Findings Of Fact On 24 July 1979 the Board of County Commissioners of Palm Beach County adopted Resolution R-79-887 petitioning the TIITF to establish an erosion control line (ECL) extending from South Lake Worth Inlet to the northern city limits of Delray Beach in conjunction with a beach restoration project in the same area. The project as then proposed encompassed extension of the south jetty at the Inlet 170 feet, construction of eight groins at 400-foot intervals commencing just south of the Inlet, and widening the beaches by 500 feet with 150 feet above the mean high water and 350 feet below mean high water, for a distance of approximately 4.8 miles. The restoration project is proposed to be accomplished with sand from a borrow area located approximately one-half mile off shore. The project is designated "Ocean Ridge-Briny Breezes" beach restoration project. SLWID objected to the project and, following conferences between Palm Beach County, SLWID and DNR the County amended its project to exclude property owned by SLWID from the ECL and beach restoration projects with the restoration of the beach to commence 300 feet south of the Inlet and continue for 2.6 miles to the town of Briny Breezes. Extension of the jetty and installation of groins were deleted. Palm Beach County's proposed beach restoration project was authorized by the U.S. Congress and the U.S. Army Corps of Engineers in House Document 164 (Exhibit 5). The proposed "Ocean Ridge-Briny Breezes" beach restoration project was designed in accordance with the criteria set forth in Exhibit 5. The project is designed to restore the severe beach erosion that has occurred in the 2.6-mile project area and to provide the affected uplands protection against the ten-year design storm event. The ten-year design storm event implies a 3.8-foot storm surge with up to eight-foot waves superimposed thereon. The proposed ECL has been surveyed by Palm Beach County along the mean high water line in the proposed area. Over 60 percent of the ocean front property owners have approved the establishment of the ECL in conjunction with a beach restoration project by executing letters of consent. Following notice by DNR a public hearing was held on February 13, 1980, to receive evidence relative to the necessity and propriety of the proposed beach restoration project and the proposed location of the ECL. The Hearing Officer's report (Exhibit 28) concluded that there is a definite need to restore the proposed area where severe beach erosion has occurred and the establishment of the ECL would accomplish the purpose stated in Section 161.161, Florida Statutes. Approval of the project was recommended. The staff of DNR approved the project and prepared the agenda item for the next meeting of the TIITF in which this project was to be considered for final approval. Prior to this meeting of the TIITF, SLWID filed its initial Request for Formal Proceeding and the item was removed from the TIITF agenda and referred to the Division of Administrative Hearings. The beach erosion in the project area has been documented by Palm Beach County, DNR and the U.S. Army Corps of Engineers. Much of the erosion in the northernmost mile of the project has involved the beach above high water, as well as the offshore beach, while the erosion in the southern 1.6 files of the project has predominantly been offshore. During the period 1955-1981 approximately 1.6 million cubic yards of sand has been lost in the project area. Beach erosion determinations are made by calculating both onshore and offshore changes in the beach profile. Significant offshore erosion will lead to onshore beach recession by storm-generated waves. A gradually sloping beach is a natural absorber of wade energy and the most effective. Since maximum wave height is a function of the depth of the water, waves rapidly dissipate when they reach shoal water. With offshore erosion and the resulting deeper water near the shore, incoming waves can be higher and will impact on the upland area with greater force than would occur with a gradually sloping beach. There is a net annual littoral drift of 200,000 cubic yards of sand southward in the project area. Prior to the construction of the Inlet this drift replaced sand lost during storms, thus creating a dynamic beach which receded and was augmented from time to time. The installation of the jetties disrupted this littoral flow and caused the sand to build up on the beach north of the jetty while starving the beach south of the jetty. This problem was partly corrected by the erection of a sand transfer plant on the north jetty which pumped some of this sand across the Inlet to the beach south of the Inlet. The sand transfer plant was not operated during WWII due to the fuel shortage and severe erosion occurred in the project area. Following WWII the sand transfer plant was replaced in operation, sand was dredged from the Inlet and deposited on the beach south of the Inlet and the beach in the project area was largely restored. In 1967 the north jetty at the Inlet was extended and the sand transfer plant was moved eastward some 130 feet. This plant is a fixed plant consisting of a suction line on a boom which dredges sand to be pumped south of the Inlet only from the area that can be reached by the boom. Although capacity of the plant is adequate to pump the sand needed to replace in the project area that sand intercepted by the jetty, due to the limitation of the plant to reach a larger area there is insufficient sand available for the plant to pump to capacity. As a result, even if the plant operated all the time and there was sand available to pump, there would still be a net loss of sand in the project area (Exhibit 21). During recent winter storms property-threatening beach erosion has occurred to beach property in the project area. Some of the property owners have erected bulkheads and seawalls and others are proceeding with plans to do so. In some places in the north portion of the project area there is no exposed beach at high water. In the southern portion of the project area the offshore erosion will, if left to continue, result in severe damage and loss of upland beach if impacted with seas commensurate with a ten-year design storm event. This erosion, both on and offshore, will, if uncorrected, result in a calculated total of 134 feet of beach recession for the ten-year design storm event. This could result in the inundation of S.R. A1A, which runs near the beach in the northern portion of the project area. S.R. A1A is the primary north-south highway east of the Intracoastal Waterway and the evacuation route to the bridges to the mainland in the event evacuation of the beach is necessary in a hurricane situation. The proposed beach restoration project is designed to replace sand lost offshore and onshore erosion in the the project area and provide a sloping beach to absorb wave impact. It will not accelerate erosion. The proposed restoration of the beach will protect property and structures in the project area against the forces associated with a ten-year design storm event. Addition of the 1.5 million cubic yards of sand in the project area will result in some sand infiltration of the Inlet. This was calculated at 8,000 cubic yards the first year, 6,000 cubic yards the second year and 4,000 cubic yards per year thereafter. This will result in insignificant shoaling in the Inlet but will require infrequent maintenance dredging. It will not adversely impact the tidal prism in the Inlet or materially increase the maintenance of the Inlet. Heavy storms result in immediate loss of sand from the upland beach. Most of this sand is deposited in the offshore beach and is returned to the upland beach by the normal action of waves and tides. Approximately ten percent of the sand so removed from the upland beach is not returned but is lost.
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 Whether, pursuant to Part I of Chapter 161, Florida Statutes, and Florida Administrative Code Rule 62B-33, Respondent, Eric M. Flanagan (Flanagan), is entitled to construct a single-family dwelling seaward of the Coastal Construction Control Line (CCCL).
Findings Of Fact The Parties Eric M. Flanagan owns an undeveloped lot (Lot R-3) (the Property) at 530 Gulf Lane, North Captiva Island, Lee County, Florida. The easternmost 25 feet of Lot R-3 contains a road easement (Gulf Drive). (Gulf Drive is also referred to as Gulf Lane.) Gulf Drive is an unpaved, sandy roadway/trail which runs south to north. The westernmost boundary of the Property is the Gulf of Mexico. Lot R-3 is vacant. All of Lot R-3 is seaward of the CCCL. Steven D. Huff (Huff) owns a single-family residence at 531 Gulf Lane, North Captiva Island, Lee County, Florida, which is adjacent to and immediately across Gulf Drive to the east (landward) of Flanagan's Property and the proposed project. Dion DeLoof (DeLoof) owns a single-family residence at 541 Gulf Lane, North Captiva Island, Lee County, Florida, which is adjacent to and immediately across Gulf Drive to the southeast (landward) of the Property and the proposed project. The Department is the agency responsible for administering the program for construction activities seaward of the CCCL pursuant to Part I of Chapter 161, Florida Statutes, and Florida Administrative Code Rule 62B-33. The Application and Department Review On October 2, 2003, Lawrence E. Hildreth, P.E., on behalf of Flanagan, filed an application with the Department, for a permit for construction seaward of the CCCL or 50-foot setback.1 On October 2, 2003, the Department also received two boundary surveys for the Property, with and without the location of the proposed dwelling. (One boundary survey is signed by Ted B. Urban, a professional land surveyor, and dated August 21, 2003, and received by the Department on October 2, 2003. Several other floor plans were provided on sheets G and 1 through 6. Fifteen concrete pilings are shown on the "ground floor plan," sheets 0.1 and G.) A letter dated September 5, 2003, advised that the Lee County Zoning Staff reviewed the Flanagan project and determined that it "currently does not contravene zoning codes and is generally consistent with the Lee County Land Development Code." On October 27, 2003, the Department advised Mr. Hildreth that the application was incomplete, including the need for two copies of a topographic survey drawing of the Property, showing, in part, the location of the erosion control line, contour line corresponding to elevation 0 (NGVD), and the location of the seasonal high-water line in relationship to the CCCL. See Fla. Admin. Code R. 62B-33.0081. The Department advised that "[i]n order