Findings Of Fact On December 12, 1988, Petitioners filed an application with Respondent for a permit to construct improvements to real property seaward of the coastal construction control line (CCCL). Petitioners' property is located at 2400 North Atlantic Boulevard, Fort Lauderdale, Florida. The parcel of land owned by Petitioners measures approximately 50' in width and 140' in depth and is located in a primarily residential area of beachfront property with high property values. On this parcel is a residence that is approximately 1600 square feet in size. The residence is constructed on reinforced concrete pilings. There are many other residential and commercial structures in this area which are also constructed on reinforced concrete pilings. The improvements to this property seaward of the CCCL that Petitioners desire to make and that Respondent finds objectionable is the construction of a poured monolithic reinforced concrete slab patio supported by twenty-one reinforced concrete pilings. The patio would be approximately 27' by 50' in size. On November 17, 1987, Respondent approved an application filed by a previous owner of this property for the construction of a patio to be constructed with concrete pavers. Petitioners arranged to have the previously approved permit transferred to their name. The project contemplated by the subject application employs a different method of construction than the one permitted in 1987 because Petitioners desire to have a patio that is more attractive and is easier to maintain. Petitioners are also concerned that concrete pavers will be hazardous during a storm since they may be subject to being swept along by high winds and water. Petitioners have valid reasons for preferring the method of construction reflected by the subject application based on aesthetic and maintenance considerations. However, Petitioners did not establish that the proposed method of construction was necessary as a safety measure. To the contrary, the greater weight of the evidence was that blocks the size of the pavers to be used for the construction that has been permitted would not be propelled by either hydrodynamic or aerodynamic forces during a major storm as Petitioners contend. Instead, these blocks would likely be undermined during a major storm and, because of their weight, fall as the beach is eroded. Respondent has regulatory authority over the property in question. Respondent's regulatory authority, which includes rule making authority, is conferred by statute. Respondent's responsibilities include the preservation of the beach-dune area within its jurisdiction. There is a relationship between the siting of a structure, in terms of its proximity to the shoreline, and the likelihood that the structure will have an impact on the beach and dune systems. The subject patio is to be located within the beach-dune system. The patio Petitioners propose to construct on concrete pilings would have more of an adverse impact on the beach-dune system than a patio constructed of concrete pavers. During a major storm, greater erosion on the site around the pilings will occur as a result of scour. Following a major storm, the ability of a dune to re-form will be more inhibited if the patio is supported by pilings. Considering the hundreds of thousands of pilings that are already in place along the beach, the effect of the twenty-one pilings proposed by Petitioners, whether considered individually or cumulatively, will be insignificant. A patio is usually considered by Respondent to be a "minor structure". "Minor structures" are non-habitable structures that are generally designed to be expendable during a major storm event. Dune walkovers, viewing platforms, and decks are examples of minor structures. A patio constructed of concrete pavers would be another example. The nature of their construction permits minor structures to be placed more closely to the shoreline than major structures. The patio as proposed Petitioners has been properly categorized by Respondent as being a "major structure" since it is designed to withstand a major storm event. Respondent has not to date permitted any major structure as far east of the CCCL in this area of Broward County as Petitioner's proposed project. All major structures constructed on pilings that are that far east of the CCCL were built before permits were required. Respondent is concerned that the granting of the subject permit will set a precedent that will require the issuance of permits for the construction of other major structures as far seaward of the CCCL as the Petitioners' proposed project, and that such construction would result in a cumulative adverse impact on the beach-dune system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a final order which denies the subject permit. DONE AND ENTERED this 20th day of September, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact in paragraphs 1-6 and 8-10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraph 8 are rejected as being argument. The proposed findings of fact in the first sentence of paragraph 11 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 11 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in the third sentence of paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 13 are rejected as being conclusions of law that are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are rejected as being unsubstantiated by the evidence. While Petitioners' application included as a proposed condition to the issuance of the permit, a covenant running with the land that would require the property owner to reconstruct the beach-dune system in the event of destruction by a major storm, the evidence did not establish, as Petitioners proposed, that the covenant would "... protect the interests of DNR and its long term end of protecting the dunes and beaches". The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-2, 5-6, 10-16, 24-27, 30-31, and 33 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraphs 3 and 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 21 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 7-9 and 28-29 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraphs 17-20, 23, and 32 are rejected as being unnecessary to the conclusions reached. These proposed findings are incorporated in part as conclusions of law. The proposed findings of fact in paragraph 22 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made. COPIES FURNISHED: Kenneth G. Stevens 412 Northeast Fourth Street Fort Lauderdale, Florida 33301 Dana M. Wiehle, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Room 1003 Tallahassee, Florida 32399-3000 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ken Plante General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether North Armenia Consolidated Corporation is entitled to a coastal construction control line permit to build a single-family home seaward of the coastal construction control line on Little Gasparilla Island.
Findings Of Fact Respondent North Armenia Consolidated Corporation (Applicant) is a corporation owned by Dr. Leonard Kronen and Karen Kronen, his wife. On August 31, 1993, Applicant purchased lot 10, block A, Town of Seaboard, Little Gasparilla Island. Lot 10 is 7500 square feet, consisting of 100 feet running parallel to the beach and 75 feet running perpendicular to the beach. Lot 10 is located on Little Gasparilla Island in Charlotte County. Little Gasparilla Island is a bridgeless barrier island fronting the Gulf of Mexico on the west. Neither Applicant nor the Kronens own any other land on Little Gasparilla Island. Lot 10 originally was part of a larger lot that ran from the gulf to the bay. The larger lot was part of a plat that was recorded in 1895. The area was subdivided into smaller lots in the 1950s, at which time lot 10 assumed its present dimensions, but the new subdivision was never recorded. Lot 10 is not a beachfront lot, according to the subdivision map. However, the only adjoining lots seaward of lot 10 consist almost entirely of sandy beach, and almost half of these lots are seaward of the seasonal high water line. Lot 10 is entirely seaward of the coastal construction control line (CCCL). The structure that Applicant proposes to build on lot 10 is partly seaward of the 30-year erosion control line (ECL). The ECL marks where the projected seasonal high water line is projected to be in 30 years. Using an annual erosion rate of three feet, DEP determined that the ECL is 90 feet landward of the seasonal high water line. Little Gasparilla Island is low and flat. Its beach- dune system is dynamic. Barrier island dunes are relatively scarce and, in many cases, not exceptionally hardy. On the west coast, barrier island dunes ordinarily do not exceed eight feet in height. Unlike dunes elsewhere, such as on the east coast mainland, barrier island dunes are not the seaward extent of a large mass of sand extending landward, but are thinner and more likely to be overtopped during storm events. Two days after purchasing lot 10, Applicant submitted to Respondent Department of Environmental Protection (DEP) an application to build a single- family home seaward of the CCCL. The August 31 application did not propose any dune enhancement, restoration, or construction. Applicant submitted with the August 31 application a sealed survey depicting information that was compiled on July 8, 1993. At DEP's request, Applicant's surveyor revised the survey to reflect additional field work compiled on November 19, 1993. On April 1, 1994, a DEP engineer prepared a memorandum recommending denial of the August 31 application because the proposed structure would be sited on the frontal dune in violation of Section 161.053(6)(c)3 and 4, Florida Statutes. The April 1 memorandum describes the island as about 925 feet wide at the location of the proposed structure and the shoreline as "unarmored and experiencing significant erosion and dune line recession. Thus, the shoreline is generally considered fragile." However, the shoreline has a moderately sized sandy beach and a "low profile, vegetated, and discernable frontal dune." The April 1 memorandum states that the shoreline serves "predominantly as a storm buffer, a source of sand material for downdrift beach areas and a recreational area." There is "moderate" development along the shoreline, including several dwellings authorized by DEP. The April 1 memorandum describes the average dune crest elevation as 6.7 feet NGVD. The average dune width is 95 feet. According to the memorandum, the shoreline is eroding at a rate of a minimum of three feet annually; "Post- storm data since March 1993 suggests an even higher erosion rate." At the time of the memorandum, the seasonal high water line was 74 feet seaward of the proposed structure. Over 30 years, using the minimum erosion rate, the seasonal high water line would extend to a maximum of 16 feet past the seaward extent of the structure. The April 1 memorandum reports projected storm surge elevations. The elevations are 12.8 feet NGVD for the 100-year storm, 11.5 feet NGVD for the 50- year storm, and 6.8 feet NGVD for the 20-year storm. According to the memorandum, the storm surge of the 100-year storm would engulf all of lot 10. The storm surge accompanying the 20-year storm would immerse part of lot 10. The survey, which contains a single vertical cross-section, reveals that the highest elevation on lot 10 is at the seaward property line, where the elevation is 6.8 feet NGVD. Running in a landward direction along the cross- section, the elevation of the property decreases until it reaches about 2.5 feet NGVD at the landward property line. The most crucial finding of the April 1 memorandum is that the proposed structure would be on the landward slope of the frontal dune, 37 feet landward of the primary dune crest/bluff. The memorandum states: The dune system in this area, including the subject property, is considered fragile because of the relatively high erosional stresses it is experiencing. These erosional stresses have been manifested in noticeable signs of both dune line and vegetation retreat along the shoreline. The rate of retreat has appeared to increase in the last two years. Consequently, a number of existing dwellings, including the one recently authorized by [DEP] under permit number CH-278, are now sited either on or just landward of the sandy beach along the shoreline. The proposed dwelling's foundation will penetrate the dune approximately 37 feet upland of the crest. Because of the dune's relatively low elevation and mild slope, and the setback of the foundation piles from the dune crest, the construction of the project is not expected to destabilize the dune feature, provided adequate construction methods are employed for protecting the site and the removal of the existing scrub vegetation is mitigated. However, the proposed dwelling is also expected to be sited on the beach within a relatively short time if the current erosion trends continue. At that time, the structure is expected to interact with wave uprush and sand movement across the sandy beach on a more frequent basis. This interaction has the potential for causing a direct adverse impact to the beach-dune system by resulting in the additional loss of sand material from the site above that without the structure. The April 1 memorandum notes that the proposed structure would be landward of the existing line of construction; thus, the siting of the structure would not be expected to impact existing structures. However, the memorandum concludes that, even though the proposed design has minimized expected impacts to the greatest extent possible, the structure is expected to cause an adverse impact to the beach/dune system because of the "extremely dynamic nature of the shoreline and the fragileness of the dune system." Because the proposed structure would be seaward of the ECL and sited on the frontal dune, it would violate Section 161.053(6)(c)3 and 4, according to the memorandum, and is therefore ineligible for a CCCL permit. On April 8, 1994, DEP sent a letter to Applicant's engineer stating that the application for a CCCL was denied. The letter recites many of the findings of the April 1 memorandum. Applicant submitted two more revisions to the survey accompanying the application. The revisions, which are dated April 14 and May 13, 1994, added and then revised the seasonal high water line seaward of lot 10. The latter of these revisions located the seasonal high water line at 3.5 feet NGVD and about 27 feet landward of the mean high water line, which is at 1 foot NGVD. On May 20, 1994, Applicant's engineer wrote DEP's engineer and proposed revisions in the project. On June 24, 1994, Applicant's attorney wrote DEP's Chief of the Bureau of Beaches and Coastal Systems and asked that DEP reconsider its determination that the proposed structure would be on the frontal dune and consider the possibility of a cantilevered structure whose pilings would be landward of the ECL. By letter dated August 1, 1994, DEP's Bureau Chief confirmed to Applicant's attorney that the proposed structure would be on the frontal dune and the portion of the structure waterward of the ECL would be subject to Section 161.053(6)(c). The letter invites updated survey data to show possible accretion along the shoreline, which would change the location of the ECL. The letter suggests helpfully that such a trend normally occurs during the summer. Rather than supply updated survey information, Applicant commenced a legal action in Charlotte County Circuit Court against DEP for the denial of the CCCL permit. Sometime over the ensuing months, Applicant reduced the footprint of the structure slightly, relocated the structure slightly landward, and proposed the construction of an artificial dune seaward of the proposed structure. However, the relocation and downsizing of the structure did not take it landward of the ECL. Responding to the specifications of the dune project proposed by Applicant, DEP's engineer, by letter dated December 19, 1994, told Applicant's engineer that the location, crest elevation, slopes, and revegetation of the proposed "reconstructed" dune appeared acceptable. DEP's engineer stated that the dune would have to extend across the front of the entire parcel, although the dune could be sloped "so as not to encroach onto the adjacent parcels." On March 21, 1995, attorneys for both parties executed a settlement agreement under which Applicant would dismiss its legal action once DEP issued the CCCL permit or, if an affected person demanded a hearing, once the (presumably favorable) DEP order became final. The parties agreed that the permit was to require Applicant to construct an "artificial sand dune," in accordance with attached drawings. On May 31, 1995, DEP issued the CCCL permit, based in part upon the survey that was almost two years old and had not been updated as to elevations on lot 10. The modified final order recites the history of the application and incorporates the settlement agreement under which the parties abated the circuit court action. The modified final order calls for "[d]une enhancement consisting of the reconstruction of the frontal dune and the planting of indigenous vegetation over the reconstructed final dune," as specified in a special permit condition. Petitioners then filed their petitions challenging the permit. The approved plans for the dune construction provide that the new dune would extend from the seaward property line landward a distance of 22 feet. The base of the proposed dune would run the entire length of the lot, but the dune crest would be sloped at either end of the property to avoid encroaching upon other properties. The slopes would begin about six feet from either end of the property. Although not disclosed by the drawings, the slopes would taper the crest down to the existing grade at both property lines. The present dunes to the north and south are no more prominent than the natural dune on lot 10. The risk of encroaching sand from the proposed manmade dune, if it were not sloped at the north and south ends, acknowledges the absence of dune systems of the height or configuration of the proposed dune. Thus, the slopes are required to reduce the elevation of