The Issue At issue in this proceeding is what costs, if any, are recoverable by petitioner as a consequence of its successful prosecution of an appeal from the agency's final order heretofore rendered in the above-styled matter.
Findings Of Fact Background On January 14, 1988, respondent, Key Biscayne Limited partnership, formerly known as Biscayne Beach Hotel Association, Ltd. (the "Hotel") , filed an application with Respondent, Department of Natural Resources (DNR), for a coastal construction control line (CCCL) permit authorizing it to conduct construction activities seaward of the Dade County CCCL on Key Biscayne, Florida. As proposed, the Hotel, which currently owns the Sonesta Beach Hotel on Key Biscayne, sought authorization to construct a nine-story 124-unit habitable addition and a one-story non habitable addition, with understructure parking, to its existing facility. Incident to such construction, the Hotel also sought authorization to construct a deck and jacuzz-type hot tub south of the addition, and authorization to excavate approximately 1,400 cubic yards of fill for the pile foundation and caps, and to deposit such fill seaward of the CCCL. Excavation for the foundation would extend a maximum of 177 feet seaward of the CCCL and placement of the excavated material would extend a maximum of 300 feet seaward of the CCCL. On August 11, 1988, DNR issued a notice of intent to approve the Hotel's application and to is sue a CCCL permit subject to the following special conditions: The issuance of the permit placard shall be withheld pending staff receipt and approval of: Two sets of specifications and final certified construction plans accurately dimensioned with elevation referenced to NGVD. Details of the foundation of the 9-story and single- story addition, pile/pile cap/column connections, column/floor slab and roof slab connections, cantilevered balconies, garage floor slab, breakaway walls, storm drainage and domestic waste disposal, and fences shall be included in the plans. Two sets of certified dimensioned site plans showing the location of the control line, existing sea grape trees, the placement of excavated material seaward of the control line, and species of salt-resistant vegetation. The site plans shall be subject to review and acceptance by the Bureau staff. Evidence that written notice has been recorded in the deed covenants and restrictions for the subject property that: The construction of any future rigid coastal protection structures on the property shall be prohibited. The deed covenants and restrictions shall be recorded in the public records of Dade County. Such deed covenants and restrictions shall be enforceable and shall not be altered unless approved by the Department of Natural Resources. The use of gravel or other similar materials or structures with the potential for becoming aerodynamically propelled missiles shall not be included in the construction of the roof. Salt-resistant vegetation such as sea oats, sea grape, panic grass, salt jointgrass, and/or other approved salt- resistant species shall be planted on the fill area. In addition, the permittee shall irrigate and apply fertilizer as appropriate for the particular species planted until the vegetation is established. A 75 percent survival rate of the vegetations shall be ensured and replanting shall be conducted until a 75 percent overall survival rate is attained and until any sizeable barren portions of the area are covered. The excavated fill material to be placed on the beach shall consist of material compatible in grain size and coloration as the native beach sand and shall come from a source located landward of the coastal construction control line. The main structure of the addition shall not extend further seaward than the projected line of the existing retaining wall located seaward of the existing swimming pool. Petitioner, Key Biscayne Council (the "Council"), filed a timely protest of DNR's action. Essentially, the Council contended that the location of the proposed construction would be seaward of the 30-year seasonal high-water line and, therefore, prohibited by Section 161.053(6)(b), Florida Statues; that the proposed construction would adversely impact the beach-dune system and adjacent properties; that construction of similar projects along the coast would have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline; and that the proposed construction failed to comply with the setback requirements or zoning or building codes of Dade County. The Key Biscayne Council In Its petition for formal hearing, the Council alleged that it was a not-for-profit Florida corporation which had, as one of its purposes, the preservation of the environment of Key Biscayne, including its beaches. The proof at hearing failed, however, to demonstrate that the Council enjoyed corporate status but, rather, demonstrated that it was an association formed in November 1987 to give the residents of Key Biscayne a more effective voice on matters of local interest, including the preservation of the environment of Key Biscayne. The Council is governed by nine individuals who are residents of Key Biscayne. These individuals are elected to their positions by the resident members of the association, who are also registered voters in Dade County. 4/ The Council meets at least once each month, and its meetings are open to the public. The agenda for each meeting is published in the local Key Biscayne newspaper, The Islander, the week before each meeting. Of particular interest to the Council is the preservation and protection of the beaches of Key Biscayne which form an important part of that community's and the Council members' lifestyle. To date, the Council has been a motivating force behind the enactment of Dade County Ordinance No. 89-23 discussed infra, which established the CCCL as the mandatory setback line for new construction on Key Biscayne, as well as efforts to fund a cleanup of the beaches, to establish a vegetation dune system, and to protect the sea turtle population. Here, by unanimous vote of the Council, it elected to contest the propriety of DNR's proposal to approve the Hotel's application to construct the proposed additions seaward of the CCCL. Key Biscayne and the surrounding topography Key Biscayne is the southernmost barrier island in what is now a chain of barrier islands extending southward from Miami Beach. Historically, Miami Beach was connected to some extent with Virginia Key, which lies to the north across Bear's Cut from Key Biscayne. In 1835, however, a hurricane struck the area, breached whatever connection existed between Miami Beach and Virginia Key, and formed what is now known as Norris Cut. The topography of the area was further altered in 1905 when construction of Government Cut, the navigational channel for the Port of Miami, was begun. Construction of that cut severed the southern tip from Miami Beach, and formed what is now known as Fisher Island. By 1927, a jetty had been constructed on the north side of Government Cut that created an effective barrier to any along shore sediment transport to the south. Over time the channel in Government Cut was deepened and jetties on its north and south sides extended. Today, the channel is 42 feet deep and extends two miles into the ocean. The north jetty extends 3,000 feet into the ocean, and the south jetty extends 2,750 feet into the ocean. Key Biscayne, which lies to the south of Government Cut and the other islands, is a sand island, roughly "drum-stick" in shape, formed on a limestone base, with elevations ranging from 5 1/2 to 6 1/2 feet. The northern and southern portions of its eastern shore are dominated by Crandon Park and Cape Florida State park, respectively, with development concentrated in the central portion of the island. It is along this central part of the island that the Sonesta Beach Hotel exists, and where the proposed construction is to occur. Immediately north of the existing hotel lies the Silver Sands Hotel and Sand Dollar Restaurant. To the south of the hotel lies the Sheraton Beach Hotel and Beach Club and, further south, the Key Biscayne Hotel and Villas. 5/ Although Key Biscayne is generally subject to mild weather conditions and a low energy environment, it has been subjected to erosion along its eastern shore, with the more severe erosion occurring along the central portion of its shoreline. Seaward of the northern and southern portions of its eastern shore, sand shoals exist which tend to dampen the force of wave energy that would otherwise be exerted against that stretch of coast line. The center of the island is not, however, accorded similar protection and the consequent concentration of wave energy causes sand to be transported from the center of the island to its outer ends. As a result, the central portion of the island, where the subject development is proposed, has historically eroded at a faster rate than the north or south ends of the island. In September 1984, as a consequence of the severe erosion suffered to the eastern shore of Key Biscayne, Dade County was authorized to place over 411,000 cubic yards of sand along approximately 10,000 feet of shoreline on Key Biscayne, and to construct a terminal structure at the south end of the island. The beach was restored by hydraulically pumping sand onto the beach from an offshore dredge and then redistributing the sand with a bulldozer. The resulting beach is characterized as "plan form," and is expected to assume a natural profile over time by responding to the natural forces of wind and waves. The fill pipes which were used to pump sand onto the beach were removed from the area of the Sonesta Beach Hotel on July 3, 1987, and the reprofiling or redistribution of sand in that area was completed around July 20, 1987. On September 26, 1987, the renourishment project was certified complete. The 30-year erosion projection Section 161.053(6)(b) Florida Statutes, provides that DNR may not issue a permit for construction seaward of the CCCL, except for certain specific structures not pertinent to this case, if the structure is "proposed for a location which, based on the department's projections of erosion in the area, will be seaward of the seasonal high-water line within 30 years after the date of application for such permit." The "seasonal high-water line" is a creature of statute, and is defined by Section 161.053(6)(a), Florida Statues, as "the line formed by the intersection of the rising shore and the elevation of 150 percent of the local mean tidal range above local mean high-water." Here, the seasonal high-water line, which is established as an elevation, calculates to approximately 5.4 feet NGVD, and according to the survey dated August 1, 1987, which was submitted with the Hotel's application, currently derives a line that is approximately 375 feet seaward of the proposed construction. To establish the 30-year erosion projection, DNR proposes to horizontally shift the profile which was depicted on such survey in a landward direction a distance equal to the expected erosion rate over a 30-year period. Ordinarily, DNR would calculate a 30-year erosion projection based on historic erosion rates, referred to as "horizontal change rates" in Rule 16B- 33.024, Florida Administrative Code, by reviewing two or more historical surveys taken over a period of time, and measuring the amount of shoreline recession that had occurred during that period. From that figure, an erosion rate would be derived by dividing the number of years which elapsed over the period of record chosen into the amount of shoreline recession that occurred during that period. The result would be the historic erosion rate which, when multiplied by 30, would establish the location of the 30-year seasonal high-water line. However, where, as here, the beach as been renourished, consideration of the effect and performance of such project must also be considered in making the 30- year erosion projection. Rule 16B-33.024(3)(e), Florida Administrative Code. Accordingly, to determine the expected location of the seasonal high-water line in 30 years in this case, it is necessary to establish a historical shoreline change rate and to evaluate the effect and performance of the beach renourishment project. To establish an appropriate historical erosion rate for the subject site, consideration must be given to both the tidal datum relied upon to obtain the rates, and the time period selected as the period of record for analysis of historic shoreline change rates. With regard to tidal datums, the Department's rule provides that horizontal shoreline change rate values may be obtained from one of several available tidal datums, including mean high-water, mean sea level, and mean low-water. Rule 16B-33.024(3)(a), Florida Administrative Code. However, the preferred and more reliable tidal datum to use in assessing historic erosion rates is the line of mean high-water. The time period used in calculating the historic shoreline change rate is required by DNR's rule to extend from the date of the field work for the applicant's survey, which was submitted as part of the application, to the earliest date for which reliable information is available. Rule 16R- 33.024(3)(b) Florida Administrative Code. The historic shoreline change rate analysis should generally include data from points 3,000 feet on either side of the proposed construction, with the change rate for each point averaged for the time period chosen. Rule 16R-33.024(3)(g), Florida Administrative Code. In the event that coastal or shoreline protection structures exist which have influenced the shoreline data for any of the reference points, such influence must be addressed, and if such influence renders the data unreliable the rate data obtained from that point during the period of influence must be rejected. 6/ Rule 16B-33.024(3)(c), Florida Administrative Code. Historic shoreline change rates for the subject project are properly determined by reference to DNR reference monuments R-101 to R-106, located on Key Biscayne. Monument R-104 is the closest monument to the project site, lying approximately 180 to 200 feet south of the site, with the project lying between monuments R-103 and R-104. To facilitate an accurate determination of historic shoreline change rates, DNR has created the Beaches and Shores Growth Management Data Base (DNR Data Base), which consists of data from primary source maps from various governmental agencies, including the United States Coastal and Geodetic Survey, National Ocean Survey, and United States Geologic Survey. These maps have been digitized relative to the DNR monuments, which are located along- the coast at- approximately 1,000-foot intervals, and the resulting data is used to assess shoreline changes over time. Inherent in these shoreline changes are the effects of natural forces on the shoreline, such as wind, wave height, and temperature. Pertinent to this case, the surveys available in the DNR Data Base prior to 1989 were those of 1851, 1919, 1927, 1935, 1945, and 1962. In or about February 1989, DNR contracted with Florida State University to redigitize maps of Key Biscayne. As a consequence, the accuracy of existing data was enhanced and a new survey, the 1913 United States Coastal and Geodetic Survey Map, was added to the DNR Data Base. The addition of the 1913 survey to the DNR Data Base is significant to this case, since the proof demonstrates that the data derived from the 1919 survey is unreliable and should be disregarded. Accordingly, the surveys that may be reasonably relied on in this case are those of 1851, 1913, 1927, 1935, 1945, and 1962. In selecting the appropriate period to determine the historic change rate in this case, several factors should be considered. First, in 1926 a hurricane, which came very close to Key Biscayne, resulted in severe damage to the beach. This storm was reported as at least a 100-year storm event, and is the major storm of record for the area. The 1926 storm, as a naturally occurring event, should be taken into consideration in arriving at an historic erosion rate, but should not be allowed to bias the data. Accordingly, any survey immediately preceding it should not ordinarily be used as a starting point for determining an historic erosion rate, because it would overestimate the historic change rate. Similarly, the immediate post-storm survey of 1927 should not be used as the starting point for determining the historic change rate, since this data would overestimate the effects of the post-storm rebound (accretion), but ignore the erosion caused by the 1926 storm and artificially lower the erosion rate. Finally, the 1962 survey should be the most recent survey used to establish an historic erosion rate, since it marks the end of the predevelopment phase of the study. In the mid-1960's, shoreline structures (seawalls) were erected along portions of the coast, and a beach renourishment project was carried out at Crandon Park in 1969 resulting in filling at DNR Monument R-101. These events render post 1962 data unreliable in assessing an historic change rate. Here, the proof demonstrates that the appropriate time period for analyzing the historic change rate is 1851 to 1962. Based on an analysis of the historic change data for such period, the appropriate historic erosion rate for the project site is -2.3 feet per year. In reaching the foregoing conclusion, the Council's contention that pre-1919 survey data should be rejected in deriving an historic change rate because the construction of Government Cut had, by 1927, interrupted a littoral supply of sand in the neighborhood of 200,000 to 400,000 cubic yards of sand to the south has not been overlooked. However, the more credible proof demonstrates that the littoral transport of sand along this area of Florida's coast is approximately 10,000 cubic yards per year, and that little of that sand ever reached Key Biscayne. Accordingly, the construction of Government Cut had little, if any, impact on Key Biscayne. Also, notable to this conclusion is the fact that an analysis of the historic change rate from 1913 to 1962 calculates an historic erosion rate of -2.5 feet per year, an insignificant difference from that calculated for the period of 1851 to 1962, and the existence of an erosional trend at the central portion of Key Biscayne prior to the construction of Government Cut. Following the establishment of an historic erosion rate, the next step in assessing the expected location of the seasonal high-water line in 30 years in situations where, as here, the beach has been renourished, is a consideration of the effect and performance of such renourishment project. The importance of this analysis cannot be gainsaid, since a beach nourishment project may behave differently than the natural beach, as the nourishment may erode faster or slower than the natural beach or it may accrete. Factors which may cause a beach nourishment project to behave differently than the natural beach include project design, such as the length and width of the project, the seaward slope of the fill material, and the nature of the fill material; and, natural and manmade factors, such as offshore shoals, jetties, and breakwaters. The length and width of a project is very significant in terms of how long the project will remain in place. A project which is short in length will have a tendency to erode at a faster rate than a long project or the natural beach. This loss, referred to as "end losses" or "spreading-out losses," is not necessarily a loss of material from the system, but rather a redistribution of the sediment to the outer edges of the nourishment project. These spreading-out losses are caused by the project's exposure to waves that occur from offshore. As a nourishment project is exposed to waves, it reacts to the force of those waves by spreading out in an alongshore direction, resulting in a reduction in the overall width of the project. A longer project, such as the nourishment project in the existent case, will erode from the ends more slowly than a small project and, consequently, maintain its width and life for a greater period of time. The seaward slope of the nourished beach will also affect the project's performance. When a nourishment project is constructed, the seaward slope of the beach may initially be steeper than the slope which existed prior to nourishment, and may be irregular in shape compared to the natural shoreline. During the slope adjustment process, gravity and waves act on the shoreline to create a more natural slope and shape. During this process, the upland portion of the beach, as well as any irregularities in the shoreline, will experience shoreline recession, with the material being redistributed along shore and offshore. This adjustment process, and the effects it will have on the project's performance, may extend over several years after nourishment is completed. The grain size of the material used in the nourishment project can also affect the performance of the project. If the sediments used to construct the nourishment project are essentially of the same grain size and quality of the sediments which existed on the natural beach, then the nourished beach can be expected to perform, after initial slope adjustment, in much the same manner as the natural beach.. Natural features or manmade structures which may affect the performance of the nourishment project include the shoreline and offshore characteristics of the area that can increase or slow the rate at which the material may otherwise erode, or a groin or natural feature that would tend to confine the project and prevent or minimize spreading-out losses. Here, the nourishment project is a long project, approximately 10,000 feet in length. This factor will contribute favorably to the project's longevity. The material used in the nourishment project is very similar to that which existed on the natural beach. Therefore, after initial slope adjustment, the nourished beach should perform in a manner similar to the natural beach. Finally, the portion of the beach fronting the hotel is bordered to the north and south by areas which are historically stable or accreting. This factor should stabilize the ends of the project, and reduce the alongshore spread which would otherwise occur. In sum, after the slope and shoreline have adjusted to a natural profile and shape, the nourishment project should perform in a manner very similar to the pre-nourishment beach. While the nourishment project should ultimately perform similar to the pre-nourished beach, little time has elapsed since completion of the project for slope and shoreline adjustment or to demonstrate stabilization. Here, the nourished beach was profiled by man (bulldozers), with the reprofiling in she area of the hotel being completed around July 20, 1987. The Hotel submitted its application for the subject permit on January 14, 1988, together with a survey of the area dated August 1, 1987. Based on this survey, DNR proposes to establish the 30-year seasonal high-water line by horizontally shifting the profile depicted on the survey in a landward direction. To predict the performance of the beach nourishment over time, the Hotel offered the results of an analytical computer model run by Dr. Robert Dean, an expert in coastal and oceanographic engineering and coastal processes. That model predicts spreading-out losses," and considers site specific factors that will affect the nourishment project, including pre-existing shoreline conditions, size and quality of the beach fill, volume, length of the project, conditions at the end of the fill, and the affect of wave forces on the coast. The wave data relied upon by Dr. Dean to drive his model was derived from a wave gauge located just north of Government Cut. The wave characteristics at Key Biscayne are, however, dissimilar to those experienced off Miami Beach due to the wave damping characteristics of the offshore area of Key Biscayne. While dissimilar, Dr. Dean opined that the data from Miami Beach could be reliably used as a conservative estimate of the force of waves at Key Biscayne, and that his model would, thereby, present a worst case scenario or