The Issue The issue is whether to approve Steven A. Walker's application for a coastal construction control line (CCCL) permit authorizing him to conduct certain construction activities at 100 Park Avenue, Anna Maria, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: History of the Proceeding Since 2005, Petitioner has owned property at 104 Park Avenue, Anna Maria, Sarasota County, Florida. The parcel fronts on the Gulf of Mexico and is adjacent to property owned by the Stephen A. Walker Land Trust (Land Trust) located at 100 Park Avenue. The Trustee of the Land Trust is Stephen A. Walker, who is the applicant in this proceeding. On March 5, 2009, Mr. Walker filed an application with the Department for a permit authorizing the construction of "a new single family residence with a pool, driveway and multiple structures" seaward of the CCCL on his parcel. See Joint Exhibit 11. The application was accompanied by a letter from the City Planner, B. Alan Garrett, indicating that the proposed activity "does not contravene the City of Anna Maria local setback and pervious coverage requirements of the zoning code provisions." See Joint Exhibit 3. On June 26, 2009, the Department, through its Bureau of Beaches and Coastal Systems, issued a Final Order granting the application subject to certain general and special conditions. See Joint Exhibit 47. A Notice to Proceed with the construction was issued the same date. See Joint Exhibit 46. Separate written notice of the Department's proposed action was also served on both Petitioner and his attorney. See Joint Exhibits 49 and 50. On July 22, 2009, Petitioner filed his Petition with the Department contesting the proposed agency action. See Joint Exhibit 51. As grounds, Petitioner contended generally that the environmental permitting requirements under Florida Administrative Code Rule 62B-33.0052 had not been met, and that the proposed activity violated both the City's Plan and the zoning code. Id. Evidence regarding the latter allegations was later excluded as being irrelevant. See Order dated March 12, 2010. At hearing, counsel for Petitioner represented that he was no longer alleging that the application did not qualify for a permit under the environmental permitting requirements of the rule. However, he continued to assert that the proposed construction will violate the City's Plan and zoning code. A suit in circuit court has been filed seeking an adjudication of those claims and apparently is still pending. See Friday v. City of Anna Maria, Case No. 2010-CA2369 (12th Cir., Manatee Cty Fla.). Permitting Criteria The general permitting requirements for issuance of a CCCL permit are found in Rule 62B-33.005. There is no dispute that these criteria have been satisfied. Rule 62B-33.008 contains the permit application requirements and procedures. Paragraph (3)(d) of the rule provides that an application for a CCCL permit shall contain the following information: Written evidence, provided by the local governmental entity having jurisdiction over the activity, that the proposed activity, as submitted to the Bureau, does not contravene local setback requirements or zoning codes. Joint Exhibit 3 is a letter dated February 2009 authored by B. Alan Garrett, City Planner, who states that he had reviewed the application and plans filed with him on February 2, 2009, and that the proposed construction "does not contravene the City of Anna Maria local setback and pervious coverage requirements of the zoning code provisions." This letter satisfies the requirement of the rule.
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 granting the application of Stephen A. Walker, Trustee, for a coastal construction control line permit authorizing certain activities seaward of the CCCL at his property in Anna Maria, Florida. DONE AND ENTERED this 24th day of May, 2010, 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 24th day of May, 2010.
The Issue Whether Appellant was wrongfully denied a variance of 21.33 feet to construct a second floor deck at 673 Bay Esplanade, Five Palms Motel Condo, Clearwater, Florida.
Findings Of Fact John Shaw, a resident of Massachusetts, purchased the condominium for which the variance is here requested in December, 1988 without first visiting the property or inquiring about zoning restrictions. The unit purchased is on the second floor of a two story building earlier converted from a hotel or motel into condominiums. The seller told Shaw he could construct a deck over the existing deck on the ground floor condominium below the unit purchased by Shaw. While the construction of this deck was in progress it was discovered no permit had been pulled for the project and the work was stopped. The subsequent application for a permit was denied because the proposed deck encroached some 21.33 feet into the setback area. The application for a variance was denied by the Clearwater Development Code Adjustment Board and this appeal followed. The two buildings comprising this complex were erected many years ago and are non-conforming, i.e., the buildings themselves violate the current Development Code. An existing deck extending into the setback area was constructed on the unit directly below the condominium purchased by Shaw and a similar deck extending to the seawall was constructed on an adjacent building. No permits are on file for those decks. Construction of the proposed deck would improve the livability of the condominium greatly by expanding the area usable for looking seaward. The condominium has been used without this deck for many years. This property is zoned CR-24 and the setback requirement is 25 feet from the water's edge.
Findings Of Fact After DNR issued a cease and desist order to Petitioner, forbidding further construction on his Walton County lot seaward of the coastal construction control line, he applied for an after-the-fact permit authorizing work to go forward on a three-story ten-unit condominium, which would occupy some 95 percent of the width of his lot, and extend 34 feet seaward of the coastal construction control line. Petitioner's Exhibit No. 1. DNR staff stated the following, in recommending denial: There presently exists over 160 feet of property located landward of the control line in which the proposed structure could be sited. The staff is concerned that the proposed encroachment is not justified, nor considered necessary for reasonable use of the property. In addition, staff is concerned about the potential cumulative effects of siting major structures seaward of the control line along this section of the coast, which contains a number of undeveloped lots, as well as redevelopable lots. The cumulative impact of such construction will result in significant disturbance and damage to well-established, mature vegetation and eventual destabilization of the coastal barrier dune ridge. Also, the proposed encroachment and shore-parallel site coverage will have an adverse impact on the natural recovery processes of the beach/dune system following the impact of a major storm event. The proposed building is not designed in accordance with the standards set forth in Subsections 16B-33.05(6) and 16B-33.07(1) and (2), Florida Administrative Code. File number WL-183 ATF has been assigned. . . . RECOMMENDED DENIAL, ASSESMENT OF A CIVIL FINE OF FIVE THOUSAND DOLLARS ($5,000) AND REQUIRING REMOVAL OF THE EXISTING UNAUTHORIZED CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE. Petitioner's Exhibit No. 1. The "reference [to] the extensive site coverage was not only the shore parallel site coverage, but also included the proposed encroachment seaward of the control line." (T. 18). DNR staff opposes construction on Mr. Hill's lot of a habitable structure seaward of the control line. (T. 19, Petitioner's Exhibit No. 2, pp. 12 and 13). Petitioner Hill timely instituted formal proceedings on his application, WL-183 ATF, and Case No. 85-2455 is still pending. Shore Parallel Site Coverage Since October of 1983, in processing coastal construction permit applications, DNR has taken into account "shore parallel site coverage," i.e., DNR staff have considered the relationship between lot width and the width of any structure proposed to be built fronting the water, seaward of a coastal construction control line. A succession of waterfront buildings stretching the entire width of their respective lots walls off the foreshore from more landward dunes. "[I]f you cover an extensive portion of the beach in the shore parallel direction, you tend to she[a]r off the upland area from the beach area and limit and inhibit the natural recovery processes of the dune system." (T. 15) With respect to Petitioner's proposed project and any other of this size and shape planned this far down on a similarly platted, developed and configured beach, DNR engineers put the maximum acceptable width of the structure at 50 to 60 percent of the lot's gulf frontage. Petitioner's Exhibit No. 2, p. 23; T. 20, 22, 32, 35. DNR has no written policy limiting the width of structures built seaward of the coastal construction control line. Although DNR endeavors to treat similar sites