Findings Of Fact DNR is called upon to make a decision concerning the possible issuance of CCCL permits in coastal areas described in Section 161.053, Florida Statutes. The applicant Wiggins has sought such a permit. This application is opposed by Petitioners. Mary Evelyn Wood owns property at 267 South Fletcher Avenue, Fernandina Beach, Nassau County, Florida, which is about a five minute walk from the subject property, according to Ms. Wood. The Wiggins property is at 664 South Fletcher Avenue in the same town and county. The Douglas property is at 649 South Fletcher Avenue. It is located adjacent to the Wiggins property across Fletcher Avenue on the west side and one lot north. The Crim property is at 663 South Fletcher Avenue, directly across that road west of the Wiggins property. The Douglas and Crim properties are also in Fernandina Beach, Nassau County, Florida. Petitioners have expressed their opposition to the grant of a CCCL permit based upon the belief that with construction at the Wiggins property the dune system which fronts the Wiggins property will be adversely impacted and place Petitioners' properties at risk. In this connection Petitioners are concerned about shoreline erosion and flooding of upland properties to include their own. Their attitude is prompted by the history of problems of erosion of the beach in the immediate vicinity where Wiggins and Petitioners have their property, especially related to weather events and maintenance dredging in the St. Mary's River Inlet to facilitate activities at Kings Bay Naval Base. Attempts have been made to mitigate the efforts of that dredging. Petitioners are further disturbed by problems which they have seen with beach front homes referred to as the Caples and Manley properties. The circumstances in those latter two properties are described in greater detail subsequently. Finally, Petitioners are concerned about the cumulative impact associated with the Wiggins project and similar projects which may be forthcoming along the beach front in that vicinity. On March 30, 1989, DNR received an application from Wiggins for a CCCL permit to construct a residential dwelling seaward of the Nassau County Coastal Construction Control Line. DNR determined that Wiggins' original application was incomplete and requested further information from Wiggins by letter dated May 1, 1989. Wiggins submitted all necessary supplementary documents. DNR issued a notice of completeness dated July 10, 1989, notifying Wiggins that this original application had been determined complete as of June 30, 1989. After determining that Wiggins' original application was complete, DNR engineer Robert M. Brantley, Jr. reviewed the application to analyze it for compliance with statutory and rule requirements. In connection with this review, Brantley prepared a memorandum to his supervisor regarding his recommendation for DNR action on the original application. Out of concern that the project proposed by the original application would not minimize adverse impacts on the beach and dune system after the site, Brantley recommended that the structure be moved twenty feet landward, thus requiring a local zoning variance from City of Fernandina Beach right-of-way requirements. On September 21, 1989, DNR issued a final order, "permit NA-148" granting Wiggins' original application as modified pursuant to Brantley's recommendation to require siting of the dwelling structure twenty feet landward. This constituted proposed agency action on the permit request. Petitioners were determined to have failed to allege injury to their substantial interests sufficient to grant them standing to challenge proposed permit NA-148, and their petition was dismissed. Wiggins was denied the local zoning variance from the twenty foot right-of-way setback contemplated by proposed permit NA-148. Petitioners appeared at the variance hearing and opposed the variance. After denial of the zoning variance required by proposed permit NA- 148, Wiggins contacted Brantley to ask for "reconsideration" of permit NA-148. Wiggins' request was treated by DNR as an application for modification of proposed permit NA-148. After review the application as modified was determined to be complete and a letter to that effect was issued by DNR on May 10, 1990. The modified application sited the dwelling in the same location as the original application, but with several improvements to satisfy DNR. This application as modified deleted the condition of proposed permit NA-148 allowing any excavation, as clarified at hearing; deleted the condition of proposed permit NA-148 allowing understructure parking (including the deletion of a condition allowing a concrete slab or impermeable surface), and committed the permittee to maintain the frontal dune and encumber the lot with a covenant requiring the present and future owners of the project site to maintain the dune integrity. Additionally, the seaward deck of the project structure was reduced from eight feet to six feet and the direction of stairs on the exterior of the structure was adjusted. On June 11, 1990, DNR issued a final order "Permit NA-148 M1" with the aforementioned changes incorporated. This constituted proposed agency action about which the dispute has been joined. The project site, described as lot 5, block 8, Ocean City subdivision, Fernandina Beach, Nassau County, Florida (WE 1, 3) is an oceanfront lot crossed by a well vegetated, single ridge frontal dune. The crest of the dune is located approximately 127 feet seaward of the Nassau County CCCL. It is approximately three to four feet above the existing grade with an elevation of 14 feet NGVD. The project site is located on the northern one-third of Amelia Island. As alluded to before, the northern one-third of Amelia Island has experienced erosion since the turn of the century when the St. Marys River entrance channel was stabilized by jetties. Such erosion continues and will continue as long as the St. Marys River channel jetties interrupt the natural southern transport of sand and routine maintenance dredging is conducted. Over the last twenty years, in acknowledgment of the erosion resulting from the increased frequency of maintenance dredging of the St. Marys River navigational channel, the project site has benefited from federally-funded beach renourishment projects which have deposited beach-quality spoil on two or three occasions. Material from the most recent renourishment project is still in the area of the project site. A granite revetment was built along the shoreline on the property following the destruction brought by Hurricane Dora in 1964. Further improvements to the revetment were made in the mid-1970s. The revetment protects the uplands and has acted like a sand fence to catch sand on its landward side and promote the buildup of the dune on that side. Since at least 1979, the dune ridge which parallels the property frontage has built up behind the rock revetment line. Currently, the revetment is covered by sand. The revetment would stabilize the shoreline in the event of major shore erosion. Deposition and accumulation of beach material on the seaward side of the revetment has occurred on this site as well, due to the renourishment project. Such accumulation improves the protection of the revetment system in that the accumulated sand acts as a sacrificial buffer to erosion. If that buffer is removed, the revetment then offers its protection against erosion. The revetment is located in approximately the same position as an established erosion control line. An established line of construction, including projects permitted by DNR has occurred landward of the erosion control line. As proposed, permit NA-148 M1 would site the project dwelling structure landward of the erosion control line and the permitted line of construction. The single ridge dune on the project site provides protection for upland property from flooding attributable to wave runup during astronomical high tides and storms called northeasters. The next structure north of the project site is a single family dwelling located 210 feet from the project and constructed pursuant to CCCL permit number NA-32. This is the Caples house. The next structure south of the project site is a single family dwelling located 300 feet from the project site and constructed pursuant to CCCL permit number NA-28, the Manley house. No dune crest or ridge or significant topographic feature exists under either the Caples house or the Manley house. The sand forming such crest, ridge, or feature has been removed. The seaward pilings of the Caples and Manley houses had been placed in the frontal dune. Erosion in the vicinity of the Caples and Manley houses has affected adjacent properties. Two lots north of the Caples house, no topographic feature or dune crest exists due to the presence of a parking lot servicing a private business. Approximately one lot south of the project site, midway between the project site and the Manley house, no topographic feature or dune crest exists due to the presence of a street end or public parking area. The northern part of Amelia Island is subject to occasional flooding due to the previously described astronomical high tides or northeasters. The properties owned by Petitioners Crim and Douglas have been subjected to upland flooding by ocean water which probably entered through lower elevations including through the dune breach created by the parking lot north of the Caples house, through the dune breach at the street end of parking area between the project site and the Manley house, or thorough the dune breach beneath the Caples house. Such flooding may occur with every northeaster. The Caples house and the Manley house were permitted by DNR prior to legislative authorization for the requirement of restrictive covenants in connection with CCCL permitting. The permits for the Caples and Manley houses contained no provision requiring the owner of such properties to maintain the dune on those sites. As each of the Respondents' experts testified at hearing, construction pursuant to proposed permit NA-148 M1 will not make Petitioners' property more susceptible to flooding, tidal flow and windstorm damage, because the project site will be encumbered with a covenant requiring the property owner to maintain the elevation and contours of the frontal dune. The Petitioners proffered no expert testimony on this issue to the contrary. Respondents' experts opinions are accepted. The imposition on an oceanfront parcel of a covenant which requires that dune contours be maintained, such as the one required by Condition 11 of proposed permit NA-148 M1, provides owners of property upland of such parcel with a greater level of protection than they have presently in the absence of any covenant or requirement placing such an obligation upon the owner of the project site. The seaward tow of the dune on the project site is approximately 145 feet seaward of the control line. The beach in this area is located between the seaward toe of the dune and the mean high water line. Such area is sometimes referred to as the public right-of-way on the beach. As each of the Respondents' experts testified at hearing, and as accepted, the proposed structure does not extend beyond the seaward toe of the dune and thus does not infringe on the area between the seaward toe of the dune and the mean high water line. The Petitioners proffered no expert testimony on this issue to the contrary. The impacts on a beach and dune system associated with a dwelling structure may occur from four types of events: construction, windblown sand and recharge, localized erosion from a high frequency storm event, and erosion in a design storm event. During construction of the project dwelling structure, installation of a pile foundation into the dune would result in the disturbance of the dune and vegetation on the site, including vegetation which stabilizes the dune where the pilings are placed and under the structure itself. The seaward pilings of the dwelling structure permitted by NA-148 M1 would be located approximately 128 feet seaward of the CCCL and thus will be located in the crest of the dune ridge which traverses the project site. This is a most disadvantageous placement. However, it will not be necessary to take out a section of the dune in the installation of the piles. Impacts to vegetation on the seaward side of the dune should be minimal in front of the structure and non existent in other parts of the dune located at the Wiggins parcel. Proposed permit NA-148 M1 contains conditions which require protection of the site and adjoining properties during construction, including the requirement for a preconstruction conference between a representative of the permittee and DNR. Construction fencing or sand fences are generally required by DNR pursuant to such a conference. However, a condition of proposed permit NA-148 which required a construction fence on the seaward side of the structure was made obsolete by and deleted in proposed permit NA-148 M1. The condition required a construction fence on the seaward side of the permitted structure to protect the dune. Under proposed permit NA-148, the structure would have been located landward of the dune. Proposed permit NA-148 M1 sites the structure on top of the dune negating the utility of the sand fence. The department will monitor and exercise supervisory authority over the project during construction. Upon completion of construction, proposed permit NA-148 M1 contemplates that the dune system on the project site be returned to preconstruction condition with the exception of vegetation where the piles were placed and under the structure. A structure located in a beach or dune system may affect the beach or dune system by affecting wind currents across the property. The dune system is recharged by windblown sand and the proximity of the structure to the dune may tend to have some adverse effect on that process. However, such a structure may also act as a "sand fence" and allow windblown sand to accumulate beneath it. Whatever the outcome with windblown movement of sand, the applicant must maintain the integrity of the dune in furtherance of the covenant. The presence of a structure in a beach or dune system may have localized impacts on the beach and dune system during a storm event. A pile foundation structure would increase scour and erosion about its pilings and have an impact equal to approximately twice the diameter of the pile. As example a 12" pile would cause approximately two feet of erosion. The pilings here are 10" diameter piles. In effect such "washtub" erosion reaches an equilibrium point at which it does not continue to get wider or deeper and can fill back in under varying seasonal conditions. A structure in the beach or dune system would have an impact on the beach and dune system during a design or major storm event. The design storm event is the 100 year storm event. In such a storm event, the most impactive type of structure is one with a rigid monolithic slab. An example of such a structure is a slab-on-grade dwelling structure with spread footer foundations. The Wiggins structure, a pile foundation dwelling, is designed to minimize impacts in the major storm event. The principal impacts of the structure proposed through the modified application related to the beach and dune system would be the impact on day-to- day recharge of the dune system by windblown sand and possible inhibition of dune reformation after an event which eroded the entire dune line. Condition 11 of proposed permit NA-148 addresses those impacts, namely it calls for promoting the integrity of the dune and the maintenance of the contours of the dune whatever the contingency. That is to say, Condition 11 requires Wiggins and, by restrictive covenant, future owners of the project site, to maintain the topography of the dune and to restore the dune to preconstruction conditions if it is damaged by or destroyed by wind, erosion, or during a storm event. Condition 11 also requires that salt-resistant vegetation indigenous to Florida's beaches and dunes be maintained in perpetuity and restored to preconstruction conditions if damaged by or destroyed by wind, erosion, or during a storm event, except where pilings are placed and under the dwelling. Revegetation of the dunes is a very viable option. Typically, the plants for revegetation are sea oats, and they are very hardy. If planted and given water for about the first three months thereafter, they will grow right along. Sea oats propagate through their roots. Their root systems contribute to the stability of the dune. The vegetative cover of the dune traps sand, assists in the accumulation of sand blown across the beach into dunes, and thus helps to maintain the dune topography. Again, Condition 11 does not require the owner of the project site to maintain vegetation underneath the structure on the landward face of the dune. The condition does require the dune itself to be maintained beneath the structure. Vegetation on the seaward side or face of the dune and in the side yards and areas of the dune not covered by the structure must be maintained. Vegetation on the seaward side of the dune plays the most important or critical part in the accumulation of the sand and maintenance of dune topography. The performance of Condition 11, both in maintenance of vegetation and dune contours where contemplated is feasible. Replanted vegetation should be used first to lend dune stability and integrity and should be successful. In the event that the method does not adequately provide the necessary dune aggregate or webbing to hold the dune together, artificial means such as sand fencing, geosynthetic geotextiles, webbing materials, or a slurry of biodegradable composite jell, may be used to provide such stability. Since 1985, DNR has used a dune maintenance condition in connection with other CCCL permits, and has had success with that policy. DNR has a mechanism in place to enforce Condition 11. A project site, such as permit NA-148 M1, encumbered by a covenant to maintain dune topography, such as Condition 11, will be entered in the DNR computer system as part of a master report of similar such covenanted properties. This report would have a "check date" column. That column might require that a site be reviewed every six months, for example. At the six month anniversary, the field inspector for the project area would get a notice instructing him to check the compliance of the site. He would do so and file a report with the DNR engineer responsible for the project. The engineer would file the report and set the next compliance check date. The occurrence of a major storm event in a project area would cause the Department to perform post-storm compliance survey on all projects in the affected areas. As each of the Respondents' experts established at hearing, proposed permit NA-148 M1 adequately address the concerns of DNR as contained in Brantley's analysis of the project and minimizes adverse impacts to the beach and dune system. The Petitioners proffered no expert testimony on this issue to the contrary. The primary concern relating to the cumulative effect of the project is also related to the project structure's impact on the frontal dune, namely the inhibition of dune recharge from windblown sand and its rebound after a storm event. As each of the Respondents' experts established at hearing, the conditions of proposed permit NA-148 M1 reduce or eliminate concerns regarding the cumulative effects of similar projects. With Condition 11, being universally required in the future the cumulative effect of projects similar to the project permitted by proposed permit NA-148 M1 would be tolerable. The cumulative impacts of projects similar to the Wiggins project, if subject to the same permit conditions, will not threaten the beach and dune system and may in fact provide additional protection to the upland structures because of requirements to restore and maintain existing conditions as necessary. The Petitioners proffered no expert testimony on this issue to the contrary. As the Respondents' expert witnesses established at hearing the project as modified is in compliance with all requirements of Chapter 16B-33, Florida Administrative Code, and Chapter 161, Florida Statutes. The Petitioners proffered no expert testimony on this issue at hearing to the contrary.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, recommended that proposed permit NA-148 M1 be issued by DNR to Wiggins subject to all its conditions. RECOMMENDED this 18th day of February, 1991, in Tallahassee, 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 18th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4992 The following discussion is given concerning the fact proposals of the parties: Petitioners' Facts Paragraphs 1 and 2 are subordinate to facts found. Paragraph 3 is not necessary to the resolution of the dispute. Paragraph 4 is subordinate to facts found. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 through 8 and the first sentence of Paragraph 9 are subordinate to facts found. The remainder of Paragraph 9 is contrary to facts found. The first sentence of Paragraph 10 is subordinate to facts found. Concerning the second sentence, while it is recognized that the placement of the piles in the dune crest is problematic, Condition 11 to the permit provides necessary remedial response. Paragraph 11 is subordinate to facts found as is the first sentence of Paragraph 12. The remaining sentences in Paragraph 12 are addressed by Condition 11. Paragraphs 13 through 19 are subordinate to facts found. Paragraphs 20 and 21 are contrary to facts found. Paragraph 22 is not necessary to the resolution of the dispute. Concerning Paragraph 23, whatever erosion occurs Condition 11 will require the applicant to rectify the situation. As to Paragraph 24, although it has not been necessary to test the nature of the maintenance covenant act after a storm event, nothing suggests that it would not be a viable requirement following such an eventuality. Paragraph 25 is subordinate to facts found. Paragraph 26 is contrary to facts found. DNR's Facts Paragraph 1 through 8 are subordinate to facts found. Paragraph 9 and 10 are discussions in law. Paragraphs 11 through 15 are subordinate to facts found. Paragraph 16 is not necessary to the resolution of the dispute. Paragraphs 17 through 30 are subordinate to facts found. The first sentence to Paragraph 31 is contrary to the impression of the importance of the dune in question. The second sentence in Paragraph 31 is subordinate to facts found. Wiggins' Facts Paragraphs 1-54 are subordinate to facts found. COPIES FURNISHED: Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-3000 Granville C. Burgess, Esquire 301 1/2 Centre Street Post Office Box 1492 Fernandina Beach, FL 32034 Brian F. McGrail, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-3000 T. R. Hainline, Jr., Esquire Andrew Keith Daw, Esquire Rogers, Towers, Bailey, Jones & Gay 1300 Gulf Life Drive Jacksonville, FL 32207
The Issue At issue in this proceeding is whether development orders (building permits) issued by Monroe County to John F. Myers are consistent with the Monroe County Comprehensive Plan and land development regulations.
