The Issue The issue for determination at the final hearing was whether the Petitioner Blaha possessed the requisite standing to maintain this action and if so, whether the Applicant Aquarina Developments, Inc., established by a preponderance of the evidence entitlement to a permit from the Coastal Construction Control Line ("CCCL") which would authorize construction of the following: (1) twelve above-ground balconies extending five feet over the CCCL; (2) two roof overhangs extending approximately one foot over the CCCL; (3) two dune walkovers and four decks providing elevated beach access; and (4) a temporary fence extending no more than five feet beyond the CCCL. At the final hearing, the Respondent Aquarina Developments, Inc., (hereafter "Aquarina" or "Applicant") offered Respondent's Exhibits 1-16, which were admitted into evidence. Edward Fleis, Howard J. Teas, Bert Leltz and Ross Witham testified on behalf of the Respondents. Peter Pritchard, Rob Lee and Georges Blaha testified for the Petitioner. Additionally, public comment was taken as provided at Section 120.57(1)(b)(4), Florida Statutes. A Proposed Recommended Order has been submitted by the Respondent Aquarina Developments, Inc. To the extent that the proposed findings submitted by Respondent are not reflected in this Order, they are rejected as unsupported by the weight of credible evidence or as being immaterial to the results reached.
Findings Of Fact By application No. 775-020.61 filed on July 1, 1981, Respondent Aquarina requested a coastal construction permit for construction of portions of twelve cantilevered balconies, two roof overhang sections, a temporary construction fence, four elevated wooden decks, and two dune crossovers, all seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida. The purpose of the proposed structures is to enhance utilization of the beach by residents of Aquarina's PUD located between the Atlantic Ocean and Mullet Creek, a tributary of the Indian River in South Brevard County, while at the same time inhibiting the deleterious effects of unrestrained pedestrian and vehicular access across the beach dune on the property. Respondent Aquarina's project is located on the barrier islands separated from the mainland by the Indian River, thirteen miles south of Melbourne and five miles north of Indian River County. Aquarina proposes to develop a condominium community approved as a PUD by Brevard County, with a projected population of 3,400 persons including 1,600 residential units, a commercial area, and 500 hotel rooms. The project includes at least two condo- mini urn buildings located entirely landward of the CCCL except for the following specific portions: Twelve cantilevered balconies ex- tending approximately five feet beyond the CCCL but not touching the ground; Two roof overhang sections extending approximately one foot beyond the CCCL; Two beach-dune walkover structures to be constructed a maximum of seventy- five feet seaward of the CCCL, which are to provide controlled beach access; Four elevated wooden observation decks constituting integral parts of the walkover structures; A temporary construction fence extending no more than five feet beyond the CCCL. On or about November 20, 1981, the Department indicated its intent to recommend to the Executive Director the issuance of the Applicant's coastal construction permit. After the granting of a requested extension of time, Petitioner Blaha filed objections and a Petition for the Initiation of Formal Proceedings under Section 120.57, Florida Statutes. The Petition raised three issues: Whether construction of the proposed minor structures seaward of the CCCT would harm sea turtles inhabiting the area at issue; Whether a new CCCL should have been set based on changing conditions in the area; Whether the additional shading caused by the proposed structures would harm the dune vegetation system. At the beginning of the hearing, the Hearing Officer heard argument and received evidence on the issues raised by the Motions to Dismiss filed by the Department and the Applicant. The Respondent's Motions raised three issues: Whether the Petitioner had standing to initiate this cause; Whether the alleged impact that the Applicant's proposed coastal construction would have on sea turtles lies within the jurisdiction of the Department and the Hearing Officer under Chapter 161 of the Florida Statutes; and Whether the exact configuration of the CCCL is a proper subject for consi- deration at a hearing challenging the proposed issuance of a coastal construction permit. Petitioner Blaha admitted that he did not live on the beach at issue and in fact lived on the west side of State Road A1A, three miles to the north of the Applicant's proposed project. The Petitioner stated that he was the Director of the Space Coast Branch of Friends of Animals, an environmental organization concerned about wildlife, although not representing the organization in this proceeding, and that he had a general interest in protecting the beach from erosion, a problem affecting everyone on the barrier island. In response to the argument that Petitioner Blaha had no special interest differing in kind from the interests of the general public, the Petitioner alleged that he runs on the beach and observes the sea turtles, arguing that this evinces a more than average interest in protecting the beach and its wildlife. The Hearing Officer also heard argument on whether the Department has jurisdiction to consider potential impacts on the nesting habitats of sea turtles from proposed coastal construction, under Chapter 161, Florida Statutes. Petitioner Blaha urged that although Section 161.053, Florida Statutes and the rules promulgated thereunder do not address sea turtles and their protection, the statute should be so interpreted. The Department responded that any jurisdiction it may have over sea turtles would be reposited in its Marine Resource Division, not in the permitting procedures for a coastal construction permit. In addition, federal laws protect endangered sea turtles, and the federal government has primary jurisdiction over the regulation of the nesting habitats of such sea turtles. Similarly, the Applicant and the Department pointed out that the Petitioner's criticism of the placement of the present CCCL falls outside the scope of a hearing on the issuance of a coastal construction permit, since Section 120.54, Florida Statutes provides for rulemaking proceedings for those attempting to change a rule established CCCL and Rule 16B-33.10, Florida Administrative Code, contains provisions for CCCL revisions or modifications on application of a riparian owner of property at or on the CCCL. Petitioner Blaha is not a riparian property owner and this was not a proceeding under Section 120.54, Florida Statutes. Respondent Aquarina established that it had taken and would continue to take all reasonable actions necessary to ensure the protection of sea turtles that inhabit the site through public relations campaigns and public advertisements to educate the public and especially the residents of the PUD and through architectural design efforts and dareful construction practices that will limit the impact of the proposed development on sea turtles and their nesting habitats. Moreover, to the extent that the development might have an impact on sea turtles, the source of the impact would not primarily be the structures at issue in these proceedings, but the buildings, parking lots, and other human habitation lying landward of the CCCL. The proposed temporary construction fence to be placed five feet beyond the CCCL will help conserve the dunes by limiting the potential impact of construction, and the Respondent Aquarina has agreed to restore that affected area to its natural state upon the completion of construction. Most importantly, the proposed dune crossovers will protect the dunes from the destruction that is occurring in the dunes to the north of the project and on the project site itself because of unrestrained pedestrian and vehicular traffic over and/or through the dunes and the accompanying destruction of dune vegetation in those areas. The dune crossovers are wooden walkways on raised pilings designed to have as little contact with the dunes as possible, with railings to restrain pedestrians from straying away from this direct access from the condominiums to the beach. The crossovers will make it unnecessary and undesirable for residents and visitors to create alternative foot paths through the heavy dune vegetation to the beach. Coupled with the educational program already being implemented by Aquarina, the dune crossovers should help to conserve the dunes. The Respondent Aquarina established that the incremental shading caused by the proposed roof overhangs extending about one foot beyond the CCCL and the cantilevered balconies extending approximately five feet beyond the CCCL would not significantly add to the shading from the buildings themselves, which lie entirely landward of the CCCL. The evidence showed that even the impact of the shading from the landward buildings would have no significant impact on the dune vegetation system or increase the rate of erosion or deterioration of the dune. See Rule 16B-33.02(23)(b), Florida Administrative Code. The additional impact from the minor structures for which the Respondent Aquarina seeks its permit should be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Department of Natural Resources, through its Executive Director, grant the requested construction control permit to the Applicant Aquarina Developments, Inc., subject to the conditions stated in the proposed permit (No. BE-80), the draft of which was attached to the Department's letter of November 20, 1981, notifying Petitioner Blaha of the Department's intent to issue the requested permit. DONE and ORDERED this 25th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1982. COPIES FURNISHED: Georges Blaha 280 Flamingo Drive Melbourne Beach, Florida 32951 Deborah A. Getzoff, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Clifford A. Schulman, Esquire GREENBERG TRAURIG ASKEW HOFFMAN LIPOFF QUENTEL & WOLFF, P.A. 1401 Brickell Avenue Miami, Florida 33131 Henry Dean, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Executive Director Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303
The Issue Whether 1800 Atlantic Developers is entitled to a DER fill permit and water quality certification for the creation of a sand beach, approximately 500' long X 100' wide, requiring placement of 2,620 cubic yards of fill, 2,200 yards of which would be waterward of mean highwater (MHW), off Key West, Florida.
Findings Of Fact The Proposal By its initial application in April 1985, 1800 Atlantic proposed to place 4,100 cubic yards of fill (manufactured sand) along approximately 460 feet of eroded shoreline facing the Atlantic Ocean and fronting its 168-unit condominium (still under construction) in Key West, Florida. In connection with this project, 1800 Atlantic also proposed a 200 foot jetty at the east property line; a second and smaller jetty (if needed) at the west property line; a 400 foot long (10' high and 20' wide) fishing pier on the western property line; and a 50 x 50 foot art display platform seaward of the new beach. Approximately one and one-half acres would be filled of which 0.9 acres would be below the MHW line. The "proposed use" for the new beach was designated "private multi- dwelling." By affidavit Atlantic 1800 certified that it was record owner, lessee, or easement holder of the project site. 1/ (Atl.Exh.1) On May 7, 1985, 1800 Atlantic revised its application by submitting a new plan view to Teryl Kranzer, DER's field biologist. The modification tapered the beach fill into the shoreline toward the western property line and reduced the size of the westernmost jetty. (Atl.Exh.4) On May 10, 1985, DER sent a "Completeness Summary" to 1800 Atlantic, asking for additional information to complete the application. (DER Exh.5) On June 18, 1985, 1800 Atlantic responded to DER's Completeness Summary by submitting the additional requested information to Douglas L. Fry, Environmental Supervisor of DER's South Florida District. Revised drawings were submitted eliminating the east jetty from the project. The volume of beach fill material was indicated as 2620 cubic yards--420 above MHW, and 2200 below MHW. (Atl.Exh.5) On July 1, 1985, DER sent another Completeness Summary to 1800 At1antic seeking still more information to make the application complete. (DER Exh.6) t 20, 1985, 1800 Atlantic supplied the additional information and modified its proposal by eliminating the art display platforms the fishing pier and the west jetty. The beach fill was also modified by tapering the fill from the corner of the existing seawall at the east property line into the existing shoreline on the west property line. Total beach fill volume was shown as 2700 cubic yards--300 above MHW and 2200 below. The proposed dry beach extended 70 feet seaward (the June 18, 1985 submittal showed an 80 foot wide beach) and the toe of the fill extended 100 feet seaward of the MHW line. In response to DER's inquiry about public access, Edward Swakon, 1800 Atlantic's consulting engineer, stated: will be no provision made to assure perpetual public access to the project area. As we previously stated, the applicant has no intentions of prohibiting public access, however, you should be aware that the appli- cant is the owner of the submerged land and that no guaranteed public access is assured. (Atl.Exh.7) Mr. Swakon, on behalf of 1800 Atlantic, then addressed each of the permitting criteria of Section 403.918(2)(a), Florida Statutes (1985), though contending that they did not apply to the project: project will not affect the public health, safety, welfare or the property of others. On the contrary, as a result of this project the tax base of the City of Key West will be improved and therefore benefit the residents of the community. The beach fill will provide an added degree of protection to the upland development, thereby reducing the potential claims to the Federal Flood Insur- ance Program. In addition, the project provides a beach for 168 residents of the upland development and their many guests. This reduces the impact on the already over crowded public beaches in Key West. project will not adversely effect the conservation of fish and wildlife within the immediate vicinity. The area to be filled is devoid of significant vegetation. It is our opinion that the placement of this fill would result in an imperceptible impact to the marine resources. There are no endan- gered or threatened species or habitats located within the area to be filled. project will not adversely effect navigation, the flow of water or cause harmful erosion or shoaling. On the contrary, the placement of this material will improve the overall shoreline conditions. The filling will not cause any erosion or shoaling in the vicinity. the fill area is barren, it is our opinion that this project will have no impact on fishing, recreational values and/or marine productivity in the vicinity of the project. project will be permanent in nature will be no impact to historic or archeological resources. Id. t 26, 1986, DER received the August 20, 1986 submittal of 1800 Atlantic and the application became complete. r 5, 1985, the District Manager of DER's South Florida District in Fort Myers noticed his intent to deny the permit application. According to Douglas Fry, DER's supervisor of the District's dredge and fill section, the denial was based on information that he had received: I expected that the project would degrade both general water quality standards as established in the intent, including turbidity, biological integrity, transparency, other things noted as well as degradation of fish and wildlife standards as encompassed in part of the public interest requirements; I felt that the project would be contrary to the public interest. (Tr.546) the months that followed, 1800 Atlantic pursued the matter with various DER personnel, including Mr. Fry; Ms. Kranzer, the District biologist who performed the initial biological and water quality appraisal for the project; Steven J. Fox, Director of the Division of Environmental permitting, and William Hennessey, Deputy Director, both located in Tallahassee and supervisors of district permitting operations 2/ and Kenneth L. Echternacht, a DER hydrographic engineer in Tallahassee. Negotiations ensued, various modifications were proposed. Ms. Kranzer, the DER field biologist who had conducted the initial environmental evaluation in May 1985, and had recommended denial in September 1985, never submitted a new report evaluating the subsequent modifications, although she did discuss changes with other DER staff members. At the time she evaluated the project, it had already been modified once--cubic yardage had been reduced; the fishing pier, art platform and both jetties had been eliminated. t of negotiations between DER and 1800 Atlantic, DER reversed its initial position and, on March 27, 1986, gave notice of its intent to issue a permit for the revised project. The proposed permit incorporated changes agreed to by 1800 Atlantic. These changes required that the waterward 1/3 of the fill volume consist of coarse sand or sand aggregate no finer than 2mm in diameter; that approximately 10 percent of the sand range in size from 2mm to 6mm in diameter; and that 1800 Atlantic conduct a seagrass monitoring program for the duration of the permit. These changes were meant to resolve DER's concern that the fill material might migrate seaward and smother offshore seagrass beds. The area below the MHW line to be covered by the fill (approximately 1/2 acre) remained the same as indicated in the last drawings submitted by 1800 Atlantic on August 20, 1985. (Atl.Exh.7) l 1985, the City (of Key West) and the Coalition (Florida Keys Citizens Coalition) timely requested an administrative hearing to challenge proposed issuance of the permit. R had announced its intention to grant the permit, Mr. Fry, DER's District environmental dredge and fill supervisor continue to have concerns about the project: . . . I did not believe that the project still was clearly in a public interest, and that I did not see that the project had been modified enough to eliminate the destruction of aquatic habitat. I was concerned that the project did not encompass any mitigation to offset those, that damage. I was concerned that we had not received reasonable assurances that the project was clearly in the public interest. I was concerned that we had not received reasonable assurances that the beach fill would stay in place, thereby contributing to future degradation, and I had experienced some concerns regarding cumulative impact. (Tr.547) These concerns prompted representatives of DER and 1800 Atlantic to meet in Tallahassee on Friday, June 20, 1986. This was three working days prior to final hearing. Neither the City nor the Coalition were aware off or invited to, the meeting. s meeting, DER and 1800 Atlantic agreed to certain additional project modifications. One addition required construction of a small terminal jetty or groin on the western end of the project to stabilize the fill and replace rocky habitat to be covered by the fill. The specifications for this groin were not subsequently calculated or submitted at hearing. 