COPIES FURNISHED:
Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Kenneth Plante
Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Hugh and Cora Harris (pro se)
208 Young Avenue
Cocoa Beach, Florida 32931
Howard and Martha Crusey (pro se)
430 Johnson Avenue, Apartment #304 Cape Canaveral, Florida 32920
Carole Pope (pro se) 715 Rockledge Drive
Rockledge, Florida 32955
Patricia and Eugene Wojewoda 830 North Atlantic Avenue Cocoa Beach, Florida 32931
Dana M. Wiehle, Esquire Assistant General Counsel
Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road, MS-35 Tallahassee, Florida 32399
Wilbur E. Brewton, Esquire Kelly Brewton Plante, Esquire Taylor, Brion, Buker & Greene
225 South Adams Street, Suite 250 Tallahassee, Florida 32301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CAROLE C. POPE,
vs.
Petitioner, DOAH CASE, NO.: 93-4560
DEPARTMENT OF ENVIRONMENTAL PROTECTION and 5500 NORTH CORPORATION,
Respondents,
/ PATRICIA A. AND EUGENE A. WOJEWODA,
Petitioners,
vs.
DEPARTMENT OF ENVIRONMENTAL PROTECTION and 5500 NORTH CORPORATION,
Respondents,
/ HUGH W. AND CORA L. HARRIS,
Petitioners,
DOAH CASE NO.: 93-4561
vs. DOAH CASE NO.: 93-4562
DEPARTMENT OF ENVIRONMENTAL PROTECTION and 5500 NORTH CORPORATION,
Respondents,
/
MR. AND MRS. HOWARD W. CRUSEY,
Petitioners,
vs. DOAH CASE NO.: 93-4563
DEPARTMENT OF ENVIRONMENTAL PROTECTION and 5500 NORTH CORPORATION,
Respondents.
/
FINAL ORDER
On March 24, 1994, a Hearing Officer from the Division Of Administrative Hearings submitted his Recommended Order to Petitioners, Carole C. Pope, Patricia A. and Eugene A. Wojewoda, Hugh W. and Cora L. Harris, and Mr. and Mrs. Howard W. Crusey; and to Respondents, 5500 North Corporation and Department of Environmental Protection (Department). A copy of the Recommended Order is attached as Exhibit A.
On April 12, 1994, Petitioners filed 19 exceptions to the findings of fact and conclusions of law contained in the Hearing Officer's Recommended Order.
Respondent 5500 North Corporation filed responses to Petitioners' exceptions on April 15, 1994. Petitioners filed answers to Respondent's responses to Petitioners' exceptions to the Recommended Order on May 2, 1994. The exceptions, responses to exceptions, and answers to responses are attached as Exhibit B.
An agency may reject or modify the conclusions of law and interpretations of administrative rules contained in a Recommended Order, but may not reject or modify the Hearing Officer's findings of fact unless a review of the entire record demonstrates that such findings 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. Section 120.57(1)(b)10., Fla. Stat., Rule 16-5.003, F.A.C. Competent substantial evidence is defined as evidence which is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached. DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957). The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, as these are matters within the sole province of the Hearing Officer. Heifitz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Therefore, if the record discloses any competent substantial evidence to support a finding of fact contained in the Recommended Order, that finding of fact must stand. See, e.g., Florida Department of Correction v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1985. The rulings on all exceptions are contained in Exhibit C. The matter is now before the Secretary of the Department (Secretary) for final agency action.
Having considered the Recommended Order and the exceptions thereto, it is hereby
ORDERED THAT:
The Recommended Order is adopted in toto.
Respondent 5500 North Corporation's permit application number BE-760 for activities seaward of the coastal construction control line is granted subject to the conditions contained in the proposed final order the Department issued on May 20, 1993.
DONE AND ORDERED THIS 9th day of May, 1994, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA WETHERELL
Secretary
2600 Blairstone Road Tallahassee, Florida 32399-2400
Filed this 9th day of May, 1994.
Cheryl W. Coke Department Clerk
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), Florida Rules of Appellate Procedure. To initiate an appeal, a Notice of Appeal must be filed with the Clerk of the Department of Environmental Protection, and with the appropriate District Court of Appeal within thirty (30) days of the date this final order is filed with the Department Clerk. The Notice filed with the District Court must be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.
