Findings Of Fact On September 23, 1983, Hollywood submitted a permit application to DNR for construction of the proposed project which is the subject matter of this proceeding. DNR designated that permit application as Permit Application 50-41. The proposed project is actually the first phase of a two-phase project, Phase II of which has already been permitted by DNR. Phase I, which is the subject of Permit Application 50-41, consists of an extension of existing Surf Road in the City of Hollywood, an extension of an existing asphalt boardwalk, construction of a parking area with landscaped island, swale, and associated lighting. The excavated fill removed from the site of Phase I is to be used in the construction of a dune which is encompassed within Phase II of the project. The properties on which Phase I and Phase II are to be constructed are owned by the City of Hollywood and are located seaward of the Coastal Construction Control Line and landward of the Erosion Control Line. The Summit Condominium is a condominium development located west of South Surf Road in the City of Hollywood, and is directly adjacent and contiguous to the property upon which the aforementioned project is to be constructed. Petitioner is the builder and developer of the Summit Condominium and, in addition, is the fee simple owner of approximately 15 units in that development. Phase I of the proposed project, which is the permit application at issue in this proceeding, provides for the construction of a 121-space public parking area which will be approximately 62 feet wide and 605 feet long, and will extend approximately 95 feet seaward of the Coastal Construction Control Line. The parking lot will be constructed with a six-inch limerock base over a six-inch crushed limerock subbase, and will be surfaced with a one and one-half- inch asphalt wearing course. The parking lot is designed with a definite landward slope, so that stormwater will sheet flow across the parking lot away from the dune system. There is no evidence of record in this proceeding which would in any way justify a conclusion that stormwater runoff from the parking lot area will have any adverse effect on the dune system seaward of the lot. Stormwater runoff once it has left the parking lot surface will be collected in a swale and drainage ditch system located landward of the paved parking lot surface. The drainage ditch will be composed of sandy material presently located on the site and is designed on a 1.2 to 1 slope. In addition, Wedelia is to be planted in and around the drainage ditch system in order to stabilize the slopes of the ditch. The ditch and swale system is designed to allow most stormwater runoff to percolate into the soil, with any excess being collected in the ditch itself and transmitted in a northerly direction. A drainage calculation study prepared in conjunction with this proceeding demonstrates that the drainage capacity for the proposed ditch meets minimum standards contained in the South Florida Building Code, as applied by the City of Hollywood. As the ditch fills with stormwater, the water will flow in a northerly, shore parallel direction to Jefferson Street, which is located north of both the proposed project and the Summit Condominium. From Jefferson Street, runoff from the project site will flow westerly to Highway A-1-A where an existing stormwater sewer system is located. If for some reason that system proves insufficient to handle runoff, the runoff will then travel across A-1-A into the intracoastal waterway. There is no competent evidence of record in this proceeding to demonstrate that stormwater runoff from the project site will, under any conditions, flow onto Petitioner's property. Phase I of the project has been designed to minimize the potential for the creation of aerodynamically or hydrodynamically propelled missiles in the event of a major storm. The asphalt surface of the parking lot is designed to break into chunks which will settle into the sand or water when exposed to wind and water forces. The parking meters are set four feet into the ground which reduces their potential to act as missiles, but even should the beach recede to the point where the meters are installed, evidence of record in this proceeding establishes that they will fall to the base of the eroded dune wall and will be washed out to sea rather than be propelled shoreward either by water or air. Various storm surge computer models for pre- and post-construction conditions at various locations on the property were performed. The result of these models shows that there will be no difference in impact on the beach dine system and adjacent property between the pre- and postconstruction profiles in the event of a ten-year storm. Further, computer models actually showed that there will be less erosion for the post-construction profile than for the preconstruction profile in the event of a twenty-year storm surge. In the event of a fifty-year or greater storm event, the beach profile for both pre- and postconstruction in the project area would be inundated, so that the impact of such a storm will be the same with or without the proposed construction. Evidence of record does, however, establish that based upon postconstruction conditions as proposed in the permit application it would take a greater storm to erode material from the postconstruction profile, thereby establishing that the proposed project will afford greater protection than existing topography. It appears from the record in this proceeding that Hollywood's Permit Application 50-41 is complete, and that DNR has in its possession all information necessary and required by law for the processing of the permit application. Engineering plans submitted in support of the application for Phase T have been signed and sealed by a professional engineer registered in the State of Florida.
