Findings Of Fact The Petitioners, Dale K. Niemann and Janet R. Niemann, own property on Devon Drive, in Clearwater, Florida, which is approximately two houses down the street from the Respondent, John Blakely. On or about May 25, 1990, Mr. Blakely requested two variances from the Development Code Adjustment Board of the City of Clearwater. It was his intention to seek the variances in order to extend his present dock approximately twenty-five feet (to a length of eighty-nine feet) and to allow the dock to be positioned 8 feet from an extended side property line. The Petitioners oppose the requests and argue that the extension is not necessary to make reasonable use of Respondent's dock. Further, they claim that, if allowed, the dock extension, together with the boat lift the Respondent proposes, will interfere with their view of the water. The proposed dock extension will not obstruct navigational activities. The natural shoaling process has resulted in the accretion of sand and silt along the Respondent's property. As a result, during low tides it is difficult to utilize the existing dock and would be impossible to use it for the proposed boat lift. Also, there is a grass flat landward of the proposed boat lift site upon which the Respondent's construction will not infringe. The construction of the lift at the terminus of the existing dock might disrupt that grass bed. The Respondent will not financially gain from the granting of the requested variances. The approval of the variances will not impair an adequate supply of light or ventilation to the adjacent properties, nor substantially diminish or impair the value of the surrounding property. The approval of the variances will not adversely affect the public health, safety, order, convenience or general welfare of the community. The approval of the variances will not violate the general spirit and intent of the Development Code. While the approval of the variances may alter the Petitioners' view from the side window of their residence, such alteration should not materially detract or injure their property or the property or improvements of others in the neighborhood. Other structures which Respondent could construct without the approval of variances could be more detrimental to the neighborhood.
Findings Of Fact On December 12, 1988, Petitioners filed an application with Respondent for a permit to construct improvements to real property seaward of the coastal construction control line (CCCL). Petitioners' property is located at 2400 North Atlantic Boulevard, Fort Lauderdale, Florida. The parcel of land owned by Petitioners measures approximately 50' in width and 140' in depth and is located in a primarily residential area of beachfront property with high property values. On this parcel is a residence that is approximately 1600 square feet in size. The residence is constructed on reinforced concrete pilings. There are many other residential and commercial structures in this area which are also constructed on reinforced concrete pilings. The improvements to this property seaward of the CCCL that Petitioners desire to make and that Respondent finds objectionable is the construction of a poured monolithic reinforced concrete slab patio supported by twenty-one reinforced concrete pilings. The patio would be approximately 27' by 50' in size. On November 17, 1987, Respondent approved an application filed by a previous owner of this property for the construction of a patio to be constructed with concrete pavers. Petitioners arranged to have the previously approved permit transferred to their name. The project contemplated by the subject application employs a different method of construction than the one permitted in 1987 because Petitioners desire to have a patio that is more attractive and is easier to maintain. Petitioners are also concerned that concrete pavers will be hazardous during a storm since they may be subject to being swept along by high winds and water. Petitioners have valid reasons for preferring the method of construction reflected by the subject application based on aesthetic and maintenance considerations. However, Petitioners did not establish that the proposed method of construction was necessary as a safety measure. To the contrary, the greater weight of the evidence was that blocks the size of the pavers to be used for the construction that has been permitted would not be propelled by either hydrodynamic or aerodynamic forces during a major storm as Petitioners contend. Instead, these blocks would likely be undermined during a major storm and, because of their weight, fall as the beach is eroded. Respondent has regulatory authority over the property in question. Respondent's regulatory authority, which includes rule making authority, is conferred by statute. Respondent's responsibilities include the preservation of the beach-dune area within its jurisdiction. There is a relationship between the siting of a structure, in terms of its proximity to the shoreline, and the likelihood that the structure will have an impact on the beach and dune systems. The subject patio is to be located within the beach-dune system. The patio Petitioners propose to construct on concrete pilings would have more of an adverse impact on the beach-dune system than a patio constructed of concrete pavers. During a major storm, greater erosion on the site around the pilings will occur as a result of scour. Following a major storm, the ability of a dune to re-form will be more inhibited if the patio is supported by pilings. Considering the hundreds of thousands of pilings that are already in place along the beach, the effect of the twenty-one pilings proposed by Petitioners, whether considered individually or cumulatively, will be insignificant. A patio is usually considered by Respondent to be a "minor structure". "Minor structures" are non-habitable structures that are generally designed to be expendable during a major storm event. Dune walkovers, viewing platforms, and decks are examples of minor structures. A patio constructed of concrete pavers would be another example. The nature of their construction permits minor structures to be placed more closely to the shoreline than major structures. The patio as proposed Petitioners has been properly categorized by Respondent as being a "major structure" since it is designed to withstand a major storm event. Respondent has not to date permitted any major structure as far east of the CCCL in this area of Broward County as Petitioner's proposed project. All major structures constructed on pilings that are that far east of the CCCL were built before permits were required. Respondent is concerned that the granting of the subject permit will set a precedent that will require the issuance of permits for the construction of other major structures as far seaward of the CCCL as the Petitioners' proposed project, and that such construction would result in a cumulative adverse impact on the beach-dune system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a final order which denies the subject permit. DONE AND ENTERED this 20th day of September, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact in paragraphs 1-6 and 8-10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraph 8 are rejected as being argument. The proposed findings of fact in the first sentence of paragraph 11 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 11 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in the third sentence of paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 13 are rejected as being conclusions of law that are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are rejected as being unsubstantiated by the evidence. While Petitioners' application included as a proposed condition to the issuance of the permit, a covenant running with the land that would require the property owner to reconstruct the beach-dune system in the event of destruction by a major storm, the evidence did not establish, as Petitioners proposed, that the covenant would "... protect the interests of DNR and its long term end of protecting the dunes and beaches". The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-2, 5-6, 10-16, 24-27, 30-31, and 33 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraphs 3 and 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 21 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 7-9 and 28-29 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraphs 17-20, 23, and 32 are rejected as being unnecessary to the conclusions reached. These