11-005313 Amanda Pope vs. Daniel And Donna Grace; Joseph And Linda Noftell; Paul And Debra Linger; Ann Pastore; Thompson And Dana Fillmer; Joseph And Dottie Scruggs; Stephen Frey; Lindsey Branlitt And Jacqueline Porter, Trustees Of The Land Trust Dated May 1, 2005; Et Al.
 Status: Closed
Recommended Order on Friday, October 5, 2012.


View Dockets  
Summary: Applicants failed to demonstrate entitlement to an exemption for the repair of a dune walkover pursuant to section 161.053(11)(b), Florida Statutes.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8AMANDA POPE AND ANASTASIA, )

13INC., )

15)

16Petitioners, )

18)

19vs. ) Case No s . 11 - 5313

28) 11 - 6248

32DANIEL AND DONNA GRACE; JOSEPH )

38AND LINDA NOFTELL; PAUL AND )

44DEBRA LINGER; ANN PASTORE; )

49THOMPSON AND DANA FILLMER; )

54JOSEPH AND DOTTIE SCRUGGS ; )

59STEPHEN FREY; LINDSEY BRAM LITT )

65AND JACQUELINE PORTER, TRUSTEES )

70OF THE LAND TRUST DATED MAY 1, )

782005; AND DEPARTMENT OF )

83ENVIRONMENTAL PROTECTION, )

86)

87Respondents. )

89)

90)

91RECOMMENDED ORDER

93Pursuant to notice, a formal hearing was held in this case

104on April 17 and May 24, 2012 , in Jacksonville , Florida, before

115Lawrence P. Stevenson, a duly - designated Administrative Law

124Judge of the Division o f Administrative Hearings.

132APPEARANCES

133For Petitioner s : Timothy J. Perry , Esquire

141Oertel, Fernandez, Bryant &

145Atkinson, P .A.

148Post Office Box 1110

152Tallahassee , Florida 32 302

156For Respondent Department of Environmental Protection :

163Brynna J. Ross , Esquire

167Department of Environm ental Protection

172Mail Station 35

1753900 Commonwealth Boulevard

178Tallahassee , Florida 32399 - 3000

183For Respondents D aniel and Donna Grace ; J oseph and Linda

194Oftell ; P aul and Debra Linger ; A nn P astore ; T hompson and Dana

208Fillmer; J oseph and Dottie Scruggs ; S tephen Frey ; L indsey

219Bram litt and Jacqueline Porter , Trustees of the Land Trust dated

230May 1, 2005 :

234Daniel A. Mowrey , Esquire

238Mowrey, Shoemaker and Beardsley

2423940 Lewis Speedway, Suite 2103

247St. Augustine , Florida 3 2084

252Alysson Hall Stevens, Esquire

256Mowrey Law Firm, P.A.

260515 North Ad ams Street

265Tallahassee, Florida 32301

268STATEMENT OF THE ISSUE

272At issue in this proceeding is w hether Respondents D aniel

283and Donna Grace ; J oseph and Linda Oftell ; P aul and Debra Linger ;

296A nn P astore ; T hompson and Dana Fillmer ; J osep h and Dottie

310Scruggs ; S tephen Frey ; and L indsey Bram litt and Jacqueline

321Porter , Trustees of the Land Trust dated May 1, 2005

331(collectively referenced herein as "Applicants") qualify for an

340exemption from the requirements of coastal construction control

348lin e ("CCCL") permitting pursuant to section 161.053(11)(b),

358Florida Statutes, for their proposed activities in regard to a

368dune walkover structure seaward of the CCCL at the end of

379Milliken Lane in St. Johns County, as provided in the Amended

390Exemption Deter mination issued by the Department of

398Environmental Protection ("Department") on September 8, 2011.

407PRELIMINARY STATEMENT

409Through an email t o the Department from their counsel on

420March 24, 2011, Applicants requested an exemption from the CCCL

430permit require ment related to repair and maintenance to be

440performed on an existing dune walkover structure providing

448access to the Atlantic Ocean from their neighborhood, Milliken's

457Replat, in St. Johns County. The Department issued an

"466Exemption Notice" to the Applic ants on March 30, 2011, that

477stated as follows, in relevant part:

483According to the description provided within

489the request, the proposed work is to consist

497of repair and maintenance of a dune

504walkover, which would appear not to result

511in disturbance to the dune system nor

518require modification of the structure's

523foundation. Therefore, the proposed work

528appears to be exempt from the permitting

535requirements of this Department pursuant to

541s ection 161.053(11), Florida Statutes.

546Please note that the work will h ave to be

556conducted so as not to damage dune

563topography or beach and dune vegetation, and

570that the replacement of the walkover

576structure or foundation members may require

582a permit from the Department, either through

589a field permit or an administrative perm it

597under c hapter 62B - 33.008, F.A.C. The

605Department does not endorse the engineering

611adequacy or safety of the proposed work.

618On September 8, 2011, the Department issued an "Amended

627Exemption Notification" that stated as follows, in relevant

635part:

636This is an amended letter in response to

644your request received by the Department on

651March 24, 2011, for a determination of

658exemption from permit requirements for the

664repair and maintenance of a dune walkover

671structure at the above location.

676According to the desc ription provided by the

684contractor, Rick Powell of Barefoot Marine,

690the proposed work is to consist of repair

698and maintenance of the portion of a dune

706walkover located landward of the dune crest.

713The repair and maintenance is to consist of

721replacement of bolts, screws, plates and

727other fasteners; replacement of wood members

733such as handrails, posts above walkover deck

740planks, deck planks and stringers; and

746repairs to support members such as the

753addition of sister posts next to existing

760posts. Repair and m aintenance activities

766shall not result in the realignment or

773reconfiguration of the walkover outside of

779the extents of the original structure. With

786the exception of the minimal ground

792disturbance required to repair posts or to

799add sister posts, no vegetat ion shall be

807removed nor dune topography altered.

812Based on the above description, the proposed

819work is not expected to cause a measurable

827interference with the natural functioning of

833the coastal system. Therefore, the

838Department has determined that the p roposed

845work satisfies the exemption requirements of

851Section 161.053(11)(b), Florida Statutes.

855All debris must be removed and disposed of

863landward of the coastal construction control

869line.

870On October 7, 2011, Petitioner Amanda Pope filed a Petition

880for F ormal Administrative Hearing ("Pope Petition") contesting

890the Department's decision to grant the exemption. On

898October 14, 2011, the Department forwarded the Pope Petition to

908the Division of Administrative Hearings ("DOAH") for assignment

918of an Administra tive Law Judge and the conduct of a formal

930hearing. The matter was assigned DOAH Case NO. 11 - 5313.

941On December 2, 2011, Petitioner Anastasia, Inc. filed a

950Petition for Formal Administrative Hearing ("Anastasia

957Petition") contesting the Department's decisi on to grant the

967exemption. On December 9, 2011, the Department forwarded the

976Anastasia Petition to DOAH for assignment of an Administrative

985Law Judge and the conduct of a formal hearing. The matter was

997assigned DOAH Case NO. 11 - 6248 and scheduled for hea ring on

1010January 5, 2012 .

1014On December 11, 2011, the Department filed a Motion to

1024Consolidate, which was granted by order dated December 20, 2011.

1034The final hearing was rescheduled for February 16, 2012. On the

1045motion of Anastasia, Inc., the case was conti nued to April 17,

10572012, on which date the hearing convened. A second day of

1068hearing was scheduled for May 24, 2012, on which date the

1079hearing was completed.

1082At the outset of the hearing on April 17, 2012, Applicants

1093made an oral motion to dismiss, rais ing for the first time the

1106question of the timeliness of both the Pope Petition and the

1117Anastasia Petition. The parties were given until April 27,

11262012 , to submit briefs on the issue. By order dated May 2,

11382012, the undersigned denied the Applicants' motion . In their

1148P roposed R ecommended O rders, Applicants and the Department

1158continue to argue that the petitions should be dismissed, but

1168have not persuaded the undersigned to change the conclusion

1177reached in the May 2, 2011 order. 1 /

1186At the opening of the fina l hearing, Joint Exhibits 1

1197through 20 were admitted into evidence by stipulation.

1205Petitioners presented the testimony of Amanda Pope; Kenneth

1213Pfrengle, the president of and stockholder in Anastasia, Inc.;

1222Christopher C. Kathe, accepted as an expert in str uctural

1232engineering; R. Brandt Wilson, accepted as an expert in

1241surveying; Nancy Lowe, a former resident of Milliken Lane; Paul

1251Linger, a resident of Milliken Lane; and DEP employees Trey

1261Hatch, James Martinello, Larry Teich, and Fritz Wettstein.

