The Issue Petitioners challenged the Department of Environmental Protection's (Department) preliminary Final Order, alleging that Petitioners committed the "unauthorized clearing and destruction of dunes and dune vegetation for the purposes of constructing a roadway seaward of the coastal construction control line [(CCCL)] without benefit of a permit." The ultimate issue is whether the work Petitioners performed was seaward of the CCCL, and if it was, whether there was a violation of Amended Permit FR-563 and Section 161.053(2), Florida Statutes.
Findings Of Fact Parties Petitioner, Ben Withers, Inc., is a Florida corporation doing business in the State of Florida. Petitioner, Ben Withers, is the President and owner of Ben Withers, Inc., and a resident of Panacea, Florida. (Henceforth, Ben Withers and Ben Withers, Inc., are referred to collectively as "Mr. Withers," unless otherwise noted.) Mr. Withers is a licensed general contractor. The Department is the executive agency of the State of Florida operating pursuant to, among others, Chapter 161, Florida Statutes, and Chapter 62, Florida Administrative Code. Pursuant to Chapter 161, Florida Statutes, the Department administers the CCCL program for construction activities seaward of the CCCL. Coastal Construction Control Line Program The Department's Bureau of Beaches and Wetland Resources regulates construction and excavation activities seaward of the CCCL. The Department is responsible for determining and setting the CCCLs. The CCCL is a scientifically established line pursuant to Section 161.053, Florida Statutes. By definition, the CCCL "defines that portion of the beach-dune system subject to severe fluctuations based on a one-hundred-year storm surge, storm waves, or other predictable weather conditions." Rule 62B-33.002(13), Florida Administrative Code. Construction and excavation activity seaward of the CCCL is regulated by Section 161.053, Florida Statutes, and Rule 62B- 33, Florida Administrative Code. Mr. Withers admitted that he is aware of Department rules regarding beaches and coastal construction and is also aware that excavation seaward of the CCCL requires a permit unless it is otherwise exempt, and that he had this knowledge prior to the present case. Accessing the Pepper Project Site Under Amended Permit FR-563 Dog Island is a barrier island south of and about three miles off the coast of Franklin County, Florida. The island is approximately eight miles in length. There is no bridge to the island. The Pepper project site is on the far western end of the island. The Gulf of Mexico borders the island on the south and St. George Sound borders the island to the north. The most common way to access the Pepper site with any vehicle carrying equipment and materials, would be to use a boat or barge to a marina area (Tyson's Harbor) near the center of the island, or a private dock, and then traverse west down the middle of the island or down the beach itself, or a combination of the two. The Easy Street Easement is an easement area for a roadway running east and west through Dog Island. The parties agree that Easy Street and the Easy Street Easement are the same. The Easy Street Easement had been an unpaved roadway years before; part of the roadway was still visible in May 2001, and other parts had been covered with vegetation. There are portions of Easy Street and Easy Way east of the cul-de-sac which are visible roadways. See, e.g., Department Exhibit 13. Additionally, parts of Easy Street are seaward of the Department's CCCL (e.g., in the narrows area which is west of the cul-de-sac) and other parts are landward of the CCCL. See, e.g., Finding of Fact 29. Pursuant to its statutory duty, in 1996, the Department set the reference monuments R-158-R-160 for the CCCL on the west end of Dog Island. These monuments are in the narrows area of the island and run west to east. The CCCL is not visible on the ground. A surveyor is needed to locate the line. The alleged violation in this case was committed between R-158 and R-160, part of the narrows area. The Easy Street Easement on Dog Island runs both north and south from The Nature Conservancy cul-de-sac and then runs westerly to the west end of Dog Island. The CCCL Permits On October 21, 1999, the Department issued Permit FR-563 to Leonard Pepper, the property owner, for the construction of a single–family dwelling and for structures associated with the dwelling on the west end of Dog Island. Permit FR-563 contained Standard Permit Conditions that required in part: (1)(a) all construction or activity for which the permit was granted be carried out in accordance with the plans and specifications which were approved by the Department as a part of the permit; (1)(b) all construction or activity authorized under the permit shall be conducted using extreme care to prevent any adverse impacts to the beach and dune system; and (1)(g) existing beach and dune topography and vegetation shall not be disturbed except as expressly authorized in the permit. Permit FR-563 did not authorize the start of construction until a construction access plan to the Pepper project site was approved, in order to minimize impacts to the beach and dune system. On October 16, 2000, Amended Permit FR-563 was issued with a Notice to Proceed Withheld. The Amended Permit also contained Special Condition 1.5 which required the submittal and approval of "[a] construction access plan showing the route and timing for bringing equipment and materials to the site, in order to minimize impacts to the beach and dune system." The Department was concerned about the manner in which equipment and materials would be brought to the project site without causing further harm to the system. Amended Permit FR-563 did not expressly or implicitly authorize excavation or grading seaward of the CCCL in any area on Dog Island off of the project site and footprint of the house. In late 2000, Mr. Withers became involved with the Pepper project after Amended Permit FR-563 (with the Notice to Proceed Withheld) was issued on October 16, 2000. Part of Mr. Withers' job responsibility was to prepare and submit a construction access plan to the Department for approval. The Department does not normally require an access plan because most job sites are located in areas with established roads for ingress and egress. Here, there was no established road to and from the project site. The access plan was necessary in order to determine how Mr. Withers would transport equipment and materials to the Pepper project site on the west end of Dog Island due to the site's remote location and the absence of an established roadway to the site. Mr. Withers expected that materials and heavy equipment, including cranes, would be off-loaded at Tyson's Harbor, located approximately in the middle of Dog Island, and transported by vehicle to the project site along the access plan route. He expected to only transport pilings using the beach access route. On March 15, 2001, Mr. Withers submitted an access plan which described the route Mr. Withers would traverse by vehicle with construction equipment and materials. See Endnote 1. The Easy Street Easement starts at the east end of the island as an established roadway. Proceeding in a westerly direction, Easy Street comes to a dead-end at a cul-de-sac landward of the CCCL. The access plan authorized Mr. Withers to access the job site using part the Easy Street/Easy Street Easement (starting on the east end of the island) going north from The Nature Conservancy cul-de-sac, then heading in a westerly direction just south of the Ausley house (west of R-158 and just landward of the CCCL) and across the narrows area and continuing in a westerly direction along the northern shoreline and in southerly direction toward R-154. The access plan then authorized Mr. Withers to proceed in a westerly direction over the middle portion of the west-end of the island, then in a southerly direction toward the project site.1 The access plan showed a route both landward and seaward of the CCCL along the narrows area. See Department Exhibit 4- orange line then blue line after the orange circle on the west-end of the island. As described by Mr. McNeal of the Department, the access route is seaward, for the most part, of the CCCL from R-157 to R- 159 (running west to east) and landward of the CCCL east of R-159. The Department described the damaged area of 5,305.6 square feet (Department Exhibit 11A, insert "B") caused by Mr. Withers as east of R-159 and seaward of the CCCL and south of the access plan route. See also Finding of Fact 35. However, it appears that a portion of Easy Street, between R-159 and R-160, is seaward of the CCCL. Compare Department Exhibit 12 with Department Exhibits 4, 11A, and 13. During a pre-hearing deposition, Mr. Withers marked in pink the route he took through a portion of the narrows area which coincides with the portion of Easy Street between the approximate locations of R-159 and R-160, depicted on Department Exhibit 12. See Finding of Fact 43. (Mr. Withers had the Easy Street Easement staked prior to doing any work on Dog Island. See Findings of Fact 33-35.) The damaged area appears to coincide with this portion of Easy Street, and seaward of the CCCL. See Department Exhibit 11A. The access plan authorized Mr. Withers to drive (vehicular traffic) his equipment over the easement following the route depicted on the access plan until he arrived at the project site. See Endnote 1. The Department expected that travel along the access route would cause minimal and temporary damage or destruction to the topography, so the plan was considered acceptable. The access plan did not authorize excavation of a roadway within the route, including the narrows area, nor did it contemplate any other activity over or around a dune other than what might occur as a result of driving.2 The Department understood that Mr. Withers would be driving daily over the access plan route to the project site. The Department assumed that trucks would be used to transport equipment and materials. The Department did not differentiate among vehicles which could be used, including large trucks. On April 11, 2001, the Department issued a Notice to Proceed to Mr. Pepper to begin construction of his single-family dwelling in accordance with Amended Permit FR-563. The access plan is part of the Amended permit. Shortly after the Notice to Proceed was issued, The Nature Conservancy advised the Department of concerns it had with the access plan. As a result, on April 24, 2001, there was a meeting in Apalachicola, Florida, convened by the Department and attended by other interested governmental entities and private persons, including Mr. Withers. The purpose of the meeting was explore other possible ways and means of access by Mr. Withers to the Pepper project site.3 No resolution was reached during the meeting and the access plan previously approved by the Department remained effective. The previously issued Notice to Proceed was also in effect. The Violations Mr. Withers hired Kenneth Greenwood of Garlick Environmental Associates to perform a threatened/endangered species inspection, plant and animal, on an approximately 30-foot wide strip on the Easy Street Easement (approximately 1,800 feet) being utilized in Mr. Withers' access plan and within the narrows area. See Department Exhibit 13-yellow markings. On May 2, 2001, Mr. Greenwood performed the inspection within the easement that Mr. Withers had staked out by a land surveyor, approximately 15 feet on either side of the stakes. He found no threatened/endangered species. (The CCCL was not staked by Mr. Withers because, according to Mr. Withers, the Department did not ask him to locate the CCCL with stakes.) The access route depicted by Mr. McNeal in orange on Department Exhibit 4, which runs east of R-159, is similar to the description of the staked areas east of R-159, described by Mr. Greenwood and marked in yellow on Department Exhibit 13. See Findings of Fact 28-29. Both areas are landward of the CCCL. However, the 5,305.6 square foot damaged area is east of R-159 and is seaward of the CCCL. Mr. Greenwood described the area where he performed his investigation as being "relatively undisturbed," "relatively stable," having no vehicle tracks, and he stated that there were areas of bare sand as well as areas of "natural beach dune vegetation." He described the area as "relatively flat with some small amounts of mounding." The pictures taken by Mr. Greenwood within the staked easement on May 2, 2001, as part of his investigation, do not depict any vehicle tracks. After Mr. Greenwood completed his investigation on May 2, 2001, he observed Mr. Withers landward of the CCCL on a front-end loader and north of the cul-de-sac, proceeding west along the Easy Street Easement scraping off the top layer of soil and heading in a westward direction. Mr. Greenwood believed that the activity performed by Mr. Withers at this time was consistent with unpaved, road construction. According to Mr. Greenwood, the width of the scraped area appeared to be approximately the width of the bucket on Mr. Withers' front-end loader. Mr. Withers stated that he was doing minor grading landward of the CCCL with a John Deere 310-E front-end loader tractor when Mr. Greenwood was present on May 2, 2001. This tractor had a front bucket (approximately seven to eight feet wide) and a backhoe for excavating dirt on the back-end. Mr. Withers described the work which he performed when Mr. Greenwood was present as moving out and smoothing off the top of the sand landward of the CCCL in order for his equipment to get through. Mr. Withers also stated that he made areas in the easement seaward of the CCCL smooth by using the bottom of the bucket of his front-end loader to move sand around. Mr. Withers mentioned that he was very concerned that he needed to have the pathway he was utilizing in the access plan marked and smoothed off and fairly level. He believed the access plan authorized him to smooth off the areas on the access route. Mr. Withers stated that he had to have the access path level because he was bringing a self-propelled, 25-ton crane down the access path and they are top heavy and can get off balance, topple over, or get stuck. Mr. Withers described two types of work that he performed in the Easy Street Easement as: 1) clearing landward of the CCCL that required scooping and moving dirt, and 2) smoothing several areas seaward of the CCCL, just east of R-158 to around R- 160. An area of excavation damage seven feet seaward of the CCCL (beginning approximately 130 feet east of R-158) and an area 41 feet seaward of the CCCL (beginning at