Findings Of Fact Evidence reveals that the Karatinos family originally purchased this property in 1957 and Title has been within that family unit continuously until the present time. When originally acquired, the desire was to build a motel east of the roadway fronting the beach; however, because of various events, including the death of the Father (Petitioner Aphrodite Karatinos husband), the plans were postponed over the years until 1982 when the original petition was filed with DNR for a permit to build. Based on a discrepancy between the Town of Juno Beach's zoning and town comprehensive plan, Petitioners were unable to get local approval until such time as they could in essence, obtain a variance from Juno's comprehensive plan. Petitioners' obtained local approval from the Town of Juno Beach to construct a 2-unit family structure. (Petitioners' Exhibit 3). On February 18, 1982, DNR received an application from Theodore B. Jenson, P.E., on behalf of Mrs. Aphrodite Karatinos and Nicholas Karatinos, for construction of a two-family residence and sea dune protection wall. On March 13, 1986, Petitioners' application was determined to be complete (Respondent's Exhibit 1). DNR made timely request for additionally information from Petitioners. On May 20, 1986, Governor and Cabinet, sitting as the head of DNR, considered and approved the staff recommendation for disapproval of Petitioners' CCCL permit application, PD-108 (Respondent's Exhibit DD). On the Governor and Cabinet agenda item, the staff concerns For the proposed project were summarized as follows: The staff is concerned about the adverse impact of this project on the beach-dune system and adjacent properties. The coastal dune ridge, on which Ocean Boulevard (formally A1A) is located in the vicinity of this property, provides a narrow protective barrier for upland development landward of Ocean Boulevard. Seaward of Ocean Boulevard, 3 Multifamily dwellings exists within 1300 feet south of the project area, and one multifamily dwelling exists three miles north of the project area. The cumulative impact of constructing additional buildings sited seaward of the frontal dune on the vegetated storm beam of the beach will result in the destruction of the barrier dune system along this stretch of coast. Further, the Governor and Cabinet agenda item contained the following staff assessments: The project will have a substantial adverse impact on the beach-dune system. The project will have a significant adverse impact on the adjacent properties because construction activities on the proposed structure may be expected to induce substantial dune slope instability and deflation adversely impacting the dune system on this and adjacent properties. Additional adverse impact can be expected on this and adjacent properties due to the substantial reinforced concrete wall located between 16 and 26 feet seaward of the control line. The coastal dune on which Ocean Boulevard (Old A1A) is located provides a narrow barrier of the upland development. The cumulative impact of constructing dwellings along the undeveloped coast to the north and seaward of Ocean Boulevard is expected to result in the destruction of the coastal barrier dune system. The damage to the dune system is expected to threaten Ocean Boulevard, which is an important evacuation route in the area. The dwelling structure is not designed in accordance with Subsection 15B-33.07(3) and (4), Florida Administrative Code to resist adequately the natural forces associated with a 100 year return interval storm event. The landscaping is not consistent with Chapter 16B- 33, Florida Administrative Code. Petitioners's property is located in a tidal coastal area along the sandy beaches of the Palm Beach County coastline. Petitioners's property is part of the beach-dune system. Natural Littoral Process A natural seasonal littoral process affects beach-dune systems such as that upon which Petitioners' property is located. During the summer season when the natural littoral process is progressing, offshore sediment is transported to the active beach where it is deposited and forms sand bars. This dried sediment is then windborne inland and trapped by dune vegetation, thereby naturally nourishing the dunes. During the winter season, heightened wave activity transports sediment from the active beach to an offshore location where a sand bar is formed. This sand bar serves as a buffer to reduce the erosion effect of the heightened wave activity. As this heightened wave activity subsides, sediment from the sand bar is again transported inland and eventually is redeposited and trapped upon the dunes. These dunes provide protection to upland properties from the impact of severe storm events. Interference with any portion of the cycle of sediment transport results in destabilized and stunted dunes. A destabilized and stunted dune will be more severely impacted by erosion events, thereby increasing the risk of harm to adjacent properties and threatening the entire beach-dune system. During an erosion event the winter cycle is exaggerated. In a major erosion event such as a hurricane, tropical storm, northeasterly, and the like, the dramatically heightened wave activity transports large amount of sediments from the beach-dune system to an offshore location where a sand bar formed. The sand bar serves as a buffer to reduce the erosion effect of the storm. The presence of a layer of non-erodible material enhances the zone of erosion scour in a landward direction. Salt-Resistant Dune Vegetation Salt-resistant dune vegetation such as sea oats, sea grape and yucca are particularly suited to the task of trapping wimdborn sand and stabilizing the dune face. These types of vegetation thrive in areas of low fresh water availability, high salt content, and low soil nutrient conditions, by virtue of their strong reliance on the photosynthetic process. These types of vegetation will not survive under reduced light or shaded conditions. There exists no substitute which can perform the dune stabilizing and sustaining functions under the reduced sunlight which would exist under an elevated structure such as proposed. These types of vegetation are also dependent on a complex microbiological relationship which is not easily, if at all, reestablished following a disturbance such as the proposed construction. Effect of Site Disturbance Construction of the proposed structure by Petitioners will involve significant site disturbance and excavation. Disturbance includes destruction of the dune vegetation. The construction activities will not only destroy the existing dune vegetation but also will disrupt the dune existing microbiological relationship making re-vegetation difficult even where adequate sunlight is available. Loss of dune vegetation terminates and destabilizes dune leaving it extremely vulnerable to erosive forces. In addition to the initial disturbance and destruction of dune vegetation caused during construction, the presence of man made structures sited and located on the seaward face of the dune, decreases or excludes direct sunlight to the area below the structure. This reduction or exclusion of sunlight further results in the inability of dune stabilizing and sustaining vegetation to reestablish and maintain itself. Structures which are built below grade within the erosion scour zone, such as seawalls, inhibit the landward progress of the erosion scour. The erosion scour on either side of the inhibiting structure will proceed further landward than the unobstructed zone of erosion scour resulting in increased erosion on any adjacent proper ties to the inhibiting structure. Cumulative Impact Although an individual construction activity or structure, as is here proposed, may not have an adverse impact on the beach-dune system, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach-dune system along that segment of the shoreline. Zone of Erosion Scour In order to evaluate the impact of a proposed structure on the beach- dune system it is necessary to determine the depth and landward extent of erosion scour during a 100 year storm event. Petitioners' determination of erosion scour was not based upon a particular formula, model, or methodology. Additionally, Petitioners' engineer made no further study to determine the accuracy of this or any preceding estimates. The model used by DNR is a precise mathematical calculation of the depth and landward limit of erosion attributable to a 100 year storm event. Additionally, DNR's model has been calibrated utilizing the known erosional effects of actual storm events. DNR's model has been subjected to a blind, hands-off test of its reliability, which demonstrates its accuracy for predicting depth and width extent of erosion scour during a 100 year storm event. DNR's model is the most accurate model available for determining the depth and landward extent of erosion scour during a 100 year storm event. The Balsillie model, which was developed after Petitioners engineer made his estimate of erosion scour, is a model which estimates the volume of erosion scour. That model does not estimate the landward extent of erosion scour. However, the Balsillie model does contain a mathematical formula which will estimate the percentage of the volume of erodible material which will be eroded above the storm surge elevation. Application of the Balsillie model to Petitioner's proposed project demonstrates that the erosion scour from a 100 year storm event would extend landward of the proposed structure. Impact of the Proposed Structure The site disturbance necessary to construct the proposed structure will destroy virtually all salt-resistant dune vegetation on the site. Site disturbance will also disrupt the microbiological relationship that exists in the displaced sediment. Both these factors will likely result in a permanent destruction of dune stabilizing and sustaining vegetation creating enhanced vulnerability and eventual destruction of the dune system at the construction site. As a result of this destabilization, the adjacent properties also will exhibit an enhanced vulnerability to erosion. Petitioners propose to construct a retaining wall on the landward side of their proposed structure. The retaining wall is a substantial wall and is proposed to be located below the level of the first finished floor of the structure and seaward of the CCL. The erosion scour from a 100 year storm event will proceed landward of the retaining wall. This retaining wall will therefore act as a seawall. The effect of the retaining wall during a 100 year storm event will result in enhanced erosion scour on the Petitioners' and adjacent properties, unless and until the wall is totally undermined by erosion. The enhanced landward extension of erosion scour on either side of the retaining wall will breach Ocean Boulevard, an important evacuation route in the event of a severe storm event. Ocean Boulevard (Old A1A) lies on the crest of the same dune upon which Petitioners propose their structure and proceeds parallel to the shoreline in the area of Petitioners' property. The cumulative impact of siting the proposed and similarly located structures would be the destabilization of the entire seaward face of the dune upon which this evacuation route proceeds. The cumulative impact of the siting of structures in this area in locations similar to that proposed by Petitioners enhances the risk of destroying the evacuation route during a severe storm event. Petitioners' proposed structure is to be pile elevated. The pilings for elevated structures must penetrate to a sufficient depth to support the structure during the onslaught of the horizontal force (wind and water) generated during a 100 year return storm event. Determination of the depth of pile penetration requires knowledge of the substrata underlying the property. This determination also requires a simultaneous forces calculation which takes into account the combined effect of maximum aerodynamic (wind) and hydrostatic (wave) forces. The soil study report commissioned by Petitioners is inadequate to evaluate whether rock exists in any substrata underlying Petitioners' property. For this reason, good engineering practices require the assumption that no rock underlies Petitioners' property and Petitioners' failure to proceed on that assumption has resulted in Petitioners' submission of an inadequate pile penetration proposal. Petitioners' engineer failed to perform a simultaneous forces calculation which resulted in his submission of an understatement of required depth for pile penetration. Petitioners' engineer relied upon an inaccurate estimate of the depth of erosion scour which resulted in his submission of understatements of the required depth of both pile penetration and the pile caps. DNR made a determination of the correct depth of pile penetration utilizing a simultaneous forces calculation and the correct depth of erosion scour. The result of DNR's calculation was a determination that the depth of pile penetration should be -17 N.G.V.D. as opposed to -10 NGVD proposed by the Petitioners. DNR has not permitted any adjacent structures under the existing statutory and regulatory provisions. All of the structures immediately adjoining Petitioners' property were constructed prior to the impact of the four (short incident) hurricanes and therefore those structures have not sustained the impact of a 100 year return storm event.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: Respondent, Department of Natural Resources, Division of Beaches and Shores, issue a Final Order denying a Coastal Construction Control Line permit, PD-109, to Theodore B. Jenson, on behalf of Petitioners Nicholas E. Karatinos and Aphrodite E Karatinos, for construction of a six-unit condominium and walkover and for landscaping and placement of sand fill material in Palm Beach County, Florida. RECOMMENDED this 19th day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 19th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2168 Motion rulings on Petitioner's Proposed Findings of Fact. Paragraph 4, rejected as irrelevant to a determination of the issues posed for decision herein. Paragraph 5, rejected as being either irrelevant to the issues posed for decision with the latter Proposed Findings in Paragraph 5 being rejected as contrary to other evidence of record. Paragraph 11, first two sentences rejected as irrelevant. The remaining portion of paragraph 11 is rejected based on the determination that one test bore was insufficient to determine the substroto substrata of Petitioner's property. Paragraph 12, rejected as contrary to other evidence of record and as is more particularly set forth in the section of the Recommended Order entitled "zone of erosion scour". Paragraph 13, rejected as contrary to other evidence which indicates that during the 100 year event conditions, erosion is expected to reach the structure and the Petitioner proposed to provide a pile depth of only-10 n.g.v.d. Paragraph 14, rejected based on the determination herein that revegetation efforts will not meet with much success and the impact of the proposed construction would be devastating to the beach-dune system. Paragraph 15, first part accepted with the latter part rejected, based on the absence of any evidence indicating that Petitioner's proposed to replace the soil and other dune vegetation with landscaping materials acceptable under DNR's rules. Rulings on Respondent's Proposed Findings of Fact. Paragraph 21, rejected as unnecessary to determine the issues proposed herein. Paragraph 26, rejected based on the lack of credible evidence to determine the efforts of the owners and/or residence of the surf condominium to assist in the stability of dune vegetation under restricted light conditions. Paragraph 59, rejected as being conclusionary. Paragraph 73, rejected as being conclusionary. Respondent's Proposed Findings of Facts contained in Paragraphs 85 thru 138 were rejected as being argumentative, irrelevant or unnecessary to determine the issues posed for decision herein. COPIES FURNISHED: H. Laurence Cooper, Jr., Esquire 400 Royal Palm Way Palm Beach, Florida 33480 Dean C. Kowalchk Assistant Attorney General The Capitol, Suite LL04 Tallahassee, Florida 32301 Andrew S. Grayson Assistant General Counsel Department of Natural Resources 1003 Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Dr. Elton Gissendanner Executive Director Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue The issue is whether Respondent Negele is entitled to a coastal construction control line permit to construct a single- family residence seaward of the coastal construction control line on Anna Maria Island.