Recommendation RECOMMENDED That a Final Order be entered by the State of Florida, Department of Natural Resources, granting the requested permit. DONE AND ENTERED this 25th day of October, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1983. COPIES FURNISHED: Steven L. Josias, Esquire Donald J. Dooty, Esquire 3040 East Commercial Boulevard Fort Lauderdale, Florida 33308 Deborah A. Getzoff, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Leonard Lubart, Esquire Post Office Box 2207 Hollywood, Florida 33022 Elton J Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303
Findings Of Fact Petitioner, Frenchy's Rockaway Grill, Inc., is the owner and operator of a restaurant and alcoholic beverage establishment located at 7 Rockaway Street, Clearwater, Florida. Petitioner purchased the property in 1991. Michael Preston is president of Petitioner. Petitioner's establishment is immediately adjacent to the Gulf of Mexico and Clearwater beach on the west, to the north is a public parking lot, to the east is a motel, and to the south is the Clearwater Beach Hotel, which is owned and operated by Hunter Hotel Co., as indicated above. On the beach side of Petitioner's establishment there is an existing 972 sq. ft. wooden deck. The existing deck was initially constructed on or about 1987 by prior owners without receiving appropriate variance approvals. Subsequent alterations to the deck occurred between 1987 and 1991, also without appropriate variance approvals. In 1991 Charles and Ypapanti Alexiou/Anthony Alexiou, former owners of the subject property, filed an application for variance approval with the Board seeking three variances relating to the construction of the deck at the 7 Rockaway establishment. Specifically, the variances sought were: "1) 55.5 ft. to permit deck seaward of the coastal construction control line; 2) 15 ft. to permit a deck zero feet from a street right-of-way; and, 3) seven parking spaces to permit a 1,338 sq. ft. deck at 7 Rockaway Street, Miller's Replat, Lot 2 & vacated beach Drive on W and Lot 3, zoned CR 28 (resort commercial) & OS/R (open space recreation)." At public meeting on August 8, 1991, the application was considered by the Board. At that time Mr. Cline, as counsel for Hunter appeared in opposition to the application stating that approval of the variance requests would adversely impact the Clearwater Beach Hotel, that the request was for economic gain, that any hardship was self-imposed, and that development and traffic in the area was already heavy. The Board, however, granted the variance requests as to variances number 1 and number 2., and as to the third request, the Board denied the proposed 1,338 sq. ft. deck, but approved a variance of five parking spaces to permit the existing deck of 972 sq. ft. On or about July 13, 1993, a variance application was filed with the Board by Howard G. and Jean B. Hamilton and Palm Pavilion of Clearwater, Inc., seeking approval of four variances required for an 800 sq. ft. expansion of an existing deck at a restaurant at 10 Bay Esplanade, Clearwater Beach, Florida. The Palm Pavilion applicants were also represented by Mr. Cline. Like Petitioner's establishment, Palm Pavilion is a beachfront restaurant, which is located directly across the public parking lot to the north of Petitioner's establishment. Unlike Petitioner's establishment, Palm Pavilion is bordered by parking to the south and the east, and is not immediately adjacent to other buildings. On August 26, 1993, the Board granted the Palm Pavilion variance application for expansion of an existing beachfront deck with certain conditions. On October 6, 1994, Petitioner submitted its application to the Board requesting five variances required for a 650 sq. ft. expansion of the existing wooden deck at 7 Rockaway Street. Specifically, the variances sought were: 1) 13.22 ft. to permit a lot depth of 86.78 ft. where 100 ft. is required; 2) 8.2 ft. to permit it a rear setback of 6.8 ft. where 15 ft. is required; 3) 14 percent to permit 11 percent of open space where 25 percent is required; 4) three parking spaces to permit zero parking spaces where three additional are required; and, 5) 52.14 ft. to permit a structure seaward of the coastal construction control line. The subject property at 7 Rockaway Street is properly zoned CR-28 (resort commercial). Any scrivener's