The Issue Whether Florida Administrative Code Rule 62B- 33.008(4)(d) should be determined to be an invalid exercise of delegated legislative authority? The Rule requires that an application for a permit for construction seaward of a coastal construction control line ("CCCL") contain "written evidence, provided by the appropriate local government agency . . ., that the proposed activity . . . does not contravene local setback requirements, zoning, or building codes and is consistent with the State approved Local Comprehensive Plan." Whether a statement alleged to have been made by an employee of the Bureau of Beaches and Wetland Resources in the Department of Environmental Protection ("DEP" or "the Department") violated Section 120.54(1)(a), Florida Statutes? The alleged statement is to the effect that in determining if structures littoral to the coast have established a continuous construction line closer to the mean high water line than the CCCL, the Department uses a 1000-foot distance to structures on either side of the proposed project.
Findings Of Fact The CCCL and Continuous Lines of Construction The CCCL The Legislature has declared it in the public interest to preserve and protect Florida's beaches and the coastal barrier dunes adjacent to them. See § 161.053(1)(a), Fla. Stat. In furtherance of this intent, the Department is empowered to "establish coastal construction control lines on a county basis along the sand beaches of the state fronting the Atlantic Ocean . . .". id., "after it has been determined from a comprehensive engineering study and topographic study that the establishment of such control lines is necessary for the protection of upland properties and the control of beach erosion." § 161.053(2)(a), Fla. Stat. The Department defines "Coastal Construction Control Line" or "CCCL" as "the line established pursuant to the provisions of Section 161.053, F.S., and recorded in the official records of the county, which [delineates] that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions." Fla. Admin. Code R. 62B-33.002(12). Brevard County's CCCL bisects property along the Atlantic Ocean owned by Petitioner and her husband. Continuous Lines of Construction The Department is mandated to exempt from some regulation certain construction that is seaward of a CCCL. See, e.g., Section 161.053(2)(b)1., Florida Statutes, which relates to construction landward of beach armoring. In addition, the Department is granted discretion to permit construction seaward of a CCCL in other instances. One such instance relates to construction landward of "a reasonably continuous and uniform construction line," Section 161.053(5)(b), Florida Statutes (a "Continuous Line of Construction") that is seaward of the CCCL. Subsection 161.053(5)(b): (5) Except in those areas where local zoning and building codes have been established pursuant to sub-section (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows: * * * (b) If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing [the coastal construction control lines], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department. However, the department shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided herein . . . This proceeding involves a permit for construction seaward of the CCCL and landward or on a Continuous Line of Construction. The lines are in Brevard County where property is owned by both Petitioner and Intervenors, who, together with DEP, comprise the parties to this proceeding. The Parties Petitioner Carol C. Pope resides part-time in a duplex along Wilson Avenue on Cape Canaveral in Brevard County. She owns this oceanfront property, littoral to the Atlantic Ocean, with her husband James M. Pope. Although the property has a Cocoa Beach mailing address, it is not within the city limits of Cocoa Beach. The pre-hearing stipulation filed by all of the parties offers this account of the property's location: "The Pope's property is Lot 11, Block 101, Avon by the Sea, as described in Plat Book 3 page 7, [presumably in the Official Records of Brevard County] and east to Ocean, except the west 13 feet of Lot 11." Ms. Pope is the Petitioner in both of the consolidated cases that comprise this proceeding. The Department Among many duties related to environmental protection, the Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control lines; activities seaward of the coastal construction control line; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties." § 161.053(21), Fla. Stat. Pursuant to its rule-making authority in Section 161.053 (together with other specific authority), the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)." Two employees of the Department Tony McNeal, P.E., and Srivinas Tammisetti, P.E., testified at hearing. Both are engineers and both are involved with the Coastal Construction Control Line Program. Mr. McNeal is the program administrator. Mr. Tammisetti is a Professional Engineer II with the Department's Bureau of Beaches and Wetland Resources (the "Bureau"). He is responsible for "coastal armoring projects for the entire state" (tr. 52) and he is the head engineer for Lee County. In his capacity with the Bureau, Mr. Tammisetti reviews applications for activities seaward of the coastal construction control line. The Rays Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No. BE-1083 (the "Permit") issued by the Department in its order filed September 19, 2003. The Permit is the subject of the administrative proceeding initiated by Ms. Pope in DOAH Case No. 03-3981. Events Preceding the Permit's Issuance The Rays applied to DEP for a permit to conduct activities seaward of the CCCL, including construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry walls, and an exfiltration system. The Department approved the application. The Department's order issuing the Permit is titled "Permit for Construction or Other Activities Pursuant to Section 161.053, Florida Statutes." Intervenor's Ex. 1, Tab 6, pg. 1. The Permit acknowledges the application is for "authorization to conduct . . . activities seaward of the coastal construction line" and describes the location of the proposed project as "landward of the 30-year erosion projection and the existing line of construction established by major structures in the immediate area [the Continuous Line of Construction]." Id. While the application was pending before DEP, Ms. Pope visited the offices of the Department in Tallahassee several times. During the first visit (June 23, 2003), Ms. Pope reviewed the permit file and met with Mr. Tamisetti. At one point in the meeting, Ms. Pope asked Mr. Tamisetti how he determines the existence of Continuous Construction Lines. Ms. Pope testified at hearing that Mr. Tamisetti's answer was to the effect that "we look at a thousand feet on either side of the proposed structure." (Tr. 20). These were not necessarily Mr. Tamisetti's exact words but it is clear from the record that the substance of Ms. Pope's claim of what was said is correct; Mr. Tamisetti told Ms. Pope that the Department uses a thousand-foot distance on either side of a proposed structure in order to determine whether existing structures have established a Continuous Line of Construction seaward of the CCCL. The Rule Among the rules in the chapter for which Section 161.053 served as the sole specific authority is Rule 62B-33.008 (the "Rule"). It bears the catchline "Permit Application Requirements and Procedures." The Petition of Ms. Pope in Case No. 03-3860RX challenges subsection (d) of Section (4) of the Rule: (4) Any person desiring to obtain a permit for construction seaward of the coastal construction control line (CCCL) . . . from the Department . . . shall submit two copies of a completed application form. * * * The application form shall contain the following specific information: * * * (d) Written evidence, provided by the appropriate local governmental agency having jurisdiction over the activity, that the proposed activity, as submitted to the Office, does not contravene local setback requirements, zoning, or building codes and is consistent with the state approved Local Comprehensive Plan. Fla. Admin. Code R. 62B-33.008(4)(d). The Rule implements Section 161.052, "Coastal construction and excavation; regulation" as well as Section 161.053. Petitioner contends that the quoted portion of the Rule should be determined to be invalid because, while the statute directs that DEP in issuing permits of the kind obtained by the Rays "shall not contravene" local setbacks and building and zoning codes, it does not authorize DEP "to rely upon a letter mailed to an applicant from someone employed by an "appropriate" local government to prove that an activity would comply with the statutory directive." Proposed Final Order submitted by Petitioner, p. 18. As pointed out by Ms. Pope in her Proposed Final Order, DEP does not maintain nor does it require applicants for permits related to activity seaward of a CCCL to submit comprehensive land use plans, local setback requirements, zoning or building codes of counties and municipalities along Florida's coast. Instead, as sanctioned (in fact, required) by the Rule, DEP allows applicants to submit written evidence provided by the local government that the proposed activity does not contravene the enumerated regulations and is consistent with the local comprehensive plan. The parties have stipulated that the Department has not delegated its permitting authority under Chapter 161, Florida Statutes, to Brevard County. The Statement The statement made by Mr. Tamisetti (the "Statement") is similar to one he has made many times over the course of his employment with the Department. Without reservation, Mr. Tamisetti testified as much at hearing. The Statement has been interpreted as DEP's common method of prescribing lines of continuous construction by at least one member of the public. A professional engineer who conducts coastal engineering analysis, opined in writing to one of his clients that: The DEP has commonly prescribed the "line of continuous construction" by the line established by the average seaward limits of the foundations of the structures within 1000? feet north and 1000? feet south of the subject property or the seaward limits of the most seaward structures within 1000? feet north and south of the subject property Petitioner's Ex. 14, p. 1 following the cover letter. Mr. Tamisetti maintained at hearing, however, that the statement he made to Ms. Pope was not a common method for determining a Continuous Construction Line. Rather, the Statement constituted a starting point for those who inquired about how such lines were determined to exist. The Department does not contend otherwise. In the Pre-hearing Stipulation executed by all parties, the Department's position with regard to the Statement of Mr. Tamisetti is found on page 4: "The statement [that DEP uses a 1000-foot distance on either side of a proposed structure to establish a Continuous Line of Construction] is merely a guideline to allow applicants and their engineers a starting place for providing the Department information regarding the line of construction." The reason for the Statement was discussed by Mr. Tamisetti in his testimony. When a concerned party poses the question of how DEP would determine a Continuous Line of Construction as to a certain site, the question can only be definitively answered by asking questions of that party, in turn, and requesting sufficient data. Responding might entail costs prohibitive to the party. "A thousand feet" is offered as "a starting point . . . to give them something" (tr. 61) as an estimate for whether to pursue the effort to have such a line established. In one project, Mr. Tamisetti offered, the distance from a proposed structure to an existing structure might be "500 feet"; in another "2000 feet." (Tr. 61, 62). Ultimately, Mr. Tamisetti insisted the determination is site specific and cannot be made across the board on the basis of a measurement of 1000 feet. The Permit's Relationship to the Statement Ms. Pope produced evidence of the location of a Continuous Line of Construction determined by DEP to exist for purposes of the Ray's permit, DEP Permit No. BE-1083. She concludes in her proposed final order: [T]he line that DEP depicted approximates the line that would be derived by drawing a line from existing structures within 1000 feet on either side of the structure proposed in BE-1083. (citation to record omitted) The derivation of the line of continuous construction can only be a result of using the foundations of building within 1000-feet on either side of the proposed Michelina Condominium, as readily seen on the DEP April 2002 aerial photograph . . . Proposed Final Order, submitted by Petitioner, p. 8. Furthermore, Ms. Pope points out DEP has two rules relevant to the interrelationship between the permit and her claim that the Statement is a rule in violation of Section 120.54(1)(a), Florida Statutes. Florida Administrative Code Rule 62B-33.005(4), in her view, requires that applications for permits to conduct activity seaward of a CCCL "be 'clearly justified' by the applicant." Id. "Secondly," she asserts, DEP has an existing rule that requires applications to include surveys that depict accurate dimensions and locations of the foundation outlines of any existing structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line. Rule 62B- 33.008(4)(f)15, F.A.C. Id., at 8-9. These rules relate, obviously, to the Permit Case. Coupled with the location of the Continuous Line of Construction determined by DEP with regard to the Rays' application for purpose of the un-promulgated rule challenge, however, they do not overcome other evidence as to how the Bureau determines the existence of Continuous Lines of Construction seaward of CCCLs. That evidence is the testimony of Mr. McNeal, the head of DEP's Coastal Construction Control Line Program. The Testimony of Mr. McNeal Ms. Pope's claim that the only credible evidence in the case demonstrates that the Statement is an un-promulgated rule overlooks convincing credible evidence provided by Mr. McNeal. Mr. McNeal's testimony shows that the Statement is not reflective of a policy followed by DEP that creates rights or imposes duties upon the regulated. It is not reflective of a policy of the Bureau of Beaches and Wetland Resources that does so either. Nor is it reflective of such a policy of the Bureau's Coastal Construction Control Line Program. As explained by Mr. McNeal, if an applicant would like to build on a Continuous Construction Line seaward of the CCCL, the applicant typically must demonstrate that the Continuous Construction Line exists by data provided with the application. Petitioner's Exhibit 7, entitled "Request for Additional Information" was identified by Mr. McNeal at hearing as "a template for our standard information package that comes with the application." (Tr. 40). "The items of information listed [on the request] are numbered to correspond with the item numbers on the application form." Petitioner's Ex. 7, p. 1. The following appears under Item 9: Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of application. The topographic survey drawing shall include the following specific information: * * * - Accurate dimensions and locations of the foundation outlines of any existing structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of 161.053(5)(b), . . . Florida Statutes . . . (Id., pps. 2-3). There is no reference to the "1000 feet" measurement in the Bureau's Request for Additional Information. Furthermore, when an application is submitted that is incomplete with regard to the location of existing structures, the Department does not always resort to a request for additional information. The Department has an extensive database that includes aerial photographs, GIS images, and topographic information collected with regard to DEP reference monuments spaced along the shoreline. On occasion, the DEP database is sufficient to determine whether such a line exists without additional information provided by the applicant. When a determination of a Continuous Line of Construction is made by DEP, it is made specific to the site of proposed construction on the basis of the information submitted by the applicant or on the basis of publicly held data. The determination is not made on the basis of Mr. Tamisetti's statement to Ms. Pope or on the basis of unwritten policy related to existing structures within 1000 feet of the proposed structures. A Rule of Thumb for Prospective Applicants Mr. McNeal's testimony sheds direct light on the actual practice of DEP and the Bureau of Beaches and Wetland Resources in determining the existence and location of Continuous Lines of Construction. When the Petitioner's case is measured against the Department's, the best for Petitioner that can be said of the Statement is that it is precisely what Mr. Tamisetti claims. It is a "rule of thumb," and a rough one at that, for whether it is worthwhile for a party to pursue the establishment of a Continuous Construction Line in order to conduct activity, including construction, seaward of an established CCCL. It does not constitute an agency statement of general applicability that meets the definition of a "rule" in the Administrative Procedure Act and that is subject to the Act's rule-making requirements.