similarly, sites vary significantly and different widths may be allowed on similar sites when structures with different depths are planned. Petitioner's Exhibit No. 3, pp. 9-13. In its post-hearing memorandum in support of Petitioner's rule challenge to DNR's non-rule policy regarding side setbacks, Petitioner quotes the following: Q: Would you generally recommend this 50 to 60 percent shore-parallel site coverage for other types of similarily situated lots, either on the same beach or on other beaches in Florida? A: The reference 50 to 60 percent is something we would feel comfortable with in certain areas of the beach that have similar characteristics and existing--similar situations regarding existing development, potential for redevelopment, stability of the dune area, and things of that nature. It certainly wouldn't apply--those figures wouldn't apply to all areas of the Florida coastline. [Deposition of Brett Moore, September 10, 1985, pp. 16-17.] Q: But for, say, a similarly situated beach, maybe you would try to get people to move toward that time of width without specifically telling them that that's the width of coverage that you desire. A: For the two areas I mentioned, I feel that something in the vicinity of 60 percent site coverage would be acceptable to the staff, and that's what I would tell people if someone proposed a project in that area today. [Deposition of Brett Moore, p. 27.] A: Given that amount of encroachment on the dune, I feel that a reasonably acceptable shore-parallel coverage, given that shore- normal coverage, that would not have a significant adverse impact, would probably be between zero percent coverage and thirty percent coverage. In terms of what we would recommend, generally, in what kind of dune encroachment of a major structure, approximately a thirty-foot width, or about fifty percent coverage would probably be acceptable in terms of the impact to the dune and the recovery potential following a major storm event. Q: Okay. Did you--so fifty percent would probably be okay by your lights; is that a fair characterization of that statement you just made? A: Yeah, I could recommend a fifty percent coverage there, . . . In terms of what I would recommend for a site like that with that kind of encroachment with a major structure on the dune, I would recommend approximately fifty percent coverage. Q: What about for a similar type of beach, not one down in Charlotte County or any place like that, but let's just say a similar type of beach somewhere in the panhandle, same relative dimensions, topography and the like? A: So for the same---for the same site, I would recommend the same. [Deposition of Ralph Clark, pp. 10-11.] At 2-3. Neither this evidence nor any other adduced at hearing proved the existence of an agency statement of general, statewide application purporting in and of itself to have the direct and consistent effect of law. It is DNR's policy to treat similarly situated landowners similarly and to consider cumulative impact. The parties proposed orders contain proposed findings of fact which are addressed by number in an appendix to this final order.
The Issue The issue is whether, pursuant to Section 161.053, Florida Statutes, and Rule 62B-33.005, Florida Administrative Code, Petitioners are entitled to a coastal construction control line permit to build a single-family residence in Volusia County with a structural elevation of 19 feet National Geodetic Vertical Datum, not 24 feet National Geodetic Vertical Datum, as required by Respondent.
Findings Of Fact Petitioners own an undeveloped lot located at 4279 South Atlantic Avenue in the Wilbur-by-the-Sea subdivision in unincorporated Volusia County. Mr. Humphries' family has owned the lot for 50 years. The rectangular lot is 210 feet deep and 50 feet wide. The narrower end abuts the Atlantic Ocean on the east and South Atlantic Avenue on the west. The south boundary of Petitioners' lot abuts a developed lot. The house located on this lot has a finished- floor elevation of 26.15 feet National Geodetic Vertical Datum (NGVD). This is consistent with the structural elevations of most of the residences in the immediate vicinity of Petitioners' lot. Even though the seaward extent of Petitioner's proposed structure is roughly in a line with the seaward extent of the nearby homes, the issue in this case is the structural elevation. The north boundary of Petitioners' lot abuts the 50- foot-wide right-of-way of Major Street. In 1984, a wooden walkway was constructed in the southern half of the Major Street right-of-way to allow pedestrians access to the beach. By that time, Major Street was no longer open for vehicular access. However, the construction and maintenance of Major Street may have contributed to the lower elevations on the north boundary of Petitioners' lot, as described below. Nearly all of the lots in the vicinity of Petitioners' lot have been developed; most, if not all, of them contain single-family residences. Petitioners, who are nearing retirement, wish to construct a house that would accommodate them in their later years when they expect their mobility to be reduced. Petitioners' house will sit atop a prominent secondary dune, as do all of the other oceanfront homes in the immediate vicinity. The house will also be confined roughly to the landward half of the lot. These factors mean that the relatively short driveway leading from South Atlantic Avenue to the garage will be relatively steep. Petitioners proposed a reduction in the top of the dune to reduce the steepness of the driveway and the difference in finished-floor elevations between the garage and the house. Generally, the south side of Petitioners' lot is higher than the north side. The seasonal high water line is 8.4 feet NGVD. The lot's east boundary, which is 7-8 feet landward of the seasonal high water line, is about 11.5 feet NGVD. The elevation of the south boundary rises to 28.5 feet NGVD, at a distance slightly east of the most seaward extent of the 10-foot wooden deck that is the most seaward structure proposed by Petitioners. The elevation of the north boundary does not rise much; over the same distance, it reaches only 12 feet NGVD. Proceeding westward, toward South Atlantic Avenue, the south boundary drops from its 28.5-foot elevation. Parallel to the proposed house, the boundary remains at about 25 feet NGVD, except it drops to about 20 feet at the point where the house would meet the garage. For the length of the 26-foot garage, the south boundary drops to 18.5 feet NGVD. For the length of the 30-foot section of driveway between the garage and the west boundary, the south boundary drops from 18 feet NGVD to 17 feet NGVD. The north boundary rises to its highest point, 20.6 feet NGVD, at a point just landward of the point along the boundary closest to the junction between the proposed wood deck and the house. Running parallel to the proposed house, the north boundary drops to about 18 feet NGVD (directly across from a point along the south boundary that reaches about 25 feet NGVD) and then to about 17.5 feet NGVD, at a point just landward of the point closest to the junction of the proposed house and garage. The proposed house would occupy elevations, prior to proposed site preparation, of about 28 feet NGVD at the seaward side, 22-26 feet NGVD at the midpoint, and no more than 21 feet NGVD at the landward side. The proposed deck, house, and all but a sliver of the garage lie seaward of the coastal construction control line. The northeast corner of the proposed house is 72 feet seaward of the coastal construction control line. The dune is largely vegetated. The vegetation includes sea oats, shrubs, and some palm trees, although Brazilian pepper, a nuisance exotic, also vegetates part of the dune. Just seaward of the southeast corner of the proposed deck is a hole, perhaps from past excavation, about ten feet deep and occupying 8-10 percent of the lot. This is the only portion of the lot significantly below-grade. Overall, the dune is functional and healthy. To the extent that it has been disturbed in the past, the dune seems to be recovering vigorously. On or about July 21, 1999, Petitioners applied for a permit to construct a residence seaward of the coastal construction control line. In their application, Petitioners proposed a structural elevation of 19 feet NGVD. The structural elevation, which is about two feet lower than the finished-floor elevation, is the lowest portion of the effectively horizontal structural elements supporting the floors and walls of the structure. Respondent's examination of the application raised concerns about the proposed structural elevation of 19 feet NGVD. The greater elevation of much of the dune under the footprint of the house would necessitate the relocation of dune materials on the lot or removal of dune materials off the lot. However, discussions between Respondent's representative and Mr. Bullard, Petitioners' engineer, failed to identify design modifications upon which both sides could agree. Thus, on June 5, 2000, Respondent issued a Final Order and Notice to Proceed Withheld (Final Order). The