Findings Of Fact Respondents' File No. 76-3-V-90, is an application by J. Edwin Chancey for a variance from the coastal construction setback line in Walton County in an area referred to as Grayton Beach. The application for variance involves approximately 450-470 feet of open beach which the applicant proposes to divide into nine 50-foot wide lots upon which he proposed to construct dwelling houses. As shown by Exhibit 5 the proposed dwellings would be no less than approximately 150 feet and no more than approximately 300 feet seaward of the coastal construction setback line previously established by the Department of Natural Resources for Walton County and the subject beach area. The Department of Natural Resources' staff has recommended to the Governor and Cabinet as the Department of Natural Resources that the variance be granted subject to eight stated conditions set forth in Exhibit 2 of this proceeding. These conditions include the following: "1. No construction will be more than 150 feet gulfward of the most upland property line. All building structures will be constructed on open piling foundations with floor elevations above 14.5 feet mean sea level and pile tip penetration below 5 feet mean sea level. * * * The variance, if approved, will cover the construction of nine 50 foot lots in accordance with the subdivision plans on file in this office. . . . Construction plans on each lot will be submitted individually for staff review and if approved will be issued a variance placard for construction. The placard will be valid for construction commencing within six months and completion within 18 months. In the event septic systems are used, these systems will be installed on the landward most portion of the lots." On July 15, 1975, the Department of Natural Resources approved a variance from the coastal construction setback line requirements for a development with 30 lots proposed for the land involved in this application and an additional and contiguous 930 feet of beach. However, the developer experienced financial difficulties and as a result deeded away approximately two-thirds of the beach front property involved in that variance and abandoned the variance. The developer in that instance was J. Edwin Chancey. The land involved in this proceeding is generally open beach dunes interrupted by lakes. The engineer for the Department of Natural Resources estimated that the elevation of the subject property for which a variance is sought ranges from +3 feet mean sea level to +7 feet mean sea level except for the remnants of several large dunes which range from +10 feet mean sea level to +13 feet mean sea level. The area was somewhat higher prior to Hurricane Eloise which caused the dunes to recede on the average 55 feet and reduced 20 foot dunes to their current elevation of +10 feet to +13 feet mean sea level. Several hundred yards east of the subject property there is a large body of water known as Western Lake. Western Lake is connected directly to the Gulf by an open water course presently located 200-400 feet east of the subject property. This natural water course historically migrates to the west from its present general location in a series of migrations. As its length increases its efficiency decreases so that periodically it moves back to the east to begin again its western migration. This natural water course, in its western migration, has, in the past, encroached on the property for which a variance is herein sought. It appears that, absent an artificial barrier, this natural water course is likely in the future to migrate westward to the subject property. This water course is sometimes deep enough to accommodate an outboard boat and can be 150 feet or more wide. During Hurricane Eloise, the construction site on the property for which the variance is sought had approximately 3 feet to 4 feet of standing water. The Applicant has not provided the Department of Natural Resources with evidence of his ownership of the property for which he seeks a variance. It appears from the evidence presented that the Applicant is not the sole owner of the property, but may be a part-owner with three other persons. The Applicant has not provided the Department of Natural Resources with a duly executed statement from the owners of record consenting to the work, activity, or construction for which the variance has been requested. No statement of the specific reasons why the Applicant feels that the variance should be granted has been received by the Department of Natural Resources. There have been communications between staff members of the Department and the Applicant or his representatives, but apparently these communications dealt with the details of the requested variance rather than the reasons why the variance should be granted. The Department of Natural Resources has not received a recent topographic survey showing the plot plan of the proposed construction. The Department has received a topographic survey and a plot plan showing the position of the proposed nine lots. (See Exhibits 5 and 9) Exhibit 5, on Lots 1, 2, 6 and 8 does show what appears to be the plot plan of some structure, though apparently, the Applicant does not necessarily intend to construct dwellings in accordance with those drawings. The Department of Natural Resources has not received construction plans showing cross sections of all sub-grade construction or excavation, elevations of the lowest floor and the first dwelling floor, or the details and justification for any proposed waste water discharge unto, over, under or across the beach and/or dunes. The Applicant has verbally communicated to the Department that if septic tanks are used on the subject property they will be located as far landward as possible with no discharge toward the Gulf. No further details of this proposed wastewater discharge have been submitted to the Department. According to the engineer for the Department there will be sub- grade construction. However, the plot plan (Exhibit 5) showing the location of the proposed nine lots is apparently the only plan received by the Department with regard to this request for a variance. No evidence was presented showing that the Department has waived any of the requirements for an application for variance set out in Section 16B- 25.05, F.A.C. The engineer for the Department whose responsibility it was to initially review and make recommendations with regard to the application for variance testified that he did not believe that he had the authority to waive the above requirements and that he did not know who, if anyone, within the Department had that authority. He did not make any recommendation that the requirements be waived and did not know if the requirements had been waived. The application for variance which is the subject of this proceeding was received by the Department of Natural Resources no earlier than November, 1975, and was given the Department File No. 76-3-V-90. The application is a series of documents rather than a formal application. The Applicant had sought variances for a larger piece of property which included the subject property which variances would have allowed up to 128 dwelling units. Those requests for variances predated that which is the subject of this proceeding and were apparently given different file numbers by the Department of Natural Resources and were considered separate applications. The Petitioners, W. A. Covell and Bonnie Covell, own property in the community of Grayton Beach upon which there is a house. Their property is approximately 700 feet or more from the open beach property for which a variance is sought and does not abut the subject beach property. The Covell's think that construction of the nine dwelling units which would be allowed by the variance would lower the value of their property. Petitioners Jennings N. Byrd and Mrs. J. N. Byrd own property in the community of Grayton Beach upon which there there is a dwelling house. Their property is approximately 750 feet to 800 feet from the beach property for which a variance is sought. Mr. Byrd testified that he felt his interest in objecting to the variance was the same as that of any other Florida citizen. He further testified that he did not mind his view being obstructed by the dwelling units proposed by the Applicant. All Petitioners and their families have used the open beach area of which the property for which a variance is sought is a part, for many years as a picnic, sunning and swimming area. Petitioners G.A.P. Haynes and Betty H. Haynes own, in the name of Mrs. Haynes, property which is immediately adjacent to Applicant's property. The Haynes own a dwelling house which is located approximately 100 feet from Applicant's property. It is the opinion of the Haynes that the construction of the nine dwelling units in front of their house as proposed by the Applicant would lower the value of their property. The Haynes further indicated their concern that construction on the beach in front of them, because of the apparent inherent instability of the shifting sands, would have an adverse impact upon their house in times of high wind and water. They recounted seeing water standing, as the result of storms other than hurricanes, on Applicant's property and near their house.
The Issue The issue is whether the Department of Environmental Protection should approve Petitioner’s application for a coastal construction control line permit.
Findings Of Fact Stipulated Facts2 Petitioner, Beach Group Investments, LLC (Beach Group), is a limited liability corporation under Florida law. Its address is 14001 63rd Way North, Clearwater, Florida 33760. On December 19, 2005, Coastal Technology Corporation (Coastal Tech) on behalf of Beach Group submitted to the Department an application for a CCCL permit pursuant to Chapter 161, Florida Statutes, to construct 17 luxury townhome units in two four-story buildings, a pool, a dune walk-over, and ancillary parking and driveway areas (hereafter “the Project”). The Department designated the application as File No. SL-224. The property on which the Project is proposed (hereafter “the Property”) is located between the Department's reference monuments R-34 and R-35, in St. Lucie County. The Property’s address is 222 South Ocean Drive, Fort Pierce, Florida. The Property is located seaward of the CCCL line established in accordance with Section 161.053, Florida Statutes, and Florida Administrative Code Rule Chapter 62B-33. On April 21, 2006, the application was determined to be complete. By letter dated June 5, 2006, the Department notified Beach Group that the Project appeared to be located seaward of the 30-year erosion projection of the seasonal high water line (SHWL), and that in accordance with Section 161.053(6), Florida Statutes, the staff could not recommend approval of the Project since major structures are seaward of the estimated erosion projection. By letter dated July 7, 2006, and subsequent submittals, Beach Group requested a waiver of the 90-day time period for processing completed applications pursuant to Chapter 120, Florida Statutes, until October 31, 2006. On August 30, 2006, Beach Group submitted a certified engineering analysis of the 30-year erosion projection of the SHWL for the Department's consideration pursuant to Florida Administrative Code Rule 62B-33.024(1). Beach Group's analysis determined that the proposed major structures associated with the Project were located landward, not seaward, of the 30-year erosion projection. The Department also performed its own 30-year erosion projection of the SHWL, and determined that the proposed major structures were located seaward, not landward, of the 30-year erosion projection. The Department asserts that the proposed structures are located between 87 feet and 68 feet seaward of the Department's determination of the 30-year erosion projection. The Department disagreed with Beach Group's analysis because the analysis appeared to be inconsistent with Section 161.053(6), Florida Statutes, Florida Administrative Code Rule 62B-33.024, and the Department's own analysis. The Property is located just south of the Fort Pierce Inlet, and landward of a federally maintained beach restoration project that had approximately 14 years of life remaining under the existing Congressional authorization when the permit was submitted to the Department. By proposed Final Order dated November 1, 2006, the Department provided to Beach Group notice of its intent to deny the permit application. The proposed Final Order was received by Beach Group on November 8, 2006. Beach Group's petition for hearing was timely filed with the Department. Since the Department proposes to deny Beach Group's CCCL permit application, its substantial interests are clearly at issue, and it has standing to maintain this proceeding. On December 11, 2006, the Department issued an environmental resource permit for the Project. The Department denied Beach Group’s permit application because the Project extends seaward of the 30-year erosion projection calculated by the Department and because the Project’s impacts to the beach-dune system had not been minimized. The permit was not denied on the basis of the existence, or absence, of a line of continuous construction in the vicinity of the Project. The 30-year Erosion Projection (1) Background Fort Pierce Inlet (hereafter “the inlet”) was constructed by the Army Corps of Engineers in the 1920’s. The channel of the inlet is protected by two jetties that extend several hundred feet into the Atlantic Ocean. The jetties act as a barrier to the littoral transfer of sand from the north to south that would otherwise occur along the beach in the vicinity of the Property. The jetties cause accretion on the beach to the north of the inlet and erosion of the beach to the south of the inlet. The inlet channel beyond the jetties also restricts the littoral transfer of sand in the area. The deepening and widening of the channel in 1995 likely contributed to the increased erosion observed south of the inlet in recent years. The beach to the south of the inlet, including that portion on the Property, is designated as a “critically eroded beach” by the Department. The inlet is the primary cause of the erosion. Congress first authorized beach nourishment south of the inlet in 1965. That authorization expired in 1986. Congress “reauthorized” beach nourishment south of the inlet in 1996. That authorization expires in 2021, but St. Lucie County has requested that the authorization be extended for “another 50 years.” The first “major” beach nourishment south of the inlet occurred in 1971. Subsequent “major” nourishments occurred in 1980, 1999, 2003, 2004, and 2005. Another “major” nourishment is planned for 2007. There was a “moderate” nourishment of the beach in 1995, which included the placement of geotextile groins on the beach just to the north of the Property. “Small” nourishments occurred in 1973, 1978, 1987, 1989, 1990, 1992, 1994, 1997, and 1998. Cumulatively, the nourishments that occurred between the “major” nourishments in 1980 and 1999 involved approximately 419,000 cubic yards of sand, which is more than the volume involved in several of the “major” nourishments. Beach nourishment south of the inlet has been an ongoing effort since it started in 1971. The more persuasive evidence establishes that the nourishment project that is authorized through 2021 is a continuation