to get a favorable recommendation, the proposed project has to be landward of the line of construction, 30-year erosion projection and sufficient distance landward of the top of the dune." By letter dated April 21, 2004, and received by the Department on April 23, 2004, Mr. Hildreth responded to the Department's October 27, 2003, letter and provided the Department with topographic surveys showing, in part, the location of the proposed project, the high water line, approximate seasonal high water line, approximate vegetation line, flood zone line, contours at various elevations from the high water line landward to Gulf Drive, and the applicable CCCL. The submitted site plan, showing this information, was prepared by Mr. Urban and dated March 24, 2004. See also FE 3. Mr. Urban also prepared a boundary survey, which included most of the information set forth on the site plan, but also included, written by hand (although the author is not known), a notation of the location of the "30-year erosion projection," which was designated to be "121 feet" seaward of the approximate location of the old CCCL. Mr. Hildreth also submitted other drawings, designated "not for construction," sheets 01 through 11. Mr. Hildreth represented in his April 21, 2004, letter that "[t]here is no excavation or fill proposed except for the installation of the septic tank" and that "[a] landscape drawing is not provided as the existing site vegetation is being retained except for under the house and over the septic system." On or about April 29, 2004, the Department's Srinivas M. Tammisetti, P.E., requested Jennie Cowart, Field Engineer, to provide a site inspection report and current photographs of the project site. It appears that the Department considered the application complete as of April 23, 2004. The Department's file contains a three-page "Site Inspection Report" dated June 4, 2004, apparently prepared by Jennie Cowart, who did not testify in this case. There is a description of the proposed construction area and beach dune system as follows: This site is adjacent to the dune system and beach area. This vacant lot is 2 lots south of LE-1024 (which required a variance to build seaward of the old CCCL. LE-1024 has a Notice to Proceed but has not been started. There are no existing structures in the general vicinity north and south of this lot on the seaward side of Gulf Lane (a sand path). The dune system here is well established with a primary and secondary dune. There are no existing dune walkovers nearby. The location of the proposed septic [sic] is not shown on the reduced site plan. But the road easement is shown along the landward side of the proposed house; therefore, the septic [sic] would have to go on the seaward side of the structure. If this is the case, the septic [sic] would be within the coastal scrub and dune area. The proposed structure may have an adverse affect on the dune system from lighting (if not in strict compliance) and from the septic system. Construction fencing would be needed to protect the vegetated dune. A vegetation analysis is provided in the Site Inspection Report and percent-coverage, and natural conditions are also identified for specific types of vegetation. Vegetation comments are also provided: "The area within the building footprint is mostly mature seagrape, sabal palm, and woody coastal species. There are some large pepper trees near the road. The coastal scrub area is approx 75' wide with a series of dunes. There is no clear existing path to the sandy beach." There are four photographs attached to the report which are difficult to read. The Department's file also contains a "memo to file" dated June 16, 2004, from Emmett Foster, P.E., Florida State University Beaches & Shores Resource Center, with the subject being "[r]eview of 30 Year Erosion Estimate, R-69 to R-70 Vicinity, Lee County." Mr. Foster was asked by Department staff to review the erosion situation between Department reference monuments R-69 to R-70. (The Property is between approximately 180 to 255 feet south of R-69.) Mr. Foster stated in his June 16, 2004, memorandum: "A review of the erosion situation has been preformed, as requested. The recommendation remains as described in the previous 4/28/92 memorandum for this area, copy attached with an updated mhw data table and copies of profile plots." Mr. Foster is referring to a Memorandum dated April 28, 1992, from him to Mr. McNeal providing erosion information for the area between R-69 to R-70, in which Mr. Foster ultimately recommended using the most landward shoreline Mean High Water Line (MHWL) and Seasonal High Water Line (SHWL) of record, the 1982 Department of Natural Resources (DNR) survey as the 30-year erosion projection. See JE 1, April 28, 1992, Memorandum and attached data for Mr. Foster's analysis of the area. See also Endnote 4. (Mr. McNeal testified during the final hearing that he used this information to establish the 30-year erosion projection line.) On July 12, 2004, the Department received a revised site plan dated July 9, 2004, prepared by Mr. Urban, showing the location of a proposed septic tank, seaward of the proposed dwelling. See also FE 4. This is not the permitted location of the septic tank and drain field. See JE 1, Final Order. On or about June 20, 2004, Mr. Tammisetti prepared a memorandum to Mr. McNeal describing, in part, the proposed project. Mr. Tammisetti provided a general description of the beach/dune system: "Subject property has low ground elevation and appears to have viable dune and coastal strand/scrub vegetation. The segment of shoreline is unarmored and sparsely developed. It is subject to random fluctuations due to the effects of offshore shoals. Hence this shoreline experience is both erosion and accretion." He further stated: "Recommended location of 30-year erosion projection is the most landward (MHWL and SHWL) shoreline of record." See Finding of Fact 14. He indicated that the seasonal high water elevation is plus 3.8 feet (NGVD). The Department had permitted two previous projects in the area: LE-707, which was issued and expired in 2000, but was never built, and LE-1024 (the Duboy lot), which was issued a notice to proceed, but has not yet been built. Mr. Tammisetti determined that the "[p]roposed project is landward of line of construction and 30-year erosion projection. Impactive shore- parallel coverage is approximately 80%. Proposed project is sited sufficient distance landward of MHWL, SHWL, vegetation line and frontal dune." Mr. Tammisetti recommended approval of the project with special permit conditions. On or about July 28, 2004, Mr. Hildreth provided the Department with a vegetation map created by Geza Wass de Czege. The vegetation map is for the Property and is dated March 13, 2003. T 32-37. See also FE 6 which is the same map with better clarity. This map (FE 6) provided a description for 0.47 acres of the Property from the shoreline to Gulf Drive as follows: CODE DESCRIPTIONS ACRES 652 Shoreline Beach 0.10 312 Coastal Herbaceous Dune 0.10 322H Coastal Herbaceous Scrub 0.12 322C Coastal Scrub w/Cabbage Palm 0.11 8145 Graded Golf Cart Road 0.04 TOTAL 0.47 On August 2, 2004, the Department issued a "Notice to Proceed Withheld," indicating that the Department approved a permit for construction or other activities seaward of CCCL for Flanagan. The Department noted, however, that "construction may not commence until after the permittee has received a notice to proceed in accordance with Special Permit Conditions 1, 2, 3, 4 and 5, and permittee complies with any preconstruction requirements described in Special Permit Conditions 6." On August 2, 2004, the Department also issued a Final Order with Findings of Fact and Conclusions of Law. This Final Order providing conditions including requirements that the single-family dwelling be located a maximum of 200 feet seaward of the CCCL and constructed of a pile foundation; and have a 900-gallon septic tank and drain field such that "[t]he onsite disposal system's septic tank and chamber pipes located a maximum of 220 feet seaward of the control line" with "[c]onstruction limits located a maximum of 225 feet seaward of the control line." Flanagan was also required as a special permit condition to provide "[a] landscape and dune restoration plan depicting the mitigation of construction impacts to native salt tolerant vegetation." Special Condition 2 also provided: Prior to issuance of the notice to proceed, the permittee shall submit for approval a landscape plan to minimize and mitigate construction impacts to dune vegetation. Existing dune vegetation shall be disturbed only to the minimum extent necessary to complete work within the authorized construction limits and shall be protected by rigid construction fences. As determined to be feasible by the Department and prior to commencement of construction activities, native vegetation within the authorized construction limits shall be transplanted to suitable bare areas seaward of the control line. Transplanted vegetation shall be maintained, irrigated and/or fertilized to ensure a 75% survival rate for a minimum of one growing season. The permittee shall plant a mix of a minimum of three native salt-tolerant species within any disturbed areas seaward of the authorized structures. These plantings shall consist of salt- tolerant species indigenous to the native plant communities existing on or near the site or with other native species approved by the Department. Sod composed of non-native grasses is not authorized seaward of a major structure or decks. Planting in other areas of the project site shall not include invasive nuisance plant species such as listed in the Florida Exotic Pest Plant Council's May 2003 List of Invasive Species Category I and II. On September 20, 2004, Mr. Hildreth filed with the Department two sets of revised plans, as well as a copy of an affidavit of publication of the Department's intent to issue the CCCL permit. The Property Description The Property is located on North Captiva Island, an unbridged barrier island, bounded on the west by the Gulf of Mexico and on the east by Pine Island Sound. North Captiva Island is bounded by Captiva Pass to the north of the Property and Redfish Pass to the south, both of which are unstabilized, dynamic inlets. The shorelines adjacent to and between these unstabilized inlets experience higher rates of erosion and accretion than would a normal shoreline not affected by such an inlet. See generally PE 5 for a 2004, post-Hurricane Charley aerial.2 See also PE 7, updated April 2005, Department report showing, in part, area between R-69 and R-70 as "critically eroded" at 69 and 71. The Property