Findings Of Fact Respondent Susan Negele (Applicant) owns Lot 10, Block 35, of the First Addition to Anna Maria Beach. Petitioner owns the legal interest in Lots 11 and 12 in the same block. Lot 11 is adjacent to, and landward of, Lot 10, and Lot 12 is adjacent to, and landward of, Lot 11. As platted in 1912, Lot 10 was separated from the Gulf by 360 feet, consisting, from landward to seaward, of two 50-foot lots, an unnamed 10-foot alley, a 100-foot lot, a 50-foot-wide road known as Gulf Boulevard, and about 100 feet of beach (although this feature does not contain a stated distance and the plat map does not indicate the location of the mean or seasonal high water line). According to the plat, running perpendicular to Gulf Boulevard (and the shoreline) are Elm Avenue and another unnamed 10-foot alley. Elm Avenue, which is 50-feet wide, runs along the northwest property line of Lot 10, and the unnamed alley runs along the southeast property line of Lot 10. Today, Lot 10 is the first platted feature landward of the seasonal high water line of the Gulf of Mexico. The record does not reveal whether the platted features seaward of Lot 10 were submerged at the time of the original subdivision or, if not, the process or processes that submerged these three lots, alley, road, and beach. Notwithstanding the clear evidence of the plat map, there is insufficient record evidence on which to base a finding that the mean or seasonal high water line has migrated landward a distance of 360 feet in 88 years. The record is contradictory on the issue of the stability of the beach seaward of Lot 10. On the one hand, as noted below, two rock groins of unknown age on either side of Lot 10 suggest an effort to deter offshore erosion, but the presence of these groins does not support an inference of a diminishing beach. The beach seaward of Lot 10 is included in the Comprehensive Beach Management Plan, which is reserved for beaches that are subject to erosion, but the record does not develop this point adequately. On the other hand, also as noted below, the anecdotal evidence suggests that the beach seaward of Lot 10 has been stable, at least for the past two or three decades. A recent survey, described below, suggests rapid growth in the beach and dune over the past 16 months. Even stronger evidence of the stability of the beach seaward of Lot 10 is its exclusion from the 30-year erosion projection. The record unfortunately does not disclose the proximity of this line to Lot 10, which, if in close proximity, would be important evidence of the condition of a beach and frontal dune system. In sum, the relative stability of the beach in the vicinity of Lot 10 is unclear. However, the exclusion of Lot 10 from the 30-year erosion projection and the anecdotal evidence of stability slightly outweigh the contrary evidence of instability. Applicant's family has owned Lot 10 for 50 years. Originally, they occupied two buildings on Lot 10 that had once served as Coast Guard barracks. At one point, Applicant's father barged the houses up the Manatee River to his father's farm in Palmetto. The record does not reveal whether another building was ever constructed on Lot 10. From an engineering standpoint, Lot 10 is a buildable lot. Applicant seeks the necessary permits to allow residential construction, so as to raise the market value of Lot 10 prior to its sale in order to liquidate this asset following the death of her surviving parent. By application filed with Respondent Department of Environmental Protection (DEP) on June 16, 1997, Applicant requested a coastal construction control line (CCCL) permit to construct a single-family residence on Lot 10. On June 30, 1999, DEP issued a Final Order tentatively granting the permit, but authorizing the construction of a structure with a footprint of only 352 square feet. Finding the allowable footprint insufficient, Applicant challenged the tentative agency action in DOAH Case No. 99-3913. Finding even a 352-square-foot footprint objectionable, Petitioner also challenged the tentative agency action in DOAH Case No. 99-3613. The Administrative Law Judge consolidated the two cases. Agency action in cases of this type is necessarily tentative because it is subject to administrative challenge, which, once resolved, allows final agency action to take place. However, the tentative agency action in this case is tentative in another important respect. DEP has approached the permitting decision in this case through a bifurcated process. DEP has issued a Final Order approving the proposed activity in concept, but has withheld issuing a Notice to Proceed, which is necessary before construction may commence. DEP has withheld issuing the Notice to Proceed until it receives more detailed plans for grading and revegetating the dune and it determines that these plans adequately address the protection of the beach and dune system. As noted below, the bifurcated permitting process defers DEP's examination of detailed grading and revegetation plans until after its issuance of the Final Order. DEP's expert testified that DEP provides a point of entry to challenge final orders, but not notices to proceed. (Tr., p. 174.) The expert testified that DEP would provide another point of entry concerning the proposed activity, but only if DEP were to issue another final order, such as for a "major modification" of the project (Tr., p. 174). But nothing in the record suggests that DEP will be issuing another final order following it's receipt of the more detailed grading and revegetation plans, whose approval by DEP is not subject to administrative challenge (absent successful judicial action to force DEP to provide another point of entry). (The record does not reveal whether DEP would provide Applicant with another point of entry if DEP were to disapprove the more detailed plans and decline to issue the Notice to Proceed.) The absence of an agency-recognized point of entry to challenge the detailed plans means that the analysis necessary to make the determinations required by law concerning the impacts of the proposed activities must be limited to the Permit, as it presently exists, and these determinations may not rely upon additional protections that may be supplied by more detailed plans that are not yet in existence. DEP and Applicant settled DOAH Case No. 99-3913 shortly prior to the final hearing. The settlement stipulation incorporates a new site plan showing the proposed residence moved landward so that it is seven feet landward of the vegetation line, but setback only three feet from the northeast property line (adjoining Lot 11) and five feet from the southeast property line (adjoining the alley). DEP approved the settlement on or about March 17, 2000. By letter dated March 22, 2000, DEP's counsel advised Applicant's counsel that DEP would announce at the final hearing that "it intends to issue the [Permit] . . . in accordance with the agreed location in [the revised site plan] and all other applicable conditions of the June 29, 1999, final order and June 30, 1999, letter from [DEP] to Charles Rose." The CCCL permit is dated June 29, 1999, and expires on June 29, 2002. References to the "Permit" shall include the subsequent modifications that resulted in the settlement of DOAH Case No. 99-3913 and the modifications described below. Petitioner objected to all evidence and any express or implied amendment of the pleadings at the final hearing to encompass subsequent Permit modifications, but the Administrative Law Judge overruled these objections. The Permit authorizes Respondent to conduct activities in a location that is seaward of the CCCL, but landward of the 30-year erosion projection and the existing line of construction established by major structures in the immediate area. According to the survey dated October 15, 1998, and architect's plans dated November 12, 1998, the residence to be constructed would be an elevated two-story frame structure, over a concrete pad, with a footprint of 952 square feet. The proposed structure would be similar in size and character to other residences in the area. A registered architect has signed and sealed all relevant construction plans. For the purpose of this recommended order, the seaward side of Lot 10 is its 110-foot side facing the southwest. This southwest property line runs from the west corner to the south corner of Lot 10. The north and east corners mark the 110-foot side of Lot 10 that abuts Lot 11; this is the northeast property line. As already noted, the two 50-foot sides of Lot 10 abut Elm Avenue and the unnamed 10-foot alley. As it exists in the ground, Elm Avenue is a strip of pavement 17 feet wide located in the middle of the 50-foot wide platted right-of-way. At present, the paved portion of Elm Avenue does not extend seaward of the midpoint of Lot 11. Applicant proposes the construction of a shell drive between the Elm Avenue right-of-way and the north corner of Lot 10, but this proposed activity is not the subject of the present case. The road right-of-way immediately adjacent to Lot 10 was occupied by a 60-foot wooden access walkway extending from the end of the road seaward, between the rock groin and the northwest line of Lot 10. However, this walkway was removed in the past couple of years. At present, the rock groin parallel to the northwest line of Lot 10 occupies the center of the road right-of-way, extending from Lot 10's midpoint, which is landward of the seasonal high water line, to a point seaward of mean sea level. Another rock groin runs from the unnamed alley along the southeast line of Lot 10, also from a point just landward of the seasonal high water line, and extends seaward of mean sea level. Running parallel to the two 50-foot lot lines of Lot 10 and perpendicular to the shoreline, these two rock groins may offer some protection from erosion by affecting sand traveling offshore, but do not otherwise directly offer any protection to the beach and dune system. As established by Applicant, landward from the Gulf, relevant natural features are located as follows. Mean sea level, which is 0.00 feet National Geodetic Vertical Datum (NGVD), is over 50 feet seaward of the west corner of Lot 10 and over 100 feet seaward of the south corner of Lot 10. Mean high water, which is 1.2 feet NGVD, is 35 feet seaward of the west corner of Lot 10 and about 75 feet seaward the south corner of Lot 10. Seasonal high water, which is 3.63 feet NGVD, is about 10 feet landward of the west corner of Lot 10 and about 25 feet seaward of the south corner of Lot 10. About 15-20 square feet of the relatively low west side of Lot 10 is submerged at seasonal high water. In two respects, Petitioner's survey, which was dated March 25, 2000, establishes that, at least for the past 16 months, the beach and dune system is flourishing, not eroding. First, mean high water is now farther from Lot 10 than it was in late 1998. In the intervening 16 months, the mean high water line has migrated to a point 77 feet seaward of the west corner of Lot 10--a distance of 37 feet in less than one and one- half years. During the same period, the mean high water line has migrated from 75 feet to 102 feet--a distance of 27 feet--seaward of the south corner of Lot 10. Second, the newer survey reveals that the seven-foot contour, which is shown on Applicant's survey as a small area at the midpoint of the southeast lot line, now extends across the southeastern two-thirds of the central portion of the lot. It is difficult to estimate from the surveys, but the area of at least seven-foot elevation appears to be six or seven times larger than it was 16 months ago, although a very small area of eight-foot elevation shown on Applicant's survey appears to have disappeared. Both surveys show that the six-foot contour line