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 Should permit application number WL-237 be approved.
Findings Of Fact (Preliminary Background) Prior to hearing, the parties entered into an agreenent stipulating certain facts as follows: On August 6, 1982, Respondent issued Permit No. WL- 69 to a Mr. Warren L. Lisenbee on behalf of Hadera, Inc. for the construction of a three-story, five-unit multi-family dwelling between approximately 163 feet and 263 feet west of Respondent's reference monument R-09 in western Walton County, Florida. On December 29, 1982, the CCCL (Coastal Construction Control Line) was re-established in Walton County which resulted in a landward relocation of the control line by approximately 82 feet on the subject property. On June 16, 1983, Hadera, Inc. transferred the property to M & T Construction Company, Inc. by Warranty Deed. On October 1, 1983, Section 161.053(4), Florida Statutes, as amended, became effective. Respondent notified Mr. Young, President of M & T Construction Company, Inc., by letter dated July 3, 1984, that Permit No. WL-69 was going to expire on August 6, 1984 and sent Mr. Young a request form for a time extension. On July 16, 1984, Respondent received a time extension request from Mr. Young. No construction activity covered under Permit No. WL-69 had commenced as of July 16, 1984. On July 26, 1984, the Executive Director of Respondent denied the request for time extension. On August 7, 1984, Mr. Young reapplied for the same construction activity on the same property as was previously approved by the Governor and Cabinet, sitting as the head of Respondent, on August 3, 1982 ((Permit No. WL- 69). On August 9, 1984, Mr. Young's Application No. WL- 160 was deemed complete by Respondent's staff. On September 8, 1984, Mr. Young received notice of Respondent's intent to deny the Application No. WL-160, a copy of the draft agenda item and notice of setting the matter on the September 20, 1984 agenda of the Governor and Cabinet and of the Cabinet Aides meeting on September 12, 1984. On September 20, 1984, Respondent received the Petition for Administrative Hearing, pursuant to Section 120.57(1), Florida Statutes, regarding the denial of Application No. WL-160, the matter was removed from the Governor and Cabinet's agenda pending an administrative hearing. On Novenber 15, 1984, Respondent received a Petition for Administrative Hearing, pursuant to Section 120.57(1), Florida Statutes, regarding the denial of the reguest for a one-year time extension of Permit No. WL-69. On September 30, 1985, a stipulation and agreement was signed granting a one-year time extension of Permit No. WL-69 and reducing the project to five (5) units, 80% parallel shore site coverage with a dune management plan to replace vegetation in front of the structure, construct a sand fence, and replace eroded sand in future storms. The two pending administrative hearing cases were dismissed pursuant to the agreement. On March 5, 1987, all items submitted per the stipulation agreement and the placard and approved plans were issued and the time extension for Permit No. WL-69 began running. Notice was given that no extensions of Permit No. WL-69 would be authorized beyond March 5, 1988. On December 10, 1987, Mr. Young reguested by telephone a sixty-day time extension of Permit No. WL-69. By letter dated December 30, 1987, the Director of the Division of Beaches and Shores notified Mr. Young that no further time extensions could be authorized beyond March 5, 1988, pursuant to Section 16B-33.017(5), Florida Administrative Code. On February 8, 1988, Mr. Young telephoned Brett D. Moore, P.E., Engineer Supervisor, Bureau of Coastal Engineering and Regulation, to discuss options available to him at that time. In February, 1988, Mr. Young had pilings installed, pursuant to Permit No. WL-69. On March 5, 1988, Permit No. WL-69 expired. Mr. Young submitted application for Permit No. WL- 237 on August 2, 1988. This permit application was for the construction of a five-unit, three- story townhouse condominium, associated minor structures, and fill. The Executive Director agendaed the application for consideration before the Governor and Cabinet, as head of the Department of Natural Resources, on December 6, 1988. The recommendation was made by Respondent's staff for approval of the permit application. On December 30, 1988, a Final Order was entered denying Permit No. WL- 237. A Petition for Administrative Hearing was timely filed with Respondent on December 27, 1988. The proposed project for Permit No. WL-237 is not expected to interfere with lateral public beach access. The proposed three-story, multi-family dwelling structure in Permit No. WL-237 is designed in accordance with Subsection 16B-33.007(3) and (4), Florida Administrative Code, to resist adequately the natural forces associated with a 100-year interval storm event. The proposed minor structures contained in Permit No. WL-237 are designed in accordance with Subsection l6B- 33.007(5), Florida Administrative Code. The proposed project in and of itself is designed to have no additional adverse impact on adjacent properties. FINDINGS BASED UPON EVIDENCE (General Facts) Petitioner was unable to obtain financing to build the units under the original permit, No. WL-69, and subseguent permit, No. WL-160, due to poor economic conditions in Walton County. (T-16). With no sales or financing, Petitioner could not build the units. (T-18). Economic conditions have since improved in Walton County; and Mr. Young, as President of M & T Construction Company, Inc., has five current contracts for sale in effect on these units and construction financing. The 40-foot pilings were legally installed on site to a depth of 30 feet pursuant to WL-69. The Department of Natural Resources refused to extend WL-69 after installation of the pilings which forced the Petitioner to file a new application, No. WL-237. Application WL-237 is for capping the pilings already installed, constructing a multifamily dwelling on top of the pilings, construction of a retaining wall running east and west against the most northerly of the pilings to retain fill between U.S. Highway 98 and pilings for parking, the construction of dune walkovers, planting of vegetation, and the installation of sand fences as required in a special provision. (T-65). There are no other structures proposed for underneath the structure; the ground is to be left "as is" around and among the pilings. (T-75). (Pedestrian traffic underneath the structure could be precluded by the design" of the structure). (T-105) Construction on the beach has a number of impacts. During actual construction, grasses on the site are trampled; however, that is temporary. The principal direct impacts are the result of installing the pilings, which was legally done. It would not be desirable to remove the pilings at this time. (T-65, 66, and 234). The project is located in Miramar Beach, south Walton County, Florida. (T-15). The project site is located two miles east of the west county line for Walton County and approximately 100 feet west of marker R.9 as shown on Petitioner's Exhibit 8 and Respondent's Exhibit A. There is a very high substantial dune approximately 200 feet from the coast. U.S. Highway 98, the hard-surfaced road running east and west along the coast in both exhibits, is located on the top of this primary dune at the proposed site. U.S. Highway 98 runs along the top of this dune for approximately two miles and then the dune and the coast road diverge and the dune `becomes less continuous. (T-61). The CCCL is located approximately along the right-of-way of U.S. Highway 98. This project cannot be located more landward and is located waterward of the CCCL because the proposed buildings are within one or two feet of the property line, which is the southern edge of the right-of-way of U.S. Highway 98. (T-77, see Petitioner's Exhibit 8). The elevation of the road in the vicinity of the site is well in excess of 20 feet. The elevation of the land behind the road is similar to the elevation of the road. Therefore, the dune line upon which the road is built is the major rise in the topography of the beach area. (T-61). There is a frontal dune in the area of the proposed site located closer to the water. (T-62). This frontal dune has an elevation of 8-12 feet, is vegetated, and is subject to the effects of storm and weather conditions more frequently that the primary dune. (T-62). This frontal dune offers protection to the primary dune in lesser storms. The property located to the east of the site of this application is a six-unit residential structure built in 1980 or 1981, almost identical to the proposed structure at issue in this permit. (T-29, 54). The adjacent property on the west is a 100-foot lot owned by Sea Cabins Condominium Association with a gazebo and beach access located on it. (T-29-30). The gazebo is owned by Sea Cabins Condominium Association, which is located north of the site across U.S. Highway 98 from the gazebo. The use of the land upon which the gazebo is constructed is subject to the restrictions of the condominium association, and nothing can be built on it without a vote of all members of the Sea Cabins Condominium Association. There are approximately 40 units at Sea Cabins Condominium Association. (T-30-31, Petitioner's Exhibits 5 and 7). To the west of the gazebo on the beach south of U.S. Highway 98 is the property of the high-rise condominium located north of U.S. Highway 98 and just west of Sea Cabins Condominium Association. This condominium, together with its elevated pedestrian overpass of U.S. Highway 98, can be seen with the other referenced structures in Respondent's Exhibit D. The construction does not further jeopardize adjacent structures. (T-60). (Stipulation, p. 4-5). Mr. Young has received the permits necessary for construction from the Florida Department of Transportation and Walton County for the construction involved in WL-237. (T-18). (Special Conditions for WL-237) The Respondent wrote and initiated the following special conditions on application WL-237, to which Petitioner agreed. (Joint Exhibit 5, T-21-25, and T-219). The employment and maintenance of sand fencing capable of stabilizing and retaining the volume of sediment residing in the dune face at the time of construction. The volume of sediments and location of the sand fencing will be referenced on an approved site plan incorporated as a part of this permit. The implementation of a dune-stabilizing vegetation program seaward of the project as designated on the approved site plan subsequent to construction. The vegetation shall be planted throughout the designated area(s) in staggered rows a maximum distance of 18 inches apart, prior to expiration of the permit. The permittee shall irrigate and apply fertilizer as appropriate for the particular species planted, at least until the vegetation is established (usually approximately two years after planting). At least a 75% survival rate of the vegetation shall be insured and replanting shall be conducted until' a 75% overall survival rate is attained, and until any sizable barren portions of the area(s) are covered. In the event of natural storm induced erosion of sediment existing within the dune face, below th proposed structure, or within the dune maintenance area, compatible materials shall be deposited and stabilized as referenced above to restore the area to its prestorm condition. Petitioner also agreed to design and build a dune walkover where the people from the units could walk over the dune to access the beach. (T-25-26). Petitioner also agreed to fill in and extend the frontal dune across the property to one side of the proposed structure. (T-47). If the material is of good quality and replacement is carried out in a careful manner, the direct impacts of artificial fill are minor. (Deposition of Dr. Dean, March 15, 1990, p. 6) (Grounds for Denial) The permit was denied by the Department of Natural Resources because of the direct impacts and cumulative impacts of this proposed construction on the coastal dune system on the site of the proposed construction. (T-60). (Joint Exhibit 4). There are two types of direct impacts; those impacts occurring during normal conditions and those occurring during severe storms. (T- 66) (Dunes) For the western 10,000 feet of Walton County, to include the proposed site, the beach configuration is marked by high sand dunes over 20 feet high, approximately 150-200 feet from the water line. This primary dune is protected in many areas by one or more lower frontal dunes. These frontal dunes provide protection to the primary dunes by taking the energy of small storms. The primary purpose of dunes is to provide a reservoir of sand which can be transported offshore to form offshore sand bars which serve as natural breakwaters to slow and dissipate the energy of the waves. If the sand is not present to be transported offshore, then the erosion of the dune profile is much greater. (T-246). If the storm is large enough and lasts long enough, the shore will reach a state of equilibrium. However, this would probably take a storm of several weeks duration. During storms, elevated water levels and elevated wave height cause erosion of the normal beach profile. Sand is transported offshore and deposited in a mound called the longshore bar. The longshore bar acts as an offshore bar which breaks the waves, thereby decreasing the wave energy and their erosional process. (T-244). After the storm, the offshore bars formed from the eroded sand are uncovered during low tide and the wind blows the sand back onshore, rebuilding the dunes. A beach profile is a cross-section of the topography of the coast line, both underwater and above water. The frontal dune is a formation that tends to develop along that part of the coast. (T-279,280) There is a frontal dune on the property at an elevation of approximately 8-12 feet between markers R-8 and R-9, in the vicinity in which the proposed projected is located. (See Petitioner's Composite Exhibit 9 and T-278). The frontal dune is patchy in areas, but it does exist; and the area is characterized by the tendency to develop frontal dunes, as shown in the Walton County profiles. (T-283, See Petitioner's Composite Exhibit 9). There is a frontal dune ridge appearing on Walton County profiles R-7 and R-8, near Petitioner's property. (T-279). The profile of the coast at the proposed site shows that the land rises from the water's edge to the frontal dune which has an elevation of 8-12 feet. It then drops down slightly and abruptly rises into a very high primary dune with an elevation in excess of 22 feet. U.S. Highway 98 is constructed along this primary dune line at the area where the subject site is located. The frontal dune provides protection for the primary dune for all but the most severe storms. It is a more active portion of the dune system than the primary dune and, in fact, was destroyed during the last hurricane and has re- established itself along most of that area. (See Petitioner's Composite Exhibit 9, Deposition of Tackney, `March 23, 1990, p. 5). In a 100-year storm, all the experts agreed that the frontal dune would be washed away and significant erosion would occur to the primary dune. The agency's expert, Dr. Robert Dean, prepared an exhibit (Respondent's Exhibit D) which showed the extent of this erosion based upon his assumptions concerning the impact of pre-storm erosion. While the Petitioner's expert did not agree with the extent of the erosion depicted in, Respondent's Exhibit D, he concurred that a major storm would erode the dune enough to endanger or damage U.S. Highway 98. The Petitioner's expert indicated that this erosion would occur without regard to the proposed project. Vegetation plays a part in the dune generation process by trapping the windblown sand and as the vegetation grows, stabilizing the dune by the root matrix left in the dune. The beach dune system can be impacted by the loss of vegetation because the absence of vegetation