Findings Of Fact In 1976, Appellant applied for and was granted a variance of six parking spaces to authorize the opening of a raw oyster bar at 37 Causeway Boulevard, Clearwater, Florida. The variance limited the hours of the raw oyster bar from 5 p.m. to midnight. Appellant's primary business is the operation of Clearwater Beach Seafoods which at present consists of a retail fish market open from 9 a.m. to 6 p.m., a raw oyster bar open from 5 p.m. until midnight, and a restaurant opened from 5 p.m. to midnight. This facility is located at the Clearwater Beach Marina on property owned by the City of Clearwater and leased to Appellant for the purposes above noted. City-owned parking facilities surround the property occupied by Appellant. At the time Appellant applied for and was granted the variance of six parking spaces to allow the raw oyster bar to open, the city-owned metered parking spaces surrounding Appellant's business provided for 12-hour parking. This allowed people to park their cars in those metered spaces and proceed to the beach for the day. By limiting Appellant's operating hours to opening at 5 p.m., the oyster bar was expected to have little impact on parking as there would be little demand from beach- goers for parking after 5 p.m. Subsequent to Appellant receiving the variance for the oyster bar, the City changed the marina parking meters from a 12-hour limit to a one hour limit thereby inhibiting the use of these parking facilities by beach-goers. Special parking permits can be obtained for those patrons of the charter boats who take half-day or whole-day chartered trips. As a result of this change in parking limits, more parking is available at the marina for those persons having business at the marina, including those patronizing the businesses located at the marina. Appellant's principal business is the retail fish market. In conjunction with this business, Appellant allows patrons to take out sandwiches or raw oysters during the hours the fish market is open. Many of these patrons of the take-out facility take the food to the open, but covered, raw oyster bar area where tables and seating are provided. It is to better accommodate those patrons presently taking food from the take-out counter as well as to relieve congestion in the fish market that Appellant has made the current request for a variance in the hours of operation. Appellant's lease with the City of Clearwater currently authorizes the operation of the raw oyster bar from 11 a.m. to midnight, but the variance limits the opening hour to 5 p.m. If the requested variance is granted, Appellant will be able to have a waiter at the raw oyster bar facility from 11 a.m. to police the area and to take orders from customers desiring to have lunch at the facility rather than requiring those customers to first go to the fish market for their food. By keeping these customers out of the fish market, the small public area there would be less crowded. The Land Development Code of the City of Clearwater has no provision for modifying restrictions placed on variances other than repeat the variance request.
Findings Of Fact Appellant, Nostimo, Inc. (Nostimo), owns lots 8, 9, 10 and 11, Block 8, revised plat, in a Clearwater Beach subdivision located at 32 Bay Esplanade, Clearwater, Florida. Appellant, Pick Kwik Food Stores, Inc. (Pick Kwik), operates a Pick Kwik convenience store at the location. The subject Pick Kwik store is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City of Clearwater and separated from the mainland by Clearwater Harbor. Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. Mandalay narrows from four to two lanes just south of the subject location. From the point at which it narrows to two lanes, Mandalay furnishes the only access to the primarily residential neighborhoods to the north. Bay Esplanade is a much shorter street that runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor. Before the Pick Kwik store began to do business at the location, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on- and off-premises consumption of alcohol. The lounge did not generate substantial numbers of customers and associated traffic. It was very small, and a congregation of four or five customers at any one time was a large crowd. In general terms, the location is surrounded by mixed uses, including a 7 rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. In addition to a number of commercial establishments within the immediate area, there are tennis courts, a parking area, community boat ramp, soccer field, playground and public park. In the area, there are apartments, rental units and condominiums, including some directly behind the subject location. There is a church a block away, and there is a playground next to the church that is used by area young people, many of whom use bicycles as their means of transportation. On April 25, 1989, Nostimo and Pick Kwik applied for a conditional use permit to sell beer and wine, for off-premises consumption, at the location. The application was heard at a meeting of the City of Clearwater Planning and Zoning Board (the Board) on June 14, 1989. The Board denied the application, and Nostimo and Pick Kwik appealed under Section 137.013 of the Clearwater Land Development Code (the Code). The appeal was heard by a Division of Administrative Hearings Hearing Officer, who entered a Final Order on October 9, 1989, upholding the denial. The Hearing Officer found in his Final Order in part: At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick [sic] convenience store. Further, Mandalay Avenue is an important north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast, the police officer distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours. Finally, it has been Lt. Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick [sic] store and a former employee of the 7 when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6). On November 7, 1989, Nostimo and Pick Kwik filed a two-count complaint in circuit court: Count I, a petition for common law certiorari review of the Hearing Officer's decision; and Count II, attacking the constitutionality of Section 137.011(d)(6) of the Code. On November 19, 1990, the circuit court entered orders (1) denying the petition for common law certiorari and (2) granting a motion to dismiss Count II. It was represented that a Final Judgment of Dismissal, addressed to Count II, was entered on March 22, 1991, and that Nostimo and Pick Kwik appealed the final judgment to the District Court of Appeal, Second District of Florida, where it remains pending. On April 16, 1991, Nostimo and Pick Kwik filed another application for a conditional use permit to sell beer and wine, for off-premises consumption, at the 32 Bay Esplanade location. The application is identical to the one filed on April 25, 1989, except in one respect: the second application provides that sales of alcoholic beverages at the location would not begin until 9:00 a.m., whereas the April 25, 1989, application was for a permit to begin sales of alcoholic beverages at the location at 8:00 a.m., as authorized by local ordinance. During the staff review of the April 16, 1991, application, the applicants also offered to agree to other conditions or restrictions in response to staff concerns: (1) the applicants would provide a security guard to patrol its three Clearwater Beach establishments between the hours of 8:00 p.m. and 2:00 a.m. on Friday and Saturday nights, with monitoring reports submitted to the City Planning and Development Department not less than quarterly; 2/ (2) the applicants would obtain the requisite alcoholic beverage separation distance variance from the City Commission; 3/ (3) the applicants would obtain the requisite occupational license within six months of the date of the public hearing on the application; and (4) the applicants would restrict the hours of operations for alcoholic beverage sales to 9:00 a.m. until 12:00 midnight Monday through Saturday and 1:00 p.m. until 12:00 midnight on Sunday. At the Board hearing, the human resources manager for Pick Kwik outlined Pick Kwik's procedures and guidelines for the sale of alcohol. There is a policy manual in each store as well as a handbook provided to each employee outlining the procedures to be followed regarding the sale of alcohol, including procedures to prevent sales to minors and disciplinary action if the procedures are not followed. All employees also attend an orientation which includes responsible vendor training. These policies are enforced by Pick Kwik through monthly inspections. There are 17 existing establishments fronting on Mandalay Avenue that sell alcoholic beverages. Just three are north of Bay Esplanade, including the 7 There are another three establishments selling alcoholic beverages south of Bay Esplanade fronting on streets other than Mandalay. There also is one fronting on Bay Esplanade. There is one restaurant on Mandalay north of Bay Esplanade that has a pending application for a permit to sell alcoholic beverages. At the Board hearing on the April 16, 1991, application, held on July 30, 1991, opponents of the application introduced in evidence the record of the hearing held on June 14, 1989, on the April 25, 1989, application filed by Nostimo and Pick Kwik. Included in the record of the prior hearing was the testimony of Lt. Palumbo, who expressed concerns about increased traffic, loitering and rowdy behavior if the conditional use permit were issued. Opponents of the application also introduced in evidence at the Board hearing the Final Order entered by the Hearing Officer in the prior proceeding. See Finding of Fact 6, above. The Board considered the record of the prior proceeding in evaluating the April 16, 1991, application. But the Final Order in the previous proceeding seemed to be based on a misapprehension that the Pick Kwik store would be open for the sale of beer and wine 24 hours a day. See Finding of Fact 6, above. In addition, given the existance of the 7 street, the evidence presented in the hearing on the April 16, 1991, application put in perspective Lt. Palumbo's testimony that allowing the sale of beer and wine at the Pick Kwik would "generate larger volumes of traffic and customers, particularly during the evening hours" and would "have a negative impact on 'community services' by placing a greater demand on police resources." At the Board hearing, the staff of the City Planning and Development Department recommended approval. 4/ The City's Planner, Scott Shuford, testified that traffic no longer was considered to be a substantial problem. The City Traffic Engineer did not anticipate a substantial increase in traffic as a result of granting the application. The traffic experts had difficulty differentiating between a convenience store selling beer and wine, and one that does not, primarily because they were unaware of any other convenience store that does not sell beer and wine. But the evidence was clear that, since the 7 and wine across the street from the Pick Kwik location, there would be only a slight increase in traffic resulting from selling beer and wine at the Pick Kwik location. Two convenience stores located across the street from one another generally share the available business in the market area. The addition of a store across the street from an existing store would be expected to generate perhaps 12 percent more aggregate revenue. (This approximates the new store's capture of the "leakage" that resulted when potential customers driving on the opposite side of the street chose to bypass the preexisting store.) Beer and wine sales make up approximately 7 to 8 percent of a convenience store's gross revenue. Assuming that two stores across the street from each other also would generate 12 percent more aggregate revenue from the sale of beer and wine than a single store, and also assuming that the percentage of additional gross revenue represents additional trips to one of the two stores, the impact of allowing the sale of beer and wine at the Pick Kwik location would be 7 to 8 percent (representing the beer and wine percentage of gross revenue) of 12 percent (representing the aggregate increase in gross revenue from adding a convenience store across the street from another one), or between 0.84 and 0.96 percent, at most. The staff's recommendation to grant the April 16, 1991, application was subject to the addition of a fifth condition or restriction prohibiting sales of single containers of alcoholic beverages (other than bottles of beer and wine containing less than 750 ml). The evidence was clear that this condition would present enforcement problems. In addition, imposition of this condition or restriction at Pick Kwik without imposing the same condition or restriction at the 7 contrary, it might increase traffic problems as a result of customers wanting to buy single containers at the Pick Kwik subsequently crossing the street to make the purchase at the 7 On the other hand, tying the duration of the conditional use benefitting the Pick Kwik location to the duration of the conditional use benefitting the 7 proceeding that implementation of Section 137.011 of the Code will result inexorably in an increase in the number of establishments selling beer and wine, for off-premises consumption, in Clearwater Beach and, particularly in the north end of the Beach. This would result, at an appropriate future date, in the simultaneous consideration of the compatibility of the sale of beer and wine at both the Pick Kwik and the 7 condition or restriction.
