The Issue The issues are whether Respondents dredged and filled within wetlands and surface waters without a permit and, if so, what penalty and corrective action should be imposed.
Findings Of Fact The Trust owns the Property, and Freeman is the sole trustee of Trust and its sole beneficiary. The Property, which is located in Lake County, abuts Lake Nettie, a 45-acre lake with no outlet, under ordinary water conditions. A portion of the Property occupies wetlands and surface waters of Lake Nettie. Much of the upland abutting the lake in the vicinity of the Property is developed, although no other seawalls are visible. The shoreline in the vicinity of the Property is not heavily developed, but it bears clear signs of maintenance to control the growth of vegetation in the sandy beach. Sometime after October 29, 2003, Freeman's late mother purchased the Property, on which is located a single-family home. At the time, the Property did not have a dock or seawall. Shortly after Ms. Freeman acquired the Property, Freeman, an accountant, or his mother hired a contractor to build a dock. The dock was constructed in early 2004. Because it did not exceed 1000 square feet over water, this activity qualified for a noticed general permit, under Florida Administrative Code Rule 62-341.475(1)(a), although the record does not reveal whether Ms. Freeman provided the notice required for this activity. Nothing in the record suggests that the construction of the dock altered the pattern of limited vegetation of the Property waterward of the wetlands line. However, nothing in the record suggests that erosion, siltation, or turbidity has been a problem at the waterward end of the Property. The only evidence touching on the issue of drainage into the lake is that, in the vicinity of the Property, runoff enters the lake by sheetflow. In 2007, by which time title to the Property had passed to the Trust, Freeman sought to add a roof to the dock that his mother had had constructed. Finding that the contractor who had built the dock was no longer in business, Freeman obtained the required local building permit and did the work himself. Shortly after completing this job, Freeman constructed the seawall, obtaining the fill from a neighbor who was excavating a basement. In connection with this dispute, Petitioner has established a wetlands line on the Property. The wetlands line is amply supported by the evidence, including careful analysis by Petitioner's representatives of the vegetation and soils, as well as hydrologic indicators, such as algal mats, that are present on the Property within the area of the Seawall Project. Based on this wetlands line, the Seawall Project is in the wetlands, so that the construction of the project constituted dredging and filling of wetlands. The waterward face of the seawall is entirely in wetlands, as are the return walls that run upland from the seawall face and the fill placed upland of the seawall face. DEP Exhibit 11, which is incorporated by reference herein, accurately depicts the wetlands line on the Property. There is some confusion in Petitioner's pleadings between the surface area of wetlands that Freeman filled and the amount of fill. The surface area of disturbed wetlands is about 500 square feet. According to Freeman, whose testimony is credited, the amount of fill was about what would be contained in a small dump truck, so it might be in the neighborhood of five cubic yards. In the NOV, Petitioner describes the corrective action that it is imposing on Respondents. Within 45 days of the NOV, "Respondent" would be required to conduct certain preliminary activities and then: 1) remove the seawall and all associated fill waterward of the wetland line; 2) place the removed fill in a contained upland location where it will not discharge into wetlands or surface waters; 3) during and after regrading, stabilize with vegetation all slopes adjacent to the restored area as soon as possible (not more than 72 hours after attaining final grade) to prevent erosion, siltation, or turbid runoff into the wetlands and surface waters; remove nuisance and exotic vegetation prior to planting; replant the restoration area with listed wetland species on three-foot centers within elevation- based zones depicted on an attached drawing; plant healthy, nursery-grown stock from a state-licensed nursery; provide receipts for all plants used in the restoration area; monitor the restoration area at four-month intervals until the restoration area contains less than ten percent coverage of nuisance and exotic species and 80 percent of the plantings have survived for at least one year and are viable, reproducing plants; submit monitoring reports to Petitioner; and allow Petitioner's representatives access to the Property at reasonable times to determine compliance with the NOV conditions. Petitioner does not seek corrective action for the addition of the roof to the dock, which resulted in the addition of about 216 square feet to the original, 1000 square-foot dock. Presumably, this decision acknowledges the relative ease of obtaining a standard general permit for a dock of no more than 2000 square feet serving a single-family home under Florida Administrative Code Rule 62-341.427(1)(a)2. For this reason, the violation arising out of the Dock Project is relatively minor. The corrective actions focus on the seawall because the violation arising out of the Seawall Project is more significant. Under Florida Administrative Code Rule 62-341.475(1)(c), this activity involved 400 square feet more than the 100 square feet of dredging and filling that is allowed as a "minor system" under a noticed general permit. An individual environmental resource permit would be required for this project, and there is no reason to assume that Respondents would be able to obtain such a permit. Corrective action is therefore necessary in the form of the removal of the entire Seawall Project, including all of the fill, and the restoration of the pre-project grade. The question concerning corrective action is the extent of Respondents' liability for undertaking the planting scheme outlined above in the NOV. The record fails to establish the restorative nature of this activity because, immediately before the commencement of the Seawall Project, the shoreline in the impacted area was unvegetated. If Respondents had applied for permits for these two activities, Petitioner would have charged the fee for the proposed activity that carried the higher fee, which is the Seawall Project. The application fee would have been $600. By not applying for and obtaining this permit, Respondents wrongly obtained an economic benefit of $600. The fact that Respondents will only be allowed to keep the product of the Dock Project suggests that the final economic benefit should be based on the reduced fee associated with this activity, but, for reasons stated in the Conclusions of Law, this point is irrelevant because Petitioner is not authorized to recover either application fee in this case. Two of Petitioner's representatives testified as to the cost of their investigatory services in this case. Based on the total hours expended, at their respective hourly rates, without regard to any fringe benefits, the cost of the investigation is about $1700, but, for the reasons stated in the Conclusions of Law, this fact is also irrelevant because Petitioner is not authorized to recover these costs in this case.
