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.
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.
Findings Of Fact Charlotte County lies on the eastern shore of the Gulf of Mexico. The mainland is protected by a series of low lying barrier islands running more or less north and south. Manasota Key, Don Pedro Island and Gasparilla Island are the consolidated remnant of seven or more smaller islands. In all, Charlotte County has about 14 miles of sandy beach on the Gulf. The location of the shoreline is not static. Along the stretch of beach between Stump Pass and the Sarasota County line, for example, the shoreline moved gulfward between 1883 and 1975, while the shoreline south of the pass moved landward between 1883 and 1939, then gulfward between 1939 and 1975. In very broad geological terms, the tendency of barrier islands is to migrate toward the mainland, but accretion is also ongoing. In general, the Charlotte County islands have moved further into the Gulf during the last century. Annual variation is typical: accretion in summer and fall follows erosion in winter and early spring. Respondent DNR has placed reference monuments along the Charlotte County beaches every 1,000 feet or so, 68 in all. In May of 1974, DNR surveyed a profile of the beach at each station and also made a record of the bottom profile. Offshore profiles were done at every third range to a depth of 30 feet, and, at the other ranges, out to a wading depth (four feet below mean sea level). Using this information, DNR promulgated Rule 16B-26.06, Florida Administrative Code, which established the existing coastal construction control line (the 1977 line). STANDING By law, DNR's Division of Beaches and Shores has permitting authority over certain activities, notably building construction, in the area between the mean high water line and the coastal construction control line. The proposed rule amendment under challenge here would establish a new coastal construction control line (the proposed line) for Charlotte County that would lie landward of the 1977 line along most, but not all, of its length. Except for Lisa Noden, the petitioners and intervenors in these consolidated cases own property in Charlotte County on the Gulf of Mexico, including property lying between the 1977 line and the proposed line. Intervenor Boca Grande Club, Inc. owns Gulf frontage on Gasparilla Island including land lying between the 1977 line and the proposed line. On November 30, 1984, Boca Grande Club, Inc. had "the present intention to apply within the next six months for the necessary construction permits for a structure to be located on its real property," Intervenors' Exhibit No. 9, landward of the 1977 line and seaward of the proposed line. Respondent stipulated to the intervenors' standing. Dean L. Beckstead, president of Charlotte Harbor Land Company, has overseen the construction of 70 to 75 houses on that parcel of Don Pedro Island extending from Stump Pass 8000 feet south and from the Gulf of Mexico to Lemon Bay. With respect to some of these houses, construction is ongoing. The plan is to build additional housing, but no more than 50 residential units in all. In keeping with past practice, new construction would be well landward of the 1977 line, because of Mr. Beckstead's great respect for the ocean, but might be seaward of the proposed line. William McCrabb of Sarasota is an officer of a corporation, Nabob of Florida, Inc., that owns Gulf-front property on Manasota Key. He is also a general partner in a partnership that owns adjacent Gulf frontage. A 17-unit condominium has been completed on one parcel and plans exist for a 125-room hotel on the other. The only element of the hotel project seaward of the 1977 line is a planned dune overwalk. A larger portion of the hotel project would be seaward of the proposed line. Petitioner Charles Guy Batsel owns a house that sits on Gulf-front property in Charlotte County. Some 5,000 square feet of this parcel lie between the 1977 line and the proposed line. Even when obtaining a coastal construction permit does not result in changes in a project that have an adverse economic effect on a landowner, the costs associated with the permitting process itself may be substantial. The testimony of Randall Craig Norden, a developer, that he spent approximately $100,000, or at least 2.5 percent of the total cost of Phase Three of Colony Don Pedro, on attorney's fees, engineering fees, travel to Tallahassee and other expenses associated with obtaining a coastal construction permit, went unrebutted. REVISITING THE 1977 LINE After it came to the attention of DNR staff that erosion along parts of the Gulf shoreline in Charlotte County had resulted in the 1977 line's approaching the water's edge in several places, staff recommended that the line be reexamined. The Governor and Cabinet, in approving DNR's annual work program in 1983 and in voting to enter into a contract with Florida State University for, e.g., "Studies to Reestablish Control Lines," Petitioners' Exhibit No. 3, on July 1, 1983, ordered a comprehensive review. Even before the Governor and Cabinet took these actions, DNR staff performed a survey in Charlotte County in 1982 to determine beach and bottom profiles at the same points at which they had been measured in 1974, although in two or three instances, the monuments had washed away. On Manasota Key between ranges 1 (the northernmost in Charlotte County) and 5, the mean sea level line receded an average of 15 feet between May of 1974 and December of 1982. The mean sea level moved further toward the Gulf on average between ranges 6 and 11, but receded an average of 20 feet between ranges 12 and 18. Between ranges 16 and 24, no relocation of the coastal construction control line has been proposed. Displacement of sand when Stump Pass was dredged may have affected the shoreline south of the pass, although shorelines in the vicinity of inlets are ordinarily unstable. On Don Pedro Island, just south of Stump Pass, there has been accretion. Between ranges 27 and 39, which lie still further south of Stump Pass, the mean sea level line receded an average of 81 feet between May of 1974 and December of 1982. Between ranges 45 and 49 the line has moved an average of 32 feet landward while there has been accretion, on average, between ranges 50 and 55. At range 60, the northern end of Gasparilla Island, the mean sea line had receded 100 feet between May of 1974 and December of 1982 and another 10 feet by September 14, 1983. At range 61, the mean sea level line had moved seaward by 100 feet between May of 1974 and December of 1982, while at range 62 there was a seaward shift of 75 feet over the same period. At range 63, there was accretion between May of 1974 and December of 1982 but erosion brought the mean sea level line landward of its May 1974 location by September of 1983. Between ranges 6 and 67, the average recession of the mean sea level line was 76 feet. By one calculation, the county as a whole lost about 59,000 cubic yards of beach material between May of 1974 and December of 1982. Measurements made shortly before the "No Name" tropical storm occurred, in the summer of 1982, suggest that the storm did not significantly affect these measurements of long term trends. At no time did riparian landowners or officials of Charlotte County or any affected municipality make any written request that the coastal construction control line be moved, although Franz H. Ross, one of Charlotte County's county commissioners, testified at the hearing that the 1977 line needed replacement. He did not endorse DNR's proposed line. After the 1977 line was drawn, the enabling legislation was twice amended. The first reference to a 100-year storm surge appeared in 1978. Ch.78-257, Section 5, Laws of Florida (1978). More recently, storm waves as well as storm surge became a statutory criterion. Ch. 83-247, Section 2, Laws of Florida (1983). Not only have new laws and a new beach emerged since the 1977 line was established, but there have also been advances in scientific analysis and prediction of the behavior of storm waves, notably with reference to surf beats or "dynamic wave set up." ECONOMIC IMPACT STATEMENT DNR prepared a 27-page economic impact statement in which it estimated the costs of the proposed line to the agency, and costs and benefits to persons directly affected by the proposed rule; and made a detailed statement of the data and method used in making these estimates. With respect to the impact of the proposed rule on competition and the open market for employment, the economic impact statement noted that construction costs would increase under the proposed rule, causing a "market adjustment period" during which "builders would have to absorb the cost increase themselves or delay construction while prices rise sufficiently . . . Postponing of construction would tend to reduce employment . . . temporar[il]y. . . . Petitioners' Exhibit No. 5, p. 13. Although portions of the economic impact statement were originally drafted for Dade and Broward County control lines, they have obvious application to Charlotte County, as well. The thrust of the cost-benefit analysis was that construction costs would increase in the area between the 1977 line and the proposed line, but that enhanced preservation of the beaches, and decreases in flood insurance premiums and storm damage potential would more than offset these increased costs. The increase in construction costs was attributed to the expense and delay of obtaining a coastal construction permit, the additional labor and materials necessary to elevate the structure above the predicted level of storm waves in a 100-year return storm, and the relatively insignificant cost of installing stronger connections (hurricane clips for the roof and bolted- metal straps over joists to secure them to supporting piles) so that the structure could withstand wind loads of 140 miles per hour. Petitioners did not disprove the reasonableness of the permitting cost assumptions in the economic impact statement, the