error indicating that the property is zoned OSC (open space recreation) has been corrected. Petitioner's restaurant, Frenchy's Rockaway Grill, is a popular beachside establishment. It is one of very few freestanding restaurants fronting the Gulf of Mexico on Clearwater Beach. Some patrons particularly enjoy dining on the open air deck adjacent to the beach. During peak hours, there is often over an hour's waiting time for tables on the deck. Petitioner is currently unable to accommodate the demand for seating on the beachside deck. Petitioner would sustain an economic benefit if more patrons could be accommodated on an expanded deck. Because of the size constraints of the lot and the establishment's location directly on the beach, development and improvement of the facility is highly restricted. The back of some residential rooms of the Clearwater Beach Hotel are immediately adjacent to the south of Petitioner's establishment. There are small bathroom windows from these residential rooms that face Petitioner's establishment. Petitioner's proposed expansion of the open air deck would place the proposed deck in very close proximity to the back of these residential hotel rooms. The City's staff reviewed the Petitioner's application and recommended approval with the following conditions: 1) the applicant shall obtain the requisite occupational license within 12 months; 2) the applicant shall obtain the necessary building permit within 6 months; 3) there shall be no outdoor entertainment and no outdoor speakers; 4) the applicant shall obtain the requisite alcoholic beverage separation distance variance from the City Commission. Petitioner agreed to the conditions recommended by staff. The recommendations of staff are not binding on the Board. In addition to the application for the five variances filed with the Board, Petitioner also filed a conditional use request with the Planning and Zoning Board. The conditional use request was approved on September 13, 1994, and imposed certain other conditions including the construction of a six foot wall on the south side of the proposed deck to buffer the adjoining hotel. Petitioner agreed to the conditions imposed by the Planning and Zoning Board.
The Issue The ultimate issue in this proceeding is whether proposed Florida Administrative Code Rule 61G15-21 is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner resides in Mebane, North Carolina. Sometime in April 2003, Petitioner requested the Board to release certain information that is public information within the meaning of Chapter 119, Florida Statutes (2003). Sometime in October 2003, the Board provided some of the information requested by Petitioner. The information included "scores, converted and raw and seat numbers of test applicants." Respondent did not include the "listed areas as agreed." The Board charged Petitioner $90.00 for providing "what they felt Petitioner should have," and the Board was "quite insulting about it." On a date not identified in the Petition, Petitioner asked a representative of the Board if the Board "currently" had an advertisement in the Florida Administrative Weekly concerning a "rule challenge that dealt with raw scores or scores in general." The representative stated there was no proposed rule change pertaining to scores. Petitioner asked for any and all data pertaining to scores as a rule change. The representative for the Board stated there was no such information to provide. At some time not identified in the Petition, Petitioner requested a copy of any records that "had been submitted" to the [B]oard pertaining to scores as part of a rule change. The representative of the Board repeated that nothing had gone before the Board pertaining to applicants sitting for the "Intern Test or the PE Exam." The Florida Administrative Weekly dated October 10, 2003, contains a proposed change to Florida Administrative Code Rule 61G15-21 that is directly related to Petitioner's "public information request." Petitioner believes that the Board had to approve the rule change before the Board advertised it on October 10, 2003, and that the previous denials by the Board's representative constituted "unethical" conduct. Petitioner requested a public hearing pursuant to the advertisement in the Florida Administrative Weekly on October 10, 2003, but doubts if the Board will comply with the "Florida Administrative Laws" based on what Petitioner believes to be the Board's "previous unethical behavior." The Board may be "in violation of The Florida Sunshine Law and the Florida Administrative Laws." The behavior of the Board's representative "in trying to deceive" Petitioner on this issue is "certainly a red flag" and indicates a necessity to notify all previous testing applicants to make sure they are aware of the proposed rule change before adoption. The Florida Administrative Weekly alone is not "a well read media for the general [sic] affected masses." Florida law states that any substantially affected person may seek an administrative determination of the invalidity of a proposed rule by filing with DOAH a petition seeking such a