Findings Of Fact Findings based on parties' stipulations John F. Myers is the owner of real property known as Lot 43, Block 3, Lower Matecumbe Beach subdivision, Lower Matecumbe Key, in unincorporated Monroe County, Florida. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development orders which are the subjects of this proceeding. Petitioner Department of Community Affairs is the state land planning agency with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and regulations promulgated thereunder; and with authority to appeal any development order issued in an area of critical state concern to the Florida Land and Water Adjudicatory Commission. Sections 380.031(18), 380.032, 380.07(2), Florida Statutes. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes. These statutory provisions require that Monroe County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development. Section 380.0552(7), Florida Statutes, formerly Chapter 27F-8, F.A.C. Monroe County has adopted a comprehensive plan, effective September 15, 1986, which complies with the Principles for Guiding Development and which has been approved by the Department in Chapter 9J-14, F.A.C., and by the Administration Commission in Chapter 28-29, F.A.C. The Monroe County comprehensive plan is implemented by and through its adopted land development regulations, codified primarily in Chapter 9.5, Monroe County Code (MCC). On December 10, 1993, Monroe County issued to Respondent Myers seven (7) building permits, each numbered 9230005763, for development of a 4,418 square foot single-family residence with 1,363 square feet of porches, and a 2,300 square foot ground slab. The permits also authorize development of a 183 square foot retaining wall, 38 pilings, and a "dock 183 sq. ft x 8ft." on the subject property. The permits were rendered to the Department on December 14, 1993. The open water shoreline on the subject property has accreted. Included in the environmental standards of the Monroe County land development regulations is Section 9.5-345, Monroe County Code, entitled "Environmental design criteria," which provides, in relevant part: Disturbed Lands: All structures developed, used or occupied on land which are [sic] classified as disturbed on the existing conditions map shall be designated, located and constructed such that: * * * (3) On lands classified as disturbed with beach berm: * * * b. No beach-berm material is excavated or removed and no fill is deposited on a beach berm; * * * f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; Lower Matecumbe beach is an active nesting area for marine turtles. Loggerhead turtles, the primary marine turtles which nest on Atlantic beaches in the Keys, are a threatened species under the federal Endangered Species Act. There are thirty beaches in the Florida Keys which consist of loggerhead nesting habitat. The beach on Lower Matecumbe Key, including that portion of the beach which fronts on Mr. Myers' property, is a known turtle nesting beach that is ranked as the second most heavily nested beach in the Keys. The Monroe County comprehensive plan recognizes the beaches on Lower Matecumbe Key as known loggerhead turtle nesting beaches. Pursuant to the comprehensive plan, the County has prepared endangered species maps as a tool to be utilized in identifying known turtle nesting areas. Surveys of turtle nesting behavior in the Florida Keys are accomplished through a network of volunteers. The nesting survey information obtained from this volunteer network provides very general locations with varying degrees of accuracy depending on the number and ability of the volunteers and the extent to which they can obtain access to privately owned beach front property. Because of the limitations in the survey data, it is not generally possible to determine whether turtles have nested on a particular lot. Marine turtles most commonly nest within the first 50 feet landward of the mean high tide line, although they have been known to go farther upland. Because of the compressed beach and berm habitat in the Keys, loggerhead turtles have been known to nest in grassy vegetation and woody vegetation more than 50 feet landward of the mean high water line. Mr. Myers' property is properly designated as "disturbed lands" and there exists on this property a "beach-berm complex" which is known to serve as an active nesting area of marine turtles within the meaning of Section 9.5-345, Monroe County Code. The setback requirement found in Section 9.5-345, Monroe County Code, applies to this development. Consequently, no structure may be located within fifty (50) feet of any portion of the beach-berm complex which is known to serve as an active nesting area of marine turtles. Section 9.5-4(B-3), Monroe County Code, contains the following definition that is pertinent to this proceeding: (B-3) "Beach berm" means a bare, sandy shore- line with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. According to the Monroe County Comprehensive Plan, the biota characteristic of beach systems in the Keys occur in up to four distinct generalized zones or associations, assemblages of plants and animals that have adapted to the environmental conditions of that zone. The zones on Keys beaches are described by Volume I of the Comprehensive Plan as follows: The strand-beach association is dominated by plants that are salt tolerant, root quickly, germinate from seed rapidly, and can withstand wave wash and shifting sand. Commonly found species include Sea Purslane (Sesuvium portulacastrum), Railroad Vine (Ipomoea pescaprae), Beach Grass (Panicum amarulum), Sea Oats (Uniola paniculata), Sea Lavender (Tournefortia gnapholodes), Coastal Ragweed (Ambrosia hispida) Bay Cedar (Suriana maritma), Cenchrus and Chamaesyce. On most Keys beaches this association occurs only at the base of the berm since the beach zone is very narrow. These plants also occupy the most seaward portion of the berm and continue some distance landward. * * * The next zone, "strand-dune" association begins with a steep and distinct increase in slope upward from the beach. This sloping portion of the berm receives the effects of the highest spring tides as well as storm-generated wave wash. The berm may be elevated only several inches or as much as several feet above the level of the beach and may extend landward hundreds of feet as a flat-topped plateau or beach ridge. The foreslope of the berm, or beach ridge, is vegetated primarily by the above-listed species of beach association. Grasses and herbaceous plants, which serve to stabilize this area, are most common. Proceeding landward, these pioneer species are joined by other species. * * * The strand-scrub association is generally considered a transition zone between strand-dune and hammock forest. Shrubs and occasional trees occur more frequently here and become more abundant as one proceeds landward. Species often found include Seagrape, . . . Wild Sage (Lantana involucrata), [and] Gray Nicker. . . . The most landward zone on the berm is occupied by tropical hardwood hammocks. On September 11, 1986, Monroe County issued building permit no. 20360 to John Brockway, Respondent Myers' predecessor in title, for development of a single-family residence on the subject property. The permit was issued prior to the effective date of the current Monroe County comprehensive plan and land development regulations, and prior to adoption of the setback provision in Section 9.5-345(o)(3)f., Monroe County Code, which is the subject of this proceeding. The Department of Community Affairs did not challenge the Brockway permit. In 1990, the Board of Trustees of the Internal Improvement Trust Fund issued to John and Patricia Brockway a deed for sovereignty submerged lands adjacent to the subject property. The County-approved site plans for the subject permits indicate that excavation for a stormwater swale will occur seaward of the proposed residence. Mr. Myers has no intent to excavate a stormwater swale seaward of the proposed residence. The subject building permits and approved plans shall be revised to eliminate the stormwater swale and demonstrate the means by which stormwater runoff will be addressed, as required by the Monroe County Code. Based upon this agreement, the Department will not pursue its allegation that the permits are inconsistent with section 9.5-345(0)(3)b., Monroe County Code, and considers that issue to be resolved by this agreement. The parties agree that that portion of the subject permits which authorizes development of a dock on Lot 43 is acceptable, and a dock may be developed on Lot 43, so long as the permits are amended to specify that (a) the dock shall be developed adjacent to Lot 43 on an existing dredged channel and not on the jetty or open water shoreline, and (b) development of the dock is conditioned upon the Owner obtaining permits for a principal use. Findings based on evidence at hearing The subject property is generally triangular in shape. It fronts on a cul-de-sac on the northeast side. Along the west side of the property is a dredged channel and a jetty or riprap revetment. Along the south side the property fronts on the Atlantic Ocean. On the east side of the property is a single-family residence. The subject property is undeveloped except for a fill pad or fill pile established some time ago around the cul-de-sac to the western side of the property. The purpose of the setback requirement in Section 9.5-345(o)(3)f., Monroe County Code, is to provide a habitat buffer to protect marine turtles from direct and indirect impacts of development, such as lighting impacts, noise, and clearing activities behind structures when people use their back yards. Buffers are a commonly used planning technique for both planning purposes and environmental purposes. The beach berm on the subject property has not moved over time. The shoreline has accreted in recent years and therefore the mean high tide line has moved seaward. This accretion provides additional habitat for marine turtles and affects the setback measurement when it is expressed as a number of feet from mean high water, as both parties have done in this case. However, the fact that a shoreline is either accreting or eroding is not relevant to a determination of the location of the beach berm. The parties agree that the berm is identified, at least in part, by a visual assessment of the increase and decrease in elevation of the property. A berm is essentially a rise in elevation which, moving landward from the water, rises up to a high point then begins to drop back off gradually until one reaches the adjacent grade or the natural grade beyond the berm. When the grade flattens out, that is generally the landward extent of the berm. The greater weight of the evidence shows that the landward extent of the beach berm complex on Respondent's property, and the area commonly utilized by marine turtles as nesting habitat are each approximately 50 feet landward of the mean high water line depicted on the June 1994 survey of Respondent's property. Expressed as a measurement from mean high water, the setback required by Section 9.5-345(o)(3)f., Monroe County Code, on Respondent's property is approximately 100 feet. A variance from the setback provision in Section 9.5-345(o)(3)f., Monroe County Code, is not authorized. However, a variance from the front yard setback may be available to Respondent if he wishes to develop the particular single-family residence shown on the plans approved with the subject permits. The Monroe County comprehensive plan, Vol. I, Background Data Element, Section (3) entitled "Community Character," provides: A principal focus of growth management is the protection and enhancement of quality of life. Community character is a fundamental element of the circumstances described as quality of life. Community character refers to the nature of an area and can be described in terms of both the natural and the built environment. For example, the character of an undeveloped area is determined by the natural environment and is characterized by extensive open space and other environmental values. In contrast, the character of a city is defined by the built environment and the quality of life depends upon the design and effect of buildings. * * * . . . . In the Keys there are readily identifiable community characters that can be defined by the nature and extent of various land uses per community. These community character types are: Native, Sparsely Settled, Sub-Urban, Urban Transition and Urban. The comprehensive plan goes on to describe each type of community character, and includes a lengthy discussion of the criteria for determining community character. These criteria include land use, design of man-made elements including intensity of buildings and the nature of open spaces, landscaping, and social interactions and experiences. Setbacks are not mentioned in the list of criteria for determining community character or in the descriptions of the various community character types. Regardless of whether other homes in the neighborhood meet the setback requirement in Section 9.5-345(o)(3)f., Monroe County Code, requiring Respondent to do so will not affect the community character of the neighborhood as defined in the Monroe County comprehensive plan.
Recommendation Based upon the foregoing it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying permission to develop under Monroe County building permits no. 9230005763 as issued on December 10, 1993. It is further RECOMMENDED that the final order state that Respondent will become eligible for permits if his development plans are modified as provided in paragraph 40 of the Conclusions of Law. DONE AND ENTERED this 15th day of August 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 15th day of August 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraphs 1 through 7: Accepted. Paragraph 8: Rejected as constituting a conclusion of law, rather than a proposed finding of fact. Paragraphs 9 through 14: Accepted. Paragraphs 15 and 16: Rejected as statements of position or legal argument, rather than proposed findings of fact. (The statements in these paragraphs are essentially correct, but they are not proposed findings of fact.) Paragraphs 17 through 20: Rejected as further statements of position or legal argument, rather than proposed findings of fact. (To the extent necessary, the parties' positions are addressed in the conclusions of law portion of this Recommended Order.) Paragraph 21: Accepted. (This is a stipulated "fact".) Paragraphs 22 through 24: Accepted, with some minor clarification. Paragraphs 25 through 34: Rejected as subordinate and unnecessary details. (Most of the details proposed in these paragraphs are supported by the evidence and all were considered in the formulation of the ultimate findings of material fact, but none of these details need to be included in the findings of fact in this Recommended Order. The findings proposed in paragraph 33 are rejected for the additional reason that they are supported only be uncorroborated hearsay evidence.) Paragraphs 35 and 36: Accepted in substance. Paragraph 37: Rejected as a statement of position, rather than a proposed finding of fact. Paragraphs 38 and 39: Accepted. Paragraph 40: Rejected as constituting argument, rather than proposed findings of fact. Paragraph 41: Accepted. Paragraphs 42 and 43: Rejected as constituting argument, rather than proposed findings of fact. Findings proposed by Respondent: Paragraphs 1 through 14: Accepted. (These are all stipulated facts.) Paragraph 15: Accepted. Paragraph 16: Rejected as subordinate and unnecessary details. Paragraph 17: First and last sentences rejected as irrelevant. Middle sentence accepted. Paragraph 18: First sentence accepted. Last sentence rejected as subordinate and unnecessary details. Paragraph 19: Most of this paragraph is rejected as subordinate and unnecessary details or as irrelevant. Some portions are rejected as not fully supported by persuasive evidence. Paragraph 20: First sentence rejected as too broadly worded to be meaningful. The last sentence is rejected as being a conclusion that is not warranted by the evidence. Paragraph 21: Accepted. Paragraph 22: First three sentences rejected as subordinate and unnecessary details. Last sentence accepted. Paragraph 23: First sentence rejected as not fully supported by the evidence. The berm line is, in general, a gentle curve that for the most part runs parallel to the gentle curve of the shore line. Second sentence is rejected as irrelevant or as unduly repetitious. Paragraph 24: Second sentence accepted. The remainder of this paragraph is rejected as subordinate and unnecessary details or as irrelevant. Paragraph 25: The first sentence is rejected as not fully supported by the persuasive evidence; the evidence is too vague to support the use of the word "immediately" in this context. The second sentence is rejected as irrelevant. The third, fourth, fifth, and sixth sentences are rejected as being contrary to the greater weight of the persuasive evidence. Paragraph 26: The first four sentences are rejected as subordinate and unnecessary details because the greater weight of the evidence is consistent with the version put forth by the Petitioner's witnesses. Greater confidence has been placed in the measurements by the Petitioner's witnesses than in the conflicting measurements described by Respondent's expert witness. The fifth sentence is accepted in substance. The sixth and seventh sentences are rejected as consisting of arguments or of conclusions that are contrary to the greater weight of the evidence. Paragraphs 27 and 28: Rejected as subordinate and unnecessary details. Paragraph 29: First two sentences rejected as argument. Third and fourth sentences rejected as contrary to the greater weight of the evidence and as apparently based on testimony that has been taken out of context or has been misunderstood. Fifth sentence rejected as argument. Sixth sentence rejected as an over-simplification. Seventh sentence rejected as an argument or conclusion that is contrary to the greater weight of the evidence. Paragraph 30: Rejected as unnecessary summaries of testimony, rather than proposed findings of fact. Further, these summaries are, for the most part, either not fully supported by persuasive competent substantial evidence or are contrary to the greater weight of the evidence. Some of these summaries also emphasize details that are apparently based on a misunderstanding or misinterpretation of selected portions of the evidence and ignore the greater weight of the evidence. Paragraph 31: First sentence rejected as not supported by persuasive competent substantial evidence. (To the contrary, it appears to be based on a misunderstanding or a misinterpretation of Mr. Metcalf's testimony.) The second, third, and fourth sentences are rejected as argument; specifically, argument that is contrary to the greater weight of the evidence. Paragraph 32: Rejected as argument; specifically, argument that is contrary to the greater weight of the evidence. COPIES FURNISHED: Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2796 Overseas Highway, Suite 212 Marathon, Florida 32301-1859 Chris Haughee, Esquire Akerman, Senterfitt & Eidson, P.A. 216 South Monroe Street, Suite 200 Post Office Box 10555 Tallahassee, Florida 32301 Randy Ludacer, Esquire Fleming Street Key West, Florida 33040 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Bob Bradley, Secretary Florida Land & Water Adjudicatory Commission Carlton Building Tallahassee, Florida 32301
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should grant the application filed by the DeVries for a coastal construction line (CCCL) permit to build a house (with dolomite drive, septic tank, and drain field) and a dune walkover seaward of the CCCL on their property on the St. Joe Peninsula in Gulf County (Permit GU- 501).