evidence of Colony Don Pedro's experience notwithstanding. Fire escapes and access for handicapped persons were not taken into account, but the evidence did not show that differential costs for those items would affect the conclusions of the economic impact statement. The economic impact statement assumes that buildings would have to be elevated off grade even without the additional coastal construction control requirements, and that foundations would be designed by engineers, in any case. Neither assumption was proven false. The assumption that costs increase in direct proportion with elevation yields only a very rough estimate of differential costs. The differential cost analysis did not take fully into account the criterion that applies in coastal construction permitting that relates to a structure's two-dimensional "footprint." DNR permitting staff may recommend denial of a permit even though a proposed building meets all structural integrity requirements whenever, on a site-specific basis, the area to be covered by the building fails to "minimize any expected adverse impact on the beach system." Rule 16B-33.07(2), Florida Administrative Code. In such circumstances, one resolution may be to place the proposed structure at a more landward site, and the economic impact statement does address the economic consequences of removing structures landward, but other resolutions, such as scaling down the project or decreasing floor size and adding floor(s) are not considered. In this connection, there is no mention of Charlotte County's three-story (35 feet) height limitation nor, in general, does the economic impact statement identify what Charlotte County ordinances now require for coastal construction. On the benefit side, some of the flood insurance rate comparisons are inappropriate because Charlotte County will not allow floor elevations several feet below base flood elevations set by the Federal Emergency Management Agency, as the economic impact statement assumed for comparative purposes. The rate differentials also apparently ignore the fact that the same structure at a higher elevation will be worth more and have a greater insurable value. From Petitioners' Exhibit No. 23, moreover, it appears that federally subsidized flood insurance may no longer be available in certain parts of Charlotte County. But the Sheaffer and Roland study, Respondent's Exhibit No. 14, to which the economic impact statement refers, shows that elevating a structure to the wave crest level instead of to the storm surge level of a 100-year return storm creates additional benefits in the form of lessened storm damage potential (without regard to insurance premiums) that exceed the additional costs. With respect to benefits as well as costs, the economic impact statement suffers from a failure to explicate existing requirements of local law governing building construction. Without this base line, differential costs and benefits were not and cannot be quantified precisely for the specific case of Charlotte County. But see page 12 of Petitioners' Exhibit No. 5. The evidence adduced at hearing failed, however, to discredit the general conclusion of the economic impact statement that requiring sufficient elevation and sufficiently sturdy connections to withstand a 100-year storm event, including the wave crests it would generate, was cost effective, assuming the structure is to have an engineered foundation off grade, in any event. Precise quantification of the economic impact of the site coverage criterion DNR will extend to the area between the 1977 line and the proposed line, if the latter takes effect, may be impossible. The benefits will accrue to the beach and to adjacent landowners as much as to the owner of the structure and both costs and benefits will vary from parcel to parcel with changing topography. THE SANDS OF TIME Under conditions that have recently obtained in Charlotte County, sloping sand beaches climb from the water's edge to the toe of a more or less pronounced primary sand dune, behind which other dunes undulate in succession across the barrier islands to Lemon Bay or Gasparilla Sound, from which they are occasionally insulated by mangrove swamp. Vegetation over much of the islands, which vary from 200 to 2000 feet in width, attests to their present stability. But chances are that a hurricane will in time strike, flattening the dunes, spreading the sand well inland everywhere, all the way across the islands in some places, and leaving a wide beach face without, in many places, any discernible dunes. Such a reconfiguration will ineluctably result from the major hurricane identified as the 100-year return storm. Thereafter, under more favorable weather conditions, dunes will grow and reemerge, comprised of sand the Gulf gives back as well as the sand strewn across the island by the storm, unless surface impediments prevent. The cycle complete, dunes will again stand their erosion-damping vigil against the sea, a buffer protecting the mainland, as well as insular upland. In establishing coastal construction control lines, DNR is charged by statute with the job of "defin[ing] that portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions." Section 161.053(1), Florida Statutes (1983). DNR naturally looks to the beach dune system in the configuration it is predicted to assume after a 100-year return storm in defining "that portion of the beach-dune system which is subject to severe fluctuations based on a 100- year storm . . ." The folly of limiting consideration to the landward toe of a primary dune as it existed in a period of fair weather was well illustrated by the photograph that came in evidence, as Respondent's Exhibit No. 12, of a monument placed behind a dune in St. Johns County only recently that is now well down on the beach. DNR METHODOLOGY In drawing the proposed line, DNR followed the procedure it employed in establishing coastal construction control lines in Nassau, Franklin and perhaps other counties. The line proposed for Martin County was drawn in the same fashion. By statistical inference from historical data, five characteristics of a predicted 100-year return storm are identified: central pressure deficit, radius to maximum winds, speed of hurricane system translation, hurricane direction (track angle), and landfall location or some other geographical reference. In order to assess the likelihood of various combinations of storm attributes actually observed, cumulative probability curves are generated and predictions of storms and their characteristics over several hypothetical 500- year time periods are made. Of each 500-year suite of storms, the fifth most severe is chosen as the 100-year return storm. A date between June 1 and November 30, 1982, is chosen at random and astronomical tides on that day are assumed to coincide with the 100-year return storm. Using the average characteristics of the 100-year return storm, associated wind velocities and storm surge are predicted. Astronomical tides, barometric pressure, wind stress, and the Coriolis effect all contribute to the height of the still water storm surge," the water level that you could measure at a point due to a hurricane's passage if you could turn off the waves." Dean's deposition at 31. The storm surge prediction model also takes storm waves into account: Maximum wave height is 78 percent of water depth. As storm waves approaching a beach reach the break point, their height falls by five percent, but the waves attain and exceed their former height by the time they reach shore. Waves have momentum which, as they break, is transferred, at least in part, "to the water column in the form of a wave setup." Dean's deposition at 32. For many years, "static wave setup" has been observed in wave tanks where waves of the same size have been set in motion to break against a wall of the tank. For six years or so, Drs. Dean and Chiu and others have been convinced that an additional allowance should be made for surf beats or "dynamic wave setup," to reflect the fact that waves in nature do not occur in uniform sizes at regular intervals. Their magnitude oscillates, in the case of breaking storm waves, around the still water surge elevations. To allow for dynamic wave setup, the static wave setup component of the predicted surge elevation is increased by half. The 100-year storm surge height is then used to predict, taking observed beach profiles into account, the landward penetration of waves which will have degenerated to a height of three feet and, with the aid of a mathematical model, the extent to which stormwater transporting sand offshore will cause erosion. At each range, unless a three foot wave is predicted to go further landward, the point to which erosion by offshore transport is predicted to occur is chosen as the endpoint for a segment of the coastal construction control line. Where penetration of a three foot wave farther landward is predicted, the coastal construction control line is drawn on that basis, in light of topography on either side of the range involved. In predicting the landward penetration of a three foot wave, aerial photographs or surveyor's field notes are consulted and, if there is vegetation along the range involved, a coefficient of friction is applied that simulates the existence of trees a foot in diameter with centers five feet apart. At the hearing, the use of a three foot wave horizontal penetration criterion was called into question, and there is an apparent difference of opinion between two of DNR's experts, Dean and Chiu, as to the significance a three foot wave has for the beach dune system. The three foot wave is notorious. This unassuming natural phenomenon has become laden with engineering and legal significance, ever since 1962 studies the Army Corps of Engineers performed in Galveston, Texas, showed that a three foot wave had enough energy to demolish a frame structure built on grade. If it has as much energy as that, Dr. Chiu reasons convincingly, it also has enough energy to transport significant amounts of sand