is approximately 75 feet wide (parallel to the shoreline). The depth of the Property as of the July 9, 2004, Urban site plan, was approximately 276 feet on the north and 262 feet on the south, with each boundary extending from the eastern edge of the Property seaward to the MHWL. T 22. The Property accreted approximately 20 feet since November, 2004, and after Hurricane Charley. Stated otherwise, the MHWL moved to the west approximately 20 feet. (According to Mr. Urban, as of a week before the final hearing, the north line was 282 feet and the south line was 274 feet. T 27.) Elevations on the Property range from 1.2 feet at the MHWL to 10.0 to 10.5 feet at the project footprint and at the eastern boundary of the Gulf Drive easement, and 9.6 feet at Gulf Drive. The following relevant elevations, from the Gulf of Mexico to Gulf Drive, are portrayed on the site plan (FE 4): approximate SHWL -- 3.8 feet; approximate vegetation line -- 6.0 feet; 8.0 feet beginning approximately 10 feet east of the vegetation line and extending east, with one dip to 7.8 feet and then rising to approximately 8.5 feet, then dipping to 7.9 feet to the east and rising ultimately to 10.5 feet at the right-of- way line and the eastern edge of the project. FE 4. See also Findings of Fact 31, 34-36. The lots immediately to the north and south of the Property are vacant. (The Duboy lot, two lots north of the Property, is the subject of Department CCCL permit LE-1024, but no dwelling has been built.) Huff owns the two-story dwelling to the east of the Property and Gulf Drive. This dwelling is set back from the roadway easement on the east side of Gulf Drive. PE 3. DeLoof owns the single-family dwelling southeast (landward) of the Property and across Gulf Drive. The Project as Preliminarily Approved Flanagan proposes to construct a single-family dwelling on the Property with the exterior dimensions of the foundation measuring 60 feet in width (in the shore-parallel direction) and between 11 and 16 feet deep (in the shore-normal direction). The side yard setbacks are approximately 7.5 feet. FE 4; JE 1-Final Order at 2. Given the road easement, the project can not be located any farther eastward. The proposed dwelling will be constructed on 15 pilings (12 inches in diameter), see, e.g., JE 1 at August 21, 2003, Survey and Drawing and Certification, sheet G and August 23, 2004, Survey Drawing and Certification, sheets C100-101 and A100, and must comply with the Florida Building Code. See § 163.053(22), Fla. Stat.; Fla. Admin. Code R. 16B-33.008(1). The project includes a 900-gallon septic tank to serve the proposed dwelling. Special permit condition 2.1 permits the "onsite disposal system's septic tank and chamber pipes [to be] located a maximum of 220 feet seaward of the" CCCL. As a result the septic tank must be moved landward from the original proposal. See, e.g., FE 4. The dwelling's most seaward point will be a maximum of 200 feet seaward of the CCCL. Construction limits are located a maximum of 225 feet seaward of the CCCL. JE 1-Final Order at 2. There are no walkways associated with this project. The Location of the Dune(s) The expert testimony and exhibits were in conflict regarding the location of the dune(s) on the Property. The several site plans submitted by Flanagan do not specifically designate the location of any dunes on the Property. See, e.g., JE 1; FE 3-4. These site plans indicate the approximate location of the vegetation line, various elevations, and contour lines. Id. See also Findings of Fact 22-23. Flanagan also provided a March 13, 2003, analysis of the vegetation on the Property, see Finding of Fact 17. FE 6. The Department's Field Engineer prepared a site inspection report dated June 6, 2004, which stated that "[t]he dune system here is well established with a primary and secondary dune." Vegetation cover and comments are also indicated, including a notation that the coastal scrub area is approximately 75 feet wide with a series of dunes. However, the report does not identify the location of a frontal dune. The description of the vegetation appears consistent with the March 13, 2003, descriptions of the Property. See Findings of Fact 13, 17, 38, and 39. The same can be said regarding the Field Engineer's description of "the building footprint" which is described as "mostly mature seagrape, sabal palm, and woody coastal species." Id. See also FE 6 and Mr. De Czege's testimony T 32-37. Mr. Tammisetti, whose testimony is in the record by deposition, stated that he had never been on the Property. He located the dunes on the Property based on the topographic elevations depicted on the Flanagan site plan, received by the Department on July 12, 2004. PE 1 at 22-23; FE 4. After consulting the statutory definitions of "frontal dune" and the rule definition of "primary dune," Mr. Tammisetti located the "frontal dune" and the "primary dune" at contour/elevation 8 on FE 4, i.e., they are in the same location. He also noted a small dune at contour 9, slightly landward. He always considers impacts to the frontal dune, regardless of where it may be located in reference to the beach. In like manner, if there is no primary dune and only a fontal dune, he would consider impacts to that dune. Mr. Tammisetti also described the frontal/primary dune as "immediately landward of the vegetation line." PE 1 at 23-26, 50, 53-58. Mr. McNeal is familiar with North Captiva Island and has processed applications for this area. T 53. However, he has not been on the island "in quite a while," "[a]t least since the '90s." T 83. In making his determinations in this case, Mr. McNeal relied on the information in the Department's file, including the Urban surveys (FE 3-4), vegetation report, and other information regarding vegetation on the Property. See, e.g., T 200-201. Based on that information, Mr. McNeal provided the approximate location for three separate dune areas on the Property: 1) he located a frontal dune (spanning the entire width of the Property) between elevation 5.0 feet and the seaward one-third of the elevation contour 8.0 (a semi-circle extending approximately two-thirds laterally across the southern portion of the Property); 2) he located a secondary dune (spanning the entire width of the Property) landward of the frontal dune (he identified) and after a "little trough," at approximately the 8.5 feet elevation and encompassing a smaller semi-circle elevation at 9.0 feet; and 3) he located a primary dune landward of the secondary dune and another "little trough," at the proposed dwelling footprint and road easement, between elevations 10.0 and 9.5 feet, where the "vegetation coverage gets to be more established and more dense." T 63-66, 87; FE 3-4. On the other hand, Ms. Erickson visited the Property several times and since the hurricane season of the fall of 2004 (last time late in January 2005), and stated that there was no continuous, vegetated dune that provides protective value in the areas referenced as the frontal dune by Mssrs. Tammisetti and McNeal. Ms. Erickson stated that historically there had been a frontal dune in this area, but that it began to erode away some time after 2001, and it no longer exists. T 121-122. Ms. Erickson described the area where Mssrs. Tammisetti and McNeal located the frontal dune as having "small mounds" of elevation that are not "continuous along the shoreline," for adjoining property. She also described the vegetation in this area as "not continuous" and "very sparse," although she stated "there are some sea oats in the area." Ms. Erickson located the "primary (frontal) dune" as the rear (east) approximately 30 to 40 feet of the Property, which overlaps with the proposed footprint of the dwelling, and is in the approximate location where Mr. McNeal located the primary dune. T 115, 121-125; FE 3-4; PE 8. Stated otherwise, for Ms. Erickson, the primary/frontal dune is located between the two yellow lines on Flanagan Exhibit 4. T 124-125. This is a difficult issue to resolve. Mr. Tammisetti and Mr. McNeal are well-versed in identifying dunes and with permitting structures seaward of the CCCL. However, their opinions are given less weight in this case regarding the location of the dunes, in part, because neither personally observed the Property. The vegetation analysis performed by Mr. de Czege in March 2003, is helpful to some extent, but not definitive, although he testified that the vegetation described as "coastal herbaceous dune" is consistent with what would be found on a frontal dune. T 34-36. See Finding of Fact 17. (Mr. de Craze was last on the Property in and around May 2004. T 37.) The site plans submitted by Flanagan are likewise helpful to some extent, but are also not definitive. The Department's site inspection report, see Finding of Fact 13, is helpful to some extent. The inspection report suggested that the septic system would need to be placed on the seaward side of the proposed dwelling and necessarily "within the coastal scrub and dune area." However, although it is stated that the dune system is well established with a primary and secondary dune and coastal scrub area approximately 75 feet wide with a series of dunes, the location of a frontal dune is not discussed. Id. The weight of the evidence indicates that there is an elevated dune area with vegetative cover the width of the Property and somewhat seaward of the proposed footprint of the dwelling (between elevation 8.0 feet and 10.0 feet), which has protective characteristics, and will most likely be left undisturbed. But see PE 12, showing a 15-foot construction access and staging area without consideration of the designated septic tank area. However, the weight of the evidence also indicates that this primary and frontal dune area also includes the more landward location between the yellow lines between elevation 10.0 and 10.5 feet. The project is proposed to be constructed in the middle of this primary and frontal dune. FE 4. The weight of the evidence indicates that at least some native vegetation and in situ sandy soils will be removed during the construction of the project. If the project is constructed in accordance with the "plans" submitted to the Department on September 20, 2004, (JE 1), as interpreted by Ms. Erickson, see, e.g., Findings of Fact 60-61, construction of the project will result in the removal or destruction of native vegetation and in situ soils from the primary and frontal dune area such that it more likely than not will destabilize the primary and frontal dune identified by Ms. Erickson and potentially create a significant adverse impact on the beach and dune system or adjacent properties, notwithstanding Special Conditions 2.2 and 2. [sic] (the last full paragraph on page 2 of the Final Order which should be paragraph 3.) and the General Permit Conditions in Florida Administrative Code Rule 62B- 33.0155(1)(g)-(k). See Finding of Fact 19. JE 1.3 30-Year Erosion Projection The Property is located between approximately 180 feet and 225 feet south of Department Range Marker R-69. R-70 is south of the Property. PE 6. As noted above, the area is subject to significant fluctuations in beach width. See Findings of Fact 21-22. See also JE 1, Emmett Foster April 28, 1992, Memorandum. Depending on the stability of the shoreline in question over a significant period of time, Florida Administrative Code Rule 62B-33.024(2) allows several methods to determine the location of the 30-year erosion projection. T 56- 57. 