10-001137 Angelo Ernest Petrandis, Finley L. Mcmillan, And Jean B. Mcmillan vs. Department Of Environmental Protection Status: Closed Recommended Order on Monday, August 22, 2011.

Summary: Application for beach armoring structure did not meet criteria. No structure to protect, no gap to close, and impact on marine turtle nesting.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELO ERNEST PETRANDIS, FINLEY )

L. MCMILLAN, AND JEAN B. )

MCMILLAN, )

)

Petitioners, )

)

vs. ) Case No. 10 - 1137

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

On July 12, 2011, a final administrative hearing was held

in Tallahassee before J. Lawrence Johnston, Administrative Law

Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Finley L. McMillan

Jean B. McMillan

Post Office Box 68

Panacea, Florida 32346 - 0068

Angelo Ernest Petrandis

Post Offi ce Box 189

Panacea, Florida 32346 - 0189

For Respondent: Norman West Gregory, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue is whether Respondent, the Department of

Environmental Protection (DEP), should grant PetitionersÓ

application for a coastal construction control line (C CCL)

permit to armor the beach seaward of the CCCL at their

properties on Alligator Point in Franklin County (permit number

FR - 740).

PRELIMINARY STATEMENT

Petitioners applied for permit FR - 740 in October 2003. DEP

requested additional information that w as not provided. In

June 2004, DEP notified Petitioners that their application would

be denied unless they provided the requested information. The

information was provided, and DEP declared the application to be

complete in August 2005. In September 200 5, PetitionersÓ

engineering consultant filed, on their behalf, a waiver of the

statutory 90 - day limit DEP had to either grant or deny the

application. See § 120.60(1), Fla. Stat. In May 2007, DEP gave

notice of inactive 90 - day clock waiver, meaning that there had

been no activity on the application, which would be deemed

withdrawn unless Petitioners notified DEP to the contrary. In

June 2007, PetitionersÓ engineering consultant responded with a

request for Ðan additional 90 - day extension to the . . .

pro jectÑ for Petitioners to propose revisions to the

application. In May 2008, DEP gave a second notice of inactive

90 - day clock waiver. In July 2009, DEP gave notice of its

intent to deny the application. In October 2009, Petitioners

requested an administ rative hearing. In March 2010, the request

for a hearing was referred to DOAH.

The DOAH hearing was scheduled for July 27 - 28, 2010.

PetitionersÓ request for a continuance was granted, and the

hearing was rescheduled for September 21 - 22, 2010. The parties

jointly moved for a continuance to discuss settlement, and the

hearing was rescheduled for January 27, 2011. A week before the

hearing, Petitioners requested a 120 - day continuance to attempt

to settle. The hearing was continued until May 2011, when the

parties reported that it should be rescheduled. The hearing was

rescheduled for July 1 2, 2011.

At the hearing, Petitioners testified and had their

Exhibits 1 - 3 admitted in evidence. DEP called Tony McNeal,

DEPÓs coastal construction program administrator, and

Robbin Trindell, Ph.D., a biological administrator for the

Imperiled Species Se ction of the Florida Fish and Wildlife

Conservation Commission, specializing in marine turtles. DEP

Exhibits 1, 2, 4 - 16, 31, and 34 were admitted in evidence.

No transcript of the final hearing was filed, and the

parties requested until August 3, 2011, to file proposed

recommended orders (PROs), which have been considered.

FINDINGS OF FACT

1. Petitioners own property fronting the Gulf of Mexico on

Alligator Point in Franklin County. Finley and Jean McMillan

own Lot 7, and Angelo Petrandis owns Lot 8, i n Block V of

Peninsula Point, Unit 6, a subdivision platted and recorded in

Plat Book 2, page 2, of the Public Records of Franklin County.

2. Petitioners complain that they applied to armor the

beach at their properties, using rock rip - rap seaward of the

CC CL, in the early 1990Ós, but the Department of Environmental

Regulation (the regulatory agency that preceded DEP) indicated

its intent to deny the application and required Petitioners to

build a wooden seawall that would be expendable in a major

storm. St orms destroyed the wooden seawall and the Petrandis

home on Lot 7. In 1995, Hurricane Opal severely damaged the

McMillansÓ home, which was later condemned and demolished.

These homes have not been rebuilt.

3. Since Opal, DEP permitted the construction of rip - rap

revetments seaward of the CCCL to armor the beach and protect

the homes of PetitionersÓ neighbors to the west (Lot 6) and east

(Lot 9)(an after - the - fact permit issued in September 2003).

4. In October 2003, Petitioners applied for a CCCL permit

to a rmor the beach seaward of the CCCL at their properties on

Alligator Point (permit number FR - 740). They proposed a rock

rip - rap revetment to be constructed seaward of the approximate

mean high water line, between 285 and 295 feet seaward of the

CCCL, to ti e into and Ðclose the gapÑ between the rock rip - rap

revetments of their neighbors to the east and west.