and to damage vegetation. With its sand-holding properties, vegetation plays a critical role in the beach- dune system. Evidence that a three-foot wave does not rearrange substantial quantities of sand, if any was adduced, has not been credited. Even Dr. Dean reported seeing three foot waves moving substantial quantities of sediment. The mathematical erosion model, known for the inventor as the modified Kriebel model, assumes relatively higher sand dunes that are eaten away by waves transporting sand offshore. The erosion model does not take into account lateral movement of sand or the effects of waves overtopping a dune and carrying overwashed sand inland. The model predicts what distance inland an assumed storm surge will move various contours. By comparing the model's predictions to the effects of actual storms, calibration has been possible. After Hurricane Eloise hit Walton County, erosion along 25 miles of shoreline was observed and compared to the model's predictions. In order to draw a line landward of 98 percent of the points to which Eloise eroded the five foot contour, it was necessary to multiply the erosion model's prediction of the landward movement of the five foot contour by 2.5. With the 2.5 factor the model overpredicts for most of the coast affected by a storm, but underpredicts erosion for the point where the storm does its worst. The most severe erosion eats two and a half times further inland than average erosion along the affected coastline. AS APPLIED Underlying both approaches to drawing the proposed line was the prediction of the water height a 100-year return storm would produce. DNR calculated three storm surges, one for the northern, one for the central, and one for the southern Charlotte County coast, and predicted maximum water heights during a 100- year storm ranging from 13.1 to 12.7 feet above NGVD at the mean sea level line. Identifying the 100-year return storm for a particular locale is an elaborate exercise in probability theory that begins with the collection and analysis of historical data. At hearing, various criticisms of this process were advanced. Among them was the way certain data were assigned to categories or "bins." On rebuttal, the data were treated as discrete points and the result was the prediction of a storm surge .8 feet higher than the "bin" prediction method had yielded. Another criticism was the number of hurricanes selected as pertinent over the 80-year period studied. To the same effect was a criticism of the length of the period chosen. Reducing the number of storms from 28 to 20 causes the predicted storm surge to fall half a foot. Respondent's Exhibit No. In their proposed recommended order, intervenors contend Had DNR used . . . correct data in its development of the predicted 100- year storm surge level for Charlotte County, it would have simulated only 137 hurricanes for a 500-year period in Charlotte County. By simulating 182 hurricanes using the storm surge computer model, DNR simulated 45, or 33 percent, more hurricanes than justified. . . . P. 13 (footnotes omitted) The 33 percent is a red herring, since, as intervenors later note, the difference between simulating 182 hurricanes and simulating 125 hurricanes produces a difference of only .7 feet (from 12.9 to 12.2 feet) in the predicted storm surge, a difference of five or six percent. Nor was DNR's approach shown to be "incorrect." A certain amount of time at hearing was devoted to the categorization of hurricanes as alongshore (or bypassing), landfalling, or exiting. Different sources of data may be a source of confusion, if compiled with reference to different points of geographical reference. A hurricane that makes landfall in Miami may exit the peninsula in Charlotte County, while a hurricane that makes landfall in Tampa may bypass Charlotte County en route. Some confusion seems to have attended the integration of data taken from a National Weather Service publication that was used jointly with data from a NOAA source. Respondent's Exhibit No. 18 demonstrates that no significant distortion resulted, however. Among the historical storms omitted by DNR's consultants was the infamous Labor Day Hurricane of 1935, which generated storm tides of 18 feet at Marathon in the Florida Keys. Using only the 1973 NOAA data for Charlotte County yields predictions of storm surges a foot higher than DNR's consultants predicted. On Manasota Key, it was the erosion model that determined placement of the proposed line. Since the probability of the 100-year return storm hitting at any particular point on the Charlotte County coastline is virtually the same as for any other point on the Charlotte County coastline, the 2.5 factor is appropriate. The average amount of erosion over the whole of the affected coastline is of theoretical interest only. Between ranges 1 and 10 on Manasota Key, the dunes are 12 to 14 feet high, as compared to an average elevation for all three islands of slightly above five feet. The high dunes on Manasota Key, where the erosion model was used to set the proposed line, resemble the walls of a wave tank more closely than the lower dunes on Don Pedro and Gasparilla Islands, where stormwater is predicted to cross the islands and keep going. Dr. Chiu also predicted overtopping of Manasota Key. Dr. Dean's testimony was to the effect net overtopping might mean a diminution in wave height attributable to diminished dynamic wave setup of .3 to .4 feet. To this should logically be added a corresponding diminution attributable to diminished static wave set up, viz., .6 to .3 feet, for a total of up to 1.2 feet. The controversial testimony was that the storm surge model ignores altogether a documented phenomenon known variously as "initial rise," "forerunner," and "presurge anomaly," that adds 1 to 3 feet to surge elevations, and that this factor would offset any diminished wave setup almost entirely. Dr. Chiu's opinion that a three foot wave would cause overwash and damage to vegetation on Don Pedro and Gasparilla Islands, severely damaging the beach dune system, has been accepted. The contention that these phenomena are immaterial since they ware characterized as "severe impact on" instead of "severe fluctuations of" the beach dune system must be dismissed as a semantic quibble. Penetration of the three foot wave was the controlling criterion from Range 25 south to the Lee County line, although the average prediction of wave height at points where ranges intersect the proposed line is between 3.3 and 3.4 feet. These wave height predictions ignore, moreover, the erosion of the profile which is bound to occur. Witnesses on all sides agreed that a 100-year return storm would submerge Don Pedro and Gasparilla Islands. Waves three feet high and higher would travel across the barrier islands and Lemon Bay onto the mainland. In Charlotte County, use of the coefficient of friction was very conservative, inasmuch as vegetation on none of the coastal barrier islands approaches the density of trees one foot in diameter, five feet apart on centers. Trees a foot in diameter 15 or 20 feet apart cause only a four percent reduction in wave height every 100 feet as compared to the 20 percent reduction every 100 feet assumed for vegetated ranges in Charlotte County. PROOF IN PUDDING The conservatism of DNR's methodology is shown by damage done landward of the coastal construction control line in Franklin County, where a road upland from the line washed out during a storm of less than 100-year return magnitude and in Martin County, where as the result of a 10-year return storm severe topographical fluctuations were seen landward of the coastal construction control line proposed there. The storm surge model has been calibrated against storms of record, which has demonstrated its reliability, whatever the merits of its theoretical underpinnings. Even assuming some problems with the categorization of storm parameters put into the model for Charlotte County, the evidence adduced in this case does not support the conclusion that stormwaters in Charlotte County will reach an elevation of less than 11 to 12 feet, in the event of a 100-year return storm. The evidence overwhelmingly establishes that waves would reach at least that height. Respondent's Exhibit No. 2 shows what a storm surge of 11 to 12 feet did to a beach not dissimilar too Charlotte County's when Hurricane Frederic hit Gulf Shores, Alabama. Radical changes in topography occurred well landward of the point at which the proposed line for Charlotte County has been placed. This exhibit also shows why Mr. Tackney's opinion to the effect that a modest reduction in storm surge would permit sand dunes of a certain height to block the water's progress landward must be rejected. When a hurricane hits, the dunes are so dramatically eroded that their former height is not determinative. Although DNR ignored this factor in calculating the horizontal penetration of a three foot wave, in order to make the proposed line conservative, erosion of the profiles is inevitable. The Kriebel erosion model is designed to show what amount of sand stormwater will move offshore when a dune takes the full force of stormwater. When dunes are not high enough to do that, some other criterion for a coastal construction control line is necessary to reflect the different types of erosion that hurricane Frederic and other storms have shown will occur. Overwashed sand deposits stretched 800 feet and more from the water's edge after Frederic abated. The parties proposed findings of fact have been considered and have been adopted, in substance, except where unsupported by the weight of the evidence, immaterial, cumulative, or subordinate.
The Issue The issues to be resolved in this proceeding concern whether the Department of Environmental Protection (DEP) has jurisdiction over the activities encompassed by Permit Application BA-475 (Amended) and, if so, whether issuance of the permit complies with the applicable provisions of Section 161.053, Florida Statutes, and Chapter 62B-33, Florida Administrative Code.
