Findings Of Fact Background Petitioner is incorporated in the State of Florida as a not-for-profit corporation. The corporate purpose of Petitioner includes the improvement of environmental health. Petitioner's activities in this regard are especially focused upon Manatee and Sarasota Counties, including the City of Bradenton (Bradenton). Petitioner has about 2500 members. Members of Petitioner reside in Bradenton. These persons use the water and roads adjacent to Perico Island. Insubstantial evidence suggests that Petitioner, through its members, submitted oral objections to Bradenton at anytime during the planning process. Petitioner mailed a letter dated March 7, 1989, to the Department of Community Affairs (DCA) with a copy sent to Bradenton. The letter clearly constitutes written objections to the proposed plan. Bradenton initially received the March 7 letter on March 9. It is difficult to determine whether Bradenton received a copy of the March 7 letter after the issuance of the Objections, Recommendations, and Comments (ORC) by DCA. Even if Bradenton received a copy of the March 7 letter prior to the issuance of the ORC, it is impossible to determine if Bradenton received another copy of the letter with the ORC, which may contain numerous attachments consisting of the comments of other parties. The ORC was not introduced into evidence. The only indication in the record, including pleadings, of the date of the ORC is in Exhibit 2 attached to the Deposition of Robert Pennock, which itself is City Exhibit 6. Exhibit 2, which is a letter from DCA to Bradenton, mentions the ORC dated March 17, 1989. This date would be at the outside of the range for DCA to submit an ORC in response to a proposed plan transmitted, as in the present case, on November 23, 1988. 9/ By Request for Admission served November 21, 1990, Petitioner requested Bradenton to admit: "that [Petitioner] submitted written objections to [Bradenton's plan] which [Bradenton] received after it received DCA's ORC report." Bradenton's response to the request, in its entirety, states: The City has received a copy of the correspondence relating to possible "objections" to the City's Plan that were mailed directly to [DCA]. The date of that correspondence was March 7, 1989 and addressed to Robert G. Nave, Chief, Bureau of Local Planning, and was written by Attorney Thomas W. Reese. By date stamp on the copy of the correspondence in the possession of the City, it is believed that the document was received on March 9, 1989. The City does not admit that the correspondence of March 7, 1989 from Mr. Reese to Mr. Nave meets the intent of the statute for establishing standing and to the contrary, does not comply and does not establish such standing. The response ignores the portion of the request directed toward the factual question of the order in which Bradenton received the March 7 letter and the ORC. The significance of the chronology, as opposed merely to the acknowledgement of receipt of the March 7 letter, may have been lost upon Petitioner's counsel, who inexplicably asserted in opening statement that the ORC was issued on December 19, 1988. Transcript, page 57. Given the probable chronology of events recited in the preceding footnote, one of the few certainties concerning this matter is that the ORC was not issued on December 19, 1988. Intervenor is a Delaware corporation that owns property in Bradenton. Intervenor owns the western peninsula of Perico Island, which is described in detail below. Intervenor submitted oral or written objections to Bradenton not later than the transmittal hearing on November 23, 1988. Prior to transmitting the proposed plan to DCA, Bradenton removed the coastal high hazard designation from much of the western peninsula of Perico Island and changed the designation of the affected land to ten units per acre. Bradenton is a municipality located in western Manatee County. The city, which straddles the mouth of the Braden River to the east, generally lies along the southern bank of the Manatee River less than three miles upstream from where it empties into lower Tampa Bay. Wares Creek runs from south to north through the center of Bradenton and empties into the Manatee River. Palma Sola Bay divides the majority of the city from Perico Island. The southern half of Perico Island, which consists of eastern and western peninsulas, is within the city limits. Perico Island, which is generally bounded on the west by Anna Maria Sound and Sarasota Pass, is located between Tampa Bay to the north and Sarasota Bay to the south. Barrier islands to the west, most notably Anna Maria Island, tend to protect Bradenton from direct Gulf waves. On August 1, 1989, Bradenton adopted its comprehensive plan (Plan). As Bradenton noted accurately in its cover letter to DCA, no DCA representative attended the final adoption hearing on July 26, 1989, although Bradenton had requested that DCA send a representative to the hearing. 10/ On September 16, 1991, DCA issued a notice of intent to find the Plan in compliance. Designation of Coastal High Hazard Area Data and Analysis The Data and Analysis 11/ contains a Coastal Area Map, which is on page 150 of the Plan. The map depicts those areas below two feet elevation as the Coastal High Hazard Area. The map shows that the Coastal High Hazard Area includes about one-half of the western peninsula of Perico Island and relatively thin strips along the south and east borders of the eastern peninsula of Perico Island. The only other portions of Bradenton designated as Coastal High Hazard Area are parts of islands in the Braden River and two small parcels on the west bank of the Braden River. The Data and Analysis does not further address the Coastal High Hazard Area. In particular, the Data and Analysis fails to explain why the two-foot elevation was selected to define the Coastal High Hazard Area. The Data and Analysis does not mention the location of the Federal Emergency Management Agency velocity zone (V-zone) or the Department of Natural Resources Coastal Construction Control Line. The portion of Perico Island within the city is bounded on the north by State Road 64. Immediately north of State Road 64, the remainder of Perico Island is in unincorporated Manatee County. The Manatee County comprehensive plan designates the entire island north of the road as coastal high hazard area. However, the county plan notes extends the coastal high hazard area to the five- foot contour. The county plan also divides the coastal high hazard area into two areas: the more critical area, which corresponds to the V-zone, that is subject to wave action and the less critical area that is subject to storm- induced damage. Some testimony suggests that the Manatee County plan has more stringent land use constraints for land uses within the V-zone than for land uses elsewhere within the county's coastal high hazard area. Nothing in the record indicates the extent of the V-zone over any part of Perico Island. Early in the consideration by the City Council of the proposed plan, the coastal high hazard area included all land seaward of four feet elevation. The four-foot contour had been selected because of data suggesting that the "spring high tide" runs to an elevation of 3.62 feet, which was rounded up because Bradenton had only one-foot contour maps. By letter dated November 16, 1988, a representative of Intervenor complained that the four-foot contour was "scientifically unjustified and legally unsupportable." The letter states: Only a portion of the westerly peninsula is in the [V-zone] and even that portion of the property could be partially used with proper construction safeguards. The staff position of four feet seems to be based upon the fact that spring high tide occurs at elevation 3.56 feet but no one knows where that elevation occurs on this property nor does anyone know where the elevation 4.0 feet occurs on this property. The relationship between spring high tide and coastal high hazard is likewise unestablished. Bradenton's Chief of Planning and Zoning, Margaret Swanson, testified that the two-foot contour line "definitely" includes the entire V-zone. Deposition of Margaret Swanson, page 48. Jerry West, Bradenton Planning and Development Director and Ms. Swanson's supervisor, testified likewise at the hearing. Transcript, page 90. Petitioner produced no contrary evidence as to the location of the V- zone or the Coastal Construction Control Line. Likewise, there is no evidence that either peninsula has historically experienced destruction or severe damage from storm surge, waves, erosion, or other manifestations of rapidly moving or storm driven water. The spring high tide appears to be an unusual event, perhaps even occurring less often than annually. The evidence fails to link the spring high tide with destruction or severe damage from rapidly moving or storm driven water anywhere in Bradenton. Plan Provisions Coastal Management/Conservation Element (Coastal) Goal 5 states: Use of coastal areas in a way which preserves natural systems, provides for public access, and minimizes storm and flood hazards to population and property, including public facilities. Objective 1: Severely limit development in low lying coastal areas. Policy 1: A coastal high-hazard area shall be established through the Land Use and Development Regulations to include all coastal lands along the Braden and Manatee Rivers and Palma Sola Bay which are below 2 feet in elevation. Policy 2: Establish a conservation zone including all conservation lands as shown on the Future Land Use Map and all undeveloped areas below the Coastal High Hazard Line (2-foot contour line) and prohibit construction of building, roadways and parking areas in that zone except to provide shoreline access points as determined necessary or of overriding public interest by City Council. . . . Policy 3: Prohibit the filling of coastal areas below the 2-foot contour line except in cases where such lands are completely separated from the shoreline by land of higher elevation or where determined necessary or of overriding public interest by City Council. Policy 4: The City shall not locate infrastructure in the Coastal High Hazard Area (below the 2-foot contour line) except as determined necessary or of overriding public interest by City Council. * * * Objective 5: Keep population and investment low in areas vulnerable to coastal flooding. Policy 1: Designate undeveloped coastal acreage with areas below the 8-foot elevation contour line as PDP (planned development project) and limit residential development to low density below the 8-foot contour. Limit non-residential development below the 8-foot contour line to water dependent uses. Policy 2: Locate all public facilities outside of the coastal high hazard area. * * * Policy 4: Discourage the location of high density residential projects, public housing, housing for the elderly, mobile homes and group homes in high priority hurricane evacuation zones through the Land Use and Development Regulations. The Future Land Use Map (FLUM) designates as Conservation all of the land on Perico Island below the two-foot contour. According to Policy 1 under Objective 1 of the Future Land Use Element (FLUE), the "Recreational/Conservation" designation is for "[p]arks, designated open areas and conservation." No residential uses are permitted in the Recreation/Conservation category. The only FLUE goal is: A land use pattern which promotes the well being of the community in regard to compatibility of adjacent uses, building types and residential densities, efficiency of utilities and