10-003000 Department Of Environmental Protection vs. Edith Pepper And Lyle Spencer Status: Closed Recommended Order on Friday, March 4, 2011.

Summary: Respondents guilty of performing unauthorized construction beyond CCCL; actions deemed willful.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 10 - 3000

)

EDITH PEPPER AND LYLE SPENCER, )

)

Respondent s. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, D .R. Alexander, on January 28, 2011,

in St. Augustine, Florida.

APPEARANCES

For Petitioner: Kirk S. White , Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Ta llahassee, Florida 32399 - 3000

For Respondent s: Lyle Spencer , pro se

3100 Coastal Highway

St. Augustine, Florida 32082 - 2215

STATEMENT OF THE ISSUE S

The issue s are whether Respondent s engaged in unauthorized

construction on their property in St. Johns County (County)

wi thout a permit; whether they should remove wooden shore - normal

retaining walls and concrete sidewalks from an area seaward of

the coastal construction control line (CCCL); whether they

should restore any disturbed areas; and whether they should pay

a $1,000.00 administrative fine .

PRELIMINARY STATEMENT

On May 10, 20 10 , Petitioner , Department of Environmental

Protection (Department), issued a Final Order determining that

Respondent Edith Pepper had engaged in unauthorized construction

seaward of the CCCL, that certain corrective action should be

taken, and that she should pay a $1,000.00 administrative fine.

On June 1, 2010, Respondents Edith Pe pper and Lyle Spencer, who

own the subject property, filed a petition for administrative

hearing in which t hey contested the Department's proposed

action. The p etition was forwarded by the D epartment to the

Division of Administrative Hearings on June 2, 2010, wi th a

request that an administrative law judge be assigned to conduct

a hearing.

By Notice of Hearing dated June 14, 2010, t he matter was

scheduled for final hearing on July 29, 2010, in St. Augustine,

Florida . At the Department's request, the final hearing was

rescheduled to October 19, 2010, and then again to December 1,

2010. A fu rther continuance was granted, and the matter was

rescheduled to January 28, 2011, at the same location.

A Joint Pre - Hearing Stipulation (Stipulation) was filed by

the parties on January 21, 2011. At the final hearing, the

Department presented the test imony of Trey Hatch, an

Environmental Specialist in the Department's Northeast District

Office (District Office) ; Lori T. Nichols , who with her brother

owns the property immediately south of Respondents' property ;

and Dr. Kenneth Rein h old, who owns the pro perty immediately

north of Respondents' property . Also, it offered Department

Exhibits 1 - 1 2 , which were received in evidence. Exhibits 8 and

12 are the affidavits of David A. Kriger, Permit Manager for the

Department's Bureau of Beaches and Coastal Systems , and Lindsay

Haga, a planner with the St. Johns County Growth Management/

Development Review Division. By agreement of the parties, the

affidavits are being used in lieu of live testimony. Res pondent

Lyle Spencer tes tified on behalf of Respondents. Also, he

offered Respondents Exhibits 1 - 3 . Exhibits 1 and 2 were

received, while proffered Exhibit 3 was not received. Finally,

Florida Administrative Code Chapter 62B - 54 and s ections 161.053

and 161.054, Florida Statutes (2010) , were officially

recognized .

The re is no t ranscript of the hearing . P roposed f indings

of f act and c onclusions of l aw w ere filed by the Department on

February 2 4 , 2011, and they h ave been considered in t he

preparation of this Recommended Order.

FINDINGS OF FACT

1. Edith Pepper and Lyle Spencer are the owner s of

property located at 3100 Coastal Highway ( also known as U.S.

Highway A1A), St. Augustine, Florida. A lthough Ms. Pepper is

named as the respondent in the enforcement action initiated by

the Department , as owners of the property, both she and her

husband are responsible for complying with Department rules and

governing statutes. 1

2. The Department is the regulatory agency charged with

the duty of permitting and enforc ing construction activities

seaward of the CCCL.

3. There are existing residences on both the north and

south sides of Respondents' property. The parcel south of th e

subject property is owned by Lori T. Nichols and her brother ,

while the parcel on the north side is owned by Dr. Kenneth

Rein h old.

4. A small, one - story coquina house constructed in 1935

sits on the western side of Respondents' property facing the

Coastal Highway and was occupied by Respondents for an

undisclosed period of time after they purchased the property.

In response to a CCCL application filed by Ms. Pepper, o n

N ovember 20, 2002, the Department issued Permit No. SJ - 844 to

Ms. Pepper aut horizing the construction of a large, 3 - story

single - family residence and deck, other structural activity,

excavation , and placement of approximately 1,900 cubic yards of

fill seaward of the CCCL . See Department Exhibit 1 . When

completed, t he new home will be more than 8,000 square feet and

sit on the eastern side of the parcel facing the Atlantic Ocean.