proposed findings are incorporated in part as conclusions of law. The proposed findings of fact in paragraph 22 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made. COPIES FURNISHED: Kenneth G. Stevens 412 Northeast Fourth Street Fort Lauderdale, Florida 33301 Dana M. Wiehle, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Room 1003 Tallahassee, Florida 32399-3000 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ken Plante General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Nannette K. Scoggins is the owner of the real property located at 5622 Gulf Drive, Holmes Beach, Florida in Manatee County. Nannette K. Scoggins' property, the petitioner's property, 5624 Gulf Drive, and the other adjacent property, 5620 Gulf Drive, are zoned as "A-1 Hotel-Motel" under the City of Holmes Beach Zoning Ordinance. On November 13, 1983, Mrs. Scoggins submitted to DNR an application for a permit for construction seaward of the coastal construction control line (control line). The proposed project, known as Jansea Place, would consist of two multifamily dwellings, four units to a building, divided by a swimming pool. A portion of the most seaward building would extend a maximum of 57 feet seaward of the control line. By letter dated July 11, 1984, DNR notified petitioner that the department was considering the permit application. The petitioner responded by letter dated July 18, 1984, objecting to any construction seaward of the control line. On October 1, 1984, petitioner received notification that DNR intended to recommend approval of the permit. The permit was scheduled for a vote by the Governor and Cabinet on October 16, 1984. The staff of DNR recommended approval of the permit. By telegram dated October 15, 1984, the petitioner requested an administrative hearing, and on October 22, 1984, petitioner filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The application for permit No. ME-89 is a complete application for permit to construct seaward of the coastal construction control line. On October 5, 1983, the Superintendent of Public Works of the City of Holmes Beach certified that this project does not violate any ordinance of the City of Holmes Beach. The plans for the proposed project are signed and sealed by an architect registered in the State of Florida, and the submitted plans comply with the design standards established in Rule 16B-33.07, Florida Administrative Code to resist adequately the natural forces associated with a 100-year return interval storm event. The plans, specifications, drawings and other information submitted to DNR with the application for permit to construct seaward of the coastal construction control line are complete and accurate, and meet the requirements of DNR for that purpose. Under the provisions of Rule 16B-33, Florida Administrative Code, the application was determined to be complete on August 6, 1984. The proposed construction is located landward of an existing vertical concrete bulkhead. The seawall was built jointly by the Scoggins and Mr. McLean, who owns the property immediately to the south of the Scoggins' property. The seawall was built after the hurricane of 1972 because the existing dune system had been destroyed. Since that time, the mean high water line has continued to encroach landward to the point where it is now east of the wall. However, the seawall is not necessary for the protection of the proposed building. Although the seawall would fail under the direct impact of a major hurricane, the proposed building is adequately designed to withstand the impact erosion, the wave loads, the winds, and the water forces associated with a major hurricane. The necessity and justification for the project's location in relation to the control line is stated in the application, and petitioner has not challenged the necessity or justification. The City of Holmes Beach Zoning Ordinance requires that the buildings be separated by a minimum of 30 feet. Since the proposed buildings are separated by 30 feet, the proposed seaward building is located as far landward as possible without violating the zoning ordinance. Erosion and structural damage occurred as a result of Hurricane Agnes in 1972 and the "No Name" storm in 1982 in the area between 1,000 feet south of the Scoggins' property and 500 feet north of the Scoggins' property. Although the beach was fairly stable from 1974 to 1979, the beach began to erode in 1980. When the seawall was built in 1974, the dune line was even with the seawall. However, as can be seen from a comparison of the photographs taken in June of 1979 with those taken in early 1985, the beach has eroded since June of 1979 and the dune line is now several feet landward of the seawall. The DNR recommendation for approval of the Scoggin's permit application was based upon historical erosion data for the period between 1940 and 1974, which was the most recent data available that could be used to review the project. Mr. Clark stated that the application was recommended for approval based on the design of the proposed building and its alignment with existing structures built seaward of the control line. The proposed project is located landward of a line of existing structures. Although the adjacent properties have been affected by erosion, there was no evidence presented to show that the existing structures located seaward of the control line have been unduly affected by erosion. In 1974, when the seawall was being constructed, the worker building the seawall dug up part of the petitioner's property and destroyed the sea oats he had planted. However, the proposed project has a driveway encircling the building which would provide vehicular access to the seawall if necessary. The proposed project will partially obstruct petitioner's view to the southwest. However, there was no evidence presented that petitioner's property or the other adjacent property, would be adversely affected in any other way by the proposed project. There was no evidence presented that the proposed project would be affected by, or have an effect on, beach or coastal erosion. The proposed project would have no effect on the beach dune system.
Recommendation Upon consideration of the foregoing, it is recommended that DNR issue Permit Number ME-89 to Nannette K. Scoggins. DONE and ENTERED this 28th day of June, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
The Issue Whether Respondent Pierson should be granted variances to permit construction of a triplex on a lot 95 feet wide and 87 feet deep. To do so the three variances required are (1) of 5 feet in width, (2) of 13 feet in depth, and (3) 753 square feet in area (10,000 square feet required).
Findings Of Fact Don Curtis Pierson owns the north one-half of Lot 2 and all of Lot 3, Block 6, Revised Map of Clearwater Beach, and has owned this property for some 28 years. The property is zoned RM-20 and is high density residential developed. Pierson's lot is approximately 95 feet by 87 feet (approximately 82,500 square feet). The property is currently occupied by a duplex which was constructed according to Code, except for variances of zero setback from the coastal construction control zone and a 6 foot height variance to permit the construction of a building 31 feet in height. Appellant is the owner of a multifamily building adjacent to Pierson's property which was constructed before various code provisions became effective and was constructed to the lot lines without any setbacks. When Pierson applied for variances in 1983 to construct a triplex on his property, the Board of Adjustment Appeal granted setback variances of 10 feet in rear and front setback lines to permit the construction of a triplex on this property. Vasilaros appealed that grant, and on July 12, 1983 the undersigned heard that appeal. On August 31, 1983, an order was entered denying the setbacks, but approving the construction of a triplex on the lot less than 10,000 square feet in area. That approval was predicated upon then Section 131.020 of the Land Development Code which waived the area requirement for a lot of record. This Section was removed in the 1985 rewrite of the Land Development Code. Specific code provisions respecting the size of the lot on which a three family structure may be erected are in Section 135.044 which requires a minimum lot area of 10,000 square feet, and minimum lot width and depth of 100 feet each. The applicant's only hardship upon which the requested variance can be granted is the uniqueness of the property becoming nonconforming solely by reason of zoning changes.
