The Issue Whether a permit should be issued to Petitioner Theodore B. Meadow to construct a dwelling on the Gulf Coast of Florida as requested in his application filed with Respondent Department of Natural Resources.
Findings Of Fact Having considered the evidence and argument of counsel, the Hearing Officer finds: In July of 1979 Petitioner filed an application for a permit to build a duplex dwelling seaward of the coastal construction setback line on a parcel of land bounded by the theoretical extension seaward of the north/south boundary line of Ponce de Leon Street in Yon's Addition to Beacon Hill on St. Joe Beach, Florida. The parcel of land is 70 feet in width and approximately 175 feet in depth to the high-water line of the Gulf of Mexico and lies between State Road 30 (US Highway 98) and the Gulf of Mexico at St. Joe Beach in Gulf County, Florida. The application, Department of Natural Resources File #79-P-283, was filed pursuant to Rule 16B-25.05, Procedure to obtain variance; application, Florida Administrative Code, which had been promulgated under the authority of Sections 161.052, 161.053 and 370.021(1), Florida Statutes. Attached to the application was a copy of a deed to subject property to Albert H. Hinman dated December 12, 1977; an undated authorization from the owner of the property to Petitioner Meadow to apply for a variance and if granted to construct a building on the property; a survey of the property; a floor plan of the building with a typical wall section; and a topographical plat of the lot involved. In response to Rule 16B--25.05(1)(d): "Statements describing the proposed work or activity and specific reasons why the applicant feels the variance should be granted." Petitioner stated, in part, "...the reason that the permit should be granted is because applicant does not have sufficient space on property he is purchasing from A. H. Hinman to construct said building outside of the DNR Coastal Construction Control Line." The survey shows that 14 to 15 feet of the property lies landward of the Department of Natural Resources' setback line. At the time of the hearing no purchase had been made, but there is no dispute regarding the authorization of the owner to allow Petitioner to build if a variance is granted. After filing the application Petitioner consulted with the staff of the Department concerning the construction seaward of the setback line. The Chief Engineer of the permitting section of the Bureau of Beaches and Shores, who is responsible for accepting, evaluating and making recommendations for permits for construction, inspected the site of the proposed structure on October 11, 1979. He took a copy of the plans and specifications for the structure, a plot plan, and the engineering statement which accompanied the plans to review on the site. After the inspection he made a determination that the structure was appropriately designed for the hazard environment and located in such a position as to offer the least potential adverse impact to the beach in the area. Recent topographic changes, topographic data including that submitted by Petitioner, and other historical information was used to assess and evaluate the project. Thereafter, the engineer consulted with the Executive Director of the Respondent Department and gave a favorable recommendation in terms of minimal impact. The Executive Director determined that the structure was designed and located to have the minimum adverse impact on the beach, and that the structure was adequately designed to resist natural forces associated with a hundred-year storm surge (Transcript, pages 52-56). At the formal hearing the Executive Director stated that he based his recommendation for approval by the Executive Board on the precedence of previous action of the Executive Board and because he found that the Petitioner had his application in order. Petitioner Meadow has followed the guidelines of the administrative rules and submitted all required information. He has provided his reason for requesting a variance and believes the information furnished compels the Respondent Department to grant the waiver inasmuch as no modification was requested and he cannot build the structure he desires on the 14 to 15 feet of land he is authorized to use which lies landward of the 1975 setback line. The immediate area involved in this proceeding is relatively undeveloped beach property approximately one (1) mile in length at St. Joe Beach, Gulf County, Florida some twenty-nine (29) miles to Panama City and six (6) miles to Port St. Joe. The real property has been divided into fourteen (14) lots more or less similar to the lot on which Petitioner seeks to construct a duplex (Petitioner's Exhibit 2; Transcript, page 137). No structures except one multifamily dwelling have been constructed on any of the fourteen (14) lots. Most the construction along the nearby coastline was completed prior to March 21, 1975, the date the Respondent Department established a coastal setback line under the then applicable statutes and rules. Beacon Hill is a subdivision about a mile and a half from the subject area on the coastal western edge of Gulf County. The structures are close together, the majority of which were constructed prior to 1975 without a permit from the Respondent Department. Historically, the area would have had a similar topography and beach conditions to the subject area, but because of structures built on the beach vicinity the primary dune system has been eradicated, the beach is narrow in that vicinity, and there is virtually no vegetation (Transcript, pages 135-136). It has been found that any construction, particularly of a building, generally has an adverse impact on a beach dune system (Transcript, pages 149, 161). The "setback line" defined in the 1975 statutes and rules was established March 21, 1975 (Transcript, page 169). Thereafter, in 1978 the legislature amended Section 161.053, Florida Statutes, and ordered the Respondent Department to establish a "coastal construction control line" to replace the setback line, but said line has not yet been established, although at the hearing a member of Respondent's engineering staff stated that a study was in progress. Neither Petitioner Meadow nor Mr. Hinman, the owner of subject property, requested the Respondent Department to review the setback line or establish a coastal construction control line prior to filing of the application in 1979 for a variance of the 1975 setback line (transcript, page 93). "Setback line" and "coastal construction control line" are not synonymous. The setback line set a seaward line for construction, and the coastal construction control line defines the impact of a 100-year storm surge or other predictable weather condition (Transcript, page 179). An engineer on the Respondent Department's staff who qualified as an expert was of the opinion that the coastal construction control line, when established, would be landward of the setback line established in 1975 (Transcript, page 198). There have been two (2) hurricanes which have impacted the Gulf Coast since the setback line was established, one in September of 1975 and one in September of 1979. These storms had relatively little visual impact on the subject beach area except for erosion of the fore dune, but the storms substantially impacted the accretion of the coastline (Transcript, pages 189- 195). At the final hearing Ms. Sally Malone, a resident living one block from the proposed structure of Petitioner Meadow, protested the proposed construction on the beach and in general the removal of trees. The evidence shows she has a legitimate concern for the effect through erosion the construction might have on the beach near her home. Petitioner Meadow and the Respondent Department submitted proposed findings of fact and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is recommended by the Hearing Officer that the application of Theodore B. Meadow for a waiver or variance be denied without prejudice to his refiling an application after the coastal construction control line is established as required by Section 161.053, Florida Statutes, supra. DONE and ORDERED this 5th day of November, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 5th day of November, 1980. COPIES FURNISHED: Mark J. Proctor, Esquire Office of the General Counsel Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303 Cecil G. Costin, Jr., Esquire 413 Williams Street Post Office Drawer 98 Port St. Joe, Florida 32456
The Issue Whether or not the proposed amendments to Respondent's Rules 18-21.003 and 18-21.004, Florida Administrative Code, comply with Section 120.54, Florida Statutes, or is otherwise an invalid exercise of delegated legislative authority. Specifically, the following issues are raised by the pleadings and presentation of the parties: a) Whether the proposed rule amendments exceed the Respondent's grant of authority by placing a moratorium on the issuance of requests to use sovereign submerged lands adjacent to coastal islands, as more specifically defined by the rule; b) Whether Respondent failed to materially follow rulemaking procedures as prescribed by Section 120.54, Florida Statutes in preparation of the economic impact statement; c) Whether the amendments are arbitrary and capricious because they are unnecessary and are unrelated to the administration and management of sovereign submerged lands; d) Whether the proposed amendments contained terms and definitions which are vague and ambiguous, because the terms as defined are not ascertainable; e) Whether the proposed amendments effectuate a "taking" of Petitioner's property; and f) Whether the claims of Petitioner's Andrews, Depot Key and Lost Tree that the Board of Trustees are estopped from promulgating the proposed amendments are without merit. Additionally, Respondent raised the issue of whether the Petitioners had standing to bring the subject rule challenge.
