04-003426 Ronnie E. Young, Pamela C. Young And Lisa R. Schrutt vs. Department Of Environmental Protection, Randolph E. Brown And Nancy F. Brown Status: Closed Recommended Order on Monday, August 15, 2005.

Summary: The permit for construction seaward of the coastal construction control line should be approved. The proposed project will not cause significant adverse impacts even though it is located on a frontal dune.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONNIE E. YOUNG, PAMELA C. )

YOUNG , and LISA R. SCHRUTT, )

)

Petitioner s , )

)

vs. ) Case No. 04 - 3426

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, RANDOLPH E. BROWN )

and NANCY F. BROWN, )

)

Respondent s . )

)

RECOMMENDED ORDER

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

on April 19 - 21, 2005, in Sarasota, Florida, before T. Kent

Wetherell, II, the designated Administrative Law Judge of the

Di vision of Administrative Hearings.

APPEARANCES

For Petitioners: Mark A. Nelson, Esquire

Ozark, Perron & Nelson, P.A.

2808 Manatee Avenue, West

Bradenton, Florida 34205

For Respondent Department of Environmental Protection:

Mark S. Miller, Esquire

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Respondents Randolph and Nancy Brown (the Browns):

William L. Hyde, Esquire

Fowler Whit e Boggs Banker, P.A.

Post Office B ox 11240

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue is whether the Department of Environmental

Protection should issue a permit to the Browns authorizing

construction on the ir property, which is s eaward of the coastal

construction control line.

PRELIMINARY STATEMENT

Through a letter dated July 29, 2004, the Department of

Environmental Protection (Department) gave notice of its intent

to issue a permit to the Browns authorizing certain construction

on the ir property, which is seaward of the coastal construction

control line (CCCL). Petitioners, Lisa Schrutt (Schrutt) and

Ronnie and Pamela Young (the Youngs), timely requested an

administrative hearing on the Department’s decision to issue the

permit, and on September 22, 2004, the Department referred this

matter to the Division of Administrative Hearings (D OAH ) for the

assignment of an administrative law judge to conduct the hearing

requested by Petitioners.

The final hearing was initially scheduled f or November 8 - 9,

2004, but it was resche duled for January 12 - 13, 2005, on

Petitioners’ motion . The hearing was subsequently rescheduled

for April 19 - 21, 2005, on the Browns’ motion .

Petitioners filed a Second Amended Petition for

Administrative Hearing on January 6, 2005, and the case

proceeded to final hearing on that petition. Petitioners’ ore

tenus motion at the hearing to amend the Second Amended Petition

to correct several rule citations therein was granted, and the

corrections are set forth in Volum e 1 of the Transcript , at

pages 13 - 16 .

At the final hearing, Petitioners presented the testimony

of Ken Kolarik; Ronnie Young; Pamela Young; Lisa Schrutt;

Dr. Michael Stephen, who was accepted as an expert in coastal

geology; and Lisa Blanton. Petitioners ’ Exhibits P1, P2A

through P2L, P3, P4, P5A through P5D, P6, P30, P34, and P38 were

received into evidence.

The Department presented the testimony of Tony McNeil, who

was accepted as an expert in the application of the statutes and

rules relating to the CCCL permitting process and in coastal

engineering. The Department did not offer any exhibits.

The Browns presented the testimony of Ted Sparling;

Jeffrey Hostetler, who was accepted as an expert in land

surveying; Michael Walther, who was accepted as a n expert in

coastal engineering; Randolph Brown; and Mr. McNeil. The

Browns’ Exhibits 1 through 14, 16, 17A through 17L, 18, 18A, 19

through 25, 30A, and 30B were received into evidence.

Official recognition was taken of Florida Administrative

Code Rule Chapter 62B - 33.

The three - volume Transcript of the final hearing was filed

on June 29, 2005, along with a condensed version of the

Transcript. 1 The parties requested 2 0 days from that date to

file their proposed recommended orders (PROs) , and thereby

wai ved the deadline for this Recommended Order. See Fla. Admin.

Code R. 28 - 106.215(2). T he parties’ PROs were timely filed and

have been given due consideration .

FINDINGS OF FACT

A. Property Description s

(1) The Browns’ Property

1. The Browns own Lots 5, 6, 7, 15 , and 16 of a platted

subdivision known as the First Addition of Anna Maria Beach

Subdivision, Block 35 (the Subdivision) .

2. The Subdivision is on Anna Maria Island in the City of

Anna Maria, which is in Manatee County.

3. All of the Browns’ lo ts are seaward of the CCCL

established by the Department for Manatee County .

4. The parties stipulated that the construction authorized

by the permit at issue in this proceeding is landward of the 30 -

year erosion line . Indeed, a ccording to the analysis o f the

permit application prepared by the Department’s staff , the 30 -

year erosion line is approximately 111 feet seaward of the

proposed construction. See Browns’ Exhibit 6, at 3.

5. Lot 5 is the most landward lot owned by the Browns.

Lot 6 is adjacent t o and seaward of Lot 5, and Lot 7 is adjacent

to and seaward of Lot 6. Lots 15 and 16 are seaward of Lot 7,

and they are separated from Lot 7 by a 10 - foot wide “vacated

alley.”

