The Issue Whether the application submitted on behalf of the City of Miami Beach, Florida (City) for a coastal construction control line (CCCL) permit should be approved.
Findings Of Fact The Petitioner, Wallace Corporation, owns and operates the Richmond Hotel located at 1757 Collins Avenue, Miami Beach, Florida. The Richmond Hotel (the Richmond) was built in 1941 by Allan Herbert's grandfather. It has been continuously controlled by Mr. Herbert's family since that time. The Richmond prides itself on its appeal to upscale international travelers. It seeks to offer unique accommodations, service, and privacy. The Richmond was recently renovated and restored at a cost of several million dollars. The guest rooms, roof, plumbing, and electrical systems were upgraded while the original Art Deco decor was preserved. Included in the renovations were improvements to the pool area, landscaping, and a dune walk-over. These renovations sought to appeal to a "boutique" clientele seeking a peaceful and tranquil housing accommodation while enjoying the Miami Beach locale. The Respondent, City of Miami Beach, is the applicant for the instant CCCL permit. Coastal Systems was retained by the City to file and procure the subject permit which is identified in this record as CCCL permit no. DA-361. The CCCL permit application was filed with the Department on June 19, 1997. Since that time it has been modified to address Department concerns. The Department of Environmental Protection is the state agency charged with the responsibility of reviewing applications for CCCL permits. In its review of the instant permit, the Department deemed the application complete on February 5, 1998. Thereafter, the Department's Bureau of Beaches and Coastal Systems entered a proposed order to approve CCCL permit no. DA-361. If approved, this permit will allow the construction and improvements sought by the City. The project proposed by the City will allow for the construction of a beachwalk that would extend from Lummus Park at 14th Lane to an existing boardwalk at 21st Street. This beachwalk, along with its attendant improvements, will allow the public to access the beach at several controlled points along the dune system. Additionally, it will allow pedestrian traffic to move efficiently length-wise along the dune system. The project concept is to limit the number of points across the dune system that the pedestrian public uses for access to the beach. Further, the beachwalk will offer the public an efficient means of traveling north to south or vice versa without reverting out to Collins Avenue. Shifting pedestrian traffic away from Collins Avenue should improve traffic conditions in this highly urbanized area. The design of the beachwalk minimizes impacts to the beach dune system and prevents erosion by keeping pedestrians on the walk and off the dune. The design will act as an erosion preventative measure and should assure minimal adverse impacts to the dune and beach system. In this regard, it is critical to note that the dune and beach system in this area of Miami Beach are the product of beach renourishment. The beach itself was created in the late 1970s and 1980s by the U.S. Army Corps of Engineers. In order to address the severe erosion that threatened properties along Miami Beach, the Corps stepped in and deposited millions of cubic yards of sand on the beach. The beach renourishment project expanded the beach from government cut to 32nd Street. It was designed to provide storm protection for upland owners by widening the non-existent beach and by creating a dune system. The dune was established immediately seaward of the erosion control line (ECL). This ECL had formerly been the mean high water mark for the beach prior to the massive undertaking to deposit sand along the coast. The newly created dune served as a dike to reduce the impacts which would be expected from a 100-year storm event. In theory, water generated in such a storm event would be blocked from coming onshore thereby minimizing damage from wave or surf action upland of the ECL. To enhance the dune's efficiency in this regard, a vegetation program was implemented to address wind and pedestrian erosion to the dune system. This vegetation program will be expanded as explained below if the instant permit is approved. Currently the dune system is marred by cross-over channels cut by pedestrian traffic through the dune. These pathways provide convenient access to the beach but do so at a cost to the dune's efficiency and security. Because they cut through the dune in an easterly direction, they allow wind and, potentially water in a storm event, to gouge the dune. The cuts in the dune undermine the efficiency of the erosion control. By installing the beachwalk proposed by the City, the number of cuts across the dune will be minimized. Moreover, they will be designed to trap sand and to promote erosion control. The areas which have already been gouged will be re- vegetated to deter pedestrian use. The native vegetation planned for this work should promote erosion control and enhance the dune system. The types of vegetation and manner of planting should also deter future unauthorized pedestrian access through the dune. Subsequent to the beach renourishment program, the beach, along the entire project length, has experienced a natural accretion. This means that natural erosion is not occurring. Natural erosion results from wind, tidal, or other naturally occurring influences. In contrast, however, are the man-made erosion sources: pedestrian paths, cuts in the dunes which endanger the dune and limit its effectiveness. The danger from these unregulated cuts could potentially undermine the dune and accelerate erosion from natural events. Dune cross-walks such as proposed by the instant project (and as maintained by the Petitioner) are required for the prevention of erosion. Thus the project in its entirety will prevent erosion. The proposed project will not adversely impact the beach-dune system. Petitioner presented no evidence to establish a significant impact. The project creates a net improvement of sand and vegetation to the dune and will restore all dune cuts. The beachwalk is proposed to follow the shore, parallel to the beach. It is to be constructed of paver blocks and is to accommodate controlled movement of pedestrian traffic and bicyclists. While it could accommodate emergency vehicle traffic such as police or medical rescue, it is not designed for such use on a routine basis. The beachwalk will improve public access at 17th and 18th Streets. These access points will give the public better availability of parking and public accommodations. All of the street end dune cross-overs are designed to trap sand and to minimize erosion to the dune. The proposed access points significantly improve the west to east access to the beach. As currently designed, the beachwalk will not cause wind borne or water borne projectiles during a storm event. Moreover, the paver block walk is located landward of the dune in most instances. Even this walk has been designed to break apart and result in no increased erosion during a storm event. The beachwalk will be constructed of paver blocks installed on a crushed shell or rock base. This base should give the path stability under normal use yet give way in a significant storm event. In some areas the height of the dune will be increased by the placement of additional sand fill. Foundations for improvements proposed along the beachwalk are also designed to give way in a storm event. Thus, planters or low walls should easily collapse if undermined in a storm event. All of the improvements seaward of the ECL are minor structures. Most of the project will be located on state lands. In the instances where the project crosses or touches private property the City recognizes it must secure easements or other appropriate access to construct and maintain improvements. It is unlikely that the improvements will cause scour. It is also unlikely that the project will accentuate or contribute to storm surge. As currently proposed, the beachwalk project will have no adverse impact on the dune system. Moreover, the project will create an improvement to the system by adding sand, stabilizing and improving vegetation on the dune, controlling pedestrian access to the beach, and trapping sand. Prior to 1980 there was no documented turtle nesting on the project area of Miami Beach. Since that time, and the creation of the beach from renourishment, there has been a marked increase in turtle nesting in the area. While such nesting is encouraged by the Department, due to the urbanized nature of the area and the intense pedestrian and public use of the beach, all turtle nests located along this beach are relocated to hatcheries. This relocation policy and practice for the area existed before the proposed project was submitted for approval. The relocation program is managed by Miami-Dade County under a permit issued by the Department. Pursuant to the permit, the County conducts nesting surveys, operates self-release and restraining hatcheries, documents false crawls, and rescues turtles for relocation. None of the foregoing activities will change if the instant permit is approved. Given the width of the beach in the subject area of the proposed beachwalk, the limitations on the lighting proposed for the path, and the current restraints employed to deter the public from interfering with turtle nesting, it is unlikely turtle nesting in the subject area will change. If anything, there is a possibility that nesting may increase. For reasons unknown to the experts, turtle nesting on Miami Beach is greater in the better lit areas of South Beach. More turtles have nested along the better lit area, have had more false crawls, and have resulted in more nest re-locations from the highly commercial area of South Beach than in the darker, more traditional beach of the subject area. As turtles and hatchlings become disoriented by lights, this documented phenomenon seems contrary to the typical turtle scenario which would have the nesting turtle approach a dark, quiet beach, nest within a limited distance of the rack line (the line of seaweed deposited by tide along the beach), and return to the ocean. At the area of the Richmond, turtle nests are typically found within 50 feet of the rack line. Turtles nest within a limited distance of this line, rarely more than 100 feet. Since the beach is several hundred feet wide along the project length, it is unlikely nesting turtles will be deterred by the construction of the path. Additionally, it is unlikely the lights proposed for the beachwalk will adversely impact turtles. The number, placement, and limitations proposed on the lights will adequately minimize lighting impacts expected from this project. Given the need for some lighting to address security and safety issues for the public using the beachwalk, given the relocation of all turtle nests on the subject beach, given the project distances and design considerations to be employed for the path, and given the lack of substantial evidence to the contrary, it is found that the proposed project does not