The Issue At issue was whether Petitioner should be granted a permit from the Respondent, Department of Environmental Regulation, to excavate material in front of the Petitioner's seawall in Naples Bay, Collier County, Florida. The Petitioner owns a residential homesite lot in the Royal Harbor Subdivision in Naples, Florida. Royal Harbor is a waterfront oriented residential community devoted to single family residences; each residence either has waterfront' on Naples Bay or through a network of interior canals which provide navigational access to Naples Bay. All lots are bordered by concrete seawalls. The Concrete seawall bordering the Petitioner's property does not Immediately abut the water, but has an amounts of earth between the seawall and the water's edge, somewhat resembling a beach. It is this earth the Petitioner wishes to remove so that he may have his seawall abut the water which would facilitate the launching of a vessel from his property. Presently, it does not appear that the Petitioner could keep a boat at his property without building a lengthy dock from his seawall into Naples Bay. The Department of Environmental Regulation opposes the application in that it claims the excavation of this material would destroy an oyster bar which exists in front of the Petitioner's property and would eliminate an ecologically significant area. From the exhibits presented at the hearing and after consideration of the testimony, it appears that in the entire Royal Harbor development only the Petitioner's property lacks having the bay waters abut the seawall. The Petitioner's property is approximately one quarter mile from the channel in Naples Bay which is a low energy water body. That is to say, wave action does not become extremely forceful in this area because of the protected nature of the waterway. The Department of Environmental Regulation in part opposes the permit because they state to remove the berm from in front of the seawall would expose the seawall to direct wave energy which would cause turbidity within the waters. No direct evidence was presented that wee the seawalls in Naples Bay are in direct contact with the water that this ill fact does cause increased turbidity and therefore this testimony is rejected by this Hearing Officer as being merely speculative. On the other hand, the Petitioner made no showing that the project would actually be in the public interest except to show that the area in question was a relatively small area. Witnesses for the Department of Environmental Regulation stated that were this berm removed and the area converted to a shallow submerged bay bottom, oysters and marine vegetation would eventually propagate here, particularly if the bottom was excavated with a smooth contour. It is difficult to imagine after listening to all the testimony in this case how the granting of this permit would have a measurable environmental Impact. It would appear to this Hearing Officer that there could be some benefit to water quality from the granting of this permit by somewhat restoring Naples Bay to its original condition. Testimony was received that the entire Royal Harbor development was man-made and the removal of this fill would, in some slight degree, remove fill material that had been previously placed within the waters of Naples Bay. Testimony was also received from Mr. Thomas Provenzano, District Supervisor of the Department of Environmental Regulation, that in his opinion it would be environmentally acceptable for the Petitioner to excavate this berm from within five (5) feet of the concrete seawall. This appears to be a reasonable disposition of this dispute. Whatever destructive force the waves of Naples Bay might have on an exposed vertical seawall would be minimized by leaving a five (5) foot berm seaward of that wall and would in no way interfere with the Petitioner's intended use of his land; reasonable navigational access to Naples Bay. It is, therefore, RECOMMENDED: The application be granted with the proviso that the Petitioner leave a five (5) foot berm between Naples Bay and his vertical seawall. DONE and ENTERED this 3rd day of November, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Carole Haughey, Esquire Department of Environmental Regulation 2552 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Donald T. Frank, Esquire Suite A, U.S. Home Building 3174 E. Tamiami Trail Naples, Florida 33940 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION LYNN A. LUNDSTROM, Petitioner, vs. DOAH CASE NO. 76-1555 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to grant the application of the Appellant, the City of Clearwater for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida. (The pier was destroyed by the "No Name Storm of the Century" on March 12-13, 1993.)
Findings Of Fact On or about September 1, 1993, the City of Clearwater applied to the City of Clearwater Development Code Adjustment Board (the Board) for dock length, width and setback variances to reconstruct the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida, where it terminates at the waterfront in an "aquatic lands/coastal zoning district." The pier was 91.5 feet in length and 40 feet in width; it was set back 12.5 feet from the extension of the adjacent property lines. It was destroyed by the "No Name Storm of the Century" on March 12-13, 1993. Since the site has 65 feet of waterfront, reconstructing it to its previous dimensions requires variances of: (1) 59 feet in dock length (over the 32.5 feet allowed by the City of Clearwater Development Code); (2) 17.25 feet in dock width (over the 22.75 feet allowed by the Code); and (3) 7.5 feet reduction in setback from the extended adjacent property lines (below the 20 feet required by the Code.) Before its destruction, the public pier at the west end of Magnolia Drive in Clearwater had been in existence for many years. (The original version was built in approximately 1915.) The evidence is that the community at large desires to reconstruct the pier to its former dimensions. The old pier has historic and sentimental significance. It also serves as a recreational facility for residents without private access to a dock on the waterfront. Especially in the last several years before its destruction, public use of the old pier brought with it problems of misuse, loitering, litter, noise, trespassing, and crime. The police did not have the resources to prevent these problems. Criminal activity in the area seems to have decreased since the destruction of the old pier. As a result, the property owners closest to the pier do not want the public pier reconstructed at all, and certainly do not want it reconstructed to its former dimensions. They oppose the variance application. The conditions imposed by the Board (no deviation from the proposed materials and building plan, the erection of signs as to closing times to be enforced by the police, proper lighting, and the installation of an electronic safety system, including a gate, to be monitored by the police) will help alleviate many of the concerns of the neighboring property owners but are not guaranteed to eliminate them in their entirety. The water is shallow in the vicinity of the site, and a dock of a certain length is necessary for the dock to be used for boats of any appreciable size and draft. However, this condition is not unique to the particular site in question, but is uniformly applicable all along the City waterfront, and there was no evidence as to the length of dock required for adequate water depth for use by boats. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located. There is no competent, substantial evidence in the record from which it could be found that the granting of the variance will not impair the value of surrounding property.