6. The Subdivision was platted in 1912. The plat of the

Subdivision , Exhibit P6 , shows the seaward edge of Lots 15 and

16 bordering on a road named Gulf Boulevard, which appears to be

some distance inland from the Gulf of Mexico. 2

7. Gulf Boulevard no longer exists, and all of Lots 7, 15,

and 16 are now located on the sandy beach between Lot 6 and the

Gulf of Mexico.

8. The seaward edge of Lot 6 is approximately 176 feet

landward of the mean high water line (MHWL) of the Gulf of

Mexico . Se e Exhibit P5B .

9. There are no structures or improvements located on Lots

7, 15, or 16.

10. There are also no structures or improvements located

on Lots 8, 9, and 10, which are to the north of Lots 7, 6, and

5, respectively. See Exhibit P4.

11. Lot 10 was the subject of a CCCL permit application

denied by the Department in 2000 based upo n the Recommended

Order issued in DOAH Case No. 99 - 3613 , which is referred to by

the parties as “ the Negele case.” See Exhibit P30.

12. There is an 850 - square - foot single - family residence on

Lots 5 and 6 that was constructed in the 1920’s and is used b y

the Browns as a vacation home. The property’s address is 104

Pine Avenue.

13. All of the enclosed living area of the residence is on

Lot 5. A wooden deck attached to the residence extends

approximately 17 feet onto Lot 6, and at its most seaward point ,

the deck is 262.41 feet seaward of the CCCL. See Browns’

Exhibit 9.

14. There are no structures on Lot 6 other than t he wooden

deck.

15. More than half of Lot 5 has been previously disturbed.

In addition to the Browns’ residence , there is a small wo od

“tool shed ” located on that lot. The disturbed area s on Lot 5

betwee n the residence and the shed and between the shed and Pine

Avenue ( see Exhibit P5C, areas marked with a yellow “1” and “2”)

are used by the Browns for, among other things, parking and

storage of boats. Those areas have very little vegetative

cover .

16. The northwest portion of Lot 5 is undisturbed and, as

more fully discussed below, that area is densely v egetated with

sea oats, sea grapes, and century plants.

(2) Schrutt’s Property

1 7. Schrutt owns Lot 4 of the Subdivision , which is

adjacent to and immediately landward of the Browns’ Lot 5. The

property’s address is 108 Pine Avenue.

18. There is a two - story single - family res idence on Lot 4

that Schrutt uses as a vacation home.

19. Schrutt’s vacation home extends fa rther to the

northwest than does the residence on the Browns’ lot. As a

result, Schrutt currently has an unimpeded view of the Gulf of

Mexico over the Browns' shed and across the undisturbed po rtion

of the Browns’ lot fr om her second - floor deck . See Exhibits P2F

and P5A.

(3) The Young s ’ Property

20. The Youngs own Lot 3 of the Su bdivision, which is

adjacent to and immediately landward of Schrutt’s lot and

approximately 50 feet landward of the Browns’ Lot 5 . The

prop erty’s address is 110 Pine Avenue.

21. There is a three - story single - family residence on Lot

3 that the Youngs use as a vacation home.

22. The Young’s vacation home is set f a rther back from

Pine Avenue than are the residences on the Browns’ lot and

Scrut t’s lot. As a result, the Youngs currently have an

unimpeded view of the Gulf of Mexico across Schrutt’s lot and

the undisturbed p ortion of the Browns’ lot (as well as across

Lot 10) from their second - and third - floor deck s . See Exhibits

P2F and P5A.

B . The Proposed Project and its Permitting History

23. On March 30, 2004, the Browns submitted to the

Department an application for a CCCL permit to allow t hem to

construct an addition to the ir existing residence on Lots 5 and

6 ( “ the Project ” or “the pro posed construction” ).

24. The Project will include the renovation of the

e xisting residence, additional residential space in an elevated

structure on a pile foundation that wil l be connected to the

existing residence , an elevated swimming pool and deck on a pile

foundation , and a driveway made of pavers. There will be a

concrete slab under a portion of the new elevated structure in

th e vicinity of the existing shed that will be enclosed and used

as a two - car garage. See Browns’ Exhibit 14, s heet 9;

Trans cript, Volume 2, at 163 - 64.

25. The finished floor elevation of the garage sla b will

be 7.0 feet above sea level /NGVD , 3 which is s lightly lower than

the 8.4 - foot finished floor elevation of the Browns’ existing

residence . The elevated portions of the pro posed construction

will be 19.2 feet above sea level /NGVD , with a finished floor

elevation between 20.2 and 20.7 feet.

26. The “footprint” of the proposed construction is

predominately on Lot 5, but it does extend 10 to 15 feet onto

Lot 6. See Exhibit P5 B , blue cross - hatched area.

27. The seaward extent of the Project is in alignment with

the existing residence and deck on the Browns’ property .

28. After completion of the Project, the Browns’ vacation

home w i ll include approximately 2,500 square feet of enclosed

space .

29. The Browns’ permit application did not mention

Schrutt, whose lot is adjacent to the lots on which the Project

will be located, even though the application form requires the

applica nt to list “[t]he name and mailing address of the own ers

of the immediate ly adjacent properties . . . .” The reason for

this omission is not entirely clear.