The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner against the Respondent are correct and if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida licensed professional engineer, holding license number PE 45941. There have been no prior disciplinary proceedings against the Respondent. The Respondent acted as the general contractor in the construction of his personal residence, which is the structure at issue in this proceeding. There is no evidence that the structure, as built, fails to meet applicable standards and requirements. On December 16, 1999, the Respondent submitted to the City of Clearwater Building Department, 29 sheets of building plans for alterations to the Respondent's residence. Of the 29 sheets, three were apparently signed and sealed by an engineer identified as Shields E. Clark, P.E., who did not testify at the hearing. Nineteen of the 29 sheets contain the statement, "[a] windload review of this plan has been made by Shields E. Clark, P.E. and it is certified to be in compliance with Section 1606 of the Standard Building Code 1994." The plans apparently confused the Clearwater Building Department official who reviewed the material. He asked the Respondent to meet with him and explain the project. The meeting occurred on or about January 10, 2000. During the meeting, the Respondent signed and sealed 22 of the 29 sheets; afterwards, the reviewing official noted they were unsigned. Four sheets of the initial plans were not signed and sealed by anyone. The Clearwater Building Department relies on the engineering certification in determining whether plans should be approved. The Respondent signed and sealed the plans as a professional engineer and the plans were approved. As to all of the plans submitted by the Respondent to the Clearwater Building Department, the Petitioner presented the expert testimony of James Owen Power, a Florida licensed engineer. Mr. Power's testimony was persuasive and is credited. (Sheet numbers identified herein reference the page numbers in Joint Exhibit 1.) According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on December 16, 1999. The deficiencies noted by Mr. Power include: the failure to specify which of two methods was used in calculating compliance with Southern Building Code windload requirements; depiction of a three-foot overhang projection on sheet 12 which is not depicted on other pages in the same plans; lack of a footing under a center post (sheet 19); lack of a beam at the center post to indicate what is being supported (sheet 21); inadequate support of the center post (sheet 22); a failure to provide for transfer of a portion of the roof load to an appropriate support (sheet 22); inadequate support for the load being carried (sheet 23); and depiction of a sample wall section atypical of all conditions throughout the proposed construction. On March 15, 2000, the Respondent submitted a 22-page set of drawings to the Clearwater Building Department that appear to have been signed and sealed by the Respondent on March 14, 2000. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on March 15, 2000. The deficiencies noted by Mr. Power include: the failure to indicate whether differences in foundation, floor and roof framing, between the initial plan submission and the March 15 submission, were to be regarded as substituted plans or changes to the initial plans; the failure on five sheets to refer to windload certification; the failure to correlate position of cross beams to posts (sheet 43); differing numbers and locations of cross beams within the plan submission (sheets 43 and 44); a cantilevered wall that is identified without appropriate detailing; omission on sheet 45 of a "transverse" beam depicted on sheet 44; depiction of a wall not previously shown and two previously un-shown beams over the garage door (sheet 46); the appearance of a previously un-shown and unspecified pipe column in the middle of the garage opening (sheet 46); the lack of proper identification of a post and partition depicted on the column view (sheet 47); inconsistent identification of the dimensions of a balcony overhang (sheets 43, 49 and 52); and alteration of original rafter sizes without notice of the change (sheet 63). On March 28, 2000, the Respondent submitted an 11-page set of drawings and two sheets of cost estimates to the Clearwater Building Department that appear to have been signed and sealed by the Respondent on March 28, 2000. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on March 28, 2000. The deficiencies noted by Mr. Power include: omission of a footing and pipe column depicted in the second set of plans without notification of change (sheet 31); the inability to determine the intent of "back addition lower plan" (sheet 32); alteration of the notation of a wall from the second set of plans (sheet 33); inconsistent depiction of the new wall foundation at the left side of the structure (sheet 33); inconsistent identification of the footing at the center of the garage opening (sheets 31, 33, and 34); inconsistent depiction of footers (sheets 34 and 35); inconsistent depiction of columns and beams (sheets 33, 34 and 35); and alteration in the manner of depicting partitions within the structure from the depiction contained in the initial submission (sheet 37). On June 12, 2000, the Respondent submitted another 11- page set of plans to the Clearwater Building Department that appear to have been signed and sealed by the Respondent on March 28, 2000. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on June 12, 2000. The deficiencies noted by Mr. Power include: identification of beams as "optional" without defining the requirements of either option (sheets 64 and 65); depiction of knee braces not previously identified in previous plans (sheet 65); inconsistent depiction of partitions (sheets 65 and 69); alteration of wall width from second plan submission without adequate notification of change (sheets 49 and 66); depiction of knee braces without proper consideration of lateral load (sheet 66); depiction of a diagonal structure the intent of which is unclear (sheet 68); inconsistent depiction of a center joist (sheets 38 and 69); alteration to the previous depiction of rafters without notification (sheet 67); deletion of footing and a column in the center of the garage opening without notification (sheets 68 and 70); and the addition of a door to the left of the garage opening without notification of change from prior submissions. The Respondent's building plan submissions fail to meet professional standards. Structural elements were added, altered, and deleted without appropriate notification, and within submissions, elements were inconsistently depicted. The Respondent's failure to meet professional standards resulted in building plans that were ambiguous and unclear.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a final order reprimanding Phillip J. Matonte, P.E., for negligence in this matter, and placing him on probation for a period of two years. DONE AND ENTERED this 11th day of April, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2002. COPIES FURNISHED: Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 J. Robert Griffin, Esquire Tilton & Metzger, P.A. 1435 East Piedmont Drive, Suite 210 Tallahassee, Florida 32308 Natalie A. Lowe, Executive Director Florida Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Appellant was wrongfully denied a variance of 21.33 feet to construct a second floor deck at 673 Bay Esplanade, Five Palms Motel Condo, Clearwater, Florida.
