Findings Of Fact After DNR issued a cease and desist order to Petitioner, forbidding further construction on his Walton County lot seaward of the coastal construction control line, he applied for an after-the-fact permit authorizing work to go forward on a three-story ten-unit condominium, which would occupy some 95 percent of the width of his lot, and extend 34 feet seaward of the coastal construction control line. Petitioner's Exhibit No. 1. DNR staff stated the following, in recommending denial: There presently exists over 160 feet of property located landward of the control line in which the proposed structure could be sited. The staff is concerned that the proposed encroachment is not justified, nor considered necessary for reasonable use of the property. In addition, staff is concerned about the potential cumulative effects of siting major structures seaward of the control line along this section of the coast, which contains a number of undeveloped lots, as well as redevelopable lots. The cumulative impact of such construction will result in significant disturbance and damage to well-established, mature vegetation and eventual destabilization of the coastal barrier dune ridge. Also, the proposed encroachment and shore-parallel site coverage will have an adverse impact on the natural recovery processes of the beach/dune system following the impact of a major storm event. The proposed building is not designed in accordance with the standards set forth in Subsections 16B-33.05(6) and 16B-33.07(1) and (2), Florida Administrative Code. File number WL-183 ATF has been assigned. . . . RECOMMENDED DENIAL, ASSESMENT OF A CIVIL FINE OF FIVE THOUSAND DOLLARS ($5,000) AND REQUIRING REMOVAL OF THE EXISTING UNAUTHORIZED CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE. Petitioner's Exhibit No. 1. The "reference [to] the extensive site coverage was not only the shore parallel site coverage, but also included the proposed encroachment seaward of the control line." (T. 18). DNR staff opposes construction on Mr. Hill's lot of a habitable structure seaward of the control line. (T. 19, Petitioner's Exhibit No. 2, pp. 12 and 13). Petitioner Hill timely instituted formal proceedings on his application, WL-183 ATF, and Case No. 85-2455 is still pending. Shore Parallel Site Coverage Since October of 1983, in processing coastal construction permit applications, DNR has taken into account "shore parallel site coverage," i.e., DNR staff have considered the relationship between lot width and the width of any structure proposed to be built fronting the water, seaward of a coastal construction control line. A succession of waterfront buildings stretching the entire width of their respective lots walls off the foreshore from more landward dunes. "[I]f you cover an extensive portion of the beach in the shore parallel direction, you tend to she[a]r off the upland area from the beach area and limit and inhibit the natural recovery processes of the dune system." (T. 15) With respect to Petitioner's proposed project and any other of this size and shape planned this far down on a similarly platted, developed and configured beach, DNR engineers put the maximum acceptable width of the structure at 50 to 60 percent of the lot's gulf frontage. Petitioner's Exhibit No. 2, p. 23; T. 20, 22, 32, 35. DNR has no written policy limiting the width of structures built seaward of the coastal construction control line. Although DNR endeavors to treat similar sites similarly, sites vary significantly and different widths may be allowed on similar sites when structures with different depths are planned. Petitioner's Exhibit No. 3, pp. 9-13. In its post-hearing memorandum in support of Petitioner's rule challenge to DNR's non-rule policy regarding side setbacks, Petitioner quotes the following: Q: Would you generally recommend this 50 to 60 percent shore-parallel site coverage for other types of similarily situated lots, either on the same beach or on other beaches in Florida? A: The reference 50 to 60 percent is something we would feel comfortable with in certain areas of the beach that have similar characteristics and existing--similar situations regarding existing development, potential for redevelopment, stability of the dune area, and things of that nature. It certainly wouldn't apply--those figures wouldn't apply to all areas of the Florida coastline. [Deposition of Brett Moore, September 10, 1985, pp. 16-17.] Q: But for, say, a similarly situated beach, maybe you would try to get people to move toward that time of width without specifically telling them that that's the width of coverage that you desire. A: For the two areas I mentioned, I feel that something in the vicinity of 60 percent site coverage would be acceptable to the staff, and that's what I would tell people if someone proposed a project in that area today. [Deposition of Brett Moore, p. 27.] A: Given that amount of encroachment on the dune, I feel that a reasonably acceptable shore-parallel coverage, given that shore- normal coverage, that would not have a significant adverse impact, would probably be between zero percent coverage and thirty percent coverage. In terms of what we would recommend, generally, in what kind of dune encroachment of a major structure, approximately a thirty-foot width, or about fifty percent coverage would probably be acceptable in terms of the impact to the dune and the recovery potential following a major storm event. Q: Okay. Did you--so fifty percent would probably be okay by your lights; is that a fair characterization of that statement you just made? A: Yeah, I could recommend a fifty percent coverage there, . . . In terms of what I would recommend for a site like that with that kind of encroachment with a major structure on the dune, I would recommend approximately fifty percent coverage. Q: What about for a similar type of beach, not one down in Charlotte County or any place like that, but let's just say a similar type of beach somewhere in the panhandle, same relative dimensions, topography and the like? A: So for the same---for the same site, I would recommend the same. [Deposition of Ralph Clark, pp. 10-11.] At 2-3. Neither this evidence nor any other adduced at hearing proved the existence of an agency statement of general, statewide application purporting in and of itself to have the direct and consistent effect of law. It is DNR's policy to treat similarly situated landowners similarly and to consider cumulative impact. The parties proposed orders contain proposed findings of fact which are addressed by number in an appendix to this final order.
The Issue Whether the permit application of Clifford S. and Maria Ray (the "Rays") meets the statutory and rule requirements for the Department of Environmental Protection ("DEP" or the "Department") to issue to the Rays a permit to construct a multi- family dwelling and related structures seaward of the coastal construction control line ("CCCL") on their property in Brevard County?
Findings Of Fact Legislative Intent re: Beaches and Coastal Barrier Dunes The Legislature has declared that the beaches and the coastal barrier dunes in this state, subject by their nature to severe fluctuations, represent one of the most valuable resources of Florida. See § 161.053(1)(a), Fla. Stat. The Legislature has further declared that it is in the public interest to preserve and protect the beaches and dunes from imprudent construction because it can "jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access." Id. The Legislature has therefore directed the Department of Environmental Protection "on a county basis along the sand beaches of the state fronting the Atlantic Ocean [and other salt water bodies]" to "establish coastal construction control lines." Id. The "Coastal Construction Control Line" A line of jurisdiction, rather than a line of prohibition, the Coastal Construction Control Line (the "CCCL or the "Control Line") is defined in Chapter 62B-331 of the Florida Administrative Code. The Control Line is: the line established pursuant to provisions of Section 161.053, F.S., and recorded in the official records of the county, which defines that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions. Fla. Admin. Code. R. 62B-33.002(12). The Department's Office of Beaches and Coastal Systems has regulatory authority to permit or deny construction seaward of the Control Line pursuant to statutory and rule criteria. This proceeding concerns the exercise of that authority in the form of issuance of a permit for activity seaward of the Control Line in Brevard County. Brevard County's Control Line The Control Line in Brevard County was established by the Department of Natural Resources, an agency of the state and a predecessor of DEP, in 1981 (the "1981 CCCL"). A second Control Line in Brevard County was established in 1986, again by the Department of Natural Resources. It is approximately 150 feet landward of the 1981 CCCL. It will be referred to in this order as "the CCCL" or "the Control Line." The line established in 1981 will be referred to as the "1981 CCCL," to distinguish it from the Control Line established in 1986, the Coastal Construction Control Line applicable to this proceeding. The Parties Mrs. Pope Petitioner, Carole C. Pope, owns with her husband James M. Pope, oceanfront property located at Wilson Avenue, Brevard County, Florida, where the Popes reside part time. The Popes' property has a Cocoa Beach mailing address, but is not within the city limits of Cocoa Beach. Littoral to the Atlantic Ocean, the Popes' property was identified in the pre-hearing stipulation in the Rule-related Cases (discussed in this Order's Preliminary Statement) as "Lot 11, Block 101, Avon by the Sea as described in Plat Book 3, page 7 [presumably the Official Records of Brevard County] and east to Ocean, except the west 13 feet of Lot 11." See Final Order, Pope v. Department of Environmental Protection et al., Case No. 03-3860RX, paragraph 7, page 9. The Popes have two duplex units on their property. Built in the 1950's, they consist of concrete foundations, block walls, and 10-foot-high flat roofs. Mrs. Pope and her husband have retained the native, salt-tolerant vegetation that surrounds the duplexes. Protective of the property because it serves to enhance and stabilize the primary/frontal dune, it also adds to Mrs. Pope's enjoyment and use of her property. She enjoys the native flora, an integral part of the habitat of native fauna (gopher tortoises and indigo snakes, for example) that she enjoys watching. She particularly enjoys feeding and interacting with the sociable scrub jay. The Department and its Office of Beaches and Coastal Systems The Department is responsible for the administration of Parts I and II of Chapter 161, Florida Statutes, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control lines; activities seaward of the coastal construction control line; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties." § 161.053 (21), Fla. Stat. Pursuant to its rule-making authority in Section 161.053 (together with other specific authority), Florida Statutes, the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)." The Office is in the Department. Fla. Admin. Code R. 62B-33.002(11). Permits for construction or other activities seaward of the construction control line, such as the permit in this case, are issued pursuant to Section 161.053, Florida Statutes, by the Program Administrator of the Bureau of Beaches and Wetland Resources on behalf of the Department. See Respondents 1, Vol. 2, Tab 22. The Department has not delegated Chapter 161 permitting authority to Brevard County. The Rays Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No. BE-1083, preliminarily issued by the Department in its final order of September 19, 2003. The property consists of four 50-foot-wide lots, Lots 12, 13, 14 and 15 in Avon by the Sea. Lot 12 is immediately adjacent to Mrs. Pope's property. Some of the native vegetation on the property has been disturbed by the planting of sod and installation of an irrigation system seaward of the Brevard County coastal setback line and the Control Line. The activity is the subject of administrative enforcement actions by the County and DEP. Although government claims of violations had not been resolved finally as of the date of hearing, the Rays have not resisted the claims. The Permit was issued to the Rays under the authority of Section 161.053, Florida Statutes. It authorizes activities on the Ray property seaward of the CCCL. This activity includes the construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry wall and an exfiltration trench, as described in more detail in the section of the Permit entitled "PROJECT DESCRIPTION." Respondents Ex. 1, Vol. 2, Tab 22, Permit No. BE- 1083, p. 2-3. The Department was not aware of the claims of violations made against the Rays referred-to above at the time that Mr. Tammisetti, the engineer assigned to review the permit file initially, recommended that the permit be issued. Had Mr. Tammisetti been aware of the claims he still would have recommended issuance of the permit. Coastal Systems and Fixed Coastal Cells The term "Coastal System" is defined by the Department in its rules: "Coastal System" is the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and structures. Fla. Admin. Code R. 62B-33.002(13). Within the coastal system are "fixed coastal cells," also defined by Department rule: "Fixed Coastal Cell" is a geomorphological component of the coastal system which is closely linked internally by active physical processes and is bounded by physical features which exercise a major control on refraction patterns or which compartmentalize or severely limit longshore sediment such as headlands or inlets. Fla. Admin. Code R. 62B-33.002(24). Within and adjacent to a fixed coastal cell of Florida's coastal system lie sea, shore, beach, dune system, vegetation, uplands and structures