the crest to the existing grade. The cross-section depicts an area in the south half of lot 10 and includes the proposed elevated septic tank drainfield. Except for the sloped areas at either end of the proposed dune, the elevations in the cross-section are typical of the elevations of the rest of lot 10. The cross-section runs between the mean high water line and a point just landward of the landward property line of lot 10. In its unaltered state, the elevations along this cross-section reflect two gentle slopes: one running up from mean high water to the seaward property line and one running down from the seaward property line to beyond the landward property line. (The drawing exaggerates the slope because the horizontal scale is 1"=20' while the vertical scale is 1"=10'.) At the north- south midpoint of lot 10, the mean high water line is about 32 feet from the seaward property line and 25 feet from the vegetation line and the seasonal high water line is about 18 feet from the seaward property line. These distances at the cross- section are slightly less. The elevations of the existing grade climb from about 1 foot NGVD at mean high water to 6 feet NGVD at a point about eight feet seaward of the property line of lot 10. In the next eight feet landward, the existing grade climbs 0.8 feet to reach an elevation of 6.8 feet NGVD at the seaward property line. In its unaltered state, the highest point of lot 10, along the representative cross-section, is 6.8 feet NGVD at the seaward property line. About 33 feet landward from the seaward property line, the elevation drops to 5.0 feet NGVD. About 27 feet landward from this point, the elevation drops to 4.0 feet NGVD. From this point 60 feet landward of the seaward property line, the elevation drops three times as quickly, losing another foot in elevation in 10 feet. The existing grade reaches 3.0 feet NGVD about six feet seaward of the landward property line. After this point, the elevation of lot 10 continues to drop at a constant rate for the remaining six feet. There are thus two obvious breakpoints in the existing grade of lot The first is at the seaward property line, where a crest is formed at 6.8 feet NGVD. The second is about 60 feet landward of the crest. At this landward breakpoint, the loss in elevation steepens from a ratio of 1 foot vertical per 30 feet horizontal to 1 foot vertical per 10 feet horizontal. As consistently found by DEP, the natural dune along lot 10 is defined by these two breakpoints, so that the natural dune extends 60 feet landward from the seaward property line. Thus, the seaward toe of the natural frontal dune extends to the seaward property line of lot 10, and the landward toe of the natural frontal dune extends at least 60 feet landward of the seaward property line. The natural frontal dune occupies at least the 60 seaward feet of lot 10 and possibly as much as the 95 feet found by DEP as typical for the area; a determination of the actual width would require extending the cross-section farther landward. Three-quarters of the proposed pilings would be placed in the natural frontal dune. Applicant proposes to construct a manmade dune whose width would extent from the seaward property line to a point seven feet seaward of the end of the proposed elevated septic tank drainfield, which would also be 17 feet from the most seaward piling. The manmade dune would be shorter, thinner, and taller than the natural frontal dune. The narrower width would then permit the construction of the house landward of the landward toe of the manmade dune, according to Applicant. The proposed dune would be 22 feet wide at its base with a 5-foot wide crest, except for the slopes beginning about six feet from the north and south property lines. Rising at a ratio of five feet horizontal per one foot vertical from the seaward property line, the manmade dune would rise 1.2 feet over a distance of six feet to reach a crest elevation of 8.0 feet NGVD. Running five feet at this elevation, the manmade dune would descend at the same slope a distance of 11 feet until it intersected the natural grade at a point 22 feet from the seaward property line. As discussed in the conclusions of law, Section 161.053(6) authorizes DEP to issue a CCCL permit for a single family dwelling seaward of the ECL, but only if the home is landward of the frontal dune. This case is the first time DEP has attempted to allow a landowner to satisfy the frontal-dune requirement by constructing a manmade dune seaward of the existing, natural frontal dune. Therefore, this case is also the first time DEP has attempted to allow a landowner to satisfy the frontal-dune requirement by placing the manmade dune on part of the natural frontal dune, rather than entirely seaward of the natural frontal dune. Petitioners attempted to show that the ECL should have been calculated using an annual rate of four feet of erosion. The effect of such a recalculation would extend the projected seasonal high water line to the landward property line of lot 10. Such findings lack legal relevance because no more restrictive standards would govern issuance of the permit. The same standards apply if any part of the structure (actually, "location") is in the ECL, which, as Applicant concedes, extends to part of the proposed home. However, Petitioners' proof suggests that DEP may have included a reading for one monument that should have been excluded under the rules and thereby underestimated the annual erosion rate by one foot. If so, even more of the structure would be within the ECL, and constant erosion would beach the proposed structure even sooner than DEP predicts. There is nothing theoretical about the beaching of homes in the immediate vicinity of lot 10. A house immediately to the north of lot 10 was removed due to exposure to the sea resulting from erosion. A house a short distance south of lot 10 was destroyed by wave action resulting from erosion, and three houses a short distance to the south are now regularly lapped by the waves of the Gulf. The beaching of homes is a serious matter. Obviously, the homeowner suffers emotional loss, and there is the financial loss of the structure itself. Also, between the time that the beach advances to the structure and the structure is removed by man or nature, the pilings on the beach-dune system will hasten erosion and interfere with public beach access. The key factual issue in this case is whether the proposed manmade dune qualifies as a frontal dune. There are two subsidiary issues, based on the statutory definition of "frontal dune." The first issue is whether the proposed manmade dune would have "sufficient vegetation, height, continuity and configuration to offer protective value." If so, the second issue is whether the proposed manmade dune would be the "first" dune. No statute, rule, or court decision defines the four criteria of vegetation, height, continuity, and configuration or states how much protection is required of a would-be dune. DEP has used no models nor relied upon much nonrule policy in making determinations in this case as to the sufficiency of the proposed manmade dune's vegetation, height, continuity, and configuration or the extent or adequacy of its protective value. The sole nonrule policy on which DEP bases its evaluation of a proposed manmade dune in this case is that a manmade dune presumably provides significant protection if it replicates the natural dune. But DEP has not explicated this nonrule policy. DEP has not identified which natural dune the manmade dune should replicate. There are many choices, such as the natural dune that existed 30 years ago, the natural dune that existed just before or after a nearby natural inlet closed 40 years ago, or the natural dune that existed just before or after the last 100-year storm. In relying on replication as the basis for gauging protective value, DEP ignores important variables that change over time, such as changes in wave direction and force and changes in the elevations of the nearshore bottom, beach, and dunes. Such changes may link protective value to different dune configurations from those previously in existence. Mere replication of an historic dune configuration seems even more questionable given the high erosion rate that has resulted in landward migration of the natural frontal dune. There are two major risks to the natural or manmade dune: constant erosion and storm events. The proposed manmade dune would not offer any protection from constant erosion. For protection from constant erosion, the proposed manmade dune would have to be at least 30 times longer and contain considerably more sand than is presently proposed. Using DEP calculations for determining the location of the ECL, the manmade dune would be completely eroded in seven years. Using the more likely and recent erosion rate of four feet annually, the manmade dune would be completely eroded in 51/2 years. Even the natural frontal dune will probably succumb to erosion in 32-33 years. A manmade dune not more than 100 feet long would not long resist constant erosion at this location. Thus, Applicant and DEP emphasize the protection claimed as against storm events. This claim is somewhat hampered by the lack of a clear target. DEP has not identified the extent of protective value from storm events that the proposed manmade dune must offer, such as the survival of at least 80 percent of the manmade dune after the first 100-year storm or tenth 10-year storm. The statutory definition of frontal dune identifies the four criteria that are most important in determining the protective value of a dune. The least important criterion is vegetation; obviously, sea oats offer less protection against storm surge than does a continuous, amply configured dune. But vegetation helps hold the dune together and may slowly build the dune by capturing sand. In these ways, vegetation thus contributes indirectly to the level of protection provided by a dune. Continuity describes the length of a dune in a shore- parallel direction. A long, continuous dune offers protection; a short pile of sand does not. In this case, continuity is the most important criterion due to the short length of the proposed manmade dune. Configuration describes the dune's height, width, crest, and slopes. A dune's configuration determines the volume of sand that comprises the dune and is available to absorb the wave energy associated with a storm event. The CCCL permit conditions in this case adequately assure that the sand deposited onsite would be revegetated. But satisfaction of the criterion of vegetation does not assure that the proposed manmade dune would protect structures landward of the dune or the beach-dune system. The failure of the proposed manmade dune to satisfy the other statutory criteria is determinative in finding that the proposed manmade dune does not qualify as a dune. The crucial deficiency of the proposed manmade dune is its discontinuity. The crest would taper off after 88 feet in a shore-parallel direction; the base would extend another six feet in either direction. The discontinuity of the proposed manmade dune reduces it to a long pile of sand running 100 feet long and 22 feet wide at its base and 88 feet long and five feet wide at its crest. This sand feature would absorb little of the energy from storm- driven waves, which would easily pass the proposed manmade dune on either side. This surging water would immerse the property landward of the dune mound and erode the dune from the landward, as well as the seaward, side. The criteria of height and configuration must be considered in the context of the proposed dune's discontinuity. The height of the proposed manmade dune would be 1.2 feet higher than the height of the natural frontal dune. With water passing the 88-foot long sand feature at either end, however, its superior height would offer no more protection that presently available from the natural frontal dune. The protective value of the proposed manmade dune is not enhanced by its width, which, at 22 feet, would be about one-third the width of the 60- foot wide natural dune. The slopes of the proposed manmade dune--although not exceptionally steep--are also much steeper, especially on the landward side, than the slopes of the natural frontal dune. The 5:1 slope of the landward side of the proposed manmade dune is six times as steep of the 30:1 slope of the landward side of the natural dune, and the 5:1 slope of the seaward side of the dune is twice as steep as the approximate slope of the seaward side of the natural dune. Waves often overtop a dune during a major storm event. Overtopping is not typically catastrophic to a natural dune. But there is no assurance that overtopping would not be catastrophic to the proposed manmade dune, due to its thinner profile and steeper slopes. Due to shortcomings in continuity, height, and configuration, Applicant and DEP have failed to show that the proposed manmade dune would offer any protection to the landward structures of the proposed dune, which is thinner, steeper, and much, much shorter than the natural frontal dune. The proposed manmade dune imperils the beach-dune system and public beach access. The addition of the proposed home, which will soon find itself on the beach, would accelerate the erosion of the beach- dune system and interfere with public beach access. The proposed manmade dune fails to qualify as the frontal dune for a second, independent reason, even if the proposed dune provided sufficient protective value under the four criteria, which it does not. The proposed manmade dune would not be the "first" dune. The natural dune is a mound or bluff of sand located landward of the beach and contains sufficient vegetation, height, continuity, and configuration to offer protective value to the property landward of the dune. The first dune, as encountered in a landward direction from the water, begins at the seaward property line. At this point are the seaward toe of the natural frontal dune and the seaward toe of the proposed manmade dune. Building a manmade dune on top of part of the natural frontal dune would not eliminate the natural frontal dune. At most, the addition of a manmade dune at this location would leave two frontal dunes--a thinner, steeper, discontinuous, shorter, higher manmade dune and a wider, shallower, continuous, longer, lower natural frontal dune. Even assuming that the proposed manmade dune qualified as a dune in terms of protection, which it does not, it does not offer as much protection as the natural frontal dune. DEP has failed to explicate its nonrule policy preferring the less viable manmade dune in determining whether to issue a CCCL permit under Section 163.053(6) for a structure that would be imminently threatened by a fast-eroding, dynamic beach-dune system on a low- lying bridgeless barrier island.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application for a CCCL permit. ENTERED on January 22, 1996, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 22, 1996. APPENDIX Rulings on Respondent's Proposed Findings 1-5 (through "coastal construction control line"): adopted or adopted in substance. (remainder)-6 (first two sentences): rejected as subordinate and irrelevant. (remainder): adopted or adopted in substance except as to the elevation at the seaward property line. 7-10: adopted or adopted in substance. 11: rejected as subordinate. 12-13: adopted or adopted in substance. 14 (except last sentence): rejected as unsupported by the appropriate weight of the evidence and subordinate. 14 (last sentence): adopted or adopted in substance. 15-16 (first sentence): rejected as recitation of evidence and subordinate. 16 (second sentence): adopted or adopted in substance. 16 (remainder): rejected as subordinate, except that the annual rate of three feet is conservative. 17-22: adopted or adopted in substance. 23: rejected as recitation of evidence and unsupported by the appropriate weight of the evidence. 24 (except last sentence): rejected as recitation of evidence. 24 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 25-28: rejected as subordinate, unnecessary, recitation of evidence, and irrelevant. 29-31: adopted or adopted in substance. 32: rejected as legal argument and recitation of evidence. 33-34: rejected as unsupported by the appropriate weight of the evidence. 35: adopted or adopted in substance. 36-37: rejected as subordinate and recitation of evidence. 38 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 38 (remainder): rejected as recitation of evidence. 39: adopted or adopted in substance except that the proposed manmade dune is not an "enhancement" of the natural frontal dune, the slopes of the manmade dune are not "gentle" when compared to the natural frontal dune, and the landward toe of the natural frontal dune is not at 5.8 feet NGVD. 40: adopted or adopted in substance except that the 5:1 slope is relatively steep. 41: rejected as unsupported by the appropriate weight of the evidence and recitation of evidence. 42: adopted or adopted in substance. 43-44: adopted or adopted in substance as to the natural frontal dune. Rejected as unsupported by the appropriate weight of the evidence as to the proposed manmade dune. 45: rejected as unsupported by the appropriate weight of the evidence as to the importance of vegetation. 46-49: rejected as subordinate. 50 (first sentence): rejected as unsupported by the appropriate weight of the evidence as the proposed manmade dune would be tapered at either end to join the existing grade at the north and south property lines. 50 (second sentence): rejected as irrelevant. 50 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 51-54: rejected as recitation of evidence and subordinate. 55-62: rejected as irrelevant. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Enola T. Brown Jodi Corrigan Annis, Mitchell Post Office Box 3433 Tampa, Florida 33601 Kevin S. Hennessy Rod A. Feiner Lewis, Longman & Walker, P.A. 2000 Palm Beach Lakes Blvd. Suite 900 West Palm Beach, Florida 33409 Dana Wiehle Assistant General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether the application submitted on behalf of the City of Miami Beach, Florida (City) for a coastal construction control line (CCCL) permit should be approved.
