11-002600 Glenn Mark Mcalpin And Linda Mcalpin vs. Mark S. Devries, Rita L. Devries, And Department Of Environmental Protection
 Status: Closed
Recommended Order on Wednesday, November 2, 2011.


View Dockets  
Summary: Application for CCCL for second-tier beach house met criteria, with additional condition to avoid indirect impacts to significant dune feature.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8GLENN MARK MCALPIN AND LINDA )

14MCALPIN, )

16)

17Petitioners, )

19)

20vs. ) Case No. 11 - 2600

27)

28MARK S. DEVRIES, RITA L. )

34DEVRIES, AND DEPARTMENT OF )

39ENVIRONMENTAL PROTECTION, )

42)

43Respondents. )

45)

46RECOMMENDED ORDER

48On August 1 and 10 , 2011 , a final administrative hearing in

59this case was held in Tallahassee , before J. Lawrence Johnston,

69Administrative Law Judge, Division of Administrative Hearings

76(DOAH) .

78APPEARANCES

79For Petitioner s : Ross Stafford Burnaman, Esquire

871018 Holland Drive

90Tallahassee, Florida 32301 - 4508

95For Respondent Department of Environmental Protection:

101Kelly L. Russell, Esquire

105Department of Environmental Protection

109The Douglas Building, Mail Station 35

1153900 Commonwealth Boulevard

118Tallahassee, Florida 32399 - 3 000

124For Respondent Mark S. DeVries and Rita L. DeVires:

133E . Dylan Rivers, Esquire

138Ausley and McMullen, P.A.

142123 South Calhoun Street

146Tallahassee, Florida 32301 - 1517

151STATEMENT OF THE ISSUE

155The issue in this case is whether the Department of

165Environmental Protection (DEP) should grant the application

172filed by the DeVries for a coastal construction line (CCCL)

182permi t to build a house (with dolomite drive, septic tank, and

194drain field ) and a dune walkover seaward of the CCCL on their

207property on the St. Joe Peni nsula in Gulf County (Permit GU -

220501 ).

222PRELIMINARY STATEMENT

224DEP gave notice of its intent to grant the DeV ries '

236application and issue Permit GU - 501 , and Petitioners requested

246an administrative hearing. Petitioners ' Amended Petition for

254Administrative Hearing was referred to DOAH , and the final

263hearing was scheduled for August 1, 2011 .

271The parties filed a Pre - Hearing Stipulation on July 27,

2822011. The final hearing could not be completed in one day . It

295was completed on August 10.

300At the final hearing, Joint Exhibits 1 and 2 (A and B) were

313received. T he applicant called: Rita DeVries; Delores Windolf,

322a n expert in coastal construction; Thomas Driggers, P.E., an

332expert in structural engineering; and Michael Walther, P.E., an

341expert in coastal engineering . The applicant had Respondent ' s

352Exhibits 1 - 3 (A and B), 7, 8, 9, 14, and 16 admitted in

367evidence. DE P called Tony McNeal, P.E., the Administrator of

377DEP ' s CCCL Program, and an expert in coastal engineering, and

389had DEP Exhibits 1 and 3 - 7 admitted in evidence. Petitioners

401called Michael Dombrowski, P.E., an expert in coastal

409engineering, and had Petition ers ' Exhibit s 10 - 12, 18, 26 - 28, and

42531 admitted in evidence. (Petitioners also had Exhibit 10 from

435the deposition of Glenn Mark McAlpin , M.D., admitted in evidence

445as Respondent ' s Exhibit 11, which also was later cross -

457designated by the DeVries and receiv ed as part of Petitioners '

469Exhibit 26, which includes designated portions of the deposition

478of Dr. McAlpin) .

482A Transcript of the testimony and proposed recommended

490orders were filed and have been considered.

497FINDINGS OF FACT

500The Neighbors

5021. Mark and Rita DeVries own 0.163 acre in Block 6 of

514Peninsular Estates, which is on the St. Joe Peninsula in Gulf

525County. The St. Joe Peninsula is oriented approximately north

534and south, with the water of the Gulf to the west. DEP Monument

547R - 83 is on the DeVries ' property.

5562. Linda McAlpin also own s property in Block 6 of

567Peninsular Estates seaward of the DeVries ' property . She and

578her husband, Dr. Glenn Mark McAlpin, bought the property in

5882001. The dunes on the property had been cleared prior to 1973

600for construction of a beach house and driveway. The prior

610owner ' s beach house was then damaged by major storms. In 2001

623and 2002, the McAlpins got a CCCL permit to build a pile -

636supported 5,000 square foot, three - story house over a concrete

648slab used as a parking area , with a dolomite drive way, on her

661property . There is no private property to the west (i.e.,

672seaward) of her property.

6763. In 2006, Dr. McAlpin quitclaimed his legal interest to

686his wife to insulate it from his potential professional

695liabilities . Except for the legal consequences of the quitclaim

705deed, the McAlpins continue to treat the property as a marital

716asset. Dr. McAlpin continues to handle practically all matters

725relating to the maintenance of the house, including repairs

734necessitated by major storms and beach erosion.

741The Beach and Dune System

7464. Besides the McAlpins, t here are beach houses to the

757east (landward) and to the north of the DeVries ' property . The

770house to the north was moved landward from its original location

781after it suffered major storm damage in 2005. It used to be

793north of the McAlpin house. There is a house to the south of

806the McAlpin house. Except for the house that was moved, there

817is a continuous line of construction seaward of the CCCL to the

829north and so uth along the line between the McAlpin house and the

842house to the south.

8465. The McAlpin house also s uffered damage from the storms

857of 2004 and 2005. Sand sediment under the seaward side of the

869house was scoured out and undermined , and part of the frangible

880concrete slab and some of the plumbing under that part of the

892house dropped to the new, lower sand surface. The McAlpins had

903sand brought in to place under the house and began to build a

916seawall around the pilings and new sand until the seawall

926project w as halted for failure to obtain a permit.

9366. In 2008 and 2009 , a beach restoration project was

946installed on the peninsula, which added sand to the beach and

957formed a dune immediately seaward of the McAlpin house.

