Findings Of Fact The site of the revetment that is the subject of this litigation is located near the northerly coast of Pine Island in Charlotte Harbor. The property fronts on Pine Island Sound which is inside the barrier islands westward of Pine Island. Pine Island Sound is as an Outstanding Florida Water and Charlotte Harbor at this location is classified as Class II waters. Petitioner's property abuts the property owned by Meister Development Group. On Petitioner's property is located a two-story residence and two rental units. On Meister's property a four unit residential development has been erected. Sometime around 1970 a vertical seawall was erected to protect both Petitioner's property and Respondent's property. Since that time the beach has accreted to the point that by 1989 the sand beach extended an average of approximately twenty-five feet seaward of the seawall in front of Petitioner's property. However, this seawall ended near the middle of Respondents property and erosion of the beach became serious at the four unit residential development building located thereon in 1984. In 1984 the beach at this location had eroded to the point that the high water mark had passed the northern most portion of the building foundation and was threatening to undermine the structure. At this time this shoreline was devoid of aquatic vegetation. Meister employed an engineering firm to prepare a solution to the erosion problem. That firm concluded a revetment was needed and the application for the dredge and fill permit that is here contested was filed in July 1984. Since the application involved use of land seaward of the mean high water, permission of the Department of Natural Resources (DNR) was required before the application could receive final approval. To obtain the approval of DNR Meister agreed to provide a conservation easement to DNR and a public easement to allow the public access to cross the property seaward of the residential development. Additionally Meister conferred with Outstanding Florida Water Group to obtain their acquiescence to the project and agreed to provide navigational aids to mark the Jug Creek Channel across form the Meister property. Before a dredge and fill permit can be granted involving an Outstanding Florida Water the applicant must show the project to be in the public interest. In consulting with DER the applicant proposed a sloping revetment which is generally considered to better tolerate wave action than does a vertical wall. To enhance the public interest concept the applicant agreed to place toe stones at the foot of the revetment and plant mangroves. The toe stones would serve to hold sand in which the mangroves could grow and serve as a habitat for aquatic organisms. The applicant also agreed to place an artificial reef of rocks on the sand shoal which sits about one half mile north of applicant's and petitioner's property. Although the mangroves planted did not survive due to heavy wave action and the permit did not require survivability of these mangroves, at the hearing Meister agreed to a provision in the permit's next renewal that will include a requirement that a percentage of these mangroves planted in the toe stones survive. Landward of the residential development is a stormwater retention area that serves to keep contaminants out Pine Islands Sound. The erosion of the beach at the Meister property was threatening to extend further inland and allow contaminants to leach from the water retention area into Pine Island Sound and contaminate that body of water. Approval of the project would serve to remove that threat and be in the public interest. Finally consideration was given to the fact that the foundation of the condominium was being threatened which affected the dwelling of the residents. Protecting these residences is also considered to be in the public interest. The project was completed during a two weeks period in August 1986. The revetment generally takes off in the same line as the Vertical seawall on petitioner's property and is basically convex to fit the existing building and meet the zoning setback requirement of twenty-five feet from the building. To construct the revetment the existing vertical seawall on Meister's Property had to be removed. During construction turbidity screens were installed and construction was restricted to periods of low water to reduce turbidity. Any excess turbidity caused by the construction would settle out within twenty-four hours. Dr. O'Malley left Pine Island in March and returned in October 1986. At the time he left the beach in front of his seawall extended an average of twenty-five feet from the seawall. When he returned in October the revetment had been completed and approximately fifty-percent of Petitioner's beach had eroded. In October 1986 the beach on O'Malley's property extended two to twenty feet from the seawall. O'Malley was aware that prior to his departure the Meister property had suffered severe erosion. Believing that the construction of the revetment was the cause of the erosion of his beach Petitioner instituted this action. This was the only issue seriously contested. Petitioner's expert witness opined that the revetment acted like a groin east of Petitioner's property and caused a littoral drift, which is basically from east to west in this area, to take the sand from Petitioner's property. Further this witness opined that the longer fetch (area of open water to the north-east of Meister property) was the primary cause of the erosion of the Meister property. Historically beaches erode and accrete. Gentle waves have the tendency to cause accretion while storm waves result in seaward migration of beach sand. Photographs (exhibit 3) of Petitioner's property show typically storm wave generated erosion. The expert opinion of Respondents' witnesses that the erosion of Petitioner's property was caused by storm driven waves and was not caused by the revetment is deemed the more credible explanation of the erosion of Petitioner's beach.
Findings Of Fact After DNR issued a cease and desist order to Petitioner, forbidding further construction on his Walton County lot seaward of the coastal construction control line, he applied for an after-the-fact permit authorizing work to go forward on a three-story ten-unit condominium, which would occupy some 95 percent of the width of his lot, and extend 34 feet seaward of the coastal construction control line. Petitioner's Exhibit No. 1. DNR staff stated the following, in recommending denial: There presently exists over 160 feet of property located landward of the control line in which the proposed structure could be sited. The staff is concerned that the proposed encroachment is not justified, nor considered necessary for reasonable use of the property. In addition, staff is concerned about the potential cumulative effects of siting major structures seaward of the control line along this section of the coast, which contains a number of undeveloped lots, as well as redevelopable lots. The cumulative impact of such construction will result in significant disturbance and damage to well-established, mature vegetation and eventual destabilization of the coastal barrier dune ridge. Also, the proposed encroachment and shore-parallel site coverage will have an adverse impact on the natural recovery processes of the beach/dune system following the impact of a major storm event. The proposed building is not designed in accordance with the standards set forth in Subsections 16B-33.05(6) and 16B-33.07(1) and (2), Florida Administrative Code. File number WL-183 ATF has been assigned. . . . RECOMMENDED DENIAL, ASSESMENT OF A CIVIL FINE OF FIVE THOUSAND DOLLARS ($5,000) AND REQUIRING REMOVAL OF THE EXISTING UNAUTHORIZED CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE. Petitioner's Exhibit No. 1. The "reference [to] the extensive site coverage was not only the shore parallel site coverage, but also included the proposed encroachment seaward of the control line." (T. 18). DNR staff opposes construction on Mr. Hill's lot of a habitable structure seaward of the control line. (T. 19, Petitioner's Exhibit No. 2, pp. 12 and 13). Petitioner Hill timely instituted formal proceedings on his application, WL-183 ATF, and Case No. 85-2455 is still pending. Shore Parallel Site Coverage Since October of 1983, in processing coastal construction permit applications, DNR has taken into account "shore parallel site coverage," i.e., DNR staff have considered the relationship between lot width and the width of any structure proposed to be built fronting the water, seaward of a coastal construction control line. A succession of waterfront buildings stretching the entire width of their respective lots walls off the foreshore from more landward dunes. "[I]f you cover an extensive portion of the beach in the shore parallel direction, you tend to she[a]r off the upland area from the beach area and limit and inhibit the natural recovery processes of the dune system." (T. 15) With respect to Petitioner's proposed project and any other of this size and shape planned this far down on a similarly platted, developed and configured beach, DNR engineers put the maximum acceptable width of the structure at 50 to 60 percent of the lot's gulf frontage. Petitioner's Exhibit No. 2, p. 23; T. 20, 22, 32, 35. DNR has no written policy limiting the width of structures built seaward of the coastal construction control line. Although DNR endeavors to treat similar sites similarly, sites vary significantly and different widths may be allowed on similar sites when structures with different depths are planned. Petitioner's Exhibit No. 3, pp. 9-13. In its post-hearing memorandum in support of Petitioner's rule challenge to DNR's non-rule policy regarding side setbacks, Petitioner quotes the following: Q: Would you generally recommend this 50 to 60 percent shore-parallel site coverage for other types of similarily situated lots, either on the same beach or on other beaches in Florida? A: The reference 50 to 60 percent is something we would feel comfortable with in certain areas of the beach that have similar characteristics and existing--similar situations regarding existing development, potential for redevelopment, stability of the dune area, and things of that nature. It certainly wouldn't apply--those figures wouldn't apply to all areas of the Florida coastline. [Deposition of Brett Moore, September 10, 1985, pp. 16-17.] Q: But for, say, a similarly situated beach, maybe you would try to get people to move toward that time of width without specifically telling them that that's the width of coverage that you desire. A: For the two areas I mentioned, I feel that something in the vicinity of 60 percent site coverage would be acceptable to the staff, and that's what I would tell people if someone proposed a project in that area today. [Deposition of Brett Moore, p. 27.] A: Given that amount of encroachment on the dune, I feel that a reasonably acceptable shore-parallel coverage, given that shore- normal coverage, that would not have a significant adverse impact, would probably be between zero percent coverage and thirty percent coverage. In terms of what we would recommend, generally, in what kind of dune encroachment of a major structure, approximately a thirty-foot width, or about fifty percent coverage would probably be acceptable in terms of the impact to the dune and the recovery potential following a major storm event. Q: Okay. Did you--so fifty percent would probably be okay by your lights; is that a fair characterization of that statement you just made? A: Yeah, I could recommend a fifty percent coverage there, . . . In terms of what I would recommend for a site like that with that kind of encroachment with a major structure on the dune, I would recommend approximately fifty percent coverage. Q: What about for a similar type of beach, not one down in Charlotte County or any place like that, but let's just say a similar type of beach somewhere in the panhandle, same relative dimensions, topography and the like? A: So for the same---for the same site, I would recommend the same. [Deposition of Ralph Clark, pp. 10-11.] At 2-3. Neither this evidence nor any other adduced at hearing proved the existence of an agency statement of general, statewide application purporting in and of itself to have the direct and consistent effect of law. It is DNR's policy to treat similarly situated landowners similarly and to consider cumulative impact. The parties proposed orders contain proposed findings of fact which are addressed by number in an appendix to this final order.
The Issue Whether Petitioners' application for a permit to construct a dwelling in Walton County, Florida, should be approved, pursuant to Chapter 161, Florida Statutes. In January of 1984, Respondent Department of Natural Resources provisionally denied Petitioners' application for a permit pursuant to Chapter 161, Florida Statutes, to construct a dwelling on their property in Walton County seaward of the existing coastal construction control line. Petitioners requested a hearing pursuant to Section 120.57(1), alleging that the denial of their application was unlawful on constitutional grounds and that it exceeded Respondent's discretionary powers under Chapter 161. The request for hearing was referred by Respondent to the Division of Administrative Hearings, Case No. 84-0508. Thereafter, Respondent's motion to strike those aspects of the petition alleging the unconstitutionality of the proposed denial was denied on the basis that Petitioners properly may preserve such matters for any appellate review. Thereafter, Petitioners sought to amend their petition to allege the invalidity of certain of Respondent's rules and, although such petition was granted, Petitioners were informed that any administrative determination of the invalidity of rules must be made the subject of a separate petition filed with the Director of the Division of Administrative Hearings. On June 11, 1984, Petitioners filed a petition with the Division challenging the validity of certain of Respondent's rules which were cited by Respondent as the basis for the proposed denial of Petitioners' application for a permit. The petition alleged that said rules were not appropriate to the ends specified in Section 161.053, Florida Statutes, that the effect of the rules was to establish a class of property owners who could be excluded from receiving permits to construct dwellings seaward of the coastal construction control line merely because their lots or parcels of land are larger than their neighbors or other adjacent owners, and that such rules are arbitrary and capricious as they relate to the petitioners because other property owners in Walton County had been permitted by Respondent to construct dwellings similar to hat proposed by the Petitioners beyond the coastal construction control line. DOAH Case No. 84-0508 and the case involving the rule challenge, DOAH Case No. 84-2053R, were consolidated for purposes of hearing. At the hearing, Petitioners presented the testimony of Brett Moore, a coastal engineer employed by the DNR Division of Beaches and Shores, Dennis Evans, an architect, and Petitioner Edward S. Coley. Petitioner submitted ten exhibits in evidence Respondent presented the testimony of Brett Moore, Deborah Flack, Director of the Division of Beaches and Shores, and Ralph Clark, Chief of the Bureau of Coastal Engineering and Regulation. Respondent submitted 21 exhibits in evidence. Posthearing submissions submitted by the parties in the form of Proposed Recommended Orders have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact In 1981 Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley, Petitioners' Exhibit 1, Respondent's Exhibit 1). At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20). On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984, that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area. . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised Petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16). The height of the dune line on Petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under dead covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to come extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8). Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21). Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10). Although conflicting evidence was received as to whether or not the existing structures east of petitioners' lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioners' Exhibit 1). Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2). The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4).
The Issue Whether the permit application of Clifford S. and Maria Ray (the "Rays") meets the statutory and rule requirements for the Department of Environmental Protection ("DEP" or the "Department") to issue to the Rays a permit to construct a multi- family dwelling and related structures seaward of the coastal construction control line ("CCCL") on their property in Brevard County?
