The Issue The issue for determination at the final hearing was whether the Petitioner Blaha possessed the requisite standing to maintain this action and if so, whether the Applicant Aquarina Developments, Inc., established by a preponderance of the evidence entitlement to a permit from the Coastal Construction Control Line ("CCCL") which would authorize construction of the following: (1) twelve above-ground balconies extending five feet over the CCCL; (2) two roof overhangs extending approximately one foot over the CCCL; (3) two dune walkovers and four decks providing elevated beach access; and (4) a temporary fence extending no more than five feet beyond the CCCL. At the final hearing, the Respondent Aquarina Developments, Inc., (hereafter "Aquarina" or "Applicant") offered Respondent's Exhibits 1-16, which were admitted into evidence. Edward Fleis, Howard J. Teas, Bert Leltz and Ross Witham testified on behalf of the Respondents. Peter Pritchard, Rob Lee and Georges Blaha testified for the Petitioner. Additionally, public comment was taken as provided at Section 120.57(1)(b)(4), Florida Statutes. A Proposed Recommended Order has been submitted by the Respondent Aquarina Developments, Inc. To the extent that the proposed findings submitted by Respondent are not reflected in this Order, they are rejected as unsupported by the weight of credible evidence or as being immaterial to the results reached.
Findings Of Fact By application No. 775-020.61 filed on July 1, 1981, Respondent Aquarina requested a coastal construction permit for construction of portions of twelve cantilevered balconies, two roof overhang sections, a temporary construction fence, four elevated wooden decks, and two dune crossovers, all seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida. The purpose of the proposed structures is to enhance utilization of the beach by residents of Aquarina's PUD located between the Atlantic Ocean and Mullet Creek, a tributary of the Indian River in South Brevard County, while at the same time inhibiting the deleterious effects of unrestrained pedestrian and vehicular access across the beach dune on the property. Respondent Aquarina's project is located on the barrier islands separated from the mainland by the Indian River, thirteen miles south of Melbourne and five miles north of Indian River County. Aquarina proposes to develop a condominium community approved as a PUD by Brevard County, with a projected population of 3,400 persons including 1,600 residential units, a commercial area, and 500 hotel rooms. The project includes at least two condo- mini urn buildings located entirely landward of the CCCL except for the following specific portions: Twelve cantilevered balconies ex- tending approximately five feet beyond the CCCL but not touching the ground; Two roof overhang sections extending approximately one foot beyond the CCCL; Two beach-dune walkover structures to be constructed a maximum of seventy- five feet seaward of the CCCL, which are to provide controlled beach access; Four elevated wooden observation decks constituting integral parts of the walkover structures; A temporary construction fence extending no more than five feet beyond the CCCL. On or about November 20, 1981, the Department indicated its intent to recommend to the Executive Director the issuance of the Applicant's coastal construction permit. After the granting of a requested extension of time, Petitioner Blaha filed objections and a Petition for the Initiation of Formal Proceedings under Section 120.57, Florida Statutes. The Petition raised three issues: Whether construction of the proposed minor structures seaward of the CCCT would harm sea turtles inhabiting the area at issue; Whether a new CCCL should have been set based on changing conditions in the area; Whether the additional shading caused by the proposed structures would harm the dune vegetation system. At the beginning of the hearing, the Hearing Officer heard argument and received evidence on the issues raised by the Motions to Dismiss filed by the Department and the Applicant. The Respondent's Motions raised three issues: Whether the Petitioner had standing to initiate this cause; Whether the alleged impact that the Applicant's proposed coastal construction would have on sea turtles lies within the jurisdiction of the Department and the Hearing Officer under Chapter 161 of the Florida Statutes; and Whether the exact configuration of the CCCL is a proper subject for consi- deration at a hearing challenging the proposed issuance of a coastal construction permit. Petitioner Blaha admitted that he did not live on the beach at issue and in fact lived on the west side of State Road A1A, three miles to the north of the Applicant's proposed project. The Petitioner stated that he was the Director of the Space Coast Branch of Friends of Animals, an environmental organization concerned about wildlife, although not representing the organization in this proceeding, and that he had a general interest in protecting the beach from erosion, a problem affecting everyone on the barrier island. In response to the argument that Petitioner Blaha had no special interest differing in kind from the interests of the general public, the Petitioner alleged that he runs on the beach and observes the sea turtles, arguing that this evinces a more than average interest in protecting the beach and its wildlife. The Hearing Officer also heard argument on whether the Department has jurisdiction to consider potential impacts on the nesting habitats of sea turtles from proposed coastal construction, under Chapter 161, Florida Statutes. Petitioner Blaha urged that although Section 161.053, Florida Statutes and the rules promulgated thereunder do not address sea turtles and their protection, the statute should be so interpreted. The Department responded that any jurisdiction it may have over sea turtles would be reposited in its Marine Resource Division, not in the permitting procedures for a coastal construction permit. In addition, federal laws protect endangered sea turtles, and the federal government has primary jurisdiction over the regulation of the nesting habitats of such sea turtles. Similarly, the Applicant and the Department pointed out that the Petitioner's criticism of the placement of the present CCCL falls outside the scope of a hearing on the issuance of a coastal construction permit, since Section 120.54, Florida Statutes provides for rulemaking proceedings for those attempting to change a rule established CCCL and Rule 16B-33.10, Florida Administrative Code, contains provisions for CCCL revisions or modifications on application of a riparian owner of property at or on the CCCL. Petitioner Blaha is not a riparian property owner and this was not a proceeding under Section 120.54, Florida Statutes. Respondent Aquarina established that it had taken and would continue to take all reasonable actions necessary to ensure the protection of sea turtles that inhabit the site through public relations campaigns and public advertisements to educate the public and especially the residents of the PUD and through architectural design efforts and dareful construction practices that will limit the impact of the proposed development on sea turtles and their nesting habitats. Moreover, to the extent that the development might have an impact on sea turtles, the source of the impact would not primarily be the structures at issue in these proceedings, but the buildings, parking lots, and other human habitation lying landward of the CCCL. The proposed temporary construction fence to be placed five feet beyond the CCCL will help conserve the dunes by limiting the potential impact of construction, and the Respondent Aquarina has agreed to restore that affected area to its natural state upon the completion of construction. Most importantly, the proposed dune crossovers will protect the dunes from the destruction that is occurring in the dunes to the north of the project and on the project site itself because of unrestrained pedestrian and vehicular traffic over and/or through the dunes and the accompanying destruction of dune vegetation in those areas. The dune crossovers are wooden walkways on raised pilings designed to have as little contact with the dunes as possible, with railings to restrain pedestrians from straying away from this direct access from the condominiums to the beach. The crossovers will make it unnecessary and undesirable for residents and visitors to create alternative foot paths through the heavy dune vegetation to the beach. Coupled with the educational program already being implemented by Aquarina, the dune crossovers should help to conserve the dunes. The Respondent Aquarina established that the incremental shading caused by the proposed roof overhangs extending about one foot beyond the CCCL and the cantilevered balconies extending approximately five feet beyond the CCCL would not significantly add to the shading from the buildings themselves, which lie entirely landward of the CCCL. The evidence showed that even the impact of the shading from the landward buildings would have no significant impact on the dune vegetation system or increase the rate of erosion or deterioration of the dune. See Rule 16B-33.02(23)(b), Florida Administrative Code. The additional impact from the minor structures for which the Respondent Aquarina seeks its permit should be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Department of Natural Resources, through its Executive Director, grant the requested construction control permit to the Applicant Aquarina Developments, Inc., subject to the conditions stated in the proposed permit (No. BE-80), the draft of which was attached to the Department's letter of November 20, 1981, notifying Petitioner Blaha of the Department's intent to issue the requested permit. DONE and ORDERED this 25th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1982. COPIES FURNISHED: Georges Blaha 280 Flamingo Drive Melbourne Beach, Florida 32951 Deborah A. Getzoff, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Clifford A. Schulman, Esquire GREENBERG TRAURIG ASKEW HOFFMAN LIPOFF QUENTEL & WOLFF, P.A. 1401 Brickell Avenue Miami, Florida 33131 Henry Dean, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Executive Director Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303
Findings Of Fact Petitioner, Wingfield Development Company (WDC), is a real estate development company located at 390 North Orange Avenue, Suite 1800, Orlando, Florida. In late 1982 or early 1983, WDC began developing a resort project known as Turtleback Beach Club (the project) in Indian River County. When completed, the project will consist of a 256 unit hotel, 68 villas, two swimming pools, a number of cabanas, a reverse-osmosis water plant, and other amenities which will cost approximately $50 million. All structures were designed to be constructed landward of the then existing coastal construction control line (CCCL). The date of establishment of the original CCCL is not of record. From late 1982 or early 1983 until 1987, WDC expended approximately $1.4 million on the project. Among the expenditures were the preparation of extensive cite and design plans, the installation of off-site utilities, and the fabrication and installation of some two hundred pilings and a number of pile caps. All such work was performed landward of the then existing CCCL. On March 5, 1987 respondent, Department of Natural Resources (DNR), reestablished the CCCL in Indian, River County. The new CCCL was more landward than the original CCCL. This resulted in several portions of the project, including all or parts of the villa and hotel, being seaward of the new CCCL. In November 1987 WDC was advised by the Indian River County Building Department to cease construction activities because, after consultation with DNR, it has decided not to make any further inspections. On April 4, 1988 DNR advised WDC by letter that, after making a site review of the project, it had determined that: the foundations for the hotel structure and the cabana located in the southeast portion of the property were `under construction' pursuant to the definition contained in Subsection 16B-33.002(56), Florida Administrative Code, at the time of the reestablishment of the coastal construction control line on March 4, 1987, ... (and that) the remaining five proposed cabana structures located on the south half of the property and shown to be seaward of the new control line, the proposed swimming pools, decks and gazebos, parking areas also shown to be seaward of the new control line and any other proposed landscaping work were not `under construction' pursuant to the definition. The letter added that the: staff shall consider the exemption status for the hotel and the one cabana under construction void if construction activity on these structures remains idle for a period of six months from the date of receipt of this exemption determination and prior to completion of the structures. Finally, the letter required petitioner to submit: a proposed `build out' schedule (that) would entail providing (the) staff with specifics of where (petitioner) expect(s) the overall project to be at ninety (90) day intervals up through completion of the structures located seaward of the coastal construction line. The staff feels that two years should be more than ample time with which to complete that portion of the project located seaward of the coastal construction control line. Progress must be maintained on each structure during each six month interval. Additionally, should your project fall short of any ninety day progress levels to be referenced in your `build out' plan, your project will lose it's (sic) exemption status and all remaining portions of the project, seaward of the control line will require a permit from the (DNR) in accordance with the provisions of Section 161.053, Florida Statutes. Because the letter offered a point of entry to contest the proposed agency action, WDC requested a section 120.57(1) hearing. At the same time, it continued construction on the project. On November 25, 1988 DNR issued further proposed agency action in the form of a letter advising WDC that, based upon a review of WDC's exemption file, the exempt status of the project had been "lost" and that any further construction activity seaward of the CCCL would require a permit from DNR under section 161.053. The