The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
The Issue The ultimate issue is whether the Applicant, Florida-Georgia Venture Group, is entitled to development orders for its proposed development of regional impact, Hunter's Ridge, in Flagler County and the City of Ormond Beach, Florida.
Findings Of Fact The Petitioner is Florida-Georgia Venture Group, 402 Clifton Avenue, Holly Hill, Florida 32117, and its authorized agent is Thomas L. Durrance, Managing Partner. The Hunter's Ridge project lies within the jurisdiction of both the Northeast Florida Regional Planning Council (NEFRPC) and the East Central Florida Regional Planning Council (ECFRPC) and underwent concurrent review. The Hunter's Ridge project as proposed in this proceeding is a proposed planned unit development located in the unincorporated area of Flagler County and in the City of Ormond Beach on approximately 5,037 acres. The portion of the Hunter's Ridge project located in the unincorporated area of Flagler County consists of approximately 3,800 acres, of which 1,940 acres will be preserved as conservation area. The portion to be developed in the unincorporated area of Flagler County is approximately 1,860 acres, consisting of 1,702 residential units, plus commercial, recreational, and other uses. The portion of the Hunter's Ridge project located in the City of Ormond Beach consists of approximately 1,237 acres, of which 327 acres will be preserved as conservation area. The portion of the property in Ormond Beach to be developed is approximately 910 acres, consisting of 982 residential units, plus commercial, recreational, and other uses. Of the residential units to be developed in the City of Ormond Beach, 109 residential units were approved by the Department of Community Affairs (DCA) under a preliminary development agreement. The Board of County Commissioners of Flagler County held a public hearing on the DRI/ADA on July 13, 1989, which was continued to October 12, 1989, to November 2, 1989, to January 11, 1990, and to January 25, 1990. On January 25, 1990, the Board of County Commissioners of Flagler County passed and adopted a Development Order for the Hunter's Ridge DRI, which Development Order was recorded in Official Records Book 0423, Page 0669 through 0728, Public Records of Flagler County, Florida. The City Commission of the City of Ormond Beach held a public hearing on the DRI/ADA on August 15, 1989, which was continued to September 5, 1989, to September 19, 1989, to October 3, 1989, to October 17, 1989 and to January 30, 1990. At the public hearing on January 30, 1990, the City of Ormond Beach adopted Resolution 90-20 denying the DRI/ADA for the portion of the Hunter's Ridge DRI located in the City of Ormond Beach. The DCA, pursuant to Section 380.07, Florida Statutes, and Rules 42- 2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with the Florida Land and Water Adjudicatory Commission (FLWAC), whereby DCA appealed the Development Order adopted by the Board of County Commissioners of Flagler County. The Applicant, pursuant to Section 380.07, Florida Statutes, and Rules 42-2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with FLWAC, whereby the Applicant appealed the denial of approval by Ormond Beach. This cause came before FLWAC on May 22, 1990, for consideration of the Appeals and the Petitions for Administrative Hearing; FLWAC ordered that this matter be forwarded to Division of Administrative Hearings (DOAH) for assignment of a hearing officer and further proceedings. At the Administrative Hearing conducted by DOAH, on December 5-7, 1990, the Applicant amended its DRI/ADA to reduce the size of the project and to reallocate land uses, densities, and other components of the project. The current scope of the project is reflected in Florida-Georgia Exhibits 1-5, 9, and 14. As amended by the Applicant, the proposed project now consists of the following uses in Flagler County: 11.61 acres of Village Retail Office; 5.71 acres of Village Office; 16.68 acres of Light Industrial; 197.18 acres of Village Services/Recreational; 90.89 acres of Parks and Schools; 64.52 acres of Multi-Family Residential (with Upland Buffer); 259.34 acres of Wetlands; 146.93 acres of Roads, Drainage, and Retention; 52.90 acres of Lakes; 130.00 acres of Golf Course; 57.25 acres of Utility Easement; and 130.00 acres of Single Family Residential. The total number of dwelling units permitted in the County is 220 townhouses and villas and 145 apartments and condominiums. As amended by the Applicant, the proposed project now consists of the following uses in the City: 192.00 acres of Village Services/Recreational; 30.61 acres of Parks and Schools; 14.51 acres of Multi-Family Residential (with Upland Buffer); 174.54 acres of Wetlands; 110.95 acres of Roads, Drainage, and Retention; 28.65 acres of Lakes; 17.32 acres of Utility Easement; and 341.42 acres of Single Family Residential (with Upland Buffer). The total number of dwelling units permitted in the City are 932 single family units and 50 townhouses and villas. Generally speaking, the portions of the development within the County which are to be developed are in Township 41 South, Range 31 East, Section 22 and the east half of Section 21; Section 15 and the east half of Section 16, with the exception of a golf course in Section 15, constitute an area that, if it is to be developed in the future, will require a substantial deviation approval from all concerned agencies. Pursuant to stipulation of the Applicant and Flagler County, an area approximating Section 15 and the east half of Section 16 will be redesignated under the Flagler County Comprehensive Plan as Agricultural, with a permitted residential density of not more than one unit per five acres. Pursuant to stipulation, Sections 17 and 20 and the west halves of Sections 16 and 21, along with most of the portions of Sections 29 and 30 north of State Road 40, will be deeded to a public or public interest agency, with the Applicant retaining the right to conduct silviculture with best management practices except in those wetland areas of the property designated for conservation. The parties, with the exception of Citizens, have stipulated that Florida-Georgia Exhibit 5 constitutes the necessary affordable housing conditions for the project. The affordable housing provisions of the proposed project are consistent of the requirements of Chapter 380, Florida Statutes, Rule 9J-2, Florida Administrative Code, and the State Comprehensive Plan. The affordable housing conditions adequately address affordable housing needs of the project consistent with all local government, state, and regional requirements and regulations. The Applicant, the Florida Audubon Society, Flagler County and the City of Ormond Beach, have stipulated that the conditions contained in their Joint Stipulation, filed as Florida-Georgia Exhibit 9 satisfactorily resolve all issues concerning wetlands, wildlife habitat, and endangered species. The soils on the project will support the proposed development. During review of the DRI/ADA by the RPCs, Volusia County submitted comments and recommendations to ECFRPC. The comments and recommendations of Volusia County were considered by ECFRPC when it adopted its recommended conditions of approval. The conservation area proposed by the Applicant represents a significant contribution to conservation and wildlife. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on the environment and natural resources. The proposed Development Orders and Conditions of Approval include measures intended to address impacts upon, and to protect, the Little Tomoka River. The proposed Development Orders and Conditions of Approval provide for preservation and conservation of wetlands. The proposed Development Orders and Conditions of Approval provide flexibility for protection of environmentally sensitive areas. The proposed plan of development reflects a development that provides adequate environmental protection. The proposed project will have no adverse environmental impacts in the City of Ormond Beach. The proposed Development Orders and Conditions of Approval provide protection for the Little Tomoka River, preventive measures regarding stormwater discharge and stormwater treatment, and mitigative, water quality treatment methods in the surface drainage system, if any degradation is found at a later date. The proposed Conditions of Approval require that all construction within the project be protected against flooding. The project has sufficient safeguards to prevent construction within flood prone areas. Minimum floor elevations for flood plain purposes will be controlled by FEMA flood plain designations and by local rules and regulations, and will be established on a case by case basis for the Hunter's Ridge project. The proposed Conditions of Approval addressing transportation impacts and facilities are consistent with the provisions of Chapter 380, Florida Statutes, with the provisions of Rule 9J-2, Florida Administrative Code, and with the State Comprehensive Plan. The proposed Conditions of Approval ensure that the Hunter's Ridge project will not have an adverse impact on regionally significant roadways, including State Road 40. The proposed Conditions of Approval will ensure that the regional highway network will function at the desired level of service during the project buildout. The proposed Conditions of Approval are consistent with the provisions of Section 380.06(12), Florida Statutes, relating to transportation impacts. The proposed Conditions of Approval adequately address the transportation concerns of Flagler County. The proposed Conditions of Approval adequately address the transportation impacts on the City of Ormond Beach. The proposed Conditions of Approval dealing with public facilities are consistent with the provisions of Chapter 380, Florida Statutes, consistent with the provisions of Rule 9J-2, Florida Administrative Code, and consistent with the State Comprehensive Plan. If the conditions for providing public facilities are not met by the Applicant, development must cease. The proposed Conditions of Approval dealing with public facilities are consistent with the concurrency requirements of Chapter 380, Florida Statutes. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on public services and facilities. The proposed plan for development of the Flagler County portion of the project provides for all required public facilities and services. The Applicant will have to subsidize any deficits in providing public services. The Applicant has agreed to make contributions intended to assist Flagler County in providing public services to residents of areas outside of the Hunter's Ridge project. Solid waste is not an issue in Flagler County. The proposed Conditions of Approval for the Flagler County portion of the project provide three options for wastewater treatment. The proposed Conditions of Approval for the Flagler County portion of the project require that the project must stand on its own and must provide water supply and wastewater treatment without cost to the rest of the residents of Flagler County. The Flagler County portion of the project requires 1,200 to 1,500 dwelling units to provide a self-contained, self-supporting, self-sufficient development which will not require subsidy by other Flagler County taxpayers. The good mix of land uses contained in the proposed plan for development will help the tax base of Flagler County and avoid a deficit during the buildout of the project prior to construction of 1,200 to 1,500 dwelling units. The tax base, the values, and the assessments for the proposed project will provide sufficient funds to support the development. The proposed Conditions of Approval for the Flagler County portion of the project provide for voluntary contributions by the Applicant in excess of what is required by local ordinance. The dedication and donation of the golf course and conservation areas to Flagler County are voluntary contributions by the Applicant. The Ormond Beach portion of Hunter's Ridge project will not require a separate police patrol zone. The Ormond Beach Police Department can provide acceptable response times for the portions of the project within the City. The public safety site to be dedicated by the Applicant will benefit the City and the Police Department and will be helpful in rendering public safety services to the citizens of Ormond Beach. The Ormond Beach portion of Hunter's Ridge project will provide needed revenue to provide needed Police Department services. The Ormond Beach Police Department can adequately provide public safety services for the Hunter's Ridge area and respond to public safety needs within a reasonable amount of time. The City of Ormond Beach is capable of providing potable water service to the project. Impact fees generated by the project will be sufficient to fund water supply and wastewater capital facilities needed to serve the project. The City has adopted the West Ormond Plan to provide utilities to the Hunter's Ridge project. The Applicant has dedicated to the City a westerly wellfield site which will be needed for the entire city in the future, even if the Hunter's Ridge project is not developed. The City of Ormond Beach does not lose money on water and sewer fees. If the homes built in the Ormond Beach portion of the Hunter's Ridge project approximate the assessed values of existing homes within the city, there will be no revenue strain on the operating budget of the City of Ormond Beach. The average sale price for homes in the Hunter's Ridge project will be higher than the current average sale price within the City of Ormond Beach. The Hunter's Ridge project will not place an economic strain on the City of Ormond Beach. Future growth in the City of Ormond Beach will pay for itself in terms of capital needs. The fiscal problems of the City of Ormond Beach are not unique, but are similar to those occurring throughout the state. Increased property values from the Hunter's Ridge project will help the city's fiscal problems in the long run. The City of Ormond Beach has a great deal of ad valorem capacity to meet service needs and operating budgets. The Hunter's Ridge DRI will make significantly more contributions to public services and facilities than traditional subdivisions. The reduced project as proposed for approval in this proceeding contributes a greater amount of money toward public facilities. The public safety site to be dedicated in the Ormond Beach portion of the project is adequate to serve the fire fighting needs of the project and the surrounding areas. The public safety site to be dedicated in the Ormond Beach portion of the project gives the city flexibility in providing fire fighting services if the road network connecting the project with Shadow Crossings and Breakaway Trails is in place and will enable the city to better serve Shadow Crossings and Breakaway Trails. The roadway network for the Hunter's Ridge project will provide interconnections with Shadow Crossings and Breakaway Trails for the provision of police, fire, and emergency services. The Hunter's Ridge project will have no impact on solid waste in the City of Ormond Beach. The Hunter's Ridge project will have no impact on the vehicular needs of the City of Ormond Beach Department of Public Works. The Hunter's Ridge project will have no adverse impact on road maintenance in the City of Ormond Beach. The proposed Hunter's Ridge DRI is consistent with the requirements of Chapter 380, Florida Statutes, the requirements of Rule 9J-2, Florida Administrative Code, and the requirements of the State Comprehensive Plan. The Hunter's Ridge DRI meets all regional requirements. The Hunter's Ridge DRI does not represent "leap frog development," nor does it constitute "urban sprawl." The density of 982 dwelling units for the Ormond Beach portion of the Hunter's Ridge project is consistent with the State Comprehensive Plan and the requirements of Chapter 380, Florida Statutes. Reducing the density proposed for the Ormond Beach portion of the project from 982 residential units to 882 residential dwelling units would not necessarily be considered an improvement to furthering the plan concept. The Hunter's Ridge DRI is consistent with the plans and policies of the Regional Planning Councils. As to the portions within Flagler County, the Hunter's Ridge DRI: Is consistent with the provisions of Chapter 380, Florida Statutes; Is beneficial to Flagler County; Is consistent with the Flagler County Comprehensive Plan; Is consistent with the NEFRPC report and recommendations; Is superior to existing zoning; Provides better development and more planning opportunities than non- DRI approaches to development; and, Provides adequate controls for the development of Hunter's Ridge. The Ormond Beach portion of the project: Is consistent with the provisions of Chapter 380, Florida Statutes; Is consistent with the Ormond Beach Comprehensive Plan and all City ordinances and regulations; Adequately mitigates against adverse impacts through the Conditions of the proposed Development Order. To the extent that the opinions of some witnesses, primarily Mr. Grace and Mr. Shearer, have not been adopted in these Findings of Fact, they are deemed to be unreliable or lacking in substantial weight or persuasive value.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order and therein: Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and the City of Ormond Beach. Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and Flagler County. DONE and ENTERED this 21st day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Florida-Georgia Venture Group Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 12-14(6-8); 16- 19(9-12); 20(18); 22-25(19-22); 27-38(23-34); 40-89(35-83); 91(84); 92(85); 94(86); 97(87(; and 98(88). Proposed findings of fact 26, 39, 90, 93, 95, and 96 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 6-11 and 21 are unnecessary. Proposed finding of fact 15 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Department of Community Affairs Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 8-12(13-17). Proposed findings of fact 1, 2, and 13-17 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 3-7 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by the City of Ormond Beach 1. Proposed findings of fact 1, 8, 10-17, 21, 33-36, 38-40, 43, 46, and 49 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 2-7, 19, 20, 22, 23, 37, 47, 48, and 50 are irrelevant. Proposed findings of fact 9, 18, 24-32, 41, 42, 44, 45, 51, and 52 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by the Citizens for Ormond Beach 1. Proposed findings of fact 7, 9-11, 13-19, 21-25, 35, 47, and 49-52 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 8, 12, 20, 26-32, 34, 42, and 57 are irrelevant. Proposed findings of fact 33, 36-39, 43-46, 48, and 53-56 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 1-6, 40, and 41 are unnecessary. COPIES FURNISHED: J. Doyle Tumbleson, Attorney at Law Kinsey Vincent Pyle Professional Association 150 South Palmetto Avenue, Box A Daytona Beach, FL 32114 Fred S. Disselkoen, Jr. Attorney at Law City of Ormond Beach Post Office Box 277 Ormond Beach, FL 32175-0277 Gerald S. Livingston Attorney at Law Post Office Box 2151 Orlando, FL 32802 Timothy Keyser, Attorney at Law Post Office Box 92 Interlachen, FL 32148 Jonathan Hewett Attorney at Law Central Florida Legal Services, Inc. 216 South Sixth Street Palatka, FL 32177 David Russ, Senior Attorney Julia Johnson, Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, FL 32751 Linda Loomis Shelley Attorney at Law Dixon, Blanton & Shelley 902 North Gadsden Street Tallahassee, FL 32303 Noah McKinnon Attorney at Law 595 West Granada Avenue Ormond Beach, FL 32075 Douglas M. Cook, Director Planning and Budgeting Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001
The Issue The issue for determination is whether Petitioners are eligible for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida.