30. The permit application included a letter from

Kevin Donohue, Building Official, on the letterhead of the City

of Anna Maria, which states that “[a ] review of the proposed

activity described in the seventeen - page plan package for an

addition and alternation to an existing single family dwelling

does not contravene the City of Anna Maria Code of Ordinances,

Comprehensive Plan, and the Florida State Bu ilding Code.”

31. The “seventeen - page plan package” referenced in

Mr. Donohue’s letter is the same set of plans that the Browns

submitted to the Department with their application . Those plans

were received into evidence as the Browns’ Exhibit 14.

32. T he parties stipulated that the City of Anna Maria

building and zoning codes require structures to be set back at

least 10 feet from the property line .

33. The site plan for the Project shows the new elevated

portion of the Browns’ residence exactly 10 fee t from Schrutt’s

Lot 4, and exactly 10 feet from the “alley” that runs between

Lot 5 and Lot 10 to the north. 4

34. Mr. Brown testified that the City prohibits on - street

parking on Pine Avenue , which explains (at least in part) why

the Project includes d riveway pavers and a concrete

slab /enclosed garage under a portion of the new elevated

structure for parking.

35. There have been no material modifications to th e

Project since t he date of Mr. Donohue’s letter and, as discussed

below, no material modifica tions will be necessary for the

Project to satisfy the special permit conditions imposed by the

Department. Thus, it is appropriate for the Department to

continue to rely on the letter as proof that the Project does

not contravene the applicable local cod es.

36. The survey submitted with the Browns’ permit

application was dated September 4, 2002, which is approximately

18 months before the date of the application.

37. The survey identified a “vegetation line” along the

seaward edge of Lot 6 behind an a rea designated as “rocks,” and

its also included the notation “sea oat existing” in the area

between the vegetation line/rocks and the Browns ' existing home

as well as in the area of the Project. Neither the survey, nor

any other information provided to t he Department with the permit

application showed the extent of the vegeta tion and dune

features in the area of the Project with the same level of

detail as is sho wn on Exhibits P5A, P5B and P5C and the Browns’

Exhibits 30A and 30B.

38. By letter dated Apr il 21, 2004, the Department

requested additional information about the project, including a

“topographic survey drawing of the subject property . . . from

field survey work performed not more than six months prior to

the date of the application.”

39. By l etters dated May 3, 12, and 13, 2004, the Browns

provided additional information about the Project pursuant to

the Department’s request. They did not provide a more current

survey than the September 2002 survey included with the

application , although they did provide a signed and sealed copy

of the 2002 survey .

40. Notwithstanding the Browns failure to provide a more

current survey, the Department apparently considered the Browns ’

application to be complete because on July 29, 2004, the

Department advised the Browns that their CCCL permit application

for the Project was approved.

41. The Browns’ failure to comply with the technical

submittal requirements relating to the survey is not material as

a result of the more current and more detailed survey

inform ation presented at the final hearing .

42. The Department’s approval of the Browns’ permit

application was subject to the general permit conditions in

Florida Administrative Code Rule 62B - 33.0155 , as well as a

number of special permit conditions, including :

1. No work shall be conducted under this

permit until the permittee has received a

written notice to proceed from the

Department.

2. Prior to issuance of the Notice to

Proceed, the permittee shall submit two

copies of revised site plan depicting t he

swimming pool and deck extending a maximum

distance of 265 feet seaward of the coastal

construction control line. (Italics in

original).

* * *

8. All vegetation located seaward of the

coastal construction control line shall be

preserved except for that disturbance which

is necessary for dwelling construction.

9. Prior to completion of construction

activities authorized by this permit, the

permittee shall plant a mix of a minimum of

three native salt - tolerant species within

any disturbed are as seaward of the

authorized structures. Plantings shall

consist of salt - tolerant species indigenous

to the native plant communities existing on

or near the site or with out native species

approved by the Department . . . .

43. As permitted, the various components of the Project

are to be located as follows: the new elevated portion of the

residence, a maximum of 259.4 feet seaward of the CCCL; the

addition to the existing residence, a maximum of 249.4 feet

seaward of the CCCL; and the elevated swimming pool and deck, a

maximum of 265 feet seaward of the CCCL.

44. On August 16, 2004, the Browns provided a revised site

plan to the Department in purported compliance with special

permit condition No. 2. The revised site plan was received into

evidence as the Browns’ Exhibit 9.

45. The revised site plan does not comply with special

permit condition No. 2. It continues to show the pool and deck

extending 268 .41 feet seaward of the CCCL and it also shows a

“ pool security fence” extending 272.41 feet seawar d of the CCCL.

46. By letter dated August 25, 2004, the Department

advised the Browns that the distances shown on the revised site

plan were not consistent with the special permit conditions, and

directed the Browns to “fulfill the conditions as per the

a pproved [permit].”

47. The location of the Project shown on the revised site

plan (Browns’ Exhibit 9) is identical to the location of the

Project on the original site plan (Browns’ Exhibit 14, s heet 3) .

The only difference between the two site plans is t hat the

revised site plan in cludes two measurements not included on the

original site plan showing the s eaward corners of the new

elevated deck 258.41 feet and 268.41 feet seaward of the CCCL.

48. In order to comply with special permit condition No.

2, t he plans will have to be revised to eliminate those portions

of the Project that extend m ore than 265 feet seaward of the

CCCL.

