The Issue The issue for determination at the final hearing was whether the Petitioner Blaha possessed the requisite standing to maintain this action and if so, whether the Applicant Aquarina Developments, Inc., established by a preponderance of the evidence entitlement to a permit from the Coastal Construction Control Line ("CCCL") which would authorize construction of the following: (1) twelve above-ground balconies extending five feet over the CCCL; (2) two roof overhangs extending approximately one foot over the CCCL; (3) two dune walkovers and four decks providing elevated beach access; and (4) a temporary fence extending no more than five feet beyond the CCCL. At the final hearing, the Respondent Aquarina Developments, Inc., (hereafter "Aquarina" or "Applicant") offered Respondent's Exhibits 1-16, which were admitted into evidence. Edward Fleis, Howard J. Teas, Bert Leltz and Ross Witham testified on behalf of the Respondents. Peter Pritchard, Rob Lee and Georges Blaha testified for the Petitioner. Additionally, public comment was taken as provided at Section 120.57(1)(b)(4), Florida Statutes. A Proposed Recommended Order has been submitted by the Respondent Aquarina Developments, Inc. To the extent that the proposed findings submitted by Respondent are not reflected in this Order, they are rejected as unsupported by the weight of credible evidence or as being immaterial to the results reached.
Findings Of Fact By application No. 775-020.61 filed on July 1, 1981, Respondent Aquarina requested a coastal construction permit for construction of portions of twelve cantilevered balconies, two roof overhang sections, a temporary construction fence, four elevated wooden decks, and two dune crossovers, all seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida. The purpose of the proposed structures is to enhance utilization of the beach by residents of Aquarina's PUD located between the Atlantic Ocean and Mullet Creek, a tributary of the Indian River in South Brevard County, while at the same time inhibiting the deleterious effects of unrestrained pedestrian and vehicular access across the beach dune on the property. Respondent Aquarina's project is located on the barrier islands separated from the mainland by the Indian River, thirteen miles south of Melbourne and five miles north of Indian River County. Aquarina proposes to develop a condominium community approved as a PUD by Brevard County, with a projected population of 3,400 persons including 1,600 residential units, a commercial area, and 500 hotel rooms. The project includes at least two condo- mini urn buildings located entirely landward of the CCCL except for the following specific portions: Twelve cantilevered balconies ex- tending approximately five feet beyond the CCCL but not touching the ground; Two roof overhang sections extending approximately one foot beyond the CCCL; Two beach-dune walkover structures to be constructed a maximum of seventy- five feet seaward of the CCCL, which are to provide controlled beach access; Four elevated wooden observation decks constituting integral parts of the walkover structures; A temporary construction fence extending no more than five feet beyond the CCCL. On or about November 20, 1981, the Department indicated its intent to recommend to the Executive Director the issuance of the Applicant's coastal construction permit. After the granting of a requested extension of time, Petitioner Blaha filed objections and a Petition for the Initiation of Formal Proceedings under Section 120.57, Florida Statutes. The Petition raised three issues: Whether construction of the proposed minor structures seaward of the CCCT would harm sea turtles inhabiting the area at issue; Whether a new CCCL should have been set based on changing conditions in the area; Whether the additional shading caused by the proposed structures would harm the dune vegetation system. At the beginning of the hearing, the Hearing Officer heard argument and received evidence on the issues raised by the Motions to Dismiss filed by the Department and the Applicant. The Respondent's Motions raised three issues: Whether the Petitioner had standing to initiate this cause; Whether the alleged impact that the Applicant's proposed coastal construction would have on sea turtles lies within the jurisdiction of the Department and the Hearing Officer under Chapter 161 of the Florida Statutes; and Whether the exact configuration of the CCCL is a proper subject for consi- deration at a hearing challenging the proposed issuance of a coastal construction permit. Petitioner Blaha admitted that he did not live on the beach at issue and in fact lived on the west side of State Road A1A, three miles to the north of the Applicant's proposed project. The Petitioner stated that he was the Director of the Space Coast Branch of Friends of Animals, an environmental organization concerned about wildlife, although not representing the organization in this proceeding, and that he had a general interest in protecting the beach from erosion, a problem affecting everyone on the barrier island. In response to the argument that Petitioner Blaha had no special interest differing in kind from the interests of the general public, the Petitioner alleged that he runs on the beach and observes the sea turtles, arguing that this evinces a more than average interest in protecting the beach and its wildlife. The Hearing Officer also heard argument on whether the Department has jurisdiction to consider potential impacts on the nesting habitats of sea turtles from proposed coastal construction, under Chapter 161, Florida Statutes. Petitioner Blaha urged that although Section 161.053, Florida Statutes and the rules promulgated thereunder do not address sea turtles and their protection, the statute should be so interpreted. The Department responded that any jurisdiction it may have over sea turtles would be reposited in its Marine Resource Division, not in the permitting procedures for a coastal construction permit. In addition, federal laws protect endangered sea turtles, and the federal government has primary jurisdiction over the regulation of the nesting habitats of such sea turtles. Similarly, the Applicant and the Department pointed out that the Petitioner's criticism of the placement of the present CCCL falls outside the scope of a hearing on the issuance of a coastal construction permit, since Section 120.54, Florida Statutes provides for rulemaking proceedings for those attempting to change a rule established CCCL and Rule 16B-33.10, Florida Administrative Code, contains provisions for CCCL revisions or modifications on application of a riparian owner of property at or on the CCCL. Petitioner Blaha is not a riparian property owner and this was not a proceeding under Section 120.54, Florida Statutes. Respondent Aquarina established that it had taken and would continue to take all reasonable actions necessary to ensure the protection of sea turtles that inhabit the site through public relations campaigns and public advertisements to educate the public and especially the residents of the PUD and through architectural design efforts and dareful construction practices that will limit the impact of the proposed development on sea turtles and their nesting habitats. Moreover, to the extent that the development might have an impact on sea turtles, the source of the impact would not primarily be the structures at issue in these proceedings, but the buildings, parking lots, and other human habitation lying landward of the CCCL. The proposed temporary construction fence to be placed five feet beyond the CCCL will help conserve the dunes by limiting the potential impact of construction, and the Respondent Aquarina has agreed to restore that affected area to its natural state upon the completion of construction. Most importantly, the proposed dune crossovers will protect the dunes from the destruction that is occurring in the dunes to the north of the project and on the project site itself because of unrestrained pedestrian and vehicular traffic over and/or through the dunes and the accompanying destruction of dune vegetation in those areas. The dune crossovers are wooden walkways on raised pilings designed to have as little contact with the dunes as possible, with railings to restrain pedestrians from straying away from this direct access from the condominiums to the beach. The crossovers will make it unnecessary and undesirable for residents and visitors to create alternative foot paths through the heavy dune vegetation to the beach. Coupled with the educational program already being implemented by Aquarina, the dune crossovers should help to conserve the dunes. The Respondent Aquarina established that the incremental shading caused by the proposed roof overhangs extending about one foot beyond the CCCL and the cantilevered balconies extending approximately five feet beyond the CCCL would not significantly add to the shading from the buildings themselves, which lie entirely landward of the CCCL. The evidence showed that even the impact of the shading from the landward buildings would have no significant impact on the dune vegetation system or increase the rate of erosion or deterioration of the dune. See Rule 16B-33.02(23)(b), Florida Administrative Code. The additional impact from the minor structures for which the Respondent Aquarina seeks its permit should be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Department of Natural Resources, through its Executive Director, grant the requested construction control permit to the Applicant Aquarina Developments, Inc., subject to the conditions stated in the proposed permit (No. BE-80), the draft of which was attached to the Department's letter of November 20, 1981, notifying Petitioner Blaha of the Department's intent to issue the requested permit. DONE and ORDERED this 25th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1982. COPIES FURNISHED: Georges Blaha 280 Flamingo Drive Melbourne Beach, Florida 32951 Deborah A. Getzoff, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Clifford A. Schulman, Esquire GREENBERG TRAURIG ASKEW HOFFMAN LIPOFF QUENTEL & WOLFF, P.A. 1401 Brickell Avenue Miami, Florida 33131 Henry Dean, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Executive Director Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303
Findings Of Fact On April 23, 1980, the county applied to DER for a permit to place approximately 334,000 cubic yards of sand along the southern 2.4 miles of the eastern shoreline of Key Biscayne to create an additional recreational beach for public use and to control beach erosion. The northern limit of the Project area is the southern boundary of Crandon park, the southern limit is the Cape Florida Lighthouse, and the seaward limit is the "design toe of fill", which results in establishing a new mean highwater line at approximately the 1913 shoreline. No fill will be placed along a 1600-foot area along the shore between 1500-feet and 3100-feet north of the lighthouse, where accretion has occurred since 1913. The re-nourished beach is proposed to average approximately 100 feet in width. On October 15, 1980, DER issued a letter of Intent to deny the requested permit. There are approximately 45 acres of sea grass within the Project Area which are proposed to be covered with sand as a result of the project. Sea grass is a major marine resource in Florida, and the anticipated loss of these 45 acres is one of the primary reason DER proposed to deny the permit application. Transects made by the County in December of 1977, and March of 1978, showed that the sea grass in the Project Area varies in density from "sparse" in approximately half of the Project Area to "dense" in approximately ten percent of the Project Area, with the remainder being considered being "medium" in density. Approximately 25 percent of the area to be filled is barren bottom. Sea grasses serve several important functions in the marine ecosystem. They are a vital and productive link in the marine food chain. By cycling energy from the sun into digestible plant material, sea grasses provide food for various organisms which, in turn, are eaten by other organisms in the food chain. Sea grasses assist in maintaining good water quality by causing a baffling effect which improves clarity, and by assimilating the potentially harmful nutrients from the water column. Sea grass roots bind sediments on the sea bottoms, thereby detering erosion. Additionally, sea grass beds function as prime nursery habitat for juvenile fish and other young marine animals as well as spawning grounds for various marine species. Sea grass beds further provide areas for concealment protection and feeding for all types of marine-creatures. Two types of marine sea grasses predominate in the area off Key Biscayne: Syringodium filiforme, or "manatee grass", and Thalassia testudinum, or "turtle grass". The sea grass beds proposed to be filled by this project are dominated by Syringodium filiforme, a long, slender grass which, when compared to turtle grass, offers less refuge to smaller marine animals because its leaves are slender and round and it does not occur in dense groups. In addition, Syringodium filiforme is not as good a soil stabilizer as turtle grass, due primarily to its root structure. It also offers comparatively less surface area for the attachment of epiphytes and algae. A significant portion of the sea grasses in the northern part of the Project Area are ephemeral: that is, they have grown in since 1967, and could very likely be destroyed during a major storm event. It is unlikely that they will be in place for sufficient periods of time to become a major influence on the grain size of the sand in the area, nor will they have a major influence on the long-term sediment dynamics of the area. The 45 acres of sea grass in the Project Area constitute only about two percent of the approximately 2,000 areas of sea grass habitat located immediately to the east of the Project Area. In addition, there are approximately 150,000 acres of sea grass beds lying within that portion of Biscayne Bay in Dade County, Florida. There is an almost solid belt of turtle grass beginning on the offshore or ocean-side of Key Biscayne extending southward of Key West out to the Merquesas Islands and, with a slight break, to the Dry Tortugas. Unlike Syringodium filiforme, turtle grass serves as a true nursery ground for marine organisms in their early life stages. The portion of the sea grass community proposed to be filled in the Project Area is not a good nursery ground, primarily because of the small amount of turtle grass present. The turtle grass beds present in the Project Area do not constitute a mature stable community comparable to those located slightly farther offshore Key Biscayne. These better turtle grass beds have longer blades that do not show wear from wave action and are covered with epiphytes and other marine organisms. Further, unlike the turtle grass in the Project Area, these beds are dense, with little open space between them, and have little or no other plants growing with them. The sea grass beds in the Project Area are simply not qualitatively as rich as these adjacent beds. These offshore sea grass beds serve as true nursery grounds for marine life. Shrimp and certain game and commercial fish, as examples, are located primarily in nursery grounds in Biscayne Bay and Hawk Channel, where there are more mature and stable turtle grass communities. In light of the extent and condition of the sea grasses in the fill area and the associated sea grass communities both inshore and offshore Key Biscayne, taken together with the design of the overall project as hereinafter described, the total effect of the proposed fill on marine life should be inconsequential. The sand to be placed in the Project Area will be dredged from a borrow area located approximately one mile south of Key Biscayne. This site was selected by the United States Army Corps of Engineers. A consultant retained by the County has recommended that certain portions within this borrow area not be used, and that other areas adjacent thereto be utilized if necessary. This modified borrow area falls within the area described in the County's permit application for the source of the fill material. The depth of the sand above the substrate in the borrow area ranges from 1.0 to 9.5 feet, with a substantial portion of the area having in excess of a five-foot depth of sand. Assuming sand will be removed to a depth of five feet, the sand will be taken from approximately a 2,000 by 1,000-foot site. If done in this manner, only about one-third of the borrow area designated by the Corps of Engineers and modified by the County's consultant will be utilized. The entire borrow area designated by the Corps of Engineers contains approximately one million cubic yards of sand. There are no known corals or hard-bottom communities within the proposed borrow area. In addition, there appear to be very few benthic organisms in this area, which is comprised primarily of shifting sand. The benthic organisms that do exist in the area will, of course, be removed during dredging. However, the borrow area can reasonably be expected to repopulate with these organisms as soon as the dredging operation is concluded. Further, the area from which the fill is proposed to be obtained is well removed from any areas of persistent sea grass cover. There are only five or six patches of sea grass in the borrow area, the largest being approximately 12 feet across. These patches do not contain turtle grass and may be easily avoided during dredging. The record in this case clearly establishes that use of the sand from the borrow area should not have an adverse impact on the environment surrounding that area. The sand proposed to be placed on the beach is similar in grain size and composition to the sand that is on the existing beach, owing probably to the fact that it was at one time located on the beach and has been removed through the process of erosion. This sand is of such quality that there should be only minimal turbidity occurring during the dredging operations. There are very small quantities of fine material within the borrow area, and the chemical and physical composition of the sand there closely matches the chemical and physical composition of the sand on the beach. As stipulated by the parties, it is not anticipated that any turbidity problems will result from a physical or chemical breakdown of the material after it is deposited on the beach, and it is also not anticipated that significant long-term turbidity will result from the actual fill being placed on the beach because of the small quantity of fine material contained in the fill. The sand is proposed to be dredged from the borrow area by means of a hydraulic dredge, and transported in a sand/water mixture via pipeline to the Project Area. The sand will be placed on the beach by a method known as longitudinal diking, which permits most of the sand to precipitate before the water returns to the ocean, thereby keeping most of the sand in the Project Area and reducing the impact on receiving waters. The 45 acres of sea grass in the Project Area discussed above will not be covered immediately by fill. This acreage figure represents the total area of sea grass that will be covered after the fill has reached the "theoretical- toe of fill". The theoretical design profile of the beach cannot be achieved immediately because it is not possible to operate the necessary equipment below the waterline. The project design calls for fill to be placed on the beach in a different configuration than will ultimately be obtained, and allows natural wave action to reshape the sand to achieve the design profile. It is anticipated that the entire process will take approximately two years. This is not a unique process, in that the Crandon Park beach immediately north of the Project Area was renourished in a similar fashion in 1969. The Crandon Park design profile was achieved in 1971, and the record establishes that sea grasses offshore Crandon Park were not adversely affected by the sand placed on that beach. Further, no additional fill has been placed on Crandon Park beach since its original renourishment in 1969, and that beach is still very close to the original design profile. The design profile for Crandon Park beach is identical to that proposed for the Project Area. Accordingly, once the design profile for this project is achieved, the greater weight of the evidence in this cause establishes that the sand in the renourished area should not migrate beyond the design toe of fill. A rock structure referred to as the "terminal groin" is proposed to be constructed in connection with the project at the lighthouse at the southern extremity of the beach. The purpose of the terminal grain is to retain the sand placed along the beach. This structure will extend seaward approximately 350 feet, with