1269Petition ers' Exhibits 2 through 9, 11 through 16, 18 through 20,

128124 through 27, 29, 31, and 43 through 46 were admitted into

1293evidence.

1294Applicants presented the testimony of Robert Morgan, a

1302structural engineer; Rick Powell of Barefoot Marine

1309Construction, the cont ractor for the proposed repairs to the

1319dune walkover; and Donna Grace, a resident of Milliken Lane.

1329Applicants' Exhibits 7, 8, 12 and 16 were admitted into

1339evidence.

1340The Department presented the testimony of Tony McNeal, the

1349administrator of the Departmen t's CCCL program within the Bureau

1359of Beaches and Coastal Systems ("Bureau") , and accepted as an

1371expert in coastal engineering. The Department's Exhibit 1 was

1380admitted into evidence.

1383A complete transcript of the proceeding was not ordered by

1393any of the pa rties. Selected portions of the transcript were

1404filed at DOAH on July 3 and 5, 2012. The Department filed two

1417motions for extension of the time for filing proposed

1426recommended orders, which were granted by orders dated July 17

1436and July 26, 2012. All par ties filed P roposed R ecommended

1448O rders in keeping with the Order Granting Extension of Time

1459dated July 26, 2012. The parties' submissions have been

1468considered in the preparation of this Recommended Order.

1476All references to the Florida Statutes are to the 20 11

1487edition, unless otherwise noted.

1491FINDINGS OF FACT

1494Based on the oral and documentary evidence presented at the

1504final hearing and on the entire record of the proceeding, the

1515following findings of fact are made:

15211. The proposed project site is located a t the seaward end

1533of Milliken Lane, in the development known as "Milliken's

1542Replat," in Crescent Beach, Florida. The development consists

1550of 10 lots between State Road A1A and the Atlantic Ocean. The

1562privately maintained Milliken Lane runs west to east,

1570perpendicular to A1A . Milliken Lane bisects the 10 lots, i.e.,

1581five lots are on each side of the lane. Lots 1 through 5 are on

1596the north side of Milliken Lane, and Lots 6 through 10 are on

1609the south side.

16122. Lots 5 and 6 are the largest lots and are t he lots

1626nearest the ocean . Petitioner Anastasia, Inc. , owns Lot 5 and

1637Petitioner Amanda Pope owns Lot 6. The sole officer and

1647shareholder of Anastasia, Inc. , is Kenneth Pfrengle.

16543. The remaining eight lots are owned by Applicants , as

1664follows: Steven F rey owns Lot 1; Daniel and Donna Grace own Lot

16772; Paul and Debra Linger own Lot 3; Ann Pastore owns Lot 4;

1690Lindsey Bramlitt and Jacqueline Porter, Trustees of the Land

1699Trust dated May 1, 2005, own Lot 7; Joseph and Linda Noftell own

1712Lot 8; Joseph and Dotti e Scruggs own Lot 9; and Thompson and

1725Dana Filmer own Lot 10 .

17314. Milliken's Replat was duly recorded on October 11,

17401983 , in the Public Records of St. Johns County, Florida, Map

1751Book 15, Page 100.

17555. The Milliken's Replat graphic representation of the

1763de velopment shows a line between Lots 5 and 6 and indicates that

1776it is a "6' WIDTH WALKWAY FOR WALKWAY TO BEACH." The indicated

1788walkway begins at the end of Milliken Lane and extends at least

1800to the CCCL. 2 / The walkway straddles Lots 5 and 6, the two lots

1815owned by Petitioners.

18186. Milliken's Replat is also subject to a Road Maintenance

1828Agreement recorded by the original developers on January 28,

18371994 , in the Public Records of St. Johns County, O.R. 1034,

1848Page 1596. The Road Maintenance Agreement provides for the

1857continuing maintenance of Milliken Lane and "That certain six

1866(6) foot wide walkway reflected on the plat running between the

1877cul - de - sac at the end of Milliken Lane to the Atlantic Ocean,

1892including existing dunes walk - over structure."

18997. The Roa d Maintenance Agreement goes on to provide as

1910follows, in relevant part:

19142. Such road and walkway shall be

1921maintained by the parties to this agreement,

1928their heirs, successors and assigns in a

1935condition so as to make it free and passable

1944in perpetuity.

19463 . The costs of the maintenance of said

1955road and walkway shall be shared to the end

1964that each lot owner shall pay one - tenth of

1974the cost associated with maintenance costs.

1980Owners of multiple lots shall be responsible

1987for one - tenth of the cost for each lot

1997owned.

1998* * *

20015. In the event that sixty percent of the

2010lot owners determine that maintenance work

2016is necessary and contract to complete same,

2023they shall have the right to maintain a lien

2032against any lot owner who refuses to pay the

2041assessment pursuan t to the provisions of

2048this agreement. Unless waived, each lot

2054owner shall be given a minimum of ten (10)

2063days' written notice of the proposed meeting

2070to determine assessments....

20738. Petitioners purchased their respective lots subject to

2081the terms of Mi lliken's Replat and the Road Maintenance

2091Agreement.

20929. On March 11, 2011, Applicant Dan Grace sent a notice to

2104the "Property Owners of Milliken Lane" stating that a meeting to

2115discuss the maintenance of Milliken Lane would take place on

2125March 24, 2011, pu rsuant to paragraph 5 of the Road Maintenance

2137Agreement. The notice went on to state that the walkover "is in

2149need of maintenance to maintain and preserve the integrity of

2159the existing walkover," and that a proposal for the cost of

2170repair would be present ed at the meeting. Finally, the notice

2181stated that a vote on the proposal would be taken at the

2193meeting.

219410. Mr. Grace contacted Rick Powell, owner of Barefoot

2203Marine Construction, to provide a quote for the repair and

2213maintenance of the dune walkover. Mr. Powell visited the site,

2223took measurements, and provided a quote to Mr. Grace prior to

2234the March 24, 2011 , meeting.

223911. On March 22, 2011, Daniel Mowrey, counsel for

2248Applicants , had a telephone conversation with West Gregory, an

2257attorney in the Depart ment's office of general counsel ,

2266regarding the proposed repair and maintenance to the dune

2275walkover.

227612. The next day, Mr. Mowrey followed up with a letter to

2288Mr. Gregory that included copies of Milliken's Replat and the

2298Road Maintenance Agreement . Th e Applicants' chief concern was

2308Mr. Pfrengle's contention that the repair of the walkover was

2318subject to his consent as the owner of the property on which the

2331walkover sits. Mr. Mowrey stated his clients' position as

2340follows:

2341I believe the Department has taken the

2348position this matter has to do with Title

2356and/or Ownership to the property whereon

2362easement lies. This matter is clearly not

2369about ownership. The fact the easement lays

2376on the property of Mr. Pfrengle and Amanda

2384Pope is not a matter of contenti on. There

2393is no authority I can find that forces the

2402Department to obtain permission from

2407Mr. Pfrengle or Ms. Pope to issue this

2415permit. The Road Maintenance Agreement

2420controls and is clear as to the rights of

2429all owners in the Milliken Replat. Denial

2436o f a permit from the Department to maintain,

2445repair and/or replace the existing walkover

2451is unreasonable. All members of the

2457Milliken Replat have sufficient title

2462interest through the easement and Road

2468Maintenance Agreement to make application

2473based on rec orded rights. It appears the

2481Department has made the interpretation of

2487title interest as meaning right of

2493possession. This is clearly flawed.

2498I am fully aware that this matter may end up

2508in Circuit Court to resolve this dispute. I

2516want to be clear in m y representation of my

2526clients. If the Department is going to deny

2534this request for a permit, I would like to

2543know the legal justification for doing so.

2550The recorded documents are clear and speak

2557for themselves. While Mr. Pfrengle may not

2564want the walko ver replaced, he agreed to the

2573provisions of the easement and Road

2579Maintenance Agreement when he purchased his

2585home as shown on the recorded instruments.

2592If my clients are required to fill out a

2601formal written request for a permit, please

2608notify me and pr ovide the proper

2615documentation for that request. . . .

262213. The owners' meeting was held on March 24, 2011,

2632pursuant to the March 11 notice. All of the Applicants voted in

2644favor of the repairs and mainten ance to the dune walkover, 3 /

2657making an eighty perc ent majority for the work to proceed.

