The Issue The issue for determination is whether Petitioners are eligible for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida.
Findings Of Fact On November 30, 1993, Vander Ploeg and Associates, Inc., on behalf of Paul Leto, Richard Meyer, and Berta Anderes (Petitioners) submitted an application to the Florida Department of Environmental Protection (Respondent) for a permit to perform construction on their property seaward of the Broward County Coastal Construction Control Line. Respondent deemed their application complete on April 18, 1994. Petitioners proposed construction will be seaward of the Coastal Construction Control Line. The proposed construction will occur on two adjacent lots in Broward County. Petitioner Leto is the owner of one of the lots described as Lot 19, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioners Meyer and Anderes are the owners of the other lot described as Lot 20, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioner Leto purchased his lot in September 1992 and Petitioners Meyer and Anderes purchased their lot in March 1993. The lots were platted in or around the 1920's. Both lots are seaward of the seasonal high water line, on a sandy beach with no frontal dune structure. They are bordered by the Atlantic Ocean on the eastern most side and by a roadway (Surf Road) which is immediately adjacent to the lots on the western most side and landward of the lots. Approximately 200 feet north of the lots is an existing structure and approximately 800 feet south of this first existing structure is another existing structure. Petitioners topographical survey, which was submitted to Respondent in December 1993, showed that Lots 19 and 20, each measured 40 feet in a shore parallel direction and 80 feet in a shore normal direction, i.e., perpendicular to the shoreline. The proposed structure will be located directly on the sandy beach. The City of Hollywood, Florida has granted Petitioners a variance. Further, the proposed construction complies with the rules, zoning regulations, and ordinances of the City of Hollywood. Petitioners' application requests a permit for the construction of a single-family residence on the lots, which will house two families. However, the proposed construction is for a duplex, not a single-family residence. Petitioners are willing, and agreeable, to changing the design of the proposed structure to comply with Respondent's specifications for a single- family residence. Additionally, the proposed construction includes a riprap which will also be located on the sandy beach. A riprap is typically used for protective armoring. No structure presently exists for the riprap to protect. Furthermore, the riprap proposed by Petitioners is not adequately designed as a coastal protection structure, and if the proposed single-family residence is modified in accordance with Respondent's specifications, the proposed modified single-family residence would not be eligible for coastal armoring. The riprap structure is not an integral part of the structural design. Petitioners are willing, and agreeable, to eliminating the riprap structure. No other issues exist as to the structural integrity of the design of the proposed project. The lots on which the proposed structure will be located are a part of the beach-dune system. The natural function of the beach provides protection to upland property. The lots on which the proposed structure will be located are subject to normal storm-induced erosion. Tide and wave forces will impact the proposed structure during storms of minor intensity, including five-year storms. The proposed structure will induce greater erosion on the lots as a result of scour due to the interaction of the storm waves and currents with the proposed structure. During the storm, the normal storm-induced erosion combined with the scour erosion will form a breach or depression in the subject property. In turn, the upland property will be exposed to greater tide and wave forces, increasing the risk of erosion and damage to the upland property. The subject lots and surrounding properties have been subjected to unnatural forces which have added to the erosion. The Port Everglades inlet has inhibited the natural downdrift of sand. The City of Hollywood's beach maintenance division has been regularly pushing sand seaward and in the process, breaking down natural forming cliffs. Even though these unnatural forces are capable of being eliminated, the normal storm-induced erosion and the scour erosion would still exists. The existing developed structures to the north and south of the subject lots appear to create a reasonably uniform line of construction. However, the developed structures have been unduly affected by erosion. The proposed structure will be located within this line of construction. During a major storm along the shoreline, waves remove sand from the beach and dune area and deposit the sand in an offshore bar. After the major storm, a recovery of the beach and dunes takes place. Normal wave activity carries the sand from the offshore bar back to the beach, and the sand is then carried landward by winds and is caught and trapped by dune vegetation; thereby reforming a dune. Constructing the structure as proposed will not locate the structure a sufficient distance landward of the beach-dune system. As a result, the proposed structure will interrupt natural fluctuation in the shoreline and not preserve the natural recovery following the storm-induced erosion. The cumulative impact on the beach-dune system by the proposed structure would be severe, i.e., the effects on the beach-dune system by repeating this same proposed structure along the subject shoreline would be severe. There would be structure-induced scour and general degradation of the beach-dune system. Additionally, the recovery potential of the subject area following a major storm event would be threatened. Over the years, the beach of the subject property has been subjected to a re-nourishment project consisting of pumping sand from offshore. This method of re-nourishment may have negatively impacted the sand bar system immediately offshore affecting the hindrance of erosion. A sand bar system immediately offshore softens wave action on the shore and aids in inhibiting erosion. The proposed structure will hinder lateral public beach access. Currently, lateral beach access exists along the beach between the existing northern developed property and the existing southern developed property. The proposed structure will be located on the sandy beach, and the seaward face of the proposed structure will be within approximately one foot of the wet sand beach. At times, the proposed structure will be surrounded by water on at least three sides. No alternative beach access would be available. The proposed riprap will also be located on the sandy beach and will further hinder lateral public beach access. 