Recommendation That the allegations against Respondent be dismissed. DONE and ENTERED this 13th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phillip Bennett, Esquire Department of Transportation Room 562, Haydon Burns Building Tallahassee, Florida 32304 Regis Reasbeck, Esquire 6011 Rodman Street Hollywood, Florida
The Issue The issue to be decided in this case is whether the City of Boca Raton (“City”) is entitled to the requested modification of its Joint Coastal Permit.
Findings Of Fact The Parties The Town of Hillsboro Beach is a municipality in Broward County. The Town’s eastern boundary includes shoreline along the Atlantic Ocean. The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapters 161 and 373, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code, which pertain to the permitting of construction activities in the coastal zone. The Department also acts as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”). The City of Boca Raton is a Florida municipality in Palm Beach County. The City has a shoreline along the Atlantic Ocean. The City is responsible for the management of the Boca Raton Inlet and the ebb shoal that is just east of the inlet. Background Natural sand drift along Florida’s Atlantic coastline can move both north and south, depending on winds, waves, tides, and storms. In this particular area, about 80 percent of the sand drift is to the south. Inlets interrupt or alter the natural drift of beach- quality sand, which causes beach erosion. See § 161.142, Fla. Stat. The Department developed a Strategic Beach Management Plan (“SBMP”), which provides an inventory of Florida’s critically eroded beaches and an inventory of Florida’s 66 coastal barrier tidal inlets. The SBMP incorporates by reference the individual inlet management plans (“IMPs”), which describe strategies for addressing beach erosion caused by the inlets. The SBMP was last updated in 2015. A Boca Raton IMP was approved in 1997 and portions of it have been incorporated into the SBMP. The Boca Raton IMP called for a minimum of 71,000 cubic yards of sand per year (“cy/y”), as an annual average, to be placed on beaches south of the inlet to account for the inlet’s interference with sand drift. The more recent SBMP revised the “bypass” objective to 83,000 cy/y. The beaches of Boca Raton, from Range Monument 204 to Range Monument 227.9 in Palm Beach County, are designated by the SBMP as critically eroded beaches. South of Boca Raton is the shoreline of the City of Deerfield Beach. In 1958, rock groins were constructed perpendicular to the shoreline of Deerfield Beach to capture sand and prevent further erosion. Sand has buried most of the northerly rock groins at Deerfield Beach, but about 15 of the most southern rock groins are exposed. The Deerfield Beach “groin field” is the single-most important cause of erosion to the Town’s beaches, which are immediately south of Deerfield Beach. About 3.2 miles of the Town’s beaches, from Range Monument 6 to Range Monument 23, are designated in the SBMP as critically eroded beaches. The Town has conducted several renourishment projects to address the erosion. The long-term beach nourishment projects within Boca Raton are managed through three permits. The permit for the North Boca Raton Beach Nourishment Project authorizes the City to periodically nourish 2.8 miles of beach north of the Boca Raton Inlet, using sand from three offshore borrow areas. There is a Boca Raton Inlet Sand Bypassing Permit, which authorizes the City to periodically dredge sand from the Boca Raton Inlet and place it on the City’s beaches south of the inlet. Another related permit is for the South Boca Raton Beach Nourishment Project, which authorizes the City to periodically dredge sand from the ebb shoal and place the sand on the City’s beaches south of the inlet. The Proposed Modification The proposed modification at issue in this case is related to Joint Coastal Permit No. 0261499-004-JM for the North Boca Raton Beach Nourishment Project. The modification would authorize a “one-time” use of the ebb shoal as a source of sand to be placed on the City’s beaches north of the Boca Raton Inlet. The proposed modification would allow the City to dredge 70,000 cubic yards of sand from the ebb shoal and place it into the template north of the inlet. A template is a three- dimensional target profile for the beach being renourished. The City’s purpose in seeking the modification is to alleviate a navigational hazard to vessels using the Boca Raton Inlet caused by the accretion of sand to the ebb shoal, which shallows the navigation channel. The ebb shoal is subject to continuous accretion and requires periodic dredging to maintain the depth and width of the navigation channel for safe navigation. The template for the South Boca Raton Beach Nourishment Project is now full and cannot receive more sand without risking damage to the nearshore hard bottom environment. Sand dredged from the ebb shoal to address navigation safety cannot be placed on the City’s beaches south of the inlet. For that reason, the City seeks to place the sand north of the inlet where the template is not full. To do that, the permit for the North Boca Raton Beach Nourishment Project must be modified because currently it only authorizes sand to be taken from offshore areas. The proposed modification allows the ebb shoal to be used as a “one-time” source of sand to be placed north of the inlet. When the Town challenged the proposed modification, the City was unable to use the dredge contractor that was scheduled to be on-site in conjunction with other dredging activity as the City had planned. Therefore, the proposed modification was revised to delete references to the “planned 2017 nourishment event” and to refer instead to a “one-time event during the life of the permit.” Minor Modification The Town contends the Department erroneously reviewed the proposed modification as a minor modification and, as a result, all applicable permitting criteria were not considered by the Department. The Department’s determination, whether a proposed change is a minor modification or a major modification, is based on its view of whether the proposed change has the potential to result in additional adverse impacts beyond the impacts previously addressed as part of the original permit. The Department determined that the City’s proposed modification was a minor one because the original permit authorizes periodic beach nourishment of the same area where the sand from the ebb shoal would be placed, and the ebb shoal is already an authorized source for sand. This minor/major modification question is of no consequence because both minor and major modifications require the Department to consider all of the criteria for issuance of a joint coastal permit. Consistency with the SBMP and Boca Raton IMP Much evidence and argument in this case was directed to the issue of whether the proposed modification is consistent with the SBMP and Boca Raton IMP. As discussed in the Conclusions of Law, this was an error because the plans have not been adopted as rules. Because the plans are not rules, a permit applicant does not have to demonstrate that a proposed activity is consistent with the plans as a condition for obtaining the permit. However, because the parties’ evidence on the consistency issue was admitted into the record, findings on that issue are made below. The Town contends the proposed modification is inconsistent with the SBMP and Boca Raton IMP because the plans refer to “nourishment of downdrift beaches using the inlet ebb shoal as a borrow source.” The Town interprets these provisions as prohibiting the removal of sand from the ebb shoal for placement on the City’s “updrift” beaches north of the inlet. The Department asserts that the Town is reading the plans too strictly because they do not expressly prohibit use of ebb shoal sand for nourishment of City beaches north of the inlet. The Department approved a 2006 City project that removed 340,000 cubic yards of sand from the ebb shoal and placed it north of the inlet. In reviewing and approving this project, the Department expressly considered the project’s consistency with the Boca Raton IMP. When the SBMP was updated after the 2006 project, it added a reference to the project. The Department contends that meeting the bypass volume of 83,000 cy/y is the overarching objective of the SBMP and the proposed modification is consistent with the SBMP and the Boca Raton IMP, because the removal of 70,000 cubic yards of sand from the ebb shoal would not interfere with achievement of this objective. The City has been exceeding the sand bypass objective, bypassing an average of 87,100 cy/y. The bypass volume of 83,000 cy/y was derived from a sediment budget which looked at all mechanisms, both natural and artificial, that move sand in the coastal system. Beach profile monitoring data shows the bypassing has resulted in net volume accumulations south of the inlet. The Town contends the Department has also ignored the Boca Raton IMP’s characterization of the bypass volume as “a minimum.” However, the proposed modification does not prevent the bypass objective from being exceeded. The SBMP includes the statement, “Nothing in the SBMP precludes the evaluation of other alternative strategies which are consistent with Chapter 161, Florida Statutes.” The Town’s argument that the plans prohibit the proposed modification is unpersuasive. The Department’s determination that the proposed modification is consistent with the SBMP and Boca Raton IMP is reasonable. Adverse Impacts Section 161.142 requires the Department to ensure that, “on an annual average basis, a quantity of beach-quality sand is placed on the adjacent eroding beaches which is equal to the natural net annual longshore sediment transport.” The preponderance of the evidence shows that 83,000 cy/y meets this statutory requirement. The Department determined that authorizing a one-time placement of sand from the ebb shoal onto the beaches north of the inlet would not cause an adverse impact on the inlet system or result in a deficit of sand bypassing to the beaches south of the inlet. Greater weight is given to the opinions of Respondents’ experts that the proposed modification will not interfere with meeting the annual longshore sediment transport objective or cause adverse impacts to the Town’s beaches. The opinions of the Town’s expert coastal engineer were based in large part on assumptions that were shown to be mistaken. For example, the Town’s expert believed that the 2006 dredging of 340,000 cubic yards of sand from the ebb shoal and its placement north of the Boca Raton Inlet led directly to the Town’s need to renourish its beaches in 2011. However, it was shown that the Town’s renourishment project was planned in 2005, which means the Town was addressing an erosion problem that existed before the 2006 dredging of the ebb shoal. The Town’s expert believed that the sediment budget was flawed because the beach profile data used for the analysis was from the period 2005 to 2015, but the wave data (“climate data”) was from the period 1997 to 2007. Because these data periods were not the same, he thought it made the conclusions of the sediment budget unreliable. However, the wave data that was used for the sediment budget was from the period 2005 to 2014, which is a good match with the beach profile data. The Town’s expert also expressed concern about the sensitivity of the sediment budget’s parameter for ebb shoal growth rate. However, the sensitivity for this parameter is not significant because, even at the highest potential deviation, it would only reduce the estimated total downdrift volume by about 10,000 cubic yards, which is a relatively small amount in the system as a whole. Furthermore, the sediment budget produced for the proposed modification is consistent with sediment budgets previously produced, including a sediment budget developed by the Town. Finally, the opinions of the Town’s expert are given less weight because he conducted no comparable studies of his own. The Town’s assertion that taking sand from the ebb shoal reduces the amount of sand available for natural bypassing may indicate its belief that the calculated bypass volume of 83,000 cy/y does not account for natural bypass. If so, that belief is contrary to the more persuasive evidence. The sediment budget shows that bypassing 83,000 cy/y fully mitigates the effects of the Boca Raton inlet on downdrift south of Boca Raton. The Town notes the estimate of natural sand bypass of 40,000 to 76,600 cy/y and leaps to the unproven allegation that removing 70,000 cubic yards of sand from the ebb shoal will “eliminate and deprive beaches to the south of such sand for an entire year.” The preponderance of the evidence shows this system does not work in such a simplistic manner, where each cubic yard of sand dredged from the ebb shoal will be a net loss of a cubic yard of sand that would have reached beaches to the south. In addition to the conclusions of the sediment budget, it is credited that: (a) sand travels in the beach system, not offshore; (b) sand placed on beaches north of the inlet is still in the system and contributes to downdrift; (c) the ebb shoal grows relatively rapidly; (d) the template for the City’s beaches south of the inlet is full, which means their contribution to downdrift is maximized; (e) the beaches of Deerfield Beach are stable or accreting; and (f) the historical beach profile data indicate that the downdrift influence of the Boca Raton Inlet does not extend to the Town’s beaches. The Town’s allegation that the proposed modification would be detrimental to nesting sea turtles is based on its claim that the proposed modification would cause erosion of the Town’s beaches. The Respondents’ rebuttal of the Town’s claim of erosion also rebuts the claim of adverse impacts to sea turtles. The Town’s concern about the erosion of its beaches and whether the proposed modification could exacerbate the erosion is reasonable, but the Town’s evidence was not sufficient to prove it would be injured. The preponderance of the evidence supports the Department’s