Findings Of Fact Undisputed Facts: The following relevant facts are established by stipulation or admission and are not disputed. The proposed project is landward of the seasonal high waterline within thirty (30) years of December 1996; The project will not interfere with public access; The project will not result in the net excavation of in situ sandy soils seaward of the coastal construction control line (CCCL); Any sandy soil or material excavated for the proposed project seaward of the control line will remain seaward of the control line or setback and be placed in the immediate area of construction; The proposed project complies with the structural provisions of Rule 62B-33.007(2), Florida Administrative Code; The proposed project complies with Rules 62B-33.007(3)(a) through (d) and (f) through (h), Florida Administrative Code. Additionally at hearing, the Petitioners and Intervenor announced that they would not present any evidence on the issue of adverse impacts on marine turtles. Accordingly, impacts on marine turtles are not at issue in this proceeding. Project Description: RHE has proposed constructing a restaurant, pool, deck and stormwater basin within the Boardwalk Beach Resort on Panama City Beach, in Bay County, Florida. The Boardwalk Beach Resort consists of four (4) multi-story hotels with six hundred (600) rooms all together, several pools, boardwalks extending the length of the property and approximately seventeen hundred (1,700) to eighteen hundred (1,800) feet of beach front property. The project site is between Thomas Drive to the north and the Gulf of Mexico to the south. On July 23, 1996, RHE applied to the Department for a CCCL permit to construct, seaward of the interim line established by the emergency Order of October 16, 1995, the restaurant, swimming pool and deck. Part of the proposed deck was located seaward of the coastal construction setback line. On December 9, 1996, the Department issued a permit to RHE to construct the restaurant building with an attached deck fifteen (15) feet landward of the location originally proposed by RHE, as well as for construction of the swimming pool. On December 16, 1996, the Department issued to RHE an Amended CCCL permit authorizing construction of a restaurant building located five (5) feet landward of the location originally proposed by RHE, as well as a deck re-designed so that it would be structurally independent of the restaurant, a swimming pool and a dune enhancement plan which would restore the sandy dune seaward of the pool and restaurant location to its pre-hurricane Opal condition and elevation. The Amended permit would require re-vegetation of the dunes at the site with native plants to secure the dunes from erosion. Both the original and the Amended permits authorized the removal of the stormwater drainage pipe that carried stormwater onto the beach that had caused erosion of the beach near the project area. On January 9, 1997, the Petitioners timely filed a Petition challenging the Department’s decision to issue the Amended permit. On February 7, 1997, the Department established a new CCCL line for Bay County that was farther landward than either the old coastal construction setback line or the interim line established in the October 1995 emergency order. The project authorized by the Amended permit would thus be located entirely seaward of the newly established CCCL for Bay County. As of February 7, 1997, the date the new line was established, RHE had not begun working on the foundation or continued construction above the foundation for any of the structures authorized by the Amended permit. The Department determined that the project did not meet the requirements of Section 161.053(9), and Rule 62B-33.004(1), Florida Administrative Code, so as to qualify for an exemption from complying with the newly established CCCL for Bay County, as the project was not “under construction” at the time the new CCCL was established. The beach and dunes system is wide and the dune system is a significant one, with elevations of fourteen (14) to sixteen (16) feet NGVD, with a wide dune crest. The dry sandy beach in front of the site, even after hurricane Opal struck, remained approximately one hundred twenty-five (125) feet wide. From 1855 to 1934 the shoreline of the site was mildly accretional. Thereafter, until 1955 accretion was less significant, but from 1955 to 1976 became significant. From February 1992 through April 1995, the project site experienced a period of mild erosion. Accordingly the long-term data shows, in essence, that the shoreline is relatively stable at the site. Hurricane Opal caused the dune to erode or retreat landward by approximately a distance of fifteen (15) feet. Hurricane Opal was a major magnitude storm with one hundred twenty-five (125) mile per hour sustained winds and one hundred forty-four (144) mile per hour measured gusts when it came ashore in the vicinity of the proposed site. The dune portion of the proposed site now essentially mimics the pre-Opal conditions. Following hurricane Opal the applicants spent approximately Four Hundred Thousand Dollars ($400,000.00) in dune restoration along the entire shoreline of the resort property, some seventeen hundred (1,700) to eighteen hundred (1,800) feet of shoreline. That dune restoration work was permitted by the Department. There is now little native salt-tolerant vegetation on the site in its natural pre-construction condition. An existing stormwater drainage pipe and catch basin extend onto the beach seaward of the location of the proposed restaurant. The existing pipe and basin have caused erosion of the beach and the sand dune system on the project site. Under the amended permit proposal the stormwater pipe and basin would be removed. All of the proposed structures authorized by the Amended permit would be landward of the pre-Opal coastal construction control line. The proposed pool will be located landward of the dune crest and fifty-five (55) feet landward of the toe of the dune. The proposed restaurant would also be located landward of the dune crest and two hundred five (205) feet landward of the mean high waterline. The original design of the project was for a much larger, three story restaurant. The original pool design called for a one hundred twenty foot pool extending from in front of the Comfort Inn to beneath the proposed restaurant, in effect being located on the first floor of the restaurant. At DEP’s request the size of the pool was reduced by fifty percent (50%) and it was relocated into the shadow of the Comfort Inn next door so that it will no longer serve as an integral part of the restaurant. Pool depths were also reduced to three (3) feet at DEP’s request. The pool, at DEP’s request, will now be constructed of Gunnite concrete material and will be frangible, that is, it will be designed to break up in storm-surge or storm-waves. This will serve to decrease the erosion which could be caused by storm-waves flowing over and around the pool structure. The same is true of the restaurant deck, which at DEP’s request has been re-designed to be separate from the restaurant and also designed to fail in storm conditions. The frangibility of the deck, as now proposed, will retard erosion during storm conditions, as the stormwater or waves will demolish the deck and remove it rather than scouring the sand dune around it. The Department also requested that the existing stormwater drain pipe and catch basin be removed and such a removal has been made a condition of the subject permit. This will require that the applicant design and build a new stormwater system. The applicant has agreed to this condition and the others referenced above. Vegetation: Construction of the proposed project will not result in the removal or destruction of native vegetation. There is no such vegetation on the site where the construction will take place. Thus, construction of the project will not result in removal or destruction of native vegetation which will either cause de-stabilization of a "frontal, primary or significant dune" or cause a significant adverse impact to the beach and dune system due to increased erosion by wind or water. A special condition of the proposed amended permit requires that the applicant submit a dune enhancement plan for restoration of the dunes seaward of the pool and restaurant to its pre-hurricane Opal condition, including re-vegetation. Such a plan was submitted by the applicant and it includes the planting of sea oats on one (1) foot centers. The planting of sea oats as part of the dune enhancement plan will constitute a significant improvement to the native vegetation situation at the site. Disturbance of Sandy Soils: The project will not result in the removal or disturbance of in situ sandy soils of the beach and dunes system to such a degree as to have an adverse impact on the system. That is, the existing ability of the system to resist erosion during a storm will not be reduced. The proposed project will not result in the removal or disturbance of in situ sandy soils of the beach and dune system to such a degree as to cause adverse impact to those systems by lowering existing levels of storm protection to upland properties and structures. All the sandy material excavated for the pool and the stormwater basin will be placed seaward of these structures on the dune in the immediate area of the construction and seaward of the CCCL. The additional sand to be placed on the dune as part of the dune enhancement plan will, in fact, enhance the ability of the system to resist erosion during the storm. The ability of the dune to resist storm erosion is primarily a function of the quantity of sand within the dune system. The additional sand to be placed on the dune as part of the dune enhancement plan will enhance the protection of upland properties and structures including those of the Petitioners and Intervenor. Excavation of the stormwater basin will not destabilize the dune on the project site. The applicant is moving the stormwater basin landward by twenty (20) feet which will minimize the potential impacts of the basin on the dune system. The preponderant evidence establishes that the structure of the pool and pool deck will not cause an increase in structure-induced scour of such a magnitude as to measurably affect shoreline change rates. Scour caused by the pool will not significantly interfere with the beach-dune system's ability to recover from a coastal storm. The frangible design of the pool decreases the likelihood that it will cause any scour. It will break up in a storm so that any scour caused by the pool would be minimal. Any scour caused by the pool would not disturb the topography or vegetation such that the coastal system would become unstable or suffer catastrophic failure. Scour would have no measurable effect. The proposed restaurant and deck will not cause an increase in structure-induced scouring during a storm of such a magnitude as to have a significant adverse impact. The restaurant and deck will be constructed on piles. Scouring around piles, in a storm situation, is very localized and insignificant. By constructing the restaurant and deck on piles at the design elevation, storm-surge and storm-waves will pass under the deck and restaurant. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune to permit natural shoreline fluctuations. The structures will be built on pilings and will be elevated above the storm-surge; thus they will not interfere with shoreline fluctuations. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to preserve and protect beach and dune system stability, in terms of the lack of interference with such. Other structures in the area are seaward of the proposed restaurant and deck, including Pineapple Willies Restaurant, located eleven hundred feet to the west. Those structures have not caused instability of the beach during hurricane Opal. Typically, existing structures do not cause instability of the dune systems. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to allow for natural recovery to occur following storm-induced erosion. Natural recovery commonly occurs under pile-supported elevated structures which is not the case with “slab-on-grade” structures which are not elevated. The pool and pool deck will permit natural shoreline fluctuations, will preserve and protect beach and dune stability, and will allow recovery after a storm because they are designed as frangible structures that will fail and disintegrate in a storm situation. Thus they will not appreciably affect the beach-dune system. Line of Construction: Most coastal construction in Bay County extends out to the pre-Opal CCCL while some construction extends beyond it. Throughout Bay County the line of construction is the pre-Opal CCCL. The line of construction is determined by the most seaward extent of similar existing structures in the immediate area of the proposed structure under consideration in a CCCL permit application. The proposed pool is landward of the line of construction determined by existing pools within the boardwalk beach resort. There are a number of existing multi-story structures to the east of the proposed restaurant that are located out to the pre-Opal CCCL. That pattern of construction continues to the east of the proposed restaurant. Approximately one thousand (1,000) feet to the east of the proposed restaurant is an existing multi-story major structure that is built out to the pre-Opal CCCL. The beach in the area of the project is highly developed with commercial and condominium buildings. Within eleven hundred to twelve hundred feet to the west of the proposed restaurant there is another major structure built out to the pre-Opal CCCL. Just beyond that structure are a number of additional major structures, including Pineapple Willie's Restaurant, that are constructed out to the pre-Opal CCCL. The multi-story major structures to the east and west of the proposed structure are within the immediate area of the restaurant. The proposed restaurant is located landward of the line of construction established by these major structures within its immediate area. That line of construction is the pre-Opal CCCL. DEP did not consider major structures more than one thousand (1,000) feet from the proposed restaurant when it determined the line of construction for the restaurant. It is DEP’s policy when reviewing CCCL applications not to consider structures more than one thousand (1,000) feet from a proposed structure when determining the line of construction. The one thousand (1,000) foot limit DEP uses to determine the line of construction is not embodied in a rule. There was no preponderant coastal engineering or other scientific evidence which justifies the one thousand (1,000) foot limit DEP imposes when it determines the line of construction. It was appropriate to consider the existing structures referenced above in assessing the line of construction for this amended permit application and considering those lying just beyond the one thousand (1,000) foot distance, because those existing structures dominate the coastal processees in the region and only lie just beyond one thousand (1,000) feet to the east and twelve hundred (1,200) feet to the west. If the Department had considered the above-referenced existing major structures just beyond one thousand (1,000) feet of the proposed restaurant, it would have been shown that the proposed project was landward of the thus established line of construction. No preponderant evidence was offered to explicate why the one thousand (1,000) foot limit was automatically adhered to in this situation. Moreover, the line of construction is not a prohibition in and of itself but rather is only one of several criteria that must be balanced in determining whether or not to approve a CCCL permit application. Projects have been approved seaward of the line of construction in the past. Minimization The location of the swimming pool at the most practicable landward location, the reduced size of the pool, as well as its frangible design and limited depth, has minimized its impact. The placing of the excavated material in the pool’s immediate area and the restoration of the dune in front of the pool and deck have minimized the impacts of the pool and deck. The construction of the restaurant on pilings with its design elevation above storm-surge and storm-wave elevations, together with locating it behind the dune crest and away from the active beach, has minimized the impact of the restaurant. The deck is on pilings as well, elevated above storm-surge and storm-wave levels. It will be physically separate from the restaurant and its design frangibility (so that it will fail in a storm) results in its impact being minimized. The stormwater basin is located as far landward as practicable. Its location and the placing of the materials excavated for the basin on the dune immediately adjacent to the basin has minimized the impact of the proposed stormwater basin on the beach-dune system. The restaurant, pool, deck, and stormwater system will not have a significant adverse impact to the beach-dune system. The restaurant will not adversely affect exiting shoreline change rates, will not significantly interfere with recovery following a storm, and will not disturb topography or vegetation such that the system will become unstable or suffer catastrophic failure. Cumulative Impacts The proposed project will not have an unacceptable cumulative impact. There are no other proposed similar projects to take into account and a cumulative impact assessment has shown there to be no adverse cumulative impact. No evidence was offered to show that an unacceptable adverse cumulative impact in terms of existing or other proposed projects will result. Positive Benefit The proposed project will have a net positive benefit on the beach-dune system. The removal of the slab-on-grade constructed building will have a beneficial impact because it will reduce the chance of storm erosion to the beach-dune system posed by such structures. The existing stormwater pipe and catch basin which cause erosion would be removed, resolving that erosion problem. Stormwater will now be retained in a new stormwater basin designed to serve 1.7 acres and it will not flow onto the beach for any rainfall event up to a one hundred year design storm. The new stormwater system is designed to recover quickly after a storm event and to treat stormwater. The removal of the stormwater pipe and catch basin, and the installation of the new stormwater basin will have a positive benefit to the beach-dune system. The new stormwater system complies with Special Permit Condition 7. Moreover the applicant will restore the dune seaward of the project to its pre-hurricane Opal condition and will plant sea oats, on one foot centers, throughout the restoration area in accordance with Special Permit Condition 1.8. Such restoration of the dune and vegetation will benefit the beach-dune system. The natural recovery process will take several decades without the placement of sand in the dune restoration project. The dune enhancement plan submitted by the applicant, in order to comply with Special Permit Condition 1.8, exceeds the requirements of that condition since it places more sand on the dunes than necessary to achieve pre-Opal conditions. Testimony of expert witness Michael Walhter, which is accepted, establishes that restored beaches and dunes function much like natural ones in storm events even though they can be somewhat inferior in resistance to storm-surge and waves since the sand is not as compacted at first. This dune enhancement plan, however, exceeds the permit requirements by placing more sand than necessary on the dunes to achieve pre-Opal conditions. The Interim CCCL On October 16, 1995, the DEP issued its emergency Order establishing an interim CCCL for Bay County one hundred feet landward of the pre-Opal CCCL. The Department established that interim line in order to regulate coastal development in the wake of Hurricane Opal. In 1978 the Legislature established criteria to be used by DEP in establishing or re-establishing all CCCL’s. They are thus to be established to define that portion of a beach-dune system subject to severe fluctuations from a one hundred year storm event. At the time of Hurricane Opal, DEP had not re-established the Bay County CCCL using a one hundred year storm event criterion. The interim CCCL for Bay County established by the above-referenced emergency Order did not utilize nor was it based on the statutory one hundred year storm event criterion. All twenty-three (23) other CCCL’s that have been established based on the statutory one hundred year storm event criterion were established by rule. As of January 15, 1997, the applicant had received all governmental approvals necessary to begin construction of the proposed project except for that which is the subject of this proceeding. On January 22, 1997, DEP by letter advised the applicant to cease and desist construction of the project. On February 7, 1997, the Department by rule then taking effect established a new CCCL.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, DETERMINED: That the Department of Environmental Protection has jurisdiction over the proposed project and that it is, therefore, recommended that a Final Order be entered granting the Respondent, Resort Hospitality’s CCCL application consistent with the terms and conditions espoused by the Final Order of December 17, 1997, Respondent’s Exhibit 2 and the project plans depicted in Respondent’s Exhibits 3 and 4. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Bram D. Canter, Esquire 103 North Meridian Street Tallahassee, Florida 32301 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire 1315 East Lafayette Street, Suite B Tallahassee, Florida 32301 Neil H. Butler, Esquire Butler and Long, P.A. Post Office Box 839 Tallahassee, Florida 32302-0839 Kathy Carter, Agency Clerk Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue is whether the plan amendment adopted by Manatee County (County) by Ordinance No. 10-02 on October 12, 2010, is in compliance.
