97-002481 Stanley And Patsy Kencik vs. Department Of Environmental Protection Status: Closed Recommended Order on Thursday, June 25, 1998.

Summary: Evidence did not support issuance of after the fact CCCL permit for enhanced and expanded deck built after hurricane destroyed original deck.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANLEY and PATSY KENCIK, )

)

Petitioners, )

)

vs. ) Case No. 97-2481

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

on April 28, 1998, in Panama City, Florida, before the Division

of Administrative Hearings, by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Robert Tuno, Personal Represenative

Real Estate Broker

Sunspot Realty

16428 Front Beach Road

Panama City Beach, Florida 32431

For Respondent: Ricardo Muratti, Esquire

Department of Environmental

Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue in this case is whether the application submitted

by Stanley and Patsy Kencik for an after-the fact coastal

construction control line (CCCL) permit for an existing and

expanded multi-level deck seaward of the CCCL in Panama City,

Florida, complies with the applicable provisions of

Sections 161.053, Florida Statute, and Rule 62B-33, Florida

Administrative Code, and should be granted.

PRELIMINARY STATEMENT

In April of 1996, the Department warned the Kenciks of

potential violations for having an unpermitted deck that violated

state regulation concerning CCCL. On July 9, 1996, the Kenciks

applied to the Florida Department of Environmental Protection

(DEP or Department) for an after-the-fact coastal construction

control line (CCCL) permit, under Chapter 161 of the Florida

Statutes and for a permit for the deck enhancement to the smaller

previously permitted deck of their townhouse. On April 22, 1997,

DEP issued a CCCL permit BA-469 ATF (BA-469) to the Kenciks. The

permit provided for a single deck with stairs that was similar to

the deck the Kenciks had prior to Hurricane Opal. DEP denied the

after-the-fact permit for the new lower deck and deck addition.

DEP required the Kenciks to remove the unpermitted deck they had

built after Hurricane Opal.

The Kenciks filed a petition challenging BA-469 ATF as to

the partial denial of their application. The matter was referred

to Division of Administrative Hearings.

At the hearing, the parties stipulated to the exhibits that

were entered into evidence. The Kenciks were not present at the

hearing. Mr. Tuno, the Kenciks' realtor, was qualified by Judge

Cleavinger to represent the Kenciks interests. Mr. Tuno did not

present any witnesses or testimony but offered argument and

cross-examination. He also offered four photographs of the

Kenciks' deck into evidence.

After the hearing, the Department filed its proposed

recommended order on June 10, 1998. Petitioner did not file a

proposed recommended order.

FINDINGS OF FACT

1. DEP has coastal permitting authority seaward of the

coastal construction control line (CCCL) under Chapter 161,

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

The CCCL is a line of regulation established in each county that

determines the area seaward of which all projects are subject to

design regulation by the state due to their proximity to the

ocean during a storm event. See Section 161.053, Florida

Statutes.

2. The Kenciks townhouse is located at 17633 Front Beach

Road, Panama City (the site) in Bay County, Florida. The

townhome is seaward of the CCCL for Bay County. When the row of

townhouses that the Kenciks live in was first constructed, the

Department permitted the townhouses with decks.

3. The original deck along the seaward face of the Kenciks'

townhouse consisted of a small triangular deck. The original

deck pilings and deck of the townhouse did not extend seaward

beyond any adjacent angled townhouse unit.

4. Moreover, the deck, not including the stairs, was built

on the same foundation as the townhouse.

5. In 1995, Hurricane Opal destroyed the beach access

stairs to the Kenciks' deck. However, the deck remained in

place, demonstrating the success of the deck design under extreme

storm conditions.

6. In April of 1996, under the false assumption that it was

okay to build the current deck because others were repairing or

enhancing their destroyed decks after Hurricane Opal, the Kenciks

added on a 10-foot square wooden lower deck and a 12-foot square

attachment to the existing deck.

7. In the post-Opal chaos in Panama City Beach, many

destroyed decks in the region were field permitted by DEP for

reconstruction. Most field permits were for replacement of the

decks that had been previously in place and permitted.