a top width of seven feet, and top elevations ranging from plus 2.6 feet mean low water at the most seaward location, to plus 7.0 feet mean low water at the beach. The County proposes to modify the slope of the groin to create additional intertidal and subtidal habitat by placing native limestone boulders along the entire 350-foot length of the south side of the groin. By making this modification, approximately 7,000 square feet of subtidal rock habitat will be provided. In addition, this modification will create approximately 36,750 cubic feet of void space for potential marine habitat. The approximate cost of this structure is $200,000. The terminal groin will provide a type of rocky habitat which naturally existed in the Biscayne Bay area, but which has been largely eliminated by man-made improvements. This type of habitat, of course, will not duplicate the type currently provided by the 45 acres of sea grass proposed to be covered by fill. Specifically, rocky habitat does not serve the nursery and breeding functions which sea grasses provide. Further, it neither contributes food stuff by way of primary productivity nor cycles energy into the marine ecosystem in the same manner as sea grasses. The County, in fact, had at one time considered replanting sea grass to mitigate for the loss of the grass communities in the Project Area, but abandoned that alternative in view of the existing large areas of sea grass adjacent to the project, and the fact that the barren bottoms in the Project Area and in adjacent areas have occurred as a result of high wave energy. As a result, it was felt that any attempt to replant the sea grasses by way of mitigating the effect of the proposed project would be unsuccessful. With a properly designed terminal structure, the renourished beach should last approximately 30 years. The rate of erosion on the beach when the project is concluded should approximate 15,000 cubic yards per year. Accordingly, it is unlikely that the beach would require renourishing in less than ten years following the project. As noted above, the Crandon Park beach was restored in excess of 12 years ago, has not been renourished, and still is very close to the original design profile. Sea turtles nest at Bill Baggs State Park and at Crandon Park. The record in this case establishes that these turtle nests can be fairly easily found and relocated. The Corps of Engineers has a turtle protection program with the U.S. Fish and Wildlife Service under which contractors on beach renourishment projects are required to relocate turtle nests, utilizing persons licensed by the Florida Department of Natural Resources. Dade County also has a turtle relocation program which is currently being utilized in Crandon Park. The record in this case does not establish that the proposed beach renourishment project will adversely affect the nesting of sea turtles within either the Project Area or areas adjacent thereto. Extensive erosion has occurred on the beaches on the eastern shore of Key Biscayne. It is currently not possible, for example, to walk from one end of the beach on Key Biscayne to the other without climbing seawalls and jetties, since portions of the beach are completely under water at all times except during extremely low tidal periods. A substantial portion of the project Area is completely submerged even during low tide. The Hearing Officer personally viewed the extent of the erosion in the Project Area. The placement of fill in the northern 1.2 miles of the project will create public access between Bill Baggs State Park and Crandon Park, which is maintained by Dade County. The project will also create a public beach where currently none exists eastward of the proposed erosion control line for the northern 1.2 miles of the project. Beach renourishment will provide support for and stabilize the restored beach on Crandon Park, thereby enabling that beach to last longer, and will also provide erosion control for the entire length of the eastern shoreline of Key Biscayne. The project, as designed, will protect against a ten-year storm of 24-hour duration, thereby helping to diminish serious injury to property and persons by reason of violent storms. Additional protection will also be provided to the Cape Florida lighthouse, a State historical landmark. Although not a hurricane surge protection project, the beach renourishment program will provide some degree of protection from hurricanes. More protection is provided to upland structures by increasing the distance between them and adjacent water bodies. Pursuant to Section 161.053, Florida Statutes, the Department of Natural Resources has determined that severe beach erosion has occurred along the southern 2.4 miles of Key Biscayne, and that the beach either has been or will be destroyed in the immediate future unless a publicly financed program is undertaken. In 1978, and in 1979, the Florida Legislature appropriated funds for the project, and additional funding has also been approved by the Governor and Cabinet. Tourism is Florida's largest industry. In 1980, approximately 35.9 million visitors spent $17 billion in the State of Florida, generating $785 million in tax revenues and supplying employment for 535,000 people directly employed in the tourist industry. There are primarily four reasons that visitors come to the State of Florida: (1) rest and relaxation; (2) beaches; (3) climate; and (4) other attractions, primarily manmade. Over 60 percent of the visitors to Florida have indicated that beaches are their primary reason for visiting the State of Florida. In 1980, 12.6 million tourists visited Dade County. Of these, 10.3 million were domestic tourists, and 2.3 million were international tourists. these tourists spent a total of $9.5 billion in Dade County, making the tourist industry by far Dade County's largest single industry, directly accounting for 25 percent of employment in Dade County. In 1950, over $4.77 million were collected in the taxable areas of Dade County by imposition of a resort tax of two percent on hotels and motels for transients. Tourism on Key Biscayne contributed approximately $300,000 to the Dade County resort tax collection, which is 6.2 percent of the total tax collection for 1980. 57.2 percent of the domestic tourists in Dade County came to Dade County because of the beaches. Tourists visiting other sections of Dade County used the beaches on Key Biscayne because they are very convenient and pleasing. During the course of this proceeding, the deposition of Dr. Anitra Thorhaug was taken by Petitioners, and the parties have requested that the Hearing Officer, pursuant to the provisions of Rule 28-5.208, Florida Administrative Code, and Rule 1.390, Florida Rules of Civil Procedure, determine a fair and reasonable expert witness fee to be paid to Dr. Thorhaug for her deposition. Having considered the submissions of the parties on this issue, including the actual time spent in deposition of two hours and 55 minutes, and the total time of 4.5 hours devoted by Dr. Thorhaug to the taking of her deposition, it is determined that a reasonable fee for her services is $350.
The Issue The issues to be resolved in this proceeding concern whether the Department of Environmental Protection (DEP) has jurisdiction over the activities encompassed by Permit Application BA-475 (Amended) and, if so, whether issuance of the permit complies with the applicable provisions of Section 161.053, Florida Statutes, and Chapter 62B-33, Florida Administrative Code.
Findings Of Fact Undisputed Facts: The following relevant facts are established by stipulation or admission and are not disputed. The proposed project is landward of the seasonal high waterline within thirty (30) years of December 1996; The project will not interfere with public access; The project will not result in the net excavation of in situ sandy soils seaward of the coastal construction control line (CCCL); Any sandy soil or material excavated for the proposed project seaward of the control line will remain seaward of the control line or setback and be placed in the immediate area of construction; The proposed project complies with the structural provisions of Rule 62B-33.007(2), Florida Administrative Code; The proposed project complies with Rules 62B-33.007(3)(a) through (d) and (f) through (h), Florida Administrative Code. Additionally at hearing, the Petitioners and Intervenor announced that they would not present any evidence on the issue of adverse impacts on marine turtles. Accordingly, impacts on marine turtles are not at issue in this proceeding. Project Description: RHE has proposed constructing a restaurant, pool, deck and stormwater basin within the Boardwalk Beach Resort on Panama City Beach, in Bay County, Florida. The Boardwalk Beach Resort consists of four (4) multi-story hotels with six hundred (600) rooms all together, several pools, boardwalks extending the length of the property and approximately seventeen hundred (1,700) to eighteen hundred (1,800) feet of beach front property. The project site is between Thomas Drive to the north and the Gulf of Mexico to the south. On July 23, 1996, RHE applied to the Department for a CCCL permit to construct, seaward of the interim line established by the emergency Order of October 16, 1995, the restaurant, swimming pool and deck. Part of the proposed deck was located seaward of the coastal construction setback line. On December 9, 1996, the Department issued a permit to RHE to construct the restaurant building with an attached deck fifteen (15) feet landward of the location originally proposed by RHE, as well as for construction of the swimming pool. On December 16, 1996, the Department issued to RHE an Amended CCCL permit authorizing construction of a restaurant building located five (5) feet landward of the location originally proposed by RHE, as well as a deck re-designed so that it would be structurally independent of the restaurant, a swimming pool and a dune enhancement plan which would restore the sandy dune seaward of the pool and restaurant location to its pre-hurricane Opal condition and elevation. The Amended permit would require re-vegetation of the dunes at the site with native plants to secure the dunes from erosion. Both the original and the Amended permits authorized the removal of the stormwater drainage pipe that carried stormwater onto the beach that had caused erosion of the beach near the project area. On January 9, 1997, the Petitioners timely filed a Petition challenging the Department’s decision to issue the Amended permit. On February 7, 1997, the Department established a new CCCL line for Bay County that was farther landward than either the old coastal construction setback line or the interim line established in the October 1995 emergency order. The project authorized by the Amended permit would thus be located entirely seaward of the newly established CCCL for Bay County. As of February 7, 1997, the date the new line was established, RHE had not begun working on the foundation or continued construction above the foundation for any of the structures authorized by the Amended permit. The Department determined that the project did not meet the requirements of Section 161.053(9), and Rule 62B-33.004(1), Florida Administrative Code, so as to qualify for an exemption from complying with the newly established CCCL for Bay County, as the project was not “under construction” at the time the new CCCL was established. The beach and dunes system is wide and the dune system is a significant one, with elevations of fourteen (14) to sixteen (16) feet NGVD, with a wide dune crest. The dry sandy beach in front of the site, even after hurricane Opal struck, remained approximately one hundred twenty-five (125) feet wide. From 1855 to 1934 the shoreline of the site was mildly accretional. Thereafter, until 1955 accretion was less significant, but from 1955 to 1976 became significant. From February 1992 through April 1995, the project site experienced a period of mild erosion. Accordingly the long-term data shows, in essence, that the shoreline is relatively stable at the site. Hurricane Opal caused the dune to erode or retreat landward by approximately a distance of fifteen (15) feet. Hurricane Opal was a major magnitude storm with one hundred twenty-five (125) mile per hour sustained winds and one hundred forty-four (144) mile per hour measured gusts when it came ashore in the vicinity of the proposed site. The dune portion of the proposed site now essentially mimics the pre-Opal conditions. Following hurricane Opal the applicants spent approximately Four Hundred Thousand Dollars ($400,000.00) in dune restoration along the entire shoreline of the resort property, some seventeen hundred (1,700) to eighteen hundred (1,800) feet of shoreline. That dune restoration work was permitted by the Department. There is now little native salt-tolerant vegetation on the site in its natural pre-construction condition. An existing stormwater drainage pipe and catch basin extend onto the beach seaward of the location of the proposed restaurant. The existing pipe and basin have caused erosion of the beach and the sand dune system on the project site. Under the amended permit proposal the stormwater pipe and basin would be removed. All of the proposed structures authorized by the Amended permit would be landward of the pre-Opal coastal construction control line. The proposed pool will be located landward of the dune crest and fifty-five (55) feet landward of the toe of the dune. The proposed restaurant would also be located landward of the dune crest and two hundred five (205) feet landward of the mean high waterline. The original design of the project was for a much larger, three story restaurant. The original pool design called for a one hundred twenty foot pool extending from in front of the Comfort Inn to beneath the proposed restaurant, in effect being located on the first floor of the restaurant. At DEP’s request the size of the pool was reduced by fifty percent (50%) and it was relocated into the shadow of the Comfort Inn next door so that it will no longer serve as an integral part of the restaurant. Pool depths were also reduced to three (3) feet at DEP’s request. The pool, at DEP’s request, will now be constructed of Gunnite concrete material and will be frangible, that is, it will be designed to break up in storm-surge or storm-waves. This will serve to decrease the erosion which could be caused by storm-waves flowing over and around the pool structure. The same is true of the restaurant deck, which at DEP’s request has been re-designed to be separate from the restaurant and also designed to fail in storm conditions. The frangibility of the deck, as now proposed, will retard erosion during storm conditions, as the stormwater or waves will demolish the deck and remove it rather than scouring the sand dune around it. The Department also requested that the existing stormwater drain pipe and catch basin be removed and such a removal has been made a condition of the subject permit. This will require that the applicant design and build a new stormwater system. The applicant has agreed to this condition and the others referenced above. Vegetation: Construction of the proposed project will not result in the removal or destruction of native vegetation. There is no such vegetation on the site where the construction will take place. Thus, construction of the project will not result in removal or destruction of native vegetation which will either cause de-stabilization of a "frontal, primary or significant dune" or cause a significant adverse impact to the beach and dune system due to increased erosion by wind or water. A special condition of the proposed amended permit requires that the applicant submit a dune enhancement plan for restoration of the dunes seaward of the pool and restaurant to its pre-hurricane Opal condition, including re-vegetation. Such a plan was submitted by the applicant and it includes the planting of sea oats on one (1) foot centers. The planting of sea oats as part of the dune enhancement plan will constitute a significant improvement to the native vegetation situation at the site. Disturbance of Sandy Soils: The project will not result in the removal or disturbance of in situ sandy soils of the beach and dunes system to such a degree as to have an adverse impact on the system. That is, the existing ability of the system to resist erosion during a storm will not be reduced. The proposed project will not result in the removal or disturbance of in situ sandy soils of the beach and dune system to such a degree as to cause adverse impact to those systems by lowering existing levels of storm protection to upland properties and structures. All the sandy material excavated for the pool and the stormwater basin will be placed seaward of these structures on the dune in the immediate area of the construction and seaward of the CCCL. The additional sand to be placed on the dune as part of the dune enhancement plan will, in fact, enhance the ability of the system to resist erosion during the storm. The ability of the dune to resist storm erosion is primarily a function of the quantity of sand within the dune system. The additional sand to be placed on the dune as part of the dune enhancement plan will enhance the protection of upland properties and structures including those of the Petitioners and Intervenor. Excavation of the stormwater basin will not destabilize the dune on the project site. The applicant is moving the stormwater basin landward by twenty (20) feet which will minimize the potential impacts of the basin on the dune system. The preponderant evidence establishes that the structure of the pool and pool deck will not cause an increase in structure-induced scour of such a magnitude as to measurably affect shoreline change rates. Scour caused by the pool will not significantly interfere with the beach-dune system's ability to recover from a coastal storm. The frangible design of the pool decreases the likelihood that it will cause any scour. It will break up in a storm so that any scour caused by the pool would be minimal. Any scour caused by the pool would not disturb the topography or vegetation such that the coastal system would become unstable or suffer catastrophic failure. Scour would have no measurable effect. The proposed restaurant and deck will not cause an increase in structure-induced scouring during a storm of such a magnitude as to have a significant adverse impact. The restaurant and deck will be constructed on piles. Scouring around piles, in a storm situation, is very localized and insignificant. By constructing the restaurant and deck on piles at the design elevation, storm-surge and storm-waves will pass under the deck and restaurant. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune to permit natural shoreline fluctuations. The structures will be built on pilings and will be elevated above the storm-surge; thus they will not interfere with shoreline fluctuations. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to preserve and protect beach and dune system stability, in terms of the lack of interference with such. Other structures in the area are seaward of the proposed restaurant and deck, including Pineapple Willies Restaurant, located eleven hundred feet to the west. Those structures have not caused instability of the beach during hurricane Opal. Typically, existing structures do not cause instability of the dune systems. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to allow for natural recovery to occur following storm-induced erosion. Natural recovery commonly occurs under pile-supported elevated structures which is not the case with “slab-on-grade” structures which are not elevated. The pool and pool deck will permit natural shoreline fluctuations, will preserve and protect beach and dune stability, and will allow recovery after a storm because they are designed as frangible structures that will fail and disintegrate in a storm situation. Thus they will not appreciably affect the beach-dune system. Line of Construction: Most coastal construction in Bay County extends out to the pre-Opal CCCL while some construction extends beyond it. Throughout Bay County the line of construction is the pre-Opal CCCL. The line of construction is determined by the most seaward extent of similar existing structures in the immediate area of the proposed structure under consideration in a CCCL permit application. The proposed pool is landward of the line of construction determined by existing pools within the boardwalk beach resort. There are a number of existing multi-story structures to the east of the proposed restaurant that are located out to the pre-Opal CCCL. That pattern of construction continues to the east of the proposed restaurant. Approximately one thousand (1,000) feet to the east of the proposed restaurant is an existing multi-story major structure that is built out to the pre-Opal CCCL. The beach in the area of the project is highly developed with commercial and condominium buildings. Within eleven hundred to twelve hundred feet to the west of the proposed restaurant there is another major structure built out to the pre-Opal CCCL. Just beyond that structure are a number of additional major structures, including Pineapple Willie's Restaurant, that are constructed out to the pre-Opal CCCL. The multi-story major structures to the east and west of the proposed structure are within the immediate area of the restaurant. The proposed restaurant is located landward of the line of construction established by these major structures within its immediate area. That line of construction is the pre-Opal CCCL. DEP did not consider major structures more than one thousand (1,000) feet from the proposed restaurant when it determined the line of construction for the restaurant. It is DEP’s policy when reviewing CCCL applications not to consider structures more than one thousand (1,000) feet from a proposed structure when determining the line of construction. The one thousand (1,000) foot limit DEP uses to determine the line of construction is not embodied in a rule. There was no preponderant coastal engineering or other scientific evidence which justifies the one thousand (1,000) foot limit DEP imposes when it determines the line of construction. It was appropriate to consider the existing structures referenced above in assessing the line of construction for this amended permit application and considering those lying just beyond the one thousand (1,000) foot distance, because those existing structures dominate the coastal processees in the region and only lie just beyond one thousand (1,000) feet to the east and twelve hundred (1,200) feet to the west. If the Department had considered the above-referenced existing major structures just beyond one thousand (1,000) feet of the proposed restaurant, it would have been shown that the proposed project was landward of the thus established line of construction. No preponderant evidence was offered to explicate why the one thousand (1,000) foot limit was automatically adhered to in this situation. Moreover, the line of construction is not a prohibition in and of itself but rather is only one of several criteria that must be balanced in determining whether or not to approve a CCCL permit application. Projects have been approved seaward of the line of construction in the past. Minimization The location of the swimming pool at the most practicable landward location, the reduced size of the pool, as well as its frangible design and limited depth, has minimized its impact. The placing of the excavated material in the pool’s immediate area and the restoration of the dune in front of the pool and deck have minimized the impacts of the pool and deck. The construction of the restaurant on pilings with its design elevation above storm-surge and storm-wave elevations, together with locating it behind the dune crest and away from the active beach, has minimized the impact of the restaurant. The deck is on pilings as well, elevated above storm-surge and storm-wave levels. It will be physically separate from the restaurant and its design frangibility (so that it will fail in a storm) results in its impact being minimized. The stormwater basin is located as far landward as practicable. Its location and the placing of the materials excavated for the basin on the dune immediately adjacent to the basin has minimized the impact of the proposed stormwater basin on the beach-dune system. The restaurant, pool, deck, and stormwater system will not have a significant adverse impact to the beach-dune system. The restaurant will not adversely affect exiting shoreline change rates, will not significantly interfere with recovery following a storm, and will not disturb topography or vegetation such that the system will become unstable or suffer catastrophic failure. Cumulative Impacts The proposed project will not have an unacceptable cumulative impact. There are no other proposed similar projects to take into account and a cumulative impact assessment has shown there to be no adverse cumulative impact. No evidence was offered to show that an unacceptable adverse cumulative impact in terms of existing or other proposed projects will result. Positive Benefit The proposed project will have a net positive benefit on the beach-dune system. The removal of the slab-on-grade constructed building will have a beneficial impact because it will reduce the chance of storm erosion to the beach-dune system posed by such structures. The existing stormwater pipe and catch basin which cause erosion would be removed, resolving that erosion problem. Stormwater will now be retained in a new stormwater basin designed to serve 1.7 acres and it will not flow onto the beach for any rainfall event up to a one hundred year design storm. The new stormwater system is designed to recover quickly after a storm event and to treat stormwater. The removal of the stormwater pipe and catch basin, and the installation of the new stormwater basin will have a positive benefit to the beach-dune system. The new stormwater system complies with Special Permit Condition 7. Moreover the applicant will restore the dune seaward of the project to its pre-hurricane Opal condition and will plant sea oats, on one foot centers, throughout the restoration area in accordance with Special Permit Condition 1.8. Such restoration of the dune and vegetation will benefit the beach-dune system. The natural recovery process will take several decades without the placement of sand in the dune restoration project. The dune enhancement plan submitted by the applicant, in order to comply with Special Permit Condition 1.8, exceeds the requirements of that condition since it places more sand on the dunes than necessary to achieve pre-Opal conditions. Testimony of expert witness Michael Walhter, which is accepted, establishes that restored beaches and dunes function much like natural ones in storm events even though they can be somewhat inferior in resistance to storm-surge and waves since the sand is not as compacted at first. This dune enhancement plan, however, exceeds the permit requirements by placing more sand than necessary on the dunes to achieve pre-Opal conditions. The Interim CCCL On October 16, 1995, the DEP issued its emergency Order establishing an interim CCCL for Bay County one hundred feet landward of the pre-Opal CCCL. The Department established that interim line in order to regulate coastal development in the wake of Hurricane Opal. In 1978 the Legislature established criteria to be used by DEP in establishing or re-establishing all CCCL’s. They are thus to be established to define that portion of a beach-dune system subject to severe fluctuations from a one hundred year storm event. At the time of Hurricane Opal, DEP had not re-established the Bay County CCCL using a one hundred year storm event criterion. The interim CCCL for Bay County established by the above-referenced emergency Order did not utilize nor was it based on the statutory one hundred year storm event criterion. All twenty-three (23) other CCCL’s that have been established based on the statutory one hundred year storm event criterion were established by rule. As of January 15, 1997, the applicant had received all governmental approvals necessary to begin construction of the proposed project except for that which is the subject of this proceeding. On January 22, 1997, DEP by letter advised the applicant to cease and desist construction of the project. On February 7, 1997, the Department by rule then taking effect established a new CCCL.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, DETERMINED: That the Department of Environmental Protection has jurisdiction over the proposed project and that it is, therefore, recommended that a Final Order be entered granting the Respondent, Resort Hospitality’s CCCL application consistent with the terms and conditions espoused by the Final Order of December 17, 1997, Respondent’s Exhibit 2 and the project plans depicted in Respondent’s Exhibits 3 and 4. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Bram D. Canter, Esquire 103 North Meridian Street Tallahassee, Florida 32301 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire 1315 East Lafayette Street, Suite B Tallahassee, Florida 32301 Neil H. Butler, Esquire Butler and Long, P.A. Post Office Box 839 Tallahassee, Florida 32302-0839 Kathy Carter, Agency Clerk Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact The Petitioner, Dr. Jack G. Nichols, is a resident of the State of Illinois. He and his parents have, for many years, owned property on Dog island, a barrier island in Franklin County, Florida. Dr. Nichols owns Lots 107 and 108 on Dog Island, and has for many years entertained plans of building a beach house on each lot, consisting of a single-family residence for himself on Lot 108 and such a house on Lot 107 for his parents. Dr. Nichols has the habit of visiting Dog island to inspect his property on his vacations and has done so from time to time prior to April, 1984. Over the years he conceived of the general type of house he wished to build and determined prior to April, 1984 to locate the houses landward of the then-existing Coastal Construction Control Line. Pursuant to Chapter 161, Florida Statutes, the Department of Natural Resources undertook to survey and delineate a new Coastal Construction Control Line for Franklin County. The location of that line is described in Rule 16B- 26.14, F.A.C. and the new jurisdictional line became effective on April 30, 1984. Dr. Nichols came to Dog Island for his vacation in April, 1984, at which time he learned for the first time that the Department of Natural Resources had adopted the new Coastal Construction Control Line. After hearing of this new jurisdictional boundary from other property owners on the island, he sought to determine how that newly-defined boundary would affect his property and his plans for constructing a beach house. He observed aerial photographs depicting the Coastal Construction Control Line which would take effect April 30, 1984. He determined that the sites he had selected for the houses on his lots would be seaward of the new control line, as opposed to the preexisting line which he had taken into account in selecting his original home site. He also learned that if the houses he envisioned were under construction upon the effective date of the new Coastal Construction Control Line then he would be able to proceed with their construction without having to obtain a permit from the Department of Natural Resources. The Petitioner had not originally intended to construct the houses on his lots as early as April, 1984, but he became concerned that if he did not commence construction prior to the effective date of the new control line, he would not be able to place the houses at the location he had previously planned for. Thus, he took steps to retain a contractor and commence construction immediately. The Petitioner contacted Mr. William A. Shults, a contractor with experience building in the coastal areas of Franklin County. Mr. Shults was available and able to undertake construction activities and the two parties entered into a contract calling for construction of a beach house for both lots on approximately April 20, 1984. Mr. Shults immediately had necessary engineering work accomplished, had plans drafted for the structures and retained a construction crew. He cleared sufficient area on both lots to accommodate the residences and thereafter, on April 26, obtained a building permit for the structures. Materials were delivered to the island by landing craft on April 26 and 27, 1984. Mr. Shults also had a truck equipped with an auger or drilling equipment transported to the island and placed on the job site on or before April 27, 1984. The plans called for construction of the houses with a piling or pole foundation, so that the houses would be constructed above the specified flood levels. The poles and other materials necessary for construction of the foundation had all been delivered by April 27, 1984. The foundation lines were marked, the corner "batter boards" placed and other minor site preparation accomplished. The holes for the piling were to have been drilled on Saturday, April 28 but the trucks with the auger machine aboard, suffered a broken axle prior to its being positioned on Dr. Nichols' lots so that it was impossible to get the auger machine to the lots on April 28 or 29. Mr. Shults and his crew attempted to pull the truck to the site, but the difficulty of the terrain rendered that impossible. There was one other piece of auger equipment on the island, but its owner was engaged in construction activity with it at the time. That person agreed to bring his machine to the site on April 29 and begin augering and placing the poles for the pilings. His work became behind schedule however, and his machine was still involved in construction activity at his own site and could not be brought to Petitioner's site on that day. Mr. Shults, upon learning that the augering machine would not be available when needed, began commencing hand-digging of the pilings with post hole diggers on April 29. This method was a slow and laborious process because the holes had to be excavated much deeper than the length of the post-hole diggers. As a result, when the hole was dug as deep as the post-hole digger could reach from the surface of the ground, a hole had to be dug alongside the piling foundation hole so that a crew member could stand down in that hole and thus dig the piling hole deeper, handing the post-hole diggers with each load of dirt up to another crew member on the surface to dump, who would then hand the post-hole diggers back to the lower-placed crew member. This made the process of digging the foundation piling holes much slower than the use of the auger equipment. In this manner, however, Shults succeeded in digging four foundation holes on Lot 105. At that point, the augering machine arrived on the site and four piling holes were dug and the pertinent poles placed in them on Lot 107 as well. Throughout this construction process, Mr. Shults' crew was working on both foundations at one time. This allowed for less costly construction due to the efficiency of undertaking the same kind of work on two structures with the same crew at the same time. Since the two lots and construction sites adjoined each other, one crew could efficiently be used for both construction sites in an economic fashion. On April 30, Shults' construction crew proceeded to work on the structure on Lot 108 to further secure and place foundation posts. The four pilings placed in the holes on Lot 107 the day before remained in place. The construction crew and most of its equipment, and most construction work, was proceeding on Lot 108 merely because of the order of Mr. Shults to his crew to finish placing the foundation posts on that lot first, on that day. During the morning of that day, representatives of the Department arrived on the site and advised Mr. Shults that the construction activities appeared to be illegal and seaward of the Coastal Construction Control Line. They advised him that any further activity of that type would be undertaken at his and the lot owner's risk and expense. Mr. Shults thus ceased activities on both lots for a time, but during the following week, after discussing the dispute with certain Department employees, arrived at the opinion that the owner's construction activities had achieved grandfather status and that no permit from the Department would be required. He thus undertook to finish placing the foundation pilings on both lots. All the foundation pilings were installed on both lots by the end of the second week of May, 1984. Mr. Shults then contacted Dr. Nichols by telephone in Illinois informing him about the progress of the job, including the height of the piling. During this conversation Dr. Nichols became concerned that the pilings on Lot 107 did not project above the surface of the ground as far as he had anticipated, thus obstructing his view of the Gulf of Mexico from the beach house which would be constructed on top of the pilings. The view would be obstructed by the existing sand dune which Dr. Nichols had not wanted to disturb, hence locating his house in the more landward position at issue. In order to provide the desired view of the Gulf over the intervening sand dune, Dr. Nichols instructed Mr. Shults to replace the existing pilings on Lot 107 with longer ones. Mr. Shults purchased new pilings, had them delivered to the site, removed the original poles and installed the new ones in their place in the same holes, including the four holes that were dug prior to the effective date of the Coastal Construction Control Line. Dr. Nichols and Mr. Shults established that the original poles had been placed with the intention that they would be the permanent foundation for the house and no decision was contemplated nor made concerning their removal and replacement with the longer poles until after the foundation was fully constructed. In any event, by its letter of May 21, 1984, advising Dr. Nichols of the alleged violation of the Coastal Construction Control Line, the Department made a "free-form" determination that the construction activities on Lot 107 before April 30, 1984, were not sufficient to confer "grandfathered" status and that the activities were illegal unless a permit was obtained. The subject petition was filed and this proceeding ensued. It is true that Dr. Nichols' original intent was not to commence construction of the beach houses as soon as he did in April, 1984 and that he only began construction at that earlier time when he learned of the impending effective date of the new Coastal Construction Control Line which would require him to obtain a permit before constructing the houses at the sites he had previously selected. However, it is equally true that Dr. Nichols' bona fide intention when he retained Mr. Shults to commence construction was to not merely clear the site and place pilings and then construct the houses at some indefinite later time, but rather to commence construction and pursue construction activities on an ongoing, uninterrupted basis through to completion of both houses on both lots. If the Department had not intervened with its letter to the effect that the Petitioner might be in violation of the Coastal Construction Control Line, construction activities on Lot 107 would have continued to completion in an uninterrupted fashion. Prior to the effective date of the Department's Coastal Construction Control Line, the Petitioner's construction activity, involving the excavation for and placing of the foundation pilings for the residence to be on Lot 107, was undertaken and engaged in a continuous, uninterrupted fashion. The decision to remove the original pilings and replace them with longer poles was not envisioned, intended or made prior to the completion of the entire pole foundation for the house on Lot 107 in the first or second week of May. It was only at this time, when the poles were all installed, that it was determined by the owner and Mr. Shults that the original pilings were not long enough to confer a sufficient view of the Gulf from the house to be constructed on top of them. Thus, the removal of the original pilings and the replacement of them with longer poles in the same holes the original pilings had been installed in, was not an interruption in the construction activities, but was rather the correction of a deficiency in the original materials. This replacement did not involve an alteration or modification of the design, extent and type of materials of the original foundation (except to the immaterial extent that the replacement poles were round instead of square). In short, the construction activity undertaken after April 20, 1984 was a good faith effort to commence construction on the house on Lot 107 and continue it to completion in an uninterrupted fashion. The parties, Dr. Nichols and Mr. Shults, intended from the beginning to use the poles first placed in that foundation as the ultimate foundation for the structure, and did not intend merely placing those original poles, which were later removed, as a subterfuge to obtain a grandfathered status for the construction activity. The construction was landward of the Coastal Construction Control Line as it existed prior to April 30, 1984.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the Department of Natural Resources enter a Final Order determining that the structure on Lot 107, Dog Island, Franklin County, Florida is not in violation of the Department of Natural Resources permitting authority. DONE and ENTERED this 25th day of September, 1985 in Tallahassee, Florida. P. MICHAEL RUFF 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 September, 1985.
