The Issue The issue in the case is whether the Town of Beverly Beach's Comprehensive Plan Amendment 03-1, initially adopted by Ordinance 2003-ORD-6 and amended by Ordinance 2004-ORD-6, is "in compliance," as required by Section 163.3184, Florida Statutes (2004).
Findings Of Fact The Department is the state land planning agency and has authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (2004). One of the Department's duties under the Act is to review proposed amendments to local government comprehensive plans to determine whether the amendments are in compliance with the Act. The Town of Beverly Beach is a small municipality in Flagler County, Florida, and has the duty and authority to adopt a local government comprehensive plan pursuant to Chapter 163, Florida Statutes (2004), and to amend the plan from time to time. In June 2002, the Town proposed to amend its Future Land Use Map (FLUM) to change some of the land uses within the 37-acre Shelter Cove Planned Unit Development (PUD). The Shelter Cove PUD was the subject of an earlier lawsuit in the circuit court for Flagler County brought by the owners and developers of the property after the Town denied their PUD application. In 2002, the court entered judgment against the Town and ordered the Town to approve the PUD application. In its order, the court included a statement that the Shelter Cove PUD was consistent with the Beverly Beach Comprehensive Plan. The purpose of the plan amendment proposed in June 2002 was to re-designate 14.25 acres from Conservation/Spoil Area to Low Density Residential, 0.75 acres of Conservation/Spoil Area to Medium Density Residential, and 8.25 acres of Low Density Residential to Medium Density Residential. The proposed amendment was transmitted to the Department for compliance review. In its July 2003 ORC Report, the Department set forth four objections to the proposed amendment: 1) increased density in a Coastal High Hazard Area; 2) no traffic impact analysis regarding emergency evacuation; 3) inadequate potable water and sanitary sewer services; and 4) unsuitability for development because of saltwater marsh and potential use by threatened and endangered animal species. The Town made changes to the proposed amendment to address the Department's objections and adopted Plan Amendment 03-1 on October 6, 2003. One significant change made by the Town was to reduce the size of the land affected by the amendment from 23.25 acres to 14.5 acres. The stated purpose of the revised amendment was to deal exclusively with the spoil areas within the Shelter Cove PUD; to convert them from Conservation to Low Density Residential. The Department was not satisfied with the changes made by the Town and on November 17, 2003, it issued a Statement of Intent To Find The Comprehensive Plan Amendment Not In Compliance. This statement did not reassert the four objections of the ORC Report, but identified only two reasons for its determination that Plan Amendment 03-1 was not in compliance: 1) increased density in a Coastal High Hazard Area that would increase evacuation clearance times and 2) inadequate sanitary sewer facilities based on the denial of the utility's permit renewal by the Department of Environmental Protection (DEP). The Department recommended remedial actions that would bring Plan Amendment 03-1 into compliance. Thereafter, the Department and Town entered into a compliance agreement to identify remedial actions by the Town that would bring the plan amendment into compliance. Pursuant to the agreement, the Town adopted remedial measures in Ordinance 2004-ORD-6 (the Remedial Ordinance) that caused the Department to determine that the plan amendment was in compliance. The Remedial Ordinance (with additions and deletions as indicated in the ordinance) states in pertinent part: Limiting Density on the 14.5-acre amendment site & Hurricane Evacuation Plan Future Land Use Element: contains policies controlling the density and intensity of development (both residential and non- residential) in the Town of Beverly Beach. Policy A.1.1.9 The Low Density Residential (LDR) land use (up to 5 dwelling units/acre) shall be applied to 14.5 acres of upland spoil sites in the Shelter Cove development as shown in Exhibit A, not to exceed a total gross density of 28 residential units. In addition to the provisions described in Policy 1.1.4, the following provisions shall apply to the Shelter Cove Development: Residential land use for the Shelter Cove Planned Unit Development(PUD)shall be limited to a maximum of 115 dwelling units. The Town of Beverly Beach shall not issue a permit or certificate of occupancy until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code (see Policy A.1.1.1). * * * Policy A.1.1.10 No later than December 2005, Beverly Beach shall revise its comprehensive plan to update the goals, objectives and policies and future land use map series and transmit such revisions to the Department of Community Affairs. The updated plan shall reflect changes to Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, since the plan went into effect in 1991. This revision shall be based on a planning period through Year 2015, with current and forecasted conditions and satisfy data and analysis requirements. * * * Revise policies under Objective D.2.1, Beverly Beach Comprehensive Plan regarding the provision of potable water and sanitary sewer Public Infrastructure/Facilities Element: refers to the protection of water quality by specific policies that require deficiencies in wastewater treatment facilities be corrected in accordance with DEP requirements. Objective D.2.1 By December 31, 1992 December 31, 2005, the Town shall require that existing deficiencies in the wastewater treatment package plants owned by Surfside Utilities operated by Ocean City Utilities be corrected in accordance with FDER Department of Environmental Protection [DEP] requirements. Policy D.2.1.1 As the Town does not own the wastewater treatment plants nor has operational control over the same, the Town shall formalize a coordination committee to include the owner/operator of Surfside Utilities Ocean City Utilities, the members of the Town Commission, members of the Flagler County Board of County Commissioners or their appointee, members of the City of Flagler Beach Commission or their appointee, and FDER the Department of Environmental Protection [DEP] and any other identified stakeholder in the Town. Policy D.2.1.2 The Town shall use the coordination committee to address the deficiencies in the wastewater plants, to set priorities for upgrading and replacing components of the plants, and to request FDER the Department of Environmental Protection [DEP]to increase and enforce their regulations requiring periodic monitoring and maintenance of package treatment plants. Policy D.1.2.3 The Town shall use the coordination committee to investigate the feasibility of assuming operational responsibility of the wastewater treatment system by another entity. Applying the five dwelling units per acre density allowed in the Low Density Residential category to 14.5 acres would generate 72.5 units. However, as indicated above, the Remedial Ordinance also restricted the total allowable dwelling units in the 14.5 acres to 28 units. The 28 units coincide with the site plan for the Shelter Cove PUD that was the subject of the circuit court judgment. The site plan called for 28 single- family lots in the former spoil areas. Charles Osbourne, Bernard Knight, and Mary Jo Knight were residents of the Town of Beverly Beach when the Town adopted Plan Amendment 03-1. They intervened against the Town in the original proceedings initiated by the Department. Following the Department's determination that the plan amendment had been brought into compliance by the Remedial Ordinance, they filed an Amended Petition to Intervene and were realigned as the Petitioners. On some date between the filing of their original petition in this case and the date of the final hearing, Petitioners Bernard Knight and Mary Jo Knight moved out of Beverly Beach. They are no longer residents of the Town. In their Amended Petition to Intervene, the Petitioners assert that the Remedial Ordinance did not resolve all the problems originally identified by the Department's ORC Report, and Plan Amendment 03-1 is still not in compliance. The Petitioners' objections to the amendment fall into three categories: insufficient and inaccurate data and analysis, insufficient legal description for the lands affected by the plan amendment, and inadequate wastewater services available for the increased density resulting from the amendment. These three categories will be used to organize the findings of fact that follow. Data and Analysis/Maps The Petitioners assert that the maps used for Plan Amendment 03-1 and the Remedial Amendment are not the official maps currently contained in the Beverly Beach Comprehensive Plan. They contend the unofficial maps contained errors that caused some of the area designated as Conservation/Saltwater Marsh to be included in the 14.5 acres re-designated Low Density Residential. At the hearing, the Petitioners also attempted to show that maps used by the Town with Plan Amendment 03-1 were not consistent with the Beverly Beach FLUM with regard to the depiction of saltwater marsh areas outside the 14.5 acres affected by the plan amendment. Whether such discrepancies exist is not a relevant inquiry for determining whether Plan Amendment 03-1 is in compliance. A 1997 report regarding threatened and endangered animal species, prepared by Lotspeich and Associates for the developer of the Shelter Cove PUD, includes a statement that there are 10.3 acres of spoil on the 37-acre PUD site. That figure is inconsistent with the Town's claim that the lands affected by Plan Amendment 03-1 consist of 14.5 acres of spoil. Lindsay Haga, a regional planner with the Northeast Florida Regional Planning Council (Council), made the determination that there are 14.5 acres of spoil area. Because the Town does not have a professional planning staff, the Council was providing planning services to the Town under contract. Ms. Haga worked on Plan Amendment 03-1 on behalf of the Town. Ms. Haga obtained a mapping of the land uses within the Shelter Cove PUD from information maintained by the St. Johns River Water Management District (District). The land use categories are based on the Future Land Use Classification Categorization System, and were applied by the District using aerial photography. Using professional software called "ArcView," Ms. Haga derived the size of the various land uses mapped within the Shelter Cove PUD by the District. The software calculated the size of the spoil areas as 14.5 acres. According to Ms. Haga, planners use this method "100 percent" of the time to delineate land uses on future land use maps. Ms. Haga was called as a witness by the Petitioners and by Beverly Beach and testified at length on direct and cross-examination on how she determined the size of the spoil areas. Nevertheless, some ambiguity remains as to whether the size and position of the spoil areas designated in the official Town FLUM are the same as their size and position as delineated by Ms. Haga for Plan Amendment 03-1 using information from the St Johns River Water Management District. The Town and the Department seem to suggest in their joint post-hearing submittal that the size and position of the spoil areas on the FLUM can be "cleaned up" or re-drawn using more site-specific information presented at the final hearing. The implication is that, if the Town's FLUM delineated less than 14.5 acres as Conservation/Spoil Area, but better data is presented at the hearing to show that the spoil areas actually cover 14.5 acres, the FLUM delineation can be ignored or treated as if did cover 14.5 acres. The redrawing of land uses as they are depicted on an adopted FLUM is arguably beyond the authority granted to the Department in Chapter 163. That issue need not be decided on this record, however, because the more credible and persuasive evidence shows there were no material changes to the size and position of the spoil areas in Plan Amendment 03-1, and no saltwater marsh was re-designated as Low Density Residential. Data and Analysis/Topographic Information The Petitioners assert that topographic data used by the Town was flawed and did not accurately reflect that much of the Shelter Cove PUD is within the 100-year floodplain. For example, the June 2002 Transmittal Packet sent to the Department included a statement that, "According to FEMA the 100 year floodplain is confined to the saltwater marsh areas located adjacent to the Intracoastal Waterway." At the hearing, the Town admitted that some of topographic information was inaccurate and described it as a "scrivener's error." The parties stipulated to the introduction into evidence of topographic information that indicates a portion of the 14.5 acres affected by Plan Amendment 03-1 lies within the 100-year floodplain. The Petitioners have not shown how the inclusion of inaccurate topographic in the data and analysis causes Plan Amendment 03-1 to be not in compliance; or, put another way, the Petitioners have not shown how the accurate topographic information proves Plan Amendment 03-1 will be inconsistent with the Beverly Beach Comprehensive Plan or applicable state laws and regulations. The Beverly Beach Comprehensive Plan does not prohibit Low Density Residential uses in the 100-year floodplain. Data and Analysis/Clustering The Petitioners contend that the data and analysis was flawed because it included a reference to the possibility of clustering dwelling units to avoid adverse impacts to areas unsuitable for development, but the Town has no regulations that allow for or address clustering. Neither the Amended Petition to Intervene nor the evidence presented by the Petitioners makes clear how this alleged error causes Plan Amendment 03-1 to be not in compliance. Any alleged error must relate to the 14.5 acres affected by the amendment. The Petitioners did not show that clustering of dwelling units is planned or necessary on the 14.5 acres. Data and Analysis/Scrub Jays The Petitioners contend that the data and analysis is insufficient because it fails to describe and account for the current use of the site by the Florida scrub jay, a bird listed as threatened by the Florida Fish and Wildlife Conservation Commission and the United States Fish and Wildlife Service. The Town and Department stipulated that scrub jays have been seen on the property. Charles Osbourne and Gail Duggins, a birdwatcher, testified that they have seen scrub jays in the Shelter Cove PUD area on several occasions. They marked Petitioners' Exhibit 15 to indicate eight specific sites within the PUD where they had observed scrub jays. None of the marked sites are located on the 14.5 acres affected by Plan Amendment 03-1. Lotspeich and Associates conducted a scrub jay survey on the 37-acre Shelter Cove PUD in 1997. They observed no scrub jays on the 14.5 acres that will be affected by Plan Amendment 03-1. In the written report of the survey, Lotspeich and Associates concluded that, "no jays reside on-site nor did any birds react as though they were defending territory which extended onto the property." Following a second survey in 2002, Lotspeich and Associates reached the same conclusion