Findings Of Fact Respondents' File No. 76-3-V-90, is an application by J. Edwin Chancey for a variance from the coastal construction setback line in Walton County in an area referred to as Grayton Beach. The application for variance involves approximately 450-470 feet of open beach which the applicant proposes to divide into nine 50-foot wide lots upon which he proposed to construct dwelling houses. As shown by Exhibit 5 the proposed dwellings would be no less than approximately 150 feet and no more than approximately 300 feet seaward of the coastal construction setback line previously established by the Department of Natural Resources for Walton County and the subject beach area. The Department of Natural Resources' staff has recommended to the Governor and Cabinet as the Department of Natural Resources that the variance be granted subject to eight stated conditions set forth in Exhibit 2 of this proceeding. These conditions include the following: "1. No construction will be more than 150 feet gulfward of the most upland property line. All building structures will be constructed on open piling foundations with floor elevations above 14.5 feet mean sea level and pile tip penetration below 5 feet mean sea level. * * * The variance, if approved, will cover the construction of nine 50 foot lots in accordance with the subdivision plans on file in this office. . . . Construction plans on each lot will be submitted individually for staff review and if approved will be issued a variance placard for construction. The placard will be valid for construction commencing within six months and completion within 18 months. In the event septic systems are used, these systems will be installed on the landward most portion of the lots." On July 15, 1975, the Department of Natural Resources approved a variance from the coastal construction setback line requirements for a development with 30 lots proposed for the land involved in this application and an additional and contiguous 930 feet of beach. However, the developer experienced financial difficulties and as a result deeded away approximately two-thirds of the beach front property involved in that variance and abandoned the variance. The developer in that instance was J. Edwin Chancey. The land involved in this proceeding is generally open beach dunes interrupted by lakes. The engineer for the Department of Natural Resources estimated that the elevation of the subject property for which a variance is sought ranges from +3 feet mean sea level to +7 feet mean sea level except for the remnants of several large dunes which range from +10 feet mean sea level to +13 feet mean sea level. The area was somewhat higher prior to Hurricane Eloise which caused the dunes to recede on the average 55 feet and reduced 20 foot dunes to their current elevation of +10 feet to +13 feet mean sea level. Several hundred yards east of the subject property there is a large body of water known as Western Lake. Western Lake is connected directly to the Gulf by an open water course presently located 200-400 feet east of the subject property. This natural water course historically migrates to the west from its present general location in a series of migrations. As its length increases its efficiency decreases so that periodically it moves back to the east to begin again its western migration. This natural water course, in its western migration, has, in the past, encroached on the property for which a variance is herein sought. It appears that, absent an artificial barrier, this natural water course is likely in the future to migrate westward to the subject property. This water course is sometimes deep enough to accommodate an outboard boat and can be 150 feet or more wide. During Hurricane Eloise, the construction site on the property for which the variance is sought had approximately 3 feet to 4 feet of standing water. The Applicant has not provided the Department of Natural Resources with evidence of his ownership of the property for which he seeks a variance. It appears from the evidence presented that the Applicant is not the sole owner of the property, but may be a part-owner with three other persons. The Applicant has not provided the Department of Natural Resources with a duly executed statement from the owners of record consenting to the work, activity, or construction for which the variance has been requested. No statement of the specific reasons why the Applicant feels that the variance should be granted has been received by the Department of Natural Resources. There have been communications between staff members of the Department and the Applicant or his representatives, but apparently these communications dealt with the details of the requested variance rather than the reasons why the variance should be granted. The Department of Natural Resources has not received a recent topographic survey showing the plot plan of the proposed construction. The Department has received a topographic survey and a plot plan showing the position of the proposed nine lots. (See Exhibits 5 and 9) Exhibit 5, on Lots 1, 2, 6 and 8 does show what appears to be the plot plan of some structure, though apparently, the Applicant does not necessarily intend to construct dwellings in accordance with those drawings. The Department of Natural Resources has not received construction plans showing cross sections of all sub-grade construction or excavation, elevations of the lowest floor and the first dwelling floor, or the details and justification for any proposed waste water discharge unto, over, under or across the beach and/or dunes. The Applicant has verbally communicated to the Department that if septic tanks are used on the subject property they will be located as far landward as possible with no discharge toward the Gulf. No further details of this proposed wastewater discharge have been submitted to the Department. According to the engineer for the Department there will be sub- grade construction. However, the plot plan (Exhibit 5) showing the location of the proposed nine lots is apparently the only plan received by the Department with regard to this request for a variance. No evidence was presented showing that the Department has waived any of the requirements for an application for variance set out in Section 16B- 25.05, F.A.C. The engineer for the Department whose responsibility it was to initially review and make recommendations with regard to the application for variance testified that he did not believe that he had the authority to waive the above requirements and that he did not know who, if anyone, within the Department had that authority. He did not make any recommendation that the requirements be waived and did not know if the requirements had been waived. The application for variance which is the subject of this proceeding was received by the Department of Natural Resources no earlier than November, 1975, and was given the Department File No. 76-3-V-90. The application is a series of documents rather than a formal application. The Applicant had sought variances for a larger piece of property which included the subject property which variances would have allowed up to 128 dwelling units. Those requests for variances predated that which is the subject of this proceeding and were apparently given different file numbers by the Department of Natural Resources and were considered separate applications. The Petitioners, W. A. Covell and Bonnie Covell, own property in the community of Grayton Beach upon which there is a house. Their property is approximately 700 feet or more from the open beach property for which a variance is sought and does not abut the subject beach property. The Covell's think that construction of the nine dwelling units which would be allowed by the variance would lower the value of their property. Petitioners Jennings N. Byrd and Mrs. J. N. Byrd own property in the community of Grayton Beach upon which there there is a dwelling house. Their property is approximately 750 feet to 800 feet from the beach property for which a variance is sought. Mr. Byrd testified that he felt his interest in objecting to the variance was the same as that of any other Florida citizen. He further testified that he did not mind his view being obstructed by the dwelling units proposed by the Applicant. All Petitioners and their families have used the open beach area of which the property for which a variance is sought is a part, for many years as a picnic, sunning and swimming area. Petitioners G.A.P. Haynes and Betty H. Haynes own, in the name of Mrs. Haynes, property which is immediately adjacent to Applicant's property. The Haynes own a dwelling house which is located approximately 100 feet from Applicant's property. It is the opinion of the Haynes that the construction of the nine dwelling units in front of their house as proposed by the Applicant would lower the value of their property. The Haynes further indicated their concern that construction on the beach in front of them, because of the apparent inherent instability of the shifting sands, would have an adverse impact upon their house in times of high wind and water. They recounted seeing water standing, as the result of storms other than hurricanes, on Applicant's property and near their house.