In addition, a party to this proceeding has the right to request review of this order by the Governor and Cabinet, sitting as the Land and Water Adjudicatory Committee, in accordance with Chapter 93-213, Laws of Florida. To initiate such review, the request must be filed within twenty (20) days of the date of this order with the Secretary of the Commission at The Capitol, Room 2105, Tallahassee, Florida, 32399-0001. A copy of the request must also be served on both the Department of Environmental Protection, Agency Clerk, 2600 Blairstone Road, Mail Station 35, Tallahassee, Florida 32399-2400, and on any other person named in this order if the request for review is to be effective.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been sent this 10th day ofMay, 1994, U.S. Mail to the following:
Hugh and Cora Harris
208 Young Avenue
Cocoa Beach, Florida 32931
Howard and Martha Crusey
430 Johnson Avenue, Apartment 304 Cape Canaveral, Florida 32920
Carole Pope
715 Rockledge Drive
Rockledge, Florida 32955
Patricia and Eugene Wojewoda 830 North Atlantic Avenue Cocoa Beach, Florida 32931
Wilbur E. Brewton Kelly Brewton Plante
Taylor, Brion, Buker & Greene
225 South Adams Street, Suite 250 Tallahassee, Florida 32301
and by hand delivery to:
Daniel M. Kilbride, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Ann Cole, Clerk
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Dana M. Wiehle
Assistant General Counsel
Department of Environmental Protection 2600 Blairstone Road MS-35 Tallahassee, Florida 32399-2400
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
BARRIE J. SAWYER
Assistant General Counsel
| Issue Date | Proceedings |
|---|---|
| May 10, 1994 | CC Pages 1,2&3 of the Petitioners Note on Changes in the Status of Local Approval in the Day`s Inn Case w/cover ltr filed. (From Hugh Harris) |
| May 10, 1994 | Final Order filed. |
| May 02, 1994 | Petitioners Answer To Respondents Responses To Petitioners Exceptions To Recommended Order; CC: Letter To D. Wiehle from H. Harris filed. |
| Apr. 13, 1994 | (Petitioners) Exceptions to Recommended Order filed. |
| Mar. 24, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held January 11 and 12, 1994. |
| Feb. 28, 1994 | Memorandum to J. York from D. Kilbride re: Extension of time; Recommended Order due 3/21/94. |
| Feb. 10, 1994 | Correction to Petitioners Proposed Recommended Order (filed in 93-4562) filed. (From Hugh W. Harris) |
| Feb. 01, 1994 | Petitioner`s Proposed Recommended Order filed. |
| Jan. 31, 1994 | Petitioner`s Proposed Recommended Order filed. |
| Jan. 31, 1994 | Proposed Recommended Order filed. (From Kelly B. Plante) |
| Jan. 31, 1994 | Respondent Department of Environmental Protections` Notice of Waiver filed. |
| Jan. 19, 1994 | (Petitioner) Hearing Statement in Lieu of Appearance w/cover ltr filed. |
| Jan. 19, 1994 | Transcript of Proceedings (Volumes 1-5) filed. |
| Jan. 11, 1994 | CASE STATUS: Hearing Held. |
| Jan. 10, 1994 | (Petitioner) Request for Continuance filed. |
| Jan. 10, 1994 | Respondents Objection to Motion for Continuance filed. |
| Jan. 10, 1994 | Respondent Department of Environmental Protections` Motion to Quash filed. |
| Jan. 07, 1994 | Respondent Department of Environmental Protections` Response to Motion to Produce filed. |
| Jan. 07, 1994 | Respondent Department of Environmental Protections` Motion for Protective Order; Respondent Department of Environmental Protections` Final Witness and Exhibit List filed. |
| Jan. 05, 1994 | Petitioners List of Witnesses and Exhibits w/cover ltr filed. |
| Jan. 05, 1994 | 5500 North Corporation`s Notice of Filing Additional Curriculum Vitae of Frank Plata, P.E., and Mike Sole filed. |
| Jan. 05, 1994 | (Petitioners) Motion to Produce filed. |
| Jan. 04, 1994 | (Petitioners) Motion to Produce filed. |