receipt of this advice prompted WDC to file a second request for a section 120.57(1) hearing and a petition seeking to invalidate what it perceived to be an illicit rule, or in the alternative, the two rules from which the statements were drawn. WDC contends that DNR's requirement that, once a project is given an exempt status, it must remain under active construction and the owner must submit for DNR's approval a "build out" schedule, is an illicit rule since such a requirement is not contained in DNR's rules. Under state law, as implemented by DNR, no construction activity may take place seaward of a CCCL without a permit from DNR. However, any projects that are under construction at the time of the establishment of the CCCL are exempt from such permitting requirements. Under the current DNR organizational structure, the Division of Beaches and Shores (Division) is charged with the responsibility of administering and enforcing the CCCL regulatory program. The Division's Bureau of Coastal Engineering and Regulation has been assigned the task of performing a site review of all projects for which local building permits have been issued at the time of the establishment of a CCCL. If a project is under construction, as defined in DNR rules, at the time of the establishment of the CCCL, the owner may continue his activities even if the structures are seaward of the CCCL. A determination as to whether a structure is under construction at the time a CCCL is reset does not take into consideration the impacts the structure will have on the beach and dune system. This is because DNR considers such a determination to be regulatory in nature, and such impacts would be irrevelant to that decision. The Division construes its authority as also permitting it to require an exempt project to remain under active construction once it receives an exempt status. It does so on the notion that this insures that the exemption status was obtained in good faith, and the builder intended to go forward with the construction in a timely manner and as originally conceived. It has been DNR's experience that some property owners have engaged in a minimal construction program to circumvent the regulatory process. To prevent this, DNR has imposed a requirement that, if construction activity ceases for a period of six months or more, the exempt status will be lost. A six month time period was used because DNR realized that short, unforeseeable delays of less than six months were not uncommon. This policy has been uniformly applied, without discretion to agency personnel to do otherwise, on all projects classified as exempt. In addition, DNR has required project owners to submit to DNR staff a so-called "build out" schedule containing a construction schedule at ninety day time intervals with a time certain for completion of the project. This requirement, although infrequently used, has been uniformly imposed, when needed, upon all exempt projects, including that of WDC. The agency concedes that there is no specific statutory language authorizing the above requirements. However, it takes the position that these requirements are authorized and sanctioned by chapter 161 as a whole and by rules 16B-33.002(56) and 16B-004(1), which happen to be the rules challenged by WDC. Those rules read as follows: 16B-33.002 Definitions. (56) "Under construction" is the continuous physical activity of placing the foundation or continuation of construction above the foundation of any structure seaward of the established coastal construction or setback line. Under construction does not include application for or obtaining a building permit, a site plan approval or zoning approval from the appropriate local government agency having jurisdiction over the activity, purchasing construction materials, placing such construction materials on the site, clearing or grading the site in anticipation of construction, site surveying, continuation of site work beyond the limits of the foundation including landscape work or construction of nonhabitable major structures or rigid coastal or shore protection structures, or reactivating construction after substantially all construction activity has remained stopped for a period of six months or more. 16B-33.004 Exemptions from Permit Requirements. (1) Any structures under construction prior to the establishment of a coastal construction control line in a particular county are exempt from the provisions of Section 160.053, Florida Statutes, and this Chapter, except as noted in Subsection 161.053(12), Florida Statutes. Respondent acknowledges that there is nothing in rule 16B-33.004(1) that specifically authorizes it to impose the challenged requirements. However, it relies upon that part of the rule which reads "except as noted in Subsection 161.053(12), Florida Statutes" as implicitly authorizing this action. That statute removes the exempt status of a project if there are any subsequent modifications which "require, involve, ,or include any additions to, or repair or modification of the existing foundation of that structure." According to the Division director, it construes that language as authorizing it to make a determination as to whether the project owner has made any substantial changes in the nature of the project or if construction has been continuous. Respondent also relies upon rule 16B-33.002(56) which defines the term "under construction" as being "the continuous physical activity of placing the foundation or contination of construction above the foundation of any structure seaward of the established coastal construction control or setback line." The Division interprets this language to mean that construction must be continuous and without a cessation of activities of more than six months. This rule language is bottomed on subsection 161.053(9) which reads in pertinent part that "the provisions of this section do not apply to ... structures existing or under construction prior to the establishment of a coastal construction control line as provided herein; provided such structures may not be materially altered except as provided in subsection (5)." Finally, the agency relies upon subsection 161.053(1)(a) which sets forth the legislative intent behind the establishment of CCCLs. Among other things, the purpose of a CCCL is to protect, the beaches and dunes from imprudent construction which can "provide inadequate protection to upland structures." In the words ,of the Division director, DNR interprets this language to mean that it has the authority to "go back and look at projects once they are declared exempt, and to make sure that they remain exempt under the statute." The DNR documents which grant exemptions do not contain any reference to requirements that there be continuous construction on the project and that a build out schedule be submitted thereafter. Even so, DNR contends it is merely granting a "conditional" exemption conditioned on the project owner maintaining active and continuous construction. It posits further that, without such authority, its regulatory program would be rendered ineffective. However, the Division director conceded that, even without the imposition of these requirements, DNR still has authority to regulate all structures which are constructed seaward of the CCCL and to prohibit any material changes to an existing or partially completed structure. Petitioner intends to complete its project, but contends it cannot do so at the pace required in DNR's build out schedule. Also, WDC points out that it is unable to secure permanent financing for the project since lender's are uncertain if DNR will approve the build out schedule and allow construction to go forward or instead precipitously halt the construction. There have been no construction activities on the project since November 1988.
Findings Of Fact The subject property Petitioners, Michael and Janice Rush, are the owners of a single family residence located at 3032 North Atlantic Boulevard, Fort Lauderdale, Broward County, Florida. Such residence lies seaward of the Broward County Coastal Construction Control Line (CCCL) and is therefore subject to the permitting jurisdiction of respondent, Department of Natural Resources (Department). Section 161.053, Florida Statutes. The first application In April 1991, Petitioners filed a permit application (Permit File No. BO-267) with the Department for permission to renovate their home and construct a swimming pool. That application was found to be incomplete, and by letter of April 17, 1991, the Department notified petitioners of the information required to complete their application. Following receipt and review of the requested information, the Department, by letter of July 26, 1991, advised petitioners that, as proposed, their application to construct a pool and renovate the home would have to be denied. Pertinent to the proposed pool, such letter observed that a portion of the pool would be located seaward of the 30-year erosion projection which is prohibited 1/, the general construction line of major structures would be advanced further seaward, adverse impacts to the beach/dune system during a major storm event could be expected, and cumulative adverse impacts could be expected. Thereafter, by letter of August 14, 1991, the Department was advised that petitioners were submitting new house plans for the subject property, and that the request for leave to construct the pool had been removed from their application. 2/ On December 23, 1991, the Department issued a final order in Permit File No. BO-267 which authorized the petitioners to remodel their home. Such final order observed: . . . The direct and cumulative impacts to the beach and dune system that will be caused by both the seaward location and shore- parallel width of the proposed construction represent the maximum such impacts that are acceptable to the Department. Therefore, future construction on the site seaward of the coastal construction control line shall not extend further seaward of, or increase the shore- parallel coverage occupied by, the proposed structures approved pursuant to this permit. The pool, which petitioners had initially proposed to construct seaward of the home, but subsequently deleted from their plans, constituted a major structure, albeit nonhabitable. Rule 16B-33.002(54)(b), Florida Administrative Code. Petitioners were expressly advised by the Department of their right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, to contest the provisions of the final order. No such contest was filed. 3/ The pending application On February 20, 1992, petitioners filed a new application (Permit File NO. BO-289) with the Department for permission to construct the swimming pool on their property. As proposed, the pool would be located in the beach-dune system seaward of petitioners' home, as well as seaward of an existing retaining wall on the petitioners' property. The pool would measure 16.0' x 35.7' externally, be constructed of reinforced gunite, and be supported by ten piles. The alignment of the pool would be in the shore parallel direction, rather than the shore normal direction as proposed in the prior application, thereby placing the pool landward of the 30-year erosion projection. By letter of March 8, 1992, the Department advised petitioners that their application was incomplete, and requested additional information. Petitioners submitted the final information necessary to complete their application on July 21, 1992. By letter dated October 7, 1992, received by petitioners' representative on October 13, 1992, the Department issued a public notice as follows: The referenced application for a permit pursuant to Section 161.053, Florida Statutes, has been placed on the agenda of the head of the Department of Natural Resources (Governor and Cabinet). The application will be reviewed by the Cabinet Aides in the Cabinet Meeting Room on the lower level of the Capitol, at 9:00 a.m., October 14, 1992. The application will then be heard by the Governor and Cabinet in Room LL03 of the Capitol, at 9:00 a.m., October 20, 1992. You may attend these meetings if you desire. The recommendation [for denial] shown on the enclosed agenda item has been made to the head of the Department by the Executive Director. This represents an agency determination. . . . The notice, consistent with the provisions of Rule 16B-33.012(8), Florida Administrative Code, further advised that any substantially affected person had the right to request a formal hearing, pursuant to Section 120.57, Florida Statutes, within 21 days of receipt of the notice, and that "If the decision of the Governor and Cabinet is different from the staff recommendation as noticed . . ., then the applicant or any substantially affected person shall have 21 days from the date of the Governor and Cabinet's announcement of their decision in which to petition the agency for a hearing." The basis for the Department's denial of petitioners' application to construct the swimming pool was stated as follows: The proposed swimming pool is not consistent with Rule 16B-33.005(1), Florida Administrative Code, because it has not been clearly justified by the applicant and less impactive alternatives are available. For example a similar structure could be sited in a less impactive location landward of the single-family dwelling on the southwest corner of the property. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(a), Florida Administrative Code, for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(c), Florida Administrative Code, for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties. The proposed swimming pool is inconsistent with Paragraph 161.053(5)(b), Florida Statutes, because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area. The proposed swimming pool is inconsistent with Rule 16B-33.007(1), Florida Administrative Code, because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shore line fluctuations and to preserve dune stability and natural recovery following storm-induced erosion. The proposed swimming pool is not designed pursuant to Rule 16B-33.007(2), Florida Administrative Code, to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system. * * * 8. The proposed project is not designed pursuant to Rule 16B-33.005(7), Florida Administrative Code, because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event. The Department, therefore, may not authorize the construction of the pool. On October 13, 1992, petitioners requested that their application be removed from the agenda, and be rescheduled for "a later date to be determined." The rationale for petitioners' request was to afford "an opportunity for the permittee and staff to meet in Tallahassee in early to mid November and reach a design for a pool which can be recommended favorably by staff." By letter of October 14, 1992, the Department granted petitioners' request and the item was removed from the agenda for the Governor and Cabinet meeting of October 20, 1992. Such letter further provided that although the Department was willing to meet with petitioners to discuss the staff concerns about their application, that it "must caution you . . . that at this time I do not anticipate that a swimming pool, as you requested, can be satisfactory [sic] located seaward of your home." Petitioners and the Department were unable to resolve their dispute. Accordingly, petitioners filed a petition on November 2, 1992, to contest the proposed denial of their application. By letter of November 13, 1992, the Department advised petitioners that their request for formal administrative hearing was inadequate, but accorded them 14 days from receipt of such letter to submit an appropriate request. Petitioners timely submitted an appropriate request for hearing on November 30, 1992, and the matter was thereafter referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. 4/ The merits of the pending application As heretofore noted in the findings of fact, the Department enunciated seven reasons to support its denial of petitioner's application. The first basis for denial was the Department's assertion that the proposed swimming pool was not consistent with Rule 16B-33.005(1), Florida Administrative Code, "because it has not been clearly justified by the applicant and less impactive alternatives are available." In this regard, it is observed that Rule 16B-33.005(1), Florida Administrative Code, provides: . . . Establishment of a coastal construction control line . . . does not preclude all development of or alteration of coastal property seaward of such lines. However, activities seaward of a coastal construction control line . . . shall be limited and the necessity of such development, construction or alteration shall be stated and clearly justified by the applicant. (Emphasis supplied) The aforesaid rule does not further explain what is contemplated by the requirement that the applicant clearly justify the "necessity" of the proposed development; however, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary. 5/ In this regard, "necessity" is defined to mean "something that cannot be done without." Websters New Twentieth Century Dictionary. It is also defined as "something needed for the existence, effectiveness, or success of something (a requirement)," and "the state or fact of being required or unavoidable." The American Heritage Dictionary of the English Language. Here, the proof fails to demonstrate any "necessity" to construct the swimming pool since it fails to credibly support the conclusion that such construction is required for the effective or reasonable use of petitioners' property or that such construction is essential for the well-being of its occupants.6/ To the contrary, the petitioners' decision to construct the pool is merely a matter of personal preference or convenience. Moreover, the proof fails to demonstrate any "necessity" to construct a pool of the size and configuration proposed (16' x 35.7' with a maximum depth of 8') or of the materials selected (reinforced gunite supported by piles). Indeed, a pool of a different configuration or size could be located elsewhere on the property and the pool could be constructed on a base slab foundation or of vinyl to alleviate the adverse effects of its current design, discussed infra. 7/ As further reasons for denial, the Department concluded that construction of the swimming pool was not consistent with Rule 16B-33.005(2)(a), Florida Administrative Code, "for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade"; Rule 16B-33.005(2)(c), Florida Administrative Code, "for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties"; Rule 16B- 33.007(1), Florida Administrative Code, "because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shoreline fluctuations and to preserve dune stability and natural recovery following storm-induced erosion"; and Rule 16B-33.007(2), Florida Administrative Code, "to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system." Pertinent to the aforesaid reasons for denial, Rule 16B-33.005(2), Florida Administrative Code, the "Department Policy Statement on Permits," provides: Seaward of the coastal construction control line . . ., special siting, structural and other design considerations are required: (a) for the protection of the beach-dune system; * * * (c) for the protection of adjacent properties. And, Rule 16B-33.007, Florida Administrative Code, the "Structural and Other Requirements Necessary for Permit Approval," provides: The proposed structure or other activity shall be located a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and natural recovery following storm induced erosion . . . . All structures shall be designed so as to minimize any expected adverse impact on the beach-dune system or adjacent properties and structures and shall be designed consistent with Section 16B-33.005, Florida Administrative Code. Relevant to such rules, the proof demonstrates that the frontal dune on the subject property appears to have been leveled at an elevation of approximately +12.0 feet NGVD, and petitioners' home is located on top of the crest of the frontal dune. The seaward slope of the frontal dune begins at the seaward face of the house and slopes down to the beach. Approximately 12 feet seaward of the house is an existing retaining wall. The proposed pool will be sited immediately seaward of such wall and therefore on the seaward slope of the frontal dune. The proposed pool is a pile supported concrete swimming pool with exterior dimensions of 16.0' shore-normal by 35.7' shore-parallel, and a maximum depth of 8.0'. The foundation is specified to be auger-cast piles, which will penetrate to an elevation of -23.0' NGVD or 3' embedment where a rock layer is encountered. The elevation of the pool is proposed at +13.0' NGVD, with a bottom elevation of +4.0' NGVD. As designed and sited, construction of the pool would destabilize the dune, hinder its function of protecting upland development during a storm event, and adversely affect natural shoreline fluctuation and recovery following storm induced erosion. In this regard, the proof demonstrates that the location of the pool seaward of the existing retaining wall would interrupt the natural continuity of dune formation because sand would accumulate seaward of the pool in a less stable location and would impede the accumulation of sand on adjacent properties. Construction of the pool, as designed and sited, would also induce scour during the course of a storm event impacting the structure. Such storm- induced scour, in addition to erosion, would cause the loss of additional sand at the vicinity of the structure, robbing the beach-dune system of additional sand necessary to protect upland structures, and would also contribute to the potential failure of the structure itself and other upland structures. In this regard, the proof demonstrates that approximately 1,000 cubic yards of sand would be lost on petitioners' section of the beach in the event of a 10-year storm. Additionally, structure-induced scour of 77.5 cubic yards from the ten piles, 120.4 cubic yards from the pool shell, and 15.8 cubic yards from the "end effects" of the pool (the amount of structure-induced scour from the ends of the structure) might reasonably be anticipated in the event of a 10-year storm. If the pool were to be impacted by a higher frequency storm, such as a 20-year or a 100-year storm, scour and erosion would increase. 8/ As an additional basis for denial, the Department concluded that construction of the pool was not consistent with Section 161.053(5)(b), Florida Statutes, "because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area." Here, the proof supports the Department's conclusion. As its final basis for denial, the Department concluded that construction of the pool was not consistent with Rule 16B-33.005(7), Florida Administrative Code, "because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event." Pertinent to the aforesaid basis for denial, Rule 16B-33.005(7), Florida Administrative Code, provides: An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site; however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event . . . . Here, petitioners' project is expected to have significant adverse impacts to the beach-dune system as a consequence of its design and siting. Accordingly, the provisions of Rule 16B-33.005(7), Florida Administrative Code, are not relevant. Moreover, there was no proof concerning any similar structures along the coast, existing or proposed, that would contribute to or intensify the degradation of the beach-dune system occasioned by the proposed project. Accordingly, it cannot be concluded that cumulative impact is a relevant issue in these proceedings. While cumulative impact is not relevant to the pending application, the other reasons advanced by the Department for denial of the application have, as heretofore found, a rational basis in fact. Under such circumstances, petitioners have failed to demonstrate their entitlement to the subject permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioners' application to construct seaward of the CCCL. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November 1993.
The Issue Petitioners challenged the Department of Environmental Protection's (Department) preliminary Final Order, alleging that Petitioners committed the "unauthorized clearing and destruction of dunes and dune vegetation for the purposes of constructing a roadway seaward of the coastal construction control line [(CCCL)] without benefit of a permit." The ultimate issue is whether the work Petitioners performed was seaward of the CCCL, and if it was, whether there was a violation of Amended Permit FR-563 and Section 161.053(2), Florida Statutes.
Findings Of Fact Parties Petitioner, Ben Withers, Inc., is a Florida corporation doing business in the State of Florida. Petitioner, Ben Withers, is the President and owner of Ben Withers, Inc., and a resident of Panacea, Florida. (Henceforth, Ben Withers and Ben Withers, Inc., are referred to collectively as "Mr. Withers," unless otherwise noted.) Mr. Withers is a licensed general contractor. The Department is the executive agency of the State of Florida operating pursuant to, among others, Chapter 161, Florida Statutes, and Chapter 62, Florida Administrative Code. Pursuant to Chapter 161, Florida Statutes, the Department administers the CCCL program for construction activities seaward of the CCCL. Coastal Construction Control Line Program The Department's Bureau of Beaches and Wetland Resources regulates construction and excavation activities seaward of the CCCL. The Department is responsible for determining and setting the CCCLs. The CCCL is a scientifically established line pursuant to Section 161.053, Florida Statutes. By definition, the CCCL "defines that portion of the beach-dune system subject to severe fluctuations based on a one-hundred-year storm surge, storm waves, or other predictable weather conditions." Rule 62B-33.002(13), Florida Administrative Code. Construction and excavation activity seaward of the CCCL is regulated by Section 161.053, Florida Statutes, and Rule 62B- 33, Florida Administrative Code. Mr. Withers admitted that he is aware of Department rules regarding beaches and coastal construction and is also aware that excavation seaward of the CCCL requires a permit unless it is otherwise exempt, and that he had this knowledge prior to the present case. Accessing the Pepper Project Site Under Amended Permit FR-563 Dog Island is a barrier island south of and about three miles off the coast of Franklin County, Florida. The island is approximately eight miles in length. There is no bridge to the island. The Pepper project site is on the far western end of the island. The Gulf of Mexico borders the island on the south and St. George Sound borders the island to the north. The most common way to access the Pepper site with any vehicle carrying equipment and materials, would be to use a boat or barge to a marina area (Tyson's Harbor) near the center of the island, or a private dock, and then traverse west down the middle of the island or down the beach itself, or a combination of the two. The Easy Street Easement is an easement area for a roadway running east and west through Dog Island. The parties agree that Easy Street and the Easy Street Easement are the same. The Easy Street Easement had been an unpaved roadway years before; part of the roadway was still visible in May 2001, and other parts had been covered with vegetation. There are portions of Easy Street and Easy Way east of the cul-de-sac which are visible roadways. See, e.g., Department Exhibit 13. Additionally, parts of Easy Street are seaward of the Department's CCCL (e.g., in the narrows area which is west of the cul-de-sac) and other parts are landward of the CCCL. See, e.g., Finding of Fact 29. Pursuant to its statutory duty, in 1996, the Department set the reference monuments R-158-R-160 for the CCCL on the west end of Dog Island. These monuments are in the narrows area of the island and run west to east. The CCCL is not visible on the ground. A surveyor is needed to locate the line. The alleged violation in this case was committed between R-158 and R-160, part of the narrows area. The Easy Street Easement on Dog Island runs both north and south from The Nature Conservancy cul-de-sac and then runs westerly to the west end of Dog Island. The CCCL Permits On October 21, 1999, the Department issued Permit FR-563 to Leonard Pepper, the property owner, for the construction of a single–family dwelling and for structures associated with the dwelling on the west end of Dog Island. Permit FR-563 contained Standard Permit Conditions that required in part: (1)(a) all construction or activity for which the permit was granted be carried out in accordance