1800 Atlantic proposes to "field engineer" the groin within these parameters: It would be designed to contain the fill or it would be designed in the field when the material was in place and would be designed with specifications that the rocks really didn't come any higher than the fill itself and would be adjusted so as to allow for some movement of sediment back and forth between it so as to minimize any down drift concerns that might exist. (Tr.121) l hearing, DER and 1800 Atlantic reduced this addition to writing as one of several proposed conditions to the DER permit. These conditions, ostensibly providing precision and specificity to the project changes described at hearing, were received over objection as part of DER's post-hearing Exhibit No. 7. The particular condition describing the groin-type structure to be built at the west end of the beach fill provides in pertinent part: Prior to construction of the beach fill, the permittee shall submit approximately dimen- sioned sketches of the structure, for review, modification as necessary, and approval by [DER]. (DER Exh.7) DER and 1800 Atlantic thus propose that specifications and drawings for this coastal structure be submitted, reviewed, and approved sometime in the future, after the requested permit is issued. The need for specifications is acknowledged, yet submittal and review is put off until after a permit is issued. Hence, detailed specifications for the structure remain unknown or ill- defined; scrutiny of those specifications by the City and Coalition is threatened; APA 3/ processes are frustrated. e which DER and 1800 Atlantic agreed to at the Friday meeting was to taper the toe of the fill on the western one-half of the fill area to more closely match the contour of the existing shoreline. 1800 Atlantic's engineer sketched this change, free-hand, while testifying at final hearing. Hence, it also remains ill-defined and uncertain. Like the groin, this change was reduced to writing and received as part of DSR post-hearing Exhibit No. 7. And like the groin, before construction but after the permit is issued, 1800 Atlantic is to submit a "fully dimensioned and scaled plan view of the revised beach fill limits for review, modifications as necessary, and approval" by DER. (DER Exh.7) The procedural shortcomings of such a procedure have already been noted. e which DER and 1800 Atlantic agreed to at the Friday meeting concerned off-site mitigation. As explained at final hearing, 1800 Atlantic would purchase an upland site equal in size to the area to be covered by the proposed fill and excavate it to tidal or subtidal elevations. (The upland mitigation site could be located as far as Big Pine Key (35 miles away) or elsewhere in the Florida Keys.) If this mitigation measure could not be accomplished prior to placement of the fill, a bond to assure its performance would be posted with DER. But this mitigation measure, when later reduced to writing and received as post-hearing DER Exhibit No. 7, became something quite different. The post-hearing exhibit specified that the upland mitigation site would be at least twice the size of (not equal in size to) the proposed one-half acre fill project. Moreover, the mitigation site was to be inspected and approved by DER prior to placement of the fill. If the mitigation site was not approved prior to filling, a bond (of unknown amount) would be posted to assure purchase and the excavation. With this condition, as with those already mentioned, critical features were left to future review and approval by DER, and so placed beyond the scrutiny of the other parties to this proceeding. The specific nature and location of this mitigation site is not known; neither is the amount of the bond to be posted if filling precedes mitigation. Whether the mitigation will, in fact, offset any loss of plant, fish, and wildlife habitat eliminated by the proposed fill is, likewise, unknown. Finally, the written condition, to the extent it doubles the size of the mitigation site presented at final hearing, is rejected as an unauthorized attempt to present new and additional evidence after the close of evidentiary presentation. (DER Exh.7) s other on-site mitigation measures were agreed to at the Friday meeting. As explained at hearing, algae-covered rocks within the fill area would be moved to a non- vegetated part of the submerged land; a Halodule grass bed within the fill area would be relocated waterward of the fill area; the toe of the proposed fill would be staked prior to construction; and fill placement would occur only during periods of low tide. When later reduced to writing as a post-hearing exhibit, these conditions generally conformed to their description at final hearing. Effect of Fill Project on Fishing or Recreational Values; Navigation; Marine Productivity; and Conservation of Fish and Wildlife t site is located on the southern shoreline of Key West on a narrow strip of beach known as Rest Beach, which includes a 2900 foot shoreline between Bertha Street to the east and White Street Pier to the west. The pier, a 950-foot long solid fill structure, is located 2400 feet west of the project site. Directly west of White Street Pier is another public beach (1400 feet long) known as Higgs Beach. With the exception of the submerged lands at the project site, to which 1800 Atlantic asserts titled all of the submerged lands adjacent to Rest Beach are publicly owned. (Atl.Exh.2-I; DER Exh.4) s at the project site are part of the navigable open waters of Hawk Channel and the Straits of Florida (Atlantic Ocean), designated by DER as Class III waters. On May 8, 1985, the waters in the area of the project (within the boundaries of the Florida Keys Special Waters), were also designated (by rule) as "Outstanding Florida Waters"--thereby imposing DER's most stringent level of protection from degradation of water quality loss of fish and wildlife habitat, and reduction in marine productivity. (Rule 17-3.041(4)(i); DER Exh.4) t site is bordered on the east by Bertha Street, which ends at a seawall facing the ocean. South Roosevelt Boulevard begins at the end of Bertha Street and parallels the shoreline east of the site. A public boat ramp is located on South Roosevelt Boulevard just east of Bertha Street. Just east of the ramp is a long curving jetty or groin at the southern end of a 3350-foot long public beach known as Smathers Beach. This public beach is within a few hundred feet of the project site. (Atl.Exh.6; DER Exh.4) o the west of the project site is an undeveloped parcel of land consisting largely of mangroves separated from the ocean by a sandy berm. Although the berm has been overwashed and tidal connections have opened in the past, no tidal connection was apparent at the time of final hearing. In some places the berm may have been artificially altered west of this undeveloped wetland site. Other residential condominiums are located on uplands to the west. d directly landward to the project site is a 168-unit, four story L-shaped condominium owned and developed by 1800 Atlantic. Recreational facilities, such as a swimming pool and club house, overlook the ocean. A third wing of the condominium (parallel to and abutting Bertha Street) was still under construction in July, 1985. s not the first time a permit has been sought to create or restore a beach at the site. In 1979, the trusteeship of Eugene J. Weiss, a 1800 Atlantic's predecessor in title, applied to DER for a similar "beach restoration" permit. He proposed to place (between groins to be constructed at opposite ends of the property) 1750 cubic yards of sand waterward of MHW and 2500 cubic yards landward. The approximate area to be filled was .59 acres waterward of MHW, .80 acres landward. Curtis Kruer then an environmental specialist with DER, performed a biological and water quality appraisal of the project and recommended denial because the fill would bury vegetated benthic communities that provide habitat and nutrients to marine organisms which, in turn, become a food source for a large number of juvenile fish and shellfish. He also was concerned about the short and long-term cumulative biological effects of a number of such projects on the shoreline of Key West. In April 1982, Eugene Weiss withdrew the application. (Coalition Exh. 3) s at the project site are shallows as the bottom slopes gently seaward. At mid-tide, depths of 1.5 feet are found 100 feet seaward of the MHW line. At low tide, the entire fill area is exposed. Even at high tide, water depths in the fill area range from zero (at MHW line) to approximately two feet at the toe of the fill. Because of the shallow depths, the fill project will have no significant adverse effect on navigation. (DER Exh.4; Atl.Exh.5) f stacked but unstabilized railroad ties separates the upland area (where the condominium and associated structures are located) from the beach slope. The narrow, graveled beach slope contains a mix of sand, rock, rubble and beach plants. Several distinct zones of seawrack are found on the beach slope: Thalassia at the lower portion of the beach face and Sargassum at the base. (Atl.Exh.15, 16) t 100 feet seaward of the MHW line, which includes all of the fill area, consists of small rubble embedded with calcareous sediments. The rubble consists of chunks of limestone rock and pieces of concrete less than two feet in size. Scattered among the rubble is anthropogenic debris such as bottles, asphalt and cast iron pipe. (Tr.130) f the limestone rock and rubble found on the submerged project site are residential lag from a fill at the site prior to or during the early 1960s. The boundaries and extent of the prior fill have not been established. It appears, however, to have consisted of a mix of carbonate particles ranging from silt and clay to the rocks, rubble and coarse sand now found on the project site. The fill material on site is what remains from the earlier artificial fill. e rock and rubble in the littoral zone provide attachment sites for various green, brown, and red algae such as Laurencia, Caulerpa, Cymopolia, Digenia, Batoptiora, Padina, Halimeda, Neomeris and Congia. These algal species play a positive role in the marine environment. The near shore contains a coarse sandy-shell substrate. (DER Exh.4; Atl.Exh.16) f seagrasses grow on, and immediately seaward of, the fill site. These include Cuban shoalweed (Halodule wrightii) and turtle grass (Thalassia testudinum). Some patches of seagrass are found as close as 30 feet from the MHW line. 4/ Approximately 95 feet seaward, cuban shoalweed becomes dominant; turtle grass coverage increases as one travels seaward from the site. Some cuban shoalweed patches are dense and healthy, with blades sometimes two feet in length. There is a patch of cuban shoalweed on the eastern portion of the project site. Although 1800 Atlantic has agreed to dig-up and transplant this seagrass to unvegetated portions of its property seaward of the toe of fill, the success of such a transplanting is not assured. Unvegetated bottoms can usually be explained by environmental factors. (DER Exh.4; Atl.Exh.16) s communities play a beneficial role in the marine environment. They provide habitat, feeding, and nursery areas for aquatic organisms. They supply primary nutrients as well as perform nutrient uptake and removal functions. The proposed fill would adversely impact the seagrass communities on the site--by smothering or burying any seagrasses not successfully transplanted. Moreover, the site, once converted to sandy beach for the use of owners and guests of the adjacent condominiums, could no longer support seagrass communities. r shore zone of seagrass and algal communities, adversely impacted by the proposed fill, constitutes a productive shallow water habitat that supports a variety of juvenile fish and crustaceans. These include hares, banded tulip shells, nerites, xanthid crabs, blue crabs, lizard fish, barracuda, parrotfish, killifish, needlefish, grey snapper, sergeant major, tomtates, hermit crabs, shore crabs and blue crabs. c macrofaunal species and diverse species of crustaceans live in the sediment of the in-shore rocky algae and seagrass communities. These species include Scyphoproctus, Notomastus hemipodus, Capitella capitata, Pulliella, Capitomastus, Capitellidae, Chaetozone, Tharvz annulosus, Caulleriella, Carilleriella bioculate, Glyceridae papillosa, Axiothella, Ceratonereis, Nereis Succinea, Nereis Rava, Nereis caudata, Onuphis magna, Protoariciinae, Proscoloplos, Cirrophorus lyriformis, Hasmineira elegans, Jasmineira bilobata, Fabricia, Augeneriella, Faebicola, Minuspio, Prionospio heterobranchia, Prionospio steenstrupi, Nerinides goodbody, Brania clavata, Exogone dispar, Exogone naidina, Odontosyllis, Sphaerosyllis labyrindiophia, Streptosyillis, Typosyllis hyalina, Typosyllis regulata, Typosyllis alternata, Typosyllis prolifera, Langerhansia cornuta, Langerhansia ferrugina, Syllida bansei, Terebella turgidula, Streblosoma hartmanae, Streblosoma abranachiata, Streblosoma, Pista palmata, Arca, Chjione caniculater, Tellina iris, Melita dintata, Elasmopus, Melito, Melita nitida, Rudilembordes, Dexamine, and Erichsonella filiformis. (Coalition Exh. 6) g at the site took place as recently as June 1986. Three petite ponar samples were taken in seagrass beds 150-160 feet seaward of the shoreline; three were taken in the rubble zone just seaward of the toe of the proposed fill; and two were taken in seagrass beds off nearby Smathers Beach. As measured by the Shannon Weaver Species Diversity Index, the level of species diversity in the rock rubble just seaward of the toe of fill was 2.19; in the seagrass beds farther offshore, 4.71; and in the seagrass beds off Smathers Beach, 4.76. A diversity of 4 is in the upper range of food habitat. Although diverse species of benthic organisms are found on the site, the level of diversity is substantially less than the high levels found in the thicker seagrass immediately seaward of the project site. (Atl.Exh.16) t Beach area (including the project site), provides a valuable habitat for migratory birds, wading birds, and shore birds. It is one of the last major stretches of uninterrupted shallow water bird habitat in Key West. Ms. Francis Hamer, a local resident and bird watcher for over 40 years, visits the area regularly. One of her favorite vantage points is on White Street Pier; from there, using a telescope, she observes birds feeding and wading along the Rest Beach shoreline. Although most of the birds she sees gather at the western end of Rest Beach, she has seen sandpipers, including the least sandpiper, twelve species of herons, including the yellow crowned night heron and the blue heron in the vicinity of the project site. When asked where would one go to see Sandpipers if the Rest Beach habitat was eliminated she replied, "I don't know of any other place in Key West." (Tr.645) Ms. Kranzer, the DER biologist, and Mr. Kruer, the U.S. Army Corps of Engineers' biologist, have visited the site many times over the years and observed numerous wading and shore birds in the area. Ms. Kranzer photographed eight herons in the fill area at one time. 5/ Mr. Kruer has observed the little blue heron, the great egret, the cattle egret, the white ibis and the laughing gull, numerous shore birds. The proposed fill would adversely impact this valuable feeding ground for birds. The shallow algae and rubble zone, which supports the crabs and marine organisms which nourish bird life, would be replaced with beach sand. It is also likely that increased recreational use of the beach would drive off bird life. e many natural areas typical to the Florida Keys which, as DER and 1800 Atlantic contend, are more valuable than the project site in biological productivity, and as nursery and feeding grounds for fish, marine life, and wildlife. Nevertheless, this fact does not negate the substantial benefits which the site now provides to juvenile fish, crustacenas, benthic marine organisms, and bird life. l placement of the fill will have no impact on mobile organisms able to retreat to safer waters. Benthic and other organisms on the site which are relatively immobile would be destroyed by the fill. The number killed would be a relatively small fraction of the total of such organisms along the Key West shoreline, and their loss--alone--would not affect the marine environment to an extent which is quantifiable. Effects of the Proposed Fill on Water Quality Standards; Public Health, Safety or Welfare; Significant Historical and Archeological Resources; Endangered Species or their Habitats d project will not adversely affect public healthy safety, or welfare; significant historical and archeological resources; or endangered species or their habitats. (Neither the City nor the Coalition presented any affirmative evidence establishing adverse effect.) l the project degrade or cause violations of DER water quality standards for Outstanding Florida Waters. See Rules 17-3.051, 17-3.061, and 17- 3.121, Fla.Admin.Code. Turbidity will be minimal, since filling would take place at low tide and turbidity curtains will be used. The loss of algae at the site would not cause significant degradation of water quality. (Algae covered rocks would be moved outside the fill area.) c contends that water quality would actually be enhanced by the proposed fill. The seagrasses seaward of the site have beneficial effects on water quality, but their sediment beds are shallow. 