The Issue Did Respondent, Robert Skidmore, III, violate section 112.313(6), Florida Statutes (2011),1/ by using his position as county commissioner to ask a county staff member to approve a zoning application for Beach Road Boutique? Did Mr. Skidmore violate section 112.313(6) by asking a county employee to look for and selectively enforce code violations against J.J.'s Restaurant?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: At all times relevant to this proceeding, Mr. Skidmore was a Charlotte County commissioner. Beach Road Boutique Zoning Scott and Jill Hemmes, constituents of Mr. Skidmore, owned a business known as Beach Road Boutique in Charlotte County. They sought to obtain a state alcoholic beverage sales license. In order to obtain a license, the applicant must demonstrate local zoning approval. Charlotte County Commission employees enforce and apply zoning regulations in the county. Erin Mullen-Travis is the licensing manager for Charlotte County Planning and Development. During 2011, she was the code compliance and licensing manager. Ms. Mullen-Travis has worked for Charlotte County over 26 years. One of Ms. Mullen-Travis's duties as code compliance and licensing manager was the review and approval of the zoning requirements on applications of establishments wanting alcoholic beverage licenses. Ms. Mullen-Travis first denied the zoning application of Beach Road Boutique on February 17, 2011. Mr. and Ms. Hemmes sought Mr. Skidmore's assistance getting approval for their zoning application. Mr. Skidmore called Ms. Mullen-Travis about the application. Mr. Skidmore told Ms. Mullen-Travis that he had some nice people in his office and that he needed help getting zoning approval for them. In her 26 years of employment with Charlotte County, Mr. Skidmore was the only county commissioner who had ever directly sought her assistance with constituent matters. Other commissioners had always gone through the chain-of-command. He identified the applicant, and Ms. Mullen-Travis explained why the zoning had not been approved. Ms. Mullen-Travis felt intimidated by Mr. Skidmore. Mr. Skidmore, however, did not threaten Ms. Mullen-Travis or explicitly offer any reward available to him because of his position as county commissioner. He did, however, implicitly offer a reward, if she helped the Hemmes. It is common knowledge in Charlotte County that Ms. Mullen-Travis is a NASCAR fan. Among other things, she drives a car with Dale Earnhardt and NASCAR badges and decals. During the call, Mr. Skidmore asked Ms. Mullen-Travis about her affinity for NASCAR. He also offered to get her an autographed photo of Rusty Wallace (a NASCAR driver) and tickets to a race. He told her that he had gone to school with Rusty Wallace's son. This is true. And Ms. Mullen-Travis could not have known it without Mr. Skidmore telling her. Given the context, Ms. Mullen-Travis accurately considered that the tickets and photo were offered in exchange for her approval of the application to the benefit of the Hemmes. Also, the call was made in Mr. Skidmore's official capacity. Charlotte County has a Home Rule Charter (Charter). Section 2.3(A)(1) of the Charter makes the county administrator responsible for all administrative matters and operations. Section 2.3(C)(1) states: "Except for purposes of inquiry and information, the members of the board of county commissioners shall not interfere with the performance of the duties of any employee of the county who is under the direct or indirect supervision of the county administration." Also, the long-established practice was for commissioners to only contact agency directors. Mr. Skidmore's call to Ms. Mullen-Travis was contrary to the Charlotte County Charter and the practice under it. Therefore, it was not an authorized act pursuant to his duties or authorities as a county commissioner. Mr. Skidmore and Ms. Mullen-Travis were the only participants in the call. He denies the conversation. Ms. Mullen-Travis's account is more credible. This is based upon her contemporaneous communications about the call, the common recollection of all witnesses of a NASCAR component to the conversation, the fact that she could not otherwise have known Mr. Skidmore went to school with Rusty Wallace's son, the relative personal interests of the witnesses in the outcome of the proceeding, and the demeanor of the witnesses, particularly of Mr. Skidmore's. Shonna Jenkins worked as a contractor licensing investigator for Charlotte County for a little over seven years. She held that position in 2011 and reported to Ms. Mullen-Travis. Mr. Skidmore had obtained Ms. Jenkins cell phone number. He had a practice of calling her directly to check on contractor licensing matters. He also contacted Ms. Jenkins to ask her to approve the Beach Road Boutique zoning application. J.J.'s Restaurant After a meeting held on March 3, 2011, Mr. Skidmore flagged Ms. Jenkins down in the parking lot. He asked her to "do him a favor," and "go shut them [J.J.'s Restaurant] down. I want them out of this f**ing town." Mr. Skidmore wanted Ms. Jenkins to find code violations for J.J.'s Restaurant. Mr. Skidmore said that he would make sure that Ms. Jenkins got a pay raise or a pay grade increase for this. Either the ex-boyfriend or ex-husband of Mr. Skidmore's wife and father of her child had an interest in J.J.'s Restaurant. There was conflict between the two families. Mr. Skidmore had also requested the Charlotte County director of Growth Management, Jeff Ruggieri, to take code enforcement actions against J.J.'s Restaurant. Ms. Jenkins was intimidated and feared her job with the county was in jeopardy if she did not do as Mr. Skidmore asked. Ms. Jenkins reported the conversation to Ms. Mullen-Travis and Joanna Colburn, a licensing investigator, immediately afterwards. Ms. Jenkins was visibly upset and shocked. She also contemporaneously documented the incident. Ms. Jenkins is and has been frank about her dislike for Mr. Skidmore. This hostility, as well as the mental and emotional difficulties Ms. Jenkins suffered as a result of her employment and dealings with Mr. Skidmore, does not undermine her testimony. In light of the witnesses' demeanor and corroborating evidence, her testimony is credible. In addition, although evidence established Ms. Jenkins was taking several medications, the record does not indicate that the medications in any way affect a person's memory or veracity. Mr. Skidmore's requests to Ms. Jenkins and Mr. Ruggieri to act against J.J.'s Restaurant were in violation of the Charlotte County Charter and, therefore, not authorized acts pursuant to his duties or responsibilities as a county commissioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Respondent, Robert Skidmore, III, twice violated section 112.313(6) and that he be fined $5,000 for each violation for a total of $10,000, together with public censure and reprimand. DONE AND ENTERED this 27th day of February, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2015.
Recommendation Having found the Respondent technically guilty of a violation of Section 489.129(1)(d), and thereby guilty of violating Section 489.129(1)(m), Florida Statutes, and based upon the matters in mitigation, the Hearing Officer recommends that the Respondent receive a private letter of reprimand for his technical violation. DONE and ORDERED this 30th day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1982. COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Mr. David H. Otto 1527 C Road Loxahatchee, Florida 33470 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based on the evidence received at the final hearing, the following findings of fact are made. At all times material to this case the Respondent, Willie Whittington, was licensed as a certified general contractor in the State of Florida, holding license number CG C006966. At all times material to this case the Respondent was the sole qualifying agent for Whittington & Sons Builders, Inc. On May 15, 1987, Edwin W. Brown and Sandra J. Brown, husband and wife, contacted Respondent, in response to Respondent's advertising, to discuss the construction of a log house and an outbuilding on a lot owned by the Browns in Palm Beach County, Florida. The outbuilding was to be used as a combination garage and barn. During this initial meeting, the Browns described the project to Respondent. At the conclusion of the meeting on May 15, 1987, the Browns gave Respondent a $2,000.00 deposit to get started on the project. Respondent was to use that deposit to have plans drawn for the two buildings and to secure the necessary building permits. On June 23, 1987, Whittington & Sons Builders, Inc. entered into two contracts with the Browns, one for the house and the other for the outbuilding. Respondent signed both contracts on behalf of Whittington & Sons Builders, Inc. Both contracts were clear and unambiguous as to the work that was to be performed, as to the price that was to be paid for the work, and as to the schedules by which the construction draws would be made. The price for the house was set at $73,506.00. The price of the outbuilding was set at $11,665.00. Both contracts provided that construction would be completed within 130 days. On June 23, 1987, the Browns paid to Respondent the sum of $6,871.60 as required by the two contracts. Sandra Brown began keeping a log of her contacts with Respondent as of August 4, 1987, because she had experienced difficulty reaching Respondent by telephone and because no progress was being made on the project. Around August 4, 1987, Respondent told the Browns that he needed an additional $175.00 to pay to the architect to complete the plans. Because this was not provided for by their contracts, the Browns refused Respondent's request for this additional sum of money. On August 7, 1987, the Browns paid to Respondent the sum of $3,822.90 that Respondent was to use to order the logs. The building permits were not obtained until October 9, 1987. The permits were not obtained earlier than that date because Respondent did not diligently pursue his obligation to get the permits. As of early November 1987, the only work that had been done was the preparation of the lot for the foundation. On November 7, 1987, Respondent requested that the Browns advance him $5,000.00 so he could proceed with the construction. Respondent was financially unable to proceed because the Internal Revenue Service had garnished the account in which Respondent had placed the Browns' deposits. The Browns refused to advance Respondent this additional sum of money, but they remained willing to pay Respondent according to the draw schedules of the contracts. In December 1987 the Browns received a notice to owner form from Rinker Materials. In response to this notice, the Browns paid to Rinker Materials the sum of $2,664.77 and asked that no further materials be delivered on a credit basis to the job site. The Browns received a release of lien from Rinker Materials on December 28, 1987, for the materials Respondent had previously ordered on credit. In the middle of December 1987, the Browns learned that Respondent had neither ordered the logs for the construction nor determined the quantity of logs that would be required. On or about December 18, 1987, the foundation for the house was poured. Little work was done on the project between that date and January 4, 1988, the date Respondent told the Browns that his back was hurt and he could not work. The Browns filed a written complaint with the Palm Beach County Contractors Certification Board on January 8, 1988. As of January 13, 1988, Respondent was unable to account for the funds the Browns had deposited with him. At a meeting on January 19, 1988, among Respondent, the Browns, and a representative of Palm Beach County Contractors Certification Board, Respondent agreed to furnish receipts and an accounting of the construction funds by the next meeting on January 27, 1988. Respondent also agreed, during the meeting of January 19, 1988, to perform certain work on the project before the next meeting. At the next meeting, Respondent did not provide the Browns with receipts or with an accounting of the construction funds. Instead Respondent submitted a non-itemized bill in the amount of $18,131.20 for labor and materials supposedly expended by Respondent through January 27, 1988. The Browns refused to pay this bill. Respondent had worked only approximately 16 hours on the project between January 19 and January 27 and had not completed the additional work he had promised to have done January 27, 1988. The Browns fired Respondent and his company on January 27, 1988. At that time, Respondent had completed approximately 10% of the project `whereas it should have been approximately 60-70% completed. The delays by Respondent throughout his association with this project were not justified. After the Browns fired Respondent, they were forced to pay a materialman, MacMichael Lumber Company, to prevent the foreclosure of a lien against the property. This lien resulted because Respondent did not pay for certain materials he had ordered on credit before the Browns fired him. On February 4, 1988, Respondent agreed to repay the Browns the sum of $4,200.00. As of the date of the final hearing, Respondent owed the Browns $1,400.00. A subsequent contractor completed the project without undue delay in June 1988 for an additional $74,000. This price reflects changes the Browns made after the subsequent contractor began his work. Petitioner is the state agency charged with the regulation of contractors in the State of Florida. The Administrative Complaint filed by Petitioner against Respondent alleges, in pertinent part, the following: Respondent failed to perform in a reasonably timely manner, and or abandoned said job(s), in violation of 489.129(1)(m),(k). There was financial mismanagement and/or misconduct in connection with this matter, attributable either to Respondent directly, or to Respondent's failure to properly supervise, in violation of Section 489.129(1)(h) & (m), as generally exhibited by, but not limited to, the following: Subject double billed Customer on several occasions; failure to pay subcontractors and suppliers; and failure to buy materials. There was no allegation in the Administrative Complaint or evidence presented at hearing that Respondent has been the subject of prior disciplinary action. Respondent has been licensed as a certified general contractor by the State of Florida since 1973. Following receipt of the Administrative Complaint, Respondent denied the violations and timely requested a formal administrative hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds Respondent guilty of having violated Section 489.129(1)(h), Florida Statutes and which imposes a fine against Respondent in the amount of $1,500 for such violation and which further finds Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes and which imposes a fine against Respondent in the amount of $1,500 for such violation so that the total fine to be imposed against Respondent is $3,000. DONE and ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE ARRINGTON 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 7th day of July, 1989. APPENDIX CASE NO. 89-0743 The proposed findings of fact submitted by Petitioner are addressed as follows. Addressed in paragraph 1. Addressed in paragraph 27. Addressed in paragraph 3. 4-5. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraph 6. Rejected as being unnecessary to result reached. Addressed in paragraph 7. Addressed in paragraph 8. Addressed in paragraph 9. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 10. 14-15. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 12. Addressed in paragraph 17. Rejected as being unnecessary to result reached. Addressed in paragraph 14. Addressed in paragraph 15. Addressed in paragraph 15. Addressed in paragraph 16. 22-26. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 17. Addressed in paragraph 19. Addressed in paragraph 23. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 24. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 22. 34-35. Rejected as being recitation of testimony and as being subordinate to the conclusions reached. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Willie Whittington 342 Walker Street Greenacres City, Florida 34974 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