Findings Of Fact John Shaw, a resident of Massachusetts, purchased the condominium for which the variance is here requested in December, 1988 without first visiting the property or inquiring about zoning restrictions. The unit purchased is on the second floor of a two story building earlier converted from a hotel or motel into condominiums. The seller told Shaw he could construct a deck over the existing deck on the ground floor condominium below the unit purchased by Shaw. While the construction of this deck was in progress it was discovered no permit had been pulled for the project and the work was stopped. The subsequent application for a permit was denied because the proposed deck encroached some 21.33 feet into the setback area. The application for a variance was denied by the Clearwater Development Code Adjustment Board and this appeal followed. The two buildings comprising this complex were erected many years ago and are non-conforming, i.e., the buildings themselves violate the current Development Code. An existing deck extending into the setback area was constructed on the unit directly below the condominium purchased by Shaw and a similar deck extending to the seawall was constructed on an adjacent building. No permits are on file for those decks. Construction of the proposed deck would improve the livability of the condominium greatly by expanding the area usable for looking seaward. The condominium has been used without this deck for many years. This property is zoned CR-24 and the setback requirement is 25 feet from the water's edge.
Findings Of Fact By Joint Application for Works in the Waters of Florida filed January 14, 1993, Richard and Claudia Cowart requested permission to construct a concrete seawall with sloping riprap along their property, which is bordered by the Caloosahatchee River. The application describes the length of the seawall as 130 feet. The application describes the length of the riprap as "up to 130 [feet]" and the width of the riprap as five feet. The application states that the Cowarts are the record owner of the property and that Brian Bevan is an owner of adjacent property. There are seawalls for some distance on both sides of the proposed seawall, including along the property of Mr. Bevan. The seawall on the side opposite that of Mr. Bevan is indicated on the drawing accompanying the application. The drawing attached to the application depicts an existing retaining wall waterward of the approximate mean high water line and the proposed seawall landward of the approximate mean high water line. The proposed seawall would travel parallel to the river's shoreline for a distance of about 130 feet. At both ends, the wall turns away from the river and runs an additional 25-30 feet perpendicular to the river. At the southerly end of the proposed seawall, the drawing also indicates a "wetland enhancement area" where 100 one-gallon red mangrove trees would be planted. A second drawing attached to the application consists of a cross- section of the proposed activity. The cross-section drawing depicts, among other things, the riprap to be placed waterward of the proposed seawall, which is perpendicular to the surface of the water. The proposed riprap has no discontinuities. By letter to the Cowarts dated January 20, 1993, the Department of Environmental Regulation (DEP) stated that it found that the proposed activity was exempt from the need for a wetland resource permit, pursuant to Rule 17- 312.050(1)(t), Florida Administrative Code. Within a couple of months after issuance of the letter, the Cowarts constructed a seawall. Petitioners challenged the determination by filing a petition on February 4, 1993. The proposed seawall would not violate existing water quality standards, impede navigation, or adversely affect flood control.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of the Bevans and declining to award attorneys' fees and costs against them or any of them. ENTERED on October 28, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on October 28, 1994. APPENDIX Rulings on Petitioners' Proposed Findings Petitioners filed a proposed recommended order without proposed findings of fact. To the extent that anything in the proposed recommended order may be construed to be a proposed finding of fact, it is rejected as irrelevant or unsupported by the appropriate weight of the evidence. Rulings on Cowarts' Proposed Findings 1-11: adopted or adopted in substance. 12: rejected as unnecessary. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 John L. Chaves, Assistant General Counsel Douglas H. McLaughlin, Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Brian Bevan 1200 Masanabo Lane Ft. Myers, FL 33919 Richard A. Lotspeich Landers & Parsons Box 271 Tallahassee, FL 32302
Findings Of Fact The Petitioner, Dr. Jack G. Nichols, is a resident of the State of Illinois. He and his parents have, for many years, owned property on Dog island, a barrier island in Franklin County, Florida. Dr. Nichols owns Lots 107 and 108 on Dog Island, and has for many years entertained plans of building a beach house on each lot, consisting of a single-family residence for himself on Lot 108 and such a house on Lot 107 for his parents. Dr. Nichols has the habit of visiting Dog island to inspect his property on his vacations and has done so from time to time prior to April, 1984. Over the years he conceived of the general type of house he wished to build and determined prior to April, 1984 to locate the houses landward of the then-existing Coastal Construction Control Line. Pursuant to Chapter 161, Florida Statutes, the Department of Natural Resources undertook to survey and delineate a new Coastal Construction Control Line for Franklin County. The location of that line is described in Rule 16B- 26.14, F.A.C. and the new jurisdictional line became effective on April 30, 1984. Dr. Nichols came to Dog Island for his vacation in April, 1984, at which time he learned for the first time that the Department of Natural Resources had adopted the new Coastal Construction Control Line. After hearing of this new jurisdictional boundary from other property owners on the island, he sought to determine how that newly-defined boundary would affect his property and his plans for constructing a beach house. He observed aerial photographs depicting the Coastal Construction Control Line which would take effect April 30, 1984. He determined that the sites he had selected for the houses on his lots would be seaward of the new control line, as opposed to the preexisting line which he had taken into account in selecting his original home site. He also learned that if the houses he envisioned were under construction upon the effective date of the new Coastal Construction Control Line then he would be able to proceed with their construction without having to obtain a permit from the Department of Natural Resources. The Petitioner had not originally intended to construct the houses on his lots as early as April, 1984, but he became concerned that if he did not commence construction prior to the effective date of the new control line, he would not be able to place the houses at the location he had previously planned for. Thus, he took steps to retain a contractor and commence construction immediately. The Petitioner contacted Mr. William A. Shults, a contractor with experience building in the coastal areas of Franklin County. Mr. Shults was available and able to undertake construction activities and the two parties entered into a contract calling for construction of a beach house for both lots on approximately April 20, 1984. Mr. Shults immediately had necessary engineering work accomplished, had plans drafted for the structures and retained a construction crew. He cleared sufficient area on both lots to accommodate the residences and thereafter, on April 26, obtained a building permit for the structures. Materials were delivered to the island by landing craft on April 26 and 27, 1984. Mr. Shults also had a truck equipped with an auger or drilling equipment transported to the island and placed on the job site on or before April 27, 1984. The plans called for construction of the houses with a piling or pole foundation, so that the houses would be constructed above the specified flood levels. The poles and other materials necessary for construction of the foundation had all been delivered by April 27, 1984. The foundation lines were marked, the corner "batter boards" placed and other minor site preparation accomplished. The holes for the piling were to have been drilled