The Issue Whether, pursuant to Part I of Chapter 161, Florida Statutes, and Florida Administrative Code Rule 62B-33, Respondent, Eric M. Flanagan (Flanagan), is entitled to construct a single-family dwelling seaward of the Coastal Construction Control Line (CCCL).
Findings Of Fact The Parties Eric M. Flanagan owns an undeveloped lot (Lot R-3) (the Property) at 530 Gulf Lane, North Captiva Island, Lee County, Florida. The easternmost 25 feet of Lot R-3 contains a road easement (Gulf Drive). (Gulf Drive is also referred to as Gulf Lane.) Gulf Drive is an unpaved, sandy roadway/trail which runs south to north. The westernmost boundary of the Property is the Gulf of Mexico. Lot R-3 is vacant. All of Lot R-3 is seaward of the CCCL. Steven D. Huff (Huff) owns a single-family residence at 531 Gulf Lane, North Captiva Island, Lee County, Florida, which is adjacent to and immediately across Gulf Drive to the east (landward) of Flanagan's Property and the proposed project. Dion DeLoof (DeLoof) owns a single-family residence at 541 Gulf Lane, North Captiva Island, Lee County, Florida, which is adjacent to and immediately across Gulf Drive to the southeast (landward) of the Property and the proposed project. The Department is the agency responsible for administering the program for construction activities seaward of the CCCL pursuant to Part I of Chapter 161, Florida Statutes, and Florida Administrative Code Rule 62B-33. The Application and Department Review On October 2, 2003, Lawrence E. Hildreth, P.E., on behalf of Flanagan, filed an application with the Department, for a permit for construction seaward of the CCCL or 50-foot setback.1 On October 2, 2003, the Department also received two boundary surveys for the Property, with and without the location of the proposed dwelling. (One boundary survey is signed by Ted B. Urban, a professional land surveyor, and dated August 21, 2003, and received by the Department on October 2, 2003. Several other floor plans were provided on sheets G and 1 through 6. Fifteen concrete pilings are shown on the "ground floor plan," sheets 0.1 and G.) A letter dated September 5, 2003, advised that the Lee County Zoning Staff reviewed the Flanagan project and determined that it "currently does not contravene zoning codes and is generally consistent with the Lee County Land Development Code." On October 27, 2003, the Department advised Mr. Hildreth that the application was incomplete, including the need for two copies of a topographic survey drawing of the Property, showing, in part, the location of the erosion control line, contour line corresponding to elevation 0 (NGVD), and the location of the seasonal high-water line in relationship to the CCCL. See Fla. Admin. Code R. 62B-33.0081. The Department advised that "[i]n order to get a favorable recommendation, the proposed project has to be landward of the line of construction, 30-year erosion projection and sufficient distance landward of the top of the dune." By letter dated April 21, 2004, and received by the Department on April 23, 2004, Mr. Hildreth responded to the Department's October 27, 2003, letter and provided the Department with topographic surveys showing, in part, the location of the proposed project, the high water line, approximate seasonal high water line, approximate vegetation line, flood zone line, contours at various elevations from the high water line landward to Gulf Drive, and the applicable CCCL. The submitted site plan, showing this information, was prepared by Mr. Urban and dated March 24, 2004. See also FE 3. Mr. Urban also prepared a boundary survey, which included most of the information set forth on the site plan, but also included, written by hand (although the author is not known), a notation of the location of the "30-year erosion projection," which was designated to be "121 feet" seaward of the approximate location of the old CCCL. Mr. Hildreth also submitted other drawings, designated "not for construction," sheets 01 through 11. Mr. Hildreth represented in his April 21, 2004, letter that "[t]here is no excavation or fill proposed except for the installation of the septic tank" and that "[a] landscape drawing is not provided as the existing site vegetation is being retained except for under the house and over the septic system." On or about April 29, 2004, the Department's Srinivas M. Tammisetti, P.E., requested Jennie Cowart, Field Engineer, to provide a site inspection report and current photographs of the project site. It appears that the Department considered the application complete as of April 23, 2004. The Department's file contains a three-page "Site Inspection Report" dated June 4, 2004, apparently prepared by Jennie Cowart, who did not testify in this case. There is a description of the proposed construction area and beach dune system as follows: This site is adjacent to the dune system and beach area. This vacant lot is 2 lots south of LE-1024 (which required a variance to build seaward of the old CCCL. LE-1024 has a Notice to Proceed but has not been started. There are no existing structures in the general vicinity north and south of this lot on the seaward side of Gulf Lane (a sand path). The dune system here is well established with a primary and secondary dune. There are no existing dune walkovers nearby. The location of the proposed septic [sic] is not shown on the reduced site plan. But the road easement is shown along the landward side of the proposed house; therefore, the septic [sic] would have to go on the seaward side of the structure. If this is the case, the septic [sic] would be within the coastal scrub and dune area. The proposed structure may have an adverse affect on the dune system from lighting (if not in strict compliance) and from the septic system. Construction fencing would be needed to protect the vegetated dune. A vegetation analysis is provided in the Site Inspection Report and percent-coverage, and natural conditions are also identified for specific types of vegetation. Vegetation comments are also provided: "The area within the building footprint is mostly mature seagrape, sabal palm, and woody coastal species. There are some large pepper trees near the road. The coastal scrub area is approx 75' wide with a series of dunes. There is no clear existing path to the sandy beach." There are four photographs attached to the report which are difficult to read. The Department's file also contains a "memo to file" dated June 16, 2004, from Emmett Foster, P.E., Florida State University Beaches & Shores Resource Center, with the subject being "[r]eview of 30 Year Erosion Estimate, R-69 to R-70 Vicinity, Lee County." Mr. Foster was asked by Department staff to review the erosion situation between Department reference monuments R-69 to R-70. (The Property is between approximately 180 to 255 feet south of R-69.) Mr. Foster stated in his June 16, 2004, memorandum: "A review of the erosion situation has been preformed, as requested. The recommendation remains as described in the previous 4/28/92 memorandum for this area, copy attached with an updated mhw data table and copies of profile plots." Mr. Foster is referring to a Memorandum dated April 28, 1992, from him to Mr. McNeal providing erosion information for the area between R-69 to R-70, in which Mr. Foster ultimately recommended using the most landward shoreline Mean High Water Line (MHWL) and Seasonal High Water Line (SHWL) of record, the 1982 Department of Natural Resources (DNR) survey as the 30-year erosion projection. See JE 1, April 28, 1992, Memorandum and attached data for Mr. Foster's analysis of the area. See also Endnote 4. (Mr. McNeal testified during the final hearing that he used this information to establish the 30-year erosion projection line.) On July 12, 2004, the Department received a revised site plan dated July 9, 2004, prepared by Mr. Urban, showing the location of a proposed septic tank, seaward of the proposed dwelling. See also FE 4. This is not the permitted location of the septic tank and drain field. See JE 1, Final Order. On or about June 20, 2004, Mr. Tammisetti prepared a memorandum to Mr. McNeal describing, in part, the proposed project. Mr. Tammisetti provided a general description of the beach/dune system: "Subject property has low ground elevation and appears to have viable dune and coastal strand/scrub vegetation. The segment of shoreline is unarmored and sparsely developed. It is subject to random fluctuations due to the effects of offshore shoals. Hence this shoreline experience is both erosion and accretion." He further stated: "Recommended location of 30-year erosion projection is the most landward (MHWL and SHWL) shoreline of record." See Finding of Fact 14. He indicated