Findings Of Fact The Parties The County is a governmental entity and has the responsibility of administering its Comprehensive Plan (Plan). It adopted the amendment being challenged. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The parties have stipulated that Petitioners own real property in the County in close proximity to the property whose land use is being changed and that they submitted oral or written comments to the County during the adoption process. Intervenors own the subject property, which consists of two adjoining parcels located northwest of Bradenton in an unincorporated part of the County between 17th Avenue Northwest and 9th Avenue Northwest, approximately 600 feet east of 99th Street Northwest, and just south of the Manatee River. The site is more commonly known as the Robinson Farms. The parties have stipulated to the facts necessary to establish that Intervenors are affected persons. Background In 1981, the County adopted its first comprehensive plan, which assigned a land use on the subject property allowing 4.5 dwelling units per acre. In 1989, the County updated its original plan and designated the property RES-1, which allows a density of one dwelling unit per acre. The RES-1 land use has remained in effect since that time. In 1997 an application by the prior owners to change the land use to RES-3 was denied. See Joint Ex. 8. The northern part of the property is currently vacant, while the southern part is vacant except for an existing single- family residence and barn. The land is used for agricultural purposes. It lies just west of, and adjacent to, several other residential subdivisions. The property to the west of the site has land uses of Agriculture, RES-1, or Conservation. Compatibility is not an issue in this case. On September 11, 2009, Intervenors filed an application with the County Planning Department seeking a change in the land use of their approximately 49-acre tract of property from RES-1 to RES-3. The proposed change would allow an increase in density on the property from one to three dwelling units per acre. The application was numbered PA-10-02 and was assigned Ordinance No. 10-02. A public hearing on the proposed change was conducted by the County Planning Commission on March 11, 2010. By a 5-2 vote, that entity recommended that the amendment be forwarded to the Board of County Commissioners (Board) for its consideration. See Joint Ex. 10, p. MC 001126. On March 16, 2010, the Board conducted a hearing on the proposed amendment and voted 5-1 to transmit the amendment to the Department, along with other 2010 Cycle 1 amendments. Id. at p. MC 001120. Shortly after the amendment was transmitted to the Department, the TBRPC completed its preliminary work on the preparation of a new Storm Tide Atlas (Atlas). The Atlas is a multi-volume public safety planning tool used to assist with hurricane evacuation planning in a four-county region in the Tampa Bay area, including Manatee County. Among other things, it reflects storm surge data (i.e., water heights) based upon the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) model developed by the National Oceanic and Atmospheric Administration National Weather Service. The information in the Atlas is vital to public safety since it predicts storm surge heights during hurricanes. Based on data from the SLOSH, the TBRPC prepares, and includes in the Atlas, storm tide zone maps for the Tampa Bay area, which depict the landward extent of anticipated storm surge for each of the five categories of storm events. The Atlas does not, however, depict the Coastal High Hazard Area (CHHA) or hurricane evacuation maps prepared by each local government.1 The data underlying the storm tide zone maps are used by local governments to assist them in preparing the CHHA, Coastal Evacuation Area (CEA), and Coastal Planning Area (CPA) maps in their comprehensive plans. The CHHA and CEA maps generally, but not always, encompass the same areas and for all practical purposes are the same. This is because the Plan definition of a CEA refers to the statute that defines the CHHA. See Joint Ex. 1, Vol. 1, p. MC 00053. Also, Future Land Use Element (FLUE) policy 2.2.2.4.1 defines the CEA in relevant part as "the geographic area which lies within the evacuation area for a Category 1 hurricane." Id. at p. 000140. The CPA is defined as "[t]hose portions of Manatee County which lie within the Hurricane Vulnerability Area (evacuation levels A, B, and C), as periodically updated." Id. See also Fla. Admin. Code R. 9J-5.003(57). Based on SLOSH data in the Atlas, hurricane evacuation maps (showing evacuation levels A, B, and C) are prepared by the County's Emergency Management Division (Division) to depict the geographic areas impacted by the five categories of hurricanes, with Evacuation Zone A being the area first evacuated during a category 1 hurricane. Based upon the 2009 SLOSH data, in late 2009, the Division prepared "carefully defined" Evacuation Zone maps, last updated in 2003, and presented them to the Board in April 2010. However, neither the existing CPA map (based on evacuation levels A, B, and C) nor the CEA map (based on the Zone A map) has been updated through the plan amendment process. Even so, the Division's latest Zone A map, given to the County planning staff in April 2010, represents a reasonably accurate depiction of the geographic boundaries of the CEA and evacuation level A of the CPA, based upon the latest and best available data at that time. The Atlas is updated from time to time, in this case because a new SLOSH model was developed in 2009. According to a TBRPC planner, the last SLOSH model for the Tampa Bay Area was developed around 1990. Like the CPA, the Plan requires that the County also update the CHHA and CEA maps "on a periodic basis." However, new information provided by the TBRPC is not automatically incorporated into the County's Plan. Rather, any changes in the maps must go through the large-scale amendment process so that members of the public, and affected landowners, have an opportunity to provide input before adoption. According to the County Planning Director, the new maps should be adopted in 2011 Cycle I or II. See Joint Ex. 10, p. MC 001065. However, in preparation for adoption hearings in June and October 2010 concerning this amendment, the staff prepared "proposed" CHHA and CEA maps based upon the new data provided by the TBRPC and Division, which are a reasonably accurate depiction of the geographic boundaries of those areas. The new Atlas was not adopted by the TBRPC until August 10, 2010; it was formally presented to the public at a meeting on August 26, 2010. However, the underlying data were given to the County and other local governments at a meeting in April 2010. At that time, the staff knew that new evacuation maps were being developed, but did not know the precise impact these changes would have on Petitioners' property. Based upon proposed maps prepared by staff, which in turn are based on information in the new Atlas, except for 4.68 acres in the northeastern portion of the site, the remainder of Petitioners' property would be within the predicted storm surge for a category 1 storm event (the CHHA), while the entire site would be within the Evacuation A and evacuation level A areas of the CEA and the CPA. See Joint Ex. 9; Petitioners' Ex. 10. On May 21, 2010, the Department submitted its Objections, Recommendations, and Comments (ORC) report to the County. See Petitioners' Ex. 4; Joint Ex. 4. The ORC noted that 21.4 acres of the site were within the CHHA and would result in an increase of 43 dwelling units in the CHHA. This observation was made using the current CHHA map in the Plan, rather than a revised CHHA not yet adopted by the County. The ORC noted that this increase in density would be inconsistent with Florida Administrative Code Rule 9J-5.012(3)(b)6., which requires that the Plan "direct population concentrations away from known or predicted [CHHAs]," and internally inconsistent with Coastal Element Objective 4.3.1, which requires that the County "[d]irect population concentrations away from the Coastal Evacuation Area (CEA)." The ORC also stated that the County had failed to demonstrate that the adopted hurricane evacuation time of 16 hours for a category storm 5 could be maintained. It recommended that the amendment not be adopted, or that the change in land use be restricted to that portion of the site outside the CHHA. Id. at p. 5. The TBRPC also reviewed the amendment and found it to be consistent with its Strategic Regional Policy Plan. See Joint Ex. 4. Although the TBRPC staff report was prepared on April 13, 2010, and considered at a meeting on May 10, 2010, it did not make reference to the data being used in the new Atlas but rather relied upon the current CHHA in the Plan. Id. Following the County's receipt of the ORC, Intervenors revised their application by removing the 21 acres within the CHHA and reducing from 49 to 28 the number of acres being changed to RES-3. This would allow a maximum of 105 dwelling units on the 28 acres (as opposed to 147 units if the land use was changed on the entire tract). Notwithstanding this revision, and the fact that new maps had not yet been adopted in the Plan, the County staff report dated June 17, 2010, "took [a] more conservative approach than DCA" and recommended denial of the application on the grounds the new Atlas data showed "the entire proposed site within the [CHHA]," the new mapping information constituted the best available data, and the application should be re-evaluated in light of the new data. See Intervenors' Ex. D. Except for this, the staff concluded that the amendment met all other criteria. On June 17, 2010, the Board conducted a public hearing on the revised application and due to a 3-3 vote, the application was deemed denied. See Joint Ex. 10, p. MC 001104. However, the Board voted to continue its deliberations at another hearing on June 21, 2010, when all seven Commissioners would be present to vote. Id. Because only six Commissioners were present at the June 21, 2010, meeting, the original 3-3 vote was allowed to stand. Id. at p. MC 001095. Pursuant to section 163.3181(4), Intervenors requested a mediation conference in which the County, Intervenors, and two members of neighboring subdivisions participated. That process culminated in an agreement for the applicants to submit additional data and analysis in support of the amendment and for the County to have another public hearing to consider the application. See Joint Ex. 19. Additional information supporting the amendment was submitted by the applicants on September 3, 2010. See Joint Ex. 13. On September 14, 2010, the Board approved the mediation agreement and scheduled a hearing to consider the matter on October 12, 2010, along with the 2010 Cycle 2 amendments which by then were awaiting approval. See Joint Ex. 10, p. MC 001073. At the October 12, 2010, meeting, the staff continued to recommend that the Board deny the amendment based upon the new Atlas data and the staff's proposed CHHA and CEA maps, which show that only 4.68 acres of the site are outside the CHHA, while the entire site is within the CEA (Hurricane Evacuation A). See Petitioners' Ex. 7. By a 4-3 vote, the Board initially denied the application. See Joint Ex. 10, p. MC 001067. Later in the meeting, after one Board member changed her position on the theory that the new Atlas data should not be considered, the Board voted to reconsider its earlier decision, and by a 4-3 vote, approved the map change. Id. at pp. MC 001071-1072. One of the Cycle 2 amendments considered at the October 12, 2010, meeting was CPA 10-18, also known as the McClure amendment, which sought a change in the land use on the McClure property from RES-1 to RES-3. In its ORC dated September 10, 2010, which was directed to that amendment (and other Cycle 2 amendments), the Department noted that a part of the site appeared to be in the CHHA and recommended that the "County should evaluate whether the subject site is within the CHHA