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.
Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
Findings Of Fact In 1981, Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley Petitioners' Exhibit 1, Respondent's Exhibit 1) At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December, 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20) On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984 that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area . . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16) The height of the dune line on petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under deed covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to some extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8) Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21) Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10) Although conflicting evidence was received as to whether or not the existing structures east of Petitioners lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioner's Exhibit 1) Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2) The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4.)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By application dated March 9, 1981, and received by the DNR's Bureau of Beaches and Shores on March 13, 1981, respondent sought a permit to construct five single-family dwellings on five 64-foot-wide parcels of land located seaward of the established coastal construction control line (CCCL) on Grayton Beach. Attached to the application were site plans, an affidavit of ownership and a warranty deed showing respondent Roberts to be the owner of the subject property. (DNR Exhibit 1) Question number 5 on the permit application required the "specific reasons the applicant feels that the permit should be approved and why construction seaward of the control line . . . is considered necessary for reasonable use of the property." The answer provided by the applicant to this question was "the landward property line is located 150 feet seaward of the control line. Therefore, no upland property is available on the site for development." (DNR Exhibit 1) By form letter dated March 16, 1981, DNR notified respondent Roberts that his application for a permit was incomplete and that two further items of information were necessary before his application could be considered. One item was written evidence that the proposed project would not contravene local setback requirements or zoning or building codes. The other item was detailed site, grading, drainage and structural plans and specifications for the proposed structure. These plans were to be certified by a registered Florida engineer or architect. (DNR Exhibit 2) On or about March 31, 1981, the DNR received the certified architectural plans from the project architect, who is registered in the State of Florida. These plans, as well as the site plans submitted by the engineer, contained the signature and seal of the architect and the engineer. They each intended their signature and seal to constitute a certification that, in their opinion, the drawings or plans were in compliance with all statutes, rules, local ordinances and/or other regulations which govern the project. A certification of documents by the placement of signature and seal of an engineer or architect is the commonly accepted practice and usage in those professions. It is not the policy of DNR to require an itemized certification reciting every requirement of the DNR rules. By form letter dated April 6, 1981, the DNR notified the applicant that written evidence of compliance with local government regulations was still lacking. (DNR Exhibit 4) On April 13, 1981, DNR received a letter dated April 9, 1981 from the Walton County Attorney advising that "The Board of County Commissioners of Walton County has no local setback requirements or zoning or building requirements which would prohibit the proposed activity as submitted to the Bureau." (DNR Exhibit 5) This letter satisfied the requirement of Rule 16B-33.08(1)(c), Florida Administrative Code, that the proposed project would not contravene local setback requirements or zoning or building codes. Full scale copies of topographic and site plans were received by the Bureau of Beaches and Shores on April 15, 1981. The application for a permit was deemed complete as of April 15, 1981, (DNR Exhibit 7), and respondent Roberts' agent was notified by letter dated June 23, 1981 that the DNR Executive Director had recommended to the Governor and Cabinet (the agency head of the DNR) approval of the application. (DNR Exhibit 10) The completed application reflects that the five single-family dwellings are to be supported by treated timber pilings with an underside minimum elevation of +14 feet (NGVD). The Federal Base Flooding Elevation for Grayton Beach is +9 feet (NGVD). The architect has certified that the proposed dwelling units are designed to withstand 140 mile per hour winds. The seaward- most dwelling of the five is a maximum of 263 feet seaward of the coastal construction control line, and the applicant's entire parcel of land is located over 150 feet seaward of the control line. The project is located approximately 230 feet from the mean high water line. The project also includes the construction of a private road, septic tanks and drainfields. The dune system in front of the proposed structure will offer substantial protection to the structure against storm and wave action. The excavation proposed includes that necessary for the placement of the pilings, the septic tanks and the drainfields, and the construction of the proposed driveway. The proposed drainfields will extend partially above existing grade and fill material i11 be placed over them. The driveway consists of a 16-foot asphalt paved road located landward of the proposed dwellings. The dunes will be reduced in height where the driveway is to be constructed. It is not clear from the testimony or the documentary evidence adduced at the hearing where the parking of vehicles belonging to residents or guests of the five units is to occur. While there was testimony from Mr. Truitt to the effect that no net loss of sand will occur and that the project will involve more of a balancing of grade as opposed to excavation, the engineering plans submitted with the application illustrate at least nine rather large areas of cut and fill associated with the driveway, septic tanks and drainfields. The project engineer had considered no studies on the topography or littoral trends of this specific site, had no knowledge of engineering data regarding adjacent properties and had not reviewed any data regarding major storms on the subject project site. The engineering plans submitted as a part of the application contain a diagram illustrating five separate 750 gallon septic tank systems, one for each dwelling unit, with the "drainfield [for each unit] to be constructed in accordance with Chapter 10D-6, F.A.C." (DNR Exhibit 1) The larger scale engineer's drawing submitted to DNR on April 15, 1981, gives more specific information regarding the location and depth of the below grade drainfields on the seaward side of the structures. A DNR interoffice memorandum dated June 1, 1981, reflects that the applicant's agent agreed in a telephone conversation that, "if possible, he would move the septic tank (750 gal) and related drainfields to the landward side of the buildings." (Joint Exhibit 1) The Cabinet agenda item dated later in time, however, notes that the "septic tanks (750 gallon) and drainfields will extend an additional 50 feet seaward of each dwelling." (DNR Exhibit 8) The exact proposed location of the septic tanks and drainfields was not clarified at the final hearing, nor was sufficient evidence adduced concerning the justification for the proposed discharge system. Evidence concerning the availability of any existing alternatives to the system proposed by the applicant was not adduced, nor was evidence presented concerning storm water discharge. As of the time of the hearing in this matter, the applicant had no plans for heating or cooling the five dwelling units. When asked at the hearing what "justification" the Bureau of Beaches and Shores received for the proposed waste water discharge system, Mr. Clifford Truitt, the Bureau's chief engineer and the person responsible for review of this application, replied in two ways. First, he stated that the fact that the property was located entirely seaward of the CCCL was justification for the discharge system. However, he admitted that a "dry sanitary system" would be a better alternative. Later, Mr. Truitt stated that "justification" for the domestic waste system is only required when there is a beach level discharge. Mr. Truitt was accepted as an expert witness in the area of coastal engineering. His opinions regarding the proposed project were based upon his review of aerial photography of the Grayton Beach area and comparison of topographic profiles of the area, his review of the engineering and topographic information submitted with the application itself and his familiarity with the project location. No evidence was adduced that engineering data concerning storm tides related to shoreline topography was considered by Mr. Truitt or anyone else. No specific studies exist regarding the stability, littoral trends or the erosional history of the proposed site and surrounding area. The project site has been the subject of other permit applications considered by the DNR, and Mr. Truitt was of the opinion that a mitigating feature of the present application was that "the present proposal has the lowest density and least extension seaward of the control line of any proposal to date." (DNR Exhibit 8) It was Mr. Truitt's opinion that the dwelling unit structures were adequately elevated and designed to adequately resist the natural forces associated with a 100-year return interval storm event and would not increase the threat of damage or danger to nearby structures. Factual evidence concerning the 100-year storm event was not presented at the hearing. Mr. Truitt further opined, without the aid of engineering data or the studies mentioned above, that the proposed construction would not affect the natural shoreline fluctuations or the stability of the dunes in the area. Such an opinion contains no factual basis in the record of this proceeding, and thus is not sufficient evidence upon which to make a similar finding of fact. On various sporadic occasions, a waterway or pass connecting Western Lake to the Gulf of Mexico runs in a westerly direction in the vicinity of the applicant's property. At times, this watercourse has been wide and deep enough to allow swimming, diving and the passage of small boats. The witnesses who testified about this watercourse were not qualified as surveyors or experts in estimating or calculating the exact location of that watercourse relative to the proposed site, and there was no testimony that such an event had occurred within the past twenty years. At least two witnesses testified that the last time they could recall the watercourse or pass traversing or abutting the applicant's property was in the late 1950s. The proposed project site has been covered with storm waters on at least two occasions in the past seven years. No evidence was adduced at the hearing concerning the substantial interests in this permit application of named petitioners Colonel G. A. P. Haynes, Mr. and Mrs. Roy Cawthon, Mrs. Kate Florence, Mrs. Burton Murray, Colonel and Mrs. Lee Fry, Mrs. Laney Ellis and Mrs. Randall Jones. Mrs. G. A. P. Haynes, one of the petitioners in this proceeding, owns and resides on property immediately adjacent to the project site, and presently entertains an unbroken view of the beachfront. She is concerned with potential sewage problems and damage to her residence from flying debris caused by wind or storm should the proposed construction be approved. Mrs. Haynes was also concerned about the potential adverse effect of the proposed construction on the value of her adjacent property. Petitioner Burton Murray lives to the north of the project site, at least several hundred feet away. His prime concern was that no structure could survive at that location and that the project would therefore be a waste of money. Petitioner Elizabeth Hayes Jones (named as Ms. Lisbeth Haas in the petition) lives across the street and to the east of the project site. Her residence was completely destroyed by hurricane and has since been rebuilt at the same site. She feels that the applicant's project site is not safe for construction, and fears storm damage to her home from the buildings if constructed.
Recommendation Based upon the findings of fact and conclusions of law recited herein it is RECOMMENDED that the application for a coastal construction control line permit to construct five single-family dwellings on Grayton Beach be DENIED. Respectfully submitted and entered this 25th day of May, 1982. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982. COPIES FURNISHED: Jerry W. Gerde, Esquire Davenport, Johnston, Harris, Gerde & Harrison, P. A. 406 Magnolia Avenue Panama City, Florida 32401 W. Paul Thompson, Esquire Thompson and Adkinson P. O. Drawer 608 DeFuniak Springs, Florida 32433 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32303 Dr. Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue Whether the application of Respondent Gulf County (County) for permit to install a beach access road, constructed of oyster shell or dolomite, at the stumphole area on Cape San Blas should be granted.