Findings Of Fact On February 10, 1988 Harry B. Williams made application to the Department of Natural Resources for permission to construct a single-family dwelling with appurtenant structures at 2831 Ponte Verda Boulevard South, South Ponte Verda Beach, Florida. The permit sought was a coastal construction control line permit which would allow construction seaward of that line in the direction of the Atlantic Ocean. A copy of that permit application may be found as Department's Exhibit Number 2. Associated with the permit application was a description of the plans related to the dwelling and other structures. This application was received by the Department February 11, 1988. Following a review of the permit application the Department deemed it complete as of February 22, 1988. A site inspection was made of the property and a report was prepared by an employee with the Department, a Mr. Partel. The report may be found as Department's Exhibit Number 4, which includes photographs of the prospective building site, together with the surrounding property to include dwellings to the north and south of the lot where the Williams home would be built. As commented on by Mr. Partel the applicant had intended at that time to construct a single-family dwelling a maximum of 75 feet seaward of the coastal construction control line. Although this evaluator, Mr. Partel, felt that the applicant had requested the right to construct a dwelling which was in line with existing construction, he felt that it could be moved further landward and that it could be limited in deck size and that a cantilevened form of construction was preferable to the concrete called for in the plans set out in the application information. It was also suggested that the sea oats that were in the way of the construction should be relocated seaward on a dune face slope where a denuded area is found. In this connection, the Department is empowered to make suggestions to the applicant concerning the minimization of the adverse impacts on the beach-dune system. Following the site visit of February 26, 1988 the Department wrote the applicant on March 11, 1988 and indicated concerns about the proximity of the dwelling to the crest of the dune. A copy of this correspondence may be found as Department's Exhibit Number 5. In the correspondence the Department asked the applicant to move the proposed dwelling 10 feet landward and that the 10 foot wide concrete patio, on the seaward side, be modified to a 10 foot wide wooden deck. The letter told the applicant that the approval would be conditioned on the sea oats and other dune grasses that would be disturbed by the proposed structures being replanted seaward of the project in the denuded areas of the dune. The applicant agreed to these changes. The relocation of the structure 10 feet landward took it away from the beach- dune system. The modified site plan that was brought about by the suggested changes is found Department's Exhibit Number 6, a copy of that amended site plan. With the relocation the construction would be 66 feet seaward of the coastal construction control line. An aerial photograph of the site location reference the basic design of the dwelling and the proximity to the relevant or existing coastal construction control line is found as Department's Exhibit Number 3. In responding to the suggestions to the change in location the modified site plan which moved the dwelling 10 feet landward was received by the Department on August 1, 1988. Under this arrangement the applicant had agreed to waive the requirements of Section 120.60, Florida Statutes pertaining to the obligation by the Department to review and decide its action of grant or denial within 90 days of date of receipt of the application. With the changes being made to the location of the proposed dwelling and associated structures and the type of construction materials used in the patio on the seaward side, together with the relocation of the plant life, the impact on the beach-dune system and adjacent property is acceptable. There is no adverse impact on the beach-dune system or on the adjacent properties. The location of the proposed dwelling and its associated structures as it relates to the 30-year erosion projection under the terms of Section 161.053, Florida Statutes, in this instance, shows that the dwelling would be approximately 55 feet landward of the 30-year erosion projection and not at risk. Calculations related to this finding may be found within Department's Exhibit Number 7. The existing coastal construction control line dates from January 28, 1988. Although the original application referred to the previous line of 1978 in describing the site plan and survey, the reason for this was that the site plan and survey were prepared prior to the establishment of the January 28, 1988 line, as allowed. In the course of the hearing appropriate reference was made to the January 28, 1988 line as it relates to the anticipated location of the dwelling and other structures as modified at the instigation of the Department. As contemplated by Section 161.053(5)(f), the Department required the applicant to provide mitigation of the- effects of the construction as a condition to a grant of the permit. Those permit conditions may be found in the Department's Exhibit Number 8, a copy of a proposed final order. Included within those would be the requirements for erection of a temporary construction fence on the site to protect existing native dune vegetation from the impacts of that construction, in addition to the requirement of the dune vegetation relocation. This would involve the irrigation and application of fertilizer to those plants with the expectation that a certain percentage would survive over time as described in this special condition. This project will not pose a hazard to the sea turtle and its hatchlings and habitat for the sea turtles and hatchlings. Ms. Butler, Petitioner in this cause, has a beach home which is north of the Williams property separated by a 10 foot easement between those properties. In mid July, 1988 Ms. Butler offered a written statement in opposition to the placement and size of the proposed dwelling together with other remarks and asked that the Department provide her information and documents pertaining to the application under the authority of Chapter 119, Florida Statutes. On August 10, 1988 the Department dispatched a letter of inquiry to surrounding property owners to include Ms. Butler and solicited remarks concerning the Williams application to be provided on or about August 20, 1988. Ms. Butler had received certain documents from the Department concerning the application sometime in the middle of August 1988. On August 18, 1988 Butler made known her objection to the project on the grounds that the concerns about the 30-year erosion line and the size and placement of the dwelling. On September 2, 1988 the Department informed Ms. Butler of the intent to grant the permit to Mr. Williams. A copy of that correspondence may be found as Petitioner's Exhibit Number 5. This led to a timely request for hearing by Ms. Butler stating her opposition to this project. The request was received in accordance with the Department's advice that the request must be filed by September 26, 1988. Based upon the prehearing conference and the discussion of those issues which would be allowed for consideration as stated in the request for hearing and the statement of particulars that attend the request for hearing, commented on by the hearing officer at the commencement of the final hearing, and found within the transcript and further stated in the issues portion to this Recommended Order, this case has been carried forward. The presentation made by the Petitioner, after the Department and applicant had offered their cases, was through her testimony and that of employees of the Department together with exhibits she offered. The testimony of the Department employees concerned the procedural techniques that the agency pursued in reviewing the application at issue. Ms. Butler described her concern for her property, and the area between her property and the Williams property. This is the 10 foot easement area which is sparsely vegetated and low. As a consequence she was concerned that her property might be destroyed with the advent of the Williams construction. She has no expertise in her own right nor did she present expert opinion from other witnesses which would tend to bear out her concern. She also expressed the concern that the Williams home, in its dimensions, was too large and that it should be relocated an additional 10 feet back from the adjusted placement following the Department's criticism of the original application. In effect, she would have the house placed 20 feet away from the sea as compared to the original site plan submitted with the application on February 10, 1988. Again, there is no competent evidence presented which would support her theory that this further relocation was needed. Her expression of concern for the sea turtles and their hatchlings and habitat was not well founded. Turtles are known to nest on the sandy flat beach area and the construction of the Williams property will not interfere with that area adjacent to the ocean.
Recommendation Based upon a consideration of the facts and the conclusions of law reached, it is RECOMMENDED: That the Department enter a Final Order which grants a coastal construction control line permit to Harry B. Williams, Jr., based upon his modified plan required by the Department and upon the special permit conditions announced in the proposed final order, a copy of which is found as Department's Exhibit Number 8. DONE and ENTERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 27th day of April, 1989.
The Issue The issue to be determined in this case is whether Respondent Steven Hanson is entitled to a coastal construction control line ("CCCL") permit to construct a single-family residence and associated structures seaward of the CCCL on Anna Maria Island, Manatee County, Florida.