of the project started in 1971 rather than a separate and distinct project. Various erosion control efforts have been used south of the inlet in conjunction with the beach nourishment efforts. For example, geotextile groins (which are essentially massive sandbags) have been installed and removed on several occasions since the mid-1990’s in order to “temporarily stabilize the shoreline until such measures could be taken to design, permit and construct a long-term solution”; concrete rubble and other riprap has been placed on the beach over the years (without a permit from the Department) to protect upland structures from erosion; and a "spur jetty" was constructed on the south jetty in an effort to reduce erosion south of the inlet. These efforts have not slowed the pace of the erosion or minimized the need for beach nourishment south of the inlet. Indeed, the need for and frequency of “major” nourishments south of the inlet have increased in recent years. Beach erosion south of the inlet will continue to be a serious problem so long as the inlet exists and the jetties remain in place. There is no reason to expect that the inlet or the jetties will be removed in the foreseeable future and, as a result, beach nourishment south of the inlet will continue to be necessary. The Department has recognized the need for continuing nourishment of the beach south of the inlet, as reflected in both the Strategic Beach Management Plan for the St. Lucie Beaches and the Ft. Pierce Inlet Management Study Implementation Plan. Those plans acknowledge the long-term need for continued nourishment of the beach at a rate of at least “130,000 cubic yards on an average annual basis.” The plans do not, however, guarantee that future beach nourishment in the area will occur at that, or any, rate. (2) Rule Methodology Florida Administrative Code Rule 62B-33.024 contains the methodology for determining the 30-year erosion projection, which is the projected location of the SHWL 30 years after the date of the permit application under review. Where, as here, the beach at issue is subject to an ongoing beach nourishment project, the methodology requires consideration of “pre-project” conditions -- i.e., the conditions that existed before the beach nourishment efforts started -- because those conditions are used to project how the beach will migrate landward in the periods over the next 30 years when there may not be any beach nourishment activity. The coastal engineering experts presented by the parties -- Michael Walther for Beach Group and Emmett Foster for the Department -- used essentially the same methodology to determine the location of the 30-year erosion projection. However, the variables that they used in each step of the methodology differed. Step 1: Locate the Pre-Project MHWL The first step in determining the 30-year erosion projection is to locate the pre-project MHWL. If a pre-project erosion control line (ECL)3 has been established in the area, it is to be used as the starting-point for the determination of the 30-year erosion projection. Otherwise a pre-project survey of the MHWL is to be used as the starting-point. Mr. Walther used a 1997 ECL as the starting point for his analysis. Mr. Foster used a March 2002 survey of the MHWL as the starting point for his analysis because he did not consider the 1997 ECL to be an appropriate pre-project ECL. The March 2002 survey of the MHWL is not itself an appropriate starting point for the analysis. The survey is not a “pre-project” survey, no matter how the project is defined; the survey occurred more than 30 years after the nourishments started in 1971, and three years after the first “major” nourishment pursuant to the Congressional reauthorization of the project. Moreover, as discussed below, there is an appropriate pre-project ECL in the area. There are two lines that might be considered to be a pre-project ECL in this case -- (1) the ECL established in 1997, and (2) the South Beach High Tide Line (SBHTL) established in 1968. The 1997 ECL was established based upon a survey of the MHWL performed on May 5, 1997. The survey occurred two years after a “moderate” beach nourishment and the placement of the geotextile groins on the beach. There was also a “small” nourishment in 1997, but the record does not reflect whether that nourishment occurred before or after the survey. The SBHTL was established based upon a survey of the MHWL between 1966 and 1968, prior to the initial nourishment of the beach south of the inlet. It is approximately 65 feet landward of the 1997 ECL. The SBHTL is the functional equivalent of an ECL, and it roughly corresponds to the “best fit line” for the March 2002 survey used by Mr. Foster as the starting point for his determination of the 30-year erosion projection in this case. The Department contends that the 1997 ECL is not based upon a “pre-project” survey of the MHWL because the applicable beach restoration project south of the inlet began in the 1970’s and has been ongoing since that time. Beach Group contends that the applicable project is the current one that is authorized through 2021, and that the 1997 survey preceded the start of the nourishments authorized by that project. The Department has used the 1997 ECL as the starting- point for determining the 30-year erosion projection in several prior permits in the vicinity of the Project,4 and in an April 9, 1999, memorandum discussing the 30-year erosion projection in the vicinity of monuments R-35 and R-36, Mr. Foster stated that “the ECL represents the pre-project [MHWL].” Mr. Foster no longer considers the 1997 ECL to be the appropriate pre-project MHWL for purposes of determining the 30- year erosion projection south of the inlet. He testified that had he been aware of “the complete background” of the 1997 ECL and the extent of the nourishments in the 1980’s and 1990’s, he would have brought the issue to the Department’s attention so that the Department could consider whether the 1997 ECL or “an earlier prenourishment line” was the appropriate pre-project MHWL. Although it is a close question, the more persuasive evidence presented at the final hearing establishes that the 1997 ECL is not an appropriate pre-project MHWL because the applicable “project” includes the beach nourishment efforts started in 1971 that have continued through the present, even though those efforts were intermittent at times. Thus, the appropriate starting point for determining the location of the 30-year erosion projection is the SBHTL, not the 1997 ECL used by Mr. Walther or the March 2002 MHWL survey used by Mr. Foster. Step 2: Locate the Pre-Project SHWL The second step in determining the 30-year erosion projection is to determine the location of the pre-project SHWL. Mr. Walther located the pre-project SHWL 26.4 feet landward of the 1997 ECL. That is the surveyed distance between the MHWL and SHWL in June 2005. Mr. Foster located the pre-project SHWL at the most landward location that the SHWL was surveyed in March 2002. The line is between 50 and 75 feet5 landward of the “best fine” line used by Mr. Foster as the pre-project MHWL, and it is as much as 25 feet landward of the surveyed location of the SHWL in some areas. Mr. Foster used “an average [of] 50 feet” as the MHWL- to-SHWL distance in his analysis of several prior permits in the vicinity of the Project.6 Mr. Foster testified that the distance between the MHWL and SHWL in this area varies “from the 20s in the immediate post-nourishment situations . . . all the way up to 70-some feet” and that the “the averages gravitate towards 40 feet.” Consistent with that testimony, the distance between the surveyed locations of the MHWL and SHWL depicted on Department Exhibit 6 is approximately 40 feet, on average. The MHWL-to-SHWL distance calculated by Mr. Walther is not a reasonable projection of the pre-project distance because it was based upon survey data taken immediately after a “major” beach nourishment when the shoreline was unnaturally steep and, hence, not representative of “pre-project” conditions. The SHWL located by Mr. Foster is also not a reasonable projection of the pre-project SHWL because it was based upon a March 2002 survey (which is clearly not "pre- project"); because it used the most landward surveyed location of the SHWL rather than a “best fit” line or an average of the distances between the surveyed MHWL and SHWL; and because it runs across areas of well-established dune vegetation. In sum, the MHWL-to-SHWL distance calculated by Mr. Walther (26.4 feet) is too low, whereas the distance resulting from Mr. Foster's siting of the SHWL based on the March 2002 survey (50 to 75 feet) is too high. Those distances are essentially endpoints of the range observed in this area, as described by Mr. Foster. A more reasonable estimate of the pre-project MHWL-to- SHWL distance is approximately 40 feet. See Findings 51 and 52. Thus, the pre-project SHWL is located 40 feet landward of and parallel to the SBHTL. That line is not depicted on any of the exhibits, but on Petitioner’s Exhibit 37, it roughly corresponds to a straight line between the points where the red- dashed line intersects the Property’s north and south boundaries. Step 3: Calculate the Erosion Rate The third step in determining the 30-year erosion projection is to calculate an erosion rate. The erosion rate used by Mr. Foster was -7 feet per year (ft/yr). That rate was calculated based upon an average of the shoreline change data for monument R-35 for the period from 1949 to 1967. The rate would have been higher had Mr. Foster averaged the rates for the nearby monuments.7 The erosion rate used by Mr. Walther was -4.9 ft/yr. That rate was calculated based upon an average of the shoreline change data for monuments R-34 to R-39 over the period of 1930 to 1968. An erosion rate of -7 ft/yr south of the inlet was referenced in permit applications submitted by Mr. Walter’s firm, Coastal Tech, for several shore protection structures south of the inlet; was used by Mr. Foster in his review of several prior CCCL permit applications south of the inlet; and was included in reports on the inlet prepared by the Army Corps of Engineers over the years. An erosion rate of -3.3 ft/yr was used and accepted by the Department in its review of another permit application in the general vicinity of the project.8 That erosion rate was based upon data from the period of 1972 to 1994, which is after the beach nourishment started south of the inlet. It is not entirely clear why Mr. Foster chose to use a data set starting in 1949, particularly since his report stated that the “1928-30 survey already shows significant erosion occurring south of the inlet.” His testimony did not adequately explain the choice of that data set. The use of a longer data set is typically more appropriate when calculating a historical rate. In this case, however, the use of the shorter period of 1949-68 is reasonable because the 1930-49 erosion rate was considerably lower than the 1949-68 rate,9 which has the effect of skewing the erosion rate calculated for the longer period of 1930-68. The higher erosion rate calculated by Mr. Foster also better takes into account the increased frequency of the nourishments in recent years as well as the continued need for shore stabilization in the area. In sum, the higher erosion rate of -7 ft/yr calculated by Mr. Foster using the 1949-68 data set better reflects the historical post-inlet, pre-nourishment erosion rate than does the lower erosion rate calculated by Mr. Walther. Step 4: Determine the Remaining Project Life The fourth step in determining the 30-year erosion projection is to determine the “remaining project life” of the “existing” beach nourishment project. It was stipulated that there are 14 years remaining until the currently authorized federal beach restoration project expires. It is reasonable to expect that beach nourishment south of the inlet will continue well beyond the expiration of the current federal project, but there were no other funded and permitted projects in place at the time Beach Group’s permit application was filed. Potential future beach nourishment projects are not considered “existing” under the rule methodology in Florida Administrative Code Rule 62B-33.024 unless they are funded and permitted at the time the application at issue is filed. Mr. Walther used the 14-year remaining life of the existing federal project in his calculation of the 30-year erosion projection, as did Mr. Foster. The “remaining project life” applicable to this case is 14 years, notwithstanding the likelihood of continued beach nourishment in the area beyond the expiration of the existing project. Step 5: Calculate the 30-year Erosion Projection The final step in determining the location of the 30- year erosion projection is a calculation using the variables determined in the previous steps. The calculation is as follows: first, the remaining project life determined in step four is subtracted from 30; then, that result is multiplied by the erosion rate determined in step three to get a distance; and, finally, the SHWL is moved that distance landward of its pre-project location determined in step two. Subtracting the remaining project of 14 years from 30 equals 16 years. Multiplying 16 years by the erosion rate of -7 ft/yr equals 112 feet, which means that the 30-year erosion line is located 112 feet landward of the pre-project SHWL (or 152 feet landward of the SBHTL). That line is not depicted on any of the exhibits, but it roughly corresponds to a straight line than runs across the Property parallel to the SBHTL just landward of the “conc. pad” and “existing conc. Pile caps (typ)” shown on Petitioner’s Exhibit 37. The line is 25 to 30 feet seaward of Mr. Foster’s 30-year erosion projection depicted on that exhibit. (3) Ultimate Finding Regarding the Location of the Proposed Structures in Relation to the 30-year Erosion Projection The Project includes major structures seaward of the 30-year erosion projection, as determined above. Impacts of the Project on the Beach-Dune System The Project includes 17 luxury town home units in two four-story buildings, a pool and spa, landscaping, and an elevated dune walkover. The units will range from 2,700 to 4,400 square feet of living space and are projected to be offered for sale in the $1.5 to $2.5 million range. Beach Group’s principal, Harold Seltzer, testified that the Project is sited as far landward as possible to allow for the development of all 17 units while still complying with the local setback and height restrictions; that the Project’s financial viability depends upon it being developed as proposed; and that the Project cannot be redesigned and remain financially viable. The CCCL permit application included a letter from the City of Ft. Pierce confirming that the Project is consistent with the applicable local development codes. Mr. Seltzer testified that the Project’s local development approvals expired in September 2006 because the CCCL permit had not been issued, and that Beach Group is having to go back through the local permitting process. The seaward extent of the Project is the 1978 CCCL, which is approximately 250 feet seaward of the current CCCL. The buildings on the adjacent properties are also located on the 1978 CCCL. The Project does not extend further seaward than the nearby development, including the structures authorized by the Department in