leaves the sand susceptible to being transported further landward. When this occurs, the sand is no longer present as a reservoir which can be transported offshore in a storm. (T-245- 46). This results in greater erosion to the coast. (Direct Impacts - Normal Conditions) The agency's expert pointed out two adverse direct impacts which occurred during normal conditions: destruction of vegetation and accelerated windborne transportation of the sand inland. The vegetation is killed by trampling during construction and by cutting off sunlight to the existing vegetation by construction of the building. The construction, according to the agency's expert, raises the velocity of the wind and accelerates the rate and quantity of sand blown inland from the primary dune. (T-135, 245-47, 268). Revegetation, a special condition of WL-237, would replace vegetation killed by the trampling during construction. However, revegetation would not solve the problem of the low- light conditions created by the building's shadow. However, this problem would be limited to an area under the structure smaller than the footprint of the building because direct light penetrates under the house as the sun moves across the southern sky during the day. There are no structures to prevent sunlight from penetrating to the significant slope under the structure which faces due south. The assessment of the agency's expert also does not take into account vegetation which prefers low- light conditions. The Petitioner's expert agreed that the construction of the building will have an adverse effect upon some of the vegetation in the area. However, that impact would be lessened by revegetation of the dunes, construction of walkover structures, and sand fencing. Sand fencing, made of wire with lath between them, will be placed underneath the pilings, as required by the special conditions in the permit. (T-74-75) (Joint Exhibit 4, special conditions) . The Respondent promotes sand fence placement as sand fences have been observed to be effective in intercepting windblown sand and in assisting in the process of dune formation. (T-211). The larger the frontal dune is, the more protection it offers to the primary dune. (T-188-89; Dean at 4-5). There is conflict in the testimony whether the sand would be trapped under the house by the sand fences. The agency's expert opined that high wind velocities would scour sand from underneath the structure during normal conditions. The Petitioner's expert testified that sand fences and walkovers would prevent or reduce radically the loss of sand from under the structure preventing the Department's predicted erosion during normal conditions. Nothing in the permit application or additional special conditions would prevent traffic or the placement of storage items beneath the structure. (J2-May 6, 1986 letter to Tom Young; J4). No provision is made in the permit for replacement of sand due to erosion losses during normal conditions. (J4; T- 189-90, 285; Dean at 6). The testimony of Petitioner's expert is deemed the more credible. The erosion of sand from underneath the structure will be halted by the use of sand fences; the damage to dunes and dune vegetation will be minimized by walkovers; and the damage caused by construction will be repaired through revegetation and fill. The sand will remain under the building, even if the vegetation dies, retained there by the sand fencing and surviving vegetation. The impact of the proposed project on windblown scour and vegetation during normal conditions is found to be negligible. (Rainwater Erosion) In order to meet the county's stormwater requirements, the surface of the parking area is to be graded and runoff directed away from the highway and the side of the building. The runoff is from the highway and the building and was not created solely by the proposed structure. (T-277). Pictures of conditions at the adjoining structure were introduced to show the erosion which can be caused by storm water runoff; however, the conditions depicted reflected a improperly designed and constructed drain system which had not been maintained. Storm water runoff problems can be avoided or corrected by handling the problem appropriately in the first instance. (T-277). (100-year storm impacts) A 100-year storm; i.e., a storm with conditions which would occur once in a 100-year period, would impact the entire area. The proposed structure would be built to code standards, and it is stipulated that a structure built to code standards is built to survive the hypothetical 10 0-year storm without serious damage. The damage done by a storm is dependent upon the flood elevation of tides generated during the storm and the duration of the storm. Fortunately, the factors which make storms severe are the factors which make storms short. During a 100-year storm, water will not overtop the road on the primary dune. A 100-year storm would cause major erosion to include complete loss of the frontal dune and erosion to the primary dune. In the event of a 100-year storm, there will be damage to the primary dune regardless of the pilings or the proposed structure. (T-210) (T-87). The northerly extent of the erosion is alleged to be increased by the pilings, according to the Respondent's expert. 61. Maximum tidal elevation is predicted to be 11-11.5 feet during a 100-year storm. Water would be up under the structure and would wash around the pilings, which is contemplated in the design of the structure. There will be some localized water-induced scour around the pilings. Scour effect around each piling is localized to this particular site and would not affect the situation on either side of the building. (T- 73,88). However, the deeper the erosion, the more northerly its intrusion. There is a conflict about the factors effecting this scour and the extent of the northerly erosion. Respondent's Exhibit D purports to graphically present the erosion caused by the proposed project by presenting the erosion caused by a 10 0-year storm using the topography of the site next door. The Respondent's expert based his projection upon three separate conditions impacting inland erosion: conditions prior to the installation of the pilings; conditions with pilings, and conditions with the frangible retaining wall constructed as indicated. The exhibit compares pre-storm profiles with post-storm profiles under the three conditions described without considering the mitigating effect of any of the special conditions. Respondent's Exhibit D uses an elevation significantly lower than the actual existing profile as a pre-storm profile with piles installed to allow for the wind scour under normal conditions. This red, dotted line was labeled at a conference with counsel for the parties as "Post Construction, Pre-Storm." The Respondent's expert did not explain how he quantified his assumptions about wind scour under normal conditions. The Respondent's expert also deducted two feet from the "Post Construction, Pre-Storm" line to adjust for water- induced scour, which he had estimated as two feet. This solid red line was labeled "Scour Adjusted Profile." Using these assumptions, the computer model plotted the northward limits of erosion for the pre-construction assumptions and post- construction, pre-storm, and scour-adjusted assumptions. The first of these two dotted lines was labeled "Pre-construction" and colored green, and the second was labeled "Post Construction w/2 ft Scour" and colored red. The Respondent's expert then computed a third northward erosion limit based upon the acceleration of erosion due to the frangible retaining wall installed on the northern pilings to retain fill used to create a parking area between the structure and U.S. Highway 98. This is the black dotted line labeled "W/Wall." The experts disagreed about the impact of the frangible retaining wall. The Respondent's expert opined that the wall would accelerate the erosion. (Sea Respondent's Exhibits G and D). The Petitioner's witness opined that the wall would collapse prior to any adverse or accelerated impact on erosion. (T-94,95, and 282). The base of the frangible wall is about 11 feet above the water line, or about the height of the highest projected flood tide. The wave action along the shore as the water rose would undercut the bottom of the wall in a severe storm and it would disintegrate. Petitioner's evidence is more credible on this issue, and the projected erosion as a result of wash around the wall (black dotted line labeled "W/Wall") is not considered as the most credible evidence. Having found that the agency's assumptions regarding windblown scour and the acceleration of erosion due to the retaining wall are not well founded, the projections based upon these assumptions are disregarded also. The "Post Construction, Pre-Storm Profile", the "Scour Adjusted Profile", and erosion acceleration model are rejected, together with their resulting northerly erosion profiles, "Post Construction w/2 Ft Scour" and "W/Wall." When windblown scour is disregarded, the post construction, pre-storm profile would be the same as the pre- construction, pre-storm profile. Adjustment for water-induced scour would result in a line two feet below the pre-storm, pre- construction profile approximately one-third the distance between the green solid line and the red dotted line. The amount of northerly erosion is apparently proportional to the elevation of the beach; therefore, the northerly limit of' inland erosion attributable to the pilings would be approximately one-quarter the distance from the "pre-construction" limit to the "post construction w/2 ft scour" or slightly more than one foot. based upon scaler measurement of Exhibit D. The granting of the application to construct a building on the existing legally installed piling will have no appreciable impact on the dune system. (Impact on Dune Recovery) When a 100-year storm event occurs, the dune will have difficulty reestablishing because the natural mechanisms for regenerating the dunes are reduced. (T-285). If the dune system is damaged by a storm, the property owners are required to restore the beach to its pre-storm condition. (T-69 and T-73) The special conditions provide that the property owner must buy sand, haul it in and restore the dune system in accordance with the Respondent's requirements. (T-69 and Joint Exhibit 4). 285). Therefore, the long-term affects of this construction would not be significant. (T-70). (Cumulative Impact) The Respondent originally recommended approval of Permit No. WL-237. Mr. Kirby Green, Division Director, Division of Beaches and Shores, overturned the staff's recommendation of denial and approved the permit. (T-277). The Governor and Cabinet, sitting as the head of the Department of Natural Resources, denied the permit. (Joint Exhibit 3). The Governor and Cabinet were apparently concerned with the cumulative impact of continued development. (See transcript of Cabinet Meeting). Mr. Green testified that he would still recommend that the permit be issued based upon the equities. (T-230). "Cumulative impact" is statutory language adopted in the Florida Statutes in 1983. (Stipulation). The rules adopted by the agency provide, "The Department may not authorize any construction of activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event. An exception to this policy may be made with regard to those activities undertaken pursuant to Subsections 16B- 33.005(3)(d) and 16B-33.006(5)(c) , Florida Administrative Code." Section 16B-33.005(3)(d), supra, permits construction of shore protection structures "....which close the gap between the adjoining rigid coastal or shore protection structures to the limit of physical impact to the property from those structures". Section 16B-33.006(2), supra, addresses permits issued by the Governor and Cabinet "when they clearly justify a permit." The criteria relating to "cumulative impact", as applied by the agency, preclude the granting of the "first" permit, if, in the opinion of the Department, the Governor and the Cabinet, additional similar permits would threaten the beach or dune system or its recovery potential following a major storm event. The criteria relating to cumulative impacts have not been quantitatively analyzed and codified by the Respondent. Except as stated above, "cumulative impact" is not further defined by the statutes or rules, and the methodology of. assessing cumulative impact is not set forth. The Respondent has funded a study to quantify cumulative impact; however, at this point, it-has not published its results, and this project will not be completed in the next 30 months. (T-2311-232) There is no guidance to applicants about how to address cumulative impacts or what sphere of influence to address. (T-115). Since there are no quantifiable definitions of cumulative impact, the agency's witnesses could not say how large a segment of beach they would include in their assessment. (T- 271). Staff analysis of cumulative impacts was termed an intuitive type of analysis. (T-23). In the absence of defining the segment of beach which should be considered, it is concluded that permit applications are subjectively evaluated. (T-82). (Beach Segment for Cumulative Analysis) Respondent's Exhibit A is an aerial photograph of the location of the proposed construction. North is to the top of the picture, and east is to the right of the picture. On this photograph, the proposed site is marked with a "D" and the proposed structure and those previously constructed to the east of the proposed structure are shown in red. The gazebo is shown immediately to the west of the proposed structure. The high-rise condominium is not shown but would be located generally to the west of the Sea Cabins Condominiums north of U.S. Highway 98, which are shown. The high-rise condominium has a pedestrian overpass over U.S. Highway 98 which services the condominium's beach immediately west of the gazebo shown in the picture south of U.S. Highway 98. The beach, waterline, and U.S. Highway 98 in the vicinity of the proposed construction is clearly shown. The depth of the property between U.S. Highway 98 and the water narrows to the west of the proposed project, gazebo, and condominium beach to its narrowest point due mouth of the divided paved road which intersects U.S. Highway 98 from a northerly direction. From this point, the property between the road and water begins to widen; and a single-family residence is shown slightly to the west and south of the intersection referenced above. A picture of this residence was introduced as Respondent's Exhibit B4. The beach shown on this aerial photograph is the relevant beach segment because it shows the narrowing and widening of the beach in the area of concern. The agency's witness indicated that the depth of the beach area is the critical determinant. The existing single-family residence is the same distance west of the narrowest point that the proposed project is to the east. The gazebo and condominium beaches lie between the proposed project and the narrowest point. Development of the property between the proposed project and the narrowest point is very highly unlikely because this area is the bathing beach for two multi- unit condominium projects. All of the property east of the narrowest point, except the proposed site, has already been developed as multi- family dwelling sites or multi-unit condominium bathing beaches. To the west of the narrowest point, a single-family residence has already been constructed. (T-83). (Parallel Coverage) The parties settled their prior controversy by entering in to a Stipulation and Agreement whereby the Respondent agreed to a one-year extension of the permit If Petitioner agreed to reduce from 90% to 80% shore parallel site coverage, maintain a dune management plan, construct a sand fence, and replace eroded sand in future storms. (Joint Stipulation at 3). Analysis of shore parallel coverage for sites by the agency is an attempt to limit widths of structures and allows dune preservation between structures. (T-142).