R-159, continuing east approximately 500 feet) are located within the area Mr. Withers stated he did some "smoothing off areas," again, east of R-158 and continuing east toward, but west, of R-160. Mr. Withers believed that Amended Permit FR-563 allowed him to use the Easy Street Easement in the access plan "to do . . . whatever was necessary and . . . needed to get [his] equipment, access [his] equipment down to the job site." He also admitted smoothing the areas. Mr. Withers also stated that Amended Permit FR-563 granted him permission to access the west end of Dog Island. Therefore, there was no need for him to locate the CCCL. Mr. Withers referred to the easement in the access plan as turning into a good pathway after he smoothed the areas. Mr. Withers stated that it was his "intention to gain access to the west end of Dog Island through a legal easement and an existing roadway" and that he wanted to utilize it. Mr. Withers testified "that he knew a lot of roads on Dog Island crossed seaward of the [CCCL]" in response to questioning whether he knew at the time of his performing work on the easement, whether or not the Easy Street Easement crossed seaward of the CCCL. He knew he was going to be traversing "fairly close" to the CCCL. Mr. Withers stated he did not knowingly violate the conditions of the Amended Permit. Mr. Withers was aware of the Department's permit requirements for work seaward of the CCCL when he performed his access work in the easement on Dog Island. However, Mr. Withers never had a survey done to figure out where the CCCL was located. Notice of the Alleged Violations Around May 2, 2001, the Department received a complaint that excavation was occurring seaward of the CCCL on Dog Island in the narrows area of the Easy Street Easement. On May 4, 2001, John A. Poppel, William Fokes, and Phil Sanders went to Dog Island on behalf of the Department to investigate the complaint of excavation in the narrows area seaward of the CCCL. On May 4, 2001, Mr. Poppel performed a survey of the narrows area and located the CCCL. He located monuments R-158- R-160. Department Exhibit 11. As a product of his survey, Mr. Poppel was able to depict the newly excavated roadway or pathway in relation to the CCCL. Mr. Poppel calculated that one area of damage was seven feet seaward of the CCCL and consisted of 503.8 square feet of damage and a second area of damage was 41 feet seaward of the CCCL and consisted of 5,305.6 square feet of damage. These square foot areas represent only the disturbed areas seaward of the CCCL, not the entire area between the CCCL and the Gulf of Mexico. Both areas of damage are within the area where Mr. Withers stated that he smoothed out the sand. As part of the May 4, 2001, investigation, William Fokes, an Engineer I with the Department, took photographs of the damaged areas and prepared an inspection report. Mr. Fokes' report indicates that an approximately 11-foot wide roadway or pathway had been cleared by excavation with the most seaward extent of the road being about 40 feet seaward of the CCCL. In addition, the report states that small dunes and beach vegetation had been destroyed. Mr. Fokes described the damage as excavation or grading done by some kind of machine, which cut and uprooted vegetation and pushed sand to the side as it leveled the ground. Mr. Fokes testified that the damage did not appear to be caused by merely traversing the area. Mr. Sanders, an engineer with the Department, processes CCCL permit applications and supervises Mr. Fokes, a field engineer. On May 4, 2001, Mr. Sanders observed the narrows area in question and confirmed that it looked like a "graded road" in that "[i]t appeared in the road bed that vegetation was gone and had been pushed out to the side, graded away," and that there was "excavation" seaward of the CCCL. Mr. Sanders stated that this activity did not comply with the approved access plan. On May 7, 2001, a Notice of Violation was issued to Mr. Withers for the "the unauthorized clearing and destruction of dunes and native vegetation for the purpose of constructing a roadway seaward of the coastal construction control line." Mr. Greenwood's photographs taken May 2, 2001, when compared with Mr. Fokes' photographs taken May 4, 2001, show that no discernable roadway or pathway was present landward or seaward of the CCCL in the narrows area at the time of Mr. Greenwood's inspection on May 2, 2001. This is evident when comparing Mr. Greenwood's photograph, Exhibit 15a, taken on May 2, 2001, with Department Exhibit 16g taken on May 4, 2001--the roadway or pathway present in the May 4, 2001, photo is absent in the May 2, 2001, photograph, and the vegetation has been removed from part of the area. Comparing Mr. Greenwood's photograph, Department Exhibit 15b, taken May 2, 2001, with Department Exhibits 16c and d, taken on May 4, 2001, also shows that the roadway or pathway was not present on the narrows portion of the Easy Street Easement at the time of Mr. Greenwood's inspection. The previously mentioned pictures, which were used for a comparison, were taken by two different people on separate dates, and from approximately the same locations. Also, Department Exhibit 16j was taken 250 feet east of R-159 and within the narrows area, facing east which shows clearing approximately 40 feet seaward of the CCCL. On May 14, 2001, at the request of the Department, Ken Jones, a principal engineer with Post Buckey et al., performed a damage assessment of the narrows portion of the Easy Street Easement which was seaward of the CCCL. Mr. Jones has a bachelor's degree in civil engineering and a master's degree in physical oceanography. Mr. Jones was familiar with the narrows area having been to Dog Island for recreation during the past 20 years and as a Dog Island property owner for the last three years. Mr. Jones described the narrows area as relatively flat and located between the St. George Sound to the north and the Gulf of Mexico beaches to the south. Between these two areas, the land is undulating sand and fairly consistent vegetation. At the time of Mr. Jones' damage assessment, he determined that a road had been cut through the vegetative portion of the dune of the narrows. Mr. Jones observed cut roots and a majority of the vegetation destroyed. Mr. Jones stated it appeared that the damage was caused by a vehicle with a blade on the front. The result was the road sat down in the sand approximately four to six inches. Mr. Jones stated that the work appeared to have been recent because distinct edges were still present. Mr. Jones took photographs and compiled an inspection report as part of his damage assessment. Mr. Jones testified that the damage "was pretty consistent from both landward and seaward of the [CCCL]." The pictures labeled Department Exhibits 18a1 and 18a2 depict a level pathway or roadway barren of vegetation seaward of the CCCL. Department Exhibit 18a4 is a photograph of a typical vegetated dune. Mr. Jones took this picture in order to have a general idea of what the vegetation coverage was in order to get an idea from a cost-estimating perspective. Mr. Jones's cost estimate for repairing the damage to the narrows area seaward of the CCCL, was approximately $7,500.00.4 Mr. Jones calculated the $7,500.00 by making an estimate of what it would cost to buy coastal vegetation, and by estimating what it would cost to employ laborers to hand rake the sand back into position and to plant the vegetation. Administrative Fine and Damages Jim Martinello, an environmental manager in charge of enforcement and compliance with the Bureau, used Mr. Jones' damage assessment estimate for informational purposes in assessing the damages amount for the narrows area. Mr. Martinello calculated the administrative fine and damages in accordance with Section 161.054, Florida Statues, and Rules 62B-54.002 and 62B-54.003, Florida Administrative Code. Rule 62B-54.002, Florida Administrative Code, provides that the Department shall assess fines for willful violations of, or refusing to comply with, for example, Section 161.053, Florida Statutes, and the fine should be sufficient to ensure immediate and continued compliance. In determining the actual fine within the range, the Department shall consider the offender's past violations, if any, and other aggravating or mitigating circumstances. Aggravating circumstances include prior knowledge of rules. Mitigating circumstances may be considered. Id. Mr. Withers had knowledge prior to the issuance of Amended Permit FR-563 of Department rules regarding permit requirements for construction activities seaward of the CCCL. On October 4, 1996, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible unauthorized construction seaward of the CCCL. This matter was resolved by entering into a consent order. On October 29, 1997, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible permit violation seaward of the CCCL. On November 13, 1997, Mr. Withers was issued a warning letter for possible unauthorized construction seaward of the CCCL. On October 27, 2000, Mr. Withers wrote a letter to Mr. McNeal indicating that he believed that the Easy Street Easement on Dog Island heading south from The Nature Conservancy cul-de- sac, then west to the west end of Dog Island, is landward of the CCCL and, therefore, no permit was necessary to reopen and use the easement, but he would have a surveyor establish the control line prior to work commencing. On November 7, 2000, Phil Sanders replied by letter to Mr. Withers' October 27, 2000 letter, in which Mr. Sanders reminded Mr. Withers of the pertinent rules and laws and suggested that Mr. Withers have the CCCL surveyed. On December 20, 2000, Mr. Martinello sent Mr. Withers an advisory letter informing him that the area he traversed (on July 2000) on the south route of the Easy Street Easement from the cul- de-sac on Dog Island was considered to be a dune as defined by Rule 62B-33.002, Florida Administrative Code. However, Mr. Martinello further advised that the Department did not take any action because "the traversing [did not] cause any substantial damage, it was minimal damage." In regard to the present case, it is more than a fair inference that Mr. Withers had specific knowledge of the CCCL and the Department's laws and rules, and that he knew excavation was not authorized seaward of the CCCL. The information in the prior Findings of Fact was used by the Department, and specifically Mr. Martinello, to determine that the harm to the beach resource or potential harm was major, and the administrative fine assessed was $7,500.00. However, part of Mr. Martinello's determination was predicated on Mr. Jones' assessment that the site one narrows violation was approximately 700 feet in length when, in fact, the area was approximately 500 feet in length, which explains in part the disparity between a 9,800 square foot area and the proven 5,305.6 square foot area. See Finding of Fact 78 and Endnote 4. Even the additional amount of damage of 503.8 square feet for the site two narrows area, when viewed in the aggregate, is significantly less than Mr. Jones' assessment of damages by square feet. (Mr. Martinello used the Jones' assessment as a guideline. Mr. Martinello says that the mistake did not alter his decision, although he was unaware of the mistake until the final hearing. He also says that Mr. Jones recommended a higher damage amount than the $5,000.00 assessed by the Department in its preliminary Final Order. He did--$7,500.00 for 9,800 square feet of damage.) Grossly negligent or knowing violations of statutes and Department rules regarding coastal construction seaward of the CCCL, which result "in harm to sovereignty lands seaward of mean high water or to beaches, shores, or coastal or beach-dune system(s), including animal, plant or aquatic life thereon," shall be considered in determining damages. Rule 62B-54.003(1), Florida Administrative Code. Rule 62B-54.003(2), Florida Administrative Code, provides that a damage amount greater than the minimum amounts may be assessed to ensure, immediate and continued compliance and the Department may consider, e.g., the need for restoration and the damaged ecological resource. The Department determined that the violation was knowing based on the factors mentioned above. The Department also considered the need for restoration and the damage to ecological resources and whether the amount would ensure immediate and continued compliance. Id. The Department determined that there was harm to the resource and that it was major and knowing. The Department proposed to assess the minimum damage amount of $5,000.00. On January 11, 2002, the Department entered a preliminary Final Order for the unauthorized grading and destruction of dunes and dune vegetation seaward of the control line for the purpose of constructing a roadway. The amount assessed in the Final Order was $12,500.00, $7,500.00 in administrative fines and $5,000.00 in damages, as described above. As noted, there has been harm to the beach area resource seaward of the CCCL and the Department proved the need for restoration and the damage to the ecological resource. In mitigation, Mr. Withers' construction access plan was approved by the Department. The Department knew that Mr. Withers intended to use the access route, which ran seaward of the CCCL from approximately R-157 to R-159 (except for a small portion between R-158 and R-159) in the narrows area; that Mr. Withers planned to transport equipment and materials by truck using the access route and necessarily would traverse seaward of the CCCL; and that he would continuously use the access route until the project was completed. The actual damaged area is less than originally determined by Mr. Jones, thus the need for restoration reduced. Mr. Jones, without the benefit of a survey, estimated the total cost to restore the damaged area of 9,800 square feet to be approximately $7,500.00. The total square feet of damage proven in this proceeding is 5,809.4 square feet in the narrows area and the Department is requesting $12,500.00 in fines and damages. Based on an approximate ratio of square feet and dollars needed to restore, a damage assessment in the amount of $4,500.00 is appropriate. Balancing the aggravating and mitigating circumstances, a fine of $3,500.00 is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: That a final order be issued adopting this Recommended Order; and Within 30 days of a final order being effective, Petitioners shall pay a fine of $3,500.00 and $4,500.00 in damages with the total amount of $8,000.00, to the Department of Environmental Protection. DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2003.
