96-001955 Scout Development Corporation vs. Nansep3 Corporation And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, August 6, 1997.

Summary: Permit for dune walkover properly issued where no adverse impact to dune system as a whole or to adjacent properties shown to be likely.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOUT DEVELOPMENT CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 96-1955

)

NANSEP3 CORPORATION and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

___________________________________)

)

700 OCEAN DRIVE HOMEOWNERS' )

ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 96-1956

)

NANSEP3 CORPORATION and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on April 21, 1997, in West Palm Beach,

Florida.

APPEARANCES

For Petitioners: Alfred A. LaSorte, Jr., Esquire

United National Bank Tower

Suite 1000

1645 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33401

For Respondent

Nansep3 Corporation: Patrick O'Hara, Esquire

324 Datura Street

Suite 100

West Palm Beach, Florida 33401

For Respondent Department

of Environmental Protection:

Jeffrey Brown, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue presented is whether Respondent Nansep3

Corporation should be issued a permit to construct a dune

walkover.

PRELIMINARY STATEMENT

Respondent Department of Environmental Protection issued to

Respondent Nansep3 Corporation a permit to construct a dune

walkover, and Petitioners timely requested an evidentiary hearing

to contest the issuance of that permit. This cause was

thereafter transferred to the Division of Administrative Hearings

to conduct that evidentiary proceeding.

Respondent Nansep3 Corporation presented the testimony of

Susan Kenney, Clinton "Red" E. Taylor, Robert Barron, Dallas

Durrance, Cory S. Cross, and Rodney Sarkela. Petitioners

presented the testimony of Srinivas Tammisetti, James Molter, and

Erik J. Olsen. Respondent Department of Environmental Protection

presented the testimony of Rodney Sarkela and Barry Manson-Hing.

Additionally, Joint Exhibits numbered 1-44 were admitted in

evidence.

The two-volume transcript of the proceeding was filed post

hearing, and all parties filed proposed recommended orders.

Those documents have been considered in the entry of this

Recommended Order.

FINDINGS OF FACT

1. The subject property is an approximately three-acre,

oceanfront site located within the Town of Juno Beach.

Respondent Nansep3 Corporation purchased the site with an

existing site plan approved by the Town. The approved site plan

included a public access easement running parallel to the south

property boundary from the public road to the beach. Nansep

constructed a 59-unit condominium high-rise on the property.

2. Petitioners Scout Development Corporation and 700 Ocean

Drive Homeowners' Association, Inc., are the developer and

homeowners' association, respectively, of a ten-unit beachfront

residential community located immediately south of the subject

site. The units therein consist of large, oceanfront, zero-lot-

line, single-family residences. As of the final hearing in this

cause, Scout had sold the eight southernmost units and was

holding the two northernmost units for sale.

3. The wall surrounding Petitioners' northernmost unit is

located within approximately two feet of Petitioner's north

property line, which is the same property line as Nansep's south

property line. Nansep's public access easement is 10-feet wide

and runs along that common property line. The subject dune

walkover is located four feet from that property line.

4. The Town of Juno Beach provides an incentive to

developers for the construction of public access dune walkovers.

Developers can obtain an additional two dwelling units per acre

if they agree to convey a ten-feet wide access easement to the

public and construct a six-feet wide dune walkover with

landscaping, irrigation, and lighting. That additional "bonus"

was included in the approved site plan in place when Nansep

purchased the subject site.

5. Nansep's agreement with the Tow n required that the dune

walkover extend straight off the sidewalk leading to it for

security reasons, i.e. , in order to make it easier for the Town

to patrol the public access easement. In addition, Nansep had

filed a declaration of condominium with the State of Florida

depicting the dune walkover and sidewalk located within the

public access easement and running in a straight line from the

public road fronting the property to the beach. Nansep was

concerned that a relocation of the walkover could be a material

change that could enable purchasers to void their purchase

agreements or could enable the Town to vacate its site plan

approval.

6. On November 10, 1995, Nansep submitted to the Department

an application for a permit to construct a dune walkover seaward

of the coastal construction control line. Also submitted was a

topographic survey of the subject property depicting the location

of the public access easement at the south property line where

the walkover structure would be located and its relationship to

existing seagrapes. The architectural drawings also depicted the

location of the dune walkover in relation to Nansep's south

property line and showed the dune walkover to be six-feet wide

with eight-inch diameter pilings.

7. On February 1, 1996, the Department issued to Nansep

Permit PB-536 and a Notice to Proceed. Those documents were

accompanied by a transmittal letter advising that substantially

affected persons could challenge the issuance of that Permit

within 21 days and that if Nansep proceeded with construction

within that 21-day period, it would be at Nansep's own risk.