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the application be approved with the added special conditions. DONE AND ENTERED this 6 day of June, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 6 day of June, 1990.
Findings Of Fact The subject property Petitioners, Michael and Janice Rush, are the owners of a single family residence located at 3032 North Atlantic Boulevard, Fort Lauderdale, Broward County, Florida. Such residence lies seaward of the Broward County Coastal Construction Control Line (CCCL) and is therefore subject to the permitting jurisdiction of respondent, Department of Natural Resources (Department). Section 161.053, Florida Statutes. The first application In April 1991, Petitioners filed a permit application (Permit File No. BO-267) with the Department for permission to renovate their home and construct a swimming pool. That application was found to be incomplete, and by letter of April 17, 1991, the Department notified petitioners of the information required to complete their application. Following receipt and review of the requested information, the Department, by letter of July 26, 1991, advised petitioners that, as proposed, their application to construct a pool and renovate the home would have to be denied. Pertinent to the proposed pool, such letter observed that a portion of the pool would be located seaward of the 30-year erosion projection which is prohibited 1/, the general construction line of major structures would be advanced further seaward, adverse impacts to the beach/dune system during a major storm event could be expected, and cumulative adverse impacts could be expected. Thereafter, by letter of August 14, 1991, the Department was advised that petitioners were submitting new house plans for the subject property, and that the request for leave to construct the pool had been removed from their application. 2/ On December 23, 1991, the Department issued a final order in Permit File No. BO-267 which authorized the petitioners to remodel their home. Such final order observed: . . . The direct and cumulative impacts to the beach and dune system that will be caused by both the seaward location and shore- parallel width of the proposed construction represent the maximum such impacts that are acceptable to the Department. Therefore, future construction on the site seaward of the coastal construction control line shall not extend further seaward of, or increase the shore- parallel coverage occupied by, the proposed structures approved pursuant to this permit. The pool, which petitioners had initially proposed to construct seaward of the home, but subsequently deleted from their plans, constituted a major structure, albeit nonhabitable. Rule 16B-33.002(54)(b), Florida Administrative Code. Petitioners were expressly advised by the Department of their right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, to contest the provisions of the final order. No such contest was filed. 3/ The pending application On February 20, 1992, petitioners filed a new application (Permit File NO. BO-289) with the Department for permission to construct the swimming pool on their property. As proposed, the pool would be located in the beach-dune system seaward of petitioners' home, as well as seaward of an existing retaining wall on the petitioners' property. The pool would measure 16.0' x 35.7' externally, be constructed of reinforced gunite, and be supported by ten piles. The alignment of the pool would be in the shore parallel direction, rather than the shore normal direction as proposed in the prior application, thereby placing the pool landward of the 30-year erosion projection. By letter of March 8, 1992, the Department advised petitioners that their application was incomplete, and requested additional information. Petitioners submitted the final information necessary to complete their application on July 21, 1992. By letter dated October 7, 1992, received by petitioners' representative on October 13, 1992, the Department issued a public notice as follows: The referenced application for a permit pursuant to Section 161.053, Florida Statutes, has been placed on the agenda of the head of the Department of Natural Resources (Governor and Cabinet). The application will be reviewed by the Cabinet Aides in the Cabinet Meeting Room on the lower level of the Capitol, at 9:00 a.m., October 14, 1992. The application will then be heard by the Governor and Cabinet in Room LL03 of the Capitol, at 9:00 a.m., October 20, 1992. You may attend these meetings if you desire. The recommendation [for denial] shown on the enclosed agenda item has been made to the head of the Department by the Executive Director. This represents an agency determination. . . . The notice, consistent with the provisions of Rule 16B-33.012(8), Florida Administrative Code, further advised that any substantially affected person had the right to request a formal hearing, pursuant to Section 120.57, Florida Statutes, within 21 days of receipt of the notice, and that "If the decision of the Governor and Cabinet is different from the staff recommendation as noticed . . ., then the applicant or any substantially affected person shall have 21 days from the date of the Governor and Cabinet's announcement of their decision in which to petition the agency for a hearing." The basis for the Department's denial of petitioners' application to construct the swimming pool was stated as follows: The proposed swimming pool is not consistent with Rule 16B-33.005(1), Florida Administrative Code, because it has not been clearly justified by the applicant and less impactive alternatives are available. For example a similar structure could be sited in a less impactive location landward of the single-family dwelling on the southwest corner of the property. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(a), Florida Administrative Code, for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(c), Florida Administrative Code, for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties. The proposed swimming pool is inconsistent with Paragraph 161.053(5)(b), Florida Statutes, because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area. The proposed swimming pool is inconsistent with Rule 16B-33.007(1), Florida Administrative Code, because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shore line fluctuations and to preserve dune stability and natural recovery following storm-induced erosion. The proposed swimming pool is not designed pursuant to Rule 16B-33.007(2), Florida Administrative Code, to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system. * * * 8. The proposed project is not designed pursuant to Rule 16B-33.005(7), Florida Administrative Code, because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event. The Department, therefore, may not authorize the construction of the pool. On October 13, 1992, petitioners requested that their application be removed from the agenda, and be rescheduled for "a later date to be determined." The rationale for petitioners' request was to afford "an opportunity for the permittee and staff to meet in Tallahassee in early to mid November and reach a design for a pool which can be recommended favorably by staff." By letter of October 14, 1992, the Department granted petitioners' request and the item was removed from the agenda for the Governor and Cabinet meeting of October 20, 1992. Such letter further provided that although the Department was willing to meet with petitioners to discuss the staff concerns about their application, that it "must caution you . . . that at this time I do not anticipate that a swimming pool, as you requested, can be satisfactory [sic] located seaward of your home." Petitioners and the Department were unable to resolve their dispute. Accordingly, petitioners filed a petition on November 2, 1992, to contest the proposed denial of their application. By letter of November 13, 1992, the Department advised petitioners that their request for formal administrative hearing was inadequate, but accorded them 14 days from receipt of such letter to submit an appropriate request. Petitioners timely submitted an appropriate request for hearing on November 30, 1992, and the matter was thereafter referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. 4/ The merits of the pending application As heretofore noted in the findings of fact, the Department enunciated seven reasons to support its denial of petitioner's application. The first basis for denial was the Department's assertion that the proposed swimming pool was not consistent with Rule 16B-33.005(1), Florida Administrative Code, "because it has not been clearly justified by the applicant and less impactive alternatives are available." In this regard, it is observed that Rule 16B-33.005(1), Florida Administrative Code, provides: . . . Establishment of a coastal construction control line . . . does not preclude all development of or alteration of coastal property seaward of such lines. However, activities seaward of a coastal construction control line . . . shall be limited and the necessity of such development, construction or alteration shall be stated and clearly justified by the applicant. (Emphasis supplied) The aforesaid rule does not further explain what is contemplated by the requirement that the applicant clearly justify the "necessity" of the proposed development; however, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary. 5/ In this regard, "necessity" is defined to mean "something that cannot be done without." Websters New Twentieth Century Dictionary. It is also defined as "something needed for the existence, effectiveness, or success of something (a requirement)," and "the state or fact of being required or unavoidable." The American Heritage Dictionary of the English Language. Here, the proof fails to demonstrate any "necessity" to construct the swimming pool since it fails to credibly support the conclusion that such construction is required for the effective or reasonable use of petitioners' property or that such construction is essential for the well-being of its occupants.6/ To the contrary, the petitioners' decision to construct the pool is merely a matter of personal preference or convenience. Moreover, the proof fails to demonstrate any "necessity" to construct a pool of the size and configuration proposed (16' x 35.7' with a maximum depth of 8') or of the materials selected (reinforced gunite supported by piles). Indeed, a pool of a different configuration or size could be located elsewhere on the property and the pool could be constructed on a base slab foundation or of vinyl to alleviate the adverse effects of its current design, discussed infra. 7/ As further reasons for denial, the Department concluded that construction of the swimming pool was not consistent with Rule 16B-33.005(2)(a), Florida Administrative Code, "for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade"; Rule 16B-33.005(2)(c), Florida Administrative Code, "for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties"; Rule 16B- 33.007(1), Florida Administrative Code, "because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shoreline fluctuations and to preserve dune stability and natural recovery following storm-induced erosion"; and Rule 16B-33.007(2), Florida Administrative Code, "to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system." Pertinent to the aforesaid reasons for denial, Rule 16B-33.005(2), Florida Administrative Code, the "Department Policy Statement on Permits," provides: Seaward of the coastal construction control line . . ., special siting, structural and other design considerations are required: (a) for the protection of the beach-dune system; * * * (c) for the protection of adjacent properties. And, Rule 16B-33.007, Florida Administrative Code, the "Structural and Other Requirements Necessary for Permit Approval," provides: The proposed structure or other activity shall be located a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and natural recovery following storm induced erosion . . . . All structures shall be designed so as to minimize any expected adverse impact on the beach-dune system or adjacent properties and structures and shall be designed consistent with Section 16B-33.005, Florida Administrative Code. Relevant to such rules, the proof demonstrates that the frontal dune on the subject property appears to have been leveled at an elevation of approximately +12.0 feet NGVD, and petitioners' home is located on top of the crest of the frontal dune. The seaward slope of the frontal dune begins at the seaward face of the house and slopes down to the beach. Approximately 12 feet seaward of the house is an existing retaining wall. The proposed pool will be sited immediately seaward of such wall and therefore on the seaward slope of the frontal dune. The proposed pool is a pile supported concrete swimming pool with exterior dimensions of 16.0' shore-normal by 35.7' shore-parallel, and a maximum depth of 8.0'. The foundation is specified to be auger-cast piles, which will penetrate to an elevation of -23.0' NGVD or 3' embedment where a rock layer is encountered. The elevation of the pool is proposed at +13.0' NGVD, with a bottom elevation of +4.0' NGVD. As designed and sited, construction of the pool would destabilize the dune, hinder its function of protecting upland development during a storm event, and adversely affect natural shoreline fluctuation and recovery following storm induced erosion. In this regard, the proof demonstrates that the location of the pool seaward of the existing retaining wall would interrupt the natural continuity of dune formation because sand would accumulate seaward of the pool in a less stable location and would impede the accumulation of sand on adjacent properties. Construction of the pool, as designed and sited, would also induce scour during the course of a storm event impacting the structure. Such storm- induced scour, in addition to erosion, would cause the loss of additional sand at the vicinity of the structure, robbing the beach-dune system of additional sand necessary to protect upland structures, and would also contribute to the potential failure of the structure itself and other upland structures. In this regard, the proof demonstrates that approximately 1,000 cubic yards of sand would be lost on petitioners' section of the beach in the event of a 10-year storm. Additionally, structure-induced scour of 77.5 cubic yards from the ten piles, 120.4 cubic yards from the pool shell, and 15.8 cubic yards from the "end effects" of the pool (the amount of structure-induced scour from the ends of the structure) might reasonably be anticipated in the event of a 10-year storm. If the pool were to be impacted by a higher frequency storm, such as a 20-year or a 100-year storm, scour and erosion would increase. 8/ As an additional basis for denial, the Department concluded that construction of the pool was not consistent with Section 161.053(5)(b), Florida Statutes, "because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area." Here, the proof supports the Department's conclusion. As its final basis for denial, the Department concluded that construction of the pool was not consistent with Rule 16B-33.005(7), Florida Administrative Code, "because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event." Pertinent to the aforesaid basis for denial, Rule 16B-33.005(7), Florida Administrative Code, provides: An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site; however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event . . . . Here, petitioners' project is expected to have significant adverse impacts to the beach-dune system as a consequence of its design and siting. Accordingly, the provisions of Rule 16B-33.005(7), Florida Administrative Code, are not relevant. Moreover, there was no proof concerning any similar structures along the coast, existing or proposed, that would contribute to or intensify the degradation of the beach-dune system occasioned by the proposed project. Accordingly, it cannot be concluded that cumulative impact is a relevant issue in these proceedings. While cumulative impact is not relevant to the pending application, the other reasons advanced by the Department for denial of the application have, as heretofore found, a rational basis in fact. Under such circumstances, petitioners have failed to demonstrate their entitlement to the subject permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioners' application to construct seaward of the CCCL. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November 1993.