Findings Of Fact Legislative Intent re: Beaches and Coastal Barrier Dunes The Legislature has declared that the beaches and the coastal barrier dunes in this state, subject by their nature to severe fluctuations, represent one of the most valuable resources of Florida. See § 161.053(1)(a), Fla. Stat. The Legislature has further declared that it is in the public interest to preserve and protect the beaches and dunes from imprudent construction because it can "jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access." Id. The Legislature has therefore directed the Department of Environmental Protection "on a county basis along the sand beaches of the state fronting the Atlantic Ocean [and other salt water bodies]" to "establish coastal construction control lines." Id. The "Coastal Construction Control Line" A line of jurisdiction, rather than a line of prohibition, the Coastal Construction Control Line (the "CCCL or the "Control Line") is defined in Chapter 62B-331 of the Florida Administrative Code. The Control Line is: the line established pursuant to provisions of Section 161.053, F.S., and recorded in the official records of the county, which defines that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions. Fla. Admin. Code. R. 62B-33.002(12). The Department's Office of Beaches and Coastal Systems has regulatory authority to permit or deny construction seaward of the Control Line pursuant to statutory and rule criteria. This proceeding concerns the exercise of that authority in the form of issuance of a permit for activity seaward of the Control Line in Brevard County. Brevard County's Control Line The Control Line in Brevard County was established by the Department of Natural Resources, an agency of the state and a predecessor of DEP, in 1981 (the "1981 CCCL"). A second Control Line in Brevard County was established in 1986, again by the Department of Natural Resources. It is approximately 150 feet landward of the 1981 CCCL. It will be referred to in this order as "the CCCL" or "the Control Line." The line established in 1981 will be referred to as the "1981 CCCL," to distinguish it from the Control Line established in 1986, the Coastal Construction Control Line applicable to this proceeding. The Parties Mrs. Pope Petitioner, Carole C. Pope, owns with her husband James M. Pope, oceanfront property located at Wilson Avenue, Brevard County, Florida, where the Popes reside part time. The Popes' property has a Cocoa Beach mailing address, but is not within the city limits of Cocoa Beach. Littoral to the Atlantic Ocean, the Popes' property was identified in the pre-hearing stipulation in the Rule-related Cases (discussed in this Order's Preliminary Statement) as "Lot 11, Block 101, Avon by the Sea as described in Plat Book 3, page 7 [presumably the Official Records of Brevard County] and east to Ocean, except the west 13 feet of Lot 11." See Final Order, Pope v. Department of Environmental Protection et al., Case No. 03-3860RX, paragraph 7, page 9. The Popes have two duplex units on their property. Built in the 1950's, they consist of concrete foundations, block walls, and 10-foot-high flat roofs. Mrs. Pope and her husband have retained the native, salt-tolerant vegetation that surrounds the duplexes. Protective of the property because it serves to enhance and stabilize the primary/frontal dune, it also adds to Mrs. Pope's enjoyment and use of her property. She enjoys the native flora, an integral part of the habitat of native fauna (gopher tortoises and indigo snakes, for example) that she enjoys watching. She particularly enjoys feeding and interacting with the sociable scrub jay. The Department and its Office of Beaches and Coastal Systems The Department is responsible for the administration of Parts I and II of Chapter 161, Florida Statutes, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control lines; activities seaward of the coastal construction control line; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties." § 161.053 (21), Fla. Stat. Pursuant to its rule-making authority in Section 161.053 (together with other specific authority), Florida Statutes, the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)." The Office is in the Department. Fla. Admin. Code R. 62B-33.002(11). Permits for construction or other activities seaward of the construction control line, such as the permit in this case, are issued pursuant to Section 161.053, Florida Statutes, by the Program Administrator of the Bureau of Beaches and Wetland Resources on behalf of the Department. See Respondents 1, Vol. 2, Tab 22. The Department has not delegated Chapter 161 permitting authority to Brevard County. The Rays Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No. BE-1083, preliminarily issued by the Department in its final order of September 19, 2003. The property consists of four 50-foot-wide lots, Lots 12, 13, 14 and 15 in Avon by the Sea. Lot 12 is immediately adjacent to Mrs. Pope's property. Some of the native vegetation on the property has been disturbed by the planting of sod and installation of an irrigation system seaward of the Brevard County coastal setback line and the Control Line. The activity is the subject of administrative enforcement actions by the County and DEP. Although government claims of violations had not been resolved finally as of the date of hearing, the Rays have not resisted the claims. The Permit was issued to the Rays under the authority of Section 161.053, Florida Statutes. It authorizes activities on the Ray property seaward of the CCCL. This activity includes the construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry wall and an exfiltration trench, as described in more detail in the section of the Permit entitled "PROJECT DESCRIPTION." Respondents Ex. 1, Vol. 2, Tab 22, Permit No. BE- 1083, p. 2-3. The Department was not aware of the claims of violations made against the Rays referred-to above at the time that Mr. Tammisetti, the engineer assigned to review the permit file initially, recommended that the permit be issued. Had Mr. Tammisetti been aware of the claims he still would have recommended issuance of the permit. Coastal Systems and Fixed Coastal Cells The term "Coastal System" is defined by the Department in its rules: "Coastal System" is the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and structures. Fla. Admin. Code R. 62B-33.002(13). Within the coastal system are "fixed coastal cells," also defined by Department rule: "Fixed Coastal Cell" is a geomorphological component of the coastal system which is closely linked internally by active physical processes and is bounded by physical features which exercise a major control on refraction patterns or which compartmentalize or severely limit longshore sediment such as headlands or inlets. Fla. Admin. Code R. 62B-33.002(24). Within and adjacent to a fixed coastal cell of Florida's coastal system lie sea, shore, beach, dune system, vegetation, uplands and structures with which this proceeding is concerned. The Beach and Dune System within the Fixed Coastal Cell The Ray property and the Pope property are located in a fixed coastal cell that extends from Canaveral Inlet (north of R014, one of a series of coastal monuments installed by the state) southward to Monument R050. The community in which the property is situated is a "Coastal Uplands: Beach Dune" community characterized by a beach and dune system. There is one primary/frontal dune with a height at the top of the bank of about 13.4 feet NGVD seaward of the proposed project. The portion of property on which the project is sited is between 7.3 and 10.7 feet NGVD. The most recent DEP design wave height elevation for R015 is 14.2 feet NGVD, higher than the existing dune elevation at the Ray property. Much of the Ray property behind the dune is lower in elevation than the elevation of contiguous properties, the likely result of persistent cutting of native vegetation that acts to intercept wind-blown sand as it moves along the shoreline. Beach and Dune Data in DEP File BE-1083 In the application review process, Mr. Tammisetti submitted a memorandum dated May 24, 2001, to Mr. McNeal. The memorandum appears to have been a form with blanks into which information was inserted or handwritten close to the appropriate blank. For example, under Section I., of the form "PROPOSED PROJECT" is "A. Project Location:", followed by a description with blanks left for number of feet, direction (north, south, east, west) reference monument number, county and project address. Handwriting close to the blanks leads one to understand or gather that it intends to communicate the following statements: The location of this project is approximately 100 feet N to 103 feet S of the Department of Environmental Protection's Reference Monument R-15, in Brevard County. Project Address: Harding Ave, Cape Canaveral. This is within the local jurisdiction of Brevard County. Respondents 1, Vol. 2, Tab 13. The form also contains Section II., "CHARACTERIZATION OF BEACH/DUNE SYSTEM". The section calls for three categories of characterization: A., a general description; B., beach topography in terms of shoreline alignment, berm width in feet, berm elevation in feet (NGVD), direction of net littoral transport, volume of net littoral transport in cubic yards per year, and general conditions; and C., Primary Dune/Bluff Topography with dune width in feet. None of the information called for by this section has been filled in on the form. At hearing, Mr. Tammisetti testified2 that berm width was 220 feet and the berm elevation ranged from 3 to 10 feet NGVD. He testified that the direction of littoral transport was north to south but he did not know the volume of net littoral transport. He stated that the "general site condition" was an eroding shoreline. He estimated the dune width at between 30 to 40 feet. These facts and figures exist under an overarching consideration. The beach near R015 that fronts the Pope and Ray property is critically eroding.3 Vegetation on the Ray Property There is a sea grape cluster and numerous palm trees on the Ray property. The seaward most continuous line of native salt-resistant vegetation or the "vegetation line" is near the line at the toe of the slope of the dune bank depicted on the topographic survey drawing submitted as part of the application. Nanette Church, at the time an employee of Brevard County, visited the site on July 1, 2003. She documented the presence of fresh sod and a new irrigation system installed seaward of the County's coastal setback line, a line parallel to and 25-feet landward of the 1981 CCCL. Two days later, DEP Inspector Gene Verano conducted a site inspection and documented the placement of sod and the installation of an extensive irrigation system. On July 31, 2003, the Department under the signature of Jim Martinello, an Environmental Manager in the Bureau of Beaches and Wetland Resources, issued a warning letter to Mr. Ray with regard to "POSSIBLE UNAUTHORIZED ACTIVITIES SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE." The letter reads, in part, Pope 3. [I]t appears that you have again been engaged in unauthorized activities on your property located approximately 100 feet north to 100 feet south of the Department of Environmental Protection's reference monument R-15, in Cocoa Beach, in Brevard County, Florida. The possible violation consists of the destruction/removal of native vegetation and placement of sod and an irrigation system seaward of the coastal construction control line without benefit of a permit from the [department.] The sod seaward of the CCCL has a negative effect on the stability of the dune system. A weakened dune system allows for storm surge and overwash to breach the dune and cause washout on the landward side of the dunes. Brevard County has not yet issued a land clearing or landscape permit to the Rays. A "Brevard County Land Development Site-Plan Approval" with an approval date of December 30, 2003, warned, "[i]t is the responsibility of the Owner/Engineer of Record to contact Office Natural Resources for a Land Clearing/Landscaping Permit." Respondents' 1, Vol. 1, Tab 12. The Rays are not contesting County or DEP enforcement actions relative to the land clearing, sod placement, and irrigation system installation. Project Description The project proposed by the Rays is to be located on their property in the unincorporated area of Brevard County known as "Avon-by-the-Sea," in the vicinity of Department monument R-015. The project is known by Brevard County as the Ray Condos and also as the Michelina Condominium. The location of the multi-family dwelling relative to the Control Line is "[a] maximum of 105.56 feet seaward." Id. Its exterior dimensions are "209.67 feet in the shore normal direction by 84 feet in the shore-parallel direction." Id. The type of foundation is "Pile." Id. There is no mention in the Permit of the height of the building. The swimming pool is described in the Permit in detail with regard to its dimensions and location (a maximum of 101.49 feet seaward of the control line), the type of construction and its maximum depth: six feet. Excavation/Fill for the project is described in terms of volume of excavation, its location, volume of fill as replacement, and location of fill. The Excavation/Fill description is subject to Special Permit Condition 6. Among other provisions of the condition, the fill is to be "from a source landward of the control line and shall consist of sand which is similar to that already on the site in both grain size and coloration." Id., p. 4. Other permitted structures and activities are listed and described in the Permit with reference to special permit conditions: A wooden beach/dune walkway structure of dimensions 174 feet shore-normal by 4 feet shore-parallel is to be located seaward of the control line. See Special Condition 7. A 4-foot to 14-foot swimming pool deck attached to the periphery of the swimming pool is to be located a maximum of 105.96 [feet] seaward of the control line. See Special Permit Condition 2.1. Paver-block parking area on the south side of the proposed dwelling. Masonry walls along the north and south property lines to extend a maximum of 105 feet seaward of the control line. See Special Permit Condition 2.2. An exfiltration system trench on the south side of the proposed dwelling. Among nine special conditions in the Permit are that no work can be conducted until a DEP "notice to proceed" has been received by the Rays. Another is that prior to the issuance of such a notice "two copies of detailed final site and grading plans and specifications" shall be submitted including two sets of landscape drawings. Id., p. 3, Special Permit Condition 2. See id., 2.3. The landscape plan must be submitted to Brevard County for approval under the Permit's special conditions. Given Brevard County's requirement that the Rays secure a Land Clearing/Landscaping Permit, there will be an ongoing process that poses the potential to ensure that the Rays' project will be designed to minimize the impact on native vegetation. The process also may require a restoration plan, as well, for the impact to native vegetation caused by the sod and the irrigation system. The Rays have submitted such a plan to the County. Relationship of the Proposed Project to the Pope Property The proposed multi-family dwelling is sited 10 feet south of the northern property line (the line that serves as the southern boundary of the Pope property). Ten feet is the minimum setback from adjacent property allowed by the county. The duplexes on the Pope property are situated in a range from 3.5 to 4.5 feet from the property line (the border with the Ray property.) The project, therefore, is proposed to be as close as 13.5 feet of the Pope duplexes. If built, running the length of the duplexes, it would create a relatively narrow space between the proposed structure and the Popes' duplexes that ranges from 13.5 feet to 14.5 in width. The Application The Rays submitted their CCCL permit application to the Department through their agent, Joyce Gumpher. On January 24, 2003, Ms. Gumpher executed a certification "that all information submitted with this application is true and complete to the best of [her] knowledge." Respondents Ex. 6, APPLICATION FOR A PERMIT FOR CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE OR FIFTY-FOOT SETBACK. The application was received by DEP on January 27, 2003. Additional information was requested by the Department. On April 21, 2003, the Department deemed the application complete. During the application process, several plan sheets were revised. Revised plan sheets were submitted after the application was deemed complete (see Respondents' Ex. 6, July 29, 2003 plans and September 5, 2003 plans) and once prior to DEP's determination of its completeness. (see id., April 7, 2003 plans). Review of the Application On August 26, 2003, Mr. Tammisetti submitted a memorandum to Mr. McNeal that recommended approval of the application with special permit conditions. The memorandum, similar in form to the memorandum submitted on May 24, 2001, except for the lack of Part II., is entitled "Description of Beach and Dune System Fronting the Subject Property and an Analysis of Impacts to be Expected From the Proposed Construction." Respondents 1, Vol. 2, Tab 20. It describes the proposed project but, lacking Part II., it neither characterizes nor describes the beach/dune system. Nor does it analyze the impacts of the proposed project other than to provide the "final comment" that "[t]he proposed project is landward of line of construction and 30-year erosion project. Impactive shore- parallel coverage is approximately 72%." Id., p. 3. Under its rules, after reviewing all information required, the Department is mandated to: Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effect of the construction on the coastal system and marine turtles. * * * Require siting and design criteria that minimize adverse impacts and mitigation of adverse or other impacts. Fla. Admin. Code R. 62B-33.005(3). As found earlier, the file in BE-1083 does not contain any documentation that the Department conducted the impact assessments required by the rule. Nonetheless, the Department based its evaluation on the portion of the fixed coastal cell from just north of R013 to approximately 400 feet south of R017 depicted on Respondents' 