roadways, harmony with the natural environment and protection from natural hazards. Objective 1: Location of new development and redevelopment in a manner conducive to compatibility of land uses, sensitive to natural resources and natural hazards and consistent with the availability of public facilities. * * * Housing Element (Housing) Policy 1 under Objective 1 is: Designate vacant tracts of land for residential use on the future land use map except where unsuitable for that use because of incompatible adjacent existing uses, inappropriate elevation or drainage conditions or other safety hazard. State Plan Provisions There are no relevant provisions of the State Plan with which the Coastal High Hazard Area is arguably inconsistent. Designation of Ten Units Per Acre on Western Peninsula of Perico Island Data and Analysis The Data and Analysis identifies Perico Island and the islands of the Braden River as the two areas of major environmental concern in Bradenton. The Data and Analysis states: The value of these lands is that they are coastal lands with abundant sea life and habitat. In an urbanized area where much of the natural shoreline has been destroyed, these remaining lands should be protected because of their intrinsic value as well as because of their dwindling supply. Plan, page 157. The Data and Analysis notes that Perico Island is entirely within the 100-year flood zone and is less than five feet above sea level with "large areas" below the mean high water line. The western peninsula of Perico Island is lower than the eastern peninsula. The highest elevation on the western peninsula is five feet, which is within 100 feet of State Road 64. The elevation of most of the upland beyond 100 feet of the road is less than three feet. The elevation of much of the interior of the eastern peninsula is 3-4 feet. Although Perico Island contains Australian Pine and Brazilian Pepper, which are nuisance exotics, the Data and Analysis explains that valuable natural habitat remains: A great diversity of animal and plant life is found on the island[, including roseate spoonbills, brown pelicans, osprey, and an occasional bald eagle]. The mangrove swamps, mud flats, and marine grass flats fringing Perico Island support a variety of marine life including commercial and game fishing species such as mullet, trout, redfish, and snook, as well as shellfish. Plan, page 158. The habitat of the endangered West Indian Manatee includes the coastal areas in question. In addition to the above-noted animal species that are listed as endangered, threatened, or of special concern, the threatened butterfly orchid is also found on Perico Island. The Data and Analysis reports that Palma Sola Bay is a Class II waterbody, which means that it is suitable for shellfishing. Although it has not been approved for such purpose, its waters regularly satisfy Class II standards with only an occasional violation of the Class II bacteriological standards. According to the Data and Analysis, Palma Sola Bay has been designated as part of the Sarasota Bay Estuary of National Significance. Plan, page 98. Both Anna Maria Sound and Palma Sola Bay are part of the Sarasota Bay estuarine system and, as such, are Outstanding Florida Waters. 12/ Concluding its discussion of the two areas of major environmental concern to Bradenton, the Data and Analysis states: As with Perico Island, the Braden River and its wetlands are an invaluable natural resource. Such tidal wetlands not only reduce water pollution by filtering pollutant-laden runoff, but also influence water quantity by retaining water during dry periods and absorbing it during flooding. Wetlands also stabilize the shoreline and act as a hurricane buffer. They provide essential breeding, nesting, resting areas for myriad fish and bird species and support a diverse food web extending to terrestrial animals as well. ... Plan, page 159. The Coastal Vegetation map shows that the portion of the western peninsula corresponding roughly with the Coastal High Hazard Area is vegetated by coastal wetlands with considerable mangrove growth. Plan, page 151. Perico Island is one of "three areas where future development will impact the coastal area." Plan, page 160a. The Data and Analysis notes that an historic shell mound on the western peninsula must be "protect[ed from r]esidential development." However, the designation of the western peninsula at ten units per acre, as necessarily conceded by Mr. West, is not a low density. The Data and Analysis surmises that the impact of future development on at least the eastern peninsula of Perico Island is largely unavoidable: Because of a Development Order issued on a 1975 Development of Regional Impact application, the conditions of development are established and little can be done to modify them to meet the policies of this plan. Id. The Data and Analysis describes the 1975 development order as: authoriz[ing] 1512 dwelling units and a neighborhood commercial center and call[ing] for the preservation of lands below the 1.5 foot elevation and in an historic shell mound on the western peninsula of the site. Development of the western peninsula was prohibited by the approval stipulations. Plan, page 158. At the time of the application for what is known as the Spoonhill Bay DRI, Intervenor or an affiliate of Intervenor owned both peninsulas. After obtaining the development order, Intervenor sold all or part of the eastern peninsula to developers, but retained the western peninsula. The application for development approval was for a total of 1776 units on 102.6 acres. The entire land area was about 546 acres with 171 acres of mangroves conservation, 200 acres of marine conservation, 10 acres of historic preservation, almost 2 acres of neighborhood commercial, 26 acres of lakes, and 35 acres of other open space and recreation. The map accompanying the application shows two sites for historic conservation, both evidently above the two-foot contour line. According to the DRI application, both peninsulas of Perico Island contain about 184 acres above the 1.5-foot contour. The western peninsula encompasses 114 acres with about 10-16 acres higher than 1.5 to 2 feet in elevation. According to the application, the dwelling units per gross acre would be 3.2 and the dwelling units per net acre would be 9.7. The gross acreage density is based on total acres, including mangroves, lakes, and marine conservation. The net acreage density is impossible to calculate from the information provided. 13/ The development order, which was approved May 28, 1975, by the Bradenton City Council, approves the development subject to the following conditions: The developer shall initiate a positive program for the long run protection of the ecologically important undeveloped areas of the site. . . . * * * 3. The applicant shall work in consultation with the State Division of Archives, History and Records Management to insure the protection and preservation of the two sites of historical and archaeological significance found on the project site. Protection of the Indian Mound area shall be by deed, dedication, or other appropriate legal instrument to insure that such sites are preserved in perpetuity. * * * 5. With respect to responsibility for roadway improvements outlined in the transportation section of the DRI report: * * * (d) To further reduce traffic impact of the project, no residential development as originally proposed by the developer will be carried out on the westerly peninsula of the developer's property. ... Total number of residential units as proposed shall be reduced by 15% from 1,778 units to 1,512 units, all to be located on the easterly peninsula. * * * 7. Developer shall furnish at no cost to City not less than one acre site to accommodate governmental services that will be generated by the development, e.g., fire, police, etc. Site location shall be subject to approval of both parties. The Data and Analysis includes among "acreage not presently slated for development . . . 10 acres, western peninsula, Perico Island[,] includes Mangrove areas, low-lying areas and an Indian shell mound." Plan, page 12. However, the Data and Analysis determines that this area is "suitable for development," which means that the land is "above mean high water line and is served by public facilities." Plan, page 14. The soils map shows that the entire western peninsula, as well as the western half of the eastern peninsula, is characterized by nearly level, very poorly drained sandy and organic soils in tidal mangrove swamps. Plan, page 13. The soils of the western peninsula and western half of the eastern peninsula of Perico Island, as well as the soils of the Braden River islands, are the only soils in Bradenton that are generally "very poorly drained" and account for very little of the land area of the city. Both peninsulas of Perico Island are identified as Neighborhood 12.04 in the Plan. In the discussion of Neighborhood 12.04, the Data and Analysis states that a condition of the development order "was that the smaller of the two peninsulas is not to be developed because of environmentally sensitive and historically significant areas as well as traffic impacts." Plan, page 97. The Data and Analysis notes that the two shell middens, which date from "prehistoric times," have been damaged by erosion and amateur excavation. But the Data and Analysis recommends that the Indian mounds be professionally excavated or protected "because of their potential value in adding to the small amount of information available about prehistoric settlements in this area." Plan, page 97. The Data and Analysis notes that approved development has provided 600 units through 1986 at a density of 6.3 units per acre. As of that time, 116 acres were in residential use, one acre in commercial use, and 70 acres were vacant. The Data and Analysis projects that 800 units will have been constructed by 1990. In discussing Neighborhood 12.04, the Data and Analysis reports that no public recreation areas are proposed for the development, which will be served exclusively by private recreation areas. In addition, State Road 64 is the hurricane evacuation route for Perico Island as well as Anna Maria Island, which is also served by another escape route. The discussion of Neighborhood 12.04 concludes with several recommendations. Among them are the following: Require the preservation of and protection of the historic shell middens on the western peninsula if the peninsula is ever developed. Strictly enforce the flood protection ordinance for development of the island. Require mangrove and water quality protection as part of development approvals. Hurricane evacuation and traffic impacts on State Road 64 shall be considered as an important issue in review of applications for development approval. Any applications by property owners to increase the density of development in the neighborhood shall be denied. Participate in the studies of Sarasota and Palma Sola Bays under the National Estuary Program and utilize the recommendations coming forth from that program to the extent possible. Nothing in this Plan shall limit or modify the rights of any person to complete any development that has been authorized as a development of regional impact pursuant to Chapter 380 or who has been issued a final local development order, and development has commenced and is continuing in good faith. Any amendments to the development order for the Development of Regional Impact shall comply with or require compliance with all of the policies of this plan particularly those concerning protection of environmentally