Findings Of Fact Respondents' File No. 76-3-V-90, is an application by J. Edwin Chancey for a variance from the coastal construction setback line in Walton County in an area referred to as Grayton Beach. The application for variance involves approximately 450-470 feet of open beach which the applicant proposes to divide into nine 50-foot wide lots upon which he proposed to construct dwelling houses. As shown by Exhibit 5 the proposed dwellings would be no less than approximately 150 feet and no more than approximately 300 feet seaward of the coastal construction setback line previously established by the Department of Natural Resources for Walton County and the subject beach area. The Department of Natural Resources' staff has recommended to the Governor and Cabinet as the Department of Natural Resources that the variance be granted subject to eight stated conditions set forth in Exhibit 2 of this proceeding. These conditions include the following: "1. No construction will be more than 150 feet gulfward of the most upland property line. All building structures will be constructed on open piling foundations with floor elevations above 14.5 feet mean sea level and pile tip penetration below 5 feet mean sea level. * * * The variance, if approved, will cover the construction of nine 50 foot lots in accordance with the subdivision plans on file in this office. . . . Construction plans on each lot will be submitted individually for staff review and if approved will be issued a variance placard for construction. The placard will be valid for construction commencing within six months and completion within 18 months. In the event septic systems are used, these systems will be installed on the landward most portion of the lots." On July 15, 1975, the Department of Natural Resources approved a variance from the coastal construction setback line requirements for a development with 30 lots proposed for the land involved in this application and an additional and contiguous 930 feet of beach. However, the developer experienced financial difficulties and as a result deeded away approximately two-thirds of the beach front property involved in that variance and abandoned the variance. The developer in that instance was J. Edwin Chancey. The land involved in this proceeding is generally open beach dunes interrupted by lakes. The engineer for the Department of Natural Resources estimated that the elevation of the subject property for which a variance is sought ranges from +3 feet mean sea level to +7 feet mean sea level except for the remnants of several large dunes which range from +10 feet mean sea level to +13 feet mean sea level. The area was somewhat higher prior to Hurricane Eloise which caused the dunes to recede on the average 55 feet and reduced 20 foot dunes to their current elevation of +10 feet to +13 feet mean sea level. Several hundred yards east of the subject property there is a large body of water known as Western Lake. Western Lake is connected directly to the Gulf by an open water course presently located 200-400 feet east of the subject property. This natural water course historically migrates to the west from its present general location in a series of migrations. As its length increases its efficiency decreases so that periodically it moves back to the east to begin again its western migration. This natural water course, in its western migration, has, in the past, encroached on the property for which a variance is herein sought. It appears that, absent an artificial barrier, this natural water course is likely in the future to migrate westward to the subject property. This water course is sometimes deep enough to accommodate an outboard boat and can be 150 feet or more wide. During Hurricane Eloise, the construction site on the property for which the variance is sought had approximately 3 feet to 4 feet of standing water. The Applicant has not provided the Department of Natural Resources with evidence of his ownership of the property for which he seeks a variance. It appears from the evidence presented that the Applicant is not the sole owner of the property, but may be a part-owner with three other persons. The Applicant has not provided the Department of Natural Resources with a duly executed statement from the owners of record consenting to the work, activity, or construction for which the variance has been requested. No statement of the specific reasons why the Applicant feels that the variance should be granted has been received by the Department of Natural Resources. There have been communications between staff members of the Department and the Applicant or his representatives, but apparently these communications dealt with the details of the requested variance rather than the reasons why the variance should be granted. The Department of Natural Resources has not received a recent topographic survey showing the plot plan of the proposed construction. The Department has received a topographic survey and a plot plan showing the position of the proposed nine lots. (See Exhibits 5 and 9) Exhibit 5, on Lots 1, 2, 6 and 8 does show what appears to be the plot plan of some structure, though apparently, the Applicant does not necessarily intend to construct dwellings in accordance with those drawings. The Department of Natural Resources has not received construction plans showing cross sections of all sub-grade construction or excavation, elevations of the lowest floor and the first dwelling floor, or the details and justification for any proposed waste water discharge unto, over, under or across the beach and/or dunes. The Applicant has verbally communicated to the Department that if septic tanks are used on the subject property they will be located as far landward as possible with no discharge toward the Gulf. No further details of this proposed wastewater discharge have been submitted to the Department. According to the engineer for the Department there will be sub- grade construction. However, the plot plan (Exhibit 5) showing the location of the proposed nine lots is apparently the only plan received by the Department with regard to this request for a variance. No evidence was presented showing that the Department has waived any of the requirements for an application for variance set out in Section 16B- 25.05, F.A.C. The engineer for the Department whose responsibility it was to initially review and make recommendations with regard to the application for variance testified that he did not believe that he had the authority to waive the above requirements and that he did not know who, if anyone, within the Department had that authority. He did not make any recommendation that the requirements be waived and did not know if the requirements had been waived. The application for variance which is the subject of this proceeding was received by the Department of Natural Resources no earlier than November, 1975, and was given the Department File No. 76-3-V-90. The application is a series of documents rather than a formal application. The Applicant had sought variances for a larger piece of property which included the subject property which variances would have allowed up to 128 dwelling units. Those requests for variances predated that which is the subject of this proceeding and were apparently given different file numbers by the Department of Natural Resources and were considered separate applications. The Petitioners, W. A. Covell and Bonnie Covell, own property in the community of Grayton Beach upon which there is a house. Their property is approximately 700 feet or more from the open beach property for which a variance is sought and does not abut the subject beach property. The Covell's think that construction of the nine dwelling units which would be allowed by the variance would lower the value of their property. Petitioners Jennings N. Byrd and Mrs. J. N. Byrd own property in the community of Grayton Beach upon which there there is a dwelling house. Their property is approximately 750 feet to 800 feet from the beach property for which a variance is sought. Mr. Byrd testified that he felt his interest in objecting to the variance was the same as that of any other Florida citizen. He further testified that he did not mind his view being obstructed by the dwelling units proposed by the Applicant. All Petitioners and their families have used the open beach area of which the property for which a variance is sought is a part, for many years as a picnic, sunning and swimming area. Petitioners G.A.P. Haynes and Betty H. Haynes own, in the name of Mrs. Haynes, property which is immediately adjacent to Applicant's property. The Haynes own a dwelling house which is located approximately 100 feet from Applicant's property. It is the opinion of the Haynes that the construction of the nine dwelling units in front of their house as proposed by the Applicant would lower the value of their property. The Haynes further indicated their concern that construction on the beach in front of them, because of the apparent inherent instability of the shifting sands, would have an adverse impact upon their house in times of high wind and water. They recounted seeing water standing, as the result of storms other than hurricanes, on Applicant's property and near their house.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By application dated March 9, 1981, and received by the DNR's Bureau of Beaches and Shores on March 13, 1981, respondent sought a permit to construct five single-family dwellings on five 64-foot-wide parcels of land located seaward of the established coastal construction control line (CCCL) on Grayton Beach. Attached to the application were site plans, an affidavit of ownership and a warranty deed showing respondent Roberts to be the owner of the subject property. (DNR Exhibit 1) Question number 5 on the permit application required the "specific reasons the applicant feels that the permit should be approved and why construction seaward of the control line . . . is considered necessary for reasonable use of the property." The answer provided by the applicant to this question was "the landward property line is located 150 feet seaward of the control line. Therefore, no upland property is available on the site for development." (DNR Exhibit 1) By form letter dated March 16, 1981, DNR notified respondent Roberts that his application for a permit was incomplete and that two further items of information were necessary before his application could be considered. One item was written evidence that the proposed project would not contravene local setback requirements or zoning or building codes. The other item was detailed site, grading, drainage and structural plans and specifications for the proposed structure. These plans were to be certified by a registered Florida engineer or architect. (DNR Exhibit 2) On or about March 31, 1981, the DNR received the certified architectural plans from the project architect, who is registered in the State of Florida. These plans, as well as the site plans submitted by the engineer, contained the signature and seal of the architect and the engineer. They each intended their signature and seal to constitute a certification that, in their opinion, the drawings or plans were in compliance with all statutes, rules, local ordinances and/or other regulations which govern the project. A certification of documents by the placement of signature and seal of an engineer or architect is the commonly accepted practice and usage in those professions. It is not the policy of DNR to require an itemized certification reciting every requirement of the DNR rules. By form letter dated April 6, 1981, the DNR notified the applicant that written evidence of compliance with local government regulations was still lacking. (DNR Exhibit 4) On April 13, 1981, DNR received a letter dated April 9, 1981 from the Walton County Attorney advising that "The Board of County Commissioners of Walton County has no local setback requirements or zoning or building requirements which would prohibit the proposed activity as submitted to the Bureau." (DNR Exhibit 5) This letter satisfied the requirement of Rule 16B-33.08(1)(c), Florida Administrative Code, that the proposed project would not contravene local setback requirements or zoning or building codes. Full scale copies of topographic and site plans were received by the Bureau of Beaches and Shores on April 15, 1981. The application for a permit was deemed complete as of April 15, 1981, (DNR Exhibit 7), and respondent Roberts' agent was notified by letter dated June 23, 1981 that the DNR Executive Director had recommended to the Governor and Cabinet (the agency head of the DNR) approval of the application. (DNR Exhibit 10) The completed application reflects that the five single-family dwellings are to be supported by treated timber pilings with an underside minimum elevation of +14 feet (NGVD). The Federal Base Flooding Elevation for Grayton Beach is +9 feet (NGVD). The architect has certified that the proposed dwelling units are designed to withstand 140 mile per hour winds. The seaward- most dwelling of the five is a maximum of 263 feet seaward of the coastal construction control line, and the applicant's entire parcel of land is located over 150 feet seaward of the control line. The project is located approximately 230 feet from the mean high water line. The project also includes the construction of a private road, septic tanks and drainfields. The dune system in front of the proposed structure will offer substantial protection to the structure against storm and wave action. The excavation proposed includes that necessary for the placement of the pilings, the septic tanks and the drainfields, and the construction of the proposed driveway. The proposed drainfields will extend partially above existing grade and fill material i11 be placed over them. The driveway consists of a 16-foot asphalt paved road located landward of the proposed dwellings. The dunes will be reduced in height where the driveway is to be constructed. It is not clear from the testimony or the documentary evidence adduced at the hearing where the parking of vehicles belonging to residents or guests of the five units is to occur. While there was testimony from Mr. Truitt to the effect that no net loss of sand will occur and that the project will involve more of a balancing of grade as opposed to excavation, the engineering plans submitted with the application illustrate at least nine rather large areas of cut and fill associated with the driveway, septic tanks and drainfields. The project engineer had considered no studies on the topography or littoral trends of this specific site, had no knowledge of engineering data regarding adjacent properties and had not reviewed any data regarding major storms on the subject project site. The engineering plans submitted as a part of the application contain a diagram illustrating five separate 750 gallon septic tank systems, one for each dwelling unit, with the "drainfield [for each unit] to be constructed in accordance with Chapter 10D-6, F.A.C." (DNR Exhibit 1) The larger scale engineer's drawing submitted to DNR on April 15, 1981, gives more specific information regarding the location and depth of the below grade drainfields on the seaward side of the structures. A DNR interoffice memorandum dated June 1, 1981, reflects that the applicant's