determination within 21 days after the date of publication of the notice required by Chapter 120, Florida Statutes (2003). Petitioner timely filed a petition challenging the proposed change to an existing rule. Petitioner believes the term "substantial" denotes "having a reasonable basis in law and fact" and that the term "reasonable" denotes "that which is fair, proper or moderate under the circumstances." Petitioner believes it is Respondent's "negligence in complying with FS 120, FS 119 that gives Petitioner standing in this case." Petitioner made a "public information request" sometime in July 2003. Respondent did not provide the information in the months of August and September 2003. In September 2003, Respondent requested Petitioner to pay $90.00 for release of part of the information requested by Petitioner. The information Respondent agreed to release included: statistical data broken down by race and sex identifying each applicant by assigned number and a list of the "number of applicants" who sat for the past five professional engineer exams; the number of times "testees" took the test; raw and converted scores; the "city of the testees"; and the race and sex of the "testees." When Respondent requested the payment of $90.00, Respondent failed to disclose that Respondent would not release all of the requested information. Respondent did not release the "testees' candidate numbers." There may be no statutory exemption for "testees' candidate numbers." Petitioner believes Respondent violated Chapter 119, Florida Statutes (2003), by exceeding the statutory time limit for releasing public records and by not releasing all of the information that Petitioner requested. Petitioner believes that Petitioner is entitled to all of the information she requested, asserts that it is a misdemeanor to violate Chapter 119, Florida Statutes (2003), and alleges that such a violation is grounds for removal or impeachment. Petitioner believes Respondent failed to grant Petitioner a public hearing in violation of applicable rulemaking procedures. During a conversation with a representative for Respondent concerning Petitioner's request for information, the representative failed to advise Petitioner of the proposed rule change advertised in the Florida Administrative Weekly on October 10, 2003. If the proposed rule change were adopted, "without credibly addressing the remaining issues of Petitioner's public records request," there may be no further opportunity to retrieve the data now in the possession of Respondent. Respondent accepted payment for the requested data, cashed Petitioner's check, and "arrogantly" released what information Respondent felt Petitioner should have. Counsel for Respondent advised Petitioner that Respondent would not cash Petitioner's check, but would return the check to Petitioner. Counsel for Respondent also threatened in a telephone conversation to advise Respondent not to grant the request and to require Petitioner to come to Florida and "go through the records" herself. Petitioner requested counsel for Respondent to put the requested information in "chart form." Counsel stated he would not advise Respondent to place the information in any particular format. Counsel was "extremely hostile and arrogant" and "later apologized for his behavior." However, Petitioner believes counsel for Respondent is "extremely hot tempered with certain people." Counsel for Respondent stated to Petitioner that Respondent would release the information "just as it is" in Respondent's database, and Petitioner could then put the information in any format she desired. That is "exactly what Respondent did. The information was extremely fragmented and difficult to read." Respondent had "no credible basis" for denying Petitioner the requested information. Petitioner believes that Respondent's action, "at best was deceptive and nonresponsive to Petitioner's inquiry." The trier of fact cannot summarize the next assumptive finding from Petitioner's response to the Motion to Dismiss, but must quote from the response. On October 16, 2003, Petitioner asked [Respondent's representative] via e-mail for the immediate release of all data whether electronic or written or telephonic messaging; and any and all communications between staff, and any other entity, person, corporation, business, governmental agency relative to the proposed change of scores, etc. Identify the date of origination of the proposed rule change and the reason for the proposed change. Please indicate any Board action on this issue and the date of Board action. Please include any supportive reports or data submitted to the Board to support or necessitate the need for a change in policy. Lastly, will the legislature need to act on your proposed rule change? As the e-mails will illustrate [the representative] continued to deny that any rule change existed pertaining to the very same public records request by Petitioner. The actions of [the representative] breached the public trust [and] eroded the fiber of 'ethics' in government. When Petitioner found the proposed rule change in the October 10, 