and historically sensitive lands, the coastal high hazard area and hurricane vulnerability zone. Plan, pages 98-99. The Evacuation Map shows that all of Perico Island is in Evacuation Zone A. Plan, page 153. This is the highest priority evacuation zone in Bradenton. This zone also encompasses bands of land along the Manatee River and both shorelines of the Braden River. Additional data and analysis are included in the Surface Water Improvement and Management Program for Tampa Bay published on August 30, 1988 (SWIM Plan). The SWIM Plan notes that the Tampa Bay estuary, of which Anna Maria Sound, Palma Sola Bay, and the Manatee and Braden Rivers are a part, suffers from interconnected problems, including habitat destruction (e.g., dredging, filling, hardened shorelines); water quality inclusive of eutrophication (e.g., point and non-point stormwater runoff, municipal and industrial effluents, septage); [and] altered freshwater inputs (e.g., dams, withdrawals). SWIM Plan, page 1. Addressing the functions of area wetlands, the SWIM Plan states: In addition to their contributions to the biology of the marine ecosystems, coastal and estuarine wetlands play an important role in modifying the geologic and hydrographic characteristics of the area. Acting as baffles, roots and leaves reduce the velocity of water over the bottom causing suspended particles to settle out and become trapped at the base of the plants. In this way mangroves, marshes, and seagrasses reduce turbidity, increase sedimentation rates, stabilize sediments, and attenuate wave action on adjacent shorelines. The binding and stabilization characteristics of these habitats are documented by reports of some coastal marshes and seagrass meadows surviving the destructive scouring forces of coastal storms and hurricanes in the Gulf states. SWIM Plan, page 23. However, these wetland systems "face increasing pressure from development of all types," notwithstanding the Warren S. Henderson Wetlands Protection Act of 1984. SWIM Plan, page 27. The water quality is directly threatened by the nutrients introduced into the water by, among other things, untreated stormwater runoff and the "extensive transformation of rural uplands to urban uses." SWIM Plan, pages 26-27. Plan Provisions The FLUM contains only two residential categories. All of Perico Island above the Coastal High Hazard Area is designated "Residential--maximum 10 units per acre." The other category permits up to 15 units per acre. FLUE Policy 1 under Objective 1 describes the Residential categories as follows: Residential with densities limited to 15 units per acre in the high density area and 10 units per acre in the moderate density area and limited by recommendations by neighborhood in this plan. . . . Neighborhood commercial uses permitted as part of the residential development plan. .. . FLUE Policy 2 under Objective 1 is: The recommendations for each neighborhood contained in this plan are hereby adopted as part of this plan and are to be adhered to in all land use decisions to be made by the City. FLUE Policy 3 under Objective 1 states: The future land use map, neighborhood recommendations and all other relevant policies under this plan are to be used as a basis for the revision of the land use and development regulations, including the zoning atlas. FLUE Objective 3 provides: Management of future development through adoption and enforcement of regulations which promote the use of land in a manner sensitive to public health and safety and to soils and topography. FLUE Objective 4 and relevant policies are: Objective 4: Limitation of population in first priority hurricane evacuation zones identified in the local and regional hurricane evacuation plan. Policy 1: Deny requests for increases in density on property approved for development if the property is located in the first priority regional hurricane evacuation zone. Policy 2: On the Braden River islands, designate as conservation area all lands below the 2 ft. contour line, and allow only recreational/open space or residential use at a gross density maximum of 3 units per acre on the uplands. Coastal Goal 2 is "[i]mprovement of surface water quality." Objective 1 is: "Preservation of water quality cleansing and erosion control capabilities of natural, vegetated shorelines." Policy 4 is to "[r]equire by ordinance by December 1, 1989 best management practices for erosion control during and after land alteration projects." Coastal Objective 2 under Goal 2 is: "Reduction of pollutant loads reaching waterways from urban stormwater." Policy 2 defers to land development regulations the job of establishing standards for new developments to "provide on-site detention and filtration of stormwater runoff to remove oils, silt, sediment, nutrients, and heavy metals, and [to] require erosion control during construction." Coastal Goal 4 provides: "Protection and enhancement of wildlife habitat and vegetation." Objective 1 deals with the Braden River estuary and islands and includes policies restricting development to uplands, generally prohibiting the removal of wetlands vegetation, and requiring that development proceed as a planned development project "to ensure site-sensitive planning and review." No similar provisions apply to Perico Island. Coastal Objective 2 under Goal 4 is: "Preservation of wetlands, including coastal wetlands vegetation, living marine resources and wildlife habitat." Policy 1 states: "[b]y December 1, 1989 adopt regulations to prohibit the removal of wetland vegetation except for limited access points." Policy 2 is, "[b]y December 1, 1989 require that development approvals for land with wetland area stipulate wetland protection measures to ensure that upland construction and land use do no affect the wetlands." Policy 3 states: "[b]y December 1, 1989 adopt regulations to require the identification of wildlife habitats as part of planned development project applications and . . . provide mechanisms to require protection of valuable habitat." Policy 5 provides: "[b]y December 1, 1989 adopt regulations to limit disturbance of seagrass beds by prohibiting development and land uses in seagrass areas and where they will result in an increase in boating in seagrass areas except where necessary to maintain existing facilities." Policy 7 is to develop with Manatee County a management plan for the Braden River estuary, Manatee River, and Palma Sola Bay. Policy 8 is to adopt by ordinance, within six months of their issuance, the recommendations of the Sarasota Bay National Estuary Program. Coastal Goal 6 is: "Fast evacuation prior to natural disasters such as hurricanes." Objective 1 is a "workable evacuation plan, geared toward maintaining present evacuation times." Goal 4 of the Public Facilities Element (PFE) provides: "Prevention of flood damage and improvement of surface water quality." PFE Objective 1 under Goal 4 sets forth the following provisions concerning drainage level of service standards. Policy 1a. The peak discharge rate from new development shall be equal to or less than the peak discharge rate that existed prior to development based on a 25-year frequency, 24-hour duration storm event. * * * Policy 1c. Internal or on-site drainage facilities of developments shall be designed to accommodate the stormwater resulting from a design storm of 10-year frequency, critical duration, based on the project site's time of concentration. Policy 2: The applicability of the level of service standards to various types and sizes of private development shall be set forth in the land use and development regulations adopted by December 1, 1989. PFE Objective 4 under Goal 4 is: "Nondegradation of capacity of natural drainage features." Policy 1 states: All new developments shall be required by land use regulations adopted by December 1, 1989 to provide stormwater retention and drainage facilities to curb increased runoff to natural drainage features. PFE Objective 5 under Goal 4 is: "Upgrading of existing drainage facilities to meet future needs." Policy 1 states: Stormwater facility improvements as proposed in the Comprehensive Stormwater Management Study, 1981 and subsequent updates shall be scheduled into the Capital Improvements program. 14/ State Plan Provisions The relevant provisions of the State Plan are set forth in Findings of Fact Paragraphs 74 et seq. Stormwater Provisions Plan Provisions Already cited above, PFE Goal 4; PFE Objectives 1, 4, and 5, as well as various policies under these objectives; Coastal Goal 2, Objective 2 under Goal 2, Policy 2 under Objective 2; and Housing Policy 1 under Objective 1 address stormwater and drainage. PFE Goal 1 is: Provision of public facilities in a manner which protects investments in existing facilities, promotes orderly, compact urban growth, and promotes the quality of natural resources, particularly surface waters. PFE Objective 1 and Policy 1 under Goal 1 are to maintain the applicable level of service standards for public facilities and not to issue development orders if the issuance would result in a violation of a level of service standard. PFE Objective 2 under Goal 4 is: "Correction of existing stormwater facility deficiencies by the year 2010." Policy 1 is: Stormwater facility improvements as proposed in the Comprehensive Stormwater Management Study 1981 hereby adopted as an appendix to this plan and subsequent updates shall be scheduled into the Capital Improvements program. PFE Objective 3 under Goal 4 is: "Water conservation through use of stormwater runoff for irrigation." SWIM Plan Provisions The SWIM Plan provides as follows with respect to water quality: Initiative 1. Reduce point and non-point source pollutant loadings to attain water quality necessary to restore and maintain healthy and productive natural systems, protect human health, and . . . attain the highest possible water use classification. * * * 1.c. Urban Stormwater Management Strategies: --Reduce the levels of nutrients and other contaminants in urban stormwater runoff by requiring, if feasible, that the quality of stormwater discharges be no worse than the State water quality criteria or the existing quality of the receiving water body, whichever is better. The feasibility of implementing this objective will be examined through a review of federal, state, District, and local rules pertaining to stormwater management. * * * --For all new upland development or redevelopment within the Tampa Bay watershed, runoff rates should not exceed those of natural, undisturbed conditions. The feasibility of implementing this objective will be examined through a review of federal, state, District, and local rules pertaining to stormwater management. Perico Island, Anna Maria Sound, and Palma Sola Bay, as well as the Manatee and Braden Rivers, are within the jurisdiction of the Southwest Florida Water Management District's SWIM program for Tampa Bay. State Plan Provisions Section 187.201(8) addresses water resources. The goal is to "maintain the functions of natural systems and the overall present level of surface and ground water quality." Policy 8 is to "[e]ncourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features." Policy 12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." Section 187.201(9) addresses coastal and marine resources. The goal includes ensuring that development does not "endanger . . . important natural resources." Policy 4 is to "[p]rotect coastal resources [and] marine resources from the adverse effects of development." Policy 6 is to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Policy 7 is to "[p]rotect and restore long-term