that the seasonal high water elevation is plus 3.8 feet (NGVD). The Department had permitted two previous projects in the area: LE-707, which was issued and expired in 2000, but was never built, and LE-1024 (the Duboy lot), which was issued a notice to proceed, but has not yet been built. Mr. Tammisetti determined that the "[p]roposed project is landward of line of construction and 30-year erosion projection. Impactive shore- parallel coverage is approximately 80%. Proposed project is sited sufficient distance landward of MHWL, SHWL, vegetation line and frontal dune." Mr. Tammisetti recommended approval of the project with special permit conditions. On or about July 28, 2004, Mr. Hildreth provided the Department with a vegetation map created by Geza Wass de Czege. The vegetation map is for the Property and is dated March 13, 2003. T 32-37. See also FE 6 which is the same map with better clarity. This map (FE 6) provided a description for 0.47 acres of the Property from the shoreline to Gulf Drive as follows: CODE DESCRIPTIONS ACRES 652 Shoreline Beach 0.10 312 Coastal Herbaceous Dune 0.10 322H Coastal Herbaceous Scrub 0.12 322C Coastal Scrub w/Cabbage Palm 0.11 8145 Graded Golf Cart Road 0.04 TOTAL 0.47 On August 2, 2004, the Department issued a "Notice to Proceed Withheld," indicating that the Department approved a permit for construction or other activities seaward of CCCL for Flanagan. The Department noted, however, that "construction may not commence until after the permittee has received a notice to proceed in accordance with Special Permit Conditions 1, 2, 3, 4 and 5, and permittee complies with any preconstruction requirements described in Special Permit Conditions 6." On August 2, 2004, the Department also issued a Final Order with Findings of Fact and Conclusions of Law. This Final Order providing conditions including requirements that the single-family dwelling be located a maximum of 200 feet seaward of the CCCL and constructed of a pile foundation; and have a 900-gallon septic tank and drain field such that "[t]he onsite disposal system's septic tank and chamber pipes located a maximum of 220 feet seaward of the control line" with "[c]onstruction limits located a maximum of 225 feet seaward of the control line." Flanagan was also required as a special permit condition to provide "[a] landscape and dune restoration plan depicting the mitigation of construction impacts to native salt tolerant vegetation." Special Condition 2 also provided: Prior to issuance of the notice to proceed, the permittee shall submit for approval a landscape plan to minimize and mitigate construction impacts to dune vegetation. Existing dune vegetation shall be disturbed only to the minimum extent necessary to complete work within the authorized construction limits and shall be protected by rigid construction fences. As determined to be feasible by the Department and prior to commencement of construction activities, native vegetation within the authorized construction limits shall be transplanted to suitable bare areas seaward of the control line. Transplanted vegetation shall be maintained, irrigated and/or fertilized to ensure a 75% survival rate for a minimum of one growing season. The permittee shall plant a mix of a minimum of three native salt-tolerant species within any disturbed areas seaward of the authorized structures. These plantings shall consist of salt- tolerant species indigenous to the native plant communities existing on or near the site or with other native species approved by the Department. Sod composed of non-native grasses is not authorized seaward of a major structure or decks. Planting in other areas of the project site shall not include invasive nuisance plant species such as listed in the Florida Exotic Pest Plant Council's May 2003 List of Invasive Species Category I and II. On September 20, 2004, Mr. Hildreth filed with the Department two sets of revised plans, as well as a copy of an affidavit of publication of the Department's intent to issue the CCCL permit. The Property Description The Property is located on North Captiva Island, an unbridged barrier island, bounded on the west by the Gulf of Mexico and on the east by Pine Island Sound. North Captiva Island is bounded by Captiva Pass to the north of the Property and Redfish Pass to the south, both of which are unstabilized, dynamic inlets. The shorelines adjacent to and between these unstabilized inlets experience higher rates of erosion and accretion than would a normal shoreline not affected by such an inlet. See generally PE 5 for a 2004, post-Hurricane Charley aerial.2 See also PE 7, updated April 2005, Department report showing, in part, area between R-69 and R-70 as "critically eroded" at 69 and 71. The Property is approximately 75 feet wide (parallel to the shoreline). The depth of the Property as of the July 9, 2004, Urban site plan, was approximately 276 feet on the north and 262 feet on the south, with each boundary extending from the eastern edge of the Property seaward to the MHWL. T 22. The Property accreted approximately 20 feet since November, 2004, and after Hurricane Charley. Stated otherwise, the MHWL moved to the west approximately 20 feet. (According to Mr. Urban, as of a week before the final hearing, the north line was 282 feet and the south line was 274 feet. T 27.) Elevations on the Property range from 1.2 feet at the MHWL to 10.0 to 10.5 feet at the project footprint and at the eastern boundary of the Gulf Drive easement, and 9.6 feet at Gulf Drive. The following relevant elevations, from the Gulf of Mexico to Gulf Drive, are portrayed on the site plan (FE 4): approximate SHWL -- 3.8 feet; approximate vegetation line -- 6.0 feet; 8.0 feet beginning approximately 10 feet east of the vegetation line and extending east, with one dip to 7.8 feet and then rising to approximately 8.5 feet, then dipping to 7.9 feet to the east and rising ultimately to 10.5 feet at the right-of- way line and the eastern edge of the project. FE 4. See also Findings of Fact 31, 34-36. The lots immediately to the north and south of the Property are vacant. (The Duboy lot, two lots north of the Property, is the subject of Department CCCL permit LE-1024, but no dwelling has been built.) Huff owns the two-story dwelling to the east of the Property and Gulf Drive. This dwelling is set back from the roadway easement on the east side of Gulf Drive. PE 3. DeLoof owns the single-family dwelling southeast (landward) of the Property and across Gulf Drive. The Project as Preliminarily Approved Flanagan proposes to construct a single-family dwelling on the Property with the exterior dimensions of the foundation measuring 60 feet in width (in the shore-parallel direction) and between 11 and 16 feet deep (in the shore-normal direction). The side yard setbacks are approximately 7.5 feet. FE 4; JE 1-Final Order at 2. Given the road easement, the project can not be located any farther eastward. The proposed dwelling will be constructed on 15 pilings (12 inches in diameter), see, e.g., JE 1 at August 21, 2003, Survey and Drawing and Certification, sheet G and August 23, 2004, Survey Drawing and Certification, sheets C100-101 and A100, and must comply with the Florida Building Code. See § 163.053(22), Fla. Stat.; Fla. Admin. Code R. 16B-33.008(1). The project includes a 900-gallon septic tank to serve the proposed dwelling. Special permit condition 2.1 permits the "onsite disposal system's septic tank and chamber pipes [to be] located a maximum of 220 feet seaward of the" CCCL. As a result the septic tank must be moved landward from the original proposal. See, e.g., FE 4. The dwelling's most seaward point will be a maximum of 200 feet seaward of the CCCL. Construction limits are located a maximum of 225 feet seaward of the CCCL. JE 1-Final Order at 2. There are no walkways associated with this project. The Location of the Dune(s) The expert testimony and exhibits were in conflict regarding the location of the dune(s) on the Property. The several site plans submitted by Flanagan do not specifically designate the location of any dunes on the Property. See, e.g., JE 1; FE 3-4. These site plans indicate the approximate location of the vegetation line, various elevations, and contour lines. Id. See also Findings of Fact 22-23. Flanagan also provided a March 13, 2003, analysis of the vegetation on the Property, see Finding of Fact 17. FE 6. The Department's Field Engineer prepared a site inspection report dated June 6, 2004, which stated that "[t]he dune system here is well established with a primary and secondary dune." Vegetation cover and comments are also indicated, including a notation that the coastal scrub area is approximately 75 feet wide