that the property "is unlikely to support a resident Florida scrub jay population." The observations of scrub jays made by Mr. Osbourne and Ms. Duggins do not contradict the conclusions of the Lotspeich and Associates reports. Mr. Osbourne and Ms. Duggins did not offer an opinion (and no foundation was laid for their competence to offer such an opinion) that scrub jays reside on the 14.5 acres affected by Plan Amendment 03-1. The Department's ORC Report stated that the originally-proposed amendment was not consistent with Policy E 1.4.3 of the Town's comprehensive plan which calls for the Town to obtain information from appropriate agencies concerning the known locations of listed plant and animal species. The Department recommended in the ORC Report that the Town conduct a survey for gopher tortoises and other listed species. The Department's objection about listed species, however, was not included its subsequent Statement of Intent to Find The Comprehensive Plan Amendment Not in Compliance. The Town had available to it, as part of the data and analysis to support Plan Amendment 03-1 and the Remedial Amendment, the Lotspeich and Associates reports prepared for the United States Fish and Wildlife Service. The reports convey the results of Lotspeich and Associates' surveys of the Shelter Cove PUD property for gopher tortoises, scrub jays and other listed species. It is likely to be the best information available since it is a site-specific, scientific study. The Petitioners did not show that better data were available or that the Lotspeich and Associates reports are flawed. In fact, the Lotspeich and Associates reports were exhibits offered by the Petitioners. Policy E.1.4.3 of the Beverly Beach Comprehensive Plan directs the Town to adopt land development regulations that provide protections for known listed species. Land development regulations are the usual and appropriate tools for applying specific protective measures to specific development proposals. No regulations have yet been adopted by the Town to protect listed species. Listed species are not left unprotected from development activities in the Town, however, since there are both state and federal laws to protect listed species and their habitats. Data and Analysis/Beach Access The Petitioners contend that the data and analysis was insufficient because it indicated that there are five locations in the Town where the public can gain access to the beach, but the Petitioners allege there are only two public beach walkovers that qualify under the Beverly Beach Comprehensive Plan. The beach access issue relates to the Town's recreational level of service standard adopted in the Recreation and Open Space Element of the Beverly Beach Comprehensive Plan. Policy F.1.1.1 specifies that the adopted level of service standard is "Five publicly-owned beach access facilities." The Petitioners apparently believe that the easements acquired by the Town that provide for public beach access across private property do not qualify as publicly-owned beach access facilities as contemplated by the Beverly Beach Comprehensive Plan. The term "publicly-owned beach access facilities" is not defined in the Recreation and Open Space Element, but one can find a statement at page F-2 that, "Access points and parking areas are support facilities for public owned beaches." Therefore, the Town considers an access point, without any man- made structures, to be a "facility." Furthermore, the comprehensive plan, itself, includes a map that depicts the location of the five public beach access points. It must be assumed that these access points met the Town's intent and meaning. By raising the issue of whether the data and analysis for Plan Amendment 03-1 is accurate in referring to the existence of five public beach access points, the Petitioners are collaterally attacking the existing comprehensive plan. Stephen Emmett, the mayor of Beverly Beach, stated that the five public beach access points depicted in the Beverly Beach Comprehensive Plan, as well as a new sixth beach access point, are currently maintained by the Town. Description of the Land Affected The Petitioners alleged in their Amended Petition to Intervene that the Town did not have an adequate legal description for the lands affected by the plan amendment. The issue was not raised in the Petitioners' Pre-Hearing Statement. When the Department objected to the Petitioners' presentation of evidence on this issue because it was not raised in their Pre- Hearing Statement, the Petitioners voluntarily withdrew the issue. Sanitary Sewer Services The Petitioners contend that sanitary sewer services are not adequate for the increased residential density that would result from Plan Amendment 03-1. The Beverly Beach Wastewater Treatment Facility is operated by Ocean City Utilities. Ocean City's application to renew the permit for the facility was denied by DEP in September 2003 because the facility was not in compliance with several DEP regulations. As a result of the denial of Ocean City's permit renewal application, DEP would not allow new customers to connect to the Beverly Beach Wastewater Treatment Facility, including the Shelter Cove PUD. DEP subsequently approved the connection of the Shelter Cove PUD wastewater collection system to the Beverly Beach Wastewater Treatment Facility. Permitting problems associated with the treatment plant was one reason for the Department's objection to the originally proposed plan amendment and the Department's subsequent determination that Plan Amendment 03-1 was not in compliance. No evidence was presented to show that Ocean City Utilities has corrected the deficiencies in the wastewater treatment plant or has obtained a renewal permit from DEP. Nevertheless, the Department determined that Plan Amendment 03-1 is in compliance based on the changes to the Beverly Beach Comprehensive Plan called for in the compliance agreement and adopted in the Remedial Ordinance. Objective D.2.1 of the Beverly Beach Comprehensive Plan was amended to require that existing deficiencies in the wastewater treatment plant be corrected by December 31, 2005. Policies D.2.1.1, D.2.1.2, D.2.1.3 were amended to re-constitute and re-energize a coordination committee to address the deficiencies in the wastewater plant and the feasibility of giving operational responsibility to another entity (such as Flagler County). In addition, the Remedial Ordinance amended Policy A.1.19 of the Beverly Beach Comprehensive Plan to prohibit the Town from issuing a permit or certificate of occupancy for the Shelter Cove PUD "until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code." No dispute was raised about the available capacity of the Beverly Beach Wastewater Treatment Facility to serve the Shelter Cove PUD.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Town of Beverly Beach Plan Amendment 03-1, and Remedial Ordinance 2004-ORD-6, are "in compliance" as defined in Chapter 163, Part II, Florida Statutes (2004). DONE AND ENTERED this 29th day of August, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005. COPIES FURNISHED: Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Box 3007 St. Augustine, Florida 32085-3007 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Thaddeus Cohen, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue is whether Respondent Negele is entitled to a coastal construction control line permit to construct a single- family residence seaward of the coastal construction control line on Anna Maria Island.
Findings Of Fact Respondent Susan Negele (Applicant) owns Lot 10, Block 35, of the First Addition to Anna Maria Beach. Petitioner owns the legal interest in Lots 11 and 12 in the same block. Lot 11 is adjacent to, and landward of, Lot 10, and Lot 12 is adjacent to, and landward of, Lot 11. As platted in 1912, Lot 10 was separated from the Gulf by 360 feet, consisting, from landward to seaward, of two 50-foot lots, an unnamed 10-foot alley, a 100-foot lot, a 50-foot-wide road known as Gulf Boulevard, and about 100 feet of beach (although this feature does not contain a stated distance and the plat map does not indicate the location of the mean or seasonal high water line). According to the plat, running perpendicular to Gulf Boulevard (and the shoreline) are Elm Avenue and another unnamed 10-foot alley. Elm Avenue, which is 50-feet wide, runs along the northwest property line of Lot 10, and the unnamed alley runs along the southeast property line of Lot 10. Today, Lot 10 is the first platted feature landward of the seasonal high water line of the Gulf of Mexico. The record does not reveal whether the platted features seaward of Lot 10 were submerged at the time of the original subdivision or, if not, the process or processes that submerged these three lots, alley, road, and beach. Notwithstanding the clear evidence of the plat map, there is insufficient record evidence on which to base a finding that the mean or seasonal high water line has migrated landward a distance of 360 feet in 88 years. The record is contradictory on the issue of the stability of the beach seaward of Lot 10. On the one hand, as noted below, two rock groins of unknown age on either side of Lot 10 suggest an effort to deter offshore erosion, but the presence of these groins does not support an inference of a diminishing beach. The beach seaward of Lot 10 is included in the Comprehensive Beach Management Plan, which is reserved for beaches that are subject to erosion, but the record does not develop this point adequately. On the other hand, also as noted below, the anecdotal evidence suggests that the beach seaward of Lot 10 has been stable, at least for the past two or three decades. A recent survey, described below, suggests rapid growth in the beach and dune over the past 16 months. Even stronger evidence of the stability of the beach seaward of Lot 10 is its exclusion from the 30-year erosion projection. The record unfortunately does not disclose the proximity of this line to Lot 10, which, if in close proximity, would be important evidence of the condition of a beach and frontal dune system. In sum, the relative stability of the beach in the vicinity of Lot 10 is unclear. However, the exclusion of Lot 10 from the 30-year erosion projection and the anecdotal evidence of stability slightly outweigh the contrary evidence of instability. Applicant's family has owned Lot 10 for 50 years. Originally, they occupied two buildings on Lot 10 that had once served as Coast Guard barracks. At one point, Applicant's father barged the houses up the Manatee River to his father's farm in Palmetto. The record does not reveal whether another building was ever constructed on Lot 10. From an engineering standpoint, Lot 10 is a buildable lot. Applicant seeks the necessary permits to allow residential construction, so as to raise the market value of Lot 10 prior to its sale in order to liquidate this asset following the death of her surviving parent. By application filed with Respondent Department of Environmental Protection (DEP) on June 16, 1997, Applicant requested a coastal construction control line (CCCL) permit to construct a single-family residence on Lot 10. On June 30, 1999, DEP issued a Final Order tentatively granting the permit, but authorizing the construction of a structure with a footprint of only 352 square feet. Finding the allowable footprint insufficient, Applicant challenged the tentative agency action in DOAH Case No. 99-3913. Finding even a 352-square-foot footprint objectionable, Petitioner also challenged the tentative agency action in DOAH Case No. 99-3613. The Administrative Law Judge consolidated the two cases. Agency action in cases of this type is necessarily tentative because it is subject to administrative challenge, which, once resolved, allows final agency action to take place. However, the tentative agency action in this case is tentative in another important respect. DEP has approached the permitting decision in this case through a bifurcated process. DEP has issued a Final Order approving the proposed activity in concept, but has withheld issuing a Notice to Proceed, which is necessary before construction may commence. DEP has withheld issuing the Notice to Proceed until it receives more detailed plans for grading and revegetating the dune and it determines that these plans adequately address the protection of the beach and dune system. As noted below, the bifurcated permitting process defers DEP's examination of detailed grading and revegetation plans until after its issuance of the Final Order. DEP's expert testified that DEP provides a point of entry to challenge final orders, but not notices to proceed. (Tr., p. 174.) The expert testified that DEP would provide another point of entry concerning the proposed activity, but only if DEP were to issue another final order, such as for a "major modification" of the project (Tr., p. 174). But nothing in the record suggests that DEP will be issuing another final order following it's receipt of the more detailed grading and revegetation plans, whose approval by DEP is not subject to administrative challenge (absent successful judicial action to force DEP to provide another point of entry). (The record does not reveal whether DEP would provide Applicant with another point of entry if DEP were to disapprove the more detailed plans and decline to issue the Notice to Proceed.) The absence of an agency-recognized point of entry to challenge the detailed plans means that the analysis necessary to make the determinations required by law concerning the impacts of the proposed activities must be limited to the Permit, as it presently exists, and these determinations may not rely upon additional protections that may be supplied by more detailed plans that are not yet in existence. DEP and Applicant settled DOAH Case No. 99-3913 shortly prior to the final hearing. The settlement stipulation incorporates a new site plan showing the proposed residence moved landward so that it is seven feet landward of the vegetation line, but setback only three feet from the northeast property line (adjoining Lot 11) and five feet from the southeast property line (adjoining the alley). DEP approved the settlement on or about March 17, 2000. By letter dated March 22, 2000, DEP's counsel advised Applicant's counsel that DEP would announce at the final hearing that "it intends to issue the [Permit] . . . in accordance with the agreed location in [the revised site plan] and all other applicable conditions of the June 29, 1999, final order and June 30, 1999, letter from [DEP] to Charles Rose." The CCCL permit is dated June 29, 1999, and expires on June 29, 2002. References to the "Permit" shall include the subsequent modifications that resulted in the settlement of DOAH Case No. 99-3913 and the modifications described below. Petitioner objected to all evidence and any express or implied amendment of the pleadings at the final hearing to encompass subsequent Permit modifications, but the Administrative Law Judge overruled these objections. The Permit authorizes Respondent to conduct activities in a location that is seaward of the CCCL, but landward of the 30-year erosion projection and the existing line of construction established by major structures in the immediate area. According to the survey dated October 15, 1998, and architect's plans dated November 12, 