with the plans and specifications which were approved by the Department as a part of the permit; (1)(b) all construction or activity authorized under the permit shall be conducted using extreme care to prevent any adverse impacts to the beach and dune system; and (1)(g) existing beach and dune topography and vegetation shall not be disturbed except as expressly authorized in the permit. Permit FR-563 did not authorize the start of construction until a construction access plan to the Pepper project site was approved, in order to minimize impacts to the beach and dune system. On October 16, 2000, Amended Permit FR-563 was issued with a Notice to Proceed Withheld. The Amended Permit also contained Special Condition 1.5 which required the submittal and approval of "[a] construction access plan showing the route and timing for bringing equipment and materials to the site, in order to minimize impacts to the beach and dune system." The Department was concerned about the manner in which equipment and materials would be brought to the project site without causing further harm to the system. Amended Permit FR-563 did not expressly or implicitly authorize excavation or grading seaward of the CCCL in any area on Dog Island off of the project site and footprint of the house. In late 2000, Mr. Withers became involved with the Pepper project after Amended Permit FR-563 (with the Notice to Proceed Withheld) was issued on October 16, 2000. Part of Mr. Withers' job responsibility was to prepare and submit a construction access plan to the Department for approval. The Department does not normally require an access plan because most job sites are located in areas with established roads for ingress and egress. Here, there was no established road to and from the project site. The access plan was necessary in order to determine how Mr. Withers would transport equipment and materials to the Pepper project site on the west end of Dog Island due to the site's remote location and the absence of an established roadway to the site. Mr. Withers expected that materials and heavy equipment, including cranes, would be off-loaded at Tyson's Harbor, located approximately in the middle of Dog Island, and transported by vehicle to the project site along the access plan route. He expected to only transport pilings using the beach access route. On March 15, 2001, Mr. Withers submitted an access plan which described the route Mr. Withers would traverse by vehicle with construction equipment and materials. See Endnote 1. The Easy Street Easement starts at the east end of the island as an established roadway. Proceeding in a westerly direction, Easy Street comes to a dead-end at a cul-de-sac landward of the CCCL. The access plan authorized Mr. Withers to access the job site using part the Easy Street/Easy Street Easement (starting on the east end of the island) going north from The Nature Conservancy cul-de-sac, then heading in a westerly direction just south of the Ausley house (west of R-158 and just landward of the CCCL) and across the narrows area and continuing in a westerly direction along the northern shoreline and in southerly direction toward R-154. The access plan then authorized Mr. Withers to proceed in a westerly direction over the middle portion of the west-end of the island, then in a southerly direction toward the project site.1 The access plan showed a route both landward and seaward of the CCCL along the narrows area. See Department Exhibit 4- orange line then blue line after the orange circle on the west-end of the island. As described by Mr. McNeal of the Department, the access route is seaward, for the most part, of the CCCL from R-157 to R- 159 (running west to east) and landward of the CCCL east of R-159. The Department described the damaged area of 5,305.6 square feet (Department Exhibit 11A, insert "B") caused by Mr. Withers as east of R-159 and seaward of the CCCL and south of the access plan route. See also Finding of Fact 35. However, it appears that a portion of Easy Street, between R-159 and R-160, is seaward of the CCCL. Compare Department Exhibit 12 with Department Exhibits 4, 11A, and 13. During a pre-hearing deposition, Mr. Withers marked in pink the route he took through a portion of the narrows area which coincides with the portion of Easy Street between the approximate locations of R-159 and R-160, depicted on Department Exhibit 12. See Finding of Fact 43. (Mr. Withers had the Easy Street Easement staked prior to doing any work on Dog Island. See Findings of Fact 33-35.) The damaged area appears to coincide with this portion of Easy Street, and seaward of the CCCL. See Department Exhibit 11A. The access plan authorized Mr. Withers to drive (vehicular traffic) his equipment over the easement following the route depicted on the access plan until he arrived at the project site. See Endnote 1. The Department expected that travel along the access route would cause minimal and temporary damage or destruction to the topography, so the plan was considered acceptable. The access plan did not authorize excavation of a roadway within the route, including the narrows area, nor did it contemplate any other activity over or around a dune other than what might occur as a result of driving.2 The Department understood that Mr. Withers would be driving daily over the access plan route to the project site. The Department assumed that trucks would be used to transport equipment and materials. The Department did not differentiate among vehicles which could be used, including large trucks. On April 11, 2001, the Department issued a Notice to Proceed to Mr. Pepper to begin construction of his single-family dwelling in accordance with Amended Permit FR-563. The access plan is part of the Amended permit. Shortly after the Notice to Proceed was issued, The Nature Conservancy advised the Department of concerns it had with the access plan. As a result, on April 24, 2001, there was a meeting in Apalachicola, Florida, convened by the Department and attended by other interested governmental entities and private persons, including Mr. Withers. The purpose of the meeting was explore other possible ways and means of access by Mr. Withers to the Pepper project site.3 No resolution was reached during the meeting and the access plan previously approved by the Department remained effective. The previously issued Notice to Proceed was also in effect. The Violations Mr. Withers hired Kenneth Greenwood of Garlick Environmental Associates to perform a threatened/endangered species inspection, plant and animal, on an approximately 30-foot wide strip on the Easy Street Easement (approximately 1,800 feet) being utilized in Mr. Withers' access plan and within the narrows area. See Department Exhibit 13-yellow markings. On May 2, 2001, Mr. Greenwood performed the inspection within the easement that Mr. Withers had staked out by a land surveyor, approximately 15 feet on either side of the stakes. He found no threatened/endangered species. (The CCCL was not staked by Mr. Withers because, according to Mr. Withers, the Department did not ask him to locate the CCCL with stakes.) The access route depicted by Mr. McNeal in orange on Department Exhibit 4, which runs east of R-159, is similar to the description of the staked areas east of R-159, described by Mr. Greenwood and marked in yellow on Department Exhibit 13. See Findings of Fact 28-29. Both areas are landward of the CCCL. However, the 5,305.6 square foot damaged area is east of R-159 and is seaward of the CCCL. Mr. Greenwood described the area where he performed his investigation as being "relatively undisturbed," "relatively stable," having no vehicle tracks, and he stated that there were areas of bare sand as well as areas of "natural beach dune vegetation." He described the area as "relatively flat with some small amounts of mounding." The pictures taken by Mr. Greenwood within the staked easement on May 2, 2001, as part of his investigation, do not depict any vehicle tracks. After Mr. Greenwood completed his investigation on May 2, 2001, he observed Mr. Withers landward of the CCCL on a front-end loader and north of the cul-de-sac, proceeding west along the Easy Street Easement scraping off the top layer of soil and heading in a westward direction. Mr. Greenwood believed that the activity performed by Mr. Withers at this time was consistent with unpaved, road construction. According to Mr. Greenwood, the width of the scraped area appeared to be approximately the width of the bucket on Mr. Withers' front-end loader. Mr. Withers stated that he was doing minor grading landward of the CCCL with a John Deere 310-E front-end loader tractor when Mr. Greenwood was present on May 2, 2001. This tractor had a front bucket (approximately seven to eight feet wide) and a backhoe for excavating dirt on the back-end. Mr. Withers described the work which he performed when Mr. Greenwood was present as moving out and smoothing off the top of the sand landward of the CCCL in order for his equipment to get through. Mr. Withers also stated that he made areas in the easement seaward of the CCCL smooth by using the bottom of the bucket of his front-end loader to move sand around. Mr. Withers mentioned that he was very concerned that he needed to have the pathway he was utilizing in the access plan marked and smoothed off and fairly level. He believed the access plan authorized him to smooth off the areas on the access route. Mr. Withers stated that he had to have the access path level because he was bringing a self-propelled, 25-ton crane down the access path and they are top heavy and can get off balance, topple over, or get stuck. Mr. Withers described two types of work that he performed in the Easy Street Easement as: 1) clearing landward of the CCCL that required scooping and moving dirt, and 2) smoothing several areas seaward of the CCCL, just east of R-158 to around R- 160. An area of excavation damage seven feet seaward of the CCCL (beginning approximately 130 feet east of R-158) and an area 41 feet seaward of the CCCL (beginning at R-159, continuing east approximately 500 feet) are located within the area Mr. Withers stated he did some "smoothing off areas," again, east of R-158 and continuing east toward, but west, of R-160. Mr. Withers believed that Amended Permit FR-563 allowed him to use the Easy Street Easement in the access plan "to do . . . whatever was necessary and . . . needed to get [his] equipment, access [his] equipment down to the job site." He also admitted smoothing the areas. Mr. Withers also stated that Amended Permit FR-563 granted him permission to access the west end of Dog Island. Therefore, there was no need for him to locate the CCCL. Mr. Withers referred to the easement in the access plan as turning into a good pathway after he smoothed the areas. Mr. Withers stated that it was his "intention to gain access to the west end of Dog Island through a legal easement and an existing roadway" and that he wanted to utilize it. Mr. Withers testified "that he knew a lot of roads on Dog Island crossed seaward of the [CCCL]" in response to questioning whether he knew at the time of his performing work on the easement, whether or not the Easy Street Easement crossed seaward of the CCCL. He knew he was going to be traversing "fairly close" to the CCCL. Mr. Withers stated he did not knowingly violate the conditions of the Amended Permit. Mr. Withers was aware of the Department's permit requirements for work seaward of the CCCL when he performed his access work in the easement on Dog Island. However, Mr. Withers never had a survey done to figure out where the CCCL was located. Notice of the Alleged Violations Around May 2, 2001, the Department received a complaint that excavation was occurring seaward of the CCCL on Dog Island in the narrows area of the Easy Street Easement. On May 4, 2001, John A. Poppel, William Fokes, and Phil Sanders went to Dog Island on behalf of the Department to investigate the complaint of excavation in the narrows area seaward of the CCCL. On May 4, 2001, Mr. Poppel performed a survey of the narrows area and located the CCCL. He located monuments R-158- R-160. Department Exhibit 11. As a product of his survey, Mr. Poppel was able to depict the newly excavated roadway or pathway in relation to the CCCL. Mr. Poppel calculated that one area of damage was seven feet seaward of the CCCL and consisted of 503.8 square feet of damage and a second area of damage was 41 feet seaward of the CCCL and consisted of 5,305.6 square feet of damage. These square foot areas represent only the disturbed areas seaward of the CCCL, not the entire area between the CCCL and the Gulf of Mexico. Both areas of damage are within the area where Mr. Withers stated that he smoothed out the sand. As part of the May 4, 2001, investigation, William Fokes, an Engineer I with the Department, took photographs of the damaged areas and prepared an inspection report. Mr. Fokes' report indicates that an approximately 11-foot wide roadway or pathway had been cleared by excavation with the most seaward extent of the road being about 40 feet seaward of the CCCL. In addition, the report states that small dunes and beach vegetation had been destroyed. Mr. Fokes described the damage as excavation or grading done by some kind of machine, which cut and uprooted vegetation and pushed sand to the side as it leveled the ground. Mr. Fokes testified that the damage did not appear to be caused by merely traversing the area. Mr. Sanders, an engineer with the Department, processes CCCL permit applications and supervises Mr. Fokes, a field engineer. On May 4, 2001, Mr. Sanders observed the narrows area in question and confirmed that it looked like a "graded road" in that "[i]t appeared in the road bed that vegetation was gone and had been pushed out to the side, graded away," and that there was "excavation" seaward of the CCCL. Mr. Sanders stated that this activity did not comply with the approved access plan. On May 7, 2001, a Notice of Violation was issued to Mr. Withers for the "the unauthorized clearing and destruction of dunes and native vegetation for the purpose of constructing a roadway seaward of the coastal construction control line." Mr. Greenwood's photographs taken May 2, 2001, when compared with Mr. Fokes' photographs taken May 4, 2001, show that no discernable roadway or pathway was present landward or seaward of the CCCL in the narrows area at