productivity of marine fisheries habitat and other aquatic resources." Section 187.201(16) addresses land use. The goal is to direct development to those areas that have, among other things, the "land and water resources . . . to accommodate growth in an environmentally sensitive manner." Policy 6 is to "[c]onsider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding." Section 187.201(22) addresses the economy. The goal is to "promote an economic climate which provides economic stability, maximizes job opportunities, and increase per capita income for its residents." Policy 3 is to "[m]aintain, as one of the state's primary economic assets, the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resources." Historic Provisions Data and Analysis The Data and Analysis discloses that 85 structures in Bradenton were added to the Florida Master Site File following an historic survey in 1980. As a result of the survey, two historic districts were established: Downtown Bradenton and Old Manatee. The Data and Analysis reports that the Braden Castle ruins and Braden Castle Tourist Camp are included on the National Register of Historic Places. Plan Provisions The sole goal of the Historic Preservation Element (Historic) is: "To preserve Bradenton's architectural heritage as part of the effort to redevelop the old portions of the City." Historic Objective 1 is: "Disseminate information on the historic-architectural resources of the community and of the incentives for preservation and restoration of these resources." Historic Objective 2 is: "Restoration of historic structures and sites." Historic Objective 3 is: "Encourage other governmental agencies to consider historic and architectural value when taking actions affecting such properties in Bradenton and to modify their actions as to enhance rather than detract from these resources." Historic Policies include the dissemination of information pertinent to historic preservation, allowance of exemptions from the building code for certain historic rehabilitation, and cooperation with other governmental agencies in historic preservation efforts. Miscellaneous Provisions Plan Provisions Regarding Level of Service Standard for Recreational Facilities Recreation Element (Recreation) Objective 3 is: Provision of neighborhood parks located within walking distance of population served and having adequate acreage and facilities to serve the size and type of population served. Recreation Policies under Objective 3 include: Policy 1: One acre of neighborhood park per 500 people shall be the level of service standard for recreation. Policy 2: A neighborhood park shall be defined as a parcel of land of a half-acre or more located within a half-mile of the population served and having the following minimum improvements: benches, trees, open or grassy areas and play or exercise equipment facilities geared to the type of population served. Policy 3: Land use and development regulations adopted pursuant to this plan will require new residential development to provide recreation areas which meet the needs of that development based upon the adopted level of service standard for neighborhood parks. Such recreations shall serve in lieu of public neighborhood parks for new development. Plan Provisions Regarding Scheduling of Capital Improvements Necessary to Attain Level of Service D for Roads There are no roads identified in the Traffic Circulation Element (Traffic) for which Bradenton has jurisdiction that are projected not to achieve a level of service of D or better. The Data and Analysis states that seven road segments in Bradenton will attain a level of service standard worse than D during the planning timeframe. Plan, pages 125-27. However, the Data and Analysis indicates that the federal, state, or county has jurisdiction over each of these segments. Plan, page 114. Ultimate Findings of Fact Designation of Coastal High Hazard Area Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of supporting data and analysis. The Data and Analysis fails to indicate whether the Coastal High Hazard Area encompasses at least the V-zone or the land seaward of the Coastal Construction Control Line. However, Petitioner has failed to prove that the Coastal High Hazard Area excludes any part of the V-zone or the land seaward of the Coastal Construction Control Line. Testimony suggests that the Coastal High Hazard Area includes at least the V-zone. Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of the use of available appropriate data concerning historic damage and scientifically predicted damage of moving or storm driven water. The record contains no substantial evidence as to qualifying damage or destruction to areas outside the V-zone or landward of the Coastal Construction Control Line. Petitioner has failed to prove that the designation of the Coastal High Hazard Area is inconsistent with Plan provisions to protect coastal resources, protect the public from natural disasters, and maintain and hurricane evacuation times. Likewise, Petitioner has failed to prove that the designation of the Coastal High Hazard Area is inconsistent with provisions of the State Plan concerning housing, public safety, water resources, natural systems and recreational lands, land use, and governmental efficiency. As noted above, Petitioner failed to prove that the designation of the Coastal High Hazard Area is unsupported by data and analysis. Without proof that the designation of the Coastal High Hazard Area is incorrect, Petitioner is unable to prove the inconsistencies identified in the preceding Paragraph. Designation of Ten Units Per Acre on Western Peninsula of Perico Island Petitioner has proved to the exclusion of fair debate that the designation of up 10 units per acre is inconsistent with the criterion of supporting data and analysis, including a land use suitability analysis. The density of ten units per acre is, to the exclusion of fair debate, excessive under the circumstances. The soils are very poorly drained. The land above the Coastal High Hazard Area is very low. Except for 100 feet of frontage along the road, the entire upland will be flooded with the spring tide, which occurs with some regularity if not annually, as well as by flooding associated with hurricanes and tropical storms, even if the water is not storm driven. In the absence of an entirely elevated community, the spring tide and other coastal flooding will render inaccessible any interior residences, as well as inundate interior public facilities, unless natural drainage features and the mangrove fringes of the western island are significantly altered. The low elevation and very poorly drained soils increase the difficulty of effective stormwater management. At the same time, stormwater management is more critical on the island, which is surrounded by Outstanding Florida Waters and, in the case of Palma Sola Bay, Class II waters. The Spoonbill Bay DRI Development Order, which also serves as data and analysis, does not support the designation of ten units per acre for the western peninsula of Perico Island. The Development Order does not expressly transfer development rights from the western to the eastern peninsula. However, the Development Order rejects a request to develop the western peninsula at a density approximately equal to that accorded the western peninsula by the Plan. The Development Order expressly bases the denial upon transportation considerations. In light of other evidence, including quoted portions of the Data and Analysis, the cited transportation considerations probably included concerns as to the impact of transportation, including attendant stormwater runoff, upon the island's natural resources. In any event, Bradenton chose merely to designate up to ten units per acre on the western peninsula without addressing the bases for its denial, 15 years earlier, of approval to develop any portion of the western peninsula. Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with Coastal Goal 5, Objective 1 under Goal 5, Objective 5 under Goal 5, and Policies 1 and 4 under Objective 5. Goal 5 is to use coastal areas so as to preserve natural systems and minimize storm and flood hazards, among other things. Objective 1 is to limit development severely in low lying coastal areas. Objective 5 under Goal 5 is to keep population and investment low in areas vulnerable to coastal flooding. Policy 1 under Objective 5 is to limit residential development to low density below the eight-foot contour. Policy 4 is to discourage the location of high density residential projects in high priority hurricane evacuation zones, of which Perico Island is one. The Plan provisions set forth in the preceding paragraph preclude the designation of ten units per acre on the western peninsula. It is irrelevant whether the Plan's density designation is gross, so as to include some combination of Coastal High Hazard Area, mangrove fringe, wetlands, lakes, and Indian mounds, or net, so as to exclude all of such nonbuildable features of the land and waterscape characterizing the western peninsula. Even ten units per net acre is inconsistent with and repugnant to each of the provisions described above. 15/ Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with FLUE Objective 1; FLUE Objective 4; and Housing Policy 1 under Objective 1. Petitioner has not proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with FLUE Objective 3 or FLUE Policy 6 under Objective 1, which incorporates into the operative provisions of the plan Recommendation 6 for Neighborhood 12.04. FLUE Objective 1 is to locate new development in a manner sensitive to natural resources and natural hazards. FLUE Objective 4 is to limit population in the first priority hurricane evacuation zones. Housing Policy 1 under Objective 1 is to designate residential tracts except where unsuitable due to inappropriate elevation or drainage or other safety hazard. The designation of ten units per acre, even on a net acreage basis, is inconsistent with FLUE Objective 1 because the new development is not located in a manner sensitive to natural hazards and natural resources. The density designation is also inconsistent with FLUE Objective 4 to limit population in the first priority hurricane evacuation zones. There is no difference whatsoever between the density accorded the western peninsula, which is in Hurricane Evacuation Zone A, and the density accorded large areas of Bradenton, especially just east of Palma Sola Bay, although the latter areas are excluded on the Evacuation Map from any priority evacuation zone. The density designation is also inconsistent with Housing Policy 1 under Objective 1 due to the low elevation and poor drainage associated with the western peninsula. Policy 6 under FLUE Objective 1 incorporates the Recommendations for Neighborhood 12.04, which covers Perico Island. Recommendation 6 is to deny applications to increase the density of development in the neighborhood. FLUE Objective 3 is to manage future development through the adoption and enforcement of regulations to promote the use of land in a manner sensitive to the public health and safety and to soils and topography. Based on the Spoonbill Bay DRI Development Order, the density for the western peninsula may be viewed as zero. No evidence suggests what density the western peninsula may have arguably been accorded by a former comprehensive plan or zoning. However, it is possible to read Recommendation 6 as intending to incorporate the density given the western peninsula by the Plan, so Petitioner has not proved to the exclusion of fair debate that the density designation is inconsistent with Recommendation 6. Petitioner has failed to prove that the density designation is inconsistent with FLUE Objective 3 because of the latter's ineffectiveness. FLUE Objective 3 defers meaningful action to land development regulations and provides no upon real objective upon which an inconsistency determination could be based. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to coordinate coastal densities with the local hurricane evacuation plan. FLUE Objective 4 and Policy 1 under Objective 4 address this criterion. Petitioner has proved to the exclusion of fair debate that the Plan does not coordinate with the Spoonbill Bay DRI Development Order. As noted above, the density designation is consistent with Recommendation 6 of Neighborhood 12.04 only because it is assumed that the increased densities prohibited by Recommendation 6 are measured from the point of view of a former plan or former zoning, rather than the zero density accorded the western peninsula by the Development Order. In such a case, Recommendation 6 fails to coordinate with the Development Order. As noted above, the Data and Analysis fails to discuss why the Plan designates ten units per acre for the western peninsula when the Development Order prohibited any development. In effect, the Plan ignores the Development Order, and the resulting inconsistency is material in light of the impact of such a high density upon the natural resources of the peninsula and the public safety of future residents. However, the preceding two paragraphs are relevant only to consideration of the issue whether the density designation is supported by data and analysis. For reasons set forth in Conclusions of Law Paragraph 55, Rule 9J-5.006(3)(b)6., on which Petitioner relies, does not require an objective to coordinate with an DRI. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criteria of a policy to protect environmentally sensitive land and an objective to protect, conserve, or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat. These criteria are addressed by Coastal Goals 2, 4, and 5 and their objectives, as well as PFE Goal 4, which is to "[p]revent. . . flood damage and improve. . . surface water quality." Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to direct population concentrations away from accurately defined coastal high hazard areas. For the reasons noted above, Petitioner has failed to prove that the Plan inaccurately defines the Coastal High Hazard Area for Bradenton, In the absence of such evidence, the Recreational/Conservation designation effectively addresses this criterion. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criteria of an objective to encourage land uses that are consistent with the community's character and future land use and a policy to provide for the compatibility of adjacent land uses. The FLUE Goal, FLUE Objective 1, and Housing Policy 1 under Objective 1 address these criteria. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to maintain or reduce hurricane evacuation times between the barrier island and mainland. Coastal Goal 6 and Objective 1 address this criterion, as do FLUE Objective 4 and Coastal Goals 1 and 6, although less directly. Petitioner has proved to the exclusion of fair debate that the Plan is inconsistent with the provisions of the State Plan, construed as a whole. The density designation given the western peninsula of Perico Island conflicts with various provisions of the State Plan designed to protect water, coastal and marine resources, and to promote efficient land uses compatible with land and water resources. Stormwater Provisions Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are internally inconsistent with Plan provisions concerning water quality protection and improvement. Coastal Goals 2 and 5 protect water quality. Goal 2 is to improve surface water quality. Objective 2 under Goal 2 is to reduce pollutant loads reaching waterways from urban stormwater. Goal 5 is to use coastal areas so as to preserve natural systems. The stormwater provisions are inconsistent with the above-cited provisions protecting water quality because the level of service standard contains a serious loophole. PFE Goal 4, Objective 1, Policy 2 completely undermines the drainage level of service standard by providing that its applicability to "various types and sizes of private development" shall be as set forth in land development regulations adopted by December 1, 1989. For the reasons set forth in Footnote 15 above, relegating to land development regulations substantial provisions required by law to included in a plan is ineffective for reasons involving public participation and notice, compliance review, and enforceability. In effect, the applicability of the drainage level of service standard is subject to land development regulations. The evidence is insufficient to prove to the exclusion of fair debate the inefficacy of the stormwater provisions based on stormwater projects included in the Capital Improvements Schedule. The Data and Analysis discloses that Wares Creek has suffered most extensively from untreated stormwater runoff. However, Table 4 in the Capital Improvements Element discloses that most, if not all, of the scheduled stormwater projects will affect the Wares Creek drainage basin, as defined in the map of Storm Drainage Areas on page 208 of the Plan. 16/ For the reasons set forth in the preceding paragraph, Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Capital Improvements Schedule projects necessary to achieve treatment of stormwater sufficient to meet relevant water quality standards. Petitioner has proved to the exclusion of fair debate that the Plan is inconsistent with the criterion of a policy demonstrating how the local government will coordinate with the SWIM Plan, especially as to the latter's requirement that all stormwater discharge comply with relevant water quality standards. The Plan's drainage level of service standard, which is seriously undermined in the manner set forth above, is further hampered by the failure of the standard to include post- development water quality standards. As noted in the SWIM Plan data and analysis, the water quality of stormwater runoff is a key factor in preserving the health of the Outstanding Florida Waters that surround Perico Island and in restoring the health of other nearby waters. Due to the failure of the Plan submitted into evidence to contain as an appendix the Comprehensive Stormwater Management Study, 1981, Petitioner has failed to prove to the exclusion of fair debate that the scheduled capital improvements concerning stormwater projects fail to implement the SWIM Plan. In addition, the SWIM Plan does not generally impose project deadlines for various capital improvements. Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are inconsistent with the provisions of the State Plan, construed as a whole. The failure to incorporate into the Plan an effective level of service standard for post-development runoff rate for all developments and the failure to incorporate any level of service standard for post-development runoff water quality are inconsistent with the above-cited provisions of the State Plan. Historic Provisions Petitioner has failed to prove to the exclusion of fair debate that the Historic Element is inconsistent with the criterion of supporting data and analysis; the Historic goal is internally inconsistent with the Historic objectives and policies; or the Historic provisions are inconsistent with the criteria that objectives be measurable and policies describe how programs and activities will achieve the goals. None of the Historic provisions contradicts any of the Data and Analysis concerning historic resources. The Historic objectives and policies are in no way inconsistent with the Historic goal of preservation. The Historic objectives are measurable, and the policies describe how programs and activities will achieve the goals. Miscellaneous Provisions Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of establishing a level of service standard for recreational facilities. Recreation Objective 3 and Policy 1 establish a level of service standard for recreation by acreage. Policy 2 addresses the facilities that must be constructed for each park used to satisfy the recreational level of service standard. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Schedule of Capital Improvements projects necessary to achieve a level of service D for roads. No roads for which Bradenton is fiscally responsible are predicted to attain a level of service standard more congested than D during the planning timeframe.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that Bradenton's plan is not in compliance for the reasons set forth above. ENTERED this 13th day of February, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1992.
The Issue The issues to be resolved are whether the Respondent engaged in misconduct by involving himself in a conflict of interest and failing to take appropriate action; and whether Respondent was negligent in the practice of engineering.
Findings Of Fact The Board of Professional Engineers is charged with regulating the practice of engineering pursuant to Chapter 455, Florida Statutes and Chapter 471, Florida Statutes. The Respondent is charged with providing administrative, investigative, and prosecutorial services to the Board of Professional Engineers pursuant to Section 471.038(4), Florida Statutes (1997). The Respondent is a licensed professional engineer in the State of Florida and holds license number PE 29985. Mr. Dan Alford is the licensed community assistant manager for the Tropical Breeze Resort Association, hereinafter referred to as "the Association." In 1997, the Association was seeking a professional engineer or an architect to rebuild a building that had been destroyed by Hurricane Opal. The Respondent made a presentation to the Association. Because he was the low bidder and was recommended by a Board Member of the Association, the Respondent was selected. In July 1997, Charles Stokes Engineering entered into an agreement with the Association to act as the Engineer of Record and Threshold Inspector for a project identified as the Tropical Breeze Resort (the project). The Respondent was the responsible engineer for Charles Stokes Engineering, a corporation. In addition, the Respondent was to provide Construction Management services for the project. His responsibilities included letting out bids for the project to subcontractors, overseeing the bidding process, and overseeing the work through construction. In September 1997, the Petitioner notified the Association that Richardson Land Clearing was the apparent low bidder for Demolition and Site Preparation on the project. In October 1997, the Petitioner informed the Association that Shoreline Construction and Engineering was the low bidder for construction of the seawall for the project. In October 1997, the Association entered into a contractor agreement with Shoreline Construction and Engineering for construction of the seawall. The Respondent signed on behalf of the contractor and indicated he was the director of Shoreline Engineering and Construction. The Respondent listed his professional engineer's license number where the agreement requested a contractor's state license number. In October 1997, the Association entered into a contractor agreement with both Richardson Land Clearing and Shoreline Construction for Demolition and Site Preparation. The Respondent signed as the contractor for Richardson Landclearing and