Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in this case is whether Respondent wrongfully discriminated against Petitioner in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner is a female residing in the community known as the Hammocks in Ocoee, Florida. She was a frequent attendee at Homeowners' Association meetings for a number of years. In April 2007, Petitioner was elected to the Board by its members in recognition of her interest in the community. Petitioner was elected as a director on the Board; she was not an officer. She regularly attended Board meetings and was active and involved. There were no complaints raised by the Board concerning Petitioner's exercise of her duties as a director. The Homeowners' Association of the Hammocks was established to monitor and manage all issues relating to the Hammocks, e.g., maintenance of homes and lots, noise issues, safety, etc. The Homeowners' Association was not named as a Respondent in the instant action.1 The Management Company provided services to the Hammocks and to other properties and communities as well. The responsibility of the Management Company was to manage the day-to-day affairs of the community. For example, the Management Company would ensure that all homeowners were in compliance with restrictive covenants and community rules. It would insure that maintenance of the common grounds was kept current. It would provide consultation concerning any issues that arose within the community concerning enjoyment of the property by homeowners. The Management Company has been under contract with the Hammocks since approximately calendar year 2003. Gary Comstock, vice-president of the Management Company, regularly attends Board meetings as the representative of the Management Company, but does not attend all meetings. During the same period the Management Company was employed by the Hammocks, it was also serving another community known as West Oaks Villages. It provided the same kind of services to West Oaks Villages that it provided to the Hammocks. Some time during calendar year 2007, Petitioner became acquainted with a person by the name of Catherine Hall who resided in West Oak Villages.2 Petitioner met Hall at a polling place during an election period. At that time Hall was involved in a dispute with her own Homeowners' Association at West Oaks Villages. Hall was also concerned about the Management Company and what she saw as possible shortcomings on its part, vis-à-vis, duties and responsibilities to West Oaks Villages. Hall's case was ultimately forwarded to the Division of Administrative Hearings and assigned Case No. 07-3368; the case style included both West Oaks Villages and the Management Company as named respondents. A final hearing was held in that case on September 17, 2007, before Administrative Law Judge Clark. Petitioner testified in Ms. Hall's case at final hearing. At that time, Petitioner was serving as a director on the Board of the Hammocks Homeowners' Association.3 During her testimony, Petitioner expressed concern about the Management Company. Petitioner's testimony in the Hall case was ultimately disregarded by the Administrative Law Judge as being irrelevant. A resident of the Hammocks (Renee Reynolds) somehow became aware of Petitioner's testimony at the Hall final hearing. Reynolds sent a letter to the Board dated October 20, 2007, expressing concern that Petitioner--while serving on the Hammocks Board--would testify against its management company in a DOAH proceeding. The resident felt like this was a conflict of interest and suggested Petitioner might not deserve a "seat" on the Board. Petitioner somehow discovered the letter (which had apparently been attached to an email to her on the day it was written). Petitioner responded to the letter and submitted her written response to the Board on October 21, 2007, i.e., the day after Reynolds' letter was written. Petitioner's response was delivered to the Board at a regularly scheduled meeting on that day. The Reynolds letter and Petitioner's response were discussed at the October 21 meeting. The next Board meeting (hereinafter referred to as the "November Meeting") was held on November 26, 2007. At the November Meeting, one of the issues on the agenda had to do with maintenance of certain lots and houses within the community. Petitioner was told by the Board that she could not cast a vote as the homeowner of a house she was maintaining for some friends. The Board's attorney cited legal precedence for this denial, but Petitioner was not happy with the decision. There were some contentious moments in the November Meeting between Petitioner and other Board members. During the November Meeting, Petitioner brought up the Hall case in reference to some complaints she was making about the Management Company. Review of the video of the November Meeting4 shows that Petitioner was very agitated at this time. In response to some of Petitioner's comments, Comstock asked to make a statement. After his comments, Petitioner was given a brief opportunity to reply. Comstock's comments to Petitioner were also somewhat heated in nature. He said that Petitioner had denigrated the Management Company for quite a number of years, and he was tired of it. He said her unwarranted criticisms were akin to the techniques used by Hitler, i.e., that if they were said often enough, people might actually begin to believe them. He also said that Petitioner's complaints were like those used by bigots in the 1960's to degrade people of color without any basis. His analogies did not compare Petitioner to Hitler or to a bigot; they merely attacked Petitioner's method of making complaints against the Management Company. Comstock also stated at the meeting that if Petitioner continued her verbal abuse of the Management Company, it would take whatever action necessary--even litigation--to put an end to the abuse. Petitioner perceived that comment to be a threat. Comstock says they were not meant as such. Upon review of the videotape and consideration of the context, the comments do not appear threatening. Petitioner took great exception to Comstock's statements and took them personally. However, upon review of the videotape of the November Meeting, the statements do not appear offensive in and of themselves. None of the Board members addressed Comstock's remarks when he finished talking. That is, no one chastised him or said his comments were inappropriate. Also, in attendance at the November Meeting was Spencer Solomon (Respondent in this case), president of the Management Company. Solomon's involvement with the Hammocks had to do solely with financial matters. That is, he handled the financial issues and left day-to-day management issues to Comstock. Solomon rarely attended Board meetings, but was asked by Comstock to attend the November Meeting because of expected "uncomfortable-ness" relating to Petitioner.5 Solomon attended and spoke briefly, during which time he mistakenly said that the Management Company was not a party in the Hall case. That was erroneous and Solomon admitted so at final hearing. His misstatement was not intentional; he believed it to be true at the time it was made. At the November Meeting, Petitioner was allowed to present her side of the story concerning the Hall issue. She explained that she testified in Hall's case as a private person, not as a Hammocks Board member. Petitioner had met Hall prior to taking a position on the Board, but Hall's hearing was held after Petitioner had been appointed to the Board. Petitioner said that she was genuinely concerned about how the Management Company was performing its duties for the Homeowners' Association. Following discussions at the November Meeting, Terri Ballard, the Homeowners' Association representative, advised Board members as to the process for removing a Board member. (There was no testimony or evidence presented at final hearing as to why Ballard raised this issue.) A Board member could be removed by way of one of three methods: They could resign; they could serve their full term and not be re-elected; or, they could be recalled. The recall process was to circulate a petition among homeowners and if a sufficient number signed the petition, the Board member could be removed. A petition was thereafter created and dispersed by Ballard to homeowners. Ballard was responsible for obtaining signatures on the petitions and collecting the petitions from homeowners. Of the approximately 125 lots within the Hammocks, about 65 homeowners (52 percent of the lots) returned signed petitions to Ballard.6 Ballard collected the petitions (also referred to as ballots) and turned them over to Comstock as representative of the Management Company. Comstock then turned the ballots over to the attorney representing the Board. At a specially called meeting in May 2008, the Board voted to recall Petitioner from her position on the Board. The vote followed review of the recall petitions that had been circulated among the other residents of the Hammocks. The petitions were not introduced into evidence, and there is no evidence as to what they said or how the language was worded. Petitioner was allowed to briefly review some of the ballots, but did not review each and every one of them. So far as she knows, no official audit was done to ascertain that all ballots were true and correct or that a sufficient number had been collected. Petitioner believes her recall was retaliation for her testimony in the Hall case. However, her testimony in that case was against the Management Company; she was recalled by the Board. It is clear that the Management Company has no authority or control over the Board. Rather, the Management Company operates under a contract with the Board to perform certain functions. Election and retention of Board members is not one of the Management Company's enumerated tasks. Further, the comments made by Comstock at the November Meeting appeared to be the culmination of years of attacks by Petitioner against the Management Company. There is nothing to suggest that Comstock's comments were limited to or even specifically directed at the Hall matter. Even so, the Board was not a party to the Hall case, and the Hammocks was not discussed at the final hearing in that case. Thus, there could be no retaliation by the Board relating to that case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding Respondent, Spencer Solomon, not guilty of an unlawful employment practice and dismissing Petitioner, Victoria Laney's, Petition for Relief. DONE AND ENTERED this 19th day of November, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2008.