1998, the residence to be constructed would be an elevated two-story frame structure, over a concrete pad, with a footprint of 952 square feet. The proposed structure would be similar in size and character to other residences in the area. A registered architect has signed and sealed all relevant construction plans. For the purpose of this recommended order, the seaward side of Lot 10 is its 110-foot side facing the southwest. This southwest property line runs from the west corner to the south corner of Lot 10. The north and east corners mark the 110-foot side of Lot 10 that abuts Lot 11; this is the northeast property line. As already noted, the two 50-foot sides of Lot 10 abut Elm Avenue and the unnamed 10-foot alley. As it exists in the ground, Elm Avenue is a strip of pavement 17 feet wide located in the middle of the 50-foot wide platted right-of-way. At present, the paved portion of Elm Avenue does not extend seaward of the midpoint of Lot 11. Applicant proposes the construction of a shell drive between the Elm Avenue right-of-way and the north corner of Lot 10, but this proposed activity is not the subject of the present case. The road right-of-way immediately adjacent to Lot 10 was occupied by a 60-foot wooden access walkway extending from the end of the road seaward, between the rock groin and the northwest line of Lot 10. However, this walkway was removed in the past couple of years. At present, the rock groin parallel to the northwest line of Lot 10 occupies the center of the road right-of-way, extending from Lot 10's midpoint, which is landward of the seasonal high water line, to a point seaward of mean sea level. Another rock groin runs from the unnamed alley along the southeast line of Lot 10, also from a point just landward of the seasonal high water line, and extends seaward of mean sea level. Running parallel to the two 50-foot lot lines of Lot 10 and perpendicular to the shoreline, these two rock groins may offer some protection from erosion by affecting sand traveling offshore, but do not otherwise directly offer any protection to the beach and dune system. As established by Applicant, landward from the Gulf, relevant natural features are located as follows. Mean sea level, which is 0.00 feet National Geodetic Vertical Datum (NGVD), is over 50 feet seaward of the west corner of Lot 10 and over 100 feet seaward of the south corner of Lot 10. Mean high water, which is 1.2 feet NGVD, is 35 feet seaward of the west corner of Lot 10 and about 75 feet seaward the south corner of Lot 10. Seasonal high water, which is 3.63 feet NGVD, is about 10 feet landward of the west corner of Lot 10 and about 25 feet seaward of the south corner of Lot 10. About 15-20 square feet of the relatively low west side of Lot 10 is submerged at seasonal high water. In two respects, Petitioner's survey, which was dated March 25, 2000, establishes that, at least for the past 16 months, the beach and dune system is flourishing, not eroding. First, mean high water is now farther from Lot 10 than it was in late 1998. In the intervening 16 months, the mean high water line has migrated to a point 77 feet seaward of the west corner of Lot 10--a distance of 37 feet in less than one and one- half years. During the same period, the mean high water line has migrated from 75 feet to 102 feet--a distance of 27 feet--seaward of the south corner of Lot 10. Second, the newer survey reveals that the seven-foot contour, which is shown on Applicant's survey as a small area at the midpoint of the southeast lot line, now extends across the southeastern two-thirds of the central portion of the lot. It is difficult to estimate from the surveys, but the area of at least seven-foot elevation appears to be six or seven times larger than it was 16 months ago, although a very small area of eight-foot elevation shown on Applicant's survey appears to have disappeared. Both surveys show that the six-foot contour line roughly bisects Lot 10 diagonally from the north to the south corners. Evidence of beach stability supplied from the March 2000 survey is reinforced by anecdotal testimony that the beach at this location has been stable for at least 20 years. In general, the beach at this location is not as dynamic as beaches found elsewhere in Florida. The CCCL is about 259 feet landward of the north corner of Lot 10 and about 222 feet landward of the east corner of Lot The CCCL is landward of Petitioner's Lots 11 and 12, as well as the next two 50-foot wide lots and nearly the entirety of Gulf Drive (Snapper Street on the plat) adjoining this block. According to Applicant's survey, the seaward toe of the frontal dune runs roughly along the seaward six-foot contour, perhaps 10 feet seaward of this contour at the west corner and a perhaps five feet landward of this contour at the south corner. The vegetation line runs 3-5 feet landward of the surveyed seaward toe of the dune. According to Applicant's survey, the frontal dune continues over the landward half of Lot 10, excluding only a 10-square-foot area at the east corner and extending well across the southeastern line of Lot 11, so as to capture about one-fifth of that lot. However, the surveys do not support an independent determination of the toes of the frontal dune or, thus, its width. DEP's expert testified that the landward toe of the dune is probably landward of the surveyed location. Also, the scale of the surveys did not facilitate analysis of subtle changes in slope, which would be indicative of the toes of a low frontal dune, such as is involved in this case. DEP's expert opined that a maximum elevation of seven or eight feet NGVD meant, at this general location, that the toes would probably be at the five- foot contours. If so, the seaward toe would be about 10-15 feet seaward of its surveyed location, and the landward toe would be at an undetermined location landward of Lot 10. Several dynamic processes underlie the beach and frontal dune system. Perhaps most obviously, plants rooted in a dune capture sand and, thus, add to the size of a dune. The absence of such plants facilitates a reduction in dune size. The stability of a dune is also affected by the slopes of its seaward and landward sides and the size of the grains of sand constituting the dune. When restoring a dune, adherence to historic slopes and elevations enhances the possibility of a successful dune restoration. Deviation from these slopes and elevations raises the risk of failure. The same is true regarding the size and characteristics of the grains of sand used to restore a dune. Another factor important in dune stability, as well as upland protection, is the continuity of the dune. A shorter dune, in terms of its length running parallel to the shoreline, is less stable and obviously offers less landward protection than a longer dune. As originally proposed, Respondent's home would occupy the east corner of Lot 10. The southwest side of the residence (facing the Gulf) would have been about one foot seaward of the vegetation line and only one to two feet landward of the surveyed seaward toe of the frontal dune. The landward side of the residence would have been 10 feet seaward of the northeast side of Lot 10. The proposed home would have been setback 10 feet from the northeast and southeast property lines. Shortly prior to the commencement of the hearing, Applicant modified the proposed plans, and DEP modified the Permit. These changes would relocate the proposed residence so that it was seven feet landward of the vegetation line, but setback only three feet from the northeast line and five feet from the southeast line. Despite its relocation landward from its original proposed location, the entire residence would occupy the frontal dune. More specifically, the residence would sit on the seaward side of the frontal dune. The Permit imposes a number of special conditions upon the construction of Respondent's residence. Consistent with DEP's bifurcation of the permitting process in this case, these special conditions prohibit the commencement of construction until Respondent submits plans and specifications "includ[ing] or reflect[ing] the following:" 1.1 A revised site plan including the distances relative to coastal construction control line to all the authorized structures with dimensions. The revised site plan shall depict the dwelling relocated to within 3 feet of the upland lot line and not exceeding a distance of 244 feet seaward. * * * 1.5 A revised grading plan depicting the restored dune extending across the entire parcel with a minimum crest elevation of +7.0 feet (NGVD). * * * The fill material shall be obtained from a source landward of the control line and shall consist of sand which is similar to that already on the site in both grain size and coloration. This fill material shall be free of construction debris, rocks, or other foreign matter. A sample of the sand shall be provided to the staff representative during the preconstruction conference. All permanent exterior lighting shall be installed and maintained as depicted in approved lighting schematic. No additional exterior lighting is authorized. CAVEAT: Due to potential adverse impacts to the beach and dune system that may result from additional development on the property, the shore-parallel and seaward extent of the permitted structures shall not be increased, nor will any additional major structures be permitted which would exceed the limits established by the permitted construction seaward of the coastal construction control line. The present proposed location of the residence is not landward of a line running 244 feet seaward of the CCCL. Roughly one-third of the proposed residence would be seaward of this line, which is set forth in the Permit. Addressing the obvious conflict between the restriction contained in Permit Paragraph 1.1 prohibiting any structure seaward of a point 244 feet seaward of the CCCL and its approval of the new location for the residence, DEP announced at the hearing a new Permit Paragraph 1.1, which reads: The revised site plan shall depict the dwelling relocated within three feet of the upland lot line and not exceeding a distance of 250 feet seaward of the CCCL on the southwest corner and 255 feet seaward of the CCCL on the northwest corner. (Tr., pp. 119-20.) The revised site plan clarifies that the reference to "three feet" means the three-foot setback on the northeast lot line. The references to the southwest and northwest corners are, respectively, to the southernmost corner, which, when used with respect to Lot 10 in this recommended order, is described as the south corner, and the westernmost corner, which, when used with respect to Lot 10 in this recommended order, is described as the west corner. (For ease of reference at the hearing, counsel, the witnesses, and Administrative Law Judge reoriented Lot 10 by referring to the southwest lot line as the west lot line and treating the Gulf, which is southwest of Lot 10, as though it were due west of Lot 10.) At present, Applicant has submitted no grading plans, which would address the seaward toe of the frontal dune after construction. The landward toe is not on Applicant's property, so Applicant will not be able to change the slope of the landward side of the dune by adding sand to the portion of this dune not contained within Lot 10. As identified to this point, the Permit's requirements for dune restoration are sketchy, reliant upon more detailed grading plans that are not yet in existence. Permit Paragraph 5 adequately specifies the grain size. However, the Permit fails to specify the slopes, leaving this crucial element of the dune to the more detailed grading plans. Under the Permit, Applicant would be required to supply a specified volume of sand to the site. This volume was calculated to be sufficient, based on Applicant's survey, to raise the portion of the dune northwest of the seven-foot contour to an elevation of seven feet NGVD. However, if Petitioner's survey is correct, much less sand will be needed to raise the elevation to seven feet NGVD, so the "excess" sand will widen the dune. This recommended order has credited both surveys, so Applicant's survey provides the relevant details except for the more recent information supplied by Petitioner's survey concerning the locations of the mean high water line and the seven-foot contour. The widening of the dune authorized by the Final Order necessarily changes the dune's profile by extending the seaward toe closer to the shoreline and probably changes the slope of the seaward toe of the dune. Additionally, raising the elevation of the dune in the northeastern portion of Lot 10 will dramatically change its landward profile, given the fact that Applicant cannot add sand to the large portion of the dune landward of Lot 10. The effects of these alterations of the dune profile are entirely unknown to Applicant and DEP. Failing to perform the preliminary tasks of locating the existing dimensions of the dune--in terms of its width (perpendicular to the shoreline) and its length (parallel to the shoreline)-- Applicant and DEP lacked the baseline data upon which they could then analyze the construction and post-construction effects of placing Applicant's residence atop this dune. The present stability of the beach and dune system at Lot 10 does not dispense with the necessity of such analysis in making the determinations required by the relevant law. Additionally, the Permit fails to address the revegetation of the dune, again leaving this issue to more detailed plans not yet in existence. Specifically, Applicant has submitted no plans establishing a replanting scheme with specified species at specified distances, criteria by which to measure the success of the revegetation process (e.g., X percent coverage after one year), and a monitoring and enforcement program. Lastly, although the City of Anna Maria issued a letter approving of the proposed plans when Applicant proposed ten-foot setbacks, the City of Anna Maria has not had a chance to comment upon the proposal of three- and five-foot setbacks. Land use regulations of the City of Anna Maria require greater setbacks than these. As distinguished from its treatment of the dune profile and vegetation, the Permit supplies ample assurances that the proposed activities would be conducted in such a way as not to disturb nesting sea turtles, which, according to the record, infrequently occupy this specific location. Permit provisions, such as those scheduling construction and governing construction and post-construction lighting, adequately address the relatively simple task of protecting this lightly used nesting habitat.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application for a coastal construction control line permit to construct a residence at the location indicated at the hearing. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Adam Mohammadbhoy Harllee Porges Post Office Box 9320 Bradenton, Florida 34205 S.W. Moore Brigham Moore 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237 Francine M. Ffolkes Senior Assistant General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-9314
The Issue The ultimate issue is whether the Applicant, Florida-Georgia Venture Group, is entitled to development orders for its proposed development of regional impact, Hunter's Ridge, in Flagler County and the City of Ormond Beach, Florida.
