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 The issue is whether to approve the City of Gulf Breeze's (City's) application for a Consolidated Wetland Resource Permit and Sovereign Submerged Lands Authorization to conduct a restoration project in Pensacola Bay.
Findings Of Fact Background This dispute involves a challenge by Petitioners to the third phase of a restoration project by the City designed to preserve the Island and protect its historical resources. The project site is located in sovereign submerged lands adjacent to the Island on the southwest side of the Highway 98 Bay Bridge which traverses Pensacola Bay connecting the Cities of Gulf Breeze and Pensacola. The Island is not a true island, but has always been connected to the mainland by a strip of land referred to as an isthmus, which meets the shoreline at Lot 36 of an older subdivision known as the First Addition to Casablanca Parcel No. 1 and platted almost sixty years ago. The isthmus juts out from Lot 36 into Pensacola Bay in a northwesterly direction for several hundred feet before making a 90-degree turn to the southwest where the Island then runs roughly parallel to the shoreline for around a half mile. See Joint Ex. 5-7, 14, and The Island, isthmus, and shoreline form the boundary around a small body of water known as Gilmore Bayou, an ecologically important and pristine salt marsh area. According to aerial photographs, at its widest point, the Island appears to be no more than a few hundred feet wide. Petitioners reside at Lot 37, which is just northeast of the isthmus on the shoreline. The rear part of Lot 37 faces Pensacola Bay and the City of Pensacola to the northwest. Lots 36, 35, and 34 (running to the southwest along the shoreline and facing Gilmore Bayou), are owned by Patricia Moreland, Robert Ozburn, and Intervenor Paul Tamburro, respectively, all of whom testified at the final hearing. Except for Petitioners, the project is supported by virtually all of the residents of the area as well as numerous civic organizations. See Joint Ex. 33. On July 14, 2008, the City filed with the Department its Joint Application for Works in the Waters of Florida, which would allow the City to complete the third phase of the project by (a) planting native submerged vegetation over approximately three acres of sovereign submerged lands, and (b) placing approximately 16,000 cubic yards of fill material and planting native emergent vegetation to stabilize the fill material on sovereign submerged lands at the north end of the Island. See Joint Ex. 3. The Department has authority under chapter 373, Florida Statutes, and Florida Administrative Code chapter 18-21 to approve the application. After an extensive review of the application, on August 9, 2010, the Department issued a Consolidated Notice of Intent to Issue Wetland Resource Permit and Consent to Use Sovereign Submerged Lands, which authorized the proposed project. See Joint Ex. 4. The proprietary authorization (letter of consent) was issued under the authority of rule 18- 21.005(1)(c), which identifies a number of activities that qualify for a letter of consent. In this case, because of the range of proposed activities, the project could qualify for a letter of consent under subparagraphs 8., 15., and 16. of the rule. On September 1, 2010, Petitioners filed their petition challenging the proposed agency action. While their initial pleading raised a number of issues, and cited two rules as a basis for reversing the agency action, these allegations have been substantially narrowed over the course of the proceeding and are now limited to the following: whether the project constitutes management activities associated with the protection of a historic site, thus qualifying for a letter of consent under rule 18-21.005(1)(c)16.; and whether the project unreasonably restricts or infringes upon their riparian rights of navigation, boating, swimming, and view, as proscribed by rule 18-21.004(3)(c). They also question whether Intervenor has standing to participate, but that issue is not dispositive of the primary issues in this case. Petitioners do not contest the issuance of a Wetland Resource Permit. Finally, Respondents and Intervenor question whether Petitioners have standing to initiate this action. The Project Site The project is located on sovereign submerged lands adjacent to the Island, a "naturally occurring sandy beach," as that term is contemplated in rule 18-21.005(1)(c)8. This is true even though portions of the "sandy beach" have eroded over time. The City owns the entirety of the Island. See Joint Ex. 14 and 15. This was not disputed by Petitioners. The Island is a public park, natural preserve, and historic site that is owned and maintained by the City exclusively for public use. Deeds by which the property was conveyed to the City require that it be forever used as a natural preserve and maintained in its natural state. See Joint Ex. 14 and 15. The Island and the area immediately adjacent thereto have a long and significant history dating back to the 1700's. Throughout the 1700's and 1800's, various portions of the Island were used as a careening facility for the repair and maintenance of large vessels. A marine railway was also built. In the late 1800's, a quarantine station was constructed on the Island where people who had contracted yellow fever were isolated. A cemetery exists upon the Island containing the remains of many who perished from the yellow fever epidemic. Also, there were many shipwrecks at the Island, of which some of the remains still exist. Accordingly, there are historic resources and artifacts such as shipwrecks and human remains on and around the Island. The Island has sustained significant erosion over the past 70 years. The northeast shoreline has eroded some 450 to 500 feet during that period of time. There has been a significant loss of vegetation and land mass. Without protection, the Island is in a perilous condition and subject to a permanent breach. The peat bog underlying the Island is vital to the stability of the Island and has been greatly damaged. It requires protective measures, such as those contemplated by the proposed project in order to assure its preservation. Due to the effects of hurricanes and storms, the erosion has substantially increased during the past decade. The erosion has caused the unearthing of and damage to historic artifacts and the salt marsh in Gilmore Bayou. There are clearly visible remnants of the former marine railway on the Island, which are being weakened by current weather events and require protection in order to preserve them. Caskets from the cemetery as well as human bone remains have been unearthed and additional damage will occur without protective restoration efforts. If the erosion continues, there will be more damage to the historic artifacts and the salt marsh will be destroyed. The Project To prevent further erosion and to protect the Island and Gilmore Bayou, the City has applied to the Department for three separate phases of a project to stabilize the shoreline. The first two phases of the project involved the construction of an artificial reef breakwater and the planting of shoreline vegetation. See Joint Exhibit 7a. They have already been approved by the Department and are no longer in issue. The first and second phases were challenged by Petitioners but the cases were eventually settled. See Case No. 09-4870, which involved the second phase. The third phase of the project is being conducted primarily for the maintenance of essentially natural conditions and for the propagation of fish and wildlife. This phase can be described as follows: restoration or nourishment of a naturally occurring sandy beach as contemplated by rule 18-21.005(1)(c)8.; habitat restoration or enhancement as contemplated by rule 18-21.005(1)(c)15.; management activity associated with protection of a park as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a preserve as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a historic site as contemplated by rule 18-21.005(1)(c)16.; and management activity associated with protection of habitat restoration