05-000035 Atlantis At Perdido Association, Inc., And Spanish Key Condominium Owners` Association, Inc. vs. Bobby L. Warner, Joseph W., Helen M. Belanger, Donald Ray Stephens And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, June 9, 2005.

Summary: The application to replace two buildings with one building situated more landward, but still seaward of the Coastal Construction Control Line met the permit criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ATLANTIS AT PERDIDO )

ASSOCIATION, INC., and )

SPANISH KEY CONDOMINIUM )

OWNERS' ASSOCIATION, INC., )

)

Petitioners, )

)

vs. ) Case No. 05 - 0035

)

BOBBY L. WARNER, JOSEPH W., )

HELEN M. BELANGER, DONALD RAY )

STEPHENS and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

On April 6 and 7, 2005, a final administrative hearing

was held in this case in Tallahassee, Florida , before J.

Lawrence Johnston, Administrative Law Judge (ALJ), Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Bram D. E. Canter, Esquire

9554 Yashuntafun Road

Tallahassee, Florida 32311 - 4080

For Departme nt of Environmental Protection:

Mark S. Miller, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Applicants: Thomas G. Tomasello, Esquire

T homas G. Tomasello, P.A.

Post Office Box 13148

1107 Terrace Street

Tallahassee, Florida 32317 - 3148

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Environmental Protection (DEP) should issue Coastal

Construction Control Line (CC CL) Permit ES - 540 to Bobby L.

Warner, Joseph W. and Helen Belanger, and Donald Ray Stephens

(Applicants) for structures seaward of the CCCL on Perdido Key

in Escambia County, Florida.

PRELIMINARY STATEMENT

On March 12, 2004, Bobby L. Warner, Donald Ray S tevens,

and Joseph W. and Helen M. Belanger (Applicants) applied for a

permit to construct a 15 - unit, multi - family dwelling, swimming

pool, dune walkover, and driveway and parking area of concrete

pavers, and to place sand as part of a dune enhancement

pro ject on their property located in Escambia County (the

proposed BellaVista Project). As proposed, construction was

to follow the demolition of the existing structures on the

property and would occur seaward of the CCCL. The permit

application was designa ted DEP file number ES - 540. Following

compliance with DEP's request for additional information, the

application was deemed complete on July 13, 2004. While the

application was under review by DEP, Hurricane Ivan struck on

September 16, 2004, the beach an d dune system on Perdido Key

was severely impacted, and the existing structures on the

property were severely damaged. On October 11, 2004, DEP

issued a Final Order permitting the construction as proposed

(the Permit).

A timely Petition for Formal Heari ng challenging the

Permit was filed by Atlantis at Perdido Association, Inc.

(Atlantis) and Spanish Key Condominium Owners’ Association,

Inc. (Spanish Key), associations of the owners of the

residential units in the condominium buildings located on

propert y immediately contiguous and to the west and east,

respectively, of the proposed BellaVista project (together,

the Petitioners). The Petition was referred to DOAH on

January 5, 2005, where it was assigned to the ALJ, who issued

a Notice of Hearing on Janu ary 25, 2005, setting an

administrative hearing for April 6 - 8, 2005, in Pensacola,

Florida. On March 28, 2005, a Pre - Hearing Stipulation was

filed providing lists of witnesses and exhibits, agreed and

disputed issues of facts and law, and statements as to the

parties' respective positions. On March 29, 2005, an Amended

Notice of Hearing was issued changing the hearing location to

Tallahassee, Florida. The hearing was held and completed on

April 6 and 7, 2005.

At the hearing, the Applicants called the f ollowing

witnesses: David Lamar, P.E., a civil engineer; Michael

Walther, P.E., a coastal engineer; Boyd Bond, a representative

of Atlantis; and Susan Long, a representative of Spanish Key.

Applicants' 1 Exhibits 1(A - C), 2 - 3, 6(A - B), 7 - 10, 11(A - B),

12(A - B ), 13 - 20, 23(A - F), 30, and 32 were admitted into

evidence. DEP called Anthony McNeal, P.E., Administrator of

DEP's CCCL Program, and had DEP Exhibits 1 and 2 admitted into

evidence. Petitioners called the following witnesses: Jule

Herbert, a representat ive of Atlantis; Susan Long; Boyd Bond;

Kenneth Craig, P.E., a coastal engineer; Anthony McNeal, P.E.;

Rolando Gomez, an engineer and CCCL permit processor with DEP;

and Phillip Sanders, a Beach Erosion Control Project Manager

for DEP and former Area Engin eer and CCCL permit processor

with DEP. Petitioners' Exhibits 3, 6, 7, 10 - 16, 18(A - E), and

19 were admitted into evidence.

After presentation of evidence, a Transcript of the final

hearing was ordered, and the parties were given ten days from

the filing of the Transcript in which to file proposed

recommended orders (PROs). The Transcript was filed on May 3,

2005, and the parties' timely PROs have been considered.