with which this proceeding is concerned. The Beach and Dune System within the Fixed Coastal Cell The Ray property and the Pope property are located in a fixed coastal cell that extends from Canaveral Inlet (north of R014, one of a series of coastal monuments installed by the state) southward to Monument R050. The community in which the property is situated is a "Coastal Uplands: Beach Dune" community characterized by a beach and dune system. There is one primary/frontal dune with a height at the top of the bank of about 13.4 feet NGVD seaward of the proposed project. The portion of property on which the project is sited is between 7.3 and 10.7 feet NGVD. The most recent DEP design wave height elevation for R015 is 14.2 feet NGVD, higher than the existing dune elevation at the Ray property. Much of the Ray property behind the dune is lower in elevation than the elevation of contiguous properties, the likely result of persistent cutting of native vegetation that acts to intercept wind-blown sand as it moves along the shoreline. Beach and Dune Data in DEP File BE-1083 In the application review process, Mr. Tammisetti submitted a memorandum dated May 24, 2001, to Mr. McNeal. The memorandum appears to have been a form with blanks into which information was inserted or handwritten close to the appropriate blank. For example, under Section I., of the form "PROPOSED PROJECT" is "A. Project Location:", followed by a description with blanks left for number of feet, direction (north, south, east, west) reference monument number, county and project address. Handwriting close to the blanks leads one to understand or gather that it intends to communicate the following statements: The location of this project is approximately 100 feet N to 103 feet S of the Department of Environmental Protection's Reference Monument R-15, in Brevard County. Project Address: Harding Ave, Cape Canaveral. This is within the local jurisdiction of Brevard County. Respondents 1, Vol. 2, Tab 13. The form also contains Section II., "CHARACTERIZATION OF BEACH/DUNE SYSTEM". The section calls for three categories of characterization: A., a general description; B., beach topography in terms of shoreline alignment, berm width in feet, berm elevation in feet (NGVD), direction of net littoral transport, volume of net littoral transport in cubic yards per year, and general conditions; and C., Primary Dune/Bluff Topography with dune width in feet. None of the information called for by this section has been filled in on the form. At hearing, Mr. Tammisetti testified2 that berm width was 220 feet and the berm elevation ranged from 3 to 10 feet NGVD. He testified that the direction of littoral transport was north to south but he did not know the volume of net littoral transport. He stated that the "general site condition" was an eroding shoreline. He estimated the dune width at between 30 to 40 feet. These facts and figures exist under an overarching consideration. The beach near R015 that fronts the Pope and Ray property is critically eroding.3 Vegetation on the Ray Property There is a sea grape cluster and numerous palm trees on the Ray property. The seaward most continuous line of native salt-resistant vegetation or the "vegetation line" is near the line at the toe of the slope of the dune bank depicted on the topographic survey drawing submitted as part of the application. Nanette Church, at the time an employee of Brevard County, visited the site on July 1, 2003. She documented the presence of fresh sod and a new irrigation system installed seaward of the County's coastal setback line, a line parallel to and 25-feet landward of the 1981 CCCL. Two days later, DEP Inspector Gene Verano conducted a site inspection and documented the placement of sod and the installation of an extensive irrigation system. On July 31, 2003, the Department under the signature of Jim Martinello, an Environmental Manager in the Bureau of Beaches and Wetland Resources, issued a warning letter to Mr. Ray with regard to "POSSIBLE UNAUTHORIZED ACTIVITIES SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE." The letter reads, in part, Pope 3. [I]t appears that you have again been engaged in unauthorized activities on your property located approximately 100 feet north to 100 feet south of the Department of Environmental Protection's reference monument R-15, in Cocoa Beach, in Brevard County, Florida. The possible violation consists of the destruction/removal of native vegetation and placement of sod and an irrigation system seaward of the coastal construction control line without benefit of a permit from the [department.] The sod seaward of the CCCL has a negative effect on the stability of the dune system. A weakened dune system allows for storm surge and overwash to breach the dune and cause washout on the landward side of the dunes. Brevard County has not yet issued a land clearing or landscape permit to the Rays. A "Brevard County Land Development Site-Plan Approval" with an approval date of December 30, 2003, warned, "[i]t is the responsibility of the Owner/Engineer of Record to contact Office Natural Resources for a Land Clearing/Landscaping Permit." Respondents' 1, Vol. 1, Tab 12. The Rays are not contesting County or DEP enforcement actions relative to the land clearing, sod placement, and irrigation system installation. Project Description The project proposed by the Rays is to be located on their property in the unincorporated area of Brevard County known as "Avon-by-the-Sea," in the vicinity of Department monument R-015. The project is known by Brevard County as the Ray Condos and also as the Michelina Condominium. The location of the multi-family dwelling relative to the Control Line is "[a] maximum of 105.56 feet seaward." Id. Its exterior dimensions are "209.67 feet in the shore normal direction by 84 feet in the shore-parallel direction." Id. The type of foundation is "Pile." Id. There is no mention in the Permit of the height of the building. The swimming pool is described in the Permit in detail with regard to its dimensions and location (a maximum of 101.49 feet seaward of the control line), the type of construction and its maximum depth: six feet. Excavation/Fill for the project is described in terms of volume of excavation, its location, volume of fill as replacement, and location of fill. The Excavation/Fill description is subject to Special Permit Condition 6. Among other provisions of the condition, the fill is to be "from a source landward of the control line and shall consist of sand which is similar to that already on the site in both grain size and coloration." Id., p. 4. Other permitted structures and activities are listed and described in the Permit with reference to special permit conditions: A wooden beach/dune walkway structure of dimensions 174 feet shore-normal by 4 feet shore-parallel is to be located seaward of the control line. See Special Condition 7. A 4-foot to 14-foot swimming pool deck attached to the periphery of the swimming pool is to be located a maximum of 105.96 [feet] seaward of the control line. See Special Permit Condition 2.1. Paver-block parking area on the south side of the proposed dwelling. Masonry walls along the north and south property lines to extend a maximum of 105 feet seaward of the control line. See Special Permit Condition 2.2. An exfiltration system trench on the south side of the proposed dwelling. Among nine special conditions in the Permit are that no work can be conducted until a DEP "notice to proceed" has been received by the Rays. Another is that prior to the issuance of such a notice "two copies of detailed final site and grading plans and specifications" shall be submitted including two sets of landscape drawings. Id., p. 3, Special Permit Condition 2. See id., 2.3. The landscape plan must be submitted to Brevard County for approval under the Permit's special conditions. Given Brevard County's requirement that the Rays secure a Land Clearing/Landscaping Permit, there will be an ongoing process that poses the potential to ensure that the Rays' project will be designed to minimize the impact on native vegetation. The process also may require a restoration plan, as well, for the impact to native vegetation caused by the sod and the irrigation system. The Rays have submitted such a plan to the County. Relationship of the Proposed Project to the Pope Property The proposed multi-family dwelling is sited 10 feet south of the northern property line (the line that serves as the southern boundary of the Pope property). Ten feet is the minimum setback from adjacent property allowed by the county. The duplexes on the Pope property are situated in a range from 3.5 to 4.5 feet from the property line (the border with the Ray property.) The project, therefore, is proposed to be as close as 13.5 feet of the Pope duplexes. If built, running the length of the duplexes, it would create a relatively narrow space between the proposed structure and the Popes' duplexes that ranges from 13.5 feet to 14.5 in width. The Application The Rays submitted their CCCL permit application to the Department through their agent, Joyce Gumpher. On January 24, 2003, Ms. Gumpher executed a certification "that all information submitted with this application is true and complete to the best of [her] knowledge." Respondents Ex. 6, APPLICATION FOR A PERMIT FOR CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE OR FIFTY-FOOT SETBACK. The application was received by DEP on January 27, 2003. Additional information was requested by the Department. On April 21, 2003, the Department deemed the application complete. During the application process, several plan sheets were revised. Revised plan sheets were submitted after the application was deemed complete (see Respondents' Ex. 6, July 29, 2003 plans and September 5, 2003 plans) and once prior to DEP's determination of its completeness. (see id., April 7, 2003 plans). Review of the Application On August 26, 2003, Mr. Tammisetti submitted a memorandum to Mr. McNeal that recommended approval of the application with special permit conditions. The memorandum, similar in form to the memorandum submitted on May 24, 2001, except for the lack of Part II., is entitled "Description of Beach and Dune System Fronting the Subject Property and an Analysis of Impacts to be Expected From the Proposed Construction." Respondents 1, Vol. 2, Tab 20. It describes the proposed project but, lacking Part II., it neither characterizes nor describes the beach/dune system. Nor does it analyze the impacts of the proposed project other than to provide the "final comment" that "[t]he proposed project is landward of line of construction and 30-year erosion project. Impactive shore- parallel coverage is approximately 72%." Id., p. 3. Under its rules, after reviewing all information required, the Department is mandated to: Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effect of the construction on the coastal system and marine turtles. * * * Require siting and design criteria that minimize adverse impacts and mitigation of adverse or other impacts. Fla. Admin. Code R. 62B-33.005(3). As found earlier, the file in BE-1083 does not contain any documentation that the Department conducted the impact assessments required by the rule. Nonetheless, the Department based its evaluation on the portion of the fixed coastal cell from just north of R013 to approximately 400 feet south of R017 depicted on Respondents' 7. Respondents' 7 Respondents' 7 is an aerial photograph of developed uplands and off shore waters of the Atlantic Ocean in between which is the shore line and a stretch of beach in Brevard County. The sandy beach in the photo runs from north to south from Monument R013 to approximately 400 feet south of Monument R017, five monuments in a series set by the state along the Brevard County coast. The photograph is data the Department reviewed to determine if existing structures established a "reasonably continuous and uniform construction line closer to the mean high water line than [the coastal construction control Line]." § 161.053(5)(b), Fla. Stat. (This "reasonably continuous and uniform construction line" will be referred to as the "Construction Line" in this order.) The Pope property and the Ray property both straddle the Construction Line. The photograph shows four structures (the "Four Structures") that were determined by DEP to establish the Construction Line. Two are to the north of the Ray property; two are to the south. Of the two structures to the north, the closest is between 400 and 450 feet north of the northern boundary of the Ray property. It sits between Monument R015 and R014. The other structure to the north used to establish the Construction Line lies between Monument R014 and R013. Its southernmost corner is approximately 1200 feet to the north of the northern boundary of the Ray property. The roof of the closest of the Four Structures to the south, lying between Monument R015 and R016, viewed from the air above is rectangular indicating the structure to have a rectangular footprint. Positioned at an angle to the coast, its southeastern corner is along the 1981 CCCL. That corner is approximately 400 feet south of the southern boundary of the Ray property. The second structure to the south sits between R016 and R017. Its northernmost corner is roughly 850 feet south of the southern boundary of the Ray property. The Application Rule Florida Administrative Code Rule 62B-33.008(4), entitled "Permit Application Requirements and Procedures" (the "Application Rule"), requires that the Rays' application contain certain specific information, including that identified in subsection (f): Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of the application. The rule further calls for the topographic survey drawing to include specific information such as "[t]he location of any existing vegetation line on the subject property." Fla. Admin. Code R. 62B-33.008(4)(f)9. The