or enhancement as contemplated by rule 18- 21.005(1)(c)16. While the project implicates each of the above provisions, the application and proposed agency action indicate that the letter of consent is granted on the theory that the project is associated with protection of historic sites. See Joint Ex. 4. The third phase is also designed to minimize or eliminate adverse impacts on fish and wildlife habitats and other naturally occurring resources. The project consists of the placement of 16,000 cubic yards of fill material in the area between the existing artificial oyster reef and the shoreline to restore and replace conditions that previously existed. The fill will consist of beach compatible sand that will be approximately six inches to a foot above mean high water. This phase also involves the planting of appropriate native wetland vegetation in the fill area, which will help stabilize the fill. The planting of vegetation in the third phase is separate and distinct from the plantings authorized in the second phase of the project. The project is needed in order to prevent further damage to a public park; public preserve; threatened, endangered, or special concern species of vegetation/habitat; and historic artifacts. These protection efforts were requested and recommended by the Florida Department of State. Petitioners contest only the propriety of the fill materials and the planting of the emergent stabilizing grasses on the fill. The fill portion of the project is located a significant distance from Petitioners' property. The closest portion of the project is estimated to be at least 550 feet from Petitioners' property, while the bulk of the project will take place between some 750 to 1,200 feet from their property. The Proposed Vegetation Planting In the third phase of the project, the City proposes to plant and establish emergent grasses (those that grow in water but partially pierce the surface) and sea grasses, all of which are appropriate native wetland vegetation on the Island. The proposed emergent grasses are Spartina alterniflora (also known as smooth cordgrass) and Juncus roemerianus (also known as black needle rush), which will be used for stabilization of wetlands. The proposed submerged seagrasses are Halodule wrightii (a type of shoal grass) and Ruppia maritime (a type of widgeon grass), which will help stabilize the fill. The smooth cordgrass is native to the Island. It will be planted in the fill area to prevent the fill from eroding. It is expected that once they mature, the height of the plants will not exceed two and one-half feet. Due to the water depth in the area, the shoreline slope, the sediment supply, and the wave action, the smooth cordgrass will not spread outside the proposed project area. Also, it will not interfere with navigation, boating, swimming, fishing, or view. The vegetation will, however, help fishing in the area. The black needle rush is also native to the Island. It will only grow to approximately two and one-half feet in height due to stressful conditions caused by the salt content in the water and wave action. It will not spread beyond the proposed project area and will not interfere with navigation, boating, swimming, fishing, or view. Like the smooth cordgrass, it will enhance fishing in the area. Both Halodule wrightii and Ruppia maritime are native to the Island. Both have slow growth rates, which when coupled with the "high energetics of the system," will hinder their ability to spread outside the project area. Neither seagrass will hinder navigation, boating, swimming, fishing, or view. They will afford a greater opportunity for snorkeling, recreation, and fishing; they will serve as a nursery habitat for finfish and shellfish; they will increase the habitat value of the area; and they will improve water quality. Petitioners submitted no evidence to contradict these findings. They also failed to submit any evidence that the fill material or grasses would spread into any riparian area that might be appurtenant to their Lot 37. The above findings are reinforced by the results of a separate project known as Project Greenshores located across Pensacola Bay from the Island. Project Greenshores involved the restoration of wetlands using dredge material to restore islands that are then protected by the construction of a breakwater and are stabilized by the planting of the same grasses that are proposed for the Island project. The two projects are in relatively close proximity to each other and have essentially the same environment. One difference, however, is that Project Greenshores receives a small source of sediment from stormwater outfalls, which means that it has a higher chance of grasses growing than does the Island. Even with the increased sediment, the grasses at that project have not spread beyond the project area, they have not interfered with navigation, boating, swimming, view, or fishing, and they have enhanced fishing in the area. Historical Artifacts Petitioners contend that the project does not qualify for a letter of consent under rule 18-21.005(1)(c)16. That provision authorizes the Department, acting on behalf of the Board of Trustees of the Internal Improvement Trust Fund, to issue a letter of consent for "management activities associated with . . . historical sites . . . provided there is no permanent preemption by structures or exclusion of the general public." As noted above, the Island has a long and significant history dating back to the early 1700's and there are historic resources and artifacts on the Island. See Finding of Fact 10, supra. When there is an archeological site issue in a permit, the Department typically relies on information from the Division of Historical Resources of the Department of State. See Fla. Admin. Code R. 18-21.004(2)(c)("reports by other agencies with related statutory, management, or regulatory authority may be considered in evaluating specific requests to use sovereignty lands"). Here, the Department relied on information from that agency, which indicates that there are archeological resources at the project site. The Department of State also recommended placing fill over the artifacts to protect them, which will be accomplished by the proposed fill. In addition, the Department relied upon information contained in a survey conducted by Mr. Empie, a registered professional surveyor, to generally show where those artifacts are located. See Joint Exhibit 5, also referred to as the Empie survey. The evidence supports a finding that the project is for management activities associated with historical sites. The record shows that there is strong public support for the project. See Joint Ex. 33. Although many of the artifacts will be covered by the fill, the fill will actually protect them from damage, destruction, theft, and removal. By protecting them, future generations will be able to enjoy the artifacts. No "structures," as that term is defined in rule 18- 21.005(1)(c)16., are part of the project. Therefore, the project will not cause permanent preemption by structures. Contrary to Petitioners' assertion, the project will not exclude the general public from the fill area. The City contemplates that other activities, such as underwater snorkeling, will encourage the public to utilize the project site. The evidence supports a finding that the project qualifies for a letter of consent under this rule. Riparian Lines The Empie survey provides a reasonable depiction of the various riparian lines in the areas adjacent to the proposed project. See Joint Ex. 5. A professional surveyor with the Division of State Lands, Mr. Maddox, agreed that it was a reasonable depiction of the angle of the riparian lines and a "fair distribution of riparian areas," including that of Lot 37. The only property owner adjacent to the Island is Patricia Moreland, who owns Lot 36 and has resided on that parcel since 1956. As noted above, the isthmus meets the northwest boundary line of Lot 36. By executing a Letter of Concurrence, Ms. Moreland conferred upon the City all rights, both proprietary and riparian, that she has with respect to Lot See Joint Ex. 