determination that the proposed modification would not cause erosion of the Town’s beaches. Cumulative Impacts The Town argues that the Department’s characterization of the proposed modification as a “one-time” event is misleading because there is no prohibition against the City applying in the future to do the same thing. However, the term “one-time” merely means that the joint coastal permit for the North Boca Raton Beach Renourishment Project would only authorize the dredging of 70,000 cubic yards of sand from the ebb shoal one time during the life of the permit. In contrast, the joint coastal permits for this area allow other dredging and nourishment activities to be repeated during the life of the permits. The Department understands that the City is not prevented from applying again to dredge sand from the ebb shoal and place it north of the inlet. However, if the City were to make another such application, the Department would consider the best available data, including new data, and apply all applicable regulatory criteria to determine if the project would cause any adverse impacts. Because the preponderance of the evidence supports the Department’s determination that the proposed project would have no adverse impacts, and a future project of the same type would not be permitted if it causes adverse impacts, it follows that approving the proposed modification would cause no cumulative adverse impacts. Other Regulatory Criteria Florida Administrative Code Rule 62B-41.005 requires an applicant to demonstrate that proposed coastal construction will have a net positive benefit to the coastal system, based on adequate engineering data concerning the existing coastal system, design features of the proposed activities, and such other specific information or calculations as are necessary for the evaluation of the application. The City satisfied these criteria by providing the Department with sufficent data pertaining to the project to demonstrate a net postitive benefit to the coastal system by placing sand in an authorized beach nourishment template and aleviating a navigational hazard. Because sand from the ebb shoal has already been used several times for the South Boca Raton Beach Nourishment Project and has been previously used for the North Boca Raton Beach Nourishment Project, the Department already has data and reasonable assurance that sand from the ebb shoal is suitable for placement on the beaches north of the inlet, as required by rule 62B-41.007. The Town points out that the City’s Quality Assurance/Quality Control Plan provides for sampling and analysis of sand in the ebb shoal and does not allow the project to continue if the analysis shows the sand is not beach compatible. The Town argues that the Department cannot approve the proposed modification before it knows whether the sand is beach compatible. However, the Department’s reasonable assurance that the sand is compatible is based on previous analysis and uses of sand from the ebb shoal for renourishment north and south of the inlet. The Town’s allegation that the sand “may be vastly different” now is speculation because it is not supported by competent evidence. The permit condition to check the compatibility of the sand does not amount to approving the proposed modification without reasonable assurances. Rule 62B-41.008(1) sets forth application requirements for joint coastal permits, including topographic and bathymetric information. The City satisfied the application requirements for the proposed modification by submitting signed and sealed bathymetric and topographic plans for the ebb shoal borrow area and the 2016 Sediment Budget Report. The proposed modification must not be contrary to the public interest when considering the seven factors of the “public interest test” in section 373.414(1), Florida Statutes. The proposed modification would have a public benefit of nourishing an eroded beach, would alleviate a navigation hazard, and would have no adverse impacts to inlet management or the coastal system. Therefore, the proposed project is not contrary to the public interest. The Town contends the City’s demonstration of a navigation hazard was not shown. The Town did not refute the testimony that the ebb shoal is always growing, it has been periodically dredged in the past for navigation purposes, and that the dredged channel immediately begins to fill with sediment after it is dredged. Although the record evidence of the current navigation problem was limited to Respondents’ unspecific references to drawings, monitoring data, statements from boaters, and newspaper articles, the Town presented no evidence in rebuttal. The Town’s allegation that the City should have taken care of the navigation problem as part of an earlier dredging project is irrelevant. Respondents demonstrated that the proposed modification complies with all applicable regulatory criteria.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the City’s proposed modification to its Joint Coastal Permit. DONE AND ENTERED this 11th day of December, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2017. COPIES FURNISHED: Bradley Stephen Butler, Esquire Department of Environmental Protection Office of the General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Kenneth G. Oertel, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 (eServed) Richard Green, Esquire Lewis, Longman & Walker, P.A. Suite 620 101 Riverfront Boulevard Bradenton, Florida 34205 (eServed) Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. Suite 620 101 Riverfront Boulevard Bradenton, Florida 34205 (eServed) Timothy Joseph Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 (eServed) Marianna Sarkisyan, Esquire Department of Environmental Protection Office of the General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue Whether or not the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is entitled to relocate its employee, Perry Kirkland, from an assignment in Jacksonville, Florida, to an assignment in West Palm Beach, Florida.
Findings Of Fact Perry Kirkland, the Respondent, is employed as a beverage sergeant with the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. He has been employed with that division for sixteen years. Within that employment period, he has worked for one year in Orlando, two years in Miami, a period of time in Daytona Beach and then was assigned to Jacksonville, Florida, where he has remained as an employee with the exception of a period of time of 28 days beginning on September 19, 1977, when he was working for the same division in West Palm Beach, Florida. His service in the present type of classification began in 1968 when he was made an enforcement supervisor. His category was later changed to beverage sergeant in 1975. He is a permanent status employee. The underlying nature of the dispute between the Petitioner and Respondent concerns the Petitioner's effort to have the Respondent moved from Jacksonville, Florida, to West Palm Beach, Florida, on a permanent basis, as a condition of the Respondent's employment. The propriety or impropriety of such a requirement may be best understood by discussing the background facts which led to his proposed relocation. In the late fall or early winter of 1976, the Director of the Division of Alcoholic Beverages and Tobacco, Charles A. Nuzum, in conjunction with his subordinates, determined that it was necessary to transfer certain personnel from the Marianna office to the Panama City office. The purpose of such transfer was to promote more comprehensive enforcement in the Panama City area which was thought to be necessary, and had as its correlative purpose the removal of employees from the Marianna office, where the workload was not as substantial as that in Panama City. In essence, it has been decided that a full-fledged office would he opened in Panama City, in contrast to a sort of impromptu office that was in existence at the time. To make this change in personnel, it was necessary for the Director of the Division of Alcoholic Beverages and Tobacco to get the approval of the Department of Administration, Division of Budget. Mr. Nuzum and his chief of law enforcement met with representatives of the Department of Administration, Division of Budget, to include Elton Revell, a senior budget analyst. The purpose of this meeting was to present the request for changes in the Marianna and Panama City Offices. Revell advised the Division of Alcoholic Beverages and Tobacco that the Division of Budget could not go along with the "piecemeal" resolution of the problem of a disparity in the efforts of fulfilling the mission of the Division of Alcoholic Beverages and Tobacco. It was Revell's position that it would be necessary to consider the entire state in evaluating such realignment, before any approval could be granted. As an example of his position, Revell specifically mentioned that he thought that Live Oak and Jacksonville were offices that were overstaffed. At the insistence of the Division of Budget, and in keeping with his own analysis of the needs of the Division of Alcoholic Beverages and Tobacco, Mr. Nuzum undertook the task of analyzing the assignment status of the manpower of the division statewide, in an effort to achieve the mandate of his division's function more uniformly. The director had the benefit of certain weekly and monthly reports filed by the field agents in the categories of the division's overall mission. He also had the benefit of an overview of the conditions in the district offices, having made personal visits to the offices around the state. However, it was determined that a more specific study was necessary to get a true picture of the conditions in the district and sub-district offices for purposes of presenting the proposed realignment of personnel to the Department of Administration, Division of Budget. The principal task of doing the study was assigned to John Berry, an auditor with the Division of Alcoholic Beverages and Tobacco. Berry performed a workload study for a period in 1976, which was designed to determine the time that the agents within the district offices were spending in the primary agency functions, which are licensing and enforcement. The result of this study may he found in Petitioner's Exhibit No. 1, admitted into evidence. Berry in compiling his study, examined the various functions being performed in the Jacksonville District Office and the West Palm Peach District Office, which are Districts III and X respectively. It was determined, per his workload study, that although Jacksonville and West Palm Beach had a comparable number of licenses in their district, the number of manhours being spent in the performance of the licensing and enforcement functions of the division were significantly disproportionate. This is borne out by an examination of the Petitioner's Exhibit No. 1, which shows 2,067 licenses in Jacksonville and 2,015 licenses in West Palm Beach, for the various counties in the districts. Although this number is relatively close, manhours in the licensing function in Jacksonville was some 9,907 hours and the licensing manhours in West Palm Beach were 6,683. Likewise, the enforcement manhours in Jacksonville were 10,250, an even greater gap existed for enforcement in West Palm Beach in comparison to Jacksonville, in that the total manhours spent for that function in West Palm Beach was 3,355. These statistics were derived from an examination of the weekly and monthly reports from the personnel within the Jacksonville and Palm Beach offices. The statistics were also borne out by the testimony of the lieutenant in charge of the West Palm Beach office, who indicated that due to a shortage of manpower, the enforcement function in the West Palm Beach area was woefully inadequate. This discussion of the Jacksonville and West Palm Beach district offices leads to further consideration of the efforts made by the Division of Alcoholic Beverages and Tobacco to have their personnel realigned. After Director Nuzum had received the workload study, he had a further discussion of the authenticity of that study, with members of the staff, to include the district supervisors. His communication with the district supervisors had been by sending them a copy of the workload study to solicit their remarks. This study was forwarded to the district supervisors some time in March, 1977. After this discussion, the study was accepted. On June 7, 1977, the director forwarded the reorganization proposal to Mr. J. Jackson Walter, the Executive Director of the Department of Business Regulation, of which the Division of Alcoholic Beverages and Tobacco is a part. This reorganization proposal was forwarded in conjunction with a request made by Mr. Walter. Again, the contents of this proposal are found as Petitioner's Exhibit No. 1, which includes the workload study and a specific indication of how many persons would be reassigned to the various offices. It also includes a copy of the then present manning chart and a copy of the proposed manning chart after the changes. At that point in time, the exact persons who would be moved had not been determined. Moreover, the criteria for moving individuals from one location to another was still under discussion. Finally, it was determined that the basis for movement would be on the grounds of seniority, should there be two possible candidates for relocation and a decision become necessary for selecting one of those two persons. Sergeant Kirkland was in that category, because within the Jacksonville district there were two beverage sergeants and the other beverage sergeant was a more senior member of the division. Therefore, Kirkland was chosen to be relocated from Jacksonville to West Palm Beach. The purpose of this relocation was primarily to promote a more consistent enforcement pattern in terms of hours spent in that function statewide and between Jacksonville and West Palm Beach. A related reason was to allow some assistance to the lieutenant in charge of the West Palm Beach office, in terms of supervision of the field beverage officers of basic rank. A letter was forwarded to the district supervisors and district