Findings Of Fact The Parties Respondent Hanson owns an undeveloped lot located at 107 Elm Avenue in Anna Maria, Florida ("the project site"), upon which he proposes to construct a residence and related structures that are authorized by the CCCL permit challenged by Petitioners. Petitioners Ronnie E. and Pamela Young own a single- family residence at 110 Pine Avenue in Anna Maria. The Young property is about 60 feet landward of the project site. Blanton Homestead, LLC, owns a single-family residence at 109 Elm Avenue in Anna Maria, which is contiguous to the Hanson Property. Blanton entered into a settlement agreement with Hanson and withdrew its petition and opposition to the CCCL permit. The Department is the agency responsible for regulating construction activities seaward of the CCCL pursuant to Part I of Chapter 161, Florida Statutes, and Florida Administrative Code Rule 62B-33. The Project Site The project site is seaward of the CCCL established in accordance with Section 161.053, Florida Statutes. The shoreline in this area has experienced relatively large fluctuations. It is included in the State's Strategic Beach Management Plan, which means that it has been prioritized for beach restoration. This area was included in a 2002 beach nourishment project. In the eight years since the nourishment, the project has "performed" well and the shoreline in front of the project site has accreted since the completion of the nourishment project. The shoreline is now 331 feet more seaward than its position in 1998. A permit was issued in July 2010 for a renourishment project in this area. The project site is approximately 350 feet landward of the mean high water line of the Gulf of Mexico. The project site is densely vegetated and includes sea grapes and sea oats. One or two active gopher tortoise burrows may exist on the project site. On each side of the project site are platted road rights-of-way that run perpendicular to the shoreline. On the northwest side of the project site is Elm Avenue, a 50-foot-wide public asphalt street, at the seaward end of which is a wooden walkway to the beach. On the southeast side of the project site is a ten-foot-wide platted alley. Adjacent to the project site on the southeast is the Brown property and residence, which was the subject of a CCCL permit issued in 2005. Continuing southeast from the Brown property is Pine Avenue. Dunes in the Area Florida Administrative Code Rule 62B-33.002(17) defines "dune" as "a mound, bluff or ridge of loose sediment, usually sand-sized sediment, lying upland of the beach and deposited by natural or artificial mechanism, which may be bare or covered with vegetation and is subject to fluctuations in configuration and location." A "frontal dune" is defined as "the first natural or man-made mound or bluff of sand which is located landward of the beach and which has sufficient vegetation, height, continuity and configuration to offer protective value." See § 161.053(6)(a)1., Fla. Stat. (2009).2/ "Protective value" is defined as "the measurable protective level" afforded by the dune system to upland property and structures from erosion and storm surge. See Fla. Admin. Code R. 62B-33.002(50). A "significant dune" is defined as having "sufficient height and configuration or vegetation to offer protective value." See Fla. Admin. Code R. 62B-33.002(17)(a). A "primary dune" is defined as "a significant dune which has sufficient alongshore continuity to offer protective value to upland property." See Fla. Admin. Code R. 62B- 33.002(17)(b). A primary dune may be the frontal dune if it is located immediately landward of the beach. Id. The parties disputed the proper classification of the dunes in the area of the proposed project. Their dispute is not surprising because all three types of dunes are defined as offering protective value to upland property. To state, for example, that a primary dune is a significant dune (one that offers protective value) with sufficient alongshore continuity to offer protective value, sounds circular. It is apparently the practice of the Department to treat the term "continuity" in the definitions of "frontal dune" and "primary dune" as a paramount factor. The Department does not consider a dune to qualify as a frontal dune or a primary dune unless it offers a high degree of protection because of its continuity. The most seaward dune from the project site was described by Tony McNeal, administrator of the Department's CCCL program, as a "dune system," consisting of scattered, vegetated mounds with peak elevations of about 7 feet.3/ This dune system spans the entire width of the project site and is about 180 feet wide. In recent years, the mounds have grown in size and the amount of vegetation on the mounds has increased. These mounds offer some protective value and, therefore, qualify as significant dunes. Hanson's coastal engineer, Michael Walther, believes the mounds qualify as a frontal dune, but he conceded that they would only provide protection for relatively high-frequency (e.g., 10-year) storm events. The public's pedestrian access from Elm Avenue and Pine Avenue has resulted in wide, denuded, and flattened paths through the dune system to the shoreline. Because the mounds do not create a continuous dune, but have these and other "flow lanes" through which storm surge could pass and reach upland areas, Mr. McNeal does not think they qualify as a frontal dune. Landward of the mounds is a manmade dune constructed by the applicant pursuant to a "field permit" from the Department which Hanson is offering as part of the mitigation for the impacts of the proposed project. The manmade dune spans the length of the project site (110 feet), is about 15 feet wide, and is 7 feet high. It is planted with sea oats. It was constructed with 109 cubic yards of sand. The manmade dune offers little protective value because of its small size. The primary benefits of the manmade dune are that it increases the volume of sand in the system and is vegetated. Landward of the manmade dune is a natural dune on the project site that is about 220 feet long (shore parallel), 5.0 to 8.3 feet in height, and 35 to 60 feet wide. Petitioners' coastal engineer, Karyn Erickson, believes this dune qualifies as a frontal dune. Mr. Walther thinks it is a primary dune. All the coastal engineers agreed that it was a significant dune because it provides some protective value to upland properties. However, despite this dune's height and vegetation, it lacks continuity, being interrupted on the north side by Elm Avenue, and flattening to some extent on the southeast on the Brown property and then terminating before it reaches Pine Avenue. The dune would not prevent storm surge from passing around it to inundate upland properties. Therefore, it does not provide sufficient protective value to qualify as a frontal dune. For the same reason, it does not qualify as a primary dune. It is probably most accurate to describe this dune as a remnant of what was once a primary dune. The Proposed Project The CCCL permit authorizes the construction of a single-family dwelling, slab, storage enclosure, entry foyer, shell driveway, and landscaping. The Department's permit file number is ME-919. In July 2007, the project site was conveyed from Buky to Hanson. In November 2009, the Department approved a request to transfer the CCCL permit from Buky to Hanson. The exterior dimensions of the dwelling are 58 feet by 29.3 feet, which is about 30 percent of the project site. The proposed dwelling would have two habitable floors elevated above the ground on pilings. The lower floor would be 17.5 feet above sea level, which is the elevation necessary to protect the structure from the 100-year storm surge. Underneath the dwelling would be a concrete slab or pad for parking, a storage enclosure, and a stairway. The proposed project would be located on top of the natural dune located on the project site. The height of the dune underneath the slab varies, but would have to be made level for the slab. Hanson would add 20 cubic feet of sand to the dune. The finished slab would be at a minimum height of 6.5 feet. The building would be constructed in a manner to prevent the creation of wind- or water-borne debris in the event of a hurricane. The proposed driveway and slab would eliminate some natural vegetation, including some sea oats and two sea grape trees. To mitigate for the proposed project's impact to the dune and vegetation, Hanson placed 100 cubic yards of sand on the project site to create the manmade dune and planted it with sea oats. In addition, Hanson would install sea oats, sea grapes, and cabbage palms seaward of the dwelling. The dwelling has been moved as far landward as is allowed under the local government building code. The proposed project would comply with the lighting guidelines of the Florida Fish and Wildlife Conservation Commission for the protection of sea turtles. Hanson obtained a letter of no objection from the City of Anna Maria for the proposed project. Permit Criteria Criteria for issuance of a CCCL permit are found in Florida Administrative Code Rule 62B-33.005(4): The Department shall issue a permit for construction which an applicant has shown to be clearly justified by demonstrating that all standards, guidelines, and other requirements set forth in the applicable provisions of Part I, Chapter 161, F.S., and this rule chapter are met, including the following: The construction will not result in removal or destruction of native vegetation which will either destabilize a frontal, primary, or significant dune or cause a significant adverse impact to the beach and dune system due to increased erosion by wind or water; The construction will not result in removal or disturbance of in situ sandy soils of the beach and dune system to such a degree that a significant adverse impact to the beach and dune system would result from either reducing the existing ability of the system to resist erosion during a storm or lowering existing levels of storm protection to upland properties and structures; The construction will not direct discharges of water or other fluids in a seaward direction and in a manner that would result in significant adverse impacts. For the purposes of this rule section, construction shall be designed so as to minimize erosion induced surface water runoff within the beach and dune system and to prevent additional seaward or off-site discharges associated with a coastal storm event. The construction will not result in the net excavation of the in situ sandy soils seaward of the control line or 50-foot setback; The construction will not cause an increase in structure-induced scour of such magnitude during a storm that the structure- induced scour would result in a significant adverse impact; The construction will minimize the potential for wind and waterborne missiles during a storm; The activity will not interfere with public access, as defined in Section 161.021, F.S.; and The construction will not cause a significant adverse impact to marine turtles, or the coastal system. Rule 62B-33.002(33) defines "impacts" for purposes of CCCL permitting: “Impacts” are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows: “Adverse Impacts” are impacts to the coastal system that may cause a measurable interference with the natural functioning of the coastal system. “Significant Adverse Impacts” are adverse impacts of such magnitude that they may: Alter the coastal system by: Measurably affecting the existing shoreline change rate; Significantly interfering with its ability to recover from a coastal storm; Disturbing topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure or the protective value of the dune system is significantly lowered; or Cause a take, as defined in Section 379.2413(1), F.S., unless the take is incidental pursuant to Section 379.2413(1)(f), F.S. “Minor Impacts” are impacts associated with construction which are not adverse impacts due to their magnitude or temporary nature. “Other Impacts” are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access. The proposed project involves the destruction of some native vegetation, but it will not destabilize the natural dune on the project site or cause a significant adverse impact to the beach and dune system. Removing vegetation can destabilize a dune because the vegetation prevents the loss of sand, primarily by wind erosion. However, in this case, the structure would block the wind and prevent the loss of sand. The more persuasive evidence shows that the amount of remaining vegetation, the additions of new sand and plantings, and other project conditions provide reasonable assurance that the dune would not be destabilized. This finding is further supported by the evidence that the portion of the dune that is on the Brown property has not been destabilized by the Brown project and is growing. The proposed project would not involve the removal or disturbance of in situ sandy soils to such a degree that a significant adverse impact to the beach and dune system would result. The total volume of sand associated with the dune upon which the house would be constructed would be increased by 20 cubic yards. Petitioners made much of the fact that the peak height of the natural dune on the project site would be reduced. However, Petitioners did not show this would change the functional or effective height of the dune. Common sense indicates that a dune with a peak that is over 8 feet high will not block an 8-foot storm surge if most of the dune is only 6 feet high. In this example, the effective height of the dune would be 6 feet, and an 8-foot storm surge would pass over the dune. The more persuasive evidence shows that the proposed project would not reduce the existing ability of the system to resist erosion and protect upland properties and structures. The proposed project would not direct discharges of water or other fluids in a seaward direction or in a manner that would result in significant adverse impacts. The proposed project would not result in the net excavation of the in situ sandy soils seaward of the control line. When the manmade dune is included, the proposed project would add about 129 cubic yards of sand to the project site. The proposed project would not cause an increase in structure-induced scour of such magnitude during a storm as to result in a significant adverse impact. The proposed project would minimize the potential for wind and waterborne missiles during a storm. The dwelling would be elevated above the 100-year storm surge to allow the waves to move under the structure and minimize structural damage. The proposed project would not interfere with public access. The proposed project would not interfere with marine turtle nesting. The permit contains conditions to assure that the proposed activities would not disturb nesting turtles or cause a significant adverse impact to marine turtles or the coastal system. Minmization of Impacts The expected impacts to the beach and dune system in this area are small. Hanson has minimized these potential impacts and provided mitigation so that no significant adverse impact would result. The proposed dwelling is smaller than the adjacent Brown house and would be located as far landward as the local government setback requirements will allow. Hanson would further minimize potential impacts to the beach-dune system by adding 129 cubic yards of sand to the project site and planting native, salt-tolerant vegetation. Frontal Dune The natural dune on the project site is not a frontal dune. Therefore, Petitioners' contention that the proposed project is not a sufficient distance landward of the beach and frontal dune to permit natural shoreline fluctuations and protect beach and dune system stability, is rejected. Line of Construction Existing structures in the immediate area have established a reasonably continuous and uniform construction line and these structures have not been unduly affected by erosion. The proposed project conforms to this existing line of construction and would not advance the line seaward. Cumulative Effects Petitioners contend that the cumulative effects of this proposed project and the adjacent Brown project would cause a significant adverse impact to the natural dune that crosses these properties. However, the more persuasive evidence shows that the portion of the dune on the Brown site remains stable and is even growing. Petitioners claimed that the Department acted inconsistently by treating the dune on the Brown property as "removed" by the Brown project, but treating the dune on the Hanson property as unaffected by Hanson's proposed project. However, neither Petitioners' Exhibit 17 nor any other evidence in the record establishes what changes, if any, occurred to the dune on the Brown property. It was not shown that part of the dune on the Brown property was physically removed. Furthermore, Petitioners did not show that, because the Brown project was on the dune, the Department determined that the affected portion of the dune was "removed" or ceased to function as a dune. There was no evidence presented of the existence of a coastal engineering principle that, when a structure is located on a dune, it is equivalent to removing the affected portion of the dune. Taken together, the effects of the proposed project and the Brown project would not significantly reduce the protective value of the dune. 30-Year Erosion Projection Before issuing a permit to construct major structures seaward of the CCCL, the Department is required to make a thirty-year erosion projection in the area. See § 161.053(6)(b), Fla. Stat. The 30-year erosion projection “is the projection of long-term shoreline recession occurring over a period of 30 years, based on shoreline change information obtained from historical measurements. See Fla. Admin. Code R. 62B-33.024(1). Generally, major structures seaward of the CCCL must be landward of the 30-year erosion projection. See § 161.053(5)(b), Fla. Stat. The proposed project is a major structure. The 30-year erosion projection in this area of Anna Maria Island was produced and recommended to the Department by Emmett Foster, an employee of the Beaches and Shores Resource Center at Florida State University. Mr. Foster was the principal author of the latest version of Rule 62B-33.024. Rule 62B-33.024(2) describes several procedures for determining the 30-year erosion projection, which can be used in combination. Mr. Foster's projection made use of the rule procedure that allows "credit" for beach nourishment projects. Mr. Foster assigned a 10-year credit to the nourishment project based on the history and performance of the nourishment projects in the area and the likelihood of continuing nourishments. His 30-year erosion projection is seaward of Hanson's proposed project. Petitioners disputed the procedure used by Mr. Foster. Their coastal engineer, Ms. Erickson, believes that a beach nourishment credit should not have been included in the analysis. Using an alternative procedure in the Rule 62B- 33.024, Ms. Erickson placed the 30-year erosion projection three feet landward of the most seaward edge of the proposed project (± 30 feet).4/ However, Petitioners failed to show that Mr. Foster's analysis was professionally unsound.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting the CCCL permit to Hanson. DONE AND ENTERED this 7th day of December, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2010.