1800 Atlantic contends that the finer particles of its fill material, dispersed by waves, would provide needed sediment to the offshore seagrass beds. This ostensible benefit is problematic. The study performed to support this contention did not sufficiently investigate or explain how seagrass beds beyond the reach of nearby beaches (and their sediment) could flourish. Dense and healthy seagrass offshore has not been shown to be endangered due to shallow sediment. It is clearly less than certain that just the right amount (too much would smother, too little would have no effect) of just the right kind of fill (only the fines are needed, not the large or coarser particles) would be delivered to offshore seagrass by natural forces. Impacts on Erosion, Shoaling and Sand Migration h and shoreline at the project site are relatively stable and in equilibrium; no greater erosion is occurring than at other unfortified shorelines in the Key West area. The coarse material and rubble that line the bottom of the site act as a "natural seawall" or armor which prevents or slows down erosion. (Tr.249) Removal of the existing rubble, as proposed, would eliminate this "natural armor." (Tr.260) e in the vicinity at the site faces south to south- southeast. This exposure is relatively windward with respect to winter storms. Gentle prevailing east to southeast winds, however, produce low-energy waves that approach the shore and generate longshore currents moving east to west. (Atl.Exh. 15) f a shallow limestone ridge offshore the Atlantic shoreline in Key West, waves reaching the shore are ordinarily well-dampened. Although subject to storm and hurricane attack by high energy waves, the southern shoreline is characterized as "low-energy." (Atl.Exh.15) vicinity of the project site on the southern shoreline, there is no natural onshore supply of sediments to beaches from offshore. The beaches at Smathers Beach and at the project site (which have been narrowed by erosion over the last 25 years) are artificial, composed of limestone fragments derived from quarries. The fill was placed at both beaches sometime prior to 1962. s have undergone gradual erosion. Fine sand and silt from the beach material is carried seaward, with no natural offshore sediment to replace it. The proposed fill will provide, at least temporarily, an added degree of protection to the upland development by widening existing upland between the condominium and the sea. It will not, however, prevent continued erosion. Over time, it too, will be dispersed by wave action and longshore drift to shorelines to the west. The fill would also temporarily stabilize the public sidewalk and street to the east of the site, currently being undermined. Protection of the public sidewalk and boat ramp from erosion, however, is part of public road maintenance duties. c has neither alleged nor shown that its upland condominium, still under construction, is endangered by erosion or high-energy wave action. Nor has it shown that there are no reasonable methods of supplying an "added degree of protection" to the upland development, methods not requiring elimination of productive habitat for fish, marine life, and wildlife. s net east-to-west longshore transport of sediment along the southern shoreline of Key West. Two groins at Smathers Beach (to the east) and the nearby public boat ramp have, to some extent, interrupted the normal longshore sand transport from the east. As a result, the effects of erosion are more pronounced on the eastern portion of the site, causing a shoreline "discontinuity." Although the proposed fill would partially eliminate this discontinuity, it has not been shown that the discontinuity is a serious problem. While it may trap floating debris, this was not a significant problem in July 1985, when Ms. Krenzer, the DER biologist, inspected the site. Moreover, the proposed groin near the west property line (to stabilize the fill material) would--in itself--add a new shore discontinuity, and may cause more discontinuity to the west if it interrupts the normal longshore movement of sand. (DER Exh.4) s finer than 200 microns tend to move in suspension, while grains finer than 40 microns cause turbidity. Grains coarser than 200 microns tend to move along the sea bottom when sufficient wave or current energy is present. Analysis of onshore and offshore sediment indicates that not much material coarser than 200 microns is moving offshore into seagrass beds seaward of the project site. Most of the material larger than 200 microns found in the seagrass beds is being produced there naturally. d that the proposed fill would migrate seaward and smother offshore seagrasses, seeks a condition (to which 1800 Atlantic has agreed) requiring that the seaward one-third of the fill volume consist of coarse sand no finer than two millimeters in diameter. The evidence is insufficient, however, to eliminate the possibility that constant wave action could gradually pulverize the coarse limestone into smaller particles that, when dispersed, could smother seagrass beds directly offshore and southwest of the site. 0 Atlantic has selected fill material with settling characteristics compatible with the existing beach material on site, placement should not cause an increase in turbidity. Although 1800 Atlantic posits that just enough of the fine sediments would migrate seaward to nourish grassbeds, leaving the coarse material to migrate westward by longshore drift, these results are not assured. Winter storms and high energy waves could remove and disperse even coarse material seaward or pulverize it into smaller particles for wider dispersion. Dispersion of the coarser sand to the west by longshore drift could result in shoaling which would block periodic tidal connections which occur between the sea and the mangrove covered wetlands. n structure toward the west boundary--designed to stabilize and hold the fill material in place--may contribute to erosion to the west by interrupting natural longshore transport. The wisdom of such an artificial structure ("field designed" on-site), which may interrupt the natural longshore transport of beach sands, is doubtful. Even 1800 Atlantic's own experts criticize it. y 1982, the U.S. Army Corps of Engineers completed a "Feasibility Report for Beach Erosion Control" with an accompanying Environmental Impact Statement. This report proposed a beach restoration program on the southern shore of Key West consisting of construction of a level beach berm, four feet above MHW and 100 feet wide along the 3,000 foot length of Smathers Beach; and a beach 25 feet wide along 2,370 feet of shoreline east and 3,400 feet west of Smathers Beach. 1800 Atlantic's proposed fill falls within the boundaries of this proposed beach restoration program. y is the local sponsor of the beach erosion control project described in the Feasibility Report. As late as August 1985, the Mayor of the City sent a letter to DER's dredge and fill supervisor confirming the City's continued support for the overall beach renourishment project. Although 1800 Atlantic suggests otherwise, the City's support of a comprehensive publicly financed beach restoration project along its southern shores (which presumably would assure public access to the restored beaches) is not necessarily inconsistent with its opposition to a relatively small fill project undertaken primarily for the private benefit of the owners, guests, and tenants of an adjacent condominium. h 1981, the Governor of Florida expressed written support for the Corps of Engineers' beach restoration project, but recommended that, in order to protect the marine environment, "any future beach renourishment be done in an environmentally sensitive manner. (Atl.Exh.19) The Governor's endorsement of the public beach restoration program does not, however, equate to his endorsement of the particular and more limited private beach project at issue. Even if it did, a gubernatorial expression of support cannot supplant DER's duty to exercise its regulatory authority in accordance with Chapter 403, Florida Statutes (1985). h fill project proposed by 1800 Atlantic was designed to be consistent with the overall U.S. Army Corps of Engineers beach restoration project described in the Feasibility Report. It should be noted, however, that the Corps project was criticized by federal environmental agencies for adverse impact on seagrass beds and fish and wildlife resources. (Atl. Exh.19, Appendix 3.) c has already received a coastal construction permit for its proposed project from the Florida Department of Natural Resources ("DNR"). This permit, however, was issued by another state agency exercising regulatory authority under a different statute, with different criteria for issuance. Cumulative Impact e no similar applications for beach fill projects in the Lower Keys pending before DER, although inquiries have been made by a nearby landowner. least the last two years, DER has not issued a permit in the Keys for a fill project similar to the one proposed by 1800 Atlantic. l may be placed on submerged lands (not previously conveyed to private ownership) without the consent of the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund--the owner of sovereignty lands. The Trustees have not approved an application to place beach fill on sovereignty lands in the Florida Keys for the last three years. Nor are there any pending applications for approval to do so. (As already noted, except for the project site, all remaining submerged lands in the Rest Beach area are publicly owned.) h serves as the staff for and makes recommendations to the Trustees, has a general policy of opposing the creation of unnatural beaches in the Keys on publicly owned submerged lands. As stated by Casey Fitzgerald, Chief of DNR's Bureau of State Lands Management: [Mr. Fitzgerald] A. So in a general sense, our recommendations would typically be negative, unless shown for some public interest purpose that it should be otherwise. Q. By that latter comment, do you mean, in connection with, for example, an overall publicly sponsored beach restoration project? A. That would be one example, yes. (e.s.) (Atl.Exh.20; p.8) Whether the Proposed Fill Would be Clearly in the Public Interest y for a DER permit, 1800 Atlantic must provide "reasonable assurance that the project will be clearly in the public interest." Section 403.918(2), Fla.Stat. (1985). In deciding whether a project is "clearly in the public interest," several statutory criteria must be considered and balanced. The issue though broadly phrased--is fundamentally a factual one, and must be decided on a case-by-case basis. 6/ Section 403.918(2)(a) Fla.Stat. (1985). d in light of the seven statutory criteria, it must be concluded that the applicant has failed to show that the proposed fill would be "clearly in the public interest." t should not cause violations of water quality standards or significantly degrade state waiters. Neither should it adversely affect (1) the public health, safety, or welfare, or the property of others; (2) endangered or threatened species, or their habitats; (3) navigation or the flow of water; or (4) significant historical material and archaeological resources. Nevertheless, the project will adversely affect the conservation of fish and wildlife, fishing or recreational values, and marine productivity in the vicinity. The site, which would be permanently covered with beach sand, now provides viable intertidal marine habitat and a feeding ground for migratory, shore and wading birds. It supports numerous species of juvenile fish and crustaceans, a diverse benthic and algae community, and patches of seagrass which benefit water quality and enhance the ecology of the marine environment. This shallow water habitat, gently sloping to the sea from an extended unfortified shoreline, is a diminishing resource in Key West. The existence of other submerged areas which are more biologically productive and support an even greater diversity of marine life do not diminish the positive value of the undisturbed project site to the marine environment. r adverse environmental impacts could occur. The proposed groin could cause increased erosion on property to the west by interrupting longshore sand drift. Shoaling could block tidal connections which periodically occur in the adjacent mangrove wetlands. Fill sands, pulverized and dispersed seaward by hurricanes or violent winter storms, could smother offshore seagrasses. y for the fill project has been shown. Though erosion has occurred over the last 25 years, the shoreline is stable, in equilibrium, and protected by a "natural armor" of coarse material and lag rubble. 1800 Atlantic has neither alleged nor asserted that the structural integrity of its upland condominium (still under construction) is threatened. The proposed fill would widen the upland between the condominium and the sea, providing an added degree of protection. While this benefits the upland structures, it is a benefit which would seemingly result whenever a fill project converts submerged land (seaward of a structure) to dry upland. Further, no necessity for an expanded private beach has been shown since there is a convenient 3000 foot public beach within a few hundred feet of the site. n measures proposed by 1800 Atlantic are insufficient to offset the known and potential adverse effects. These measures are vague, ill- defined, and uncertain. The design of the groin is left to "field engineering;" the adequacy of other mitigation measures is left to future review and decision by DER. The specific location and nature of the upland mitigation site (to be converted to submerged lands) is unknown, as is the amount of the bond to be posted if the beach fill project precedes mitigation. n expanded beach would provide recreational benefits to the owners, guests and tenants of the upland condominium, it has not been shown that similar benefits would inure to the general public. 1800 Atlantic does not guarantee that the public will have access to the beach. (It asserts only that any right of access which the public may have will not be infringed.) 1800 Atlantic's affidavit of ownership, which must be taken as true, asserts ownership of the submerged lands presumable by previous conveyance from the Trustees of the Internal Improvement Trust Fund. It is entirely possible that 1800 Atlantic, as owner of the submerged lands and upland beach, could deny access to the general public. 1800 Atlantic has not shown that the general public has any existing right to enter upon and use the submerged lands and existing beach. By promising no greater access right than the public now has, and by failing to show that the public has any existing right to enter and use the submerged lands and shoreline, 1800 Atlantic has failed to demonstrate that its beach project would provide recreational opportunities to the general public. c benefit asserted by 1800 Atlantic is that the fill would eliminate an existing shoreline discontinuity, a discontinuity that has not been shown to be a significant problem. 1800 Atlantic would replace it with a new discontinuity created by a proposed groin at the west end of the property--a groin with uncertain effects on the shoreline to the west. Another claimed benefit is that needed sediment--of the correct quality and quantity--would be contributed to offshore seagrasses; but whether this would actually occur is uncertain. c also points out that its privately funded beach restoration project is consistent with and falls within the boundaries of a proposed public beach restoration project proposed by the U.S. Army Corps of Engineers, supported by the Governor, and sponsored by the City. Any public benefit to be derived from this consistency is also doubtful. It was not shown that the Corps of Engineer's project involving Smathers Beach and Rest Beach has been finally approved and funded, or when (if at all) it would take place. Federal environmental agencies have pointed out the adverse environmental effects of such a project. A main benefit of the Corps project--expanded beach recreational opportunities for the general public--has not been shown to be a benefit which would result from 1800 Atlantic's fill project. , 1800 Atlantic has not affirmatively shown that, on balance, its proposed fill would be clearly in the public interest. The fill would have significant adverse environmental impacts--some certain, others possible. Measures offered to mitigate these impacts are vague, ill-defined, and inadequate. While benefits would inure to private upland owners, guests, and tenants, benefits to the general public are illusive or inconsequential. No necessity for the project has been shown, alternate methods of providing additional protection to the condominium may be available. A Corps of Engineers' beach restoration project for the entire area has been proposed and studied. While such a project would have adverse environmental effects at the 1800 Atlantic site, increased beach recreational opportunities would benefit the general public. 1800 Atlantic has not shown that its beach project would confer a like benefit.