16. Petitioners contend that they own riparian rights appurtenant to their Lot 37, which is to the east of Lot 36. The City and Intervenor dispute this claim and contend that Lot 37 does not adjoin any navigable water and thus there are no riparian rights appurtenant to Lot 37. Assuming arguendo that Lot 37 adjoins Pensacola Bay, it is still separated from the project site by riparian areas appurtenant to the Moreland property (Lot 36) as well as the riparian areas appurtenant to the City property, i.e., the Island and isthmus. The Empie survey, which reasonably depicts the riparian lines in the project area, shows the project site as being approximately 300 feet inside the existing breakwater, which is shown as being no closer than 48.9 feet away from the westernmost riparian line appurtenant to Lot 37. See Joint Ex. The primary portion of the fill site is located around 370 feet from the closest point of the western riparian line appurtenant to Lot 37. Id. No portion of the project is located within 25 feet of the Lot 37 riparian line. Id. Petitioners presented no evidence disputing the riparian areas identified on the Empie survey or otherwise identifying the areas of riparian rights appurtenant to their property. While they engaged the services of Mr. Barrett, a professional land surveyor to prepare a boundary survey, the purpose of the survey was to show that Lot 37 adjoins Pensacola Bay, rather than depicting the riparian areas appurtenant to that lot. See Petitioners' Ex. 1. Infringement on Riparian Rights Rule 18-21.004(3)(c) requires that "activities [in submerged lands] must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland property owners." (emphasis added) Petitioners contend that, even though they do not routinely use their riparian rights, the project will restrict or infringe upon their riparian rights of boating, swimming, navigation, and view. To make this determination, they assert that the appropriate test under the rule is mere infringement, and not "unreasonable" infringement; however, this interpretation is contrary to the plain wording in the rule. The main living floor of Petitioners' residence is approximately 50 feet above sea level. The emergent grasses will be located no closer than 500 feet from the edge of Lot 37 and 600 feet from their residence and are expected to grow only to a height of no more than two and one-half feet. The concern that the grasses will impair Petitioners' view is without merit. Although Dr. Cope initially believed that fill or grass would be placed or planted "all the way up to and abutting our lot 37," this interpretation of the City's plans was incorrect. A photograph taken from his back yard indicated that he could view the northeastern corner of the Island where new vegetation or fill might be placed, but the photograph depicted an area outside of the Lot 37 riparian area. See Petitioners' Ex. 18. While Dr. Cope initially stated that the new emergent grass would "clearly degrade the view from both the house and the shoreline," he later acknowledged that the project would not have any effect upon his view of Lot 37's riparian areas. There are a boathouse and dock in the waters behind Petitioners' house. However, Petitioners submitted no evidence to support their suggestion that the project might cause the water behind Lot 37 to become more shallow and adversely affect boating and navigation. Contrary evidence by the Department and City was unrefuted. Finally, Dr. Cope stated at hearing that he has never been swimming in Gilmore Bayou or Pensacola Bay and has no intention of doing so. His wife offered no evidence that she ever intends to swim in those waters. In summary, the activities undertaken in the project area will not unreasonably restrict or infringe upon Petitioners' riparian rights of swimming, boating, navigation, or view within the meaning of rule 18-21.004(3)(c). Petitioners' Standing Respondents and Intervenor contend that Petitioners lack standing to bring this action for two reasons: that they do not own Lot 37 individually but rather as trustees, and the petition was not filed in that capacity; and that Lot 37 does not adjoin navigable waters. See § 253.141(1), Fla. Stat. ("[r]iparian rights are those incident to land bordering upon navigable waters"). As described by the City's real estate expert, in June 2010, or before the instant petition in this case was filed, the Copes executed two deeds for estate planning purposes, which resulted in "legal title [being] owned part by Dr. and Ms. Cope as to one-half life estate and for Ms. Cope as to one-half for her life estate [and] then the remainder interest is vested in the trustees [of the D. Nathan Cope or Cynthia Russell Cope revocable trust agreements] for the remainder interests." Put in plainer language, this meant that the ownership of Lot 37 is now divided as follows: an undivided 50 percent is owned by the wife as to a life estate and by the wife's revocable trust as to the remainder interest, and the other undivided 50 percent is owned by the wife and husband as to a life estate for the husband's lifetime and by the husband's revocable trust as to the remainder interest. Therefore, there are four entities or persons with an ownership interest in the property: Dr. Cope, Mrs. Cope, Dr. Cope's trust, and Mrs. Cope's trust. The City presented expert testimony regarding the chain of title of Lot 37, beginning in June 1952 when the subdivision was first platted, and running through June 2010, when Petitioners conveyed the property to themselves as trustees of two revocable trusts. According to the expert, the subdivision plat in 1952 reflects a narrow strip of property (described as a hiatus strip) separating the entire subdivision, including Lot 37, from the waters of Gilmore Bayou, Pensacola Bay, and Woodland Lake, a nearby body of water. The strip was a park that was dedicated to the public. See Joint Ex. 1. In 1962, the developer conveyed by quit claim deed the entire strip to the record title holder of each lot in the subdivision. At that time, Lot 37 was owned by the Blaylocks. The expert found that each conveyance of Lot 37 that occurred after 1962, up to and including the Copes' purchase of the property in February 2008, did not include the hiatus parcel. Therefore, he opined that title in the strip property continues to remain with the Blaylocks. Besides his title search, the expert further corroborated this opinion by referring to a topographic survey of Lot 37 prepared in June 2005, see Joint Ex. 2a; a title insurance policy on Lot 37 issued in 2008 when the Copes purchased the property that specifically excludes title insurance for the hiatus parcel; and a recent Santa Rosa County tax bill describing the property without the hiatus parcel. In response, Petitioners contend that the hiatus strip never existed or the 1952 plat is invalid because it failed to comply with section 177.08, Florida Statutes (1951), which required that "all land within the boundaries of the plat must be accounted for either by blocks, out lots, parks, streets, alleys or excepted parcels." Because a dispute over the exact boundary lines of Lot 37 exists, this issue must be resolved in the appropriate circuit court. See § 26.012(2)(g). For purposes of deciding the merits of this case, however, it is unnecessary that this determination be made. Intervenor's Standing Dr. Tamburro currently resides on Lot 34, which faces Gilmore Bayou, and jointly owns the property with his wife. He uses the Bayou to boat and for other recreational purposes. He also uses the Island to swim, walk, and boat. The preservation of the Island is important to him since it serves as a barrier island in protecting his home during storm events. Although Dr. Tamburro's wife did not join in his petition to intervene (but appeared as his counsel), he still has a recognized ownership interest in the property.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the City's application for a Wetland Resource Permit and Letter of Consent to Use Sovereign Submerged Lands. DONE AND ENTERED this 20th day of April, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2011.