7. Respondents' 7 Respondents' 7 is an aerial photograph of developed uplands and off shore waters of the Atlantic Ocean in between which is the shore line and a stretch of beach in Brevard County. The sandy beach in the photo runs from north to south from Monument R013 to approximately 400 feet south of Monument R017, five monuments in a series set by the state along the Brevard County coast. The photograph is data the Department reviewed to determine if existing structures established a "reasonably continuous and uniform construction line closer to the mean high water line than [the coastal construction control Line]." § 161.053(5)(b), Fla. Stat. (This "reasonably continuous and uniform construction line" will be referred to as the "Construction Line" in this order.) The Pope property and the Ray property both straddle the Construction Line. The photograph shows four structures (the "Four Structures") that were determined by DEP to establish the Construction Line. Two are to the north of the Ray property; two are to the south. Of the two structures to the north, the closest is between 400 and 450 feet north of the northern boundary of the Ray property. It sits between Monument R015 and R014. The other structure to the north used to establish the Construction Line lies between Monument R014 and R013. Its southernmost corner is approximately 1200 feet to the north of the northern boundary of the Ray property. The roof of the closest of the Four Structures to the south, lying between Monument R015 and R016, viewed from the air above is rectangular indicating the structure to have a rectangular footprint. Positioned at an angle to the coast, its southeastern corner is along the 1981 CCCL. That corner is approximately 400 feet south of the southern boundary of the Ray property. The second structure to the south sits between R016 and R017. Its northernmost corner is roughly 850 feet south of the southern boundary of the Ray property. The Application Rule Florida Administrative Code Rule 62B-33.008(4), entitled "Permit Application Requirements and Procedures" (the "Application Rule"), requires that the Rays' application contain certain specific information, including that identified in subsection (f): Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of the application. The rule further calls for the topographic survey drawing to include specific information such as "[t]he location of any existing vegetation line on the subject property." Fla. Admin. Code R. 62B-33.008(4)(f)9. The topographic survey drawing submitted as part of the application in January of 2003 reveals a survey date of "7/17/02." Respondent's Ex. 1, Sketch of Boundary and Topographic Survey, Lots 12-15, Block 101, Avon by the Sea, Brevard County, Florida. Other than the date of the survey, the evidence at hearing did not reveal when the fieldwork in support of the survey was conducted.4 In all likelihood the fieldwork was conducted close to July 17, 2002, but obviously prior to July 17, 2002. Whether the date of the application is considered to be the date of Ms. Gumpher's certification (January 24, 2003), or the date of its receipt by DEP (January 27, 2003), it does not depict "field survey work performed not more than six months prior to the date of the application." January 24, 2003, is six months and one week after July 17, 2002. January 27, 2003, is six months and 10 days after the date of the survey. The Vegetation Line The topographic survey drawing submitted as part of the application did not meet precisely the requirements of the Application Rule in several other ways. For one, it did not label the location of "any existing vegetation line on the subject property." At hearing, the Rays submitted a revised copy of the topographic survey drawing (still dated "7/17/02"). The revision labels a line indicated on the originally submitted topographic survey drawing as "TOE OF SLOPE" (within a few feet of the top of the dune bank) as "TOE OF SLOPE AND VEGETATION LINE." Thus, it is apparent that the originally submitted topographic survey drawing depicted the vegetation line; it merely failed in its labeling of the vegetation line. The Department, once it became aware of the omission of a reference to a vegetation line in the original submission, waived the requirement for one. At hearing, Mr. McNeal testified that the waiver was authorized by subsection (7) of the Application Requirements and Procedures Rule: The Department recognizes that the requirements specified in paragraphs 62B- 33.008(4). . . (f) . . ., F.A.C. may not, due to the project circumstances, be applicable or necessary to ensure protection to the beach and dune system. In such cases, the applicant shall, as part of the application, identify those requirements and state the reason why they are inapplicable. The Department shall waive requirements that do not apply. Fla. Admin. Code R. 62B-33.008(7). There is no evidence of record that the Rays informed DEP of a position that the "location of the vegetation line" on the topographic survey drawing was a requirement inapplicable or unnecessary to ensure protection to the beach and dune system.5 Nonetheless, construing its waiver authority to be broader than authority limited to cases in which identification of inapplicable and unnecessary requirements had been made by those seeking DEP waivers, the Department waived the requirement. The waiver was based on knowledge gained from the experience of DEP employees. The employees (Mr. Tammisetti and Mr. McNeal) knew that the vegetation line would be close to the top of the dune bank line and the toe of slope line, both of which were located on the topographic survey drawing.6 Respondents' 2 supports the Department's waiver since it labels the vegetation line where the Department roughly expected it to be. Complete Dimensions and Distance Perpendicular The Application Rule further demands that the topographic survey drawing contain: 15. Accurate dimensions and locations of the foundation outlines of any structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of Section 161.053(5)(b) or 161.052(2)(b), F.S., and the distance perpendicular [the "Distance Perpendicular"] from the CCCL or 50-foot setback to the seaward corners of the foundations of any major structures . . . . Fla. Admin. Code R. 62B-33.008(4)(f). The application contained the dimensions and locations of the two (2) duplexes located on the Pope property, that is, the adjacent area to the north of the Ray property. With regard to the adjacent area to the south of the Ray property, the application contained the seaward dimensions and locations of the major structure that makes up the Discovery Beach Resort structure. The topographic survey drawing did not contain the dimensions of the complete footprint of the Discovery Beach Resort. Nor did it contain the distance perpendicular from the CCCL or 50-foot setback to the seaward corners of the foundations of all major structures depicted. Mr. McNeal noticed that required elements were missing from the application. When he made the permitting decision, he waived them pursuant to a delegation of authority from the Office of Beaches and Coastal Systems. Delegations of Authority Office of Beaches and Coastal Systems The Director of the Office of Beaches and Coastal Systems has delegated certain authority to subordinates in the Office of Beaches and Coastal Systems with respect to the CCCL permitting program. The delegations, as reflected in a document entitled "Delegations of Authority, OFFICE OF BEACHES AND COASTAL SYSTEMS" (Pope Ex. 1), is to "the Director of Office of Beaches and Coastal Systems, or his/her designee." Id., 3.a. As the administrator of the CCCL program within the Bureau of Beaches and Wetlands Resources, Mr. McNeal has been delegated authority under Delegation "OBCS-9" (id., p. 14 of 24), to "[t]ake final agency action on permit applications . . . pursuant to Sections . . . 161.053 . . ., Florida Statutes, and Rule 62B-33, F.A.C., [subject to exceptions immaterial to this proceeding.]" Id. The authority so delegated is not without limitation. Among limitations enumerated and express in the Delegations of Authority document is that "[t]the exercise of any delegated authority shall conform with all statutes and rules applicable to the DEP." Id., 3.a. Waivers Pursuant to Delegated Authority Pursuant to the authority over final agency action on CCCL permit applications, Mr. McNeal, as the head of the CCCL Program in the Office of Beaches and Shores, waived the depiction of the location of the vegetation line on the topographic survey drawing, the full dimensions of the Discovery Resort in the adjacent area to the south of the Ray property and the notation of the Distances Perpendicular. He did so because the information contained on the topographic survey drawing was sufficient, in his view, to allow the Department to perform the calculations and analyses as part of the application process that would be served by a review of the topographic survey drawing. An example has been alluded to in this order. Based on years of collective experience, Mr. McNeal and Mr. Tammisetti concluded it was reasonable to assume the vegetation line would be very near the toe of the slope line in relation to the dune bank. Their assumptions were proved correct at hearing. The dimensions and locations of the major structures located immediately north and south of the proposed project (the Pope duplexes and the Discovery Resort structure) and the Distances Perpendicular were required to be included on the topographic survey drawing, but they were not intended by the Rays to establish a Construction Line. Establishment of any such line is governed by Section 161.053(5)(b), Florida Statutes: If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing [the CCCL], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department, if such structure is also approved by the department [and other conditions are met]. A Construction Line The Rays contend in their application and DEP agrees that the Four Structures establish a Construction Line. Once such a line is established provided the structures are not duly affected by erosion, the Department is conferred with the discretion to permit a proposed structure along the line seaward of the CCCL under certain circumstances. See § 161.053(5)(b), Fla. Stat. Among those circumstances, the permit "shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided [by statute.]" § 161.053(5)(b), Fla. Stat. Furthermore, by rule of the Department, written evidence from local government must be provided that the location of the proposed structure along a Construction Line seaward of the CCCL is consistent with the Local Comprehensive Plan. See Fla. Admin. Code R. 62b-33. Written evidence that Brevard County regards the Rays' proposed site to be consistent with Local Comprehensive Plan and not contrary to local setback requirements or zoning codes was provided by Brevard County to the Department. Establishment of a Construction Line Whether a Construction Line can be established for a proposed project is unique to the project and its coastal location. To establish such a line, the Office of Beaches and Coastal Systems may rely exclusively on information provided by the applicant for a permit to construct along such a line. The Office may also refer to its own database of aerial photographs (as it did in this case) and other data with regard to the State's coastal systems. The Construction Line running across the Ray property accepted by DEP is nearly identical to the 1981 CCCL. In contesting the establishment of the Construction Line, Mrs. Pope makes a number of points, several of which are worthy of discussion. For one, in 1993, the Department considered an administrative challenge brought by Mrs. Pope to the CCCL permit for the construction of the Days Inn Tower (now Best Western) hotel (one of the structures used by the Rays to establish a Line of Continuous Construction). See, OR-1, Pope v. Department of Environmental Protection et al., Agency Final Order dated May 9, 1994, DOAH Case No. 93-4560 (the "1993 Pope Case.) The Pope duplex had been found to be three or four blocks north of the property for which the permit was sought. If her property had been found immediately adjacent to the Days Inn Tower property, Mrs. Pope would have been accorded standing to contest issuance of the permit to the Days Inn Tower applicant. The hearing officer had recommended that Mrs. Pope not be accorded standing under the rule because her duplex property was not "immediately adjacent" to the Days Inn Tower parcel. Since Mrs. Pope's parcel was separated by at least what has been identified in this proceeding as the Ray property and the property of the Discovery Resort, she did not qualify for standing under the DEP Rule. Nevertheless, Mrs. Pope was afforded the opportunity to acquire standing by proving that her substantial interests would be affected by issuance of the permit. The hearing officer concluded that her attempt in this regard failed.7 The Department accepted the hearing officer's recommendation that Mrs. Pope be determined to have no standing, in part because her property was not "immediately adjacent" to the Days Inn Tower property. Mrs. Pope also asserts that the Four Structures along the 1981 CCCL do not establish a Construction Line on the basis of the testimony of her witness, Dr. Harris. Dr. Harris opined that the structures to be used to establish the Line of Continuous Construction, if one exists, are not the four used by DEP that are in the area of the Ray property but the structures on the two pieces of property closer to the Ray property, that is, immediately adjacent: the Pope property to the north and the Discovery Resort property to the south. The easternmost point of the structure on the Pope property is approximately 50 feet landward of the 1981 CCCL and extends approximately 100 feet seaward of the Control Line. The structure on the Discovery Resort property to the south is along the Control Line. See Respondents' 7. The line that Dr. Harris would establish does not run parallel to the shore line, the 30-year erosion line, the 1981 CCCL or the Control Line. It would run at an angle of approximately 15 degrees from the easternmost point of the Pope duplexes (the "point of beginning") about 425 feet to the easternmost point of the Discovery Resort structure. The point on the Discovery Resort structure (at the end of the line) is approximately 100 feet seaward of the point of beginning. If these structures are to be considered in the determination of whether a Construction Line exists as Mrs. Pope argues, then continuing the line to include the Four Structures would yield broken lines rather than a reasonably "uniform" and "continuous" line. The Department did not consider the structures in the property immediately adjacent to the Ray property to break the line it determined is established by the Four Structures. It ignored other structures as well between the northernmost and the southernmost of the four structures. Mrs. Pope, therefore, describes the Construction Line established by the Department as "imaginary" and without a factual basis. This point is one of opinion. The Construction Line is neither imaginary nor without a factual basis. It has a factual basis in precisely the data used by DEP: the aerial photograph that shows four major structures between Monuments R013 and R017, Respondents' 7, along the 1981 CCCL. The disregard for the Pope duplexes and the Discovery Resort structure as well as other structures in the areas north and south of the Ray property is a matter that falls within professional opinion and Department expertise. The establishment of the Construction Line is justified by the data DEP examined: Respondents' 7 (on which the Four Structures were identified and circled by Mr. Tammisetti at hearing.) The greater weight of the evidence is that DEP's determination of the establishment of the Construction Line should not be disturbed. It is, moreover, not surprising that such a line exists. One would expect that structures built after 1981 but before 1986 would be located along the 1981 CCCL and that structures that followed (such as the Discovery Resort structure) would be built along that Construction Line. Post-establishment of a Construction Line Establishment of a Construction Line does not entitle an applicant to a permit to build along that Construction Line. After a Construction Line is accepted by DEP as established, an applicant must satisfy three remaining sets of conditions expressed in Section 161.053(5)(b), Florida Statutes. Section 161.053(5)(b), Florida Statutes A discretionary exercise Once a Construction Line is established, an application for a permit to allow a proposed structure is subject to the discretion of the Department: "a proposed structure may, at the discretion of the department, be permitted along such line on the written authorization of the department, if such structure is also approved by the department." ii. Local Requirements The Department has no such discretion, however, if the construction or activity would "contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than . . . requirements [in chapter 161]." Id. To this list, the Department, by rule, has added consistency with state-approved Local Comprehensive Plans. See Fla. Admin. Code R. 62B- 33.008(4)(d). Before exercise of department discretion and inquiry into compliance with local requirements, there is a more fundamental condition that must be demonstrated by the applicant: the existing structures that establish the Construction Line must not have been unduly affected by erosion: If in the immediate contiguous or adjacent area a number of existing structures have established a [Construction Line], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line . . . [h]owever, the department shall not contravene [local requirements] . . . equal to, or more strict than, those requirements herein. § 161.053(5)(b), Fla. Stat. Unduly Affected by Erosion The parties differ in their view of the testimony and evidence introduced at hearing with regard to whether structures that establish the Construction Line "have not been unduly affected by erosion." Id. Neither DEP employees nor the Rays' witnesses visited the shoreline between R0-13 and R-017 to evaluate the four structures that establish the