2668Petitioners did not attend the meeting.

267414. Also on March 24, 2011, Mr. Gregory sent an email to

2686Mr. Mowrey that read as follows, in relevant part:

2695After discussing this matter with the

2701Department's permit processor and

2705Mr. Mowrey, it appears your proposed

2711activity may be eligible for an exemption.

2718If you would like to pursue an exemption

2726determination, please send a letter

2731requesting the exemption to the Bureau . The

2739items to include in the request are listed

2747in 62B - 33.008(11). . . .

275415. Late on the afternoon of March 24, 2011, Mr. Mowrey on

2766behalf of his clients emailed a written request for an exemption

2777from the CCCL permit requirements to David Kriger, permit

2786manager for the Bureau.

279016. On March 30, 2011, the Department issued the Exemption

2800Notice quoted in the Preliminary Statement, supra .

280817. On April 14, 2011, Rick Powell of Barefoot Marine

2818Construction provided a verbal description of the walkover

2826project to Fritz Wettstein, environmental manager of the C CCL

2836program. The project plans included the use of " sister " posts

2846directly abutting and fastened to the existing posts to support

2856the repaired structure.

285918. Robert Morgan, a licensed professional engineer whose

2867company worked on the project for Barefo ot Marine, testified

2877that the timber in the existing walkover was old , possibly

2887warped, and did not provide a pure nailing surface. However,

2897the impact on the dune topography of pulling out the old posts

2909for replacement would have been "tremendous." "Sis tering" the

2918new posts to the old ones would provide the needed support while

2930minimizing environmental impact.

293319. On April 23, 2011, Mr. Morgan's company, RGM

2942Engineering, Inc., provided the Applicants with two sets of

2951structural drawings/engineering plan s for the dune walkover , one

2960of which was accepted and ultimately built . The plan that was

2972built was designed and measured to be an exact duplicate of the

2984existing walkover in all dimensions. The second plan would have

2994lowered the rebuilt walkway, making it less visually obtrusive

3003to Mr. Pfrengle and Ms. Pope .

301020. On September 8, 2011, the Department issued the

3019Amended Exemption Determination quoted in the Preliminary

3026Statement, supra . Based on Mr. Powell's project description,

3035the Department determined that the project was exempt pursuant

3044to section 161.053(11)(b), Florida Statutes.

304921. On September 16, 2011, Bureau field inspector Trey

3058Hatch conducted a site inspection of the proposed construction

3067area and beach dune system. Mr. Hatch's written inspe ction

3077report stated that the existing walkover, "located within a 6'

3087easement area used by local neighborhood," appeared to be in

3097need of repair or replacement due to the age of the wood and

3110support hardware.

311222. Mr. Powell testified that his company wai ted 21 days

3123after the issuance of the Amended Exemption Determination before

3132commencing work on the walkover.

313723. Mr. Powell's company performed all the work. The

3146digging of postholes was done by hand, without the use of

3157machines. Only two workers were on the ground at a time, and

3169only those materials immediately required were carried to the

3178walkover. Materials were passed up and down to the workers on

3189the structure to minimize disturbance to the dune system.

319824. Mr. Morgan testified that the new post s were placed

3209about five feet into the ground, to the depth of the old posts.

3222Nearly e very old post was sistered to a new post , and most of

3236the walkover's structure was replaced . Mr. Morgan stated that

3246the repaired walkway had a slightly larger east - west footprint

3257due to the sistered posts, but that the north - south footprint

3269was exactly the same as that of the old walkover.

327925. As noted above, the Department's Amended Exemption

3287Determination found the Applicants' project exempt pursuant to

3295section 161.0 53(11)(b), which provides:

3300Activities seaward of the coastal

3305construction control line which are

3310determined by the department not to cause a

3318measurable interference with the natural

3323functioning of the coastal system are exempt

3330from the requirements of subs ection (4). 4

333826 . Florida Administrative Code Rule 62B - 33.008 implements

3348section 161.053. Subsection (11) of the rule provides

3356specificity to the exemption provided by section 161.053(11)(b)

3364as follows:

3366Requests for the Department to determine

3372that the proposed activity is exempt from

3379permitting pursuant to the provisions of

3385Section 161.053(1 1 )(b), F.S., shall include,

3392at a minimum, a survey meeting the

3399requirements of Rule 62B - 33.0081, F.A.C.,

3406and the information requirements of

3411paragraphs 62B - 33.008(3) (l), (m), (n), (p),

3419(r), and subsection 62B - 33.008(5), F.A.C.

3426The Department recognizes that the

3431requirements specified above may not be

3437necessary to make an exemption

3442determination. In such cases, the applicant

3448shall, as part of the request for exemption ,

3456identify those requirements and state the

3462reason why they are inapplicable. The

3468Department shall waive requirements that do

3474not apply.

347627 . The "information requirements" of r ule 62B - 33.008

3487referenced in the quoted portion of the rule are as follows, in

3499relevant part:

3501(3) Any person desiring to obtain a permit

3509for construction seaward of the coastal

3515construction control line (CCCL) or 50 - foot

3523setback from the Department. . . shall

3530submit two (2) copies of a completed

3537application form to the Bureau . . . The

3546application shall contain the following

3551specific information:

3553* * *

3556(l) Two copies of a dimensioned site plan.

3564The drawings shall be signed and sealed by

3572an architect, engineer, landscape architect,

3577or professional surveyor and mapper (as

3583appro priate) licensed in the state of

3590Florida. The site plan shall include:

35961. The locations and exterior dimensions of

3603all proposed structures, including

3607foundations and other activities, and the

3613bearings and distances from the CCCL or 50 -

3622foot setback to th e seaward corners of the

3631foundations of any major structures or the

3638seaward limit of any coastal or shore -

3646protection structure.

36482. Dimensions and locations of the

3654foundation outlines of any existing

3659structures on adjacent properties and

3664distances from th e CCCL or 50 - foot setback

3674to the seaward corners of the foundations of

3682any existing structures or the seaward limit

3689of any coastal or shore - protection

3696structure. These measurements shall include

3701all structures that the applicant contends

3707have established a reasonably continuous and

3713uniform construction line for permits

3718requested under the provisions of s ections

3725161.052(2)(b) or 161.053(5)(b), F.S.

37293. Dimensions and locations of the

3735foundation outlines of any existing

3740structures on the subject property an d

3747distances from the CCCL or 50 - foot setback

3756to the seaward corners of the foundations of

3764any major structures or the seaward limit of

3772any coastal or shore - protection structure.

37794. The horizontal location of the erosion

3786control line (if one exists), any contour

3793lines corresponding to elevation 0.00, the

3799approximate contour of mean high water and

3806the seasonal high water, and the horizontal

3813location of the seaward line of vegetation

3820and outlines of existing natural vegetation.

38265. The horizontal location o f the CCCL or

3835the 50 - foot setback (if no CCCL is

3844established for the county in which the

3851property is located) for the full width of

3859the subject property, including the location

3865and full stamping of the two nearest

3872Department or published second order or

3878hi gher horizontal control points.

38836. The location and dimensions of the

3890property boundary, rights of way, and

3896easements, if any.

38997. The property owner and project name,

3906street address, scale, north arrow, sheet

3912number, and date of drawings.

39178. The loca tion of work limits,

3924construction fences, and dune features and

3930vegetation to be protected during

3935construction.

3936(m) Two copies of a dimensioned grading

3943plan. The drawings shall be signed and

3950sealed by an architect, engineer, landscape

3956architect, or prof essional surveyor and

3962mapper (as appropriate) licensed in the

3968State of Florida. The grading plan shall

3975include:

39761. Existing and proposed elevations,

3981contours and spot elevations.

39852. For any proposed excavation or fill:

3992a. A table of all permanent, temporary, and

4000net excavation and fill volumes seaward of

4007the CCCL;

4009b. The storage locations and description of

4016handling methods for all temporary

4021excavation and fill material; and

4026c. Soil and geotechnical data for beach

4033compatible imported or excavate d material

4039proposed for placement on the beach seaward

4046of a frontal dune or on the sandy beach.

4055(n) Two copies of dimensioned cross -

4062sections. The drawings shall be signed and

4069sealed by an architect, engineer, landscape

4075architect, or professional surveyo r and

4081mapper (as appropriate) licensed in the

4087State of Florida. The cross - sections shall

4095include a typical view from the mean high

4103water line to the CCCL depicting all

4110structures and building elevations, proposed

4115and existing grades, subgrade construction ,

4120excavation, fill, and elevations for any

4126proposed or existing rigid coastal

4131structures.