9667. There is a dispute whether the DeVries propose to build

977on a frontal dune. The McAlpins contend that the seaward toe of

989the frontal dune is seaward of their house , that its crest is on

1002the DeVries ' property just east of their common boundary, and

1013that the frontal dune extends landward approxi mately to the

1023DeVries ' common boundary with the property to the east.

1033Michael Dombrowski, P.E., gave expert coastal engineering

1040testimony in support of McAlpins ' contention.

10478. The DeVries and DEP contend that the beach restoration

1057project re - created the frontal dune that was seaward of the

1069McAlpins ' house before the major storms of 2004 and 2005 and

1081that the McAlpin s ' house sits on a separate primary dune

1093landward of the primary dune. Michael Walther, P.E., and

1102Tony McNeal, P.E., gave expert coastal engi neering testimony in

1112support of the contention of the DeVries and DEP.

11219. The beach restoration project created a dune, i.e., a

1131mound or bluf f of sand , that is landward of the beach , parallel

1144to the shoreline , and continuous in the vicinity. The dune has

1155been planted with native vegetation that is thriving and

1164spreading. Sinc e its installation, the dune has been stable,

1174and sand has been accreting on the dune. The dune is of

1186sufficient vegetation, height, continuity, and c onfigur ation to

1195offer protective value up to a major, 40 - to 60 - year return

1209storm. As such, it is a frontal dune. See § 161.053(5)(a ),

1221Fla. Stat.

122310. There is a trough between the dune created by the

1234restoration project and dune on which t he McAlpin s ' house sits.

1247( The trough is the landward toe of the frontal dune and the

1260seaward toe of the dune under the McAlpin house ) . The latter

1273dune system crests at approximately 18 feet North American

1282Vertical Datum of 1988 (NAVD) on the DeVries ' property a litt le

1295landward of the common boundary between the two properties. It

1305is a significant dune in that it has sufficient height and

1316configuration and vegetation (especially on the DeVries '

1324property, which is heavily vegetated) to provide protective

1332value. See Fla. Admin. Code R. 62B - 33.002(17)(a). The

1342alterations made to the McAlpin property by the prior owner

1352adversely affected the alongshore continuity of the dune system,

1361but it still is a primary dune in that it affords a measurable

1374level of protection to upland property and structures from the

1384predictable erosion and storm surge levels associated with

1392coastal storm events. See Fla. Admin. Code R. 62B -

140233.002(17)(b).

1403The Proposed Beach House

140711. The DeVries ' application is to build a pile - supported

14193,000 squ are foot, two - story house over a concrete slab used as

1434a parking area, with dolomite drive and a dune walkover. The

1445house would be up to approximately 110 feet seaward of the CCCL,

1457landward of the adjacent McAlpin house, and landward of the 30 -

1469year erosio n line (DEP ' s projection of the seasonal high - water

1483line 30 years in the future) . It is undisputed that the

1495proposed construction will conform to the requirements of the

1504Florida Building Code.

150712. The DeVries ' pr oposed house would be on 18 one - foot

1521square piles , with two eight - inch square piles supporting the

1532wooden deck. This construction method, which is standard,

1540minimizes impacts from erosion and scour.

154613. The DeVries propose a septic tank and drain field

1556between the house and the common boundary with their neighbor to

1567the east (i.e., the landward side of the property). This

1577optimal location for the septic tank and drain field is made

1588possible by the orientation and dimensions of the proposed house

1598(a rel atively narrow rectangle with the longer sides in the

1609north - south direction).

161314. Petitioners contend that impacts should be minimized

1621by requiring construction of a narrower, taller structure. The

1630footprint already is smaller than the footprint of the Mc Alpins '

1642house. Requiring a further reduction would create problems in

1651the design of the interior space of the house. It was proven

1663that the dimensions of the house proposed by the DeVries is

1674reasonable and sufficiently minimizes impacts.

167915. There will be no net excavation of in situ sand for

1691the construction authorized in proposed Permit GU - 501. Sand

1701excavated for the septic tank and drain field, along with

1711additional sand brought to the construction site, will be used

1721to fill a bowl - like feature in the middle of the DeVries '

1735proper ty and level the ground for the concrete slab under the

1747DeVries ' proposed house. There will be a net addition of sand

1759to the site.

176216. The concrete slab beneath the DeVries ' proposed house

1772is designed to be partially cut so as to break into smaller

1784pieces in a catastrophic storm event and not cause collapse,

1794displacement, or other structural damage to the elevated portion

1803of the building or supporting foundation system. Cf. Fla.

1812Admin. Code R. 62B - 33.002(9).

181817. The concrete slab proposed beneath the house was

1827reduced in size to eliminate a roughly seven - foot by 16 - foot

1841rectangle in the northwest corner and not to disturb a higher

1852dune feature that exists in that location.

185918. Petitioners contend that the DeVries ' concrete slab

1868could be further reduced in siz e to minimize impacts to the

1880primary dune. However, it was proven that the size of the

1891concrete slab is reasonable and sufficiently minimizes impacts.

189919. The driveway authorized by proposed Permit GU - 501 will

1910narrow from approximately 30 feet wide at the house to

1920approximately 12 feet at the County right - of - way , which reduces

1933impacts (and is narrower than the McAlpins ' driveway) .

1943Petitioners contend that the driveway should be narrower to

1952minimize impacts. It was proven that the width of the proposed

1963dri veway is reasonable and sufficiently minimizes impacts.

197120. Frangible curbing is proposed along both sides of the

1981driveway. This will prevent or discourage driving elsewhere on

1990the lot.

1992The Proposed Dune Walkover

199621. T he DeVries ' proposed dune walkover woul d be connected

2008by stairs to a wooden deck off the northern end of the first

2021story of the house. From the stairs, the dune walkover proceeds

2032for a short distance in a northerly direction, then proceeds in

2043a westerly direction towards the beach within a 10 - foot wide

2055access easement. It would be four feet wide and at least two

2067feet above the ground surface and would pass within ten to 20

2079feet of the north side of the McAlpins ' house. It would be

2092supported by four - inch by four - inch wooden piles.