Construction Line and the effects of erosion, if any.8 Mrs. Pope asserts in her Proposed Recommended Order, "[n]o evidence or testimony was offered as to whether the structures considered by DEP were affected by erosion." Petitioners' Proposed Recommended Order, p. 24. In contrast, Respondents cite to the testimony of Mr. Boehning and Respondent's 7 with the assertion, "[t]he existing structures, which form the line of continuous construction, have not been unduly affected by erosion." Respondents' 7 supports the claim of Respondents. It reveals a distance perpendicular from the Construction Line to the dark, wet sand along the shore to be approximately 275 feet. This distance encompasses white sandy beach that is approximately 175 feet and a vegetated area that is approximately 100 feet. The finding that the structures that establish the Construction Line are not unduly affected by erosion does not mean that there are not erosion problems in the area. In fact, as found earlier in this order, the beach depicted on Respondents' 7 is "critically eroding." The stretch of beach depicted in the aerial photograph that is Respondents' 7 has undergone considerable fluctuation since 1963 through erosion and beach nourishment. From 1972 to 2002, for example, the location of the mean high water line at R-015, the monument closest to the Pope and Ray properties, has varied by 206 feet from a low in September of 1972 to a high of 369.3 feet in April of 2001. Dr. Harris wrote this in a report introduced into evidence: The beach profile data show that at R-15 the beach and dune are subject to erosion. From 1972 to 2002 the variation in the MHW shoreline position was 206 feet. Beach nourishment and inlet sand by-passing operations were performed between some of the time periods, and are largely responsible for the periodic beach and dune widening. Even with the beach nourishment project, dune erosion continues to be a problem, and although the recent beach nourishment project greatly widened the beach, the position of the dune remained the same. The FDEP design wave height elevation for a 100-year storm is 14.2 feet NGVD for R-15, which is higher than the existing dune elevation. This means that the upland properties would experience storm surge, flooding and wave action during a 100-year storm. Pope 16. Projects of beach nourishment (placement of sand through human activity) were performed in 1972, 1986 and 2001. The need for beach nourishment and re-nourishment reinforces the status of the beach near R-015 as "critically eroding" and underscores the importance of protecting as much of the dune system as possible. That the beach is critically eroding is not inconsistent with a finding that the structures that establish the Construction Line are not unduly affected by erosion. Whether or not due to the 1986 and 2001 nourishment projects, the evidence of record is that, despite the status of the beach as critically eroding, the structures that establish the Construction Line are not unduly affected by erosion. Not Contrary to Local Requirements On December 30, 2002, a site-plan approval was issued by Brevard County with regard to "RAY CONDOS aka MICHELINA CONDOMINIUM" with a site address of "420 Harding Avenue, Cocoa Beach, FL 32931." Respondents' 1, Vol. 1, Tab 12, second page. Signed by the designee of the Director, Permitting and Enforcement, the development order is entitled, "BREVARD COUNTY LAND DEVELOPMENT SITE-PLAN APPROVAL" and contains the following: The site plan to which this approval is attached has been reviewed by affected County divisions, departments and agencies and has been determined to comply in general with the Brevard County Code of Ordinances and Comprehensive Plan Elements. * * * It is the responsibility of the Owner/Engineer of Record to contact Office of Natural Resources for a Land Clearing/landscaping Permit Two (2) sets of As-Built drawings must be provided to Land Development prior to the Issuance of a C.O. Id. The development order concludes with a statement related to the vested right of the Rays to develop in accord with the site plan: If a Certificate of Occupancy has not been issued for the principal structure by Dec. 30, 2005 the three (3) year vesting period, beginning with the date of site development plan approval, expires and said site plan shall become Null and Void. Only those phases of the development that have an active and valid building permit may be completed after the three-(3) year time period. Id. The reference in the site-plan approval to the "Brevard County Code of Ordinances" does not include building codes. The reference covers local setback requirements and zoning codes. Mrs. Pope appealed the issuance of the site-plan approval to the Brevard County Board of County Commissioners (the "Board"). Her appeal was heard over three meetings of the Board on May 6, 2003, June 8, 2003, and August 12, 2003. At the conclusion of the August 12, 2003, proceedings on the appeal, the Board voted unanimously to accept the staff recommendation to deny the appeal. An unnumbered resolution of the Board "DENYING THE APPEAL OF JAMES AND CAROLE POPE . . . PERTAINING TO THE MICHELINA CONDOMINIUM SITE PLAN" was produced by Mrs. Pope at the hearing together with the following statement of a Deputy Clerk for the Board: This is to advise that the Office of the Clerk to the Board of County Commissioners does not have any correspondence indicating a copy of the Findings of Fact on Michelina Condominium was forwarded to Mr. or Mrs. Pope. Pope 7. The resolution is signed by the Chairperson of the Board. Immediately below the signature block there appears the following: "(As approved by the Board on August 12, 2003)." Pope 8. The document is not stamped received by the Clerk of the Board or the County Clerk's Office, nor is there other clear indicia that the order has been rendered through a filing with the Clerk's office. On its face, however, appears an undated attestation of a deputy clerk under a seal of Brevard County that appears to attest to the Chairperson's signature. As of the dates of the final hearing in this proceeding, Mrs. Pope had not sought judicial review of the decision of the Board. At hearing, on the strength of the signed resolution denying Mrs. Pope's appeal of the site-plan approval and the site-plan approval, itself, and the apparent finality of the approval, Mrs. Pope was ruled estopped from presenting evidence that the Permit contravened local setback or zoning requirements or was inconsistent with the Local Comprehensive Plan. The establishment of a Construction Line, that the structures establishing the line are not unduly affected by erosion, and the collateral estoppel of Mrs. Pope's claim that construction or activity seaward of the Control Line along the Construction Line is contrary to local requirements, clears the way for the exercise of Department discretion as to whether to issue the permit. Department Discretion The Department's exercise of discretion must, of course, take into consideration the beach and dune system within the fixed coastal cell in which Ray property and the Pope property are located. No other conclusion could be gathered from the statements of legislative intent and the statutory scheme. Lest there be any misunderstanding, the Department has codified its policy statement on such matters: (1) The beach and dune system is an integral part of the coastal system and represents one of the most valuable natural resources in Florida, providing protection to adjacent upland properties, recreational areas, and habitat for wildlife. A coastal construction control line (CCCL) is intended to define that portion of the beach and dune system which is subject to severe fluctuations caused by a 100-year storm surge, storm waves, or other forces such as wind, wave, or water level changes. These fluctuations are a necessary part of the natural functioning of the coastal system and are essential to post-storm recovery, long term stability, and the preservation of the beach and dune system. However, imprudent human activities can adversely interfere with these natural processes and alter the integrity and functioning of the beach and dune system. The control line and 50-foot setback call attention to the special hazards and impacts associated with the use of such property, but do not preclude all development or alteration of coastal property seaward of such line; Fla. Admin. Code R. 62B-33.005, Department Policy Statement on Permits. The exercise of this discretion is guided by criteria under rule. Among those criteria are those found in 62B- 33.005(4)(g): The construction will not cause a significant adverse impact to marine turtles, immediately adjacent properties, or the coastal system unless otherwise specifically authorized in this rule chapter. Chapter 62B-33, Florida Administrative Code, defines the term "Impacts" to include separate definitions for the terms "Adverse Impacts," "Significant Adverse Impacts," "Minor Impacts," and "Other Impacts": "Impacts" are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows: "Adverse Impacts" are impacts to the coastal system that may cause a measurable interference with the natural functioning of the system. "Significant Adverse Impacts" are impacts of such magnitude that they may: Alter the coastal system by: Measurably affecting the existing shoreline change rate; Significantly interfering with its ability to recover from a coastal storm; Disturbing topography or vegetation such that the system becomes unstable or suffers catastrophic failure; . . . * * * (d) "Other Impacts" are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access. Fla. Admin. Code R. 62B-33.002(30). Minimization of Impacts and No Significant Adverse Impacts The site selected on the Ray property for the proposed project poses impacts to Mrs. Pope's duplexes during a storm event such as a 100-year storm. Because of the shore- parallel dimension of the proposed structure (84 feet), storm- generated waves and storm surge would be concentrated into the relatively narrow gap between the proposed structure and the duplexes. The resulting hydrodynamic load would cause scouring of the foundations of the duplexes. The proposed project has "frangible" or "breakaway" ground level walls. They would pose the potential for generating waterborne missiles that, hydro-dynamically propelled, would damage the duplexes. The proposed project was designed in accordance with the American Society of Civil Engineers 7 Code ("ASCE-7") and most pertinently (since referenced in the Construction Line Statute), the Florida Building Code. But the Building Code does not take into consideration a proposed structure's design or proposed site on an adjacent property or the adjacent property's structures. The proposed project, moreover, is not designed and sited to mitigate aerodynamic loading on Mrs. Pope's duplexes. During high-wind conditions, there will be a number of wind effects on the duplexes caused by the proximity of the proposed project: gust loading, high turbulence shedding, and vortex shedding among others that can be reasonably expected to cause structural impacts to the duplexes such as suction loads on roofs and eaves, flying debris and window breakage. The proximity of the proposed structure to the Pope property will have a shading effect that will cause adverse impacts on the growth of native coastal vegetation on the Pope property. As a result, there will be a reduction in the interception of wind-driven sand by the vegetation that enables it to develop healthy, deep root systems that add to dune stability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: an impacts assessment be conducted as required by Florida Administrative Code Rule 33.005(3)(a); that the proposed project be re-sited to mitigate the impacts that its siting now poses to the Pope Property and the Popes' duplexes; that the proposed project be permitted to be constructed up to the Construction Line, provided that the permit is supported by both the impacts assessment and a re- siting of the proposed project to mitigate wind, water and shading impacts; and if the proposed project is not supported by an adequate impacts assessment, or if it cannot be re-sited to mitigate the impacts to the Pope Property, that the permit be denied. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2004.
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
Findings Of Fact Nannette K. Scoggins is the owner of the real property located at 5622 Gulf Drive, Holmes Beach, Florida in Manatee County. Nannette K. Scoggins' property, the petitioner's property, 5624 Gulf Drive, and the other adjacent property, 5620 Gulf Drive, are zoned as "A-1 Hotel-Motel" under the City of Holmes Beach Zoning Ordinance. On November 13, 1983, Mrs. Scoggins submitted to DNR an application for a permit for construction seaward of the coastal construction control line (control line). The proposed project, known as Jansea Place, would consist of two multifamily dwellings, four units to a building, divided by a swimming pool. A portion of the most seaward building would extend a maximum of 57 feet seaward of the control line. By letter dated July 11, 1984, DNR notified petitioner that the department was considering the permit application. The petitioner responded by letter dated July 18, 1984, objecting to any construction seaward of the control line. On October 1, 1984, petitioner received notification that DNR intended to recommend approval of the permit. The permit was scheduled for a vote by the Governor and Cabinet on October 16, 1984. The staff of DNR recommended approval of the permit. By telegram dated October 15, 1984, the petitioner requested an administrative hearing, and on October 22, 1984, petitioner filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The application for permit No. ME-89 is a complete application for permit to construct seaward of the coastal construction control line. On October 5, 1983, the Superintendent of Public Works of the City of Holmes Beach certified that this project does not violate any ordinance of the City of Holmes Beach. The plans for the proposed project are signed and sealed by an architect registered in the State of Florida, and the submitted plans comply with the design standards established in Rule 16B-33.07, Florida Administrative Code to resist adequately the natural forces associated with a 100-year return interval storm event. The plans, specifications, drawings and other information submitted to DNR with the application for permit to construct seaward of the coastal construction control line are complete and accurate, and meet the requirements of DNR for that purpose. Under the provisions of Rule 16B-33, Florida Administrative Code, the application was determined to be complete on August 6, 1984. The proposed construction is located landward of an existing vertical concrete bulkhead. The seawall was built jointly by the Scoggins and Mr. McLean, who owns the property immediately to the south of the Scoggins' property. The seawall was built after the hurricane of 1972 because the existing dune system had been destroyed. Since that time, the mean high water line has continued to encroach landward to the point where it is now east of the wall. However, the seawall is not necessary for the protection of the proposed building. Although the seawall would fail under the direct impact of a major hurricane, the proposed building is adequately designed to withstand the impact erosion, the wave loads, the winds, and the water forces associated with a major hurricane. The necessity and justification for the project's location in relation to the control line is stated in the application, and petitioner has not challenged the necessity or justification. The City of Holmes Beach Zoning Ordinance requires that the buildings be separated by a minimum of 30 feet. Since the proposed buildings are separated by 30 feet, the proposed seaward building is located as far landward as possible without violating the zoning ordinance. Erosion and structural damage occurred as a result of Hurricane Agnes in 1972 and the "No Name" storm in 1982 in the area between 1,000 feet south of the Scoggins' property and 500 feet north of the Scoggins' property. Although the beach was fairly stable from 1974 to 1979, the beach began to erode in 1980. When the seawall was built in 1974, the dune line was even with the seawall. However, as can be seen from a comparison of the photographs taken in June of 1979 with those taken in early 1985, the beach has eroded since June of 1979 and the dune line is now several feet landward of the seawall. The DNR recommendation for approval of the Scoggin's permit application was based upon historical erosion data for the period between 1940 and 1974, which was the most recent data available that could be used to review the project. Mr. Clark stated that the application was recommended for approval based on the design of the proposed building and its alignment with existing structures built seaward of the control line. The proposed project is located landward of a line of existing structures. Although the adjacent properties have been affected by erosion, there was no evidence presented to show that the existing structures located seaward of the control line have been unduly affected by erosion. In 1974, when the seawall was being constructed, the worker building the seawall dug up part of the petitioner's property and destroyed the sea oats he had planted. However, the proposed project has a driveway encircling the building which would provide vehicular access to the seawall if necessary. The proposed project will partially obstruct petitioner's view to the southwest. However, there was no evidence presented that petitioner's property or the other adjacent property, would be adversely affected in any other way by the proposed project. There was no evidence presented that the proposed project would be affected by, or have an effect on, beach or coastal erosion. The proposed project would have no effect on the beach dune system.
Recommendation Upon consideration of the foregoing, it is recommended that DNR issue Permit Number ME-89 to Nannette K. Scoggins. DONE and ENTERED this 28th day of June, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS 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 28th day of June, 1985.