Findings Of Fact The record presented consists of a transcript of the proceedings before the Palm Beach County Construction Industry Licensing Board considering allegations against Ronald Pintacuda and a portion of the exhibits presented to that Board during the proceedings. The record does not contain the Administrative Complaint or other charging documents upon which the Palm Beach County Construction Industry Licensing Board proceeded against Ronald Pintacuda. The allegations against Pintacuda are summed up in a statement by Mr. Flynn, prosecuting attorney for the Board on page 6 of the transcript. The prime contention of the prosecution and the proceeding before the local board was that Pintacuda was guilty of aiding and abetting an unlicensed company to avoid the provisions of the building code by virtue of a specific agreement referred to throughout the transcript but which was not made a part of the evidentiary record presented to the Hearing Officer. Mr. Ciklin, counsel for Mr. Pintacuda, refers on page 5 to three charges outstanding against Pintacuda before the local board, and in his summation at page 38 outlines these as follows: Willful and deliberate disregard of the applicable building codes or law; Combining or conspiring with an uncertified or unregistered person (by allowing one's certificate or registration to be used by any uncertified or unregistered person with the intent to evade the provisions of this part); and Acting in the capacity of a contractor under someone else's certificate except for the name of the certificate holder. In the absence of a charging document or a statement of charges having been read into the record, Mr. Ciklin's outline of the charges considered by the local board against Ronald Pintacuda are taken as true and accurate. The critical element in consideration of this case is the time sequence of the events. The sequence of events between Ronald Pintacuda and Ralph Howell began in 1974, when Howell approached Pintacuda about forming a construction business. C Pinta & Howell, Inc., was created in a corporate reorganization from an inactive corporation, Martin & Pinta, Inc., in January, 1975. Martin & Pinta, Inc., was a corporation formed by John Martin and Ronald Pintacuda in which John Martin was president and Ronald Pintacuda vice-president. John Martin, a Canadian, ceased participation in the business upon his return to Canada, and the corporation went into an inactive status. In January, 1975, Ralph Howell approached Ronald Pintacuda about forming a construction corporation. This resulted in the formation of Pinta & Howell, Inc. Because of domestic problems, Ralph Howell's father, Alexander Howell, served as president of Pinta and Howell, Inc. Ralph Howell was construction superintendent of this corporation and was the primary manager of the Howell interests in the corporation. Pintacuda participated actively in the business affairs of Pinta & Howell, Inc., from January, 1975, until December, 1975. Although it is not explicitly stated in the transcript, it is apparent that Pintacuda decided to cease his active role in Pinta & Howell, Inc., in December, 1975. At that time Pintacuda entered an agreement with Alexander Howell which was the basis of an allegation of combining or conspiring with an uncertified or unregistered person by allowing one's certificate or registration to be used by any uncertified or unregistered person with intent to evade the provisions of the law. Although this agreement is not a part of the exhibits presented to the Hearing Officer, a portion of that agreement was read into the record by Mr. Pintacuda at page 29 of the transcript. That portion of the agreement provided as follows: Agreement between Ronald Pintacuda and Alexander Howell--That Ronald Pintacuda and Alexander Howell, officers of Howell & Pinta, Inc. stipulate that Howell & Pinta, Inc. shall not conduct any business unless both parties agree in writing to such business. This includes, but is not limited to, the signing of any contracts or financial obligations. The basis of the complaints upon which the prosecution of Pintacuda was based, arose in early 1970, when Ralph and Gerald Howell accepted contracts in behalf of Tri-County Marine Construction, Inc., and pulled permits from local authorities in the name of Pinta & Howell, Inc. In addition, Ronald Pintacuda is charged with obtaining four building permits in the name of Pinta & Howell, Inc., for construction contracts taken by Tri-County Marine Construction, Inc. (Tri-County Marine). After the formation of Pinta & Howell, Inc., Ralph Howell who was an officer in Tri-County Marine suggested to Pintacuda that Tri-County Marine be made, an affiliate or subsidiary of Pinta & Howell, Inc. Pintacuda concurred in this, and Howell had the advertising, letterhead, contracts, and yellow page advertisement for Tri-County Marine altered to reflect that Tri-County Marine was an affiliate or subsidiary of Pinta & Howell, Inc. Documentary evidence concerning the corporate status of Pinta & Howell, Inc., and Tri-County Marine which was presented to the local board was not made a part of the exhibits presented to the Hearing Officer. However, testimony of witnesses at the proceeding based upon those exhibits indicate that there was no record in the Secretary of State's office of any corporate interrelationship between Pinta & Howell, Inc., and Tri-County Marine, Inc. The testimony of Pintacuda and the contracts presented in support of the Board's case do show that Tri-County Marine represented itself to the public and functioned as an affiliate or subsidiary of Pinta & Howell, Inc. This affiliation was even recognized by the Board's prosecuting attorney, Mr. Flynn, at page 6 when he stated ". . . Tri- County Marine Construction, Inc. is an affiliate of Pinta & Howell, Inc." Initially, efforts in January, 1976, to contact Pintacuda by local Board authorities and investigators of the Florida Construction Industry Licensing Board were unsuccessful. From the testimony of Mr. Verner, investigator for the Construction Industry Licensing Board, many telephone and personal messages left with Mr. Ralph Howell and his secretary were not passed on to Mr. Pintacuda. When Mr. Pintacuda was eventually contacted by Mr. Verner, Mr. Pintacuda was cooperative, forthright, and took immediate steps to deregister as qualifier for Pinta & Howell, Inc., in an effort to prevent further abuses by Ralph and Gerald Howell. The Palm Beach County Construction Industry Licensing Board did not find Ronald Pintacuda guilty of any of the three allegations charged. The action to revoke the license of Ronald Pintacuda was on a motion by Mr. Barrett at page 41 of the transcript which does not recite a finding regarding Pintacuda's guilt of any of the allegations against him. It was this motion which was seconded and passed by the Board. The local board therefore revoked the license of Ronald Pintacuda without a finding of guilt on any of the complaints against him.
Recommendation Based upon the foregoing findings of fact and conclusions of law and review of the proceedings before the Palm Beach County Construction Industry Licensing Board, the Hearing Officer recommends that no action be taken by the Florida Construction Industry Licensing Board against the license of Ronald Pintacuda. DONE and ORDERED this 23rd day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Alan J. Ciklin, Esquire Post Office Box 3704 Professional Plaza West Palm Beach, Florida 33402 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-785 RONALD PINTACUDA dba TRI-COUNTY MARINE CONSTRUCTION, INC., CG C005834, 6561 Katherine Road, West Palm Beach, Florida 33406, Respondent. /
The Issue The issues to be determined is whether the City of Destin (“City”) has demonstrated its entitlement to place dredged material from the maintenance dredging of the East Pass (“East Pass” or “inlet”) entrance channel conducted pursuant to the Consolidated Joint Coastal Permit and Sovereign Submerged Lands Authorization, Permit Number: 0288799-003-JC (“Permit”), in the swash zone east of East Pass in accordance with the Notice to Proceed (“NTP”); and whether the Inlet Management Plan referenced in the NTP is an unadopted rule as described in section 120.57(1)(e), Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Petitioners, David H. Sherry and Rebecca R. Sherry, own Unit 511 at the Surf Dweller Condominium, 554 Coral Court, Fort Walton Beach, Florida. The Surf Dweller Condominium, which is on Santa Rosa Island in the unincorporated community of Okaloosa Island,1/ fronts the Gulf of Mexico, and straddles DEP Reference Monument R-7, which is between three and four miles west of DEP Virtual Monument V-611, and is between five and six miles west of the west side of East Pass. The Sherrys use the beach at their condominium on a daily basis for fishing, crabbing, swimming, walking, running, and general recreation. They also walk or run from Monument R-7 along the beaches to East Pass, and occasionally drive to and use the beaches on the east side of East Pass. Petitioner, John S. Donovan, owns Units 131 and 132 at the El Matador Condominium, 909 Santa Rosa Boulevard, Fort Walton Beach, Florida. The El Matador Condominium is on Okaloosa Island, fronts the Gulf of Mexico, and is approximately five miles west of Monument V-611, and is more than six miles west of the west side of East Pass. Mr. Donovan generally walks the beaches west of his condominium, but does occasionally walk along the beach to Monument V-607, which is the location of a seawall constructed by the Air Force on sovereign submerged lands to protect an Air Force tracking facility. Intervenor, Thomas Wilson, resides at 856 Edgewood Drive, Charleston, West Virginia, and owns a secondary residence at 1530 Miracle Strip Parkway, No. 101-B, Fort Walton Beach, Florida, in the vicinity of Monument R-14. Mr. Wilson uses and enjoys the gulf-front beaches between his property on Okaloosa Island and East Pass. Petitioners’ stated injuries are related to the allegation that the lateral movement of sand from the East Pass areas of influence is from east to west. Placing dredged material in the eastern disposal site would allegedly deprive the beaches in front of their property -- beaches that are miles from the nearest area of influence or spoil disposal site -- of their natural sand supply by cutting off what they allege to be the natural sand flow, causing the beaches in front of their properties to eventually erode. Petitioners alleged no immediate environmental injuries associated with the NTP. Petitioners’ stated objective in this case is to have any sand dredged from East Past to be placed on the western disposal areas at all times. The City is the applicant for the Permit and the NTP, and abuts the east side of East Pass. DEP is an agency of the State of Florida pursuant to section 20.255, Florida Statutes. DEP is the permitting authority in this proceeding and issued the NTP at issue in this proceeding to the City. The NTP was issued on February 2, 2018, without notice of rights language regarding the right to request a hearing or time limits for doing so. Petitioners received a copy of the NTP on October 1, 2018, and filed a challenge more than 14 days later, on November 30, 2018. East Pass Prior to 1928, the connection from Choctawhatchee Bay to the Gulf of Mexico flowed through what is now Old Pass Lagoon. After a storm in 1928, a high-tide breach of the shoreline near the current location of East Pass was formed. In 1929, a record rain event caused waters to rise in Choctawhatchee Bay. Residents of the area dug a relief channel at roughly the present location of East Pass. The waters releasing through the more hydraulically efficient flow path from Choctawhatchee Bay established a channel, which quickly enlarged to become the prominent inlet to the Gulf of Mexico. The permanent channel, now known as East Pass, is the only navigable passage from Choctawhatchee Bay and the Intercoastal Waterway to the Gulf of Mexico between Panama City, Florida, and Pensacola, Florida. East Pass separates the gulf-fronting beaches of the City to its east from the beaches owned by the United States as part of Eglin Air Force Base to the west. The entrance to East Pass is protected by two boulder-mount jetties: a 3,860 foot- long jetty on the west side of the inlet and a 1,210 foot-long jetty on the east side of the inlet. East Pass is an ebb tide dominated inlet, with a sizable amount of sediment moving in and out. When outgoing tidal flow moves though the constriction formed by the jetties, flow velocities are accelerated. When the water, and any entrained sediment, passes the jetties, flow tends to spread out to the east, west, and south, and naturally loses velocity. When the outgoing tidal waters reach a critical velocity where they can no longer carry the sand, the sand drops out of suspension, which forms the ebb shoal. Essentially, the ebb shoal is a large, semi-circular sandbar extending from the mouth of East Pass that was created by the ebb tide carrying sediments south. East Pass is a highly dynamic inlet system. There are processes spurred by the configuration and location of East Pass, tides, waves, and storms that have resulted in currents running to the east and west that change on a frequent basis. The Physical Monitoring Plan (“PMP”), which is part of the Permit, and thus, not subject to challenge in this case, established, for the period of 1996 through 2007, “a trend of west to east longshore transport, resulting in net gain immediately west of [East Pass] and a significant loss of sand along Holiday Isle east of [East Pass].” The PMP further established that a “drift nodal point” existed at East Pass. Longshore transport at uniform coastal locations is generally in one direction. However, when there are wave events coming from varying angles, and where beach contours are not parallel and uniform, or even linear, it is common for transport reversals to occur. The point at which those reversals occur is referred to as a nodal point. That point can be where east and west transport converges, or where it diverges. The shoreline in the vicinity of East Pass has exhibited “quite a few” nodal points over the past decade, resulting in frequent drift reversals and sand transport to the east and the west. The evidence as to the existence and effect of the East Pass drift nodal point, and its affect on the lateral transport of sand in the area, including the East Pass areas of influence, was substantiated by testimony and other evidence introduced at the final hearing. The testimony and evidence that there is no consistent direction of lateral sand transport in the vicinity of East Pass, and no predominant lateral current transporting sand in a westerly direction, is accepted. Evidence to the contrary was not persuasive. East Pass includes a federal navigation channel. The federal navigation channel requires routine maintenance to prevent it from shoaling. On an average, East Pass is dredged in two-year intervals. The last time that East Pass was dredged was in December of 2013. It has now shoaled with sand and become very hazardous for marine traffic. In December of 2018, the City declared a state of emergency relating to the navigational hazards caused by the accumulation of sand in the navigation channel. The Permit On February 26, 2015, DEP issued the Permit, which authorized the City to perform “periodic maintenance dredging of the federally authorized East Pass and Destin Harbor and navigation channels.” The Permit will expire on February 26, 2030. Notice of the issuance of this Permit was published in the Destin Log, a newspaper of general circulation, on December 24, 2014. No challenge to the issuance of the Permit was filed. As it pertains to the issues in this proceeding, the Permit provides that “Dredged material from . . . maintenance dredging activities will be placed in the swash zones of the beaches east and west of East Pass, as specified in the East Pass Inlet Management Plan.” The specific beach spoil placement sites are, as relevant to this proceeding, located “west of East Pass . . . between [DEP] reference monuments V-611 and V-622; and on 2 beach sites situated east of East Pass . . . from R-17 to R-20.5 and from R-23.5 to R-25.5.” Those areas correspond to what have been identified as the “areas of influence,” which are the beach areas east and west of East Pass that are affected by tidal forces generated by the inlet. The specified beach spoil placement sites, being conditions of the unchallenged Permit, are not subject to challenge in this case. The Permit establishes the criteria by which specific work is to be authorized. Specific Condition 5 provides, in pertinent part, that: 5. No work shall be conducted under this permit until the Permittee has received a written notice to proceed from the Department for each event. At least 30 days prior to the requested date of issuance of the notice to proceed, the Permittee shall submit a written request for a Notice to Proceed along with the following items for review and approval by the Department: * * * Prior to the second dredging event authorized under this permit, and each subsequent event, the Physical Monitoring Data, as specified in Specific Condition 9, shall be submitted to select the appropriate placement locations. Specific Condition 9 provides that: Following the initial placement of material on Norriego Point, fill site selection shall be supported by the latest physical monitoring data over a minimum of five years in accordance with the adopted East Pass Inlet Management Implementation Plan (July 24, 2013). All physical monitoring shall be conducted in accordance to the Approved physical monitoring plan dated August, 2014. A notice to proceed for specific projects shall be withheld pending concurrence by the Department that the data support the proposed placement location. The purpose of Specific Condition 9 is to identify, using supporting monitoring data from the eastern and western areas of influence, the “adjacent eroding beach” most in need of sand from the inlet. The requirement that physical monitoring data be used to determine which of the beach spoil placement sites identified in the Permit’s Project Description will receive the spoil from any particular periodic dredging event was to implement section 161.142, Florida Statutes. That section mandates that “maintenance dredgings of beach-quality sand are placed on the adjacent eroding beaches,” and establishes the overriding policy of the state regarding disposition of sand from navigational channel maintenance dredging. East Pass Inlet Management Implementation Plan The East Pass Inlet Management Implementation Plan (“East Pass IMP”) was adopted by Final Order of DEP on July 30, 2013.2/ The East Pass IMP was not adopted through the rulemaking procedures proscribed by chapter 120, Florida Statutes, or DEP rules. Despite a comprehensive Notice of Rights advising persons whose substantial interests could be affected of the means by which the East Pass IMP could be challenged, it was not. There are 44 maintained inlets in Florida. About half have individual inlet management plans. The East Pass IMP is not applicable to any inlet other than East Pass. The East Pass IMP does not require that any quantity of dredged material from the dredging of East Pass be placed at any particular location other than as established in the Permit. Rather, the disposal site is to be determined on a case-by-case basis based on the best monitoring data available for the beaches in the area of influence of East Pass. The critical element of the IMP, and that in keeping with the statutory requirement that sand be placed on “adjacent eroding beaches” is the “strategy” that “the recent erosion of adjacent beaches observed over a minimum of five years shall define the placement need in terms of location and volume.” The East Pass IMP, being applicable only to East Pass, is not of “general applicability.” Furthermore, the East Pass IMP does not implement, interpret, or prescribe law or policy. The Notice to Proceed On January 30, 2018, the City filed its Request for Notice to Proceed (“Request”). The Request addressed the criteria in Specific Conditions 5 and 9 of the Permit. Upon review, DEP determined the conditions of the Permit were satisfied and issued the NTP on February 2, 2018. The analysis of data submitted as part of the Request was designed to show areas of erosion and accretion within the eastern and western areas of influence in order to identify “critically eroded beaches.” The shoreline of Santa Rosa Island to the west of East Pass has historically been stable. To be sure, as is the case with any shoreline, there will be some areas of erosion and some areas of accretion. After Hurricanes Ivan and Opal, areas of Santa Rosa Island experienced erosion. DEP declared the shoreline to be critically eroded after the 2004-2005 hurricane seasons, which prompted Okaloosa County to commission a study to monitor the health of the Monuments R-1 through R-16 beach segment, a segment that includes Petitioners’ residences. Despite the fact that no post-storm beach restoration occurred in the area, the beach recovered naturally and gained sand following the post-storm recovery. In addition, Santa Rosa Island is known for “beach cusps,” which are crenulate3/ shapes along the shoreline. Depending on the season and storm conditions, those beach cusps can have a localized erosive effect on the beach, but those tend to be seasonal. They do not negate what the evidence shows to be the overall stable to accretional conditions of the beaches west of East Pass from Monument V-622 to Petitioners’ residences. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches west of East Pass have large dunes; multiple dune lines; tall, and thick vegetated dunes indicating established dune growth; pioneering vegetation indicating active, healthy dune growth and accretion; partially buried signs indicating dune advance; and broad and expansive beaches. Those features are indicative of a stable and accretional shoreline. Mr. Trammell’s testimony as to the western spoil disposal site was convincing and is accepted. At present, the Santa Rosa Island shoreline is not deemed by DEP to be “critically eroded.” The photographic evidence supports the data collected over time for the beaches west of East Pass, and the testimony offered at the final hearing, which collectively establishes, by a preponderance of the evidence, that the beaches to the west of East Pass are stable and accretional, are not subject to erosion caused by East Pass, and are not “adjacent eroding beaches” as that term is used in section 161.142. The shoreline east of East Pass, including the eastern area of influence and the proposed dredge material disposal sites at Monuments R-17 to R-20.5 and R-23.5 to R-25, except for the area immediately abutting the eastern jetty, is highly erosional. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches east of East Pass exhibit the following signs of significant and ongoing erosion: extensive dune erosion; exposed sea oat roots; reduced beach elevation; reduced beach width; crenulate bays; newly built dune walkovers that replaced old walkovers claimed by erosion; dune walkovers in close proximity to the shoreline indicating that the shoreline had receded to the walkover; and beach scarping at the shoreline indicating active erosion. Mr. Trammell’s testimony as to the eastern spoil disposal sites was convincing and is accepted. The eastern areas of influence are currently designated to be “critically eroded” by DEP, a designation maintained for more than 10 years. The photographic evidence supports the data collected over time for the beaches east of East Pass, and the testimony offered at the final hearing, which collectively establishes, by a preponderance of the evidence, that the beaches to the east of East Pass are critically eroded, a condition that is influenced by East Pass and or its navigational channel, and are “adjacent eroding beaches” as that term is used in section 161.142. Data in Support of the NTP The data submitted by the City to DEP in support of the Request included monitoring data for the eastern beach placement areas from the West Destin Four-Year Post-construction Monitoring Report and earlier annual post-construction reports covering the period from October 2012 to July 2017, and additional data from the Holiday Isle Emergency Beach Fill Two-Year Post-construction Report. DEP was also provided with historical monitoring data for the area west of East Pass, including the Western Beach Monitoring Report, which covered 2006 to 2017, and the Potential Borrow Area Impact Report, which included data from 1996 through 2012. DEP has also received recent profile data from April 2019. These reports, and the data contained within them, cumulatively provide more than 20 years of survey date, and demonstrate convincingly that the shoreline to the west of East Pass has been stable or accreting, and the areas to the east are eroded. The data submitted in support of the Request was sufficient to meet Specific Condition 9 that fill site selection be supported by the latest physical monitoring data over a minimum of five years in accordance with the East Pass IMP. Petitioners argue that the City failed to comply with the PMP, which requires, among other things, that the analysis of the dredged material disposal area include “preconstruction survey data and the most recent survey conducted at least five years prior.” The PMP establishes that “[p]reconstruction surveys shall be conducted no more than 90 days before construction commences. A prior beach monitoring survey of the beach and offshore may be submitted for the pre-construction survey if consistent with the other requirements” of the PMP. The City submitted a prior beach monitoring survey of the beach and offshore that is consistent with the PMP. Petitioners argue that the City violated a temporal limitation which provides that the City “may submit a prior beach restoration monitoring report for the west or east beach areas (Walton-Destin or Western Destin Beach Restoration Project) if the monitoring data is collected within 1 year of the proposed maintenance dredging event and if consistent with the other requirements of this condition.” Petitioners acknowledge in their PRO that the beach restoration monitoring report was timely when the Request for NTP was submitted. The information contained therein was sufficient to support the notice of proposed action on the NTP. The otherwise compliant data is no longer within one year of the proposed dredge. In that regard, the litigation in this case, initiated by Petitioners, has been ongoing for almost one year. Work authorized by the NTP cannot go forward when subject to challenge. If the PMP, which is not a rule, is unreasonably read so as not to account for delay caused by litigation, such delay becomes a tool for use by, and a reward for, a person dissatisfied with DEP’s outcome. In this case, the NTP was lawfully issued pursuant to compliant data, surveys, and analysis. As with any permit or license subject to a third- party challenge, the terms of the NTP are tolled pending Petitioners’ litigation, and do not become a ground for denial of the otherwise compliant Request. See § 120.60(1), Fla. Stat. (“An application for a license must be approved or denied within 90 days after receipt of a completed application unless a shorter period of time for agency action is provided by law. The 90-day time period is tolled by the initiation of a proceeding under ss. 120.569 and 120.57. Any application for a license which is not approved or denied . . . within 45 days after a recommended order is submitted to the agency and the parties, . . . is considered approved unless the recommended order recommends that the agency deny the license.”).4/ Furthermore, DEP has now received recent profile data from April 2019. The evidence establishes that the data provided to DEP as part of the Request includes the latest physical monitoring data over a period of greater than five years, and that the data collection met the standards for conducting physical monitoring. Fill Site Selection The NTP authorized “placement of dredged material in the swash zone east of East Pass.” In accordance with the Permit, that authorized area extends eastward from R-17 to R-20.5 and from R-23.5 to R-25.5, in Holiday Isle. The evidence is persuasive that placing dredged material on the eastern side of East Pass would not result in erosion on the western side of East Pass. Dredged material placed in the western beach placement area, and in the “shadow” of the western jetty, will tend to remain in that area. It would take a very long time, if at all, for that material to migrate further to the west. However, dredged material placed to the east of East Pass would, if the lateral shoreline drift is east to west as asserted by Petitioners (though not supported by a preponderance of the evidence as set forth in paragraphs 11 through 13), be introduced into the ebb shoal and likely move faster to the west as opposed to it being placed directly at the base of the west jetty. As such, placement of the dredged material on the eastern beach placement areas would, more likely than not, accomplish the beach effect objectives set forth in the Petition. The Eglin AFB Beach Restoration Project Petitioners relied heavily on photographs taken in 2010 and 2019 from roughly the same location in the vicinity of Monuments V-607 to V-608 to demonstrate that the beaches of Santa Rosa Island are eroding. The area depicted is outside of the area of influence of East Pass, and outside of the western beach placement area under the Permit. Those photographs depict a wide expanse of beach in 2010, with a seawall well upland from the shore in 2010. Then, in 2019, a photograph depicting the same stretch was offered that showed the same seawall, now at or below the water line. The photographs were, ostensibly, designed to depict naturally occurring erosion in the area. Mr. Clark testified that the seawall and boulder mound structure depicted in both photographs protect an Air Force mission-critical tracking facility. The seawall was originally constructed in 1979 after Hurricane Frederick, was constructed at that time to extend into the water, and was maintained in that configuration through the 1990s. One could not walk around the original seawall. Rather, for most of its history, passage around the seaward side of the seawall could only be accomplished by swimming or wading. The original seawall was damaged by Hurricane Opal, and destroyed by Hurricanes Ivan and Dennis in 2004 and 2005. The Air Force, needing to reconstruct the wall, applied for and received a joint coastal construction permit, allowing the structure to be constructed on sovereign submerged land below the line of mean high water. The seawall was rebuilt and, as stated by Mr. Clark, “it was in the water.” In 2010, the Air Force performed the small Eglin Air Force Base Beach Restoration Project, which placed artificial fill in front of the seawall, thereby creating a temporary beach. That beach fill project was “a one-shot deal,” did not involve any subsequent maintenance, and is now essentially gone, as was expected. Mr. Clark was neither surprised nor concerned with the fact that the area returned to what he described as its natural state, with the seawall below mean high water. The 2019 photograph was presented as evidence of erosion caused by East Pass. That was not the case. Rather, the 2010 photograph was evidence of an artificial and singular event, and the 2019 photograph depicts the natural state of the shoreline. Rather than depicting erosion, the 2019 photograph depicts a return to the stable shoreline that exists all along Santa Rosa Island to the west of East Pass. The photographs of the site of the 2010 Eglin Air Force Base Beach Restoration Project do not support a finding that the beaches of Santa Rosa Island are anything but stable, if not accretional, nor do they support a finding that the beaches of Santa Rosa Island are eroding. Ultimate Factual Conclusion Specific Condition 9 of the Permit requires the location of the spoil disposal be supported by the latest physical monitoring data over a minimum of five years in accordance with the East Pass IMP and the PMP. The greater weight of the competent substantial evidence establishes that the City submitted physical monitoring data consistent with the requirements of Specific Condition 9. The greater weight of the competent substantial evidence establishes that the eastern areas of influence of East Pass, including the beach disposal areas at R-17 to R-20.5 and R-23.5 to R-25.5, are critically eroded, a condition influenced if not caused by the East Pass, and constitute East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the western areas of influence of East Pass, including the beach disposal areas at Monuments V-611 to V-622, are stable, if not accreting, and are not East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the City met the standards for the NTP as proposed for issuance by DEP on February 2, 2018. Evidence to the contrary was not persuasive. Thus, the NTP should be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order: Approving the February 2, 2018, Notice to Proceed for the maintenance dredging of East Pass as authorized pursuant to Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 50-0126380-005-EI and State- owned Lease No. 0288799-003-JC, subject to the general and specific conditions set forth therein; and Denying the City of Destin’s Motion for Attorney’s Fees, Expenses and Costs pursuant to section 120.595(1). DONE AND ENTERED this 14th day of October, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2019.