Recommendation Based on the foregoing, it is RECOMMENDED: that the application for a fill permit and water quality certification filed by 1800 Atlantic be DENIED, based on failure to provide reasonable assurances that the project is clearly in the public interest. DONE and ORDERED this 3rd day of September, 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 this 3rd day of September, 1986.
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue Coastal Construction Control Line (CCCL) Permit ES-540 to Bobby L. Warner, Joseph W. and Helen Belanger, and Donald Ray Stephens (Applicants) for structures seaward of the CCCL on Perdido Key in Escambia County, Florida.
Findings Of Fact Undisputed Facts Petitioners stated in the Pre-Hearing Stipulation and confirmed at the hearing that adverse impacts to marine turtles are not at issue in this proceeding. The Petition did not allege that the structures authorized by the Final Order are or would be seaward of the seasonal high-water line now or within thirty (30) years of October 2004. The Petition did not allege that the structures would interfere with public access. Project Description Applicants own two parcels of property comprising 1.19 acres on Perdido Key, Escambia County, Florida, between DEP monuments R-1 and R-2 (the Property). The DEP permit file indicates that the eastern parcel is owned by Bobby Warner and the western parcel is owned by Joseph and Helen Belanger. Portions of the Property extend from the south right-of-way of Perdido Key Drive on the north to the mean high-water line (MHWL) of the Gulf of Mexico on the south. There are two existing multi-family dwellings on the Property. The dwelling on the western parcel owned by the Belangers has two units, while the dwelling on the eastern parcel owned by Ms. Warner has four units. Their overall dimensions are approximately 51.2 feet by 54.4 feet for the easterly structure and 44.1 feet by 31 feet for westerly structure, not including decks or stairs. The seaward limits of the structures are approximately 285 feet and 303 feet landward of the MHWL. Applicants propose to demolish the two existing multi-family structures and construct a 15-unit, multi-family dwelling (the Dwelling) measuring 70 feet in the shore normal direction by 80 feet in the shore-parallel direction on piles with understructure parking, a 38.1-foot by 33.3-foot swimming pool on the seaward side of the Dwelling, a deck, a five foot wide dune crossover seaward of the Dwelling, a driveway and parking area of concrete pavers, and a dune enhancement project (Project). The Project, known as BellaVista, would extend as much as 193 feet seaward of the current (the 1986) CCCL. The Dwelling will be constructed in conformance with the structural requirements of the Florida Building Code (FBC), which are applicable to structures located seaward of the CCCL, as set forth in Section 3107, FBC. The Dwelling will be elevated on and anchored to a pile foundation which will withstand all reasonably anticipated erosion, scour, and loads resulting from a 100-year storm, including wind, wave, hydrostatic and hydrodynamic forces acting simultaneously with typical dead loads. Its lowest horizontal structural member will be elevated above the 100-year storm elevation as determined by DEP in the report entitled “One-Hundred Year Storm Elevation Requirements for Major Habitable Structures Located Seaward of a Coastal Construction Control Line.” The 100-year storm elevation requirement for the Dwelling is +15.4 feet NGVD,2 while the elevation for the lowest structural member of the Dwelling is +28 feet NGVD, 13.4 feet above the elevation requirements of the FBC. The most seaward point of the foundation of the Dwelling is located 18 feet landward of the most seaward point of the foundation of the existing structure on the eastern parcel and is landward of the seaward side of both of the existing dwellings. The proposed pool and pool deck, which extends seaward of the Dwelling's foundation, also are located landward of the seaward side of the existing dwelling on the eastern parcel and approximately in the same location as all but the extreme eastern part of the existing building on the western parcel, which extends a few more feet seaward. The seaward side of the Dwelling is 306 feet landward of the MHWL. DEP very commonly issues permits for structures closer to the MHWL (i.e., more seaward) than the Project. Many structures are permitted within 100 to 150 feet of the MHWL, and some within 60 feet. Property Description Before Hurricane Ivan struck in mid-September 2004, there was an extensive, well-established, healthy, growing and well-vegetated dune system on the Property seaward of the Project that extended to the east and west in front of and beyond the Atlantis and Spanish Key condominiums. This continuous dune system consisted of numerous mounds of sand ranging in height from 6 or 7 to 11 feet above MHWL, and established a dune line seaward of the existing structures on the Property and the Project. The more seaward of these dunes were the frontal dunes. Before Ivan, the vegetation line was approximately 150 feet seaward of the existing structures on the Property. Petitioners argue that there is a definite and unique primary dune line running straight between points where historic survey data indicate that a primary dune existed approximately 223 feet seaward of DEP range monument R-1 and 270 feet seaward of monument R-2. If there were such a dune line, the line would run through the BellaVista Project. But the evidence does not support an inference that such a primary dune line existed between those two points. Rather, the more persuasive evidence was that the dune system on Perdido Key consisted of dune mounds with an irregular pattern, not a continuous dune line or bluff. At the time Ivan struck Perdido Key and the Property, there was no primary dune or other dune beneath or landward of the two existing structures on the Property. Probably, the structures eliminated and then prevented the re- formation of dunes at that location. Ivan was a major magnitude storm with a storm surge of 15-20 feet, which exceeded the predicted storm surge of a 100-year storm in Escambia County. The existing dwellings on the Property survived the storm but were severely damaged. Ivan destroyed all of the vegetation that existed on the Property and on the beach dune system to the east and west. Ivan also destroyed all of the dunes on the Property and on the beaches to the east and west of the Property. Towards the end of March 2005, Escambia County placed a sand berm on the beach in front of the existing structures on the Property and along the beach to the east and west of the Property. The placement of the sand was partially funded by the Federal Emergency Management Agency (FEMA) and is meant to provide some immediate protection for upland structures, especially those that have been damaged or are vulnerable to damage, from higher-frequency storms. Initially, it would provide less protection from lower- frequency storms and, obviously, would be destroyed by a storm like Ivan. However, depending on future storm events, it would provide some protection and could contribute to recovery of the beach and dune system over time. The FEMA berm is located just seaward of the BellaVista Project site. It is located more landward to the east and west of the BellaVista Property and bends seaward around the existing buildings on the Project site. Moving from east to west, the berm begins to bend seaward at about the middle of the Spanish Key building and then, after crossing close in front of the existing buildings on the BellaVista site, bends back landward again at about the middle of the Mediterra building, which is adjacent to and west of the Atlantis building. The bowed-out segment of the FEMA berm in front of the existing buildings on the BellaVista site will be more susceptible to storm erosion than the segments to the east and west that are more landward. Petitioners argue that the FEMA berm was designed and intended to follow the supposed historic primary dune line but had to bend around the existing buildings on the BellaVista site because those buildings straddled the line. But, again, the suggested inference of a historic primary dune line is not supported by the evidence. In addition, the evidence does not support the inference that the placement of the FEMA berm followed a pre-selected line, but rather suggests that its placement was dictated by its purpose to provide some protection for damaged and vulnerable structures and properties. The top of the FEMA berm has an approximate height of 13 feet NGVD, or about 6 feet above grade, which is comparable in height to the dunes that existed before Ivan. From the landward toe, the berm rises approximately 6 feet at a slope of 2:1. The crest or top of the berm is 8 feet wide. The berm then slopes approximately 40 feet downward to its seaward toe. The overall width of the berm is 58 feet in the north-south direction. The FEMA berm is a mound of loose, sand-sized sediment which lies upland of the beach and was deposited by an artificial mechanism. It is subject to fluctuations in configuration and location. As such, the sand berm is a dune, as defined by Florida Administrative Code Rule 62B-33.002(17). See Conclusion of Law 48, infra. The FEMA dune is now the only dune on the Property or adjacent properties. The crest of the FEMA dune is approximately 30 feet seaward of the Project’s pool and deck. As such, the entire Project is landward of the toe of the FEMA dune. (Applicants modified their application to reflect the FEMA dune through admission of Applicants' Exhibits 9 and 10 into evidence.) The dune enhancement project proposed by the Applicants and required by the Final Order is located partially landward of the FEMA dune and partially atop the landward slope of that dune. The dune enhancement project will enhance the FEMA dune and expand the width of the dune approximately 10-15 feet on the landward side, making the crest of the new dune on the Property 25 feet wide at an elevation of 13 feet. The dry sandy beach on the Property and in the area to the east and west remains wide even after Ivan. The existing structures on the Property are now approximately 288 feet landward of the MHWL. Survey data taken at monuments R-1 and R-2 show that the shoreline at these monuments has historically accreted from the 1860s to the present. The rate of accretion increased from 1974 to 1996. Between 1985 and 1996, the MHWL at R-2 moved 100 feet seaward, a rate of approximately 6 feet/year. Similarly, between 1985 and 1996, the MHWL at R-1 advanced 80 feet, a rate of approximately 7 feet per year. Even if the data in the vicinity of these monuments indicate deceptively high rates of accretion because there were no data points in Alabama to include in the averaging, the accretional trend is clear from the evidence. The Project will not affect this accretional trend. Along with accretion, the dune system in the area of the Property also was growing prior to Ivan, and dune recovery seaward of the new FEMA dune is expected. The primary dunes that existed pre-Ivan on the adjacent properties immediately seaward of the Spanish Key and Atlantis condominiums, which included dunes with elevations of 16-17 feet, will take 25-50 years to rebuild through natural processes, such as aeolian (wind-driven) transport. Some may never recover to previous elevations. The lower dunes, such as those that existed on the Property, may recover in ten years. Since the Project is located landward of the FEMA dune, it will not interfere with post-storm recovery of the dune system. Line of Construction Petitioners contend that there is a reasonably continuous and uniform construction line seaward of the current (the 1986) CCCL "in the immediate contiguous or adjacent area" and landward of the proposed Project--namely, along the line of the former (the 1975) CCCL. In fact, such a line of construction exists extending approximately 500 feet west, and approximately 1,500 feet east, of the proposed Project, but no farther, as there are structures more seaward beyond those points. In addition, in making their "line of construction" argument, Petitioners ignore the existing structures on the proposed Project site. The line of construction is not a prohibition in and of itself. Rather, it is only one of several criteria that must be balanced in determining whether or not to approve a CCCL permit application. The line of construction is a factor for new construction but not for rebuilding or relocation of a building landward. It is the position of DEP and Applicants that the Project qualifies as a rebuilding or relocation and that "line of construction" does not apply. Regardless whether the "line of construction" applies, it must be considered, weighed, and balanced against all of the other application processing factors. See Conclusion of Law 56, infra. Applicants contend that protection of the beach dune system through application of the line of construction provisions is not supported by the Petitioners’ own testimony. They argue that Susan Long, testifying on behalf of and as an agent of Spanish Key, admitted that Spanish Key would not oppose the project at its proposed location were it only two stories tall and would not oppose the repair of the existing structures. Likewise, they argue Boyd Bond, testifying on behalf of and as an agent of Atlantis, stated that Atlantis would not oppose the repair of the two existing multi-family dwellings of the Property. Actually, both testified that they would not oppose those undertakings if Applicants were entitled to permits for them. Significant Adverse Impacts Florida Administrative Code Rule 62B-33.002(31) defines various degrees and kinds of impacts for purposes of CCCL permitting: "Impacts" are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows: "Adverse Impacts" are impacts to the coastal system that may cause a measurable interference with the natural functioning of the system. "Significant Adverse Impacts" are adverse impacts of such magnitude that they may: Alter the coastal system by: Measurably affecting the existing shoreline change rate; Significantly interfering with its ability to recover from a coastal storm; Disturbing topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure or the protective value of the dune system is significantly lowered; or Cause a take, as defined in Section 370.12(1), F.S., unless the take is incidental pursuant to Section 370.12(1)(f), F.S. "Minor Impacts" are impacts associated with construction which are not adverse impacts due to their magnitude or temporary nature. "Other Impacts" are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access. (Other applicable rule definitions are set out in Conclusion of Law 48, infra.) Only "significant adverse impacts" (not all impacts or even all adverse impacts) have to be eliminated before DEP may issue a CCCL permit. Vegetation Vegetation on the Property itself was limited pre- Ivan due to development, and Ivan largely destroyed what vegetation there was on the Property. As a result, any disturbance of any existing vegetation during construction will be de minimis. In addition, since there no longer are any dunes on the Project site, no destabilization of any dune or any "significant adverse impact" to the beach and dune system due to increased erosion by wind or water will result from construction of the Project. To the contrary, Applicants have submitted a dune enhancement plan tailored for site conditions as they now exist post-Ivan. Special Condition 9 of the proposed Permit requires that Applicants plant soil-stabilizing native grasses throughout the dune enhancement area in staggered rows 18 inches apart and also requires the achievement of a given survival rate. The dune enhancement plan includes planting which constitutes a significant improvement to the native vegetation situation on the site. The Project will not interfere with the re-emergence of vegetation seaward of the Project. Disturbance of In Situ Sandy Soils Construction of the Project will not result in the 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 only excavation will be for foundation pilings and the swimming pool. Obviously, excavation for the foundation will be filled with the pilings, and none of the sand excavated for that purpose will be removed from the site. All the sandy material excavated for the pool will be placed on site seaward of the structures and the CCCL within the dune enhancement area and in the immediate area of the construction. In addition, the Project will result in the net addition of 658 cubic yards of sand to the beach dune system seaward of the CCCL as part of required beach enhancement. The additional sand to be placed as part of the dune enhancement plan will, in fact, enhance the ability of the system to resist erosion during a storm and will raise existing levels of storm protection to upland properties and structures. Structure-Induced Scour Construction of the Project 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." Scouring around piles in a storm is very localized and miniscule and would extend no more than two feet away from the piles and will not reach adjacent properties. Any storm-induced scour will be less than 0.02% of the erosion caused by a 100-year storm event. Scour from the proposed structures will not measurably affect shoreline change rates. Scour caused by the proposed structures will not significantly interfere with beach dune system's ability to recover from a coastal storm. The minimal scour caused by the Project will not disturb topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure. Missiles The Project has been designed to minimize the potential for wind and waterborne missiles during a storm. The Dwelling will be constructed in conformance with the structural requirements of the FBC for structures located seaward of the CCCL, as set forth in Section 3107, FBC. The Dwelling will be elevated on and anchored to a pile foundation which will withstand all reasonably anticipated erosion, scour, and loads resulting from a 100-year storm, including wind, wave, hydrostatic, and hydrodynamic forces acting simultaneously with typical dead loads. As designed, it will not interact with the beach/dune system in storm events and will allow the free movement of sand, water, storm surge, and waves under the building. In the event of another hurricane, storm surge and waves would pass under the Dwelling and not impede such natural processes. Conformance with the FBC minimizes missile potential. Petitioners' coastal engineering expert witness conceded that he did not anticipate missiles would adversely affect the Petitioners’ property or structures. No evidence was offered to show that missiles would adversely affect Petitioners’ property or structures or that the Project would not comply with the applicable FBC structural requirements. Reflective wave energy from the Project will not impact the Petitioners’ property or structures and would not cause a significant adverse impact. There was no evidence of missile damage to Petitioners’ properties from the existing structures even during Hurricane Ivan. To the extent that any threat of missile damage to Petitioners’ structures exists, a more landward location of the Project would increase the threat. Minimization and Mitigation Initially, Applicants proposed a larger and more seaward project. Through negotiations, Applicants agreed to reduce the size of the project and move it more landward. DEP and the Applicants characterize this as minimizing the adverse impacts of the Project. However, "minimization" of this kind can be illusory if an applicant attempts to manipulate it by making a "throw-away" first proposal (not to imply that Applicants manipulated minimization in this case, which cannot be determined from the record). Siting and design criteria have minimized adverse impact. These include construction of the Dwelling: (a) on piles with a design elevation above the storm-surge and storm wave elevations; (b) 306 feet landward of the MHWL and the active beach; (c) behind the new FEMA dune; (d) as far landward as possible for the design; and (e) 18 feet landward of the existing structures on the Property. Placing material excavated for the pool in front of the pool and in the immediate area of construction has minimized the impacts of the pool. No evidence was offered to show that the impacts of the pool have not been minimized. The Permit has been conditioned to require dune enhancement, planting of native, salt-tolerant vegetation, and maintenance of such vegetation as mitigation against adverse impacts associated with the Project. Beach Dune Stability and Natural Recovery The Project is located a sufficient distance landward to permit natural shoreline fluctuations, to preserve and protect beach and dune system stability, and to allow natural recovery to occur following storm-induced erosion. It is located landward of the frontal dunes that existed before Ivan and landward of the frontal dune that now exists (the FEMA dune). The Project will not affect existing shoreline change rates. The Project is landward of where an extensive dune system existed before Ivan and that landward location means it will not interfere with the recovery of those dunes. There is a great expanse of area for dune recovery. It is anticipated that vegetation seaward of the Project will re- emerge by this coming summer. Construction of the Project will not prevent the dune system from recovering and providing protection. Petitioners' primary argument against the Permit, other than its "line of construction" argument, is that dunes will not recover under the footprint of the Dwelling, where they otherwise "want to" and would be expected to recover to some extent, providing some additional dune stability and protection, all other things being equal (i.e., if minimization and mitigation were the same), if the Permit were to be denied and Applicants forced to propose a smaller, more landward project. Cumulative Impacts The Project will not have an unacceptable cumulative impact. No evidence was offered to show that an unacceptable adverse cumulative impact in terms of existing or other proposed projects will result. Positive Benefits of Project The Project will have a net positive benefit on the beach-dune system and adjacent properties and improves existing conditons. Demolition of the two existing structures on the Property will decrease the likelihood of wind and waterborne missiles since the new Dwelling will comply with the structural wind and water load requirements of the FBC. All of the structures to be constructed under the Permit will be landward of the seaward portions of the existing structures. The new Dwelling will be 18 feet landward of the seaward-most point of the existing structures. This landward relocation will allow for more dune recovery seaward of the Project than could occur under existing conditions and mean that the Project will have less impact than the existing structures. Since the beach is an accretional beach and the shoreline has historically advanced seaward, it is expected that the seagrasses and dunes will recover in the area. The area of the Dwelling seaward of the old CCCL is less than the area of the existing structures. The Applicants will implement a dune enhancement plan that includes the placement of 658 cubic yards of sand on the beach and the successful planting of native vegetation on the dune. This dune enhancement plan will benefit the beach dune system, will benefit the new dune, and will increase protection to upland properties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing CCCL Permit ES-540, as modified by Applicants' Exhibits 9 and 10. DONE AND ENTERED this 9th day of June, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 2005.