210322. Petitioners contend that the DeVries ' proposed dune

2112walkover should be denied because there is a public beach access

2123off White Sands Drive approximately 500 feet to the south . The

2135purpose of the dune walkover would be to avoid the impacts that

2147would occu r if people staying at the DeVries ' beach house use

2160the beach access easement instead of the public access. The

2170existence of the public access is not a ground to deny private

2182beach access via a dune walkover that meets CCCL permitting

2192criteria.

219323. Petitio ners also contend that the proposed dune

2202walkover sh ould be denied because a ground - level foot path was

2215not considered. Since the purpose of the dune walkover is to

2226avoid the impacts of an on - grade footpath, that option was

2238considered and rejected.

224124. Petitioners contend that the proposed dune walkover

2249should be reduced to three feet . But it was proven that the

2262proposed four - foot width is standard and reasonable; that the

2273construction method alre ady minimizes impacts; and that the

2282impacts from a three - foot wide walkover would not be much less

2295than the proposed walkover.

229925. Petitioners also contend that the DeVries ' dune

2308walkover should use rounded piles, not square ones as proposed.

2318They base this contention on DEP ' s Beach and Dune Walkover

2330Guidelines ( Dune Walkover Guidelines) , which state that rounded

2339piles are preferred. Rounded piles are not mandatory, and it

2349was proven that the proposed piles are reasonable and

2358su fficient .

236126. Petitioners contend that the proposed dune walkover

2369actually is wider than four feet overall because the application

2379drawings make it appear that the wooden piles are outside the

2390walkway. However, it was proven that the drawings are in error

2401to that extent and that the maximum width of the dune walkover

2413actually will be fou r feet, as required by special condition 8

2425of proposed Permit GU - 501 .

243227. Petitioners contend that the proposed dune walkover

2440must be denied because the site plan depicts it as terminating

2451on the frontal dune created by the 2008 beach restoration

2461project , which is contrary to the Dune Walkover Guidelines .

2471Petitioners also contend that, while the Dune Walkover

2479Guidelines require adequate elevation to clear the vegetation on

2488the dunes, every part of the proposed walkover may not clear the

2500dune entirely, acco rding to the elevations in the site plan and

2512construction drawings in the DeVries ' application. Special

2520condition 8 of proposed Permit GU - 501 address es Petitioners '

2532con tentions . It requires the proposed dune walkover to extend

2543up to (but more than ten fe et seaward of) the existing line of

2557vegetation (not the lin e of vegetation at the time of the survey

2570included as part of the DeVries ' application) and requires that

" 2581the deck of the walkover structure shall maintain an elevation

2591above the existing dune veg etation canopy . . . . " Also, under

2604special condition 8, " [t]he optimum siting of the walkover

2613structure shall be determined by the [DEP] staff representative

2622during the preconstruction conference to provide maximum

2629protection to the existing dune topogra phy and vegetation

2638located on the site. " This will ensure compliance with the Dune

2649Walkover Guidelines , which defines optimal siting .

265628. Petitioners contend that the proposed dune walkover

2664must be denied because the DeVries ' beach access easement does

2675not extend to the existing vegetation line. Proposed GU - 501

2686does not authorize a trespassing. See Fla. Admin. Code R.

269662 B - 33.0 155(4). If a dditional access easement is required to

2709reach the beach , it will have to be acquired . Otherwise, the

2721proposed dune walkover cannot be built.

272729. To mitigate for the minimized impacts from the

2736DeVries ' proposed construction, special condition 5 of proposed

2745Permit GU - 501 requires the DeVries to " plant a mix of a minimum

2759of three nat ive salt - tolerant species within any disturbed areas

2771seaward of the control line, including the septic tank and drain

2782field area. " Obviously, there will not be mitigation planting

2791where the concrete slab and dolomite driveway will be. The

2801plants must be indigenous species or approved by DEP, and " a

2812minimum of 80 percent of the planted areas shall be covered with

2824the selected species. " Sod and planting invasive nuisance

2832species are not authorized. In addition, the site plan, which

2842is part of the applicat ion, has a proposal to " maintain [planted

2854native vegetation] adequate by temporary irrigation. "

286030. Petitioners contend that the GU - 501 conditions are not

2871sufficient because the indigenous plants are not specified.

2879However, the evidence provided reasonable assurance that

2886appropriate species would be planted.

289131. Petitioners also contend that the GU - 501 conditions

2901are not sufficient because the success c riteria are inadequate .

2912Specifically, Petitioners compare the 80 percent coverage

2919requirement in special condition 5 with the 90 percent success

2929rate after 180 days and after 360 days required by the

2940conditions of the beach restoration project . T he beach

2950restoration project ' s conditions could be viewed as less strict

2961than the GU - 501 conditions . In any event, the GU - 501 conditions

2976provide reasonable a ssurance of mitigation of the impacts .

298632. Petitioners contend that temporary impacts are not

2994mitigated. However, temporary impacts will be minimized by

3002special conditions 1 (pre - construction conference) and 3

3011(requirement of optimal construction fencing, including to

3018protect the dune feature at southwest corner of the DeVries '

3029property), 4 (only minimum disturbance required for construction

3037allowed), and 9 (requirement to remove all rubble and

3046construction debris to a location landward of the CCCL). This

3056small level of risk from temporary distur bances during

3065construction and before mitigation plantings take hold is

3073unavoidable. It does not warrant the denial of a CCCL permit.

308433. In accordance with DEP ' s requirements, the proposed

3094dune walkover is designed as a minor, expendable structure, and

3104pa rtitions of the house are designed to break away or be

" 3116frangible " Ï i.e., to " collapse from a water load less than that

3128which would occur during a 100 - year storm event without causing

3140collapse, displacement, or other structural damage to the

3148elevated portion of the building or supporting foundation

3156system. " See Fla. Admin. Code R. 62B - 33.002(9). These designs

3167help prevent larger, unmitigated storm damage to the beach and

3177dune system .