File Nos. SL-162 and SL-173.10 The seaward boundary of the Property is the SBHTL. That line is approximately 295 feet landward of the MHWL established in June 2005, and as noted above, it is approximately 65 feet landward of the ECL established in 1997. The adjacent properties are developed with multi-story residential buildings. There is a densely vegetated dune feature in front of the building to the south of the Property. There is some vegetation, but no discernable dune in front of the building to the north of the Property. The Property as a whole is sparsely vegetated, but there are areas of “prolific vegetation” on the Property. The seaward extent of the vegetation on the Property roughly corresponds to the location of the 1978 CCCL. There are several mature sea grape clusters in the vicinity of that line. The beach in front of the Property is devoid of vegetation. It has a steep slope immediately landward of the water line; a wide (approximately 270 feet) expanse of relatively flat beach; and a gently sloping dune feature that starts just landward of the Property’s seaward boundary, crests approximately 30 feet farther landward, and then gradually slopes downward across the Property all of the way to State Road A1A. The dune feature on the Property is the frontal dune. It is the first mound sand located landward of the beach that has sufficient vegetation, height, continuity, and configuration to offer protective value. The crest of the frontal dune is seaward of the vegetation line on the Property, and ranges in height from +9.7 to +12.2 feet NAVD.11 The seaward toe of the dune is shown on the topographic survey for the Property at elevations ranging from +7.27 to +7.85 feet NAVD. Similar elevations occur on the landward side of the dune crest, just landward of the 1978 CCCL. The vegetation on the Property extends landward of the 1978 CCCL and landward of the line shown on the topographic survey of the Property as the “approximate location of sparse grass and ground cover.” The landward extent of the vegetation does not in and of itself define the landward extent of the dune; changes in the slope of the ground must also be considered. The more persuasive evidence establishes that the landward toe of the frontal dune is landward of the 1978 CCCL, but not as far landward as suggested by Department witness Tony McNeal.12 The landward toe of the dune on the Property is best defined by the elevations landward of the dune crest similar to the elevations shown for the seaward toe of the dune. The Project extends into the frontal dune on the Property, and it will requires minor excavation of the frontal dune, primarily in the area of the proposed pool. All aspects of the project, except for the proposed dune walkover, will be landward of the crest of the frontal dune and the mature sea grape clusters located on the dune. There will be no net excavation on the Property as a result of the Project. The sand excavated for the pool will be placed on-site, and additional beach-compatible sand will be used as fill for the site. Overall, the Project will result in the net placement of approximately 66 cubic yards of sand on the Property. The proposed structures will be elevated on piles, which will allow the beach-dune system to fluctuate under the structures during storm events. The finished floor elevation of the proposed structures is approximately +8 feet NAVD, which is slightly higher than the elevations associated with the toes of the frontal dune. The Project will not destabilize the frontal dune, even though it will encroach into the dune. The impacts of the Project on the beach-dune system will be mitigated by the placement of additional sand into the beach-dune system, as described above. The Project’s impacts will be further mitigated by the enhancements to the frontal dune described in the permit application. Mr. Walther testified that the frontal dune on the Property could “very easily” be enhanced to be of comparable height and magnitude of the dunes on the adjacent properties. The permit application proposes enhancements to the frontal dune as part of the Site Landscaping Plan for the Project. The proposed enhancements include increasing the crest of the dune to a height of +15 feet NAVD, and extensive planting of the dune with sea grapes, beach morning glories, and sea oats. The plantings would extend from the 1978 CCCL to the seaward toe of the existing frontal dune. The dune enhancements proposed in the permit application should be included as a specific condition of the CCCL permit for the Project, if it is approved.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order denying Beach Group’s application for a CCCL permit. DONE AND ENTERED this 19th day of April, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of April, 2007.
The Issue The issue for determination at the final hearing was whether the Petitioner Blaha possessed the requisite standing to maintain this action and if so, whether the Applicant Aquarina Developments, Inc., established by a preponderance of the evidence entitlement to a permit from the Coastal Construction Control Line ("CCCL") which would authorize construction of the following: (1) twelve above-ground balconies extending five feet over the CCCL; (2) two roof overhangs extending approximately one foot over the CCCL; (3) two dune walkovers and four decks providing elevated beach access; and (4) a temporary fence extending no more than five feet beyond the CCCL. At the final hearing, the Respondent Aquarina Developments, Inc., (hereafter "Aquarina" or "Applicant") offered Respondent's Exhibits 1-16, which were admitted into evidence. Edward Fleis, Howard J. Teas, Bert Leltz and Ross Witham testified on behalf of the Respondents. Peter Pritchard, Rob Lee and Georges Blaha testified for the Petitioner. Additionally, public comment was taken as provided at Section 120.57(1)(b)(4), Florida Statutes. A Proposed Recommended Order has been submitted by the Respondent Aquarina Developments, Inc. To the extent that the proposed findings submitted by Respondent are not reflected in this Order, they are rejected as unsupported by the weight of credible evidence or as being immaterial to the results reached.
Findings Of Fact By application No. 775-020.61 filed on July 1, 1981, Respondent Aquarina requested a coastal construction permit for construction of portions of twelve cantilevered balconies, two roof overhang sections, a temporary construction fence, four elevated wooden decks, and two dune crossovers, all seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida. The purpose of the proposed structures is to enhance utilization of the beach by residents of Aquarina's PUD located between the Atlantic Ocean and Mullet Creek, a tributary of the Indian River in South Brevard County, while at the same time inhibiting the deleterious effects of unrestrained pedestrian and vehicular access across the beach dune on the property. Respondent Aquarina's project is located on the barrier islands separated from the mainland by the Indian River, thirteen miles south of Melbourne and five miles north of Indian River County. Aquarina proposes to develop a condominium community approved as a PUD by Brevard County, with a projected population of 3,400 persons including 1,600 residential units, a commercial area, and 500 hotel rooms. The project includes at least two condo- mini urn buildings located entirely landward of the CCCL except for the following specific portions: Twelve cantilevered balconies ex- tending approximately five feet beyond the CCCL but not touching the ground; Two roof overhang sections extending approximately one foot beyond the CCCL; Two beach-dune walkover structures to be constructed a maximum of seventy- five feet seaward of the CCCL, which are to provide controlled beach access; Four elevated wooden observation decks constituting integral parts of the walkover structures; A temporary construction fence extending no more than five feet beyond the CCCL. On or about November 20, 1981, the Department indicated its intent to recommend to the Executive Director the issuance of the Applicant's coastal construction permit. After the granting of a requested extension of time, Petitioner Blaha filed objections and a Petition for the Initiation of Formal Proceedings under Section 120.57, Florida Statutes. The Petition raised three issues: Whether construction of the proposed minor structures seaward of the CCCT would harm sea turtles inhabiting the area at issue; Whether a new CCCL should have been set based on changing conditions in the area; Whether the additional shading caused by the proposed structures would harm the dune vegetation system. At the beginning of the hearing, the Hearing Officer heard argument and received evidence on the issues raised by the Motions to Dismiss filed by the Department and the Applicant. The Respondent's Motions raised three issues: Whether the Petitioner had standing to initiate this cause; Whether the alleged impact that the Applicant's proposed coastal construction would have on sea turtles lies within the jurisdiction of the Department and the Hearing Officer under Chapter 161 of the Florida Statutes; and Whether the exact configuration of the CCCL is a proper subject for consi- deration at a hearing challenging the proposed issuance of a coastal construction permit. Petitioner Blaha admitted that he did not live on the beach at issue and in fact lived on the west side of State Road A1A, three miles to the north of the Applicant's proposed project. The Petitioner stated that he was the Director of the Space Coast Branch of Friends of Animals, an environmental organization concerned about wildlife, although not representing the organization in this proceeding, and that he had a general interest in protecting the beach from erosion, a problem affecting everyone on the barrier island. In response to the argument that Petitioner Blaha had no special interest differing in kind from the interests of the general public, the Petitioner alleged that he runs on the beach and observes the sea turtles, arguing that this evinces a more than average interest in protecting the beach and its wildlife. The Hearing Officer also heard argument on whether the Department has jurisdiction to consider potential impacts on the nesting habitats of sea turtles from proposed coastal construction, under Chapter 161, Florida Statutes. Petitioner Blaha urged that although Section 161.053, Florida Statutes and the rules promulgated thereunder do not address sea turtles and their protection, the statute should be so interpreted. The Department responded that any jurisdiction it may have over sea turtles would be reposited in its Marine Resource Division, not in the permitting procedures for a coastal construction permit. In addition, federal laws protect endangered sea turtles, and the federal government has primary jurisdiction over the regulation of the nesting habitats of such sea turtles. Similarly, the Applicant and the Department pointed out that the Petitioner's criticism of the placement of the present CCCL falls outside the scope of a hearing on the issuance of a coastal construction permit, since Section 120.54, Florida Statutes provides for rulemaking proceedings for those attempting to change a rule established CCCL and Rule 16B-33.10, Florida Administrative Code, contains provisions for CCCL revisions or modifications on application of a riparian owner of property at or on the CCCL. Petitioner Blaha is not a riparian property owner and this was not a proceeding under Section 120.54, Florida Statutes. Respondent Aquarina established that it had taken and would continue to take all reasonable actions necessary to ensure the protection of sea turtles that inhabit the site through public relations campaigns and public advertisements to educate the public and especially the residents of the PUD and through architectural design efforts and dareful construction practices that will limit the impact of the proposed development on sea turtles and their nesting habitats. Moreover, to the extent that the development might have an impact on sea turtles, the source of the impact would not primarily be the structures at issue in these proceedings, but the buildings, parking lots, and other human habitation lying landward of the CCCL. The proposed temporary construction fence to be placed five feet beyond the CCCL will help conserve the dunes by limiting the potential impact of construction, and the Respondent Aquarina has agreed to restore that affected area to its natural state upon the completion of construction. Most importantly, the proposed dune crossovers will protect the dunes from the destruction that is occurring in the dunes to the north of the project and on the project site itself because of unrestrained pedestrian and vehicular traffic over and/or through the dunes and the accompanying destruction of dune vegetation in those areas. The dune crossovers are wooden walkways on raised pilings designed to have as little contact with the dunes as possible, with railings to restrain pedestrians from straying away from this direct access from the condominiums to the beach. The crossovers will make it unnecessary and undesirable for residents and visitors to create alternative foot paths through the heavy dune vegetation to the beach. Coupled with the educational program already being implemented by Aquarina, the dune crossovers should help to conserve the dunes. The Respondent Aquarina established that the incremental shading caused by the proposed roof overhangs extending about one foot beyond the CCCL and the cantilevered balconies extending approximately five feet beyond the CCCL would not significantly add to the shading from the buildings themselves, which lie entirely landward of the CCCL. The evidence showed that even the impact of the shading from the landward buildings would have no significant impact on the dune vegetation system or increase the rate of erosion or deterioration of the dune. See Rule 16B-33.02(23)(b), Florida Administrative Code. The additional impact from the minor structures for which the Respondent Aquarina seeks its permit should be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Department of Natural Resources, through its Executive Director, grant the requested construction control permit to the Applicant Aquarina Developments, Inc., subject to the conditions stated in the proposed permit (No. BE-80), the draft of which was attached to the Department's letter of November 20, 1981, notifying Petitioner Blaha of the Department's intent to issue the requested permit. DONE and ORDERED this 25th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1982. COPIES FURNISHED: Georges Blaha 280 Flamingo Drive Melbourne Beach, Florida 32951 Deborah A. Getzoff, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Clifford A. Schulman, Esquire GREENBERG TRAURIG ASKEW HOFFMAN LIPOFF QUENTEL & WOLFF, P.A. 1401 Brickell Avenue Miami, Florida 33131 Henry Dean, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Executive Director Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303
The Issue The central issue in this case is whether the Department of Environmental Protection (Department) should approve a permit for the applicant, Indian River County (County), to install a prefabricated erosion prevention reef (PEP reef) off the coast of Vero Beach, Florida.