The Issue The issue is whether Petitioner's after-the-fact modification application for construction activities seaward of the coastal construction control line in New Smyrna Beach, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In 1984, Petitioner, Thomas R. Sweeney, purchased a home at 5917 South Atlantic Drive, New Smyrna Beach, Florida. At that time, the home was approximately 3,000 square feet in size. The home sits seaward of the coastal construction control line (CCCL) and thus any construction activities on the premises require the issuance of a CCCL permit from Respondent, Department of Environmental Protection (DEP). In 1987, Petitioner constructed a first floor porch, second story addition, and wooden deck at the site without first applying for and obtaining a CCCL permit from the Department of Natural Resources, which was subsequently merged with DEP. After the construction was completed, Petitioner submitted an after-the-fact application for a CCCL permit for those structures. Before being issued Permit Number VO-423, Petitioner was required to pay an administrative fine. Among other things, Permit VO-423 approved an already constructed wooden deck on the eastern side of the home which approximated 840 square feet in size. Petitioner was also given approval for a wooden walkway with stairs that provided access to the beach. On June 1, 1995, Petitioner filed a second CCCL application with DEP to add a 20-foot first and second story addition with a deck to the south side of the home. After reviewing the application, on November 9, 1995, DEP issued CCCL Permit Number VO-627 authorizing the scope of work identified in the permit application documents. Notwithstanding the limited amount of work authorized by the permit, Petitioner constructed a third story addition to his home. He also removed the original wooden deck on the eastern side of the home, and he constructed spread footers and a foundation on top of the rock revetment for a new and much larger deck. The new deck is approximately 2,100 square feet, or more than 1,200 square feet larger than the original permitted deck. In its present state, the home is approximately 5,600 square feet, and the existing eastern deck is larger than any permitted deck on any other single-family home in Volusia County. On September 9, 1996, DEP discovered the third story addition and the much larger wooden deck with appurtenant structures. Presumedly at the behest of DEP, on November 22, 1996, Petitioner submitted an application for an after-the-fact modification of CCCL Permit Number VO-627 to authorize the previously completed, unauthorized work. On April 23, 1997, DEP issued CCCL Permit Number VO-627 After-the-Fact. The permit approved the third-story addition to the home together with a 10-foot wide wooden deck on the seaward side of the entire third story and a 12-foot wide wooden deck on the landward side of the third story. DEP denied, however, authorization for Petitioner's new wooden deck on the first floor with a tiki hut and sundeck on the ground those structures violated Rule 62B-33.005(4)(e), Florida Administrative Code. That rule requires that any new construction seaward of the CCCL "minimize the potential for wind and waterborne missiles during a storm." The issuance of the proposed agency action prompted Petitioner to initiate this proceeding. On November 3, 1997, DEP entered a Final Order directing Petitioner to pay a fine because he illegally constructed structures seaward of the CCCL. The order was never appealed, and thus the time to challenge the order has elapsed. As of the date of hearing, Petitioner had not paid the fine, and a statutory lien has been placed on the property. The Storm Surge Elevation at this site for a 100-year storm event is 10.7 feet N.G.V.D. The Breaking Wave Crest- Elevation for a 100-year storm event at this site is 14.9 feet N.G.V.D. Part of the new eastern deck is located below an elevation of 14.9 feet N.G.V.D. The builder who constructed the additions, Edward Robinson, characterized them as "above average to superior" in quality. To minimize the possibility of the deck washing away during a storm event, he used the "best" nails, bolts, and concrete available. In addition, the new decking was rested upon concrete footers for support. The footers, however, are on top of a rock revetment, and Robinson conceded that such footers are not as stable as a pile foundation. Petitioner used coquina rock (with a low unit weight) for his revetment. It was established that the rocks on which the footers rest are not permanent, and they can shift during a large storm event. In fact, shifting can occur even during a ten-year storm, and there will be a total failure of the revetment during a thirty-year storm event. Once the stones move, an erosion process begins, and the deck will fail. The accompanying high winds will then lift the wooden debris in an airborne fashion. Depending on the strength of the storm, the airborne debris will be a threat not only to Petitioner, but also to his neighbors. Therefore, it is found that the existing construction for the eastern deck does not minimize the potential for wind and waterborne missiles during a storm, and it thus violates Rule 62B-33.005(4)(e), Florida Administrative Code, as alleged in the proposed agency action denying in part the permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's application for an after-the-fact amended CCCL permit to construct an expanded eastern deck with a tiki hut and sun deck on his property at 5917 South Atlantic Avenue, New Smyrna Beach, Florida, and approving the application for the structures previously authorized by the Department in its Final Order issued on April 24, 1997. DONE AND ENTERED this 11th day of May, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1998. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Thomas H. Dale, Esquire Post Office Box 14 Orlando, Florida 32802 Thomas I. Mayton, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue At issue is whether a moratorium, adopted by the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees), constitutes an invalid rule. If the moratorium on authorizations for use of sovereignty, submerged land in connection with development of current unbridged, undeveloped coastal islands is determined to constitute a rule, the secondary issue to be resolved is whether the rule is an invalid exercise by the Board of Trustees of delegated legislative authority.