roughly bisects Lot 10 diagonally from the north to the south corners. Evidence of beach stability supplied from the March 2000 survey is reinforced by anecdotal testimony that the beach at this location has been stable for at least 20 years. In general, the beach at this location is not as dynamic as beaches found elsewhere in Florida. The CCCL is about 259 feet landward of the north corner of Lot 10 and about 222 feet landward of the east corner of Lot The CCCL is landward of Petitioner's Lots 11 and 12, as well as the next two 50-foot wide lots and nearly the entirety of Gulf Drive (Snapper Street on the plat) adjoining this block. According to Applicant's survey, the seaward toe of the frontal dune runs roughly along the seaward six-foot contour, perhaps 10 feet seaward of this contour at the west corner and a perhaps five feet landward of this contour at the south corner. The vegetation line runs 3-5 feet landward of the surveyed seaward toe of the dune. According to Applicant's survey, the frontal dune continues over the landward half of Lot 10, excluding only a 10-square-foot area at the east corner and extending well across the southeastern line of Lot 11, so as to capture about one-fifth of that lot. However, the surveys do not support an independent determination of the toes of the frontal dune or, thus, its width. DEP's expert testified that the landward toe of the dune is probably landward of the surveyed location. Also, the scale of the surveys did not facilitate analysis of subtle changes in slope, which would be indicative of the toes of a low frontal dune, such as is involved in this case. DEP's expert opined that a maximum elevation of seven or eight feet NGVD meant, at this general location, that the toes would probably be at the five- foot contours. If so, the seaward toe would be about 10-15 feet seaward of its surveyed location, and the landward toe would be at an undetermined location landward of Lot 10. Several dynamic processes underlie the beach and frontal dune system. Perhaps most obviously, plants rooted in a dune capture sand and, thus, add to the size of a dune. The absence of such plants facilitates a reduction in dune size. The stability of a dune is also affected by the slopes of its seaward and landward sides and the size of the grains of sand constituting the dune. When restoring a dune, adherence to historic slopes and elevations enhances the possibility of a successful dune restoration. Deviation from these slopes and elevations raises the risk of failure. The same is true regarding the size and characteristics of the grains of sand used to restore a dune. Another factor important in dune stability, as well as upland protection, is the continuity of the dune. A shorter dune, in terms of its length running parallel to the shoreline, is less stable and obviously offers less landward protection than a longer dune. As originally proposed, Respondent's home would occupy the east corner of Lot 10. The southwest side of the residence (facing the Gulf) would have been about one foot seaward of the vegetation line and only one to two feet landward of the surveyed seaward toe of the frontal dune. The landward side of the residence would have been 10 feet seaward of the northeast side of Lot 10. The proposed home would have been setback 10 feet from the northeast and southeast property lines. Shortly prior to the commencement of the hearing, Applicant modified the proposed plans, and DEP modified the Permit. These changes would relocate the proposed residence so that it was seven feet landward of the vegetation line, but setback only three feet from the northeast line and five feet from the southeast line. Despite its relocation landward from its original proposed location, the entire residence would occupy the frontal dune. More specifically, the residence would sit on the seaward side of the frontal dune. The Permit imposes a number of special conditions upon the construction of Respondent's residence. Consistent with DEP's bifurcation of the permitting process in this case, these special conditions prohibit the commencement of construction until Respondent submits plans and specifications "includ[ing] or reflect[ing] the following:" 1.1 A revised site plan including the distances relative to coastal construction control line to all the authorized structures with dimensions. The revised site plan shall depict the dwelling relocated to within 3 feet of the upland lot line and not exceeding a distance of 244 feet seaward. * * * 1.5 A revised grading plan depicting the restored dune extending across the entire parcel with a minimum crest elevation of +7.0 feet (NGVD). * * * The fill material shall be obtained from a source landward of the control line and shall consist of sand which is similar to that already on the site in both grain size and coloration. This fill material shall be free of construction debris, rocks, or other foreign matter. A sample of the sand shall be provided to the staff representative during the preconstruction conference. All permanent exterior lighting shall be installed and maintained as depicted in approved lighting schematic. No additional exterior lighting is authorized. CAVEAT: Due to potential adverse impacts to the beach and dune system that may result from additional development on the property, the shore-parallel and seaward extent of the permitted structures shall not be increased, nor will any additional major structures be permitted which would exceed the limits established by the permitted construction seaward of the coastal construction control line. The present proposed location of the residence is not landward of a line running 244 feet seaward of the CCCL. Roughly one-third of the proposed residence would be seaward of this line, which is set forth in the Permit. Addressing the obvious conflict between the restriction contained in Permit Paragraph 1.1 prohibiting any structure seaward of a point 244 feet seaward of the CCCL and its approval of the new location for the residence, DEP announced at the hearing a new Permit Paragraph 1.1, which reads: The revised site plan shall depict the dwelling relocated within three feet of the upland lot line and not exceeding a distance of 250 feet seaward of the CCCL on the southwest corner and 255 feet seaward of the CCCL on the northwest corner. (Tr., pp. 119-20.) The revised site plan clarifies that the reference to "three feet" means the three-foot setback on the northeast lot line. The references to the southwest and northwest corners are, respectively, to the southernmost corner, which, when used with respect to Lot 10 in this recommended order, is described as the south corner, and the westernmost corner, which, when used with respect to Lot 10 in this recommended order, is described as the west corner. (For ease of reference at the hearing, counsel, the witnesses, and Administrative Law Judge reoriented Lot 10 by referring to the southwest lot line as the west lot line and treating the Gulf, which is southwest of Lot 10, as though it were due west of Lot 10.) At present, Applicant has submitted no grading plans, which would address the seaward toe of the frontal dune after construction. The landward toe is not on Applicant's property, so Applicant will not be able to change the slope of the landward side of the dune by adding sand to the portion of this dune not contained within Lot 10. As identified to this point, the Permit's requirements for dune restoration are sketchy, reliant upon more detailed grading plans that are not yet in existence. Permit Paragraph 5 adequately specifies the grain size. However, the Permit fails to specify the slopes, leaving this crucial element of the dune to the more detailed grading plans. Under the Permit, Applicant would be required to supply a specified volume of sand to the site. This volume was calculated to be sufficient, based on Applicant's survey, to raise the portion of the dune northwest of the seven-foot contour to an elevation of seven feet NGVD. However, if Petitioner's survey is correct, much less sand will be needed to raise the elevation to seven feet NGVD, so the "excess" sand will widen the dune. This recommended order has credited both surveys, so Applicant's survey provides the relevant details except for the more recent information supplied by Petitioner's survey concerning the locations of the mean high water line and the seven-foot contour. The widening of the dune authorized by the Final Order necessarily changes the dune's profile by extending the seaward toe closer to the shoreline and probably changes the slope of the seaward toe of the dune. Additionally, raising the elevation of the dune in the northeastern portion of Lot 10 will dramatically change its landward profile, given the fact that Applicant cannot add sand to the large portion of the dune landward of Lot 10. The effects of these alterations of the dune profile are entirely unknown to Applicant and DEP. Failing to perform the preliminary tasks of locating the existing dimensions of the dune--in terms of its width (perpendicular to the shoreline) and its length (parallel to the shoreline)-- Applicant and DEP lacked the baseline data upon which they could then analyze the construction and post-construction effects of placing Applicant's residence atop this dune. The present stability of the beach and dune system at Lot 10 does not dispense with the necessity of such analysis in making the determinations required by the relevant law. Additionally, the Permit fails to address the revegetation of the dune, again leaving this issue to more detailed plans not yet in existence. Specifically, Applicant has submitted no plans establishing a replanting scheme with specified species at specified distances, criteria by which to measure the success of the revegetation process (e.g., X percent coverage after one year), and a monitoring and enforcement program. Lastly, although the City of Anna Maria issued a letter approving of the proposed plans when Applicant proposed ten-foot setbacks, the City of Anna Maria has not had a chance to comment upon the proposal of three- and five-foot setbacks. Land use regulations of the City of Anna Maria require greater setbacks than these. As distinguished from its treatment of the dune profile and vegetation, the Permit supplies ample assurances that the proposed activities would be conducted in such a way as not to disturb nesting sea turtles, which, according to the record, infrequently occupy this specific location. Permit provisions, such as those scheduling construction and governing construction and post-construction lighting, adequately address the relatively simple task of protecting this lightly used nesting habitat.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application for a coastal construction control line permit to construct a residence at the location indicated at the hearing. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Adam Mohammadbhoy Harllee Porges Post Office Box 9320 Bradenton, Florida 34205 S.W. Moore Brigham Moore 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237 Francine M. Ffolkes Senior Assistant General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-9314
The Issue The issue to be determined in these consolidated cases is whether the U.S. Army Corps of Engineers (“Corps”) and the City of Sarasota (“City”) (sometimes referred to as “the Applicants”) are entitled to the proposed joint coastal permit, public easement, and sovereign submerged lands use authorization (referred to collectively as “the Permit”) from the Department of Environmental Protection (“DEP”) and the Trustees of the Internal Improvement Trust Fund to dredge sand from Big Sarasota Pass and its ebb shoal and place the sand on the shoreline of Lido Key.