constitute a "take" of marine turtles in the project area. Miami Beach is a very well lit, commercial area. The pockets of dark beach are only dimly lit in comparison to the more pronounced lights from night clubs or other entertainment areas. The lighting plan proposed by the City adequately addresses the potential for impacts to turtles such that the project should not have a significant adverse impact. To further limit impacts, however, construction of the project should not occur during nesting season. The proposed beachwalk with its attendant improvements does not cross in front of the Richmond. The project stops immediately to the south of Petitioner's property. The project picks back up immediately to the north of Petitioner's property. The original design of the project was modified in this fashion because Petitioner opposes the construction of the path and its attendant improvements. Because Petitioner opposes the project, no portion of the beachwalk will impede Petitioner's riparian rights to the beach/ocean. None of the proposed improvements will be constructed seaward of the ECL along Petitioner's property. All owners of property upon whose land the beachwalk will be constructed, have or will be required to give written consent to the project. Any public entity upon whose land the beachwalk will be constructed, has or will be required to give written consent to the project. Petitioner expects the beachwalk to damage business at the Richmond. Mr. Herbert believes the damage should be comparable to the events such as the cold winter of 1958, World War II, and, more recently, the murder of foreign visitors. While it is certain the beachwalk has the potential for increasing pedestrian traffic along the beach in front of the Richmond, any damage suggested by Petitioner is too remote or speculative to be of significant consideration. The construction of the proposed beachwalk will have no adverse impact on the physical condition of Petitioner's property. The proposed project will not create a significant adverse impact to the property of others. Petitioner was not required to establish its dune cross-over was required for erosion control. All dune cross- overs allowed by the Department previous to the instant request were not required to establish that they were required for erosion prevention. All of the existing and proposed cross-overs are seaward of the ECL. No upland riparian rights will not be adversely affected by the project. Petitioner's rights as an adjacent property owner to the project will not be adversely affected by the beachwalk. Petitioner will not be adversely affected from storm impacts as a result of this project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order approving CCCL permit no. DA-361 with the conditions as set forth in the proposed agency action order and with additional assurances that construction of the project will not occur during turtle nesting season, and that all property owners over whose land the project will meander provide written approval of, and authorization for, the proposed improvements to their properties. DONE AND ENTERED this 8th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. Parrish 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 8th day of June, 1999. COPIES FURNISHED: Neil Chonin, Esquire Chonin, Sher & Navarrete, P.A. 95 Merrick Way, Suite 100 Coral Gables, Florida 33134 Joseph C. Segor, Esquire 12815 Southwest 112th Court Miami, Florida 33176-4431 Ricardo Muratti Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Earl G. Gallop, Esquire Nagin, Gallop, Figueredo, P.A. 3225 Aviation Avenue, Suite 301 Miami, Florida 33133-4741 Raul J. Aguila, Assistant City Attorney Office of the City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA10-GM-115 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished as indicated to each of the persons listed below on this DW say of , 2010. aula Ford Agency Clerk By U.S. Mail Amy Taylor Petrick, Assistant County Attorney Palm Beach County 300 North Dixie Highway, Suite 359 West Palm Beach, FL 33401 Tel.: (561) 355-2529 Fax.: (561) 255-4324 Email: apetrick@co.palm-beach.fl.us William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A. 215 S. Monroe Street, Suite 618 Tallahassee, FL 32301 Phone: (850) 521-1980 Facsimile: (850) 576-0902 Email: whyde@gunster.com James M. Crowley, Esquire Gunster, Yoakley & Stewart, P.A. 450 E. Las Olas Blvd., Suite 1400 Fort Lauderdale, FL 33301 Phone: (954) 713-6416 Facsimile: (954) 523-1722 Email: jcrowley@gunster.com FINAL ORDER NO. DCA10-GM-115 Claudia McKenna, City Attorney City of West Palm Beach 401 Clematis Street West Palm Beach, FL 33401 Phone: (561) 882-1350 Facsimile: (561) 822-1373 Email: cmckenna@wpb.org Keith W. Davis, Esquire Trela White, Esquire Attorney for Village of Royal Palm Beach Corbett & White, P.A. 1111 Hypoluxo Road, Suite 207 Lantana, FL 33462 Phone: (561) 586-7116 Facsimile: (561) 586-9611 Email: keith@corbettandwhite.com; trela@corbettandwhite.com By Hand Delivery Richard E. Shine Assistant General Counsel Department of Community Affairs By Interoffice Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675
Findings Of Fact James R. Gray owns Lots 10, 11, 12 and 13, Clearwater Beach Park, as recorded in Plat Book 10, p. 42, of the official Records of Pinellas County. These lots are located on Clearwater Beach in an area zoned CTF-28. For the past several years beach chairs, umbrellas and cabanas have been rented for use in the vicinity of these lots and a portable 4' x 8' building standing on these lots has been used to store the chairs, umbrellas and cabanas when not rented. Gray proposes to replace the 4' x 8' building with an 8' x 10' portable aluminum shed from which to operate the business of renting beach equipment and expand it to include the sale of suntan lotion, soft drinks, and related items. The business will be operated by Roy Pearl, a co-applicant with Gray in these proceedings. Gray and Pearl applied for a building permit to erect the portable shed and their application was rejected by the City of Clearwater Building Department on the basis that the proposed use of the property was not in conformity with the Building and Zoning Regulations and did not fit the special exceptions provided by Section 131.099 of the Zoning Regulations. The latter determination was made by the Clearwater Planning Department. Gray then submitted on a City of Clearwater form an Application-- Request for Special Exception to the Clearwater Board of Adjustment and Appeal on Zoning, which, as noted above, approved the application. The area in question comprises a private beach; and businesses in the vicinity consist of motels, hotels, apartments and restaurants. An 8-unit motel occupies part of the site involved. The location of the proposed portable aluminum shed is on Lots 12 and 13, approximately 150 feet seaward of the seawall which separates the beach from the business establishment seaward of Gulf View Boulevard. Approximately 150 feet south of this proposed location is a similar storage shed operated in conjunction with a sailboat rental business. Some of the hotels and motels on Clearwater Beach rent umbrellas, chairs and cabanas, some of which are stored when not in use in storage sheds located more than 100 feet from the main building. On the public beach the City of Clearwater operates a concession which provides the same services proposed by applicant. The chairs, umbrellas, and cabanas are utilized by guests of the motels and apartments located in the vicinity and by tourists who are using this area of the beach for sunbathing or swimming.
Findings Of Fact The Guana River Marsh Aquatic Preserve (the Preserve) is state-owned property. Title is held by the Board of Trustees of the Internal Improvement Trust Fund. It includes some 13 miles of Atlantic Ocean beach within St. Johns County. Within the boundaries of the Preserve is included the Guana River State Park (the Park). It, too, is state-owned. It is managed and operated by the Division of Recreation and Parks (the DRP) of the Department of Environmental Protection (the DEP). Some of the Preserve's Atlantic Ocean beaches are included within the boundaries of the Park. The "wet sand," or "hard sand," area of the Atlantic Ocean beaches in the Preserve is the area of the beach between mean high water and mean low water. The mean high water line is essentially the landward extent of the ocean at mean high tide; the mean low water line is essentially the landward extent of the ocean at mean low tide. When the tide is low, this entire area of the beach is exposed. It remains wet and, generally, relatively hard-packed during the time it is exposed. However, there are beds of "red shell" in this part of the beach that are softer. In the summer, this part of the beach averages approximately 50 feet in width. In the winter, when the waves and tides generally are higher, it is narrower. In the Preserve, the mean high water line usually is indicated both by debris washed up during the highest tides and left on the beach and by a "shelf." This "shelf," made by the erosive action of the ocean waves during the highest tides and during storms, rises at an angle of approximately 45 degrees and can be from one to four or five feet high. Landward of this shelf is the "dry sand" or "soft sand" beach, also sometimes referred to as the "upper beach." It extends landward from the mean high water line to the vegetation line, where the dunes start. Usually, some pioneer vegetation is found in the uppermost reaches of this part of the beach, forming what is called the "foredune" area of the beach. The tides along the Atlantic Ocean beaches in the Preserve are semi- diurnal, i.e., there usually are two high tides and two low tides a day. These high and low tides last approximately one hour, and each day they occur approximately an hour later than they did the day before. There are five beach access points with motor vehicle parking areas located along U.S. Highway A1A within the Preserve. Three are within the Park. There is parking for approximately 120, 68, 79, 42 and 25 vehicles in these five parking areas. There also is a current proposal for the addition of three more access points in the Park, with parking for a total of 340 vehicles, five beach bathhouses, and five pedestrian overpasses. There are many other places where pedestrians can walk from A1A to the beaches, including 30 County-controlled access points. But there are no lawful parking areas adjacent to any of these other access points at this time, and parking on the right-of-way of A1A is prohibited. Currently, the only lawful motor vehicle access to the Atlantic Ocean beaches in the Preserve is to the south of the Preserve. Prior to the agency action challenged in these proceedings, motor vehicles lawfully could be driven onto the beach at this access point and be driven north into the Preserve, so long as they remained below the mean high water line. A former access near the north end of the Preserve has been cordoned off. To leave the Preserve, motor vehicles would have to be turned around and driven back south to the same motor vehicle access point. Due to