FINDINGS OF FACT

Undisputed Facts

1. Petitioners stated in the Pre - Hearing Stipulation and

confirmed at the hearing that adverse impacts to marine

turtles are not at issue in this proceeding.

2. The Petition did not allege that the structures

authorized by the Final Order are or would be seaward of the

seasonal high - water line now or within thirty (30) years of

October 2004.

3. The Petition did not allege that the structures would

interfere with public access.

Project Description

4. Applicants own two parcels of property comprising

1.19 acres on Perdido Key, Escambia County, Florida, b etween

DEP monuments R - 1 and R - 2 (the Property). The DEP permit file

indicates that the eastern parcel is owned by Bobby Warner and

the western parcel is owned by Joseph and Helen Belanger.

Portions of the Property extend from the south right - of - way of

P erdido Key Drive on the north to the mean high - water line

(MHWL) of the Gulf of Mexico on the south.

5. There are two existing multi - family dwellings on the

Property. The dwelling on the western parcel owned by the

Belangers has two units, while the dwel ling on the eastern

parcel owned by Ms. Warner has four units. Their overall

dimensions are approximately 51.2 feet by 54.4 feet for the

easterly structure and 44.1 feet by 31 feet for westerly

structure, not including decks or stairs. The seaward limit s

of the structures are approximately 285 feet and 303 feet

landward of the MHWL.

6. Applicants propose to demolish the two existing

multi - family structures and construct a 15 - unit, multi - family

dwelling (the Dwelling) measuring 70 feet in the shore no rmal

direction by 80 feet in the shore - parallel direction on piles

with understructure parking, a 38.1 - foot by 33.3 - foot swimming

pool on the seaward side of the Dwelling, a deck, a five foot

wide dune crossover seaward of the Dwelling, a driveway and

park ing area of concrete pavers, and a dune enhancement

project (Project). The Project, known as BellaVista, would

extend as much as 193 feet seaward of the current (the 1986)

CCCL.

7. The Dwelling will be constructed in conformance with

the structural re quirements of the Florida Building Code

(FBC), which are applicable to structures located seaward of

the CCCL, as set forth in Section 3107, FBC. The Dwelling

will be elevated on and anchored to a pile foundation which

will withstand all reasonably antici pated erosion, scour, and

loads resulting from a 100 - year storm, including wind, wave,

hydrostatic and hydrodynamic forces acting simultaneously with

typical dead loads. Its lowest horizontal structural member

will be elevated above the 100 - year storm ele vation as

determined by DEP in the report entitled “One - Hundred Year

Storm Elevation Requirements for Major Habitable Structures

Located Seaward of a Coastal Construction Control Line.” The

100 - year storm elevation requirement for the Dwelling is .4

fe et NGVD, 2 while the elevation for the lowest structural

member of the Dwelling is feet NGVD, 13.4 feet above the

elevation requirements of the FBC.

8. The most seaward point of the foundation of the

Dwelling is located 18 feet landward of the most seaward point

of the foundation of the existing structure on the eastern

parcel and is landward of the seaward side of both of the

existing dwellings. The proposed pool and pool deck, which

extends seaward of the Dwelling's foundation, also are located

la ndward of the seaward side of the existing dwelling on the

eastern parcel and approximately in the same location as all

but the extreme eastern part of the existing building on the

western parcel, which extends a few more feet seaward.

9. The seaward s ide of the Dwelling is 306 feet landward

of the MHWL. DEP very commonly issues permits for structures

closer to the MHWL ( i.e. , more seaward) than the Project.

Many structures are permitted within 100 to 150 feet of the

MHWL, and some within 60 feet.

P roperty Description

10. Before Hurricane Ivan struck in mid - September 2004,

there was an extensive, well - established, healthy, growing and

well - vegetated dune system on the Property seaward of the

Project that extended to the east and west in front of an d

beyond the Atlantis and Spanish Key condominiums. This

continuous dune system consisted of numerous mounds of sand

ranging in height from 6 or 7 to 11 feet above MHWL, and

established a dune line seaward of the existing structures on

the Property and th e Project. The more seaward of these dunes

were the frontal dunes. Before Ivan, the vegetation line was

approximately 150 feet seaward of the existing structures on

the Property.

11. Petitioners argue that there is a definite and

unique primary dune line running straight between points where

historic survey data indicate that a primary dune existed

approximately 223 feet seaward of DEP range monument R - 1 and

270 feet seaward of monument R - 2. If there were such a dune

line, the line would run through the BellaVista Project. But

the evidence does not support an inference that such a primary

dune line existed between those two points. Rather, the more

persuasive evidence was that the dune system on Perdido Key

consisted of dune mounds with an irregular pattern, not a

continuous dune line or bluff.

12. At the time Ivan struck Perdido Key and the

Property, there was no primary dune or other dune beneath or

landward of the two existing structures on the Property.

Probably, the structures eliminated and then prevented the re -

formation of dunes at that location.