318034. Due to its proximity, the McAlpins ' house could

3190sustain additi onal damage from the frangible parts of the

3200DeVries ' construction during such a storm . However, those risks

3211are contemplated by DEP ' s frangibility requirements and are

3221relatively small. Those risks do not warrant the denial of a

3232CCCL permit.

3234The County Right - of - Way

324135. There is a paved road called White Sands Drive that

3252approaches the McAlpins ' dolomite driveway and the proposed

3261location of the DeVries ' dolomite driveway from the east. The

3272McAlpins ' driveway extends from their house in a southeasterly

3282dir ection, crosses the County right - of - way for Blue Water Circle

3296(which has not been built), and connects with the paved surface

3307of White Sands Drive in the curve between its east - west segment

3320and its north - south segment. The DeVries ' proposed dolomite

3331drive way would terminate at the County right - of - way for Blue

3345Water Circle to the northeast of the McAlpins ' d riveway, where

3357th e elevation is approximately 13 to 14 feet NAVD (similar to

3369the elevation of the McAlpins ' driveway).

337636. There is a relatively narrow dune feature between the

3386McAlpins ' driveway and the DeVries ' proposed driveway that rises

3397to an elevation of approximately 19 feet NAVD in the center of

3409the dune feature. This dune is significant in that it has

3420sufficient height and vegetation to provide protective value.

3428See Fla. Admin. Code R. 62B - 33.002(17)(a). In itself, it is not

3441a primary dune because it does not have the configuration and

3452alongshore continuity to afford a measurable level of protection

3461to upland property and structures from the pr edictable erosion

3471and storm surge levels associated with coastal storm events.

3480See Fla. Admin. Code R. 62B - 33.002(17)(b).

348837. This dune feature extends into the County right - of -

3500way. Depending on the route taken, a car using the DeVries '

3512proposed driveway might drive over or through a small part of

3523the extreme southeastern end of this dune feature. It might be

3534possible to avoid the dune feature entirely by hugging the

3544eastern side of the driveway and, to the greatest extent

3554possible, usi ng the part of the County right - of - way that is used

3570by the neighbor to the east to access their dolomite driveway

3581from White Sands Drive. If not entirely avoiding the dune

3591feature, it would be possible to drive over or through only a

3603very small part of th e dune feature where elevations are no

3615greater than 14 to 15 feet NAVD.

362238. DEP and the DeVries contend that impacts to the County

3633right - of - way should not be considered because they were not

3646timely raised. However, Petitioners ' allegations were broad

3654en ough to include consideration of those impacts.

366239. DEP and the DeVries also contend that impacts to the

3673County right - of - way are prohibited by general and special

3685conditions. General permit conditions include:

3690(f) Construction traffic shall not occur

3696an d building materials shall not be stored

3704on vegetated areas seaward of the control

3711line unless specifically authorized by the

3717permit. If the Department determines that

3723this requirement is not being met, positive

3730control measures, such as temporary fencing ,

3736designated access roads, adjustment of

3741construction sequence, or other

3745requirements, shall be provided by the

3751permittee at the direction of the

3757Department. . . .

3761* * *

3764(g) The permittee shall not disturb

3770existing beach and dune topography an d

3777vegetation except as expressly authorized in

3783the permit. Before the project is

3789considered complete, any disturbed

3793topography or vegetation shall be restored

3799as prescribed in the permit with suitable

3806fill material or revegetated with

3811appropriate beach an d dune vegetation.

3817* * *

3820(j) Any native salt - tolerant vegetation

3827destroyed during construction shall be

3832replaced with plants of the same species or,

3840by authorization of the Department, with

3846other native salt - tolerant vegetation

3852suitable for beac h and dune stabilization.

3859Unless otherwise specifically authorized by

3864the Department, all plants installed in

3870beach and coastal areas - whether to replace

3878vegetation displaced, damaged, or destroyed

3883during construction or otherwise - shall be

3890of species i ndigenous to Florida beaches and

3898dunes, such as sea oats, sea grape, saw

3906palmetto, panic grass, saltmeadow hay

3911cordgrass, seashore saltgrass, and railroad

3916vine, and grown from stock indigenous to the

3924region in which the project is located.

3931Fla. Admin. C ode R. 62B - 33.0155(3). In addition, special

3942condition 4 of proposed Permit GU - 501 states: " Existing

3952vegetation shall be disturbed only to the minimum extent

3961necessary to complete work within the authorized construction

3969limits. " Finally, proposed permit GU - 501 does not authorize the

3980construction of a driveway through the County right - of - way. See

3993Fla. Admin. Code R. 62B - 33.0155(4) (permit does not authorize

4004trespass).

400540. Notwithstanding the conditions and limitation of

4012proposed GU - 501, it is reasonable to foresee that, to use the

4025proposed driveway, cars will drive through the County right - of -

4037way between the DeVries ' proposed drive way and White Sands

4048Drive. T he extent to which the dune feature would be impacted

4060must be considered in this case. See Fla. Admin. Code R.

407162B - 33.002(33) (impacts can be direct or indirect).

408041. It appears possible to use the DeVries ' proposed

4090driveway and avoid any parts of the dune feature in t he County ' s

4105right - of - way above the 14 - foot NAVD elevation by using the part

4121of the right - of - way currently being used for access by the

4135DeVries ' neighbor to the east. To minimize impacts, this should

4146be required as an additional condition of GU - 501.

415642. Construction of the proposed beach house and dune

4165walkover on the DeVries ' property will not alter the coastal

4176system by measurably affecting the existing shoreline change

4184rate, significantly interfering with its ability to recover from

4193a coastal storm, di sturbing topography or vegetation such that

4203the dune system becomes unstable or suffers catastrophic failure

4212or the protective value of the dune system is significantly

4222lowered. As such, there will be no significant impacts. See

4232Fla. Admin. Code R. 62B - 3 3.002(33)(b).

4240CONCLUSIONS OF LAW

4243Standing

424443. In addition to the administrative agency making the

4253decision (in this case, DEP), and under section 120.52(13)(a),

4262Florida Statutes, "specifically named" persons whose substantial

4269interests are being determined by the agency in the proceeding

4279(in this cas e, the DeVries ), section 120.52(13)(b) provides that

4290the term "party" includes "[a]ny other person . . . whose

4301substantial interests will be affected by proposed agency action

4310. . . ."