2003, issue of the Administrative Weekly, [the representative] was listed as the contact person. Petitioner believes Chapter 120, Florida Statutes (2003), creates a two-pronged right to participation in the rulemaking process, i.e., "those [at] whom the intended action is directed and those who may just be affected by the new rule." Rulemaking procedures require notice to all persons named in the rule and to all persons who have timely requested notice. Respondent conducted its "rule change meeting in a closed meeting not open to the public." The records of that meeting are not available to the public. The Florida Administrative Weekly is not a well read publication for the "affected parties, directly affected parties, or the intended target parties." Therefore, Petitioner believes "in the spirit of open government, Respondents [sic] failed to meet the standard."
The Issue Whether Respondent violated Sections 112.3143(3)(a), 112.3143(4), and 112.313(7)(a), Florida Statutes (1993), by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact All times pertinent to this proceeding, Respondent served as a member of the Mexico Beach Planning and Zoning Board (Zoning Board). Respondent began his service on the Board in mid-April, 1994. In that public position, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. In late 1993, Respondent contracted with the owners of Toucans Restaurant (Toucans) to build an additional story on the existing building. Toucans is a bar/restaurant located on Highway 98 in Mexico Beach, Florida. The Zoning Board is empowered to make decisions relative to zoning and rezoning matters, including the granting of parking variances. In furtherance of his work for Toucans, Respondent sought a parking variance from the Zoning Board. To this end, Respondent appeared before the Zoning Board on three separate occasions. The last time Respondent appeared before the Zoning Board regarding the parking variance for Toucans was April 19, 1994, shortly after his appointment to the Zoning Board. At that meeting, Respondent was representing Toucans before the Zoning Board and attempting to secure a parking variance for Toucans. At the April 19, 1994 meeting, when Respondent presented the Toucans parking variance issue before the Zoning Board, he participated in the Zoning Board's discussion of the matter. Prior to his participating in the Zoning Board's discussion of the Toucans matter on April 19, 1994, Respondent failed to formally announce his interest in the Toucan project. Respondent failed to file a written memorandum disclosing his interest in the matter prior to the April 19, 1994 meeting. Respondent failed to orally disclose the nature of his interest in the Toucans project at the April 19, 1994 Zoning Board meeting. At its April 19, 1994 meeting, the Zoning Board voted on the Toucans project. Respondent abstained from voting on the Toucans parking variance request at that meeting, but did not file a written memorandum disclosing his interest in the project within fifteen days of the vote. Respondent filed a Memorandum of Voting Conflict with respect to the Toucans parking variance request on May 27, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Final Order and Public Report be entered by the Florida Commission on Ethics finding that Respondent, Jim McCoullough, violated Sections 112.3143(3)(a), 112.3143(4) and 112.313(7)(a), Florida Statutes (1993), and imposing a civil penalty of $300.00. DONE and ENTERED this 30th day of April 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April 1997. COPIES FURNISHED: Eric Scott, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Kerrie Stillman Complaint Coordinator Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Mr. James Naus 115 Fifth Street Mexico Beach, Florida 32410 Bonnie Williams Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether the application of Respondent Lewis for an Environmental Resource Permit to construct a finger pier qualifies for an exemption from the need to obtain such a permit.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Environmental Protection is responsible for administering the provisions of Chapter 373, and it is specifically responsible for issuing permits for the construction of docks in and over surface waters of the State of Florida. Sections 373.019(2); 373.026; and 373.413, Florida Statutes. Mr. Lewis applied to the Department for an environmental resource permit to construct a finger pier extending into a waterway known as Cypress Creek, which is classified as Class III Waters and is located on the Intracoastal Waterway in Palm Beach Gardens, Florida. According to the plans submitted with the application, the finger pier will be three feet wide, will extend thirty-six feet from the bulkhead into Cypress Creek, and will extend approximately twelve feet past the mean low water line. The plans show that the pier will be built on pilings and will consist of 108 square feet of surface area. The finger pier will be used to dock one boat and will be used as a private dock. When Mr. Lewis's application was initially reviewed, the