Findings Of Fact On November 30, 1993, Vander Ploeg and Associates, Inc., on behalf of Paul Leto, Richard Meyer, and Berta Anderes (Petitioners) submitted an application to the Florida Department of Environmental Protection (Respondent) for a permit to perform construction on their property seaward of the Broward County Coastal Construction Control Line. Respondent deemed their application complete on April 18, 1994. Petitioners proposed construction will be seaward of the Coastal Construction Control Line. The proposed construction will occur on two adjacent lots in Broward County. Petitioner Leto is the owner of one of the lots described as Lot 19, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioners Meyer and Anderes are the owners of the other lot described as Lot 20, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioner Leto purchased his lot in September 1992 and Petitioners Meyer and Anderes purchased their lot in March 1993. The lots were platted in or around the 1920's. Both lots are seaward of the seasonal high water line, on a sandy beach with no frontal dune structure. They are bordered by the Atlantic Ocean on the eastern most side and by a roadway (Surf Road) which is immediately adjacent to the lots on the western most side and landward of the lots. Approximately 200 feet north of the lots is an existing structure and approximately 800 feet south of this first existing structure is another existing structure. Petitioners topographical survey, which was submitted to Respondent in December 1993, showed that Lots 19 and 20, each measured 40 feet in a shore parallel direction and 80 feet in a shore normal direction, i.e., perpendicular to the shoreline. The proposed structure will be located directly on the sandy beach. The City of Hollywood, Florida has granted Petitioners a variance. Further, the proposed construction complies with the rules, zoning regulations, and ordinances of the City of Hollywood. Petitioners' application requests a permit for the construction of a single-family residence on the lots, which will house two families. However, the proposed construction is for a duplex, not a single-family residence. Petitioners are willing, and agreeable, to changing the design of the proposed structure to comply with Respondent's specifications for a single- family residence. Additionally, the proposed construction includes a riprap which will also be located on the sandy beach. A riprap is typically used for protective armoring. No structure presently exists for the riprap to protect. Furthermore, the riprap proposed by Petitioners is not adequately designed as a coastal protection structure, and if the proposed single-family residence is modified in accordance with Respondent's specifications, the proposed modified single-family residence would not be eligible for coastal armoring. The riprap structure is not an integral part of the structural design. Petitioners are willing, and agreeable, to eliminating the riprap structure. No other issues exist as to the structural integrity of the design of the proposed project. The lots on which the proposed structure will be located are a part of the beach-dune system. The natural function of the beach provides protection to upland property. The lots on which the proposed structure will be located are subject to normal storm-induced erosion. Tide and wave forces will impact the proposed structure during storms of minor intensity, including five-year storms. The proposed structure will induce greater erosion on the lots as a result of scour due to the interaction of the storm waves and currents with the proposed structure. During the storm, the normal storm-induced erosion combined with the scour erosion will form a breach or depression in the subject property. In turn, the upland property will be exposed to greater tide and wave forces, increasing the risk of erosion and damage to the upland property. The subject lots and surrounding properties have been subjected to unnatural forces which have added to the erosion. The Port Everglades inlet has inhibited the natural downdrift of sand. The City of Hollywood's beach maintenance division has been regularly pushing sand seaward and in the process, breaking down natural forming cliffs. Even though these unnatural forces are capable of being eliminated, the normal storm-induced erosion and the scour erosion would still exists. The existing developed structures to the north and south of the subject lots appear to create a reasonably uniform line of construction. However, the developed structures have been unduly affected by erosion. The proposed structure will be located within this line of construction. During a major storm along the shoreline, waves remove sand from the beach and dune area and deposit the sand in an offshore bar. After the major storm, a recovery of the beach and dunes takes place. Normal wave activity carries the sand from the offshore bar back to the beach, and the sand is then carried landward by winds and is caught and trapped by dune vegetation; thereby reforming a dune. Constructing the structure as proposed will not locate the structure a sufficient distance landward of the beach-dune system. As a result, the proposed structure will interrupt natural fluctuation in the shoreline and not preserve the natural recovery following the storm-induced erosion. The cumulative impact on the beach-dune system by the proposed structure would be severe, i.e., the effects on the beach-dune system by repeating this same proposed structure along the subject shoreline would be severe. There would be structure-induced scour and general degradation of the beach-dune system. Additionally, the recovery potential of the subject area following a major storm event would be threatened. Over the years, the beach of the subject property has been subjected to a re-nourishment project consisting of pumping sand from offshore. This method of re-nourishment may have negatively impacted the sand bar system immediately offshore affecting the hindrance of erosion. A sand bar system immediately offshore softens wave action on the shore and aids in inhibiting erosion. The proposed structure will hinder lateral public beach access. Currently, lateral beach access exists along the beach between the existing northern developed property and the existing southern developed property. The proposed structure will be located on the sandy beach, and the seaward face of the proposed structure will be within approximately one foot of the wet sand beach. At times, the proposed structure will be surrounded by water on at least three sides. No alternative beach access would be available. The proposed riprap will also be located on the sandy beach and will further hinder lateral public beach access. 2/ Loggerhead turtles, which are nesting marine turtles, engage in nesting activities along the stretch of beach where the subject property is located. They are a threatened species, i. e., close to extension. Although they do not nest every year, the turtles usually provide several nests in a single year. Typically, one hundred eggs comprise a turtle nest. In 1992, approximately 2,221 loggerhead turtle nests were in Broward County, with 22 of these nests located within 1,000 feet of the subject property. Turtle nesting efforts have been observed in the beach area of the subject property. One nest was found within the subject property. Structures located on the sandy beach interfere with marine turtle nesting habits. If female turtles make contact with the structures, they often abort nesting attempts, which results in false crawls. Repetitive false crawls harms successful nesting, which may cause malformed egg chambers, impacting the successful incubation of the nest. Also, interaction with a structure can cause injury or death to a female turtle attempting to nest. Additionally, urbanization activity and lighting on the beach deter nesting. A loss of marine turtle nesting habitat will result if the proposed structure is constructed. Also, armoring, such as the proposed riprap, can result in nests being placed more seaward. 3/ Consequently, the nests would be threatened with tidal inundation, which would affect the mortality of the nest itself. As one nest has been located within the subject property, at least one nest or crawl per year would be affected by the proposed structure. Within 30 years, the proposed structure will be seaward of the seasonal high water line. The location of the proposed structure is seaward of the 30-year erosion projection for the subject property. Beach Defense Fund, Inc. (Intervenor) presented no evidence to show that its interest is different than the public at large and that it has substantial interest separate and apart from the public.
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 denying the application of Paul Leto, Richard Meyer, and Berta Anderes for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida. DONE AND ENTERED this 31st day of May, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1996.