Findings Of Fact The Petitioner, Wallace Corporation, owns and operates the Richmond Hotel located at 1757 Collins Avenue, Miami Beach, Florida. The Richmond Hotel (the Richmond) was built in 1941 by Allan Herbert's grandfather. It has been continuously controlled by Mr. Herbert's family since that time. The Richmond prides itself on its appeal to upscale international travelers. It seeks to offer unique accommodations, service, and privacy. The Richmond was recently renovated and restored at a cost of several million dollars. The guest rooms, roof, plumbing, and electrical systems were upgraded while the original Art Deco decor was preserved. Included in the renovations were improvements to the pool area, landscaping, and a dune walk-over. These renovations sought to appeal to a "boutique" clientele seeking a peaceful and tranquil housing accommodation while enjoying the Miami Beach locale. The Respondent, City of Miami Beach, is the applicant for the instant CCCL permit. Coastal Systems was retained by the City to file and procure the subject permit which is identified in this record as CCCL permit no. DA-361. The CCCL permit application was filed with the Department on June 19, 1997. Since that time it has been modified to address Department concerns. The Department of Environmental Protection is the state agency charged with the responsibility of reviewing applications for CCCL permits. In its review of the instant permit, the Department deemed the application complete on February 5, 1998. Thereafter, the Department's Bureau of Beaches and Coastal Systems entered a proposed order to approve CCCL permit no. DA-361. If approved, this permit will allow the construction and improvements sought by the City. The project proposed by the City will allow for the construction of a beachwalk that would extend from Lummus Park at 14th Lane to an existing boardwalk at 21st Street. This beachwalk, along with its attendant improvements, will allow the public to access the beach at several controlled points along the dune system. Additionally, it will allow pedestrian traffic to move efficiently length-wise along the dune system. The project concept is to limit the number of points across the dune system that the pedestrian public uses for access to the beach. Further, the beachwalk will offer the public an efficient means of traveling north to south or vice versa without reverting out to Collins Avenue. Shifting pedestrian traffic away from Collins Avenue should improve traffic conditions in this highly urbanized area. The design of the beachwalk minimizes impacts to the beach dune system and prevents erosion by keeping pedestrians on the walk and off the dune. The design will act as an erosion preventative measure and should assure minimal adverse impacts to the dune and beach system. In this regard, it is critical to note that the dune and beach system in this area of Miami Beach are the product of beach renourishment. The beach itself was created in the late 1970s and 1980s by the U.S. Army Corps of Engineers. In order to address the severe erosion that threatened properties along Miami Beach, the Corps stepped in and deposited millions of cubic yards of sand on the beach. The beach renourishment project expanded the beach from government cut to 32nd Street. It was designed to provide storm protection for upland owners by widening the non-existent beach and by creating a dune system. The dune was established immediately seaward of the erosion control line (ECL). This ECL had formerly been the mean high water mark for the beach prior to the massive undertaking to deposit sand along the coast. The newly created dune served as a dike to reduce the impacts which would be expected from a 100-year storm event. In theory, water generated in such a storm event would be blocked from coming onshore thereby minimizing damage from wave or surf action upland of the ECL. To enhance the dune's efficiency in this regard, a vegetation program was implemented to address wind and pedestrian erosion to the dune system. This vegetation program will be expanded as explained below if the instant permit is approved. Currently the dune system is marred by cross-over channels cut by pedestrian traffic through the dune. These pathways provide convenient access to the beach but do so at a cost to the dune's efficiency and security. Because they cut through the dune in an easterly direction, they allow wind and, potentially water in a storm event, to gouge the dune. The cuts in the dune undermine the efficiency of the erosion control. By installing the beachwalk proposed by the City, the number of cuts across the dune will be minimized. Moreover, they will be designed to trap sand and to promote erosion control. The areas which have already been gouged will be re- vegetated to deter pedestrian use. The native vegetation planned for this work should promote erosion control and enhance the dune system. The types of vegetation and manner of planting should also deter future unauthorized pedestrian access through the dune. Subsequent to the beach renourishment program, the beach, along the entire project length, has experienced a natural accretion. This means that natural erosion is not occurring. Natural erosion results from wind, tidal, or other naturally occurring influences. In contrast, however, are the man-made erosion sources: pedestrian paths, cuts in the dunes which endanger the dune and limit its effectiveness. The danger from these unregulated cuts could potentially undermine the dune and accelerate erosion from natural events. Dune cross-walks such as proposed by the instant project (and as maintained by the Petitioner) are required for the prevention of erosion. Thus the project in its entirety will prevent erosion. The proposed project will not adversely impact the beach-dune system. Petitioner presented no evidence to establish a significant impact. The project creates a net improvement of sand and vegetation to the dune and will restore all dune cuts. The beachwalk is proposed to follow the shore, parallel to the beach. It is to be constructed of paver blocks and is to accommodate controlled movement of pedestrian traffic and bicyclists. While it could accommodate emergency vehicle traffic such as police or medical rescue, it is not designed for such use on a routine basis. The beachwalk will improve public access at 17th and 18th Streets. These access points will give the public better availability of parking and public accommodations. All of the street end dune cross-overs are designed to trap sand and to minimize erosion to the dune. The proposed access points significantly improve the west to east access to the beach. As currently designed, the beachwalk will not cause wind borne or water borne projectiles during a storm event. Moreover, the paver block walk is located landward of the dune in most instances. Even this walk has been designed to break apart and result in no increased erosion during a storm event. The beachwalk will be constructed of paver blocks installed on a crushed shell or rock base. This base should give the path stability under normal use yet give way in a significant storm event. In some areas the height of the dune will be increased by the placement of additional sand fill. Foundations for improvements proposed along the beachwalk are also designed to give way in a storm event. Thus, planters or low walls should easily collapse if undermined in a storm event. All of the improvements seaward of the ECL are minor structures. Most of the project will be located on state lands. In the instances where the project crosses or touches private property the City recognizes it must secure easements or other appropriate access to construct and maintain improvements. It is unlikely that the improvements will cause scour. It is also unlikely that the project will accentuate or contribute to storm surge. As currently proposed, the beachwalk project will have no adverse impact on the dune system. Moreover, the project will create an improvement to the system by adding sand, stabilizing and improving vegetation on the dune, controlling pedestrian access to the beach, and trapping sand. Prior to 1980 there was no documented turtle nesting on the project area of Miami Beach. Since that time, and the creation of the beach from renourishment, there has been a marked increase in turtle nesting in the area. While such nesting is encouraged by the Department, due to the urbanized nature of the area and the intense pedestrian and public use of the beach, all turtle nests located along this beach are relocated to hatcheries. This relocation policy and practice for the area existed before the proposed project was submitted for approval. The relocation program is managed by Miami-Dade County under a permit issued by the Department. Pursuant to the permit, the County conducts nesting surveys, operates self-release and restraining hatcheries, documents false crawls, and rescues turtles for relocation. None of the foregoing activities will change if the instant permit is approved. Given the width of the beach in the subject area of the proposed beachwalk, the limitations on the lighting proposed for the path, and the current restraints employed to deter the public from interfering with turtle nesting, it is unlikely turtle nesting in the subject area will change. If anything, there is a possibility that nesting may increase. For reasons unknown to the experts, turtle nesting on Miami Beach is greater in the better lit areas of South Beach. More turtles have nested along the better lit area, have had more false crawls, and have resulted in more nest re-locations from the highly commercial area of South Beach than in the darker, more traditional beach of the subject area. As turtles and hatchlings become disoriented by lights, this documented phenomenon seems contrary to the typical turtle scenario which would have the nesting turtle approach a dark, quiet beach, nest within a limited distance of the rack line (the line of seaweed deposited by tide along the beach), and return to the ocean. At the area of the Richmond, turtle nests are typically found within 50 feet of the rack line. Turtles nest within a limited distance of this line, rarely more than 100 feet. Since the beach is several hundred feet wide along the project length, it is unlikely nesting turtles will be deterred by the construction of the path. Additionally, it is unlikely the lights proposed for the beachwalk will adversely impact turtles. The number, placement, and limitations proposed on the lights will adequately minimize lighting impacts expected from this project. Given the need for some lighting to address security and safety issues for the public using the beachwalk, given the relocation of all turtle nests on the subject beach, given the project distances and design considerations to be employed for the path, and given the lack of substantial evidence to the contrary, it is found that the proposed project does not constitute a "take" of marine turtles in the project area. Miami Beach is a very well lit, commercial area. The pockets of dark beach are only dimly lit in comparison to the more pronounced lights from night clubs or other entertainment areas. The lighting plan proposed by the City adequately addresses the potential for impacts to turtles such that the project should not have a significant adverse impact. To further limit impacts, however, construction of the project should not occur during nesting season. The proposed beachwalk with its attendant improvements does not cross in front of the Richmond. The project stops immediately to the south of Petitioner's property. The project picks back up immediately to the north of Petitioner's property. The original design of the project was modified in this fashion because Petitioner opposes the construction of the path and its attendant improvements. Because Petitioner opposes the project, no portion of the beachwalk will impede Petitioner's riparian rights to the beach/ocean. None of the proposed improvements will be constructed seaward of the ECL along Petitioner's property. All owners of property upon whose land the beachwalk will be constructed, have or will be required to give written consent to the project. Any public entity upon whose land the beachwalk will be constructed, has or will be required to give written consent to the project. Petitioner expects the beachwalk to damage business at the Richmond. Mr. Herbert believes the damage should be comparable to the events such as the cold winter of 1958, World War II, and, more recently, the murder of foreign visitors. While it is certain the beachwalk has the potential for increasing pedestrian traffic along the beach in front of the Richmond, any damage suggested by Petitioner is too remote or speculative to be of significant consideration. The construction of the proposed beachwalk will have no adverse impact on the physical condition of Petitioner's property. The proposed project will not create a significant adverse impact to the property of others. Petitioner was not required to establish its dune cross-over was required for erosion control. All dune cross- overs allowed by the Department previous to the instant request were not required to establish that they were required for erosion prevention. All of the existing and proposed cross-overs are seaward of the ECL. No upland riparian rights will not be adversely affected by the project. Petitioner's rights as an adjacent property owner to the project will not be adversely affected by the beachwalk. Petitioner will not be adversely affected from storm impacts as a result of this project.
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 approving CCCL permit no. DA-361 with the conditions as set forth in the proposed agency action order and with additional assurances that construction of the project will not occur during turtle nesting season, and that all property owners over whose land the project will meander provide written approval of, and authorization for, the proposed improvements to their properties. DONE AND ENTERED this 8th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. Parrish 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 8th day of June, 1999. COPIES FURNISHED: Neil Chonin, Esquire Chonin, Sher & Navarrete, P.A. 95 Merrick Way, Suite 100 Coral Gables, Florida 33134 Joseph C. Segor, Esquire 12815 Southwest 112th Court Miami, Florida 33176-4431 Ricardo Muratti Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Earl G. Gallop, Esquire Nagin, Gallop, Figueredo, P.A. 3225 Aviation Avenue, Suite 301 Miami, Florida 33133-4741 Raul J. Aguila, Assistant City Attorney Office of the City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue for determination is whether the Town of Indian River Shores is entitled to a coastal construction control line permit to construct a beach access seaward of the coastal construction control line in Indian River Shores, Florida.
Findings Of Fact The Town of Indian River Shores (Town) is an incorporated municipality located on a five-mile stretch of the Atlantic Ocean in Indian River County, Florida. The Town has a population of approximately 2,700 residents. The Town's Public Safety Department has the combined functions of law enforcement, fire protection, and life support (lifesaving). All of the Officers of the Public Safety Department are cross-trained and cross-designated as police officers, firefighters, and emergency service specialists who are either paramedics or emergency medical technicians (EMTs). The Officers are on eight-hour shifts; each shift has approximately four to five Officers on duty, i.e., a police officer, a firefighter, a paramedic, and an EMT. When fully staffed, the Public Safety Department consists of 25 Officers. Because of the small number of Officers and their varied duties, restrictions and limitations are placed on their deployment. One of the vehicles used by the Public Safety Department in the performance of duties is an all terrain vehicle (ATV). The Public Safety Department has one ATV which is used on the beach for patrol and rescue purposes and for moving rescue and lifesaving equipment to and from the beach. In order to access the beach, the Public Safety Department must travel across the dune, primarily through private property (Corrigan Beach) located approximately 3.4 miles from the office of the Public Safety Department. The Town determined that this location was unsatisfactory for beach access due to the property being offered for sale, the great distance of the property from the Public Safety Department's office, and the dune being breached each time the ATV is taken onto the beach. The Town determined, however, that Beachcomber Lane, a public street within the Town, was the best choice for beach access and entry by the Public Safety Department. Beachcomber Lane is approximately 1,000 feet in total length and extends from Highway A1A to the bluff of the Atlantic Ocean. The Pubic Safety Department is located approximately 1,500 feet from Beachcomber Lane. The residents of Beachcomber Lane include Peter Broom, Jeremy R. Geffen, and Duane Jackson. At various times, the Public Safety Department has also used Beachcomber Lane as an access to the beach on emergency bases. Currently, a public raised wooden walkway, with steps, leads over the dune and onto the beach at the Atlantic Ocean end of Beachcomber Lane. In order for the Public Safety Department to obtain beach access by way of Beachcomber Lane, an access ramp will have to be constructed seaward of the coastal construction control line (CCCL). Such construction requires, among other things, a permit from the Department of Environmental Protection (DEP). To design and present the plan to the DEP for a proposed beach access by way of Beachcomber Lane, the Town obtained the services of Coastal Technology Corporation (Coastal Technology), an engineering firm. On July 24, 1996, Coastal Technology filed an application on behalf of the Town with the DEP for a permit to construct a beach access ramp seaward of the CCCL. The application process included the submission of detailed drawings and other documents required by DEP. In the application, Coastal Technology described the construction, in pertinent part, as follows: 6. The proposed work consists of the removal of Brazilian Pepper . . . and installation of a 100 foot (approximate) long, 10 foot wide stabilized emergency access ramp. To minimize the impact to the existing native vegetation, the proposed emergency access ramp will be located approximately 8 feet from the north Right-of-Way within the area of the existing Brazilian Peppers. . . . A 2-inch layer of washed concrete sand will be placed between the limestone and paver blocks for a proper leveling of the previous paver blocks. The paver blocks will be TURFSTONE . . . which . . . have been permitted by DEP at other locations. . . . The openings in the TURFSTONE will be filled with excavated beach sand from the proposed access ramp footprint. Any remaining sand . . . will be placed at the seaward end of the proposed access ramp. To mitigate for any potential impact to native vegetation, 6 sea grapes will be installed . . . and any sea oats removed during excavation will be kept alive and replanted within those areas void of sea oats. Three 6-inch by 6-inch pressure treated posts will be installed with a chain fence. A locking chain fence will be used to prohibit the general public from accessing the beach through the emergency access ramp. In the application, Coastal Technology presented the justification for the construction, in pertinent part, as follows: 7. The proposed access ramp at Beachcomber Lane is specifically for the use by the Town of Indian River Shores for emergency access to the beach. The access ramp will have a locking chain only accessible by the Public Safety Department and has been designed to accommodate four-wheel drive patrol and EMT vehicles. . . . Beachcomber Land [sic] site was chosen by the Town because of : 1) the relative stability of the shoreline at that location; and, [sic] 2) accessibility from the Indian River Shores Town Hall which is on the west side of A1A across from Beachcomber Lane. The application indicated that the proposed beach access ramp was being constructed for emergency access to the beach. However, prior to the filing of the application, both emergency and routine patrol access by the Public Safety Department were discussed as uses for the access ramp at public meetings by the Town's public officials in which the subject of the access ramp was brought up. Such use for the beach access ramp was contemplated by the Town from the very inception of the plan for the access ramp. Routine patrol is defined by the Public Safety Department to be patrolling approximately every other day for one or two hours. By notice dated August 7, 1996, the DEP requested public comment on the Town's application for the CCCL permit. By letter dated August 21, 1996, residents of Beachcomber Lane, including Mr. Broom, Mr. Geffen, and Mr. Jackson, provided the DEP with their comments on the Town's application. On September 3, 1996, the Town's application for the CCCL permit was considered complete by the DEP. On November 6, 1996, at the request of DEP, the Town conducted a public meeting to obtain public comments regarding the proposed beach access ramp. The residents of Beachcomber Lane were notified of the public meeting, and among the residents attending the meeting were Mr. Broom, Mr. Geffen, and Mr. Jackson. At the public meeting, the Town clearly stated that the proposed beach access ramp would be used by the Public Safety Department for both emergency and routine patrol purposes with the ATV. Also, the Director of the Public Safety Department indicated that, based upon information collected regarding criminal activity and suspected criminal activity along the beach, routine patrol was needed.2 The application process culminated in the issuance of a Final Order by the DEP on November 27, 1996, granting the CCCL permit, with special permitting conditions in addition to the standard conditions. The CCCL permit granted by the DEP was Permit No. IR-507. The proposed beach access ramp to be constructed is approximately 100 feet in length and 10 feet in width. The construction will utilize turf blocks which permit grass and foliage to grow through the blocks on the access-way. A provision of the DEP Final Order requires the removal of exotic plants (Brazilian Pepper), which are not native plants, and the replanting of native vegetation adjacent to the access-way. On December 6, 1996, public notice of DEP's issuance of the CCCL permit to the Town was published in the Town's local newspaper. The Town agrees to abide by the special conditions, as well as the standard conditions, to the issuance of the CCCL permit. The beach access ramp on Beachcomber Lane will be used by the Town's Public Safety Department for public service purposes, including emergency rescue, training, and routine patrol. Beachcomber Lane is the appropriate location for the beach access ramp. The DEP has determined that the construction of the beach access ramp meets all the requirements of the DEP for the issuance of the CCCL permit. The DEP has determined the proposed beach access ramp to be a minor structure. The construction of the proposed beach access ramp will cause no significant adverse impact or cumulative impact on the beach dune system. The design of the proposed beach access, with the conditions added by the DEP, minimizes adverse impact of the access ramp. Native vegetation will be maintained and replenished around the proposed beach access ramp. The proposed construction of the beach access ramp will not result in a significant adverse impact to the beach and dune system. No net excavation in the sandy soils seaward of the control line will result from the construction. No structurally induced scour will result from the construction because the proposed structure is designed to break- away during a storm. The potential for wind and waterborne missiles during a storm is minimized by the construction. Public access to the beach is not interfered with by the beach access ramp. The construction of the beach access ramp will occur in a nesting habitat of the marine turtle, i.e., loggerhead, leatherback and green turtle. The DEP addressed protection of the nesting area through one of its special conditions to the issuance of the CCCL permit. The special condition included "no construction, operation, transportation or storage of equipment or materials seaward of the dune crest during the marine turtle nesting season" which is March 1 through October 31 of each year. With this special condition, the construction, itself, will have no adverse impact on the marine turtle or the turtle nesting. The Town agrees to abide by this special condition.3 The access ramp, itself, will have minimal impact on the marine turtles and will not cause a "take" of the turtles. Furthermore, the use of the ATV by the Public Safety Department will have no adverse impact on the marine turtles or the turtle nesting. 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.
