The Issue Whether the permit application of Clifford S. and Maria Ray (the "Rays") meets the statutory and rule requirements for the Department of Environmental Protection ("DEP" or the "Department") to issue to the Rays a permit to construct a multi- family dwelling and related structures seaward of the coastal construction control line ("CCCL") on their property in Brevard County?
Findings Of Fact Legislative Intent re: Beaches and Coastal Barrier Dunes The Legislature has declared that the beaches and the coastal barrier dunes in this state, subject by their nature to severe fluctuations, represent one of the most valuable resources of Florida. See § 161.053(1)(a), Fla. Stat. The Legislature has further declared that it is in the public interest to preserve and protect the beaches and dunes from imprudent construction because it can "jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access." Id. The Legislature has therefore directed the Department of Environmental Protection "on a county basis along the sand beaches of the state fronting the Atlantic Ocean [and other salt water bodies]" to "establish coastal construction control lines." Id. The "Coastal Construction Control Line" A line of jurisdiction, rather than a line of prohibition, the Coastal Construction Control Line (the "CCCL or the "Control Line") is defined in Chapter 62B-331 of the Florida Administrative Code. The Control Line is: the line established pursuant to provisions of Section 161.053, F.S., and recorded in the official records of the county, which defines that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions. Fla. Admin. Code. R. 62B-33.002(12). The Department's Office of Beaches and Coastal Systems has regulatory authority to permit or deny construction seaward of the Control Line pursuant to statutory and rule criteria. This proceeding concerns the exercise of that authority in the form of issuance of a permit for activity seaward of the Control Line in Brevard County. Brevard County's Control Line The Control Line in Brevard County was established by the Department of Natural Resources, an agency of the state and a predecessor of DEP, in 1981 (the "1981 CCCL"). A second Control Line in Brevard County was established in 1986, again by the Department of Natural Resources. It is approximately 150 feet landward of the 1981 CCCL. It will be referred to in this order as "the CCCL" or "the Control Line." The line established in 1981 will be referred to as the "1981 CCCL," to distinguish it from the Control Line established in 1986, the Coastal Construction Control Line applicable to this proceeding. The Parties Mrs. Pope Petitioner, Carole C. Pope, owns with her husband James M. Pope, oceanfront property located at Wilson Avenue, Brevard County, Florida, where the Popes reside part time. The Popes' property has a Cocoa Beach mailing address, but is not within the city limits of Cocoa Beach. Littoral to the Atlantic Ocean, the Popes' property was identified in the pre-hearing stipulation in the Rule-related Cases (discussed in this Order's Preliminary Statement) as "Lot 11, Block 101, Avon by the Sea as described in Plat Book 3, page 7 [presumably the Official Records of Brevard County] and east to Ocean, except the west 13 feet of Lot 11." See Final Order, Pope v. Department of Environmental Protection et al., Case No. 03-3860RX, paragraph 7, page 9. The Popes have two duplex units on their property. Built in the 1950's, they consist of concrete foundations, block walls, and 10-foot-high flat roofs. Mrs. Pope and her husband have retained the native, salt-tolerant vegetation that surrounds the duplexes. Protective of the property because it serves to enhance and stabilize the primary/frontal dune, it also adds to Mrs. Pope's enjoyment and use of her property. She enjoys the native flora, an integral part of the habitat of native fauna (gopher tortoises and indigo snakes, for example) that she enjoys watching. She particularly enjoys feeding and interacting with the sociable scrub jay. The Department and its Office of Beaches and Coastal Systems The Department is responsible for the administration of Parts I and II of Chapter 161, Florida Statutes, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control lines; activities seaward of the coastal construction control line; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties." § 161.053 (21), Fla. Stat. Pursuant to its rule-making authority in Section 161.053 (together with other specific authority), Florida Statutes, the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)." The Office is in the Department. Fla. Admin. Code R. 62B-33.002(11). Permits for construction or other activities seaward of the construction control line, such as the permit in this case, are issued pursuant to Section 161.053, Florida Statutes, by the Program Administrator of the Bureau of Beaches and Wetland Resources on behalf of the Department. See Respondents 1, Vol. 2, Tab 22. The Department has not delegated Chapter 161 permitting authority to Brevard County. The Rays Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No. BE-1083, preliminarily issued by the Department in its final order of September 19, 2003. The property consists of four 50-foot-wide lots, Lots 12, 13, 14 and 15 in Avon by the Sea. Lot 12 is immediately adjacent to Mrs. Pope's property. Some of the native vegetation on the property has been disturbed by the planting of sod and installation of an irrigation system seaward of the Brevard County coastal setback line and the Control Line. The activity is the subject of administrative enforcement actions by the County and DEP. Although government claims of violations had not been resolved finally as of the date of hearing, the Rays have not resisted the claims. The Permit was issued to the Rays under the authority of Section 161.053, Florida Statutes. It authorizes activities on the Ray property seaward of the CCCL. This activity includes the construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry wall and an exfiltration trench, as described in more detail in the section of the Permit entitled "PROJECT DESCRIPTION." Respondents Ex. 1, Vol. 2, Tab 22, Permit No. BE- 1083, p. 2-3. The Department was not aware of the claims of violations made against the Rays referred-to above at the time that Mr. Tammisetti, the engineer assigned to review the permit file initially, recommended that the permit be issued. Had Mr. Tammisetti been aware of the claims he still would have recommended issuance of the permit. Coastal Systems and Fixed Coastal Cells The term "Coastal System" is defined by the Department in its rules: "Coastal System" is the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and structures. Fla. Admin. Code R. 62B-33.002(13). Within the coastal system are "fixed coastal cells," also defined by Department rule: "Fixed Coastal Cell" is a geomorphological component of the coastal system which is closely linked internally by active physical processes and is bounded by physical features which exercise a major control on refraction patterns or which compartmentalize or severely limit longshore sediment such as headlands or inlets. Fla. Admin. Code R. 62B-33.002(24). Within and adjacent to a fixed coastal cell of Florida's coastal system lie sea, shore, beach, dune system, vegetation, uplands and structures with which this proceeding is concerned. The Beach and Dune System within the Fixed Coastal Cell The Ray property and the Pope property are located in a fixed coastal cell that extends from Canaveral Inlet (north of R014, one of a series of coastal monuments installed by the state) southward to Monument R050. The community in which the property is situated is a "Coastal Uplands: Beach Dune" community characterized by a beach and dune system. There is one primary/frontal dune with a height at the top of the bank of about 13.4 feet NGVD seaward of the proposed project. The portion of property on which the project is sited is between 7.3 and 10.7 feet NGVD. The most recent DEP design wave height elevation for R015 is 14.2 feet NGVD, higher than the existing dune elevation at the Ray property. Much of the Ray property behind the dune is lower in elevation than the elevation of contiguous properties, the likely result of persistent cutting of native vegetation that acts to intercept wind-blown sand as it moves along the shoreline. Beach and Dune Data in DEP File BE-1083 In the application review process, Mr. Tammisetti submitted a memorandum dated May 24, 2001, to Mr. McNeal. The memorandum appears to have been a form with blanks into which information was inserted or handwritten close to the appropriate blank. For example, under Section I., of the form "PROPOSED PROJECT" is "A. Project Location:", followed by a description with blanks left for number of feet, direction (north, south, east, west) reference monument number, county and project address. Handwriting close to the blanks leads one to understand or gather that it intends to communicate the following statements: The location of this project is approximately 100 feet N to 103 feet S of the Department of Environmental Protection's Reference Monument R-15, in Brevard County. Project Address: Harding Ave, Cape Canaveral. This is within the local jurisdiction of Brevard County. Respondents 1, Vol. 2, Tab 13. The form also contains Section II., "CHARACTERIZATION OF BEACH/DUNE SYSTEM". The section calls for three categories of characterization: A., a general description; B., beach topography in terms of shoreline alignment, berm width in feet, berm elevation in feet (NGVD), direction of net littoral transport, volume of net littoral transport in cubic yards per year, and general conditions; and C., Primary Dune/Bluff Topography with dune width in feet. None of the information called for by this section has been filled in on the form. At hearing, Mr. Tammisetti testified2 that berm width was 220 feet and the berm elevation ranged from 3 to 10 feet NGVD. He testified that the direction of littoral transport was north to south but he did not know the volume of net littoral transport. He stated that the "general site condition" was an eroding shoreline. He estimated the dune width at between 30 to 40 feet. These facts and figures exist under an overarching consideration. The beach near R015 that fronts the Pope and Ray property is critically eroding.3 Vegetation on the Ray Property There is a sea grape cluster and numerous palm trees on the Ray property. The seaward most continuous line of native salt-resistant vegetation or the "vegetation line" is near the line at the toe of the slope of the dune bank depicted on the topographic survey drawing submitted as part of the application. Nanette Church, at the time an employee of Brevard County, visited the site on July 1, 2003. She documented the presence of fresh sod and a new irrigation system installed seaward of the County's coastal setback line, a line parallel to and 25-feet landward of the 1981 CCCL. Two days later, DEP Inspector Gene Verano conducted a site inspection and documented the placement of sod and the installation of an extensive irrigation system. On July 31, 2003, the Department under the signature of Jim Martinello, an Environmental Manager in the Bureau of Beaches and Wetland Resources, issued a warning letter to Mr. Ray with regard to "POSSIBLE UNAUTHORIZED ACTIVITIES SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE." The letter reads, in part, Pope 3. [I]t appears that you have again been engaged in unauthorized activities on your property located approximately 100 feet north to 100 feet south of the Department of Environmental Protection's reference monument R-15, in Cocoa Beach, in Brevard County, Florida. The possible violation consists of the destruction/removal of native vegetation and placement of sod and an irrigation system seaward of the coastal construction control line without benefit of a permit from the [department.] The sod seaward of the CCCL has a negative effect on the stability of the dune system. A weakened dune system allows for storm surge and overwash to breach the dune and cause washout on the landward side of the dunes. Brevard County has not yet issued a land clearing or landscape permit to the Rays. A "Brevard County Land Development Site-Plan Approval" with an approval date of December 30, 2003, warned, "[i]t is the responsibility of the Owner/Engineer of Record to contact Office Natural Resources for a Land Clearing/Landscaping Permit." Respondents' 1, Vol. 1, Tab 12. The Rays are not contesting County or DEP enforcement actions relative to the land clearing, sod placement, and irrigation system installation. Project Description The project proposed by the Rays is to be located on their property in the unincorporated area of Brevard County known as "Avon-by-the-Sea," in the vicinity of Department monument R-015. The project is known by Brevard County as the Ray Condos and also as the Michelina Condominium. The location of the multi-family dwelling relative to the Control Line is "[a] maximum of 105.56 feet seaward." Id. Its exterior dimensions are "209.67 feet in the shore normal direction by 84 feet in the shore-parallel direction." Id. The type of foundation is "Pile." Id. There is no mention in the Permit of the height of the building. The swimming pool is described in the Permit in detail with regard to its dimensions and location (a maximum of 101.49 feet seaward of the control line), the type of construction and its maximum depth: six feet. Excavation/Fill for the project is described in terms of volume of excavation, its location, volume of fill as replacement, and location of fill. The Excavation/Fill description is subject to Special Permit Condition 6. Among other provisions of the condition, the fill is to be "from a source landward of the control line and shall consist of sand which is similar to that already on the site in both grain size and coloration." Id., p. 4. Other permitted structures and activities are listed and described in the Permit with reference to special permit conditions: A wooden beach/dune walkway structure of dimensions 174 feet shore-normal by 4 feet shore-parallel is to be located seaward of the control line. See Special Condition 7. A 4-foot to 14-foot swimming pool deck attached to the periphery of the swimming pool is to be located a maximum of 105.96 [feet] seaward of the control line. See Special Permit Condition 2.1. Paver-block parking area on the south side of the proposed dwelling. Masonry walls along the north and south property lines to extend a maximum of 105 feet seaward of the control line. See Special Permit Condition 2.2. An exfiltration system trench on the south side of the proposed dwelling. Among nine special conditions in the Permit are that no work can be conducted until a DEP "notice to proceed" has been received by the Rays. Another is that prior to the issuance of such a notice "two copies of detailed final site and grading plans and specifications" shall be submitted including two sets of landscape drawings. Id., p. 3, Special Permit Condition 2. See id., 2.3. The landscape plan must be submitted to Brevard County for approval under the Permit's special conditions. Given Brevard County's requirement that the Rays secure a Land Clearing/Landscaping Permit, there will be an ongoing process that poses the potential to ensure that the Rays' project will be designed to minimize the impact on native vegetation. The process also may require a restoration plan, as well, for the impact to native vegetation caused by the sod and the irrigation system. The Rays have submitted such a plan to the County. Relationship of the Proposed Project to the Pope Property The proposed multi-family dwelling is sited 10 feet south of the northern property line (the line that serves as the southern boundary of the Pope property). Ten feet is the minimum setback from adjacent property allowed by the county. The duplexes on the Pope property are situated in a range from 3.5 to 4.5 feet from the property line (the border with the Ray property.) The project, therefore, is proposed to be as close as 13.5 feet of the Pope duplexes. If built, running the length of the duplexes, it would create a relatively narrow space between the proposed structure and the Popes' duplexes that ranges from 13.5 feet to 14.5 in width. The Application The Rays submitted their CCCL permit application to the Department through their agent, Joyce Gumpher. On January 24, 2003, Ms. Gumpher executed a certification "that all information submitted with this application is true and complete to the best of [her] knowledge." Respondents