The Issue The issue is whether, pursuant to Section 161.053, Florida Statutes, and Rule 62B-33.005, Florida Administrative Code, Petitioners are entitled to a coastal construction control line permit to build a single-family residence in Volusia County with a structural elevation of 19 feet National Geodetic Vertical Datum, not 24 feet National Geodetic Vertical Datum, as required by Respondent.
Findings Of Fact Petitioners own an undeveloped lot located at 4279 South Atlantic Avenue in the Wilbur-by-the-Sea subdivision in unincorporated Volusia County. Mr. Humphries' family has owned the lot for 50 years. The rectangular lot is 210 feet deep and 50 feet wide. The narrower end abuts the Atlantic Ocean on the east and South Atlantic Avenue on the west. The south boundary of Petitioners' lot abuts a developed lot. The house located on this lot has a finished- floor elevation of 26.15 feet National Geodetic Vertical Datum (NGVD). This is consistent with the structural elevations of most of the residences in the immediate vicinity of Petitioners' lot. Even though the seaward extent of Petitioner's proposed structure is roughly in a line with the seaward extent of the nearby homes, the issue in this case is the structural elevation. The north boundary of Petitioners' lot abuts the 50- foot-wide right-of-way of Major Street. In 1984, a wooden walkway was constructed in the southern half of the Major Street right-of-way to allow pedestrians access to the beach. By that time, Major Street was no longer open for vehicular access. However, the construction and maintenance of Major Street may have contributed to the lower elevations on the north boundary of Petitioners' lot, as described below. Nearly all of the lots in the vicinity of Petitioners' lot have been developed; most, if not all, of them contain single-family residences. Petitioners, who are nearing retirement, wish to construct a house that would accommodate them in their later years when they expect their mobility to be reduced. Petitioners' house will sit atop a prominent secondary dune, as do all of the other oceanfront homes in the immediate vicinity. The house will also be confined roughly to the landward half of the lot. These factors mean that the relatively short driveway leading from South Atlantic Avenue to the garage will be relatively steep. Petitioners proposed a reduction in the top of the dune to reduce the steepness of the driveway and the difference in finished-floor elevations between the garage and the house. Generally, the south side of Petitioners' lot is higher than the north side. The seasonal high water line is 8.4 feet NGVD. The lot's east boundary, which is 7-8 feet landward of the seasonal high water line, is about 11.5 feet NGVD. The elevation of the south boundary rises to 28.5 feet NGVD, at a distance slightly east of the most seaward extent of the 10-foot wooden deck that is the most seaward structure proposed by Petitioners. The elevation of the north boundary does not rise much; over the same distance, it reaches only 12 feet NGVD. Proceeding westward, toward South Atlantic Avenue, the south boundary drops from its 28.5-foot elevation. Parallel to the proposed house, the boundary remains at about 25 feet NGVD, except it drops to about 20 feet at the point where the house would meet the garage. For the length of the 26-foot garage, the south boundary drops to 18.5 feet NGVD. For the length of the 30-foot section of driveway between the garage and the west boundary, the south boundary drops from 18 feet NGVD to 17 feet NGVD. The north boundary rises to its highest point, 20.6 feet NGVD, at a point just landward of the point along the boundary closest to the junction between the proposed wood deck and the house. Running parallel to the proposed house, the north boundary drops to about 18 feet NGVD (directly across from a point along the south boundary that reaches about 25 feet NGVD) and then to about 17.5 feet NGVD, at a point just landward of the point closest to the junction of the proposed house and garage. The proposed house would occupy elevations, prior to proposed site preparation, of about 28 feet NGVD at the seaward side, 22-26 feet NGVD at the midpoint, and no more than 21 feet NGVD at the landward side. The proposed deck, house, and all but a sliver of the garage lie seaward of the coastal construction control line. The northeast corner of the proposed house is 72 feet seaward of the coastal construction control line. The dune is largely vegetated. The vegetation includes sea oats, shrubs, and some palm trees, although Brazilian pepper, a nuisance exotic, also vegetates part of the dune. Just seaward of the southeast corner of the proposed deck is a hole, perhaps from past excavation, about ten feet deep and occupying 8-10 percent of the lot. This is the only portion of the lot significantly below-grade. Overall, the dune is functional and healthy. To the extent that it has been disturbed in the past, the dune seems to be recovering vigorously. On or about July 21, 1999, Petitioners applied for a permit to construct a residence seaward of the coastal construction control line. In their application, Petitioners proposed a structural elevation of 19 feet NGVD. The structural elevation, which is about two feet lower than the finished-floor elevation, is the lowest portion of the effectively horizontal structural elements supporting the floors and walls of the structure. Respondent's examination of the application raised concerns about the proposed structural elevation of 19 feet NGVD. The greater elevation of much of the dune under the footprint of the house would necessitate the relocation of dune materials on the lot or removal of dune materials off the lot. However, discussions between Respondent's representative and Mr. Bullard, Petitioners' engineer, failed to identify design modifications upon which both sides could agree. Thus, on June 5, 2000, Respondent issued a Final Order and Notice to Proceed Withheld (Final Order). The Final Order states that Respondent found that Petitioners' application was complete on March 6, 2000. Although the Final Order generally contemplates that construction will eventually proceed, Special Permit Condition 1 prohibits construction until Respondent issued a written notice to proceed. Special Permit Condition 2 warns that Respondent will not issue a notice to proceed until Petitioners submit plans that raise the structural elevation to 24 feet NGVD, relocate all excavated materials seaward of the coastal construction control line (but not more than 120 feet seaward of the line), prohibit net excavation seaward of the coastal construction control line, and specify the planting of all filled or disturbed areas with salt-resistant native vegetation transplanted from onsite areas that will be excavated and other sources, as needed. Special Permit Condition 7 requires Petitioners to obtain the fill material from a source landward of the coastal construction control line. The fill material also must be of a sand that is similar to that onsite in terms of grain size and coloration. However, nothing in the Final Order specifies any requirement to replicate present--or design scientifically verified new--seaward and landward slopes of the portion of the impacted dune. In resisting Respondent's demand to raise the structural elevation, Petitioners have sought to reduce the slope of their driveway, which involves traffic-safety issues in turning on and off busy South Atlantic Avenue, and eliminate the need for an extensive design modification to allow wheelchair- bound persons access to the house from the garage. At the hearing, Petitioners offered mitigation in the form of an artificial dune to be constructed seaward of the residence with excavated materials. However, this proposal would destroy existing vegetation and failed to specify slopes, so that the artificial dune would likely suffer significant and rapid erosion. Petitioners have failed to prove that their proposed construction activities, with a structural elevation of 19 feet NGVD, would not adversely impact the most prominent dune landward of the ocean, so as to reduce the existing ability of this dune to resist erosion and protect upland persons and property.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing Petitioners' challenge and issuing the Final Order and Notice to Proceed Withheld dated June 5, 2000. DONE AND ENTERED this 7th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2001. COPIES FURNISHED: David P. Struhs, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Robert R. Bullard, P.E. Qualified Representative Absolute Engineering Group Post Office Box 269 Daytona Beach, Florida 32115 Francine M. Ffolkes Senior Assistant General Counsel Timothy E. Dennis Certified Legal Intern Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue for determination is whether the Town of Indian River Shores is entitled to a coastal construction control line permit to construct a beach access seaward of the coastal construction control line in Indian River Shores, Florida.