Findings Of Fact The Board of Trustees of the Internal Improvement Trust Fund (Trustees) holds state land in trust for the use and benefit of the people of the State of Florida, pursuant to Section 7, Article II, and Section 11, Article X of the State Constitution. The Division of State Lands within the Department of Natural Resources (DNR) performs all staff duties and functions related to acquisition, administration and disposition of state lands, title to which is or will be vested in the Trustees pursuant to Section 253.002, Florida Statutes. The Trustees are vested and charged with the acquisition, administration, management, control, supervision, conservation, protection and disposition of all lands owned by, or which may inure to, the State or any of its agencies, departments, boards, or commissions, except for certain exceptions contained in Section 253.03(1), Florida Statutes. Among lands vested in the Trustees are all tidal lands and all lands covered by shallow waters of the ocean or gulf or bays or lagoons thereof, and all lands owned by the state covered by freshwater (i.e., sovereign submerged lands). The Trustees are authorized to administer all state-owned lands and are responsible for creating an overall and comprehensive plan of development concerning acquisition, management, and disposition of state-owned lands so as to insure maximum benefit and use. To accomplish this mandate, the Trustees are empowered to adopt all necessary rules and regulations pursuant to Section 253.03(7)(a), Florida Statutes. Currently, the administration and management of sovereign submerged lands is governed by the provisions of Chapters 18-18, 18-20 and 18-21, Florida Administrative Code. Pursuant to rules contained therein, the Trustees may approve the following types of uses of sovereign submerged lands: a) Consents of use, b) Easements, c) Management Agreements, d) Use Agreements and e) Leases. On June 27, 1989, the Trustees were asked to consider approving the issuance of a 5-year sovereign submerged land lease for the construction of a 42-slip private residential docking facility located adjacent to Atsena Otie Key, an island located off the coast of Cedar Key, which would serve a proposed upland development. Approval of that lease would, if granted, preempt over 14,500 sq. ft. of sovereign submerged lands. Under pertinent rules in place when the Trustees considered the Atsena Otie Key request, Trustees' staff recommended that they approve the requested use. However, based on written public opposition to the approval of that request, the Trustees, during the subject Cabinet meeting, heard from eight persons appeared who urged denial of the requested use maintaining that the proposed project was not in the public interest. Based on public opposition and the concerns raised, the Trustees rejected staff's recommendation and unanimously deferred action on the Atsena Otie lease request. Additionally, the Trustees directed the Division of State Lands to compile a report of what types of federal and state protection of coastal islands currently existed. The Trustees thereafter commissioned its to pull together their authority and promulgate a rule enunciating common standards for application on barrier islands. Treasurer Gallagher moved to have the DNR develop rules for the trustees to follow when making decisions regarding development on coastal islands which was to be presented to the Trustees at the August 22, 1989 Cabinet meeting. Based on the Trustees desire to develop a more clearly enunciated policy of what the state would allow its lands adjacent to coastal islands to be used for in the future and to put the public on notice as to what they could expect the Trustees to permit in terms of the use of sovereign submerged lands adjacent to coastal islands and to also provide its staff with guidance as to how they would analyze requests prior to submitting them for consideration, the proposed rule here under challenge was promulgated to put in place a statewide policy regarding development of undeveloped coastal islands. In addition, the Trustees were concerned about issues being raised as to the use of sovereign submerged lands to facilitate coastal island development which was not being adequately addressed by the local governments comprehensive planning processes. The next developmental stage of the coastal island policy was agendaed at the August 22, 1989 Cabinet meeting. At that meeting, staff presented a report entitled, "Analysis Of Existing Policy And Programs Affecting Florida's Coastal Resources." That report summarized and analyzed the existing federal and state programs affecting Florida's coastal islands. It is noted that there existed no single state or federal program with sufficient standards and authority to adequately protect and manage the entire beaches, dunes, back barriers and wetland systems of Florida's coastal islands. Likewise, there was no easy accessible resource data base or model criteria to assist local and state agencies in the planning, management and regulation of coastal island development and protection. The findings in that report triggered the Trustees to approve a temporary moratorium on authorizations for the use of sovereign submerged lands that would facilitate development of currently unbridged, undeveloped coastal islands until such time as the Trustees could adopt a policy for considering such requests. At that meeting, the Trustees invited public comment before taking action on staff's recommendations. Following public discussions, the Trustees unanimously accepted the staff's report and a temporary moratorium was placed on authorizations for use of sovereign submerged lands that would facilitate development of currently unbridged, undeveloped coastal islands until DNR's Division of State Lands could propose a comprehensive policy for such requests. Following approval of the staff's report and recommendations, the Trustees reconsidered the Atsena Otie Key request for authorization to construct the 42-slip docking facility and the Trustees approved the lease request but made the approval subject to several amendments including a reduction in size from a 42-slip to a 25-slip private residential docking facility. The Trustees next addressed the developing coastal island policy at the December 19, 1989 Cabinet meeting. At that meeting, the Trustees deferred voting on staff's recommendation that they adopt an interim policy governing the use of sovereign submerged lands adjacent to unbridged coastal islands until the February 1990 Cabinet meeting. At the February 6, 1990 Cabinet meeting, following a lengthy public discussion, the Trustees again deferred action on adoption of the interim policy until they more fully reviewed the issues surrounding the emerging policy at a Cabinet workshop. During that meeting, the Trustees were advised by opponents to their policy about the potential environmental impacts that would arise if the policies were implemented and developers were forced to seek alternative means of providing sewer, water and electricity to their developments. After listing to those concerns, the Trustees considered the opponents position but retained their position of restricting the use of sovereign lands. At the conclusion of the discussion, the Trustees voted unanimously to defer action for 90 days until a Cabinet level workshop could be held to delineate the issues regarding the use of sovereign lands to facilitate upland development and to define the extent of the Trustees' jurisdiction and authorization to proceed. During the March 12, 1990 Cabinet workshop, the Trustees received input on their emerging coastal island policy from the Department of Environmental Regulation (DER), the Department of Community Affairs (DCA) and both the Governor's coastal resources Interagency Management Committee (IMC) and the Citizen's Advisory Committee (CAC). 1/ As a result of the workshop at the May 8, 1990 Cabinet meeting, the Trustees directed the staff to develop recommendations for continuing the moratorium and to develop a plan for identifying specific islands that would be protected under the policy. Staff was also directed to work with the DCA to secure funding to complete the inventory and compile data on natural resource values, as a potential land use/development status and development potential on all unbridged coastal islands. At the May 8, 1990 meeting, several of Petitioners voiced opposition to the moratorium but spoke in support of the agency proceeding with rulemaking. Following comments from the public, the Trustees voted to approve and extend the moratorium imposed on August 22, 1989, and for staff to begin rulemaking immediately to begin development of an interim policy until a comprehensive policy and rules governing coastal islands could be adopted by the Board of Trustees. Staff was also directed to work with relevant agencies including the DCA, the coastal resources IMC, and the CAC to develop a definition of coastal islands and undeveloped coastal islands and to give reasonable consideration to development of a comprehensive plan which would be compatible with the Coastal Barrier Resources Act (CBRA). Also, during that meeting, staff was directed to work with the DCA, the IMC and the CAC to develop definitions of "coastal island" and "undeveloped coastal island". The Trustees reiterated the directions to staff to give reasonable consideration to the comprehensive plans of coastal communities and that the policy be compatible with CBRA. The first draft was to be presented to the Trustees in June and a final form of the proposed rule was to be presented at the Trustee's second meeting in September. The Trustees directed staff to include, at a minimum, all unbridged, undeveloped coastal islands units contained within CBRA and all unbridged undeveloped coastal islands within aquatic preserves. The rule was to also address islands which were heavily developed at one end and totally undeveloped at the other. Finally, the staff was to consider the local government's comprehensive plans for coastal communities. At the June 12, 1990 Cabinet meeting, the Trustees were asked to adopt the draft rule prepared. The Trustees after considering the draft, authorized staff to proceed with rulemaking by publishing the rule in the Florida Administrative Weekly and conducting at least three public meetings. On August 31, 1990, DNR received petitions challenging the proposed rules and the moratorium. The petitions raised several issues regarding the proposed rule which had been voiced at the public hearings. In response to those issues, DNR staff sought authority to make amendments to the proposed rule. A report outlining the status of the rule and the revisions were presented to the Trustees at the October 9, 1990 Cabinet meeting. At that meeting, the Trustees accepted the status report including the revision to the amendment to Rules 18-21.003 and 18-21.004, Florida Administrative Code, and authorization to proceed was given to revise the proposed rule. At the October 23, 1990 Cabinet meeting, staff presented the revised proposed rule to the Trustees and requested authorization to formally withdraw the originally proposed rule and to give notice of revision on the instant rule for adoption. An outline explaining the revisions were included within the report. At that meeting, the Trustees approved staff's recommendation to withdraw the original rule and allow the CAC and the IMC to be afforded an opportunity to review the revised rule. On November 11, 1990, the IMC held a public meeting on the revised rule at which time the Trustees received comments, both pro and con, to the revised rule. As a result of those comments, modifications were suggested to the revised rule. At the December 18, 1990 Cabinet meeting, the Trustees authorized staff to withdraw the original proposed amendments and to provide notice of the withdrawal in the Florida Administrative Weekly. As a result of the Trustees consideration of the modification to the rule recommended by the IMC, the following amendment was made to Section 18-21.004(1)(h)(1), Florida Administrative Code: The application is for the purpose of obtaining authorization for a use which was included in a development project which has undergone development of regional impact review and a final development order has been issued pursuant to Chapter 380, Florida Statutes as of the effective date of this rule, and is otherwise permitted by and consistent with the provisions of Rule Chapters 18-18, 18-20, and 18-21, Florida Administrative Code provided, however, that in the case of a substantial deviation to said development order, no authorization of use may be granted for any use that was not included in the original order. Additionally, staff amended the definition of "coastal island segment" to be consistent with CBRA and to provide that if an island segment had an overall density of less than one structure per 5 acres of fastland as of the effective date of the rule, that it be included within the operation of the revised rule. Prior to approval, opponents of the proposed rule engaged the Trustees in a discussion about whether the local government's comprehensive plan process adequately addressed the Trustees' concerns about the protection of natural resources. Following consideration of that discussion, the Trustees made no modification to their policy. The Trustees thereafter voted to continue the moratorium until adoption of the proposed coastal island rule. On August 2, 1991, the Trustees published notice in the Florida Administrative Weekly, Volume 17, No. 31, of their intention to adopt the proposed rule amendments to Rules 18-21.003 and 18-21.004, Florida Administrative Code. As specific authority, Sections 253.03(7) and 258.43(1), Florida Statutes was referenced. On August 31, 1991, Petitioners herein filed challenges, with