auditors from Mr. Nuzum, indicating that the realignment of personnel assignments would be on the basis of seniority. Petitioner's Exhibit No. 2 submitted into evidence is a copy of that notification. After determining that seniority would be the criterion for the relocation of personnel involved, the Division Director submitted his proposals through the Department of Business Regulation for transmittal to the Department of Administration for their approval. The Department of Administration approved the reorganization and J. Revell of the Department of Administration informed Floyd L. Dorn of the Department of Business Regulation's personnel office, that this approval had been granted. This approval came about in August, 1977. After receiving the notification of approval, Director Nuzum then began to advise the personnel who were affected by the reorganization in terms of any relocation. As stated before, Sergeant Kirkland was a person involved in the relocation question. Assistant Chief of Enforcement, Ken Ball, on the basis of the seniority standard, determined that Sergeant Kirkland should be transferred from Jacksonville to West Palm Beach. This was approved by Director Nuzum and this particular change was indicated on the reorganization position chart, which was Petitioner's Exhibit No. 3 submitted into evidence. His position number is 00092. The Respondent had filled the 00092 position while working in Jacksonville. His primary function was as supervisor of the enforcement section of the district, with the exception of the period of time in which he was acting in the dual capacity of enforcement supervisor and acting district supervisor. His duties during that latter period are described in Petitioner's Exhibit No. 4 admitted into evidence. This duty description was made by Sergeant Kirkland. When the present district supervisor, Captain Oganowski, took over the permanent job of district supervisor in Jacksonville, Sergeant Kirkland went back to filling the duties of enforcement supervisor. This function entailed the supervision of the enforcement division, as opposed to enforcement and licensing or licensing. Sergeant Kirkland continued to hold this position except for a short period of time in 1975 when he changed positions with the licensing supervisor. This is reflected in Respondent's Exhibit No. 5 admitted into evidence. Respondent's Exhibit No. 6 shows the reassignment of Kirkland back to the job 00092, (enforcement supervisor) in Jacksonville. During his tenure with the division, Sergeant Kirkland has maintained a high standard of performance in his various assignments. The current description of duties and responsibilities which the Respondent is expected to assume in the West Palm Beach office may be found as a part of Petitioner's Exhibit No. 4 admitted into evidence. This function includes the supervision of both enforcement and licensing personnel. When it was determined that Sergeant Kirkland would be sent to West Palm Beach, the Director of the Division of Alcoholic Beverages and Tobacco telephonically communicated the notice of this transfer. It was followed by a letter indicating the transfer, a copy of which is Respondent's Exhibit No. 1 admitted into evidence. The date of the written notification is August 25, 1977. The official report of personnel action setting the effective date of the relocation was dated September 15, 1977, and made the effective date September 19, 1977. A copy of this report of personnel action is Respondent's Exhibit No. 3 admitted into evidence. The type of action indicated on this form is original appointment, with the additional statement entered as "Continued." In fact, the relocation of Sergeant Kirkland is a reassignment within the meaning of Rule 22A-7.08, F.A.C. It is a reassignment because the appointment involved a move from one position in one class to a different position in the same class. The position move, is a move from the 00092 position in Jacksonville, which involves the supervision of enforcement personnel in Jacksonville, to the 00092 position in West Palm Beach, which involves the supervision of both enforcement and licensing personnel. Under the terms of Rule 22A-7.08, F.A.C., Kirkland may not appeal that reassignment. However, since it involves a geographic transfer of more than fifty miles the Respondent is entitled to appeal this decision to the Career Service Commission, in keeping with the authority of Rule 22A-7.09, F.A.C. The Respondent has challenged this relocation by his Career Service Appeal. That appeal has two principal contentions. The first contention concerns the assertion that the transfer does not fall within any of the types of enumerated appointments found in Rule 22A-7, F.A.C. As already shown, this position has been rejected, because the appointment has been determined to be a reassignment appointment. The second contention of the appeal is that any transfer from Jacksonville to West Palm Beach would cause irreparable financial harm and hardship on the Respondent and his wife. In connection with this assertion, Sergeant Kirkland produced evidence that the housing in the West Palm Beach area is more expensive than that in Jacksonville, and that, not withstanding the amount of equity which he might realize from the sale of his Jacksonville property, he still would incur approximately $15,000 additional cost for housing. This housing would not be comparable to his Jacksonville housing, due to the difference in the available amount of property and size of the home itself being smaller in West Palm Beach. The house that he is purchasing in Jacksonville is a four-bedroom, two-bath, two-carport home. The house being contemplated for purchase in West Palm Beach is a three-bedroom, two-bath home. Furthermore, the cost of the mortgage in Jacksonville is $165 and this cost would be exceeded in West Palm Beach even if the equity realized in the sale of Jacksonville home were put toward the down payment. It was also established that the restaurant cost in the West Palm Beach area is greater than that cost in Jacksonville. Sergeant Kirkland's wife testified that she is a hospital operating room nurse who has established a certain amount of seniority in her present employment. She is also only one year away from being able to retire with retirement benefits. If she is required to move, she would lose those benefits and also have to start at the bottom of the seniority list in any new employment in a hospital operating room in West Palm Beach. Finally, the Respondent demonstrated that to move from the Jacksonville community to West Palm Beach would cause him to lose church membership and other community activities in which he is involved. In spite of the degree of hardship which has been demonstrated by the Respondent in his presentation, a review of all the facts and circumstances would justify the Petitioner's action in its reassignment transfer of the Respondent. The action was not a punishment, it was a circumstance where the needs of the Petitioner in this instance, are more compelling than the hardship which will be caused Sergeant Kirkland and his family.
Recommendation It is recommended that the proposed reassignment appointment transfer of the Respondent from Jacksonville to West Palm Beach in the position 00092 he approved and that the appeal by the Respondent challenging this action by the Petitioner be denied. DONE and ENTERED this 30 day of December, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph M. Glickstein, Jr., Esquire 1205 Universal Marion Building Post Office Box 1086 Jacksonville, Florida 32201 Francis Bailey, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32201 Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact The Petitioner is the owner and operator of several businesses on Clearwater Beach, including two "fast-food" facilities which serve primarily recreational beach visitors. Petitioner owns property on the northeast corner of Marian and Mandalay Streets on the beach. Marian Street is a one-way highway which terminates at Mandalay Street. It is the eastern terminus of State Road 60 and provides the main access to Clearwater Beach from mainland locations. Mandalay Street is a four-lane street which serves as the primary north-south artery on Clearwater Beach. The intersection of Marian and Mandalay Streets is the busiest intersection on Clearwater Beach. There are a traffic light and a pedestrian light at the intersection. Petitioner purchased the property at the northeast corner of the intersection in 1974. A two-story building occupies the property and covers over half of it. The building fronts on Mandalay Street. There are two commercial facilities on the first floor, one of which is presently not occupied. There are five apartments on the second floor, all of which are occupied. There are numerous commercial facilities to the north of Petitioner's property along the same side of Mandalay Street. These are primarily shops which cater to the beach-going public, and small restaurants. To the east of Petitioner's property, there is a mixture of commercial uses, primarily motels. There is a Holiday Inn motel across Mandalay Street. Petitioner's property lies within a zoning district which is classified "GB" or "General Business." The property is classified in the City's plan as commercial/tourist. Retail business uses, restaurants, motels, or high-density residential uses would all be appropriate under the "GB" zoning classification and under the City's plan. Petitioner proposes to remodel the building on his property and to operate a "fast-food" restaurant facility in it. The Petitioner proposes to place food preparation and service areas on the ground floor with some stand-up eating locations, and to place most of the seating on the second floor. The second floor would serve as a dining porch with good views of the beach area. The Petitioner has not decided whether he would seek to serve as a franchisee of some national food service organization. The Petitioner would not have any "drive-in" facility connected with the restaurant. Petitioner's property is a good location for a fast-food restaurant because it is at a highly visible location, the busiest intersection on the beach; and because it is readily accessible to the beach-going public, being located across the street from the beach. There is a very favorable prospect that a fast-food operation on the property would provide the Petitioner with a favorable return on his investment. There are five parking spaces located on the Petitioner's property adjacent to the building. Petitioner proposes to utilize the same five parking spaces to serve his proposed restaurant. Under the City of Clearwater's building and zoning regulations, persons who operate restaurants are required to provide suitable parking areas to accommodate employees and customers. The regulations require that parking spaces be provided based upon the number of employees and based upon the number of fixed seats or the square footage of the restaurant. In order to operate the restaurant that he proposes, the Petitioner would be required to provide 68 spaces under the City's building and zoning regulations. Petitioner is seeking a variance from these requirements which would allow him to provide only five parking spaces. There is considerable public parking located within close proximity to the Petitioner's property. There are approximately 1,500 metered parking spaces maintained by the City within four blocks of the property. The purpose of these spaces is not, however, to serve commercial enterprises, but rather to serve the beach-going public. While there are many such spaces, they are frequently filled during peak beach-going periods. To use the public parking facilities as parking for the Petitioner's proposed restaurant, customers would need to cross one or more streets. Petitioner contends that his proposed restaurant would not itself serve as a draw to the beach, but rather that his customers would be people who have already come to the beach. Petitioner contends therefore that there will be no additional demand for parking caused by his facility, and that he should not be required to provide any. While it is true that a "fast-food" sort of facility is not likely to serve as a substantial draw to the beach, it is also true that the Petitioner is predicting success for his facility based upon its highly visible location. It is likely that persons going to the beach would notice the restaurant and seek nearby parking locations. This would increase the demand for parking facilities in the area and would increase both vehicular and pedestrian traffic at what is already the busiest intersection on the beach. The parking problem on Clearwater Beach is not new. During peak demand times, there has been a shortage of parking for many years. The parking shortage is not one that affects only the Petitioner's property. Any business located on Clearwater Beach would have the same difficulties that Petitioner has. The difficulties are caused by lack of available land for providing parking spaces, and by the high demand for the land that is available. For the Petitioner to provide parking that would comply with the City's zoning regulations, he would need to acquire approximately four-tenths of an acre of property. The cost of such an acquisition would be prohibitive. The same problem would exist for any business person in Clearwater who proposes to operate a restaurant. It is not a problem that is unique to the Petitioner's property. There are a number of restaurants located on Clearwater Beach which do not provide parking facilities that would comply with the City's zoning regulations. There are at least two such restaurants in close proximity to the Petitioner's property. It appears that all of these restaurants were in operation prior to the adoption of the City's zoning regulations. While there was testimony that variances of the sort being sought by the Petitioner were once commonly granted, there was no competent evidence to support the contention. It does not appear that the City has enforced its zoning regulations in other than a uniform manner.
