The Issue The issues are whether Respondent violated section 112.313(6), Florida Statutes (2018), by exhibiting inappropriate behavior toward city staff; and, if so, what is the appropriate penalty.
Findings Of Fact Respondent served as a city commissioner of Madeira Beach from 2007 through March 2013, and was reelected to the office in March 2017. Shane Crawford served as the city manager of Madeira Beach from January 2012 through July 2017. Cheryl McGrady Crawford served as a full-time employee of Madeira Beach in different capacities: intern for the planning and zoning coordinator; in the building department; and city clerk. In addition, she served as the executive assistant to then-City Manager Shane Crawford from September 2012 through February 2017, where her job responsibilities included acting as deputy clerk when the city clerk was unable to attend a function or meeting. David Marsicano has been serving as Madeira Beach’s public works and marina director for 17 years. Travis Palladeno served as the mayor of Madeira Beach from 2011 through 2017. Terry Lister served as a city commissioner of Madeira Beach from 2008 through 2018. Francine Jackson was a Madeira Beach employee for approximately 11 years. Her last position was as the assistant to Public Works Director Marsicano from 2012 through 2014. Thomas Verdensky is the president of the Old Salt Foundation, which is a volunteer organization. Joseph Campagnola is a retired 13-year New York City police officer who has volunteered as head of security (coordinates sheriff’s department and personal guards) for Old Salt Foundation events for the past nine years. Nicole Bredenberg was present at the November 3, 2012, Madeira Beach City Commission (“City Commission”) meeting. Respondent is subject to the requirements of chapter 112, part III, the Code of Ethics for Public Officers and Employees, for her acts and omissions during her tenure as a city commissioner of Madeira Beach. See § 112.313(6), Fla. Stat. and City Charter Section 2-31 Duties and Responsibilities. As a city commissioner of Madeira Beach, Respondent took an oath “to faithfully perform the duties of [her] office and the Constitution of [sic] the laws of the State of Florida and the United States of America.” As a city commissioner of Madeira Beach, Respondent was prohibited from interfering with administration as provided: “The Board of Commissioners nor any member thereof shall give orders to any subordinate or Officer of said City, either publicly or privately, directly or indirectly.” As a city commissioner, Respondent’s responsibilities included attending City Commission meetings, regular or special. At the City Commission meetings, the city clerk is responsible for taking the meeting minutes. If the city clerk is unavailable, a substitute is needed or the meeting cannot be held. Mr. Palladeno told the new Madeira Beach city manager, Shane Crawford, that he wanted an outdoor meeting since they are a beach community. In November 2012, an outdoor City Commission meeting was held in conjunction with the King of the Beach Tournament, a fishing tournament occurring biannually in Madeira Beach. The meeting was to recognize Bimini, Bahamas, as Madeira Beach’s sister city with a presentation of a key to the city and a proclamation. The King of the Beach Tournament is organized by the Old Salt Fishing Foundation. The event was held on a baseball field having field lights, which turned on as it started to get dark. Respondent was present at this event in her official capacity to participate in the meeting. She had consumed alcohol at the all-day fishing tournament. Then-city clerk, Aimee Servedio, could not attend this meeting, so a substitute was required or the meeting could not go forward. Ms. McGrady (prior to her becoming Ms. Crawford) had been assigned the role of deputy clerk and was prepared to take minutes. Respondent dislikes Ms. Crawford because she believed, without any proof produced at hearing and a firm denial at hearing by Ms. Crawford, that she and Shane Crawford were having an affair at the time of the meeting at issue, which was prior to their marriage. The City Commission could not start the meeting the evening after the tournament because Respondent refused to go on stage due to Ms. McGrady’s role as deputy clerk. There was a heated discussion between Shane Crawford, Ms. McGrady, and Respondent. Respondent actually refused to attend the meeting if Ms. McGrady was present, and demanded that she be removed from the area. Mr. Palladeno and an official Bimini representative were in the vicinity of the heated discussion. Referring to Ms. McGrady, and in her presence, Mr. Palladeno heard Respondent say, “You need to get that f[***]ing b[itch] out of here.” Mr. Palladeno rushed in to move the Bimini representative away from the situation. Lynn Rosetti, who at that time was the planning and zoning director, had to fill in because Respondent refused to attend the meeting if city employee, Ms. McGrady, was allowed to substitute for the city clerk. Respondent’s actions interfered with Ms. McGrady’s job duties. After the meeting was over, Respondent approached Shane Crawford with Ms. McGrady, David Marsicano and his then- wife Shelley, and Nicole Bredenberg also in the immediate area. Using her tongue, Respondent licked City Manager Shane Crawford up the side of his neck and face. This act was witnessed by Ms. McGrady, Mr. Marsicano, Mr. Bredenberg, and Mr. Verdensky. Respondent then groped City Manager Shane Crawford by grabbing his penis and buttocks. This act was witnessed by Ms. McGrady and Mr. Bredenberg. Respondent then threw a punch at Ms. McGrady after she told Respondent that her actions were inappropriate. Mr. Marsicano’s ex-wife intervened and confronted Respondent. Mr. Verdensky, who testified that he had been licked by Respondent on a different occasion, called for the head of security, Joseph Campagnola. Mr. Campagnola arrived between one to two minutes after the call. By the time he arrived, Respondent was walking away. However, he found Shane Crawford, Ms. McGrady, and Ms. Marsicano. He was told by Mr. Crawford that Respondent licked his face and grabbed him, which was corroborated by Mr. Marsicano and Ms. McGrady. Mr. Marsicano, who testified he had also been licked by Respondent on a different occasion, has a distinct memory of Respondent’s actions at the November 2012 City Commission meeting because of the “disruptions and shenanigans” that happened before, during, and after the meeting. He had to lead his wife away because she was so upset with Respondent. Mr. Marsicano also testified that he witnessed the face-licking of Mr. Crawford by Respondent. He subsequently spoke with Francine Jackson about what happened at that meeting. Ms. Jackson was not present for the November 2012 City Commission meeting. However, that following Monday or Tuesday, she discussed the weekend with Mr. Marsicano and was informed by him that Respondent licked Mr. Crawford’s face. Ms. McGrady was placed in a predicament when Respondent’s animosity towards her became overt and physical. Respondent created a hostile environment and employees were rightfully fearful of retaliation if they reported Respondent’s actions. Robin Vander Velde is a former city commissioner of Madeira Beach and has known Respondent since 2007. Ms. Vander Velde was outraged about an ethics complaint being filed against her very good friend of ten years. Present in her capacity as a city commissioner at the November 2012 meeting, her recollection of the events was foggy, at best. Ron Little is Respondent’s best friend of 20 years and Ms. Vander Velde’s boyfriend. He honestly acknowledged that it is a given that he would want to help Respondent. Mr. Little was unaware of Respondent’s Driving under the Influence (“DUI”) arrest, petit theft arrest, alleged participation in a United States Postal Service (“USPS”) mail hoax, and the reasons why she left her City of Clearwater employment. Elaine Poe is a former city commissioner of Madeira Beach. Ms. Poe was unaware of Respondent’s petit theft arrest, alleged participation in a USPS mail hoax, and why she left her City of Clearwater employment. While Ms. Poe was at the November 2012 meeting, she did not recall the meeting starting late. Jim Madden is a former city manager of Madeira Beach. He was also unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Doreen Moore was unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Linda Hein met Respondent in 2016. She was unaware of Respondent’s petit theft arrest. Originally, Ms. Hein did not remember attending the November 2012 meeting until her memory was refreshed; regardless, she could not provide eyewitness testimony concerning the alleged licking incident. Michael Maximo, is the former Madeira Beach community services director. He testified he had been licked by Respondent on a different occasion, during the soft opening of a Bubba Gump’s Restaurant in John’s Pass Village. He recalled the details of the specific incident and said Respondent was inebriated at the time, and she came over to him and licked his face and neck in the presence of her husband, who quickly escorted her from the building. Mr. Maximo refuted the testimony of Respondent’s witnesses as his knowledge of Respondent’s reputation in the community was as a “fall down drunk,” who should not be representing the community. This was a different picture from the one painted by Respondent’s friends who, while admitting she liked to have a drink or several with them and others, they could not imagine her licking someone in public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order finding that Respondent, Nancy Oakley, violated section 112.313(6), Florida Statutes, and imposing a public censure and reprimand and a civil penalty of $5,000. DONE AND ENTERED this 7th day of December, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2018. COPIES FURNISHED: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Elizabeth A. Miller, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399 (eServed) Millie Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
The Issue The issue to be determined in these consolidated cases is whether the U.S. Army Corps of Engineers (“Corps”) and the City of Sarasota (“City”) (sometimes referred to as “the Applicants”) are entitled to the proposed joint coastal permit, public easement, and sovereign submerged lands use authorization (referred to collectively as “the Permit”) from the Department of Environmental Protection (“DEP”) and the Trustees of the Internal Improvement Trust Fund to dredge sand from Big Sarasota Pass and its ebb shoal and place the sand on the shoreline of Lido Key.