Ex. 6, APPLICATION FOR A PERMIT FOR CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE OR FIFTY-FOOT SETBACK. The application was received by DEP on January 27, 2003. Additional information was requested by the Department. On April 21, 2003, the Department deemed the application complete. During the application process, several plan sheets were revised. Revised plan sheets were submitted after the application was deemed complete (see Respondents' Ex. 6, July 29, 2003 plans and September 5, 2003 plans) and once prior to DEP's determination of its completeness. (see id., April 7, 2003 plans). Review of the Application On August 26, 2003, Mr. Tammisetti submitted a memorandum to Mr. McNeal that recommended approval of the application with special permit conditions. The memorandum, similar in form to the memorandum submitted on May 24, 2001, except for the lack of Part II., is entitled "Description of Beach and Dune System Fronting the Subject Property and an Analysis of Impacts to be Expected From the Proposed Construction." Respondents 1, Vol. 2, Tab 20. It describes the proposed project but, lacking Part II., it neither characterizes nor describes the beach/dune system. Nor does it analyze the impacts of the proposed project other than to provide the "final comment" that "[t]he proposed project is landward of line of construction and 30-year erosion project. Impactive shore- parallel coverage is approximately 72%." Id., p. 3. Under its rules, after reviewing all information required, the Department is mandated to: Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effect of the construction on the coastal system and marine turtles. * * * Require siting and design criteria that minimize adverse impacts and mitigation of adverse or other impacts. Fla. Admin. Code R. 62B-33.005(3). As found earlier, the file in BE-1083 does not contain any documentation that the Department conducted the impact assessments required by the rule. Nonetheless, the Department based its evaluation on the portion of the fixed coastal cell from just north of R013 to approximately 400 feet south of R017 depicted on Respondents' 7. Respondents' 7 Respondents' 7 is an aerial photograph of developed uplands and off shore waters of the Atlantic Ocean in between which is the shore line and a stretch of beach in Brevard County. The sandy beach in the photo runs from north to south from Monument R013 to approximately 400 feet south of Monument R017, five monuments in a series set by the state along the Brevard County coast. The photograph is data the Department reviewed to determine if existing structures established a "reasonably continuous and uniform construction line closer to the mean high water line than [the coastal construction control Line]." § 161.053(5)(b), Fla. Stat. (This "reasonably continuous and uniform construction line" will be referred to as the "Construction Line" in this order.) The Pope property and the Ray property both straddle the Construction Line. The photograph shows four structures (the "Four Structures") that were determined by DEP to establish the Construction Line. Two are to the north of the Ray property; two are to the south. Of the two structures to the north, the closest is between 400 and 450 feet north of the northern boundary of the Ray property. It sits between Monument R015 and R014. The other structure to the north used to establish the Construction Line lies between Monument R014 and R013. Its southernmost corner is approximately 1200 feet to the north of the northern boundary of the Ray property. The roof of the closest of the Four Structures to the south, lying between Monument R015 and R016, viewed from the air above is rectangular indicating the structure to have a rectangular footprint. Positioned at an angle to the coast, its southeastern corner is along the 1981 CCCL. That corner is approximately 400 feet south of the southern boundary of the Ray property. The second structure to the south sits between R016 and R017. Its northernmost corner is roughly 850 feet south of the southern boundary of the Ray property. The Application Rule Florida Administrative Code Rule 62B-33.008(4), entitled "Permit Application Requirements and Procedures" (the "Application Rule"), requires that the Rays' application contain certain specific information, including that identified in subsection (f): Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of the application. The rule further calls for the topographic survey drawing to include specific information such as "[t]he location of any existing vegetation line on the subject property." Fla. Admin. Code R. 62B-33.008(4)(f)9. The topographic survey drawing submitted as part of the application in January of 2003 reveals a survey date of "7/17/02." Respondent's Ex. 1, Sketch of Boundary and Topographic Survey, Lots 12-15, Block 101, Avon by the Sea, Brevard County, Florida. Other than the date of the survey, the evidence at hearing did not reveal when the fieldwork in support of the survey was conducted.4 In all likelihood the fieldwork was conducted close to July 17, 2002, but obviously prior to July 17, 2002. Whether the date of the application is considered to be the date of Ms. Gumpher's certification (January 24, 2003), or the date of its receipt by DEP (January 27, 2003), it does not depict "field survey work performed not more than six months prior to the date of the application." January 24, 2003, is six months and one week after July 17, 2002. January 27, 2003, is six months and 10 days after the date of the survey. The Vegetation Line The topographic survey drawing submitted as part of the application did not meet precisely the requirements of the Application Rule in several other ways. For one, it did not label the location of "any existing vegetation line on the subject property." At hearing, the Rays submitted a revised copy of the topographic survey drawing (still dated "7/17/02"). The revision labels a line indicated on the originally submitted topographic survey drawing as "TOE OF SLOPE" (within a few feet of the top of the dune bank) as "TOE OF SLOPE AND VEGETATION LINE." Thus, it is apparent that the originally submitted topographic survey drawing depicted the vegetation line; it merely failed in its labeling of the vegetation line. The Department, once it became aware of the omission of a reference to a vegetation line in the original submission, waived the requirement for one. At hearing, Mr. McNeal testified that the waiver was authorized by subsection (7) of the Application Requirements and Procedures Rule: The Department recognizes that the requirements specified in paragraphs 62B- 33.008(4). . . (f) . . ., F.A.C. may not, due to the project circumstances, be applicable or necessary to ensure protection to the beach and dune system. In such cases, the applicant shall, as part of the application, identify those requirements and state the reason why they are inapplicable. The Department shall waive requirements that do not apply. Fla. Admin. Code R. 62B-33.008(7). There is no evidence of record that the Rays informed DEP of a position that the "location of the vegetation line" on the topographic survey drawing was a requirement inapplicable or unnecessary to ensure protection to the beach and dune system.5 Nonetheless, construing its waiver authority to be broader than authority limited to cases in which identification of inapplicable and unnecessary requirements had been made by those seeking DEP waivers, the Department waived the requirement. The waiver was based on knowledge gained from the experience of DEP employees. The employees (Mr. Tammisetti and Mr. McNeal) knew that the vegetation line would be close to the top of the dune bank line and the toe of slope line, both of which were located on the topographic survey drawing.6 Respondents' 2 supports the Department's waiver since it labels the vegetation line where the Department roughly expected it to be. Complete Dimensions and Distance Perpendicular The Application Rule further demands that the topographic survey drawing contain: 15. Accurate dimensions and locations of the foundation outlines of any structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of Section 161.053(5)(b) or 161.052(2)(b), F.S., and the distance perpendicular [the "Distance Perpendicular"] from the CCCL or 50-foot setback to the seaward corners of the foundations of any major structures . . . . Fla. Admin. Code R. 62B-33.008(4)(f). The application contained the dimensions and locations of the two (2) duplexes located on the Pope property, that is, the adjacent area to the north of the Ray property. With regard to the adjacent area to the south of the Ray property, the application contained the seaward dimensions and locations of the major structure that makes up the Discovery Beach Resort structure. The topographic survey drawing did not contain the dimensions of the complete footprint of the Discovery Beach Resort. Nor did it contain the distance perpendicular from the CCCL or 50-foot setback to the seaward corners of the foundations of all major structures depicted. Mr. McNeal noticed that required elements were missing from the application. When he made the permitting decision, he waived them pursuant to a delegation of authority from the Office of Beaches and Coastal Systems. Delegations of Authority Office of Beaches and Coastal Systems The Director of the Office of Beaches and Coastal Systems has delegated certain authority to subordinates in the Office of Beaches and Coastal Systems with respect to the CCCL permitting program. The delegations, as reflected in a document entitled "Delegations of Authority, OFFICE OF BEACHES AND COASTAL SYSTEMS" (Pope Ex. 1), is to "the Director of Office of Beaches and Coastal Systems, or his/her designee." Id., 3.a. As the administrator of the CCCL program within the Bureau of Beaches and Wetlands Resources, Mr. McNeal has been delegated authority under Delegation "OBCS-9" (id., p. 14 of 24), to "[t]ake final agency action on permit applications . . . pursuant to Sections . . . 161.053 . . ., Florida Statutes, and Rule 62B-33, F.A.C., [subject to exceptions immaterial to this proceeding.]" Id. The authority so delegated is not without limitation. Among limitations enumerated and express in the Delegations of Authority document is that "[t]the exercise of any delegated authority shall conform with all statutes and rules applicable to the DEP." Id., 3.a. Waivers Pursuant to Delegated Authority Pursuant to the authority over final agency action on CCCL permit applications, Mr. McNeal, as the head of the CCCL Program in the Office of Beaches and Shores, waived the depiction of the location of the vegetation line on the topographic survey drawing, the full dimensions of the Discovery Resort in the adjacent area to the south of the Ray property and the notation of the Distances Perpendicular. He did so because the information contained on the topographic survey drawing was sufficient, in his view, to allow the Department to perform the calculations and analyses as part of the application process that would be served by a review of the topographic survey drawing. An example has been alluded to in this order. Based on years of collective experience, Mr. McNeal and Mr. Tammisetti concluded it was reasonable to assume the vegetation line would be very near the toe of the slope line in relation to the dune bank. Their assumptions were proved correct at hearing. The dimensions and locations of the major structures located immediately north and south of the proposed project (the Pope duplexes and the Discovery Resort structure) and the Distances Perpendicular were required to be included on the topographic survey drawing, but they were not intended by the Rays to establish a Construction Line. Establishment of any such line is governed by Section 161.053(5)(b), Florida Statutes: If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing [the CCCL], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department, if such structure is also approved by the department [and other conditions are met]. A Construction Line The Rays contend in their application and DEP agrees that the Four Structures establish a Construction Line. Once such a line is established provided the structures are not duly affected by erosion, the Department is conferred with the discretion to permit a proposed structure along the line seaward of the CCCL under certain circumstances. See § 161.053(5)(b), Fla. Stat. Among those circumstances, the permit "shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided [by statute.]" § 161.053(5)(b), Fla. Stat. Furthermore, by rule of the Department, written evidence from local government must be provided that the location of the proposed structure along a Construction Line seaward of the CCCL is consistent with the Local Comprehensive Plan. See Fla. Admin. Code R. 62b-33. Written evidence that Brevard County regards the Rays' proposed site to be consistent with Local Comprehensive Plan and not contrary to local setback requirements or zoning codes was provided by Brevard County to the Department. Establishment of a Construction Line Whether a Construction Line can be established for a proposed project is unique to the project and its coastal location. To establish such a line, the Office of Beaches and Coastal Systems may rely exclusively on information provided by the applicant for a permit to construct along such a line. The Office may also refer to its own database of aerial photographs (as it did in this case) and other data with regard to the State's coastal systems. The Construction Line running across the Ray property accepted by DEP is nearly identical to the 1981 CCCL. In contesting the establishment of the Construction Line, Mrs. Pope makes a number of points, several of which are worthy of discussion. For one, in 1993, the Department considered an administrative challenge brought by Mrs. Pope to the CCCL permit for the construction of the Days Inn Tower (now Best Western) hotel (one of the structures used by the Rays to establish a Line of Continuous Construction). See, OR-1, Pope v. Department of Environmental Protection et al., Agency Final Order dated May 9, 1994, DOAH Case No. 93-4560 (the "1993 Pope Case.) The Pope duplex had been found to be three or four blocks north of the property for which the permit was sought. If her property had been found immediately adjacent to the Days Inn Tower property, Mrs. Pope would have been accorded standing to contest issuance of the permit to the Days Inn Tower applicant. The hearing officer had recommended that Mrs. Pope not be accorded standing under the rule because her duplex property was not "immediately adjacent" to the Days Inn Tower parcel. Since Mrs. Pope's parcel was separated by at least what has been identified in this proceeding as the Ray property and the property of the Discovery Resort, she did not qualify for standing under the DEP Rule. Nevertheless, Mrs. Pope was afforded the opportunity to acquire standing by proving that her substantial interests would be affected by issuance of the permit. The hearing officer concluded that her attempt in this regard failed.7 The Department accepted the hearing officer's recommendation that Mrs. Pope be determined to have no standing, in part because her property was not "immediately adjacent" to the Days Inn Tower property. Mrs. Pope also asserts that the Four Structures along the 1981 CCCL do not establish a Construction Line on the basis of the testimony of her witness, Dr. Harris. Dr. Harris opined that the structures to be used to establish the Line of Continuous Construction, if one exists, are not the four used by DEP that are in the area of the Ray property but the structures on the two pieces of property closer to the Ray property, that is, immediately adjacent: the Pope property to the north and the Discovery Resort property to the south. The easternmost point of the structure on the Pope property is approximately 50 feet landward of the 1981 CCCL and extends approximately 100 feet seaward of the Control Line. The structure on the Discovery Resort property to the south is along the Control Line. See Respondents' 7. The line that Dr. Harris would establish does not run parallel to the shore line, the 30-year erosion line, the 1981 CCCL or the Control Line. It would run at an angle of approximately 15 degrees from the easternmost point of the Pope duplexes (the "point of beginning") about 425 feet to the easternmost point of the Discovery Resort structure. The point on the Discovery Resort structure (at the end of the line) is approximately 100 feet seaward of the point