4132* * *

4135(p) Details, including engineering design

4140computations, for any proposed waste or

4146storm water discharge onto, over, under, or

4153across the be ach and dune system, such as

4162storm water runoff, swimming pool drainage,

4168well discharge, domestic waste systems, or

4174outfalls. . .

4177(r) Two copies of detailed planting plans,

4184including the location of proposed plants,

4190existing native vegetation, and plant s to be

4198removed. Plans shall include a plant list

4205with both scientific and common names.

4211* * *

4214(5) The staff shall require the applicant

4221to provide other site specific information

4227or calculations as is necessary for proper

4234evaluation of the applicat ion. The

4240dimensions for the plans referenced in this

4247section shall be submitted in U.S. Customary

4254System units. Structures shall be located

4260with distances measured perpendicular to the

4266control line, 50 - foot setback line, or the

4275mean high water line, as a ppropriate. All

4283elevations in this rule shall be referenced

4290to NAVD 88 (U.S. survey foot). Site,

4297grading, drainage, and landscape plans as

4303well as cross - sections shall be dra wn to a

4314scale no smaller than 1' ' = 40' in the

4324horizontal dimension.

432628 . Mr. M organ testified that a survey was not required

4338for this project because the plan was simply to replace an

4349existing walkover that was already on the ground. The existing

4359footprint would be maintained during construction . M r. Morgan

4369testified that because the project was being undertaken within

4378the confines of an existing structure, there was also no need

4389for a dimensioned site plan or a dimensioned grading plan.

439929 . Mr. Morgan testified that it was necessary to provide

4410dimensioned cross - sections to ensure that the renovated walkover

4420conformed exactly to the dimensions of the existing walkover.

4429Those cross - sections were provided to the Department.

443830 . Mr. Morgan testified that it was not necessary to

4449provide d etails, including engineering design computati ons, for

4458any proposed waste or storm water discharge onto or over the

4469beach and dune system because no impervious surface was being

4479added.

448031 . Mr. Morgan testified that it was not necessary to

4491submit planting plans because the dunes were not being

4500disturb ed.

450232 . Mr. Morgan testified that no other site - specific

4513information or calculations were necessary for the exemption

4521application "because it was all straightforward. There again,

4529it's an existing structure."

45333 3 . Tony McNeal, the administrator of the CC CL program,

4545testified as an expert in coastal engineering. Mr. McNeal also

4555addressed the criteria for obtaining an exemption pursuant to

4564r ule 62B - 33.008(11) , and concluded that none of the items listed

4577in subsection (11) were necessary for the Department to

4586determine that the project would not cause a measureable

4595interference with the natural functioning of the coastal system.

460434 . Petitioners offered no evidence that the requirements

4613of r ule 62B - 33.0081, paragraphs 62B - 33.008(3)(l), (m), (n), (p),

4626(r), or subsection 62B - 33.008(5) were necessary to make an

4637exemption determination pursuant to section 161.053(11)(b) . The

4645evidence demonstrated that the Applicants identif ied which of

4654those requirements were inapplicable and why, and that the

4663Department waived the inapplicable requirements. The

4669unchallenged testimony of Mr. Morgan and Mr. McNeal established

4678that the proposed project would not cause a measurable

4687interference with the natural functioning of the coastal system,

4696and that the criteria for the grant of an exemption from the

4708CCCL permitting requirements were met in this instance.

471635 . However, the finding that the proposed project would

4726meet the exemption criteria of section 161.053(11)(b) does not

4735end the inquiry. Petitioners contend that Applicants' project

4743is simply not the kind of project to which the section

4754161.053(11)(b) exemption provision is intended to apply.

4761Rather, this project was of the type contemplated by section

4771161.053(11)(a), which provides in relevant part:

4777The coastal construction control

4781requirements defined in subsection (1) and

4787the requirements of the erosion projections

4793in subsection (5) do not apply to any

4801modification, maintenance, or repair of any

4807existing structure within the limits of the

4814existing foundation which does not require,

4820involve, or include any additions to, or

4827repair or modification of, the existing

4833foundation of that structure. ...

483836. Petitioners contend that because it included

"4845additions to, or repair or modification of" the walkover

4854foundation, t he projec t should have been required to seek a CCCL

4867permit . Petitioners argue that the project as a whole

4877constituted a replacement of the existing walkover, not merely

4886repairs and maintenance . A s such , it was not the type of

4899activity that the Department should h ave consider ed for

4909exemption under section 161.053(11)(b) . Petitioners offered

4916documentation from the Department's files indicating that no

4924beach walkovers have been granted exemptions from the need to

4934obtain at least a field permit. 5 /

4942ey Hatch, a senior field inspector for the Bureau,

4951testified that he has never issued an exemption for a dune

4962walkover. He stated that he issues "quite a few" field permits

4973for walkover structures . These include permits for new

4982walkovers, additions, and repair and rebuilding.

498838. Mr. Hatch stated that aboveground repairs to walkovers

4997typically do not require permits. He testified that he has

5007issued field permits for such repairs in order to assist

5017homeowners in obtaining building permits from local authorities.

5025However, foundation modification such as digging holes,

5032replacing posts or modifying the structure outside its existing

5041dimens ions would require a permit.

504739 . Mr. McNeal testified that the Department regularly

5056issues permits for dune walkovers and has i ssued more than a

5068thousand such permits over the years. To his knowledge, the

5078Department has never granted an exemption under section

5086161.053(11)(b) for a walkover structure prior to the instant

5095case. Despite t his lack of precedent , Mr. McNeal , who has b een

5108the administrator in charge of the CCCL program since 1998,

5118expressed confidence that a permit was not required for this

5128project because the proposed activity would not cause a

5137measurable interference with the natural functioning of the

5145coastal system.

514740. Petitioners contend that the walkover was not

"5155repaired" nor was it the subject of "maintenance." They assert

5165that the walkover was replaced from the foundation up, and that

5176such replacement makes the Applicants' project ineligible for

5184exemption.

518541. Petitioners state that digging and setting of new

5194posts constituted modification of the foundation that required a

5203permit under section 161.053(11)(a) . The Department replies

5211that the exemption was not granted pursuant to section

5220161.053(11)(a) but u nder the standard set forth in section

5230161.053(11)(b). Therefore, Petitioners contentions regarding

5235the repair or replacement of the walkover's foundation are

5244irrelevant.

524542 . In similar fashion, t he Department dismisses

5254Petitioner's contention that the sistered posts violated Florida

5262Administrative Code rule 62B - 34.050(19)(b), which provides:

5270Elevated walkovers that provide access to

5276the beach shall meet the following design

5283criteria:

5284* * *

5287(b) The piles for the walkover structure

5294shall not be gre ater that [sic] four by four

5304inch posts and shall not be encased in

5312concrete.

531343 . Petitioners point out that by sistering the new four -

5325by - four posts to the existing four - by - four posts, Applicants

5339have created piles for the walkover structure that are now four

5350inches by eight inches, in excess of the maximum allowed by the

5362quoted rule. However, the Department points out that the quo ted

5373rule sets forth the conditions for general permits for

5382activities seaward of the CCCL , in particular for a new dune

5393walko ver structure . As such, the rule is irrelevant to a

5405consideration of whether the repairs to the already existing

5414walkover meet the specific criteria for an exemption pursuant to

5424section 161.053(11)(b) and rule 62B - 33.008(11).

543144 . Petitioners argue that a form of estoppel should apply

5442to the Department's grant of an exemption in this case because

5453of prior Department actions regarding the same walkover.

5461In 2005, one of the Applicants in the instant case, Paul Linger,

5473obtained a field permit to repair the stairs on the walkover and

5485to install a cantilevered bench seat. Controversy ensued when

5494both Ms. Pope and Mr. Pfrengle objected and insisted on removal

5505of the bench seat. The Department ultimately decided that

5514Mr. Linger had installed the bench seat far ther seaward than the

5526permit allowed , and that the seat extended beyond the easement

5536onto Ms. Pope's property. Ms. Pope also raised the question

5546whether Mr. Linger had the authority to obtain the permit

5556without her permission .