the Division of Administrative Hearings, to the proposed rule amendments. On September 12, 1991, staff presented the Trustees with a status report regarding the proposed rule in view of the pending challenges. At that meeting, the Trustees reaffirmed their desire to protect undeveloped coastal islands and their adjacent natural resources and directed staff to defend the proposed rule against challenges. In support of this position, the Trustees reaffirmed their desire to curtail development of undeveloped barrier islands as development of such islands poses threats to the natural resources and coastal marine environment and their stated desire to protect those resources. In Section 18-21.003, Florida Administrative Code entitled, "Definitions", was amended by the Trustees' adoption of its coastal island policy to include four new definitions: "Coastal Island", "Fastland", "Undeveloped Coastal Island" and "Undeveloped Coastal Island Segment." The DNR's Office of Marine and Program Planning primarily developed the definitions included in the rule. George Schmahl, an employee at DNR for approximately two years who was accepted herein as an expert in the fields of biology, coastal ecology and coastal resource management, was assigned the task of coordinating the drafting of the definitions. Mr. Schmahl received his guidance for the development of the necessary definitions from the Trustees at the May 8, 1990 staff meeting. The initial draft of the definitional section of the rule contained only the terms "coastal island" and "undeveloped coastal island." Thereafter, the draft was expanded to include definitions for the terms "fastland" and "undeveloped coastal island segment." The definitions were presented to the Trustees for consideration at the June 12, 1991 Cabinet meeting, at which time the Trustees approved staff's draft and directed them to proceed with the rulemaking process. The rule defines "coastal island" as: coastline geological feature lying above mean high water that is completely separated from the coastal mainland by marine or estuarine waters, including those parcels of land which become insular due to natural causes, and is composed of any substraint material, including spoil material. This specifically includes, in addition to exposed coastal island; All islands within aquatic preserves except for Lake Jackson, Rainbow River, Lake Weir and Wekiva River aquatic preserves; and Other islands within confined or semi-confined marine or estuarine waters with an open connection to the Atlantic Ocean or Gulf of Mexico such as bays, lagoons, or inlets. Except for coastal islands within the specified aquatic preserves, it does not include islands or portions of islands within rivers leading into marine and estuarine waters more than one mile upstream of a line drawn at the river mouth from headland to headland. The nucleus for the definition of "coastal island" was derived from the existing definition of "coastal barrier island" found at Section 161.54, Florida Statutes. Schmahl modified the definition in Chapter 161 to take into consideration the phrase as defined by CBRA, and be further modified it to encompass virtually all islands within Florida's coastline. Spoil islands were included in the definition of "coastal island" because the definition of "coastal barrier island" in Chapter 161 specifically includes islands created from spoil disposal. Schmahl opined that "an island so far as the impacts to state lands and the benefits of islands in terms of protection to landward aquatic habitats and mainland ... it didn't matter what the composition of the island ... the issues were the same." Schmahl excluded islands more than one mile upstream from the mouth of a river because the rule was not intended to include, within its operations, islands that occur in river and lake systems within the interior portion of the state. Thus, by excluding islands more than one mile upstream from the mouth of the river, the rule would primarily capture those islands located in close proximity to Florida's coastline. Schmahl explained the choice of one mile upstream as the point at which to connect a line drawn at the river mouth from headland to headland after rejecting other forms of measurements, such as the water salinity or the extent of the tidal influence in the river system, because such methods were difficult to implement and the choice provided a standardized form of measurement which could be objectively applied. A section within the definition of "coastal island" was added to insure that the rule encompassed all islands within aquatic preserves except those islands within freshwater preserves. The freshwater aquatic preserves listed in the rule were identified as islands within freshwater preserves by reviewing aerial maps and excluding any islands located entirely within freshwater aquatic preserve systems. The rule defines the term "fastland" as: That portion of a coastal island above the upper limit of tidal wetland vegetation or if such vegetation is not present, that portion of the island above the mean high water line. Fastland is a common term which is defined in Webster's Third International Unabridged Dictionary as "high and dry land or land above the range of the tides." The term was included within the federal legislation implementing CBRA and was therefore, included within the rule to comply with the Trustees' direction that the definitions be compatible with CBRA's legislation. The term "fastland" was defined to determine whether a particular unabridged island met the definitions for "undeveloped coastal island" and "undeveloped coastal island segment." The rule defines "undeveloped coastal island" as: coastal island not directly or indirectly connected to the mainland by a bridge suitable for automobile traffic, and which has an overall density of less than one structure per five acres of fastland as of December 18, 1990. For the purpose of this definition, a structure means a wall and roofed habitable structure that is principally above ground and affixed to a permanent foundation with a projected ground area exceeding 200 square feet and constructed in conformance with all applicable legal requirements. For the purpose of determining density, facilities such as docks, groins, utility poles and pipelines are not counted as structures. The term "undeveloped coastal island" was primarily derived from definitions used by the Department of Interior Legislation implementing CBRA and is in keeping with the Trustees' instruction that the rule definitions be compatible with CBRA. Likewise, the density threshold of one man-made structure per five acres was taken directly from CBRA's implementing legislation. The term "undeveloped coastal island segment" is defined as: [A]n unbridged coastal island with an overall density of greater than or equal to one structure per five acres of fastland, a segment or portion of the island which either is at least one-quarter mile in linear shoreline length or comprises a minimum of 25% of the total fastland of the island and which consist of less than one structure per five acres of fastland as of December 18, 1990. A segment boundary shall be contiguous with a line drawn from the shore at the point of the outermost structure within a developed area to intersect each shoreline, then continue laterally along the sinuosity of each shoreline until another developed area is encountered or the end of the island is reached. See "undeveloped coastal island" for the definition of a structure. This phrase was included as a result of specific input from the IMC who convinced the Trustees of the importance of protecting large undeveloped areas of island when one or more portions of the islands were developed. In keeping with instructions received from the Trustees and relying on his professional experience, Schmahl also relied on a review of the following documents in developing the rules definitional sections: Coastal Barrier Resources Act, Public Law 97-348, 16 USC, Section 3500; and the Executive Summary of the Report of Congress on the Coastal Barrier Resources System. Section 18-21.004, Florida Administrative Code, entitled "Management Policies, Standards and Criteria," was amended by the Trustees' adoption of the coastal island policy to include four exceptions to the application of the rule. The Division of State Lands drafted language for this section under the direction of the Division's Director who viewed the rule's purpose as a means to modify the moratorium which had been opposed as the Trustees developed and refined the coastal island policy. The rule was to serve as an interim device until a multi-agency comprehensive policy could be developed to address development of and protection of coastal islands and their adjacent resources. The Trustees policy is reflected in language of Section 18-21.004(h), Florida Administrative Code, which provides: No application to use sovereignty, submerged land adjacent to or surrounding an unbridged, undeveloped coastal island or undeveloped island segment may be approved by the Board of Trustees unless it meets the following criteria... . The remaining section codify exceptions to the moratorium which had been defined over the approximate 18-month development stage that the policy underwent. Exception (1), contained in 18-21.004, states: The application is for the purpose of obtaining authorization for a use which was included in a development project that has undergone development of regional impact review and a final development order has been issued pursuant to Chapter 380, Florida Statutes, as of the effective date of this rule and is otherwise permitted by and consistent with the provisions of Rule Chapters 18-18, 18-20 or 18-21, Florida Administrative Code, as applicable, provided, however, that in the case of a substantial deviation to said development order, no authorization of use may be granted for any use that was not included in the original order. The rationale for the exception was premised on the fact that if a project had undergone DRI review, both regional and state agencies had had an opportunity to participate in review of the development. Therefore, such proposed projects had undergone a higher level of review as to the propriety and continuity with development plans than would have otherwise occurred had the review been conducted only at the local level. Thus, the exception was a way of lending credence to this state's policy of encouraging developers to use the DRI review process. The second exception to the Trustees coastal island policy states: The proposed facility is limited to a 2-slip private residential dock that complies with the standards set forth in Section 18-20.004(5)(b), Florida Administrative Code and the upland parcel to which the facility will be attached was not created by platting or subdividing after December 18, 1990. However, as an alternative to multiple private residential docks, the Board may authorize a private docking facility of more than 2-slips if it determines that such a facility would result in greater environmental protection for sovereignty submerged land resources than multiple individual docks, and provided the facility complies with all of the applicable standards. The number of slips associated with such a facility shall not exceed the number of slips which would have been authorized as individual docks. This exception recognized that under certain circumstances a person could construct a dock on their property. However, the intent was to provide notice that as to those purchasers of waterfront property on a coastal island within the definition of the rule after the December 18, 1990, date would be on notice that they would not be permitted to construct a single-family dock and will therefore have no reasonable expectation to receive one. The Trustees recognized that riparian owners have a right to access their property but that such does not extend to a statutory right to construct a dock. The third exception which addresses the provision of utility services provides: With respect to applications to use sovereignty submerged lands for the provision of public utility services, such services were in place as of December 18, 1990, and the requested usage of sovereignty, submerged land will not result in a upgrade of capacity or will not serve additional customers on a unbridged, undeveloped coastal island or undeveloped coastal island segment. Applications may be approved under this provision only to allow the maintenance or repair of existing utility lines, or as necessary to maintain public safety as ordered by the Public Service Commission. The purpose of that exception was to provide notice to the utility companies that if utility service already existed on an island, and it became necessary for the company to work on lines either to repair or maintain existing service, the rule would not prohibit such activity. The purpose was one of protecting some sovereign submerged resources and not facilitate development by use of sovereign lands, and that utility companies would be prohibited from using sovereign lands to serve additional customers or to upgrade existing service. The final exception to the Trustees' policy states: The proposed use is for the purpose of allowing access, for public purposes, to publicly owned uplands or submerged lands for recreation, research, conservation, mosquito control or restoration activities only, at the discretion of the Board, and is otherwise consistent with the provisions of Rule Chapters 18-18, 18-20, or 18-21, Florida Administrative Code. This exception was developed to allay concerns that the state had acquired a number of coastal islands pursuant to its "Save Our Coast Program" for public recreation which would be subject to the moratorium and therefore not used and the exceptions made clear that the use of coastal islands