431444. For many years, what a person seeking standing under

4324what is now sect ion 120.52(13)(b) had to allege and prove was

4336determined under the standard set out in Agrico Chem. Co. v.

4347Dep ' t of Envtl. Reg. , 406 So. 2d 478, 482 (Fla. 2d DCA 1981):

4362[B]efore one can be considered to have a

4370substantial interest in the outcome of the

4377pr oceeding he must show 1) that he will

4386suffer injury in fact which is of sufficient

4394immediacy to entitle him to a section 120.57

4402hearing, and 2) that his substantial injury

4409is of a type or nature which the proceeding

4418is designed to protect. The first aspec t of

4427the test deals with the degree of injury.

4435The second deals with the nature of the

4443injury. Although Agrico was decided on the

4450second prong of the test, its first prong

4458also has been applied to make standing

4465determinations.

446645. More recent appellate dec isions have clarified the

4475first prong of the Agrico test. In order for a third party to

4488have standing as a petitioner to challenge agency action in an

4499administrative proceeding, the evidence must prove that the

4507petitioner has substantial rights or interes ts that reasonably

4516could be affected by the agency's action. See St. Johns

4526Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. , 54

4536So. 3d 1051, 1055 (Fla. 5th DCA 2011); Palm Beach Cnty. Envtl.

4548Coal. v. Fla. Dep't of Envtl. Prot. , 14 So. 3d 1076, 1078 (Fla.

45614th DCA 2009); Peace River/Manasota Reg'l Water Supply Auth. v.

4571IMC Phosphates Co. , 18 So. 3d 1079, 1082 (Fla. 2d DCA 2009);

4583Reily Enters., LLC v. Fla. Dep't of Envtl. Prot. , 990 So. 2d

45951248, 1251 (Fla. 4th DCA 2008). See also § 403.412(5), Fla.

4606Sta t. ( " A citizen's substantial interests will be considered to

4617be determined or affected if the party demonstrates it may

4627suffer an injury in fact which is of sufficient immediacy and is

4639of the type and nature intended to be protected by this chapter.

4651No de monstration of special injury different in kind from the

4662general public at large is required. A sufficient demonstration

4671of a substantial interest may be made by a petitioner who

4682establishes that the proposed activity, conduct, or product to

4691be licensed o r permitted affects the petitioner's use or

4701enjoyment of air, water, or natural resources protected by this

4711chapter. " ).

471346. Citing Legal Environmental Assistance Foundation, Inc.

4720v. Department of Environmental Protection , 702 So. 2d 1352, 1153

4730(Fla. 1st DCA 1997), the Department and the DeVries seem to

4741argue that section 403.412(5) makes the demonstration of

4749standing under section 120.52(13)(b) easier for citizens than

4757for non - citizens by eliminating the need to allege a special

4769injury. The requirements for standing under section

4776120.52(13)(b) are the same for citizens and non - citizens alike.

4787(The decision in Legal Assistance Foundation turned on the issue

4797whether a foreign corporation had citizen ' s standing to

4807intervene under the statute; no other basis of standing was

4817alleged . ) If special in jury were required, the McAlpins '

4829alleged injuries are different in kind from the general public

4839at large.

484147. The Department and the DeVries also argue that

4850Petitioners have no standing to challenge the permit because

4859neither is a permanent residents of F lorida; that Dr. McAlpin

4870has no standing because he has no legal interest in the

4881property; and that Mrs. McAlpin has no standing because she is

4892not involved in the care and upkeep of the property. These

4903arguments also fail. Proposed activities taking pla ce on

4912adjacent property could reasonably affect Petitioners '

4919substantial interests so as to give the McAlpins standing to

4929challenge them.

4931The Frontal Dune

493448. S ection 161.053, Florida Statutes, authorizes CCCL

4942lines in order to protect beach - dune systems from " imprudent

4953construction which can jeopardize the stability of the beach -

4963dune system, accelerate erosion, provide inadequate protection

4970to upland structures, endanger adjacent properties, or interfere

4978with public beach access. "

498249. Under section 161.053( 5)(b), the Department " may not

4991issue a permit for any structure, other than a coastal or shore

5003protection structure, minor structure, or pier, . . . which is

5014proposed for a location that . . . will be seaward of the

5027seasonal high water line within 30 years after the date of

5038application for the permit. " The proposed CCCL permit is not

5048prohibited by this statute.

505250. Section 161.053(5)(c) provides that the Department may

5060issue a permit for a single - family dwelling seaward of the 30 -

5074year projection of the seas onal high water line if:

50841. The parcel was platted or subdivided by

5092metes and bounds before the effective date

5099of this section;

51022. The owner of the parcel does not own

5111another parcel immediately adjacent to and

5117landward of the parcel for which the

5124dwell ing is proposed;

51283. The proposed single - family dwelling is

5136located landward of the frontal dune

5142structure; and

51444. The proposed single - family dwelling will

5152be as far landward on its parcel as is

5161practicable without being located seaward of

5167or on the frontal dune.

517251. Section 161.053(5)(a) defines a " frontal dune " as " the

5181first natural or manmade mound or bluff of sand which is located

5193landward of the beach and which has sufficient vegetation,

5202height, continuity, and configuration to offer protective

5209val ue. "

521152. Although not necessary, p roposed GU - 501 could be

5222issued under section 163.053(5)(c) because the construction it

5230authorizes is entirely landward of the frontal dune created by

5240the beach restoration project, and all the other statutory

5249criteria are m et.