Findings Of Fact The Town of Indian River Shores (Town) is an incorporated municipality located on a five-mile stretch of the Atlantic Ocean in Indian River County, Florida. The Town has a population of approximately 2,700 residents. The Town's Public Safety Department has the combined functions of law enforcement, fire protection, and life support (lifesaving). All of the Officers of the Public Safety Department are cross-trained and cross-designated as police officers, firefighters, and emergency service specialists who are either paramedics or emergency medical technicians (EMTs). The Officers are on eight-hour shifts; each shift has approximately four to five Officers on duty, i.e., a police officer, a firefighter, a paramedic, and an EMT. When fully staffed, the Public Safety Department consists of 25 Officers. Because of the small number of Officers and their varied duties, restrictions and limitations are placed on their deployment. One of the vehicles used by the Public Safety Department in the performance of duties is an all terrain vehicle (ATV). The Public Safety Department has one ATV which is used on the beach for patrol and rescue purposes and for moving rescue and lifesaving equipment to and from the beach. In order to access the beach, the Public Safety Department must travel across the dune, primarily through private property (Corrigan Beach) located approximately 3.4 miles from the office of the Public Safety Department. The Town determined that this location was unsatisfactory for beach access due to the property being offered for sale, the great distance of the property from the Public Safety Department's office, and the dune being breached each time the ATV is taken onto the beach. The Town determined, however, that Beachcomber Lane, a public street within the Town, was the best choice for beach access and entry by the Public Safety Department. Beachcomber Lane is approximately 1,000 feet in total length and extends from Highway A1A to the bluff of the Atlantic Ocean. The Pubic Safety Department is located approximately 1,500 feet from Beachcomber Lane. The residents of Beachcomber Lane include Peter Broom, Jeremy R. Geffen, and Duane Jackson. At various times, the Public Safety Department has also used Beachcomber Lane as an access to the beach on emergency bases. Currently, a public raised wooden walkway, with steps, leads over the dune and onto the beach at the Atlantic Ocean end of Beachcomber Lane. In order for the Public Safety Department to obtain beach access by way of Beachcomber Lane, an access ramp will have to be constructed seaward of the coastal construction control line (CCCL). Such construction requires, among other things, a permit from the Department of Environmental Protection (DEP). To design and present the plan to the DEP for a proposed beach access by way of Beachcomber Lane, the Town obtained the services of Coastal Technology Corporation (Coastal Technology), an engineering firm. On July 24, 1996, Coastal Technology filed an application on behalf of the Town with the DEP for a permit to construct a beach access ramp seaward of the CCCL. The application process included the submission of detailed drawings and other documents required by DEP. In the application, Coastal Technology described the construction, in pertinent part, as follows: 6. The proposed work consists of the removal of Brazilian Pepper . . . and installation of a 100 foot (approximate) long, 10 foot wide stabilized emergency access ramp. To minimize the impact to the existing native vegetation, the proposed emergency access ramp will be located approximately 8 feet from the north Right-of-Way within the area of the existing Brazilian Peppers. . . . A 2-inch layer of washed concrete sand will be placed between the limestone and paver blocks for a proper leveling of the previous paver blocks. The paver blocks will be TURFSTONE . . . which . . . have been permitted by DEP at other locations. . . . The openings in the TURFSTONE will be filled with excavated beach sand from the proposed access ramp footprint. Any remaining sand . . . will be placed at the seaward end of the proposed access ramp. To mitigate for any potential impact to native vegetation, 6 sea grapes will be installed . . . and any sea oats removed during excavation will be kept alive and replanted within those areas void of sea oats. Three 6-inch by 6-inch pressure treated posts will be installed with a chain fence. A locking chain fence will be used to prohibit the general public from accessing the beach through the emergency access ramp. In the application, Coastal Technology presented the justification for the construction, in pertinent part, as follows: 7. The proposed access ramp at Beachcomber Lane is specifically for the use by the Town of Indian River Shores for emergency access to the beach. The access ramp will have a locking chain only accessible by the Public Safety Department and has been designed to accommodate four-wheel drive patrol and EMT vehicles. . . . Beachcomber Land [sic] site was chosen by the Town because of : 1) the relative stability of the shoreline at that location; and, [sic] 2) accessibility from the Indian River Shores Town Hall which is on the west side of A1A across from Beachcomber Lane. The application indicated that the proposed beach access ramp was being constructed for emergency access to the beach. However, prior to the filing of the application, both emergency and routine patrol access by the Public Safety Department were discussed as uses for the access ramp at public meetings by the Town's public officials in which the subject of the access ramp was brought up. Such use for the beach access ramp was contemplated by the Town from the very inception of the plan for the access ramp. Routine patrol is defined by the Public Safety Department to be patrolling approximately every other day for one or two hours. By notice dated August 7, 1996, the DEP requested public comment on the Town's application for the CCCL permit. By letter dated August 21, 1996, residents of Beachcomber Lane, including Mr. Broom, Mr. Geffen, and Mr. Jackson, provided the DEP with their comments on the Town's application. On September 3, 1996, the Town's application for the CCCL permit was considered complete by the DEP. On November 6, 1996, at the request of DEP, the Town conducted a public meeting to obtain public comments regarding the proposed beach access ramp. The residents of Beachcomber Lane were notified of the public meeting, and among the residents attending the meeting were Mr. Broom, Mr. Geffen, and Mr. Jackson. At the public meeting, the Town clearly stated that the proposed beach access ramp would be used by the Public Safety Department for both emergency and routine patrol purposes with the ATV. Also, the Director of the Public Safety Department indicated that, based upon information collected regarding criminal activity and suspected criminal activity along the beach, routine patrol was needed.2 The application process culminated in the issuance of a Final Order by the DEP on November 27, 1996, granting the CCCL permit, with special permitting conditions in addition to the standard conditions. The CCCL permit granted by the DEP was Permit No. IR-507. The proposed beach access ramp to be constructed is approximately 100 feet in length and 10 feet in width. The construction will utilize turf blocks which permit grass and foliage to grow through the blocks on the access-way. A provision of the DEP Final Order requires the removal of exotic plants (Brazilian Pepper), which are not native plants, and the replanting of native vegetation adjacent to the access-way. On December 6, 1996, public notice of DEP's issuance of the CCCL permit to the Town was published in the Town's local newspaper. The Town agrees to abide by the special conditions, as well as the standard conditions, to the issuance of the CCCL permit. The beach access ramp on Beachcomber Lane will be used by the Town's Public Safety Department for public service purposes, including emergency rescue, training, and routine patrol. Beachcomber Lane is the appropriate location for the beach access ramp. The DEP has determined that the construction of the beach access ramp meets all the requirements of the DEP for the issuance of the CCCL permit. The DEP has determined the proposed beach access ramp to be a minor structure. The construction of the proposed beach access ramp will cause no significant adverse impact or cumulative impact on the beach dune system. The design of the proposed beach access, with the conditions added by the DEP, minimizes adverse impact of the access ramp. Native vegetation will be maintained and replenished around the proposed beach access ramp. The proposed construction of the beach access ramp will not result in a significant adverse impact to the beach and dune system. No net excavation in the sandy soils seaward of the control line will result from the construction. No structurally induced scour will result from the construction because the proposed structure is designed to break- away during a storm. The potential for wind and waterborne missiles during a storm is minimized by the construction. Public access to the beach is not interfered with by the beach access ramp. The construction of the beach access ramp will occur in a nesting habitat of the marine turtle, i.e., loggerhead, leatherback and green turtle. The DEP addressed protection of the nesting area through one of its special conditions to the issuance of the CCCL permit. The special condition included "no construction, operation, transportation or storage of equipment or materials seaward of the dune crest during the marine turtle nesting season" which is March 1 through October 31 of each year. With this special condition, the construction, itself, will have no adverse impact on the marine turtle or the turtle nesting. The Town agrees to abide by this special condition.3 The access ramp, itself, will have minimal impact on the marine turtles and will not cause a "take" of the turtles. Furthermore, the use of the ATV by the Public Safety Department will have no adverse impact on the marine turtles or the turtle nesting. At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Town of Indian River Shores the Coastal Construction Control Line Permit No. IR-507, with the special conditions as may be required by the Department for the protection of marine turtles. DONE AND ENTERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1997.
Findings Of Fact The subject property Petitioners, Michael and Janice Rush, are the owners of a single family residence located at 3032 North Atlantic Boulevard, Fort Lauderdale, Broward County, Florida. Such residence lies seaward of the Broward County Coastal Construction Control Line (CCCL) and is therefore subject to the permitting jurisdiction of respondent, Department of Natural Resources (Department). Section 161.053, Florida Statutes. The first application In April 1991, Petitioners filed a permit application (Permit File No. BO-267) with the Department for permission to renovate their home and construct a swimming pool. That application was found to be incomplete, and by letter of April 17, 1991, the Department notified petitioners of the information required to complete their application. Following receipt and review of the requested information, the Department, by letter of July 26, 1991, advised petitioners that, as proposed, their application to construct a pool and renovate the home would have to be denied. Pertinent to the proposed pool, such letter observed that a portion of the pool would be located seaward of the 30-year erosion projection which is prohibited 1/, the general construction line of major structures would be advanced further seaward, adverse impacts to the beach/dune system during a major storm event could be expected, and cumulative adverse impacts could be expected. Thereafter, by letter of August 14, 1991, the Department was advised that petitioners were submitting new house plans for the subject property, and that the request for leave to construct the pool had been removed from their application. 2/ On December 23, 1991, the Department issued a final order in Permit File No. BO-267 which authorized the petitioners to remodel their home. Such final order observed: . . . The direct and cumulative impacts to the beach and dune system that will be caused by both the seaward location and shore- parallel width of the proposed construction represent the maximum such impacts that are acceptable to the Department. Therefore, future construction on the site seaward of the coastal construction control line shall not extend further seaward of, or increase the shore- parallel coverage occupied by, the proposed structures approved pursuant to this permit. The pool, which petitioners had initially proposed to construct seaward of the home, but subsequently deleted from their plans, constituted a major structure, albeit nonhabitable. Rule 16B-33.002(54)(b), Florida Administrative Code. Petitioners were expressly advised by the Department of their right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, to contest the provisions of the final order. No such contest was filed. 