11-002600 Glenn Mark Mcalpin And Linda Mcalpin vs. Mark S. Devries, Rita L. Devries, And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, November 2, 2011.

Summary: Application for CCCL for second-tier beach house met criteria, with additional condition to avoid indirect impacts to significant dune feature.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLENN MARK MCALPIN AND LINDA )

MCALPIN, )

)

Petitioners, )

)

vs. ) Case No. 11 - 2600

)

MARK S. DEVRIES, RITA L. )

DEVRIES, AND DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

On August 1 and 10 , 2011 , a final administrative hearing in

this case was held in Tallahassee , before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings

(DOAH) .

APPEARANCES

For Petitioner s : Ross Stafford Burnaman, Esquire

1018 Holland Drive

Tallahassee, Florida 32301 - 4508

For Respondent Department of Environmental Protection:

Kelly L. Russell, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3 000

For Respondent Mark S. DeVries and Rita L. DeVires:

E . Dylan Rivers, Esquire

Ausley and McMullen, P.A.

123 South Calhoun Street

Tallahassee, Florida 32301 - 1517

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Environmental Protection (DEP) should grant the application

filed by the DeVries for a coastal construction line (CCCL)

permi t to build a house (with dolomite drive, septic tank, and

drain field ) and a dune walkover seaward of the CCCL on their

property on the St. Joe Peni nsula in Gulf County (Permit GU -

501 ).

PRELIMINARY STATEMENT

DEP gave notice of its intent to grant the DeV ries '

application and issue Permit GU - 501 , and Petitioners requested

an administrative hearing. Petitioners ' Amended Petition for

Administrative Hearing was referred to DOAH , and the final

hearing was scheduled for August 1, 2011 .

The parties filed a Pre - Hearing Stipulation on July 27,

2011. The final hearing could not be completed in one day . It

was completed on August 10.

At the final hearing, Joint Exhibits 1 and 2 (A and B) were

received. T he applicant called: Rita DeVries; Delores Windolf,

a n expert in coastal construction; Thomas Driggers, P.E., an

expert in structural engineering; and Michael Walther, P.E., an

expert in coastal engineering . The applicant had Respondent ' s

Exhibits 1 - 3 (A and B), 7, 8, 9, 14, and 16 admitted in

evidence. DE P called Tony McNeal, P.E., the Administrator of

DEP ' s CCCL Program, and an expert in coastal engineering, and

had DEP Exhibits 1 and 3 - 7 admitted in evidence. Petitioners

called Michael Dombrowski, P.E., an expert in coastal

engineering, and had Petition ers ' Exhibit s 10 - 12, 18, 26 - 28, and

31 admitted in evidence. (Petitioners also had Exhibit 10 from

the deposition of Glenn Mark McAlpin , M.D., admitted in evidence

as Respondent ' s Exhibit 11, which also was later cross -

designated by the DeVries and receiv ed as part of Petitioners '

Exhibit 26, which includes designated portions of the deposition

of Dr. McAlpin) .

A Transcript of the testimony and proposed recommended

orders were filed and have been considered.

FINDINGS OF FACT

The Neighbors

1. Mark and Rita DeVries own 0.163 acre in Block 6 of

Peninsular Estates, which is on the St. Joe Peninsula in Gulf

County. The St. Joe Peninsula is oriented approximately north

and south, with the water of the Gulf to the west. DEP Monument

R - 83 is on the DeVries ' property.

2. Linda McAlpin also own s property in Block 6 of

Peninsular Estates seaward of the DeVries ' property . She and

her husband, Dr. Glenn Mark McAlpin, bought the property in

2001. The dunes on the property had been cleared prior to 1973

for construction of a beach house and driveway. The prior

owner ' s beach house was then damaged by major storms. In 2001

and 2002, the McAlpins got a CCCL permit to build a pile -

supported 5,000 square foot, three - story house over a concrete

slab used as a parking area , with a dolomite drive way, on her

property . There is no private property to the west (i.e.,

seaward) of her property.

3. In 2006, Dr. McAlpin quitclaimed his legal interest to

his wife to insulate it from his potential professional

liabilities . Except for the legal consequences of the quitclaim

deed, the McAlpins continue to treat the property as a marital

asset. Dr. McAlpin continues to handle practically all matters

relating to the maintenance of the house, including repairs

necessitated by major storms and beach erosion.