13. Ivan was a major magnitude storm with a storm surge

of 15 - 20 feet, which exceeded the predicted storm surge of a

100 - year storm in Escambia County. The existing dwellings on

the Property survived the storm but were severely damaged.

Ivan destroyed all of the vegetation that existed on the

Property and on the beach dune system to the east and west.

Ivan also destroyed all of the dunes on the Property and on

the beaches to the east and wes t of the Property.

14. Towards the end of March 2005, Escambia County

placed a sand berm on the beach in front of the existing

structures on the Property and along the beach to the east and

west of the Property. The placement of the sand was partially

funded by the Federal Emergency Management Agency (FEMA) and

is meant to provide some immediate protection for upland

structures, especially those that have been damaged or are

vulnerable to damage, from higher - frequency storms.

Initially, it would provid e less protection from lower -

frequency storms and, obviously, would be destroyed by a storm

like Ivan. However, depending on future storm events, it

would provide some protection and could contribute to recovery

of the beach and dune system over time.

1 5. The FEMA berm is located just seaward of the

BellaVista Project site. It is located more landward to the

east and west of the BellaVista Property and bends seaward

around the existing buildings on the Project site. Moving

from east to west, the berm begins to bend seaward at about

the middle of the Spanish Key building and then, after

crossing close in front of the existing buildings on the

BellaVista site, bends back landward again at about the middle

of the Mediterra building, which is adjacent to a nd west of

the Atlantis building. The bowed - out segment of the FEMA berm

in front of the existing buildings on the BellaVista site will

be more susceptible to storm erosion than the segments to the

east and west that are more landward.

16. Petitioners argue that the FEMA berm was designed

and intended to follow the supposed historic primary dune line

but had to bend around the existing buildings on the

BellaVista site because those buildings straddled the line.

But, again, the suggested inference of a historic primary dune

line is not supported by the evidence. In addition, the

evidence does not support the inference that the placement of

the FEMA berm followed a pre - selected line, but rather

suggests that its placement was dictated by its purpose to

p rovide some protection for damaged and vulnerable structures

and properties.

17. The top of the FEMA berm has an approximate height

of 13 feet NGVD, or about 6 feet above grade, which is

comparable in height to the dunes that existed before Ivan.

From the landward toe, the berm rises approximately 6 feet at

a slope of 2:1. The crest or top of the berm is 8 feet wide.

The berm then slopes approximately 40 feet downward to its

seaward toe. The overall width of the berm is 58 feet in the

north - south dir ection.

18. The FEMA berm is a mound of loose, sand - sized

sediment which lies upland of the beach and was deposited by

an artificial mechanism. It is subject to fluctuations in

configuration and location. As such, the sand berm is a dune,

as defined b y Florida Administrative Code Rule 62B - 33.002(17).

See Conclusion of Law 48, infra . The FEMA dune is now the

only dune on the Property or adjacent properties. The crest

of the FEMA dune is approximately 30 feet seaward of the

Project’s pool and deck. A s such, the entire Project is

landward of the toe of the FEMA dune. (Applicants modified

their application to reflect the FEMA dune through admission

of Applicants' Exhibits 9 and 10 into evidence.)

19. The dune enhancement project proposed by the

Applic ants and required by the Final Order is located

partially landward of the FEMA dune and partially atop the

landward slope of that dune. The dune enhancement project

will enhance the FEMA dune and expand the width of the dune

approximately 10 - 15 feet on th e landward side, making the

crest of the new dune on the Property 25 feet wide at an

elevation of 13 feet.

20. The dry sandy beach on the Property and in the area

to the east and west remains wide even after Ivan. The

existing structures on the Propert y are now approximately 288

feet landward of the MHWL.

21. Survey data taken at monuments R - 1 and R - 2 show that

the shoreline at these monuments has historically accreted

from the 1860s to the present. The rate of accretion

increased from 1974 to 1996. Between 1985 and 1996, the MHWL

at R - 2 moved 100 feet seaward, a rate of approximately 6

feet/year. Similarly, between 1985 and 1996, the MHWL at R - 1

advanced 80 feet, a rate of approximately 7 feet per year.

Even if the data in the vicinity of these mo numents indicate

deceptively high rates of accretion because there were no data

points in Alabama to include in the averaging, the accretional

trend is clear from the evidence. The Project will not affect

this accretional trend.

22. Along with accretio n, the dune system in the area of

the Property also was growing prior to Ivan, and dune recovery

seaward of the new FEMA dune is expected. The primary dunes

that existed pre - Ivan on the adjacent properties immediately

seaward of the Spanish Key and Atlanti s condominiums, which

included dunes with elevations of 16 - 17 feet, will take 25 - 50

years to rebuild through natural processes, such as aeolian

(wind - driven) transport. Some may never recover to previous

elevations. The lower dunes, such as those that ex isted on

the Property, may recover in ten years. Since the Project is

located landward of the FEMA dune, it will not interfere with

post - storm recovery of the dune system.