Findings Of Fact The Parties Petitioner Siesta Key Association, Inc. is a Florida Not for Profit Corporation, with its principal place of business in Sarasota. The organization has approximately 1,425 members and represents the interests of those who use and enjoy Siesta Key’s beach and waters. A substantial number of its members have substantial interests in the use of the beach and adjacent waters. Petitioner Michael S. Holderness is a resident and property owner on Siesta Key. Mr. Holderness has substantial interests in the protection of his property and the use of the beach at Siesta Key and adjacent waters. Petitioner Save Our Siesta Sands 2, Inc. is a Florida Not For Profit Corporation, with its principal place of business in Sarasota. The organization has over 700 members and was formed in opposition to the current dredging proposal. A substantial number of its members have substantial interests in the use of the beach at Siesta Key and adjacent waters. Petitioners Peter van Roekens and Diane Erne are residents and property owners on Siesta Key. They have substantial interests in the protection of their properties and the use of the beach at Siesta Key and adjacent waters. Respondent City of Sarasota is an incorporated municipality in Sarasota County. It is a co-applicant for the Permit. Respondent Corps is the federal agency responsible for the Lido Key Hurricane and Storm Damage Reduction Project first authorized by Congress in 1970. Under this Project, the Corps has conducted periodic maintenance, inlet dredging, surveys, and bypassing to protect Lido Key’s shoreline. The Corps is a co-applicant for the Permit. Respondent DEP is the Florida agency having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of chapters 161, 373, and 403, Florida Statutes, and rules promulgated thereunder in Titles 62 and 62B of the Florida Administrative Code, which pertain to the permitting of construction activities in the coastal zone and in surface waters of the state. DEP acts as staff to the Board of Trustees of the Internal Improvement Trust Fund. Intervenor Lido Key Residents Association is a Florida Not for Profit Corporation incorporated in 1980 and with its principal place of business in Sarasota. The organization represents the interests of regular users of Lido Key Beach. A substantial number of its members have substantial interests in the use of the beach at Lido Key and adjacent waters. The Project Area Lido Key is a 2.6-mile-long, manmade barrier island constructed in the 1920s, located on the Gulf of Mexico and within the City of Sarasota. North of Lido Key is New Pass, a navigation channel that separates Lido Key from Longboat Key. South of Lido Key is Big Sarasota Pass and the ebb shoal of the pass. Further south is Siesta Key, a natural barrier island. Sediment Transport In the project area, sand generally drifts along the various shorelines from north to south. There can be sand drift to the north during some storm events, currents, and tides, but the net sand drift is to the south. It is sometimes called “downdrift.” Whatever downdrift conditions existed 100 years ago, they were substantially modified by the creation of Lido Key. For decades, the shoreline of Lido Key has been eroding. Since 1964, the Corps has periodically dredged New Pass to renourish the shoreline of Lido Key. The City has also used offshore sand to renourish Lido Key. These renourishment projects have not prevented relatively rapid erosion of the shoreline. A 2.4-mile-long segment of the shoreline of Lido Key has been designated by DEP as “critically eroded.” The Big Sarasota Pass ebb shoal has been growing and now has a volume of about 23 million cubic yards (“cy”) of sand. The growth of the ebb shoal is attributable to the renourishment projects that have placed over a million cy of sand on Lido Key and Longboat Key. The growth of the ebb shoal has likely been a factor in the southward migration of the main ebb channel of Big Sarasota Pass, closer to the northern shoreline of Siesta Key. Most of the west-facing shoreline at Siesta Key has experienced significant accretion. It is unusually wide for a Florida beach. It was named the best (“#1”) beach in the United States by “Dr. Beach,” Dr. Steven Leatherman, for 2011 and 2017. The Project The federally-authorized Lido Key Hurricane and Storm Damage Reduction Project includes the use of New Pass as a supplemental sand source for renourishing Lido Key. However, the use of New Pass is the subject of separate DEP permitting. The project at issue in this proceeding only involves the renourishment of Lido Key and is named “Lido Key Beach Renourishment and Groins.” The Applicants conducted a study of the ebb shoal to determine whether it could be used as a permanent sand source to renourish Lido Key. The study consisted of an environmental feasibility study and an inlet management program for Big Sarasota Pass and New Pass with alternative solutions. The application for the Permit was a response to this study. The proposed sand source or borrow areas are three dredge “cuts.” Cuts B and D are within the ebb shoal. Cut C extends through the ebb shoal and partly into Big Sarasota Pass. Cut C generally follows an existing “flood marginal channel.” The sand from the cuts would be placed along the central and southern 1.6 miles of Lido Key to fill a beach “template.” The design width of the renourished beach would be 80 feet. The initial placement would be wider than 80 feet to account for erosion. The Permit would have a duration of 15 years. The Applicants’ intent is to initially place 950,000 cy of sand on Lido Key. After the initial renourishment, sand would be dredged from one or more of the three designated cuts about every five years to replace the sand that eroded away, and would probably be on the scale of about 500,000 cy. The numerical modeling of the proposed project assumed the removal of up to 1.3 million cy of sand from the three cuts. One of DEP’s witnesses testified that the Permit authorizes the removal of up to 1.732 million cy of sand. The record does not support that testimony. The Applicants did not model the effects of dredging 1.732 million cy of sand from the ebb shoal and pass. There is insufficient evidence in the record to support an authorization to remove more than 1.3 million cy of sand. Although the total volume of sand in the three cuts is 1.732 million cy, it is reasonable for the dimensions of the cuts and the proposed easement that is based on these dimensions to contain more material than is authorized to be removed, so as to provide a margin to account for less-than-perfect dredging operations. Therefore, it is found that the Permit authorizes up to 1.3 million cy of sand to be removed from the designated borrow areas. The findings of fact and conclusions of law in this Recommended Order that address the expected impacts of the proposed project are based on this finding. The Permit also authorizes the construction of two rubble mound groins at the southern end of Lido Key to stabilize the beach and lengthen the time between renourishment events. The groins are designed to be semi-permeable so that they “leak” sand. There are no seagrasses in the renourishment area and mostly scattered and thin patches of seagrass near the dredge cuts. The Permit requires mitigation for the potential direct impacts to 1.68 acres of seagrasses. To offset these impacts, the Applicants propose to create 2.9 acres of seagrass habitat. The seagrass habitat would be established at the Rookery at Perico Seagrass Mitigation Basin in Manatee County, about 16 miles north of Big Sarasota Pass. The Permit incorporates the recommendations of the Florida Fish and Wildlife Conservation Commission regarding protections for turtles, nesting shorebirds, and manatees. The Permit requires regular monitoring to assess the effects of the project, and requires appropriate modifications if the project does not meet performance expectations. Project Engineering The Corps’ engineering analysis involved three elements: evaluating the historical context and the human influences on the regional system, developing a sediment budget, and using numerical modeling to analyze erosion and accretion trends near the project site. A principal objective of the engineering design for the borrow areas, sand placement, and groins was to avoid adverse effects on downdrift, especially downdrift to Siesta Key. The Corps developed a sediment budget for the “no action” and post-project scenarios. A sediment budget is a tool used to account for the sediment entering and leaving a geographic study area. The sediment budgets developed by the Corps are based on sound science and they are reliable for the purposes for which they were used. The post-project sediment budget shows there would be minimal or no loss of sediment transport to Siesta Key. Petitioners did not prepare a sediment budget to support their theory of adverse impact to Siesta Key. Petitioners object to the engineering materials in the Permit application because they were not certified by a Florida registered professional engineer. DEP does not require a Florida professional engineer’s certification for engineering work submitted by the Corps. As explained in the Conclusions of Law, Florida cannot impose licensing conditions on federal engineers. Ebb Shoal Equilibrium Petitioners’ witness, Dr. Walton, developed a formula to estimate ebb shoal volume equilibrium, or the size that an ebb shoal will tend to reach and maintain, taking into account bathymetry, wave energy, tides, adjacent shorelines, and related factors. In an article entitled “Use of Outer Bars of Inlets as Sources of Beach Nourishment Material,” Dr. Walton calculated the ebb shoal equilibrium volume for the Big Sarasota Pass ebb shoal as between 6 and 10 million cy of sand. The ebb shoal has been growing and is now about 23 million cy of sand, which is well in excess of its probable equilibrium volume. The volume of sand proposed to be removed from the ebb shoal is only about six percent of the overall ebb shoal volume. Dr. Walton’s study of the use of ebb shoals as sand sources for renourishment projects supports the efficacy of the proposed project. Modeling Morphological Trends The Corps used a combined hydrodynamic and sediment transport computer model called the Coastal Modeling System, Version 4 (“CMS”) to analyze the probable effects of the proposed project. The CMS model was specifically developed to represent tidal inlet processes. It has been used by the Corps to analyze a number of coastal projects. Dr. Walton opined that the CMS model was inappropriate for analyzing this project because it is a two-dimensional model that is incapable of accounting for all types of currents and waves. However, a two-dimensional model is appropriate for a shallow and well-mixed system like Big Sarasota Pass. Dr. Walton’s lack of experience with the CMS model and with any three-dimensional sediment transport model reduced the weight of his testimony on this point. Petitioners contend that the CMS model was not properly calibrated or verified. Calibration involves adjustments to a model so that its predictions are in line with known conditions. Verification is the test of a model’s ability to predict a different set of known conditions. For calibrating the hydrodynamic portion of the model, the Corps used measurements of water levels and currents collected in 2006. The model showed a 90-percent correlation with water surface elevation and 87-percent correlation to velocity. Dr. Walton believes a model should exhibit a 95-percent correlation for calibration. However, that opinion is not generally accepted in the modeling community. Model verification, as described by Dr. Walton, is generally desirable for all types of modeling, but not always practical for some types of modeling. A second set of field data is not always available or practical to produce for a verification step. In this case, there was only one set of sea floor elevations available for verification of the CMS model. It is the practice of DEP in the permitting process to accept and consider sediment transport modeling results that have not been verified in the manner described by Dr. Walton. The Corps described a second calibration of the CMS model, or “test of model skill,” as an evaluation of how well the CMS model’s sediment transport predictions (morphological changes) compared to Light Detection and Ranging (“LIDAR”) data collected in 2004. The CMS model successfully reproduced the patterns of erosion and sediment deposition within the area of focus. Petitioners’ expert, Dr. Luther, testified that, over the model domain, the CMS model predictions differed substantially from LIDAR data and believes the discrepancies between the model’s predictions and the LIDAR data make the model’s predictions unreliable. Modeling sediment transport is a relatively new tool for evaluating the potential impacts of a beach renourishment project. Renourishment projects have been planned, permitted, and carried out for decades without the use of sediment transport models. Now, modeling is being used to add information to the decision-making process. The modeling does not replace other information, such as historical data, surveys, and sediment budgets, which were heretofore used without modeling to make permit decisions. Sediment transport is a complex process involving many highly variable influences. It is difficult to predict where all the grains of sand will go. Sediment transport modeling has not advanced to the point which allows it to predict with precision the topography of the sea floor at thousands of LIDAR points. However, the CMS model is still useful to coastal engineers for describing expected trends of accretion and erosion in areas of interest. This was demonstrated by the model’s accurate replication of known features of the Big Sarasota Pass and ebb shoal, such as the flood marginal channels and the bypassing bars. The CMS model’s ability to predict morphological trends assisted the Applicants and DEP to compare the expected impacts associated with alternative borrow locations on the ebb shoal and pass, wave characteristics, and sediment transport pathways. Together with other data and analyses, the results of the CMS model support a finding that the proposed dredging and renourishment would not cause significant adverse impacts. The Applicants extensively analyzed sediment transport pathways and the effects of alternative borrow areas on sediment transport to Siesta Key. Petitioners’ hypothesis is not supported by engineering studies of equivalent weight. The more persuasive evidence indicates that sediment transport to downdrift beaches would not be reduced and might even be increased because sediment now locked in the ebb shoal would reenter the sediment transport pathways. In addition, the proposed dredging may halt the southward migration of the main ebb channel of Big Sarasota Pass, and thereby reduce erosive forces on the interior shoreline of north Siesta Key. Wave Energy Petitioners assert that the proposed dredging would result in increased wave energy on Siesta Key because the diminished ebb shoal would no longer serve as a natural buffer against wave energy from storms. They conducted no studies or calculations to support this assertion. Because the proposed dredging would remove a small percentage of the total ebb shoal volume, the ebb shoal would remain a protective barrier for Siesta Key. Wave energy reaching the shorelines along Big Sarasota Pass or within Sarasota Bay would continue to be substantially reduced by the ebb shoal. The predicted increase in wave energy that would occur as a result of the project could increase the choppiness of waters, but would not materially increase the potential for wave-related erosion. Petitioners conducted no studies and made no calculations of their own to support their allegation that the project would significantly increase the potential for damage to property or structures on Siesta Key due to increased wave energy. To the extent that Petitioners’ expert coastal engineer opined otherwise, it was an educated guess and insufficient to rebut the Applicants’ prima facie case on the subject of wave energy. Groins Petitioners contend that the two proposed groins would adversely impact the beaches of Siesta Key because the groins would capture sand that would otherwise drift south and benefit Siesta Key. However, the preponderance of the evidence shows the groins would not extend into or obstruct the sand “stream” waterward of the renourished beach. The historic use of groins to capture downdrift resulted in adverse impacts to adjacent beaches. However, the use of groins in conjunction with beach renourishment to stabilize a renourished beach and without obstructing downdrift is an accepted practice in coastal engineering. The proposed groins would not obstruct longshore sediment transport and, therefore, would not interfere with downdrift to Siesta Key. Public Interest - General Section 373.414(1) requires an applicant to provide reasonable assurance that state water quality standards will not be violated, and reasonable assurance that a proposed activity is not contrary to the public interest. However, if the proposed activity significantly degrades or is within an Outstanding Florida Water (“OFW”), the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest. Sarasota Bay, including Big Sarasota Pass and portions of Lido Key, have been designated as an OFW. Therefore, the Applicants must demonstrate that the proposed project is clearly in the public interest. In determining whether an activity is clearly in the public interest, section 373.414(1)(a) requires DEP to consider and balance seven factors: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of section 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. DEP determined that the project is clearly in the public interest because it would improve public safety by providing protection to Lido Key upland structures from storm damage and flooding, protect and enhance wildlife habitat, and provide beach-related recreational opportunities; and it would create these public benefits without causing adverse impacts. Public Interest - Safety Petitioners contend that the proposed project would adversely affect public health, safety, welfare, or the property of others because it would interrupt downdrift and substantially reduce the storm protection provided by the ebb shoal. As found above, the preponderance of the evidence does not support this contention. Public Interest - Conservation of Fish