The Issue Does a statement by an agency that its regulatory authority is limited by Section 161.58, Florida Statute, constitute a non- rule policy? Does a statement by an agency that fees levied under authority of Section 161.58, Florida Statutes, by county governments for beach driving do not constitute revenue for purposes of invoking its regulatory jurisdiction pursuant to Florida Administrative Code Rule 18-21.005 (Rule 18-21.005) constitute a non-rule policy?
Findings Of Fact Petitioners Petitioner Shirley Reynolds (Reynolds) resides and owns beachfront property overlooking the Atlantic Ocean in New Smyrna Beach, Volusia County, Florida. Reynolds does not own to the mean high water line, and her property is not adjacent to the sovereign submerged lands held by the Trustees. Reynolds “shares riparian rights with the public.” Reynolds has owned her oceanfront home since 1981. She has observed beach driving by the general public on the beach and in the shallow water in the vicinity of her home. She enjoys the beachfront for “regular recreational, traditional recreational purposes.” Petitioner Diann Bowman (Bowman) resides and owns property that extends to and adjoins the mean high water line of the Atlantic Ocean in New Smyrna Beach, Volusia County, Florida. Bowman has observed the general public driving on the beach and in shallow waters of the Atlantic Ocean in the vicinity of her property. Bowman goes swimming in the ocean, builds sand castles by the edge of the water with her grandchildren, and walks on the beach with friends. Petitioners did not have any requests for leases or applications for action pending before the BOT, and Volusia County had not made an application to the Trustees for any activity permit or lease. Petitioner Bowman was not even aware of Reecy's e- mail, and could not articulate how she was affected by it. Although Reynolds testified at length about the impacts of beach driving and beach concessions between her home and the ocean, she failed to show how she was affected by Reecy's statements that the BOT does not regulate beach driving. In response to counsel’s question of what personal interest she has in whether or not the Trustees require authorization to use state land for motor vehicle traffic in front of her home, she responded, “[I]f and when they ever deal with it, it will certainly raise the consciousness of the human safety element.” Petitioners testified regarding the adverse impacts of beach driving on their property and their enjoyment of their property. Beach driving has an adverse impact upon the property values and upon their enjoyment of their property. Respondents The BOT is an agency of the State of Florida, consisting of the Governor and Cabinet. (Art. IV, s. 4 (f), Fla. Const.) The BOT holds the title to the State’s sovereign submerged lands acquired at statehood “for the use and benefit of the people of the state,” pursuant to Chapter 253, Florida Statutes. (§§ 253.001, 253.03, and 253.12, Fla. Stat.) Private use of such lands generally requires consent of the BOT and must not be contrary to the public interest. The BOT is required to manage and conserve state-owned lands, including sovereignty lands, by law and is granted rulemaking authority to that end. The Department functions as the staff for the BOT, and issues leases and other authorizations for private parties to use sovereign submerged lands under Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code. In carrying out its duties with relationship to the BOT, the Department implements policy as determined by the BOT, to include taking some final agency actions. The Department would be the agency through which the BOT would initiate rulemaking. The Department does not have delegated authority to adopt rules for the BOT. Ken Reecy (Reecy) is a Senior Management Analyst Supervisor in the Department’s Division of State Lands. One of Reecy’s job duties is to provide responses to requests for BOT’s public records housed in the Division of State Lands of the Department. On August 5, 2003, Ross Burnaman e-mailed Eva Armstrong of the Department the following public records request: Hi Eva-I am hoping that you can assist me with this inquiry for public records. I'm looking for any Trustees authorization for the use of state lands (including uplands and submerged lands) for beach driving by the general public or commercial vendors. While I'm aware of Section 161.58, Florida Statutes, I'm of the opinion that Trustees' authorization is still required for beach driving on state lands. Most local governments that allow beach driving (e.g. Gulf County, Volusia County) charge a fee for that activity. That would appear to trigger, Rule 18-21.005(b)(2), FAC, and the requirement for a lease. As I understand it, public beach driving is allowed in parts of the following counties: Nassau, Duval, Flagler, St. Johns, Volusia, Gulf and Walton counties. Thanks in advance for you assistance. Best regards, Ross Burnaman (phone number deleted) Ms. Armstrong passed this request to Ken Reecy of the Department who replied to Mr. Burnaman with the following e-mail message: Mr. Burnaman Concerning your request as to any authorization by the Board of Trustees for beach driving and fees triggering Rule 18- 21.005(b)(2)[sic]: We are unaware of any instance in which the issue of beach driving has been brought before the Board of Trustees for authorization. Further, in discussions with staff from our legal department, it is felt that s. 161.58 sufficiently covers the issue and that authorization from the Board is not necessary. We are also of the opinion that fees counties charge for beach driving would not trigger Rule 18-21.005(b)(2)[sic]. If you have any further questions on this issue, please contact Suzanne Brantley in EIP's Office of General Counsel (phone number deleted) The e-mail above contains two potential policy statements; one concerning a statute and the other concerning a rule. The analysis of each differs slightly. The BOT was authorized at one time to regulate all the uses of state sovereignty lands, to include regulation of driving on the state's beaches, i.e., that portion of land seaward of the mean high water line (hereafter: beach.) The BOT restricted the operation of private vehicles on the beaches via rule. The Legislature of the State of Florida enacted Section 161.58, Florida Statutes, which authorized those counties which had traditionally permitted driving on the beach to regulate the operation of privately owned vehicles on the beaches in their counties. Several of the counties which had traditionally permitted driving on the beach permitted privately owned vehicles to be operated on the beach in their counties and charged a small fee to defray the costs of providing parking, life guards, and traffic direction on the beaches. The BOT attempted to intervene in those counties which charged fees for beach driving on the basis that the fees being charged were "revenue" producing. The Legislature of the State of Florida amended Section 161.58, Florida Statutes, to specifically authorize the counties to collect reasonable fees to defray their costs of regulating beach driving. The statements that are challenged have not been adopted as a rule. Reecy testified at the hearing. Reecy only intended to give Burnaman information related to his public records request. The portion of Reecy's e-mail that is being challenged was intended to explain why no records were found. Reecy responded because Burnaman had sent follow-up e-mails to Reecy’s supervisor, Armstrong, the Director of the Division of State Lands. Reecy knew that Armstrong had a practice of providing information to the public when it was requested. Reecy is not charged with implementing or interpreting Florida Administrative Code Rule 18-21 and does not process applications for leases or other authorizations from the BOT. Reecy's statement that no records were found is not a policy statement and has not been alleged to be one by Petitioners. Reecy conferred with Department legal staff before issuing his statement about Section 161.58, Florida Statutes. Reecy did not state that Section 161.58 exempted counties from getting BOT authorization for beach driving, as Petitioners state in their Petition, for several reasons: first, Reecy is not the person on the BOT’s staff who makes such determinations; second, there was no factual determination pending, i.e., no request for declaratory statement or request for an exemption or authorization; and third, the statute cited and its history indicate that the Legislature has vested the exclusive authority to regulate beach driving in those counties in which it traditionally occurred to county government in those counties. James W. Stoutamire (Stoutamire) is the principal Department employee who is charged with interpreting and applying the BOT’s rules. Stoutamire was the person to whom authority had been delegated to make such policy determinations. Burnaman's request was not presented to Stoutamire, and Reecy did not consult with Stoutamire. Although it is a statement concerning general law, Reecy's first statement regarding Section 161.58, Florida Statutes, does not assert agency jurisdiction or exempt a specific factual predicate from agency jurisdiction. Reecy also discussed Burnaman’s reference to Florida Administrative Code Rule 18-21.005(1)(b)2. with the Department's legal staff. Reecy's references to the section mistakenly cites it as Rule 18-21.005(b)2. Regardless of Reecy's intent, his answer constitutes an interpretation of the rule as applied to the fees charged by counties for beach driving. The BOT's rules provide what types of private activities must have consent prior to their being undertaken on sovereign submerged lands. They do not contain a list of all of the many public activities that occur on Florida’s beaches, shores, and waters that do not require consent. The BOT's rules in Chapter 18-21 are not intended to prevent air or noise pollution, promote public safety, protect property values, provide peace and quiet, or protect quality of life. These are the concerns about which Petitioners testified as diminishing their peaceful enjoyment of their property rights. Beach concessions above the mean high water line do not fall within the Trustees jurisdiction or control.
The Issue Whether Permit Number 9220003617 issued by Monroe County, Florida, to Jeanne and Aldo Faga is inconsistent with the Monroe County Comprehensive Plan and Monroe County Land Development Regulations. Three areas of dispute were involved in this proceeding: Whether the permitted development (as modified by stipulation) is inconsistent with provisions requiring development to be clustered on the least environmentally sensitive portion of the site; Whether the permitted development (as modified by stipulation) is inconsistent with provisions pertaining to construction in mangroves and submerged lands; and Whether the permitted development (as modified by stipulation) is inconsistent with provisions establishing setback requirements from beach berms that are known turtle nesting areas.