listed his professional engineer's license number where the agreement requested a contractor's state license number. The Respondent also signed as the contractor for Shoreline Construction and Engineering and identified himself as director of the corporation. The Respondent does not have a State of Florida license as a general contractor. Shoreline Construction and Engineering, Inc. is registered in the state of Florida as an engineering business. According to Ms. Jeannie Carlton, a member of Board staff, the Respondent is listed in Shoreline's application as the Secretary and the Registered Principal Officer. The Respondent failed to disclose to the Association his position in Shoreline Construction and Engineering. He did not reveal any interest in Richardson Landclearing to the Association. James O. Power, P.E., is a structural engineer who has been licensed in the state of Florida since 1947. He has over 47 years of structural engineering experience. Since 1980, he has been a consultant to the Department of Business and Professional Regulation in various professions including engineering, architecture, and contractors. Mr. Power was proffered and accepted as an expert in structural engineering. According to James Power, P.E., the Respondent's obligation was primarily to his client, the Association, as the construction manager of the project. In contrast, a contractor, within the limits of the contract, is free to do what is in his own best interest. The Respondent's position as Construction Manager and his position as an officer of Shoreline Construction and Engineering, Inc. created a conflict of interest for Respondent with his client. The Respondent's conflict of interest was not unavoidable. Respondent failed to: Disclose in writing to the Association the full circumstances of the possible conflict of interest, Assure the Association that the conflict would in no manner influence his professional engineering judgment or the quality of his services to the Association, and Promptly inform the Association of his business association interest or circumstances which might influence his judgment or quality of this services. The Construction Drawings, signed and sealed by the Respondent on July 16, 1998, were examined by Mr. Power. The plans examined by Mr. Power contained many deficiencies. The Respondent signed and sealed this set of engineering plans on July 16, 1998. The Respondent testified in his own behalf. He indicated that plans examined by Mr. Power were prepared for various building officials and permitting authorities. Although they are sealed by the Respondent, they are not final plans, as changes were made to satisfy the objections of the various building officials. The plans examined by Power were sufficient to permit contractors to bid on the job and to obtain approval from the building officials and permitting authorities. However, the Respondent did not prepare and submit final drawings until very late in the process. These plans were on a compact disk. On July 18, 1998, the Respondent billed the Association for $22,400, the amount agreed upon for a complete set of plans. However, this amount was not paid. The code to access the disk was not provided to the Association. The Respondent testified regarding his relationship in Shoreline. He was hired by Shoreline after the Shoreline/ Association Contract to consult on clearing buried debris which was delaying construction. The Respondent did not advise the Association of this relationship. The Respondent testified regarding his signing of the contracts with Shoreline and Richardson. The Respondent's testimony was not credible. Mr. Power identified several deficiencies regarding the plans submitted by the Respondent. The Petitioner says the plans introduced by the Respondent were not the final, approved plans, but a work in progress having been prepared and refined for the various permitting authorities. The Petitioner testified that such plans must be "sealed" to meet the requirements of the permitting authorities; however, Mr. Power testified that such plans should contain a stamp or comment limiting their use. Mr. Power's testimony was credible regarding the necessity for such a caveat. The Association never paid for the finished drawings. The final drawings are on a compact disk which cannot be opened without the password. Testimony conflicts about whether the password was provided to the Association. However, this is immaterial because the Association has not paid for the plans. There is no reason for the Respondent to open them and make them usable by the Association. Although the plans introduced at hearing were not complete, they should have contained details regarding the column system and beam system for the second story if they did not carry a use limitation clearly stated on the plans. Mr. Power testified regarding the deficiencies of the column system and the beams on the second floor connecting to the columns. His testimony was credible. The element of the Respondent's design were insufficient. In summary, the Petitioner showed that the Respondent improperly represented parties whose interest were or could be conflicting. This was not necessary and should have been avoided.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Board of Professional Engineers enter its final order revoking the Respondent's license. DONE AND ENTERED this 2nd day of June, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 June, 2000. COPIES FURNISHED: Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Charles C. Stokes, P.E. 35 Oats Road Cottonwood, Alabama 36320 Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Nannette K. Scoggins is the owner of the real property located at 5622 Gulf Drive, Holmes Beach, Florida in Manatee County. Nannette K. Scoggins' property, the petitioner's property, 5624 Gulf Drive, and the other adjacent property, 5620 Gulf Drive, are zoned as "A-1 Hotel-Motel" under the City of Holmes Beach Zoning Ordinance. On November 13, 1983, Mrs. Scoggins submitted to DNR an application for a permit for construction seaward of the coastal construction control line (control line). The proposed project, known as Jansea Place, would consist of two multifamily dwellings, four units to a building, divided by a swimming pool. A portion of the most seaward building would extend a maximum of 57 feet seaward of the control line. By letter dated July 11, 1984, DNR notified petitioner that the department was considering the permit application. The petitioner responded by letter dated July 18, 1984, objecting to any construction seaward of the control line. On October 1, 1984, petitioner received notification that DNR intended to recommend approval of the permit. The permit was scheduled for a vote by the Governor and Cabinet on October 16, 1984. The staff of DNR recommended approval of the permit. By telegram dated October 15, 1984, the petitioner requested an administrative hearing, and on October 22, 1984, petitioner filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The application for permit No. ME-89 is a complete application for permit to construct seaward of the coastal construction control line. On October 5, 1983, the Superintendent of Public Works of the City of Holmes Beach certified that this project does not violate any ordinance of the City of Holmes Beach. The plans for the proposed project are signed and sealed by an architect registered in the State of Florida, and the submitted plans comply with the design standards established in Rule 16B-33.07, Florida Administrative Code to resist adequately the natural forces associated with a 100-year return interval storm event. The plans, specifications, drawings and other information submitted to DNR with the application for permit to construct seaward of the coastal construction control line are complete and accurate, and meet the requirements of DNR for that purpose. Under the provisions of Rule 16B-33, Florida Administrative Code, the application was determined to be complete on August 6, 1984. The proposed construction is located landward of an existing vertical concrete bulkhead. The seawall was built jointly by the Scoggins and Mr. McLean, who owns the property immediately to the south of the Scoggins' property. The seawall was built after the hurricane of 1972 because the existing dune system had been destroyed. Since that time, the mean high water line has continued to encroach landward to the point where it is now east of the wall. However, the seawall is not necessary for the protection of the proposed building. Although the seawall would fail under the direct impact of a major hurricane, the proposed building is adequately designed to withstand the impact erosion, the wave loads, the winds, and the water forces associated with a major hurricane. The necessity and justification for the project's location in relation to the control line is stated in the application, and petitioner has not challenged the necessity or justification. The City of Holmes Beach Zoning Ordinance requires that the buildings be separated by a minimum of 30 feet. Since the proposed buildings are separated by 30 feet, the proposed seaward building is located as far landward as possible without violating the zoning ordinance. Erosion and structural damage occurred as a result of Hurricane Agnes in 1972 and the "No Name" storm in 1982 in the area between 1,000 feet south of the Scoggins' property and 500 feet north of the Scoggins' property. Although the beach was fairly stable from 1974 to 1979, the beach began to erode in 1980. When the seawall was built in 1974, the dune line was even with the seawall. However, as can be seen from a comparison of the photographs taken in June of 1979 with those taken in early 1985, the beach has eroded since June of 1979 and the dune line is now several feet landward of the seawall. The DNR recommendation for approval of the Scoggin's permit application was based upon historical erosion data for the period between 1940 and 1974, which was the most recent data available that could be used to review the project. Mr. Clark stated that the application was recommended for approval based on the design of the proposed building and its alignment with existing structures built seaward of the control line. The proposed project is located landward of a line of existing structures. Although the adjacent properties have been affected by erosion, there was no evidence presented to show that the existing structures located seaward of the control line have been unduly affected by erosion. In 1974, when the seawall was being constructed, the worker building the seawall dug up part of the petitioner's property and destroyed the sea oats he had planted. However, the proposed project has a driveway encircling the building which would provide vehicular access to the seawall if necessary. The proposed project will partially obstruct petitioner's view to the southwest. However, there was no evidence presented that petitioner's property or the other adjacent property, would be adversely affected in any other way by the proposed project. There was no evidence presented that the proposed project would be affected by, or have an effect on, beach or coastal erosion. The proposed project would have no effect on the beach dune system.
Recommendation Upon consideration of the foregoing, it is recommended that DNR issue Permit Number ME-89 to Nannette K. Scoggins. DONE and ENTERED this 28th day of June, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS 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 28th day of June, 1985.