Findings Of Fact The Parties Petitioner Siesta Key Association, Inc. is a Florida Not for Profit Corporation, with its principal place of business in Sarasota. The organization has approximately 1,425 members and represents the interests of those who use and enjoy Siesta Key’s beach and waters. A substantial number of its members have substantial interests in the use of the beach and adjacent waters. Petitioner Michael S. Holderness is a resident and property owner on Siesta Key. Mr. Holderness has substantial interests in the protection of his property and the use of the beach at Siesta Key and adjacent waters. Petitioner Save Our Siesta Sands 2, Inc. is a Florida Not For Profit Corporation, with its principal place of business in Sarasota. The organization has over 700 members and was formed in opposition to the current dredging proposal. A substantial number of its members have substantial interests in the use of the beach at Siesta Key and adjacent waters. Petitioners Peter van Roekens and Diane Erne are residents and property owners on Siesta Key. They have substantial interests in the protection of their properties and the use of the beach at Siesta Key and adjacent waters. Respondent City of Sarasota is an incorporated municipality in Sarasota County. It is a co-applicant for the Permit. Respondent Corps is the federal agency responsible for the Lido Key Hurricane and Storm Damage Reduction Project first authorized by Congress in 1970. Under this Project, the Corps has conducted periodic maintenance, inlet dredging, surveys, and bypassing to protect Lido Key’s shoreline. The Corps is a co-applicant for the Permit. Respondent DEP is the Florida agency having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of chapters 161, 373, and 403, Florida Statutes, and rules promulgated thereunder in Titles 62 and 62B of the Florida Administrative Code, which pertain to the permitting of construction activities in the coastal zone and in surface waters of the state. DEP acts as staff to the Board of Trustees of the Internal Improvement Trust Fund. Intervenor Lido Key Residents Association is a Florida Not for Profit Corporation incorporated in 1980 and with its principal place of business in Sarasota. The organization represents the interests of regular users of Lido Key Beach. A substantial number of its members have substantial interests in the use of the beach at Lido Key and adjacent waters. The Project Area Lido Key is a 2.6-mile-long, manmade barrier island constructed in the 1920s, located on the Gulf of Mexico and within the City of Sarasota. North of Lido Key is New Pass, a navigation channel that separates Lido Key from Longboat Key. South of Lido Key is Big Sarasota Pass and the ebb shoal of the pass. Further south is Siesta Key, a natural barrier island. Sediment Transport In the project area, sand generally drifts along the various shorelines from north to south. There can be sand drift to the north during some storm events, currents, and tides, but the net sand drift is to the south. It is sometimes called “downdrift.” Whatever downdrift conditions existed 100 years ago, they were substantially modified by the creation of Lido Key. For decades, the shoreline of Lido Key has been eroding. Since 1964, the Corps has periodically dredged New Pass to renourish the shoreline of Lido Key. The City has also used offshore sand to renourish Lido Key. These renourishment projects have not prevented relatively rapid erosion of the shoreline. A 2.4-mile-long segment of the shoreline of Lido Key has been designated by DEP as “critically eroded.” The Big Sarasota Pass ebb shoal has been growing and now has a volume of about 23 million cubic yards (“cy”) of sand. The growth of the ebb shoal is attributable to the renourishment projects that have placed over a million cy of sand on Lido Key and Longboat Key. The growth of the ebb shoal has likely been a factor in the southward migration of the main ebb channel of Big Sarasota Pass, closer to the northern shoreline of Siesta Key. Most of the west-facing shoreline at Siesta Key has experienced significant accretion. It is unusually wide for a Florida beach. It was named the best (“#1”) beach in the United States by “Dr. Beach,” Dr. Steven Leatherman, for 2011 and 2017. The Project The federally-authorized Lido Key Hurricane and Storm Damage Reduction Project includes the use of New Pass as a supplemental sand source for renourishing Lido Key. However, the use of New Pass is the subject of separate DEP permitting. The project at issue in this proceeding only involves the renourishment of Lido Key and is named “Lido Key Beach Renourishment and Groins.” The Applicants conducted a study of the ebb shoal to determine whether it could be used as a permanent sand source to renourish Lido Key. The study consisted of an environmental feasibility study and an inlet management program for Big Sarasota Pass and New Pass with alternative solutions. The application for the Permit was a response to this study. The proposed sand source or borrow areas are three dredge “cuts.” Cuts B and D are within the ebb shoal. Cut C extends through the ebb shoal and partly into Big Sarasota Pass. Cut C generally follows an existing “flood marginal channel.” The sand from the cuts would be placed along the central and southern 1.6 miles of Lido Key to fill a beach “template.” The design width of the renourished beach would be 80 feet. The initial placement would be wider than 80 feet to account for erosion. The Permit would have a duration of 15 years. The Applicants’ intent is to initially place 950,000 cy of sand on Lido Key. After the initial renourishment, sand would be dredged from one or more of the three designated cuts about every five years to replace the sand that eroded away, and would probably be on the scale of about 500,000 cy. The numerical modeling of the proposed project assumed the removal of up to 1.3 million cy of sand from the three cuts. One of DEP’s witnesses testified that the Permit authorizes the removal of up to 1.732 million cy of sand. The record does not support that testimony. The Applicants did not model the effects of dredging 1.732 million cy of sand from the ebb shoal and pass. There is insufficient evidence in the record to support an authorization to remove more than 1.3 million cy of sand. Although the total volume of sand in the three cuts is 1.732 million cy, it is reasonable for the dimensions of the cuts and the proposed easement that is based on these dimensions to contain more material than is authorized to be removed, so as to provide a margin to account for less-than-perfect dredging operations. Therefore, it is found that the Permit authorizes up to 1.3 million cy of sand to be removed from the designated borrow areas. The findings of fact and conclusions of law in this Recommended Order that address the expected impacts of the proposed project are based on this finding. The Permit also authorizes the construction of two rubble mound groins at the southern end of Lido Key to stabilize the beach and lengthen the time between renourishment events. The groins are designed to be semi-permeable so that they “leak” sand. There are no seagrasses in the renourishment area and mostly scattered and thin patches of seagrass near the dredge cuts. The Permit requires mitigation for the potential direct impacts to 1.68 acres of seagrasses. To offset these impacts, the Applicants propose to create 2.9 acres of seagrass habitat. The seagrass habitat would be established at the Rookery at Perico Seagrass Mitigation Basin in Manatee County, about 16 miles north of Big Sarasota Pass. The Permit incorporates the recommendations of the Florida Fish and Wildlife Conservation Commission regarding protections for turtles, nesting shorebirds, and manatees. The Permit requires regular monitoring to assess the effects of the project, and requires appropriate modifications if the project does not meet performance expectations. Project Engineering The Corps’ engineering analysis involved three elements: evaluating the historical context and the human influences on the regional system, developing a sediment budget, and using numerical modeling to analyze erosion and accretion trends near the project site. A principal objective of the engineering design for the borrow areas, sand placement, and groins was to avoid adverse effects on downdrift, especially downdrift to Siesta Key. The Corps developed a sediment budget for the “no action” and post-project scenarios. A sediment budget is a tool used to account for the sediment entering and leaving a geographic study area. The sediment budgets developed by the Corps are based on sound science and they are reliable for the purposes for which they were used. The post-project sediment budget shows there would be minimal or no loss of sediment transport to Siesta Key. Petitioners did not prepare a sediment budget to support their theory of adverse impact to Siesta Key. Petitioners object to the engineering materials in the Permit application because they were not certified by a Florida registered professional engineer. DEP does not require a Florida professional engineer’s certification for engineering work submitted by the Corps. As explained in the Conclusions of Law, Florida cannot impose licensing conditions on federal engineers. Ebb Shoal Equilibrium Petitioners’ witness, Dr. Walton, developed a formula to estimate ebb shoal volume equilibrium, or the size that an ebb shoal will tend to reach and maintain, taking into account bathymetry, wave energy, tides, adjacent shorelines, and related factors. In an article entitled “Use of Outer Bars of Inlets as Sources of Beach Nourishment Material,” Dr. Walton calculated the ebb shoal equilibrium volume for the Big Sarasota Pass ebb shoal as between 6 and 10 million cy of sand. The ebb shoal has been growing and is now about 23 million cy of sand, which is well in excess of its probable equilibrium volume. The volume of sand proposed to be removed from the ebb shoal is only about six percent of the overall ebb shoal volume. Dr. Walton’s study of the use of ebb shoals as sand sources for renourishment projects supports the efficacy of the proposed project. Modeling Morphological Trends The Corps used a combined hydrodynamic and sediment transport computer model called the Coastal Modeling System, Version 4 (“CMS”) to analyze the probable effects of the proposed project. The CMS model was specifically developed to represent tidal inlet processes. It has been used by the Corps to analyze a number of coastal projects. Dr. Walton opined that the CMS model was inappropriate for analyzing this project because it is a two-dimensional model that is incapable of accounting for all types of currents and waves. However, a two-dimensional model is appropriate for a shallow and well-mixed system like Big Sarasota Pass. Dr. Walton’s lack of experience with the CMS model and with any three-dimensional sediment transport model reduced the weight of his testimony on this point. Petitioners contend that the CMS model was not properly calibrated or verified. Calibration involves adjustments to a model so that its predictions are in line with known conditions. Verification is the test of a model’s ability to predict a different set of known conditions. For calibrating the hydrodynamic portion of the model, the Corps used measurements of water levels and currents collected in 2006. The model showed a 90-percent correlation with water surface elevation and 87-percent correlation to velocity. Dr. Walton believes a model should exhibit a 95-percent correlation for calibration. However, that opinion is not generally accepted in the modeling community. Model verification, as described by Dr. Walton, is generally desirable for all types of modeling, but not always practical for some types of modeling. A second set of field data is not always available or practical to produce for a verification step. In this case, there was only one set of sea floor elevations available for