Findings Of Fact THE PARTIES Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Jeanne Faga and the Estate of Aldo Faga, deceased, hereafter referred to collectively as the "Fagas," are the owners of approximately ten acres of real property known as Lots 23 through 32, Block 21, Coco Plum Beach subdivision, Fat Deer Key, in unincorporated Monroe County, Florida. This property, acquired by the Fagas in 1971, has been subdivided by the Fagas into four parcels. Lots 23-24 have been consolidated and will be referred to as Parcel A. The remaining lots have been divided into Parcels B, C, and D. Grill Construction, Inc., is a Florida corporation and is the general contractor for Respondent for the building permit at issue. Monroe County, Florida, is a political subdivision of the State of Florida. Monroe County did not actively participate in this proceeding. THE DEVELOPMENT ORDER AND ITS HISTORY Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes. These statutory provisions require that Monroe County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes. Monroe County has adopted a comprehensive plan, effective September 15, 1986, which complies with the Principles for Guiding Development and which has been approved by the Petitioner and by the Administration Commission. The Monroe County comprehensive plan is implemented by and through its adopted land development regulations, codified primarily in Chapter 9.5, Monroe County Code (M.C.C.). While Respondent originally applied for a development permit for one residence on each of the four parcels and for an access bridge on Parcel A, the subject of this permit appeal proceeding is the development order for Parcel A only. If the project is permitted, it is contemplated that the access bridge at issue in this proceeding will provide access to the residences the Fagas hope to build on Parcels B, C, and D. The initial permit application for a residence on each of the four (4) parcels and an access bridge on Parcel A capable of use by motor vehicles was denied by Monroe County staff. The Fagas thereafter appealed the staff denial to the Planning Commission. The Planning Commission reviewed the project and affirmed the denial by staff. The Fagas thereafter appealed the denial by the Planning Commission to the Monroe County Commission. On July 28, 1993, the Monroe County Board of County Commissioners adopted Resolution No. 299-1993, which reversed the denial of the appeal by the Planning Commission, and authorized the Fagas to go forward with the building permit applications. On September 23, 1993, Monroe County issued to the Fagas and Grill Construction Co. building permit number 9220003617, the development order that is the subject of this proceeding. This development order includes public works permit number 0764 and building permit number 9220003615, which address the proposed access bridge on the subject site. The development order approves the permit for the access bridge that was issued by the Department of Environmental Protection. This development order authorizes the construction of a 4,501 square foot single family home with 2,426 square feet of porches, a 813 square foot enclosure for parking and storage, fill for a driveway, a separate guest house and an elevated bridge approximately 12 feet wide and 160 feet long. The building permit issued by Monroe County at issue in this proceeding did not include construction on Parcels B, C and D. The Department timely filed its challenge to the subject development order pursuant to Section 380.07, Florida Statutes. STIPULATED PERMIT CONDITIONS The parties stipulated that the following modifications to the development order would be made if the project is permitted: 2/ The subject development permit conditions shall be amended to state that the subject site plan shall include no drainage swales and no concrete slabs. The subject development permit conditions shall be amended such that the site plan shall include no fill or excavation between the proposed structures and the salt water slough, for a driveway or for any other purpose, except for minimal fill necessary for the ramp at each end of the proposed bridge. No fill or excavation shall occur within the existing mangrove habitat as depicted on the site plan and as verified in the field prior to construction. The subject development permit conditions shall be amended to reflect that the access bridge reflected on the site plan rendered with the building permit application shall be of a length so as to clear the mangroves and salt water slough on site such that either end of the access bridge will terminate beyond the end of the mangrove lines and the boundaries of the slough. The subject development permit conditions shall be amended to reflect the guest suite be connected to the main structure (single family residence, or "SFR") by an enclosed interior hallway, atrium or the like, so as to form a single habitable unit. In addition, the Fagas will execute a restrictive covenant to run with the land which prohibits rental, sale or lease of the guest suite, or anything less than the entire single family residence. Each stairwell to the SFR will access a deck which provides uniform access to each room in the SFR, and the site plan shall include no additional independent access to the guest suite. Only minimal excavation will be allowed for transplantation on the beach berm, i.e., the absolute minimum amount necessary to transplant the native species identified in the County-approved transplantation plan. The transplantation shall occur in a manner which preserves the contour of the beach berm and ground cover resources on site and restores the area cleared for development to natural conditions which include native plant species transplanted on site. GENERAL DESCRIPTION OF PARCEL A Most of the land constituting the four Faga parcels was "created" in the late 1950s, by depositing seaward (south) of the then existing shoreline spoil material from offshore dredging. The original "beach" in this area of Fat Deer Key (prior to the dredge and fill activities) existed just south of Coco Plum Drive, which now serves as the northern border of the Faga parcel. As a result of this dredge and fill activity, most of the dry land that presently exists on Parcels A-D was created from lands that were submerged. Additionally, the saltwater slough that exists on Parcels A-D was created as a result of this dredge and fill activity. The subject site, Parcel A, is bordered on the north by Coco Plum Drive, on the West by a multistory condominium development, on the South by the Atlantic Ocean, and on the East by Parcel B. Parcel A is rectangular, with the East - West measurement being approximately 215 feet and the North - South measurement being approximately 375 feet. The Eastern third of the central portion of the Faga parcel contains a shallow, manmade water body (the "saltwater slough"), which is fringed with mangroves. Because the saltwater slough was created by the dredge and fill activity, it is appropriate to classify the saltwater slough as a manmade water body pursuant to Section 9.5-4 9(M-4), M.C.C., which defines the term "manmade water body" as follows: (M-4) Manmade water body means a water body that was created by excavation by mechanical means under human control and shall include a canal, cut basin or channel where its edges or margins have subsequently been modified by natural forces. All of Parcel A, meets the following definition of "disturbed land" found at Section 9.5-4(D-14), M.C.C.: (D-14) "Disturbed Land": Disturbed land means land that manifested signs of environmental disturbance which has had an observable effect on the structure and function of the natural community which existed on the site prior to the disturbance. The remainder of the property, including the sandy beach area and beach berm, will be discussed in detail below. CLUSTERING REGULATIONS Section 9.5-345(a), M.C.C., requires clustering of development as follows: "Clustering": When a parcel proposed for develop- ment contains more than one (1) habitat type, all development shall be clustered on the least sensitive portions of the parcel subject to the maximum net densities of Section 9.5-262, the open space requirements of Sections 9.5-262 and 9.5-269 and the performance standards of this section. For the purposes of this subsection, the sensitivity of habitat types shall be as listed with subsection being the most sensitive and subsection (18) being the least sensitive. The least sensitive part of the parcel shall be fully utilized prior to the distribution of density to the next least sensitive habitat type. High hammock (high-quality); Palm hammock; Cactus hammock; Beach/berm; Pinelands (high-quality); Salt marsh and buttonwood associations; High hammock (moderate-quality); Low hammock (low-quality); Low hammock (moderate-quality); Pinelands (low-quality); High hammock (low-quality); Low hammock (low-quality); Disturbed with hammock; Disturbed with salt marsh and buttonwood; Disturbed beach/berm; Disturbed with exotics; Disturbed with slash pines; Disturbed. Landowners are required to cluster development on the least sensitive portions of their property, subject to open space requirements for the respective classifications and subject to the maximum density for a parcel. An area classified as "disturbed" has a twenty percent open space requirement. Parcel A has a maximum density limit of 2.5 units per acre. HABITAT DETERMINATION -- GENERALLY To determine whether it is necessary to cluster this development, it is necessary to determine the habitat classification for Parcel A. Monroe County has adopted an existing conditions map that purports to show the existing habitat classifications on Parcel A. The existing conditions map reflects two habitat classifications for Parcel A: open water (the area of the saltwater slough) and disturbed with buttonwood and salt marsh. The area designated on the Aslan survey 3/ as the saltwater slough is properly designated as open water. The parties agree that the classification on the existing conditions map for the remainder of Parcel A as "disturbed with buttonwood and salt marsh" is incorrect. The parties disagree as to the appropriate habitat classification for the portions of Parcel A landward and seaward of the saltwater slough. Brian Winchester, on behalf of the Fagas, spent in excess of 80 hours on the four Faga parcels, conducting visual observations and taking core samples. He conducted field surveys of the four parcels during July 9-11, September 23- 24, October 20-22, and November 11-12, 1992. Staff of the Monroe County Environmental Resources Department conducted a joint site visit to the parcels with Mr. Winchester on September 23 and October 21, 1992. Mr. Winchester identified each small area of the parcel that he believed justified a distinct habitat classification and, based on a qualitative and quantitative analysis (which included counting individual stems in some areas), determined whether there was a dominate species for each area. In October and November, 1992, Mr. Winchester staked the edges of each portion of Parcel A that he believed constituted a distinct habitat. Those staked areas reflecting a plant community were then measured by Aslan, Inc. and depicted on the Aslan survey. The Aslan survey also marks the mean high water line on the property and measures the topography of all four parcels. Kathleen Edgerton and Patricia McNeese, the biologists who testified for the Petitioner, disagreed with Mr. Winchester's habitat evaluation. They conducted separate on-site inspections of the property, each with the benefit of the Aslan survey, and each determined what she considered to be the appropriate habitat classifications on Parcel A. Ms. Edgerton and Ms. McNeese were in agreement as to how the habitats of Parcel A should be classified. Petitioner's experts determined the extent of the saltwater slough and the mangrove fringe surrounding it. They determined the extent of the beach berm (which they consider to extend to the mangrove fringe on the seaward side of the slough) and determined the habitat of Parcel A seaward of the mangrove fringe. They then determined the habitat classification for the portion of Parcel A lying landward of the mangrove fringe. Based on their on-site evaluations of the property, Petitioner's experts did not believe that the portion of Parcel A lying landward or seaward of the mangrove fringe justified more than one habitat classification. In resolving the conflicting testimony between Respondents' expert and Petitioner's experts, more weight is given to the opinions expressed by Ms. Edgerton and Ms. McNeese because they have had extensive experience in conducting habitat classifications for lands in the Florida Keys as a part of their official responsibilities. While Mr. Winchester is an accomplished biologist, his experience in making habitat determinations in the Florida Keys is limited. The undersigned is persuaded by the testimony from Petitioner's experts that observations of species on site for making habitat determinations involve the subject parcel in larger perspective than that used by Mr. Winchester. HABITAT DETERMINATION -- LANDWARD OF THE SLOUGH Mr. Winchester expressed the opinion that the following habitat classifications exist on the portion of Parcel A lying landward of the mangrove fringe: a small strip of land adjacent to the road that should be classified as "disturbed"; a larger strip of land that should be classified as "disturbed with exotics"; and a third strip of land that should be classified as "disturbed with salt marsh and buttonwood". Petitioner's experts testified that the entire portion of Parcel A landward of the mangrove fringe should be classified as "disturbed". This dispute is resolved by finding that the greater weight of the evidence establishes that the portion of Parcel A landward of the mangrove fringe should be classified as "disturbed". While exotics, including Australian Pines and Brazilian peppers, exist in different areas of this part of the property, Petitioner's experts established that other vegetation exists and that exotics do not dominate the portions of the property classified by Mr. Winchester as "disturbed with exotics". Likewise, it is concluded that the portion of the property classified by Mr. Winchester as "disturbed with salt marsh and buttonwood" should be classified as "disturbed" since there is little salt marsh and buttonwood does not dominate. Further, there exists in this area trees and vegetation that are not typically found in an area designated as "salt marsh and buttonwood". THE MANGROVE FRINGE AND THE SALTWATER SLOUGH The Department of Environmental Protection (DEP) has claimed jurisdiction of the saltwater slough, an assertion that is not challenged in this proceeding. The parties disagree as to whether the saltwater slough is tidally influenced and whether the mangrove fringe around the saltwater slough meets the definition of a "mangrove community". The salt water slough consists of shallow, landlocked water over mud, sand and marl bottoms. The water level increases with heavy rains and infrequent storm tides, and decreases during periods of drought. The slough has been observed to be dry during time of drought, negating any inference of regular tidal influence. Based primarily on Mr. Winchester's observations and quantitative measurements, it is concluded that there is no regular tidal influence on the slough. That the saltwater slough is ecologically significant and provides a valuable resource for birds, especially during storms, was not seriously disputed at the formal hearing. The birds that normally use the beach will come into the slough, where they can stay within the protection of the mangroves. They feed there, and are not subjected to wave force and wind that they would receive if they were on the outside. The salt water slough is encircled by a fringe of mangroves. Mr. Winchester classified the mangrove fringe as "disturbed with mangroves". This classification is consistent with similar classifications on Monroe County's existing conditions maps, but the classification is not separately listed in the County's land development regulations pertaining to clustering because specific regulations limit development in mangroves. 