Findings Of Fact The Department is the state agency charged with the responsibility of reviewing and approving permits such as the one at issue. The County is a governmental entity and is the applicant which has requested a permit for an experimental project to be located in Vero Beach, Florida. The Petitioners oppose the proposed project. The project at issue is the installation of a PEP reef system to be located between approximately 300 feet south of reference monument R-80 to approximately 300 feet south of reference monument R-83, in Indian River County, Florida. Because of the uncertainty as to the performance of the proposed project and the potential that it may cause adverse impacts to the coastal system, the Department classified the project as experimental pursuant to Chapter 89-175, Section 27, Laws of Florida. In making its preliminary approval for the permit, the Department required special permit conditions to safeguard the coastal system and marine turtles. Additionally, the Department specified both preconstruction and post installation monitoring and testing. The term of the permit is limited to five years, including three years to monitor the project's impacts. A PEP reef is a prefabricated erosion prevention product installed as a breakwater off the shore. In this case, the product measures approximately twelve feet long and six feet high. The base of the product (which is conically shaped) is approximately 15 feet tapering to a one foot crest at the top. The PEP unit is a proprietary product of a company called American Coastal Engineering (ACE). The County proposes to contract with ACE for the manufacture and installation of the units. It is proposed that the PEP units would be installed in an alignment parallel to the beach for a total, though not continuous, length of 3000 feet. The proposed location for the PEP reef in Vero Beach is in an erosion area as identified by the Department's Beach Restoration Management Plan. Historically, the subject beach has experienced a steady and continuous erosion which has been exacerbated during storm conditions. The proposed site is suitable for the experimental nature of this project. At least one past storm event caused substantial damage to the beach front at the project site. Walkways, utilities, and other public improvements were substantially damaged. Past efforts to curb the erosion have proved unsuccessful. Such efforts included beach renourishment, and the installation of seawalls or bulkheads. Future beach renourishment is undesirable for the project site due to the lack of compatible sand, and its high cost. More important, however, are concerns over the negative environmental impacts to nearshore reefs which could result from a large scale renourishment project. For over ten years the County has sought a solution to the erosion that has plagued the project site. To that end, the County established a special committee, the Beach and Shore Preservation Advisory Committee, to review options available and to recommend long-term solutions to the County. In June, 1993, the County contracted with Petitioner Walther to prepare a map of the nearshore hardbottom reef and to evaluate alternatives for beach restoration at the project site. Such work was completed, and recommendations from Mr. Walther were not incompatible with the installation of the proposed reef. The proposed installation should not adversely affect the hardbottom reefs which are in the vicinity of the PEP units. Such hardbottom is considered environmentally sensitive; however, no PEP unit will be placed on the hardbottom or so close to it that it will disturb the organisms located within the hardbottom community. In December, 1993, the County submitted an application for an experimental coastal construction permit to install the PEP reef which is at issue. The PEP units are to be placed in seven to ten feet of water. The PEP reef is designed to reduce wave heights, particularly during a storm event, which should reduce the wave energy and currents in the lee of the structure. While it is hoped the units will deter erosion, they may also cause some accretion to the beach. Whether such accretion would be temporary or long- term is uncertain. As a result of studies performed by the University of Florida under the direction of Dr. Dean, and supported by the County's coastal engineer Mr. Donaldson, it was determined that the PEP units should be installed in shorter lengths (than originally designed) with gaps between each segment. Consequently, the installation proposed by the County is not continuous but is staggered and gapped. The installation proposed by the County is unique in that the coastal characteristics of the area and the proposed design should produce results different from past installations of reef structures in Palm Beach County, Florida. As a result, studies performed by Dr. Dean in connection with a reef installed in Palm Beach County have been discounted as dissimilar to the one proposed in this case. In reviewing the subject permit application, the Department requested additional data which the County retained Dr. Zarillo to gather. Dr. Zarillo performed numerical modeling for the proposed reef system. Based upon Dr. Zarillo's work it is expected that the PEP reef system will have a positive benefit in that wave height and energy is likely to be reduced by the installation of the units. The site for the installation is suited for the proposal and is not within an area that is considered environmentally sensitive. Moreover, the PEP reef itself will add to the development of species since it should develop into a nursery habitat for young fish and other marine organisms. The installation of PEP reefs at other locations have proven to be both successful and unsuccessful. Having considered the studies performed by Dr. Bruno, an expert in coastal engineering and in measuring/modeling coastal processes, it is likely that the proposed project will be similar enough in design to installations reviewed by Dr. Bruno to allow the proposed project to be compared. Dr. Bruno has monitored three installations at three different sites in New Jersey. Each site had different results based upon conditions of each location. One site, expected to be most like the proposed site in Vero Beach, has experienced a reduced rate of erosion. Based upon Dr. Bruno's "real life" experience it is expected that the proposed installation will result in a reduction of wave height on the order of 10 percent to 20 percent. Consequently, the proposed installation should provide a benefit to the control of erosion. The reduction of wave height leads to a reduction in the erosive power of the wave field. Therefore, it is expected to result in a reduced erosion rate behind the PEP reefs. Additionally, Dr. Bruno's assessment of Dr. Zarillo's modeling work suggests that "in theory" the proposed site should experience a reduction in wave height as a result of the proposed installation. As a result, both scientific methods support the proposed project. No scientific study can, however, assure the success of this project. In fact, success may be derived from the value of the data which will be gathered during the monitoring period. Such data may assist in the future design of structures to reduce wave energy. The County's proposed monitoring plan contains detailed and adequate performance criteria to assure that the PEP reef system will be fully evaluated. The County has provided adequate assurance that it will comply with the permit conditions, including the modification or removal of the reef system if directed by the Department. All installation and monitoring as well as removal is to be performed at the County's expense. The PEP reef system will have no appreciable adverse impact on marine turtles. Construction is prohibited during nesting season under the terms of the permit. The PEP reef system will have no adverse impact on swimmers or boaters. The units are to be clearly marked and identified under the terms of the permit. No adverse impacts to Petitioners Walther and Clemens should be incurred as a result of the installation of the proposed project.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection enter a final order approving the permit requested by the County. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 16th day of February 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4045 Rulings on the proposed findings of fact submitted by the Petitioner Walther: 1. Paragraphs 1, 3, 4, 6, 7, 8, 9, 10, 12, 13, 16, 17, 26, 29, 42, 44, 47, 50, 51, 59, and 60 are accepted. With regard to paragraph 2, the allegation is hearsay as it relates to the record cited; however, although not stipulated, the record most likely supports the paragraph in substance. Paragraph 5 is rejected as irrelevant. There is no evidence to support the factual conclusion that because another permit holder has failed to remove a reef that the County will similarly default on its obligation to do should the agency order the PEP reef removal. Paragraph 11 is rejected as irrelevant. Paragraph 14 is rejected as irrelevant if it purports to suggest the contracting was improper; this proceeding does not consider the propriety of the contracting process. With the deletion of any emphasis and the last sentence which are rejected as argument, paragraph 15 is accepted. Paragraphs 18 through 24 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 25 is rejected as hearsay; it is accepted that Mrs. Clemens opposed the permit and requested a hearing. Paragraph 27 is rejected as an incomplete statement and therefore not supported by the total weight of credible evidence. Paragraph 28 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 30 through 33 are rejected as law not statements of fact. Paragraph 34 is accepted in general terms but not as to the specific measurements cited. Paragraphs 35 through 38 are rejected as contrary to the weight of all credible evidence. It is determined that the site is suitable for a non-biased, comprehensive analysis of the project. Paragraphs 39 through 41 are rejected as contrary to the weight of all credible evidence. Paragraph 43 is rejected as irrelevant. With regard to paragraph 45, it is accepted the reefs may settle but such is expected to be unlikely to impair the overall performance of the structure; therefore, the paragraph, as drafted, must be rejected as contrary to the weight of all credible evidence. Paragraph 46 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 48 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 49 is rejected as unclear or incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraph 52 is rejected as irrelevant. Paragraph 53 is rejected as incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraphs 54 through 58 are rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 61, it is accepted that Dr. Dean envisioned a current being created that would run parallel to the shoreline as a result of the reef installation but otherwise rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 62, such statement is generally true; however, Dr. Dean did not conduct any sediment transportation test to verify that the structure in an open setting (as opposed to the experimental tank) would transport sediment as inferred. Paragraphs 63 through 67 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 68 is accepted as accurate but the agency did not express, and the record does not establish, that there is a concern that the County may not honor its agreement to remove the PEP reef if directed to do so. Paragraph 69 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner Clemens: 1. None submitted. Rulings on the proposed findings of fact submitted by the Respondent Department: All proposed findings of fact adopted by the Department as listed are accepted. See comments below as to rulings on the proposed findings of fact submitted by the County. Rulings on the proposed findings of fact submitted by the Respondent County: 1. Paragraphs 1 through 5, 7 through 15, 17, 20, 21, 23, 24, 26, 27 through 30, 34, 40, 41, 42, 43, 45, and 46 are accepted. With regard to paragraph 6, it is accepted that an extensive renourishment program might damage the sensitive nearshore hardbottom community; otherwise rejected as irrelevant. With regard to paragraph 16, with the deletion of the word "significantly" in the second sentence and the last sentence which are rejected as irrelevant, editorial comment, argument or not supported by the total weight of credible evidence, it is accepted. With regard to paragraph 18, the first sentence is accepted. As to the balance of the paragraph, with the deletion of the word "significantly" and the substitution of "might" for "could", the paragraph is accepted. Otherwise rejected as an inaccurate characterization of the weight of the record. With regard to paragraph 19, the first sentence is accepted. The remainder of the paragraph is rejected as irrelevant. Paragraph 22 is rejected as a compound statement of proposed fact some of which are accurate but which taken in whole constitute argument, unnecessary, irrelevant or not supported by the weight of the credible evidence. Paragraph 25 is rejected as unnecessary or irrelevant. With regard to paragraph 31, with the deletion of the word "significant" in sentence three, the paragraph is accepted. With regard to paragraph 32, with the deletion of the word "significant" in sentence two, the paragraph is accepted. Paragraph 33 is rejected as repetitive, unnecessary or irrelevant. With regard to paragraph 35, the first sentence is accepted. The remainder of the paragraph is rejected as unnecessary, comment, argument, or irrelevant. Paragraphs 36 through 38 are rejected as unnecessary, comment, argument, or irrelevant. The proposed PEP reef should not adversely impact the Vero Beach shoreline. Paragraph 44 is rejected as unnecessary, comment, argument, or irrelevant. With regard to paragraphs 47 through 53, it is accepted that the Petitioners did not establish that they will be substantially affected by the proposed project; however, their conduct does not rise to the level to establish participation in the administrative process was for an improper purpose. Consequently, the paragraphs are rejected as argument, irrelevant or contrary to the weight of the credible evidence. COPIES FURNISHED: Steve Lewis, Esquire John W. Forehand, Esquire LEWIS, LONGMAN & WALKER, P.A. 215 S. Monroe Street, Suite 702 Post Office Box 10788 Tallahassee, Florida 32302 Kevin S. Hennessy, Esquire LEWIS, LONGMAN & WALKER, P.A. 2000 Palm Beach Lakes Boulevard Suite 900 West Palm Beach, Florida 33409 Michael P. Walther 1725 36th Avenue Vero Beach, Florida 32960 Adele Clemens 3747 Ocean Drive Vero Beach, Florida 32963 Thomas I. Mayton, Jr. Dana M. Wiehle Assistants General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherall Secretary Department of Environmental Regulation Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Regulation 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether the Department of Environmental Protection should issue a permit to the Browns authorizing construction on their property, which is seaward of the coastal construction control line.