with a series of dunes. However, the report does not identify the location of a frontal dune. The description of the vegetation appears consistent with the March 13, 2003, descriptions of the Property. See Findings of Fact 13, 17, 38, and 39. The same can be said regarding the Field Engineer's description of "the building footprint" which is described as "mostly mature seagrape, sabal palm, and woody coastal species." Id. See also FE 6 and Mr. De Czege's testimony T 32-37. Mr. Tammisetti, whose testimony is in the record by deposition, stated that he had never been on the Property. He located the dunes on the Property based on the topographic elevations depicted on the Flanagan site plan, received by the Department on July 12, 2004. PE 1 at 22-23; FE 4. After consulting the statutory definitions of "frontal dune" and the rule definition of "primary dune," Mr. Tammisetti located the "frontal dune" and the "primary dune" at contour/elevation 8 on FE 4, i.e., they are in the same location. He also noted a small dune at contour 9, slightly landward. He always considers impacts to the frontal dune, regardless of where it may be located in reference to the beach. In like manner, if there is no primary dune and only a fontal dune, he would consider impacts to that dune. Mr. Tammisetti also described the frontal/primary dune as "immediately landward of the vegetation line." PE 1 at 23-26, 50, 53-58. Mr. McNeal is familiar with North Captiva Island and has processed applications for this area. T 53. However, he has not been on the island "in quite a while," "[a]t least since the '90s." T 83. In making his determinations in this case, Mr. McNeal relied on the information in the Department's file, including the Urban surveys (FE 3-4), vegetation report, and other information regarding vegetation on the Property. See, e.g., T 200-201. Based on that information, Mr. McNeal provided the approximate location for three separate dune areas on the Property: 1) he located a frontal dune (spanning the entire width of the Property) between elevation 5.0 feet and the seaward one-third of the elevation contour 8.0 (a semi-circle extending approximately two-thirds laterally across the southern portion of the Property); 2) he located a secondary dune (spanning the entire width of the Property) landward of the frontal dune (he identified) and after a "little trough," at approximately the 8.5 feet elevation and encompassing a smaller semi-circle elevation at 9.0 feet; and 3) he located a primary dune landward of the secondary dune and another "little trough," at the proposed dwelling footprint and road easement, between elevations 10.0 and 9.5 feet, where the "vegetation coverage gets to be more established and more dense." T 63-66, 87; FE 3-4. On the other hand, Ms. Erickson visited the Property several times and since the hurricane season of the fall of 2004 (last time late in January 2005), and stated that there was no continuous, vegetated dune that provides protective value in the areas referenced as the frontal dune by Mssrs. Tammisetti and McNeal. Ms. Erickson stated that historically there had been a frontal dune in this area, but that it began to erode away some time after 2001, and it no longer exists. T 121-122. Ms. Erickson described the area where Mssrs. Tammisetti and McNeal located the frontal dune as having "small mounds" of elevation that are not "continuous along the shoreline," for adjoining property. She also described the vegetation in this area as "not continuous" and "very sparse," although she stated "there are some sea oats in the area." Ms. Erickson located the "primary (frontal) dune" as the rear (east) approximately 30 to 40 feet of the Property, which overlaps with the proposed footprint of the dwelling, and is in the approximate location where Mr. McNeal located the primary dune. T 115, 121-125; FE 3-4; PE 8. Stated otherwise, for Ms. Erickson, the primary/frontal dune is located between the two yellow lines on Flanagan Exhibit 4. T 124-125. This is a difficult issue to resolve. Mr. Tammisetti and Mr. McNeal are well-versed in identifying dunes and with permitting structures seaward of the CCCL. However, their opinions are given less weight in this case regarding the location of the dunes, in part, because neither personally observed the Property. The vegetation analysis performed by Mr. de Czege in March 2003, is helpful to some extent, but not definitive, although he testified that the vegetation described as "coastal herbaceous dune" is consistent with what would be found on a frontal dune. T 34-36. See Finding of Fact 17. (Mr. de Craze was last on the Property in and around May 2004. T 37.) The site plans submitted by Flanagan are likewise helpful to some extent, but are also not definitive. The Department's site inspection report, see Finding of Fact 13, is helpful to some extent. The inspection report suggested that the septic system would need to be placed on the seaward side of the proposed dwelling and necessarily "within the coastal scrub and dune area." However, although it is stated that the dune system is well established with a primary and secondary dune and coastal scrub area approximately 75 feet wide with a series of dunes, the location of a frontal dune is not discussed. Id. The weight of the evidence indicates that there is an elevated dune area with vegetative cover the width of the Property and somewhat seaward of the proposed footprint of the dwelling (between elevation 8.0 feet and 10.0 feet), which has protective characteristics, and will most likely be left undisturbed. But see PE 12, showing a 15-foot construction access and staging area without consideration of the designated septic tank area. However, the weight of the evidence also indicates that this primary and frontal dune area also includes the more landward location between the yellow lines between elevation 10.0 and 10.5 feet. The project is proposed to be constructed in the middle of this primary and frontal dune. FE 4. The weight of the evidence indicates that at least some native vegetation and in situ sandy soils will be removed during the construction of the project. If the project is constructed in accordance with the "plans" submitted to the Department on September 20, 2004, (JE 1), as interpreted by Ms. Erickson, see, e.g., Findings of Fact 60-61, construction of the project will result in the removal or destruction of native vegetation and in situ soils from the primary and frontal dune area such that it more likely than not will destabilize the primary and frontal dune identified by Ms. Erickson and potentially create a significant adverse impact on the beach and dune system or adjacent properties, notwithstanding Special Conditions 2.2 and 2. [sic] (the last full paragraph on page 2 of the Final Order which should be paragraph 3.) and the General Permit Conditions in Florida Administrative Code Rule 62B- 33.0155(1)(g)-(k). See Finding of Fact 19. JE 1.3 30-Year Erosion Projection The Property is located between approximately 180 feet and 225 feet south of Department Range Marker R-69. R-70 is south of the Property. PE 6. As noted above, the area is subject to significant fluctuations in beach width. See Findings of Fact 21-22. See also JE 1, Emmett Foster April 28, 1992, Memorandum. Depending on the stability of the shoreline in question over a significant period of time, Florida Administrative Code Rule 62B-33.024(2) allows several methods to determine the location of the 30-year erosion projection. T 56- 57. 