2/ Loggerhead turtles, which are nesting marine turtles, engage in nesting activities along the stretch of beach where the subject property is located. They are a threatened species, i. e., close to extension. Although they do not nest every year, the turtles usually provide several nests in a single year. Typically, one hundred eggs comprise a turtle nest. In 1992, approximately 2,221 loggerhead turtle nests were in Broward County, with 22 of these nests located within 1,000 feet of the subject property. Turtle nesting efforts have been observed in the beach area of the subject property. One nest was found within the subject property. Structures located on the sandy beach interfere with marine turtle nesting habits. If female turtles make contact with the structures, they often abort nesting attempts, which results in false crawls. Repetitive false crawls harms successful nesting, which may cause malformed egg chambers, impacting the successful incubation of the nest. Also, interaction with a structure can cause injury or death to a female turtle attempting to nest. Additionally, urbanization activity and lighting on the beach deter nesting. A loss of marine turtle nesting habitat will result if the proposed structure is constructed. Also, armoring, such as the proposed riprap, can result in nests being placed more seaward. 3/ Consequently, the nests would be threatened with tidal inundation, which would affect the mortality of the nest itself. As one nest has been located within the subject property, at least one nest or crawl per year would be affected by the proposed structure. Within 30 years, the proposed structure will be seaward of the seasonal high water line. The location of the proposed structure is seaward of the 30-year erosion projection for the subject property. Beach Defense Fund, Inc. (Intervenor) presented no evidence to show that its interest is different than the public at large and that it has substantial interest separate and apart from the public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Paul Leto, Richard Meyer, and Berta Anderes for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida. DONE AND ENTERED this 31st day of May, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 31st day of May, 1996.
The Issue The issue is whether Petitioner's after-the-fact modification application for construction activities seaward of the coastal construction control line in New Smyrna Beach, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In 1984, Petitioner, Thomas R. Sweeney, purchased a home at 5917 South Atlantic Drive, New Smyrna Beach, Florida. At that time, the home was approximately 3,000 square feet in size. The home sits seaward of the coastal construction control line (CCCL) and thus any construction activities on the premises require the issuance of a CCCL permit from Respondent, Department of Environmental Protection (DEP). In 1987, Petitioner constructed a first floor porch, second story addition, and wooden deck at the site without first applying for and obtaining a CCCL permit from the Department of Natural Resources, which was subsequently merged with DEP. After the construction was completed, Petitioner submitted an after-the-fact application for a CCCL permit for those structures. Before being issued Permit Number VO-423, Petitioner was required to pay an administrative fine. Among other things, Permit VO-423 approved an already constructed wooden deck on the eastern side of the home which approximated 840 square feet in size. Petitioner was also given approval for a wooden walkway with stairs that provided access to the beach. On June 1, 1995, Petitioner filed a second CCCL application with DEP to add a 20-foot first and second story addition with a deck to the south side of the home. After reviewing the application, on November 9, 1995, DEP issued CCCL Permit Number VO-627 authorizing the scope of work identified in the permit application documents. Notwithstanding the limited amount of work authorized by the permit, Petitioner constructed a third story addition to his home. He also removed the original wooden deck on the eastern side of the home, and he constructed spread footers and a foundation on top of the rock revetment for a new and much larger deck. The new deck is approximately 2,100 square feet, or more than 1,200 square feet larger than the original permitted deck. In its present state, the home is approximately 5,600 square feet, and the existing eastern deck is larger than any permitted deck on any other single-family home in Volusia County. On September 9, 1996, DEP discovered the third story addition and the much larger wooden deck with appurtenant structures. Presumedly at the behest of DEP, on November 22, 1996, Petitioner submitted an application for an after-the-fact modification of CCCL Permit Number VO-627 to authorize the previously completed, unauthorized work. On April 23, 1997, DEP issued CCCL Permit Number VO-627 After-the-Fact. The permit approved the third-story addition to the home together with a 10-foot wide wooden deck on the seaward side of the entire third story and a 12-foot wide wooden deck on the landward side of the third story. DEP denied, however, authorization for Petitioner's new wooden deck on the first floor with a tiki hut and sundeck on the ground those structures violated Rule 62B-33.005(4)(e), Florida Administrative Code. That rule requires that any new construction seaward of the CCCL "minimize the potential for wind and waterborne missiles during a storm." The issuance of the proposed agency action prompted Petitioner to initiate this proceeding. On November 3, 1997, DEP entered a Final Order directing Petitioner to pay a fine because he illegally constructed structures seaward of the CCCL. The order was never appealed, and thus the time to challenge the order has elapsed. As of the date of hearing, Petitioner had not paid the fine, and a statutory lien has been placed on the property. The Storm Surge Elevation at this site for a 100-year storm event is 10.7 feet N.G.V.D. The Breaking Wave Crest- Elevation for a 100-year storm