The large amount of fill placed on the construction site

resulted in raising the elevation of Respondents' property to

between two and four feet above the ir neighbors' adjoining lots.

5. P ermit No. SJ - 844 contain s a detailed description of

the location, dimensions, and structural activities for the

project, including a requirement that it have "[d]rainage swales

on the north and south sides of the [new ] dwelling." Id.

Another authorized activity was the construction of a "concrete

driveway 120 feet in the shore - normal direction by 12 feet in

the shore - parallel direction [to] be located a maximum of 54

feet seaward of the control line with control join ts on 5 - foot

centers each way." Id. Special Permit Condition 4 further

required that "[a]ll rubble and debris resulting from this

construction shall be removed to a location landward of the

[CCCL]." Id. Photographs received in evidence show that

c onstr uction on the residence is now substantially completed .

However , due to zoning code issues, a stop work notice was

placed on the property by the County in 2008, and a Certificate

of Occupancy has never been issued.

6 . On March 21, 2006, Ms. Pepper submitted a request to

the Department to modify Permit No. SJ - 844 and authorize the

construction of a swimming pool, pool deck, and dune walkover

seaward of the CCCL. The Final Order indicates that th e

application to modify the permit is now complete, bu t Ms. Pepper

has waived the requirement that the Department take action on

her request within 90 days after the application is deemed to be

complete. Therefore, the modification has never been approved.

7 . On February 5, 2008, an Environmental Specialist in the

District Office , Trey Hatch, conducted a routine inspection of

the site and observed the unauthorized construction of wood

retaining walls on the north and south property lines , the

demolition and removal of a "derelict" septic tank and drain

field seaward of maximum construction limits, and the storage of

construction debris seaward of the maximum construction limits.

See Department Exhibit 2. These activities were performed

without Department approval. Mr. Hatch spoke with Mr. Spencer

and advised him that any work beyond the scope of his permit

required Department approval, and that the observed activities

may be a violation of his permit.

8. On February 20, 2008, the Depar tment issued a Warning

Letter to Ms. Pepper advising her that the activities observed

by Mr. Hatch appeared to be in violation of her permit and

section 161.053(2)(a). See Department Exhibit 3.

9. After receiving a telephone call from "a citizen," o n

A pril 28, 2008, Mr. Hatch conducted a follow - up inspection of

Respondents' property. He observed the construction of wood

retaining walls along the north and south property lines ;

retaining walls still in place; the demolition and removal of a

derelict sep tic tank and drainfield seaward of maximum

construction limits; grading seaward of the new dwelling and

creation of a 24' by 30' swale with berm sidewalls (which he

believed might be for a n above - ground swimming pool); and

storage of building materials and debris seaward of maximum

construction limits. See Department Exhibit 4. Mr. Hatch's

report noted that "debris [observed during the February 5, 2008,

inspection] has been removed." Id. During the i nspection,

Mr. Spencer advised Mr. Hatch that he was doing "perc tests,"

and not installing a swimming pool.

10. On May 5, 2008, the Department issued a Notice of

Violation/Cease and Desist Unauthorized Activities Seaward of

the [CCCL] (Notice). See De partment Exhibit 5. The Notice

stated that the "violation consists of excavation, grading and

placement of fill material seaward of the [CCCL] without benefit

of a permit from the Department." Id. The Notice required

Respondents to cease all unauthorize d activities seaward of the

CCCL and to respond to the Notice within ten days of receipt .

Whether a response was filed is not of record.

11 . On May 12, 2008, Mr. Hatch conducted another on - site

inspection of Respondents' property and observed that the wood

retaining walls were still in place, and that Respondents had

extended the retaining wall on the south side of the property to

the western e nd of the existing wall . The violations observed

on the April 28, 2008, inspection persisted. He also observed

that the County had placed a stop work notice on the property.

A Violation Report summarizing these activities was prepared by

Mr. Hatch. See Department Exhibit 6.

12. On June 6, 2008, the Department issued a letter

advising Ms. Pepper that violations were occurring on her

property; that Respondents' request filed on March 18, 2008, to

" hold the file in abeyance " for 60 days pending the fili ng of an

after - the - fact permit application t hat would authorize the

retaining walls had expired; and that recently constructed

concrete sidewalks on the property were not authorized under her

permit . See Department Exhibit 7. The letter a llowed

Respondents an additional 21 days in which to file an after - the -

fact application for both unauthorized activities ; otherwise , it

warned that an enforcement action would be initiated.