agent agreed in a telephone conversation that, "if possible, he would move the septic tank (750 gal) and related drainfields to the landward side of the buildings." (Joint Exhibit 1) The Cabinet agenda item dated later in time, however, notes that the "septic tanks (750 gallon) and drainfields will extend an additional 50 feet seaward of each dwelling." (DNR Exhibit 8) The exact proposed location of the septic tanks and drainfields was not clarified at the final hearing, nor was sufficient evidence adduced concerning the justification for the proposed discharge system. Evidence concerning the availability of any existing alternatives to the system proposed by the applicant was not adduced, nor was evidence presented concerning storm water discharge. As of the time of the hearing in this matter, the applicant had no plans for heating or cooling the five dwelling units. When asked at the hearing what "justification" the Bureau of Beaches and Shores received for the proposed waste water discharge system, Mr. Clifford Truitt, the Bureau's chief engineer and the person responsible for review of this application, replied in two ways. First, he stated that the fact that the property was located entirely seaward of the CCCL was justification for the discharge system. However, he admitted that a "dry sanitary system" would be a better alternative. Later, Mr. Truitt stated that "justification" for the domestic waste system is only required when there is a beach level discharge. Mr. Truitt was accepted as an expert witness in the area of coastal engineering. His opinions regarding the proposed project were based upon his review of aerial photography of the Grayton Beach area and comparison of topographic profiles of the area, his review of the engineering and topographic information submitted with the application itself and his familiarity with the project location. No evidence was adduced that engineering data concerning storm tides related to shoreline topography was considered by Mr. Truitt or anyone else. No specific studies exist regarding the stability, littoral trends or the erosional history of the proposed site and surrounding area. The project site has been the subject of other permit applications considered by the DNR, and Mr. Truitt was of the opinion that a mitigating feature of the present application was that "the present proposal has the lowest density and least extension seaward of the control line of any proposal to date." (DNR Exhibit 8) It was Mr. Truitt's opinion that the dwelling unit structures were adequately elevated and designed to adequately resist the natural forces associated with a 100-year return interval storm event and would not increase the threat of damage or danger to nearby structures. Factual evidence concerning the 100-year storm event was not presented at the hearing. Mr. Truitt further opined, without the aid of engineering data or the studies mentioned above, that the proposed construction would not affect the natural shoreline fluctuations or the stability of the dunes in the area. Such an opinion contains no factual basis in the record of this proceeding, and thus is not sufficient evidence upon which to make a similar finding of fact. On various sporadic occasions, a waterway or pass connecting Western Lake to the Gulf of Mexico runs in a westerly direction in the vicinity of the applicant's property. At times, this watercourse has been wide and deep enough to allow swimming, diving and the passage of small boats. The witnesses who testified about this watercourse were not qualified as surveyors or experts in estimating or calculating the exact location of that watercourse relative to the proposed site, and there was no testimony that such an event had occurred within the past twenty years. At least two witnesses testified that the last time they could recall the watercourse or pass traversing or abutting the applicant's property was in the late 1950s. The proposed project site has been covered with storm waters on at least two occasions in the past seven years. No evidence was adduced at the hearing concerning the substantial interests in this permit application of named petitioners Colonel G. A. P. Haynes, Mr. and Mrs. Roy Cawthon, Mrs. Kate Florence, Mrs. Burton Murray, Colonel and Mrs. Lee Fry, Mrs. Laney Ellis and Mrs. Randall Jones. Mrs. G. A. P. Haynes, one of the petitioners in this proceeding, owns and resides on property immediately adjacent to the project site, and presently entertains an unbroken view of the beachfront. She is concerned with potential sewage problems and damage to her residence from flying debris caused by wind or storm should the proposed construction be approved. Mrs. Haynes was also concerned about the potential adverse effect of the proposed construction on the value of her adjacent property. Petitioner Burton Murray lives to the north of the project site, at least several hundred feet away. His prime concern was that no structure could survive at that location and that the project would therefore be a waste of money. Petitioner Elizabeth Hayes Jones (named as Ms. Lisbeth Haas in the petition) lives across the street and to the east of the project site. Her residence was completely destroyed by hurricane and has since been rebuilt at the same site. She feels that the applicant's project site is not safe for construction, and fears storm damage to her home from the buildings if constructed.
Recommendation Based upon the findings of fact and conclusions of law recited herein it is RECOMMENDED that the application for a coastal construction control line permit to construct five single-family dwellings on Grayton Beach be DENIED. Respectfully submitted and entered this 25th day of May, 1982. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982. COPIES FURNISHED: Jerry W. Gerde, Esquire Davenport, Johnston, Harris, Gerde & Harrison, P. A. 406 Magnolia Avenue Panama City, Florida 32401 W. Paul Thompson, Esquire Thompson and Adkinson P. O. Drawer 608 DeFuniak Springs, Florida 32433 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32303 Dr. Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
Findings Of Fact On February 10, 1988 Harry B. Williams made application to the Department of Natural Resources for permission to construct a single-family dwelling with appurtenant structures at 2831 Ponte Verda Boulevard South, South Ponte Verda Beach, Florida. The permit sought was a coastal construction control line permit which would allow construction seaward of that line in the direction of the Atlantic Ocean. A copy of that permit application may be found as Department's Exhibit Number 2. Associated with the permit application was a description of the plans related to the dwelling and other structures. This application was received by the Department February 11, 1988. Following a review of the permit application the Department deemed it complete as of February 22, 1988. A site inspection was made of the property and a report was prepared by an employee with the Department, a Mr. Partel. The report may be found as Department's Exhibit Number 4, which includes photographs of the prospective building site, together with the surrounding property to include dwellings to the north and south of the lot where the Williams home would be built. As commented on by Mr. Partel the applicant had intended at that time to construct a single-family dwelling a maximum of 75 feet seaward of the coastal construction control line. Although this evaluator, Mr. Partel, felt that the applicant had requested the right to construct a dwelling which was in line with existing construction, he felt that it could be moved further landward and that it could be limited in deck size and that a cantilevened form of construction was preferable to the concrete called for in the plans set out in the application information. It was also suggested that the sea oats that were in the way of the construction should be relocated seaward on a dune face slope where a denuded area is found. In this connection, the Department is empowered to make suggestions to the applicant concerning the minimization of the adverse impacts on the beach-dune system. Following the site visit of February 26, 1988 the Department wrote the applicant on March 11, 1988 and indicated concerns about the proximity of the dwelling to the crest of the dune. A copy of this correspondence may be found as Department's Exhibit Number 5. In the correspondence the Department asked the applicant to move the proposed dwelling 10 feet landward and that the 10 foot wide concrete patio, on the seaward side, be modified to a 10 foot wide wooden deck. The letter told the applicant that the approval would be conditioned on the sea oats and other dune grasses that would be disturbed by the proposed structures being replanted seaward of the project in the denuded areas of the dune. The applicant agreed to these changes. The relocation of the structure 10 feet landward took it away from the beach- dune system. The modified site plan that was brought about by the suggested changes is found Department's Exhibit Number 6, a copy of that amended site plan. With the relocation the construction would be 66 feet seaward of the coastal construction control line. An aerial photograph of the site location reference the basic design of the dwelling and the proximity to the relevant or existing coastal construction control line is found as Department's Exhibit Number 3. In responding to the suggestions to the change in location the modified site plan which moved the dwelling 10 feet landward was received by the Department on August 1, 1988. Under this arrangement the applicant had agreed to waive the requirements of Section 120.60, Florida Statutes pertaining to the obligation by the Department to review and decide its action of grant or denial within 90 days of date of receipt of the application. With the changes being made to the location of the proposed dwelling and associated structures and the type of construction materials used in the patio on the seaward side, together with the relocation of the plant life, the impact on the beach-dune system and adjacent property is acceptable. There is no adverse impact on the beach-dune system or on the adjacent properties. The location of the proposed dwelling and its associated structures as it relates to the 30-year erosion projection under the terms of Section 161.053, Florida Statutes, in this instance, shows that the dwelling would be approximately 55 feet landward of the 30-year erosion projection and not at risk. Calculations related to this finding may be found within Department's Exhibit Number 7. The existing coastal construction control line dates from January 28, 1988. Although the original application referred to the previous line of 1978 in describing the site plan and survey, the reason for this was that the site plan and survey were prepared prior to the establishment of the January 28, 1988 line, as allowed. In the course of the hearing appropriate reference was made to the January 28, 1988 line as it relates to the anticipated location of the dwelling and other structures as modified at the instigation of the Department. As contemplated by Section 161.053(5)(f), the Department required the applicant to provide mitigation of the- effects of the construction as a condition to a grant of the permit. Those permit conditions may be found in the Department's Exhibit Number 8, a copy of a proposed final order. Included within those would be the requirements for erection of a temporary construction fence on the site to protect existing native dune vegetation from the impacts of that construction, in addition to the requirement of the dune vegetation relocation. This would involve the irrigation and application of fertilizer to those plants with the expectation that a certain percentage would survive over time as described in this special condition. This project will not pose a hazard to the sea turtle and its hatchlings and habitat for the sea turtles and hatchlings. Ms. Butler, Petitioner in this cause, has a beach home which is north of the Williams property separated by a 10 foot easement between those properties. In mid July, 1988 Ms. Butler offered a written statement in opposition to the placement and size of the proposed dwelling together with other remarks and asked that the Department provide her information and documents pertaining to the application under the authority of Chapter 119, Florida Statutes. On August 10, 1988 the Department dispatched a letter of inquiry to surrounding property owners to include Ms. Butler and solicited remarks concerning the Williams application to be provided on or about August 20, 1988. Ms. Butler had received certain documents from the Department concerning the application sometime in the middle of August 1988. On August 18, 1988 Butler made known her objection to the project on the grounds that the concerns about the 30-year erosion line and the size and placement of the dwelling. On September 2, 1988 the Department informed Ms. Butler of the intent to grant the permit to Mr. Williams. A copy of that correspondence may be found as Petitioner's Exhibit Number 5. This led to a timely request for hearing by Ms. Butler stating her opposition to this project. The request was received in accordance with the Department's advice that the request must be filed by September 26, 1988. Based upon the prehearing conference and the discussion of those issues which would be allowed for consideration as stated in the request for hearing and the statement of particulars that attend the request for hearing, commented on by the hearing officer at the commencement of the final hearing, and found within the transcript and further stated in the issues portion to this Recommended Order, this case has been carried forward. The presentation made by the Petitioner, after the Department and applicant had offered their cases, was through her testimony and that of employees of the Department together with exhibits she offered. The testimony of the Department employees concerned the procedural techniques that the agency pursued in reviewing the application at issue. Ms. Butler described her concern for her property, and the area between her property and the Williams property. This is the 10 foot easement area which is sparsely vegetated and low. As a consequence she was concerned that her property might be destroyed with the advent of the Williams construction. She has no expertise in her own right nor did she present expert opinion from other witnesses which would tend to bear out her concern. She also expressed the concern that the Williams home, in its dimensions, was too large and that it should be relocated an additional 10 feet back from the adjusted placement following the Department's criticism of the original application. In effect, she would have the house placed 20 feet away from the sea as compared to the original site plan submitted with the application on February 10, 1988. Again, there is no competent evidence presented which would support her theory that this further relocation was needed. Her expression of concern for the sea turtles and their hatchlings and habitat was not well founded. Turtles are known to nest on the sandy flat beach area and the construction of the Williams property will not interfere with that area adjacent to the ocean.