The Issue Whether the application submitted on behalf of the City of Miami Beach, Florida (City) for a coastal construction control line (CCCL) permit should be approved.
Findings Of Fact The Petitioner, Wallace Corporation, owns and operates the Richmond Hotel located at 1757 Collins Avenue, Miami Beach, Florida. The Richmond Hotel (the Richmond) was built in 1941 by Allan Herbert's grandfather. It has been continuously controlled by Mr. Herbert's family since that time. The Richmond prides itself on its appeal to upscale international travelers. It seeks to offer unique accommodations, service, and privacy. The Richmond was recently renovated and restored at a cost of several million dollars. The guest rooms, roof, plumbing, and electrical systems were upgraded while the original Art Deco decor was preserved. Included in the renovations were improvements to the pool area, landscaping, and a dune walk-over. These renovations sought to appeal to a "boutique" clientele seeking a peaceful and tranquil housing accommodation while enjoying the Miami Beach locale. The Respondent, City of Miami Beach, is the applicant for the instant CCCL permit. Coastal Systems was retained by the City to file and procure the subject permit which is identified in this record as CCCL permit no. DA-361. The CCCL permit application was filed with the Department on June 19, 1997. Since that time it has been modified to address Department concerns. The Department of Environmental Protection is the state agency charged with the responsibility of reviewing applications for CCCL permits. In its review of the instant permit, the Department deemed the application complete on February 5, 1998. Thereafter, the Department's Bureau of Beaches and Coastal Systems entered a proposed order to approve CCCL permit no. DA-361. If approved, this permit will allow the construction and improvements sought by the City. The project proposed by the City will allow for the construction of a beachwalk that would extend from Lummus Park at 14th Lane to an existing boardwalk at 21st Street. This beachwalk, along with its attendant improvements, will allow the public to access the beach at several controlled points along the dune system. Additionally, it will allow pedestrian traffic to move efficiently length-wise along the dune system. The project concept is to limit the number of points across the dune system that the pedestrian public uses for access to the beach. Further, the beachwalk will offer the public an efficient means of traveling north to south or vice versa without reverting out to Collins Avenue. Shifting pedestrian traffic away from Collins Avenue should improve traffic conditions in this highly urbanized area. The design of the beachwalk minimizes impacts to the beach dune system and prevents erosion by keeping pedestrians on the walk and off the dune. The design will act as an erosion preventative measure and should assure minimal adverse impacts to the dune and beach system. In this regard, it is critical to note that the dune and beach system in this area of Miami Beach are the product of beach renourishment. The beach itself was created in the late 1970s and 1980s by the U.S. Army Corps of Engineers. In order to address the severe erosion that threatened properties along Miami Beach, the Corps stepped in and deposited millions of cubic yards of sand on the beach. The beach renourishment project expanded the beach from government cut to 32nd Street. It was designed to provide storm protection for upland owners by widening the non-existent beach and by creating a dune system. The dune was established immediately seaward of the erosion control line (ECL). This ECL had formerly been the mean high water mark for the beach prior to the massive undertaking to deposit sand along the coast. The newly created dune served as a dike to reduce the impacts which would be expected from a 100-year storm event. In theory, water generated in such a storm event would be blocked from coming onshore thereby minimizing damage from wave or surf action upland of the ECL. To enhance the dune's efficiency in this regard, a vegetation program was implemented to address wind and pedestrian erosion to the dune system. This vegetation program will be expanded as explained below if the instant permit is approved. Currently the dune system is marred by cross-over channels cut by pedestrian traffic through the dune. These pathways provide convenient access to the beach but do so at a cost to the dune's efficiency and security. Because they cut through the dune in an easterly direction, they allow wind and, potentially water in a storm event, to gouge the dune. The cuts in the dune undermine the efficiency of the erosion control. By installing the beachwalk proposed by the City, the number of cuts across the dune will be minimized. Moreover, they will be designed to trap sand and to promote erosion control. The areas which have already been gouged will be re- vegetated to deter pedestrian use. The native vegetation planned for this work should promote erosion control and enhance the dune system. The types of vegetation and manner of planting should also deter future unauthorized pedestrian access through the dune. Subsequent to the beach renourishment program, the beach, along the entire project length, has experienced a natural accretion. This means that natural erosion is not occurring. Natural erosion results from wind, tidal, or other naturally occurring influences. In contrast, however, are the man-made erosion sources: pedestrian paths, cuts in the dunes which endanger the dune and limit its effectiveness. The danger from these unregulated cuts could potentially undermine the dune and accelerate erosion from natural events. Dune cross-walks such as proposed by the instant project (and as maintained by the Petitioner) are required for the prevention of erosion. Thus the project in its entirety will prevent erosion. The proposed project will not adversely impact the beach-dune system. Petitioner presented no evidence to establish a significant impact. The project creates a net improvement of sand and vegetation to the dune and will restore all dune cuts. The beachwalk is proposed to follow the shore, parallel to the beach. It is to be constructed of paver blocks and is to accommodate controlled movement of pedestrian traffic and bicyclists. While it could accommodate emergency vehicle traffic such as police or medical rescue, it is not designed for such use on a routine basis. The beachwalk will improve public access at 17th and 18th Streets. These access points will give the public better availability of parking and public accommodations. All of the street end dune cross-overs are designed to trap sand and to minimize erosion to the dune. The proposed access points significantly improve the west to east access to the beach. As currently designed, the beachwalk will not cause wind borne or water borne projectiles during a storm event. Moreover, the paver block walk is located landward of the dune in most instances. Even this walk has been designed to break apart and result in no increased erosion during a storm event. The beachwalk will be constructed of paver blocks installed on a crushed shell or rock base. This base should give the path stability under normal use yet give way in a significant storm event. In some areas the height of the dune will be increased by the placement of additional sand fill. Foundations for improvements proposed along the beachwalk are also designed to give way in a storm event. Thus, planters or low walls should easily collapse if undermined in a storm event. All of the improvements seaward of the ECL are minor structures. Most of the project will be located on state lands. In the instances where the project crosses or touches private property the City recognizes it must secure easements or other appropriate access to construct and maintain improvements. It is unlikely that the improvements will cause scour. It is also unlikely that the project will accentuate or contribute to storm surge. As currently proposed, the beachwalk project will have no adverse impact on the dune system. Moreover, the project will create an improvement to the system by adding sand, stabilizing and improving vegetation on the dune, controlling pedestrian access to the beach, and trapping sand. Prior to 1980 there was no documented turtle nesting on the project area of Miami Beach. Since that time, and the creation of the beach from renourishment, there has been a marked increase in turtle nesting in the area. While such nesting is encouraged by the Department, due to the urbanized nature of the area and the intense pedestrian and public use of the beach, all turtle nests located along this beach are relocated to hatcheries. This relocation policy and practice for the area existed before the proposed project was submitted for approval. The relocation program is managed by Miami-Dade County under a permit issued by the Department. Pursuant to the permit, the County conducts nesting surveys, operates self-release and restraining hatcheries, documents false crawls, and rescues turtles for relocation. None of the foregoing activities will change if the instant permit is approved. Given the width of the beach in the subject area of the proposed beachwalk, the limitations on the lighting proposed for the path, and the current restraints employed to deter the public from interfering with turtle nesting, it is unlikely turtle nesting in the subject area will change. If anything, there is a possibility that nesting may increase. For reasons unknown to the experts, turtle nesting on Miami Beach is greater in the better lit areas of South Beach. More turtles have nested along the better lit area, have had more false crawls, and have resulted in more nest re-locations from the highly commercial area of South Beach than in the darker, more traditional beach of the subject area. As turtles and hatchlings become disoriented by lights, this documented phenomenon seems contrary to the typical turtle scenario which would have the nesting turtle approach a dark, quiet beach, nest within a limited distance of the rack line (the line of seaweed deposited by tide along the beach), and return to the ocean. At the area of the Richmond, turtle nests are typically found within 50 feet of the rack line. Turtles nest within a limited distance of this line, rarely more than 100 feet. Since the beach is several hundred feet wide along the project length, it is unlikely nesting turtles will be deterred by the construction of the path. Additionally, it is unlikely the lights proposed for the beachwalk will adversely impact turtles. The number, placement, and limitations proposed on the lights will adequately minimize lighting impacts expected from this project. Given the need for some lighting to address security and safety issues for the public using the beachwalk, given the relocation of all turtle nests on the subject beach, given the project distances and design considerations to be employed for the path, and given the lack of substantial evidence to the contrary, it is found that the proposed project does not constitute a "take" of marine turtles in the project area. Miami Beach is a very well lit, commercial area. The pockets of dark beach are only dimly lit in comparison to the more pronounced lights from night clubs or other entertainment areas. The lighting plan proposed by the City adequately addresses the potential for impacts to turtles such that the project should not have a significant adverse impact. To further limit impacts, however, construction of the project should not occur during nesting season. The proposed beachwalk with its attendant improvements does not cross in front of the Richmond. The project stops immediately to the south of Petitioner's property. The project picks back up immediately to the north of Petitioner's property. The original design of the project was modified in this fashion because Petitioner opposes the construction of the path and its attendant improvements. Because Petitioner opposes the project, no portion of the beachwalk will impede Petitioner's riparian rights to the beach/ocean. None of the proposed improvements will be constructed seaward of the ECL along Petitioner's property. All owners of property upon whose land the beachwalk will be constructed, have or will be required to give written consent to the project. Any public entity upon whose land the beachwalk will be constructed, has or will be required to give written consent to the project. Petitioner expects the beachwalk to damage business at the Richmond. Mr. Herbert believes the damage should be comparable to the events such as the cold winter of 1958, World War II, and, more recently, the murder of foreign visitors. While it is certain the beachwalk has the potential for increasing pedestrian traffic along the beach in front of the Richmond, any damage suggested by Petitioner is too remote or speculative to be of significant consideration. The construction of the proposed beachwalk will have no adverse impact on the physical condition of Petitioner's property. The proposed project will not create a significant adverse impact to the property of others. Petitioner was not required to establish its dune cross-over was required for erosion control. All dune cross- overs allowed by the Department previous to the instant request were not required to establish that they were required for erosion prevention. All of the existing and proposed cross-overs are seaward of the ECL. No upland riparian rights will not be adversely affected by the project. Petitioner's rights as an adjacent property owner to the project will not be adversely affected by the beachwalk. Petitioner will not be adversely affected from storm impacts as a result of this project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order approving CCCL permit no. DA-361 with the conditions as set forth in the proposed agency action order and with additional assurances that construction of the project will not occur during turtle nesting season, and that all property owners over whose land the project will meander provide written approval of, and authorization for, the proposed improvements to their properties. DONE AND ENTERED this 8th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. Parrish 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 8th day of June, 1999. COPIES FURNISHED: Neil Chonin, Esquire Chonin, Sher & Navarrete, P.A. 95 Merrick Way, Suite 100 Coral Gables, Florida 33134 Joseph C. Segor, Esquire 12815 Southwest 112th Court Miami, Florida 33176-4431 Ricardo Muratti Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Earl G. Gallop, Esquire Nagin, Gallop, Figueredo, P.A. 3225 Aviation Avenue, Suite 301 Miami, Florida 33133-4741 Raul J. Aguila, Assistant City Attorney Office of the City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 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 Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
The Issue The issues for determination at final hearing were (1) whether Petitioner's coastal construction Permit No. 86-155PB, authorizing Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Palm Beach County, Florida, should be extended under Special Permit Condition 10 of the Permit and (2) whether the experimental reef structure should be removed pursuant to Special Permit Conditions 3 and 12 of the Permit.