Findings Of Fact The Petitioner is Florida-Georgia Venture Group, 402 Clifton Avenue, Holly Hill, Florida 32117, and its authorized agent is Thomas L. Durrance, Managing Partner. The Hunter's Ridge project lies within the jurisdiction of both the Northeast Florida Regional Planning Council (NEFRPC) and the East Central Florida Regional Planning Council (ECFRPC) and underwent concurrent review. The Hunter's Ridge project as proposed in this proceeding is a proposed planned unit development located in the unincorporated area of Flagler County and in the City of Ormond Beach on approximately 5,037 acres. The portion of the Hunter's Ridge project located in the unincorporated area of Flagler County consists of approximately 3,800 acres, of which 1,940 acres will be preserved as conservation area. The portion to be developed in the unincorporated area of Flagler County is approximately 1,860 acres, consisting of 1,702 residential units, plus commercial, recreational, and other uses. The portion of the Hunter's Ridge project located in the City of Ormond Beach consists of approximately 1,237 acres, of which 327 acres will be preserved as conservation area. The portion of the property in Ormond Beach to be developed is approximately 910 acres, consisting of 982 residential units, plus commercial, recreational, and other uses. Of the residential units to be developed in the City of Ormond Beach, 109 residential units were approved by the Department of Community Affairs (DCA) under a preliminary development agreement. The Board of County Commissioners of Flagler County held a public hearing on the DRI/ADA on July 13, 1989, which was continued to October 12, 1989, to November 2, 1989, to January 11, 1990, and to January 25, 1990. On January 25, 1990, the Board of County Commissioners of Flagler County passed and adopted a Development Order for the Hunter's Ridge DRI, which Development Order was recorded in Official Records Book 0423, Page 0669 through 0728, Public Records of Flagler County, Florida. The City Commission of the City of Ormond Beach held a public hearing on the DRI/ADA on August 15, 1989, which was continued to September 5, 1989, to September 19, 1989, to October 3, 1989, to October 17, 1989 and to January 30, 1990. At the public hearing on January 30, 1990, the City of Ormond Beach adopted Resolution 90-20 denying the DRI/ADA for the portion of the Hunter's Ridge DRI located in the City of Ormond Beach. The DCA, pursuant to Section 380.07, Florida Statutes, and Rules 42- 2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with the Florida Land and Water Adjudicatory Commission (FLWAC), whereby DCA appealed the Development Order adopted by the Board of County Commissioners of Flagler County. The Applicant, pursuant to Section 380.07, Florida Statutes, and Rules 42-2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with FLWAC, whereby the Applicant appealed the denial of approval by Ormond Beach. This cause came before FLWAC on May 22, 1990, for consideration of the Appeals and the Petitions for Administrative Hearing; FLWAC ordered that this matter be forwarded to Division of Administrative Hearings (DOAH) for assignment of a hearing officer and further proceedings. At the Administrative Hearing conducted by DOAH, on December 5-7, 1990, the Applicant amended its DRI/ADA to reduce the size of the project and to reallocate land uses, densities, and other components of the project. The current scope of the project is reflected in Florida-Georgia Exhibits 1-5, 9, and 14. As amended by the Applicant, the proposed project now consists of the following uses in Flagler County: 11.61 acres of Village Retail Office; 5.71 acres of Village Office; 16.68 acres of Light Industrial; 197.18 acres of Village Services/Recreational; 90.89 acres of Parks and Schools; 64.52 acres of Multi-Family Residential (with Upland Buffer); 259.34 acres of Wetlands; 146.93 acres of Roads, Drainage, and Retention; 52.90 acres of Lakes; 130.00 acres of Golf Course; 57.25 acres of Utility Easement; and 130.00 acres of Single Family Residential. The total number of dwelling units permitted in the County is 220 townhouses and villas and 145 apartments and condominiums. As amended by the Applicant, the proposed project now consists of the following uses in the City: 192.00 acres of Village Services/Recreational; 30.61 acres of Parks and Schools; 14.51 acres of Multi-Family Residential (with Upland Buffer); 174.54 acres of Wetlands; 110.95 acres of Roads, Drainage, and Retention; 28.65 acres of Lakes; 17.32 acres of Utility Easement; and 341.42 acres of Single Family Residential (with Upland Buffer). The total number of dwelling units permitted in the City are 932 single family units and 50 townhouses and villas. Generally speaking, the portions of the development within the County which are to be developed are in Township 41 South, Range 31 East, Section 22 and the east half of Section 21; Section 15 and the east half of Section 16, with the exception of a golf course in Section 15, constitute an area that, if it is to be developed in the future, will require a substantial deviation approval from all concerned agencies. Pursuant to stipulation of the Applicant and Flagler County, an area approximating Section 15 and the east half of Section 16 will be redesignated under the Flagler County Comprehensive Plan as Agricultural, with a permitted residential density of not more than one unit per five acres. Pursuant to stipulation, Sections 17 and 20 and the west halves of Sections 16 and 21, along with most of the portions of Sections 29 and 30 north of State Road 40, will be deeded to a public or public interest agency, with the Applicant retaining the right to conduct silviculture with best management practices except in those wetland areas of the property designated for conservation. The parties, with the exception of Citizens, have stipulated that Florida-Georgia Exhibit 5 constitutes the necessary affordable housing conditions for the project. The affordable housing provisions of the proposed project are consistent of the requirements of Chapter 380, Florida Statutes, Rule 9J-2, Florida Administrative Code, and the State Comprehensive Plan. The affordable housing conditions adequately address affordable housing needs of the project consistent with all local government, state, and regional requirements and regulations. The Applicant, the Florida Audubon Society, Flagler County and the City of Ormond Beach, have stipulated that the conditions contained in their Joint Stipulation, filed as Florida-Georgia Exhibit 9 satisfactorily resolve all issues concerning wetlands, wildlife habitat, and endangered species. The soils on the project will support the proposed development. During review of the DRI/ADA by the RPCs, Volusia County submitted comments and recommendations to ECFRPC. The comments and recommendations of Volusia County were considered by ECFRPC when it adopted its recommended conditions of approval. The conservation area proposed by the Applicant represents a significant contribution to conservation and wildlife. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on the environment and natural resources. The proposed Development Orders and Conditions of Approval include measures intended to address impacts upon, and to protect, the Little Tomoka River. The proposed Development Orders and Conditions of Approval provide for preservation and conservation of wetlands. The proposed Development Orders and Conditions of Approval provide flexibility for protection of environmentally sensitive areas. The proposed plan of development reflects a development that provides adequate environmental protection. The proposed project will have no adverse environmental impacts in the City of Ormond Beach. The proposed Development Orders and Conditions of Approval provide protection for the Little Tomoka River, preventive measures regarding stormwater discharge and stormwater treatment, and mitigative, water quality treatment methods in the surface drainage system, if any degradation is found at a later date. The proposed Conditions of Approval require that all construction within the project be protected against flooding. The project has sufficient safeguards to prevent construction within flood prone areas. Minimum floor elevations for flood plain purposes will be controlled by FEMA flood plain designations and by local rules and regulations, and will be established on a case by case basis for the Hunter's Ridge project. The proposed Conditions of Approval addressing transportation impacts and facilities are consistent with the provisions of Chapter 380, Florida Statutes, with the provisions of Rule 9J-2, Florida Administrative Code, and with the State Comprehensive Plan. The proposed Conditions of Approval ensure that the Hunter's Ridge project will not have an adverse impact on regionally significant roadways, including State Road 40. The proposed Conditions of Approval will ensure that the regional highway network will function at the desired level of service during the project buildout. The proposed Conditions of Approval are consistent with the provisions of Section 380.06(12), Florida Statutes, relating to transportation impacts. The proposed Conditions of Approval adequately address the transportation concerns of Flagler County. The proposed Conditions of Approval adequately address the transportation impacts on the City of Ormond Beach. The proposed Conditions of Approval dealing with public facilities are consistent with the provisions of Chapter 380, Florida Statutes, consistent with the provisions of Rule 9J-2, Florida Administrative Code, and consistent with the State Comprehensive Plan. If the conditions for providing public facilities are not met by the Applicant, development must cease. The proposed Conditions of Approval dealing with public facilities are consistent with the concurrency requirements of Chapter 380, Florida Statutes. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on public services and facilities. The proposed plan for development of the Flagler County portion of the project provides for all required public facilities and services. The Applicant will have to subsidize any deficits in providing public services. The Applicant has agreed to make contributions intended to assist Flagler County in providing public services to residents of areas outside of the Hunter's Ridge project. Solid waste is not an issue in Flagler County. The proposed Conditions of Approval for the Flagler County portion of the project provide three options for wastewater treatment. The proposed Conditions of Approval for the Flagler County portion of the project require that the project must stand on its own and must provide water supply and wastewater treatment without cost to the rest of the residents of Flagler County. The Flagler County portion of the project requires 1,200 to 1,500 dwelling units to provide a self-contained, self-supporting, self-sufficient development which will not require subsidy by other Flagler County taxpayers. The good mix of land uses contained in the proposed plan for development will help the tax base of Flagler County and avoid a deficit during the buildout of the project prior to construction of 1,200 to 1,500 dwelling units. The tax base, the values, and the assessments for the proposed project will provide sufficient funds to support the development. The proposed Conditions of Approval for the Flagler County portion of the project provide for voluntary contributions by the Applicant in excess of what is required by local ordinance. The dedication and donation of the golf course and conservation areas to Flagler County are voluntary contributions by the Applicant. The Ormond Beach portion of Hunter's Ridge project will not require a separate police patrol zone. The Ormond Beach Police Department can provide acceptable response times for the portions of the project within the City. The public safety site to be dedicated by the Applicant will benefit the City and the Police Department and will be helpful in rendering public safety services to the citizens of Ormond Beach. The Ormond Beach portion of Hunter's Ridge project will provide needed revenue to provide needed Police Department services. The Ormond Beach Police Department can adequately provide public safety services for the Hunter's Ridge area and respond to public safety needs within a reasonable amount of time. The City of Ormond Beach is capable of providing potable water service to the project. Impact fees generated by the project will be sufficient to fund water supply and wastewater capital facilities needed to serve the project. The City has adopted the West Ormond Plan to provide utilities to the Hunter's Ridge project. The Applicant has dedicated to the City a westerly wellfield site which will be needed for the entire city in the future, even if the Hunter's Ridge project is not developed. The City of Ormond Beach does not lose money on water and sewer fees. If the homes built in the Ormond Beach portion of the Hunter's Ridge project approximate the assessed values of existing homes within the city, there will be no revenue strain on the operating budget of the City of Ormond Beach. The average sale price for homes in the Hunter's Ridge project will be higher than the current average sale price within the City of Ormond Beach. The Hunter's Ridge project will not place an economic strain on the City of Ormond Beach. Future growth in the City of Ormond Beach will pay for itself in terms of capital needs. The fiscal problems of the City of Ormond Beach are not unique, but are similar to those occurring throughout the state. Increased property values from the Hunter's Ridge project will help the city's fiscal problems in the long run. The City of Ormond Beach has a great deal of ad valorem capacity to meet service needs and operating budgets. The Hunter's Ridge DRI will make significantly more contributions to public services and facilities than traditional subdivisions. The reduced project as proposed for approval in this proceeding contributes a greater amount of money toward public facilities. The public safety site to be dedicated in the Ormond Beach portion of the project is adequate to serve the fire fighting needs of the project and the surrounding areas. The public safety site to be dedicated in the Ormond Beach portion of the project gives the city flexibility in providing fire fighting services if the road network connecting the project with Shadow Crossings and Breakaway Trails is in place and will enable the city to better serve Shadow Crossings and Breakaway Trails. The roadway network for the Hunter's Ridge project will provide interconnections with Shadow Crossings and Breakaway Trails for the provision of police, fire, and emergency services. The Hunter's Ridge project will have no impact on solid waste in the City of Ormond Beach. The Hunter's Ridge project will have no impact on the vehicular needs of the City of Ormond Beach Department of Public Works. The Hunter's Ridge project will have no adverse impact on road maintenance in the City of Ormond Beach. The proposed Hunter's Ridge DRI is consistent with the requirements of Chapter 380, Florida Statutes, the requirements of Rule 9J-2, Florida Administrative Code, and the requirements of the State Comprehensive Plan. The Hunter's Ridge DRI meets all regional requirements. The Hunter's Ridge DRI does not represent "leap frog development," nor does it constitute "urban sprawl." The density of 982 dwelling units for the Ormond Beach portion of the Hunter's Ridge project is consistent with the State Comprehensive Plan and the requirements of Chapter 380, Florida Statutes. Reducing the density proposed for the Ormond Beach portion of the project from 982 residential units to 882 residential dwelling units would not necessarily be considered an improvement to furthering the plan concept. The Hunter's Ridge DRI is consistent with the plans and policies of the Regional Planning Councils. As to the portions within Flagler County, the Hunter's Ridge DRI: Is consistent with the provisions of Chapter 380, Florida Statutes; Is beneficial to Flagler County; Is consistent with the Flagler County Comprehensive Plan; Is consistent with the NEFRPC report and recommendations; Is superior to existing zoning; Provides better development and more planning opportunities than non- DRI approaches to development; and, Provides adequate controls for the development of Hunter's Ridge. The Ormond Beach portion of the project: Is consistent with the provisions of Chapter 380, Florida Statutes; Is consistent with the Ormond Beach Comprehensive Plan and all City ordinances and regulations; Adequately mitigates against adverse impacts through the Conditions of the proposed Development Order. To the extent that the opinions of some witnesses, primarily Mr. Grace and Mr. Shearer, have not been adopted in these Findings of Fact, they are deemed to be unreliable or lacking in substantial weight or persuasive value.