prediction of spreading-out loss of sediment on the nourished beach. Based on such analysis, Dr. Dean predicted that shoreline recession on the nourished beach, attributable to spreading-out losses, would amount to 28 feet over the next 30 years, most of which would occur in the early years of the project. When combined with the historic change rate of -2.3 feet per year for 30 years, Dr. Dean calculates that 97 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 102 feet landward of the seasonal high-water line. DNR also made an erosion projection to predict the performance of the beach nourishment over time. In its analysis, DNR relied on monitoring data Dade County had gathered regarding the performance of the project. Such data measured, at various monuments, the amount of accretion or erosion that had occurred within the first 6 months of the project, and the amount of accretion or erosion that had occurred over the next 12 months of the project. The data was not, however, complete for all monuments within 3,000 feet of the hotel, and was otherwise unpersuasive for reasons hereinafter discussed. In performing its analysis, DNR chose to focus on one monument, PL-5- DC, which is located 200 feet north of the hotel. The data at that monument showed that within the first six months the mean high-water line (MHWL) had receded 22 feet, and that over the next 12 months it had receded an additional 10 feet. Assuming a constant rate of erosion based on those two time points, DNR concluded that initial slope adjustment or stabilization would occur within four years, and that shoreline recession on the nourished beach over that 4-year period would amount to -41.6 feet. When combined with an historic change rate of -2.3 feet for the next 26 years, DNR's methodology calculates that 101.4 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 99 feet landward of the seasonal high-water line. 7/ While Dr. Dean's model and DNR's analysis of Dade County data may yield similar results, neither methodology is, under the circumstances of this case, persuasive proof of how the nourishment project will perform or where the 30-year seasonal high-water line will be located. Here, the proof demonstrates that Key Biscayne enjoys a low-energy environment, and that the only force of significance ordinarily exerted along its coast occurs during the winter months when northeasters impact its shoreline. It is this wave energy that would, under normal circumstances, mold or adjust the seaward slope and shoreline of the nourishment project until it reached a more natural slope and shoreline, and after which the rate of erosion would be consistent with the historic change rate. However, since completion of the nourishment project, Key Biscayne has enjoyed unusually mild weather conditions, and the usual winter storms have not occurred. Consequently, the nourishment project has yet to be subjected to the forces of nature which can be reasonably expected to ultimately mold or adjust its seaward slope and shoreline. DNR's conclusion that the nourishment project will reach stability within four years, based on its analysis of the meager data provided by Dade County, is simply unpersuasive. That data, which appears on page 6 of DNR's exhibit 5, showed that at monument PL-5-DC the MHWL had receded 22 feet in the first six months of project existence and 10 feet over the course of the next 12 months. Based solely on these two measurements, DNR calculated a straight line decreasing rate of erosion to conclude that within four years the project would erode at the historic change rate. DNR's methodology and assumption, based on only two points of measure within the first 18 months of project existence, is not credible or persuasive proof of how the nourishment project will perform, and is rendered even less persuasive In view of the mild weather that affected Key Biscayne during such time period. Dr. Dean's opinion, based on his analytical computer model, which assessed shoreline recession on the nourished beach attributable to spreading- out losses, is likewise unpersuasive proof of how the nourishment project will perform. While Dr. Dean considered spreading-out losses and the historic change rate in reaching his conclusion, he failed to address offshore losses of sediment that will occur as the seaward slope of the project adjusts to a more natural profile. Here, the proof demonstrates that the seaward slope was constructed much more steeply than the natural slope, and that in the first 18 months of project existence significant quantities of fill have been lost offshore. At monument PL-5-DC the slope remains steep. Notably, while Dr. Dean calculated a spreading-out loss for the life of the project of 28 feet under what he termed a worse case scenario of wave height, the MHWL at the nourishment project has already receded 32 feet, under mild weather conditions, in the first 18 months of existence. Compared with Dr. Dean's and DNR's conclusions, the Army Corps of Engineers (Corps), which designed the nourishment project, calculated a loss rate of approximately 22,000 cubic yards of fill each year. Should the project perform consistent with the Corps' estimate of project life, it will have receded to the Dade County erosion control line within 10 years, and over the course of the next 20 years to a point such that the proposed addition would lie seaward of the 30-year seasonal high-water line. Under the circumstances of this case, a calculation of the probable location of the 30-year seasonable high-water line, based on the Corps' estimate of the performance of the nourishment project, is more compelling than that of Dr. Dean or DNR. 8/ Impact on the beach and dune system Where, as here, construction is proposed seaward of the CCCL, Section 161.053(5)(a)3, Florida Statutes, requires DNR to consider the potential impacts which the location of the proposed structures or activities may have on the beach-dune system. That system includes the beach, the dunes, and the overwash areas, which are interrelated by the sediment erosion and accretion process. 9/ DNR's analysis of potential impacts to the beach-dune system includes both short-term and long-term impacts of proposed construction. Short-term impacts are those which may arise during construction of a project and are often a concern in sensitive areas, such as those areas characterized by natural dune features and dune-stabilizing vegetation. Long-term impacts of a project may include increased flooding caused by a lowering of dunes and increased erosion caused by a lowering of dunes or by a net loss of sand from the beach-dune system. Impact to the beach-dune system can also be caused by increased pedestrian traffic associated with the construction of a major habitable structure. Pedestrian-caused impacts are, however, a potential concern only in areas where there are dune features and stabilizing vegetation which could be destroyed. In the absence, of these dune features, pedestrian traffic has no significant impact to the beach-dune system. Here, the site of the proposed construction does not have any prominent dune features or stabilizing dune features or stabilizing dune vegetation. In fact, the site is the present location of an asphalt parking lot, which extends 40 feet seaward of the footprint of the proposed construction. Construction of the project will not result in any net excavation of material. Since dunes will not be lowered and there will be no net loss of material, there will be no increased flooding or erosion caused by the project. Under such circumstances, the proof demonstrates that there will be no long-term or short-term impacts to the beach-dune system occasioned by the project. Adverse cumulative impact on the beach-dune system Section 161.053(5)(a)3, Florida Statutes, also requires DNR to assess the potential cumulative impacts to the beach-dune system that may be caused by construction seaward of the CCCL. Here, the proof demonstrates that the proposed project, either singularly or in combination with other existing or similar projects, would not have any adverse impact to the beach-dune system. Impact on adjacent property Construction activities proposed for a location seaward of the CCCL are also analyzed by DNR to assess their impact on adjacent properties. Rule 16B-33.007(2), Florida Administrative Code. Such analysis includes a determination of whether construction activities will be confined on-site; whether a lowering of dunes will occur such that increased flooding on adjacent property could occur; whether elevations on the proposed construction site will be lowered such that flooding of adjacent property could occur; and whether proposed construction, in the event of a major storm event, would potentially increase erosion on adjacent property. Here, the proof demonstrates that construction activities will be confined on site, there will be no lowering of the dunes or elevations, and that there will be no net excavation of materials such that any increased risk of flooding or erosion could occur to either the project site or to adjacent properties. Interference with public beach access One purpose of CCCL permitting is to preserve public beach access. Sections 161.053(1) and (5)(e), Florida Statutes. "Public access" is defined as "the public's right to laterally traverse the sandy beaches of this state where such access exists on or after July 1, 1987." Section 161.021(1), Florida Statutes. The public presently does not have east-west access to the beach at the Sonesta Beach Hotel, and is not entitled to such access by law. The Hotel does not propose to hinder existing north-south (shore parallel/lateral) beach access, and the proposed project would not impede such access until the seasonal high-water line receded to the project. 10/ While the project might limit lateral access at times once the seasonal high-water line recedes, such impact would be de minimis in the instant case since construction of the project would not be seaward of existing structures on the Hotel's property. Compliance with local zoning requirements In order for a permit application to be deemed complete, an applicant must provide DNR with written evidence, provided by the appropriate local governmental-agency having jurisdiction over the activity, that the proposed development does not contravene local setback requirements or zoning or building codes. Rule 16B-33.008(2)(c), Florida Administrative Code. By letter dated February 10, 1988, the Hotel submitted to DNR a letter from Metropolitan Dade County's Department of Building and Zoning which indicated that the site plan for the proposed project was consistent with existent regulations. On April 21, 1988, DNR deemed the Hotel's application complete. While not contesting the consistency of the proposed project with local regulations at the time the Hotel's application was deemed complete, the Council contends that subsequent events have rendered its proposal inconsistent with such regulations. In this regard, the proof demonstrates that the Hotel received site plan approval for the proposed addition from Dade County in November 1988, but that its application for a bull ding permit was denied and returned to the Hotel for further action. To date the Hotel has not sought to further process such application with the County. On April 4, 1989, Dade County enacted Ordinance No. 89-23, effective April 14, 1989, relating to construction seaward of the CCCL on Key Biscayne. Pertinent to this case, the ordinance prohibits the new construction of major habitual structures and severely restricts the construction of nonhabitable structures seaward of the CCCL, absent a variance. At hearing, no proof was offered that any portion of the proposed project would qualify for a variance, or that the nonhabitable portion of the project complied with the requirements of the new ordinance. 11/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the Hotel's application to construct and excavate seaward of the CCCL. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of September 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1989.
Findings Of Fact Respondent, Department of Community Affairs, is the state land planning agency charged with the responsibility of administering the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. The Department has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern pursuant to Sections 380.031(18), 380.032, and 380.07, Florida Statutes. At all times pertinent to this proceeding and to DOAH Case Number 93- 7165DRI, Petitioner, Fred Snowman, owned the real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida (the subject property). A building permit issued by Monroe County, described below, for this property was the subject of DOAH Case Number 93- 7165DRI (the underlying proceeding.) The lot is approximately 100 feet wide and, at different points, between 200 and 225 feet deep. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean in an area known as Matecumbe Beach. Matecumbe Beach is a known resting and nesting habitat for marine turtles. This building permit constituted a development order on property within the Florida Keys Area of Critical State Concern. On September 30, 1993, Monroe County issued to Mr. Snowman, as the owner and general contractor, building permit number 9330008850, which authorized the construction on the subject property of a single-family residence containing 2,472 square feet of heated and cooled area, 1,568 square feet of porches, 1,435 square feet of storage enclosure below base flood elevation, and a swimming pool. The authorized construction was to be consistent with the building site plan, which was also approved by Monroe County. On November 18, 1993, the Department timely appealed the subject building permit to the Florida Land and Water Adjudicatory Commission (FLWAC) pursuant to Section 380.07, Florida Statutes. FLWAC referred the matter to the Division of Administrative Hearings where it was assigned DOAH Case Number 93- 7165DRI. A formal hearing was conducted in DOAH Case Number 93-7165DRI in Key West, Florida, on June 30, 1994. Following the formal hearing, the parties were afforded the opportunity to file post-hearing submittals. Thereafter, a recommended order was entered which recommended that FLWAC enter a final order that dismisses the Department's appeal. After the entry of the recommended order, the Department voluntarily dismissed its appeal. FLWAC subsequently entered a final order of dismissal. Petitioner, Fred Snowman, was the prevailing party in DOAH Case Number 93-7165DRI. SMALL BUSINESS PARTY The issue as to whether Petitioner is a "small business party" as defined by Section 57.111(3)(d), Florida Statutes, was disputed by the Department in this proceeding. The parties stipulated that Mr. Snowman meets the remaining criteria contained in Section 57.111, Florida Statutes, for an award of attorney's fees and costs. The following testimony elicited by Petitioner's counsel of the Petitioner was the sole evidence pertaining to the number of employees of the Petitioner: Could you tell us a little bit about your business? What's the nature of your business? Primarily I'm a speculation - spec builder and general contractor in the Florida Keys, and have been since 1973. Q. How many employees do you maintain on a regular basis? A. I mainly have subcontractors. Occasionally when I have a job, I hire for that particular job. But I'm the sole proprietor and I'm the employee. (Transcript, page 9, lines 12-22.) While the foregoing testimony establishes that as of May 15, 1995, Petitioner was the sole proprietor and sole employee of his business, it does not establish that Petitioner had fewer than 25 employees in 1993 when the Department initiated its actions against him. 1/ The following testimony elicited by Petitioner's counsel of the Petitioner pertains to his net worth: Q. What is your net worth? Let me ask you this. Does your net worth exceed a million dollars? A. No. Q. Less than a million dollars? A. Yes. (Transcript, page 9, line 23 through page 10, line 3) The following testimony elicited by Respondent's counsel of the Petitioner on cross examination also pertains to his net worth: Q. When you're identifying your net worth, what exactly are you considering? A. Well, net worth is all my assets minus my liabilities. Q. All of your personal assets? A. Which are far and few between (sic) today. Q. Do you have business assets? A. No. Q. Do you own any property? A. Lot 75. Q. Any property other than Lot 75? A. I own three lots, small lots in Plantation Key. Q. Are they developed or undeveloped? A. No, they're undeveloped. Q. Do you know how much they're worth? A. They're valued at fifteen thousand per lot. Q. They're not on the water? A. Not on the water. Q. Lot 75, do you know what that property's worth? A. That property is worth about a hundred and seventy-five thousand. Q. Without the house on it? A. Without the improvements, yes. Q. How about in its improved condition? A. I would say, in the improved condition, with this home, it would be about five hundred thousand. Q. Okay. Other than the real estate, do you have any personal or business investments, stocks or -- A. No. Q. No? A. Just my condo. (Transcript, page 10, line 8 through page 11, line 13.) There was no other evidence presented as to Petitioner's net worth. While the foregoing testimony establishes that as of May 15, 1995, Petitioner had a net worth of less than two million dollars, it does not establish that his net worth was below that figure in 1993 when the Department initiated its actions against him. SUBSTANTIAL JUSTIFICATION The Department's appeal initially raised several issues. All issues in the underlying proceeding but one were voluntarily dismissed by the Department either prior to the hearing or at the hearing. The only issue litigated at the formal hearing in DOAH Case Number 93-7165DRI was the appropriate setback from the portion of the beach-berm complex located on the subject property known to serve as an active nesting or resting area of marine turtles. Pertinent to this proceeding, Section 9.5-345(3)(f), Monroe County Code, provides: f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; There was no dispute in Case 93-7165DRI that the turtle nesting setback applied to Mr. Snowman's property. The dispute was how to apply the setback. There was a bona fide factual dispute as to the extent of the beach berm complex on the subject property that should be considered to be "beach berm complex which is known to serve as an active nesting or resting area of marine turtles" within the meaning of the setback ordinance. The Department established that it followed its standard procedures in deciding to appeal the subject development order. The Department maintains a field staff in the Florida Keys that routinely reviews development orders issued by Monroe County for consistency with the land development regulations, the Monroe County comprehensive plan, and Chapters 163 and 380, Florida Statutes. The permit package typically reviewed, and reviewed in this case, includes the permit, a permit conditions sheet, surveys, and site plans. The Department staff usually reviews a biological survey or habitat evaluation index, reviews the County's entire file, reviews aerial photographs and conducts a field assessment. In this case, the Department also looked at records of the Department of Natural Resources and of the Save A Turtle volunteer environmental group. In this case, the Department conducted a field assessment of Mr. Snowman's lot and measured the point it considered to be the landward extent of the turtle nesting setback line. Kate Edgerton, an experienced biologist employed by the Department, measured the point the Department asserted was the landward extent of the turtle nesting setback line. Ms. Edgerton made a good faith assessment of the beach berm complex and considered the property to contain one beach berm complex. (Transcript, DOAH Case 93-7165DRI, page 166, line 17.) Ms. Edgerton testified in the underlying proceeding that she considered herself bound by the definitions in the Monroe County land use regulations and that she believed herself to be applying the pertinent definition when she measured the setback line. (Transcript, DOAH Case 93- 7165DRI, page 163, lines 20-23.) Following field staff review, a report is prepared and forwarded to Tallahassee for review by additonal staff, including the Department's administrator of the critical state concern program. Department staff in Tallahassee review the field staff report and participate in formulating a recommendation as to whether to appeal the permit. The appeal decision is then made either by the Department Division Director or by the agency head. Each material step in the Department's customary practice of reviewing permits was followed in reviewing the subject permit. Section 9.5-4(B-3), Monroe County Code, contains the following definition of the term "beach berm" that was found to be pertinent to the underlying proceeding: (B-3) "Beach berm" means a bare, sandy shore- line with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. The term "berm" is identified in the Monroe County comprehensive plan as . . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm. At the formal hearing in the underlying appeal, there was conflicting evidence as to the extent of the beach berm complex on the subject property. The Recommended Order found that there were two distinct ridges located on the subject property. The issue of whether both ridges could be considered part of the "beach berm complex" was one of first impression. Succinctly stated, it was the position of the Department in the underlying appeal that both ridges were in an area of potential habitat on a beach that is known habitat and it asserted the position that both ridges should be considered to be one beach berm complex. The Department asserted the position that the setback should be measured from the landward extent of the second ridge (the more landward of the two ridges). Monroe County had measured the setback from the landward extent of the first ridge. Mr. Snowman agreed with the County's determination of the setback. Mr. Snowman presented evidence that the County had, for several years, applied the setback from the landward extent of the first ridge and argued that, based on the foregoing definitions each ridge should be considered to be a separate beach berm, but that only the first should be considered to be a beach berm. The Department presented evidence that the County had applied the setback provision in an inconsistent manner by measuring from the crest of berms in some cases and measuring from the landward extent of berms in other occasions. The Recommended Order rejected the Department's position and concluded that the definition of "beach berm" contained in Section 9.5-4(B-3), Monroe County Code, and the description of "berm" in the comprehensive plan were unambiguous. Although the Department argued that other provisions of the code and comprehensive plan supported their construction of the setback requirement, it was concluded that the issues should be resolved based on the unambiguous definition of "beach berm". It was also concluded that no deference should be afforded the Department's construction of the term "beach berm" because there is a plain and unambiguous definition of the term that is a part of the Monroe County Code. It was observed that "[w]hile a greater setback may better serve the goals of the comprehensive plan, as argued by the Department, the imposition of a greater setback requirement should come from a change in the Monroe County Code." This observation was made because the Department had found support for its interpretation of the setback requirement from other parts of the code and comprehensive plan. This case involved bona fide disputed issues of material fact and legal issues that were of first impression. It is found that those issues, although resolved against the Department following the formal hearing, were of sufficient merit to substantially justified the Department's actions in initiating the underlying appeal.
