09-004908 Ronnie E. Young And Pamela C. Young vs. Steven Hanson And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, December 7, 2010.

Summary: Hanson provided reasonable assurance of his compliance with all applicable criteria for the construction of a dwelling seaward of the Coastal Construction Control Line.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONNIE E. YOUNG AND PAMELA C. )

YOUNG, )

)

Petitioners , )

)

vs. ) Cas e No. 09 - 4908

)

STEVEN HANSON AND DEPARTMENT OF )

ENVIRONMENTAL PROTECTION , )

)

Respondents . )

)

RECOMMENDED ORDER

The final hearing in this case was held on August 17, 18,

and 19, 2010, in Bradenton, Florida, before Bram D. E. Canter,

Administrative Law Judge of the Division of Administrative

Hearings ("DOAH").

APPEARANCES

For Petitioners: Mark A. Nelson, Esquire

Ozark, Perron & Nelson, P.A.

2816 Manatee Avenue West

Bradenton, Florida 34205

For Respondent Department of Environmental Protection:

Kelly L. Russell, Esquire

Department of Envi ronmental Protection

3900 Commonwealth Boulevard,

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent Steven Hanson:

Charles F. Johnson, III , Esquire

Blalock Walters, P.A.

802 11th Street , West

Bradenton , Florida 34205

Ricinda H. Perry, Esquire

117 3rd Street , South

Bradenton Beach, Florida 34217

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether

Respondent Steven Hanson is entitled to a coastal constructio n

control line ("CCCL") permit to construct a single - family

residence and associated structures seaward of the CCCL on

Anna Maria Island, Manatee County, Florida .

PRELIMINARY STATEMENT

On July 24, 2009, the Department of Environmental

Protection ("Departm ent") issued a CCCL permit to Gabriel R. and

Patricia Buky, Charles and Rebecca Buky, Denni s R. Miller, Jr.,

Gabriel Buky, Jr., and David and Deborah Montgomery

(collectively ÐBukyÑ) to construct a single - family residence and

associated structures on Anna Maria Island. On August 19, 2009,

Petitioners, Ronnie E. Young, Pamela C. Young, and Blanton

Homestead, LLC, filed a petition to contest the DepartmentÓs

decision to issue the CCCL permit. The Department referred the

petition to DOAH to conduct an eviden tiary hearing and prepare a

Recommended Order.

In November 2009, the CCCL permit was transferred to

Steven Hanson. Hanson became the sole permittee.

On August 16, 2010, Petitioner Blanton Homestead, LLC,

withdrew its petition, leaving Ronnie and Pamela Young as the

remaining Petitioners.

At the final hearing, Hanson presented the testimony of:

Robert Whitehead ; Steven Hanson ; Michael Walther, accepted as an

expert in coastal engineering; Tony McNeal, accepted as an expert

in coastal engineering; and Em mett Foster, accepted as an expert

in coastal engineering. The testimony of Kimberly Colstad Hefty

was presented through her deposition. Hanson Exhibits 4, 5, 7

through 18, 20 through 33, 35 through 39, 41 through 53, 56

through 61, 65, 83, 91 through 93 , 95 through 97, 99, 101, 105,

and 106 were admitted into evidence.

The Department presented the testimony of Tony McNeal and

Emmett Foster. Department Exhibits 1 through 4, 6 through 12,

and 17 were admitted into evidence.

Petitioners presented the test imony of: Ronnie Young;

Pamela Young; Karyn Erickson and Melvin Rector. Petitioners'

Exhibits 5, 7 through 15, 17 through 19, 25, 27, 28, 30, 33, 34,

37, 39, 47, 52, 58, 59, and 62 were admitted into evidence. 1/

The four - volume Transcript of the final h earing was filed

with DOAH. All parties filed proposed recommended orders that

were carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

The Parties

1. Respondent Hanson owns an undeveloped lot located at

107 Elm Avenue in Anna Maria, Florida ("the project site"), upon

which he proposes to construct a residence and related

structures that are authorized by the CCCL permit challenged by

Petitioners.