8. Field permits, issued by on-site DEP inspectors, are for

small structures in the area landward of a frontal dune. A field

permit would not have been applicable to the Kenciks' project

which is seaward of a frontal dune. However, the Kenciks

witnessed six decks being built which the Department had

erroneously issued permits for. The six enhanced decks were

close to the area of Petitioners' townhome. Two decks to the

east of the Kenciks were enhanced in excess of ordinary criteria

due to ambiguous permit specifications. Four decks to the west

of the Kenciks should have been reviewed by the Tallahassee

Bureau of Beaches and Coastal Systems office. However, they were

reviewed and approved with less scrutiny at the field level and

were permitted in error. Significantly none of the six decks

would have been permitted based on each decks application had

they undergone the appropriate permitting review. The Department

did not rescind these permits after the applicants relied on the

agency action and proceeded to repair and enhance their decks.

9. At no time did the Department make any oral or written

representation to the Kenciks that they could expand their deck

or could build the current deck without a permit.

10. In April of 1996, the Department discovered the

Kenciks' new unpermitted deck; DEP cited the Kenciks for having a

deck not in conformance with Department regulations and for not

having a permit to build it. In July of 1996, the Kenciks

submitted an after-the-fact application for a CCCL permit for the

deck structure.

11. An after-the-fact permit is a permit issued for work

already done.

12. The new disputed deck substantially expanded the

original structure. The new deck is comprised of a 12-foot by

14-foot upper deck addition to the original deck and a 10-foot by

10-foot lower deck with associated pilings and stairs. The lower

deck functions as a turning point for the stairs of the deck.

The Kenciks constructed a larger deck than their original deck,

added a new lower deck, and ran stairs down through them. The

new deck and pilings now extend out beyond all other decks in the

row of townhouses and extend beyond the footprint and foundation

of the Kenciks townhouse. No permit was applied for prior to the

new decks' construction.

13. On April 22, 1997, the Department issued the Kenciks

CCCL permit BA-469 ATF for the original small triangular deck

with stairs that had been in place prior to Hurricane Opal. The

CCCL permit BA-469 ATF did not authorize the Kenciks to keep the

unpermitted 12-foot by 14-foot addition or the 10-foot lower

deck. The permit requires the removal of the addition and lower

deck.

14. The evidence showed that the Kenciks' application to

DEP did not contain sufficient information as to how the new deck

was constructed, as to how it was attached to the townhome, or as

to what the deck was made of. The application also did not

detail how deep the deck pilings were, the deck's location

relative to the mean high water line, and whether the deck is

designed to reduce the potential for waterborne or airborne

missiles during a storm event. Without such information, there

was no evidence contained in the application to show that the

deck project could withstand a storm event or whether the deck as

built reduces the potential for waterborne or airborne missiles

during a storm event.

15. Indeed the lower deck is at approximately 12 NGVD (12

feet above ordinary sea level). The lower deck is in the same

area as the stairs that were swept away by Opal formerly

occupied. The lower deck is low enough to be interactive with a

lesser storm event. Because a lesser storm event would impact

the lower deck, it would be likely to fall apart, becoming

waterborne missiles and adversely affecting adjacent properties.

In a 20-year storm event (which occurs with less force than

Opal), the lower deck will be destroyed, like the stairs were

during Opal. The debris from that deck would likely hit the

upper deck causing more waterborne or airborne debris.

16. In short, the evidence showed that the Kenciks' deck

was not designed to minimize adverse impacts on adjacent

properties, reduce the potential for generating aerodynamically

propelled missiles or reduce the potential for generating

hydrodynamically propelled missiles.

17. The unpermitted decks violate the permitting criteria

applicable to structures of this type in the location of the

Kenciks townhome adjacent to coastal waters. Therefore, the

permit for the enhanced and expanded deck should be denied and

the deck removed.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over this subject matter and the parties to this

action pursuant to Section 120.57(1), Florida Statutes.

19. If the location of a structure is proposed seaward of

the CCCL, then the owner must obtain a CCCL permit from DEP by

meeting the requirements of Section 161.053, Florida Statutes and

Chapter 62B-33, Florida Administrative Code. Since the Kenciks'

site is seaward of the CCCL for Bay County, DEP has jurisdiction

over any construction at the site under its CCCL program. See

Section 161.053, Florida Statutes and Rule 62B-33, Florida

Administrative Code.