based on the latest, best available data and analysis used in the Storm Tide Atlas for Manatee County released by the [TBRPC] on August 26, 2010." Petitioners' Ex. 5, ORC, p. 5. The ORC further recommended that if "a part of the site is within the CHHA, based on the most recent storm tide atlas information, the amendment should not result in any increase in density in that area in order to ensure that population concentrations be directed away from the CHHA." Id. The record is silent as to why the Department opted to use the later data on that amendment, but not amendment 10-02. In any event, following the issuance of the ORC, the County staff evaluated the amendment using the latest TBRPC data, and by a 4-3 vote, the Board adopted the McClure amendment. See Joint Ex. 10, p. MC 001069. However, the final version of the McClure amendment is unknown. The Robinson Farms amendment adoption package was transmitted to the Department for its review. On December 3, 2010, the Department notified the County of its Notice of Intent to find the amendment in compliance. The Notice of Intent was advertised in the Bradenton Herald on December 6, 2010. According to Department counsel, the Department's finding was based on two considerations: the applicants had revised their application as recommended by the ORC; and the County should continue to rely on the existing CHHA map until a new map is adopted in the next major plan amendment cycle. At the adoption hearing, the Board also considered data that show that between now and the year 2015, there will be no hurricane shelter deficit in the County. In addition, if the land use on 28 acres is changed, the plan amendment will only result in an increase of 56 units over what could be built under the existing RES-1 land use. There was no evidence that 56 additional units, occupied by 129 persons (at 2.30 persons per household unit), would adversely impact the hurricane evacuation clearance times for that area of the County or affect public shelter demand. Finally, the area in which the site is located, Subarea 11, is projected to increase by 10,000 persons between 2015 and 2035. The staff report reflects that the amendment will not affect the overall population projections or housing needs for the subarea. The site is located within the Urban Core Area. Policy 2.1.1.3 of the FLUE encourages residential density increases (or infill development) within that area in order to avoid urban sprawl. Finally, the entire area west of 75th Street, West, and north of Manatee Avenue West (in which the subject site is located) consists of 1,927 acres. Since 2006, 580 acres in that area have been changed from RES-1 to Agriculture and Conservation, thus reducing the amount of land available for 580 dwelling units. Petitioners' Objections Petitioners contend generally that the amendment does not react in an appropriate and proper manner to the latest and best available data and analysis because it allows an increase in residential density on land within the CHHA, CEA, and CPA; that there are no data and analysis of need for additional residential development on the property; that the amendment contravenes rule 9J-5.012(2)(e) because there is no inventory and analysis of the projected maximum population density designated on the current FLUM within the Hurricane Vulnerability Zone; that the amendment fails to restrict development in evacuation zone A to protect human life and avoid public expenditures, as intended by section 163.3178(1); and that the amendment is internally inconsistent with FLUE policy 2.2.2.4.5 and Coastal Element policies 4.3.1 and 4.3.1.1, which require that the County prohibit increases in allowable residential density on sites within the CEA and direct population concentrations away from the CEA and CHHA. These allegations generally, but in greater detail, track the objections raised in the ORC and the County's staff report. A plan amendment must be based on relevant and appropriate data. "To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of the adoption of the . . . plan amendment at issue." Fla. Admin. Code R. 9J-5.005(2)(a). As noted above, new and more accurate storm surge data were in existence and available to the County before the amendment was adopted in October 2010. Due to major improvements in technology since the last SLOSH model was prepared, the 2009 model has higher resolution basin data and grid configurations, which means that the predicted storm surge data are far more accurate than data in earlier models. Thus, the new TBRPC data and staff-proposed maps were the best available data on storm surge and coastal flooding at the adoption hearing. While the County and Intervenors are correct that there is no automatic incorporation of TBRPC data into the Plan, when more current and reliable data on the subject are in existence and readily accessible, as they were here, they should be used to evaluate proposed land use changes which would increase density in areas subject to coastal flooding. The Board reacted to the data in an inappropriate manner by assuming that only 21 acres of the property was in the CHHA and that none was located in the CEA. This reaction is not supported by the data. Therefore, the plan amendment is not based upon relevant and appropriate data and analysis as required by rule 9J- 5.005(2). Paradoxically, at the same meeting when the vote on Amendment 10-02 was taken, the Board evaluated the FLUM map change for the McClure property using the latest TBRPC data. All of the Robinson Farms property lies within the predicted CEA. Policy 2.2.2.4.5(a) of the FLUE applies to all development activity within the CEA Overlay District, which is an overlay based upon the CEA boundaries. It "[p]rohibit[s] any amendment in the [FLUM] which would result in an increase in allowable residential density on sites within the [CEA]." It is beyond fair debate that the plan amendment is internally inconsistent with this policy since the amendment would result in allowable residential density on a site within the CEA. Except for 4.68 acres, the entire site lies within the predicted CHHA, while the entire site is within evacuation level A of the CPA. Coastal Element policy 4.3.1 requires in part that the County "[l]imit development type, density and intensity within the [CPA]." It is beyond fair debate that the amendment is internally inconsistent with this policy since it does not limit development type and density within the CPA. Coastal Element policy 4.3.1 requires that the County "direct population and development to areas outside the [CHHA] to mitigate the potential negative impacts of natural hazards in this area." Also, Coastal Element policy 4.3.1.1 requires that the County direct population concentrations away from the CEA. Although not relied upon by Petitioners, but cited in the ORC, these two policies track rule 9J-5.012(3)(b)6., which requires that the local government "[d]irect population concentrations away from known or predicted coastal high-hazard areas." Here, the plan amendment would allow an increase of 56 dwelling units in the CHHA and CEA that would be occupied by 129 additional residents. Whether these increases in population and development trigger rule 9J-5.012(3)(b)6., or bring into play the two policies in the Coastal Element, was not fully addressed by the parties. However, the Department's ORC indicates that if 43 dwelling units are added to the CHHA, these provisions would be applicable. See Petitioners' Ex. 4, ORC, p. 5. Because the CHHA and CEA are designed to minimize development in areas subject to coastal flooding in order to protect lives and property, thus implicating vital safety concerns, the proposed increase in development (56 additional units) and population (129 persons) within the CHHA and CEA is the type of development and population concentration contemplated by the rule and policies. Because the amendment fails to follow the dictates of those provisions, it is beyond fair debate that the amendment is internally inconsistent with these two policies. (Had rule 9J- 5.012(3)(b)6. been relied upon by Petitioners, a finding of inconsistency with the rule would also be appropriate.) The County's policy is to encourage infill development within the Urban Core Area so as to avoid urban sprawl. See FLUE policy 2.1.1.3. The subject property lies within the Urban Core Area. The proponents of the plan amendment contend that when this policy is weighed against the conflicting policies directing population concentrations away from the CHHA and CEA, the County has the flexibility to consider the Plan as a whole and approve an increase in density in the RES-1 and RES-3 areas located in the Urban Core Area, even if that property lies within the CHHA or CEA. See Joint Ex. 1, Vol. I, § C.2.1.2, pp. MC 000018-000019. Given the significant risk to life and property that arises during natural disasters such as hurricanes, however, the infill policy should not trump conflicting Plan provisions that limit development and population in these high-risk areas. Petitioners also contend that the plan amendment is inconsistent with rule 9J-5.012(2)(e), which requires that the County make an inventory and analysis of the projected maximum population density on the current FLUM within the Hurricane Vulnerability Zones of the County. The Atlas contains an inventory and analysis of population in the County by evacuation level for the years 2010 and 2015. See Joint Ex. 3, Exec. Summary, p. 9. No evidence was submitted to show that this information in the Atlas is inaccurate or otherwise fails to satisfy the purpose of the rule, simply because it was prepared by the TBRPC, rather than the County. It is fairly debatable that the plan amendment is consistent with the rule. Petitioners also assert that the plan amendment violates section 163.3178(1) because it increases residential density within the CHHA and Hurricane Vulnerability Zone, a result which does not protect human life and coastal resources, or limit public expenditures in areas subject to destruction by natural disaster. Subsection (1) expresses the legislative intent of the entire statute. It is doubtful that an expression of intent, as opposed to specific requirements in other portions of the statute, would serve as a basis to find an amendment not in compliance. In any event, there is insufficient evidence to support a finding that it is beyond fair debate that the proposed development would "damage or destroy coastal resources." Also, the property is within the Urban Core Area, which is already served by existing infrastructure. If further infrastructure is needed for development purposes, Intervenors' planner represented at hearing that the owners would be responsible for those costs. It is fairly debatable that the plan amendment is consistent with the statute. Finally, Petitioners contend that there are no data and analysis of need for additional increases in residential density, as required by rule 9J-5.006(2)(c)2. and 3. The two subparagraphs require that there be an analysis of the amount of land needed to accommodate the projected population, including "the estimated gross acreage needed by category," and "a description of the methodology used." A revised analysis of impact on population projections to meet housing needs was incorporated into the staff report presented at the adoption hearing in October 2010. See Joint Ex. 9, p. MC 00974. The analysis generally reflected that based on land development approvals and development patterns within Subarea 11 (where the subject property is located), the Subarea can easily accommodate the estimated increase in population between the years 2015 and 2035. Although the analysis is brief, it is sufficient to support a finding that it is fairly debatable that the amendment is consistent with rule 9J-5.006(2)(c)2. and 3.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Determination of Non-Compliance regarding Plan Amendment 10-02 adopted by Ordinance No. 10-02 on October 12, 2010. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2011.