and Wildlife Petitioners contend that the proposed project would adversely affect the conservation of fish and wildlife, including endangered or threatened species. The Permit application materials provided evidence that the proposed project would have no effects, or only minimal temporary effects, on water quality, temperature, salinity, nutrients, turbidity, habitat, and other environmental factors. That was sufficient as a prima facie showing that the project would not adversely affect the conservation of fish and wildlife because, if environmental factors are not changed, it logically follows that there should be no adverse impacts to fish and wildlife. Therefore, as explained in the Conclusions of Law, the burden shifted to Petitioners to present evidence to show that adverse effects to fish and wildlife would occur. It was not enough for Petitioners to simply contend that certain fish species were not adequately addressed in the application materials. With the exception of Dr. Gilmore’s field investigation related to the spotted seatrout, Petitioners conducted no studies or field work of their own to support their allegations of adverse impacts to fish and wildlife. Dr. Gilmore discovered that spotted seatrout were spawning in Big Sarasota Pass. Such spawning sites are not common, are used repeatedly, and are important to the conservation of the species. Spotted seatrout spawn from April through September. The record does not show that the Florida Fish and Wildlife Conservation Commission, the U.S. Fish and Wildlife Service, or the National Marine Fisheries Service were aware that Big Sarasota Pass was a spawning area for spotted seatrout, or considered this fact when commenting on the project. The spotted seatrout is not a threatened or endangered species, but DEP is required to consider and prevent adverse impacts to non-listed fish species, as well as recreational fishing and marine productivity. If the proposed project would destroy a spotted seatrout spawning area, that is a strong negative in the balancing of public interest factors. The Applicants do not propose mitigation for adverse impacts to spotted seatrout spawning. Seagrass sites close to the spawning area are used by post-larval spotted seatrout for refuge. The likely seagrass nursery sites for seatrout spawning in Big Sarasota Pass are depicted in SOSS2 Exhibit 77. The proposed seagrass mitigation at the Perico Rookery Seagrass Mitigation Basin, over 16 miles away, would not offset a loss of this refuge function because it is not suitable as a refuge for post-larval spotted seatrout. The spawning season for spotted seatrout occurs during the same months as turtle nesting season, and DEP argued that the turtle protection conditions in the Permit to limit lighting and prohibit nighttime work, would also prevent adverse impacts to the spotted seatrout. However, spotted seatrout spawning is also threatened by turbidity and sedimentation in the spawning area and adjacent seagrasses. The spotted seatrout spawning area is in the area where dredge Cut B is located. If Cut B were dredged during the spawning season, it would likely disrupt or destroy the spawning site. Reasonable assurance that the proposed project would not disrupt or destroy the spawning site requires that Cut B not be dredged during the spawning season. Seagrasses that are likely to provide refuge to post- larval seatrout are near the most eastern 1,200 feet of Cut C. Reasonable assurance that the proposed project would not disrupt or destroy the refuge function requires that the most eastern 1,200 feet of cut C not be dredged during the spawning season. In summary, the proposed project would adversely affect the conservation of fish and wildlife unless dredging was restricted during the spotted seatrout spawning season, as described above. Public Interest – Navigation, Flow of Water, and Erosion Petitioners contend that the proposed project would adversely affect navigation, the flow of water, and would cause harmful erosion to Siesta Key, but Petitioners conducted no studies or calculations to support this assertion. The preponderance of the evidence shows that no such adverse impacts would occur. Public Interest – Recreational Values Petitioners contend that the proposed project would adversely affect fisheries and associated recreation because of harm to spotted seatrout and other fish species. As found above, the preponderance of the evidence shows the project would adversely affect the spotted seatrout, an important recreational fish species, unless dredging was restricted during the spawning season. Public Interest - Value of Functions Petitioners contend that the proposed project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed project because dynamic inlet system would be disrupted. As found above, the preponderance of the evidence shows the project would not adversely affect the coastal system. However, it would adversely affect the spotted seatrout spawning and refuge functions provided by Big Sarasota Pass unless dredging was restricted during the spawning season. Mitigation If a balancing of the public interest factors in section 373.414(1)(a) results in a determination that a proposed project is not in the public interest, section 373.414(1)(b) provides that DEP must consider mitigation offered to offset the adverse impacts. Although the Perico Rookery at Seagrass Mitigation Basin is within the OFW and the same drainage basin, it does not fully offset the adverse impacts likely to be caused by the proposed project. The mitigation would not offset the loss of spotted seatrout spawning and refuge functions. The mitigation for the loss of spotted seatrout spawning and refuge functions is unnecessary if the impacts are avoided by restricting dredging during the spawning season as described above. Design Modifications Petitioners contend that the Applicants did not evaluate the alternative of taking sand from offshore borrow areas for the renourishment. The record shows otherwise. Furthermore, as explained in the Conclusions of Law, the Applicants were not required to address design modifications other than alternative locations for taking sand from the ebb shoal and Big Sarasota Pass. Consistency with the Coastal Zone Management Program Petitioners contend that DEP failed to properly review the Permit for consistency with the Florida Coastal Zone Management Program (“FCZMP”), because DEP failed to obtain an affirmative statement from Sarasota County that the proposed project is consistent with the Sarasota County Comprehensive Plan. The State Clearinghouse is an office within DEP that coordinates the review of coastal permit applications by numerous agencies for consistency with the FCZMP. It is the practice of the State Clearinghouse to treat a lack of comment by an agency as a determination of consistency by the agency. With respect to this particular project, the State Clearinghouse provided a copy of the joint coastal permit application to the Southwest Florida Regional Planning Council (“SWFRPC”) for comments regarding consistency with local government comprehensive plans. SWFRPC submitted no comments. In a letter dated June 26, 2015, the State Clearinghouse reported to the Corps that “at this stage, the proposed federal action is consistent with the [FCZMP].” In a written “peer review” of the proposed project produced by the Sarasota Environmental Planning Department in October 2015, some concerns were expressed, but no mention was made of inconsistency with the Sarasota County Comprehensive Plan. Sarasota County sent a letter to DEP, dated August 24, 2016, in which it requested that the Corps prepare an Environmental Impact Statement (“EIS”) for the project. Sarasota County did not indicate in its letter to DEP that the proposed project is inconsistent with any policy of the Sarasota County Comprehensive Plan. Petitioners assert that the proposed project would be inconsistent with an environmental policy of the Sarasota County Comprehensive Plan that Petitioners interpret as prohibiting the proposed dredging. The record contains no evidence that Sarasota County believes the proposed project is inconsistent with this particular policy or any other policy of its comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP issue a final order approving the proposed agency actions, but only if the joint coastal permit is modified to prohibit dredging operations in Cut B and the most eastern 1,200 feet of Cut C during April through September. If this modification is not made, it is recommended that the proposed agency actions be DENIED; and The joint coastal permit be modified to clarify that it authorizes the removal of up to 1.3 million cy of sand. DONE AND ENTERED this 8th day of May, 2018, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2018. COPIES FURNISHED: Kirk Sanders White, Esquire Florida Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Alexandrea Davis Shaw, Esquire City of Sarasota Room 100A 1565 1st Street Sarasota, Florida 34236 John R. Herin, Jr., Esquire Gray Robinson, P.A. Suite 1000 401 East Las Olas Boulevard Fort Lauderdale, Florida 33301 (eServed) Eric P. Summa U.S. Army Corps of Engineers Post Office Box 4970 Jacksonville, Florida 32232 Martha Collins, Esquire Collins Law Group 1110 North Florida Avenue Tampa, Florida 33602 (eServed) Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 (eServed) Richard Green, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Christopher Lambert, Esquire United States Army Corps of Engineers 701 San Marco Boulevard Jacksonville, Florida 32207 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
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.
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 for determination is whether Petitioners are eligible for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida.
Findings Of Fact On November 30, 1993, Vander Ploeg and Associates, Inc., on behalf of Paul Leto, Richard Meyer, and Berta Anderes (Petitioners) submitted an application to the Florida Department of Environmental Protection (Respondent) for a permit to perform construction on their property seaward of the Broward County Coastal Construction Control Line. Respondent deemed their application complete on April 18, 1994. Petitioners proposed construction will be seaward of the Coastal Construction Control Line. The proposed construction will occur on two adjacent lots in Broward County. Petitioner Leto is the owner of one of the lots described as Lot 19, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioners Meyer and Anderes are the owners of the other lot described as Lot 20, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioner Leto purchased his lot in September 1992 and Petitioners Meyer and Anderes purchased their lot in March 1993. The lots were platted in or around the 1920's. Both lots are seaward of the seasonal high water line, on a sandy beach with no frontal dune structure. They are bordered by the Atlantic Ocean on the eastern most side and by a roadway (Surf Road) which is immediately adjacent to the lots on the western most side and landward of the lots. Approximately 200 feet north of the lots is an existing structure and approximately 800 feet south of this first existing structure is another existing structure. Petitioners topographical survey, which was submitted to Respondent in December 1993, showed that Lots 19 and 20, each measured 40 feet in a shore parallel direction and 80 feet in a shore normal direction, i.e., perpendicular to the shoreline. The proposed structure will be located directly on the sandy beach. The City of Hollywood, Florida has granted Petitioners a variance. Further, the proposed construction complies with the rules, zoning regulations, and ordinances of the City of Hollywood. Petitioners' application requests a permit for the construction of a single-family residence on the lots, which will house two families. However, the proposed construction is for a duplex, not a single-family residence. Petitioners are willing, and agreeable, to changing the design of the proposed structure to comply with Respondent's specifications for a single- family residence. Additionally, the proposed construction includes a riprap which will also be located on the sandy beach. A riprap is typically used for protective armoring. No structure presently exists for the riprap to protect. Furthermore, the riprap proposed by Petitioners is not adequately designed as a coastal protection structure, and if the proposed single-family residence is modified in accordance with Respondent's specifications, the proposed modified single-family residence would not be eligible for coastal armoring. The riprap structure is not an integral part of the structural design. Petitioners are willing, and agreeable, to eliminating the riprap structure. No other issues exist as to the structural integrity of the design of the proposed project. The lots on which the proposed structure will be located are a part of the beach-dune system. The natural function of the beach provides protection to upland property. The lots on which the proposed structure will be located are subject to normal storm-induced erosion. Tide and wave forces will impact the proposed structure during storms of minor intensity, including five-year storms. The proposed structure will induce greater erosion on the lots as a result of scour due to the interaction of the storm waves and currents with the proposed structure. During the storm, the normal storm-induced erosion combined with the scour erosion will form a breach or depression in the subject property. In turn, the upland property will be exposed to greater tide and wave forces, increasing the risk of erosion and damage to the upland property. The subject lots and surrounding properties have been subjected to unnatural forces which have added to the erosion. The Port Everglades inlet has inhibited the natural downdrift of sand. The City of Hollywood's beach maintenance division has been regularly pushing sand seaward and in the process, breaking down natural forming cliffs. Even though these unnatural forces are capable of being eliminated, the normal storm-induced erosion and the scour erosion would still exists. The existing developed structures to the north and south of the subject lots appear to create a reasonably uniform line of construction. However, the developed structures have been unduly affected by erosion. The proposed structure will be located within this line of construction. During a major storm along the shoreline, waves remove sand from the beach and dune area and deposit the sand in an offshore bar. After the major storm, a recovery of the beach and dunes takes place. Normal wave activity carries the sand from the offshore bar back to the beach, and the sand is then carried landward by winds and is caught and trapped by dune vegetation; thereby reforming a dune. Constructing the structure as proposed will not locate the structure a sufficient distance landward of the beach-dune system. As a result, the proposed structure will interrupt natural fluctuation in the shoreline and not preserve the natural recovery following the storm-induced erosion. The cumulative impact on the beach-dune system by the proposed structure would be severe, i.e., the effects on the beach-dune system by repeating this same proposed structure along the subject shoreline would be severe. There would be structure-induced scour and general degradation of the beach-dune system. Additionally, the recovery potential of the subject area following a major storm event would be threatened. Over the years, the beach of the subject property has been subjected to a re-nourishment project consisting of pumping sand from offshore. This method of re-nourishment may have negatively impacted the sand bar system immediately offshore affecting the hindrance of erosion. A sand bar system immediately offshore softens wave action on the shore and aids in inhibiting erosion. The proposed structure will hinder lateral public beach access. Currently, lateral beach access exists along the beach between the existing northern developed property and the existing southern developed property. The proposed structure will be located on the sandy beach, and the seaward face of the proposed structure will be within approximately one foot of the wet sand beach. At times, the proposed structure will be surrounded by water on at least three sides. No alternative beach access would be available. The proposed riprap will also be located on the sandy beach and will further hinder lateral public beach access. 2/ Loggerhead turtles, which are nesting marine turtles, engage in nesting activities along the stretch of beach where the subject property is located. They are a threatened species, i. e., close to extension. Although they do not nest every year, the turtles usually provide several nests in a single year. Typically, one hundred eggs comprise a turtle nest. In 1992, approximately 2,221 loggerhead turtle nests were in Broward County, with 22 of these nests located within 1,000 feet of the subject property. Turtle nesting efforts have been observed in the beach area of the subject property. One nest was found within the subject property. Structures located on the sandy beach interfere with marine turtle nesting habits. If female turtles make contact with the structures, they often abort nesting attempts, which results in false crawls. Repetitive false crawls harms successful nesting, which may cause malformed egg chambers, impacting the successful incubation of the nest. Also, interaction with a structure can cause injury or death to a female turtle attempting to nest. Additionally, urbanization activity and lighting on the beach deter nesting. A loss of marine turtle nesting habitat will result if the proposed structure is constructed. Also, armoring, such as the proposed riprap, can result in nests being placed more seaward. 3/ Consequently, the nests would be threatened with tidal inundation, which would affect the mortality of the nest itself. As one nest has been located within the subject property, at least one nest or crawl per year would be affected by the proposed structure. Within 30 years, the proposed structure will be seaward of the seasonal high water line. The location of the proposed structure is seaward of the 30-year erosion projection for the subject property. Beach Defense Fund, Inc. (Intervenor) presented no evidence to show that its interest is different than the public at large and that it has substantial interest separate and apart from the public.