3/ The pending application On February 20, 1992, petitioners filed a new application (Permit File NO. BO-289) with the Department for permission to construct the swimming pool on their property. As proposed, the pool would be located in the beach-dune system seaward of petitioners' home, as well as seaward of an existing retaining wall on the petitioners' property. The pool would measure 16.0' x 35.7' externally, be constructed of reinforced gunite, and be supported by ten piles. The alignment of the pool would be in the shore parallel direction, rather than the shore normal direction as proposed in the prior application, thereby placing the pool landward of the 30-year erosion projection. By letter of March 8, 1992, the Department advised petitioners that their application was incomplete, and requested additional information. Petitioners submitted the final information necessary to complete their application on July 21, 1992. By letter dated October 7, 1992, received by petitioners' representative on October 13, 1992, the Department issued a public notice as follows: The referenced application for a permit pursuant to Section 161.053, Florida Statutes, has been placed on the agenda of the head of the Department of Natural Resources (Governor and Cabinet). The application will be reviewed by the Cabinet Aides in the Cabinet Meeting Room on the lower level of the Capitol, at 9:00 a.m., October 14, 1992. The application will then be heard by the Governor and Cabinet in Room LL03 of the Capitol, at 9:00 a.m., October 20, 1992. You may attend these meetings if you desire. The recommendation [for denial] shown on the enclosed agenda item has been made to the head of the Department by the Executive Director. This represents an agency determination. . . . The notice, consistent with the provisions of Rule 16B-33.012(8), Florida Administrative Code, further advised that any substantially affected person had the right to request a formal hearing, pursuant to Section 120.57, Florida Statutes, within 21 days of receipt of the notice, and that "If the decision of the Governor and Cabinet is different from the staff recommendation as noticed . . ., then the applicant or any substantially affected person shall have 21 days from the date of the Governor and Cabinet's announcement of their decision in which to petition the agency for a hearing." The basis for the Department's denial of petitioners' application to construct the swimming pool was stated as follows: The proposed swimming pool is not consistent with Rule 16B-33.005(1), Florida Administrative Code, because it has not been clearly justified by the applicant and less impactive alternatives are available. For example a similar structure could be sited in a less impactive location landward of the single-family dwelling on the southwest corner of the property. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(a), Florida Administrative Code, for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(c), Florida Administrative Code, for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties. The proposed swimming pool is inconsistent with Paragraph 161.053(5)(b), Florida Statutes, because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area. The proposed swimming pool is inconsistent with Rule 16B-33.007(1), Florida Administrative Code, because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shore line fluctuations and to preserve dune stability and natural recovery following storm-induced erosion. The proposed swimming pool is not designed pursuant to Rule 16B-33.007(2), Florida Administrative Code, to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system. * * * 8. The proposed project is not designed pursuant to Rule 16B-33.005(7), Florida Administrative Code, because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event. The Department, therefore, may not authorize the construction of the pool. On October 13, 1992, petitioners requested that their application be removed from the agenda, and be rescheduled for "a later date to be determined." The rationale for petitioners' request was to afford "an opportunity for the permittee and staff to meet in Tallahassee in early to mid November and reach a design for a pool which can be recommended favorably by staff." By letter of October 14, 1992, the Department granted petitioners' request and the item was removed from the agenda for the Governor and Cabinet meeting of October 20, 1992. Such letter further provided that although the Department was willing to meet with petitioners to discuss the staff concerns about their application, that it "must caution you . . . that at this time I do not anticipate that a swimming pool, as you requested, can be satisfactory [sic] located seaward of your home." Petitioners and the Department were unable to resolve their dispute. Accordingly, petitioners filed a petition on November 2, 1992, to contest the proposed denial of their application. By letter of November 13, 1992, the Department advised petitioners that their request for formal administrative hearing was inadequate, but accorded them 14 days from receipt of such letter to submit an appropriate request. Petitioners timely submitted an appropriate request for hearing on November 30, 1992, and the matter was thereafter referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. 4/ The merits of the pending application As heretofore noted in the findings of fact, the Department enunciated seven reasons to support its denial of petitioner's application. The first basis for denial was the Department's assertion that the proposed swimming pool was not consistent with Rule 16B-33.005(1), Florida Administrative Code, "because it has not been clearly justified by the applicant and less impactive alternatives are available." In this regard, it is observed that Rule 16B-33.005(1), Florida Administrative Code, provides: . . . Establishment of a coastal construction control line . . . does not preclude all development of or alteration of coastal property seaward of such lines. However, activities seaward of a coastal construction control line . . . shall be limited and the necessity of such development, construction or alteration shall be stated and clearly justified by the applicant. (Emphasis supplied) The aforesaid rule does not further explain what is contemplated by the requirement that the applicant clearly justify the "necessity" of the proposed development; however, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary. 5/ In this regard, "necessity" is defined to mean "something that cannot be done without." Websters New Twentieth Century Dictionary. It is also defined as "something needed for the existence, effectiveness, or success of something (a requirement)," and "the state or fact of being required or unavoidable." The American Heritage Dictionary of the English Language. Here, the proof fails to demonstrate any "necessity" to construct the swimming pool since it fails to credibly support the conclusion that such construction is required for the effective or reasonable use of petitioners' property or that such construction is essential for the well-being of its occupants.6/ To the contrary, the petitioners' decision to construct the pool is merely a matter of personal preference or convenience. Moreover, the proof fails to demonstrate any "necessity" to construct a pool of the size and configuration proposed (16' x 35.7' with a maximum depth of 8') or of the materials selected (reinforced gunite supported by piles). Indeed, a pool of a different configuration or size could be located elsewhere on the property and the pool could be constructed on a base slab foundation or of vinyl to alleviate the adverse effects of its current design, discussed infra. 7/ As further reasons for denial, the Department concluded that construction of the swimming pool was not consistent with Rule 16B-33.005(2)(a), Florida Administrative Code, "for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade"; Rule 16B-33.005(2)(c), Florida Administrative Code, "for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties"; Rule 16B- 33.007(1), Florida Administrative Code, "because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shoreline fluctuations and to preserve dune stability and natural recovery following storm-induced erosion"; and Rule 16B-33.007(2), Florida Administrative Code, "to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system." Pertinent to the aforesaid reasons for denial, Rule 16B-33.005(2), Florida Administrative Code, the "Department Policy Statement on Permits," provides: Seaward of the coastal construction control line . . ., special siting, structural and other design considerations are required: (a) for the protection of the beach-dune system; * * * (c) for the protection of adjacent properties. And, Rule 16B-33.007, Florida Administrative Code, the "Structural and Other Requirements Necessary for Permit Approval," provides: The proposed structure or other activity shall be located a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and natural recovery following storm induced erosion . . . . All structures shall be designed so as to minimize any expected adverse impact on the beach-dune system or adjacent properties and structures and shall be designed consistent with Section 16B-33.005, Florida Administrative Code. Relevant to such rules, the proof demonstrates that the frontal dune on the subject property appears to have been leveled at an elevation of approximately +12.0 feet NGVD, and petitioners' home is located on top of the crest of the frontal dune. The seaward slope of the frontal dune begins at the seaward face of the house and slopes down to the beach. Approximately 12 feet seaward of the house is an existing retaining wall. The proposed pool will be sited immediately seaward of such wall and therefore on the seaward slope of the frontal dune. The proposed pool is a pile supported concrete swimming pool with exterior dimensions of 16.0' shore-normal by 35.7' shore-parallel, and a maximum depth of 8.0'. The foundation is specified to be auger-cast piles, which will penetrate to an elevation of -23.0' NGVD or 3' embedment where a rock layer is encountered. The elevation of the pool is proposed at +13.0' NGVD, with a bottom elevation of +4.0' NGVD. As designed and sited, construction of the pool would destabilize the dune, hinder its function of protecting upland development during a storm event, and adversely affect natural shoreline fluctuation and recovery following storm induced erosion. In this regard, the proof demonstrates that the location of the pool seaward of the existing retaining wall would interrupt the natural continuity of dune formation because sand would accumulate seaward of the pool in a less stable location and would impede the accumulation of sand on adjacent properties. Construction of the pool, as designed and sited, would also induce scour during the course of a storm event impacting the structure. Such storm- induced scour, in addition to erosion, would cause the loss of additional sand at the vicinity of the structure, robbing the beach-dune system of additional sand necessary to protect upland structures, and would also contribute to the potential failure of the structure itself and other upland structures. In this regard, the proof demonstrates that approximately 1,000 cubic yards of sand would be lost on petitioners' section of the beach in the event of a 10-year storm. Additionally, structure-induced scour of 77.5 cubic yards from the ten piles, 120.4 cubic yards from the pool shell, and 15.8 cubic yards from the "end effects" of the pool (the amount of structure-induced scour from the ends of the structure) might reasonably be anticipated in the event of a 10-year storm. If the pool were to be impacted by a higher frequency storm, such as a 20-year or a 100-year storm, scour and erosion would increase. 8/ As an additional basis for denial, the Department concluded that construction of the pool was not consistent with Section 161.053(5)(b), Florida Statutes, "because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area." Here, the proof supports the Department's conclusion. As its final basis for denial, the Department concluded that construction of the pool was not consistent with Rule 16B-33.005(7), Florida Administrative Code, "because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event." Pertinent to the aforesaid basis for denial, Rule 16B-33.005(7), Florida Administrative Code, provides: An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site; however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event . . . . Here, petitioners' project is expected to have significant adverse impacts to the beach-dune system as a consequence of its design and siting. Accordingly, the provisions of Rule 16B-33.005(7), Florida Administrative Code, are not relevant. Moreover, there was no proof concerning any similar structures along the coast, existing or proposed, that would contribute to or intensify the degradation of the beach-dune system occasioned by the proposed project. Accordingly, it cannot be concluded that cumulative impact is a relevant issue in these proceedings. While cumulative impact is not relevant to the pending application, the other reasons advanced by the Department for denial of the application have, as heretofore found, a rational basis in fact. Under such circumstances, petitioners have failed to demonstrate their entitlement to the subject permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioners' application to construct seaward of the CCCL. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November 1993.
The Issue The issues to be resolved in this proceeding concern whether the Department of Environmental Protection (DEP) has jurisdiction over the activities encompassed by Permit Application BA-475 (Amended) and, if so, whether issuance of the permit complies with the applicable provisions of Section 161.053, Florida Statutes, and Chapter 62B-33, Florida Administrative Code.