Line of Construction

23. Petitioners contend that there is a reasonably

continuo us and uniform construction line seaward of the

current (the 1986) CCCL "in the immediate contiguous or

adjacent area" and landward of the proposed Project -- namely,

along the line of the former (the 1975) CCCL. In fact, such a

line of construction exists extending approximately 500 feet

west, and approximately 1,500 feet east, of the proposed

Project, but no farther, as there are structures more seaward

beyond those points. In addition, in making their "line of

construction" argument, Petitioners ignore t he existing

structures on the proposed Project site.

24. The line of construction is not a prohibition in and

of itself. Rather, it is only one of several criteria that

must be balanced in determining whether or not to approve a

CCCL permit applicatio n.

25. The line of construction is a factor for new

construction but not for rebuilding or relocation of a

building landward. It is the position of DEP and Applicants

that the Project qualifies as a rebuilding or relocation and

that "line of constructi on" does not apply.

26. Regardless whether the "line of construction"

applies, it must be considered, weighed, and balanced against

all of the other application processing factors. See

Conclusion of Law 56, infra .

27. Applicants contend that protect ion of the beach dune

system through application of the line of construction

provisions is not supported by the Petitioners’ own testimony.

They argue that Susan Long, testifying on behalf of and as an

agent of Spanish Key, admitted that Spanish Key would not

oppose the project at its proposed location were it only two

stories tall and would not oppose the repair of the existing

structures. Likewise, they argue Boyd Bond, testifying on

behalf of and as an agent of Atlantis, stated that Atlantis

would not oppose the repair of the two existing multi - family

dwellings of the Property. Actually, both testified that they

would not oppose those undertakings if Applicants were

entitled to permits for them.

Significant Adverse Impacts

28. Florida Administrati ve Code Rule 62B - 33.002(31)

defines various degrees and kinds of impacts for purposes of

CCCL permitting:

"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 a s 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 th e 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 suffe rs catastrophic failure or the

protective value of the dune system is

significantly lowered; or

2. Cause a take, as defined in Section

370.12(1), F.S., unless the take is

incidental pursuant to Section

370.12(1)(f), F.S.

(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 latera l beach

access.

(Other applicable rule definitions are set out in Conclusion

of Law 48, infra .)

29. Only "significant adverse impacts" (not all impacts

or even all adverse impacts) have to be eliminated before DEP

may issue a CCCL permit.

Vegetatio n

30. Vegetation on the Property itself was limited pre -

Ivan due to development, and Ivan largely destroyed what

vegetation there was on the Property. As a result, any

disturbance of any existing vegetation during construction

will be de minimis . In addi tion, since there no longer are

any dunes on the Project site, no destabilization of any dune

or any "significant adverse impact" to the beach and dune

system due to increased erosion by wind or water will result

from construction of the Project.

31. To the contrary, Applicants have submitted a dune

enhancement plan tailored for site conditions as they now

exist post - Ivan. Special Condition 9 of the proposed Permit

requires that Applicants plant soil - stabilizing native grasses

throughout the dune enhanc ement area in staggered rows 18

inches apart and also requires the achievement of a given

survival rate. The dune enhancement plan includes planting

which constitutes a significant improvement to the native

vegetation situation on the site. The Project w ill not

interfere with the re - emergence of vegetation seaward of the

Project.

Disturbance of In Situ Sandy Soils

32. Construction of the Project will not result in the

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 structure s. The only excavation will

be for foundation pilings and the swimming pool. Obviously,

excavation for the foundation will be filled with the pilings,

and none of the sand excavated for that purpose will be

removed from the site. All the sandy material excavated for

the pool will be placed on site seaward of the structures and

the CCCL within the dune enhancement area and in the immediate

area of the construction. In addition, the Project will

result in the net addition of 658 cubic yards of sand to the

beach dune system seaward of the CCCL as part of required

beach enhancement. The additional sand to be placed as part

of the dune enhancement plan will, in fact, enhance the

ability of the system to resist erosion during a storm and

will raise existing l evels of storm protection to upland

properties and structures.

Structure - Induced Scour

33. Construction of the Project 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." Scouring around piles in a

storm is very localized and miniscule and would extend no more

than two feet away from the piles and will not reach adjacent

properties. Any storm - induced scour will be less than 0.02%

of the erosion caused by a 100 - year storm event. Scour from

the proposed structures will not measurably affect shoreline

change rates. Scour caused by the proposed structures will

not significantly interfere with beach dune system's ability

to recover from a c oastal storm. The minimal scour caused by

the Project will not disturb topography or vegetation such

that the dune system becomes unstable or suffers catastrophic

failure.

Missiles

34. The Project has been designed to minimize the

potential for wind a nd waterborne missiles during a storm.

