97-000294 Peter Broom, Jeremy R. Geffen, And Duane Jackson vs. Town Of Indian River Shores And Department Of Environmental Protection Status: Closed Recommended Order on Monday, December 8, 1997.

Summary: The applicant met all statutory and rule requirements for the coastal construction control line (CCCL) permit. Recommend the CCCL permit be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER BROOM, JEREMY R. GEFFEN , )

and DUANE JACKSON, )

)

Petitioners , )

)

vs. ) Case No. 97-0294

)

TOWN OF INDIAN RIVER SHORES , )

and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

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

on November 13-14, 1997, at Vero Beach, Florida, before Errol H.

Powell, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioners : Theodore W. Herzog, Esquire

209 Duval Street

Key West, Florida 33040

For Respondents : Chester Clem, Esquire

Town of Indian River Shores

Univest Building, Suite 501

2770 Indian River Boulevard

Vero Beach, Florida 32960-4278

Thomas I. Mayton, Jr., Esquire

Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue for determination is whether the Town of Indian

River Shores is entitled to a coastal construction control line

permit to construct a beach access seaward of the coastal

construction control line in Indian River Shores, Florida.

PRELIMINARY STATEMENT

On July 24, 1996, the Town of Indian River Shores (Town)

filed an application with the Department of Environmental

Protection (DEP) for a permit to construct a beach access ramp

seaward of the coastal construction control line. The

application was deemed complete by the DEP on September 3, 1996.

By Final Order dated November 27, 1996, the DEP granted a permit,

with certain conditions, (Permit No. IR-507) to the Town for the

construction. By letter dated December 3, 1996, the DEP

provided, among other things, notification to the Town of the

granting of Permit No. IR-507. By Petition filed with the DEP on

December 23, 1996, Peter Broom, Jeremy R. Geffen, and Duane

Jackson protested the granting of the permit and requested a

formal hearing. On January 15, 1997, this matter was referred to

the Division of Administrative Hearings.

At hearing, Mr. Broom, Mr. Geffen, and Mr. Jackson presented

the testimony of two witnesses 1 and entered five exhibits into

evidence. The Town presented the testimony of four witnesses and

entered thirteen exhibits into evidence. The DEP presented the

testimony of two witnesses and entered two exhibits into

evidence.

No transcript of the hearing was ordered. The time for

filing post-hearing submissions was set for no later than ten

days from the date of the hearing. The Town and DEP filed a

joint post-hearing submission which has been duly considered.

Neither Mr. Broom nor Mr. Geffen nor Mr. Jackson filed a post-

hearing submission.

FINDINGS OF FACT

1. The Town of Indian River Shores (Town) is an

incorporated municipality located on a five-mile stretch of the

Atlantic Ocean in Indian River County, Florida. The Town has a

population of approximately 2,700 residents.

2. The Town's Public Safety Department has the combined

functions of law enforcement, fire protection, and life support

(lifesaving). All of the Officers of the Public Safety

Department are cross-trained and cross-designated as police

officers, firefighters, and emergency service specialists who are

either paramedics or emergency medical technicians ( EMTs). The

Officers are on eight-hour shifts; each shift has approximately

four to five Officers on duty, i.e., a police officer, a

firefighter, a paramedic, and an EMT. When fully staffed, the

Public Safety Department consists of 25 Officers. Because of the

small number of Officers and their varied duties, restrictions

and limitations are placed on their deployment.

3. One of the vehicles used by the Public Safety Department

in the performance of duties is an all terrain vehicle ( ATV).

The Public Safety Department has one ATV which is used on the

beach for patrol and rescue purposes and for moving rescue and

lifesaving equipment to and from the beach.

4. In order to access the beach, the Public Safety

Department must travel across the dune , primarily through private

property ( Corrigan Beach) located approximately 3.4 miles from

the office of the Public Safety Department. The Town determined

that this location was unsatisfactory for beach access due to the

property being offered for sale, the great distance of the

property from the Public Safety Department's office, and the dune

being breached each time the ATV is taken onto the beach.