49. The Project cannot be shifted fa rther landward because

it already abuts the 10 - foot setback line . T he necessary

revision s to the plan s can be done without shifting the Project

landward by eliminating a relatively small area of the d eck and

portions of the pool security fence.

50. The Browns’ ability to satisfy the Department's

special permit condition s by making minor modi fications to the

Project and not encroaching into the 10 - foot setback

distinguishes this case from the Negele case . 5

C. Dunes, Generally

51. A dune is a mound of s and lying upland of the beach

that has been deposited by natural or artificial means and that

is subject to fluctuations in configuration and location.

52. It is not necessary for a mound of sand to be covered

with vegetation to be considered a dune . However, v egetation

p romote s the growth of dune s and he lp s to stabilize dune s by

trapping w ind - blown sand.

53. The expert testimony in this case ( e.g. , Transcript,

Volume 1, at 147 - 48 , and Volume 3, at 26 - 28 ) identif ied three

different types of dunes -- si gnificant, primary, and frontal --

and described each type consistent with the statutory a nd rule

definitions quoted below.

54. A “significant dune” is a dune that has “sufficient

height and configuration or vegetation to offer protective

value.” Fla. Admin. Code R. 62B - 33.002(17)( a ) (emphasis

supplied) .

55. A “primary dune” is a significant dune that has

“sufficient along nshore continuity to offer protective value to

upland property.” Fla. Admin. Code R. 62B - 33.002(17)(b).

56. A “frontal dune” is the “first [dune] which is located

landward of the beach and which has sufficient vegetation,

height, continuity, and configuratio n to offer protective

value.” § 161.053(6)(a)1., Fla. Stat. (2004) (emphasis

supplied). 6

57. Thus, a primary dune need not have vegetation so long

as it has sufficient height, configuration, and continuity to

offer pro tective value, but a frontal dune must have vegetation

in addition to height, configuration, and continuit y that offers

protective value. The Browns’ contention to the contrary ( e.g. ,

Browns’ PRO, at 18) is rejected based upon the unambiguous

statutory an d rule language.

58. Dunes in S outhwest Florida are generally lower in

height than are dunes in other parts of the state. However, t he

dunes on Anna Maria Island, including the dunes on and in the

vicinity of the Br owns’ property , are substantial for S ou thwest

Florida.

D. The Beach - Dune System on and in the

Vicinity of the Browns’ Property

59. The beach on and in the vicinity of the Browns’

property has been relatively stable over at least the past

several decades.

6 0 . In recent years, t h e stability of the beach is due in

part to several beach nourish ment projects undertaken by Manatee

County pursuant to a shore protection plan authorized by the

federal government in 1975 for Anna Maria Island .

6 1 . The most recent project, completed in 2002, include d

the beach on the Browns’ property and advanced the MHWL

approximately 200 feet seaward .

6 2 . The shore protection plan is scheduled to continue

through 2025, which will help to ensure the continued stability

of the beach on and in the vicinity of the Br owns’ property.

6 3 . It is undisputed that a primary dune runs across the

Browns’ property. The parties disagree, however, as to whether

that dune is also the frontal dune.

6 4 . The location of the primary dune on the Browns’

property is best shown o n Ex hibit P5B by the highlighted yellow

lines. The seaward toe of the dune is in the vicinity of the

six - foot contour line on Lot 6 , and the landward toe of the dune

is in the vicinity of the six - foot contour line on Lot 5.

6 5 . The dune is several hundred feet in length. It

continues to the north of the Browns’ property onto Lot 10, and

it continues to the south of the Browns’ property seaward of

Pine Avenue. See Exhibit P5C and the Browns’ Exhibit 30B.

6 6 . The dune runs in a more northwesterly direction than

does the shoreline. As a result, the portion of the dune that

is seaward of Pine Avenue (to the s outh of the Browns’ property)

is further seaward than the portion of the dune on the Browns

property, which in turn, is further seaward of that portion of

the dune on Lot 10. Id.

6 7 . The width of the dune varies. In the area of the

proposed construction on the Browns’ property, the dune is 20 to

45 feet wide.

6 8 . The dune’s highest point on the Browns’ property is

7.8 feet. Its highest point on Lot 10 is 8.3 feet , and its

highest point in the area seaward of Pine Avenue is 9.4 feet .

69 . The dune is vegetated with sea oats, sea grapes, and

century plants, all of which are native salt - tolerant species.

Th e vegetation on that port ion of the dune on the Lot s 5 and 6

is dense and mature.

7 0 . I t is undisputed that t he dune, in its current state,

offers some protective value to upland prope rties, including the

Petitioners’ properties .

7 1 . The evidence does not quantify the extent of the

protection cur rently provided by the dune or the degree to which

that protection will be diminished a fter the P roject is

constructed on the dune . Neither Petitioners’ expert coastal

geologist nor the Browns’ expert coastal engineer did any

modeling regarding the level of storm ( e.g. , 5 - year, 10 - year,

etc.) that the dune provides protection against. The experts

agreed, however, that the dune would likely not provide any

significant protection against a 25 - year or 50 - year storm, which

would have storm surge s that exceed the height of the dune.