The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
The Issue Whether Respondent, Lake Bentley Shores, Inc. (Respondent), engaged in unlawful housing discrimination in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner is a female who, at all times material to the allegations of this case, resided in a first floor condominium, Unit A-3, in Lake Bentley Shores. The legal owner of Unit A-3, Lake Bentley Shores, is Jose Anglada (Mr. Anglada). Mr. Anglada employed CDC Properties of Central Florida, LLC (CDC), to manage his unit. CDC was responsible for the day- to-day management of the unit and collected rent payments due to the unit owner. In contrast, A1A Property Management (A1A) was the on-site property manager for the Lake Bentley Shores condominium community. The Lake Bentley Shores condominium community was governed by Respondent, a condominium association organized under the laws of Florida. In addition to retaining a management firm to address the daily workings of the condominium property, Respondent also retained U. S. Security Associates, Inc. to provide night-time security services for the condominium community. The security company reported to A1A daily regarding security issues. At all times material to the allegations of this case, U. S. Security Associates, Inc. employed Mr. Goodkind and assigned him to the Lake Bentley Shores condominium property. Mr. Goodkind was not Respondent’s employee. Mr. Goodkind was not A1A’s employee. Mr. Goodkind was not CDC’s employee. All leasing arrangements between Petitioner and the Unit A-3 owner were handled by CDC. Any complaints regarding the unit were to be made to CDC. Petitioner never filed a written complaint to Respondent regarding the offensive or inappropriate behavior toward her committed by Mr. Goodkind. On January 10, 2012, Petitioner made a verbal complaint to Steve Allen, A1A’s on-site manager, regarding Mr. Goodkind’s alleged sexual harassment toward Petitioner. Mr. Allen took action to notify U. S. Security Associates, Inc. Mr. Goodkind was immediately removed from the Lake Bentley Shores assignment. Thereafter, Petitioner made no written or verbal complaints regarding sexual harassment to Respondent, A1A, or CDC. Lake Bentley Shores comprises of 160 condominium units. Some of the units, like Unit A-3, share a wall with a utility/storage closet. Such closets house water heaters. Water heaters must be inspected regularly to assure no leakage. Historically, leaking water heaters were a maintenance issue at the condominium property. Although Respondent has rules and regulations regarding resident conduct on the Lake Bentley Shores property, it delegates the routine operation of the condominium property to A1A. At all times material to the allegations of this case, A1A directed U. S. Security Associates, Inc. (through its night-time security employee) to assure noise levels during the night-time hours were appropriate, to regularly “walk” the Lake Bentley Shores property to assure the safety of residents, and to observe and report any suspicious activity. Included in the areas to “walk” were the utility/storage closets previously described. Thus, it was common for Mr. Goodkind to enter the closets, walk around the buildings, observe the parking areas, and to listen for noises to assure the tranquility of the property. Excessive noise from any unit was not acceptable. Prior to the allegations of this case, Mr. Goodkind worked as a security guard at the Lake Bentley Shores property for approximately four years. During that time he established himself as a conscientious enforcer of the noise regulations, he kept a log of vehicles entering and exiting the property, and made efforts to reduce vandalism or theft. Mr. Goodkind did not sexually harass Petitioner. At no time did Mr. Goodkind peer into Petitioner’s windows, peep through any hole, or follow Petitioner except in the manner appropriate for the performance of his routine duties as a security officer. Mr. Goodkind did, however, confront a resident or guest of Unit A-3 to seek reduction in the noise level emanating from the unit. CDC initiated eviction proceedings against Petitioner due to failure to pay rent and damage to Unit A-3. Respondent had no involvement in the eviction. A1A had no involvement with or connection to the eviction other than a report made to CDC that gave notice of a broken window visible from the exterior of the unit. Petitioner eventually moved out of Unit A-3 after reaching an agreement with CDC. Petitioner presented no credible evidence that Mr. Goodkind harassed her in any manner. Mr. Goodkind did not interfere with Petitioner’s enjoyment of her residence. Petitioner presented no credible evidence that Respondent harassed her in any manner or suffered any damages as a result of such alleged behavior. Respondent did not interfere with Petitioner’s enjoyment of her residence. Petitioner presented no credible evidence that A1A as Respondent’s agent harassed her in any manner. A1A did not interfere with Petitioner’s enjoyment of her residence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission Human Relations issue a final order finding no cause for an unlawful housing practice as alleged by Petitioner, and dismissing her complaint. DONE AND ENTERED this 28th day of March, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2013. COPIES FURNISHED: Richard L. Bradford, Esquire Bradford and Bradford, P.A. Suite 196 150 East Bloomingdale Avenue Brandon, Florida 33511 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 William E. Roberts, Esquire GrayRobinson, P.A. One Lake Morton Drive Post Office Box 3 Lakeland, Florida 33802 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mark Miller, Esquire GrayRobinson, P.A. One Lake Morton Drive Post Office Box 3 Lakeland, Florida 33802
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On March 26, 1991 Venice applied to the Department for a CCCL permit to construct a 475 foot wooden retaining wall seaward of the coastal construction control line and to place a shell road immediately adjacent to, and landward of, the retaining wall from approximately 100 feet south of Granada Avenue to approximately 50 feet south of Ocala Street on Venice's right-of-way of The Esplanade in Venice, Florida. The Petitioners Roy B. and Patricia B. Olsen are residents of Venice, Florida and reside at 304 Ocala Street. They own Lot 1, The Esplanade, which is immediately east and south of the southern terminus of the proposed retaining wall. Petitioner, Nina Howard is a resident of Venice, Florida and resides at 721 Ocala Street. Ms. Howard's residence is located to the south and across Ocala Street from the site of the proposed retaining wall. Intervenors, Roger and Irene Fraley are residents of Venice, Florida and reside at 221 The Esplanade South, which is immediately landward (east) of the site of the proposed retaining wall. Intervenors, Howard and Evelyn Barbig are residents of Milton, Florida but are owners of lot 4, The Esplanade South, located north of the Fraleys' property and immediately landward (east) of the site of the proposed retaining wall. The Petitioners oppose the granting of the CCCL permit. The Petitioners have expressed their opposition to the granting of the CCCL permit based upon their belief that the construction of the proposed retaining wall will have adverse impacts to the beach dune areas and to the adjacent properties. Specifically, it is their belief that the construction of the proposed retaining wall will accelerate the erosion of the beach dune areas and the adjacent properties. The Petitioners disagree with the conclusion reached by the Department in the final order that, "the activities indicated in the project description are of such a nature that they will result in no significant adverse impacts to the beach dune areas or to the adjacent properties." Intervenors, Fraley and Barbig are in favor of the issuance of the CCCL permit because it will prevent seasonal erosion which results in exposure of, and damage to, the sewer line along The Esplanade, and will provide public access over the shell road within the right-of-way of The Esplanade for those properties