Recommendation Based upon a consideration of the facts and the conclusions of law reached, it is RECOMMENDED: That the Department enter a Final Order which grants a coastal construction control line permit to Harry B. Williams, Jr., based upon his modified plan required by the Department and upon the special permit conditions announced in the proposed final order, a copy of which is found as Department's Exhibit Number 8. DONE and ENTERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1989.
The Issue Whether the permit application of Clifford S. and Maria Ray (the "Rays") meets the statutory and rule requirements for the Department of Environmental Protection ("DEP" or the "Department") to issue to the Rays a permit to construct a multi- family dwelling and related structures seaward of the coastal construction control line ("CCCL") on their property in Brevard County?
Findings Of Fact Legislative Intent re: Beaches and Coastal Barrier Dunes The Legislature has declared that the beaches and the coastal barrier dunes in this state, subject by their nature to severe fluctuations, represent one of the most valuable resources of Florida. See § 161.053(1)(a), Fla. Stat. The Legislature has further declared that it is in the public interest to preserve and protect the beaches and dunes from imprudent construction because it can "jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access." Id. The Legislature has therefore directed the Department of Environmental Protection "on a county basis along the sand beaches of the state fronting the Atlantic Ocean [and other salt water bodies]" to "establish coastal construction control lines." Id. The "Coastal Construction Control Line" A line of jurisdiction, rather than a line of prohibition, the Coastal Construction Control Line (the "CCCL or the "Control Line") is defined in Chapter 62B-331 of the Florida Administrative Code. The Control Line is: the line established pursuant to provisions of Section 161.053, F.S., and recorded in the official records of the county, which defines that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions. Fla. Admin. Code. R. 62B-33.002(12). The Department's Office of Beaches and Coastal Systems has regulatory authority to permit or deny construction seaward of the Control Line pursuant to statutory and rule criteria. This proceeding concerns the exercise of that authority in the form of issuance of a permit for activity seaward of the Control Line in Brevard County. Brevard County's Control Line The Control Line in Brevard County was established by the Department of Natural Resources, an agency of the state and a predecessor of DEP, in 1981 (the "1981 CCCL"). A second Control Line in Brevard County was established in 1986, again by the Department of Natural Resources. It is approximately 150 feet landward of the 1981 CCCL. It will be referred to in this order as "the CCCL" or "the Control Line." The line established in 1981 will be referred to as the "1981 CCCL," to distinguish it from the Control Line established in 1986, the Coastal Construction Control Line applicable to this proceeding. The Parties Mrs. Pope Petitioner, Carole C. Pope, owns with her husband James M. Pope, oceanfront property located at Wilson Avenue, Brevard County, Florida, where the Popes reside part time. The Popes' property has a Cocoa Beach mailing address, but is not within the city limits of Cocoa Beach. Littoral to the Atlantic Ocean, the Popes' property was identified in the pre-hearing stipulation in the Rule-related Cases (discussed in this Order's Preliminary Statement) as "Lot 11, Block 101, Avon by the Sea as described in Plat Book 3, page 7 [presumably the Official Records of Brevard County] and east to Ocean, except the west 13 feet of Lot 11." See Final Order, Pope v. Department of Environmental Protection et al., Case No. 03-3860RX, paragraph 7, page 9. The Popes have two duplex units on their property. Built in the 1950's, they consist of concrete foundations, block walls, and 10-foot-high flat roofs. Mrs. Pope and her husband have retained the native, salt-tolerant vegetation that surrounds the duplexes. Protective of the property because it serves to enhance and stabilize the primary/frontal dune, it also adds to Mrs. Pope's enjoyment and use of her property. She enjoys the native flora, an integral part of the habitat of native fauna (gopher tortoises and indigo snakes, for example) that she enjoys watching. She particularly enjoys feeding and interacting with the sociable scrub jay. The Department and its Office of Beaches and Coastal Systems The Department is responsible for the administration of Parts I and II of Chapter 161, Florida Statutes, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control lines; activities seaward of the coastal construction control line; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties." § 161.053 (21), Fla. Stat. Pursuant to its rule-making authority in Section 161.053 (together with other specific authority), Florida Statutes, the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)." The Office is in the Department. Fla. Admin. Code R. 62B-33.002(11). Permits for construction or other activities seaward of the construction control line, such as the permit in this case, are issued pursuant to Section 161.053, Florida Statutes, by the Program Administrator of the Bureau of Beaches and Wetland Resources on behalf of the Department. See Respondents 1, Vol. 2, Tab 22. The Department has not delegated Chapter 161 permitting authority to Brevard County. The Rays Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No. BE-1083, preliminarily issued by the Department in its final order of September 19, 2003. The property consists of four 50-foot-wide lots, Lots 12, 13, 14 and 15 in Avon by the Sea. Lot 12 is immediately adjacent to Mrs. Pope's property. Some of the native vegetation on the property has been disturbed by the planting of sod and installation of an irrigation system seaward of the Brevard County coastal setback line and the Control Line. The activity is the subject of administrative enforcement actions by the County and DEP. Although government claims of violations had not been resolved finally as of the date of hearing, the Rays have not resisted the claims. The Permit was issued to the Rays under the authority of Section 161.053, Florida Statutes. It authorizes activities on the Ray property seaward of the CCCL. This activity includes the construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry wall and an exfiltration trench, as described in more detail in the section of the Permit entitled "PROJECT DESCRIPTION." Respondents Ex. 1, Vol. 2, Tab 22, Permit No. BE- 1083, p. 2-3. The Department was not aware of the claims of violations made against the Rays referred-to above at the time that Mr. Tammisetti, the engineer assigned to review the permit file initially, recommended that the permit be issued. Had Mr. Tammisetti been aware of the claims he still would have recommended issuance of the permit. Coastal Systems and Fixed Coastal Cells The term "Coastal System" is defined by the Department in its rules: "Coastal System" is the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and structures. Fla. Admin. Code R. 62B-33.002(13). Within the coastal system are "fixed coastal cells," also defined by Department rule: "Fixed Coastal Cell" is a geomorphological component of the coastal system which is closely linked internally by active physical processes and is bounded by physical features which exercise a major control on refraction patterns or which compartmentalize or severely limit longshore sediment such as headlands or inlets. Fla. Admin. Code R. 62B-33.002(24). Within and adjacent to a fixed coastal cell of Florida's coastal system lie sea, shore, beach, dune system, vegetation, uplands and structures with which this proceeding is concerned. The Beach and Dune System within the Fixed Coastal Cell The Ray property and the Pope property are located in a fixed coastal cell that extends from Canaveral Inlet (north of R014, one of a series of coastal monuments installed by the state) southward to Monument R050. The community in which the property is situated is a "Coastal Uplands: Beach Dune" community characterized by a beach and dune system. There is one primary/frontal dune with a height at the top of the bank of about 13.4 feet NGVD seaward of the proposed project. The portion of property on which the project is sited is between 7.3 and 10.7 feet NGVD. The most recent DEP design wave height elevation for R015 is 14.2 feet NGVD, higher than the existing dune elevation at the Ray property. Much of the Ray property behind the dune is lower in elevation than the elevation of contiguous properties, the likely result of persistent cutting of native vegetation that acts to intercept wind-blown sand as it moves along the shoreline. Beach and Dune Data in DEP File BE-1083 In the application review process, Mr. Tammisetti submitted a memorandum dated May 24, 2001, to Mr. McNeal. The memorandum appears to have been a form with blanks into which information was inserted or handwritten close to the appropriate blank. For example, under Section I., of the form "PROPOSED PROJECT" is "A. Project Location:", followed by a description with blanks left for number of feet, direction (north, south, east, west) reference monument number, county and project address. Handwriting close to the blanks leads one to understand or gather that it intends to communicate the following statements: The location of this project is approximately 100 feet N to 103 feet S of the Department of Environmental Protection's Reference Monument R-15, in Brevard County. Project Address: Harding Ave, Cape Canaveral. This is within the local jurisdiction of Brevard County. Respondents 1, Vol. 2, Tab 13. The form also contains Section II., "CHARACTERIZATION OF BEACH/DUNE SYSTEM". The section calls for three categories of characterization: A., a general description; B., beach topography in terms of shoreline alignment, berm width in feet, berm elevation in feet (NGVD), direction of net littoral transport, volume of net littoral transport in cubic yards per year, and general conditions; and C., Primary Dune/Bluff Topography with dune width in feet. None of the information called for by this section has been filled in on the form. At hearing, Mr. Tammisetti testified2 that berm width was 220 feet and the berm elevation ranged from 3 to 10 feet NGVD. He testified that the direction of littoral transport was north to south but he did not know the volume of net littoral transport. He stated that the "general site condition" was an eroding shoreline. He estimated the dune width at between 30 to 40 feet. These facts and figures exist under an overarching consideration. The beach near R015 that fronts the Pope and Ray property is critically eroding.3 Vegetation on the Ray Property There is a sea grape cluster and numerous palm trees on the Ray property. The seaward most continuous line of native salt-resistant vegetation or the "vegetation line" is near the line at the toe of the slope of the dune bank depicted on the topographic survey drawing submitted as part of the application. Nanette Church, at the time an employee of Brevard County, visited the site on July 1, 2003. She documented the presence of fresh sod and a new irrigation system installed seaward of the County's coastal setback line, a line parallel to and 25-feet landward of the 1981 CCCL. Two days later, DEP Inspector Gene Verano conducted a site inspection and documented the placement of sod and the installation of an extensive irrigation system. On July 31, 2003, the Department under the signature of Jim Martinello, an Environmental Manager in the Bureau of Beaches and Wetland Resources, issued a warning letter to Mr. Ray with regard to "POSSIBLE UNAUTHORIZED ACTIVITIES SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE." The letter reads, in part, Pope 3. [I]t appears that you have again been engaged in unauthorized activities on your property located approximately 100 feet north to 100 feet south of the Department of Environmental Protection's reference monument R-15, in Cocoa Beach, in Brevard County, Florida. The possible violation consists of the destruction/removal of native vegetation and placement of sod and an irrigation system seaward of the coastal construction control line without benefit of a permit from the [department.] The sod seaward of the CCCL has a negative effect on the stability of the dune system. A weakened dune system allows for storm surge and overwash to breach the dune and cause washout