Findings Of Fact The parties stipulated at the final hearing to the facts set forth in paragraphs 1-10, below. Stipulated Facts The parties do not object to the standing of Petitioners and Intervenors for the limited purposes of this proceeding only and any subsequent appeal. On August 22, 1989, the Board of Trustees accepted a staff report on policy and programs affecting Florida's coastal islands. The Board of Trustees also approved a temporary moratorium on authorizations for use of sovereignty, submerged land that would facilitate development of currently unbridged, undeveloped coastal islands until such time as the Division of State Lands of the Department of Natural Resources (Division) could adopt a policy for such requests. On December 19, 1989, the Board of Trustees deferred consideration of an interim policy governing the use of sovereignty, submerged lands adjacent to unbridged coastal islands. On February 6, 1990, the Board of Trustees voted to again defer consideration of an interim policy governing the use of sovereignty, submerged lands adjacent to unbridged coastal islands until after the issue was reviewed at a Cabinet workshop. On May 8, 1990, the Board of Trustees extended the temporary moratorium announced on August 22, 1989, and directed staff to begin rule making on a rule to serve as interim policy until a comprehensive policy and rule governing coastal islands could be adopted. On June 12, 1990, the Board of Trustees approved a draft of proposed rules relating to the leasing of state-owned lands adjacent to undeveloped coastal islands and directed staff to notice the rules for adoption, hold a series of public hearings and return to the Board of Trustees for final action by September. The proposed rules (Rules 18-21.003 and 18-21.004, Florida Administrative Code) were noticed in the Florida Administrative Weekly on August 10, 1990, and public hearings were held in Tallahassee on September 4, 1990, Ft. Pierce on September 5, 1990, and Naples on September 6, 1990. In August, 1990, petitions were filed challenging the temporary moratorium as a nonrule rule, and the proposed rules, arguing that the Board of Trustees' actions constituted an invalid exercise of delegated legislative authority. On October 9, 1990, the Board of Trustees accepted a status report on the proposed amendments to Rules 18-21.003 and 18-21.004, Florida Administrative Code, relating to the management of unbridged coastal islands. On October 23, 1990, the Board of Trustees considered amendments to the proposed rule based on comments made at the public hearing and written comments submitted to the agency. However, prior to accepting the proposed changes the Board of Trustees approved a request by the Governor's Interagency Management Committee (IMC) for additional time to review the proposed rule amendments. The IMC considered the proposed amended rule on November 29, 1990. Public comments were taken at that meeting which resulted in the IMC recommending that further changes be made to the proposed amended rule. On December 18, 1990, the Board of Trustees approved the withdrawal of the original rule concerning development of coastal islands, authorized changes to the proposed rules and directed staff to notice for adoption the proposed rules as amended. In addition, the Board of Trustees voted to continue the temporary moratorium until the adoption of a coastal barrier island rule. Other Facts The initial moratorium applied to those coastal islands subject to direct or indirect wave, tidal and wind energies and which provide primary or secondary protection to the mainland. Further, islands were to be considered undeveloped if unbridged (not connected via bridge to another upland) and either had no docking facilities authorized by the Trustees, or overall development density consisted of less than one permanent structure per five acres of upland. On May 8, 1990, the Trustees extended and modified the prior moratorium. The effective date of the moratorium remained August 22, 1989, and the following exceptions were created: Notwithstanding the moratorium, the Board shall allow the repair or maintenance of existing utility lines that cross sovereignty submerged land, so long as such maintenance and repair do not provide for an upgrade in capacity to serve additional customers, except to maintain public safety or as ordered by the Public Service Commission. The moratorium shall not prohibit the construction of two- slip private residential docks meeting the requirements of Chapter 18-20.004(5)(b), F.A.C. Notice of the moratorium was not provided and an economic impact statement was not prepared as required by Section 120.54, Florida Statutes. Affected persons were not given a point of entry to challenge the moratorium before it became effective. The moratorium affects sovereignty submerged lands statewide and affects all applicants who seek use of such land to facilitate development of undeveloped, unbridged coastal islands. The moratorium is an agency policy statement of general applicability, which is applied and is intended to be applied with the force and effect of a rule of law. The moratorium continues in effect at the present time with general applicability to a statewide class of persons seeking use of state-owned submerged lands adjacent to unbridged, undeveloped coastal islands as defined in paragraphs 11. and 12., above.