Findings Of Fact On September 23, 1983, Hollywood submitted a permit application to DNR for construction of the proposed project which is the subject matter of this proceeding. DNR designated that permit application as Permit Application 50-41. The proposed project is actually the first phase of a two-phase project, Phase II of which has already been permitted by DNR. Phase I, which is the subject of Permit Application 50-41, consists of an extension of existing Surf Road in the City of Hollywood, an extension of an existing asphalt boardwalk, construction of a parking area with landscaped island, swale, and associated lighting. The excavated fill removed from the site of Phase I is to be used in the construction of a dune which is encompassed within Phase II of the project. The properties on which Phase I and Phase II are to be constructed are owned by the City of Hollywood and are located seaward of the Coastal Construction Control Line and landward of the Erosion Control Line. The Summit Condominium is a condominium development located west of South Surf Road in the City of Hollywood, and is directly adjacent and contiguous to the property upon which the aforementioned project is to be constructed. Petitioner is the builder and developer of the Summit Condominium and, in addition, is the fee simple owner of approximately 15 units in that development. Phase I of the proposed project, which is the permit application at issue in this proceeding, provides for the construction of a 121-space public parking area which will be approximately 62 feet wide and 605 feet long, and will extend approximately 95 feet seaward of the Coastal Construction Control Line. The parking lot will be constructed with a six-inch limerock base over a six-inch crushed limerock subbase, and will be surfaced with a one and one-half- inch asphalt wearing course. The parking lot is designed with a definite landward slope, so that stormwater will sheet flow across the parking lot away from the dune system. There is no evidence of record in this proceeding which would in any way justify a conclusion that stormwater runoff from the parking lot area will have any adverse effect on the dune system seaward of the lot. Stormwater runoff once it has left the parking lot surface will be collected in a swale and drainage ditch system located landward of the paved parking lot surface. The drainage ditch will be composed of sandy material presently located on the site and is designed on a 1.2 to 1 slope. In addition, Wedelia is to be planted in and around the drainage ditch system in order to stabilize the slopes of the ditch. The ditch and swale system is designed to allow most stormwater runoff to percolate into the soil, with any excess being collected in the ditch itself and transmitted in a northerly direction. A drainage calculation study prepared in conjunction with this proceeding demonstrates that the drainage capacity for the proposed ditch meets minimum standards contained in the South Florida Building Code, as applied by the City of Hollywood. As the ditch fills with stormwater, the water will flow in a northerly, shore parallel direction to Jefferson Street, which is located north of both the proposed project and the Summit Condominium. From Jefferson Street, runoff from the project site will flow westerly to Highway A-1-A where an existing stormwater sewer system is located. If for some reason that system proves insufficient to handle runoff, the runoff will then travel across A-1-A into the intracoastal waterway. There is no competent evidence of record in this proceeding to demonstrate that stormwater runoff from the project site will, under any conditions, flow onto Petitioner's property. Phase I of the project has been designed to minimize the potential for the creation of aerodynamically or hydrodynamically propelled missiles in the event of a major storm. The asphalt surface of the parking lot is designed to break into chunks which will settle into the sand or water when exposed to wind and water forces. The parking meters are set four feet into the ground which reduces their potential to act as missiles, but even should the beach recede to the point where the meters are installed, evidence of record in this proceeding establishes that they will fall to the base of the eroded dune wall and will be washed out to sea rather than be propelled shoreward either by water or air. Various storm surge computer models for pre- and post-construction conditions at various locations on the property were performed. The result of these models shows that there will be no difference in impact on the beach dine system and adjacent property between the pre- and postconstruction profiles in the event of a ten-year storm. Further, computer models actually showed that there will be less erosion for the post-construction profile than for the preconstruction profile in the event of a twenty-year storm surge. In the event of a fifty-year or greater storm event, the beach profile for both pre- and postconstruction in the project area would be inundated, so that the impact of such a storm will be the same with or without the proposed construction. Evidence of record does, however, establish that based upon postconstruction conditions as proposed in the permit application it would take a greater storm to erode material from the postconstruction profile, thereby establishing that the proposed project will afford greater protection than existing topography. It appears from the record in this proceeding that Hollywood's Permit Application 50-41 is complete, and that DNR has in its possession all information necessary and required by law for the processing of the permit application. Engineering plans submitted in support of the application for Phase T have been signed and sealed by a professional engineer registered in the State of Florida.
Recommendation RECOMMENDED That a Final Order be entered by the State of Florida, Department of Natural Resources, granting the requested permit. DONE AND ENTERED this 25th day of October, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS 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 October, 1983. COPIES FURNISHED: Steven L. Josias, Esquire Donald J. Dooty, Esquire 3040 East Commercial Boulevard Fort Lauderdale, Florida 33308 Deborah A. Getzoff, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Leonard Lubart, Esquire Post Office Box 2207 Hollywood, Florida 33022 Elton J Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue The issue in this case is whether a beach house petitioners plan to build in south Walton County was already under construction, within the meaning of Section 161.053(7), Florida Statutes (1981) and Rule 16B-33.04(1), Florida Administrative Code, at the time the current coastal construction control line took effect there.
Findings Of Fact In October of 1982, the petitioners acquired a lot in south Walton County, on the north shore of the Gulf of Mexico. Even before the purchase, Mr. Wiese had been in touch with respondent's personnel, who apprised him of the imminence of the adoption of the new (now current) coastal construction control line, at that time already proposed for Walton County. The former coastal construction control line was considerably seaward of the current line, which became effective on December 29, 1982. Petitioners, who have built some seven houses, drew plans for a house to be built on their Walton County lot one foot landward of the old coastal construction control line. They applied for and obtained the necessary county building permit. They contracted for grading on site, which took place on November 27, 1982. In the course of this work, the landward face of the sand dune was disturbed and petitioners realized that, if they were to build so close to the water, a wall or something like a wall would have to be erected and buttressed to keep the sand dune from migrating under or into their beach house. They determined that the plans were inadequate as drawn. Mr. Wiese nevertheless arranged for one Al Christopher to bring two poles to the site and place one of them upright in the sand. When asked at hearing how long the two poles Mr. Christopher delivered to the site were, Mr. Wiese said he did not know. After Mr. Christopher began, petitioners did not ask him to desist either with bringing pilings to the site or with placing them in the ground. Mr. Christopher evidently did what he was asked to do, before he ever began working with the poles. Before the single pile was placed, batter boards were used to locate the perimeters planned for the building. Batter boards are temporary markers which are removed once the foundation is in place. In constructing piling foundations for beach houses along the gulf coast, in this part of Florida if not elsewhere, the ordinary sequence is to bring all foundation piles to the site before bringing the equipment necessary to install all the piles at once. This makes for efficient use of expensive machinery, and is virtually always done. One of the Wieses' neighbors, fearing that the new coastal construction control line would take effect last fall arranged for a single pile to be driven, but his project was well underway by the time the new coastal construction control line did in fact take effect. As late as March of this year, Mr. Wiese checked with a Texas supplier to see if foundation piles would be available for the project. The plans drawn before the grading of November 27, 1982, called for a foundation of 37 piles, each of which was to be 45 feet long. No horizontal members nor bracing of any kind was contemplated for the foundation. The foundation piles were to be put so close together that it would have been impractical to bring heavy equipment in to do the grading after they were in place. The idea in leveling the ground was to prepare it so a concrete slab could be poured to serve as a parking surface underneath the beach house. Under both the plans originally drawn and the plans under which petitioners now hope to proceed the parking surface itself is not expected to have a structural function, Mr. Wiese's testimony to the contrary notwithstanding. Once petitioners were persuaded that the project needed "reengineering," they diligently sought out expert assistance and new foundation plans were eventually drawn to their satisfaction. Petitioners' efforts took place on a regular, if not a daily basis, but consisted in large part of finding the right people for the "reengineering" job. The plans which petitioners propose to use were stamped with the final engineer's seal on March 3, 1983, more than two months after the current coastal construction control line took effect.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioners' beach house project grandfathered status, and apply the coastal construction control line adopted for Walton County on December 29, 1982, in any agency action regarding the project. DONE and ENTERED this 22nd day of August, 1983, Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August 1983. COPIES FURNISHED: Joseph C. Jacobs, Esquire John C. Pelham, Esquire and Melissa Fletcher Allaman, Esquire ERVIN, VARN, ODOM & KITCHEN Post Office Box 1770 Tallahassee, Florida 32322-1170 Deborah A. Getzoff, Esquire Suite 1003 Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Executive Suite 3900 Commonwealth Building Tallahassee, Florida 32303