5. The Town determined, however, that Beachcomber Lane, a

public street within the Town, was the best choice for beach

access and entry by the Public Safety Department. Beachcomber

Lane is approximately 1,000 feet in total length and extends from

Highway A1A to the bluff of the Atlantic Ocean. The Pubic Safety

Department is located approximately 1,500 feet from Beachcomber

Lane.

6. The residents of Beachcomber Lane include Peter Broom,

Jeremy R. Geffen, and Duane Jackson. At various times, the

Public Safety Department has also used Beachcomber Lane as an

access to the beach on emergency bases. Currently, a public

raised wooden walkway, with steps, leads over the dune and onto

the beach at the Atlantic Ocean end of Beachcomber Lane.

7. In order for the Public Safety Department to obtain

beach access by way of Beachcomber Lane, an access ramp will have

to be constructed seaward of the coastal construction control

line ( CCCL). Such construction requires, among other things, a

permit from the Department of Environmental Protection (DEP).

8. To design and present the plan to the DEP for a proposed

beach access by way of Beachcomber Lane, the Town obtained the

services of Coastal Technology Corporation (Coastal Technology),

an engineering firm. On July 24, 1996, Coastal Technology filed

an application on behalf of the Town with the DEP for a permit to

construct a beach access ramp seaward of the CCCL. The

application process included the submission of detailed drawings

and other documents required by DEP.

9. In the application, Coastal Technology described the

construction, in pertinent part, as follows:

6. The proposed work consists of the removal

of Brazilian Pepper . . . and installation of

a 100 foot (approximate) long, 10 foot wide

stabilized emergency access ramp. To

minimize the impact to the existing native

vegetation, the proposed emergency access

ramp will be located approximately 8 feet

from the north Right-of-Way within the area

of the existing Brazilian Peppers. . . .

A 2-inch layer of washed concrete sand will

be placed between the limestone and paver

blocks for a proper leveling of the previous

paver blocks. The paver blocks will be

TURFSTONE . . . which . . . have been

permitted by DEP at other locations. . . .

The openings in the TURFSTONE will be filled

with excavated beach sand from the proposed

access ramp footprint. Any remaining sand

. . . will be placed at the seaward end of

the proposed access ramp. To mitigate for

any potential impact to native vegetation,

6 sea grapes will be installed . . . and any

sea oats removed during excavation will be

kept alive and replanted within those areas

void of sea oats.

Three 6-inch by 6-inch pressure treated posts

will be installed with a chain fence. A

locking chain fence will be used to prohibit

the general public from accessing the beach

through the emergency access ramp.

10. In the application, Coastal Technology presented the

justification for the construction, in pertinent part, as

follows:

7. The proposed access ramp at Beachcomber

Lane is specifically for the use by the Town

of Indian River Shores for emergency access

to the beach. The access ramp will have a

locking chain only accessible by the Public

Safety Department and has been designed to

accommodate four-wheel drive patrol and EMT

vehicles. . . . Beachcomber Land [sic] site

was chosen by the Town because of : 1) the

relative stability of the shoreline at that

location; and, [sic] 2) accessibility from

the Indian River Shores Town Hall which is on

the west side of A1A across from Beachcomber

Lane.

11. The application indicated that the proposed beach

access ramp was being constructed for emergency access to the

beach. However, prior to the filing of the application, both

emergency and routine patrol access by the Public Safety

Department were discussed as uses for the access ramp at public

meetings by the Town's public officials in which the subject of

the access ramp was brought up. Such use for the beach access

ramp was contemplated by the Town from the very inception of the

plan for the access ramp.

12. Routine patrol is defined by the Public Safety

Department to be patrolling approximately every other day for one

or two hours.

13. By notice dated August 7, 1996, the DEP requested

public comment on the Town's application for the CCCL permit. By

letter dated August 21, 1996, residents of Beachcomber Lane,

including Mr. Broom, Mr. Geffen, and Mr. Jackson, provided the

DEP with their comments on the Town's application.

14. On September 3, 1996, the Town's application for the

CCCL permit was considered complete by the DEP.