2. Petitioners Ronnie E. and Pamela Young own a single -

family residence at 110 Pine Avenue in Anna Maria. The Young

property is about 60 feet landward of the project site.

3. Blanton Homestead, LLC, owns a single - family residence

at 109 Elm Avenue in Anna Maria, which is contiguous to the

Hanson Property. Blanton entered int o a settlement agreement

with Hanson and withdrew its petition and opposition to the CCCL

permit.

4. The Department is the agency responsible for regulating

construction activities seaward of the CCCL pursuant to Part I

of Chapter 161, Florida Statutes, and Florida Administrative

Code Rule 62B - 33.

The Project Site

5. The project site is seaward of the CCCL established in

accordance with S ection 161.053, Florida Statutes.

6 . The shoreline in this area has experienced relatively

large fluctuations. It is included in the State's Strategic

Beach Management Plan, which means that it has been prioritized

for beach restoration.

7. This area was included in a 2002 beach nourishment

project. In the eight years since the nourishment, the project

has "perform ed" well and the shoreline in front of the project

site has accreted since the completion of the nourishment

project. The shoreline is now 331 feet more seaward than its

position in 1998.

8. A permit was issued in July 2010 for a renourishment

project i n this area.

9. The project site is approximately 350 feet landward of

the mean high water line of the Gulf of Mexico.

10 . The project site is densely vegetated and includes sea

grapes and sea oats.

11. One or two active gopher tortoise burrows may e xist on

the project site.

12. On each side of the project site are platted road

rights - of - way that run perpendicular to the shoreline. On the

northwest side of the project site is Elm Avenue, a 50 - foot - wide

public asphalt street, at the seaward end of w hich is a wooden

walkway to the beach. On the southeast side of the project site

is a ten - foot - wide platted alley.

13. Adjacent to the project site on the southeast is the

Brown property and residence, which was the subject of a CCCL

permit issued in 20 05. Continuing southeast from the Brown

property is Pine Avenue.

Dunes in the Area

14. Florida Administrative Code Rule 62B - 33.002(17)

defines "dune" as "a mound, bluff or ridge of loose sediment,

usually sand - sized sediment, lying upland of the beach a nd

deposited by natural or artificial mechanism, which may be bare

or covered with vegetation and is subject to fluctuations in

configuration and location."

15. A "frontal dune" is defined as "the first natural or

man - made mound or bluff of sand which is located landward of the

beach and which has sufficient vegetation, height, continuity

and configuration to offer protective value." See

§ 161.053(6)(a)1., Fla. Stat. (2009). 2/

16. "Protective value" is defined as "the measurable

protective level" affor ded by the dune system to upland property

and structures from erosion and storm surge. See Fla. Admin.

Code R. 62B - 33.002(50).

17. A "significant dune" is defined as having " sufficient

height and configuration or vegetation to offer protective

value." See Fla. Admin. Code R. 62B - 33.002(17)(a).

18. A "primary dune" is defined as " a significant dune

which has sufficient alongshore continuity to offer protective

value to upland property." See Fla. Admin. Code R. 62B -

33.002(17)(b). A primary dune may be the frontal dune if it is

located immediately landward of the beach. Id.

19 . The parties disputed the proper classification of the

dunes in the area of the proposed project. Their dispute is not

surprising because all three types of dunes are defined as

offering protective value to upland property. To state, for

example, that a primary dune is a significant dune (one that

offers protective value) with sufficient alongshore continuity

to offer protective value, sounds circular.

20. It is apparently t he practice of the Department to

treat the term "continuity" in the definitions of "frontal dune"

and "primary dune" as a paramount factor. The Department does

not consider a dune to qualify as a frontal dune or a primary

dune unless it offers a high degr ee of protection because of its

continuity.

21. The most seaward dune from the project site was

described by Tony McNeal, administrator of the Department's CCCL

program, as a "dune system," consisting of scattered, vegetated

mounds with peak elevations o f about 7 feet. 3/ This dune system

spans the entire width of the project site and is about 180 feet

wide. In recent years, the mounds have grown in size and the

amount of vegetation on the mounds has increased.