Findings Of Fact The Neighbors Mark and Rita DeVries own 0.163 acre in Block 6 of Peninsular Estates, which is on the St. Joe Peninsula in Gulf County. The St. Joe Peninsula is oriented approximately north and south, with the water of the Gulf to the west. DEP Monument R-83 is on the DeVries' property. Linda McAlpin also owns property in Block 6 of Peninsular Estates seaward of the DeVries' property. She and her husband, Dr. Glenn Mark McAlpin, bought the property in 2001. The dunes on the property had been cleared prior to 1973 for construction of a beach house and driveway. The prior owner's beach house was then damaged by major storms. In 2001 and 2002, the McAlpins got a CCCL permit to build a pile- supported 5,000 square foot, three-story house over a concrete slab used as a parking area, with a dolomite driveway, on her property. There is no private property to the west (i.e., seaward) of her property. In 2006, Dr. McAlpin quitclaimed his legal interest to his wife to insulate it from his potential professional liabilities. Except for the legal consequences of the quitclaim deed, the McAlpins continue to treat the property as a marital asset. Dr. McAlpin continues to handle practically all matters relating to the maintenance of the house, including repairs necessitated by major storms and beach erosion. The Beach and Dune System Besides the McAlpins, there are beach houses to the east (landward) and to the north of the DeVries' property. The house to the north was moved landward from its original location after it suffered major storm damage in 2005. It used to be north of the McAlpin house. There is a house to the south of the McAlpin house. Except for the house that was moved, there is a continuous line of construction seaward of the CCCL to the north and south along the line between the McAlpin house and the house to the south. The McAlpin house also suffered damage from the storms of 2004 and 2005. Sand sediment under the seaward side of the house was scoured out and undermined, and part of the frangible concrete slab and some of the plumbing under that part of the house dropped to the new, lower sand surface. The McAlpins had sand brought in to place under the house and began to build a seawall around the pilings and new sand until the seawall project was halted for failure to obtain a permit. In 2008 and 2009, a beach restoration project was installed on the peninsula, which added sand to the beach and formed a dune immediately seaward of the McAlpin house. There is a dispute whether the DeVries propose to build on a frontal dune. The McAlpins contend that the seaward toe of the frontal dune is seaward of their house, that its crest is on the DeVries' property just east of their common boundary, and that the frontal dune extends landward approximately to the DeVries' common boundary with the property to the east. Michael Dombrowski, P.E., gave expert coastal engineering testimony in support of McAlpins' contention. The DeVries and DEP contend that the beach restoration project re-created the frontal dune that was seaward of the McAlpins' house before the major storms of 2004 and 2005 and that the McAlpins' house sits on a separate primary dune landward of the primary dune. Michael Walther, P.E., and Tony McNeal, P.E., gave expert coastal engineering testimony in support of the contention of the DeVries and DEP. The beach restoration project created a dune, i.e., a mound or bluff of sand, that is landward of the beach, parallel to the shoreline, and continuous in the vicinity. The dune has been planted with native vegetation that is thriving and spreading. Since its installation, the dune has been stable, and sand has been accreting on the dune. The dune is of sufficient vegetation, height, continuity, and configuration to offer protective value up to a major, 40- to 60-year return storm. As such, it is a frontal dune. See § 161.053(5)(a), Fla. Stat. There is a trough between the dune created by the restoration project and dune on which the McAlpins' house sits. (The trough is the landward toe of the frontal dune and the seaward toe of the dune under the McAlpin house). The latter dune system crests at approximately 18 feet North American Vertical Datum of 1988 (NAVD) on the DeVries' property a little landward of the common boundary between the two properties. It is a significant dune in that it has sufficient height and configuration and vegetation (especially on the DeVries' property, which is heavily vegetated) to provide protective value. See Fla. Admin. Code R. 62B-33.002(17)(a). The alterations made to the McAlpin property by the prior owner adversely affected the alongshore continuity of the dune system, but it still is a primary dune in that it affords a measurable level of protection to upland property and structures from the predictable erosion and storm surge levels associated with coastal storm events. See Fla. Admin. Code R. 62B- 33.002(17)(b). The Proposed Beach House The DeVries' application is to build a pile-supported 3,000 square foot, two-story house over a concrete slab used as a parking area, with dolomite drive and a dune walkover. The house would be up to approximately 110 feet seaward of the CCCL, landward of the adjacent McAlpin house, and landward of the 30- year erosion line (DEP's projection of the seasonal high-water line 30 years in the future). It is undisputed that the proposed construction will conform to the requirements of the Florida Building Code. The DeVries' proposed house would be on 18 one-foot square piles, with two eight-inch square piles supporting the wooden deck. This construction method, which is standard, minimizes impacts from erosion and scour. The DeVries propose a septic tank and drain field between the house and the common boundary with their neighbor to the east (i.e., the landward side of the property). This optimal location for the septic tank and drain field is made possible by the orientation and dimensions of the proposed house (a relatively narrow rectangle with the longer sides in the north-south direction). Petitioners contend that impacts should be minimized by requiring construction of a narrower, taller structure. The footprint already is smaller than the footprint of the McAlpins' house. Requiring a further reduction would create problems in the design of the interior space of the house. It was proven that the dimensions of the house proposed by the DeVries is reasonable and sufficiently minimizes impacts. There will be no net excavation of in situ sand for the construction authorized in proposed Permit GU-501. Sand excavated for the septic tank and drain field, along with additional sand brought to the construction site, will be used to fill a bowl-like feature in the middle of the DeVries' property and level the ground for the concrete slab under the DeVries' proposed house. There will be a net addition of sand to the site. The concrete slab beneath the DeVries' proposed house is designed to be partially cut so as to break into smaller pieces in a catastrophic storm event and not cause collapse, displacement, or other structural damage to the elevated portion of the building or supporting foundation system. Cf. Fla. Admin. Code R. 62B-33.002(9). The concrete slab proposed beneath the house was reduced in size to eliminate a roughly seven-foot by 16-foot rectangle in the northwest corner and not to disturb a higher dune feature that exists in that location. Petitioners contend that the DeVries' concrete slab could be further reduced in size to minimize impacts to the primary dune. However, it was proven that the size of the concrete slab is reasonable and sufficiently minimizes impacts. The driveway authorized by proposed Permit GU-501 will narrow from approximately 30 feet wide at the house to approximately 12 feet at the County right-of-way, which reduces impacts (and is narrower than the McAlpins' driveway). Petitioners contend that the driveway should be narrower to minimize impacts. It was proven that the width of the proposed driveway is reasonable and sufficiently minimizes impacts. Frangible curbing is proposed along both sides of the driveway. This will prevent or discourage driving elsewhere on the lot. The Proposed Dune Walkover The DeVries' proposed dune walkover would be connected by stairs to a wooden deck off the northern end of the first story of the house. From the stairs, the dune walkover proceeds for a short distance in a northerly direction, then proceeds in a westerly direction towards the beach within a 10-foot wide access easement. It would be four feet wide and at least two feet above the ground surface and would pass within ten to 20 feet of the north side of the McAlpins' house. It would be supported by four-inch by four-inch wooden piles. Petitioners contend that the DeVries' proposed dune walkover should be denied because there is a public beach access off White Sands Drive approximately 500 feet to the south. The purpose of the dune walkover would be to avoid the impacts that would occur if people staying at the DeVries' beach house use the beach access easement instead of the public access. The existence of the public access is not a ground to deny private beach access via a dune walkover that meets CCCL permitting criteria. Petitioners also contend that the proposed dune walkover should be denied because a ground-level foot path was not considered. Since the purpose of the dune walkover is to avoid the impacts of an on-grade footpath, that option was considered and rejected. Petitioners contend that the proposed dune walkover should be reduced to three feet. But it was proven that the proposed four-foot width is standard and reasonable; that the construction method already minimizes impacts; and that the impacts from a three-foot wide walkover would not be much less than the proposed walkover. Petitioners also contend that the DeVries' dune walkover should use rounded piles, not square ones as proposed. They base this contention on DEP's Beach and Dune Walkover Guidelines (Dune Walkover Guidelines), which state that rounded piles are preferred. Rounded piles are not mandatory, and it was proven that the proposed piles are reasonable and sufficient. Petitioners contend that the proposed dune walkover actually is wider than four feet overall because the application drawings make it appear that the wooden piles are outside the walkway. However, it was proven that the drawings are in error to that extent and that the maximum width of the dune walkover actually will be four feet, as required by special condition 8 of proposed Permit GU-501. Petitioners contend that the proposed dune walkover must be denied because the site plan depicts it as terminating on the frontal dune created by the 2008 beach restoration project, which is contrary to the Dune Walkover Guidelines. Petitioners also contend that, while the Dune Walkover Guidelines require adequate elevation to clear the vegetation on the dunes, every part of the proposed walkover may not clear the dune entirely, according to the elevations in the site plan and construction drawings in the DeVries' application. Special condition 8 of proposed Permit GU-501 addresses Petitioners' contentions. It requires the proposed dune walkover to extend up to (but more than ten feet seaward of) the existing line of vegetation (not the line of vegetation at the time of the survey included as part of the DeVries' application) and requires that "the deck of the walkover structure shall maintain an elevation above the existing dune vegetation canopy . . . ." Also, under special condition 8, "[t]he optimum siting of the walkover structure shall be determined by the [DEP] staff representative during the preconstruction conference to provide maximum protection to the existing dune topography and vegetation located on the site." This will ensure compliance with the Dune Walkover Guidelines, which defines optimal siting. Petitioners contend that the proposed dune walkover must be denied because the DeVries' beach access easement does not extend to the existing vegetation line. Proposed GU-501 does not authorize a trespassing. See Fla. Admin. Code R. 62B-33.0155(4). If additional access easement is required to reach the beach, it will have to be acquired. Otherwise, the proposed dune walkover cannot be built. To mitigate for the minimized impacts from the DeVries' proposed construction, special condition 5 of proposed Permit GU-501 requires the DeVries to "plant a mix of a minimum of three native salt-tolerant species within any disturbed areas seaward of the control line, including the septic tank and drain field area." Obviously, there will not be mitigation planting where the concrete slab and dolomite driveway will be. The plants must be indigenous species or approved by DEP, and "a minimum of 80 percent of the planted areas shall be covered with the selected species." Sod and planting invasive nuisance species are not authorized. In addition, the site plan, which is part of the application, has a proposal to "maintain [planted native vegetation] adequate by temporary irrigation." Petitioners contend that the GU-501 conditions are not sufficient because the indigenous plants are not specified. However, the evidence provided reasonable assurance that appropriate species would be planted. Petitioners also contend that the GU-501 conditions are not sufficient because the success criteria are inadequate. Specifically, Petitioners compare the 80 percent coverage requirement in special condition 5 with the 90 percent success rate after 180 days and after 360 days required by the conditions of the beach restoration project. The beach restoration project's conditions could be viewed as less strict than the GU-501 conditions. In any event, the GU-501 conditions provide reasonable assurance of mitigation of the impacts. Petitioners contend that temporary impacts are not mitigated. However, temporary impacts will be minimized by special conditions 1 (pre-construction conference) and 3 (requirement of optimal construction fencing, including to protect the dune feature at southwest corner of the DeVries' property), 4 (only minimum disturbance required for construction allowed), and 9 (requirement to remove all rubble and construction debris to a location landward of the CCCL). This small level of risk from temporary disturbances during construction and before mitigation plantings take hold is unavoidable. It does not warrant the denial of a CCCL permit. In accordance with DEP's requirements, the proposed dune walkover is designed as a minor, expendable structure, and partitions of the house are designed to break away or be "frangible"—i.e., to "collapse from a water load less than that which would occur during a 100-year storm event without causing collapse, displacement, or other structural damage to the elevated portion of the building or supporting foundation system." See Fla. Admin. Code R. 62B-33.002(9). These designs help prevent larger, unmitigated storm damage to the beach and dune system. Due to its proximity, the McAlpins' house could sustain additional damage from the frangible parts of the DeVries' construction during such a storm. However, those risks are contemplated by DEP's frangibility requirements and are relatively small. Those risks do not warrant the denial of a CCCL permit. The County Right-of-Way There is a paved road called White Sands Drive that approaches the McAlpins' dolomite driveway and the proposed location of the DeVries' dolomite driveway from the east. The McAlpins' driveway extends from their house in a southeasterly direction, crosses the County right-of-way for Blue Water Circle (which has not been built), and connects with the paved surface of White Sands Drive in the curve between its east-west segment and its north-south segment. The DeVries' proposed dolomite driveway would terminate at the County right-of-way for Blue Water Circle to the northeast of the McAlpins' driveway, where the elevation is approximately 13 to 14 feet NAVD (similar to the elevation of the McAlpins' driveway). There is a relatively narrow dune feature between the McAlpins' driveway and the DeVries' proposed driveway that rises to an elevation of approximately 19 feet NAVD in the center of the dune feature. This dune is significant in that it has sufficient height and vegetation to provide protective value. See Fla. Admin. Code R. 62B-33.002(17)(a). In itself, it is not a primary dune because it does not have the configuration and alongshore continuity to afford a measurable level of protection to upland property and structures from the predictable erosion and storm surge levels associated with coastal storm events. See Fla. Admin. Code R. 62B-33.002(17)(b). This dune feature extends into the County right-of- way. Depending on the route taken, a car using the DeVries' proposed driveway might drive over or through a small part of the extreme southeastern end of this dune feature. It might be possible to avoid the dune feature entirely by hugging the eastern side of the driveway and, to the greatest extent possible, using the part of the County right-of-way that is used by the neighbor to the east to access their dolomite driveway from White Sands Drive. If not entirely avoiding the dune feature, it would be possible to drive over or through only a very small part of the dune feature where elevations are no greater than 14 to 15 feet NAVD. DEP and the DeVries contend that impacts to the County right-of-way should not be considered because they were not timely raised. However, Petitioners' allegations were broad enough to include consideration of those impacts. DEP and the DeVries also contend that impacts to the County right-of-way are prohibited by general and special conditions. General permit conditions include: Construction traffic shall not occur and building materials shall not be stored on vegetated areas seaward of the control line unless specifically authorized by the permit. If the Department determines that this requirement is not being met, positive control measures, such as temporary fencing, designated access roads, adjustment of construction sequence, or other requirements, shall be provided by the permittee at the direction of the Department. . . . * * * The permittee shall not disturb existing beach and dune topography and vegetation except as expressly authorized in the permit. Before the project is considered complete, any disturbed topography or vegetation shall be restored as prescribed in the permit with suitable fill material or revegetated with appropriate beach and dune vegetation. * * * (j) Any native salt-tolerant vegetation destroyed during construction shall be replaced with plants of the same species or, by authorization of the Department, with other native salt-tolerant vegetation suitable for beach and dune stabilization. Unless otherwise specifically authorized by the Department, all plants installed in beach and coastal areas - whether to replace vegetation displaced, damaged, or destroyed during construction or otherwise - shall be of species indigenous to Florida beaches and dunes, such as sea oats, sea grape, saw palmetto, panic grass, saltmeadow hay cordgrass, seashore saltgrass, and railroad vine, and grown from stock indigenous to the region in which the project is located. Fla. Admin. Code R. 62B-33.0155(3). In addition, special condition 4 of proposed Permit GU-501 states: "Existing vegetation shall be disturbed only to the minimum extent necessary to complete work within the authorized construction limits." Finally, proposed permit GU-501 does not authorize the construction of a driveway through the County right-of-way. See Fla. Admin. Code R. 62B-33.0155(4) (permit does not authorize trespass). Notwithstanding the conditions and limitation of proposed GU-501, it is reasonable to foresee that, to use the proposed driveway, cars will drive through the County right-of- way between the DeVries' proposed driveway and White Sands Drive. The extent to which the dune feature would be impacted must be considered in this case. See Fla. Admin. Code R. 62B-33.002(33) (impacts can be direct or indirect). It appears possible to use the DeVries' proposed driveway and avoid any parts of the dune feature in the County's right-of-way above the 14-foot NAVD elevation by using the part of the right-of-way currently being used for access by the DeVries' neighbor to the east. To minimize impacts, this should be required as an additional condition of GU-501. Construction of the proposed beach house and dune walkover on the DeVries' property will not alter the coastal system by measurably affecting the existing shoreline change rate, significantly interfering with its ability to recover from a coastal storm, disturbing topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure or the protective value of the dune system is significantly lowered. As such, there will be no significant impacts. See Fla. Admin. Code R. 62B-33.002(33)(b).