between Granada Avenue and Ocala Street that do not have public access from time to time due to the seasonal erosion. On April 17, 1991 the Department advised Venice that the CCCL permit application was determined to be incomplete, and advised Venice of those things needed to make the application complete. Subsequent to this letter, the Department determined that, although the application was not an emergency, it did deserve "fast tracking", and assisted Venice in bringing the application to a "complete" status. On April 25, 1991 the Department issued a Final Order administratively approving CCCL permit number ST-820 for the construction of a wooden retaining wall and shell access road as described in Venice's application. On April 26, 1991 the Department issued a Notice to Proceed Withheld to Venice, which advised Venice not commence construction of the project authorized by the permit until certain permit conditions had been met. This notice also gave notice to those whose substantial interests would be affected by the proposed project of their right to a formal hearing. An engineering assessment was made for this project, and although not a formal written engineering assessment, the engineering assessment did consider all conditions of adverse impacts. In making this assessment, the Department considered and reviewed available aerial photographs, photographs taken of the area of the proposed project site and erosion tables concerning the area. A formal written engineering assessment is not required by statute, rule or Department policy. This assessment also indicated that there are severe impacts due to winter storm events which contribute to the seasonal profile changes. The seasonal beach profile is depicted by the build up of the beach (sand) during the summer months and the removal (erosion) of beach (sand) during the winter months. However, due to an inlet, a major rock-out cropping and the rock grain structures located in the vicinity of the proposed site, there is a limitation on the natural movement of sand along the coast which prevents natural renourishment and results in severe erosion in the area of the proposed site during the winter months. This erosion during the winter months causes the sewer pipes along The Esplanade to be exposed and sometimes broken, and prevents access over the right-of-way of The Esplanade to certain properties located along The Esplanade between Granada Avenue and Ocala Street. The wooden retaining wall is designed to retain sand just landward of the wall and allow a shell access road to be placed on the right-of-way of The Esplanade. The wooden retaining wall will be constructed as follows: (a) 8" x 20' wooden piling will be placed on 6' center and driven to an approximate depth of -14.00 (NGVD); (b) 2" x 8" planking will be attached to the landward side of the piling from the top of the piling (+7.0 NGVD) to a depth of appropriate 7 feet (0.00 NGVD); (c) with a filter "x" cloth covering the planking on the landward side. At the time of the application, the existing beach was +5.0 (NGVD) which would leave approximately 2 feet of the retaining wall exposed on the seaward side. The purpose of the retaining wall is to protect the shoreline in the immediate vicinity of The Esplanade and thereby protect the sewer line and access road which are landward of the seaward (west) right-of-way line of The Esplanade. The proposed wooden retaining wall is to be located as far landward as possible, and will be the minimum size and configuration to protect the sewer line and the shell access road along The Esplanade right-of-way. The retaining wall is designed to be temporary in nature in that its design will not allow it to survive under a major storm event. In that regard, the retaining wall comes within the definition of a minor structure as defined by rule and does not require a formal written review. The access road will enable Venice to establish a public road on public right-of-way for ordinary and emergency utilization by the residents and Venice. Previous attempts by Venice to protect the sewer line by "shoring up" the area with sand bags have proven unsuccessful. A wooden retaining such as the one proposed would be the next logical step to prevent the exposure and damage to the sewer line and still be consistent with the coastal armoring policy adopted by the Governor and Cabinet in December 1990. Dr. Al Deveraux, Bureau Chief, Control Engineering, personally viewed the site prior to approval of the project and waived compliances with certain provisions of the application. There is sufficient competent substantial evidence to establish that: erosion is occurring in the area of the proposed site without the presence of the proposed retaining wall; without the proposed retaining wall, Venice will be unable to prevent that erosion, particularly during the winter storm events, which will result in exposure and damage to the sewer line and lack of public access to certain properties located along The Esplanade between Granada Avenue and Ocala Street; and upon construction of the retaining wall, the beach dune area and the adjacent properties to the south of the proposed project will experience some increase in erosion above that presently occurring, but it will be minimal and will not have a significant impact on the area. The application submitted by Venice was processed and approved in accordance with statutes, rules and Department policy. There is sufficient competent substantial evidence to establish that granting CCCL permit number ST-820 and constructing the retaining wall and access road as set forth in Venice's application would be in the best public interest. The Petitioners' expert witness on coastal engineering concluded that there would be substantial erosion of the beach dune area and adjacent properties south of the proposed retaining wall as a result of constructing the retaining wall. However, this conclusion was not supported by competent substantial evidence. Special permit condition 1 requires Venice to provide the Department with a Sea Turtle Protection Plan approved by the Florida Marine Research Institute in St. Petersburg, Florida. This special condition takes into account the Department's policy for the protection of sea turtles as described in Rule 16B-33.005(9), Florida Administrative Code. The project is consistent with the thirty-year erosion projection and is not located seaward of that line.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is, accordingly recommended that the Department enter a Final Order issuing CCCL permit number ST-820 to the City of Venice, Florida subject to all the special conditions contained therein, and adding one other special condition requiring the City of Venice, Florida to monitor the beach dune system and adjacent properties south of the project site on a semi-annual basis for a period deemed necessary by the Department, and report any accelerated erosion that might occur in that area to the Department for review and action. RECOMMENDED this 27th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1991.
Findings Of Fact On January 19, 1984, Applicant applied to DER, pursuant to Sections 253.123 and 403.087, Fla.Stat., and Chapters 17-3 and 17-4, F.A.C., for a permit and water quality certification to construct a 36-slip docking facility in Baker-Carroll Pointe Waterway (the lagoon). While the lagoon is located in Class II waters, the waters are prohibited for shellfish harvesting. On October 31, 1984, DER issued its letter of intent to issue the requested permits. Protestors timely filed a petition for formal administrative proceedings. Protestors' substantial interest will be directly affected by issuance of the subject permit. The proposed facility will be located as close as 50 feet to the main residential building of Protestors, and the proposed docks will be accessed by way of a seawall which is part of Protestors' common area. The Marina The permit sought by the Applicant would allow it to construct a 36- slip docking facility consisting of 615 linear feet of 5 foot wide marginal dock set 6 feet waterward and running parallel to an existing concrete seawall, with three 5 foot by 6 foot access ramps from the seawall to the marginal dock, and eighteen 30 foot by 4 foot finger piers extending waterward of the marginal dock. Nineteen mooring piles are to be installed. Total dock area is to be 5,325 square feet. The facility will be constructed of pressure treated piles and lumber. No fuel facilities are proposed. Applicant proposes to sell the 36 slips to unit owners in the Surf Colony complex, that is Vanderbilt Surf Colony I, Vanderbilt Surf Colony II and Vanderbilt Surf Colony III, and, if and when constructed, Vanderbilt Surf Colony IV and V. Each of the existing buildings contains 65 units. DER's October 31, 1984, letter of intent, proposed to issue the permit subject to the following conditions: Turbidity screens shall be utilized and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides. The lagoon shall be designated a "No Wake" zone. Markers and/or signs (PVC pipes or piles) shall be erected at the entrance to the shallow cove prohibiting navigation in said area with limits to be approved by the Punta Gorda DER office. No liveaboards shall be allowed at the permitted facility. No boat cleaning, hull maintenance, nor fish cleaning shall be allowed at the permitted facility. Trash receptacles shall be located at approved locations on the dock. The easternmost dock limit shall be lighted at night or equipped with reflective markers to aid navigation. No construction of the project shall take place until appropriate DNR approval is granted for the project per Section 253.77, Florida Statutes. The project shall comply with applicable State Water Quality Standards, namely: 17-3.051 - Minimum Criteria for All Waters at All Times and All Places. 