4/ Whether the areas delineated by the Aslan survey as being the mangrove fringe is classified as "mangroves" or as "disturbed with mangroves" is irrelevant for determining the issues presented by this proceeding. HABITAT DETERMINATION - WATERWARD OF THE SLOUGH Section 9.5-4(B-3), defines the term "beach berm" as follows: Beach berm means a bare, sandy shoreline 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. Parcel A contains a sandy beach, including a seaweed wrack and some low vegetation which is typical of beach berm vegetation as defined in the Monroe County Code. Behind the low vegetation, lies an area of Australian Pine trees that extends to the seaward extent of the mangrove fringe. Petitioner asserts that the beach berm on Parcel A extends to the mangrove fringe and that the proper classification for all of Parcel A seaward from the mangrove fringe is "disturbed beach berm". Respondents assert that seaward from the mangrove fringe on the east side of the parcel there is a small section that should be classified as disturbed with salt marsh and buttonwood, that the area with the Australian Pines should be classified as disturbed with exotics, and that the remaining portion should be classified as disturbed beach berm. The accepted characteristics of beach berm soil, as defined in the LDRs and Comprehensive plan, are "calcareous" and "unconsolidated". Reference to the soil as calcareous refers to its origin, while the consolidation of the soil refers to its compression and its cohesiveness. The soil from the mean high water line to the mangrove fringe seaward of the slough is unconsolidated, calcareous sand. The only area that appears to exhibit consolidated soils is that which has been compacted by vehicular use in the property. Vegetation typical of beach berms is scattered throughout the parcel between the mean high water mark and the mangrove fringe. The area of Parcel A that lies between the mean high water mark and the mangrove fringe seaward of the saltwater slough, is beach berm. This portion of Parcel A is properly classified as "disturbed beach berm" as opposed to "beach berm" because the entire parcel is disturbed lands and because Australian Pines have encroached on a portion of the beach berm. CLUSTERING ANALYSIS Petitioner established that development on Parcel A (with the exception of the access structure to be discussed below) should be limited to the area landward of the slough that should be classified as "disturbed". The Petitioner established that this area of Parcel A is large enough to accommodate a reconfigured version of the development. TURTLE NESTING SETBACK Section 9.5-345(3)(f), M.C.C., provides for a setback of construction from turtle nesting areas in areas designated as disturbed beach berm as follows: 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 . . . While no specific sites on Parcel A were identified as active nesting sites, the beach on which Parcel A is located is a known turtle nesting area. The expert testimony from Patrick Wells established that marine turtles most frequently nest within 50 feet of the mean high water line. The expert testimony of Mr. Metcalf established that the setback of fifty feet required in Section 9.5-345(o)(3)f, M.C.C., should be typically measured from the backslope of any beach berm crest. If there is no beach berm crest on a parcel or if the beach berm crest is more than fifty feet from the mean high water line, the setback should be measured from a line that is parallel to and fifty feet landward of the mean high water line. 5/ Mr. Winchester identified the existence of a beach berm "crest" within the area of Parcel A that is designated on the Aslan survey as disturbed beach berm. Mr. Winchester testified that he observed a three or four inch drop behind the crest and was of the opinion that the beach berm crest was formed by wind and wave action. The crest, as identified by Mr. Winchester, is marked on the Aslan survey and is just a few feet from the mean high water line. Petitioner's experts testified that there was no crest and that there was a gradual rise in the beach berm elevation from the mean high water mark to the beginning of the mangrove fringe. This conflict in the evidence is resolved by finding that there is no discernible beach berm crest until it reaches the mangrove fringe. This finding is consistent with the expert testimony presented by the Petitioner, the photographic evidence, and the topographical markings on the Aslan survey. Further, this finding is consistent with the manner in which this property was created by the depositing of fill. Based on the foregoing findings, it determined that the beginning of the setback line should be from a line parallel to and fifty feet landward of the mean high water line. The distance of the setback itself should be fifty feet as required by Section 9.5-345(o)(3)f, M.C.C. The development order at issue in this proceeding does not comply with the turtle nesting setback requirement. THE ACCESS STRUCTURE Section 9.5-345(m), M.C.C., authorizes construction of piers, docks, utility pilings and walkways on areas with mangroves and submerged lands. All structures on any submerged lands and mangroves are required to be designed, located, and constructed on pilings or other supports. DEP has issued a permit for the access structure that, if constructed, will be on pilings that are set in areas of the mangrove fringe and in areas of the slough. As permitted by DEP, the access structure would be 12 feet wide and 160 feet long. As noted above, the parties have stipulated that the subject development permit conditions shall be amended to reflect that the access bridge reflected on the site plan rendered with the building permit application shall be of a length so as to clear the mangroves and salt water slough on site such that either end of the access bridge will terminate beyond the end of the mangrove lines and the boundaries of the slough. The DEP permit contains appropriate special and general conditions to assure that the access structure will be constructed consistent with pertinent permitting criteria. The primary objection to the access structure raised by the Petitioner is to the width of the structure. Mr. Metcalf testified, without contradiction, that the acceptable standard in the planning profession for the maximum width for a walkway is six feet. Based on that testimony, it is found that the access structure should be authorized with the conditions imposed by DEP and as modified by the parties's stipulation, but with the additional condition that the width of the structure be changed from twelve feet to six feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order that adopts the findings of fact and conclusions of law contained herein and denies the subject development order number 9220003617. The permit can be approved if the Fagas choose to modify its application to conform to the findings and conclusions contained herein. DONE AND ENTERED this 1st day of November, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of November 1995.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Ocean Dunes Development Corporation, is the developer of a residential condominium known as Ocean Dunes, located in Highland Beach, Palm Beach County, Florida. Count One The first closing on a unit in Ocean Dunes occurred on April 30, 1982. The Respondent controlled the operation of the condominium association from the incorporation of the association up to February 4, 1986, when unit owners other than the developer elected a majority of the members of the board of administration of the condominium association. Pursuant to the Articles of Incorporation of the condominium association, the board of directors is composed of three members. According to the by-laws of the association, unit owners other than the developer are entitled to elect at least one-third of the members of the board when they own fifteen per cent of the units in the condominium. The by-laws further provide that within sixty days after unit owners other than the developer are entitled to elect a member of the board, the association shall call and give not less than thirty days notice of a meeting of the unit owners for this purpose. on July 15, 1982, unit owners other than the developer owned fifteen per cent of the total number of units in the condominium. The first association unit owner meeting after July 15, 1982, occurred in April of 1983. Present at the meeting were several unit owners and Mr. Philip Connor, president of both the association and the developer corporation. According to the association by-laws, a quorum is achieved by a majority of the votes of the entire membership. In April of 1983 there were 48 units in the condominium, 17 units were owned by someone other than the developer. Therefore, the developer's unit votes were absolutely necessary to achieve a quorum. At the beginning of the meeting, Mr. Connor, the president of the developer corporation, stated that he was not authorized to utilize the developer's unit votes through proxy or otherwise. Mr. Connor stated: First item, obviously is to determine whether we have a quorum in order to properly conduct business. I am not voting on behalf of the developing company this evening. Mr. Hubert (the general counsel of the developer) as far as I know we do not have a quorum. Therefore, the meeting is officially adjourned. But, Mr. Connor went on to add: However, I would like to spend some time with you this evening to go over and formulate any questions or problems, et cetra. Unit owners other than the developer did not elect a member of the board of administration of the association until April 17, 1984. Count Two While operating the condominium association, the Respondent used condominium association common funds to pay for certain carpentry expenses in the amount of $1,836. The carpentry expenses were the responsibility of the Respondent as developer. During the initial phases of the investigation of this case by the Department of Business Regulation, the Respondent agreed that the carpentry expenses were the developer's responsibility and reimbursed $1,836 to the association on August 29, 1984. Count Three An "election period" is a mechanism by which the developer, as the owner of units, is excused from the payments of assessments against those units for a certain period of time. See Section 718.116(8)(a)(1), Florida Statutes. During an election period, the developer does not pay assessments on developer-owned units, but instead pays the difference between the common expenses of the association and monies received from other unit owners in the form of assessments during that period of time. In other words, if assessments collected from other unit owners are insufficient to meet common expenses, the developer is required to pay the deficiency. The election period must terminate no later than the first day of the fourth calendar month following the month in which the first closing of a unit in a condominium occurs. See Section 718.116(8)(a)(1), Florida Statutes. The first closing on the first unit in Ocean Dunes Condominium occurred on April 30, 1982. During the election period, the developer periodically funded the association and made available to it funds to pay required bills on a current, "as-due" basis. Thus, the Respondent attempted to satisfy its election period payment requirements on a cash accounting basis. The developer did not perform an election period calculation on the condominium's books and records to determine the difference between expenses incurred during the election period and assessments collected form other unit owners. Mr. Larsen, a certified public accountant and the Petitioner's expert witness, reviewed the condominium's financial records and calculated an election period deficit of $45,077.88. Mr. Larsen arrived at the figure of $45,077.88 by calculating that assessment revenues from non-developer unit owners amounted to $5,393.92 and that common expenses during the period amounted to $50,471.40, the difference being $45,077.88. The $45,077.88 figure arrived at by Larsen was composed in part of unfunded reserves during the election period, certain association bills which were left unpaid during the election period but had balances which came due later and certain prepaid assessments from other unit owners paid in advance, but which would have come due after the expiration of the election period. In arriving at the election period deficit of $45,077.88, Larsen completed a review or compilation of the financial records of the association using generally accepted principles of accounting for a review or compilation of financial statements. Count Four Unit owners other than the developer remitted their assessments on a quarterly basis. In contrast, the Respondent developer provided some funds to the association on a monthly, "as-needed" basis. Typically, when the association funds became inadequate to pay outstanding bills, the developer would contribute its assessments. At the end of each calendar year, the developer calculated an outstanding assessment liability on its inventory units and recognized that liability on the association's books. The Declaration of Condominium at Article 6.2, provided that assessments not paid on a timely basis would bear