the restricted access to the Atlantic Ocean beaches in the Preserve, not much use is made of those beaches. In comparison, beaches to the south are used much more heavily. Of the relatively few who use the motor vehicle access to the south and drive on the beach north through the Preserve, some ultimately use the beaches to picnic, swim, surf, beach-comb and similar activities; some probably just drive on the beach. There was no evidence quantifying the uses currently being made of the beaches in the Preserve. In the past, homemade motor vehicles called "skeeters" were built with a light-weight chassis and over-sized wheels. They were used for driving on both the hard and soft areas of the beaches, as well as illegally in the dunes. This practice has been curtailed due to better enforcement of the prohibitions against driving in the dunes, a generally heightened environmental consciousness among the public, and prohibitions against driving the "skeeters" on public highways. Generally, there has been less driving on the beaches of the Preserve in recent years, although the practice persists at a reduced level. At all times of the year, it sometimes is impossible to drive along the entire length of the beaches in the Preserve without driving on the soft sand area. This is especially true during the winter months when the waves and tides are higher and storms are more frequent. But even in the summer months, there are times when "red shell beds" in the "wet sand" part of the beach must be circumvented to avoid getting stuck. Especially when the tide is not at its lowest, the only way to avoid some of these "red shell" beds is to drive over the "shelf" and onto the "soft sand." Depending on the tides, this may also be necessary in order to turn a vehicle around on the beach. In many places, the "soft sand" area is not very wide, and it would be necessary under those circumstances to drive in the "foredune" area. The times of the daily high and low tides can be obtained relatively easily by members of the public. But there is no assurance that all persons who would drive on the beaches would know the times of the tides. Nor is there any assurance that persons who drive the "wet sand" or "hard sand" part of the beaches at low tide also would plan to both start their beach drive and their return trip during low enough tides to be able to avoid driving on the "soft sand" part of the beach. For these and other reasons, it would be difficult, if not practically impossible, to effectively monitor beach driving throughout the Preserve and consistently enforce a restriction to driving only on the "wet sand" or "hard sand" areas of the beach. In the summer months, sea turtles lay eggs in nests dug in the sand of the foredune and dune areas of the Atlantic Ocean beaches in the Preserve. After a period of incubation in the nests, the turtle hatchlings dig themselves out of the nests and crawl to the ocean to begin their lives in the sea. Driving motor vehicles over nests on those parts of the beaches in the summer months could crush eggs in their nests or pack the sand hard enough to reduce the number of hatchlings that emerge from the nest alive. In addition, driving motor vehicles in these area, even in other parts of the year, can leave ruts in the beach that disorient hatchlings that leave the nests in summer so that fewer reach the ocean alive. Sea turtles crawl out of the ocean to their nest sites at night. Artificial lighting can disturb their nesting and egg-laying activities. However, it seems that moving lights, or lights that turn on and off (in the manner of car lights), create more of a disturbance than stationary lights, such as those more often found at residences along the beaches in the Preserve. The Management Plan does not prohibit artificial lighting along the beaches in the Preserve, but it recommends that further attention be given to this problem and that ways to address the problem be explored and pursued in cooperation with the County. Various shore birds, including the threatened least tern, make their nests in the foredune area of the beaches in the Preserve. Driving on the foredunes destroys and disturbs nesting habitat and disturbs the nesting activities of these birds. In addition, both these ground nesting shore birds and a variety of migratory birds make use of different areas of the beaches to rest and feed. Driving on the beaches disturbs these activities, as well. The only known nesting colony of least terns in St. Johns County is located in the Park, where beach driving is prohibited. The Division of Parks and Recreation (DPR) of the Department of Environmental Protection (DEP) has utilized F.A.C. Rule 16D-2.002(4)-(5) to prohibit driving or parking motor vehicles on the beaches of the Park by not designating the beaches as driving or parking areas within the Park. At least parts of the beaches in the Park have been posted as areas where driving motor vehicles is prohibited. In order to develop a management plan for the Preserve, the manager of the Preserve personally researched the geology, climate and natural resources of the Preserve, as well as the records of the County, and also collected data pertaining to the Preserve from several state agencies. Over the course of a year, the manager's input was taken into consideration, and a management plan, called the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), was developed for the Preserve. It was adopted by the Board of Trustees of the Internal Improvement Trust Fund on December 17, 1991. The Management Plan recites in pertinent part: At the present time, motorized vehicular traffic is permitted, by county ordinance, below the natural vegetation line on the beaches adjacent to the Atlantic Ocean in St. Johns County. Vehicles are not allowed on the 4.2 miles of beach within Guana River State Park. The coarse coquina sand and steep profiles of the beaches in the preserve make driving on the wet sand area difficult. Drivers are forced to cross the dry sand area, damaging the foredunes, pioneer dune vegetation and sea turtle nesting habitat. Due to the negative environmental impacts resulting from this activity, motorized vehicular traffic shall not be considered an authorized activity on sovereign submerged lands within [Prime Resource Protection Area] PRPA beach management areas of the preserve, and therefore will be prohibited. Under the Management Plan, all of the Atlantic Ocean beaches in the Preserve are Prime Resource Protection Area, and the driving of motorized vehicles on them is prohibited. On June 11, 1993, the DEP's DRP sent St. Johns County a letter advising that, based on the Management Plan, DEP no longer would permit the driving of motor vehicles on the Atlantic Ocean beaches in the Preserve. The proposed amendment to F.A.C. Rule 18-20.004(7), incorporating the Management Plan, was noticed in the Florida Administrative Weekly on August 6, 1993. On or about August 18, 1993, the DEP agreed not to enforce the beach driving prohibition in the Preserve until these cases are resolved.
The Issue The issues to be determined is whether the City of Destin (“City”) has demonstrated its entitlement to place dredged material from the maintenance dredging of the East Pass (“East Pass” or “inlet”) entrance channel conducted pursuant to the Consolidated Joint Coastal Permit and Sovereign Submerged Lands Authorization, Permit Number: 0288799-003-JC (“Permit”), in the swash zone east of East Pass in accordance with the Notice to Proceed (“NTP”); and whether the Inlet Management Plan referenced in the NTP is an unadopted rule as described in section 120.57(1)(e), Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Petitioners, David H. Sherry and Rebecca R. Sherry, own Unit 511 at the Surf Dweller Condominium, 554 Coral Court, Fort Walton Beach, Florida. The Surf Dweller Condominium, which is on Santa Rosa Island in the unincorporated community of Okaloosa Island,1/ fronts the Gulf of Mexico, and straddles DEP Reference Monument R-7, which is between three and four miles west of DEP Virtual Monument V-611, and is between five and six miles west of the west side of East Pass. The Sherrys use the beach at their condominium on a daily basis for fishing, crabbing, swimming, walking, running, and general recreation. They also walk or run from Monument R-7 along the beaches to East Pass, and occasionally drive to and use the beaches on the east side of East Pass. Petitioner, John S. Donovan, owns Units 131 and 132 at the El Matador Condominium, 909 Santa Rosa Boulevard, Fort Walton Beach, Florida. The El Matador Condominium is on Okaloosa Island, fronts the Gulf of Mexico, and is approximately five miles west of Monument V-611, and is more than six miles west of the west side of East Pass. Mr. Donovan generally walks the beaches west of his condominium, but does occasionally walk along the beach to Monument V-607, which is the location of a seawall constructed by the Air Force on sovereign submerged lands to protect an Air Force tracking facility. Intervenor, Thomas Wilson, resides at 856 Edgewood Drive, Charleston, West Virginia, and owns a secondary residence at 1530 Miracle Strip Parkway, No. 101-B, Fort Walton Beach, Florida, in the vicinity of Monument R-14. Mr. Wilson uses and enjoys the gulf-front beaches between his property on Okaloosa Island and East Pass. Petitioners’ stated injuries are related to the allegation that the lateral movement of sand from the East Pass areas of influence is from east to west. Placing dredged material in the eastern disposal site would allegedly deprive the beaches in front of their property -- beaches that are miles from the nearest area of influence or spoil disposal site -- of their natural sand supply by cutting off what they allege to be the natural sand flow, causing the beaches in front of their properties to eventually erode. Petitioners alleged no immediate environmental injuries associated with the NTP. Petitioners’ stated objective in this case is to have any sand dredged from East Past to be placed on the western disposal areas at all times. The City is the applicant for the Permit and the NTP, and abuts the east side of East Pass. DEP is an agency of the State of Florida pursuant to section 20.255, Florida Statutes. DEP is the permitting authority in this proceeding and issued the NTP at issue in this proceeding to the City. The NTP was issued on February 2, 2018, without notice of rights language regarding the right to request a hearing or time limits for doing so. Petitioners received a copy of the NTP on October 1, 2018, and filed a challenge more than 14 days later, on November 30, 2018. East Pass Prior to 1928, the connection from Choctawhatchee Bay to the Gulf of Mexico flowed through what is now Old Pass Lagoon. After a storm in 1928, a high-tide breach of the shoreline near the current location of East Pass was formed. In 1929, a record rain event caused waters to rise in Choctawhatchee Bay. Residents of the area dug a relief channel at roughly the present location of East Pass. The waters releasing through the more hydraulically efficient flow path from Choctawhatchee Bay established a channel, which