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 granting the Town of Indian River Shores the Coastal Construction Control Line Permit No. IR-507, with the special conditions as may be required by the Department for the protection of marine turtles. DONE AND ENTERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1997.
The Issue The issues to be resolved in this proceeding concern whether the Department of Environmental Protection (DEP) has jurisdiction over the activities encompassed by Permit Application BA-475 (Amended) and, if so, whether issuance of the permit complies with the applicable provisions of Section 161.053, Florida Statutes, and Chapter 62B-33, Florida Administrative Code.
Findings Of Fact Undisputed Facts: The following relevant facts are established by stipulation or admission and are not disputed. The proposed project is landward of the seasonal high waterline within thirty (30) years of December 1996; The project will not interfere with public access; The project will not result in the net excavation of in situ sandy soils seaward of the coastal construction control line (CCCL); Any sandy soil or material excavated for the proposed project seaward of the control line will remain seaward of the control line or setback and be placed in the immediate area of construction; The proposed project complies with the structural provisions of Rule 62B-33.007(2), Florida Administrative Code; The proposed project complies with Rules 62B-33.007(3)(a) through (d) and (f) through (h), Florida Administrative Code. Additionally at hearing, the Petitioners and Intervenor announced that they would not present any evidence on the issue of adverse impacts on marine turtles. Accordingly, impacts on marine turtles are not at issue in this proceeding. Project Description: RHE has proposed constructing a restaurant, pool, deck and stormwater basin within the Boardwalk Beach Resort on Panama City Beach, in Bay County, Florida. The Boardwalk Beach Resort consists of four (4) multi-story hotels with six hundred (600) rooms all together, several pools, boardwalks extending the length of the property and approximately seventeen hundred (1,700) to eighteen hundred (1,800) feet of beach front property. The project site is between Thomas Drive to the north and the Gulf of Mexico to the south. On July 23, 1996, RHE applied to the Department for a CCCL permit to construct, seaward of the interim line established by the emergency Order of October 16, 1995, the restaurant, swimming pool and deck. Part of the proposed deck was located seaward of the coastal construction setback line. On December 9, 1996, the Department issued a permit to RHE to construct the restaurant building with an attached deck fifteen (15) feet landward of the location originally proposed by RHE, as well as for construction of the swimming pool. On December 16, 1996, the Department issued to RHE an Amended CCCL permit authorizing construction of a restaurant building located five (5) feet landward of the location originally proposed by RHE, as well as a deck re-designed so that it would be structurally independent of the restaurant, a swimming pool and a dune enhancement plan which would restore the sandy dune seaward of the pool and restaurant location to its pre-hurricane Opal condition and elevation. The Amended permit would require re-vegetation of the dunes at the site with native plants to secure the dunes from erosion. Both the original and the Amended permits authorized the removal of the stormwater drainage pipe that carried stormwater onto the beach that had caused erosion of the beach near the project area. On January 9, 1997, the Petitioners timely filed a Petition challenging the Department’s decision to issue the Amended permit. On February 7, 1997, the Department established a new CCCL line for Bay County that was farther landward than either the old coastal construction setback line or the interim line established in the October 1995 emergency order. The project authorized by the Amended permit would thus be located entirely seaward of the newly established CCCL for Bay County. As of February 7, 1997, the date the new line was established, RHE had not begun working on the foundation or continued construction above the foundation for any of the structures authorized by the Amended permit. The Department determined that the project did not meet the requirements of Section 161.053(9), and Rule 62B-33.004(1), Florida Administrative Code, so as to qualify for an exemption from complying with the newly established CCCL for Bay County, as the project was not “under construction” at the time the new CCCL was established. The beach and dunes system is wide and the dune system is a significant one, with elevations of fourteen (14) to sixteen (16) feet NGVD, with a wide dune crest. The dry sandy beach in front of the site, even after hurricane Opal struck, remained approximately one hundred twenty-five (125) feet wide. From 1855 to 1934 the shoreline of the site was mildly accretional. Thereafter, until 1955 accretion was less significant, but from 1955 to 1976 became significant. From February 1992 through April 1995, the project site experienced a period of mild erosion. Accordingly the long-term data shows, in essence, that the shoreline is relatively stable at the site. Hurricane Opal caused the dune to erode or retreat landward by approximately a distance of fifteen (15) feet. Hurricane Opal was a major magnitude storm with one hundred twenty-five (125) mile per hour sustained winds and one hundred forty-four (144) mile per hour measured gusts when it came ashore in the vicinity of the proposed site. The dune portion of the proposed site now essentially mimics the pre-Opal conditions. Following hurricane Opal the applicants spent approximately Four Hundred Thousand Dollars ($400,000.00) in dune restoration along the entire shoreline of the resort property, some seventeen hundred (1,700) to eighteen hundred (1,800) feet of shoreline. That dune restoration work was permitted by the Department. There is now little native salt-tolerant vegetation on the site in its natural pre-construction condition. An existing stormwater drainage pipe and catch basin extend onto the beach seaward of the location of the proposed restaurant. The existing pipe and basin have caused erosion of the beach and the sand dune system on the project site. Under the amended permit proposal the stormwater pipe and basin would be removed. All of the proposed structures authorized by the Amended permit would be landward of the pre-Opal coastal construction control line. The proposed pool will be located landward of the dune crest and fifty-five (55) feet landward of the toe of the dune. The proposed restaurant would also be located landward of the dune crest and two hundred five (205) feet landward of the mean high waterline. The original design of the project was for a much larger, three story restaurant. The original pool design called for a one hundred twenty foot pool extending from in front of the Comfort Inn to beneath the proposed restaurant, in effect being located on the first floor of the restaurant. At DEP’s request the size of the pool was reduced by fifty percent (50%) and it was relocated into the shadow of the Comfort Inn next door so that it will no longer serve as an integral part of the restaurant. Pool depths were also reduced to three (3) feet at DEP’s request. The pool, at DEP’s request, will now be constructed of Gunnite concrete material and will be frangible, that is, it will be designed to break up in storm-surge or storm-waves. This will serve to decrease the erosion which could be caused by storm-waves flowing over and around the pool structure. The same is true of the restaurant deck, which at DEP’s request has been re-designed to be separate from the restaurant and also designed to fail in storm conditions. The frangibility of the deck, as now proposed, will retard erosion during storm conditions, as the stormwater or waves will demolish the deck and remove it rather than scouring the sand dune around it. The Department also requested that the existing stormwater drain pipe and catch basin be removed and such a removal has been made a condition of the subject permit. This will require that the applicant design and build a new stormwater system. The applicant has agreed to this condition and the others referenced above. Vegetation: Construction of the proposed project will not result in the removal or destruction of native vegetation. There is no such vegetation on the site where the construction will take place. Thus, construction of the project will not result in removal or destruction of native vegetation which will either cause de-stabilization of a "frontal, primary or significant dune" or cause a significant adverse impact to the beach and dune system due to increased erosion by wind or water. A special condition of the proposed amended permit requires that the applicant submit a dune enhancement plan for restoration of the dunes seaward of the pool and restaurant to its pre-hurricane Opal condition, including re-vegetation. Such a plan was submitted by the applicant and it includes the planting of sea oats on one (1) foot centers. The planting of sea oats as part of the dune enhancement plan will constitute a significant improvement to the native vegetation situation at the site. Disturbance of Sandy Soils: The project will not result in the removal or disturbance of in situ sandy soils of the beach and dunes system to such a degree as to have an adverse impact on the system. That is, the existing ability of the system to resist erosion during a storm will not be reduced. The proposed project will not result in the removal or disturbance of in situ sandy soils of the beach and dune system to such a degree as to cause adverse impact to those systems by lowering existing levels of storm protection to upland properties and structures. All the sandy material excavated for the pool and the stormwater basin will be placed seaward of these structures on the dune in the immediate area of the construction and seaward of the CCCL. The additional sand to be placed on the dune as part of the dune enhancement plan will, in fact, enhance the ability of the system to resist erosion during the storm. The ability of the dune to resist storm erosion is primarily a function of the quantity of sand within the dune system. The additional sand to be placed on the dune as part of the dune enhancement plan will enhance the protection of upland properties and structures including those of the Petitioners and Intervenor. Excavation of the stormwater basin will not destabilize the dune on the project site. The applicant is moving the stormwater basin landward by twenty (20) feet which will minimize the potential impacts of the basin on the dune system. The preponderant evidence establishes that the structure of the pool and pool deck will not cause an increase in structure-induced scour of such a magnitude as to measurably affect shoreline change rates. Scour caused by the pool will not significantly interfere with the beach-dune system's ability to recover from a coastal storm. The frangible design of the pool decreases the likelihood that it will cause any scour. It will break up in a storm so that any scour caused by the pool would be minimal. Any scour caused by the pool would not disturb the topography or vegetation such that the coastal system would become unstable or suffer catastrophic failure. Scour would have no measurable effect. The proposed restaurant and deck will not cause an increase in structure-induced scouring during a storm of such a magnitude as to have a significant adverse impact. The restaurant and deck will be constructed on piles. Scouring around piles, in a storm situation, is very localized and insignificant. By constructing the restaurant and deck on piles at the design elevation, storm-surge and storm-waves will pass under the deck and restaurant. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune to permit natural shoreline fluctuations. The structures will be built on pilings and will be elevated above the storm-surge; thus they will not interfere with shoreline fluctuations. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to preserve and protect beach and dune system stability, in terms of the lack of interference with such. Other structures in the area are seaward of the proposed restaurant and deck, including Pineapple Willies Restaurant, located eleven hundred feet to the west. Those structures have not caused instability of the beach during hurricane Opal. Typically, existing structures do not cause instability of the dune systems. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to allow for natural recovery to occur following storm-induced erosion. Natural recovery commonly occurs under pile-supported elevated structures which is not the case with “slab-on-grade” structures which are not elevated. The pool and pool deck will permit natural shoreline fluctuations, will preserve and protect beach and dune stability, and will allow recovery after a storm because they are designed as frangible structures that will fail and disintegrate in a storm situation. Thus they will not appreciably affect the beach-dune system. Line of Construction: Most coastal construction in Bay County extends out to the pre-Opal CCCL while some construction extends beyond it. Throughout Bay County the line of construction is the pre-Opal CCCL. The line of construction is determined by the most seaward extent of similar existing structures in the immediate area of the proposed structure under consideration in a CCCL permit application. The proposed pool is landward of the line of construction determined by existing pools within the boardwalk beach resort. There are a number of existing multi-story structures to the east of the proposed restaurant that are located out to the pre-Opal CCCL. That pattern of construction continues to the east of the proposed restaurant. Approximately one thousand (1,000) feet to the east of the proposed restaurant is an existing multi-story major structure that is built out to the pre-Opal CCCL. The beach in the area of the project is highly developed with commercial and condominium buildings. Within eleven hundred to twelve hundred feet to the west of the proposed restaurant there is another major structure built out to the pre-Opal CCCL. Just beyond that structure are a number of additional major structures, including Pineapple Willie's Restaurant, that are constructed out to the pre-Opal CCCL. The multi-story major structures to the east and west of the proposed structure are within the immediate area of the restaurant. The proposed restaurant is located landward of the line of construction established by these major structures within its immediate area. That line of construction is the pre-Opal CCCL. DEP did not consider major structures more than one thousand (1,000) feet from the proposed restaurant when it determined the line of construction for the restaurant. It is DEP’s policy when reviewing CCCL applications not to consider structures more than one thousand (1,000) feet from a proposed structure when determining the line of construction. The one thousand (1,000) foot limit DEP uses to determine the line of construction is not embodied in a rule. There was no preponderant coastal engineering or other scientific evidence which justifies the one thousand (1,000) foot limit DEP imposes when it determines the line of construction. It was appropriate to consider the existing structures referenced above in assessing the line of construction for this amended permit application and considering those lying just beyond the one thousand (1,000) foot distance, because those existing structures dominate the coastal processees in the region and only lie just beyond one thousand (1,000) feet to the east and twelve hundred (1,200) feet to the west. If the Department had considered the above-referenced existing major structures just beyond one thousand (1,000) feet of the proposed restaurant, it would have been shown that the proposed project was landward of the thus established line of construction. No preponderant evidence was offered to explicate why the one thousand (1,000) foot limit was automatically adhered to in this situation. Moreover, the line of construction is not a prohibition in and of itself but rather is only one of several criteria that must be balanced in determining whether or not to approve a CCCL permit application. Projects have been approved seaward of the line of construction in the past. Minimization The location of the swimming pool at the most practicable landward location, the reduced size of the pool, as well as its frangible design and limited depth, has minimized its impact. The placing of the excavated material in the pool’s immediate area and the restoration of the dune in front of the pool and deck have minimized the impacts of the pool and deck. The construction of the restaurant on pilings with its design elevation above storm-surge and storm-wave elevations, together with locating it behind the dune crest and away from the active beach, has minimized the impact of the restaurant. The deck is on pilings as well, elevated above storm-surge and storm-wave levels. It will be physically separate from the restaurant and its design frangibility (so that it will fail in a storm) results in its impact being minimized. The stormwater basin is located as far landward as practicable. Its location and the placing of the materials excavated for the basin on the dune immediately adjacent to the basin has minimized the impact of the proposed stormwater basin on the beach-dune system. The restaurant, pool, deck, and stormwater system will not have a significant adverse impact to the beach-dune system. The restaurant will not adversely affect exiting shoreline change rates, will not significantly interfere with recovery following a storm, and will not disturb topography or vegetation such that the system will become unstable or suffer catastrophic failure. Cumulative Impacts The proposed project will not have an unacceptable cumulative impact. There are no other proposed similar projects to take into account and a cumulative impact assessment has shown there to be no adverse cumulative impact. No evidence was offered to show that an unacceptable adverse cumulative impact in terms of existing or other proposed projects will result. Positive Benefit The proposed project will have a net positive benefit on the beach-dune system. The removal of the slab-on-grade constructed building will have a beneficial impact because it will reduce the chance of storm erosion to the beach-dune system posed by such structures. The existing stormwater pipe and catch basin which cause erosion would be removed, resolving that erosion problem. Stormwater will now be retained in a new stormwater basin designed to serve 1.7 acres and it will not flow onto the beach for any rainfall event up to a one hundred year design storm. The new stormwater system is designed to recover quickly after a storm event and to treat stormwater. The removal of the stormwater pipe and catch basin, and the installation of the new stormwater basin will have a positive benefit to the beach-dune system. The new stormwater system complies with Special Permit Condition 7. Moreover the applicant will restore the dune seaward of the project to its pre-hurricane Opal condition and will plant sea oats, on one foot centers, throughout the restoration area in accordance with Special Permit Condition 1.8. Such restoration of the dune and vegetation will benefit the beach-dune system. The natural recovery process will take several decades without the placement of sand in the dune restoration project. The dune enhancement plan submitted by the applicant, in order to comply with Special Permit Condition 1.8, exceeds the requirements of that condition since it places more sand on the dunes than necessary to achieve pre-Opal conditions. Testimony of expert witness Michael Walhter, which is accepted, establishes that restored beaches and dunes function much like natural ones in storm events even though they can be somewhat inferior in resistance to storm-surge and waves since the sand is not as compacted at first. This dune enhancement plan, however, exceeds the permit requirements by placing more sand than necessary on the dunes to achieve pre-Opal conditions. The Interim CCCL On October 16, 1995, the DEP issued its emergency Order establishing an interim CCCL for Bay County one hundred feet landward of the pre-Opal CCCL. The Department established that interim line in order to regulate coastal development in the wake of Hurricane Opal. In 1978 the Legislature established criteria to be used by DEP in establishing or re-establishing all CCCL’s. They are thus to be established to define that portion of a beach-dune system subject to severe fluctuations from a one hundred year storm event. At the time of Hurricane Opal, DEP had not re-established the Bay County CCCL using a one hundred year storm event criterion. The interim CCCL for Bay County established by the above-referenced emergency Order did not utilize nor was it based on the statutory one hundred year storm event criterion. All twenty-three (23) other CCCL’s that have been established based on the statutory one hundred year storm event criterion were established by rule. As of January 15, 1997, the applicant had received all governmental approvals necessary to begin construction of the proposed project except for that which is the subject of this proceeding. On January 22, 1997, DEP by letter advised the applicant to cease and desist construction of the project. On February 7, 1997, the Department by rule then taking effect established a new CCCL.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, DETERMINED: That the Department of Environmental Protection has jurisdiction over the proposed project and that it is, therefore, recommended that a Final Order be entered granting the Respondent, Resort Hospitality’s CCCL application consistent with the terms and conditions espoused by the Final Order of December 17, 1997, Respondent’s Exhibit 2 and the project plans depicted in Respondent’s Exhibits 3 and 4. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Bram D. Canter, Esquire 103 North Meridian Street Tallahassee, Florida 32301 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire 1315 East Lafayette Street, Suite B Tallahassee, Florida 32301 Neil H. Butler, Esquire Butler and Long, P.A. Post Office Box 839 Tallahassee, Florida 32302-0839 Kathy Carter, Agency Clerk Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