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." Fla. Admin. Code R. 62B-33.002(57) and 62B-33.024(1). The 30-year erosion projection is determined using one or more procedures set forth in Florida Administrative Code Rule 62B-33.024(2)(a)-(c). Relevant here, "[s]ome shoreline areas, such as those adjacent to or in the vicinity of inlets without jetty structures, can experience large-scale beach-width fluctuations with or without net erosion losses. Other beach areas can fluctuate greatly due to the observed longshore movement of large masses of sand, sometimes referred to as sand waves. In these areas, a 30-year erosion projection shall be estimated from the available data at the SHWL landward limit of the large beach-width fluctuations within the last 100 years, plus the application of a net erosion rate, as described in paragraph 62B-33.042(2)(a), F.A.C., if such can be determined from the available data." Fla. Admin. Code R. 62B-33.024(2)(c)(emphasis added). This is the appropriate rule paragraph to determine the 30-year erosion projection in this case. T 57, 130. The Department has consistently used the most landward shoreline (MHWL and SHWL) of record (the 1982 Department survey) as the 30-year erosion projection between R-69 and R-70 on North Captiva due to the dramatic swings between periods of erosion and accretion. The Department did not calculate a net erosion rate for the Flanagan project. During the summer of 2004 and in light of the Flanagan application, Department staff requested Mr. Foster to review the erosion situation between R-69 and R-70 for the purpose of reviewing the 30-year erosion projection. Mr. Foster's recommendation remained the same as it was stated in his April 28, 1992, memorandum, "with updated mhw data table and copies of profile plots." See Finding of Fact 14. (Mr. Foster used Rule 62B-33.024(2)(c) to calculate the 30-year erosion projection, but did not calculate an additional net erosion rate on top of his 30-year erosion projection which stopped at the 1982 SHWL, see Finding of Fact 14. T 171.) During the final hearing, Mr. McNeal, utilizing Mr. Foster's updated data, located the SHWL (blue hatch line) as of 1982 on an aerial which depicts the May 30, 1991, CCCL. The depicted SHWL is the 30-year erosion line according to Mr. McNeal. T 171, 192-193; JE 3. The proposed project is landward of this 30-year erosion projection. The location of the 30-year erosion line was chosen because, according to the Department, it is the method most compatible with large-scale beach fluctuations and unpredictable shoreline trends. T 57. The Department's analysis was predicated on the assumption, based mainly on Mr. Foster's analysis, that a net erosion rate should not be determined for the Property. On the other hand, Ms. Erickson calculated a net erosion rate of -4.3 feet per year from data between 1951 and 2004-2005, although Department data exists back to 1859.4 T 130- 135, 155-165, 168-177, 187-188; PE 10. Ms. Erickson multiplied -4.3 by 30 years and added the most landward SHWL over the last 100 years which yielded a 30-year erosion projection which is landward of the proposed project. PE 11, purple line. Mr. McNeal disagreed with Ms. Erickson's location of the 30-year erosion line in this case, preferring to rely on Mr. Foster's analysis. T 196-197. He believed that "it may be an issue of judgment on data to be used in this case, not necessarily [the] rule itself, but the data that was used." T 196. Again, Mr. McNeal testified that the Department has consistently used Mr. Foster's methodology when it reviewed other permits along this shoreline, and, in particular, with respect to the Department's consideration of the Duboy property located two lots to the north of the Property. T 197-198. Flanagan, through Mr. McNeal and Mr. Foster's analysis, presented a prima facie case regarding the location of the 30-year erosion projection, which was adequately rebutted by Petitioners. It was then incumbent on Flanagan, as the applicant, to ultimately prove the reasonableness of locating the 30-year erosion projection as indicated by Mr. McNeal, which he did not do. Mr. McNeal did not state that Ms. Erickson's analysis of data (which did not include data back to 1859, see JE 1, Foster April 28, 1992, Memorandum and attached data and Endnote 4) was flawed or otherwise inconsistent with Rule 62B- 33.024(2)(a)-(c). It is concluded that the 30-year erosion projection is as depicted on Petitioners' Exhibits 10 and 11. Therefore, the proposed project is seaward of the 30-year erosion projection. Continuous and Uniform Line of Construction Florida Administrative Code Rule 62B-33.005(9) provides that "[i]f in the immediate area a number of existing structures have established a reasonably continuous and uniform construction line and if the existing structures have not been unduly affected by erosion, except where not allowed by the requirements of Section 161.053(6), F.S., and this rule chapter, the Department shall issue a permit for the construction of a similar structure up to that line, unless such construction would be inconsistent with subsection 62B-33.005(3), (4), (7), (8), or (10), F.A.C." Mr. McNeal located the established line of construction seaward of the proposed project by considering aerial photographs, the Department's database for permit history, and the Flanagan application. See FE 2, red line for Mr. McNeal's location of the continuous line of construction. Mr. McNeal was able to identify structures north and south of the Property, which appeared to be seaward of the proposed structure. (The Gabbert house, which is south of the Property, was considered. FE 2, number 3. The Department also considered, in part, its approval of CCCL permit LE-1024 for the Duboy lot (number 2 on FE 2, T 61-63, 198-200), two lots north of the Property.) There is no structure on the Duboy lot. The weight of the evidence indicates that the Gabbert house has not been "unduly affected by erosion" and that the line of continuous construction determined by Mr. McNeal was reasonable. Removal or Disturbance of Native Vegetation and In Situ Sandy Soils Florida Administrative Code Rule 62B-33.005(4)(a)-(c) provides: 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 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, immediately adjacent properties, or the coastal system. See Fla. Admin. Code R. 62B-33.002(31)(a)-(d) for definitions of "impacts," "significant adverse impacts," "minor impacts," and "other impacts." Mr. Hildreth stated that the only proposed excavation5 "per se would be the installation of the septic tank and drain field, and any type of tie beams you might have between the pilings for bracing." See also PE 1 at 30. He stated that primarily seagrapes and cabbage palms are located on the dwelling footprint and that these would be placed "over to the side." He also opined that approximately one truck load of dirt would be excavated and spread around the site, including on top of the septic tank and drain field, which will be located "immediately west of the house" and no more than 220 feet seaward of the CCCL. This would result in a change in elevation around the drain field of approximately six inches to a foot. Fifteen, 12-inch pilings are proposed. T 43-45; JE 1, Final Order at 2. Conversely, Ms. Erickson testified that construction of the dwelling foundation alone would require the excavation of approximately 430 to 600 cubic yards of material from the frontal and primary dune (located by Ms. Erickson, (PE 8 and 12)). T 137-149; see also JE 1, August 23, 2004, site plan and other sheets filed with the Department and Finding of Fact 25. (The Department does not review construction plans for a proposed dwelling. According to Mr. Tammisetti, the Department examines the "siting of the structures." PE 1 at 29, 38, 42. See also T 202.) Ms. Erickson also stated that significant excavation of dunes causes instability of the dune system by loosening sediments, destroying vegetation, and creating flow pathways that exacerbate wind and wave erosion. Ms. Erickson expects significant adverse impacts to the frontal dune as a result of proposed excavation on the Property. Id. Mr. McNeal acknowledged that excavation and vegetation removal causes instability of the dune system, but opined that the applicant had minimized the removal or disturbance of in situ sandy soils; that the disturbance of in situ sandy soils will not result in net excavation; that the project will not result in the destruction or removal of native vegetation to such a degree that the frontal dune will lose any protective value, destabilize the frontal dune or increase erosion by either wind or water; that the proposed construction 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 have a significant adverse impact to the beach and dune system; and that the Department's Final Order does not allow removed or disturbed in situ sandy soils to be placed landward of the CCCL. T 66-82, 202. Mr. McNeal's opinions are predicated, in part, on his belief that the frontal dune is located seaward of the proposed dwelling and that excavation on-site will be minimal and temporary. Id. See also PE 1 at 30-31, 36-37, 44, 53. The weight of the evidence indicates that notwithstanding the permit conditions, the excavation of in situ sandy soils and native vegetation from the frontal/primary dune is more likely than not to result in significant adverse impacts to the beach and dune system.6 Local Approval There is no evidence that Lee County has rescinded the prior approval letter or that the project has undergone any major modifications that would require the Department to request further approval from Lee County.
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 CCCL permit. DONE AND ENTERED this 1st day of September, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 1st day of September, 2005.