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order and therein: Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and the City of Ormond Beach. Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and Flagler County. DONE and ENTERED this 21st day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Florida-Georgia Venture Group Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 12-14(6-8); 16- 19(9-12); 20(18); 22-25(19-22); 27-38(23-34); 40-89(35-83); 91(84); 92(85); 94(86); 97(87(; and 98(88). Proposed findings of fact 26, 39, 90, 93, 95, and 96 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 6-11 and 21 are unnecessary. Proposed finding of fact 15 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Department of Community Affairs Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 8-12(13-17). Proposed findings of fact 1, 2, and 13-17 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 3-7 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by the City of Ormond Beach 1. Proposed findings of fact 1, 8, 10-17, 21, 33-36, 38-40, 43, 46, and 49 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 2-7, 19, 20, 22, 23, 37, 47, 48, and 50 are irrelevant. Proposed findings of fact 9, 18, 24-32, 41, 42, 44, 45, 51, and 52 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by the Citizens for Ormond Beach 1. Proposed findings of fact 7, 9-11, 13-19, 21-25, 35, 47, and 49-52 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 8, 12, 20, 26-32, 34, 42, and 57 are irrelevant. Proposed findings of fact 33, 36-39, 43-46, 48, and 53-56 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 1-6, 40, and 41 are unnecessary. COPIES FURNISHED: J. Doyle Tumbleson, Attorney at Law Kinsey Vincent Pyle Professional Association 150 South Palmetto Avenue, Box A Daytona Beach, FL 32114 Fred S. Disselkoen, Jr. Attorney at Law City of Ormond Beach Post Office Box 277 Ormond Beach, FL 32175-0277 Gerald S. Livingston Attorney at Law Post Office Box 2151 Orlando, FL 32802 Timothy Keyser, Attorney at Law Post Office Box 92 Interlachen, FL 32148 Jonathan Hewett Attorney at Law Central Florida Legal Services, Inc. 216 South Sixth Street Palatka, FL 32177 David Russ, Senior Attorney Julia Johnson, Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, FL 32751 Linda Loomis Shelley Attorney at Law Dixon, Blanton & Shelley 902 North Gadsden Street Tallahassee, FL 32303 Noah McKinnon Attorney at Law 595 West Granada Avenue Ormond Beach, FL 32075 Douglas M. Cook, Director Planning and Budgeting Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001
The Issue The issue is whether the Department of Environmental Protection should approve Petitioner’s application for a coastal construction control line permit.
Findings Of Fact Stipulated Facts2 Petitioner, Beach Group Investments, LLC (Beach Group), is a limited liability corporation under Florida law. Its address is 14001 63rd Way North, Clearwater, Florida 33760. On December 19, 2005, Coastal Technology Corporation (Coastal Tech) on behalf of Beach Group submitted to the Department an application for a CCCL permit pursuant to Chapter 161, Florida Statutes, to construct 17 luxury townhome units in two four-story buildings, a pool, a dune walk-over, and ancillary parking and driveway areas (hereafter “the Project”). The Department designated the application as File No. SL-224. The property on which the Project is proposed (hereafter “the Property”) is located between the Department's reference monuments R-34 and R-35, in St. Lucie County. The Property’s address is 222 South Ocean Drive, Fort Pierce, Florida. The Property is located seaward of the CCCL line established in accordance with Section 161.053, Florida Statutes, and Florida Administrative Code Rule Chapter 62B-33. On April 21, 2006, the application was determined to be complete. By letter dated June 5, 2006, the Department notified Beach Group that the Project appeared to be located seaward of the 30-year erosion projection of the seasonal high water line (SHWL), and that in accordance with Section 161.053(6), Florida Statutes, the staff could not recommend approval of the Project since major structures are seaward of the estimated erosion projection. By letter dated July 7, 2006, and subsequent submittals, Beach Group requested a waiver of the 90-day time period for processing completed applications pursuant to Chapter 120, Florida Statutes, until October 31, 2006. On August 30, 2006, Beach Group submitted a certified engineering analysis of the 30-year erosion projection of the SHWL for the Department's consideration pursuant to Florida Administrative Code Rule 62B-33.024(1). Beach Group's analysis determined that the proposed major structures associated with the Project were located landward, not seaward, of the 30-year erosion projection. The Department also performed its own 30-year erosion projection of the SHWL, and determined that the proposed major structures were located seaward, not landward, of the 30-year erosion projection. The Department asserts that the proposed structures are located between 87 feet and 68 feet seaward of the Department's determination of the 30-year erosion projection. The Department disagreed with Beach Group's analysis because the analysis appeared to be inconsistent with Section 161.053(6), Florida Statutes, Florida Administrative Code Rule 62B-33.024, and the Department's own analysis. The Property is located just south of the Fort Pierce Inlet, and landward of a federally maintained beach restoration project that had approximately 14 years of life remaining under the existing Congressional authorization when the permit was submitted to the Department. By proposed Final Order dated November 1, 2006, the Department provided to Beach Group notice of its intent to deny the permit application. The proposed Final Order was received by Beach Group on November 8, 2006. Beach Group's petition for hearing was timely filed with the Department. Since the Department proposes to deny Beach Group's CCCL permit application, its substantial interests are clearly at issue, and it has standing to maintain this proceeding. On December 11, 2006, the Department issued an environmental resource permit for the Project. The Department denied Beach Group’s permit application because the Project extends seaward of the 30-year erosion projection calculated by the Department and because the Project’s impacts to the beach-dune system had not been minimized. The permit was not denied on the basis of the existence, or absence, of a line of continuous construction in the vicinity of the Project. The 30-year Erosion Projection (1) Background Fort Pierce Inlet (hereafter “the inlet”) was constructed by the Army Corps of Engineers in the 1920’s. The channel of the inlet is protected by two jetties that extend several hundred feet into the Atlantic Ocean. The jetties act as a barrier to the littoral transfer of sand from the north to south that would otherwise occur along the beach in the vicinity of the Property. The jetties cause accretion on the beach to the north of the inlet and erosion of the beach to the south of the inlet. The inlet channel beyond the jetties also restricts the littoral transfer of sand in the area. The deepening and widening of the channel in 1995 likely contributed to the increased erosion observed south of the inlet in recent years. The beach to the south of the inlet, including that portion on the Property, is designated as a “critically eroded beach” by the Department. The inlet is the primary cause of the erosion. Congress first authorized beach nourishment south of the inlet in 1965. That authorization expired in 1986. Congress “reauthorized” beach nourishment south of the inlet in 1996. That authorization expires in 2021, but St. Lucie County has requested that the authorization be extended for “another 50 years.” The first “major” beach nourishment south of the inlet occurred in 1971. Subsequent “major” nourishments occurred in 1980, 1999, 2003, 2004, and 2005. Another “major” nourishment is planned for 2007. There was a “moderate” nourishment of the beach in 1995, which included the placement of geotextile groins on the beach just to the north of the Property. “Small” nourishments occurred in 1973, 1978, 1987, 1989, 1990, 1992, 1994, 1997, and 1998. Cumulatively, the nourishments that occurred between the “major” nourishments in 1980 and 1999 involved approximately 419,000 cubic yards of sand, which is more than the volume involved in several of the “major” nourishments. Beach nourishment south of the inlet has been an ongoing effort since it started in 1971. The more persuasive evidence establishes that the nourishment project that is authorized through 2021 is a continuation of the project started in 1971 rather than a separate and distinct project. Various erosion control efforts have been used south of the inlet in conjunction with the beach nourishment efforts. For example, geotextile groins (which are essentially massive sandbags) have been installed and removed on several occasions since the mid-1990’s in order to “temporarily stabilize the shoreline until such measures could be taken to design, permit and construct a long-term solution”; concrete rubble and other riprap has been placed on the beach over the years (without a permit from the Department) to protect upland structures from erosion; and a "spur jetty" was constructed on the south jetty in an effort to reduce erosion south of the inlet. These efforts have not slowed the pace of the erosion or minimized the need for beach nourishment south of the inlet. Indeed, the need for and frequency of “major” nourishments south of the inlet have increased in recent years. Beach erosion south of the inlet will continue to be a serious problem so long as the inlet exists and the jetties remain in place. There is no reason to expect that the inlet or the jetties will be removed in the foreseeable future and, as a result, beach nourishment south of the inlet will continue to be necessary. The Department has recognized the need for continuing nourishment of the beach south of the inlet, as reflected in both the Strategic Beach Management Plan for the St. Lucie Beaches and the Ft. Pierce Inlet Management Study Implementation Plan. Those plans acknowledge the long-term need for continued nourishment of the beach at a rate of at least “130,000 cubic yards on an average annual basis.” The plans do not, however, guarantee that future beach nourishment in the area will occur at that, or any, rate. (2) Rule Methodology Florida Administrative Code Rule 62B-33.024 contains the methodology for determining the 30-year erosion projection, which is the projected location of the SHWL 30 years after the date of the permit application under review. Where, as here, the beach at issue is subject to an ongoing beach nourishment project, the methodology requires consideration of “pre-project” conditions -- i.e., the conditions that existed before the beach nourishment efforts started -- because those conditions are used to project how the beach will migrate landward in the periods over the next 30 years when there may not be any beach nourishment activity. The coastal engineering experts presented by the parties -- Michael Walther for Beach Group and Emmett Foster for the Department -- used essentially the same methodology to determine the location of the 30-year erosion projection. However, the variables that they used in each step of the methodology differed. Step 1: Locate the Pre-Project MHWL The first step in determining the 30-year erosion projection is to locate the pre-project MHWL. If a pre-project erosion control line (ECL)3 has been established in the area, it is to be used as the starting-point for the determination of the 30-year erosion projection. Otherwise a pre-project survey of the MHWL is to be used as the starting-point. Mr. Walther used a 1997 ECL as the starting point for his analysis. Mr. Foster used a March 2002 survey of the MHWL as the starting point for his analysis because he did not consider the 1997 ECL to be an appropriate pre-project ECL. The March 2002 survey of the MHWL is not itself an appropriate starting point for the analysis. The survey is not a “pre-project” survey, no matter how the project is defined; the survey occurred more than 30 years after the nourishments started in 1971, and three years after the first “major” nourishment pursuant to the Congressional reauthorization of the project. Moreover, as discussed below, there is an appropriate pre-project ECL in the area. There are two lines that might be considered to be a pre-project ECL in this case -- (1) the ECL established in 1997, and (2) the South Beach High Tide Line (SBHTL) established in 1968. The 1997 ECL was established based upon a survey of the MHWL performed on May 5, 1997. The survey occurred two years after a “moderate” beach nourishment and the placement of the geotextile groins on the beach. There was also a “small” nourishment in 1997, but the record does not reflect whether that nourishment occurred before or after the survey. The SBHTL was established based upon a survey of the MHWL between 1966 and 1968, prior to the initial nourishment of the beach south of the inlet. It is approximately 65 feet landward of the 1997 ECL. The SBHTL is the functional equivalent of an ECL, and it roughly corresponds to the “best fit line” for the March 2002 survey used by Mr. Foster as the starting point for his determination of the 30-year erosion projection in this case. The Department contends that the 1997 ECL is not based upon a “pre-project” survey of the MHWL because