The Issue Whether Petitioners' application for a permit to construct a dwelling in Walton County, Florida, should be approved, pursuant to Chapter 161, Florida Statutes. In January of 1984, Respondent Department of Natural Resources provisionally denied Petitioners' application for a permit pursuant to Chapter 161, Florida Statutes, to construct a dwelling on their property in Walton County seaward of the existing coastal construction control line. Petitioners requested a hearing pursuant to Section 120.57(1), alleging that the denial of their application was unlawful on constitutional grounds and that it exceeded Respondent's discretionary powers under Chapter 161. The request for hearing was referred by Respondent to the Division of Administrative Hearings, Case No. 84-0508. Thereafter, Respondent's motion to strike those aspects of the petition alleging the unconstitutionality of the proposed denial was denied on the basis that Petitioners properly may preserve such matters for any appellate review. Thereafter, Petitioners sought to amend their petition to allege the invalidity of certain of Respondent's rules and, although such petition was granted, Petitioners were informed that any administrative determination of the invalidity of rules must be made the subject of a separate petition filed with the Director of the Division of Administrative Hearings. On June 11, 1984, Petitioners filed a petition with the Division challenging the validity of certain of Respondent's rules which were cited by Respondent as the basis for the proposed denial of Petitioners' application for a permit. The petition alleged that said rules were not appropriate to the ends specified in Section 161.053, Florida Statutes, that the effect of the rules was to establish a class of property owners who could be excluded from receiving permits to construct dwellings seaward of the coastal construction control line merely because their lots or parcels of land are larger than their neighbors or other adjacent owners, and that such rules are arbitrary and capricious as they relate to the petitioners because other property owners in Walton County had been permitted by Respondent to construct dwellings similar to hat proposed by the Petitioners beyond the coastal construction control line. DOAH Case No. 84-0508 and the case involving the rule challenge, DOAH Case No. 84-2053R, were consolidated for purposes of hearing. At the hearing, Petitioners presented the testimony of Brett Moore, a coastal engineer employed by the DNR Division of Beaches and Shores, Dennis Evans, an architect, and Petitioner Edward S. Coley. Petitioner submitted ten exhibits in evidence Respondent presented the testimony of Brett Moore, Deborah Flack, Director of the Division of Beaches and Shores, and Ralph Clark, Chief of the Bureau of Coastal Engineering and Regulation. Respondent submitted 21 exhibits in evidence. Posthearing submissions submitted by the parties in the form of Proposed Recommended Orders have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact In 1981 Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley, Petitioners' Exhibit 1, Respondent's Exhibit 1). At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20). On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984, that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area. . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised Petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16). The height of the dune line on Petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under dead covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to come extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8). Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21). Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10). Although conflicting evidence was received as to whether or not the existing structures east of petitioners' lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioners' Exhibit 1). Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2). The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4).
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.
Findings Of Fact On December 12, 1988, Petitioners filed an application with Respondent for a permit to construct improvements to real property seaward of the coastal construction control line (CCCL). Petitioners' property is located at 2400 North Atlantic Boulevard, Fort Lauderdale, Florida. The parcel of land owned by Petitioners measures approximately 50' in width and 140' in depth and is located in a primarily residential area of beachfront property with high property values. On this parcel is a residence that is approximately 1600 square feet in size. The residence is constructed on reinforced concrete pilings. There are many other residential and commercial structures in this area which are also constructed on reinforced concrete pilings. The improvements to this property seaward of the CCCL that Petitioners desire to make and that Respondent finds objectionable is the construction of a poured monolithic reinforced concrete slab patio supported by twenty-one reinforced concrete pilings. The patio would be approximately 27' by 50' in size. On November 17, 1987, Respondent approved an application filed by a previous owner of this property for the construction of a patio to be constructed with concrete pavers. Petitioners arranged to have the previously approved permit transferred to their name. The project contemplated by the subject application employs a different method of construction than the one permitted in 1987 because Petitioners desire to have a patio that is more attractive and is easier to maintain. Petitioners are also concerned that concrete pavers will be hazardous during a storm since they may be subject to being swept along by high winds and water. Petitioners have valid reasons for preferring the method of construction reflected by the subject application based on aesthetic and maintenance considerations. However, Petitioners did not establish that the proposed method of construction was necessary as a safety measure. To the contrary, the greater weight of the evidence was that blocks the size of the pavers to be used for the construction that has been permitted would not be propelled by either hydrodynamic or aerodynamic forces during a major storm as Petitioners contend. Instead, these blocks would likely be undermined during a major storm and, because of their weight, fall as the beach is eroded. Respondent has regulatory authority over the property in question. Respondent's regulatory authority, which includes rule making authority, is conferred by statute. Respondent's responsibilities include the preservation of the beach-dune area within its jurisdiction. There is a relationship between the siting of a structure, in terms of its proximity to the shoreline, and the likelihood that the structure will have an impact on the beach and dune systems. The subject patio is to be located within the beach-dune system. The patio Petitioners propose to construct on concrete pilings would have more of an adverse impact on the beach-dune system than a patio constructed of concrete pavers. During a major storm, greater erosion on the site around the pilings will occur as a result of scour. Following a major storm, the ability of a dune to re-form will be more inhibited if the patio is supported by pilings. Considering the hundreds of thousands of pilings that are already in place along the beach, the effect of the twenty-one pilings proposed by Petitioners, whether considered individually or cumulatively, will be insignificant. A patio is usually considered by Respondent to be a "minor structure". "Minor structures" are non-habitable structures that are generally designed to be expendable during a major storm event. Dune walkovers, viewing platforms, and decks are examples of minor structures. A patio constructed of concrete pavers would be another example. The nature of their construction permits minor structures to be placed more closely to the shoreline than major structures. The patio as proposed Petitioners has been properly categorized by Respondent as being a "major structure" since it is designed to withstand a major storm event. Respondent has not to date permitted any major structure as far east of the CCCL in this area of Broward County as Petitioner's proposed project. All major structures constructed on pilings that are that far east of the CCCL were built before permits were required. Respondent is concerned that the granting of the subject permit will set a precedent that will require the issuance of permits for the construction of other major structures as far seaward of the CCCL as the Petitioners' proposed project, and that such construction would result in a cumulative adverse impact on the beach-dune system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a final order which denies the subject permit. DONE AND ENTERED this 20th day of September, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact in paragraphs 1-6 and 8-10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraph 8 are rejected as being argument. The proposed findings of fact in the first sentence of paragraph 11 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 11 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in the third sentence of paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 13 are rejected as being conclusions of law that are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are rejected as being unsubstantiated by the evidence. While Petitioners' application included as a proposed condition to the issuance of the permit, a covenant running with the land that would require the property owner to reconstruct the beach-dune system in the event of destruction by a major storm, the evidence did not establish, as Petitioners proposed, that the covenant would "... protect the interests of DNR and its long term end of protecting the dunes and beaches". The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-2, 5-6, 10-16, 24-27, 30-31, and 33 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraphs 3 and 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 21 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 7-9 and 28-29 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraphs 17-20, 23, and 32 are rejected as being unnecessary to the conclusions reached. These proposed findings are incorporated in part as conclusions of law. The proposed findings of fact in paragraph 22 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made. COPIES FURNISHED: Kenneth G. Stevens 412 Northeast Fourth Street Fort Lauderdale, Florida 33301 Dana M. Wiehle, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Room 1003 Tallahassee, Florida 32399-3000 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ken Plante General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether a beach house petitioners plan to build in south Walton County was already under construction, within the meaning of Section 161.053(7), Florida Statutes (1981) and Rule 16B-33.04(1), Florida Administrative Code, at the time the current coastal construction control line took effect there.