5253Adverse Impacts

525553. Florida Administrative Code Rule 62B - 33.005(2)

5263requires an applicant to provide the Department with " sufficient

5272information pertaining to the proposed project to show that

5281adverse and other impacts associated with the construction have

5290been minimized and that the construction will not result in a

5301significant adverse impact. "

530454. Rule 62B - 33.002(33) states: "' Impacts ' are those

5315effects, whether direct or indirect, short or long term, which

5325are expected to occur as a result of construction . . . . "

5338Subsection (b) of the rule states:

"5344Significant Adverse Impacts" are adverse

5349impacts of such magnitude that they may:

53561. Alter the coastal system by:

5362a. Measurably affecting the

5366existing shoreline change rate;

5370b. Significantly interfering with

5374its ability to recover from a

5380coastal storm;

5382c. Disturbing topography or

5386vegetation such that the dune

5391system becomes unstable or suffers

5396catastrophic failure or the

5400protective value of the dune

5405system is significantly lowered;

5409or

54102. Cause a take, as defined in

5417Section 379.2431(1), F.S., unless

5421the take is incidental pursuant to

5427Section 379.2431(1)(f), F.S.

543055. Rule 62B - 33.005(4) requires the Department to issue a

5441permit for construction which an applicant has shown to be

5451clearly justified by demonstrating that all standards,

5458guidelines, and other requirements of chapter 161, part I,

5467Florida Statutes, and chapter 62B - 33 have been met, including:

5478(a) The construction will not result in

5485removal or destruction of native vegetation

5491which will either destabilize a frontal,

5497primary, or significant dune or cause a

5504significant adverse impact to the beach and

5511dune system due to increased erosion by wind

5519or water;

5521(b) The construction will not result in

5528removal or disturbance of in situ sandy

5535soils of the beach and dune system to such a

5545degree that a significant adverse impact to

5552the beach and dune system would result from

5560either reducing the existing ability of the

5567system to resist erosion during a storm or

5575lowering existing levels of storm protection

5581to upland properties and structures;

5586(c) The construction will not direct

5592discharges of water or other fluids in a

5600seaward direction and in a manner that would

5608result in significant adverse impacts. For

5614the purposes of this rule section,

5620construction shall be designed so as to

5627minimize erosion induced surface water

5632runoff within the beach and dune system and

5640to prevent additional seaward o r off - site

5649discharges associated with a coastal storm

5655event ;

5656(d) The construction will not result in the

5664net excavation of the in situ sandy soils

5672seaward of the control line or 50 - foot

5681setback;

5682(e) The construction will not cause an

5689increase in struct ure - induced scour of such

5698magnitude during a storm that the structure -

5706induced scour would result in a significant

5713adverse impact;

5715(f) The construction will minimize the

5721potential for wind and waterborne missiles

5727during a storm;

5730(g) The activity will not interfere with

5737public access, as defined in Section

5743161.021, F.S.; and

5746(h) The construction will not cause a

5753significant adverse impact to marine

5758turtles, or the coastal system.

576356. Rule 62B - 33.002(17) states: "' Dune ' is a mound, bluff

5776or ridge of loose sediment, usually sand - sized sediment, lying

5787upland of the beach and deposited by any natural or artificial

5798mechanism, which may be bare or covered with vegetation and is

5809subject to fluctuations in configuration and loc ation. "

5817Subsection (a) of the rule states: "' Significant dune ' is a

5829dune which has sufficient height and configuration or vegetation

5838to offer protective value. " Subse ction (b) of the rule states:

"5849' Primary dune ' is a significant dune which has sufficie nt

5861alongshore continuity to offer protective value to upland

5869property. "

587057. R easonable assurances have been provided that t he

5880DeVries ' proposal will not cause significant adverse impacts,

5889and will not destabilize a primary or significant dune or cause

5900a sig nificant adverse impact due to erosion. Impacts to dunes

5911will have been minimized, and special condition 5 of proposed

5921Permit GU - 501 will be sufficient to mitigate for the minimized

5933impacts to vegetation from construction. The proposal will add

5942sandy soils and will not disturb in situ sandy soils of the

5954beach and dune system to such a degree that a significant

5965adverse impact to the beach and dune system will result.

5975Temporary impacts from construction will be minimized by special

5984conditions 1, 3, 4, and 9. The DeVries ' proposal will meet the

5997requirements of rule 62B - 33.005(4) .

6004RECOMMENDATION

6005Based upon the foregoing Findings of Fact and Conclusions

6014of Law, it is

6018RECOMMENDED that DEP enter a final order issuing GU - 501 ,

6029with an additional condition to use the part of the County ' s

6042right - of - way currently being used for access by the DeVries '

6056nei ghbor to the east and avoid any parts of the dune feature in

6070the right - of - way above the 14 - foot NAVD elevation to access the

6086DeVries ' proposed driveway.

6090DONE AND ENTERED this 2nd day of November , 2011 , in

6100Tallahassee, Leon County, Florida.

6104S

6105J. LAWRENCE JOHNSTON

6108Administrative Law Judge

6111Division of Administrative Hearings

6115The DeSoto Building

61181230 Apalachee Parkway

6121Tallahassee, Florida 32399 - 3060

6126(850) 488 - 9675

6130Fax Filing (850) 921 - 6847

6136www.doah.state.fl.us

6137Filed with the Clerk of the

6143Division of Administrative Hearings

6147this 2nd day of November , 2011 .

6154COPIES FURNISHED :

6157Ross Stafford Burnaman, Esquire

61611018 Holland Drive

6164Tallahassee, Florida 32301 - 4508

6169Kelly L. Russell, Esquire

6173Department of Environmental Protection

6177The Douglas Building, Mail Station 35

61833900 Commonwealth Boulevard

6186Tallahassee, Florida 32399 - 3000

6191E . Dylan Rivers, Esquire

6196Ausley and McMullen, P.A.