Findings Of Fact On April 11, 1996, the County applied for a permit from DEP to install a beach access road constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide at the stumphole area on Cape San Blas. The County owned the property at the site where a crude road bed to the beach already existed. On that same date, County Manager Donald Butler met with a DEP field engineer, William Fokes, on the site to determine the linear footage that would be necessary for the access road at the stumphole area. Fokes then issued the field permit for the access road to be constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide. Since beach driving is permitted by the County in the area, the access road aids in preventing illegal crossing of beach dunes by motorists to get to the beach. Prior to issuance of the field permit and construction of the access road, the only legal motorist access to the beach was seven miles away. Permits to drive on the beach are issued by the County. DEP rules require that all applicants proposing to conduct permitted activities on a beach use a designated beach access. This road will allow access to conduct permitted activities, thereby preserving and enhancing public beach access. DEP will not permit a project that is expected to adversely impact the beach dune system. Although seaward of the Coastal Construction Control Line (CCCL) in the County, the area which is the subject of this field permit contained no dunes or vegetation since Hurricane Opal had flattened the area. Such a project cannot be permitted if the project will adversely impact existing upland property or property of others. In the instant case, neither the Petitioner’s property, which is located two miles away from the project site, or property of other owners in the area will be adversely impacted. The road is designed to be a non-rigid, pervious structure which causes less impact to any existing dune system. The road site is located on County property and provides logical and appropriate access. The construction of the road did not violate DEP prohibitions on permitting activities having adverse impact to marine turtles since the construction permit expired prior to the turtle nesting season. A requirement of field permit issuance is that the applicant and the DEP area engineer meet on site and review the project. This event occurred on April 11, 1996, when Butler and Fokes met on the site. Fokes determined that the project was within field permitting guidelines and issued the permit. Fokes was authorized to issue the field permit because the project fell in DEP’s category of a driveway or similar activity. Expected impacts of construction of the access road and a driveway are deemed similar by DEP. Subsequent review by DEP staff of Fokes’ issuance of the field permit determined that sufficient information had been provided to him for issuance of the permit, that the project falls in the category of minor activity and that no adverse impact to dunes, property of others, beach access or nesting marine turtles is expected.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered confirming the grant of the field permit which is the subject of this proceeding. DONE and ENTERED this 9th day of May, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1997. COPIES FURNISHED: Lynette L. Ciardulli, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, FL 32399-3000 Michael Paulsson, Pro Se Route 1, Box 347B Port St. Joe, FL 32456 Timothy J. McFarland, Esquire Post Office Box 202 Port St. Joe, FL 32457 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Findings Of Fact On February 10, 1988 Harry B. Williams made application to the Department of Natural Resources for permission to construct a single-family dwelling with appurtenant structures at 2831 Ponte Verda Boulevard South, South Ponte Verda Beach, Florida. The permit sought was a coastal construction control line permit which would allow construction seaward of that line in the direction of the Atlantic Ocean. A copy of that permit application may be found as Department's Exhibit Number 2. Associated with the permit application was a description of the plans related to the dwelling and other structures. This application was received by the Department February 11, 1988. Following a review of the permit application the Department deemed it complete as of February 22, 1988. A site inspection was made of the property and a report was prepared by an employee with the Department, a Mr. Partel. The report may be found as Department's Exhibit Number 4, which includes photographs of the prospective building site, together with the surrounding property to include dwellings to the north and south of the lot where the Williams home would be built. As commented on by Mr. Partel the applicant had intended at that time to construct a single-family dwelling a maximum of 75 feet seaward of the coastal construction control line. Although this evaluator, Mr. Partel, felt that the applicant had requested the right to construct a dwelling which was in line with existing construction, he felt that it could be moved further landward and that it could be limited in deck size and that a cantilevened form of construction was preferable to the concrete called for in the plans set out in the application information. It was also suggested that the sea oats that were in the way of the construction should be relocated seaward on a dune face slope where a denuded area is found. In this connection, the Department is empowered to make suggestions to the applicant concerning the minimization of the adverse impacts on the beach-dune system. Following the site visit of February 26, 1988 the Department wrote the applicant on March 11, 1988 and indicated concerns about the proximity of the dwelling to the crest of the dune. A copy of this correspondence may be found as Department's Exhibit Number 5. In the correspondence the Department asked the applicant to move the proposed dwelling 10 feet landward and that the 10 foot wide concrete patio, on the seaward side, be modified to a 10 foot wide wooden deck. The letter told the applicant that the approval would be conditioned on the sea oats and other dune grasses that would be disturbed by the proposed structures being replanted seaward of the project in the denuded areas of the dune. The applicant agreed to these changes. The relocation of the structure 10 feet landward took it away from the beach- dune system. The modified site plan that was brought about by the suggested changes is found Department's Exhibit Number 6, a copy of that amended site plan. With the relocation the construction would be 66 feet seaward of the coastal construction control line. An aerial photograph of the site location reference the basic design of the dwelling and the proximity to the relevant or existing coastal construction control line is found as Department's Exhibit Number 3. In responding to the suggestions to the change in location the modified site plan which moved the dwelling 10 feet landward was received by the Department on August 1, 1988. Under this arrangement the applicant had agreed to waive the requirements of Section 120.60, Florida Statutes pertaining to the obligation by the Department to review and decide its action of grant or denial within 90 days of date of receipt of the application. With the changes being made to the location of the proposed dwelling and associated structures and the type of construction materials used in the patio on the seaward side, together with the relocation of the plant life, the impact on the beach-dune system and adjacent property is acceptable. There is no adverse impact on the beach-dune system or on the adjacent properties. The location of the proposed dwelling and its associated structures as it relates to the 30-year erosion projection under the terms of Section 161.053, Florida Statutes, in this instance, shows that the dwelling would be approximately 55 feet landward of the 30-year erosion projection and not at risk. Calculations related to this finding may be found within Department's Exhibit Number 7. The existing coastal construction control line dates from January 28, 1988. Although the original application referred to the previous line of 1978 in describing the site plan and survey, the reason for this was that the site plan and survey were prepared prior to the establishment of the January 28, 1988 line, as allowed. In the course of the hearing appropriate reference was made to the January 28, 1988 line as it relates to the anticipated location of the dwelling and other structures as modified at the instigation of the Department. As contemplated by Section 161.053(5)(f), the Department required the applicant to provide mitigation of the- effects of the construction as a condition to a grant of the permit. Those permit conditions may be found in the Department's Exhibit Number 8, a copy of a proposed final order. Included within those would be the requirements for erection of a temporary construction fence on the site to protect existing native dune vegetation from the impacts of that construction, in addition to the requirement of the dune vegetation relocation. This would involve the irrigation and application of fertilizer to those plants with the expectation that a certain percentage would survive over time as described in this special condition. This project will not pose a hazard to the sea turtle and its hatchlings and habitat for the sea turtles and hatchlings. Ms. Butler, Petitioner in this cause, has a beach home which is north of the Williams property separated by a 10 foot easement between those properties. In mid July, 1988 Ms. Butler offered a written statement in opposition to the placement and size of the proposed dwelling together with other remarks and asked that the Department provide her information and documents pertaining to the application under the authority of Chapter 119, Florida Statutes. On August 10, 1988 the Department dispatched a letter of inquiry to surrounding property owners to include Ms. Butler and solicited remarks concerning the Williams application to be provided on or about August 20, 1988. Ms. Butler had received certain documents from the Department concerning the application sometime in the middle of August 1988. On August 18, 1988 Butler made known her objection to the project on the grounds that the concerns about the 30-year erosion line and the size and placement of the dwelling. On September 2, 1988 the Department informed Ms. Butler of the intent to grant the permit to Mr. Williams. A copy of that correspondence may be found as Petitioner's Exhibit Number 5. This led to a timely request for hearing by Ms. Butler stating her opposition to this project. The request was received in accordance with the Department's advice that the request must be filed by September 26, 1988. Based upon the prehearing conference and the discussion of those issues which would be allowed for consideration as stated in the request for hearing and the statement of particulars that attend the request for hearing, commented on by the hearing officer at the commencement of the final hearing, and found within the transcript and further stated in the issues portion to this Recommended Order, this case has been carried forward. The presentation made by the Petitioner, after the Department and applicant had offered their cases, was through her testimony and that of employees of the Department together with exhibits she offered. The testimony of the Department employees concerned the procedural techniques that the agency pursued in reviewing the application at issue. Ms. Butler described her concern for her property, and the area between her property and the Williams property. This is the 10 foot easement area which is sparsely vegetated and low. As a consequence she was concerned that her property might be destroyed with the advent of the Williams construction. She has no expertise in her own right nor did she present expert opinion from other witnesses which would tend to bear out her concern. She also expressed the concern that the Williams home, in its dimensions, was too large and that it should be relocated an additional 10 feet back from the adjusted placement following the Department's criticism of the original application. In effect, she would have the house placed 20 feet away from the sea as compared to the original site plan submitted with the application on February 10, 1988. Again, there is no competent evidence presented which would support her theory that this further relocation was needed. Her expression of concern for the sea turtles and their hatchlings and habitat was not well founded. Turtles are known to nest on the sandy flat beach area and the construction of the Williams property will not interfere with that area adjacent to the ocean.
Recommendation Based upon a consideration of the facts and the conclusions of law reached, it is RECOMMENDED: That the Department enter a Final Order which grants a coastal construction control line permit to Harry B. Williams, Jr., based upon his modified plan required by the Department and upon the special permit conditions announced in the proposed final order, a copy of which is found as Department's Exhibit Number 8. DONE and ENTERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 27th day of April, 1989.
Findings Of Fact Petitioner, JOHN C. GROSS, a citizen and resident of Edgewater, Florida, owns approximately 114 acres of submerged and semisubmerged land, which at times extends from 3 to 9 feet above the water and which lies in the near vicinity of Ponce de Leon Inlet, New Smyrna Beach. His property is located due southwest of the inlet and west of the Intracoastal Waterway. The Intervenor, FRANCES TURNER PRICE, is the owner of an oceanfront house and lot located at 2113 Ocean Drive, New Smyrna Beach, Florida, which is directly adjacent to and west of a portion of the proposed spoil disposal area referenced herein. The Ponce de Leon Inlet was first dredged by the COE in 1968, pursuant to a 1965 Act of Congress, and has been dredged periodically since that time. No dredging has taken place there since March, 1978. During the past several years, numerous complaints have been received by the COE from users of the waterway concerning the increased clogging of the inlet channel. These users include operators of relatively large boats, such as commercial fishermen and shrimpers, large yacht owners, and the United States Coast Guard, which maintains and operates a station in the area. Based on these complaints, Mr. Aston, COE Navigation Branch, caused an investigation to be made which revealed an extensive and worsening shoaling which, if not corrected, would further reduce the channel opening. This investigation included several hydrographic surveys using Fathometers (accomplished in November, 1952, and subsequently thereto). The channel, which runs basically east and west from the Intracoastal Waterway to the Atlantic Ocean, is currently navigable (but not safely) by larger draft vessels such as are described above. Because of the prevailing winds from the northeast, larger vessels come in from the northeast; have to come around the jetty, which juts into the ocean north of the channel; and then have to stay close to the jetty to avoid the heavy shoaling in the dredged channel originally in the center of the inlet. 