Findings Of Fact The Respondent. The Respondent, Charles Polk, served as the President of Daytona Beach Community College from 1974 to 1990. [Stipulated Fact.] Mr. Polk resigned as President of Daytona Beach Community College in 1990. Mr. Polk's Purchase of Real Estate from Anargyros N. Xepapas. In November, 1985, Mr. Polk and his wife purchased a life estate and one-half interest in a condominium unit from Anargyros N. Xepapas. Mr. Xepapas owned the other one-half interest in the condominium unit. [Stipulated Fact.] The purchase price of the life estate and one-half interest in the condominium unit was $150,000.00. [Stipulated Fact.] The weight of the evidence failed to prove that this price was not the fair market value or that the transaction was not an arms-length transaction. Under the terms of the agreement, Mr. Polk and his wife were required to pay $30,000.00 immediately. They subsequently executed and delivered to Mr. Xepapas a note and mortgage for the remaining $120,000.00. [Stipulated Fact.] Mr. Polk was a mortgagor and Mr. Xepapas was a mortgagee. Under the terms of the agreement, Mr. Polk was required to pay maintenance fees of approximately $5,000.00 per year, taxes, insurance and all other expenses of the unit, which totaled approximately $14,000.00 per year. [Stipulated Fact.] Mr. Xepapas agreed to maintain the payments on the first mortgage. [Stipulated Fact.] Following the closing, Mr. Polk paid Mr. Xepapas an additional $60,000.00 on the mortgage, reducing the principal balance to $60,000.00. [Stipulated Fact.] A warranty deed was provided to Mr. Polk for the purchase of the property. [Stipulated Fact.] Neither the deed nor the mortgage were recorded. [Stipulated Fact.] Mr. Polk and his wife used the condominium as their residence. [Stipulated Fact.] Mr. Xepapas action in selling the condominium to Mr. Polk and his wife was a business transaction. Mr. Xepapas. Mr. Xepapas is an architect and developer who designs, builds, and sells property in the Daytona Beach area. [Stipulated Fact.] At the time Mr. Polk purchased the one-half interest in the condominium unit from Mr. Xepapas, Mr. Xepapas was the owner of the condominium building in which the unit was located. [Stipulated Fact.] In addition to being the owner of the condominium building at issue, Mr. Xepapas was the architect, developer and contractor for the condominium and for other condominium buildings in the areas. Mr. Xepapas was trying to sell the condominium units as part of his business because of cash-flow problems. [Stipulated Fact.] The condominium sales market was "soft" and Mr. Xepapas was trying to eliminate the carrying costs for unsold units. Mr. Xepapas sold a total of four condominium units pursuant to an arrangement similar to the arrangement by which he sold the condominium unit to Mr. Polk. Mr. Xepapas had made offers to sell one-half interests in condominium units to various other persons besides Mr. Polk. [Stipulated Fact.] Mr. Xepapas was a sole proprietor. He entered into his relationship with Mr. Polk in his capacity as a sole proprietor. Mr. Xepapas has known Mr. Polk for ten to fifteen years and considers himself a friend of Mr. Polk. [Stipulated Fact.] Mr. Xepapas' Business with Daytona Beach Community College. In 1987, the Board of Trustees of the Daytona Beach Community College decided to expand the College's educational facilities by obtaining a new center in the Deltona area. [Stipulated Fact.] In September, 1987, the Board of Trustees instructed staff to develop a request for proposal for the design and construction of the facility which would be leased to the College. [Stipulated Fact.] Mr. Polk was involved to some extent in the decision as to whether the new center should be purchased or constructed, and whether it should be acquired through a long-term lease/purchase agreement. In response to the advertisement of the request for proposal in September, 1988, Mr. Xepapas submitted a proposal. [Stipulated Fact.] There were a total of nine persons or businesses that responded to the request for proposal for the Deltona facility. Mr. Polk knew that Mr. Xepapas had picked up a bid proposal package and, therefore, believed that Mr. Xepapas would submit a proposal. Mr. Polk appointed the committee which reviewed the proposals. This committee ultimately narrowed the acceptable proposals to two, including Mr. Xepapas, and directed that those two proposers submit final proposals. In January, 1989, Mr. Xepapas, in his capacity as a sole proprietor, was the successful bidder on the contract; however, there is no evidence to indicate that Mr. Polk abused his position in order to ensure this result. [Stipulated Fact.] Mr. Xepapas and Mr. and Mrs. Polk were co-owners of the condominium prior to and at the time that Mr. Xepapas was awarded the Daytona Beach Community College contract. Ultimately, Mr. Xepapas was not able to fulfill his obligations under the contract with Daytona Beach Community College. Although the evidence failed to prove that Mr. Polk asserted any influence over the decision to award the contract to Mr. Xepapas, Mr. Polk was involved to some small degree in the award of the contract to Mr. Xepapas. The evidence failed to prove that Mr. Polk disclosed his co-ownership of the condominium with Mr. Xepapas to the Board of Trustees of the Daytona Beach Community College, that he refused to participate in any way in the bidding process or that he attempted to take the more drastic step of severing his relationship with Mr. Xepapas while the bidding process was going on. In May, 1989, Mr. and Mrs. Polk ultimately quit claim deeded the property to Mr. Xepapas. The evidence failed to prove why. They, therefore, lost their investment in the property. Mr. Polk also resigned as President of Daytona Beach Community College as a result of the allegations concerning his relationship with Mr. Xepapas.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Charles Polk, violated Section 112.313(7), Florida Statutes, as alleged in Complaint No. 89-80. It is further RECOMMENDED that Mr. Polk be subjected to public censure and reprimand. DONE and ENTERED this 13th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-11. 3 13. 4 14-16. 5 16 and 18. 6 4, 12 and 19-20. 7 Hereby accepted. 8 3, 21, 27-28 and 30. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 13. 3 3, 11 and 14. 4 20. 5 16. 6 4 and 17-18. 7 5 and 8-9. 8 6-7. 9 21. 10 22. 11 24. 12 26 and hereby accepted. See 23, 27 and 30. 13 27 and 30. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 David A. Monaco, Esquire Post Office Box 15200 Daytona Beach, Florida 32015 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Whether the Petitioners, and each of them, have standing to bring the instant action before the Division of Administrative Hearings. Whether the 5500 North Corporation has meets the requirements set forth in Section 161.053, Florida Statutes, and Rule 16B-33, Florida Administrative Code, for obtaining a permit to construct a structure seaward to the coastal construction control line (CCCL).
Findings Of Fact The Department of Environmental Protection, f/k/a Department of Natural Resources, is the state agency charged with the responsibility of regulating coastal construction under Chapter 161, Florida Statutes. 5500 North Corporation (Respondent/Applicant) is the owner of the property located at 5600 North Atlantic Avenue, Cocoa Beach, Brevard County, Florida 32931. 5500 North Corporation submitted an application for a coastal construction control line (CCCL) permit to build on the vacant portion of its property, a seven (7) story building, along with required access drives and parking, as an addition to the Cocoa Beach Days Inn Hotel complex. The site of the proposed Days Inn Tower fronts on the Atlantic Ocean and is located three (3) miles south of Port Canaveral, near DNR survey monument R-16. The application and attached document were compiled and submitted to the Department of Environmental Protection by Plata Engineering, Inc., and consisted of the following documents: Application to the Department for the proposed construction of the building, consisting of three pages, front and back, six pages total. A legal description of the property, and a Warranty Deed for the property demonstrating ownership in 5500 North Corporation. Reduced certified survey of the site, showing control lines and other required information. Reduced Site Plan prepared by Plata Engineering, Inc. Section C - which is a section through the site plan, showing the dune configuration in relation to the proposed building and the construction control lines. A depiction of a section through the proposed building and some of its structural elements. Full size drawing of the proposed site. Turtle assessments form with attached lighting specifications of the manufacturer, and aerial of the site attached. Structural Design Calculations. Complete set of Building Plans, dealing with floor planning, and the structural elements of the calculations that were submitted with the structural calculations. The application was deemed complete, and on May 20, 1993, the Department issued a proposed Final Order issuing Permit Number BE-760 for the proposed structure. Standing of Petitioners Petitioner, Carole Pope, resides in the City of Rockledge, Brevard County, Florida. She is the owner of Lot 11, Block 101 of the platted subdivision known as Avon-By-The Sea which is located in unincorporated Brevard County, north of the existing north boundary of the City of Cocoa Beach. A duplex dwelling unit is located on the parcel. Petitioner occupies one unit annually during the summer. Petitioner Pope's property is not adjacent to the property where the proposed Days Inn Tower is to be located. The property is located approximately three blocks directly north of the proposed building and measures 475 feet east- west by 50 feet north-south and is bounded on the east by the Atlantic Ocean. Petitioners, Hugh and Cora Harris, own property located at Lot 13 of replat of Blocks 104 and 105, Avon-by-the Sea, in the unincorporated land of Brevard County, which borders on the City of Cocoa Beach. Petitioners' property is located across Young Avenue, and north of the property owned by 5500 North Corporation. The Harris's property contains a single family dwelling unit and is adjacent to the property were the proposed Days Inn Tower is to be located. Petitioners, Patricia A. and Eugene A. Wojewoda, own a unit at the Cocoa Beach Towers, a multi-family condominium, which is located north of the property owned by 5500 North Corporation, across Young Avenue, in the City of Cocoa Beach. The Wojewoda's unit is located on property which is adjacent to the property where the proposed Days Inn Tower is to located. Petitioners Wojewodas are Real Estate Brokers and owners of Professional Touch Realty, Inc. One of their four offices is located at 108 Young Avenue, immediately across the street and north of the subject property. Petitioners, Howard and Martha Crusey, own a unit, which they rent out, in the Cocoa Beach Towers, which is located north and adjacent to the property owned by 5500 North Corporation. Petitioners reside at 430 Johnson Avenue in Cape Canaveral, Florida. The Department sent out a notice for public comment to each of the immediate adjacent property owners. Existing Uniform and Continuous Line of Construction As part of the application process, the Department made a determination of the existing line of uniform and continuous construction. The existing line of uniform and continuous construction is a theoretical line that goes from the most seaward extent of the two adjacent structures, where adjacent structures exist, and extends north and south along the seaward edge of the structures. In the instant case, there is historical development of major habitable structures on either side of the parcel for which the proposed building is being constructed and which are co-terminus with the prior CCCL. The footprint of the proposed Days Inn Tower does not extend seaward of the existing uniform and continuous line of construction, although a new structure (Discovery Beach) north of the Cocoa Beach Towers has been constructed landward of the current CCCL. The existing structures, which form the existing line of uniform and continuous construction, have not been unduly affected by erosion. The property was purchased by 5500 North Corporation in 1988. The property was commercially developed with the existing hotel buildings between 1959 and 1962, and the site has been operated as a hotel since that time. The footprint of the building was set by the engineers based on the parking requirements of the City of Cocoa Beach, and environmental concerns. It was determined that if the parking were located on the seaward side of the building, there would be drainage problems, and the need for a storm water treatment system for the parking lot. With the parking lot located landward of the proposed building, there will be no drain off to the side areas, but rather drain off would be to the middle of the property where the exfiltration system is located. The parking lot located landward of the proposed building meets the City of Cocoa Beach parking requirements and the drainage requirements. When siting the footprint of the proposed building, the engineers also took into consideration the fact that if the parking were located on the seaward side of the proposed building, the headlights would shine out to the beach and possibly impact sea turtles nesting. The applicants stated that construction seaward of the control line or 50-foot setback is considered necessary for reasonable use of the property, for the following reasons: The proposed building is basically an addition to a completion of the original concept of the overall hotel complex that was never completed in the past due to either financial or room availability need. The proposed placement seaward of the CCCL can be attributed to the configuration of the existing on-site buildings and the require- ment to satisfy the City of Cocoa Beach's extensive parking and limited access point requirements that have been subjected to this proposed site development. Please note that the proposed building is not being placed seaward of the existing line of continuous construction that has been established by the adjacent buildings to the north and the south. The Department determines necessity based upon the impacts the proposed structure will have on the active beach, and the dune system, and the neighborhood properties including the subject property, how the property is zoned, and whether it is situated behind the existing continuous line of construction. It is the Department's opinion that if the proposed building is in compliance with the standards established in Chapter 16B-33, F.A.C., the necessity of the proposed building has been justified. Impacts to the Beach-Dune System The greater weight of evidence supports the conclusion that the shoreline fronting the site of the proposed Days Inn Tower is stable. This section of the coastline has historically been accretional, and still continues to be accretional. There exists adequate evidence of current littoral trends. There exists accepted methodologies for determining evidence of expected wind, wave, hydrostatic and hydrodynamic forces associated with the design storm event which was presented in 5500 North Corporation's application for CCCL permit. Based on the 1989 Brevard County Study conducted by Olsen and Associates, Inc., there is no erosion at the location of the proposed building, instead the shoreline is prograding seaward instead of landward. Therefore, the shoreline is at least stable or accretional. Based on its in-house analysis, the Department of Environmental Protection conservatively adopted an erosion rate of one foot per year, which is considered a relatively minor erosion rate. Based on the Department of Environmental Protection's projection of the erosion for the area being one foot per year, the location of the proposed building lies well in excess of 200 feet landward of the thirty-year seasonal high water line. Although the proposed structure extends 118 feet seaward of the CCCL, the setback of the proposed building from the existing dune line is significant; therefore, there was no evidence of a threat of impact on the beach, to the beach or dune system as a result of the construction at the specific site. There are existing devices (i.e., an existing fence on the property which funnels people into boardwalks so that people cannot walk uncontrolled on the beach dune system) implemented in Brevard County and specifically on the site which will help manage people impacts as well. The setback between the dune and the proposed construction qualitatively relates to the ability of the site to recover after a one-hundred year storm. If a structure is located too far seaward, either immediately adjacent to or on top of the dune, it would inhibit the natural storm recovery process. The proposed building is set a significant distance landward of the dune formation itself, so there will be adequate room for the dune to recover in the future should there be a one-hundred year storm event. The proposed structure is located at a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and the natural recovery following storm induced erosion. The proposed construction will not have