The Issue Whether, pursuant to Part I of Chapter 161, Florida Statutes, and Florida Administrative Code Rule 62B-33, Respondent, Eric M. Flanagan (Flanagan), is entitled to construct a single-family dwelling seaward of the Coastal Construction Control Line (CCCL).
Findings Of Fact The Parties Eric M. Flanagan owns an undeveloped lot (Lot R-3) (the Property) at 530 Gulf Lane, North Captiva Island, Lee County, Florida. The easternmost 25 feet of Lot R-3 contains a road easement (Gulf Drive). (Gulf Drive is also referred to as Gulf Lane.) Gulf Drive is an unpaved, sandy roadway/trail which runs south to north. The westernmost boundary of the Property is the Gulf of Mexico. Lot R-3 is vacant. All of Lot R-3 is seaward of the CCCL. Steven D. Huff (Huff) owns a single-family residence at 531 Gulf Lane, North Captiva Island, Lee County, Florida, which is adjacent to and immediately across Gulf Drive to the east (landward) of Flanagan's Property and the proposed project. Dion DeLoof (DeLoof) owns a single-family residence at 541 Gulf Lane, North Captiva Island, Lee County, Florida, which is adjacent to and immediately across Gulf Drive to the southeast (landward) of the Property and the proposed project. The Department is the agency responsible for administering the program for construction activities seaward of the CCCL pursuant to Part I of Chapter 161, Florida Statutes, and Florida Administrative Code Rule 62B-33. The Application and Department Review On October 2, 2003, Lawrence E. Hildreth, P.E., on behalf of Flanagan, filed an application with the Department, for a permit for construction seaward of the CCCL or 50-foot setback.1 On October 2, 2003, the Department also received two boundary surveys for the Property, with and without the location of the proposed dwelling. (One boundary survey is signed by Ted B. Urban, a professional land surveyor, and dated August 21, 2003, and received by the Department on October 2, 2003. Several other floor plans were provided on sheets G and 1 through 6. Fifteen concrete pilings are shown on the "ground floor plan," sheets 0.1 and G.) A letter dated September 5, 2003, advised that the Lee County Zoning Staff reviewed the Flanagan project and determined that it "currently does not contravene zoning codes and is generally consistent with the Lee County Land Development Code." On October 27, 2003, the Department advised Mr. Hildreth that the application was incomplete, including the need for two copies of a topographic survey drawing of the Property, showing, in part, the location of the erosion control line, contour line corresponding to elevation 0 (NGVD), and the location of the seasonal high-water line in relationship to the CCCL. See Fla. Admin. Code R. 62B-33.0081. The Department advised that "[i]n order to get a favorable recommendation, the proposed project has to be landward of the line of construction, 30-year erosion projection and sufficient distance landward of the top of the dune." By letter dated April 21, 2004, and received by the Department on April 23, 2004, Mr. Hildreth responded to the Department's October 27, 2003, letter and provided the Department with topographic surveys showing, in part, the location of the proposed project, the high water line, approximate seasonal high water line, approximate vegetation line, flood zone line, contours at various elevations from the high water line landward to Gulf Drive, and the applicable CCCL. The submitted site plan, showing this information, was prepared by Mr. Urban and dated March 24, 2004. See also FE 3. Mr. Urban also prepared a boundary survey, which included most of the information set forth on the site plan, but also included, written by hand (although the author is not known), a notation of the location of the "30-year erosion projection," which was designated to be "121 feet" seaward of the approximate location of the old CCCL. Mr. Hildreth also submitted other drawings, designated "not for construction," sheets 01 through 11. Mr. Hildreth represented in his April 21, 2004, letter that "[t]here is no excavation or fill proposed except for the installation of the septic tank" and that "[a] landscape drawing is not provided as the existing site vegetation is being retained except for under the house and over the septic system." On or about April 29, 2004, the Department's Srinivas M. Tammisetti, P.E., requested Jennie Cowart, Field Engineer, to provide a site inspection report and current photographs of the project site. It appears that the Department considered the application complete as of April 23, 2004. The Department's file contains a three-page "Site Inspection Report" dated June 4, 2004, apparently prepared by Jennie Cowart, who did not testify in this case. There is a description of the proposed construction area and beach dune system as follows: This site is adjacent to the dune system and beach area. This vacant lot is 2 lots south of LE-1024 (which required a variance to build seaward of the old CCCL. LE-1024 has a Notice to Proceed but has not been started. There are no existing structures in the general vicinity north and south of this lot on the seaward side of Gulf Lane (a sand path). The dune system here is well established with a primary and secondary dune. There are no existing dune walkovers nearby. The location of the proposed septic [sic] is not shown on the reduced site plan. But the road easement is shown along the landward side of the proposed house; therefore, the septic [sic] would have to go on the seaward side of the structure. If this is the case, the septic [sic] would be within the coastal scrub and dune area. The proposed structure may have an adverse affect on the dune system from lighting (if not in strict compliance) and from the septic system. Construction fencing would be needed to protect the vegetated dune. A vegetation analysis is provided in the Site Inspection Report and percent-coverage, and natural conditions are also identified for specific types of vegetation. Vegetation comments are also provided: "The area within the building footprint is mostly mature seagrape, sabal palm, and woody coastal species. There are some large pepper trees near the road. The coastal scrub area is approx 75' wide with a series of dunes. There is no clear existing path to the sandy beach." There are four photographs attached to the report which are difficult to read. The Department's file also contains a "memo to file" dated June 16, 2004, from Emmett Foster, P.E., Florida State University Beaches & Shores Resource Center, with the subject being "[r]eview of 30 Year Erosion Estimate, R-69 to R-70 Vicinity, Lee County." Mr. Foster was asked by Department staff to review the erosion situation between Department reference monuments R-69 to R-70. (The Property is between approximately 180 to 255 feet south of R-69.) Mr. Foster stated in his June 16, 2004, memorandum: "A review of the erosion situation has been preformed, as requested. The recommendation remains as described in the previous 4/28/92 memorandum for this area, copy attached with an updated mhw data table and copies of profile plots." Mr. Foster is referring to a Memorandum dated April 28, 1992, from him to Mr. McNeal providing erosion information for the area between R-69 to R-70, in which Mr. Foster ultimately recommended using the most landward shoreline Mean High Water Line (MHWL) and Seasonal High Water Line (SHWL) of record, the 1982 Department of Natural Resources (DNR) survey as the 30-year erosion projection. See JE 1, April 28, 1992, Memorandum and attached data for Mr. Foster's analysis of the area. See also Endnote 4. (Mr. McNeal testified during the final hearing that he used this information to establish the 30-year erosion projection line.) On July 12, 2004, the Department received a revised site plan dated July 9, 2004, prepared by Mr. Urban, showing the location of a proposed septic tank, seaward of the proposed dwelling. See also FE 4. This is not the permitted location of the septic tank and drain field. See JE 1, Final Order. On or about June 20, 2004, Mr. Tammisetti prepared a memorandum to Mr. McNeal describing, in part, the proposed project. Mr. Tammisetti provided a general description of the beach/dune system: "Subject property has low ground elevation and appears to have viable dune and coastal strand/scrub vegetation. The segment of shoreline is unarmored and sparsely developed. It is subject to random fluctuations due to the effects of offshore shoals. Hence this shoreline experience is both erosion and accretion." He further stated: "Recommended location of 30-year erosion projection is the most landward (MHWL and SHWL) shoreline of record." See Finding of Fact 14. He indicated that the seasonal high water elevation is plus 3.8 feet (NGVD). The Department had permitted two previous projects in the area: LE-707, which was issued and expired in 2000, but was never built, and LE-1024 (the Duboy lot), which was issued a notice to proceed, but has not yet been built. Mr. Tammisetti determined that the "[p]roposed project is landward of line of construction and 30-year erosion projection. Impactive shore- parallel coverage is approximately 80%. Proposed project is sited sufficient distance landward of MHWL, SHWL, vegetation line and frontal dune." Mr. Tammisetti recommended approval of the project with special permit conditions. On or about July 28, 2004, Mr. Hildreth provided the Department with a vegetation map created by Geza Wass de Czege. The vegetation map is for the Property and is dated March 13, 2003. T 32-37. See also FE 6 which is the same map with better clarity. This map (FE 6) provided a description for 0.47 acres of the Property from the shoreline to Gulf Drive as follows: CODE DESCRIPTIONS ACRES 652 Shoreline Beach 0.10 312 Coastal Herbaceous Dune 0.10 322H Coastal Herbaceous Scrub 0.12 322C Coastal Scrub w/Cabbage Palm 0.11 8145 Graded Golf Cart Road 0.04 TOTAL 0.47 On August 2, 2004, the Department issued a "Notice to Proceed Withheld," indicating that the Department approved a permit for construction or other activities seaward of CCCL for Flanagan. The Department noted, however, that "construction may not commence until after the permittee has received a notice to proceed in accordance with Special Permit Conditions 1, 2, 3, 4 and 5, and permittee complies with any preconstruction requirements described in Special Permit Conditions 6." On August 2, 2004, the Department also issued a Final Order with Findings of Fact and Conclusions of Law. This Final Order providing conditions including requirements that the single-family dwelling be located a maximum of 200 feet seaward of the CCCL and constructed of a pile foundation; and have a 900-gallon septic tank and drain field such that "[t]he onsite disposal system's septic tank and chamber pipes located a maximum of 220 feet seaward of the control line" with "[c]onstruction limits located a maximum of 225 feet seaward of the control line." Flanagan was also required as a special permit condition to provide "[a] landscape and dune restoration plan depicting the mitigation of construction impacts to native salt tolerant vegetation." Special Condition 2 also provided: Prior to issuance of the notice to proceed, the permittee shall submit for approval a landscape plan to minimize and mitigate construction impacts to dune vegetation. Existing dune vegetation shall be disturbed only to the minimum extent necessary to complete work within the authorized construction limits and shall be protected by rigid construction fences. As determined to be feasible by the Department and prior to commencement of construction activities, native vegetation within the authorized construction limits shall be transplanted to suitable bare areas seaward of the control line. Transplanted vegetation shall be maintained, irrigated and/or fertilized to ensure a 75% survival rate for a minimum of one growing season. The permittee shall plant a mix of a minimum of three native salt-tolerant species within any disturbed areas seaward of the authorized structures. These plantings shall consist of salt- tolerant species indigenous to the native plant communities existing on or near the site or with other native species approved by the Department. Sod