topographic survey drawing submitted as part of the application in January of 2003 reveals a survey date of "7/17/02." Respondent's Ex. 1, Sketch of Boundary and Topographic Survey, Lots 12-15, Block 101, Avon by the Sea, Brevard County, Florida. Other than the date of the survey, the evidence at hearing did not reveal when the fieldwork in support of the survey was conducted.4 In all likelihood the fieldwork was conducted close to July 17, 2002, but obviously prior to July 17, 2002. Whether the date of the application is considered to be the date of Ms. Gumpher's certification (January 24, 2003), or the date of its receipt by DEP (January 27, 2003), it does not depict "field survey work performed not more than six months prior to the date of the application." January 24, 2003, is six months and one week after July 17, 2002. January 27, 2003, is six months and 10 days after the date of the survey. The Vegetation Line The topographic survey drawing submitted as part of the application did not meet precisely the requirements of the Application Rule in several other ways. For one, it did not label the location of "any existing vegetation line on the subject property." At hearing, the Rays submitted a revised copy of the topographic survey drawing (still dated "7/17/02"). The revision labels a line indicated on the originally submitted topographic survey drawing as "TOE OF SLOPE" (within a few feet of the top of the dune bank) as "TOE OF SLOPE AND VEGETATION LINE." Thus, it is apparent that the originally submitted topographic survey drawing depicted the vegetation line; it merely failed in its labeling of the vegetation line. The Department, once it became aware of the omission of a reference to a vegetation line in the original submission, waived the requirement for one. At hearing, Mr. McNeal testified that the waiver was authorized by subsection (7) of the Application Requirements and Procedures Rule: The Department recognizes that the requirements specified in paragraphs 62B- 33.008(4). . . (f) . . ., F.A.C. may not, due to the project circumstances, be applicable or necessary to ensure protection to the beach and dune system. In such cases, the applicant shall, as part of the application, identify those requirements and state the reason why they are inapplicable. The Department shall waive requirements that do not apply. Fla. Admin. Code R. 62B-33.008(7). There is no evidence of record that the Rays informed DEP of a position that the "location of the vegetation line" on the topographic survey drawing was a requirement inapplicable or unnecessary to ensure protection to the beach and dune system.5 Nonetheless, construing its waiver authority to be broader than authority limited to cases in which identification of inapplicable and unnecessary requirements had been made by those seeking DEP waivers, the Department waived the requirement. The waiver was based on knowledge gained from the experience of DEP employees. The employees (Mr. Tammisetti and Mr. McNeal) knew that the vegetation line would be close to the top of the dune bank line and the toe of slope line, both of which were located on the topographic survey drawing.6 Respondents' 2 supports the Department's waiver since it labels the vegetation line where the Department roughly expected it to be. Complete Dimensions and Distance Perpendicular The Application Rule further demands that the topographic survey drawing contain: 15. Accurate dimensions and locations of the foundation outlines of any structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of Section 161.053(5)(b) or 161.052(2)(b), F.S., and the distance perpendicular [the "Distance Perpendicular"] from the CCCL or 50-foot setback to the seaward corners of the foundations of any major structures . . . . Fla. Admin. Code R. 62B-33.008(4)(f). The application contained the dimensions and locations of the two (2) duplexes located on the Pope property, that is, the adjacent area to the north of the Ray property. With regard to the adjacent area to the south of the Ray property, the application contained the seaward dimensions and locations of the major structure that makes up the Discovery Beach Resort structure. The topographic survey drawing did not contain the dimensions of the complete footprint of the Discovery Beach Resort. Nor did it contain the distance perpendicular from the CCCL or 50-foot setback to the seaward corners of the foundations of all major structures depicted. Mr. McNeal noticed that required elements were missing from the application. When he made the permitting decision, he waived them pursuant to a delegation of authority from the Office of Beaches and Coastal Systems. Delegations of Authority Office of Beaches and Coastal Systems The Director of the Office of Beaches and Coastal Systems has delegated certain authority to subordinates in the Office of Beaches and Coastal Systems with respect to the CCCL permitting program. The delegations, as reflected in a document entitled "Delegations of Authority, OFFICE OF BEACHES AND COASTAL SYSTEMS" (Pope Ex. 1), is to "the Director of Office of Beaches and Coastal Systems, or his/her designee." Id., 3.a. As the administrator of the CCCL program within the Bureau of Beaches and Wetlands Resources, Mr. McNeal has been delegated authority under Delegation "OBCS-9" (id., p. 14 of 24), to "[t]ake final agency action on permit applications . . . pursuant to Sections . . . 161.053 . . ., Florida Statutes, and Rule 62B-33, F.A.C., [subject to exceptions immaterial to this proceeding.]" Id. The authority so delegated is not without limitation. Among limitations enumerated and express in the Delegations of Authority document is that "[t]the exercise of any delegated authority shall conform with all statutes and rules applicable to the DEP." Id., 3.a. Waivers Pursuant to Delegated Authority Pursuant to the authority over final agency action on CCCL permit applications, Mr. McNeal, as the head of the CCCL Program in the Office of Beaches and Shores, waived the depiction of the location of the vegetation line on the topographic survey drawing, the full dimensions of the Discovery Resort in the adjacent area to the south of the Ray property and the notation of the Distances Perpendicular. He did so because the information contained on the topographic survey drawing was sufficient, in his view, to allow the Department to perform the calculations and analyses as part of the application process that would be served by a review of the topographic survey drawing. An example has been alluded to in this order. Based on years of collective experience, Mr. McNeal and Mr. Tammisetti concluded it was reasonable to assume the vegetation line would be very near the toe of the slope line in relation to the dune bank. Their assumptions were proved correct at hearing. The dimensions and locations of the major structures located immediately north and south of the proposed project (the Pope duplexes and the Discovery Resort structure) and the Distances Perpendicular were required to be included on the topographic survey drawing, but they were not intended by the Rays to establish a Construction Line. Establishment of any such line is governed by Section 161.053(5)(b), Florida Statutes: If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing [the CCCL], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department, if such structure is also approved by the department [and other conditions are met]. A Construction Line The Rays contend in their application and DEP agrees that the Four Structures establish a Construction Line. Once such a line is established provided the structures are not duly affected by erosion, the Department is conferred with the discretion to permit a proposed structure along the line seaward of the CCCL under certain circumstances. See § 161.053(5)(b), Fla. Stat. Among those circumstances, the permit "shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided [by statute.]" § 161.053(5)(b), Fla. Stat. Furthermore, by rule of the Department, written evidence from local government must be provided that the location of the proposed structure along a Construction Line seaward of the CCCL is consistent with the Local Comprehensive Plan. See Fla. Admin. Code R. 62b-33. Written evidence that Brevard County regards the Rays' proposed site to be consistent with Local Comprehensive Plan and not contrary to local setback requirements or zoning codes was provided by Brevard County to the Department. Establishment of a Construction Line Whether a Construction Line can be established for a proposed project is unique to the project and its coastal location. To establish such a line, the Office of Beaches and Coastal Systems may rely exclusively on information provided by the applicant for a permit to construct along such a line. The Office may also refer to its own database of aerial photographs (as it did in this case) and other data with regard to the State's coastal systems. The Construction Line running across the Ray property accepted by DEP is nearly identical to the 1981 CCCL. In contesting the establishment of the Construction Line, Mrs. Pope makes a number of points, several of which are worthy of discussion. For one, in 1993, the Department considered an administrative challenge brought by Mrs. Pope to the CCCL permit for the construction of the Days Inn Tower (now Best Western) hotel (one of the structures used by the Rays to establish a Line of Continuous Construction). See, OR-1, Pope v. Department of Environmental Protection et al., Agency Final Order dated May 9, 1994, DOAH Case No. 93-4560 (the "1993 Pope Case.) The Pope duplex had been found to be three or four blocks north of the property for which the permit was sought. If her property had been found immediately adjacent to the Days Inn Tower property, Mrs. Pope would have been accorded standing to contest issuance of the permit to the Days Inn Tower applicant. The hearing officer had recommended that Mrs. Pope not be accorded standing under the rule because her duplex property was not "immediately adjacent" to the Days Inn Tower parcel. Since Mrs. Pope's parcel was separated by at least what has been identified in this proceeding as the Ray property and the property of the Discovery Resort, she did not qualify for standing under the DEP Rule. Nevertheless, Mrs. Pope was afforded the opportunity to acquire standing by proving that her substantial interests would be affected by issuance of the permit. The hearing officer concluded that her attempt in this regard failed.7 The Department accepted the hearing officer's recommendation that Mrs. Pope be determined to have no standing, in part because her property was not "immediately adjacent" to the Days Inn Tower property. Mrs. Pope also asserts that the Four Structures along the 1981 CCCL do not establish a Construction Line on the basis of the testimony of her witness, Dr. Harris. Dr. Harris opined that the structures to be used to establish the Line of Continuous Construction, if one exists, are not the four used by DEP that are in the area of the Ray property but the structures on the two pieces of property closer to the Ray property, that is, immediately adjacent: the Pope property to the north and the Discovery Resort property to the south. The easternmost point of the structure on the Pope property is approximately 50 feet landward of the 1981 CCCL and extends approximately 100 feet seaward of the Control Line. The structure on the Discovery Resort property to the south is along the Control Line. See Respondents' 7. The line that Dr. Harris would establish does not run parallel to the shore line, the 30-year erosion line, the 1981 CCCL or the Control Line. It would run at an angle of approximately 15 degrees from the easternmost point of the Pope duplexes (the "point of beginning") about 425 feet to the easternmost point of the Discovery Resort structure. The point on the Discovery Resort structure (at the end of the line) is approximately 100 feet seaward of the point of beginning. If these structures are to be considered in the determination of whether a Construction Line exists as Mrs. Pope argues, then continuing the line to include the Four Structures would yield broken lines rather than a reasonably "uniform" and "continuous" line. The Department did not consider the structures in the property immediately adjacent to the Ray property to break the line it determined is established by the Four Structures. It ignored other structures as well between the northernmost and the southernmost of the four structures. Mrs. Pope, therefore, describes the Construction Line established by the Department as "imaginary" and without a factual basis. This point is one of opinion. The Construction Line is neither imaginary nor without a factual basis. It has a factual basis in precisely the data used by DEP: the aerial photograph that shows four major structures between Monuments R013 and R017, Respondents' 7, along the 1981 CCCL. The disregard for the Pope duplexes and the Discovery Resort structure as well as other structures in the areas north and south of the Ray property is a matter that falls within professional opinion and Department expertise. The establishment of the Construction Line is justified by the data DEP examined: Respondents' 7 (on which the Four Structures were identified and circled by Mr. Tammisetti at hearing.) The greater weight of the evidence is that DEP's determination of the establishment of the Construction Line should not be disturbed. It is, moreover, not surprising that such a line exists. One would expect that structures built after 1981 but before 1986 would be located along the 1981 CCCL and that structures that followed (such as the Discovery Resort structure) would be built along that Construction Line. Post-establishment of a Construction Line Establishment of a Construction Line does not entitle an applicant to a permit to build along that Construction