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing GU-501, with an additional condition to use the part of the County's right-of-way currently being used for access by the DeVries' neighbor to the east and avoid any parts of the dune feature in the right-of-way above the 14-foot NAVD elevation to access the DeVries' proposed driveway. DONE AND ENTERED this 2nd day of November, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 2nd day of November, 2011. COPIES FURNISHED: Ross Stafford Burnaman, Esquire 1018 Holland Drive Tallahassee, Florida 32301-4508 Kelly L. Russell, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 E. Dylan Rivers, Esquire Ausley and McMullen, P.A. 123 South Calhoun Street Tallahassee, Florida 32301-1517 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact On January 13, 1983, Respondents Donia and Bobowski filed with Monroe County petitions for special use approval to deposit fill and construct an access driveway within the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The property on which the roads are proposed to be constructed consists of two lots, each 1.09 acres in size. The lots are contiguous to each other and are located on Sugarloaf Key, Monroe County, Florida. Respondents Bobowski and Donia represented in their petitions for special use approval that they owned or were in the process of purchasing the subject property. Respondent Bobowski submitted with his application a contract for sale to him of both 1.09-acre lots which specified the sale was to be closed by March 25, 1982. Ms. Donia included with her petition a letter stating that Mr. Bobowski was in the process of deeding a portion of his land to her. On January 26, 1983, Respondent Bobowski filed a Complaint for Specific Performance against James Knox Julian, Jr., owner of record of the property for which Bobowski and Donia submitted applications for special use approval. As of September 10, 1984, Julian had filed a motion to dismiss that Complaint on grounds that there had been no pleadings filed or action taken by Bobowski for a period of more than one year. There is no evidence that James Julian authorized Respondents Donia or Bobowski to submit the applications for special use approval on his behalf. Respondents Donia and Bobowski have been sent copies of pleadings in this case. The Monroe County records containing Donia's application for special use approval indicate that Catherine Donia is now Catherine Bobowski. Ms. Bobowski participated in a telephonic conference call between the parties and the undersigned in which she was specifically advised of the scheduled final hearing in this case and of the necessity for her and Thomas Bobowski to appear to present their evidence in support of their applications. Neither she nor Mr. Bobowski, nor any representative of theirs, appeared at the final hearing. On January 20, 1983, Respondents McDonald and Allen filed an application for special use approval to deposit fill and construct an access driveway within the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The McDonald/Allen property is a 2.9 acre parcel on Sugarloaf Key in Monroe County Florida. The proposed driveway runs from State Road 939A through a tidally inundated black mangrove community to a dune ridge and tropical hardwood hammock fronting the Atlantic Ocean. The driveway project described in the original application involved the deposit of 433 cubic yards of limerock fill to construct an access driveway 325 feet long, 12 feet wide, and 4 feet deep. Six culverts twelve inches in diameter were to be placed at 50-foot intervals along the access driveway. When the State of Florida Department of Environmental Regulation indicated disapproval of a fill permit as the project was originally proposed, the project was amended to replace the twelve-inch diameter culverts with four box culverts three feet by eight feet. The application for special use approval does not include a request to fill a turnaround area or a pad for a single-family residence, does not include a final set of building plans or a final selection of a house site, and does not seek approval for the placement of a septic tank system. Rather, the application for special use approval seeks permission for the driveway portion of the construction project only. The McDonald/Allen property is located on the southern shoreline of Sugarloaf Key in an area referred to as Sugarloaf Beach. The foreshore or foredune fronting the Atlantic Ocean consists of a beach and berm rising to a dune crest approximately 30 feet from the ocean. The sandy beach is approximately 6 to 15 feet in width. The dune top extends landward from the dune crest for approximately 100 to 125 feet before descending to the back dune and the wet land and transitional areas. The transitional area continues landward approximately 60 feet before descending into the wetlands. The wetlands run landward approximately 300 feet to the property boundary on State Road 939A. The foreshore or foredune of the McDonald/Allen property is covered by sea oats, sea purslane and cord grass assemblage. The entire dune top from the dune crest to the back dune is covered by a mature, climax tropical hardwood association. Species present include: torchwood, white stopper, inkwood, blolly, gumbo-limbo, blackbead, Spanish stopper, Jamaican dogwood, seven-year apple, sapodilla, coconut palm, short-leaf fig, gray nicker, wild lantana, buttonwood, snowberry, prickly pear cactus, bay cedar, and spider lily. The vegetation displays a stratified structure with a high canopy composed of very large, tall trees an indication of a very mature system. The transitional wetland community found on the back dune consists of saltwort, sea daisy, railroad vine, and seagrape. The wetlands-are characterized as submergent wetlands containing black mangroves. The black mangrove community is inundated year round with water depths measured between 6 and 12 inches over the majority of the property. The black mangroves reach heights of 15 feet, with large trees located over the southern extent of the wetlands (adjacent to the upland ridge). Attaining heights of 25 to 30 feet, these larger mangroves form a hammock with an open understory in a dense canopy. The mangrove area is a productive, healthy system. The wetlands of the McDonald/Allen property are a part of a larger area of healthy wetlands approximately 10 acres in extent, bounded by State Road 939A on the north, the dune ridge to the south, an unculverted fill road to the west, and a culverted fill road to the east. Wildlife present on the property include marsh rabbits, raccoons, black crown night herons, little blue herons, Louisiana herons, white crown pigeons, blue crabs, fiddler crabs, mosquito fish, killy-fish, sailfin mollies, and sheepshead minnows. On February 1, 1983, Respondent Stage filed an application for special use approval to deposit fill and construct an access driveway in the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The Stage property is a 0.64-acre lot on Big Pine Key in Monroe County, Florida. The proposed driveway runs from Long Beach Boulevard through a wet land area to a dune ridge and hammock fronting the Atlantic Ocean. The driveway project described in the original application called for the deposit of limerock fill to construct an access driveway 100 feet long, 12 feet wide, and 2-3 feet deep along the east side of the lot. Two culverts 12 inches in diameter were to be placed 50 feet apart. When the State of Florida Department of Environmental Regulation indicated disapproval of a fill permit as the project was originally proposed, the project was amended to locate the access driveway through the center of the lot and to replace the 12-inch diameter culverts with two 36-inch diameter culverts to be placed at the base of the access drive. The proposed access road is to lead to a proposed turnaround and a proposed single-family residence on the back dune or dune ridge of the Stage property. The application for special use approval does not include a request to fill a turnaround area or a pad for a single-family residence, does not include a final set of building plans or a final selection of a house site, and does not seek approval for the placement of a septic tank system. Rather, the application for special use approval seeks permission for the driveway portion of the construction project only. The Stage property is located on the southern shore of Long Beach on Big Pine Key. The natural systems of the Stage property are similar in many respects to those of the McDonald/Allen property. The foreshore or foredune fronting the Atlantic Ocean has a shoreline consisting of a dense mangrove fringe. The foredune rises to a dune crest approximately 28 feet landward from the shoreline. The dune top extends landward from the dune crest approximately 100 feet before descending to the back dune and wetland area. The back dune runs landward 40 feet before descending into the wetlands. The wetlands run landward approximately 10 feet to a filled area approximately 75 feet deep fronting Long Beach Boulevard. Landward of the mangrove fringe on the foredune is a dense growth of night shade, behind which the hardwood hammock vegetation begins, at approximately 10 feet from the shoreline. The understory of the hammock has a very rich growth of wild bamboo. Trees in the hammock community include blolly, spider lily, Jamaican dogwood, Keys bamboo, gumbo-limbo, darling plum, seven-year apple, wild dilly and coconut palm. The area along the lower back dune displays transitional vegetation consisting of blackbead, limber caper, sea grape, bay cedar, sea daisy, and remnant black and white mangroves. At lower elevations of the property below the back dune and abutting the roadside fill area are found buttonwood, black mangrove without pneumatophores, saltwort, red mangrove, black mangrove, white mangrove, and sea purslane. The wetland and red mangrove area is about 10 to 15 feet in size, healthy, and of high productivity. The transitional vegetation is productive in that it has a very high value to the organisms that are feeding upon it in that particular area, although its productive value is lower than that of the red mangrove system. Wildlife found on the property include marsh rabbit, raccoon, Key deer, and hermit crabs. Other species expected to be found are the eastern indigo snake the red black snake, and the silver rice rat, all species listed by the federal government as threatened. Both the McDonald/Allen and Stage properties are located in the Florida Keys in Monroe County, which has been designated an area of critical state concern. The Florida Keys is the only tropical area in the entire continental United States. The uncontroverted testimony of witnesses for the Respondents and Petitioner was that virtually every natural feature found there is unique. The Long Beach and Sugarloaf Beach coastal dune structures are particularly significant natural systems because of the scarcity of these sandy beaches and dune systems in the Florida Keys. Such systems have been estimated to represent only 2 percent of the land mass of the Florida Keys. They are even more scarce when considered in reference to the land mass of the United States because there are no comparable natural systems in North America. The dune systems on Sugarloaf Beach and Long Beach are storm berms or storm beaches, which are created when near source material is driven by storm effect onto the beach and ridge. These beaches are stable when highly vegetated and undisturbed. The plant communities found on the dune system have adapted to resist the impact of storms, both wind and wave. Seagrape trees, for example, diminish the shearing effect of the wind by absorbing wind energy. Many of the plant species are deeply rooted and essentially adapted to the intermittent effects of storms. When the natural systems and vegetative communities are altered, the dune system loses its resistance to storm and is subject to instability and erosion. Many of the plant and animal species present in the Florida Keys and on the McDonald/Allen and Stage properties are only found in the Keys. They are endemic species which have deviated from the mother populations on the mainland, and they are of particular interest to the scientific community. The McDonald/Allen property, in particular, is unique because it combines a very mature hardwood system with the coastal dune structure. Maturity of the hardwood hammocks is evidenced by the large dimensions of the trees, especially the gumbo-limbos and inkwood, and the height and structure of the tree canopy. The mangrove wetland areas on the McDonald/Allen and Stage properties could also be called unique by virtue of their location in the Florida Keys, though they are similar to other mangrove wetland areas. They are both productive, healthy systems. Such mangrove systems are considered to be one of the most important natural resources in Southern Florida. They provide shoreline protection, build up land areas, provide nutrients to the marine environment, and serve as nurseries for marine species and wildlife habitat for reptiles and wading birds such as herons, egrets, white crown pigeons and gray king birds. Transitional areas may have lower productivity than the wetland areas, but they still have a very high value to organisms feeding upon them. A community of animals will still be dependent upon the transitional vegetation, and removal or stress to that vegetation will also stress the dependent animal elements. On April 22, 1983, the Zoning Board of Monroe County denied the McDonald/Allen application for special use approval to deposit the fill and construct the access road. Reasons for the denial were that the project failed to comply with Sections 19-75(2)a, 19-111, and 19-59(6), Monroe County Code. Section 19-75(2)a requires a determination of the effect of the change under review on that particular property and on surrounding properties. Section 19- 111(a)(4) requires that all applications for a permit in wetland areas consider the natural biological functions, including food chain production, general habitat, nesting, spawning, rearing and resting sites for aquatic or terrestrial species, the physical aspects of natural drainage, salinity and sedimentation patterns, and physical protection provided by wetland vegetation from storm and wave action. Section 19-59(6) requires consideration of the project's compliance with the County's Comprehensive Plan. The Zoning Board was particularly concerned about the fact that the project was contrary to the policy expressed in the County's Comprehensive Plan to prohibit new construction that would threaten the stability of dune ridges, and about the cumulative impact on the wetland areas and on the dune system of several nearby projects for which applications had been submitted. On August 5, 1983, the Board of County Commissioners reversed the denial of the McDonald/Allen application for special use approval by adopting Resolution No. 233-1983. The Resolution authorizes the deposit of fill and construction of the access driveway as requested by the McDonald/Allen application. The Resolution makes no finding that the project meets the requirements of the Monroe County Code or Monroe County Comprehensive Plan. The Resolution also fails to specify any conditions or protective measures that should be met by the applications in regard to design, construction activities or coordination with adjoining land owners to reduce the impacts of the proposed development. No evidence was introduced at the final hearing in this cause to show that the Board of County Commissioners considered these items or any provision for them. An employee of Petitioner was present at the Monroe County Board of County Commissioners meeting on August 5, 1983, when a vote was taken on the McDonald/Allen application. However, Petitioner did not receive a written copy of the Resolution reducing that action to writing until October 14, 1983, when Monroe County transmitted the Resolution by hand-delivery. On August 25, 1983, the State of Florida Department of Environmental Regulation (hereinafter "DER") issued a permit to McDonald/Allen to deposit 433 cubic yards of fill for an access road with four box culverts three feet by eight feet. The permit is based upon Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, jurisdiction and therefore only evaluates impacts on water quality. It does not address impacts on storm surge abatement; marine and wildlife resources habitats; suitability of the proposed project in regard to its location, site characteristics and intended purpose; the effect of the proposed project on surrounding properties (including cumulative impacts of several projects in close proximity of each other); or compliance with the Monroe County Code or Monroe County's Comprehensive Plan. On July 29, 1983, the Zoning Hoard of Monroe County denied the Stage application for special use approval to deposit fill and construct an access road. One of the items considered by the Zoning Board was the permit issued to Respondent Stage by DER on July 13, 1983, to deposit approximately 62 cubic yards of crushed limerock fill for an access road with two 36-inch diameter culverts. The DER permit addressed only impacts to water quality as specified by Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. As was the case with the permit issued to McDonald/Allen, the determination by DER to issue the permit did not include the analysis required by the Monroe County Code and the Monroe County Comprehensive Plan of impacts to natural systems. Reasons cited by the Zoning Board for the application's denial are the project's failure to meet the requirements of the Monroe County Code regarding the Suitability of the use in regard to its location, site characteristics, and intended purpose; and the project's failure to comply with the County's Comprehensive Plan encouraging protection of wetlands to the maximum extent possible and prohibiting new construction that would threaten the stability of dune ridges. On October 28, 1983, the Monroe County Board of County Commissioners reversed the denial of the Stage application for special use approval by adopting Resolution No. 296-1983. Again, there are no protective or limiting conditions specified in the Resolution in regard to construction of the road or its relationship to the remainder of the project. The access road proposed by the McDonald/Allen application will eliminate approximately 4,000 square feet of high-quality submerged mangrove wetlands. This, in turn, would eliminate high-quality habitat used by a variety of large birds such as herons, ibises, little blue herons; gastropods; species of small fish such as killifish, sheepshead minnow, sailfin, mosquito fish; blue crabs, fiddler crabs and Saltwater snakes. The proposed fill road would also present a 325-foot long barrier to the existing tidal flow, thereby impeding the natural flow of water, particularly during a storm event when even very large culverts are blocked by vegetation and other debris. A fill road would also provide a substrate for colonization by exotic vegetation, to the detriment and possible exclusion of native vegetation. In addition, the evidence indicates that at least four more fill roads are proposed in immediate proximity to the proposed McDonald/Allen fill road, within the same 10-acre wetland area. If approved, the cumulative impacts of several roads would be significantly greater than the one road. There would be a significant increase in the direct removal of vegetation and wildlife habitat and an even greater impact on tidal flow through the area with each additional road (even ignoring the fact that each road is merely a portion of the real project). This is because each barrier to tidal flow placed downstream from the source water diminishes the ability of the tidal water to reach other areas even further downstream. The essence of Respondents McDonald/Allen's testimony and exhibits in regard to cumulative impacts is that with proper planning only one access road need be built in the 10-acre wetland area in which the McDonald/Allen property lies. No evidence was submitted to show that such planning efforts exist or are likely to be fruitful. There is no reasonable assurance that only one access road will be sought or constructed in that area; rather, the evidence is to the contrary. Respondent Stage's proposed access road would eliminate a small amount of productive red mangroves and would eliminate transitional wetlands of somewhat lower productivity, thereby exacerbating the existing stresses to the transitional community on the Stage property. The road would also be subject to blockage during a storm event, which would further diminish the existing tidal flow. Current intended use of both the McDonald/Allen and Stage properties is for a single-family residence, although neither applicant has finalized any design for that residence. Construction and occupancy of even a single-family residence in the tropical hardwood hammock on the dune back or dune top of either property can be expected to produce a typical range of impacts to the natural systems. The most significant is the removal of hardwood hammock trees and understory vegetation. At a minimum, clearing is required for a house pad, a turnaround (and parking) area, a septic tank and drain field, and a surrounding area sufficient to accommodate construction equipment and workers. Additional clearing can be anticipated by occupants of a single-family residence who seek to take advantage of ocean breezes and view and who create pathways to the beach. Any opening of the hammock's tree canopy or understory would increase exposure of the lower forest to the drying effects of wind and salt and upset the hammock's microclimate, causing progressive destruction of vegetation. Clearing also provides conditions which make the site conducive to colonization by exotic species. Additional impacts customarily associated with single-family residence occupancy are the introduction of pets who are natural predators of endangered species, of noxious chemicals used for spraying insects, and of intrusion into the habitat of wildlife which now utilize the area and are not tolerant of human activity in immediate nesting and feeding areas. Several dwellings constructed on a dune ridge would cumulatively impact and even further threaten destruction of the hardwood hammock and dune system. Once in place and occupied, a single-family home will create impacts that are extremely difficult to prevent or mitigate and which are uncontrolled by any County ordinance or State regulations. The current and future owners of both the McDonald/Allen and Stage properties have access to that property since either a state-- or county-- maintained road borders one entire side of each of those properties. Accordingly, neither proposed driveway is necessary to provide access to the property. Since the special use approvals given by Monroe County to McDonald/Allen and Stage are not conditioned upon the obtaining of permits for the construction of the now-intended dwelling structure, the actual use of the driveways remains speculative. Although the Stage property may be zoned exclusively for a single-family residence, the McDonald/Allen parcel appears to be in an area of Monroe County in which single-family residences are only one of the uses allowed. Additionally, several years ago Respondent Stage, without first obtaining a permit, has placed fill on his property which covers the width of his property along Long Beach Boulevard. Although Respondent Stage eliminated a wetlands area 100 feet by 75 feet by placing fill therein, he has not been required to remove that fill, and it is speculative as to whether any agency with the authority to require the removal of that fill would do so since no mitigation has yet been required of him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered denying the applications of Respondents McDonald/Allen, Donia, Bobowski, and Stage for special use approval. Pursuant to the requirements of Section 380.08(3), Florida Statutes (1983): There are no changes in the proposal by Respondent Donia that would entitle her to receive the special use approval requested herein; There are no changes in the proposal by Respondent Bobowski that would entitle him to receive the special use approval requested herein; Respondents McDonald and Allen could make their driveway application eligible for a special use approval by altering the design of the driveway to piling or boardwalk construction rather than fill construction; and, Respondent Stage can make his driveway application eligible for a special use approval by altering the project design so that the primary structure utilizes the portion of his property which was previously filled. It is further, RECOMMENDED THAT each application for special use approval submitted herein remain ineligible to receive such approval until such time as it can be demonstrated, such as through the issuance of all necessary permits, that the intended primary use--residential construction--will not degrade or destroy the tropical hardwood hammock, dune ridge, or other natural systems located on or surrounding Respondents' properties. DONE and RECOMMENDED this 8th day of April, 1985 at Tallahassee, Florida. LINDA M. RIGOT 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 8th day of April, 1985. COPIES FURNISHED: Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 John T. Herndon, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301 Sheri Smallwood, Esquire County Attorney, Monroe County 310 Fleming Street Key West, Florida 33040 James Hendrick, Esquire Albury, Morgan & Hendrick 317 Whitehead Street Key West, Florida 33040 Catherine Donia Post Office Box 502 Big Pine Key, Florida 33043 Thomas Bobowski Post Office Box 502 Big Pine Key, Florida 33043 Sarah E. Nall, Esquire C. Laurence Keesey, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Department of Environmental Protection (DEP) has jurisdiction over the activities encompassed by Permit Application BA-475 (Amended) and, if so, whether issuance of the permit complies with the applicable provisions of Section 161.053, Florida Statutes, and Chapter 62B-33, Florida Administrative Code.