The Issue The issue in the case is whether the Town of Beverly Beach's Comprehensive Plan Amendment 03-1, initially adopted by Ordinance 2003-ORD-6 and amended by Ordinance 2004-ORD-6, is "in compliance," as required by Section 163.3184, Florida Statutes (2004).
Findings Of Fact The Department is the state land planning agency and has authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (2004). One of the Department's duties under the Act is to review proposed amendments to local government comprehensive plans to determine whether the amendments are in compliance with the Act. The Town of Beverly Beach is a small municipality in Flagler County, Florida, and has the duty and authority to adopt a local government comprehensive plan pursuant to Chapter 163, Florida Statutes (2004), and to amend the plan from time to time. In June 2002, the Town proposed to amend its Future Land Use Map (FLUM) to change some of the land uses within the 37-acre Shelter Cove Planned Unit Development (PUD). The Shelter Cove PUD was the subject of an earlier lawsuit in the circuit court for Flagler County brought by the owners and developers of the property after the Town denied their PUD application. In 2002, the court entered judgment against the Town and ordered the Town to approve the PUD application. In its order, the court included a statement that the Shelter Cove PUD was consistent with the Beverly Beach Comprehensive Plan. The purpose of the plan amendment proposed in June 2002 was to re-designate 14.25 acres from Conservation/Spoil Area to Low Density Residential, 0.75 acres of Conservation/Spoil Area to Medium Density Residential, and 8.25 acres of Low Density Residential to Medium Density Residential. The proposed amendment was transmitted to the Department for compliance review. In its July 2003 ORC Report, the Department set forth four objections to the proposed amendment: 1) increased density in a Coastal High Hazard Area; 2) no traffic impact analysis regarding emergency evacuation; 3) inadequate potable water and sanitary sewer services; and 4) unsuitability for development because of saltwater marsh and potential use by threatened and endangered animal species. The Town made changes to the proposed amendment to address the Department's objections and adopted Plan Amendment 03-1 on October 6, 2003. One significant change made by the Town was to reduce the size of the land affected by the amendment from 23.25 acres to 14.5 acres. The stated purpose of the revised amendment was to deal exclusively with the spoil areas within the Shelter Cove PUD; to convert them from Conservation to Low Density Residential. The Department was not satisfied with the changes made by the Town and on November 17, 2003, it issued a Statement of Intent To Find The Comprehensive Plan Amendment Not In Compliance. This statement did not reassert the four objections of the ORC Report, but identified only two reasons for its determination that Plan Amendment 03-1 was not in compliance: 1) increased density in a Coastal High Hazard Area that would increase evacuation clearance times and 2) inadequate sanitary sewer facilities based on the denial of the utility's permit renewal by the Department of Environmental Protection (DEP). The Department recommended remedial actions that would bring Plan Amendment 03-1 into compliance. Thereafter, the Department and Town entered into a compliance agreement to identify remedial actions by the Town that would bring the plan amendment into compliance. Pursuant to the agreement, the Town adopted remedial measures in Ordinance 2004-ORD-6 (the Remedial Ordinance) that caused the Department to determine that the plan amendment was in compliance. The Remedial Ordinance (with additions and deletions as indicated in the ordinance) states in pertinent part: Limiting Density on the 14.5-acre amendment site & Hurricane Evacuation Plan Future Land Use Element: contains policies controlling the density and intensity of development (both residential and non- residential) in the Town of Beverly Beach. Policy A.1.1.9 The Low Density Residential (LDR) land use (up to 5 dwelling units/acre) shall be applied to 14.5 acres of upland spoil sites in the Shelter Cove development as shown in Exhibit A, not to exceed a total gross density of 28 residential units. In addition to the provisions described in Policy 1.1.4, the following provisions shall apply to the Shelter Cove Development: Residential land use for the Shelter Cove Planned Unit Development(PUD)shall be limited to a maximum of 115 dwelling units. The Town of Beverly Beach shall not issue a permit or certificate of occupancy until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code (see Policy A.1.1.1). * * * Policy A.1.1.10 No later than December 2005, Beverly Beach shall revise its comprehensive plan to update the goals, objectives and policies and future land use map series and transmit such revisions to the Department of Community Affairs. The updated plan shall reflect changes to Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, since the plan went into effect in 1991. This revision shall be based on a planning period through Year 2015, with current and forecasted conditions and satisfy data and analysis requirements. * * * Revise policies under Objective D.2.1, Beverly Beach Comprehensive Plan regarding the provision of potable water and sanitary sewer Public Infrastructure/Facilities Element: refers to the protection of water quality by specific policies that require deficiencies in wastewater treatment facilities be corrected in accordance with DEP requirements. Objective D.2.1 By December 31, 1992 December 31, 2005, the Town shall require that existing deficiencies in the wastewater treatment package plants owned by Surfside Utilities operated by Ocean City Utilities be corrected in accordance with FDER Department of Environmental Protection [DEP] requirements. Policy D.2.1.1 As the Town does not own the wastewater treatment plants nor has operational control over the same, the Town shall formalize a coordination committee to include the owner/operator of Surfside Utilities Ocean City Utilities, the members of the Town Commission, members of the Flagler County Board of County Commissioners or their appointee, members of the City of Flagler Beach Commission or their appointee, and FDER the Department of Environmental Protection [DEP] and any other identified stakeholder in the Town. Policy D.2.1.2 The Town shall use the coordination committee to address the deficiencies in the wastewater plants, to set priorities for upgrading and replacing components of the plants, and to request FDER the Department of Environmental Protection [DEP]to increase and enforce their regulations requiring periodic monitoring and maintenance of package treatment plants. Policy D.1.2.3 The Town shall use the coordination committee to investigate the feasibility of assuming operational responsibility of the wastewater treatment system by another entity. Applying the five dwelling units per acre density allowed in the Low Density Residential category to 14.5 acres would generate 72.5 units. However, as indicated above, the Remedial Ordinance also restricted the total allowable dwelling units in the 14.5 acres to 28 units. The 28 units coincide with the site plan for the Shelter Cove PUD that was the subject of the circuit court judgment. The site plan called for 28 single- family lots in the former spoil areas. Charles Osbourne, Bernard Knight, and Mary Jo Knight were residents of the Town of Beverly Beach when the Town adopted Plan Amendment 03-1. They intervened against the Town in the original proceedings initiated by the Department. Following the Department's determination that the plan amendment had been brought into compliance by the Remedial Ordinance, they filed an Amended Petition to Intervene and were realigned as the Petitioners. On some date between the filing of their original petition in this case and the date of the final hearing, Petitioners Bernard Knight and Mary Jo Knight moved out of Beverly Beach. They are no longer residents of the Town. In their Amended Petition to Intervene, the Petitioners assert that the Remedial Ordinance did not resolve all the problems originally identified by the Department's ORC Report, and Plan Amendment 03-1 is still not in compliance. The Petitioners' objections to the amendment fall into three categories: insufficient and inaccurate data and analysis, insufficient legal description for the lands affected by the plan amendment, and inadequate wastewater services available for the increased density resulting from the amendment. These three categories will be used to organize the findings of fact that follow. Data and Analysis/Maps The Petitioners assert that the maps used for Plan Amendment 03-1 and the Remedial Amendment are not the official maps currently contained in the Beverly Beach Comprehensive Plan. They contend the unofficial maps contained errors that caused some of the area designated as Conservation/Saltwater Marsh to be included in the 14.5 acres re-designated Low Density Residential. At the hearing, the Petitioners also attempted to show that maps used by the Town with Plan Amendment 03-1 were not consistent with the Beverly Beach FLUM with regard to the depiction of saltwater marsh areas outside the 14.5 acres affected by the plan amendment. Whether such discrepancies exist is not a relevant inquiry for determining whether Plan Amendment 03-1 is in compliance. A 1997 report regarding threatened and endangered animal species, prepared by Lotspeich and Associates for the developer of the Shelter Cove PUD, includes a statement that there are 10.3 acres of spoil on the 37-acre PUD site. That figure is inconsistent with the Town's claim that the lands affected by Plan Amendment 03-1 consist of 14.5 acres of spoil. Lindsay Haga, a regional planner with the Northeast Florida Regional Planning Council (Council), made the determination that there are 14.5 acres of spoil area. Because the Town does not have a professional planning staff, the Council was providing planning services to the Town under contract. Ms. Haga worked on Plan Amendment 03-1 on behalf of the Town. Ms. Haga obtained a mapping of the land uses within the Shelter Cove PUD from information maintained by the St. Johns River Water Management District (District). The land use categories are based on the Future Land Use Classification Categorization System, and were applied by the District using aerial photography. Using professional software called "ArcView," Ms. Haga derived the size of the various land uses mapped within the Shelter Cove PUD by the District. The software calculated the size of the spoil areas as 14.5 acres. According to Ms. Haga, planners use this method "100 percent" of the time to delineate land uses on future land use maps. Ms. Haga was called as a witness by the Petitioners and by Beverly Beach and testified at length on direct and cross-examination on how she determined the size of the spoil areas. Nevertheless, some ambiguity remains as to whether the size and position of the spoil areas designated in the official Town FLUM are the same as their size and position as delineated by Ms. Haga for Plan Amendment 03-1 using information from the St Johns River Water Management District. The Town and the Department seem to suggest in their joint post-hearing submittal that the size and position of the spoil areas on the FLUM can be "cleaned up" or re-drawn using more site-specific information presented at the final hearing. The implication is that, if the Town's FLUM delineated less than 14.5 acres as Conservation/Spoil Area, but better data is presented at the hearing to show that the spoil areas actually cover 14.5 acres, the FLUM delineation can be ignored or treated as if did cover 14.5 acres. The redrawing of land uses as they are depicted on an adopted FLUM is arguably beyond the authority granted to the Department in Chapter 163. That issue need not be decided on this record, however, because the more credible and persuasive evidence shows there were no material changes to the size and position of the spoil areas in Plan Amendment 03-1, and no saltwater marsh was re-designated as Low Density Residential. Data and Analysis/Topographic Information The Petitioners assert that topographic data used by the Town was flawed and did not accurately reflect that much of the Shelter Cove PUD is within the 100-year floodplain. For example, the June 2002 Transmittal Packet sent to the Department included a statement that, "According to FEMA the 100 year floodplain is confined to the saltwater marsh areas located adjacent to the Intracoastal Waterway." At the hearing, the Town admitted that some of topographic information was inaccurate and described it as a "scrivener's error." The parties stipulated to the introduction into evidence of topographic information that indicates a portion of the 14.5 acres affected by Plan Amendment 03-1 lies within the 100-year floodplain. The Petitioners have not shown how the inclusion of inaccurate topographic in the data and analysis causes Plan Amendment 03-1 to be not in compliance; or, put another way, the Petitioners have not shown how the accurate topographic information proves Plan Amendment 03-1 will be inconsistent with the Beverly Beach Comprehensive Plan or applicable state laws and regulations. The Beverly Beach Comprehensive Plan does not prohibit Low Density Residential uses in the 100-year floodplain. Data and Analysis/Clustering The Petitioners contend that the data and analysis was flawed because it included a reference to the possibility of clustering dwelling units to avoid adverse impacts to areas unsuitable for development, but the Town has no regulations that allow for or address clustering. Neither the Amended Petition to Intervene nor the evidence presented by the Petitioners makes clear how this alleged error causes Plan Amendment 03-1 to be not in compliance. Any alleged error must relate to the 14.5 acres affected by the amendment. The Petitioners did not show that clustering of dwelling units is planned or necessary on the 14.5 acres. Data and Analysis/Scrub Jays The Petitioners contend that the data and analysis is insufficient because it fails to describe and account for the current use of the site by the Florida scrub jay, a bird listed as threatened by the Florida Fish and Wildlife Conservation Commission and the United States Fish and Wildlife Service. The Town and Department stipulated that scrub jays have been seen on the property. Charles Osbourne and Gail Duggins, a birdwatcher, testified that they have seen scrub jays in the Shelter Cove PUD area on several occasions. They marked Petitioners' Exhibit 15 to indicate eight specific sites within the PUD where they had observed scrub jays. None of the marked sites are located on the 14.5 acres affected by Plan Amendment 03-1. Lotspeich and Associates conducted a scrub jay survey on the 37-acre Shelter Cove PUD in 1997. They observed no scrub jays on the 14.5 acres that will be affected by Plan Amendment 03-1. In the written report of the survey, Lotspeich and Associates concluded that, "no jays reside on-site nor did any birds react as though they were defending territory which extended onto the property." Following a second survey in 2002, Lotspeich and Associates reached the same conclusion that the property "is unlikely to support a resident Florida scrub jay population." The observations of scrub jays made by Mr. Osbourne and Ms. Duggins do not contradict the conclusions of the Lotspeich and Associates reports. Mr. Osbourne and Ms. Duggins did not offer an opinion (and no foundation was laid for their competence to offer such an opinion) that scrub jays reside on the 14.5 acres affected by Plan Amendment 03-1. The Department's ORC Report stated that the originally-proposed amendment was not consistent with Policy E 1.4.3 of the Town's comprehensive plan which calls for the Town to obtain information from appropriate agencies concerning the known locations of listed plant and animal species. The Department recommended in the ORC Report that the Town conduct a survey for gopher tortoises and other listed species. The Department's objection about listed species, however, was not included its subsequent Statement of Intent to Find The Comprehensive Plan Amendment Not in Compliance. The Town had available to it, as part of the data and analysis to support Plan Amendment 03-1 and the Remedial Amendment, the Lotspeich and Associates reports prepared for the United States Fish and Wildlife Service. The reports convey the results of Lotspeich and Associates' surveys of the Shelter Cove PUD property for gopher tortoises, scrub jays and other listed species. It is likely to be the best information available since it is a site-specific, scientific study. The