The Beach and Dune System

4. Besides the McAlpins, t here are beach houses to the

east (landward) and to the north of the DeVries ' property . The

house to the north was moved landward from its original location

after it suffered major storm damage in 2005. It used to be

north of the McAlpin house. There is a house to the south of

the McAlpin house. Except for the house that was moved, there

is a continuous line of construction seaward of the CCCL to the

north and so uth along the line between the McAlpin house and the

house to the south.

5. The McAlpin house also s uffered damage from the storms

of 2004 and 2005. Sand sediment under the seaward side of the

house was scoured out and undermined , and part of the frangible

concrete slab and some of the plumbing under that part of the

house dropped to the new, lower sand surface. The McAlpins had

sand brought in to place under the house and began to build a

seawall around the pilings and new sand until the seawall

project w as halted for failure to obtain a permit.

6. In 2008 and 2009 , a beach restoration project was

installed on the peninsula, which added sand to the beach and

formed a dune immediately seaward of the McAlpin house.

7. There is a dispute whether the DeVries propose to build

on a frontal dune. The McAlpins contend that the seaward toe of

the frontal dune is seaward of their house , that its crest is on

the DeVries ' property just east of their common boundary, and

that the frontal dune extends landward approxi mately to the

DeVries ' common boundary with the property to the east.

Michael Dombrowski, P.E., gave expert coastal engineering

testimony in support of McAlpins ' contention.

8. The DeVries and DEP contend that the beach restoration

project re - created the frontal dune that was seaward of the

McAlpins ' house before the major storms of 2004 and 2005 and

that the McAlpin s ' house sits on a separate primary dune

landward of the primary dune. Michael Walther, P.E., and

Tony McNeal, P.E., gave expert coastal engi neering testimony in

support of the contention of the DeVries and DEP.

9. The beach restoration project created a dune, i.e., a

mound or bluf f of sand , that is landward of the beach , parallel

to the shoreline , and continuous in the vicinity. The dune has

been planted with native vegetation that is thriving and

spreading. Sinc e its installation, the dune has been stable,

and sand has been accreting on the dune. The dune is of

sufficient vegetation, height, continuity, and c onfigur ation to

offer protective value up to a major, 40 - to 60 - year return

storm. As such, it is a frontal dune. See § 161.053(5)(a ),

Fla. Stat.

10. There is a trough between the dune created by the

restoration project and dune on which t he McAlpin s ' house sits.

( The trough is the landward toe of the frontal dune and the

seaward toe of the dune under the McAlpin house ) . The latter

dune system crests at approximately 18 feet North American

Vertical Datum of 1988 (NAVD) on the DeVries ' property a litt le

landward of the common boundary between the two properties. It

is a significant dune in that it has sufficient height and

configuration and vegetation (especially on the DeVries '

property, which is heavily vegetated) to provide protective

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

alterations made to the McAlpin property by the prior owner

adversely affected the alongshore continuity of the dune system,

but it still is a primary dune in that it affords a measurable

level of protection to upland property and structures from the

predictable erosion and storm surge levels associated with

coastal storm events. See Fla. Admin. Code R. 62B -

33.002(17)(b).

The Proposed Beach House

11. The DeVries ' application is to build a pile - supported

3,000 squ are foot, two - story house over a concrete slab used as

a parking area, with dolomite drive and a dune walkover. The

house would be up to approximately 110 feet seaward of the CCCL,

landward of the adjacent McAlpin house, and landward of the 30 -

year erosio n line (DEP ' s projection of the seasonal high - water

line 30 years in the future) . It is undisputed that the

proposed construction will conform to the requirements of the

Florida Building Code.

12. The DeVries ' pr oposed house would be on 18 one - foot

square piles , with two eight - inch square piles supporting the

wooden deck. This construction method, which is standard,

minimizes impacts from erosion and scour.

13. The DeVries propose a septic tank and drain field

between the house and the common boundary with their neighbor to

the east (i.e., the landward side of the property). This

optimal location for the septic tank and drain field is made

possible by the orientation and dimensions of the proposed house

(a rel atively narrow rectangle with the longer sides in the

north - south direction).

14. Petitioners contend that impacts should be minimized

by requiring construction of a narrower, taller structure. The

footprint already is smaller than the footprint of the Mc Alpins '

house. Requiring a further reduction would create problems in

the design of the interior space of the house. It was proven

that the dimensions of the house proposed by the DeVries is

reasonable and sufficiently minimizes impacts.