Findings Of Fact Background Petitioner is incorporated in the State of Florida as a not-for-profit corporation. The corporate purpose of Petitioner includes the improvement of environmental health. Petitioner's activities in this regard are especially focused upon Manatee and Sarasota Counties, including the City of Bradenton (Bradenton). Petitioner has about 2500 members. Members of Petitioner reside in Bradenton. These persons use the water and roads adjacent to Perico Island. Insubstantial evidence suggests that Petitioner, through its members, submitted oral objections to Bradenton at anytime during the planning process. Petitioner mailed a letter dated March 7, 1989, to the Department of Community Affairs (DCA) with a copy sent to Bradenton. The letter clearly constitutes written objections to the proposed plan. Bradenton initially received the March 7 letter on March 9. It is difficult to determine whether Bradenton received a copy of the March 7 letter after the issuance of the Objections, Recommendations, and Comments (ORC) by DCA. Even if Bradenton received a copy of the March 7 letter prior to the issuance of the ORC, it is impossible to determine if Bradenton received another copy of the letter with the ORC, which may contain numerous attachments consisting of the comments of other parties. The ORC was not introduced into evidence. The only indication in the record, including pleadings, of the date of the ORC is in Exhibit 2 attached to the Deposition of Robert Pennock, which itself is City Exhibit 6. Exhibit 2, which is a letter from DCA to Bradenton, mentions the ORC dated March 17, 1989. This date would be at the outside of the range for DCA to submit an ORC in response to a proposed plan transmitted, as in the present case, on November 23, 1988. 9/ By Request for Admission served November 21, 1990, Petitioner requested Bradenton to admit: "that [Petitioner] submitted written objections to [Bradenton's plan] which [Bradenton] received after it received DCA's ORC report." Bradenton's response to the request, in its entirety, states: The City has received a copy of the correspondence relating to possible "objections" to the City's Plan that were mailed directly to [DCA]. The date of that correspondence was March 7, 1989 and addressed to Robert G. Nave, Chief, Bureau of Local Planning, and was written by Attorney Thomas W. Reese. By date stamp on the copy of the correspondence in the possession of the City, it is believed that the document was received on March 9, 1989. The City does not admit that the correspondence of March 7, 1989 from Mr. Reese to Mr. Nave meets the intent of the statute for establishing standing and to the contrary, does not comply and does not establish such standing. The response ignores the portion of the request directed toward the factual question of the order in which Bradenton received the March 7 letter and the ORC. The significance of the chronology, as opposed merely to the acknowledgement of receipt of the March 7 letter, may have been lost upon Petitioner's counsel, who inexplicably asserted in opening statement that the ORC was issued on December 19, 1988. Transcript, page 57. Given the probable chronology of events recited in the preceding footnote, one of the few certainties concerning this matter is that the ORC was not issued on December 19, 1988. Intervenor is a Delaware corporation that owns property in Bradenton. Intervenor owns the western peninsula of Perico Island, which is described in detail below. Intervenor submitted oral or written objections to Bradenton not later than the transmittal hearing on November 23, 1988. Prior to transmitting the proposed plan to DCA, Bradenton removed the coastal high hazard designation from much of the western peninsula of Perico Island and changed the designation of the affected land to ten units per acre. Bradenton is a municipality located in western Manatee County. The city, which straddles the mouth of the Braden River to the east, generally lies along the southern bank of the Manatee River less than three miles upstream from where it empties into lower Tampa Bay. Wares Creek runs from south to north through the center of Bradenton and empties into the Manatee River. Palma Sola Bay divides the majority of the city from Perico Island. The southern half of Perico Island, which consists of eastern and western peninsulas, is within the city limits. Perico Island, which is generally bounded on the west by Anna Maria Sound and Sarasota Pass, is located between Tampa Bay to the north and Sarasota Bay to the south. Barrier islands to the west, most notably Anna Maria Island, tend to protect Bradenton from direct Gulf waves. On August 1, 1989, Bradenton adopted its comprehensive plan (Plan). As Bradenton noted accurately in its cover letter to DCA, no DCA representative attended the final adoption hearing on July 26, 1989, although Bradenton had requested that DCA send a representative to the hearing. 10/ On September 16, 1991, DCA issued a notice of intent to find the Plan in compliance. Designation of Coastal High Hazard Area Data and Analysis The Data and Analysis 11/ contains a Coastal Area Map, which is on page 150 of the Plan. The map depicts those areas below two feet elevation as the Coastal High Hazard Area. The map shows that the Coastal High Hazard Area includes about one-half of the western peninsula of Perico Island and relatively thin strips along the south and east borders of the eastern peninsula of Perico Island. The only other portions of Bradenton designated as Coastal High Hazard Area are parts of islands in the Braden River and two small parcels on the west bank of the Braden River. The Data and Analysis does not further address the Coastal High Hazard Area. In particular, the Data and Analysis fails to explain why the two-foot elevation was selected to define the Coastal High Hazard Area. The Data and Analysis does not mention the location of the Federal Emergency Management Agency velocity zone (V-zone) or the Department of Natural Resources Coastal Construction Control Line. The portion of Perico Island within the city is bounded on the north by State Road 64. Immediately north of State Road 64, the remainder of Perico Island is in unincorporated Manatee County. The Manatee County comprehensive plan designates the entire island north of the road as coastal high hazard area. However, the county plan notes extends the coastal high hazard area to the five- foot contour. The county plan also divides the coastal high hazard area into two areas: the more critical area, which corresponds to the V-zone, that is subject to wave action and the less critical area that is subject to storm- induced damage. Some testimony suggests that the Manatee County plan has more stringent land use constraints for land uses within the V-zone than for land uses elsewhere within the county's coastal high hazard area. Nothing in the record indicates the extent of the V-zone over any part of Perico Island. Early in the consideration by the City Council of the proposed plan, the coastal high hazard area included all land seaward of four feet elevation. The four-foot contour had been selected because of data suggesting that the "spring high tide" runs to an elevation of 3.62 feet, which was rounded up because Bradenton had only one-foot contour maps. By letter dated November 16, 1988, a representative of Intervenor complained that the four-foot contour was "scientifically unjustified and legally unsupportable." The letter states: Only a portion of the westerly peninsula is in the [V-zone] and even that portion of the property could be partially used with proper construction safeguards. The staff position of four feet seems to be based upon the fact that spring high tide occurs at elevation 3.56 feet but no one knows where that elevation occurs on this property nor does anyone know where the elevation 4.0 feet occurs on this property. The relationship between spring high tide and coastal high hazard is likewise unestablished. Bradenton's Chief of Planning and Zoning, Margaret Swanson, testified that the two-foot contour line "definitely" includes the entire V-zone. Deposition of Margaret Swanson, page 48. Jerry West, Bradenton Planning and Development Director and Ms. Swanson's supervisor, testified likewise at the hearing. Transcript, page 90. Petitioner produced no contrary evidence as to the location of the V- zone or the Coastal Construction Control Line. Likewise, there is no evidence that either peninsula has historically experienced destruction or severe damage from storm surge, waves, erosion, or other manifestations of rapidly moving or storm driven water. The spring high tide appears to be an unusual event, perhaps even occurring less often than annually. The evidence fails to link the spring high tide with destruction or severe damage from rapidly moving or storm driven water anywhere in Bradenton. Plan Provisions Coastal Management/Conservation Element (Coastal) Goal 5 states: Use of coastal areas in a way which preserves natural systems, provides for public access, and minimizes storm and flood hazards to population and property, including public facilities. Objective 1: Severely limit development in low lying coastal areas. Policy 1: A coastal high-hazard area shall be established through the Land Use and Development Regulations to include all coastal lands along the Braden and Manatee Rivers and Palma Sola Bay which are below 2 feet in elevation. Policy 2: Establish a conservation zone including all conservation lands as shown on the Future Land Use Map and all undeveloped areas below the Coastal High Hazard Line (2-foot contour line) and prohibit construction of building, roadways and parking areas in that zone except to provide shoreline access points as determined necessary or of overriding public interest by City Council. . . . Policy 3: Prohibit the filling of coastal areas below the 2-foot contour line except in cases where such lands are completely separated from the shoreline by land of higher elevation or where determined necessary or of overriding public interest by City Council. Policy 4: The City shall not locate infrastructure in the Coastal High Hazard Area (below the 2-foot contour line) except as determined necessary or of overriding public interest by City Council. * * * Objective 5: Keep population and investment low in areas vulnerable to coastal flooding. Policy 1: Designate undeveloped coastal acreage with areas below the 8-foot elevation contour line as PDP (planned development project) and limit residential development to low density below the 8-foot contour. Limit non-residential development below the 8-foot contour line to water dependent uses. Policy 2: Locate all public facilities outside of the coastal high hazard area. * * * Policy 4: Discourage the location of high density residential projects, public housing, housing for the elderly, mobile homes and group homes in high priority hurricane evacuation zones through the Land Use and Development Regulations. The Future Land Use Map (FLUM) designates as Conservation all of the land on Perico Island below the two-foot contour. According to Policy 1 under Objective 1 of the Future Land Use Element (FLUE), the "Recreational/Conservation" designation is for "[p]arks, designated open areas and conservation." No residential uses are permitted in the Recreation/Conservation category. The only FLUE goal is: A land use pattern which promotes the well being of the community in regard to compatibility of adjacent uses, building types and residential densities, efficiency of utilities and roadways, harmony with the natural environment and protection from natural hazards. Objective 1: Location of new development and redevelopment in a manner conducive to compatibility of land uses, sensitive to natural resources and natural hazards and consistent with the availability of public facilities. * * * Housing Element (Housing) Policy 1 under Objective 1 is: Designate vacant tracts of land for residential use on the future land use map except where unsuitable for that use because of incompatible adjacent existing uses, inappropriate elevation or drainage conditions or other safety hazard. State Plan Provisions There are no relevant provisions of the State Plan with which the Coastal High Hazard Area is arguably inconsistent. Designation of Ten Units Per Acre on Western Peninsula of Perico Island Data and Analysis The Data and Analysis identifies Perico Island and the islands of the Braden River as the two areas of major environmental concern in Bradenton. The Data and Analysis states: The value of these lands is that they are coastal lands with abundant sea life and habitat. In an urbanized area where much of the natural shoreline has been destroyed, these remaining lands should be protected because of their intrinsic value as well as because of their dwindling supply. Plan, page 157. The Data and Analysis notes that Perico Island is entirely within the 100-year flood zone and is less than five feet above sea level with "large areas" below the mean high water line. The western peninsula of Perico Island is lower than the eastern peninsula. The highest elevation on the western peninsula is five feet, which is within 100 feet of State Road 64. The elevation of most of the upland beyond 100 feet of the road is less than three feet. The elevation of much of the interior of the eastern peninsula is 3-4 feet. Although Perico Island contains Australian Pine and Brazilian Pepper, which are nuisance exotics, the Data and Analysis explains that valuable natural habitat remains: A great diversity of animal and plant life is found on the island[, including roseate spoonbills, brown pelicans, osprey, and an occasional bald eagle]. The mangrove swamps, mud flats, and marine grass flats fringing Perico Island support a variety of marine life including commercial and game fishing species such as mullet, trout, redfish, and snook, as well as shellfish. Plan, page 158. The habitat of the endangered West Indian Manatee includes the coastal areas in question. In addition to the above-noted animal species that are listed as endangered, threatened, or of special concern, the threatened butterfly orchid is also found on Perico Island. The Data and Analysis reports that Palma Sola Bay is a Class II waterbody, which means that it is suitable for shellfishing. Although it has not been approved for such purpose, its waters regularly satisfy Class II standards with only an occasional violation of the Class II bacteriological standards. According to the Data and Analysis, Palma Sola Bay has been designated as part of the Sarasota Bay Estuary of National Significance. Plan, page 98. Both Anna Maria Sound and Palma Sola Bay are part of the Sarasota Bay estuarine system and, as such, are Outstanding Florida Waters. 12/ Concluding its discussion of the two areas of major environmental concern to Bradenton, the Data and Analysis states: As with Perico Island, the Braden River and its wetlands are an invaluable natural resource. Such tidal wetlands not only reduce water pollution by filtering pollutant-laden runoff, but also influence water quantity by retaining water during dry periods and absorbing it during flooding. Wetlands also stabilize the shoreline and act as a hurricane buffer. They provide essential breeding, nesting, resting areas for myriad fish and bird species and support a diverse food web extending to terrestrial animals as well. ... Plan, page 159. The Coastal Vegetation map shows that the portion of the western peninsula corresponding roughly with the Coastal High Hazard Area is vegetated by coastal wetlands with considerable mangrove growth. Plan, page 151. Perico Island is one of "three areas where future development will impact the coastal area." Plan, page 160a. The Data and Analysis notes that an historic shell mound on the western peninsula must be "protect[ed from r]esidential development." However, the designation of the western peninsula at ten units per acre, as necessarily conceded by Mr. West, is not a low density. The Data and Analysis surmises that the impact of future development on at least the eastern peninsula of Perico Island is largely unavoidable: Because of a Development Order issued on a 1975 Development of Regional Impact application, the conditions of development are established and little can be done to modify them to meet the policies of this plan. Id. The Data and Analysis describes the 1975 development order as: authoriz[ing] 1512 dwelling units and a neighborhood commercial center and call[ing] for the preservation of lands below the 1.5 foot elevation and in an historic shell mound on the western peninsula of the site. Development of the western peninsula was prohibited by the approval stipulations. Plan, page 158. At the time of the application for what is known as the Spoonhill Bay DRI, Intervenor or an affiliate of Intervenor owned both peninsulas. After obtaining the development order, Intervenor sold all or part of the eastern peninsula to developers, but retained the western peninsula. The application for development approval was for a total of 1776 units on 102.6 acres. The entire land area was about 546 acres with 171 acres of mangroves conservation, 200 acres of marine conservation, 10 acres of historic preservation, almost 2 acres of neighborhood commercial, 26 acres of lakes, and 35 acres of other open space and recreation. The map accompanying the application shows two sites for historic conservation, both evidently above the two-foot contour line. According to the DRI application, both peninsulas of Perico Island contain about 184 acres above the 1.5-foot contour. The western peninsula encompasses 114 acres with about 10-16 acres higher than 1.5 to 2 feet in elevation. According to the application, the dwelling units per gross acre would be 3.2 and the dwelling units per net acre would be 9.7. The gross acreage density is based on total acres, including mangroves, lakes, and marine conservation. The net acreage density is impossible to calculate from the information provided. 