Department assumed that Cypress Creek flowed over state-owned submerged lands. This assumption was reflected in the August 21, 1998, letter from the Department notifying Mr. Lewis that his proposed finger pier qualified for an exemption from the requirement for an environmental resource permit pursuant to Rule 40E-4.051(3)(b), Florida Administrative Code. The Department subsequently learned that Cypress Creek is an artificially created waterway, and, therefore, the land beneath the creek is not state-owned submerged land. Mr. and Mrs. Lewis own fee simple title to Lot 16 in Paradise Point, in Palm Beach Gardens, Florida. Petitioners Douglas Dedo and Kathy Crawford own Lot 17 in Paradise Point. Lot 16 is adjacent to Lot 17 but has no access to Cypress Creek. Mr. Dedo's and Ms. Crawford's predecessor-in-interest in Lot 17 conveyed to Mr. Lewis's predecessor-in-interest an easement over the westernmost twelve feet of Lot 17, "for purposes of ingress and egress to Cypress Creek and for docking purposes." 1/ The property owned by Petitioners Scott and Vicky Porter is Lot 4 of Cypress Creek Point, which abuts the easement on the west side. Mr. Dedo and Ms. Crawford have a marginal dock, that is, a dock which is roughly parallel to the shoreline, extending into Cypress Creek to the east of Mr. Lewis's easement. Mr. and Mrs. Porter have what is known as a "T-dock," extending into Cypress Creek to the west of Mr. Lewis's easement. The Porter's T-dock extends from the retaining wall eighteen feet into Cypress Creek. Water Quality The proposed finger pier will be constructed of wood, which will not adversely affect water quality. However, the proposed finger pier will be built on pilings, and the primary concern regarding the effect of this project on water quality is that the process of driving the pilings for the finger pier causes the sand to lift from the bottom of the waterway, causing turbidity, or cloudiness, in the water. The turbidity will be substantially mitigated for this project because the contractor will use turbidity screens to trap any sediment in the area where the pier is being constructed and around the pilings while they are being driven into the bottom of the creek bed. In order to construct the finger pier, it will be necessary to drastically trim, and probably destroy, two or three young mangroves that are growing on the creek bottom in front of the retaining wall on the western edge of the easement. In addition, it will be necessary to lightly trim a few other young mangroves adjacent to the proposed pier, but these mangroves should not be destroyed. Although mangroves contribute to good water quality, the effect of the destruction of two or three young mangroves on water quality in Cypress Creek would be negligible. Navigation In the area in front of Lot 17, the lot owned by Mr. Dedo and Ms. Crawford and on which Mr. Lewis's easement is located, Cypress Creek flows roughly east-and-west, with the entrance to the Intracoastal Waterway to the east of Lot 17. Just to the west of the easement, in front of Mr. and Mrs. Porter's property, the creek narrows and curves to the south. As a result of the narrowing of Cypress Creek in front of Mr. and Mrs. Porter's property, Mr. Lewis's proposed finger pier will not extend as far into Cypress Creek as the existing T-dock on the Porter's property. 2/ Most of the boats that pass the area where Mr. Lewis proposes to construct the finger pier are twenty-to-thirty feet long and have drafts from one-to-two feet. At mid-tide on May 12, 1999, the water was four feet deep in the center of the channel in Cypress Creek, directly in front of Mr. Lewis's easement. The measurement from waterline- to-waterline in front of the easement was ninety-three feet. The measurement from waterline-to-waterline in front of Mr. and Mrs. Porter's property at mid-tide on May 12, 1999, was sixty- eight feet. In navigating Cypress Creek, boaters curve toward the area where Mr. Lewis's pier will be located and, at low tide, "hug" the Porter's dock because of a shallow area which extends an undetermined distance into the creek from the north bank opposite the Porter's property. The water thirty-six feet from the bulkhead at the location of the proposed pier was four feet deep at low tide, as measured by Petitioner Dedo. At low tide, again as measured by Petitioner Dedo, approximately twenty-two feet of Mr. Lewis's proposed pier would extend over dry land, with approximately fourteen feet of the pier extending over the water. At low tide on May 13, 1999, as measured by Petitioner Scott, Cypress Creek was sixty-four feet wide from waterline-to- waterline in front of the easement. Therefore, boaters would have approximately fifty feet of water in which to navigate past the proposed finger pier. 3/ Flood control The proposed finger pier will not impede water flow through Cypress Creek and, therefore, will not adversely affect flood control. The pilings will be spaced twelve feet apart, and there will be no wave break or baffle or other impediment to water flow attached to the pier. Summary The evidence presented at hearing is sufficient to establish with the requisite degree of certainty that the three- foot by thirty-six-foot finger pier Mr. Lewis proposes to construct on the easement at the western edge of Lot 17 of Paradise Point will not violate water quality standards, impede navigation, or adversely affect flood control.