2 2 . These mounds offer some protective va lue and,

therefore, qualify as significant dunes. Hanson's coastal

engineer, Michael Walther, believes the mounds qualify as a

frontal dune, but he conceded that they would only provide

protection for relatively high - frequency ( e.g. , 10 - year) storm

events .

2 3 . The public's pedestrian access from Elm Avenue and

Pine Avenue has resulted in wide, denuded, and flattened paths

through the dune system to the shoreline. B ecause the mounds do

not create a continuous dune, but have these and other "flow

lanes " t hrough which storm surge could pass and reach upland

areas, Mr. McNeal does not think they qualify as a frontal dune.

2 4 . Landward of the mounds is a manmade dune constructed

by the applicant pursuant to a "field permit" from the

Department which Hanson is offering as part of the mitigation

for the impacts of the proposed project. The manmade dune spans

the length of the project site (110 feet), is about 15 feet

wide, and is 7 feet high. It is planted with sea oats. It was

constructed with 109 cubic ya rds of sand.

2 5 . The manmade dune offers little protective value

because of its small size. The primary benefits of the manmade

dune are that it increases the volume of sand in the system and

is vegetated.

2 6 . Landward of the manmade dune is a natural dune on the

project site that is about 220 feet long (shore parallel), 5.0

to 8.3 feet in height, and 35 to 60 feet wide. Petitioners'

coastal engineer, Karyn Erickson, believes this dune qualifies

as a frontal dune. Mr. Walther thinks it is a primary d une.

All the coastal engineers agreed that it was a significant dune

because it provides some protective value to upland properties.

2 7 . However, despite this dune's height and vegetation, it

lacks continuity, being interrupted on the north side by Elm

Avenue, and flattening to some extent on the southeast on the

Brown property and then terminating before it reaches Pine

Avenue. The dune would not prevent storm surge from passing

around it to inundate upland properties. Therefore, it does not

provide s ufficient protective value to qualify as a frontal

dune. For the same reason, it does not qualify as a primary

dune. It is probably most accurate to describe this dune as a

remnant of what was once a primary dune.

The Proposed Project

2 8 . The CCCL perm it authorizes the construction of a

single - family dwelling, slab, storage enclosure, entry foyer,

shell driveway, and landscaping. The Department's permit file

number is ME - 919.

29 . In July 2007, the project site was conveyed from Buky

to Hanson. In No vember 2009, the Department approved a request

to transfer the CCCL permit from Buky to Hanson.

3 0 . The exterior dimensions of the dwelling are 58 feet by

29.3 feet, which is about 30 percent of the project site.

3 1 . The proposed dwelling would have tw o habitable floors

elevated above the ground on pilings. The lower floor would be

17.5 feet above sea level, which is the elevation necessary to

protect the structure from the 100 - year storm surge.

3 2 . Underneath the dwelling would be a concrete slab or

pad for parking, a storage enclosure, and a stairway.

3 3 . The proposed project would be located on top of the

natural dune located on the project site. The height of the

dune underneath the slab varies, but would have to be made level

for the slab. Ha nson would add 20 cubic feet of sand to the

dune. The finished slab would be at a minimum height of 6.5

feet.

3 4 . The building would be constructed in a manner to

prevent the creation of wind - or water - borne debris in the event

of a hurricane.

3 5 . The proposed driveway and slab would eliminate some

natural vegetation, including some sea oats and two sea grape

trees.

3 6 . To mitigate for the proposed project's impact to the

dune and vegetation, Hanson placed 100 cubic yards of sand on

the project site to create the manmade dune and planted it with

sea oats. In addition, Hanson would install sea oats, sea

grapes, and cabbage palms seaward of the dwelling.

3 7 . The dwelling has been moved as far landward as is

allowed under the local government building code.

3 8 . The proposed project would comply with the lighting

guidelines of the Florida Fish and Wildlife Conservation

Commission for the protection of sea turtles.

39 . Hanson obtained a letter of no objection from the City

of Anna Maria for the propo sed project.