Findings Of Fact On April 6, 1987, American Coastal Engineering, on behalf of Willis H. DuPont (Petitioner) and Florida Atlantic University's Department of Ocean Engineering, was granted coastal construction Permit NO. 86-155PB 3/ (Permit) by the Department of Natural Resources (Respondent). 4/ The Permit authorized Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Florida. The experimental reef structure, referred to as a prefabricated erosion prevention reef (PEP reef), is a 550 foot submerged breakwater which was constructed using prefabricated concrete segments, placed end-to-end underwater in the nearshore area. The purpose of the PEP reef is to reduce erosion of the beach landward of the structure. The PEP reef was installed on May 5, 1988. Special conditions were placed on the Permit, to which Petitioner agreed. The special conditions in pertinent part provide: The permittee shall adjust, alter or remove any structure or other physical evidence of the work or activity permitted, as directed by the Executive Director, if in the opinion of the Executive Director, the structure, work or activity in question results in damage to surrounding property or otherwise proves to be undersirable or becomes unnecessary. Adjustment, alteration, or removal required under this provision, shall be accomplished by the permittee at no cost to the State of Florida. * * * 10. The proposed submerged breakwater shall be removed within two years following installation of the experimental structure unless determined by the staff to remain in place for an extended period of time. This determination shall be based on a staff evaluation of the monitoring data, existing statutory regulations, and the feasibility of the project in concurrence with the beach management plan at that time. The experimental structure shall only remain in place after two years upon written approval from the Executive Director indicating an extension has been granted. * * * 12. The Executive Director may order removal of the experimental structure as soon as the shoreline along any portion of the area required to be nourished under Special Permit Condition 6 erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location within the area to be monitored. Petitioner requested an extension of the Permit. On July 10, 1991, Respondent issued a final order denying an extension of the Permit, pursuant to Special Permit Condition 10, and directing the Petitioner to remove the PEP reef pursuant to Special Permit Conditions 3 and 12. An extension of the Permit beyond the two years following installation of the PEP reef, according to Special Permit Condition 10, is based upon three factors: (1) an evaluation by Respondent's staff of monitoring data gathered by Petitioner, (2) statutory regulations existing at the time of the extension request, and (3) the feasibility of the project in concurrence with the beach management plan existing at the time of the extension request. Although Petitioner's monitoring data addressed the question whether the PEP reef was performing its function, it did not address existing statutory regulations or the project's feasibility in concurrence with the current beach management plan. 5/ Petitioner's monitoring data was collected over a two-year period with surveys being performed through March 1990: March 1988 (preconstruction), May 1988 (post-construction), August 1988, December 1988, February 1989, April 1989, July 1989, November 1989, and March 1990. The data was collected along 17 profile stations: seven stations were located within or immediately adjacent to the boundaries of the PEP reef, and five to the north and five to the south of the PEP reef. The data indicated that the PEP reef was an experiment and approved by Respondent as an experiment. As a conclusion, Petitioner indicates that the PEP reef is functioning for the purpose it was designed in that it is providing a benefit to the beach. Respondent disagreed with Petitioner's conclusion. For one, Respondent disagreed with the method of analysis used by Petitioner to analyze the data because Petitioner's analysis failed to filter out seasonal effects. This procedure brought into play the first of the three factors in Special Permit Condition 10 which was used for denial of the Permit extension. Petitioner's monitoring data was utilized and analyzed by Respondent. Using the data gathered, Respondent created profile plots which are cross sectional depictions of the shoreline profiles and which displayed changes to the shoreline occurring during the survey period. Respondent used a shoreline change analysis in determining the PEP reef's effect on the shoreline in its vicinity. The analysis focused on the net change in the shoreline, i.e., the net change in the location of the mean high water line, factoring out the seasonal variations which occur along the coast by comparing profile plots from the same time of year taken during the two-year monitoring period. The shoreline change analysis indicated that in the vicinity of the PEP reef the shoreline showed irregular periods of both accretion and erosion. However, the shoreline did not reflect the typical pattern that was expected with a functioning breakwater. To the contrary, the irregular periods of accretion and erosion and the irregular configuration of the shoreline indicated that factors other than the PEP reef were affecting the shoreline. One such intervening factor was attributed to the large number of existing shoreline structures called groins which are scattered throughout the area. Groins are structures intended to stabilize the shoreline by blocking the down drift movement of sand, thereby altering the natural coastal processes. The monitoring data shows that, in terms of accretion or erosion, the PEP reef produced no recognizable influence on the shoreline in its vicinity. As to the second factor in Special Permit Condition 10, at the time the Permit was granted in 1988, no regulations specifically applicable to experimental structures existed. However, in 1989 a provision specifically addressing the permitting of experimental structures became law. /6 The provision provides that the "intent" of the Florida Legislature is to "encourage the development of new and innovative methods for dealing with the coastal shoreline erosion problem," and that, in authorizing the "construction of pilot projects using alternative coastal shoreline erosion control methods," the Respondent must determine, among other things, that "the proposed project site is properly suited for analysis of the results of the proposed activity." Groins in the PEP reef area alter the natural coastal processes and, therefore, play a significant role in the analysis of the shoreline processes. The effect of the groins affected the Respondent's ability to determine the effectiveness of the experimental structure. As a result, the Respondent was unable to make a determination in accordance with the legislative mandate. As to the third factor in Special Permit Condition 10, Petitioner presented no evidence addressing this factor. Petitioner has failed to show that the experimental structure, the PEP reef, has satisfied Special Permit Condition 10. It has failed to show that the intended purpose of the PEP reef has been accomplished, i.e., that the PEP reef is effective or beneficial. In denying Petitioner's request for an extension of the Permit, Respondent directed removal of the PEP reef pursuant to Special Permit Conditions 3 and 12. Special Permit Condition 3 provides for removal, alteration or adjustment of the PEP reef if it "proves to be undersirable or becomes unnecessary." The construction of the PEP reef consisted of, among other things, the placing of individual reef units end-to-end. To alert boaters to the location of the PEP reef, a buoy was placed at each end of the structure. The stability of the PEP reef is questionable. In 1989 a storm dislodged the individual units. In an effort to prevent sliding, Petitioner attempted to realign the units to their original position and added more weight to the units. Despite Petitioner's efforts to stabilize the structure, the PEP reef has experienced continued movement. Furthermore, because of the continued movement, boaters' safety would be compromised in that the buoys would be ineffective in warning them of the location of any units which may be dislodged. Also, the additional weight to the units could cause the individual units to settle, potentially affecting the performance of the PEP reef, and could induce erosional scour around the structure itself. Special Permit Condition 12 provides for removal when "the shoreline along any portion of the area required to be nourished . . . erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location." The shoreline analysis showed that the shoreline in many portions of the nourished area eroded landward of the pre-nourished beach profile. The mean high water line had positioned landward of its pre-project location. Petitioner has failed to show that the PEP reef does not fall within the conditions of Special Permit Conditions 3 and 12. Federally protected and endangered marine species have attached themselves to and/or now reside in the PEP reef, complicating the removal of the PEP reef. In order not to disturb or disrupt this marine life, Respondent has expressed a desire in relocating the structure to a position further offshore.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources 7/ enter a final order DENYING an extension of Permit No. 86-155PB. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of April 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April 1994.
The Issue The issue in the case is whether the Town of Beverly Beach's Comprehensive Plan Amendment 03-1, initially adopted by Ordinance 2003-ORD-6 and amended by Ordinance 2004-ORD-6, is "in compliance," as required by Section 163.3184, Florida Statutes (2004).
Findings Of Fact The Department is the state land planning agency and has authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (2004). One of the Department's duties under the Act is to review proposed amendments to local government comprehensive plans to determine whether the amendments are in compliance with the Act. The Town of Beverly Beach is a small municipality in Flagler County, Florida, and has the duty and authority to adopt a local government comprehensive plan pursuant to Chapter 163, Florida Statutes (2004), and to amend the plan from time to time. In June 2002, the Town proposed to amend its Future Land Use Map (FLUM) to change some of the land uses within the 37-acre Shelter Cove Planned Unit Development (PUD). The Shelter Cove PUD was the subject of an earlier lawsuit in the circuit court for Flagler County brought by the owners and developers of the property after the Town denied their PUD application. In 2002, the court entered judgment against the Town and ordered the Town to approve the PUD application. In its order, the court included a statement that the Shelter Cove PUD was consistent with the Beverly Beach Comprehensive Plan. The purpose of the plan amendment proposed in June 2002 was to re-designate 14.25 acres from Conservation/Spoil Area to Low Density Residential, 0.75 acres of Conservation/Spoil Area to Medium Density Residential, and 8.25 acres of Low Density Residential to Medium Density Residential. The proposed amendment was transmitted to the Department for compliance review. In its July 2003 ORC Report, the Department set forth four objections to the proposed amendment: 1) increased density in a Coastal High Hazard Area; 2) no traffic impact analysis regarding emergency evacuation; 3) inadequate potable water and sanitary sewer services; and 4) unsuitability for development because of saltwater marsh and potential use by threatened and endangered animal species. The Town made changes to the proposed amendment to address the Department's objections and adopted Plan Amendment 03-1 on October 6, 2003. One significant change made by the Town was to reduce the size of the land affected by the amendment from 23.25 acres to 14.5 acres. The stated purpose of the revised amendment was to deal exclusively with the spoil areas within the Shelter Cove PUD; to convert them from Conservation to Low Density Residential. The Department was not satisfied with the changes made by the Town and on November 17, 2003, it issued a Statement of Intent To Find The Comprehensive Plan Amendment Not In Compliance. This statement did not reassert the four objections of the ORC Report, but identified only two reasons for its determination that Plan Amendment 03-1 was not in compliance: 1) increased density in a Coastal High Hazard Area that would increase evacuation clearance times and 2) inadequate sanitary sewer facilities based on the denial of the utility's permit renewal by the Department of Environmental Protection (DEP). The Department recommended remedial actions that would bring Plan Amendment 03-1 into compliance. Thereafter, the Department and Town entered into a compliance agreement to identify remedial actions by the Town that would bring the plan amendment into compliance. Pursuant to the agreement, the Town adopted remedial measures in Ordinance 2004-ORD-6 (the Remedial Ordinance) that caused the Department to determine that the plan amendment was in compliance. The Remedial Ordinance (with additions and deletions as indicated in the ordinance) states in pertinent part: Limiting Density on the 14.5-acre amendment site & Hurricane Evacuation Plan Future Land Use Element: contains policies controlling the density and intensity of development (both residential and non- residential) in the Town of Beverly Beach. Policy A.1.1.9 The Low Density Residential (LDR) land use (up to 5 dwelling units/acre) shall be applied to 14.5 acres of upland spoil sites in the Shelter Cove development as shown in Exhibit A, not to exceed a total gross density of 28 residential units. In addition to the provisions described in Policy 1.1.4, the following provisions shall apply to the Shelter Cove Development: Residential land use for the Shelter Cove Planned Unit Development(PUD)shall be limited to a maximum of 115 dwelling units. The Town of Beverly Beach shall not issue a permit or certificate of occupancy until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code (see Policy A.1.1.1). * * * Policy A.1.1.10 No later than December 2005, Beverly Beach shall revise its comprehensive plan to update the goals, objectives and policies and future land use map series and transmit such revisions to the Department of Community Affairs. The updated plan shall reflect changes to Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, since the plan went into effect in 1991. This revision shall be based on a planning period through Year 2015, with current and forecasted conditions and satisfy data and analysis requirements. * * * Revise policies under Objective D.2.1, Beverly Beach Comprehensive Plan regarding the provision of potable water and sanitary sewer Public Infrastructure/Facilities Element: refers to the protection of water quality by specific policies that require deficiencies in wastewater treatment facilities be corrected in accordance with DEP requirements. Objective D.2.1 By December 31, 1992 December 31, 2005, the Town shall require that existing deficiencies in the wastewater treatment package plants owned by Surfside Utilities operated by Ocean City Utilities be corrected in accordance with FDER Department of Environmental Protection [DEP] requirements. Policy D.2.1.1 As the Town does not own the wastewater treatment plants nor has operational control over the same, the Town shall formalize a coordination committee to include the owner/operator of Surfside Utilities Ocean City Utilities, the members of the Town Commission, members of the Flagler County Board of County Commissioners or their appointee, members of the City of Flagler Beach Commission or their appointee, and FDER the Department of Environmental Protection [DEP] and any other identified stakeholder in the Town. Policy D.2.1.2 The Town shall use the coordination committee to address the deficiencies in the wastewater plants, to set priorities for upgrading and replacing components of the plants, and to request FDER the