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." Fla. Admin. Code R. 62B-33.002(57) and 62B-33.024(1). The 30-year erosion projection is determined using one or more procedures set forth in Florida Administrative Code Rule 62B-33.024(2)(a)-(c). Relevant here, "[s]ome shoreline areas, such as those adjacent to or in the vicinity of inlets without jetty structures, can experience large-scale beach-width fluctuations with or without net erosion losses. Other beach areas can fluctuate greatly due to the observed longshore movement of large masses of sand, sometimes referred to as sand waves. In these areas, a 30-year erosion projection shall be estimated from the available data at the SHWL landward limit of the large beach-width fluctuations within the last 100 years, plus the application of a net erosion rate, as described in paragraph 62B-33.042(2)(a), F.A.C., if such can be determined from the available data." Fla. Admin. Code R. 62B-33.024(2)(c)(emphasis added). This is the appropriate rule paragraph to determine the 30-year erosion projection in this case. T 57, 130. The Department has consistently used the most landward shoreline (MHWL and SHWL) of record (the 1982 Department survey) as the 30-year erosion projection between R-69 and R-70 on North Captiva due to the dramatic swings between periods of erosion and accretion. The Department did not calculate a net erosion rate for the Flanagan project. During the summer of 2004 and in light of the Flanagan application, Department staff requested Mr. Foster to review the erosion situation between R-69 and R-70 for the purpose of reviewing the 30-year erosion projection. Mr. Foster's recommendation remained the same as it was stated in his April 28, 1992, memorandum, "with updated mhw data table and copies of profile plots." See Finding of Fact 14. (Mr. Foster used Rule 62B-33.024(2)(c) to calculate the 30-year erosion projection, but did not calculate an additional net erosion rate on top of his 30-year erosion projection which stopped at the 1982 SHWL, see Finding of Fact 14. T 171.) During the final hearing, Mr. McNeal, utilizing Mr. Foster's updated data, located the SHWL (blue hatch line) as of 1982 on an aerial which depicts the May 30, 1991, CCCL. The depicted SHWL is the 30-year erosion line according to Mr. McNeal. T 171, 192-193; JE 3. The proposed project is landward of this 30-year erosion projection. The location of the 30-year erosion line was chosen because, according to the Department, it is the method most compatible with large-scale beach fluctuations and unpredictable shoreline trends. T 57. The Department's analysis was predicated on the assumption, based mainly on Mr. Foster's analysis, that a net erosion rate should not be determined for the Property. On the other hand, Ms. Erickson calculated a net erosion rate of -4.3 feet per year from data between 1951 and 2004-2005, although Department data exists back to 1859.4 T 130- 135, 155-165, 168-177, 187-188; PE 10. Ms. Erickson multiplied -4.3 by 30 years and added the most landward SHWL over the last 100 years which yielded a 30-year erosion projection which is landward of the proposed project. PE 11, purple line. Mr. McNeal disagreed with Ms. Erickson's location of the 30-year erosion line in this case, preferring to rely on Mr. Foster's analysis. T 196-197. He believed that "it may be an issue of judgment on data to be used in this case, not necessarily [the] rule itself, but the data that was used." T 196. Again, Mr. McNeal testified that the Department has consistently used Mr. Foster's methodology when it reviewed other permits along this shoreline, and, in particular, with respect to the Department's consideration of the Duboy property located two lots to the north of the Property. T 197-198. Flanagan, through Mr. McNeal and Mr. Foster's analysis, presented a prima facie case regarding the location of the 30-year erosion projection, which was adequately rebutted by Petitioners. It was then incumbent on Flanagan, as the applicant, to ultimately prove the reasonableness of locating the 30-year erosion projection as indicated by Mr. McNeal, which he did not do. Mr. McNeal did not state that Ms. Erickson's analysis of data (which did not include data back to 1859, see JE 1, Foster April 28, 1992, Memorandum and attached data and Endnote 4) was flawed or otherwise inconsistent with Rule 62B- 33.024(2)(a)-(c). It is concluded that the 30-year erosion projection is as depicted on Petitioners' Exhibits 10 and 11. Therefore, the proposed project is seaward of the 30-year erosion projection. Continuous and Uniform Line of Construction Florida Administrative Code Rule 62B-33.005(9) provides that "[i]f in the immediate area a number of existing structures have established a reasonably continuous and uniform construction line and if the existing structures have not been unduly affected by erosion, except where not allowed by the requirements of Section 161.053(6), F.S., and this rule chapter, the Department shall issue a permit for the construction of a similar structure up to that line, unless such construction would be inconsistent with subsection 62B-33.005(3), (4), (7), (8), or (10), F.A.C." Mr. McNeal located the established line of construction seaward of the proposed project by considering aerial photographs, the Department's database for permit history, and the Flanagan application. See FE 2, red line for Mr. McNeal's location of the continuous line of construction. Mr. McNeal was able to identify structures north and south of the Property, which appeared to be seaward of the proposed structure. (The Gabbert house, which is south of the Property, was considered. FE 2, number 3. The Department also considered, in part, its approval of CCCL permit LE-1024 for the Duboy lot (number 2 on FE 2, T 61-63, 198-200), two lots north of the Property.) There is no structure on the Duboy lot. The weight of the evidence indicates that the Gabbert house has not been "unduly affected by erosion" and that the line of continuous construction determined by Mr. McNeal was reasonable. Removal or Disturbance of Native Vegetation and In Situ Sandy Soils Florida Administrative Code Rule 62B-33.005(4)(a)-(c) provides: 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 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, immediately adjacent properties, or the coastal system. See Fla. Admin. Code R. 62B-33.002(31)(a)-(d) for definitions of "impacts," "significant adverse impacts," "minor impacts," and "other impacts." Mr. Hildreth stated that the only proposed excavation5 "per se would be the installation of the septic tank and drain field, and any type of tie beams you might have between the pilings for bracing." See also PE 1 at 30. He stated that primarily seagrapes and cabbage palms are located on the dwelling footprint and that these would be placed "over to the side." He also opined that approximately one truck load of dirt would be excavated and spread around the site, including on top of the septic tank and drain field, which will be located "immediately west of the house" and no more than 220 feet seaward of the CCCL. This would result in a change in elevation around the drain field of approximately six inches to a foot. Fifteen, 12-inch pilings are proposed. T 43-45; JE 1, Final Order at 2. Conversely, Ms. Erickson testified that construction of the dwelling foundation alone would require the excavation of approximately 430 to 600 cubic yards of material from the frontal and primary dune (located by Ms. Erickson, (PE 8 and 12)). T 137-149; see also JE 1, August 23, 2004, site plan and other sheets filed with the Department and Finding of Fact 25. (The Department does not review construction plans for a proposed dwelling. According to Mr. Tammisetti, the Department examines the "siting of the structures." PE 1 at 29, 38, 42. See also T 202.) Ms. Erickson also stated that significant excavation of dunes causes instability of the dune system by loosening sediments, destroying vegetation, and creating flow pathways that exacerbate wind and wave erosion. Ms. Erickson expects significant adverse impacts to the frontal dune as a result of proposed excavation on the Property. Id. Mr. McNeal acknowledged that excavation and vegetation removal causes instability of the dune system, but opined that the applicant had minimized the removal or disturbance of in situ sandy soils; that the disturbance of in situ sandy soils will not result in net excavation; that the project will not result in the destruction or removal of native vegetation to such a degree that the frontal dune will lose any protective value, destabilize the frontal dune or increase erosion by either wind or water; that the proposed construction 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 have a significant adverse impact to the beach and dune system; and that the Department's Final Order does not allow removed or disturbed in situ sandy soils to be placed landward of the CCCL. T 66-82, 202. Mr. McNeal's opinions are predicated, in part, on his belief that the frontal dune is located seaward of the proposed dwelling and that excavation on-site will be minimal and temporary. Id. See also PE 1 at 30-31, 36-37, 44, 53. The weight of the evidence indicates that notwithstanding the permit conditions, the excavation of in situ sandy soils and native vegetation from the frontal/primary dune is more likely than not to result in significant adverse impacts to the beach and dune system.6 Local Approval There is no evidence that Lee County has rescinded the prior approval letter or that the project has undergone any major modifications that would require the Department to request further approval from Lee County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the CCCL permit. DONE AND ENTERED this 1st day of September, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 1st day of September, 2005.