for public purposes and for the general public's enjoyment, remained in tact. Development of the Economic Impact Statement Pursuant to Section 120.54(2)(b), Florida Statutes, each agency shall provide information on its proposed action by preparing a detailed Economic Impact Statement (EIS) which shall include an estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork; an estimate of the cost or the economic benefit to all persons directly affected by the proposed action; an estimate of the impact of the proposed action on competition and the open market for employment, if applicable; a detailed statement of the data and method used in making each of the above estimates; and an analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985. DNR prepared an EIS which was included with the proposed rule amendments that contained estimates of the cost to the agency of the implementation of the proposed action including the estimated amount of paperwork; of the cost of the economic benefit to all persons directly affected by the proposed action; of the impact of the proposed action on competition in the open market for employment; of the data and method used in making each of the above estimates; and contained an analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985. The EIS was prepared for DNR by Ed Wood, a senior management analyst, with the Division of State Lands. He is coordinator for rule development at the Division and is responsible for the budget and personnel functions for the Division. He holds a master's degree in education and administration with a specialty in school finance and a bachelor's degree in business administration. He has prepared similar EIS's and received a primer from staff on the agency's rationale for proposing the subject rule. Wood read the draft EIS prepared by Dr. Bell, an economist for the Department, who was hired to assist in the preparation of the EIS. Wood consulted with DNR staff regarding information received at public hearings from citizens possibly affected by the proposed rule in order to assess public opinion about the rule prior to undertaking the paths of development of the EIS. Wood relied heavily on the Department of State's document entitled, "Guide to Rules Promulgation Under The Florida Administrative Procedures Act" dated November 1986, which included examples of EISs. Based on his familiarity with the Division's budget and personnel functions, he is infinitely familiar with cost and both paperwork and manpower necessary to implement the proposed action which would be affected by the proposed rules. At the time Wood consulted with Department staff, there were only six applications pending out of an estimated 867 coastal islands. Based on an inadequate sample of potentially affected parties, Wood did not rely on them as a basis for determination of economic impact, as such would have been speculative. Those portions of Dr. Bell's EIS which were relevant were adopted and utilized heavily by Wood in preparation of the EIS. Likewise, irrelevant portions including analysis of benefits from storm protection, hazard avoidance and shoreline protection, none of which are under the Division's jurisdiction were excluded. The Division fully considered all impacts that were capable of being considered based on the information which was furnished and which was reliable. Estimates of the impact on the action of competition and the over-market for employment were taken verbatim from Dr. Bell's draft EIS. The criteria utilized and adopted from Dr. Bell's draft EIS were sufficiently documented to be utilized and therefore was in fact utilized by Wood in the subject EIS. The information relied upon by Wood in preparation of the EIS was included in the statement of data and methods used. At the time of Wood's preparation of the EIS, there were no pending applications for marinas on affected islands and therefore any impact in that area was deleted as being mere speculation. Finally, as to those estimates of the various impacts which were indeterminate, they were stated as such and Wood failed to speculate as to such costs. Facts Relevant to Petitioner's Depot Key Joint Venture Partnership and George Rex Andrews After being deferred by the Board at its June 27, 1989 meeting, the Andrews lease application for the multi-slip docking facility was Item 22 on the Board's agenda for the August 22, 1989 meeting. Item 21 on the agenda was for recommendation for approval of a moratorium on authorizations for use of sovereignty, submerged land that would facilitate development of unbridged, undeveloped coastal islands. Based on the staff's recommendation in favor of the moratorium, the Andrews lease application was recommended for withdrawal. The Board first approved the lease after amending it to allow 25 slips and approved the moratorium. In April 1991, George Rex Andrews and Verna Andrews Woodlief transferred title to Atsena Otie to the Depot Key Joint Venture to obtain financial resources to develop Atsena Otie in accordance with the approved development plan. The development plans for Atsena Otie include an electrical transmission line to be laid between the town of Cedar Key and Atsena Otie. An easement for the utility transmission line will be required from the Board of Trustees. The proposed rule amendments will prohibit the Trustees from granting the easement necessary for the utility transmission line. Petitioners Andrews and Depot Key Joint Venture argue that the marketability of the lots at Atsena Otie will be greatly reduced if they are unable to obtain the easement required for the utility transmission line. Facts Relevant to Petitioner Lost Tree Village Corporation Lost Tree owns undeveloped islands within the Indian River in Indian River County, Florida, which are unbridged, not served by public or private utilities and which were not platted or subdivided prior to December 18, 1990. Lost Tree has preliminary development plans for a residential development and a golf course on seven of its islands. Other islands which have large areas of wetlands will not be developed but would be part of an overall environmental enhancement and preservation plan. Lost Tree's proposed plan of development will require approval for the use of sovereign, submerged lands. The proposed rule would prohibit a bridge to the island across sovereign submerged lands, the extension of utilities, and docks on the islands. Facts Relevant to Petitioners Munz, Watrous and Broderick Thomas Munz - Burgess Island Thomas Munz is the majority owner of a corporation, Burgess Island Associates, which owns an island known as Burgess of Little Bokeelia Island in Pine Island Sound, Lee County, Florida; the minority interest owners are Munz' wife and children. The island is over 100 acres in size of which about 26 acres is uplands. The applicable local zoning will limit development of the island to 27 units. Munz' development plans for the islands offer a total of 27 homes on the island including any of the four existing structures which continue to be used as residents; some of which may be converted to an office and a museum. The existing residences are served by septic tanks and obtain potable water through a combination of wells and cisterns. The island was not platted or subdivided as of December 18, 1990. Variances have been sought from some local zoning regulations relating to road widths and other development standards, which request was in process as of October 18, 1991. There are currently four docks serving the island. As no bridge will be constructed, plans are to provide a dock for each lot for access, although physical restrictions may require some lots to share a common dock. Authorization for such docks will be needed from the Trustees. Sewage treatment is to be by septic tanks. Potable water would be provided through wells and a Reverse Osmosis (RO) system--either individual RO plants or a central system. Permits necessary for water withdrawal, treatment and distribution systems had been applied for as of October 1991, including a consumptive use permit from the South Florida Water Management District (SFWMD); and an industrial discharge permit from DER; and a water plant and distribution system permit from HRS. A surface water management permit from SFWMD was also being sought. Sufficient electrical facilities are in place to meet the needs of the proposed development. Electricity in the form of an overhead utility line from Pine Island which is submerged for a portion of its route to go underneath a channel. Petitioners urge that the marketability and value of the lots on Little Bokeelia Island would decrease without the availability of individual docks for prospective lot owners. Petitioners urge that a distant, central dock is impractical. Ted Watrous - Buck Key Ted Watrous is the majority owner of a parcel of property, approximately 100 acres in size, on an unbridged island known as Buck Key and Pine Island South. The island is approximately 325 acres in size, the remainder of which is owned by the federal government and the Sanibel-Captiva Conservation Foundation. The island is not connected by bridge to any other land mask, nor is the island platted, subdivided, or currently served by any utilities. Watrous plans to develop 28 to 30 single-family homes on a portion of Buck Key; current local land use regulations would allow up to 35 or 36 single-family residences. Primary plans are for 20 of those lots to be waterfront with individual docks. Buck Key is separated from Captiva Island by a channel approximately 500 ft. wide and which gradually slopes to a depth of approximately 8 ft. Access to Buck Key would be by boat from Captiva Island, which is bridged to the mainland through Sanibel Island. Watrous' plans for the Buck Key development include electric utility lines and telephone cable from Captiva Island. The alternative energy source available is diesel generators. Sewage treatment would be handled on-site via septic tanks. The proposed rule would allow Watrous a single two-slip dock for his parcel which he contends would be impractical and would lower his selling price for the lots due to the limited access which would be occasioned by the two-slip dock for the development. Roger Broderick - Chino Island Roger Broderick is the owner of Chino Island, a 55 acre island located in Pine Island Sound. The island is unbridged or proposed to be bridged to another island and is not currently served by utilities. Broderick plans to develop up to 15 single-family residences on the southernmost 15 acres of the island in two phases, the first phase consisting of 10 homes. The northern portion of the island will be maintained in its natural state except that as a condition of a DER permit for the installation of a subaqueous utility line to the island. An existing man-made berm around the perimeter of the northern portion of the island would be removed to improve the flushing in the area and promote reestablishment of mangroves and other native vegetation. Exotic or nuisance vegetation species such as Brazilian pepper and Australian pine would also be removed as a condition of that permit. Broderick desires to live on the island in addition to developing homesites for sale. A majority of the island including wetlands is proposed to be placed under a conservation easement in perpetuity. Of the southern portion of the island where homes are proposed to be located, a man-made canal exist in the interior of the island with direct deep- water access to Pine Island Sound. It is anticipated that individual docks to serve the residential lots will be constructed in the canal on privately owned submerged lands so no Trustee authorization would be needed to construct docking facilities. Broderick has received authorization for many aspects of his development specifically SFWMD has approved a surface water management permit for control of stormwater runoff. Broderick proposes to provide water to residences with a well and a distribution system; SFWMD has issued a withdrawal permit for the water and HRS has issued a permit for the distribution system. Broderick proposes to provide electricity to the island with a submerged utility cable. The cable would be installed by supersaturating the bottoms with water to create a trench then immediately laying the cable in the trench and allowing settlements to settle in over the cable. Both DER and the U.S. Army Corps of Engineers have issued dredge and fill permits for the installation of the subaqueous line. DER investigated the alignment of the submerged utility line and determined that its impacts would be insignificant. A portion of the submerged utility line is co-located in the maintenance channel of an existing easement for an overhead utility line issued by the Trustees to the Lee County Rural Electric Cooperative for an electric utility line running from Pine Island to Sanibel Island. An application has been submitted to the Trustees for the submerged line covering both the co- located portion of the line and the spur necessary to run to Chino from the existing corridor. As of the final hearing, that application was not complete. Broderick urges that he has explored the possibility of alternative means of providing electricity and determined that the cost would be prohibitive and the alternatives would be inconvenient, unreliable, adversely affecting the marketability of the lots. Lee County has issued a final development order for the project, authorizing commencement of construction of the infrastructure and housepads. Lee County has found the development consistent with its comprehensive plan. Sewage treatment will be provided by individual treatment systems that will disinfect the effluent prior to discharge to a drainfield; the septic tank system is not the typical design and was specifically designed to avoid impacting shellfish harvesting areas.