the time of Mr. Greenwood's inspection on May 2, 2001. This is evident when comparing Mr. Greenwood's photograph, Exhibit 15a, taken on May 2, 2001, with Department Exhibit 16g taken on May 4, 2001--the roadway or pathway present in the May 4, 2001, photo is absent in the May 2, 2001, photograph, and the vegetation has been removed from part of the area. Comparing Mr. Greenwood's photograph, Department Exhibit 15b, taken May 2, 2001, with Department Exhibits 16c and d, taken on May 4, 2001, also shows that the roadway or pathway was not present on the narrows portion of the Easy Street Easement at the time of Mr. Greenwood's inspection. The previously mentioned pictures, which were used for a comparison, were taken by two different people on separate dates, and from approximately the same locations. Also, Department Exhibit 16j was taken 250 feet east of R-159 and within the narrows area, facing east which shows clearing approximately 40 feet seaward of the CCCL. On May 14, 2001, at the request of the Department, Ken Jones, a principal engineer with Post Buckey et al., performed a damage assessment of the narrows portion of the Easy Street Easement which was seaward of the CCCL. Mr. Jones has a bachelor's degree in civil engineering and a master's degree in physical oceanography. Mr. Jones was familiar with the narrows area having been to Dog Island for recreation during the past 20 years and as a Dog Island property owner for the last three years. Mr. Jones described the narrows area as relatively flat and located between the St. George Sound to the north and the Gulf of Mexico beaches to the south. Between these two areas, the land is undulating sand and fairly consistent vegetation. At the time of Mr. Jones' damage assessment, he determined that a road had been cut through the vegetative portion of the dune of the narrows. Mr. Jones observed cut roots and a majority of the vegetation destroyed. Mr. Jones stated it appeared that the damage was caused by a vehicle with a blade on the front. The result was the road sat down in the sand approximately four to six inches. Mr. Jones stated that the work appeared to have been recent because distinct edges were still present. Mr. Jones took photographs and compiled an inspection report as part of his damage assessment. Mr. Jones testified that the damage "was pretty consistent from both landward and seaward of the [CCCL]." The pictures labeled Department Exhibits 18a1 and 18a2 depict a level pathway or roadway barren of vegetation seaward of the CCCL. Department Exhibit 18a4 is a photograph of a typical vegetated dune. Mr. Jones took this picture in order to have a general idea of what the vegetation coverage was in order to get an idea from a cost-estimating perspective. Mr. Jones's cost estimate for repairing the damage to the narrows area seaward of the CCCL, was approximately $7,500.00.4 Mr. Jones calculated the $7,500.00 by making an estimate of what it would cost to buy coastal vegetation, and by estimating what it would cost to employ laborers to hand rake the sand back into position and to plant the vegetation. Administrative Fine and Damages Jim Martinello, an environmental manager in charge of enforcement and compliance with the Bureau, used Mr. Jones' damage assessment estimate for informational purposes in assessing the damages amount for the narrows area. Mr. Martinello calculated the administrative fine and damages in accordance with Section 161.054, Florida Statues, and Rules 62B-54.002 and 62B-54.003, Florida Administrative Code. Rule 62B-54.002, Florida Administrative Code, provides that the Department shall assess fines for willful violations of, or refusing to comply with, for example, Section 161.053, Florida Statutes, and the fine should be sufficient to ensure immediate and continued compliance. In determining the actual fine within the range, the Department shall consider the offender's past violations, if any, and other aggravating or mitigating circumstances. Aggravating circumstances include prior knowledge of rules. Mitigating circumstances may be considered. Id. Mr. Withers had knowledge prior to the issuance of Amended Permit FR-563 of Department rules regarding permit requirements for construction activities seaward of the CCCL. On October 4, 1996, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible unauthorized construction seaward of the CCCL. This matter was resolved by entering into a consent order. On October 29, 1997, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible permit violation seaward of the CCCL. On November 13, 1997, Mr. Withers was issued a warning letter for possible unauthorized construction seaward of the CCCL. On October 27, 2000, Mr. Withers wrote a letter to Mr. McNeal indicating that he believed that the Easy Street Easement on Dog Island heading south from The Nature Conservancy cul-de- sac, then west to the west end of Dog Island, is landward of the CCCL and, therefore, no permit was necessary to reopen and use the easement, but he would have a surveyor establish the control line prior to work commencing. On November 7, 2000, Phil Sanders replied by letter to Mr. Withers' October 27, 2000 letter, in which Mr. Sanders reminded Mr. Withers of the pertinent rules and laws and suggested that Mr. Withers have the CCCL surveyed. On December 20, 2000, Mr. Martinello sent Mr. Withers an advisory letter informing him that the area he traversed (on July 2000) on the south route of the Easy Street Easement from the cul- de-sac on Dog Island was considered to be a dune as defined by Rule 62B-33.002, Florida Administrative Code. However, Mr. Martinello further advised that the Department did not take any action because "the traversing [did not] cause any substantial damage, it was minimal damage." In regard to the present case, it is more than a fair inference that Mr. Withers had specific knowledge of the CCCL and the Department's laws and rules, and that he knew excavation was not authorized seaward of the CCCL. The information in the prior Findings of Fact was used by the Department, and specifically Mr. Martinello, to determine that the harm to the beach resource or potential harm was major, and the administrative fine assessed was $7,500.00. However, part of Mr. Martinello's determination was predicated on Mr. Jones' assessment that the site one narrows violation was approximately 700 feet in length when, in fact, the area was approximately 500 feet in length, which explains in part the disparity between a 9,800 square foot area and the proven 5,305.6 square foot area. See Finding of Fact 78 and Endnote 4. Even the additional amount of damage of 503.8 square feet for the site two narrows area, when viewed in the aggregate, is significantly less than Mr. Jones' assessment of damages by square feet. (Mr. Martinello used the Jones' assessment as a guideline. Mr. Martinello says that the mistake did not alter his decision, although he was unaware of the mistake until the final hearing. He also says that Mr. Jones recommended a higher damage amount than the $5,000.00 assessed by the Department in its preliminary Final Order. He did--$7,500.00 for 9,800 square feet of damage.) Grossly negligent or knowing violations of statutes and Department rules regarding coastal construction seaward of the CCCL, which result "in harm to sovereignty lands seaward of mean high water or to beaches, shores, or coastal or beach-dune system(s), including animal, plant or aquatic life thereon," shall be considered in determining damages. Rule 62B-54.003(1), Florida Administrative Code. Rule 62B-54.003(2), Florida Administrative Code, provides that a damage amount greater than the minimum amounts may be assessed to ensure, immediate and continued compliance and the Department may consider, e.g., the need for restoration and the damaged ecological resource. The Department determined that the violation was knowing based on the factors mentioned above. The Department also considered the need for restoration and the damage to ecological resources and whether the amount would ensure immediate and continued compliance. Id. The Department determined that there was harm to the resource and that it was major and knowing. The Department proposed to assess the minimum damage amount of $5,000.00. On January 11, 2002, the Department entered a preliminary Final Order for the unauthorized grading and destruction of dunes and dune vegetation seaward of the control line for the purpose of constructing a roadway. The amount assessed in the Final Order was $12,500.00, $7,500.00 in administrative fines and $5,000.00 in damages, as described above. As noted, there has been harm to the beach area resource seaward of the CCCL and the Department proved the need for restoration and the damage to the ecological resource. In mitigation, Mr. Withers' construction access plan was approved by the Department. The Department knew that Mr. Withers intended to use the access route, which ran seaward of the CCCL from approximately R-157 to R-159 (except for a small portion between R-158 and R-159) in the narrows area; that Mr. Withers planned to transport equipment and materials by truck using the access route and necessarily would traverse seaward of the CCCL; and that he would continuously use the access route until the project was completed. The actual damaged area is less than originally determined by Mr. Jones, thus the need for restoration reduced. Mr. Jones, without the benefit of a survey, estimated the total cost to restore the damaged area of 9,800 square feet to be approximately $7,500.00. The total square feet of damage proven in this proceeding is 5,809.4 square feet in the narrows area and the Department is requesting $12,500.00 in fines and damages. Based on an approximate ratio of square feet and dollars needed to restore, a damage assessment in the amount of $4,500.00 is appropriate. Balancing the aggravating and mitigating circumstances, a fine of $3,500.00 is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: That a final order be issued adopting this Recommended Order; and Within 30 days of a final order being effective, Petitioners shall pay a fine of $3,500.00 and $4,500.00 in damages with the total amount of $8,000.00, to the Department of Environmental Protection. DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2003.
The Issue Whether Petitioners' application for a permit to construct a dwelling in Walton County, Florida, should be approved, pursuant to Chapter 161, Florida Statutes. In January of 1984, Respondent Department of Natural Resources provisionally denied Petitioners' application for a permit pursuant to Chapter 161, Florida Statutes, to construct a dwelling on their property in Walton County seaward of the existing coastal construction control line. Petitioners requested a hearing pursuant to Section 120.57(1), alleging that the denial of their application was unlawful on constitutional grounds and that it exceeded Respondent's discretionary powers under Chapter 161. The request for hearing was referred by Respondent to the Division of Administrative Hearings, Case No. 84-0508. Thereafter, Respondent's motion to strike those aspects of the petition alleging the unconstitutionality of the proposed denial was denied on the basis that Petitioners properly may preserve such matters for any appellate review. Thereafter, Petitioners sought to amend their petition to allege the invalidity of certain of Respondent's rules and, although such petition was granted, Petitioners were informed that any administrative determination of the invalidity of rules must be made the subject of a separate petition filed with the Director of the Division of Administrative Hearings. On June 11, 1984, Petitioners filed a petition with the Division challenging the validity of certain of Respondent's rules which were cited by Respondent as the basis for the proposed denial of Petitioners' application for a permit. The petition alleged that said rules were not appropriate to the ends specified in Section 161.053, Florida Statutes, that the effect of the rules was to establish a class of property owners who could be excluded from receiving permits to construct dwellings seaward of the coastal construction control line merely because their lots or parcels of land are larger than their neighbors or other adjacent owners, and that such rules are arbitrary and capricious as they relate to the petitioners because other property owners in Walton County had been permitted by Respondent to construct dwellings similar to hat proposed by the Petitioners beyond the coastal construction control line. DOAH Case No. 84-0508 and the case involving the rule challenge, DOAH Case No. 84-2053R, were consolidated for purposes of hearing. At the hearing, Petitioners presented the testimony of Brett Moore, a coastal engineer employed by the DNR Division of Beaches and Shores, Dennis Evans, an architect, and Petitioner Edward S. Coley. Petitioner submitted ten exhibits in evidence Respondent presented the testimony of Brett Moore, Deborah Flack, Director of the Division of Beaches and Shores, and Ralph Clark, Chief of the Bureau of Coastal Engineering and Regulation. Respondent submitted 21 exhibits in evidence. Posthearing submissions submitted by the parties in the form of Proposed Recommended Orders have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact In 1981 Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley, Petitioners' Exhibit 1, Respondent's Exhibit 1). At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20). On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984, that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area. . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised Petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16). The height of the dune line on Petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under dead covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to come extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8). Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21). Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10). Although conflicting evidence was received as to whether or not the existing structures east of petitioners' lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioners' Exhibit 1). Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2). The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4).