The Issue Whether the Buntins and the Stovalls should receive an after-the-fact coastal construction control line (CCCL) permit to allow a sand-filled HESCO Basket System constructed in the aftermath of Hurricane Dennis in 2005 and that is now primarily a vegetated dune to remain as a permanent structure in Walton County?
Findings Of Fact Sea Turtle Nesting Habitat on a Hurricane-battered Coast Along the northernmost reaches of the Gulf of Mexico, roughly in the center of the Florida Panhandle coast, the beaches and shores of Walton County have been subject to the many vicissitudes of coastal climate over the years. So have marine turtles, several species of which have relied through the ages on Florida beaches and shores, including those in Walton County for nesting habitat. Survivors of shifting circumstances brought by weather, sea turtles are now imperiled by exposure to man-made dangers. Anthropogenic turtle hazards on populated beaches are numerous and, without educational efforts of the Department and the Commission, not likely to be recognized by beach-goers interested in the enjoyment of surf and sun. Folding beach chairs and canopies, board walks designed to protect the dune system, and other seemingly-harmless by- products of human beach activity, even holes dug by children building sand castles, can contribute to sea turtle injury and cause sea turtle fatality. While sea turtles in recent times have made their way across the Walton County beach toward their nests through obstacles set up by human beings and hatchlings have scurried toward the sea through these same impediments, owners of beachfront property have had to contend with powerful tropical storms, particularly in the relatively recent past. Especially damaging to property along the Walton County Coastline have been three hurricanes that hit in the span of a decade: Opal in 1995, Ivan in 2004 and Dennis in 2005. The intense storm surge of Hurricane Opal destroyed much of the dune system along the stretch of Seagrove Beach in Walton County that is the subject of the aerial photography introduced into evidence in this case. Ivan, which made landfall just west of Gulf Shores, Alabama, as a Category 3 Hurricane on September 16, 2004, caused heavy damage to the Walton County coastline and areas west. Of the three, though, the damage done by Dennis is the sine qua non of this proceeding brought by Petitioners to preserve and protect their property. The Stovall and Buntin Property When Hurricane Dennis hit, the Stovalls had owned the property located at 711 Eastern Lake Road, Santa Rosa Beach, Walton County, for some time. Purchased by both Mr. and Mrs. Stovall and in both their names at the time the petition was filed, by the time of hearing, the property had been transferred into Mrs. Stovall's name only. The Stovalls bought the lot around 1997 give or take a year. "[T]he house itself is about 11 years old," tr. 17, built in 1998 or thereabouts. Seaward of the CCCL established on December 29, 1982, construction of the house required a CCCL permit from the Department. In the words of Mr. Stovall, the permitting process required "hundreds of hoops to jump through." Tr. 18. The lot had been in foreclosure and the permit was obtained through the services of a reputable architectural firm. The house, therefore, was designed and constructed to survive a major hurricane, a requirement of the permit. The house was built on pilings sturdy enough to support the house in the event of a major hurricane. High enough to allow the bottom floor of the house to be above storm surge, the pilings' height and house elevation also allowed ample parking for vehicles beneath the house. At the time the Stovall house was built, despite the damage done by Opal, there remained a good natural dune system seaward of the house, one that was "beautiful . . . wonderful," tr. 19, in the words of Mr. Stovall. After the house was constructed, Mrs. Stovall took particular pleasure in the dune system and worked to preserve and cultivate sea oats in its support. She also was thrilled by the presence of two turtle nests not long after the purchase of the lot, one nest found in 1998 and the other discovered on July 22, 1999. After the discoveries, Sharon Maxwell, the County- authorized "local turtle coordinator," tr. 295, and "the only person in the County permitted to touch . . . turtles," tr. 296 was contacted. Ms. Maxwell measured the nests from points related to the Stovall house. They were at least 20 feet seaward of the toe of the most seaward dune. Because the nests were on a busy stretch of the beach, protective measures were implemented. Among the protective measures were actions by Mrs. Stovall. In addition to working with the local turtle coordinator, Mrs. Stovall became involved in circulation of information to neighbors about sea turtle conservation. She was part of an effort to encourage the information to be placed in rental units in the neighborhood. The information recommended turning out lights on the beach that interfered with turtle nesting, "brought out the importance of a single . . . beach chair [that] can misdirect and kill over hundreds of endangered hatchlings . . . [and] umbrellas . . . left overnight [that] can interfere with nesting." Tr. 293. She called local government commissioners and attended commission meetings where she advocated beach removal of items hazardous to sea turtles, their nests and their offspring. Her efforts have extended off-shore as well. As a scuba diver, she learned how to respect sea turtles and their marine habitat and "encouraged others to stay away and not harass the turtles, which many divers do." Tr. 195. The Buntin property, located at 701 Eastern Lake Drive, is adjacent to the Stovall property on the east side. Owned by the Buntins since 1990, the house on the lot was built in 1991 or early 1992. Like the Stovall house, the Buntin house is seaward of the CCCL and built to withstand the forces of major tropical storms. The Buntins, similar to the Stovalls, care about the beaches and shores of Walton County and particularly the beach adjacent to their property. Their intent with regard to the coastal environment is to protect it. There have been times over the past two decades when the Buntins greatly enjoyed their property. Their relationship to it, however, has changed. As Mr. Buntin put it at hearing, "[I]t's a situation we put ourselves in [but] I wish we didn't have any beach property. And I imagine there's a lot of other folks that wish that, too,. . ." Tr. 54. A major factor in Mr. Buntin's change-of-attitude is damage done by Hurricane Dennis. Hurricane Dennis Hurricane Dennis made landfall near Navarre Beach not far west of the Stovall and Buntin Properties on July 10, 2005, having struck the tip of peninsular Florida the day before. Classified according to the Saffir-Simpson Scale as a Category 4 Hurricane at moments in its journey through the Caribbean and the Gulf of Mexico, it came ashore in the northern Gulf as a Category 3 hurricane. Some of the worst damage it caused was along the panhandle coast. One of its damaging effects was enormous erosion of the beaches and shores along the coastline where the Stovall and Buntin property is located. That stretch of beach remains classified as a "critically eroding beach." After the storm, there was nothing left of the dunes seaward of the Stovall and Buntin houses. The Stovall house, itself, was not structurally damaged; there was not "a crack in the Sheetrock. The house stood solid." Tr. 30. It had lost its bottom deck and the deck on its western side but true to the CCCL permitting criteria, the house, perched on pilings about the storm surge, had also withstood the Category 3 force winds of the hurricane. Dennis had caused more damage to the property, however, than just the loss of a few decks. It had eroded the beach as far up as landward of the Stovall's house. At hearing, Mr. Stovall described his first view of the property post-Dennis: [T]he water was lapping back . . . behind the house. And if anybody walked up to where it was, it would just cave in. I fully believed that if that storm would've gone on another two hours, it would have been in the man's house behind me[.] . . . [W]e had no access to the front door and one of the neighbors down the street brought in a ladder . . . It would have taken a 20 or 21-foot ladder to have gotten up to [the] first deck level . . . . Tr. 25. Without a ladder, the house was not accessible. Most pertinent to the Stovall's persistence in bringing this proceeding, there was nowhere to park their vehicles. The parking area under the house had been scoured out. The Buntin property likewise suffered the impact of the hurricane's scour. Mr. Buntin was contacted by a neighbor and told that the scouring under his house was so bad that the air-conditioners midway between the seaward and landward sides of the house were "hanging over a 20-foot drop-off." Tr. 45. Mr. Buntin did not give the report much credibility at first but, to his dismay, found it true when he visited the property shortly after the storm. Just as in the case of the Stovall property, a car could not be parked under the house in the space that had served as the parking area prior to Dennis. Half of a car could be parked under the house but the rest of the sand- based parking area was gone. In its place was a steep embankment that "dropped off 20 feet." Tr. 46. A Serious Parking Problem Eastern Lake Road runs roughly east-west just north of the Stovall and Buntin properties. The roadbed lies in a roadway and utility easement. Because of the easement, property owners along the roadway are not allowed to use it for permanent parking. The restriction includes the entire right-of-way that extends beyond the roadbed. As a combination of the easement and the parking restriction, under-story parking is the only permanent parking place that can serve the properties. Aware that their properties were seaward of the CCCL, the Stovalls and Buntins sought guidance as to how to re- establish parking for their beach front property. They turned both to local government and to DEP. DEP's Emergency Order On the same day that Hurricane Dennis hit South Florida (the day before it made landfall on the panhandle coast), the Department issued an Emergency Final Order (the "Emergency Final Order." Styled, In re: EMERGENCY AUTHORIZATION FOR REPAIRS, REPLACEMENT, RESTORATION AND CERTAIN OTHER MEASURES MADE NECESSARY BY HURRICANE DENNIS and dated July 9, 2005, the Emergency Final Order followed a declaration by Governor Jeb Bush of a state-wide emergency. By State of Florida Executive Order No. 05- 139, the Governor declared that a state of emergency exists throughout the State of Florida, based upon the serious threat to the public health, safety and welfare posed by the Hurricane. Department Exhibit 9, paragraph 2., at 1. The Department's Emergency Order, therefore, had state-wide application and applied to Walton County even though Dennis had not yet come ashore onto the panhandle coast. The Final Emergency Order made the following findings: The Department finds that the Hurricane has created a state of emergency threatening the public health, safety, welfare and property throughout the Emergency Area. As a result of the emergency, immediate action by Florida's citizens and government is necessary to repair, replace, and restore structures, equipment, surface water management systems, works, and operations damaged by the Hurricane. The Department finds that an emergency authorization is required to address the need for immediate action because the normal procedures for obtaining the necessary authorizations would not result in sufficiently timely action to address the emergency. The Department finds that immediate, strict compliance with the provisions of the statutes, rules, or orders noted within this Order would prevent, hinder, or delay necessary action in coping with the emergency, and that the actions authorized under this order are narrowly tailored to address the immediate need for action and are procedurally fair under the circumstances. Department Exhibit 9, at 2. With regard to "Coastal Construction Control Line Activities," Section 3., of the order was clear. It did not "authorize the construction of structures that did not exist prior to the emergency . . . ." Id. at 