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.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On March 26, 1991 Venice applied to the Department for a CCCL permit to construct a 475 foot wooden retaining wall seaward of the coastal construction control line and to place a shell road immediately adjacent to, and landward of, the retaining wall from approximately 100 feet south of Granada Avenue to approximately 50 feet south of Ocala Street on Venice's right-of-way of The Esplanade in Venice, Florida. The Petitioners Roy B. and Patricia B. Olsen are residents of Venice, Florida and reside at 304 Ocala Street. They own Lot 1, The Esplanade, which is immediately east and south of the southern terminus of the proposed retaining wall. Petitioner, Nina Howard is a resident of Venice, Florida and resides at 721 Ocala Street. Ms. Howard's residence is located to the south and across Ocala Street from the site of the proposed retaining wall. Intervenors, Roger and Irene Fraley are residents of Venice, Florida and reside at 221 The Esplanade South, which is immediately landward (east) of the site of the proposed retaining wall. Intervenors, Howard and Evelyn Barbig are residents of Milton, Florida but are owners of lot 4, The Esplanade South, located north of the Fraleys' property and immediately landward (east) of the site of the proposed retaining wall. The Petitioners oppose the granting of the CCCL permit. The Petitioners have expressed their opposition to the granting of the CCCL permit based upon their belief that the construction of the proposed retaining wall will have adverse impacts to the beach dune areas and to the adjacent properties. Specifically, it is their belief that the construction of the proposed retaining wall will accelerate the erosion of the beach dune areas and the adjacent properties. The Petitioners disagree with the conclusion reached by the Department in the final order that, "the activities indicated in the project description are of such a nature that they will result in no significant adverse impacts to the beach dune areas or to the adjacent properties." Intervenors, Fraley and Barbig are in favor of the issuance of the CCCL permit because it will prevent seasonal erosion which results in exposure of, and damage to, the sewer line along The Esplanade, and will provide public access over the shell road within the right-of-way of The Esplanade for those properties between Granada Avenue and Ocala Street that do not have public access from time to time due to the seasonal erosion. On April 17, 1991 the Department advised Venice that the CCCL permit application was determined to be incomplete, and advised Venice of those things needed to make the application complete. Subsequent to this letter, the Department determined that, although the application was not an emergency, it did deserve "fast tracking", and assisted Venice in bringing the application to a "complete" status. On April 25, 1991 the Department issued a Final Order administratively approving CCCL permit number ST-820 for the construction of a wooden retaining wall and shell access road as described in Venice's application. On April 26, 1991 the Department issued a Notice to Proceed Withheld to Venice, which advised Venice not commence construction of the project authorized by the permit until certain permit conditions had been met. This notice also gave notice to those whose substantial interests would be affected by the proposed project of their right to a formal hearing. An engineering assessment was made for this project, and although not a formal written engineering assessment, the engineering assessment did consider all conditions of adverse impacts. In making this assessment, the Department considered and reviewed available aerial photographs, photographs taken of the area of the proposed project site and erosion tables concerning the area. A formal written engineering assessment is not required by statute, rule or Department policy. This assessment also indicated that there are severe impacts due to winter storm events which contribute to the seasonal profile changes. The seasonal beach profile is depicted by the build up of the beach (sand) during the summer months and the removal (erosion) of beach (sand) during the winter months. However, due to an inlet, a major rock-out cropping and the rock grain structures located in the vicinity of the proposed site, there is a limitation on the natural movement of sand along the coast which prevents natural renourishment and results in severe erosion in the area of the proposed site during the winter months. This erosion during the winter months causes the sewer pipes along The Esplanade to be exposed and sometimes broken, and prevents access over the right-of-way of The Esplanade to certain properties located along The Esplanade between Granada Avenue and Ocala Street. The wooden retaining wall is designed to retain sand just landward of the wall and allow a shell access road to be placed on the right-of-way of The Esplanade. The wooden retaining wall will be constructed as follows: (a) 8" x 20' wooden piling will be placed on 6' center and driven to an approximate depth of -14.00 (NGVD); (b) 2" x 8" planking will be attached to the landward side of the piling from the top of the piling (+7.0 NGVD) to a depth of appropriate 7 feet (0.00 NGVD); (c) with a filter "x" cloth covering the planking on the landward side. At the time of the application, the existing beach was +5.0 (NGVD) which would leave approximately 2 feet of the retaining wall exposed on the seaward side. The purpose of the retaining wall is to protect the shoreline in the immediate vicinity of The Esplanade and thereby protect the sewer line and access road which are landward of the seaward (west) right-of-way line of The Esplanade. The proposed wooden retaining wall is to be located as far landward as possible, and will be the minimum size and configuration to protect the sewer line and the shell access road along The Esplanade right-of-way. The retaining wall is designed to be temporary in nature in that its design will not allow it to survive under a major storm event. In that regard, the retaining wall comes within the definition of a minor structure as defined by rule and does not require a formal written review. The access road will enable Venice to establish a public road on public right-of-way for ordinary and emergency utilization by the residents and Venice. Previous attempts by Venice to protect the sewer line by "shoring up" the area with sand bags have proven unsuccessful. A wooden retaining such as the one proposed would be the next logical step to prevent the exposure and damage to the sewer line and still be consistent with the coastal armoring policy adopted by the Governor and Cabinet in December 1990. Dr. Al Deveraux, Bureau Chief, Control Engineering, personally viewed the site prior to approval of the project and waived compliances with certain provisions of the application. There is sufficient competent substantial evidence to establish that: erosion is occurring in the area of the proposed site without the presence of the proposed retaining wall; without the proposed retaining wall, Venice will be unable to prevent that erosion, particularly during the winter storm events, which will result in exposure and damage to the sewer line and lack of public access to certain properties located along The Esplanade between Granada Avenue and Ocala Street; and upon construction of the retaining wall, the beach dune area and the adjacent properties to the south of the proposed project will experience some increase in erosion above that presently occurring, but it will be minimal and will not have a significant impact on the area. The application submitted by Venice was processed and approved in accordance with statutes, rules and Department policy. There is sufficient competent substantial evidence to establish that granting CCCL permit number ST-820 and constructing the retaining wall and access road as set forth in Venice's application would be in the best public interest. The Petitioners' expert witness on coastal engineering concluded that there would be substantial erosion of the beach dune area and adjacent properties south of the proposed retaining wall as a result of constructing the retaining wall. However, this conclusion was not supported by competent substantial evidence. Special permit condition 1 requires Venice to provide the Department with a Sea Turtle Protection Plan approved by the Florida Marine Research Institute in St. Petersburg, Florida. This special condition takes into account the Department's policy for the protection of sea turtles as described in Rule 16B-33.005(9), Florida Administrative Code. The project is consistent with the thirty-year erosion projection and is not located seaward of that line.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is, accordingly recommended that the Department enter a Final Order issuing CCCL permit number ST-820 to the City of Venice, Florida subject to all the special conditions contained therein, and adding one other special condition requiring the City of Venice, Florida to monitor the beach dune system and adjacent properties south of the project site on a semi-annual basis for a period deemed necessary by the Department, and report any accelerated erosion that might occur in that area to the Department for review and action. RECOMMENDED this 27th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1991.
The Issue The issue is whether the Department of Environmental Protection should approve Petitioner’s application for a coastal construction control line permit.