8. Standard Permit Condition numbered (1)(a) required

Nansep to carry out the construction activities in accordance

with the plans and specifications approved by the Department and

prohibited any modification thereof. Special Permit Condition

numbered 2 provided that:

The optimum siting of the walkover structure shall

be determined by the staff representative of the

Bureau of Beaches and Coastal Systems during the

preconstruction [sic] conference to provide maximum

protection to the existing dune topography and

vegetation located on the site.

9. There is a conflict in the documents issued by the

Department that day in that the Special Permit Conditions

describe a four-feet wide structure on four-inch-by-four-inch

pilings whereas the Notice to Proceed describes a six-feet wide

structure. However, the plans approved by the Department clearly

describe a six-feet wide structure on eight-inch diameter

pilings. Further, the Town requires a six-feet wide structure

for public access walkovers.

10. When there is a conflict between the plans that are

approved and a permit condition, the plans are deemed to prevail

over the permit condition.

11. The fact that the structure is wider and on larger

pilings than described in the permit does not remove the

structure from the definition of a "minor structure" under the

Department's rules and the applicable statutes. By definition, a

minor structure is one that is expendable during high frequency

storm events. Nansep's dune walkover meets that definition.

12. On February 19, 1996, Petitioners filed petitions

challenging Nansep's permit. Petitioners alleged impacts to

seagrapes as well as erosion impacts resulting from the

structure. Petitioners also complain that they were not invited

to participate in the pre-construction meeting and that there is

a conflict in the permit as to whether a four-feet wide or six-

feet wide walkover was permitted.

13. Nansep constructed its walkover notwithstanding the

petitions for administrative hearing. Its architect certified

compliance with the approved plans by letter dated March 6, 1996.

14. Seagrapes are one of approximately 100 to 150 species

that can constitute a coastal dune community. Their root mass

helps resist erosion, although research shows that seagrapes are

less resistant than other plants installed on the foredune at the

project site. The seagrape and other woody, shrubby plant

species moderate the impact of wind and salt spray to other

species upland of the coastal community.

15. Dune walkovers confer a benefit to dune vegetation by

protecting plants from pedestrian traffic. They also protect the

dune itself by controlling foot traffic which erodes the dune.

16. The permit application showed a semi-circular area of

seagrapes on the southeast corner of the project site and in the

footprint of the proposed walkover, extending throughout the

width of the access easement. The depiction regarding the extent

of seagrapes accurately reflected existing site conditions.

Thus, in order to relocate the walkover in such a way as to avoid

the seagrapes, it would be necessary to place the walkover

outside of the public access easement.

17. As a matter of routine, the Department would not, for

the purpose of avoiding impacts to seagrapes, require the

developer to re-negotiate a development agreement with a local

government or to locate a dune walkover outside of an access

easement required by an approved site plan.

18. Before construction, virtually all of the seagrape

component of the project area was contaminated by invasive exotic

species.

19. Nansep installed seagrapes, sea oats, and other grasses

along the dune and the dune face under a mitigation plan approved

by the Town of Juno Beach. The seagrape hedge Nansep planted

along the top of the dune runs from the north end of the property

to the south end. The overall dune vegetation community was

enhanced and is now more substantial than before construction

began.

20. It is common practice to place dune walkover structures

in areas where seagrapes must be removed to accommodate the

structure. Nansep removed only the seagrapes directly in the

path of the walkover structure. The impact of the removal on the

seagrapes was a minor impact. Further, the dune vegetation

community, as a whole, was not damaged or harmed as a result of

the construction.

21. Petitioners fear that their property will be impacted

by excessive erosion upon the occurrence of certain storm events

because the walkover is located within four feet of their north

property line. Public access walkovers in the Town of Juno Beach

which access the beach across private property run along property

lines and have a four-feet wide landscape strip from the property

line to where the dune walkover starts.

22. Scour erosion refers to the interaction of the waves

and currents with pilings and the beach surface. Under a rule-

of-thumb method commonly relied upon in the field of coastal

engineering, the maximum vertical extent of scour erosion is

approximately twice the diameter of the piling, and the maximum

horizontal extent of the erosion is approximately three times the

diameter of the piling.

23. Applying this method, the maximum horizontal extent of

scour erosion for the dune walkover can be expected to be 24 to

30 inches out from the pilings, and the maximum vertical extent

of scour erosion can be expected to be around 18 inches below

grade. Accordingly, the maximum extent of the scour erosion

would not be likely to encroach upon the property of Petitioners

since there is four feet between the walkover and Petitioners'

property line except where the walkover juts out for benches at

the toe of the dune, east of the coastal construction control

line.

24. Notwithstanding severe storms last fall, no erosion has

resulted from the structure. Instead, accretion, or build-up of

sand, has occurred. Further, the localized scour erosion cannot

be expected to adversely impact the dune vegetation community or

the dune system as a whole.

25. The purpose of a pre-construction conference is for the

Department to review the permit conditions with the permit holder

and to verify the location of the coastal construction control

line and the location of the structure. Although other persons

are permitted to attend a pre-construction conference, the

Department does not require that adjoining property owners be

invited to attend. A Department memorandum opines that pre-

construction meetings are necessary for the approval of "major

structures" and shore protection projects. There does not appear

to be such a requirement for "minor structures" such as the

subject dune walkover.