17. The Final Emergency Order contained a provision, however, that may have related directly to the predicament of the Stovalls and the Buntins. Paragraph 3.b., entitled "Activities Requiring Local Authorization," opens with an introductory statement with regard to certain activities and then lists those activities as follows: Local governments are authorized to issue permits in lieu of Department permits to private and public property owners for the activities listed below. * * * (4) Return of sand to the beach dune system which has been deposited upland by the Hurricanes. Id. (emphasis added). The activity of returning sand to the beach dune system is subject to a section of the Final Emergency Order dedicated to "General Conditions." Id. at paragraph 4., pp. 20- In addition to the requirement that the activities "be performed using appropriate best management practices" id. at 20, in accord with the Florida Land Development Manual, the General Conditions section contained explicit provisions with regard to sea turtles: The nature, timing, and sequence of construction activities authorized under this Order shall be conducted in such a manner as to provide protection to, and so as to not disturb . . . listed species and their habitat, including threatened or endangered sea turtles If activities under C.3 of this Order occur during the marine turtle nesting season (March 1 through October 31 in Brevard and Broward County, May 1 in all other coastal counties), such activities must be coordinated with the Florida Fish and Wildlife Conservation Commission's Imperiled Species Management Section to ensure that all activities comply with state and federal requirements for the protection of seat turtles, their nests, hatchlings, and nesting habitat. Nothing in this order authorizes the taking, attempted taking, pursuing, harassing, capturing or killing of any species (or the nests or eggs of any species) listed under Rule 68A-27 of the Florida Administrative Code or under the Federal Endangered Species Act. Id. at 21-22. Under Section D., "GENERAL PROVISIONS," of the Emergency Final Order, the order cautioned, "[u]nder no circumstances shall anything contained in this Order be construed to authorize the repair, replacement, or reconstruction of any type of unauthorized or illegal structure, habitable or otherwise." Id. at 27, 28. The Emergency Final Order declared its effectiveness for 60 days following its execution on July 9, 2005, by the Secretary of the Department. Expressly set to expire on September 7, 2005, therefore, it promised in the meantime, "to act on requests for field authorizations in a timely and expeditious manner." Id. at 28. The Field Permit True to its word, the Department issued a field permit to Mr. Stovall on August 16, 2005. See Department Exhibit 10. The project is described in the field permit as repair and replacement of wooden decks and "repair/replace understructure concrete/brick paver parking area to original condition." Id. The repairs included electrical, plumbing and HVAC work and replenishment of approximately 1800 yards of sand for foundation pilings. The permit stressed, "[n]o other activity is authorized." Id. And, as part of its special conditions, the permit listed, "all construction shall comply with attached marine turtle conditions." Id. In the attempt to return the understory parking to its original condition, simply replacing sand did not work. "[I]t became pretty obvious to us as we put the sand in there," Mr. Stovall testified at hearing, "the sand was running out." Tr. 31. The Buntins were experiencing much of the same difficulties. Mr. Buntin compared the situation right after the hurricane to four years later at the hearing: There was so much confusion going on . . . we are so far after the fact now [August of 2009]. It's kind of hard to put yourself back in the position we were in at the time [summer of 2005] because there were an awful lot of questions and very few answers. You would get referred . . . this is what the regulations say. Well, you read the regulation and it is left to interpretation . . . the written word is . . . wonderful, but if you've got three people reading it, it's kind of hard to figure out exactly what it means. Now [August of 2009], after the fact . . ., we [have] answers . . . we didn't have at the time. Tr. 51 (emphasis added). Mr. Buntin knew one thing for sure: placing sand under the house would not be enough, "you've got to have some way to keep it underneath . . . because you're going to have to build a parking pad on top of it." Tr. 47. Neither an expert in CCCL regulations nor a coastal engineer, Mr. Buntin had no doubt "[y]ou can't just pile up sand and park the car on sand." Tr. 48. Mr. Buntin knew that in a coastal environment the understory parking would require a base of sand and a means of retaining the sand base under the house. The answer to the quandary was presented by Mike Jones, a contractor hired initially by the Stovalls and eventually by the Buntins, too. Mr. Jones suggested a HESCO Basket System. The HESCO Basket System In the aftermath of the storm, it was difficult to get assistance from repair companies. Mr. Stovall described the difficulty at hearing: "That was a tough job because everybody along the beach had damage, too, and getting someone to even come out there and give you a bid on it was like pulling eye teeth." Tr. 30. Eventually, through his brother, Mr. Stovall learned about Michael Alan Jones ("Mike Jones"), a general contractor licensed in Georgia. Mr. Jones agreed to look at the property. At hearing, he recalled his initial assessment of the Stovall and Buntin repair jobs: [T]here was a crater below the residences. We had to use an extension ladder to gain access to the Stovall property and we had to use some unique engineering to be able to access Mr. Buntin's property. There was no place to park. I noted on the Stovall property that . . . a paver system . . . was used for his parking area and the end of Eastern Lake Road as well, and the majority of that system was either currently . . . in the ocean or was in various stages of disrepair. It was falling apart. It was sagging one foot, 18 inches in many areas. It appeared . . . unsafe. * * * Some of . . . the pressurized [water] lines had been broken. The drain lines that lead into the septic or the county sewer were broken . . . the same on both properties. The air conditioning units were hanging by the power cables [I'd guess] 15 to 20 feet in the air, which, of course, poses a serious threat to anybody that walks . . . underneath them when the cable . . . unhook[s] itself from whatever connector or breaks. I noted at Mr. Stovall's, the whole bottom level of his deck was missing. * * * Mr. Buntin's dune walkover and much of his deck were sagging and unsafe [with] pieces missing. There was no . . . foundation on which to place a vehicle or anything for that matter underneath . . . the houses. I also noted . . . several onlookers . . . were using the area underneath the Stovalls' and Buntins' houses to access the beach, which was, in my opinion, extremely unsafe . . . [because of] falling five pound bricks and air conditioners hanging and wood falling off the side of the house. Tr. 82-83. The "crater" under the houses was not just a parking problem. Before the necessary repairs could be started, the understory had to be shored up. In the meantime, efforts were made to keep "onlookers" from using the area under the houses but they were not completely successful. Every morning that Mr. Jones visited the site at the beginning of his efforts, there was evidence left behind by people under the house the night before. Mr. Jones was of the same opinion as the Stovalls and the Buntins. For replacement of sand to work, there had to be a system for retaining the sand under the house. For several weeks, he conducted research by traveling up and down the beach discussing the issue with other contractors. Ultimately, Mr. Jones reached the conclusion that "the least invasive, most efficient . . . , environmentally friendly" system was a HESCO Basket System. HESCO Baskets HESCO Baskets are wire-framed open cell structures. One cell consists of four flat panels of wires of the same gauge. The "top" of the cell or basket is completely open as is the "bottom." Each of the four sides consist of horizontal wire rods spaced equally apart and welded to four similar-sized rods in a vertical position to form a panel of squares framed by the rods but which are mostly open space. The fours sides are bound together by a coil of wire of a gauge identical to the wire used in the rest of the structure. Attached to the sides on the inside of the cells is felt-like material that is water- permeable. Two baskets are created by joining three wire panels to an existing basket. Only seven panels, therefore, are needed to create two baskets since one of the panels is shared. Used in military applications to create revetment structures to protect aircraft and personnel and in river settings for flood control in places as diverse as Alaska and the Middle East, HESCO baskets also have commercial applications. These were investigated by Mr. Jones as he talked to other contractors in the area. Ultimately, he viewed the process of installation of HESCO baskets locally, obtained a list of installers from a HESCO basket distributor and picked Robert Klemen, an installer who worked in the area of the Stovall and Buntin properties to hire as a subcontractor under his supervision. Before installation, however, a permit was required. Under the DEP Final Emergency Order authorizing local governments to issue permits for temporary emergency protection seaward of the CCCL, separate permits for the Stovall and Buntin properties were issued by Walton County. The Walton County Permits On October 28, 2005, Billy Bearden, Building Official for Walton County, issued two building permits to Robert Klemen. The first, Permit No. SW398Dennis, (the "County Stovall Permit") was for 711 Eastern Lake Dr., the Stovall Property. The second, SW400Dennis, (the "County Buntin Permit") was for 701 Eastern Lake Dr., the Buntin Property. The County Stovall Permit gives Mr. Kleman permission for "TEMP SEAWALL STABLILIZING BASKETS." Department Exhibit 8. Similarly, the County Buntin Permit gives Mr. Kleman permission for "TEMP Stabilizing BASKETS." Each permit recited that "[t]he Florida Department of Environmental Protection in Hurricane Dennis Emergency Final Order 05-1700 is attached," and warned that "[p]ursuant to the FDEP emergency order, care must be taken for the protection of sea turtles, their nests, hatchlings and nesting habitat." Department Exhibit 8, the 7th and 15th pages of fifteen un- numbered pages. The two permits also recited the following: All temporary retaining walls (or other types of beach armoring), permitted as an emergency measure as a result of Hurricane Dennis and Katrina, must be removed within 60 days of completion or applied to be permitted through DEP as a permanent structure. * * * For ease in monitoring and control, Walton County will consider all temporary restraining walls complete no later than October 28, 2005 and therefore must be removed within (sic) 60 days of completion or by December 27, 2005, whichever is sooner (unless complete application made to DEP). Department Exhibit 8 (emphasis added.) Each permit contained a drawing of the permitted activity. The County Stovall Permit drawing depicts a system consisting of three rows of baskets, two on bottom and one on top, that runs for 70 feet seaward of the Stovall House and then in an "L-fashion" 30 feet to the west of the house. The baskets are shown to be 3 feet wide each so that the bottom row is 6 feet wide. The height of each basket is depicted as 4 feet so that the height of the structure would be 8 feet. The drawing is consistent with the representation at hearing that each basket within the vegetated dune the structure now supports is 3 feet by 3 feet by 4 feet. The drawing also shows a connection to the Buntin system to be installed to the east. The County Buntin Permit shows the same type of structure with three rows of baskets, two on bottom and one on top. The structure extends 60 feet to the east of the Stovall structure seaward of the Buntin house. Prior to construction, it was made clear to