of beginning. If these structures are to be considered in the determination of whether a Construction Line exists as Mrs. Pope argues, then continuing the line to include the Four Structures would yield broken lines rather than a reasonably "uniform" and "continuous" line. The Department did not consider the structures in the property immediately adjacent to the Ray property to break the line it determined is established by the Four Structures. It ignored other structures as well between the northernmost and the southernmost of the four structures. Mrs. Pope, therefore, describes the Construction Line established by the Department as "imaginary" and without a factual basis. This point is one of opinion. The Construction Line is neither imaginary nor without a factual basis. It has a factual basis in precisely the data used by DEP: the aerial photograph that shows four major structures between Monuments R013 and R017, Respondents' 7, along the 1981 CCCL. The disregard for the Pope duplexes and the Discovery Resort structure as well as other structures in the areas north and south of the Ray property is a matter that falls within professional opinion and Department expertise. The establishment of the Construction Line is justified by the data DEP examined: Respondents' 7 (on which the Four Structures were identified and circled by Mr. Tammisetti at hearing.) The greater weight of the evidence is that DEP's determination of the establishment of the Construction Line should not be disturbed. It is, moreover, not surprising that such a line exists. One would expect that structures built after 1981 but before 1986 would be located along the 1981 CCCL and that structures that followed (such as the Discovery Resort structure) would be built along that Construction Line. Post-establishment of a Construction Line Establishment of a Construction Line does not entitle an applicant to a permit to build along that Construction Line. After a Construction Line is accepted by DEP as established, an applicant must satisfy three remaining sets of conditions expressed in Section 161.053(5)(b), Florida Statutes. Section 161.053(5)(b), Florida Statutes A discretionary exercise Once a Construction Line is established, an application for a permit to allow a proposed structure is subject to the discretion of the Department: "a proposed structure may, at the discretion of the department, be permitted along such line on the written authorization of the department, if such structure is also approved by the department." ii. Local Requirements The Department has no such discretion, however, if the construction or activity would "contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than . . . requirements [in chapter 161]." Id. To this list, the Department, by rule, has added consistency with state-approved Local Comprehensive Plans. See Fla. Admin. Code R. 62B- 33.008(4)(d). Before exercise of department discretion and inquiry into compliance with local requirements, there is a more fundamental condition that must be demonstrated by the applicant: the existing structures that establish the Construction Line must not have been unduly affected by erosion: If in the immediate contiguous or adjacent area a number of existing structures have established a [Construction Line], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line . . . [h]owever, the department shall not contravene [local requirements] . . . equal to, or more strict than, those requirements herein. § 161.053(5)(b), Fla. Stat. Unduly Affected by Erosion The parties differ in their view of the testimony and evidence introduced at hearing with regard to whether structures that establish the Construction Line "have not been unduly affected by erosion." Id. Neither DEP employees nor the Rays' witnesses visited the shoreline between R0-13 and R-017 to evaluate the four structures that establish the Construction Line and the effects of erosion, if any.8 Mrs. Pope asserts in her Proposed Recommended Order, "[n]o evidence or testimony was offered as to whether the structures considered by DEP were affected by erosion." Petitioners' Proposed Recommended Order, p. 24. In contrast, Respondents cite to the testimony of Mr. Boehning and Respondent's 7 with the assertion, "[t]he existing structures, which form the line of continuous construction, have not been unduly affected by erosion." Respondents' 7 supports the claim of Respondents. It reveals a distance perpendicular from the Construction Line to the dark, wet sand along the shore to be approximately 275 feet. This distance encompasses white sandy beach that is approximately 175 feet and a vegetated area that is approximately 100 feet. The finding that the structures that establish the Construction Line are not unduly affected by erosion does not mean that there are not erosion problems in the area. In fact, as found earlier in this order, the beach depicted on Respondents' 7 is "critically eroding." The stretch of beach depicted in the aerial photograph that is Respondents' 7 has undergone considerable fluctuation since 1963 through erosion and beach nourishment. From 1972 to 2002, for example, the location of the mean high water line at R-015, the monument closest to the Pope and Ray properties, has varied by 206 feet from a low in September of 1972 to a high of 369.3 feet in April of 2001. Dr. Harris wrote this in a report introduced into evidence: The beach profile data show that at R-15 the beach and dune are subject to erosion. From 1972 to 2002 the variation in the MHW shoreline position was 206 feet. Beach nourishment and inlet sand by-passing operations were performed between some of the time periods, and are largely responsible for the periodic beach and dune widening. Even with the beach nourishment project, dune erosion continues to be a problem, and although the recent beach nourishment project greatly widened the beach, the position of the dune remained the same. The FDEP design wave height elevation for a 100-year storm is 14.2 feet NGVD for R-15, which is higher than the existing dune elevation. This means that the upland properties would experience storm surge, flooding and wave action during a 100-year storm. Pope 16. Projects of beach nourishment (placement of sand through human activity) were performed in 1972, 1986 and 2001. The need for beach nourishment and re-nourishment reinforces the status of the beach near R-015 as "critically eroding" and underscores the importance of protecting as much of the dune system as possible. That the beach is critically eroding is not inconsistent with a finding that the structures that establish the Construction Line are not unduly affected by erosion. Whether or not due to the 1986 and 2001 nourishment projects, the evidence of record is that, despite the status of the beach as critically eroding, the structures that establish the Construction Line are not unduly affected by erosion. Not Contrary to Local Requirements On December 30, 2002, a site-plan approval was issued by Brevard County with regard to "RAY CONDOS aka MICHELINA CONDOMINIUM" with a site address of "420 Harding Avenue, Cocoa Beach, FL 32931." Respondents' 1, Vol. 1, Tab 12, second page. Signed by the designee of the Director, Permitting and Enforcement, the development order is entitled, "BREVARD COUNTY LAND DEVELOPMENT SITE-PLAN APPROVAL" and contains the following: The site plan to which this approval is attached has been reviewed by affected County divisions, departments and agencies and has been determined to comply in general with the Brevard County Code of Ordinances and Comprehensive Plan Elements. * * * It is the responsibility of the Owner/Engineer of Record to contact Office of Natural Resources for a Land Clearing/landscaping Permit Two (2) sets of As-Built drawings must be provided to Land Development prior to the Issuance of a C.O. Id. The development order concludes with a statement related to the vested right of the Rays to develop in accord with the site plan: If a Certificate of Occupancy has not been issued for the principal structure by Dec. 30, 2005 the three (3) year vesting period, beginning with the date of site development plan approval, expires and said site plan shall become Null and Void. Only those phases of the development that have an active and valid building permit may be completed after the three-(3) year time period. Id. The reference in the site-plan approval to the "Brevard County Code of Ordinances" does not include building codes. The reference covers local setback requirements and zoning codes. Mrs. Pope appealed the issuance of the site-plan approval to the Brevard County Board of County Commissioners (the "Board"). Her appeal was heard over three meetings of the Board on May 6, 2003, June 8, 2003, and August 12, 2003. At the conclusion of the August 12, 2003, proceedings on the appeal, the Board voted unanimously to accept the staff recommendation to deny the appeal. An unnumbered resolution of the Board "DENYING THE APPEAL OF JAMES AND CAROLE POPE . . . PERTAINING TO THE MICHELINA CONDOMINIUM SITE PLAN" was produced by Mrs. Pope at the hearing together with the following statement of a Deputy Clerk for the Board: This is to advise that the Office of the Clerk to the Board of County Commissioners does not have any correspondence indicating a copy of the Findings of Fact on Michelina Condominium was forwarded to Mr. or Mrs. Pope. Pope 7. The resolution is signed by the Chairperson of the Board. Immediately below the signature block there appears the following: "(As approved by the Board on August 12, 2003)." Pope 8. The document is not stamped received by the Clerk of the Board or the County Clerk's Office, nor is there other clear indicia that the order has been rendered through a filing with the Clerk's office. On its face, however, appears an undated attestation of a deputy clerk under a seal of Brevard County that appears to attest to the Chairperson's signature. As of the dates of the final hearing in this proceeding, Mrs. Pope had not sought judicial review of the decision of the Board. At hearing, on the strength of the signed resolution denying Mrs. Pope's appeal of the site-plan approval and the site-plan approval, itself, and the apparent finality of the approval, Mrs. Pope was ruled estopped from presenting evidence that the Permit contravened local setback or zoning requirements or was inconsistent with the Local Comprehensive Plan. The establishment of a Construction Line, that the structures establishing the line are not unduly affected by erosion, and the collateral estoppel of Mrs. Pope's claim that construction or activity seaward of the Control Line along the Construction Line is contrary to local requirements, clears the way for the exercise of Department discretion as to whether to issue the permit. Department Discretion The Department's exercise of discretion must, of course, take into consideration the beach and dune system within the fixed coastal cell in which Ray property and the Pope property are located. No other conclusion could be gathered from the statements of legislative intent and the statutory scheme. Lest there be any misunderstanding, the Department has codified its policy statement on such matters: (1) The beach and dune system is an integral part of the coastal system and represents one of the most valuable natural resources in Florida, providing protection to adjacent upland properties, recreational areas, and habitat for wildlife. A coastal construction control line (CCCL) is intended to define that portion of the beach and dune system which is subject to severe fluctuations caused by a 100-year storm surge, storm waves, or other forces such as wind, wave, or water level changes. These fluctuations are a necessary part of the natural functioning of the coastal system and are essential to post-storm recovery, long term stability, and the preservation of the beach and dune system. However, imprudent human activities can adversely interfere with these natural processes and alter the integrity and functioning of the beach and dune system. The control line and 50-foot setback call attention to the special hazards and impacts associated with the use of such property, but do not preclude all development or alteration of coastal property seaward of such line; Fla. Admin. Code R. 62B-33.005, Department Policy Statement on Permits. The exercise of this discretion is guided by criteria under rule. Among those criteria are those found in 62B- 33.005(4)(g): The construction will not cause a significant adverse impact to marine turtles, immediately adjacent properties, or the coastal system unless otherwise specifically authorized in this rule chapter. Chapter 62B-33, Florida Administrative Code, defines the term "Impacts" to include separate definitions for the terms "Adverse Impacts," "Significant Adverse Impacts," "Minor Impacts," and "Other Impacts": "Impacts" are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows: "Adverse Impacts" are impacts to the coastal system that may cause a measurable interference with the natural functioning of the system. "Significant Adverse Impacts" are impacts of such magnitude that they may: Alter the coastal system by: Measurably affecting the existing shoreline change rate; Significantly interfering with its ability to recover from a coastal storm; Disturbing topography or vegetation such that the system becomes unstable or suffers catastrophic failure; . . . * * * (d) "Other Impacts" are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access. Fla. Admin. Code R. 62B-33.002(30). Minimization of Impacts and No Significant Adverse Impacts The site selected on the Ray property for the proposed project poses impacts to Mrs. Pope's duplexes during a storm event such as a 100-year storm. Because of the shore- parallel dimension of the proposed structure (84 feet), storm- generated waves and storm surge would be concentrated into the relatively narrow gap between the proposed structure and the duplexes. The resulting hydrodynamic load would cause scouring of the foundations of the duplexes. The proposed project has "frangible" or "breakaway" ground level walls. They would pose the potential for generating waterborne missiles that, hydro-dynamically propelled, would damage the duplexes. The proposed project was designed in accordance with the American Society of Civil Engineers 7 Code ("ASCE-7") and most pertinently (since referenced in the Construction Line Statute), the Florida Building Code. But the Building Code does not take into consideration a proposed structure's design or proposed site on an adjacent property or the adjacent property's structures. The proposed project, moreover, is not designed and sited to mitigate aerodynamic loading on Mrs. Pope's duplexes. During high-wind conditions, there will be a number of wind effects on the duplexes caused by the proximity of the proposed project: gust loading, high turbulence shedding, and vortex shedding among others that can be reasonably expected to cause structural impacts to the duplexes such as suction loads on roofs and eaves, flying debris and window breakage. The proximity of the proposed structure to the Pope property will have a shading effect that will cause adverse impacts on the growth of native coastal vegetation on the Pope property. As a result, there will be a reduction in the interception of wind-driven sand by the vegetation that enables it to develop healthy, deep root systems that add to dune stability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: an impacts assessment be conducted as required by Florida Administrative Code Rule 33.005(3)(a); that the proposed project be re-sited to mitigate the impacts that its siting now poses to the Pope Property and the Popes' duplexes; that the proposed project be permitted to be constructed up to the Construction Line, provided that the permit is supported by both the impacts assessment and a re- siting of the proposed project to mitigate wind, water and shading impacts; and if the proposed project is not supported by an adequate impacts assessment, or if it cannot be re-sited to mitigate the impacts to the Pope Property, that the permit be denied. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2004.
The Issue The issue is whether, pursuant to Section 161.053, Florida Statutes, and Rule 62B-33.005, Florida Administrative Code, Petitioners are entitled to a coastal construction control line permit to build a single-family residence in Volusia County with a structural elevation of 19 feet National Geodetic Vertical Datum, not 24 feet National Geodetic Vertical Datum, as required by Respondent.