Line. After a Construction Line is accepted by DEP as established, an applicant must satisfy three remaining sets of conditions expressed in Section 161.053(5)(b), Florida Statutes. Section 161.053(5)(b), Florida Statutes A discretionary exercise Once a Construction Line is established, an application for a permit to allow a proposed structure is subject to the discretion of the Department: "a proposed structure may, at the discretion of the department, be permitted along such line on the written authorization of the department, if such structure is also approved by the department." ii. Local Requirements The Department has no such discretion, however, if the construction or activity would "contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than . . . requirements [in chapter 161]." Id. To this list, the Department, by rule, has added consistency with state-approved Local Comprehensive Plans. See Fla. Admin. Code R. 62B- 33.008(4)(d). Before exercise of department discretion and inquiry into compliance with local requirements, there is a more fundamental condition that must be demonstrated by the applicant: the existing structures that establish the Construction Line must not have been unduly affected by erosion: If in the immediate contiguous or adjacent area a number of existing structures have established a [Construction Line], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line . . . [h]owever, the department shall not contravene [local requirements] . . . equal to, or more strict than, those requirements herein. § 161.053(5)(b), Fla. Stat. Unduly Affected by Erosion The parties differ in their view of the testimony and evidence introduced at hearing with regard to whether structures that establish the Construction Line "have not been unduly affected by erosion." Id. Neither DEP employees nor the Rays' witnesses visited the shoreline between R0-13 and R-017 to evaluate the four structures that establish the Construction Line and the effects of erosion, if any.8 Mrs. Pope asserts in her Proposed Recommended Order, "[n]o evidence or testimony was offered as to whether the structures considered by DEP were affected by erosion." Petitioners' Proposed Recommended Order, p. 24. In contrast, Respondents cite to the testimony of Mr. Boehning and Respondent's 7 with the assertion, "[t]he existing structures, which form the line of continuous construction, have not been unduly affected by erosion." Respondents' 7 supports the claim of Respondents. It reveals a distance perpendicular from the Construction Line to the dark, wet sand along the shore to be approximately 275 feet. This distance encompasses white sandy beach that is approximately 175 feet and a vegetated area that is approximately 100 feet. The finding that the structures that establish the Construction Line are not unduly affected by erosion does not mean that there are not erosion problems in the area. In fact, as found earlier in this order, the beach depicted on Respondents' 7 is "critically eroding." The stretch of beach depicted in the aerial photograph that is Respondents' 7 has undergone considerable fluctuation since 1963 through erosion and beach nourishment. From 1972 to 2002, for example, the location of the mean high water line at R-015, the monument closest to the Pope and Ray properties, has varied by 206 feet from a low in September of 1972 to a high of 369.3 feet in April of 2001. Dr. Harris wrote this in a report introduced into evidence: The beach profile data show that at R-15 the beach and dune are subject to erosion. From 1972 to 2002 the variation in the MHW shoreline position was 206 feet. Beach nourishment and inlet sand by-passing operations were performed between some of the time periods, and are largely responsible for the periodic beach and dune widening. Even with the beach nourishment project, dune erosion continues to be a problem, and although the recent beach nourishment project greatly widened the beach, the position of the dune remained the same. The FDEP design wave height elevation for a 100-year storm is 14.2 feet NGVD for R-15, which is higher than the existing dune elevation. This means that the upland properties would experience storm surge, flooding and wave action during a 100-year storm. Pope 16. Projects of beach nourishment (placement of sand through human activity) were performed in 1972, 1986 and 2001. The need for beach nourishment and re-nourishment reinforces the status of the beach near R-015 as "critically eroding" and underscores the importance of protecting as much of the dune system as possible. That the beach is critically eroding is not inconsistent with a finding that the structures that establish the Construction Line are not unduly affected by erosion. Whether or not due to the 1986 and 2001 nourishment projects, the evidence of record is that, despite the status of the beach as critically eroding, the structures that establish the Construction Line are not unduly affected by erosion. Not Contrary to Local Requirements On December 30, 2002, a site-plan approval was issued by Brevard County with regard to "RAY CONDOS aka MICHELINA CONDOMINIUM" with a site address of "420 Harding Avenue, Cocoa Beach, FL 32931." Respondents' 1, Vol. 1, Tab 12, second page. Signed by the designee of the Director, Permitting and Enforcement, the development order is entitled, "BREVARD COUNTY LAND DEVELOPMENT SITE-PLAN APPROVAL" and contains the following: The site plan to which this approval is attached has been reviewed by affected County divisions, departments and agencies and has been determined to comply in general with the Brevard County Code of Ordinances and Comprehensive Plan Elements. * * * It is the responsibility of the Owner/Engineer of Record to contact Office of Natural Resources for a Land Clearing/landscaping Permit Two (2) sets of As-Built drawings must be provided to Land Development prior to the Issuance of a C.O. Id. The development order concludes with a statement related to the vested right of the Rays to develop in accord with the site plan: If a Certificate of Occupancy has not been issued for the principal structure by Dec. 30, 2005 the three (3) year vesting period, beginning with the date of site development plan approval, expires and said site plan shall become Null and Void. Only those phases of the development that have an active and valid building permit may be completed after the three-(3) year time period. Id. The reference in the site-plan approval to the "Brevard County Code of Ordinances" does not include building codes. The reference covers local setback requirements and zoning codes. Mrs. Pope appealed the issuance of the site-plan approval to the Brevard County Board of County Commissioners (the "Board"). Her appeal was heard over three meetings of the Board on May 6, 2003, June 8, 2003, and August 12, 2003. At the conclusion of the August 12, 2003, proceedings on the appeal, the Board voted unanimously to accept the staff recommendation to deny the appeal. An unnumbered resolution of the Board "DENYING THE APPEAL OF JAMES AND CAROLE POPE . . . PERTAINING TO THE MICHELINA CONDOMINIUM SITE PLAN" was produced by Mrs. Pope at the hearing together with the following statement of a Deputy Clerk for the Board: This is to advise that the Office of the Clerk to the Board of County Commissioners does not have any correspondence indicating a copy of the Findings of Fact on Michelina Condominium was forwarded to Mr. or Mrs. Pope. Pope 7. The resolution is signed by the Chairperson of the Board. Immediately below the signature block there appears the following: "(As approved by the Board on August 12, 2003)." Pope 8. The document is not stamped received by the Clerk of the Board or the County Clerk's Office, nor is there other clear indicia that the order has been rendered through a filing with the Clerk's office. On its face, however, appears an undated attestation of a deputy clerk under a seal of Brevard County that appears to attest to the Chairperson's signature. As of the dates of the final hearing in this proceeding, Mrs. Pope had not sought judicial review of the decision of the Board. At hearing, on the strength of the signed resolution denying Mrs. Pope's appeal of the site-plan approval and the site-plan approval, itself, and the apparent finality of the approval, Mrs. Pope was ruled estopped from presenting evidence that the Permit contravened local setback or zoning requirements or was inconsistent with the Local Comprehensive Plan. The establishment of a Construction Line, that the structures establishing the line are not unduly affected by erosion, and the collateral estoppel of Mrs. Pope's claim that construction or activity seaward of the Control Line along the Construction Line is contrary to local requirements, clears the way for the exercise of Department discretion as to whether to issue the permit. Department Discretion The Department's exercise of discretion must, of course, take into consideration the beach and dune system within the fixed coastal cell in which Ray property and the Pope property are located. No other conclusion could be gathered from the statements of legislative intent and the statutory scheme. Lest there be any misunderstanding, the Department has codified its policy statement on such matters: (1) The beach and dune system is an integral part of the coastal system and represents one of the most valuable natural resources in Florida, providing protection to adjacent upland properties, recreational areas, and habitat for wildlife. A coastal construction control line (CCCL) is intended to define that portion of the beach and dune system which is subject to severe fluctuations caused by a 100-year storm surge, storm waves, or other forces such as wind, wave, or water level changes. These fluctuations are a necessary part of the natural functioning of the coastal system and are essential to post-storm recovery, long term stability, and the preservation of the beach and dune system. However, imprudent human activities can adversely interfere with these natural processes and alter the integrity and functioning of the beach and dune system. The control line and 50-foot setback call attention to the special hazards and impacts associated with the use of such property, but do not preclude all development or alteration of coastal property seaward of such line; Fla. Admin. Code R. 62B-33.005, Department Policy Statement on Permits. The exercise of this discretion is guided by criteria under rule. Among those criteria are those found in 62B- 33.005(4)(g): The construction will not cause a significant adverse impact to marine turtles, immediately adjacent properties, or the coastal system unless otherwise specifically authorized in this rule chapter. Chapter 62B-33, Florida Administrative Code, defines the term "Impacts" to include separate definitions for the terms "Adverse Impacts," "Significant Adverse Impacts," "Minor Impacts," and "Other Impacts": "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 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 system becomes unstable or suffers catastrophic failure; . . . * * * (d) "Other Impacts" are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access. Fla. Admin. Code R. 62B-33.002(30). Minimization of Impacts and No Significant Adverse Impacts The site selected on the Ray property for the proposed project poses impacts to Mrs. Pope's duplexes during a storm event such as a 100-year storm. Because of the shore- parallel dimension of the proposed structure (84 feet), storm- generated waves and storm surge would be concentrated into the relatively narrow gap between the proposed structure and the duplexes. The resulting hydrodynamic load would cause scouring of the foundations of the duplexes. The proposed project has "frangible" or "breakaway" ground level walls. They would pose the potential for generating waterborne missiles that, hydro-dynamically propelled, would damage the duplexes. The proposed project was designed in accordance with the American Society of Civil Engineers 7 Code ("ASCE-7") and most pertinently (since referenced in the Construction Line Statute), the Florida Building Code. But the Building Code does not take into consideration a proposed structure's design or proposed site on an adjacent property or the adjacent property's structures. The proposed project, moreover, is not designed and sited to mitigate aerodynamic loading on Mrs. Pope's duplexes. During high-wind conditions, there will be a number of wind effects on the duplexes caused by the proximity of the proposed project: gust loading, high turbulence shedding, and vortex shedding among others that can be reasonably expected to cause structural impacts to the duplexes such as suction loads on roofs and eaves, flying debris and window breakage. The proximity of the proposed structure to the Pope property will have a shading effect that will cause adverse impacts on the growth of native coastal vegetation on the Pope property. As a result, there will be a reduction in the interception of wind-driven sand by the vegetation that enables it to develop healthy, deep root systems that add to dune stability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: an impacts assessment be conducted as required by Florida Administrative Code Rule 33.005(3)(a); that the proposed project be re-sited to mitigate the impacts that its siting now poses to the Pope Property and the Popes' duplexes; that the proposed project be permitted to be constructed up to the Construction Line, provided that the permit is supported by both the impacts assessment and a re- siting of the proposed project to mitigate wind, water and shading impacts; and if the proposed project is not supported by an adequate impacts assessment, or if it cannot be re-sited to mitigate the impacts to the Pope Property, that the permit be denied. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 2nd day of March, 2004.