event at this site is 14.9 feet N.G.V.D. Part of the new eastern deck is located below an elevation of 14.9 feet N.G.V.D. The builder who constructed the additions, Edward Robinson, characterized them as "above average to superior" in quality. To minimize the possibility of the deck washing away during a storm event, he used the "best" nails, bolts, and concrete available. In addition, the new decking was rested upon concrete footers for support. The footers, however, are on top of a rock revetment, and Robinson conceded that such footers are not as stable as a pile foundation. Petitioner used coquina rock (with a low unit weight) for his revetment. It was established that the rocks on which the footers rest are not permanent, and they can shift during a large storm event. In fact, shifting can occur even during a ten-year storm, and there will be a total failure of the revetment during a thirty-year storm event. Once the stones move, an erosion process begins, and the deck will fail. The accompanying high winds will then lift the wooden debris in an airborne fashion. Depending on the strength of the storm, the airborne debris will be a threat not only to Petitioner, but also to his neighbors. Therefore, it is found that the existing construction for the eastern deck does not minimize the potential for wind and waterborne missiles during a storm, and it thus violates Rule 62B-33.005(4)(e), Florida Administrative Code, as alleged in the proposed agency action denying in part the permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's application for an after-the-fact amended CCCL permit to construct an expanded eastern deck with a tiki hut and sun deck on his property at 5917 South Atlantic Avenue, New Smyrna Beach, Florida, and approving the application for the structures previously authorized by the Department in its Final Order issued on April 24, 1997. DONE AND ENTERED this 11th day of May, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1998. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Thomas H. Dale, Esquire Post Office Box 14 Orlando, Florida 32802 Thomas I. Mayton, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Florida Administrative Code Rule 62B- 33.008(4)(d) should be determined to be an invalid exercise of delegated legislative authority? The Rule requires that an application for a permit for construction seaward of a coastal construction control line ("CCCL") contain "written evidence, provided by the appropriate local government agency . . ., that the proposed activity . . . does not contravene local setback requirements, zoning, or building codes and is consistent with the State approved Local Comprehensive Plan." Whether a statement alleged to have been made by an employee of the Bureau of Beaches and Wetland Resources in the Department of Environmental Protection ("DEP" or "the Department") violated Section 120.54(1)(a), Florida Statutes? The alleged statement is to the effect that in determining if structures littoral to the coast have established a continuous construction line closer to the mean high water line than the CCCL, the Department uses a 1000-foot distance to structures on either side of the proposed project.
Findings Of Fact The CCCL and Continuous Lines of Construction The CCCL The Legislature has declared it in the public interest to preserve and protect Florida's beaches and the coastal barrier dunes adjacent to them. See § 161.053(1)(a), Fla. Stat. In furtherance of this intent, the Department is empowered to "establish coastal construction control lines on a county basis along the sand beaches of the state fronting the Atlantic Ocean . . .". id., "after it has been determined from a comprehensive engineering study and topographic study that the establishment of such control lines is necessary for the protection of upland properties and the control of beach erosion." § 161.053(2)(a), Fla. Stat. The Department defines "Coastal Construction Control Line" or "CCCL" as "the line established pursuant to the provisions of Section 161.053, F.S., and recorded in the official records of the county, which [delineates] that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions." Fla. Admin. Code R. 62B-33.002(12). Brevard County's CCCL bisects property along the Atlantic Ocean owned by Petitioner and her husband. Continuous Lines of Construction The Department is mandated to exempt from some regulation certain construction that is seaward of a CCCL. See, e.g., Section 161.053(2)(b)1., Florida Statutes, which relates to construction landward of beach armoring. In addition, the Department is granted discretion to permit construction seaward of a CCCL in other instances. One such instance relates to construction landward of "a reasonably continuous and uniform construction line," Section 161.053(5)(b), Florida Statutes (a "Continuous Line of Construction") that is seaward of the CCCL. Subsection 161.053(5)(b): (5) Except in those areas where local zoning and building codes have been established pursuant to sub-section (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows: * * * (b) If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing [the coastal construction control lines], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department. However, the department shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided herein . . . This proceeding involves a permit for construction seaward of the CCCL and landward or on a Continuous Line of Construction. The lines are in Brevard County where property is owned by both Petitioner and Intervenors, who, together with DEP, comprise the parties to this proceeding. The Parties Petitioner Carol C. Pope resides part-time in a duplex along Wilson Avenue on Cape Canaveral in Brevard County. She owns this oceanfront property, littoral to the Atlantic Ocean, with her husband James M. Pope. Although the property has a Cocoa Beach mailing address, it is not within the city limits of Cocoa Beach. The pre-hearing stipulation filed by all of the parties offers this account of the property's location: "The Pope's property is Lot 11, Block 101, Avon by the Sea, as described in Plat Book 3 page 7, [presumably in the Official Records of Brevard County] and east to Ocean, except the west 13 feet of Lot 11." Ms. Pope is the Petitioner in both of the consolidated cases that comprise this proceeding. The Department Among many duties related to environmental protection, the Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control lines; activities