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 finding that the finger pier Larry Lewis proposes to construct on Cypress Creek in Palm Beach Gardens, Florida, is exempt from the requirement that an environmental resource permit be obtained in order to construct such a structure in and over the waters of the State of Florida. DONE AND ENTERED this 26th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 26th day of October, 1999.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On March 26, 1991 Venice applied to the Department for a CCCL permit to construct a 475 foot wooden retaining wall seaward of the coastal construction control line and to place a shell road immediately adjacent to, and landward of, the retaining wall from approximately 100 feet south of Granada Avenue to approximately 50 feet south of Ocala Street on Venice's right-of-way of The Esplanade in Venice, Florida. The Petitioners Roy B. and Patricia B. Olsen are residents of Venice, Florida and reside at 304 Ocala Street. They own Lot 1, The Esplanade, which is immediately east and south of the southern terminus of the proposed retaining wall. Petitioner, Nina Howard is a resident of Venice, Florida and resides at 721 Ocala Street. Ms. Howard's residence is located to the south and across Ocala Street from the site of the proposed retaining wall. Intervenors, Roger and Irene Fraley are residents of Venice, Florida and reside at 221 The Esplanade South, which is immediately landward (east) of the site of the proposed retaining wall. Intervenors, Howard and Evelyn Barbig are residents of Milton, Florida but are owners of lot 4, The Esplanade South, located north of the Fraleys' property and immediately landward (east) of the site of the proposed retaining wall. The Petitioners oppose the granting of the CCCL permit. The Petitioners have expressed their opposition to the granting of the CCCL permit based upon their belief that the construction of the proposed retaining wall will have adverse impacts to the beach dune areas and to the adjacent properties. Specifically, it is their belief that the construction of the proposed retaining wall will accelerate the erosion of the beach dune areas and the adjacent properties. The Petitioners disagree with the conclusion reached by the Department in the final order that, "the activities indicated in the project description are of such a nature that they will result in no significant adverse impacts to the beach dune areas or to the adjacent properties." Intervenors, Fraley and Barbig are in favor of the issuance of the CCCL permit because it will prevent seasonal erosion which results in exposure of, and damage to, the sewer line along The Esplanade, and will provide public access over the shell road within the right-of-way of The Esplanade for those properties between Granada Avenue and Ocala Street that do not have public access from time to time due to the seasonal erosion. On April 17, 1991 the Department advised Venice that the CCCL permit application was determined to be incomplete, and advised Venice of those things needed to make the application complete. Subsequent to this letter, the Department determined that, although the application was not an emergency, it did deserve "fast tracking", and assisted Venice in bringing the application to a "complete" status. On April 25, 1991 the Department issued a Final Order administratively approving CCCL permit number ST-820 for the construction of a wooden retaining wall and shell access road as described in Venice's application. On April 26, 1991 the Department issued a Notice to Proceed Withheld to Venice, which advised Venice not commence construction of the project authorized by the permit until certain permit conditions had been met. This notice also gave notice to those whose substantial interests would be affected by the proposed project of their right to a formal hearing. An engineering assessment was made for this project, and although not a formal written engineering assessment, the engineering assessment did consider all conditions of adverse impacts. In making this assessment, the Department considered and reviewed available aerial photographs, photographs taken of the area of the proposed project site and erosion tables concerning the area. A formal written engineering assessment is not required by statute, rule or Department policy. This assessment also indicated that there are severe impacts due to winter storm events which contribute to the seasonal profile changes. The seasonal beach profile is depicted by the build up of the beach (sand) during the summer months and the removal (erosion) of beach (sand) during the winter months. However, due to an inlet, a major rock-out cropping and the rock grain structures located in the vicinity of the proposed