15. On November 6, 1996, at the request of DEP, the Town

conducted a public meeting to obtain public comments regarding

the proposed beach access ramp. The residents of Beachcomber

Lane were notified of the public meeting, and among the residents

attending the meeting were Mr. Broom, Mr. Geffen, and

Mr. Jackson. At the public meeting, the Town clearly stated that

the proposed beach access ramp would be used by the Public Safety

Department for both emergency and routine patrol purposes with

the ATV. Also, the Director of the Public Safety Department

indicated that, based upon information collected regarding

criminal activity and suspected criminal activity along the

beach, routine patrol was needed. 2

16. The application process culminated in the issuance of a

Final Order by the DEP on November 27, 1996, granting the CCCL

permit, with special permitting conditions in addition to the

standard conditions. The CCCL permit granted by the DEP was

Permit No. IR-507. The proposed beach access ramp to be

constructed is approximately 100 feet in length and 10 feet in

width. The construction will utilize turf blocks which permit

grass and foliage to grow through the blocks on the access-way.

A provision of the DEP Final Order requires the removal of exotic

plants (Brazilian Pepper), which are not native plants, and the

replanting of native vegetation adjacent to the access-way.

17. On December 6, 1996, public notice of DEP's issuance of

the CCCL permit to the Town was published in the Town's local

newspaper.

18. The Town agrees to abide by the special conditions, as

well as the standard conditions, to the issuance of the CCCL

permit.

19. The beach access ramp on Beachcomber Lane will be used

by the Town's Public Safety Department for public service

purposes, including emergency rescue, training, and routine

patrol.

20. Beachcomber Lane is the appropriate location for the

beach access ramp.

21. The DEP has determined that the construction of the

beach access ramp meets all the requirements of the DEP for the

issuance of the CCCL permit.

22. The DEP has determined the proposed beach access ramp

to be a minor structure.

23. The construction of the proposed beach access ramp will

cause no significant adverse impact or cumulative impact on the

beach dune system.

24. The design of the proposed beach access, with the

conditions added by the DEP, minimizes adverse impact of the

access ramp.

25. Native vegetation will be maintained and replenished

around the proposed beach access ramp.

26. The proposed construction of the beach access ramp will

not result in a significant adverse impact to the beach and dune

system.

27. No net excavation in the sandy soils seaward of the

control line will result from the construction.

28. No structurally induced scour will result from the

construction because the proposed structure is designed to break-

away during a storm.

29. The potential for wind and waterborne missiles during a

storm is minimized by the construction.

30. Public access to the beach is not interfered with by

the beach access ramp.

31. The construction of the beach access ramp will occur in

a nesting habitat of the marine turtle, i.e., loggerhead,

leatherback and green turtle. The DEP addressed protection of

the nesting area through one of its special conditions to the

issuance of the CCCL permit. The special condition included "no

construction, operation, transportation or storage of equipment

or materials seaward of the dune crest during the marine turtle

nesting season" which is March 1 through October 31 of each year.

With this special condition, the construction, itself, will have

no adverse impact on the marine turtle or the turtle nesting.

The Town agrees to abide by this special condition. 3

32. The access ramp, itself, will have minimal impact on

the marine turtles and will not cause a "take" of the turtles.

33. Furthermore, the use of the ATV by the Public Safety

Department will have no adverse impact on the marine turtles or

the turtle nesting.

34. At hearing, the DEP made another recommendation for the

issuance of the CCCL permit, involving the marine turtle. Prior

to the issuance of the Final Order, the DEP was not fully aware

that the proposed beach access ramp was to be used for both

emergency and routine patrol access. Having considered the

circumstance of routine patrol, the DEP further recommends that a

survey of turtle nesting be conducted after construction, but

prior to routine use, on the Town's entire five-mile stretch

along the Atlantic Ocean to mark turtle nesting areas for their

protection and to place certain restrictions on the use of the

ATV vehicle. This recommendation will not prohibit or hinder the

construction of the beach access ramp.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

36. In the case sub judice , the Town, as the applicant for

the CCCL permit, has the ultimate burden of proof. Florida

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778, 788 (Fla. 1st DCA 1981).

37. If a property owner seeks to construct a structure

seaward of the CCCL, the owner must obtain a CCCL permit from the

DEP by meeting the requirements of Section 161.053, Florida

Statutes, and Chapter 62B-33, Florida Administrative Code.