Findings Of Fact Marvel O. Warren and his brother Dan own a parcel of beachfront property in Walton County, south of State Road 30A (SR30A) near Seagrove Beach. Like Mr. Warren, the other intervenors own beachfront in the area, which lies in County Commission District Five. In 1954, before the Warrens built their house landward of the dunes, no road ran toward the beach from SR30A. Construction traffic to the house site beat down a path, however. In Walton County, each county commissioner is responsible, within the district he represents, for road maintenance and, on existing county right-of- way, for construction of new roads. DNR's Exhibit No., 7; Testimony of Owens. Expenditures in excess of $500 for materials beyond what the county has stockpiled require approval by the full commission, however. Testimony of Owens. FIRST ROAD BUILT Albert Gavin of Freeport was county commissioner for District Five when, in 1958 or 1959, he caused a red clay road to be built from SR30A southerly along the eastern edge of the Warren property over sand dunes and onto the beach to within 20 or 30 feet of the water's edge. During Mr. Gavin's tenure, the county owned a borrow pit and kept no records of how much clay was placed where. (No records of the quantity of clay deposited on the beach at any time were offered in evidence at the hearing.) Fishermen used the road to launch boats into the Gulf of Mexico. Except for any portion that may have extended onto sovereignty land, the road lay on county-owned right-of-way. UPLAND SEGMENT PERMANENT The clay road landward of the sand dunes leading along the eastern edge of the Warren property to SR30A (the upland road) has been consistently maintained and in existence since it was originally built. The upland road ends at the bluff line, which is practically congruent with the coastal construction control line at that point on the coast. DNR's Exhibit No. 4; Testimony of Hill. At some time between 1960 and 1969, also landward of the subsequently established coastal construction control line, a clay parking lot was built adjacent to the upland road. BEACH SEGMENTS EVANESCENT Whenever clay has been placed on the beach, seaward of the crest of the landwardmost sand dune, the gulf has washed it away. Many clay roads at the site did not last the summer. Virtually no clay deposit has lasted longer than a full year. One attempt after another to construct a clay road seaward of the sand dunes (the beach segment) has failed. Witnesses testified that the sun bleached the red clay and that wind covered it with white sand but wave action has been the clay's principal nemesis. When Harold C. Lucas was commissioner for District Five from March, 1968, to January, 1969, no clay was deposited on the beach and there was no beach segment. Except for three months in 1975 when Van Ness R. Butler, Jr., of Grayton Beach, served as District Five's county commissioner, Conley Martin of Portland represented the district from 1969 to 1976. As county commissioners, both of these men directed clay to be placed on the beach at various times. COASTAL CONSTRUCTION CONTROL LINE ESTABLISHED A beach segment was in existence at the time the coastal construction control line was established, and recorded, on June 4, 1975, although the beach segment that then existed went straight from the foot of the sand dune toward the edge of the gulf, instead of veering east like the new; longer beach segment built last September. THEN EXISTING ROAD DESTROYED, REPLACED In September of 1975, Hurricane Eloise removed not only the beach segment of the road but much of the beach, including the dunes themselves. As road foreman for District Five at the time, Robert N. Budreau used a road grader and other equipment to fill a large hole between the Warren house and the sand dune and to cover over broken toilets and other debris with a mixture of sand and yellow clay. After the filling, a roadway was constructed with the same sand and clay mix, extending about 25 feet seaward of the dunes along a line perpendicular to the gulf shore. REPLACEMENT ROAD RECLAIMED BY ELEMENTS In 1976, Freddie M. Bishop was elected county commissioner for District Five. After the beach segment built by Mr. Budreau washed out, at least one constituent, Gene Wesley, asked Mr. Bishop to replace it, but Mr. Bishop broke with sisyphean tradition, and declined to place any clay on the beach, or otherwise attempt to reconstruct or replace the beach segment. By the time petitioner McLean succeeded Bishop as commissioner for District Five, the beach segment had been completely obliterated. The end of the upland road continued, however, to be one of some half-dozen points of access for four-wheel drive vehicles to Walton County's gulf beaches. Commissioner Bishop did cause two truckloads of oyster shells to be deposited on the "hump" of the landward sea dune, on or near the bluff line. NEW BEACH SEGMENT In response to constituents' requests, Mr. McLean ordered a new road built. He caused clay and gravel to be placed and compacted seaward of the coastal construction control line by county workmen and machinery, including some "borrowed" for the purpose from colleagues on the Walton County Commission. Built without a DNR permit in September of 1981, this new beach segment extends 180 feet seaward of the coastal construction control line and takes an unprecedented veer to the east. The only preexisting foundation for the new beach segment was the beach itself. Like Commissioner Anderson, Commissioner W. F. Miles "lent" county trucks he had charge of to respondent McLean, but Mr. Miles did not know in advance that Mr. McLean intended to use them to build a road on the beach. Commissioners Matthews, Miles, and Owens were aware of the existence of the coastal construction control line in Walton County and, in a general way, of DNR permitting requirements and procedures, including the fact that the County Commission itself acts on certain coastal construction applications. Commissioners Anderson and McLean did not testify on these matters. DNR has issued no permit for anything like the new beach segment at any time since the coastal construction control line wad established. DNR has no record of any inquiry concerning the new beach segment by or on behalf of petitioners McLean or Walton County, before the new beach segment was built. There was no showing that Mr. McLean sought legal advice before ordering construction of the new beach segment. Paragraphs 1 through 8 of DNR's "Final Order," as amended at the final hearing and set forth above, have been established by stipulation of the parties. The hearing officer has had the benefit of posthearing submissions, including proposed findings of fact, filed by all parties. Proposed findings have been adopted, in substance, where relevant, except when unsupported by appropriate evidence.
Recommendation Upon consideration of the following, it is RECOMMENDED: That DNR order petitioner Walton County to remove the new beach segment seaward of the Walton County Coastal Construction Control Line within 30 days of entry of a final order. That DNR remove the new beach segment seaward of the Walton County Coastal Construction Control Line itself, in the event of petitioner Walton County's noncompliance with the final order; and take steps to recover the cost from petitioner Walton County. That DNR impose no civil or administrative fine against petitioner W. L. "Billy" McLean. DONE AND ENTERED this 30th day of July, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982. COPIES FURNISHED: George Ralph Miller, Esquire Post Office Box 687 DeFuniak Springs, Florida 32433 W. Dennis Brannon, Esquire Post Office Box 1503 Fort Walton Beach, Florida 32549 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 M. Stephen Turner, Esquire Post Office Drawer 591 Tallahassee, Florida 32303 Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
Findings Of Fact In 1981, Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley Petitioners' Exhibit 1, Respondent's Exhibit 1) At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December, 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20) On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984 that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area . . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16) The height of the dune line on petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under deed covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to some extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8) Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21) Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10) Although conflicting evidence was received as to whether or not the existing structures east of Petitioners lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioner's Exhibit 1) Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2) The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4.)
The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
Findings Of Fact Because of a 1984 Thanksgiving Day storm which inflicted damage in coastal areas, Barry Manson-Hing, an area engineer employed by the Department, issued emergency coastal construction permits from a temporary office in the Vero Beach Administration Building. On December 3, 1984, Respondent sought an emergency permit to allow him to place sand and sand-filled bags on his coastal property at 3755 Ocean Drive, Vero Beach, Florida. Respondent asked Mr. Manson-Hing if he could use sand from the beach to restore eroded areas. Mr. Manson-Hing said he could not, and told him that sand would have to be obtained from an upland source. Respondent replied that he had an available source of upland sand and would haul it by truck to the beach site. He also mentioned that he would remove an existing pine tree to allow vehicular access. On the next day, December 4, 1984, Mr. Manson-Hing issued an emergency coastal construction permit, #1R-127E, to Respondent. The permit allowed Respondent to place 1,500 cubic yards of sand fill material to restore eroded beach and dune areas at the site, and also permitted him to temporarily place sand-filled bags on filter cloth. In capital letters, the permit warned, "SCRAPING OF THE BEACH IS PROHIBITED." (Dept. Exhibit 4) On December 5, 1984, Lt. Raymond Barker of the Vero Beach Police Department, observed beach scraping activities being conducted on Respondent's coastal property. Respondent was present on the site. Beach sand seaward of the Coastal Construction Control Line for Indian River County had been scraped and deposited at the face of the sand dune. The removal of the sand created depressions in the beach area seaward of the Coastal Construction Control Line. Lt. Barker ordered Respondent to cease the activity until it could be determined he had the required authorization. Respondent complied with Lt. Barker's order. The scraping of the beach and removal of sand below the coastal construction control line was accomplished without a permit from the Department. On July 17, 1985, the Department entered its "Final Order" assessing Respondent a $500 fine for unauthorized coastal construction activities in violation of Section 161.054, Florida Statutes (1985). Respondent requested a hearing; resulting in this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department assess, impose, and collect an administrative fine of $500, to be paid within 30 days of final agency action. DONE AND ORDERED this 20th day of June, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings the 20th day of June, 1986.
The Issue The issue to be determined in these consolidated cases is whether the U.S. Army Corps of Engineers (“Corps”) and the City of Sarasota (“City”) (sometimes referred to as “the Applicants”) are entitled to the proposed joint coastal permit, public easement, and sovereign submerged lands use authorization (referred to collectively as “the Permit”) from the Department of Environmental Protection (“DEP”) and the Trustees of the Internal Improvement Trust Fund to dredge sand from Big Sarasota Pass and its ebb shoal and place the sand on the shoreline of Lido Key.