Findings Of Fact Property Descriptions (1) The Browns’ Property The Browns own Lots 5, 6, 7, 15, and 16 of a platted subdivision known as the First Addition of Anna Maria Beach Subdivision, Block 35 (the Subdivision). The Subdivision is on Anna Maria Island in the City of Anna Maria, which is in Manatee County. All of the Browns’ lots are seaward of the CCCL established by the Department for Manatee County. The parties stipulated that the construction authorized by the permit at issue in this proceeding is landward of the 30- year erosion line. Indeed, according to the analysis of the permit application prepared by the Department’s staff, the 30- year erosion line is approximately 111 feet seaward of the proposed construction. See Browns’ Exhibit 6, at 3. Lot 5 is the most landward lot owned by the Browns. Lot 6 is adjacent to and seaward of Lot 5, and Lot 7 is adjacent to and seaward of Lot 6. Lots 15 and 16 are seaward of Lot 7, and they are separated from Lot 7 by a 10-foot wide “vacated alley.” The Subdivision was platted in 1912. The plat of the Subdivision, Exhibit P6, shows the seaward edge of Lots 15 and 16 bordering on a road named Gulf Boulevard, which appears to be some distance inland from the Gulf of Mexico.2 Gulf Boulevard no longer exists, and all of Lots 7, 15, and 16 are now located on the sandy beach between Lot 6 and the Gulf of Mexico. The seaward edge of Lot 6 is approximately 176 feet landward of the mean high water line (MHWL) of the Gulf of Mexico. See Exhibit P5B. There are no structures or improvements located on Lots 7, 15, or 16. There are also no structures or improvements located on Lots 8, 9, and 10, which are to the north of Lots 7, 6, and 5, respectively. See Exhibit P4. Lot 10 was the subject of a CCCL permit application denied by the Department in 2000 based upon the Recommended Order issued in DOAH Case No. 99-3613, which is referred to by the parties as “the Negele case.” See Exhibit P30. There is an 850-square-foot single-family residence on Lots 5 and 6 that was constructed in the 1920’s and is used by the Browns as a vacation home. The property’s address is 104 Pine Avenue. All of the enclosed living area of the residence is on Lot 5. A wooden deck attached to the residence extends approximately 17 feet onto Lot 6, and at its most seaward point, the deck is 262.41 feet seaward of the CCCL. See Browns’ Exhibit 9. There are no structures on Lot 6 other than the wooden deck. More than half of Lot 5 has been previously disturbed. In addition to the Browns’ residence, there is a small wood “tool shed” located on that lot. The disturbed areas on Lot 5 between the residence and the shed and between the shed and Pine Avenue (see Exhibit P5C, areas marked with a yellow “1” and “2”) are used by the Browns for, among other things, parking and storage of boats. Those areas have very little vegetative cover. The northwest portion of Lot 5 is undisturbed and, as more fully discussed below, that area is densely vegetated with sea oats, sea grapes, and century plants. (2) Schrutt’s Property Schrutt owns Lot 4 of the Subdivision, which is adjacent to and immediately landward of the Browns’ Lot 5. The property’s address is 108 Pine Avenue. There is a two-story single-family residence on Lot 4 that Schrutt uses as a vacation home. Schrutt’s vacation home extends farther to the northwest than does the residence on the Browns’ lot. As a result, Schrutt currently has an unimpeded view of the Gulf of Mexico over the Browns' shed and across the undisturbed portion of the Browns’ lot from her second-floor deck. See Exhibits P2F and P5A. (3) The Youngs’ Property The Youngs own Lot 3 of the Subdivision, which is adjacent to and immediately landward of Schrutt’s lot and approximately 50 feet landward of the Browns’ Lot 5. The property’s address is 110 Pine Avenue. There is a three-story single-family residence on Lot 3 that the Youngs use as a vacation home. The Young’s vacation home is set farther back from Pine Avenue than are the residences on the Browns’ lot and Scrutt’s lot. As a result, the Youngs currently have an unimpeded view of the Gulf of Mexico across Schrutt’s lot and the undisturbed portion of the Browns’ lot (as well as across Lot 10) from their second- and third-floor decks. See Exhibits P2F and P5A. The Proposed Project and its Permitting History On March 30, 2004, the Browns submitted to the Department an application for a CCCL permit to allow them to construct an addition to their existing residence on Lots 5 and 6 (“the Project” or “the proposed construction”). The Project will include the renovation of the existing residence, additional residential space in an elevated structure on a pile foundation that will be connected to the existing residence, an elevated swimming pool and deck on a pile foundation, and a driveway made of pavers. There will be a concrete slab under a portion of the new elevated structure in the vicinity of the existing shed that will be enclosed and used as a two-car garage. See Browns’ Exhibit 14, sheet 9; Transcript, Volume 2, at 163-64. The finished floor elevation of the garage slab will be 7.0 feet above sea level/NGVD,3 which is slightly lower than the 8.4-foot finished floor elevation of the Browns’ existing residence. The elevated portions of the proposed construction will be 19.2 feet above sea level/NGVD, with a finished floor elevation between 20.2 and 20.7 feet. The “footprint” of the proposed construction is predominately on Lot 5, but it does extend 10 to 15 feet onto Lot 6. See Exhibit P5B, blue cross-hatched area. The seaward extent of the Project is in alignment with the existing residence and deck on the Browns’ property. After completion of the Project, the Browns’ vacation home will include approximately 2,500 square feet of enclosed space. The Browns’ permit application did not mention Schrutt, whose lot is adjacent to the lots on which the Project will be located, even though the application form requires the applicant to list “[t]he name and mailing address of the owners of the immediately adjacent properties . . . .” The reason for this omission is not entirely clear. The permit application included a letter from Kevin Donohue, Building Official, on the letterhead of the City of Anna Maria, which states that “[a] review of the proposed activity described in the seventeen-page plan package for an addition and alternation to an existing single family dwelling does not contravene the City of Anna Maria Code of Ordinances, Comprehensive Plan, and the Florida State Building Code.” The “seventeen-page plan package” referenced in Mr. Donohue’s letter is the same set of plans that the Browns submitted to the Department with their application. Those plans were received into evidence as the Browns’ Exhibit 14. The parties stipulated that the City of Anna Maria building and zoning codes require structures to be set back at least 10 feet from the property line. The site plan for the Project shows the new elevated portion of the Browns’ residence exactly 10 feet from Schrutt’s Lot 4, and exactly 10 feet from the “alley” that runs between Lot 5 and Lot 10 to the north.4 Mr. Brown testified that the City prohibits on-street parking on Pine Avenue, which explains (at least in part) why the Project includes driveway pavers and a concrete slab/enclosed garage under a portion of the new elevated structure for parking. There have been no material modifications to the Project since the date of Mr. Donohue’s letter and, as discussed below, no material modifications will be necessary for the Project to satisfy the special permit conditions imposed by the Department. Thus, it is appropriate for the Department to continue to rely on the letter as proof that the Project does not contravene the applicable local codes. The survey submitted with the Browns’ permit application was dated September 4, 2002, which is approximately 18 months before the date of the application. The survey identified a “vegetation line” along the seaward edge of Lot 6 behind an area designated as “rocks,” and its also included the notation “sea oat existing” in the area between the vegetation line/rocks and the Browns' existing home as well as in the area of the Project. Neither the survey, nor any other information provided to the Department with the permit application showed the extent of the vegetation and dune features in the area of the Project with the same level of detail as is shown on Exhibits P5A, P5B and P5C and the Browns’ Exhibits 30A and 30B. By letter dated April 21, 2004, the Department requested additional information about the project, including a “topographic survey drawing of the subject property . . . from field survey work performed not more than six months prior to the date of the application.” By letters dated May 3, 12, and 13, 2004, the Browns provided additional information about the Project pursuant to the Department’s request. They did not provide a more current survey than the September 2002 survey included with the application, although they did provide a signed and sealed copy of the 2002 survey. Notwithstanding the Browns failure to provide a more current survey, the Department apparently considered the Browns’ application to be complete because on July 29, 2004, the Department advised the Browns that their CCCL permit application for the Project was approved. The Browns’ failure to comply with the technical submittal requirements relating to the survey is not material as a result of the more current and more detailed survey information presented at the final hearing. The Department’s approval of the Browns’ permit application was subject to the general permit conditions in Florida Administrative Code Rule 62B-33.0155, as well as a number of special permit conditions, including: No work shall be conducted under this permit until the permittee has received a written notice to proceed from the Department. Prior to issuance of the Notice to Proceed, the permittee shall submit two copies of revised site plan depicting the swimming pool and deck extending a maximum distance of 265 feet seaward of the coastal construction control line. (Italics in original). * * * All vegetation located seaward of the coastal construction control line shall be preserved except for that disturbance which is necessary for dwelling construction. Prior to completion of construction activities authorized by this permit, the permittee shall plant a mix of a minimum of three native salt-tolerant species within any disturbed areas seaward of the authorized structures. Plantings shall consist of salt-tolerant species indigenous to the native plant communities existing on or near the site or with out native species approved by the Department . . . . As permitted, the various components of the Project are to be located as follows: the new elevated portion of the residence, a maximum of 259.4 feet seaward of the CCCL; the addition to the existing residence, a maximum of 249.4 feet seaward of the CCCL; and the elevated swimming pool and deck, a maximum of 265 feet seaward of the CCCL. On August 16, 2004, the Browns provided a revised site plan to the Department in purported compliance with special permit condition No. 2. The revised site plan was received into evidence as the Browns’ Exhibit 9. The revised site plan does not comply with special permit condition No. 2. It continues to show the pool and deck extending 268.41 feet seaward of the CCCL and it also shows a “pool security fence” extending 272.41 feet seaward of the CCCL. By letter dated August 25, 2004, the Department advised the Browns that the distances shown on the revised site plan were not consistent with the special permit conditions, and directed the Browns to “fulfill the conditions as per the approved [permit].” The location of the Project shown on the revised site plan (Browns’ Exhibit 9) is identical to the location of the Project on the original site plan (Browns’ Exhibit 14, sheet 3). The only difference between the two site plans is that the revised site plan includes two measurements not included on the original site plan showing the seaward corners of the new elevated deck 258.41 feet and 268.41 feet seaward of the CCCL. In order to comply with special permit condition No. 2, the plans will have to be revised to eliminate those portions of the Project that extend more than 265 feet seaward of the CCCL. The Project cannot be shifted farther landward because it already abuts the 10-foot setback line. The necessary revisions to the plans can be done without shifting the Project landward by eliminating a relatively small area of the deck and portions of the pool security fence. The Browns’ ability to satisfy the Department's special permit conditions by making minor modifications to the Project and not encroaching into the 10-foot setback distinguishes this case from the Negele case.5 Dunes, Generally A dune is a mound of sand lying upland of the beach that has been deposited by natural or artificial means and that is subject to fluctuations in configuration and location. It is not necessary for a mound of sand to be covered with vegetation to be considered a dune. However, vegetation promotes the growth of dunes and helps to stabilize dunes by trapping wind-blown sand. The expert testimony in this case (e.g., Transcript, Volume 1, at 147-48, and Volume 