Findings Of Fact The parties stipulated and agreed that the allegations contained in Paragraphs 1, 2, 3, 4, 5, 6, and 8 of the Notice of Violation issued by the Department could be accepted as true without the need for any further proof. The allegations are as follows: The Department of Environmental Regulation is the administrative agency of the State of Florida charged with the duty to protect Florida's air and water resources and to administer and enforce the Florida Air and Water Pollution Control Act, Chapter 403, Florida Statutes, and the rules promulgated thereunder, Chapter 17, Florida Administrative Code. Respondents, Robert and Velda Elbert, own a parcel of land located at 123 Gulfview Boulevard, Hudson, Florida, adjacent to waters of the Gulf of Mexico at Yellow Point, Pasco County. Respondent, Marvin Mattix, is a resident of Pasco County whose occupation includes the construction of seawalls. The Department has previously informed Respondents Elbert that Respondents had, on the aforesaid property, violated the Florida Air and Water Pollution Control Act, Chapter 403, Florida Statutes, and applicable rules, Chapter 17, Florida Administrative Code. The Department informed Respondents of these violations by sending Respondents official correspondence on April 3, 1979, attached as Exhibit A. On or before January 30, 1979, Respondent Elbert and Mattix constructed or caused to be constructed a seawall on submerged lands and in waters on the Gulf of Mexico adjacent to Respondents Elberts' aforesaid property, and placed fill on submerged land and in waters of the Gulf of Mexico in connection with construction of the seawall. The aforesaid seawall and associated fill was placed in waters of the State on a submerged lands in, adjacent to the continuous with the waters and shoreline of the Gulf of Mexico in an area dominated by plant species listed in Section 17-4.02(17), Florida Administrative Code, including red mangrove (rhizophora mangle) and black mangrove (avicennia germinous). Respondents' seawall construction and associated filling activity was undertaken without an appropriate and valid permit from the Department as required by Section 17-4.03 and 17-4.28, Florida Administrative Code, and Section 403.087, Florida Statutes. 8. The Department incurred costs and expenses while investigating this matter as outlined in Exhibit B. As to Paragraph 4, the parties stipulated that fill was not placed in behind the seawall because after the Elberts were advised by the Department that the fill would be illegal, they ceased further activity. The parties stipulated and agreed that Paragraphs (a), (B), (C), (D), and (E) from the Petition for Formal Administrative Hearing could be accepted as true without the need for any further proof. These facts are as follows: NAME AND ADDRESS OF AFFECTED AGENCY - Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. (Agency's file number unknown). NAMES AND ADDRESSES OF PETITIONERS - Robert F. Elbert, P. O. Box 357, Cape Canaveral, Florida 32920 and Velda L. Elbert, P. O. Box 357, Cape Canaveral, Florida 32920. DISPUTED ISSUES OF MATERIAL FACT - There are no disputes with the material facts presented. CONCISE STATEMENT OF THE ULTIMATE FACTS, THE ACTIONS TAKEN BY THE PETITIONERS AND THE REASONS FOR ENTITLING THE PETITIONER TO RELIEF - Petitioners allege (sic) that a contract was negotiated with a local sea wall builder (Mr. Mattix) who was recommended by the bank financing the sea wall (Community Bank of Pasco). Mrs Mattix informed Mrs. Elbert that a permit was not required and our seawall was one of the last two he could build without his obtaining a permit. Both petitioners (R.F. Elbert and V. L. Elbert) met with Mr. Mattix at the building site and per Mr. Mattix's suggestion, the sea wall location was selected so that the petitioner's sea wall would be 'in line' (lined up) with the other sea walls already built on the street. This appeared to be the logical location and the sea wall was built accordingly. After the sea wall was completed and paid, the petitioners were notified, both verbally and in writing, that the sea wall was built in violation of existing environmental regulations. To that point, the petitioners were unaware of violating any rules or regulations. Had the petitioners been aware of any regulations, they definitely would have complied and assured the builder also comply. INFORMAL ACTION - No informal actions were taken by the petitioner except to talk to DER in Tampa (Mr. Resico). Mr. Resico informed the petitioners that the agency and Mr. Mattix (sea wall builder) held meetings and that Mr. Mattix informed the agency that he had misinterpreted the agency's regulations. At no time did Mr. Mattix inform the petitioner about his actions with your agency. The Elberts own a parcel of land in Pasco County adjacent to the Gulf of Mexico. They are planning to utilized the property as a retirement residence. The desired to build a seawall so that they could park a boat adjacent to their property. The bank that financed the seawall recommended that they retain Marvin Mattix to construct the seawall. The Elberts contracted with Mattix to construct it. The location for the seawall was chosen because it lined up with other seawalls near to the Elberts' property. The Elberts would have preferred the seawall be built further into the Gulf, but they were advised by Mattix that it should line up with other seawalls. Some of the other seawalls were apparently constructed without any permit from the Department of Environmental Regulation, and the Department has taken some steps to investigate the alleged violations, although no formal notices have been issued. The Elberts discussed with Mattix whether any permits from government agencies would be required, and they were advised that they would not need any permits. The builder advised the Elberts that he had approval from the Federal corps of Engineers, but the Elberts were later advised by the Corps that they had no knowledge of the project. The Elberts were not aware that they were violating any standards when they constructed the seawall. The seawall was in line with other seawalls on the street, and it will be expensive and difficult to remove it. The Elberts have been totally cooperative in their dealings with the Department of Environmental regulation, and it is apparent that they would not have taken any steps to construct the seawall without appropriate permits except for the advice of the builder. The Notice of violation issued by the Department was directed not only to the Elberts, but also to the builder, Marvin Mattix. The notice was forwarded to Mattix with a return receipt, and Mattix did not sign for the notice. Mattix did not request a hearing with respect to the allegations of the Notice of Violation. The seawall is located approximately eight feet seaward of the mean high water line adjacent to the Elberts' property. There are no seawalls directly adjacent to the Elberts' property but there is a seawall two lots down which also apparently was constructed without a permit. The Elberts' nex-door neighbor applied to construct a seawall at the same location as the Elberts' seawall but was told that a wall could not be placed that far into the water. The Elberts' property does not actually face directly into the Gulf of Mexico. It is on an estuary, and is approximately two lots down from the open waters of the Gulf. It is not a residential canal. Prior to the hearing, the Department incurred $182.60 in costs and expenses while investigating this matter.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is, hereby RECOMMENDED: That a final order be entered requiring that Robert and Velda Elbert and Marvin Mattix take the following corrective action: Within thirty (30) days of the date of the final order, they should remove the seawall and associated fill, and restore the area to its original condition; They should make payment to the Department in the amount of $182.60 to compensate the Department for expenses in tracing, controlling nd abating the violation. That enforcement action be taken first against the builder, Marvin Mattix, so that the cost of removing the seawall and restoring the area is borne by the party who caused the violation; and that only upon the failure of enforcement against Marvin Mattix should final enforcement action be taken against the Elberts. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of December, 1979. C. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1979. COPIES FURNISHED: Robert F. and Velda L. Elbert Post Office Box 357 Cape Canaveral, Florida 32920 Alfred W. Clark, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact By Joint Application for Works in the Waters of Florida filed January 14, 1993, Richard and Claudia Cowart requested permission to construct a concrete seawall with sloping riprap along their property, which is bordered by the Caloosahatchee River. The application describes the length of the seawall as 130 feet. The application describes the length of the riprap as "up to 130 [feet]" and the width of the riprap as five feet. The application states that the Cowarts are the record owner of the property and that Brian Bevan is an owner of adjacent property. There are seawalls for some distance on both sides of the proposed seawall, including along the property of Mr. Bevan. The seawall on the side opposite that of Mr. Bevan is indicated on the drawing accompanying the application. The drawing attached to the application depicts an existing retaining wall waterward of the approximate mean high water line and the proposed seawall landward of the approximate mean high water line. The proposed seawall would travel parallel to the river's shoreline for a distance of about 130 feet. At both ends, the wall turns away from the river and runs an additional 25-30 feet perpendicular to the river. At the southerly end of the proposed seawall, the drawing also indicates a "wetland enhancement area" where 100 one-gallon red mangrove trees would be planted. A second drawing attached to the application consists of a cross- section of the proposed activity. The cross-section drawing depicts, among other things, the riprap to be placed waterward of the proposed seawall, which is perpendicular to the surface of the water. The proposed riprap has no discontinuities. By letter to the Cowarts dated January 20, 1993, the Department of Environmental Regulation (DEP) stated that it found that the proposed activity was exempt from the need for a wetland resource permit, pursuant to Rule 17- 312.050(1)(t), Florida Administrative Code. Within a couple of months after issuance of the letter, the Cowarts constructed a seawall. Petitioners challenged the determination by filing a petition on February 4, 1993. The proposed seawall would not violate existing water quality standards, impede navigation, or adversely affect flood control.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of the Bevans and declining to award attorneys' fees and costs against them or any of them. ENTERED on October 28, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on October 28, 1994. APPENDIX Rulings on Petitioners' Proposed Findings Petitioners filed a proposed recommended order without proposed findings of fact. To the extent that anything in the proposed recommended order may be construed to be a proposed finding of fact, it is rejected as irrelevant or unsupported by the appropriate weight of the evidence. Rulings on Cowarts' Proposed Findings 1-11: adopted or adopted in substance. 12: rejected as unnecessary. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 John L. Chaves, Assistant General Counsel Douglas H. McLaughlin, Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Brian Bevan 1200 Masanabo Lane Ft. Myers, FL 33919 Richard A. Lotspeich Landers & Parsons Box 271 Tallahassee, FL 32302