Findings Of Fact The subject property Petitioners, Michael and Janice Rush, are the owners of a single family residence located at 3032 North Atlantic Boulevard, Fort Lauderdale, Broward County, Florida. Such residence lies seaward of the Broward County Coastal Construction Control Line (CCCL) and is therefore subject to the permitting jurisdiction of respondent, Department of Natural Resources (Department). Section 161.053, Florida Statutes. The first application In April 1991, Petitioners filed a permit application (Permit File No. BO-267) with the Department for permission to renovate their home and construct a swimming pool. That application was found to be incomplete, and by letter of April 17, 1991, the Department notified petitioners of the information required to complete their application. Following receipt and review of the requested information, the Department, by letter of July 26, 1991, advised petitioners that, as proposed, their application to construct a pool and renovate the home would have to be denied. Pertinent to the proposed pool, such letter observed that a portion of the pool would be located seaward of the 30-year erosion projection which is prohibited 1/, the general construction line of major structures would be advanced further seaward, adverse impacts to the beach/dune system during a major storm event could be expected, and cumulative adverse impacts could be expected. Thereafter, by letter of August 14, 1991, the Department was advised that petitioners were submitting new house plans for the subject property, and that the request for leave to construct the pool had been removed from their application. 2/ On December 23, 1991, the Department issued a final order in Permit File No. BO-267 which authorized the petitioners to remodel their home. Such final order observed: . . . The direct and cumulative impacts to the beach and dune system that will be caused by both the seaward location and shore- parallel width of the proposed construction represent the maximum such impacts that are acceptable to the Department. Therefore, future construction on the site seaward of the coastal construction control line shall not extend further seaward of, or increase the shore- parallel coverage occupied by, the proposed structures approved pursuant to this permit. The pool, which petitioners had initially proposed to construct seaward of the home, but subsequently deleted from their plans, constituted a major structure, albeit nonhabitable. Rule 16B-33.002(54)(b), Florida Administrative Code. Petitioners were expressly advised by the Department of their right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, to contest the provisions of the final order. No such contest was filed. 3/ The pending application On February 20, 1992, petitioners filed a new application (Permit File NO. BO-289) with the Department for permission to construct the swimming pool on their property. As proposed, the pool would be located in the beach-dune system seaward of petitioners' home, as well as seaward of an existing retaining wall on the petitioners' property. The pool would measure 16.0' x 35.7' externally, be constructed of reinforced gunite, and be supported by ten piles. The alignment of the pool would be in the shore parallel direction, rather than the shore normal direction as proposed in the prior application, thereby placing the pool landward of the 30-year erosion projection. By letter of March 8, 1992, the Department advised petitioners that their application was incomplete, and requested additional information. Petitioners submitted the final information necessary to complete their application on July 21, 1992. By letter dated October 7, 1992, received by petitioners' representative on October 13, 1992, the Department issued a public notice as follows: The referenced application for a permit pursuant to Section 161.053, Florida Statutes, has been placed on the agenda of the head of the Department of Natural Resources (Governor and Cabinet). The application will be reviewed by the Cabinet Aides in the Cabinet Meeting Room on the lower level of the Capitol, at 9:00 a.m., October 14, 1992. The application will then be heard by the Governor and Cabinet in Room LL03 of the Capitol, at 9:00 a.m., October 20, 1992. You may attend these meetings if you desire. The recommendation [for denial] shown on the enclosed agenda item has been made to the head of the Department by the Executive Director. This represents an agency determination. . . . The notice, consistent with the provisions of Rule 16B-33.012(8), Florida Administrative Code, further advised that any substantially affected person had the right to request a formal hearing, pursuant to Section 120.57, Florida Statutes, within 21 days of receipt of the notice, and that "If the decision of the Governor and Cabinet is different from the staff recommendation as noticed . . ., then the applicant or any substantially affected person shall have 21 days from the date of the Governor and Cabinet's announcement of their decision in which to petition the agency for a hearing." The basis for the Department's denial of petitioners' application to construct the swimming pool was stated as follows: The proposed swimming pool is not consistent with Rule 16B-33.005(1), Florida Administrative Code, because it has not been clearly justified by the applicant and less impactive alternatives are available. For example a similar structure could be sited in a less impactive location landward of the single-family dwelling on the southwest corner of the property. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(a), Florida Administrative Code, for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(c), Florida Administrative Code, for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties. The proposed swimming pool is inconsistent with Paragraph 161.053(5)(b), Florida Statutes, because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area. The proposed swimming pool is inconsistent with Rule 16B-33.007(1), Florida Administrative Code, because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shore line fluctuations and to preserve dune stability and natural recovery following storm-induced erosion. The proposed swimming pool is not designed pursuant to Rule 16B-33.007(2), Florida Administrative Code, to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system. * * * 8. The proposed project is not designed pursuant to Rule 16B-33.005(7), Florida Administrative Code, because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event. The Department, therefore, may not authorize the construction of the pool. On October 13, 1992, petitioners requested that their application be removed from the agenda, and be rescheduled for "a later date to be determined." The rationale for petitioners' request was to afford "an opportunity for the permittee and staff to meet in Tallahassee in early to mid November and reach a design for a pool which can be recommended favorably by staff." By letter of October 14, 1992, the Department granted petitioners' request and the item was removed from the agenda for the Governor and Cabinet meeting of October 20, 1992. Such letter further provided that although the Department was willing to meet with petitioners to discuss the staff concerns about their application, that it "must caution you . . . that at this time I do not anticipate that a swimming pool, as you requested, can be satisfactory [sic] located seaward of your home." Petitioners and the Department were unable to resolve their dispute. Accordingly, petitioners filed a petition on November 2, 1992, to contest the proposed denial of their application. By letter of November 13, 1992, the Department advised petitioners that their request for formal administrative hearing was inadequate, but accorded them 14 days from receipt of such letter to submit an appropriate request. Petitioners timely submitted an appropriate request for hearing on November 30, 1992, and the matter was thereafter referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. 4/ The merits of the pending application As heretofore noted in the findings of fact, the Department enunciated seven reasons to support its denial of petitioner's application. The first basis for denial was the Department's assertion that the proposed swimming pool was not consistent with Rule 16B-33.005(1), Florida Administrative Code, "because it has not been clearly justified by the applicant and less impactive alternatives are available." In this regard, it is observed that Rule 16B-33.005(1), Florida Administrative Code, provides: . . . Establishment of a coastal construction control line . . . does not preclude all development of or alteration of coastal property seaward of such lines. However, activities seaward of a coastal construction control line . . . shall be limited and the necessity of such development, construction or alteration shall be stated and clearly justified by the applicant. (Emphasis supplied) The aforesaid rule does not further explain what is contemplated by the requirement that the applicant clearly justify the "necessity" of the proposed development; however, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary. 5/ In this regard, "necessity" is defined to mean "something that cannot be done without." Websters New Twentieth Century Dictionary. It is also defined as "something needed for the existence, effectiveness, or success of something (a requirement)," and "the state or fact of being required or unavoidable." The American Heritage Dictionary of the English Language. Here, the proof fails to demonstrate any "necessity" to construct the swimming pool since it fails to credibly support the conclusion that such construction is required for the effective or reasonable use of petitioners' property or that such construction is essential for the well-being of its occupants.6/ To the contrary, the petitioners' decision to construct the pool is merely a matter of personal preference or convenience. Moreover, the proof fails to demonstrate any "necessity" to construct a pool of the size and configuration proposed (16' x 35.7' with a maximum depth of 8') or of the materials selected (reinforced gunite supported by piles). Indeed, a pool of a different configuration or size could be located elsewhere on the property and the pool could be constructed on a base slab foundation or of vinyl to alleviate the adverse effects of its current design, discussed infra. 7/ As further reasons for denial, the Department concluded that construction of the swimming pool was not consistent with Rule 16B-33.005(2)(a), Florida Administrative Code, "for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade"; Rule 16B-33.005(2)(c), Florida Administrative Code, "for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties"; Rule 16B- 33.007(1), Florida Administrative Code, "because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shoreline fluctuations and to preserve dune stability and natural recovery following storm-induced erosion"; and Rule 16B-33.007(2), Florida Administrative Code, "to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system." Pertinent to the aforesaid reasons for denial, Rule 16B-33.005(2), Florida Administrative Code, the "Department Policy Statement on Permits," provides: Seaward of the coastal construction control line . . ., special siting, structural and other design considerations are required: (a) for the protection of the beach-dune system; * * * (c) for the protection of adjacent properties. And, Rule 16B-33.007, Florida Administrative Code, the "Structural and Other Requirements Necessary for Permit Approval," provides: The proposed structure or other activity shall be located a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and natural recovery following storm induced erosion . . . . All structures shall be designed so as to minimize any expected adverse impact on the beach-dune system or adjacent properties and structures and shall be designed consistent with Section 16B-33.005, Florida Administrative Code. Relevant to such rules, the proof demonstrates that the frontal dune on the subject property appears to have been leveled at an elevation of approximately +12.0 feet NGVD, and petitioners' home is located on top of the crest of the frontal dune. The seaward slope of the frontal dune begins at the seaward face of the house and slopes down to the beach. Approximately 12 feet seaward of the house is an existing retaining wall. The proposed pool will be sited immediately seaward of such wall and therefore on the seaward slope of the frontal dune. The proposed pool is a pile supported concrete swimming pool with exterior dimensions of 16.0' shore-normal by 35.7' shore-parallel, and a maximum depth of 8.0'. The foundation is specified to be auger-cast piles, which will penetrate to an elevation of -23.0' NGVD or 3' embedment where a rock layer is encountered. The elevation of the pool is proposed at +13.0' NGVD, with a bottom elevation of +4.0' NGVD. As designed and sited, construction of the pool would destabilize the dune, hinder its function of protecting upland development during a storm event, and adversely affect natural shoreline fluctuation and recovery following storm induced erosion. In this regard, the proof demonstrates that the location of the pool seaward of the existing retaining wall would interrupt the natural continuity of dune formation because sand would accumulate seaward of the pool in a less stable location and would impede the accumulation of sand on adjacent properties. Construction of the pool, as designed and sited, would also induce scour during the course of a storm event impacting the structure. Such storm- induced scour, in addition to erosion, would cause the loss of additional sand at the vicinity of the structure, robbing the beach-dune system of additional sand necessary to protect upland structures, and would also contribute to the potential failure of the structure itself and other upland structures. In this regard, the proof demonstrates that approximately 1,000 cubic yards of sand would be lost on petitioners' section of the beach in the event of a 10-year storm. Additionally, structure-induced scour of 77.5 cubic yards from the ten piles, 120.4 cubic yards from the pool shell, and 15.8 cubic yards from the "end effects" of the pool (the amount of structure-induced scour from the ends of the structure) might reasonably be anticipated in the event of a 10-year storm. If the pool were to be impacted by a higher frequency storm, such as a 20-year or a 100-year storm, scour and erosion would increase. 8/ As an additional basis for denial, the Department concluded that construction of the pool was not consistent with Section 161.053(5)(b), Florida Statutes, "because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area." Here, the proof supports the Department's conclusion. As its final basis for denial, the Department concluded that construction of the pool was not consistent with Rule 16B-33.005(7), Florida Administrative Code, "because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event." Pertinent to the aforesaid basis for denial, Rule 16B-33.005(7), Florida Administrative Code, provides: An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site; however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event . . . . Here, petitioners' project is expected to have significant adverse impacts to the beach-dune system as a consequence of its design and siting. Accordingly, the provisions of Rule 16B-33.005(7), Florida Administrative Code, are not relevant. Moreover, there was no proof concerning any similar structures along the coast, existing or proposed, that would contribute to or intensify the degradation of the beach-dune system occasioned by the proposed project. Accordingly, it cannot be concluded that cumulative impact is a relevant issue in these proceedings. While cumulative impact is not relevant to the pending application, the other reasons advanced by the Department for denial of the application have, as heretofore found, a rational basis in fact. Under such circumstances, petitioners have failed to demonstrate their entitlement to the subject permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioners' application to construct seaward of the CCCL. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November 1993. WILLIAM J. KENDRICK 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 22nd day of November 1993.