The Issue The issues to be determined are whether the U.S. Army Corps of Engineers (“Corps”) has demonstrated its entitlement to place dredged material from the maintenance dredging of the East Pass (“East Pass” or “inlet”) entrance channel conducted pursuant to Department of Environmental Protection (“DEP”) Permit Modification No. 0288799-006-JN (“Permit Modification”), as amended by the DEP’s August 21, 2019, Notice of Proposed Changes to Proposed Agency Action (“Proposed Change”) in the nearshore zone east of East Pass; and whether the East Pass Inlet Management Plan (“East Pass IMP”) is an unadopted rule as described in section 120.57(1)(e), Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Petitioner, Thomas Wilson, resides at 856 Edgewood Drive, Charleston, West Virginia, and owns a secondary residence at 1530 Miracle Strip Parkway, No. 101-B, Fort Walton Beach, Florida, which is on Santa Rosa Island in the unincorporated community of Okaloosa Island1, and fronts the Gulf of Mexico. Petitioner’s property is in the vicinity of Monument R-14, which is roughly 2.3 miles west of DEP Virtual Monument V-611, and 4.3 miles west of the west side of East Pass. Mr. Wilson uses and enjoys the gulf-front beaches between his property in Okaloosa Island and East Pass. Intervenors, David H. Sherry and Rebecca R. Sherry, own Unit 511 at the Surf Dweller Condominium, 554 Coral Court, Fort Walton Beach, Florida, fronting the Gulf of Mexico and in the Okaloosa Island community. 1 Okaloosa Island is the name of an unincorporated community that stretches about 2.8 miles along Santa Rosa Island from DEP reference monument R-1 through R-16, and is across Santa Rosa Sound from the mainland community of Ft. Walton Beach. Okaloosa Island is the name of the unincorporated community, while Santa Rosa Island is the name of the much longer island of roughly 40 miles in length, which includes U.S. Air Force/Eglin AFB property that extends from the Okaloosa Island community to East Pass. The Surf Dweller Condominium straddles DEP Reference Monument R-7, which is between three and four miles west of DEP Virtual Monument V-611, and is between five and six miles west of the west side of East Pass. The Sherrys use the beach at their condominium on a daily basis for fishing, crabbing, swimming, walking, running, and general recreation. They also walk or run from Monument R-7 along the beaches to East Pass, and occasionally drive to and use the beaches on the east side of East Pass. Intervenor, John S. Donovan, owns Units 131 and 132 at the El Matador Condominium, 909 Santa Rosa Boulevard, Fort Walton Beach, Florida, fronting the Gulf of Mexico and in the Okaloosa Island community. The El Matador Condominium is approximately five miles west of Monument V-611, and is more than six miles west of the west side of East Pass. Mr. Donovan generally walks the beaches west of his condominium, but does occasionally walk along the beach to Monument V-607, which is the location of a seawall constructed by the Air Force on sovereign submerged lands to protect an Air Force tracking facility. Petitioners’ residential properties do not abut either the area established as the zone of influence of East Pass or the stretch of beach that is adjacent to the west fill placement site. Petitioners’ stated injuries are related to the allegation that the lateral movement of sand from the East Pass area of influence is from east to west. Placing dredged material in the eastern disposal site would allegedly deprive the beaches in front of their property -- beaches that are miles from the nearest area of influence or spoil disposal site -- of their natural sand supply by cutting off what they allege to be the natural sand flow, causing the beaches in front of their properties to eventually erode. Petitioners alleged no immediate environmental injuries associated with the Permit Modification. Petitioners’ stated objective in this case is to have any sand dredged from East Past to be placed on the western disposal areas at all times. Respondent, DEP, is an agency of the State of Florida pursuant to section 20.255, Florida Statutes, having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapters 161, 373, and 403, Florida Statutes, and rules promulgated thereunder in Florida Administrative Code Chapters 62 and 62B, regarding activities in surface waters of the state. DEP has been designated by the legislature as the beach and shore preservation authority for the State of Florida and is authorized to take all necessary initiatives to implement the provisions of chapter 161. See § 161.101, Fla. Stat. DEP is the permitting authority in this proceeding and issued the Permit Modification at issue in this proceeding to the Corps. Respondent, the Corps, is a federal agency responsible for maintenance dredging of East Pass, and is the applicant for the Permit Modification. The Corps and DEP are parties to an Interagency Agreement pursuant to which the Corps has agreed that for joint coastal permits, beach compatible dredged material shall be disposed on Florida’s beaches consistent with chapter 161 and other beneficial use criteria specified by the Department and federal standards. Pursuant to the Interagency Agreement, if DEP determines that a permit modification is required to meet state standards, as was the case here, the Corps agrees to apply for and obtain the modification. Intervenor, Destin, is a municipality in Okaloosa County, Florida, and abuts the east side of East Pass. Intervenor, Okaloosa County, is the local sponsor of the federally authorized East Pass Navigation Project. It has a substantial interest in the safety and navigability of the East Pass Navigation Channel and its protection from effects of tropical storm systems. Okaloosa County also has a substantial interest in preserving its recreational and environmental resources. The Permit Modification was issued on November 14, 2016, without publication, or a notice of rights language regarding the right to request a hearing or time limits for doing so. Petitioner, Mr. Wilson, alleged that he received a copy of the Permit Modification on or after May 22, 2019. There was no evidence to the contrary. He, thereafter, filed a challenge with DEP on June 5, 2019, no more than 14 days from the date on which he received notice. East Pass The issue in dispute in this case, as it was in 19-1844, is the determination of whether beaches adjacent to the East Pass inlet are eroding, stable, or accreting, for purposes of meeting the statutory objective of section 161.142. Prior to 1928, the connection from Choctawhatchee Bay to the Gulf of Mexico flowed through what is now Old Pass Lagoon. After a storm in 1928, a high-tide breach of the shoreline near the current location of East Pass was formed. In 1929, a record rain event caused waters to rise in Choctawhatchee Bay. Residents of the area dug a relief channel at roughly the present location of East Pass. The waters releasing through the more hydraulically efficient flow path from Choctawhatchee Bay established a channel, which quickly enlarged to become the prominent inlet to the Gulf of Mexico. The permanent channel, now known as East Pass, is the only navigable passage from Choctawhatchee Bay and the Intercoastal Waterway to the Gulf of Mexico between Panama City, Florida, and Pensacola, Florida. East Pass separates the gulf-fronting beaches of Destin to its east from the beaches owned by the United States as part of Eglin Air Force Base to the west. The entrance to East Pass is protected by two boulder-mount jetties: a 3,860 foot-long jetty on the west side of the inlet, and a 1,210 foot-long jetty on the east side of the inlet. East Pass includes a federal navigation channel. The federal navigation channel requires routine maintenance to prevent it from shoaling. On average, East Pass is dredged in two-year intervals. The last time that East Pass was dredged was in December of 2013. It has now shoaled with sand. Although there was a suggestion that recent storms may have opened the channel to some extent, the evidence was not sufficient to alter the findings based on the 19-1844 record that the channel remains hazardous for marine traffic. East Pass Inlet Management Implementation Plan The East Pass IMP was adopted by Final Order of DEP on July 30, 2013. The East Pass IMP does not require that any quantity of dredged material from the dredging of East Pass be placed at any particular location other than as established in permits issued by DEP. Rather, disposal sites are to be determined on a case-by-case basis based on the best monitoring data available for the beaches in the area of influence of East Pass. Areas of influence are the beach areas east and west of East Pass affected by tidal forces generated by the inlet. The critical element of the East Pass IMP, and that in keeping with the statutory requirement that sand be placed on “adjacent eroding beaches” is the “strategy” that “the recent erosion of adjacent beaches observed over a minimum of five years shall define the placement need in terms of location and volume.” The Permit Modification On October 28, 2009, DEP issued Permit No. 0288799-001-JC to the Corps to perform maintenance dredging of the East Pass Navigation Channel and the Old Pass Lagoon Channel, and to rehabilitate the eastern and western jetties. Materials dredged from the Main Channel south of the U.S. Highway 98 bridge would be primarily bypassed to a portion of the beach on Eglin Air Force Base west of East Pass. As originally issued, the 2009 Permit limited placement of dredged sand to sites west of the inlet, and prohibited placement to the east of the inlet. Contrary to the 2008 amendment to section 161.142 and the 2013 East Pass IMP, the 2009 Permit did not require that sand dredged from the federal navigation channel be placed on the adjacent eroding beach, nor did it extend the life of the proximate West Destin Beach Restoration Project. The Corps requested the Permit Modification in furtherance of an inter-agency agreement between DEP and the Corps, by which the Corps agreed, to the best of its abilities, to act in a manner consistent with state requirements. Pursuant to section 161.142(5), beach compatible sand dredged from federal navigation channels is to be placed on the adjacent eroding beach. On November 14, 2016, DEP issued the Permit Modification to the Corps. The Permit Modification did not change the authorization or requirements for the dredging, but allowed dredged material to be placed on “the Gulf-front beaches on the eastern and western sides of East Pass.” On August 21, 2019, DEP filed the Proposed Change, which amended the Permit Modification to require that “[b]each compatible material dredged from the initial maintenance dredge event following issuance of [the Permit Modification], shall be placed to the east of East Pass.” The Permit Modification provides that, for the first maintenance dredging event following issuance of the Permit Modification, dredged material is to be placed at fill sites east of East Pass, the condition that Petitioners’ find objectionable. The Permit Modification then provides that “[f]or all subsequent maintenance dredging events conducted under this permit, disposal locations shall be supported by physical monitoring data of the beaches east and west of East Pass in order to identify the adjacent eroding beaches that will receive the maintenance dredged material, providing consistency with section 161.142, Florida Statutes.” Thus, the placement of dredged material to the east of East Pass authorized by the Permit Modification applies to the next dredging event, and not necessarily to subsequent periodic dredging events authorized by the Permit Modification. Fill Placement Site The eastern fill placement site authorized by the Permit Modification extends from R-17 to R-20.5. The shoreline adjacent to the eastern fill placement site has been designated as critically eroded for more than ten years. The eastern fill placement site is within the Western Destin Beach Restoration Project and designated as “Reach 1.” The fill placement site west of East Pass is located between V-611 and V-622. The shoreline landward of the western fill site has not been designated as critically eroded by the Department. There are no current beach restoration projects in or adjacent to the western fill site. East Pass is an ebb tide dominated inlet, with a sizable amount of sediment moving in and out. When outgoing tidal flow moves though the constriction formed by the jetties, flow velocities are accelerated. When the water, and any entrained sediment, passes the jetties, flow tends to spread out to the east, west, and south, and naturally loses velocity. When the outgoing tidal waters reach a critical velocity where they can no longer carry the sand, the sand drops out of suspension, which forms the ebb shoal. Essentially, the ebb shoal is a large, semi-circular sandbar extending from the mouth of East Pass that was created by the ebb tide carrying sediments south. East Pass is a highly dynamic inlet system. There are processes spurred by the configuration and location of East Pass, tides, waves, and storms that have resulted in currents running to the east and west that change on a frequent basis. The evidence in this proceeding, which includes the evidence adduced in 19-1844, established, for the period of 1996 through 2007, “a trend of west to east longshore transport, resulting in net gain immediately west of [East Pass] and a significant loss of sand along Holiday Isle east of [East Pass].” The evidence further established that a “drift nodal point” existed at East Pass. Longshore transport at uniform coastal locations is generally in one direction. However, when there are wave events coming from varying angles, and where beach contours are not parallel and uniform, or even linear, it is common for transport reversals to occur. The point at which those reversals occur is referred to as a nodal point. That point can be where east and west transport converges, or where it diverges. The shoreline in the vicinity of East Pass has exhibited “quite a few” nodal points over the past decade, resulting in frequent drift reversals and sand transport to the east and the west. The evidence as to the existence and effect of the East Pass drift nodal point, and its effect on the lateral transport of sand in the area, including the East Pass areas of influence, was substantiated by testimony and other evidence introduced at the final hearing. The testimony and evidence that there is no consistent direction of lateral sand transport in the vicinity of East Pass, and no predominant lateral current transporting sand in a westerly direction, is accepted. Competent substantial evidence in the record of this proceeding includes monitoring data for the eastern beach placement areas from the West Destin Four-Year Post-construction Monitoring Report and earlier annual post-construction reports covering the period from October 2012 to July 2017; data from the Holiday Isle Emergency Beach Fill Two-Year Post- construction Report; historical monitoring data for the area west of East Pass, including the Western Beach Monitoring Report, which covered 2006 to 2017; the Potential Borrow Area Impact Report, which included data from 1996 through 2012; and recent profile data from April 2019. These reports, and the data contained within them, cumulatively provide more than 20 years of data, and demonstrate convincingly that the shoreline to the west of East Pass has been stable or accreting, and the areas to the east are eroded. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches east of East Pass exhibit the following signs of significant and ongoing erosion: extensive dune erosion; exposed sea oat roots; reduced beach elevation; reduced beach width; crenulate2 bays; newly built dune walkovers that replaced old walkovers claimed by erosion; dune walkovers in close proximity to the shoreline, indicating that the shoreline had receded to the walkover; and beach scarping at the shoreline indicating active erosion. Mr. Trammell’s testimony as to the eastern spoil disposal sites was convincing and is accepted. The eastern areas of influence are currently designated to be “critically eroded” by DEP, a designation maintained for more than 10 years. The photographic evidence supports the data collected over time for the beaches east of East Pass, and the persuasive testimony offered by Mr. Clark, Mr. Trammell, Mr. Garis, and Mr. Trudnak (who testified in 19-1844), collectively establishes, by a preponderance of the evidence, that the beaches east of East Pass, including the eastern area of influence and the proposed dredge material disposal sites at Monuments R-17 to R-20.5, except for the area immediately abutting the eastern jetty, are critically eroded, a condition that is influenced by East Pass and its navigational channel, and are “adjacent eroding beaches” as that term is used in section 161.142. The evidence demonstrates that the shoreline of Santa Rosa Island to the west of East Pass has historically been stable. To be sure, as is the case with any shoreline, there will be some areas of erosion and some areas of accretion. After Hurricanes Ivan and Opal, areas of Santa Rosa Island experienced erosion. DEP declared the shoreline to be critically eroded after the 2004-2005 hurricane seasons, which prompted Okaloosa County to commission a study to monitor the health of the Monuments R-1 through R-16 beach segment, a segment that includes Petitioners’ residences. Despite the fact that no post-storm beach restoration occurred in the area, the beach recovered naturally and gained sand following the post-storm recovery. In addition, Santa Rosa Island is known for “beach cusps,” which are crenulate 2 “Having an irregularly wavy or serrate outline.” See “crenulate,” Merriam-Webster Dictionary, https://www.merriam-webster.com/ dictionary/crenulate (last visited February 2, 2020). shapes along the shoreline. Depending on the season and storm conditions, those beach cusps can have a localized erosive effect on the beach, but those tend to be seasonal. They do not negate what the evidence shows to be the overall stable to accretional conditions of the beaches west of East Pass from Monument V-622 to Petitioners’ residences. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches west of East Pass have large dunes; multiple dune lines; tall and thickly vegetated dunes indicating established dune growth; pioneering vegetation indicating active, healthy dune growth and accretion; partially buried signs indicating dune advance; and broad and expansive beaches. Those features are indicative of a stable and accretional shoreline. Mr. Trammell’s testimony as to the western spoil disposal site was convincing and is accepted. At present, the Santa Rosa Island shoreline is not deemed by DEP to be “critically eroded.” Mr. Trammel’s photographs offered in 19-1844 were supplemented by a series of photographs taken from several of the same locations after the passage of Tropical Storm Nestor in October 2019. Those photographs are consistent with a finding that the beaches to the east of East Pass are highly eroded and erosional, and that the beaches to the west of East Pass are not. The photographic evidence supports the data collected over time for the beaches west of East Pass, and the testimony offered at the final hearing, which collectively establish, by a preponderance of the evidence, that the beaches to the west of East Pass are stable and accretional, are not subject to erosion caused by East Pass, and are not “adjacent eroding beaches” as that term is used in section 161.142. Petitioners offered testimony of Dr. Douglas and Dr. Young in an effort to shore up weaknesses in the evidence offered in 19-1844. Their testimony and the evidence discussed therein was largely, if not exclusively designed to demonstrate that the direction of lateral sand transport in the vicinity of East Pass was predominantly east to west, which was the prevailing theme of Petitioners’ argument in 19-1844. The evidence adduced from Dr. Douglas was, in many respects, cumulative of that previously offered by Dr. Walton in 19-1844, and considered in the development of the Recommended Order in that case. For example, both Dr. Walton and Dr. Douglas reviewed and assessed information from the Taylor study, the Morang study, and the CP&E report in developing their opinions. Both agreed that sand placed in proximity to the jetties would tend to stay in place. Both ultimately concluded that sand placed to the west of the East Past west jetty would migrate to the west. Dr. Douglas offered new opinion testimony largely based on the Wave Information Study (“WIS”), which is an estimate of wave height and direction from a location two miles off-shore of East Pass. The data is a mathematical estimate, and does not rely on physical measurements from buoys or wave gauges. The wave estimates were then used as inputs in a model developed by the Coastal Engineering Research Center (“CERC”). Dr. Douglas candidly testified that the CERC model, even with normal input data, involves a substantial degree of uncertainty -- up to an order of magnitude. Adding to that uncertainty is that the CERC model assumes bottom contours and offshore volume calculations that were either inapplicable to the area around East Pass, or unavailable. Dr. Douglas was convincing that the CERC model is a tool commonly used by coastal engineers. His testimony, and the evidence on which it was based, was not unreasonable. However, it was not sufficient to outweigh the evidence introduced in support of the Permit Modification. In particular, and in addition to the evidence and testimony introduced in 19-1844, the testimony of Mr. Clark, whose extensive and direct knowledge, observations, and familiarity with the area, and of the data and information collected over periods of years, is found to be more persuasive regarding the processes and conditions in and around East Pass, and supports a finding, by a preponderance of the evidence, that the area to the east of East Pass constitutes “adjacent eroding beaches,” and that the area to the west of East Pass does not. Similarly, the evidence adduced from Dr. Young was largely cumulative, a fact that resulted in sustained objections to questions eliciting such information. He did provide testimony regarding time-lapse images from Google Earth Engine, and a critique on how to balance a sediment budget, though without providing a budget. As was the case with Dr. Douglas, Dr. Young’s testimony and the evidence discussed therein, was not sufficient to outweigh the more persuasive evidence introduced in support of the Permit Modification that the area to the east of East Pass constitutes “adjacent eroding beaches,” and that the area to the west of East Pass does not. The evidence is persuasive that placing dredged material at R-17 to R-20.5 in Holiday Isle on the eastern side of East Pass would not result in erosion on the western side of East Pass. Dredged material placed in the western beach placement area, and in the “shadow” of the western jetty, will tend to remain in that area. It would take a very long time, if at all, for that material to migrate further to the west. However, some -- but certainly not all -- of the dredged material placed on the eroding beaches to the east of East Pass can be introduced into the ebb shoal and move to the west. In that regard, the Google Earth Engine images depict sand moving across the ebb shoal to the western side of the inlet and attaching at various distances from the west jetty. As such, placement of the dredged material on the eastern beach placement areas would, to some degree, accomplish the goals of allowing sand transport to the western beaches, as was the relief sought in the Petition. The evidence was convincing that depositing dredged material onto the eroding beaches east of East Pass, as authorized by the Permit Modification, will not result in significant adverse impacts to areas either east or west of East Pass, nor will it interfere with the use by the public of any area of a beach seaward of the mean high-water line. Furthermore, the evidence introduced in this case and 19-1844 provide reasonable assurance that the Permit Modification is consistent with section 161.142 and will ensure that net long-term erosion or accretion rates on both sides of East Pass remain equal. Ultimate Findings of Fact The greater weight of the competent substantial evidence establishes that the eastern areas of influence of East Pass, including the beach disposal areas at R-17 to R-20.5, are critically eroded, a condition influenced, if not caused, by East Pass, and constitute East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the western areas of influence of East Pass, including the beach disposal areas at Monuments V-611 to V-622, are stable, if not accreting, and are not East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the placement of dredged material on the eastern side of East Pass will extend the life of the proximate West Destin Beach Restoration Project. The greater weight of the competent substantial evidence establishes that the Corps met the standards for the Permit Modification as proposed for issuance by DEP on November 14, 2016, and August 21, 2019, including section 161.142 and rules 62B-41.003 and 62B-41.005. Evidence to the contrary was not persuasive. Thus, the Permit Modification should be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the November 14, 2018, Permit Modification No. 0288799-006-JN, as amended by the DEP’s August 21, 2019, Notice of Proposed Changes to Proposed Agency Action, for the maintenance dredging of East Pass, subject to the general and specific conditions set forth therein. DONE AND ENTERED this 20th day of February, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2020. COPIES FURNISHED: Joseph Alexander Brown, Esquire Hopping Green & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 (eServed) D. Kent Safriet, Esquire Hopping Green & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 (eServed) Marianna Sarkisyan, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3900 (eServed) Paul Joseph Polito, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3900 (eServed) Jay Patrick Reynolds, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3900 (eServed) Winifred L. Acosta, Esquire United States Attorney's Office Northern District Florida 21 East Garden Street Pensacola, Florida 32502-5676 (eServed) Kathryn Drey, Esquire United States Attorney's Office Northern District Florida 21 East Garden Street Pensacola, Florida 32502-5676 Kenneth G. Oertel, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 (eServed) Timothy Joseph Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 (eServed) Carley J. Schrader, Esquire Nabors Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 (eServed) Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 (eServed) Elizabeth Desloge Ellis, Esquire Nabors, Giblin and Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue At issue in this proceeding is what costs, if any, are recoverable by petitioner as a consequence of its successful prosecution of an appeal from the agency's final order heretofore rendered in the above-styled matter.
Findings Of Fact Background On January 14, 1988, respondent, Key Biscayne Limited partnership, formerly known as Biscayne Beach Hotel Association, Ltd. (the "Hotel") , filed an application with Respondent, Department of Natural Resources (DNR), for a coastal construction control line (CCCL) permit authorizing it to conduct construction activities seaward of the Dade County CCCL on Key Biscayne, Florida. As proposed, the Hotel, which currently owns the Sonesta Beach Hotel on Key Biscayne, sought authorization to construct a nine-story 124-unit habitable addition and a one-story non habitable addition, with understructure parking, to its existing facility. Incident to such construction, the Hotel also sought authorization to construct a deck and jacuzz-type hot tub south of the addition, and authorization to excavate approximately 1,400 cubic yards of fill for the pile foundation and caps, and to deposit such fill seaward of the CCCL. Excavation for the foundation would extend a maximum of 177 feet seaward of the CCCL and placement of the excavated material would extend a maximum of 300 feet seaward of the CCCL. On August 11, 1988, DNR issued a notice of intent to approve the Hotel's application and to is sue a CCCL permit subject to the following special conditions: The issuance of the permit placard shall be withheld pending staff receipt and approval of: Two sets of specifications and final certified construction plans accurately dimensioned with elevation referenced to NGVD. Details of the foundation of the 9-story and single- story addition, pile/pile cap/column connections, column/floor slab and roof slab connections, cantilevered balconies, garage floor slab, breakaway walls, storm drainage and domestic waste disposal, and fences shall be included in the plans. Two sets of certified dimensioned site plans showing the location of the control line, existing sea grape trees, the placement of excavated material seaward of the control line, and species of salt-resistant vegetation. The site plans shall be subject to review and acceptance by the Bureau staff. Evidence that written notice has been recorded in the deed covenants and restrictions for the subject property that: The construction of any future rigid coastal protection structures on the property shall be prohibited. The deed covenants and restrictions shall be recorded in the public records of Dade County. Such deed covenants and restrictions shall be enforceable and shall not be altered unless approved by the Department of Natural Resources. The use of gravel or other similar materials or structures with the potential for becoming aerodynamically propelled missiles shall not be included in the construction of the roof. Salt-resistant vegetation such as sea oats, sea grape, panic grass, salt jointgrass, and/or other approved salt- resistant species shall be planted on the fill area. In addition, the permittee shall irrigate and apply fertilizer as appropriate for the particular species planted until the vegetation is established. A 75 percent survival rate of the vegetations shall be ensured and replanting shall be conducted until a 75 percent overall survival rate is attained and until any sizeable barren portions of the area are covered. The excavated fill material to be placed on the beach shall consist of material compatible in grain size and coloration as the native beach sand and shall come from a source located landward of the coastal construction control line. The main structure of the addition shall not extend further seaward than the projected line of the existing retaining wall located seaward of the existing swimming pool. Petitioner, Key Biscayne Council (the "Council"), filed a timely protest of DNR's action. Essentially, the Council contended that the location of the proposed construction would be seaward of the 30-year seasonal high-water line and, therefore, prohibited by Section 161.053(6)(b), Florida Statues; that the proposed construction would adversely impact the beach-dune system and adjacent properties; that construction of similar projects along the coast would have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline; and that the proposed construction failed to comply with the setback requirements or zoning or building codes of Dade County. The Key Biscayne Council In Its petition for formal hearing, the Council alleged that it was a not-for-profit Florida corporation which had, as one of its purposes, the preservation of the environment of Key Biscayne, including its beaches. The proof at hearing failed, however, to demonstrate that the Council enjoyed corporate status but, rather, demonstrated that it was an association formed in November 1987 to give the residents of Key Biscayne a more effective voice on matters of local interest, including the preservation of the environment of Key Biscayne. The Council is governed by nine individuals who are residents of Key Biscayne. These individuals are elected to their positions by the resident members of the association, who are also registered voters in Dade County. 4/ The Council meets at least once each month, and its meetings are open to the public. The agenda for each meeting is published in the local Key Biscayne newspaper, The Islander, the week before each meeting. Of particular interest to the Council is the preservation and protection of the beaches of Key Biscayne which form an important part of that community's and the Council members' lifestyle. To date, the Council has been a motivating force behind the enactment of Dade County Ordinance No. 89-23 discussed infra, which established the CCCL as the mandatory setback line for new construction on Key Biscayne, as well as efforts to fund a cleanup of the beaches, to establish a vegetation dune system, and to protect the sea turtle population. Here, by unanimous vote of the Council, it elected to contest the propriety of DNR's proposal to approve the Hotel's application to construct the proposed additions seaward of the CCCL. Key Biscayne and the surrounding topography Key Biscayne is the southernmost barrier island in what is now a chain of barrier islands extending southward from Miami Beach. Historically, Miami Beach was connected to some extent with Virginia Key, which lies to the north across Bear's Cut from Key Biscayne. In 1835, however, a hurricane struck the area, breached whatever connection existed between Miami Beach and Virginia Key, and formed what is now known as Norris Cut. The topography of the area was further altered in 1905 when construction of Government Cut, the navigational channel for the Port of Miami, was begun. Construction of that cut severed the southern tip from Miami Beach, and formed what is now known as Fisher Island. By 1927, a jetty had been constructed on the north side of Government Cut that created an effective barrier to any along shore sediment transport to the south. Over time the channel in Government Cut was deepened and jetties on its north and south sides extended. Today, the channel is 42 feet deep and extends two miles into the ocean. The north jetty extends 3,000 feet into the ocean, and the south jetty extends 2,750 feet into the ocean. Key Biscayne, which lies to the south of Government Cut and the other islands, is a sand island, roughly "drum-stick" in shape, formed on a limestone base, with elevations ranging from 5 1/2 to 6 1/2 feet. The northern and southern portions of its eastern shore are dominated by Crandon Park and Cape Florida State park, respectively, with development concentrated in the central portion of the island. It is along this central part of the island that the Sonesta Beach Hotel exists, and where the proposed construction is to occur. Immediately north of the existing hotel lies the Silver Sands Hotel and Sand Dollar Restaurant. To the south of the hotel lies the Sheraton Beach Hotel and Beach Club and, further south, the Key Biscayne Hotel and Villas. 5/ Although Key Biscayne is generally subject to mild weather conditions and a low energy environment, it has been subjected to erosion along its eastern shore, with the more severe erosion occurring along the central portion of its shoreline. Seaward of the northern and southern portions of its eastern shore, sand shoals exist which tend to dampen the force of wave energy that would otherwise be exerted against that stretch of coast line. The center of the island is not, however, accorded similar protection and the consequent concentration of wave energy causes sand to be transported from the center of the island to its outer ends. As a result, the central portion of the island, where the subject development is proposed, has historically eroded at a faster rate than the north or south ends of the island. In September 1984, as a consequence of the severe erosion suffered to the eastern shore of Key Biscayne, Dade County was authorized to place over 411,000 cubic yards of sand along approximately 10,000 feet of shoreline on Key Biscayne, and to construct a terminal structure at the south end of the island. The beach was restored by hydraulically pumping sand onto the beach from an offshore dredge and then redistributing the sand with a bulldozer. The resulting beach is characterized as "plan form," and is expected to assume a natural profile over time by responding to the natural forces of wind and waves. The fill pipes which were used to pump sand onto the beach were removed from the area of the Sonesta Beach Hotel on July 3, 1987, and the reprofiling or redistribution of sand in that area was completed around July 20, 1987. On September 26, 1987, the renourishment project was certified complete. The 30-year erosion projection Section 161.053(6)(b) Florida Statutes, provides that DNR may not issue a permit for construction seaward of the CCCL, except for certain specific structures not pertinent to this case, if the structure is "proposed for a location which, based on the department's projections of erosion in the area, will be seaward of the seasonal high-water line within 30 years after the date of application for such permit." The "seasonal high-water line" is a creature of statute, and is defined by Section 161.053(6)(a), Florida Statues, as "the line formed by the intersection of the rising shore and the elevation of 150 percent of the local mean tidal range above local mean high-water." Here, the seasonal high-water line, which is established as an elevation, calculates to approximately 5.4 feet NGVD, and according to the survey dated August 1, 1987, which was submitted with the Hotel's application, currently derives a line that is approximately 375 feet seaward of the proposed construction. To establish the 30-year erosion projection, DNR proposes to horizontally shift the profile which was depicted on such survey in a landward direction a distance equal to the expected erosion rate over a 30-year period. Ordinarily, DNR would calculate a 30-year erosion projection based on historic erosion rates, referred to as "horizontal change rates" in Rule 16B- 33.024, Florida Administrative Code, by reviewing two or more historical surveys taken over a period of time, and measuring the amount of shoreline recession that had occurred during that period. From that figure, an erosion rate would be derived by dividing the number of years which elapsed over the period of record chosen into the amount of shoreline recession that occurred during that period. The result would be the historic erosion rate which, when multiplied by 30, would establish the location of the 30-year seasonal high-water line. However, where, as here, the beach as been renourished, consideration of the effect and performance of such project must also be considered in making the 30- year erosion projection. Rule 16B-33.024(3)(e), Florida Administrative Code. Accordingly, to determine the expected location of the seasonal high-water line in 30 years in this case, it is necessary to establish a historical shoreline change rate and to evaluate the effect and performance of the beach renourishment project. To establish an appropriate historical erosion rate for the subject site, consideration must be given to both the tidal datum relied upon to obtain the rates, and the time period selected as the period of record for analysis of historic shoreline change rates. With regard to tidal datums, the Department's rule provides that horizontal shoreline change rate values may be obtained from one of several available tidal datums, including mean high-water, mean sea level, and mean low-water. Rule 16B-33.024(3)(a), Florida Administrative Code. However, the preferred and more reliable tidal datum to use in assessing historic erosion rates is the line of mean high-water. The time period used in calculating the historic shoreline change rate is required by DNR's rule to extend from the date of the field work for the applicant's survey, which was submitted as part of the application, to the earliest date for which reliable information is available. Rule 16R- 33.024(3)(b) Florida Administrative Code. The historic shoreline change rate analysis should generally include data from points 3,000 feet on either side of the proposed construction, with the change rate for each point averaged for the time period chosen. Rule 16R-33.024(3)(g), Florida Administrative Code. In the event that coastal or shoreline protection structures exist which have influenced the shoreline data for any of the reference points, such influence must be addressed, and if such influence renders the data unreliable the rate data obtained from that point during the period of influence must be rejected. 