15. There will be no net excavation of in situ sand for

the construction authorized in proposed Permit GU - 501. Sand

excavated for the septic tank and drain field, along with

additional sand brought to the construction site, will be used

to fill a bowl - like feature in the middle of the DeVries '

proper ty and level the ground for the concrete slab under the

DeVries ' proposed house. There will be a net addition of sand

to the site.

16. The concrete slab beneath the DeVries ' proposed house

is designed to be partially cut so as to break into smaller

pieces in a catastrophic storm event and not cause collapse,

displacement, or other structural damage to the elevated portion

of the building or supporting foundation system. Cf. Fla.

Admin. Code R. 62B - 33.002(9).

17. The concrete slab proposed beneath the house was

reduced in size to eliminate a roughly seven - foot by 16 - foot

rectangle in the northwest corner and not to disturb a higher

dune feature that exists in that location.

18. Petitioners contend that the DeVries ' concrete slab

could be further reduced in siz e to minimize impacts to the

primary dune. However, it was proven that the size of the

concrete slab is reasonable and sufficiently minimizes impacts.

19. The driveway authorized by proposed Permit GU - 501 will

narrow from approximately 30 feet wide at the house to

approximately 12 feet at the County right - of - way , which reduces

impacts (and is narrower than the McAlpins ' driveway) .

Petitioners contend that the driveway should be narrower to

minimize impacts. It was proven that the width of the proposed

dri veway is reasonable and sufficiently minimizes impacts.

20. Frangible curbing is proposed along both sides of the

driveway. This will prevent or discourage driving elsewhere on

the lot.

The Proposed Dune Walkover

21. T he DeVries ' proposed dune walkover woul d be connected

by stairs to a wooden deck off the northern end of the first

story of the house. From the stairs, the dune walkover proceeds

for a short distance in a northerly direction, then proceeds in

a westerly direction towards the beach within a 10 - foot wide

access easement. It would be four feet wide and at least two

feet above the ground surface and would pass within ten to 20

feet of the north side of the McAlpins ' house. It would be

supported by four - inch by four - inch wooden piles.

22. Petitioners contend that the DeVries ' proposed dune

walkover should be denied because there is a public beach access

off White Sands Drive approximately 500 feet to the south . The

purpose of the dune walkover would be to avoid the impacts that

would occu r if people staying at the DeVries ' beach house use

the beach access easement instead of the public access. The

existence of the public access is not a ground to deny private

beach access via a dune walkover that meets CCCL permitting

criteria.

23. Petitio ners also contend that the proposed dune

walkover sh ould be denied because a ground - level foot path was

not considered. Since the purpose of the dune walkover is to

avoid the impacts of an on - grade footpath, that option was

considered and rejected.

24. Petitioners contend that the proposed dune walkover

should be reduced to three feet . But it was proven that the

proposed four - foot width is standard and reasonable; that the

construction method alre ady minimizes impacts; and that the

impacts from a three - foot wide walkover would not be much less

than the proposed walkover.

25. Petitioners also contend that the DeVries ' dune

walkover should use rounded piles, not square ones as proposed.

They base this contention on DEP ' s Beach and Dune Walkover

Guidelines ( Dune Walkover Guidelines) , which state that rounded

piles are preferred. Rounded piles are not mandatory, and it

was proven that the proposed piles are reasonable and

su fficient .

26. Petitioners contend that the proposed dune walkover

actually is wider than four feet overall because the application

drawings make it appear that the wooden piles are outside the

walkway. However, it was proven that the drawings are in error

to that extent and that the maximum width of the dune walkover

actually will be fou r feet, as required by special condition 8

of proposed Permit GU - 501 .

27. Petitioners contend that the proposed dune walkover

must be denied because the site plan depicts it as terminating

on the frontal dune created by the 2008 beach restoration

project , which is contrary to the Dune Walkover Guidelines .