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 application of Paul Leto, Richard Meyer, and Berta Anderes for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida. DONE AND ENTERED this 31st day of May, 1996, in Tallahassee, Leon County, Florida. 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 31st day of May, 1996.
Findings Of Fact The Petitioner, Dr. Jack G. Nichols, is a resident of the State of Illinois. He and his parents have, for many years, owned property on Dog island, a barrier island in Franklin County, Florida. Dr. Nichols owns Lots 107 and 108 on Dog Island, and has for many years entertained plans of building a beach house on each lot, consisting of a single-family residence for himself on Lot 108 and such a house on Lot 107 for his parents. Dr. Nichols has the habit of visiting Dog island to inspect his property on his vacations and has done so from time to time prior to April, 1984. Over the years he conceived of the general type of house he wished to build and determined prior to April, 1984 to locate the houses landward of the then-existing Coastal Construction Control Line. Pursuant to Chapter 161, Florida Statutes, the Department of Natural Resources undertook to survey and delineate a new Coastal Construction Control Line for Franklin County. The location of that line is described in Rule 16B- 26.14, F.A.C. and the new jurisdictional line became effective on April 30, 1984. Dr. Nichols came to Dog Island for his vacation in April, 1984, at which time he learned for the first time that the Department of Natural Resources had adopted the new Coastal Construction Control Line. After hearing of this new jurisdictional boundary from other property owners on the island, he sought to determine how that newly-defined boundary would affect his property and his plans for constructing a beach house. He observed aerial photographs depicting the Coastal Construction Control Line which would take effect April 30, 1984. He determined that the sites he had selected for the houses on his lots would be seaward of the new control line, as opposed to the preexisting line which he had taken into account in selecting his original home site. He also learned that if the houses he envisioned were under construction upon the effective date of the new Coastal Construction Control Line then he would be able to proceed with their construction without having to obtain a permit from the Department of Natural Resources. The Petitioner had not originally intended to construct the houses on his lots as early as April, 1984, but he became concerned that if he did not commence construction prior to the effective date of the new control line, he would not be able to place the houses at the location he had previously planned for. Thus, he took steps to retain a contractor and commence construction immediately. The Petitioner contacted Mr. William A. Shults, a contractor with experience building in the coastal areas of Franklin County. Mr. Shults was available and able to undertake construction activities and the two parties entered into a contract calling for construction of a beach house for both lots on approximately April 20, 1984. Mr. Shults immediately had necessary engineering work accomplished, had plans drafted for the structures and retained a construction crew. He cleared sufficient area on both lots to accommodate the residences and thereafter, on April 26, obtained a building permit for the structures. Materials were delivered to the island by landing craft on April 26 and 27, 1984. Mr. Shults also had a truck equipped with an auger or drilling equipment transported to the island and placed on the job site on or before April 27, 1984. The plans called for construction of the houses with a piling or pole foundation, so that the houses would be constructed above the specified flood levels. The poles and other materials necessary for construction of the foundation had all been delivered by April 27, 1984. The foundation lines were marked, the corner "batter boards" placed and other minor site preparation accomplished. The holes for the piling were to have been drilled on Saturday, April 28 but the trucks with the auger machine aboard, suffered a broken axle prior to its being positioned on Dr. Nichols' lots so that it was impossible to get the auger machine to the lots on April 28 or 29. Mr. Shults and his crew attempted to pull the truck to the site, but the difficulty of the terrain rendered that impossible. There was one other piece of auger equipment on the island, but its owner was engaged in construction activity with it at the time. That person agreed to bring his machine to the site on April 29 and begin augering and placing the poles for the pilings. His work became behind schedule however, and his machine was still involved in construction activity at his own site and could not be brought to Petitioner's site on that day. Mr. Shults, upon learning that the augering machine would not be available when needed, began commencing hand-digging of the pilings with post hole diggers on April 29. This method was a slow and laborious process because the holes had to be excavated much deeper than the length of the post-hole diggers. As a result, when the hole was dug as deep as the post-hole digger could reach from the surface of the ground, a hole had to be dug alongside the piling foundation hole so that a crew member could stand down in that hole and thus dig the piling hole deeper, handing the post-hole diggers with each load of dirt up to another crew member on the surface to dump, who would then hand the post-hole diggers back to the lower-placed crew member. This made the process of digging the foundation piling holes much slower than the use of the auger equipment. In this manner, however, Shults succeeded in digging four foundation holes on Lot 105. At that point, the augering machine arrived on the site and four piling holes were dug and the pertinent poles placed in them on Lot 107 as well. Throughout this construction process, Mr. Shults' crew was working on both foundations at one time. This allowed for less costly construction due to the efficiency of undertaking the same kind of work on two structures with the same crew at the same time. Since the two lots and construction sites adjoined each other, one crew could efficiently be used for both construction sites in an economic fashion. On April 30, Shults' construction crew proceeded to work on the structure on Lot 108 to further secure and place foundation posts. The four pilings placed in the holes on Lot 107 the day before remained in place. The construction crew and most of its equipment, and most construction work, was proceeding on Lot 108 merely because of the order of Mr. Shults to his crew to finish placing the foundation posts on that lot first, on that day. During the morning of that day, representatives of the Department arrived on the site and advised Mr. Shults that the construction activities appeared to be illegal and seaward of the Coastal Construction Control Line. They advised him that any further activity of that type would be undertaken at his and the lot owner's risk and expense. Mr. Shults thus ceased activities on both lots for a time, but during the following week, after discussing the dispute with certain Department employees, arrived at the opinion that the owner's construction activities had achieved grandfather status and that no permit from the Department would be required. He thus undertook to finish placing the foundation pilings on both lots. All the foundation pilings were installed on both lots by the end of the second week of May, 1984. Mr. Shults then contacted Dr. Nichols by telephone in Illinois informing him about the progress of the job, including the height of the piling. During this conversation Dr. Nichols became concerned that the pilings on Lot 107 did not project above the surface of the ground as far as he had anticipated, thus obstructing his view of the Gulf of Mexico from the beach house which would be constructed on top of the pilings. The view would be obstructed by the existing sand dune which Dr. Nichols had not wanted to disturb, hence locating his house in the more landward position at issue. In order to provide the desired view of the Gulf over the intervening sand dune, Dr. Nichols instructed Mr. Shults to replace the existing pilings on Lot 107 with longer ones. Mr. Shults purchased new pilings, had them delivered to the site, removed the original poles and installed the new ones in their place in the same holes, including the four holes that were dug prior to the effective date of the Coastal Construction Control Line. Dr. Nichols and Mr. Shults established that the original poles had been placed with the intention that they would be the permanent foundation for the house and no decision was contemplated nor made concerning their removal and replacement with the longer poles until after the foundation was fully constructed. In any event, by its letter of May 21, 1984, advising Dr. Nichols of the alleged violation of the Coastal Construction Control Line, the Department made a "free-form" determination that the construction activities on Lot 107 before April 30, 1984, were not sufficient to confer "grandfathered" status and that the activities were illegal unless a permit was obtained. The subject petition was filed and this proceeding ensued. It is true that Dr. Nichols' original intent was not to commence construction of the beach houses as soon as he did in April, 1984 and that he only began construction at that earlier time when he learned of the impending effective date of the new Coastal Construction Control Line which would require him to obtain a permit before constructing the houses at the sites he had previously selected. However, it is equally true that Dr. Nichols' bona fide intention when he retained Mr. Shults to commence construction was to not merely clear the site and place pilings and then construct the houses at some indefinite later time, but rather to commence construction and pursue construction activities on an ongoing, uninterrupted basis through to completion of both houses on both lots. If the Department had not intervened with its letter to the effect that the Petitioner might be in violation of the Coastal Construction Control Line, construction activities on Lot 107 would have continued to completion in an uninterrupted fashion. Prior to the effective date of the Department's Coastal Construction Control Line, the Petitioner's construction activity, involving the excavation for and placing of the foundation pilings for the residence to be on Lot 107, was undertaken and engaged in a continuous, uninterrupted fashion. The decision to remove the original pilings and replace them with longer poles was not envisioned, intended or made prior to the completion of the entire pole foundation for the house on Lot 107 in the first or second week of May. It was only at this time, when the poles were all installed, that it was determined by the owner and Mr. Shults that the original pilings were not long enough to confer a sufficient view of the Gulf from the house to be constructed on top of them. Thus, the removal of the original pilings and the replacement of them with longer poles in the same holes the original pilings had been installed in, was not an interruption in the construction activities, but was rather the correction of a deficiency in the original materials. This replacement did not involve an alteration or modification of the design, extent and type of materials of the original foundation (except to the immaterial extent that the replacement poles were round instead of square). In short, the construction activity undertaken after April 20, 1984 was a good faith effort to commence construction on the house on Lot 107 and continue it to completion in an uninterrupted fashion. The parties, Dr. Nichols and Mr. Shults, intended from the beginning to use the poles first placed in that foundation as the ultimate foundation for the structure, and did not intend merely placing those original poles, which were later removed, as a subterfuge to obtain a grandfathered status for the construction activity. The construction was landward of the Coastal Construction Control Line as it existed prior to April 30, 1984.
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 Department of Natural Resources enter a Final Order determining that the structure on Lot 107, Dog Island, Franklin County, Florida is not in violation of the Department of Natural Resources permitting authority. DONE and ENTERED this 25th day of September, 1985 in Tallahassee, Florida. P. MICHAEL RUFF 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 25th day of September, 1985.