Petitioners did not show that better data were available or that the Lotspeich and Associates reports are flawed. In fact, the Lotspeich and Associates reports were exhibits offered by the Petitioners. Policy E.1.4.3 of the Beverly Beach Comprehensive Plan directs the Town to adopt land development regulations that provide protections for known listed species. Land development regulations are the usual and appropriate tools for applying specific protective measures to specific development proposals. No regulations have yet been adopted by the Town to protect listed species. Listed species are not left unprotected from development activities in the Town, however, since there are both state and federal laws to protect listed species and their habitats. Data and Analysis/Beach Access The Petitioners contend that the data and analysis was insufficient because it indicated that there are five locations in the Town where the public can gain access to the beach, but the Petitioners allege there are only two public beach walkovers that qualify under the Beverly Beach Comprehensive Plan. The beach access issue relates to the Town's recreational level of service standard adopted in the Recreation and Open Space Element of the Beverly Beach Comprehensive Plan. Policy F.1.1.1 specifies that the adopted level of service standard is "Five publicly-owned beach access facilities." The Petitioners apparently believe that the easements acquired by the Town that provide for public beach access across private property do not qualify as publicly-owned beach access facilities as contemplated by the Beverly Beach Comprehensive Plan. The term "publicly-owned beach access facilities" is not defined in the Recreation and Open Space Element, but one can find a statement at page F-2 that, "Access points and parking areas are support facilities for public owned beaches." Therefore, the Town considers an access point, without any man- made structures, to be a "facility." Furthermore, the comprehensive plan, itself, includes a map that depicts the location of the five public beach access points. It must be assumed that these access points met the Town's intent and meaning. By raising the issue of whether the data and analysis for Plan Amendment 03-1 is accurate in referring to the existence of five public beach access points, the Petitioners are collaterally attacking the existing comprehensive plan. Stephen Emmett, the mayor of Beverly Beach, stated that the five public beach access points depicted in the Beverly Beach Comprehensive Plan, as well as a new sixth beach access point, are currently maintained by the Town. Description of the Land Affected The Petitioners alleged in their Amended Petition to Intervene that the Town did not have an adequate legal description for the lands affected by the plan amendment. The issue was not raised in the Petitioners' Pre-Hearing Statement. When the Department objected to the Petitioners' presentation of evidence on this issue because it was not raised in their Pre- Hearing Statement, the Petitioners voluntarily withdrew the issue. Sanitary Sewer Services The Petitioners contend that sanitary sewer services are not adequate for the increased residential density that would result from Plan Amendment 03-1. The Beverly Beach Wastewater Treatment Facility is operated by Ocean City Utilities. Ocean City's application to renew the permit for the facility was denied by DEP in September 2003 because the facility was not in compliance with several DEP regulations. As a result of the denial of Ocean City's permit renewal application, DEP would not allow new customers to connect to the Beverly Beach Wastewater Treatment Facility, including the Shelter Cove PUD. DEP subsequently approved the connection of the Shelter Cove PUD wastewater collection system to the Beverly Beach Wastewater Treatment Facility. Permitting problems associated with the treatment plant was one reason for the Department's objection to the originally proposed plan amendment and the Department's subsequent determination that Plan Amendment 03-1 was not in compliance. No evidence was presented to show that Ocean City Utilities has corrected the deficiencies in the wastewater treatment plant or has obtained a renewal permit from DEP. Nevertheless, the Department determined that Plan Amendment 03-1 is in compliance based on the changes to the Beverly Beach Comprehensive Plan called for in the compliance agreement and adopted in the Remedial Ordinance. Objective D.2.1 of the Beverly Beach Comprehensive Plan was amended to require that existing deficiencies in the wastewater treatment plant be corrected by December 31, 2005. Policies D.2.1.1, D.2.1.2, D.2.1.3 were amended to re-constitute and re-energize a coordination committee to address the deficiencies in the wastewater plant and the feasibility of giving operational responsibility to another entity (such as Flagler County). In addition, the Remedial Ordinance amended Policy A.1.19 of the Beverly Beach Comprehensive Plan to prohibit the Town from issuing a permit or certificate of occupancy for the Shelter Cove PUD "until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code." No dispute was raised about the available capacity of the Beverly Beach Wastewater Treatment Facility to serve the Shelter Cove PUD.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Town of Beverly Beach Plan Amendment 03-1, and Remedial Ordinance 2004-ORD-6, are "in compliance" as defined in Chapter 163, Part II, Florida Statutes (2004). DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005. COPIES FURNISHED: Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Box 3007 St. Augustine, Florida 32085-3007 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Thaddeus Cohen, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue Whether Petitioners' application for a permit to construct a dwelling in Walton County, Florida, should be approved, pursuant to Chapter 161, Florida Statutes. In January of 1984, Respondent Department of Natural Resources provisionally denied Petitioners' application for a permit pursuant to Chapter 161, Florida Statutes, to construct a dwelling on their property in Walton County seaward of the existing coastal construction control line. Petitioners requested a hearing pursuant to Section 120.57(1), alleging that the denial of their application was unlawful on constitutional grounds and that it exceeded Respondent's discretionary powers under Chapter 161. The request for hearing was referred by Respondent to the Division of Administrative Hearings, Case No. 84-0508. Thereafter, Respondent's motion to strike those aspects of the petition alleging the unconstitutionality of the proposed denial was denied on the basis that Petitioners properly may preserve such matters for any appellate review. Thereafter, Petitioners sought to amend their petition to allege the invalidity of certain of Respondent's rules and, although such petition was granted, Petitioners were informed that any administrative determination of the invalidity of rules must be made the subject of a separate petition filed with the Director of the Division of Administrative Hearings. On June 11, 1984, Petitioners filed a petition with the Division challenging the validity of certain of Respondent's rules which were cited by Respondent as the basis for the proposed denial of Petitioners' application for a permit. The petition alleged that said rules were not appropriate to the ends specified in Section 161.053, Florida Statutes, that the effect of the rules was to establish a class of property owners who could be excluded from receiving permits to construct dwellings seaward of the coastal construction control line merely because their lots or parcels of land are larger than their neighbors or other adjacent owners, and that such rules are arbitrary and capricious as they relate to the petitioners because other property owners in Walton County had been permitted by Respondent to construct dwellings similar to hat proposed by the Petitioners beyond the coastal construction control line. DOAH Case No. 84-0508 and the case involving the rule challenge, DOAH Case No. 84-2053R, were consolidated for purposes of hearing. At the hearing, Petitioners presented the testimony of Brett Moore, a coastal engineer employed by the DNR Division of Beaches and Shores, Dennis Evans, an architect, and Petitioner Edward S. Coley. Petitioner submitted ten exhibits in evidence Respondent presented the testimony of Brett Moore, Deborah Flack, Director of the Division of Beaches and Shores, and Ralph Clark, Chief of the Bureau of Coastal Engineering and Regulation. Respondent submitted 21 exhibits in evidence. Posthearing submissions submitted by the parties in the form of Proposed Recommended Orders have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact In 1981 Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley, Petitioners' Exhibit 1, Respondent's Exhibit 1). At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20). On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984, that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area. . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised Petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16). The height of the dune line on Petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under dead covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to come extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8). Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21). Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10). Although conflicting evidence was received as to whether or not the existing structures east of petitioners' lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioners' Exhibit 1). Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2). The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4).
Findings Of Fact On December 12, 1988, Petitioners filed an application with Respondent for a permit to construct improvements to real property seaward of the coastal construction control line (CCCL). Petitioners' property is located at 2400 North Atlantic Boulevard, Fort Lauderdale, Florida. The parcel of land owned by Petitioners measures approximately 50' in width and 140' in depth and is located in a primarily residential area of beachfront property with high property values. On this parcel is a residence that is approximately 1600 square feet in size. The residence is constructed on reinforced concrete pilings. There are many other residential and commercial structures in this area which are also constructed on reinforced concrete pilings. The improvements to this property seaward of the CCCL that Petitioners desire to make and that Respondent finds objectionable is the construction of a poured monolithic reinforced concrete slab patio supported by twenty-one reinforced concrete pilings. The patio would be approximately 27' by 50' in size. On November 17, 1987, Respondent approved an application filed by a previous owner of this property for the construction of a patio to be constructed with concrete pavers. Petitioners arranged to have the previously approved permit transferred to their name. The project contemplated by the subject application employs a different method of construction than the one permitted in 1987 because Petitioners desire to have a patio that is more attractive and is easier to maintain. Petitioners are also concerned that concrete pavers will be hazardous during a storm since they may be subject to being swept along by high winds and water. Petitioners have valid reasons for preferring the method of construction reflected by the subject application based on aesthetic and maintenance considerations. However, Petitioners did not establish that the proposed method of construction was necessary as a safety measure. To the contrary, the greater weight of the evidence was that blocks the size of the pavers to be used for the construction that has been permitted would not be propelled by either hydrodynamic or aerodynamic forces during a major storm as Petitioners contend. Instead, these blocks would likely be undermined during a major storm and, because of their weight, fall as the beach is eroded. Respondent has regulatory authority over the property in question. Respondent's regulatory authority, which includes rule making authority, is conferred by statute. Respondent's responsibilities include the preservation of the beach-dune area within its jurisdiction. There is a relationship between the siting of a structure, in terms of its proximity to the shoreline, and the likelihood that the structure will have an impact on the beach and dune systems. The subject patio is to be located within the beach-dune system. The patio Petitioners propose to construct on concrete pilings would have more of an adverse impact on the beach-dune system than a patio constructed of concrete pavers. During a major storm, greater erosion on the site around the pilings will occur as a result of scour. Following a major storm, the ability of a dune to re-form will be more inhibited if the patio is supported by pilings. Considering the hundreds of thousands of pilings that are already in place along the beach, the effect of the twenty-one pilings proposed by Petitioners, whether considered individually or cumulatively, will be insignificant. A patio is usually considered by Respondent to be a "minor structure". "Minor structures" are non-habitable structures that are generally designed to be expendable during a major storm event. Dune walkovers, viewing platforms, and decks are examples of minor structures. A patio constructed of concrete pavers would be another example. The nature of their construction permits minor structures to be placed more closely to the shoreline than major structures. The patio as proposed Petitioners has been properly categorized by Respondent as being a "major structure" since it is designed to withstand a major storm event. Respondent has not to date permitted any major structure as far east of the CCCL in this area of Broward County as Petitioner's proposed project. All major structures constructed on pilings that are that far east of the CCCL were built before permits were required. Respondent is concerned that the granting of the subject permit will set a precedent that will require the issuance of permits for the construction of other major structures as far seaward of the CCCL as the Petitioners' proposed project, and that such construction would result in a cumulative adverse impact on the beach-dune system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a final order which denies the subject permit. DONE AND ENTERED this 20th day of September, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact in paragraphs 1-6 and 8-10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraph 8 are rejected as being argument. The proposed findings of fact in the first sentence of paragraph 11 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 11 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in the third sentence of paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 13 are rejected as being conclusions of law that are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are rejected as being unsubstantiated by the evidence. While Petitioners' application included as a proposed condition to the issuance of the permit, a covenant running with the land that would require the property owner to reconstruct the beach-dune system in the event of destruction by a major storm, the evidence did not establish, as Petitioners proposed, that the covenant would "... protect the interests of DNR and its long term end of protecting the dunes and beaches". The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-2, 5-6, 10-16, 24-27, 30-31, and 33 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraphs 3 and 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 21 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 7-9 and 28-29 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraphs 17-20, 23, and 32 are rejected as being unnecessary to the conclusions reached. These proposed findings are incorporated in part as conclusions of law. The proposed findings of fact in paragraph 22 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made. COPIES FURNISHED: Kenneth G. Stevens 412 Northeast Fourth Street Fort Lauderdale, Florida 33301 Dana M. Wiehle, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Room 1003 Tallahassee, Florida 32399-3000 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ken Plante General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Respondent Negele is entitled to a coastal construction control line permit to construct a single- family residence seaward of the coastal construction control line on Anna Maria Island.