The Issue Petitioners challenged the Department of Environmental Protection's (Department) preliminary Final Order, alleging that Petitioners committed the "unauthorized clearing and destruction of dunes and dune vegetation for the purposes of constructing a roadway seaward of the coastal construction control line [(CCCL)] without benefit of a permit." The ultimate issue is whether the work Petitioners performed was seaward of the CCCL, and if it was, whether there was a violation of Amended Permit FR-563 and Section 161.053(2), Florida Statutes.
Findings Of Fact Parties Petitioner, Ben Withers, Inc., is a Florida corporation doing business in the State of Florida. Petitioner, Ben Withers, is the President and owner of Ben Withers, Inc., and a resident of Panacea, Florida. (Henceforth, Ben Withers and Ben Withers, Inc., are referred to collectively as "Mr. Withers," unless otherwise noted.) Mr. Withers is a licensed general contractor. The Department is the executive agency of the State of Florida operating pursuant to, among others, Chapter 161, Florida Statutes, and Chapter 62, Florida Administrative Code. Pursuant to Chapter 161, Florida Statutes, the Department administers the CCCL program for construction activities seaward of the CCCL. Coastal Construction Control Line Program The Department's Bureau of Beaches and Wetland Resources regulates construction and excavation activities seaward of the CCCL. The Department is responsible for determining and setting the CCCLs. The CCCL is a scientifically established line pursuant to Section 161.053, Florida Statutes. By definition, the CCCL "defines that portion of the beach-dune system subject to severe fluctuations based on a one-hundred-year storm surge, storm waves, or other predictable weather conditions." Rule 62B-33.002(13), Florida Administrative Code. Construction and excavation activity seaward of the CCCL is regulated by Section 161.053, Florida Statutes, and Rule 62B- 33, Florida Administrative Code. Mr. Withers admitted that he is aware of Department rules regarding beaches and coastal construction and is also aware that excavation seaward of the CCCL requires a permit unless it is otherwise exempt, and that he had this knowledge prior to the present case. Accessing the Pepper Project Site Under Amended Permit FR-563 Dog Island is a barrier island south of and about three miles off the coast of Franklin County, Florida. The island is approximately eight miles in length. There is no bridge to the island. The Pepper project site is on the far western end of the island. The Gulf of Mexico borders the island on the south and St. George Sound borders the island to the north. The most common way to access the Pepper site with any vehicle carrying equipment and materials, would be to use a boat or barge to a marina area (Tyson's Harbor) near the center of the island, or a private dock, and then traverse west down the middle of the island or down the beach itself, or a combination of the two. The Easy Street Easement is an easement area for a roadway running east and west through Dog Island. The parties agree that Easy Street and the Easy Street Easement are the same. The Easy Street Easement had been an unpaved roadway years before; part of the roadway was still visible in May 2001, and other parts had been covered with vegetation. There are portions of Easy Street and Easy Way east of the cul-de-sac which are visible roadways. See, e.g., Department Exhibit 13. Additionally, parts of Easy Street are seaward of the Department's CCCL (e.g., in the narrows area which is west of the cul-de-sac) and other parts are landward of the CCCL. See, e.g., Finding of Fact 29. Pursuant to its statutory duty, in 1996, the Department set the reference monuments R-158-R-160 for the CCCL on the west end of Dog Island. These monuments are in the narrows area of the island and run west to east. The CCCL is not visible on the ground. A surveyor is needed to locate the line. The alleged violation in this case was committed between R-158 and R-160, part of the narrows area. The Easy Street Easement on Dog Island runs both north and south from The Nature Conservancy cul-de-sac and then runs westerly to the west end of Dog Island. The CCCL Permits On October 21, 1999, the Department issued Permit FR-563 to Leonard Pepper, the property owner, for the construction of a single–family dwelling and for structures associated with the dwelling on the west end of Dog Island. Permit FR-563 contained Standard Permit Conditions that required in part: (1)(a) all construction or activity for which the permit was granted be carried out in accordance with the plans and specifications which were approved by the Department as a part of the permit; (1)(b) all construction or activity authorized under the permit shall be conducted using extreme care to prevent any adverse impacts to the beach and dune system; and (1)(g) existing beach and dune topography and vegetation shall not be disturbed except as expressly authorized in the permit. Permit FR-563 did not authorize the start of construction until a construction access plan to the Pepper project site was approved, in order to minimize impacts to the beach and dune system. On October 16, 2000, Amended Permit FR-563 was issued with a Notice to Proceed Withheld. The Amended Permit also contained Special Condition 1.5 which required the submittal and approval of "[a] construction access plan showing the route and timing for bringing equipment and materials to the site, in order to minimize impacts to the beach and dune system." The Department was concerned about the manner in which equipment and materials would be brought to the project site without causing further harm to the system. Amended Permit FR-563 did not expressly or implicitly authorize excavation or grading seaward of the CCCL in any area on Dog Island off of the project site and footprint of the house. In late 2000, Mr. Withers became involved with the Pepper project after Amended Permit FR-563 (with the Notice to Proceed Withheld) was issued on October 16, 2000. Part of Mr. Withers' job responsibility was to prepare and submit a construction access plan to the Department for approval. The Department does not normally require an access plan because most job sites are located in areas with established roads for ingress and egress. Here, there was no established road to and from the project site. The access plan was necessary in order to determine how Mr. Withers would transport equipment and materials to the Pepper project site on the west end of Dog Island due to the site's remote location and the absence of an established roadway to the site. Mr. Withers expected that materials and heavy equipment, including cranes, would be off-loaded at Tyson's Harbor, located approximately in the middle of Dog Island, and transported by vehicle to the project site along the access plan route. He expected to only transport pilings using the beach access route. On March 15, 2001, Mr. Withers submitted an access plan which described the route Mr. Withers would traverse by vehicle with construction equipment and materials. See Endnote 1. The Easy Street Easement starts at the east end of the island as an established roadway. Proceeding in a westerly direction, Easy Street comes to a dead-end at a cul-de-sac landward of the CCCL. The access plan authorized Mr. Withers to access the job site using part the Easy Street/Easy Street Easement (starting on the east end of the island) going north from The Nature Conservancy cul-de-sac, then heading in a westerly direction just south of the Ausley house (west of R-158 and just landward of the CCCL) and across the narrows area and continuing in a westerly direction along the northern shoreline and in southerly direction toward R-154. The access plan then authorized Mr. Withers to proceed in a westerly direction over the middle portion of the west-end of the island, then in a southerly direction toward the project site.1 The access plan showed a route both landward and seaward of the CCCL along the narrows area. See Department Exhibit 4- orange line then blue line after the orange circle on the west-end of the island. As described by Mr. McNeal of the Department, the access route is seaward, for the most part, of the CCCL from R-157 to R- 159 (running west to east) and landward of the CCCL east of R-159. The Department described the damaged area of 5,305.6 square feet (Department Exhibit 11A, insert "B") caused by Mr. Withers as east of R-159 and seaward of the CCCL and south of the access plan route. See also Finding of Fact 35. However, it appears that a portion of Easy Street, between R-159 and R-160, is seaward of the CCCL. Compare Department Exhibit 12 with Department Exhibits 4, 11A, and 13. During a pre-hearing deposition, Mr. Withers marked in pink the route he took through a portion of the narrows area which coincides with the portion of Easy Street between the approximate locations of R-159 and R-160, depicted on Department Exhibit 12. See Finding of Fact 43. (Mr. Withers had the Easy Street Easement staked prior to doing any work on Dog Island. See Findings of Fact 33-35.) The damaged area appears to coincide with this portion of Easy Street, and seaward of the CCCL. See Department Exhibit 11A. The access plan authorized Mr. Withers to drive (vehicular traffic) his equipment over the easement following the route depicted on the access plan until he arrived at the project site. See Endnote 1. The Department expected that travel along the access route would cause minimal and temporary damage or destruction to the topography, so the plan was considered acceptable. The access plan did not authorize excavation of a roadway within the route, including the narrows area, nor did it contemplate any other activity