Findings Of Fact Charlotte County lies on the eastern shore of the Gulf of Mexico. The mainland is protected by a series of low lying barrier islands running more or less north and south. Manasota Key, Don Pedro Island and Gasparilla Island are the consolidated remnant of seven or more smaller islands. In all, Charlotte County has about 14 miles of sandy beach on the Gulf. The location of the shoreline is not static. Along the stretch of beach between Stump Pass and the Sarasota County line, for example, the shoreline moved gulfward between 1883 and 1975, while the shoreline south of the pass moved landward between 1883 and 1939, then gulfward between 1939 and 1975. In very broad geological terms, the tendency of barrier islands is to migrate toward the mainland, but accretion is also ongoing. In general, the Charlotte County islands have moved further into the Gulf during the last century. Annual variation is typical: accretion in summer and fall follows erosion in winter and early spring. Respondent DNR has placed reference monuments along the Charlotte County beaches every 1,000 feet or so, 68 in all. In May of 1974, DNR surveyed a profile of the beach at each station and also made a record of the bottom profile. Offshore profiles were done at every third range to a depth of 30 feet, and, at the other ranges, out to a wading depth (four feet below mean sea level). Using this information, DNR promulgated Rule 16B-26.06, Florida Administrative Code, which established the existing coastal construction control line (the 1977 line). STANDING By law, DNR's Division of Beaches and Shores has permitting authority over certain activities, notably building construction, in the area between the mean high water line and the coastal construction control line. The proposed rule amendment under challenge here would establish a new coastal construction control line (the proposed line) for Charlotte County that would lie landward of the 1977 line along most, but not all, of its length. Except for Lisa Noden, the petitioners and intervenors in these consolidated cases own property in Charlotte County on the Gulf of Mexico, including property lying between the 1977 line and the proposed line. Intervenor Boca Grande Club, Inc. owns Gulf frontage on Gasparilla Island including land lying between the 1977 line and the proposed line. On November 30, 1984, Boca Grande Club, Inc. had "the present intention to apply within the next six months for the necessary construction permits for a structure to be located on its real property," Intervenors' Exhibit No. 9, landward of the 1977 line and seaward of the proposed line. Respondent stipulated to the intervenors' standing. Dean L. Beckstead, president of Charlotte Harbor Land Company, has overseen the construction of 70 to 75 houses on that parcel of Don Pedro Island extending from Stump Pass 8000 feet south and from the Gulf of Mexico to Lemon Bay. With respect to some of these houses, construction is ongoing. The plan is to build additional housing, but no more than 50 residential units in all. In keeping with past practice, new construction would be well landward of the 1977 line, because of Mr. Beckstead's great respect for the ocean, but might be seaward of the proposed line. William McCrabb of Sarasota is an officer of a corporation, Nabob of Florida, Inc., that owns Gulf-front property on Manasota Key. He is also a general partner in a partnership that owns adjacent Gulf frontage. A 17-unit condominium has been completed on one parcel and plans exist for a 125-room hotel on the other. The only element of the hotel project seaward of the 1977 line is a planned dune overwalk. A larger portion of the hotel project would be seaward of the proposed line. Petitioner Charles Guy Batsel owns a house that sits on Gulf-front property in Charlotte County. Some 5,000 square feet of this parcel lie between the 1977 line and the proposed line. Even when obtaining a coastal construction permit does not result in changes in a project that have an adverse economic effect on a landowner, the costs associated with the permitting process itself may be substantial. The testimony of Randall Craig Norden, a developer, that he spent approximately $100,000, or at least 2.5 percent of the total cost of Phase Three of Colony Don Pedro, on attorney's fees, engineering fees, travel to Tallahassee and other expenses associated with obtaining a coastal construction permit, went unrebutted. REVISITING THE 1977 LINE After it came to the attention of DNR staff that erosion along parts of the Gulf shoreline in Charlotte County had resulted in the 1977 line's approaching the water's edge in several places, staff recommended that the line be reexamined. The Governor and Cabinet, in approving DNR's annual work program in 1983 and in voting to enter into a contract with Florida State University for, e.g., "Studies to Reestablish Control Lines," Petitioners' Exhibit No. 3, on July 1, 1983, ordered a comprehensive review. Even before the Governor and Cabinet took these actions, DNR staff performed a survey in Charlotte County in 1982 to determine beach and bottom profiles at the same points at which they had been measured in 1974, although in two or three instances, the monuments had washed away. On Manasota Key between ranges 1 (the northernmost in Charlotte County) and 5, the mean sea level line receded an average of 15 feet between May of 1974 and December of 1982. The mean sea level moved further toward the Gulf on average between ranges 6 and 11, but receded an average of 20 feet between ranges 12 and 18. Between ranges 16 and 24, no relocation of the coastal construction control line has been proposed. Displacement of sand when Stump Pass was dredged may have affected the shoreline south of the pass, although shorelines in the vicinity of inlets are ordinarily unstable. On Don Pedro Island, just south of Stump Pass, there has been accretion. Between ranges 27 and 39, which lie still further south of Stump Pass, the mean sea level line receded an average of 81 feet between May of 1974 and December of 1982. Between ranges 45 and 49 the line has moved an average of 32 feet landward while there has been accretion, on average, between ranges 50 and 55. At range 60, the northern end of Gasparilla Island, the mean sea line had receded 100 feet between May of 1974 and December of 1982 and another 10 feet by September 14, 1983. At range 61, the mean sea level line had moved seaward by 100 feet between May of 1974 and December of 1982, while at range 62 there was a seaward shift of 75 feet over the same period. At range 63, there was accretion between May of 1974 and December of 1982 but erosion brought the mean sea level line landward of its May 1974 location by September of 1983. Between ranges 6 and 67, the average recession of the mean sea level line was 76 feet. By one calculation, the county as a whole lost about 59,000 cubic yards of beach material between May of 1974 and December of 1982. Measurements made shortly before the "No Name" tropical storm occurred, in the summer of 1982, suggest that the storm did not significantly affect these measurements of long term trends. At no time did riparian landowners or officials of Charlotte County or any affected municipality make any written request that the coastal construction control line be moved, although Franz H. Ross, one of Charlotte County's county commissioners, testified at the hearing that the 1977 line needed replacement. He did not endorse DNR's proposed line. After the 1977 line was drawn, the enabling legislation was twice amended. The first reference to a 100-year storm surge appeared in 1978. Ch.78-257, Section 5, Laws of Florida (1978). More recently, storm waves as well as storm surge became a statutory criterion. Ch. 83-247, Section 2, Laws of Florida (1983). Not only have new laws and a new beach emerged since the 1977 line was established, but there have also been advances in scientific analysis and prediction of the behavior of storm waves, notably with reference to surf beats or "dynamic wave set up." ECONOMIC IMPACT STATEMENT DNR prepared a 27-page economic impact statement in which it estimated the costs of the proposed line to the agency, and costs and benefits to persons directly affected by the proposed rule; and made a detailed statement of the data and method used in making these estimates. With respect to the impact of the proposed rule on competition and the open market for employment, the economic impact statement noted that construction costs would increase under the proposed rule, causing a "market adjustment period" during which "builders would have to absorb the cost increase themselves or delay construction while prices rise sufficiently . . . Postponing of construction would tend to reduce employment . . . temporar[il]y. . . . Petitioners' Exhibit No. 5, p. 13. Although portions of the economic impact statement were originally drafted for Dade and Broward County control lines, they have obvious application to Charlotte County, as well. The thrust of the cost-benefit analysis was that construction costs would increase in the area between the 1977 line and the proposed line, but that enhanced preservation of the beaches, and decreases in flood insurance premiums and storm damage potential would more than offset these increased costs. The increase in construction costs was attributed to the expense and delay of obtaining a coastal construction permit, the additional labor and materials necessary to elevate the structure above the predicted level of storm waves in a 100-year return storm, and the relatively insignificant cost of installing stronger connections (hurricane clips for the roof and bolted- metal straps over joists to secure them to supporting piles) so that the structure could withstand wind loads of 140 miles per hour. Petitioners did not disprove the reasonableness of the permitting cost assumptions in the economic impact statement, the evidence of Colony Don Pedro's experience notwithstanding. Fire escapes and access for handicapped persons were not taken into account, but the evidence did not show that differential costs for those items would affect the conclusions of the economic impact statement. The economic impact statement assumes that buildings would have to be elevated off grade even without the additional coastal construction control requirements, and that foundations would be designed by engineers, in any case. Neither assumption was proven false. The assumption that costs increase in direct proportion with elevation yields only a very rough estimate of differential costs. The differential cost analysis did not take fully into account the criterion that applies in coastal construction permitting that relates to a structure's two-dimensional "footprint." DNR permitting staff may recommend denial of a permit even though a proposed building meets all structural integrity requirements whenever, on a site-specific basis, the area to be covered by the building fails to "minimize any expected adverse impact on the beach system." Rule 16B-33.07(2), Florida Administrative Code. In such circumstances, one resolution may be to place the proposed structure at a more landward site, and the economic impact statement does address the economic consequences of removing structures landward, but other resolutions, such as scaling down the project or decreasing floor size and adding floor(s) are not considered. In this connection, there is no mention of Charlotte County's three-story (35 feet) height limitation nor, in general, does the economic impact statement identify what Charlotte County ordinances now require for coastal construction. On the benefit side, some of the flood insurance rate comparisons are inappropriate because Charlotte County will not allow floor elevations several feet below base flood elevations set by the Federal Emergency Management Agency, as the economic impact statement assumed for comparative purposes. The rate differentials also apparently ignore the fact that the same structure at a higher elevation will be worth more and have a greater insurable value. From Petitioners' Exhibit No. 23, moreover, it appears that federally subsidized flood insurance may no longer be available in certain parts of Charlotte County. But the Sheaffer and Roland study, Respondent's Exhibit No. 14, to which the economic impact statement refers, shows that elevating a structure to the wave crest level instead of to the storm surge level of a 100-year return storm creates additional benefits in the form of lessened storm damage potential (without regard to insurance premiums) that exceed the additional costs. With respect to benefits as well as costs, the economic impact statement suffers from a failure to explicate existing requirements of local law governing building construction. Without this base line, differential costs and benefits were not and cannot be quantified precisely for the specific case of Charlotte County. But see page 12 of Petitioners' Exhibit No. 5. The evidence adduced at hearing failed, however, to discredit the general conclusion of the economic impact statement that requiring sufficient elevation and sufficiently sturdy connections to withstand a 100-year storm event, including the wave crests it would generate, was cost effective, assuming the structure is to have an engineered foundation off grade, in any event. Precise quantification of the economic impact of the site coverage criterion DNR will extend to the area between the 1977 line and the proposed line, if the latter takes effect, may be impossible. The benefits will accrue to the beach and to adjacent landowners as much as to the owner of the structure and both costs and benefits will vary from parcel to parcel with changing topography. THE SANDS OF TIME Under conditions that have recently obtained in Charlotte County, sloping sand beaches climb from the water's edge to the toe of a more or less pronounced primary sand dune, behind which other dunes undulate in succession across the barrier islands to Lemon Bay or Gasparilla Sound, from which they are occasionally insulated by mangrove swamp. Vegetation over much of the islands, which vary from 200 to 2000 feet in width, attests to their present stability. But chances are that a hurricane will in time strike, flattening the dunes, spreading the sand well inland everywhere, all the way across the islands in some places, and leaving a wide beach face without, in many places, any discernible dunes. Such a reconfiguration will ineluctably result from the major hurricane identified as the 100-year return storm. Thereafter, under more favorable weather conditions, dunes will grow and reemerge, comprised of sand the Gulf gives back as well as the sand strewn across the island by the storm, unless surface impediments prevent. The cycle