5. DEP requested additional information, including

documentation of ownership or control of the project area, all

of which appeared to be seaward of the mean high water line, and

requested payment of the application fee. The information and

fee were provided, and DEP declared the application to be

complete in August 2005. In September 2005, PetitionersÓ

engineering consultant filed, on their behalf, a wa iver of the

statutory 90 - day limit DEP had to either grant or deny the

application. See § 120.60(1), Fla. Stat. In May 2007, DEP gave

notice of inactive 90 - day clock waiver, meaning that there had

been no activity on the application, which would be deeme d

withdrawn unless Petitioners notified DEP to the contrary. In

June 2007, PetitionersÓ engineering consultant responded with a

request for Ðan additional 90 - day extension to the . . .

projectÑ for Petitioners to revise the application to propose a

tie - in to the rock revetment of the neighbor to the west but a

90 degree turn at the property boundary to the east to form an

ÐLÑ there. However, no actual revision to the application was

made. In May 2008, DEP gave a second notice of inactive 90 - day

clock wai ver. There was no evidence of any response. In

July 2009, DEP gave notice of its intent to deny the

application.

6. DEPÓs notice of intent was issued because: there are

no structures on PetitionersÓ properties to be protected by the

proposed armoring seaward of the CCCL; PetitionersÓ proposed

armoring project would not Ðclose a gapÑ of 250 feet or less in

a continuous and uniform armoring structure construction line;

and PetitionersÓ proposed armoring project would have a

significant adverse impact on marine turtles.

7. There are no structures on PetitionersÓ properties.

While the rock revetment on the property of the neighbor to the

west is stable and would prevent upland erosion from a 15 - year

return interval storm, there is no such structure for well over

250 feet to the east of PetitionersÓ properties. The dwelling

on the property to the east has suffered severe storm damage and

has been abandoned. The armoring structure permitted and built

on that property is in disrepair, dilapidated, disorganize d, and

made of rocks that are too light in weight to be stable or

capable of preventing upland erosion from a 15 - year return

interval storm; from the evidence, including the damage from

storms since 2003, it is not clear whether the structure ever

was capa ble of preventing upland erosion from a 15 - year return

interval storm.

8. Female marine turtles instinctively return to lay eggs

on the beach where they were born. Threatened and endangered

marine turtles use the sandy beaches of Alligator Point for

nest ing. One successfully used Petitioners ' beach for nesting

in June 2005. If rigid coastal armoring prevents a turtle from

nesting, the turtle will seek a nearby alternative. If a good

alternative is not found easily enough, the turtle may abandon

nesting and release her eggs in the water, where they will

perish. This makes a dry sandy beach between stretches of

armored beach (a so - called ÐpocketÑ beach) valuable for turtle

nesting. For these reasons, PetitionersÓ beach is valuable for

turtle nesting, an d it is expected that turtles will again use

it for nesting (although no nest has been documented on

PetitionersÓ beach since 2005.) PetitionersÓ proposed armoring

structure would prevent nesting marine turtles from coming

ashore at their beach.

9. Petitio ners did not prove that their proposed beach

armoring structure would not significantly impair breeding by

marine turtles, or that the resulting ÐtakeÑ of marine turtles

has been authorized.

10. Petitioners complain that they should have been

allowed to bui ld a rock rip - rap revetment in the early 1990Ós,

instead of being denied and required to build the wooden seawall

that was destroyed by storms. However, it was not proven that

their earlier application should have been granted, or that it

was error to app rove the wooden seawall application.

11. Petitioners complain that DEP should be responsible

for the delay in processing their application, which they now

claim would have been granted if acted on promptly. Clearly,

events that occurred during the delay, i ncluding the major

storms that struck in 2004 and 2005, complicated PetitionersÓ

application and gave rise to grounds to deny it. However,

Petitioners did not prove that that the rock revetment of the

neighbor to the east ever was suitable for Ðclosing th e gap.Ñ

12. Even if the rock revetment to the east was suitable

for Ðclosing the gapÑ in 2003, the evidence did not prove that

DEP was responsible for any delays in the permitting process

either before or after the storms of 2004 and 2005. Since

PetitionersÓ application was not complete until August 2005, it

cannot be said that their application would have been granted if

acted upon before then. The next month, PetitionersÓ consultant

relieved DEP from responsibility for further delay by waiving

the Ð90 - day clock.Ñ

13. It appeared from PetitionersÓ testimony at the final

hearing that they misunderstood the meaning of the Ð90 - day cloc k

waiver.Ñ They thought it imposed a duty on DEP to act on their

application within the following 90 days. Actually, it was a

blanket waiver. Similarly, they seemed to think the notice of

inactive 90 - day clock waiver deactivated the waiver and

restarted the 90 - day clock. Actually, it notified Petitioners

that there had been no activity since the waiver and that DEP

would deem their application to be withdrawn unless Petitioners

told DEP otherwise. The consultantÓs response to the second

notice of inact ive 90 - day clock waiver was couched as a request

for a 90 - day extension, which Petitioners interpreted as

reactivation of the 90 - day clock. Actually, it was a request

that DEP not consider the application withdrawn for 90 days,

during which Petitioners wo uld be revising their application.