Permit Criteria

4 0 . Criteria for issuance of a CCCL permit are found in

Florida Administrative Code Rule 62B - 33.005(4):

The Department shall issue a permit for

construction which an applicant has shown to

be clearly justified by demonstratin g 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 construction will not result in

removal or destruction of native vegetation

which will either destabilize a frontal,

primary, or significant dune or cause a

significant adverse impact to the beach and

dune system due to increased erosion by wind

or water;

(b) The construction will not result in

removal or disturbance of in situ sandy

soils of the beach and dune system to such a

degree that a significant adverse impact to

the beach and dune system would result from

either reducing the existing ability of the

system to resist erosion during a storm or

lowering existing levels of storm protection

to upland properties and structures;

(c) The construction will not direct

discharges of water or other fluids in a

seaward direction and in a manner that would

result in significant adverse impacts. For

the purposes of this ru le section,

construction shall be designed so as to

minimize erosion induced surface water

runoff within the beach and dune system and

to prevent additional seaward or off - site

discharges associated with a coastal storm

event.

(d) The construction will n ot result in the

net excavation of the in situ sandy soils

seaward of the control line or 50 - foot

setback;

(e) 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;

(f) The construction will minimize the

potential for wind and waterborne missiles

during a storm;

(g) The activity will not interfere with

public access, as defined in Section

161.021, F.S.; and

(h) The constru ction will not cause a

significant adverse impact to marine

turtles, or the coastal system.

4 1 . Rule 62B - 33.002(33) defines "impacts" for purposes of

CCCL permitting:

ÐImpactsÑ are those effects, whether direct

or indirect, short or long term, which are

expected to occur as a result of

construction and are defined as follows:

(a) ÐAdverse ImpactsÑ are impacts to the coastal

system that may cause a measurable interference with

the natural functioning of the coastal system.

(b) ÐSignificant Adverse Imp actsÑ are

adverse impacts of such magnitude that they

may:

1. Alter the coastal system by:

a. Measurably affecting the existing

shoreline change rate;

b. Significantly interfering with its

ability to recover from a coastal storm;

c. Disturbing topo graphy 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

379.2413(1), F.S., unless the take is

incidenta l pursuant to Section

379.2413(1)(f), F.S.

(c) ÐMinor ImpactsÑ are impacts associated

with construction which are not adverse

impacts due to their magnitude or temporary

nature.

(d) ÐOther ImpactsÑ are impacts associated

with construction which may res ult in damage

to existing structures or property or

interference with lateral beach access.

4 2 . The proposed project involves the destruction of some

native vegetation, but it will not destabilize the natural dune

on the project site or cause a signific ant adverse impact to the

beach and dune system. Removing vegetation can destabilize a

dune because the vegetation prevents the loss of sand, primarily

by wind erosion. However, in this case, the structure would

block the wind and prevent the loss of san d. The more

persuasive evidence shows that the amount of remaining

vegetation, the additions of new sand and plantings, and other

project conditions provide reasonable assurance that the dune

would not be destabilized.

4 3 . This finding is further suppor ted by the evidence that

the portion of the dune that is on the Brown property has not

been destabilized by the Brown project and is growing.

4 4 . T he proposed project would not involve the removal or

disturbance of in situ sandy soils to such a degree th at a

significant adverse impact to the beach and dune system would

result. The total volume of sand associated with the dune upon

which the house would be constructed would be increased by 20

cubic yards.

4 5 . Petitioners made much of the fact that the p eak height

of the natural dune on the project site would be reduced.

However, Petitioners did not show this would change the

functional or effective height of the dune. Common sense

indicates that a dune with a peak that is over 8 feet high will

not bloc k an 8 - foot storm surge if most of the dune is only 6

feet high. In this example, the effective height of the dune

would be 6 feet, and an 8 - foot storm surge would pass over the

dune.

4 6 . The more persuasive evidence shows that the proposed

project woul d not reduce the existing ability of the system to

resist erosion and protect upland properties and structures.