Findings Of Fact On September 23, 1983, Hollywood submitted a permit application to DNR for construction of the proposed project which is the subject matter of this proceeding. DNR designated that permit application as Permit Application 50-41. The proposed project is actually the first phase of a two-phase project, Phase II of which has already been permitted by DNR. Phase I, which is the subject of Permit Application 50-41, consists of an extension of existing Surf Road in the City of Hollywood, an extension of an existing asphalt boardwalk, construction of a parking area with landscaped island, swale, and associated lighting. The excavated fill removed from the site of Phase I is to be used in the construction of a dune which is encompassed within Phase II of the project. The properties on which Phase I and Phase II are to be constructed are owned by the City of Hollywood and are located seaward of the Coastal Construction Control Line and landward of the Erosion Control Line. The Summit Condominium is a condominium development located west of South Surf Road in the City of Hollywood, and is directly adjacent and contiguous to the property upon which the aforementioned project is to be constructed. Petitioner is the builder and developer of the Summit Condominium and, in addition, is the fee simple owner of approximately 15 units in that development. Phase I of the proposed project, which is the permit application at issue in this proceeding, provides for the construction of a 121-space public parking area which will be approximately 62 feet wide and 605 feet long, and will extend approximately 95 feet seaward of the Coastal Construction Control Line. The parking lot will be constructed with a six-inch limerock base over a six-inch crushed limerock subbase, and will be surfaced with a one and one-half- inch asphalt wearing course. The parking lot is designed with a definite landward slope, so that stormwater will sheet flow across the parking lot away from the dune system. There is no evidence of record in this proceeding which would in any way justify a conclusion that stormwater runoff from the parking lot area will have any adverse effect on the dune system seaward of the lot. Stormwater runoff once it has left the parking lot surface will be collected in a swale and drainage ditch system located landward of the paved parking lot surface. The drainage ditch will be composed of sandy material presently located on the site and is designed on a 1.2 to 1 slope. In addition, Wedelia is to be planted in and around the drainage ditch system in order to stabilize the slopes of the ditch. The ditch and swale system is designed to allow most stormwater runoff to percolate into the soil, with any excess being collected in the ditch itself and transmitted in a northerly direction. A drainage calculation study prepared in conjunction with this proceeding demonstrates that the drainage capacity for the proposed ditch meets minimum standards contained in the South Florida Building Code, as applied by the City of Hollywood. As the ditch fills with stormwater, the water will flow in a northerly, shore parallel direction to Jefferson Street, which is located north of both the proposed project and the Summit Condominium. From Jefferson Street, runoff from the project site will flow westerly to Highway A-1-A where an existing stormwater sewer system is located. If for some reason that system proves insufficient to handle runoff, the runoff will then travel across A-1-A into the intracoastal waterway. There is no competent evidence of record in this proceeding to demonstrate that stormwater runoff from the project site will, under any conditions, flow onto Petitioner's property. Phase I of the project has been designed to minimize the potential for the creation of aerodynamically or hydrodynamically propelled missiles in the event of a major storm. The asphalt surface of the parking lot is designed to break into chunks which will settle into the sand or water when exposed to wind and water forces. The parking meters are set four feet into the ground which reduces their potential to act as missiles, but even should the beach recede to the point where the meters are installed, evidence of record in this proceeding establishes that they will fall to the base of the eroded dune wall and will be washed out to sea rather than be propelled shoreward either by water or air. Various storm surge computer models for pre- and post-construction conditions at various locations on the property were performed. The result of these models shows that there will be no difference in impact on the beach dine system and adjacent property between the pre- and postconstruction profiles in the event of a ten-year storm. Further, computer models actually showed that there will be less erosion for the post-construction profile than for the preconstruction profile in the event of a twenty-year storm surge. In the event of a fifty-year or greater storm event, the beach profile for both pre- and postconstruction in the project area would be inundated, so that the impact of such a storm will be the same with or without the proposed construction. Evidence of record does, however, establish that based upon postconstruction conditions as proposed in the permit application it would take a greater storm to erode material from the postconstruction profile, thereby establishing that the proposed project will afford greater protection than existing topography. It appears from the record in this proceeding that Hollywood's Permit Application 50-41 is complete, and that DNR has in its possession all information necessary and required by law for the processing of the permit application. Engineering plans submitted in support of the application for Phase T have been signed and sealed by a professional engineer registered in the State of Florida.
Recommendation RECOMMENDED That a Final Order be entered by the State of Florida, Department of Natural Resources, granting the requested permit. DONE AND ENTERED this 25th day of October, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1983. COPIES FURNISHED: Steven L. Josias, Esquire Donald J. Dooty, Esquire 3040 East Commercial Boulevard Fort Lauderdale, Florida 33308 Deborah A. Getzoff, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Leonard Lubart, Esquire Post Office Box 2207 Hollywood, Florida 33022 Elton J Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue The issue is whether, pursuant to Section 161.053, Florida Statutes, and Rule 62B-33.005, Florida Administrative Code, Petitioners are entitled to a coastal construction control line permit to build a single-family residence in Volusia County with a structural elevation of 19 feet National Geodetic Vertical Datum, not 24 feet National Geodetic Vertical Datum, as required by Respondent.
Findings Of Fact Petitioners own an undeveloped lot located at 4279 South Atlantic Avenue in the Wilbur-by-the-Sea subdivision in unincorporated Volusia County. Mr. Humphries' family has owned the lot for 50 years. The rectangular lot is 210 feet deep and 50 feet wide. The narrower end abuts the Atlantic Ocean on the east and South Atlantic Avenue on the west. The south boundary of Petitioners' lot abuts a developed lot. The house located on this lot has a finished- floor elevation of 26.15 feet National Geodetic Vertical Datum (NGVD). This is consistent with the structural elevations of most of the residences in the immediate vicinity of Petitioners' lot. Even though the seaward extent of Petitioner's proposed structure is roughly in a line with the seaward extent of the nearby homes, the issue in this case is the structural elevation. The north boundary of Petitioners' lot abuts the 50- foot-wide right-of-way of Major Street. In 1984, a wooden walkway was constructed in the southern half of the Major Street right-of-way to allow pedestrians access to the beach. By that time, Major Street was no longer open for vehicular access. However, the construction and maintenance of Major Street may have contributed to the lower elevations on the north boundary of Petitioners' lot, as described below. Nearly all of the lots in the vicinity of Petitioners' lot have been developed; most, if not all, of them contain single-family residences. Petitioners, who are nearing retirement, wish to construct a house that would accommodate them in their later years when they expect their mobility to be reduced. Petitioners' house will sit atop a prominent secondary dune, as do all of the other oceanfront homes in the immediate vicinity. The house will also be confined roughly to the landward half of the lot. These factors mean that the relatively short driveway leading from South Atlantic Avenue to the garage will be relatively steep. Petitioners proposed a reduction in the top of the dune to reduce the steepness of the driveway and the difference in finished-floor elevations between the garage and the house. Generally, the south side of Petitioners' lot is higher than the north side. The seasonal high water line is 8.4 feet NGVD. The lot's east boundary, which is 7-8 feet landward of the seasonal high water line, is about 11.5 feet NGVD. The elevation of the south boundary rises to 28.5 feet NGVD, at a distance slightly east of the most seaward extent of the 10-foot wooden deck that is the most seaward structure proposed by Petitioners. The elevation of the north boundary does not rise much; over the same distance, it reaches only 12 feet NGVD. Proceeding westward, toward South Atlantic Avenue, the south boundary drops from its 28.5-foot elevation. Parallel to the proposed house, the boundary remains at about 25 feet NGVD, except it drops to about 20 feet at the point where the house would meet the garage. For the length of the 26-foot garage, the south boundary drops to 18.5 feet NGVD. For the length of the 30-foot section of driveway between the garage and the west boundary, the south boundary drops from 18 feet NGVD to 17 feet NGVD. The north boundary rises to its highest point, 20.6 feet NGVD, at a point just landward of the point along the boundary closest to the junction between the proposed wood deck and the house. Running parallel to the proposed house, the north boundary drops to about 18 feet NGVD (directly across from a point along the south boundary that reaches about 25 feet NGVD) and then to about 17.5 feet NGVD, at a point just landward of the point closest to the junction of the proposed house and garage. The proposed house would occupy elevations, prior to proposed site preparation, of about 28 feet