3, at 26-28) identified three different types of dunes -- significant, primary, and frontal -- and described each type consistent with the statutory and rule definitions quoted below. A “significant dune” is a dune that has “sufficient height and configuration or vegetation to offer protective value.” Fla. Admin. Code R. 62B-33.002(17)(a) (emphasis supplied). A “primary dune” is a significant dune that has “sufficient alongnshore continuity to offer protective value to upland property.” Fla. Admin. Code R. 62B-33.002(17)(b). A “frontal dune” is the “first [dune] which is located landward of the beach and which has sufficient vegetation, height, continuity, and configuration to offer protective value.” § 161.053(6)(a)1., Fla. Stat. (2004) (emphasis supplied).6 Thus, a primary dune need not have vegetation so long as it has sufficient height, configuration, and continuity to offer protective value, but a frontal dune must have vegetation in addition to height, configuration, and continuity that offers protective value. The Browns’ contention to the contrary (e.g., Browns’ PRO, at 18) is rejected based upon the unambiguous statutory and rule language. Dunes in Southwest Florida are generally lower in height than are dunes in other parts of the state. However, the dunes on Anna Maria Island, including the dunes on and in the vicinity of the Browns’ property, are substantial for Southwest Florida. The Beach-Dune System on and in the Vicinity of the Browns’ Property The beach on and in the vicinity of the Browns’ property has been relatively stable over at least the past several decades. In recent years, the stability of the beach is due in part to several beach nourishment projects undertaken by Manatee County pursuant to a shore protection plan authorized by the federal government in 1975 for Anna Maria Island. The most recent project, completed in 2002, included the beach on the Browns’ property and advanced the MHWL approximately 200 feet seaward. The shore protection plan is scheduled to continue through 2025, which will help to ensure the continued stability of the beach on and in the vicinity of the Browns’ property. It is undisputed that a primary dune runs across the Browns’ property. The parties disagree, however, as to whether that dune is also the frontal dune. The location of the primary dune on the Browns’ property is best shown on Exhibit P5B by the highlighted yellow lines. The seaward toe of the dune is in the vicinity of the six-foot contour line on Lot 6, and the landward toe of the dune is in the vicinity of the six-foot contour line on Lot 5. The dune is several hundred feet in length. It continues to the north of the Browns’ property onto Lot 10, and it continues to the south of the Browns’ property seaward of Pine Avenue. See Exhibit P5C and the Browns’ Exhibit 30B. The dune runs in a more northwesterly direction than does the shoreline. As a result, the portion of the dune that is seaward of Pine Avenue (to the south of the Browns’ property) is further seaward than the portion of the dune on the Browns property, which in turn, is further seaward of that portion of the dune on Lot 10. Id. The width of the dune varies. In the area of the proposed construction on the Browns’ property, the dune is 20 to 45 feet wide. The dune’s highest point on the Browns’ property is 7.8 feet. Its highest point on Lot 10 is 8.3 feet, and its highest point in the area seaward of Pine Avenue is 9.4 feet. The dune is vegetated with sea oats, sea grapes, and century plants, all of which are native salt-tolerant species. The vegetation on that portion of the dune on the Lots 5 and 6 is dense and mature. It is undisputed that the dune, in its current state, offers some protective value to upland properties, including the Petitioners’ properties. The evidence does not quantify the extent of the protection currently provided by the dune or the degree to which that protection will be diminished after the Project is constructed on the dune. Neither Petitioners’ expert coastal geologist nor the Browns’ expert coastal engineer did any modeling regarding the level of storm (e.g., 5-year, 10-year, etc.) that the dune provides protection against. The experts agreed, however, that the dune would likely not provide any significant protection against a 25-year or 50-year storm, which would have storm surges that exceed the height of the dune. There are dune features on the Browns’ property seaward of the primary dune described above. Those features, which were characterized as "incipient dunes" by Petitioners' expert coastal geologist, are delineated with red shading on the Browns’ Exhibit 30B and can be seen in several of the photographs received into evidence (e.g., Exhibits P2C and P2L, and Browns’ Exhibit 17L). Those dune features do not qualify as frontal dunes because they are sparsely vegetated (if at all), small in height (generally six inches or less), lack continuity, and offer no real protective value. Because the primary dune described above is the most seaward dune on the Browns’ property that has sufficient vegetation, height, continuity, and configuration to provide protective value, it is the frontal dune.7 Assessment of the Project’s Impacts An applicant for a CCCL must demonstrate that the impacts of the project have been minimized and that the project will not destabilize a primary or frontal dune or cause a “significant adverse impact,” as that phrase is defined in Florida Administrative Code Rule 62B-33.002(31)(b). The proposed construction at issue in this proceeding will be located on the frontal dune and will result in the removal of all of the existing vegetation on that dune within the “footprint” of the new structure. The evidence was not persuasive that the removal of that vegetation, although extensive, will destabilize the dune or result in a “significant adverse impact” to the beach-dune system due to increased erosion by wind or water. Indeed, there will still be dense vegetation seaward of and to the north and south of the new structure, and any vegetation outside of the “footprint” of the Project that is impacted by construction must be mitigated in accordance with the special permit conditions quoted above. The Project, as permitted, will not interfere with the beach-dune system’s recovery from coastal storms or cause the dune to become unstable or suffer a catastrophic failure such that its protective value to upland properties is significantly lowered. Indeed, there was no credible evidence that the Browns’ existing on-grade residence, which has existed since the 1920's on the same dune that the proposed structure will be located, has adversely impacted the recovery of the beach-dune system or the dune’s protective value. It is not necessary to evaluate the cumulative impacts of the Project because there was no evidence of any similar projects in the vicinity of the Browns’ property that have been permitted or for which a permit application is pending. Indeed, the only credible evidence related to this issue involved the Department’s denial of a permit for construction on the adjacent Lot 10, which generates no cumulative impact concerns and does not establish “precedent” in this case because the Department evaluates each CCCL permit application on its own merits. The Project, as permitted, will not result in a net removal of in situ sandy soils from the beach-dune system. The 33 cubic yards of soil that will be excavated for the Project will be spread on the Browns’ seaward lots and, therefore, will remain in the impacted beach-dune system. The Project will be elevated above the projected 100- year storm surge height and will meet applicable building code requirements. As a result, structure-induced scour will be minimized and will not cause any significant adverse impacts to the beach-dune system or the upland properties. The Project will be constructed in accordance with the Florida Building Code, which will minimize the potential for wind and waterborne missiles. The depth of the swimming pool is limited to 4.5 feet and its bottom elevation will be 3.8 feet above sea level/NGVD, which will minimize the amount of excavation necessary for the pool. The permit requires the excavated material to be placed “[i]n and around the proposed swimming pool area,” so there will be no net loss of material from the immediate area of the pool. Even though the proposed construction will be located on the frontal dune (rather than a sufficient distance landward of it), the Project will not have a significant adverse impact on the stability of the beach-dune system or preclude natural shoreline fluctuations. Indeed, the fact that the Browns’ existing residence has apparently not adversely impacted the stability of the beach-dune system or natural shoreline fluctuations over the past 80 years undermines Petitioners’ contentions regarding the potential adverse impacts of the proposed structures. The line of continuous construction identified by the Department during its review of the Browns’ permit application was 244 feet seaward of the CCCL, which is consistent with the findings in the Negele case. See Exhibit P30, at 14. The line of continuous construction is not a line of prohibition, but rather it is only a factor that must be considered in conjunction with all of the other permitting criteria in the statutes and the Department’s rules. There is evidence indicating that the line of continuous construction is more than 244 feet seaward of the CCCL. For example, the aerial photograph received into evidence as the Browns’ Exhibit 18A shows that the existing structures on the adjacent properties (particularly those to the south of Pine Avenue and those to the north of Elm Avenue8) are farther seaward than the Browns’ residence, which itself is more than 244 seaward of the CCCL. Consistent with the aerial photograph, the Browns’ Exhibit 30A depicts what is referred to as the “existing line of construction established by major structures in the area” seaward of the Browns’ deck, which as note above, is approximately 262 feet seaward of the CCCL. The Project, as permitted, extends to a maximum of 265 feet seaward of the CCCL and, as reflected on Exhibit P5B, a majority of the proposed construction is seaward of the 244-foot line. However, the Project (as proposed and as permitted) is landward of the line depicted on the Browns’ Exhibit 30A. The location of the proposed construction is not contrary to the Department’s rules even if the 244-foot line identified by the Department is correct because the Project is in alignment with the Browns’ existing residence and because there was no credible evidence that the existing residence has been unduly affected by erosion. The native salt-tolerant vegetation (e.g., sea oats, sea grapes, and century plants) impacted by the Project are dense and mature, and the degree of disturbance is significant. However, as noted above, there will still be dense vegetation seaward of and to the north and south of the proposed construction that will not be impacted and that will continue to provide protective value for the dune system and upland properties. Florida Administrative Code Rule 62B-33.005(11) requires disturbances to the existing native salt-tolerant plant communities to be “limited.” That rule also requires construction to be located “where possible” in previously disturbed areas. Locating the Project in the previously disturbed areas of Lot 5 rather than on the frontal dune would not increase adverse impact to the beach-dune system and, indeed, may reduce the impact by limiting disturbances to the existing native salt- tolerant plant communities. However, the Project could not be relocated into the disturbed areas because those areas are considerably smaller than the “footprint” of the proposed construction, particularly when the set-backs required by the local code and the on-street parking restrictions are taken into account. In sum, the preponderance of the evidence establishes that despite the its location on a portion of the densely vegetated frontal dune, the Project satisfies the permitting criteria in the Department’s rules and will not result in “significant adverse impacts” to the beach-dune system or upland properties. In making the foregoing findings, the undersigned did not overlook the contrary opinions of Petitioners’ expert coastal geologist. However, the undersigned found his testimony regarding the impact of the Project on the beach-dune system to be less persuasive the testimony of the Browns’ expert coastal engineer on that issue. Other Considerations The Project will not interfere with the public's lateral beach access, nor will it interfere with public access to the beach from Pine Avenue. The parties stipulated that the Project does not raise any concerns relating to sea turtles. The Project will effectively block Schrutt’s view of the Gulf of Mexico from her vacation home, and it will impair the Youngs’ view of the Gulf of Mexico from their vacation home.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order approving the Browns’ permit application subject to the general and special permit conditions referenced in the Department’s July 29, 2004, letter and permit. DONE AND ENTERED this 15th day of August, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 15th day of August, 2005.