4 7 . The proposed project would not direct discharges of

water or other fluids in a seaward direction or in a manner that

would result in signi ficant adverse impacts.

4 8 . The proposed project would not result in the net

excavation of the in situ sandy soils seaward of the control

line. When the manmade dune is included, the proposed project

would add about 12 9 cubic yards of sand to the projec t site.

49 . The proposed project would not cause an increase in

structure - induced scour of such magnitude during a storm as to

result in a significant adverse impact.

5 0 . The proposed project would minimize the potential for

wind and waterborne missile s during a storm. The dwelling would

be elevated above the 100 - year storm surge to allow the waves to

move under the structure and minimize structural damage.

5 1 . The proposed project would not interfere with public

access.

5 2 . The proposed project wo uld not interfere with marine

turtle nesting. The permit contains conditions to assure that

the proposed activities would not disturb nesting turtles or

cause a significant adverse impact to marine turtles or the

coastal system.

Minmization of Impacts

5 3 . The expected impacts to the beach and dune system in

this area are small. Hanson has minimized the se potential

impact s and provided mitigation so that no significant adverse

impact would result . The proposed dwelling is smaller than the

adjacent Brown house and would be located as far landward as the

local government setback requirements will allow. Hanson would

further minimize potential impacts to the beach - dune system by

adding 129 cubic yards of sand to the project site and planting

native, salt - t olerant vegetation.

Frontal Dune

5 4 . The natural dune on the project site is not a frontal

dune. Therefore, Petitioners' contention that the proposed

project is not a sufficient distance landward of the beach and

frontal dune to permit natural shoreline fluctuations and

protect beach and dune system stability, is rejected.

Line of Construction

5 5 . Existing structures in the immediate area have

established a reasonably continuous and uniform construction

line and these structures have not been unduly af fected by

erosion. T he proposed project conforms to this existing line of

construction and would not advance the line seaward.

Cumulative Effects

5 6 . Petitioners contend that the cumulative effects of

this proposed project and the adjacent Brown project would cause

a significant adverse impact to the natural dune that crosses

these properties. However, the more persuasive evidence shows

that the portion of the dune on the Brown site remains stable

and is even growing.

5 7 . Petitioners claimed that the Department acted

inconsistently by treating the dune on the Brown property as

"removed" by the Brown project, but treating the dune on the

Hanson property as unaffected by Hanson's proposed project.

However, neither Petitioners' Exhibit 17 nor any other e vidence

in the record establishes what changes, if any, occurred to the

dune on the Brown property. It was not shown that part of the

dune on the Brown property was physically removed.

5 8 . Furthermore, Petitioners did not show that, because

the Brown pr oject was on the dune, the Department determined

that the affected portion of the dune was "removed" or ceased to

function as a dune. There was no evidence presented of the

existence of a coastal engineering principle that, when a

structure is located on a dune, it is equivalent to removing the

affected portion of the dune.

59 . Taken together, the effects of the proposed project

and the Brown project would not significantly reduce the

protective value of the dune.

30 - Year Erosion Projection

6 0 . Before issuing a permit to construct major structures

seaward of the CCCL, the Department is required to make a

thirty - year erosion projection in the area. See

§ 161.053(6)(b), Fla. Stat. The 30 - year erosion projection Ðis

the projection of long - term shoreline recession occurring over a

period of 30 years, based on shoreline change information

obtained from historical measurements. See Fla. Admin. Code R.

62B - 33.024(1).

6 1 . Generally, major structures seaward of the CCCL must

be landward of the 30 - year erosio n projection. See

§ 161.053(5)(b), Fla. Stat. The proposed project is a major

structure.

6 2 . The 30 - year erosion projection in this area of Anna

Maria Island was produced and recommended to the Department by

Emmett Foster, an employee of the Beaches an d Shores Resource

Center at Florida State University. Mr. Foster was the

principal author of the latest version of Rule 62B - 33.024.

6 3 . Rule 62B - 33.024(2) describes several procedures for

determining the 30 - year erosion projection, which can be used in

combination. Mr. Foster's projection made use of the rule

procedure that allows "credit" for beach nourishment projects.