interest at the rate of 10% per annum from the date when due until paid. Although unit owners were paying their assessments on a quarterly basis, neither the Declaration of Condominium nor the by-laws established a date when assessments were due. Count Five The percentage of ownership interest of each individual unit owner in the common elements of Ocean Dunes Condominium is set forth in Exhibit B to the Declaration of Condominium. The percentage of common elements per unit ranged from a minimum of .01959 to a maximum of .02170. The quarterly assessments to unit owners were not based on the percentages of their ownership of the common elements as outlined in the recorded Declaration. Prior to the formal hearing, the Respondent acknowledged that the proper percentages were not being assessed, and adjustments were made for all unit owners' assessments. Count Six A condominium association's annual budget must include a reserve account (unless specifically waived by the association) for capital expenditures and deferred maintenance. The reserve account of the association is set aside for long term items such as roof replacement, building painting and pavement resurfacing. See Section 718.112(2)(f), Florida Statutes. Ocean Dunes Condominium Association established a budgeted annual reserve figure of $6,000 per year (reserves were not waived). On December 31, 1984, the reserve account, if fully funded, would have contained $16,569.86. While in control of the condominium association, the Respondent did not maintain a separate, funded reserve account. Rather, the Respondent showed the reserve account as a liability in its accounting statements. The listing of a reserve account as a liability on a financial statement would not violate, nor be contrary to, generally accepted principles of accounting. The Respondent believed in good faith that it was allowed to carry reserves as liability in the association's financial books. Count Seven The Respondent employed the accounting firm of Coopers and Lybrand to handle the financial books and records of the condominium association. Coopers and Lybrand has offices in both Broward and Palm Beach Counties. Although the Respondent maintained the corporate books and records of the association at the Royal Palm Beach Bank in Palm Beach County, portions of the accounting records were routinely transferred between Coopers and Lybrand's offices in Palm Beach and Broward Counties. Count Eight On February 4, 1986, unit owners other than the developer assumed control of the condominium association. After turnover, the Respondent provided the association with the annual audits performed by the accounting firm of Coopers and Lybrand. The annual audits did not cover the election period and the period early in 1986 which the audit for the year 1985 did not cover. After turnover of counsel of the association, the annual audits were the only review of the association's financial records provided to the association by the developer. After turnover, the association at all times made the corporate books and records available to the developer. Upon turnover, the Respondent offered to the association 9 pages of separate plans and specifications utilized in the construction of the condominium. Although the plans contained the certificate of a surveyor, only one of the nine plans contained a signed affidavit that the plans were authentic.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is. RECOMMENDED that a Final Order be entered: Requiring the Respondent pay to the association $45,077.88 (representing the deficit which existed during the developer election period) no later than 45 days from the date of the Final Order; Requiring that Respondent obtain, and provide to the association, no later than 60 days from the date of the Final Order, a turnover review of the financial records of the association prepared in strict compliance with Section 718.301(4)(c), Florida Statutes, and Rule 7D-23.03, Florida Administrative Code; Requiring that Respondent obtain and deliver to the association no later than 60 days from the date of the Final order, a copy of the construction plans of the condominium with a certificate in affidavit form prepared in strict compliance with Section 318.301(4)(f), Florida Statutes; and Assessing a civil penalty of $5,000. DONE AND ORDERED this 22nd day of December, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1986. COPIES FURNISHED: Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Philip R. Connor, Jr., President Ocean Dunes Development Corporation Suite 205 2929 East Commercial Boulevard Ft. Lauderdale, Florida 33308 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Thomas A. Bell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Richard Coats, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: Addressed in Procedural Background section. Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 4. Adopted in substance in Findings of Fact 5 and 9. Adopted in substance in Findings of Fact 6, 7 and 8. Addressed in Conclusions of Law section. Adopted in substance in Findings of Fact 10 and 11. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 15. Rejected as a recitation of testimony. Rejected as misleading as stated, but adopted in substance in Finding of Fact 18. Rejected as misleading as stated, but adopted in substance in Findings of Fact 19, 20 and 21. The last sentence of Paragraph 19 is rejected as not supported by the weight of the evidence. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Partially adopted in Finding of Fact 25. Matters note contained therein are rejected as subordinate. Partially adopted in Findings of Fact 25 and 26. Matters not contained therein are rejected as subordinate. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 29. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 32. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 34. Matters not contained therein are rejected as argument and/or subordinate. Adopted in substance in Finding of Fact 33. Adopted in substance in Finding of Fact 35. Rulings on Proposed Findings of Fact Submitted by the Respondent: Partially adopted in Findings of Fact 2, 3, 4, 5, 6, 7 and 8 Matters not contained therein are rejected as Subordinate and/or a recitation of testimony. Rejected as not supported by the weight of the evidence. The first sentence of this paragraph is rejected as contrary to the weight of the evidence. The remainder of the paragraph is adopted in substance in Findings of Fact 12, 13, 14, 15, 16, 17 and 18. Matters contained in Paragraph 3 which are inconsistent with the Findings of Fact previously mentioned are rejected as contrary to the weight of the evidence and/or subordinate. Partially adopted in Findings of Fact 19, 20 and 21. Matters not contained therein are rejected as contrary to the weight of the evidence and/or subordinate. Adopted in substance in Findings of Fact 22 and 23. Partially adopted in Findings of Fact 24, 25, 26 and 27. Matters not contained therein are rejected as contrary to the weight of the evidence. Adopted in substance in Finding of Fact 29. Rejected as contrary to the weight of the evidence and/or a recitation of testimony.
Findings Of Fact Because of a 1984 Thanksgiving Day storm which inflicted damage in coastal areas, Barry Manson-Hing, an area engineer employed by the Department, issued emergency coastal construction permits from a temporary office in the Vero Beach Administration Building. On December 3, 1984, Respondent sought an emergency permit to allow him to place sand and sand-filled bags on his coastal property at 3755 Ocean Drive, Vero Beach, Florida. Respondent asked Mr. Manson-Hing if he could use sand from the beach to restore eroded areas. Mr. Manson-Hing said he could not, and told him that sand would have to be obtained from an upland source. Respondent replied that he had an available source of upland sand and would haul it by truck to the beach site. He also mentioned that he would remove an existing pine tree to allow vehicular access. On the next day, December 4, 1984, Mr. Manson-Hing issued an emergency coastal construction permit, #1R-127E, to Respondent. The permit allowed Respondent to place 1,500 cubic yards of sand fill material to restore eroded beach and dune areas at the site, and also permitted him to temporarily place sand-filled bags on filter cloth. In capital letters, the permit warned, "SCRAPING OF THE BEACH IS PROHIBITED." (Dept. Exhibit 4) On December 5, 1984, Lt. Raymond Barker of the Vero Beach Police Department, observed beach scraping activities being conducted on Respondent's coastal property. Respondent was present on the site. Beach sand seaward of the Coastal Construction Control Line for Indian River County had been scraped and deposited at the face of the sand dune. The removal of the sand created depressions in the beach area seaward of the Coastal Construction Control Line. Lt. Barker ordered Respondent to cease the activity until it could be determined he had the required authorization. Respondent complied with Lt. Barker's order. The scraping of the beach and removal of sand below the coastal construction control line was accomplished without a permit from the Department. On July 17, 1985, the Department entered its "Final Order" assessing Respondent a $500 fine for unauthorized coastal construction activities in violation of Section 161.054, Florida Statutes (1985). Respondent requested a hearing; resulting in this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department assess, impose, and collect an administrative fine of $500, to be paid within 30 days of final agency action. DONE AND ORDERED this 20th day of June, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. 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 the 20th day of June, 1986.
Findings Of Fact On July 24, 1986, Key Sand Associates, Ltd., by and through its agent, Eduardo Avila, made an application for a variance to the height limitation under the Code to allow a 145 foot building for 26 residential units, as described in plans submitted as part of the application. A public hearing was set before the Development Code Adjustment Board (DCAB) for August 28, 1986. There was no evidence that notice was not published in the newspaper as provided by the Code or was not mailed to the owners of the adjacent properties within 200 feet of the subject parcel as shown by the latest ad valorem tax records. On August 28, 1986, a public hearing was held before the DCAB at the time and place set forth in the notice. At the time of the hearing, minutes were kept and a tape recording was made. The tape recording and minutes of the hearing reveal that the DCAB heard the testimony of: a planning official; Eduardo Avila, representing the applicant; Y. H. Lee, architect, representing the applicant; Mr. Carl G. Myers, President of the Sand Key Property Owners Association, an opponent; Sam Dervish, representing the adjacent property owner, Dervish Bros. Gallery Restaurant, an opponent; and, Ed Armstrong, an attorney representing the interests of the developer of the adjacent property of Crescent Beach Club I, an opponent. Two letters in opposition were read into the record. At the conclusion of the public hearing before the DCAB, the DCAB found that the requirements for the variance under Section 137.012 of the Code had been met and granted the variance, as requested, by a vote of 4-1. 1/ On September 10, 1986, the appellant, Walt Buchholz, filed a notice of appeal with the City Clerk under the procedure provided in Section 137.013 of the Code. The notice of appeal alleged that Buchholz is "a resident and owner of unit 16A, 1340 Gulf Blvd., Clearwater, Florida," adjacent to the subject parcel. It further stated that the bases of the appeal were: (1) that the present owners of the adjacent property were not notified although the developer was; (2) that the applicant had misrepresented the facts at the hearing related to a representation about a blank wall on the condominium building in which Buchholz owned property; and (3) the naviety of the DCAB related to a display of model buildings by the applicant at the hearing. A hearing on the appeal was set for January 23, 1987, and appropriate notice given. The appeal hearing was continued from December 29, 1986, to January 23, 1987, on Appellant's motion to enable Buchholz to be present at the hearing on the ground: "Appellant's presence at a hearing in this case is necessary for Appellant's testimony is essential to support his position." The conduct of the appeal hearing was in accordance with Section 137.013(e) of the Code. At the appeal hearing on January 23, 1987, the hearing officer accepted the record on appeal which had been transmitted by the City Clerk to the Department of Administrative Hearings on September 19, 1986, consisting of seven items, as required by Section 137.013(e)(2)a. of the Code. The appellant did not present any witnesses nor introduce any evidence in support of the issues raised in his notice of appeal during the presentation of his case. 2/ However, the appeal hearing reflected a concession by Key Sand that Buchholz owns a condominium unit in the Crescent Beach Club, less than 200 feet from the subject property, and did not receive notice because the City Clerk sent the notice to the owner according to the latest ad valorem tax roll, the developer of the Crescent Beach Club. Appellant's counsel argued that failure to provide notice to owners of adjacent property who became owners of the property after the publication of the last ad valorem tax roll was a procedural impropriety. Appellant's counsel argued that the applicant had not presented sufficient evidence to support any of the required standards for approval of a variance at the August 28, 1986, hearing as required by Section 137.012 of the Code. Key Sand argued that Appellant was not a party in interest as required under the Code, in that, (1) there was no showing that appellant was an adversely affected person with a definite interest exceeding the general interest shared by the rest of the community and (2) being a person who owns property within 200 foot of the subject property does not by itself prove an adverse interest to his property in granting the variance. Appellant did not present even any argument during his case related to the second and third items of appeal set forth in the notice of appeal filed in this matter. Appellant did not prove that the DCAB was deceived by the passing reference to a "blank wall" during the DCAB hearing or that the DCAB naively was deceived by the models displayed at the hearing. To the contrary, the record on appeal reflects that the DCAB was not deceived by the reference to a blank wall" and that the DCAB critically weighed the display models along with all the other evidence.