Findings Of Fact In 1981, Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley Petitioners' Exhibit 1, Respondent's Exhibit 1) At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December, 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20) On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984 that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area . . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16) The height of the dune line on petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under deed covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to some extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8) Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21) Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10) Although conflicting evidence was received as to whether or not the existing structures east of Petitioners lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioner's Exhibit 1) Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2) The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4.)
The Issue The central issue in this case is whether the Department of Environmental Protection (Department) should approve a permit for the applicant, Indian River County (County), to install a prefabricated erosion prevention reef (PEP reef) off the coast of Vero Beach, Florida.
Findings Of Fact The Department is the state agency charged with the responsibility of reviewing and approving permits such as the one at issue. The County is a governmental entity and is the applicant which has requested a permit for an experimental project to be located in Vero Beach, Florida. The Petitioners oppose the proposed project. The project at issue is the installation of a PEP reef system to be located between approximately 300 feet south of reference monument R-80 to approximately 300 feet south of reference monument R-83, in Indian River County, Florida. Because of the uncertainty as to the performance of the proposed project and the potential that it may cause adverse impacts to the coastal system, the Department classified the project as experimental pursuant to Chapter 89-175, Section 27, Laws of Florida. In making its preliminary approval for the permit, the Department required special permit conditions to safeguard the coastal system and marine turtles. Additionally, the Department specified both preconstruction and post installation monitoring and testing. The term of the permit is limited to five years, including three years to monitor the project's impacts. A PEP reef is a prefabricated erosion prevention product installed as a breakwater off the shore. In this case, the product measures approximately twelve feet long and six feet high. The base of the product (which is conically shaped) is approximately 15 feet tapering to a one foot crest at the top. The PEP unit is a proprietary product of a company called American Coastal Engineering (ACE). The County proposes to contract with ACE for the manufacture and installation of the units. It is proposed that the PEP units would be installed in an alignment parallel to the beach for a total, though not continuous, length of 3000 feet. The proposed location for the PEP reef in Vero Beach is in an erosion area as identified by the Department's Beach Restoration Management Plan. Historically, the subject beach has experienced a steady and continuous erosion which has been exacerbated during storm conditions. The proposed site is suitable for the experimental nature of this project. At least one past storm event caused substantial damage to the beach front at the project site. Walkways, utilities, and other public improvements were substantially damaged. Past efforts to curb the erosion have proved unsuccessful. Such efforts included beach renourishment, and the installation of seawalls or bulkheads. Future beach renourishment is undesirable for the project site due to the lack of compatible sand, and its high cost. More important, however, are concerns over the negative environmental impacts to nearshore reefs which could result from a large scale renourishment project. For over ten years the County has sought a solution to the erosion that has plagued the project site. To that end, the County established a special committee, the Beach and Shore Preservation Advisory Committee, to review options available and to recommend long-term solutions to the County. In June, 1993, the County contracted with Petitioner Walther to prepare a map of the nearshore hardbottom reef and to evaluate alternatives for beach restoration at the project site. Such work was completed, and recommendations from Mr. Walther were not incompatible with the installation of the proposed reef. The proposed installation should not adversely affect the hardbottom reefs which are in the vicinity of the PEP units. Such hardbottom is considered environmentally sensitive; however, no PEP unit will be placed on the hardbottom or so close to it that it will disturb the organisms located within the hardbottom community. In December, 1993, the County submitted an application for an experimental coastal construction permit to install the PEP reef which is at issue. The PEP units are to be placed in seven to ten feet of water. The PEP reef is designed to reduce wave heights, particularly during a storm event, which should reduce the wave energy and currents in the lee of the structure. While it is hoped the units will deter erosion, they may also cause some accretion to the beach. Whether such accretion would be temporary or long- term is uncertain. As a result of studies performed by the University of Florida under the direction of Dr. Dean, and supported by the County's coastal engineer Mr. Donaldson, it was determined that the PEP units should be installed in shorter lengths (than originally designed) with gaps between each segment. Consequently, the installation proposed by the County is not continuous but is staggered and gapped. The installation proposed by the County is unique in that the coastal characteristics of the area and the proposed design should produce results different from past installations of reef structures in Palm Beach County, Florida. As a result, studies performed by Dr. Dean in connection with a reef installed in Palm Beach County have been discounted as dissimilar to the one proposed in this case. In reviewing the subject permit application, the Department requested additional data which the County retained Dr. Zarillo to gather. Dr. Zarillo performed numerical modeling for the proposed reef system. Based upon Dr. Zarillo's work it is expected that the PEP reef system will have a positive benefit in that wave height and energy is likely to be reduced by the installation of the units. The site for the installation is suited for the proposal and is not within an area that is considered environmentally sensitive. Moreover, the PEP reef itself will add to the development of species since it should develop into a nursery habitat for young fish and other marine organisms. The installation of PEP reefs at other locations have proven to be both successful and unsuccessful. Having considered the studies performed by Dr. Bruno, an expert in coastal engineering and in measuring/modeling coastal processes, it is likely that the proposed project will be similar enough in design to installations reviewed by Dr. Bruno to allow the proposed project to be compared. Dr. Bruno has monitored three installations at three different sites in New Jersey. Each site had different results based upon conditions of each location. One site, expected to be most like the proposed site in Vero Beach, has experienced a reduced rate of erosion. Based upon Dr. Bruno's "real life" experience it is expected that the proposed installation will result in a reduction of wave height on the order of 10 percent to 20 percent. Consequently, the proposed installation should provide a benefit to the control of erosion. The reduction of wave height leads to a reduction in the erosive power of the wave field. Therefore, it is expected to result in a reduced erosion rate behind the PEP reefs. Additionally, Dr. Bruno's assessment of Dr. Zarillo's modeling work suggests that "in theory" the proposed site should experience a reduction in wave height as a result of the proposed installation. As a result, both scientific methods support the proposed project. No scientific study can, however, assure the success of this project. In fact, success may be derived from the value of the data which will be gathered during the monitoring period. Such data may assist in the future design of structures to reduce wave energy. The County's proposed monitoring plan contains detailed and adequate performance criteria to assure that the PEP reef system will be fully evaluated. The County has provided adequate assurance that it will comply with the permit conditions, including the modification or removal of the reef system if directed by the Department. All installation and monitoring as well as removal is to be performed at the County's expense. The PEP reef system will have no appreciable adverse impact on marine turtles. Construction is prohibited during nesting season under the terms of the permit. The PEP reef system will have no adverse impact on swimmers or boaters. The units are to be clearly marked and identified under the terms of the permit. No adverse impacts to Petitioners Walther and Clemens should be incurred as a result of the installation of the proposed project.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection enter a final order approving the permit requested by the County. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. 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 16th day of February 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4045 Rulings on the proposed findings of fact submitted by the Petitioner Walther: 1. Paragraphs 1, 3, 4, 6, 7, 8, 9, 10, 12, 13, 16, 17, 26, 29, 42, 44, 47, 50, 51, 59, and 60 are accepted. With regard to paragraph 2, the allegation is hearsay as it relates to the record cited; however, although not stipulated, the record most likely supports the paragraph in substance. Paragraph 5 is rejected as irrelevant. There is no evidence to support the factual conclusion that because another permit holder has failed to remove a reef that the County will similarly default on its obligation to do should the agency order the PEP reef removal. Paragraph 11 is rejected as irrelevant. Paragraph 14 is rejected as irrelevant if it purports to suggest the contracting was improper; this proceeding does not consider the propriety of the contracting process. With the deletion of any emphasis and the last sentence which are rejected as argument, paragraph 15 is accepted. Paragraphs 18 through 24 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 25 is rejected as hearsay; it is accepted that Mrs. Clemens opposed the permit and requested a hearing. Paragraph 27 is rejected as an incomplete statement and therefore not supported by the total weight of credible evidence. Paragraph 28 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 30 through 33 are rejected as law not statements of fact. Paragraph 34 is accepted in general terms but not as to the specific measurements cited. Paragraphs 35 through 38 are rejected as contrary to the weight of all credible evidence. It is determined that the site is suitable for a non-biased, comprehensive analysis of the project. Paragraphs 39 through 41 are rejected as contrary to the weight of all credible evidence. Paragraph 43 is rejected as irrelevant. With regard to paragraph 45, it is accepted the reefs may settle but such is expected to be unlikely to impair the overall performance of the structure; therefore, the paragraph, as drafted, must be rejected as contrary to the weight of all credible evidence. Paragraph 46 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 48 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 49 is rejected as unclear or incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraph 52 is rejected as irrelevant. Paragraph 53 is rejected as incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraphs 54 through 58 are rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 61, it is accepted that Dr. Dean envisioned a current being created that would run parallel to the shoreline as a result of the reef installation but otherwise rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 62, such statement is generally true; however, Dr. Dean did not conduct any sediment transportation test to verify that the structure in an open setting (as opposed to the experimental