seaward of the coastal construction control line; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties." § 161.053(21), Fla. Stat. Pursuant to its rule-making authority in Section 161.053 (together with other specific authority), the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)." Two employees of the Department Tony McNeal, P.E., and Srivinas Tammisetti, P.E., testified at hearing. Both are engineers and both are involved with the Coastal Construction Control Line Program. Mr. McNeal is the program administrator. Mr. Tammisetti is a Professional Engineer II with the Department's Bureau of Beaches and Wetland Resources (the "Bureau"). He is responsible for "coastal armoring projects for the entire state" (tr. 52) and he is the head engineer for Lee County. In his capacity with the Bureau, Mr. Tammisetti reviews applications for activities seaward of the coastal construction control line. The Rays Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No. BE-1083 (the "Permit") issued by the Department in its order filed September 19, 2003. The Permit is the subject of the administrative proceeding initiated by Ms. Pope in DOAH Case No. 03-3981. Events Preceding the Permit's Issuance The Rays applied to DEP for a permit to conduct activities seaward of the CCCL, including construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry walls, and an exfiltration system. The Department approved the application. The Department's order issuing the Permit is titled "Permit for Construction or Other Activities Pursuant to Section 161.053, Florida Statutes." Intervenor's Ex. 1, Tab 6, pg. 1. The Permit acknowledges the application is for "authorization to conduct . . . activities seaward of the coastal construction line" and describes the location of the proposed project as "landward of the 30-year erosion projection and the existing line of construction established by major structures in the immediate area [the Continuous Line of Construction]." Id. While the application was pending before DEP, Ms. Pope visited the offices of the Department in Tallahassee several times. During the first visit (June 23, 2003), Ms. Pope reviewed the permit file and met with Mr. Tamisetti. At one point in the meeting, Ms. Pope asked Mr. Tamisetti how he determines the existence of Continuous Construction Lines. Ms. Pope testified at hearing that Mr. Tamisetti's answer was to the effect that "we look at a thousand feet on either side of the proposed structure." (Tr. 20). These were not necessarily Mr. Tamisetti's exact words but it is clear from the record that the substance of Ms. Pope's claim of what was said is correct; Mr. Tamisetti told Ms. Pope that the Department uses a thousand-foot distance on either side of a proposed structure in order to determine whether existing structures have established a Continuous Line of Construction seaward of the CCCL. The Rule Among the rules in the chapter for which Section 161.053 served as the sole specific authority is Rule 62B-33.008 (the "Rule"). It bears the catchline "Permit Application Requirements and Procedures." The Petition of Ms. Pope in Case No. 03-3860RX challenges subsection (d) of Section (4) of the Rule: (4) Any person desiring to obtain a permit for construction seaward of the coastal construction control line (CCCL) . . . from the Department . . . shall submit two copies of a completed application form. * * * The application form shall contain the following specific information: * * * (d) Written evidence, provided by the appropriate local governmental agency having jurisdiction over the activity, that the proposed activity, as submitted to the Office, does not contravene local setback requirements, zoning, or building codes and is consistent with the state approved Local Comprehensive Plan. Fla. Admin. Code R. 62B-33.008(4)(d). The Rule implements Section 161.052, "Coastal construction and excavation; regulation" as well as Section 161.053. Petitioner contends that the quoted portion of the Rule should be determined to be invalid because, while the statute directs that DEP in issuing permits of the kind obtained by the Rays "shall not contravene" local setbacks and building and zoning codes, it does not authorize DEP "to rely upon a letter mailed to an applicant from someone employed by an "appropriate" local government to prove that an activity would comply with the statutory directive." Proposed Final Order submitted by Petitioner, p. 18. As pointed out by Ms. Pope in her Proposed Final Order, DEP does not maintain nor does it require applicants for permits related to activity seaward of a CCCL to submit comprehensive land use plans, local setback requirements, zoning or building codes of counties and municipalities along Florida's coast. Instead, as sanctioned (in fact, required) by the Rule, DEP allows applicants to submit written evidence provided by the local government that the proposed activity does not contravene the enumerated regulations and is consistent with the local comprehensive plan. The parties have stipulated that the Department has not delegated its permitting authority under Chapter 161, Florida Statutes, to Brevard County. The Statement The statement made by Mr. Tamisetti (the "Statement") is similar to one he has made many times over the course of his employment with the Department. Without reservation, Mr. Tamisetti testified as much at hearing. The Statement has been interpreted as DEP's common method of prescribing lines of continuous construction by at least one member of the public. A professional engineer who conducts coastal engineering analysis, opined in writing to one of his clients that: The DEP has commonly prescribed the "line of continuous construction" by the line established by the average seaward limits of the foundations of the structures within 1000? feet north and 1000? feet south of the subject property or the seaward limits of the most seaward structures within 1000? feet north and south of the subject property Petitioner's Ex. 14, p. 1 following the cover letter. Mr. Tamisetti maintained at hearing, however, that the statement he made to Ms. Pope was not a common method for determining a Continuous Construction Line. Rather, the Statement constituted a starting point for those who inquired about how such lines were determined to exist. The Department does not contend otherwise. In the Pre-hearing Stipulation executed by all parties, the Department's position with regard to the Statement of Mr. Tamisetti is found on page 4: "The