1/ This is dangerous because sport fishermen are frequently anchored in the water just south of the jetty, in the way of the boats going in and out. This danger is compounded by the fact that boats going in and out cannot see each other, because of the jetty to the north and the land to the south, until they both are committed to the channel. Therefore, once in and committed, they are in danger of collision because of the narrowness of the passage and the need to avoid the small fishing boats anchored therein. As a result, the original channel, which provides safer passage, needs to be dredged again immediately to prevent more groundings and collisions with resultant loss of life and property damage such as the 50 which have already occurred there within the past 15 months. In the opinion of Mr. Aston, the situation in the Ponce de Leon Inlet, as it pertains to shoaling, is the worst he has seen in any federal channel in 19 years. It is for these reasons that during the 1982-83 time frame, the COE decided to seek permission to proceed with a dredging project. Initially, three different areas were considered for disposal of the 800,000 or so cubic yards of spoil which would result from the dredging. These were: off the beach north of the north jetty; just south of the weir to which the north jetty is attached; and the beach area approximately one mile south of the inlet. For various reasons, Options (a) and (b) were rejected, and Option (c) was the area then intended for the spoil disposal. The initial application, submitted on November 10, 1982, called for the spoil to be transported by pipe over easements down the beach to the disposal area, where it would then be dumped on the beach to fill in the area of beach eroded and eroding. However, because of public objection to that plan, the COE agreed with the local beach advisory board to move the spoil 1,000 feet offshore to an area approximately 800 feet by one mile long, adjacent to the beach approximately one mile south of the inlet. In any event, both the original application and the amendment thereto (to change the location of the spoil disposal area) called for only one procedure--not multiple dredgings and disposals. This proposed permit, which is objected to by Petitioner and Intervenor, indicated permission for more than one procedure. Intervenor protests this even if permission is to be given for the initial dredging. However, Dr. Collins, from DER, indicated that since a determination was made that the action would have no adverse impact on the environment, there was nothing wrong with giving permission for multiple dumpings. In fact, the Notice of Intent to Issue contains Provisions for monitoring the turbidity caused by the operation and also provides for DER modifications to the conditions or other provisions of the permit as necessary, and recognizes COE's assurances that the immediate and long-term effects of the project will not violate state water quality standards. The spoil, which consists almost exclusively of beach quality sand and which is highly valuable, will be laid down in a berm-shaped deposit the top of which will, at low tide, be no less than 6 feet below the surface of the water. In that configuration, it could not be seen from shore and would in no way impede navigation. The decision to dispose of the spoil in this fashion was made partially on the basis that it would tend to put sand back on the eroded beach in the area. Intervenor theorizes that the spoil (sand and water) will not form this neat berm, but will spread out when it comes out of the dredge pipe below the surface of the water. COE indicates that the contractor on this project will use some sort of a buffer to contain the spread upon discharge. It is anticipated that this project will have to be repeated again and again to keen the channel clear. Though the 800,000 cubic yards anticipated for removal on this occasion is great, so much has never been taken out here at one time before. This is because, as was stated previously, the last dredging was in March 1978, and COE estimated that dredging should take place every 16 months or so. If done on that schedule, succeeding dredgings will be of a far less significant amount. Petitioner, whose profession is as a real estate developer, but whose avocation is as a conservationist of marine life, contends he has been involved in environmental research and protection all his life (he is at least 70). He has, he states, developed several environmental concepts which have, he contends, never been disproved. They are not, however, enjoying widespread acceptance, either, though he contends the Rosenstiel School at the University of Miami has said his environmental concepts are sound. This well may be so; however, Mr. Gross neglected to produce any evidence as to what these concepts are or indications of their soundness. Though he admits to having no formal training in any of the sciences or in engineering, and his research consists of bathing and fishing in the area (he uses a device to gather bait which results in his picking up a part of the sea bottom) he has published. The Petitioner's publication introduced into evidence consists of the reward notice reproduced herein. $2,000 REWARD To make the public aware of hypocritical groups who mislead and misinform the public about environmental protection, I will donate $1,000 to the first organization, agency, student or individual who produces evidence to prove beyond reasonable doubt that excessive nutrients consisting of mangrove leaves and pods, algae, slime, scum, silt and bacteria, and decaying bodies of all types of insects and creatures emanating from mangrove swamp area DOES NOT cause destruction of shellfish and all forms of marine plant life when infused in excessive amounts into rivers and estuaries by extremely high tides and heavy rainstorms. $1,000 to the first organization, individual, or student who provides evidence to prove beyond reasonable doubt that recent high tides caused by full moon and heavy rains washing through mangrove swamps DID NOT cause most of the crabs, shrimp, and fish to be destroyed or leave this area when the river became polluted with all types of slime, scum, silt, sludge, and mangreve debris, and droppings of birds and animals and all types of decaying material from the mangrove swamps carried into the river by the tide. John C. Gross PO Box 596 New Smyrna Beach, Fl 32069 Though Petitioner was offered the opportunity by the Hearing Officer to submit additional publications when he indicated he had many and was reminded of this later in the hearing by the Hearing Officer, none were forthcoming. Petitioner professes to be very familiar with the area where the dredging and disposal are to take place, and no doubt he is. He contends the area is in a constant state of change, differing from month to month, and populated by a sea life consisting primarily of shellfish, shrimp, and fish. The beach in the area proposed for disposal, he contends, has already built out some 400 to 500 feet since the jetty was built and has naturally built up dunes which, in his opinion, are due to the COE dredging in the past. This beach buildup is a concern of the Intervenor, as well, who indicated that she can no longer see the ocean from her "oceanfront" house due to the large dunes that have built up between her house and the ocean during the years since the construction of the jetty. She is also fearful that the spoil dumped offshore of her property will come ashore there and add to the already expanded beach. Her concerns and those of her neighbors, including Mrs. Speer, who testified in support of Intervenor's position, include the blocked view already mentioned, the fact that the higher dunes are difficult for older people to climb, the fact that it is further to the water with the new sand, and the concern over who will own the new land built up seaward of the vegetation line. 2/ People are already building closer to the water than she did, blocking her lateral view; and all of this will have, she fears, a negative impact on the value of her property. It is without question that dunes have built up and beach area has accreted since the jetties were put in. This is explained by Dr. Dean as a relatively temporary situation resulting from the movement ashore of a preexisting tidal shoal, formerly located outside the entrance to the Ponce de Leon Inlet, which was destroyed by the interruption of the wave action when the jetty was built. The sand from this shoal came ashore at and around the Intervenor's property, as well as north and south of it, adding to the beach and building the dunes. This accretion has stopped, however, and even reversed, and a beach erosion has begun. In any case, according to Dr. Collins of DER, accretion is not usually a consideration in the decision-making process regarding a permit of this nature. Petitioner indicated his understanding that the spoil was to be deposited 3 feet deep over the bottom in the disposal area and believes this will destroy marine life. As will be seen later, competent expert testimony clearly disproves this one theory. He also does not believe anyone can predict where the spoil will settle, but wherever that is, in his opinion, it will have a devastating effect both on the marine life in the area and on the adjacent beaches. He questions the COE's representation that because of the literal drift's prevailing direction from north to south, the spoil will ultimately settle south of the spoil dumping area. Expert testimony, discussed in detail below, will indicate the correctness of the COE's representations. Petitioner further contends that insufficient surveys have been made of the area. In his opinion, the two or three borings that have been done (in actuality, there were more) are not sufficiently extensive since the area in question is too broad and the bottom is not uniform. Therefore, many more borings are needed, he urges, to accurately determine the makeup of the sea bottom. This bottom makeup has an effect on water quality. Sludge, slime, and silt adversely affect water quality. Clean sand is acceptable. However, Petitioner feels that the dredging proposed may, if the bottom where they dredge is of peer quality, be very bad for the bottom in the deposit area. In that regard, it has been shown that the tests done already indicate that the material to be dredged out of the channel is beach quality sand. Other evidence, in the form of samples of the bottom taken in the disposal area, show it is made up of sand with small shells. In neither location is there any evidence of silt, sludge, or slime. In fact, the expert testimony indicates clearly there would be no damage to water quality in either area. A more comprehensive discussion of this subject will be presented below. Petitioner also fears for the manatees and the sea turtles which sometimes come into the area. The expert testimony to be discussed further below readily shows these fears are groundless. It would appear that there may be some reason for Petitioner's interest in this project other than the stated environmental and ecological concerns stated above. By his own testimony, he revealed he had offered to buy this highly valuable 3/ spoil for $400,000. Mr. Aston, of COE, further testified that as late as one week prior to this hearing, Petitioner called him and indicated the matter could be disposed of quite easily if the COE would put the spoil on his property. The Notice of Intent to Issue and the permit to which it relates are not for a one-time dredge. The permit will be for 5 years, but it 15 subject to extension by letter for an additional 5 years. In the analysis of the application, the environmental concerns and the concerns of the public were not taken lightly. The DNR, by letters dated March 9 and June 28, 1983, expressed its lack of objection to the proposal and granted the authority required under Section 253.77, Florida Statutes. The contract is to begin in September, 1984, and be completed by April, 1985. These months were chosen because (a) they take advantage of the northeast winds prevailing then; and (b) there is no sea turtle nesting during this period. Consequently, there would be no risk of harm to the sea turtles. In addition, the risk of harm to the manatees is minimal. They, as a rule, do not frequent these waters, preferring the quiet backwaters of the rivers and bays to the fast moving waters of the channel or the ocean, and they are generally fast enough to avoid both the dredge and the dump. To be doubly safe, however, the contract calls for a "manatee watch" to be conducted and a log kept of all manatees sighted. Another area covered in the contract is water turbidity. Turbidity will be monitored and actions taken to maintain state water quality standards outside the mixing zone--that area inside of which the water temporarily does not meet state standards and outside of which it must. In this case, this zone would extend not more than 150 meters from each point of interest. COE's application contained reasonable assurances that the state's turbidity standards would not be exceeded more than 150 meters from both the dredge and spoil areas. Tests already run on anticipated turbidity show a rapid (4-minute) settlement out due to the fact that the substance being dredged is heavy sand, not light silt. Continuing with an analysis of the impacts of the project which cannot be avoided, on life in both the dredge and the fill areas, it is seen that: Some nonmobile animal life attached to the sea bottom (worms, etc.) in the spoil area which cannot escape being covered by the spoil will be killed. Some sea life sucked up by the dredge and moved will be killed even though they are dumped back into the water in the spill area. However, wherever some death occurs, it will be individuals, not entire populations, and the dump area will be quickly repopulated by sea life from the surrounding area in addition to the live population brought through the pipeline. Full repopulation can be expected within six months. In a more detailed discussion of the disposal site, it is clear that because of the wave action and the hard bottom, one would expect no grass beds, and there are none, nor are there any natural reefs. A survey of the bottom in the disposal area was done by utilizing loran to accurately locate 12 stations throughout the spoil disposal area with three samples to be taken at each site. At seven of the twelve stations, the scientists found the bottom hard and no sample was produced. At only one of the stations, Station 6, some samples were gathered, and what was acquired was very similar to the surf area near the shore. Dr. Atmar admits that the dumping will create some damage to the bottom life and repeated dumping may have a cumulative effect. However, since, as was stated above, complete repopulation can be expected within six months, the damage caused by dredging and dumping every 16 months, even of large amounts of spoil, will be, in his words, "inconceivably insignificant," and that which does occur will be short-lived. Turning then to the question of the impact of the spoil disposal on the beach property adjacent to the disposal area, Dr. Dean explained the prospective results, as well. In conjunction with other experts in sediment transport and based on at least 20 years of accumulated documentation, he developed a model which, when applied to a given situation with variables, can generally permit accurate predictions of what will happen. Applying this model to the dredging area, it is seen that the primary factor which leads to sediment transport here is the wave action which primarily comes from the northeast. This will transport sediment from the north to the south. When the present channel was dug, it interrupted the normal cycle, which, in an attempt to return to the natural flow, fills up the channel. This necessitates new dredging. Applying the model to the disposal area, again the waves play an important part. Based on all available pertinent information, the spoil deposited would generally transport to the south with a very minor amount, + 5 percent going west and another + 5 percent going north. Both the westward and the northward movement would be very slow. The remaining 90 percent of the spoil would move to the south and would reach the shore a mile or two south of the southern boundary of the proposed disposal area. Of this 90 percent, 50 percent would reach the beach within three to four years--the remainder would take longer. The amount of deposited spoil that would go due west to the adjacent beach would be less than would accrete during the normal seasonal accretien. What is more, the proposed disposal activity would have an imperceptible effect on the elevation of the dunes which already exist. The difference between Dr. Dean's estimate of 10 Percent drift to the north and west and COE's estimate of 20 percent sand drift in those two directions is not significant. Both are estimates, and not specifics. As was stated previously, the spoil in question here is a highly valuable beach quality sand with no evidence of muck, slime or silt. If it were to be deposited further out to sea than is proposed here, where the wave action could not get to it, it would be lost to the littoral transport action and would never come to the beach. This would result in the loss of a high quality resource to the beach in an area to the south where the beach is in need of replenishment, and further beach erosion to the south where the existing dunes are eroding due to the effect of the building of the previously mentioned jetty and because of the worldwide rise in the sea level. Admitting he was hired to testify by the COE after the decision was made as to where to deposit the spoil, Dr. Dean contends that had he been asked where to put it before the decision was made, he would have recommended a site closer to shore, but at the same latitude.
The Issue Whether the permit application of Clifford S. and Maria Ray (the "Rays") meets the statutory and rule requirements for the Department of Environmental Protection ("DEP" or the "Department") to issue to the Rays a permit to construct a multi- family dwelling and related structures seaward of the coastal construction control line ("CCCL") on their property in Brevard County?