6200123 South Calhoun Street

6204Tallahassee, Florida 32301 - 1517

6209Herschel T. Vinyard, Jr., Secretary

6214Department of Environmental Protection

6218The Douglas Building, Mail Station 35

62243900 Commonwealth Boulevard

6227Tallahassee, Florida 32399 - 3000

6232Tom Beason, General Counsel

6236Department of Environmental Protection

6240The Douglas Building, Mail Station 35

62463900 Comm onwealth Boulevard

6250Tallahassee, Florida 32399 - 3000

6255Lea Crandall, Agency Clerk

6259Department of Environmental Protection

6263The Douglas Building, Mail Station 35

62693900 Commonwealth Boulevard

6272Tallahassee, Florida 32399 - 3000

6277NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6283All parties have the right to submit written exceptions within 15

6294days from the date of this Recommended Order. Any exceptions to

6305this Recommended Order should be filed with the agency that will

6316issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/20/2011
Proceedings: Department's Responses to Exceptions to the Recommended Order filed.
PDF:
Date: 12/20/2011
Proceedings: The Devries' Responses to Petitioners' Exceptions to the Recommended Order filed.
PDF:
Date: 12/20/2011
Proceedings: Petitioners' Response to the Devries' Exceptions to the Recommended Order and to the Department's Exception to the Recommended Order filed.
PDF:
Date: 12/20/2011
Proceedings: Petitioners' Exceptions to the Recommended Order filed.
PDF:
Date: 12/20/2011
Proceedings: Department's Exceptions to the Recommended Order filed.
PDF:
Date: 12/20/2011
Proceedings: (Agency) Final Order filed.
PDF:
Date: 12/19/2011
Proceedings: Agency Final Order
PDF:
Date: 11/17/2011
Proceedings: The DeVries' Exceptions to the Recommended Order filed.
PDF:
Date: 11/02/2011
Proceedings: Recommended Order
PDF:
Date: 11/02/2011
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/02/2011
Proceedings: Recommended Order (hearing held August 1 and 10, 2011). CASE CLOSED.
PDF:
Date: 09/21/2011
Proceedings: Amended Proposed Recommended Order of Respondents Mark S. DeVries and Rita L. DeVries filed.
PDF:
Date: 09/21/2011
Proceedings: Notice of Filing Amended Proposed Recommended Order filed.
PDF:
Date: 09/20/2011
Proceedings: Proposed Recommended Order of Respondents, Mark S. Devries and Rita L. Devries filed.
PDF:
Date: 09/20/2011
Proceedings: Department's Proposed Recommended Order filed.
PDF:
Date: 09/20/2011
Proceedings: Petitioners' Proposed Recommended Order filed.
PDF:
Date: 09/19/2011
Proceedings: Order Granting Extension of Time.
Date: 09/19/2011
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 09/19/2011
Proceedings: Department's Motion for Extension of Time to File Proposed Recommended Orders filed.
PDF:
Date: 09/15/2011
Proceedings: Petitioners' Notice of Filing filed.
Date: 09/09/2011
Proceedings: Transcript of Proceedings (Volume I through IV) (not available for viewing) filed.
PDF:
Date: 08/29/2011
Proceedings: Order Ruling on Deposition Objections.
PDF:
Date: 08/19/2011
Proceedings: Department's Objections to Deposition Testimony of Michael Dombrowski filed.
PDF:
Date: 08/17/2011
Proceedings: Objections to Deposition Testimony of Michael Dombrowski filed.
Date: 08/10/2011
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 08/02/2011
Proceedings: Notice of Continued Hearing (hearing set for August 10, 2011; 9:00 a.m.; Tallahassee, FL).
Date: 08/01/2011
Proceedings: CASE STATUS: Hearing Partially Held; continued to August 10, 2011; 9:00 a.m.; Tallahassee, FL.
PDF:
Date: 08/01/2011
Proceedings: Department's Objections in Response to Petitioners' Designations of the Deposition Testimony of Glenn Mark AcAlpin filed.
PDF:
Date: 08/01/2011
Proceedings: Department's Objections in Response to Petitioners' Designations of the Deposition Testimony of Linda McAlpin filed.
PDF:
Date: 07/29/2011
Proceedings: Response to Petitioners' Designations of the Deposition Testimony of Linda McAlpin filed.
PDF:
Date: 07/29/2011
Proceedings: Response to Petitioners' Designations of the Deposition Testimony of Glenn Mark McAlpin filed.
PDF:
Date: 07/28/2011
Proceedings: Responses to Petitioners' Interrogatories to Respondent Rita L. DeVries filed.
PDF:
Date: 07/28/2011
Proceedings: Responses to Petitioners' Interrogatories to Respondent Mark S. DeVries filed.
PDF:
Date: 07/28/2011
Proceedings: Florida Department of Environmental Protection's Responses to Petitioners Glenn Mark McAlpin and Linda McAlpin's First Set of Interrogatories filed.
PDF:
Date: 07/28/2011
Proceedings: Petitioners' Notice of Filing of Objections and Answers to Interrogatories by Respondent Department of Environmental Protection filed.
PDF:
Date: 07/27/2011
Proceedings: Petitioners' Notice of Filing Objections and Answers to Interrogatories by Respondents Mark S. and Rita L. DeVries filed.
PDF:
Date: 07/27/2011
Proceedings: Pre-hearing Stipulation filed.
PDF:
Date: 07/26/2011
Proceedings: Notice of Filing Responses and Objections to Interrogatories to Glenn Mark McAlpin and Linda McAlpin filed.
PDF:
Date: 07/26/2011
Proceedings: Deposition of Glenn Mark McAlpin filed.
PDF:
Date: 07/26/2011
Proceedings: Petitioners' Designations of the Deposition Testimony of Glenn Mark McAlpin filed.
PDF:
Date: 07/22/2011
Proceedings: Amendment to Order of Pre-hearing Instructions, Conditional Notice of Pre-hearing Conference, and Order Allowing the Use of Depositions in Lieu of Petitioners' Appearance and Live Testimony.
Date: 07/22/2011
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 07/22/2011
Proceedings: Telephonic Deposition of Linda Sue McAlpin (deposition not available for viewing) filed.
PDF:
Date: 07/22/2011
Proceedings: Petitioners' Designations of the Deposition Testimony of Linda McAlpin filed.