on the landward side of the dunes. Brevard County has not yet issued a land clearing or landscape permit to the Rays. A "Brevard County Land Development Site-Plan Approval" with an approval date of December 30, 2003, warned, "[i]t is the responsibility of the Owner/Engineer of Record to contact Office Natural Resources for a Land Clearing/Landscaping Permit." Respondents' 1, Vol. 1, Tab 12. The Rays are not contesting County or DEP enforcement actions relative to the land clearing, sod placement, and irrigation system installation. Project Description The project proposed by the Rays is to be located on their property in the unincorporated area of Brevard County known as "Avon-by-the-Sea," in the vicinity of Department monument R-015. The project is known by Brevard County as the Ray Condos and also as the Michelina Condominium. The location of the multi-family dwelling relative to the Control Line is "[a] maximum of 105.56 feet seaward." Id. Its exterior dimensions are "209.67 feet in the shore normal direction by 84 feet in the shore-parallel direction." Id. The type of foundation is "Pile." Id. There is no mention in the Permit of the height of the building. The swimming pool is described in the Permit in detail with regard to its dimensions and location (a maximum of 101.49 feet seaward of the control line), the type of construction and its maximum depth: six feet. Excavation/Fill for the project is described in terms of volume of excavation, its location, volume of fill as replacement, and location of fill. The Excavation/Fill description is subject to Special Permit Condition 6. Among other provisions of the condition, the fill is to be "from a source landward of the control line and shall consist of sand which is similar to that already on the site in both grain size and coloration." Id., p. 4. Other permitted structures and activities are listed and described in the Permit with reference to special permit conditions: A wooden beach/dune walkway structure of dimensions 174 feet shore-normal by 4 feet shore-parallel is to be located seaward of the control line. See Special Condition 7. A 4-foot to 14-foot swimming pool deck attached to the periphery of the swimming pool is to be located a maximum of 105.96 [feet] seaward of the control line. See Special Permit Condition 2.1. Paver-block parking area on the south side of the proposed dwelling. Masonry walls along the north and south property lines to extend a maximum of 105 feet seaward of the control line. See Special Permit Condition 2.2. An exfiltration system trench on the south side of the proposed dwelling. Among nine special conditions in the Permit are that no work can be conducted until a DEP "notice to proceed" has been received by the Rays. Another is that prior to the issuance of such a notice "two copies of detailed final site and grading plans and specifications" shall be submitted including two sets of landscape drawings. Id., p. 3, Special Permit Condition 2. See id., 2.3. The landscape plan must be submitted to Brevard County for approval under the Permit's special conditions. Given Brevard County's requirement that the Rays secure a Land Clearing/Landscaping Permit, there will be an ongoing process that poses the potential to ensure that the Rays' project will be designed to minimize the impact on native vegetation. The process also may require a restoration plan, as well, for the impact to native vegetation caused by the sod and the irrigation system. The Rays have submitted such a plan to the County. Relationship of the Proposed Project to the Pope Property The proposed multi-family dwelling is sited 10 feet south of the northern property line (the line that serves as the southern boundary of the Pope property). Ten feet is the minimum setback from adjacent property allowed by the county. The duplexes on the Pope property are situated in a range from 3.5 to 4.5 feet from the property line (the border with the Ray property.) The project, therefore, is proposed to be as close as 13.5 feet of the Pope duplexes. If built, running the length of the duplexes, it would create a relatively narrow space between the proposed structure and the Popes' duplexes that ranges from 13.5 feet to 14.5 in width. The Application The Rays submitted their CCCL permit application to the Department through their agent, Joyce Gumpher. On January 24, 2003, Ms. Gumpher executed a certification "that all information submitted with this application is true and complete to the best of [her] knowledge." Respondents Ex. 6, APPLICATION FOR A PERMIT FOR CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE OR FIFTY-FOOT SETBACK. The application was received by DEP on January 27, 2003. Additional information was requested by the Department. On April 21, 2003, the Department deemed the application complete. During the application process, several plan sheets were revised. Revised plan sheets were submitted after the application was deemed complete (see Respondents' Ex. 6, July 29, 2003 plans and September 5, 2003 plans) and once prior to DEP's determination of its completeness. (see id., April 7, 2003 plans). Review of the Application On August 26, 2003, Mr. Tammisetti submitted a memorandum to Mr. McNeal that recommended approval of the application with special permit conditions. The memorandum, similar in form to the memorandum submitted on May 24, 2001, except for the lack of Part II., is entitled "Description of Beach and Dune System Fronting the Subject Property and an Analysis of Impacts to be Expected From the Proposed Construction." Respondents 1, Vol. 2, Tab 20. It describes the proposed project but, lacking Part II., it neither characterizes nor describes the beach/dune system. Nor does it analyze the impacts of the proposed project other than to provide the "final comment" that "[t]he proposed project is landward of line of construction and 30-year erosion project. Impactive shore- parallel coverage is approximately 72%." Id., p. 3. Under its rules, after reviewing all information required, the Department is mandated to: Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effect of the construction on the coastal system and marine turtles. * * * Require siting and design criteria that minimize adverse impacts and mitigation of adverse or other impacts. Fla. Admin. Code R. 62B-33.005(3). As found earlier, the file in BE-1083 does not contain any documentation that the Department conducted the impact assessments required by the rule. Nonetheless, the Department based its evaluation on the portion of the fixed coastal cell from just north of R013 to approximately 400 feet south of R017 depicted on Respondents' 7. Respondents' 7 Respondents' 7 is an aerial photograph of developed uplands and off shore waters of the Atlantic Ocean in between which is the shore line and a stretch of beach in Brevard County. The sandy beach in the photo runs from north to south from Monument R013 to approximately 400 feet south of Monument R017, five monuments in a series set by the state along the Brevard County coast. The photograph is data the Department reviewed to determine if existing structures established a "reasonably continuous and uniform construction line closer to the mean high water line than [the coastal construction control Line]." § 161.053(5)(b), Fla. Stat. (This "reasonably continuous and uniform construction line" will be referred to as the "Construction Line" in this order.) The Pope property and the Ray property both straddle the Construction Line. The photograph shows four structures (the "Four Structures") that were determined by DEP to establish the Construction Line. Two are to the north of the Ray property; two are to the south. Of the two structures to the north, the closest is between 400 and 450 feet north of the northern boundary of the Ray property. It sits between Monument R015 and R014. The other structure to the north used to establish the Construction Line lies between Monument R014 and R013. Its southernmost corner is approximately 1200 feet to the north of the northern boundary of the Ray property. The roof of the closest of the Four Structures to the south, lying between Monument R015 and R016, viewed from the air above is rectangular indicating the structure to have a rectangular footprint. Positioned at an angle to the coast, its southeastern corner is along the 1981 CCCL. That corner is approximately 400 feet south of the southern boundary of the Ray property. The second structure to the south sits between R016 and R017. Its northernmost corner is roughly 850 feet south of the southern boundary of the Ray property. The Application Rule Florida Administrative Code Rule 62B-33.008(4), entitled "Permit Application Requirements and Procedures" (the "Application Rule"), requires that the Rays' application contain certain specific information, including that identified in subsection (f): Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of the application. The rule further calls for the topographic survey drawing to include specific information such as "[t]he location of any existing vegetation line on the subject property." Fla. Admin. Code R. 62B-33.008(4)(f)9. The topographic survey drawing submitted as part of the application in January of 2003 reveals a survey date of "7/17/02." Respondent's Ex. 1, Sketch of Boundary and Topographic Survey, Lots 12-15, Block 101, Avon by the Sea, Brevard County, Florida. Other than the date of the survey, the evidence at hearing did not reveal when the fieldwork in support of the survey was conducted.4 In all likelihood the fieldwork was conducted close to July 17, 2002, but obviously prior to July 17, 2002. Whether the date of the application is considered to be the date of Ms. Gumpher's certification (January 24, 2003), or the date of its receipt by DEP (January 27, 2003), it does not depict "field survey work performed not more than six months prior to the date of the application." January 24, 2003, is six months and one week after July 17, 2002. January 27, 2003, is six months and 10 days after the date of the survey. The Vegetation Line The topographic survey drawing submitted as part of the application did not meet precisely the requirements of the Application Rule in several other ways. For one, it did not label the location of "any existing vegetation line on the subject property." At hearing, the Rays submitted a revised copy of the topographic survey drawing (still dated "7/17/02"). The revision labels a line indicated on the originally submitted topographic survey drawing as "TOE OF SLOPE" (within a few feet of the top of the dune bank) as "TOE OF SLOPE AND VEGETATION LINE." Thus, it is apparent that the originally submitted topographic survey drawing depicted the vegetation line; it merely failed in its labeling of the vegetation line. The Department, once it became aware of the omission of a reference to a vegetation line in the original submission, waived the requirement for one. At hearing, Mr. McNeal testified that the waiver was authorized by subsection (7) of the Application Requirements and Procedures Rule: The Department recognizes that the requirements specified in paragraphs 62B- 33.008(4). . . (f) . . ., F.A.C. may not, due to the project circumstances, be applicable or necessary to ensure protection to the beach and dune system. In such cases, the applicant shall, as part of the application, identify those requirements and state the reason why they are inapplicable. The Department shall waive requirements that do not apply. Fla. Admin. Code R. 62B-33.008(7). There is no evidence of record that the Rays informed DEP of a position that the "location of the vegetation line" on the topographic survey drawing was a requirement inapplicable or unnecessary to ensure protection to the beach and dune system.5 Nonetheless, construing its waiver authority to be broader than authority limited to cases in which identification of inapplicable and unnecessary requirements had been made by those seeking DEP waivers, the Department waived the requirement. The waiver was based on knowledge gained from the experience of DEP employees. The employees (Mr. Tammisetti and Mr. McNeal) knew that the vegetation line would be close to the top of the dune bank line and the toe of slope line, both of which were located on the topographic survey drawing.6 Respondents' 2 supports the Department's waiver since it labels the vegetation line where the Department roughly expected it to be. Complete Dimensions and Distance Perpendicular The Application Rule further demands that the topographic survey drawing contain: 15. Accurate dimensions and locations of the foundation