a cumulative impact that will threaten the beach or dune system or its recovery potential following a major storm event. low. Impacts to Adjacent Property Owners The probability of potential impacts to adjacent property owners is One reason the proposed building will not have adverse impacts to adjacent properties is that the proposed building is located significantly landward, and does not go further seaward than the existing line of construction. The adjacent buildings were constructed landward of the previous CCCL. The nature of the design associated with the particular project or the structural components of the design also minimize the impact to the parcel and to adjacent parcels. The first feature of the design of the proposed building is that the major habitable floors of the building are above the elevation of the one- hundred year storm and wave activity on top of the storm surge, so they will not be impacted by the water height or the wave activity of the storm. The second feature of the design of the proposed building is that everything below the habitable floors is designed to break away and lie down during any impact by wave activity, which allows the storm to go through the building rather than having those forces exerted on the building itself. The frangible driveway is designed so that the individual stones will fall as the grade falls, and most of them will end up buried in the event of a storm. The third feature of the design of the proposed building is that the building is elevated on a pile foundation which is sunk to a depth which is sufficient to accommodate for the anticipated erosion of a one-hundred year storm, and the pile caps are sunk well into the ground so that they do not contribute to erosion. Therefore, the building has been designed to withstand the one-hundred year storm, and the dynamics of the storm are allowed to go through the building and to be dissipated, in contrast to endangering the building or endangering adjacent properties. Due to the fact that the proposed building is "super-elevated and the portions that are actually impacted by the one-hundred year storm being frangible," the proposed building will not impact the adjacent properties. The proposed Days Inn Tower would serve to protect the adjacent Cocoa Beach Towers, and Petitioner Harris's property, by blocking the impact of a storm coming from the southeast. The proposed structure is designed so as to minimize any expected adverse impact on the beach dune system or adjacent properties or structures and is designed consistent with Section 16B-33.005, Florida Administrative Code. The proposed building meets the requirements of Chapter 161, Chapter 16B-33, Florida Administrative Code. Structural Design of Proposed Building The applicant provided adequate engineering data to the Department concerning the construction design of the building. The structure is designed in accordance with the minimum building code adopted for the area pursuant to Section 553.70-553.895, Florida Statutes. The proposed building is designed in accordance with the local code, and, in the opinion of the structural engineer who designed the building, either meets or exceeds the required codes. The proposed building is designed in accordance with Section 6, American National Standards/American Society of Civil Engineering 7-88 (July 1990) "Minimum Design Loads for Buildings and Other Structures", and has a minimum basic wind speed of 110 miles per hour. The proposed building is designed so that the building and its components will not become airborne missiles. The plans for the windows and doors require that they meet the 110 miles per hour wind loads. The proposed building is made of concrete reinforced masonry, and does not have bricks or attached masonry which could detach in a storm and become airborne. There are no substantial walls or partitions to be constructed below the level of the first finished floor, except for the elevator and stairs, seaward of the CCCL. The walls on the first floor are frangible walls which are designed to resist the 110 mile per hour wind pressure, but they lie down or collapse into the erosion hole created under wave surge pressure. The frangible walls are made of 4-inch thick concrete with reinforcing rods inside them, and are cut into 4 foot by 4 foot panels. The Department of Environmental Protection requires that any walls constructed below the one-hundred year storm surge plus storm wave elevations be frangible walls. The structural design considered the hydrodynamic loads which would be expected under the conditions of a one-hundred year storm event. The calculation for wave forces on building foundations and building superstructures is based on minimum criteria and methods given in professionally recognized documents accepted by the Bureau of Coastal Engineering and Regulation with the Department. The structural design considered hydrostatic loads which would be expected under the conditions of maximum water height associated with a one- hundred year storm event. The calculations for hydrostatic loads considered the maximum water pressure resulting from a fully peaked, breaking wave superimposed on the design storm surge. Both free and confined hydrostatic loads were considered in the design calculations. Hydrostatic loads which are confined were determined using the maximum elevation to which the confined water would fully rise if unconfined. Vertical hydrostatic loads were considered as forces acting both vertically downward and upward; however, there is no action upward because the maximum water level is at midlevel of the first floor and does not reach the second floor. The structural design considered the hydrodynamic loads which would be expected under the conditions of a one-hundred year storm event. The calculations for hydrodynamic loads considered the maximum water pressure resulting from the motion of the water mass associated with a one- hundred year storm event. Full intensity loading was applied on all structural surfaces above the design grade which would effect the flow velocities, which are above the first floor and are not reached by the wave surge. The proposed building is elevated on, and securely anchored to, an adequate pile foundation in such a manner as to locate the building support structure above the design breaking wave crests or wave uprush as superimposed on the storm surge with dynamic wave set up of one-hundred year storm. The piling foundation is designed to withstand anticipated erosion, scour, and loads resulting form a one-hundred year storm, including wind, wave, hydrostatic and hydrodynamic forces, and the pile caps are located below the erosion line as indicated by the Department's information and graphs. The elevation of the soil surface used in the calculation design grade is less than that which would result from the anticipated beach and dune erosion due to the one-hundred year storm event. The erosion calculations for foundation design account for all vertical and lateral erosions and scour producing forces. The pile caps are set below the design grade which includes localized scour, and are designed for the erosion of soil during the one-hundred year storm event. The piles are driven to a penetration which achieves adequate bearing capacity taking into consideration the anticipated loss of soil above the design grade, based on information provided by the geotechnical engineer's recommendation and the Department's requirements. The design plans and specifications submitted as part of the permit application for the proposed Days Inn Tower are in compliance with the standards established in Rules 16B-33, Florida Administrative Code. Turtle Impacts There is a two prong test which the proposed structure must meet to determine if the proposed building would have an adverse impact on nesting sea turtles. First, the proposed structure must not occupy marine turtle habitat, and second, the proposed structure's lighting must be adequate to eliminate adverse impacts to marine turtles. The effects of pedestrian traffic or flashlights on the beach are not considered by the Department when reviewing a permit application for adverse impacts to the marine turtles. The proposed building is sited significantly landward of the nesting beach, which is evidenced by the 75-foot wide dune stretch; therefore, it is not anticipated that the structure will result in any direct mortality of any marine turtle, nor would the building result in the degradation of the marine turtle nesting habitat. The proposed seven story structure will not occupy marine turtle habitat. The permit requirement to do dune restorative work, proposed by the Department, enhances the marine turtle habitat by further building the dune and enhancing the dune. Although the turtles do not nest beyond the dune crest, the dune is an integral part of protecting the habitat. There is a potential that the building, due to its height, could enhance marine turtle nesting habitat by blocking out the ambient glow from the City of Cocoa Beach which would create a dark beach directly in front of the proposed structure which could attract nesting. The applicant submitted a lighting plan to the Department which complied with the guidelines that are established in the information form entitled "Assessment to reduce impacts to marine turtles for lighting to reduce adverse impacts associated with coastal lighting." There are two main components of the lighting plan associated with the proposed building: the parking lot lights and the structural lighting. The parking lot lighting is designed as low-level Ballard-style lighting which is only 48 inches above the grade and emits light in a downward direction which will not be directly visible from the beach. The parking lot lighting design is the type recommended by the Department for parking lots, and is a good lighting design. The Department also recommends that an applicant plant hedges or landscape features to block out parking lights. The applicant is proposing to plant hedges in front of the 18 parking spaces that are on the seaward side of the proposed building. The structural lighting plan does have lighting on the seaward facade of the proposed building, which is not recommended by the Department, but the lights are designed to eliminate or significantly reduce the impact to marine turtles. The lights consist of canister, shielded, down-casting lights on the balconies which house a yellow bug lamp which is less impactive to turtles, and which is acceptable to the Department. The Department issued an approval letter regarding the proposed building to the project engineer which contained permit conditions for the protection of the marine turtles in association with the project. The permit conditions are as follows: No construction, operation, transportation or storage of equipment or materials is authorized seaward of the existing chain link fence located approximately 175 feet seaward of the coastal construction control line. No temporary lighting of the construction area is authorized at any time during the marine turtle nesting season (March 1 through October 31). All permanent exterior lighting shall be installed and maintained as depicted in the approved lighting schematic. No additional permanent exterior lighting is authorized. c All windows and glass doors visible from any point on the beach must be tinted to a transmittance value (light transmission form inside to outside) of 45% or less through the use of tinted glass or window film. Pursuant to the Department's requirements, the proposed construction will not have an adverse impact on nesting sea turtles, their hatchlings, or their habitat. Vegetation Impacts The vegetation patch on the dune system is approximately seventy five feet wide under today's conditions, and is probably growing to some degree. The vegetation system is basically comprised of a low-level dune which is planted both naturally and artificially with indigenous, salt-tolerant type vegetation, and sea oats. The existing line of construction which the proposed building is set behind is well landward of the zone of indigenous vegetation. Special condition #4 contained in the permit issued by the Department requires the applicant to convert some of the existing sodded area between the vegetation limits and the proposed construction to plantings with indigenous vegetation, which will serve to enhance the dune system. The native beach vegetation will be adequately protected by the permit conditions, given the location of the construction. Local Government Approvals On June 3, 1992, the Cocoa Beach Board of Adjustment granted a variance to the CCCL to the 5500 North Corporation for construction of the proposed building. Challenges to decisions of the City's Board of Adjustment is to the circuit court. In the instant case, the time for challenging the decision of the Board has expired. The City of Cocoa Beach Planning Board has the authority to approve site plans for site specific construction. The City's Planning Board has the responsibility of ensuring that the site plan conforms with the Comprehensive Plan and to recommend changes, if needed, to the City Commission. On July 13, 1992, the Cocoa Beach Planning Board voted to approve the site plan for the proposed building submitted by the 5500 North Corporation. The decision of the Planning Board granting approval of the 5500 North Corporation's site plan showed part or all of the building was seaward of the CCCL. The Petitioners did not file an appeal of the Planning Board's decision with the City Commission. Nor did they challenge the Planning Board's action in the circuit court. The 5500 North Corporation was not required to apply to the city commission for an amendment to the Cocoa Beach Comprehensive Plan in order to permit the proposed hotel tower to be located in the designated high hazard area. On July 6, 1993, the Building Official issued a building construction permit to the 5500 North Corporation for the proposed building, which has been subsequently extended for an unknown period of time. There are no other permits or local government requirements which have not been met by 5500 North Corporation. The applicant submitted written evidence to the Department from the City of Cocoa Beach, who has jurisdiction over the project, which stated that the project does not contravene local setback requirements, or zoning and building codes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection issue Permit Number BE-760 to the 5500 North Corporation, subject to the conditions proposed in the proposed Final Order. DONE and ENTERED this 24th day of March, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 24th day of March, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioners' Proposed Findings of Fact Accepted in substance: paragraphs 1 (in part) 2, 3 (in part), 4, 5, 6, 7, 8 (in part), 10, 12 (in part), 13, 16 (in part), 17, 18, 19, 23 (in part), 24 (in part), 26 (in part), 27 (in part), 29 (in part), 31 (in part), 38 (in part), 49, 51, 63, 68 (in part), 69, 70, 71, 73 (in part). Rejected as against the greater weight of evidence: paragraphs 15 (in part), 16 (in part), 27 (in part), 46, 50 (in part), 82 (in part). Rejected as subsumed, argument or Conclusions of law: paragraphs 1 (in part), 14, 15 (in part), 16 (in part), 21, 23 (in part), 25, 26 (in part), 27 (in part), 28, 29 (in part), 30, 31 (in part), 32, 33, 34 (in part), 35, 36, 37 (in part), 38 (in part), 39, 40, 41, 42, 43, 44, 45, 47, 48, 50 (in part), 52, 56, 57, 58 (in part), 59 (in part), 61, 62, 64, 65, 66, 67, 68 (in part), 72 (in part), 73 (in part), 76, 77, 78, 79, 80, 81, 82 (in part), 83, 84. Rejected as irrelevant or immaterial: paragraphs 3 (in part), 5, 8 (in part), 9, 11, 12 (in part), 20, 22, 24 (in part), 34 (in part), 53, 54, 55, 58 (in part), 59 (in part), 60, 72 (in part), 74, 75. Respondent's Proposed Findings of Fact: Accepted in Substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 (in part), 17, 18, 19, 20, 22, 23, 24, 25, 27, 29, 30, 35, 36 (in part), 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 92, 93 (in part) 94, 95, 96, 97, 98, 99, 100, 101, 102, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118. Rejected as against the greater weight of evidence: paragraph 16 (in part). Rejected as subsumed, argument or irrelevant and immaterial: paragraphs 21, 26, 28, 31, 32, 33, 34, 36 (in part), 61, 87, 88, 89, 90, 91, 93 (in part), 103. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Hugh and Cora Harris (pro se) 208 Young Avenue Cocoa Beach, Florida 32931 Howard and Martha Crusey (pro se) 430 Johnson Avenue, Apartment #304 Cape Canaveral, Florida 32920 Carole Pope (pro se) 715 Rockledge Drive Rockledge, Florida 32955 Patricia and Eugene Wojewoda 830 North Atlantic Avenue Cocoa Beach, Florida 32931 Dana M. Wiehle, Esquire Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road, MS-35 Tallahassee, Florida 32399 Wilbur E. Brewton, Esquire Kelly Brewton Plante, Esquire Taylor, Brion, Buker & Greene 225 South Adams Street, Suite 250 Tallahassee, Florida 32301
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should grant the application of the City of Destin (City) and Walton County (County) for a Consolidated Joint Coastal Permit (JCP) and Sovereign Submerged Lands Authorization (Application) to restore a 6.9 stretch of beach in the City and County.