on Saturday, April 28 but the trucks with the auger machine aboard, suffered a broken axle prior to its being positioned on Dr. Nichols' lots so that it was impossible to get the auger machine to the lots on April 28 or 29. Mr. Shults and his crew attempted to pull the truck to the site, but the difficulty of the terrain rendered that impossible. There was one other piece of auger equipment on the island, but its owner was engaged in construction activity with it at the time. That person agreed to bring his machine to the site on April 29 and begin augering and placing the poles for the pilings. His work became behind schedule however, and his machine was still involved in construction activity at his own site and could not be brought to Petitioner's site on that day. Mr. Shults, upon learning that the augering machine would not be available when needed, began commencing hand-digging of the pilings with post hole diggers on April 29. This method was a slow and laborious process because the holes had to be excavated much deeper than the length of the post-hole diggers. As a result, when the hole was dug as deep as the post-hole digger could reach from the surface of the ground, a hole had to be dug alongside the piling foundation hole so that a crew member could stand down in that hole and thus dig the piling hole deeper, handing the post-hole diggers with each load of dirt up to another crew member on the surface to dump, who would then hand the post-hole diggers back to the lower-placed crew member. This made the process of digging the foundation piling holes much slower than the use of the auger equipment. In this manner, however, Shults succeeded in digging four foundation holes on Lot 105. At that point, the augering machine arrived on the site and four piling holes were dug and the pertinent poles placed in them on Lot 107 as well. Throughout this construction process, Mr. Shults' crew was working on both foundations at one time. This allowed for less costly construction due to the efficiency of undertaking the same kind of work on two structures with the same crew at the same time. Since the two lots and construction sites adjoined each other, one crew could efficiently be used for both construction sites in an economic fashion. On April 30, Shults' construction crew proceeded to work on the structure on Lot 108 to further secure and place foundation posts. The four pilings placed in the holes on Lot 107 the day before remained in place. The construction crew and most of its equipment, and most construction work, was proceeding on Lot 108 merely because of the order of Mr. Shults to his crew to finish placing the foundation posts on that lot first, on that day. During the morning of that day, representatives of the Department arrived on the site and advised Mr. Shults that the construction activities appeared to be illegal and seaward of the Coastal Construction Control Line. They advised him that any further activity of that type would be undertaken at his and the lot owner's risk and expense. Mr. Shults thus ceased activities on both lots for a time, but during the following week, after discussing the dispute with certain Department employees, arrived at the opinion that the owner's construction activities had achieved grandfather status and that no permit from the Department would be required. He thus undertook to finish placing the foundation pilings on both lots. All the foundation pilings were installed on both lots by the end of the second week of May, 1984. Mr. Shults then contacted Dr. Nichols by telephone in Illinois informing him about the progress of the job, including the height of the piling. During this conversation Dr. Nichols became concerned that the pilings on Lot 107 did not project above the surface of the ground as far as he had anticipated, thus obstructing his view of the Gulf of Mexico from the beach house which would be constructed on top of the pilings. The view would be obstructed by the existing sand dune which Dr. Nichols had not wanted to disturb, hence locating his house in the more landward position at issue. In order to provide the desired view of the Gulf over the intervening sand dune, Dr. Nichols instructed Mr. Shults to replace the existing pilings on Lot 107 with longer ones. Mr. Shults purchased new pilings, had them delivered to the site, removed the original poles and installed the new ones in their place in the same holes, including the four holes that were dug prior to the effective date of the Coastal Construction Control Line. Dr. Nichols and Mr. Shults established that the original poles had been placed with the intention that they would be the permanent foundation for the house and no decision was contemplated nor made concerning their removal and replacement with the longer poles until after the foundation was fully constructed. In any event, by its letter of May 21, 1984, advising Dr. Nichols of the alleged violation of the Coastal Construction Control Line, the Department made a "free-form" determination that the construction activities on Lot 107 before April 30, 1984, were not sufficient to confer "grandfathered" status and that the activities were illegal unless a permit was obtained. The subject petition was filed and this proceeding ensued. It is true that Dr. Nichols' original intent was not to commence construction of the beach houses as soon as he did in April, 1984 and that he only began construction at that earlier time when he learned of the impending effective date of the new Coastal Construction Control Line which would require him to obtain a permit before constructing the houses at the sites he had previously selected. However, it is equally true that Dr. Nichols' bona fide intention when he retained Mr. Shults to commence construction was to not merely clear the site and place pilings and then construct the houses at some indefinite later time, but rather to commence construction and pursue construction activities on an ongoing, uninterrupted basis through to completion of both houses on both lots. If the Department had not intervened with its letter to the effect that the Petitioner might be in violation of the Coastal Construction Control Line, construction activities on Lot 107 would have continued to completion in an uninterrupted fashion. Prior to the effective date of the Department's Coastal Construction Control Line, the Petitioner's construction activity, involving the excavation for and placing of the foundation pilings for the residence to be on Lot 107, was undertaken and engaged in a continuous, uninterrupted fashion. The decision to remove the original pilings and replace them with longer poles was not envisioned, intended or made prior to the completion of the entire pole foundation for the house on Lot 107 in the first or second week of May. It was only at this time, when the poles were all installed, that it was determined by the owner and Mr. Shults that the original pilings were not long enough to confer a sufficient view of the Gulf from the house to be constructed on top of them. Thus, the removal of the original pilings and the replacement of them with longer poles in the same holes the original pilings had been installed in, was not an interruption in the construction activities, but was rather the correction of a deficiency in the original materials. This replacement did not involve an alteration or modification of the design, extent and type of materials of the original foundation (except to the immaterial extent that the replacement poles were round instead of square). In short, the construction activity undertaken after April 20, 1984 was a good faith effort to commence construction on the house on Lot 107 and continue it to completion in an uninterrupted fashion. The parties, Dr. Nichols and Mr. Shults, intended from the beginning to use the poles first placed in that foundation as the ultimate foundation for the structure, and did not intend merely placing those original poles, which were later removed, as a subterfuge to obtain a grandfathered status for the construction activity. The construction was landward of the Coastal Construction Control Line as it existed prior to April 30, 1984.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the Department of Natural Resources enter a Final Order determining that the structure on Lot 107, Dog Island, Franklin County, Florida is not in violation of the Department of Natural Resources permitting authority. DONE and ENTERED this 25th day of September, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1985.