Findings Of Fact Legislative Intent re: Beaches and Coastal Barrier Dunes The Legislature has declared that the beaches and the coastal barrier dunes in this state, subject by their nature to severe fluctuations, represent one of the most valuable resources of Florida. See § 161.053(1)(a), Fla. Stat. The Legislature has further declared that it is in the public interest to preserve and protect the beaches and dunes from imprudent construction because it can "jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access." Id. The Legislature has therefore directed the Department of Environmental Protection "on a county basis along the sand beaches of the state fronting the Atlantic Ocean [and other salt water bodies]" to "establish coastal construction control lines." Id. The "Coastal Construction Control Line" A line of jurisdiction, rather than a line of prohibition, the Coastal Construction Control Line (the "CCCL or the "Control Line") is defined in Chapter 62B-331 of the Florida Administrative Code. The Control Line is: the line established pursuant to provisions of Section 161.053, F.S., and recorded in the official records of the county, which defines that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions. Fla. Admin. Code. R. 62B-33.002(12). The Department's Office of Beaches and Coastal Systems has regulatory authority to permit or deny construction seaward of the Control Line pursuant to statutory and rule criteria. This proceeding concerns the exercise of that authority in the form of issuance of a permit for activity seaward of the Control Line in Brevard County. Brevard County's Control Line The Control Line in Brevard County was established by the Department of Natural Resources, an agency of the state and a predecessor of DEP, in 1981 (the "1981 CCCL"). A second Control Line in Brevard County was established in 1986, again by the Department of Natural Resources. It is approximately 150 feet landward of the 1981 CCCL. It will be referred to in this order as "the CCCL" or "the Control Line." The line established in 1981 will be referred to as the "1981 CCCL," to distinguish it from the Control Line established in 1986, the Coastal Construction Control Line applicable to this proceeding. The Parties Mrs. Pope Petitioner, Carole C. Pope, owns with her husband James M. Pope, oceanfront property located at Wilson Avenue, Brevard County, Florida, where the Popes reside part time. The Popes' property has a Cocoa Beach mailing address, but is not within the city limits of Cocoa Beach. Littoral to the Atlantic Ocean, the Popes' property was identified in the pre-hearing stipulation in the Rule-related Cases (discussed in this Order's Preliminary Statement) as "Lot 11, Block 101, Avon by the Sea as described in Plat Book 3, page 7 [presumably the Official Records of Brevard County] and east to Ocean, except the west 13 feet of Lot 11." See Final Order, Pope v. Department of Environmental Protection et al., Case No. 03-3860RX, paragraph 7, page 9. The Popes have two duplex units on their property. Built in the 1950's, they consist of concrete foundations, block walls, and 10-foot-high flat roofs. Mrs. Pope and her husband have retained the native, salt-tolerant vegetation that surrounds the duplexes. Protective of the property because it serves to enhance and stabilize the primary/frontal dune, it also adds to Mrs. Pope's enjoyment and use of her property. She enjoys the native flora, an integral part of the habitat of native fauna (gopher tortoises and indigo snakes, for example) that she enjoys watching. She particularly enjoys feeding and interacting with the sociable scrub jay. The Department and its Office of Beaches and Coastal Systems The Department is responsible for the administration of Parts I and II of Chapter 161, Florida Statutes, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control lines; activities seaward of the coastal construction control line; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties." § 161.053 (21), Fla. Stat. Pursuant to its rule-making authority in Section 161.053 (together with other specific authority), Florida Statutes, the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)." The Office is in the Department. Fla. Admin. Code R. 62B-33.002(11). Permits for construction or other activities seaward of the construction control line, such as the permit in this case, are issued pursuant to Section 161.053, Florida Statutes, by the Program Administrator of the Bureau of Beaches and Wetland Resources on behalf of the Department. See Respondents 1, Vol. 2, Tab 22. The Department has not delegated Chapter 161 permitting authority to Brevard County. The Rays Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No. BE-1083, preliminarily issued by the Department in its final order of September 19, 2003. The property consists of four 50-foot-wide lots, Lots 12, 13, 14 and 15 in Avon by the Sea. Lot 12 is immediately adjacent to Mrs. Pope's property. Some of the native vegetation on the property has been disturbed by the planting of sod and installation of an irrigation system seaward of the Brevard County coastal setback line and the Control Line. The activity is the subject of administrative enforcement actions by the County and DEP. Although government claims of violations had not been resolved finally as of the date of hearing, the Rays have not resisted the claims. The Permit was issued to the Rays under the authority of Section 161.053, Florida Statutes. It authorizes activities on the Ray property seaward of the CCCL. This activity includes the construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry wall and an exfiltration trench, as described in more detail in the section of the Permit entitled "PROJECT DESCRIPTION." Respondents Ex. 1, Vol. 2, Tab 22, Permit No. BE- 1083, p. 2-3. The Department was not aware of the claims of violations made against the Rays referred-to above at the time that Mr. Tammisetti, the engineer assigned to review the permit file initially, recommended that the permit be issued. Had Mr. Tammisetti been aware of the claims he still would have recommended issuance of the permit. Coastal Systems and Fixed Coastal Cells The term "Coastal System" is defined by the Department in its rules: "Coastal System" is the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and structures. Fla. Admin. Code R. 62B-33.002(13). Within the coastal system are "fixed coastal cells," also defined by Department rule: "Fixed Coastal Cell" is a geomorphological component of the coastal system which is closely linked internally by active physical processes and is bounded by physical features which exercise a major control on refraction patterns or which compartmentalize or severely limit longshore sediment such as headlands or inlets. Fla. Admin. Code R. 62B-33.002(24). Within and adjacent to a fixed coastal cell of Florida's coastal system lie sea, shore, beach, dune system, vegetation, uplands and structures with which this proceeding is concerned. The Beach and Dune System within the Fixed Coastal Cell The Ray property and the Pope property are located in a fixed coastal cell that extends from Canaveral Inlet (north of R014, one of a series of coastal monuments installed by the state) southward to Monument R050. The community in which the property is situated is a "Coastal Uplands: Beach Dune" community characterized by a beach and dune system. There is one primary/frontal dune with a height at the top of the bank of about 13.4 feet NGVD seaward of the proposed project. The portion of property on which the project is sited is between 7.3 and 10.7 feet NGVD. The most recent DEP design wave height elevation for R015 is 14.2 feet NGVD, higher than the existing dune elevation at the Ray property. Much of the Ray property behind the dune is lower in elevation than the elevation of contiguous properties, the likely result of persistent cutting of native vegetation that acts to intercept wind-blown sand as it moves along the shoreline. Beach and Dune Data in DEP File BE-1083 In the application review process, Mr. Tammisetti submitted a memorandum dated May 24, 2001, to Mr. McNeal. The memorandum appears to have been a form with blanks into which information was inserted or handwritten close to the appropriate blank. For example, under Section I., of the form "PROPOSED PROJECT" is "A. Project Location:", followed by a description with blanks left for number of feet, direction (north, south, east, west) reference monument number, county and project address. Handwriting close to the blanks leads one to understand or gather that it intends to communicate the following statements: The location of this project is approximately 100 feet N to 103 feet S of the Department of Environmental Protection's Reference Monument R-15, in Brevard County. Project Address: Harding Ave, Cape Canaveral. This is within the local jurisdiction of Brevard County. Respondents 1, Vol. 2, Tab 13. The form also contains Section II., "CHARACTERIZATION OF BEACH/DUNE SYSTEM". The section calls for three categories of characterization: A., a general description; B., beach topography in terms of shoreline alignment, berm width in feet, berm elevation in feet (NGVD), direction of net littoral transport, volume of net littoral transport in cubic yards per year, and general conditions; and C., Primary Dune/Bluff Topography with dune width in feet. None of the information called for by this section has been filled in on the form. At hearing, Mr. Tammisetti testified2 that berm width was 220 feet and the berm elevation ranged from 3 to 10 feet NGVD. He testified that the direction of littoral transport was north to south but he did not know the volume of net littoral transport. He stated that the "general site condition" was an eroding shoreline. He estimated the dune width at between 30 to 40 feet. These facts and figures exist under an overarching consideration. The beach near R015 that fronts the Pope and Ray property is critically eroding.3 Vegetation on the Ray Property There is a sea grape cluster and numerous palm trees on the Ray property. The seaward most continuous line of native salt-resistant vegetation or the "vegetation line" is near the line at the toe of the slope of the dune bank depicted on the topographic survey drawing submitted as part of the application. Nanette Church, at the time an employee of Brevard County, visited the site on July 1, 2003. She documented the presence of fresh sod and a new irrigation system installed seaward of the County's coastal setback line, a line parallel to and 25-feet landward of the 1981 CCCL. Two days later, DEP Inspector Gene Verano conducted a site inspection and documented the placement of sod and the installation of an extensive irrigation system. On July 31, 2003, the Department under the signature of Jim Martinello, an Environmental Manager in the Bureau of Beaches and Wetland Resources, issued a warning letter to Mr. Ray with regard to "POSSIBLE UNAUTHORIZED ACTIVITIES SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE." The letter reads, in part, Pope 3. [I]t appears that you have again been engaged in unauthorized activities on your property located approximately 100 feet north to 100 feet south of the Department of Environmental Protection's reference monument R-15, in Cocoa Beach, in Brevard County, Florida. The possible violation consists of the destruction/removal of native vegetation and placement of sod and an irrigation system seaward of the coastal construction control line without benefit of a permit from the [department.] The sod seaward of the CCCL has a negative effect on the stability of the dune system. A weakened dune system allows for storm surge and overwash to breach the dune and cause washout on the landward side of the dunes. Brevard County has not yet issued a land clearing or landscape permit to the Rays. A "Brevard County Land Development Site-Plan Approval" with an approval date of December 30, 2003, warned, "[i]t is the responsibility of the Owner/Engineer of Record to contact Office Natural Resources for a Land Clearing/Landscaping Permit." Respondents' 1, Vol. 1, Tab 12. The Rays are not contesting County or DEP enforcement actions relative to the land clearing, sod placement, and irrigation system installation. Project Description The project proposed by the Rays is to be located on their property in the unincorporated area of Brevard County known as "Avon-by-the-Sea," in the vicinity of Department monument R-015. The project is known by Brevard County as the Ray Condos and also as the Michelina Condominium. The location of the multi-family dwelling relative to the Control Line is "[a] maximum of 105.56 feet seaward." Id. Its exterior dimensions are "209.67 feet in the shore normal direction by 84 feet in the shore-parallel direction." Id. The type of foundation is "Pile." Id. There is no mention in the Permit of the height of the building. The swimming pool is described in the Permit in detail with regard to its dimensions and location (a maximum of 101.49 feet seaward of the control line), the type of construction and its maximum depth: six feet. Excavation/Fill for the project is described in terms of volume of excavation, its location, volume of fill as replacement, and location of fill. The Excavation/Fill description is subject to Special Permit Condition 6. Among other provisions of the condition, the fill is to be "from a source landward of the control line and shall consist of sand which is similar to that already on the site in both grain size and coloration." Id., p. 4. Other permitted structures and activities are listed and described in the Permit with reference to special permit conditions: A wooden beach/dune walkway structure of dimensions 174 feet shore-normal by 4 feet shore-parallel is to be located seaward of the control line. See Special Condition 7. A 4-foot to 14-foot swimming pool deck attached to the periphery of the swimming pool is to be located a maximum of 105.96 [feet] seaward of the control line. See Special Permit Condition 2.1. Paver-block parking area on the south side of the proposed dwelling. Masonry walls along the north and south property lines to extend a maximum of 105 feet seaward of the control line. See Special Permit Condition 2.2. An exfiltration system trench on the south side of the proposed dwelling. Among nine special conditions in the Permit are that no work can be conducted until a DEP "notice to proceed" has been received by the Rays. Another is that prior to the issuance of such a notice "two copies of detailed final site and grading plans and specifications" shall be submitted including two sets of landscape drawings. Id., p. 3, Special Permit Condition 2. See id., 2.3. The landscape plan must be submitted to Brevard County for approval under the Permit's special conditions. Given Brevard County's requirement that the Rays secure a Land Clearing/Landscaping Permit, there will be an ongoing process that poses the potential to ensure that the Rays' project will be designed to minimize the impact on native vegetation. The process also may require a restoration plan, as well, for the impact to native vegetation caused by the sod and the irrigation system. The Rays have submitted such a plan to the County. Relationship of the Proposed Project to the Pope Property The proposed multi-family dwelling is sited 10 feet south of the northern property line (the line that serves as the southern boundary of the Pope property). Ten feet is the minimum setback from adjacent property allowed by the county. The duplexes on the Pope property are situated in a range from 3.5 to 4.5 feet from the property line (the border with the Ray property.) The project, therefore, is proposed to be as close as 13.5 feet of the Pope duplexes. If built, running the length of the duplexes, it would create a relatively narrow space between the proposed structure and the Popes' duplexes that ranges from 13.5 feet to 14.5 in width. The Application The Rays submitted their CCCL permit application to the Department through their agent, Joyce Gumpher. On January 24, 2003, Ms. Gumpher executed a certification "that all information submitted with this application is true and complete to the best of [her] knowledge." Respondents Ex. 6, APPLICATION FOR A PERMIT FOR CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE OR FIFTY-FOOT SETBACK. The