Mr. Jones that the "system needed to be as much within the footprint of the house," tr. 93, as possible. The information was communicated from both county representative who conducted inspections and DEP representatives who "were around the property during the process of doing the beach walkovers, as well as the HESCO systems . . .". Id. The HESCO Basket System was not designed to meet coastal armoring standards. Nor was it designed to minimize impacts to sea turtles. Installation Pursuant to the County permits, the Hesco Basket Container Systems were installed on the Stovall and Buntin properties over the course of several weeks. The official CCCL location of the installation is approximately 285 to 399 feet east of DEP's reference monument R-93 in Walton County with a project address of 701 and 711 Eastern Lake Road, Santa Rosa Beach. The purpose of the installation of the man-made structures, consistent with their design, is to assist the retention of sand beneath the understory parking area of the two houses. As depicted on the permit drawings, the Stovall and Buntin systems were unified into one structure, that is, connected so that the structure ran without a break seaward of the Stovall and Buntin houses. During the construction process, Mr. Jones saw and conversed with several DEP representatives who were taking pictures along the beach. Although Mr. Jones "acted firmly in the belief that there would be no problem getting a permanent permit for [the HESCO] structure," tr. 96, he was never told by any DEP representatives, either on site or in phone conversations with Department employees in Tallahassee, that the structure would be permitted permanently by the Department. He was not told that such a permit application would be denied, either, he simply "was never able to get an actual answer . . .". Id. The structure on the Buntin property was constructed as depicted on the permit drawing. There were two rows installed on the bottom and one row on top for a total height of 8 feet. The structure installed on the Stovall property, however, was more elaborate than what was shown on the permit drawing. "[T]he Stovall property has three on the bottom, then two in the middle and then one on the top stacked pyramid style." Tr. 97. Twelve feet tall, the HESCO structure installed on the Stovall property was four feet higher than specified by the County permit. The structures were covered with sand in order to "rebuild the dune," tr. 109, in other words, the HESCO Baskets were installed in such a way as to serve as the core of a restored dune feature. The purpose of the installation was to provide a means of stabilizing the sand under the houses to restore the under-story parking. The installation was complete on November 4, 2005. The sand wall installed by Mr. Jones and his crew was then plugged with sea oats that were watered in the hope that their establishment would encourage the creation of a dune. A Vegetated Dune Pictures introduced into evidence reveal that the HESCO structure installed by the Stovalls and the Buntins, the sand installed on top and around it and the planting of the sea oats has resulted in a well-vegetated dune. As Mrs. Stovall put it at hearing, "y'all have got to admits that's the prettiest set of sea oats y'all [have] ever seen in your lives." Tr. 296. By the time of hearing, the dune had been maintained for nearly four years without any more sand imported by human hands. There has occurred, however, some exposure of wires of the HESCO system. A corner of one of the baskets in front of the Stovall house was exposed at the time of hearing and a picture introduced into evidence showed exposure of the top of several baskets in 2007. Mrs. Stovall expressed a desire to add more sand and ultimately to restore the dune to its pre-Opal status which "would add five-and-a half feet and make [the dune] level with the deck." Tr. 298. No sand has been added since the installation in November of 2005, however, because of the uncertain outcome of this proceeding. The exposure to date of the HESCO Baskets is in all likelihood the result of wind. Wave action, should it reach the system and be strong enough, will cause even more exposure. In fact, the HESCO Basket dune is not likely to be able to withstand wave action from 15 and 25-year return storms and a storms of such strength could expose the entire HESCO Basket structure leaving a jumble and tangle of wires on the beach. A recent series of aerial photographs from 2004 to 2007 show that the dune position to the west of the Buntin/Stovall property is approximately 30-to-50 feet further landward. The dune created by the HESCO baskets, therefore, is more seaward and more interactive with coastal processes than the dune to the west making the HESCO basket dune less likely to survive wave action than the dunes to its west. Nonetheless, as of the time of hearing, the system has maintained its integrity since installation. After the installation, the Stovalls and the Buntins were under no illusion that they had done all that was required in the way of governmental permitting. They knew that the County permits were good for only 60 days. They knew that they needed a CCCL permit from the Department if the structure were to achieve permanent permitting status. For that, they turned to their Qualified Representative in this proceedings, Ong-In Shin. Mr. Shin duly filed a CCCL permit application. The Application and Action by DEP On June 28, 2006, the Department received two applications for permits for construction seaward of the CCCL. Both were filed by Mr. Shin. One was filed on behalf of the Stovalls, the other on behalf of the Buntins. Section 4., of the applications, which called for "[a] brief description of the proposed work, activity or construction," contains the description: "Coastal Armoring." By letter dated July 11, 2006, the Department requested additional information related to the application. Among the eight separate requests was a request for a description of the proposed activity: "Please describe the work done at the subject property for which this After-the-Fact application has been submitted." Department Exhibit 7, at 80. In the notes of the request for additional information there appears the following: Please be advised that structures to be protected must be eligible and vulnerable as per Rule 62B-33.051, F.A.C. * * * Id. at 82. DEP has been notified by the Florid (sic) Fish and Wildlife Conservation Commission that Hesco box structures require an incidental take permit from the U.S. Fish and Wildlife service. The application was deemed incomplete a number of times and specific information was requested for it to be deemed complete. During the course of DEP's correspondence and additional submittals by Mr. Shin on behalf of the Stovalls and the Buntins, the Commission wrote to the Department on May 10, 2007, about its concern with regard to sea turtles. Based on Mr. Shin's representation that HESCO boxes are designed to collapse if subject to wave attack, Robin Trindell, Ph.D., wrote on behalf of the Commission to DEP, "Sea turtles attempting to nest or hatchlings in an area with HESCO containers could become entangled in these collapsible structures. Therefore, we do not recommend that these blocks be installed in sea turtle nesting habitat." Id. at 49. The application was deemed complete on August 30, 2007. On November 28, 2007, the Department issued a notice of denial that was received by Mr. Shin on December 4, 2007. While the HESCO Box System was found to meet applicable siting requirements, it was found to have failed to meet coastal armoring criteria related to eligibility, vulnerability, and design. Furthermore, the Department concluded that "the construction of the HESCO Box Container System does not meet the Department requirements for . . . absence of significant adverse impact to marine turtles." Id. at 9. A December 17, 2008, memorandum from Mr. Shin, received by the Department on December 24, 2007, put DEP on notice of his clients' intent to appeal the denial of the permit. The memorandum requested a 60-day extension of time to research the issues associated with the denial before beginning the "formal appeal process." Id. at 2. Mr. Shin filed the Petition for Formal Administrative Hearing with DEP on February 15, 2008. It initiated this proceeding at DOAH when the Department on February 29, 2008, requested assignment of an administrative law judge to conduct the proceedings. The issues in this case fall under two broad categories: Coastal Armoring and impacts to marine turtles. Coastal Armoring "Armoring" is defined by Florida Administrative Code Rule 59C-33.001(5): "Armoring" is a manmade structure designed to either prevent erosion of the upland property or protect eligible structures from the effects of coastal wave and current action. Armoring includes certain rigid coastal structures such as geotextile bags or tubes, seawalls, revetments, bulkheads, retaining walls, or similar structures but it does not include jetties, groins, or other construction whose purpose is to add sand to the beach and dune system, alter the natural coast currents or stabilize the mouths of inlets. (emphasis added). There is no question that the Stovall/Buntin Hesco Basket System is a manmade structure. Its purpose is to retain the sand under the Stovall and Buntin houses. At the same time, its construction resulted in sand added to the beach and dune system. One thing is clear: the HESCO Basket System is not conventional coastal armoring. Unlike "seawalls, revetments, bulkheads, retaining walls or similar structures" listed in the rule as examples of coastal armoring, the construction of the HESCO System led to a vegetated dune. Coastal armoring is closely regulated under Chapter 161 of the Florida Statutes by the Department and its Bureau of Beaches and Shores because that chapter is "all about protection of the beach dune system." Tr. 337. Coastal armoring usually contravenes such protection. "Coastal armoring does not protect the beach dune system. It's purpose . . . is to protect upland development." Id. While the purpose of the HESCO Basket System is to protect upland development unlike typical coastal armoring, it has added not only sand to the beach but has resulted in the creation and presence of a well-vegetated dune. Prior to 1995, "coastal armoring was only authorized as a last case possibility . . . ." Tr. 337-338. And it was only authorized when approval was given at the highest level of the state executive branch of government, the Governor and Cabinet. But the law was changed in 1995 in recognition that property owners have a right to protect their property. The Coastal Armoring Rule was amended to set up eligibility, vulnerability, siting and design criteria that would strike a reasonable balance between protection of the beach dune system and a property owner's right to protect his or her property. The law was amended again in 2006 to incorporate a new technology for dune restoration: geotextile systems. HESCO Basket Systems use in coastal armoring is also a new technology when it comes to Florida's beaches and shores. Use of HESCO baskets was described at hearing as "very new", tr. 344, relative to the time of the filing of Stovall and Buntin application. If the HESCO Basket System constructed on the Stovall and Buntin properties constitutes "armoring," then it must meet the requirements of Florida Administrative Code Rule 62B-33.051 which govern "Coastal Armoring and Related Structures" (the "Coastal Armoring Rule"). These requirements include conditions related to "eligibility", "vulnerability", and "design," some of the bases upon which the Department's denial of the after-the- fact permit rests. See Fla. Admin. Code R. 62B-33.0051(1)(a) and (2). Mr. McNeal's testimony established that the HESCO Basket System does not meet the "eligibility," "vulnerability," and "design," criteria for coastal armoring. But the Coastal Armoring Rule also encourages applicants for coastal armoring to "be aware that armoring may not be the only option for providing protection." Fla. Admin. Code R. 62B-33.0051(1). To that end, applicants for would-be armoring "are encouraged to evaluate other protection methods . . . such as dune restoration." Id. The HESCO Basket System installed by the Stovalls and Buntins follows the