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
Findings Of Fact DNR is called upon to make a decision concerning the possible issuance of CCCL permits in coastal areas described in Section 161.053, Florida Statutes. The applicant Wiggins has sought such a permit. This application is opposed by Petitioners. Mary Evelyn Wood owns property at 267 South Fletcher Avenue, Fernandina Beach, Nassau County, Florida, which is about a five minute walk from the subject property, according to Ms. Wood. The Wiggins property is at 664 South Fletcher Avenue in the same town and county. The Douglas property is at 649 South Fletcher Avenue. It is located adjacent to the Wiggins property across Fletcher Avenue on the west side and one lot north. The Crim property is at 663 South Fletcher Avenue, directly across that road west of the Wiggins property. The Douglas and Crim properties are also in Fernandina Beach, Nassau County, Florida. Petitioners have expressed their opposition to the grant of a CCCL permit based upon the belief that with construction at the Wiggins property the dune system which fronts the Wiggins property will be adversely impacted and place Petitioners' properties at risk. In this connection Petitioners are concerned about shoreline erosion and flooding of upland properties to include their own. Their attitude is prompted by the history of problems of erosion of the beach in the immediate vicinity where Wiggins and Petitioners have their property, especially related to weather events and maintenance dredging in the St. Mary's River Inlet to facilitate activities at Kings Bay Naval Base. Attempts have been made to mitigate the efforts of that dredging. Petitioners are further disturbed by problems which they have seen with beach front homes referred to as the Caples and Manley properties. The circumstances in those latter two properties are described in greater detail subsequently. Finally, Petitioners are concerned about the cumulative impact associated with the Wiggins project and similar projects which may be forthcoming along the beach front in that vicinity. On March 30, 1989, DNR received an application from Wiggins for a CCCL permit to construct a residential dwelling seaward of the Nassau County Coastal Construction Control Line. DNR determined that Wiggins' original application was incomplete and requested further information from Wiggins by letter dated May 1, 1989. Wiggins submitted all necessary supplementary documents. DNR issued a notice of completeness dated July 10, 1989, notifying Wiggins that this original application had been determined complete as of June 30, 1989. After determining that Wiggins' original application was complete, DNR engineer Robert M. Brantley, Jr. reviewed the application to analyze it for compliance with statutory and rule requirements. In connection with this review, Brantley prepared a memorandum to his supervisor regarding his recommendation for DNR action on the original application. Out of concern that the project proposed by the original application would not minimize adverse impacts on the beach and dune system after the site, Brantley recommended that the structure be moved twenty feet landward, thus requiring a local zoning variance from City of Fernandina Beach right-of-way requirements. On September 21, 1989, DNR issued a final order, "permit NA-148" granting Wiggins' original application as modified pursuant to Brantley's recommendation to require siting of the dwelling structure twenty feet landward. This constituted proposed agency action on the permit request. Petitioners were determined to have failed to allege injury to their substantial interests sufficient to grant them standing to challenge proposed permit NA-148, and their petition was dismissed. Wiggins was denied the local zoning variance from the twenty foot right-of-way setback contemplated by proposed permit NA-148. Petitioners appeared at the variance hearing and opposed the variance. After denial of the zoning variance required by proposed permit NA- 148, Wiggins contacted Brantley to ask for "reconsideration" of permit NA-148. Wiggins' request was treated by DNR as an application for modification of proposed permit NA-148. After review the application as modified was determined to be complete and a letter to that effect was issued by DNR on May 10, 1990. The modified application sited the dwelling in the same location as the original application, but with several improvements to satisfy DNR. This application as modified deleted the condition of proposed permit NA-148 allowing any excavation, as clarified at hearing; deleted the condition of proposed permit NA-148 allowing understructure parking (including the deletion of a condition allowing a concrete slab or impermeable surface), and committed the permittee to maintain the frontal dune and encumber the lot with a covenant requiring the present and future owners of the project site to maintain the dune integrity. Additionally, the seaward deck of the project structure was reduced from eight feet to six feet and the direction of stairs on the exterior of the structure was adjusted. On June 11, 1990, DNR issued a final order "Permit NA-148 M1" with the aforementioned changes incorporated. This constituted proposed agency action about which the dispute has been joined. The project site, described as lot 5, block 8, Ocean City subdivision, Fernandina Beach, Nassau County, Florida (WE 1, 3) is an oceanfront lot crossed by a well vegetated, single ridge frontal dune. The crest of the dune is located approximately 127 feet seaward of the Nassau County CCCL. It is approximately three to four feet above the existing grade with an elevation of 14 feet NGVD. The project site is located on the northern one-third of Amelia Island. As alluded to before, the northern one-third of Amelia Island has experienced erosion since the turn of the century when the St. Marys River entrance channel was stabilized by jetties. Such erosion continues and will continue as long as the St. Marys River channel jetties interrupt the natural southern transport of sand and routine maintenance dredging is conducted. Over the last twenty years, in acknowledgment of the erosion resulting from the increased frequency of maintenance dredging of the St. Marys River navigational channel, the project site has benefited from federally-funded beach renourishment projects which have deposited beach-quality spoil on two or three occasions. Material from the most recent renourishment project is still in the area of the project site. A granite revetment was built along the shoreline on the property following the destruction brought by Hurricane Dora in 1964. Further improvements to the revetment were made in the mid-1970s. The revetment protects the uplands and has acted like a sand fence to catch sand on its landward side and promote the buildup of the dune on that side. Since at least 1979, the dune ridge which parallels the property frontage has built up behind the rock revetment line. Currently, the revetment is covered by sand. The revetment would stabilize the shoreline in the event of major shore erosion. Deposition and accumulation of beach material on the seaward side of the revetment has occurred on this site as well, due to the renourishment project. Such accumulation improves the protection of the revetment system in that the accumulated sand acts as a sacrificial buffer to erosion. If that buffer is removed, the revetment then offers its protection against erosion. The revetment is located in approximately the same position as an established erosion control line. An established line of construction, including projects permitted by DNR has occurred landward of the erosion control line. As proposed, permit NA-148 M1 would site the project dwelling structure landward of the erosion control line and the permitted line of construction. The single ridge dune on the project site provides protection for upland property from flooding attributable to wave runup during astronomical high tides and storms called northeasters. The next structure north of the project site is a single family dwelling located 210 feet from the project and constructed pursuant to CCCL permit number NA-32. This is the Caples house. The next structure south of the project site is a single family dwelling located 300 feet from the project site and constructed pursuant to CCCL permit number NA-28, the Manley house. No dune crest or ridge or significant topographic feature exists under either the Caples house or the Manley house. The sand forming such crest, ridge, or feature has been removed. The seaward pilings of the Caples and Manley houses had been placed in the frontal dune. Erosion in the vicinity of the Caples and Manley houses has affected adjacent properties. Two lots north of the Caples house, no topographic feature or dune crest exists due to the presence of a parking lot servicing a private business. Approximately one lot south of the project site, midway between the project site and the Manley house, no topographic feature or dune crest exists due to the presence of a street end or public parking area. The northern part of Amelia Island is subject to occasional flooding due to the previously described astronomical high tides or northeasters. The properties owned by Petitioners Crim and Douglas have been subjected to upland flooding by ocean water which probably entered through lower elevations including through the dune breach created by the parking lot north of the Caples house, through the dune breach at the street end of parking area between the project site and the Manley house, or thorough the dune breach beneath the Caples house. Such flooding may occur with every northeaster. The Caples house and the Manley house were permitted by DNR prior to legislative authorization for the requirement of restrictive covenants in connection with CCCL permitting. The permits for the Caples and Manley houses contained no provision requiring the owner of such properties to maintain the dune on those sites. As each of the Respondents' experts testified at hearing, construction pursuant to proposed permit NA-148 M1 will not make Petitioners' property more susceptible to flooding, tidal flow and windstorm damage, because the project site will be encumbered with a covenant requiring the property owner to maintain the elevation and contours of the frontal dune. The Petitioners proffered no expert testimony on this issue to the contrary. Respondents' experts opinions are accepted. The imposition on an oceanfront parcel of a covenant which requires that dune contours be maintained, such as the one required by Condition 11 of proposed permit NA-148 M1, provides owners of property upland of such parcel with a greater level of protection than they have presently in the absence of any covenant or requirement placing such an obligation upon the owner of the project site. The seaward tow of the dune on the project site is approximately 145 feet seaward of the control line. The beach in this area is located between the seaward toe of the dune and the mean high water line. Such area is sometimes referred to as the public right-of-way on the beach. As each of the Respondents' experts testified at hearing, and as accepted, the proposed structure does not extend beyond the seaward toe of the dune and thus does not infringe on the area between the seaward toe of the dune and the mean high water line. The Petitioners proffered no expert testimony on this issue to the contrary. The impacts on a beach and dune system associated with a dwelling structure may occur from four types of events: construction, windblown sand and recharge, localized erosion from a high frequency storm event, and erosion in a design storm event. During construction of the project dwelling structure, installation of a pile foundation into the dune would result in the disturbance of the dune and vegetation on the site, including vegetation which stabilizes the dune where the pilings are placed and under the structure itself. The seaward pilings of the dwelling structure permitted by NA-148 M1 would be located approximately 128 feet seaward of the CCCL and thus will be located in the crest of the dune ridge which traverses the project site. This is a most disadvantageous placement. However, it will not be necessary to take out a section of the dune in the installation of the piles. Impacts to vegetation on the seaward side of the dune should be minimal in front of the structure and non existent in other parts of the dune located at the Wiggins parcel. Proposed permit NA-148 M1 contains conditions which require protection of the site and adjoining properties during construction, including the requirement for a preconstruction conference between a representative of the permittee and DNR. Construction fencing or sand fences are generally required by DNR pursuant to such a conference. However, a condition of proposed permit NA-148 which required a construction fence on the seaward side of the structure was made obsolete by and deleted in proposed permit NA-148 M1. The condition required a construction fence on the seaward side of the permitted structure to protect the dune. Under proposed permit NA-148, the structure would have been located landward of the dune. Proposed permit NA-148 M1 sites the structure on top of the dune negating the utility of the sand fence. The department will monitor and exercise supervisory authority over the project during construction. Upon completion of construction, proposed permit NA-148 M1 contemplates that the dune system on the project site be returned to preconstruction condition with the exception of vegetation where the piles were placed and under the structure. A structure located in a beach or dune system may affect the beach or dune system by affecting wind currents across the property. The dune system is recharged by windblown sand and the proximity of the structure to the dune may tend to have some adverse effect on that process. However, such a structure may also act as a "sand fence" and allow windblown sand to accumulate beneath it. Whatever the outcome with windblown movement of sand, the applicant must maintain the integrity of the dune in furtherance of the covenant. The presence of a structure in a beach or dune system may have localized impacts on the beach and dune system during a storm event. A pile foundation structure would increase scour and erosion about its pilings and have an impact equal to approximately twice the diameter of the pile. As example a 12" pile would cause approximately two feet of erosion. The pilings here are 10" diameter piles. In effect such "washtub" erosion reaches an equilibrium point at which it does not continue to get wider or deeper and can fill back in under varying seasonal conditions. A structure in the beach or dune system would have an impact on the beach and dune system during a design or major storm event. The design storm event is the 100 year storm event. In such a storm event, the most impactive type of structure is one with a rigid monolithic slab. An example of such a structure is a slab-on-grade dwelling structure with spread footer foundations. The Wiggins structure, a pile foundation dwelling, is designed to minimize impacts in the major storm event. The principal impacts of the structure proposed through the modified application related to the beach and dune system would be the impact on day-to- day recharge of the dune system by windblown sand and possible inhibition of dune reformation after an event which eroded the entire dune line. Condition 11 of proposed permit NA-148 addresses those impacts, namely it calls for promoting the integrity of the dune and the maintenance of the contours of the dune whatever the contingency. That is to say, Condition 11 requires Wiggins and, by restrictive covenant, future owners of the project site, to maintain the topography of the dune and to restore the dune to preconstruction conditions if it is damaged by or destroyed by wind, erosion, or during a storm event. Condition 11 also requires that salt-resistant vegetation indigenous to Florida's beaches and dunes be maintained in perpetuity and restored to preconstruction conditions if damaged by or destroyed by wind, erosion, or during a storm event, except where pilings are placed and under the dwelling. Revegetation of the dunes is a very viable option. Typically, the plants for revegetation are sea oats, and they are very hardy. If planted and given water for about the first three months thereafter, they will grow right along. Sea oats propagate through their roots. Their root systems contribute to the stability of the dune. The vegetative cover of the dune traps sand, assists in the accumulation of sand blown across the beach into dunes, and thus helps to maintain the dune topography. Again, Condition 11 does not require the owner of the project site to maintain vegetation underneath the structure on the landward face of the dune. The condition does require the dune itself to be maintained beneath the structure. Vegetation on the seaward side or face of the dune and in the side yards and areas of the dune not covered by the structure must be maintained. Vegetation on the seaward side of the dune plays the most important or critical part in the accumulation of the sand and maintenance of dune topography. The performance of Condition 11, both in maintenance of vegetation and dune contours where contemplated is feasible. Replanted vegetation should be used first to lend dune stability and integrity and should be successful. In the event that the method does not adequately provide the necessary dune aggregate or webbing to hold the dune together, artificial means such as sand fencing, geosynthetic geotextiles, webbing materials, or a slurry of biodegradable composite jell, may be used to provide such stability. Since 1985, DNR has used a dune maintenance condition in connection with other CCCL permits, and has had success with that policy. DNR has a mechanism in place to enforce Condition 11. A project site, such as permit NA-148 M1, encumbered by a covenant to maintain dune topography, such as Condition 11, will be entered in the DNR computer system as part of a master report of similar such covenanted properties. This report would have a "check date" column. That column might require that a site be reviewed every six months, for example. At the six month anniversary, the field inspector for the project area would get a notice instructing him to check the compliance of the site. He would do so and file a report with the DNR engineer responsible for the project. The engineer would file the report and set the next compliance check date. The occurrence of a major storm event in a project area would cause the Department to perform post-storm compliance survey on all projects in the affected areas. As each of the Respondents' experts established at hearing, proposed permit NA-148 M1 adequately address the concerns of DNR as contained in Brantley's analysis of the project and minimizes adverse impacts to the beach and dune system. The Petitioners proffered no expert testimony on this issue to the contrary. The primary concern relating to the cumulative effect of the project is also related to the project structure's impact on the frontal dune, namely the inhibition of dune recharge from windblown sand and its rebound after a storm event. As each of the Respondents' experts established at hearing, the conditions of proposed permit NA-148 M1 reduce or eliminate concerns regarding the cumulative effects of similar projects. With Condition 11, being universally required in the future the cumulative effect of projects similar to the project permitted by proposed permit NA-148 M1 would be tolerable. The cumulative impacts of projects similar to the Wiggins project, if subject to the same permit conditions, will not threaten the beach and dune system and may in fact provide additional protection to the upland structures because of requirements to restore and maintain existing conditions as necessary. The Petitioners proffered no expert testimony on this issue to the contrary. As the Respondents' expert witnesses established at hearing the project as modified is in compliance with all requirements of Chapter 16B-33, Florida Administrative Code, and Chapter 161, Florida Statutes. The Petitioners proffered no expert testimony on this issue at hearing to the contrary.