quickly enlarged to become the prominent inlet to the Gulf of Mexico. The permanent channel, now known as East Pass, is the only navigable passage from Choctawhatchee Bay and the Intercoastal Waterway to the Gulf of Mexico between Panama City, Florida, and Pensacola, Florida. East Pass separates the gulf-fronting beaches of the City to its east from the beaches owned by the United States as part of Eglin Air Force Base to the west. The entrance to East Pass is protected by two boulder-mount jetties: a 3,860 foot- long jetty on the west side of the inlet and a 1,210 foot-long jetty on the east side of the inlet. East Pass is an ebb tide dominated inlet, with a sizable amount of sediment moving in and out. When outgoing tidal flow moves though the constriction formed by the jetties, flow velocities are accelerated. When the water, and any entrained sediment, passes the jetties, flow tends to spread out to the east, west, and south, and naturally loses velocity. When the outgoing tidal waters reach a critical velocity where they can no longer carry the sand, the sand drops out of suspension, which forms the ebb shoal. Essentially, the ebb shoal is a large, semi-circular sandbar extending from the mouth of East Pass that was created by the ebb tide carrying sediments south. East Pass is a highly dynamic inlet system. There are processes spurred by the configuration and location of East Pass, tides, waves, and storms that have resulted in currents running to the east and west that change on a frequent basis. The Physical Monitoring Plan (“PMP”), which is part of the Permit, and thus, not subject to challenge in this case, established, for the period of 1996 through 2007, “a trend of west to east longshore transport, resulting in net gain immediately west of [East Pass] and a significant loss of sand along Holiday Isle east of [East Pass].” The PMP further established that a “drift nodal point” existed at East Pass. Longshore transport at uniform coastal locations is generally in one direction. However, when there are wave events coming from varying angles, and where beach contours are not parallel and uniform, or even linear, it is common for transport reversals to occur. The point at which those reversals occur is referred to as a nodal point. That point can be where east and west transport converges, or where it diverges. The shoreline in the vicinity of East Pass has exhibited “quite a few” nodal points over the past decade, resulting in frequent drift reversals and sand transport to the east and the west. The evidence as to the existence and effect of the East Pass drift nodal point, and its affect on the lateral transport of sand in the area, including the East Pass areas of influence, was substantiated by testimony and other evidence introduced at the final hearing. The testimony and evidence that there is no consistent direction of lateral sand transport in the vicinity of East Pass, and no predominant lateral current transporting sand in a westerly direction, is accepted. Evidence to the contrary was not persuasive. East Pass includes a federal navigation channel. The federal navigation channel requires routine maintenance to prevent it from shoaling. On an average, East Pass is dredged in two-year intervals. The last time that East Pass was dredged was in December of 2013. It has now shoaled with sand and become very hazardous for marine traffic. In December of 2018, the City declared a state of emergency relating to the navigational hazards caused by the accumulation of sand in the navigation channel. The Permit On February 26, 2015, DEP issued the Permit, which authorized the City to perform “periodic maintenance dredging of the federally authorized East Pass and Destin Harbor and navigation channels.” The Permit will expire on February 26, 2030. Notice of the issuance of this Permit was published in the Destin Log, a newspaper of general circulation, on December 24, 2014. No challenge to the issuance of the Permit was filed. As it pertains to the issues in this proceeding, the Permit provides that “Dredged material from . . . maintenance dredging activities will be placed in the swash zones of the beaches east and west of East Pass, as specified in the East Pass Inlet Management Plan.” The specific beach spoil placement sites are, as relevant to this proceeding, located “west of East Pass . . . between [DEP] reference monuments V-611 and V-622; and on 2 beach sites situated east of East Pass . . . from R-17 to R-20.5 and from R-23.5 to R-25.5.” Those areas correspond to what have been identified as the “areas of influence,” which are the beach areas east and west of East Pass that are affected by tidal forces generated by the inlet. The specified beach spoil placement sites, being conditions of the unchallenged Permit, are not subject to challenge in this case. The Permit establishes the criteria by which specific work is to be authorized. Specific Condition 5 provides, in pertinent part, that: 5. No work shall be conducted under this permit until the Permittee has received a written notice to proceed from the Department for each event. At least 30 days prior to the requested date of issuance of the notice to proceed, the Permittee shall submit a written request for a Notice to Proceed along with the following items for review and approval by the Department: * * * Prior to the second dredging event authorized under this permit, and each subsequent event, the Physical Monitoring Data, as specified in Specific Condition 9, shall be submitted to select the appropriate placement locations. Specific Condition 9 provides that: Following the initial placement of material on Norriego Point, fill site selection shall be supported by the latest physical monitoring data over a minimum of five years in accordance with the adopted East Pass Inlet Management Implementation Plan (July 24, 2013). All physical monitoring shall be conducted in accordance to the Approved physical monitoring plan dated August, 2014. A notice to proceed for specific projects shall be withheld pending concurrence by the Department that the data support the proposed placement location. The purpose of Specific Condition 9 is to identify, using supporting monitoring data from the eastern and western areas of influence, the “adjacent eroding beach” most in need of sand from the inlet. The requirement that physical monitoring data be used to determine which of the beach spoil placement sites identified in the Permit’s Project Description will receive the spoil from any particular periodic dredging event was to implement section 161.142, Florida Statutes. That section mandates that “maintenance dredgings of beach-quality sand are placed on the adjacent eroding beaches,” and establishes the overriding policy of the state regarding disposition of sand from navigational channel maintenance dredging. East Pass Inlet Management Implementation Plan The East Pass Inlet Management Implementation Plan (“East Pass IMP”) was adopted by Final Order of DEP on July 30, 2013.2/ The East Pass IMP was not adopted through the rulemaking procedures proscribed by chapter 120, Florida Statutes, or DEP rules. Despite a comprehensive Notice of Rights advising persons whose substantial interests could be affected of the means by which the East Pass IMP could be challenged, it was not. There are 44 maintained inlets in Florida. About half have individual inlet management plans. The East Pass IMP is not applicable to any inlet other than East Pass. The East Pass IMP does not require that any quantity of dredged material from the dredging of East Pass be placed at any particular location other than as established in the Permit. Rather, the disposal site is to be determined on a case-by-case basis based on the best monitoring data available for the beaches in the area of influence of East Pass. The critical element of the IMP, and that in keeping with the statutory requirement that sand be placed on “adjacent eroding beaches” is the “strategy” that “the recent erosion of adjacent beaches observed over a minimum of five years shall define the placement need in terms of location and volume.” The East Pass IMP, being applicable only to East Pass, is not of “general applicability.” Furthermore, the East Pass IMP does not implement, interpret, or prescribe law or policy. The Notice to Proceed On January 30, 2018, the City filed its Request for Notice to Proceed (“Request”). The Request addressed the criteria in Specific Conditions 5 and 9 of the Permit. Upon review, DEP determined the conditions of the Permit were satisfied and issued the NTP on February 2, 2018. The analysis of data submitted as part of the Request was designed to show areas of erosion and accretion within the eastern and western areas of influence in order to identify “critically eroded beaches.” The shoreline of Santa Rosa Island to the west of East Pass has historically been stable. To be sure, as is the case with any shoreline, there will be some areas of erosion and some areas of accretion. After Hurricanes Ivan and Opal, areas of Santa Rosa Island experienced erosion. DEP declared the shoreline to be critically eroded after the 2004-2005 hurricane seasons, which prompted Okaloosa County to commission a study to monitor the health of the Monuments R-1 through R-16 beach segment, a segment that includes Petitioners’ residences. Despite the fact that no post-storm beach restoration occurred in the area, the beach recovered naturally and gained sand following the post-storm recovery. In addition, Santa Rosa Island is known for “beach cusps,” which are crenulate3/ shapes along the shoreline. Depending on the season and storm conditions, those beach cusps can have a localized erosive effect on the beach, but those tend to be seasonal. They do not negate what the evidence shows to be the overall stable to accretional conditions of the beaches west of East Pass from Monument V-622 to Petitioners’ residences. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches west of East Pass have large dunes; multiple dune lines; tall, and thick vegetated dunes indicating established dune growth; pioneering vegetation indicating active, healthy dune growth and accretion; partially buried signs indicating dune advance; and broad and expansive beaches. Those features are indicative of a stable and accretional shoreline. Mr. Trammell’s testimony as to the western spoil disposal site was convincing and is accepted. At present, the Santa Rosa Island shoreline is not deemed by DEP to be “critically eroded.” The photographic evidence supports the data collected over time for the beaches west of East Pass, and the testimony offered at the final hearing, which collectively establishes, by a preponderance of the evidence, that the beaches to the west of East Pass are stable and accretional, are not subject to erosion caused by East Pass, and are not “adjacent eroding beaches” as that term is used in section 161.142. The shoreline east of East Pass, including the eastern area of influence and the proposed dredge material disposal sites at Monuments R-17 to R-20.5 and R-23.5 to R-25, except for the area immediately abutting the eastern jetty, is highly erosional. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches east of East Pass exhibit the following signs of significant and ongoing erosion: extensive dune erosion; exposed sea oat roots; reduced beach elevation; reduced beach width; crenulate bays; newly built dune walkovers that replaced old walkovers claimed by erosion; dune walkovers in close proximity to the shoreline indicating that the shoreline had receded to the walkover; and beach scarping at the shoreline indicating active erosion. Mr. Trammell’s testimony as to the eastern spoil disposal sites was convincing and is accepted. The eastern areas of influence are currently designated to be “critically eroded” by DEP, a designation maintained for more than 10 years. The photographic evidence supports the data collected over time for the beaches east of East Pass, and the testimony offered at the final hearing, which collectively establishes, by a preponderance of the evidence, that the beaches to the east of East Pass are critically eroded, a condition that is influenced by East Pass and or its navigational channel, and are “adjacent eroding beaches” as that term is used in section 161.142. Data in Support of the NTP The data submitted by the City to DEP in support of the Request included monitoring data for the eastern beach placement areas from the West Destin Four-Year Post-construction Monitoring Report and earlier annual post-construction reports covering the period from October 2012 to July 2017, and additional data from the Holiday Isle Emergency Beach Fill Two-Year Post-construction Report. DEP was also provided with historical monitoring data for the area west of East Pass, including the Western Beach Monitoring Report, which covered 2006 to 2017, and the Potential Borrow Area Impact Report, which included data from 1996 through 2012. DEP has also received recent profile data from April 2019. These reports, and the data contained within them, cumulatively provide more than 20 years of survey date, and demonstrate convincingly that the shoreline to the west of East Pass has been stable or accreting, and the areas to the east are eroded. The data submitted in support of the Request was sufficient to meet Specific Condition 9 that fill site selection be supported by the latest physical monitoring data over a minimum of five years in accordance with the East Pass IMP. Petitioners argue that the City failed to comply with the PMP, which requires, among other things, that the analysis of the dredged material disposal area include “preconstruction survey data and the most recent survey conducted at least five years prior.” The PMP establishes that “[p]reconstruction surveys shall be conducted no more than 90 days before construction commences. A prior beach monitoring survey of the beach and offshore may be submitted for the pre-construction survey if consistent with the other requirements” of the PMP. The City submitted a prior beach monitoring survey of the beach and offshore that is consistent with the PMP. Petitioners argue that the City violated a temporal limitation which provides that the City “may submit a prior beach restoration monitoring report for the west or east beach areas (Walton-Destin or Western Destin Beach Restoration Project) if the monitoring data is collected within 1 year of the proposed maintenance dredging event and if consistent with the other requirements of this condition.” Petitioners acknowledge in their PRO that the beach restoration monitoring report was timely when the Request for NTP was submitted. The information contained therein was sufficient to support the notice of proposed action on the NTP. The otherwise compliant data is no longer within one year of the proposed dredge. In that regard, the litigation in this case, initiated by Petitioners, has been ongoing for almost one year. Work authorized by the NTP cannot go forward when subject to challenge. If the PMP, which is not a rule, is unreasonably read so as not to account for delay caused by litigation, such delay becomes a tool for use by, and a reward for, a person dissatisfied with DEP’s outcome. In this case, the NTP was lawfully issued pursuant to compliant data, surveys, and analysis. As with any permit or license subject to a third- party challenge, the terms of the NTP are tolled pending Petitioners’ litigation, and do not become a ground for denial of the otherwise compliant Request. See § 120.60(1), Fla. Stat. (“An application for a license must be approved or denied within 90 days after receipt of a completed application unless a shorter period of time for agency action is provided by law. The 90-day time period is tolled by the initiation of a proceeding under ss. 120.569 and 120.57. Any application for a license which is not approved or denied . . . within 45 days after a recommended order is submitted to the agency and the parties, . . . is considered approved unless the recommended order recommends that the agency deny the license.”).4/ Furthermore, DEP has now received recent profile data from April 2019. The evidence establishes that the data provided to DEP as part of the Request includes the latest physical monitoring data over a period of greater than five years, and that the data collection met the standards for conducting physical monitoring. Fill Site Selection The NTP authorized “placement of dredged material in the swash zone east of East Pass.” In accordance with the Permit, that authorized area extends eastward from R-17 to R-20.5 and from R-23.5 to R-25.5, in Holiday Isle. The evidence is persuasive that placing dredged material on the eastern side of East Pass would not result in erosion on the western side of East Pass. Dredged material placed in the western beach placement area, and in the “shadow” of the western jetty, will tend to remain in that area. It would take a very long time, if at all, for that material to migrate further to the west. However, dredged material placed to the east of East Pass would, if the lateral shoreline drift is east to west as asserted by Petitioners (though not supported by a preponderance of the evidence as set forth in paragraphs 11 through 13), be introduced into the ebb shoal and likely move faster to the west as opposed to it being placed directly at the base of the west jetty. As such, placement of the dredged material on the eastern beach placement areas would, more likely than not, accomplish the beach effect objectives set forth in the Petition. The Eglin AFB Beach Restoration Project Petitioners relied heavily on photographs taken in 2010 and 2019 from roughly the same location in the vicinity of Monuments V-607 to V-608 to demonstrate that the beaches of Santa Rosa Island are eroding. The area depicted is outside of the area of influence of East Pass, and outside of the western beach placement area under the Permit. Those photographs depict a wide expanse of beach in 2010, with a seawall well upland from the shore in 2010. Then, in 2019, a photograph depicting the same stretch was offered that showed the same seawall, now at or below the water line. The photographs were, ostensibly, designed to depict naturally occurring erosion in the area. Mr. Clark testified that the seawall and boulder mound structure depicted in both photographs protect an Air Force mission-critical tracking facility. The seawall was originally constructed in 1979 after Hurricane Frederick, was constructed at that time to extend into the water, and was maintained in that configuration through the 1990s. One could not walk around the original seawall. Rather, for most of its history, passage around the seaward side of the seawall could only be accomplished by swimming or wading. The original seawall was damaged by Hurricane Opal, and destroyed by Hurricanes Ivan and Dennis in 2004 and 2005. The Air Force, needing to reconstruct the wall, applied for and received a joint coastal construction permit, allowing the structure to be constructed on sovereign submerged land below the line of mean high water. The seawall was rebuilt and, as stated by Mr. Clark, “it was in the water.” In 2010, the Air Force performed the small Eglin Air Force Base Beach Restoration Project, which placed artificial fill in front of the seawall, thereby creating a temporary beach. That beach fill project was “a one-shot deal,” did not involve any subsequent maintenance, and is now essentially gone, as was expected. Mr. Clark was neither surprised nor concerned with the fact that the area returned to what he described as its natural state, with the seawall below mean high water. The 2019 photograph was presented as evidence of erosion caused by East Pass. That was not the case. Rather, the 2010 photograph was evidence of an artificial and singular event, and the 2019 photograph depicts the natural state of the shoreline. Rather than depicting erosion, the 2019 photograph depicts a return to the stable shoreline that exists all along Santa Rosa Island to the west of East Pass. The photographs of the site of the 2010 Eglin Air Force Base Beach Restoration Project do not support a finding that the beaches of Santa Rosa Island are anything but stable, if not accretional, nor do they support a finding that the beaches of Santa Rosa Island are eroding. Ultimate Factual Conclusion Specific Condition 9 of the Permit requires the location of the spoil disposal be supported by the latest physical monitoring data over a minimum of five years in accordance with the East Pass IMP and the PMP. The greater weight of the competent substantial evidence establishes that the City submitted physical monitoring data consistent with the requirements of Specific Condition 9. The greater weight of the competent substantial evidence establishes that the eastern areas of influence of East Pass, including the beach disposal areas at R-17 to R-20.5 and R-23.5 to R-25.5, are critically eroded, a condition influenced if not caused by the East Pass, and constitute East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the western areas of influence of East Pass, including the beach disposal areas at Monuments V-611 to V-622, are stable, if not accreting, and are not East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the City met the standards for the NTP as proposed for issuance by DEP on February 2, 2018. Evidence to the contrary was not persuasive. Thus, the NTP should be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order: Approving the February 2, 2018, Notice to Proceed for the maintenance dredging of East Pass as authorized pursuant to Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 50-0126380-005-EI and State- owned Lease No. 0288799-003-JC, subject to the general and specific conditions set forth therein; and Denying the City of Destin’s Motion for Attorney’s Fees, Expenses and Costs pursuant to section 120.595(1). DONE AND ENTERED this 14th day of October, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2019.
The Issue The issue for determination is whether the Town of Indian River Shores is entitled to a coastal construction control line permit to construct a beach access seaward of the coastal construction control line in Indian River Shores, Florida.