Findings Of Fact Undisputed Facts: The following relevant facts are established by stipulation or admission and are not disputed. The proposed project is landward of the seasonal high waterline within thirty (30) years of December 1996; The project will not interfere with public access; The project will not result in the net excavation of in situ sandy soils seaward of the coastal construction control line (CCCL); Any sandy soil or material excavated for the proposed project seaward of the control line will remain seaward of the control line or setback and be placed in the immediate area of construction; The proposed project complies with the structural provisions of Rule 62B-33.007(2), Florida Administrative Code; The proposed project complies with Rules 62B-33.007(3)(a) through (d) and (f) through (h), Florida Administrative Code. Additionally at hearing, the Petitioners and Intervenor announced that they would not present any evidence on the issue of adverse impacts on marine turtles. Accordingly, impacts on marine turtles are not at issue in this proceeding. Project Description: RHE has proposed constructing a restaurant, pool, deck and stormwater basin within the Boardwalk Beach Resort on Panama City Beach, in Bay County, Florida. The Boardwalk Beach Resort consists of four (4) multi-story hotels with six hundred (600) rooms all together, several pools, boardwalks extending the length of the property and approximately seventeen hundred (1,700) to eighteen hundred (1,800) feet of beach front property. The project site is between Thomas Drive to the north and the Gulf of Mexico to the south. On July 23, 1996, RHE applied to the Department for a CCCL permit to construct, seaward of the interim line established by the emergency Order of October 16, 1995, the restaurant, swimming pool and deck. Part of the proposed deck was located seaward of the coastal construction setback line. On December 9, 1996, the Department issued a permit to RHE to construct the restaurant building with an attached deck fifteen (15) feet landward of the location originally proposed by RHE, as well as for construction of the swimming pool. On December 16, 1996, the Department issued to RHE an Amended CCCL permit authorizing construction of a restaurant building located five (5) feet landward of the location originally proposed by RHE, as well as a deck re-designed so that it would be structurally independent of the restaurant, a swimming pool and a dune enhancement plan which would restore the sandy dune seaward of the pool and restaurant location to its pre-hurricane Opal condition and elevation. The Amended permit would require re-vegetation of the dunes at the site with native plants to secure the dunes from erosion. Both the original and the Amended permits authorized the removal of the stormwater drainage pipe that carried stormwater onto the beach that had caused erosion of the beach near the project area. On January 9, 1997, the Petitioners timely filed a Petition challenging the Department’s decision to issue the Amended permit. On February 7, 1997, the Department established a new CCCL line for Bay County that was farther landward than either the old coastal construction setback line or the interim line established in the October 1995 emergency order. The project authorized by the Amended permit would thus be located entirely seaward of the newly established CCCL for Bay County. As of February 7, 1997, the date the new line was established, RHE had not begun working on the foundation or continued construction above the foundation for any of the structures authorized by the Amended permit. The Department determined that the project did not meet the requirements of Section 161.053(9), and Rule 62B-33.004(1), Florida Administrative Code, so as to qualify for an exemption from complying with the newly established CCCL for Bay County, as the project was not “under construction” at the time the new CCCL was established. The beach and dunes system is wide and the dune system is a significant one, with elevations of fourteen (14) to sixteen (16) feet NGVD, with a wide dune crest. The dry sandy beach in front of the site, even after hurricane Opal struck, remained approximately one hundred twenty-five (125) feet wide. From 1855 to 1934 the shoreline of the site was mildly accretional. Thereafter, until 1955 accretion was less significant, but from 1955 to 1976 became significant. From February 1992 through April 1995, the project site experienced a period of mild erosion. Accordingly the long-term data shows, in essence, that the shoreline is relatively stable at the site. Hurricane Opal caused the dune to erode or retreat landward by approximately a distance of fifteen (15) feet. Hurricane Opal was a major magnitude storm with one hundred twenty-five (125) mile per hour sustained winds and one hundred forty-four (144) mile per hour measured gusts when it came ashore in the vicinity of the proposed site. The dune portion of the proposed site now essentially mimics the pre-Opal conditions. Following hurricane Opal the applicants spent approximately Four Hundred Thousand Dollars ($400,000.00) in dune restoration along the entire shoreline of the resort property, some seventeen hundred (1,700) to eighteen hundred (1,800) feet of shoreline. That dune restoration work was permitted by the Department. There is now little native salt-tolerant vegetation on the site in its natural pre-construction condition. An existing stormwater drainage pipe and catch basin extend onto the beach seaward of the location of the proposed restaurant. The existing pipe and basin have caused erosion of the beach and the sand dune system on the project site. Under the amended permit proposal the stormwater pipe and basin would be removed. All of the proposed structures authorized by the Amended permit would be landward of the pre-Opal coastal construction control line. The proposed pool will be located landward of the dune crest and fifty-five (55) feet landward of the toe of the dune. The proposed restaurant would also be located landward of the dune crest and two hundred five (205) feet landward of the mean high waterline. The original design of the project was for a much larger, three story restaurant. The original pool design called for a one hundred twenty foot pool extending from in front of the Comfort Inn to beneath the proposed restaurant, in effect being located on the first floor of the restaurant. At DEP’s request the size of the pool was reduced by fifty percent (50%) and it was relocated into the shadow of the Comfort Inn next door so that it will no longer serve as an integral part of the restaurant. Pool depths were also reduced to three (3) feet at DEP’s request. The pool, at DEP’s request, will now be constructed of Gunnite concrete material and will be frangible, that is, it will be designed to break up in storm-surge or storm-waves. This will serve to decrease the erosion which could be caused by storm-waves flowing over and around the pool structure. The same is true of the restaurant deck, which at DEP’s request has been re-designed to be separate from the restaurant and also designed to fail in storm conditions. The frangibility of the deck, as now proposed, will retard erosion during storm conditions, as the stormwater or waves will demolish the deck and remove it rather than scouring the sand dune around it. The Department also requested that the existing stormwater drain pipe and catch basin be removed and such a removal has been made a condition of the subject permit. This will require that the applicant design and build a new stormwater system. The applicant has agreed to this condition and the others referenced above. Vegetation: Construction of the proposed project will not result in the removal or destruction of native vegetation. There is no such vegetation on the site where the construction will take place. Thus, construction of the project will not result in removal or destruction of native vegetation which will either cause de-stabilization of a "frontal, primary or significant dune" or cause a significant adverse impact to the beach and dune system due to increased erosion by wind or water. A special condition of the proposed amended permit requires that the applicant submit a dune enhancement plan for restoration of the dunes seaward of the pool and restaurant to its pre-hurricane Opal condition, including re-vegetation. Such a plan was submitted by the applicant and it includes the planting of sea oats on one (1) foot centers. The planting of sea oats as part of the dune enhancement plan will constitute a significant improvement to the native vegetation situation at the site. Disturbance of Sandy Soils: The project will not result in the removal or disturbance of in situ sandy soils of the beach and dunes system to such a degree as to have an adverse impact on the system. That is, the existing ability of the system to resist erosion during a storm will not be reduced. The proposed project will not result in the removal or disturbance of in situ sandy soils of the beach and dune system to such a degree as to cause adverse impact to those systems by lowering existing levels of storm protection to upland properties and structures. All the sandy material excavated for the pool and the stormwater basin will be placed seaward of these structures on the dune in the immediate area of the construction and seaward of the CCCL. The additional sand to be placed on the dune as part of the dune enhancement plan will, in fact, enhance the ability of the system to resist erosion during the storm. The ability of the dune to resist storm erosion is primarily a function of the quantity of sand within the dune system. The additional sand to be placed on the dune as part of the dune enhancement plan will enhance the protection of upland properties and structures including those of the Petitioners and Intervenor. Excavation of the stormwater basin will not destabilize the dune on the project site. The applicant is moving the stormwater basin landward by twenty (20) feet which will minimize the potential impacts of the basin on the dune system. The preponderant evidence establishes that the structure of the pool and pool deck will not cause an increase in structure-induced scour of such a magnitude as to measurably affect shoreline change rates. Scour caused by the pool will not significantly interfere with the beach-dune system's ability to recover from a coastal storm. The frangible design of the pool decreases the likelihood that it will cause any scour. It will break up in a storm so that any scour caused by the pool would be minimal. Any scour caused by the pool would not disturb the topography or vegetation such that the coastal system would become unstable or suffer catastrophic failure. Scour would have no measurable effect. The proposed restaurant and deck will not cause an increase in structure-induced scouring during a storm of such a magnitude as to have a significant adverse impact. The restaurant and deck will be constructed on piles. Scouring around piles, in a storm situation, is very localized and insignificant. By constructing the restaurant and deck on piles at the design elevation, storm-surge and storm-waves will pass under the deck and restaurant. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune to permit natural shoreline fluctuations. The structures will be built on pilings and will be elevated above the storm-surge; thus they will not interfere with shoreline fluctuations. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to preserve and protect beach and dune system stability, in terms of the lack of interference with such. Other structures in the area are seaward of the proposed restaurant and deck, including Pineapple Willies Restaurant, located eleven hundred feet to the west. Those structures have not caused instability of the beach during hurricane Opal. Typically, existing structures do not cause instability of the dune systems. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to allow for natural recovery to occur following storm-induced erosion. Natural recovery commonly occurs under pile-supported elevated structures which is not the case with “slab-on-grade” structures which are not elevated. The pool and pool deck will permit natural shoreline fluctuations, will preserve and protect beach and dune stability, and will allow recovery after a storm because they are designed as frangible structures that will fail and disintegrate in a storm situation. Thus they will not appreciably affect the beach-dune system. Line of Construction: Most coastal construction in Bay County extends out to the pre-Opal CCCL while some construction extends beyond it. Throughout Bay County the line of construction is the pre-Opal CCCL. The line of construction is determined by the most seaward extent of similar existing structures in the immediate area of the proposed structure under consideration in a CCCL permit application. The proposed pool is landward of the line of construction determined by existing pools within the boardwalk beach resort. There are a number of existing multi-story structures to the east of the proposed restaurant that are located out to the pre-Opal CCCL. That pattern of construction continues to the east of the proposed restaurant. Approximately one thousand (1,000) feet to the east of the proposed restaurant is an existing multi-story major structure that is built out to the pre-Opal CCCL. The beach in the area of the project is highly developed with commercial and condominium buildings. Within eleven hundred to twelve hundred feet to the west of the proposed restaurant there is another major structure built out to the pre-Opal CCCL. Just beyond that structure are a number of additional major structures, including Pineapple Willie's Restaurant, that are constructed out to the pre-Opal CCCL. The multi-story major structures to the east and west of the proposed structure are within the immediate area of the restaurant. The proposed restaurant is located landward of the line of construction established by these major structures within its immediate area. That line of construction is the pre-Opal CCCL. DEP did not consider major structures more than one thousand (1,000) feet from the proposed restaurant when it determined the line of construction for the restaurant. It is DEP’s policy when reviewing CCCL applications not to consider structures more than one thousand (1,000) feet from a proposed structure when determining the line of construction. The one thousand (1,000) foot limit DEP uses to determine the line of construction is not embodied in a rule. There was no preponderant coastal engineering or other scientific evidence which justifies the one thousand (1,000) foot limit DEP imposes when it determines the line of construction. It was appropriate to consider the existing structures referenced above in assessing the line of construction for this amended permit application and considering those lying just beyond the one thousand (1,000) foot distance, because those existing structures dominate the coastal processees in the region and only lie just beyond one thousand (1,000) feet to the east and twelve hundred (1,200) feet to the west. If the Department had considered the above-referenced existing major structures just beyond one thousand (1,000) feet of the proposed restaurant, it would have been shown that the proposed project was landward of the thus established line of construction. No preponderant evidence was offered to explicate why the one thousand (1,000) foot limit was automatically adhered to in this situation. Moreover, the line of construction is not a prohibition in and of itself but rather is only one of several criteria that must be balanced in determining whether or not to approve a CCCL permit application. Projects have been approved seaward of the line of construction in the past. Minimization The location of the swimming pool at the most practicable landward location, the reduced size of the pool, as well as its frangible design and limited depth, has minimized its impact. The placing of the excavated material in the pool’s immediate area and the restoration of the dune in front of the pool and deck have minimized the impacts of the pool and deck. The construction of the restaurant on pilings with its design elevation above storm-surge and storm-wave elevations, together with locating it behind the dune crest and away from the active beach, has minimized the impact of the restaurant. The deck is on pilings as well, elevated above storm-surge and storm-wave levels. It will be physically separate from the restaurant and its design frangibility (so that it will fail in a storm) results in its impact being minimized. The stormwater basin is located as far landward as practicable. Its location and the placing of the materials excavated for the basin on the dune immediately adjacent to the basin has minimized the impact of the proposed stormwater basin on the beach-dune system. The restaurant, pool, deck, and stormwater system will not have a significant adverse impact to the beach-dune system. The restaurant will not adversely affect exiting shoreline change rates, will not significantly interfere with recovery following a storm, and will not disturb topography or vegetation such that the system will become unstable or suffer catastrophic failure. Cumulative Impacts The proposed project will not have an unacceptable cumulative impact. There are no other proposed similar projects to take into account and a cumulative impact assessment has shown there to be no adverse cumulative impact. No evidence was offered to show that an unacceptable adverse cumulative impact in terms of existing or other proposed projects will result. Positive Benefit The proposed project will have a net positive benefit on the beach-dune system. The removal of the slab-on-grade constructed building will have a beneficial impact because it will reduce the chance of storm erosion to the beach-dune system posed by such structures. The existing stormwater pipe and catch basin which cause erosion would be removed, resolving that erosion problem. Stormwater will now be retained in a new stormwater basin designed to serve 1.7 acres and it will not flow onto the beach for any rainfall event up to a one hundred year design storm. The new stormwater system is designed to recover quickly after a storm event and to treat stormwater. The removal of the stormwater pipe and catch basin, and the installation of the new stormwater basin will have a positive benefit to the beach-dune system. The new stormwater system complies with Special Permit Condition 7. Moreover the applicant will restore the dune seaward of the project to its pre-hurricane Opal condition and will plant sea oats, on one foot centers, throughout the restoration area in accordance with Special Permit Condition 1.8. Such restoration of the dune and vegetation will benefit the beach-dune system. The natural recovery process will take several decades without the placement of sand in the dune restoration project. The dune enhancement plan submitted by the applicant, in order to comply with Special Permit Condition 1.8, exceeds the requirements of that condition since it places more sand on the dunes than necessary to achieve pre-Opal conditions. Testimony of expert witness Michael Walhter, which is accepted, establishes that restored beaches and dunes function much like natural ones in storm events even though they can be somewhat inferior in resistance to storm-surge and waves since the sand is not as compacted at first. This dune enhancement plan, however, exceeds the permit requirements by placing more sand than necessary on the dunes to achieve pre-Opal conditions. The Interim CCCL On October 16, 1995, the DEP issued its emergency Order establishing an interim CCCL for Bay County one hundred feet landward of the pre-Opal CCCL. The Department established that interim line in order to regulate coastal development in the wake of Hurricane Opal. In 1978 the Legislature established criteria to be used by DEP in establishing or re-establishing all CCCL’s. They are thus to be established to define that portion of a beach-dune system subject to severe fluctuations from a one hundred year storm event. At the time of Hurricane Opal, DEP had not re-established the Bay County CCCL using a one hundred year storm event criterion. The interim CCCL for Bay County established by the above-referenced emergency Order did not utilize nor was it based on the statutory one hundred year storm event criterion. All twenty-three (23) other CCCL’s that have been established based on the statutory one hundred year storm event criterion were established by rule. As of January 15, 1997, the applicant had received all governmental approvals necessary to begin construction of the proposed project except for that which is the subject of this proceeding. On January 22, 1997, DEP by letter advised the applicant to cease and desist construction of the project. On February 7, 1997, the Department by rule then taking effect established a new CCCL.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, DETERMINED: That the Department of Environmental Protection has jurisdiction over the proposed project and that it is, therefore, recommended that a Final Order be entered granting the Respondent, Resort Hospitality’s CCCL application consistent with the terms and conditions espoused by the Final Order of December 17, 1997, Respondent’s Exhibit 2 and the project plans depicted in Respondent’s Exhibits 3 and 4. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Bram D. Canter, Esquire 103 North Meridian Street Tallahassee, Florida 32301 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire 1315 East Lafayette Street, Suite B Tallahassee, Florida 32301 Neil H. Butler, Esquire Butler and Long, P.A. Post Office Box 839 Tallahassee, Florida 32302-0839 Kathy Carter, Agency Clerk Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue At issue in this proceeding is whether Respondents Daniel and Donna Grace; Joseph and Linda Oftell; Paul and Debra Linger; Ann Pastore; Thompson and Dana Fillmer; Joseph and Dottie Scruggs; Stephen Frey; and Lindsey Bramlitt and Jacqueline Porter, Trustees of the Land Trust dated May 1, 2005 (collectively referenced herein as "Applicants") qualify for an exemption from the requirements of coastal construction control line ("CCCL") permitting pursuant to section 161.053(11)(b), Florida Statutes, for their proposed activities in regard to a dune walkover structure seaward of the CCCL at the end of Milliken Lane in St. Johns County, as provided in the Amended Exemption Determination issued by the Department of Environmental Protection ("Department") on September 8, 2011.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, the following findings of fact are made: The proposed project site is located at the seaward end of Milliken Lane, in the development known as "Milliken's Replat," in Crescent Beach, Florida. The development consists of 10 lots between State Road A1A and the Atlantic Ocean. The privately maintained Milliken Lane runs west to east, perpendicular to A1A. Milliken Lane bisects the 10 lots, i.e., five lots are on each side of the lane. Lots 1 through 5 are on the north side of Milliken Lane, and Lots 6 through 10 are on the south side. Lots 5 and 6 are the largest lots and are the lots nearest the ocean. Petitioner Anastasia, Inc., owns Lot 5 and Petitioner Amanda Pope owns Lot 6. The sole officer and shareholder of Anastasia, Inc., is Kenneth Pfrengle. The remaining eight lots are owned by Applicants, as follows: Steven Frey owns Lot 1; Daniel and Donna Grace own Lot 2; Paul and Debra Linger own Lot 3; Ann Pastore owns Lot 4; Lindsey Bramlitt and Jacqueline Porter, Trustees of the Land Trust dated May 1, 2005, own Lot 7; Joseph and Linda Noftell own Lot 8; Joseph and Dottie Scruggs own Lot 9; and Thompson and Dana Filmer own Lot 10. Milliken's Replat was duly recorded on October 11, 1983, in the Public Records of St. Johns County, Florida, Map Book 15, Page 100. The Milliken's Replat graphic representation of the development shows a line between Lots 5 and 6 and indicates that it is a "6' WIDTH WALKWAY FOR WALKWAY TO BEACH." The indicated walkway begins at the end of Milliken Lane and extends at least to the CCCL.2/ The walkway straddles Lots 5 and 6, the two lots owned by Petitioners. Milliken's Replat is also subject to a Road Maintenance Agreement recorded by the original developers on January 28, 1994, in the Public Records of St. Johns County, O.R. 1034, Page 1596. The Road Maintenance Agreement provides for the continuing maintenance of Milliken Lane and "That certain six foot wide walkway reflected on the plat running between the cul-de-sac at the end of Milliken Lane to the Atlantic Ocean, including existing dunes walk-over structure." The Road Maintenance Agreement goes on to provide as follows, in relevant part: Such road and walkway shall be maintained by the parties to this agreement, their heirs, successors and assigns in a condition so as to make it free and passable in perpetuity. The costs of the maintenance of said road and walkway shall be shared to the end that each lot owner shall pay one-tenth of the cost associated with maintenance costs. Owners of multiple lots shall be responsible for one-tenth of the cost for each lot owned. * * * 5. In the event that sixty percent of the lot owners determine that maintenance work is necessary and contract to complete same, they shall have the right to maintain a lien against any lot owner who refuses to pay the assessment pursuant to the provisions of this agreement. Unless waived, each lot owner shall be given a minimum of ten (10) days' written notice of the proposed meeting to determine assessments.... Petitioners purchased their respective lots subject to the terms of Milliken's Replat and the Road Maintenance Agreement. On March 11, 2011, Applicant Dan Grace sent a notice to the "Property Owners of Milliken Lane" stating that a meeting to discuss the maintenance of Milliken Lane would take place on March 24, 2011, pursuant to paragraph 5 of the Road Maintenance Agreement. The notice went on to state that the walkover "is in need of maintenance to maintain and preserve the integrity of the existing walkover," and that a proposal for the cost of repair would be presented at the meeting. Finally, the notice stated that a vote on the proposal would be taken at the meeting. Mr. Grace contacted Rick Powell, owner of Barefoot Marine Construction, to provide a quote for the repair and maintenance of the dune walkover. Mr. Powell visited the site, took measurements, and provided a quote to Mr. Grace prior to the March 24, 2011, meeting. On March 22, 2011, Daniel Mowrey, counsel for Applicants, had a telephone conversation with West Gregory, an attorney in the Department's office of general counsel, regarding the proposed repair and maintenance to the dune walkover. The next day, Mr. Mowrey followed up with a letter to Mr. Gregory that included copies of Milliken's Replat and the