Findings Of Fact The Gulf of Mexico beaches of the County and City were critically eroded by Hurricane Opal in 1995. The erosion problem was identified by DEP, which placed the beaches on its list of critically-eroded beaches, and by the County and City, which initiated a lengthy process of beach restoration through renourishment (also called maintenance nourishment.)1 The process, which included an extensive studies2 and construction design, as well as pre-application conferences with DEP staff, culminated in the filing of the Application on July 30, 2003. The Application proposed to dredge sand from an ebb shoal (i.e., a near-shore) borrow area south of (i.e., offshore from) East Pass in eastern Okaloosa County, using either a cutter head dredge (which disturbs the sand on the bottom of the borrow area and vacuums it into a pipeline which delivers it to the project area) or a hopper dredge (which fills itself and is moved to the project site). On the project site, heavy equipment moves the dredged sand as specified in the design plans. The project is executed in this manner and progresses along the beach, usually at a pace of about 300-500 feet a day. Each day work is in progress, public access to the beach is restricted for a length of about 500-1000 feet in the immediate vicinity of the area of beach being worked. Water Quality Increased turbidity is the primary water quality concern in a project of this nature. Increased turbidity can adversely impact submerged seagrasses and hard-bottom habitat, along with the benthic communities depending on them. When sand in the borrow area is disturbed by dredging, sand and silt become suspended and increase turbidity to some extent and for some duration, depending primarily on the nature of the bottom material and the dredging method. (The cutter head dredge vacuums most if not all of the disturbed sand and silt into the pipeline while, by comparison, the hopper dredge would result in higher turbidity in the water in the borrow area.) Sand delivered to the project site via pipeline must remain suspended in water for transport. When the sand is deposited on the beach, the excess water, with suspended particulate matter, will drain off and return to the Gulf of Mexico. Even if hopper dredges are used, and if material is deposited on the project site other than via pipeline, some of the material will be deposited in the littoral zone, and some material deposited landward of the waterline will be inundated by the tides and wave action and potentially re-suspended in water in the littoral zone. If the water is turbid upon discharge in the littoral zone, the near-shore can become more turbid. Sand Quality The primary determinant of the amount and duration of turbidity generated in the borrow area and in the littoral zone of the project site is the quality of the bottom material in the chosen borrow area. The coarser the material, the less turbidity. The best quality bottom material usually is found in the kind of borrow area proposed for use in the Application. Sand in the borrow area came from some of Florida's finest beaches. It has been cleaned of fine material (silt) not only by wave action but also as the sand moved along shore in the littoral zone and by the currents in the East Pass inlet. Numerous tests of the bottom material in the proposed ebb shoal borrow for the project indicate that it generally has less than one percent silt. Expert witnesses for the City, County, and DEP testified that, with such low silt content, turbidity increases of no more than 5-10 Nephalometric Turbidity Units (NTUs) above background levels are expected at the edge of the mixing zone--150 meters down- current from the borrow area, and down-current and offshore from the discharge points on the beach. Moreover, they testified that turbidity levels are expected to return to background levels quickly (i.e., within an hour or so.) SOB and STBR questioned whether the experts could be certain of their testimony based on the test results. But SOB and STBR called no expert to contradict the testimony, and it is found that the expert testimony was persuasive. Standard Mixing Zone Initially, the City and County applied for a variance from the turbidity standards to allow them to exceed 29 NTUs more than 150 but less than 1660 meters down-current from the borrow area, and down-current and offshore from the discharge points, based on Attachment H, the Water Quality Impact analysis in the Application. The analysis was based on an assumption of five percent silt content in the bottom material in the borrow area. SOB and STBR attempted to use the five percent assumption to impeach the expert testimony on water quality. But when the quality of the bottom material was ascertained to be less than one percent, the variance request was withdrawn at DEP's request as being unnecessary and therefore inappropriate. SOB and STBR also argued in their PRO that, if a 1660-meter mixing zone was needed for five percent fines, then a 332-meter mixing zone would be needed for one percent fines. This argument was based entirely on counsel's arithmetic extrapolation. There was no evidence in the record from which to ascertain the validity of the extrapolation. In addition, the evidence was that the bottom material in the borrow area in this case will be less than one percent fines. Shore-Parallel Sand Dike Specific Condition 6 of the Draft Permit requires the permittee to "construct and maintain a shore-parallel sand dike at the beach placement area at all times during hydraulic discharge on the beach to meet turbidity standards prescribed by this permit." The shore-parallel sand dike is essentially a wall of sand built parallel to the shoreline to keep the sand slurry (the mixture of sand and water) being pumped onto the beach from washing back in the water, thereby giving the materials more time to settle out of the water before the water returns to the Gulf of Mexico. Even if this condition were not in the Draft Permit, the City and County would be required to build the dike since it is part of their design for construction of the Project. Turbidity Monitoring The Application included a proposal to monitor turbidity, and the Draft Permit includes the proposed monitoring as a Specific Condition 38. Every six hours during dredging and pumping operations, the City and County are required to sample 150 meters down-current of the borrow area, and down-current and offshore of the discharge point, and report the results to DEP within a week. In addition, Specific Condition 38 requires work to stop if turbidity standards are exceeded, which must be reported immediately. Work may not proceed "until corrective measures have been taken and turbidity has returned to acceptable levels." If more than one exceedence of the turbidity standard is reported, DEP will require the City and County to redesign the project to address and cure the problem. These conditions are part of the reasonable assurance that water quality standards will not be violated. Sediment Quality Control/Quality Assurance Plan Pursuant to Special Condition 4.b. of the Draft Permit, the City and County are required to do a Sediment Quality Control/Quality Assurance Plan, which requires them to measure the quality of the sand as it comes out of the pipeline before it can cause a turbidity problem. If the dredge hits pockets of bad material, which is not expected in this case, work could be stopped before it creates a turbidity problem. Absence of Natural Resources in Project Area DEP performed side-scan sonar tests in the vicinity of both the borrow site and near-shore in the Project area and determined that there were no hard bottoms or seagrasses in either area. Therefore, there are no natural resources within the project area that would be covered or placed in jeopardy by a turbidity plume. Reasonable Assurance Given For all of these reasons, the City and County have provided reasonable assurance that water quality standards will not be violated. Required Riparian Interest Generally, and in the beach nourishment project area, the BOT owns seaward of the mean high water line (MHWL). The City and County own some but not all of the beachfront landward of the MHWL.3 In anticipation of the beach nourishment project, the City and County had the MHWL surveyed as of September 7, 2003.4 The surveys state that the MHWL as of that date shall also be known as the ECL. The surveys also depict the landward and seaward limits of construction and the predicted post-construction MHWL. The surveys indicate that construction is planned to take place both landward and seaward of the ECL. The predicted post-construction MHWL is seaward of the ECL. By resolution, the BOT approved the surveys and established the ECLs for the Project. The City survey was approved, and ECL established, on December 30, 2004; the County survey was approved, and ECL established, on January 25, 2005. The BOT's decisions are being challenged in court. If the decisions are upheld, the BOT intends to file its resolutions and record the surveys. There was no evidence that the City and County have an easement or the consent of all of the other beachfront owners to undertake the proposed beach nourishment project. Some of the other beachfront owners do not consent, including members of SOB and STBR. Standing SOB was incorporated not-for-profit in Florida on January 28, 2004. STBR was incorporated not-for-profit in Florida on February 16, 2004. Both were incorporated to protect and defend the natural resources of the beaches, protect private property rights, and seek redress of past, present, and future unauthorized and/or inappropriate beach restoration activities. No evidence was presented by any party as to whether SOB and STBR have filed their annual reports with the Department of State, and no party filed a Department of State certificate of status as to either SOB or STBR. STBR has six members, all owners of beachfront property in the area of the proposed beach nourishment project.5 SOB has approximately 150 members. These members own approximately 112 properties in the City, approximately 62 of which are beachfront and the rest condominium units of beachfront condominium developments. However, it is not clear from the evidence how many of these beachfront properties are in the area of the proposed beach nourishment project (beyond the four owned by Linda Cherry, who testified). The testimony of Slade Lindsey was sufficient, together with member affidavits, to prove that all six members of STBR use the beaches and waters of the Gulf of Mexico adjacent to the Project area for swimming, fishing, boating, and/or enjoying beach and Gulf vistas. As a result, the construction of the Project will affect their interests at least during the time construction is taking place near their property. If the Project were to result in violations of water quality standards for turbidity, their interests would be affected as long as the violations lasted and perhaps longer if lasting damage to natural resources were to result. However, as found, there will not be any lasting damage to natural resources, and reasonable assurance was given that no water quality violations will occur and that exceedences of water quality standards in the mixing zone will be of short duration, lasting for no longer than an hour. These effects will not be substantial. The evidence was not sufficient to prove that construction of the Project will affect the interests of a substantial number of the members of SOB. First, it was not clear how many of them own beachfront property or even condominium units in developments adjacent to the Project area. Second, the only witness on the subject, Linda Cherry, does not know all of SOB's members and did not state how many of the 39 SOB members who signed affidavits as to their use of the beaches and waters of the Gulf of Mexico adjacent to the Project area are known to the witness. Even if a substantial number would be affected, their interests would be affected no more than the STBR members' interests.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Draft Permit DEP JCP File No. 0218419-001-JC. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent is a certified general contractor and has been issued license number CG CA03134. During November of 1978, Respondent, doing business through the entity of Creative Home Design, Inc., entered into a contract with Dr. Stephen Silverstein to construct a residence in Boca Raton, Florida, for the sum of $180,000. Respondent received from Dr. Silverstein a total of $140,500 for the construction he performed on the Silverstein residence. (Stipulation by the parties) Additionally, Dr. Silvertstein paid certain liens which were filed with regard to the construction performed by Respondent on his residence, to wit: P.N.A. Drywall: $5,260.00 (Petitioner's Exhibit 2) Pentagon Diversified: $3,801.34 (Petitioner's Exhibit 3) American Lumber: $8,217.50 (Petitioner's Exhibit 4) Lone Star Industries, (Petitioner's Exhibits 7 and 8) Inc. $1,293.50 Mack Industries: $4,604.29 (Petitioner's Exhibits 9 and 10) Smith and DeShield: $ 600.00 (Petitioner's Exhibit 11) Certain contractors furnishing labor and materials for the Silverstein residence based on contracts entered into by wit: Respondent also filed liens, to A. A. Marini Septic Tanks, Inc.: (Petitioner's Exhibit 21) $1,700.00 Delano Pools, Inc.: (Petitioner's Exhibit 20) $4,539.00 William D. Adeimy, Inc.: 3/ (Petitioner's Exhibit 16) $3,183.75 Climate Control Services: (Petitioner's Exhibit 17) $1,882.50 Ballavia Construction (Petitioner's Exhibit Company: 24) $5,446.00 Temperature Control: (Petitioner's Exhibit 18) $ 678.00 J. Griffin Painting: (Petitioner's Exhibit 23) $3,795.00 Central Systems, Inc.: $1,018.80 (Petitioner's Exhibit 19) Dr. Silverstein also entered into another contract for the sale of the residence being built by the Respondent whereby Dr. Silverstein agreed to sell the residence to Respondent's son, Joseph Roberts, for the sum of $210,000. (TR pages 5-6) On February 15, 1980, a notice of code violation was issued by the building official for Palm Beach County, Florida stating that the pool which was installed at the Silverstein residence was not completely enclosed by a fence or dense hedge as required by Section 500.14F of the Palm Beach Zoning Code. Respondent has failed to correct that violation. Respondent completed the Silverstein residence to a degree of completion where it could be occupied and he could move into the residence with his family. Thereafter, Dr. Silverstein eventually filed suit and was awarded a judgment evicting Respondent from the residence. (Petitioner's Exhibit 12) Respondent's son, Joseph, failed to consummate the agreement to purchase the residence. Respondent and his family vacated the Silverstein residence and, in the process, removed certain fixtures attached to the residence including carpeting, appliances, door knobs, air conditioning and air handlers, the sprinkler system, light fixtures, vanities, a whirlpool tub, washer, dryer, air conditioning vents, bidet, sprinkling pump timer, and a drop-in range. (TR pages 23-28, 128- 130, and 98-100) Dr. Silverstein filed a claim of loss with his insurance company and was paid a settlement for the loss, which included the certain charges for reinstallation and the reconnection of the various fixtures which had been removed for a total sum of $24,252.02. (Petitioner's Exhibit 13, TR 25-28) The Respondent's Position Respondent contended that he was authorized to occupy the Silverstein residence and this contention is not really in dispute herein. However, it later became necessary for Dr. Silverstein to evict the Respondent and his family from the residence when it became apparent that his son, Joseph Roberts, would not consummate the agreement to purchase the residence of Dr. Silverstein. Respondent admits to taking the fixtures and other items referred to hereinabove. Respondent was without authority to do so. Respondent contends that the various liens which were referred to hereinabove were not valid inasmuch as more than one year had elapsed during the time the work was performed and no claim of lien had been filed within that one- year period. Thus, Respondent contends the claims of lien were defective. Respondent offered no proof of payment of the various claims of lien. Additionally, Respondent states that several of the contractors did not perform work and therefore there were no amounts due and owing those companies. Specifically, Respondent contends that Marini Septic Tank did not install the septic tank but a former affiliate did and that there was an attempt to bill him twice. Additionally, Respondent contends that he paid Ballavia Construction Company for the amount claimed in cash, however he had no receipts or other documentary evidence to substantiate that transaction. As relates to the claim of Griffin Painting, Respondent contends that he paid all amounts due and owing them save $660.00. Respondent failed to introduce evidence to corroborate his claim in that regard and it is therefore rejected. Finally, Respondent furnished releases of liens and an invoice of the claim referred to hereinabove from Climate Control Services, Inc. indicating that they were paid in full. Documentary evidence received and testimony introduced herein substantiates Respondent's position and it is found that he, in fact, paid Climate Control Services, Inc. in full for the services they rendered. (Respondent's Exhibits, 4, 6, and 10) As noted hereinabove, it is found that the Respondent paid the amount due and owing William D. Adeimy, Inc., and a release of lien from that entity was received herein. (Respondent's Exhibit 3)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Respondent's certified general contractor's license number CG CA03134 be revoked. RECOMMENDED this 24th day of May, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1985.
The Issue The issues to be determined is whether the City of Destin (“City”) has demonstrated its entitlement to place dredged material from the maintenance dredging of the East Pass (“East Pass” or “inlet”) entrance channel conducted pursuant to the Consolidated Joint Coastal Permit and Sovereign Submerged Lands Authorization, Permit Number: 0288799-003-JC (“Permit”), in the swash zone east of East Pass in accordance with the Notice to Proceed (“NTP”); and whether the Inlet Management Plan referenced in the NTP is an unadopted rule as described in section 120.57(1)(e), Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Petitioners, David H. Sherry and Rebecca R. Sherry, own Unit 511 at the Surf Dweller Condominium, 554 Coral Court, Fort Walton Beach, Florida. The Surf Dweller Condominium, which is on Santa Rosa Island in the unincorporated community of Okaloosa Island,1/ fronts the Gulf of Mexico, and straddles DEP Reference Monument R-7, which is between three and four miles west of DEP Virtual Monument V-611, and is between five and six miles west of the west side of East Pass. The Sherrys use the beach at their condominium on a daily basis for fishing, crabbing, swimming, walking, running, and general recreation. They also walk or run from Monument R-7 along the beaches to East Pass, and occasionally drive to and use the beaches on the east side of East Pass. Petitioner, John S. Donovan, owns Units 131 and 132 at the El Matador Condominium, 909 Santa Rosa Boulevard, Fort Walton Beach, Florida. The El Matador Condominium is on Okaloosa Island, fronts the Gulf of Mexico, and is approximately five miles west of Monument V-611, and is more than six miles west of the west side of East Pass. Mr. Donovan generally walks the beaches west of his condominium, but does occasionally walk along the beach to Monument V-607, which is the location of a seawall constructed by the Air Force on sovereign submerged lands to protect an Air Force tracking facility. Intervenor, Thomas Wilson, resides at 856 Edgewood Drive, Charleston, West Virginia, and owns a secondary residence at 1530 Miracle Strip Parkway, No. 101-B, Fort Walton Beach, Florida, in the vicinity of Monument R-14. Mr. Wilson uses and enjoys the gulf-front beaches between his property on Okaloosa Island and East Pass. Petitioners’ stated injuries are related to the allegation that the lateral movement of sand from the East Pass areas of influence is from east to west. Placing dredged material in the eastern disposal site would allegedly deprive the beaches in front of their property -- beaches that are miles from the nearest area of influence or spoil disposal site -- of their natural sand supply by cutting off what they allege to be the natural sand flow, causing the beaches in front of their properties to eventually erode. Petitioners alleged no immediate environmental injuries associated with the NTP. Petitioners’ stated objective in this case is to have any sand dredged from East Past to be placed on the western disposal areas at all times. The City is the applicant for the Permit and the NTP, and abuts the east side of East Pass. DEP is an agency of the State of Florida pursuant to section 20.255, Florida Statutes. DEP is the permitting authority in this proceeding and issued the NTP at issue in this proceeding to the City. The NTP was issued on February 2, 2018, without notice of rights language regarding the right to request a hearing or time limits for doing so. Petitioners received a copy of the NTP on October 1, 2018, and filed a challenge more than 14 days later, on November 30, 2018. East Pass Prior to 1928, the connection from Choctawhatchee Bay to the Gulf of Mexico flowed through what is now Old Pass Lagoon. After a storm in 1928, a high-tide breach of the shoreline near the current location of East Pass was formed. In 1929, a record rain event caused waters to rise in Choctawhatchee Bay. Residents of the area dug a relief channel at roughly the present location of East Pass. The waters releasing through the more hydraulically efficient flow path from Choctawhatchee Bay established a channel, which quickly enlarged to