Findings Of Fact In October of 1982, the petitioners acquired a lot in south Walton County, on the north shore of the Gulf of Mexico. Even before the purchase, Mr. Wiese had been in touch with respondent's personnel, who apprised him of the imminence of the adoption of the new (now current) coastal construction control line, at that time already proposed for Walton County. The former coastal construction control line was considerably seaward of the current line, which became effective on December 29, 1982. Petitioners, who have built some seven houses, drew plans for a house to be built on their Walton County lot one foot landward of the old coastal construction control line. They applied for and obtained the necessary county building permit. They contracted for grading on site, which took place on November 27, 1982. In the course of this work, the landward face of the sand dune was disturbed and petitioners realized that, if they were to build so close to the water, a wall or something like a wall would have to be erected and buttressed to keep the sand dune from migrating under or into their beach house. They determined that the plans were inadequate as drawn. Mr. Wiese nevertheless arranged for one Al Christopher to bring two poles to the site and place one of them upright in the sand. When asked at hearing how long the two poles Mr. Christopher delivered to the site were, Mr. Wiese said he did not know. After Mr. Christopher began, petitioners did not ask him to desist either with bringing pilings to the site or with placing them in the ground. Mr. Christopher evidently did what he was asked to do, before he ever began working with the poles. Before the single pile was placed, batter boards were used to locate the perimeters planned for the building. Batter boards are temporary markers which are removed once the foundation is in place. In constructing piling foundations for beach houses along the gulf coast, in this part of Florida if not elsewhere, the ordinary sequence is to bring all foundation piles to the site before bringing the equipment necessary to install all the piles at once. This makes for efficient use of expensive machinery, and is virtually always done. One of the Wieses' neighbors, fearing that the new coastal construction control line would take effect last fall arranged for a single pile to be driven, but his project was well underway by the time the new coastal construction control line did in fact take effect. As late as March of this year, Mr. Wiese checked with a Texas supplier to see if foundation piles would be available for the project. The plans drawn before the grading of November 27, 1982, called for a foundation of 37 piles, each of which was to be 45 feet long. No horizontal members nor bracing of any kind was contemplated for the foundation. The foundation piles were to be put so close together that it would have been impractical to bring heavy equipment in to do the grading after they were in place. The idea in leveling the ground was to prepare it so a concrete slab could be poured to serve as a parking surface underneath the beach house. Under both the plans originally drawn and the plans under which petitioners now hope to proceed the parking surface itself is not expected to have a structural function, Mr. Wiese's testimony to the contrary notwithstanding. Once petitioners were persuaded that the project needed "reengineering," they diligently sought out expert assistance and new foundation plans were eventually drawn to their satisfaction. Petitioners' efforts took place on a regular, if not a daily basis, but consisted in large part of finding the right people for the "reengineering" job. The plans which petitioners propose to use were stamped with the final engineer's seal on March 3, 1983, more than two months after the current coastal construction control line took effect.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioners' beach house project grandfathered status, and apply the coastal construction control line adopted for Walton County on December 29, 1982, in any agency action regarding the project. DONE and ENTERED this 22nd day of August, 1983, Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August 1983. COPIES FURNISHED: Joseph C. Jacobs, Esquire John C. Pelham, Esquire and Melissa Fletcher Allaman, Esquire ERVIN, VARN, ODOM & KITCHEN Post Office Box 1770 Tallahassee, Florida 32322-1170 Deborah A. Getzoff, Esquire Suite 1003 Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Executive Suite 3900 Commonwealth Building Tallahassee, Florida 32303
The Issue The issues for determination at final hearing were (1) whether Petitioner's coastal construction Permit No. 86-155PB, authorizing Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Palm Beach County, Florida, should be extended under Special Permit Condition 10 of the Permit and (2) whether the experimental reef structure should be removed pursuant to Special Permit Conditions 3 and 12 of the Permit.