20. Part I of Chapter 161, Florida Statutes, is intended to

"preserve and protect" Florida sand beaches and dunes adjacent to

such beaches "from imprudent 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." See

Section 161.053(1)(a), Florida Statutes. The CCCLs were

established "to define that portion of the beach-dune system

which is subject to severe fluctuations based on a 100-year storm

surge, storm waves, or other predictable weather conditions."

Id.

21. Rule 62B-33.055, Florida Administrative Code provides

in pertinent part:

(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

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 a additional similar

construction within the same fixed coastal

cell.

(b) Require 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:

* * *

(e) The construction will minimize the

potential for wind and waterborne missiles

during a storm. . . .

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

in pertinent part:

(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.

23. The Kenciks, as applicants, have the burden of proving

that they are entitled to a CCCL permit. Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981). The Kenciks did not offer any testimony, expert

witnesses, witnesses, documents, or competent substantial

evidence during the hearing which demonstrated their entitlement

to this permit.

24. In addition, the evidence showed that the Kenciks

failed to minimize the potential for the upper deck addition and

the lower deck to generate wind and waterborne missiles during a

storm, in violation of Section 161.053(1)(a), Florida Statutes

and Rules 62B-33.005(4)(e) and 62B-33.007(4), Florida

Administrative Code, and failed to minimize the potential adverse

impacts of the upper deck addition and the lower deck on adjacent

properties and structures, in violation of Section 161.053(1)(a),

Florida Statutes and Rules 62B-33.005(3)(a)-(b) and 62B-

33.007(4), Florida Administrative Code.

25. The only defense raised by Petitioner was estoppel

based on the erroneously permitted decks built in the area of the

Kenciks' townhome.

26. The doctrine of equitable estoppel may be applied

against the state only rarely and under exceptional circumstances

. . ., any decision regarding the application of equitable

estoppel depends upon properly made findings of fact as to each

of the three elements of estoppel: (1) a representation as to a

material fact that is contrary to a later-asserted position; (2)

reliance on that representation; and (3) a change in position

detrimental to the party claiming estoppel, caused by the

representation and reliance thereon." Dolphin Outdoor

Advertising v. Department of Transportation , 582 So. 2d 709, 710-

711 (Fla. 1st DCA 1991). See Cordes v. Department of

Environmental Regulation , 582 So. 2d 652 (Fla. 1st DCA 1991) and

Department of Environmental Regulation v. C.P. Developers, Inc. ,

512 So. 2d 258 (Fla. 1st DCA 1987).

27. The Department reviews every application on its own

merits in making a permit decision; therefore, a decision by the

Department to grant permits elsewhere on the coast does not

constitute a commitment to permit additional similar construction

within the same region. Rule 62B-33.005(3)(a), Florida

Administrative Code.

28. The Kenciks have failed to show any departmental

statement of material fact that would lead them to believe they

could enhance their deck. The Kenciks have failed to show they

relied upon any statement, and cannot therefore show that

reliance led to any detriment. Therefore, the Kenciks have

failed to establish any basis that the Department should be

estopped from applying Rule 62B-33, Florida Administrative Code,

and Chapter 161, Florida Statutes, to their property. Rule 62B-

33.005(3)(a), Florida Administrative Code, and Dolphin Outdoor

Advertising , 582 So. 2d 710-711.

29. In this case, the Kenciks failed to offer any

documentary evidence regarding the project for their proposed

CCCL permit. Therefore, the application for the portion of the

project requested by the Kenciks to which the Department objected

should be denied.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is,

RECOMMENDED:

That the Department of Environmental Protection permit BA-

469 ATF be Affirmed and the Department of Environmental

Protection enter a Final Order issuing the Department's permit

BA-469 ATF of April 21, 1997, which denied in-part the

application for a CCCL permit for the upper deck addition and the

lower deck, and only approves the repair of the original deck and

stairs, and requires removal of the unpermitted structures.

DONE AND ENTERED this 25th day of June, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of June , 1998.

COPIES FURNISHED:

Ricardo Muratti, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Robert Tuno, Personal Representative

Real Estate Broker

Sunspot Realty

16428 Front Beach Road

Panama City Beach, Florida 32413

Kathy Carter, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary

Department of Environmental Protection

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.