the applicable beach restoration project south of the inlet began in the 1970’s and has been ongoing since that time. Beach Group contends that the applicable project is the current one that is authorized through 2021, and that the 1997 survey preceded the start of the nourishments authorized by that project. The Department has used the 1997 ECL as the starting- point for determining the 30-year erosion projection in several prior permits in the vicinity of the Project,4 and in an April 9, 1999, memorandum discussing the 30-year erosion projection in the vicinity of monuments R-35 and R-36, Mr. Foster stated that “the ECL represents the pre-project [MHWL].” Mr. Foster no longer considers the 1997 ECL to be the appropriate pre-project MHWL for purposes of determining the 30- year erosion projection south of the inlet. He testified that had he been aware of “the complete background” of the 1997 ECL and the extent of the nourishments in the 1980’s and 1990’s, he would have brought the issue to the Department’s attention so that the Department could consider whether the 1997 ECL or “an earlier prenourishment line” was the appropriate pre-project MHWL. Although it is a close question, the more persuasive evidence presented at the final hearing establishes that the 1997 ECL is not an appropriate pre-project MHWL because the applicable “project” includes the beach nourishment efforts started in 1971 that have continued through the present, even though those efforts were intermittent at times. Thus, the appropriate starting point for determining the location of the 30-year erosion projection is the SBHTL, not the 1997 ECL used by Mr. Walther or the March 2002 MHWL survey used by Mr. Foster. Step 2: Locate the Pre-Project SHWL The second step in determining the 30-year erosion projection is to determine the location of the pre-project SHWL. Mr. Walther located the pre-project SHWL 26.4 feet landward of the 1997 ECL. That is the surveyed distance between the MHWL and SHWL in June 2005. Mr. Foster located the pre-project SHWL at the most landward location that the SHWL was surveyed in March 2002. The line is between 50 and 75 feet5 landward of the “best fine” line used by Mr. Foster as the pre-project MHWL, and it is as much as 25 feet landward of the surveyed location of the SHWL in some areas. Mr. Foster used “an average [of] 50 feet” as the MHWL- to-SHWL distance in his analysis of several prior permits in the vicinity of the Project.6 Mr. Foster testified that the distance between the MHWL and SHWL in this area varies “from the 20s in the immediate post-nourishment situations . . . all the way up to 70-some feet” and that the “the averages gravitate towards 40 feet.” Consistent with that testimony, the distance between the surveyed locations of the MHWL and SHWL depicted on Department Exhibit 6 is approximately 40 feet, on average. The MHWL-to-SHWL distance calculated by Mr. Walther is not a reasonable projection of the pre-project distance because it was based upon survey data taken immediately after a “major” beach nourishment when the shoreline was unnaturally steep and, hence, not representative of “pre-project” conditions. The SHWL located by Mr. Foster is also not a reasonable projection of the pre-project SHWL because it was based upon a March 2002 survey (which is clearly not "pre- project"); because it used the most landward surveyed location of the SHWL rather than a “best fit” line or an average of the distances between the surveyed MHWL and SHWL; and because it runs across areas of well-established dune vegetation. In sum, the MHWL-to-SHWL distance calculated by Mr. Walther (26.4 feet) is too low, whereas the distance resulting from Mr. Foster's siting of the SHWL based on the March 2002 survey (50 to 75 feet) is too high. Those distances are essentially endpoints of the range observed in this area, as described by Mr. Foster. A more reasonable estimate of the pre-project MHWL-to- SHWL distance is approximately 40 feet. See Findings 51 and 52. Thus, the pre-project SHWL is located 40 feet landward of and parallel to the SBHTL. That line is not depicted on any of the exhibits, but on Petitioner’s Exhibit 37, it roughly corresponds to a straight line between the points where the red- dashed line intersects the Property’s north and south boundaries. Step 3: Calculate the Erosion Rate The third step in determining the 30-year erosion projection is to calculate an erosion rate. The erosion rate used by Mr. Foster was -7 feet per year (ft/yr). That rate was calculated based upon an average of the shoreline change data for monument R-35 for the period from 1949 to 1967. The rate would have been higher had Mr. Foster averaged the rates for the nearby monuments.7 The erosion rate used by Mr. Walther was -4.9 ft/yr. That rate was calculated based upon an average of the shoreline change data for monuments R-34 to R-39 over the period of 1930 to 1968. An erosion rate of -7 ft/yr south of the inlet was referenced in permit applications submitted by Mr. Walter’s firm, Coastal Tech, for several shore protection structures south of the inlet; was used by Mr. Foster in his review of several prior CCCL permit applications south of the inlet; and was included in reports on the inlet prepared by the Army Corps of Engineers over the years. An erosion rate of -3.3 ft/yr was used and accepted by the Department in its review of another permit application in the general vicinity of the project.8 That erosion rate was based upon data from the period of 1972 to 1994, which is after the beach nourishment started south of the inlet. It is not entirely clear why Mr. Foster chose to use a data set starting in 1949, particularly since his report stated that the “1928-30 survey already shows significant erosion occurring south of the inlet.” His testimony did not adequately explain the choice of that data set. The use of a longer data set is typically more appropriate when calculating a historical rate. In this case, however, the use of the shorter period of 1949-68 is reasonable because the 1930-49 erosion rate was considerably lower than the 1949-68 rate,9 which has the effect of skewing the erosion rate calculated for the longer period of 1930-68. The higher erosion rate calculated by Mr. Foster also better takes into account the increased frequency of the nourishments in recent years as well as the continued need for shore stabilization in the area. In sum, the higher erosion rate of -7 ft/yr calculated by Mr. Foster using the 1949-68 data set better reflects the historical post-inlet, pre-nourishment erosion rate than does the lower erosion rate calculated by Mr. Walther. Step 4: Determine the Remaining Project Life The fourth step in determining the 30-year erosion projection is to determine the “remaining project life” of the “existing” beach nourishment project. It was stipulated that there are 14 years remaining until the currently authorized federal beach restoration project expires. It is reasonable to expect that beach nourishment south of the inlet will continue well beyond the expiration of the current federal project, but there were no other funded and permitted projects in place at the time Beach Group’s permit application was filed. Potential future beach nourishment projects are not considered “existing” under the rule methodology in Florida Administrative Code Rule 62B-33.024 unless they are funded and permitted at the time the application at issue is filed. Mr. Walther used the 14-year remaining life of the existing federal project in his calculation of the 30-year erosion projection, as did Mr. Foster. The “remaining project life” applicable to this case is 14 years, notwithstanding the likelihood of continued beach nourishment in the area beyond the expiration of the existing project. Step 5: Calculate the 30-year Erosion Projection The final step in determining the location of the 30- year erosion projection is a calculation using the variables determined in the previous steps. The calculation is as follows: first, the remaining project life determined in step four is subtracted from 30; then, that result is multiplied by the erosion rate determined in step three to get a distance; and, finally, the SHWL is moved that distance landward of its pre-project location determined in step two. Subtracting the remaining project of 14 years from 30 equals 16 years. Multiplying 16 years by the erosion rate of -7 ft/yr equals 112 feet, which means that the 30-year erosion line is located 112 feet landward of the pre-project SHWL (or 152 feet landward of the SBHTL). That line is not depicted on any of the exhibits, but it roughly corresponds to a straight line than runs across the Property parallel to the SBHTL just landward of the “conc. pad” and “existing conc. Pile caps (typ)” shown on Petitioner’s Exhibit 37. The line is 25 to 30 feet seaward of Mr. Foster’s 30-year erosion projection depicted on that exhibit. (3) Ultimate Finding Regarding the Location of the Proposed Structures in Relation to the 30-year Erosion Projection The Project includes major structures seaward of the 30-year erosion projection, as determined above. Impacts of the Project on the Beach-Dune System The Project includes 17 luxury town home units in two four-story buildings, a pool and spa, landscaping, and an elevated dune walkover. The units will range from 2,700 to 4,400 square feet of living space and are projected to be offered for sale in the $1.5 to $2.5 million range. Beach Group’s principal, Harold Seltzer, testified that the Project is sited as far landward as possible to allow for the development of all 17 units while still complying with the local setback and height restrictions; that the Project’s financial viability depends upon it being developed as proposed; and that the Project cannot be redesigned and remain financially viable. The CCCL permit application included a letter from the City of Ft. Pierce confirming that the Project is consistent with the applicable local development codes. Mr. Seltzer testified that the Project’s local development approvals expired in September 2006 because the CCCL permit had not been issued, and that Beach Group is having to go back through the local permitting process. The seaward extent of the Project is the 1978 CCCL, which is approximately 250 feet seaward of the current CCCL. The buildings on the adjacent properties are also located on the 1978 CCCL. The Project does not extend further seaward than the nearby development, including the structures authorized by the Department in File Nos. SL-162 and SL-173.10 The seaward boundary of the Property is the SBHTL. That line is approximately 295 feet landward of the MHWL established in June 2005, and as noted above, it is approximately 65 feet landward of the ECL established in 1997. The adjacent properties are developed with multi-story residential buildings. There is a densely vegetated dune feature in front of the building to the south of the Property. There is some vegetation, but no discernable dune in front of the building to the north of the Property. The Property as a whole is sparsely vegetated, but there are areas of “prolific vegetation” on the Property. The seaward extent of the vegetation on the Property roughly corresponds to the location of the 1978 CCCL. There are several mature sea grape clusters in the vicinity of that line. The beach in front of the Property is devoid of vegetation. It has a steep slope immediately landward of the water line; a wide (approximately 270 feet) expanse of relatively flat beach; and a gently sloping dune feature that starts just landward of the Property’s seaward boundary, crests approximately 30 feet farther landward, and then gradually slopes downward across the Property all of the way to State Road A1A. The dune feature on the Property is the frontal dune. It is the first mound sand located landward of the beach that has sufficient vegetation, height, continuity, and configuration to offer protective value. The crest of the frontal dune is seaward of the vegetation line on the Property, and ranges in height from +9.7 to +12.2 feet NAVD.11 The seaward toe of the dune is shown on the topographic survey for the Property at elevations ranging from +7.27 to +7.85 feet NAVD. Similar elevations occur on the landward side of the dune crest, just landward of the 1978 CCCL. The vegetation on the Property extends landward of the 1978 CCCL and landward of the line shown on the topographic survey of the Property as the “approximate location of sparse grass and ground cover.” The landward extent of the vegetation does not in and of itself define the landward extent of the dune; changes in the slope of the ground must also be considered. The more persuasive evidence establishes that the landward toe of the frontal dune is landward of the 1978 CCCL, but not as far landward as suggested by Department witness Tony McNeal.12 The landward toe of the dune on the Property is best defined by the elevations landward of the dune crest similar to the elevations shown for the seaward toe of the dune. The Project extends into the frontal dune on the Property, and it will requires minor excavation of the frontal dune, primarily in the area of the proposed pool. All aspects of the project, except for the proposed dune walkover, will be landward of the crest of the frontal dune and the mature sea grape clusters located on the dune. There will be no net excavation on the Property as a result of the Project. The sand excavated for the pool will be placed on-site, and additional beach-compatible sand will be used as fill for the site. Overall, the Project will result in the net placement of approximately 66 cubic yards of sand on the Property. The proposed structures will be elevated on piles, which will allow the beach-dune system to fluctuate under the structures during storm events. The finished floor elevation of the proposed structures is approximately +8 feet NAVD, which is slightly higher than the elevations associated with the toes of the frontal dune. The Project will not destabilize the frontal dune, even though it will encroach into the dune. The impacts of the Project on the beach-dune system will be mitigated by the placement of additional sand into the beach-dune system, as described above. The Project’s impacts will be further mitigated by the enhancements to the frontal dune described in the permit application. Mr. Walther testified that the frontal dune on the Property could “very easily” be enhanced to be of comparable height and magnitude of the dunes on the adjacent properties. The permit application proposes enhancements to the frontal dune as part of the Site Landscaping Plan for the Project. The proposed enhancements include increasing the crest of the dune to a height of +15 feet NAVD, and extensive planting of the dune with sea grapes, beach morning glories, and sea oats. The plantings would extend from the 1978 CCCL to the seaward toe of the existing frontal dune. The dune enhancements proposed in the permit application should be included as a specific condition of the CCCL permit for the Project, if it is approved.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order denying Beach Group’s application for a CCCL permit. DONE AND ENTERED this 19th day of April, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2007.