verification of the CMS model. It is the practice of DEP in the permitting process to accept and consider sediment transport modeling results that have not been verified in the manner described by Dr. Walton. The Corps described a second calibration of the CMS model, or “test of model skill,” as an evaluation of how well the CMS model’s sediment transport predictions (morphological changes) compared to Light Detection and Ranging (“LIDAR”) data collected in 2004. The CMS model successfully reproduced the patterns of erosion and sediment deposition within the area of focus. Petitioners’ expert, Dr. Luther, testified that, over the model domain, the CMS model predictions differed substantially from LIDAR data and believes the discrepancies between the model’s predictions and the LIDAR data make the model’s predictions unreliable. Modeling sediment transport is a relatively new tool for evaluating the potential impacts of a beach renourishment project. Renourishment projects have been planned, permitted, and carried out for decades without the use of sediment transport models. Now, modeling is being used to add information to the decision-making process. The modeling does not replace other information, such as historical data, surveys, and sediment budgets, which were heretofore used without modeling to make permit decisions. Sediment transport is a complex process involving many highly variable influences. It is difficult to predict where all the grains of sand will go. Sediment transport modeling has not advanced to the point which allows it to predict with precision the topography of the sea floor at thousands of LIDAR points. However, the CMS model is still useful to coastal engineers for describing expected trends of accretion and erosion in areas of interest. This was demonstrated by the model’s accurate replication of known features of the Big Sarasota Pass and ebb shoal, such as the flood marginal channels and the bypassing bars. The CMS model’s ability to predict morphological trends assisted the Applicants and DEP to compare the expected impacts associated with alternative borrow locations on the ebb shoal and pass, wave characteristics, and sediment transport pathways. Together with other data and analyses, the results of the CMS model support a finding that the proposed dredging and renourishment would not cause significant adverse impacts. The Applicants extensively analyzed sediment transport pathways and the effects of alternative borrow areas on sediment transport to Siesta Key. Petitioners’ hypothesis is not supported by engineering studies of equivalent weight. The more persuasive evidence indicates that sediment transport to downdrift beaches would not be reduced and might even be increased because sediment now locked in the ebb shoal would reenter the sediment transport pathways. In addition, the proposed dredging may halt the southward migration of the main ebb channel of Big Sarasota Pass, and thereby reduce erosive forces on the interior shoreline of north Siesta Key. Wave Energy Petitioners assert that the proposed dredging would result in increased wave energy on Siesta Key because the diminished ebb shoal would no longer serve as a natural buffer against wave energy from storms. They conducted no studies or calculations to support this assertion. Because the proposed dredging would remove a small percentage of the total ebb shoal volume, the ebb shoal would remain a protective barrier for Siesta Key. Wave energy reaching the shorelines along Big Sarasota Pass or within Sarasota Bay would continue to be substantially reduced by the ebb shoal. The predicted increase in wave energy that would occur as a result of the project could increase the choppiness of waters, but would not materially increase the potential for wave-related erosion. Petitioners conducted no studies and made no calculations of their own to support their allegation that the project would significantly increase the potential for damage to property or structures on Siesta Key due to increased wave energy. To the extent that Petitioners’ expert coastal engineer opined otherwise, it was an educated guess and insufficient to rebut the Applicants’ prima facie case on the subject of wave energy. Groins Petitioners contend that the two proposed groins would adversely impact the beaches of Siesta Key because the groins would capture sand that would otherwise drift south and benefit Siesta Key. However, the preponderance of the evidence shows the groins would not extend into or obstruct the sand “stream” waterward of the renourished beach. The historic use of groins to capture downdrift resulted in adverse impacts to adjacent beaches. However, the use of groins in conjunction with beach renourishment to stabilize a renourished beach and without obstructing downdrift is an accepted practice in coastal engineering. The proposed groins would not obstruct longshore sediment transport and, therefore, would not interfere with downdrift to Siesta Key. Public Interest - General Section 373.414(1) requires an applicant to provide reasonable assurance that state water quality standards will not be violated, and reasonable assurance that a proposed activity is not contrary to the public interest. However, if the proposed activity significantly degrades or is within an Outstanding Florida Water (“OFW”), the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest. Sarasota Bay, including Big Sarasota Pass and portions of Lido Key, have been designated as an OFW. Therefore, the Applicants must demonstrate that the proposed project is clearly in the public interest. In determining whether an activity is clearly in the public interest, section 373.414(1)(a) requires DEP to consider and balance seven factors: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of section 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. DEP determined that the project is clearly in the public interest because it would improve public safety by providing protection to Lido Key upland structures from storm damage and flooding, protect and enhance wildlife habitat, and provide beach-related recreational opportunities; and it would create these public benefits without causing adverse impacts. Public Interest - Safety Petitioners contend that the proposed project would adversely affect public health, safety, welfare, or the property of others because it would interrupt downdrift and substantially reduce the storm protection provided by the ebb shoal. As found above, the preponderance of the evidence does not support this contention. Public Interest - Conservation of Fish and Wildlife Petitioners contend that the proposed project would adversely affect the conservation of fish and wildlife, including endangered or threatened species. The Permit application materials provided evidence that the proposed project would have no effects, or only minimal temporary effects, on water quality, temperature, salinity, nutrients, turbidity, habitat, and other environmental factors. That was sufficient as a prima facie showing that the project would not adversely affect the conservation of fish and wildlife because, if environmental factors are not changed, it logically follows that there should be no adverse impacts to fish and wildlife. Therefore, as explained in the Conclusions of Law, the burden shifted to Petitioners to present evidence to show that adverse effects to fish and wildlife would occur. It was not enough for Petitioners to simply contend that certain fish species were not adequately addressed in the application materials. With the exception of Dr. Gilmore’s field investigation related to the spotted seatrout, Petitioners conducted no studies or field work of their own to support their allegations of adverse impacts to fish and wildlife. Dr. Gilmore discovered that spotted seatrout were spawning in Big Sarasota Pass. Such spawning sites are not common, are used repeatedly, and are important to the conservation of the species. Spotted seatrout spawn from April through September. The record does not show that the Florida Fish and Wildlife Conservation Commission, the U.S. Fish and Wildlife Service, or the National Marine Fisheries Service were aware that Big Sarasota Pass was a spawning area for spotted seatrout, or considered this fact when commenting on the project. The spotted seatrout is not a threatened or endangered species, but DEP is required to consider and prevent adverse impacts to non-listed fish species, as well as recreational fishing and marine productivity. If the proposed project would destroy a spotted seatrout spawning area, that is a strong negative in the balancing of public interest factors. The Applicants do not propose mitigation for adverse impacts to spotted seatrout spawning. Seagrass sites close to the spawning area are used by post-larval spotted seatrout for refuge. The likely seagrass nursery sites for seatrout spawning in Big Sarasota Pass are depicted in SOSS2 Exhibit 77. The proposed seagrass mitigation at the Perico Rookery Seagrass Mitigation Basin, over 16 miles away, would not offset a loss of this refuge function because it is not suitable as a refuge for post-larval spotted seatrout. The spawning season for spotted seatrout occurs during the same months as turtle nesting season, and DEP argued that the turtle protection conditions in the Permit to limit lighting and prohibit nighttime work, would also prevent adverse impacts to the spotted seatrout. However, spotted seatrout spawning is also threatened by turbidity and sedimentation in the spawning area and adjacent seagrasses. The spotted seatrout spawning area is in the area where dredge Cut B is located. If Cut B were dredged during the spawning season, it would likely disrupt or destroy the spawning site. Reasonable assurance that the proposed project would not disrupt or destroy the spawning site requires that Cut B not be dredged during the spawning season. Seagrasses that are likely to provide refuge to post- larval seatrout are near the most eastern 1,200 feet of Cut C. Reasonable assurance that the proposed project would not disrupt or destroy the refuge function requires that the most eastern 1,200 feet of cut C not be dredged during the spawning season. In summary, the proposed project would adversely affect the conservation of fish and wildlife unless dredging was restricted during the spotted seatrout spawning season, as described above. Public Interest – Navigation, Flow of Water, and Erosion Petitioners contend that the proposed project would adversely affect navigation, the flow of water, and would cause harmful erosion to Siesta Key, but Petitioners conducted no studies or calculations to support this assertion. The preponderance of the evidence shows that no such adverse impacts would occur. Public Interest – Recreational Values Petitioners contend that the proposed project would adversely affect fisheries and associated recreation because of harm to spotted seatrout and other fish species. As found above, the preponderance of the evidence shows the project would adversely affect the spotted seatrout, an important recreational fish species, unless dredging was restricted during the spawning season. Public Interest - Value of Functions Petitioners contend that the proposed project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed project because dynamic inlet system would be disrupted. As found above, the preponderance of the evidence shows the project would not adversely affect the coastal system. However, it would adversely affect the spotted seatrout spawning and refuge functions provided by Big Sarasota Pass unless dredging was restricted during the spawning season. Mitigation If a balancing of the public interest factors in section 373.414(1)(a) results in a determination that a proposed project is not in the public interest, section 373.414(1)(b) provides that DEP must consider mitigation offered to offset the adverse impacts. Although the Perico Rookery at Seagrass Mitigation Basin is within the OFW and the