become the prominent inlet to the Gulf of Mexico. The permanent channel, now known as East Pass, is the only navigable passage from Choctawhatchee Bay and the Intercoastal Waterway to the Gulf of Mexico between Panama City, Florida, and Pensacola, Florida. East Pass separates the gulf-fronting beaches of the City to its east from the beaches owned by the United States as part of Eglin Air Force Base to the west. The entrance to East Pass is protected by two boulder-mount jetties: a 3,860 foot- long jetty on the west side of the inlet and a 1,210 foot-long jetty on the east side of the inlet. East Pass is an ebb tide dominated inlet, with a sizable amount of sediment moving in and out. When outgoing tidal flow moves though the constriction formed by the jetties, flow velocities are accelerated. When the water, and any entrained sediment, passes the jetties, flow tends to spread out to the east, west, and south, and naturally loses velocity. When the outgoing tidal waters reach a critical velocity where they can no longer carry the sand, the sand drops out of suspension, which forms the ebb shoal. Essentially, the ebb shoal is a large, semi-circular sandbar extending from the mouth of East Pass that was created by the ebb tide carrying sediments south. East Pass is a highly dynamic inlet system. There are processes spurred by the configuration and location of East Pass, tides, waves, and storms that have resulted in currents running to the east and west that change on a frequent basis. The Physical Monitoring Plan (“PMP”), which is part of the Permit, and thus, not subject to challenge in this case, established, for the period of 1996 through 2007, “a trend of west to east longshore transport, resulting in net gain immediately west of [East Pass] and a significant loss of sand along Holiday Isle east of [East Pass].” The PMP further established that a “drift nodal point” existed at East Pass. Longshore transport at uniform coastal locations is generally in one direction. However, when there are wave events coming from varying angles, and where beach contours are not parallel and uniform, or even linear, it is common for transport reversals to occur. The point at which those reversals occur is referred to as a nodal point. That point can be where east and west transport converges, or where it diverges. The shoreline in the vicinity of East Pass has exhibited “quite a few” nodal points over the past decade, resulting in frequent drift reversals and sand transport to the east and the west. The evidence as to the existence and effect of the East Pass drift nodal point, and its affect on the lateral transport of sand in the area, including the East Pass areas of influence, was substantiated by testimony and other evidence introduced at the final hearing. The testimony and evidence that there is no consistent direction of lateral sand transport in the vicinity of East Pass, and no predominant lateral current transporting sand in a westerly direction, is accepted. Evidence to the contrary was not persuasive. East Pass includes a federal navigation channel. The federal navigation channel requires routine maintenance to prevent it from shoaling. On an average, East Pass is dredged in two-year intervals. The last time that East Pass was dredged was in December of 2013. It has now shoaled with sand and become very hazardous for marine traffic. In December of 2018, the City declared a state of emergency relating to the navigational hazards caused by the accumulation of sand in the navigation channel. The Permit On February 26, 2015, DEP issued the Permit, which authorized the City to perform “periodic maintenance dredging of the federally authorized East Pass and Destin Harbor and navigation channels.” The Permit will expire on February 26, 2030. Notice of the issuance of this Permit was published in the Destin Log, a newspaper of general circulation, on December 24, 2014. No challenge to the issuance of the Permit was filed. As it pertains to the issues in this proceeding, the Permit provides that “Dredged material from . . . maintenance dredging activities will be placed in the swash zones of the beaches east and west of East Pass, as specified in the East Pass Inlet Management Plan.” The specific beach spoil placement sites are, as relevant to this proceeding, located “west of East Pass . . . between [DEP] reference monuments V-611 and V-622; and on 2 beach sites situated east of East Pass . . . from R-17 to R-20.5 and from R-23.5 to R-25.5.” Those areas correspond to what have been identified as the “areas of influence,” which are the beach areas east and west of East Pass that are affected by tidal forces generated by the inlet. The specified beach spoil placement sites, being conditions of the unchallenged Permit, are not subject to challenge in this case. The Permit establishes the criteria by which specific work is to be authorized. Specific Condition 5 provides, in pertinent part, that: 5. No work shall be conducted under this permit until the Permittee has received a written notice to proceed from the Department for each event. At least 30 days prior to the requested date of issuance of the notice to proceed, the Permittee shall submit a written request for a Notice to Proceed along with the following items for review and approval by the Department: * * * Prior to the second dredging event authorized under this permit, and each subsequent event, the Physical Monitoring Data, as specified in Specific Condition 9, shall be submitted to select the appropriate placement locations. Specific Condition 9 provides that: Following the initial placement of material on Norriego Point, fill site selection shall be supported by the latest physical monitoring data over a minimum of five years in accordance with the adopted East Pass Inlet Management Implementation Plan (July 24, 2013). All physical monitoring shall be conducted in accordance to the Approved physical monitoring plan dated August, 2014. A notice to proceed for specific projects shall be withheld pending concurrence by the Department that the data support the proposed placement location. The purpose of Specific Condition 9 is to identify, using supporting monitoring data from the eastern and western areas of influence, the “adjacent eroding beach” most in need of sand from the inlet. The requirement that physical monitoring data be used to determine which of the beach spoil placement sites identified in the Permit’s Project Description will receive the spoil from any particular periodic dredging event was to implement section 161.142, Florida Statutes. That section mandates that “maintenance dredgings of beach-quality sand are placed on the adjacent eroding beaches,” and establishes the overriding policy of the state regarding disposition of sand from navigational channel maintenance dredging. East Pass Inlet Management Implementation Plan The East Pass Inlet Management Implementation Plan (“East Pass IMP”) was adopted by Final Order of DEP on July 30, 2013.2/ The East Pass IMP was not adopted through the rulemaking procedures proscribed by chapter 120, Florida Statutes, or DEP rules. Despite a comprehensive Notice of Rights advising persons whose substantial interests could be affected of the means by which the East Pass IMP could be challenged, it was not. There are 44 maintained inlets in Florida. About half have individual inlet management plans. The East Pass IMP is not applicable to any inlet other than East Pass. The East Pass IMP does not require that any quantity of dredged material from the dredging of East Pass be placed at any particular location other than as established in the Permit. Rather, the disposal site is to be determined on a case-by-case basis based on the best monitoring data available for the beaches in the area of influence of East Pass. The critical element of the IMP, and that in keeping with the statutory requirement that sand be placed on “adjacent eroding beaches” is the “strategy” that “the recent erosion of adjacent beaches observed over a minimum of five years shall define the placement need in terms of location and volume.” The East Pass IMP, being applicable only to East Pass, is not of “general applicability.” Furthermore, the East Pass IMP does not implement, interpret, or prescribe law or policy. The Notice to Proceed On January 30, 2018, the City filed its Request for Notice to Proceed (“Request”). The Request addressed the criteria in Specific Conditions 5 and 9 of the Permit. Upon review, DEP determined the conditions of the Permit were satisfied and issued the NTP on February 2, 2018. The analysis of data submitted as part of the Request was designed to show areas of erosion and accretion within the eastern and western areas of influence in order to identify “critically eroded beaches.” The shoreline of Santa Rosa Island to the west of East Pass has historically been stable. To be sure, as is the case with any shoreline, there will be some areas of erosion and some areas of accretion. After Hurricanes Ivan and Opal, areas of Santa Rosa Island experienced erosion. DEP declared the shoreline to be critically eroded after the 2004-2005 hurricane seasons, which prompted Okaloosa County to commission a study to monitor the health of the Monuments R-1 through R-16 beach segment, a segment that includes Petitioners’ residences. Despite the fact that no post-storm beach restoration occurred in the area, the beach recovered naturally and gained sand following the post-storm recovery. In addition, Santa Rosa Island is known for “beach cusps,” which are crenulate3/ shapes along the shoreline. Depending on the season and storm conditions, those beach cusps can have a localized erosive effect on the beach, but those tend to be seasonal. They do not negate what the evidence shows to be the overall stable to accretional conditions of the beaches west of East Pass from Monument V-622 to Petitioners’ residences. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches west of East Pass have large dunes; multiple dune lines; tall, and thick vegetated dunes indicating established dune growth; pioneering vegetation indicating active, healthy dune growth and accretion; partially buried signs indicating dune advance; and broad and expansive beaches. Those features are indicative of a stable and accretional shoreline. Mr. Trammell’s testimony as to the western spoil disposal site was convincing and is accepted. At present, the Santa Rosa Island shoreline is not deemed by DEP to be “critically eroded.” The photographic evidence supports the data collected over time for the beaches west of East Pass, and the testimony offered at the final hearing, which collectively establishes, by a preponderance of the evidence, that the beaches to the west of East Pass are stable and accretional, are not subject to erosion caused by East Pass, and are not “adjacent eroding beaches” as that term is used in section 161.142. The shoreline east of East Pass, including the eastern area of influence and the proposed dredge material disposal sites at Monuments R-17 to R-20.5 and R-23.5 to R-25, except for the area immediately abutting the eastern jetty, is highly erosional. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches east of East Pass exhibit the following signs of significant and ongoing erosion: extensive dune erosion; exposed sea oat roots; reduced beach elevation; reduced beach width; crenulate bays; newly built dune walkovers that replaced old walkovers claimed by erosion; dune walkovers in close proximity to the shoreline indicating that the shoreline had receded to the walkover; and beach scarping at the shoreline indicating active erosion. Mr. Trammell’s testimony as to the eastern spoil disposal sites was convincing and is accepted. The eastern areas of influence are currently designated to be “critically eroded” by DEP, a designation maintained for more than 10 years. The photographic evidence supports the data collected over time for the beaches east of East Pass, and the testimony offered at the final hearing, which collectively establishes, by a preponderance of the evidence, that the beaches to the east of East Pass are critically eroded, a condition that is influenced by East Pass and or its navigational channel, and are “adjacent eroding beaches” as that term is used in section 161.142. Data in Support of the NTP The data submitted by the City to DEP in support of the Request included monitoring data for the eastern beach placement areas from the West Destin Four-Year Post-construction Monitoring Report and earlier annual post-construction reports covering the period from October 2012 to July 2017, and additional data from the Holiday Isle Emergency Beach Fill Two-Year Post-construction Report. DEP was also provided with historical monitoring data for the area west of East Pass, including the Western Beach Monitoring Report, which covered 2006 to 2017, and the Potential Borrow Area Impact Report, which included data from 1996 through 2012. DEP has also received recent profile data from April 2019. These reports, and the data contained within them, cumulatively provide more than 20 years of survey date, and demonstrate convincingly that the shoreline to the west of East Pass has been stable or accreting, and the areas to the east are eroded. The data submitted in support of the Request was sufficient to meet Specific Condition 9 that fill site selection be supported by the latest physical monitoring data over a minimum of five years in accordance with the East Pass IMP. Petitioners argue that the City failed to comply with the PMP, which requires, among other things, that the analysis of the dredged material disposal area include “preconstruction survey data and the most recent survey conducted at least five years prior.” The PMP establishes that “[p]reconstruction surveys shall be conducted no more than 90 days before construction commences. A prior beach monitoring survey of the beach and offshore may be submitted for the pre-construction survey if consistent with the other requirements” of the PMP. The City submitted a prior beach monitoring survey of the beach and offshore that is consistent with the PMP. Petitioners argue that the City violated a temporal limitation which provides that the City “may submit a prior beach restoration monitoring report for the west or east beach areas (Walton-Destin or Western Destin Beach Restoration Project) if the monitoring data is collected within 1 year of the proposed maintenance dredging event and if consistent with the other requirements of this condition.” Petitioners acknowledge in their PRO that the beach restoration monitoring report was timely when the Request for NTP was submitted. The information contained therein was sufficient to support the notice of proposed action on the NTP. The otherwise compliant data is no longer within one year of the proposed dredge. In that regard, the litigation in this case, initiated by Petitioners, has been ongoing for almost one year. Work authorized by the NTP cannot go forward when subject to challenge. If the PMP, which is not a rule, is unreasonably read so as not to account for delay caused by litigation, such delay becomes a tool for use by, and a reward for, a person dissatisfied with DEP’s outcome. In this case, the NTP was lawfully issued pursuant to compliant data, surveys, and analysis. As with any permit or license subject to a third- party challenge, the terms of the NTP are tolled pending Petitioners’ litigation, and do not become a ground for denial of the otherwise compliant Request. See § 120.60(1), Fla. Stat. (“An application for a license must be approved or denied within 90 days after receipt of a completed application unless a shorter period of time for agency action is provided by law. The 90-day time period is tolled by the initiation of a proceeding under ss. 120.569 and 120.57. Any application for a license which is not approved or denied . . . within 45 days after a recommended order is submitted to the agency and the parties, . . . is considered approved unless the recommended order recommends that the agency deny the license.”).4/ Furthermore, DEP has now received recent profile data from April 2019. The evidence establishes that the data provided to DEP as part of the Request includes the latest physical monitoring data over a period of greater than five years, and that the data collection met the standards for conducting physical monitoring. Fill Site Selection The NTP authorized “placement of dredged material in the swash zone east of East Pass.” In accordance with the Permit, that authorized area extends eastward from R-17 to R-20.5 and from R-23.5 to R-25.5, in Holiday Isle. The evidence is persuasive that placing dredged material on the eastern side of East Pass would not result in erosion on the western side of East Pass. Dredged material placed in the western beach placement area, and in the “shadow” of the western jetty, will tend to remain in that area. It would take a very long time, if at all, for that material to migrate further to the west. However, dredged material placed to the east of East Pass would, if the lateral shoreline drift is east to west as asserted by Petitioners (though not supported by a preponderance of the evidence as set forth in paragraphs 11 through 13), be introduced into the ebb shoal and likely move faster to the west as opposed to it being placed directly at the base of the west jetty. As such, placement of the dredged material on the eastern beach placement areas would, more likely than not, accomplish the beach effect objectives set forth in the Petition. The Eglin AFB Beach Restoration Project Petitioners relied heavily on photographs taken in 2010 and 2019 from roughly the same location in the vicinity of Monuments V-607 to V-608 to demonstrate that the beaches of Santa Rosa Island are eroding. The area depicted is outside of the area of influence of East Pass, and outside of the western beach placement area under the Permit. Those photographs depict a wide expanse of beach in 2010, with a seawall well upland from the shore in 2010. Then, in 2019, a photograph depicting the same stretch was offered that showed the same seawall, now at or below the water line. The photographs were, ostensibly, designed to depict naturally occurring erosion in the area. Mr. Clark testified that the seawall and boulder mound structure depicted in both photographs protect an Air Force mission-critical tracking facility. The seawall was originally constructed in 1979 after Hurricane Frederick, was constructed at that time to extend into the water, and was maintained in that configuration through the 1990s. One could not walk around the original seawall. Rather, for most of its history, passage around the seaward side of the seawall could only be accomplished by swimming or wading. The original seawall was damaged by Hurricane Opal, and destroyed by Hurricanes Ivan and Dennis in 2004 and 2005. The Air Force, needing to reconstruct the wall, applied for and received a joint coastal construction permit, allowing the structure to be constructed on sovereign submerged land below the line of mean high water. The seawall was rebuilt and, as stated by Mr. Clark, “it was in the water.” In 2010, the Air Force performed the small Eglin Air Force Base Beach Restoration Project, which placed artificial fill in front of the seawall, thereby creating a temporary beach. That beach fill project was “a one-shot deal,” did not involve any subsequent maintenance, and is now essentially gone, as was expected. Mr. Clark was neither surprised nor concerned with the fact that the area returned to what he described as its natural state, with the seawall below mean high water. The 2019 photograph was presented as evidence of erosion caused by East Pass. That was not the case. Rather, the 2010 photograph was evidence of an artificial and singular event, and the 2019 photograph depicts the natural state of the shoreline. Rather than depicting erosion, the 2019 photograph depicts a return to the stable shoreline that exists all along Santa Rosa Island to the west of East Pass. The photographs of the site of the 2010 Eglin Air Force Base Beach Restoration Project do not support a finding that the beaches of Santa Rosa Island are anything but stable, if not accretional, nor do they support a finding that the beaches of Santa Rosa Island are eroding. Ultimate Factual Conclusion Specific Condition 9 of the Permit requires the location of the spoil disposal be supported by the latest physical monitoring data over a minimum of five years in accordance with the East Pass IMP and the PMP. The greater weight of the competent substantial evidence establishes that the City submitted physical monitoring data consistent with the requirements of Specific Condition 9. The greater weight of the competent substantial evidence establishes that the eastern areas of influence of East Pass, including the beach disposal areas at R-17 to R-20.5 and R-23.5 to R-25.5, are critically eroded, a condition influenced if not caused by the East Pass, and constitute East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the western areas of influence of East Pass, including the beach disposal areas at Monuments V-611 to V-622, are stable, if not accreting, and are not East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the City met the standards for the NTP as proposed for issuance by DEP on February 2, 2018. Evidence to the contrary was not persuasive. Thus, the NTP should be issued.
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 February 2, 2018, Notice to Proceed for the maintenance dredging of East Pass as authorized pursuant to Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 50-0126380-005-EI and State- owned Lease No. 0288799-003-JC, subject to the general and specific conditions set forth therein; and Denying the City of Destin’s Motion for Attorney’s Fees, Expenses and Costs pursuant to section 120.595(1). DONE AND ENTERED this 14th day of October, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 14th day of October, 2019.