Findings Of Fact Petitioners own an undeveloped lot located at 4279 South Atlantic Avenue in the Wilbur-by-the-Sea subdivision in unincorporated Volusia County. Mr. Humphries' family has owned the lot for 50 years. The rectangular lot is 210 feet deep and 50 feet wide. The narrower end abuts the Atlantic Ocean on the east and South Atlantic Avenue on the west. The south boundary of Petitioners' lot abuts a developed lot. The house located on this lot has a finished- floor elevation of 26.15 feet National Geodetic Vertical Datum (NGVD). This is consistent with the structural elevations of most of the residences in the immediate vicinity of Petitioners' lot. Even though the seaward extent of Petitioner's proposed structure is roughly in a line with the seaward extent of the nearby homes, the issue in this case is the structural elevation. The north boundary of Petitioners' lot abuts the 50- foot-wide right-of-way of Major Street. In 1984, a wooden walkway was constructed in the southern half of the Major Street right-of-way to allow pedestrians access to the beach. By that time, Major Street was no longer open for vehicular access. However, the construction and maintenance of Major Street may have contributed to the lower elevations on the north boundary of Petitioners' lot, as described below. Nearly all of the lots in the vicinity of Petitioners' lot have been developed; most, if not all, of them contain single-family residences. Petitioners, who are nearing retirement, wish to construct a house that would accommodate them in their later years when they expect their mobility to be reduced. Petitioners' house will sit atop a prominent secondary dune, as do all of the other oceanfront homes in the immediate vicinity. The house will also be confined roughly to the landward half of the lot. These factors mean that the relatively short driveway leading from South Atlantic Avenue to the garage will be relatively steep. Petitioners proposed a reduction in the top of the dune to reduce the steepness of the driveway and the difference in finished-floor elevations between the garage and the house. Generally, the south side of Petitioners' lot is higher than the north side. The seasonal high water line is 8.4 feet NGVD. The lot's east boundary, which is 7-8 feet landward of the seasonal high water line, is about 11.5 feet NGVD. The elevation of the south boundary rises to 28.5 feet NGVD, at a distance slightly east of the most seaward extent of the 10-foot wooden deck that is the most seaward structure proposed by Petitioners. The elevation of the north boundary does not rise much; over the same distance, it reaches only 12 feet NGVD. Proceeding westward, toward South Atlantic Avenue, the south boundary drops from its 28.5-foot elevation. Parallel to the proposed house, the boundary remains at about 25 feet NGVD, except it drops to about 20 feet at the point where the house would meet the garage. For the length of the 26-foot garage, the south boundary drops to 18.5 feet NGVD. For the length of the 30-foot section of driveway between the garage and the west boundary, the south boundary drops from 18 feet NGVD to 17 feet NGVD. The north boundary rises to its highest point, 20.6 feet NGVD, at a point just landward of the point along the boundary closest to the junction between the proposed wood deck and the house. Running parallel to the proposed house, the north boundary drops to about 18 feet NGVD (directly across from a point along the south boundary that reaches about 25 feet NGVD) and then to about 17.5 feet NGVD, at a point just landward of the point closest to the junction of the proposed house and garage. The proposed house would occupy elevations, prior to proposed site preparation, of about 28 feet NGVD at the seaward side, 22-26 feet NGVD at the midpoint, and no more than 21 feet NGVD at the landward side. The proposed deck, house, and all but a sliver of the garage lie seaward of the coastal construction control line. The northeast corner of the proposed house is 72 feet seaward of the coastal construction control line. The dune is largely vegetated. The vegetation includes sea oats, shrubs, and some palm trees, although Brazilian pepper, a nuisance exotic, also vegetates part of the dune. Just seaward of the southeast corner of the proposed deck is a hole, perhaps from past excavation, about ten feet deep and occupying 8-10 percent of the lot. This is the only portion of the lot significantly below-grade. Overall, the dune is functional and healthy. To the extent that it has been disturbed in the past, the dune seems to be recovering vigorously. On or about July 21, 1999, Petitioners applied for a permit to construct a residence seaward of the coastal construction control line. In their application, Petitioners proposed a structural elevation of 19 feet NGVD. The structural elevation, which is about two feet lower than the finished-floor elevation, is the lowest portion of the effectively horizontal structural elements supporting the floors and walls of the structure. Respondent's examination of the application raised concerns about the proposed structural elevation of 19 feet NGVD. The greater elevation of much of the dune under the footprint of the house would necessitate the relocation of dune materials on the lot or removal of dune materials off the lot. However, discussions between Respondent's representative and Mr. Bullard, Petitioners' engineer, failed to identify design modifications upon which both sides could agree. Thus, on June 5, 2000, Respondent issued a Final Order and Notice to Proceed Withheld (Final Order). The Final Order states that Respondent found that Petitioners' application was complete on March 6, 2000. Although the Final Order generally contemplates that construction will eventually proceed, Special Permit Condition 1 prohibits construction until Respondent issued a written notice to proceed. Special Permit Condition 2 warns that Respondent will not issue a notice to proceed until Petitioners submit plans that raise the structural elevation to 24 feet NGVD, relocate all excavated materials seaward of the coastal construction control line (but not more than 120 feet seaward of the line), prohibit net excavation seaward of the coastal construction control line, and specify the planting of all filled or disturbed areas with salt-resistant native vegetation transplanted from onsite areas that will be excavated and other sources, as needed. Special Permit Condition 7 requires Petitioners to obtain the fill material from a source landward of the coastal construction control line. The fill material also must be of a sand that is similar to that onsite in terms of grain size and coloration. However, nothing in the Final Order specifies any requirement to replicate present--or design scientifically verified new--seaward and landward slopes of the portion of the impacted dune. In resisting Respondent's demand to raise the structural elevation, Petitioners have sought to reduce the slope of their driveway, which involves traffic-safety issues in turning on and off busy South Atlantic Avenue, and eliminate the need for an extensive design modification to allow wheelchair- bound persons access to the house from the garage. At the hearing, Petitioners offered mitigation in the form of an artificial dune to be constructed seaward of the residence with excavated materials. However, this proposal would destroy existing vegetation and failed to specify slopes, so that the artificial dune would likely suffer significant and rapid erosion. Petitioners have failed to prove that their proposed construction activities, with a structural elevation of 19 feet NGVD, would not adversely impact the most prominent dune landward of the ocean, so as to reduce the existing ability of this dune to resist erosion and protect upland persons and property.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing Petitioners' challenge and issuing the Final Order and Notice to Proceed Withheld dated June 5, 2000. DONE AND ENTERED this 7th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of November, 2001. COPIES FURNISHED: David P. Struhs, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Robert R. Bullard, P.E. Qualified Representative Absolute Engineering Group Post Office Box 269 Daytona Beach, Florida 32115 Francine M. Ffolkes Senior Assistant General Counsel Timothy E. Dennis Certified Legal Intern Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether a beach house petitioners plan to build in south Walton County was already under construction, within the meaning of Section 161.053(7), Florida Statutes (1981) and Rule 16B-33.04(1), Florida Administrative Code, at the time the current coastal construction control line took effect there.
Findings Of Fact In October of 1982, the petitioners acquired a lot in south Walton County, on the north shore of the Gulf of Mexico. Even before the purchase, Mr. Wiese had been in touch with respondent's personnel, who apprised him of the imminence of the adoption of the new (now current) coastal construction control line, at that time already proposed for Walton County. The former coastal construction control line was considerably seaward of the current line, which became effective on December 29, 1982. Petitioners, who have built some seven houses, drew plans for a house to be built on their Walton County lot one foot landward of the old coastal construction control line. They applied for and obtained the necessary county building permit. They contracted for grading on site, which took place on November 27, 1982. In the course of this work, the landward face of the sand dune was disturbed and petitioners realized that, if they were to build so close to the water, a wall or something like a wall would have to be erected and buttressed to keep the sand dune from migrating under or into their beach house. They determined that the plans were inadequate as drawn. Mr. Wiese nevertheless arranged for one Al Christopher to bring two poles to the site and place one of them upright in the sand. When asked at hearing how long the two poles Mr. Christopher delivered to the site were, Mr. Wiese said he did not know. After Mr. Christopher began, petitioners did not ask him to desist either with bringing pilings to the site or with placing them in the ground. Mr. Christopher evidently did what he was asked to do, before he ever began working with the poles. Before the single pile was placed, batter boards were used to locate the perimeters planned for the building. Batter boards are temporary markers which are removed once the foundation is in place. In constructing piling foundations for beach houses along the gulf coast, in this part of Florida if not elsewhere, the ordinary sequence is to bring all foundation piles to the site before bringing the equipment necessary to install all the piles at once. This makes for efficient use of expensive machinery, and is virtually always done. One of the Wieses' neighbors, fearing that the new coastal construction control line would take effect last fall arranged for a single pile to be driven, but his project was well underway by the time the new coastal construction control line did in fact take effect. As late as March of this year, Mr. Wiese checked with a Texas supplier to see if foundation piles would be available for the project. The plans drawn before the grading of November 27, 1982, called for a foundation of 37 piles, each of which was to be 45 feet long. No horizontal members nor bracing of any kind was contemplated for the foundation. The foundation piles were to be put so close together that it would have been impractical to bring heavy equipment in to do the grading after they were in place. The idea in leveling the ground was to prepare it so a concrete slab could be poured to serve as a parking surface underneath the beach house. Under both the plans originally drawn and the plans under which petitioners now hope to proceed the parking surface itself is not expected to have a structural function, Mr. Wiese's testimony to the contrary notwithstanding. Once petitioners were persuaded that the project needed "reengineering," they diligently sought out expert assistance and new foundation plans were eventually drawn to their satisfaction. Petitioners' efforts took place on a regular, if not a daily basis, but consisted in large part of finding the right people for the "reengineering" job. The plans which petitioners propose to use were stamped with the final engineer's seal on March 3, 1983, more than two months after the current coastal construction control line took effect.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioners' beach house project grandfathered status, and apply the coastal construction control line adopted for Walton County on December 29, 1982, in any agency action regarding the project. DONE and ENTERED this 22nd day of August, 1983, Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August 1983. COPIES FURNISHED: Joseph C. Jacobs, Esquire John C. Pelham, Esquire and Melissa Fletcher Allaman, Esquire ERVIN, VARN, ODOM & KITCHEN Post Office Box 1770 Tallahassee, Florida 32322-1170 Deborah A. Getzoff, Esquire Suite 1003 Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Executive Suite 3900 Commonwealth Building Tallahassee, Florida 32303
Findings Of Fact On February 10, 1988 Harry B. Williams made application to the Department of Natural Resources for permission to construct a single-family dwelling with appurtenant structures at 2831 Ponte Verda Boulevard South, South Ponte Verda Beach, Florida. The permit sought was a coastal construction control line permit which would allow construction seaward of that line in the direction of the Atlantic Ocean. A copy of that permit application may be found as Department's Exhibit Number 2. Associated with the permit application was a description of the plans related to the dwelling and other structures. This application was received by the Department February 11, 1988. Following a review of the permit application the Department deemed it complete as of February 22, 1988. A site inspection was made of the property and a report was prepared by an employee with the Department, a Mr. Partel. The report may be found as Department's Exhibit Number 4, which includes photographs of the prospective building site, together with the surrounding property to include dwellings to the north and south of the lot where the Williams home would be built. As commented on by Mr. Partel the applicant had intended at that time to construct a single-family dwelling a maximum of 75 feet seaward of the coastal construction control line. Although this evaluator, Mr. Partel, felt that the applicant had requested the right to construct a dwelling which was in line with existing construction, he felt that it could be moved further landward and that it could be limited in deck size and that a cantilevened form of construction was preferable to the concrete called for in the plans set out in the application information. It was also suggested that the sea oats that were in the way of the construction should be relocated seaward on a dune face slope where a denuded area is found. In this connection, the Department is empowered to make suggestions to the applicant concerning the minimization of the adverse impacts on the beach-dune system. Following the site visit of February 26, 1988 the Department wrote the applicant on March 11, 1988 and indicated concerns about the proximity of the dwelling to the crest of the dune. A copy of this correspondence may be found as Department's Exhibit Number 5. In the correspondence the Department asked the applicant to move the proposed dwelling 10 feet landward and that the 10 foot wide concrete patio, on the seaward side, be modified to a 10 foot wide wooden deck. The letter told the applicant that the approval would be conditioned on the sea oats and other dune grasses that would be disturbed by the proposed structures being replanted seaward of the project in the denuded areas of the dune. The applicant agreed to these changes. The relocation of the structure 10 feet landward took it away from the beach- dune system. The modified site plan that was brought about by the suggested changes is found Department's Exhibit Number 6, a copy of that amended site plan. With the relocation the construction would be 66 feet seaward of the coastal construction control line. An aerial photograph of the site location reference the basic design of the dwelling and the proximity to the relevant or existing coastal construction control line is found as Department's Exhibit Number 3. In responding to the suggestions to the change in location the modified site plan which moved the dwelling 10 feet landward was received by the Department on August 1, 1988. Under this arrangement the applicant had agreed to waive the requirements of Section 120.60, Florida Statutes pertaining to the obligation by the Department to review and decide its action of grant or denial within 90 days of date of receipt of the application. With the changes being made to the location of the proposed dwelling and associated structures and the type of construction materials used in the patio on the seaward side, together with the relocation of the plant life, the impact on the beach-dune system and adjacent property is acceptable. There is no adverse impact on the beach-dune system or on the adjacent properties. The location of the proposed dwelling and its associated structures as it relates to the 30-year erosion projection under the terms of Section 161.053, Florida Statutes, in this instance, shows that the dwelling would be approximately 55 feet landward of the 30-year erosion projection and not at risk. Calculations related to this finding may be found within Department's Exhibit Number 7. The existing coastal construction control line dates from January 28, 1988. Although the original application referred to the previous line of 1978 in describing the site plan and survey, the reason for this was that the site plan and survey were prepared prior to the establishment of the January 28, 1988 line, as allowed. In the course of the hearing appropriate reference was made to the January 28, 1988 line as it relates to the anticipated location of the dwelling and other structures as modified at the instigation of the Department. As contemplated by Section 161.053(5)(f), the Department required the applicant to provide mitigation of the- effects of the construction as a condition to a grant of the permit. Those permit conditions may be found in the Department's Exhibit Number 8, a copy of a proposed final order. Included within those would be the requirements for erection of a temporary construction fence on the site to protect existing native dune vegetation from the impacts of that construction, in addition to the requirement of the dune vegetation relocation. This would involve the irrigation and application of fertilizer to those plants with the expectation that a certain percentage would survive over time as described in this special condition. This project will not pose a hazard to the sea turtle and its hatchlings and habitat for the sea turtles and hatchlings. Ms. Butler, Petitioner in this cause, has a beach home which is north of the Williams property separated by a 10 foot easement between those properties. In mid July, 1988 Ms. Butler offered a written statement in opposition to the placement and size of the proposed dwelling together with other remarks and asked that the Department provide her information and documents pertaining to the application under the authority of Chapter 119, Florida Statutes. On August 10, 1988 the Department dispatched a letter of inquiry to surrounding property owners to include Ms. Butler and solicited remarks concerning the Williams application to be provided on or about August 20, 1988. Ms. Butler had received certain documents from the Department concerning the application sometime in the middle of August 1988. On August 18, 1988 Butler made known her objection to the project on the grounds that the concerns about the 30-year erosion line and the size and placement of the dwelling. On September 2, 1988 the Department informed Ms. Butler of the intent to grant the permit to Mr. Williams. A copy of that correspondence may be found as Petitioner's Exhibit Number 5. This led to a timely request for hearing by Ms. Butler stating her opposition to this project. The request was received in accordance with the Department's advice that the request must be filed by September 26, 1988. Based upon the prehearing conference and the discussion of those issues which would be allowed for consideration as stated in the request for hearing and the statement of particulars that attend the request for hearing, commented on by the hearing officer at the commencement of the final hearing, and found within the transcript and further stated in the issues portion to this Recommended Order, this case has been carried forward. The presentation made by the Petitioner, after the Department and applicant had offered their cases, was through her testimony and that of employees of the Department together with exhibits she offered. The testimony of the Department employees concerned the procedural techniques that the agency pursued in reviewing the application at issue. Ms. Butler described her concern for her property, and the area between her property and the Williams property. This is the 10 foot easement area which is sparsely vegetated and low. As a consequence she was concerned that her property might be destroyed with the advent of the Williams construction. She has no expertise in her own right nor did she present expert opinion from other witnesses which would tend to bear out her concern. She also expressed the concern that the Williams home, in its dimensions, was too large and that it should be relocated an additional 10 feet back from the adjusted placement following the Department's criticism of the original application. In effect, she would have the house placed 20 feet away from the sea as compared to the original site plan submitted with the application on February 10, 1988. Again, there is no competent evidence presented which would support her theory that this further relocation was needed. Her expression of concern for the sea turtles and their hatchlings and habitat was not well founded. Turtles are known to nest on the sandy flat beach area and the construction of the Williams property will not interfere with that area adjacent to the ocean.
Recommendation Based upon a consideration of the facts and the conclusions of law reached, it is RECOMMENDED: That the Department enter a Final Order which grants a coastal construction control line permit to Harry B. Williams, Jr., based upon his modified plan required by the Department and upon the special permit conditions announced in the proposed final order, a copy of which is found as Department's Exhibit Number 8. DONE and ENTERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 27th day of April, 1989.