Petitioners also contend that, while the Dune Walkover

Guidelines require adequate elevation to clear the vegetation on

the dunes, every part of the proposed walkover may not clear the

dune entirely, acco rding to the elevations in the site plan and

construction drawings in the DeVries ' application. Special

condition 8 of proposed Permit GU - 501 address es Petitioners '

con tentions . It requires the proposed dune walkover to extend

up to (but more than ten fe et seaward of) the existing line of

vegetation (not the lin e of vegetation at the time of the survey

included as part of the DeVries ' application) and requires that

" the deck of the walkover structure shall maintain an elevation

above the existing dune veg etation canopy . . . . " Also, under

special condition 8, " [t]he optimum siting of the walkover

structure shall be determined by the [DEP] staff representative

during the preconstruction conference to provide maximum

protection to the existing dune topogra phy and vegetation

located on the site. " This will ensure compliance with the Dune

Walkover Guidelines , which defines optimal siting .

28. Petitioners contend that the proposed dune walkover

must be denied because the DeVries ' beach access easement does

not extend to the existing vegetation line. Proposed GU - 501

does not authorize a trespassing. See Fla. Admin. Code R.

62 B - 33.0 155(4). If a dditional access easement is required to

reach the beach , it will have to be acquired . Otherwise, the

proposed dune walkover cannot be built.

29. To mitigate for the minimized impacts from the

DeVries ' proposed construction, special condition 5 of proposed

Permit GU - 501 requires the DeVries to " plant a mix of a minimum

of three nat ive salt - tolerant species within any disturbed areas

seaward of the control line, including the septic tank and drain

field area. " Obviously, there will not be mitigation planting

where the concrete slab and dolomite driveway will be. The

plants must be indigenous species or approved by DEP, and " a

minimum of 80 percent of the planted areas shall be covered with

the selected species. " Sod and planting invasive nuisance

species are not authorized. In addition, the site plan, which

is part of the applicat ion, has a proposal to " maintain [planted

native vegetation] adequate by temporary irrigation. "

30. Petitioners contend that the GU - 501 conditions are not

sufficient because the indigenous plants are not specified.

However, the evidence provided reasonable assurance that

appropriate species would be planted.

31. Petitioners also contend that the GU - 501 conditions

are not sufficient because the success c riteria are inadequate .

Specifically, Petitioners compare the 80 percent coverage

requirement in special condition 5 with the 90 percent success

rate after 180 days and after 360 days required by the

conditions of the beach restoration project . T he beach

restoration project ' s conditions could be viewed as less strict

than the GU - 501 conditions . In any event, the GU - 501 conditions

provide reasonable a ssurance of mitigation of the impacts .

32. Petitioners contend that temporary impacts are not

mitigated. However, temporary impacts will be minimized by

special conditions 1 (pre - construction conference) and 3

(requirement of optimal construction fencing, including to

protect the dune feature at southwest corner of the DeVries '

property), 4 (only minimum disturbance required for construction

allowed), and 9 (requirement to remove all rubble and

construction debris to a location landward of the CCCL). This

small level of risk from temporary distur bances during

construction and before mitigation plantings take hold is

unavoidable. It does not warrant the denial of a CCCL permit.

33. In accordance with DEP ' s requirements, the proposed

dune walkover is designed as a minor, expendable structure, and

pa rtitions of the house are designed to break away or be

" frangible " Ï i.e., to " collapse from a water load less than that

which would occur during a 100 - year storm event without causing

collapse, displacement, or other structural damage to the

elevated portion of the building or supporting foundation

system. " See Fla. Admin. Code R. 62B - 33.002(9). These designs

help prevent larger, unmitigated storm damage to the beach and

dune system .

34. Due to its proximity, the McAlpins ' house could

sustain additi onal damage from the frangible parts of the

DeVries ' construction during such a storm . However, those risks

are contemplated by DEP ' s frangibility requirements and are

relatively small. Those risks do not warrant the denial of a

CCCL permit.

The County Right - of - Way

35. There is a paved road called White Sands Drive that

approaches the McAlpins ' dolomite driveway and the proposed

location of the DeVries ' dolomite driveway from the east. The

McAlpins ' driveway extends from their house in a southeasterly

dir ection, crosses the County right - of - way for Blue Water Circle

(which has not been built), and connects with the paved surface

of White Sands Drive in the curve between its east - west segment

and its north - south segment. The DeVries ' proposed dolomite

drive way would terminate at the County right - of - way for Blue

Water Circle to the northeast of the McAlpins ' d riveway, where

th e elevation is approximately 13 to 14 feet NAVD (similar to

the elevation of the McAlpins ' driveway).