7 2 . There are dune features on the Browns’ property

seaward of the primary dune described above . Those features ,

which were characterized as "incipient dunes" by Petitioners'

expert coastal geologist, are delineated with red shad ing on the

Browns’ Exhibit 30B and can be seen in several of the

photographs received into evidence ( e.g. , Exhibits P2C and P2L,

and Browns’ Exhibit 17L) . Those dune features do not qualify as

frontal dunes because they are sparsely vegetated (if at all) ,

small in height (generally six inches or less) , lack continuity ,

and offer no real protective value .

7 3 . Because the primary dune described above is the most

seaward dune on the Browns’ property that has sufficient

vegetation, height, continuity, and co nfiguration to provide

protective value, it is the frontal dune. 7

E. Assessment of the Project’s Impacts

7 4 . An applicant for a CCCL must demonstrate that the

impacts of the project have been minimized and that the project

will not destabilize a primary or frontal dune or cause a

“significant adverse impact , ” as that phrase is defined in

Florida Administrative Code Rule 62B - 33.002(31)(b).

7 5 . The proposed construction at issue in this proceeding

will be located on the frontal dune and will result in th e

removal of all of the existing vegetation on th at dune within

the “footprint” of the new structure.

7 6 . The evidence was not persuasive that the removal of

that vegetation, although extensive, wi ll destabilize the dune

or result in a “ significant adver se impact ” to the beach - dune

system due to increased erosion by wind or water . Indeed, t here

will still be dense vegetation seaward of and to the north and

south of the new structure, and any vegetation outside of the

“footprint” of the Project that is im pacted by construction must

be mitigated in accordance with the special permit conditions

quoted above.

7 7 . The Project , as permitted, will not interfere with the

beach - dune system ’s recover y from coastal storms or cause the

dune t o become unstable or su ffer a catastrophic failure such

that its protective value to upland properties is significantly

lowered. Indeed, there was no credible evidence that the

Browns’ existing on - grade residence, which has existed since the

1920's on the same dune that the pro posed structure will be

located , has adversely impacted the recovery of the beach - dune

system or t he dune’s protective value.

7 8 . It is not necessary to evaluate the cumulative impacts

of the P roject because the re was no evidence of any similar

projects in the vicinity of the Browns’ property that have been

permitted or for which a permit application is pending . I ndeed,

the only credible evidence related to this issue involved the

Department’s denial of a permit for construction on the adjacent

Lot 10, w hich generates no cumulative impact concern s and does

not establish “precedent” in this case because the Department

evaluates each CCCL permit application on its own merits.

79 . The Project , as permitted, will not result in a net

removal of in situ sandy soils from the beach - dune system. The

33 cubic yards of so il that will be excavated for the Project

will be spread on the Browns’ seaward lots and, therefore, will

remain in the impacted beach - dune system.

8 0 . The Project will be elevated above the proje cted 100 -

year storm surge height and will meet applicable building code

requirements . As a result, structure - induced scour will be

minimized and will not cause any significant adverse impacts to

the beach - dune system or the upland properties .

8 1 . The Pro ject will be constructed in accordance with the

Florida Building Code, which will minimize the potential for

wind and waterborne missiles.

8 2 . The d epth of the swimming pool is limited to 4.5 feet

and its bottom elevation will be 3.8 feet above sea level / NGVD ,

which will minimize the amount of excavation necessary for the

pool. The permit requires the excavated material to be placed

“[i]n and around the proposed swimming pool area , ” so there will

be no net loss of material from the immediate area of the p ool.

8 3 . Even though the proposed construction will be located

on the frontal dune ( rather than a sufficient distance lan dward

of it), the P roject will not have a significant adverse impact

on the stability of the beach - dune system or preclude natural

sho re line fluctuations. Indeed, the fact that the Browns’

existing residence has apparently not adversely impacted the

stability of the beach - dune system or natural shoreline

fluctuations over the past 80 years undermines Petitioners’

contentions regarding t he potential adverse impacts of the

proposed structures.

8 4 . The line of continuous construction identified by the

Department during its review of the Browns’ permit application

was 244 feet seaward of the CCCL, which is consistent with the

findings in th e Negele case. Se e Exhibit P30, at 14 .

8 5 . The line of continuous constructi on is not a line of

prohibition, but rather it is only a factor that must b e

considered in conjunction with all of the other permitting

criteria in the statutes and the Departm ent’s rules .

8 6 . There is evidence indicating that the line of

continuous construction is more than 244 feet seaward of the

CCCL. For example, the a erial photograph received into evidence

as the Browns’ Exhibit 18A shows that the existing structures on

the adjacent properties ( particularly those to the south of Pine

Avenue and those to the north of Elm Avenue 8 ) are fa rther seaward

than the Browns’ residence , which itself is more than 244

seaward of the CCCL.

8 7 . Consistent with the aerial photograph, th e Browns’

Exhibit 30A depicts what is referred to a s the “existing line of

construction established by major structures in the area”

seaward of the Browns’ deck, which as note above, is

approximately 262 feet seaward of the CCCL.

8 8 . The Project, as per mitted, extends to a maximum of 265

feet seaward of the CCCL and, as reflected on Exhibit P5 B, a

majority of the proposed construction is seaward of the 244 - foot

line. However, t he Project (as proposed and as permitted) is

landward of the line depicted on the Browns’ Exhibit 30A.