over or around a dune other than what might occur as a result of driving.2 The Department understood that Mr. Withers would be driving daily over the access plan route to the project site. The Department assumed that trucks would be used to transport equipment and materials. The Department did not differentiate among vehicles which could be used, including large trucks. On April 11, 2001, the Department issued a Notice to Proceed to Mr. Pepper to begin construction of his single-family dwelling in accordance with Amended Permit FR-563. The access plan is part of the Amended permit. Shortly after the Notice to Proceed was issued, The Nature Conservancy advised the Department of concerns it had with the access plan. As a result, on April 24, 2001, there was a meeting in Apalachicola, Florida, convened by the Department and attended by other interested governmental entities and private persons, including Mr. Withers. The purpose of the meeting was explore other possible ways and means of access by Mr. Withers to the Pepper project site.3 No resolution was reached during the meeting and the access plan previously approved by the Department remained effective. The previously issued Notice to Proceed was also in effect. The Violations Mr. Withers hired Kenneth Greenwood of Garlick Environmental Associates to perform a threatened/endangered species inspection, plant and animal, on an approximately 30-foot wide strip on the Easy Street Easement (approximately 1,800 feet) being utilized in Mr. Withers' access plan and within the narrows area. See Department Exhibit 13-yellow markings. On May 2, 2001, Mr. Greenwood performed the inspection within the easement that Mr. Withers had staked out by a land surveyor, approximately 15 feet on either side of the stakes. He found no threatened/endangered species. (The CCCL was not staked by Mr. Withers because, according to Mr. Withers, the Department did not ask him to locate the CCCL with stakes.) The access route depicted by Mr. McNeal in orange on Department Exhibit 4, which runs east of R-159, is similar to the description of the staked areas east of R-159, described by Mr. Greenwood and marked in yellow on Department Exhibit 13. See Findings of Fact 28-29. Both areas are landward of the CCCL. However, the 5,305.6 square foot damaged area is east of R-159 and is seaward of the CCCL. Mr. Greenwood described the area where he performed his investigation as being "relatively undisturbed," "relatively stable," having no vehicle tracks, and he stated that there were areas of bare sand as well as areas of "natural beach dune vegetation." He described the area as "relatively flat with some small amounts of mounding." The pictures taken by Mr. Greenwood within the staked easement on May 2, 2001, as part of his investigation, do not depict any vehicle tracks. After Mr. Greenwood completed his investigation on May 2, 2001, he observed Mr. Withers landward of the CCCL on a front-end loader and north of the cul-de-sac, proceeding west along the Easy Street Easement scraping off the top layer of soil and heading in a westward direction. Mr. Greenwood believed that the activity performed by Mr. Withers at this time was consistent with unpaved, road construction. According to Mr. Greenwood, the width of the scraped area appeared to be approximately the width of the bucket on Mr. Withers' front-end loader. Mr. Withers stated that he was doing minor grading landward of the CCCL with a John Deere 310-E front-end loader tractor when Mr. Greenwood was present on May 2, 2001. This tractor had a front bucket (approximately seven to eight feet wide) and a backhoe for excavating dirt on the back-end. Mr. Withers described the work which he performed when Mr. Greenwood was present as moving out and smoothing off the top of the sand landward of the CCCL in order for his equipment to get through. Mr. Withers also stated that he made areas in the easement seaward of the CCCL smooth by using the bottom of the bucket of his front-end loader to move sand around. Mr. Withers mentioned that he was very concerned that he needed to have the pathway he was utilizing in the access plan marked and smoothed off and fairly level. He believed the access plan authorized him to smooth off the areas on the access route. Mr. Withers stated that he had to have the access path level because he was bringing a self-propelled, 25-ton crane down the access path and they are top heavy and can get off balance, topple over, or get stuck. Mr. Withers described two types of work that he performed in the Easy Street Easement as: 1) clearing landward of the CCCL that required scooping and moving dirt, and 2) smoothing several areas seaward of the CCCL, just east of R-158 to around R- 160. An area of excavation damage seven feet seaward of the CCCL (beginning approximately 130 feet east of R-158) and an area 41 feet seaward of the CCCL (beginning at R-159, continuing east approximately 500 feet) are located within the area Mr. Withers stated he did some "smoothing off areas," again, east of R-158 and continuing east toward, but west, of R-160. Mr. Withers believed that Amended Permit FR-563 allowed him to use the Easy Street Easement in the access plan "to do . . . whatever was necessary and . . . needed to get [his] equipment, access [his] equipment down to the job site." He also admitted smoothing the areas. Mr. Withers also stated that Amended Permit FR-563 granted him permission to access the west end of Dog Island. Therefore, there was no need for him to locate the CCCL. Mr. Withers referred to the easement in the access plan as turning into a good pathway after he smoothed the areas. Mr. Withers stated that it was his "intention to gain access to the west end of Dog Island through a legal easement and an existing roadway" and that he wanted to utilize it. Mr. Withers testified "that he knew a lot of roads on Dog Island crossed seaward of the [CCCL]" in response to questioning whether he knew at the time of his performing work on the easement, whether or not the Easy Street Easement crossed seaward of the CCCL. He knew he was going to be traversing "fairly close" to the CCCL. Mr. Withers stated he did not knowingly violate the conditions of the Amended Permit. Mr. Withers was aware of the Department's permit requirements for work seaward of the CCCL when he performed his access work in the easement on Dog Island. However, Mr. Withers never had a survey done to figure out where the CCCL was located. Notice of the Alleged Violations Around May 2, 2001, the Department received a complaint that excavation was occurring seaward of the CCCL on Dog Island in the narrows area of the Easy Street Easement. On May 4, 2001, John A. Poppel, William Fokes, and Phil Sanders went to Dog Island on behalf of the Department to investigate the complaint of excavation in the narrows area seaward of the CCCL. On May 4, 2001, Mr. Poppel performed a survey of the narrows area and located the CCCL. He located monuments R-158- R-160. Department Exhibit 11. As a product of his survey, Mr. Poppel was able to depict the newly excavated roadway or pathway in relation to the CCCL. Mr. Poppel calculated that one area of damage was seven feet seaward of the CCCL and consisted of 503.8 square feet of damage and a second area of damage was 41 feet seaward of the CCCL and consisted of 5,305.6 square feet of damage. These square foot areas represent only the disturbed areas seaward of the CCCL, not the entire area between the CCCL and the Gulf of Mexico. Both areas of damage are within the area where Mr. Withers stated that he smoothed out the sand. As part of the May 4, 2001, investigation, William Fokes, an Engineer I with the Department, took photographs of the damaged areas and prepared an inspection report. Mr. Fokes' report indicates that an approximately 11-foot wide roadway or pathway had been cleared by excavation with the most seaward extent of the road being about 40 feet seaward of the CCCL. In addition, the report states that small dunes and beach vegetation had been destroyed. Mr. Fokes described the damage as excavation or grading done by some kind of machine, which cut and uprooted vegetation and pushed sand to the side as it leveled the ground. Mr. Fokes testified that the damage did not appear to be caused by merely traversing the area. Mr. Sanders, an engineer with the Department, processes CCCL permit applications and supervises Mr. Fokes, a field engineer. On May 4, 2001, Mr. Sanders observed the narrows area in question and confirmed that it looked like a "graded road" in that "[i]t appeared in the road bed that vegetation was gone and had been pushed out to the side, graded away," and that there was "excavation" seaward of the CCCL. Mr. Sanders stated that this activity did not comply with the approved access plan. On May 7, 2001, a Notice of Violation was issued to Mr. Withers for the "the unauthorized clearing and destruction of dunes and native vegetation for the purpose of constructing a roadway seaward of the coastal construction control line." Mr. Greenwood's photographs taken May 2, 2001, when compared with Mr. Fokes' photographs taken May 4, 2001, show that no discernable roadway or pathway was present landward or seaward of the CCCL in the narrows area at the time of Mr. Greenwood's inspection on May 2, 2001. This is evident when comparing Mr. Greenwood's photograph, Exhibit 15a, taken on May 2, 2001, with Department Exhibit 16g taken on May 4, 2001--the roadway or pathway present in the May 4, 2001, photo is absent in the May 2, 2001, photograph, and the vegetation has been removed from part of the area. Comparing Mr. Greenwood's photograph, Department Exhibit 15b, taken May 2, 2001, with Department Exhibits 16c and d, taken on May 4, 2001, also shows that the roadway or pathway was