17-3.061 - Surface Waters: General Criteria. 17-3.121 - Criteria - Class III Waters - Recreation, Propagation and Management of Fish and Wildlife: Surface Waters. Applicant has agreed to comply with all conditions established by DER. The Marina Site Baker-Carroll Pointe Waterway (the lagoon) is a partially man made navigable lagoon, with access to Water Turkey Bay which lies to its east. The south side of the lagoon is bulkheaded (along the proposed docking facility site), and the north and west side of the lagoon is composed of dense mangrove forest within the Delnor-Wiggins Pass State Recreation Area (Park). The waters of the proposed project abut and mix with those of the Outstanding Florida Waters (OFW) of the Park. Rule 17-3.041(4)(c), F.A.C. The Park is located on the western and northern shores of the lagoon, and the Park's boundary is located underneath the existing lagoon. The Park has a boat ramp and dock at the mouth of the lagoon. Associated with the ramp are 36 parking spaces for boat trailers. The access channel from Water Turkey Bay varies from 100 to 150 feet wide, the end of the lagoon is approximately 200 feet wide, and the lagoon is approximately 700 feet long. The bulkheaded shoreline has a shallow, 6 foot wide shelf that is covered by a few inches of water during low tide and is colonized by oyster assemblages. Depths increase rapidly from the edge of the shelf to -7 to -8 feet NGVD approximately 40 feet offshore. Depths at the finger piers will be -4.5 to -6.5 NGVD feet. The majority of the central lagoon has uniform depths of -7 to -8 feet NGVD with approximately one foot of silt overlying a firm substrate. Increased depths of -9 to -10 feet NGVD are found in the channel leading from the lagoon to Water Turkey Bay. Channel depths within Water Turkey Bay are -5 feet NGVD or less. Except for a shallow cove at the northwestern extreme of the lagoon, water depths of -5 to -7 feet NGVD are found approximately 30 feet waterward of the mangrove fringe along the western border of the lagoon. In the immediate project site there are no seagrasses or other significant biota. The only productive area within the project site is the shallow six foot wide shelf which parallels the bulkhead and is colonized by oyster assemblages. There are no other significant biota because the area was extensively dredged in the late 1960s or early 1970s. Seagrasses are found in the smaller cove located in the extreme northwest of the lagoon. The western and northern shores of the lagoon are extensively populated by red, black and white mangroves. Aquatic fauna known to inhabit the vicinity, and found in association with the grassbeds in Water Turkey Bay, include lightening whelks, blue crabs, sheepshead minnows, mullet, pin fish, and silver perch. Areas of Concern During construction of the marina elevated turbidity may be expected by disruption of the lagoon sediments caused by installing the facility's pilings. This can, however, be adequately controlled by the use of turbidity curtains during construction. Shading of the benthic environment is a long term impact associated with marinas. While there are presently no seagrasses in the project area, the 6 foot wide shelf which parallels the bulkhead is colonized by oyster assemblages and algae. Since the marginal dock will be placed 6 feet waterward of the seawall, sunlight will be permitted to reach the productive shelf which parallels the seawall. Additionally, since the marginal dock is 5 foot wide, the closest any boat will be to the seawall will be 11 feet. This will result in a buffer zone of 5 feet between the waterward extreme of the 6 foot shelf and any boat moored at the marina. Boats by their very existence and operation present potential negative short term and long term impacts to the environment. Potential damage from existing craft and those which occupy the marina to the seagrass beds in the extreme northwest portion of the lagoon will be eliminated or minimized by the planned installation of markers and/or signs prohibiting navigation in that area. Potential damage from wave action generated by boat operation will be eliminated or minimized by designating and posting the lagoon as a "No Wake" zone. The fueling of boats, hull maintenance and sewage discharge are additional pollution sources associated with marinas. While the proposed marina will have no fueling or maintenance facilities, and while no liveaboards, boat cleaning, hull maintenance, nor fish cleaning will be allowed at the marina, additional conditions must be attached to the permit to eliminate or minimize potential impacts from these potential pollution sources. In addition to the special conditions established by DER, the following special conditions are necessary: All craft docked at the marina shall be prohibited from pumping bilges and sewage into the waters of the lagoon. Ownership and use of the boat slips, or any of the marina facilities, shall be limited to those person(s) who own condominium unit(s) at the Surf Colony complex, to wit: Vanderbilt Surf Colony I, Vanderbilt Surf Colony II, Vanderbilt Surf Colony III, and, if and when constructed, Vanderbilt Surf Colony IV and V. Leasing or any other use of the boat slips, or the marina facility, by any person(s) other than the actual owner thereof shall be prohibited. Since the facility is small, and a full-time dock master is not proposed, limiting ownership and use of the boat slips to owners of condominium units at the Surf Colony complex will provide reasonable assurances that the conditions imposed on the requested permits will be complied with. Prohibiting the pumping of sewage and bilges will provide reasonable assurances that DER standards for bacteriological quality will not be violated. Protestors suggest that oils and greases, including lead found in marine fuels, could cause a degradation of water quality and affect the biota in the area. Protestors presented evidence through Dr. Nancy Nicholson, an expert in marine ecology and marine biology, that oils, greases, and lead could reasonably be expected to be ejected into the water column from boats occupying the marina, and that such pollutants, after entering the sediments, could be expected to enter the food chain. Protestors offered no evidence of the quantities of oil, greases or lead which could be expected to be injected into the water column, or to enter the food chain, other than "they are not large." Petitioner offered no evidence that the oils, greases or lead emitted by the boats occupying the marina would cause or contribute to a degradation of water quality below DER standards, or impact marine resources to such an extent as to be contrary to the public interest. Juxtaposed with the opinion of Protestors' expert is the empirical testimony of DER's witnesses, Terri Kranzer, an expert in water quality and aquatic biology, and Douglas Fry, an expert in dredge and fill impacts on water quality and aquatic biology, that the proposed facility and its operation will not cause or contribute to a degradation of water quality below DER standards and will not impact marine resources to such an extent as to be contrary to the public interest, so long as the Applicant complies with the permitting conditions. Protestors also suggest that turbidity, caused by boats operating from the marina, could cause a degradation of water quality and affect the biota in the area. Protestors' witness, Dr. Nicholson, testified to observing boats increase turbidity within the lagoon. She further performed a Secchi depth test, which measures the distance to which light will penetrate water, in the lagoon area. The background was measured at 42 inches. After the passage of a motorboat through the subject lagoon, the Secchi depth was reduced to 27 inches, and returned to the background level in 2-1/2 to 3 hours. Dr. Nicholson further testified that if the sediments "kicked up" were of an oxygen poor material, that they could scavenge dissolved oxygen from the waters. Protestors offered no evidence, however, which equated the Secchi depth test with the tests and standards established by DER for turbidity and transparency. There was no evidence, assuming turbidity did increase during boat activity, that DER standards for turbidity and transparency would be violated. Further, no evidence was introduced that such turbidity would cause or contribute to a degradation of the dissolved oxygen levels of the lagoon below DER standards. Contrary to the testimony of Dr. Nicholson, Protestors' other witness, William Doherty, a resident of the Surf Colony complex testified that he had operated his own 28 foot boat in the lagoon, and observed other boats operating in the lagoon, and never observed any increased turbidity. Terri Kranzer testified to the same effect. The depth within the lagoon is adequate for navigation, and there should be no increased turbidity caused by boats operating in the lagoon unless they venture into the shallow cove in the northwestern part of the lagoon. Designating the lagoon as a "No Wake" zone, and prohibiting navigation within the shallow cove, would provide reasonable assurances that there would be no increased turbidity associated with the proposed facility or its operation. Finally, Protestors suggest that if the proposed facility is permitted, DER's standard for Biological Integrity, Rule 17-3.111(4), F.A.C., will be violated. Dr. Nicholson conducted a sampling of benthic macroinvertebrates on the bulkhead of the lagoon and on the bulkhead of a nearby yacht basin, in order to calculate a Shannon-Weaver diversity index for both areas. The Shannon-Weaver index for the yacht basin reflected a level of benthic macroinvertebrates of less than 75 percent of that measured in the lagoon. The results of Dr. Nicholson's sampling are not, by her own admission, statistically significant. The lagoon and yacht basic are entirely dissimilar. The lagoon, with its diverse mangrove forests and large opening into Water Turkey Bay flushes well and is an area rich in biology. The yacht basin, on the other hand, is connected to Water Turkey Bay by a small channel and is completely bulkheaded. No valid comparison can be drawn between the lagoon and the yacht basin.