556045 . Jim Martinello, an en vironmental manager with the

5570Bureau, wrote as follows in a letter to Timothy J. Perry,

5581counsel for Ms. Pope, in a letter dated March 25, 2008:

5592In Mr. Perry's letter dated March 17, 2008,

5600he has advised Department staff that his

5607client, Amanda Pope, would b e amenable to

5615remove the cantilevered seating area from

5621her property. Pursuant to s ection

5627161.053(12)(c)(6), Florida Statutes, 6 / the

5633removal of any existing structures or debris

5640from the upland, provided there is no

5647excavation or disturbance to the existi ng

5654topography or beach/dune vegetation is

5659exempt from the Department's permitting

5664requirements. The installation of the

5669handrail would also be considered an exempt

5676activity; however, be advised that if

5682Ms. Pope proposes to install a wooden post

5690into the g round, then the activity would no

5699longer be exempt and a Department permit

5706would be required . If, after removal of the

5715cantilevered seating area and placement of

5721the handrail, no additional compliance

5726issues are identified by staff, the file on

5734this matte r will be closed.

5740Since the subject dune walkover is within an

5748easement, any future reconstruction or

5753repairs to the subject dune walkover must be

5761authorized with an administrative Coastal

5766Construction Control Line permit.

5770A Department field permit will not be

5777available for any future proposed activities

5783regarding the subject structure .

5788( e mphasis added) .

579346 . In a follow - up letter dated June 19, 2008, noting that

5807the bench seat had been removed and the Department's file on the

5819matter had been closed, Mr. Martinello reiterated:

5826As previously stated, since the subject dune

5833walkover is within an easement, any future

5840reconstruction or repairs to the subject

5846dune walkover must be authorized with an

5853administrative Coastal Construction Control

5857Line permit. A Department field permit will

5864not be available for any future proposed

5871activities regarding the subject structure.

587647 . With reason, Petitioners question why the Department's

5885representative cautioned Ms. Pope that the installation of a

5894single wooden post would trigger the need to obtain a permit

5905from the Department, but three years later the Department

5914determined that the installation of more than 30 posts on the

5925same walkover was exempt from permitting. The letters clearly

5934state that any future reconstru ction or repairs to this dune

5945walkover would require an administrative CCCL permit rather than

5954a mere field permit. However, three years later, no permit

5964whatever was required for an extensive renovation of the same

5974walkover.

597548 . At the hearing, Mr. Mari ntello testified that the

5986intent of his language regarding the need for a permit was

"5997informational." He wanted to advise the parties that they

6006could not obtain a field permit for reconstruction because the

6016walkover was within an easement. Mr. Martinello stated that the

6026Department had previously decided that it would be better to use

6037the administrative CCCL permitting process where an easement was

6046involved. The greater scrutiny of that process would insure

6055that the applicant is eligible to obtain the per mit.

606549 . Mr. Martinello stated that he defers to the opinion of

6077Mr. McNeal and the Bureau permitting staff as to whether an

6088activity qualifies for an exemption. He testified that he had

6098no intent for his letter to preclude anyone from ever obtaining

6109an e xemption to perform work on the walkover, and that in any

6122event he lacked the authority to make such a conclusive

6132pronouncement.

613350. The Department and Applicants strenuously argued that

6141any evidence not strictly addressing the criteria for exemption

6150unde r section 161.053(11)(b) is irrelevant to this proceeding.

6159In so arguing, they seek to avoid the threshold question of

6170whether section 161.053(11)(b) is the applicable provision for

6178repair or replacement of an existing structure such as a dune

6189walkover. T he t estimony and the statute itself lead to the

6201finding that the specific provisions of section 161.053(11)(a),

6209not the general exemption language of section 161.053(11)(b),

6217should have been applied to the "modification, maintenance, or

6226repair" of this ex isting structure.

623251. When Mr. Morgan testified to justify the lack of need

6243for various items listed in rule 62B - 33.008(11), he did so in

6256terms of section 161.053 (11)(a): it was unnecessary to provide a

6267ground survey , dimensioned site plan, dimensioned gr ading plan,

6276or other site specific information or calculations because the

6285project was staying within the confines of the existing

6294structure.

629552. The Department's own personnel made it clear that

6304their long practice has been to apply section 161.053 (1 1)(a) to

6316alterations of dune walkovers. Mr. Hatch testified that he has

6326never issued an exemption for a dune walkover , and that his

6337common practice is to issue field permits for dune walkovers.

6347In his experience, aboveground repairs to walkovers are exem pt

6357and foundation modification s require a permit. Mr. Hatch was

6367obviously referencing section 161.053 (11)(a) in stating these

6375criteria.

637653. Mr. Martinello's letters cautioning Ms. Pope not to

6385install a wooden post in the ground were plainly premised on the

6397section 161.053 (11)(a) limitation on changes to the foundation.

6406Mr. Martinello's testimony regarding his intent in writing the

6415letters was an unconvincing attempt to revise his views to

6425reflect the Department's new interpretation of the statute.

643354 . The Department's own expert, the head of its CCCL

6444permitting program, Mr. McNeal, conceded the novelty of granting

6453a section 161.053 (11)(b) exemption for a dune walkover. He

6463could point to over one thousand walkover permits but not a

6474single walkover ex emption during his long tenure at the Bureau.

648555. In summary, the Department misapplied the general

6493exemption criteria in section 161.053(11)(b) to a situation that

6502met the more specific criteria of section 161.053(11)(a).

6510Applicants should have be en req uired t o obtain either a permit

6523pursuant to section 161.053(11)(a) or a Department determination

6531that such a permit is not required because of the nature of the

6544work performed on the walkover .

655056. Finally, Petitioners raised the issue of whether

6558Applicant s had the authority to obtain an exemption from the

6569De partment. Petitioners contended that neither Millken's Replat

6577nor the Road Maintenance Agreement authorized Applicants to

6585effect repairs on the walkover without express permission of the

6595property owner s, Ms. Pope and Anastasia, Inc. The Department

6605argued that it has no obligation to investigate ownership rights

6615prior to issuing an exemption. Based on the foregoing finding

6625that the exemption was improvidently granted, there is no need

6635to address this i ssue at this time .

6644CONCLUSIONS OF LAW

664757 . The Division of Administrative Hearings has

6655jurisdiction over the parties to and subject matter of this

6665cause, pursuant to s ection 120.569 and s ubsection 120.57(1 ),

6676Florida Statutes (2012) .

668058 . Petitioners are t he owners of the property on which

6692the dune walkover is located . Petitioners ' substantial rights

6702or interests could reasonably be affected by the Department's

6711decision to grant an exemption to Applicants pursuant to section

6721161.053(11)(b), Florida Statute s. Petitioners therefore have

6728standing to initiate this proceeding. See St. Johns

6736Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. ,

674554 So. 3d 1051, 10 54 - 10 55 (Fla. 5th DCA 2011); Peace

6759River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co. ,

676818 So. 3d 1079, 1082 - 1084 (Fla. 2d DCA 2009); Palm Beach Cnty.

6782Envtl. Coal. v. Fla. Dep't of Envtl. Prot. , 14 So. 3d 1076, 1078

6795(Fla. 4th DCA 2009) .

680059. "[I] t is a well - recognized rule of statutory

6811construction that exceptions or provisos should be narr owly and

6821strictly construed." Samara Dev. Corp. v. Marlow , 556 So. 2d

68311097, 1100 (Fla. 1990). See also Robison v. Fix , 113 Fla. 151,

6843151 So. 512 (Fla. 1933); Pal - Mar Water M gmt. Dist. v. Martin

6857County , 384 So. 2d 232, 233 (Fla. 4th DCA 1980); Armstrong v .

6870City of Tampa , 112 So. 2d 293, 298 (Fla. 2d DCA 1959). As the

6884parties seeking an exemption determination pursuant to section

6892161.053(11)(b), Florida Statutes, Applicants bear the burden of

6900proving by a preponderance of the evidence that they have

6910establ ished their entitlement to the exemption.

691760 . Section 161.053(11) provides as follows, in relevant

6926part:

6927(11)(a) The coastal construction control

6932requirements defined in subsection (1) and

6938the requirements of the erosion projections

6944in subsection (5) do not apply to any

6952modification, maintenance, or repair of any

6958existing structure within the limits of the

6965existing foundation which does not require,

6971involve, or include any additions to, or

6978repair or modification of, the existing

6984foundation of that structure. Specifically

6989excluded from this exemption are seawalls or

6996other rigid coastal or shore protection

7002structures and any additions or enclosures

7008added, constructed, or installed below the

7014first dwelling floor or lowest deck of the

7022existing structure. The Florida Building

7027Commission may not adopt any rule having the

7035effect of limiting any exceptions or

7041exemptions con tained within this paragraph.