Final Order states that Respondent found that Petitioners' application was complete on March 6, 2000. Although the Final Order generally contemplates that construction will eventually proceed, Special Permit Condition 1 prohibits construction until Respondent issued a written notice to proceed. Special Permit Condition 2 warns that Respondent will not issue a notice to proceed until Petitioners submit plans that raise the structural elevation to 24 feet NGVD, relocate all excavated materials seaward of the coastal construction control line (but not more than 120 feet seaward of the line), prohibit net excavation seaward of the coastal construction control line, and specify the planting of all filled or disturbed areas with salt-resistant native vegetation transplanted from onsite areas that will be excavated and other sources, as needed. Special Permit Condition 7 requires Petitioners to obtain the fill material from a source landward of the coastal construction control line. The fill material also must be of a sand that is similar to that onsite in terms of grain size and coloration. However, nothing in the Final Order specifies any requirement to replicate present--or design scientifically verified new--seaward and landward slopes of the portion of the impacted dune. In resisting Respondent's demand to raise the structural elevation, Petitioners have sought to reduce the slope of their driveway, which involves traffic-safety issues in turning on and off busy South Atlantic Avenue, and eliminate the need for an extensive design modification to allow wheelchair- bound persons access to the house from the garage. At the hearing, Petitioners offered mitigation in the form of an artificial dune to be constructed seaward of the residence with excavated materials. However, this proposal would destroy existing vegetation and failed to specify slopes, so that the artificial dune would likely suffer significant and rapid erosion. Petitioners have failed to prove that their proposed construction activities, with a structural elevation of 19 feet NGVD, would not adversely impact the most prominent dune landward of the ocean, so as to reduce the existing ability of this dune to resist erosion and protect upland persons and property.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing Petitioners' challenge and issuing the Final Order and Notice to Proceed Withheld dated June 5, 2000. DONE AND ENTERED this 7th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2001. COPIES FURNISHED: David P. Struhs, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Robert R. Bullard, P.E. Qualified Representative Absolute Engineering Group Post Office Box 269 Daytona Beach, Florida 32115 Francine M. Ffolkes Senior Assistant General Counsel Timothy E. Dennis Certified Legal Intern Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact On February 10, 1988 Harry B. Williams made application to the Department of Natural Resources for permission to construct a single-family dwelling with appurtenant structures at 2831 Ponte Verda Boulevard South, South Ponte Verda Beach, Florida. The permit sought was a coastal construction control line permit which would allow construction seaward of that line in the direction of the Atlantic Ocean. A copy of that permit application may be found as Department's Exhibit Number 2. Associated with the permit application was a description of the plans related to the dwelling and other structures. This application was received by the Department February 11, 1988. Following a review of the permit application the Department deemed it complete as of February 22, 1988. A site inspection was made of the property and a report was prepared by an employee with the Department, a Mr. Partel. The report may be found as Department's Exhibit Number 4, which includes photographs of the prospective building site, together with the surrounding property to include dwellings to the north and south of the lot where the Williams home would be built. As commented on by Mr. Partel the applicant had intended at that time to construct a single-family dwelling a maximum of 75 feet seaward of the coastal construction control line. Although this evaluator, Mr. Partel, felt that the applicant had requested the right to construct a dwelling which was in line with existing construction, he felt that it could be moved further landward and that it could be limited in deck size and that a cantilevened form of construction was preferable to the concrete called for in the plans set out in the application information. It was also suggested that the sea oats that were in the way of the construction should be relocated seaward on a dune face slope where a denuded area is found. In this connection, the Department is empowered to make suggestions to the applicant concerning the minimization of the adverse impacts on the beach-dune system. Following the site visit of February 26, 1988 the Department wrote the applicant on March 11, 1988 and indicated concerns about the proximity of the dwelling to the crest of the dune. A copy of this correspondence may be found as Department's Exhibit Number 5. In the correspondence the Department asked the applicant to move the proposed dwelling 10 feet landward and that the 10 foot wide concrete patio, on the seaward side, be modified to a 10 foot wide wooden deck. The letter told the applicant that the approval would be conditioned on the sea oats and other dune grasses that would be disturbed by the proposed structures being replanted seaward of the project in the denuded areas of the dune. The applicant agreed to these changes. The relocation of the structure 10 feet landward took it away from the beach- dune system. The modified site plan that was brought about by the suggested changes is found Department's Exhibit Number 6, a copy of that amended site plan. With the relocation the construction would be 66 feet seaward of the coastal construction control line. An aerial photograph of the site location reference the basic design of the dwelling and the proximity to the relevant or existing coastal construction control line is found as Department's Exhibit Number 3. In responding to the suggestions to the change in location the modified site plan which moved the dwelling 10 feet landward was received by the Department on August 1, 1988. Under this arrangement the applicant had agreed to waive the requirements of Section 120.60, Florida Statutes pertaining to the obligation by the Department to review and decide its action of grant or denial within 90 days of date of receipt of the application. With the changes being made to the location of the proposed dwelling and associated structures and the type of construction materials used in the patio on the seaward side, together with the relocation of the plant life, the impact on the beach-dune system and adjacent property is acceptable. There is no adverse impact on the beach-dune system or on the adjacent properties. The location of the proposed dwelling and its associated structures as it relates to the 30-year erosion projection under the terms of Section 161.053, Florida Statutes, in this instance, shows that the dwelling would be approximately 55 feet landward of the 30-year erosion projection and not at risk. Calculations related to this finding may be found within Department's Exhibit Number 7. The existing coastal construction control line dates from January 28, 1988. Although the original application referred to the previous line of 1978 in describing the site plan and survey, the reason for this was that the site plan and survey were prepared prior to the establishment of the January 28, 1988 line, as allowed. In the course of the hearing appropriate reference was made to the January 28, 1988 line as it relates to the anticipated location of the dwelling and other structures as modified at the instigation of the Department. As contemplated by Section 161.053(5)(f), the Department required the applicant to provide mitigation of the- effects of the construction as a condition to a grant of the permit. Those permit conditions may be found in the Department's Exhibit Number 8, a copy of a proposed final order. Included within those would be the requirements for erection of a temporary construction fence on the site to protect existing native dune vegetation from the impacts of that construction, in addition to the requirement of the dune vegetation relocation. This would involve the irrigation and application of fertilizer to those plants with the expectation that a certain percentage would survive over time as described in this special condition. This project will not pose a hazard to the sea turtle and its hatchlings and habitat for the sea turtles and hatchlings. Ms. Butler, Petitioner in this cause, has a beach home which is north of the Williams property separated by a 10 foot easement between those properties. In mid July, 1988 Ms. Butler offered a written statement in opposition to the placement and size of the proposed dwelling together with other remarks and asked that the Department provide her information and documents pertaining to the