composed of non-native grasses is not authorized seaward of a major structure or decks. Planting in other areas of the project site shall not include invasive nuisance plant species such as listed in the Florida Exotic Pest Plant Council's May 2003 List of Invasive Species Category I and II. On September 20, 2004, Mr. Hildreth filed with the Department two sets of revised plans, as well as a copy of an affidavit of publication of the Department's intent to issue the CCCL permit. The Property Description The Property is located on North Captiva Island, an unbridged barrier island, bounded on the west by the Gulf of Mexico and on the east by Pine Island Sound. North Captiva Island is bounded by Captiva Pass to the north of the Property and Redfish Pass to the south, both of which are unstabilized, dynamic inlets. The shorelines adjacent to and between these unstabilized inlets experience higher rates of erosion and accretion than would a normal shoreline not affected by such an inlet. See generally PE 5 for a 2004, post-Hurricane Charley aerial.2 See also PE 7, updated April 2005, Department report showing, in part, area between R-69 and R-70 as "critically eroded" at 69 and 71. The Property is approximately 75 feet wide (parallel to the shoreline). The depth of the Property as of the July 9, 2004, Urban site plan, was approximately 276 feet on the north and 262 feet on the south, with each boundary extending from the eastern edge of the Property seaward to the MHWL. T 22. The Property accreted approximately 20 feet since November, 2004, and after Hurricane Charley. Stated otherwise, the MHWL moved to the west approximately 20 feet. (According to Mr. Urban, as of a week before the final hearing, the north line was 282 feet and the south line was 274 feet. T 27.) Elevations on the Property range from 1.2 feet at the MHWL to 10.0 to 10.5 feet at the project footprint and at the eastern boundary of the Gulf Drive easement, and 9.6 feet at Gulf Drive. The following relevant elevations, from the Gulf of Mexico to Gulf Drive, are portrayed on the site plan (FE 4): approximate SHWL -- 3.8 feet; approximate vegetation line -- 6.0 feet; 8.0 feet beginning approximately 10 feet east of the vegetation line and extending east, with one dip to 7.8 feet and then rising to approximately 8.5 feet, then dipping to 7.9 feet to the east and rising ultimately to 10.5 feet at the right-of- way line and the eastern edge of the project. FE 4. See also Findings of Fact 31, 34-36. The lots immediately to the north and south of the Property are vacant. (The Duboy lot, two lots north of the Property, is the subject of Department CCCL permit LE-1024, but no dwelling has been built.) Huff owns the two-story dwelling to the east of the Property and Gulf Drive. This dwelling is set back from the roadway easement on the east side of Gulf Drive. PE 3. DeLoof owns the single-family dwelling southeast (landward) of the Property and across Gulf Drive. The Project as Preliminarily Approved Flanagan proposes to construct a single-family dwelling on the Property with the exterior dimensions of the foundation measuring 60 feet in width (in the shore-parallel direction) and between 11 and 16 feet deep (in the shore-normal direction). The side yard setbacks are approximately 7.5 feet. FE 4; JE 1-Final Order at 2. Given the road easement, the project can not be located any farther eastward. The proposed dwelling will be constructed on 15 pilings (12 inches in diameter), see, e.g., JE 1 at August 21, 2003, Survey and Drawing and Certification, sheet G and August 23, 2004, Survey Drawing and Certification, sheets C100-101 and A100, and must comply with the Florida Building Code. See § 163.053(22), Fla. Stat.; Fla. Admin. Code R. 16B-33.008(1). The project includes a 900-gallon septic tank to serve the proposed dwelling. Special permit condition 2.1 permits the "onsite disposal system's septic tank and chamber pipes [to be] located a maximum of 220 feet seaward of the" CCCL. As a result the septic tank must be moved landward from the original proposal. See, e.g., FE 4. The dwelling's most seaward point will be a maximum of 200 feet seaward of the CCCL. Construction limits are located a maximum of 225 feet seaward of the CCCL. JE 1-Final Order at 2. There are no walkways associated with this project. The Location of the Dune(s) The expert testimony and exhibits were in conflict regarding the location of the dune(s) on the Property. The several site plans submitted by Flanagan do not specifically designate the location of any dunes on the Property. See, e.g., JE 1; FE 3-4. These site plans indicate the approximate location of the vegetation line, various elevations, and contour lines. Id. See also Findings of Fact 22-23. Flanagan also provided a March 13, 2003, analysis of the vegetation on the Property, see Finding of Fact 17. FE 6. The Department's Field Engineer prepared a site inspection report dated June 6, 2004, which stated that "[t]he dune system here is well established with a primary and secondary dune." Vegetation cover and comments are also indicated, including a notation that the coastal scrub area is approximately 75 feet wide with a series of dunes. However, the report does not identify the location of a frontal dune. The description of the vegetation appears consistent with the March 13, 2003, descriptions of the Property. See Findings of Fact 13, 17, 38, and 39. The same can be said regarding the Field Engineer's description of "the building footprint" which is described as "mostly mature seagrape, sabal palm, and woody coastal species." Id. See also FE 6 and Mr. De Czege's testimony T 32-37. Mr. Tammisetti, whose testimony is in the record by deposition, stated that he had never been on the Property. He located the dunes on the Property based on the topographic elevations depicted on the Flanagan site plan, received by the Department on July 12, 2004. PE 1 at 22-23; FE 4. After consulting the statutory definitions of "frontal dune" and the rule definition of "primary dune," Mr. Tammisetti located the "frontal dune" and the "primary dune" at contour/elevation 8 on FE 4, i.e., they are in the same location. He also noted a small dune at contour 9, slightly landward. He always considers impacts to the frontal dune, regardless of where it may be located in reference to the beach. In like manner, if there is no primary dune and only a fontal dune, he would consider impacts to that dune. Mr. Tammisetti also described the frontal/primary dune as "immediately landward of the vegetation line." PE 1 at 23-26, 50, 53-58. Mr. McNeal is familiar with North Captiva Island and has processed applications for this area. T 53. However, he has not been on the island "in quite a while," "[a]t least since the '90s." T 83. In making his determinations in this case, Mr. McNeal relied on the information in the Department's file, including the Urban surveys (FE 3-4), vegetation report, and other information regarding vegetation on the Property. See, e.g., T 200-201. Based on that information, Mr. McNeal provided the approximate location for three separate dune areas on the Property: 1) he located a frontal dune (spanning the entire width of the Property) between elevation 5.0 feet and the seaward one-third of the elevation contour 8.0 (a semi-circle extending approximately two-thirds laterally across the southern portion of the Property); 2) he located a secondary dune (spanning the entire width of the Property) landward of the frontal dune (he identified) and after a "little trough," at approximately the 8.5 feet elevation and encompassing a smaller semi-circle elevation at 9.0 feet; and 3) he located a primary dune landward of the secondary dune and another "little trough," at the proposed dwelling footprint and road easement, between elevations 10.0 and 9.5 feet, where the "vegetation coverage gets to be more established and more dense." T 63-66, 87; FE 3-4. On the other hand, Ms. Erickson visited the Property several times and since the hurricane season of the fall of 2004 (last time late in January 2005), and stated that there was no continuous, vegetated dune that provides protective value in the areas referenced as the frontal dune by Mssrs. Tammisetti and McNeal. Ms. Erickson stated that historically there had been a frontal dune in this area, but that it began to erode away some time after 2001, and it no longer exists. T 121-122. Ms. Erickson described the area where Mssrs. Tammisetti and McNeal located the frontal dune as having "small mounds" of elevation that are not "continuous along the shoreline," for adjoining property. She also described the vegetation in this area as "not continuous" and "very sparse," although she stated "there are some sea oats in the area." Ms. Erickson located the "primary (frontal) dune" as the rear (east) approximately 30 to 40 feet of the Property, which overlaps with the proposed footprint of the dwelling, and is in the approximate location where Mr. McNeal located the primary dune. T 115, 121-125; FE 3-4; PE 8. Stated otherwise, for Ms. Erickson, the primary/frontal dune is located between the two yellow lines on Flanagan Exhibit 4. T 124-125. This is a difficult issue to resolve. Mr. Tammisetti and Mr. McNeal are well-versed in identifying dunes and with permitting structures seaward of the CCCL. However, their opinions are given less weight in this case regarding the location of the dunes, in part, because neither personally observed the Property. The vegetation analysis performed by Mr. de Czege in March 2003, is helpful to some extent, but not definitive, although he testified that the vegetation described as "coastal herbaceous dune" is consistent with what would be found on a frontal dune. T 34-36. See Finding of Fact 17. (Mr. de Craze was last on the Property in and around May 2004. T 37.) The site plans submitted by Flanagan are likewise helpful to some extent, but are also not definitive. The Department's site inspection report, see Finding of Fact 13, is helpful to some extent. The inspection report suggested that the septic system would need to be placed on the seaward side of the proposed dwelling and necessarily "within the coastal scrub and dune area." However, although it is stated that the dune system is well established with a primary and secondary dune and coastal scrub area approximately 75 feet wide with a series of dunes, the location of a frontal dune is not discussed. Id. The weight of the evidence indicates that there is an elevated dune area with vegetative cover the width of the Property and somewhat seaward of the proposed footprint of the dwelling (between elevation 8.0 feet and 10.0 feet), which has protective characteristics, and will most likely be left undisturbed. But see PE 12, showing a 15-foot construction access and staging area without consideration of the designated septic tank area. However, the weight of the evidence also indicates that this primary and frontal dune area also includes the more landward location between the yellow lines between elevation 10.0 and 10.5 feet. The project is proposed to be constructed in the middle of this primary and frontal dune. FE 4. The weight of the evidence indicates that at least some native vegetation and in situ sandy soils will be removed during the construction of the project. If the project is constructed in accordance with the "plans" submitted to the Department on September 20, 2004, (JE 1), as interpreted by Ms. Erickson, see, e.g., Findings of Fact 60-61, construction of the project will result in the removal or destruction of native vegetation and in situ soils from the primary and frontal dune area such that it more likely than not will destabilize the primary and frontal dune identified by Ms. Erickson and potentially create a significant adverse impact on the beach and dune system or adjacent properties, notwithstanding Special Conditions 2.2 and 2. [sic] (the last full paragraph on page 2 of the Final Order which should be paragraph 3.) and the General Permit Conditions in Florida Administrative Code Rule 62B- 33.0155(1)(g)-(k). See Finding of Fact 19. JE 1.3 30-Year Erosion Projection The Property is located between approximately 180 feet and 225 feet south of Department Range Marker R-69. R-70 is south of the