outlines of any structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of Section 161.053(5)(b) or 161.052(2)(b), F.S., and the distance perpendicular [the "Distance Perpendicular"] from the CCCL or 50-foot setback to the seaward corners of the foundations of any major structures . . . . Fla. Admin. Code R. 62B-33.008(4)(f). The application contained the dimensions and locations of the two (2) duplexes located on the Pope property, that is, the adjacent area to the north of the Ray property. With regard to the adjacent area to the south of the Ray property, the application contained the seaward dimensions and locations of the major structure that makes up the Discovery Beach Resort structure. The topographic survey drawing did not contain the dimensions of the complete footprint of the Discovery Beach Resort. Nor did it contain the distance perpendicular from the CCCL or 50-foot setback to the seaward corners of the foundations of all major structures depicted. Mr. McNeal noticed that required elements were missing from the application. When he made the permitting decision, he waived them pursuant to a delegation of authority from the Office of Beaches and Coastal Systems. Delegations of Authority Office of Beaches and Coastal Systems The Director of the Office of Beaches and Coastal Systems has delegated certain authority to subordinates in the Office of Beaches and Coastal Systems with respect to the CCCL permitting program. The delegations, as reflected in a document entitled "Delegations of Authority, OFFICE OF BEACHES AND COASTAL SYSTEMS" (Pope Ex. 1), is to "the Director of Office of Beaches and Coastal Systems, or his/her designee." Id., 3.a. As the administrator of the CCCL program within the Bureau of Beaches and Wetlands Resources, Mr. McNeal has been delegated authority under Delegation "OBCS-9" (id., p. 14 of 24), to "[t]ake final agency action on permit applications . . . pursuant to Sections . . . 161.053 . . ., Florida Statutes, and Rule 62B-33, F.A.C., [subject to exceptions immaterial to this proceeding.]" Id. The authority so delegated is not without limitation. Among limitations enumerated and express in the Delegations of Authority document is that "[t]the exercise of any delegated authority shall conform with all statutes and rules applicable to the DEP." Id., 3.a. Waivers Pursuant to Delegated Authority Pursuant to the authority over final agency action on CCCL permit applications, Mr. McNeal, as the head of the CCCL Program in the Office of Beaches and Shores, waived the depiction of the location of the vegetation line on the topographic survey drawing, the full dimensions of the Discovery Resort in the adjacent area to the south of the Ray property and the notation of the Distances Perpendicular. He did so because the information contained on the topographic survey drawing was sufficient, in his view, to allow the Department to perform the calculations and analyses as part of the application process that would be served by a review of the topographic survey drawing. An example has been alluded to in this order. Based on years of collective experience, Mr. McNeal and Mr. Tammisetti concluded it was reasonable to assume the vegetation line would be very near the toe of the slope line in relation to the dune bank. Their assumptions were proved correct at hearing. The dimensions and locations of the major structures located immediately north and south of the proposed project (the Pope duplexes and the Discovery Resort structure) and the Distances Perpendicular were required to be included on the topographic survey drawing, but they were not intended by the Rays to establish a Construction Line. Establishment of any such line is governed by Section 161.053(5)(b), Florida Statutes: If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing [the CCCL], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department, if such structure is also approved by the department [and other conditions are met]. A Construction Line The Rays contend in their application and DEP agrees that the Four Structures establish a Construction Line. Once such a line is established provided the structures are not duly affected by erosion, the Department is conferred with the discretion to permit a proposed structure along the line seaward of the CCCL under certain circumstances. See § 161.053(5)(b), Fla. Stat. Among those circumstances, the permit "shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided [by statute.]" § 161.053(5)(b), Fla. Stat. Furthermore, by rule of the Department, written evidence from local government must be provided that the location of the proposed structure along a Construction Line seaward of the CCCL is consistent with the Local Comprehensive Plan. See Fla. Admin. Code R. 62b-33. Written evidence that Brevard County regards the Rays' proposed site to be consistent with Local Comprehensive Plan and not contrary to local setback requirements or zoning codes was provided by Brevard County to the Department. Establishment of a Construction Line Whether a Construction Line can be established for a proposed project is unique to the project and its coastal location. To establish such a line, the Office of Beaches and Coastal Systems may rely exclusively on information provided by the applicant for a permit to construct along such a line. The Office may also refer to its own database of aerial photographs (as it did in this case) and other data with regard to the State's coastal systems. The Construction Line running across the Ray property accepted by DEP is nearly identical to the 1981 CCCL. In contesting the establishment of the Construction Line, Mrs. Pope makes a number of points, several of which are worthy of discussion. For one, in 1993, the Department considered an administrative challenge brought by Mrs. Pope to the CCCL permit for the construction of the Days Inn Tower (now Best Western) hotel (one of the structures used by the Rays to establish a Line of Continuous Construction). See, OR-1, Pope v. Department of Environmental Protection et al., Agency Final Order dated May 9, 1994, DOAH Case No. 93-4560 (the "1993 Pope Case.) The Pope duplex had been found to be three or four blocks north of the property for which the permit was sought. If her property had been found immediately adjacent to the Days Inn Tower property, Mrs. Pope would have been accorded standing to contest issuance of the permit to the Days Inn Tower applicant. The hearing officer had recommended that Mrs. Pope not be accorded standing under the rule because her duplex property was not "immediately adjacent" to the Days Inn Tower parcel. Since Mrs. Pope's parcel was separated by at least what has been identified in this proceeding as the Ray property and the property of the Discovery Resort, she did not qualify for standing under the DEP Rule. Nevertheless, Mrs. Pope was afforded the opportunity to acquire standing by proving that her substantial interests would be affected by issuance of the permit. The hearing officer concluded that her attempt in this regard failed.7 The Department accepted the hearing officer's recommendation that Mrs. Pope be determined to have no standing, in part because her property was not "immediately adjacent" to the Days Inn Tower property. Mrs. Pope also asserts that the Four Structures along the 1981 CCCL do not establish a Construction Line on the basis of the testimony of her witness, Dr. Harris. Dr. Harris opined that the structures to be used to establish the Line of Continuous Construction, if one exists, are not the four used by DEP that are in the area of the Ray property but the structures on the two pieces of property closer to the Ray property, that is, immediately adjacent: the Pope property to the north and the Discovery Resort property to the south. The easternmost point of the structure on the Pope property is approximately 50 feet landward of the 1981 CCCL and extends approximately 100 feet seaward of the Control Line. The structure on the Discovery Resort property to the south is along the Control Line. See Respondents' 7. The line that Dr. Harris would establish does not run parallel to the shore line, the 30-year erosion line, the 1981 CCCL or the Control Line. It would run at an angle of approximately 15 degrees from the easternmost point of the Pope duplexes (the "point of beginning") about 425 feet to the easternmost point of the Discovery Resort structure. The point on the Discovery Resort structure (at the end of the line) is approximately 100 feet seaward of the point of beginning. If these structures are to be considered in the determination of whether a Construction Line exists as Mrs. Pope argues, then continuing the line to include the Four Structures would yield broken lines rather than a reasonably "uniform" and "continuous" line. The Department did not consider the structures in the property immediately adjacent to the Ray property to break the line it determined is established by the Four Structures. It ignored other structures as well between the northernmost and the southernmost of the four structures. Mrs. Pope, therefore, describes the Construction Line established by the Department as "imaginary" and without a factual basis. This point is one of opinion. The Construction Line is neither imaginary nor without a factual basis. It has a factual basis in precisely the data used by DEP: the aerial photograph that shows four major structures between Monuments R013 and R017, Respondents' 7, along the 1981 CCCL. The disregard for the Pope duplexes and the Discovery Resort structure as well as other structures in the areas north and south of the Ray property is a matter that falls within professional opinion and Department expertise. The establishment of the Construction Line is justified by the data DEP examined: Respondents' 7 (on which the Four Structures were identified and circled by Mr. Tammisetti at hearing.) The greater weight of the evidence is that DEP's determination of the establishment of the Construction Line should not be disturbed. It is, moreover, not surprising that such a line exists. One would expect that structures built after 1981 but before 1986 would be located along the 1981 CCCL and that structures that followed (such as the Discovery Resort structure) would be built along that Construction Line. Post-establishment of a Construction Line Establishment of a Construction Line does not entitle an applicant to a permit to build along that Construction Line. After a Construction Line is accepted by DEP as established, an applicant must satisfy three remaining sets of conditions expressed in Section 161.053(5)(b), Florida Statutes. Section 161.053(5)(b), Florida Statutes A discretionary exercise Once a Construction Line is established, an application for a permit to allow a proposed structure is subject to the discretion of the Department: "a proposed structure may, at the discretion of the department, be permitted along such line on the written authorization of the department, if such structure is also approved by the department." ii. Local Requirements The Department has no such discretion, however, if the construction or activity would "contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than . . . requirements [in chapter 161]." Id. To this list, the Department, by rule, has added consistency with state-approved Local Comprehensive Plans. See Fla. Admin. Code R. 62B- 33.008(4)(d). Before exercise of department discretion and inquiry into compliance with local requirements, there is a more fundamental condition that must be demonstrated by the applicant: the existing structures that establish the Construction Line must not have been unduly affected by erosion: If in the immediate contiguous or adjacent area a number of existing structures have established a [Construction Line], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line . . . [h]owever, the department shall not contravene [local requirements] . . . equal to, or more strict than, those requirements herein. § 161.053(5)(b), Fla. Stat. Unduly Affected by Erosion The parties differ in their view of the testimony and evidence introduced at hearing with regard to whether structures that establish the Construction Line "have not been unduly affected by erosion." Id. Neither DEP employees nor the Rays' witnesses visited the shoreline between R0-13 and R-017 to evaluate the four structures that establish the Construction Line and the effects of erosion, if any.8 Mrs. Pope asserts in her Proposed Recommended Order, "[n]o evidence or testimony was offered as to whether the structures considered by DEP were affected by