not present on the narrows portion of the Easy Street Easement at the time of Mr. Greenwood's inspection. The previously mentioned pictures, which were used for a comparison, were taken by two different people on separate dates, and from approximately the same locations. Also, Department Exhibit 16j was taken 250 feet east of R-159 and within the narrows area, facing east which shows clearing approximately 40 feet seaward of the CCCL. On May 14, 2001, at the request of the Department, Ken Jones, a principal engineer with Post Buckey et al., performed a damage assessment of the narrows portion of the Easy Street Easement which was seaward of the CCCL. Mr. Jones has a bachelor's degree in civil engineering and a master's degree in physical oceanography. Mr. Jones was familiar with the narrows area having been to Dog Island for recreation during the past 20 years and as a Dog Island property owner for the last three years. Mr. Jones described the narrows area as relatively flat and located between the St. George Sound to the north and the Gulf of Mexico beaches to the south. Between these two areas, the land is undulating sand and fairly consistent vegetation. At the time of Mr. Jones' damage assessment, he determined that a road had been cut through the vegetative portion of the dune of the narrows. Mr. Jones observed cut roots and a majority of the vegetation destroyed. Mr. Jones stated it appeared that the damage was caused by a vehicle with a blade on the front. The result was the road sat down in the sand approximately four to six inches. Mr. Jones stated that the work appeared to have been recent because distinct edges were still present. Mr. Jones took photographs and compiled an inspection report as part of his damage assessment. Mr. Jones testified that the damage "was pretty consistent from both landward and seaward of the [CCCL]." The pictures labeled Department Exhibits 18a1 and 18a2 depict a level pathway or roadway barren of vegetation seaward of the CCCL. Department Exhibit 18a4 is a photograph of a typical vegetated dune. Mr. Jones took this picture in order to have a general idea of what the vegetation coverage was in order to get an idea from a cost-estimating perspective. Mr. Jones's cost estimate for repairing the damage to the narrows area seaward of the CCCL, was approximately $7,500.00.4 Mr. Jones calculated the $7,500.00 by making an estimate of what it would cost to buy coastal vegetation, and by estimating what it would cost to employ laborers to hand rake the sand back into position and to plant the vegetation. Administrative Fine and Damages Jim Martinello, an environmental manager in charge of enforcement and compliance with the Bureau, used Mr. Jones' damage assessment estimate for informational purposes in assessing the damages amount for the narrows area. Mr. Martinello calculated the administrative fine and damages in accordance with Section 161.054, Florida Statues, and Rules 62B-54.002 and 62B-54.003, Florida Administrative Code. Rule 62B-54.002, Florida Administrative Code, provides that the Department shall assess fines for willful violations of, or refusing to comply with, for example, Section 161.053, Florida Statutes, and the fine should be sufficient to ensure immediate and continued compliance. In determining the actual fine within the range, the Department shall consider the offender's past violations, if any, and other aggravating or mitigating circumstances. Aggravating circumstances include prior knowledge of rules. Mitigating circumstances may be considered. Id. Mr. Withers had knowledge prior to the issuance of Amended Permit FR-563 of Department rules regarding permit requirements for construction activities seaward of the CCCL. On October 4, 1996, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible unauthorized construction seaward of the CCCL. This matter was resolved by entering into a consent order. On October 29, 1997, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible permit violation seaward of the CCCL. On November 13, 1997, Mr. Withers was issued a warning letter for possible unauthorized construction seaward of the CCCL. On October 27, 2000, Mr. Withers wrote a letter to Mr. McNeal indicating that he believed that the Easy Street Easement on Dog Island heading south from The Nature Conservancy cul-de- sac, then west to the west end of Dog Island, is landward of the CCCL and, therefore, no permit was necessary to reopen and use the easement, but he would have a surveyor establish the control line prior to work commencing. On November 7, 2000, Phil Sanders replied by letter to Mr. Withers' October 27, 2000 letter, in which Mr. Sanders reminded Mr. Withers of the pertinent rules and laws and suggested that Mr. Withers have the CCCL surveyed. On December 20, 2000, Mr. Martinello sent Mr. Withers an advisory letter informing him that the area he traversed (on July 2000) on the south route of the Easy Street Easement from the cul- de-sac on Dog Island was considered to be a dune as defined by Rule 62B-33.002, Florida Administrative Code. However, Mr. Martinello further advised that the Department did not take any action because "the traversing [did not] cause any substantial damage, it was minimal damage." In regard to the present case, it is more than a fair inference that Mr. Withers had specific knowledge of the CCCL and the Department's laws and rules, and that he knew excavation was not authorized seaward of the CCCL. The information in the prior Findings of Fact was used by the Department, and specifically Mr. Martinello, to determine that the harm to the beach resource or potential harm was major, and the administrative fine assessed was $7,500.00. However, part of Mr. Martinello's determination was predicated on Mr. Jones' assessment that the site one narrows violation was approximately 700 feet in length when, in fact, the area was approximately 500 feet in length, which explains in part the disparity between a 9,800 square foot area and the proven 5,305.6 square foot area. See Finding of Fact 78 and Endnote 4. Even the additional amount of damage of 503.8 square feet for the site two narrows area, when viewed in the aggregate, is significantly less than Mr. Jones' assessment of damages by square feet. (Mr. Martinello used the Jones' assessment as a guideline. Mr. Martinello says that the mistake did not alter his decision, although he was unaware of the mistake until the final hearing. He also says that Mr. Jones recommended a higher damage amount than the $5,000.00 assessed by the Department in its preliminary Final Order. He did--$7,500.00 for 9,800 square feet of damage.) Grossly negligent or knowing violations of statutes and Department rules regarding coastal construction seaward of the CCCL, which result "in harm to sovereignty lands seaward of mean high water or to beaches, shores, or coastal or beach-dune system(s), including animal, plant or aquatic life thereon," shall be considered in determining damages. Rule 62B-54.003(1), Florida Administrative Code. Rule 62B-54.003(2), Florida Administrative Code, provides that a damage amount greater than the minimum amounts may be assessed to ensure, immediate and continued compliance and the Department may consider, e.g., the need for restoration and the damaged ecological resource. The Department determined that the violation was knowing based on the factors mentioned above. The Department also considered the need for restoration and the damage to ecological resources and whether the amount would ensure immediate and continued compliance. Id. The Department determined that there was harm to the resource and that it was major and knowing. The Department proposed to assess the minimum damage amount of $5,000.00. On January 11, 2002, the Department entered a preliminary Final Order for the unauthorized grading and destruction of dunes and dune vegetation seaward of the control line for the purpose of constructing a roadway. The amount assessed in the Final Order was $12,500.00, $7,500.00 in administrative fines and $5,000.00 in damages, as described above. As noted, there has been harm to the beach area resource seaward of the CCCL and the Department proved the need for restoration and the damage to the ecological resource. In mitigation, Mr. Withers' construction access plan was approved by the Department. The Department knew that Mr. Withers intended to use the access route, which ran seaward of the CCCL from approximately R-157 to R-159 (except for a small portion between R-158 and R-159) in the narrows area; that Mr. Withers planned to transport equipment and materials by truck using the access route and necessarily would traverse seaward of the CCCL; and that he would continuously use the access route until the project was completed. The actual damaged area is less than originally determined by Mr. Jones, thus the need for restoration reduced. Mr. Jones, without the benefit of a survey, estimated the total cost to restore the damaged area of 9,800 square feet to be approximately $7,500.00. The total square feet of damage proven in this proceeding is 5,809.4 square feet in the narrows area and the Department is requesting $12,500.00 in fines and damages. Based on an approximate ratio of square feet and dollars needed to restore, a damage assessment in the amount of $4,500.00 is appropriate. Balancing the aggravating and mitigating circumstances, a fine of $3,500.00 is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: That a final order be issued adopting this Recommended Order; and Within 30 days of a final order being effective, Petitioners shall pay a fine of $3,500.00 and $4,500.00 in damages with the total amount of $8,000.00, to the Department of Environmental Protection. DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2003.