application under the authority of Chapter 119, Florida Statutes. On August 10, 1988 the Department dispatched a letter of inquiry to surrounding property owners to include Ms. Butler and solicited remarks concerning the Williams application to be provided on or about August 20, 1988. Ms. Butler had received certain documents from the Department concerning the application sometime in the middle of August 1988. On August 18, 1988 Butler made known her objection to the project on the grounds that the concerns about the 30-year erosion line and the size and placement of the dwelling. On September 2, 1988 the Department informed Ms. Butler of the intent to grant the permit to Mr. Williams. A copy of that correspondence may be found as Petitioner's Exhibit Number 5. This led to a timely request for hearing by Ms. Butler stating her opposition to this project. The request was received in accordance with the Department's advice that the request must be filed by September 26, 1988. Based upon the prehearing conference and the discussion of those issues which would be allowed for consideration as stated in the request for hearing and the statement of particulars that attend the request for hearing, commented on by the hearing officer at the commencement of the final hearing, and found within the transcript and further stated in the issues portion to this Recommended Order, this case has been carried forward. The presentation made by the Petitioner, after the Department and applicant had offered their cases, was through her testimony and that of employees of the Department together with exhibits she offered. The testimony of the Department employees concerned the procedural techniques that the agency pursued in reviewing the application at issue. Ms. Butler described her concern for her property, and the area between her property and the Williams property. This is the 10 foot easement area which is sparsely vegetated and low. As a consequence she was concerned that her property might be destroyed with the advent of the Williams construction. She has no expertise in her own right nor did she present expert opinion from other witnesses which would tend to bear out her concern. She also expressed the concern that the Williams home, in its dimensions, was too large and that it should be relocated an additional 10 feet back from the adjusted placement following the Department's criticism of the original application. In effect, she would have the house placed 20 feet away from the sea as compared to the original site plan submitted with the application on February 10, 1988. Again, there is no competent evidence presented which would support her theory that this further relocation was needed. Her expression of concern for the sea turtles and their hatchlings and habitat was not well founded. Turtles are known to nest on the sandy flat beach area and the construction of the Williams property will not interfere with that area adjacent to the ocean.
Recommendation Based upon a consideration of the facts and the conclusions of law reached, it is RECOMMENDED: That the Department enter a Final Order which grants a coastal construction control line permit to Harry B. Williams, Jr., based upon his modified plan required by the Department and upon the special permit conditions announced in the proposed final order, a copy of which is found as Department's Exhibit Number 8. DONE and ENTERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1989.
The Issue The issues are whether the Department of Environmental Protection's (Department's) proposed agency action to issue a coastal construction control line (CCCL) permit to Respondents, Daniel G. and Doris L. Wentz (Wentzes or applicants), affects the substantial interests of Petitioner, James Hasselback, and if so, whether he timely filed his request for a hearing.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Background This case is the latest chapter in a long-running dispute between adjacent property owners in Gulf County. In 1984, the Cape Haven Townhomes (Cape Haven), consisting of five two-story units on pilings, were constructed at 263 Haven Road on Cape San Blas just west of County Road 30E. Petitioner purchased his unit in 1985 and has owned it continuously since that time. The remaining units were purchased by several other individuals, including Barnett, Hosford, Steve Brady (Brady), and Alison Dohrman, the daughter of Thomas Dohrman (Dohrman). Ownership in the Barnett unit is shared with two other persons, John Beranek (Beranek) and Stephen Hanlon (Hanlon). There are, then, seven individuals having an ownership interest in the five units. Although the complex faced the Gulf of Mexico to the west, another lot, which at one time was approximately 350 feet deep and 65 feet wide, lay between Cape Haven and the Gulf of Mexico. Between 1985 and 1999, the lot lying between the Gulf of Mexico and Cape Haven remained vacant. In December 1999, the Wentzes purchased the lot, which is located at 193 Haven Lane. The lot is divided into Parcels A and B, which appear to be of equal size with both facing the Gulf of Mexico. See Wentz Exhibit 1. It can be inferred that they purchased the lot with the intention of constructing a single-family dwelling on the property. In February 2000, the Wentzes filed an application with the Department for a CCCL permit authorizing the construction of a home on Parcel B. On July 9, 2002, the Department issued proposed agency action approving the application and issuing Permit No. GU-305. A petition was filed by Barnett and Hanlon challenging this action, the matter was referred to DOAH and assigned Case No. 02-3252, an evidentiary hearing was conducted, and a Final Order was entered denying the application. Barnett, et al. v. Wentz, et al., DOAH Case No. 02-3252, 2003 Fla. ENV LEXIS 232 (DOAH June 5, 2003), adopted, 2003 Fla. ENV LEXIS 231 (DEP Aug. 4, 2003). In that proceeding, Barnett and Hanlon were represented by the law firm then known as Oertel, Hoffman, Fernandez & Cole, P.A., now known as Oertel, Fernandez, Cole & Bryant, P.A. (the law firm). In September 2000, the Wentzes also filed an application for a field permit to enhance the dune system on their property. After the Department proposed to grant Field Permit 014292 authorizing the dune enhancement project, a petition challenging that action was filed by the law firm on behalf of Barnett, Dohrman, Hosford, Brady, Hanlon, Beranek, and Hasselback. The matter was referred to DOAH and was assigned Case No. 00-4460. Before a final hearing was conducted, however, Petitioners filed a notice of voluntary dismissal. In 2004, the Wentzes filed another application with the Department for a CCCL permit, this time on Parcel A. On September 8, 2004, the Department issued its notice of intent to issue Permit GU-409. Notice of this action was not published. Therefore, actual or constructive notice was required in order to afford third parties, including Mr. Hasselback, a point of entry. See Fla. Admin. Code R. 62-110.106(2)(receipt of notice means "either receipt of written notice or publication of the notice in a newspaper of general circulation in the county . . . in which the activity is to take place"). Besides the law firm, Barnett, Dohrman, and several others not relevant here received personal written notice of the Department's action. Thereafter, acting pro se Barnett timely requested at least six extensions of time to file a petition challenging the proposed agency action. The last extension lapsed on February 14, 2006, and neither Barnett nor any other Cape Haven owner requested a hearing by that date. In August 2005, the Wentzes filed an inverse condemnation suit against the Department. See Wentz v. State, Department of Environmental Protection, Case No. 05-270CA (14th Cir., Gulf Co. Fla.). On April 10, 2006, the Department issued a Final Order stating that it intended to revoke Permit GU-409 on the grounds the property was not platted prior to October 1, 1985, and shoreline changes had occurred after the proposed agency action had been issued. See DOAH Case No. 06-2381. Presumably, the latter reason was based on severe erosion of the shoreline due to several storms or hurricanes that struck the Florida Panhandle. According to testimony at hearing, due to erosion caused by storm events, the lot has receded from its original 350 feet in depth to around 175 feet at the present time. (In Case No. 02-2352, the administrative law judge noted that between 1993 and October 2002, around 47 percent of the property's total depth, or 170 feet, had eroded. Barnett at *11.) This in turn requires that any structure built on the Wentzes' lot be much closer to Petitioner's unit. One witness estimated that the Wentzes' septic tank, drain fields, and driveway would be no more than 30 feet from the front of the complex, while the pilings supporting the structure would be no more than 40 feet from the complex. The Wentzes challenged the proposed revocation of Permit GU-409 and simultaneously filed a rule challenge. See DOAH Case No. 06-2309RX. In August 2007, the Wentzes and Department reached a global settlement