Findings Of Fact Respondent Susan Negele (Applicant) owns Lot 10, Block 35, of the First Addition to Anna Maria Beach. Petitioner owns the legal interest in Lots 11 and 12 in the same block. Lot 11 is adjacent to, and landward of, Lot 10, and Lot 12 is adjacent to, and landward of, Lot 11. As platted in 1912, Lot 10 was separated from the Gulf by 360 feet, consisting, from landward to seaward, of two 50-foot lots, an unnamed 10-foot alley, a 100-foot lot, a 50-foot-wide road known as Gulf Boulevard, and about 100 feet of beach (although this feature does not contain a stated distance and the plat map does not indicate the location of the mean or seasonal high water line). According to the plat, running perpendicular to Gulf Boulevard (and the shoreline) are Elm Avenue and another unnamed 10-foot alley. Elm Avenue, which is 50-feet wide, runs along the northwest property line of Lot 10, and the unnamed alley runs along the southeast property line of Lot 10. Today, Lot 10 is the first platted feature landward of the seasonal high water line of the Gulf of Mexico. The record does not reveal whether the platted features seaward of Lot 10 were submerged at the time of the original subdivision or, if not, the process or processes that submerged these three lots, alley, road, and beach. Notwithstanding the clear evidence of the plat map, there is insufficient record evidence on which to base a finding that the mean or seasonal high water line has migrated landward a distance of 360 feet in 88 years. The record is contradictory on the issue of the stability of the beach seaward of Lot 10. On the one hand, as noted below, two rock groins of unknown age on either side of Lot 10 suggest an effort to deter offshore erosion, but the presence of these groins does not support an inference of a diminishing beach. The beach seaward of Lot 10 is included in the Comprehensive Beach Management Plan, which is reserved for beaches that are subject to erosion, but the record does not develop this point adequately. On the other hand, also as noted below, the anecdotal evidence suggests that the beach seaward of Lot 10 has been stable, at least for the past two or three decades. A recent survey, described below, suggests rapid growth in the beach and dune over the past 16 months. Even stronger evidence of the stability of the beach seaward of Lot 10 is its exclusion from the 30-year erosion projection. The record unfortunately does not disclose the proximity of this line to Lot 10, which, if in close proximity, would be important evidence of the condition of a beach and frontal dune system. In sum, the relative stability of the beach in the vicinity of Lot 10 is unclear. However, the exclusion of Lot 10 from the 30-year erosion projection and the anecdotal evidence of stability slightly outweigh the contrary evidence of instability. Applicant's family has owned Lot 10 for 50 years. Originally, they occupied two buildings on Lot 10 that had once served as Coast Guard barracks. At one point, Applicant's father barged the houses up the Manatee River to his father's farm in Palmetto. The record does not reveal whether another building was ever constructed on Lot 10. From an engineering standpoint, Lot 10 is a buildable lot. Applicant seeks the necessary permits to allow residential construction, so as to raise the market value of Lot 10 prior to its sale in order to liquidate this asset following the death of her surviving parent. By application filed with Respondent Department of Environmental Protection (DEP) on June 16, 1997, Applicant requested a coastal construction control line (CCCL) permit to construct a single-family residence on Lot 10. On June 30, 1999, DEP issued a Final Order tentatively granting the permit, but authorizing the construction of a structure with a footprint of only 352 square feet. Finding the allowable footprint insufficient, Applicant challenged the tentative agency action in DOAH Case No. 99-3913. Finding even a 352-square-foot footprint objectionable, Petitioner also challenged the tentative agency action in DOAH Case No. 99-3613. The Administrative Law Judge consolidated the two cases. Agency action in cases of this type is necessarily tentative because it is subject to administrative challenge, which, once resolved, allows final agency action to take place. However, the tentative agency action in this case is tentative in another important respect. DEP has approached the permitting decision in this case through a bifurcated process. DEP has issued a Final Order approving the proposed activity in concept, but has withheld issuing a Notice to Proceed, which is necessary before construction may commence. DEP has withheld issuing the Notice to Proceed until it receives more detailed plans for grading and revegetating the dune and it determines that these plans adequately address the protection of the beach and dune system. As noted below, the bifurcated permitting process defers DEP's examination of detailed grading and revegetation plans until after its issuance of the Final Order. DEP's expert testified that DEP provides a point of entry to challenge final orders, but not notices to proceed. (Tr., p. 174.) The expert testified that DEP would provide another point of entry concerning the proposed activity, but only if DEP were to issue another final order, such as for a "major modification" of the project (Tr., p. 174). But nothing in the record suggests that DEP will be issuing another final order following it's receipt of the more detailed grading and revegetation plans, whose approval by DEP is not subject to administrative challenge (absent successful judicial action to force DEP to provide another point of entry). (The record does not reveal whether DEP would provide Applicant with another point of entry if DEP were to disapprove the more detailed plans and decline to issue the Notice to Proceed.) The absence of an agency-recognized point of entry to challenge the detailed plans means that the analysis necessary to make the determinations required by law concerning the impacts of the proposed activities must be limited to the Permit, as it presently exists, and these determinations may not rely upon additional protections that may be supplied by more detailed plans that are not yet in existence. DEP and Applicant settled DOAH Case No. 99-3913 shortly prior to the final hearing. The settlement stipulation incorporates a new site plan showing the proposed residence moved landward so that it is seven feet landward of the vegetation line, but setback only three feet from the northeast property line (adjoining Lot 11) and five feet from the southeast property line (adjoining the alley). DEP approved the settlement on or about March 17, 2000. By letter dated March 22, 2000, DEP's counsel advised Applicant's counsel that DEP would announce at the final hearing that "it intends to issue the [Permit] . . . in accordance with the agreed location in [the revised site plan] and all other applicable conditions of the June 29, 1999, final order and June 30, 1999, letter from [DEP] to Charles Rose." The CCCL permit is dated June 29, 1999, and expires on June 29, 2002. References to the "Permit" shall include the subsequent modifications that resulted in the settlement of DOAH Case No. 99-3913 and the modifications described below. Petitioner objected to all evidence and any express or implied amendment of the pleadings at the final hearing to encompass subsequent Permit modifications, but the Administrative Law Judge overruled these objections. The Permit authorizes Respondent to conduct activities in a location that is seaward of the CCCL, but landward of the 30-year erosion projection and the existing line of construction established by major structures in the immediate area. According to the survey dated October 15, 1998, and architect's plans dated November 12, 1998, the residence to be constructed would be an elevated two-story frame structure, over a concrete pad, with a footprint of 952 square feet. The proposed structure would be similar in size and character to other residences in the area. A registered architect has signed and sealed all relevant construction plans. For the purpose of this recommended order, the seaward side of Lot 10 is its 110-foot side facing the southwest. This southwest property line runs from the west corner to the south corner of Lot 10. The north and east corners mark the 110-foot side of Lot 10 that abuts Lot 11; this is the northeast property line. As already noted, the two 50-foot sides of Lot 10 abut Elm Avenue and the unnamed 10-foot alley. As it exists in the ground, Elm Avenue is a strip of pavement 17 feet wide located in the middle of the 50-foot wide platted right-of-way. At present, the paved portion of Elm Avenue does not extend seaward of the midpoint of Lot 11. Applicant proposes the construction of a shell drive between the Elm Avenue right-of-way and the north corner of Lot 10, but this proposed activity is not the subject of the present case. The road right-of-way immediately adjacent to Lot 10 was occupied by a 60-foot wooden access walkway extending from the end of the road seaward, between the rock groin and the northwest line of Lot 10. However, this walkway was removed in the past couple of years. At present, the rock groin parallel to the northwest line of Lot 10 occupies the center of the road right-of-way, extending from Lot 10's midpoint, which is landward of the seasonal high water line, to a point seaward of mean sea level. Another rock groin runs from the unnamed alley along the southeast line of Lot 10, also from a point just landward of the seasonal high water line, and extends seaward of mean sea level. Running parallel to the two 50-foot lot lines of Lot 10 and perpendicular to the shoreline, these two rock groins may offer some protection from erosion by affecting sand traveling offshore, but do not otherwise directly offer any protection to the beach and dune system. As established by Applicant, landward from the Gulf, relevant natural features are located as follows. Mean sea level, which is 0.00 feet National Geodetic Vertical Datum (NGVD), is over 50 feet seaward of the west corner of Lot 10 and over 100 feet seaward of the south corner of Lot 10. Mean high water, which is 1.2 feet NGVD, is 35 feet seaward of the west corner of Lot 10 and about 75 feet seaward the south corner of Lot 10. Seasonal high water, which is 3.63 feet NGVD, is about 10 feet landward of the west corner of Lot 10 and about 25 feet seaward of the south corner of Lot 10. About 15-20 square feet of the relatively low west side of Lot 10 is submerged at seasonal high water. In two respects, Petitioner's survey, which was dated March 25, 2000, establishes that, at least for the past 16 months, the beach and dune system is flourishing, not eroding. First, mean high water is now farther from Lot 10 than it was in late 1998. In the intervening 16 months, the mean high water line has migrated to a point 77 feet seaward of the west corner of Lot 10--a distance of 37 feet in less than one and one- half years. During the same period, the mean high water line has migrated from 75 feet to 102 feet--a distance of 27 feet--seaward of the south corner of Lot 10. Second, the newer survey reveals that the seven-foot contour, which is shown on Applicant's survey as a small area at the midpoint of the southeast lot line, now extends across the southeastern two-thirds of the central portion of the lot. It is difficult to estimate from the surveys, but the area of at least seven-foot elevation appears to be six or seven times larger than it was 16 months ago, although a very small area of eight-foot elevation shown on Applicant's survey appears to have disappeared. Both surveys show that the six-foot contour line roughly bisects Lot 10 diagonally from the north to the south corners. Evidence of beach stability supplied from the March 2000 survey is reinforced by anecdotal testimony that the beach at this location has been stable for at least 20 years. In general, the beach at this location is not as dynamic as beaches found elsewhere in Florida. The CCCL is about 259 feet landward of the north corner of Lot 10 and about 222 feet landward of the east corner of Lot The CCCL is landward of Petitioner's Lots 11 and 12, as well as the next two 50-foot wide lots and nearly the entirety of Gulf Drive (Snapper Street on the plat) adjoining this block. According to Applicant's survey, the seaward toe of the frontal dune runs roughly along the seaward six-foot contour, perhaps 10 feet seaward of this contour at the west corner and a perhaps five feet landward of this contour at the south corner. The vegetation line runs 3-5 feet landward of the surveyed seaward toe of the dune. According to Applicant's survey, the frontal dune continues over the landward half of Lot 10, excluding only a 10-square-foot area at the east corner and extending well across the southeastern line of Lot 11, so as to capture about one-fifth of that lot. However, the surveys do not support an independent determination of the toes of the frontal dune or, thus, its width. DEP's expert testified that the landward toe of the dune is probably landward of the surveyed location. Also, the scale of the surveys did not facilitate analysis of subtle changes in slope, which would be indicative of the toes of a low frontal dune, such as is involved in this case. DEP's expert opined that a maximum elevation of seven or eight feet NGVD meant, at this general location, that the toes would probably be at the five- foot contours. If so, the seaward toe would be about 10-15 feet seaward of its surveyed location, and the landward toe would be at an undetermined location landward of Lot 10. Several dynamic processes underlie the beach and frontal dune system. Perhaps most obviously, plants rooted in a dune capture sand and, thus, add to the size of a dune. The absence of such plants facilitates a reduction in dune size. The stability of a dune is also affected by the slopes of its seaward and landward sides and the size of the grains of sand constituting the dune. When restoring a dune, adherence to historic slopes and elevations enhances the possibility of a successful dune restoration. Deviation from these slopes and elevations raises the risk of failure. The same is true regarding the size and characteristics of the grains of sand used to restore a dune. Another factor important in dune stability, as well as upland protection, is the continuity of the dune. A shorter dune, in terms of its length running parallel to the shoreline, is less stable and obviously offers less landward protection than a longer dune. As originally proposed, Respondent's home would occupy the east corner of Lot 10. The southwest side of the residence (facing the Gulf) would have been about one foot seaward of the vegetation line and only one to two feet landward of the surveyed seaward toe of the frontal dune. The landward side of the residence would have been 10 feet seaward of the northeast side of Lot 10. The proposed home would have been setback 10 feet from the northeast and southeast property lines. Shortly prior to the commencement of the hearing, Applicant modified the proposed plans, and DEP modified the Permit. These changes would relocate the proposed residence so that it was seven feet landward of the vegetation line, but setback only three feet from the northeast line and five feet from the southeast line. Despite its relocation landward from its original proposed location, the entire residence would occupy the frontal dune. More specifically, the residence would sit on the seaward side of the frontal dune. The Permit imposes a number of special conditions upon the construction of Respondent's residence. Consistent with DEP's bifurcation of the permitting process in this case, these special conditions prohibit the commencement of construction until Respondent submits plans and specifications "includ[ing] or reflect[ing] the following:" 1.1 A revised site plan including the distances relative to coastal construction control line to all the authorized structures with dimensions. The revised site plan shall depict the dwelling relocated to within 3 feet of the upland lot line and not exceeding a distance of 244 feet seaward. * * * 1.5 A revised grading plan depicting the restored dune extending across the entire parcel with a minimum crest elevation of +7.0 feet (NGVD). * * * The fill material shall be obtained 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. This fill material shall be free of construction debris, rocks, or other foreign matter. A sample of the sand shall be provided to the staff representative during the preconstruction conference. All permanent exterior lighting shall be installed and maintained as depicted in approved lighting schematic. No additional exterior lighting is authorized. CAVEAT: Due to potential adverse impacts to the beach and dune system that may result from additional development on the property, the shore-parallel and seaward extent of the permitted structures shall not be increased, nor will any additional major structures be permitted which would exceed the limits established by the permitted construction seaward of the coastal construction control line. The present proposed location of the residence is not landward of a line running 244 feet seaward of the CCCL. Roughly one-third of the proposed residence would be seaward of this line, which is set forth in the Permit. Addressing the obvious conflict between the restriction contained in Permit Paragraph 1.1 prohibiting any structure seaward of a point 244 feet seaward of the CCCL and its approval of the new location for the residence, DEP announced at the hearing a new Permit Paragraph 1.1, which reads: The revised site plan shall depict the dwelling relocated within three feet of the upland lot line and not exceeding a distance of 250 feet seaward of the CCCL on the southwest corner and 255 feet seaward of the CCCL on the northwest corner. (Tr., pp. 119-20.) The revised site plan clarifies that the reference to "three feet" means the three-foot setback on the northeast lot line. The references to the southwest and northwest corners are, respectively, to the southernmost corner, which, when used with respect to Lot 10 in this recommended order, is described as the south corner, and the westernmost corner, which, when used with respect to Lot 10 in this recommended order, is described as the west corner. (For ease of reference at the hearing, counsel, the witnesses, and Administrative Law Judge reoriented Lot 10 by referring to the southwest lot line as the west lot line and treating the Gulf, which is southwest of Lot 10, as though it were due west of Lot 10.) At present, Applicant has submitted no grading plans, which would address the seaward toe of the frontal dune after construction. The landward toe is not on Applicant's property, so Applicant will not be able to change the slope of the landward side of the dune by adding sand to the portion of this dune not contained within Lot 10. As identified to this point, the Permit's requirements for dune restoration are sketchy, reliant upon more detailed grading plans that are not yet in existence. Permit Paragraph 5 adequately specifies the grain size. However, the Permit fails to specify the slopes, leaving this crucial element of the dune to the more detailed grading plans. Under the Permit, Applicant would be required to supply a specified volume of sand to the site. This volume was calculated to be sufficient, based on Applicant's survey, to raise the portion of the dune northwest of the seven-foot contour to an elevation of seven feet NGVD. However, if Petitioner's survey is correct, much less sand will be needed to raise the elevation to seven feet NGVD, so the "excess" sand will widen the dune. This recommended order has credited both surveys, so Applicant's survey provides the relevant details except for the more recent information supplied by Petitioner's survey concerning the locations of the mean high water line and the seven-foot contour. The widening of the dune authorized by the Final Order necessarily changes the dune's profile by extending the seaward toe closer to the shoreline and probably changes the slope of the seaward toe of the dune. Additionally, raising the elevation of the dune in the northeastern portion of Lot 10 will dramatically change its landward profile, given the fact that Applicant cannot add sand to the large portion of the dune landward of Lot 10. The effects of these alterations of the dune profile are entirely unknown to Applicant and DEP. Failing to perform the preliminary tasks of locating the existing dimensions of the dune--in terms of its width (perpendicular to the shoreline) and its length (parallel to the shoreline)-- Applicant and DEP lacked the baseline data upon which they could then analyze the construction and post-construction effects of placing Applicant's residence atop this dune. The present stability of the beach and dune system at Lot 10 does not dispense with the necessity of such analysis in making the determinations required by the relevant law. Additionally, the Permit fails to address the revegetation of the dune, again leaving this issue to more detailed plans not yet in existence. Specifically, Applicant has submitted no plans establishing a replanting scheme with specified species at specified distances, criteria by which to measure the success of the revegetation process (e.g., X percent coverage after one year), and a monitoring and enforcement program. Lastly, although the City of Anna Maria issued a letter approving of the proposed plans when Applicant proposed ten-foot setbacks, the City of Anna Maria has not had a chance to comment upon the proposal of three- and five-foot setbacks. Land use regulations of the City of Anna Maria require greater setbacks than these. As distinguished from its treatment of the dune profile and vegetation, the Permit supplies ample assurances that the proposed activities would be conducted in such a way as not to disturb nesting sea turtles, which, according to the record, infrequently occupy this specific location. Permit provisions, such as those scheduling construction and governing construction and post-construction lighting, adequately address the relatively simple task of protecting this lightly used nesting habitat.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application for a coastal construction control line permit to construct a residence at the location indicated at the hearing. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Adam Mohammadbhoy Harllee Porges Post Office Box 9320 Bradenton, Florida 34205 S.W. Moore Brigham Moore 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237 Francine M. Ffolkes Senior Assistant General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-9314
The Issue The issue in this case is whether a beach house petitioners plan to build in south Walton County was already under construction, within the meaning of Section 161.053(7), Florida Statutes (1981) and Rule 16B-33.04(1), Florida Administrative Code, at the time the current coastal construction control line took effect there.