36. There is a relatively narrow dune feature between the

McAlpins ' driveway and the DeVries ' proposed driveway that rises

to an elevation of approximately 19 feet NAVD in the center of

the dune feature. This dune is significant in that it has

sufficient height and vegetation to provide protective value.

See Fla. Admin. Code R. 62B - 33.002(17)(a). In itself, it is not

a primary dune because it does not have the configuration and

alongshore continuity to afford a measurable level of protection

to upland property and structures from the pr edictable erosion

and storm surge levels associated with coastal storm events.

See Fla. Admin. Code R. 62B - 33.002(17)(b).

37. This dune feature extends into the County right - of -

way. Depending on the route taken, a car using the DeVries '

proposed driveway might drive over or through a small part of

the extreme southeastern end of this dune feature. It might be

possible to avoid the dune feature entirely by hugging the

eastern side of the driveway and, to the greatest extent

possible, usi ng the part of the County right - of - way that is used

by the neighbor to the east to access their dolomite driveway

from White Sands Drive. If not entirely avoiding the dune

feature, it would be possible to drive over or through only a

very small part of th e dune feature where elevations are no

greater than 14 to 15 feet NAVD.

38. DEP and the DeVries contend that impacts to the County

right - of - way should not be considered because they were not

timely raised. However, Petitioners ' allegations were broad

en ough to include consideration of those impacts.

39. DEP and the DeVries also contend that impacts to the

County right - of - way are prohibited by general and special

conditions. General permit conditions include:

(f) Construction traffic shall not occur

an d building materials shall not be stored

on vegetated areas seaward of the control

line unless specifically authorized by the

permit. If the Department determines that

this requirement is not being met, positive

control measures, such as temporary fencing ,

designated access roads, adjustment of

construction sequence, or other

requirements, shall be provided by the

permittee at the direction of the

Department. . . .

* * *

(g) The permittee shall not disturb

existing beach and dune topography an d

vegetation except as expressly authorized in

the permit. Before the project is

considered complete, any disturbed

topography or vegetation shall be restored

as prescribed in the permit with suitable

fill material or revegetated with

appropriate beach an d dune vegetation.

* * *

(j) Any native salt - tolerant vegetation

destroyed during construction shall be

replaced with plants of the same species or,

by authorization of the Department, with

other native salt - tolerant vegetation

suitable for beac h and dune stabilization.

Unless otherwise specifically authorized by

the Department, all plants installed in

beach and coastal areas - whether to replace

vegetation displaced, damaged, or destroyed

during construction or otherwise - shall be

of species i ndigenous to Florida beaches and

dunes, such as sea oats, sea grape, saw

palmetto, panic grass, saltmeadow hay

cordgrass, seashore saltgrass, and railroad

vine, and grown from stock indigenous to the

region in which the project is located.

Fla. Admin. C ode R. 62B - 33.0155(3). In addition, special

condition 4 of proposed Permit GU - 501 states: " Existing

vegetation shall be disturbed only to the minimum extent

necessary to complete work within the authorized construction

limits. " Finally, proposed permit GU - 501 does not authorize the

construction of a driveway through the County right - of - way. See

Fla. Admin. Code R. 62B - 33.0155(4) (permit does not authorize

trespass).

40. Notwithstanding the conditions and limitation of

proposed GU - 501, it is reasonable to foresee that, to use the

proposed driveway, cars will drive through the County right - of -

way between the DeVries ' proposed drive way and White Sands

Drive. T he extent to which the dune feature would be impacted

must be considered in this case. See Fla. Admin. Code R.

62B - 33.002(33) (impacts can be direct or indirect).

41. It appears possible to use the DeVries ' proposed

driveway and avoid any parts of the dune feature in t he County ' s

right - of - way above the 14 - foot NAVD elevation by using the part

of the right - of - way currently being used for access by the

DeVries ' neighbor to the east. To minimize impacts, this should

be required as an additional condition of GU - 501.

42. Construction of the proposed beach house and dune

walkover on the DeVries ' property will not alter the coastal

system by measurably affecting the existing shoreline change

rate, significantly interfering with its ability to recover from

a coastal storm, di sturbing topography or vegetation such that

the dune system becomes unstable or suffers catastrophic failure

or the protective value of the dune system is significantly

lowered. As such, there will be no significant impacts. See

Fla. Admin. Code R. 62B - 3 3.002(33)(b).