Findings Of Fact On April 6, 1987, American Coastal Engineering, on behalf of Willis H. DuPont (Petitioner) and Florida Atlantic University's Department of Ocean Engineering, was granted coastal construction Permit NO. 86-155PB 3/ (Permit) by the Department of Natural Resources (Respondent). 4/ The Permit authorized Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Florida. The experimental reef structure, referred to as a prefabricated erosion prevention reef (PEP reef), is a 550 foot submerged breakwater which was constructed using prefabricated concrete segments, placed end-to-end underwater in the nearshore area. The purpose of the PEP reef is to reduce erosion of the beach landward of the structure. The PEP reef was installed on May 5, 1988. Special conditions were placed on the Permit, to which Petitioner agreed. The special conditions in pertinent part provide: The permittee shall adjust, alter or remove any structure or other physical evidence of the work or activity permitted, as directed by the Executive Director, if in the opinion of the Executive Director, the structure, work or activity in question results in damage to surrounding property or otherwise proves to be undersirable or becomes unnecessary. Adjustment, alteration, or removal required under this provision, shall be accomplished by the permittee at no cost to the State of Florida. * * * 10. The proposed submerged breakwater shall be removed within two years following installation of the experimental structure unless determined by the staff to remain in place for an extended period of time. This determination shall be based on a staff evaluation of the monitoring data, existing statutory regulations, and the feasibility of the project in concurrence with the beach management plan at that time. The experimental structure shall only remain in place after two years upon written approval from the Executive Director indicating an extension has been granted. * * * 12. The Executive Director may order removal of the experimental structure as soon as the shoreline along any portion of the area required to be nourished under Special Permit Condition 6 erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location within the area to be monitored. Petitioner requested an extension of the Permit. On July 10, 1991, Respondent issued a final order denying an extension of the Permit, pursuant to Special Permit Condition 10, and directing the Petitioner to remove the PEP reef pursuant to Special Permit Conditions 3 and 12. An extension of the Permit beyond the two years following installation of the PEP reef, according to Special Permit Condition 10, is based upon three factors: (1) an evaluation by Respondent's staff of monitoring data gathered by Petitioner, (2) statutory regulations existing at the time of the extension request, and (3) the feasibility of the project in concurrence with the beach management plan existing at the time of the extension request. Although Petitioner's monitoring data addressed the question whether the PEP reef was performing its function, it did not address existing statutory regulations or the project's feasibility in concurrence with the current beach management plan. 5/ Petitioner's monitoring data was collected over a two-year period with surveys being performed through March 1990: March 1988 (preconstruction), May 1988 (post-construction), August 1988, December 1988, February 1989, April 1989, July 1989, November 1989, and March 1990. The data was collected along 17 profile stations: seven stations were located within or immediately adjacent to the boundaries of the PEP reef, and five to the north and five to the south of the PEP reef. The data indicated that the PEP reef was an experiment and approved by Respondent as an experiment. As a conclusion, Petitioner indicates that the PEP reef is functioning for the purpose it was designed in that it is providing a benefit to the beach. Respondent disagreed with Petitioner's conclusion. For one, Respondent disagreed with the method of analysis used by Petitioner to analyze the data because Petitioner's analysis failed to filter out seasonal effects. This procedure brought into play the first of the three factors in Special Permit Condition 10 which was used for denial of the Permit extension. Petitioner's monitoring data was utilized and analyzed by Respondent. Using the data gathered, Respondent created profile plots which are cross sectional depictions of the shoreline profiles and which displayed changes to the shoreline occurring during the survey period. Respondent used a shoreline change analysis in determining the PEP reef's effect on the shoreline in its vicinity. The analysis focused on the net change in the shoreline, i.e., the net change in the location of the mean high water line, factoring out the seasonal variations which occur along the coast by comparing profile plots from the same time of year taken during the two-year monitoring period. The shoreline change analysis indicated that in the vicinity of the PEP reef the shoreline showed irregular periods of both accretion and erosion. However, the shoreline did not reflect the typical pattern that was expected with a functioning breakwater. To the contrary, the irregular periods of accretion and erosion and the irregular configuration of the shoreline indicated that factors other than the PEP reef were affecting the shoreline. One such intervening factor was attributed to the large number of existing shoreline structures called groins which are scattered throughout the area. Groins are structures intended to stabilize the shoreline by blocking the down drift movement of sand, thereby altering the natural coastal processes. The monitoring data shows that, in terms of accretion or erosion, the PEP reef produced no recognizable influence on the shoreline in its vicinity. As to the second factor in Special Permit Condition 10, at the time the Permit was granted in 1988, no regulations specifically applicable to experimental structures existed. However, in 1989 a provision specifically addressing the permitting of experimental structures became law. /6 The provision provides that the "intent" of the Florida Legislature is to "encourage the development of new and innovative methods for dealing with the coastal shoreline erosion problem," and that, in authorizing the "construction of pilot projects using alternative coastal shoreline erosion control methods," the Respondent must determine, among other things, that "the proposed project site is properly suited for analysis of the results of the proposed activity." Groins in the PEP reef area alter the natural coastal processes and, therefore, play a significant role in the analysis of the shoreline processes. The effect of the groins affected the Respondent's ability to determine the effectiveness of the experimental structure. As a result, the Respondent was unable to make a determination in accordance with the legislative mandate. As to the third factor in Special Permit Condition 10, Petitioner presented no evidence addressing this factor. Petitioner has failed to show that the experimental structure, the PEP reef, has satisfied Special Permit Condition 10. It has failed to show that the intended purpose of the PEP reef has been accomplished, i.e., that the PEP reef is effective or beneficial. In denying Petitioner's request for an extension of the Permit, Respondent directed removal of the PEP reef pursuant to Special Permit Conditions 3 and 12. Special Permit Condition 3 provides for removal, alteration or adjustment of the PEP reef if it "proves to be undersirable or becomes unnecessary." The construction of the PEP reef consisted of, among other things, the placing of individual reef units end-to-end. To alert boaters to the location of the PEP reef, a buoy was placed at each end of the structure. The stability of the PEP reef is questionable. In 1989 a storm dislodged the individual units. In an effort to prevent sliding, Petitioner attempted to realign the units to their original position and added more weight to the units. Despite Petitioner's efforts to stabilize the structure, the PEP reef has experienced continued movement. Furthermore, because of the continued movement, boaters' safety would be compromised in that the buoys would be ineffective in warning them of the location of any units which may be dislodged. Also, the additional weight to the units could cause the individual units to settle, potentially affecting the performance of the PEP reef, and could induce erosional scour around the structure itself. Special Permit Condition 12 provides for removal when "the shoreline along any portion of the area required to be nourished . . . erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location." The shoreline analysis showed that the shoreline in many portions of the nourished area eroded landward of the pre-nourished beach profile. The mean high water line had positioned landward of its pre-project location. Petitioner has failed to show that the PEP reef does not fall within the conditions of Special Permit Conditions 3 and 12. Federally protected and endangered marine species have attached themselves to and/or now reside in the PEP reef, complicating the removal of the PEP reef. In order not to disturb or disrupt this marine life, Respondent has expressed a desire in relocating the structure to a position further offshore.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources 7/ enter a final order DENYING an extension of Permit No. 86-155PB. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of April 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April 1994.