same drainage basin, it does not fully offset the adverse impacts likely to be caused by the proposed project. The mitigation would not offset the loss of spotted seatrout spawning and refuge functions. The mitigation for the loss of spotted seatrout spawning and refuge functions is unnecessary if the impacts are avoided by restricting dredging during the spawning season as described above. Design Modifications Petitioners contend that the Applicants did not evaluate the alternative of taking sand from offshore borrow areas for the renourishment. The record shows otherwise. Furthermore, as explained in the Conclusions of Law, the Applicants were not required to address design modifications other than alternative locations for taking sand from the ebb shoal and Big Sarasota Pass. Consistency with the Coastal Zone Management Program Petitioners contend that DEP failed to properly review the Permit for consistency with the Florida Coastal Zone Management Program (“FCZMP”), because DEP failed to obtain an affirmative statement from Sarasota County that the proposed project is consistent with the Sarasota County Comprehensive Plan. The State Clearinghouse is an office within DEP that coordinates the review of coastal permit applications by numerous agencies for consistency with the FCZMP. It is the practice of the State Clearinghouse to treat a lack of comment by an agency as a determination of consistency by the agency. With respect to this particular project, the State Clearinghouse provided a copy of the joint coastal permit application to the Southwest Florida Regional Planning Council (“SWFRPC”) for comments regarding consistency with local government comprehensive plans. SWFRPC submitted no comments. In a letter dated June 26, 2015, the State Clearinghouse reported to the Corps that “at this stage, the proposed federal action is consistent with the [FCZMP].” In a written “peer review” of the proposed project produced by the Sarasota Environmental Planning Department in October 2015, some concerns were expressed, but no mention was made of inconsistency with the Sarasota County Comprehensive Plan. Sarasota County sent a letter to DEP, dated August 24, 2016, in which it requested that the Corps prepare an Environmental Impact Statement (“EIS”) for the project. Sarasota County did not indicate in its letter to DEP that the proposed project is inconsistent with any policy of the Sarasota County Comprehensive Plan. Petitioners assert that the proposed project would be inconsistent with an environmental policy of the Sarasota County Comprehensive Plan that Petitioners interpret as prohibiting the proposed dredging. The record contains no evidence that Sarasota County believes the proposed project is inconsistent with this particular policy or any other policy of its comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP issue a final order approving the proposed agency actions, but only if the joint coastal permit is modified to prohibit dredging operations in Cut B and the most eastern 1,200 feet of Cut C during April through September. If this modification is not made, it is recommended that the proposed agency actions be DENIED; and The joint coastal permit be modified to clarify that it authorizes the removal of up to 1.3 million cy of sand. DONE AND ENTERED this 8th day of May, 2018, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2018. COPIES FURNISHED: Kirk Sanders White, Esquire Florida Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Alexandrea Davis Shaw, Esquire City of Sarasota Room 100A 1565 1st Street Sarasota, Florida 34236 John R. Herin, Jr., Esquire Gray Robinson, P.A. Suite 1000 401 East Las Olas Boulevard Fort Lauderdale, Florida 33301 (eServed) Eric P. Summa U.S. Army Corps of Engineers Post Office Box 4970 Jacksonville, Florida 32232 Martha Collins, Esquire Collins Law Group 1110 North Florida Avenue Tampa, Florida 33602 (eServed) Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 (eServed) Richard Green, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Christopher Lambert, Esquire United States Army Corps of Engineers 701 San Marco Boulevard Jacksonville, Florida 32207 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
Findings Of Fact In June, 1982, Florida East Coast Railway Company filed an Application for Development Approval for a Development of Regional Impact to be called "F.E.C. Park of Industry and Commerce" to be located in Dade County, Florida. On June 23, 1983, the Board of County Commissioners of Dade County adopted Resolution Z-114-83, a Development Order approving with conditions the development proposed by Florida East Coast Railway Company. A copy of the Development Order was transmitted to the Clerk of the Board of County Commissioners on July 7, 1983. By letter dated July 8, 1983, and received by the Department of Community Affairs on July 11, 1983, the Assistant Director of the Building and Zoning Department of Dade County advised that: In compliance with Section 380, Florida Statutes, we are enclosing , herewith, a copy of Resolution No. Z-114-83, adopted by the Board of County Commissioners on June 23, 1983, approving a development of regional impact applied for by Florida East Coast Railway Company to permit the development of the above-described property for an industrial park complex involving a district boundary change from GU (interim) to IU-C (Industry-Controlled) and an Unusual Use to permit two lake excavations. By letter dated July 19, 1983, the Department of Community Affairs responded to receipt of the copy of the Development Order as follows: We have received the copy of the Florida East Coast Railway Development Order you sent on July 8 in accordance with Chapter 380, Florida Statues[sic]. However, to fulfill the requirements of the law, the Development Order must he signed and include all exhibits. Therefore would you please he kind enough to provide the Department with a signed copy of Resolution #Z-114-83. . . . By letter dated July 27, 1983, and received by the Department of Community Affairs on August 1, 1983, Dade County advised that: In accordance with your letter of July 19, 1983, and our telephone conversation of this date, I am enclosing, herewith, a certified copy of Resolution Z-114-83; as I explained to you on the telephone, the Board of County Commissioners does not sign its resolutions. The only significant difference between the copy of the Development Order received by the Department of Community Affairs on July 11, 1983, and the one received on August 1, 1983, is a certificate signed by a Deputy Clerk in the office of the Clerk of the Circuit Court in Dade County certifying that the latter copy of Resolution No. Z-114-83 was a true and correct copy of the original of that document. Since at least 1946, Dade County has adopted and codified its zoning actions in the following manner. After the Board of County Commissioners acts on zoning applications at a regularly scheduled zoning meeting, zoning resolutions are prepared by Mr. Chester C. Czebrinski, who is in attendance at the meetings. Mr. Czebrinski is an attorney and is the Assistant Director of the Dade County Building and Zoning Department. He is also legal counsel to the Department and is a Deputy Clerk of the Board of County Commissioners. He has performed the functions described herein since 1946. While in attendance at the zoning meeting, Mr. Czebrinski records the action of the Board of County Commissioners on zoning applications noting any conditions adopted by the Board. In preparing the zoning resolution, he uses information obtained from the Clerk of the County Commission as to the resolution number, the names of the Commissioners who made and seconded the motion, and the vote on the resolution. When such resolutions are prepared, they are never re-submitted to the Board of County Commissioners for any further action or review. Copies of final zoning resolutions prepared by Mr. Czebrinski are sent to the Clerk of the County Commission (two original copies), other county departments, to the applicant, and to the attorneys of record. The purpose of transmitting the resolution to those departments and persons is to notify them of the official final action taken by the Board of County Commissioners. Additional copies of resolutions are also placed in the zoning hearing file. All such resolutions transmitted contain a transmittal date on the face of the resolution. The purpose of the transmittal date is to commence the appeal period within which an appeal may be taken to circuit court from the action of the Board of County Commissioners pursuant to the Code of Metropolitan Dade County. All such resolutions transmitted by Mr. Czebrinski are unstamped, uncertified copies of the final zoning resolution. Upon receipt of the transmittal of two copies of the resolution from Mr. Czebrinski, the office of the Clerk of the Board stamps both with the name of the deputy clerk, who for the past eleven years has been Raymond Reid. The letters on one stamp (the large stamp) are larger than the letters on the other, smaller stamp. The copies stamped with the large stamp are also stamped with the county seal. This copy is retained by the Clerk and is never certified. The other copy, stamped with a small stamp, is not stamped with the county seal. This copy is sent to Mr. Czebrinski with a separate certification by the Clerk on a separate page attached to the back of the resolution. Upon request, the Clerk's office will provide a copy of the zoning resolution retained by it. Such a copy is never certified, even for a state agency, unless a specific request for certification is made. An individual requesting certification is required to pay the Clerk a fee of one dollar. Section 2-1, Rule 1.05, Dade County Code, is interpreted and applied by Dade County not to require certification of the resolution physically retained by the Clerk and not to require certification of any copies of that resolution unless a specific request for certification is made. If Mr. Czebrinski receives a request for a copy of a zoning resolution, he provides one of the additional unstamped copies made prior to transmittal of the Clerk. If a certified copy of the resolution is requested, Mr. Czebrinski would make a copy of the resolution with the certification and then place a further certificate on it indicating that it was a copy on file with his office. The above procedures are for normal zoning actions of the Board of County Commissioners and differ from untypical procedures utilized for Zoning Appeals Board (ZAB) resolutions (which are certified by the Building and Zoning Director) and for resolutions pertaining to county airport matters, which are prepared by the County Attorney's office. Where a resolution encompasses an order of the Board of County Commissioners for a Development of Regional Impact, Mr. Czebrinski prepares a resolution in the manner described above and distributes it to all of the previously mentioned parties, and in addition to the Florida Department of Community Affairs and to the South Florida Regional Planning Council. Mr. Czebrinski has had responsibility for transmitting copies to the State Land Planning Agency pursuant to Chapter 380, Florida Statutes, since the adoption of the state law. The resolutions transmitted have been blank, uncertified copies. Each copy is accompanied by a transmittal letter which is signed by Mr. Czebrinski. Although in a few instances the files of the Department of Community Affairs contain items where the typical County Commission zoning procedure was not applicable, this was because either the special procedure of the ZAB or airport zoning applied, because the Department has specifically requested a certified copy in an isolated case, or because the Department had received a transmittal from a non-county source. On September 12, 1983, the Department of Community Affairs filed a Notice of Appeal with the Florida Land and Water Adjudicatory Commission objecting to various portions of the Development Order.