13/ The development order, which was approved May 28, 1975, by the Bradenton City Council, approves the development subject to the following conditions: The developer shall initiate a positive program for the long run protection of the ecologically important undeveloped areas of the site. . . . * * * 3. The applicant shall work in consultation with the State Division of Archives, History and Records Management to insure the protection and preservation of the two sites of historical and archaeological significance found on the project site. Protection of the Indian Mound area shall be by deed, dedication, or other appropriate legal instrument to insure that such sites are preserved in perpetuity. * * * 5. With respect to responsibility for roadway improvements outlined in the transportation section of the DRI report: * * * (d) To further reduce traffic impact of the project, no residential development as originally proposed by the developer will be carried out on the westerly peninsula of the developer's property. ... Total number of residential units as proposed shall be reduced by 15% from 1,778 units to 1,512 units, all to be located on the easterly peninsula. * * * 7. Developer shall furnish at no cost to City not less than one acre site to accommodate governmental services that will be generated by the development, e.g., fire, police, etc. Site location shall be subject to approval of both parties. The Data and Analysis includes among "acreage not presently slated for development . . . 10 acres, western peninsula, Perico Island[,] includes Mangrove areas, low-lying areas and an Indian shell mound." Plan, page 12. However, the Data and Analysis determines that this area is "suitable for development," which means that the land is "above mean high water line and is served by public facilities." Plan, page 14. The soils map shows that the entire western peninsula, as well as the western half of the eastern peninsula, is characterized by nearly level, very poorly drained sandy and organic soils in tidal mangrove swamps. Plan, page 13. The soils of the western peninsula and western half of the eastern peninsula of Perico Island, as well as the soils of the Braden River islands, are the only soils in Bradenton that are generally "very poorly drained" and account for very little of the land area of the city. Both peninsulas of Perico Island are identified as Neighborhood 12.04 in the Plan. In the discussion of Neighborhood 12.04, the Data and Analysis states that a condition of the development order "was that the smaller of the two peninsulas is not to be developed because of environmentally sensitive and historically significant areas as well as traffic impacts." Plan, page 97. The Data and Analysis notes that the two shell middens, which date from "prehistoric times," have been damaged by erosion and amateur excavation. But the Data and Analysis recommends that the Indian mounds be professionally excavated or protected "because of their potential value in adding to the small amount of information available about prehistoric settlements in this area." Plan, page 97. The Data and Analysis notes that approved development has provided 600 units through 1986 at a density of 6.3 units per acre. As of that time, 116 acres were in residential use, one acre in commercial use, and 70 acres were vacant. The Data and Analysis projects that 800 units will have been constructed by 1990. In discussing Neighborhood 12.04, the Data and Analysis reports that no public recreation areas are proposed for the development, which will be served exclusively by private recreation areas. In addition, State Road 64 is the hurricane evacuation route for Perico Island as well as Anna Maria Island, which is also served by another escape route. The discussion of Neighborhood 12.04 concludes with several recommendations. Among them are the following: Require the preservation of and protection of the historic shell middens on the western peninsula if the peninsula is ever developed. Strictly enforce the flood protection ordinance for development of the island. Require mangrove and water quality protection as part of development approvals. Hurricane evacuation and traffic impacts on State Road 64 shall be considered as an important issue in review of applications for development approval. Any applications by property owners to increase the density of development in the neighborhood shall be denied. Participate in the studies of Sarasota and Palma Sola Bays under the National Estuary Program and utilize the recommendations coming forth from that program to the extent possible. Nothing in this Plan shall limit or modify the rights of any person to complete any development that has been authorized as a development of regional impact pursuant to Chapter 380 or who has been issued a final local development order, and development has commenced and is continuing in good faith. Any amendments to the development order for the Development of Regional Impact shall comply with or require compliance with all of the policies of this plan particularly those concerning protection of environmentally and historically sensitive lands, the coastal high hazard area and hurricane vulnerability zone. Plan, pages 98-99. The Evacuation Map shows that all of Perico Island is in Evacuation Zone A. Plan, page 153. This is the highest priority evacuation zone in Bradenton. This zone also encompasses bands of land along the Manatee River and both shorelines of the Braden River. Additional data and analysis are included in the Surface Water Improvement and Management Program for Tampa Bay published on August 30, 1988 (SWIM Plan). The SWIM Plan notes that the Tampa Bay estuary, of which Anna Maria Sound, Palma Sola Bay, and the Manatee and Braden Rivers are a part, suffers from interconnected problems, including habitat destruction (e.g., dredging, filling, hardened shorelines); water quality inclusive of eutrophication (e.g., point and non-point stormwater runoff, municipal and industrial effluents, septage); [and] altered freshwater inputs (e.g., dams, withdrawals). SWIM Plan, page 1. Addressing the functions of area wetlands, the SWIM Plan states: In addition to their contributions to the biology of the marine ecosystems, coastal and estuarine wetlands play an important role in modifying the geologic and hydrographic characteristics of the area. Acting as baffles, roots and leaves reduce the velocity of water over the bottom causing suspended particles to settle out and become trapped at the base of the plants. In this way mangroves, marshes, and seagrasses reduce turbidity, increase sedimentation rates, stabilize sediments, and attenuate wave action on adjacent shorelines. The binding and stabilization characteristics of these habitats are documented by reports of some coastal marshes and seagrass meadows surviving the destructive scouring forces of coastal storms and hurricanes in the Gulf states. SWIM Plan, page 23. However, these wetland systems "face increasing pressure from development of all types," notwithstanding the Warren S. Henderson Wetlands Protection Act of 1984. SWIM Plan, page 27. The water quality is directly threatened by the nutrients introduced into the water by, among other things, untreated stormwater runoff and the "extensive transformation of rural uplands to urban uses." SWIM Plan, pages 26-27. Plan Provisions The FLUM contains only two residential categories. All of Perico Island above the Coastal High Hazard Area is designated "Residential--maximum 10 units per acre." The other category permits up to 15 units per acre. FLUE Policy 1 under Objective 1 describes the Residential categories as follows: Residential with densities limited to 15 units per acre in the high density area and 10 units per acre in the moderate density area and limited by recommendations by neighborhood in this plan. . . . Neighborhood commercial uses permitted as part of the residential development plan. .. . FLUE Policy 2 under Objective 1 is: The recommendations for each neighborhood contained in this plan are hereby adopted as part of this plan and are to be adhered to in all land use decisions to be made by the City. FLUE Policy 3 under Objective 1 states: The future land use map, neighborhood recommendations and all other relevant policies under this plan are to be used as a basis for the revision of the land use and development regulations, including the zoning atlas. FLUE Objective 3 provides: Management of future development through adoption and enforcement of regulations which promote the use of land in a manner sensitive to public health and safety and to soils and topography. FLUE Objective 4 and relevant policies are: Objective 4: Limitation of population in first priority hurricane evacuation zones identified in the local and regional hurricane evacuation plan. Policy 1: Deny requests for increases in density on property approved for development if the property is located in the first priority regional hurricane evacuation zone. Policy 2: On the Braden River islands, designate as conservation area all lands below the 2 ft. contour line, and allow only recreational/open space or residential use at a gross density maximum of 3 units per acre on the uplands. Coastal Goal 2 is "[i]mprovement of surface water quality." Objective 1 is: "Preservation of water quality cleansing and erosion control capabilities of natural, vegetated shorelines." Policy 4 is to "[r]equire by ordinance by December 1, 1989 best management practices for erosion control during and after land alteration projects." Coastal Objective 2 under Goal 2 is: "Reduction of pollutant loads reaching waterways from urban stormwater." Policy 2 defers to land development regulations the job of establishing standards for new developments to "provide on-site detention and filtration of stormwater runoff to remove oils, silt, sediment, nutrients, and heavy metals, and [to] require erosion control during construction." Coastal Goal 4 provides: "Protection and enhancement of wildlife habitat and vegetation." Objective 1 deals with the Braden River estuary and islands and includes policies restricting development to uplands, generally prohibiting the removal of wetlands vegetation, and requiring that development proceed as a planned development project "to ensure site-sensitive planning and review." No similar provisions apply to Perico Island. Coastal Objective 2 under Goal 4 is: "Preservation of wetlands, including coastal wetlands vegetation, living marine resources and wildlife habitat." Policy 1 states: "[b]y December 1, 1989 adopt regulations to prohibit the removal of wetland vegetation except for limited access points." Policy 2 is, "[b]y December 1, 1989 require that development approvals for land with wetland area stipulate wetland protection measures to ensure that upland construction and land use do no affect the wetlands." Policy 3 states: "[b]y December 1, 1989 adopt regulations to require the identification of wildlife habitats as part of planned development project applications and . . . provide mechanisms to require protection of valuable habitat." Policy 5 provides: "[b]y December 1, 1989 adopt regulations to limit disturbance of seagrass beds by prohibiting development and land uses in seagrass areas and where they will result in an increase in boating in seagrass areas except where necessary to maintain existing facilities." Policy 7 is to develop with Manatee County a management plan for the Braden River estuary, Manatee River, and Palma Sola Bay. Policy 8 is to adopt by ordinance, within six months of their issuance, the recommendations of the Sarasota Bay National Estuary Program. Coastal Goal 6 is: "Fast evacuation prior to natural disasters such as hurricanes." Objective 1 is a "workable evacuation plan, geared toward maintaining present evacuation times." Goal 4 of the Public Facilities Element (PFE) provides: "Prevention of flood damage and improvement of surface water quality." PFE Objective 1 under Goal 4 sets forth the following provisions concerning drainage level of service standards. Policy 1a. The peak discharge rate from new development shall be equal to or less than the peak discharge rate that existed prior to development based on a 25-year frequency, 24-hour duration storm event. * * * Policy 1c. Internal or on-site drainage facilities of developments shall be designed to accommodate the stormwater resulting from a design storm of 10-year frequency, critical duration, based on the project site's time of concentration. Policy 2: The applicability of the level of service standards to various types and sizes of private development shall be set forth in the land use and development regulations adopted by December 1, 1989. PFE Objective 4 under Goal 4 is: "Nondegradation of capacity of natural drainage features." Policy 1 states: All new developments shall be required by land use regulations adopted by December 1, 1989 to provide stormwater retention and drainage facilities to curb increased runoff to natural drainage features. PFE Objective 5 under Goal 4 is: "Upgrading of existing drainage facilities to meet future needs." Policy 1 states: Stormwater facility improvements as proposed in the Comprehensive Stormwater Management Study, 1981 and subsequent updates shall be scheduled into the Capital Improvements program. 14/ State Plan Provisions The relevant provisions of the State Plan are set forth in Findings of Fact Paragraphs 74 et seq. Stormwater Provisions Plan Provisions Already cited above, PFE Goal 4; PFE Objectives 1, 4, and 5, as well as various policies under these objectives; Coastal Goal 2, Objective 2 under Goal 2, Policy 2 under Objective 2; and Housing Policy 1 under Objective 1 address stormwater and drainage. PFE Goal 1 is: Provision of public facilities in a manner which protects investments in existing facilities, promotes orderly, compact urban growth, and promotes the quality of natural resources, particularly surface waters. PFE Objective 1 and Policy 1 under Goal 1 are to maintain the applicable level of service standards for public facilities and not to issue development orders if the issuance would result in a violation of a level of service standard. PFE Objective 2 under Goal 4 is: "Correction of existing stormwater facility deficiencies by the year 2010." Policy 1 is: Stormwater facility improvements as proposed in the Comprehensive Stormwater Management Study 1981 hereby adopted as an appendix to this plan and subsequent updates shall be scheduled into the Capital Improvements program. PFE Objective 3 under Goal 4 is: "Water conservation through use of stormwater runoff for irrigation." SWIM Plan Provisions The SWIM Plan provides as follows with respect to water quality: Initiative 1. Reduce point and non-point source pollutant loadings to attain water quality necessary to restore and maintain healthy and productive natural systems, protect human health, and . . . attain the highest possible water use classification. * * * 1.c. Urban Stormwater Management Strategies: --Reduce the levels of nutrients and other contaminants in urban stormwater runoff by requiring, if feasible, that the quality of stormwater discharges be no worse than the State water quality criteria or the existing quality of the receiving water body, whichever is better. The feasibility of implementing this objective will be examined through a review of federal, state, District, and local rules pertaining to stormwater management. * * * --For all new upland development or redevelopment within the Tampa Bay watershed, runoff rates should not exceed those of natural, undisturbed conditions. The feasibility of implementing this objective will be examined through a review of federal, state, District, and local rules pertaining to stormwater management. Perico Island, Anna Maria Sound, and Palma Sola Bay, as well as the Manatee and Braden Rivers, are within the jurisdiction of the Southwest Florida Water Management District's SWIM program for Tampa Bay. State Plan Provisions Section 187.201(8) addresses water resources. The goal is to "maintain the functions of natural systems and the overall present level of surface and ground water quality." Policy 8 is to "[e]ncourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features." Policy 12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." Section 187.201(9) addresses coastal and marine resources. The goal includes ensuring that development does not "endanger . . . important natural resources." Policy 4 is to "[p]rotect coastal resources [and] marine resources from the adverse effects of development." Policy 6 is to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Policy 7 is to "[p]rotect and restore long-term productivity of marine fisheries habitat and other aquatic resources." Section 187.201(16) addresses land use. The goal is to direct development to those areas that have, among other things, the "land and water resources . . . to accommodate growth in an environmentally sensitive manner." Policy 6 is to "[c]onsider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding." Section 187.201(22) addresses the economy. The goal is to "promote an economic climate which provides economic stability, maximizes job opportunities, and increase per capita income for its residents." Policy 3 is to "[m]aintain, as one of the state's primary economic assets, the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resources." Historic Provisions Data and Analysis The Data and Analysis discloses that 85 structures in Bradenton were added to the Florida Master Site File following an historic survey in 1980. As a result of the survey, two historic districts were established: Downtown Bradenton and Old Manatee. The Data and Analysis reports that the Braden Castle ruins and Braden Castle Tourist Camp are included on the National Register of Historic Places. Plan Provisions The sole goal of the Historic Preservation Element (Historic) is: "To preserve Bradenton's architectural heritage as part of the effort to redevelop the old portions of the City." Historic Objective 1 is: "Disseminate information on the historic-architectural resources of the community and of the incentives for preservation and restoration of these resources." Historic Objective 2 is: "Restoration of historic structures and sites." Historic Objective 3 is: "Encourage other governmental agencies to consider historic and architectural value when taking actions affecting such properties in Bradenton and to modify their actions as to enhance rather than detract from these resources." Historic Policies include the dissemination of information pertinent to historic preservation, allowance of exemptions from the building code for certain historic rehabilitation, and cooperation with other governmental agencies in historic preservation efforts. Miscellaneous Provisions Plan Provisions Regarding Level of Service Standard for Recreational Facilities Recreation Element (Recreation) Objective 3 is: Provision of neighborhood parks located within walking distance of population served and having adequate acreage and facilities to serve the size and type of population served. Recreation Policies under Objective 3 include: Policy 1: One acre of neighborhood park per 500 people shall be the level of service standard for recreation. Policy 2: A neighborhood park shall be defined as a parcel of land of a half-acre or more located within a half-mile of the population served and having the following minimum improvements: benches, trees, open or grassy areas and play or exercise equipment facilities geared to the type of population served. Policy 3: Land use and development regulations adopted pursuant to this plan will require new residential development to provide recreation areas which meet the needs of that development based upon the adopted level of service standard for neighborhood parks. Such recreations shall serve in lieu of public neighborhood parks for new development. Plan Provisions Regarding Scheduling of Capital Improvements Necessary to Attain Level of Service D for Roads There are no roads identified in the Traffic Circulation Element (Traffic) for which Bradenton has jurisdiction that are projected not to achieve a level of service of D or better. The Data and Analysis states that seven road segments in Bradenton will attain a level of service standard worse than D during the planning timeframe. Plan, pages 125-27. However, the Data and Analysis indicates that the federal, state, or county has jurisdiction over each of these segments. Plan, page 114. Ultimate Findings of Fact Designation of Coastal High Hazard Area Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of supporting data and analysis. The Data and Analysis fails to indicate whether the Coastal High Hazard Area encompasses at least the V-zone or the land seaward of the Coastal Construction Control Line. However, Petitioner has failed to prove that the Coastal High Hazard Area excludes any part of the V-zone or the land seaward of the Coastal Construction Control Line. Testimony suggests that the Coastal High Hazard Area includes at least the V-zone. Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of the use of available appropriate data concerning historic damage and scientifically predicted damage of moving or storm driven water. The record contains no substantial evidence as to qualifying damage or destruction to areas outside the V-zone or landward of the Coastal Construction Control Line. Petitioner has failed to prove that the designation of the Coastal High Hazard Area is inconsistent with Plan provisions to protect coastal resources, protect the public from natural disasters, and maintain and hurricane evacuation times. Likewise, Petitioner has failed to prove that the designation of the Coastal High Hazard Area is inconsistent with provisions of the State Plan concerning housing, public safety, water resources, natural systems and recreational lands, land use, and governmental efficiency. As noted above, Petitioner failed to prove that the designation of the Coastal High Hazard Area is unsupported by data and analysis. Without proof that the designation of the Coastal High Hazard Area is incorrect, Petitioner is unable to prove the inconsistencies identified in the preceding Paragraph. Designation of Ten Units Per Acre on Western Peninsula of Perico Island Petitioner has proved to the exclusion of fair debate that the designation of up 10 units per acre is inconsistent with the criterion of supporting data and analysis, including a land use suitability analysis. The density of ten units per acre is, to the exclusion of fair debate, excessive under the circumstances. The soils are very poorly drained. The land above the Coastal High Hazard Area is very low. Except for 100 feet of frontage along the road, the entire upland will be flooded with the spring tide, which occurs with some regularity if not annually, as well as by flooding associated with hurricanes and tropical storms, even if the water is not storm driven. In the absence of an entirely elevated community, the spring tide and other coastal flooding will render inaccessible any interior residences, as well as inundate interior public facilities, unless natural drainage features and the mangrove fringes of the western island are significantly altered. The low elevation and very poorly drained soils increase the difficulty of effective stormwater management. At the same time, stormwater management is more critical on the island, which is surrounded by Outstanding Florida Waters and, in the case of Palma Sola Bay, Class II waters. The Spoonbill Bay DRI Development Order, which also serves as data and analysis, does not support the designation of ten units per acre for the western peninsula of Perico Island. The Development Order does not expressly transfer development rights from the western to the eastern peninsula. However, the Development Order rejects a request to develop the western peninsula at a density approximately equal to that accorded the western peninsula by the Plan. The Development Order expressly bases the denial upon transportation considerations. In light of other evidence, including quoted portions of the Data and Analysis, the cited transportation considerations probably included concerns as to the impact of transportation, including attendant stormwater runoff, upon the island's natural resources. In any event, Bradenton chose merely to designate up to ten units per acre on the western peninsula without addressing the bases for its denial, 15 years earlier, of approval to develop any portion of the western peninsula. Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with Coastal Goal 5, Objective 1 under Goal 5, Objective 5 under Goal 5, and Policies 1 and 4 under Objective 5. Goal 5 is to use coastal areas so as to preserve natural systems and minimize storm and flood hazards, among other things. Objective 1 is to limit development severely in low lying coastal areas. Objective 5 under Goal 5 is to keep population and investment low in areas vulnerable to coastal flooding. Policy 1 under Objective 5 is to limit residential development to low density below the eight-foot contour. Policy 4 is to discourage the location of high density residential projects in high priority hurricane evacuation zones, of which Perico Island is one. The Plan provisions set forth in the preceding paragraph preclude the designation of ten units per acre on the western peninsula. It is irrelevant whether the Plan's density designation is gross, so as to include some combination of Coastal High Hazard Area, mangrove fringe, wetlands, lakes, and Indian mounds, or net, so as to exclude all of such nonbuildable features of the land and waterscape characterizing the western peninsula. Even ten units per net acre is inconsistent with and repugnant to each of the provisions described above. 15/ Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with FLUE Objective 1; FLUE Objective 4; and Housing Policy 1 under Objective 1. Petitioner has not proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with FLUE Objective 3 or FLUE Policy 6 under Objective 1, which incorporates into the operative provisions of the plan Recommendation 6 for Neighborhood 12.04. FLUE Objective 1 is to locate new development in a manner sensitive to natural resources and natural hazards. FLUE Objective 4 is to limit population in the first priority hurricane evacuation zones. Housing Policy 1 under Objective 1 is to designate residential tracts except where unsuitable due to inappropriate elevation or drainage or other safety hazard. The designation of ten units per acre, even on a net acreage basis, is inconsistent with FLUE Objective 1 because the new development is not located in a manner sensitive to natural hazards and natural resources. The density designation is also inconsistent with FLUE Objective 4 to limit population in the first priority hurricane evacuation zones. There is no difference whatsoever between the density accorded the western peninsula, which is in Hurricane Evacuation Zone A, and the density accorded large areas of Bradenton, especially just east of Palma Sola Bay, although the latter areas are excluded on the Evacuation Map from any priority evacuation zone. The density designation is also inconsistent with Housing Policy 1 under Objective 1 due to the low elevation and poor drainage associated with the western peninsula. Policy 6 under FLUE Objective 1 incorporates the Recommendations for Neighborhood 12.04, which covers Perico Island. Recommendation 6 is to deny applications to increase the density of development in the neighborhood. FLUE Objective 3 is to manage future development through the adoption and enforcement of regulations to promote the use of land in a manner sensitive to the public health and safety and to soils and topography. Based on the Spoonbill Bay DRI Development Order, the density for the western peninsula may be viewed as zero. No evidence suggests what density the western peninsula may have arguably been accorded by a former comprehensive plan or zoning. However, it is possible to read Recommendation 6 as intending to incorporate the density given the western peninsula by the Plan, so Petitioner has not proved to the exclusion of fair debate that the density designation is inconsistent with Recommendation 6. Petitioner has failed to prove that the density designation is inconsistent with FLUE Objective 3 because of the latter's ineffectiveness. FLUE Objective 3 defers meaningful action to land development regulations and provides no upon real objective upon which an inconsistency determination could be based. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to coordinate coastal densities with the local hurricane evacuation plan. FLUE Objective 4 and Policy 1 under Objective 4 address this criterion. Petitioner has proved to the exclusion of fair debate that the Plan does not coordinate with the Spoonbill Bay DRI Development Order. As noted above, the density designation is consistent with Recommendation 6 of Neighborhood 12.04 only because it is assumed that the increased densities prohibited by Recommendation 6 are measured from the point of view of a former plan or former zoning, rather than the zero density accorded the western peninsula by the Development Order. In such a case, Recommendation 6 fails to coordinate with the Development Order. As noted above, the Data and Analysis fails to discuss why the Plan designates ten units per acre for the western peninsula when the Development Order prohibited any development. In effect, the Plan ignores the Development Order, and the resulting inconsistency is material in light of the impact of such a high density upon the natural resources of the peninsula and the public safety of future residents. However, the preceding two paragraphs are relevant only to consideration of the issue whether the density designation is supported by data and analysis. For reasons set forth in Conclusions of Law Paragraph 55, Rule 9J-5.006(3)(b)6., on which Petitioner relies, does not require an objective to coordinate with an DRI. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criteria of a policy to protect environmentally sensitive land and an objective to protect, conserve, or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat. These criteria are addressed by Coastal Goals 2, 4, and 5 and their objectives, as well as PFE Goal 4, which is to "[p]revent. . . flood damage and improve. . . surface water quality." Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to direct population concentrations away from accurately defined coastal high hazard areas. For the reasons noted above, Petitioner has failed to prove that the Plan inaccurately defines the Coastal High Hazard Area for Bradenton, In the absence of such evidence, the Recreational/Conservation designation effectively addresses this criterion. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criteria of an objective to encourage land uses that are consistent with the community's character and future land use and a policy to provide for the compatibility of adjacent land uses. The FLUE Goal, FLUE Objective 1, and Housing Policy 1 under Objective 1 address these criteria. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to maintain or reduce hurricane evacuation times between the barrier island and mainland. Coastal Goal 6 and Objective 1 address this criterion, as do FLUE Objective 4 and Coastal Goals 1 and 6, although less directly. Petitioner has proved to the exclusion of fair debate that the Plan is inconsistent with the provisions of the State Plan, construed as a whole. The density designation given the western peninsula of Perico Island conflicts with various provisions of the State Plan designed to protect water, coastal and marine resources, and to promote efficient land uses compatible with land and water resources. Stormwater Provisions Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are internally inconsistent with Plan provisions concerning water quality protection and improvement. Coastal Goals 2 and 5 protect water quality. Goal 2 is to improve surface water quality. Objective 2 under Goal 2 is to reduce pollutant loads reaching waterways from urban stormwater. Goal 5 is to use coastal areas so as to preserve natural systems. The stormwater provisions are inconsistent with the above-cited provisions protecting water quality because the level of service standard contains a serious loophole. PFE Goal 4, Objective 1, Policy 2 completely undermines the drainage level of service standard by providing that its applicability to "various types and sizes of private development" shall be as set forth in land development regulations adopted by December 1, 1989. For the reasons set forth in Footnote 15 above, relegating to land development regulations substantial provisions required by law to included in a plan is ineffective for reasons involving public participation and notice, compliance review, and enforceability. In effect, the applicability of the drainage level of service standard is subject to land development regulations. The evidence is insufficient to prove to the exclusion of fair debate the inefficacy of the stormwater provisions based on stormwater projects included in the Capital Improvements Schedule. The Data and Analysis discloses that Wares Creek has suffered most extensively from untreated stormwater runoff. However, Table 4 in the Capital Improvements Element discloses that most, if not all, of the scheduled stormwater projects will affect the Wares Creek drainage basin, as defined in the map of Storm Drainage Areas on page 208 of the Plan. 16/ For the reasons set forth in the preceding paragraph, Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Capital Improvements Schedule projects necessary to achieve treatment of stormwater sufficient to meet relevant water quality standards. Petitioner has proved to the exclusion of fair debate that the Plan is inconsistent with the criterion of a policy demonstrating how the local government will coordinate with the SWIM Plan, especially as to the latter's requirement that all stormwater discharge comply with relevant water quality standards. The Plan's drainage level of service standard, which is seriously undermined in the manner set forth above, is further hampered by the failure of the standard to include post- development water quality standards. As noted in the SWIM Plan data and analysis, the water quality of stormwater runoff is a key factor in preserving the health of the Outstanding Florida Waters that surround Perico Island and in restoring the health of other nearby waters. Due to the failure of the Plan submitted into evidence to contain as an appendix the Comprehensive Stormwater Management Study, 1981, Petitioner has failed to prove to the exclusion of fair debate that the scheduled capital improvements concerning stormwater projects fail to implement the SWIM Plan. In addition, the SWIM Plan does not generally impose project deadlines for various capital improvements. Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are inconsistent with the provisions of the State Plan, construed as a whole. The failure to incorporate into the Plan an effective level of service standard for post-development runoff rate for all developments and the failure to incorporate any level of service standard for post-development runoff water quality are inconsistent with the above-cited provisions of the State Plan. Historic Provisions Petitioner has failed to prove to the exclusion of fair debate that the Historic Element is inconsistent with the criterion of supporting data and analysis; the Historic goal is internally inconsistent with the Historic objectives and policies; or the Historic provisions are inconsistent with the criteria that objectives be measurable and policies describe how programs and activities will achieve the goals. None of the Historic provisions contradicts any of the Data and Analysis concerning historic resources. The Historic objectives and policies are in no way inconsistent with the Historic goal of preservation. The Historic objectives are measurable, and the policies describe how programs and activities will achieve the goals. Miscellaneous Provisions Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of establishing a level of service standard for recreational facilities. Recreation Objective 3 and Policy 1 establish a level of service standard for recreation by acreage. Policy 2 addresses the facilities that must be constructed for each park used to satisfy the recreational level of service standard. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Schedule of Capital Improvements projects necessary to achieve a level of service D for roads. No roads for which Bradenton is fiscally responsible are predicted to attain a level of service standard more congested than D during the planning timeframe.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that Bradenton's plan is not in compliance for the reasons set forth above. ENTERED this 13th day of February, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1992.