encouragement of the rule: it is a protection method that has resulted in dune restoration. CCCL Permit General Criteria Regardless of whether the HESCO Basket System and the vegetated dune it now supports constitutes coastal armoring, the structure on the Stovall and Buntin property must meet the General Criteria contained in Florida Administrative Code Rule 62B-33.005 for issuance of CCCL permits. Applications for those permits must be denied "for an activity which . . . would result in a significant adverse impact . . .". Fla. Admin. Code R. 62B-33.005(3)(a). Impact assessments conducted by the Department "shall include the anticipated effects of the construction on . . . marine turtles." Id. Marine Turtle Behavior Marine turtles spend most of their lives at sea often foraging hundreds of miles from their nesting habitat. Adult females migrate from feeding grounds and their foraging areas and aggregate off shore beginning in May of nesting season, generally from May through August. Off shore, the female turtles wait for nightfall to swim ashore and crawl landward in search of a spot to nest. Four species of marine turtles typically nest in Walton County: the Loggerhead, the green turtle, the Leatherback and Kemp's Ridley. Because the Loggerhead and green turtle are by far the most prevalent on Walton County beaches, the Commission focused on their specific behavior when it presented the testimony of Dr. Witherington. The mechanics of crawling differ between Loggerhead and green turtles. Loggerheads use an alternating gait while green turtles have simultaneous butterfly-style strokes. Both species drag the plastron or "belly shell" using all four flippers. Their crawls enable them to scale slopes and penetrate dune vegetation but they are not able to crawl backward. They are capable of crawling up a slope that is steeper than one to one. At a location between the recent high water mark, often observable by a wrack line (floating seaweed washed ashore) and the crest of the primary dune, the female selects a spot. The female creates a pit that she can slide her body into it. Loggerheads do so by scraping sand from the front with their front flippers and by gathering sand from beneath at the posterior to push it behind. This behavior referred to as "body pitting" tr. 474, results in a pit that the turtle eases into at a slight angle posterior end-downward at the deepest part of the pit. Green turtles have similar body-pitting behavior but it is more elaborate. "A green turtle will . . . blast the sand out in front of it, dig an enormous pit . . . two or more feet deep and create a very large mound." Tr. 475. Beneath the body pit, the turtle digs an egg chamber. For Loggerheads the depth of the egg chamber is "a little over two feet . . . say 26 inches or so," tr. 482 from the surface of the sand. For a green turtle, the depth is closer to 3 feet. On average, clutch size for a Loggerhead is 115 eggs. The range is from 70-to-170 eggs per clutch. Average clutch size for green turtles in Florida is roughly 128 with a range from 70 to 200. Turtles and the Stovall/Buntin Property Assuming no obstacles such as an exposed HESCO Basket, a sea turtle would have no trouble making its way to the crest of the HESCO Basket dune on the Stovall/Buntin property. The Stovall/Buntin dune supported by HESCO baskets is mostly vegetated with sea oats. There is Seaside Evening Primrose and some Beach Morning Glory, too. As long as the turtles are not interfered with by the HESCO baskets, a sea turtle would have no problem nesting amidst the vegetation on the Stoval/Buntin dune. Heavily eroded beaches do not discourage sea turtle nesting behaviors. But where sea turtles choose to nest on a heavily eroded beach is altered by the erosion. Dr. Witherington explained: [F]ollowing a severe erosion event, . . . [t]he beach tends to be flatter and in some cases broader and with escarpment from erosion that has occurred. And almost invariably following severe erosion events . . ., sea turtles aim for the high ground. In part, because that is the only dry sand remaining on the beach, . . . [a]nd they're choosing the safest sites on the beach to nest. Tr. 485. Thus, the erosion that has occurred on the Stovall/Buntin property is not likely to deter sea turtles from nesting there. Almost all of the area seaward of the Stovall and Buntin houses is nesting habitat, but if a sea turtle chooses to nest there, the most likely place is somewhere on the dune created by the HESCO Baskets. Threats to Sea Turtles Sea turtles encounter numerous threats, impediments and hazards when they are attempting to nest on beaches visited by human beings as much as the beaches of Walton County currently. Coastal armoring is commonly recognized as a threat to sea turtle nesting because it serves as a barrier to sea turtle nesting habitat -- precisely the opposite of the Stovall/Buntin HESCO Basket-supported dune which is an appealing place along a severely eroded beach in which to nest. Man-made debris is a threat to sea turtles. There are numerous types of debris: monofilament line is one example. Holes in the sand dug by beachgoers, beach furniture and walkways are either barriers or can cause entanglement that can lead to sea turtle injury or death. If a turtle gets up on a sea wall and falls, the fall can seriously injure the turtle or result in death. Artificial lighting is a particularly dangerous and prevalent threat. The lighting can disorient both nesting turtle and hatchlings causing them to move away from the ocean or gulf. Death can result from dehydration in the morning sun, wandering inland and falling prey to predators, or ending up on highways and being struck by cars. In addition, there are natural threats to sea turtles. A variety of predators dig into sea turtle nest for the eggs. The eggs may be swept away when the sediment around the clutch is washed away. Inundation, as well, if over too long a period can destroy the eggs. Exposed HESCO baskets are a threat to sea turtles and their hatchling in multiple ways. The ways in which they could injure or kill a turtle were described by Dr. Witherington: HESCO baskets accessible to sea turtles would act as a barrier to a sea turtle reaching an appropriate nesting habitat. An open HESCO basket . . . could act as a trap, . . . [for] turtles that might end up inside the top of the basket itself, and then there's an entanglement effect that would probably be of very little concern for HESCO baskets that were not exposed, but when they do become exposed, the entrapment effect would be much . . . larger . . . Tr. 502. Dr. Witherington also described three problems that could be posed by an exposed HESCO basket shown in a photograph taken on the Stovall property and attached to a Site Inspection Report date November 19, 2007. See Department Exhibit 16P, at 9. These were first, "the pitfall hazard," tr. 504, second, a vertical fall that the turtle might take from atop an exposed basket, and, third, entrapment. As for entrapment, Dr. Witherington opined, "it may look to many that the open HESCO baskets don't leave much opportunit[y] for the sea turtle to become entrapped, but one thing we learned is that sea turtles often make their own traps," id., when presented with situation similar to that of an exposed HESCO basket. There is another hazard to sea turtles posed by a HESCO basket if the baskets were buried beneath where a nesting turtle was digging its nest. If the turtle were to dig into the basket and strike it, it could cause the turtle to abandon the site and return to the sea. If the dune that the HESCO Baskets support were to be washed away in a storm and the basket structure were to fail, the debris left would be a "particularly pernicious tangle of wire and mesh that would very much have the potential to ensnare sea turtles." Tr. 507. A Sea Turtle Take In Dr. Witherington's opinion, HESCO baskets constitute significant habitat modification or degradation that could significantly impair the essential behavioral pattern of breeding. If HESCO baskets killed or injured a marine turtle, therefore, they would constitute a "Take," as defined by Section 373.2431(1)(c)2., Florida Statues: "'Take' means an act that actually kills or injures marine turtles, and includes significant habitat modification or degradation that kills or injures marine turtles by significantly impairing essential behavioral patterns, such as breeding, feeding, or sheltering." "Any person . . . that illegally takes . . . any marine turtle species, or the eggs or nest of any marine turtle species . . . commits a third degree felony, punishable as provided [by law.]" § 379.2431(1)(e)5., Fla. Stat.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Coastal Construction Control Line Permit applied for by the Stovalls and Buntins be issued with the conditions listed in paragraph 110, above. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2009. COPIES FURNISHED: Stanley M. Warden, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building, Room 108 620 South Meridian Street Tallahassee, Florida 32399-1600 Kelly L. Russell, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ong-In Shin Florida Coastal Development Consulting, Inc. 4654 East Highway 20 Niceville, Florida 32578 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Petitioner should be granted conditional use approval to sell beer and wine at his restaurant located on Petitioner's property at 201 South Gulfview Boulevard, on Clearwater Beach, in the City of Clearwater, Florida.
Findings Of Fact On or about August 27, 1990, Petitioner filed an application for conditional use approval with the Planning and Development Department of the City of Clearwater to permit the sale of beer and wine for on-premise consumption at a restaurant known as Britt's Beachside Cafe located on Petitioner's property at 201 South Gulfview Boulevard, on Clearwater Beach, in the City of Clearwater. The subject property is zoned CR-28. Within that zoning district classification, the sale of alcoholic beverages for consumption on the premises is allowable upon detaining a conditional use approval. However, all such alcoholic beverage sales for consumption on the premises shall be located in a hotel or motel in conjunction with a 4-COP-S license or within a restaurant deriving 51 percent or more of its gross revenue from the sale of food and nonalcoholic beverages. The subject property is improved and is presently used as a restaurant, the present restaurant use contains 2170 square feet of gross floor area and requires 11 parking spaces. The parking space calculation was made according to the formula of one space per 200 square feet of gross floor area, the general parking formula for restaurants, with a 50 percent reduction allowed for Clearwater Beach locations. The Petitioner proposes to enlarge the restaurant by adding outdoor seating, increasing the use area to 2500 square feet, and adding the sale of beer and wine for consumption on the premises. This will increase the required parking spaces to 32. Eating and drinking establishments licensed by the State of Florida for on-premise consumption of alcoholic beverages require 2 1/2 times the parking space required for a restaurant not serving alcoholic beverages for on-premises consumption. Petitioner operated a restaurant very similar in size and menu serving beer and wine in a larger hotel with a smaller parking lot approximately 60 feet north of the subject property for 3 1/2 years before he lost his lease and moved to the subject premises. Petitioner operated his former restaurant with essentially the same number of parking spaces without incident and with no complaints addressed to any agency of the City of Clearwater. The denial of Petitioner's conditional use was based solely upon the number of available parking Spaces, as Petitioner met all other requirements of the Code for the conditional use requested. A waiver of the required parking spaces can be granted only by the Development Code Adjustment Board, while conditional use approval is made by the Planning and Zoning Board. The Adjustment Board will not consider Petitioner's request for waiver of the parking requirements until after he has obtained conditional use approval from the Planning and Zoning Board. Accordingly, Petitioners find themselves a catch-22 situation.