89 . The location of the proposed construction is not

contrary to the Department’s rules even if the 244 - foot line

identified by the Department is correct because the Project is

in alignment with the Browns’ existing residence and because

there was no credible evidence that the existing residence has

been unduly affected by erosion.

9 0 . The native salt - tolerant vegetation ( e. g. , sea oats,

sea grapes, and century plants) impacted by the Project are

dense and mature, and the degre e of disturbance is significant.

However, as noted above, the re will still be dense vegetation

seaward of and to the north and south of the proposed

construction that will not be impacted and that will continue to

provide protective value for the dune sys tem and upland

properties .

9 1 . Florida Administrative Code Rule 62B - 33.005(11)

requires disturbances to the existing native salt - tolerant plant

communities to be “limited.” That rule also requires

construction to be located “where possible” in previously

disturbed areas.

9 2 . Locating the P roject in the previously disturbed areas

of Lot 5 rather than on the frontal dune would not increase

adverse impact to the beach - dune system and, indeed, may reduce

the impact by limiting disturbances to the existing n ative salt -

tolerant plant communities . However, the Project could not be

relocated into the disturbed areas because those areas are

considerably smaller than the “footprint” of the proposed

construction, particularly when the set - backs required by the

loc al code and the on - street parking restrictions are taken into

account .

9 3 . In sum, the preponderance of the evidence establishes

that despite the it s location on a portion of the densely

vegetated frontal dune, the Project satisfies the permitting

criteri a in the Department’s rules and will not result in

“ significant adverse impacts ” to the beach - dune system or upland

properties.

9 4 . In making th e foregoing finding s , the undersigned did

not overlook the contrary opinions of Petitioners’ expert

coastal geo logist. However, the undersigned found his testimony

regarding the impact of the Project on the beach - dune system to

be less persuasive the testimony of the Browns’ expert coastal

engineer on that issue .

F . Other Considerations

9 5 . The Project will not interfere with the public's

lateral beach access, nor will it interfere with public access

to the beach from Pine Avenue.

9 6 . The parties stipulated that the Project does not raise

any concerns relating to sea turtles.

9 7 . The Project will effectively block Schrutt’s view of

the Gulf of Mexico from her vacation home, and it will impair

the Youngs’ view of the Gulf of Mexico from their vacation home.

CONCLUSIONS OF LAW

9 8 . DOAH has jurisdiction over the parties to and subject

matter of this proceedi ng pursuant to Sections 120.569 and

120.57(1), Florida Statutes .

99 . The Department is t he state agency responsible for

regulating construction seaward of the CCCL pursuant to Part I

of Chapter 161, Florida Statutes, and Florida Administrative

Code Rul e Chapter 62B - 33.

10 0 . Petitioners have the burden to prove by a

preponderance of the evidence th at they have standing to

challenge the Department’s decision to issue the CCCL permit to

the Browns. 9 To do so, they must show:

1) that [they] will suffer in jury in fact

which is of sufficient immediacy to entitle

[them] to a section 120.57 hearing, and 2)

that [their] substantial injury is of a type

or nature which the proceeding is designed

to protect.

Agrico Chemical Co. v. Dept. of Environmental Regulati on , 406

So. 2d 478, 482 (Fla. 2d DCA 1981).

10 1 . The Project’s impact on Petitioners’ views of the

Gulf of Mexico is not the type of injury that this proceeding is

designed to protect. See Schoonover Children’s Trust v. Dept.

of Environmental Protection , Case No. 01 - 0765 (DOAH Apr. 26,

2001)(dismissing challenge to CCCL permit based upon allegations

of loss of view and economic value because “neither . . . is a

protected interest in a proceeding under Section 161.053,

Florida Statutes”). Therefore, that injury does not give

Petitioners standing to challenge the Browns' permit .

10 2 . The Project’s impact on the beach - dune system in the

vicinity of Petitioners’ properties is the type of injury that

this proceeding is designed to protect. See § 161.053(1)(a ),

(5)(a)3., Fla. Stat. I t is a close question whether Petitioners

have established that they will suffer the requisite “ injury in

fact which is of sufficient immediacy ” to give them standing on

that basis because the evidence does not quantify the extent to

which (if at all) the protective value of the frontal dune will

diminish a f ter the Project is constructed . However, it is

concluded that the evidence is sufficient to give at least

Schrutt standing in this proceeding because her property is

immediatel y landward of the frontal dune on which the Project

will be located.

10 3 . The Browns have the burden to prove by a

preponderance of the evidence that their permit application

should be granted. See Dept. of Transportation v. J.W.C. Co.,

Inc. , 396 So. 2d 778, 787 - 89 (Fla. 1st DCA 1981) .

10 4 . This is a de novo proceeding designed to formulate

final agency action rather than to review the Department’s

decision to issue t he CCCL permit, and that preliminary agency

action is not entitled to a presumption of correctness. Id.

See also Capeletti Bros., Inc. v. Dept. of General Services , 432

So. 2d 1359, 1363 (Fla. 1st DCA 1983) ( proceedings under Section

120.57(1), Florida Statutes, “are designed to give affected

parties an opportunity to change the agency's m ind” ).

10 5 . As a result, it i s immaterial that Schrutt was not

given notice of the Browns’ permit application as an adjacent

property owner and that she did not have an opportunity to

provide her input to the Department during its review of the

applicat ion . She (and the Youngs) had a full and fair

opportunity to present evidence at the final hearing to develop

the record upon which the Department will take final agency

action on the Browns’ permit application.