Findings Of Fact In October of 1982, the petitioners acquired a lot in south Walton County, on the north shore of the Gulf of Mexico. Even before the purchase, Mr. Wiese had been in touch with respondent's personnel, who apprised him of the imminence of the adoption of the new (now current) coastal construction control line, at that time already proposed for Walton County. The former coastal construction control line was considerably seaward of the current line, which became effective on December 29, 1982. Petitioners, who have built some seven houses, drew plans for a house to be built on their Walton County lot one foot landward of the old coastal construction control line. They applied for and obtained the necessary county building permit. They contracted for grading on site, which took place on November 27, 1982. In the course of this work, the landward face of the sand dune was disturbed and petitioners realized that, if they were to build so close to the water, a wall or something like a wall would have to be erected and buttressed to keep the sand dune from migrating under or into their beach house. They determined that the plans were inadequate as drawn. Mr. Wiese nevertheless arranged for one Al Christopher to bring two poles to the site and place one of them upright in the sand. When asked at hearing how long the two poles Mr. Christopher delivered to the site were, Mr. Wiese said he did not know. After Mr. Christopher began, petitioners did not ask him to desist either with bringing pilings to the site or with placing them in the ground. Mr. Christopher evidently did what he was asked to do, before he ever began working with the poles. Before the single pile was placed, batter boards were used to locate the perimeters planned for the building. Batter boards are temporary markers which are removed once the foundation is in place. In constructing piling foundations for beach houses along the gulf coast, in this part of Florida if not elsewhere, the ordinary sequence is to bring all foundation piles to the site before bringing the equipment necessary to install all the piles at once. This makes for efficient use of expensive machinery, and is virtually always done. One of the Wieses' neighbors, fearing that the new coastal construction control line would take effect last fall arranged for a single pile to be driven, but his project was well underway by the time the new coastal construction control line did in fact take effect. As late as March of this year, Mr. Wiese checked with a Texas supplier to see if foundation piles would be available for the project. The plans drawn before the grading of November 27, 1982, called for a foundation of 37 piles, each of which was to be 45 feet long. No horizontal members nor bracing of any kind was contemplated for the foundation. The foundation piles were to be put so close together that it would have been impractical to bring heavy equipment in to do the grading after they were in place. The idea in leveling the ground was to prepare it so a concrete slab could be poured to serve as a parking surface underneath the beach house. Under both the plans originally drawn and the plans under which petitioners now hope to proceed the parking surface itself is not expected to have a structural function, Mr. Wiese's testimony to the contrary notwithstanding. Once petitioners were persuaded that the project needed "reengineering," they diligently sought out expert assistance and new foundation plans were eventually drawn to their satisfaction. Petitioners' efforts took place on a regular, if not a daily basis, but consisted in large part of finding the right people for the "reengineering" job. The plans which petitioners propose to use were stamped with the final engineer's seal on March 3, 1983, more than two months after the current coastal construction control line took effect.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioners' beach house project grandfathered status, and apply the coastal construction control line adopted for Walton County on December 29, 1982, in any agency action regarding the project. DONE and ENTERED this 22nd day of August, 1983, Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August 1983. COPIES FURNISHED: Joseph C. Jacobs, Esquire John C. Pelham, Esquire and Melissa Fletcher Allaman, Esquire ERVIN, VARN, ODOM & KITCHEN Post Office Box 1770 Tallahassee, Florida 32322-1170 Deborah A. Getzoff, Esquire Suite 1003 Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Executive Suite 3900 Commonwealth Building Tallahassee, Florida 32303
The Issue At issue in this proceeding is what costs, if any, are recoverable by petitioner as a consequence of its successful prosecution of an appeal from the agency's final order heretofore rendered in the above-styled matter.
Findings Of Fact Background On January 14, 1988, respondent, Key Biscayne Limited partnership, formerly known as Biscayne Beach Hotel Association, Ltd. (the "Hotel") , filed an application with Respondent, Department of Natural Resources (DNR), for a coastal construction control line (CCCL) permit authorizing it to conduct construction activities seaward of the Dade County CCCL on Key Biscayne, Florida. As proposed, the Hotel, which currently owns the Sonesta Beach Hotel on Key Biscayne, sought authorization to construct a nine-story 124-unit habitable addition and a one-story non habitable addition, with understructure parking, to its existing facility. Incident to such construction, the Hotel also sought authorization to construct a deck and jacuzz-type hot tub south of the addition, and authorization to excavate approximately 1,400 cubic yards of fill for the pile foundation and caps, and to deposit such fill seaward of the CCCL. Excavation for the foundation would extend a maximum of 177 feet seaward of the CCCL and placement of the excavated material would extend a maximum of 300 feet seaward of the CCCL. On August 11, 1988, DNR issued a notice of intent to approve the Hotel's application and to is sue a CCCL permit subject to the following special conditions: The issuance of the permit placard shall be withheld pending staff receipt and approval of: Two sets of specifications and final certified construction plans accurately dimensioned with elevation referenced to NGVD. Details of the foundation of the 9-story and single- story addition, pile/pile cap/column connections, column/floor slab and roof slab connections, cantilevered balconies, garage floor slab, breakaway walls, storm drainage and domestic waste disposal, and fences shall be included in the plans. Two sets of certified dimensioned site plans showing the location of the control line, existing sea grape trees, the placement of excavated material seaward of the control line, and species of salt-resistant vegetation. The site plans shall be subject to review and acceptance by the Bureau staff. Evidence that written notice has been recorded in the deed covenants and restrictions for the subject property that: The construction of any future rigid coastal protection structures on the property shall be prohibited. The deed covenants and restrictions shall be recorded in the public records of Dade County. Such deed covenants and restrictions shall be enforceable and shall not be altered unless approved by the Department of Natural Resources. The use of gravel or other similar materials or structures with the potential for becoming aerodynamically propelled missiles shall not be included in the construction of the roof. Salt-resistant vegetation such as sea oats, sea grape, panic grass, salt jointgrass, and/or other approved salt- resistant species shall be planted on the fill area. In addition, the permittee shall irrigate and apply fertilizer as appropriate for the particular species planted until the vegetation is established. A 75 percent survival rate of the vegetations shall be ensured and replanting shall be conducted until a 75 percent overall survival rate is attained and until any sizeable barren portions of the area are covered. The excavated fill material to be placed on the beach shall consist of material compatible in grain size and coloration as the native beach sand and shall come from a source located landward of the coastal construction control line. The main structure of the addition shall not extend further seaward than the projected line of the existing retaining wall located seaward of the existing swimming pool. Petitioner, Key Biscayne Council (the "Council"), filed a timely protest of DNR's action. Essentially, the Council contended that the location of the proposed construction would be seaward of the 30-year seasonal high-water line and, therefore, prohibited by Section 161.053(6)(b), Florida Statues; that the proposed construction would adversely impact the beach-dune system and adjacent properties; that construction of similar projects along the coast would have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline; and that the proposed construction failed to comply with the setback requirements or zoning or building codes of Dade County. The Key Biscayne Council In Its petition for formal hearing, the Council alleged that it was a not-for-profit Florida corporation which had, as one of its purposes, the preservation of the environment of Key Biscayne, including its beaches. The proof at hearing failed, however, to demonstrate that the Council enjoyed corporate status but, rather, demonstrated that it was an association formed in November 1987 to give the residents of Key Biscayne a more effective voice on matters of local interest, including the preservation of the environment of Key Biscayne. The Council is governed by nine individuals who are residents of Key Biscayne. These individuals are elected to their positions by the resident members of the association, who are also registered voters in Dade County. 4/ The Council meets at least once each month, and its meetings are open to the public. The agenda for each meeting is published in the local Key Biscayne newspaper, The Islander, the week before each meeting. Of particular interest to the Council is the preservation and protection of the beaches of Key Biscayne which form an important part of that community's and the Council members' lifestyle. To date, the Council has been a motivating force behind the enactment of Dade County Ordinance No. 89-23 discussed infra, which established the CCCL as the mandatory setback line for new construction on Key Biscayne, as well as efforts to fund a cleanup of the beaches, to establish a vegetation dune system, and to protect the sea turtle population. Here, by unanimous vote of the Council, it elected to contest the propriety of DNR's proposal to approve the Hotel's application to construct the proposed additions seaward of the CCCL. Key Biscayne and the surrounding topography Key Biscayne is the southernmost barrier island in what is now a chain of barrier islands extending southward from Miami Beach. Historically, Miami Beach was connected to some extent with Virginia Key, which lies to the north across Bear's Cut from Key Biscayne. In 1835, however, a hurricane struck the area, breached whatever connection existed between Miami Beach and Virginia Key, and formed what is now known as Norris Cut. The topography of the area was further altered in 1905 when construction of Government Cut, the navigational channel for the Port of Miami, was begun. Construction of that cut severed the southern tip from Miami Beach, and formed what is now known as Fisher Island. By 1927, a jetty had been constructed on the north side of Government Cut that created an effective barrier to any along shore sediment transport to the south. Over time the channel in Government Cut was deepened and jetties on its north and south sides extended. Today, the channel is 42 feet deep and extends two miles into the ocean. The north jetty extends 3,000 feet into the ocean, and the south jetty extends 2,750 feet into the ocean. Key Biscayne, which lies to the south of Government Cut and the other islands, is a sand island, roughly "drum-stick" in shape, formed on a limestone base, with elevations ranging from 5 1/2 to 6 1/2 feet. The northern and southern portions of its eastern shore are dominated by Crandon Park and Cape Florida State park, respectively, with development concentrated in the central portion of the island. It is along this central part of the island that the Sonesta Beach Hotel exists, and where the proposed construction is to occur. Immediately north of the existing hotel lies the Silver Sands Hotel and Sand Dollar Restaurant. To the south of the hotel lies the Sheraton Beach Hotel and Beach Club and, further south, the Key Biscayne Hotel and Villas. 5/ Although Key Biscayne is generally subject to mild weather conditions and a low energy environment, it has been subjected to erosion along its eastern shore, with the more severe erosion occurring along the central portion of its shoreline. Seaward of the northern and southern portions of its eastern shore, sand shoals exist which tend to dampen the force of wave energy that would otherwise be exerted against that stretch of coast line. The center of the island is not, however, accorded similar protection and the consequent concentration of wave energy causes sand to be transported from the center of the island to its outer ends. As a result, the central portion of the island, where the subject development is proposed, has historically eroded at a faster rate than the north or south ends of the island. In September 1984, as a consequence of the severe erosion suffered to the eastern shore of Key Biscayne, Dade County was authorized to place over 411,000 cubic yards of sand along approximately 10,000 feet of shoreline on Key Biscayne, and to construct a terminal structure at the south end of the island. The beach was restored by hydraulically pumping sand onto the beach from an offshore dredge and then redistributing the sand with a bulldozer. The resulting beach is characterized as "plan form," and is expected to assume a natural profile over time by responding to the natural forces of wind and waves. The fill pipes which were used to pump sand onto the beach were removed from the area of the Sonesta Beach Hotel on July 3, 1987, and the reprofiling or redistribution of sand in that area was completed around July 20, 1987. On September 26, 1987, the renourishment project was certified complete. The 30-year erosion projection Section 161.053(6)(b) Florida Statutes, provides that DNR may not issue a permit for construction seaward of the CCCL, except for certain specific structures not pertinent to this case, if the structure is "proposed for a location which, based on the department's projections of erosion in the area, will be seaward of the seasonal high-water line within 30 years after the date of application for such permit." The "seasonal high-water line" is a creature of statute, and is defined by Section 161.053(6)(a), Florida Statues, as "the line formed by the intersection of the rising shore and the elevation of 150 percent of the local mean tidal range above local mean high-water." Here, the seasonal high-water line, which is established as an elevation, calculates to approximately 5.4 feet NGVD, and according to the survey dated August 1, 1987, which was submitted with the Hotel's application, currently derives a line that is approximately 375 feet seaward of the proposed construction. To establish the 30-year erosion projection, DNR proposes to horizontally shift the profile which was depicted on such survey in a landward direction a distance equal to the expected erosion rate over a 30-year period. Ordinarily, DNR would calculate a 30-year erosion projection based on historic erosion rates, referred to as "horizontal change rates" in Rule 16B- 33.024, Florida Administrative Code, by reviewing two or more historical surveys taken over a period of time, and measuring the amount of shoreline recession that had occurred during that period. From that figure, an erosion rate would be derived by dividing the number of years which elapsed over the period of record chosen into the amount of shoreline recession that occurred during that period. The result would be the historic erosion rate which, when multiplied by 30, would establish the location of the 30-year seasonal high-water line. However, where, as here, the beach as been renourished, consideration of the effect and performance of such project must also be considered in making the 30- year erosion projection. Rule 16B-33.024(3)(e), Florida Administrative Code. Accordingly, to determine the expected location of the seasonal high-water line in 30 years in this case, it is necessary to establish a historical shoreline change rate and to evaluate the effect and performance of the beach renourishment project. To establish an appropriate historical erosion rate for the subject site, consideration must be given to both the tidal datum relied upon to obtain the rates, and the time period selected as the period of record for analysis of historic shoreline change rates. With regard to tidal datums, the Department's rule provides that horizontal shoreline change rate values may be obtained from one of several available tidal datums, including mean high-water, mean sea level, and mean low-water. Rule 16B-33.024(3)(a), Florida Administrative Code. However, the preferred and more reliable tidal datum to use in assessing historic erosion rates is the line of mean high-water. The time period used in calculating the historic shoreline change rate is required by DNR's rule to extend from the date of the field work for the applicant's survey, which was submitted as part of the application, to the earliest date for which reliable information is available. Rule 16R- 33.024(3)(b) Florida Administrative Code. The historic shoreline change rate analysis should generally include data from points 3,000 feet on either side of the proposed construction, with the change rate for each point averaged for the time period chosen. Rule 16R-33.024(3)(g), Florida Administrative Code. In the event that coastal or shoreline protection structures exist which have influenced the shoreline data for any of the reference points, such influence must be addressed, and if such influence renders the data unreliable the rate data obtained from that point during the period of influence must be rejected. 