Findings Of Fact The applicant, Tom Tona, owns the mortgage on the island consisting of Lots 1 and 2, Block 8, Elliots Point Subdivision, Fort Walton Beach, Florida. Mr. Tona has taken steps to perfect his ownership of the island and holds a property interest sufficient to afford him standing to apply for a permit. Elliots Point Subdivision is a residential subdivision development surrounding a lagoon which opens into Santa Rosa Sound in Fort Walton Beach, Florida. The island is located in the lagoon opening to Santa Rosa Sound. It has a large area of wetlands on the north shore. The wetlands function as a habitat for wildlife in the area. Water depths surrounding the island are shallow. The island currently acts as a barrier island for the property located on the shore of the lagoon. The barrier effect of the island helps to prevent the lagoon shore from erosion which would be caused by the wave action in the sound. However, the island, itself, is rapidly eroding due to the same wave action it protects the lagoon shore from. The evidence clearly demonstrated that unless this erosion is stopped the island will completely wash away along with the habitat, including wetlands, it now provides to wildlife and no longer protect the lagoon shore from the erosion it otherwise would experience without the presence of the island. The subdivision appears to be almost completely developed along the lagoon with single family dwellings. A canal consisting of two vertical seawalls runs in between the island and Elliots Point. The canal leads to a public boat ramp within the subdivision. The vertical sea wall of the canal along with the boats that pass through it is causing erosion to occur within the wetlands adjoining the seawall. It is this 55 foot area of the wetlands that Respondent proposes to construct part of the riprap revetment. Petitioner, Audrey Dickason, owns property on the far side of the lagoon from the island. Petitioner's property does not adjoin the island, but is close enough to the island to be within view of the island. On March 6, 1991, the applicant submitted an application to the Department of Environmental Regulation for a dredge and fill permit to construct a riprap revetment around the entire island. This was Mr. Tona's first application with the Department and at the time of filing Mr. Tona was very inexperienced in completing dredge and fill applications. The application was completed to the best of Mr. Tona's knowledge. Additionally, as happens with any form document, this application did not entirely fit the fact that this was an island project and the type of property interest Mr. Tona was asserting over the island. The application as originally filed did not list any adjacent property owners. Mr. Tona did not believe there were any adjacent property owners since an island was involved. Regardless of whether Mr. Tona should have listed any property owners of the subdivision, the failure to list any such property owners was not done to deceive or defraud the Department or the island's neighbors and in reality had no impact on the notification of parties who may have been interested in Mr. Tona's application. The owners of the property directly across from the island testified at the hearing and voiced their concerns to the Department during the processing of the application. Moreover, as indicated earlier, Petitioner's property does not adjoin the island. Since Petitioner's property does not adjoin the island, she was not entitled to be listed in Mr. Tona's application for the dredge and fill permit. The evidence simply did not establish that this debatable issue justifies the denial of Mr. Tona's application for a dredge and fill permit. The application filed by Mr. Tona also had the box indicating that he owned the property checked. The other box which could have been checked was that he would acquire an interest in the property. Neither box quite fit Mr. Tona's circumstances since he already had an interest in the property. The Department advised that it would be sufficient to check the ownership box and attach a copy of the mortgage assignment which gave Mr. Tona his interest. Mr. Tona followed the Department's advice. Again, the information as to ownership was not submitted to deceive or defraud the Department or the island's neighbors and in reality had no impact on the application process. In fact, the necessary information to determine Mr. Tona's interest was submitted to the Department. Again, there is nothing in the information submitted by Mr. Tona in the application which would justify denying that application as it has since been amended. As indicated above, after consulting with the Department, Mr. Tona amended his application so that the riprap revetment would only be constructed on a 55 foot strip along the northwest corner of the island immediately adjacent to the vertical seawall and on a 322 foot stretch of the island shore, beginning at the intersection of the vertical seawall and the southwest shore of the island and extending along the shore of the island to the edge of the wetland marsh on the north side of the island. The riprap would consist of clean limestone and would extend into state waters. The fill would not impede the flow of water or cause harmful erosion or shoaling. In fact, the purpose of the revetment is to stop the rapid erosion of the island which is currently taking place and preserve the wetland habitat which exists on the island. The evidence did not demonstrate that the type fill the applicant intends to use in the construction of the revetment would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The evidence demonstrated that the placement of the fill would create more habitat for fish and wildlife. The revetment is intended to be a permanent structure. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the proposed revetment met departmental standards for water quality and the public interest and issued an Intent to Issue with a draft permit authorizing the construction of the riprap revetment described above subject to several standard permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in Section 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other riprap revetments in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this riprap revetment. For similar reasons, the evidence demonstrated that the proposed revetment would not be contrary to the public interest. In essence, the evidence demonstrated that the revetment would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. In fact, the evidence demonstrated that the only effect on the environment the proposed revetment would cause would be a beneficial effect. Petitioner's fear that the grant of this permit will allow Mr. Tona to build a house on the island and thereby destroy her view is not the type of factor which may be considered in determining whether a dredge and fill permit should be granted or denied. See Miller v. Department of Environmental Regulation, 504 So.2d (Fla. 1st DCA 1988). Petitioner's concerns for the revetment's affect on the wildlife of the area were not established by any evidence. The evidence did demonstrate that Petitioner's concerns for the wildlife using the island were simply feinted by her and are belied by the fact that if the island is not preserved from erosion there will be no habitat for any wildlife to use once the island erodes away. Based on all the evidence, Mr. Tona's application for a dredge and fill permit to construct a riprap revetment should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing a dredge and fill permit to construct a riprap revetment as sought by Tom Tona in his permit application as amended and subject to the permit conditions contained in the Department's Intent to Issue. DONE and ENTERED this 23rd day of September, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3872 The facts contained in paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3 and 4 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 8 and 9 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraph 5 of Petitioner's Proposed Findings of Fact are immaterial. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are adopted in substance, except for the finding relating to notice which was not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. COPIES FURNISHED: Michael Mead P.O. Drawer 1329 Fort Walton Beach, Florida 32549 William Stone P.O. Drawer 2230 Fort Walton Beach, Florida 32549 Candi Culbreath Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether Franklin County (County) has given reasonable assurance that it satisfies all requirements for an after-the-fact permit authorizing the construction of a rock revetment seaward of the coastal construction control line (CCCL) on Alligator Drive, also known as County Road 370.
Findings Of Fact The Nature of the Dispute The origins of this dispute date back a number of years. In short, the County currently has two adjoining revetments seaward of the CCCL on County Road 370 (Alligator Drive) located on Alligator Point in the southeastern corner of the County.1 County Road 370, situated immediately adjacent to the Gulf of Mexico, is a vulnerable structure and eligible for armoring. See Fla. Admin. Code R. 62B-33.002(64). The old revetment is permitted; the new revetment is not. Pursuant to a Department enforcement action directed at both revetments, the County applied for an after-the-fact permit to authorize the construction of the new revetment. See Case No. 12-3276EF. The two revetments, totaling around 2,800 feet in length, abut County Road 370 and join near the intersection of Alligator Drive and Tom Roberts Road. The road itself is around 50 or 60 feet from the edge of the revetments. The old revetment extends around 2,000 feet west of the intersection while the new revetment extends 800 feet east of the intersection. There is a curve in the road at the intersection, and at that point the road elevation drops two or three feet for an undisclosed distance. The revetments, however, run in a straight line. There is no beach and dune system in front of the old revetment, while a small amount of exposed sand is located on the far eastern end of the new revetment. Due to storm events over the years, unauthorized debris has been placed on top of the old revetment by the County. Under the terms of the enforcement action, the County is required to remove the debris. This will reduce the height of the old revetment by several feet below its original height of nine feet National Geodetic Vertical Datum (NGVD).2 Where the two revetments join, however, the height differs by only around a foot. The Bank owns property across the street from the old revetment and alleges that, for several reasons, the site and design of the new revetment, coupled with the reduction in height of the old revetment, will cause erosion of the shoreline around the old revetment and expose County Road 370 and the adjacent upland Bank property to erosion. Although the current design and location of the old revetment have been finalized through prior agency action, the Bank has asked that the permit be denied unless the County relocates rock boulders from the new to the old revetment and raises its height back to nine feet NGVD. The County asserts that the Bank's real aim here is to require the County, at taxpayer expense, to reconstruct the old revetment to its original height. Otherwise, the Department will not waive the 30-year erosion control line restriction and allow the Bank to fully develop its property that is seaward of the CCCL. See § 161.053(5)(b), Fla. Stat. The Old Revetment Since the late 1970s, the County has owned and maintained that portion of County Road 370 that is the subject of this dispute. In May 1986, the Department of Natural Resources, which was later merged with the Department, issued to the County CCCL Permit No. FR-204 for the construction of the old revetment, then 1,500 feet long. The revetment was located approximately 350 feet east of Department Reference Monument R-211 to approximately 150 feet west of the Department Reference Monument R-213. In November 1994, the Department issued to the County CCCL Permit No. FR-446 for the re-construction of the old revetment, as well as a 500-foot extension of the eastern limits of the structure with granite boulders. The revetment, as extended, is located approximately 540 feet west of Department Reference Monument R-212 to approximately 140 feet east of Department Reference Monument R-213. The permit did not authorize placement of any construction debris within the revetment. With the extension, the total length of the old revetment is now approximately 2,000 feet. After an application for a joint coastal permit to conduct a beach and dune restoration project was filed by the County in September 2006, a Department site inspection revealed the presence of concrete debris and other debris material stacked on top of the old revetment. A debris removal plan was formulated by the Department, which was intended to be incorporated as a special condition in the joint coastal permit. In May 2011, the joint coastal permit was approved and included a debris removal plan. Because of financial constraints, however, the County did not undertake and complete the work relating to the beach and dune restoration plan or the debris removal plan. In January 2012, another inspection was conducted by the Department to document how much debris was in the old revetment and where it was located. The inspection revealed the presence of a significant amount of concrete debris and other debris material scattered throughout the revetment and continuing eastward. That same month, largely at the urging of the Bank, the Department issued a one-count Notice of Violation (NOV) alleging that after a storm event in July 