tank) would transport sediment as inferred. Paragraphs 63 through 67 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 68 is accepted as accurate but the agency did not express, and the record does not establish, that there is a concern that the County may not honor its agreement to remove the PEP reef if directed to do so. Paragraph 69 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner Clemens: 1. None submitted. Rulings on the proposed findings of fact submitted by the Respondent Department: All proposed findings of fact adopted by the Department as listed are accepted. See comments below as to rulings on the proposed findings of fact submitted by the County. Rulings on the proposed findings of fact submitted by the Respondent County: 1. Paragraphs 1 through 5, 7 through 15, 17, 20, 21, 23, 24, 26, 27 through 30, 34, 40, 41, 42, 43, 45, and 46 are accepted. With regard to paragraph 6, it is accepted that an extensive renourishment program might damage the sensitive nearshore hardbottom community; otherwise rejected as irrelevant. With regard to paragraph 16, with the deletion of the word "significantly" in the second sentence and the last sentence which are rejected as irrelevant, editorial comment, argument or not supported by the total weight of credible evidence, it is accepted. With regard to paragraph 18, the first sentence is accepted. As to the balance of the paragraph, with the deletion of the word "significantly" and the substitution of "might" for "could", the paragraph is accepted. Otherwise rejected as an inaccurate characterization of the weight of the record. With regard to paragraph 19, the first sentence is accepted. The remainder of the paragraph is rejected as irrelevant. Paragraph 22 is rejected as a compound statement of proposed fact some of which are accurate but which taken in whole constitute argument, unnecessary, irrelevant or not supported by the weight of the credible evidence. Paragraph 25 is rejected as unnecessary or irrelevant. With regard to paragraph 31, with the deletion of the word "significant" in sentence three, the paragraph is accepted. With regard to paragraph 32, with the deletion of the word "significant" in sentence two, the paragraph is accepted. Paragraph 33 is rejected as repetitive, unnecessary or irrelevant. With regard to paragraph 35, the first sentence is accepted. The remainder of the paragraph is rejected as unnecessary, comment, argument, or irrelevant. Paragraphs 36 through 38 are rejected as unnecessary, comment, argument, or irrelevant. The proposed PEP reef should not adversely impact the Vero Beach shoreline. Paragraph 44 is rejected as unnecessary, comment, argument, or irrelevant. With regard to paragraphs 47 through 53, it is accepted that the Petitioners did not establish that they will be substantially affected by the proposed project; however, their conduct does not rise to the level to establish participation in the administrative process was for an improper purpose. Consequently, the paragraphs are rejected as argument, irrelevant or contrary to the weight of the credible evidence. COPIES FURNISHED: Steve Lewis, Esquire John W. Forehand, Esquire LEWIS, LONGMAN & WALKER, P.A. 215 S. Monroe Street, Suite 702 Post Office Box 10788 Tallahassee, Florida 32302 Kevin S. Hennessy, Esquire LEWIS, LONGMAN & WALKER, P.A. 2000 Palm Beach Lakes Boulevard Suite 900 West Palm Beach, Florida 33409 Michael P. Walther 1725 36th Avenue Vero Beach, Florida 32960 Adele Clemens 3747 Ocean Drive Vero Beach, Florida 32963 Thomas I. Mayton, Jr. Dana M. Wiehle Assistants General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherall Secretary Department of Environmental Regulation Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Regulation 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether a permit should be issued to Petitioner Theodore B. Meadow to construct a dwelling on the Gulf Coast of Florida as requested in his application filed with Respondent Department of Natural Resources.
Findings Of Fact Having considered the evidence and argument of counsel, the Hearing Officer finds: In July of 1979 Petitioner filed an application for a permit to build a duplex dwelling seaward of the coastal construction setback line on a parcel of land bounded by the theoretical extension seaward of the north/south boundary line of Ponce de Leon Street in Yon's Addition to Beacon Hill on St. Joe Beach, Florida. The parcel of land is 70 feet in width and approximately 175 feet in depth to the high-water line of the Gulf of Mexico and lies between State Road 30 (US Highway 98) and the Gulf of Mexico at St. Joe Beach in Gulf County, Florida. The application, Department of Natural Resources File #79-P-283, was filed pursuant to Rule 16B-25.05, Procedure to obtain variance; application, Florida Administrative Code, which had been promulgated under the authority of Sections 161.052, 161.053 and 370.021(1), Florida Statutes. Attached to the application was a copy of a deed to subject property to Albert H. Hinman dated December 12, 1977; an undated authorization from the owner of the property to Petitioner Meadow to apply for a variance and if granted to construct a building on the property; a survey of the property; a floor plan of the building with a typical wall section; and a topographical plat of the lot involved. In response to Rule 16B--25.05(1)(d): "Statements describing the proposed work or activity and specific reasons why the applicant feels the variance should be granted." Petitioner stated, in part, "...the reason that the permit should be granted is because applicant does not have sufficient space on property he is purchasing from A. H. Hinman to construct said building outside of the DNR Coastal Construction Control Line." The survey shows that 14 to 15 feet of the property lies landward of the Department of Natural Resources' setback line. At the time of the hearing no purchase had been made, but there is no dispute regarding the authorization of the owner to allow Petitioner to build if a variance is granted. After filing the application Petitioner consulted with the staff of the Department concerning the construction seaward of the setback line. The Chief Engineer of the permitting section of the Bureau of Beaches and Shores, who is responsible for accepting, evaluating and making recommendations for permits for construction, inspected the site of the proposed structure on October 11, 1979. He took a copy of the plans and specifications for the structure, a plot plan, and the engineering statement which accompanied the plans to review on the site. After the inspection he made a determination that the structure was appropriately designed for the hazard environment and located in such a position as to offer the least potential adverse impact to the beach in the area. Recent topographic changes, topographic data including that submitted by Petitioner, and other historical information was used to assess and evaluate the project. Thereafter, the engineer consulted with the Executive Director of the Respondent Department and gave a favorable recommendation in terms of minimal impact. The Executive Director determined that the structure was designed and located to have the minimum adverse impact on the beach, and that the structure was adequately designed to resist natural forces associated with a hundred-year storm surge (Transcript, pages 52-56). At the formal hearing the Executive Director stated that he based his recommendation for approval by the Executive Board on the precedence of previous action of the Executive Board and because he found that the Petitioner had his application in order. Petitioner Meadow has followed the guidelines of the administrative rules and submitted all required information. He has provided his reason for requesting a variance and believes the information furnished compels the Respondent Department to grant the waiver inasmuch as no modification was requested and he cannot build the structure he desires on the 14 to 15 feet of land he is authorized to use which lies landward of the 1975 setback line. The immediate area involved in this proceeding is relatively undeveloped beach property approximately one (1) mile in length at St. Joe Beach, Gulf County, Florida some twenty-nine (29) miles to Panama City and six (6) miles to Port St. Joe. The real property has been divided into fourteen (14) lots more or less similar to the lot on which Petitioner seeks to construct a duplex (Petitioner's Exhibit 2; Transcript, page 137). No structures except one multifamily dwelling have been constructed on any of the fourteen (14) lots. Most the construction along the nearby coastline was completed prior to March 21, 1975, the date the Respondent Department established a coastal setback line under the then applicable statutes and rules. Beacon Hill is a subdivision about a mile and a half from the subject area on the coastal western edge of Gulf County. The structures are close together, the majority of which were constructed prior to 1975 without a permit from the Respondent Department. Historically, the area would have had a similar topography and beach conditions to the subject area, but because of structures built on the beach vicinity the primary dune system has been eradicated, the beach is narrow in that vicinity, and there is virtually no vegetation (Transcript, pages 135-136). It has been found that any construction, particularly of a building, generally has an adverse impact on a beach dune system (Transcript, pages 149, 161). The "setback line" defined in the 1975 statutes and rules was established March 21, 1975 (Transcript, page 169). Thereafter, in 1978 the legislature amended Section 161.053, Florida Statutes, and ordered the Respondent Department to establish a "coastal construction control line" to replace the setback line, but said line has not yet been established, although at the hearing a member of Respondent's engineering staff stated that a study was in progress. Neither Petitioner Meadow nor Mr. Hinman, the owner of subject property, requested the Respondent Department to review the setback line or establish a coastal construction control line prior to filing of the application in 1979 for a variance of the 1975 setback line (transcript, page 93). "Setback line" and "coastal construction control line" are not synonymous. The setback line set a seaward line for construction, and the coastal construction control line defines the impact of a 100-year storm surge or other predictable weather condition (Transcript, page 179). An engineer on the Respondent Department's staff who qualified as an expert was of the opinion that the coastal construction control line, when established, would be landward of the setback line established in 1975 (Transcript, page 198). There have been two (2) hurricanes which have impacted the Gulf Coast since the setback line was established, one in September of 1975 and one in September of 1979. These storms had relatively little visual impact on the subject beach area except for erosion of the fore dune, but the storms substantially impacted the accretion of the coastline (Transcript, pages 189- 195). At the final hearing Ms. Sally Malone, a resident living one block from the proposed structure of Petitioner Meadow, protested the proposed construction on the beach and in general the removal of trees. The evidence shows she has a legitimate concern for the effect through erosion the construction might have on the beach near her home. Petitioner Meadow and the Respondent Department submitted proposed findings of fact and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is recommended by the Hearing Officer that the application of Theodore B. Meadow for a waiver or variance be denied without prejudice to his refiling an application after the coastal construction control line is established as required by Section 161.053, Florida Statutes, supra. DONE and ORDERED this 5th day of November, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 5th day of November, 1980. COPIES FURNISHED: Mark J. Proctor, Esquire Office of the General Counsel Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303 Cecil G. Costin, Jr., Esquire 413 Williams Street Post Office Drawer 98 Port St. Joe, Florida 32456
The Issue The issue is whether, pursuant to Section 161.053, Florida Statutes, and Rule 62B-33.005, Florida Administrative Code, Petitioners are entitled to a coastal construction control line permit to build a single-family residence in Volusia County with a structural elevation of 19 feet National Geodetic Vertical Datum, not 24 feet National Geodetic Vertical Datum, as required by Respondent.