38. Pursuant to Section 161.58, Florida Statutes, local

government is authorized to access the coastal beach for public

safety reasons. The determination of the necessity and frequency

for such access is in the purview of the local government;

therefore, in this case, such determination is for the Town, not

the DEP. The Town has determined that, in terms of public

safety, beach access is needed for emergency and routine patrol

purposes. The undersigned is not persuaded by the position

asserted by Mr. Broom, Mr. Geffen, and Mr. Jackson that the need

expressed by the Town for the proposed beach access ramp is

unsupported.

39. Section 161.053, Florida Statues, provides in pertinent

part:

(5) [A] permit to alter, excavate, or

construct on property seaward of established

coastal construction control lines may be

granted by the department as follows:

(a) The department may authorize an

excavation or erection of a structure at any

coastal location . . . upon receipt of an

application from a property and/or riparian

owner and upon the consideration of facts and

circumstances, including:

1. Adequate engineering data concerning

shoreline stability and storm tides related

to shoreline topography;

2. Design features of the proposed

structures or activities; and

3. Potential impacts of the location of such

structures or activities, including potential

cumulative effects of any proposed structures

or activities upon such beach-dune system,

which, in the opinion of the department,

clearly justify such a permit.

* * *

(c) The department may condition the nature,

timing, and sequence of construction of

permitted activities to provide protection to

nesting sea turtles and hatchlings and their

habitat, pursuant to s. 370.12, and to native

salt-resistant vegetation and endangered

plant communities.

(d) The department may require such engineer

certifications as necessary to assure the

adequacy of the design and construction of

permitted projects.

40. Rule 62B-33.007, Florida Administrative Code, provides

in pertinent part:

(1) All structures shall be designed so as

to minimize any expected adverse impact on

the beach-dune system or adjacent properties

and structures and shall be designed

consistent with Section 62B-33.005, Florida

Administrative Code.

* * *

(4) Minor structures need not meet specific

structural requirements for wind and wave

forces, but they shall be designed to produce

the minimum adverse impact on the beach and

dune system and adjacent properties and to

reduce the potential for generating

aerodynamically or hydrodynamically-propelled

missiles.

41. Rule 62B-33.005, Florida Administrative Code, provides

in pertinent part:

(2) In order to demonstrate that

construction is eligible for a permit, the

applicant shall provide the Department with

sufficient information pertaining to the

proposed project to show that any impacts

associated with the construction have been

minimized and that the construction will not

result in a significant adverse impact.

(3) After reviewing all information required

pursuant to this Chapter, the Department

shall:

(a) Deny any application for an activity

which either individually or cumulatively

would result in a significant adverse impact

including potential cumulative effects. In

assessing the cumulative effects of a

proposed activity, the Department shall

consider the short-term and long-term impacts

and the direct and indirect impacts the

activity would cause in combination with

existing structures in the area and any other

activities proposed within the same fixed

coastal cell. The impact assessment shall

include the anticipated effects of the

construction on the coastal system and marine

turtles. Each application shall be evaluated

on its own merits in making a permit

decision; therefore, a decision by the

Department to grant a permit shall not

constitute a commitment to permit additional

similar construction within the same fixed

coastal cell.

(b) Require practicable siting and design

criteria that minimize adverse impacts, and

mitigation of adverse or other impacts.

(4) The Department shall issue a permit for

construction which an applicant has shown to

be clearly justified by demonstrating that

all standards, guidelines and other

requirements set forth in the applicable

provisions of Part I, Chapter 161, Florida

Statutes, and this Chapter are met, including

the following:

(a) The construction will not result in

removal or destruction of native vegetation

which will either destabilize a frontal,

primary or significant dune or cause a

significant adverse impact to the beach and

dune system due to increased erosion by wind

or water;

(b) The construction will not result in

removal or disturbance of in situ sandy soils

of the beach and dune system to such a degree

that a significant adverse impact to the

beach and dune system would result from

either reducing the existing ability of the

system to resist erosion during a storm or

lowering existing levels of storm protection

to upland properties and structures;

(c) The construction will not result in the

net excavation of the in situ sandy soils

seaward of the control line or 50-foot

setback;

(d) The construction will not cause an

increase in structure-induced scour of such

magnitude during a storm that the structure-

induced scour would result in a significant

adverse impact;

(e) The construction will minimize the

potential for wind and waterborne missiles

during a storm;

(f) The activity will not interfere with

public access, as defined in Section 161.021,

Florida Statutes; and

(g) The construction will not cause a

significant adverse impact to marine turtles,

immediately adjacent properties or the

coastal system unless otherwise specifically

authorized in this Chapter.