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By application dated March 9, 1981, and received by the DNR's Bureau of Beaches and Shores on March 13, 1981, respondent sought a permit to construct five single-family dwellings on five 64-foot-wide parcels of land located seaward of the established coastal construction control line (CCCL) on Grayton Beach. Attached to the application were site plans, an affidavit of ownership and a warranty deed showing respondent Roberts to be the owner of the subject property. (DNR Exhibit 1) Question number 5 on the permit application required the "specific reasons the applicant feels that the permit should be approved and why construction seaward of the control line . . . is considered necessary for reasonable use of the property." The answer provided by the applicant to this question was "the landward property line is located 150 feet seaward of the control line. Therefore, no upland property is available on the site for development." (DNR Exhibit 1) By form letter dated March 16, 1981, DNR notified respondent Roberts that his application for a permit was incomplete and that two further items of information were necessary before his application could be considered. One item was written evidence that the proposed project would not contravene local setback requirements or zoning or building codes. The other item was detailed site, grading, drainage and structural plans and specifications for the proposed structure. These plans were to be certified by a registered Florida engineer or architect. (DNR Exhibit 2) On or about March 31, 1981, the DNR received the certified architectural plans from the project architect, who is registered in the State of Florida. These plans, as well as the site plans submitted by the engineer, contained the signature and seal of the architect and the engineer. They each intended their signature and seal to constitute a certification that, in their opinion, the drawings or plans were in compliance with all statutes, rules, local ordinances and/or other regulations which govern the project. A certification of documents by the placement of signature and seal of an engineer or architect is the commonly accepted practice and usage in those professions. It is not the policy of DNR to require an itemized certification reciting every requirement of the DNR rules. By form letter dated April 6, 1981, the DNR notified the applicant that written evidence of compliance with local government regulations was still lacking. (DNR Exhibit 4) On April 13, 1981, DNR received a letter dated April 9, 1981 from the Walton County Attorney advising that "The Board of County Commissioners of Walton County has no local setback requirements or zoning or building requirements which would prohibit the proposed activity as submitted to the Bureau." (DNR Exhibit 5) This letter satisfied the requirement of Rule 16B-33.08(1)(c), Florida Administrative Code, that the proposed project would not contravene local setback requirements or zoning or building codes. Full scale copies of topographic and site plans were received by the Bureau of Beaches and Shores on April 15, 1981. The application for a permit was deemed complete as of April 15, 1981, (DNR Exhibit 7), and respondent Roberts' agent was notified by letter dated June 23, 1981 that the DNR Executive Director had recommended to the Governor and Cabinet (the agency head of the DNR) approval of the application. (DNR Exhibit 10) The completed application reflects that the five single-family dwellings are to be supported by treated timber pilings with an underside minimum elevation of +14 feet (NGVD). The Federal Base Flooding Elevation for Grayton Beach is +9 feet (NGVD). The architect has certified that the proposed dwelling units are designed to withstand 140 mile per hour winds. The seaward- most dwelling of the five is a maximum of 263 feet seaward of the coastal construction control line, and the applicant's entire parcel of land is located over 150 feet seaward of the control line. The project is located approximately 230 feet from the mean high water line. The project also includes the construction of a private road, septic tanks and drainfields. The dune system in front of the proposed structure will offer substantial protection to the structure against storm and wave action. The excavation proposed includes that necessary for the placement of the pilings, the septic tanks and the drainfields, and the construction of the proposed driveway. The proposed drainfields will extend partially above existing grade and fill material i11 be placed over them. The driveway consists of a 16-foot asphalt paved road located landward of the proposed dwellings. The dunes will be reduced in height where the driveway is to be constructed. It is not clear from the testimony or the documentary evidence adduced at the hearing where the parking of vehicles belonging to residents or guests of the five units is to occur. While there was testimony from Mr. Truitt to the effect that no net loss of sand will occur and that the project will involve more of a balancing of grade as opposed to excavation, the engineering plans submitted with the application illustrate at least nine rather large areas of cut and fill associated with the driveway, septic tanks and drainfields. The project engineer had considered no studies on the topography or littoral trends of this specific site, had no knowledge of engineering data regarding adjacent properties and had not reviewed any data regarding major storms on the subject project site. The engineering plans submitted as a part of the application contain a diagram illustrating five separate 750 gallon septic tank systems, one for each dwelling unit, with the "drainfield [for each unit] to be constructed in accordance with Chapter 10D-6, F.A.C." (DNR Exhibit 1) The larger scale engineer's drawing submitted to DNR on April 15, 1981, gives more specific information regarding the location and depth of the below grade drainfields on the seaward side of the structures. A DNR interoffice memorandum dated June 1, 1981, reflects that the applicant's agent agreed in a telephone conversation that, "if possible, he would move the septic tank (750 gal) and related drainfields to the landward side of the buildings." (Joint Exhibit 1) The Cabinet agenda item dated later in time, however, notes that the "septic tanks (750 gallon) and drainfields will extend an additional 50 feet seaward of each dwelling." (DNR Exhibit 8) The exact proposed location of the septic tanks and drainfields was not clarified at the final hearing, nor was sufficient evidence adduced concerning the justification for the proposed discharge system. Evidence concerning the availability of any existing alternatives to the system proposed by the applicant was not adduced, nor was evidence presented concerning storm water discharge. As of the time of the hearing in this matter, the applicant had no plans for heating or cooling the five dwelling units. When asked at the hearing what "justification" the Bureau of Beaches and Shores received for the proposed waste water discharge system, Mr. Clifford Truitt, the Bureau's chief engineer and the person responsible for review of this application, replied in two ways. First, he stated that the fact that the property was located entirely seaward of the CCCL was justification for the discharge system. However, he admitted that a "dry sanitary system" would be a better alternative. Later, Mr. Truitt stated that "justification" for the domestic waste system is only required when there is a beach level discharge. Mr. Truitt was accepted as an expert witness in the area of coastal engineering. His opinions regarding the proposed project were based upon his review of aerial photography of the Grayton Beach area and comparison of topographic profiles of the area, his review of the engineering and topographic information submitted with the application itself and his familiarity with the project location. No evidence was adduced that engineering data concerning storm tides related to shoreline topography was considered by Mr. Truitt or anyone else. No specific studies exist regarding the stability, littoral trends or the erosional history of the proposed site and surrounding area. The project site has been the subject of other permit applications considered by the DNR, and Mr. Truitt was of the opinion that a mitigating feature of the present application was that "the present proposal has the lowest density and least extension seaward of the control line of any proposal to date." (DNR Exhibit 8) It was Mr. Truitt's opinion that the dwelling unit structures were adequately elevated and designed to adequately resist the natural forces associated with a 100-year return interval storm event and would not increase the threat of damage or danger to nearby structures. Factual evidence concerning the 100-year storm event was not presented at the hearing. Mr. Truitt further opined, without the aid of engineering data or the studies mentioned above, that the proposed construction would not affect the natural shoreline fluctuations or the stability of the dunes in the area. Such an opinion contains no factual basis in the record of this proceeding, and thus is not sufficient evidence upon which to make a similar finding of fact. On various sporadic occasions, a waterway or pass connecting Western Lake to the Gulf of Mexico runs in a westerly direction in the vicinity of the applicant's property. At times, this watercourse has been wide and deep enough to allow swimming, diving and the passage of small boats. The witnesses who testified about this watercourse were not qualified as surveyors or experts in estimating or calculating the exact location of that watercourse relative to the proposed site, and there was no testimony that such an event had occurred within the past twenty years. At least two witnesses testified that the last time they could recall the watercourse or pass traversing or abutting the applicant's property was in the late 1950s. The proposed project site has been covered with storm waters on at least two occasions in the past seven years. No evidence was adduced at the hearing concerning the substantial interests in this permit application of named petitioners Colonel G. A. P. Haynes, Mr. and Mrs. Roy Cawthon, Mrs. Kate Florence, Mrs. Burton Murray, Colonel and Mrs. Lee Fry, Mrs. Laney Ellis and Mrs. Randall Jones. Mrs. G. A. P. Haynes, one of the petitioners in this proceeding, owns and resides on property immediately adjacent to the project site, and presently entertains an unbroken view of the beachfront. She is concerned with potential sewage problems and damage to her residence from flying debris caused by wind or storm should the proposed construction be approved. Mrs. Haynes was also concerned about the potential adverse effect of the proposed construction on the value of her adjacent property. Petitioner Burton Murray lives to the north of the project site, at least several hundred feet away. His prime concern was that no structure could survive at that location and that the project would therefore be a waste of money. Petitioner Elizabeth Hayes Jones (named as Ms. Lisbeth Haas in the petition) lives across the street and to the east of the project site. Her residence was completely destroyed by hurricane and has since been rebuilt at the same site. She feels that the applicant's project site is not safe for construction, and fears storm damage to her home from the buildings if constructed.
Recommendation Based upon the findings of fact and conclusions of law recited herein it is RECOMMENDED that the application for a coastal construction control line permit to construct five single-family dwellings on Grayton Beach be DENIED. Respectfully submitted and entered this 25th day of May, 1982. DIANE D. TREMOR, 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 May, 1982. COPIES FURNISHED: Jerry W. Gerde, Esquire Davenport, Johnston, Harris, Gerde & Harrison, P. A. 406 Magnolia Avenue Panama City, Florida 32401 W. Paul Thompson, Esquire Thompson and Adkinson P. O. Drawer 608 DeFuniak Springs, Florida 32433 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32303 Dr. Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue Whether a permit should be issued to Petitioner Theodore B. Meadow to construct a dwelling on the Gulf Coast of Florida as requested in his application filed with Respondent Department of Natural Resources.