6/ Rule 16B-33.024(3)(c), Florida Administrative Code. Historic shoreline change rates for the subject project are properly determined by reference to DNR reference monuments R-101 to R-106, located on Key Biscayne. Monument R-104 is the closest monument to the project site, lying approximately 180 to 200 feet south of the site, with the project lying between monuments R-103 and R-104. To facilitate an accurate determination of historic shoreline change rates, DNR has created the Beaches and Shores Growth Management Data Base (DNR Data Base), which consists of data from primary source maps from various governmental agencies, including the United States Coastal and Geodetic Survey, National Ocean Survey, and United States Geologic Survey. These maps have been digitized relative to the DNR monuments, which are located along- the coast at- approximately 1,000-foot intervals, and the resulting data is used to assess shoreline changes over time. Inherent in these shoreline changes are the effects of natural forces on the shoreline, such as wind, wave height, and temperature. Pertinent to this case, the surveys available in the DNR Data Base prior to 1989 were those of 1851, 1919, 1927, 1935, 1945, and 1962. In or about February 1989, DNR contracted with Florida State University to redigitize maps of Key Biscayne. As a consequence, the accuracy of existing data was enhanced and a new survey, the 1913 United States Coastal and Geodetic Survey Map, was added to the DNR Data Base. The addition of the 1913 survey to the DNR Data Base is significant to this case, since the proof demonstrates that the data derived from the 1919 survey is unreliable and should be disregarded. Accordingly, the surveys that may be reasonably relied on in this case are those of 1851, 1913, 1927, 1935, 1945, and 1962. In selecting the appropriate period to determine the historic change rate in this case, several factors should be considered. First, in 1926 a hurricane, which came very close to Key Biscayne, resulted in severe damage to the beach. This storm was reported as at least a 100-year storm event, and is the major storm of record for the area. The 1926 storm, as a naturally occurring event, should be taken into consideration in arriving at an historic erosion rate, but should not be allowed to bias the data. Accordingly, any survey immediately preceding it should not ordinarily be used as a starting point for determining an historic erosion rate, because it would overestimate the historic change rate. Similarly, the immediate post-storm survey of 1927 should not be used as the starting point for determining the historic change rate, since this data would overestimate the effects of the post-storm rebound (accretion), but ignore the erosion caused by the 1926 storm and artificially lower the erosion rate. Finally, the 1962 survey should be the most recent survey used to establish an historic erosion rate, since it marks the end of the predevelopment phase of the study. In the mid-1960's, shoreline structures (seawalls) were erected along portions of the coast, and a beach renourishment project was carried out at Crandon Park in 1969 resulting in filling at DNR Monument R-101. These events render post 1962 data unreliable in assessing an historic change rate. Here, the proof demonstrates that the appropriate time period for analyzing the historic change rate is 1851 to 1962. Based on an analysis of the historic change data for such period, the appropriate historic erosion rate for the project site is -2.3 feet per year. In reaching the foregoing conclusion, the Council's contention that pre-1919 survey data should be rejected in deriving an historic change rate because the construction of Government Cut had, by 1927, interrupted a littoral supply of sand in the neighborhood of 200,000 to 400,000 cubic yards of sand to the south has not been overlooked. However, the more credible proof demonstrates that the littoral transport of sand along this area of Florida's coast is approximately 10,000 cubic yards per year, and that little of that sand ever reached Key Biscayne. Accordingly, the construction of Government Cut had little, if any, impact on Key Biscayne. Also, notable to this conclusion is the fact that an analysis of the historic change rate from 1913 to 1962 calculates an historic erosion rate of -2.5 feet per year, an insignificant difference from that calculated for the period of 1851 to 1962, and the existence of an erosional trend at the central portion of Key Biscayne prior to the construction of Government Cut. Following the establishment of an historic erosion rate, the next step in assessing the expected location of the seasonal high-water line in 30 years in situations where, as here, the beach has been renourished, is a consideration of the effect and performance of such renourishment project. The importance of this analysis cannot be gainsaid, since a beach nourishment project may behave differently than the natural beach, as the nourishment may erode faster or slower than the natural beach or it may accrete. Factors which may cause a beach nourishment project to behave differently than the natural beach include project design, such as the length and width of the project, the seaward slope of the fill material, and the nature of the fill material; and, natural and manmade factors, such as offshore shoals, jetties, and breakwaters. The length and width of a project is very significant in terms of how long the project will remain in place. A project which is short in length will have a tendency to erode at a faster rate than a long project or the natural beach. This loss, referred to as "end losses" or "spreading-out losses," is not necessarily a loss of material from the system, but rather a redistribution of the sediment to the outer edges of the nourishment project. These spreading-out losses are caused by the project's exposure to waves that occur from offshore. As a nourishment project is exposed to waves, it reacts to the force of those waves by spreading out in an alongshore direction, resulting in a reduction in the overall width of the project. A longer project, such as the nourishment project in the existent case, will erode from the ends more slowly than a small project and, consequently, maintain its width and life for a greater period of time. The seaward slope of the nourished beach will also affect the project's performance. When a nourishment project is constructed, the seaward slope of the beach may initially be steeper than the slope which existed prior to nourishment, and may be irregular in shape compared to the natural shoreline. During the slope adjustment process, gravity and waves act on the shoreline to create a more natural slope and shape. During this process, the upland portion of the beach, as well as any irregularities in the shoreline, will experience shoreline recession, with the material being redistributed along shore and offshore. This adjustment process, and the effects it will have on the project's performance, may extend over several years after nourishment is completed. The grain size of the material used in the nourishment project can also affect the performance of the project. If the sediments used to construct the nourishment project are essentially of the same grain size and quality of the sediments which existed on the natural beach, then the nourished beach can be expected to perform, after initial slope adjustment, in much the same manner as the natural beach.. Natural features or manmade structures which may affect the performance of the nourishment project include the shoreline and offshore characteristics of the area that can increase or slow the rate at which the material may otherwise erode, or a groin or natural feature that would tend to confine the project and prevent or minimize spreading-out losses. Here, the nourishment project is a long project, approximately 10,000 feet in length. This factor will contribute favorably to the project's longevity. The material used in the nourishment project is very similar to that which existed on the natural beach. Therefore, after initial slope adjustment, the nourished beach should perform in a manner similar to the natural beach. Finally, the portion of the beach fronting the hotel is bordered to the north and south by areas which are historically stable or accreting. This factor should stabilize the ends of the project, and reduce the alongshore spread which would otherwise occur. In sum, after the slope and shoreline have adjusted to a natural profile and shape, the nourishment project should perform in a manner very similar to the pre-nourishment beach. While the nourishment project should ultimately perform similar to the pre-nourished beach, little time has elapsed since completion of the project for slope and shoreline adjustment or to demonstrate stabilization. Here, the nourished beach was profiled by man (bulldozers), with the reprofiling in she area of the hotel being completed around July 20, 1987. The Hotel submitted its application for the subject permit on January 14, 1988, together with a survey of the area dated August 1, 1987. Based on this survey, DNR proposes to establish the 30-year seasonal high-water line by horizontally shifting the profile depicted on the survey in a landward direction. To predict the performance of the beach nourishment over time, the Hotel offered the results of an analytical computer model run by Dr. Robert Dean, an expert in coastal and oceanographic engineering and coastal processes. That model predicts spreading-out losses," and considers site specific factors that will affect the nourishment project, including pre-existing shoreline conditions, size and quality of the beach fill, volume, length of the project, conditions at the end of the fill, and the affect of wave forces on the coast. The wave data relied upon by Dr. Dean to drive his model was derived from a wave gauge located just north of Government Cut. The wave characteristics at Key Biscayne are, however, dissimilar to those experienced off Miami Beach due to the wave damping characteristics of the offshore area of Key Biscayne. While dissimilar, Dr. Dean opined that the data from Miami Beach could be reliably used as a conservative estimate of the force of waves at Key Biscayne, and that his model would, thereby, present a worst case scenario or prediction of spreading-out loss of sediment on the nourished beach. Based on such analysis, Dr. Dean predicted that shoreline recession on the nourished beach, attributable to spreading-out losses, would amount to 28 feet over the next 30 years, most of which would occur in the early years of the project. When combined with the historic change rate of -2.3 feet per year for 30 years, Dr. Dean calculates that 97 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 102 feet landward of the seasonal high-water line. DNR also made an erosion projection to predict the performance of the beach nourishment over time. In its analysis, DNR relied on monitoring data Dade County had gathered regarding the performance of the project. Such data measured, at various monuments, the amount of accretion or erosion that had occurred within the first 6 months of the project, and the amount of accretion or erosion that had occurred over the next 12 months of the project. The data was not, however, complete for all monuments within 3,000 feet of the hotel, and was otherwise unpersuasive for reasons hereinafter discussed. In performing its analysis, DNR chose to focus on one monument, PL-5- DC, which is located 200 feet north of the hotel. The data at that monument showed that within the first six months the mean high-water line (MHWL) had receded 22 feet, and that over the next 12 months it had receded an additional 10 feet. Assuming a constant rate of erosion based on those two time points, DNR concluded that initial slope adjustment or stabilization would occur within four years, and that shoreline recession on the nourished beach over that 4-year period would amount to -41.6 feet. When combined with an historic change rate of -2.3 feet for the next 26 years, DNR's methodology calculates that 101.4 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 99 feet landward of the seasonal high-water line. 7/ While Dr. Dean's model and DNR's analysis of Dade County data may yield similar results, neither methodology is, under the circumstances of this case, persuasive proof of how the nourishment project will perform or where the 30-year seasonal high-water line will be located. Here, the proof demonstrates that Key Biscayne enjoys a low-energy environment, and that the only force of significance ordinarily exerted along its coast occurs during the winter months when northeasters impact its shoreline. It is this wave energy that would, under normal circumstances, mold or adjust the seaward slope and shoreline of the nourishment project until it reached a more natural slope and shoreline, and after which the rate of erosion would be consistent with the historic change rate. However, since completion of the nourishment project, Key Biscayne has enjoyed unusually mild weather conditions, and the usual winter storms have not occurred. Consequently, the nourishment project has yet to be subjected to the forces of nature which can be reasonably expected to ultimately mold or adjust its seaward slope and shoreline. DNR's conclusion that the nourishment project will reach stability within four years, based on its analysis of the meager data provided by Dade County, is simply unpersuasive. That data, which appears on page 6 of DNR's exhibit 5, showed that at monument PL-5-DC the MHWL had receded 22 feet in the first six months of project existence and 10 feet over the course of the next 12 months. Based solely on these two measurements, DNR calculated a straight line decreasing rate of erosion to conclude that within four years the project would erode at the historic change rate. DNR's methodology and assumption, based on only two points of measure within the first 18 months of project existence, is not credible or persuasive proof of how the nourishment project will perform, and is rendered even less persuasive In view of the mild weather that affected Key Biscayne during such time period. Dr. Dean's opinion, based on his analytical computer model, which assessed shoreline recession on the nourished beach attributable to spreading- out losses, is likewise unpersuasive proof of how the nourishment project will perform. While Dr. Dean considered spreading-out losses and the historic change rate in reaching his conclusion, he failed to address offshore losses of sediment that will occur as the seaward slope of the project adjusts to a more natural profile. Here, the proof demonstrates that the seaward slope was constructed much more steeply than the natural slope, and that in the first 18 months of project existence significant quantities of fill have been lost offshore. At monument PL-5-DC the slope remains steep. Notably, while Dr. Dean calculated a spreading-out loss for the life of the project of 28 feet under what he termed a worse case scenario of wave height, the MHWL at the nourishment project has already receded 32 feet, under mild weather conditions, in the first 18 months of existence. Compared with Dr. Dean's and DNR's conclusions, the Army Corps of Engineers (Corps), which designed the nourishment project, calculated a loss rate of approximately 22,000 cubic yards of fill each year. Should the project perform consistent with the Corps' estimate of project life, it will have receded to the Dade County erosion control line within 10 years, and over the course of the next 20 years to a point such that the proposed addition would lie seaward of the 30-year seasonal high-water line. Under the circumstances of this case, a calculation of the probable location of the 30-year seasonable high-water line, based on the Corps' estimate of the performance of the nourishment project, is more compelling than that of Dr. Dean or DNR. 8/ Impact on the beach and dune system Where, as here, construction is proposed seaward of the CCCL, Section 161.053(5)(a)3, Florida Statutes, requires DNR to consider the potential impacts which the location of the proposed structures or activities may have on the beach-dune system. That system includes the beach, the dunes, and the overwash areas, which are interrelated by the sediment erosion and accretion process. 9/ DNR's analysis of potential impacts to the beach-dune system includes both short-term and long-term impacts of proposed construction. Short-term impacts are those which may arise during construction of a project and are often a concern in sensitive areas, such as those areas characterized by natural dune features and dune-stabilizing vegetation. Long-term impacts of a project may include increased flooding caused by a lowering of dunes and increased erosion caused by a lowering of dunes or by a net loss of sand from the beach-dune system. Impact to the beach-dune system can also be caused by increased pedestrian traffic associated with the construction of a major habitable structure. Pedestrian-caused impacts are, however, a potential concern only in areas where there are dune features and stabilizing vegetation which could be destroyed. In the absence, of these dune features, pedestrian traffic has no significant impact to the beach-dune system. Here, the site of the proposed construction does not have any prominent dune features or stabilizing dune features or stabilizing dune vegetation. In fact, the site is the present location of an asphalt parking lot, which extends 40 feet seaward of the footprint of the proposed construction. Construction of the project will not result in any net excavation of material. Since dunes will not be lowered and there will be no net loss of material, there will be no increased flooding or erosion caused by the project. Under such circumstances, the proof demonstrates that there will be no long-term or short-term impacts to the beach-dune system occasioned by the project. Adverse cumulative impact on the beach-dune system Section 161.053(5)(a)3, Florida Statutes, also requires DNR to assess the potential cumulative impacts to the beach-dune system that may be caused by construction seaward of the CCCL. Here, the proof demonstrates that the proposed project, either singularly or in combination with other existing or similar projects, would not have any adverse impact to the beach-dune system. Impact on adjacent property Construction activities proposed for a location seaward of the CCCL are also analyzed by DNR to assess their impact on adjacent properties. Rule 16B-33.007(2), Florida Administrative Code. Such analysis includes a determination of whether construction activities will be confined on-site; whether a lowering of dunes will occur such that increased flooding on adjacent property could occur; whether elevations on the proposed construction site will be lowered such that flooding of adjacent property could occur; and whether proposed construction, in the event of a major storm event, would potentially increase erosion on adjacent property. Here, the proof demonstrates that construction activities will be confined on site, there will be no lowering of the dunes or elevations, and that there will be no net excavation of materials such that any increased risk of flooding or erosion could occur to either the project site or to adjacent properties. Interference with public beach access One purpose of CCCL permitting is to preserve public beach access. Sections 161.053(1) and (5)(e), Florida Statutes. "Public access" is defined as "the public's right to laterally traverse the sandy beaches of this state where such access exists on or after July 1, 1987." Section 161.021(1), Florida Statutes. The public presently does not have east-west access to the beach at the Sonesta Beach Hotel, and is not entitled to such access by law. The Hotel does not propose to hinder existing north-south (shore parallel/lateral) beach access, and the proposed project would not impede such access until the seasonal high-water line receded to the project. 10/ While the project might limit lateral access at times once the seasonal high-water line recedes, such impact would be de minimis in the instant case since construction of the project would not be seaward of existing structures on the Hotel's property. Compliance with local zoning requirements In order for a permit application to be deemed complete, an applicant must provide DNR with written evidence, provided by the appropriate local governmental-agency having jurisdiction over the activity, that the proposed development does not contravene local setback requirements or zoning or building codes. Rule 16B-33.008(2)(c), Florida Administrative Code. By letter dated February 10, 1988, the Hotel submitted to DNR a letter from Metropolitan Dade County's Department of Building and Zoning which indicated that the site plan for the proposed project was consistent with existent regulations. On April 21, 1988, DNR deemed the Hotel's application complete. While not contesting the consistency of the proposed project with local regulations at the time the Hotel's application was deemed complete, the Council contends that subsequent events have rendered its proposal inconsistent with such regulations. In this regard, the proof demonstrates that the Hotel received site plan approval for the proposed addition from Dade County in November 1988, but that its application for a bull ding permit was denied and returned to the Hotel for further action. To date the Hotel has not sought to further process such application with the County. On April 4, 1989, Dade County enacted Ordinance No. 89-23, effective April 14, 1989, relating to construction seaward of the CCCL on Key Biscayne. Pertinent to this case, the ordinance prohibits the new construction of major habitual structures and severely restricts the construction of nonhabitable structures seaward of the CCCL, absent a variance. At hearing, no proof was offered that any portion of the proposed project would qualify for a variance, or that the nonhabitable portion of the project complied with the requirements of the new ordinance. 11/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the Hotel's application to construct and excavate seaward of the CCCL. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of September 1989. WILLIAM J. KENDRICK 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 5th day of September, 1989.