Findings Of Fact Respondent Pierson is the owner of a parcel of land located at 7 Heilwood Street, Clearwater Beach, Florida. This parcel consists of the North 1/2 of Lot 2 and all of Lot 3 in Block 6, Revised Map of Clearwater Beach, according to the plat thereof as recorded in Plat Book 11, page 5, of the Public Records of Pinellas County, Florida. The westwardly portion of the parcel is beach front property on a coastal barrier island. When the subdivision known as Clearwater Beach Subdivision was platted, fifteen lots were placed in Block 6. The three beachfront lots were smaller in area than the other twelve lots which were uniform in size and shape. However, when Lot 2 was divided and the northern half went to Lot 3 and the southern half to Lot 1, fourteen similar parcels were created in Block 6. Pierson purchased the parcel in question as unimproved property in Clearwater Beach Subdivision in 1962. This was nine years prior to the creation of Coastal Construction Control Lines by the Florida Legislature. The establishment of the Coastal Construction Control Line for Clearwater Beach in 1977, caused building setbacks previously established by the City of Clearwater for this unimproved parcel to become even further restricted. The Coastal Construction Control Line deleted the seaward 5/8ths of the Pierson property on which a building could have been erected previously on Clearwater Beach. Few parcels on this island were impacted as severely as Respondent Pierson's by the creation of the Coastal Construction Control Line because most of these parcels already contained permanent improvements. This parcel remained vacant until Respondent Pierson erected a duplex in 1986. This improvement was constructed according to the Land Development Code in effect at the time with the following exceptions: A variance of zero setback from the Coastal Construction Control Line and a 6 foot height variance to permit construction of a building 31 feet in height were granted by the Board. At the time the variances were granted, Respondent had the option to build either a duplex or a triplex at the site. Respondent seeks to expand this structure and to convert it into a triplex. In order to complete the planned expansion, a variance of 18 feet was requested from the Board to allow construction 7 feet from the Heilwood Street right-of-way. Currently, the Code requires a 25 feet setback from a street right-of-way. In addition, a variance of two feet from the eastward property boundary was requested to allow construction up to 6 feet from this side property line. Code provisions require an 8 feet setback. The existing structure is 6 feet from this side property line. The proposed addition to the current structure would continue with that eastern setback of 6 feet to the north, with an additional 25 feet of structure extending towards Heilwood Street. The expansion of the building to the west would terminate at the Coastal Construction Control Line. The property is zoned RM-20 with a land use plan designation as high density residential developed. The parcel is 95.12 feet in length and 87 feet in width, an area of 8,242.38 square feet. Ordinarily, a parcel with these dimensions is of sufficient size to build the structure proposed by Respondent Pierson without violating the street right-of-way setback and the side property line setback mandated by the Code. In this case, setback variances are required to complete the triplex because of the Coastal Construction Control Line's location on the parcel. In his application for variance, together with evidence presented, Respondent Pierson contends that the variance request arises from a condition unique to the property. The "unique" condition being that he did not build what he now wants to build on the property before the land use restrictions currently in place limited development of the parcel to such an extent. All other lot owners in the locale chose to develop their lots earlier than Respondent did, under less restrictive conditions. As a result, Respondent Pierson's duplex is setback further from Heilwood Street than the other buildings. Deciding when and what to build as a real property improvement is part of real estate ownership. Now that Respondent Pierson wants to change his previous development decision to reflect his current intended property use, he wants the same setback benefits as those acquired by other property owners on Heilwood Street who developed their parcels during past time periods with less restrictive setbacks. The Coastal Construction Control Line and the building setbacks have been placed on the property because of legitimate state and local concerns. A driveway was placed by Respondent Pierson in front of the duplex as it faces the water at the end of a dead-end street. The location of this driveway and the existing setback of the duplex from the road beyond all of the other property setbacks on this street, make this portion of Respondent's property a convenient area for traveling cars to turn around or to park while using the beach. Respondent Pierson contends that the variances he has requested will discourage the use of his land as a turnaround area, because it would be clear to those attempting to use his driveway that they were trespassing. His primary interest is to maintain his private interests in the property which should go beyond those currently enjoyed by the public. It is a desire for these rights that control his request for the variances as opposed to a desire to secure a greater financial return. The variances granted by the Board will not be materially detrimental or injurious to the Vasilaros property. The variances, however, could impair the present value of the Petitioner's property because the expansion of the Pierson duplex into a triplex would block a large amount of the Gulf view the Vasilaros building was designed to acquire. Petitioners' lot is in the same subdivision as the parcel owned by Respondent Pierson. Even before the Vasilaros lot was improved, the landowners knew or should have known that another parcel separated this lot from the beach. Respondent Pierson is under no statutory or contractual obligation to restrict his land use to allow Petitioners a view. The variances granted would result in a nonconforming building. All of the other structures in the immediate vicinity are nonconforming because these structures were built before current zoning regulations were adopted. Respondent Pierson seeks to blend with the neighborhood on the street and to have the same nonconforming advantages. Respondent Pierson could convert the current structure into a triplex. The apartments would be much smaller than the ones contemplated in the proposed plan. He seeks to create the third apartment for his own retirement home. On August 22, 1991, the Board granted a variance of 15 feet to permit construction of a triplex 10 feet from a street right-of-way and a second variance of 2 feet to allow construction up to 6 feet from the side property line to the south because the Board found that the applicant has substantially met all the standards for approval, as listed in Section 137.012(d) of the Land Development Code. More specifically, the Board found: a) The variances arise from a condition which is unique to the property and not caused by the applicant; b) The Coastal Construction Control Line restricts the use of two- thirds of the property, allowing only 19 percent use, c) The particular physical surroundings, shape, or topographical conditions involved and the strict application of the provisions of this Development Code would result in unnecessary hardship upon the applicant; and d) The variances granted are the minimum necessary to overcome the hardship created by the minimal use of the property subject to the requisite building permit being obtained within six months from the date of this public hearing.