The Dwelling will be constructed in conformance with the

structural requirements of the FBC for structures located

seaward of the CCCL, as set forth in Section 3107, FBC. The

Dwelling will be elevated on and anchore d to a pile foundation

which will withstand all reasonably anticipated erosion,

scour, and loads resulting from a 100 - year storm, including

wind, wave, hydrostatic, and hydrodynamic forces acting

simultaneously with typical dead loads. As designed, it wil l

not interact with the beach/dune system in storm events and

will allow the free movement of sand, water, storm surge, and

waves under the building. In the event of another hurricane,

storm surge and waves would pass under the Dwelling and not

impede suc h natural processes. Conformance with the FBC

minimizes missile potential. Petitioners' coastal engineering

expert witness conceded that he did not anticipate missiles

would adversely affect the Petitioners’ property or

structures. No evidence was offer ed to show that missiles

would adversely affect Petitioners’ property or structures or

that the Project would not comply with the applicable FBC

structural requirements. Reflective wave energy from the

Project will not impact the Petitioners’ property or

structures and would not cause a significant adverse impact.

There was no evidence of missile damage to Petitioners’

properties from the existing structures even during Hurricane

Ivan. To the extent that any threat of missile damage to

Petitioners’ struc tures exists, a more landward location of

the Project would increase the threat.

Minimization and Mitigation

35. Initially, Applicants proposed a larger and more

seaward project. Through negotiations, Applicants agreed to

reduce the size of the proje ct and move it more landward. DEP

and the Applicants characterize this as minimizing the adverse

impacts of the Project. However, "minimization" of this kind

can be illusory if an applicant attempts to manipulate it by

making a "throw - away" first proposa l (not to imply that

Applicants manipulated minimization in this case, which cannot

be determined from the record).

36. Siting and design criteria have minimized adverse

impact. These include construction of the Dwelling: (a) on

piles with a design ele vation above the storm - surge and storm

wave elevations; (b) 306 feet landward of the MHWL and the

active beach; (c) behind the new FEMA dune; (d) as far

landward as possible for the design; and (e) 18 feet landward

of the existing structures on the Propert y.

37. Placing material excavated for the pool in front of

the pool and in the immediate area of construction has

minimized the impacts of the pool. No evidence was offered to

show that the impacts of the pool have not been minimized.

38. The Permit has been conditioned to require dune

enhancement, planting of native, salt - tolerant vegetation, and

maintenance of such vegetation as mitigation against adverse

impacts associated with the Project.

Beach Dune Stability and Natural Recovery

39. The Pr oject is located a sufficient distance

landward to permit natural shoreline fluctuations, to preserve

and protect beach and dune system stability, and to allow

natural recovery to occur following storm - induced erosion. It

is located landward of the fronta l dunes that existed before

Ivan and landward of the frontal dune that now exists (the

FEMA dune).

40. The Project will not affect existing shoreline

change rates. The Project is landward of where an extensive

dune system existed before Ivan and that l andward location

means it will not interfere with the recovery of those dunes.

There is a great expanse of area for dune recovery. It is

anticipated that vegetation seaward of the Project will re -

emerge by this coming summer. Construction of the Project

will not prevent the dune system from recovering and providing

protection.

41. Petitioners' primary argument against the Permit,

other than its "line of construction" argument, is that dunes

will not recover under the footprint of the Dwelling, where

t hey otherwise "want to" and would be expected to recover to

some extent, providing some additional dune stability and

protection, all other things being equal ( i.e. , if

minimization and mitigation were the same), if the Permit were

to be denied and Applica nts forced to propose a smaller, more

landward project.

Cumulative Impacts

42. The Project will not have an unacceptable cumulative

impact. No evidence was offered to show that an unacceptable

adverse cumulative impact in terms of existing or other

pr oposed projects will result.

Positive Benefits of Project

43. The Project will have a net positive benefit on the

beach - dune system and adjacent properties and improves

existing conditons. Demolition of the two existing structures

on the Property wil l decrease the likelihood of wind and

waterborne missiles since the new Dwelling will comply with

the structural wind and water load requirements of the FBC.

44. All of the structures to be constructed under the

Permit will be landward of the seaward por tions of the

existing structures. The new Dwelling will be 18 feet

landward of the seaward - most point of the existing structures.

This landward relocation will allow for more dune recovery

seaward of the Project than could occur under existing

conditions and mean that the Project will have less impact

than the existing structures. Since the beach is an

accretional beach and the shoreline has historically advanced

seaward, it is expected that the seagrasses and dunes will

recover in the area. The area of the Dwelling seaward of the

old CCCL is less than the area of the existing structures.

45. The Applicants will implement a dune enhancement

plan that includes the placement of 658 cubic yards of sand on

the beach and the successful planting of native vegetation on

the dune. This dune enhancement plan will benefit the beach

dune system, will benefit the new dune, and will increase

protection to upland properties.