Findings Of Fact Petitioners own an undeveloped lot located at 4279 South Atlantic Avenue in the Wilbur-by-the-Sea subdivision in unincorporated Volusia County. Mr. Humphries' family has owned the lot for 50 years. The rectangular lot is 210 feet deep and 50 feet wide. The narrower end abuts the Atlantic Ocean on the east and South Atlantic Avenue on the west. The south boundary of Petitioners' lot abuts a developed lot. The house located on this lot has a finished- floor elevation of 26.15 feet National Geodetic Vertical Datum (NGVD). This is consistent with the structural elevations of most of the residences in the immediate vicinity of Petitioners' lot. Even though the seaward extent of Petitioner's proposed structure is roughly in a line with the seaward extent of the nearby homes, the issue in this case is the structural elevation. The north boundary of Petitioners' lot abuts the 50- foot-wide right-of-way of Major Street. In 1984, a wooden walkway was constructed in the southern half of the Major Street right-of-way to allow pedestrians access to the beach. By that time, Major Street was no longer open for vehicular access. However, the construction and maintenance of Major Street may have contributed to the lower elevations on the north boundary of Petitioners' lot, as described below. Nearly all of the lots in the vicinity of Petitioners' lot have been developed; most, if not all, of them contain single-family residences. Petitioners, who are nearing retirement, wish to construct a house that would accommodate them in their later years when they expect their mobility to be reduced. Petitioners' house will sit atop a prominent secondary dune, as do all of the other oceanfront homes in the immediate vicinity. The house will also be confined roughly to the landward half of the lot. These factors mean that the relatively short driveway leading from South Atlantic Avenue to the garage will be relatively steep. Petitioners proposed a reduction in the top of the dune to reduce the steepness of the driveway and the difference in finished-floor elevations between the garage and the house. Generally, the south side of Petitioners' lot is higher than the north side. The seasonal high water line is 8.4 feet NGVD. The lot's east boundary, which is 7-8 feet landward of the seasonal high water line, is about 11.5 feet NGVD. The elevation of the south boundary rises to 28.5 feet NGVD, at a distance slightly east of the most seaward extent of the 10-foot wooden deck that is the most seaward structure proposed by Petitioners. The elevation of the north boundary does not rise much; over the same distance, it reaches only 12 feet NGVD. Proceeding westward, toward South Atlantic Avenue, the south boundary drops from its 28.5-foot elevation. Parallel to the proposed house, the boundary remains at about 25 feet NGVD, except it drops to about 20 feet at the point where the house would meet the garage. For the length of the 26-foot garage, the south boundary drops to 18.5 feet NGVD. For the length of the 30-foot section of driveway between the garage and the west boundary, the south boundary drops from 18 feet NGVD to 17 feet NGVD. The north boundary rises to its highest point, 20.6 feet NGVD, at a point just landward of the point along the boundary closest to the junction between the proposed wood deck and the house. Running parallel to the proposed house, the north boundary drops to about 18 feet NGVD (directly across from a point along the south boundary that reaches about 25 feet NGVD) and then to about 17.5 feet NGVD, at a point just landward of the point closest to the junction of the proposed house and garage. The proposed house would occupy elevations, prior to proposed site preparation, of about 28 feet NGVD at the seaward side, 22-26 feet NGVD at the midpoint, and no more than 21 feet NGVD at the landward side. The proposed deck, house, and all but a sliver of the garage lie seaward of the coastal construction control line. The northeast corner of the proposed house is 72 feet seaward of the coastal construction control line. The dune is largely vegetated. The vegetation includes sea oats, shrubs, and some palm trees, although Brazilian pepper, a nuisance exotic, also vegetates part of the dune. Just seaward of the southeast corner of the proposed deck is a hole, perhaps from past excavation, about ten feet deep and occupying 8-10 percent of the lot. This is the only portion of the lot significantly below-grade. Overall, the dune is functional and healthy. To the extent that it has been disturbed in the past, the dune seems to be recovering vigorously. On or about July 21, 1999, Petitioners applied for a permit to construct a residence seaward of the coastal construction control line. In their application, Petitioners proposed a structural elevation of 19 feet NGVD. The structural elevation, which is about two feet lower than the finished-floor elevation, is the lowest portion of the effectively horizontal structural elements supporting the floors and walls of the structure. Respondent's examination of the application raised concerns about the proposed structural elevation of 19 feet NGVD. The greater elevation of much of the dune under the footprint of the house would necessitate the relocation of dune materials on the lot or removal of dune materials off the lot. However, discussions between Respondent's representative and Mr. Bullard, Petitioners' engineer, failed to identify design modifications upon which both sides could agree. Thus, on June 5, 2000, Respondent issued a Final Order and Notice to Proceed Withheld (Final Order). The Final Order states that Respondent found that Petitioners' application was complete on March 6, 2000. Although the Final Order generally contemplates that construction will eventually proceed, Special Permit Condition 1 prohibits construction until Respondent issued a written notice to proceed. Special Permit Condition 2 warns that Respondent will not issue a notice to proceed until Petitioners submit plans that raise the structural elevation to 24 feet NGVD, relocate all excavated materials seaward of the coastal construction control line (but not more than 120 feet seaward of the line), prohibit net excavation seaward of the coastal construction control line, and specify the planting of all filled or disturbed areas with salt-resistant native vegetation transplanted from onsite areas that will be excavated and other sources, as needed. Special Permit Condition 7 requires Petitioners to obtain the fill material from a source landward of the coastal construction control line. The fill material also must be of a sand that is similar to that onsite in terms of grain size and coloration. However, nothing in the Final Order specifies any requirement to replicate present--or design scientifically verified new--seaward and landward slopes of the portion of the impacted dune. In resisting Respondent's demand to raise the structural elevation, Petitioners have sought to reduce the slope of their driveway, which involves traffic-safety issues in turning on and off busy South Atlantic Avenue, and eliminate the need for an extensive design modification to allow wheelchair- bound persons access to the house from the garage. At the hearing, Petitioners offered mitigation in the form of an artificial dune to be constructed seaward of the residence with excavated materials. However, this proposal would destroy existing vegetation and failed to specify slopes, so that the artificial dune would likely suffer significant and rapid erosion. Petitioners have failed to prove that their proposed construction activities, with a structural elevation of 19 feet NGVD, would not adversely impact the most prominent dune landward of the ocean, so as to reduce the existing ability of this dune to resist erosion and protect upland persons and property.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing Petitioners' challenge and issuing the Final Order and Notice to Proceed Withheld dated June 5, 2000. DONE AND ENTERED this 7th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2001. COPIES FURNISHED: David P. Struhs, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Robert R. Bullard, P.E. Qualified Representative Absolute Engineering Group Post Office Box 269 Daytona Beach, Florida 32115 Francine M. Ffolkes Senior Assistant General Counsel Timothy E. Dennis Certified Legal Intern Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Because of a 1984 Thanksgiving Day storm which inflicted damage in coastal areas, Barry Manson-Hing, an area engineer employed by the Department, issued emergency coastal construction permits from a temporary office in the Vero Beach Administration Building. On December 3, 1984, Respondent sought an emergency permit to allow him to place sand and sand-filled bags on his coastal property at 3755 Ocean Drive, Vero Beach, Florida. Respondent asked Mr. Manson-Hing if he could use sand from the beach to restore eroded areas. Mr. Manson-Hing said he could not, and told him that sand would have to be obtained from an upland source. Respondent replied that he had an available source of upland sand and would haul it by truck to the beach site. He also mentioned that he would remove an existing pine tree to allow vehicular access. On the next day, December 4, 1984, Mr. Manson-Hing issued an emergency coastal construction permit, #1R-127E, to Respondent. The permit allowed Respondent to place 1,500 cubic yards of sand fill material to restore eroded beach and dune areas at the site, and also permitted him to temporarily place sand-filled bags on filter cloth. In capital letters, the permit warned, "SCRAPING OF THE BEACH IS PROHIBITED." (Dept. Exhibit 4) On December 5, 1984, Lt. Raymond Barker of the Vero Beach Police Department, observed beach scraping activities being conducted on Respondent's coastal property. Respondent was present on the site. Beach sand seaward of the Coastal Construction Control Line for Indian River County had been scraped and deposited at the face of the sand dune. The removal of the sand created depressions in the beach area seaward of the Coastal Construction Control Line. Lt. Barker ordered Respondent to cease the activity until it could be determined he had the required authorization. Respondent complied with Lt. Barker's order. The scraping of the beach and removal of sand below the coastal construction control line was accomplished without a permit from the Department. On July 17, 1985, the Department entered its "Final Order" assessing Respondent a $500 fine for unauthorized coastal construction activities in violation of Section 161.054, Florida Statutes (1985). Respondent requested a hearing; resulting in this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department assess, impose, and collect an administrative fine of $500, to be paid within 30 days of final agency action. DONE AND ORDERED this 20th day of June, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. 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 the 20th day of June, 1986.