erosion." Petitioners' Proposed Recommended Order, p. 24. In contrast, Respondents cite to the testimony of Mr. Boehning and Respondent's 7 with the assertion, "[t]he existing structures, which form the line of continuous construction, have not been unduly affected by erosion." Respondents' 7 supports the claim of Respondents. It reveals a distance perpendicular from the Construction Line to the dark, wet sand along the shore to be approximately 275 feet. This distance encompasses white sandy beach that is approximately 175 feet and a vegetated area that is approximately 100 feet. The finding that the structures that establish the Construction Line are not unduly affected by erosion does not mean that there are not erosion problems in the area. In fact, as found earlier in this order, the beach depicted on Respondents' 7 is "critically eroding." The stretch of beach depicted in the aerial photograph that is Respondents' 7 has undergone considerable fluctuation since 1963 through erosion and beach nourishment. From 1972 to 2002, for example, the location of the mean high water line at R-015, the monument closest to the Pope and Ray properties, has varied by 206 feet from a low in September of 1972 to a high of 369.3 feet in April of 2001. Dr. Harris wrote this in a report introduced into evidence: The beach profile data show that at R-15 the beach and dune are subject to erosion. From 1972 to 2002 the variation in the MHW shoreline position was 206 feet. Beach nourishment and inlet sand by-passing operations were performed between some of the time periods, and are largely responsible for the periodic beach and dune widening. Even with the beach nourishment project, dune erosion continues to be a problem, and although the recent beach nourishment project greatly widened the beach, the position of the dune remained the same. The FDEP design wave height elevation for a 100-year storm is 14.2 feet NGVD for R-15, which is higher than the existing dune elevation. This means that the upland properties would experience storm surge, flooding and wave action during a 100-year storm. Pope 16. Projects of beach nourishment (placement of sand through human activity) were performed in 1972, 1986 and 2001. The need for beach nourishment and re-nourishment reinforces the status of the beach near R-015 as "critically eroding" and underscores the importance of protecting as much of the dune system as possible. That the beach is critically eroding is not inconsistent with a finding that the structures that establish the Construction Line are not unduly affected by erosion. Whether or not due to the 1986 and 2001 nourishment projects, the evidence of record is that, despite the status of the beach as critically eroding, the structures that establish the Construction Line are not unduly affected by erosion. Not Contrary to Local Requirements On December 30, 2002, a site-plan approval was issued by Brevard County with regard to "RAY CONDOS aka MICHELINA CONDOMINIUM" with a site address of "420 Harding Avenue, Cocoa Beach, FL 32931." Respondents' 1, Vol. 1, Tab 12, second page. Signed by the designee of the Director, Permitting and Enforcement, the development order is entitled, "BREVARD COUNTY LAND DEVELOPMENT SITE-PLAN APPROVAL" and contains the following: The site plan to which this approval is attached has been reviewed by affected County divisions, departments and agencies and has been determined to comply in general with the Brevard County Code of Ordinances and Comprehensive Plan Elements. * * * It is the responsibility of the Owner/Engineer of Record to contact Office of Natural Resources for a Land Clearing/landscaping Permit Two (2) sets of As-Built drawings must be provided to Land Development prior to the Issuance of a C.O. Id. The development order concludes with a statement related to the vested right of the Rays to develop in accord with the site plan: If a Certificate of Occupancy has not been issued for the principal structure by Dec. 30, 2005 the three (3) year vesting period, beginning with the date of site development plan approval, expires and said site plan shall become Null and Void. Only those phases of the development that have an active and valid building permit may be completed after the three-(3) year time period. Id. The reference in the site-plan approval to the "Brevard County Code of Ordinances" does not include building codes. The reference covers local setback requirements and zoning codes. Mrs. Pope appealed the issuance of the site-plan approval to the Brevard County Board of County Commissioners (the "Board"). Her appeal was heard over three meetings of the Board on May 6, 2003, June 8, 2003, and August 12, 2003. At the conclusion of the August 12, 2003, proceedings on the appeal, the Board voted unanimously to accept the staff recommendation to deny the appeal. An unnumbered resolution of the Board "DENYING THE APPEAL OF JAMES AND CAROLE POPE . . . PERTAINING TO THE MICHELINA CONDOMINIUM SITE PLAN" was produced by Mrs. Pope at the hearing together with the following statement of a Deputy Clerk for the Board: This is to advise that the Office of the Clerk to the Board of County Commissioners does not have any correspondence indicating a copy of the Findings of Fact on Michelina Condominium was forwarded to Mr. or Mrs. Pope. Pope 7. The resolution is signed by the Chairperson of the Board. Immediately below the signature block there appears the following: "(As approved by the Board on August 12, 2003)." Pope 8. The document is not stamped received by the Clerk of the Board or the County Clerk's Office, nor is there other clear indicia that the order has been rendered through a filing with the Clerk's office. On its face, however, appears an undated attestation of a deputy clerk under a seal of Brevard County that appears to attest to the Chairperson's signature. As of the dates of the final hearing in this proceeding, Mrs. Pope had not sought judicial review of the decision of the Board. At hearing, on the strength of the signed resolution denying Mrs. Pope's appeal of the site-plan approval and the site-plan approval, itself, and the apparent finality of the approval, Mrs. Pope was ruled estopped from presenting evidence that the Permit contravened local setback or zoning requirements or was inconsistent with the Local Comprehensive Plan. The establishment of a Construction Line, that the structures establishing the line are not unduly affected by erosion, and the collateral estoppel of Mrs. Pope's claim that construction or activity seaward of the Control Line along the Construction Line is contrary to local requirements, clears the way for the exercise of Department discretion as to whether to issue the permit. Department Discretion The Department's exercise of discretion must, of course, take into consideration the beach and dune system within the fixed coastal cell in which Ray property and the Pope property are located. No other conclusion could be gathered from the statements of legislative intent and the statutory scheme. Lest there be any misunderstanding, the Department has codified its policy statement on such matters: (1) The beach and dune system is an integral part of the coastal system and represents one of the most valuable natural resources in Florida, providing protection to adjacent upland properties, recreational areas, and habitat for wildlife. A coastal construction control line (CCCL) is intended to define that portion of the beach and dune system which is subject to severe fluctuations caused by a 100-year storm surge, storm waves, or other forces such as wind, wave, or water level changes. These fluctuations are a necessary part of the natural functioning of the coastal system and are essential to post-storm recovery, long term stability, and the preservation of the beach and dune system. However, imprudent human activities can adversely interfere with these natural processes and alter the integrity and functioning of the beach and dune system. The control line and 50-foot setback call attention to the special hazards and impacts associated with the use of such property, but do not preclude all development or alteration of coastal property seaward of such line; Fla. Admin. Code R. 62B-33.005, Department Policy Statement on Permits. The exercise of this discretion is guided by criteria under rule. Among those criteria are those found in 62B- 33.005(4)(g): The construction will not cause a significant adverse impact to marine turtles, immediately adjacent properties, or the coastal system unless otherwise specifically authorized in this rule chapter. Chapter 62B-33, Florida Administrative Code, defines the term "Impacts" to include separate definitions for the terms "Adverse Impacts," "Significant Adverse Impacts," "Minor Impacts," and "Other Impacts": "Impacts" are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows: "Adverse Impacts" are impacts to the coastal system that may cause a measurable interference with the natural functioning of the system. "Significant Adverse Impacts" are impacts of such magnitude that they may: Alter the coastal system by: Measurably affecting the existing shoreline change rate; Significantly interfering with its ability to recover from a coastal storm; Disturbing topography or vegetation such that the system becomes unstable or suffers catastrophic failure; . . . * * * (d) "Other Impacts" are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access. Fla. Admin. Code R. 62B-33.002(30). Minimization of Impacts and No Significant Adverse Impacts The site selected on the Ray property for the proposed project poses impacts to Mrs. Pope's duplexes during a storm event such as a 100-year storm. Because of the shore- parallel dimension of the proposed structure (84 feet), storm- generated waves and storm surge would be concentrated into the relatively narrow gap between the proposed structure and the duplexes. The resulting hydrodynamic load would cause scouring of the foundations of the duplexes. The proposed project has "frangible" or "breakaway" ground level walls. They would pose the potential for generating waterborne missiles that, hydro-dynamically propelled, would damage the duplexes. The proposed project was designed in accordance with the American Society of Civil Engineers 7 Code ("ASCE-7") and most pertinently (since referenced in the Construction Line Statute), the Florida Building Code. But the Building Code does not take into consideration a proposed structure's design or proposed site on an adjacent property or the adjacent property's structures. The proposed project, moreover, is not designed and sited to mitigate aerodynamic loading on Mrs. Pope's duplexes. During high-wind conditions, there will be a number of wind effects on the duplexes caused by the proximity of the proposed project: gust loading, high turbulence shedding, and vortex shedding among others that can be reasonably expected to cause structural impacts to the duplexes such as suction loads on roofs and eaves, flying debris and window breakage. The proximity of the proposed structure to the Pope property will have a shading effect that will cause adverse impacts on the growth of native coastal vegetation on the Pope property. As a result, there will be a reduction in the interception of wind-driven sand by the vegetation that enables it to develop healthy, deep root systems that add to dune stability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: an impacts assessment be conducted as required by Florida Administrative Code Rule 33.005(3)(a); that the proposed project be re-sited to mitigate the impacts that its siting now poses to the Pope Property and the Popes' duplexes; that the proposed project be permitted to be constructed up to the Construction Line, provided that the permit is supported by both the impacts assessment and a re- siting of the proposed project to mitigate wind, water and shading impacts; and if the proposed project is not supported by an adequate impacts assessment, or if it cannot be re-sited to mitigate the impacts to the Pope Property, that the permit be denied. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2004.
The Issue At issue is whether a moratorium, adopted by the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees), constitutes an invalid rule. If the moratorium on authorizations for use of sovereignty, submerged land in connection with development of current unbridged, undeveloped coastal islands is determined to constitute a rule, the secondary issue to be resolved is whether the rule is an invalid exercise by the Board of Trustees of delegated legislative authority.