statement [that DEP uses a 1000-foot distance on either side of a proposed structure to establish a Continuous Line of Construction] is merely a guideline to allow applicants and their engineers a starting place for providing the Department information regarding the line of construction." The reason for the Statement was discussed by Mr. Tamisetti in his testimony. When a concerned party poses the question of how DEP would determine a Continuous Line of Construction as to a certain site, the question can only be definitively answered by asking questions of that party, in turn, and requesting sufficient data. Responding might entail costs prohibitive to the party. "A thousand feet" is offered as "a starting point . . . to give them something" (tr. 61) as an estimate for whether to pursue the effort to have such a line established. In one project, Mr. Tamisetti offered, the distance from a proposed structure to an existing structure might be "500 feet"; in another "2000 feet." (Tr. 61, 62). Ultimately, Mr. Tamisetti insisted the determination is site specific and cannot be made across the board on the basis of a measurement of 1000 feet. The Permit's Relationship to the Statement Ms. Pope produced evidence of the location of a Continuous Line of Construction determined by DEP to exist for purposes of the Ray's permit, DEP Permit No. BE-1083. She concludes in her proposed final order: [T]he line that DEP depicted approximates the line that would be derived by drawing a line from existing structures within 1000 feet on either side of the structure proposed in BE-1083. (citation to record omitted) The derivation of the line of continuous construction can only be a result of using the foundations of building within 1000-feet on either side of the proposed Michelina Condominium, as readily seen on the DEP April 2002 aerial photograph . . . Proposed Final Order, submitted by Petitioner, p. 8. Furthermore, Ms. Pope points out DEP has two rules relevant to the interrelationship between the permit and her claim that the Statement is a rule in violation of Section 120.54(1)(a), Florida Statutes. Florida Administrative Code Rule 62B-33.005(4), in her view, requires that applications for permits to conduct activity seaward of a CCCL "be 'clearly justified' by the applicant." Id. "Secondly," she asserts, DEP has an existing rule that requires applications to include surveys that depict accurate dimensions and locations of the foundation outlines of any existing structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line. Rule 62B- 33.008(4)(f)15, F.A.C. Id., at 8-9. These rules relate, obviously, to the Permit Case. Coupled with the location of the Continuous Line of Construction determined by DEP with regard to the Rays' application for purpose of the un-promulgated rule challenge, however, they do not overcome other evidence as to how the Bureau determines the existence of Continuous Lines of Construction seaward of CCCLs. That evidence is the testimony of Mr. McNeal, the head of DEP's Coastal Construction Control Line Program. The Testimony of Mr. McNeal Ms. Pope's claim that the only credible evidence in the case demonstrates that the Statement is an un-promulgated rule overlooks convincing credible evidence provided by Mr. McNeal. Mr. McNeal's testimony shows that the Statement is not reflective of a policy followed by DEP that creates rights or imposes duties upon the regulated. It is not reflective of a policy of the Bureau of Beaches and Wetland Resources that does so either. Nor is it reflective of such a policy of the Bureau's Coastal Construction Control Line Program. As explained by Mr. McNeal, if an applicant would like to build on a Continuous Construction Line seaward of the CCCL, the applicant typically must demonstrate that the Continuous Construction Line exists by data provided with the application. Petitioner's Exhibit 7, entitled "Request for Additional Information" was identified by Mr. McNeal at hearing as "a template for our standard information package that comes with the application." (Tr. 40). "The items of information listed [on the request] are numbered to correspond with the item numbers on the application form." Petitioner's Ex. 7, p. 1. The following appears under Item 9: Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of application. The topographic survey drawing shall include the following specific information: * * * - Accurate dimensions and locations of the foundation outlines of any existing structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of 161.053(5)(b), . . . Florida Statutes . . . (Id., pps. 2-3). There is no reference to the "1000 feet" measurement in the Bureau's Request for Additional Information. Furthermore, when an application is submitted that is incomplete with regard to the location of existing structures, the Department does not always resort to a request for additional information. The Department has an extensive database that includes aerial photographs, GIS images, and topographic information collected with regard to DEP reference monuments spaced along the shoreline. On occasion, the DEP database is sufficient to determine whether such a line exists without additional information provided by the applicant. When a determination of a Continuous Line of Construction is made by DEP, it is made specific to the site of proposed construction on the basis of the information submitted by the applicant or on the basis of publicly held data. The determination is not made on the basis of Mr. Tamisetti's statement to Ms. Pope or on the basis of unwritten policy related to existing structures within 1000 feet of the proposed structures. A Rule of Thumb for Prospective Applicants Mr. McNeal's testimony sheds direct light on the actual practice of DEP and the Bureau of Beaches and Wetland Resources in determining the existence and location of Continuous Lines of Construction. When the Petitioner's case is measured against the Department's, the best for Petitioner that can be said of the Statement is that it is precisely what Mr. Tamisetti claims. It is a "rule of thumb," and a rough one at that, for whether it is worthwhile for a party to pursue the establishment of a Continuous Construction Line in order to conduct activity, including construction, seaward of an established CCCL. It does not constitute an agency statement of general applicability that meets the definition of a "rule" in the Administrative Procedure Act and that is subject to the Act's rule-making requirements.