Findings Of Fact After DNR issued a cease and desist order to Petitioner, forbidding further construction on his Walton County lot seaward of the coastal construction control line, he applied for an after-the-fact permit authorizing work to go forward on a three-story ten-unit condominium, which would occupy some 95 percent of the width of his lot, and extend 34 feet seaward of the coastal construction control line. Petitioner's Exhibit No. 1. DNR staff stated the following, in recommending denial: There presently exists over 160 feet of property located landward of the control line in which the proposed structure could be sited. The staff is concerned that the proposed encroachment is not justified, nor considered necessary for reasonable use of the property. In addition, staff is concerned about the potential cumulative effects of siting major structures seaward of the control line along this section of the coast, which contains a number of undeveloped lots, as well as redevelopable lots. The cumulative impact of such construction will result in significant disturbance and damage to well-established, mature vegetation and eventual destabilization of the coastal barrier dune ridge. Also, the proposed encroachment and shore-parallel site coverage will have an adverse impact on the natural recovery processes of the beach/dune system following the impact of a major storm event. The proposed building is not designed in accordance with the standards set forth in Subsections 16B-33.05(6) and 16B-33.07(1) and (2), Florida Administrative Code. File number WL-183 ATF has been assigned. . . . RECOMMENDED DENIAL, ASSESMENT OF A CIVIL FINE OF FIVE THOUSAND DOLLARS ($5,000) AND REQUIRING REMOVAL OF THE EXISTING UNAUTHORIZED CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE. Petitioner's Exhibit No. 1. The "reference [to] the extensive site coverage was not only the shore parallel site coverage, but also included the proposed encroachment seaward of the control line." (T. 18). DNR staff opposes construction on Mr. Hill's lot of a habitable structure seaward of the control line. (T. 19, Petitioner's Exhibit No. 2, pp. 12 and 13). Petitioner Hill timely instituted formal proceedings on his application, WL-183 ATF, and Case No. 85-2455 is still pending. Shore Parallel Site Coverage Since October of 1983, in processing coastal construction permit applications, DNR has taken into account "shore parallel site coverage," i.e., DNR staff have considered the relationship between lot width and the width of any structure proposed to be built fronting the water, seaward of a coastal construction control line. A succession of waterfront buildings stretching the entire width of their respective lots walls off the foreshore from more landward dunes. "[I]f you cover an extensive portion of the beach in the shore parallel direction, you tend to she[a]r off the upland area from the beach area and limit and inhibit the natural recovery processes of the dune system." (T. 15) With respect to Petitioner's proposed project and any other of this size and shape planned this far down on a similarly platted, developed and configured beach, DNR engineers put the maximum acceptable width of the structure at 50 to 60 percent of the lot's gulf frontage. Petitioner's Exhibit No. 2, p. 23; T. 20, 22, 32, 35. DNR has no written policy limiting the width of structures built seaward of the coastal construction control line. Although DNR endeavors to treat similar sites similarly, sites vary significantly and different widths may be allowed on similar sites when structures with different depths are planned. Petitioner's Exhibit No. 3, pp. 9-13. In its post-hearing memorandum in support of Petitioner's rule challenge to DNR's non-rule policy regarding side setbacks, Petitioner quotes the following: Q: Would you generally recommend this 50 to 60 percent shore-parallel site coverage for other types of similarily situated lots, either on the same beach or on other beaches in Florida? A: The reference 50 to 60 percent is something we would feel comfortable with in certain areas of the beach that have similar characteristics and existing--similar situations regarding existing development, potential for redevelopment, stability of the dune area, and things of that nature. It certainly wouldn't apply--those figures wouldn't apply to all areas of the Florida coastline. [Deposition of Brett Moore, September 10, 1985, pp. 16-17.] Q: But for, say, a similarly situated beach, maybe you would try to get people to move toward that time of width without specifically telling them that that's the width of coverage that you desire. A: For the two areas I mentioned, I feel that something in the vicinity of 60 percent site coverage would be acceptable to the staff, and that's what I would tell people if someone proposed a project in that area today. [Deposition of Brett Moore, p. 27.] A: Given that amount of encroachment on the dune, I feel that a reasonably acceptable shore-parallel coverage, given that shore- normal coverage, that would not have a significant adverse impact, would probably be between zero percent coverage and thirty percent coverage. In terms of what we would recommend, generally, in what kind of dune encroachment of a major structure, approximately a thirty-foot width, or about fifty percent coverage would probably be acceptable in terms of the impact to the dune and the recovery potential following a major storm event. Q: Okay. Did you--so fifty percent would probably be okay by your lights; is that a fair characterization of that statement you just made? A: Yeah, I could recommend a fifty percent coverage there, . . . In terms of what I would recommend for a site like that with that kind of encroachment with a major structure on the dune, I would recommend approximately fifty percent coverage. Q: What about for a similar type of beach, not one down in Charlotte County or any place like that, but let's just say a similar type of beach somewhere in the panhandle, same relative dimensions, topography and the like? A: So for the same---for the same site, I would recommend the same. [Deposition of Ralph Clark, pp. 10-11.] At 2-3. Neither this evidence nor any other adduced at hearing proved the existence of an agency statement of general, statewide application purporting in and of itself to have the direct and consistent effect of law. It is DNR's policy to treat similarly situated landowners similarly and to consider cumulative impact. The parties proposed orders contain proposed findings of fact which are addressed by number in an appendix to this final order.
The Issue The issues to be resolved in this proceeding concern whether the Department of Environmental Protection (DEP) has jurisdiction over the activities encompassed by Permit Application BA-475 (Amended) and, if so, whether issuance of the permit complies with the applicable provisions of Section 161.053, Florida Statutes, and Chapter 62B-33, Florida Administrative Code.
Findings Of Fact Undisputed Facts: The following relevant facts are established by stipulation or admission and are not disputed. The proposed project is landward of the seasonal high waterline within thirty (30) years of December 1996; The project will not interfere with public access; The project will not result in the net excavation of in situ sandy soils seaward of the coastal construction control line (CCCL); Any sandy soil or material excavated for the proposed project seaward of the control line will remain seaward of the control line or setback and be placed in the immediate area of construction; The proposed project complies with the structural provisions of Rule 62B-33.007(2), Florida Administrative Code; The proposed project complies with Rules 62B-33.007(3)(a) through (d) and (f) through (h), Florida Administrative Code. Additionally at hearing, the Petitioners and Intervenor announced that they would not present any evidence on the issue of adverse impacts on marine turtles. Accordingly, impacts on marine turtles are not at issue in this proceeding. Project Description: RHE has proposed constructing a restaurant, pool, deck and stormwater basin within the Boardwalk Beach Resort on Panama City Beach, in Bay County, Florida. The Boardwalk Beach Resort consists of four (4) multi-story hotels with six hundred (600) rooms all together, several pools, boardwalks extending the length of the property and approximately seventeen hundred (1,700) to eighteen hundred (1,800) feet of beach front property. The project site is between Thomas Drive to the north and the Gulf of Mexico to the south. On July 23, 1996, RHE applied to the Department for a CCCL permit to construct, seaward of the interim line established by the emergency Order of October 16, 1995, the restaurant, swimming pool and deck. Part of the proposed deck was located seaward of the coastal construction setback line. On December 9, 1996, the Department issued a permit to RHE to construct the restaurant building with an attached deck fifteen (15) feet landward of the location originally proposed by RHE, as well as for construction of the swimming pool. On December 16, 1996, the Department issued to RHE an Amended CCCL permit authorizing construction of a restaurant building located five (5) feet landward of the location originally proposed by RHE, as well as a deck re-designed so that it would be structurally independent of the restaurant, a swimming pool and a dune enhancement plan which would restore the sandy dune seaward of the pool and restaurant location to its pre-hurricane Opal condition and elevation. The Amended permit would require re-vegetation of the dunes at the site with native plants to secure the dunes from erosion. Both the original and the Amended permits authorized the removal of the stormwater drainage pipe that carried stormwater onto the beach that had caused erosion of the beach near the project area. On January 9, 1997, the Petitioners timely filed a Petition challenging the Department’s decision to issue the Amended permit. On February 7, 1997, the Department established a new CCCL line for Bay County that was farther landward than either the old coastal construction setback line or the interim line established in the October 1995 emergency order. The project authorized by the Amended permit would thus be located entirely seaward of the newly established CCCL for Bay County. As of February 7, 1997, the date the new line was established, RHE had not begun working on the foundation or continued construction above the foundation for any of the structures authorized by the Amended permit. The Department determined that the project did not meet the requirements of Section 161.053(9), and Rule 62B-33.004(1), Florida Administrative Code, so as to qualify for an exemption from complying with the newly established CCCL for Bay County, as the project was not “under construction” at the time the new CCCL was established. The beach and dunes system is wide and the dune system is a significant one, with elevations of fourteen (14) to sixteen (16) feet NGVD, with a wide dune crest. The dry sandy beach in front of the site, even after hurricane Opal struck, remained approximately one hundred twenty-five (125) feet wide. From 1855 to 1934 the shoreline of the site was mildly accretional. Thereafter, until 1955 accretion was less significant, but from 1955 to 1976 became significant. From February 1992 through April 1995, the project site experienced a period of mild erosion. Accordingly the long-term data shows, in essence, that the shoreline is relatively stable at the site. Hurricane Opal caused the dune to erode or retreat landward by approximately a distance of fifteen (15) feet. Hurricane Opal was a major magnitude storm with one hundred twenty-five (125) mile per hour sustained winds and one hundred forty-four (144) mile per hour measured gusts when it came ashore in the vicinity of the proposed site. The dune portion of the proposed site now essentially mimics the pre-Opal conditions. Following hurricane Opal the applicants spent approximately Four Hundred Thousand Dollars ($400,000.00) in dune restoration along the entire shoreline of the resort property, some seventeen hundred (1,700) to eighteen hundred (1,800) feet of shoreline. That dune restoration work was permitted by the Department. There is now little native salt-tolerant vegetation on the site in its natural pre-construction condition. An existing stormwater drainage pipe and catch basin extend onto the beach seaward of the location of the proposed restaurant. The existing pipe and basin have caused erosion of the beach and the sand dune system on the project site. Under the amended permit proposal the stormwater pipe and basin would be removed. All of the proposed structures authorized by the Amended permit would be landward of the pre-Opal coastal construction control line. The proposed pool will be located landward of the dune crest and fifty-five (55) feet landward of the toe of the dune. The proposed restaurant would also be located landward of the dune crest and two hundred five (205) feet landward of the mean high waterline. The original design of the project was for a much larger, three story restaurant. The original pool design called for a one hundred twenty foot pool extending from in front of the Comfort Inn to beneath the proposed restaurant, in effect being located on the first floor of the restaurant. At DEP’s request the size of the pool was reduced by fifty percent (50%) and it was relocated into the shadow of the Comfort Inn next door so that it will no longer serve as an integral part of the restaurant. Pool depths were also reduced to three (3) feet at DEP’s request. The pool, at DEP’s request, will now be constructed of Gunnite concrete material and will be frangible, that is, it will be designed to break up in storm-surge or storm-waves. This will serve to decrease the erosion which could be caused by storm-waves flowing over and around the pool structure. The same is true of the restaurant deck, which at DEP’s request has been re-designed to be separate from the restaurant and also designed to fail in storm conditions. The frangibility of the deck, as now proposed, will retard erosion during storm conditions, as the stormwater or waves will demolish the deck and remove it rather than scouring the sand dune around it. The Department also requested that the existing stormwater drain pipe and catch basin be removed and such a removal has been made a condition of the subject permit. This will require that the applicant design and build a new stormwater system. The applicant has agreed to this condition and the others referenced above. Vegetation: Construction of the proposed project will not result in the removal or destruction of native vegetation. There is no such vegetation on the site where the construction will take place. Thus, construction of the project will not result in removal or destruction of native vegetation which will either cause de-stabilization of a "frontal, primary or significant dune" or cause a significant adverse impact to the beach and dune system due to increased erosion by wind or water. A special condition of the proposed amended permit requires that the applicant submit a dune enhancement plan for restoration of the dunes seaward of the pool and restaurant to its pre-hurricane Opal condition, including re-vegetation. Such a plan was submitted by the applicant and it includes the planting of sea oats on one (1) foot centers. The planting of sea oats as part of the dune enhancement plan will constitute a significant improvement to the native vegetation situation at the site. Disturbance of Sandy Soils: The project will not result in the removal or disturbance of in situ sandy soils of the beach and dunes system to such a degree as to have an adverse impact on the system. That is, the existing ability of the system to resist erosion during a storm will not be reduced. The proposed project will not result in the removal or disturbance of in situ sandy soils of the beach and dune system to such a degree as to cause adverse impact to those systems by lowering existing levels of storm protection to upland properties and structures. All the sandy material excavated for the pool and the stormwater basin will be placed seaward of these structures on the dune in the immediate area of the construction and seaward of the CCCL. The additional sand to be placed on the dune as part of the dune enhancement plan will, in fact, enhance the ability of the system to resist erosion during the storm. The ability of the dune to resist storm erosion is primarily a function of the quantity of sand within the dune system. The additional sand to be placed on the dune as part of the dune enhancement plan will enhance the protection of upland properties and structures including those of the Petitioners and Intervenor. Excavation of the stormwater basin will not destabilize the dune on the project site. The applicant is moving the stormwater basin landward by twenty (20) feet which will minimize the potential impacts of the basin on the dune system. The preponderant evidence establishes that the structure of the pool and pool deck will not cause an increase in structure-induced scour of such a magnitude as to measurably affect shoreline change rates. Scour caused by the pool will not significantly interfere with the beach-dune system's ability to recover from a coastal storm. The frangible design of the pool decreases the likelihood that it will cause any scour. It will break up in a storm so that any scour caused by the pool would be minimal. Any scour caused by the pool would not disturb the topography or vegetation such that the coastal system would become unstable or suffer catastrophic failure. Scour would have no measurable effect. The proposed restaurant and deck will not cause an increase in structure-induced scouring during a storm of such a magnitude as to have a significant adverse impact. The restaurant and deck will be constructed on piles. Scouring around piles, in a storm situation, is very localized and insignificant. By constructing the restaurant and deck on piles at the design elevation, storm-surge and storm-waves will pass under the deck and restaurant. