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.
Recommended Order on Wednesday, November 2, 2011.
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.
- 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: 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: 09/20/2011
- Proceedings: Proposed Recommended Order of Respondents, Mark S. Devries and Rita L. Devries filed.
- 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.
- Date: 09/09/2011
- Proceedings: Transcript of Proceedings (Volume I through IV) (not available for viewing) filed.
- PDF:
- Date: 08/19/2011
- Proceedings: Department's 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: 07/26/2011
- Proceedings: Notice of Filing Responses and Objections to Interrogatories to Glenn Mark McAlpin and Linda McAlpin filed.
- PDF:
- Date: 07/26/2011
- Proceedings: 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: 07/18/2011
- 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' 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: 07/12/2011
- 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: 07/11/2011
- 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: 07/07/2011
- Proceedings: Petitioners' Response to Respondent DeVries' Motion for Summary Recommended Order and to Relinquish Jurisdiction 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: 06/06/2011
- Proceedings: Notice of Hearing (hearing set for August 1, 2011; 9:00 a.m.; Tallahassee, FL).
- PDF:
- Date: 05/23/2011
- Proceedings: Letter to K. Russell from R. and M. DeVries in response to amended petition 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
-
Ross Stafford Burnaman, Esquire
Address of Record -
Robert Neil Clarke, Jr., Esquire
Address of Record -
Eugene Dylan Rivers, Esquire
Address of Record -
Kelly L. Russell, Esquire
Address of Record