10 6 . The Department is authorized to issu e permits for

construction seaward of the CCCL if the permit is “clearly

justified” based upon the consideration of fa cts and

circumstances including the potential impacts of the proposed

construction on the beach - dune system. See § 161.053(5)(a)3.,

Fla. Stat.

10 7 . The rules adopted by the Department to implement

Section 161.053, Florida S tatute s, require the a pplicant to

provide the Department “ sufficient information pertaining to the

proposed project to show that any impacts associated with the

constru ction have been minimized and that the construction will

not result in a significant adverse impact. ” Fla. Admin. Code

R. 62B - 33.005(2).

10 8 . The application for a CCCL permit is required to

include, among other things:

Written evidence, provided by the

appropriate local governmental agency having

jurisdiction over the activity, that the

proposed activity, as submitted to the

[Department] does not contravene local

setback requirements or zoning codes and is

consistent with the state approved Local

Compre hensive Plan.

Fla. Admin. Code R. 62B - 33.008(3)(d). T hat rule has been

satisfied. See Findings of Fact , Part B .

1 09 . Florida Administrative Code 62B - 33.005 sets forth the

“general criteria” that must be satisfied by the permit

applicant . The rule incl udes the following criteria, which are

at issue in this case:

(3) After reviewing all information

required pursuant to this rule 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 similar activities already permitted

or for which a permit application is pending

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 additio nal similar

construction within the same fixed coastal

cell.

(b) Require siting and design criteria

that minimize adverse and other impacts and

provide mitigation of adverse 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, F.S., and this rule chapter are

met, including the following:

(a) The co nstruction 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 t he

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 fo r wind and waterborne missiles

during a storm;

(f) The activity will not interfere with

public access, as defined in Section

161.021, F.S. ; and

(g) The construction will not cause a

significant adverse impact to marine

turtles, immediately adjacent properties, or

the coastal system.

* * *

(6) 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

specific ally authorized by the permit.

(7) Swimming pools, wading pools,

waterfalls, spas, or similar type water

structures are expendable structures and

shall be sited so that their failure does

not have adverse impact on the beach and

dune system, any adjoin ing major structures,

or any coastal protection structure. Pools

sited within close proximity to a

significant dune shall be elevated either

partially or totally above the original

grade to minimize excavation and shall not

cause a net loss of material fr om the

immediate area of the pool. All pools

shall be designed to minimize any permanent

excavation seaward of the CCCL.

( 8) Major structures shall be located a

sufficient distance landward of the beach

and frontal dune to permit natural shoreline

fl uctuations, to preserve and protect beach

and dune system stability, and to allow

natural recovery to occur following storm -

induced erosion. . . . .

(9) If in the immediate area a number of

existing major structures have established a

reasonably cont inuous and uniform

construction line and if the existing

structures have not been unduly affected by

erosion, . . . the Department shall issue a

permit for the construction of a similar

structure up to that line, unless such

construction would be inconsist ent with

subsection 62B - 33.005(3), (4), (7), (8), or

(10), F.A.C.

* * *

(11) In considering project impacts to

native salt - tolerant vegetation, the

Department shall evaluate the type and

extent of native salt - tolerant vegetation,

the degree and extent of disturbance by

invasive nuisance species and mechanical and

other activities, the protective value to

adjacent structures and natural plant

communities, the protective value to the

beach and dune system, and the impacts to

marine turtle nesting a nd hatchlings. The

Department shall limit disturbances to

natural and intact salt - tolerant plant

communities, including beach and dune,

coastal strand, and maritime hammock

communities that significantly interact with

the coastal system. Construction sha ll be

located, where possible, in previously

disturbed areas or areas with non - native

vegetation in lieu of areas of native plant

communities when the placement does not

increase adverse impac t to the beach and

dune system. . . . . Special conditions

rel ative to the nature, timing, and sequence

of construction and the remediation of

construction impacts shall be placed on

permitted activities when necessary to

protect native salt - tolerant vegetation and

native plant communities . . . . .

* * *

Fla. Admin. Code R. 62B - 33.005.

11 0 . For purposes of the rules quoted above , th e phrase

“ s ignificant adverse impact” is defined as an impact to the

coastal system that measurably interferes with the system’s

functioning and is of such a magnitude that the it 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 dune system becomes unstable

or suffers catastrophic failure or the

protective value of the dune system is

significantly lowered; or

2. Cause a take, as defined in Section

370.12, F.S., unless the take is incidental

pursuant to Section 370.12(2)(f), F.S.

Fla. A dmin. Code R. 62B - 33.002(31) (b) .

11 1 . Neither the Department’s rules, nor the statutes

governing coastal construction expressly prohibit construction

on a frontal dune where, as here, the frontal dune is landward

of the 30 - year erosion line and the eviden ce establishes that

the proposed construction will not result in a significant

adverse impact to the beach - dune system and the other permitting

criteria are satisfied.