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune to permit natural shoreline fluctuations. The structures will be built on pilings and will be elevated above the storm-surge; thus they will not interfere with shoreline fluctuations. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to preserve and protect beach and dune system stability, in terms of the lack of interference with such. Other structures in the area are seaward of the proposed restaurant and deck, including Pineapple Willies Restaurant, located eleven hundred feet to the west. Those structures have not caused instability of the beach during hurricane Opal. Typically, existing structures do not cause instability of the dune systems. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to allow for natural recovery to occur following storm-induced erosion. Natural recovery commonly occurs under pile-supported elevated structures which is not the case with “slab-on-grade” structures which are not elevated. The pool and pool deck will permit natural shoreline fluctuations, will preserve and protect beach and dune stability, and will allow recovery after a storm because they are designed as frangible structures that will fail and disintegrate in a storm situation. Thus they will not appreciably affect the beach-dune system. Line of Construction: Most coastal construction in Bay County extends out to the pre-Opal CCCL while some construction extends beyond it. Throughout Bay County the line of construction is the pre-Opal CCCL. The line of construction is determined by the most seaward extent of similar existing structures in the immediate area of the proposed structure under consideration in a CCCL permit application. The proposed pool is landward of the line of construction determined by existing pools within the boardwalk beach resort. There are a number of existing multi-story structures to the east of the proposed restaurant that are located out to the pre-Opal CCCL. That pattern of construction continues to the east of the proposed restaurant. Approximately one thousand (1,000) feet to the east of the proposed restaurant is an existing multi-story major structure that is built out to the pre-Opal CCCL. The beach in the area of the project is highly developed with commercial and condominium buildings. Within eleven hundred to twelve hundred feet to the west of the proposed restaurant there is another major structure built out to the pre-Opal CCCL. Just beyond that structure are a number of additional major structures, including Pineapple Willie's Restaurant, that are constructed out to the pre-Opal CCCL. The multi-story major structures to the east and west of the proposed structure are within the immediate area of the restaurant. The proposed restaurant is located landward of the line of construction established by these major structures within its immediate area. That line of construction is the pre-Opal CCCL. DEP did not consider major structures more than one thousand (1,000) feet from the proposed restaurant when it determined the line of construction for the restaurant. It is DEP’s policy when reviewing CCCL applications not to consider structures more than one thousand (1,000) feet from a proposed structure when determining the line of construction. The one thousand (1,000) foot limit DEP uses to determine the line of construction is not embodied in a rule. There was no preponderant coastal engineering or other scientific evidence which justifies the one thousand (1,000) foot limit DEP imposes when it determines the line of construction. It was appropriate to consider the existing structures referenced above in assessing the line of construction for this amended permit application and considering those lying just beyond the one thousand (1,000) foot distance, because those existing structures dominate the coastal processees in the region and only lie just beyond one thousand (1,000) feet to the east and twelve hundred (1,200) feet to the west. If the Department had considered the above-referenced existing major structures just beyond one thousand (1,000) feet of the proposed restaurant, it would have been shown that the proposed project was landward of the thus established line of construction. No preponderant evidence was offered to explicate why the one thousand (1,000) foot limit was automatically adhered to in this situation. Moreover, the line of construction is not a prohibition in and of itself but rather is only one of several criteria that must be balanced in determining whether or not to approve a CCCL permit application. Projects have been approved seaward of the line of construction in the past. Minimization The location of the swimming pool at the most practicable landward location, the reduced size of the pool, as well as its frangible design and limited depth, has minimized its impact. The placing of the excavated material in the pool’s immediate area and the restoration of the dune in front of the pool and deck have minimized the impacts of the pool and deck. The construction of the restaurant on pilings with its design elevation above storm-surge and storm-wave elevations, together with locating it behind the dune crest and away from the active beach, has minimized the impact of the restaurant. The deck is on pilings as well, elevated above storm-surge and storm-wave levels. It will be physically separate from the restaurant and its design frangibility (so that it will fail in a storm) results in its impact being minimized. The stormwater basin is located as far landward as practicable. Its location and the placing of the materials excavated for the basin on the dune immediately adjacent to the basin has minimized the impact of the proposed stormwater basin on the beach-dune system. The restaurant, pool, deck, and stormwater system will not have a significant adverse impact to the beach-dune system. The restaurant will not adversely affect exiting shoreline change rates, will not significantly interfere with recovery following a storm, and will not disturb topography or vegetation such that the system will become unstable or suffer catastrophic failure. Cumulative Impacts The proposed project will not have an unacceptable cumulative impact. There are no other proposed similar projects to take into account and a cumulative impact assessment has shown there to be no adverse cumulative impact. No evidence was offered to show that an unacceptable adverse cumulative impact in terms of existing or other proposed projects will result. Positive Benefit The proposed project will have a net positive benefit on the beach-dune system. The removal of the slab-on-grade constructed building will have a beneficial impact because it will reduce the chance of storm erosion to the beach-dune system posed by such structures. The existing stormwater pipe and catch basin which cause erosion would be removed, resolving that erosion problem. Stormwater will now be retained in a new stormwater basin designed to serve 1.7 acres and it will not flow onto the beach for any rainfall event up to a one hundred year design storm. The new stormwater system is designed to recover quickly after a storm event and to treat stormwater. The removal of the stormwater pipe and catch basin, and the installation of the new stormwater basin will have a positive benefit to the beach-dune system. The new stormwater system complies with Special Permit Condition 7. Moreover the applicant will restore the dune seaward of the project to its pre-hurricane Opal condition and will plant sea oats, on one foot centers, throughout the restoration area in accordance with Special Permit Condition 1.8. Such restoration of the dune and vegetation will benefit the beach-dune system. The natural recovery process will take several decades without the placement of sand in the dune restoration project. The dune enhancement plan submitted by the applicant, in order to comply with Special Permit Condition 1.8, exceeds the requirements of that condition since it places more sand on the dunes than necessary to achieve pre-Opal conditions. Testimony of expert witness Michael Walhter, which is accepted, establishes that restored beaches and dunes function much like natural ones in storm events even though they can be somewhat inferior in resistance to storm-surge and waves since the sand is not as compacted at first. This dune enhancement plan, however, exceeds the permit requirements by placing more sand than necessary on the dunes to achieve pre-Opal conditions. The Interim CCCL On October 16, 1995, the DEP issued its emergency Order establishing an interim CCCL for Bay County one hundred feet landward of the pre-Opal CCCL. The Department established that interim line in order to regulate coastal development in the wake of Hurricane Opal. In 1978 the Legislature established criteria to be used by DEP in establishing or re-establishing all CCCL’s. They are thus to be established to define that portion of a beach-dune system subject to severe fluctuations from a one hundred year storm event. At the time of Hurricane Opal, DEP had not re-established the Bay County CCCL using a one hundred year storm event criterion. The interim CCCL for Bay County established by the above-referenced emergency Order did not utilize nor was it based on the statutory one hundred year storm event criterion. All twenty-three (23) other CCCL’s that have been established based on the statutory one hundred year storm event criterion were established by rule. As of January 15, 1997, the applicant had received all governmental approvals necessary to begin construction of the proposed project except for that which is the subject of this proceeding. On January 22, 1997, DEP by letter advised the applicant to cease and desist construction of the project. On February 7, 1997, the Department by rule then taking effect established a new CCCL.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, DETERMINED: That the Department of Environmental Protection has jurisdiction over the proposed project and that it is, therefore, recommended that a Final Order be entered granting the Respondent, Resort Hospitality’s CCCL application consistent with the terms and conditions espoused by the Final Order of December 17, 1997, Respondent’s Exhibit 2 and the project plans depicted in Respondent’s Exhibits 3 and 4. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Bram D. Canter, Esquire 103 North Meridian Street Tallahassee, Florida 32301 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire 1315 East Lafayette Street, Suite B Tallahassee, Florida 32301 Neil H. Butler, Esquire Butler and Long, P.A. Post Office Box 839 Tallahassee, Florida 32302-0839 Kathy Carter, Agency Clerk Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact In 1981, Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley Petitioners' Exhibit 1, Respondent's Exhibit 1) At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December, 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20) On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984 that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area . . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16) The height of the dune line on petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under deed covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to some extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8) Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21) Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10) Although conflicting evidence was received as to whether or not the existing structures east of Petitioners lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioner's Exhibit 1) Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2) The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4.)
The Issue The issue for determination at the final hearing was whether the Petitioner Blaha possessed the requisite standing to maintain this action and if so, whether the Applicant Aquarina Developments, Inc., established by a preponderance of the evidence entitlement to a permit from the Coastal Construction Control Line ("CCCL") which would authorize construction of the following: (1) twelve above-ground balconies extending five feet over the CCCL; (2) two roof overhangs extending approximately one foot over the CCCL; (3) two dune walkovers and four decks providing elevated beach access; and (4) a temporary fence extending no more than five feet beyond the CCCL. At the final hearing, the Respondent Aquarina Developments, Inc., (hereafter "Aquarina" or "Applicant") offered Respondent's Exhibits 1-16, which were admitted into evidence. Edward Fleis, Howard J. Teas, Bert Leltz and Ross Witham testified on behalf of the Respondents. Peter Pritchard, Rob Lee and Georges Blaha testified for the Petitioner. Additionally, public comment was taken as provided at Section 120.57(1)(b)(4), Florida Statutes. A Proposed Recommended Order has been submitted by the Respondent Aquarina Developments, Inc. To the extent that the proposed findings submitted by Respondent are not reflected in this Order, they are rejected as unsupported by the weight of credible evidence or as being immaterial to the results reached.
Findings Of Fact By application No. 775-020.61 filed on July 1, 1981, Respondent Aquarina requested a coastal construction permit for construction of portions of twelve cantilevered balconies, two roof overhang sections, a temporary construction fence, four elevated wooden decks, and two dune crossovers, all seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida. The purpose of the proposed structures is to enhance utilization of the beach by residents of Aquarina's PUD located between the Atlantic Ocean and Mullet Creek, a tributary of the Indian River in South Brevard County, while at the same time inhibiting the deleterious effects of unrestrained pedestrian and vehicular access across the beach dune on the property. Respondent Aquarina's project is located on the barrier islands separated from the mainland by the Indian River, thirteen miles south of Melbourne and five miles north of Indian River County. Aquarina proposes to develop a condominium community approved as a PUD by Brevard County, with a projected population of 3,400 persons including 1,600 residential units, a commercial area, and 500 hotel rooms. The project includes at least two condo- mini urn buildings located entirely landward of the CCCL except for the following specific portions: Twelve cantilevered balconies ex- tending approximately five feet beyond the CCCL but not touching the ground; Two roof overhang sections extending approximately one foot beyond the CCCL; Two beach-dune walkover structures to be constructed a maximum of seventy- five feet seaward of the CCCL, which are to provide controlled beach access; Four elevated wooden observation decks constituting integral parts of the walkover structures; A temporary construction fence extending no more than five feet beyond the CCCL. On or about November 20, 1981, the Department indicated its intent to recommend to the Executive Director the issuance of the Applicant's coastal construction permit. After the granting of a requested extension of time, Petitioner Blaha filed objections and a Petition for the Initiation of Formal Proceedings under Section 120.57, Florida Statutes. The Petition raised three issues: Whether construction of the proposed minor structures seaward of the CCCT would harm sea turtles inhabiting the area at issue; Whether a new CCCL should have been set based on changing conditions in the area; Whether the additional shading caused by the proposed structures would harm the dune vegetation system. At the beginning of the hearing, the Hearing Officer heard argument and received evidence on the issues raised by the Motions to Dismiss filed by the Department and the Applicant. The Respondent's Motions raised three issues: Whether the Petitioner had standing to initiate this cause; Whether the alleged impact that the Applicant's proposed coastal construction would have on sea turtles lies within the jurisdiction of the Department and the Hearing Officer under Chapter 161 of the Florida Statutes; and Whether the exact configuration of the CCCL is a proper subject for consi- deration at a hearing challenging the proposed issuance of a coastal construction permit. Petitioner Blaha admitted that he did not live on the beach at issue and in fact lived on the west side of State Road A1A, three miles to the north of the Applicant's proposed project. The Petitioner stated that he was the Director of the Space Coast Branch of Friends of Animals, an environmental organization concerned about wildlife, although not representing the organization in this