Road Maintenance Agreement. The Applicants' chief concern was Mr. Pfrengle's contention that the repair of the walkover was subject to his consent as the owner of the property on which the walkover sits. Mr. Mowrey stated his clients' position as follows: I believe the Department has taken the position this matter has to do with Title and/or Ownership to the property whereon easement lies. This matter is clearly not about ownership. The fact the easement lays on the property of Mr. Pfrengle and Amanda Pope is not a matter of contention. There is no authority I can find that forces the Department to obtain permission from Mr. Pfrengle or Ms. Pope to issue this permit. The Road Maintenance Agreement controls and is clear as to the rights of all owners in the Milliken Replat. Denial of a permit from the Department to maintain, repair and/or replace the existing walkover is unreasonable. All members of the Milliken Replat have sufficient title interest through the easement and Road Maintenance Agreement to make application based on recorded rights. It appears the Department has made the interpretation of title interest as meaning right of possession. This is clearly flawed. I am fully aware that this matter may end up in Circuit Court to resolve this dispute. I want to be clear in my representation of my clients. If the Department is going to deny this request for a permit, I would like to know the legal justification for doing so. The recorded documents are clear and speak for themselves. While Mr. Pfrengle may not want the walkover replaced, he agreed to the provisions of the easement and Road Maintenance Agreement when he purchased his home as shown on the recorded instruments. If my clients are required to fill out a formal written request for a permit, please notify me and provide the proper documentation for that request. . . . The owners' meeting was held on March 24, 2011, pursuant to the March 11 notice. All of the Applicants voted in favor of the repairs and maintenance to the dune walkover,3/ making an eighty percent majority for the work to proceed. Petitioners did not attend the meeting. Also on March 24, 2011, Mr. Gregory sent an email to Mr. Mowrey that read as follows, in relevant part: After discussing this matter with the Department's permit processor and Mr. Mowrey, it appears your proposed activity may be eligible for an exemption. If you would like to pursue an exemption determination, please send a letter requesting the exemption to the Bureau. The items to include in the request are listed in 62B-33.008(11). . . . Late on the afternoon of March 24, 2011, Mr. Mowrey on behalf of his clients emailed a written request for an exemption from the CCCL permit requirements to David Kriger, permit manager for the Bureau. On March 30, 2011, the Department issued the Exemption Notice quoted in the Preliminary Statement, supra. On April 14, 2011, Rick Powell of Barefoot Marine Construction provided a verbal description of the walkover project to Fritz Wettstein, environmental manager of the CCCL program. The project plans included the use of "sister" posts directly abutting and fastened to the existing posts to support the repaired structure. Robert Morgan, a licensed professional engineer whose company worked on the project for Barefoot Marine, testified that the timber in the existing walkover was old, possibly warped, and did not provide a pure nailing surface. However, the impact on the dune topography of pulling out the old posts for replacement would have been "tremendous." "Sistering" the new posts to the old ones would provide the needed support while minimizing environmental impact. On April 23, 2011, Mr. Morgan's company, RGM Engineering, Inc., provided the Applicants with two sets of structural drawings/engineering plans for the dune walkover, one of which was accepted and ultimately built. The plan that was built was designed and measured to be an exact duplicate of the existing walkover in all dimensions. The second plan would have lowered the rebuilt walkway, making it less visually obtrusive to Mr. Pfrengle and Ms. Pope. On September 8, 2011, the Department issued the Amended Exemption Determination quoted in the Preliminary Statement, supra. Based on Mr. Powell's project description, the Department determined that the project was exempt pursuant to section 161.053(11)(b), Florida Statutes. On September 16, 2011, Bureau field inspector Trey Hatch conducted a site inspection of the proposed construction area and beach dune system. Mr. Hatch's written inspection report stated that the existing walkover, "located within a 6' easement area used by local neighborhood," appeared to be in need of repair or replacement due to the age of the wood and support hardware. Mr. Powell testified that his company waited 21 days after the issuance of the Amended Exemption Determination before commencing work on the walkover. Mr. Powell's company performed all the work. The digging of postholes was done by hand, without the use of machines. Only two workers were on the ground at a time, and only those materials immediately required were carried to the walkover. Materials were passed up and down to the workers on the structure to minimize disturbance to the dune system. Mr. Morgan testified that the new posts were placed about five feet into the ground, to the depth of the old posts. Nearly every old post was sistered to a new post, and most of the walkover's structure was replaced. Mr. Morgan stated that the repaired walkway had a slightly larger east-west footprint due to the sistered posts, but that the north-south footprint was exactly the same as that of the old walkover. As noted above, the Department's Amended Exemption Determination found the Applicants' project exempt pursuant to section 161.053(11)(b), which provides: Activities seaward of the coastal construction control line which are determined by the department not to cause a measurable interference with the natural functioning of the coastal system are exempt from the requirements of subsection (4).4 Florida Administrative Code Rule 62B-33.008 implements section 161.053. Subsection (11) of the rule provides specificity to the exemption provided by section 161.053(11)(b) as follows: Requests for the Department to determine that the proposed activity is exempt from permitting pursuant to the provisions of Section 161.053(11)(b), F.S., shall include, at a minimum, a survey meeting the requirements of Rule 62B-33.0081, F.A.C., and the information requirements of paragraphs 62B-33.008(3)(l), (m), (n), (p), (r), and subsection 62B-33.008(5), F.A.C. The Department recognizes that the requirements specified above may not be necessary to make an exemption determination. In such cases, the applicant shall, as part of the request for exemption, identify those requirements and state the reason why they are inapplicable. The Department shall waive requirements that do not apply. The "information requirements" of rule 62B-33.008 referenced in the quoted portion of the rule are as follows, in relevant part: (3) Any person desiring to obtain a permit for construction seaward of the coastal construction control line (CCCL) or 50-foot setback from the Department. . . shall submit two (2) copies of a completed application form to the Bureau . . . The application shall contain the following specific information: * * * Two copies of a dimensioned site plan. The drawings shall be signed and sealed by an architect, engineer, landscape architect, or professional surveyor and mapper (as appropriate) licensed in the state of Florida. The site plan shall include: The locations and exterior dimensions of all proposed structures, including foundations and other activities, and the bearings and distances from the CCCL or 50- foot setback to the seaward corners of the foundations of any major structures or the seaward limit of any coastal or shore- protection structure. Dimensions and locations of the foundation outlines of any existing structures on adjacent properties and distances from the CCCL or 50-foot setback to the seaward corners of the foundations of any existing structures or the seaward limit of any coastal or shore-protection structure. These measurements shall include all structures that the applicant contends have established a reasonably continuous and uniform construction line for permits requested under the provisions of sections 161.052(2)(b) or 161.053(5)(b), F.S. Dimensions and locations of the foundation outlines of any existing structures on the subject property and distances from the CCCL or 50-foot setback to the seaward corners of the foundations of any major structures or the seaward limit of any coastal or shore-protection structure. The horizontal location of the erosion control line (if one exists), any contour lines corresponding to elevation 0.00, the approximate contour of mean high water and the seasonal high water, and the horizontal location of the seaward line of vegetation and outlines of existing natural vegetation. The horizontal location of the CCCL or the 50-foot setback (if no CCCL is established for the county in which the property is located) for the full width of the subject property, including the location and full stamping of the two nearest Department or published second order or higher horizontal control points. The location and dimensions of the property boundary, rights of way, and easements, if any. The property owner and project name, street address, scale, north arrow, sheet number, and date of drawings. The location of work limits, construction fences, and dune features and vegetation to be protected during construction. Two copies of a dimensioned grading plan. The drawings shall be signed and sealed by an architect, engineer, landscape architect, or professional surveyor and mapper (as appropriate) licensed in the State of Florida. The grading plan shall include: Existing and proposed elevations, contours and spot elevations. For any proposed excavation or fill: A table of all permanent, temporary, and net excavation and fill volumes seaward of the CCCL; The storage locations and description of handling methods for all temporary excavation and fill material; and Soil and geotechnical data for beach compatible imported or excavated material proposed for placement on the beach seaward of a frontal dune or on the sandy beach. Two copies of dimensioned cross- sections. The drawings shall be signed and sealed by an architect, engineer, landscape architect, or professional surveyor and mapper (as appropriate) licensed in the State of Florida. The cross-sections shall include a typical view from the mean high water line to the CCCL depicting all structures and building elevations, proposed and existing grades, subgrade construction, excavation, fill, and elevations for any proposed or existing rigid coastal structures. * * * (p) Details, including engineering design computations, for any proposed waste or storm water discharge onto, over, under, or across the beach and dune system, such as storm water runoff, swimming pool drainage, well discharge, domestic waste systems, or outfalls. . . (r) Two copies of detailed planting plans, including the location of proposed plants, existing native vegetation, and plants to be removed. Plans shall include a plant list with both scientific and common names. * * * (5) The staff shall require the applicant to provide other site specific information or calculations as is necessary for proper evaluation of the application. The dimensions for the plans referenced in this section shall be submitted in U.S. Customary System units. Structures shall be located with distances measured perpendicular to the control line, 50-foot setback line, or the mean high water line, as appropriate. All elevations in this rule shall be referenced to NAVD 88 (U.S. survey foot). Site, grading, drainage, and landscape plans as well as cross-sections shall be drawn to a scale no smaller than 1'' = 40' in the horizontal dimension. Mr. Morgan testified that a survey was not required for this project because the plan was simply to replace an existing walkover that was already on the ground. The existing footprint would be maintained during construction. Mr. Morgan testified that because the project was being undertaken within the confines of an existing structure, there was also no need for a dimensioned site plan or a dimensioned grading plan. Mr. Morgan testified that it was necessary to provide dimensioned cross-sections to ensure that the renovated walkover conformed exactly to the dimensions of the existing walkover. Those cross-sections were provided to the Department. Mr. Morgan testified that it was not necessary to provide details, including engineering design computations, for any proposed waste or storm water discharge onto or over the beach and dune system because no impervious surface was being added. Mr. Morgan testified that it was not necessary to submit planting plans because the dunes were not being disturbed. Mr. Morgan testified that no other site-specific information or calculations were necessary for the exemption application "because it was all straightforward. There again, it's an existing structure." Tony McNeal, the administrator of the CCCL program, testified as an expert in coastal engineering. Mr. McNeal also addressed the criteria for obtaining an exemption pursuant to rule 62B-33.008(11), and concluded that none of the items listed in subsection (11) were necessary for the Department to determine that the project would not cause a measureable interference with the natural functioning of the coastal system. Petitioners offered no evidence that the requirements of rule 62B-33.0081, paragraphs 62B-33.008(3)(l), (m), (n), (p), (r), or subsection 62B-33.008(5) were necessary to make an exemption determination pursuant to section 161.053(11)(b). The evidence demonstrated that the Applicants identified which of those requirements were inapplicable and why, and that the Department waived the inapplicable requirements. The unchallenged testimony of Mr. Morgan and Mr. McNeal established that the proposed project would not cause a measurable interference with the natural functioning of the coastal system, and that the criteria for the grant of an exemption from the CCCL permitting requirements were met in this instance. However, the finding that the proposed project would meet the exemption criteria of section 161.053(11)(b) does not end the inquiry. Petitioners contend that Applicants' project is simply not the kind of project to which the section 161.053(11)(b) exemption provision is intended to apply. Rather, this project was of the type contemplated by section 161.053(11)(a), which provides in relevant part: The coastal construction control requirements defined in subsection (1) and the requirements of the erosion projections in subsection (5) do not apply to any modification, maintenance, or repair of any existing structure within the limits of the existing foundation which does not require, involve, or include any additions to, or repair or modification of, the existing foundation of that structure.... Petitioners contend that because it included "additions to, or repair or modification of" the walkover foundation, the project should have been required to seek a CCCL permit. Petitioners argue that the project as a whole constituted a replacement of the existing walkover, not merely repairs and maintenance. As such, it was not the type of activity that the Department should have considered for exemption under section 161.053(11)(b). Petitioners offered documentation from the Department's files indicating that no beach walkovers have been granted exemptions from the need to obtain at least a field permit.5/ Trey Hatch, a senior field inspector for the Bureau, testified that he has never issued an exemption for a dune walkover. He stated that he issues "quite a few" field permits for walkover structures. These include permits for new walkovers, additions, and repair and rebuilding. Mr. Hatch stated that aboveground repairs to walkovers typically do not require permits. He testified that he has issued field permits for such repairs in order to assist homeowners in obtaining building permits from local authorities. However, foundation modification such as digging holes, replacing posts or modifying the structure outside its existing dimensions would require a permit. Mr. McNeal testified that the Department regularly issues permits for dune walkovers and has issued more than a thousand such permits over the years. To his knowledge, the Department has never granted an exemption under section 161.053(11)(b) for a walkover structure prior to the instant case. Despite this lack of precedent, Mr. McNeal, who has been the administrator in charge of the CCCL program since 1998, expressed confidence that a permit was not required for this project because the proposed activity would not cause a measurable interference with the natural functioning of the coastal system. Petitioners contend that the walkover was not "repaired" nor was it the subject of "maintenance." They assert that the walkover was replaced from the foundation up, and that such replacement makes the Applicants' project ineligible for exemption. Petitioners state that digging and setting of new posts constituted modification of the foundation that required a permit under section 161.053(11)(a). The Department replies that the exemption was not granted pursuant to section 161.053(11)(a) but under the standard set forth in section 161.053(11)(b). Therefore, Petitioners contentions regarding the repair or replacement of the walkover's foundation are irrelevant. In similar fashion, the Department dismisses Petitioner's contention that the sistered posts violated Florida Administrative Code rule 62B-34.050(19)(b), which provides: Elevated walkovers that provide access to the beach shall meet the following design criteria: * * * (b) The piles for the walkover structure shall not be greater that [sic] four by four inch posts and shall not be encased in concrete. Petitioners point out that by sistering the new four- by-four posts to the existing four-by-four posts, Applicants have created piles for the walkover structure that are now four inches by eight inches, in excess of the maximum allowed by the quoted rule. However, the Department points out that the quoted rule sets forth the conditions for general permits for activities seaward of the CCCL, in particular for a new dune walkover structure. As such, the rule is irrelevant to a consideration of whether the repairs to the already existing walkover meet the specific criteria for an exemption pursuant to section 161.053(11)(b) and rule 62B-33.008(11). Petitioners argue that a form of estoppel should apply to the Department's grant of an exemption in this case because of prior Department actions regarding the same walkover. In 2005, one of the Applicants in the instant case, Paul Linger, obtained a field permit to repair the stairs on the walkover and to install a cantilevered bench seat. Controversy ensued when both Ms. Pope and Mr. Pfrengle objected and insisted on removal of the bench seat. The Department ultimately decided that Mr. Linger had installed the bench seat farther seaward than the permit allowed, and that the seat extended beyond the easement onto Ms. Pope's property. Ms. Pope also raised the question whether Mr. Linger had the authority to obtain the permit without her permission. Jim Martinello, an environmental manager with the Bureau, wrote as follows in a letter to Timothy J. Perry, counsel for Ms. Pope, in a letter dated March 25, 2008: In Mr. Perry's letter dated March 17, 2008, he has advised Department staff that his client, Amanda Pope, would be amenable to remove the cantilevered seating area from her property. Pursuant to section 161.053(12)(c)(6), Florida Statutes,6/ the removal of any existing structures or debris from the upland, provided there is no excavation or disturbance to the existing topography or beach/dune vegetation is exempt from the Department's permitting requirements. The installation of the handrail would also be considered an exempt activity; however, be advised that if Ms. Pope proposes to install a wooden post into the ground, then the activity would no longer be exempt and a Department permit would be required. If, after removal of the cantilevered seating area and placement of the handrail, no additional compliance issues are identified by staff, the file on this matter will be closed. Since the subject dune walkover is within an easement, any future reconstruction or repairs to the subject dune walkover must be authorized with an administrative Coastal Construction Control Line permit. A Department field permit will not be available for any future proposed activities regarding the subject structure. (emphasis added). In a follow-up letter dated June 19, 2008, noting that the bench seat had been removed and the Department's file on the matter had been closed, Mr. Martinello reiterated: As previously stated, since the subject dune walkover is within an easement, any future reconstruction or repairs to the subject dune walkover must be authorized with an administrative Coastal Construction Control Line permit. A Department field permit will not be available for any future proposed activities regarding the subject structure. With reason, Petitioners question why the Department's representative cautioned Ms. Pope that the installation of a single wooden post would trigger the need to obtain a permit from the Department, but three years later the Department determined that the installation of more than 30 posts on the same walkover was exempt from permitting. The letters clearly state that any future reconstruction or repairs to this dune walkover would require an administrative CCCL permit rather than a mere field permit. However, three years later, no permit whatever was required for an extensive renovation of the same walkover. At the hearing, Mr. Marintello testified that the intent of his language regarding the need for a permit was "informational." He wanted to advise the parties that they could not obtain a field permit for reconstruction because the walkover was within an easement. Mr. Martinello stated that the Department had previously decided that it would be better to use the administrative CCCL permitting process where an easement was involved. The greater scrutiny of that process would insure that the applicant is eligible to obtain the permit. Mr. Martinello stated that he defers to the opinion of Mr. McNeal and the Bureau permitting staff as to whether an activity qualifies for an exemption. He testified that he had no intent for his letter to preclude anyone from ever obtaining an exemption to perform work on the walkover, and that in any event he lacked the authority to make such a conclusive pronouncement. The Department and Applicants strenuously argued that any evidence not strictly addressing the criteria for exemption under section 161.053(11)(b) is irrelevant to this proceeding. In so arguing, they seek to avoid the threshold question of whether section 161.053(11)(b) is the applicable provision for repair or replacement of an existing structure such as a dune walkover. The testimony and the statute itself lead to the finding that the specific provisions of section 161.053(11)(a), not the general exemption language of section 161.053(11)(b), should have been applied to the "modification, maintenance, or repair" of this existing structure. When Mr. Morgan testified to justify the lack of need for various items listed in rule 62B-33.008(11), he did so in terms of section 161.053(11)(a): it was unnecessary to provide a ground survey, dimensioned site plan, dimensioned grading plan, or other site specific information or calculations because the project was staying within the confines of the existing structure. The Department's own personnel made it clear that their long practice has been to apply section 161.053(11)(a) to alterations of dune walkovers. Mr. Hatch testified that he has never issued an exemption for a dune walkover, and that his common practice is to issue field permits for dune walkovers. In his experience, aboveground repairs to walkovers are exempt and foundation modifications require a permit. Mr. Hatch was obviously referencing section 161.053(11)(a) in stating these criteria. Mr. Martinello's letters cautioning Ms. Pope not to install a wooden post in the ground were plainly premised on the section 161.053(11)(a) limitation on changes to the foundation. Mr. Martinello's testimony regarding his intent in writing the letters was an unconvincing attempt to revise his views to reflect the Department's new interpretation of the statute. The Department's own expert, the head of its CCCL permitting program, Mr. McNeal, conceded the novelty of granting a section 161.053(11)(b) exemption for a dune walkover. He could point to over one thousand walkover permits but not a single walkover exemption during his long tenure at the Bureau. In summary, the Department misapplied the general exemption criteria in section 161.053(11)(b) to a situation that met the more specific criteria of section 161.053(11)(a). Applicants should have been required to obtain either a permit pursuant to section 161.053(11)(a) or a Department determination that such a permit is not required because of the nature of the work performed on the walkover. Finally, Petitioners raised the issue of whether Applicants had the authority to obtain an exemption from the Department. Petitioners contended that neither Millken's Replat nor the Road Maintenance Agreement authorized Applicants to effect repairs on the walkover without express permission of the property owners, Ms. Pope and Anastasia, Inc. The Department argued that it has no obligation to investigate ownership rights prior to issuing an exemption. Based on the foregoing finding that the exemption was improvidently granted, there is no need to address this issue at this time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Daniel and Donna Grace; Joseph and Linda Oftell; Paul and Debra Linger; Ann Pastore; Thompson and Dana Fillmer; Joseph and Dottie Scruggs; Stephen Frey; and Lindsey Bramlitt and Jacqueline Porter, Trustees of the Land Trust dated May 1, 2005, for an exemption from the requirements of coastal construction control line ("CCCL") permitting pursuant to section 161.053(11)(b), Florida Statutes, for their proposed activities on a dune walkover structure seaward of the coastal construction control line at the end of Milliken Lane in St. Johns County. DONE AND ENTERED this 5th day of October, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 5th day of October, 2012.
Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
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
The Issue The issue to be determined in this case is whether Respondent Steven Hanson is entitled to a coastal construction control line ("CCCL") permit to construct a single-family residence and associated structures seaward of the CCCL on Anna Maria Island, Manatee County, Florida.