on all pending matters, and in return for the Wentzes' dismissing all pending court and administrative actions and executing a conservation easement in favor of the State as to one of the two parcels, the Department agreed to issue a Notice to Proceed (NTP) with the construction on Parcel A and to extend the expiration date on Permit GU-409 from September 8, 2007, to May 8, 2010. Except for the extension of the expiration date, no other changes to Permit GU- 409 were made. An extension was necessary because the permit would otherwise expire within a month, and no activity on the property had occurred due to Barnett's six requests for extension of time to file a petition and the passage of time required to resolve the revocation case and reach a global settlement. After the NTP was issued, concrete pilings were placed on the site and still remain as of this date. According to recent photographs, no other construction has occurred pending the outcome of this case. See Petitioner's Exhibit 4. In response to the Department's action, on October 10, 2007, the law firm filed a Petition on behalf of Barnett and Hosford in which they claimed that they first learned of the Department's latest action by reading a real estate listing in early October 2007, which advertised the Wentzes' property for sale, including a three-bedroom, three-bath home then under construction. On October 19, 2007, the Wentzes filed with the Department a Motion to Dismiss the request for a hearing as being untimely. Barnett and Hosford were later dismissed from the case on the grounds a new point of entry was not required by the latest Department action, and they had waived their right to contest the issuance of Permit GU-409 by (a) Hosford's failing to timely file a petition after notice of the agency action was issued on September 8, 2004, and (b) Barnett's failing to file a petition after the last extension of time to do so expired in February 2006. See Order Granting Motion to Dismiss, Jan. 25, 2008. On or about October 23, 2007, or just after the Motion to Dismiss had been filed by the Wentzes, Petitioner was contacted first by Hosford and then Barnett, who asked that he participate in the case to challenge Permit GU-409 since they believed that "apparently . . . [he was] not noticed by DEP on GU-409", and Petitioner was "the key for all of us maintaining our rights." See Wentz Exhibit 23. Petitioner agreed to file a petition since he thought it was in the best interests of all of the unit owners and did so within a matter of "two or three days." The Petition was prepared by the law firm and was filed with the Department on October 26, 2007. Substantial Interests At hearing, and in pre-hearing discovery, Petitioner testified that his substantial interests would be affected by the proposed agency action in three ways: (a) it would adversely affect his view of the Gulf of Mexico; (b) it would negatively impact the value of his townhome; and (c) he feared that wind or waterborne missiles from the structure during a storm event would cause damage to his townhome, which lies directly behind and to the east of the proposed construction site. See Fla. Admin. Code R. 62B-33.005(4)(f)(an applicant must show that "[t]he construction will minimize the potential for wind and waterborne missiles during a storm").1 The latter concern is the subject of the Wentzes' Motion in Limine briefly discussed in the Background portion of this Recommended Order. In addition to his testimony, on page 2 of the parties' Stipulation, Petitioner identifies the following concerns with the proposed agency action: The project does not satisfy the requirements or purpose of the statutes and rules limiting coastal construction; will diminish his observation and enjoyment of flora and fauna including sea turtles; will damage his property[;] and will have a significant adverse impact to marine turtles and the coastal system. Finally, in paragraph 21 of the Petition, the following allegation is made regarding the substantial interests of Petitioner: Should the permit be permitted, the Petitioner will no longer be able to enjoy the flora and fauna of Cape San Blas, the proposed project will jeopardize the Petitioner's continued enjoyment of his property at this location as described above, and the Petitioner's rights will be swept aside. The Wentzes argue that in demonstrating how his substantial interests are affected, Petitioner is limited to the reasons he gave during his testimony, both before and during the final hearing, irrespective of any other issues identified in his Petition or the parties' Stipulation. On the other hand, through counsel, Petitioner argues that he is a lay person, he cannot be expected to give opinion testimony in support of technical allegations in the pleadings and Stipulation, and that expert testimony may be used to establish how his substantial interests may be affected. A common thread in the testimony of Mr. Hasselback and the Stipulation is a concern that the proposed activity "will damage his property." See Stip., p. 2. Therefore, assuming arguendo that the Wentzes' argument regarding the standing issues that may be raised is correct, Petitioner is still entitled to offer proof that his property may be damaged by the proposed activity. As to the other two concerns stated in Petitioner's testimony, neither loss of view nor loss of economic value is a relevant consideration. See, e.g., Schoonover Children's Trust v. Village at Blue Mountain Beach, LLC, et al., Case No. 01- 0765, Recommended Order of Dismissal, April 20, 2001 (dismissing challenge to CCCL permit based upon allegations of loss of view and economic injury because "neither . . . is a protected interest in a proceeding under Section 161.053, Florida Statutes"). See also Young, et al. v. Department of Environmental Protection, et al., Case No. 04-3426, 2005 Fla. ENV LEXIS 155 at *30 (DOAH Aug. 15, 2005), adopted, 2005 Fla. ENV LEXIS 154 (DEP Sept. 26, 2005). Therefore, only the contention that the issuance of a permit may cause wind or waterborne missiles to strike or cause damage to his property need be decided to resolve the standing issue. Rule 62B-33.005(4)(f) requires that an applicant for a CCCL permit demonstrate that "[t]he construction will minimize the potential for wind and waterborne missiles during a storm." Mr. Hasselback is concerned that if a dwelling is constructed in front of his unit as proposed and no more than 40 feet away, during a severe storm event parts of that structure may be carried by wind or water into his unit. Although any dwelling constructed on the coastline must be designed to withstand the impact of a 100-year storm, a coastal engineer established that even if the home is built to those standards, "substantial structural elements" (such as sections of roofing material, siding, stairways, and the like) may still be carried by water, or blown by the wind, into Cape Haven, which lies directly behind, and less than 40 feet from, the proposed structure. The expert also pointed out that both the Department and Federal Emergency Management Agency require that all frangible structural components (those that tend to break up into fragments) below the first living floor remain unattached to the home. In this respect, the evidence supports a finding that Mr. Hasselback could reasonably expect to be adversely impacted in this manner should a permit be approved.2 Petitioner's expert also established that the existence of the pilings on the Wentz structure could accelerate beach erosion and cause damage to the beach dune system on Petitioner's property. Because of the extremely high rate of erosion on Cape San Blas, he opined that such impact could occur soon after the Wentz structure was completed. In this additional respect, Petitioner's substantial interests could reasonably be expected to be affected by the issuance of a permit. Was the Petition Timely Filed? Mr. Hasselback is the Mary Ball Washington Eminent Scholar in the College of Business, University of West Florida, in Pensacola, but maintains a residence in Tallahassee. As such, he must commute between the two cities each week during the academic year. He also travels much of the other time. Because of his schedule, he stated that he visits his unit only "an average of once a year." The record shows that he occasionally communicates by email or telephone with other unit owners, particularly Barnett, who is considered the "leader" of the unit owners in opposing any development on the Wentz property. It is fair to infer that since the property was purchased by the Wentzes in late 1999, most, if not all, of the information derived by Petitioner (and other unit owners) about the Wentz property, including any proposed activities they have undertaken, has come from Barnett, rather than other sources. Throughout this case, Mr. Hasselback has consistently maintained that he was unaware that the Department proposed to issue Permit GU-409 until he spoke by telephone with Barnett and Hosford in late October 2007 after the Wentzes had filed a Motion to Dismiss the Barnett/Hosford Petition. After the Department