Property. PE 6. As noted above, the area is subject to significant fluctuations in beach width. See Findings of Fact 21-22. See also JE 1, Emmett Foster April 28, 1992, Memorandum. Depending on the stability of the shoreline in question over a significant period of time, Florida Administrative Code Rule 62B-33.024(2) allows several methods to determine the location of the 30-year erosion projection. T 56- 57. The 30-year erosion projection "is the projection of long-term shoreline recession occurring over a period of 30 years based on shoreline change information obtained from historical measurements." Fla. Admin. Code R. 62B-33.002(57) and 62B-33.024(1). The 30-year erosion projection is determined using one or more procedures set forth in Florida Administrative Code Rule 62B-33.024(2)(a)-(c). Relevant here, "[s]ome shoreline areas, such as those adjacent to or in the vicinity of inlets without jetty structures, can experience large-scale beach-width fluctuations with or without net erosion losses. Other beach areas can fluctuate greatly due to the observed longshore movement of large masses of sand, sometimes referred to as sand waves. In these areas, a 30-year erosion projection shall be estimated from the available data at the SHWL landward limit of the large beach-width fluctuations within the last 100 years, plus the application of a net erosion rate, as described in paragraph 62B-33.042(2)(a), F.A.C., if such can be determined from the available data." Fla. Admin. Code R. 62B-33.024(2)(c)(emphasis added). This is the appropriate rule paragraph to determine the 30-year erosion projection in this case. T 57, 130. The Department has consistently used the most landward shoreline (MHWL and SHWL) of record (the 1982 Department survey) as the 30-year erosion projection between R-69 and R-70 on North Captiva due to the dramatic swings between periods of erosion and accretion. The Department did not calculate a net erosion rate for the Flanagan project. During the summer of 2004 and in light of the Flanagan application, Department staff requested Mr. Foster to review the erosion situation between R-69 and R-70 for the purpose of reviewing the 30-year erosion projection. Mr. Foster's recommendation remained the same as it was stated in his April 28, 1992, memorandum, "with updated mhw data table and copies of profile plots." See Finding of Fact 14. (Mr. Foster used Rule 62B-33.024(2)(c) to calculate the 30-year erosion projection, but did not calculate an additional net erosion rate on top of his 30-year erosion projection which stopped at the 1982 SHWL, see Finding of Fact 14. T 171.) During the final hearing, Mr. McNeal, utilizing Mr. Foster's updated data, located the SHWL (blue hatch line) as of 1982 on an aerial which depicts the May 30, 1991, CCCL. The depicted SHWL is the 30-year erosion line according to Mr. McNeal. T 171, 192-193; JE 3. The proposed project is landward of this 30-year erosion projection. The location of the 30-year erosion line was chosen because, according to the Department, it is the method most compatible with large-scale beach fluctuations and unpredictable shoreline trends. T 57. The Department's analysis was predicated on the assumption, based mainly on Mr. Foster's analysis, that a net erosion rate should not be determined for the Property. On the other hand, Ms. Erickson calculated a net erosion rate of -4.3 feet per year from data between 1951 and 2004-2005, although Department data exists back to 1859.4 T 130- 135, 155-165, 168-177, 187-188; PE 10. Ms. Erickson multiplied -4.3 by 30 years and added the most landward SHWL over the last 100 years which yielded a 30-year erosion projection which is landward of the proposed project. PE 11, purple line. Mr. McNeal disagreed with Ms. Erickson's location of the 30-year erosion line in this case, preferring to rely on Mr. Foster's analysis. T 196-197. He believed that "it may be an issue of judgment on data to be used in this case, not necessarily [the] rule itself, but the data that was used." T 196. Again, Mr. McNeal testified that the Department has consistently used Mr. Foster's methodology when it reviewed other permits along this shoreline, and, in particular, with respect to the Department's consideration of the Duboy property located two lots to the north of the Property. T 197-198. Flanagan, through Mr. McNeal and Mr. Foster's analysis, presented a prima facie case regarding the location of the 30-year erosion projection, which was adequately rebutted by Petitioners. It was then incumbent on Flanagan, as the applicant, to ultimately prove the reasonableness of locating the 30-year erosion projection as indicated by Mr. McNeal, which he did not do. Mr. McNeal did not state that Ms. Erickson's analysis of data (which did not include data back to 1859, see JE 1, Foster April 28, 1992, Memorandum and attached data and Endnote 4) was flawed or otherwise inconsistent with Rule 62B- 33.024(2)(a)-(c). It is concluded that the 30-year erosion projection is as depicted on Petitioners' Exhibits 10 and 11. Therefore, the proposed project is seaward of the 30-year erosion projection. Continuous and Uniform Line of Construction Florida Administrative Code Rule 62B-33.005(9) provides that "[i]f in the immediate area a number of existing structures have established a reasonably continuous and uniform construction line and if the existing structures have not been unduly affected by erosion, except where not allowed by the requirements of Section 161.053(6), F.S., and this rule chapter, the Department shall issue a permit for the construction of a similar structure up to that line, unless such construction would be inconsistent with subsection 62B-33.005(3), (4), (7), (8), or (10), F.A.C." Mr. McNeal located the established line of construction seaward of the proposed project by considering aerial photographs, the Department's database for permit history, and the Flanagan application. See FE 2, red line for Mr. McNeal's location of the continuous line of construction. Mr. McNeal was able to identify structures north and south of the Property, which appeared to be seaward of the proposed structure. (The Gabbert house, which is south of the Property, was considered. FE 2, number 3. The Department also considered, in part, its approval of CCCL permit LE-1024 for the Duboy lot (number 2 on FE 2, T 61-63, 198-200), two lots north of the Property.) There is no structure on the Duboy lot. The weight of the evidence indicates that the Gabbert house has not been "unduly affected by erosion" and that the line of continuous construction determined by Mr. McNeal was reasonable. Removal or Disturbance of Native Vegetation and In Situ Sandy Soils Florida Administrative Code Rule 62B-33.005(4)(a)-(c) provides: The Department shall issue a permit for construction which an applicant has shown to be clearly justified by demonstrating that all standards, guidelines, and other requirements set forth in the applicable provisions of Part I, Chapter 161, F.S., and this rule chapter are met, including the following: The construction will not result in removal or destruction of native vegetation which will either destabilize a frontal, primary, or significant dune or cause a significant adverse impact to the beach and dune system due to increased erosion by wind or water; The construction will not result in removal or disturbance of in situ sandy soils of the beach and dune system to such a degree that a significant adverse impact to the beach and dune system would result from either reducing the existing ability of the system to resist erosion during a storm or lowering existing levels of storm protection to upland properties and structures; The construction will not result in the net excavation of the in situ sandy soils seaward of the control line or 50-foot setback; The construction will not cause an increase in structure-induced scour of such magnitude during a storm that the structure- induced scour would result in a significant adverse impact; The construction will minimize the potential for wind and waterborne missiles during a storm; The activity will not interfere with public access, as defined in Section 161.021, F.S.; and The construction will not cause a significant adverse impact to marine turtles, immediately adjacent properties, or the coastal system. See Fla. Admin. Code R. 62B-33.002(31)(a)-(d) for definitions of "impacts," "significant adverse impacts," "minor impacts," and "other impacts." Mr. Hildreth stated that the only proposed excavation5 "per se would be the installation of the septic tank and drain field, and any type of tie beams you might have between the pilings for bracing." See also PE 1 at 30. He stated that primarily seagrapes and cabbage palms are located on the dwelling footprint and that these would be placed "over to the side." He also opined that approximately one truck load of dirt would be excavated and spread around the site, including on top of the septic tank and drain field, which will be located "immediately west of the house" and no more than 220 feet seaward of the CCCL. This would result in a change in elevation around the drain field of approximately six inches to a foot. Fifteen, 12-inch pilings are proposed. T 43-45; JE 1, Final Order at 2. Conversely, Ms. Erickson testified that construction of the dwelling foundation alone would require the excavation of approximately 430 to 600 cubic yards of material from the frontal and primary dune (located by Ms. Erickson, (PE 8 and 12)). T 137-149; see also JE 1, August 23, 2004, site plan and other sheets filed with the Department and Finding of Fact 25. (The Department does not review construction plans for a proposed dwelling. According to Mr. Tammisetti, the Department examines the "siting of the structures." PE 1 at 29, 38, 42. See also T 202.) Ms. Erickson also stated that significant excavation of dunes causes instability of the dune system by loosening sediments, destroying vegetation, and creating flow pathways that exacerbate wind and wave erosion. Ms. Erickson expects significant adverse impacts to the frontal dune as a result of proposed excavation on the Property. Id. Mr. McNeal acknowledged that excavation and vegetation removal causes instability of the dune system, but opined that the applicant had minimized the removal or disturbance of in situ sandy soils; that the disturbance of in situ sandy soils will not result in net excavation; that the project will not result in the destruction or removal of native vegetation to such a degree that the frontal dune will lose any protective value, destabilize the frontal dune or increase erosion by either wind or water; that the proposed construction will not result in the removal or disturbance of in situ sandy soils of the beach and dune system to such a degree as to have a significant adverse impact to the beach and dune system; and that the Department's Final Order does not allow removed or disturbed in situ sandy soils to be placed landward of the CCCL. T 66-82, 202. Mr. McNeal's opinions are predicated, in part, on his belief that the frontal dune is located seaward of the proposed dwelling and that excavation on-site will be minimal and temporary. Id. See also PE 1 at 30-31, 36-37, 44, 53. The weight of the evidence indicates that notwithstanding the permit conditions, the excavation of in situ sandy soils and native vegetation from the frontal/primary dune is more likely than not to result in significant adverse impacts to the beach and dune system.6 Local Approval There is no evidence that Lee County has rescinded the prior approval letter or that the project has undergone any major modifications that would require the Department to request further approval from Lee County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the CCCL permit. DONE AND ENTERED this 1st day of September, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2005.
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 in this case is whether the Department of Environmental Protection (DEP) should issue Coastal Construction Control Line (CCCL) Permit ES-540 to Bobby L. Warner, Joseph W. and Helen Belanger, and Donald Ray Stephens (Applicants) for structures seaward of the CCCL on Perdido Key in Escambia County, Florida.