Findings Of Fact Petitioner, Island Developers, Ltd. (Fisher Island) a Florida limited partnership, owns the entire southwestern shore of the artificial spoil island known as Fisher Island, located between Virginia Key and the southern tip of Miami Beach, immediately south of the Port of Miami facilities, in Sections 9 and 10, Township 54 South, Range 42 East, in Dade County, Florida. See Composite Exhibit FI-20. On or about October 27, 1981, Fisher Island applied to DER for a dredge and fill permit to restore an existing sea-wall and thereby bulkhead about 2100 linear feet of the south-western shoreline of the island at a distance of 15 feet or greater from the shoreline.Fisher Island initially asked that DER approve the proposed project as exempt from the requirements for a dredge and fill permit, under the exemption contained in Section 403.813(2)(e) , Florida Statutes, and Rule 17-4.04(10)(h) Florida Administrative Code. The statute provides an exemption for the restoration of seawalls as follows: No permit under this chapter, chapter 373, or chapter 253, chapter 61-691, Laws of Florida, or chapter 25214 or chapter 25270, Laws of Florida, 1949, shall be required for activities associated with the following types of projects; however, nothing in this subsection shall relieve an applicant from any requirement to obtain permission to use or occupy lands owned by any water management district in its governmental or proprietary capacity or from complying with applicable local pollution control programs authorized under this chapter or other requirements of county and municipal governments. . . . * * * * * (e) The restoration of seawalls at their previous location or upland of, or within 1 foot waterward of, their previous locations. Section 403.813(2)(e), Florida Statutes (1981). The rule promulgated under this statute, recently renumbered by DER as Rule 17- 4.04(9)(h), Florida Administrative Code, provides the exemption for (h) The restoration of seawalls at their previous location or upland of or within (1) foot waterward of their previous location. No filling can be performed except in the above authorized restoration of the seawall. No construction shall be undertaken without necessary title or leasehold interest, especially where private and public ownership boundaries have changed as a result of natural occurrences such as accretion, reliction and natural erosion. The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than verticle [sic] seawalls. Section 17-4.04(9)(h), Florida Administrative Code (1903) References in the Petition to the current rule, formerly numbered 17- 4.O4(10)(h), are t e construed as referring to the rule now renumbered as 17- 4.04(9)(h) On May 19, 1975, the Florida Legislature adopted the statutory exemption in Section 403.513(2)(e), Florida Statutes, by enacting Section 7(2)(e) of Chapter 75-22 of the Laws of Florida (the Florida Environmental Reorganization Act of 1975), in language identical to that of the current statute, except for minor grammatical changes: No permit under chapters 373, 403, or 253, Florida Statutes, shall be required for activities associated with the following types of projects; however, nothing in this subsection shall relieve an applicant from complying with applicable local pollution control programs authorized under chapter 403, Florida Statutes, or other requirements of county and municipal governments. . . . * * * * * (e) Seawalls restored at their previous location or upland of, or within 1 foot waterward of their previous location. Section 7(2)(e), Chapter 75-22, Laws of Florida 1975. See also, 1975 Jour. Fla. Sen. 325-30 (May 19, 1975). (Exhibit FI-1 attached to this Stipulation.) The legislative history does not reveal, however, whether either the original Senate Bill No. 123 or the substitute proposed by the Government Operations Committee contained the exemption for the restoration of seawalls. The report of the Conference Committee does establish that the final version of Senate Bill No. 123 included the seawall restoration exemption, unlike the House bill on environmental reorganization See Exhibit FI-3, at 7, paragraph 6. The newly organized agency (DER) created by the "Reorganization Act soon commenced proceedings to adopt rules to implement the Act. Before adopting Rule 17-4.04 (10)(h), the Director of DER's Division Permitting (Dan Farley) sent a memorandum (see Exhibit A to the Petition, at 6-17) to district and subdistrict managers, among others, setting forth the agency's interim guidance for the interpretation of the Act's provisions for short-form projects and exemptions, including the seawall restoration exemption. Farley's memorandum interpreted Section 7(e) of the Act as follows: "Seawalls restored at their previous location or upland of or within one foot waterward of their previous location." The language in this section does not include any reference to the filling of submerged lands and states that seawalls may be replaced or restored without permit when the relocated seawall is to be upland or within one foot of the previous structure. Essentially, the seawall to be repaired or replaced must be functional in relocation one foot waterward of the previous location). Additionally, the intent of this section is not to reclaim or extend the upland, and as such, the replacement of seawalls solely to extend upland areas is not included within this section. Applications to replace seawalls waterward of existing structures should be coordinated with the Department of Natural Resources. As with Section 7(1)(d), our responses will be provided without delay even if the project encompasses the one foot of sovereign lands; individuals should be advised, however, to coordinate with the Department of Natural Resources to clear the land title problems that could result from replacing a seawall one foot waterward of an existing seawall on a natural shoreline. Any reclamation-type restorations (i.e., the filling of several feet of submerged lands to the location of a previous seawall which is currently defunct--consisting of a few pilings) will definitely require permits from this agency. This interpretation also is consistent with Section 7(3) of the act. Memorandum from Dan Farley to District and Subdistrict Managers at 7-8 (August 13, 1975). (Exhibit FI-4, at 8-9.) DER circulated this memorandum for the purpose of ensuring compliance with the requirements of the interpretations contained in the memorandum. See Deposition uf Setchfield at 15. On September 10, 1975, the staff of DER proposed the following version of the seawall restoration exemption: (h) seawalls [except those covered in Section 17-4.04(10(f) restored at their previous location or upland of or within one foot waterward of their previous location. To be eligible for exemption, the existing seawall must be located landward of, or at the present line of mean high water, and no filling can be performed except in the above authorized relocation of the seawall. This exemption shall not be utilized as a method of reclaiming or extending uplands without complying with the per- mitting provisions of Chapters 253 and 403, Florida Statutes. Coding: Words underlined are additions; words in struck-through type are dele- tions from existing law. Exhibit FI-5, at 2. No memorandum or other means of explaining the additional