Findings Of Fact The Town of Indian River Shores (Town) is an incorporated municipality located on a five-mile stretch of the Atlantic Ocean in Indian River County, Florida. The Town has a population of approximately 2,700 residents. The Town's Public Safety Department has the combined functions of law enforcement, fire protection, and life support (lifesaving). All of the Officers of the Public Safety Department are cross-trained and cross-designated as police officers, firefighters, and emergency service specialists who are either paramedics or emergency medical technicians (EMTs). The Officers are on eight-hour shifts; each shift has approximately four to five Officers on duty, i.e., a police officer, a firefighter, a paramedic, and an EMT. When fully staffed, the Public Safety Department consists of 25 Officers. Because of the small number of Officers and their varied duties, restrictions and limitations are placed on their deployment. One of the vehicles used by the Public Safety Department in the performance of duties is an all terrain vehicle (ATV). The Public Safety Department has one ATV which is used on the beach for patrol and rescue purposes and for moving rescue and lifesaving equipment to and from the beach. In order to access the beach, the Public Safety Department must travel across the dune, primarily through private property (Corrigan Beach) located approximately 3.4 miles from the office of the Public Safety Department. The Town determined that this location was unsatisfactory for beach access due to the property being offered for sale, the great distance of the property from the Public Safety Department's office, and the dune being breached each time the ATV is taken onto the beach. The Town determined, however, that Beachcomber Lane, a public street within the Town, was the best choice for beach access and entry by the Public Safety Department. Beachcomber Lane is approximately 1,000 feet in total length and extends from Highway A1A to the bluff of the Atlantic Ocean. The Pubic Safety Department is located approximately 1,500 feet from Beachcomber Lane. The residents of Beachcomber Lane include Peter Broom, Jeremy R. Geffen, and Duane Jackson. At various times, the Public Safety Department has also used Beachcomber Lane as an access to the beach on emergency bases. Currently, a public raised wooden walkway, with steps, leads over the dune and onto the beach at the Atlantic Ocean end of Beachcomber Lane. In order for the Public Safety Department to obtain beach access by way of Beachcomber Lane, an access ramp will have to be constructed seaward of the coastal construction control line (CCCL). Such construction requires, among other things, a permit from the Department of Environmental Protection (DEP). To design and present the plan to the DEP for a proposed beach access by way of Beachcomber Lane, the Town obtained the services of Coastal Technology Corporation (Coastal Technology), an engineering firm. On July 24, 1996, Coastal Technology filed an application on behalf of the Town with the DEP for a permit to construct a beach access ramp seaward of the CCCL. The application process included the submission of detailed drawings and other documents required by DEP. In the application, Coastal Technology described the construction, in pertinent part, as follows: 6. The proposed work consists of the removal of Brazilian Pepper . . . and installation of a 100 foot (approximate) long, 10 foot wide stabilized emergency access ramp. To minimize the impact to the existing native vegetation, the proposed emergency access ramp will be located approximately 8 feet from the north Right-of-Way within the area of the existing Brazilian Peppers. . . . A 2-inch layer of washed concrete sand will be placed between the limestone and paver blocks for a proper leveling of the previous paver blocks. The paver blocks will be TURFSTONE . . . which . . . have been permitted by DEP at other locations. . . . The openings in the TURFSTONE will be filled with excavated beach sand from the proposed access ramp footprint. Any remaining sand . . . will be placed at the seaward end of the proposed access ramp. To mitigate for any potential impact to native vegetation, 6 sea grapes will be installed . . . and any sea oats removed during excavation will be kept alive and replanted within those areas void of sea oats. Three 6-inch by 6-inch pressure treated posts will be installed with a chain fence. A locking chain fence will be used to prohibit the general public from accessing the beach through the emergency access ramp. In the application, Coastal Technology presented the justification for the construction, in pertinent part, as follows: 7. The proposed access ramp at Beachcomber Lane is specifically for the use by the Town of Indian River Shores for emergency access to the beach. The access ramp will have a locking chain only accessible by the Public Safety Department and has been designed to accommodate four-wheel drive patrol and EMT vehicles. . . . Beachcomber Land [sic] site was chosen by the Town because of : 1) the relative stability of the shoreline at that location; and, [sic] 2) accessibility from the Indian River Shores Town Hall which is on the west side of A1A across from Beachcomber Lane. The application indicated that the proposed beach access ramp was being constructed for emergency access to the beach. However, prior to the filing of the application, both emergency and routine patrol access by the Public Safety Department were discussed as uses for the access ramp at public meetings by the Town's public officials in which the subject of the access ramp was brought up. Such use for the beach access ramp was contemplated by the Town from the very inception of the plan for the access ramp. Routine patrol is defined by the Public Safety Department to be patrolling approximately every other day for one or two hours. By notice dated August 7, 1996, the DEP requested public comment on the Town's application for the CCCL permit. By letter dated August 21, 1996, residents of Beachcomber Lane, including Mr. Broom, Mr. Geffen, and Mr. Jackson, provided the DEP with their comments on the Town's application. On September 3, 1996, the Town's application for the CCCL permit was considered complete by the DEP. On November 6, 1996, at the request of DEP, the Town conducted a public meeting to obtain public comments regarding the proposed beach access ramp. The residents of Beachcomber Lane were notified of the public meeting, and among the residents attending the meeting were Mr. Broom, Mr. Geffen, and Mr. Jackson. At the public meeting, the Town clearly stated that the proposed beach access ramp would be used by the Public Safety Department for both emergency and routine patrol purposes with the ATV. Also, the Director of the Public Safety Department indicated that, based upon information collected regarding criminal activity and suspected criminal activity along the beach, routine patrol was needed.2 The application process culminated in the issuance of a Final Order by the DEP on November 27, 1996, granting the CCCL permit, with special permitting conditions in addition to the standard conditions. The CCCL permit granted by the DEP was Permit No. IR-507. The proposed beach access ramp to be constructed is approximately 100 feet in length and 10 feet in width. The construction will utilize turf blocks which permit grass and foliage to grow through the blocks on the access-way. A provision of the DEP Final Order requires the removal of exotic plants (Brazilian Pepper), which are not native plants, and the replanting of native vegetation adjacent to the access-way. On December 6, 1996, public notice of DEP's issuance of the CCCL permit to the Town was published in the Town's local newspaper. The Town agrees to abide by the special conditions, as well as the standard conditions, to the issuance of the CCCL permit. The beach access ramp on Beachcomber Lane will be used by the Town's Public Safety Department for public service purposes, including emergency rescue, training, and routine patrol. Beachcomber Lane is the appropriate location for the beach access ramp. The DEP has determined that the construction of the beach access ramp meets all the requirements of the DEP for the issuance of the CCCL permit. The DEP has determined the proposed beach access ramp to be a minor structure. The construction of the proposed beach access ramp will cause no significant adverse impact or cumulative impact on the beach dune system. The design of the proposed beach access, with the conditions added by the DEP, minimizes adverse impact of the access ramp. Native vegetation will be maintained and replenished around the proposed beach access ramp. The proposed construction of the beach access ramp will not result in a significant adverse impact to the beach and dune system. No net excavation in the sandy soils seaward of the control line will result from the construction. No structurally induced scour will result from the construction because the proposed structure is designed to break- away during a storm. The potential for wind and waterborne missiles during a storm is minimized by the construction. Public access to the beach is not interfered with by the beach access ramp. The construction of the beach access ramp will occur in a nesting habitat of the marine turtle, i.e., loggerhead, leatherback and green turtle. The DEP addressed protection of the nesting area through one of its special conditions to the issuance of the CCCL permit. The special condition included "no construction, operation, transportation or storage of equipment or materials seaward of the dune crest during the marine turtle nesting season" which is March 1 through October 31 of each year. With this special condition, the construction, itself, will have no adverse impact on the marine turtle or the turtle nesting. The Town agrees to abide by this special condition.3 The access ramp, itself, will have minimal impact on the marine turtles and will not cause a "take" of the turtles. Furthermore, the use of the ATV by the Public Safety Department will have no adverse impact on the marine turtles or the turtle nesting. At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Town of Indian River Shores the Coastal Construction Control Line Permit No. IR-507, with the special conditions as may be required by the Department for the protection of marine turtles. DONE AND ENTERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1997.