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, recommended that proposed permit NA-148 M1 be issued by DNR to Wiggins subject to all its conditions. RECOMMENDED this 18th day of February, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4992 The following discussion is given concerning the fact proposals of the parties: Petitioners' Facts Paragraphs 1 and 2 are subordinate to facts found. Paragraph 3 is not necessary to the resolution of the dispute. Paragraph 4 is subordinate to facts found. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 through 8 and the first sentence of Paragraph 9 are subordinate to facts found. The remainder of Paragraph 9 is contrary to facts found. The first sentence of Paragraph 10 is subordinate to facts found. Concerning the second sentence, while it is recognized that the placement of the piles in the dune crest is problematic, Condition 11 to the permit provides necessary remedial response. Paragraph 11 is subordinate to facts found as is the first sentence of Paragraph 12. The remaining sentences in Paragraph 12 are addressed by Condition 11. Paragraphs 13 through 19 are subordinate to facts found. Paragraphs 20 and 21 are contrary to facts found. Paragraph 22 is not necessary to the resolution of the dispute. Concerning Paragraph 23, whatever erosion occurs Condition 11 will require the applicant to rectify the situation. As to Paragraph 24, although it has not been necessary to test the nature of the maintenance covenant act after a storm event, nothing suggests that it would not be a viable requirement following such an eventuality. Paragraph 25 is subordinate to facts found. Paragraph 26 is contrary to facts found. DNR's Facts Paragraph 1 through 8 are subordinate to facts found. Paragraph 9 and 10 are discussions in law. Paragraphs 11 through 15 are subordinate to facts found. Paragraph 16 is not necessary to the resolution of the dispute. Paragraphs 17 through 30 are subordinate to facts found. The first sentence to Paragraph 31 is contrary to the impression of the importance of the dune in question. The second sentence in Paragraph 31 is subordinate to facts found. Wiggins' Facts Paragraphs 1-54 are subordinate to facts found. COPIES FURNISHED: Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-3000 Granville C. Burgess, Esquire 301 1/2 Centre Street Post Office Box 1492 Fernandina Beach, FL 32034 Brian F. McGrail, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-3000 T. R. Hainline, Jr., Esquire Andrew Keith Daw, Esquire Rogers, Towers, Bailey, Jones & Gay 1300 Gulf Life Drive Jacksonville, FL 32207
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, pursuant to Part I of Chapter 161, Florida Statutes, and Florida Administrative Code Rule 62B-33, Respondent, Eric M. Flanagan (Flanagan), is entitled to construct a single-family dwelling seaward of the Coastal Construction Control Line (CCCL).
Findings Of Fact The Parties Eric M. Flanagan owns an undeveloped lot (Lot R-3) (the Property) at 530 Gulf Lane, North Captiva Island, Lee County, Florida. The easternmost 25 feet of Lot R-3 contains a road easement (Gulf Drive). (Gulf Drive is also referred to as Gulf Lane.) Gulf Drive is an unpaved, sandy roadway/trail which runs south to north. The westernmost boundary of the Property is the Gulf of Mexico. Lot R-3 is vacant. All of Lot R-3 is seaward of the CCCL. Steven D. Huff (Huff) owns a single-family residence at 531 Gulf Lane, North Captiva Island, Lee County, Florida, which is adjacent to and immediately across Gulf Drive to the east (landward) of Flanagan's Property and the proposed project. Dion DeLoof (DeLoof) owns a single-family residence at 541 Gulf Lane, North Captiva Island, Lee County, Florida, which is adjacent to and immediately across Gulf Drive to the southeast (landward) of the Property and the proposed project. The Department is the agency responsible for administering the program for construction activities seaward of the CCCL pursuant to Part I of Chapter 161, Florida Statutes, and Florida Administrative Code Rule 62B-33. The Application and Department Review On October 2, 2003, Lawrence E. Hildreth, P.E., on behalf of Flanagan, filed an application with the Department, for a permit for construction seaward of the CCCL or 50-foot setback.1 On October 2, 2003, the Department also received two boundary surveys for the Property, with and without the location of the proposed dwelling. (One boundary survey is signed by Ted B. Urban, a professional land surveyor, and dated August 21, 2003, and received by the Department on October 2, 2003. Several other floor plans were provided on sheets G and 1 through 6. Fifteen concrete pilings are shown on the "ground floor plan," sheets 0.1 and G.) A letter dated September 5, 2003, advised that the Lee County Zoning Staff reviewed the Flanagan project and determined that it "currently does not contravene zoning codes and is generally consistent with the Lee County Land Development Code." On October 27, 2003, the Department advised Mr. Hildreth that the application was incomplete, including the need for two copies of a topographic survey drawing of the Property, showing, in part, the location of the erosion control line, contour line corresponding to elevation 0 (NGVD), and the location of the seasonal high-water line in relationship to the CCCL. See Fla. Admin. Code R. 62B-33.0081. The Department advised that "[i]n order to get a favorable recommendation, the proposed project has to be landward of the line of construction, 30-year erosion projection and sufficient distance landward of the top of the dune." By letter dated April 21, 2004, and received by the Department on April 23, 2004, Mr. Hildreth responded to the Department's October 27, 2003, letter and provided the Department with topographic surveys showing, in part, the location of the proposed project, the high water line, approximate seasonal high water line, approximate vegetation line, flood zone line, contours at various elevations from the high water line landward to Gulf Drive, and the applicable CCCL. The submitted site plan, showing this information, was prepared by Mr. Urban and dated March 24, 2004. See also FE 3. Mr. Urban also prepared a boundary survey, which included most of the information set forth on the site plan, but also included, written by hand (although the author is not known), a notation of the location of the "30-year erosion projection," which was designated to be "121 feet" seaward of the approximate location of the old CCCL. Mr. Hildreth also submitted other drawings, designated "not for construction," sheets 01 through 11. Mr. Hildreth represented in his April 21, 2004, letter that "[t]here is no excavation or fill proposed except for the installation of the septic tank" and that "[a] landscape drawing is not provided as the existing site vegetation is being retained except for under the house and over the septic system." On or about April 29, 2004, the Department's Srinivas M. Tammisetti, P.E., requested Jennie Cowart, Field Engineer, to provide a site inspection report and current photographs of the project site. It appears that the Department considered the application complete as of April 23, 2004. The Department's file contains a three-page "Site Inspection Report" dated June 4, 2004, apparently prepared by Jennie Cowart, who did not testify in this case. There is a description of the proposed construction area and beach dune system as follows: This site is adjacent to the dune system and beach area. This vacant lot is 2 lots south of LE-1024 (which required a variance to build seaward of the old CCCL. LE-1024 has a Notice to Proceed but has not been started. There are no existing structures in the general vicinity north and south of this lot on the seaward side of Gulf Lane (a sand path). The dune system here is well established with a primary and secondary dune. There are no existing dune walkovers nearby. The location of the proposed septic [sic] is not shown on the reduced site plan. But the road easement is shown along the landward side of the proposed house; therefore, the septic [sic] would have to go on the seaward side of the structure. If this is the case, the septic [sic] would be within the coastal scrub and dune area. The proposed structure may have an adverse affect on the dune system from lighting (if not in strict compliance) and from the septic system. Construction fencing would be needed to protect the vegetated dune. A vegetation analysis is provided in the Site Inspection Report and percent-coverage, and natural conditions are also identified for specific types of vegetation. Vegetation comments are also provided: "The area within the building footprint is mostly mature seagrape, sabal palm, and woody coastal species. There are some large pepper trees near the road. The coastal scrub area is approx 75' wide with a series of dunes. There is no clear existing path to the sandy beach." There are four photographs attached to the report which are difficult to read. The Department's file also contains a "memo to file" dated June 16, 2004, from Emmett Foster, P.E., Florida State University Beaches & Shores Resource Center, with the subject being "[r]eview of 30 Year Erosion Estimate, R-69 to R-70 Vicinity, Lee County." Mr. Foster was asked by Department staff to review the erosion situation between Department reference monuments R-69 to R-70. (The Property is between approximately 180 to 255 feet south of R-69.) Mr. Foster stated in his June 16, 2004, memorandum: "A review of the erosion situation has been preformed, as requested. The recommendation remains as described in the previous 4/28/92 memorandum for this area, copy attached with an updated mhw data table and copies of profile plots." Mr. Foster is referring to a Memorandum dated April 28, 1992, from him to Mr. McNeal providing erosion information for the area between R-69 to R-70, in which Mr. Foster ultimately recommended using the most landward shoreline Mean High Water Line (MHWL) and Seasonal High Water Line (SHWL) of record, the 1982 Department of Natural Resources (DNR) survey as the 30-year erosion projection. See JE 1, April 28, 1992, Memorandum and attached data for Mr. Foster's analysis of the area. See also Endnote 4. (Mr. McNeal testified during the final hearing that he used this information to establish the 30-year erosion projection line.) On July 12, 2004, the Department received a revised site plan dated July 9, 2004, prepared by Mr. Urban, showing the location of a proposed septic tank, seaward of the proposed dwelling. See also FE 4. This is not the permitted location of the septic tank and drain field. See JE 1, Final Order. On or about June 20, 2004, Mr. Tammisetti prepared a memorandum to Mr. McNeal describing, in part, the proposed project. Mr. Tammisetti provided a general description of the beach/dune system: "Subject property has low ground elevation and appears to have viable dune and coastal strand/scrub vegetation. The segment of shoreline is unarmored and sparsely developed. It is subject to random fluctuations due to the effects of offshore shoals. Hence this shoreline experience is both erosion and accretion." He further stated: "Recommended location of 30-year erosion projection is the most landward (MHWL and SHWL) shoreline of record." See Finding of Fact 14. He indicated that the seasonal high water elevation is plus 3.8 feet (NGVD). The Department had permitted two previous projects in the area: LE-707, which was issued and expired in 2000, but was never built, and LE-1024 (the Duboy lot), which was issued a notice to proceed, but has not yet been built. Mr. Tammisetti determined that the "[p]roposed project is landward of line of construction and 30-year erosion projection. Impactive shore- parallel coverage is approximately 80%. Proposed project is sited sufficient distance landward of MHWL, SHWL, vegetation line and frontal dune." Mr. Tammisetti recommended approval of the project with special permit conditions. On or about July 28, 2004, Mr. Hildreth provided the Department with a vegetation map created by Geza Wass de Czege. The vegetation map is for the Property and is dated March 13, 2003. T 32-37. See also FE 6 which is the same map with better clarity. This map (FE 6) provided a description for 0.47 acres of the Property from the shoreline to Gulf Drive as follows: CODE DESCRIPTIONS ACRES 652 Shoreline Beach 0.10 312 Coastal Herbaceous Dune 0.10 322H Coastal Herbaceous Scrub 0.12 322C Coastal Scrub w/Cabbage Palm 0.11 8145 Graded Golf Cart Road 0.04 TOTAL 0.47 On August 2, 2004, the Department issued a "Notice to Proceed Withheld," indicating that the Department approved a permit for construction or other activities seaward of CCCL for Flanagan. The Department noted, however, that "construction may not commence until after the permittee has received a notice to proceed in accordance with Special Permit Conditions 1, 2, 3, 4 and 5, and permittee complies with any preconstruction requirements described in Special Permit Conditions 6." On August 2, 2004, the Department also issued a Final Order with Findings of Fact and Conclusions of Law. This Final Order providing conditions including requirements that the single-family dwelling be located a maximum of 200 feet seaward of the CCCL and constructed of a pile foundation; and have a 900-gallon septic tank and drain field such that "[t]he onsite disposal system's septic tank and chamber pipes located a maximum of 220 feet seaward of the control line" with "[c]onstruction limits located a maximum of 225 feet seaward of the control line." Flanagan was also required as a special permit condition to provide "[a] landscape and dune restoration plan depicting the mitigation of construction impacts to native salt tolerant vegetation." Special Condition 2 also provided: Prior to issuance of the notice to proceed, the permittee shall submit for approval a landscape plan to minimize and mitigate construction impacts to dune vegetation. Existing dune vegetation shall be disturbed only to the minimum extent necessary to complete work within the authorized construction limits and shall be protected by rigid construction fences. As determined to be feasible by the Department and prior to commencement of construction activities, native vegetation within the authorized construction limits shall be transplanted to suitable bare areas seaward of the control line. Transplanted vegetation shall be maintained, irrigated and/or fertilized to ensure a 75% survival rate for a minimum of one growing season. The permittee shall plant a mix of a minimum of three native salt-tolerant species within any disturbed areas seaward of the authorized structures. These plantings shall consist of salt- tolerant species indigenous to the native plant communities existing on or near the site or with other native species approved by the Department. Sod composed of non-native grasses is not authorized seaward of a major structure or decks. Planting in other areas of the project site shall not include invasive nuisance plant species such as listed in the Florida Exotic Pest Plant Council's May 2003 List of Invasive Species Category I and II. On September 20, 2004, Mr. Hildreth filed with the Department two sets of revised plans, as well as a copy of an affidavit of publication of the Department's intent to issue the CCCL permit. The Property Description The Property is located on North Captiva Island, an unbridged barrier island, bounded on the west by the Gulf of Mexico and on the east by Pine Island Sound. North Captiva Island is bounded by Captiva Pass to the north of the Property and Redfish Pass to the south, both of which are unstabilized, dynamic inlets. The shorelines adjacent to and between these unstabilized inlets experience higher rates of erosion and accretion than would a normal shoreline not affected by such an inlet. See generally PE 5 for a 2004, post-Hurricane Charley aerial.2 See also PE 7, updated April 2005, Department report showing, in part, area between R-69 and R-70 as "critically eroded" at 69 and 71. The Property is approximately 75 feet wide (parallel to the shoreline). The depth of the Property as of the July 9, 2004, Urban site plan, was approximately 276 feet on the north and 262 feet on the south, with each boundary extending from the eastern edge of the Property seaward to the MHWL. T 22. The Property accreted approximately 20 feet since November, 2004, and after Hurricane Charley. Stated otherwise, the MHWL moved to the west approximately 20 feet. (According to Mr. Urban, as of a week before the final hearing, the north line was 282 feet and the south line was 274 feet. T 27.) Elevations on the Property range from 1.2 feet at the MHWL to 10.0 to 10.5 feet at the project footprint and at the eastern boundary of the Gulf Drive easement, and 9.6 feet at Gulf Drive. The following relevant elevations, from the Gulf of Mexico to Gulf Drive, are portrayed on the site plan (FE 4): approximate SHWL -- 3.8 feet; approximate vegetation line -- 6.0 feet; 8.0 feet beginning approximately 10 feet east of the vegetation line and extending east, with one dip to 7.8 feet and then rising to approximately 8.5 feet, then dipping to 7.9 feet to the east and rising ultimately to 10.5 feet at the right-of- way line and the eastern edge of the project. FE 4. See also Findings of Fact 31, 34-36. The lots immediately to the north and south of the Property are vacant. (The Duboy lot, two lots north of the Property, is the subject of Department CCCL permit LE-1024, but no dwelling has been built.) Huff owns the two-story dwelling to the east of the Property and Gulf Drive. This dwelling is set back from the roadway easement on the east side of Gulf Drive. PE 3. DeLoof owns the single-family dwelling southeast (landward) of the Property and across Gulf Drive. The Project as Preliminarily Approved Flanagan proposes to construct a single-family dwelling on the Property with the exterior dimensions of the foundation measuring 60 feet in width (in the shore-parallel direction) and between 11 and 16 feet deep (in the shore-normal direction). The side yard setbacks are approximately 7.5 feet. FE 4; JE 1-Final Order at 2. Given the road easement, the project can not be located any farther eastward. The proposed dwelling will be constructed on 15 pilings (12 inches in