The Issue The issue in this case is whether a beach house petitioners plan to build in south Walton County was already under construction, within the meaning of Section 161.053(7), Florida Statutes (1981) and Rule 16B-33.04(1), Florida Administrative Code, at the time the current coastal construction control line took effect there.
Findings Of Fact In October of 1982, the petitioners acquired a lot in south Walton County, on the north shore of the Gulf of Mexico. Even before the purchase, Mr. Wiese had been in touch with respondent's personnel, who apprised him of the imminence of the adoption of the new (now current) coastal construction control line, at that time already proposed for Walton County. The former coastal construction control line was considerably seaward of the current line, which became effective on December 29, 1982. Petitioners, who have built some seven houses, drew plans for a house to be built on their Walton County lot one foot landward of the old coastal construction control line. They applied for and obtained the necessary county building permit. They contracted for grading on site, which took place on November 27, 1982. In the course of this work, the landward face of the sand dune was disturbed and petitioners realized that, if they were to build so close to the water, a wall or something like a wall would have to be erected and buttressed to keep the sand dune from migrating under or into their beach house. They determined that the plans were inadequate as drawn. Mr. Wiese nevertheless arranged for one Al Christopher to bring two poles to the site and place one of them upright in the sand. When asked at hearing how long the two poles Mr. Christopher delivered to the site were, Mr. Wiese said he did not know. After Mr. Christopher began, petitioners did not ask him to desist either with bringing pilings to the site or with placing them in the ground. Mr. Christopher evidently did what he was asked to do, before he ever began working with the poles. Before the single pile was placed, batter boards were used to locate the perimeters planned for the building. Batter boards are temporary markers which are removed once the foundation is in place. In constructing piling foundations for beach houses along the gulf coast, in this part of Florida if not elsewhere, the ordinary sequence is to bring all foundation piles to the site before bringing the equipment necessary to install all the piles at once. This makes for efficient use of expensive machinery, and is virtually always done. One of the Wieses' neighbors, fearing that the new coastal construction control line would take effect last fall arranged for a single pile to be driven, but his project was well underway by the time the new coastal construction control line did in fact take effect. As late as March of this year, Mr. Wiese checked with a Texas supplier to see if foundation piles would be available for the project. The plans drawn before the grading of November 27, 1982, called for a foundation of 37 piles, each of which was to be 45 feet long. No horizontal members nor bracing of any kind was contemplated for the foundation. The foundation piles were to be put so close together that it would have been impractical to bring heavy equipment in to do the grading after they were in place. The idea in leveling the ground was to prepare it so a concrete slab could be poured to serve as a parking surface underneath the beach house. Under both the plans originally drawn and the plans under which petitioners now hope to proceed the parking surface itself is not expected to have a structural function, Mr. Wiese's testimony to the contrary notwithstanding. Once petitioners were persuaded that the project needed "reengineering," they diligently sought out expert assistance and new foundation plans were eventually drawn to their satisfaction. Petitioners' efforts took place on a regular, if not a daily basis, but consisted in large part of finding the right people for the "reengineering" job. The plans which petitioners propose to use were stamped with the final engineer's seal on March 3, 1983, more than two months after the current coastal construction control line took effect.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioners' beach house project grandfathered status, and apply the coastal construction control line adopted for Walton County on December 29, 1982, in any agency action regarding the project. DONE and ENTERED this 22nd day of August, 1983, Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August 1983. COPIES FURNISHED: Joseph C. Jacobs, Esquire John C. Pelham, Esquire and Melissa Fletcher Allaman, Esquire ERVIN, VARN, ODOM & KITCHEN Post Office Box 1770 Tallahassee, Florida 32322-1170 Deborah A. Getzoff, Esquire Suite 1003 Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Executive Suite 3900 Commonwealth Building Tallahassee, Florida 32303