Findings Of Fact On 24 July 1979 the Board of County Commissioners of Palm Beach County adopted Resolution R-79-887 petitioning the TIITF to establish an erosion control line (ECL) extending from South Lake Worth Inlet to the northern city limits of Delray Beach in conjunction with a beach restoration project in the same area. The project as then proposed encompassed extension of the south jetty at the Inlet 170 feet, construction of eight groins at 400-foot intervals commencing just south of the Inlet, and widening the beaches by 500 feet with 150 feet above the mean high water and 350 feet below mean high water, for a distance of approximately 4.8 miles. The restoration project is proposed to be accomplished with sand from a borrow area located approximately one-half mile off shore. The project is designated "Ocean Ridge-Briny Breezes" beach restoration project. SLWID objected to the project and, following conferences between Palm Beach County, SLWID and DNR the County amended its project to exclude property owned by SLWID from the ECL and beach restoration projects with the restoration of the beach to commence 300 feet south of the Inlet and continue for 2.6 miles to the town of Briny Breezes. Extension of the jetty and installation of groins were deleted. Palm Beach County's proposed beach restoration project was authorized by the U.S. Congress and the U.S. Army Corps of Engineers in House Document 164 (Exhibit 5). The proposed "Ocean Ridge-Briny Breezes" beach restoration project was designed in accordance with the criteria set forth in Exhibit 5. The project is designed to restore the severe beach erosion that has occurred in the 2.6-mile project area and to provide the affected uplands protection against the ten-year design storm event. The ten-year design storm event implies a 3.8-foot storm surge with up to eight-foot waves superimposed thereon. The proposed ECL has been surveyed by Palm Beach County along the mean high water line in the proposed area. Over 60 percent of the ocean front property owners have approved the establishment of the ECL in conjunction with a beach restoration project by executing letters of consent. Following notice by DNR a public hearing was held on February 13, 1980, to receive evidence relative to the necessity and propriety of the proposed beach restoration project and the proposed location of the ECL. The Hearing Officer's report (Exhibit 28) concluded that there is a definite need to restore the proposed area where severe beach erosion has occurred and the establishment of the ECL would accomplish the purpose stated in Section 161.161, Florida Statutes. Approval of the project was recommended. The staff of DNR approved the project and prepared the agenda item for the next meeting of the TIITF in which this project was to be considered for final approval. Prior to this meeting of the TIITF, SLWID filed its initial Request for Formal Proceeding and the item was removed from the TIITF agenda and referred to the Division of Administrative Hearings. The beach erosion in the project area has been documented by Palm Beach County, DNR and the U.S. Army Corps of Engineers. Much of the erosion in the northernmost mile of the project has involved the beach above high water, as well as the offshore beach, while the erosion in the southern 1.6 files of the project has predominantly been offshore. During the period 1955-1981 approximately 1.6 million cubic yards of sand has been lost in the project area. Beach erosion determinations are made by calculating both onshore and offshore changes in the beach profile. Significant offshore erosion will lead to onshore beach recession by storm-generated waves. A gradually sloping beach is a natural absorber of wade energy and the most effective. Since maximum wave height is a function of the depth of the water, waves rapidly dissipate when they reach shoal water. With offshore erosion and the resulting deeper water near the shore, incoming waves can be higher and will impact on the upland area with greater force than would occur with a gradually sloping beach. There is a net annual littoral drift of 200,000 cubic yards of sand southward in the project area. Prior to the construction of the Inlet this drift replaced sand lost during storms, thus creating a dynamic beach which receded and was augmented from time to time. The installation of the jetties disrupted this littoral flow and caused the sand to build up on the beach north of the jetty while starving the beach south of the jetty. This problem was partly corrected by the erection of a sand transfer plant on the north jetty which pumped some of this sand across the Inlet to the beach south of the Inlet. The sand transfer plant was not operated during WWII due to the fuel shortage and severe erosion occurred in the project area. Following WWII the sand transfer plant was replaced in operation, sand was dredged from the Inlet and deposited on the beach south of the Inlet and the beach in the project area was largely restored. In 1967 the north jetty at the Inlet was extended and the sand transfer plant was moved eastward some 130 feet. This plant is a fixed plant consisting of a suction line on a boom which dredges sand to be pumped south of the Inlet only from the area that can be reached by the boom. Although capacity of the plant is adequate to pump the sand needed to replace in the project area that sand intercepted by the jetty, due to the limitation of the plant to reach a larger area there is insufficient sand available for the plant to pump to capacity. As a result, even if the plant operated all the time and there was sand available to pump, there would still be a net loss of sand in the project area (Exhibit 21). During recent winter storms property-threatening beach erosion has occurred to beach property in the project area. Some of the property owners have erected bulkheads and seawalls and others are proceeding with plans to do so. In some places in the north portion of the project area there is no exposed beach at high water. In the southern portion of the project area the offshore erosion will, if left to continue, result in severe damage and loss of upland beach if impacted with seas commensurate with a ten-year design storm event. This erosion, both on and offshore, will, if uncorrected, result in a calculated total of 134 feet of beach recession for the ten-year design storm event. This could result in the inundation of S.R. A1A, which runs near the beach in the northern portion of the project area. S.R. A1A is the primary north-south highway east of the Intracoastal Waterway and the evacuation route to the bridges to the mainland in the event evacuation of the beach is necessary in a hurricane situation. The proposed beach restoration project is designed to replace sand lost offshore and onshore erosion in the the project area and provide a sloping beach to absorb wave impact. It will not accelerate erosion. The proposed restoration of the beach will protect property and structures in the project area against the forces associated with a ten-year design storm event. Addition of the 1.5 million cubic yards of sand in the project area will result in some sand infiltration of the Inlet. This was calculated at 8,000 cubic yards the first year, 6,000 cubic yards the second year and 4,000 cubic yards per year thereafter. This will result in insignificant shoaling in the Inlet but will require infrequent maintenance dredging. It will not adversely impact the tidal prism in the Inlet or materially increase the maintenance of the Inlet. Heavy storms result in immediate loss of sand from the upland beach. Most of this sand is deposited in the offshore beach and is returned to the upland beach by the normal action of waves and tides. Approximately ten percent of the sand so removed from the upland beach is not returned but is lost.
The Issue Whether Permit Number 9330008850 (a building permit for the construction of a single-family residence and swimming pool) issued by Monroe County, Florida, to Fred Snowman is inconsistent with Monroe County's setback requirement pertaining to beach berms that are known turtle nesting areas.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Sections 380.031(18), 380.032, and 380.07, Florida Statutes. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County, Florida. Monroe County issued the development order that is the subject of this appeal. Respondent Fred Snowman is a general contractor and is the owner of real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida. The subject property is a residential lot that measures 100 feet by approximately 225 feet and was acquired by Mr. Snowman in September 1992. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean. Respondent's lot is within the Florida Keys Area of Critical State Concern. On September 30, 1993, Monroe County issued building permit, Permit Number 9330008850, to Fred Snowman as Owner and General Contractor. This building permit is a development order in an area of critical state concern and is the subject of this proceeding. As reflected by the approved site plans, the permit authorizes the construction of a 2,472 square foot single-family residence with 1,568 square feet of porches, a 1,435 square foot storage enclosure below base flood elevation, and a swimming pool on the property. As permitted, all construction will be setback at least 75 feet from the mean high water line. There is no dispute between the parties as to where the mean high water line is located. Sections 9.5-335 through 9.5-345, Monroe County Code, are land development regulations that contain certain environmental performance standards relating to development. The purpose of these standards is "to provide for the conservation and protection of the environmental resources of the Florida Keys by ensuring that the functional integrity of natural areas is protected when land is developed." See, Section 9.5-335, Monroe County Code. Included in the environmental standards of the land development regulations is Section 9.5-345, Monroe County Code, entitled "Environmental design criteria," which provides, in relevant part: Disturbed Lands: All structures developed, used or occupied on land which are [sic] classified as disturbed on the existing conditions map shall be designated, located and constructed such that: * * * (3) On lands classified as disturbed with beach berm: * * * f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; There is little dispute that Lower Matecumbe beach is an active nesting area for marine turtles. Loggerhead turtles, the primary marine turtles which nest on Atlantic beaches in the Keys, are a threatened species under the federal Endangered Species Act. There are thirty beaches in the Florida Keys which consist of loggerhead nesting habitat. The beach that fronts Mr. Snowman's property on Lower Matecumbe Key is a known turtle nesting beach that is ranked as the second most heavily nested beach in the Keys. The Monroe County comprehensive plan recognizes the beaches on Lower Matecumbe Key as known loggerhead turtle nesting beaches. Pursuant to the comprehensive plan, the County has prepared endangered species maps as a tool to be utilized in identifying known turtle nesting areas. At the time Mr. Snowman obtained approval of his permit application from Monroe County, the County's endangered species maps omitted an approximately 1.5 mile stretch of Lower Matecumbe Beach, including Mr. Snowman's property, from its map designation of a known nesting habitat. However, since that approval, the map, which is subject to periodic updates, has been updated by the County to reflect that all of Lower Matecumbe Key, including Mr. Snowman's property, is considered by the County to be known turtle nesting habitat. Mr. Snowman did not rely on the designation on the endangered species map in making his decision to purchase the subject property or in designing the improvements he seeks to construct on the property. Surveys of turtle nesting behavior in the Florida Keys are accomplished through a network of volunteers. The nesting survey information obtained from this volunteer network provides very general locations with varying degrees of accuracy depending on the number and ability of the volunteers and the extent to which they can obtain access to privately owned beach front property. Because of the limitations in the survey data, is it generally not possible to determine whether turtles have nested on a particular lot. There was no evidence that turtles actually nest on Mr. Snowman's property. Marine turtles most commonly nest within the first 50 feet landward of the mean high tide line, although they have been known to go farther upland. Because of the compressed beach and berm habitat in the Keys, loggerhead turtles have been known to nest in grassy vegetation and woody vegetation more than 50 feet landward of the mean high water line. Mr. Snowman's property is properly designated as "Disturbed Lands" and there exists on this property a "beach-berm complex" which is known to serve