2005, the County placed unauthorized construction debris and other debris material in the old revetment seaward of the CCCL, and that the debris still remained within the footprint of the revetment. See Case No. 12- 3276EF. (The Bank unsuccessfully attempted to intervene in the enforcement action.) As corrective action, the County was required to remove all debris, seaward of the CCCL, from and adjacent to the footprint of the old revetment no later than 60 days after the end of the hurricane season. That work has not yet been performed, probably because the work on both revetments will take place at the same time. After the debris is removed, the height of the old revetment will vary from between five and eight feet NGVD rather than the original nine-foot height. This was not the relief that the non-party Bank desired in the enforcement action. Instead, the Bank has always wanted the old revetment to be reconstructed to the nine-foot NGVD standard authorized in the original construction permit. Even so, the enforcement action is now final, as no appeal was taken by the County. Except for the unauthorized debris, the old revetment meets all Department standards. The New Revetment Under emergency circumstances, between September 2000 and July 2005 the County placed material, including granite rock boulders and debris material, in a location east of the old revetment, seaward of the CCCL. The construction activity is located approximately 140 feet east of Department Reference Monument R-213 to approximately 80 feet east of Department Reference Monument R-214 and is around 800 feet in length. However, the County did not obtain a permit for the temporary structure within 60 days after its construction, as required by section 161.085(3), Florida Statutes. In July 2005, Hurricane Dennis made landfall in the Florida Panhandle causing damage to the shoreline along Alligator Drive. As an emergency measure after the storm event, the County placed rock boulders that had been displaced back into the new revetment seaward of the CCCL. The County also placed other unauthorized concrete debris and debris material within the footprint of the rock revetment seaward of the CCCL. Again, no timely authorization for this work was obtained by the County. In August 2012, the Department issued an Amended NOV in Case No. 12-3276EF adding a second count, which alleged that the County had failed to obtain a permit for the placement of the rock boulders and unauthorized debris. On April 18, 2013, the Department issued a Final Order in Case No. 12-3276EF. As to Count II, it gave the County two options for corrective action: (a) that the County submit "a complete permit application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all applicable Department permitting rules and statutes"; or (b) that "the County remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan[,]" leaving that portion of County Road 370 without a revetment. 2013 Fla. ENV LEXIS 16 at *16. Desiring to protect its infrastructure, the County opted to apply for an after-the-fact permit. The Permit Application In March 2013, the County filed an application for an after-the-fact permit for the construction of the new revetment. As directed by the Department, the County proposes to construct a new revetment located between Department Reference Monuments R- 213 and R-214. The height of the new revetment will be around nine feet NGVD, while its slope will be one vertical to three horizontal. The old revetment is not quite as steep, having a slope of one vertical to two horizontal. The application includes a debris removal plan for the removal of construction debris as well as other debris scattered through the new revetment. Construction debris occupies a large portion of the new revetment and largely appears to be associated with storm damaged concrete sidewalk. All derelict concrete and asphalt material that is located water ward of Alligator Drive and landward of the mean high water line is to be removed. Both the County and its engineering consultant will monitor the work at the project. After reviewing the application, the Department proposed to issue after-the-fact CCCL Permit FR-897. The Bank then filed its Petition, as later amended. Petitioner's Objections As summarized in its PRO, the Bank alleges that the County did not give reasonable assurance that the following statutory and rule provisions have been satisfied: section 161.053(1)(a), which provides that special siting and design considerations shall be necessary seaward of the CCCL "to ensure protection of . . . adjacent properties"; rule 62B-33.005(2), which requires that the applicant provide the Department with sufficient information to show that adverse impacts associated with the construction have been minimized and that construction will not result in a significant adverse impact"; rule 62B-33.005(3)(a), which requires that the Department "[d]eny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects"; rule 62B-33.0051(2), which provides that armoring "shall be sited and designed to minimize adverse impacts to the beach and dune system, marine turtles, native salt-tolerant vegetation, and existing upland and adjacent structures"; and rule 62B-33.0051(2)(a), which requires armoring to "be sited as far landward as practicable to minimize adverse impacts . . . on existing upland and adjacent structures." See PRO, pp. 16-17. A common thread in these regulatory citations is that a revetment should be constructed in a manner that does not cause adverse impacts on "adjacent property." Except for the above cited provisions, no other permit requirements are contested, and the County's prima facie case satisfied those other requirements. The Bank's odd-shaped property, acquired in a foreclosure proceeding, abuts that portion of Alligator Drive immediately adjacent to the old revetment. The eastern boundary of the Bank's property is at least 300 feet west of the new revetment and extends westward along County Road 370 until it intersects with Harbor Circle. The entire tract is separated from the old revetment by County Road 370, a two-lane paved road. The property was once used as a KOA campground; however, the predecessor owner acquired development rights for a Planned Unit Development, which apparently cannot be fully developed unless the old revetment is raised back to its original height by the County or some other acceptable form of erosion protection is provided by the Bank at its own expense. The essence of the Bank's complaint is that the new revetment, as now sited and designed, will expose the old revetment to a higher rate of erosion, and ultimately accelerate the erosion of its property across the street. The Bank asserts that this will occur for three reasons. First, the removal of construction debris from the old revetment will lower its height, weaken the structure, and create a "discontinuity in height and composition between the revetments," resulting in increased exposure to erosion. Second, the toe of the new revetment (at the western end of the structure) will extend ten feet further seaward than the old revetment, creating a discontinuity and placing the old revetment at higher exposure to erosion. Finally, the Bank contends a discontinuity already exists between the two revetments due to the curved shape of the road at the intersection, causing the western end of the new revetment to extend further seaward than the old revetment. The Bank argues that the discontinuity will amplify the wave action on the shoreline during a severe storm event and eventually cause a breach of the old revetment. In sum, the Bank is essentially arguing that unless the two revetments mirror each other in height and slope, and consist of the same construction materials, the after-the-fact permit must be denied. The Bank's expert, Mr. Chou, a coastal engineer, was employed shortly before the final hearing and made one visit to the site. Regarding the removal of unauthorized construction debris from the old revetment, Mr. Chou was concerned that, while not ideal, the debris offers a degree of shoreline protection. He recommended that if removed, the debris be replaced with boulders comparable to the design standard of the new revetment. However, the record shows that when the loose and uneven debris is removed from the old revetment, the existing rocks will be moved to an interlocking or "chinking" configuration that actually enhances the stability and integrity of the structure.3 The Bank is also concerned that the height and slope of the two revetments differ. Mr. Chou testified that there exists the increased potential for erosion as a result of what he described as a discontinuity, or a difference of characteristics, between the two revetments. He opined that the protective function of the old revetment will be compromised by the removal of the granite boulders, which will lower the overall height of the revetment between two and four feet. According to Mr. Chou, if the new revetment suffers a direct hit by a major storm, i.e., one capable of dislodging the armor, he would "expect damage, significant damage, right next to it." Mr. Chou conceded, however, that if a permit is not approved, and the County elects to remove the new revetment, it could result in a significant adverse impact to property located along Alligator Drive. Mr. Chou further acknowledged that there will be no significant adverse effect on the old revetment during "everyday" winds, waves, and currents. Finally, he agreed that if the toes of the new and old revetments are essentially the same, as the certified engineering plans demonstrate they are, it will "minimize" the discontinuity that he describes. Notably, in 2005, Hurricane Dennis actually caused accretion (an increase in sand) on the Bank property, rather than erosion. While there are some differences in height and slope between the two revetments, no meaningful differences from an engineering perspective were shown. Through the County's coastal engineer, Mr. Dombrowski, who over the years has visited the site dozens of times and worked on a number of major projects in the area, it was credibly demonstrated that the old and new revetments will, in effect, form one continuous armoring structure that will provide shoreline protection along Alligator Drive. In terms of toe, slope, height, and construction material, there will be one continuous and straight revetment along the road, with a "fairly consistent elevation and slope going from one end to the other." If a major storm event occurs, the impacts to both revetments will likely be the same. In any event, there is no requirement that the County construct a revetment that is storm proof or prevents severe storm damage. The preponderance of the evidence demonstrates that the new revetment is consistent with the siting and design criteria in rule 62B-33.0051(2). The design of the new revetment is consistent with generally accepted engineering practice. The new revetment is sited and designed so that there will be no significant adverse impacts, individually or cumulatively, to the adjacent shoreline. See Fla. Admin. Code R. 62B-33.005(3). The County has provided the Department with sufficient information to show that adverse and other impacts associated with the construction are minimized, and the new revetment will not result in a significant adverse impact to the Bank's property. See Fla. Admin. Code R. 62B-33.005(2). The new revetment should toll erosion – which now occurs on Alligator Point at the rate of five feet per year -- and provide shoreline protection. Finally, the construction of the new revetment will not cause an adverse impact to the old revetment. For all practical purposes, the two revetments have existed side-by-side since 2005. The Bank failed to offer any credible evidence that the new revetment has had a significant adverse impact on the old revetment over the last nine years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the County's application for after- the-fact permit number FR-897. DONE AND ENTERED this 23rd day of July, 2014, in Tallahassee, Leon County, Florida. S D. 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 23rd day of July, 2014.
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
Findings Of Fact The Petitioner has an option to purchase property located at 301-307 Island Way Boulevard, Island Estate, Clearwater, Florida, on which he proposes to construct ten townhouses. Initially Petitioner asked for two variances. The first variance was for 25.12 feet to allow construction on a lot only 124.88 feet wide. This variance was granted for this nonconforming lot. The second variance, for 13.24 feet to allow construction of the ten townhouse complex 12 feet from the side property line, was denied by the Clearwater Code Adjustment Board. The Board concluded the variance requested did not meet the requirements of Section 45.24 of the Clearwater Land Development Code. Petitioner presented evidence that if the lot had been 150 feet wide they would have had 90 feet to build on without requesting any variance. However, since the lot was nonconforming, in order to have 89 feet on which to place the building, the requested variance would be necessary. Petitioner also presented evidence that the construction of ten townhouses on this lot is necessary for the project to be on a solid economic basis. Subsequent to the denial of this variance by the Development Code Adjustment Board, Petitioner submitted plans, which have been approved by the City of Clearwater, to erect nine townhouses on this property without any variance needed. However, these townhouses would be smaller than would be the ten townhouses initially proposed and would provide a lesser return on the capital invested.
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.