The Issue Whether a vessel is owned by Petitioner, Jonathan Selby, and is a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2020), and City of Riviera Beach Derelict Vessel Policy, No. 4.2., and therefore, subject to the provisions of section 705.103, Florida Statutes.
Findings Of Fact Petitioner is the owner of the 1987 Wellcraft marine vessel, Florida Boat Registration Number FL5632FV (HIN: WELC24661687)(the “vessel”), that sunk on the north side of the Riviera Beach Marina. Riviera Beach Marina is in the City of Riviera Beach. The vessel broke free from a mooring in a storm and is now in a wrecked, junked, or substantially dismantled condition. Therefore, the vessel is a “derelict vessel” as defined in section 823.11(1)(b)1., and the City of Riviera Beach Derelict Vessel Policy, No. 4.2. There was no evidence presented that the vessel became derelict because of the negligence of Petitioner.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction And Closing File in this proceeding.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110, TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DEO-11-0028 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Development, and that true and correct copies have been furnished to the persons listed below in the manner described, on this JS Thay of November, 2011. Y ‘ Miriam Snipes, Agenéy Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail and Electronic Mail: Mr. Benjamin Gross, Esq. City of Daytona Beach 301 S. Ridgewood Avenue Daytona Beach, FL 32114 grossb@codb.us By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable J. Lawrence Johnston Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550
The Issue The issues are whether the Department of Environmental Protection's (Department's) proposed agency action to issue a coastal construction control line (CCCL) permit to Respondents, Daniel G. and Doris L. Wentz (Wentzes or applicants), affects the substantial interests of Petitioner, James Hasselback, and if so, whether he timely filed his request for a hearing.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Background This case is the latest chapter in a long-running dispute between adjacent property owners in Gulf County. In 1984, the Cape Haven Townhomes (Cape Haven), consisting of five two-story units on pilings, were constructed at 263 Haven Road on Cape San Blas just west of County Road 30E. Petitioner purchased his unit in 1985 and has owned it continuously since that time. The remaining units were purchased by several other individuals, including Barnett, Hosford, Steve Brady (Brady), and Alison Dohrman, the daughter of Thomas Dohrman (Dohrman). Ownership in the Barnett unit is shared with two other persons, John Beranek (Beranek) and Stephen Hanlon (Hanlon). There are, then, seven individuals having an ownership interest in the five units. Although the complex faced the Gulf of Mexico to the west, another lot, which at one time was approximately 350 feet deep and 65 feet wide, lay between Cape Haven and the Gulf of Mexico. Between 1985 and 1999, the lot lying between the Gulf of Mexico and Cape Haven remained vacant. In December 1999, the Wentzes purchased the lot, which is located at 193 Haven Lane. The lot is divided into Parcels A and B, which appear to be of equal size with both facing the Gulf of Mexico. See Wentz Exhibit 1. It can be inferred that they purchased the lot with the intention of constructing a single-family dwelling on the property. In February 2000, the Wentzes filed an application with the Department for a CCCL permit authorizing the construction of a home on Parcel B. On July 9, 2002, the Department issued proposed agency action approving the application and issuing Permit No. GU-305. A petition was filed by Barnett and Hanlon challenging this action, the matter was referred to DOAH and assigned Case No. 02-3252, an evidentiary hearing was conducted, and a Final Order was entered denying the application. Barnett, et al. v. Wentz, et al., DOAH Case No. 02-3252, 2003 Fla. ENV LEXIS 232 (DOAH June 5, 2003), adopted, 2003 Fla. ENV LEXIS 231 (DEP Aug. 4, 2003). In that proceeding, Barnett and Hanlon were represented by the law firm then known as Oertel, Hoffman, Fernandez & Cole, P.A., now known as Oertel, Fernandez, Cole & Bryant, P.A. (the law firm). In September 2000, the Wentzes also filed an application for a field permit to enhance the dune system on their property. After the Department proposed to grant Field Permit 014292 authorizing the dune enhancement project, a petition challenging that action was filed by the law firm on behalf of Barnett, Dohrman, Hosford, Brady, Hanlon, Beranek, and Hasselback. The matter was referred to DOAH and was assigned Case No. 00-4460. Before a final hearing was conducted, however, Petitioners filed a notice of voluntary dismissal. In 2004, the Wentzes filed another application with the Department for a CCCL permit, this time on Parcel A. On September 8, 2004, the Department issued its notice of intent to issue Permit GU-409. Notice of this action was not published. Therefore, actual or constructive notice was required in order to afford third parties, including Mr. Hasselback, a point of entry. See Fla. Admin. Code R. 62-110.106(2)(receipt of notice means "either receipt of written notice or publication of the notice in a newspaper of general circulation in the county . . . in which the activity is to take place"). Besides the law firm, Barnett, Dohrman, and several others not relevant here received personal written notice of the Department's action. Thereafter, acting pro se Barnett timely requested at least six extensions of time to file a petition challenging the proposed agency action. The last extension lapsed on February 14, 2006, and neither Barnett nor any other Cape Haven owner requested a hearing by that date. In August 2005, the Wentzes filed an inverse condemnation suit against the Department. See Wentz v. State, Department of Environmental Protection, Case No. 05-270CA (14th Cir., Gulf Co. Fla.). On April 10, 2006, the Department issued a Final Order stating that it intended to revoke Permit GU-409 on the grounds the property was not platted prior to October 1, 1985, and shoreline changes had occurred after the proposed agency action had been issued. See DOAH Case No. 06-2381. Presumably, the latter reason was based on severe erosion of the shoreline due to several storms or hurricanes that struck the Florida Panhandle. According to testimony at hearing, due to erosion caused by storm events, the lot has receded from its original 350 feet in depth to around 175 feet at the present time. (In Case No. 02-2352, the administrative law judge noted that between 1993 and October 2002, around 47 percent of the property's total depth, or 170 feet, had eroded. Barnett at *11.) This in turn requires that any structure built on the Wentzes' lot be much closer to Petitioner's unit. One witness estimated that the Wentzes' septic tank, drain fields, and driveway would be no more than 30 feet from the front of the complex, while the pilings supporting the structure would be no more than 40 feet from the complex. The Wentzes challenged the proposed revocation of Permit GU-409 and simultaneously filed a rule challenge. See DOAH Case No. 06-2309RX. In August 2007, the Wentzes and Department reached a global settlement on all pending matters, and in return for the Wentzes' dismissing all pending court and administrative actions and executing a conservation easement in favor of the State as to one of the two parcels, the Department agreed to issue a Notice to Proceed (NTP) with the construction on Parcel A and to extend the expiration date on Permit GU-409 from September 8, 2007, to May 8, 2010. Except for the extension of the expiration date, no other changes to Permit GU- 409 were made. An extension was necessary because the permit would otherwise expire within a month, and no activity on the property had occurred due to Barnett's six requests for extension of time to file a petition and the passage of time required to resolve the revocation case and reach a global settlement. After the NTP was issued, concrete pilings were placed on the site and still remain as of this date. According to recent photographs, no other construction has occurred pending the outcome of this case. See Petitioner's Exhibit 4. In response to the Department's action, on October 10, 2007, the law firm filed a Petition on behalf of Barnett and Hosford in which they claimed that they first learned of the Department's latest action by reading a real estate listing in early October 2007, which advertised the Wentzes' property for sale, including a three-bedroom, three-bath home then under construction. On October 19, 2007, the Wentzes filed with the Department a Motion to Dismiss the request for a hearing as being untimely. Barnett and Hosford were later dismissed from the case on the grounds a new point of entry was not required by the latest Department action, and they had waived their right to contest the issuance of Permit GU-409 by (a) Hosford's failing to timely file a petition after notice of the agency action was issued on September 8, 2004, and (b) Barnett's failing to file a petition after the last extension of time to do so expired in February 2006. See Order Granting Motion to Dismiss, Jan. 25, 2008. On or about October 23, 2007, or just after the Motion to Dismiss had been filed by the Wentzes, Petitioner was contacted first by Hosford and then Barnett, who asked that he participate in the case to challenge Permit GU-409 since they believed that "apparently . . . [he was] not noticed by DEP on GU-409", and Petitioner was "the key for all of us maintaining our rights." See Wentz Exhibit 23. Petitioner agreed to file a petition since he thought it was in the best interests of all of the unit owners and did so within a matter of "two or three days." The Petition was prepared by the law firm and was filed with the Department on October 26, 2007. Substantial Interests At hearing, and in pre-hearing discovery, Petitioner testified that his substantial interests would be affected by the proposed agency action in three ways: (a) it would adversely affect his view of the Gulf of Mexico; (b) it would negatively impact the value of his townhome; and (c) he feared that wind or waterborne missiles from the structure during a