1 3 . After Respondents built the retaining walls,

Dr. Reinhold, whose residence adjoins Respondents ' property to

the north, was forced to place two - by - fours against his fence

because Respondents' retaining walls and fill were causing his

fence to "bow" out. He also noted that fill is creeping under

the fence and flowing onto his yard. Because of concerns that

storm water would now be forced onto his property , i n the summer

of 2008 he engaged the services of a professional engineer "to

evaluate the conditions of [his] prop erty . . . as it relates to

problems with ongoing, adjacent construction [on Respondents'

property] ." Department Exhibit 10. The engineer's report

indicated that there were no swales on Respondents' property to

direct runoff to the front or rear yards; t hat the retaining

walls were not stabilized; that in the event of a storm surge of

ocean water, the fill and unauthorized sidewalks would have the

potential of pushing more ocean water onto the adjoining

properties; and that Respondents' deviation from per mit

requirements created a "very serious" situation. Id. These

conclusions were not disputed by Respondents.

14. Ms. Nichols, who owns the property to the south,

stated that Respondents' retaining walls were leaning on to her

property and there were gaps in the wall, which allowed run - off

onto her property. Photographs received in evidence confirmed

these concerns. See Department Exhibit 11.

1 5 . On June 5, 2009, the Department received an after - the -

fact applicatio n for a CCCL permit from Ms. Pepper. However,

the application was deemed to be incomplete in a number of

respects, including a failure to attach a letter from the County

indicating that all local zoning and setback requirements had

been satisfied. See De partment Exhibit 8.

1 6 . On May 10, 2010, the Department issued a Final Order

advising Ms. Pepper that Respondents had initiated construction

of wooden shore - normal retaining walls on the ir north and south

property lines and concrete sidewalks on the sides of the

existing single - family dwelling seaward of the CCCL without a

Department permit. At hearing, Mr. Spencer did not dispute the

accuracy of these charges.

1 7 . As mitigating circums tances, Mr. Spencer noted that he

is currently in litigation with the County seeking to obtain

approval of his site plan so that a letter indicating compliance

with local zoning requirements can be filed with the Department.

Un til he secures a letter, t he aft er - the - fact application cannot

be completed . See Fla. Admin. Code R. 62B - 33.008(3)(d). He

indicated that a hearing in the circuit court case was scheduled

on February 11, 2011, but the outcome of that matter is not of

record. In a letter dated April 15, 2010, the County advised

Respondents that their new home "contravenes local zoning

regulations , " but there are options available that would allow

construction to proceed. See Department Exhibit 12. In order

to complete constru ction of their new home, Respondents must

agree to one of the following changes : removal of the one - story

coquina residence; a reduc tion in the size of the guest house ,

private garage, or accessory family unit ; or filing an

application for a zoning varian ce to the front yard setback

requirements for the one - story coquina residence in conjunction

with one of the three reduction options d escribed above . In

addition, they must prepare and file a lot grading plan

demonstrating that any fill added will not dir ect water to

adjoining properties or block natural water flow from adjacent

properties . Id. Until these steps are taken, t he County will

not provide a letter to Respondents confirming that the proposed

activity do es not contravene local zoning and setback

requirements.

1 8 . Even though Permit No. SJ - 844 required that drainage

swales be constructed on both sides of the parcel, they were not

built because Mr. Spencer concluded they would not work and , if

installed, t hey would result in flooding on his property. After

considering several alternatives, such as vertical landscaping

and limerock, he decided that a small retaining wall would work

best. However, th is decision was the result of his own

calculations and was not based on advice from a professional

engineer . He also stated that he was advised by his engineer

that no permit was required for retaining walls. M ore likely

than not , however, the engineer was referring to requirements

for a local building permi t, and not a Department CCCL permit.

Because of the engineer's advice, Mr. Spencer stated that he did

not know he needed Department approval for the retaining walls.

1 9 . Mr. Spencer further noted that he was required to

follow structural guidelines established by the Federal

Emergency Management Agency (FEMA) and to place concrete slabs

(sidewalks) on the sides of his house to help stabilize and

support the second and third floors of the home in the event of

a large storm event.

20 . Mr. Spencer stated that he has reduced the amount of

fill authorized by the permit by 25 percent, and by installing

sidewalks in lieu of a 120 - foot driveway , he has used 1,200

cubic yards less concrete than is otherwise authorized . Even if

the corrective act ion is taken, he opined that a large storm

event will "wash away" his neighbors ' homes , whose construction

predate s the new FEMA guidelines . Mr. Spencer acknowledged that

he can easily remove the retaining walls , but if he does so,

there will be nothing to prevent runoff from his higher elevated

property onto the adjoining parcels. Finally, he expressed a

wil l in gn ess to comply with the permit conditions, but at the

same time says he wants the Department to provide "a solution"

to all of the objections to the project.

2 1 . Given the foregoing circumstances, the Department's

proposed corrective action is deemed to be reasonable, and

Respondents should remove the unauthorized retainin g walls and

concrete sidewalks and restore all disturbed areas.

CONCLUSIONS OF LAW

2 2 . The Division of Administrative Hearings has

jurisdiction over this matter pursuant to s ections 120.569 and

120.57 (1) .