Recommendation Accordingly, it is ORDERED that the variances granted by the Board be set aside and the application for the variances submitted be denied. DONE and ENTERED this 11th day of February, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: JOHN T BLAKELY ESQ PO BOX 1368 CLEARWATER FL 34617 GEORGE W GREER ESQ 600 CLEVELAND ST - STE 685 CLEARWATER FL 34616 MILES LANCE ESQ PO BOX 4748 CLEARWATER FL 34618 CINDIE GOUDEAU/CITY CLERK CITY OF CLEARWATER PO BOX 4748 CLEARWATER FL 34618 MICHAEL WRIGHT/CITY MANAGER CITY OF CLEARWATER 112 S OSCEOLA AVE CLEARWATER FL 34618 VERONICA E. DONNELLY 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 11th day of February, 1992.
The Issue The issue for consideration in this case is whether Charlotte County should be issued a permit to dredge Stump Pass and Deposit the spoil therefrom on the beach south of the pass.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Lemon Bay Conservancy, Inc., was a nonprofit corporation in the State of Florida whose membership is made up of individuals affected by the health of Lemon Bay. The Department of Natural Resources is the state agency responsible for the regulation and issuance of coastal construction permits pursuant to Chapter 161, Florida Statutes, and Charlotte County is a political subdivision of the State of Florida and the applicant for the permit to dredge Stump Pass which is located within its geographical boundaries. Stump Pass is a maintained coastal inlet located on the west coast of Florida between Manasota Key to the North and Knight Island to the South. It has been in approximately the same location since 1925. It is a wave dominated pass, which means the wave energy, which comes predominantly from the west/northwest, is greater than the tidal energy in the pass, and this wave action has caused the Pass channel to migrate to the south since 1974. The Pass was last dredged in 1980. For various reasons, in November, 1986, the County applied to DNR for a coastal construction permit to "maintenance dredge" a portion of the Pass and utilize the dredged material for renourishment of adjacent beaches on Knight Island. A permit for this type of work is required by the provision of Section 161.041, Florida Statutes. As the application was being reviewed by the Department, several areas were identified for modification. Among these were a reduction in the amount of material to be dredged to 136,000 cubic yards; more specific identification of the beach area to be renourished, (3,000 feet along the west side of Knight Island); and the development and submittal of a Sea Turtle Protection Plan. These modifications were made and submitted by the County in November, 1989, and the application was deemed complete on August 27, 1990. On October 11, 1990, the Department issued its Notice of Intent to Issue the permit. In doing so, it recommended the inclusion of 10 specific conditions. Since the proposed project was determined not to have a significant adverse effect on the sandy beaches, no mitigation plan was required. Since the placement of the sand from the dredging would be on the beach at Knight Island, which is downdrift of the water flow, it was consistent with the requirements of Section 161.142, Florida Statutes. Stump Pass, at its most restrictive point, is less than 100 feet wide. It is an unmarked channel. The existing channel is approximately one mile in length. The channel proposed by Charlotte County, as approved by the Department, would be approximately one half mile in length. In preparing its application for submittal to the Department, the County retained Dr. Michael S. Stephen, a consultant with Coastal Engineering, Inc., and an expert in coastal geology and engineering geology, to evaluate the proposed dredging project, one purpose of which is to provide a safe, navigable channel between the Gulf of Mexico and Lemon Bay and the west coast of Florida waterway system. In the course of his evaluation, Dr. Stephen took bathometric measurements at Stump Pass which were used to define and create a map of the water depths in the area. According to his proposal, the fill from the dredging would be placed on the shore south of the pass in an area which is accompanied by a 10 foot wide public easement which parallels the shoreline and runs north and south along the beach. In light of this, the proposed project would not interfere with the public's right to access to the area except during the construction period. This project is significantly similar to a prior dredging in 1980 and the channel will be essentially the same as on that occasion. A significant difference, however, is that the spoil will, in this case, be placed south of the pass whereas in the previous dredging it was placed on the state park to the north. One of the factors considered by the County in its decision to apply for the permit for this project was the determination that the existing channel is not safe for boats to navigate other than during calm weather in a single file. Dr. Stephen believes that the proposed channel would be safer to navigate because it is shorter than the existing channel; provides a more direct access from the inland waters to the Gulf; and avoids the cross-wave and cross-wind impacts experienced by the use of the current pass. There is substantial evidence by experienced boaters who are commercial fishermen as well as recreational boaters who contend that the safety of the pass at the present time is not an issue. Most of these opponents indicate they have had little if any difficulty in traversing the pass under all but the most extreme conditions, and that preparation plus good judgement will, in most cases, result in a safe transit. A more comprehensive discussion of this subject will be found in several paragraphs below. Historical documentation considered by Dr. Stephen in his analysis of information dating back to between 1895 to 1975, shows that the inlet has been in much the same location since 1925. In 1895, however the pass was north of its present location. Another concern of the Department when determining the appropriateness of a coastal construction application is engineering data relating to inlet stability. This concept considers the inlet as a whole and directs examination of three areas. One is lateral movement; a second is cross sectional stability, (the ability of the inlet to remain open); and a third is hydraulic stability. As was noted above in the discussion concerning the location of the inlet back to 1895, the fact that it has remained in its same location since 1925 indicates that from a migratory standpoint, it is considered stable. In addition, the throat of the pass, the actual area where the water comes through from Lemon Bay out to the Gulf, is also stable in terms of cross sectional stability or "closure parameters." Only the continuation of the channel out into the Gulf has moved to a significant degree. It is this outer portion, the outer channel of the inlet, where the proposed dredging is to take place. It is presently in a north/south configuration, having migrated from the predominantly east/west direction in which it was dredged in 1980. Expert testimony indicates that this migration has been the result of the west/northwest dominant wave action. Evidence also indicates that if this outer channel were not maintained once dredged as proposed, it would return to the location it currently occupies. As a result, Charlotte County seeks to include a maintenance dredging plan at 3 to 5 year intervals as part of its proposed management scenario. Petitioners claim that the current inlet and channel are in their natural locations, and that the channel which will result from the proposed dredging will be unstable and immediately begin to migrate back to the location of the "natural" channel which it presently occupies. In response, the County asserts that while the current channel may indicate stability in the short run, given the historic hydraulic instability of the channel, its current location and alignment are likely to change in the future. As the channel has moved toward the south, it has tended to lengthen and as a channel lengthens, the less hydraulically stable it is as a result of the frictional drag of the