26. The Department's field engineer misread Nansep's permit

and did not notice that the permit called for a pre-construction

conference. Nevertheless, he met with Nansep's representatives

on-site on February 14, 1996, during the construction of the

walkover. He determined that the actual siting of the dune

walkover is the optimum siting to provide maximum protection to

the existing dune topography and vegetation on the site.

27. Other than the directive in the permit to determine the

best siting with respect to existing dune topography and to dune

vegetation, the terms of the permit stated no other matters to be

considered in the pre-construction meeting. Nothing more would

have been accomplished in an actual pre-construction meeting than

occurred in the on-site visit by the Department's field engineer

during construction.

28. The location of the walkover was clearly depicted in

the plans which the Department approved in issuing the permit.

Even though the permit called for a pre-construction conference

at which the optimum siting for the walkover would be selected,

no permit condition authorized the Department's representative to

direct a material change to the project, such as requiring the

relocation of the walkover to outside of the existing public

access easement.

29. Comparing the benefits conferred on the dune system by

protection from pedestrian traffic with any negative impacts, the

benefits conferred offset any negative impacts to the dune

system.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties hereto and the subject matter

hereof. Sections 120.569 and 120.57(1), Florida Statutes.

31. Petitioners assert issues as to whether the walkover

structure was constructed in full compliance with the permit.

However, this proceeding is limited to the issues involved in the

issuance of the permit itself. Whether Nansep violated permit

conditions as to the height of the structure is a matter for the

Department to consider for any enforcement proceeding, not in

this proceeding to determine whether a permit should be issued.

32. The law is well settled that a permit applicant bears

the burden of proving entitlement to the permit sought. Nansep

has met its burden.

33. Section 161.053, Florida Statutes, sets forth standards

for the establishment of coastal construction control lines as

well as activities that may be permitted seaward of that line.

Part of the legislative intent is instructive. Section

161.053(1)(a), Florida Statutes, provides for the protection of

the beaches and coastal barrier dunes in this State from:

. . . construction which can jeopardize the

stability of the beach-dune system, accelerate

erosion, provide inadequate protection to upland

structures, endanger adjacent properties, or

interfere with public beach access.

34. The statute's focus is on protection of the beach-dune

system, not the scour erosion which can occur around a piling.

Further, the statute focuses on endangerment of adjacent

properties, not inconvenience to their owners.

35. The Department has promulgated rules to implement that

statute. Rule 62B-33.002(23), Florida Administrative Code,

quantifies construction impacts and provides that adverse impacts

are those which interfere with the natural functioning of the

system, a consideration not present in this cause. That Rule

also defines "other impacts" as those which may result in damage

to existing structures or property or interference with lateral

beach access. No damage to existing structures has been alleged,

and the possible damage of scour erosion around the pilings on

Nansep's property which may, or may not, extend onto Petitioners'

property by several inches cannot be considered significant

enough to constitute an adverse impact.

36. Under Rule 62B-33.005(10), Florida Administrative

Code, construction is required to be located in previously-

disturbed areas when practicable. The only way Nansep could have

avoided the existing seagrapes would have been to site the

walkover at some place other than the public access easement that

had been approved by the local government. Petitioners propose

an alignment which would require the walkover to turn at a right-

angle, move outside the public access easement, run along the

swimming pool wall, turn at another right-angle, and then proceed

across the dune to the beach. It is not "practicable" to require

Nansep to vacate the approved site plan and re-design its project

to move the walkover out of the public access easement or to

require Nansep to convey more of its private property to the

public.

37. The Department did commit a procedural irregularity in

the processing of this permit application either by requiring a

pre-construction conference or by not conducting one when it was

required by the permit conditions. However, the record in this

cause reveals that the Department's field engineer would have

approved the siting of the walkover had he conducted his on-site

visit before construction rather than during.

38. Petitioners assert that Nansep graded the dune top for

the walkover but the plans Nansep submitted to the Department and

the Department's permit did not contemplate such excavation.

Yet, the evidence reveals that the one to two feet of excavation

was required for access by handicapped persons and, if asked, the

Department would have allowed it.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED THAT a final order be entered granting Nansep's

application and issuing Permit PB-536 to Respondent Nansep3

Corporation.

DONE AND ENTERED this 6th day of August, 1997, at

Tallahassee, Leon County, Florida.

___________________________________

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-30 60

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of August, 1997.

COPIES FURNISHED:

Alfred A. LaSorte, Jr., Esquire

United National Bank Tower

Suite 1000

1645 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33401

Patrick O'Hara, Esquire

324 Datura Street

Suite 100

West Palm Beach, Florida 33401

Jeffrey Brown, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Office of the General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Office of the General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.