application was received by DEP on January 27, 2003. Additional information was requested by the Department. On April 21, 2003, the Department deemed the application complete. During the application process, several plan sheets were revised. Revised plan sheets were submitted after the application was deemed complete (see Respondents' Ex. 6, July 29, 2003 plans and September 5, 2003 plans) and once prior to DEP's determination of its completeness. (see id., April 7, 2003 plans). Review of the Application On August 26, 2003, Mr. Tammisetti submitted a memorandum to Mr. McNeal that recommended approval of the application with special permit conditions. The memorandum, similar in form to the memorandum submitted on May 24, 2001, except for the lack of Part II., is entitled "Description of Beach and Dune System Fronting the Subject Property and an Analysis of Impacts to be Expected From the Proposed Construction." Respondents 1, Vol. 2, Tab 20. It describes the proposed project but, lacking Part II., it neither characterizes nor describes the beach/dune system. Nor does it analyze the impacts of the proposed project other than to provide the "final comment" that "[t]he proposed project is landward of line of construction and 30-year erosion project. Impactive shore- parallel coverage is approximately 72%." Id., p. 3. Under its rules, after reviewing all information required, the Department is mandated to: Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effect of the construction on the coastal system and marine turtles. * * * Require siting and design criteria that minimize adverse impacts and mitigation of adverse or other impacts. Fla. Admin. Code R. 62B-33.005(3). As found earlier, the file in BE-1083 does not contain any documentation that the Department conducted the impact assessments required by the rule. Nonetheless, the Department based its evaluation on the portion of the fixed coastal cell from just north of R013 to approximately 400 feet south of R017 depicted on Respondents' 7. Respondents' 7 Respondents' 7 is an aerial photograph of developed uplands and off shore waters of the Atlantic Ocean in between which is the shore line and a stretch of beach in Brevard County. The sandy beach in the photo runs from north to south from Monument R013 to approximately 400 feet south of Monument R017, five monuments in a series set by the state along the Brevard County coast. The photograph is data the Department reviewed to determine if existing structures established a "reasonably continuous and uniform construction line closer to the mean high water line than [the coastal construction control Line]." § 161.053(5)(b), Fla. Stat. (This "reasonably continuous and uniform construction line" will be referred to as the "Construction Line" in this order.) The Pope property and the Ray property both straddle the Construction Line. The photograph shows four structures (the "Four Structures") that were determined by DEP to establish the Construction Line. Two are to the north of the Ray property; two are to the south. Of the two structures to the north, the closest is between 400 and 450 feet north of the northern boundary of the Ray property. It sits between Monument R015 and R014. The other structure to the north used to establish the Construction Line lies between Monument R014 and R013. Its southernmost corner is approximately 1200 feet to the north of the northern boundary of the Ray property. The roof of the closest of the Four Structures to the south, lying between Monument R015 and R016, viewed from the air above is rectangular indicating the structure to have a rectangular footprint. Positioned at an angle to the coast, its southeastern corner is along the 1981 CCCL. That corner is approximately 400 feet south of the southern boundary of the Ray property. The second structure to the south sits between R016 and R017. Its northernmost corner is roughly 850 feet south of the southern boundary of the Ray property. The Application Rule Florida Administrative Code Rule 62B-33.008(4), entitled "Permit Application Requirements and Procedures" (the "Application Rule"), requires that the Rays' application contain certain specific information, including that identified in subsection (f): Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of the application. The rule further calls for the topographic survey drawing to include specific information such as "[t]he location of any existing vegetation line on the subject property." Fla. Admin. Code R. 62B-33.008(4)(f)9. The topographic survey drawing submitted as part of the application in January of 2003 reveals a survey date of "7/17/02." Respondent's Ex. 1, Sketch of Boundary and Topographic Survey, Lots 12-15, Block 101, Avon by the Sea, Brevard County, Florida. Other than the date of the survey, the evidence at hearing did not reveal when the fieldwork in support of the survey was conducted.4 In all likelihood the fieldwork was conducted close to July 17, 2002, but obviously prior to July 17, 2002. Whether the date of the application is considered to be the date of Ms. Gumpher's certification (January 24, 2003), or the date of its receipt by DEP (January 27, 2003), it does not depict "field survey work performed not more than six months prior to the date of the application." January 24, 2003, is six months and one week after July 17, 2002. January 27, 2003, is six months and 10 days after the date of the survey. The Vegetation Line The topographic survey drawing submitted as part of the application did not meet precisely the requirements of the Application Rule in several other ways. For one, it did not label the location of "any existing vegetation line on the subject property." At hearing, the Rays submitted a revised copy of the topographic survey drawing (still dated "7/17/02"). The revision labels a line indicated on the originally submitted topographic survey drawing as "TOE OF SLOPE" (within a few feet of the top of the dune bank) as "TOE OF SLOPE AND VEGETATION LINE." Thus, it is apparent that the originally submitted topographic survey drawing depicted the vegetation line; it merely failed in its labeling of the vegetation line. The Department, once it became aware of the omission of a reference to a vegetation line in the original submission, waived the requirement for one. At hearing, Mr. McNeal testified that the waiver was authorized by subsection (7) of the Application Requirements and Procedures Rule: The Department recognizes that the requirements specified in paragraphs 62B- 33.008(4). . . (f) . . ., F.A.C. may not, due to the project circumstances, be applicable or necessary to ensure protection to the beach and dune system. In such cases, the applicant shall, as part of the application, identify those requirements and state the reason why they are inapplicable. The Department shall waive requirements that do not apply. Fla. Admin. Code R. 62B-33.008(7). There is no evidence of record that the Rays informed DEP of a position that the "location of the vegetation line" on the topographic survey drawing was a requirement inapplicable or unnecessary to ensure protection to the beach and dune system.5 Nonetheless, construing its waiver authority to be broader than authority limited to cases in which identification of inapplicable and unnecessary requirements had been made by those seeking DEP waivers, the Department waived the requirement. The waiver was based on knowledge gained from the experience of DEP employees. The employees (Mr. Tammisetti and Mr. McNeal) knew that the vegetation line would be close to the top of the dune bank line and the toe of slope line, both of which were located on the topographic survey drawing.6 Respondents' 2 supports the Department's waiver since it labels the vegetation line where the Department roughly expected it to be. Complete Dimensions and Distance Perpendicular The Application Rule further demands that the topographic survey drawing contain: 15. Accurate dimensions and locations of the foundation outlines of any structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of Section 161.053(5)(b) or 161.052(2)(b), F.S., and the distance perpendicular [the "Distance Perpendicular"] from the CCCL or 50-foot setback to the seaward corners of the foundations of any major structures . . . . Fla. Admin. Code R. 62B-33.008(4)(f). The application contained the dimensions and locations of the two (2) duplexes located on the Pope property, that is, the adjacent area to the north of the Ray property. With regard to the adjacent area to the south of the Ray property, the application contained the seaward dimensions and locations of the major structure that makes up the Discovery Beach Resort structure. The topographic survey drawing did not contain the dimensions of the complete footprint of the Discovery Beach Resort. Nor did it contain the distance perpendicular from the CCCL or 50-foot setback to the seaward corners of the foundations of all major structures depicted. Mr. McNeal noticed that required elements were missing from the application. When he made the permitting decision, he waived them pursuant to a delegation of authority from the Office of Beaches and Coastal Systems. Delegations of Authority Office of Beaches and Coastal Systems The Director of the Office of Beaches and Coastal Systems has delegated certain authority to subordinates in the Office of Beaches and Coastal Systems with respect to the CCCL permitting program. The delegations, as reflected in a document entitled "Delegations of Authority, OFFICE OF BEACHES AND COASTAL SYSTEMS" (Pope Ex. 1), is to "the Director of Office of Beaches and Coastal Systems, or his/her designee." Id., 3.a. As the administrator of the CCCL program within the Bureau of Beaches and Wetlands Resources, Mr. McNeal has been delegated authority under Delegation "OBCS-9" (id., p. 14 of 24), to "[t]ake final agency action on permit applications . . . pursuant to Sections . . . 161.053 . . ., Florida Statutes, and Rule 62B-33, F.A.C., [subject to exceptions immaterial to this proceeding.]" Id. The authority so delegated is not without limitation. Among limitations enumerated and express in the Delegations of Authority document is that "[t]the exercise of any delegated authority shall conform with all statutes and rules applicable to the DEP." Id., 3.a. Waivers Pursuant to Delegated Authority Pursuant to the authority over final agency action on CCCL permit applications, Mr. McNeal, as the head of the CCCL Program in the Office of Beaches and Shores, waived the depiction of the location of the vegetation line on the topographic survey drawing, the full dimensions of the Discovery Resort in the adjacent area to the south of the Ray property and the notation of the Distances Perpendicular. He did so because the information contained on the topographic survey drawing was sufficient, in his view, to allow the Department to perform the calculations and analyses as part of the application process that would be served by a review of the topographic survey drawing. An example has been alluded to in this order. Based on years of collective experience, Mr. McNeal and Mr. Tammisetti concluded it was reasonable to assume the vegetation line would be very near the toe of the slope line in relation to the dune bank. Their assumptions were proved correct at hearing. The dimensions and locations of the major structures located immediately north and south of the proposed project (the Pope duplexes and the Discovery Resort structure) and the Distances Perpendicular were required to be included on the topographic survey drawing, but they were not intended by the Rays to establish a Construction Line. Establishment of any such line is governed by Section 161.053(5)(b), Florida Statutes: If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing [the CCCL], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department, if such structure is also approved by the department [and other conditions are met]. A Construction Line The Rays contend in their application and DEP agrees that the Four Structures establish a Construction Line. Once such a line is established provided the structures are not duly affected by erosion, the Department is conferred with the discretion to permit a proposed structure along the line seaward of the CCCL under certain circumstances. See § 161.053(5)(b), Fla. Stat. Among those circumstances, the permit "shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided [by statute.]" § 161.053(5)(b), Fla. Stat. Furthermore, by rule of the Department, written evidence from local government must be provided that the location of the proposed structure along a Construction Line seaward of the CCCL is consistent with the Local Comprehensive Plan. See Fla. Admin. Code R. 62b-33. Written evidence that Brevard County regards the Rays' proposed site to be consistent with Local Comprehensive Plan and not contrary to local setback requirements or zoning codes was provided by Brevard County to the Department. Establishment of a Construction Line Whether a Construction Line can be established for a proposed project is unique to the project and its coastal location. To establish such a line, the Office of Beaches and Coastal Systems may rely exclusively on information provided by the applicant for a permit to construct along such a line. The Office may also refer to its own database of aerial photographs (as it did in this case) and other data with regard to the State's coastal systems. The Construction Line running across the Ray property accepted by DEP is nearly identical to the 1981 CCCL. In contesting the establishment of the Construction Line, Mrs. Pope makes a number of points, several of which are worthy of discussion. For one, in 1993, the Department considered an administrative challenge brought by Mrs. Pope to the CCCL permit for the construction of the Days Inn Tower (now Best Western) hotel (one of the structures used by the Rays to establish a Line of Continuous Construction). See, OR-1, Pope v. Department of Environmental Protection et al., Agency Final Order dated May 9, 1994, DOAH Case No. 93-4560 (the "1993 Pope Case.) The Pope duplex had been found to be three or four blocks north of the property for which the permit was sought. If her property had been found immediately adjacent to the Days Inn Tower property, Mrs. Pope would have been accorded standing to contest issuance of the permit to the Days Inn Tower applicant. The hearing officer had recommended that Mrs. Pope not be accorded standing under the rule because her duplex property was not "immediately adjacent" to the Days Inn Tower parcel. Since Mrs. Pope's parcel was separated by at least what has been identified in this proceeding as the Ray property and the property of the Discovery Resort, she did not qualify for standing under the DEP Rule. Nevertheless, Mrs. Pope was afforded the opportunity to acquire standing by proving that her substantial interests would be affected by issuance of the permit. The hearing officer concluded that her attempt in this regard failed.7 The Department accepted the hearing officer's recommendation that Mrs. Pope be determined to have no standing, in part because her property was not "immediately adjacent" to the Days Inn Tower property. Mrs. Pope also asserts that the Four Structures along the 1981 CCCL do not establish a Construction Line on the basis of the testimony of her witness, Dr. Harris. Dr. Harris opined that the structures to be used to establish the Line of Continuous Construction, if one exists, are not the four used by DEP that are in the area of the Ray property but the structures on the two pieces of property closer to the Ray property, that is, immediately adjacent: the Pope property to the north and the Discovery Resort property to the south. The easternmost point of the structure on the Pope property is approximately 50 feet landward of the 1981 CCCL and extends approximately 100 feet seaward of the Control Line. The structure on the Discovery Resort property to the south is along the Control Line. See Respondents' 7. The line that Dr. Harris would establish does not run parallel to the shore line, the 30-year erosion line, the 1981 CCCL or the Control Line. It would run at an angle of approximately 15 degrees from the easternmost point of the Pope duplexes (the "point of beginning") about 425 feet to the easternmost point of the Discovery