No revision was filed, and DEP did not deem the application

withdrawn after 90 days. Instead, DEP proceeded with its review

of the pending application and denied it approximately a year

later. Even if DEP were responsi ble for this last delay of over

a year, there was no evidence of anything occurring during that

time that further complicated Petitioners ' application or gave

rise to any additional grounds for denial.

14. Petitioners complain that DEP should not have approved

the rock rip - rap revetments of their neighbors to the east and

west. They contend that the revetment to the east should not

have been permitted since it was destroyed by the storms of 2004

and 2005 and that both had marine turtle nesting habitat

comparable to their property. The destruction caused by the

storms of 2004 and 2005 did not prove that the revetment to the

east should not have been approved. There was no evidence of

actual turtle nesting on Lots 6 and 9 at the time of the

approval of the rock revetments there. In addition, impacts on

nesting marine turtles from the neighboring revetments would

have been reduced by the existence of PetitionersÓ unobstructed

beach; conversely, the existence of the neighboring revetments

increased the value of PetitionersÓ property for marine turtle

nesting, as possibly indicated by the successful nest in 2005.

In addition, the evidence was that Petitioners possibly could

get a permit to ÐtakeÑ marine turtle nesting habitat as a result

o f a beach armoring project.

CONCLUSIONS OF LAW

15. Petitioners have the burden of proving by a

preponderance of the evidence that they are entitled to CCCL

permit FR - 740. See DepÓt of Transp. v. J.W.C. Co., Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981).

16. The law at the time of the final hearing governs

PetitionersÓ application unless the agency unreasonably delayed

the administrative proceedings or otherwise unfairly applied a

new law. See Lavernia v. Dep't of Prof'l Regulation, Bd. of

Med. , 616 So. 2d 53 (Fl a. 1st DCA 1993). There was no dispute

in this case as to what law applied to PetitionersÓ application.

17. Proceedings under section s 120.569 and 120.57 , Florida

Statutes, are de novo proceedings, and the facts as they existed

at the time of the final h earing govern PetitionersÓ

application. Petitioners did not prove waiver or estoppel or

any other extraordinary circumstance that might warrant a

departure from the general law. Events occurred before

PetitionersÓ application (that gave rise to the need for it) and

during the pendency of this administrative proceeding (that

complicated PetitionersÓ application and gave rise to grounds to

deny it). However, it was not proven that DEP should be held

solely responsible for the consequences of those events, or that

facts as they existed at the time of the final hearing should

not govern PetitionersÓ application.

18. It is clear on the facts as they existed at the time

of the final hearing that Petitioners are not entitled to a CCCL

permit for a coastal armorin g structure under section

161.085(2). There are no private structures on their property,

and it was not proven that their proposed rigid armoring

structure would protect public infrastructure. See

§ 161.085(2)(a), Fla. Stat. See also Fla. Admin. Code R. 62B -

33.0051(1)(a)1. - 2.(permits may be issued to protect eligible,

vulnerable structures), 62B - 33.002(18)(definition of Ðeligible

structureÑ), and 62B - 33.002(64)(definition of ÐvulnerableÑ).

PetitionersÓ proposed rigid armoring structure would not Ðclose

a gapÑ of 250 feet or less in a continuous and uniform armoring

structure construction line. See § 161.085(2)(c), Fla. Stat.

See also Fla. Admin. Code R. 62B - 33.0051(1)(a)3.(permits may be

issued to Ðclose a gapÑ).

19. Rule 62B - 33.0051(1)(a)5. requires th at coastal

armoring not result in a significant adverse impact, which

includes a ÐtakeÑ of marine turtles under section 379.2431(1)

that is not incidental under paragraph (f) of the statute. A

ÐtakeÑ is defined to include significant habitat modification or

degradation that kills or injures marine turtles by

significantly impairing essential behavioral patterns, such as

breeding. See § 379.2431(1)(c)2., Fla. Stat.

20. Petitioners understandably are frustrated by their

unsuccessful efforts to get a permit t o effectively armor their

beach. They want to be told whether it is possible to propose

an effective beach armoring project that DEP would permit.

However, the issue in this case is whether the pending

application should be granted, not whether some othe r

unspecified project could be permitted.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that DEP enter a final order denying

PetitionersÓ application for CCCL permit FR - 740.

DONE AND ENTERED this 22 nd day of August, 2011, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 22nd day of August, 2011.

COPIES FURNISHED :

Finley L. McMillan

Jean B. McMillan

Post Office Box 68

Panacea, Florida 323 46 - 0068

Norman West Gregory, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Angelo Ernest Petrandis

Post Office Box 189

Panacea, Florida 32346 - 0189

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Flo rida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the final order in this case.