Findings Of Fact On or about December 4, 1981, Respondent executed an Agreement with Daytona Sands Beach Club, Inc. (Beach Club), the developer of the project, which was back-dated to August 14, 1981. By the terms of this Agreement, Beach Club sold its interest in thirty-four units of a forty unit condominium time share development having a retail value of $150,000, to Respondent for fifteen percent of the retail value. Respondent testified that the Agreement was simply a financing arrangement whereby Beach Club assigned time-share periods in thirty- four units as collateral for a loan made by Respondent. He stated he received none of the indicia of ownership. However, this is not confirmed by the terms of the Agreement which specifically refer to a sale of Beach Club's interest to Respondent, and an arrangement by which Beach Club would then market and sell the units which Respondent had purchased from them. The Agreement also expressly provides that it "constitutes the entire agreement between the parties and there are no other terms, conditions, or agreements which are not set forth herein or referred to herein." Additionally, it was Respondent who had used this form Agreement previously in other projects and who provided this Agreement for execution by Beach Club. Of the thirty-four units involved in Respondent's Agreement with Beach Club time-share purchasers had acquired time-share periods in twenty-eight units prior to the execution of this Agreement. An Addendum to the Agreement expresses the intention of Beach Club and Respondent that "the present structure of the Sands Beach Club, Inc., contemplates right to use only and not fee simple title." This was a "right to use project" whereby time-share purchasers acquired no interest in the underlying real property and were simply leasing the right to use particular units for a specified number of weeks each year. Thus, Beach Club had an ownership interest in the project at the time the Agreement was executed with Respondent despite the fact that time-share purchasers had already acquired a right to use twenty eight of the thirty-four units referenced in the Agreement. Respondent knew this was a "right to use" project at the time the Agreement was executed. Several months after the execution of this Agreement and Addendum, Respondent had an Assignment prepared which he executed with Beach Club. Although this later executed Assignment specifically acknowledges the prior executed Agreement and Addendum, Respondent contends that this Assignment was prepared and executed for the sole purpose of providing him with additional security for his purported financing arrangement with Beach Club. However, by acknowledging the prior executed Agreement and Addendum which, by their terms refer to a sale of Beach Club's interest to Respondent, the Assignment confirms that Respondent was not simply providing financing in this transaction. Respondent did not execute any additional agreement in association with the transaction other than as set forth above. Specifically, there is no evidence that Respondent agreed in writing to honor fully the rights of time- share purchasers to occupy and use the facilities and to cancel their contracts and receive appropriate refunds, nor did Respondent agree in writing to comply with Chapter 721 or to assume all obligations of the seller to these purchasers. There is no evidence that notice of Respondent's Agreement with Beach Club was mailed to each purchaser.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing a $5,000 civil penalty against Respondent. DONE and ENTERED this 10th day of September, 1985, at Tallahassee Florida. DONALD D. CONN, 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 10th day of September, 1985. COPIES FURNISHED: Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Robert E. Austin, Jr., Esquire Post Office Drawer 1930 Leesburg, Florida 32748 Richard B. Burroughs, Jr. Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Director Division of Florida Land Sales Condominiums & Mobile Homes 725 South Bronough Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Parties. The Respondent, the Department of Natural Resources (hereinafter referred to as the "Department") is a state agency charged with the responsibility to manage Florida's parks and recreation areas pursuant to Chapter 258, Florida Statutes, and the rules promulgated thereunder. The Department is also charged with responsibility to administer, supervise, develop and conserve the natural resources of the State pursuant to Chapter 370, Florida Statutes, and the rules promulgated thereunder. At issue in this proceeding are certain actions taken by the Department, primarily through the Department's Division of Recreation and Parks (hereinafter referred to as the "Division"), with regard to Amelia Island State Recreation Area (hereinafter referred to as the "AISRA"). The AISRA is located at the southern tip of Amelia Island, Nassau County, Florida. Petitioner Board of County Commissioners (hereinafter referred to as the "Board"), of Nassau County, Florida, is the governing body of Nassau County, Florida, a non-charter county of the State of Florida. The Board is authorized to enact ordinances not inconsistent with general or special law pursuant to Section 1(f), Article VIII of the Constitution of Florida. The Board is interested in insuring continued vehicular access to the southern end of Amelia Island within the AISRA. In part, the Board's concern is caused by a belief that the southern end of the AISRA is a good fishing area. The Board's concern is also based upon a belief that access to the southern end of the island will be severely restricted to the old and disabled if vehicular traffic is prohibited in the AISRA. The Board has authorized participation in this proceeding. Petitioner Amelia Island Company is a Florida corporation: Amelia Island Company has developed a resort and residential community known as Amelia Island Plantation (hereinafter referred to as the "Plantation"), on Amelia Island. Amelia Island Company also owns Amelia Island Inn, 2 undeveloped tracts of land, a beach club, a conference center, a tennis facility and golf courses. All of these properties are located within the Plantation. The eastern boundary of the Plantation consists of Atlantic Ocean beach. Ocean. Some facilities of Amelia Island Company front on the Atlantic The Plantation is located north of the AISRA. Amelia Island Company manages approximately 525 residential units within the Plantation pursuant to rental contracts with the unit owners. The units are rented and guests have the right to use the Plantation beach. Some owners and guests of the properties located within the Plantation use the AISRA for fishing. The weight of the evidence failed to prove how many people use the AISRA or how often. Petitioner Amelia Island Plantation Community Association (hereinafter referred to as the "AIPCA"), is an association: The members of AIPCA represent the residential communities within the Plantation, including Amelia Island Company and individual property owners. Members participate in the AIPCA through eighteen condominium associations representing the individual property owners. The AIPCA maintains the Plantation beach. The AIPCA owns the roads, parks and some other facilities within the Plantation. Petitioner Amelia Island Rental Property Owners Association (hereinafter referred to as the AIRPOA) is an association: AIRPOA consists of approximately 410 residential unit owners whose units are located within the Plantation. AIRPOA member units are rented through the Amelia Island Company. The AIRPOA has supported activities designed to stop beach driving on the Plantation beach. Petitioner Dune Club Company II is a Florida corporation: The company owns undeveloped land which it intends to develop as multifamily condominiums. The land owned by Dune Club Company II is located in the Plantation. Therefore, future owners of condominiums will have the right to use the Plantation beach. Petitioner Amelia Island Holding Company is a Florida corporation: The corporation owns undeveloped land within the Dunes Club development, which is located within the Plantation. Future owners of property within this development will have the right to use the Plantation beach. Petitioner Piper Dunes is a Florida corporation: Piper Dunes is developing multifamily condominiums within the Plantation. Future owners of Piper Dunes' condominiums will have the right to use the Plantation beach. Petitioners Dunes Club Community Association, Dunes Row Community Association, Beachwalker Villas Association, Inc., Captain's Court Villas Association, Inc., Inn Rooms at Amelia, a Condominium Association, Inc., Sandcastles at Amelia Island Condominium Association, Inc., Sea Dunes Condominium Association, Inc., Shipwatch Villas Association, Inc., Spyglass Villas Owners Association, Inc., Turtle Dunes Condominium Association, Inc., and Windsong at Amelia Island Plantation Community Association, Inc., (hereinafter referred to as the "Plantation Associations") are Florida corporations and condominium associations: The Plantation Associations are comprised of residents and owners located within the Plantation. The Plantation Associations' members are all proximate to the Atlantic Ocean beach of the Plantation. The governing boards of the Plantation Associations have been active in attempting to restrict driving on the beach running through the Plantation. A substantial number of property owners of the Plantation Associations use the beach running through the Plantation for sunbathing, swimming, surfing, walking, jogging, and other beach activities. Geography. Amelia Island is located at the most northeasterly corner of Nassau County, Florida, and the State of Florida. Amelia Island is bounded on the east by the Atlantic Ocean and on the west by the Intercoastal Waterway. Where the Intercoastal Waterway meets the Atlantic Ocean at the southern tip of the island is named Nassau Sound. The AISRA is bounded on the southwest by Nassau Sound, on the southeast by the Atlantic Ocean, on the north-northwest by Highway A1A and on the north by a relatively large area of undeveloped, privately-owned land. It is approximately one-half mile from the areas which have been designated by the Department as parking areas in the AISRA to the southernmost tip of Amelia Island. The distance can make it more difficult for fishermen to access the southern end of the island. The Creation of the AISRA. The previous owners of the property which makes up the AISRA transferred the property by warranty deeds dated July 1, 1983, December 19, 1983 and June 28, 1985 to the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (hereinafter referred to as the "Trustees"). See Petitioners' exhibit 16. The Division took over management of the property which makes up the AISRA pursuant to a Lease Agreement and pursuant to a Management Agreement for Certain Submerged Lands Bordering State Lands (hereinafter referred to as the "Management Agreement"). The Lease Agreement, dated November 19, 1984, and the Management Agreement were entered into between the Trustees and the Division. Petitioners' exhibit 16. The Lease Agreement was amended on June 22, 1987. Petitioners' exhibit 16. The Management Agreement was amended on January 19, 1988. Petitioners' exhibit 16. In general, the property was leased to the Division for recreation and conservation purposes. The Division is given authority to manage the property for public health and safety, for protection of the property and to be managed as a recreation area. In part, the Management Agreement, as amended, gave the Division authority over: All those sovereign submerged lands lying within 400 feet of the mean high water or ordinary high water line . . . . The Lease Agreement and Management Agreement require that the Division, within twelve months of entering into the Lease Agreement, adopt a Management Plan providing for the "basic guidance for all management activities." Management Plans are to be reviewed by the Trustees every five years after the first Management Plan is adopted. No Management Plan has been adopted by the Department. The evidence in this proceeding failed to prove that the Trustees have taken any action against the Division for failing to adopt a Management Plan as contemplated by the Lease Agreement. The evidence also failed to prove that the Petitioners are privy to the Lease Agreement or Management Agreement. Administratively, the Division treated the AISRA as part of the Talbot Island State Geo Park. The Geo Park is made up of Big Talbot Island State Park, Little Talbot Island State Park, Fort George Island Cultural Site and the AISRA. Therefore, because the administrative offices of the Talbot Island State Geo Park were not located at the AISRA, the AISRA has received minimal attention since its creation. Beach Driving and Parking; Prior to, and Immediately After, the Acquisition of the AISRA by the Department. Prior to the creation of the AISRA, people drove and parked motor vehicles on the beach which is now part of the AISRA. People were able, depending on the tides, to drive on the beach of the AISRA from the southwest end of Amelia Island from Highway A1A at Nassau Sound, around the southern tip of the island, and north on the Atlantic side of Amelia Island. After the Division acquired responsibility for the management of AISRA, the Division, and thus the Department, did not take any action to prohibit all driving and parking on the beach in the AISRA. See, however, section J, infra. Legislative Prohibition Against Driving on Coastal Beaches. Prior to 1985, driving and parking on the beach fronting the Plantation, as well as other beaches under the jurisdiction of the Board, was permissible. In 1985, the Florida Legislature enacted Section 161.58, Florida Statutes. In relevant part, Section 161.58, Florida Statutes, as amended by Chapter 88-106, Laws of Florida, provided that "[v]ehicular traffic . . . is prohibited on coastal beaches " As amended, Section 161.58, Florida Statutes, allows a "local government with jurisdiction over a coastal beach or portions of a coastal beach" to authorize vehicular traffic "on all portions of the beaches under its jurisdiction" [emphasis added], upon three-fifths vote of the local government's governing body and if certain conditions concerning existing off-beach parking are met. The Special Act, Chapter 89-455, Laws of Florida. A dispute over Section 161.58, Florida Statutes, arose between the Board and various private landowners on Amelia Island, including some, if not all, of the Petitioners in these cases. The Board was opposed to the ban on vehicular traffic on the beaches of Amelia Island provided by Section 161.58, Florida Statutes, while the private landowners were in favor of the total ban. As a result of the dispute between the Board and private landowners, the Board and private landowners approached the legislative representatives for their area. As a result of this effort, the Florida Legislature enacted a special act, Senate Bill 1577, Chapter 89-445, Laws of Florida (hereinafter referred to as the "Special Act"). The Special Act represented a compromise between the positions of the Board and the private landowners. Chapter 89-445, Laws of Florida, provides as follows: . . . . Section 1. (1) Scott Road shall be relocated south of the Amelia Surf and Racquet Club Condominium in Nassau County. As part of this relocation, off-beach parking spaces for 100 vehicles must be provided. In addition, access for motorized vehicles onto the Atlantic Beach area must be provided. Parking on the beach is permitted in Nassau County in the area known geographically as Peters Point Road to Scott Road, as relocated after September 30, 1989. Parking on the beach in such area is prohibited after Nassau County issues a certificate of occupancy for the planned Ritz Carlton Hotel. On-beach parking shall continue to be permitted in the following nonresort areas: The Peters Road intersection with the beach area north to the city limits of Fernandina Beach. The Lewis Street intersection with the beach area north to the developed resort area parcel and south to the developed resort area parcel. The southerly end of Amelia Island from the Nassau Sound side to the developed resort area parcel on the Atlantic Ocean side. The term "developed resort area" means any property that is subject to a development order as of the effective date for this act if such development order indicates resort activities. (4)(a) On-beach parking in front of an undeveloped resort area parcel shall be prohibited upon the issuance of a certificate of occupancy for that parcel, contingent upon the existence of adequate off-beach parking during the peak period. (b) For purposes of determining the existence of adequate off-beach parking, the parking available at sites off the beach, measured for the entire beach, under the exclusive jurisdiction of the Nassau County Commission must be considered. The peak period must be determined as measured by the Department of Natural Resources formula as published in the Administrative Weekly in May 1989, except that 70 percent of peak user must be the standard. Those sites which are permanent on-beach parking sites must be included in the determination. Section 2. Any resort area parcels which are developed and which are not contiguous must have lanes of traffic connecting with defined lanes identified by traffic-path indicators. Section 3. A motorized tram system is hereby authorized on the Atlantic Ocean beaches within the jurisdiction of Nassau County. Section 4. This act shall take effect March 1, 1990. . . . . County Ordinance 89-23. Subsequent to the enactment of the Special Act, the Board enacted Ordinance 89-23, which provides as follows: ORDINANCE 89 - 23 AN ORDINANCE DETERMINING, PURSUANT TO RULE 16B-45, FLORIDA ADMINISTRATIVE CODE, THAT LESS THAN 50 PERCENT OF THE PEAK USER DEMAND FOR OFF BEACH PARKING IS AVAILABLE; PROVIDING AN EFFECTIVE DATE. WHEREAS, Paragraph 161.58(2)(b), Florida Statutes, mandates that vehicular traffic be prohibited from coastal beaches except where a local government has determined by October 1, 1989, in accordance with the rules of the Department of Natural Resources that less than fifty percent (50 percent) of the peak user demand for off-beach parking is available; and WHEREAS, the Board of County Commissioners had determined that it is in the public interest to preserve the maximum access to the public beaches of Nassau County; and WHEREAS, the public was in jeopardy of losing access to a majority of beaches in Nassau County unless action was taken by the Board on behalf of the citizens of the County in order to preserve the citizens' right to their beaches; and WHEREAS, the Legislature adopted Senate Bill 1577, which is a local bill pertaining to vehicular access to the Nassau County beaches; and WHEREAS, the Department of Natural Resources has adopted Rule 16B-47, Florida Administrative Code; and WHEREAS, pursuant to Rule 16B-47.004, the Board of County Commissioners desires to continue to authorize vehicular traffic on its County beaches. NOW, THEREFORE, BE IT ORDAINED this 12th day of September, 1989, by the Board of County Commissioners of Nassau County, Florida, as follows: SECTION 1. TITLE This Ordinance shall be known as the "Authorized Beach Vehicular Traffic Ordinance". SECTION 2. INVENTORY OF AVAILABLE OFF-BEACH PARKING The following is an inventory of the available off-beach parking within the Board of County Commissioners of Nassau County's jurisdiction: Pasco access - 10 parking spaces Peters Point Park - 200 parking spaces Scott Road - 50 parking spaces Burney Park - 200 parking spaces Dunes Club access - 30 parking spaces South End Ramp - 25 parking spaces TOTAL OFF-BEACH PUBLIC PARKING SPACES 515 SECTION 3. PEAK USER DEMAND FOR OFF-BEACH PARKING The Board of County Commissioners has determined from the Kings Bay Area Recreation Master Plan dated March 8, 1985, that: In 1985, the study indicated that peak day on-beach demand was 4,775 people per day. The study further indicated that 1,640 parking spaces would be needed for the year 1985. The study further projected that in 1990 the peak day beach users would be 5,669 and require 1,995 parking spaces. The study further indicates that in the year 2000 the peak day beach users would be 7,487 and require 2,602 parking spaces. The above represents peak day beach users and off-beach parking spaces required from Sadler Road to the South End of the island. SECTION 4. AVAILABLE PERCENTAGE OF PEAK USER DEMAND FOR OFF-BEACH PARKING The Board of County Commissioners has determined, based upon the above referenced study, that there is less than fifty percent (50 percent) of the peak user demand for off-beach parking available and, as a result, the Board hereby authorizes vehicular traffic to continue to utilize the County beach areas within its jurisdiction. Commencing March 1, 1990, the county beach areas available to vehicular traffic shall be set forth in the Special Act referred to as Senate Bill 1577. SECTION 5. EFFECTIVE DATE This Ordinance shall take effect upon being filed in the Secretary of State's office. . . . . Amelia Island Company v. Nassau County, Florida. Despite the enactment of the Special Act and Ordinance 89-23, some of the Petitioners were not satisfied because