The Issue At issue in this proceeding is what costs, if any, are recoverable by petitioner as a consequence of its successful prosecution of an appeal from the agency's final order heretofore rendered in the above-styled matter.
Findings Of Fact Background On January 14, 1988, respondent, Key Biscayne Limited partnership, formerly known as Biscayne Beach Hotel Association, Ltd. (the "Hotel") , filed an application with Respondent, Department of Natural Resources (DNR), for a coastal construction control line (CCCL) permit authorizing it to conduct construction activities seaward of the Dade County CCCL on Key Biscayne, Florida. As proposed, the Hotel, which currently owns the Sonesta Beach Hotel on Key Biscayne, sought authorization to construct a nine-story 124-unit habitable addition and a one-story non habitable addition, with understructure parking, to its existing facility. Incident to such construction, the Hotel also sought authorization to construct a deck and jacuzz-type hot tub south of the addition, and authorization to excavate approximately 1,400 cubic yards of fill for the pile foundation and caps, and to deposit such fill seaward of the CCCL. Excavation for the foundation would extend a maximum of 177 feet seaward of the CCCL and placement of the excavated material would extend a maximum of 300 feet seaward of the CCCL. On August 11, 1988, DNR issued a notice of intent to approve the Hotel's application and to is sue a CCCL permit subject to the following special conditions: The issuance of the permit placard shall be withheld pending staff receipt and approval of: Two sets of specifications and final certified construction plans accurately dimensioned with elevation referenced to NGVD. Details of the foundation of the 9-story and single- story addition, pile/pile cap/column connections, column/floor slab and roof slab connections, cantilevered balconies, garage floor slab, breakaway walls, storm drainage and domestic waste disposal, and fences shall be included in the plans. Two sets of certified dimensioned site plans showing the location of the control line, existing sea grape trees, the placement of excavated material seaward of the control line, and species of salt-resistant vegetation. The site plans shall be subject to review and acceptance by the Bureau staff. Evidence that written notice has been recorded in the deed covenants and restrictions for the subject property that: The construction of any future rigid coastal protection structures on the property shall be prohibited. The deed covenants and restrictions shall be recorded in the public records of Dade County. Such deed covenants and restrictions shall be enforceable and shall not be altered unless approved by the Department of Natural Resources. The use of gravel or other similar materials or structures with the potential for becoming aerodynamically propelled missiles shall not be included in the construction of the roof. Salt-resistant vegetation such as sea oats, sea grape, panic grass, salt jointgrass, and/or other approved salt- resistant species shall be planted on the fill area. In addition, the permittee shall irrigate and apply fertilizer as appropriate for the particular species planted until the vegetation is established. A 75 percent survival rate of the vegetations shall be ensured and replanting shall be conducted until a 75 percent overall survival rate is attained and until any sizeable barren portions of the area are covered. The excavated fill material to be placed on the beach shall consist of material compatible in grain size and coloration as the native beach sand and shall come from a source located landward of the coastal construction control line. The main structure of the addition shall not extend further seaward than the projected line of the existing retaining wall located seaward of the existing swimming pool. Petitioner, Key Biscayne Council (the "Council"), filed a timely protest of DNR's action. Essentially, the Council contended that the location of the proposed construction would be seaward of the 30-year seasonal high-water line and, therefore, prohibited by Section 161.053(6)(b), Florida Statues; that the proposed construction would adversely impact the beach-dune system and adjacent properties; that construction of similar projects along the coast would have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline; and that the proposed construction failed to comply with the setback requirements or zoning or building codes of Dade County. The Key Biscayne Council In Its petition for formal hearing, the Council alleged that it was a not-for-profit Florida corporation which had, as one of its purposes, the preservation of the environment of Key Biscayne, including its beaches. The proof at hearing failed, however, to demonstrate that the Council enjoyed corporate status but, rather, demonstrated that it was an association formed in November 1987 to give the residents of Key Biscayne a more effective voice on matters of local interest, including the preservation of the environment of Key Biscayne. The Council is governed by nine individuals who are residents of Key Biscayne. These individuals are elected to their positions by the resident members of the association, who are also registered voters in Dade County. 4/ The Council meets at least once each month, and its meetings are open to the public. The agenda for each meeting is published in the local Key Biscayne newspaper, The Islander, the week before each meeting. Of particular interest to the Council is the preservation and protection of the beaches of Key Biscayne which form an important part of that community's and the Council members' lifestyle. To date, the Council has been a motivating force behind the enactment of Dade County Ordinance No. 89-23 discussed infra, which established the CCCL as the mandatory setback line for new construction on Key Biscayne, as well as efforts to fund a cleanup of the beaches, to establish a vegetation dune system, and to protect the sea turtle population. Here, by unanimous vote of the Council, it elected to contest the propriety of DNR's proposal to approve the Hotel's application to construct the proposed additions seaward of the CCCL. Key Biscayne and the surrounding topography Key Biscayne is the southernmost barrier island in what is now a chain of barrier islands extending southward from Miami Beach. Historically, Miami Beach was connected to some extent with Virginia Key, which lies to the north across Bear's Cut from Key Biscayne. In 1835, however, a hurricane struck the area, breached whatever connection existed between Miami Beach and Virginia Key, and formed what is now known as Norris Cut. The topography of the area was further altered in 1905 when construction of Government Cut, the navigational channel for the Port of Miami, was begun. Construction of that cut severed the southern tip from Miami Beach, and formed what is now known as Fisher Island. By 1927, a jetty had been constructed on the north side of Government Cut that created an effective barrier to any along shore sediment transport to the south. Over time the channel in Government Cut was deepened and jetties on its north and south sides extended. Today, the channel is 42 feet deep and extends two miles into the ocean. The north jetty extends 3,000 feet into the ocean, and the south jetty extends 2,750 feet into the ocean. Key Biscayne, which lies to the south of Government Cut and the other islands, is a sand island, roughly "drum-stick" in shape, formed on a limestone base, with elevations ranging from 5 1/2 to 6 1/2 feet. The northern and southern portions of its eastern shore are dominated by Crandon Park and Cape Florida State park, respectively, with development concentrated in the central portion of the island. It is along this central part of the island that the Sonesta Beach Hotel exists, and where the proposed construction is to occur. Immediately north of the existing hotel lies the Silver Sands Hotel and Sand Dollar Restaurant. To the south of the hotel lies the Sheraton Beach Hotel and Beach Club and, further south, the Key Biscayne Hotel and Villas. 