CONCLUSIONS OF LAW

46. Section 161.053, Florida Statutes (2004), provides

in pertinent part:

(1)(a) The Legislature finds and declares

that the beaches in this state and the

coastal barrier dunes adjacent to such

beaches, by their nature, are subject to

frequent and severe fluctuations and

represent one of the most valuable natural

resource s of Florida and that it is in the

public interest to preserve and protect

them from imprudent construction which can

jeopardize the stability of the beach - dune

system, accelerate erosion, provide

inadequate protection to upland structures,

endanger adjace nt properties, or interfere

with public beach access. In furtherance

of these findings, it is the intent of the

Legislature to provide that the department

establish coastal construction control

lines on a county basis along the sand

beaches of the state f ronting on the

Atlantic Ocean, the Gulf of Mexico, or the

Straits of Florida. Such lines shall be

established so as 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 oth er

predictable weather conditions. However,

the department may establish a segment or

segments of a coastal construction control

line further landward than the impact zone

of a 100 - year storm surge, provided such

segment or segments do not extend beyond

th e landward toe of the coastal barrier

dune structure that intercepts the 100 - year

storm surge. . . . .

* * *

(2)(a) Coastal construction control lines

shall be established by the department only

after it has been determined from a

comprehensive en gineering study and

topographic survey that the establishment

of such control lines is necessary for the

protection of upland properties and the

control of beach erosion. . . . .

* * *

(5) Except in those areas where local

zoning and building code s have been

established pursuant to subsection (4), 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

excavati on or erection of a structure at

any coastal location as described in

subsection (1) 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 con cerning

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 effect s of any

proposed structures or activities upon such

beach - dune system, which, in the opinion of

the department, clearly justify such a

permit.

(b) If in the immediate contiguous or

adjacent area a number of existing

structures have established a reason ably

continuous and uniform construction line

closer to the line of mean high water than

the foregoing, and if the existing

structures have not been unduly affected by

erosion, a proposed structure may, at the

discretion of the department, be permitted

alo ng such line on written authorization

from the department if such structure is

also approved by the department. However,

the department shall not contravene setback

requirements or zoning or building codes

established by a county or municipality

which are equal to, or more strict than,

those requirements provided herein. This

paragraph does not prohibit the department

from requiring structures to meet design

and siting criteria established in

paragraph (a) or in subsection (1) or

subsection (2).

* * *

(13)(a) Notwithstanding the coastal

construction control requirements defined

in subsection (1) or the erosion projection

determined pursuant to subsection (6), the

department may, at its discretion, issue a

permit for the repair or rebuilding within

t he confines of the original foundation of

a major structure pursuant to the

provisions of subsection (5).

Alternatively, the department may also, at

its discretion, issue a permit for a more

landward relocation or rebuilding of a

damaged or existing struc ture if such

relocation or rebuilding would not cause

further harm to the beach - dune system, and

if, in the case of rebuilding, such

rebuilding complies with the provisions of

subsection (5), and otherwise complies with

the provisions of this subsection.

(b) Under no circumstances shall the

department permit such repairs or

rebuilding that expand the capacity of the

original structure seaward of the 30 - year

erosion projection established pursuant to

subsection (6).

(c) In reviewing applications for

re location or rebuilding, the department

shall specifically consider changes in

shoreline conditions, the availability of

other relocation or rebuilding options, and

the design adequacy of the project sought

to be rebuilt.

(d) Permits issued under this su bsection

shall not be considered precedential as to

the issuance of subsequent permits.

47. Florida Administrative Code Rule 62B - 33.005 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) Aft er 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

eff ects. 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 o ther 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 appl ication 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) Requi re 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 stan dards,

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 construction will not result in

removal or destruction of native vegetation

wh ich 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 s torm

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 - in duced 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 in terfere 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.

* * *

(8) Major structures shall be located a

sufficient distance landward of the beach

and frontal dune to permit natural

shoreline fluctuations, 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 continuous and uniform

construction line and if the existing

structures have not been unduly affected by

erosion, except where not allowed by the

requirements o f Section 161.053(6), F.S.,

and this rule chapter, the Department shall

issue a permit for the construction of a

similar structure up to that line, unless

such construction would be inconsistent

with

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

(10), F.A. C.

48. In addition to the rule definition of "impacts" set

out in Finding of Fact 28, supra , Florida Administrative Code

Rule 62B - 33.002 contains several other definitions of terms

that are important to determining the legal issues in this

case:

(1 7) "Dune" is a mound, bluff, or ridge

of loose sediment, usually sand - sized

sediment, lying upland of the beach and

deposited by any natural or artificial

mechanism, which may be bare or covered

with vegetation and is subject to

fluctuations in configurat ion and location.

(a) "Significant dune" is a dune which

has sufficient height and configuration or

vegetation to offer protective value.

(b) "Primary dune" is a significant dune

which has sufficient alongshore continuity

to offer protective value to upland

property. The primary dune may be separated

from the frontal dune by an interdunal

trough; however, the primary dune may be

considered the frontal dune if located

immediately landward of the beach.