Findings Of Fact The parties stipulated at the final hearing to the facts set forth in paragraphs 1-10, below. Stipulated Facts The parties do not object to the standing of Petitioners and Intervenors for the limited purposes of this proceeding only and any subsequent appeal. On August 22, 1989, the Board of Trustees accepted a staff report on policy and programs affecting Florida's coastal islands. The Board of Trustees also approved a temporary moratorium on authorizations for use of sovereignty, submerged land that would facilitate development of currently unbridged, undeveloped coastal islands until such time as the Division of State Lands of the Department of Natural Resources (Division) could adopt a policy for such requests. On December 19, 1989, the Board of Trustees deferred consideration of an interim policy governing the use of sovereignty, submerged lands adjacent to unbridged coastal islands. On February 6, 1990, the Board of Trustees voted to again defer consideration of an interim policy governing the use of sovereignty, submerged lands adjacent to unbridged coastal islands until after the issue was reviewed at a Cabinet workshop. On May 8, 1990, the Board of Trustees extended the temporary moratorium announced on August 22, 1989, and directed staff to begin rule making on a rule to serve as interim policy until a comprehensive policy and rule governing coastal islands could be adopted. On June 12, 1990, the Board of Trustees approved a draft of proposed rules relating to the leasing of state-owned lands adjacent to undeveloped coastal islands and directed staff to notice the rules for adoption, hold a series of public hearings and return to the Board of Trustees for final action by September. The proposed rules (Rules 18-21.003 and 18-21.004, Florida Administrative Code) were noticed in the Florida Administrative Weekly on August 10, 1990, and public hearings were held in Tallahassee on September 4, 1990, Ft. Pierce on September 5, 1990, and Naples on September 6, 1990. In August, 1990, petitions were filed challenging the temporary moratorium as a nonrule rule, and the proposed rules, arguing that the Board of Trustees' actions constituted an invalid exercise of delegated legislative authority. On October 9, 1990, the Board of Trustees accepted a status report on the proposed amendments to Rules 18-21.003 and 18-21.004, Florida Administrative Code, relating to the management of unbridged coastal islands. On October 23, 1990, the Board of Trustees considered amendments to the proposed rule based on comments made at the public hearing and written comments submitted to the agency. However, prior to accepting the proposed changes the Board of Trustees approved a request by the Governor's Interagency Management Committee (IMC) for additional time to review the proposed rule amendments. The IMC considered the proposed amended rule on November 29, 1990. Public comments were taken at that meeting which resulted in the IMC recommending that further changes be made to the proposed amended rule. On December 18, 1990, the Board of Trustees approved the withdrawal of the original rule concerning development of coastal islands, authorized changes to the proposed rules and directed staff to notice for adoption the proposed rules as amended. In addition, the Board of Trustees voted to continue the temporary moratorium until the adoption of a coastal barrier island rule. Other Facts The initial moratorium applied to those coastal islands subject to direct or indirect wave, tidal and wind energies and which provide primary or secondary protection to the mainland. Further, islands were to be considered undeveloped if unbridged (not connected via bridge to another upland) and either had no docking facilities authorized by the Trustees, or overall development density consisted of less than one permanent structure per five acres of upland. On May 8, 1990, the Trustees extended and modified the prior moratorium. The effective date of the moratorium remained August 22, 1989, and the following exceptions were created: Notwithstanding the moratorium, the Board shall allow the repair or maintenance of existing utility lines that cross sovereignty submerged land, so long as such maintenance and repair do not provide for an upgrade in capacity to serve additional customers, except to maintain public safety or as ordered by the Public Service Commission. The moratorium shall not prohibit the construction of two- slip private residential docks meeting the requirements of Chapter 18-20.004(5)(b), F.A.C. Notice of the moratorium was not provided and an economic impact statement was not prepared as required by Section 120.54, Florida Statutes. Affected persons were not given a point of entry to challenge the moratorium before it became effective. The moratorium affects sovereignty submerged lands statewide and affects all applicants who seek use of such land to facilitate development of undeveloped, unbridged coastal islands. The moratorium is an agency policy statement of general applicability, which is applied and is intended to be applied with the force and effect of a rule of law. The moratorium continues in effect at the present time with general applicability to a statewide class of persons seeking use of state-owned submerged lands adjacent to unbridged, undeveloped coastal islands as defined in paragraphs 11. and 12., above.
The Issue Whether Florida Administrative Code Rule 62B- 33.008(4)(d) should be determined to be an invalid exercise of delegated legislative authority? The Rule requires that an application for a permit for construction seaward of a coastal construction control line ("CCCL") contain "written evidence, provided by the appropriate local government agency . . ., that the proposed activity . . . does not contravene local setback requirements, zoning, or building codes and is consistent with the State approved Local Comprehensive Plan." Whether a statement alleged to have been made by an employee of the Bureau of Beaches and Wetland Resources in the Department of Environmental Protection ("DEP" or "the Department") violated Section 120.54(1)(a), Florida Statutes? The alleged statement is to the effect that in determining if structures littoral to the coast have established a continuous construction line closer to the mean high water line than the CCCL, the Department uses a 1000-foot distance to structures on either side of the proposed project.
Findings Of Fact The CCCL and Continuous Lines of Construction The CCCL The Legislature has declared it in the public interest to preserve and protect Florida's beaches and the coastal barrier dunes adjacent to them. See § 161.053(1)(a), Fla. Stat. In furtherance of this intent, the Department is empowered to "establish coastal construction control lines on a county basis along the sand beaches of the state fronting the Atlantic Ocean . . .". id., "after it has been determined from a comprehensive engineering study and topographic study that the establishment of such control lines is necessary for the protection of upland properties and the control of beach erosion." § 161.053(2)(a), Fla. Stat. The Department defines "Coastal Construction Control Line" or "CCCL" as "the line established pursuant to the provisions of Section 161.053, F.S., and recorded in the official records of the county, which [delineates] that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions." Fla. Admin. Code R. 62B-33.002(12). Brevard County's CCCL bisects property along the Atlantic Ocean owned by Petitioner and her husband. Continuous Lines of Construction The Department is mandated to exempt from some regulation certain construction that is seaward of a CCCL. See, e.g., Section 161.053(2)(b)1., Florida Statutes, which relates to construction landward of beach armoring. In addition, the Department is granted discretion to permit construction seaward of a CCCL in other instances. One such instance relates to construction landward of "a reasonably continuous and uniform construction line," Section 161.053(5)(b), Florida Statutes (a "Continuous Line of Construction") that is seaward of the CCCL. Subsection 161.053(5)(b): (5) Except in those areas where local zoning and building codes have been established pursuant to sub-section (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows: * * * (b) If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing [the coastal construction control lines], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department. However, the department shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided herein . . . This proceeding involves a permit for construction seaward of the CCCL and landward or on a Continuous Line of Construction. The lines are in Brevard County where property is owned by both Petitioner and Intervenors, who, together with DEP, comprise the parties to this proceeding. The Parties Petitioner Carol C. Pope resides part-time in a duplex along Wilson Avenue on Cape Canaveral in Brevard County. She owns this oceanfront property, littoral to the Atlantic Ocean, with her husband James M. Pope. Although the property has a Cocoa Beach mailing address, it is not within the city limits of Cocoa Beach. The pre-hearing stipulation filed by all of the parties offers this account of the property's location: "The Pope's property is Lot 11, Block 101, Avon by the Sea, as described in Plat Book 3 page 7, [presumably in the Official Records of Brevard County] and east to Ocean, except the west 13 feet of Lot 11." Ms. Pope is the Petitioner in both of the consolidated cases that comprise this proceeding. The Department Among many duties related to environmental protection, 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 Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control lines; activities seaward of the coastal construction control line; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties." § 161.053(21), Fla. Stat. Pursuant to its rule-making authority in Section 161.053 (together with other specific authority), the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)." Two employees of the Department Tony McNeal, P.E., and Srivinas Tammisetti, P.E., testified at hearing. Both are engineers and both are involved with the Coastal Construction Control Line Program. Mr. McNeal is the program administrator. Mr. Tammisetti is a Professional Engineer II with the Department's Bureau of Beaches and Wetland Resources (the "Bureau"). He is responsible for "coastal armoring projects for the entire state" (tr. 52) and he is the head engineer for Lee County. In his capacity with the Bureau, Mr. Tammisetti reviews applications for activities seaward of the coastal construction control line. The Rays Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No. BE-1083 (the "Permit") issued by the Department in its order filed September 19, 2003. The Permit is the subject of the administrative proceeding initiated by Ms. Pope in DOAH Case No. 03-3981. Events Preceding the Permit's Issuance The Rays applied to DEP for a permit to conduct activities seaward of the CCCL, including construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry walls, and an exfiltration system. The Department approved the application. The Department's order issuing the Permit is titled "Permit for Construction or Other Activities Pursuant to Section 161.053, Florida Statutes." Intervenor's Ex. 1, Tab 6, pg. 1. The Permit acknowledges the application is for "authorization to conduct . . . activities seaward of the coastal construction line" and describes the location of the proposed project as "landward of the 30-year erosion projection and the existing line of construction established by major structures in the immediate area [the Continuous Line of Construction]." Id. While the application was pending before DEP, Ms. Pope visited the offices of the Department in Tallahassee several times. During the first visit (June 23, 2003), Ms. Pope reviewed the permit file and met with Mr. Tamisetti. At one point in the meeting, Ms. Pope asked Mr. Tamisetti how he determines the existence of Continuous Construction Lines. Ms. Pope testified at hearing that Mr. Tamisetti's answer was to the effect that "we look at a thousand feet on either side of the proposed structure." (Tr. 20). These were not necessarily Mr. Tamisetti's exact words but it is clear from the record that the substance of Ms. Pope's claim of what was said is correct; Mr. Tamisetti told Ms. Pope that the Department uses a thousand-foot distance on either side of a proposed structure in order to determine whether existing structures have established a Continuous Line of Construction seaward of the CCCL. The Rule Among the rules in the chapter for which Section 161.053 served as the sole specific authority is Rule 62B-33.008 (the "Rule"). It bears the catchline "Permit Application Requirements and Procedures." The Petition of Ms. Pope in Case No. 03-3860RX challenges subsection (d) of Section (4) of the Rule: (4) Any person desiring to obtain a permit for construction seaward of the coastal construction control line (CCCL) . . . from the Department . . . shall submit two copies of a completed application form. * * * The application form shall contain the following specific information: * * * (d) Written evidence, provided by the appropriate local governmental agency having jurisdiction over the activity, that the proposed activity, as submitted to the Office, does not contravene local setback requirements, zoning, or building codes and is consistent with the state approved Local Comprehensive Plan. Fla. Admin. Code R. 62B-33.008(4)(d). The Rule implements Section 161.052, "Coastal construction and excavation; regulation" as well as Section 161.053. Petitioner contends that the quoted portion of the Rule should be determined to be invalid because, while the statute directs that DEP in issuing permits of the kind obtained by the Rays "shall not contravene" local setbacks and building and zoning codes, it does not authorize DEP "to rely upon a letter mailed to an applicant from someone employed by an "appropriate" local government to prove that an activity would comply with the statutory directive." Proposed Final Order submitted by Petitioner, p. 18. As pointed out by Ms. Pope in her Proposed Final Order, DEP does not maintain nor does it require applicants for permits related to activity seaward of a CCCL to submit