Findings Of Fact Undisputed Facts Petitioners stated in the Pre-Hearing Stipulation and confirmed at the hearing that adverse impacts to marine turtles are not at issue in this proceeding. The Petition did not allege that the structures authorized by the Final Order are or would be seaward of the seasonal high-water line now or within thirty (30) years of October 2004. The Petition did not allege that the structures would interfere with public access. Project Description Applicants own two parcels of property comprising 1.19 acres on Perdido Key, Escambia County, Florida, between DEP monuments R-1 and R-2 (the Property). The DEP permit file indicates that the eastern parcel is owned by Bobby Warner and the western parcel is owned by Joseph and Helen Belanger. Portions of the Property extend from the south right-of-way of Perdido Key Drive on the north to the mean high-water line (MHWL) of the Gulf of Mexico on the south. There are two existing multi-family dwellings on the Property. The dwelling on the western parcel owned by the Belangers has two units, while the dwelling on the eastern parcel owned by Ms. Warner has four units. Their overall dimensions are approximately 51.2 feet by 54.4 feet for the easterly structure and 44.1 feet by 31 feet for westerly structure, not including decks or stairs. The seaward limits of the structures are approximately 285 feet and 303 feet landward of the MHWL. Applicants propose to demolish the two existing multi-family structures and construct a 15-unit, multi-family dwelling (the Dwelling) measuring 70 feet in the shore normal direction by 80 feet in the shore-parallel direction on piles with understructure parking, a 38.1-foot by 33.3-foot swimming pool on the seaward side of the Dwelling, a deck, a five foot wide dune crossover seaward of the Dwelling, a driveway and parking area of concrete pavers, and a dune enhancement project (Project). The Project, known as BellaVista, would extend as much as 193 feet seaward of the current (the 1986) CCCL. The Dwelling will be constructed in conformance with the structural requirements of the Florida Building Code (FBC), which are applicable to structures located seaward of the CCCL, as set forth in Section 3107, FBC. The Dwelling will be elevated on and anchored to a pile foundation which will withstand all reasonably anticipated erosion, scour, and loads resulting from a 100-year storm, including wind, wave, hydrostatic and hydrodynamic forces acting simultaneously with typical dead loads. Its lowest horizontal structural member will be elevated above the 100-year storm elevation as determined by DEP in the report entitled “One-Hundred Year Storm Elevation Requirements for Major Habitable Structures Located Seaward of a Coastal Construction Control Line.” The 100-year storm elevation requirement for the Dwelling is +15.4 feet NGVD,2 while the elevation for the lowest structural member of the Dwelling is +28 feet NGVD, 13.4 feet above the elevation requirements of the FBC. The most seaward point of the foundation of the Dwelling is located 18 feet landward of the most seaward point of the foundation of the existing structure on the eastern parcel and is landward of the seaward side of both of the existing dwellings. The proposed pool and pool deck, which extends seaward of the Dwelling's foundation, also are located landward of the seaward side of the existing dwelling on the eastern parcel and approximately in the same location as all but the extreme eastern part of the existing building on the western parcel, which extends a few more feet seaward. The seaward side of the Dwelling is 306 feet landward of the MHWL. DEP very commonly issues permits for structures closer to the MHWL (i.e., more seaward) than the Project. Many structures are permitted within 100 to 150 feet of the MHWL, and some within 60 feet. Property Description Before Hurricane Ivan struck in mid-September 2004, there was an extensive, well-established, healthy, growing and well-vegetated dune system on the Property seaward of the Project that extended to the east and west in front of and beyond the Atlantis and Spanish Key condominiums. This continuous dune system consisted of numerous mounds of sand ranging in height from 6 or 7 to 11 feet above MHWL, and established a dune line seaward of the existing structures on the Property and the Project. The more seaward of these dunes were the frontal dunes. Before Ivan, the vegetation line was approximately 150 feet seaward of the existing structures on the Property. Petitioners argue that there is a definite and unique primary dune line running straight between points where historic survey data indicate that a primary dune existed approximately 223 feet seaward of DEP range monument R-1 and 270 feet seaward of monument R-2. If there were such a dune line, the line would run through the BellaVista Project. But the evidence does not support an inference that such a primary dune line existed between those two points. Rather, the more persuasive evidence was that the dune system on Perdido Key consisted of dune mounds with an irregular pattern, not a continuous dune line or bluff. At the time Ivan struck Perdido Key and the Property, there was no primary dune or other dune beneath or landward of the two existing structures on the Property. Probably, the structures eliminated and then prevented the re- formation of dunes at that location. Ivan was a major magnitude storm with a storm surge of 15-20 feet, which exceeded the predicted storm surge of a 100-year storm in Escambia County. The existing dwellings on the Property survived the storm but were severely damaged. Ivan destroyed all of the vegetation that existed on the Property and on the beach dune system to the east and west. Ivan also destroyed all of the dunes on the Property and on the beaches to the east and west of the Property. Towards the end of March 2005, Escambia County placed a sand berm on the beach in front of the existing structures on the Property and along the beach to the east and west of the Property. The placement of the sand was partially funded by the Federal Emergency Management Agency (FEMA) and is meant to provide some immediate protection for upland structures, especially those that have been damaged or are vulnerable to damage, from higher-frequency storms. Initially, it would provide less protection from lower- frequency storms and, obviously, would be destroyed by a storm like Ivan. However, depending on future storm events, it would provide some protection and could contribute to recovery of the beach and dune system over time. The FEMA berm is located just seaward of the BellaVista Project site. It is located more landward to the east and west of the BellaVista Property and bends seaward around the existing buildings on the Project site. Moving from east to west, the berm begins to bend seaward at about the middle of the Spanish Key building and then, after crossing close in front of the existing buildings on the BellaVista site, bends back landward again at about the middle of the Mediterra building, which is adjacent to and west of the Atlantis building. The bowed-out segment of the FEMA berm in front of the existing buildings on the BellaVista site will be more susceptible to storm erosion than the segments to the east and west that are more landward. Petitioners argue that the FEMA berm was designed and intended to follow the supposed historic primary dune line but had to bend around the existing buildings on the BellaVista site because those buildings straddled the line. But, again, the suggested inference of a historic primary dune line is not supported by the evidence. In addition, the evidence does not support the inference that the placement of the FEMA berm followed a pre-selected line, but rather suggests that its placement was dictated by its purpose to provide some protection for damaged and vulnerable structures and properties. The top of the FEMA berm has an approximate height of 13 feet NGVD, or about 6 feet above grade, which is comparable in height to the dunes that existed before Ivan. From the landward toe, the berm rises approximately 6 feet at a slope of 2:1. The crest or top of the berm is 8 feet wide. The berm then slopes approximately 40 feet downward to its seaward toe. The overall width of the berm is 58 feet in the north-south direction. The FEMA berm is a mound of loose, sand-sized sediment which lies upland of the beach and was deposited by an artificial mechanism. It is subject to fluctuations in configuration and location. As such, the sand berm is a dune, as defined by Florida Administrative Code Rule 62B-33.002(17). See Conclusion of Law 48, infra. The FEMA dune is now the only dune on the Property or adjacent properties. The crest of the FEMA dune is approximately 30 feet seaward of the Project’s pool and deck. As such, the entire Project is landward of the toe of the FEMA dune. (Applicants modified their application to reflect the FEMA dune through admission of Applicants' Exhibits 9 and 10 into evidence.) The dune enhancement project proposed by the Applicants and required by the Final Order is located partially landward of the FEMA dune and partially atop the landward slope of that dune. The dune enhancement project will enhance the FEMA dune and expand the width of the dune approximately 10-15 feet on the landward side, making the crest of the new dune on the Property 25 feet wide at an elevation of 13 feet. The dry sandy beach on the Property and in the area to the east and west remains wide even after Ivan. The existing structures on the Property are now approximately 288 feet landward of the MHWL. Survey data taken at monuments R-1 and R-2 show that the shoreline at these monuments has historically accreted from the 1860s to the present. The rate of accretion increased from 1974 to 1996. Between 1985 and 1996, the MHWL at R-2 moved 100 feet seaward, a rate of approximately 6 feet/year. Similarly, between 1985 and 1996, the MHWL at R-1 advanced 80 feet, a rate of approximately 7 feet per year. Even if the data in the vicinity of these monuments indicate deceptively high rates of accretion because there were no data points in Alabama to include in the averaging, the accretional trend is clear from the evidence. The Project will not affect this accretional trend. Along with accretion, the dune system in the area of the Property also was growing prior to Ivan, and dune recovery seaward of the new FEMA dune is expected. The primary dunes that existed pre-Ivan on the adjacent properties immediately seaward of the Spanish Key and Atlantis condominiums, which included dunes with elevations of 16-17 feet, will take 25-50 years to rebuild through natural processes, such as aeolian (wind-driven) transport. Some may never recover to previous elevations. The lower dunes, such as those that existed on the Property, may recover in ten years. Since the Project is located landward of the FEMA dune, it will not interfere with post-storm recovery of the dune system. Line of Construction Petitioners contend that there is a reasonably continuous and uniform construction line seaward of the current (the 1986) CCCL "in the immediate contiguous or adjacent area" and landward of the proposed Project--namely, along the line of the former (the 1975) CCCL. In fact, such a line of construction exists extending approximately 500 feet west, and approximately 1,500 feet east, of the proposed Project, but no farther, as there are structures more seaward beyond those points. In addition, in making their "line of construction" argument, Petitioners ignore the existing structures on the proposed Project site. The line of construction is not a prohibition in and of itself. Rather, it is only one of several criteria that must be balanced in determining whether or not to approve a CCCL permit application. The line of construction is a factor for new construction but not for rebuilding or relocation of a building landward. It is the position of DEP and Applicants that the Project qualifies as a rebuilding or relocation and that "line of construction" does not apply. Regardless whether the "line of construction" applies, it must be considered, weighed, and balanced against all of the other application processing factors. See Conclusion of Law 56, infra. Applicants contend that protection of the beach dune system through application of the line of construction provisions is not supported by the Petitioners’ own testimony. They argue that Susan Long, testifying on behalf of and as an agent of Spanish Key, admitted that Spanish Key would not oppose the project at its proposed location were it only two stories tall and would not oppose the repair of the existing structures. Likewise, they argue Boyd Bond, testifying on behalf of and as an agent of Atlantis, stated that Atlantis would not oppose the repair of the two existing multi-family dwellings of the Property. Actually, both testified that they would not oppose those undertakings if Applicants were entitled to permits for them. Significant Adverse Impacts Florida Administrative Code Rule 62B-33.002(31) defines various degrees and kinds of impacts for purposes of CCCL permitting: "Impacts" are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows: "Adverse Impacts" are impacts to the coastal system that may cause a measurable interference with the natural functioning of the system. "Significant Adverse Impacts" are adverse impacts of such magnitude that they may: Alter the coastal system by: Measurably affecting the existing shoreline change rate; Significantly interfering with its ability to recover from a coastal storm; Disturbing topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure or the protective value of the dune system is significantly lowered; or Cause a take, as defined in Section 370.12(1), F.S., unless the take is incidental pursuant to Section 370.12(1)(f), F.S. "Minor Impacts" are impacts associated with construction which are not adverse impacts due to their magnitude or temporary nature. "Other Impacts" are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access. (Other applicable rule definitions are set out in Conclusion of Law 48, infra.) Only "significant adverse impacts" (not all impacts or even all adverse impacts) have to be eliminated before DEP may issue a CCCL permit. Vegetation Vegetation on the Property itself was limited pre- Ivan due to development, and Ivan largely destroyed what vegetation there was on the Property. As a result, any disturbance of any existing vegetation during construction will be de minimis. In addition, since there no longer are any dunes on the Project site, no destabilization of any dune or any "significant adverse impact" to the beach and dune system due to increased erosion by wind or water will result from construction of the Project. To