water flow through the channel. The longer the channel, the greater the drag, and the greater the drag, the greater the potential for flow interruption. When the channel becomes hydraulically unstable, therefore, hydraulic pressures cause a tendency to cut through the shoals lining the channel and it is the County and Department position that a shortening of the channel, as the proposed project would do, would improve the hydraulic stability of the new channel. Nothing was presented by Petitioners to dispute this and it is so found. The statute also requires the Department to take into consideration shoreline stability when considering an application for a coastal construction permit. While there has been little erosion or accretion to the shoreline north of the pass where the spoil from the 1980 dredging was placed, the area south of the pass has experienced significant erosion due, in part, it would appear, to the southerly migration of the outer channel. Immediately to the south of Monument 23, over a stretch approximately 3,000 feet long, sand has been accreting to the extend of approximately 50 to 60 feet per year. However, south of that area, for approximately 5,000 to 11,000 feet south of the inlet, the shoreline has eroded at approximately 10 feet per year. It is in this eroding area that the sand dredged from the channel would be placed. There are varying theories as to the cause of the shoreline instability the area has experienced. Some place the blame on the 1980 dredging project; others on the current location of the outer channel. Other factors may play a part, however, including major storms, and there is insufficient evidence available to justify the establishment of a causal relationship. Nonetheless, as a condition of the permit, the Department has indicated a requirement for the County to conduct detailed monitoring of the area to determine whether any adverse impacts are being caused by the project, so as to allow the taking of immediate mitigative action through its inlet management plan to moderate the impacts. Ordinarily, the Department, by its standing policy, requires applicants for permits to conduct inlet maintenance activities to submit an inlet management plan prior to approving the application. This plan is required to address various impacts that the activity would have on adjacent coasts and shorelines, and is primarily a means of providing protection of the inlet and coastal system from the harmful effects of construction activities. Here, at the time the County's application was filed, that policy had not been adopted. As a result, no management plan was filed. However, the filing of a management plan within 6 months of the dredging done under the permit has been made a condition of the permit, and any plan filed will require approval by the Governor and Cabinet. It is, generally, the policy of the Department to not allow coastal construction activities in natural inlets. A natural inlet is one that has developed by the natural coastal formulation process, and which has not been modified by man. The Department contends that Stump Pass is not a natural inlet but instead, a "maintained" inlet because portions of the original 1980 dredging are still in place and only the outer channel is subject to the present application. Though the channel dredged in 1980 may have cut through the natural point of entry and exit of water from the Gulf to Lemon Bay and return, the fact is that the depth of the channel is the result of that 1980 dredging and the channel has maintained itself naturally thereafter. It cannot be said, however, that Stump Pass is a natural pass since it includes more than just the outer channel and that additional area, the throat, is still under the influence of the 1980 dredging. Petitioners claim that the Department's program directive 950, which prohibits the alteration or maintenance of any inlet or pass unless a management plan is submitted along with the permit application has not been complied with here and, therefore, approval of the instant application is prohibited. Further, Petitioners urge that the maintenance plan being prepared by the county is not an inlet management plan, which is called for by the program directive. The Department asserts, however, that though the directive was signed by the Executive Director of the Department, it was intended as an internal policy directive only to be used as a tool for coordination between the Department's separate divisions, and because of concerns expressed by various division within the Department, it has never been implemented. It is currently still under revision and the Department has elected not to apply its provisions to this case. In fact, in a previous application, the Department allowed the applicant to proceed with its project without a management plan. The management plan was required, subsequent to accomplishment of the work, as a condition of the permit. Another factor for consideration is the impact of the proposed project on the beach dune system and its effect on the habitat of the sea turtle. The expert testimony of record establishes that the project, rather than having an adverse effect on the turtle population, would have a more beneficial effect by providing a more suitable location for nesting. The site established for the deposition of the dredged spoil is an area of beach currently suffering severe erosion problems, and the placement of sand at that location would provide beach profiles similar to those currently existing on the County's natural beaches. In addition, to protect the existing nesting habitat of the turtle, the Department has required and approved a sea turtle protection plan which, it contends, will guarantee that the project will not have an impact on nesting populations of sea turtles. The testimony of Mr. LeBuff, clearly an expert in the management of the sea turtle population, establishes that the beach area provided to the turtles as a result of this project will consist of a sandy, natural, compatible beach material that is not going to be harmful, and the final slope of the reconstructed beach will be compatible with the natural slope of the beaches within the County. As a result, he is satisfied, and it is found, that there will be no detrimental effect to the turtle population. In its application in support of the permit, the County, and the Department in defense thereof, both contend that the primary purpose for the dredging of Stump Pass is to provide a safe, navigable channel between the Gulf and the waters of Lemon Bay. In support of its claim, the County presented the testimony of several charter boat captains, professional fishermen who have lived in the area for a number of years and who are totally familiar with the pass, having traversed it on numerous occasions under just about every condition. Captain Collette contends that the current maximum depth of the pass is between 4.5 and 5 feet. In the winter tide, it is much shallower with a depth often under 3 feet. Captain Collette refuses to run night charters through the pass because, he contends, it is too dangerous. During foggy weather and thunderstorms, because of the lack of visibility and a paucity of proper markers on the channel, he will not use it. The closest other pass to his anchorage is 13 miles away which, at normal running time, takes between 45 to 60 minutes. Stump Pass is only 3 miles, or 15 minutes, from his anchorage. He has experienced trouble with the channel, especially when the wind is from the west, and he believes that the proposed channel, with its more east/west orientation, will be safer than the current channel. In his opinion, additional markers in the channel would help, but not much. In order to be safer, the channel would have to be a non-moving channel, and he believes that since the proposed channel will be maintenance dredged, it would qualify as such. Petitioner, on the other hand, contends that the channel is safe and is used by numerous boaters safely on a regular basis. The current depth of the channel at the throat of the pass is between 13 to 15 feet at mean low tide. At waypoint 2, in the outer channel, it is 9 to 10 feet, and at waypoint 4, at the southern end of the outer channel, it is 7 