denied the application for Permit GU-305 in August 2003, he says he assumed that the issue was closed and that no further development would occur on the Wentzes' property. There is no direct evidence to dispute these assertions. Notwithstanding Mr. Hasselback's testimony, the Wentzes and Department contend that the law firm has represented the unit owners as a group since 2000, when the first two applications were filed, and that this relationship was still in effect in September 2004 when the law firm received notice of the Department's proposed agency action regarding Permit GU-409. They go on to contend that an agency relationship between the unit owners and the law firm existed, that it is presumed to continue in the absence of anything to show its revocation or termination, that the law firm's receipt of separate written notice concerning Permit GU-409 constituted constructive notice on Petitioner, and a petition should have been filed within 21 days after receipt of notice. Conversely, Petitioner contends that the attorney-client relationship between him and the law firm ended when the litigation in Case No. 02-2352 was concluded in August 2003, that the law firm did not represent him in September 2004, and that any notice to the law firm regarding the issuance of Permit GU-409 cannot be imputed to him. For the following reasons, on two different bases, including one not addressed by the parties, it is found that Petitioner received constructive notice of the proposed issuance of Permit GU-409 on or about September 15, 2004. To resolve the contentions of the parties, a factual review of the relationship between the law firm and Cape Haven owners is necessary. As discussed in greater detail below, this task is a difficult one because of the large number of unit owners (seven), some of whom participated as parties in one case, but not the others, and who are referred to by the law firm in correspondence or other papers generically as "a group of property owners, "adjacent property owners," or "other Cape Haven Townhome owners," and in other papers by their specific names. Although the law firm normally required that its clients execute a letter of engagement before agreeing to represent them, this policy was not strictly followed, and some unit owners who had not signed a letter of engagement were named as parties in a Wentz proceeding, while others who had signed a letter were not. Finally, the record supports a finding that throughout the nine-year controversy between the parties, Barnett has been the individual who acted as liason between the other unit owners and the law firm. After the Wentzes filed their application for a CCCL permit in February 2000, on August 4, 2000, Mr. Hasselback and three other unit owners, Dohrman, Barnett, and Hosford, each signed a letter of engagement with the law firm, also known as a New Matter Report (Report), authorizing the firm to represent them in the Wentz matter. See Wentz Exhibit 13. Petitioner says he "most likely" learned about the proposed issuance of Permit GU-305 through Barnett, who urged all of the unit owners "to come together" in opposing the permit. Petitioner agrees that all of the unit owners acted as a group "to fight the field permit and the GU-305." Even though Hasselback, Dohrman, and Hosford each signed a Report, the Reports identified only Barnett, Hanlon, and Beranek, who share ownership in unit 5, as the clients in the matter; Barnett was listed as the contact person. However, there is no evidence that Hanlon and Beranek ever signed a Report. Presumably, as co-owners with Barnett of unit 5, they had informally agreed with Barnett to be named as clients and to reimburse him for their pro rata share of the costs. The subject of the Reports was the "potential challenge of coastal control permit" and contained no information as to when the firm's services would cease. On September 25, 2000, the Department proposed to issue a field permit to the Wentzes for dune enhancement. See Case No. 00-4460. On October 11, 2000, the law firm filed a petition challenging the issuance of that permit. The petition was filed on behalf of all seven unit owners, even though three had never signed a Report. Although he probably discussed the substance of the petition before it was filed, Mr. Hasselback admits that he did not know the difference between a field permit and a CCCL permit and said he signed his Report so that the law firm could take "action against [the Wentzes] being able to build on [their] property." On October 20, 2000, the law firm also sent a letter to Department counsel requesting Department counsel to remind the Wentzes that a petition had been filed on behalf of its clients, that Permit 014292 was only proposed action, and that the Wentzes should not proceed with any work on the site. See Wentz Exhibit 3. The letter reflects that all of the Cape Haven owners, including Petitioner, were copied with that correspondence. The law firm's representation of the unit owners as a group at that time was confirmed by a letter sent to the Department on October 1, 2001, stating that the firm represented all of the Cape Haven owners, including Barnett, Dohrman, both Hosford and his wife, Brady, Hanlon, Beranek, and Petitioner, in their challenge to the Permit GU-305 application. It also requested notice of any decisions regarding the permit and a point of entry. See Wentz Exhibit 17. A copy of the letter was sent to all unit owners, including Petitioner. When the Department issued its formal proposed agency action regarding Permit GU-305 on July 9, 2002, it sent separate written notice to a member of the law firm on the same date. See Wentz Composite Exhibit 8. A petition was then timely filed by the law firm challenging that action. Notwithstanding the firm's letter of October 1, 2001, which indicated that all of the unit owners were opposing the issuance of a CCCL permit, only Barnett and Hanlon (who had not signed a Report) were identified as petitioners in the GU-305 case. Petitioner acknowledged, however, that he and the owners of three other units, but not Brady, agreed to share in the expenses of that case even though they were not named as parties. In all, he paid more than $35,000.00 in legal fees.3 (Brady, who owns unit 3, did not sign a Report, and according to Petitioner, he would not agree to share legal expenses in opposing the Wentzes' applications; even so, his name was on the petition filed in Case No. 00-4460.) Before Case No. 02-3252 was concluded, by letter dated January 15, 2003, the law firm, through a former member, Patricia A. Renovitch, Esquire, made the following request to Michael W. Sole, then Bureau Chief of the Department's Bureau of Beaches and Wetland Resources: Please consider this a request on behalf of adjacent property owners for notices about points of entry prior to the issuance of any permits to, and notices of any applications filed by, Doris and/or Daniel Wentz regarding the coastal lots they own on Cape San Blas that are described in File Numbers GU-375 and GU-305 (DOAH Case No. 02-3252 and OGC Case No. 02-1127). This would include notices of any applications for coastal construction control line permits or "dune enhancement" permits for these lots. (Emphasis added) In this instance, the law firm identified the unit owners as "adjacent property owners" without any further specificity. It can be inferred, however, that the law firm was still representing the entire group. At hearing, Petitioner acknowledged that because Case No. 02-3252 was not yet concluded, the law firm was still representing him when the letter was sent. He also agreed that the letter authorized the law firm to receive notices of "any applications" on behalf of him and the other unit owners the Wentzes might file in the future. Petitioner says his relationship with the law firm ended on August 4, 2003, when the Department issued a Final Order denying the application for Permit GU-305. He acknowledges that he never notified the Department or the law firm that the relationship ended on that day, and he did not instruct the law firm to revoke his prior authorization to receive notices of "any applications" that might be filed by the Wentzes in the future. Lacking any contrary information, the law firm did not advise the Department that it no longer was his agent for purposes of receiving notices. In response to Ms. Renovitch's letter sent to the Department in January 2003, on June 4, 2004, the Department sent a letter to the law firm (and Barnett individually) advising that the Wentzes had just filed another application for a CCCL permit, that it was being assigned File Number GU-409, and that any comments should be filed within ten days. See Department Exhibit 4o. In response to the Department's letter, on June 15, 2004, Ms. Renovitch filed a letter with the Department indicating in part as follows: Please consider the following comments made in behalf of our clients, Richard Barnett and other Cape Haven townhome owners of adjacent and/or upland property to the property described in the above styled application. (Emphasis added) The letter went