proceeding, and that he had a general interest in protecting the beach from erosion, a problem affecting everyone on the barrier island. In response to the argument that Petitioner Blaha had no special interest differing in kind from the interests of the general public, the Petitioner alleged that he runs on the beach and observes the sea turtles, arguing that this evinces a more than average interest in protecting the beach and its wildlife. The Hearing Officer also heard argument on whether the Department has jurisdiction to consider potential impacts on the nesting habitats of sea turtles from proposed coastal construction, under Chapter 161, Florida Statutes. Petitioner Blaha urged that although Section 161.053, Florida Statutes and the rules promulgated thereunder do not address sea turtles and their protection, the statute should be so interpreted. The Department responded that any jurisdiction it may have over sea turtles would be reposited in its Marine Resource Division, not in the permitting procedures for a coastal construction permit. In addition, federal laws protect endangered sea turtles, and the federal government has primary jurisdiction over the regulation of the nesting habitats of such sea turtles. Similarly, the Applicant and the Department pointed out that the Petitioner's criticism of the placement of the present CCCL falls outside the scope of a hearing on the issuance of a coastal construction permit, since Section 120.54, Florida Statutes provides for rulemaking proceedings for those attempting to change a rule established CCCL and Rule 16B-33.10, Florida Administrative Code, contains provisions for CCCL revisions or modifications on application of a riparian owner of property at or on the CCCL. Petitioner Blaha is not a riparian property owner and this was not a proceeding under Section 120.54, Florida Statutes. Respondent Aquarina established that it had taken and would continue to take all reasonable actions necessary to ensure the protection of sea turtles that inhabit the site through public relations campaigns and public advertisements to educate the public and especially the residents of the PUD and through architectural design efforts and dareful construction practices that will limit the impact of the proposed development on sea turtles and their nesting habitats. Moreover, to the extent that the development might have an impact on sea turtles, the source of the impact would not primarily be the structures at issue in these proceedings, but the buildings, parking lots, and other human habitation lying landward of the CCCL. The proposed temporary construction fence to be placed five feet beyond the CCCL will help conserve the dunes by limiting the potential impact of construction, and the Respondent Aquarina has agreed to restore that affected area to its natural state upon the completion of construction. Most importantly, the proposed dune crossovers will protect the dunes from the destruction that is occurring in the dunes to the north of the project and on the project site itself because of unrestrained pedestrian and vehicular traffic over and/or through the dunes and the accompanying destruction of dune vegetation in those areas. The dune crossovers are wooden walkways on raised pilings designed to have as little contact with the dunes as possible, with railings to restrain pedestrians from straying away from this direct access from the condominiums to the beach. The crossovers will make it unnecessary and undesirable for residents and visitors to create alternative foot paths through the heavy dune vegetation to the beach. Coupled with the educational program already being implemented by Aquarina, the dune crossovers should help to conserve the dunes. The Respondent Aquarina established that the incremental shading caused by the proposed roof overhangs extending about one foot beyond the CCCL and the cantilevered balconies extending approximately five feet beyond the CCCL would not significantly add to the shading from the buildings themselves, which lie entirely landward of the CCCL. The evidence showed that even the impact of the shading from the landward buildings would have no significant impact on the dune vegetation system or increase the rate of erosion or deterioration of the dune. See Rule 16B-33.02(23)(b), Florida Administrative Code. The additional impact from the minor structures for which the Respondent Aquarina seeks its permit should be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Department of Natural Resources, through its Executive Director, grant the requested construction control permit to the Applicant Aquarina Developments, Inc., subject to the conditions stated in the proposed permit (No. BE-80), the draft of which was attached to the Department's letter of November 20, 1981, notifying Petitioner Blaha of the Department's intent to issue the requested permit. DONE and ORDERED this 25th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1982. COPIES FURNISHED: Georges Blaha 280 Flamingo Drive Melbourne Beach, Florida 32951 Deborah A. Getzoff, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Clifford A. Schulman, Esquire GREENBERG TRAURIG ASKEW HOFFMAN LIPOFF QUENTEL & WOLFF, P.A. 1401 Brickell Avenue Miami, Florida 33131 Henry Dean, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Executive Director Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303
Findings Of Fact Petitioner, Wingfield Development Company (WDC), is a real estate development company located at 390 North Orange Avenue, Suite 1800, Orlando, Florida. In late 1982 or early 1983, WDC began developing a resort project known as Turtleback Beach Club (the project) in Indian River County. When completed, the project will consist of a 256 unit hotel, 68 villas, two swimming pools, a number of cabanas, a reverse-osmosis water plant, and other amenities which will cost approximately $50 million. All structures were designed to be constructed landward of the then existing coastal construction control line (CCCL). The date of establishment of the original CCCL is not of record. From late 1982 or early 1983 until 1987, WDC expended approximately $1.4 million on the project. Among the expenditures were the preparation of extensive cite and design plans, the installation of off-site utilities, and the fabrication and installation of some two hundred pilings and a number of pile caps. All such work was performed landward of the then existing CCCL. On March 5, 1987 respondent, Department of Natural Resources (DNR), reestablished the CCCL in Indian, River County. The new CCCL was more landward than the original CCCL. This resulted in several portions of the project, including all or parts of the villa and hotel, being seaward of the new CCCL. In November 1987 WDC was advised by the Indian River County Building Department to cease construction activities because, after consultation with DNR, it has decided not to make any further inspections. On April 4, 1988 DNR advised WDC by letter that, after making a site review of the project, it had determined that: the foundations for the hotel structure and the cabana located in the southeast portion of the property were `under construction' pursuant to the definition contained in Subsection 16B-33.002(56), Florida Administrative Code, at the time of the reestablishment of the coastal construction control line on March 4, 1987, ... (and that) the remaining five proposed cabana structures located on the south half of the property and shown to be seaward of the new control line, the proposed swimming pools, decks and gazebos, parking areas also shown to be seaward of the new control line and any other proposed landscaping work were not `under construction' pursuant to the definition. The letter added that the: staff shall consider the exemption status for the hotel and the one cabana under construction void if construction activity on these structures remains idle for a period of six months from the date of receipt of this exemption determination and prior to completion of the structures. Finally, the letter required petitioner to submit: a proposed `build out' schedule (that) would entail providing (the) staff with specifics of where (petitioner) expect(s) the overall project to be at ninety (90) day intervals up through completion of the structures located seaward of the coastal construction line. The staff feels that two years should be more than ample time with which to complete that portion of the project located seaward of the coastal construction control line. Progress must be maintained on each structure during each six month interval. Additionally, should your project fall short of any ninety day progress levels to be referenced in your `build out' plan, your project will lose it's (sic) exemption status and all remaining portions of the project, seaward of the control line will require a permit from the (DNR) in accordance with the provisions of Section 161.053, Florida Statutes. Because the letter offered a point of entry to contest the proposed agency action, WDC requested a section 120.57(1) hearing. At the same time, it continued construction on the project. On November 25, 1988 DNR issued further proposed agency action in the form of a letter advising WDC that, based upon a review of WDC's exemption file, the exempt status of the project had been "lost" and that any further construction activity seaward of the CCCL would require a permit from DNR under section 161.053. The receipt of this advice prompted WDC to file a second request for a section 120.57(1) hearing and a petition seeking to invalidate what it perceived to be an illicit rule, or in the alternative, the two rules from which the statements were drawn. WDC contends that DNR's requirement that, once a project is given an exempt status, it must remain under active construction and the owner must submit for DNR's approval a "build out" schedule, is an illicit rule since such a requirement is not contained in DNR's rules. Under state law, as implemented by DNR, no construction activity may take place seaward of a CCCL without a permit from DNR. However, any projects that are under construction at the time of the establishment of the CCCL are exempt from such permitting requirements. Under the current DNR organizational structure, the Division of Beaches and Shores (Division) is charged with the responsibility of administering and enforcing the CCCL regulatory program. The Division's Bureau of Coastal Engineering and Regulation has been assigned the task of performing a site review of all projects for which local building permits have been issued at the time of the establishment of a CCCL. If a project is under construction, as defined in DNR rules, at the time of the establishment of the CCCL, the owner may continue his activities even if the structures are seaward of the CCCL. A determination as to whether a structure is under construction at the time a CCCL is reset does not take into consideration the impacts the structure will have on the beach and dune system. This is because DNR considers such a determination to be regulatory in nature, and such impacts would be irrevelant to that decision. The Division construes its authority as also permitting it to require an exempt project to remain under active construction once it receives an exempt status. It does so on the notion that this insures that the exemption status was obtained in good faith, and the builder intended to go forward with the construction in a timely manner and as originally conceived. It has been DNR's experience that some property owners have engaged in a minimal construction program to circumvent the regulatory process. To prevent this, DNR has imposed a requirement that, if construction activity ceases for a period of six months or more, the exempt status will be lost. A six month time period was used because DNR realized that short, unforeseeable delays of less than six months were not uncommon. This policy has been uniformly applied, without discretion to agency personnel to do otherwise, on all projects classified as exempt. In addition, DNR has required project owners to submit to DNR staff a so-called "build out" schedule containing a construction schedule at ninety day time intervals with a time certain for completion of the project. This requirement, although infrequently used, has been uniformly imposed, when needed, upon all exempt projects, including that of WDC. The agency concedes that there is no specific statutory language authorizing the above requirements. However, it takes the position that these requirements are authorized and sanctioned by chapter 161 as a whole and by rules 16B-33.002(56) and 16B-004(1), which happen to be the rules challenged by WDC. Those rules read as follows: 16B-33.002 Definitions. (56) "Under construction" is the continuous physical activity of placing the foundation or continuation of construction above the foundation of any structure seaward of the established coastal construction or setback line. Under construction does not include application for or obtaining a building permit, a site plan approval or zoning approval from the appropriate local government agency having jurisdiction over the activity, purchasing construction materials, placing such construction materials on the site, clearing or grading the site in anticipation of construction, site surveying, continuation of site work beyond the limits of the foundation including landscape work or construction of nonhabitable major structures or rigid coastal or shore protection structures, or reactivating construction after substantially all construction activity has remained stopped for a period of six months or more. 16B-33.004 Exemptions from Permit Requirements. (1) Any structures under construction prior to the establishment of a coastal construction control line in a particular county are exempt from the provisions of Section 160.053, Florida Statutes, and this Chapter, except as noted in Subsection 161.053(12), Florida Statutes. Respondent acknowledges that there is nothing in rule 16B-33.004(1) that specifically authorizes it to impose the challenged requirements. However, it relies upon that part of the rule which reads "except as noted in Subsection 161.053(12), Florida Statutes" as implicitly authorizing this action. That statute removes the exempt status of a project if there are any subsequent modifications which "require, involve, ,or include any additions to, or repair or modification of the existing foundation of that structure." According to the Division director, it construes that language as authorizing it to make a determination as to whether the project owner has made any substantial changes in the nature of the project or if construction has been continuous. Respondent also relies upon rule 16B-33.002(56) which defines the term "under construction" as being "the continuous physical activity of placing the foundation or contination of construction above the foundation of any structure seaward of the established coastal construction control or setback line." The Division interprets this language to mean that construction must be continuous and without a cessation of activities of more than six months. This rule language is bottomed on subsection 161.053(9) which reads in pertinent part that "the provisions of this section do not apply to ... structures existing or under construction prior to the establishment of a coastal construction control line as provided herein; provided such structures may not be materially altered except as provided in subsection (5)." Finally, the agency relies upon subsection 161.053(1)(a) which sets forth the legislative intent behind the establishment of CCCLs. Among other things, the purpose of a CCCL is to protect, the beaches and dunes from imprudent construction which can "provide inadequate protection to upland structures." In the words ,of the Division director, DNR interprets this language to mean that it has the authority to "go back and look at projects once they are declared exempt, and to make sure that they remain exempt under the statute." The DNR documents which grant exemptions do not contain any reference to requirements that there be continuous construction on the project and that a build out schedule be submitted thereafter. Even so, DNR contends it is merely granting a "conditional" exemption conditioned on the project owner maintaining active and continuous construction. It posits further that, without such authority, its regulatory program would be rendered ineffective. However, the Division director conceded that, even without the imposition of these requirements, DNR still has authority to regulate all structures which are constructed seaward of the CCCL and to prohibit any material changes to an existing or partially completed structure. Petitioner intends to complete its project, but contends it cannot do so at the pace required in DNR's build out schedule. Also, WDC points out that it is unable to secure permanent financing for the project since lender's are uncertain if DNR will approve the build out schedule and allow construction to go forward or instead precipitously halt the construction. There have been no construction activities on the project since November 1988.
The Issue The issue is whether Respondent Negele is entitled to a coastal construction control line permit to construct a single- family residence seaward of the coastal construction control line on Anna Maria Island.