(5) Sandy material excavated seaward of the

control line or 50-foot setback shall remain

seaward of the control line or setback and be

placed in the immediate area of construction

unless otherwise specifically authorized by

the permit.

42. Section 161.021, Florida Statutes, provides in

pertinent part:

(1) "Access" or "public access" as used in

ss. 161.041, 1161.052, and 161.053 means the

public's right to laterally traverse the

sandy beaches of this state where such access

exists on or after July 1, 1987.

43. Rule 62B-33.002, Florida Administrative Code, provides

in pertinent part:

(23) "Impacts" are those effects, whether

direct or indirect, short or long term, which

are expected to occur as a result of

construction and are defined as follows:

(a) "Adverse Impacts" are impacts to the

coastal system that may cause a measurable

interference with the natural functioning of

the system.

(b) "Significant Adverse Impacts" are

adverse impacts of such magnitude that they

may:

1. Alter the coastal system by:

a. Measurably affecting the existing

shoreline change rate;

b. Significantly interfering with its

ability to recover from a coastal storm;

c. Disturbing topography or vegetation such

that the system becomes unstable, or suffers

catastrophic failure; or

2. Cause a take, as defined in Section

370.12(1), Florida Statutes, unless the take

is incidental pursuant to Section

370.12(1)(f), Florida Statutes.

(c) "Minor Impacts" are impacts associated

with construction which are not adverse

impacts due to their magnitude or temporary

nature.

(d) "Other Impacts" are impacts associated

with construction which may result in damage

to existing structures or property or

interference with lateral beach access.

* * *

(47) "Structure" is the composite result of

putting together or building related

components in an ordered scheme. Enumeration

of types of structures in this Subsection

shall not be construed as excluding from the

application of this Chapter any other

structure which by usage, design, dimensions,

or structural configuration meets the general

definition herein provided and requires

engineering considerations similar to the

following:

* * *

(d) "Minor Structures" are designed to be

expendable, and to minimize resistance to

forces associated with high frequency storms

and to break away when subjected to such

forces, and which are of such size or design

as to have a minor impact on the beach and

dune system.

(e) "Major Structures" which, as a result of

design, location or size could cause an

adverse impact to the beach and dune system.

Major structures include:

1. " Nonhabitable Major Structures" which are

designed primarily for uses other than human

occupancy. Typically included within this

category are roads, bridges, storm water

outfalls, bathhouses, cabanas, swimming pools

and garages.

2. "Habitable Major Structures" which are

designed primarily for human occupancy and

are potential locations for shelter from

storms. Typically included within this

category are residences, hotels, commercial

buildings, stores and restaurants.

44. Section 370.12, Florida Statutes, provides in pertinent

part:

(1) PROTECTION OF MARINE TURTLES.–

(a) This subsection may be cited as the

"Marine Turtle Protection Act."

* * *

(c)1. Unless otherwise provided by the

federal Endangered Species Act or its

implementing regulations, no person may take,

possess, disturb, mutilate, destroy, cause to

be destroyed, sell, offer for sale, transfer,

molest, or harass any marine turtle or its

nest or eggs at any time. For purposes of

this subsection, "take" means an act which

actually kills or injures marine turtles, and

includes significant habitat modification or

degradation that kills or injures marine

turtles by significantly impairing essential

behavioral patterns, such as breeding,

feeding, or sheltering.

(d) Any application for a department permit

or other type of approval for an activity

that affects marine turtles or their nests or

habitat shall be subject to conditions and

requirements for marine turtle protection as

part of the permitting or approval process.