Findings Of Fact Respondent Pierson is the owner of a parcel of land located at 7 Heilwood Street, Clearwater Beach, Florida. This parcel consists of the North 1/2 of Lot 2 and all of Lot 3 in Block 6, Revised Map of Clearwater Beach, according to the plat thereof as recorded in Plat Book 11, page 5, of the Public Records of Pinellas County, Florida. The westwardly portion of the parcel is beach front property on a coastal barrier island. When the subdivision known as Clearwater Beach Subdivision was platted, fifteen lots were placed in Block 6. The three beachfront lots were smaller in area than the other twelve lots which were uniform in size and shape. However, when Lot 2 was divided and the northern half went to Lot 3 and the southern half to Lot 1, fourteen similar parcels were created in Block 6. Pierson purchased the parcel in question as unimproved property in Clearwater Beach Subdivision in 1962. This was nine years prior to the creation of Coastal Construction Control Lines by the Florida Legislature. The establishment of the Coastal Construction Control Line for Clearwater Beach in 1977, caused building setbacks previously established by the City of Clearwater for this unimproved parcel to become even further restricted. The Coastal Construction Control Line deleted the seaward 5/8ths of the Pierson property on which a building could have been erected previously on Clearwater Beach. Few parcels on this island were impacted as severely as Respondent Pierson's by the creation of the Coastal Construction Control Line because most of these parcels already contained permanent improvements. This parcel remained vacant until Respondent Pierson erected a duplex in 1986. This improvement was constructed according to the Land Development Code in effect at the time with the following exceptions: A variance of zero setback from the Coastal Construction Control Line and a 6 foot height variance to permit construction of a building 31 feet in height were granted by the Board. At the time the variances were granted, Respondent had the option to build either a duplex or a triplex at the site. Respondent seeks to expand this structure and to convert it into a triplex. In order to complete the planned expansion, a variance of 18 feet was requested from the Board to allow construction 7 feet from the Heilwood Street right-of-way. Currently, the Code requires a 25 feet setback from a street right-of-way. In addition, a variance of two feet from the eastward property boundary was requested to allow construction up to 6 feet from this side property line. Code provisions require an 8 feet setback. The existing structure is 6 feet from this side property line. The proposed addition to the current structure would continue with that eastern setback of 6 feet to the north, with an additional 25 feet of structure extending towards Heilwood Street. The expansion of the building to the west would terminate at the Coastal Construction Control Line. The property is zoned RM-20 with a land use plan designation as high density residential developed. The parcel is 95.12 feet in length and 87 feet in width, an area of 8,242.38 square feet. Ordinarily, a parcel with these dimensions is of sufficient size to build the structure proposed by Respondent Pierson without violating the street right-of-way setback and the side property line setback mandated by the Code. In this case, setback variances are required to complete the triplex because of the Coastal Construction Control Line's location on the parcel. In his application for variance, together with evidence presented, Respondent Pierson contends that the variance request arises from a condition unique to the property. The "unique" condition being that he did not build what he now wants to build on the property before the land use restrictions currently in place limited development of the parcel to such an extent. All other lot owners in the locale chose to develop their lots earlier than Respondent did, under less restrictive conditions. As a result, Respondent Pierson's duplex is setback further from Heilwood Street than the other buildings. Deciding when and what to build as a real property improvement is part of real estate ownership. Now that Respondent Pierson wants to change his previous development decision to reflect his current intended property use, he wants the same setback benefits as those acquired by other property owners on Heilwood Street who developed their parcels during past time periods with less restrictive setbacks. The Coastal Construction Control Line and the building setbacks have been placed on the property because of legitimate state and local concerns. A driveway was placed by Respondent Pierson in front of the duplex as it faces the water at the end of a dead-end street. The location of this driveway and the existing setback of the duplex from the road beyond all of the other property setbacks on this street, make this portion of Respondent's property a convenient area for traveling cars to turn around or to park while using the beach. Respondent Pierson contends that the variances he has requested will discourage the use of his land as a turnaround area, because it would be clear to those attempting to use his driveway that they were trespassing. His primary interest is to maintain his private interests in the property which should go beyond those currently enjoyed by the public. It is a desire for these rights that control his request for the variances as opposed to a desire to secure a greater financial return. The variances granted by the Board will not be materially detrimental or injurious to the Vasilaros property. The variances, however, could impair the present value of the Petitioner's property because the expansion of the Pierson duplex into a triplex would block a large amount of the Gulf view the Vasilaros building was designed to acquire. Petitioners' lot is in the same subdivision as the parcel owned by Respondent Pierson. Even before the Vasilaros lot was improved, the landowners knew or should have known that another parcel separated this lot from the beach. Respondent Pierson is under no statutory or contractual obligation to restrict his land use to allow Petitioners a view. The variances granted would result in a nonconforming building. All of the other structures in the immediate vicinity are nonconforming because these structures were built before current zoning regulations were adopted. Respondent Pierson seeks to blend with the neighborhood on the street and to have the same nonconforming advantages. Respondent Pierson could convert the current structure into a triplex. The apartments would be much smaller than the ones contemplated in the proposed plan. He seeks to create the third apartment for his own retirement home. On August 22, 1991, the Board granted a variance of 15 feet to permit construction of a triplex 10 feet from a street right-of-way and a second variance of 2 feet to allow construction up to 6 feet from the side property line to the south because the Board found that the applicant has substantially met all the standards for approval, as listed in Section 137.012(d) of the Land Development Code. More specifically, the Board found: a) The variances arise from a condition which is unique to the property and not caused by the applicant; b) The Coastal Construction Control Line restricts the use of two- thirds of the property, allowing only 19 percent use, c) The particular physical surroundings, shape, or topographical conditions involved and the strict application of the provisions of this Development Code would result in unnecessary hardship upon the applicant; and d) The variances granted are the minimum necessary to overcome the hardship created by the minimal use of the property subject to the requisite building permit being obtained within six months from the date of this public hearing.
Recommendation Accordingly, it is ORDERED that the variances granted by the Board be set aside and the application for the variances submitted be denied. DONE and ENTERED this 11th day of February, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: JOHN T BLAKELY ESQ PO BOX 1368 CLEARWATER FL 34617 GEORGE W GREER ESQ 600 CLEVELAND ST - STE 685 CLEARWATER FL 34616 MILES LANCE ESQ PO BOX 4748 CLEARWATER FL 34618 CINDIE GOUDEAU/CITY CLERK CITY OF CLEARWATER PO BOX 4748 CLEARWATER FL 34618 MICHAEL WRIGHT/CITY MANAGER CITY OF CLEARWATER 112 S OSCEOLA AVE CLEARWATER FL 34618 VERONICA E. DONNELLY 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 11th day of February, 1992.
The Issue The issue is whether, pursuant to Section 161.053, Florida Statutes, and Rule 62B-33.005, Florida Administrative Code, Petitioners are entitled to a coastal construction control line permit to build a single-family residence in Volusia County with a structural elevation of 19 feet National Geodetic Vertical Datum, not 24 feet National Geodetic Vertical Datum, as required by Respondent.