11 2 . The preponderance of the evidence ( e.g. , Findings of

Fact, Part E) establishes tha t the Project, as permitted,

satisfies the criteria in Florida Administrative Code Rule 62B -

33.005 ; that the Project’s impacts on the beach - dune system have

been minimized ; and that the Project will not result in a

“ significant adverse impact ,” as that phr ase is defined in

Florida Administrative Code Rule 62B - 33.002(31)(b) . Therefore,

the Browns’ permit application should be approved.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Department iss ue a final order

approving the Browns’ permit application subject to the general

and special permit conditions referenced in the Department’s

July 29, 2004, letter and permit.

DONE AND ENTERED this 15th day of August , 2005, in

Tallahassee, Leon County, Fl orida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of August, 2005.

ENDNOTES

1/ The Transcript , which was prepared by Diane Montana of

Montana Reporting Service, Inc., is less than ideal, at best.

I t is not consecutively numbered, but rather e ach volume begins

with a page 1. P ages 76, 77, 80, 100, 104, 105, 111 and 114 in

Volume 3 of the full - page version of the Transcript are missing.

The pages included in Volume 3 with those page numbers a re

copi es of the corresponding pages in Volu me 2. ( The condensed

version of the Transcript appears to include the correct pages

in Volume 3. ) There are also occasions in the Transcript where

statements are attributed to the undersigned even though they

were cle arly made by one of the lawyers (or vice versa); where

the lawyer doing the examination is not correctly identified;

and where statements made by the undersigned, the lawyers, and

witnesses do not appear to be fully or correctly recorded. The

parties file d an Errata Sheet Regarding Transcript on July 18,

2005, which identified some (but not all) of these errors, as

well as others.

2/ The location of the Gulf of Mexico depicted on the plat is

generally consistent with the shoreline change data in the

Brow ns’ Exhibit 18, which reflects that the MHWL in the area of

the Browns’ property -- i.e. , monument R - 7 -- was 316 f eet

further seaward in 1925 than it was in 2003.

3/ NGVD is the "National Geodetic Vertical Datum, as

established by the National Ocean Sur vey (formerly called 'mean

sea level datum, 1929')." Fla. Admin. Code R. 62B - 33.002(38).

4 / See Browns’ Exhibit 14, sheet 3; Browns’ Exhibit 9. It is

noted that Exhibit P5B shows the “footprint” of the proposed

construction set back only 9.38 feet from Schrutt’s lot in one

location and only 9. 83 feet in another location, rather than 10

feet as required by the local code . However, n o weight is given

to that evidence because it is effectively a collateral attack

on the local government’s determination th at the Project

complies with the applicable codes, which is beyond the scope of

this proceeding. See Pope v. Ray & Dept. of Environmental

Protection , OGC Case No. 03 - 1939, at 11 (DEP Apr. 15, 2004)

(Final Order arising out of DOAH Case No. 03 - 3981 , which

explains that the local government’s determination that the

proposed construction does not contravene the local codes “is an

issue that may not be collaterally attacked and litigated in

[the] administrative proceeding contesting the issuance of [a]

CCCL pe rmit”).

5 / See Exhibit P30 ( recommending denial of Negele’s CCCL permit

application based upon her failure to provide documentation of

the local government’s approval of the revised proposed

structure, which encro ached into the 10 - foot setback) , adopted

in pertinent part , OGC Case No. 99 - 1349 (DEP July 27, 2000) .

See also Pope , supra , at 10 (distinguishing the Negele case

where there was no evidence that the proposed project had been

“substantially revised” after it was approved by the local

government).

6/ All statutory references in this Recommended Order to the

2004 version of the Florida Statutes .

7 / In making this finding, the undersigned did not overlook the

opinion of the Browns’ expert coastal engineer regarding the

more seaward location of th e frontal dune based upon the

location of six - foot contour lines shown on the Browns’ Exhibit

30B. However, as the Depar tment’s expert coastal engineer

testified (Transcript, Volume 1, at 149), the location of the

frontal dune cannot be determined from th at exhibit alone and ,

as stated above, the more persuasive evidence establishe s that

the features associated with those contour lines (and the red -

shaded features on the Browns’ Exhibit 30B) do not have all of

the requisite characteristics of frontal dunes . See , e.g,

Transcript, Volume 3, at 37 - 38, 58 - 59 (describing Exhibit P2L),

61 (describing Ex hibit P2C); Browns’ Exhibit 17L.

8 / Elm Avenue is the unlabeled street that can be seen on the

aerial photograph between and parallel to Pine Avenue and

Sycamor e Avenue. See Exhibit P6.

9 / The Pre - hearing Stipulation (at page 10) identified

Petitioners’ standing -- i.e. , “whether Petitioners are

substantially affected by the Browns’ proposed project” -- as a

disputed issue in this proceeding . See also Transcr ipt, Volume

1, at 18 (opening statement of the Browns’ counsel). However,

the issue of Petitioners’ standing (or lack thereof) was not

expressly addressed in the parties’ PROs.

COPIES FURNISHED:

Mark S. Miller, Esquire

Department of Environmental Protec tion

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Mark A. Nelson, Esquire

Ozark, Perron & Nelson, P.A.

2808 Manatee Avenue, West

Bradenton, Florida 34205

William L. Hyde, Esquire

Fowler White Boggs B anker, P.A.

Post Office box 11240

Tallahassee, Florida 32302

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Greg Munson, General Coun sel

Department of Environmental Protection

The Douglas Building, 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 fro m 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.