Resort structure. The point on the Discovery Resort structure (at the end of the line) is approximately 100 feet seaward of the point of beginning. If these structures are to be considered in the determination of whether a Construction Line exists as Mrs. Pope argues, then continuing the line to include the Four Structures would yield broken lines rather than a reasonably "uniform" and "continuous" line. The Department did not consider the structures in the property immediately adjacent to the Ray property to break the line it determined is established by the Four Structures. It ignored other structures as well between the northernmost and the southernmost of the four structures. Mrs. Pope, therefore, describes the Construction Line established by the Department as "imaginary" and without a factual basis. This point is one of opinion. The Construction Line is neither imaginary nor without a factual basis. It has a factual basis in precisely the data used by DEP: the aerial photograph that shows four major structures between Monuments R013 and R017, Respondents' 7, along the 1981 CCCL. The disregard for the Pope duplexes and the Discovery Resort structure as well as other structures in the areas north and south of the Ray property is a matter that falls within professional opinion and Department expertise. The establishment of the Construction Line is justified by the data DEP examined: Respondents' 7 (on which the Four Structures were identified and circled by Mr. Tammisetti at hearing.) The greater weight of the evidence is that DEP's determination of the establishment of the Construction Line should not be disturbed. It is, moreover, not surprising that such a line exists. One would expect that structures built after 1981 but before 1986 would be located along the 1981 CCCL and that structures that followed (such as the Discovery Resort structure) would be built along that Construction Line. Post-establishment of a Construction Line Establishment of a Construction Line does not entitle an applicant to a permit to build along that Construction Line. After a Construction Line is accepted by DEP as established, an applicant must satisfy three remaining sets of conditions expressed in Section 161.053(5)(b), Florida Statutes. Section 161.053(5)(b), Florida Statutes A discretionary exercise Once a Construction Line is established, an application for a permit to allow a proposed structure is subject to the discretion of the Department: "a proposed structure may, at the discretion of the department, be permitted along such line on the written authorization of the department, if such structure is also approved by the department." ii. Local Requirements The Department has no such discretion, however, if the construction or activity would "contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than . . . requirements [in chapter 161]." Id. To this list, the Department, by rule, has added consistency with state-approved Local Comprehensive Plans. See Fla. Admin. Code R. 62B- 33.008(4)(d). Before exercise of department discretion and inquiry into compliance with local requirements, there is a more fundamental condition that must be demonstrated by the applicant: the existing structures that establish the Construction Line must not have been unduly affected by erosion: If in the immediate contiguous or adjacent area a number of existing structures have established a [Construction Line], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line . . . [h]owever, the department shall not contravene [local requirements] . . . equal to, or more strict than, those requirements herein. § 161.053(5)(b), Fla. Stat. Unduly Affected by Erosion The parties differ in their view of the testimony and evidence introduced at hearing with regard to whether structures that establish the Construction Line "have not been unduly affected by erosion." Id. Neither DEP employees nor the Rays' witnesses visited the shoreline between R0-13 and R-017 to evaluate the four structures that establish the Construction Line and the effects of erosion, if any.8 Mrs. Pope asserts in her Proposed Recommended Order, "[n]o evidence or testimony was offered as to whether the structures considered by DEP were affected by erosion." Petitioners' Proposed Recommended Order, p. 24. In contrast, Respondents cite to the testimony of Mr. Boehning and Respondent's 7 with the assertion, "[t]he existing structures, which form the line of continuous construction, have not been unduly affected by erosion." Respondents' 7 supports the claim of Respondents. It reveals a distance perpendicular from the Construction Line to the dark, wet sand along the shore to be approximately 275 feet. This distance encompasses white sandy beach that is approximately 175 feet and a vegetated area that is approximately 100 feet. The finding that the structures that establish the Construction Line are not unduly affected by erosion does not mean that there are not erosion problems in the area. In fact, as found earlier in this order, the beach depicted on Respondents' 7 is "critically eroding." The stretch of beach depicted in the aerial photograph that is Respondents' 7 has undergone considerable fluctuation since 1963 through erosion and beach nourishment. From 1972 to 2002, for example, the location of the mean high water line at R-015, the monument closest to the Pope and Ray properties, has varied by 206 feet from a low in September of 1972 to a high of 369.3 feet in April of 2001. Dr. Harris wrote this in a report introduced into evidence: The beach profile data show that at R-15 the beach and dune are subject to erosion. From 1972 to 2002 the variation in the MHW shoreline position was 206 feet. Beach nourishment and inlet sand by-passing operations were performed between some of the time periods, and are largely responsible for the periodic beach and dune widening. Even with the beach nourishment project, dune erosion continues to be a problem, and although the recent beach nourishment project greatly widened the beach, the position of the dune remained the same. The FDEP design wave height elevation for a 100-year storm is 14.2 feet NGVD for R-15, which is higher than the existing dune elevation. This means that the upland properties would experience storm surge, flooding and wave action during a 100-year storm. Pope 16. Projects of beach nourishment (placement of sand through human activity) were performed in 1972, 1986 and 2001. The need for beach nourishment and re-nourishment reinforces the status of the beach near R-015 as "critically eroding" and underscores the importance of protecting as much of the dune system as possible. That the beach is critically eroding is not inconsistent with a finding that the structures that establish the Construction Line are not unduly affected by erosion. Whether or not due to the 1986 and 2001 nourishment projects, the evidence of record is that, despite the status of the beach as critically eroding, the structures that establish the Construction Line are not unduly affected by erosion. Not Contrary to Local Requirements On December 30, 2002, a site-plan approval was issued by Brevard County with regard to "RAY CONDOS aka MICHELINA CONDOMINIUM" with a site address of "420 Harding Avenue, Cocoa Beach, FL 32931." Respondents' 1, Vol. 1, Tab 12, second page. Signed by the designee of the Director, Permitting and Enforcement, the development order is entitled, "BREVARD COUNTY LAND DEVELOPMENT SITE-PLAN APPROVAL" and contains the following: The site plan to which this approval is attached has been reviewed by affected County divisions, departments and agencies and has been determined to comply in general with the Brevard County Code of Ordinances and Comprehensive Plan Elements. * * * It is the responsibility of the Owner/Engineer of Record to contact Office of Natural Resources for a Land Clearing/landscaping Permit Two (2) sets of As-Built drawings must be provided to Land Development prior to the Issuance of a C.O. Id. The development order concludes with a statement related to the vested right of the Rays to develop in accord with the site plan: If a Certificate of Occupancy has not been issued for the principal structure by Dec. 30, 2005 the three (3) year vesting period, beginning with the date of site development plan approval, expires and said site plan shall become Null and Void. Only those phases of the development that have an active and valid building permit may be completed after the three-(3) year time period. Id. The reference in the site-plan approval to the "Brevard County Code of Ordinances" does not include building codes. The reference covers local setback requirements and zoning codes. Mrs. Pope appealed the issuance of the site-plan approval to the Brevard County Board of County Commissioners (the "Board"). Her appeal was heard over three meetings of the Board on May 6, 2003, June 8, 2003, and August 12, 2003. At the conclusion of the August 12, 2003, proceedings on the appeal, the Board voted unanimously to accept the staff recommendation to deny the appeal. An unnumbered resolution of the Board "DENYING THE APPEAL OF JAMES AND CAROLE POPE . . . PERTAINING TO THE MICHELINA CONDOMINIUM SITE PLAN" was produced by Mrs. Pope at the hearing together with the following statement of a Deputy Clerk for the Board: This is to advise that the Office of the Clerk to the Board of County Commissioners does not have any correspondence indicating a copy of the Findings of Fact on Michelina Condominium was forwarded to Mr. or Mrs. Pope. Pope 7. The resolution is signed by the Chairperson of the Board. Immediately below the signature block there appears the following: "(As approved by the Board on August 12, 2003)." Pope 8. The document is not stamped received by the Clerk of the Board or the County Clerk's Office, nor is there other clear indicia that the order has been rendered through a filing with the Clerk's office. On its face, however, appears an undated attestation of a deputy clerk under a seal of Brevard County that appears to attest to the Chairperson's signature. As of the dates of the final hearing in this proceeding, Mrs. Pope had not sought judicial review of the decision of the Board. At hearing, on the strength of the signed resolution denying Mrs. Pope's appeal of the site-plan approval and the site-plan approval, itself, and the apparent finality of the approval, Mrs. Pope was ruled estopped from presenting evidence that the Permit contravened local setback or zoning requirements or was inconsistent with the Local Comprehensive Plan. The establishment of a Construction Line, that the structures establishing the line are not unduly affected by erosion, and the collateral estoppel of Mrs. Pope's claim that construction or activity seaward of the Control Line along the Construction Line is contrary to local requirements, clears the way for the exercise of Department discretion as to whether to issue the permit. Department Discretion The Department's exercise of discretion must, of course, take into consideration the beach and dune system within the fixed coastal cell in which Ray property and the Pope property are located. No other conclusion could be gathered from the statements of legislative intent and the statutory scheme. Lest there be any misunderstanding, the Department has codified its policy statement on such matters: (1) The beach and dune system is an integral part of the coastal system and represents one of the most valuable natural resources in Florida, providing protection to adjacent upland properties, recreational areas, and habitat for wildlife. A coastal construction control line (CCCL) is intended to define that portion of the beach and dune system which is subject to severe fluctuations caused by a 100-year storm surge, storm waves, or other forces such as wind, wave, or water level changes. These fluctuations are a necessary part of the natural functioning of the coastal system and are essential to post-storm recovery, long term stability, and the preservation of the beach and dune system. However, imprudent human activities can adversely interfere with these natural processes and alter the integrity and functioning of the beach and dune system. The control line and 50-foot setback call attention to the special hazards and impacts associated with the use of such property, but do not preclude all development or alteration of coastal property seaward of such line; Fla. Admin. Code R. 62B-33.005, Department Policy Statement on Permits. The exercise of this discretion is guided by criteria under rule. Among those criteria are those found in 62B- 33.005(4)(g): The construction will not cause a significant adverse impact to marine turtles, immediately adjacent properties, or the coastal system unless otherwise specifically authorized in this rule chapter. Chapter 62B-33, Florida Administrative Code, defines the term "Impacts" to include separate definitions for the terms "Adverse Impacts," "Significant Adverse Impacts," "Minor Impacts," and "Other Impacts": "Impacts" are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows: "Adverse Impacts" are impacts to the coastal system that may cause a measurable interference with the natural functioning of the system. "Significant Adverse Impacts" are impacts of such magnitude that they may: Alter the coastal system by: Measurably affecting the existing shoreline change rate; Significantly interfering with its ability to recover from a coastal storm; Disturbing topography or vegetation such that the system becomes unstable or suffers catastrophic failure; . . . * * * (d) "Other Impacts" are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access. Fla. Admin. Code R. 62B-33.002(30). Minimization of Impacts and No Significant Adverse Impacts The site selected on the Ray property for the proposed project poses impacts to Mrs. Pope's duplexes during a storm event such as a 100-year storm. Because of the shore- parallel dimension of the proposed structure (84 feet), storm- generated waves and storm surge would be concentrated into the relatively narrow gap between the proposed structure and the duplexes. The resulting hydrodynamic load would cause scouring of the foundations of the duplexes. The proposed project has "frangible" or "breakaway" ground level walls. They would pose the potential for generating waterborne missiles that, hydro-dynamically propelled, would damage the duplexes. The proposed project was designed in accordance with the American Society of Civil Engineers 7 Code ("ASCE-7") and most pertinently (since referenced in the Construction Line Statute), the Florida Building Code. But the Building Code does not take into consideration a proposed structure's design or proposed site on an adjacent property or the adjacent property's structures. The proposed project, moreover, is not designed and sited to mitigate aerodynamic loading on Mrs. Pope's duplexes. During high-wind conditions, there will be a number of wind effects on the duplexes caused by the proximity of the proposed project: gust loading, high turbulence shedding, and vortex shedding among others that can be reasonably expected to cause structural impacts to the duplexes such as suction loads on roofs and eaves, flying debris and window breakage. The proximity of the proposed structure to the Pope property will have a shading effect that will cause adverse impacts on the growth of native coastal vegetation on the Pope property. As a result, there will be a reduction in the interception of wind-driven sand by the vegetation that enables it to develop healthy, deep root systems that add to dune stability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: an impacts assessment be conducted as required by Florida Administrative Code Rule 33.005(3)(a); that the proposed project be re-sited to mitigate the impacts that its siting now poses to the Pope Property and the Popes' duplexes; that the proposed project be permitted to be constructed up to the Construction Line, provided that the permit is supported by both the impacts assessment and a re- siting of the proposed project to mitigate wind, water and shading impacts; and if the proposed project is not supported by an adequate impacts assessment, or if it cannot be re-sited to mitigate the impacts to the Pope Property, that the permit be denied. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2004.