PDF:
Date: 07/21/2011
Proceedings: Petitioners' Motion to Appear Via Deposition at Hearing and Request for Official Recognition filed.
PDF:
Date: 07/21/2011
Proceedings: Order Granting Official Recognition.
PDF:
Date: 07/20/2011
Proceedings: Joint Motion for Case Management Conference filed.
PDF:
Date: 07/18/2011
Proceedings: Notice and Certificate of Service of Department of Environmental Protection's Responses to Petitioners Glenn Mark McAlpin and Linda McAlpin's First Set of Interrogatories filed.
PDF:
Date: 07/18/2011
Proceedings: Respondent's Notice of Service of Answers to Petitioners' Interrogatories to Rita L. DeVries filed.
PDF:
Date: 07/18/2011
Proceedings: Respondents' Notice of Service of Answers to Petitioners' Interrogatories to Mark S. DeVries filed.
PDF:
Date: 07/18/2011
Proceedings: Petitioners' Response to Request for Production filed.
PDF:
Date: 07/18/2011
Proceedings: Petitioners' Notice of Service of Objections and Answers to Interrogatories filed.
PDF:
Date: 07/14/2011
Proceedings: Petitioner Glenn Mark McAlpin's Response to Request for Admissions filed.
PDF:
Date: 07/14/2011
Proceedings: Petitioner Linda McAlpin's Response to Request for Admissions filed.
PDF:
Date: 07/13/2011
Proceedings: Order Denying Motion Regarding Standing.
PDF:
Date: 07/12/2011
Proceedings: Attachment #2 to Respondent's First Request for Official Recognition filed.
PDF:
Date: 07/12/2011
Proceedings: Attachment #1 to Respondents' First Request for Official Recognition filed.
PDF:
Date: 07/12/2011
Proceedings: Respondents' First Request for Official Recognition filed.
PDF:
Date: 07/12/2011
Proceedings: Notice of Taking Deposition (of M. Dombrowski) filed.
PDF:
Date: 07/12/2011
Proceedings: Notice of Taking Telephonic Deposition (of L. McAlpin) filed.
PDF:
Date: 07/11/2011
Proceedings: Attachment #2 to Petitioners' Second Request for Official Recognition filed.
PDF:
Date: 07/11/2011
Proceedings: Attachment #1 to Petitioners' Second Request for Official Recognition filed.
PDF:
Date: 07/11/2011
Proceedings: Petitioners' Second Request for Official Recognition filed.
PDF:
Date: 07/07/2011
Proceedings: Petitioners' Response to Respondent DeVries' Motion for Summary Recommended Order and to Relinquish Jurisdiction filed.
PDF:
Date: 07/07/2011
Proceedings: Cross-notice of Taking Deposition (of A. McNeil) filed.
PDF:
Date: 07/06/2011
Proceedings: Petitioners' First Request for Official Recognition filed.
PDF:
Date: 07/06/2011
Proceedings: Notice of Taking Deposition Duces Tecum (of G. McAlpin) filed.
PDF:
Date: 07/05/2011
Proceedings: Response to Respondent DeVries' Motion for Summary Recommended Order and to Relinquish Jurisdiction filed.
PDF:
Date: 07/01/2011
Proceedings: Department's Response to Respondents' Motion for Summary Recommended Order and to Relinquish Jurisdiction filed.
PDF:
Date: 07/01/2011
Proceedings: Respondent Florida Department of Environmental Protection's Response to Petitioners' First Request for Admissions filed.
PDF:
Date: 07/01/2011
Proceedings: Petitioner's Notice of Filing Admissions by Respondent Department of Environmental Protection filed.
PDF:
Date: 06/30/2011
Proceedings: Responses to Petitioner's Request for Admissions to Mark S. DeVries and Rita L. DeVries filed.
PDF:
Date: 06/27/2011
Proceedings: Respondents' Mark S. DeVries and Rita L. DeVries Witness List filed.
PDF:
Date: 06/24/2011
Proceedings: Motion for Summary Recommended Order and to Relinquish Jurisdiction filed.
PDF:
Date: 06/17/2011
Proceedings: Respondents Mark S. DeVries and Rita L. DeVries Request for Production to Petitioner, Linda McAlpin filed.
PDF:
Date: 06/17/2011
Proceedings: Respondents Mark S. DeVries and Rita L. DeVries Request for Production to Petitioner, Glenn Mark McAlpin filed.
PDF:
Date: 06/17/2011
Proceedings: Respondents Mark S. DeVries and Rita L. DeVries Notice of Service of First Interrogatories to Petitioner Glenn Mark McAlpin filed.
PDF:
Date: 06/17/2011
Proceedings: Respondents Mark S. DeVries and Rita L. DeVries Notice of Service of First Interrogatories to Petitioner, Linda McAlpin filed.
PDF:
Date: 06/17/2011
Proceedings: Petitioners' Notice of Service of Interrogatories to Respondents Mark S. and Rita L. DeVries filed.
PDF:
Date: 06/17/2011
Proceedings: Petitioners' Notice of Service of Interrogatories to Respondent Department of Environmental Protection filed.
PDF:
Date: 06/16/2011
Proceedings: Respondents Mark S. DeVries and Rita L. DeVries Request for Admissions to Petitioner, Linda McAlpin filed.
PDF:
Date: 06/16/2011
Proceedings: Respondents Mark S. DeVries and Rita L. DeVries Request for Admissions to Petitioner, Glenn Mark McAlpin filed.
PDF:
Date: 06/10/2011
Proceedings: Response to Amended Petition for Administrative Hearing filed.
PDF:
Date: 06/06/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/06/2011
Proceedings: Notice of Hearing (hearing set for August 1, 2011; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 06/03/2011
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 06/01/2011
Proceedings: Notice of Appearance (filed by R. Clarke, .Jr, E. Rivers).
PDF:
Date: 05/24/2011
Proceedings: Initial Order.
PDF:
Date: 05/23/2011
Proceedings: Letter to K. Russell from R. and M. DeVries in response to amended petition filed.
PDF:
Date: 05/23/2011
Proceedings: Amended Petition for Administrative Hearing filed.
PDF:
Date: 05/23/2011
Proceedings: Permit for Construction or Other Activities Pursuant to Section 161.053, Florida Statutes filed.
PDF:
Date: 05/23/2011
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
05/23/2011
Date Assignment:
05/24/2011
Last Docket Entry:
12/20/2011
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (8):

Related Florida Rule(s) (3):