site, there is a limitation on the natural movement of sand along the coast which prevents natural renourishment and results in severe erosion in the area of the proposed site during the winter months. This erosion during the winter months causes the sewer pipes along The Esplanade to be exposed and sometimes broken, and prevents access over the right-of-way of The Esplanade to certain properties located along The Esplanade between Granada Avenue and Ocala Street. The wooden retaining wall is designed to retain sand just landward of the wall and allow a shell access road to be placed on the right-of-way of The Esplanade. The wooden retaining wall will be constructed as follows: (a) 8" x 20' wooden piling will be placed on 6' center and driven to an approximate depth of -14.00 (NGVD); (b) 2" x 8" planking will be attached to the landward side of the piling from the top of the piling (+7.0 NGVD) to a depth of appropriate 7 feet (0.00 NGVD); (c) with a filter "x" cloth covering the planking on the landward side. At the time of the application, the existing beach was +5.0 (NGVD) which would leave approximately 2 feet of the retaining wall exposed on the seaward side. The purpose of the retaining wall is to protect the shoreline in the immediate vicinity of The Esplanade and thereby protect the sewer line and access road which are landward of the seaward (west) right-of-way line of The Esplanade. The proposed wooden retaining wall is to be located as far landward as possible, and will be the minimum size and configuration to protect the sewer line and the shell access road along The Esplanade right-of-way. The retaining wall is designed to be temporary in nature in that its design will not allow it to survive under a major storm event. In that regard, the retaining wall comes within the definition of a minor structure as defined by rule and does not require a formal written review. The access road will enable Venice to establish a public road on public right-of-way for ordinary and emergency utilization by the residents and Venice. Previous attempts by Venice to protect the sewer line by "shoring up" the area with sand bags have proven unsuccessful. A wooden retaining such as the one proposed would be the next logical step to prevent the exposure and damage to the sewer line and still be consistent with the coastal armoring policy adopted by the Governor and Cabinet in December 1990. Dr. Al Deveraux, Bureau Chief, Control Engineering, personally viewed the site prior to approval of the project and waived compliances with certain provisions of the application. There is sufficient competent substantial evidence to establish that: erosion is occurring in the area of the proposed site without the presence of the proposed retaining wall; without the proposed retaining wall, Venice will be unable to prevent that erosion, particularly during the winter storm events, which will result in exposure and damage to the sewer line and lack of public access to certain properties located along The Esplanade between Granada Avenue and Ocala Street; and upon construction of the retaining wall, the beach dune area and the adjacent properties to the south of the proposed project will experience some increase in erosion above that presently occurring, but it will be minimal and will not have a significant impact on the area. The application submitted by Venice was processed and approved in accordance with statutes, rules and Department policy. There is sufficient competent substantial evidence to establish that granting CCCL permit number ST-820 and constructing the retaining wall and access road as set forth in Venice's application would be in the best public interest. The Petitioners' expert witness on coastal engineering concluded that there would be substantial erosion of the beach dune area and adjacent properties south of the proposed retaining wall as a result of constructing the retaining wall. However, this conclusion was not supported by competent substantial evidence. Special permit condition 1 requires Venice to provide the Department with a Sea Turtle Protection Plan approved by the Florida Marine Research Institute in St. Petersburg, Florida. This special condition takes into account the Department's policy for the protection of sea turtles as described in Rule 16B-33.005(9), Florida Administrative Code. The project is consistent with the thirty-year erosion projection and is not located seaward of that line.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is, accordingly recommended that the Department enter a Final Order issuing CCCL permit number ST-820 to the City of Venice, Florida subject to all the special conditions contained therein, and adding one other special condition requiring the City of Venice, Florida to monitor the beach dune system and adjacent properties south of the project site on a semi-annual basis for a period deemed necessary by the Department, and report any accelerated erosion that might occur in that area to the Department for review and action. RECOMMENDED this 27th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1991.