storm event would cause damage to his townhome, which lies directly behind and to the east of the proposed construction site. See Fla. Admin. Code R. 62B-33.005(4)(f)(an applicant must show that "[t]he construction will minimize the potential for wind and waterborne missiles during a storm").1 The latter concern is the subject of the Wentzes' Motion in Limine briefly discussed in the Background portion of this Recommended Order. In addition to his testimony, on page 2 of the parties' Stipulation, Petitioner identifies the following concerns with the proposed agency action: The project does not satisfy the requirements or purpose of the statutes and rules limiting coastal construction; will diminish his observation and enjoyment of flora and fauna including sea turtles; will damage his property[;] and will have a significant adverse impact to marine turtles and the coastal system. Finally, in paragraph 21 of the Petition, the following allegation is made regarding the substantial interests of Petitioner: Should the permit be permitted, the Petitioner will no longer be able to enjoy the flora and fauna of Cape San Blas, the proposed project will jeopardize the Petitioner's continued enjoyment of his property at this location as described above, and the Petitioner's rights will be swept aside. The Wentzes argue that in demonstrating how his substantial interests are affected, Petitioner is limited to the reasons he gave during his testimony, both before and during the final hearing, irrespective of any other issues identified in his Petition or the parties' Stipulation. On the other hand, through counsel, Petitioner argues that he is a lay person, he cannot be expected to give opinion testimony in support of technical allegations in the pleadings and Stipulation, and that expert testimony may be used to establish how his substantial interests may be affected. A common thread in the testimony of Mr. Hasselback and the Stipulation is a concern that the proposed activity "will damage his property." See Stip., p. 2. Therefore, assuming arguendo that the Wentzes' argument regarding the standing issues that may be raised is correct, Petitioner is still entitled to offer proof that his property may be damaged by the proposed activity. As to the other two concerns stated in Petitioner's testimony, neither loss of view nor loss of economic value is a relevant consideration. See, e.g., Schoonover Children's Trust v. Village at Blue Mountain Beach, LLC, et al., Case No. 01- 0765, Recommended Order of Dismissal, April 20, 2001 (dismissing challenge to CCCL permit based upon allegations of loss of view and economic injury because "neither . . . is a protected interest in a proceeding under Section 161.053, Florida Statutes"). See also Young, et al. v. Department of Environmental Protection, et al., Case No. 04-3426, 2005 Fla. ENV LEXIS 155 at *30 (DOAH Aug. 15, 2005), adopted, 2005 Fla. ENV LEXIS 154 (DEP Sept. 26, 2005). Therefore, only the contention that the issuance of a permit may cause wind or waterborne missiles to strike or cause damage to his property need be decided to resolve the standing issue. Rule 62B-33.005(4)(f) requires that an applicant for a CCCL permit demonstrate that "[t]he construction will minimize the potential for wind and waterborne missiles during a storm." Mr. Hasselback is concerned that if a dwelling is constructed in front of his unit as proposed and no more than 40 feet away, during a severe storm event parts of that structure may be carried by wind or water into his unit. Although any dwelling constructed on the coastline must be designed to withstand the impact of a 100-year storm, a coastal engineer established that even if the home is built to those standards, "substantial structural elements" (such as sections of roofing material, siding, stairways, and the like) may still be carried by water, or blown by the wind, into Cape Haven, which lies directly behind, and less than 40 feet from, the proposed structure. The expert also pointed out that both the Department and Federal Emergency Management Agency require that all frangible structural components (those that tend to break up into fragments) below the first living floor remain unattached to the home. In this respect, the evidence supports a finding that Mr. Hasselback could reasonably expect to be adversely impacted in this manner should a permit be approved.2 Petitioner's expert also established that the existence of the pilings on the Wentz structure could accelerate beach erosion and cause damage to the beach dune system on Petitioner's property. Because of the extremely high rate of erosion on Cape San Blas, he opined that such impact could occur soon after the Wentz structure was completed. In this additional respect, Petitioner's substantial interests could reasonably be expected to be affected by the issuance of a permit. Was the Petition Timely Filed? Mr. Hasselback is the Mary Ball Washington Eminent Scholar in the College of Business, University of West Florida, in Pensacola, but maintains a residence in Tallahassee. As such, he must commute between the two cities each week during the academic year. He also travels much of the other time. Because of his schedule, he stated that he visits his unit only "an average of once a year." The record shows that he occasionally communicates by email or telephone with other unit owners, particularly Barnett, who is considered the "leader" of the unit owners in opposing any development on the Wentz property. It is fair to infer that since the property was purchased by the Wentzes in late 1999, most, if not all, of the information derived by Petitioner (and other unit owners) about the Wentz property, including any proposed activities they have undertaken, has come from Barnett, rather than other sources. Throughout this case, Mr. Hasselback has consistently maintained that he was unaware that the Department proposed to issue Permit GU-409 until he spoke by telephone with Barnett and Hosford in late October 2007 after the Wentzes had filed a Motion to Dismiss the Barnett/Hosford Petition. After the Department denied the application for Permit GU-305 in August 2003, he says he assumed that the issue was closed and that no further development would occur on the Wentzes' property. There is no direct evidence to dispute these assertions. Notwithstanding Mr. Hasselback's testimony, the Wentzes and Department contend that the law firm has represented the unit owners as a group since 2000, when the first two applications were filed, and that this relationship was still in effect in September 2004 when the law firm received notice of the Department's proposed agency action regarding Permit GU-409. They go on to contend that an agency relationship between the unit owners and the law firm existed, that it is presumed to continue in the absence of anything to show its revocation or termination, that the law firm's receipt of separate written notice concerning Permit GU-409 constituted constructive notice on Petitioner, and a petition should have been filed within 21 days after receipt of notice. Conversely, Petitioner contends that the attorney-client relationship between him and the law firm ended when the litigation in Case No. 02-2352 was concluded in August 2003, that the law firm did not represent him in September 2004, and that any notice to the law firm regarding the issuance of Permit GU-409 cannot be imputed to him. For the following reasons, on two different bases, including one not addressed by the parties, it is found that Petitioner received constructive notice of the proposed issuance of Permit GU-409 on or about September 15, 2004. To resolve the contentions of the parties, a factual review of the relationship between the law firm and Cape Haven owners is necessary. As discussed in greater detail below, this task is a difficult one because of the large number of unit owners (seven), some of whom participated as parties in one case, but not the others, and who are referred to by the law firm in correspondence or other papers generically as "a group of property owners, "adjacent property owners," or "other Cape Haven Townhome owners," and in other papers by their specific names. Although the law firm normally required that its clients execute a letter of engagement before agreeing to represent them, this policy was not strictly followed, and some unit owners who had not signed a letter of engagement were named as parties in a Wentz proceeding, while others who had signed a letter were not. Finally, the record supports a finding that throughout the nine-year controversy between the parties, Barnett has been the individual who acted as liason between the other unit owners and the law firm. After the Wentzes filed their application for a CCCL permit in February 2000, on August 4, 2000, Mr. Hasselback and three other unit owners, Dohrman, Barnett, and Hosford, each signed a letter of engagement with the law firm, also known as a New Matter Report (Report), authorizing the firm to represent them in the Wentz matter. See Wentz Exhibit 13. Petitioner says he "most likely" learned about the proposed issuance of Permit GU-305 through Barnett, who urged all of the unit owners "to come together" in opposing the permit. Petitioner agrees that all of the unit owners acted as a group "to fight the field permit and the GU-305." Even though Hasselback, Dohrman, and Hosford each signed a Report, the Reports identified only Barnett, Hanlon, and Beranek, who share ownership in unit 5, as the clients in the matter; Barnett was listed as the contact person. However, there is no evidence that Hanlon and Beranek ever signed a Report. Presumably, as co-owners with Barnett of unit 5, they had informally agreed with Barnett to be named as clients and to reimburse him for their pro rata share of the costs. The subject of the Reports was the "potential challenge of coastal control permit" and contained no information as to when the firm's services would cease. On September 25, 2000, the Department proposed to issue a field permit to the Wentzes for dune enhancement. See Case No. 00-4460. On October 11, 2000, the law firm filed a petition challenging the issuance of that permit. The petition was filed on behalf of all seven unit owners, even though three had never signed a Report. Although he probably discussed the substance of