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
The Issue The issues for determination at final hearing were (1) whether Petitioner's coastal construction Permit No. 86-155PB, authorizing Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Palm Beach County, Florida, should be extended under Special Permit Condition 10 of the Permit and (2) whether the experimental reef structure should be removed pursuant to Special Permit Conditions 3 and 12 of the Permit.
Findings Of Fact On April 6, 1987, American Coastal Engineering, on behalf of Willis H. DuPont (Petitioner) and Florida Atlantic University's Department of Ocean Engineering, was granted coastal construction Permit NO. 86-155PB 3/ (Permit) by the Department of Natural Resources (Respondent). 4/ The Permit authorized Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Florida. The experimental reef structure, referred to as a prefabricated erosion prevention reef (PEP reef), is a 550 foot submerged breakwater which was constructed using prefabricated concrete segments, placed end-to-end underwater in the nearshore area. The purpose of the PEP reef is to reduce erosion of the beach landward of the structure. The PEP reef was installed on May 5, 1988. Special conditions were placed on the Permit, to which Petitioner agreed. The special conditions in pertinent part provide: The permittee shall adjust, alter or remove any structure or other physical evidence of the work or activity permitted, as directed by the Executive Director, if in the opinion of the Executive Director, the structure, work or activity in question results in damage to surrounding property or otherwise proves to be undersirable or becomes unnecessary. Adjustment, alteration, or removal required under this provision, shall be accomplished by the permittee at no cost to the State of Florida. * * * 10. The proposed submerged breakwater shall be removed within two years following installation of the experimental structure unless determined by the staff to remain in place for an extended period of time. This determination shall be based on a staff evaluation of the monitoring data, existing statutory regulations, and the feasibility of the project in concurrence with the beach management plan at that time. The experimental structure shall only remain in place after two years upon written approval from the Executive Director indicating an extension has been granted. * * * 12. The Executive Director may order removal of the experimental structure as soon as the shoreline along any portion of the area required to be nourished under Special Permit Condition 6 erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location within the area to be monitored. Petitioner requested an extension of the Permit. On July 10, 1991, Respondent issued a final order denying an extension of the Permit, pursuant to Special Permit Condition 10, and directing the Petitioner to remove the PEP reef pursuant to Special Permit Conditions 3 and 12. An extension of the Permit beyond the two years following installation of the PEP reef, according to Special Permit Condition 10, is based upon three factors: (1) an evaluation by Respondent's staff of monitoring data gathered by Petitioner, (2) statutory regulations existing at the time of the extension request, and (3) the feasibility of the project in concurrence with the beach management plan existing at the time of the extension request. Although Petitioner's monitoring data addressed the question whether the PEP reef was performing its function, it did not address existing statutory regulations or the project's feasibility in concurrence with the current beach management plan. 5/ Petitioner's monitoring data was collected over a two-year period with surveys being performed through March 1990: March 1988 (preconstruction), May 1988 (post-construction), August 1988, December 1988, February 1989, April 1989, July 1989, November 1989, and March 1990. The data was collected along 17 profile stations: seven stations were located within or immediately adjacent to the boundaries of the PEP reef, and five to the north and five to the south of the PEP reef. The data indicated that the PEP reef was an experiment and approved by Respondent as an experiment. As a conclusion, Petitioner indicates that the PEP reef is functioning for the purpose it was designed in that it is providing a benefit to the beach. Respondent disagreed with Petitioner's conclusion. For one, Respondent disagreed with the method of analysis used by Petitioner to analyze the data because Petitioner's analysis failed to filter out seasonal effects. This procedure brought into play the first of the three factors in Special Permit Condition 10 which was used for denial of the Permit extension. Petitioner's monitoring data was utilized and analyzed by Respondent. Using the data gathered, Respondent created profile plots which are cross sectional depictions of the shoreline profiles and which displayed changes to the shoreline occurring during the survey period. Respondent used a shoreline change analysis in determining the PEP reef's effect on the shoreline in its vicinity. The analysis focused on the net change in the shoreline, i.e., the net change in the location of the mean high water line, factoring out the seasonal variations which occur along the coast by comparing profile plots from the same time of year taken during the two-year monitoring period. The shoreline change analysis indicated that in the vicinity of the PEP reef the shoreline showed irregular periods of both accretion and erosion. However, the shoreline did not reflect the typical pattern that was expected with a functioning breakwater. To the contrary, the irregular periods of accretion and erosion and the irregular configuration of the shoreline indicated that factors other than the PEP reef were affecting the shoreline. One such intervening factor was attributed to the large number of existing shoreline structures called groins which are scattered throughout the area. Groins are structures intended to stabilize the shoreline by blocking the down drift movement of sand, thereby altering the natural coastal processes. The monitoring data shows that, in terms of accretion or erosion, the PEP reef produced no recognizable influence on the shoreline in its vicinity. As to the second factor in Special Permit Condition 10, at the time the Permit was granted in 1988, no regulations specifically applicable to experimental structures existed. However, in 1989 a provision specifically addressing the permitting of experimental structures became law. /6 The provision provides that the "intent" of the Florida Legislature is to "encourage the development of new and innovative methods for dealing with the coastal shoreline erosion problem," and that, in authorizing the "construction of pilot projects using alternative coastal shoreline erosion control methods," the Respondent must determine, among other things, that "the proposed project site is properly suited for analysis of the results of the proposed activity." Groins in the PEP reef area alter the natural coastal processes and, therefore, play a significant role in the analysis of the shoreline processes. The effect of the groins affected the Respondent's ability to determine the effectiveness of the experimental structure. As a result, the Respondent was unable to make a determination in accordance with the legislative mandate. As to the third factor in Special Permit Condition 10, Petitioner presented no evidence addressing this factor. Petitioner has failed to show that the experimental structure, the PEP reef, has satisfied Special Permit Condition 10. It has failed to show that the intended purpose of the PEP reef has been accomplished, i.e., that the PEP reef is effective or beneficial. In denying Petitioner's request for an extension of the Permit, Respondent directed removal of the PEP reef pursuant to Special Permit Conditions 3 and 12. Special Permit Condition 3 provides for removal, alteration or adjustment of the PEP reef if it "proves to be undersirable or becomes unnecessary." The construction of the PEP reef consisted of, among other things, the placing of individual reef units end-to-end. To alert boaters to the location of the PEP reef, a buoy was placed at each end of the structure. The stability of the PEP reef is questionable. In 1989 a storm dislodged the individual units. In an effort to prevent sliding, Petitioner attempted to realign the units to their original position and added more weight to the units. Despite Petitioner's efforts to stabilize the structure, the PEP reef has experienced continued movement. Furthermore, because of the continued movement, boaters' safety would be compromised in that the buoys would be ineffective in warning them of the location of any units which may be dislodged. Also, the additional weight to the units could cause the individual units to settle, potentially affecting the performance of the PEP reef, and could induce erosional scour around the structure itself. Special Permit Condition 12 provides for removal when "the shoreline along any portion of the area required to be nourished . . . erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location." The shoreline analysis showed that the shoreline in many portions of the nourished area eroded landward of the pre-nourished beach profile. The mean high water line had positioned landward of its pre-project location. Petitioner has failed to show that the PEP reef does not fall within the conditions of Special Permit Conditions 3 and 12. Federally protected and endangered marine species have attached themselves to and/or now reside in the PEP reef, complicating the removal of the PEP reef. In order not to disturb or disrupt this marine life, Respondent has expressed a desire in relocating the structure to a position further offshore.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources 7/ enter a final order DENYING an extension of Permit No. 86-155PB. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of April 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April 1994.