Findings Of Fact The Parties Respondent Hanson owns an undeveloped lot located at 107 Elm Avenue in Anna Maria, Florida ("the project site"), upon which he proposes to construct a residence and related structures that are authorized by the CCCL permit challenged by Petitioners. Petitioners Ronnie E. and Pamela Young own a single- family residence at 110 Pine Avenue in Anna Maria. The Young property is about 60 feet landward of the project site. Blanton Homestead, LLC, owns a single-family residence at 109 Elm Avenue in Anna Maria, which is contiguous to the Hanson Property. Blanton entered into a settlement agreement with Hanson and withdrew its petition and opposition to the CCCL permit. The Department is the agency responsible for regulating construction activities seaward of the CCCL pursuant to Part I of Chapter 161, Florida Statutes, and Florida Administrative Code Rule 62B-33. The Project Site The project site is seaward of the CCCL established in accordance with Section 161.053, Florida Statutes. The shoreline in this area has experienced relatively large fluctuations. It is included in the State's Strategic Beach Management Plan, which means that it has been prioritized for beach restoration. This area was included in a 2002 beach nourishment project. In the eight years since the nourishment, the project has "performed" well and the shoreline in front of the project site has accreted since the completion of the nourishment project. The shoreline is now 331 feet more seaward than its position in 1998. A permit was issued in July 2010 for a renourishment project in this area. The project site is approximately 350 feet landward of the mean high water line of the Gulf of Mexico. The project site is densely vegetated and includes sea grapes and sea oats. One or two active gopher tortoise burrows may exist on the project site. On each side of the project site are platted road rights-of-way that run perpendicular to the shoreline. On the northwest side of the project site is Elm Avenue, a 50-foot-wide public asphalt street, at the seaward end of which is a wooden walkway to the beach. On the southeast side of the project site is a ten-foot-wide platted alley. Adjacent to the project site on the southeast is the Brown property and residence, which was the subject of a CCCL permit issued in 2005. Continuing southeast from the Brown property is Pine Avenue. Dunes in the Area Florida Administrative Code Rule 62B-33.002(17) defines "dune" as "a mound, bluff or ridge of loose sediment, usually sand-sized sediment, lying upland of the beach and deposited by natural or artificial mechanism, which may be bare or covered with vegetation and is subject to fluctuations in configuration and location." A "frontal dune" is defined as "the first natural or man-made mound or bluff of sand which is located landward of the beach and which has sufficient vegetation, height, continuity and configuration to offer protective value." See § 161.053(6)(a)1., Fla. Stat. (2009).2/ "Protective value" is defined as "the measurable protective level" afforded by the dune system to upland property and structures from erosion and storm surge. See Fla. Admin. Code R. 62B-33.002(50). A "significant dune" is defined as having "sufficient height and configuration or vegetation to offer protective value." See Fla. Admin. Code R. 62B-33.002(17)(a). A "primary dune" is defined as "a significant dune which has sufficient alongshore continuity to offer protective value to upland property." See Fla. Admin. Code R. 62B- 33.002(17)(b). A primary dune may be the frontal dune if it is located immediately landward of the beach. Id. The parties disputed the proper classification of the dunes in the area of the proposed project. Their dispute is not surprising because all three types of dunes are defined as offering protective value to upland property. To state, for example, that a primary dune is a significant dune (one that offers protective value) with sufficient alongshore continuity to offer protective value, sounds circular. It is apparently the practice of the Department to treat the term "continuity" in the definitions of "frontal dune" and "primary dune" as a paramount factor. The Department does not consider a dune to qualify as a frontal dune or a primary dune unless it offers a high degree of protection because of its continuity. The most seaward dune from the project site was described by Tony McNeal, administrator of the Department's CCCL program, as a "dune system," consisting of scattered, vegetated mounds with peak elevations of about 7 feet.3/ This dune system spans the entire width of the project site and is about 180 feet wide. In recent years, the mounds have grown in size and the amount of vegetation on the mounds has increased. These mounds offer some protective value and, therefore, qualify as significant dunes. Hanson's coastal engineer, Michael Walther, believes the mounds qualify as a frontal dune, but he conceded that they would only provide protection for relatively high-frequency (e.g., 10-year) storm events. The public's pedestrian access from Elm Avenue and Pine Avenue has resulted in wide, denuded, and flattened paths through the dune system to the shoreline. Because the mounds do not create a continuous dune, but have these and other "flow lanes" through which storm surge could pass and reach upland areas, Mr. McNeal does not think they qualify as a frontal dune. Landward of the mounds is a manmade dune constructed by the applicant pursuant to a "field permit" from the Department which Hanson is offering as part of the mitigation for the impacts of the proposed project. The manmade dune spans the length of the project site (110 feet), is about 15 feet wide, and is 7 feet high. It is planted with sea oats. It was constructed with 109 cubic yards of sand. The manmade dune offers little protective value because of its small size. The primary benefits of the manmade dune are that it increases the volume of sand in the system and is vegetated. Landward of the manmade dune is a natural dune on the project site that is about 220 feet long (shore parallel), 5.0 to 8.3 feet in height, and 35 to 60 feet wide. Petitioners' coastal engineer, Karyn Erickson, believes this dune qualifies as a frontal dune. Mr. Walther thinks it is a primary dune. All the coastal engineers agreed that it was a significant dune because it provides some protective value to upland properties. However, despite this dune's height and vegetation, it lacks continuity, being interrupted on the north side by Elm Avenue, and flattening to some extent on the southeast on the Brown property and then terminating before it reaches Pine Avenue. The dune would not prevent storm surge from passing around it to inundate upland properties. Therefore, it does not provide sufficient protective value to qualify as a frontal dune. For the same reason, it does not qualify as a primary dune. It is probably most accurate to describe this dune as a remnant of what was once a primary dune. The Proposed Project The CCCL permit authorizes the construction of a single-family dwelling, slab, storage enclosure, entry foyer, shell driveway, and landscaping. The Department's permit file number is ME-919. In July 2007, the project site was conveyed from Buky to Hanson. In November 2009, the Department approved a request to transfer the CCCL permit from Buky to Hanson. The exterior dimensions of the dwelling are 58 feet by 29.3 feet, which is about 30 percent of the project site. The proposed dwelling would have two habitable floors elevated above the ground on pilings. The lower floor would be 17.5 feet above sea level, which is the elevation necessary to protect the structure from the 100-year storm surge. Underneath the dwelling would be a concrete slab or pad for parking, a storage enclosure, and a stairway. The proposed project would be located on top of the natural dune located on the project site. The height of the dune underneath the slab varies, but would have to be made level for the slab. Hanson would add 20 cubic feet of sand to the dune. The finished slab would be at a minimum height of 6.5 feet. The building would be constructed in a manner to prevent the creation of wind- or water-borne debris in the event of a hurricane. The proposed driveway and slab would eliminate some natural vegetation, including some sea oats and two sea grape trees. To mitigate for the proposed project's impact to the dune and vegetation, Hanson placed 100 cubic yards of sand on the project site to create the manmade dune and planted it with sea oats. In addition, Hanson would install sea oats, sea grapes, and cabbage palms seaward of the dwelling. The dwelling has been moved as far landward as is allowed under the local government building code. The proposed project would comply with the lighting guidelines of the Florida Fish and Wildlife Conservation Commission for the protection of sea turtles. Hanson obtained a letter of no objection from the City of Anna Maria for the proposed project. Permit Criteria Criteria for issuance of a CCCL permit are found in Florida Administrative Code Rule 62B-33.005(4): The Department shall issue a permit for construction which an applicant has shown to be clearly justified by demonstrating that all standards, guidelines, and other requirements set forth in the applicable provisions of Part I, Chapter 161, F.S., and this rule chapter are met, including the following: The construction will not result in removal or destruction of native vegetation which will either destabilize a frontal, primary, or significant dune or cause a significant adverse impact to the beach and dune system due to increased erosion by wind or water; The construction will not result in removal or disturbance of in situ sandy soils of the beach and dune system to such a degree that a significant adverse impact to the beach and dune system would result from either reducing the existing ability of the system to resist erosion during a storm or lowering existing levels of storm protection to upland properties and structures; The construction will not direct discharges of water or other fluids in a seaward direction and in a manner that would result in significant adverse impacts. For the purposes of this rule section, construction shall be designed so as to minimize erosion induced surface water runoff within the beach and dune system and to prevent additional seaward or off-site discharges associated with a coastal storm event. The construction will not result in the net excavation of the in situ sandy soils seaward of the control line or 50-foot setback; The construction will not cause an increase in structure-induced scour of such magnitude during a storm that the structure- induced scour would result in a significant adverse impact; The construction will minimize the potential for wind and waterborne missiles during a storm; The activity will not interfere with public access, as defined in Section 161.021, F.S.; and The construction will not cause a significant adverse impact to marine turtles, or the coastal system. Rule 62B-33.002(33) defines "impacts" for purposes of CCCL permitting: “Impacts” are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows: “Adverse Impacts” are impacts to the coastal system that may cause a measurable interference with the natural functioning of the coastal system. “Significant Adverse Impacts” are adverse impacts of such magnitude that they may: Alter the coastal system by: Measurably affecting the existing shoreline change rate; Significantly interfering with its ability to recover from a coastal storm; Disturbing topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure or the protective value of the dune system is significantly lowered; or Cause a take, as defined in Section 379.2413(1), F.S., unless the take is incidental pursuant to Section 379.2413(1)(f), F.S. “Minor Impacts” are impacts associated with construction which are not adverse impacts due to their magnitude or temporary nature. “Other Impacts” are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access. The proposed project involves the destruction of some native vegetation, but it will not destabilize the natural dune on the project site or cause a significant adverse impact to the beach and dune system. Removing vegetation can destabilize a dune because the vegetation prevents the loss of sand, primarily by wind erosion. However, in this case, the structure would block the wind and prevent the loss of sand. The more persuasive evidence shows that the amount of remaining vegetation, the additions of new sand and plantings, and other project conditions provide reasonable assurance that the dune would not be destabilized. This finding is further supported by the evidence that the portion of the dune that is on the Brown property has not been destabilized by the Brown project and is growing. The proposed project would not involve the removal or disturbance of in situ sandy soils to such a degree that a significant adverse impact to the beach and dune system would result. The total volume of sand associated with the dune upon which the house would be constructed would be increased by 20 cubic yards. Petitioners made much of the fact that the peak height of the natural dune on the project site would be reduced. However, Petitioners did not show this would change the functional or effective height of the dune. Common sense indicates that a dune with a peak that is over 8 feet high will not block an 8-foot storm surge if most of the dune is only 6 feet high. In this example, the effective height of the dune would be 6 feet, and an 8-foot storm surge would pass over the dune. The more persuasive evidence shows that the proposed project would not reduce the existing ability of the system to resist erosion and protect upland properties and structures. The proposed project would not direct discharges of water or other fluids in a seaward direction or in a manner that would result in significant adverse impacts. The proposed project would not result in the net excavation of the in situ sandy soils seaward of the control line. When the manmade dune is included, the proposed project would add about 129 cubic yards of sand to the project site. The proposed project would not cause an increase in structure-induced scour of such magnitude during a storm as to result in a significant adverse impact. The proposed project would minimize the potential for wind and waterborne missiles during a storm. The dwelling would be elevated above the 100-year storm surge to allow the waves to move under the structure and minimize structural damage. The proposed project would not interfere with public access. The proposed project would not interfere with marine turtle nesting. The permit contains conditions to assure that the proposed activities would not disturb nesting turtles or cause a significant adverse impact to marine turtles or the coastal system. Minmization of Impacts The expected impacts to the beach and dune system in this area are small. Hanson has minimized these potential impacts and provided mitigation so that no significant adverse impact would result. The proposed dwelling is smaller than the adjacent Brown house and would be located as far landward as the local government setback requirements will allow. Hanson would further minimize potential impacts to the beach-dune system by adding 129 cubic yards of sand to the project site and planting native, salt-tolerant vegetation. Frontal Dune The natural dune on the project site is not a frontal dune. Therefore, Petitioners' contention that the proposed project is not a sufficient distance landward of the beach and frontal dune to permit natural shoreline fluctuations and protect beach and dune system stability, is rejected. Line of Construction Existing structures in the immediate area have established a reasonably continuous and uniform construction line and these structures have not been unduly affected by erosion. The proposed project conforms to this existing line of construction and would not advance the line seaward. Cumulative Effects Petitioners contend that the cumulative effects of this proposed project and the adjacent Brown project would cause a significant adverse impact to the natural dune that crosses these properties. However, the more persuasive evidence shows that the portion of the dune on the Brown site remains stable and is even growing. Petitioners claimed that the Department acted inconsistently by treating the dune on the Brown property as "removed" by the Brown project, but treating the dune on the Hanson property as unaffected by Hanson's proposed project. However, neither Petitioners' Exhibit 17 nor any other evidence in the record establishes what changes, if any, occurred to the dune on the Brown property. It was not shown that part of the dune on the Brown property was physically removed. Furthermore, Petitioners did not show that, because the Brown project was on the dune, the Department determined that the affected portion of the dune was "removed" or ceased to function as a dune. There was no evidence presented of the existence of a coastal engineering principle that, when a structure is located on a dune, it is equivalent to removing the affected portion of the dune. Taken together, the effects of the proposed project and the Brown project would not significantly reduce the protective value of the dune. 30-Year Erosion Projection Before issuing a permit to construct major structures seaward of the CCCL, the Department is required to make a thirty-year erosion projection in the area. See § 161.053(6)(b), Fla. Stat. The 30-year erosion projection “is the projection of long-term shoreline recession occurring over a period of 30 years, based on shoreline change information obtained from historical measurements. See Fla. Admin. Code R. 62B-33.024(1). Generally, major structures seaward of the CCCL must be landward of the 30-year erosion projection. See § 161.053(5)(b), Fla. Stat. The proposed project is a major structure. The 30-year erosion projection in this area of Anna Maria Island was produced and recommended to the Department by Emmett Foster, an employee of the Beaches and Shores Resource Center at Florida State University. Mr. Foster was the principal author of the latest version of Rule 62B-33.024. Rule 62B-33.024(2) describes several procedures for determining the 30-year erosion projection, which can be used in combination. Mr. Foster's projection made use of the rule procedure that allows "credit" for beach nourishment projects. Mr. Foster assigned a 10-year credit to the nourishment project based on the history and performance of the nourishment projects in the area and the likelihood of continuing nourishments. His 30-year erosion projection is seaward of Hanson's proposed project. Petitioners disputed the procedure used by Mr. Foster. Their coastal engineer, Ms. Erickson, believes that a beach nourishment credit should not have been included in the analysis. Using an alternative procedure in the Rule 62B- 33.024, Ms. Erickson placed the 30-year erosion projection three feet landward of the most seaward edge of the proposed project (± 30 feet).4/ However, Petitioners failed to show that Mr. Foster's analysis was professionally unsound.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting the CCCL permit to Hanson. DONE AND ENTERED this 7th day of December, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 7th day of December, 2010.