* * *

(47) "Rebuilding" is a substantia l

improvement of the existing structure as

defined in Section 161.54, F.S.

(48) "Repair" is the restoration of a

portion of an existing structure, including

the foundation of the structure, to its

original design or an equivalent structural

standard. Re pair of a structure assumes

that a significant portion of the

structure, including its foundation,

remains intact.

(Section 161.053(6)(a)1., Florida Statutes (2004), includes a

definition of the term "frontal dune," but by its terms the

definition only ap plies to Subsection (6) of the statute,

which is not applicable to this case.)

Landward Rebuilding or Relocation

49. The Petitioners contend that the Applicants and DEP

rely entirely and inappropriately on the application of

Section 161.053(13), Florida Statutes (2004), to justify

issuance of the Permit. The Applicants and DEP deny relying

entirely on that statute but contend nonetheless that the

statute does apply and supports issuance of the Permit. In

support of their position that the statute appli es, the

Applicants and DEP invoke the doctrine of deference to

administrative statutory interpretation. See Department of

Environmental Regulation v. Goldring , 477 So. 2d 532, 534

(Fla. 1985); Department of Natural Resources v. Wingfield

Development Corp. , 581 So. 2d 193, 197 (Fla. 1st DCA 1994);

Island Harbor Beach Club, Ltd. v. Department of Natural

Resources , 495 So. 2d 209, 214 (Fla. 1st DCA 1986). The

Petitioners counter that words or phrases used in statutes

should be given their common and ordinary meaning, citing

Donato v. American Tel. & Tel. Co. , 767 So. 2d 1146 (Fla.

2000). They also cite the rule of statutory interpretation

that "exceptions or provisos should be narrowly and strictly

construed.” Samara Dev. Corp. v. Marlow , 556 So. 2d 1097,

1 100 (Fla. 1990).

50. Regarding the doctrine of deference to

administrative statutory interpretation espoused by the

Applicants and DEP, there was no clear evidence that DEP

interprets Section 163.053(13), Florida Statutes (2004), in

the manner suggested under the precise facts at issue in this

case. As to the facts of this case, DEP's statutory

interpretation will be formulated during this proceeding and

announced in its final order. See Hamilton County Board of

County Commissioners v. Dept. of Environ mental Reg. , 587 So.

2d 1378, 1387 (Fla. 1st DCA 1991); Beverly Enterprises - Florida

v. Dept. of Health, etc. , 573 So. 2d 19, 23 (Fla. 1st DCA

1990); Dept. of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778,

786 - 787 (Fla. 1st DCA 1981); McDonald v. Dept. of Ban king and

Finance , 346 So. 2d 569, 584 (Fla. 1st DCA 1977)

(administrative proceeding is de novo and is intended "to

formulate final agency action, not to review action taken

earlier and preliminarily"). Clearly, DEP in its final order

may disagree with in terpretations of statutes contained in a

Recommended Order. See § 120.57(1)(l), Fla. Stat. (2004). If

DEP's ultimate statutory interpretation is erroneous, the

interpretation would be subject to reversal on appeal. See §

120.68(7)(d), Fla. Stat. (2004).

51. It is concluded that the Petitioners' interpretation

of Section 161.053(13) is correct insofar as the Applicants

clearly do not seek "the repair or rebuilding within the

confines of the original foundation " (emphasis added) but is

incorrect insofar as the Applicants seek "a more landward

relocation or rebuilding of a damaged or existing structure."

The statute does not clearly prohibit the resulting landward

structure(s) from being different from the original(s), even

so different as to constitute "redevelopment." To the

contrary, paragraph (c) of Subsection (13) states that "the

availability of other relocation or rebuilding options" should

be considered.

52. The definition of "rebuilding" in Florida

Administrative Code Rule 62B - 33.002(47) does not control the

definition of the term as used in Section 161.053(13), Florida

Statutes. Rather, that definition applies to additions to

existing structures and whether those additions must meet the

structural requirements of Florida Administrative Code Rule

62B - 33.007. See Fla. Admin. Code R. 62B - 33.007(4)(c).

Moreover, DEP no longer has jurisdiction over structural

matters. See Fla. Admin. Code R. 62B - 33.007(1).

53. It is concluded that Subsection (13) applies to the

BellaVista project as "a more landward relocation or

rebuilding of a damaged or existing structure."

54. Application of Subsection (13) does not

automatically result in issuance of the Permit in this case.

Subsection (13) still requires the exercise of DEP's

discretion and only res ults in issuance of a permit "if such

relocation or rebuilding would not cause further harm to the

beach - dune system, and if, in the case of rebuilding, such

rebuilding complies with the provisions of subsection (5), and

otherwise complies with the provisi ons of this subsection."

"Line of Construction" Provisions

55. The Applicants and DEP suggest, and Petitioners

fear, that application of Subsection (13) negates application

of the "line of construction" provisions under Section

161.053(5)(b), Florida St atutes (2004), and Florida

Administrative Code Rule 62B - 33.005(9). But, as will be seen,

application of the "line of construction" provisions also do

not automatically prohibit issuance of the Permit.