the contrary, Applicants have submitted a dune enhancement plan tailored for site conditions as they now exist post-Ivan. Special Condition 9 of the proposed Permit requires that Applicants plant soil-stabilizing native grasses throughout the dune enhancement area in staggered rows 18 inches apart and also requires the achievement of a given survival rate. The dune enhancement plan includes planting which constitutes a significant improvement to the native vegetation situation on the site. The Project will not interfere with the re-emergence of vegetation seaward of the Project. Disturbance of In Situ Sandy Soils Construction of the Project will not result in the removal or disturbance of in situ sandy soils of the beach and dune system to such a degree that a "significant adverse impact" to the beach and dune system would result from either reducing the existing ability of the system to resist erosion during a storm or lowering existing levels of storm protection to upland properties and structures. The only excavation will be for foundation pilings and the swimming pool. Obviously, excavation for the foundation will be filled with the pilings, and none of the sand excavated for that purpose will be removed from the site. All the sandy material excavated for the pool will be placed on site seaward of the structures and the CCCL within the dune enhancement area and in the immediate area of the construction. In addition, the Project will result in the net addition of 658 cubic yards of sand to the beach dune system seaward of the CCCL as part of required beach enhancement. The additional sand to be placed as part of the dune enhancement plan will, in fact, enhance the ability of the system to resist erosion during a storm and will raise existing levels of storm protection to upland properties and structures. Structure-Induced Scour Construction of the Project will not cause an increase in structure-induced scour of such magnitude during a storm that the structure-induced scour would result in a "significant adverse impact." Scouring around piles in a storm is very localized and miniscule and would extend no more than two feet away from the piles and will not reach adjacent properties. Any storm-induced scour will be less than 0.02% of the erosion caused by a 100-year storm event. Scour from the proposed structures will not measurably affect shoreline change rates. Scour caused by the proposed structures will not significantly interfere with beach dune system's ability to recover from a coastal storm. The minimal scour caused by the Project will not disturb topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure. Missiles The Project has been designed to minimize the potential for wind and waterborne missiles during a storm. The Dwelling will be constructed in conformance with the structural requirements of the FBC for structures located seaward of the CCCL, as set forth in Section 3107, FBC. The Dwelling will be elevated on and anchored to a pile foundation which will withstand all reasonably anticipated erosion, scour, and loads resulting from a 100-year storm, including wind, wave, hydrostatic, and hydrodynamic forces acting simultaneously with typical dead loads. As designed, it will not interact with the beach/dune system in storm events and will allow the free movement of sand, water, storm surge, and waves under the building. In the event of another hurricane, storm surge and waves would pass under the Dwelling and not impede such natural processes. Conformance with the FBC minimizes missile potential. Petitioners' coastal engineering expert witness conceded that he did not anticipate missiles would adversely affect the Petitioners’ property or structures. No evidence was offered to show that missiles would adversely affect Petitioners’ property or structures or that the Project would not comply with the applicable FBC structural requirements. Reflective wave energy from the Project will not impact the Petitioners’ property or structures and would not cause a significant adverse impact. There was no evidence of missile damage to Petitioners’ properties from the existing structures even during Hurricane Ivan. To the extent that any threat of missile damage to Petitioners’ structures exists, a more landward location of the Project would increase the threat. Minimization and Mitigation Initially, Applicants proposed a larger and more seaward project. Through negotiations, Applicants agreed to reduce the size of the project and move it more landward. DEP and the Applicants characterize this as minimizing the adverse impacts of the Project. However, "minimization" of this kind can be illusory if an applicant attempts to manipulate it by making a "throw-away" first proposal (not to imply that Applicants manipulated minimization in this case, which cannot be determined from the record). Siting and design criteria have minimized adverse impact. These include construction of the Dwelling: (a) on piles with a design elevation above the storm-surge and storm wave elevations; (b) 306 feet landward of the MHWL and the active beach; (c) behind the new FEMA dune; (d) as far landward as possible for the design; and (e) 18 feet landward of the existing structures on the Property. Placing material excavated for the pool in front of the pool and in the immediate area of construction has minimized the impacts of the pool. No evidence was offered to show that the impacts of the pool have not been minimized. The Permit has been conditioned to require dune enhancement, planting of native, salt-tolerant vegetation, and maintenance of such vegetation as mitigation against adverse impacts associated with the Project. Beach Dune Stability and Natural Recovery The Project is located a sufficient distance landward to permit natural shoreline fluctuations, to preserve and protect beach and dune system stability, and to allow natural recovery to occur following storm-induced erosion. It is located landward of the frontal dunes that existed before Ivan and landward of the frontal dune that now exists (the FEMA dune). The Project will not affect existing shoreline change rates. The Project is landward of where an extensive dune system existed before Ivan and that landward location means it will not interfere with the recovery of those dunes. There is a great expanse of area for dune recovery. It is anticipated that vegetation seaward of the Project will re- emerge by this coming summer. Construction of the Project will not prevent the dune system from recovering and providing protection. Petitioners' primary argument against the Permit, other than its "line of construction" argument, is that dunes will not recover under the footprint of the Dwelling, where they otherwise "want to" and would be expected to recover to some extent, providing some additional dune stability and protection, all other things being equal (i.e., if minimization and mitigation were the same), if the Permit were to be denied and Applicants forced to propose a smaller, more landward project. Cumulative Impacts The Project will not have an unacceptable cumulative impact. No evidence was offered to show that an unacceptable adverse cumulative impact in terms of existing or other proposed projects will result. Positive Benefits of Project The Project will have a net positive benefit on the beach-dune system and adjacent properties and improves existing conditons. Demolition of the two existing structures on the Property will decrease the likelihood of wind and waterborne missiles since the new Dwelling will comply with the structural wind and water load requirements of the FBC. All of the structures to be constructed under the Permit will be landward of the seaward portions of the existing structures. The new Dwelling will be 18 feet landward of the seaward-most point of the existing structures. This landward relocation will allow for more dune recovery seaward of the Project than could occur under existing conditions and mean that the Project will have less impact than the existing structures. Since the beach is an accretional beach and the shoreline has historically advanced seaward, it is expected that the seagrasses and dunes will recover in the area. The area of the Dwelling seaward of the old CCCL is less than the area of the existing structures. The Applicants will implement a dune enhancement plan that includes the placement of 658 cubic yards of sand on the beach and the successful planting of native vegetation on the dune. This dune enhancement plan will benefit the beach dune system, will benefit the new dune, and will increase protection to upland properties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing CCCL Permit ES-540, as modified by Applicants' Exhibits 9 and 10. DONE AND ENTERED this 9th day of June, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 9th day of June, 2005.
Findings Of Fact Nannette K. Scoggins is the owner of the real property located at 5622 Gulf Drive, Holmes Beach, Florida in Manatee County. Nannette K. Scoggins' property, the petitioner's property, 5624 Gulf Drive, and the other adjacent property, 5620 Gulf Drive, are zoned as "A-1 Hotel-Motel" under the City of Holmes Beach Zoning Ordinance. On November 13, 1983, Mrs. Scoggins submitted to DNR an application for a permit for construction seaward of the coastal construction control line (control line). The proposed project, known as Jansea Place, would consist of two multifamily dwellings, four units to a building, divided by a swimming pool. A portion of the most seaward building would extend a maximum of 57 feet seaward of the control line. By letter dated July 11, 1984, DNR notified petitioner that the department was considering the permit application. The petitioner responded by letter dated July 18, 1984, objecting to any construction seaward of the control line. On October 1, 1984, petitioner received notification that DNR intended to recommend approval of the permit. The permit was scheduled for a vote by the Governor and Cabinet on October 16, 1984. The staff of DNR recommended approval of the permit. By telegram dated October 15, 1984, the petitioner requested an administrative hearing, and on October 22, 1984, petitioner filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The application for permit No. ME-89 is a complete application for permit to construct seaward of the coastal construction control line. On October 5, 1983, the Superintendent of Public Works of the City of Holmes Beach certified that this project does not violate any ordinance of the City of Holmes Beach. The plans for the proposed project are signed and sealed by an architect registered in the State of Florida, and the submitted plans comply with the design standards established in Rule 16B-33.07, Florida Administrative Code to resist adequately the natural forces associated with a 100-year return interval storm event. The plans, specifications, drawings and other information submitted to DNR with the application for permit to construct seaward of the coastal construction control line are complete and accurate, and meet the requirements of DNR for that purpose. Under the provisions of Rule 16B-33, Florida Administrative Code, the application was determined to be complete on August 6, 1984. The proposed construction is located landward of an existing vertical concrete bulkhead. The seawall was built jointly by the Scoggins and Mr. McLean, who owns the property immediately to the south of the Scoggins' property. The seawall was built after the hurricane of 1972 because the existing dune system had been destroyed. Since that time, the mean high water line has continued to encroach landward to the point where it is now east of the wall. However, the seawall is not necessary for the protection of the proposed building. Although the seawall would fail under the direct impact of a major hurricane, the proposed building is adequately designed to withstand the impact erosion, the wave loads, the winds, and the water forces associated with a major hurricane. The necessity and justification for the project's location in relation to the control line is stated in the application, and petitioner has not challenged the necessity or justification. The City of Holmes Beach Zoning Ordinance requires that the buildings be separated by a minimum of 30 feet. Since the proposed buildings are separated by 30 feet, the proposed seaward building is located as far landward as possible without violating the zoning ordinance. Erosion and structural damage occurred as a result of Hurricane Agnes in 1972 and the "No Name" storm in 1982 in the area between 1,000 feet south of the Scoggins' property and 500 feet north of the Scoggins' property. Although the beach was fairly stable from 1974 to 1979, the beach began to erode in 1980. When the seawall was built in 1974, the dune line was even with the seawall. However, as can be seen from a comparison of the photographs taken in June of 1979 with those taken in early 1985, the beach has eroded since June of 1979 and the dune line is now several feet landward of the seawall. The DNR recommendation for approval of the Scoggin's permit application was based upon historical erosion data for the period between 1940 and 1974, which was the most recent data available that could be used to review the project. Mr. Clark stated that the application was recommended for approval based on the design of the proposed building and its alignment with existing structures built seaward of the control line. The proposed project is located landward of a line of existing structures. Although the adjacent properties have been affected by erosion, there was no evidence presented to show that the existing structures located seaward of the control line have been unduly affected by erosion. In 1974, when the seawall was being constructed, the worker building the seawall dug up part of the petitioner's property and destroyed the sea oats he had planted. However, the proposed project has a driveway encircling the building which would provide vehicular access to the seawall if necessary. The proposed project will partially obstruct petitioner's view to the southwest. However, there was no evidence presented that petitioner's property or the other adjacent property, would be adversely affected in any other way by the proposed project. There was no evidence presented that the proposed project would be affected by, or have an effect on, beach or coastal erosion. The proposed project would have no effect on the beach dune system.
Recommendation Upon consideration of the foregoing, it is recommended that DNR issue Permit Number ME-89 to Nannette K. Scoggins. DONE and ENTERED this 28th day of June, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
The Issue 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