Findings Of Fact South Palm Beach Utilities Corporation is a private provider of water and sewer services in Palm Beach County, Florida. It is presently operating within a specified service area according to a certificate issued by the Public Service Commission. The utility is seeking to expand its service area north of the present boundaries, and has filed various notices of its intention with the Public Service Commission. As to some of these notices, no protests were filed, and the utility has commenced preliminary engineering planning activities to provide water and sewer lines to those areas. Palm Beach County has filed timely protests with respect to four off the parcels to which the utility is proposing to extend its certified service area. These four properties have been called the "Atlantic," "Mitchell," "Snow," and "Benson" properties. In its notices, the utility described the "Atlantic" property as follows: Tracts 49 thru 56 inclusive; 73 thru 88 inclusive and 105 thru 120 inclusive, in Section 21; and Tracts 9 thru 24 inclusive; 41 thru 56 inclusive; 73 thru 88 inclusive; and 105 thru 120 inclusive, in Section 28, all as shown on Palm Beach Farms Company Plat No. 1, as recorded in Plat Book 2, Pages 26, 27 & 28, Public Records of Palm Beach County, Florida, together with the West Half of the East Half of Section 21 and the West Half of the East Half of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida. EXCEPTING therefrom the dedicated public right of ways of record, as shown on the said Palm Beach Farms Company Plat No. 1, and the Plat of Delray Roads (containing 10.9500 acres) and the following Lake Worth Drainage District right of ways: LWDD Canal L-34: Beginning at a point where the Southerly line of a public right of way, 120.0 feet wide known as Del Ray West Road (State Road 806) intersects the North & South Quarter Line of Section 21, Township 46 South, Range 42 East, Palm Beach County, Florida, said point being S 1 degree 54' 34" E, 34.13 feet from the North Quarter Corner of said Section 21; run thence along said Quarter Section Line S 1 degree 54' 34" E, 90.02 feet; thence N 89 degrees 18' 11" E, 1342.63 feet to the East line of the West Half of the East Half of said Section 21; thence along said East Line N 2 degrees 06' 02" W, 90.03 feet to the South Line of said Del Ray West Road; thence along said South Line S 89 degrees 18' 11" W, 1342.33 feet to the Point of Beginning, Containing 2.7737 acres; LWDD Canal L-35: The South 10.0 feet of the West Half of the Northeast Quarter; the North 80.0 feet of the West Half of the Southeast Quarter; the South 15.0 feet of the Northwest Quarter (less the West 55.0 feet); and the North 75.0 feet of the Southwest Quarter (less the West 55.0 feet), in Section 21, Township 46 South Range 42 East, Palm Beach County, Florida, Contain- ing 8.2207 acres; LWDD Canal L-36: The South 15.0 feet of the West Three-Quarters of Section 21 (Less the West 55.0 feet); and the North 75.0 feet of the West Three-Quarters of Section 28 (less the West 40.0 feet); all in Town- ship 46 South, Range 42 East, Palm Beach County, Florida, Containing 8.2672 acres; LWDD Canal L-37: The South 40.0 feet of the North Half of the West Three-Quarters; and the North 50.0 feet of the South Half of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida, (Less the West 40.0 feet Thereof), Containing 8.1733 acres; LWDD Canal L-38: The South 105.0 feet of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida (less the West 40.0 feet thereof), containing 9.6120 acres; and LWDD Canal E-3: The West 55.0 feet of the South Half, and the West 55.0 feet of the South 664.91 feet of the North Half of Section 21; and the West 40.0 feet of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida, con- taining 9.2135 acres. Containing a net acreage of 816.1290 acres. The utility described the "Mitchell" property as follows: All of Tracts 65 to 128 inclusive, Section 29, Township 46, South, Range 42 East, (less 30.59 acres sold to Florida State Turnpike Authority and more particularly described in Deed Book 1104, Page 577), The Palm Beach Farms Co. Plat No. 1, according to the Plat thereof on file in the Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, recorded in Plat Book 2, Pages 26 to 28. The "Snow" Property is described as follows: The North half of Sections 31 & 32, Town- ship 46 South, Range 42 East, Palm Beach County, Florida, and also known as Tracts 1 through 60, Block 71 and Tracts 1 through 64 of Block 70, Palm Beach Farms Company, Plat No. 3, as recorded in Plat Book 2, Page 52, Palm Beach County, Florida. At the hearing, the utility amended its notice with respect to the "Snow" property to withdraw its intention to provide service to the north half of Section 32, or that property east of Lyons Road. As to the property west of Lyons Road, being the north half of Section 31, the utility maintains its intention. The "Benson" property has been described by the utility as follows: Tracts 65 through 70, 91 through 102, and 123 through 128, Block 70, Palm Beach Farms Company, Plat No. 3, Plat Book No. 2, as recorded on Page 52 wholly within the South Half of Section 31, Township 46 South, Range 42 East, Palm Beach County, Florida. [This finding is determined from a stipulation of the parties as stated on the record at the final hearing, and from Exhibit 1.] The South Palm Beach Utilities Corporation is a fit provider of water and sewer service. No issue has been raised with respect to the quality of the service provided by the utility, and it is under no citations from any government agency. The utility has the financial integrity and engineering capability to provide service to the four properties involved in this proceeding. With respect to each of the four properties, the utility has provided the notices required by statute. Extension of the utility's service area to include the four properties would not result in a duplication of any existing facilities. No other utility is providing service to the area. In its long-range plans, the County envisions providing service to the area, but it does not provide service now, and would not be in a position to provide service for at least three to five years. The owners of the four proporties have proposed developments which would require provision of water and sewer service. [This finding has been determined from stipulations stated by the parties on the record at the final hearing.] In accordance with the "Local Government Comprehensive Planning Act of 1975" (Florida Statutes Section 163.3161, et seq.), Palm Beach County has promulgated a comprehensive plan which includes a "sewer, potable water, drainage and solid waste element" and a "land use plan element." The land use element of the comprehensive plan provides that the areas where South Palm Beach Utilities Corporation is seeking to expand its territory will be set aside for low density development. The County contends that expansion by the utility into these areas would allow for a level of development which is not in harmony with the land use element of the comprehensive plan. The evidence does not support this contention. No specific evidence was presented as to development densities proposed by developers, and it does not appear that allowing the utility to expand its service area would as a factual or legal matter allow for development of any kind. [This finding is determined from the testimony of the witnesses Garbrick and King, and from Exhibits 3, 4 and 5.] Extension of the South Palm Beach Utilities Corporation service area into the four properties at issue would conflict with the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan. Under this element of the comprehensive plan, which is in harmony with an overall management plan to treat wastewater pollutants that the County has developed in accordance with Federal funding requirements ("201 Plan"), the County envisions that it would provide sewer service to the "Atlantic" and "Mitchell" properties through a central wastewater treatment facility. Plans for providing such service have been made on a long-range basis, and the County is in the process of refining the plans so that it can obtain Federal funding. Removal of the "Atlantic" and "Mitchell" tracts from the area that the County proposes to serve through the central facility would not be in accordance with the "201 Plan." Removal of the properties would reduce the service area of that central facility, and could affect the size of the central facility, and funding. Removal of the properties would furthermore be contrary to the plans because of the introduction of a wastewater treatment facility other than the central facility. Both the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan and the "201 Plan" are long range. The County is not presently prepared to offer service to the properties at issue, and will not be prepared to do so for some time. This finding is determined from the testimony of witnesses Garbrick and King, the stipulation of the parties stated on the record at the final hearing, and Exhibits 2, 3 and 5.] While the evidence establishes that extension of the South Palm Beach Utilities Corporation's service area would on its face conflict with the County's comprehensive plan, the evidence does not establish that the conflict would adversely affect the plan. The evidence does not reveal that provision of services by facilities other than the County's central system would render the central system less feasible. While it was speculated that the central system might need to be reduced in size as a result, and that the rate base for it would be lessened in an unspecified amount, no competent evidence to these effects has been presented. [This finding is determined from the record as a whole.]
The Issue The issue for determination is whether the Town of Indian River Shores is entitled to a coastal construction control line permit to construct a beach access seaward of the coastal construction control line in Indian River Shores, Florida.