Findings Of Fact Petitioners, Larry C. and Jan D. Giunipero, reside at 2345 Tour Eiffel Drive, Tallahassee, Florida. On February 29, 1984, they obtained a building permit from Franklin County to construct a single-family dwelling on their lot in Alligator Point, Franklin County, Florida. The Giuniperos engaged the services of a professional engineer to design their beach house. In so doing, the engineer designed the structure so as to comply with the Federal Emergency Management Association (FEMA) guidelines, which are minimum building requirements established by the Federal Insurance Administration to qualify for federal flood insurance. These guidelines have been adopted by the Franklin County Planning and Zoning Department, and insure that the structure can withstand winds of 110 miles per hour. Even before the Guiniperos obtained their permit, respondent, Department of Natural Resources (DNR), was in the process of adopting new Rule 16B-26.14, Florida Administrative Code, which would establish a coastal construction line for Franklin County. Under the proposed rule, a coastal construction control line on Alligator Point would be established, and any excavation or construction activities thereafter on property seaward of the control line would require a permit from DNR, and have to be in conformity with all structural requirements set forth in Rule 168-33.07, Florida Administrative Code. Because the Guiniperos' lot lies on the seaward side of the control line, they were obviously affected by the rule. The rule adoption process was quite lengthy and well publicized. It began in October, 1983 when a public workshop was held in Apalachicola and aerial displays of the control line were placed in the courthouse. Further public hearings were held in Tallahassee in February, March and April, 1984. These hearings were the subject of numerous notices and advertisements in the Florida Administrative Weekly, Tallahassee Democrat, Apalachicola Times, Panama City News Herald, and Franklin County News. Clearly, the agency met all legal requirements in advertising the rule. However, for some reason, neither the Giuniperos or their professional engineer were aware of the pending rule change. Similarly, the Franklin County planner failed to advise them of the imminent rule change even though aerial displays of the proposed line were in the courthouse when the permit was issued. Rule 168-26.14, Florida Administrative Code, was adopted by the Florida Cabinet on April 5, 1984, and eventually became effective on April 30, 1984. As of that date, any construction or excavation work seaward of the control line required DNR to issue a permit unless a dwelling was already "under construction" in which case the project was grandfathered in. The parties agree that petitioners do not fall in this category since the dwelling was not "under construction" within the meaning of DNR rules. A few days before the rule became effective, a DNR engineer met with the Franklin County planner to review all building permits issued since September, 1983 for construction on the seaward side of the control line. The engineer did this so that he could inspect all building sites after the line became effective and determine which, if any, were "under construction" and therefore exempt from DNR permitting requirements. Because of the volume of permits issued to persons seeking to beat the April 30 deadline, and his unfamiliarity with alligator Point, the planner was unable to give the DNR engineer the precise location of petitioners' lot. On or about May 1, 1984, the engineer visited the general locale of petitioners' lot. There was no activity on petitioners' lot, and no permit posted on the site. Accordingly, he assumed a recently completed beach house some 300 feet east of petitioners' lot was actually the Giuniperos' house. Since it was already completed, he merely filed a report the following day indicating that "if the location referenced above is accurate, the structure appeared to be completed at that time." On July 6, 1984, petitioners proceeded to install twenty-three 8" by 8" pilings on their lot at a cost of $1,760. DNR discovered this construction activity a few days later and notified petitioners by telephone that such activity was illegal without a permit. A formal cease and desist order was sent on July 11, 1984, and no activity has taken place since that time. An application for a permit remains in abeyance pending the outcome of this proceeding. The structural requirements of DNR are more stringent than those previously required by Franklin County and FEMA. Indeed, the FEMA guidelines are not a part of a coastal construction regulatory program but are merely minimum standards to meet federal flood insurance criteria. Therefore, while the Guiniperos' proposed dwelling is designed to withstand a windload of 110 miles per hour DNR requires a structure to meet a windload of 140 miles per hour. DNR also recommends that larger and more expensive pilings be used, and that the structure be designed to adequately resist a 100 year return interval storm event. Because the DNR requirements are more stringent, petitioners estimate they will incur total costs of $8,890 just to pull out the old pilings and install larger ones. 1/ Additional costs may be incurred to redesign and build the structure to withstand a wind velocity of 140 miles per hour. By rule, DNR does not grant a waiver of its permit requirements except where a building is already constructed and an applicant desires to make "minor additions" to existing nonconforming structures. The Giuniperos do not qualify for such a waiver.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioners' request for a waiver from the permitting requirements of Rule 16B-33.07 be DENIED. DONE and ORDERED this 11th day of March, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 11th day of March, 1985.