diameter), see, e.g., JE 1 at August 21, 2003, Survey and Drawing and Certification, sheet G and August 23, 2004, Survey Drawing and Certification, sheets C100-101 and A100, and must comply with the Florida Building Code. See § 163.053(22), Fla. Stat.; Fla. Admin. Code R. 16B-33.008(1). The project includes a 900-gallon septic tank to serve the proposed dwelling. Special permit condition 2.1 permits the "onsite disposal system's septic tank and chamber pipes [to be] located a maximum of 220 feet seaward of the" CCCL. As a result the septic tank must be moved landward from the original proposal. See, e.g., FE 4. The dwelling's most seaward point will be a maximum of 200 feet seaward of the CCCL. Construction limits are located a maximum of 225 feet seaward of the CCCL. JE 1-Final Order at 2. There are no walkways associated with this project. The Location of the Dune(s) The expert testimony and exhibits were in conflict regarding the location of the dune(s) on the Property. The several site plans submitted by Flanagan do not specifically designate the location of any dunes on the Property. See, e.g., JE 1; FE 3-4. These site plans indicate the approximate location of the vegetation line, various elevations, and contour lines. Id. See also Findings of Fact 22-23. Flanagan also provided a March 13, 2003, analysis of the vegetation on the Property, see Finding of Fact 17. FE 6. The Department's Field Engineer prepared a site inspection report dated June 6, 2004, which stated that "[t]he dune system here is well established with a primary and secondary dune." Vegetation cover and comments are also indicated, including a notation that the coastal scrub area is approximately 75 feet wide with a series of dunes. However, the report does not identify the location of a frontal dune. The description of the vegetation appears consistent with the March 13, 2003, descriptions of the Property. See Findings of Fact 13, 17, 38, and 39. The same can be said regarding the Field Engineer's description of "the building footprint" which is described as "mostly mature seagrape, sabal palm, and woody coastal species." Id. See also FE 6 and Mr. De Czege's testimony T 32-37. Mr. Tammisetti, whose testimony is in the record by deposition, stated that he had never been on the Property. He located the dunes on the Property based on the topographic elevations depicted on the Flanagan site plan, received by the Department on July 12, 2004. PE 1 at 22-23; FE 4. After consulting the statutory definitions of "frontal dune" and the rule definition of "primary dune," Mr. Tammisetti located the "frontal dune" and the "primary dune" at contour/elevation 8 on FE 4, i.e., they are in the same location. He also noted a small dune at contour 9, slightly landward. He always considers impacts to the frontal dune, regardless of where it may be located in reference to the beach. In like manner, if there is no primary dune and only a fontal dune, he would consider impacts to that dune. Mr. Tammisetti also described the frontal/primary dune as "immediately landward of the vegetation line." PE 1 at 23-26, 50, 53-58. Mr. McNeal is familiar with North Captiva Island and has processed applications for this area. T 53. However, he has not been on the island "in quite a while," "[a]t least since the '90s." T 83. In making his determinations in this case, Mr. McNeal relied on the information in the Department's file, including the Urban surveys (FE 3-4), vegetation report, and other information regarding vegetation on the Property. See, e.g., T 200-201. Based on that information, Mr. McNeal provided the approximate location for three separate dune areas on the Property: 1) he located a frontal dune (spanning the entire width of the Property) between elevation 5.0 feet and the seaward one-third of the elevation contour 8.0 (a semi-circle extending approximately two-thirds laterally across the southern portion of the Property); 2) he located a secondary dune (spanning the entire width of the Property) landward of the frontal dune (he identified) and after a "little trough," at approximately the 8.5 feet elevation and encompassing a smaller semi-circle elevation at 9.0 feet; and 3) he located a primary dune landward of the secondary dune and another "little trough," at the proposed dwelling footprint and road easement, between elevations 10.0 and 9.5 feet, where the "vegetation coverage gets to be more established and more dense." T 63-66, 87; FE 3-4. On the other hand, Ms. Erickson visited the Property several times and since the hurricane season of the fall of 2004 (last time late in January 2005), and stated that there was no continuous, vegetated dune that provides protective value in the areas referenced as the frontal dune by Mssrs. Tammisetti and McNeal. Ms. Erickson stated that historically there had been a frontal dune in this area, but that it began to erode away some time after 2001, and it no longer exists. T 121-122. Ms. Erickson described the area where Mssrs. Tammisetti and McNeal located the frontal dune as having "small mounds" of elevation that are not "continuous along the shoreline," for adjoining property. She also described the vegetation in this area as "not continuous" and "very sparse," although she stated "there are some sea oats in the area." Ms. Erickson located the "primary (frontal) dune" as the rear (east) approximately 30 to 40 feet of the Property, which overlaps with the proposed footprint of the dwelling, and is in the approximate location where Mr. McNeal located the primary dune. T 115, 121-125; FE 3-4; PE 8. Stated otherwise, for Ms. Erickson, the primary/frontal dune is located between the two yellow lines on Flanagan Exhibit 4. T 124-125. This is a difficult issue to resolve. Mr. Tammisetti and Mr. McNeal are well-versed in identifying dunes and with permitting structures seaward of the CCCL. However, their opinions are given less weight in this case regarding the location of the dunes, in part, because neither personally observed the Property. The vegetation analysis performed by Mr. de Czege in March 2003, is helpful to some extent, but not definitive, although he testified that the vegetation described as "coastal herbaceous dune" is consistent with what would be found on a frontal dune. T 34-36. See Finding of Fact 17. (Mr. de Craze was last on the Property in and around May 2004. T 37.) The site plans submitted by Flanagan are likewise helpful to some extent, but are also not definitive. The Department's site inspection report, see Finding of Fact 13, is helpful to some extent. The inspection report suggested that the septic system would need to be placed on the seaward side of the proposed dwelling and necessarily "within the coastal scrub and dune area." However, although it is stated that the dune system is well established with a primary and secondary dune and coastal scrub area approximately 75 feet wide with a series of dunes, the location of a frontal dune is not discussed. Id. The weight of the evidence indicates that there is an elevated dune area with vegetative cover the width of the Property and somewhat seaward of the proposed footprint of the dwelling (between elevation 8.0 feet and 10.0 feet), which has protective characteristics, and will most likely be left undisturbed. But see PE 12, showing a 15-foot construction access and staging area without consideration of the designated septic tank area. However, the weight of the evidence also indicates that this primary and frontal dune area also includes the more landward location between the yellow lines between elevation 10.0 and 10.5 feet. The project is proposed to be constructed in the middle of this primary and frontal dune. FE 4. The weight of the evidence indicates that at least some native vegetation and in situ sandy soils will be removed during the construction of the project. If the project is constructed in accordance with the "plans" submitted to the Department on September 20, 2004, (JE 1), as interpreted by Ms. Erickson, see, e.g., Findings of Fact 60-61, construction of the project will result in the removal or destruction of native vegetation and in situ soils from the primary and frontal dune area such that it more likely than not will destabilize the primary and frontal dune identified by Ms. Erickson and potentially create a significant adverse impact on the beach and dune system or adjacent properties, notwithstanding Special Conditions 2.2 and 2. [sic] (the last full paragraph on page 2 of the Final Order which should be paragraph 3.) and the General Permit Conditions in Florida Administrative Code Rule 62B- 33.0155(1)(g)-(k). See Finding of Fact 19. JE 1.3 30-Year Erosion Projection The Property is located between approximately 180 feet and 225 feet south of Department Range Marker R-69. R-70 is south of the Property. PE 6. As noted above, the area is subject to significant fluctuations in beach width. See Findings of Fact 21-22. See also JE 1, Emmett Foster April 28, 1992, Memorandum. Depending on the stability of the shoreline in question over a significant period of time, Florida Administrative Code Rule 62B-33.024(2) allows several methods to determine the location of the 30-year erosion projection. T 56- 57. The 30-year erosion projection "is the projection of long-term shoreline recession occurring over a period of 30 years based on shoreline change information obtained from historical measurements." Fla. Admin. Code R. 62B-33.002(57) and 62B-33.024(1). The 30-year erosion projection is determined using one or more procedures set forth in Florida Administrative Code Rule 62B-33.024(2)(a)-(c). Relevant here, "[s]ome shoreline areas, such as those adjacent to or in the vicinity of inlets without jetty structures, can experience large-scale beach-width fluctuations with or without net erosion losses. Other beach areas can fluctuate greatly due to the observed longshore movement of large masses of sand, sometimes referred to as sand waves. In these areas, a 30-year erosion projection shall be estimated from the available data at the SHWL landward limit of the large beach-width fluctuations within the last 100 years, plus the application of a net erosion rate, as described in paragraph 62B-33.042(2)(a), F.A.C., if such can be determined from the available data." Fla. Admin. Code R. 62B-33.024(2)(c)(emphasis added). This is the appropriate rule paragraph to determine the 30-year erosion projection in this case. T 57, 130. The Department has consistently used the most landward shoreline (MHWL and SHWL) of record (the 1982 Department survey) as the 30-year erosion projection between R-69 and R-70 on North Captiva due to the dramatic swings between periods of erosion and accretion. The Department did not calculate a net erosion rate for the Flanagan project. During the summer of 2004 and in light of the Flanagan application, Department staff requested Mr. Foster to review the erosion situation between R-69 and R-70 for the purpose of reviewing the 30-year erosion projection. Mr. Foster's recommendation remained the same as it was stated in his April 28, 1992, memorandum, "with updated mhw data table and copies of profile plots." See Finding of Fact 14. (Mr. Foster used Rule 62B-33.024(2)(c) to calculate the 30-year erosion projection, but did not calculate an additional net erosion rate on top of his 30-year erosion projection which stopped at the 1982 SHWL, see Finding of Fact 14. T 171.) During the final hearing, Mr. McNeal, utilizing Mr. Foster's updated data, located the SHWL (blue hatch line) as of 1982 on an aerial which depicts the May 30, 1991, CCCL. The depicted SHWL is the 30-year erosion line according to Mr. McNeal. T 171, 192-193; JE 3. The proposed project is landward of this 30-year erosion projection. The location of the 30-year erosion line was chosen because, according to the Department, it is the method most compatible with large-scale beach fluctuations and unpredictable shoreline trends. T 57. The Department's analysis was predicated on the assumption, based mainly on Mr. Foster's analysis, that a net erosion rate should not be determined for the Property. On the other hand, Ms. Erickson calculated a net erosion rate of -4.3 feet per year from data between 1951 and 2004-2005, although Department data exists back to 1859.4 T 130- 135, 155-165, 168-177, 187-188; PE 10. Ms. Erickson multiplied -4.3 by 30 years and added the most landward SHWL over the last 100 years which yielded a 30-year erosion projection which is landward of the proposed project. PE 11, purple line. Mr. McNeal disagreed with Ms. Erickson's location of the 30-year erosion line in this case, preferring to rely on Mr. Foster's analysis. T 196-197. He believed that "it may be an issue of judgment on data to be used in this case, not necessarily [the] rule itself, but the data that was used." T 196. Again, Mr. McNeal testified that the Department has consistently used Mr. Foster's methodology when it reviewed other permits along this shoreline, and, in particular, with respect to the Department's consideration of the Duboy property located two lots to the north of the Property. T 197-198. Flanagan, through Mr. McNeal and Mr. Foster's analysis, presented a prima facie case regarding the location of the 30-year erosion projection, which was adequately rebutted by Petitioners. It was then incumbent on Flanagan, as the applicant, to ultimately prove the reasonableness of locating the 30-year erosion projection as indicated by Mr. McNeal, which he did not do. Mr. McNeal did not state that Ms. Erickson's analysis of data (which did not include data back to 1859, see JE 1, Foster April 28, 1992, Memorandum and attached data and Endnote 4) was flawed or otherwise inconsistent with Rule 62B- 33.024(2)(a)-(c). It is concluded that the 30-year erosion projection is as depicted on Petitioners' Exhibits 10 and 11. Therefore, the proposed project is seaward of the 30-year erosion projection. Continuous and Uniform Line of Construction Florida Administrative Code Rule 62B-33.005(9) provides that "[i]f in the immediate area a number of existing structures have established a reasonably continuous and uniform construction line and if the existing structures have not been unduly affected by erosion, except where not allowed by the requirements of Section 161.053(6), F.S., and this rule chapter, the Department shall issue a permit for the construction of a similar structure up to that line, unless such construction would be inconsistent with subsection 62B-33.005(3), (4), (7), (8), or (10), F.A.C." Mr. McNeal located the established line of construction seaward of the proposed project by considering aerial photographs, the Department's database for permit history, and the Flanagan application. See FE 2, red line for Mr. McNeal's location of the continuous line of construction. Mr. McNeal was able to identify structures north and south of the Property, which appeared to be seaward of the proposed structure. (The Gabbert house, which is south of the Property, was considered. FE 2, number 3. The Department also considered, in part, its approval of CCCL permit LE-1024 for the Duboy lot (number 2 on FE 2, T 61-63, 198-200), two lots north of the Property.) There is no structure on the Duboy lot. The weight of the evidence indicates that the Gabbert house has not been "unduly affected by erosion" and that the line of continuous construction determined by Mr. McNeal was reasonable. Removal or Disturbance of Native Vegetation and In Situ Sandy Soils Florida Administrative Code Rule 62B-33.005(4)(a)-(c) provides: The Department shall issue a permit for construction which an applicant has shown to be clearly justified by demonstrating that all standards, guidelines, and other requirements set forth in the applicable provisions of Part I, Chapter 161, F.S., and this rule chapter are met, including the following: The construction will not result in removal or destruction of native vegetation which will either destabilize a frontal, primary, or significant dune or cause a significant adverse impact to the beach and dune system due to increased erosion by wind or water; The construction will not result in removal or disturbance of in situ sandy soils of the beach and dune system to such a degree that a significant adverse impact to the beach and dune system would result from either reducing the existing ability of the system to resist erosion during a storm or lowering existing levels of storm protection to upland properties and structures; The construction will not result in the net excavation of the in situ sandy soils seaward of the control line or 50-foot setback; The construction will not cause an increase in structure-induced scour of such magnitude during a storm that the structure- induced scour would result in a significant adverse impact; The construction will minimize the potential for wind and waterborne missiles during a storm; The activity will not interfere with public access, as defined in Section 161.021, F.S.; and The construction will not cause a significant adverse impact to marine turtles, immediately adjacent properties, or the coastal system. See Fla. Admin. Code R. 62B-33.002(31)(a)-(d) for definitions of "impacts," "significant adverse impacts," "minor impacts," and "other impacts." Mr. Hildreth stated that the only proposed excavation5 "per se would be the installation of the septic tank and drain field, and any type of tie beams you might have between the pilings for bracing." See also PE 1 at 30. He stated that primarily seagrapes and cabbage palms are located on the dwelling footprint and that these would be placed "over to the side." He also opined that approximately one truck load of dirt would be excavated and spread around the site, including on top of the septic tank and drain field, which will be located "immediately west of the house" and no more than 220 feet seaward of the CCCL. This would result in a change in elevation around the drain field of approximately six inches to a foot. Fifteen, 12-inch pilings are proposed. T 43-45; JE 1, Final Order at 2. Conversely, Ms. Erickson testified that construction of the dwelling foundation alone would require the excavation of approximately 430 to 600 cubic yards of material from the frontal and primary dune (located by Ms. Erickson, (PE 8 and 12)). T 137-149; see also JE 1, August 23, 2004, site plan and other sheets filed with the Department and Finding of Fact 25. (The Department does not review construction plans for a proposed dwelling. According to Mr. Tammisetti, the Department examines the "siting of the structures." PE 1 at 29, 38, 42. See also T 202.) Ms. Erickson also stated that significant excavation of dunes causes instability of the dune system by loosening sediments, destroying vegetation, and creating flow pathways that exacerbate wind and wave erosion. Ms. Erickson expects significant adverse impacts to the frontal dune as a result of proposed excavation on the Property. Id. Mr. McNeal acknowledged that excavation and vegetation removal causes instability of the dune system, but opined that the applicant had minimized the removal or disturbance of in situ sandy soils; that the disturbance of in situ sandy soils will not result in net excavation; that the project will not result in the destruction or removal of native vegetation to such a degree that the frontal dune will lose any protective value, destabilize the frontal dune or increase erosion by either wind or water; that the proposed construction will not result in the removal or disturbance of in situ sandy soils of the beach and dune system to such a degree as to have a significant adverse impact to the beach and dune system; and that the Department's Final Order does not allow removed or disturbed in situ sandy soils to be placed landward of the CCCL. T 66-82, 202. Mr. McNeal's opinions are predicated, in part, on his belief that the frontal dune is located seaward of the proposed dwelling and that excavation on-site will be minimal and temporary. Id. See also PE 1 at 30-31, 36-37, 44, 53. The weight of the evidence indicates that notwithstanding the permit conditions, the excavation of in situ sandy soils and native vegetation from the frontal/primary dune is more likely than not to result in significant adverse impacts to the beach and dune system.6 Local Approval There is no evidence that Lee County has rescinded the prior approval letter or that the project has undergone any major modifications that would require the Department to request further approval from Lee County.