Findings Of Fact Petitioner, Wingfield Development Company (WDC), is a real estate development company located at 390 North Orange Avenue, Suite 1800, Orlando, Florida. In late 1982 or early 1983, WDC began developing a resort project known as Turtleback Beach Club (the project) in Indian River County. When completed, the project will consist of a 256 unit hotel, 68 villas, two swimming pools, a number of cabanas, a reverse-osmosis water plant, and other amenities which will cost approximately $50 million. All structures were designed to be constructed landward of the then existing coastal construction control line (CCCL). The date of establishment of the original CCCL is not of record. From late 1982 or early 1983 until 1987, WDC expended approximately $1.4 million on the project. Among the expenditures were the preparation of extensive cite and design plans, the installation of off-site utilities, and the fabrication and installation of some two hundred pilings and a number of pile caps. All such work was performed landward of the then existing CCCL. On March 5, 1987 respondent, Department of Natural Resources (DNR), reestablished the CCCL in Indian, River County. The new CCCL was more landward than the original CCCL. This resulted in several portions of the project, including all or parts of the villa and hotel, being seaward of the new CCCL. In November 1987 WDC was advised by the Indian River County Building Department to cease construction activities because, after consultation with DNR, it has decided not to make any further inspections. On April 4, 1988 DNR advised WDC by letter that, after making a site review of the project, it had determined that: the foundations for the hotel structure and the cabana located in the southeast portion of the property were `under construction' pursuant to the definition contained in Subsection 16B-33.002(56), Florida Administrative Code, at the time of the reestablishment of the coastal construction control line on March 4, 1987, ... (and that) the remaining five proposed cabana structures located on the south half of the property and shown to be seaward of the new control line, the proposed swimming pools, decks and gazebos, parking areas also shown to be seaward of the new control line and any other proposed landscaping work were not `under construction' pursuant to the definition. The letter added that the: staff shall consider the exemption status for the hotel and the one cabana under construction void if construction activity on these structures remains idle for a period of six months from the date of receipt of this exemption determination and prior to completion of the structures. Finally, the letter required petitioner to submit: a proposed `build out' schedule (that) would entail providing (the) staff with specifics of where (petitioner) expect(s) the overall project to be at ninety (90) day intervals up through completion of the structures located seaward of the coastal construction line. The staff feels that two years should be more than ample time with which to complete that portion of the project located seaward of the coastal construction control line. Progress must be maintained on each structure during each six month interval. Additionally, should your project fall short of any ninety day progress levels to be referenced in your `build out' plan, your project will lose it's (sic) exemption status and all remaining portions of the project, seaward of the control line will require a permit from the (DNR) in accordance with the provisions of Section 161.053, Florida Statutes. Because the letter offered a point of entry to contest the proposed agency action, WDC requested a section 120.57(1) hearing. At the same time, it continued construction on the project. On November 25, 1988 DNR issued further proposed agency action in the form of a letter advising WDC that, based upon a review of WDC's exemption file, the exempt status of the project had been "lost" and that any further construction activity seaward of the CCCL would require a permit from DNR under section 161.053. The receipt of this advice prompted WDC to file a second request for a section 120.57(1) hearing and a petition seeking to invalidate what it perceived to be an illicit rule, or in the alternative, the two rules from which the statements were drawn. WDC contends that DNR's requirement that, once a project is given an exempt status, it must remain under active construction and the owner must submit for DNR's approval a "build out" schedule, is an illicit rule since such a requirement is not contained in DNR's rules. Under state law, as implemented by DNR, no construction activity may take place seaward of a CCCL without a permit from DNR. However, any projects that are under construction at the time of the establishment of the CCCL are exempt from such permitting requirements. Under the current DNR organizational structure, the Division of Beaches and Shores (Division) is charged with the responsibility of administering and enforcing the CCCL regulatory program. The Division's Bureau of Coastal Engineering and Regulation has been assigned the task of performing a site review of all projects for which local building permits have been issued at the time of the establishment of a CCCL. If a project is under construction, as defined in DNR rules, at the time of the establishment of the CCCL, the owner may continue his activities even if the structures are seaward of the CCCL. A determination as to whether a structure is under construction at the time a CCCL is reset does not take into consideration the impacts the structure will have on the beach and dune system. This is because DNR considers such a determination to be regulatory in nature, and such impacts would be irrevelant to that decision. The Division construes its authority as also permitting it to require an exempt project to remain under active construction once it receives an exempt status. It does so on the notion that this insures that the exemption status was obtained in good faith, and the builder intended to go forward with the construction in a timely manner and as originally conceived. It has been DNR's experience that some property owners have engaged in a minimal construction program to circumvent the regulatory process. To prevent this, DNR has imposed a requirement that, if construction activity ceases for a period of six months or more, the exempt status will be lost. A six month time period was used because DNR realized that short, unforeseeable delays of less than six months were not uncommon. This policy has been uniformly applied, without discretion to agency personnel to do otherwise, on all projects classified as exempt. In addition, DNR has required project owners to submit to DNR staff a so-called "build out" schedule containing a construction schedule at ninety day time intervals with a time certain for completion of the project. This requirement, although infrequently used, has been uniformly imposed, when needed, upon all exempt projects, including that of WDC. The agency concedes that there is no specific statutory language authorizing the above requirements. However, it takes the position that these requirements are authorized and sanctioned by chapter 161 as a whole and by rules 16B-33.002(56) and 16B-004(1), which happen to be the rules challenged by WDC. Those rules read as follows: 16B-33.002 Definitions. (56) "Under construction" is the continuous physical activity of placing the foundation or continuation of construction above the foundation of any structure seaward of the established coastal construction or setback line. Under construction does not include application for or obtaining a building permit, a site plan approval or zoning approval from the appropriate local government agency having jurisdiction over the activity, purchasing construction materials, placing such construction materials on the site, clearing or grading the site in anticipation of construction, site surveying, continuation of site work beyond the limits of the foundation including landscape work or construction of nonhabitable major structures or rigid coastal or shore protection structures, or reactivating construction after substantially all construction activity has remained stopped for a period of six months or more. 16B-33.004 Exemptions from Permit Requirements. (1) Any structures under construction prior to the establishment of a coastal construction control line in a particular county are exempt from the provisions of Section 160.053, Florida Statutes, and this Chapter, except as noted in Subsection 161.053(12), Florida Statutes. Respondent acknowledges that there is nothing in rule 16B-33.004(1) that specifically authorizes it to impose the challenged requirements. However, it relies upon that part of the rule which reads "except as noted in Subsection 161.053(12), Florida Statutes" as implicitly authorizing this action. That statute removes the exempt status of a project if there are any subsequent modifications which "require, involve, ,or include any additions to, or repair or modification of the existing foundation of that structure." According to the Division director, it construes that language as authorizing it to make a determination as to whether the project owner has made any substantial changes in the nature of the project or if construction has been continuous. Respondent also relies upon rule 16B-33.002(56) which defines the term "under construction" as being "the continuous physical activity of placing the foundation or contination of construction above the foundation of any structure seaward of the established coastal construction control or setback line." The Division interprets this language to mean that construction must be continuous and without a cessation of activities of more than six months. This rule language is bottomed on subsection 161.053(9) which reads in pertinent part that "the provisions of this section do not apply to ... structures existing or under construction prior to the establishment of a coastal construction control line as provided herein; provided such structures may not be materially altered except as provided in subsection (5)." Finally, the agency relies upon subsection 161.053(1)(a) which sets forth the legislative intent behind the establishment of CCCLs. Among other things, the purpose of a CCCL is to protect, the beaches and dunes from imprudent construction which can "provide inadequate protection to upland structures." In the words ,of the Division director, DNR interprets this language to mean that it has the authority to "go back and look at projects once they are declared exempt, and to make sure that they remain exempt under the statute." The DNR documents which grant exemptions do not contain any reference to requirements that there be continuous construction on the project and that a build out schedule be submitted thereafter. Even so, DNR contends it is merely granting a "conditional" exemption conditioned on the project owner maintaining active and continuous construction. It posits further that, without such authority, its regulatory program would be rendered ineffective. However, the Division director conceded that, even without the imposition of these requirements, DNR still has authority to regulate all structures which are constructed seaward of the CCCL and to prohibit any material changes to an existing or partially completed structure. Petitioner intends to complete its project, but contends it cannot do so at the pace required in DNR's build out schedule. Also, WDC points out that it is unable to secure permanent financing for the project since lender's are uncertain if DNR will approve the build out schedule and allow construction to go forward or instead precipitously halt the construction. There have been no construction activities on the project since November 1988.
The Issue Whether Petitioners' application for a permit to construct a dwelling in Walton County, Florida, should be approved, pursuant to Chapter 161, Florida Statutes. In January of 1984, Respondent Department of Natural Resources provisionally denied Petitioners' application for a permit pursuant to Chapter 161, Florida Statutes, to construct a dwelling on their property in Walton County seaward of the existing coastal construction control line. Petitioners requested a hearing pursuant to Section 120.57(1), alleging that the denial of their application was unlawful on constitutional grounds and that it exceeded Respondent's discretionary powers under Chapter 161. The request for hearing was referred by Respondent to the Division of Administrative Hearings, Case No. 84-0508. Thereafter, Respondent's motion to strike those aspects of the petition alleging the unconstitutionality of the proposed denial was denied on the basis that Petitioners properly may preserve such matters for any appellate review. Thereafter, Petitioners sought to amend their petition to allege the invalidity of certain of Respondent's rules and, although such petition was granted, Petitioners were informed that any administrative determination of the invalidity of rules must be made the subject of a separate petition filed with the Director of the Division of Administrative Hearings. On June 11, 1984, Petitioners filed a petition with the Division challenging the validity of certain of Respondent's rules which were cited by Respondent as the basis for the proposed denial of Petitioners' application for a permit. The petition alleged that said rules were not appropriate to the ends specified in Section 161.053, Florida Statutes, that the effect of the rules was to establish a class of property owners who could be excluded from receiving permits to construct dwellings seaward of the coastal construction control line merely because their lots or parcels of land are larger than their neighbors or other adjacent owners, and that such rules are arbitrary and capricious as they relate to the petitioners because other property owners in Walton County had been permitted by Respondent to construct dwellings similar to hat proposed by the Petitioners beyond the coastal construction control line. DOAH Case No. 84-0508 and the case involving the rule challenge, DOAH Case No. 84-2053R, were consolidated for purposes of hearing. At the hearing, Petitioners presented the testimony of Brett Moore, a coastal engineer employed by the DNR Division of Beaches and Shores, Dennis Evans, an architect, and Petitioner Edward S. Coley. Petitioner submitted ten exhibits in evidence Respondent presented the testimony of Brett Moore, Deborah Flack, Director of the Division of Beaches and Shores, and Ralph Clark, Chief of the Bureau of Coastal Engineering and Regulation. Respondent submitted 21 exhibits in evidence. Posthearing submissions submitted by the parties in the form of Proposed Recommended Orders have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact In 1981 Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley, Petitioners' Exhibit 1, Respondent's Exhibit 1). At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20). On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984, that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area. . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised Petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16). The height of the dune line on Petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under dead covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to come extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8). Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21). Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10). Although conflicting evidence was received as to whether or not the existing structures east of petitioners' lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioners' Exhibit 1). Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2). The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4).