complete, dunes will again stand their erosion-damping vigil against the sea, a buffer protecting the mainland, as well as insular upland. In establishing coastal construction control lines, DNR is charged by statute with the job of "defin[ing] that portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions." Section 161.053(1), Florida Statutes (1983). DNR naturally looks to the beach dune system in the configuration it is predicted to assume after a 100-year return storm in defining "that portion of the beach-dune system which is subject to severe fluctuations based on a 100- year storm . . ." The folly of limiting consideration to the landward toe of a primary dune as it existed in a period of fair weather was well illustrated by the photograph that came in evidence, as Respondent's Exhibit No. 12, of a monument placed behind a dune in St. Johns County only recently that is now well down on the beach. DNR METHODOLOGY In drawing the proposed line, DNR followed the procedure it employed in establishing coastal construction control lines in Nassau, Franklin and perhaps other counties. The line proposed for Martin County was drawn in the same fashion. By statistical inference from historical data, five characteristics of a predicted 100-year return storm are identified: central pressure deficit, radius to maximum winds, speed of hurricane system translation, hurricane direction (track angle), and landfall location or some other geographical reference. In order to assess the likelihood of various combinations of storm attributes actually observed, cumulative probability curves are generated and predictions of storms and their characteristics over several hypothetical 500- year time periods are made. Of each 500-year suite of storms, the fifth most severe is chosen as the 100-year return storm. A date between June 1 and November 30, 1982, is chosen at random and astronomical tides on that day are assumed to coincide with the 100-year return storm. Using the average characteristics of the 100-year return storm, associated wind velocities and storm surge are predicted. Astronomical tides, barometric pressure, wind stress, and the Coriolis effect all contribute to the height of the still water storm surge," the water level that you could measure at a point due to a hurricane's passage if you could turn off the waves." Dean's deposition at 31. The storm surge prediction model also takes storm waves into account: Maximum wave height is 78 percent of water depth. As storm waves approaching a beach reach the break point, their height falls by five percent, but the waves attain and exceed their former height by the time they reach shore. Waves have momentum which, as they break, is transferred, at least in part, "to the water column in the form of a wave setup." Dean's deposition at 32. For many years, "static wave setup" has been observed in wave tanks where waves of the same size have been set in motion to break against a wall of the tank. For six years or so, Drs. Dean and Chiu and others have been convinced that an additional allowance should be made for surf beats or "dynamic wave setup," to reflect the fact that waves in nature do not occur in uniform sizes at regular intervals. Their magnitude oscillates, in the case of breaking storm waves, around the still water surge elevations. To allow for dynamic wave setup, the static wave setup component of the predicted surge elevation is increased by half. The 100-year storm surge height is then used to predict, taking observed beach profiles into account, the landward penetration of waves which will have degenerated to a height of three feet and, with the aid of a mathematical model, the extent to which stormwater transporting sand offshore will cause erosion. At each range, unless a three foot wave is predicted to go further landward, the point to which erosion by offshore transport is predicted to occur is chosen as the endpoint for a segment of the coastal construction control line. Where penetration of a three foot wave farther landward is predicted, the coastal construction control line is drawn on that basis, in light of topography on either side of the range involved. In predicting the landward penetration of a three foot wave, aerial photographs or surveyor's field notes are consulted and, if there is vegetation along the range involved, a coefficient of friction is applied that simulates the existence of trees a foot in diameter with centers five feet apart. At the hearing, the use of a three foot wave horizontal penetration criterion was called into question, and there is an apparent difference of opinion between two of DNR's experts, Dean and Chiu, as to the significance a three foot wave has for the beach dune system. The three foot wave is notorious. This unassuming natural phenomenon has become laden with engineering and legal significance, ever since 1962 studies the Army Corps of Engineers performed in Galveston, Texas, showed that a three foot wave had enough energy to demolish a frame structure built on grade. If it has as much energy as that, Dr. Chiu reasons convincingly, it also has enough energy to transport significant amounts of sand and to damage vegetation. With its sand-holding properties, vegetation plays a critical role in the beach- dune system. Evidence that a three-foot wave does not rearrange substantial quantities of sand, if any was adduced, has not been credited. Even Dr. Dean reported seeing three foot waves moving substantial quantities of sediment. The mathematical erosion model, known for the inventor as the modified Kriebel model, assumes relatively higher sand dunes that are eaten away by waves transporting sand offshore. The erosion model does not take into account lateral movement of sand or the effects of waves overtopping a dune and carrying overwashed sand inland. The model predicts what distance inland an assumed storm surge will move various contours. By comparing the model's predictions to the effects of actual storms, calibration has been possible. After Hurricane Eloise hit Walton County, erosion along 25 miles of shoreline was observed and compared to the model's predictions. In order to draw a line landward of 98 percent of the points to which Eloise eroded the five foot contour, it was necessary to multiply the erosion model's prediction of the landward movement of the five foot contour by 2.5. With the 2.5 factor the model overpredicts for most of the coast affected by a storm, but underpredicts erosion for the point where the storm does its worst. The most severe erosion eats two and a half times further inland than average erosion along the affected coastline. AS APPLIED Underlying both approaches to drawing the proposed line was the prediction of the water height a 100-year return storm would produce. DNR calculated three storm surges, one for the northern, one for the central, and one for the southern Charlotte County coast, and predicted maximum water heights during a 100- year storm ranging from 13.1 to 12.7 feet above NGVD at the mean sea level line. Identifying the 100-year return storm for a particular locale is an elaborate exercise in probability theory that begins with the collection and analysis of historical data. At hearing, various criticisms of this process were advanced. Among them was the way certain data were assigned to categories or "bins." On rebuttal, the data were treated as discrete points and the result was the prediction of a storm surge .8 feet higher than the "bin" prediction method had yielded. Another criticism was the number of hurricanes selected as pertinent over the 80-year period studied. To the same effect was a criticism of the length of the period chosen. Reducing the number of storms from 28 to 20 causes the predicted storm surge to fall half a foot. Respondent's Exhibit No. In their proposed recommended order, intervenors contend Had DNR used . . . correct data in its development of the predicted 100- year storm surge level for Charlotte County, it would have simulated only 137 hurricanes for a 500-year period in Charlotte County. By simulating 182 hurricanes using the storm surge computer model, DNR simulated 45, or 33 percent, more hurricanes than justified. . . . P. 13 (footnotes omitted) The 33 percent is a red herring, since, as intervenors later note, the difference between simulating 182 hurricanes and simulating 125 hurricanes produces a difference of only .7 feet (from 12.9 to 12.2 feet) in the predicted storm surge, a difference of five or six percent. Nor was DNR's approach shown to be "incorrect." A certain amount of time at hearing was devoted to the categorization of hurricanes as alongshore (or bypassing), landfalling, or exiting. Different sources of data may be a source of confusion, if compiled with reference to different points of geographical reference. A hurricane that makes landfall in Miami may exit the peninsula in Charlotte County, while a hurricane that makes landfall in Tampa may bypass Charlotte County en route. Some confusion seems to have attended the integration of data taken from a National Weather Service publication that was used jointly with data from a NOAA source. Respondent's Exhibit No. 18 demonstrates that no significant distortion resulted, however. Among the historical storms omitted by DNR's consultants was the infamous Labor Day Hurricane of 1935, which generated storm tides of 18 feet at Marathon in the Florida Keys. Using only the 1973 NOAA data for Charlotte County yields predictions of storm surges a foot higher than DNR's consultants predicted. On Manasota Key, it was the erosion model that determined placement of the proposed line. Since the probability of the 100-year return storm hitting at any particular point on the Charlotte County coastline is virtually the same as for any other point on the Charlotte County coastline, the 2.5 factor is appropriate. The average amount of erosion over the whole of the affected coastline is of theoretical interest only. Between ranges 1 and 10 on Manasota Key, the dunes are 12 to 14 feet high, as compared to an average elevation for all three islands of slightly above five feet. The high dunes on Manasota Key, where the erosion model was used to set the proposed line, resemble the walls of a wave tank more closely than the lower dunes on Don Pedro and Gasparilla Islands, where stormwater is predicted to cross the islands and keep going. Dr. Chiu also predicted overtopping of Manasota Key. Dr. Dean's testimony was to the effect net overtopping might mean a diminution in wave height attributable to diminished dynamic wave setup of .3 to .4 feet. To this should logically be added a corresponding diminution attributable to diminished static wave set up, viz., .6 to .3 feet, for a total of up to 1.2 feet. The controversial testimony was that the storm surge model ignores altogether a documented phenomenon known variously as "initial rise," "forerunner," and "presurge anomaly," that adds 1 to 3 feet to surge elevations, and that this factor would offset any diminished wave setup almost entirely. Dr. Chiu's opinion that a three foot wave would cause overwash and damage to vegetation on Don Pedro and Gasparilla Islands, severely damaging the beach dune system, has been accepted. The contention that these phenomena are immaterial since they ware characterized as "severe impact on" instead of "severe fluctuations of" the beach dune system must be dismissed as a semantic quibble. Penetration of the three foot wave was the controlling criterion from Range 25 south to the Lee County line, although the average prediction of wave height at points where ranges intersect the proposed line is between 3.3 and 3.4 feet. These wave height predictions ignore, moreover, the erosion of the profile which is bound to occur. Witnesses on all sides agreed that a 100-year return storm would submerge Don Pedro and Gasparilla Islands. Waves three feet high and higher would travel across the barrier islands and Lemon Bay onto the mainland. In Charlotte County, use of the coefficient of friction was very conservative, inasmuch as vegetation on none of the coastal barrier islands approaches the density of trees one foot in diameter, five feet apart on centers. Trees a foot in diameter 15 or 20 feet apart cause only a four percent reduction in wave height every 100 feet as compared to the 20 percent reduction every 100 feet assumed for vegetated ranges in Charlotte County. PROOF IN PUDDING The conservatism of DNR's methodology is shown by damage done landward of the coastal construction control line in Franklin County, where a road upland from the line washed out during a storm of less than 100-year return magnitude and in Martin County, where as the result of a 10-year return storm severe topographical fluctuations were seen landward of the coastal construction control line proposed there. The storm surge model has been calibrated against storms of record, which has demonstrated its reliability, whatever the merits of its theoretical underpinnings. Even assuming some problems with the categorization of storm parameters put into the model for Charlotte County, the evidence adduced in this case does not support the conclusion that stormwaters in Charlotte County will reach an elevation of less than 11 to 12 feet, in the event of a 100-year return storm. The evidence overwhelmingly establishes that waves would reach at least that height. Respondent's Exhibit No. 2 shows what a storm surge of 11 to 12 feet did to a beach not dissimilar too Charlotte County's when Hurricane Frederic hit Gulf Shores, Alabama. Radical changes in topography occurred well landward of the point at which the proposed line for Charlotte County has been placed. This exhibit also shows why Mr. Tackney's opinion to the effect that a modest reduction in storm surge would permit sand dunes of a certain height to block the water's progress landward must be rejected. When a hurricane hits, the dunes are so dramatically eroded that their former height is not determinative. Although DNR ignored this factor in calculating the horizontal penetration of a three foot wave, in order to make the proposed line conservative, erosion of the profiles is inevitable. The Kriebel erosion model is designed to show what amount of sand stormwater will move offshore when a dune takes the full force of stormwater. When dunes are not high enough to do that, some other criterion for a coastal construction control line is necessary to reflect the different types of erosion that hurricane Frederic and other storms have shown will occur. Overwashed sand deposits stretched 800 feet and more from the water's edge after Frederic abated. The parties proposed findings of fact have been considered and have been adopted, in substance, except where unsupported by the weight of the evidence, immaterial, cumulative, or subordinate.