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 CCCL permit. DONE AND ENTERED this 1st day of September, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 1st day of September, 2005.
The Issue Whether Permit Number 9330008850 (a building permit for the construction of a single-family residence and swimming pool) issued by Monroe County, Florida, to Fred Snowman is inconsistent with Monroe County's setback requirement pertaining to beach berms that are known turtle nesting areas.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Sections 380.031(18), 380.032, and 380.07, Florida Statutes. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County, Florida. Monroe County issued the development order that is the subject of this appeal. Respondent Fred Snowman is a general contractor and is the owner of real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida. The subject property is a residential lot that measures 100 feet by approximately 225 feet and was acquired by Mr. Snowman in September 1992. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean. Respondent's lot is within the Florida Keys Area of Critical State Concern. On September 30, 1993, Monroe County issued building permit, Permit Number 9330008850, to Fred Snowman as Owner and General Contractor. This building permit is a development order in an area of critical state concern and is the subject of this proceeding. As reflected by the approved site plans, the permit authorizes the construction of a 2,472 square foot single-family residence with 1,568 square feet of porches, a 1,435 square foot storage enclosure below base flood elevation, and a swimming pool on the property. As permitted, all construction will be setback at least 75 feet from the mean high water line. There is no dispute between the parties as to where the mean high water line is located. Sections 9.5-335 through 9.5-345, Monroe County Code, are land development regulations that contain certain environmental performance standards relating to development. The purpose of these standards is "to provide for the conservation and protection of the environmental resources of the Florida Keys by ensuring that the functional integrity of natural areas is protected when land is developed." See, Section 9.5-335, Monroe County Code. Included in the environmental standards of the land development regulations is Section 9.5-345, Monroe County Code, entitled "Environmental design criteria," which provides, in relevant part: Disturbed Lands: All structures developed, used or occupied on land which are [sic] classified as disturbed on the existing conditions map shall be designated, located and constructed such that: * * * (3) On lands classified as disturbed with beach berm: * * * f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; There is little dispute that Lower Matecumbe beach is an active nesting area for marine turtles. Loggerhead turtles, the primary marine turtles which nest on Atlantic beaches in the Keys, are a threatened species under the federal Endangered Species Act. There are thirty beaches in the Florida Keys which consist of loggerhead nesting habitat. The beach that fronts Mr. Snowman's property on Lower Matecumbe Key is a known turtle nesting beach that is ranked as the second most heavily nested beach in the Keys. The Monroe County comprehensive plan recognizes the beaches on Lower Matecumbe Key as known loggerhead turtle nesting beaches. Pursuant to the comprehensive plan, the County has prepared endangered species maps as a tool to be utilized in identifying known turtle nesting areas. At the time Mr. Snowman obtained approval of his permit application from Monroe County, the County's endangered species maps omitted an approximately 1.5 mile stretch of Lower Matecumbe Beach, including Mr. Snowman's property, from its map designation of a known nesting habitat. However, since that approval, the map, which is subject to periodic updates, has been updated by the County to reflect that all of Lower Matecumbe Key, including Mr. Snowman's property, is considered by the County to be known turtle nesting habitat. Mr. Snowman did not rely on the designation on the endangered species map in making his decision to purchase the subject property or in designing the improvements he seeks to construct on the property. Surveys of turtle nesting behavior in the Florida Keys are accomplished through a network of volunteers. The nesting survey information obtained from this volunteer network provides very general locations with varying degrees of accuracy depending on the number and ability of the volunteers and the extent to which they can obtain access to privately owned beach front property. Because of the limitations in the survey data, is it generally not possible to determine whether turtles have nested on a particular lot. There was no evidence that turtles actually nest on Mr. Snowman's property. Marine turtles most commonly nest within the first 50 feet landward of the mean high tide line, although they have been known to go farther upland. Because of the compressed beach and berm habitat in the Keys, loggerhead turtles have been known to nest in grassy vegetation and woody vegetation more than 50 feet landward of the mean high water line. Mr. Snowman's property is properly designated as "Disturbed Lands" and there exists on this property a "beach-berm complex" which is known to serve as an active nesting area of marine turtles within the meaning of Section 9.5- 345, Monroe County Code. The setback requirement found in Section 9.5-345, Monroe County Code, applies to this development. Consequently, no construction of any structure may be located within fifty (50) feet of any portion the beach- berm complex which is known to serve as an active nesting area of marine turtles. There was a conflict in the evidence as to how much of Mr. Snowman's property should be considered to be a beach-berm habitat. The County has identified the landward extent of the beach-berm to be twenty-five feet from the mean high water line, so that the setback would be to a point at least 75 feet from the mean high water line. The Department has identified the landward extent of the beach berm to be 80 feet from the mean high water line so that the setback would be to a point at least 130 feet from the mean high water line. Section 9.5-4(B-3) contains the following definition that is pertinent to this proceeding: (B-3) "Beach berm" means a bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. There are two distinct ridges located on the Snowman property. Beginning at the mean high water line, there is an area of sandy beach followed by a ridge (the first ridge) that levels off approximately 25 feet from the mean high water line. Behind this first ridge is another ridge that levels off approximately 80 feet landward of the mean high water line. This second ridge contains the highest elevation point on Mr. Snowman's property, with the crest of the second ridge corresponding with the 5.9 foot elevation reflected on Respondent's site plan. There is no vegetation on the beach, which is an area of sandy substrate, until the landward downslope of the first ridge, where vegetation in the form of grasses and sea oats appear. Grasses and sea oats extend approximately 30-40 feet landward into the beginning of the second ridge. Behind the grasses and sea oats is woody vegetation, Bay Cedar, and shrubbery typical of beach front property. Also found on the property and landward of the first ridge are sea grape, wild sage, gray nicker pod, and prickly pear cactus. Monroe County considers this first ridge to be the extent of the beach berm complex on the Snowman property. The County identifies the back of the berm on the subject property as measuring 25 feet landward of mean high water and applied the 50 foot setback requirement from that point. The determination of the extent of the beach berm by the County is consistent with the definition of the term "beach berm" contained in Section 9.5-345(3)f, Monroe County Code, and is supported by the greater weight of the evidence presented at the formal hearing. Consequently, it is found that the beach berm complex on the Snowman property extends 25 feet landward of the mean high water mark so that the setback requirement was properly applied when the development order was issued. The Department asserts that the second ridge should be considered to be part of the beach berm. The Department's determination of the extent of the beach berm is bottomed on a more expansive definition of the term "beach berm" derived from its interpretation of various portions of the Monroe County Comprehensive Code. Inexplicably, the Department's interpretation of what should be considered to be included as part of the "beach berm" ignores the definition contained in Section 9.5-345(3)f, Monroe County Code. The Department interprets the term "beach berm" to include not only the initial increase and decrease in elevation near the shoreline, but also those areas of calcareous substrate that form the second ridge and include the highest elevation on the subject property. The Department considers the beach berm to terminate 80 feet from the mean high water line where the elevation of the second ridge decreases and levels off to a more consistent grade. The Department characterizes the first ridge as a primary dune the second ridge as a secondary dune. In support of its position, the Department cites the discussion of beach berms in the Florida Keys contained in Volume I of the Monroe County Comprehensive Plan. That discussion describes a berm in the Keys as the "higher, mostly vegetated dense-like sand ridges." According to the Comprehensive Plan, the biota characteristics of beach systems in the Keys occur in up to four distinct generalized zones or associations, assemblages of plants and animals that have adapted to the environmental conditions of that zone. The zones on Keys beaches are described by Volume I of the Comprehensive Plan as follows: The strand-beach association is dominated by plants that are salt tolerant, root quickly, germinate from seed rapidly, and can withstand wave wash and shifting sand. Commonly found species include Sea Purslane, . . . Beach Grass, . . . Sea Oats, . . . [and] Bay Cedar. On most Keys beaches this association occurs only atthe base of the berm since the beach zone is very narrow. These plants also occupy themost seaward portion of the berm and continuesome distance landward. * * * The next zone, "strand-dune" association,begins with a steep and distinct increase inslope upward from the beach. . . . The bermmay be elevated only several inches or as much as several feet above the level of the beach and may extend landward hundreds of feet as a flat-topped plateau or beach ridge. The foreslope of the berm, or beach ridge, is vegetated primarily by the above-listed species of the beach association. Grasses and herbaceous plants, which serve to stabilize this area, are most common. Proceeding landward, these pioneer species are joined by other species. * * * The strand-scrub association is generallyconsidered a transition zone between strand-dune and hammock forest. Shrubs and occasional trees occur more frequently here and become more abundant as one proceeds landward. Species often found include Seagrape, . . . Wild Sage (Lantana involucrata), [and] Gray Nicker. . . . The most landward zone on the berm is occupied by tropical hardwood hammocks. The term "berm" is identified in the Monroe County comprehensive plan as . . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm. * * * The height and width of berms in the Keys is highly variable. They may range in height from slightly above mean high water to more than seven (7) feet above mean sea level. The width of berms in the Keys varies from tens of feet to more than 200 feet. Despite the support the Department found in the Comprehensive Plan for a more stringent setback requirement, the Department is not at liberty to ignore the definition of the term beach berm contained in the land development regulations. While both ridges that exist on the Snowman property may be considered berms or dunes, only the first should be considered a beach berm. The first ridge is ". . . a bare, sandy shoreline with a mound or ridge of unconsolidated sand" within the meaning of Section 9.5-4(B-3), Monroe County Code. The second ridge is above the vegetation line and is not ". . . a bare, sandy shoreline" within the meaning of the definition of beach berm contained in the Monroe County land development regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order that adopts the findings of fact and the conclusions of law contained herein and denies the appeal filed by the Department of Community Affairs as to building permit number 9330008850 issued by Monroe County, Florida. DONE AND ENTERED this 25th day of October, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 25th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7165DRI The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 13, 14, 15, 16, 17, 18, 21, 25, 26, 27, 29, 32, and 33 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 9 and 23 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 10, 11, 12, 24, 28, and 31 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 19 are rejected as being unsubstantiated by the evidence and as a misconstruction of the cited testimony. The proposed findings of fact in paragraphs 20, 22, and 34 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 30 are rejected as being unnecessary to the conclusions reached since the setback is from any portion of the "beach berm complex" and not from any area that may be considered to be turtle nesting habitat. The following rulings are made on the proposed findings of fact submitted by the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, and 5 are summaries of testimony that are subordinate to the findings made. The proposed findings of fact in paragraph 6 are rejected as being unsubstantiated by the evidence and contrary to the findings made. The proposed findings of fact in paragraph 7 and 8 are adopted in material part by the Recommended Order. COPIES FURNISHED: Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Nicholas W. Mulick, Esquire 88539 Overseas Highway Tavernier, Florida 33070 Randy Ludacer, Esquire Monroe County Attorney Fleming Street Key West, Florida 33040 Mr. Fred Snowman Post Office Box 771 Islamorada, Florida 33035 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission Carlton Building Tallahassee, Florida 32301