Findings Of Fact Having considered the evidence and argument of counsel, the Hearing Officer finds: In July of 1979 Petitioner filed an application for a permit to build a duplex dwelling seaward of the coastal construction setback line on a parcel of land bounded by the theoretical extension seaward of the north/south boundary line of Ponce de Leon Street in Yon's Addition to Beacon Hill on St. Joe Beach, Florida. The parcel of land is 70 feet in width and approximately 175 feet in depth to the high-water line of the Gulf of Mexico and lies between State Road 30 (US Highway 98) and the Gulf of Mexico at St. Joe Beach in Gulf County, Florida. The application, Department of Natural Resources File #79-P-283, was filed pursuant to Rule 16B-25.05, Procedure to obtain variance; application, Florida Administrative Code, which had been promulgated under the authority of Sections 161.052, 161.053 and 370.021(1), Florida Statutes. Attached to the application was a copy of a deed to subject property to Albert H. Hinman dated December 12, 1977; an undated authorization from the owner of the property to Petitioner Meadow to apply for a variance and if granted to construct a building on the property; a survey of the property; a floor plan of the building with a typical wall section; and a topographical plat of the lot involved. In response to Rule 16B--25.05(1)(d): "Statements describing the proposed work or activity and specific reasons why the applicant feels the variance should be granted." Petitioner stated, in part, "...the reason that the permit should be granted is because applicant does not have sufficient space on property he is purchasing from A. H. Hinman to construct said building outside of the DNR Coastal Construction Control Line." The survey shows that 14 to 15 feet of the property lies landward of the Department of Natural Resources' setback line. At the time of the hearing no purchase had been made, but there is no dispute regarding the authorization of the owner to allow Petitioner to build if a variance is granted. After filing the application Petitioner consulted with the staff of the Department concerning the construction seaward of the setback line. The Chief Engineer of the permitting section of the Bureau of Beaches and Shores, who is responsible for accepting, evaluating and making recommendations for permits for construction, inspected the site of the proposed structure on October 11, 1979. He took a copy of the plans and specifications for the structure, a plot plan, and the engineering statement which accompanied the plans to review on the site. After the inspection he made a determination that the structure was appropriately designed for the hazard environment and located in such a position as to offer the least potential adverse impact to the beach in the area. Recent topographic changes, topographic data including that submitted by Petitioner, and other historical information was used to assess and evaluate the project. Thereafter, the engineer consulted with the Executive Director of the Respondent Department and gave a favorable recommendation in terms of minimal impact. The Executive Director determined that the structure was designed and located to have the minimum adverse impact on the beach, and that the structure was adequately designed to resist natural forces associated with a hundred-year storm surge (Transcript, pages 52-56). At the formal hearing the Executive Director stated that he based his recommendation for approval by the Executive Board on the precedence of previous action of the Executive Board and because he found that the Petitioner had his application in order. Petitioner Meadow has followed the guidelines of the administrative rules and submitted all required information. He has provided his reason for requesting a variance and believes the information furnished compels the Respondent Department to grant the waiver inasmuch as no modification was requested and he cannot build the structure he desires on the 14 to 15 feet of land he is authorized to use which lies landward of the 1975 setback line. The immediate area involved in this proceeding is relatively undeveloped beach property approximately one (1) mile in length at St. Joe Beach, Gulf County, Florida some twenty-nine (29) miles to Panama City and six (6) miles to Port St. Joe. The real property has been divided into fourteen (14) lots more or less similar to the lot on which Petitioner seeks to construct a duplex (Petitioner's Exhibit 2; Transcript, page 137). No structures except one multifamily dwelling have been constructed on any of the fourteen (14) lots. Most the construction along the nearby coastline was completed prior to March 21, 1975, the date the Respondent Department established a coastal setback line under the then applicable statutes and rules. Beacon Hill is a subdivision about a mile and a half from the subject area on the coastal western edge of Gulf County. The structures are close together, the majority of which were constructed prior to 1975 without a permit from the Respondent Department. Historically, the area would have had a similar topography and beach conditions to the subject area, but because of structures built on the beach vicinity the primary dune system has been eradicated, the beach is narrow in that vicinity, and there is virtually no vegetation (Transcript, pages 135-136). It has been found that any construction, particularly of a building, generally has an adverse impact on a beach dune system (Transcript, pages 149, 161). The "setback line" defined in the 1975 statutes and rules was established March 21, 1975 (Transcript, page 169). Thereafter, in 1978 the legislature amended Section 161.053, Florida Statutes, and ordered the Respondent Department to establish a "coastal construction control line" to replace the setback line, but said line has not yet been established, although at the hearing a member of Respondent's engineering staff stated that a study was in progress. Neither Petitioner Meadow nor Mr. Hinman, the owner of subject property, requested the Respondent Department to review the setback line or establish a coastal construction control line prior to filing of the application in 1979 for a variance of the 1975 setback line (transcript, page 93). "Setback line" and "coastal construction control line" are not synonymous. The setback line set a seaward line for construction, and the coastal construction control line defines the impact of a 100-year storm surge or other predictable weather condition (Transcript, page 179). An engineer on the Respondent Department's staff who qualified as an expert was of the opinion that the coastal construction control line, when established, would be landward of the setback line established in 1975 (Transcript, page 198). There have been two (2) hurricanes which have impacted the Gulf Coast since the setback line was established, one in September of 1975 and one in September of 1979. These storms had relatively little visual impact on the subject beach area except for erosion of the fore dune, but the storms substantially impacted the accretion of the coastline (Transcript, pages 189- 195). At the final hearing Ms. Sally Malone, a resident living one block from the proposed structure of Petitioner Meadow, protested the proposed construction on the beach and in general the removal of trees. The evidence shows she has a legitimate concern for the effect through erosion the construction might have on the beach near her home. Petitioner Meadow and the Respondent Department submitted proposed findings of fact and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is recommended by the Hearing Officer that the application of Theodore B. Meadow for a waiver or variance be denied without prejudice to his refiling an application after the coastal construction control line is established as required by Section 161.053, Florida Statutes, supra. DONE and ORDERED this 5th day of November, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 5th day of November, 1980. COPIES FURNISHED: Mark J. Proctor, Esquire Office of the General Counsel Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303 Cecil G. Costin, Jr., Esquire 413 Williams Street Post Office Drawer 98 Port St. Joe, Florida 32456
The Issue The central issue in this case is whether the Department of Environmental Protection (Department) should approve a permit for the applicant, Indian River County (County), to install a prefabricated erosion prevention reef (PEP reef) off the coast of Vero Beach, Florida.
Findings Of Fact The Department is the state agency charged with the responsibility of reviewing and approving permits such as the one at issue. The County is a governmental entity and is the applicant which has requested a permit for an experimental project to be located in Vero Beach, Florida. The Petitioners oppose the proposed project. The project at issue is the installation of a PEP reef system to be located between approximately 300 feet south of reference monument R-80 to approximately 300 feet south of reference monument R-83, in Indian River County, Florida. Because of the uncertainty as to the performance of the proposed project and the potential that it may cause adverse impacts to the coastal system, the Department classified the project as experimental pursuant to Chapter 89-175, Section 27, Laws of Florida. In making its preliminary approval for the permit, the Department required special permit conditions to safeguard the coastal system and marine turtles. Additionally, the Department specified both preconstruction and post installation monitoring and testing. The term of the permit is limited to five years, including three years to monitor the project's impacts. A PEP reef is a prefabricated erosion prevention product installed as a breakwater off the shore. In this case, the product measures approximately twelve feet long and six feet high. The base of the product (which is conically shaped) is approximately 15 feet tapering to a one foot crest at the top. The PEP unit is a proprietary product of a company called American Coastal Engineering (ACE). The County proposes to contract with ACE for the manufacture and installation of the units. It is proposed that the PEP units would be installed in an alignment parallel to the beach for a total, though not continuous, length of 3000 feet. The proposed location for the PEP reef in Vero Beach is in an erosion area as identified by the Department's Beach Restoration Management Plan. Historically, the subject beach has experienced a steady and continuous erosion which has been exacerbated during storm conditions. The proposed site is suitable for the experimental nature of this project. At least one past storm event caused substantial damage to the beach front at the project site. Walkways, utilities, and other public improvements were substantially damaged. Past efforts to curb the erosion have proved unsuccessful. Such efforts included beach renourishment, and the installation of seawalls or bulkheads. Future beach renourishment is undesirable for the project site due to the lack of compatible sand, and its high cost. More important, however, are concerns over the negative environmental impacts to nearshore reefs which could result from a large scale renourishment project. For over ten years the County has sought a solution to the erosion that has plagued the project site. To that end, the County established a special committee, the Beach and Shore Preservation Advisory Committee, to review options available and to recommend long-term solutions to the County. In June, 1993, the County contracted with Petitioner Walther to prepare a map of the nearshore hardbottom reef and to evaluate alternatives for beach restoration at the project site. Such work was completed, and recommendations from Mr. Walther were not incompatible with the installation of the proposed reef. The proposed installation should not adversely affect the hardbottom reefs which are in the vicinity of the PEP units. Such hardbottom is considered environmentally sensitive; however, no PEP unit will be placed on the hardbottom or so close to it that it will disturb the organisms located within the hardbottom community. In December, 1993, the County submitted an application for an experimental coastal construction permit to install the PEP reef which is at issue. The PEP units are to be placed in seven to ten feet of water. The PEP reef is designed to reduce wave heights, particularly during a storm event, which should reduce the wave energy and currents in the lee of the structure. While it is hoped the units will deter erosion, they may also cause some accretion to the beach. Whether such accretion would be temporary or long- term is uncertain. As a result of studies performed by the University of Florida under the direction of Dr. Dean, and supported by the County's coastal engineer Mr. Donaldson, it was determined that the PEP units should be installed in shorter lengths (than originally designed) with gaps between each segment. Consequently, the installation proposed by the County is not continuous but is staggered and gapped. The installation proposed by the County is unique in that the coastal characteristics of the area and the proposed design should produce results different from past installations of reef structures in Palm Beach County, Florida. As a result, studies performed by Dr. Dean in connection with a reef installed in Palm Beach County have been discounted as dissimilar to the one proposed in this case. In reviewing the subject permit application, the Department requested additional data which the County retained Dr. Zarillo to gather. Dr. Zarillo performed numerical modeling for the proposed reef system. Based upon Dr. Zarillo's work it is expected that the PEP reef system will have a positive benefit in that wave height and energy is likely to be reduced by the installation of the units. The site for the installation is suited for the proposal and is not within an area that is considered environmentally sensitive. Moreover, the PEP reef itself will add to the development of species since it should develop into a nursery habitat for young fish and other marine organisms. The installation of PEP reefs at other locations have proven to be both successful and unsuccessful. Having considered the studies performed by Dr. Bruno, an expert in coastal engineering and in measuring/modeling coastal processes, it is likely that the proposed project will be similar enough in design to installations reviewed by Dr. Bruno to allow the proposed project to be compared. Dr. Bruno has monitored three installations at three different sites in New Jersey. Each site had different results based upon conditions of each location. One site, expected to be most like the proposed site in Vero Beach, has experienced a reduced rate of erosion. Based upon Dr. Bruno's "real life" experience it is expected that the proposed installation will result in a reduction of wave height on the order of 10 percent to 20 percent. Consequently, the proposed installation should provide a benefit to the control of erosion. The reduction of wave height leads to a reduction in the erosive power of the wave field. Therefore, it is expected to result in a reduced erosion rate behind the PEP reefs. Additionally, Dr. Bruno's assessment of Dr. Zarillo's modeling work suggests that "in theory" the proposed site should experience a reduction in wave height as a result of the proposed installation. As a result, both scientific methods support the proposed project. No scientific study can, however, assure the success of this project. In fact, success may be derived from the value of the data which will be gathered during the monitoring period. Such data may assist in the future design of structures to reduce wave energy. The County's proposed monitoring plan contains detailed and adequate performance criteria to assure that the PEP reef system will be fully evaluated. The County has provided adequate assurance that it will comply with the permit conditions, including the modification or removal of the reef system if directed by the Department. All installation and monitoring as well as removal is to be performed at the County's expense. The PEP reef system will have no appreciable adverse impact on marine turtles. Construction is prohibited during nesting season under the terms of the permit. The PEP reef system will have no adverse impact on swimmers or boaters. The units are to be clearly marked and identified under the terms of the permit. No adverse impacts to Petitioners Walther and Clemens should be incurred as a result of the installation of the proposed project.