Findings Of Fact On September 23, 1983, Hollywood submitted a permit application to DNR for construction of the proposed project which is the subject matter of this proceeding. DNR designated that permit application as Permit Application 50-41. The proposed project is actually the first phase of a two-phase project, Phase II of which has already been permitted by DNR. Phase I, which is the subject of Permit Application 50-41, consists of an extension of existing Surf Road in the City of Hollywood, an extension of an existing asphalt boardwalk, construction of a parking area with landscaped island, swale, and associated lighting. The excavated fill removed from the site of Phase I is to be used in the construction of a dune which is encompassed within Phase II of the project. The properties on which Phase I and Phase II are to be constructed are owned by the City of Hollywood and are located seaward of the Coastal Construction Control Line and landward of the Erosion Control Line. The Summit Condominium is a condominium development located west of South Surf Road in the City of Hollywood, and is directly adjacent and contiguous to the property upon which the aforementioned project is to be constructed. Petitioner is the builder and developer of the Summit Condominium and, in addition, is the fee simple owner of approximately 15 units in that development. Phase I of the proposed project, which is the permit application at issue in this proceeding, provides for the construction of a 121-space public parking area which will be approximately 62 feet wide and 605 feet long, and will extend approximately 95 feet seaward of the Coastal Construction Control Line. The parking lot will be constructed with a six-inch limerock base over a six-inch crushed limerock subbase, and will be surfaced with a one and one-half- inch asphalt wearing course. The parking lot is designed with a definite landward slope, so that stormwater will sheet flow across the parking lot away from the dune system. There is no evidence of record in this proceeding which would in any way justify a conclusion that stormwater runoff from the parking lot area will have any adverse effect on the dune system seaward of the lot. Stormwater runoff once it has left the parking lot surface will be collected in a swale and drainage ditch system located landward of the paved parking lot surface. The drainage ditch will be composed of sandy material presently located on the site and is designed on a 1.2 to 1 slope. In addition, Wedelia is to be planted in and around the drainage ditch system in order to stabilize the slopes of the ditch. The ditch and swale system is designed to allow most stormwater runoff to percolate into the soil, with any excess being collected in the ditch itself and transmitted in a northerly direction. A drainage calculation study prepared in conjunction with this proceeding demonstrates that the drainage capacity for the proposed ditch meets minimum standards contained in the South Florida Building Code, as applied by the City of Hollywood. As the ditch fills with stormwater, the water will flow in a northerly, shore parallel direction to Jefferson Street, which is located north of both the proposed project and the Summit Condominium. From Jefferson Street, runoff from the project site will flow westerly to Highway A-1-A where an existing stormwater sewer system is located. If for some reason that system proves insufficient to handle runoff, the runoff will then travel across A-1-A into the intracoastal waterway. There is no competent evidence of record in this proceeding to demonstrate that stormwater runoff from the project site will, under any conditions, flow onto Petitioner's property. Phase I of the project has been designed to minimize the potential for the creation of aerodynamically or hydrodynamically propelled missiles in the event of a major storm. The asphalt surface of the parking lot is designed to break into chunks which will settle into the sand or water when exposed to wind and water forces. The parking meters are set four feet into the ground which reduces their potential to act as missiles, but even should the beach recede to the point where the meters are installed, evidence of record in this proceeding establishes that they will fall to the base of the eroded dune wall and will be washed out to sea rather than be propelled shoreward either by water or air. Various storm surge computer models for pre- and post-construction conditions at various locations on the property were performed. The result of these models shows that there will be no difference in impact on the beach dine system and adjacent property between the pre- and postconstruction profiles in the event of a ten-year storm. Further, computer models actually showed that there will be less erosion for the post-construction profile than for the preconstruction profile in the event of a twenty-year storm surge. In the event of a fifty-year or greater storm event, the beach profile for both pre- and postconstruction in the project area would be inundated, so that the impact of such a storm will be the same with or without the proposed construction. Evidence of record does, however, establish that based upon postconstruction conditions as proposed in the permit application it would take a greater storm to erode material from the postconstruction profile, thereby establishing that the proposed project will afford greater protection than existing topography. It appears from the record in this proceeding that Hollywood's Permit Application 50-41 is complete, and that DNR has in its possession all information necessary and required by law for the processing of the permit application. Engineering plans submitted in support of the application for Phase T have been signed and sealed by a professional engineer registered in the State of Florida.
Recommendation RECOMMENDED That a Final Order be entered by the State of Florida, Department of Natural Resources, granting the requested permit. DONE AND ENTERED this 25th day of October, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1983. COPIES FURNISHED: Steven L. Josias, Esquire Donald J. Dooty, Esquire 3040 East Commercial Boulevard Fort Lauderdale, Florida 33308 Deborah A. Getzoff, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Leonard Lubart, Esquire Post Office Box 2207 Hollywood, Florida 33022 Elton J Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303