2 3 . The burden of proof is on the party assert ing the

affirmative of an issue before an administrative tribunal. See ,

e.g. , Balino v. Dep 't of Health & Rehab . Servs. , 348 So. 2d 349,

350 (Fla. 1st DCA 1977). Therefore, the Department ha s the

burden of proving by a preponderance of the evidence that the

charges, corrective action, and proposed administrative fine in

the final order should be sustained.

2 4 . Section 161.053(2)(a) provides that once a CCCL is

established, no person may construct any structure, excavate,

remove any beach material, or otherwise alter any ground

elevation seaward of the CCCL without meeting the requirements

of the law. S ubs ection 161.053 (4) provides that "a permit to

alter, excavate, or construct on property seaward of established

[CCCLs] may be granted by the department" if certain

requirements are met. Subsection (6) provides that "[a]ny

coastal structure erected, or excavation created, in violation

of this section is declared to be a public nuisance and such

structure shall be removed or such excavation shall be refilled

after written notice by the department directing such removal or

filling."

2 5 . Rule 62B - 54.002(1) provides that the Department "shall

assess fines for willful violations of, or refusing to comply

with, Sections 161.041, 161.052, and 161.053, Florida Statutes,

or any rule or order prescribed by the Department thereunder."

The rule establishes a range of fines t o be assessed, depending

on whether there is major, moderate, or minor harm to the

resource or potential for harm. Subsection (3) of the rule

provides that in assessing the fine, the Department shall

consider the offender's past violations, if any, and ot her

aggravating or mitigating circumstances. "Aggravating

circumstances include prior knowledge of the rules, or willful

or knowing violations of department orders[.]" Id. "Mitigating

circumstances" include, but are not limited to , "an emergency

situati on in which activities are performed to alleviate

imminent collapse or undermining of a structure without

obtaining a permit, or obtaining a local permit for activities

and not a department permit." Id. In this case, although the

Department has character ized the violation s as posing a "minor"

potential for harm, it says they are "willful , " and it seeks to

impose the maximum fine under that category, or $1,000.00.

2 6 . The Department's charging document alleges that

Respondents have constructed wooden shore - normal retaining walls

and concrete sidewalks and performed excavation beyond the CCCL

without a Department permit. Respondents did not dispute the

accuracy of these charges, and the evidence supports a

conclusion that the violati ons occurred. While Respondents are

understandably frustrated by the ir inability to complet e the

construction of a new home, they nonetheless deviated from the

terms and conditions of the ir permit without Department

approval . Despite numerous warnings from the Department, they

have failed to take any corrective action since 2008.

Therefore, the violations are deemed to be "willful," and the

assessment of the maximum $1,000.00 fine is reasonable under the

circumstances. The proposed corrective action (removal of the

unauthorized retaining walls and sidewalks and restoration of

disturbed areas , if any ) is appropriate and should be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order sustaining the charges in its Final Order.

R espondents sh all remove the unauthorized wooden shore - normal

retaining walls and concrete sidewalks from the area s eaward of

the CCCL and restore any areas disturbed during the removal

process within 30 days after a final order is entered in this

matter. Further, Respondents sh all pay a $1,000.00

administrative fine within the same time period. The check

sh all be mai led to Administrative Enforcement Section, Ecosystem

Management and Restoration Trust Fund, Attention: Jim

Martinello, 3900 Commonwealth Boulevard, Tallahassee, Florida

32399 - 3000. The check should be payable to the Ecosystem

Management and Restoration T rust Fund and include reference to

file number VSJ 08 - 03 and OGC No. 10 - 1480.

DONE AND ENTERED this 4th day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

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 4th day of March , 2011 .

ENDNOTE

1/ At hearing, Mr. Spencer stated that while he was out of the

state in 2002 , his wife filed an application for a CCCL permit.

Because she signed the application, t he Department has directed

all correspondence since that time to her , rather than both of

the m. In their request for a hearing filed in May 2010,

Respondents listed the address of the subject property, 3100

Coastal Highway, St. Augustine, as their mailing address.

However, recent papers sent to Mr. Spencer at that address have

been returned with the notation that he had moved and left no

forwarding address. Therefore, a copy of this Recommended Order

has been sent to Edith Pepper at that address and is presumably

being forwarded to her temporary out - of - state address , and to

Mr. Spencer at what is believed to be his current mailing

address .

COPIES FURNISHED:

Lea Crandall , Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee , Florida 3 2399 - 3000

Kirk S. White, Esquire , Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee , Florida 3 2399 - 300 0

Thomas M. Beason , General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Lyle Spencer

100 Fairway Park Boulevard, Unit 1902

Ponte Vedra Beach, Florida 32082 - 2625

Edith Pepper

3100 Coastal Highway

St. Augustine, Florida 32084 - 2215

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will render a final order in this matter.