on to state that "Mr. Barnett and other similarly-situated upland/adjacent property owners of Cape Haven townhomes submit their carefully considered objections to the issuance . . . of GU-409." See Department Exhibit 4o. Based on this correspondence, it can be inferred that in June 2004, at least for purposes of receiving "notices of any applications" filed by the Wentzes and submitting comments on behalf of the unit owners, an apparent principal-agent relationship still existed between the "other Cape Haven townhome owners" and the law firm, and that Petitioner was one of the unit owners being represented for those purposes. A copy of the letter was provided to Barnett, who presumably approved its content. On September 13, 2004, or five days after the Department issued its proposed agency action to issue Permit GU- 409, the Department sent separate written notice of this action to the law firm, Dohrman, Barnett, Erik J. Olsen (Olsen), a coastal engineer in Jacksonville, Florida, who testified as a consultant for Petitioner in this case, and several other individuals not relevant here. See Wentz Composite Exhibit 8. The notice was received by Barnett on September 15, 2004, and presumably by the law firm on or about the same date. See Department Exhibit 4n. (Besides the law firm, Barnett, Dohrman, and Olsen were also given separate written notice since they had each filed additional written objections in response to the Department's letter of June 4, 2004.) Although Barnett promptly contacted the law firm after receiving the notice to discuss the case, there is no evidence that the law firm contacted or spoke with any of the other unit owners regarding the proposed agency action. More likely than not, this was because it assumed that, based on the prior conduct of the parties, Barnett was the leader or "contact" person for the group and would convey any pertinent information to the other unit owners. While the law firm had not yet agreed to represent any of the unit owners on the merits of the GU-409 case since new Reports had not yet been sent out, see Finding 32, infra, the law firm was still Petitioner's agent for purposes of receiving notice of "any applications," and its receipt of the Department's notice on or about September 15, 2004, constituted constructive notice on Petitioner. On September 27, 2004, Ms. Renovitch emailed Kenneth Oertel, Esquire, the senior partner in the law firm, regarding the proposed agency action to issue Permit GU-409 and advised him as follows: Rick [Barnett] called a couple of times last week about the GU-409 case. He and John Beranek are in charge of overseeing the case (assuming we take it). They have approved the content of the Petition (per the memo I sent early last week.) I spoke to Rick Barnett several times about the balance (approx. $10K) on the bill in GU-305 (first Wentz CCCL permit). He said it's owed by Tom Dohrman and he will try to get a letter confirming when and how Tom will pay the balance. In the new case, the clients would be Rick, John Beranek, Jim Hasselback, Laurie Hosford, and Tom Dohrman. They will be paying equal shares. We have the NMRs [New Matter Reports] ready to send out, but have not sent them due to the unpaid balance in the first case. Rick wants to meet with DEP counsel Mark Miller and Tony McNeal about the GU-409 case this week . . . . Tony is very busy with hurricane impact emergencies . . . [and] Mark suggested Rick file a request for an extension to file the Petition. (Emphasis added) See Wentz Exhibit 9. Mr. Hasselback is not listed as a recipient of the email and he never spoke with Barnett or Ms. Renovitch about the case. He attributes the mentioning of his name in the email and being named as a party in the proposed petition to an assumption on the part of Barnett that "we may still have a group." However, given the prior conduct of the parties, it is reasonable to infer at a minimum that Barnett had Petitioner's implied authority to instruct the law firm to include his name on the proposed petition and to represent that Petitioner would share in the costs of the action. In response to that email, Mr. Oertel replied by email the same date that "we can't take a case where the client already owes us a substantial sum and has a hard time paying it. It will mean at best we will get paid only 80% of our bill." Id. At the suggestion of Mark Miller (Department counsel), Barnett requested that the Department grant him an extension of time to file a petition in order not to waive the 21-day filing requirement, which expired on October 6, 2004. The first request for an extension of time was filed on September 27, 2004, and stated in part that "I request a two week extension to October 20, 2004, for the homeowners of Cape Haven to consider all issues that could be raised in filing a potential challenge to this permit." (Emphasis added) See Department Exhibit 4n. The "homeowners" are not otherwise identified, although it is fair to infer that they were the five unit owners identified in the proposed petition whose content was approved by Barnett and Beranek. According to Ms. Renovitch's email of September 27, 2004, by requesting an extension of time, this would also "give [Barnett] more time to try to get Tom Dohrman to set up a payment plan." The last request for an extension of time was filed on November 14, 2005, and expired on February 14, 2006. Barnett says that he "lost track of the time and didn't submit [a seventh request] in time, but [he] clearly intended to submit [one]". The end result was that the law firm did not accept the case in September 2004, no petition was filed, and a new Report was not executed by any unit owner. After reading an advertisement regarding the potential sale of the Wentz property in October 2007, Barnett and Hosford engaged the services of the law firm to file a petition challenging the action taken by the Department in August 2007. There is no evidence that they signed a new Report authorizing the law firm to represent them. As noted above, their petition was later dismissed as being untimely. The law firm then filed a petition on behalf of Petitioner, who agrees that it was filed "to maintain the rights" of the group. However, he has not signed a new Report for this case, he has not been billed for any legal fees, he believes that Barnett is paying "some of the cost," but he expects he will probably end up paying a part of the legal fees incurred in this action. Based upon the facts of this case, and the conduct of the parties, the record also supports a finding that a principal-agent relationship existed between Petitioner and Barnett. As noted above, Barnett has always been the leader of the group of unit owners in opposing any development on the Wentz property. He communicated in writing and by telephone with Department personnel on numerous occasions over the years regarding the status of the activities on the property and periodically relayed this information to other unit owners by telephone or emails. Even though the law firm was given notice on behalf of the unit owners, Barnett also requested separate written notice from the Department for any applications filed after the GU-305 case, including the GU-409 permit. Barnett was initially identified by the law firm as the contact person for the group and has regularly met or communicated with the law firm regarding the various permits being challenged. It is fair to infer that the law firm assumed that Barnett had the authority to act on behalf of the other unit owners in coordinating their opposition to any permit challenges. This is evidenced by one of its emails indicating that Barnett was "in charge of overseeing the [GU-409] case" and that he approved the content of the proposed petition in which Mr. Hasselback was named as one of the parties. Although no longer a party in this case, he continues to discuss strategy of the case with counsel and other unit owners, including Petitioner. Finally, since the inception of these disputes, the record supports a finding that the law firm has invoiced Barnett for its legal fees, and Barnett then seeks reimbursement from the other owners, including Petitioner. Therefore, it is reasonable to infer from the evidence that because of his work schedule and travel, and infrequent visits to his townhome, since 2000 Petitioner has, at a minimum, impliedly authorized Barnett to serve as his agent to advise him about any activities by the Wentzes that might potentially impact the value of his townhome. The fact that Barnett did not always timely convey the information, as was the case here, does not negate this relationship. Because notice was received by Petitioner's agent on September 15, 2004, the time for filing a challenge to the issuance of Permit GU-409 expired 21 days after receipt of that written notice, or on October 6, 2004. Assuming that Mr. Hasselback was one of the "homeowners of Cape Haven" referred to in Barnett's first request for an extension of time to file a petition on September 27, 2004, and the subsequent five requests, the time for filing a petition expired no later than February 14, 2006.