language proposed in this version appears in the files of DER. On September 16, 1975, DER's staff proposed an amended version of the rule, as follows: (h) seawalls [except those covered in- Section 17-4.04(10(f)] restored at their previous location or upland of or within one foot waterward of their previous loca- tion. To be eligible for exemption, there shall be no substantial encroachment of waters of the state landward of the exist- ing seawall. No filling can be performed except in the above authorized relocation of the seawall. This exemption shall not be utilized as a method of reclaiming or extending uplands without complying with the permitting provisions of Chapters 253 and 403, Florida Statutes. Exhibit FI-6, at 4. The staff presented this version of the seawall restoration exemption to the Environmental Regulation Commission at the public hearing on the adoption of Rule 17-4.04(10(h), on September 25, 1975. See Transcript of Hearing at 31 (September 25, 1975). At the outset of the hearing on September 25, 1975, Senator Lewis (one of the sponsors of the Senate bill on reorganization, and vice-chairman of the Joint Administrative Procedures Committee at the time) appeared and reported that Senator Spicola of the Committee had objected that certain of the rules and regulations embodying the exemptions were "in conflict with the law," although he specifically mentioned only the dock exemption. Id. at 6. Mr. W. D. Frederick, Jr., Chairman of the Commission, responded that the Commission had not received Senator Spicola's letter of objection but would review and adjust the rule if necessary to avoid such a conflict. Id. at 8. Both Mr. Joseph Landers, Secretary of DER in 1975, and Mr. Dan Farley, Director of DER's Division of Permitting at the time, stated that the department's purpose in drafting the rules on the exemptions had been to define and clarify statutory terms, "to resolve some of the ambiguities" in the statute. Id. at 11 and 16. Farley also summarized the agency's specific reason for the language of Rule 17- 4.04(10)(h), "to prevent the reclamation of property without benefit of permits or prevent an individual from creating filled property without the benefit of permits." Id. at 27. In response to a citizen's objection to DER's proposed restriction of the exemption to seawalls landward of which "there [was] no substantial encroachment of waters of the state," Id. at 88, Farley stated the agency's justification for the rule: The reason that that is in there is because this exemption is not, it doesn't contain any specifics at all. It doesn't say you can't go out once every week and build a sea wall one foot in front of your property, thereby creating a fingerfill. It doesn't say what type of material you may build the sea wall out of. You may build it out of plywood or cardbord[sic] and continue to create land. That's the reason it's in there. We agree with the intent that an individual if he builds a sea wall can at least replace it, but let's make sure nobody abuses it. This is the kind of thing we discussed earlier. We are concerned about someone possibly abusing this and really felt very strongly in this case there was a lot of room for abuse if you didn't put some very restrictive language in here about what the intent of the rule was. The intent is to allow the individuals to replace this existing sea wall and not to create land by using this rule. Id. at 90-91. At the hearing there was no discussion of the specific requirement that a seawall be "functional," as DER has explained that requirement in various documents, including the memorandum dated August 13, 1975, from Dan Farley to district and subdistrict managers. See Exhibit FI-4. See also Composite Exhibit FI-16. Finally, on the clause forbidding "substantial encroachment of waters of the state," Mr. Doug Jones (Chief of the Bureau of Environmental Permitting) offered the following explanation: Our interpretation of the legislative intent is that you've got a sea wall that for some reason somebody wants to restore or replace it. It's in the process of failing. When that happens, normally, you know, just experience tells you that you get water in behind the sea wall, and it starts washing out little pockets behind it. The notion is that if there's a little bit of encroachment of waters of the state behind the sea wall or on the landward side of it, the upland side of it, then we think that it is the intent to let these people repair such sea walls. So that's why we came up with the language, "To be eligible for exemption there shall be no substantial encroachment of the waters of the state landward of the existing sea wall," meaning that what we are not talking about in this category is where you've got the vague remnants of a sea wall and 15 feet of water, and then a bank, a shoreline, and having somebody use this category to try to reclaim, back out to where some former sea wall may have been. This is a phenomenon particularly apparent in some locations along the Florida panhandle perhaps where there are some remnants of an old sea wall or one that was built using palm trees, and there's maybe 15 feet of water between the remnants of the old sea wall and the land. That was not felt was, should not be the intent of this particular passage. We tried to clarify it. We realize there could possibly be better wording, but we have revised it a number of times. Id. at 109-110. In the public hearing on September 25, 1975, the Commission and DER adopted the following version of Rule 17-4.04(10)h), providing the exemption for seawalls [except those covered in Section 17-4.04(10(f)] restored at their previous location or upland of or within one (1) foot waterward of their previous location. To be eligible for exemption, there shall be no substantial encroachment of waters of the state landward of the existing seawall. No filling can be performed except in the above authorized relocation of the seawall. This exemption shall not be utilized as a method of reclaiming or extending uplands without complying with the permitting provisions of Chapters 253 and 403, Florida Statutes. The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than vertical seawalls. Section 17-4.04(10(h), Florida Administrative Code (1975). (See Exhibit FI-8.) Aside from the addition of the final sentence of the rule (at the request of the Commission), the adopted rule was identical to the draft of September 16, 1975. In a letter dated October 8, 1975, from Reynold L. Caleen, Jr., Assistant General Counsel of DER, to Mr. Carroll Webb, Executive Director of the Florida Legislature's Joint Committee on Administrative Procedures, DER transmitted a copy of the new rules to the Committee and explained that the adopted version of the seawall restoration exemption differed from previous drafts by "broaden[ing] the exemption to those seawalls where `no substantial encroachment of the waters of the state exists landward of the seawall.' " Exhibit FI-9, at 3. Cf. Exhibit FI-5, at 2 (staff draft of September 10, 1975)(seawall had to be located landward of or at the existing line of mean high water) The Committee then studied the new rules and held a public hearing on them on November 17, 1975, as a result of which the Committees raised or renewed various objections to the rules. See Letter from Carroll Webb to