Findings Of Fact Stipulated Facts2 Petitioner, Beach Group Investments, LLC (Beach Group), is a limited liability corporation under Florida law. Its address is 14001 63rd Way North, Clearwater, Florida 33760. On December 19, 2005, Coastal Technology Corporation (Coastal Tech) on behalf of Beach Group submitted to the Department an application for a CCCL permit pursuant to Chapter 161, Florida Statutes, to construct 17 luxury townhome units in two four-story buildings, a pool, a dune walk-over, and ancillary parking and driveway areas (hereafter “the Project”). The Department designated the application as File No. SL-224. The property on which the Project is proposed (hereafter “the Property”) is located between the Department's reference monuments R-34 and R-35, in St. Lucie County. The Property’s address is 222 South Ocean Drive, Fort Pierce, Florida. The Property is located seaward of the CCCL line established in accordance with Section 161.053, Florida Statutes, and Florida Administrative Code Rule Chapter 62B-33. On April 21, 2006, the application was determined to be complete. By letter dated June 5, 2006, the Department notified Beach Group that the Project appeared to be located seaward of the 30-year erosion projection of the seasonal high water line (SHWL), and that in accordance with Section 161.053(6), Florida Statutes, the staff could not recommend approval of the Project since major structures are seaward of the estimated erosion projection. By letter dated July 7, 2006, and subsequent submittals, Beach Group requested a waiver of the 90-day time period for processing completed applications pursuant to Chapter 120, Florida Statutes, until October 31, 2006. On August 30, 2006, Beach Group submitted a certified engineering analysis of the 30-year erosion projection of the SHWL for the Department's consideration pursuant to Florida Administrative Code Rule 62B-33.024(1). Beach Group's analysis determined that the proposed major structures associated with the Project were located landward, not seaward, of the 30-year erosion projection. The Department also performed its own 30-year erosion projection of the SHWL, and determined that the proposed major structures were located seaward, not landward, of the 30-year erosion projection. The Department asserts that the proposed structures are located between 87 feet and 68 feet seaward of the Department's determination of the 30-year erosion projection. The Department disagreed with Beach Group's analysis because the analysis appeared to be inconsistent with Section 161.053(6), Florida Statutes, Florida Administrative Code Rule 62B-33.024, and the Department's own analysis. The Property is located just south of the Fort Pierce Inlet, and landward of a federally maintained beach restoration project that had approximately 14 years of life remaining under the existing Congressional authorization when the permit was submitted to the Department. By proposed Final Order dated November 1, 2006, the Department provided to Beach Group notice of its intent to deny the permit application. The proposed Final Order was received by Beach Group on November 8, 2006. Beach Group's petition for hearing was timely filed with the Department. Since the Department proposes to deny Beach Group's CCCL permit application, its substantial interests are clearly at issue, and it has standing to maintain this proceeding. On December 11, 2006, the Department issued an environmental resource permit for the Project. The Department denied Beach Group’s permit application because the Project extends seaward of the 30-year erosion projection calculated by the Department and because the Project’s impacts to the beach-dune system had not been minimized. The permit was not denied on the basis of the existence, or absence, of a line of continuous construction in the vicinity of the Project. The 30-year Erosion Projection (1) Background Fort Pierce Inlet (hereafter “the inlet”) was constructed by the Army Corps of Engineers in the 1920’s. The channel of the inlet is protected by two jetties that extend several hundred feet into the Atlantic Ocean. The jetties act as a barrier to the littoral transfer of sand from the north to south that would otherwise occur along the beach in the vicinity of the Property. The jetties cause accretion on the beach to the north of the inlet and erosion of the beach to the south of the inlet. The inlet channel beyond the jetties also restricts the littoral transfer of sand in the area. The deepening and widening of the channel in 1995 likely contributed to the increased erosion observed south of the inlet in recent years. The beach to the south of the inlet, including that portion on the Property, is designated as a “critically eroded beach” by the Department. The inlet is the primary cause of the erosion. Congress first authorized beach nourishment south of the inlet in 1965. That authorization expired in 1986. Congress “reauthorized” beach nourishment south of the inlet in 1996. That authorization expires in 2021, but St. Lucie County has requested that the authorization be extended for “another 50 years.” The first “major” beach nourishment south of the inlet occurred in 1971. Subsequent “major” nourishments occurred in 1980, 1999, 2003, 2004, and 2005. Another “major” nourishment is planned for 2007. There was a “moderate” nourishment of the beach in 1995, which included the placement of geotextile groins on the beach just to the north of the Property. “Small” nourishments occurred in 1973, 1978, 1987, 1989, 1990, 1992, 1994, 1997, and 1998. Cumulatively, the nourishments that occurred between the “major” nourishments in 1980 and 1999 involved approximately 419,000 cubic yards of sand, which is more than the volume involved in several of the “major” nourishments. Beach nourishment south of the inlet has been an ongoing effort since it started in 1971. The more persuasive evidence establishes that the nourishment project that is authorized through 2021 is a continuation of the project started in 1971 rather than a separate and distinct project. Various erosion control efforts have been used south of the inlet in conjunction with the beach nourishment efforts. For example, geotextile groins (which are essentially massive sandbags) have been installed and removed on several occasions since the mid-1990’s in order to “temporarily stabilize the shoreline until such measures could be taken to design, permit and construct a long-term solution”; concrete rubble and other riprap has been placed on the beach over the years (without a permit from the Department) to protect upland structures from erosion; and a "spur jetty" was constructed on the south jetty in an effort to reduce erosion south of the inlet. These efforts have not slowed the pace of the erosion or minimized the need for beach nourishment south of the inlet. Indeed, the need for and frequency of “major” nourishments south of the inlet have increased in recent years. Beach erosion south of the inlet will continue to be a serious problem so long as the inlet exists and the jetties remain in place. There is no reason to expect that the inlet or the jetties will be removed in the foreseeable future and, as a result, beach nourishment south of the inlet will continue to be necessary. The Department has recognized the need for continuing nourishment of the beach south of the inlet, as reflected in both the Strategic Beach Management Plan for the St. Lucie Beaches and the Ft. Pierce Inlet Management Study Implementation Plan. Those plans acknowledge the long-term need for continued nourishment of the beach at a rate of at least “130,000 cubic yards on an average annual basis.” The plans do not, however, guarantee that future beach nourishment in the area will occur at that, or any, rate. (2) Rule Methodology Florida Administrative Code Rule 62B-33.024 contains the methodology for determining the 30-year erosion projection, which is the projected location of the SHWL 30 years after the date of the permit application under review. Where, as here, the beach at issue is subject to an ongoing beach nourishment project, the methodology requires consideration of “pre-project” conditions -- i.e., the conditions that existed before the beach nourishment efforts started -- because those conditions are used to project how the beach will migrate landward in the periods over the next 30 years when there may not be any beach nourishment activity. The coastal engineering experts presented by the parties -- Michael Walther for Beach Group and Emmett Foster for the Department -- used essentially the same methodology to determine the location of the 30-year erosion projection. However, the variables that they used in each step of the methodology differed. Step 1: Locate the Pre-Project MHWL The first step in determining the 30-year erosion projection is to locate the pre-project MHWL. If a pre-project erosion control line (ECL)3 has been established in the area, it is to be used as the starting-point for the determination of the 30-year erosion projection. Otherwise a pre-project survey of the MHWL is to be used as the starting-point. Mr. Walther used a 1997 ECL as the starting point for his analysis. Mr. Foster used a March 2002 survey of the MHWL as the starting point for his analysis because he did not consider the 1997 ECL to be an appropriate pre-project ECL. The March 2002 survey of the MHWL is not itself an appropriate starting point for the analysis. The survey is not a “pre-project” survey, no matter how the project is defined; the survey occurred more than 30 years after the nourishments started in 1971, and three years after the first “major” nourishment pursuant to the Congressional reauthorization of the project. Moreover, as discussed below, there is an appropriate pre-project ECL in the area. There are two lines that might be considered to be a pre-project ECL in this case -- (1) the ECL established in 1997, and (2) the South Beach High Tide Line (SBHTL) established in 1968. The 1997 ECL was established based upon a survey of the MHWL performed on