vehicular traffic continued along the beaches in front of their property. Consequently, a number of the Petitioners, including Amelia Island Company, brought an action for declaratory judgment against the Board in the Circuit Court, Fourth Judicial Circuit in and for Nassau County, Case No. 90-397. Parking was only authorized by the Special Act and Ordinance 89-23 on beaches fronting undeveloped property. Parking was not authorized on beaches fronting developed property such as the property of most of the Petitioners. Those Petitioners which were involved in the litigation in the Circuit Court were interested in insuring that vehicles were not allowed to drive along the beach in front of their developed areas in order to access the beach in front of undeveloped areas. On February 1, 1991, the Circuit Court entered a Final Judgment in Case No. 90-397 (hereinafter referred to as the "Final Judgment"), and another related case which had been consolidated with it. Among other things, the Court concluded in the Final Judgment, the following: Section 161.58, Florida Statutes, "prohibits vehicular traffic on all beaches in the State of Florida except where the local government authorizes such traffic and determines that 'less than 50 percent of the peak user demand for off-beach parking is available.'" The Special Act "authorizes vehicular traffic on beaches within the exclusive jurisdiction of Nassau County." [Emphasis added]. The Court further stated: Senate Bill 1577 [Chapter 89-455, Laws of Florida], creates an exception for beaches under the exclusive jurisdiction of Nassau County by authorizing parking in certain areas and directing the creation of lanes of traffic on its beaches. It goes without saying that for one to use the parking areas on the beaches designated by the legislature, one must be able to drive. . . . The Court must conclude that Senate Bill 1577, by inference and implication authorizes vehicular traffic on the beaches within the exclusive jurisdiction of Nassau County. As a result, it conflicts with Chapter 161, Florida Statutes, and the Special Act takes precedence. Consequently, even if the Ordinance is invalid, Senate Bill 1577 authorizes vehicular traffic on the beaches within the exclusive jurisdiction of Nassau County. Ordinance 89-23 "permits vehicular traffic within the exclusive jurisdiction of Nassau County." [Emphasis added]. Ordinance 89-23 was enacted consistent with the exception against vehicular traffic on coastal beaches of Section 161.58, Florida Statutes. Ordinance 89-23 is valid. As a result of the Final Judgment, beach driving was still permitted on Nassau County beaches that fronted developed and undeveloped property. The Final Judgment did not specifically address the beach of the AISRA. In fact, the Final Judgment is expressly limited to beaches "within the exclusive jurisdiction of Nassau County." The Final Judgment was appealed to the District Court of Appeal, First District. The District Court reversed the Final Judgment in part and affirmed it in part. Amelia Island Company v. Nassau County, 585 So.2d 1061 (Fla. 1st DCA 1991). In pertinent part, the District Court concluded the following: In sum, the trial court correctly found that Nassau County Ordinance 89-23 is valid, but the final judgment is in error to the extent that it interprets the ordinance and SB 1577 as authorizing unrestricted vehicular traffic over the entire beach. Instead, the county beach areas available to vehicular traffic . . . include only areas reasonably necessary to permit use of all specified beach parking in the manner permitted under the terms of the special act. Accordingly, the final judgment is affirmed in part, reversed in part, and remanded for entry of judgment in conformity with this opinion. Amelia Island Company, 585 So.2d at 1064. On April 28, 1992, the Circuit Court entered a Final Judgment (hereinafter referred to as the "Final Judgment on Remand"), on remand from the District Court. Among other things, the Final Judgment on Remand lists those areas "on the beaches within the jurisdiction of Nassau County" where driving is prohibited. No reference to the AISRA is contained in the listing. There is a relatively large area of undeveloped privately-owned land north of the AISRA and south of the land owned by some of the Petitioners. As a result of the Special Act and Ordinance 89-23, parking is allowed on the beach bounding this undeveloped property. As a result of the Final Judgment on Remand, vehicular traffic was authorized to travel to the undeveloped property beach. Such access was available, however, by traveling around the southern tip of Amelia Island through the AISRA. Consequently, vehicular traffic would not be allowed on the beaches fronting the property of the Petitioners (other than the Board) so long as beach driving is allowed through the AISRA. The Final Judgment on Remand, however, recognized that it was possible that beach driving could be prohibited in the AISRA despite Ordinance 89-23 and the Special Act. Although the Circuit Court and District Court did not specifically construe section 1(3)(c) of the Special Act, the Final Judgment on Remand includes the following reference to the southern end of Amelia Island: 6. In the event the access to the south end is closed to public use by any state or federal law or regulation (and for so long as such access is closed), access to the parking areas permitted by Section 1(3)(c) of the Senate Bill will be permitted from the Lewis Street access south to the southerly end of Amelia Island. In addition, in the event any state or federal law or regulation closes or limits the access to the south end of any part of a twenty-four hour period, then during such time, access to the south end will be permitted from the Lewis Street south (unless such closure or limitation is applicable to all the beaches under the jurisdiction of Nassau County), in accordance with the provisions of Senate Bill 1577. Recognizing that beach driving could be prohibited in the AISRA, which would in turn prevent access to beaches of the privately-owned undeveloped tracts of property immediately to the north of the AISRA, the Final Judgment on Remand recognized that beach driving would have to be allowed from north of the privately-owned undeveloped tracts of property. The only northerly access to the beaches of the undeveloped privately-owned property is a road located north of the property owned by Petitioners (excluding Nassau County). Consequently, beach traffic would have to travel along the beach of the Plantation to reach the undeveloped privately-owned property if beach driving were prohibited in the AISRA. Powers and Duties of the Division; The General Prohibition Against Driving and Parking in State Parks. Section 258.004, Florida Statutes, sets out, in general, the duties of the Division as follows: 258.004 Duties of division.- It shall be the duty of the Division of Recreation and Parks of the Department of Natural Resources to supervise, administer, regulate, and control the operation of all public parks, including all monuments, memorials, sites of historic interest and value, sites of archaeological interest and value owned, or which may be acquired, by the state, or to the operation, development, preservation, and maintenance of which the state may have made or may make contribution or appropriation of public funds. The Division of Recreation and Parks shall preserve, manage, regulate, and protect all parks and recreational areas held by the state and may provide these services by contract or interagency agreement for any water management district when the government board of a water management district designates or sets aside any park or recreation area within its boundaries. In order to implement the Division's responsibilities pursuant to Chapter 258, Florida Statutes, the Department enacted Chapter 16D-2, Florida Administrative Code. Section 258.007, Florida Statutes, sets out the power of the Division to adopt rules. In relevant part, the Division is given the following rule- making power: (2) The division shall make and publish such rules and regulations as it may deem necessary or proper for the management and use of the parks, monuments, and memorials under its jurisdiction, and the violation of any of the rules and regulations authorized by this section shall be a misdemeanor and punishable accordingly. Pursuant to the authority and duties assigned to the Division by Chapter 258, Florida Statutes, the Department has adopted rules governing vehicles and traffic on lands within the Department's jurisdiction, including state recreation areas such as the AISRA. Rule 16D-2.002, Florida Administrative Code. See also Rule 16D-2.001, Florida Administrative Code. In particular, the Department has provided the following with regard to driving: Restriction to Roads. No person shall drive any vehicle on any area except designated roads, parking areas, or other such designated areas. Rule 16D-2.002(4), Florida Administrative Code. Pursuant to this rule, driving is not allowed anywhere in a state recreation area except to the extent specifically designated by the Division. With regard to parking, the Department has provided the following: Parking. All vehicles shall be parked only in established parking areas or in such other areas and at such time as the Division may designate. Rule 16D-2.002(5), Florida Administrative Code. Pursuant to this rule, parking is not allowed anywhere in a state recreation area except to the extent specifically designated by the Division. The evidence failed to prove that Rules 16D-2.002(4) and (5), Florida Administrative Code, are invalid or otherwise not applicable in this case. Rules 16D-2.002(4) and (5), Florida Administrative Code, apply to the AISRA. As evidenced in findings of fact 29, 57 and 59, following the acquisition and lease of AISRA to the Division, the Division (and, therefore, the Department) failed to totally enforce Rules 16D-2.002(4) and (5), Florida Administrative Code. Instead, the Division allowed most of the historical beach activities, including beach driving and parking, to continue despite the general prohibition against driving and parking unless otherwise designated by the Department pursuant to Rules 16D-2.002(4) and (5), Florida Administrative Code. In effect, by failing to enforce Rules 16D-2.002(4) and (5), Florida Administrative Code, the Division authorized driving and parking in the AISRA without taking any action to formally "designate" authorized parking or driving areas as contemplated by Rules 16D-2.002(4) and (5), Florida Administrative Code. The Department's Subsequent Decision to Enforce Rules 16D-2.002(4) and (5), Florida Administrative Code. In part, because of the fact that the AISRA was a satellite of Talbot Island State Geo Park, Robert Joseph, the Park Manager, did not take any action to totally enforce the ban of Rules 16D-2.002(4) or (5), Florida Administrative Code, on beach parking and driving in the AISRA, when the AISRA was first created. Mr. Joseph's decision was also based, in part, on the fact that such activities had historically been allowed. Therefore, Mr. Joseph was concerned about the impact that enforcement of the rules would have on the public. Mr. Joseph did take action to enforce the prohibitions of the rules on the dunes of the AISRA and in areas covered by vegetation in the AISRA. Mr. Joseph believed that the issue of beach driving and parking would have to be looked at closely in the future. In subsequent years, after the services of environmental specialists of the Department became available to evaluate the AISRA, the rules banning parking and driving in state parks were enforced in the AISRA to the extent that it appeared that shore bird nesting areas were being negatively impacted by driving and parking. Eventually, Mr. Joseph became convinced that the ban on parking and driving of Rules 16D-2.002(4) and (5), Florida Administrative Code, needed to be enforced throughout the AISRA. Mr. Joseph made this decision based upon the following general observations: Driving on the beach of the AISRA had been increasing since the Department's acquisition of responsibility for the AISRA, further endangering the resources of the AISRA; and There was an increase of safety hazards as a result of the increased vehicular activity. In light of Mr. Joseph's fear that the proposed enforcement of the Department's rules banning parking and driving in the AISRA would be controversial, Mr. Joseph decided to make a recommendation to his supervisors that beach driving be prohibited in order to allow their input. Mr. Joseph recommended an immediate and total ban on all beach driving. Mr. Joseph's recommendation was ultimately reviewed by the District Manager for the district of the Division in which the AISRA is located, the Assistant Division Director, the Division Director and the Department's Policy Coordinating Committee (hereinafter referred to as the "PCC"). Among those serving on the PCC were the Assistant Executive Director of the Department, Deputy Assistant Executive Director of the Department and the Director of the Division. The recommendation was also reviewed by the Chief of the Bureau of Natural and Cultural Resources of the Department. The PCC is an advisory committee which considers various issues which the Department must confront. The PCC makes recommendations to the Executive Director of the Department concerning a variety of policy decisions. After considering Mr. Joseph's recommendation at a meeting of the PCC on July 22, 1991, the PCC adopted the following: Amelia Island State Recreation Area Beach driving will be phased out beginning with a night driving ban effective January 1, 1992 and ending with a total ban on April 1, 1992. The status and legal implications of Chapter 89-445, Laws of Florida, will be investigated and clarified as it relates to driving on the island. Ultimately, Mr. Joseph's recommendation, as modified by the PCC, was reviewed, further modified and accepted by the Executive Director of the Department. Implementation of the Department's Decision to Enforce Rules 16D-2.002(4) and (5), Florida Administrative Code. Mr. Joseph was ultimately informed that he should prohibit beach driving in the AISRA in the manner ultimately explained on the Information Sheet at issue in this proceeding. On or about April 1, 1992, Mr. Joseph caused signs to be posted in the AISRA notifying the public of the Department's decision concerning beach driving and parking (hereinafter referred to as the "Signs"). It was indicated on the Signs, when and where driving and parking on the beach of the AISRA was allowed and not allowed. The Signs were intended to notify the public that there were two designated parking areas in the AISRA. One parking area was designated at the southwestern edge of the AISRA adjacent to Highway A1A. The other parking area was designated at the northeast edge of the AISRA on the Atlantic ocean side of the AISRA. The Signs were also intended to notify the public that driving on the beach was restricted from April 1 to October 31, 1992. The Signs indicated that between April 1 to October 31, 1992, driving was not allowed south of the two designated parking areas. Although couched in terms of a restriction, the Signs also have the effect of designating where and when vehicular traffic is allowable in the AISRA as contemplated by Rules 16D-2.002(4) and (5), Florida Administrative Code. Subsequent to placing the Signs in the AISRA, Mr. Joseph became concerned that there was confusion over exactly what the Signs allowed and prohibited. Consequently, Mr. Joseph decided to distribute the Information Sheet in an effort to better inform the public of what was acceptable in the AISRA. The Information Sheet (without the map that was attached thereto) provided the following: AMELIA ISLAND STATE RECREATION AREA BEACH ACCESS INFORMATION SHEET DNR's policy to regulate beach driving is clearly established. The Division of Recreation and Parks (DRP), with management authority for Amelia Island State Recreation Area (AISRA), is charged with the multiple tasks of providing maximum access for recreational pursuits with protection of Florida's natural values and rare and fragile resources. Beginning April 1, 1992, and continuing until October 31, 1992, a seasonal program of beach access will prohibit vehicular beach access to the southernmost tip of Amelia Island within AISRA. Pedestrian access to the south tip is encouraged during this period. Vehicular parking will be allowed during this period from AISRA boundaries to signs posted on the beach. Access to, and parking on the beach in these areas will be allowed on the hard sand beach area below the high tide line. No driving or parking will be allowed above the high tide line. The entire beach will be closed to parking and driving during high tide and after sunset. The seasonal program of beach access will continue until October 31, 1992, whereupon beach driving and parking will again be permitted on the entire beach within AISRA below the high tide line. Absence of vehicles from the south tip will further protect one of only three designated Critical Wildlife Areas (CWA) in Northeast Florida. Several listed species utilize the Amelia Island CWA, including american oystercatchers and the threatened least tern. During nesting season, park visitors should avoid walking within a 100 yard perimeter of the designated CWA. Adult birds must remain on the nest during the day to protect eggs and hatchlings from the intense heat from the sun. Even temporary abandonment may cause the eggs to literally bake. The boundaries of the CWA will be designated by red and white nesting area signs. The program will improve nesting habitat for marine turtles. The absence of artificial lights, and vehicular traffic will combine with the natural beach profile to enhance nesting. Amelia Island State Recreation Area now offers a recreational experience available nowhere else on Amelia Island. The ability to walk a stretch of the island which is undeveloped, pristine, and un-impacted, with a chance to view native wildlife that has been excluded elsewhere to the brink of extinction. For more information, please contact the Talbot Islands State Park Ranger Station on Little Talbot, or call (904) 251-2320. SUMMARY OF RESTRICTIONS (April 1, 1992 - October 31, 1992) No driving on the beach after sunset. No driving on the beach at high tide. Driving allowed on hard sand beach only. (below previous high tide line) See attached map for authorized parking areas. Petitioners' exhibit 2 and Respondent's exhibit 1. The Information Sheet was distributed to persons entering the AISRA. Although the Signs and the Information Sheet are limited to a particular period of time, the evidence established that the decisions of the Department evidenced by the Signs and the Information Sheet will apply to future years also. The parties have characterized the action of the Department evidenced on the Signs and in the Information Sheet as a restriction on parking and beach vehicular traffic. Because driving and parking on the beach has historically continued in the AISRA, from a practical standpoint, the Signs and Information Sheet do impose a restriction. Technically and legally, however, without the designation of appropriate parking areas on the Signs and the Information Sheet, parking and vehicular traffic on the beach of the AISRA was already prohibited or restricted in the AISRA pursuant to Rules 16D-2.002(4) and (5), Florida Administrative Code. The Signs and Information Sheet constitute a designation by the Department, pursuant to Rules 16D-2.002(4) and (5), Florida Administrative Code, of when and where driving and parking is permitted in the AISRA and not a ban on driving or parking. The Signs and Information Sheet apply to any person who uses the AISRA. It has no application to other areas operated or managed by the Division. The Signs and Information Sheet inform the public of two separate decisions of the Department. The Petitioners have challenged the action of the Department evidenced by the Signs and Information Sheet to the extent that the public is informed of the Department's first decision: the decision to begin enforcement of the ban on driving and parking in state parks set out in Rules 16D-2.002(4) and (5), Florida Administrative Code. The Petitioners have not, however, challenged action of the Department evidenced by the Signs and Information Sheet to the extent that the public is informed of the Department's second decision: the decision to designate the acceptable areas and times for beach vehicular traffic and parking in the AISRA. By enforcing the prohibition against beach driving in the AISRA, vehicular traffic is no longer able, at least from April 1 to October 31 of each year, to access the beaches of the undeveloped, privately-owned tracts of land north of the AISRA from the south. Therefore, pursuant to the Final Judgment on Remand, vehicular traffic is allowed to travel from the beach access road located to the north of the property of the Petitioners (other than the Board), to the south on the beaches running through the Petitioners' property. The challenge to the Signs and Information Sheet as an unpromulgated rule in case numbers 92-4912RU and 92-4913RX were dismissed by a Final Order entered simultaneously with this Recommended Order.