Findings Of Fact Undisputed Facts: The following relevant facts are established by stipulation or admission and are not disputed. The proposed project is landward of the seasonal high waterline within thirty (30) years of December 1996; The project will not interfere with public access; The project will not result in the net excavation of in situ sandy soils seaward of the coastal construction control line (CCCL); Any sandy soil or material excavated for the proposed project seaward of the control line will remain seaward of the control line or setback and be placed in the immediate area of construction; The proposed project complies with the structural provisions of Rule 62B-33.007(2), Florida Administrative Code; The proposed project complies with Rules 62B-33.007(3)(a) through (d) and (f) through (h), Florida Administrative Code. Additionally at hearing, the Petitioners and Intervenor announced that they would not present any evidence on the issue of adverse impacts on marine turtles. Accordingly, impacts on marine turtles are not at issue in this proceeding. Project Description: RHE has proposed constructing a restaurant, pool, deck and stormwater basin within the Boardwalk Beach Resort on Panama City Beach, in Bay County, Florida. The Boardwalk Beach Resort consists of four (4) multi-story hotels with six hundred (600) rooms all together, several pools, boardwalks extending the length of the property and approximately seventeen hundred (1,700) to eighteen hundred (1,800) feet of beach front property. The project site is between Thomas Drive to the north and the Gulf of Mexico to the south. On July 23, 1996, RHE applied to the Department for a CCCL permit to construct, seaward of the interim line established by the emergency Order of October 16, 1995, the restaurant, swimming pool and deck. Part of the proposed deck was located seaward of the coastal construction setback line. On December 9, 1996, the Department issued a permit to RHE to construct the restaurant building with an attached deck fifteen (15) feet landward of the location originally proposed by RHE, as well as for construction of the swimming pool. On December 16, 1996, the Department issued to RHE an Amended CCCL permit authorizing construction of a restaurant building located five (5) feet landward of the location originally proposed by RHE, as well as a deck re-designed so that it would be structurally independent of the restaurant, a swimming pool and a dune enhancement plan which would restore the sandy dune seaward of the pool and restaurant location to its pre-hurricane Opal condition and elevation. The Amended permit would require re-vegetation of the dunes at the site with native plants to secure the dunes from erosion. Both the original and the Amended permits authorized the removal of the stormwater drainage pipe that carried stormwater onto the beach that had caused erosion of the beach near the project area. On January 9, 1997, the Petitioners timely filed a Petition challenging the Department’s decision to issue the Amended permit. On February 7, 1997, the Department established a new CCCL line for Bay County that was farther landward than either the old coastal construction setback line or the interim line established in the October 1995 emergency order. The project authorized by the Amended permit would thus be located entirely seaward of the newly established CCCL for Bay County. As of February 7, 1997, the date the new line was established, RHE had not begun working on the foundation or continued construction above the foundation for any of the structures authorized by the Amended permit. The Department determined that the project did not meet the requirements of Section 161.053(9), and Rule 62B-33.004(1), Florida Administrative Code, so as to qualify for an exemption from complying with the newly established CCCL for Bay County, as the project was not “under construction” at the time the new CCCL was established. The beach and dunes system is wide and the dune system is a significant one, with elevations of fourteen (14) to sixteen (16) feet NGVD, with a wide dune crest. The dry sandy beach in front of the site, even after hurricane Opal struck, remained approximately one hundred twenty-five (125) feet wide. From 1855 to 1934 the shoreline of the site was mildly accretional. Thereafter, until 1955 accretion was less significant, but from 1955 to 1976 became significant. From February 1992 through April 1995, the project site experienced a period of mild erosion. Accordingly the long-term data shows, in essence, that the shoreline is relatively stable at the site. Hurricane Opal caused the dune to erode or retreat landward by approximately a distance of fifteen (15) feet. Hurricane Opal was a major magnitude storm with one hundred twenty-five (125) mile per hour sustained winds and one hundred forty-four (144) mile per hour measured gusts when it came ashore in the vicinity of the proposed site. The dune portion of the proposed site now essentially mimics the pre-Opal conditions. Following hurricane Opal the applicants spent approximately Four Hundred Thousand Dollars ($400,000.00) in dune restoration along the entire shoreline of the resort property, some seventeen hundred (1,700) to eighteen hundred (1,800) feet of shoreline. That dune restoration work was permitted by the Department. There is now little native salt-tolerant vegetation on the site in its natural pre-construction condition. An existing stormwater drainage pipe and catch basin extend onto the beach seaward of the location of the proposed restaurant. The existing pipe and basin have caused erosion of the beach and the sand dune system on the project site. Under the amended permit proposal the stormwater pipe and basin would be removed. All of the proposed structures authorized by the Amended permit would be landward of the pre-Opal coastal construction control line. The proposed pool will be located landward of the dune crest and fifty-five (55) feet landward of the toe of the dune. The proposed restaurant would also be located landward of the dune crest and two hundred five (205) feet landward of the mean high waterline. The original design of the project was for a much larger, three story restaurant. The original pool design called for a one hundred twenty foot pool extending from in front of the Comfort Inn to beneath the proposed restaurant, in effect being located on the first floor of the restaurant. At DEP’s request the size of the pool was reduced by fifty percent (50%) and it was relocated into the shadow of the Comfort Inn next door so that it will no longer serve as an integral part of the restaurant. Pool depths were also reduced to three (3) feet at DEP’s request. The pool, at DEP’s request, will now be constructed of Gunnite concrete material and will be frangible, that is, it will be designed to break up in storm-surge or storm-waves. This will serve to decrease the erosion which could be caused by storm-waves flowing over and around the pool structure. The same is true of the restaurant deck, which at DEP’s request has been re-designed to be separate from the restaurant and also designed to fail in storm conditions. The frangibility of the deck, as now proposed, will retard erosion during storm conditions, as the stormwater or waves will demolish the deck and remove it rather than scouring the sand dune around it. The Department also requested that the existing stormwater drain pipe and catch basin be removed and such a removal has been made a condition of the subject permit. This will require that the applicant design and build a new stormwater system. The applicant has agreed to this condition and the others referenced above. Vegetation: Construction of the proposed project will not result in the removal or destruction of native vegetation. There is no such vegetation on the site where the construction will take place. Thus, construction of the project will not result in removal or destruction of native vegetation which will either cause de-stabilization of a "frontal, primary or significant dune" or cause a significant adverse impact to the beach and dune system due to increased erosion by wind or water. A special condition of the proposed amended permit requires that the applicant submit a dune enhancement plan for restoration of the dunes seaward of the pool and restaurant to its pre-hurricane Opal condition, including re-vegetation. Such a plan was submitted by the applicant and it includes the planting of sea oats on one (1) foot centers. The planting of sea oats as part of the dune enhancement plan will constitute a significant improvement to the native vegetation situation at the site. Disturbance of Sandy Soils: The project will not result in the removal or disturbance of in situ sandy soils of the beach and dunes system to such a degree as to have an adverse impact on the system. That is, the existing ability of the system to resist erosion during a storm will not be reduced. The proposed project will not result in the removal or disturbance of in situ sandy soils of the beach and dune system to such a degree as to cause adverse impact to those systems by lowering existing levels of storm protection to upland properties and structures. All the sandy material excavated for the pool and the stormwater basin will be placed seaward of these structures on the dune in the immediate area of the construction and seaward of the CCCL. The additional sand to be placed on the dune as part of the dune enhancement plan will, in fact, enhance the ability of the system to resist erosion during the storm. The ability of the dune to resist storm erosion is primarily a function of the quantity of sand within the dune system. The additional sand to be placed on the dune as part of the dune enhancement plan will enhance the protection of upland properties and structures including those of the Petitioners and Intervenor. Excavation of the stormwater basin will not destabilize the dune on the project site. The applicant is moving the stormwater basin landward by twenty (20) feet which will minimize the potential impacts of the basin on the dune system. The preponderant evidence establishes that the structure of the pool and pool deck will not cause an increase in structure-induced scour of such a magnitude as to measurably affect shoreline change rates. Scour caused by the pool will not significantly interfere with the beach-dune system's ability to recover from a coastal storm. The frangible design of the pool decreases the likelihood that it will cause any scour. It will break up in a storm so that any scour caused by the pool would be minimal. Any scour caused by the pool would not disturb the topography or vegetation such that the coastal system would become unstable or suffer catastrophic failure. Scour would have no measurable effect. The proposed restaurant and deck will not cause an increase in structure-induced scouring during a storm of such a magnitude as to have a significant adverse impact. The restaurant and deck will be constructed on piles. Scouring around piles, in a storm situation, is very localized and insignificant. By constructing the restaurant and deck on piles at the design elevation, storm-surge and storm-waves will pass under the deck and restaurant. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune to permit natural shoreline fluctuations. The structures will be built on pilings and will be elevated above the storm-surge; thus they will not interfere with shoreline fluctuations. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to preserve and protect beach and dune system stability, in terms of the lack of interference with such. Other structures in the area are seaward of the proposed restaurant and deck, including Pineapple Willies Restaurant, located eleven hundred feet to the west. Those structures have not caused instability of the beach during hurricane Opal. Typically, existing structures do not cause instability of the dune systems. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to allow for natural recovery to occur following storm-induced erosion. Natural recovery commonly occurs under pile-supported elevated structures which is not the case with “slab-on-grade” structures which are not elevated. The pool and pool deck will permit natural shoreline fluctuations, will preserve and protect beach and dune stability, and will allow recovery after a storm because they are designed as frangible structures that will fail and disintegrate in a storm situation. Thus they will not appreciably affect the beach-dune system. Line of Construction: Most coastal construction in Bay County extends out to the pre-Opal CCCL while some construction extends beyond it. Throughout Bay County the line of construction is the pre-Opal CCCL. The line of construction is determined by the most seaward extent of similar existing structures in the immediate area of the proposed structure under consideration in a CCCL permit application. The proposed pool is landward of the line of construction determined by existing pools within the boardwalk beach resort. There are a number of existing multi-story structures to the east of the proposed restaurant that are located out to the pre-Opal CCCL. That pattern of construction continues to the east of the proposed restaurant. Approximately one thousand (1,000) feet to the east of the proposed restaurant is an existing multi-story major structure that is built out to the pre-Opal CCCL. The beach in the area of the project is highly developed with commercial and condominium buildings. Within eleven hundred to twelve hundred feet to the west of the proposed restaurant there is another major structure built out to the pre-Opal CCCL. Just beyond that structure are a number of additional major structures, including Pineapple Willie's Restaurant, that are constructed out to the pre-Opal CCCL. The multi-story major structures to the east and west of the proposed structure are within the immediate area of the restaurant. The proposed restaurant is located landward of the line of construction established by these major structures within its immediate area. That line of construction is the pre-Opal CCCL. DEP did not consider major structures more than one thousand (1,000) feet from the proposed restaurant when it determined the line of construction for the restaurant. It is DEP’s policy when reviewing CCCL applications not to consider structures more than one thousand (1,000) feet from a proposed structure when determining the line of construction. The one thousand (1,000) foot limit DEP uses to determine the line of construction is not embodied in a rule. There was no preponderant coastal engineering or other scientific evidence which justifies the one thousand (1,000) foot limit DEP imposes when it determines the line of construction. It was appropriate to consider the existing structures referenced above in assessing the line of construction for this amended permit application and considering those lying just beyond the one thousand (1,000) foot distance, because those existing structures dominate the coastal processees in the region and only lie just beyond one thousand (1,000) feet to the east and twelve hundred (1,200) feet to the west. If the Department had considered the above-referenced existing major structures just beyond one thousand (1,000) feet of the proposed restaurant, it would have been shown that the proposed project was landward of the thus established line of construction. No preponderant evidence was offered to explicate why the one thousand (1,000) foot limit was automatically adhered to in this situation. Moreover, the line of construction is not a prohibition in and of itself but rather is only one of several criteria that must be balanced in determining whether or not to approve a CCCL permit application. Projects have been approved seaward of the line of construction in the past. Minimization The location of the swimming pool at the most practicable landward location, the reduced size of the pool, as well