(e) The department may condition the nature,

timing, and sequence of construction of

permitted activities to provide protection to

nesting marine turtles and hatchlings and

their habitat pursuant to the provisions of

s. 161.053(5). . . .

(f ) The department shall recommend denial of

a permit application if the activity would

result in a "take" as defined in this

subsection, unless, as provided for in the

federal Endangered Species Act and its

implementing regulations, such taking is

incidental to, and not the purpose of, the

carrying out of an otherwise lawful activity.

45. The evidence shows that the proposed beach access ramp

is a minor structure.

46. The evidence shows that the construction of the beach

access ramp will not result in a "take."

47. Pursuant to Section 161.053 and Rules 62B-33.005 and

62B-33.007, the proposed beach access ramp (the proposed

structure) must be designed to minimize potential impacts of the

proposed structure, including the potential cumulative effects of

other proposed structures or activities in the area, on the

beach-dune system.

48. No permit can be issued for the proposed structure if

it, either individually or cumulatively with other existing

structures, will result in a significant adverse impact.

Rule 62B-33.005.

49. The evidence demonstrates that the impact of the

proposed beach access ramp is minimal; that the construction or

use of the beach access ramp will have no adverse effect on the

marine turtle or the turtle nesting; and that the beach access

ramp will not cause significant adverse impacts or cumulative

impacts.

50. Hence, the proposed beach access ramp meets the

requirements of Section 161.053, Florida Statutes, and

Chapter 62B-33, Florida Administrative Code.

51. The undersigned is not persuaded by two positions

asserted by Mr. Broom, Mr. Geffen, and Mr. Jackson that (1) a

material misrepresentation was made by the Town as to the use or

purpose of the proposed beach access ramp beyond emergency

access, i.e., routine patrol; and (2) they were denied proper

notice and due process. The evidence is insufficient to support

their positions. Even though the written documents and papers

submitted to the DEP by the Town indicate that the proposed beach

access ramp would be used for emergency access, not both

emergency and routine patrol, public comment was requested and

received by the DEP from the residents of Beachcomber Lane,

including Mr. Broom, Mr. Geffen, and Mr. Jackson. Furthermore,

prior to the issuance of DEP's Final Order, the Town noticed the

residents of Beachcomber Lane of a public meeting in which public

comments would be received regarding the proposed beach access

ramp. At the public meeting, which was attended by residents of

Beachcomber Lane, including Mr. Broom, Mr. Geffen, and

Mr. Jackson, both emergency and routine patrol access were

presented as purposes for the access ramp and the residents made

their positions known to the Town.

52. Additionally, the DEP, having considered both emergency

and routine patrol access, did not deny the CCCL permit. Only

another recommendation to protect marine turtles was made by the

DEP, regarding the routine patrol.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order granting the Town of Indian River Shores the

Coastal Construction Control Line Permit No. IR -507, with the

special conditions as may be required by the Department for the

protection of marine turtles.

DONE AND ENTERED this 8th day of December, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of December, 1997.

ENDNOTES

1/ Mr. Broom and Mr. Jackson testified in their own behalf.

Neither Mr. Broom nor Mr. Geffen nor Mr. Jackson presented any

expert witnesses. Experts were presented by the Town and DEP in

support of granting the permit.

2/ Insufficient evidence was presented to refute the Director's

need assessment.

3/ A recommendation was also made in furtherance of the

protection of the marine turtle that the "seaward terminus of the

permitted access ramp shall not encroach closer than 10 feet from

the crest of the dune." The Town agrees also to this

recommendation.

COPIES FURNISHED:

Thomas I. Mayton, Jr., Esquire

Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Theodore W. Herzog, Esquire

209 Duval Street

Key West, Florida 33040

Chester Clem, Esquire

Town Of Indian River Shores

Univest Building, Suite 501

2770 Indian River Boulevard

Vero Beach, Florida 32960-4278

Kathy Carter, Agency Clerk

Department of Environmental Protection

Office of the General Counsel

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odem, General Counsel

Department of Environmental Protection

Office of the General Counsel

3900 Commonwealth Boulevard

Mail Station 35

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.