5/ Although Key Biscayne is generally subject to mild weather conditions and a low energy environment, it has been subjected to erosion along its eastern shore, with the more severe erosion occurring along the central portion of its shoreline. Seaward of the northern and southern portions of its eastern shore, sand shoals exist which tend to dampen the force of wave energy that would otherwise be exerted against that stretch of coast line. The center of the island is not, however, accorded similar protection and the consequent concentration of wave energy causes sand to be transported from the center of the island to its outer ends. As a result, the central portion of the island, where the subject development is proposed, has historically eroded at a faster rate than the north or south ends of the island. In September 1984, as a consequence of the severe erosion suffered to the eastern shore of Key Biscayne, Dade County was authorized to place over 411,000 cubic yards of sand along approximately 10,000 feet of shoreline on Key Biscayne, and to construct a terminal structure at the south end of the island. The beach was restored by hydraulically pumping sand onto the beach from an offshore dredge and then redistributing the sand with a bulldozer. The resulting beach is characterized as "plan form," and is expected to assume a natural profile over time by responding to the natural forces of wind and waves. The fill pipes which were used to pump sand onto the beach were removed from the area of the Sonesta Beach Hotel on July 3, 1987, and the reprofiling or redistribution of sand in that area was completed around July 20, 1987. On September 26, 1987, the renourishment project was certified complete. The 30-year erosion projection Section 161.053(6)(b) Florida Statutes, provides that DNR may not issue a permit for construction seaward of the CCCL, except for certain specific structures not pertinent to this case, if the structure is "proposed for a location which, based on the department's projections of erosion in the area, will be seaward of the seasonal high-water line within 30 years after the date of application for such permit." The "seasonal high-water line" is a creature of statute, and is defined by Section 161.053(6)(a), Florida Statues, as "the line formed by the intersection of the rising shore and the elevation of 150 percent of the local mean tidal range above local mean high-water." Here, the seasonal high-water line, which is established as an elevation, calculates to approximately 5.4 feet NGVD, and according to the survey dated August 1, 1987, which was submitted with the Hotel's application, currently derives a line that is approximately 375 feet seaward of the proposed construction. To establish the 30-year erosion projection, DNR proposes to horizontally shift the profile which was depicted on such survey in a landward direction a distance equal to the expected erosion rate over a 30-year period. Ordinarily, DNR would calculate a 30-year erosion projection based on historic erosion rates, referred to as "horizontal change rates" in Rule 16B- 33.024, Florida Administrative Code, by reviewing two or more historical surveys taken over a period of time, and measuring the amount of shoreline recession that had occurred during that period. From that figure, an erosion rate would be derived by dividing the number of years which elapsed over the period of record chosen into the amount of shoreline recession that occurred during that period. The result would be the historic erosion rate which, when multiplied by 30, would establish the location of the 30-year seasonal high-water line. However, where, as here, the beach as been renourished, consideration of the effect and performance of such project must also be considered in making the 30- year erosion projection. Rule 16B-33.024(3)(e), Florida Administrative Code. Accordingly, to determine the expected location of the seasonal high-water line in 30 years in this case, it is necessary to establish a historical shoreline change rate and to evaluate the effect and performance of the beach renourishment project. To establish an appropriate historical erosion rate for the subject site, consideration must be given to both the tidal datum relied upon to obtain the rates, and the time period selected as the period of record for analysis of historic shoreline change rates. With regard to tidal datums, the Department's rule provides that horizontal shoreline change rate values may be obtained from one of several available tidal datums, including mean high-water, mean sea level, and mean low-water. Rule 16B-33.024(3)(a), Florida Administrative Code. However, the preferred and more reliable tidal datum to use in assessing historic erosion rates is the line of mean high-water. The time period used in calculating the historic shoreline change rate is required by DNR's rule to extend from the date of the field work for the applicant's survey, which was submitted as part of the application, to the earliest date for which reliable information is available. Rule 16R- 33.024(3)(b) Florida Administrative Code. The historic shoreline change rate analysis should generally include data from points 3,000 feet on either side of the proposed construction, with the change rate for each point averaged for the time period chosen. Rule 16R-33.024(3)(g), Florida Administrative Code. In the event that coastal or shoreline protection structures exist which have influenced the shoreline data for any of the reference points, such influence must be addressed, and if such influence renders the data unreliable the rate data obtained from that point during the period of influence must be rejected. 6/ Rule 16B-33.024(3)(c), Florida Administrative Code. Historic shoreline change rates for the subject project are properly determined by reference to DNR reference monuments R-101 to R-106, located on Key Biscayne. Monument R-104 is the closest monument to the project site, lying approximately 180 to 200 feet south of the site, with the project lying between monuments R-103 and R-104. To facilitate an accurate determination of historic shoreline change rates, DNR has created the Beaches and Shores Growth Management Data Base (DNR Data Base), which consists of data from primary source maps from various governmental agencies, including the United States Coastal and Geodetic Survey, National Ocean Survey, and United States Geologic Survey. These maps have been digitized relative to the DNR monuments, which are located along- the coast at- approximately 1,000-foot intervals, and the resulting data is used to assess shoreline changes over time. Inherent in these shoreline changes are the effects of natural forces on the shoreline, such as wind, wave height, and temperature. Pertinent to this case, the surveys available in the DNR Data Base prior to 1989 were those of 1851, 1919, 1927, 1935, 1945, and 1962. In or about February 1989, DNR contracted with Florida State University to redigitize maps of Key Biscayne. As a consequence, the accuracy of existing data was enhanced and a new survey, the 1913 United States Coastal and Geodetic Survey Map, was added to the DNR Data Base. The addition of the 1913 survey to the DNR Data Base is significant to this case, since the proof demonstrates that the data derived from the 1919 survey is unreliable and should be disregarded. Accordingly, the surveys that may be reasonably relied on in this case are those of 1851, 1913, 1927, 1935, 1945, and 1962. In selecting the appropriate period to determine the historic change rate in this case, several factors should be considered. First, in 1926 a hurricane, which came very close to Key Biscayne, resulted in severe damage to the beach. This storm was reported as at least a 100-year storm event, and is the major storm of record for the area. The 1926 storm, as a naturally occurring event, should be taken into consideration in arriving at an historic erosion rate, but should not be allowed to bias the data. Accordingly, any survey immediately preceding it should not ordinarily be used as a starting point for determining an historic erosion rate, because it would overestimate the historic change rate. Similarly, the immediate post-storm survey of 1927 should not be used as the starting point for determining the historic change rate, since this data would overestimate the effects of the post-storm rebound (accretion), but ignore the erosion caused by the 1926 storm and artificially lower the erosion rate. Finally, the 1962 survey should be the most recent survey used to establish an historic erosion rate, since it marks the end of the predevelopment phase of the study. In the mid-1960's, shoreline structures (seawalls) were erected along portions of the coast, and a beach renourishment project was carried out at Crandon Park in 1969 resulting in filling at DNR Monument R-101. These events render post 1962 data unreliable in assessing an historic change rate. Here, the proof demonstrates that the appropriate time period for analyzing the historic change rate is 1851 to 1962. Based on an analysis of the historic change data for such period, the appropriate historic erosion rate for the project site is -2.3 feet per year. In reaching the foregoing conclusion, the Council's contention that pre-1919 survey data should be rejected in deriving an historic change rate because the