Findings Of Fact The Town of Indian River Shores (Town) is an incorporated municipality located on a five-mile stretch of the Atlantic Ocean in Indian River County, Florida. The Town has a population of approximately 2,700 residents. The Town's Public Safety Department has the combined functions of law enforcement, fire protection, and life support (lifesaving). All of the Officers of the Public Safety Department are cross-trained and cross-designated as police officers, firefighters, and emergency service specialists who are either paramedics or emergency medical technicians (EMTs). The Officers are on eight-hour shifts; each shift has approximately four to five Officers on duty, i.e., a police officer, a firefighter, a paramedic, and an EMT. When fully staffed, the Public Safety Department consists of 25 Officers. Because of the small number of Officers and their varied duties, restrictions and limitations are placed on their deployment. One of the vehicles used by the Public Safety Department in the performance of duties is an all terrain vehicle (ATV). The Public Safety Department has one ATV which is used on the beach for patrol and rescue purposes and for moving rescue and lifesaving equipment to and from the beach. In order to access the beach, the Public Safety Department must travel across the dune, primarily through private property (Corrigan Beach) located approximately 3.4 miles from the office of the Public Safety Department. The Town determined that this location was unsatisfactory for beach access due to the property being offered for sale, the great distance of the property from the Public Safety Department's office, and the dune being breached each time the ATV is taken onto the beach. The Town determined, however, that Beachcomber Lane, a public street within the Town, was the best choice for beach access and entry by the Public Safety Department. Beachcomber Lane is approximately 1,000 feet in total length and extends from Highway A1A to the bluff of the Atlantic Ocean. The Pubic Safety Department is located approximately 1,500 feet from Beachcomber Lane. The residents of Beachcomber Lane include Peter Broom, Jeremy R. Geffen, and Duane Jackson. At various times, the Public Safety Department has also used Beachcomber Lane as an access to the beach on emergency bases. Currently, a public raised wooden walkway, with steps, leads over the dune and onto the beach at the Atlantic Ocean end of Beachcomber Lane. In order for the Public Safety Department to obtain beach access by way of Beachcomber Lane, an access ramp will have to be constructed seaward of the coastal construction control line (CCCL). Such construction requires, among other things, a permit from the Department of Environmental Protection (DEP). To design and present the plan to the DEP for a proposed beach access by way of Beachcomber Lane, the Town obtained the services of Coastal Technology Corporation (Coastal Technology), an engineering firm. On July 24, 1996, Coastal Technology filed an application on behalf of the Town with the DEP for a permit to construct a beach access ramp seaward of the CCCL. The application process included the submission of detailed drawings and other documents required by DEP. In the application, Coastal Technology described the construction, in pertinent part, as follows: 6. The proposed work consists of the removal of Brazilian Pepper . . . and installation of a 100 foot (approximate) long, 10 foot wide stabilized emergency access ramp. To minimize the impact to the existing native vegetation, the proposed emergency access ramp will be located approximately 8 feet from the north Right-of-Way within the area of the existing Brazilian Peppers. . . . A 2-inch layer of washed concrete sand will be placed between the limestone and paver blocks for a proper leveling of the previous paver blocks. The paver blocks will be TURFSTONE . . . which . . . have been permitted by DEP at other locations. . . . The openings in the TURFSTONE will be filled with excavated beach sand from the proposed access ramp footprint. Any remaining sand . . . will be placed at the seaward end of the proposed access ramp. To mitigate for any potential impact to native vegetation, 6 sea grapes will be installed . . . and any sea oats removed during excavation will be kept alive and replanted within those areas void of sea oats. Three 6-inch by 6-inch pressure treated posts will be installed with a chain fence. A locking chain fence will be used to prohibit the general public from accessing the beach through the emergency access ramp. In the application, Coastal Technology presented the justification for the construction, in pertinent part, as follows: 7. The proposed access ramp at Beachcomber Lane is specifically for the use by the Town of Indian River Shores for emergency access to the beach. The access ramp will have a locking chain only accessible by the Public Safety Department and has been designed to accommodate four-wheel drive patrol and EMT vehicles. . . . Beachcomber Land [sic] site was chosen by the Town because of : 1) the relative stability of the shoreline at that location; and, [sic] 2) accessibility from the Indian River Shores Town Hall which is on the west side of A1A across from Beachcomber Lane. The application indicated that the proposed beach access ramp was being constructed for emergency access to the beach. However, prior to the filing of the application, both emergency and routine patrol access by the Public Safety Department were discussed as uses for the access ramp at public meetings by the Town's public officials in which the subject of the access ramp was brought up. Such use for the beach access ramp was contemplated by the Town from the very inception of the plan for the access ramp. Routine patrol is defined by the Public Safety Department to be patrolling approximately every other day for one or two hours. By notice dated August 7, 1996, the DEP requested public comment on the Town's application for the CCCL permit. By letter dated August 21, 1996, residents of Beachcomber Lane, including Mr. Broom, Mr. Geffen, and Mr. Jackson, provided the DEP with their comments on the Town's application. On September 3, 1996, the Town's application for the CCCL permit was considered complete by the DEP. On November 6, 1996, at the request of DEP, the Town conducted a public meeting to obtain public comments regarding the proposed beach access ramp. The residents of Beachcomber Lane were notified of the public meeting, and among the residents attending the meeting were Mr. Broom, Mr. Geffen, and Mr. Jackson. At the public meeting, the Town clearly stated that the proposed beach access ramp would be used by the Public Safety Department for both emergency and routine patrol purposes with the ATV. Also, the Director of the Public Safety Department indicated that, based upon information collected regarding criminal activity and suspected criminal activity along the beach, routine patrol was needed.2 The application process culminated in the issuance of a Final Order by the DEP on November 27, 1996, granting the CCCL permit, with special permitting conditions in addition to the standard conditions. The CCCL permit granted by the DEP was Permit No. IR-507. The proposed beach access ramp to be constructed is approximately 100 feet in length and 10 feet in width. The construction will utilize turf blocks which permit grass and foliage to grow through the blocks on the access-way. A provision of the DEP Final Order requires the removal of exotic plants (Brazilian Pepper), which are not native plants, and the replanting of native vegetation adjacent to the access-way. On December 6, 1996, public notice of DEP's issuance of the CCCL permit to the Town was published in the Town's local newspaper. The Town agrees to abide by the special conditions, as well as the standard conditions, to the issuance of the CCCL permit. The beach access ramp on Beachcomber Lane will be used by the Town's Public Safety Department for public service purposes, including emergency rescue, training, and routine patrol. Beachcomber Lane is the appropriate location for the beach access ramp. The DEP has determined that the construction of the beach access ramp meets all the requirements of the DEP for the issuance of the CCCL permit. The DEP has determined the proposed beach access ramp to be a minor structure. The construction of the proposed beach access ramp will cause no significant adverse impact or cumulative impact on the beach dune system. The design of the proposed beach access, with the conditions added by the DEP, minimizes adverse impact of the access ramp. Native vegetation will be maintained and replenished around the proposed beach access ramp. The proposed construction of the beach access ramp will not result in a significant adverse impact to the beach and dune system. No net excavation in the sandy soils seaward of the control line will result from the construction. No structurally induced scour will result from the construction because the proposed structure is designed to break- away during a storm. The potential for wind and waterborne missiles during a storm is minimized by the construction. Public access to the beach is not interfered with by the beach access ramp. The construction of the beach access ramp will occur in a nesting habitat of the marine turtle, i.e., loggerhead, leatherback and green turtle. The DEP addressed protection of the nesting area through one of its special conditions to the issuance of the CCCL permit. The special condition included "no construction, operation, transportation or storage of equipment or materials seaward of the dune crest during the marine turtle nesting season" which is March 1 through October 31 of each year. With this special condition, the construction, itself, will have no adverse impact on the marine turtle or the turtle nesting. The Town agrees to abide by this special condition.3 The access ramp, itself, will have minimal impact on the marine turtles and will not cause a "take" of the turtles. Furthermore, the use of the ATV by the Public Safety Department will have no adverse impact on the marine turtles or the turtle nesting. At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Town of Indian River Shores the Coastal Construction Control Line Permit No. IR-507, with the special conditions as may be required by the Department for the protection of marine turtles. DONE AND ENTERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1997.
The Issue The issue for determination at the final hearing was whether the Petitioner Blaha possessed the requisite standing to maintain this action and if so, whether the Applicant Aquarina Developments, Inc., established by a preponderance of the evidence entitlement to a permit from the Coastal Construction Control Line ("CCCL") which would authorize construction of the following: (1) twelve above-ground balconies extending five feet over the CCCL; (2) two roof overhangs extending approximately one foot over the CCCL; (3) two dune walkovers and four decks providing elevated beach access; and (4) a temporary fence extending no more than five feet beyond the CCCL. At the final hearing, the Respondent Aquarina Developments, Inc., (hereafter "Aquarina" or "Applicant") offered Respondent's Exhibits 1-16, which were admitted into evidence. Edward Fleis, Howard J. Teas, Bert Leltz and Ross Witham testified on behalf of the Respondents. Peter Pritchard, Rob Lee and Georges Blaha testified for the Petitioner. Additionally, public comment was taken as provided at Section 120.57(1)(b)(4), Florida Statutes. A Proposed Recommended Order has been submitted by the Respondent Aquarina Developments, Inc. To the extent that the proposed findings submitted by Respondent are not reflected in this Order, they are rejected as unsupported by the weight of credible evidence or as being immaterial to the results reached.
Findings Of Fact By application No. 775-020.61 filed on July 1, 1981, Respondent Aquarina requested a coastal construction permit for construction of portions of twelve cantilevered balconies, two roof overhang sections, a temporary construction fence, four elevated wooden decks, and two dune crossovers, all seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida. The purpose of the proposed structures is to enhance utilization of the beach by residents of Aquarina's PUD located between the Atlantic Ocean and Mullet Creek, a tributary of the Indian River in South Brevard County, while at the same time inhibiting the deleterious effects of unrestrained pedestrian and vehicular access across the beach dune on the property. Respondent Aquarina's project is located on the barrier islands separated from the mainland by the Indian River, thirteen miles south of Melbourne and five miles north of Indian River County. Aquarina proposes to develop a condominium community approved as a PUD by Brevard County, with a projected population of 3,400 persons including 1,600 residential units, a commercial area, and 500 hotel rooms. The project includes at least two condo- mini urn buildings located entirely landward of the CCCL except for the following specific portions: Twelve cantilevered balconies ex- tending approximately five feet beyond the CCCL but not touching the ground; Two roof overhang sections extending approximately one foot beyond the CCCL; Two beach-dune walkover structures to be constructed a maximum of seventy- five feet seaward of the CCCL, which are to provide controlled beach access; Four elevated wooden observation decks constituting integral parts of the walkover structures; A temporary construction fence extending no more than five feet beyond the CCCL. On or about November 20, 1981, the Department indicated its intent to recommend to the Executive Director the issuance of the Applicant's coastal construction permit. After the granting of a requested extension of time, Petitioner Blaha filed objections and a Petition for the Initiation of Formal Proceedings under Section 120.57, Florida Statutes. The Petition raised three issues: Whether construction of the proposed minor structures seaward of the CCCT would harm sea turtles inhabiting the area at issue; Whether a new CCCL should have been set based on changing conditions in the area; Whether the additional shading caused by the proposed structures would harm the dune vegetation system. At the beginning of the hearing, the Hearing Officer heard argument and received evidence on the issues raised by the Motions to Dismiss filed by the Department and the Applicant. The Respondent's Motions raised three issues: Whether the Petitioner had standing to initiate this cause; Whether the alleged impact that the Applicant's proposed coastal construction would have on sea turtles lies within the jurisdiction of the Department and the Hearing Officer under Chapter 161 of the Florida Statutes; and Whether the exact configuration of the CCCL is a proper subject for consi- deration at a hearing challenging the proposed issuance of a coastal construction permit. Petitioner Blaha admitted that he did not live on the beach at issue and in fact lived on the west side of State Road A1A, three miles to the north of the Applicant's proposed project. The Petitioner stated that he was the Director of the Space Coast Branch of Friends of Animals, an environmental organization concerned about wildlife, although not representing the organization in this proceeding, and that he had a general interest in protecting the beach from erosion, a problem affecting everyone on the barrier island. In response to the argument that Petitioner Blaha had no special interest differing in kind from the interests of the general public, the Petitioner alleged that he runs on the beach and observes the sea turtles, arguing that this evinces a more than average interest in protecting the beach and its wildlife. The Hearing Officer also heard argument on whether the Department has jurisdiction to consider potential impacts on the nesting habitats of sea turtles from proposed coastal construction, under Chapter 161, Florida Statutes. Petitioner Blaha urged that although Section 161.053, Florida Statutes and the rules promulgated thereunder do not address sea turtles and their protection, the statute should be so interpreted. The Department responded that any jurisdiction it may have over sea turtles would be reposited in its Marine Resource Division, not in the permitting procedures for a coastal construction permit. In addition, federal laws protect endangered sea turtles, and the federal government has primary jurisdiction over the regulation of the nesting habitats of such sea turtles. Similarly, the Applicant and the Department pointed out that the Petitioner's criticism of the placement of the present CCCL falls outside the scope of a hearing on the issuance of a coastal construction permit, since Section 120.54, Florida Statutes provides for rulemaking proceedings for those attempting to change a rule established CCCL and Rule 16B-33.10, Florida Administrative Code, contains provisions for CCCL revisions or modifications on application of a riparian owner of property at or on the CCCL. Petitioner Blaha is not a riparian property owner and this was not a proceeding under Section 120.54, Florida Statutes. Respondent Aquarina established that it had taken and would continue to take all reasonable actions necessary to ensure the protection of sea turtles that inhabit the site through public relations campaigns and public advertisements to educate the public and especially the residents of the PUD and through architectural design efforts and dareful construction practices that will limit the impact of the proposed development on sea turtles and their nesting habitats. Moreover, to the extent that the development might have an impact on sea turtles, the source of the impact would not primarily be the structures at issue in these proceedings, but the buildings, parking lots, and other human habitation lying landward of the CCCL. The proposed temporary construction fence to be placed five feet beyond the CCCL will help conserve the dunes by limiting the potential impact of construction, and the Respondent Aquarina has agreed to restore that affected area to its natural state upon the completion of construction. Most importantly, the proposed dune crossovers will protect the dunes from the destruction that is occurring in the dunes to the north of the project and on the project site itself because of unrestrained pedestrian and vehicular traffic over and/or through the dunes and the accompanying destruction of dune vegetation in those areas. The dune crossovers are wooden walkways on raised pilings designed to have as little contact with the dunes as possible, with railings to restrain pedestrians from straying away from this direct access from the condominiums to the beach. The crossovers will make it unnecessary and undesirable for residents and visitors to create alternative foot paths through the heavy dune vegetation to the beach. Coupled with the educational program already being implemented by Aquarina, the dune crossovers should help to conserve the dunes. The Respondent Aquarina established that the incremental shading caused by the proposed roof overhangs extending about one foot beyond the CCCL and the cantilevered balconies extending approximately five feet beyond the CCCL would not significantly add to the shading from the buildings themselves, which lie entirely landward of the CCCL. The evidence showed that even the impact of the shading from the landward buildings would have no significant impact on the dune vegetation system or increase the rate of erosion or deterioration of the dune. See Rule 16B-33.02(23)(b), Florida Administrative Code. The additional impact from the minor structures for which the Respondent Aquarina seeks its permit should be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Department of Natural Resources, through its Executive Director, grant the requested construction control permit to the Applicant Aquarina Developments, Inc., subject to the conditions stated in the proposed permit (No. BE-80), the draft of which was attached to the Department's letter of November 20, 1981, notifying Petitioner Blaha of the Department's intent to issue the requested permit. DONE and ORDERED this 25th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1982. COPIES FURNISHED: Georges Blaha 280 Flamingo Drive Melbourne Beach, Florida 32951 Deborah A. Getzoff, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Clifford A. Schulman, Esquire GREENBERG TRAURIG ASKEW HOFFMAN LIPOFF QUENTEL & WOLFF, P.A. 1401 Brickell Avenue Miami, Florida 33131 Henry Dean, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Executive Director Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303