6/ Rule 16B-33.024(3)(c), Florida Administrative Code. Historic shoreline change rates for the subject project are properly determined by reference to DNR reference monuments R-101 to R-106, located on Key Biscayne. Monument R-104 is the closest monument to the project site, lying approximately 180 to 200 feet south of the site, with the project lying between monuments R-103 and R-104. To facilitate an accurate determination of historic shoreline change rates, DNR has created the Beaches and Shores Growth Management Data Base (DNR Data Base), which consists of data from primary source maps from various governmental agencies, including the United States Coastal and Geodetic Survey, National Ocean Survey, and United States Geologic Survey. These maps have been digitized relative to the DNR monuments, which are located along- the coast at- approximately 1,000-foot intervals, and the resulting data is used to assess shoreline changes over time. Inherent in these shoreline changes are the effects of natural forces on the shoreline, such as wind, wave height, and temperature. Pertinent to this case, the surveys available in the DNR Data Base prior to 1989 were those of 1851, 1919, 1927, 1935, 1945, and 1962. In or about February 1989, DNR contracted with Florida State University to redigitize maps of Key Biscayne. As a consequence, the accuracy of existing data was enhanced and a new survey, the 1913 United States Coastal and Geodetic Survey Map, was added to the DNR Data Base. The addition of the 1913 survey to the DNR Data Base is significant to this case, since the proof demonstrates that the data derived from the 1919 survey is unreliable and should be disregarded. Accordingly, the surveys that may be reasonably relied on in this case are those of 1851, 1913, 1927, 1935, 1945, and 1962. In selecting the appropriate period to determine the historic change rate in this case, several factors should be considered. First, in 1926 a hurricane, which came very close to Key Biscayne, resulted in severe damage to the beach. This storm was reported as at least a 100-year storm event, and is the major storm of record for the area. The 1926 storm, as a naturally occurring event, should be taken into consideration in arriving at an historic erosion rate, but should not be allowed to bias the data. Accordingly, any survey immediately preceding it should not ordinarily be used as a starting point for determining an historic erosion rate, because it would overestimate the historic change rate. Similarly, the immediate post-storm survey of 1927 should not be used as the starting point for determining the historic change rate, since this data would overestimate the effects of the post-storm rebound (accretion), but ignore the erosion caused by the 1926 storm and artificially lower the erosion rate. Finally, the 1962 survey should be the most recent survey used to establish an historic erosion rate, since it marks the end of the predevelopment phase of the study. In the mid-1960's, shoreline structures (seawalls) were erected along portions of the coast, and a beach renourishment project was carried out at Crandon Park in 1969 resulting in filling at DNR Monument R-101. These events render post 1962 data unreliable in assessing an historic change rate. Here, the proof demonstrates that the appropriate time period for analyzing the historic change rate is 1851 to 1962. Based on an analysis of the historic change data for such period, the appropriate historic erosion rate for the project site is -2.3 feet per year. In reaching the foregoing conclusion, the Council's contention that pre-1919 survey data should be rejected in deriving an historic change rate because the construction of Government Cut had, by 1927, interrupted a littoral supply of sand in the neighborhood of 200,000 to 400,000 cubic yards of sand to the south has not been overlooked. However, the more credible proof demonstrates that the littoral transport of sand along this area of Florida's coast is approximately 10,000 cubic yards per year, and that little of that sand ever reached Key Biscayne. Accordingly, the construction of Government Cut had little, if any, impact on Key Biscayne. Also, notable to this conclusion is the fact that an analysis of the historic change rate from 1913 to 1962 calculates an historic erosion rate of -2.5 feet per year, an insignificant difference from that calculated for the period of 1851 to 1962, and the existence of an erosional trend at the central portion of Key Biscayne prior to the construction of Government Cut. Following the establishment of an historic erosion rate, the next step in assessing the expected location of the seasonal high-water line in 30 years in situations where, as here, the beach has been renourished, is a consideration of the effect and performance of such renourishment project. The importance of this analysis cannot be gainsaid, since a beach nourishment project may behave differently than the natural beach, as the nourishment may erode faster or slower than the natural beach or it may accrete. Factors which may cause a beach nourishment project to behave differently than the natural beach include project design, such as the length and width of the project, the seaward slope of the fill material, and the nature of the fill material; and, natural and manmade factors, such as offshore shoals, jetties, and breakwaters. The length and width of a project is very significant in terms of how long the project will remain in place. A project which is short in length will have a tendency to erode at a faster rate than a long project or the natural beach. This loss, referred to as "end losses" or "spreading-out losses," is not necessarily a loss of material from the system, but rather a redistribution of the sediment to the outer edges of the nourishment project. These spreading-out losses are caused by the project's exposure to waves that occur from offshore. As a nourishment project is exposed to waves, it reacts to the force of those waves by spreading out in an alongshore direction, resulting in a reduction in the overall width of the project. A longer project, such as the nourishment project in the existent case, will erode from the ends more slowly than a small project and, consequently, maintain its width and life for a greater period of time. The seaward slope of the nourished beach will also affect the project's performance. When a nourishment project is constructed, the seaward slope of the beach may initially be steeper than the slope which existed prior to nourishment, and may be irregular in shape compared to the natural shoreline. During the slope adjustment process, gravity and waves act on the shoreline to create a more natural slope and shape. During this process, the upland portion of the beach, as well as any irregularities in the shoreline, will experience shoreline recession, with the material being redistributed along shore and offshore. This adjustment process, and the effects it will have on the project's performance, may extend over several years after nourishment is completed. The grain size of the material used in the nourishment project can also affect the performance of the project. If the sediments used to construct the nourishment project are essentially of the same grain size and quality of the sediments which existed on the natural beach, then the nourished beach can be expected to perform, after initial slope adjustment, in much the same manner as the natural beach.. Natural features or manmade structures which may affect the performance of the nourishment project include the shoreline and offshore characteristics of the area that can increase or slow the rate at which the material may otherwise erode, or a groin or natural feature that would tend to confine the project and prevent or minimize spreading-out losses. Here, the nourishment project is a long project, approximately 10,000 feet in length. This factor will contribute favorably to the project's longevity. The material used in the nourishment project is very similar to that which existed on the natural beach. Therefore, after initial slope adjustment, the nourished beach should perform in a manner similar to the natural beach. Finally, the portion of the beach fronting the hotel is bordered to the north and south by areas which are historically stable or accreting. This factor should stabilize the ends of the project, and reduce the alongshore spread which would otherwise occur. In sum, after the slope and shoreline have adjusted to a natural profile and shape, the nourishment project should perform in a manner very similar to the pre-nourishment beach. While the nourishment project should ultimately perform similar to the pre-nourished beach, little time has elapsed since completion of the project for slope and shoreline adjustment or to demonstrate stabilization. Here, the nourished beach was profiled by man (bulldozers), with the reprofiling in she area of the hotel being completed around July 20, 1987. The Hotel submitted its application for the subject permit on January 14, 1988, together with a survey of the area dated August 1, 1987. Based on this survey, DNR proposes to establish the 30-year seasonal high-water line by horizontally shifting the profile depicted on the survey in a landward direction. To predict the performance of the beach nourishment over time, the Hotel offered the results of an analytical computer model run by Dr. Robert Dean, an expert in coastal and oceanographic engineering and coastal processes. That model predicts spreading-out losses," and considers site specific factors that will affect the nourishment project, including pre-existing shoreline conditions, size and quality of the beach fill, volume, length of the project, conditions at the end of the fill, and the affect of wave forces on the coast. The wave data relied upon by Dr. Dean to drive his model was derived from a wave gauge located just north of Government Cut. The wave characteristics at Key Biscayne are, however, dissimilar to those experienced off Miami Beach due to the wave damping characteristics of the offshore area of Key Biscayne. While dissimilar, Dr. Dean opined that the data from Miami Beach could be reliably used as a conservative estimate of the force of waves at Key Biscayne, and that his model would, thereby, present a worst case scenario or prediction of spreading-out loss of sediment on the nourished beach. Based on such analysis, Dr. Dean predicted that shoreline recession on the nourished beach, attributable to spreading-out losses, would amount to 28 feet over the next 30 years, most of which would occur in the early years of the project. When combined with the historic change rate of -2.3 feet per year for 30 years, Dr. Dean calculates that 97 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 102 feet landward of the seasonal high-water line. DNR also made an erosion projection to predict the performance of the beach nourishment over time. In its analysis, DNR relied on monitoring data Dade County had gathered regarding the performance of the project. Such data measured, at various monuments, the amount of accretion or erosion that had occurred within the first 6 months of the project, and the amount of accretion or erosion that had occurred over the next 12 months of the project. The data was not, however, complete for all monuments within 3,000 feet of the hotel, and was otherwise unpersuasive for reasons hereinafter discussed. In performing its analysis, DNR chose to focus on one monument, PL-5- DC, which is located 200 feet north of the hotel. The data at that monument showed that within the first six months the mean high-water line (MHWL) had receded 22 feet, and that over the next 12 months it had receded an additional 10 feet. Assuming a constant rate of erosion based on those two time points, DNR concluded that initial slope adjustment or stabilization would occur within four years, and that shoreline recession on the nourished beach over that 4-year period would amount to -41.6 feet. When combined with an historic change rate of -2.3 feet for the next 26 years, DNR's methodology calculates that 101.4 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 99 feet landward of the seasonal high-water line. 7/ While Dr. Dean's model and DNR's analysis of Dade County data may yield similar results, neither methodology is, under the circumstances of this case, persuasive proof of how the nourishment project will perform or where the 30-year seasonal high-water line will be located. Here, the proof demonstrates that Key Biscayne enjoys a low-energy environment, and that the only force of significance ordinarily exerted along its coast occurs during the winter months when northeasters impact its shoreline. It is this wave energy that would, under normal circumstances, mold or adjust the seaward slope and shoreline of the nourishment project until it reached a more natural slope and shoreline, and after which the rate of erosion would be consistent with the historic change rate. However, since completion of the nourishment project, Key Biscayne has enjoyed unusually mild weather conditions, and the usual winter storms have not occurred. Consequently, the nourishment project has yet to be subjected to the forces of nature which can be reasonably expected to ultimately mold or adjust its seaward slope and shoreline. DNR's conclusion that the nourishment project will reach stability within four years, based on its analysis of the meager data provided by Dade County, is simply unpersuasive. That data, which appears on page 6 of DNR's exhibit 5, showed that at monument PL-5-DC the MHWL had receded 22 feet in the first six months of project existence and 10 feet over the course of the next 12 months. Based solely on these two measurements, DNR calculated a straight line decreasing rate of erosion to conclude that within four years the project would erode at the historic change rate. DNR's methodology and assumption, based on only two points of measure within the first 18 months of project existence, is not credible or persuasive proof of how the nourishment project will perform, and is rendered even less persuasive In view of the mild weather that affected Key Biscayne during such time period. Dr. Dean's opinion, based on his analytical computer model, which assessed shoreline recession on the nourished beach attributable to spreading- out losses, is likewise unpersuasive proof of how the nourishment project will perform. While Dr. Dean considered spreading-out losses and the historic change rate in reaching his conclusion, he failed to address offshore losses of sediment that will occur as the seaward slope of the project adjusts to a more natural profile. Here, the proof demonstrates that the seaward slope was constructed much more steeply than the natural slope, and that in the first 18 months of project existence significant quantities of fill have been lost offshore. At monument PL-5-DC the slope remains steep. Notably, while Dr. Dean calculated a spreading-out loss for the life of the project of 28 feet under what he termed a worse case scenario of wave height, the MHWL at the nourishment project has already receded 32 feet, under mild weather conditions, in the first 18 months of existence. Compared with Dr. Dean's and DNR's conclusions, the Army Corps of Engineers (Corps), which designed the nourishment project, calculated a loss rate of approximately 22,000 cubic yards of fill each year. Should the project perform consistent with the Corps' estimate of project life, it will have receded to the Dade County erosion control line within 10 years, and over the course of the next 20 years to a point such that the proposed addition would lie seaward of the 30-year seasonal high-water line. Under the circumstances of this case, a calculation of the probable location of the 30-year seasonable high-water line, based on the Corps' estimate of the performance of the nourishment project, is more compelling than that of Dr. Dean or DNR. 8/ Impact on the beach and dune system Where, as here, construction is proposed seaward of the CCCL, Section 161.053(5)(a)3, Florida Statutes, requires DNR to consider the potential impacts which the location of the proposed structures or activities may have on the beach-dune system. That system includes the beach, the dunes, and the overwash areas, which are interrelated by the sediment erosion and accretion process. 9/ DNR's analysis of potential impacts to the beach-dune system includes both short-term and long-term impacts of proposed construction. Short-term impacts are those which may arise during construction of a project and are often a concern in sensitive areas, such as those areas characterized by natural dune features and dune-stabilizing vegetation. Long-term impacts of a project may include increased flooding caused by a lowering of dunes and increased erosion caused by a lowering of dunes or by a net loss of sand from the beach-dune system. Impact to the beach-dune system can also be caused by increased pedestrian traffic associated with the construction of a major habitable structure. Pedestrian-caused impacts are, however, a potential concern only in areas where there are dune features and stabilizing vegetation which could be destroyed. In the absence, of these dune features, pedestrian traffic has no significant impact to the beach-dune system. Here, the site of the proposed construction does not have any prominent dune features or stabilizing dune features or stabilizing dune vegetation. In fact, the site is the present location of an asphalt parking lot, which extends 40 feet seaward of the footprint of the proposed construction. Construction of the project will not result in any net excavation of material. Since dunes will not be lowered and there will be no net loss of material, there will be no increased flooding or erosion caused by the project. Under such circumstances, the proof demonstrates that there will be no long-term or short-term impacts to the beach-dune system occasioned by the project. Adverse cumulative impact on the beach-dune system Section 161.053(5)(a)3, Florida Statutes, also requires DNR to assess the potential cumulative impacts to the beach-dune system that may be caused by construction seaward of the CCCL. Here, the proof demonstrates that the proposed project, either singularly or in combination with other existing or similar projects, would not have any adverse impact to the beach-dune system. Impact on adjacent property Construction activities proposed for a location seaward of the CCCL are also analyzed by DNR to assess their impact on adjacent properties. Rule 16B-33.007(2), Florida Administrative Code. Such analysis includes a determination of whether construction activities will be confined on-site; whether a lowering of dunes will occur such that increased flooding on adjacent property could occur; whether elevations on the proposed construction site will be lowered such that flooding of adjacent property could occur; and whether proposed construction, in the event of a major storm event, would potentially increase erosion on adjacent property. Here, the proof demonstrates that construction activities will be confined on site, there will be no lowering of the dunes or elevations, and that there will be no net excavation of materials such that any increased risk of flooding or erosion could occur to either the project site or to adjacent properties. Interference with public beach access One purpose of CCCL permitting is to preserve public beach access. Sections 161.053(1) and (5)(e), Florida Statutes. "Public access" is defined as "the public's right to laterally traverse the sandy beaches of this state where such access exists on or after July 1, 1987." Section 161.021(1), Florida Statutes. The public presently does not have east-west access to the beach at the Sonesta Beach Hotel, and is not entitled to such access by law. The Hotel does not propose to hinder existing north-south (shore parallel/lateral) beach access, and the proposed project would not impede such access until the seasonal high-water line receded to the project. 10/ While the project might limit lateral access at times once the seasonal high-water line recedes, such impact would be de minimis in the instant case since construction of the project would not be seaward of existing structures on the Hotel's property. Compliance with local zoning requirements In order for a permit application to be deemed complete, an applicant must provide DNR with written evidence, provided by the appropriate local governmental-agency having jurisdiction over the activity, that the proposed development does not contravene local setback requirements or zoning or building codes. Rule 16B-33.008(2)(c), Florida Administrative Code. By letter dated February 10, 1988, the Hotel submitted to DNR a letter from Metropolitan Dade County's Department of Building and Zoning which indicated that the site plan for the proposed project was consistent with existent regulations. On April 21, 1988, DNR deemed the Hotel's application complete. While not contesting the consistency of the proposed project with local regulations at the time the Hotel's application was deemed complete, the Council contends that subsequent events have rendered its proposal inconsistent with such regulations. In this regard, the proof demonstrates that the Hotel received site plan approval for the proposed addition from Dade County in November 1988, but that its application for a bull ding permit was denied and returned to the Hotel for further action. To date the Hotel has not sought to further process such application with the County. On April 4, 1989, Dade County enacted Ordinance No. 89-23, effective April 14, 1989, relating to construction seaward of the CCCL on Key Biscayne. Pertinent to this case, the ordinance prohibits the new construction of major habitual structures and severely restricts the construction of nonhabitable structures seaward of the CCCL, absent a variance. At hearing, no proof was offered that any portion of the proposed project would qualify for a variance, or that the nonhabitable portion of the project complied with the requirements of the new ordinance. 11/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the Hotel's application to construct and excavate seaward of the CCCL. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of September 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1989.