7047(b) Activities seaward of the coastal

7053construction control line which are

7058determined by the department not to cause a

7066measurable interference with the natural

7071functioning of the coastal system are exempt

7078from the requirements of subsection (4).

708461 . Paragraph (a) of subsection (11) names a specific

7094exclusion from CCCL permit requirements: " any modification,

7101maintenance, or repair of any existing structure within the

7110limits of the existing foundation ." It then goes on to stat e a

7124specific circumstance that takes an existing structure beyond

7132the exclusion and into the need for a CCCL permit: " any

7143additions to, or repair or modification of, the existing

7152foundation of that structure ." Paragraph (b) of subsection

7161(11), on the oth er hand, references the general, undefined term

"7172activities."

717362 . The facts do not admit of question that the dune

7185walkover at the end of Milliken Lane was an "existing

7195structure. " Any exemption from CCCL permitting for this

7203existing structure should hav e been accomplished through the

7212applicable paragraph (a). The Department has simply ignored the

7221provision that specifically references "existing structures"

7227such as the dune walkover in favor of consider ing the

7238Applicants' proposal as an "activity."

724363 . The "existing structures" substance of subsection

7251(11)(a) has been part of section 161.053 since 1975. 7 / The

"7263activities" exemption language was added to the statute in

72721998, without amendment of or reference to the "existing

7281structures" provision , save f or renumbering it . 8 / It is clear

7294that, whatever the term "activities" covers, the Legislature did

7303not intend that it subsume "existing structures " in the manner

7313proposed by the Department in this proceeding.

732064 . Even without regard to legislative intent, the rules

7330of statutory interpretation provide that the more specific

7338statutory provision controls over the more general. "[A]

7346specific statute covering a particular subject area always

7354controls over a statute covering the same and other subjects in

7365more general terms. The more specific statute is considered to

7375be an exception to the general terms of the more co m prehensive

7388statute." H eron at Destin West Beach & Bay Resort Condo. Ass'n,

7400Inc. v. O sprey at Destin West Beach & Bay Resort Condo. Ass'n,

7413Inc., et al. , 94 So. 3d 623, 2012 Fla. App. LEXIS 10604, *19

7426(Fla. 1st DCA 2012) ( quoting McKendry v. State , 641 So. 2d 45,

743946 (Fla. 1994) (internal citations omitted) ) .

744765 . Applicants failed to prove their entitlement to an

7457exemption under section 161.053(11)( b), Florida Statutes.

7464RECOMMENDATION

7465Based upon the foregoing Findings of Fact and Conclusions

7474of Law set forth herein, it is

7481RECOMMENDED that the Department of Environmental Protection

7488enter a final order denying the application of D aniel and Donna

7500Grace; J oseph and Linda Oftell; P aul and Debra Linger; A nn

7513P astore; T hompson and Dana Fillmer; J oseph and Dottie Scruggs;

7525S tephen Frey; and L indsey Bramlitt and Jacqueline Porter,

7535Trustees of the Land Trust dated May 1, 2005, for an exemption

7547from the requiremen ts of coastal construction control line

7556("CCCL") permitting pursuant to section 161.053(11)(b), Florida

7565Statutes, for their proposed activities on a dune walkover

7574structure seaward of the coastal construction control line at

7583the end of Milliken Lane in St. Johns County.

7592DONE AND ENTERED this 5 th day of October, 2012 , in

7603Tallahassee, Leon County, Florida.

7607S

7608LAWRENCE P. STEVENSON

7611Administrative Law Judge

7614Division of Administrative Hearings

7618The DeSoto Building

76211230 Apalach ee Parkway

7625Tallahassee, Florida 32399 - 3060

7630(850) 488 - 9675 SUNCOM 278 - 9675

7638Fax Filing (850) 921 - 6847

7644www.doah.state.fl.us

7645Filed with the Clerk of the

7651Division of Administrative Hearings

7655this 5 th day of October, 2012 .

7663ENDNOTES

76641 / The May 2, 2011, order may be found at :

7676http://www.doah.state.fl.us/DocDoc/2011/005313/11005313OGEN -

7678050112 - 15361236.pdf

76812 / The drawing shows the path of the walkway extending all the

7694way to the ocean, but the line indicating the "6' Wid th Walkway"

7707appears to extend only to the CCCL.

77143 / Donna Grace testified that Stephen Fry was not present at the

7727meeting but that he had given her his proxy to vote in favor of

7741the proposal.

77434 / Section 161.053(4) provides:

7748Exce pt in those areas where local zoning and

7757building codes have been established

7762pursuant to subsection (3), a permit to

7769alter, excavate, or construct on property

7775seaward of established coastal construction

7780control lines may be granted by the

7787department as fo llows:

7791(a) The department may authorize an

7797excavation or erection of a structure at any

7805coastal location as described in subsection

7811(1) upon receipt of an application from a

7819property or riparian owner and upon the

7826consideration of facts and circumstan ces,

7832including:

78331. Adequate engineering data concerning

7838shoreline stability and storm tides related

7844to shoreline topography;

78472. Design features of the proposed

7853structures or activities; and

78573. Potential effects of the location of the

7865structures or ac tivities, including

7870potential cumulative effects of proposed

7875structures or activities upon the beach - dune

7883system, which, in the opinion of the

7890department, clearly justify a permit.

7895(b) If in the immediate contiguous or

7902adjacent area a number of existing

7908structures have established a reasonably

7913continuous and uniform construction line

7918closer to the line of mean high water than

7927the foregoing, and if the existing

7933structures have not been unduly affected by

7940erosion, a proposed structure may be

7946permitted along such line on written

7952authorization from the department if the

7958structure is also approved by the

7964department. However, the department may not

7970contravene setback requirements or zoning or

7976building codes established by a county or

7983municipality which are equa l to, or more

7991strict than, the requirements provided in

7997this subsection. This paragraph does not

8003prohibit the department from requiring

8008structures to meet design and siting

8014criteria established in paragraph (a) or in

8021subsection (1) or subsection (2).

8026(c ) The department may condition the

8033nature, timing, and sequence of construction

8039of permitted activities to provide

8044protection to nesting sea turtles and

8050hatchlings and their habitat, pursuant to s.

8057379.2431 , and to native salt - resistant

8064vegetation and end angered plant communities.

8070(d) The department may require engineer

8076certifications as necessary to ensure the

8082adequacy of the design and construction of

8089permitted projects.

8091(e) The department shall limit the

8097construction of structures that interfere

8102wit h public access along the beach.

8109However, the department may require, as a

8116condition of granting permits, the provision

8122of alternative access if interference with

8128public access along the beach is

8134unavoidable. The width of the alternate

8140access may not be required to exceed the

8148width of the access that will be obstructed.

8156(f) The department may, as a condition of

8164granting a permit, require mitigation,

8169financial, or other assurances acceptable to

8175the department to ensure performance of

8181conditions of a perm it or enter into

8189contractual agreements to best assure

8194compliance with any permit conditions. The

8200department may also require notice of the

8207permit conditions required and the

8212contractual agreements entered into to be

8218filed in the public records of the cou nty in

8228which the permitted activity is located.

82345 / As the name suggests, a "field permit" may be issued by a

8248Bureau inspector at the site of the proposed activity, if the

8259inspector is satisfied that the activity is suitably minor and

8269will have only minor impacts. Fla. Admin. Code R. 62B -

828033.008(10). Mr. McNeal testified that in cases requiring a

8289greater level of scrutiny, the Bureau requires the applicant to

8299obtain an "administratively issued" permit from its main office

8308in Tallahassee. Mr. McNeal also testified that field engineers

8317are not allowed to issue permits in cases where the project is

8329involved in litigation.

83326 / This section was revised and renumbered as section

8342161.053(11)(c)(6) in 2010. See Ch. 2010 - 102, § 39, Laws of

8354Florida.

83557 / Chapter 75 - 87, section 2, Laws of Florida, added the

8368following subsection (8) to section 161.053:

8374The setback requirements defined in

8379subsection (1) shall not apply to any

8386modification, maintenance, or repair, to any

8392existing structure within limits of the

8398exist ing foundation, which does not require,

8405involve, or include, any additions to,

8411repair or modification of, the existing

8417foundation of that structure. Specifically

8422excluded from this exemption are seawalls

8428and any additions or enclosures added,

8434constructed, or installed below the first

8440dwelling floor or lowest deck of the

8447existing structure.

84498 / See Ch. 98 - 131, § 2, Laws of Florida.