Findings Of Fact South Palm Beach Utilities Corporation is a private provider of water and sewer services in Palm Beach County, Florida. It is presently operating within a specified service area according to a certificate issued by the Public Service Commission. The utility is seeking to expand its service area north of the present boundaries, and has filed various notices of its intention with the Public Service Commission. As to some of these notices, no protests were filed, and the utility has commenced preliminary engineering planning activities to provide water and sewer lines to those areas. Palm Beach County has filed timely protests with respect to four off the parcels to which the utility is proposing to extend its certified service area. These four properties have been called the "Atlantic," "Mitchell," "Snow," and "Benson" properties. In its notices, the utility described the "Atlantic" property as follows: Tracts 49 thru 56 inclusive; 73 thru 88 inclusive and 105 thru 120 inclusive, in Section 21; and Tracts 9 thru 24 inclusive; 41 thru 56 inclusive; 73 thru 88 inclusive; and 105 thru 120 inclusive, in Section 28, all as shown on Palm Beach Farms Company Plat No. 1, as recorded in Plat Book 2, Pages 26, 27 & 28, Public Records of Palm Beach County, Florida, together with the West Half of the East Half of Section 21 and the West Half of the East Half of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida. EXCEPTING therefrom the dedicated public right of ways of record, as shown on the said Palm Beach Farms Company Plat No. 1, and the Plat of Delray Roads (containing 10.9500 acres) and the following Lake Worth Drainage District right of ways: LWDD Canal L-34: Beginning at a point where the Southerly line of a public right of way, 120.0 feet wide known as Del Ray West Road (State Road 806) intersects the North & South Quarter Line of Section 21, Township 46 South, Range 42 East, Palm Beach County, Florida, said point being S 1 degree 54' 34" E, 34.13 feet from the North Quarter Corner of said Section 21; run thence along said Quarter Section Line S 1 degree 54' 34" E, 90.02 feet; thence N 89 degrees 18' 11" E, 1342.63 feet to the East line of the West Half of the East Half of said Section 21; thence along said East Line N 2 degrees 06' 02" W, 90.03 feet to the South Line of said Del Ray West Road; thence along said South Line S 89 degrees 18' 11" W, 1342.33 feet to the Point of Beginning, Containing 2.7737 acres; LWDD Canal L-35: The South 10.0 feet of the West Half of the Northeast Quarter; the North 80.0 feet of the West Half of the Southeast Quarter; the South 15.0 feet of the Northwest Quarter (less the West 55.0 feet); and the North 75.0 feet of the Southwest Quarter (less the West 55.0 feet), in Section 21, Township 46 South Range 42 East, Palm Beach County, Florida, Contain- ing 8.2207 acres; LWDD Canal L-36: The South 15.0 feet of the West Three-Quarters of Section 21 (Less the West 55.0 feet); and the North 75.0 feet of the West Three-Quarters of Section 28 (less the West 40.0 feet); all in Town- ship 46 South, Range 42 East, Palm Beach County, Florida, Containing 8.2672 acres; LWDD Canal L-37: The South 40.0 feet of the North Half of the West Three-Quarters; and the North 50.0 feet of the South Half of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida, (Less the West 40.0 feet Thereof), Containing 8.1733 acres; LWDD Canal L-38: The South 105.0 feet of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida (less the West 40.0 feet thereof), containing 9.6120 acres; and LWDD Canal E-3: The West 55.0 feet of the South Half, and the West 55.0 feet of the South 664.91 feet of the North Half of Section 21; and the West 40.0 feet of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida, con- taining 9.2135 acres. Containing a net acreage of 816.1290 acres. The utility described the "Mitchell" property as follows: All of Tracts 65 to 128 inclusive, Section 29, Township 46, South, Range 42 East, (less 30.59 acres sold to Florida State Turnpike Authority and more particularly described in Deed Book 1104, Page 577), The Palm Beach Farms Co. Plat No. 1, according to the Plat thereof on file in the Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, recorded in Plat Book 2, Pages 26 to 28. The "Snow" Property is described as follows: The North half of Sections 31 & 32, Town- ship 46 South, Range 42 East, Palm Beach County, Florida, and also known as Tracts 1 through 60, Block 71 and Tracts 1 through 64 of Block 70, Palm Beach Farms Company, Plat No. 3, as recorded in Plat Book 2, Page 52, Palm Beach County, Florida. At the hearing, the utility amended its notice with respect to the "Snow" property to withdraw its intention to provide service to the north half of Section 32, or that property east of Lyons Road. As to the property west of Lyons Road, being the north half of Section 31, the utility maintains its intention. The "Benson" property has been described by the utility as follows: Tracts 65 through 70, 91 through 102, and 123 through 128, Block 70, Palm Beach Farms Company, Plat No. 3, Plat Book No. 2, as recorded on Page 52 wholly within the South Half of Section 31, Township 46 South, Range 42 East, Palm Beach County, Florida. [This finding is determined from a stipulation of the parties as stated on the record at the final hearing, and from Exhibit 1.] The South Palm Beach Utilities Corporation is a fit provider of water and sewer service. No issue has been raised with respect to the quality of the service provided by the utility, and it is under no citations from any government agency. The utility has the financial integrity and engineering capability to provide service to the four properties involved in this proceeding. With respect to each of the four properties, the utility has provided the notices required by statute. Extension of the utility's service area to include the four properties would not result in a duplication of any existing facilities. No other utility is providing service to the area. In its long-range plans, the County envisions providing service to the area, but it does not provide service now, and would not be in a position to provide service for at least three to five years. The owners of the four proporties have proposed developments which would require provision of water and sewer service. [This finding has been determined from stipulations stated by the parties on the record at the final hearing.] In accordance with the "Local Government Comprehensive Planning Act of 1975" (Florida Statutes Section 163.3161, et seq.), Palm Beach County has promulgated a comprehensive plan which includes a "sewer, potable water, drainage and solid waste element" and a "land use plan element." The land use element of the comprehensive plan provides that the areas where South Palm Beach Utilities Corporation is seeking to expand its territory will be set aside for low density development. The County contends that expansion by the utility into these areas would allow for a level of development which is not in harmony with the land use element of the comprehensive plan. The evidence does not support this contention. No specific evidence was presented as to development densities proposed by developers, and it does not appear that allowing the utility to expand its service area would as a factual or legal matter allow for development of any kind. [This finding is determined from the testimony of the witnesses Garbrick and King, and from Exhibits 3, 4 and 5.] Extension of the South Palm Beach Utilities Corporation service area into the four properties at issue would conflict with the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan. Under this element of the comprehensive plan, which is in harmony with an overall management plan to treat wastewater pollutants that the County has developed in accordance with Federal funding requirements ("201 Plan"), the County envisions that it would provide sewer service to the "Atlantic" and "Mitchell" properties through a central wastewater treatment facility. Plans for providing such service have been made on a long-range basis, and the County is in the process of refining the plans so that it can obtain Federal funding. Removal of the "Atlantic" and "Mitchell" tracts from the area that the County proposes to serve through the central facility would not be in accordance with the "201 Plan." Removal of the properties would reduce the service area of that central facility, and could affect the size of the central facility, and funding. Removal of the properties would furthermore be contrary to the plans because of the introduction of a wastewater treatment facility other than the central facility. Both the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan and the "201 Plan" are long range. The County is not presently prepared to offer service to the properties at issue, and will not be prepared to do so for some time. This finding is determined from the testimony of witnesses Garbrick and King, the stipulation of the parties stated on the record at the final hearing, and Exhibits 2, 3 and 5.] While the evidence establishes that extension of the South Palm Beach Utilities Corporation's service area would on its face conflict with the County's comprehensive plan, the evidence does not establish that the conflict would adversely affect the plan. The evidence does not reveal that provision of services by facilities other than the County's central system would render the central system less feasible. While it was speculated that the central system might need to be reduced in size as a result, and that the rate base for it would be lessened in an unspecified amount, no competent evidence to these effects has been presented. [This finding is determined from the record as a whole.]
The Issue The issue is whether, pursuant to Section 161.053, Florida Statutes, and Rule 62B-33.005, Florida Administrative Code, Petitioners are entitled to a coastal construction control line permit to build a single-family residence in Volusia County with a structural elevation of 19 feet National Geodetic Vertical Datum, not 24 feet National Geodetic Vertical Datum, as required by Respondent.
Findings Of Fact Petitioners own an undeveloped lot located at 4279 South Atlantic Avenue in the Wilbur-by-the-Sea subdivision in unincorporated Volusia County. Mr. Humphries' family has owned the lot for 50 years. The rectangular lot is 210 feet deep and 50 feet wide. The narrower end abuts the Atlantic Ocean on the east and South Atlantic Avenue on the west. The south boundary of Petitioners' lot abuts a developed lot. The house located on this lot has a finished- floor elevation of 26.15 feet National Geodetic Vertical Datum (NGVD). This is consistent with the structural elevations of most of the residences in the immediate vicinity of Petitioners' lot. Even though the seaward extent of Petitioner's proposed structure is roughly in a line with the seaward extent of the nearby homes, the issue in this case is the structural elevation. The north boundary of Petitioners' lot abuts the 50- foot-wide right-of-way of Major Street. In 1984, a wooden walkway was constructed in the southern half of the Major Street right-of-way to allow pedestrians access to the beach. By that time, Major Street was no longer open for vehicular access. However, the construction and maintenance of Major Street may have contributed to the lower elevations on the north boundary of Petitioners' lot, as described below. Nearly all of the lots in the vicinity of Petitioners' lot have been developed; most, if not all, of them contain single-family residences. Petitioners, who are nearing retirement, wish to construct a house that would accommodate them in their later years when they expect their mobility to be reduced. Petitioners' house will sit atop a prominent secondary dune, as do all of the other oceanfront homes in the immediate vicinity. The house will also be confined roughly to the landward half of the lot. These factors mean that the relatively short driveway leading from South Atlantic Avenue to the garage will be relatively steep. Petitioners proposed a reduction in the top of the dune to reduce the steepness of the driveway and the difference in finished-floor elevations between the garage and the house. Generally, the south side of Petitioners' lot is higher than the north side. The seasonal high water line is 8.4 feet NGVD. The lot's east boundary, which is 7-8 feet landward of the seasonal high water line, is about 11.5 feet NGVD. The elevation of the south boundary rises to 28.5 feet NGVD, at a distance slightly east of the most seaward extent of the 10-foot wooden deck that is the most seaward structure proposed by Petitioners. The elevation of the north boundary does not rise much; over the same distance, it reaches only 12 feet NGVD. Proceeding westward, toward South Atlantic Avenue, the south boundary drops from its 28.5-foot elevation. Parallel to the proposed house, the boundary remains at about 25 feet NGVD, except it drops to about 20 feet at the point where the house would meet the garage. For the length of the 26-foot garage, the south boundary drops to 18.5 feet NGVD. For the length of the 30-foot section of driveway between the garage and the west boundary, the south boundary drops from 18 feet NGVD to 17 feet NGVD. The north boundary rises to its highest point, 20.6 feet NGVD, at a point just landward of the point along the boundary closest to the junction between the proposed wood deck and the house. Running parallel to the proposed house, the north boundary drops to about 18 feet NGVD (directly across from a point along the south boundary that reaches about 25 feet NGVD) and then to about 17.5 feet NGVD, at a point just landward of the point closest to the junction of the proposed house and garage. The proposed house would occupy elevations, prior to proposed site preparation, of about 28 feet NGVD at the seaward side, 22-26 feet NGVD at the midpoint, and no more than 21 feet NGVD at the landward side. The proposed deck, house, and all but a sliver of the garage lie seaward of the coastal construction control line. The northeast corner of the proposed house is 72 feet seaward of the coastal construction control line. The dune is largely vegetated. The vegetation includes sea oats, shrubs, and some palm trees, although Brazilian pepper, a nuisance exotic, also vegetates part of the dune. Just seaward of the southeast corner of the proposed deck is a hole, perhaps from past excavation, about ten feet deep and occupying 8-10 percent of the lot. This is the only portion of the lot significantly below-grade. Overall, the dune is functional and healthy. To the extent that it has been disturbed in the past, the dune seems to be recovering vigorously. On or about July 21, 1999, Petitioners applied for a permit to construct a residence seaward of the coastal construction control line. In their application, Petitioners proposed a structural elevation of 19 feet NGVD. The structural elevation, which is about two feet lower than the finished-floor elevation, is the lowest portion of the effectively horizontal structural elements supporting the floors and walls of the structure. Respondent's examination of the application raised concerns about the proposed structural elevation of 19 feet NGVD. The greater elevation of much of the dune under the footprint of the house would necessitate the relocation of dune materials on the lot or removal of dune materials off the lot. However, discussions between Respondent's representative and Mr. Bullard, Petitioners' engineer, failed to identify design modifications upon which both sides could agree. Thus, on June 5, 2000, Respondent issued a Final Order and Notice to Proceed Withheld (Final Order). The Final Order states that Respondent found that Petitioners' application was complete on March 6, 2000. Although the Final Order generally contemplates that construction will eventually proceed, Special Permit Condition 1 prohibits construction until Respondent issued a written notice to proceed. Special Permit Condition 2 warns that Respondent will not issue a notice to proceed until Petitioners submit plans that raise the structural elevation to 24 feet NGVD, relocate all excavated materials seaward of the coastal construction control line (but not more than 120 feet seaward of the line), prohibit net excavation seaward of the coastal construction control line, and specify the planting of all filled or disturbed areas with salt-resistant native vegetation transplanted from onsite areas that will be excavated and other sources, as needed. Special Permit Condition 7 requires Petitioners to obtain the fill material from a source landward of the coastal construction control line. The fill material also must be of a sand that is similar to that onsite in terms of grain size and coloration. However, nothing in the Final Order specifies any requirement to replicate present--or design scientifically verified new--seaward and landward slopes of the portion of the impacted dune. In resisting Respondent's demand to raise the structural elevation, Petitioners have sought to reduce the slope of their driveway, which involves traffic-safety issues in turning on and off busy South Atlantic Avenue, and eliminate the need for an extensive design modification to allow wheelchair- bound persons access to the house from the garage. At the hearing, Petitioners offered mitigation in the form of an artificial dune to be constructed seaward of the residence with excavated materials. However, this proposal would destroy existing vegetation and failed to specify slopes, so that the artificial dune would likely suffer significant and rapid erosion. Petitioners have failed to prove that their proposed construction activities, with a structural elevation of 19 feet NGVD, would not adversely impact the most prominent dune landward of the ocean, so as to reduce the existing ability of this dune to resist erosion and protect upland persons and property.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing Petitioners' challenge and issuing the Final Order and Notice to Proceed Withheld dated June 5, 2000. DONE AND ENTERED this 7th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2001. COPIES FURNISHED: David P. Struhs, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Robert R. Bullard, P.E. Qualified Representative Absolute Engineering Group Post Office Box 269 Daytona Beach, Florida 32115 Francine M. Ffolkes Senior Assistant General Counsel Timothy E. Dennis Certified Legal Intern Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact 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