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection enter a final order approving the permit requested by the County. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4045 Rulings on the proposed findings of fact submitted by the Petitioner Walther: 1. Paragraphs 1, 3, 4, 6, 7, 8, 9, 10, 12, 13, 16, 17, 26, 29, 42, 44, 47, 50, 51, 59, and 60 are accepted. With regard to paragraph 2, the allegation is hearsay as it relates to the record cited; however, although not stipulated, the record most likely supports the paragraph in substance. Paragraph 5 is rejected as irrelevant. There is no evidence to support the factual conclusion that because another permit holder has failed to remove a reef that the County will similarly default on its obligation to do should the agency order the PEP reef removal. Paragraph 11 is rejected as irrelevant. Paragraph 14 is rejected as irrelevant if it purports to suggest the contracting was improper; this proceeding does not consider the propriety of the contracting process. With the deletion of any emphasis and the last sentence which are rejected as argument, paragraph 15 is accepted. Paragraphs 18 through 24 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 25 is rejected as hearsay; it is accepted that Mrs. Clemens opposed the permit and requested a hearing. Paragraph 27 is rejected as an incomplete statement and therefore not supported by the total weight of credible evidence. Paragraph 28 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 30 through 33 are rejected as law not statements of fact. Paragraph 34 is accepted in general terms but not as to the specific measurements cited. Paragraphs 35 through 38 are rejected as contrary to the weight of all credible evidence. It is determined that the site is suitable for a non-biased, comprehensive analysis of the project. Paragraphs 39 through 41 are rejected as contrary to the weight of all credible evidence. Paragraph 43 is rejected as irrelevant. With regard to paragraph 45, it is accepted the reefs may settle but such is expected to be unlikely to impair the overall performance of the structure; therefore, the paragraph, as drafted, must be rejected as contrary to the weight of all credible evidence. Paragraph 46 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 48 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 49 is rejected as unclear or incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraph 52 is rejected as irrelevant. Paragraph 53 is rejected as incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraphs 54 through 58 are rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 61, it is accepted that Dr. Dean envisioned a current being created that would run parallel to the shoreline as a result of the reef installation but otherwise rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 62, such statement is generally true; however, Dr. Dean did not conduct any sediment transportation test to verify that the structure in an open setting (as opposed to the experimental tank) would transport sediment as inferred. Paragraphs 63 through 67 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 68 is accepted as accurate but the agency did not express, and the record does not establish, that there is a concern that the County may not honor its agreement to remove the PEP reef if directed to do so. Paragraph 69 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner Clemens: 1. None submitted. Rulings on the proposed findings of fact submitted by the Respondent Department: All proposed findings of fact adopted by the Department as listed are accepted. See comments below as to rulings on the proposed findings of fact submitted by the County. Rulings on the proposed findings of fact submitted by the Respondent County: 1. Paragraphs 1 through 5, 7 through 15, 17, 20, 21, 23, 24, 26, 27 through 30, 34, 40, 41, 42, 43, 45, and 46 are accepted. With regard to paragraph 6, it is accepted that an extensive renourishment program might damage the sensitive nearshore hardbottom community; otherwise rejected as irrelevant. With regard to paragraph 16, with the deletion of the word "significantly" in the second sentence and the last sentence which are rejected as irrelevant, editorial comment, argument or not supported by the total weight of credible evidence, it is accepted. With regard to paragraph 18, the first sentence is accepted. As to the balance of the paragraph, with the deletion of the word "significantly" and the substitution of "might" for "could", the paragraph is accepted. Otherwise rejected as an inaccurate characterization of the weight of the record. With regard to paragraph 19, the first sentence is accepted. The remainder of the paragraph is rejected as irrelevant. Paragraph 22 is rejected as a compound statement of proposed fact some of which are accurate but which taken in whole constitute argument, unnecessary, irrelevant or not supported by the weight of the credible evidence. Paragraph 25 is rejected as unnecessary or irrelevant. With regard to paragraph 31, with the deletion of the word "significant" in sentence three, the paragraph is accepted. With regard to paragraph 32, with the deletion of the word "significant" in sentence two, the paragraph is accepted. Paragraph 33 is rejected as repetitive, unnecessary or irrelevant. With regard to paragraph 35, the first sentence is accepted. The remainder of the paragraph is rejected as unnecessary, comment, argument, or irrelevant. Paragraphs 36 through 38 are rejected as unnecessary, comment, argument, or irrelevant. The proposed PEP reef should not adversely impact the Vero Beach shoreline. Paragraph 44 is rejected as unnecessary, comment, argument, or irrelevant. With regard to paragraphs 47 through 53, it is accepted that the Petitioners did not establish that they will be substantially affected by the proposed project; however, their conduct does not rise to the level to establish participation in the administrative process was for an improper purpose. Consequently, the paragraphs are rejected as argument, irrelevant or contrary to the weight of the credible evidence. COPIES FURNISHED: Steve Lewis, Esquire John W. Forehand, Esquire LEWIS, LONGMAN & WALKER, P.A. 215 S. Monroe Street, Suite 702 Post Office Box 10788 Tallahassee, Florida 32302 Kevin S. Hennessy, Esquire LEWIS, LONGMAN & WALKER, P.A. 2000 Palm Beach Lakes Boulevard Suite 900 West Palm Beach, Florida 33409 Michael P. Walther 1725 36th Avenue Vero Beach, Florida 32960 Adele Clemens 3747 Ocean Drive Vero Beach, Florida 32963 Thomas I. Mayton, Jr. Dana M. Wiehle Assistants General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherall Secretary Department of Environmental Regulation Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Regulation 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Marvel O. Warren and his brother Dan own a parcel of beachfront property in Walton County, south of State Road 30A (SR30A) near Seagrove Beach. Like Mr. Warren, the other intervenors own beachfront in the area, which lies in County Commission District Five. In 1954, before the Warrens built their house landward of the dunes, no road ran toward the beach from SR30A. Construction traffic to the house site beat down a path, however. In Walton County, each county commissioner is responsible, within the district he represents, for road maintenance and, on existing county right-of- way, for construction of new roads. DNR's Exhibit No., 7; Testimony of Owens. Expenditures in excess of $500 for materials beyond what the county has stockpiled require approval by the full commission, however. Testimony of Owens. FIRST ROAD BUILT Albert Gavin of Freeport was county commissioner for District Five when, in 1958 or 1959, he caused a red clay road to be built from SR30A southerly along the eastern edge of the Warren property over sand dunes and onto the beach to within 20 or 30 feet of the water's edge. During Mr. Gavin's tenure, the county owned a borrow pit and kept no records of how much clay was placed where. (No records of the quantity of clay deposited on the beach at any time were offered in evidence at the hearing.) Fishermen used the road to launch boats into the Gulf of Mexico. Except for any portion that may have extended onto sovereignty land, the road lay on county-owned right-of-way. UPLAND SEGMENT PERMANENT The clay road landward of the sand dunes leading along the eastern edge of the Warren property to SR30A (the upland road) has been consistently maintained and in existence since it was originally built. The upland road ends at the bluff line, which is practically congruent with the coastal construction control line at that point on the coast. DNR's Exhibit No. 4; Testimony of Hill. At some time between 1960 and 1969, also landward of the subsequently established coastal construction control line, a clay parking lot was built adjacent to the upland road. BEACH SEGMENTS EVANESCENT Whenever clay has been placed on the beach, seaward of the crest of the landwardmost sand dune, the gulf has washed it away. Many clay roads at the site did not last the summer. Virtually no clay deposit has lasted longer than a full year. One attempt after another to construct a clay road seaward of the sand dunes (the beach segment) has failed. Witnesses testified that the sun bleached the red clay and that wind covered it with white sand but wave action has been the clay's principal nemesis. When Harold C. Lucas was commissioner for District Five from March, 1968, to January, 1969, no clay was deposited on the beach and there was no beach segment. Except for three months in 1975 when Van Ness R. Butler, Jr., of Grayton Beach, served as District Five's county commissioner, Conley Martin of Portland represented the district from 1969 to 1976. As county commissioners, both of these men directed clay to be placed on the beach at various times. COASTAL CONSTRUCTION CONTROL LINE ESTABLISHED A beach segment was in existence at the time the coastal construction control line was established, and recorded, on June 4, 1975, although the beach segment that then existed went straight from the foot of the sand dune toward the edge of the gulf, instead of veering east like the new; longer beach segment built last September. THEN EXISTING ROAD DESTROYED, REPLACED In September of 1975, Hurricane Eloise removed not only the beach segment of the road but much of the beach, including the dunes themselves. As road foreman for District Five at the time, Robert N. Budreau used a road grader and other equipment to fill a large hole between the Warren house and the sand dune and to cover over broken toilets and other debris with a mixture of sand and yellow clay. After the filling, a roadway was constructed with the same sand and clay mix, extending about 25 feet seaward of the dunes along a line perpendicular to the gulf shore. REPLACEMENT ROAD RECLAIMED BY ELEMENTS In 1976, Freddie M. Bishop was elected county commissioner for District Five. After the beach segment built by Mr. Budreau washed out, at least one constituent, Gene Wesley, asked Mr. Bishop to replace it, but Mr. Bishop broke with sisyphean tradition, and declined to place any clay on the beach, or otherwise attempt to reconstruct or replace the beach segment. By the time petitioner McLean succeeded Bishop as commissioner for District Five, the beach segment had been completely obliterated. The end of the upland road continued, however, to be one of some half-dozen points of access for four-wheel drive vehicles to Walton County's gulf beaches. Commissioner Bishop did cause two truckloads of oyster shells to be deposited on the "hump" of the landward sea dune, on or near the bluff line. NEW BEACH SEGMENT In response to constituents' requests, Mr. McLean ordered a new road built. He caused clay and gravel to be placed and compacted seaward of the coastal construction control line by county workmen and machinery, including some "borrowed" for the purpose from colleagues on the Walton County Commission. Built without a DNR permit in September of 1981, this new beach segment extends 180 feet seaward of the coastal construction control line and takes an unprecedented veer to the east. The only preexisting foundation for the new beach segment was the beach itself. Like Commissioner Anderson, Commissioner W. F. Miles "lent" county trucks he had charge of to respondent McLean, but Mr. Miles did not know in advance that Mr. McLean intended to use them to build a road on the beach. Commissioners Matthews, Miles, and Owens were aware of the existence of the coastal construction control line in Walton County and, in a general way, of DNR permitting requirements and procedures, including the fact that the County Commission itself acts on certain coastal construction applications. Commissioners Anderson and McLean did not testify on these matters. DNR has issued no permit for anything like the new beach segment at any time since the coastal construction control line wad established. DNR has no record of any inquiry concerning the new beach segment by or on behalf of petitioners McLean or Walton County, before the new beach segment was built. There was no showing that Mr. McLean sought legal advice before ordering construction of the new beach segment. Paragraphs 1 through 8 of DNR's "Final Order," as amended at the final hearing and set forth above, have been established by stipulation of the parties. The hearing officer has had the benefit of posthearing submissions, including proposed findings of fact, filed by all parties. Proposed findings have been adopted, in substance, where relevant, except when unsupported by appropriate evidence.
Recommendation Upon consideration of the following, it is RECOMMENDED: That DNR order petitioner Walton County to remove the new beach segment seaward of the Walton County Coastal Construction Control Line within 30 days of entry of a final order. That DNR remove the new beach segment seaward of the Walton County Coastal Construction Control Line itself, in the event of petitioner Walton County's noncompliance with the final order; and take steps to recover the cost from petitioner Walton County. That DNR impose no civil or administrative fine against petitioner W. L. "Billy" McLean. DONE AND ENTERED this 30th day of July, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982. COPIES FURNISHED: George Ralph Miller, Esquire Post Office Box 687 DeFuniak Springs, Florida 32433 W. Dennis Brannon, Esquire Post Office Box 1503 Fort Walton Beach, Florida 32549 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 M. Stephen Turner, Esquire Post Office Drawer 591 Tallahassee, Florida 32303 Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