Findings Of Fact Respondent Susan Negele (Applicant) owns Lot 10, Block 35, of the First Addition to Anna Maria Beach. Petitioner owns the legal interest in Lots 11 and 12 in the same block. Lot 11 is adjacent to, and landward of, Lot 10, and Lot 12 is adjacent to, and landward of, Lot 11. As platted in 1912, Lot 10 was separated from the Gulf by 360 feet, consisting, from landward to seaward, of two 50-foot lots, an unnamed 10-foot alley, a 100-foot lot, a 50-foot-wide road known as Gulf Boulevard, and about 100 feet of beach (although this feature does not contain a stated distance and the plat map does not indicate the location of the mean or seasonal high water line). According to the plat, running perpendicular to Gulf Boulevard (and the shoreline) are Elm Avenue and another unnamed 10-foot alley. Elm Avenue, which is 50-feet wide, runs along the northwest property line of Lot 10, and the unnamed alley runs along the southeast property line of Lot 10. Today, Lot 10 is the first platted feature landward of the seasonal high water line of the Gulf of Mexico. The record does not reveal whether the platted features seaward of Lot 10 were submerged at the time of the original subdivision or, if not, the process or processes that submerged these three lots, alley, road, and beach. Notwithstanding the clear evidence of the plat map, there is insufficient record evidence on which to base a finding that the mean or seasonal high water line has migrated landward a distance of 360 feet in 88 years. The record is contradictory on the issue of the stability of the beach seaward of Lot 10. On the one hand, as noted below, two rock groins of unknown age on either side of Lot 10 suggest an effort to deter offshore erosion, but the presence of these groins does not support an inference of a diminishing beach. The beach seaward of Lot 10 is included in the Comprehensive Beach Management Plan, which is reserved for beaches that are subject to erosion, but the record does not develop this point adequately. On the other hand, also as noted below, the anecdotal evidence suggests that the beach seaward of Lot 10 has been stable, at least for the past two or three decades. A recent survey, described below, suggests rapid growth in the beach and dune over the past 16 months. Even stronger evidence of the stability of the beach seaward of Lot 10 is its exclusion from the 30-year erosion projection. The record unfortunately does not disclose the proximity of this line to Lot 10, which, if in close proximity, would be important evidence of the condition of a beach and frontal dune system. In sum, the relative stability of the beach in the vicinity of Lot 10 is unclear. However, the exclusion of Lot 10 from the 30-year erosion projection and the anecdotal evidence of stability slightly outweigh the contrary evidence of instability. Applicant's family has owned Lot 10 for 50 years. Originally, they occupied two buildings on Lot 10 that had once served as Coast Guard barracks. At one point, Applicant's father barged the houses up the Manatee River to his father's farm in Palmetto. The record does not reveal whether another building was ever constructed on Lot 10. From an engineering standpoint, Lot 10 is a buildable lot. Applicant seeks the necessary permits to allow residential construction, so as to raise the market value of Lot 10 prior to its sale in order to liquidate this asset following the death of her surviving parent. By application filed with Respondent Department of Environmental Protection (DEP) on June 16, 1997, Applicant requested a coastal construction control line (CCCL) permit to construct a single-family residence on Lot 10. On June 30, 1999, DEP issued a Final Order tentatively granting the permit, but authorizing the construction of a structure with a footprint of only 352 square feet. Finding the allowable footprint insufficient, Applicant challenged the tentative agency action in DOAH Case No. 99-3913. Finding even a 352-square-foot footprint objectionable, Petitioner also challenged the tentative agency action in DOAH Case No. 99-3613. The Administrative Law Judge consolidated the two cases. Agency action in cases of this type is necessarily tentative because it is subject to administrative challenge, which, once resolved, allows final agency action to take place. However, the tentative agency action in this case is tentative in another important respect. DEP has approached the permitting decision in this case through a bifurcated process. DEP has issued a Final Order approving the proposed activity in concept, but has withheld issuing a Notice to Proceed, which is necessary before construction may commence. DEP has withheld issuing the Notice to Proceed until it receives more detailed plans for grading and revegetating the dune and it determines that these plans adequately address the protection of the beach and dune system. As noted below, the bifurcated permitting process defers DEP's examination of detailed grading and revegetation plans until after its issuance of the Final Order. DEP's expert testified that DEP provides a point of entry to challenge final orders, but not notices to proceed. (Tr., p. 174.) The expert testified that DEP would provide another point of entry concerning the proposed activity, but only if DEP were to issue another final order, such as for a "major modification" of the project (Tr., p. 174). But nothing in the record suggests that DEP will be issuing another final order following it's receipt of the more detailed grading and revegetation plans, whose approval by DEP is not subject to administrative challenge (absent successful judicial action to force DEP to provide another point of entry). (The record does not reveal whether DEP would provide Applicant with another point of entry if DEP were to disapprove the more detailed plans and decline to issue the Notice to Proceed.) The absence of an agency-recognized point of entry to challenge the detailed plans means that the analysis necessary to make the determinations required by law concerning the impacts of the proposed activities must be limited to the Permit, as it presently exists, and these determinations may not rely upon additional protections that may be supplied by more detailed plans that are not yet in existence. DEP and Applicant settled DOAH Case No. 99-3913 shortly prior to the final hearing. The settlement stipulation incorporates a new site plan showing the proposed residence moved landward so that it is seven feet landward of the vegetation line, but setback only three feet from the northeast property line (adjoining Lot 11) and five feet from the southeast property line (adjoining the alley). DEP approved the settlement on or about March 17, 2000. By letter dated March 22, 2000, DEP's counsel advised Applicant's counsel that DEP would announce at the final hearing that "it intends to issue the [Permit] . . . in accordance with the agreed location in [the revised site plan] and all other applicable conditions of the June 29, 1999, final order and June 30, 1999, letter from [DEP] to Charles Rose." The CCCL permit is dated June 29, 1999, and expires on June 29, 2002. References to the "Permit" shall include the subsequent modifications that resulted in the settlement of DOAH Case No. 99-3913 and the modifications described below. Petitioner objected to all evidence and any express or implied amendment of the pleadings at the final hearing to encompass subsequent Permit modifications, but the Administrative Law Judge overruled these objections. The Permit authorizes Respondent to conduct activities in a location that is seaward of the CCCL, but landward of the 30-year erosion projection and the existing line of construction established by major structures in the immediate area. According to the survey dated October 15, 1998, and architect's plans dated November 12, 1998, the residence to be constructed would be an elevated two-story frame structure, over a concrete pad, with a footprint of 952 square feet. The proposed structure would be similar in size and character to other residences in the area. A registered architect has signed and sealed all relevant construction plans. For the purpose of this recommended order, the seaward side of Lot 10 is its 110-foot side facing the southwest. This southwest property line runs from the west corner to the south corner of Lot 10. The north and east corners mark the 110-foot side of Lot 10 that abuts Lot 11; this is the northeast property line. As already noted, the two 50-foot sides of Lot 10 abut Elm Avenue and the unnamed 10-foot alley. As it exists in the ground, Elm Avenue is a strip of pavement 17 feet wide located in the middle of the 50-foot wide platted right-of-way. At present, the paved portion of Elm Avenue does not extend seaward of the midpoint of Lot 11. Applicant proposes the construction of a shell drive between the Elm Avenue right-of-way and the north corner of Lot 10, but this proposed activity is not the subject of the present case. The road right-of-way immediately adjacent to Lot 10 was occupied by a 60-foot wooden access walkway extending from the end of the road seaward, between the rock groin and the northwest line of Lot 10. However, this walkway was removed in the past couple of years. At present, the rock groin parallel to the northwest line of Lot 10 occupies the center of the road right-of-way, extending from Lot 10's midpoint, which is landward of the seasonal high water line, to a point seaward of mean sea level. Another rock groin runs from the unnamed alley along the southeast line of Lot 10, also from a point just landward of the seasonal high water line, and extends seaward of mean sea level. Running parallel to the two 50-foot lot lines of Lot 10 and perpendicular to the shoreline, these two rock groins may offer some protection from erosion by affecting sand traveling offshore, but do not otherwise directly offer any protection to the beach and dune system. As established by Applicant, landward from the Gulf, relevant natural features are located as follows. Mean sea level, which is 0.00 feet National Geodetic Vertical Datum (NGVD), is over 50 feet seaward of the west corner of Lot 10 and over 100 feet seaward of the south corner of Lot 10. Mean high water, which is 1.2 feet NGVD, is 35 feet seaward of the west corner of Lot 10 and about 75 feet seaward the south corner of Lot 10. Seasonal high water, which is 3.63 feet NGVD, is about 10 feet landward of the west corner of Lot 10 and about 25 feet seaward of the south corner of Lot 10. About 15-20 square feet of the relatively low west side of Lot 10 is submerged at seasonal high water. In two respects, Petitioner's survey, which was dated March 25, 2000, establishes that, at least for the past 16 months, the beach and dune system is flourishing, not eroding. First, mean high water is now farther from Lot 10 than it was in late 1998. In the intervening 16 months, the mean high water line has migrated to a point 77 feet seaward of the west corner of Lot 10--a distance of 37 feet in less than one and one- half years. During the same period, the mean high water line has migrated from 75 feet to 102 feet--a distance of 27 feet--seaward of the south corner of Lot 10. Second, the newer survey reveals that the seven-foot contour, which is shown on Applicant's survey as a small area at the midpoint of the southeast lot line, now extends across the southeastern two-thirds of the central portion of the lot. It is difficult to estimate from the surveys, but the area of at least seven-foot elevation appears to be six or seven times larger than it was 16 months ago, although a very small area of eight-foot elevation shown on Applicant's survey appears to have disappeared. Both surveys show that the six-foot contour line roughly bisects Lot 10 diagonally from the north to the south corners. Evidence of beach stability supplied from the March 2000 survey is reinforced by anecdotal testimony that the beach at this location has been stable for at least 20 years. In general, the beach at this location is not as dynamic as beaches found elsewhere in Florida. The CCCL is about 259 feet landward of the north corner of Lot 10 and about 222 feet landward of the east corner of Lot The CCCL is landward of Petitioner's Lots 11 and 12, as well as the next two 50-foot wide lots and nearly the entirety of Gulf Drive (Snapper Street on the plat) adjoining this block. According to Applicant's survey, the seaward toe of the frontal dune runs roughly along the seaward six-foot contour, perhaps 10 feet seaward of this contour at the west corner and a perhaps five feet landward of this contour at the south corner. The vegetation line runs 3-5 feet landward of the surveyed seaward toe of the dune. According to Applicant's survey, the frontal dune continues over the landward half of Lot 10, excluding only a 10-square-foot area at the east corner and extending well across the southeastern line of Lot 11, so as to capture about one-fifth of that lot. However, the surveys do not support an independent determination of the toes of the frontal dune or, thus, its width. DEP's expert testified that the landward toe of the dune is probably landward of the surveyed location. Also, the scale of the surveys did not facilitate analysis of subtle changes in slope, which would be indicative of the toes of a low frontal dune, such as is involved in this case. DEP's expert opined that a maximum elevation of seven or eight feet NGVD meant, at this general location, that the toes would probably be at the five- foot contours. If so, the seaward toe would be about 10-15 feet seaward of its surveyed location, and the landward toe would be at an undetermined location landward of Lot 10. Several dynamic processes underlie the beach and frontal dune system. Perhaps most obviously, plants rooted in a dune capture sand and, thus, add to the size of a dune. The absence of such plants facilitates a reduction in dune size. The stability of a dune is also affected by the slopes of its seaward and landward sides and the size of the grains of sand constituting the dune. When restoring a dune, adherence to historic slopes and elevations enhances the possibility of a successful dune restoration. Deviation from these slopes and elevations raises the risk of failure. The same is true regarding the size and characteristics of the grains of sand used to restore a dune. Another factor important in dune stability, as well as upland protection, is the continuity of the dune. A shorter dune, in terms of its length running parallel to the shoreline, is less stable and obviously offers less landward protection than a longer dune. As originally proposed, Respondent's home would occupy the east corner of Lot 10. The southwest side of the residence (facing the Gulf) would have been about one foot seaward of the vegetation line and only one to two feet landward of the surveyed seaward toe of the frontal dune. The landward side of the residence would have been 10 feet seaward of the northeast side of Lot 10. The proposed home would have been setback 10 feet from the northeast and southeast property lines. Shortly prior to the commencement of the hearing, Applicant modified the proposed plans, and DEP modified the Permit. These changes would relocate the proposed residence so that it was seven feet landward of the vegetation line, but setback only three feet from the northeast line and five feet from the southeast line. Despite its relocation landward from its original proposed location, the entire residence would occupy the frontal dune. More specifically, the residence would sit on the seaward side of the frontal dune. The Permit imposes a number of special conditions upon the construction of Respondent's residence. Consistent with DEP's bifurcation of the permitting process in this case, these special conditions prohibit the commencement of construction until Respondent submits plans and specifications "includ[ing] or reflect[ing] the following:" 1.1 A revised site plan including the distances relative to coastal construction control line to all the authorized structures with dimensions. The revised site plan shall depict the dwelling relocated to within 3 feet of the upland lot line and not exceeding a distance of 244 feet seaward. * * * 1.5 A revised grading plan depicting the restored dune extending across the entire parcel with a minimum crest elevation of +7.0 feet (NGVD). * * * The fill material shall be obtained from a source landward of the control line and shall consist of sand which is similar to that already on the site in both grain size and coloration. This fill material shall be free of construction debris, rocks, or other foreign matter. A sample of the sand shall be provided to the staff representative during the preconstruction conference. All permanent exterior lighting shall be installed and maintained as depicted in approved lighting schematic. No additional exterior lighting is authorized. CAVEAT: Due to potential adverse impacts to the beach and dune system that may result from additional development on the property, the shore-parallel and seaward extent of the permitted structures shall not be increased, nor will any additional major structures be permitted which would exceed the limits established by the permitted construction seaward of the coastal construction control line. The present proposed location of the residence is not landward of a line running 244 feet seaward of the CCCL. Roughly one-third of the proposed residence would be seaward of this line, which is set forth in the Permit. Addressing the obvious conflict between the restriction contained in Permit Paragraph 1.1 prohibiting any structure seaward of a point 244 feet seaward of the CCCL and its approval of the new location for the residence, DEP announced at the hearing a new Permit Paragraph 1.1, which reads: The revised site plan shall depict the dwelling relocated within three feet of the upland lot line and not exceeding a distance of 250 feet seaward of the CCCL on the southwest corner and 255 feet seaward of the CCCL on the northwest corner. (Tr., pp. 119-20.) The revised site plan clarifies that the reference to "three feet" means the three-foot setback on the northeast lot line. The references to the southwest and northwest corners are, respectively, to the southernmost corner, which, when used with respect to Lot 10 in this recommended order, is described as the south corner, and the westernmost corner, which, when used with respect to Lot 10 in this recommended order, is described as the west corner. (For ease of reference at the hearing, counsel, the witnesses, and Administrative Law Judge reoriented Lot 10 by referring to the southwest lot line as the west lot line and treating the Gulf, which is southwest of Lot 10, as though it were due west of Lot 10.) At present, Applicant has submitted no grading plans, which would address the seaward toe of the frontal dune after construction. The landward toe is not on Applicant's property, so Applicant will not be able to change the slope of the landward side of the dune by adding sand to the portion of this dune not contained within Lot 10. As identified to this point, the Permit's requirements for dune restoration are sketchy, reliant upon more detailed grading plans that are not yet in existence. Permit Paragraph 5 adequately specifies the grain size. However, the Permit fails to specify the slopes, leaving this crucial element of the dune to the more detailed grading plans. Under the Permit, Applicant would be required to supply a specified volume of sand to the site. This volume was calculated to be sufficient, based on Applicant's survey, to raise the portion of the dune northwest of the seven-foot contour to an elevation of seven feet NGVD. However, if Petitioner's survey is correct, much less sand will be needed to raise the elevation to seven feet NGVD, so the "excess" sand will widen the dune. This recommended order has credited both surveys, so Applicant's survey provides the relevant details except for the more recent information supplied by Petitioner's survey concerning the locations of the mean high water line and the seven-foot contour. The widening of the dune authorized by the Final Order necessarily changes the dune's profile by extending the seaward toe closer to the shoreline and probably changes the slope of the seaward toe of the dune. Additionally, raising the elevation of the dune in the northeastern portion of Lot 10 will dramatically change its landward profile, given the fact that Applicant cannot add sand to the large portion of the dune landward of Lot 10. The effects of these alterations of the dune profile are entirely unknown to Applicant and DEP. Failing to perform the preliminary tasks of locating the existing dimensions of the dune--in terms of its width (perpendicular to the shoreline) and its length (parallel to the shoreline)-- Applicant and DEP lacked the baseline data upon which they could then analyze the construction and post-construction effects of placing Applicant's residence atop this dune. The present stability of the beach and dune system at Lot 10 does not dispense with the necessity of such analysis in making the determinations required by the relevant law. Additionally, the Permit fails to address the revegetation of the dune, again leaving this issue to more detailed plans not yet in existence. Specifically, Applicant has submitted no plans establishing a replanting scheme with specified species at specified distances, criteria by which to measure the success of the revegetation process (e.g., X percent coverage after one year), and a monitoring and enforcement program. Lastly, although the City of Anna Maria issued a letter approving of the proposed plans when Applicant proposed ten-foot setbacks, the City of Anna Maria has not had a chance to comment upon the proposal of three- and five-foot setbacks. Land use regulations of the City of Anna Maria require greater setbacks than these. As distinguished from its treatment of the dune profile and vegetation, the Permit supplies ample assurances that the proposed activities would be conducted in such a way as not to disturb nesting sea turtles, which, according to the record, infrequently occupy this specific location. Permit provisions, such as those scheduling construction and governing construction and post-construction lighting, adequately address the relatively simple task of protecting this lightly used nesting habitat.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application for a coastal construction control line permit to construct a residence at the location indicated at the hearing. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 13th day of June, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Adam Mohammadbhoy Harllee Porges Post Office Box 9320 Bradenton, Florida 34205 S.W. Moore Brigham Moore 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237 Francine M. Ffolkes Senior Assistant General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-9314