56. The Applicants explicitly assert and DEP implie s

that Petitioners are taking the position that a "line of

construction" exists and prohibits the Applicants from

building seaward of that line. The Applicants and DEP contend

that no such "line of construction" exists but that, if it

did, it would be a b asis for allowing construction up to the

"line of construction" but would not prohibit construction

seaward of the "line of construction." Petitioners maintain

that a "line of construction" exists but deny ever taking the

position that the "line of constr uction" is a "line of

prohibition," conceding that it only is a factor to be

considered before permitting construction seaward of the line

of construction under Section 161.053(5), Florida Statutes

(2004), and Florida Administrative Code Rule 62B - 33.005. See

Northern Trust Bank of Florida, N.A. v. Susan Negele et al. ,

DEP OGC Case No. 99 - 1349, DOAH Case No. 99 - 3613, 2000 WL

33909859 (DEP Final Order July 27, 2000; DOAH Recommended

Order June 13, 2000); Kelly Cadillac, Inc. et al. v. Resort

Hospitality Ente rprises, Ltd. , DEP OGC Case No. 97 - 0081, DOAH

Case No. 97 - 9342 (DEP Final Order March 6, 1998; DOAH

Recommended Order January 30, 1998). 3

57. As found, disregarding the existing structures on

the BellaVista project site, there appear to be "in the

immed iate contiguous or adjacent area a number of existing

structures [that] have established a reasonably continuous and

uniform construction line closer to the line of mean high

water than the foregoing [1986 CCCL]." 4 Up to approximately

500 feet to the west and 1,500 feet to the east, the "line of

construction" approximates the 1975 CCCL, and these structures

have not been unduly affected by erosion, even as a result of

Ivan. However, in this case, under the "landward rebuilding

or relocation" provisions, t he existing structures on the

BellaVista site cannot be disregarded. In addition and in any

event, as seen, the "line of construction" in the "immediate

contiguous or adjacent area" is not a "line of prohibition" of

permitting a structure sited seaward of that line.

General Permit Criteria

58. As can be seen, the "landward rebuilding and

relocation" and "line of construction" provisions do not

appear to dispense with consideration of the general permit

criteria, which still must be considered.

59. It has been found, and must be concluded, that the

general permit criteria have been met and that the Permit

should be issued.

60. Petitioners' primary argument against the Permit,

other than its "line of construction" argument, is that dunes

will not rec over under the footprint of the Dwelling, where

they otherwise would be expected to recover to some extent,

providing some additional dune stability and protection, all

other things being equal ( i.e. , if minimization and mitigation

were the same), if the P ermit were to be denied and Applicants

forced to propose a smaller, more landward project. But the

issue is not whether more stabilization and protection could

be afforded, it is whether there are "significant adverse

impacts," as defined, and whether any "adverse impacts" have

been minimized and mitigated.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that DEP enter a final order issuing CCCL

Permit ES - 540, as modified by Applicants' Exhibits 9 and 10.

DONE AND ENTERED this 9th day of June, 2005, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tal lahassee, 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 9th day of June, 2005.

ENDNOTES

1/ Applicants' Exhibits were marked and referred to during

the hearing as Respondents' Exhibits.

2/ NGVD refers to the National Geodetic Vertical Datum of

1929.

3/ On the other side of the coin, existence of a "line of

construction" does not guarantee a permit for construction up

to the "line of construction." Under Section 161.053(5)(b),

Florida Statutes, DEP still must exercise discretion and is

not prohibited "from requiring structures to meet design and

siting criteria established in paragraph (a) or in subsection

(1) or subsection ( 2)." Under Florida Administrative Code

Rule 62B - 33.005(9), DEP "shall issue a permit for the

construction of a similar structure up to that line, unless

such construction would be inconsistent with subsection 62B -

33.005(3), (4), (7), (8), or (10), F.A.C."

4/ The Applicants argued that, to apply the "line of

construction" provisions, Petitioners were required by this

statutory (and rule) language to establish and compare the

distance between the nearby structures and the MHWL. In this

respect, the argu ment of the Applicants is rejected. It is

concluded that "foregoing" refers to the 1986 CCCL, not the

MHWL.

COPIES FURNISHED :

Kathy C. Carter, Agency Clerk

Office of General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwe alth Boulevard

Tallahassee, Florida 32399 - 3000

Greg Munson, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Colleen M. Castille, Secretary

Department of Environmenta l Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Mark S. Miller, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

T homas G. Tomasello, Esquire

Thomas G. Tomasello, P.A.

Post Office Box 13148

1107 Terrace Street

Tallahassee, Florida 32317 - 3148

Jesse W. Rigby, Esquire

Clark, Partington, Hart, Larry,

Bond and Stackhouse

Post Office Box 13010

Pensacola, Florida 32591 - 3010

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.