Joseph W. Landers, Jr., Secretary of DER (November 2, 1975)(Exhibit FI-10, at 1-2). In its introductory comments to its list of specific objections to the exemptions set forth in Rule 17-4.04(10) the Committee stated its general thesis: As a result of the exemptions set forth in 7(2) of the Reorganization Act, DER has amended its Rule 17-4.04(10) to incorporate the statutory exemptions. In the process of amending their rules, DER defined certain words used in the statute which were not defined by the legislature. Most of the objections to Rule 17-4.04(10) arise because the definitions given to the statutory words have the effect of limiting the statutory exemptions, hence frustrating the legislative intent of granting the exemptions. Exhibit FI-10, at 3. Referring specifically to the exemption for seawall restoration, the Committee adopted the following objections: Page 4 10(h) Section 7(2)(e) of Chapter 75-22 authorizes the restoration of seawalls at their previous location or upland of, or within one foot waterward of their previous location; observe that the statute makes no distinction between artificial bodies of water and natural bodies. DER by rule prohibits the restoration of seawall construction in artificial bodies of water, where Section 7(2)(i), Laws of Fla., supra, imposes no such limitations. See reference to 17-4.04(10(f). DER imposes additional restrictions on the statutory right to construct seawalls pursuant to Section 7(2)(e) of Chapter 75-22 by denying a person the right to restore a seawall otherwise in compliance with the statute if there is "substantial encoroachment of waters of the state landward of the existing seawall." DER also prohibits the use of this statutory exemption if the purpose of restoration is to reclaim or extend uplands. The statute does not speak to "purpose" of restoration--it speaks to "place" of restoration. The definitional problem of "uplands" is also present. Conclusion: The rule amends, modifies, or alters Section 7(2)[e], Chapter 75-22, supra, by modifying the statutory exemption for permit for restoration of a seawall. Composite Exhibit FI-10, at 11-12; cf. Id. at 7 (proposed objections took nearly the same form as the adopted version, except that conclusion was stated as general proposed objection). On November 24, 1975, the Committee certified its objections and transmitted a copy of them to DER. Composite Exhibit FI-10, at 1-2. On December 11, 1975, DER responded, requesting more time for the agency and the Environmental Regulation Commission to act on the objections. Id. at 13-14. Eventually, DER modified the rule to meet the Committee's objections. See Exhibit FI-11, at 3. During the winter and early spring of 1976, members of the staff of DER met with those of the Committee and appeared before the Committee at least once. Ms. Victoria J. Tschinkel, then a special assistant to Doug Jones (Chief of the Bureau of Permitting) and presently the Secretary of DER, participated in redrafting the rule to meet the Committee's objections. With advice from DER's Legal Department, she drafted the following version of the rule: 17-4.04(h) (h) seawalls [except those covered in Section 17-4.04(10(f)] restored at their previous location or upland of or within one (1) foot waterward of their previous location. However, where title to the land landward of the seawall has reverted to the State of Florida due to natural erosion, filling of such lands shall not be performed without written approval of the State of Florida Department of Natural Resources. The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than vertical seawalls. Exhibit FI-12, at 3; see Exhibit FI-13, at 4 (handwritten version identified by Ms. Tschinkel as in her handwriting) Apparently, the rule underwent further revision, for in April 1976 the staff produced a draft almost identical to the version adopted a month later: 17-4.04(10) h) (h) seawalls restored at their previous location or upland of or within one (1) foot waterward of their previous location To be eligible for exemption, there shall be no substantial encroachment of waters of the state landward of the existing seawall. No filling can be performed except in the above authorized restoration of the seawall No construction shall be undertaken without necessary title or leasehold interest especially where private and public ownership boundaries have changed as a result of natural occurrences such as accretion and reliction The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than vertical seawalls. Exhibit FI-14, at 2-3. Finally, on June 13, 1976, the Secretary of DER certified the adoption of the following amendments to Rule 17-4.04(10)(h)(words struck through were deleted; language underscored was added) on May 12, 1976: seawalls restored at their previous location or upland of or within one foot waterward of their previous location. No filling can be performed except in the above authorized restoration of the seawall. No construction shall be undertaken without necessary title or leasehold interest especially where private and public ownership boundaries have changed as a result of natural occurrences such as accretion, reliction and natural erosion. The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than vertical seawalls. Exhibit FI-11, at 7. After DER adopted this version of the rule, the Committee withdrew its objections to Rule 17-4.04(10)(h) There is no significant difference between the form of the rule adopted in 1976 and the present version (codified at Section 17-4.04(9)(h) of the Florida Administrative Code, as explained in paragraph 2 of this Stipulation) At least since August 13, 1975, when Dan Farley (the Director of DER's Division of Permitting at the time) sent the memorandum described in paragraph 4 about (see Exhibit FI-4) to district and subdistrict managers, among others, the consistent practice of DER in all districts has been and is to interpret the exemption for restoring seawalls as requiring that functional means essentially intact and preventing inundation of areas landward of the seawall. See Composite Exhibit FI-16. Thus, so far as can be discovered, DER has uniformly denied the exemption for any seawall falling to comply with the functionality requirement by being located substantially waterward of mean high or ordinary high water in places or so deteriorated as to permit more than minimal erosion of the land behind the seawall. Besides the memorandum from Mr. Farley described in paragraph 4 above, DER has recorded the same "functionality" requirement in various other documents (see Composite Exhibit FI-16; Exhibit FI-17), including the Dredge and Fill Manual, the departmental training manual for dredge and fill permitting, not published to the general public but given to each and every individual processor of dredge-and-fill applications in all the districts. See Deposition of Walker at 34-35. DER has never adopted or promulgated the "functionality" requirement a a rule independent of Rule 17-4.04(10)(h). Although the title page of the Dredge and Fill Manual contains a disclaimer that the manual "is not to be used as a rule of the department," Ms. Tschinkel, Ms. Suzanne Walker (current Chief of the Bureau of Permitting), and Ms. Helen Setchfield (a special technical assistant to the Director of the Division of Permitting) all testified