the petition before it was filed, Mr. Hasselback admits that he did not know the difference between a field permit and a CCCL permit and said he signed his Report so that the law firm could take "action against [the Wentzes] being able to build on [their] property." On October 20, 2000, the law firm also sent a letter to Department counsel requesting Department counsel to remind the Wentzes that a petition had been filed on behalf of its clients, that Permit 014292 was only proposed action, and that the Wentzes should not proceed with any work on the site. See Wentz Exhibit 3. The letter reflects that all of the Cape Haven owners, including Petitioner, were copied with that correspondence. The law firm's representation of the unit owners as a group at that time was confirmed by a letter sent to the Department on October 1, 2001, stating that the firm represented all of the Cape Haven owners, including Barnett, Dohrman, both Hosford and his wife, Brady, Hanlon, Beranek, and Petitioner, in their challenge to the Permit GU-305 application. It also requested notice of any decisions regarding the permit and a point of entry. See Wentz Exhibit 17. A copy of the letter was sent to all unit owners, including Petitioner. When the Department issued its formal proposed agency action regarding Permit GU-305 on July 9, 2002, it sent separate written notice to a member of the law firm on the same date. See Wentz Composite Exhibit 8. A petition was then timely filed by the law firm challenging that action. Notwithstanding the firm's letter of October 1, 2001, which indicated that all of the unit owners were opposing the issuance of a CCCL permit, only Barnett and Hanlon (who had not signed a Report) were identified as petitioners in the GU-305 case. Petitioner acknowledged, however, that he and the owners of three other units, but not Brady, agreed to share in the expenses of that case even though they were not named as parties. In all, he paid more than $35,000.00 in legal fees.3 (Brady, who owns unit 3, did not sign a Report, and according to Petitioner, he would not agree to share legal expenses in opposing the Wentzes' applications; even so, his name was on the petition filed in Case No. 00-4460.) Before Case No. 02-3252 was concluded, by letter dated January 15, 2003, the law firm, through a former member, Patricia A. Renovitch, Esquire, made the following request to Michael W. Sole, then Bureau Chief of the Department's Bureau of Beaches and Wetland Resources: Please consider this a request on behalf of adjacent property owners for notices about points of entry prior to the issuance of any permits to, and notices of any applications filed by, Doris and/or Daniel Wentz regarding the coastal lots they own on Cape San Blas that are described in File Numbers GU-375 and GU-305 (DOAH Case No. 02-3252 and OGC Case No. 02-1127). This would include notices of any applications for coastal construction control line permits or "dune enhancement" permits for these lots. (Emphasis added) In this instance, the law firm identified the unit owners as "adjacent property owners" without any further specificity. It can be inferred, however, that the law firm was still representing the entire group. At hearing, Petitioner acknowledged that because Case No. 02-3252 was not yet concluded, the law firm was still representing him when the letter was sent. He also agreed that the letter authorized the law firm to receive notices of "any applications" on behalf of him and the other unit owners the Wentzes might file in the future. Petitioner says his relationship with the law firm ended on August 4, 2003, when the Department issued a Final Order denying the application for Permit GU-305. He acknowledges that he never notified the Department or the law firm that the relationship ended on that day, and he did not instruct the law firm to revoke his prior authorization to receive notices of "any applications" that might be filed by the Wentzes in the future. Lacking any contrary information, the law firm did not advise the Department that it no longer was his agent for purposes of receiving notices. In response to Ms. Renovitch's letter sent to the Department in January 2003, on June 4, 2004, the Department sent a letter to the law firm (and Barnett individually) advising that the Wentzes had just filed another application for a CCCL permit, that it was being assigned File Number GU-409, and that any comments should be filed within ten days. See Department Exhibit 4o. In response to the Department's letter, on June 15, 2004, Ms. Renovitch filed a letter with the Department indicating in part as follows: Please consider the following comments made in behalf of our clients, Richard Barnett and other Cape Haven townhome owners of adjacent and/or upland property to the property described in the above styled application. (Emphasis added) The letter went on to state that "Mr. Barnett and other similarly-situated upland/adjacent property owners of Cape Haven townhomes submit their carefully considered objections to the issuance . . . of GU-409." See Department Exhibit 4o. Based on this correspondence, it can be inferred that in June 2004, at least for purposes of receiving "notices of any applications" filed by the Wentzes and submitting comments on behalf of the unit owners, an apparent principal-agent relationship still existed between the "other Cape Haven townhome owners" and the law firm, and that Petitioner was one of the unit owners being represented for those purposes. A copy of the letter was provided to Barnett, who presumably approved its content. On September 13, 2004, or five days after the Department issued its proposed agency action to issue Permit GU- 409, the Department sent separate written notice of this action to the law firm, Dohrman, Barnett, Erik J. Olsen (Olsen), a coastal engineer in Jacksonville, Florida, who testified as a consultant for Petitioner in this case, and several other individuals not relevant here. See Wentz Composite Exhibit 8. The notice was received by Barnett on September 15, 2004, and presumably by the law firm on or about the same date. See Department Exhibit 4n. (Besides the law firm, Barnett, Dohrman, and Olsen were also given separate written notice since they had each filed additional written objections in response to the Department's letter of June 4, 2004.) Although Barnett promptly contacted the law firm after receiving the notice to discuss the case, there is no evidence that the law firm contacted or spoke with any of the other unit owners regarding the proposed agency action. More likely than not, this was because it assumed that, based on the prior conduct of the parties, Barnett was the leader or "contact" person for the group and would convey any pertinent information to the other unit owners. While the law firm had not yet agreed to represent any of the unit owners on the merits of the GU-409 case since new Reports had not yet been sent out, see Finding 32, infra, the law firm was still Petitioner's agent for purposes of receiving notice of "any applications," and its receipt of the Department's notice on or about September 15, 2004, constituted constructive notice on Petitioner. On September 27, 2004, Ms. Renovitch emailed Kenneth Oertel, Esquire, the senior partner in the law firm, regarding the proposed agency action to issue Permit GU-409 and advised him as follows: Rick [Barnett] called a couple of times last week about the GU-409 case. He and John Beranek are in charge of overseeing the case (assuming we take it). They have approved the content of the Petition (per the memo I sent early last week.) I spoke to Rick Barnett several times about the balance (approx. $10K) on the bill in GU-305 (first Wentz CCCL permit). He said it's owed by Tom Dohrman and he will try to get a letter confirming when and how Tom will pay the balance. In the new case, the clients would be Rick, John Beranek, Jim Hasselback, Laurie Hosford, and Tom Dohrman. They will be paying equal shares. We have the NMRs [New Matter Reports] ready to send out, but have not sent them due to the unpaid balance in the first case. Rick wants to meet with DEP counsel Mark Miller and Tony McNeal about the GU-409 case this week . . . . Tony is very busy with hurricane impact emergencies . . . [and] Mark suggested Rick file a request for an extension to file the Petition. (Emphasis added) See Wentz Exhibit 9. Mr. Hasselback is not listed as a recipient of the email and he never spoke with Barnett or Ms. Renovitch about the case. He attributes the mentioning of his name in the email and being named as a party in the proposed petition to an assumption on the part of Barnett that "we may still have a group." However, given the prior conduct of the parties, it is reasonable to infer at a minimum that Barnett had Petitioner's implied authority to instruct the law firm to include his name on the proposed petition and to represent that Petitioner would share in the costs of the action. In response to that email, Mr. Oertel replied by email the same date that "we can't take a case where the client already owes us a substantial sum and has a hard time paying it. It will mean at best we will get paid only 80% of our bill." Id. At the suggestion of Mark Miller (Department counsel), Barnett requested that the Department grant him an extension of time to file a petition in order not to waive the 21-day filing requirement, which expired on October 6, 2004. The first request for an extension of time was filed on September 27, 2004, and stated in part that "I request a two week extension to October 20, 2004, for the homeowners of Cape Haven to consider all issues that could be raised in filing a potential challenge to this permit." (Emphasis added) See Department Exhibit 4n. The "homeowners" are not otherwise identified, although it is fair to infer that they were the five unit owners identified in the proposed petition whose content was approved by Barnett and Beranek. According to Ms. Renovitch's email of September 27, 2004, by requesting an extension of time, this would also "give [Barnett] more time to try to get Tom Dohrman to set up a payment plan." The last request for an extension of time was filed on November 14, 2005, and expired on February 14, 2006. Barnett says that he "lost track of the time and didn't submit [a seventh request] in time, but [he] clearly