Findings Of Fact The Parties Petitioner Siesta Key Association, Inc. is a Florida Not for Profit Corporation, with its principal place of business in Sarasota. The organization has approximately 1,425 members and represents the interests of those who use and enjoy Siesta Key’s beach and waters. A substantial number of its members have substantial interests in the use of the beach and adjacent waters. Petitioner Michael S. Holderness is a resident and property owner on Siesta Key. Mr. Holderness has substantial interests in the protection of his property and the use of the beach at Siesta Key and adjacent waters. Petitioner Save Our Siesta Sands 2, Inc. is a Florida Not For Profit Corporation, with its principal place of business in Sarasota. The organization has over 700 members and was formed in opposition to the current dredging proposal. A substantial number of its members have substantial interests in the use of the beach at Siesta Key and adjacent waters. Petitioners Peter van Roekens and Diane Erne are residents and property owners on Siesta Key. They have substantial interests in the protection of their properties and the use of the beach at Siesta Key and adjacent waters. Respondent City of Sarasota is an incorporated municipality in Sarasota County. It is a co-applicant for the Permit. Respondent Corps is the federal agency responsible for the Lido Key Hurricane and Storm Damage Reduction Project first authorized by Congress in 1970. Under this Project, the Corps has conducted periodic maintenance, inlet dredging, surveys, and bypassing to protect Lido Key’s shoreline. The Corps is a co-applicant for the Permit. Respondent DEP is the Florida agency having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of chapters 161, 373, and 403, Florida Statutes, and rules promulgated thereunder in Titles 62 and 62B of the Florida Administrative Code, which pertain to the permitting of construction activities in the coastal zone and in surface waters of the state. DEP acts as staff to the Board of Trustees of the Internal Improvement Trust Fund. Intervenor Lido Key Residents Association is a Florida Not for Profit Corporation incorporated in 1980 and with its principal place of business in Sarasota. The organization represents the interests of regular users of Lido Key Beach. A substantial number of its members have substantial interests in the use of the beach at Lido Key and adjacent waters. The Project Area Lido Key is a 2.6-mile-long, manmade barrier island constructed in the 1920s, located on the Gulf of Mexico and within the City of Sarasota. North of Lido Key is New Pass, a navigation channel that separates Lido Key from Longboat Key. South of Lido Key is Big Sarasota Pass and the ebb shoal of the pass. Further south is Siesta Key, a natural barrier island. Sediment Transport In the project area, sand generally drifts along the various shorelines from north to south. There can be sand drift to the north during some storm events, currents, and tides, but the net sand drift is to the south. It is sometimes called “downdrift.” Whatever downdrift conditions existed 100 years ago, they were substantially modified by the creation of Lido Key. For decades, the shoreline of Lido Key has been eroding. Since 1964, the Corps has periodically dredged New Pass to renourish the shoreline of Lido Key. The City has also used offshore sand to renourish Lido Key. These renourishment projects have not prevented relatively rapid erosion of the shoreline. A 2.4-mile-long segment of the shoreline of Lido Key has been designated by DEP as “critically eroded.” The Big Sarasota Pass ebb shoal has been growing and now has a volume of about 23 million cubic yards (“cy”) of sand. The growth of the ebb shoal is attributable to the renourishment projects that have placed over a million cy of sand on Lido Key and Longboat Key. The growth of the ebb shoal has likely been a factor in the southward migration of the main ebb channel of Big Sarasota Pass, closer to the northern shoreline of Siesta Key. Most of the west-facing shoreline at Siesta Key has experienced significant accretion. It is unusually wide for a Florida beach. It was named the best (“#1”) beach in the United States by “Dr. Beach,” Dr. Steven Leatherman, for 2011 and 2017. The Project The federally-authorized Lido Key Hurricane and Storm Damage Reduction Project includes the use of New Pass as a supplemental sand source for renourishing Lido Key. However, the use of New Pass is the subject of separate DEP permitting. The project at issue in this proceeding only involves the renourishment of Lido Key and is named “Lido Key Beach Renourishment and Groins.” The Applicants conducted a study of the ebb shoal to determine whether it could be used as a permanent sand source to renourish Lido Key. The study consisted of an environmental feasibility study and an inlet management program for Big Sarasota Pass and New Pass with alternative solutions. The application for the Permit was a response to this study. The proposed sand source or borrow areas are three dredge “cuts.” Cuts B and D are within the ebb shoal. Cut C extends through the ebb shoal and partly into Big Sarasota Pass. Cut C generally follows an existing “flood marginal channel.” The sand from the cuts would be placed along the central and southern 1.6 miles of Lido Key to fill a beach “template.” The design width of the renourished beach would be 80 feet. The initial placement would be wider than 80 feet to account for erosion. The Permit would have a duration of 15 years. The Applicants’ intent is to initially place 950,000 cy of sand on Lido Key. After the initial renourishment, sand would be dredged from one or more of the three designated cuts about every five years to replace the sand that eroded away, and would probably be on the scale of about 500,000 cy. The numerical modeling of the proposed project assumed the removal of up to 1.3 million cy of sand from the three cuts. One of DEP’s witnesses testified that the Permit authorizes the removal of up to 1.732 million cy of sand. The record does not support that testimony. The Applicants did not model the effects of dredging 1.732 million cy of sand from the ebb shoal and pass. There is insufficient evidence in the record to support an authorization to remove more than 1.3 million cy of sand. Although the total volume of sand in the three cuts is 1.732 million cy, it is reasonable for the dimensions of the cuts and the proposed easement that is based on these dimensions to contain more material than is authorized to be removed, so as to provide a margin to account for less-than-perfect dredging operations. Therefore, it is found that the Permit authorizes up to 1.3 million cy of sand to be removed from the designated borrow areas. The findings of fact and conclusions of law in this Recommended Order that address the expected impacts of the proposed project are based on this finding. The Permit also authorizes the construction of two rubble mound groins at the southern end of Lido Key to stabilize the beach and lengthen the time between renourishment events. The groins are designed to be semi-permeable so that they “leak” sand. There are no seagrasses in the renourishment area and mostly scattered and thin patches of seagrass near the dredge cuts. The Permit requires mitigation for the potential direct impacts to 1.68 acres of seagrasses. To offset these impacts, the Applicants propose to create 2.9 acres of seagrass habitat. The seagrass habitat would be established at the Rookery at Perico Seagrass Mitigation Basin in Manatee County, about 16 miles north of Big Sarasota Pass. The Permit incorporates the recommendations of the Florida Fish and Wildlife Conservation Commission regarding protections for turtles, nesting shorebirds, and manatees. The Permit requires regular monitoring to assess the effects of the project, and requires appropriate modifications if the project does not meet performance expectations. Project Engineering The Corps’ engineering analysis involved three elements: evaluating the historical context and the human influences on the regional system, developing a sediment budget, and using numerical modeling to analyze erosion and accretion trends near the project site. A principal objective of the engineering design for the borrow areas, sand placement, and groins was to avoid adverse effects on downdrift, especially downdrift to Siesta Key. The Corps developed a sediment budget for the “no action” and post-project scenarios. A sediment budget is a tool used to account for the sediment entering and leaving a geographic study area. The sediment budgets developed by the Corps are based on sound science and they are reliable for the purposes for which they were used. The post-project sediment budget shows there would be minimal or no loss of sediment transport to Siesta Key. Petitioners did not prepare a sediment budget to support their theory of adverse impact to Siesta Key. Petitioners object to the engineering materials in the Permit application because they were not certified by a Florida registered professional engineer. DEP does not require a Florida professional engineer’s certification for engineering work submitted by the Corps. As explained in the Conclusions of Law, Florida cannot impose licensing conditions on federal engineers. Ebb Shoal Equilibrium Petitioners’ witness, Dr. Walton, developed a formula to estimate ebb shoal volume equilibrium, or the size that an ebb shoal will tend to reach and maintain, taking into account bathymetry, wave energy, tides, adjacent shorelines, and related factors. In an article entitled “Use of Outer Bars of Inlets as Sources of Beach Nourishment Material,” Dr. Walton calculated the ebb shoal equilibrium volume for the Big Sarasota Pass ebb shoal as between 6 and 10 million cy of sand. The ebb shoal has been growing and is now about 23 million cy of sand, which is well in excess of its probable equilibrium volume. The volume of sand proposed to be removed from the ebb shoal is only about six percent of the overall ebb shoal volume. Dr. Walton’s study of the use of ebb shoals as sand sources for renourishment projects supports the efficacy of the proposed project. Modeling Morphological Trends The Corps used a combined hydrodynamic and sediment transport computer model called the Coastal Modeling System, Version 4 (“CMS”) to analyze the probable effects of the proposed project. The CMS model was specifically developed to represent tidal inlet processes. It has been used by the Corps to analyze a number of coastal projects. Dr. Walton opined that the CMS model was inappropriate for analyzing this project because it is a two-dimensional model that is incapable of accounting for all types of currents and waves. However, a two-dimensional model is appropriate for a shallow and well-mixed system like Big Sarasota Pass. Dr. Walton’s lack of experience with the CMS model and with any three-dimensional sediment transport model reduced the weight of his testimony on this point. Petitioners contend that the CMS model was not properly calibrated or verified. Calibration involves adjustments to a model so that its predictions are in line with known conditions. Verification is the test of a model’s ability to predict a different set of known conditions. For calibrating the hydrodynamic portion of the model, the Corps used measurements of water levels and currents collected in 2006. The model showed a 90-percent correlation with water surface elevation and 87-percent correlation to velocity. Dr. Walton believes a model should exhibit a 95-percent correlation for calibration. However, that opinion is not generally accepted in the modeling community. Model verification, as described by Dr. Walton, is generally desirable for all types of modeling, but not always practical for some types of modeling. A second set of field data is not always available or practical to produce for a verification step. In this case, there was only one set of sea floor elevations available for verification of the CMS model. It is the practice of DEP in the permitting process to accept and consider sediment transport modeling results that have not been verified in the manner described by Dr. Walton. The Corps described a second calibration of the CMS model, or “test of model skill,” as an evaluation of how well the CMS model’s sediment transport predictions (morphological changes) compared to Light Detection and Ranging (“LIDAR”) data collected in 2004. The CMS model successfully reproduced the patterns of erosion and sediment deposition within the area of focus. Petitioners’ expert, Dr. Luther, testified that, over the model domain, the CMS model predictions differed substantially from LIDAR data and believes the discrepancies between the model’s predictions and the LIDAR data make the model’s predictions unreliable. Modeling sediment transport is a relatively new tool for evaluating the potential impacts of a beach renourishment project. Renourishment projects have been planned, permitted, and carried out for decades without the use of sediment transport models. Now, modeling is being used to add information to the decision-making process. The modeling does not replace other information, such as historical data, surveys, and sediment budgets, which were heretofore used without modeling to make permit decisions. Sediment transport is a complex process involving many highly variable influences. It is difficult to predict where all the grains of sand will go. Sediment transport modeling has not advanced to the point which allows it to predict with precision the topography of the sea floor at thousands of LIDAR points. However, the CMS model is still useful to coastal engineers for describing expected trends of accretion and erosion in areas of interest. This was demonstrated by the model’s accurate replication of known features of the Big Sarasota Pass and ebb shoal, such as the flood marginal channels and the bypassing bars. The CMS model’s ability to predict morphological trends assisted the Applicants and DEP to compare the expected impacts associated with alternative borrow locations on the ebb shoal and pass, wave characteristics, and