construction of Government Cut had, by 1927, interrupted a littoral supply of sand in the neighborhood of 200,000 to 400,000 cubic yards of sand to the south has not been overlooked. However, the more credible proof demonstrates that the littoral transport of sand along this area of Florida's coast is approximately 10,000 cubic yards per year, and that little of that sand ever reached Key Biscayne. Accordingly, the construction of Government Cut had little, if any, impact on Key Biscayne. Also, notable to this conclusion is the fact that an analysis of the historic change rate from 1913 to 1962 calculates an historic erosion rate of -2.5 feet per year, an insignificant difference from that calculated for the period of 1851 to 1962, and the existence of an erosional trend at the central portion of Key Biscayne prior to the construction of Government Cut. Following the establishment of an historic erosion rate, the next step in assessing the expected location of the seasonal high-water line in 30 years in situations where, as here, the beach has been renourished, is a consideration of the effect and performance of such renourishment project. The importance of this analysis cannot be gainsaid, since a beach nourishment project may behave differently than the natural beach, as the nourishment may erode faster or slower than the natural beach or it may accrete. Factors which may cause a beach nourishment project to behave differently than the natural beach include project design, such as the length and width of the project, the seaward slope of the fill material, and the nature of the fill material; and, natural and manmade factors, such as offshore shoals, jetties, and breakwaters. The length and width of a project is very significant in terms of how long the project will remain in place. A project which is short in length will have a tendency to erode at a faster rate than a long project or the natural beach. This loss, referred to as "end losses" or "spreading-out losses," is not necessarily a loss of material from the system, but rather a redistribution of the sediment to the outer edges of the nourishment project. These spreading-out losses are caused by the project's exposure to waves that occur from offshore. As a nourishment project is exposed to waves, it reacts to the force of those waves by spreading out in an alongshore direction, resulting in a reduction in the overall width of the project. A longer project, such as the nourishment project in the existent case, will erode from the ends more slowly than a small project and, consequently, maintain its width and life for a greater period of time. The seaward slope of the nourished beach will also affect the project's performance. When a nourishment project is constructed, the seaward slope of the beach may initially be steeper than the slope which existed prior to nourishment, and may be irregular in shape compared to the natural shoreline. During the slope adjustment process, gravity and waves act on the shoreline to create a more natural slope and shape. During this process, the upland portion of the beach, as well as any irregularities in the shoreline, will experience shoreline recession, with the material being redistributed along shore and offshore. This adjustment process, and the effects it will have on the project's performance, may extend over several years after nourishment is completed. The grain size of the material used in the nourishment project can also affect the performance of the project. If the sediments used to construct the nourishment project are essentially of the same grain size and quality of the sediments which existed on the natural beach, then the nourished beach can be expected to perform, after initial slope adjustment, in much the same manner as the natural beach.. Natural features or manmade structures which may affect the performance of the nourishment project include the shoreline and offshore characteristics of the area that can increase or slow the rate at which the material may otherwise erode, or a groin or natural feature that would tend to confine the project and prevent or minimize spreading-out losses. Here, the nourishment project is a long project, approximately 10,000 feet in length. This factor will contribute favorably to the project's longevity. The material used in the nourishment project is very similar to that which existed on the natural beach. Therefore, after initial slope adjustment, the nourished beach should perform in a manner similar to the natural beach. Finally, the portion of the beach fronting the hotel is bordered to the north and south by areas which are historically stable or accreting. This factor should stabilize the ends of the project, and reduce the alongshore spread which would otherwise occur. In sum, after the slope and shoreline have adjusted to a natural profile and shape, the nourishment project should perform in a manner very similar to the pre-nourishment beach. While the nourishment project should ultimately perform similar to the pre-nourished beach, little time has elapsed since completion of the project for slope and shoreline adjustment or to demonstrate stabilization. Here, the nourished beach was profiled by man (bulldozers), with the reprofiling in she area of the hotel being completed around July 20, 1987. The Hotel submitted its application for the subject permit on January 14, 1988, together with a survey of the area dated August 1, 1987. Based on this survey, DNR proposes to establish the 30-year seasonal high-water line by horizontally shifting the profile depicted on the survey in a landward direction. To predict the performance of the beach nourishment over time, the Hotel offered the results of an analytical computer model run by Dr. Robert Dean, an expert in coastal and oceanographic engineering and coastal processes. That model predicts spreading-out losses," and considers site specific factors that will affect the nourishment project, including pre-existing shoreline conditions, size and quality of the beach fill, volume, length of the project, conditions at the end of the fill, and the affect of wave forces on the coast. The wave data relied upon by Dr. Dean to drive his model was derived from a wave gauge located just north of Government Cut. The wave characteristics at Key Biscayne are, however, dissimilar to those experienced off Miami Beach due to the wave damping characteristics of the offshore area of Key Biscayne. While dissimilar, Dr. Dean opined that the data from Miami Beach could be reliably used as a conservative estimate of the force of waves at Key Biscayne, and that his model would, thereby, present a worst case scenario or prediction of spreading-out loss of sediment on the nourished beach. Based on such analysis, Dr. Dean predicted that shoreline recession on the nourished beach, attributable to spreading-out losses, would amount to 28 feet over the next 30 years, most of which would occur in the early years of the project. When combined with the historic change rate of -2.3 feet per year for 30 years, Dr. Dean calculates that 97 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 102 feet landward of the seasonal high-water line. DNR also made an erosion projection to predict the performance of the beach nourishment over time. In its analysis, DNR relied on monitoring data Dade County had gathered regarding the performance of the project. Such data measured, at various monuments, the amount of accretion or erosion that had occurred within the first 6 months of the project, and the amount of accretion or erosion that had occurred over the next 12 months of the project. The data was not, however, complete for all monuments within 3,000 feet of the hotel, and was otherwise unpersuasive for reasons hereinafter discussed. In performing its analysis, DNR chose to focus on one monument, PL-5- DC, which is located 200 feet north of the hotel. The data at that monument showed that within the first six months the mean high-water line (MHWL) had receded 22 feet, and that over the next 12 months it had receded an additional 10 feet. Assuming a constant rate of erosion based on those two time points, DNR concluded that initial slope adjustment or stabilization would occur within four years, and that shoreline recession on the nourished beach over that 4-year period would amount to -41.6 feet. When combined with an historic change rate of -2.3 feet for the next 26 years, DNR's methodology calculates that 101.4 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 99 feet landward of the seasonal high-water line. 7/ While Dr. Dean's model and DNR's analysis of Dade County data may yield similar results, neither methodology is, under the circumstances of this case, persuasive proof of how the nourishment project will perform or where the 30-year seasonal high-water line will be located. Here, the proof demonstrates that Key Biscayne enjoys a low-energy environment, and that the only force of significance ordinarily exerted along its coast occurs during the winter months when northeasters impact its shoreline. It is this wave energy that would, under normal circumstances, mold or adjust the seaward slope and shoreline of the nourishment project until it reached a more natural slope and shoreline, and after which the rate of erosion would be consistent with the historic change rate. However, since completion of the nourishment project, Key