intended to submit [one]". The end result was that the law firm did not accept the case in September 2004, no petition was filed, and a new Report was not executed by any unit owner. After reading an advertisement regarding the potential sale of the Wentz property in October 2007, Barnett and Hosford engaged the services of the law firm to file a petition challenging the action taken by the Department in August 2007. There is no evidence that they signed a new Report authorizing the law firm to represent them. As noted above, their petition was later dismissed as being untimely. The law firm then filed a petition on behalf of Petitioner, who agrees that it was filed "to maintain the rights" of the group. However, he has not signed a new Report for this case, he has not been billed for any legal fees, he believes that Barnett is paying "some of the cost," but he expects he will probably end up paying a part of the legal fees incurred in this action. Based upon the facts of this case, and the conduct of the parties, the record also supports a finding that a principal-agent relationship existed between Petitioner and Barnett. As noted above, Barnett has always been the leader of the group of unit owners in opposing any development on the Wentz property. He communicated in writing and by telephone with Department personnel on numerous occasions over the years regarding the status of the activities on the property and periodically relayed this information to other unit owners by telephone or emails. Even though the law firm was given notice on behalf of the unit owners, Barnett also requested separate written notice from the Department for any applications filed after the GU-305 case, including the GU-409 permit. Barnett was initially identified by the law firm as the contact person for the group and has regularly met or communicated with the law firm regarding the various permits being challenged. It is fair to infer that the law firm assumed that Barnett had the authority to act on behalf of the other unit owners in coordinating their opposition to any permit challenges. This is evidenced by one of its emails indicating that Barnett was "in charge of overseeing the [GU-409] case" and that he approved the content of the proposed petition in which Mr. Hasselback was named as one of the parties. Although no longer a party in this case, he continues to discuss strategy of the case with counsel and other unit owners, including Petitioner. Finally, since the inception of these disputes, the record supports a finding that the law firm has invoiced Barnett for its legal fees, and Barnett then seeks reimbursement from the other owners, including Petitioner. Therefore, it is reasonable to infer from the evidence that because of his work schedule and travel, and infrequent visits to his townhome, since 2000 Petitioner has, at a minimum, impliedly authorized Barnett to serve as his agent to advise him about any activities by the Wentzes that might potentially impact the value of his townhome. The fact that Barnett did not always timely convey the information, as was the case here, does not negate this relationship. Because notice was received by Petitioner's agent on September 15, 2004, the time for filing a challenge to the issuance of Permit GU-409 expired 21 days after receipt of that written notice, or on October 6, 2004. Assuming that Mr. Hasselback was one of the "homeowners of Cape Haven" referred to in Barnett's first request for an extension of time to file a petition on September 27, 2004, and the subsequent five requests, the time for filing a petition expired no later than February 14, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing, with prejudice, the Petition of James Hasselback as being untimely. DONE AND ENTERED this 28th day of January, 2010, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2010.
Findings Of Fact Petitioners, Larry C. and Jan D. Giunipero, reside at 2345 Tour Eiffel Drive, Tallahassee, Florida. On February 29, 1984, they obtained a building permit from Franklin County to construct a single-family dwelling on their lot in Alligator Point, Franklin County, Florida. The Giuniperos engaged the services of a professional engineer to design their beach house. In so doing, the engineer designed the structure so as to comply with the Federal Emergency Management Association (FEMA) guidelines, which are minimum building requirements established by the Federal Insurance Administration to qualify for federal flood insurance. These guidelines have been adopted by the Franklin County Planning and Zoning Department, and insure that the structure can withstand winds of 110 miles per hour. Even before the Guiniperos obtained their permit, respondent, Department of Natural Resources (DNR), was in the process of adopting new Rule 16B-26.14, Florida Administrative Code, which would establish a coastal construction line for Franklin County. Under the proposed rule, a coastal construction control line on Alligator Point would be established, and any excavation or construction activities thereafter on property seaward of the control line would require a permit from DNR, and have to be in conformity with all structural requirements set forth in Rule 168-33.07, Florida Administrative Code. Because the Guiniperos' lot lies on the seaward side of the control line, they were obviously affected by the rule. The rule adoption process was quite lengthy and well publicized. It began in October, 1983 when a public workshop was held in Apalachicola and aerial displays of the control line were placed in the courthouse. Further public hearings were held in Tallahassee in February, March and April, 1984. These hearings were the subject of numerous notices and advertisements in the Florida Administrative Weekly, Tallahassee Democrat, Apalachicola Times, Panama City News Herald, and Franklin County News. Clearly, the agency met all legal requirements in advertising the rule. However, for some reason, neither the Giuniperos or their professional engineer were aware of the pending rule change. Similarly, the Franklin County planner failed to advise them of the imminent rule change even though aerial displays of the proposed line were in the courthouse when the permit was issued. Rule 168-26.14, Florida Administrative Code, was adopted by the Florida Cabinet on April 5, 1984, and eventually became effective on April 30, 1984. As of that date, any construction or excavation work seaward of the control line required DNR to issue a permit unless a dwelling was already "under construction" in which case the project was grandfathered in. The parties agree that petitioners do not fall in this category since the dwelling was not "under construction" within the meaning of DNR rules. A few days before the rule became effective, a DNR engineer met with the Franklin County planner to review all building permits issued since September, 1983 for construction on the seaward side of the control line. The engineer did this so that he could inspect all building sites after the line became effective and determine which, if any, were "under construction" and therefore exempt from DNR permitting requirements. Because of the volume of permits issued to persons seeking to beat the April 30 deadline, and his unfamiliarity with alligator Point, the planner was unable to give the DNR engineer the precise location of petitioners' lot. On or about May 1, 1984, the engineer visited the general locale of petitioners' lot. There was no activity on petitioners' lot, and no permit posted on the site. Accordingly, he assumed a recently completed beach house some 300 feet east of petitioners' lot was actually the Giuniperos' house. Since it was already completed, he merely filed a report the following day indicating that "if the location referenced above is accurate, the structure appeared to be completed at that time." On July 6, 1984, petitioners proceeded to install twenty-three 8" by 8" pilings on their lot at a cost of $1,760. DNR discovered this construction activity a few days later and notified petitioners by telephone that such activity was illegal without a permit. A formal cease and desist order was sent on July 11, 1984, and no activity has taken place since that time. An application for a permit remains in abeyance pending the outcome of this proceeding. The structural requirements of DNR are more stringent than those previously required by Franklin County and FEMA. Indeed, the FEMA guidelines are not a part of a coastal construction regulatory program but are merely minimum standards to meet federal flood insurance criteria. Therefore, while the Guiniperos' proposed dwelling is designed to withstand a windload of 110 miles per hour DNR requires a structure to meet a windload of 140 miles per hour. DNR also recommends that larger and more expensive pilings be used, and that the structure be designed to adequately resist a 100 year return interval storm event. Because the DNR requirements are more stringent, petitioners estimate they will incur total costs of $8,890 just to pull out the old pilings and install larger ones. 1/ Additional costs may be incurred to redesign and build the structure to withstand a wind velocity of 140 miles per hour. By rule, DNR does not grant a waiver of its permit requirements except where a building is already constructed and an applicant desires to make "minor additions" to existing nonconforming structures. The Giuniperos do not qualify for such a waiver.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioners' request for a waiver from the permitting requirements of Rule 16B-33.07 be DENIED. DONE and ORDERED this 11th day of March, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 11th day of March, 1985.
The Issue The issue in this case is whether the amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Lee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings entered an Order Closing File and Relinquishing Jurisdiction in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and ie copies have been furnished by U.S. Mail to each of the persons listed below on this day of April, 2011. By U.S. Mail The Honorable David M. Maloney Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Linda loomis Shelley, Esq. Fowler, White, Boggs, Banker, P.A. P.O. Box 11240 Tallahassee, FL 32302-3240 Paula Ford Agency Clerk