in deposition that DER compiled the manual to ensure uniform procedures and application of the statutes, rules, and policy statements of DER on dredge and fill permitting, including a uniform application of the requirement that a seawall be functional to be eligible for the seawall restoration exemption. Each of them also took the position that she would reverse (or urge reversal of) any decision by a lower ranking member of DER's staff that ran contrary to the seawall functionality requirement for this exempton, as stated in the documents in Exhibit FI-4 and Composite FI-16, and in the Dredge and Fill Manual. On behalf of the department, Ms. Setchfield authored the following statement of DER's imposition of a functionality requirement in applying the seawall restoration exemption: 5. Seawalls [Section 403.013(2)(e), Fla. Admin.Code Rule 17-4.04(h)] This exemption provides for the restoration of a seawall at its previous location or upland of the previous location or within one foot waterward of the previous location. The exemption for restoration of a seawall is designed for the repair or replacement of an existing, functioning seawall. It does not include the rebuilding of a seawall which was obliterated at some earlier time. The exemption does not include any filling other than the actual placement of the seawall material and minimal backfill. It does not include reclaimation pursuant to Section 253.124(8), F.S. At the direction of the Environmental Regulation Commission we should encourage applicants to use riprap; however, it is not mandatory that they do so except where the seawall is being restored within the Biscayne Bay Aquatic Preserve. Exhibit FI-17, at 188 (Manual at 188). Ms. Setchfield based this version on all available written statements of DER's consistent interpretation and guidelines for application of the exemption. As far as can be discovered, DER is consistently carrying out its intent of uniformly applying these criteria and requires all applicants for the exemption to meet all elements of the position stated in the manual and the documents of Exhibit FI-4 and FI-16. This has been the consistent practice of DER throughout the state since August 1975 and reflects the status of the seawall restoration exemption both in 1981 when Fisher Island applied for the exemption and at present. On December 9, 1981, Richard Walesky and Larry O'Donnell of the South Subdistrict Office in West Palm Beach submitted their report of a visual inspection of the site made by fur. Walesky in November 1981. Mr. Walesky walked along the shoreline and swam over the area just offshore in which the applicant's consulting engineer had plotted the line of the seawall. Mr. Walesky concluded that because water completely covered the allegedly existing seawall except for some pilings in a line along the northern portion of the southwestern shoreline, substantially waterward of the existing mean high water line, and because he found no other visual evidence of the seawall, it was not "a functional seawall and clearly [did] not fit the requested exemption." Exhibit FI-18. On the basis of the report of Mr. Walesky's visual inspection of the site, DER informed Petitioner Fisher Island that its project did not qualify for the exemption. Accordingly, DER proceeded to process the application for a standard dredge and fill permit and eventually issued its Intent to Deny the permit, on April 15, 1983. See Composite Exhibit FI-19. Fisher Island owns the submerged lands lying between the existing seawall and the line of mean high water. The Board of Trustees of the Internal Improvement Trust Fund (Board) sold the lands in question in 1920, and Fisher Island has purchased those lands along with most of the island. See Composite Exhibit FI-20. Acting through the Department of Natural Resources (DNR), the Board has admitted Fisher Island's ownership of the submerged lands that Petitioner proposed to fill and reclaim, and the Board and DNR have raised no objection to Petitioner's application for a permit to restore the seawall. See Exhibit FI-21.
Findings Of Fact The property here involved comprises 6.2 acres located in Southeast Clearwater near U.S. 19 and Nursery Road. It fronts on Nursery Road, which is on the north side of the property and the zoning is RM-16 (medium density multifamily). A multifamily HUD project is under construction and approximately two-thirds complete. The issue in this case is the denial of Chateaux de Ville's application for a variance to erect a six-foot wall on the front property line which abuts Nursery Road. Zoning regulations authorize a 30-inch fence along the front property line. Preliminary site plan for this townhouse development was approved by the City Commission on November 19, 1981 (Exhibit 1), as a Final Site plan. A minor amendment to this plan to erect the 30-inch masonry wall in the setback area in the northwesterly corner of the property was approved December 15, 1983 (Exhibit 2). On August 13, 1982, the City of Clearwater Engineering Department approved Final Site plans which showed the proposed six-foot high concrete wall on the front property line running the entire length of the property along Nursery Road (Exhibit 8). That approval was granted subject to compliance with all zoning regulations. No approval from the City Planning Department was obtained for this proposed wall. A second amendment to the site plan to add a bath house adjacent to the swimming pool was approved April 19, 1984, by the City Manager upon recommendation of the Planning Department (Exhibit 3). A third revision to the site plan to provide for a six foot perimeter wood fence along the east, west, and south sides of the property and to provide six-foot fences between the individual townhouse unit rear yards located both internally and along the east, west, and south perimeter of the project area was approved in July 1984 (Exhibit 4). In recommending approval of this amendment, which complied with the zoning regulations, the Planning Director noted that no fencing is being provided for the townhouse units along the north side of the project adjacent to Nursery Road. Without obtaining a building permit for its construction, a six-foot concrete block wall was erected on the front property line (adjacent to Nursery Road) by the developer. No building permit for such construction would have been issued by the City until a variance in permitted fence height had been obtained. The building and zoning regulations provide that no fence higher than 30 inches can be erected in the front setback area without first obtaining a variance. Approximately one-third of the tract being developed is occupied by a lake on the south end of the property. This lake was described as a very attractive lake with good fishing. Appellant contends that this lake constitutes an attractive nuisance and the wall on the front of the property is needed to keep children from entering the property. Appellant also contends that the six-foot wall along the front of the property is needed to protect the residents from burglars, thieves, and other criminal elements who easily could enter the property from Nursery Road if the fence is not there to deter them. The wall also serves to complete the six-foot enclosure around the property.
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