Findings Of Fact Petitioners own an undeveloped lot located at 4279 South Atlantic Avenue in the Wilbur-by-the-Sea subdivision in unincorporated Volusia County. Mr. Humphries' family has owned the lot for 50 years. The rectangular lot is 210 feet deep and 50 feet wide. The narrower end abuts the Atlantic Ocean on the east and South Atlantic Avenue on the west. The south boundary of Petitioners' lot abuts a developed lot. The house located on this lot has a finished- floor elevation of 26.15 feet National Geodetic Vertical Datum (NGVD). This is consistent with the structural elevations of most of the residences in the immediate vicinity of Petitioners' lot. Even though the seaward extent of Petitioner's proposed structure is roughly in a line with the seaward extent of the nearby homes, the issue in this case is the structural elevation. The north boundary of Petitioners' lot abuts the 50- foot-wide right-of-way of Major Street. In 1984, a wooden walkway was constructed in the southern half of the Major Street right-of-way to allow pedestrians access to the beach. By that time, Major Street was no longer open for vehicular access. However, the construction and maintenance of Major Street may have contributed to the lower elevations on the north boundary of Petitioners' lot, as described below. Nearly all of the lots in the vicinity of Petitioners' lot have been developed; most, if not all, of them contain single-family residences. Petitioners, who are nearing retirement, wish to construct a house that would accommodate them in their later years when they expect their mobility to be reduced. Petitioners' house will sit atop a prominent secondary dune, as do all of the other oceanfront homes in the immediate vicinity. The house will also be confined roughly to the landward half of the lot. These factors mean that the relatively short driveway leading from South Atlantic Avenue to the garage will be relatively steep. Petitioners proposed a reduction in the top of the dune to reduce the steepness of the driveway and the difference in finished-floor elevations between the garage and the house. Generally, the south side of Petitioners' lot is higher than the north side. The seasonal high water line is 8.4 feet NGVD. The lot's east boundary, which is 7-8 feet landward of the seasonal high water line, is about 11.5 feet NGVD. The elevation of the south boundary rises to 28.5 feet NGVD, at a distance slightly east of the most seaward extent of the 10-foot wooden deck that is the most seaward structure proposed by Petitioners. The elevation of the north boundary does not rise much; over the same distance, it reaches only 12 feet NGVD. Proceeding westward, toward South Atlantic Avenue, the south boundary drops from its 28.5-foot elevation. Parallel to the proposed house, the boundary remains at about 25 feet NGVD, except it drops to about 20 feet at the point where the house would meet the garage. For the length of the 26-foot garage, the south boundary drops to 18.5 feet NGVD. For the length of the 30-foot section of driveway between the garage and the west boundary, the south boundary drops from 18 feet NGVD to 17 feet NGVD. The north boundary rises to its highest point, 20.6 feet NGVD, at a point just landward of the point along the boundary closest to the junction between the proposed wood deck and the house. Running parallel to the proposed house, the north boundary drops to about 18 feet NGVD (directly across from a point along the south boundary that reaches about 25 feet NGVD) and then to about 17.5 feet NGVD, at a point just landward of the point closest to the junction of the proposed house and garage. The proposed house would occupy elevations, prior to proposed site preparation, of about 28 feet NGVD at the seaward side, 22-26 feet NGVD at the midpoint, and no more than 21 feet NGVD at the landward side. The proposed deck, house, and all but a sliver of the garage lie seaward of the coastal construction control line. The northeast corner of the proposed house is 72 feet seaward of the coastal construction control line. The dune is largely vegetated. The vegetation includes sea oats, shrubs, and some palm trees, although Brazilian pepper, a nuisance exotic, also vegetates part of the dune. Just seaward of the southeast corner of the proposed deck is a hole, perhaps from past excavation, about ten feet deep and occupying 8-10 percent of the lot. This is the only portion of the lot significantly below-grade. Overall, the dune is functional and healthy. To the extent that it has been disturbed in the past, the dune seems to be recovering vigorously. On or about July 21, 1999, Petitioners applied for a permit to construct a residence seaward of the coastal construction control line. In their application, Petitioners proposed a structural elevation of 19 feet NGVD. The structural elevation, which is about two feet lower than the finished-floor elevation, is the lowest portion of the effectively horizontal structural elements supporting the floors and walls of the structure. Respondent's examination of the application raised concerns about the proposed structural elevation of 19 feet NGVD. The greater elevation of much of the dune under the footprint of the house would necessitate the relocation of dune materials on the lot or removal of dune materials off the lot. However, discussions between Respondent's representative and Mr. Bullard, Petitioners' engineer, failed to identify design modifications upon which both sides could agree. Thus, on June 5, 2000, Respondent issued a Final Order and Notice to Proceed Withheld (Final Order). The Final Order states that Respondent found that Petitioners' application was complete on March 6, 2000. Although the Final Order generally contemplates that construction will eventually proceed, Special Permit Condition 1 prohibits construction until Respondent issued a written notice to proceed. Special Permit Condition 2 warns that Respondent will not issue a notice to proceed until Petitioners submit plans that raise the structural elevation to 24 feet NGVD, relocate all excavated materials seaward of the coastal construction control line (but not more than 120 feet seaward of the line), prohibit net excavation seaward of the coastal construction control line, and specify the planting of all filled or disturbed areas with salt-resistant native vegetation transplanted from onsite areas that will be excavated and other sources, as needed. Special Permit Condition 7 requires Petitioners to obtain the fill material from a source landward of the coastal construction control line. The fill material also must be of a sand that is similar to that onsite in terms of grain size and coloration. However, nothing in the Final Order specifies any requirement to replicate present--or design scientifically verified new--seaward and landward slopes of the portion of the impacted dune. In resisting Respondent's demand to raise the structural elevation, Petitioners have sought to reduce the slope of their driveway, which involves traffic-safety issues in turning on and off busy South Atlantic Avenue, and eliminate the need for an extensive design modification to allow wheelchair- bound persons access to the house from the garage. At the hearing, Petitioners offered mitigation in the form of an artificial dune to be constructed seaward of the residence with excavated materials. However, this proposal would destroy existing vegetation and failed to specify slopes, so that the artificial dune would likely suffer significant and rapid erosion. Petitioners have failed to prove that their proposed construction activities, with a structural elevation of 19 feet NGVD, would not adversely impact the most prominent dune landward of the ocean, so as to reduce the existing ability of this dune to resist erosion and protect upland persons and property.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing Petitioners' challenge and issuing the Final Order and Notice to Proceed Withheld dated June 5, 2000. DONE AND ENTERED this 7th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2001. COPIES FURNISHED: David P. Struhs, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Robert R. Bullard, P.E. Qualified Representative Absolute Engineering Group Post Office Box 269 Daytona Beach, Florida 32115 Francine M. Ffolkes Senior Assistant General Counsel Timothy E. Dennis Certified Legal Intern Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Marvel O. Warren and his brother Dan own a parcel of beachfront property in Walton County, south of State Road 30A (SR30A) near Seagrove Beach. Like Mr. Warren, the other intervenors own beachfront in the area, which lies in County Commission District Five. In 1954, before the Warrens built their house landward of the dunes, no road ran toward the beach from SR30A. Construction traffic to the house site beat down a path, however. In Walton County, each county commissioner is responsible, within the district he represents, for road maintenance and, on existing county right-of- way, for construction of new roads. DNR's Exhibit No., 7; Testimony of Owens. Expenditures in excess of $500 for materials beyond what the county has stockpiled require approval by the full commission, however. Testimony of Owens. FIRST ROAD BUILT Albert Gavin of Freeport was county commissioner for District Five when, in 1958 or 1959, he caused a red clay road to be built from SR30A southerly along the eastern edge of the Warren property over sand dunes and onto the beach to within 20 or 30 feet of the water's edge. During Mr. Gavin's tenure, the county owned a borrow pit and kept no records of how much clay was placed where. (No records of the quantity of clay deposited on the beach at any time were offered in evidence at the hearing.) Fishermen used the road to launch boats into the Gulf of Mexico. Except for any portion that may have extended onto sovereignty land, the road lay on county-owned right-of-way. UPLAND SEGMENT PERMANENT The clay road landward of the sand dunes leading along the eastern edge of the Warren property to SR30A (the upland road) has been consistently maintained and in existence since it was originally built. The upland road ends at the bluff line, which is practically congruent with the coastal construction control line at that point on the coast. DNR's Exhibit No. 4; Testimony of Hill. At some time between 1960 and 1969, also landward of the subsequently established coastal construction control line, a clay parking lot was built adjacent to the upland road. BEACH SEGMENTS EVANESCENT Whenever clay has been placed on the beach, seaward of the crest of the landwardmost sand dune, the gulf has washed it away. Many clay roads at the site did not last the summer. Virtually no clay deposit has lasted longer than a full year. One attempt after another to construct a clay road seaward of the sand dunes (the beach segment) has failed. Witnesses testified that the sun bleached the red clay and that wind covered it with white sand but wave action has been the clay's principal nemesis. When Harold C. Lucas was commissioner for District Five from March, 1968, to January, 1969, no clay was deposited on the beach and there was no beach segment. Except for three months in 1975 when Van Ness R. Butler, Jr., of Grayton Beach, served as District Five's county commissioner, Conley Martin of Portland represented the district from 1969 to 1976. As county commissioners, both of these men directed clay to be placed on the beach at various times. COASTAL CONSTRUCTION CONTROL LINE ESTABLISHED A beach segment was in existence at the time the coastal construction control line was established, and recorded, on June 4, 1975, although the beach segment that then existed went straight from the foot of the sand dune toward the edge of the gulf, instead of veering east like the new; longer beach segment built last September. THEN EXISTING ROAD DESTROYED, REPLACED In September of 1975, Hurricane Eloise removed not only the beach segment of the road but much of the beach, including the dunes themselves. As road foreman for District Five at the time, Robert N. Budreau used a road grader and other equipment to fill a large hole between the Warren house and the sand dune and to cover over broken toilets and other debris with a mixture of sand and yellow clay. After the filling, a roadway was constructed with the same sand and clay mix, extending about 25 feet seaward of the dunes along a line perpendicular to the gulf shore. REPLACEMENT ROAD RECLAIMED BY ELEMENTS In 1976, Freddie M. Bishop was elected county commissioner for District Five. After the beach segment built by Mr. Budreau washed out, at least one constituent, Gene Wesley, asked Mr. Bishop to replace it, but Mr. Bishop broke with sisyphean tradition, and declined to place any clay on the beach, or otherwise attempt to reconstruct or replace the beach segment. By the time petitioner McLean succeeded Bishop as commissioner for District Five, the beach segment had been completely obliterated. The end of the upland road continued, however, to be one of some half-dozen points of access for four-wheel drive vehicles to Walton County's gulf beaches. Commissioner Bishop did cause two truckloads of oyster shells to be deposited on the "hump" of the landward sea dune, on or near the bluff line. NEW BEACH SEGMENT In response to constituents' requests, Mr. McLean ordered a new road built. He caused clay and gravel to be placed and compacted seaward of the coastal construction control line by county workmen and machinery, including some "borrowed" for the purpose from colleagues on the Walton County Commission. Built without a DNR permit in September of 1981, this new beach segment extends 180 feet seaward of the coastal construction control line and takes an unprecedented veer to the east. The only preexisting foundation for the new beach segment was the beach itself. Like Commissioner Anderson, Commissioner W. F. Miles "lent" county trucks he had charge of to respondent McLean, but Mr. Miles did not know in advance that Mr. McLean intended to use them to build a road on the beach. Commissioners Matthews, Miles, and Owens were aware of the existence of the coastal construction control line in Walton County and, in a general way, of DNR permitting requirements and procedures, including the fact that the County Commission itself acts on certain coastal construction applications. Commissioners Anderson and McLean did not testify on these matters. DNR has issued no permit for anything like the new beach segment at any time since the coastal construction control line wad established. DNR has no record of any inquiry concerning the new beach segment by or on behalf of petitioners McLean or Walton County, before the new beach segment was built. There was no showing that Mr. McLean sought legal advice before ordering construction of the new beach segment. Paragraphs 1 through 8 of DNR's "Final Order," as amended at the final hearing and set forth above, have been established by stipulation of the parties. The hearing officer has had the benefit of posthearing submissions, including proposed findings of fact, filed by all parties. Proposed findings have been adopted, in substance, where relevant, except when unsupported by appropriate evidence.
Recommendation Upon consideration of the following, it is RECOMMENDED: That DNR order petitioner Walton County to remove the new beach segment seaward of the Walton County Coastal Construction Control Line within 30 days of entry of a final order. That DNR remove the new beach segment seaward of the Walton County Coastal Construction Control Line itself, in the event of petitioner Walton County's noncompliance with the final order; and take steps to recover the cost from petitioner Walton County. That DNR impose no civil or administrative fine against petitioner W. L. "Billy" McLean. DONE AND ENTERED this 30th day of July, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982. COPIES FURNISHED: George Ralph Miller, Esquire Post Office Box 687 DeFuniak Springs, Florida 32433 W. Dennis Brannon, Esquire Post Office Box 1503 Fort Walton Beach, Florida 32549 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 M. Stephen Turner, Esquire Post Office Drawer 591 Tallahassee, Florida 32303 Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