May 5, 1997. The survey occurred two years after a “moderate” beach nourishment and the placement of the geotextile groins on the beach. There was also a “small” nourishment in 1997, but the record does not reflect whether that nourishment occurred before or after the survey. The SBHTL was established based upon a survey of the MHWL between 1966 and 1968, prior to the initial nourishment of the beach south of the inlet. It is approximately 65 feet landward of the 1997 ECL. The SBHTL is the functional equivalent of an ECL, and it roughly corresponds to the “best fit line” for the March 2002 survey used by Mr. Foster as the starting point for his determination of the 30-year erosion projection in this case. The Department contends that the 1997 ECL is not based upon a “pre-project” survey of the MHWL because the applicable beach restoration project south of the inlet began in the 1970’s and has been ongoing since that time. Beach Group contends that the applicable project is the current one that is authorized through 2021, and that the 1997 survey preceded the start of the nourishments authorized by that project. The Department has used the 1997 ECL as the starting- point for determining the 30-year erosion projection in several prior permits in the vicinity of the Project,4 and in an April 9, 1999, memorandum discussing the 30-year erosion projection in the vicinity of monuments R-35 and R-36, Mr. Foster stated that “the ECL represents the pre-project [MHWL].” Mr. Foster no longer considers the 1997 ECL to be the appropriate pre-project MHWL for purposes of determining the 30- year erosion projection south of the inlet. He testified that had he been aware of “the complete background” of the 1997 ECL and the extent of the nourishments in the 1980’s and 1990’s, he would have brought the issue to the Department’s attention so that the Department could consider whether the 1997 ECL or “an earlier prenourishment line” was the appropriate pre-project MHWL. Although it is a close question, the more persuasive evidence presented at the final hearing establishes that the 1997 ECL is not an appropriate pre-project MHWL because the applicable “project” includes the beach nourishment efforts started in 1971 that have continued through the present, even though those efforts were intermittent at times. Thus, the appropriate starting point for determining the location of the 30-year erosion projection is the SBHTL, not the 1997 ECL used by Mr. Walther or the March 2002 MHWL survey used by Mr. Foster. Step 2: Locate the Pre-Project SHWL The second step in determining the 30-year erosion projection is to determine the location of the pre-project SHWL. Mr. Walther located the pre-project SHWL 26.4 feet landward of the 1997 ECL. That is the surveyed distance between the MHWL and SHWL in June 2005. Mr. Foster located the pre-project SHWL at the most landward location that the SHWL was surveyed in March 2002. The line is between 50 and 75 feet5 landward of the “best fine” line used by Mr. Foster as the pre-project MHWL, and it is as much as 25 feet landward of the surveyed location of the SHWL in some areas. Mr. Foster used “an average [of] 50 feet” as the MHWL- to-SHWL distance in his analysis of several prior permits in the vicinity of the Project.6 Mr. Foster testified that the distance between the MHWL and SHWL in this area varies “from the 20s in the immediate post-nourishment situations . . . all the way up to 70-some feet” and that the “the averages gravitate towards 40 feet.” Consistent with that testimony, the distance between the surveyed locations of the MHWL and SHWL depicted on Department Exhibit 6 is approximately 40 feet, on average. The MHWL-to-SHWL distance calculated by Mr. Walther is not a reasonable projection of the pre-project distance because it was based upon survey data taken immediately after a “major” beach nourishment when the shoreline was unnaturally steep and, hence, not representative of “pre-project” conditions. The SHWL located by Mr. Foster is also not a reasonable projection of the pre-project SHWL because it was based upon a March 2002 survey (which is clearly not "pre- project"); because it used the most landward surveyed location of the SHWL rather than a “best fit” line or an average of the distances between the surveyed MHWL and SHWL; and because it runs across areas of well-established dune vegetation. In sum, the MHWL-to-SHWL distance calculated by Mr. Walther (26.4 feet) is too low, whereas the distance resulting from Mr. Foster's siting of the SHWL based on the March 2002 survey (50 to 75 feet) is too high. Those distances are essentially endpoints of the range observed in this area, as described by Mr. Foster. A more reasonable estimate of the pre-project MHWL-to- SHWL distance is approximately 40 feet. See Findings 51 and 52. Thus, the pre-project SHWL is located 40 feet landward of and parallel to the SBHTL. That line is not depicted on any of the exhibits, but on Petitioner’s Exhibit 37, it roughly corresponds to a straight line between the points where the red- dashed line intersects the Property’s north and south boundaries. Step 3: Calculate the Erosion Rate The third step in determining the 30-year erosion projection is to calculate an erosion rate. The erosion rate used by Mr. Foster was -7 feet per year (ft/yr). That rate was calculated based upon an average of the shoreline change data for monument R-35 for the period from 1949 to 1967. The rate would have been higher had Mr. Foster averaged the rates for the nearby monuments.7 The erosion rate used by Mr. Walther was -4.9 ft/yr. That rate was calculated based upon an average of the shoreline change data for monuments R-34 to R-39 over the period of 1930 to 1968. An erosion rate of -7 ft/yr south of the inlet was referenced in permit applications submitted by Mr. Walter’s firm, Coastal Tech, for several shore protection structures south of the inlet; was used by Mr. Foster in his review of several prior CCCL permit applications south of the inlet; and was included in reports on the inlet prepared by the Army Corps of Engineers over the years. An erosion rate of -3.3 ft/yr was used and accepted by the Department in its review of another permit application in the general vicinity of the project.8 That erosion rate was based upon data from the period of 1972 to 1994, which is after the beach nourishment started south of the inlet. It is not entirely clear why Mr. Foster chose to use a data set starting in 1949, particularly since his report stated that the “1928-30 survey already shows significant erosion occurring south of the inlet.” His testimony did not adequately explain the choice of that data set. The use of a longer data set is typically more appropriate when calculating a historical rate. In this case, however, the use of the shorter period of 1949-68 is reasonable because the 1930-49 erosion rate was considerably lower than the 1949-68 rate,9 which has the effect of skewing the erosion rate calculated for the longer period of 1930-68. The higher erosion rate calculated by Mr. Foster also better takes into account the increased frequency of the nourishments in recent years as well as the continued need for shore stabilization in the area. In sum, the higher erosion rate of -7 ft/yr calculated by Mr. Foster using the 1949-68 data set better reflects the historical post-inlet, pre-nourishment erosion rate than does the lower erosion rate calculated by Mr. Walther. Step 4: Determine the Remaining Project Life The fourth step in determining the 30-year erosion projection is to determine the “remaining project life” of the “existing” beach nourishment project. It was stipulated that there are 14 years remaining until the currently authorized federal beach restoration project expires. It is reasonable to expect that beach nourishment south of the inlet will continue well beyond the expiration of the current federal project, but there were no other funded and permitted projects in place at the time Beach Group’s permit application was filed. Potential future beach nourishment projects are not considered “existing” under the rule methodology in Florida Administrative Code Rule 62B-33.024 unless they are funded and permitted at the time the application at issue is filed. Mr. Walther used the 14-year remaining life of the existing federal project in his calculation of the 30-year erosion projection, as did Mr. Foster. The “remaining project life” applicable to this case is 14 years, notwithstanding the likelihood of continued beach nourishment in the area beyond the expiration of the existing project. Step 5: Calculate the 30-year Erosion Projection The final step in determining the location of the 30- year erosion projection is a calculation using the variables determined in the previous steps. The calculation is as follows: first, the remaining project life determined in step four is subtracted from 30; then, that result is multiplied by the erosion rate determined in step three to get a distance; and, finally, the SHWL is moved that distance landward of its pre-project location determined in step two. Subtracting the remaining project of 14 years from 30 equals 16 years. Multiplying 16 years by the erosion rate of -7 ft/yr equals 112 feet, which means that the 30-year erosion line is located 112 feet landward of the pre-project SHWL (or 152 feet landward of the SBHTL). That line is not depicted on any of the exhibits, but it roughly corresponds to a straight line than runs across the Property parallel to the SBHTL just landward of the “conc. pad” and “existing conc. Pile caps (typ)” shown on Petitioner’s Exhibit 37. The line is 25 to 30 feet seaward of Mr. Foster’s 30-year erosion projection depicted on that exhibit. (3) Ultimate Finding Regarding the Location of the Proposed Structures in Relation to the 30-year Erosion Projection The Project includes major structures seaward of the 30-year erosion projection, as determined above. Impacts of the Project on the Beach-Dune System The Project includes 17 luxury town home units in two four-story buildings, a pool