Department of Environmental Protection [DEP]to increase and enforce their regulations requiring periodic monitoring and maintenance of package treatment plants. Policy D.1.2.3 The Town shall use the coordination committee to investigate the feasibility of assuming operational responsibility of the wastewater treatment system by another entity. Applying the five dwelling units per acre density allowed in the Low Density Residential category to 14.5 acres would generate 72.5 units. However, as indicated above, the Remedial Ordinance also restricted the total allowable dwelling units in the 14.5 acres to 28 units. The 28 units coincide with the site plan for the Shelter Cove PUD that was the subject of the circuit court judgment. The site plan called for 28 single- family lots in the former spoil areas. Charles Osbourne, Bernard Knight, and Mary Jo Knight were residents of the Town of Beverly Beach when the Town adopted Plan Amendment 03-1. They intervened against the Town in the original proceedings initiated by the Department. Following the Department's determination that the plan amendment had been brought into compliance by the Remedial Ordinance, they filed an Amended Petition to Intervene and were realigned as the Petitioners. On some date between the filing of their original petition in this case and the date of the final hearing, Petitioners Bernard Knight and Mary Jo Knight moved out of Beverly Beach. They are no longer residents of the Town. In their Amended Petition to Intervene, the Petitioners assert that the Remedial Ordinance did not resolve all the problems originally identified by the Department's ORC Report, and Plan Amendment 03-1 is still not in compliance. The Petitioners' objections to the amendment fall into three categories: insufficient and inaccurate data and analysis, insufficient legal description for the lands affected by the plan amendment, and inadequate wastewater services available for the increased density resulting from the amendment. These three categories will be used to organize the findings of fact that follow. Data and Analysis/Maps The Petitioners assert that the maps used for Plan Amendment 03-1 and the Remedial Amendment are not the official maps currently contained in the Beverly Beach Comprehensive Plan. They contend the unofficial maps contained errors that caused some of the area designated as Conservation/Saltwater Marsh to be included in the 14.5 acres re-designated Low Density Residential. At the hearing, the Petitioners also attempted to show that maps used by the Town with Plan Amendment 03-1 were not consistent with the Beverly Beach FLUM with regard to the depiction of saltwater marsh areas outside the 14.5 acres affected by the plan amendment. Whether such discrepancies exist is not a relevant inquiry for determining whether Plan Amendment 03-1 is in compliance. A 1997 report regarding threatened and endangered animal species, prepared by Lotspeich and Associates for the developer of the Shelter Cove PUD, includes a statement that there are 10.3 acres of spoil on the 37-acre PUD site. That figure is inconsistent with the Town's claim that the lands affected by Plan Amendment 03-1 consist of 14.5 acres of spoil. Lindsay Haga, a regional planner with the Northeast Florida Regional Planning Council (Council), made the determination that there are 14.5 acres of spoil area. Because the Town does not have a professional planning staff, the Council was providing planning services to the Town under contract. Ms. Haga worked on Plan Amendment 03-1 on behalf of the Town. Ms. Haga obtained a mapping of the land uses within the Shelter Cove PUD from information maintained by the St. Johns River Water Management District (District). The land use categories are based on the Future Land Use Classification Categorization System, and were applied by the District using aerial photography. Using professional software called "ArcView," Ms. Haga derived the size of the various land uses mapped within the Shelter Cove PUD by the District. The software calculated the size of the spoil areas as 14.5 acres. According to Ms. Haga, planners use this method "100 percent" of the time to delineate land uses on future land use maps. Ms. Haga was called as a witness by the Petitioners and by Beverly Beach and testified at length on direct and cross-examination on how she determined the size of the spoil areas. Nevertheless, some ambiguity remains as to whether the size and position of the spoil areas designated in the official Town FLUM are the same as their size and position as delineated by Ms. Haga for Plan Amendment 03-1 using information from the St Johns River Water Management District. The Town and the Department seem to suggest in their joint post-hearing submittal that the size and position of the spoil areas on the FLUM can be "cleaned up" or re-drawn using more site-specific information presented at the final hearing. The implication is that, if the Town's FLUM delineated less than 14.5 acres as Conservation/Spoil Area, but better data is presented at the hearing to show that the spoil areas actually cover 14.5 acres, the FLUM delineation can be ignored or treated as if did cover 14.5 acres. The redrawing of land uses as they are depicted on an adopted FLUM is arguably beyond the authority granted to the Department in Chapter 163. That issue need not be decided on this record, however, because the more credible and persuasive evidence shows there were no material changes to the size and position of the spoil areas in Plan Amendment 03-1, and no saltwater marsh was re-designated as Low Density Residential. Data and Analysis/Topographic Information The Petitioners assert that topographic data used by the Town was flawed and did not accurately reflect that much of the Shelter Cove PUD is within the 100-year floodplain. For example, the June 2002 Transmittal Packet sent to the Department included a statement that, "According to FEMA the 100 year floodplain is confined to the saltwater marsh areas located adjacent to the Intracoastal Waterway." At the hearing, the Town admitted that some of topographic information was inaccurate and described it as a "scrivener's error." The parties stipulated to the introduction into evidence of topographic information that indicates a portion of the 14.5 acres affected by Plan Amendment 03-1 lies within the 100-year floodplain. The Petitioners have not shown how the inclusion of inaccurate topographic in the data and analysis causes Plan Amendment 03-1 to be not in compliance; or, put another way, the Petitioners have not shown how the accurate topographic information proves Plan Amendment 03-1 will be inconsistent with the Beverly Beach Comprehensive Plan or applicable state laws and regulations. The Beverly Beach Comprehensive Plan does not prohibit Low Density Residential uses in the 100-year floodplain. Data and Analysis/Clustering The Petitioners contend that the data and analysis was flawed because it included a reference to the possibility of clustering dwelling units to avoid adverse impacts to areas unsuitable for development, but the Town has no regulations that allow for or address clustering. Neither the Amended Petition to Intervene nor the evidence presented by the Petitioners makes clear how this alleged error causes Plan Amendment 03-1 to be not in compliance. Any alleged error must relate to the 14.5 acres affected by the amendment. The Petitioners did not show that clustering of dwelling units is planned or necessary on the 14.5 acres. Data and Analysis/Scrub Jays The Petitioners contend that the data and analysis is insufficient because it fails to describe and account for the current use of the site by the Florida scrub jay, a bird listed as threatened by the Florida Fish and Wildlife Conservation Commission and the United States Fish and Wildlife Service. The Town and Department stipulated that scrub jays have been seen on the property. Charles Osbourne and Gail Duggins, a birdwatcher, testified that they have seen scrub jays in the Shelter Cove PUD area on several occasions. They marked Petitioners' Exhibit 15 to indicate eight specific sites within the PUD where they had observed scrub jays. None of the marked sites are located on the 14.5 acres affected by Plan Amendment 03-1. Lotspeich and Associates conducted a scrub jay survey on the 37-acre Shelter Cove PUD in 1997. They observed no scrub jays on the 14.5 acres that will be affected by Plan Amendment 03-1. In the written report of the survey, Lotspeich and Associates concluded that, "no jays reside on-site nor did any birds react as though they were defending territory which extended onto the property." Following a second survey in 2002, Lotspeich and Associates reached the same conclusion that the property "is unlikely to support a resident Florida scrub jay population." The observations of scrub jays made by Mr. Osbourne and Ms. Duggins do not contradict the conclusions of the Lotspeich and Associates reports. Mr. Osbourne and Ms. Duggins did not offer an opinion (and no foundation was laid for their competence to offer such an opinion) that scrub jays reside on the 14.5 acres affected by Plan Amendment 03-1. The Department's ORC Report stated that the originally-proposed amendment was not consistent with Policy E 1.4.3 of the Town's comprehensive plan which calls for the Town to obtain information from appropriate agencies concerning the known locations of listed plant and animal species. The Department recommended in the ORC Report that the Town conduct a survey for gopher tortoises and other listed species. The Department's objection about listed species, however, was not included its subsequent Statement of Intent to Find The Comprehensive Plan Amendment Not in Compliance. The Town had available to it, as part of the data and analysis to support Plan Amendment 03-1 and the Remedial Amendment, the Lotspeich and Associates reports prepared for the United States Fish and Wildlife Service. The reports convey the results of Lotspeich and Associates' surveys of the Shelter Cove PUD property for gopher tortoises, scrub jays and other listed species. It is likely to be the best information available since it is a site-specific, scientific study. The Petitioners did not show that better data were available or that the Lotspeich and Associates reports are flawed. In fact, the Lotspeich and Associates reports were exhibits offered by the Petitioners. Policy E.1.4.3 of the Beverly Beach Comprehensive Plan directs the Town to adopt land development regulations that provide protections for known listed species. Land development regulations are the usual and appropriate tools for applying specific protective measures to specific development proposals. No regulations have yet been adopted by the Town to protect listed species. Listed species are not left unprotected from development activities in the Town, however, since there are both state and federal laws to protect listed species and their habitats. Data and Analysis/Beach Access The Petitioners contend that the data and analysis was insufficient because it indicated that there are five locations in the Town where the public can gain access to the beach, but the Petitioners allege there are only two public beach walkovers that qualify under the Beverly Beach Comprehensive Plan. The beach access issue relates to the Town's recreational level of service standard adopted in the Recreation and Open Space Element of the Beverly Beach Comprehensive Plan. Policy F.1.1.1 specifies that the adopted level of service standard is "Five publicly-owned beach access facilities." The Petitioners apparently believe that the easements acquired by the Town that provide for public beach access across private property do not qualify as publicly-owned beach access facilities as contemplated by the Beverly Beach Comprehensive Plan. The term "publicly-owned beach access facilities" is not defined in the Recreation and Open Space Element, but one can find a statement at page F-2 that, "Access points and parking areas are support facilities for public owned beaches." Therefore, the Town considers an access point, without any man- made structures, to be a "facility." Furthermore, the comprehensive plan, itself, includes a map that depicts the location of the five public beach access points. It must be assumed that these access points met the Town's intent and meaning. By raising the issue of whether the data and analysis for Plan Amendment 03-1 is accurate in referring to the existence of five public beach access points, the Petitioners are collaterally attacking the existing comprehensive plan. Stephen Emmett, the mayor of Beverly Beach, stated that the five public beach access points depicted in the Beverly Beach Comprehensive Plan, as well as a new sixth beach access point, are currently maintained by the Town. Description of the Land Affected The Petitioners alleged in their Amended Petition to Intervene that the Town did not have an adequate legal description for the lands affected by the plan amendment. The issue was not raised in the Petitioners' Pre-Hearing Statement. When the Department objected to the Petitioners' presentation of evidence on this issue because it was not raised in their Pre- Hearing Statement, the Petitioners voluntarily withdrew the issue. Sanitary Sewer Services The Petitioners contend that sanitary sewer services are not adequate for the increased residential density that would result from Plan Amendment 03-1. The Beverly Beach Wastewater Treatment Facility is operated by Ocean City Utilities. Ocean City's application to renew the permit for the facility was denied by DEP in September 2003 because the facility was not in compliance with several DEP regulations. As a result of the denial of Ocean City's permit renewal application, DEP would not allow new customers to connect to the Beverly Beach Wastewater Treatment Facility, including the Shelter Cove PUD. DEP subsequently approved the connection of the Shelter Cove PUD wastewater collection system to the Beverly Beach Wastewater Treatment Facility. Permitting problems associated with the treatment plant was one reason for the Department's objection to the originally proposed plan amendment and the Department's subsequent determination that Plan Amendment 03-1 was not in compliance. No evidence was presented to show that Ocean City Utilities has corrected the deficiencies in the wastewater treatment plant or has obtained a renewal permit from DEP. Nevertheless, the Department determined that Plan Amendment 03-1 is in compliance based on the changes to the Beverly Beach Comprehensive Plan called for in the compliance agreement and adopted in the Remedial Ordinance. Objective D.2.1 of the Beverly Beach Comprehensive Plan was amended to require that existing deficiencies in the wastewater treatment plant be corrected by December 31, 2005. Policies D.2.1.1, D.2.1.2, D.2.1.3 were amended to re-constitute and re-energize a coordination committee to address the deficiencies in the wastewater plant and the feasibility of giving operational responsibility to another entity (such as Flagler County). In addition, the Remedial Ordinance amended Policy A.1.19 of the Beverly Beach Comprehensive Plan to prohibit the Town from issuing a permit or certificate of occupancy for the Shelter Cove PUD "until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code." No dispute was raised about the available capacity of the Beverly Beach Wastewater Treatment Facility to serve the Shelter Cove PUD.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Town of Beverly Beach Plan Amendment 03-1, and Remedial Ordinance 2004-ORD-6, are "in compliance" as defined in Chapter 163, Part II, Florida Statutes (2004). DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005. COPIES FURNISHED: Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Box 3007 St. Augustine, Florida 32085-3007 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Thaddeus Cohen, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should grant the application filed by the DeVries for a coastal construction line (CCCL) permit to build a house (with dolomite drive, septic tank, and drain field) and a dune walkover seaward of the CCCL on their property on the St. Joe Peninsula in Gulf County (Permit GU- 501).