feet at mean low tide. The normal tide range at Stump Pass is 1.5 feet, with the exception that during winter and summer, the tides may be as much as 3.5 feet. Petitioner urges, and it is found, that the current channel at Stump Pass has been, since 1985, safely navigated by loaded commercial fishing boats as large as 39 feet in length and which draw in excess of 5 feet of water. Many of these commercial fishermen use the pass at night and in periods of low visibility, though Captain Collette may choose not to. If a boater can read the seas and the breaker bar, Captain Davids, testifying on behalf of the Petitioner, contends that local knowledge of the pass is not necessary. Unfortunately, however, many recreational boaters who make up by far the greatest percentage of users of the pass, may not have the requisite skills to the degree Captain Davids does. Nonetheless, under most conditions, Stump Pass can be safely navigated by recreational boaters who use common sense and who traverse it in a careful, cautions manner. Mr. Atwater, President of the Lemon Bay Conservancy, and himself an experienced boater, opined that the average recreational boater who uses the pass as access to the Gulf has a boat equipped with a compass, depth sounder, VHF radio, and LORAN radio signal navigation device. This may be a more optimistic than factual appraisal of the average boater's equipment, however. In sum, and considering the evidence, it is found that as it currently exists, Stump Pass is less than optimum in its navigability to many average boat owners a good portion of the time, but there has been no evidence presented to conclusively establish that it constitutes a serious safety hazard to the average recreational boater who utilizes common sense in traversing it. The County's application, along with the supporting information accompanying it, was received initially by the Department in December, 1986. It was an application for a maintenance dredging of Stump Pass back to its 1980 condition, and the Department views the project as primarily a maintenance dredging of the outer channel through the ebb tidal shoal. The application was assessed by the Department staff, along with engineering information submitted, and the Department then prepared an agenda item for the Governor and Cabinet recommending approval with special permit conditions. These include, among other things: the standard conditions required for approval of developments seaward of the coastal construction line; the submittal of plans and surveys for the project prior to the start of work; written authority for subsequent maintenance dredging prior to their accomplishment and the placing of future spoil; no additional maintenance dredging without the approval of the Governor and Cabinet of a management plan, (the purpose for this is to allow the Department to monitor the performance and evaluate and provide for mitigation of adverse impacts); the submittal of a sea turtle protection plan before issuance of a notice to proceed, (the subject plan has been received and approved); review of the permit at the five year point; and a proper placement of the spoil. A majority of those conditions have been treated in the findings previously made. The standards used to review the application are found in the provisions of Chapter 161.041, Florida Statutes, and Rule 16B-24, F.A.C.. In its analyses, the Department considered those factors required by the statute and as to the engineering, found it to be adequate. As to the design and effect on the inlet and adjacent beaches, those factors were found to justify approval of the project. Design features were found to be acceptable, and any adverse impact potential to the beach and dunes system were found to be minimal to the point there was none anticipated. Taken together, the Department concluded that the project was consistent with the requirements of both the statute and the rule. On cross examination, Mr. Leadon, the Department's expert, admitted that the proposed channel has the potential to, and a likelihood of, migrating to the south. Department policy is to let natural passes and systems take their natural course. However, this inlet has moved to the point where, in the Department's opinion, it is creating erosional stress to Knight Island. Should the pass continue to move in its current direction, it might create additional erosion of that island. The inlet has been left to take its course since its last dredging in 1980. As a result, it is much like a natural channel at this time, but for the purposes of this application, the Department considers the proposal to be a maintenance dredging of a previously dredged channel, though there has been no other maintenance dredging since 1980. Usually, a maintained channel is dredged every 2 to 3 years, but while the outer channel has migrated, the throat, which was dredged in 1980, has maintained the width and depth of that dredging. This position is found to be reasonable and sustainable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered granting to Charlotte County a coastal construction permit to maintenance dredge Stump Pass and place the dredged material on the Knight Island shorelines consistent with the conditions imposed thereon by the Department. RECOMMENDED in Tallahassee, Florida this 14th day of August, 1991. ARNOLD H. POLLOCK 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 14th day of August, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO 91-0471 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER LEMON BAY CONSERVANCY, INC. 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. Rejected as not proven. - 10. Accepted. Accepted. & 13. Accepted. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a comment on the evidence. Not a proper Finding of Fact. Rejected. Accepted. Not a proper Finding of Fact. Accepted. First sentence accepted. Balance not a Finding of Fact but a Conclusion of Law. Accepted. Accepted in part and rejected in part. The shoreline described has moved little during the time described, but as the channel moved south in later years, the shoreline to the south on Knight Island has eroded. & 27. Accepted as comment on the evidence. Not a Finding of Fact but a Conclusion of Law. Accepted. Not a Finding of Fact but a Conclusion of Law. Not a Finding of Fact but a Conclusion of Law. Not a Finding of Fact but argument. & 34. Not a Finding of Fact but a comment on the sufficiency of the evidence. Accepted. Accepted. - 40. Accepted and incorporated herein. 41. - 43. Accepted and incorporated herein. 44. - 46. Accepted. Rejected as not supported by the evidence or record. Not a Finding of Fact but speculation. Accepted. - 53. Accepted. 54. & 55. Accepted. Not a Finding of Fact but legal argument. & 58. Accepted. Legal Argument. & 61. Irrelevant legal argument. Rejected. Not a Finding of Fact but a Conclusion of Law. Irrelevant and exhibit not admitted. FOR THE RESPONDENT, CHARLOTTE COUNTY 1 - 3. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. & 8. Accepted. 9. & 10. Accepted and incorporated herein, 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Accepted and incorporated herein. & 25. Accepted. Accepted. No such proposed Finding of Fact. & 29. Accepted. Accepted. Accepted. FOR RESPONDENT, DEPARTMENT OF NATURAL RESOURCES 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. & 8. More a citation of authority that a Finding of Fact, but accepted. Accepted. & 11. Accepted and incorporated herein. 14. & 15. Accepted. 16. - 20. Accepted and incorporated herein in substance. Not a Finding of Fact but a comment on evidence and background. Accepted. & 24. Accepted. 25. & 26. Accepted and incorporated herein. 27. - 29. Accepted. 30. & 31. Accepted but not controlling. COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Dana M. Wiehle, Esquire Department of Natural Resources 3900 Commonwealth Blvd. Mail Station 35 Tallahassee, Florida 32399 Philip E. Perry, Esquire Patricia A. Petruff, Esquire Dye & Scott, P.A. P.O. Drawer 9480 Bradenton, Florida 34206 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Mail Station 10 Tallahassee, Florida 32399-3000 Ken Plante General Counsel DNR 3900 Commonwealth Blvd. Mail Station 10 Tallahassee, Florida 32399-3000