| Jan. 04, 1994 | Final Witness List and Curriculum Vitae of Expert Witnesses; Supplemental List of Exhibits, Excluding Copies of the Exhibits Provided to Parties; Motion for Production of Documents Requesting copies of all listed Exhibits filed. (From Kelly Brewton Plan |
| Jan. 03, 1994 | (Respondent) Request for Discovery #11 filed. |
| Dec. 28, 1993 | Prehearing Order sent out (hearing set for 1/11/94; 9:00am; Cocoa) |
| Dec. 28, 1993 | Petitioners Response to Respondents Motions in Limine (filed in 93-4562) filed. |
| Dec. 21, 1993 | Additional Elements of Petitioners Prehearing Stipulation for Consolidation With Respondents Elements (field in 93-4562) filed. |
| Dec. 17, 1993 | Petitioners Elements of Prehearing Stipulation for Consolidation With Respondents Elements (filed in 93-4562) filed. |
| Dec. 17, 1993 | Respondent Department of Environmental Protections` Motion in Limine;Respondent Department of Environmental Protections` Motion for Protective Order filed. |
| Dec. 17, 1993 | (joint) Prehearing Statement filed. |
| Dec. 13, 1993 | Order Continuing Hearing sent out. (hearing rescheduled for 12/21/93; 12:00noon; Melbourne) |
| Dec. 08, 1993 | (Petitioners) Request for Discovery #10 Interrogatory (filed in 93-4562) filed. |
| Dec. 07, 1993 | Motion in Limine filed. (From Kelly Brewton Plante) |
| Dec. 07, 1993 | Petitioner`s Request for Continuance filed. |
| Dec. 06, 1993 | (Petitioner) Motion for Continuance (filed in 93-4561) filed. |
| Dec. 02, 1993 | Preliminary List of Petitioners Witnesses filed. |
| Dec. 01, 1993 | Respondents, 5500 North Corporation, Response to Request for Discovery #4; Respondents, 5500 North Corporation, Response to Request for Discovery #7 filed. |
| Dec. 01, 1993 | Respondent`s, 5500 North Corporation, Response to Petitioners` Request for Discovery #9 filed. |
| Nov. 29, 1993 | (Petitioners) Motion for Continuance filed. |
| Nov. 29, 1993 | Respondent`s Objection to Request for Continuance filed. |
| Nov. 29, 1993 | (Respondent) Motion for Protective Order; Respondent`s, 5500 North Corporation, Response to Petitioners` Request for Discovery #1 filed. |
| Nov. 24, 1993 | (Respondents) Request for Discovery #9 & #8 filed. |
| Nov. 18, 1993 | (Petitioners) Response to Notice of Hearing & Initial Prehearing Order; Request for Discovery 2&3 filed. |
| Nov. 01, 1993 | Order sent out (Respondent`s Motion to Dismiss & Respondent`s Motion to Dismiss or to Strike Denied; 5500 North Corporation`s Motion to be Joined as a Party Respondent Granted) |
| Nov. 01, 1993 | Notice of Hearing and Initial Prehearing Order sent out. (hearing set for 12/21-22/93; 1:00pm; Melbourne) |
| Nov. 01, 1993 | Order of Consolidation sent out. (Consolidated cases are: 93-4560, 93-4561, 93-4562, & 93-4563) |
| Oct. 14, 1993 | Petitioner`s Response to Respondent`s Motions to Dismiss and Strike filed. |
| Sep. 07, 1993 | (Petitioner) Response to Initial Order filed. |
| Sep. 07, 1993 | (Petitioner) Response to Initial Order filed. |
| Sep. 07, 1993 | Respondent Department of Environmental Protections` Motion to Dismiss or, In The Alternative, Motion to Strike filed. |
| Sep. 03, 1993 | Joint Response to Initial Order filed. |
| Aug. 31, 1993 | Notice of Appearance; Motion to Correct Case Style filed. (From Wilbur E. Brewton et al) |
| Aug. 24, 1993 | Initial Order issued. |
| Aug. 17, 1993 | Request for Formal Administrative Hearing filed. |
| Aug. 12, 1993 | Agency referral letter; Notice Of Related Cases filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 09, 1994 | Agency Final Order | |
| Mar. 24, 1994 | Recommended Order | Petitioner has shown necessity for CCCL permit; dune & turtle impacts minim- al; local government approval valid; one petitioner failed to show standing. |
TED WIESE AND SHIRLEY WIESE vs. DEPARTMENT OF NATURAL RESOURCES, 93-004560 (1993)
GREG HILL vs. DEPARTMENT OF NATURAL RESOURCES, 93-004560 (1993)
PATRICK RUSH vs DEPARTMENT OF NATURAL RESOURCES, 93-004560 (1993)
WALTON COUNTY AND W. L. "BILLY" MCLEAN vs. DEPARTMENT OF NATURAL RESOURCES, 93-004560 (1993)