and spa, landscaping, and an elevated dune walkover. The units will range from 2,700 to 4,400 square feet of living space and are projected to be offered for sale in the $1.5 to $2.5 million range. Beach Group’s principal, Harold Seltzer, testified that the Project is sited as far landward as possible to allow for the development of all 17 units while still complying with the local setback and height restrictions; that the Project’s financial viability depends upon it being developed as proposed; and that the Project cannot be redesigned and remain financially viable. The CCCL permit application included a letter from the City of Ft. Pierce confirming that the Project is consistent with the applicable local development codes. Mr. Seltzer testified that the Project’s local development approvals expired in September 2006 because the CCCL permit had not been issued, and that Beach Group is having to go back through the local permitting process. The seaward extent of the Project is the 1978 CCCL, which is approximately 250 feet seaward of the current CCCL. The buildings on the adjacent properties are also located on the 1978 CCCL. The Project does not extend further seaward than the nearby development, including the structures authorized by the Department in File Nos. SL-162 and SL-173.10 The seaward boundary of the Property is the SBHTL. That line is approximately 295 feet landward of the MHWL established in June 2005, and as noted above, it is approximately 65 feet landward of the ECL established in 1997. The adjacent properties are developed with multi-story residential buildings. There is a densely vegetated dune feature in front of the building to the south of the Property. There is some vegetation, but no discernable dune in front of the building to the north of the Property. The Property as a whole is sparsely vegetated, but there are areas of “prolific vegetation” on the Property. The seaward extent of the vegetation on the Property roughly corresponds to the location of the 1978 CCCL. There are several mature sea grape clusters in the vicinity of that line. The beach in front of the Property is devoid of vegetation. It has a steep slope immediately landward of the water line; a wide (approximately 270 feet) expanse of relatively flat beach; and a gently sloping dune feature that starts just landward of the Property’s seaward boundary, crests approximately 30 feet farther landward, and then gradually slopes downward across the Property all of the way to State Road A1A. The dune feature on the Property is the frontal dune. It is the first mound sand located landward of the beach that has sufficient vegetation, height, continuity, and configuration to offer protective value. The crest of the frontal dune is seaward of the vegetation line on the Property, and ranges in height from +9.7 to +12.2 feet NAVD.11 The seaward toe of the dune is shown on the topographic survey for the Property at elevations ranging from +7.27 to +7.85 feet NAVD. Similar elevations occur on the landward side of the dune crest, just landward of the 1978 CCCL. The vegetation on the Property extends landward of the 1978 CCCL and landward of the line shown on the topographic survey of the Property as the “approximate location of sparse grass and ground cover.” The landward extent of the vegetation does not in and of itself define the landward extent of the dune; changes in the slope of the ground must also be considered. The more persuasive evidence establishes that the landward toe of the frontal dune is landward of the 1978 CCCL, but not as far landward as suggested by Department witness Tony McNeal.12 The landward toe of the dune on the Property is best defined by the elevations landward of the dune crest similar to the elevations shown for the seaward toe of the dune. The Project extends into the frontal dune on the Property, and it will requires minor excavation of the frontal dune, primarily in the area of the proposed pool. All aspects of the project, except for the proposed dune walkover, will be landward of the crest of the frontal dune and the mature sea grape clusters located on the dune. There will be no net excavation on the Property as a result of the Project. The sand excavated for the pool will be placed on-site, and additional beach-compatible sand will be used as fill for the site. Overall, the Project will result in the net placement of approximately 66 cubic yards of sand on the Property. The proposed structures will be elevated on piles, which will allow the beach-dune system to fluctuate under the structures during storm events. The finished floor elevation of the proposed structures is approximately +8 feet NAVD, which is slightly higher than the elevations associated with the toes of the frontal dune. The Project will not destabilize the frontal dune, even though it will encroach into the dune. The impacts of the Project on the beach-dune system will be mitigated by the placement of additional sand into the beach-dune system, as described above. The Project’s impacts will be further mitigated by the enhancements to the frontal dune described in the permit application. Mr. Walther testified that the frontal dune on the Property could “very easily” be enhanced to be of comparable height and magnitude of the dunes on the adjacent properties. The permit application proposes enhancements to the frontal dune as part of the Site Landscaping Plan for the Project. The proposed enhancements include increasing the crest of the dune to a height of +15 feet NAVD, and extensive planting of the dune with sea grapes, beach morning glories, and sea oats. The plantings would extend from the 1978 CCCL to the seaward toe of the existing frontal dune. The dune enhancements proposed in the permit application should be included as a specific condition of the CCCL permit for the Project, if it is approved.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order denying Beach Group’s application for a CCCL permit. DONE AND ENTERED this 19th day of April, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of April, 2007.
The Issue Whether the Notice to Proceed with the work and activities authorized by Amended Permit IR-507 should be issued.
Findings Of Fact On July 24, 1996, Respondent, Town of Indian River Shores (Town), filed an application with Respondent, Department of Environmental Protection (Department), for a permit to construct a beach access ramp seaward of the coastal construction control line. By Final Order dated November 27, 1996, the Department granted Permit Number IR-507. Petitioners, Peter Broom and Jeremy R. Geffen, and Duane Jackson, who is not a party to this proceeding, protested the granting of the permit and requested a formal hearing. A formal administrative hearing was held on November 13- 14, 1997, before Administrative Law Judge Errol H. Powell, who issued a Recommended Order on December 8, 1997, recommending that the Department enter a final order granting Permit Number IR-507 with special conditions as may be required by the Department for the protection of marine turtles. Administrative Law Judge Powell concluded the following in Paragraph 49 of the Recommended Order: 49. The evidence demonstrates that the impact of the proposed beach access ramp is minimal; that the construction or use of the beach access ramp will have no adverse effect on the marine turtle or the turtle nesting; and the beach access ramp will not cause significant adverse impacts or cumulative impacts. On January 13, 1998, the Department entered a Final Order, adopting the Recommended Order of Administrative Law Judge Powell and granting Permit Number IR-507 subject to two additional special conditions recommended by the Department staff during the final hearing pertaining to a survey of turtle nesting areas and restrictions on the use of the Town's ATV vehicle as discussed in Findings of Fact 34 and Conclusion of Law 52 of the Recommended Order, which provided: 34. At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp. * * * 52. Additionally, the DEP having considered both emergency and routine patrol access, did not deny the CCCL permit. Only another recommendation to protect marine turtles was made by the DEP, regarding the routine patrol. On June 16, 1998, a Final Order was issued by the Department, issuing Amended Permit Number IR-507. Among the special conditions of the amended permit was that the Town would conduct a marine turtle nesting survey prior to the utilization of the access ramp. A notice to proceed with the activities authorized by Amended Permit Number IR-507 was issued on September 17, 1999. Petitioners requested an administrative hearing, challenging the notice to proceed. Petitioners allege that the notice to proceed had been issued without adequate demonstration of marine life/turtle nursery protection and that the proposed construction would adversely affect marine and turtle life on the beach. At the hearing on the motion to dismiss, Petitioners conceded that Town had fulfilled all special conditions prerequisite to the issuance of the notice to proceed and that the permit did not require that a survey of turtle nesting be done prior to the issuance of the notice to proceed or to the commencement of construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered dismissing the Request/Petition for Administrative Hearing. DONE AND ENTERED this 7th day of January, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 7th day of January, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Theodore W. Herzog, Esquire 1101 Simonton Street Key West, Florida 33040 Michael R. Dombroski Coastal Technology Corporation 3625 20th Street Vero Beach, Florida 32960 Chester Clem, Esquire Clem, Polackwich & Vocelle 3333 20th Street Vero Beach, Florida 32960-2469
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should grant the application of the City of Destin (City) and Walton County (County) for a Consolidated Joint Coastal Permit (JCP) and Sovereign Submerged Lands Authorization (Application) to restore a 6.9 stretch of beach in the City and County.