NGVD at the seaward side, 22-26 feet NGVD at the midpoint, and no more than 21 feet NGVD at the landward side. The proposed deck, house, and all but a sliver of the garage lie seaward of the coastal construction control line. The northeast corner of the proposed house is 72 feet seaward of the coastal construction control line. The dune is largely vegetated. The vegetation includes sea oats, shrubs, and some palm trees, although Brazilian pepper, a nuisance exotic, also vegetates part of the dune. Just seaward of the southeast corner of the proposed deck is a hole, perhaps from past excavation, about ten feet deep and occupying 8-10 percent of the lot. This is the only portion of the lot significantly below-grade. Overall, the dune is functional and healthy. To the extent that it has been disturbed in the past, the dune seems to be recovering vigorously. On or about July 21, 1999, Petitioners applied for a permit to construct a residence seaward of the coastal construction control line. In their application, Petitioners proposed a structural elevation of 19 feet NGVD. The structural elevation, which is about two feet lower than the finished-floor elevation, is the lowest portion of the effectively horizontal structural elements supporting the floors and walls of the structure. Respondent's examination of the application raised concerns about the proposed structural elevation of 19 feet NGVD. The greater elevation of much of the dune under the footprint of the house would necessitate the relocation of dune materials on the lot or removal of dune materials off the lot. However, discussions between Respondent's representative and Mr. Bullard, Petitioners' engineer, failed to identify design modifications upon which both sides could agree. Thus, on June 5, 2000, Respondent issued a Final Order and Notice to Proceed Withheld (Final Order). The Final Order states that Respondent found that Petitioners' application was complete on March 6, 2000. Although the Final Order generally contemplates that construction will eventually proceed, Special Permit Condition 1 prohibits construction until Respondent issued a written notice to proceed. Special Permit Condition 2 warns that Respondent will not issue a notice to proceed until Petitioners submit plans that raise the structural elevation to 24 feet NGVD, relocate all excavated materials seaward of the coastal construction control line (but not more than 120 feet seaward of the line), prohibit net excavation seaward of the coastal construction control line, and specify the planting of all filled or disturbed areas with salt-resistant native vegetation transplanted from onsite areas that will be excavated and other sources, as needed. Special Permit Condition 7 requires Petitioners to obtain the fill material from a source landward of the coastal construction control line. The fill material also must be of a sand that is similar to that onsite in terms of grain size and coloration. However, nothing in the Final Order specifies any requirement to replicate present--or design scientifically verified new--seaward and landward slopes of the portion of the impacted dune. In resisting Respondent's demand to raise the structural elevation, Petitioners have sought to reduce the slope of their driveway, which involves traffic-safety issues in turning on and off busy South Atlantic Avenue, and eliminate the need for an extensive design modification to allow wheelchair- bound persons access to the house from the garage. At the hearing, Petitioners offered mitigation in the form of an artificial dune to be constructed seaward of the residence with excavated materials. However, this proposal would destroy existing vegetation and failed to specify slopes, so that the artificial dune would likely suffer significant and rapid erosion. Petitioners have failed to prove that their proposed construction activities, with a structural elevation of 19 feet NGVD, would not adversely impact the most prominent dune landward of the ocean, so as to reduce the existing ability of this dune to resist erosion and protect upland persons and property.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing Petitioners' challenge and issuing the Final Order and Notice to Proceed Withheld dated June 5, 2000. DONE AND ENTERED this 7th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2001. COPIES FURNISHED: David P. Struhs, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Robert R. Bullard, P.E. Qualified Representative Absolute Engineering Group Post Office Box 269 Daytona Beach, Florida 32115 Francine M. Ffolkes Senior Assistant General Counsel Timothy E. Dennis Certified Legal Intern Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact On December 12, 1988, Petitioners filed an application with Respondent for a permit to construct improvements to real property seaward of the coastal construction control line (CCCL). Petitioners' property is located at 2400 North Atlantic Boulevard, Fort Lauderdale, Florida. The parcel of land owned by Petitioners measures approximately 50' in width and 140' in depth and is located in a primarily residential area of beachfront property with high property values. On this parcel is a residence that is approximately 1600 square feet in size. The residence is constructed on reinforced concrete pilings. There are many other residential and commercial structures in this area which are also constructed on reinforced concrete pilings. The improvements to this property seaward of the CCCL that Petitioners desire to make and that Respondent finds objectionable is the construction of a poured monolithic reinforced concrete slab patio supported by twenty-one reinforced concrete pilings. The patio would be approximately 27' by 50' in size. On November 17, 1987, Respondent approved an application filed by a previous owner of this property for the construction of a patio to be constructed with concrete pavers. Petitioners arranged to have the previously approved permit transferred to their name. The project contemplated by the subject application employs a different method of construction than the one permitted in 1987 because Petitioners desire to have a patio that is more attractive and is easier to maintain. Petitioners are also concerned that concrete pavers will be hazardous during a storm since they may be subject to being swept along by high winds and water. Petitioners have valid reasons for preferring the method of construction reflected by the subject application based on aesthetic and maintenance considerations. However, Petitioners did not establish that the proposed method of construction was necessary as a safety measure. To the contrary, the greater weight of the evidence was that blocks the size of the pavers to be used for the construction that has been permitted would not be propelled by either hydrodynamic or aerodynamic forces during a major storm as Petitioners contend. Instead, these blocks would likely be undermined during a major storm and, because of their weight, fall as the beach is eroded. Respondent has regulatory authority over the property in question. Respondent's regulatory authority, which includes rule making authority, is conferred by statute. Respondent's responsibilities include the preservation of the beach-dune area within its jurisdiction. There is a relationship between the siting of a structure, in terms of its proximity to the shoreline, and the likelihood that the structure will have an impact on the beach and dune systems. The subject patio is to be located within the beach-dune system. The patio Petitioners propose to construct on concrete pilings would have more of an adverse impact on the beach-dune system than a patio constructed of concrete pavers. During a major storm, greater erosion on the site around the pilings will occur as a result of scour. Following a major storm, the ability of a dune to re-form will be more inhibited if the patio is supported by pilings. Considering the hundreds of thousands of pilings that are already in place along the beach, the effect of the twenty-one pilings proposed by Petitioners, whether considered individually or cumulatively, will be insignificant. A patio is usually considered by Respondent to be a "minor structure". "Minor structures" are non-habitable structures that are generally designed to be expendable during a major storm event. Dune walkovers, viewing platforms, and decks are examples of minor structures. A patio constructed of concrete pavers would be another example. The nature of their construction permits minor structures to be placed more closely to the shoreline than major structures. The patio as proposed Petitioners has been properly categorized by Respondent as being a "major structure" since it is designed to withstand a major storm event. Respondent has not to date permitted any major structure as far east of the CCCL in this area of Broward County as Petitioner's proposed project. All major structures constructed on pilings that are that far east of the CCCL were built before permits were required. Respondent is concerned that the granting of the subject permit will set a precedent that will require the issuance of permits for the construction of other major structures as far seaward of the CCCL as the Petitioners' proposed project, and that such construction would result in a cumulative adverse impact on the beach-dune system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a final order which denies the subject permit. DONE AND ENTERED this 20th day of September, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact in paragraphs 1-6 and 8-10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraph 8 are rejected as being argument. The proposed findings of fact in the first sentence of paragraph 11 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 11 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in the third sentence of paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 13 are rejected as being conclusions of law that are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are rejected as being unsubstantiated by the evidence. While Petitioners' application included as a proposed condition to the issuance of the permit, a covenant running with the land that would require the property owner to reconstruct the beach-dune system in the event of destruction by a major storm, the evidence did not establish, as Petitioners proposed, that the covenant would "... protect the interests of DNR and its long term end of protecting the dunes and