The Issue Petitioners challenged the Department of Environmental Protection's (Department) preliminary Final Order, alleging that Petitioners committed the "unauthorized clearing and destruction of dunes and dune vegetation for the purposes of constructing a roadway seaward of the coastal construction control line [(CCCL)] without benefit of a permit." The ultimate issue is whether the work Petitioners performed was seaward of the CCCL, and if it was, whether there was a violation of Amended Permit FR-563 and Section 161.053(2), Florida Statutes.
Findings Of Fact Parties Petitioner, Ben Withers, Inc., is a Florida corporation doing business in the State of Florida. Petitioner, Ben Withers, is the President and owner of Ben Withers, Inc., and a resident of Panacea, Florida. (Henceforth, Ben Withers and Ben Withers, Inc., are referred to collectively as "Mr. Withers," unless otherwise noted.) Mr. Withers is a licensed general contractor. The Department is the executive agency of the State of Florida operating pursuant to, among others, Chapter 161, Florida Statutes, and Chapter 62, Florida Administrative Code. Pursuant to Chapter 161, Florida Statutes, the Department administers the CCCL program for construction activities seaward of the CCCL. Coastal Construction Control Line Program The Department's Bureau of Beaches and Wetland Resources regulates construction and excavation activities seaward of the CCCL. The Department is responsible for determining and setting the CCCLs. The CCCL is a scientifically established line pursuant to Section 161.053, Florida Statutes. By definition, the CCCL "defines that portion of the beach-dune system subject to severe fluctuations based on a one-hundred-year storm surge, storm waves, or other predictable weather conditions." Rule 62B-33.002(13), Florida Administrative Code. Construction and excavation activity seaward of the CCCL is regulated by Section 161.053, Florida Statutes, and Rule 62B- 33, Florida Administrative Code. Mr. Withers admitted that he is aware of Department rules regarding beaches and coastal construction and is also aware that excavation seaward of the CCCL requires a permit unless it is otherwise exempt, and that he had this knowledge prior to the present case. Accessing the Pepper Project Site Under Amended Permit FR-563 Dog Island is a barrier island south of and about three miles off the coast of Franklin County, Florida. The island is approximately eight miles in length. There is no bridge to the island. The Pepper project site is on the far western end of the island. The Gulf of Mexico borders the island on the south and St. George Sound borders the island to the north. The most common way to access the Pepper site with any vehicle carrying equipment and materials, would be to use a boat or barge to a marina area (Tyson's Harbor) near the center of the island, or a private dock, and then traverse west down the middle of the island or down the beach itself, or a combination of the two. The Easy Street Easement is an easement area for a roadway running east and west through Dog Island. The parties agree that Easy Street and the Easy Street Easement are the same. The Easy Street Easement had been an unpaved roadway years before; part of the roadway was still visible in May 2001, and other parts had been covered with vegetation. There are portions of Easy Street and Easy Way east of the cul-de-sac which are visible roadways. See, e.g., Department Exhibit 13. Additionally, parts of Easy Street are seaward of the Department's CCCL (e.g., in the narrows area which is west of the cul-de-sac) and other parts are landward of the CCCL. See, e.g., Finding of Fact 29. Pursuant to its statutory duty, in 1996, the Department set the reference monuments R-158-R-160 for the CCCL on the west end of Dog Island. These monuments are in the narrows area of the island and run west to east. The CCCL is not visible on the ground. A surveyor is needed to locate the line. The alleged violation in this case was committed between R-158 and R-160, part of the narrows area. The Easy Street Easement on Dog Island runs both north and south from The Nature Conservancy cul-de-sac and then runs westerly to the west end of Dog Island. The CCCL Permits On October 21, 1999, the Department issued Permit FR-563 to Leonard Pepper, the property owner, for the construction of a single–family dwelling and for structures associated with the dwelling on the west end of Dog Island. Permit FR-563 contained Standard Permit Conditions that required in part: (1)(a) all construction or activity for which the permit was granted be carried out in accordance with the plans and specifications which were approved by the Department as a part of the permit; (1)(b) all construction or activity authorized under the permit shall be conducted using extreme care to prevent any adverse impacts to the beach and dune system; and (1)(g) existing beach and dune topography and vegetation shall not be disturbed except as expressly authorized in the permit. Permit FR-563 did not authorize the start of construction until a construction access plan to the Pepper project site was approved, in order to minimize impacts to the beach and dune system. On October 16, 2000, Amended Permit FR-563 was issued with a Notice to Proceed Withheld. The Amended Permit also contained Special Condition 1.5 which required the submittal and approval of "[a] construction access plan showing the route and timing for bringing equipment and materials to the site, in order to minimize impacts to the beach and dune system." The Department was concerned about the manner in which equipment and materials would be brought to the project site without causing further harm to the system. Amended Permit FR-563 did not expressly or implicitly authorize excavation or grading seaward of the CCCL in any area on Dog Island off of the project site and footprint of the house. In late 2000, Mr. Withers became involved with the Pepper project after Amended Permit FR-563 (with the Notice to Proceed Withheld) was issued on October 16, 2000. Part of Mr. Withers' job responsibility was to prepare and submit a construction access plan to the Department for approval. The Department does not normally require an access plan because most job sites are located in areas with established roads for ingress and egress. Here, there was no established road to and from the project site. The access plan was necessary in order to determine how Mr. Withers would transport equipment and materials to the Pepper project site on the west end of Dog Island due to the site's remote location and the absence of an established roadway to the site. Mr. Withers expected that materials and heavy equipment, including cranes, would be off-loaded at Tyson's Harbor, located approximately in the middle of Dog Island, and transported by vehicle to the project site along the access plan route. He expected to only transport pilings using the beach access route. On March 15, 2001, Mr. Withers submitted an access plan which described the route Mr. Withers would traverse by vehicle with construction equipment and materials. See Endnote 1. The Easy Street Easement starts at the east end of the island as an established roadway. Proceeding in a westerly direction, Easy Street comes to a dead-end at a cul-de-sac landward of the CCCL. The access plan authorized Mr. Withers to access the job site using part the Easy Street/Easy Street Easement (starting on the east end of the island) going north from The Nature Conservancy cul-de-sac, then heading in a westerly direction just south of the Ausley house (west of R-158 and just landward of the CCCL) and across the narrows area and continuing in a westerly direction along the northern shoreline and in southerly direction toward R-154. The access plan then authorized Mr. Withers to proceed in a westerly direction over the middle portion of the west-end of the island, then in a southerly direction toward the project site.1 The access plan showed a route both landward and seaward of the CCCL along the narrows area. See Department Exhibit 4- orange line then blue line after the orange circle on the west-end of the island. As described by Mr. McNeal of the Department, the access route is seaward, for the most part, of the CCCL from R-157 to R- 159 (running west to east) and landward of the CCCL east of R-159. The Department described the damaged area of 5,305.6 square feet (Department Exhibit 11A, insert "B") caused by Mr. Withers as east of R-159 and seaward of the CCCL and south of the access plan route. See also Finding of Fact 35. However, it appears that a portion of Easy Street, between R-159 and R-160, is seaward of the CCCL. Compare Department Exhibit 12 with Department Exhibits 4, 11A, and 13. During a pre-hearing deposition, Mr. Withers marked in pink the route he took through a portion of the narrows area which coincides with the portion of Easy Street between the approximate locations of R-159 and R-160, depicted on Department Exhibit 12. See Finding of Fact 43. (Mr. Withers had the Easy Street Easement staked prior to doing any work on Dog Island. See Findings of Fact 33-35.) The damaged area appears to coincide with this portion of Easy Street, and seaward of the CCCL. See Department Exhibit 11A. The access plan authorized Mr. Withers to drive (vehicular traffic) his equipment over the easement following the route depicted on the access plan until he arrived at the project site. See Endnote 1. The Department expected that travel along the access route would cause minimal and temporary damage or destruction to the topography, so the plan was considered acceptable. The access plan did not authorize excavation of a roadway within the route, including the narrows area, nor did it contemplate any other activity over or around a dune other than what might occur as a result of driving.2 The Department understood that Mr. Withers would be driving daily over the access plan route to the project site. The Department assumed that trucks would be used to transport equipment and materials. The Department did not differentiate among vehicles which could be used, including large trucks. On April 11, 2001, the Department issued a Notice to Proceed to Mr. Pepper to begin construction of his single-family dwelling in accordance with Amended Permit FR-563. The access plan is part of the Amended permit. Shortly after the Notice to Proceed was issued, The Nature Conservancy advised the Department of concerns it had with the access plan. As a result, on April 24, 2001, there was a meeting in Apalachicola, Florida, convened by the Department and attended by other interested governmental entities and private persons, including Mr. Withers. The purpose of the meeting was explore other possible ways and means of access by Mr. Withers to the Pepper project site.3 No resolution was reached during the meeting and the access plan previously approved by the Department remained effective. The previously issued Notice to Proceed was also in effect. The Violations Mr. Withers hired Kenneth Greenwood of Garlick Environmental Associates to perform a threatened/endangered species inspection, plant and animal, on an approximately 30-foot wide strip on the Easy Street Easement (approximately 1,800 feet) being utilized in Mr. Withers' access plan and within the narrows area. See Department Exhibit 13-yellow markings. On May 2, 2001, Mr. Greenwood performed the inspection within the easement that Mr. Withers had staked out by a land surveyor, approximately 15 feet on either side of the stakes. He found no threatened/endangered species. (The CCCL was not staked by Mr. Withers because, according to Mr. Withers, the Department did not ask him to locate the CCCL with stakes.) The access route depicted by Mr. McNeal in orange on Department Exhibit 4, which runs east of R-159, is similar to the description of the staked areas east of R-159, described by Mr. Greenwood and marked in yellow on Department Exhibit 13. See Findings of Fact 28-29. Both areas are landward of the CCCL. However, the 5,305.6 square foot damaged area is east of R-159 and is seaward of the CCCL. Mr. Greenwood described the area where he performed his investigation as being "relatively undisturbed," "relatively stable," having no vehicle tracks, and he stated that there were areas of bare sand as well as areas of "natural beach dune vegetation." He described the area as "relatively flat with some small amounts of mounding." The pictures taken by Mr. Greenwood within the staked easement on May 2, 2001, as part of his investigation, do not depict any vehicle tracks. After Mr. Greenwood completed his investigation on May 2, 2001, he observed Mr. Withers landward of the CCCL on a front-end loader and north of the cul-de-sac, proceeding west along the Easy Street Easement scraping off the top layer of soil and heading in a westward direction. Mr. Greenwood believed that the activity performed by Mr. Withers at this time was consistent with unpaved, road construction. According to Mr. Greenwood, the width of the scraped area appeared to be approximately the width of the bucket on Mr. Withers' front-end loader. Mr. Withers stated that he was doing minor grading landward of the CCCL with a John Deere 310-E front-end loader tractor when Mr. Greenwood was present on May 2, 2001. This tractor had a front bucket (approximately seven to eight feet wide) and a backhoe for excavating dirt on the back-end. Mr. Withers described the work which he performed when Mr. Greenwood was present as moving out and smoothing off the top of the sand landward of the CCCL in order for his equipment to get through. Mr. Withers also stated that he made areas in the easement seaward of the CCCL smooth by using the bottom of the bucket of his front-end loader to move sand around. Mr. Withers mentioned that he was very concerned that he needed to have the pathway he was utilizing in the access plan marked and smoothed off and fairly level. He believed the access plan authorized him to smooth off the areas on the access route. Mr. Withers stated that he had to have the access path level because he was bringing a self-propelled, 25-ton crane down the access path and they are top heavy and can get off balance, topple over, or get stuck. Mr. Withers described two types of work that he performed in the Easy Street Easement as: 1) clearing landward of the CCCL that required scooping and moving dirt, and 2) smoothing several areas seaward of the CCCL, just east of R-158 to around R- 160. An area of excavation damage seven feet seaward of the CCCL (beginning approximately 130 feet east of R-158) and an area 41 feet seaward of the CCCL (beginning at