8461COPIES FURNISHED :

8464Timothy Joseph Perry, Esquire

8468Oertel, Fernandez, Bryant and Atkinson, P.A.

8474Post Office Box 1110

8478Tallaha ssee, Florida 32302

8482tperry@ohfc.com

8483Brynna J. Ross, Esquire

8487Department of Environmental Protection

8491Mail Station 35

84943900 Commonwealth Boulevard

8497Tallahassee, Florida 32399 - 3000

8502brynna.ross@dep.state.fl.us

8503Alysson Hall Stevens, Esquire

8507Mowrey Law Firm, P.A.

8511515 North Adams Street

8515Tallahassee, Florida 32301

8518astevens@mowreylaw.com

8519Kenneth Pfrengle

85213884 Tampa Road

8524Oldsmar, Florida 34677

8527Daniel A. Mowrey, Esquire

8531Mowrey, Shoemaker and Beardsley

85353940 Lewis Speedway, Suite 2103

8540St. Augustine, Florida 320 84

8545Lea Crandall, Agency Clerk

8549Department of Environmental Protection

8553Douglas Building, Mail Station 35

85583900 Commonwealth Boulevard

8561Tallahassee, Florida 32399 - 3000

8566lea.crandall@dep.state.fl.us

8567Tom Beaso n, General Counsel

8572Department of Environmental Protection

8576Douglas Building, Mail Station 35

85813900 Commonwealth Boulevard

8584Tallahassee, Florida 32399 - 3000

8589tom.beason@dep.state.fl.us

8590Herschel T. Vi nyard, Jr., Secretary

8596Department of Environmental Protection

8600Douglas Building

86023900 Commonwealth Boulevard

8605Tallahassee, Florida 32399 - 3000

8610herschel.vinyard@dep.state.fl.us

8611NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

8617All parties have the right to submit written exceptions within

862710 days from the date of this Recommended Order. Any exceptions

8638to this Recommended Order should be filed with the agency that

8649will issue the Final Order in this case.