as its frangible design and limited depth, has minimized its impact. The placing of the excavated material in the pool’s immediate area and the restoration of the dune in front of the pool and deck have minimized the impacts of the pool and deck. The construction of the restaurant on pilings with its design elevation above storm-surge and storm-wave elevations, together with locating it behind the dune crest and away from the active beach, has minimized the impact of the restaurant. The deck is on pilings as well, elevated above storm-surge and storm-wave levels. It will be physically separate from the restaurant and its design frangibility (so that it will fail in a storm) results in its impact being minimized. The stormwater basin is located as far landward as practicable. Its location and the placing of the materials excavated for the basin on the dune immediately adjacent to the basin has minimized the impact of the proposed stormwater basin on the beach-dune system. The restaurant, pool, deck, and stormwater system will not have a significant adverse impact to the beach-dune system. The restaurant will not adversely affect exiting shoreline change rates, will not significantly interfere with recovery following a storm, and will not disturb topography or vegetation such that the system will become unstable or suffer catastrophic failure. Cumulative Impacts The proposed project will not have an unacceptable cumulative impact. There are no other proposed similar projects to take into account and a cumulative impact assessment has shown there to be no adverse cumulative impact. No evidence was offered to show that an unacceptable adverse cumulative impact in terms of existing or other proposed projects will result. Positive Benefit The proposed project will have a net positive benefit on the beach-dune system. The removal of the slab-on-grade constructed building will have a beneficial impact because it will reduce the chance of storm erosion to the beach-dune system posed by such structures. The existing stormwater pipe and catch basin which cause erosion would be removed, resolving that erosion problem. Stormwater will now be retained in a new stormwater basin designed to serve 1.7 acres and it will not flow onto the beach for any rainfall event up to a one hundred year design storm. The new stormwater system is designed to recover quickly after a storm event and to treat stormwater. The removal of the stormwater pipe and catch basin, and the installation of the new stormwater basin will have a positive benefit to the beach-dune system. The new stormwater system complies with Special Permit Condition 7. Moreover the applicant will restore the dune seaward of the project to its pre-hurricane Opal condition and will plant sea oats, on one foot centers, throughout the restoration area in accordance with Special Permit Condition 1.8. Such restoration of the dune and vegetation will benefit the beach-dune system. The natural recovery process will take several decades without the placement of sand in the dune restoration project. The dune enhancement plan submitted by the applicant, in order to comply with Special Permit Condition 1.8, exceeds the requirements of that condition since it places more sand on the dunes than necessary to achieve pre-Opal conditions. Testimony of expert witness Michael Walhter, which is accepted, establishes that restored beaches and dunes function much like natural ones in storm events even though they can be somewhat inferior in resistance to storm-surge and waves since the sand is not as compacted at first. This dune enhancement plan, however, exceeds the permit requirements by placing more sand than necessary on the dunes to achieve pre-Opal conditions. The Interim CCCL On October 16, 1995, the DEP issued its emergency Order establishing an interim CCCL for Bay County one hundred feet landward of the pre-Opal CCCL. The Department established that interim line in order to regulate coastal development in the wake of Hurricane Opal. In 1978 the Legislature established criteria to be used by DEP in establishing or re-establishing all CCCL’s. They are thus to be established to define that portion of a beach-dune system subject to severe fluctuations from a one hundred year storm event. At the time of Hurricane Opal, DEP had not re-established the Bay County CCCL using a one hundred year storm event criterion. The interim CCCL for Bay County established by the above-referenced emergency Order did not utilize nor was it based on the statutory one hundred year storm event criterion. All twenty-three (23) other CCCL’s that have been established based on the statutory one hundred year storm event criterion were established by rule. As of January 15, 1997, the applicant had received all governmental approvals necessary to begin construction of the proposed project except for that which is the subject of this proceeding. On January 22, 1997, DEP by letter advised the applicant to cease and desist construction of the project. On February 7, 1997, the Department by rule then taking effect established a new CCCL.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, DETERMINED: That the Department of Environmental Protection has jurisdiction over the proposed project and that it is, therefore, recommended that a Final Order be entered granting the Respondent, Resort Hospitality’s CCCL application consistent with the terms and conditions espoused by the Final Order of December 17, 1997, Respondent’s Exhibit 2 and the project plans depicted in Respondent’s Exhibits 3 and 4. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Bram D. Canter, Esquire 103 North Meridian Street Tallahassee, Florida 32301 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire 1315 East Lafayette Street, Suite B Tallahassee, Florida 32301 Neil H. Butler, Esquire Butler and Long, P.A. Post Office Box 839 Tallahassee, Florida 32302-0839 Kathy Carter, Agency Clerk Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issues for determination at final hearing were (1) whether Petitioner's coastal construction Permit No. 86-155PB, authorizing Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Palm Beach County, Florida, should be extended under Special Permit Condition 10 of the Permit and (2) whether the experimental reef structure should be removed pursuant to Special Permit Conditions 3 and 12 of the Permit.
Findings Of Fact On April 6, 1987, American Coastal Engineering, on behalf of Willis H. DuPont (Petitioner) and Florida Atlantic University's Department of Ocean Engineering, was granted coastal construction Permit NO. 86-155PB 3/ (Permit) by the Department of Natural Resources (Respondent). 4/ The Permit authorized Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Florida. The experimental reef structure, referred to as a prefabricated erosion prevention reef (PEP reef), is a 550 foot submerged breakwater which was constructed using prefabricated concrete segments, placed end-to-end underwater in the nearshore area. The purpose of the PEP reef is to reduce erosion of the beach landward of the structure. The PEP reef was installed on May 5, 1988. Special conditions were placed on the Permit, to which Petitioner agreed. The special conditions in pertinent part provide: The permittee shall adjust, alter or remove any structure or other physical evidence of the work or activity permitted, as directed by the Executive Director, if in the opinion of the Executive Director, the structure, work or activity in question results in damage to surrounding property or otherwise proves to be undersirable or becomes unnecessary. Adjustment, alteration, or removal required under this provision, shall be accomplished by the permittee at no cost to the State of Florida. * * * 10. The proposed submerged breakwater shall be removed within two years following installation of the experimental structure unless determined by the staff to remain in place for an extended period of time. This determination shall be based on a staff evaluation of the monitoring data, existing statutory regulations, and the feasibility of the project in concurrence with the beach management plan at that time. The experimental structure shall only remain in place after two years upon written approval from the Executive Director indicating an extension has been granted. * * * 12. The Executive Director may order removal of the experimental structure as soon as the shoreline along any portion of the area required to be nourished under Special Permit Condition 6 erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location within the area to be monitored. Petitioner requested an extension of the Permit. On July 10, 1991, Respondent issued a final order denying an extension of the Permit, pursuant to Special Permit Condition 10, and directing the Petitioner to remove the PEP reef pursuant to Special Permit Conditions 3 and 12. An extension of the Permit beyond the two years following installation of the PEP reef, according to Special Permit Condition 10, is based upon three factors: (1) an evaluation by Respondent's staff of monitoring data gathered by Petitioner, (2) statutory regulations existing at the time of the extension request, and (3) the feasibility of the project in concurrence with the beach management plan existing at the time of the extension request. Although Petitioner's monitoring data addressed the question whether the PEP reef was performing its function, it did not address existing statutory regulations or the project's feasibility in concurrence with the current beach management plan. 5/ Petitioner's monitoring data was collected over a two-year period with surveys being performed through March 1990: March 1988 (preconstruction), May 1988 (post-construction), August 1988, December 1988, February 1989, April 1989, July 1989, November 1989, and March 1990. The data was collected along 17 profile stations: seven stations were located within or immediately adjacent to the boundaries of the PEP reef, and five to the north and five to the south of the PEP reef. The data indicated that the PEP reef was an experiment and approved by Respondent as an experiment. As a conclusion, Petitioner indicates that the PEP reef is functioning for the purpose it was designed in that it is providing a benefit to the beach. Respondent disagreed with Petitioner's conclusion. For one, Respondent disagreed with the method of analysis used by Petitioner to analyze the data because Petitioner's analysis failed to filter out seasonal effects. This procedure brought into play the first of the three factors in Special Permit Condition 10 which was used for denial of the Permit extension. Petitioner's monitoring data was utilized and analyzed by Respondent. Using the data gathered, Respondent created profile plots which are cross sectional depictions of the shoreline profiles and which displayed changes to the shoreline occurring during the survey period. Respondent used a shoreline change analysis in determining the PEP reef's effect on the shoreline in its vicinity. The analysis focused on the net change in the shoreline, i.e., the net change in the location of the mean high water line, factoring out the seasonal variations which occur along the coast by comparing profile plots from the same time of year taken during the two-year monitoring period. The shoreline change analysis indicated that in the vicinity of the PEP reef the shoreline showed irregular periods of both accretion and erosion. However, the shoreline did not reflect the typical pattern that was expected with a functioning breakwater. To the contrary, the irregular periods of accretion and erosion and the irregular configuration of the shoreline indicated that factors other than the PEP reef were affecting the shoreline. One such intervening factor was attributed to the large number of existing shoreline structures called groins which are scattered throughout the area. Groins are structures intended to stabilize the shoreline by blocking the down drift movement of sand, thereby altering the natural coastal processes. The monitoring data shows that, in terms of accretion or erosion, the PEP reef produced no recognizable influence on the shoreline in its vicinity. As to the second factor in Special Permit Condition 10, at the time the Permit was granted in 1988, no regulations specifically applicable to experimental structures existed. However, in 1989 a provision specifically addressing the permitting of experimental structures became law. /6 The provision provides that the "intent" of the Florida Legislature is to "encourage the development of new and innovative methods for dealing with the coastal shoreline erosion problem," and that, in authorizing the "construction of pilot projects using alternative coastal shoreline erosion control methods," the Respondent must determine, among other things, that "the proposed project site is properly suited for analysis of the results of the proposed activity." Groins in the PEP reef area alter the natural coastal processes and, therefore, play a significant role in the analysis of the shoreline processes. The effect of the groins affected the Respondent's ability to determine the effectiveness of the experimental structure. As a result, the Respondent was unable to make a determination in accordance with the legislative mandate. As to the third factor in Special Permit Condition 10, Petitioner presented no evidence addressing this factor. Petitioner has failed to show that the experimental structure, the PEP reef, has satisfied Special Permit Condition 10. It has failed to show that the intended purpose of the PEP reef has been accomplished, i.e., that the PEP reef is effective or beneficial. In denying Petitioner's request for an extension of the Permit, Respondent directed removal of the PEP reef pursuant to Special Permit Conditions 3 and 12. Special Permit Condition 3 provides for removal, alteration or adjustment of the PEP reef if it "proves to be undersirable or becomes unnecessary." The construction of the PEP reef consisted of, among other things, the placing of individual reef units end-to-end. To alert boaters to the location of the PEP reef, a buoy was placed at each end of the structure. The stability of the PEP reef is questionable. In 1989 a storm dislodged the individual units. In an effort to prevent sliding, Petitioner attempted to realign the units to their original position and added more weight to the units. Despite Petitioner's efforts to stabilize the structure, the PEP reef has experienced continued movement. Furthermore, because of the continued movement, boaters' safety would be compromised in that the buoys would be ineffective in warning them of the location of any units which may be dislodged. Also, the additional weight to the units could cause the individual units to settle, potentially affecting the performance of the PEP reef, and could induce erosional scour around the structure itself. Special Permit Condition 12 provides for removal when "the shoreline along any portion of the area required to be nourished . . . erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location." The shoreline analysis showed that the shoreline in many portions of the nourished area eroded landward of the pre-nourished beach profile. The mean high water line had positioned landward of its pre-project location. Petitioner has failed to show that the PEP reef does not fall within the conditions of Special Permit Conditions 3 and 12. Federally protected and endangered marine species have attached themselves to and/or now reside in the PEP reef, complicating the removal of the PEP reef. In order not to disturb or disrupt this marine life, Respondent has expressed a desire in relocating the structure to a position further offshore.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources 7/ enter a final order DENYING an extension of Permit No. 86-155PB. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of April 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April 1994.