beaches". The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-2, 5-6, 10-16, 24-27, 30-31, and 33 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraphs 3 and 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 21 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 7-9 and 28-29 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraphs 17-20, 23, and 32 are rejected as being unnecessary to the conclusions reached. These proposed findings are incorporated in part as conclusions of law. The proposed findings of fact in paragraph 22 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made. COPIES FURNISHED: Kenneth G. Stevens 412 Northeast Fourth Street Fort Lauderdale, Florida 33301 Dana M. Wiehle, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Room 1003 Tallahassee, Florida 32399-3000 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ken Plante General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Because of a 1984 Thanksgiving Day storm which inflicted damage in coastal areas, Barry Manson-Hing, an area engineer employed by the Department, issued emergency coastal construction permits from a temporary office in the Vero Beach Administration Building. On December 3, 1984, Respondent sought an emergency permit to allow him to place sand and sand-filled bags on his coastal property at 3755 Ocean Drive, Vero Beach, Florida. Respondent asked Mr. Manson-Hing if he could use sand from the beach to restore eroded areas. Mr. Manson-Hing said he could not, and told him that sand would have to be obtained from an upland source. Respondent replied that he had an available source of upland sand and would haul it by truck to the beach site. He also mentioned that he would remove an existing pine tree to allow vehicular access. On the next day, December 4, 1984, Mr. Manson-Hing issued an emergency coastal construction permit, #1R-127E, to Respondent. The permit allowed Respondent to place 1,500 cubic yards of sand fill material to restore eroded beach and dune areas at the site, and also permitted him to temporarily place sand-filled bags on filter cloth. In capital letters, the permit warned, "SCRAPING OF THE BEACH IS PROHIBITED." (Dept. Exhibit 4) On December 5, 1984, Lt. Raymond Barker of the Vero Beach Police Department, observed beach scraping activities being conducted on Respondent's coastal property. Respondent was present on the site. Beach sand seaward of the Coastal Construction Control Line for Indian River County had been scraped and deposited at the face of the sand dune. The removal of the sand created depressions in the beach area seaward of the Coastal Construction Control Line. Lt. Barker ordered Respondent to cease the activity until it could be determined he had the required authorization. Respondent complied with Lt. Barker's order. The scraping of the beach and removal of sand below the coastal construction control line was accomplished without a permit from the Department. On July 17, 1985, the Department entered its "Final Order" assessing Respondent a $500 fine for unauthorized coastal construction activities in violation of Section 161.054, Florida Statutes (1985). Respondent requested a hearing; resulting in this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department assess, impose, and collect an administrative fine of $500, to be paid within 30 days of final agency action. DONE AND ORDERED this 20th day of June, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings the 20th day of June, 1986.
Findings Of Fact In 1981, Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley Petitioners' Exhibit 1, Respondent's Exhibit 1) At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December, 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20) On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984 that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area . . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16) The height of the dune line on petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under deed covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to some extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8) Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21) Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10) Although conflicting evidence was received as to whether or not the existing structures east of Petitioners lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioner's Exhibit 1) Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2) The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4.)
The Issue The issue is whether Petitioner's after-the-fact modification application for construction activities seaward of the coastal construction control line in New Smyrna Beach, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In 1984, Petitioner, Thomas R. Sweeney, purchased a home at 5917 South Atlantic Drive, New Smyrna Beach, Florida. At that time, the home was approximately 3,000 square feet in size. The home sits seaward of the coastal construction control line (CCCL) and thus any construction activities on the premises require the issuance of a CCCL permit from Respondent, Department of Environmental Protection (DEP). In 1987, Petitioner constructed a first floor porch, second story addition, and wooden deck at the site without first applying for and obtaining a CCCL permit from the Department of Natural Resources, which was subsequently merged with DEP. After the construction was completed, Petitioner submitted an after-the-fact application for a CCCL permit for those structures. Before being issued Permit Number VO-423, Petitioner was required to pay an administrative fine. Among other things, Permit VO-423 approved an already constructed wooden deck on the eastern side of the home which approximated 840 square feet in size. Petitioner was also given approval for a wooden walkway with stairs that provided access to the beach. On June 1, 1995, Petitioner filed a second CCCL application with DEP to add a 20-foot first and second story addition with a deck to the south side of the home. After reviewing the application, on November 9, 1995, DEP issued CCCL Permit Number VO-627 authorizing the scope of work identified in the permit application documents. Notwithstanding the limited amount of work authorized by the permit, Petitioner constructed a third story addition to his home. He also removed the original wooden deck on the eastern side of the home, and he constructed spread footers and a foundation on top of the rock revetment for a new and much larger deck. The new deck is approximately 2,100 square feet, or more than 1,200 square feet larger than the original permitted deck. In its present state, the home is approximately 5,600 square feet, and the existing eastern deck is larger than any permitted deck on any other single-family home in Volusia County. On September 9, 1996, DEP discovered the third story addition and the much larger wooden deck with appurtenant structures. Presumedly at the behest of DEP, on November 22, 1996, Petitioner submitted an application for an after-the-fact modification of CCCL Permit Number VO-627 to authorize the previously completed, unauthorized work. On April 23, 1997, DEP issued CCCL Permit Number VO-627 After-the-Fact. The permit approved the third-story addition to the home together with a 10-foot wide wooden deck on the seaward side of the entire third story and a 12-foot wide wooden deck on the landward side of the third story. DEP denied, however, authorization for Petitioner's new wooden deck on the first floor with a tiki hut and sundeck on the ground those structures violated Rule 62B-33.005(4)(e), Florida Administrative Code. That rule requires that any new construction seaward of the CCCL "minimize the potential for wind and waterborne missiles during a storm." The issuance of the proposed agency action prompted Petitioner to initiate this proceeding. On November 3, 1997, DEP entered a Final Order directing Petitioner to pay a fine because he illegally constructed structures seaward of the CCCL. The order was never appealed, and thus the time to challenge the order has elapsed. As of the date of hearing, Petitioner had not paid the fine, and a statutory lien has been placed on the property. The Storm Surge Elevation at this site for a 100-year storm event is 10.7 feet N.G.V.D. The Breaking Wave Crest- Elevation for a 100-year storm event at this site is 14.9 feet N.G.V.D. Part of the new eastern deck is located below an elevation of 14.9 feet N.G.V.D. The builder who constructed the additions, Edward Robinson, characterized them as "above average to superior" in quality. To minimize the possibility of the deck washing away during a storm event, he used the "best" nails, bolts, and concrete available. In addition, the new decking was rested upon concrete footers for support. The footers, however, are on top of a rock revetment, and Robinson conceded that such footers are not as stable as a pile foundation. Petitioner used coquina rock (with a low unit weight) for his revetment. It was established that the rocks on which the footers rest are not permanent, and they can shift during a large storm event. In fact, shifting can occur even during a ten-year storm, and there will be a total failure of the revetment during a thirty-year storm event. Once the stones move, an erosion process begins, and the deck will fail. The accompanying high winds will then lift the wooden debris in an airborne fashion. Depending on the strength of the storm, the airborne debris will be a threat not only to Petitioner, but also to his neighbors. Therefore, it is found that the existing construction for the eastern deck does not minimize the potential for wind and waterborne missiles during a storm, and it thus violates Rule 62B-33.005(4)(e), Florida Administrative Code, as alleged in the proposed agency action denying in part the permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's application for an after-the-fact amended CCCL permit to construct an expanded eastern deck with a tiki hut and sun deck on his property at 5917 South Atlantic Avenue, New Smyrna Beach, Florida, and approving the application for the structures previously authorized by the Department in its Final Order issued on April 24, 1997. DONE AND ENTERED this 11th day of May, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1998. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Thomas H. Dale, Esquire Post Office Box 14 Orlando, Florida 32802 Thomas I. Mayton, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
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.