Mr. Foster assigned a 10 - year credit to the nourishment project

based on the history and performance of the nourishment projects

in t he area and the likelihood of continuing nourishments. His

30 - year erosion projection is seaward of Hanson's proposed

project.

6 4 . Petitioners disputed the procedure used by Mr. Foster.

Their coastal engineer, Ms. Erickson, believes that a beach

nouris hment credit should not have been included in the

analysis. Using an alternative procedure in the Rule 62B -

33.024, Ms. Erickson placed the 30 - year erosion projection three

feet landward of the most seaward edge of the proposed project

(± 30 feet). 4/ Howe ver, Petitioners failed to show that

Mr. Foster's analysis was professionally unsound.

CONCLUSIONS OF LAW

6 5 . Based on the sale of the project site and the transfer

of the CCCL permit to Steven Hanson, Gabriel R. Buky and

Patricia Buky, Charles Buky and Rebecca Buky, Dennis R. Miller,

Jr., Gabriel Buky, Jr., David Montgomery, and Deborah Montgomery

are dismissed as Respondents. Based on the withdrawal of the

petition of Blanton Homestead, LLC, it is dismissed as a

Petitioner. The style of the case has b een changed accordingly.

6 6 . Although not identified as an issue in the parties'

Joint Pre - Hearing Stipulation, Hanson contends that Petitioners

lack standing to challenge the CCCL permit. Hanson asserts that

Petitioners would not be affected by the pro posed project

because their property is at a higher elevation than the project

site and is not contiguous to the project site.

6 7 . It was not disputed that the natural dune on the

project site provides protective value to upland properties.

Petitioners claimed that construction of the proposed project on

the dune would destabilize the dune and destroy its protective

value. Petitioners failed to prove this claim, but standing and

the merits of a claim are different concepts. See , e.g. , St.

Martin's Epis copal Church v. Prudential - Bache Securities , 613

So. 2d 108, 109, n. 4 (Fla. 4th DCA 1993); Village Park Mobile

Home Ass'n., Inc. v. State Dept. of Business Regulation , 506 So.

2d 426, 433 (Fla. 1st DCA 1987).

6 8 . Petitioners' interest in the protection of their

property is a substantial interest and is affected by the

proposed project because the project is located on a dune that

provides protection to Petitioners' property. Petitioners have

standing to initiate this proceeding.

69 . This is a de novo proceeding designed to formulate

final agency action rather than to review the Department's

decision to issue the CCCL permit, and the preliminary agency

action is not entitled to a presumption of correctness. See

Capaletti Bros., Inc. v. Dept. of General Services , 432 So. 2d

1359, 1363 (Fla. 1st DCA 1983).

7 0 . A permit applicant bears the ultimate burden of

providing reasonable assurance that that all applicable

permitting criteria and standards will be met. See DepÓt of

Transp. v. J.W.C. Co. , 396 So. 2d 778, 789 (Fla. 1st DCA 1981).

7 1 . "Reasonable assurance," in this context means a

demonstration that there is a substantial likelihood of

compliance with standards, or "a substantial likelihood that the

project will be successfully implemented." Metro politan Dade

County v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA

1992). It does not mean absolute guarantees. See Save our

Suwannee v. Florida Dep't of Envtl. Protection and Piechocki , 18

F.A.L.R. 1467, 1472 (DEP 1996).

7 2 . Hanson must pro ve the facts necessary to show his

entitlement to the CCCL permit by a preponderance of the

evidence. See § 120.57(1)(j), Fla. Stat.

7 3 . To obtain a permit to construct major structures

seaward of the coastal construction control line, an applicant

must demonstrate that adverse and other impacts associated with

the construction are minimized and the construction will not

result in a significant adverse impact. See Fla. Admin. Code R.

62B - 33.005(2). Hanson demonstrated that the impacts associated

with h is proposed project are minimized and the project will not

result in significant adverse impact.