Findings Of Fact The Gulf of Mexico beaches of the County and City were critically eroded by Hurricane Opal in 1995. The erosion problem was identified by DEP, which placed the beaches on its list of critically-eroded beaches, and by the County and City, which initiated a lengthy process of beach restoration through renourishment (also called maintenance nourishment.)1 The process, which included an extensive studies2 and construction design, as well as pre-application conferences with DEP staff, culminated in the filing of the Application on July 30, 2003. The Application proposed to dredge sand from an ebb shoal (i.e., a near-shore) borrow area south of (i.e., offshore from) East Pass in eastern Okaloosa County, using either a cutter head dredge (which disturbs the sand on the bottom of the borrow area and vacuums it into a pipeline which delivers it to the project area) or a hopper dredge (which fills itself and is moved to the project site). On the project site, heavy equipment moves the dredged sand as specified in the design plans. The project is executed in this manner and progresses along the beach, usually at a pace of about 300-500 feet a day. Each day work is in progress, public access to the beach is restricted for a length of about 500-1000 feet in the immediate vicinity of the area of beach being worked. Water Quality Increased turbidity is the primary water quality concern in a project of this nature. Increased turbidity can adversely impact submerged seagrasses and hard-bottom habitat, along with the benthic communities depending on them. When sand in the borrow area is disturbed by dredging, sand and silt become suspended and increase turbidity to some extent and for some duration, depending primarily on the nature of the bottom material and the dredging method. (The cutter head dredge vacuums most if not all of the disturbed sand and silt into the pipeline while, by comparison, the hopper dredge would result in higher turbidity in the water in the borrow area.) Sand delivered to the project site via pipeline must remain suspended in water for transport. When the sand is deposited on the beach, the excess water, with suspended particulate matter, will drain off and return to the Gulf of Mexico. Even if hopper dredges are used, and if material is deposited on the project site other than via pipeline, some of the material will be deposited in the littoral zone, and some material deposited landward of the waterline will be inundated by the tides and wave action and potentially re-suspended in water in the littoral zone. If the water is turbid upon discharge in the littoral zone, the near-shore can become more turbid. Sand Quality The primary determinant of the amount and duration of turbidity generated in the borrow area and in the littoral zone of the project site is the quality of the bottom material in the chosen borrow area. The coarser the material, the less turbidity. The best quality bottom material usually is found in the kind of borrow area proposed for use in the Application. Sand in the borrow area came from some of Florida's finest beaches. It has been cleaned of fine material (silt) not only by wave action but also as the sand moved along shore in the littoral zone and by the currents in the East Pass inlet. Numerous tests of the bottom material in the proposed ebb shoal borrow for the project indicate that it generally has less than one percent silt. Expert witnesses for the City, County, and DEP testified that, with such low silt content, turbidity increases of no more than 5-10 Nephalometric Turbidity Units (NTUs) above background levels are expected at the edge of the mixing zone--150 meters down- current from the borrow area, and down-current and offshore from the discharge points on the beach. Moreover, they testified that turbidity levels are expected to return to background levels quickly (i.e., within an hour or so.) SOB and STBR questioned whether the experts could be certain of their testimony based on the test results. But SOB and STBR called no expert to contradict the testimony, and it is found that the expert testimony was persuasive. Standard Mixing Zone Initially, the City and County applied for a variance from the turbidity standards to allow them to exceed 29 NTUs more than 150 but less than 1660 meters down-current from the borrow area, and down-current and offshore from the discharge points, based on Attachment H, the Water Quality Impact analysis in the Application. The analysis was based on an assumption of five percent silt content in the bottom material in the borrow area. SOB and STBR attempted to use the five percent assumption to impeach the expert testimony on water quality. But when the quality of the bottom material was ascertained to be less than one percent, the variance request was withdrawn at DEP's request as being unnecessary and therefore inappropriate. SOB and STBR also argued in their PRO that, if a 1660-meter mixing zone was needed for five percent fines, then a 332-meter mixing zone would be needed for one percent fines. This argument was based entirely on counsel's arithmetic extrapolation. There was no evidence in the record from which to ascertain the validity of the extrapolation. In addition, the evidence was that the bottom material in the borrow area in this case will be less than one percent fines. Shore-Parallel Sand Dike Specific Condition 6 of the Draft Permit requires the permittee to "construct and maintain a shore-parallel sand dike at the beach placement area at all times during hydraulic discharge on the beach to meet turbidity standards prescribed by this permit." The shore-parallel sand dike is essentially a wall of sand built parallel to the shoreline to keep the sand slurry (the mixture of sand and water) being pumped onto the beach from washing back in the water, thereby giving the materials more time to settle out of the water before the water returns to the Gulf of Mexico. Even if this condition were not in the Draft Permit, the City and County would be required to build the dike since it is part of their design for construction of the Project. Turbidity Monitoring The Application included a proposal to monitor turbidity, and the Draft Permit includes the proposed monitoring as a Specific Condition 38. Every six hours during dredging and pumping operations, the City and County are required to sample 150 meters down-current of the borrow area, and down-current and offshore of the discharge point, and report the results to DEP within a week. In addition, Specific Condition 38 requires work to stop if turbidity standards are exceeded, which must be reported immediately. Work may not proceed "until corrective measures have been taken and turbidity has returned to acceptable levels." If more than one exceedence of the turbidity standard is reported, DEP will require the City and County to redesign the project to address and cure the problem. These conditions are part of the reasonable assurance that water quality standards will not be violated. Sediment Quality Control/Quality Assurance Plan Pursuant to Special Condition 4.b. of the Draft Permit, the City and County are required to do a Sediment Quality Control/Quality Assurance Plan, which requires them to measure the quality of the sand as it comes out of the pipeline before it can cause a turbidity problem. If the dredge hits pockets of bad material, which is not expected in this case, work could be stopped before it creates a turbidity problem. Absence of Natural Resources in Project Area DEP performed side-scan sonar tests in the vicinity of both the borrow site and near-shore in the Project area and determined that there were no hard bottoms or seagrasses in either area. Therefore, there are no natural resources within the project area that would be covered or placed in jeopardy by a turbidity plume. Reasonable Assurance Given For all of these reasons, the City and County have provided reasonable assurance that water quality standards will not be violated. Required Riparian Interest Generally, and in the beach nourishment project area, the BOT owns seaward of the mean high water line (MHWL). The City and County own some but not all of the beachfront landward of the MHWL.3 In anticipation of the beach nourishment project, the City and County had the MHWL surveyed as of September 7, 2003.4 The surveys state that the MHWL as of that date shall also be known as the ECL. The surveys also depict the landward and seaward limits of construction and the predicted post-construction MHWL. The surveys indicate that construction is planned to take place both landward and seaward of the ECL. The predicted post-construction MHWL is seaward of the ECL. By resolution, the BOT approved the surveys and established the ECLs for the Project. The City survey was approved, and ECL established, on December 30, 2004; the County survey was approved, and ECL established, on January 25, 2005. The BOT's decisions are being challenged in court. If the decisions are upheld, the BOT intends to file its resolutions and record the surveys. There was no evidence that the City and County have an easement or the consent of all of the other beachfront owners to undertake the proposed beach nourishment project. Some of the other beachfront owners do not consent, including members of SOB and STBR. Standing SOB was incorporated not-for-profit in Florida on January 28, 2004. STBR was incorporated not-for-profit in Florida on February 16, 2004. Both were incorporated to protect and defend the natural resources of the beaches, protect private property rights, and seek redress of past, present, and future unauthorized and/or inappropriate beach restoration activities. No evidence was presented by any party as to whether SOB and STBR have filed their annual reports with the Department of State, and no party filed a Department of State certificate of status as to either SOB or STBR. STBR has six members, all owners of beachfront property in the area of the proposed beach nourishment project.5 SOB has approximately 150 members. These members own approximately 112 properties in the City, approximately 62 of which are beachfront and the rest condominium units of beachfront condominium developments. However, it is not clear from the evidence how many of these beachfront properties are in the area of the proposed beach nourishment project (beyond the four owned by Linda Cherry, who testified). The testimony of Slade Lindsey was sufficient, together with member affidavits, to prove that all six members of STBR use the beaches and waters of the Gulf of Mexico adjacent to the Project area for swimming, fishing, boating, and/or enjoying beach and Gulf vistas. As a result, the construction of the Project will affect their interests at least during the time construction is taking place near their property. If the Project were to result in violations of water quality standards for turbidity, their interests would be affected as long as the violations lasted and perhaps longer if lasting damage to natural resources were to result. However, as found, there will not be any lasting damage to natural resources, and reasonable assurance was given that no water quality violations will occur and that exceedences of water quality standards in the mixing zone will be of short duration, lasting for no longer than an hour. These effects will not be substantial. The evidence was not sufficient to prove that construction of the Project will affect the interests of a substantial number of the members of SOB. First, it was not clear how many of them own beachfront property or even condominium units in developments adjacent to the Project area. Second, the only witness on the subject, Linda Cherry, does not know all of SOB's members and did not state how many of the 39 SOB members who signed affidavits as to their use of the beaches and waters of the Gulf of Mexico adjacent to the Project area are known to the witness. Even if a substantial number would be affected, their interests would be affected no more than the STBR members' interests.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Draft Permit DEP JCP File No. 0218419-001-JC. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 30th day of June, 2005.