Findings Of Fact The Neighbors Mark and Rita DeVries own 0.163 acre in Block 6 of Peninsular Estates, which is on the St. Joe Peninsula in Gulf County. The St. Joe Peninsula is oriented approximately north and south, with the water of the Gulf to the west. DEP Monument R-83 is on the DeVries' property. Linda McAlpin also owns property in Block 6 of Peninsular Estates seaward of the DeVries' property. She and her husband, Dr. Glenn Mark McAlpin, bought the property in 2001. The dunes on the property had been cleared prior to 1973 for construction of a beach house and driveway. The prior owner's beach house was then damaged by major storms. In 2001 and 2002, the McAlpins got a CCCL permit to build a pile- supported 5,000 square foot, three-story house over a concrete slab used as a parking area, with a dolomite driveway, on her property. There is no private property to the west (i.e., seaward) of her property. In 2006, Dr. McAlpin quitclaimed his legal interest to his wife to insulate it from his potential professional liabilities. Except for the legal consequences of the quitclaim deed, the McAlpins continue to treat the property as a marital asset. Dr. McAlpin continues to handle practically all matters relating to the maintenance of the house, including repairs necessitated by major storms and beach erosion. The Beach and Dune System Besides the McAlpins, there are beach houses to the east (landward) and to the north of the DeVries' property. The house to the north was moved landward from its original location after it suffered major storm damage in 2005. It used to be north of the McAlpin house. There is a house to the south of the McAlpin house. Except for the house that was moved, there is a continuous line of construction seaward of the CCCL to the north and south along the line between the McAlpin house and the house to the south. The McAlpin house also suffered damage from the storms of 2004 and 2005. Sand sediment under the seaward side of the house was scoured out and undermined, and part of the frangible concrete slab and some of the plumbing under that part of the house dropped to the new, lower sand surface. The McAlpins had sand brought in to place under the house and began to build a seawall around the pilings and new sand until the seawall project was halted for failure to obtain a permit. In 2008 and 2009, a beach restoration project was installed on the peninsula, which added sand to the beach and formed a dune immediately seaward of the McAlpin house. There is a dispute whether the DeVries propose to build on a frontal dune. The McAlpins contend that the seaward toe of the frontal dune is seaward of their house, that its crest is on the DeVries' property just east of their common boundary, and that the frontal dune extends landward approximately to the DeVries' common boundary with the property to the east. Michael Dombrowski, P.E., gave expert coastal engineering testimony in support of McAlpins' contention. The DeVries and DEP contend that the beach restoration project re-created the frontal dune that was seaward of the McAlpins' house before the major storms of 2004 and 2005 and that the McAlpins' house sits on a separate primary dune landward of the primary dune. Michael Walther, P.E., and Tony McNeal, P.E., gave expert coastal engineering testimony in support of the contention of the DeVries and DEP. The beach restoration project created a dune, i.e., a mound or bluff of sand, that is landward of the beach, parallel to the shoreline, and continuous in the vicinity. The dune has been planted with native vegetation that is thriving and spreading. Since its installation, the dune has been stable, and sand has been accreting on the dune. The dune is of sufficient vegetation, height, continuity, and configuration to offer protective value up to a major, 40- to 60-year return storm. As such, it is a frontal dune. See § 161.053(5)(a), Fla. Stat. There is a trough between the dune created by the restoration project and dune on which the McAlpins' house sits. (The trough is the landward toe of the frontal dune and the seaward toe of the dune under the McAlpin house). The latter dune system crests at approximately 18 feet North American Vertical Datum of 1988 (NAVD) on the DeVries' property a little landward of the common boundary between the two properties. It is a significant dune in that it has sufficient height and configuration and vegetation (especially on the DeVries' property, which is heavily vegetated) to provide protective value. See Fla. Admin. Code R. 62B-33.002(17)(a). The alterations made to the McAlpin property by the prior owner adversely affected the alongshore continuity of the dune system, but it still is a primary dune in that it affords a measurable level of protection to upland property and structures from the predictable erosion and storm surge levels associated with coastal storm events. See Fla. Admin. Code R. 62B- 33.002(17)(b). The Proposed Beach House The DeVries' application is to build a pile-supported 3,000 square foot, two-story house over a concrete slab used as a parking area, with dolomite drive and a dune walkover. The house would be up to approximately 110 feet seaward of the CCCL, landward of the adjacent McAlpin house, and landward of the 30- year erosion line (DEP's projection of the seasonal high-water line 30 years in the future). It is undisputed that the proposed construction will conform to the requirements of the Florida Building Code. The DeVries' proposed house would be on 18 one-foot square piles, with two eight-inch square piles supporting the wooden deck. This construction method, which is standard, minimizes impacts from erosion and scour. The DeVries propose a septic tank and drain field between the house and the common boundary with their neighbor to the east (i.e., the landward side of the property). This optimal location for the septic tank and drain field is made possible by the orientation and dimensions of the proposed house (a relatively narrow rectangle with the longer sides in the north-south direction). Petitioners contend that impacts should be minimized by requiring construction of a narrower, taller structure. The footprint already is smaller than the footprint of the McAlpins' house. Requiring a further reduction would create problems in the design of the interior space of the house. It was proven that the dimensions of the house proposed by the DeVries is reasonable and sufficiently minimizes impacts. There will be no net excavation of in situ sand for the construction authorized in proposed Permit GU-501. Sand excavated for the septic tank and drain field, along with additional sand brought to the construction site, will be used to fill a bowl-like feature in the middle of the DeVries' property and level the ground for the concrete slab under the DeVries' proposed house. There will be a net addition of sand to the site. The concrete slab beneath the DeVries' proposed house is designed to be partially cut so as to break into smaller pieces in a catastrophic storm event and not cause collapse, displacement, or other structural damage to the elevated portion of the building or supporting foundation system. Cf. Fla. Admin. Code R. 62B-33.002(9). The concrete slab proposed beneath the house was reduced in size to eliminate a roughly seven-foot by 16-foot rectangle in the northwest corner and not to disturb a higher dune feature that exists in that location. Petitioners contend that the DeVries' concrete slab could be further reduced in size to minimize impacts to the primary dune. However, it was proven that the size of the concrete slab is reasonable and sufficiently minimizes impacts. The driveway authorized by proposed Permit GU-501 will narrow from approximately 30 feet wide at the house to approximately 12 feet at the County right-of-way, which reduces impacts (and is narrower than the McAlpins' driveway). Petitioners contend that the driveway should be narrower to minimize impacts. It was proven that the width of the proposed driveway is reasonable and sufficiently minimizes impacts. Frangible curbing is proposed along both sides of the driveway. This will prevent or discourage driving elsewhere on the lot. The Proposed Dune Walkover The DeVries' proposed dune walkover would be connected by stairs to a wooden deck off the northern end of the first story of the house. From the stairs, the dune walkover proceeds for a short distance in a northerly direction, then proceeds in a westerly direction towards the beach within a 10-foot wide access easement. It would be four feet wide and at least two feet above the ground surface and would pass within ten to 20 feet of the north side of the McAlpins' house. It would be supported by four-inch by four-inch wooden piles. Petitioners contend that the DeVries' proposed dune walkover should be denied because there is a public beach access off White Sands Drive approximately 500 feet to the south. The purpose of the dune walkover would be to avoid the impacts that would occur if people staying at the DeVries' beach house use the beach access easement instead of the public access. The existence of the public access is not a ground to deny private beach access via a dune walkover that meets CCCL permitting criteria. Petitioners also contend that the proposed dune walkover should be denied because a ground-level foot path was not considered. Since the purpose of the dune walkover is to avoid the impacts of an on-grade footpath, that option was considered and rejected. Petitioners contend that the proposed dune walkover should be reduced to three feet. But it was proven that the proposed four-foot width is standard and reasonable; that the construction method already minimizes impacts; and that the impacts from a three-foot wide walkover would not be much less than the proposed walkover. Petitioners also contend that the DeVries' dune walkover should use rounded piles, not square ones as proposed. They base this contention on DEP's Beach and Dune Walkover Guidelines (Dune Walkover Guidelines), which state that rounded piles are preferred. Rounded piles are not mandatory, and it was proven that the proposed piles are reasonable and sufficient. Petitioners contend that the proposed dune walkover actually is wider than four feet overall because the application drawings make it appear that the wooden piles are outside the walkway. However, it was proven that the drawings are in error to that extent and that the maximum width of the dune walkover actually will be four feet, as required by special condition 8 of proposed Permit GU-501. Petitioners contend that the proposed dune walkover must be denied because the site plan depicts it as terminating on the frontal dune created by the 2008 beach restoration project, which is contrary to the Dune Walkover Guidelines. Petitioners also contend that, while the Dune Walkover Guidelines require adequate elevation to clear the vegetation on the dunes, every part of the proposed walkover may not clear the dune entirely, according to the elevations in the site plan and construction drawings in the DeVries' application. Special condition 8 of proposed Permit GU-501 addresses Petitioners' contentions. It requires the proposed dune walkover to extend up to (but more than ten feet seaward of) the existing line of vegetation (not the line of vegetation at the time of the survey included as part of the DeVries' application) and requires that "the deck of the walkover structure shall maintain an elevation above the existing dune vegetation canopy . . . ." Also, under special condition 8, "[t]he optimum siting of the walkover structure shall be determined by the [DEP] staff representative during the preconstruction conference to provide maximum protection to the existing dune topography and vegetation located on the site." This will ensure compliance with the Dune Walkover Guidelines, which defines optimal siting. Petitioners contend that the proposed dune walkover must be denied because the DeVries' beach access easement does not extend to the existing vegetation line. Proposed GU-501 does not authorize a trespassing. See Fla. Admin. Code R. 62B-33.0155(4). If additional access easement is required to reach the beach, it will have to be acquired. Otherwise, the proposed dune walkover cannot be built. To mitigate for the minimized impacts from the DeVries' proposed construction, special condition 5 of proposed Permit GU-501 requires the DeVries to "plant a mix of a minimum of three native salt-tolerant species within any disturbed areas seaward of the control line, including the septic tank and drain field area." Obviously, there will not be mitigation planting where the concrete slab and dolomite driveway will be. The plants must be indigenous species or approved by DEP, and "a minimum of 80 percent of the planted areas shall be covered with the selected species." Sod and planting invasive nuisance species are not authorized. In addition, the site plan, which is part of the application, has a proposal to "maintain [planted native vegetation] adequate by temporary irrigation." Petitioners contend that the GU-501 conditions are not sufficient because the indigenous plants are not specified. However, the evidence provided reasonable assurance that appropriate species would be planted. Petitioners also contend that the GU-501 conditions are not sufficient because the success criteria are inadequate. Specifically, Petitioners compare the 80 percent coverage requirement in special condition 5 with the 90 percent success rate after 180 days and after 360 days required by the conditions of the beach restoration project. The beach restoration project's conditions could be viewed as less strict than the GU-501 conditions. In any event, the GU-501 conditions provide reasonable assurance of mitigation of the impacts. Petitioners contend that temporary impacts are not mitigated. However, temporary impacts will be minimized by special conditions 1 (pre-construction conference) and 3 (requirement of optimal construction fencing, including to protect the dune feature at southwest corner of the DeVries' property), 4 (only minimum disturbance required for construction allowed), and 9 (requirement to remove all rubble and construction debris to a location landward of the CCCL). This small level of risk from temporary disturbances during construction and before mitigation plantings take hold is unavoidable. It does not warrant the denial of a CCCL permit. In accordance with DEP's requirements, the proposed dune walkover is designed as a minor, expendable structure, and partitions of the house are designed to break away or be "frangible"—i.e., to "collapse from a water load less than that which would occur during a 100-year storm event without causing collapse, displacement, or other structural damage to the elevated portion of the building or supporting foundation system." See Fla. Admin. Code R. 62B-33.002(9). These designs help prevent larger, unmitigated storm damage to the beach and dune system. Due to its proximity, the McAlpins' house could sustain additional damage from the frangible parts of the DeVries' construction during such a storm. However, those risks are contemplated by DEP's frangibility requirements and are relatively small. Those risks do not warrant the denial of a CCCL permit. The County Right-of-Way There is a paved road called White Sands Drive that approaches the McAlpins' dolomite driveway and the proposed location of the DeVries' dolomite driveway from the east. The McAlpins' driveway extends from their house in a southeasterly direction, crosses the County right-of-way for Blue Water Circle (which has not been built), and connects with the paved surface of White Sands Drive in the curve between its east-west segment and its north-south segment. The DeVries' proposed dolomite driveway would terminate at the County right-of-way for Blue Water Circle to the northeast of the McAlpins' driveway, where the elevation is approximately 13 to 14 feet NAVD (similar to the elevation of the McAlpins' driveway). There is a relatively narrow dune feature between the McAlpins' driveway and the DeVries' proposed driveway that rises to an elevation of approximately 19 feet NAVD in the center of the dune feature. This dune is significant in that it has sufficient height and vegetation to provide protective value. See Fla. Admin. Code R. 62B-33.002(17)(a). In itself, it is not a primary dune because it does not have the configuration and alongshore continuity to afford a measurable level of protection to upland property and structures from the predictable erosion and storm surge levels associated with coastal storm events. See Fla. Admin. Code R. 62B-33.002(17)(b). This dune feature extends into the County right-of- way. Depending on the route taken, a car using the DeVries' proposed driveway might drive over or through a small part of the extreme southeastern end of this dune feature. It might be possible to avoid the dune feature entirely by hugging the eastern side of the driveway and, to the greatest extent possible, using the part of the County right-of-way that is used by the neighbor to the east to access their dolomite driveway from White Sands Drive. If not entirely avoiding the dune feature, it would be possible to drive over or through only a very small part of the dune feature where elevations are no greater than 14 to 15 feet NAVD. DEP and the DeVries contend that impacts to the County right-of-way should not be considered because they were not timely raised. However, Petitioners' allegations were broad enough to include consideration of those impacts. DEP and the DeVries also contend that impacts to the County right-of-way are prohibited by general and special conditions. General permit conditions include: Construction traffic shall not occur and building materials shall not be stored on vegetated areas seaward of the control line unless specifically authorized by the permit. If the Department determines that this requirement is not being met, positive control measures, such as temporary fencing, designated access roads, adjustment of construction sequence, or other requirements, shall be provided by the permittee at the direction of the Department. . . . * * * The permittee shall not disturb existing beach and dune topography and vegetation except as expressly authorized in the permit. Before the project is considered complete, any disturbed topography or vegetation shall be restored as prescribed in the permit with suitable fill material or revegetated with appropriate beach and dune vegetation. * * * (j) Any native salt-tolerant vegetation destroyed during construction shall be replaced with plants of the same species or, by authorization of the Department, with other native salt-tolerant vegetation suitable for beach and dune stabilization. Unless otherwise specifically authorized by the Department, all plants installed in beach and coastal areas - whether to replace vegetation displaced, damaged, or destroyed during construction or otherwise - shall be of species indigenous to Florida beaches and dunes, such as sea oats, sea grape, saw palmetto, panic grass, saltmeadow hay cordgrass, seashore saltgrass, and railroad vine, and grown from stock indigenous to the region in which the project is located. Fla. Admin. Code R. 62B-33.0155(3). In addition, special condition 4 of proposed Permit GU-501 states: "Existing vegetation shall be disturbed only to the minimum extent necessary to complete work within the authorized construction limits." Finally, proposed permit GU-501 does not authorize the construction of a driveway through the County right-of-way. See Fla. Admin. Code R. 62B-33.0155(4) (permit does not authorize trespass). Notwithstanding the conditions and limitation of proposed GU-501, it is reasonable to foresee that, to use the proposed driveway, cars will drive through the County right-of- way between the DeVries' proposed driveway and White Sands Drive. The extent to which the dune feature would be impacted must be considered in this case. See Fla. Admin. Code R. 62B-33.002(33) (impacts can be direct or indirect). It appears possible to use the DeVries' proposed driveway and avoid any parts of the dune feature in the County's right-of-way above the 14-foot NAVD elevation by using the part of the right-of-way currently being used for access by the DeVries' neighbor to the east. To minimize impacts, this should be required as an additional condition of GU-501. Construction of the proposed beach house and dune walkover on the DeVries' property will not alter the coastal system by measurably affecting the existing shoreline change rate, significantly interfering with its ability to recover from a coastal storm, disturbing topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure or the protective value of the dune system is significantly lowered. As such, there will be no significant impacts. See Fla. Admin. Code R. 62B-33.002(33)(b).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing GU-501, with an additional condition to use the part of the County's right-of-way currently being used for access by the DeVries' neighbor to the east and avoid any parts of the dune feature in the right-of-way above the 14-foot NAVD elevation to access the DeVries' proposed driveway. DONE AND ENTERED this 2nd day of November, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2011. COPIES FURNISHED: Ross Stafford Burnaman, Esquire 1018 Holland Drive Tallahassee, Florida 32301-4508 Kelly L. Russell, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 E. Dylan Rivers, Esquire Ausley and McMullen, P.A. 123 South Calhoun Street Tallahassee, Florida 32301-1517 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
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.