7 4 . An applicant must also provide mitigation for any

adverse impacts in the form of Ðan action or series of actions

taken by the applicant that will offset impacts caused by a

proposed or existing construction project.Ñ See Fla. Admin.

Code R. 62B - 33.005(3)(b). Hanson provided reasonable assurance

that the impacts associated with his proposed project have been

offset by existing and proposed mitigation acti ons.

7 5 . Hanson provided reasonable assurance that the CCCL

permit criteria set forth in Rule 62B - 33.005(4) would be met.

7 6 . As interpreted and applied by the Department, the

requirement of Rule 62B - 33.005(4) that an applicant show that

proposed activ ity is "clearly justified " is satisfied by a

demonstration that all CCCL permitting criteria will be met.

7 7 . In order to qualify for a permit to construct a major

structure seaward of the coastal construction control line, the

proposed major structure m ust be landward of the 30 - year erosion

projection of long - term shoreline recession. See

§ 161.053(6)(b), Fla. Stat. The Department's determination of

the 30 - year erosion projection, using procedures set forth in

Rule 62B - 33.024, was reasonable. Hanson p roved by a

preponderance of the evidence that the proposed major structure

is landward of the 30 - year erosion projection in this area.

7 8 . Rule 62B - 33.005(8) requires that major structures be

located a sufficient distance landward of the beach and fronta l

dune to permit natural shoreline fluctuations, preserve and

protect beach and dune system stability, and allow natural

recovery to occur following storm - induced erosion. The

preponderance of the evidence shows that the proposed project

complies with thi s requirement.

79 . Section 161.053(4)(b), Florida Statutes, generally

prohibits the issuance of a CCCL permit for a proposed structure

if it would be located more seaward than the line of

construction established by existing structures in the area.

Hans on provided reasonable assurance that the proposed project

would conform to the existing line of construction.

8 0 . Rule 62B - 33.005(3)(a) requires the Department to deny

an application for a CCCL permit that would result in a

significant adverse impact "i ncluding potential cumulative

effects." Hanson provided reasonable assurance that, taking

into account potential cumulative effects, the proposed project

would not result in a significant adverse impact.

8 1 . Petitioners failed to show that, under the CC CL

statutes and rules, the presence of a potentially active gopher

tortoise burrow on the project site requires that the CCCL

permit be denied. The regulation of activities that might

affect gopher tortoises or their habitat is within the

jurisdiction of th e Florida Fish and Wildlife Conservation

Commission. The Department's CCCL permit does not authorize

Hanson to disturb gopher tortoises or their habitat.

8 2 . Hanson provided reasonable assurance that all CCCL

regulatory criteria have been met.

RECOMME NDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department issue a final

order granting the CCCL permit to Hanson.

DONE AND ENTERED this 7th day of December, 2010, in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of December, 2010.

ENDNOTES

1/ Petitioners' Exhibits 59 and 62, admitted at the final

hearing, are not the documents with those designations in the

Joint Pre - Hearing Stipulati on. Petitioners' Exhibit 59,

introduced at the final hearing, is a photograph. Petitioners'

Exhibit 62, introduced at the final hearing, is the August 12,

2010 , deposition of Kimberly Colstad Hefty.

2/ All references to the Florida Statutes are to the 2010

codification.

3/ All findings of fact related to heights are in reference to

sea level.

4/ When Mr. Foster used the rule procedure that does not give

credit for nourishment projects, he located the 30 - year erosion

projection closer to, but still s eaward of , the proposed

structure.

COPIES FURNISHED :

Mark A. Nelson, Esquire

Ozark, Perron & Nelson, P.A.

2816 Manatee Avenue West

Bradenton, Florida 34205

Ricinda Hope Perry, Esquire

Ricinda H. Perry, P.A.

1519 Riverview Lane

Bradenton, Florida 3420 9 - 1442

Kelly L. Russell, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Charles F. Johnson, III, Esquire

Blalock, Walters, Held & Johnson, P.A.

802 11th St reet West

Bradenton, Florida 34205

Mimi Drew, Secretary

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Pr otection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Fl orida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will is sue the Final Order in this case.