as an active nesting area of marine turtles within the meaning of Section 9.5- 345, Monroe County Code. The setback requirement found in Section 9.5-345, Monroe County Code, applies to this development. Consequently, no construction of any structure may be located within fifty (50) feet of any portion the beach- berm complex which is known to serve as an active nesting area of marine turtles. There was a conflict in the evidence as to how much of Mr. Snowman's property should be considered to be a beach-berm habitat. The County has identified the landward extent of the beach-berm to be twenty-five feet from the mean high water line, so that the setback would be to a point at least 75 feet from the mean high water line. The Department has identified the landward extent of the beach berm to be 80 feet from the mean high water line so that the setback would be to a point at least 130 feet from the mean high water line. Section 9.5-4(B-3) contains the following definition that is pertinent to this proceeding: (B-3) "Beach berm" means a bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. There are two distinct ridges located on the Snowman property. Beginning at the mean high water line, there is an area of sandy beach followed by a ridge (the first ridge) that levels off approximately 25 feet from the mean high water line. Behind this first ridge is another ridge that levels off approximately 80 feet landward of the mean high water line. This second ridge contains the highest elevation point on Mr. Snowman's property, with the crest of the second ridge corresponding with the 5.9 foot elevation reflected on Respondent's site plan. There is no vegetation on the beach, which is an area of sandy substrate, until the landward downslope of the first ridge, where vegetation in the form of grasses and sea oats appear. Grasses and sea oats extend approximately 30-40 feet landward into the beginning of the second ridge. Behind the grasses and sea oats is woody vegetation, Bay Cedar, and shrubbery typical of beach front property. Also found on the property and landward of the first ridge are sea grape, wild sage, gray nicker pod, and prickly pear cactus. Monroe County considers this first ridge to be the extent of the beach berm complex on the Snowman property. The County identifies the back of the berm on the subject property as measuring 25 feet landward of mean high water and applied the 50 foot setback requirement from that point. The determination of the extent of the beach berm by the County is consistent with the definition of the term "beach berm" contained in Section 9.5-345(3)f, Monroe County Code, and is supported by the greater weight of the evidence presented at the formal hearing. Consequently, it is found that the beach berm complex on the Snowman property extends 25 feet landward of the mean high water mark so that the setback requirement was properly applied when the development order was issued. The Department asserts that the second ridge should be considered to be part of the beach berm. The Department's determination of the extent of the beach berm is bottomed on a more expansive definition of the term "beach berm" derived from its interpretation of various portions of the Monroe County Comprehensive Code. Inexplicably, the Department's interpretation of what should be considered to be included as part of the "beach berm" ignores the definition contained in Section 9.5-345(3)f, Monroe County Code. The Department interprets the term "beach berm" to include not only the initial increase and decrease in elevation near the shoreline, but also those areas of calcareous substrate that form the second ridge and include the highest elevation on the subject property. The Department considers the beach berm to terminate 80 feet from the mean high water line where the elevation of the second ridge decreases and levels off to a more consistent grade. The Department characterizes the first ridge as a primary dune the second ridge as a secondary dune. In support of its position, the Department cites the discussion of beach berms in the Florida Keys contained in Volume I of the Monroe County Comprehensive Plan. That discussion describes a berm in the Keys as the "higher, mostly vegetated dense-like sand ridges." According to the Comprehensive Plan, the biota characteristics of beach systems in the Keys occur in up to four distinct generalized zones or associations, assemblages of plants and animals that have adapted to the environmental conditions of that zone. The zones on Keys beaches are described by Volume I of the Comprehensive Plan as follows: The strand-beach association is dominated by plants that are salt tolerant, root quickly, germinate from seed rapidly, and can withstand wave wash and shifting sand. Commonly found species include Sea Purslane, . . . Beach Grass, . . . Sea Oats, . . . [and] Bay Cedar. On most Keys beaches this association occurs only atthe base of the berm since the beach zone is very narrow. These plants also occupy themost seaward portion of the berm and continuesome distance landward. * * * The next zone, "strand-dune" association,begins with a steep and distinct increase inslope upward from the beach. . . . The bermmay be elevated only several inches or as much as several feet above the level of the beach and may extend landward hundreds of feet as a flat-topped plateau or beach ridge. The foreslope of the berm, or beach ridge, is vegetated primarily by the above-listed species of the beach association. Grasses and herbaceous plants, which serve to stabilize this area, are most common. Proceeding landward, these pioneer species are joined by other species. * * * The strand-scrub association is generallyconsidered a transition zone between strand-dune and hammock forest. Shrubs and occasional trees occur more frequently here and become more abundant as one proceeds landward. Species often found include Seagrape, . . . Wild Sage (Lantana involucrata), [and] Gray Nicker. . . . The most landward zone on the berm is occupied by tropical hardwood hammocks. The term "berm" is identified in the Monroe County comprehensive plan as . . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm. * * * The height and width of berms in the Keys is highly variable. They may range in height from slightly above mean high water to more than seven (7) feet above mean sea level. The width of berms in the Keys varies from tens of feet to more than 200 feet. Despite the support the Department found in the Comprehensive Plan for a more stringent setback requirement, the Department is not at liberty to ignore the definition of the term beach berm contained in the land development regulations. While both ridges that exist on the Snowman property may be considered berms or dunes, only the first should be considered a beach berm. The first ridge is ". . . a bare, sandy shoreline with a mound or ridge of unconsolidated sand" within the meaning of Section 9.5-4(B-3), Monroe County Code. The second ridge is above the vegetation line and is not ". . . a bare, sandy shoreline" within the meaning of the definition of beach berm contained in the Monroe County land development regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order that adopts the findings of fact and the conclusions of law contained herein and denies the appeal filed by the Department of Community Affairs as to building permit number 9330008850 issued by Monroe County, Florida. DONE AND ENTERED this 25th day of October, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7165DRI The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 13, 14, 15, 16, 17, 18, 21, 25, 26, 27, 29, 32, and 33 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 9 and 23 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 10, 11, 12, 24, 28, and 31 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 19 are rejected as being unsubstantiated by the evidence and as a misconstruction of the cited testimony. The proposed findings of fact in paragraphs 20, 22, and 34 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 30 are rejected as being unnecessary to the conclusions reached since the setback is from any portion of the "beach berm complex" and not from any area that may be considered to be turtle nesting habitat. The following rulings are made on the proposed findings of fact submitted by the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, and 5 are summaries of testimony that are subordinate to the findings made. The proposed findings of fact in paragraph 6 are rejected as being unsubstantiated by the evidence and contrary to the findings made. The proposed findings of fact in paragraph 7 and 8 are adopted in material part by the Recommended Order. COPIES FURNISHED: Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Nicholas W. Mulick, Esquire 88539 Overseas Highway Tavernier, Florida 33070 Randy Ludacer, Esquire Monroe County Attorney Fleming Street Key West, Florida 33040 Mr. Fred Snowman Post Office Box 771 Islamorada, Florida 33035 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission Carlton Building Tallahassee, Florida 32301
Findings Of Fact Vroom acquired an existing, incomplete condominium project of 96 units on the ocean side of U.S. Highway #1 at mile marker, 83.2, Islamorada, Florida. The project, now called Beacon Reef, is to be finished as a luxury facility with complete recreational facilities, including those for water-oriented sports. In February, 1980, Vroom filed a short-form application with DER for a permit to construct a private 425 foot x 6 foot pier for the condominium with four-finger piers on "T" sections, ranging in length from 335 feet to 240 feet, spaced 55 feet apart, and install 97 pilings, a maximum 450 feet seaward so as to provide one boat slip for each unit. The old existing dock will be removed (DER #3). A subsequent revision (DER #4) aligned the proposed pier with the one of Petitioner, who owns the property adjacent to the south. Following DER's appraisal (DER #1 and #2) and Vroom's agreement to use a small boat and motor to move the construction barge (DER #6), DER noticed its intent to issue the permit on May 19, 1980 on the finding that, pursuant to Sections 253.123 and 403.087, Florida Statutes, and Section 17-4.07, Florida Administrative Code, "the project will not adversely impact navigation, marine resources, nor water quality, providing the following stipulations are met: Construction shall not be initiated until Department of Natural Resources' approval is received. Construction barge shall be maneuvered in position with a small fifteen foot boat with a small 50 hp or less outboard motor. There shall be no fuel nor sewage pump-out facilities. No live-aboards shall be permitted. A day marker shall be placed approximately 30 feet waterward of each end of the outward "T" section to define and mitigate destruction of adjacent shallow water areas. Vroom accepted these restrictions and at the hearing, further agreed to place channel markers from the pier to the closest navigable point about 1/2 mile away so as to eliminate one of the concerns of the South Florida Regional Planning Council (DER #7). DER's two environmental specialists' testimony and appraisal concluded that the construction and use of the pier would not adversely impact on the water quality or biological resources nor interfere with navigation. The substrata is generally hard rock with scattered turtle grass and cuban shoal- weed found seaward as the water depth increases. This type of bottom is called "flats" as it is shallow with a uniform or gradually-sloping bottom; it is the typical feeding ground for one of the popular sports fish called Bonefish. Although these fish are easily frightened by the noise of a boat engine, the record does not reveal that this is harmful to the fish. The Petitioner speculated, surmised or opined that the use of the pier would damage or have an adverse impact on the water quality and marine resources, and interfere with navigation. However, beyond the allegations, no evidence was presented in support of these contentions.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation grant the application of Vroom International, Inc. to build a pier in connection with its Beacon Reef Condominium, Islamorada, Florida, subject to the restrictions stated in the intent to issue, together with the requirement that markers be installed and maintained on either side of a channel connecting the pier and the closest and best navigable waters. DONE and ENTERED this 16th day of October, 1980, in Tallahassee, Florida. HAROLD E. SMITHERS Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980. COPIES FURNISHED: Richard H.M. Swann, Esq. GASTON, SNOW, ET AL. 2809 Ponce de Leon Boulevard Suite 550 Coral Gables, FL 33134 H. Ray Allen, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Fred Tittle, Esq. Post Office Drawer 535 Tavernier, FL 33070 Vroom International, Inc. c/o John P. Wilson Upper Keys Marine Construction Box 18AAA Key Largo, FL 33037 =================================================================