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 dismissing, with prejudice, the Petition of James Hasselback as being untimely. DONE AND ENTERED this 28th day of January, 2010, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2010.
The Issue The issue is whether Petitioner's after-the-fact modification application for construction activities seaward of the coastal construction control line in New Smyrna Beach, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In 1984, Petitioner, Thomas R. Sweeney, purchased a home at 5917 South Atlantic Drive, New Smyrna Beach, Florida. At that time, the home was approximately 3,000 square feet in size. The home sits seaward of the coastal construction control line (CCCL) and thus any construction activities on the premises require the issuance of a CCCL permit from Respondent, Department of Environmental Protection (DEP). In 1987, Petitioner constructed a first floor porch, second story addition, and wooden deck at the site without first applying for and obtaining a CCCL permit from the Department of Natural Resources, which was subsequently merged with DEP. After the construction was completed, Petitioner submitted an after-the-fact application for a CCCL permit for those structures. Before being issued Permit Number VO-423, Petitioner was required to pay an administrative fine. Among other things, Permit VO-423 approved an already constructed wooden deck on the eastern side of the home which approximated 840 square feet in size. Petitioner was also given approval for a wooden walkway with stairs that provided access to the beach. On June 1, 1995, Petitioner filed a second CCCL application with DEP to add a 20-foot first and second story addition with a deck to the south side of the home. After reviewing the application, on November 9, 1995, DEP issued CCCL Permit Number VO-627 authorizing the scope of work identified in the permit application documents. Notwithstanding the limited amount of work authorized by the permit, Petitioner constructed a third story addition to his home. He also removed the original wooden deck on the eastern side of the home, and he constructed spread footers and a foundation on top of the rock revetment for a new and much larger deck. The new deck is approximately 2,100 square feet, or more than 1,200 square feet larger than the original permitted deck. In its present state, the home is approximately 5,600 square feet, and the existing eastern deck is larger than any permitted deck on any other single-family home in Volusia County. On September 9, 1996, DEP discovered the third story addition and the much larger wooden deck with appurtenant structures. Presumedly at the behest of DEP, on November 22, 1996, Petitioner submitted an application for an after-the-fact modification of CCCL Permit Number VO-627 to authorize the previously completed, unauthorized work. On April 23, 1997, DEP issued CCCL Permit Number VO-627 After-the-Fact. The permit approved the third-story addition to the home together with a 10-foot wide wooden deck on the seaward side of the entire third story and a 12-foot wide wooden deck on the landward side of the third story. DEP denied, however, authorization for Petitioner's new wooden deck on the first floor with a tiki hut and sundeck on the ground those structures violated Rule 62B-33.005(4)(e), Florida Administrative Code. That rule requires that any new construction seaward of the CCCL "minimize the potential for wind and waterborne missiles during a storm." The issuance of the proposed agency action prompted Petitioner to initiate this proceeding. On November 3, 1997, DEP entered a Final Order directing Petitioner to pay a fine because he illegally constructed structures seaward of the CCCL. The order was never appealed, and thus the time to challenge the order has elapsed. As of the date of hearing, Petitioner had not paid the fine, and a statutory lien has been placed on the property. The Storm Surge Elevation at this site for a 100-year storm event is 10.7 feet N.G.V.D. The Breaking Wave Crest- Elevation for a 100-year storm event at this site is 14.9 feet N.G.V.D. Part of the new eastern deck is located below an elevation of 14.9 feet N.G.V.D. The builder who constructed the additions, Edward Robinson, characterized them as "above average to superior" in quality. To minimize the possibility of the deck washing away during a storm event, he used the "best" nails, bolts, and concrete available. In addition, the new decking was rested upon concrete footers for support. The footers, however, are on top of a rock revetment, and Robinson conceded that such footers are not as stable as a pile foundation. Petitioner used coquina rock (with a low unit weight) for his revetment. It was established that the rocks on which the footers rest are not permanent, and they can shift during a large storm event. In fact, shifting can occur even during a ten-year storm, and there will be a total failure of the revetment during a thirty-year storm event. Once the stones move, an erosion process begins, and the deck will fail. The accompanying high winds will then lift the wooden debris in an airborne fashion. Depending on the strength of the storm, the airborne debris will be a threat not only to Petitioner, but also to his neighbors. Therefore, it is found that the existing construction for the eastern deck does not minimize the potential for wind and waterborne missiles during a storm, and it thus violates Rule 62B-33.005(4)(e), Florida Administrative Code, as alleged in the proposed agency action denying in part the permit.
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 denying Petitioner's application for an after-the-fact amended CCCL permit to construct an expanded eastern deck with a tiki hut and sun deck on his property at 5917 South Atlantic Avenue, New Smyrna Beach, Florida, and approving the application for the structures previously authorized by the Department in its Final Order issued on April 24, 1997. DONE AND ENTERED this 11th day of May, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1998. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Thomas H. Dale, Esquire Post Office Box 14 Orlando, Florida 32802 Thomas I. Mayton, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.