Biscayne has enjoyed unusually mild weather conditions, and the usual winter storms have not occurred. Consequently, the nourishment project has yet to be subjected to the forces of nature which can be reasonably expected to ultimately mold or adjust its seaward slope and shoreline. DNR's conclusion that the nourishment project will reach stability within four years, based on its analysis of the meager data provided by Dade County, is simply unpersuasive. That data, which appears on page 6 of DNR's exhibit 5, showed that at monument PL-5-DC the MHWL had receded 22 feet in the first six months of project existence and 10 feet over the course of the next 12 months. Based solely on these two measurements, DNR calculated a straight line decreasing rate of erosion to conclude that within four years the project would erode at the historic change rate. DNR's methodology and assumption, based on only two points of measure within the first 18 months of project existence, is not credible or persuasive proof of how the nourishment project will perform, and is rendered even less persuasive In view of the mild weather that affected Key Biscayne during such time period. Dr. Dean's opinion, based on his analytical computer model, which assessed shoreline recession on the nourished beach attributable to spreading- out losses, is likewise unpersuasive proof of how the nourishment project will perform. While Dr. Dean considered spreading-out losses and the historic change rate in reaching his conclusion, he failed to address offshore losses of sediment that will occur as the seaward slope of the project adjusts to a more natural profile. Here, the proof demonstrates that the seaward slope was constructed much more steeply than the natural slope, and that in the first 18 months of project existence significant quantities of fill have been lost offshore. At monument PL-5-DC the slope remains steep. Notably, while Dr. Dean calculated a spreading-out loss for the life of the project of 28 feet under what he termed a worse case scenario of wave height, the MHWL at the nourishment project has already receded 32 feet, under mild weather conditions, in the first 18 months of existence. Compared with Dr. Dean's and DNR's conclusions, the Army Corps of Engineers (Corps), which designed the nourishment project, calculated a loss rate of approximately 22,000 cubic yards of fill each year. Should the project perform consistent with the Corps' estimate of project life, it will have receded to the Dade County erosion control line within 10 years, and over the course of the next 20 years to a point such that the proposed addition would lie seaward of the 30-year seasonal high-water line. Under the circumstances of this case, a calculation of the probable location of the 30-year seasonable high-water line, based on the Corps' estimate of the performance of the nourishment project, is more compelling than that of Dr. Dean or DNR. 8/ Impact on the beach and dune system Where, as here, construction is proposed seaward of the CCCL, Section 161.053(5)(a)3, Florida Statutes, requires DNR to consider the potential impacts which the location of the proposed structures or activities may have on the beach-dune system. That system includes the beach, the dunes, and the overwash areas, which are interrelated by the sediment erosion and accretion process. 9/ DNR's analysis of potential impacts to the beach-dune system includes both short-term and long-term impacts of proposed construction. Short-term impacts are those which may arise during construction of a project and are often a concern in sensitive areas, such as those areas characterized by natural dune features and dune-stabilizing vegetation. Long-term impacts of a project may include increased flooding caused by a lowering of dunes and increased erosion caused by a lowering of dunes or by a net loss of sand from the beach-dune system. Impact to the beach-dune system can also be caused by increased pedestrian traffic associated with the construction of a major habitable structure. Pedestrian-caused impacts are, however, a potential concern only in areas where there are dune features and stabilizing vegetation which could be destroyed. In the absence, of these dune features, pedestrian traffic has no significant impact to the beach-dune system. Here, the site of the proposed construction does not have any prominent dune features or stabilizing dune features or stabilizing dune vegetation. In fact, the site is the present location of an asphalt parking lot, which extends 40 feet seaward of the footprint of the proposed construction. Construction of the project will not result in any net excavation of material. Since dunes will not be lowered and there will be no net loss of material, there will be no increased flooding or erosion caused by the project. Under such circumstances, the proof demonstrates that there will be no long-term or short-term impacts to the beach-dune system occasioned by the project. Adverse cumulative impact on the beach-dune system Section 161.053(5)(a)3, Florida Statutes, also requires DNR to assess the potential cumulative impacts to the beach-dune system that may be caused by construction seaward of the CCCL. Here, the proof demonstrates that the proposed project, either singularly or in combination with other existing or similar projects, would not have any adverse impact to the beach-dune system. Impact on adjacent property Construction activities proposed for a location seaward of the CCCL are also analyzed by DNR to assess their impact on adjacent properties. Rule 16B-33.007(2), Florida Administrative Code. Such analysis includes a determination of whether construction activities will be confined on-site; whether a lowering of dunes will occur such that increased flooding on adjacent property could occur; whether elevations on the proposed construction site will be lowered such that flooding of adjacent property could occur; and whether proposed construction, in the event of a major storm event, would potentially increase erosion on adjacent property. Here, the proof demonstrates that construction activities will be confined on site, there will be no lowering of the dunes or elevations, and that there will be no net excavation of materials such that any increased risk of flooding or erosion could occur to either the project site or to adjacent properties. Interference with public beach access One purpose of CCCL permitting is to preserve public beach access. Sections 161.053(1) and (5)(e), Florida Statutes. "Public access" is defined as "the public's right to laterally traverse the sandy beaches of this state where such access exists on or after July 1, 1987." Section 161.021(1), Florida Statutes. The public presently does not have east-west access to the beach at the Sonesta Beach Hotel, and is not entitled to such access by law. The Hotel does not propose to hinder existing north-south (shore parallel/lateral) beach access, and the proposed project would not impede such access until the seasonal high-water line receded to the project. 10/ While the project might limit lateral access at times once the seasonal high-water line recedes, such impact would be de minimis in the instant case since construction of the project would not be seaward of existing structures on the Hotel's property. Compliance with local zoning requirements In order for a permit application to be deemed complete, an applicant must provide DNR with written evidence, provided by the appropriate local governmental-agency having jurisdiction over the activity, that the proposed development does not contravene local setback requirements or zoning or building codes. Rule 16B-33.008(2)(c), Florida Administrative Code. By letter dated February 10, 1988, the Hotel submitted to DNR a letter from Metropolitan Dade County's Department of Building and Zoning which indicated that the site plan for the proposed project was consistent with existent regulations. On April 21, 1988, DNR deemed the Hotel's application complete. While not contesting the consistency of the proposed project with local regulations at the time the Hotel's application was deemed complete, the Council contends that subsequent events have rendered its proposal inconsistent with such regulations. In this regard, the proof demonstrates that the Hotel received site plan approval for the proposed addition from Dade County in November 1988, but that its application for a bull ding permit was denied and returned to the Hotel for further action. To date the Hotel has not sought to further process such application with the County. On April 4, 1989, Dade County enacted Ordinance No. 89-23, effective April 14, 1989, relating to construction seaward of the CCCL on Key Biscayne. Pertinent to this case, the ordinance prohibits the new construction of major habitual structures and severely restricts the construction of nonhabitable structures seaward of the CCCL, absent a variance. At hearing, no proof was offered that any portion of the proposed project would qualify for a variance, or that the nonhabitable portion of the project complied with the requirements of the new ordinance. 11/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the Hotel's application to construct and excavate seaward of the CCCL. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of September 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1989.