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Proceedings
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Date: 12/21/2012
Proceedings: Agency Final Order
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Date: 12/21/2012
Proceedings: Petitioners' Responses to the Respondents'/Applicants' Exceptions to the Recommended Order filed.
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Date: 12/21/2012
Proceedings: Petitioners' Responses to the Department of Environmental Protection's Exceptions to the Recommended Order filed.
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Date: 12/21/2012
Proceedings: Respondent, Department of Environmental Protection's Responses to Petitioners' Exceptions filed.
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Date: 12/21/2012
Proceedings: Florida Department of Environmental Protection's Exceptions to Recommended Order filed.
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Date: 12/21/2012
Proceedings: Respondents' Exceptions to the Recommended Order filed.
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Date: 12/21/2012
Proceedings: Petitioners' Exceptions to the Recommended Order filed.
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Date: 12/21/2012
Proceedings: Agency Final Order filed.
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Date: 10/22/2012
Proceedings: Notice of Appearance (Rhonda Morris) filed.
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Date: 10/05/2012
Proceedings: Recommended Order
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Date: 10/05/2012
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
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Date: 10/05/2012
Proceedings: Recommended Order (hearing held May 24, 2012). CASE CLOSED.
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Date: 08/30/2012
Proceedings: Designation of E-Mail Addresses filed.
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Date: 08/23/2012
Proceedings: Petitioners' Response to the Department of Environmental Protection's Motion to Strike Portions of Petitioners' Proposed Recommended Orders filed.
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Date: 08/16/2012
Proceedings: Respondents' Motion to Strike Portions of Petitioners' Proposed Recommended Order filed.
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Date: 08/14/2012
Proceedings: Respondent, Applicants', Proposed Recommended Order filed.
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Date: 08/13/2012
Proceedings: Department's Proposed Recommended Order filed.
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Date: 08/13/2012
Proceedings: Petitioners' Proposed Recommended Order filed.
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Date: 07/26/2012
Proceedings: Order Granting Extension of Time.
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Date: 07/26/2012
Proceedings: Second Motion for an Extension of Time to File Proposed Recommended Orders filed.
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Date: 07/17/2012
Proceedings: Order Granting Extension of Time.
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Date: 07/16/2012
Proceedings: Motion for an Extension of Time to File Proposed Recommended Order filed.
Date: 07/05/2012
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 07/05/2012
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 07/03/2012
Proceedings: Transcript of Proceedings Volume II (not available for viewing) filed.
Date: 07/03/2012
Proceedings: Transcript of Proceedings Volume I (not available for viewing) filed.
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Date: 07/02/2012
Proceedings: Order Granting Extension of Time.
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Date: 06/27/2012
Proceedings: Motion for Extension of Time to File Proposed Recommended Orders filed.
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Date: 06/01/2012
Proceedings: Order Setting Deadline for Filing Proposed Recommended Orders.
Date: 05/24/2012
Proceedings: CASE STATUS: Hearing Held.
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Date: 05/08/2012
Proceedings: Petitioners' Response to the Department of Environmental Protection's Motion to Strike filed.
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Date: 05/03/2012
Proceedings: Department of Environmental Protection's Response to Petitioners' Motion for Attorney's Fees Pursuant to Section 57.105, Florida Statutes, Against the Department filed.
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Date: 05/03/2012
Proceedings: Department's Amendment to Motion to Strike Portions of Petitioners' Brief on Standing, Timeliness, and Waiver filed.
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Date: 05/02/2012
Proceedings: Notice of Hearing (hearing set for May 24, 2012; 9:00 a.m.; Jacksonville, FL).
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Date: 05/02/2012
Proceedings: Order Denying Applicants` Motion to Dismiss.
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Date: 05/01/2012
Proceedings: Department's Motion to Strike Portion of Petitioners' Brief on Standing, Timeliness, and Waiver (filed in Case No. 11-006248).
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Date: 05/01/2012
Proceedings: Department's Motion to Strike Portion of Petitioners' Brief on Standing, Timeliness, and Waiver filed.
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Date: 04/27/2012
Proceedings: Respondent/Applicants' Memorandum of Law Regarding Timeliness and Waiver filed.
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Date: 04/27/2012
Proceedings: Department's Memorandum on Waiver filed.
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Date: 04/27/2012
Proceedings: Petitioners' Brief on Standing, Timeliness and Waiver filed.
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Date: 04/26/2012
Proceedings: Petitioners' Notice of Filing filed.
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Date: 04/24/2012
Proceedings: Notice of Availability filed.
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Date: 04/20/2012
Proceedings: Notice of Availability filed.
Date: 04/17/2012
Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
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Date: 04/16/2012
Proceedings: Order Granting Petitioners` Motion to Seperately Address Attorneys` Fee Issues.
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Date: 04/16/2012
Proceedings: Order Granting Petitioners` Motion for Leave for Telephonic Witness Appearance.
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Date: 04/16/2012
Proceedings: Respondent/Applicants' Motion for Attorneys' Fees, Costs, and Expenses filed.
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Date: 04/16/2012
Proceedings: Petitioners' Response in Opposition to Motions to Quash filed.
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Date: 04/13/2012
Proceedings: Petitioners' Request for Telephonic Status Conference filed.
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Date: 04/13/2012
Proceedings: Respondent/Applicants Response to Petitioners' Motion for Leave for Telephonic Witness Appearance at the Hearing filed.
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Date: 04/13/2012
Proceedings: Motion to Quash (Jim Martinello) filed.
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Date: 04/13/2012
Proceedings: Motion to Quash (Larry Teich) filed.
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Date: 04/13/2012
Proceedings: Motion to Quash (John "Fritz" Wettstein) filed.
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Date: 04/12/2012
Proceedings: Joint Prehearing Stipulation filed.
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Date: 04/12/2012
Proceedings: Petitioners' Motion for Leave for Telephonic Witness Appearance at the Hearing filed.
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Date: 04/12/2012
Proceedings: Petitioners' Motion for Leave to Separately Address Issues of the Amount of the Attorneys' Fee Award filed.
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Date: 04/10/2012
Proceedings: Respondent, Applicants', Response to Petitioners' Motion for Attorney's Fees, Costs, and Expenses filed.
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Date: 04/06/2012
Proceedings: Department of Environmental Protection's Response to Petitioners' Motion for Attorney's Fees Pursuant to Section 120.569(2)(E), Florida Statutes Against the Department filed.
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Date: 04/05/2012
Proceedings: Order Granting Joint Motion to Reschedule Deadline.
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Date: 04/05/2012
Proceedings: Order Granting Department of Environmental Protection's Request for Extension.
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Date: 04/04/2012
Proceedings: Motion to Join Respondent, Department of Environmental Protection's, Request for an Extension of Time to Respond to Petitioner's Motion for Attorney's Fees Pursuant to 120.569(2)(e), Florida Statutes filed.
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Date: 04/04/2012
Proceedings: Respondents' Notice of Service of Response to Petitioner, Amanda Pope's, Third Set of Interrogatories to Respondent/Applicants filed.
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Date: 04/04/2012
Proceedings: Respondents' Response to Petitioner's Second Request for Production of Documents to Respondent/Applicants filed.
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Date: 04/04/2012
Proceedings: Notice of Appearance as Co-Counsel (Daniel Mowrey) filed.
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Date: 04/03/2012
Proceedings: Department of Environmental Protection's Request for an Extension of Time to Respond to Petitioners' Motion for Attorney's Fees Pursuant to Section 120.569(2)(E), Florida Statutes Against the Department filed.
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Date: 04/03/2012
Proceedings: Amended Notice of Hearing (hearing set for April 17, 2012; 9:00 a.m.; Jacksonville, FL; amended as to location).
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Date: 03/30/2012
Proceedings: Joint Motion to Reschedule the Deadline for Filing the Joint Prehearing Stipulation filed.
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Date: 03/29/2012
Proceedings: Department of Environmental Protection's Responses to Petitioner Amanda Pope's Second Set of Production filed.
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Date: 03/29/2012
Proceedings: Notice and Certificate of Service of DEP'S Response to Petitioner, Amanda Pope's Second Set of Interrogatories filed.
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Date: 03/27/2012
Proceedings: Petitioners' Notice of Filing filed.
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Date: 03/27/2012
Proceedings: Motion for Attorney's Fees, Costs and Expenses Pursuant to Section 120.569(2)(E), Florida Statues filed.
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Date: 03/13/2012
Proceedings: Petitioners' Amended Preliminary Witness List filed.
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Date: 03/13/2012
Proceedings: Notice of Appearance (Timothy Perry) filed.
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Date: 02/29/2012
Proceedings: Petitioner, Amanda Pope's, Notice of Service of Second Set of Interrogatories and Second Request for Production of Documents to Respondent, Florida Department of Environmental Protection filed.
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Date: 02/29/2012
Proceedings: Petitioner, Amanda Pope's, Notice of Service of Third Set of Interrogatories and Second Request for Production of Documents to Respondent/Applicants filed.
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Date: 01/20/2012
Proceedings: Order of Pre-hearing Instructions.
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Date: 01/20/2012
Proceedings: Order (enclosing rules regarding qualified representatives).
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Date: 01/20/2012
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for April 17, 2012; 9:00 a.m.; Jacksonville, FL).
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Date: 01/19/2012
Proceedings: Respondents' Response to Anastasia Inc.'s Request for Continuance filed.
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Date: 01/19/2012
Proceedings: Petitioner, Amanda Pope's, Response in Support of Continuance filed.
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Date: 01/19/2012
Proceedings: Department of Environmental Protection's Response to Anastasia Inc.'s Request to Reschedule Hearing filed.
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Date: 01/17/2012
Proceedings: Petitioner, Amanda Pope's, Responses and Objections to Respondents' First Request for Admissions filed.
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Date: 01/17/2012
Proceedings: Notice of Service of Petitioner, Amanda Pope's, Objections and Responses to Respondents' First Set of Interrogatories and First Request for Admissions filed.
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Date: 01/13/2012
Proceedings: Respondents' Amended Preliminary Witness Disclosure filed.
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Date: 01/12/2012
Proceedings: Petitioners' Amended Preliminary Witness List filed.
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Date: 01/12/2012
Proceedings: Notice of Ex-parte Communication.
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Date: 01/11/2012
Proceedings: Letter to DOAH from K. Pfrengle requesting to reschedule hearing filed.
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Date: 01/04/2012
Proceedings: Petitioner, Amanda Pope's, Notice of Service of Second Set of Interrogatories to Respondent/Applicants filed.
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Date: 12/22/2011
Proceedings: Respondent's Notice of Service of Response to Petitioner's First Set of Interrogatories filed.
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Date: 12/22/2011
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for February 16, 2012; 9:00 a.m.; Jacksonville, FL).
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Date: 12/22/2011
Proceedings: Motion for Continuance of Hearing and Extension of Time (filed in Case No. 11-006248).
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Date: 12/22/2011
Proceedings: Motion for Continuance of Hearing and Extension of Time filed.
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Date: 12/20/2011
Proceedings: Order of Consolidation (DOAH Case Nos. 11-5313 and 11-6248)).
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Date: 12/19/2011
Proceedings: Department of Environmental Protection's Response to Petitioner Amanda Pope Request for Production of Documents filed.
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Date: 12/19/2011
Proceedings: Petitioner's Response to Motion to Consolidate filed.
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Date: 12/19/2011
Proceedings: Petitioner's Notice of Taking Deposition (of R. Powell) filed.
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Date: 12/19/2011
Proceedings: Amended Notice of Taking Depositions (of R. Powell) filed.
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Date: 12/16/2011
Proceedings: Notice of Taking Depositions (of R. Powell) filed.
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Date: 12/16/2011
Proceedings: Respondent's Notice of Service of First Request for Admissions to Petitioner, Amanda Pope filed.
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Date: 12/16/2011
Proceedings: Notice and Certificate of Service of Respondent DEP's Response to Petitioner Amanda Pope First Set of Interrogatories filed.
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Date: 12/15/2011
Proceedings: Petitioner's Notice of Taking Deposition (of J. Martinello) filed.
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Date: 12/14/2011
Proceedings: Petitioner's Notice of Taking Deposition (of A. McNeal) filed.
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Date: 12/12/2011
Proceedings: Motion to Consolidate filed.
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Date: 12/05/2011
Proceedings: Order on Motion in Limine.
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Date: 12/02/2011
Proceedings: Petitioner's Response in Opposition to Motion in Limine filed.
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Date: 12/01/2011
Proceedings: Respondents' Witness Disclosure filed.
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Date: 12/01/2011
Proceedings: Petitioner's Preliminary Witness List filed.
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Date: 12/01/2011
Proceedings: Department of Environmental Protection's Witness Disclosure filed.
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Date: 11/30/2011
Proceedings: Respondents' Notice of Service of Responents' First Set of Interrogatories to Petitioner, Amanda Pope filed.
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Date: 11/28/2011
Proceedings: Order Granting Extension of Time.
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Date: 11/23/2011
Proceedings: Petitioner's Motion for Extension of Time to Respond to Respondent's Motion in Limine filed.
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Date: 11/21/2011
Proceedings: Department of Environmental Protection's Motion in Limine filed.
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Date: 11/21/2011
Proceedings: Order Amending Caption.
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Date: 11/21/2011
Proceedings: Respondent, Daniel A. Mowrey's, Motion to Amend Caption filed.
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Date: 11/18/2011
Proceedings: Petitioner's Notice of Service of First Interrogatories and Request for Production of Documents to Respondent, Florida Department of Environmental Protection filed.
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Date: 11/18/2011
Proceedings: Petitioner's Notice of Service of First Interrogatories and Request for Production of Documents to Respondent, Daniel A. Mowrey filed.
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Date: 11/03/2011
Proceedings: Order of Pre-hearing Instructions.
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Date: 11/03/2011
Proceedings: Notice of Hearing by Video Teleconference (hearing set for January 5, 2012; 9:00 a.m.; Jacksonville and Tallahassee, FL).
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Date: 11/02/2011
Proceedings: Respondent, Daniel A. Mowrey's, Notice of Filing Client List filed.
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Date: 11/02/2011
Proceedings: Response to Initial Order filed.
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Date: 10/31/2011
Proceedings: Notice of Filing filed.
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Date: 10/26/2011
Proceedings: Notice of Appearance (Alysson Stevens) filed.
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Date: 10/25/2011
Proceedings: Joint Response to Initial Order filed.
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Date: 10/18/2011
Proceedings: Initial Order.
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Date: 10/14/2011
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.
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Date: 10/14/2011
Proceedings: Petition for Formal Administrative Hearing filed.
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Date: 10/14/2011
Proceedings: Agency action letter filed.

Case Information

Judge:
LAWRENCE P. STEVENSON
Date Filed:
10/14/2011
Date Assignment:
04/02/2012
Last Docket Entry:
12/21/2012
Location:
Jay, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (11):

Related Florida Rule(s) (2):