Findings Of Fact On 24 July 1979 the Board of County Commissioners of Palm Beach County adopted Resolution R-79-887 petitioning the TIITF to establish an erosion control line (ECL) extending from South Lake Worth Inlet to the northern city limits of Delray Beach in conjunction with a beach restoration project in the same area. The project as then proposed encompassed extension of the south jetty at the Inlet 170 feet, construction of eight groins at 400-foot intervals commencing just south of the Inlet, and widening the beaches by 500 feet with 150 feet above the mean high water and 350 feet below mean high water, for a distance of approximately 4.8 miles. The restoration project is proposed to be accomplished with sand from a borrow area located approximately one-half mile off shore. The project is designated "Ocean Ridge-Briny Breezes" beach restoration project. SLWID objected to the project and, following conferences between Palm Beach County, SLWID and DNR the County amended its project to exclude property owned by SLWID from the ECL and beach restoration projects with the restoration of the beach to commence 300 feet south of the Inlet and continue for 2.6 miles to the town of Briny Breezes. Extension of the jetty and installation of groins were deleted. Palm Beach County's proposed beach restoration project was authorized by the U.S. Congress and the U.S. Army Corps of Engineers in House Document 164 (Exhibit 5). The proposed "Ocean Ridge-Briny Breezes" beach restoration project was designed in accordance with the criteria set forth in Exhibit 5. The project is designed to restore the severe beach erosion that has occurred in the 2.6-mile project area and to provide the affected uplands protection against the ten-year design storm event. The ten-year design storm event implies a 3.8-foot storm surge with up to eight-foot waves superimposed thereon. The proposed ECL has been surveyed by Palm Beach County along the mean high water line in the proposed area. Over 60 percent of the ocean front property owners have approved the establishment of the ECL in conjunction with a beach restoration project by executing letters of consent. Following notice by DNR a public hearing was held on February 13, 1980, to receive evidence relative to the necessity and propriety of the proposed beach restoration project and the proposed location of the ECL. The Hearing Officer's report (Exhibit 28) concluded that there is a definite need to restore the proposed area where severe beach erosion has occurred and the establishment of the ECL would accomplish the purpose stated in Section 161.161, Florida Statutes. Approval of the project was recommended. The staff of DNR approved the project and prepared the agenda item for the next meeting of the TIITF in which this project was to be considered for final approval. Prior to this meeting of the TIITF, SLWID filed its initial Request for Formal Proceeding and the item was removed from the TIITF agenda and referred to the Division of Administrative Hearings. The beach erosion in the project area has been documented by Palm Beach County, DNR and the U.S. Army Corps of Engineers. Much of the erosion in the northernmost mile of the project has involved the beach above high water, as well as the offshore beach, while the erosion in the southern 1.6 files of the project has predominantly been offshore. During the period 1955-1981 approximately 1.6 million cubic yards of sand has been lost in the project area. Beach erosion determinations are made by calculating both onshore and offshore changes in the beach profile. Significant offshore erosion will lead to onshore beach recession by storm-generated waves. A gradually sloping beach is a natural absorber of wade energy and the most effective. Since maximum wave height is a function of the depth of the water, waves rapidly dissipate when they reach shoal water. With offshore erosion and the resulting deeper water near the shore, incoming waves can be higher and will impact on the upland area with greater force than would occur with a gradually sloping beach. There is a net annual littoral drift of 200,000 cubic yards of sand southward in the project area. Prior to the construction of the Inlet this drift replaced sand lost during storms, thus creating a dynamic beach which receded and was augmented from time to time. The installation of the jetties disrupted this littoral flow and caused the sand to build up on the beach north of the jetty while starving the beach south of the jetty. This problem was partly corrected by the erection of a sand transfer plant on the north jetty which pumped some of this sand across the Inlet to the beach south of the Inlet. The sand transfer plant was not operated during WWII due to the fuel shortage and severe erosion occurred in the project area. Following WWII the sand transfer plant was replaced in operation, sand was dredged from the Inlet and deposited on the beach south of the Inlet and the beach in the project area was largely restored. In 1967 the north jetty at the Inlet was extended and the sand transfer plant was moved eastward some 130 feet. This plant is a fixed plant consisting of a suction line on a boom which dredges sand to be pumped south of the Inlet only from the area that can be reached by the boom. Although capacity of the plant is adequate to pump the sand needed to replace in the project area that sand intercepted by the jetty, due to the limitation of the plant to reach a larger area there is insufficient sand available for the plant to pump to capacity. As a result, even if the plant operated all the time and there was sand available to pump, there would still be a net loss of sand in the project area (Exhibit 21). During recent winter storms property-threatening beach erosion has occurred to beach property in the project area. Some of the property owners have erected bulkheads and seawalls and others are proceeding with plans to do so. In some places in the north portion of the project area there is no exposed beach at high water. In the southern portion of the project area the offshore erosion will, if left to continue, result in severe damage and loss of upland beach if impacted with seas commensurate with a ten-year design storm event. This erosion, both on and offshore, will, if uncorrected, result in a calculated total of 134 feet of beach recession for the ten-year design storm event. This could result in the inundation of S.R. A1A, which runs near the beach in the northern portion of the project area. S.R. A1A is the primary north-south highway east of the Intracoastal Waterway and the evacuation route to the bridges to the mainland in the event evacuation of the beach is necessary in a hurricane situation. The proposed beach restoration project is designed to replace sand lost offshore and onshore erosion in the the project area and provide a sloping beach to absorb wave impact. It will not accelerate erosion. The proposed restoration of the beach will protect property and structures in the project area against the forces associated with a ten-year design storm event. Addition of the 1.5 million cubic yards of sand in the project area will result in some sand infiltration of the Inlet. This was calculated at 8,000 cubic yards the first year, 6,000 cubic yards the second year and 4,000 cubic yards per year thereafter. This will result in insignificant shoaling in the Inlet but will require infrequent maintenance dredging. It will not adversely impact the tidal prism in the Inlet or materially increase the maintenance of the Inlet. Heavy storms result in immediate loss of sand from the upland beach. Most of this sand is deposited in the offshore beach and is returned to the upland beach by the normal action of waves and tides. Approximately ten percent of the sand so removed from the upland beach is not returned but is lost.