comprehensive land use plans, local setback requirements, zoning or building codes of counties and municipalities along Florida's coast. Instead, as sanctioned (in fact, required) by the Rule, DEP allows applicants to submit written evidence provided by the local government that the proposed activity does not contravene the enumerated regulations and is consistent with the local comprehensive plan. The parties have stipulated that the Department has not delegated its permitting authority under Chapter 161, Florida Statutes, to Brevard County. The Statement The statement made by Mr. Tamisetti (the "Statement") is similar to one he has made many times over the course of his employment with the Department. Without reservation, Mr. Tamisetti testified as much at hearing. The Statement has been interpreted as DEP's common method of prescribing lines of continuous construction by at least one member of the public. A professional engineer who conducts coastal engineering analysis, opined in writing to one of his clients that: The DEP has commonly prescribed the "line of continuous construction" by the line established by the average seaward limits of the foundations of the structures within 1000? feet north and 1000? feet south of the subject property or the seaward limits of the most seaward structures within 1000? feet north and south of the subject property Petitioner's Ex. 14, p. 1 following the cover letter. Mr. Tamisetti maintained at hearing, however, that the statement he made to Ms. Pope was not a common method for determining a Continuous Construction Line. Rather, the Statement constituted a starting point for those who inquired about how such lines were determined to exist. The Department does not contend otherwise. In the Pre-hearing Stipulation executed by all parties, the Department's position with regard to the Statement of Mr. Tamisetti is found on page 4: "The statement [that DEP uses a 1000-foot distance on either side of a proposed structure to establish a Continuous Line of Construction] is merely a guideline to allow applicants and their engineers a starting place for providing the Department information regarding the line of construction." The reason for the Statement was discussed by Mr. Tamisetti in his testimony. When a concerned party poses the question of how DEP would determine a Continuous Line of Construction as to a certain site, the question can only be definitively answered by asking questions of that party, in turn, and requesting sufficient data. Responding might entail costs prohibitive to the party. "A thousand feet" is offered as "a starting point . . . to give them something" (tr. 61) as an estimate for whether to pursue the effort to have such a line established. In one project, Mr. Tamisetti offered, the distance from a proposed structure to an existing structure might be "500 feet"; in another "2000 feet." (Tr. 61, 62). Ultimately, Mr. Tamisetti insisted the determination is site specific and cannot be made across the board on the basis of a measurement of 1000 feet. The Permit's Relationship to the Statement Ms. Pope produced evidence of the location of a Continuous Line of Construction determined by DEP to exist for purposes of the Ray's permit, DEP Permit No. BE-1083. She concludes in her proposed final order: [T]he line that DEP depicted approximates the line that would be derived by drawing a line from existing structures within 1000 feet on either side of the structure proposed in BE-1083. (citation to record omitted) The derivation of the line of continuous construction can only be a result of using the foundations of building within 1000-feet on either side of the proposed Michelina Condominium, as readily seen on the DEP April 2002 aerial photograph . . . Proposed Final Order, submitted by Petitioner, p. 8. Furthermore, Ms. Pope points out DEP has two rules relevant to the interrelationship between the permit and her claim that the Statement is a rule in violation of Section 120.54(1)(a), Florida Statutes. Florida Administrative Code Rule 62B-33.005(4), in her view, requires that applications for permits to conduct activity seaward of a CCCL "be 'clearly justified' by the applicant." Id. "Secondly," she asserts, DEP has an existing rule that requires applications to include surveys that depict accurate dimensions and locations of the foundation outlines of any existing structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line. Rule 62B- 33.008(4)(f)15, F.A.C. Id., at 8-9. These rules relate, obviously, to the Permit Case. Coupled with the location of the Continuous Line of Construction determined by DEP with regard to the Rays' application for purpose of the un-promulgated rule challenge, however, they do not overcome other evidence as to how the Bureau determines the existence of Continuous Lines of Construction seaward of CCCLs. That evidence is the testimony of Mr. McNeal, the head of DEP's Coastal Construction Control Line Program. The Testimony of Mr. McNeal Ms. Pope's claim that the only credible evidence in the case demonstrates that the Statement is an un-promulgated rule overlooks convincing credible evidence provided by Mr. McNeal. Mr. McNeal's testimony shows that the Statement is not reflective of a policy followed by DEP that creates rights or imposes duties upon the regulated. It is not reflective of a policy of the Bureau of Beaches and Wetland Resources that does so either. Nor is it reflective of such a policy of the Bureau's Coastal Construction Control Line Program. As explained by Mr. McNeal, if an applicant would like to build on a Continuous Construction Line seaward of the CCCL, the applicant typically must demonstrate that the Continuous Construction Line exists by data provided with the application. Petitioner's Exhibit 7, entitled "Request for Additional Information" was identified by Mr. McNeal at hearing as "a template for our standard information package that comes with the application." (Tr. 40). "The items of information listed [on the request] are numbered to correspond with the item numbers on the application form." Petitioner's Ex. 7, p. 1. The following appears under Item 9: Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of application. The topographic survey drawing shall include the following specific information: * * * - Accurate dimensions and locations of the foundation outlines of any existing structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of 161.053(5)(b), . . . Florida Statutes . . . (Id., pps. 2-3). There is no reference to the "1000 feet" measurement in the Bureau's Request for Additional Information. Furthermore, when an application is submitted that is incomplete with regard to the location of existing structures, the Department does not always resort to a request for additional information. The Department has an extensive database that includes aerial photographs, GIS images, and topographic information collected with regard to DEP reference monuments spaced along the shoreline. On occasion, the DEP database is sufficient to determine whether such a line exists without additional information provided by the applicant. When a determination of a Continuous Line of Construction is made by DEP, it is made specific to the site of proposed construction on the basis of the information submitted by the applicant or on the basis of publicly held data. The determination is not made on the basis of Mr. Tamisetti's statement to Ms. Pope or on the basis of unwritten policy related to existing structures within 1000 feet of the proposed structures. A Rule of Thumb for Prospective Applicants Mr. McNeal's testimony sheds direct light on the actual practice of DEP and the Bureau of Beaches and Wetland Resources in determining the existence and location of Continuous Lines of Construction. When the Petitioner's case is measured against the Department's, the best for Petitioner that can be said of the Statement is that it is precisely what Mr. Tamisetti claims. It is a "rule of thumb," and a rough one at that, for whether it is worthwhile for a party to pursue the establishment of a Continuous Construction Line in order to conduct activity, including construction, seaward of an established CCCL. It does not constitute an agency statement of general applicability that meets the definition of a "rule" in the Administrative Procedure Act and that is subject to the Act's rule-making requirements.
Findings Of Fact The site of the revetment that is the subject of this litigation is located near the northerly coast of Pine Island in Charlotte Harbor. The property fronts on Pine Island Sound which is inside the barrier islands westward of Pine Island. Pine Island Sound is as an Outstanding Florida Water and Charlotte Harbor at this location is classified as Class II waters. Petitioner's property abuts the property owned by Meister Development Group. On Petitioner's property is located a two-story residence and two rental units. On Meister's property a four unit residential development has been erected. Sometime around 1970 a vertical seawall was erected to protect both Petitioner's property and Respondent's property. Since that time the beach has accreted to the point that by 1989 the sand beach extended an average of approximately twenty-five feet seaward of the seawall in front of Petitioner's property. However, this seawall ended near the middle of Respondents property and erosion of the beach became serious at the four unit residential development building located thereon in 1984. In 1984 the beach at this location had eroded to the point that the high water mark had passed the northern most portion of the building foundation and was threatening to undermine the structure. At this time this shoreline was devoid of aquatic vegetation. Meister employed an engineering firm to prepare a solution to the erosion problem. That firm concluded a revetment was needed and the application for the dredge and fill permit that is here contested was filed in July 1984. Since the application involved use of land seaward of the mean high water, permission of the Department of Natural Resources (DNR) was required before the application could receive final approval. To obtain the approval of DNR Meister agreed to provide a conservation easement to DNR and a public easement to allow the public access to cross the property seaward of the residential development. Additionally Meister conferred with Outstanding Florida Water Group to obtain their acquiescence to the project and agreed to provide navigational aids to mark the Jug Creek Channel across form the Meister property. Before a dredge and fill permit can be granted involving an Outstanding Florida Water the applicant must show the project to be in the public interest. In consulting with DER the applicant proposed a sloping revetment which is generally considered to better tolerate wave action than does a vertical wall. To enhance the public interest concept the applicant agreed to place toe stones at the foot of the revetment and plant mangroves. The toe stones would serve to hold sand in which the mangroves could grow and serve as a habitat for aquatic organisms. The applicant also agreed to place an artificial reef of rocks on the sand shoal which sits about one half mile north of applicant's and petitioner's property. Although the mangroves planted did not survive due to heavy wave action and the permit did not require survivability of these mangroves, at the hearing Meister agreed to a provision in the permit's next renewal that will include a requirement that a percentage of these mangroves planted in the toe stones survive. Landward of the residential development is a stormwater retention area that serves to keep contaminants out Pine Islands Sound. The erosion of the beach at the Meister property was threatening to extend further inland and allow contaminants to leach from the water retention area into Pine Island Sound and contaminate that body of water. Approval of the project would serve to remove that threat and be in the public interest. Finally consideration was given to the fact that the foundation of the condominium was being threatened which affected the dwelling of the residents. Protecting these residences is also considered to be in the public interest. The project was completed during a two weeks period in August 1986. The revetment generally takes off in the same line as the Vertical seawall on petitioner's property and is basically convex to fit the existing building and meet the zoning setback requirement of twenty-five feet from the building. To construct the revetment the existing vertical seawall on Meister's Property had to be removed. During construction turbidity screens were installed and construction was restricted to periods of low water to reduce turbidity. Any excess turbidity caused by the construction would settle out within twenty-four hours. Dr. O'Malley left Pine Island in March and returned in October 1986. At the time he left the beach in front of his seawall extended an average of twenty-five feet from the seawall. When he returned in October the revetment had been completed and approximately fifty-percent of Petitioner's beach had eroded. In October 1986 the beach on O'Malley's property extended two to twenty feet from the seawall. O'Malley was aware that prior to his departure the Meister property had suffered severe erosion. Believing that the construction of the revetment was the cause of the erosion of his beach Petitioner instituted this action. This was the only issue seriously contested. Petitioner's expert witness opined that the revetment acted like a groin east of Petitioner's property and caused a littoral drift, which is basically from east to west in this area, to take the sand from Petitioner's property. Further this witness opined that the longer fetch (area of open water to the north-east of Meister property) was the primary cause of the erosion of the Meister property. Historically beaches erode and accrete. Gentle waves have the tendency to cause accretion while storm waves result in seaward migration of beach sand. Photographs (exhibit 3) of Petitioner's property show typically storm wave generated erosion. The expert opinion of Respondents' witnesses that the erosion of Petitioner's property was caused by storm driven waves and was not caused by the revetment is deemed the more credible explanation of the erosion of Petitioner's beach.