Findings Of Fact On December 12, 1988, Petitioners filed an application with Respondent for a permit to construct improvements to real property seaward of the coastal construction control line (CCCL). Petitioners' property is located at 2400 North Atlantic Boulevard, Fort Lauderdale, Florida. The parcel of land owned by Petitioners measures approximately 50' in width and 140' in depth and is located in a primarily residential area of beachfront property with high property values. On this parcel is a residence that is approximately 1600 square feet in size. The residence is constructed on reinforced concrete pilings. There are many other residential and commercial structures in this area which are also constructed on reinforced concrete pilings. The improvements to this property seaward of the CCCL that Petitioners desire to make and that Respondent finds objectionable is the construction of a poured monolithic reinforced concrete slab patio supported by twenty-one reinforced concrete pilings. The patio would be approximately 27' by 50' in size. On November 17, 1987, Respondent approved an application filed by a previous owner of this property for the construction of a patio to be constructed with concrete pavers. Petitioners arranged to have the previously approved permit transferred to their name. The project contemplated by the subject application employs a different method of construction than the one permitted in 1987 because Petitioners desire to have a patio that is more attractive and is easier to maintain. Petitioners are also concerned that concrete pavers will be hazardous during a storm since they may be subject to being swept along by high winds and water. Petitioners have valid reasons for preferring the method of construction reflected by the subject application based on aesthetic and maintenance considerations. However, Petitioners did not establish that the proposed method of construction was necessary as a safety measure. To the contrary, the greater weight of the evidence was that blocks the size of the pavers to be used for the construction that has been permitted would not be propelled by either hydrodynamic or aerodynamic forces during a major storm as Petitioners contend. Instead, these blocks would likely be undermined during a major storm and, because of their weight, fall as the beach is eroded. Respondent has regulatory authority over the property in question. Respondent's regulatory authority, which includes rule making authority, is conferred by statute. Respondent's responsibilities include the preservation of the beach-dune area within its jurisdiction. There is a relationship between the siting of a structure, in terms of its proximity to the shoreline, and the likelihood that the structure will have an impact on the beach and dune systems. The subject patio is to be located within the beach-dune system. The patio Petitioners propose to construct on concrete pilings would have more of an adverse impact on the beach-dune system than a patio constructed of concrete pavers. During a major storm, greater erosion on the site around the pilings will occur as a result of scour. Following a major storm, the ability of a dune to re-form will be more inhibited if the patio is supported by pilings. Considering the hundreds of thousands of pilings that are already in place along the beach, the effect of the twenty-one pilings proposed by Petitioners, whether considered individually or cumulatively, will be insignificant. A patio is usually considered by Respondent to be a "minor structure". "Minor structures" are non-habitable structures that are generally designed to be expendable during a major storm event. Dune walkovers, viewing platforms, and decks are examples of minor structures. A patio constructed of concrete pavers would be another example. The nature of their construction permits minor structures to be placed more closely to the shoreline than major structures. The patio as proposed Petitioners has been properly categorized by Respondent as being a "major structure" since it is designed to withstand a major storm event. Respondent has not to date permitted any major structure as far east of the CCCL in this area of Broward County as Petitioner's proposed project. All major structures constructed on pilings that are that far east of the CCCL were built before permits were required. Respondent is concerned that the granting of the subject permit will set a precedent that will require the issuance of permits for the construction of other major structures as far seaward of the CCCL as the Petitioners' proposed project, and that such construction would result in a cumulative adverse impact on the beach-dune system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a final order which denies the subject permit. DONE AND ENTERED this 20th day of September, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact in paragraphs 1-6 and 8-10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraph 8 are rejected as being argument. The proposed findings of fact in the first sentence of paragraph 11 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 11 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in the third sentence of paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 13 are rejected as being conclusions of law that are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are rejected as being unsubstantiated by the evidence. While Petitioners' application included as a proposed condition to the issuance of the permit, a covenant running with the land that would require the property owner to reconstruct the beach-dune system in the event of destruction by a major storm, the evidence did not establish, as Petitioners proposed, that the covenant would "... protect the interests of DNR and its long term end of protecting the dunes and beaches". The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-2, 5-6, 10-16, 24-27, 30-31, and 33 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraphs 3 and 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 21 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 7-9 and 28-29 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraphs 17-20, 23, and 32 are rejected as being unnecessary to the conclusions reached. These proposed findings are incorporated in part as conclusions of law. The proposed findings of fact in paragraph 22 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made. COPIES FURNISHED: Kenneth G. Stevens 412 Northeast Fourth Street Fort Lauderdale, Florida 33301 Dana M. Wiehle, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Room 1003 Tallahassee, Florida 32399-3000 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ken Plante General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Problem: A Seawall In Danger of Collapse Applicant is an incorporated condominium association which owns the Gulf front property of Bonita Beach Club, a residential condominium located on the northern portion of a barrier island known as Little Hickory Island. The island is south of Fort Myers and part of Lee County. (Testimony of Truitt, Tackney; R-1.) Applicant's Gulf front property is protected by a 600-foot seawall; that seawall, exposed to wave and storm attack, is now in the beginning stages of failure. Applicant seeks a permit to place a revetment along the entire seaward face of the seawall "to help strengthen the seawall and stop the erosion at [its] . . . base . . . ." (R-1.) (Testimony of Truitt, Tackney, Sharma; R-1) The seawall shows evidence of profile lowering; sand has been scoured from its face, exposing 6 to 7 feet of wall above the sand line. Its face shows abrasions from buffeting by sand and sediment; its joints have begun to separate, allowing sand from behind the wall to leak through the cracks. Under high tide conditions, the seaward portions of the seawall are under water; under other tidal conditions there is no more than 6 to 7 feet of wetsand area between the base of the wall and the waterline. (Testimony of Truitt.) The present condition of the seawall is mainly due to two processes: the long-term shoreline migration of Little Hickory Island, and (2) profile steepening, scouring, and accelerated sand loss in the immediate vicinity of Applicant's seawall. There is a south-to-north longshore or littoral sand transport in the area off Little Hickory Island, a northward flowing "river of sand." This phenomenon has caused sand loss to beaches in front of and south of Applicant's property and sand accretion to the undeveloped northern beaches north of the island. The localized profile steepening and accelerating sand loss at Applicant's seawall is caused by waves hitting the vertical seawall, then rebounding-- causing removal of sand at the foot of the wall and steepening of the offshore profile. This localized sand loss and erosion has been aggravated by the original placement and alignment of Applicant's seawall. 7/ The seawall protrudes further seaward than adjacent seawalls or bulkheads. 8/ This protrusion, together with the wall's irregular shape, disrupts the otherwise straight shoreline and acts as a headland: an abutment which concentrates wave energy and longshore currents and causes accelerated erosion and sand loss in the immediate area. The effects of the northerly longshore drift and the localized sand loss have been dramatic: between 1974 and 1980 the sandy beach in front of Applicant's seawall has receded landward 50-60 feet. (Testimony of Truitt, Tackney, Sharma; P-1, P-2, P-3, P-4, 1-2, R-3, R-4, R-5, R-6, R-7.) In addition, the shoreline of Little Hickory Island is gradually and inexorably eroding. This is due to long-term backyard erosion, a natural )process by which barrier islands gradually migrate landward. (Testimony of Sharma, Tackney, Truitt.) II. Applicant's Solution: Place a Rock Revetment in Front of the Seawall In October, 1980, Applicant applied for a DNR permit to place a rock revetment along the existing seawall. By January, 1981, DNR's Bureau of Beaches and Shores determined that all of the documentation required by its rules 9/ had been submitted and the application was complete. Subsequently, the Applicant agreed to several design changes suggested by DNR and agreed to a permit condition requiring it to dedicate a travel easement to assure continued public access to beaches north of its property. As so modified, DNR proposes to issue the requested permit. (Testimony of Truitt; R-1, -R-11, R-12.) The proposed permit, with conditions, is contained in Respondent's Exhibits R-1, R-11, and R-12. 10/ The proposed shore protection structure is described as a rock toe-scour revetment to be placed along the seaward face of Applicant's existing seawall. The revetment extends 7 feet in the shore-normal direction and approximately 600 linear feet in the shore-parallel direction. It will consist of lime-rock boulders of various sizes stacked on top of each other. The top layer of rocks will be the largest, 75 percent of them weighing greater than 500 pounds. The rock revetment will rest on a layer of Filter-X mat to help stabilize the underlying sand. The revetment's elevation will range from 0.0 feet (NGVD) 11/ at the toe of the seawall to -0.5 feet (NGVD) at 7 feet seaward. Its slope will be no greater than 3 horizontal units to 1 vertical unit. The mean high waterline will intercept the revetment-seawall interface at a maximum elevation of approximately +1.5 feet (NGVD). (R-1, R-11, R-12.) III. The Effects of the Proposed Revetment The proposed revetment will fulfill its primary purpose: it will protect the Applicant's seawall by reducing the amount of sand that is scoured and removed from its face and it will add significant structural stability to the wall. It will provide these benefits because its sloping surface will intercept and dissipate waves which would otherwise hit and rebound off the vertical seawall. Because wave deflection energy will be lessened, steepening of the offshore profile will be reduced and accelerating longshore currents will be slowed. It will also protect the seawall against storm, but not hurricane, damage. (Testimony of Truitt, Tackney.) However, the proposed rock revetment will not stop the migration of sands from the southern to the northern reaches of Little Hickory Island; the northward flowing longshore currents will continue. Neither will the revetment protect Applicant's property against long-term background erosion; the entire island will continue its steady easterly retreat to the mainland. Scouring at the ends of the existing seawall will be reduced, but not eliminated. Eddy currents at the ends of the revetment will cause some localized scouring to take place. Wave and water action will take its toll on the revetment; it will require periodic repair and rebuilding in the years ahead. (Testimony of Sharma, Tackney, Truitt.) Although the testimony is conflicting, the weight of the evidence is that the proposed revetment will not adversely affect adjacent beaches and the offshore profile. 12/ While localized scouring will not be eliminated, the evidence indicates that the rates will be lessened--that the existing erosion problems will be mitigated, not aggravated. With reduced localized scouring, longshore currents will not accelerate, and the offshore profile will not deepen at increasing rates. The expert witnesses agreed that, at least for the short term, the proposed revetment will protect the existing seawall against at least three-year storm conditions. (Testimony of Tackney, Truitt, Sharma.) While the revetment will not accelerate or contribute to the erosion of adjacent lands, it will impair the public's use of the beaches in front of and to the north of the Applicant's seawall. Because the revetment will protrude 6 to 7 feet seaward from the seawall--intercepting the mean high waterline--the public will be precluded from traversing the beaches in front of Applicant's property. That narrow corridor of wet-sand beach now permits dry passage only during low tide. With placement of the rock revetment on that passageway, it will become impassable to most people who use the Little Hickory Island beaches. 13/ (Testimony of Sharma, Member of the Public.) Generally, rip-rap revetments, such as that proposed by Applicant, do not eliminate erosion or cause sand to accrete. Rather, they tend to increase erosion and escarping beyond that which would occur if a shoreline is left in its natural, unaltered condition. (Testimony of Sharma, Truitt, Tackney.) IV. DNR Coastal Construction Permits: Practice and Policy There may be alternatives to the proposed revetment which will not endanger the Applicant's upland structure or block the public's access to beaches in front of and north of Applicant's property. 14/ DNR does not require the consideration of shore protection alternatives when it processes coastal construction permit applications. Neither, in its view, is public access to adjacent beaches a matter of regulatory concern in this licensing process. 15/ At the staff level of DNR, the sole consideration is engineering design of the proposed structure: At the level of staff of the Bureau of Beaches and Shores there are no other con- siderations other than simply engineering judgments on the appropriateness or other considerations of the design. I have no idea what the governor and cabinet or exec- utive director may consider. (Tr. 170.) This view of the agency's duty helps explain why DNR has never denied an application to construct a shore protection revetment, although it has suggested design modifications, as was done in this case. (Testimony of Truitt.) V. Interests of Objectors to Proposed Revetment Project DNR requires applicants for coastal construction permits to provide a map showing the location of the proposed erosion control structure and the shoreline for at least 1,000 feet on each side. Applicants are also required to provide a list of the names and addresses from the latest county tax role of all riparian property owners within 1,000 feet. It is DNR practice, in accordance with its rule, Section 165-24.07, Florida Administrative Code, to mail notice of a proposed project to those riparian property owners. By rule, such interested persons or objectors to a proposed project have the right to appear and make their positions known to the Governor and Cabinet at the time the agency decision is made. Id. (Testimony of Truitt; R-1.) Petitioners, Casa Bonita I and II Condominium Associations, Inc., and Seascape Condominium I and II Associations, Inc., assert that the proposed revetment will adversely affect their rights as riparian owners, that it will cause erosion of their shorelines; they also allege that it will prejudice their recreational use of sovereignty lands--the public's beaches lying below the line of mean high water. Relative to the site of the proposed revetment, Casa Bonita I Condominium Association, Inc., lies 1,350 to 1,400 feet south; Casa Bonita II Condominium Association, Inc., 670 feet south; Seascape Condominium I and II Associations, Inc., lie immediately adjacent to the site. (Testimony of Tackney; R-1, R-14.) No evidence was presented to establish that intervenor Lee County is a riparian property owner within 1,000 feet of the proposed revetment. The Lee County Board of County Commissioners were, however, notified of the instant application and given an opportunity to object. The parties have submitted proposed findings of fact; to the extent such findings are incorporated in this Recommended order, they are adopted; otherwise they are rejected as irrelevant to the issues presented or unsupported by the preponderance of evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of Bonita Beach Club Condominium Association, Inc., for a coastal construction permit be GRANTED, subject to the agreed-upon conditions described above, including the dedication of a travel easement allowing the public to circumvent the 600-foot rock revetment. 21/ DONE AND RECOMMENDED this 16th day of October, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1981.