sediment transport pathways. Together with other data and analyses, the results of the CMS model support a finding that the proposed dredging and renourishment would not cause significant adverse impacts. The Applicants extensively analyzed sediment transport pathways and the effects of alternative borrow areas on sediment transport to Siesta Key. Petitioners’ hypothesis is not supported by engineering studies of equivalent weight. The more persuasive evidence indicates that sediment transport to downdrift beaches would not be reduced and might even be increased because sediment now locked in the ebb shoal would reenter the sediment transport pathways. In addition, the proposed dredging may halt the southward migration of the main ebb channel of Big Sarasota Pass, and thereby reduce erosive forces on the interior shoreline of north Siesta Key. Wave Energy Petitioners assert that the proposed dredging would result in increased wave energy on Siesta Key because the diminished ebb shoal would no longer serve as a natural buffer against wave energy from storms. They conducted no studies or calculations to support this assertion. Because the proposed dredging would remove a small percentage of the total ebb shoal volume, the ebb shoal would remain a protective barrier for Siesta Key. Wave energy reaching the shorelines along Big Sarasota Pass or within Sarasota Bay would continue to be substantially reduced by the ebb shoal. The predicted increase in wave energy that would occur as a result of the project could increase the choppiness of waters, but would not materially increase the potential for wave-related erosion. Petitioners conducted no studies and made no calculations of their own to support their allegation that the project would significantly increase the potential for damage to property or structures on Siesta Key due to increased wave energy. To the extent that Petitioners’ expert coastal engineer opined otherwise, it was an educated guess and insufficient to rebut the Applicants’ prima facie case on the subject of wave energy. Groins Petitioners contend that the two proposed groins would adversely impact the beaches of Siesta Key because the groins would capture sand that would otherwise drift south and benefit Siesta Key. However, the preponderance of the evidence shows the groins would not extend into or obstruct the sand “stream” waterward of the renourished beach. The historic use of groins to capture downdrift resulted in adverse impacts to adjacent beaches. However, the use of groins in conjunction with beach renourishment to stabilize a renourished beach and without obstructing downdrift is an accepted practice in coastal engineering. The proposed groins would not obstruct longshore sediment transport and, therefore, would not interfere with downdrift to Siesta Key. Public Interest - General Section 373.414(1) requires an applicant to provide reasonable assurance that state water quality standards will not be violated, and reasonable assurance that a proposed activity is not contrary to the public interest. However, if the proposed activity significantly degrades or is within an Outstanding Florida Water (“OFW”), the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest. Sarasota Bay, including Big Sarasota Pass and portions of Lido Key, have been designated as an OFW. Therefore, the Applicants must demonstrate that the proposed project is clearly in the public interest. In determining whether an activity is clearly in the public interest, section 373.414(1)(a) requires DEP to consider and balance seven factors: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of section 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. DEP determined that the project is clearly in the public interest because it would improve public safety by providing protection to Lido Key upland structures from storm damage and flooding, protect and enhance wildlife habitat, and provide beach-related recreational opportunities; and it would create these public benefits without causing adverse impacts. Public Interest - Safety Petitioners contend that the proposed project would adversely affect public health, safety, welfare, or the property of others because it would interrupt downdrift and substantially reduce the storm protection provided by the ebb shoal. As found above, the preponderance of the evidence does not support this contention. Public Interest - Conservation of Fish and Wildlife Petitioners contend that the proposed project would adversely affect the conservation of fish and wildlife, including endangered or threatened species. The Permit application materials provided evidence that the proposed project would have no effects, or only minimal temporary effects, on water quality, temperature, salinity, nutrients, turbidity, habitat, and other environmental factors. That was sufficient as a prima facie showing that the project would not adversely affect the conservation of fish and wildlife because, if environmental factors are not changed, it logically follows that there should be no adverse impacts to fish and wildlife. Therefore, as explained in the Conclusions of Law, the burden shifted to Petitioners to present evidence to show that adverse effects to fish and wildlife would occur. It was not enough for Petitioners to simply contend that certain fish species were not adequately addressed in the application materials. With the exception of Dr. Gilmore’s field investigation related to the spotted seatrout, Petitioners conducted no studies or field work of their own to support their allegations of adverse impacts to fish and wildlife. Dr. Gilmore discovered that spotted seatrout were spawning in Big Sarasota Pass. Such spawning sites are not common, are used repeatedly, and are important to the conservation of the species. Spotted seatrout spawn from April through September. The record does not show that the Florida Fish and Wildlife Conservation Commission, the U.S. Fish and Wildlife Service, or the National Marine Fisheries Service were aware that Big Sarasota Pass was a spawning area for spotted seatrout, or considered this fact when commenting on the project. The spotted seatrout is not a threatened or endangered species, but DEP is required to consider and prevent adverse impacts to non-listed fish species, as well as recreational fishing and marine productivity. If the proposed project would destroy a spotted seatrout spawning area, that is a strong negative in the balancing of public interest factors. The Applicants do not propose mitigation for adverse impacts to spotted seatrout spawning. Seagrass sites close to the spawning area are used by post-larval spotted seatrout for refuge. The likely seagrass nursery sites for seatrout spawning in Big Sarasota Pass are depicted in SOSS2 Exhibit 77. The proposed seagrass mitigation at the Perico Rookery Seagrass Mitigation Basin, over 16 miles away, would not offset a loss of this refuge function because it is not suitable as a refuge for post-larval spotted seatrout. The spawning season for spotted seatrout occurs during the same months as turtle nesting season, and DEP argued that the turtle protection conditions in the Permit to limit lighting and prohibit nighttime work, would also prevent adverse impacts to the spotted seatrout. However, spotted seatrout spawning is also threatened by turbidity and sedimentation in the spawning area and adjacent seagrasses. The spotted seatrout spawning area is in the area where dredge Cut B is located. If Cut B were dredged during the spawning season, it would likely disrupt or destroy the spawning site. Reasonable assurance that the proposed project would not disrupt or destroy the spawning site requires that Cut B not be dredged during the spawning season. Seagrasses that are likely to provide refuge to post- larval seatrout are near the most eastern 1,200 feet of Cut C. Reasonable assurance that the proposed project would not disrupt or destroy the refuge function requires that the most eastern 1,200 feet of cut C not be dredged during the spawning season. In summary, the proposed project would adversely affect the conservation of fish and wildlife unless dredging was restricted during the spotted seatrout spawning season, as described above. Public Interest – Navigation, Flow of Water, and Erosion Petitioners contend that the proposed project would adversely affect navigation, the flow of water, and would cause harmful erosion to Siesta Key, but Petitioners conducted no studies or calculations to support this assertion. The preponderance of the evidence shows that no such adverse impacts would occur. Public Interest – Recreational Values Petitioners contend that the proposed project would adversely affect fisheries and associated recreation because of harm to spotted seatrout and other fish species. As found above, the preponderance of the evidence shows the project would adversely affect the spotted seatrout, an important recreational fish species, unless dredging was restricted during the spawning season. Public Interest - Value of Functions Petitioners contend that the proposed project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed project because dynamic inlet system would be disrupted. As found above, the preponderance of the evidence shows the project would not adversely affect the coastal system. However, it would adversely affect the spotted seatrout spawning and refuge functions provided by Big Sarasota Pass unless dredging was restricted during the spawning season. Mitigation If a balancing of the public interest factors in section 373.414(1)(a) results in a determination that a proposed project is not in the public interest, section 373.414(1)(b) provides that DEP must consider mitigation offered to offset the adverse impacts. Although the Perico Rookery at Seagrass Mitigation Basin is within the OFW and the same drainage basin, it does not fully offset the adverse impacts likely to be caused by the proposed project. The mitigation would not offset the loss of spotted seatrout spawning and refuge functions. The mitigation for the loss of spotted seatrout spawning and refuge functions is unnecessary if the impacts are avoided by restricting dredging during the spawning season as described above. Design Modifications Petitioners contend that the Applicants did not evaluate the alternative of taking sand from offshore borrow areas for the renourishment. The record shows otherwise. Furthermore, as explained in the Conclusions of Law, the Applicants were not required to address design modifications other than alternative locations for taking sand from the ebb shoal and Big Sarasota Pass. Consistency with the Coastal Zone Management Program Petitioners contend that DEP failed to properly review the Permit for consistency with the Florida Coastal Zone Management Program (“FCZMP”), because DEP failed to obtain an affirmative statement from Sarasota County that the proposed project is consistent with the Sarasota County Comprehensive Plan. The State Clearinghouse is an office within DEP that coordinates the review of coastal permit applications by numerous agencies for consistency with the FCZMP. It is the practice of the State Clearinghouse to treat a lack of comment by an agency as a determination of consistency by the agency. With respect to this particular project, the State Clearinghouse provided a copy of the joint coastal permit application to the Southwest Florida Regional Planning Council (“SWFRPC”) for comments regarding consistency with local government comprehensive plans. SWFRPC submitted no comments. In a letter dated June 26, 2015, the State Clearinghouse reported to the Corps that “at this stage, the proposed federal action is consistent with the [FCZMP].” In a written “peer review” of the proposed project produced by the Sarasota Environmental Planning Department in October 2015, some concerns were expressed, but no mention was made of inconsistency with the Sarasota County Comprehensive Plan. Sarasota County sent a letter to DEP, dated August 24, 2016, in which it requested that the Corps prepare an Environmental Impact Statement (“EIS”) for the project. Sarasota County did not indicate in its letter to DEP that the proposed project is inconsistent with any policy of the Sarasota County Comprehensive Plan. Petitioners assert that the proposed project would be inconsistent with an environmental policy of the Sarasota County Comprehensive Plan that Petitioners interpret as prohibiting the proposed dredging. The record contains no evidence that Sarasota County believes the proposed project is inconsistent with this particular policy or any other policy of its comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP issue a final order approving the proposed agency actions, but only if the joint coastal permit is modified to prohibit dredging operations in Cut B and the most eastern 1,200 feet of Cut C during April through September. If this modification is not made, it is recommended that the proposed agency actions be DENIED; and The joint coastal permit be modified to clarify that it authorizes the removal of up to 1.3 million cy of sand. DONE AND ENTERED this 8th day of May, 2018, 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 8th day of May, 2018. COPIES FURNISHED: Kirk Sanders White, Esquire Florida Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Alexandrea Davis Shaw, Esquire City of Sarasota Room 100A 1565 1st Street Sarasota, Florida 34236 John R. Herin, Jr., Esquire Gray Robinson, P.A. Suite 1000 401 East Las Olas Boulevard Fort Lauderdale, Florida 33301 (eServed) Eric P. Summa U.S. Army Corps of Engineers Post Office Box 4970 Jacksonville, Florida 32232 Martha Collins, Esquire Collins Law Group 1110 North Florida Avenue Tampa, Florida 33602 (eServed) Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 (eServed) Richard Green, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Christopher Lambert, Esquire United States Army Corps of Engineers 701 San Marco Boulevard Jacksonville, Florida 32207 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection 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) 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)