The Issue The issues are whether Petitioner's application for a Notice of Proposed Change to its Development of Regional Impact constitutes a substantial deviation from the criteria in Section 380.06(19)(b)1.-15., Florida Statutes, and whether the proposed change is consistent with Bay County's Comprehensive Plan.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Bay Point Club, Inc. (Petitioner), is the owner of Parcels F, 9, 10, and 12 located within the Bay Point Yacht and Country Club Resort Development of Regional Impact (Bay Point DRI) in Panama City, Florida. The Bay Point DRI was approved by Respondent, Bay County (County), on July 22, 1986, and authorized the development of 2,161 residential units, 200 hotel units, 123 marina slips, and recreational facilities on approximately 946 acres. The County is responsible for issuing development orders for projects that are to undergo development of regional impact review, including amendments to development orders of previously determined DRIs, in conformity with the requirements of Section 380.06, Florida Statutes. When the original Development Order was issued in 1986, Bay Point Yacht & Country Club was the sole developer of the Bay Point DRI. Since that time, the ownership and control of the properties within the Bay Point DRI has changed, and there are now multiple owners and developers of the 36 separate development areas or parcels included within the Bay Point DRI, including Petitioner, who owns the above four parcels. The Bay Point DRI was approved by the County prior to the adoption of its Comprehensive Plan (the Plan). When the first Plan was adopted in 1991, the County recognized and incorporated the Bay Point DRI through the adoption of an overlay to the Future Land Use Map (FLUM) which delineates the boundaries of the property. As stated in Future Land Use Element Policy 3.4.5, the overlay was adopted to ensure the consistency and compatibility of the Bay Point DRI with the County's FLUM. Parcels F and 12 were designated as "Seasonal/Resort" and Parcels 9 and 10 were designated as "Residential" on the FLUM. These designations remain in effect as of the date of the final hearing. A Seasonal/Resort classification allows a broad range of uses such as beach houses, multifamily housing, condominiums, hotels, lodges, restaurants, and other similar uses, while a Residential classification permits those land uses typically associated with residential occupancy. The Bay Point DRI has been amended 15 times, which amendments cumulatively reduced by 145 the total number of residential units. None of these amendments constituted a substantial deviation from the approval given in the original Development Order, and the County has never required a corresponding amendment to its Plan, FLUM, or DRI overlay as a condition for approval for any of these changes to the DRI. In July 1993, PFP One, Inc., Petitioner's parent company, entered into a Purchase and Sale Agreement with the Federal Deposit Insurance Corporation, as manager of the FSLIC Resolution Trust Fund, to purchase Parcels F (a waterfront lot adjacent to the Bay Point Marina), 10, and 9 for $235,000. At that time, Parcels 9 and 10 were vacant, and they remain vacant today. A private membership tennis facility was operating on Parcel F through a lease agreement Petitioner inherited as a part of the purchase. These tennis facilities were closed on April 1, 2000, due to a lack of membership support. Parcel 12 was purchased by PFP One, Inc. in 1994. It contained a private clubhouse facility which had once been operational prior to the approval of the DRI, but was closed at the time of the sale. The clubhouse was remodeled by Petitioner shortly after the Parcel was purchased and reopened the same year. Due to a lack of membership support, however, the clubhouse was closed in 1996. The single-family residential portion of Bay Point begins within a few hundred feet west of the above Parcels. The Development Order currently provides the following descriptions for Parcels F, 12, 10, and 9: Parcel F: Located adjacent to the Bay Point Clubhouse, this 4.8 acre site currently supports the Bay Point Tennis Center. As a part of Bay Point's long term plan, the Tennis Center is scheduled to be moved to Area 9 in 1986. In 1987, a 70-unit condominium project designated as Port Towers is planned to be built on this waterfront site. [A] total of 97,000-sq. ft. of heated and cooled space are planned. Included will be a pool and recreation center. Building height would be restricted to not more than five stories with a majority of the project being of the two and three story height. Four, 2100 sq. ft. penthouse units, eight (8) 1,800 sq. ft. three-bedroom units, forty (40), 1400 sq. ft. two-bedroom units and eighteen (18), 1000 sq. ft. one-bedroom units are planned. There would be no restrictions of resort rental use, although it is assumed that, like Marina Club Village, the vast majority of these units will be primary and secondary homes because of pricing. Restrictive covenants for this project would be developed similar to those currently in force at Bay Point. Parcel 12: A 4-acre main clubhouse site, which is adjacent to the swimming pool, snack bar, health club and real estate facilities, is in the vested area and was substantially completed prior to July 1, 1973. Parcel 10: This one acre site is the planned location of the new Sport Center Clubhouse which will serve Bay Point's member golf facilities and the resort's tennis and health facilities. Included in the 14,000 square ft. Clubhouse will be a 90-seat restaurant and snack bar area, a health club, exercise and massage rooms, men and women's locker rooms, offices for the Director of Tennis and Golf Professional and a classroom. Additional space will house the club's sports retail center which sells both hard and soft goods associated with golf, tennis and physical exercise. Parcel 9: This 6 acre site has been set aside as the future location of the Bay Point Tennis Center. When completed, it will consist of up to 14 tennis courts, one of which will be the center court with stadium stands. The original description of Parcels F and 12 reflects that the acreage of the two sites combined is 8.83 acres. A survey completed just before the NOPC was submitted determined that the combined acreage of the two parcels was actually 9.67 acres. Petitioner has stipulated that in the event the smaller acreage number is correct, the density that will be developed on the property will be in conformity with the limitations imposed by the smaller acreage. On May 14, 2001, Petitioner filed with the County a Notification of Proposed Change to a Previously-Approved Development of Regional Impact (NOPC) under Section 380.06(19), Florida Statutes. Copies were also provided to the Department of Community Affairs (DCA) and the West Florida Regional Planning Council (Council). Under the NOPC, Petitioner proposes to change the Development Order as to Parcels F and 12 as follows: The proposed project will be a 136-unit condominium project with approximately 58 units on Parcel F and 78 units on Parcel 12. The number of units on both parcels will increase from the current 70 units authorized on Parcel F to 136 units on Parcels F and 12 combined, a cumulative increase of 66 units. Three concrete structures are planned. The center building, which is the farthest from any existing development, is 11 stories in height with a step increase to 12 stories. The two exterior buildings are six stories in height with step increases to ten stories. All improvements to the project will be built by year end 2004, which is the current build-out date for the Bay Point DRI, as amended. The existing tennis courts located on Parcel F will be reduced to four hard surface courts with separate restroom facilities. The residential units will consist of 1, 2, 3 and 4 bedroom condominiums, approximately 900 to 2,400 sq. ft. in size. Thus, the proposed change in Parcels F and 12 will increase the number of condominium units from 70 to 136, change the height limitation from 5 stories to 12 stories, and eliminate the existing tennis facility. In addition, Petitioner proposes to eliminate the swimming pool and clubhouse now located on Parcel 12 and replace them with condominiums. The NOPC also proposes to change the Development Order as to Parcels 9 and 10 in the following manner: The designations for Parcels 9 and 10 will be changed from "Tennis Complex" and "Sports Center/Clubhouse," respectively, to Recreation. These changes are sought because of the historical absence of community or public support for the existing private tennis and clubhouse facilities presently located on Parcels F and 12. Funded through annual memberships by residents of Bay Point and the public, support for these facilities has been insufficient to economically sustain them and justify their continued operation. Consequently, due to lack of membership support, the Clubhouse on Parcel 12 was closed in 1996. For the same reason, the tennis courts on Parcel F were closed April 1, 2000. Changing the designation on Parcels 9 and 10, from Tennis Complex and Clubhouse to Recreation[,] will afford the Applicant with the flexibility needed to develop new or expanded active and/or passive recreational opportunities which the residents of Bay Point are willing and able to support, and which are economically feasible. In no event, however, will the Applicant develop, or allow others to develop, recreational facilities on Parcel 9 or Parcel 10 which exceed the intensity standards authorized for the development of these properties by the original Bay Point DRI. Under these proposed changes, Parcels 9 and 10, which are predominately wetlands, will remain undeveloped and constitute a passive recreation area. The changes proposed in the NOPC will require corresponding changes to the uses originally approved for Parcels F, 12, 10, and 9 in the Bay Point DRI Development Order, including changes to Map H, the Master Development Plan Map. The changes proposed by the NOPC for the DRI Development Order, including the changes to Map H, will not require a corresponding amendment to the underlying land use designations for Parcels F and 12 (Seasonal/Resort) and Parcels 9 and 10 (Residential). The NOPC was reviewed by the Council for conformity with the requirements of Section 380.06(19)(f)4., Florida Statutes. On June 11, 2001, the Council advised the County that the changes proposed for Parcels F, 9, 10, and 12 did not appear to constitute a substantial change from the previously- approved Bay Point DRI. The DCA did not submit a written objection to the proposed NOPC. On August 7 and September 7, 2001, the County held quasi-judicial public hearings on the NOPC. At the latter meeting, the County denied the NOPC on the basis of a 2-2 tie vote regarding the question of whether the proposal constituted a substantial deviation. The County did not make any determination with respect to the question of whether the NOPC was consistent with its Comprehensive Plan. This finding was confirmed in a letter from the County Attorney's Office dated September 7, 2001, and transmitted to Petitioner on September 11, 2001. On October 11, 2001, Petitioner filed its Petition to Appeal DRI Development Order with the Florida Land and Water Adjudicatory Commission (Commission). On November 7, 2001, Intervenors, K. Earl Durden, David Allen Spencer, Harry B. Sipple, III, Unal Tutak, David W. Hill, Lucy N. Hilton, and William F. Fusselman, who all own property within the Bay Point DRI and have standing to participate, filed a Petition to Intervene. On November 8, 2001, Intervenor, Bay Point Community Association, Inc., which is the homeowners' association for the approximately 1,300 residences within the Bay Point DRI and likewise has standing to participate, filed its Petition to Intervene. These Petitions were granted by the Commission on December 19, 2001. Although the Petitions to Intervene contended that the NOPC constituted a substantial deviation requiring further DRI review by the County, that issue has been abandoned. Remaining at issue is the contention that the NOPC is inconsistent with the County's Comprehensive Plan (Plan) by generally failing to protect residential property values, promote viable neighborhoods, and maintain the community character in residential areas, as required by various Plan Objectives and Policies. Intervenors also contend that the NOPC lacks a needed stormwater plan. In more simple terms, however, Intervenors object to any high- rise development in an area surrounded by single-family residential homes and in a community (Bay Point) where no other buildings exceed seven stories in height. The characteristics of the community Bay Point is a unique, residential resort development on St. Andrews Bay in Panama City, Florida. A large portion of the land lying north of Bay Point is owned by the United States Navy; thus, Bay Point is somewhat isolated from the unplanned developments which occur in other inland areas, as well as along the Gulf of Mexico. Residential and commercial development commenced in Bay Point in 1971. To date, no high-rise buildings have been constructed in the community. Most structures are one or two stories in height, and only four buildings in Bay Point exceed two stories: the Bay Town commercial and condominium development (three stories); the Lagoon Towers condominium with sixty-three units (seven stories), which is the tallest building in Bay Point; the Marriott Legends Edge timeshare with twenty-eight units (six stories); and the Marriott Hotel (five stories). The three tallest buildings are in the extreme southeast portion of Bay Point a minimum of 1,600 feet and as far as 3,000 feet from the site of Petitioner's proposed high rise condominium buildings. When viewed from a distance, the four buildings which exceed two stories in height can barely be seen above the tree line. Bay Point is a mixed use development because it includes residential and nonresidential uses, as well as some community facilities. However, it is fair to state that Bay Point is a low-rise, low-density residential development, and it was planned as a predominately residential community under the 1986 DRI Development Order. Access to the residential part of the community is controlled through gates and a security force. Although there are some resort rental activities and tourist accommodations (a Marriott hotel), Bay Point is comprised of predominately permanent residents. There are 681 single-family homes on individual lots in the western portion of Bay Point, which are one and two-story structures comprising 79.9 percent of the development in Bay Point. The two-story single-family homes tend to be clustered along the bay or along the canals running through the development. As originally developed, commercial development made up only 10.4 percent of the land area of Bay Point. Of that total, 6.6 percent is retail and office development (such as offices, restaurants, retail shops, and a post office); 1.5 percent is commercial recreation (pro shops and golf and tennis club); and 1.7 percent is a Marriott Hotel. In addition, community facilities (including a playground for children) comprise 1.5 percent of the land area. There is also a 201-slip marina and a semi-private golf club on the premises. The "resort core" area of Bay Point refers to certain development in the Seasonal/Resort land use category containing a mixture of mainly seasonal and tourist residential, commercial, and noncommercial uses. Of the almost 1,000 acres in the Bay Point DRI, only about 24 acres were planned and approved for "resort core," or less than 15 percent of the 200 acres designated as Seasonal/Resort. The remaining 85 percent of the Seasonal/Resort area has a predominately residential character. Petitioner's project on Parcels F and 12 is far from any development that could be characterized as "resort core," and all of the development in the immediate vicinity of and surrounding Parcels F and 12 is residential development with structures not exceeding two stories in height. Thus, Petitioner cannot rely on any perceived proximity of Parcels F and 12 to the "resort core" as a basis for justifying the high-rise structures. Consistency with the Plan Intervenors contend that the NOPC is inconsistent with Future Land Use Element (FLUE) Policy 3.4.5 (which allegation is subject to an objection by Petitioner); Housing Element Objective 8.5; Housing Element Policy 8.5.1; Housing Objective 8.9 (which allegation is subject to a Motion to Strike); Stormwater Management Objectives 5E.9 and 5E.12; Stormwater Management Policies 5E.9.1, 5E.10.1, and 5E.12.1; and FLUE Policy 3.3.1. Each of these items will be addressed separately below. As a part of its 1999 Plan (which amended and updated the 1991 Plan), the County adopted special treatment zones (STZs) to be designated on the FLUM in addition to the future land use categories. The specific STZs are established pursuant to FLUE Objective 3.4, which provides that the zones are created "for purposes of dealing with unique or desirable circumstances." The unique circumstance in this case is the DRI. In the Plan, the County has either adopted or expressed its intent to adopt distinct land development regulations or land use controls for each STZ. FLUE Policy 3.4.5 establishes the Bay Point DRI STZ. This policy provides that: [t]he Bay Point Development of Regional Impact (DRI) Special Treatment Zone shall be established in order to ensure compatibility and consistency between the Bay Point DRI Development Order and the FLUM. Development in this area shall be governed by the DRI Development Order. (Emphasis supplied) The last sentence of Policy 3.4.5 was added by comprehensive plan amendment adopted on July 10, 2001. By virtue of the underscored language, the conditions and restrictions on the use and development of Parcels F, 9, 10, and 12 in the DRI Development Order in effect on July 10, 2001, are incorporated into the County's Plan. This was confirmed at hearing by the County's Planning and Zoning Manager. Thus, the maximum five-story height limitation on Parcel 12 contained in the DRI Development Order is incorporated into the Plan by reference through Policy 3.4.5. Because all three of Petitioner's proposed high-rise condominium buildings exceed the five-story height limitation for Parcel F found in the DRI Development Order in effect on July 10, 2001, the NOPC is inconsistent with Policy 3.4.5. Objective 8.5 of the Housing Element provides that all projects in the County will "preserve and protect the character, compatibility, and aesthetics of residential areas and neighborhoods through the enforcement of land use regulations." Petitioner contends that this Objective cannot apply to the development on Parcels F and 12 because these parcels are in a mixed land use category under the FLUM and therefore are not in "residential areas or neighborhood" as contemplated by the Objective. However, the Objective refers to "residential areas and neighborhoods," and not to future land use categories. Thus, the Objective is directed towards existing residential and multi-family development in Bay Point, including Intervenors' property, and must be taken into account when judging the merits of Petitioner's application. "Character" and "aesthetics" are not defined in the Plan. Rather, they are terms of art in the planning profession and are commonly understood by planning professionals. These terms refer to development as it exists, not development that could occur based on a land use category. This is because one cannot protect the character and aesthetics of a land use designation. The evidence shows that "character" consists of those attributes that lend a sense of place to an area, which people in the area can identify with that is distinguishable from other such areas. It includes such factors as type of buildings, building height and mass, the relationship of one building to another, the types of activities that go on in the area or neighborhood, the presence or absence of vegetation, the presence or absence of underground utilities, street design, architectural design, and the preservation of the long-standing stable nature of a neighborhood. "Aesthetics" are those attributes that determine whether an area is visually pleasing. The character of the Bay Point community is that of a stable, low-rise, low density, residential resort community. The buildings in Bay Point consist of individual homes and small villa or townhouse-type buildings clustered on parcels. There are no high-rise buildings in the community or beachfront property. The evidence clearly supports a finding that Bay Point is a predominately neighborhood residential community. Petitioner proposes to construct on Parcels F and 12 three separate high-rise buildings. The outer buildings are six stories at their exteriors, with step increases to ten stories at the interiors. The center building will be eleven stories at the outer edges, with a step up to twelve stories at the peak. The construction of these high-rise condominiums will be in stark contrast to, and out of harmony with, the existing low-rise, low-bulk structures which surround the proposed project and will dramatically change the low-rise, neighborhood character of Bay Point. Thus, the proposed condominiums are not consistent with Objective 8.5 in that they do not preserve the character of the existing residential development within Bay Point. Policy 8.5.1 of the Housing Element requires compatibility between types of residential structures. The Policy also requires that specific criteria be included in the County's Land Use Code "for the preservation and protection of residential areas." It further provides that these standards should ensure that "compatibility between types of residential buildings" will be maintained, and that "residential areas will be used primarily for residential purposes." As of the date of hearing, however, no standards had been adopted, although the County is now in the process of developing such criteria. Until specific criteria are adopted and included in the Land Use Code, Petitioner contends that the Policy cannot be relied upon by Intervenors. If this proposition were true, however, no existing project could be measured for compatibility, and the Policy would be meaningless. The more persuasive evidence supports a finding that in the absence of specific standards in the Land Use Code, it is appropriate to rely upon standards used by land use professionals for determining compatibility between types of residential buildings. Indeed, every land planning expert who testified at hearing agreed that a consistency determination should be made based on the guidance provided in the Objectives and Policies of the Plan. The County has addressed the subject of compatibility in Objective 3.9 and Policy 3.9.1 of the Future Land Use Element. The former provision provides that "[a]ll proposed land uses shall be compatible with adjacent conforming land uses," while the latter provision defines "compatibility" to mean "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." The evidence establishes that land use planners view compatibility as meaning the relationship between buildings, uses, and activities to one another. Factors to be used in making this determination are density, building height, scale and mass, lot configuration, and building orientation. Other factors used in this determination include established development patterns, expectations that arise from established development patterns, character of the neighborhood, and stability of the neighborhood. The evidence supports a finding that the development pattern in Bay Point, the expectations of Intervenors and the community based on that development pattern, and the atypical height and mass of Petitioner's project render the proposed project incompatible with Bay Point and thus inconsistent with Objective 8.5.1 of the Plan. In making this finding, the undersigned has found that Petitioner's compatibility analysis is too narrow in scope and ignores the reality that Petitioner proposes to develop three high-rise buildings, grouped together in one location, in an established, predominately low-rise residential community. Objective 8.9 of the Housing Element requires that any project in the County "[p]rotect residential property values and ensure that each homeowner has the opportunity for quiet use and enjoyment of their residence." Thus, in order to be consistent with the Plan, Petitioner must demonstrate that its project will not impact the residential property values in Bay Point in a negative manner. To demonstrate consistency with the foregoing Objective, Petitioner's expert opined that the proposed project would infuse new capital and value into the Bay Point area thereby increasing property values. However, Petitioner's market study (Petitioner's Exhibit 12) is flawed in several respects. For example, it incorrectly defines the Bay Point neighborhood as including an intensely developed Gulf front tourist district along Thomas Drive and the east end of Highway 98 in Panama City, within a three to six mile southern radius of Bay Point, and which includes high-rise condominiums, motels, and commercial uses that are dependent on the tourist industry. The study also concludes, erroneously, that most of the condominium units in Bay Point are utilized as second homes and rental properties by absentee owners. Finally, the study uses two "comparable" projects on which to base a market analysis, one in Destin and the other in Seascape. Neither property is really comparable since both are located on the Gulf of Mexico in neighboring Walton County. The more credible evidence establishes that the threat of development of high-rise buildings on Parcels F and 12 has caused a decline in residential property values in Bay Point. Further, if the NOPC is approved, the property values will continue to decline. This decline has been exacerbated by the loss of the Bay Point community center and tennis courts, which were previously located on the lots in question. Given these considerations, it is found that the NOPC is inconsistent with Housing Element Objective 8.9, in that the NOPC does not protect property values within the community. Intervenors further contend that the NOPC is inconsistent with various Objectives and Policies in the Stormwater Management Element since the NOPC does not contain a detailed stormwater plan for the proposed project. These Objectives and Policies are designed to reduce and eliminate flooding, protect surface waters from contamination and sedimentation caused by the stormwater, and prevent future problems by regulating development. This contention has been rejected since the specific requirements for the stormwater system necessary to serve Parcels F and 12 are not properly addressed in the DRI process, but rather will be considered by the County at the time the actual construction documents for these parcels are submitted for review and permitting. Finally, Intervenors assert that the NOPC is inconsistent with Future Land Use Element Policy 3.3.1, which designates criteria for designating land use categories on the FLUM and attendant standards for development. No credible evidence was presented on this issue, and therefore the contention has been rejected. All other matters raised by Intervenors have likewise been considered and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying Petitioner's application for a NOPC on the ground that it is inconsistent with FLUE Policy 3.4.5, Housing Element Objective 8.5, Housing Element Policy 8.5.1, and Housing Element Objective 8.9 of the Bay County Comprehensive Plan. DONE AND ENTERED this 11th day of December, 2002, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2002. COPIES FURNISHED: Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Suite 2105 Tallahassee, Florida 32399-0001 Kenneth D. Goldberg, Esquire 1725 Mahan Drive, Suite 201 Tallahassee, Florida 32308-5201 Michael S. Burke, Esquire Burke & Blue 221 McKenzie Avenue Panama City, Florida 32401-3128 Robert C. Apgar, Esquire Sherry A. Spiers, Esquire Law Offices of Robert C. Apgar 320 Johnston Street Tallahassee, Florida 32303-6214 Richard W. Moore, Esquire Amundsen and Gilroy, P.A. Post Office Box 1759 Tallahassee, Florida 32302-1759 Raquel Rodriguez, General Counsel Florida Land and Water Adjudicatory Commission Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-0001