Findings Of Fact Marvel O. Warren and his brother Dan own a parcel of beachfront property in Walton County, south of State Road 30A (SR30A) near Seagrove Beach. Like Mr. Warren, the other intervenors own beachfront in the area, which lies in County Commission District Five. In 1954, before the Warrens built their house landward of the dunes, no road ran toward the beach from SR30A. Construction traffic to the house site beat down a path, however. In Walton County, each county commissioner is responsible, within the district he represents, for road maintenance and, on existing county right-of- way, for construction of new roads. DNR's Exhibit No., 7; Testimony of Owens. Expenditures in excess of $500 for materials beyond what the county has stockpiled require approval by the full commission, however. Testimony of Owens. FIRST ROAD BUILT Albert Gavin of Freeport was county commissioner for District Five when, in 1958 or 1959, he caused a red clay road to be built from SR30A southerly along the eastern edge of the Warren property over sand dunes and onto the beach to within 20 or 30 feet of the water's edge. During Mr. Gavin's tenure, the county owned a borrow pit and kept no records of how much clay was placed where. (No records of the quantity of clay deposited on the beach at any time were offered in evidence at the hearing.) Fishermen used the road to launch boats into the Gulf of Mexico. Except for any portion that may have extended onto sovereignty land, the road lay on county-owned right-of-way. UPLAND SEGMENT PERMANENT The clay road landward of the sand dunes leading along the eastern edge of the Warren property to SR30A (the upland road) has been consistently maintained and in existence since it was originally built. The upland road ends at the bluff line, which is practically congruent with the coastal construction control line at that point on the coast. DNR's Exhibit No. 4; Testimony of Hill. At some time between 1960 and 1969, also landward of the subsequently established coastal construction control line, a clay parking lot was built adjacent to the upland road. BEACH SEGMENTS EVANESCENT Whenever clay has been placed on the beach, seaward of the crest of the landwardmost sand dune, the gulf has washed it away. Many clay roads at the site did not last the summer. Virtually no clay deposit has lasted longer than a full year. One attempt after another to construct a clay road seaward of the sand dunes (the beach segment) has failed. Witnesses testified that the sun bleached the red clay and that wind covered it with white sand but wave action has been the clay's principal nemesis. When Harold C. Lucas was commissioner for District Five from March, 1968, to January, 1969, no clay was deposited on the beach and there was no beach segment. Except for three months in 1975 when Van Ness R. Butler, Jr., of Grayton Beach, served as District Five's county commissioner, Conley Martin of Portland represented the district from 1969 to 1976. As county commissioners, both of these men directed clay to be placed on the beach at various times. COASTAL CONSTRUCTION CONTROL LINE ESTABLISHED A beach segment was in existence at the time the coastal construction control line was established, and recorded, on June 4, 1975, although the beach segment that then existed went straight from the foot of the sand dune toward the edge of the gulf, instead of veering east like the new; longer beach segment built last September. THEN EXISTING ROAD DESTROYED, REPLACED In September of 1975, Hurricane Eloise removed not only the beach segment of the road but much of the beach, including the dunes themselves. As road foreman for District Five at the time, Robert N. Budreau used a road grader and other equipment to fill a large hole between the Warren house and the sand dune and to cover over broken toilets and other debris with a mixture of sand and yellow clay. After the filling, a roadway was constructed with the same sand and clay mix, extending about 25 feet seaward of the dunes along a line perpendicular to the gulf shore. REPLACEMENT ROAD RECLAIMED BY ELEMENTS In 1976, Freddie M. Bishop was elected county commissioner for District Five. After the beach segment built by Mr. Budreau washed out, at least one constituent, Gene Wesley, asked Mr. Bishop to replace it, but Mr. Bishop broke with sisyphean tradition, and declined to place any clay on the beach, or otherwise attempt to reconstruct or replace the beach segment. By the time petitioner McLean succeeded Bishop as commissioner for District Five, the beach segment had been completely obliterated. The end of the upland road continued, however, to be one of some half-dozen points of access for four-wheel drive vehicles to Walton County's gulf beaches. Commissioner Bishop did cause two truckloads of oyster shells to be deposited on the "hump" of the landward sea dune, on or near the bluff line. NEW BEACH SEGMENT In response to constituents' requests, Mr. McLean ordered a new road built. He caused clay and gravel to be placed and compacted seaward of the coastal construction control line by county workmen and machinery, including some "borrowed" for the purpose from colleagues on the Walton County Commission. Built without a DNR permit in September of 1981, this new beach segment extends 180 feet seaward of the coastal construction control line and takes an unprecedented veer to the east. The only preexisting foundation for the new beach segment was the beach itself. Like Commissioner Anderson, Commissioner W. F. Miles "lent" county trucks he had charge of to respondent McLean, but Mr. Miles did not know in advance that Mr. McLean intended to use them to build a road on the beach. Commissioners Matthews, Miles, and Owens were aware of the existence of the coastal construction control line in Walton County and, in a general way, of DNR permitting requirements and procedures, including the fact that the County Commission itself acts on certain coastal construction applications. Commissioners Anderson and McLean did not testify on these matters. DNR has issued no permit for anything like the new beach segment at any time since the coastal construction control line wad established. DNR has no record of any inquiry concerning the new beach segment by or on behalf of petitioners McLean or Walton County, before the new beach segment was built. There was no showing that Mr. McLean sought legal advice before ordering construction of the new beach segment. Paragraphs 1 through 8 of DNR's "Final Order," as amended at the final hearing and set forth above, have been established by stipulation of the parties. The hearing officer has had the benefit of posthearing submissions, including proposed findings of fact, filed by all parties. Proposed findings have been adopted, in substance, where relevant, except when unsupported by appropriate evidence.
Recommendation Upon consideration of the following, it is RECOMMENDED: That DNR order petitioner Walton County to remove the new beach segment seaward of the Walton County Coastal Construction Control Line within 30 days of entry of a final order. That DNR remove the new beach segment seaward of the Walton County Coastal Construction Control Line itself, in the event of petitioner Walton County's noncompliance with the final order; and take steps to recover the cost from petitioner Walton County. That DNR impose no civil or administrative fine against petitioner W. L. "Billy" McLean. DONE AND ENTERED this 30th day of July, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982. COPIES FURNISHED: George Ralph Miller, Esquire Post Office Box 687 DeFuniak Springs, Florida 32433 W. Dennis Brannon, Esquire Post Office Box 1503 Fort Walton Beach, Florida 32549 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 M. Stephen Turner, Esquire Post Office Drawer 591 Tallahassee, Florida 32303 Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
Findings Of Fact In 1981, Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley Petitioners' Exhibit 1, Respondent's Exhibit 1) At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December, 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20) On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984 that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area . . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16) The height of the dune line on petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under deed covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to some extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8) Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21) Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10) Although conflicting evidence was received as to whether or not the existing structures east of Petitioners lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioner's Exhibit 1) Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2) The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4.)
Findings Of Fact At all times material here to, Respondent, John Bamberg ("Bamberg"), has been a corporate officer of Sand Dollar Development, Inc. ("Sand Dollar"). Sand Dollar is a company engaged in the construction of condominium buildings in St. Johns County, Florida. Sand Dollar is responsible for the construction of two buildings known as Sand Dollar 1 and Sand Dollar 2. Bamberg acted as agent on behalf of Sand Dollar in filing permit applications with the Department of Natural Resources ("DNR") for construction activity related to those two buildings, which are located on the ocean front in St. Johns County slightly landward of the CCCL. In July 1980, DNR received an application for a CCCL permit from Bamberg on behalf of Sand Dollar which was assigned file No. SJ-P19-80. This application was for a construction access area, seaward of tie CCCL, too allow ingress and egress of construction material and machinery to the site of Building 1, which is located an average of two feet landward of the CCCL. Permit No. SJ-P19-80 was issued by DNR on July 23, 1980, for construction to be completed on or before January 23, 1982. The permit allowed for the use of a construction access area to extend a maximum of approximately 30 to 35 feet seaward of the CCCL, or to the location of the existing, preconstruction line of palmetto and sea oat vegetation. The permit further provided that a temporary construction fence was to be installed along the upland line of the palmetto-sea oats area, seaward of which no construction activity was authorized. Specifically, the permit provided that: There is to be no permanent alteration of dune topography and no destruction of Palmetto or Sea oat vegetation beyond the temporary fence location. All disturbed vegetation and altered topography must be restored to the original, preconstruction condition prior to completion of the construction activity. A post-construction topographic survey, sealed by a registered surveyor in the State of Florida, indicating re-establishment of grade elevation contour line must be submitted to the Bureau of Beaches and Shores prior to completion of construction. All re-established elevations must coincide with the elevations indicated on the original, pre-construction survey which was received by this office on April 11, 1982. Conditions of the permit required that the authorized work be conducted in such a way as to minimize adverse impacts on the dune system adjacent to the improvements. In April of 1980, Bamberg submitted on behalf of Sand Dollar an application to DNR for a CCCL permit to allow the lowering of dune elevations seaward of the CCCL at the site of Building 1 to an elevation of plus 20 feet for a length of approximately 300 linear feet, and to remove existing vegetation and replace it with sod and other plants. The existing elevations shown on the topographic map submitted with that application ranged as high as plus 25 feet (NGVD). Approximately 915 cubic yards of sand were proposed to be excavated and removed from the dune areas, together with existing dune stabilizing vegetation. The proposed excavation was to extend from the CCCL to approximately 65 feet seaward of that line. The application also proposed the addition of sand fill seaward of the existing dune system. The purpose of this application was apparently to provide an unobstructed view of the ocean for the first four units in Building 1. This permit application was denied by Final Order dated April 30, 1981. The application was denied at least in part because the dune systems provided a barrier to storm waves and tidal action, and the adverse effects associated with them. On April 13, 1981, Bamberg, again acting as agent for Sand Dollar, applied to DNR for a permit for construction access seaward of the CCCL for Building 2, located adjacent to Building 1. The application was received on April 20, 1981, and on April 23, 1981, DNR notified-Bamberg that We application had been received for processing. Pursuant to that application, Permit No. SJ- 53-81 was issued on May 13, 1981, providing for operation of construction vehicles to a maximum of 35 feet seaward of the CCCL. The permit further required that a temporary construction fence be installed along the upland line of palmetto and sea oat vegetation, seaward of which no construction activity was authorized. On April 14, 1981, Bamberg submitted a completion of construction certificate for Permit No. SJ-P19-80 to DNR as required to certify that completion of the construction access for Building 1 had been completed. On April 29, 1981, a field inspector for DNR visited the construction site of Buildings 1 and 2. On the site of Building 1, which had been issued a permit for construction access 30 to 35 feet seaward of the CCCL, excavation had occurred as much as 52 feet seaward of the building. The dune immediately seaward of the permitted access area had been substantially damaged, and dune vegetation in the area had been removed. Excavation and topographic lowering had occurred within the permitted construction access area, resulting in a lowered and graded elevation of approximately plus 29 feet (NGVD), which was inches lower than the first floor slab of Building 1. Based upon the preexisting topography as shown in topographic map submitted with the permit application, the excavation in the permitted access area resulted in a lowering of from one to four feet in various areas. As of April 30, 1981, the exterior construction of Building 1 was essentially complete, and the building was located approximately two feet landward of the CCCL. The entire construction access area had been excavated, cleared and graded at a level approximating that of the first floor slab. On April 30, 1981, the temporary construction fence, which had been installed as required by the permit, had been removed, and excavation of dune material and removal of dune vegetation had occurred beyond the permitted access area up to 50 feet seaward of the CCCL. Measurements on the site taken that day showed that excavation had lowered the existing topography to an approximate elevation of plus 20 feet (NGVD), or a roughly level with the graded access area. This excavation had resulted in a topographic lowering of from four to five feet in the dune area. Dune stabilizing vegetation had been removed and the area had been graded. Vegetation on the dune had ranged from very heavy to light, and a substantial portion of the dune had been affected by this activity. The area of excavation ran the length of the property for Building 1, and was approximately 300 linear feet in a shore-parallel direction. Dunes seaward of the permitted construction access would have blocked the ocean view of a first floor condominium resident if the unpermitted excavation had not occurred seaward of the construction access area. On April 30, 1981, the construction access for Building 2, immediately south of Building 1, and seaward of the CCCL, had been cleared and graded, and a temporary fence erected approximately 25 feet seaward of the CCCL. This was the activity for which a permit had been sought by Sand Dollar in Permit Application No. SJ-53-81. This permit application was received on April 20, 1981, and had not been issued as of April 30, 1981. The permit was, in fact, not issued until May 13, 1981, but there is no evidence of record to establish that the premature work performed by Sand Dollar differed in any way from that ultimately permitted by DNR. In addition, DNR concedes that no adverse environmental impact resulted from that activity. Construction on the Building 1 project was completed on April 14, 1982, almost one year after the DNR staff visit to the building site on April 29, 1981. Subsequent thereto, DNR and Sand Dollar entered into a settlement agreement which required Sand Dollar to restore the site in accordance with the terms of that agreement. Sand Dollar has completed its obligations under that agreement to the satisfaction of DNR. The policy of DNR in determining the amount of civil fines to be assessed for violations of Chapter 161, Florida Statutes, is to consider the adverse environmental impact of violations, the demonstrated intent and willfulness of the violator and the sufficiency of the amount of any fine to ensure immediate and continued compliance with applicable laws.