Findings Of Fact Marvel O. Warren and his brother Dan own a parcel of beachfront property in Walton County, south of State Road 30A (SR30A) near Seagrove Beach. Like Mr. Warren, the other intervenors own beachfront in the area, which lies in County Commission District Five. In 1954, before the Warrens built their house landward of the dunes, no road ran toward the beach from SR30A. Construction traffic to the house site beat down a path, however. In Walton County, each county commissioner is responsible, within the district he represents, for road maintenance and, on existing county right-of- way, for construction of new roads. DNR's Exhibit No., 7; Testimony of Owens. Expenditures in excess of $500 for materials beyond what the county has stockpiled require approval by the full commission, however. Testimony of Owens. FIRST ROAD BUILT Albert Gavin of Freeport was county commissioner for District Five when, in 1958 or 1959, he caused a red clay road to be built from SR30A southerly along the eastern edge of the Warren property over sand dunes and onto the beach to within 20 or 30 feet of the water's edge. During Mr. Gavin's tenure, the county owned a borrow pit and kept no records of how much clay was placed where. (No records of the quantity of clay deposited on the beach at any time were offered in evidence at the hearing.) Fishermen used the road to launch boats into the Gulf of Mexico. Except for any portion that may have extended onto sovereignty land, the road lay on county-owned right-of-way. UPLAND SEGMENT PERMANENT The clay road landward of the sand dunes leading along the eastern edge of the Warren property to SR30A (the upland road) has been consistently maintained and in existence since it was originally built. The upland road ends at the bluff line, which is practically congruent with the coastal construction control line at that point on the coast. DNR's Exhibit No. 4; Testimony of Hill. At some time between 1960 and 1969, also landward of the subsequently established coastal construction control line, a clay parking lot was built adjacent to the upland road. BEACH SEGMENTS EVANESCENT Whenever clay has been placed on the beach, seaward of the crest of the landwardmost sand dune, the gulf has washed it away. Many clay roads at the site did not last the summer. Virtually no clay deposit has lasted longer than a full year. One attempt after another to construct a clay road seaward of the sand dunes (the beach segment) has failed. Witnesses testified that the sun bleached the red clay and that wind covered it with white sand but wave action has been the clay's principal nemesis. When Harold C. Lucas was commissioner for District Five from March, 1968, to January, 1969, no clay was deposited on the beach and there was no beach segment. Except for three months in 1975 when Van Ness R. Butler, Jr., of Grayton Beach, served as District Five's county commissioner, Conley Martin of Portland represented the district from 1969 to 1976. As county commissioners, both of these men directed clay to be placed on the beach at various times. COASTAL CONSTRUCTION CONTROL LINE ESTABLISHED A beach segment was in existence at the time the coastal construction control line was established, and recorded, on June 4, 1975, although the beach segment that then existed went straight from the foot of the sand dune toward the edge of the gulf, instead of veering east like the new; longer beach segment built last September. THEN EXISTING ROAD DESTROYED, REPLACED In September of 1975, Hurricane Eloise removed not only the beach segment of the road but much of the beach, including the dunes themselves. As road foreman for District Five at the time, Robert N. Budreau used a road grader and other equipment to fill a large hole between the Warren house and the sand dune and to cover over broken toilets and other debris with a mixture of sand and yellow clay. After the filling, a roadway was constructed with the same sand and clay mix, extending about 25 feet seaward of the dunes along a line perpendicular to the gulf shore. REPLACEMENT ROAD RECLAIMED BY ELEMENTS In 1976, Freddie M. Bishop was elected county commissioner for District Five. After the beach segment built by Mr. Budreau washed out, at least one constituent, Gene Wesley, asked Mr. Bishop to replace it, but Mr. Bishop broke with sisyphean tradition, and declined to place any clay on the beach, or otherwise attempt to reconstruct or replace the beach segment. By the time petitioner McLean succeeded Bishop as commissioner for District Five, the beach segment had been completely obliterated. The end of the upland road continued, however, to be one of some half-dozen points of access for four-wheel drive vehicles to Walton County's gulf beaches. Commissioner Bishop did cause two truckloads of oyster shells to be deposited on the "hump" of the landward sea dune, on or near the bluff line. NEW BEACH SEGMENT In response to constituents' requests, Mr. McLean ordered a new road built. He caused clay and gravel to be placed and compacted seaward of the coastal construction control line by county workmen and machinery, including some "borrowed" for the purpose from colleagues on the Walton County Commission. Built without a DNR permit in September of 1981, this new beach segment extends 180 feet seaward of the coastal construction control line and takes an unprecedented veer to the east. The only preexisting foundation for the new beach segment was the beach itself. Like Commissioner Anderson, Commissioner W. F. Miles "lent" county trucks he had charge of to respondent McLean, but Mr. Miles did not know in advance that Mr. McLean intended to use them to build a road on the beach. Commissioners Matthews, Miles, and Owens were aware of the existence of the coastal construction control line in Walton County and, in a general way, of DNR permitting requirements and procedures, including the fact that the County Commission itself acts on certain coastal construction applications. Commissioners Anderson and McLean did not testify on these matters. DNR has issued no permit for anything like the new beach segment at any time since the coastal construction control line wad established. DNR has no record of any inquiry concerning the new beach segment by or on behalf of petitioners McLean or Walton County, before the new beach segment was built. There was no showing that Mr. McLean sought legal advice before ordering construction of the new beach segment. Paragraphs 1 through 8 of DNR's "Final Order," as amended at the final hearing and set forth above, have been established by stipulation of the parties. The hearing officer has had the benefit of posthearing submissions, including proposed findings of fact, filed by all parties. Proposed findings have been adopted, in substance, where relevant, except when unsupported by appropriate evidence.
Recommendation Upon consideration of the following, it is RECOMMENDED: That DNR order petitioner Walton County to remove the new beach segment seaward of the Walton County Coastal Construction Control Line within 30 days of entry of a final order. That DNR remove the new beach segment seaward of the Walton County Coastal Construction Control Line itself, in the event of petitioner Walton County's noncompliance with the final order; and take steps to recover the cost from petitioner Walton County. That DNR impose no civil or administrative fine against petitioner W. L. "Billy" McLean. DONE AND ENTERED this 30th day of July, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982. COPIES FURNISHED: George Ralph Miller, Esquire Post Office Box 687 DeFuniak Springs, Florida 32433 W. Dennis Brannon, Esquire Post Office Box 1503 Fort Walton Beach, Florida 32549 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 M. Stephen Turner, Esquire Post Office Drawer 591 Tallahassee, Florida 32303 Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
Findings Of Fact 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.
Findings Of Fact After DNR issued a cease and desist order to Petitioner, forbidding further construction on his Walton County lot seaward of the coastal construction control line, he applied for an after-the-fact permit authorizing work to go forward on a three-story ten-unit condominium, which would occupy some 95 percent of the width of his lot, and extend 34 feet seaward of the coastal construction control line. Petitioner's Exhibit No. 1. DNR staff stated the following, in recommending denial: There presently exists over 160 feet of property located landward of the control line in which the proposed structure could be sited. The staff is concerned that the proposed encroachment is not justified, nor considered necessary for reasonable use of the property. In addition, staff is concerned about the potential cumulative effects of siting major structures seaward of the control line along this section of the coast, which contains a number of undeveloped lots, as well as redevelopable lots. The cumulative impact of such construction will result in significant disturbance and damage to well-established, mature vegetation and eventual destabilization of the coastal barrier dune ridge. Also, the proposed encroachment and shore-parallel site coverage will have an adverse impact on the natural recovery processes of the beach/dune system following the impact of a major storm event. The proposed building is not designed in accordance with the standards set forth in Subsections 16B-33.05(6) and 16B-33.07(1) and (2), Florida Administrative Code. File number WL-183 ATF has been assigned. . . . RECOMMENDED DENIAL, ASSESMENT OF A CIVIL FINE OF FIVE THOUSAND DOLLARS ($5,000) AND REQUIRING REMOVAL OF THE EXISTING UNAUTHORIZED CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE. Petitioner's Exhibit No. 1. The "reference [to] the extensive site coverage was not only the shore parallel site coverage, but also included the proposed encroachment seaward of the control line." (T. 18). DNR staff opposes construction on Mr. Hill's lot of a habitable structure seaward of the control line. (T. 19, Petitioner's Exhibit No. 2, pp. 12 and 13). Petitioner Hill timely instituted formal proceedings on his application, WL-183 ATF, and Case No. 85-2455 is still pending. Shore Parallel Site Coverage Since October of 1983, in processing coastal construction permit applications, DNR has taken into account "shore parallel site coverage," i.e., DNR staff have considered the relationship between lot width and the width of any structure proposed to be built fronting the water, seaward of a coastal construction control line. A succession of waterfront buildings stretching the entire width of their respective lots walls off the foreshore from more landward dunes. "[I]f you cover an extensive portion of the beach in the shore parallel direction, you tend to she[a]r off the upland area from the beach area and limit and inhibit the natural recovery processes of the dune system." (T. 15) With respect to Petitioner's proposed project and any other of this size and shape planned this far down on a similarly platted, developed and configured beach, DNR engineers put the maximum acceptable width of the structure at 50 to 60 percent of the lot's gulf frontage. Petitioner's Exhibit No. 2, p. 23; T. 20, 22, 32, 35. DNR has no written policy limiting the width of structures built seaward of the coastal construction control line. Although DNR endeavors to treat similar sites similarly, sites vary significantly and different widths may be allowed on similar sites when structures with different depths are planned. Petitioner's Exhibit No. 3, pp. 9-13. In its post-hearing memorandum in support of Petitioner's rule challenge to DNR's non-rule policy regarding side setbacks, Petitioner quotes the following: Q: Would you generally recommend this 50 to 60 percent shore-parallel site coverage for other types of similarily situated lots, either on the same beach or on other beaches in Florida? A: The reference 50 to 60 percent is something we would feel comfortable with in certain areas of the beach that have similar characteristics and existing--similar situations regarding existing development, potential for redevelopment, stability of the dune area, and things of that nature. It certainly wouldn't apply--those figures wouldn't apply to all areas of the Florida coastline. [Deposition of Brett Moore, September 10, 1985, pp. 16-17.] Q: But for, say, a similarly situated beach, maybe you would try to get people to move toward that time of width without specifically telling them that that's the width of coverage that you desire. A: For the two areas I mentioned, I feel that something in the vicinity of 60 percent site coverage would be acceptable to the staff, and that's what I would tell people if someone proposed a project in that area today. [Deposition of Brett Moore, p. 27.] A: Given that amount of encroachment on the dune, I feel that a reasonably acceptable shore-parallel coverage, given that shore- normal coverage, that would not have a significant adverse impact, would probably be between zero percent coverage and thirty percent coverage. In terms of what we would recommend, generally, in what kind of dune encroachment of a major structure, approximately a thirty-foot width, or about fifty percent coverage would probably be acceptable in terms of the impact to the dune and the recovery potential following a major storm event. Q: Okay. Did you--so fifty percent would probably be okay by your lights; is that a fair characterization of that statement you just made? A: Yeah, I could recommend a fifty percent coverage there, . . . In terms of what I would recommend for a site like that with that kind of encroachment with a major structure on the dune, I would recommend approximately fifty percent coverage. Q: What about for a similar type of beach, not one down in Charlotte County or any place like that, but let's just say a similar type of beach somewhere in the panhandle, same relative dimensions, topography and the like? A: So for the same---for the same site, I would recommend the same. [Deposition of Ralph Clark, pp. 10-11.] At 2-3. Neither this evidence nor any other adduced at hearing proved the existence of an agency statement of general, statewide application purporting in and of itself to have the direct and consistent effect of law. It is DNR's policy to treat similarly situated landowners similarly and to consider cumulative impact. The parties proposed orders contain proposed findings of fact which are addressed by number in an appendix to this final order.