R-159, continuing east approximately 500 feet) are located within the area Mr. Withers stated he did some "smoothing off areas," again, east of R-158 and continuing east toward, but west, of R-160. Mr. Withers believed that Amended Permit FR-563 allowed him to use the Easy Street Easement in the access plan "to do . . . whatever was necessary and . . . needed to get [his] equipment, access [his] equipment down to the job site." He also admitted smoothing the areas. Mr. Withers also stated that Amended Permit FR-563 granted him permission to access the west end of Dog Island. Therefore, there was no need for him to locate the CCCL. Mr. Withers referred to the easement in the access plan as turning into a good pathway after he smoothed the areas. Mr. Withers stated that it was his "intention to gain access to the west end of Dog Island through a legal easement and an existing roadway" and that he wanted to utilize it. Mr. Withers testified "that he knew a lot of roads on Dog Island crossed seaward of the [CCCL]" in response to questioning whether he knew at the time of his performing work on the easement, whether or not the Easy Street Easement crossed seaward of the CCCL. He knew he was going to be traversing "fairly close" to the CCCL. Mr. Withers stated he did not knowingly violate the conditions of the Amended Permit. Mr. Withers was aware of the Department's permit requirements for work seaward of the CCCL when he performed his access work in the easement on Dog Island. However, Mr. Withers never had a survey done to figure out where the CCCL was located. Notice of the Alleged Violations Around May 2, 2001, the Department received a complaint that excavation was occurring seaward of the CCCL on Dog Island in the narrows area of the Easy Street Easement. On May 4, 2001, John A. Poppel, William Fokes, and Phil Sanders went to Dog Island on behalf of the Department to investigate the complaint of excavation in the narrows area seaward of the CCCL. On May 4, 2001, Mr. Poppel performed a survey of the narrows area and located the CCCL. He located monuments R-158- R-160. Department Exhibit 11. As a product of his survey, Mr. Poppel was able to depict the newly excavated roadway or pathway in relation to the CCCL. Mr. Poppel calculated that one area of damage was seven feet seaward of the CCCL and consisted of 503.8 square feet of damage and a second area of damage was 41 feet seaward of the CCCL and consisted of 5,305.6 square feet of damage. These square foot areas represent only the disturbed areas seaward of the CCCL, not the entire area between the CCCL and the Gulf of Mexico. Both areas of damage are within the area where Mr. Withers stated that he smoothed out the sand. As part of the May 4, 2001, investigation, William Fokes, an Engineer I with the Department, took photographs of the damaged areas and prepared an inspection report. Mr. Fokes' report indicates that an approximately 11-foot wide roadway or pathway had been cleared by excavation with the most seaward extent of the road being about 40 feet seaward of the CCCL. In addition, the report states that small dunes and beach vegetation had been destroyed. Mr. Fokes described the damage as excavation or grading done by some kind of machine, which cut and uprooted vegetation and pushed sand to the side as it leveled the ground. Mr. Fokes testified that the damage did not appear to be caused by merely traversing the area. Mr. Sanders, an engineer with the Department, processes CCCL permit applications and supervises Mr. Fokes, a field engineer. On May 4, 2001, Mr. Sanders observed the narrows area in question and confirmed that it looked like a "graded road" in that "[i]t appeared in the road bed that vegetation was gone and had been pushed out to the side, graded away," and that there was "excavation" seaward of the CCCL. Mr. Sanders stated that this activity did not comply with the approved access plan. On May 7, 2001, a Notice of Violation was issued to Mr. Withers for the "the unauthorized clearing and destruction of dunes and native vegetation for the purpose of constructing a roadway seaward of the coastal construction control line." Mr. Greenwood's photographs taken May 2, 2001, when compared with Mr. Fokes' photographs taken May 4, 2001, show that no discernable roadway or pathway was present landward or seaward of the CCCL in the narrows area at the time of Mr. Greenwood's inspection on May 2, 2001. This is evident when comparing Mr. Greenwood's photograph, Exhibit 15a, taken on May 2, 2001, with Department Exhibit 16g taken on May 4, 2001--the roadway or pathway present in the May 4, 2001, photo is absent in the May 2, 2001, photograph, and the vegetation has been removed from part of the area. Comparing Mr. Greenwood's photograph, Department Exhibit 15b, taken May 2, 2001, with Department Exhibits 16c and d, taken on May 4, 2001, also shows that the roadway or pathway was not present on the narrows portion of the Easy Street Easement at the time of Mr. Greenwood's inspection. The previously mentioned pictures, which were used for a comparison, were taken by two different people on separate dates, and from approximately the same locations. Also, Department Exhibit 16j was taken 250 feet east of R-159 and within the narrows area, facing east which shows clearing approximately 40 feet seaward of the CCCL. On May 14, 2001, at the request of the Department, Ken Jones, a principal engineer with Post Buckey et al., performed a damage assessment of the narrows portion of the Easy Street Easement which was seaward of the CCCL. Mr. Jones has a bachelor's degree in civil engineering and a master's degree in physical oceanography. Mr. Jones was familiar with the narrows area having been to Dog Island for recreation during the past 20 years and as a Dog Island property owner for the last three years. Mr. Jones described the narrows area as relatively flat and located between the St. George Sound to the north and the Gulf of Mexico beaches to the south. Between these two areas, the land is undulating sand and fairly consistent vegetation. At the time of Mr. Jones' damage assessment, he determined that a road had been cut through the vegetative portion of the dune of the narrows. Mr. Jones observed cut roots and a majority of the vegetation destroyed. Mr. Jones stated it appeared that the damage was caused by a vehicle with a blade on the front. The result was the road sat down in the sand approximately four to six inches. Mr. Jones stated that the work appeared to have been recent because distinct edges were still present. Mr. Jones took photographs and compiled an inspection report as part of his damage assessment. Mr. Jones testified that the damage "was pretty consistent from both landward and seaward of the [CCCL]." The pictures labeled Department Exhibits 18a1 and 18a2 depict a level pathway or roadway barren of vegetation seaward of the CCCL. Department Exhibit 18a4 is a photograph of a typical vegetated dune. Mr. Jones took this picture in order to have a general idea of what the vegetation coverage was in order to get an idea from a cost-estimating perspective. Mr. Jones's cost estimate for repairing the damage to the narrows area seaward of the CCCL, was approximately $7,500.00.4 Mr. Jones calculated the $7,500.00 by making an estimate of what it would cost to buy coastal vegetation, and by estimating what it would cost to employ laborers to hand rake the sand back into position and to plant the vegetation. Administrative Fine and Damages Jim Martinello, an environmental manager in charge of enforcement and compliance with the Bureau, used Mr. Jones' damage assessment estimate for informational purposes in assessing the damages amount for the narrows area. Mr. Martinello calculated the administrative fine and damages in accordance with Section 161.054, Florida Statues, and Rules 62B-54.002 and 62B-54.003, Florida Administrative Code. Rule 62B-54.002, Florida Administrative Code, provides that the Department shall assess fines for willful violations of, or refusing to comply with, for example, Section 161.053, Florida Statutes, and the fine should be sufficient to ensure immediate and continued compliance. In determining the actual fine within the range, the Department shall consider the offender's past violations, if any, and other aggravating or mitigating circumstances. Aggravating circumstances include prior knowledge of rules. Mitigating circumstances may be considered. Id. Mr. Withers had knowledge prior to the issuance of Amended Permit FR-563 of Department rules regarding permit requirements for construction activities seaward of the CCCL. On October 4, 1996, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible unauthorized construction seaward of the CCCL. This matter was resolved by entering into a consent order. On October 29, 1997, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible permit violation seaward of the CCCL. On November 13, 1997, Mr. Withers was issued a warning letter for possible unauthorized construction seaward of the CCCL. On October 27, 2000, Mr. Withers wrote a letter to Mr. McNeal indicating that he believed that the Easy Street Easement on Dog Island heading south from The Nature Conservancy cul-de- sac, then west to the west end of Dog Island, is landward of the CCCL and, therefore, no permit was necessary to reopen and use the easement, but he would have a surveyor establish the control line prior to work commencing. On November 7, 2000, Phil Sanders replied by letter to Mr. Withers' October 27, 2000 letter, in which Mr. Sanders reminded Mr. Withers of the pertinent rules and laws and suggested that Mr. Withers have the CCCL surveyed. On December 20, 2000, Mr. Martinello sent Mr. Withers an advisory letter informing him that the area he traversed (on July 2000) on the south route of the Easy Street Easement from the cul- de-sac on Dog Island was considered to be a dune as defined by Rule 62B-33.002, Florida Administrative Code. However, Mr. Martinello further advised that the Department did not take any action because "the traversing [did not] cause any substantial damage, it was minimal damage." In regard to the present case, it is more than a fair inference that Mr. Withers had specific knowledge of the CCCL and the Department's laws and rules, and that he knew excavation was not authorized seaward of the CCCL. The information in the prior Findings of Fact was used by the Department, and specifically Mr. Martinello, to determine that the harm to the beach resource or potential harm was major, and the administrative fine assessed was $7,500.00. However, part of Mr. Martinello's determination was predicated on Mr. Jones' assessment that the site one narrows violation was approximately 700 feet in length when, in fact, the area was approximately 500 feet in length, which explains in part the disparity between a 9,800 square foot area and the proven 5,305.6 square foot area. See Finding of Fact 78 and Endnote 4. Even the additional amount of damage of 503.8 square feet for the site two narrows area, when viewed in the aggregate, is significantly less than Mr. Jones' assessment of damages by square feet. (Mr. Martinello used the Jones' assessment as a guideline. Mr. Martinello says that the mistake did not alter his decision, although he was unaware of the mistake until the final hearing. He also says that Mr. Jones recommended a higher damage amount than the $5,000.00 assessed by the Department in its preliminary Final Order. He did--$7,500.00 for 9,800 square feet of damage.) Grossly negligent or knowing violations of statutes and Department rules regarding coastal construction seaward of the CCCL, which result "in harm to sovereignty lands seaward of mean high water or to beaches, shores, or coastal or beach-dune system(s), including animal, plant or aquatic life thereon," shall be considered in determining damages. Rule 62B-54.003(1), Florida Administrative Code. Rule 62B-54.003(2), Florida Administrative Code, provides that a damage amount greater than the minimum amounts may be assessed to ensure, immediate and continued compliance and the Department may consider, e.g., the need for restoration and the damaged ecological resource. The Department determined that the violation was knowing based on the factors mentioned above. The Department also considered the need for restoration and the damage to ecological resources and whether the amount would ensure immediate and continued compliance. Id. The Department determined that there was harm to the resource and that it was major and knowing. The Department proposed to assess the minimum damage amount of $5,000.00. On January 11, 2002, the Department entered a preliminary Final Order for the unauthorized grading and destruction of dunes and dune vegetation seaward of the control line for the purpose of constructing a roadway. The amount assessed in the Final Order was $12,500.00, $7,500.00 in administrative fines and $5,000.00 in damages, as described above. As noted, there has been harm to the beach area resource seaward of the CCCL and the Department proved the need for restoration and the damage to the ecological resource. In mitigation, Mr. Withers' construction access plan was approved by the Department. The Department knew that Mr. Withers intended to use the access route, which ran seaward of the CCCL from approximately R-157 to R-159 (except for a small portion between R-158 and R-159) in the narrows area; that Mr. Withers planned to transport equipment and materials by truck using the access route and necessarily would traverse seaward of the CCCL; and that he would continuously use the access route until the project was completed. The actual damaged area is less than originally determined by Mr. Jones, thus the need for restoration reduced. Mr. Jones, without the benefit of a survey, estimated the total cost to restore the damaged area of 9,800 square feet to be approximately $7,500.00. The total square feet of damage proven in this proceeding is 5,809.4 square feet in the narrows area and the Department is requesting $12,500.00 in fines and damages. Based on an approximate ratio of square feet and dollars needed to restore, a damage assessment in the amount of $4,500.00 is appropriate. Balancing the aggravating and mitigating circumstances, a fine of $3,500.00 is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: That a final order be issued adopting this Recommended Order; and Within 30 days of a final order being effective, Petitioners shall pay a fine of $3,500.00 and $4,500.00 in damages with the total amount of $8,000.00, to the Department of Environmental Protection. DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2003.