CONCLUSIONS OF LAW

Standing

43. In addition to the administrative agency making the

decision (in this case, DEP), and under section 120.52(13)(a),

Florida Statutes, "specifically named" persons whose substantial

interests are being determined by the agency in the proceeding

(in this cas e, the DeVries ), section 120.52(13)(b) provides that

the term "party" includes "[a]ny other person . . . whose

substantial interests will be affected by proposed agency action

. . . ."

44. For many years, what a person seeking standing under

what is now sect ion 120.52(13)(b) had to allege and prove was

determined under the standard set out in Agrico Chem. Co. v.

Dep ' t of Envtl. Reg. , 406 So. 2d 478, 482 (Fla. 2d DCA 1981):

[B]efore one can be considered to have a

substantial interest in the outcome of the

pr oceeding he must show 1) that he will

suffer injury in fact which is of sufficient

immediacy to entitle him to a section 120.57

hearing, and 2) that his substantial injury

is of a type or nature which the proceeding

is designed to protect. The first aspec t of

the test deals with the degree of injury.

The second deals with the nature of the

injury. Although Agrico was decided on the

second prong of the test, its first prong

also has been applied to make standing

determinations.

45. More recent appellate dec isions have clarified the

first prong of the Agrico test. In order for a third party to

have standing as a petitioner to challenge agency action in an

administrative proceeding, the evidence must prove that the

petitioner has substantial rights or interes ts that reasonably

could be affected by the agency's action. See St. Johns

Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. , 54

So. 3d 1051, 1055 (Fla. 5th DCA 2011); Palm Beach Cnty. Envtl.

Coal. v. Fla. Dep't of Envtl. Prot. , 14 So. 3d 1076, 1078 (Fla.

4th DCA 2009); Peace River/Manasota Reg'l Water Supply Auth. v.

IMC Phosphates Co. , 18 So. 3d 1079, 1082 (Fla. 2d DCA 2009);

Reily Enters., LLC v. Fla. Dep't of Envtl. Prot. , 990 So. 2d

1248, 1251 (Fla. 4th DCA 2008). See also § 403.412(5), Fla.

Sta t. ( " A citizen's substantial interests will be considered to

be determined or affected if the party demonstrates it may

suffer an injury in fact which is of sufficient immediacy and is

of the type and nature intended to be protected by this chapter.

No de monstration of special injury different in kind from the

general public at large is required. A sufficient demonstration

of a substantial interest may be made by a petitioner who

establishes that the proposed activity, conduct, or product to

be licensed o r permitted affects the petitioner's use or

enjoyment of air, water, or natural resources protected by this

chapter. " ).

46. Citing Legal Environmental Assistance Foundation, Inc.

v. Department of Environmental Protection , 702 So. 2d 1352, 1153

(Fla. 1st DCA 1997), the Department and the DeVries seem to

argue that section 403.412(5) makes the demonstration of

standing under section 120.52(13)(b) easier for citizens than

for non - citizens by eliminating the need to allege a special

injury. The requirements for standing under section

120.52(13)(b) are the same for citizens and non - citizens alike.

(The decision in Legal Assistance Foundation turned on the issue

whether a foreign corporation had citizen ' s standing to

intervene under the statute; no other basis of standing was

alleged . ) If special in jury were required, the McAlpins '

alleged injuries are different in kind from the general public

at large.

47. The Department and the DeVries also argue that

Petitioners have no standing to challenge the permit because

neither is a permanent residents of F lorida; that Dr. McAlpin

has no standing because he has no legal interest in the

property; and that Mrs. McAlpin has no standing because she is

not involved in the care and upkeep of the property. These

arguments also fail. Proposed activities taking pla ce on

adjacent property could reasonably affect Petitioners '

substantial interests so as to give the McAlpins standing to

challenge them.

The Frontal Dune

48. S ection 161.053, Florida Statutes, authorizes CCCL

lines in order to protect beach - dune systems from " imprudent

construction which can jeopardize the stability of the beach -

dune system, accelerate erosion, provide inadequate protection

to upland structures, endanger adjacent properties, or interfere

with public beach access. "

49. Under section 161.053( 5)(b), the Department " may not

issue a permit for any structure, other than a coastal or shore

protection structure, minor structure, or pier, . . . which is

proposed for a location that . . . will be seaward of the

seasonal high water line within 30 years after the date of

application for the permit. " The proposed CCCL permit is not

prohibited by this statute.

50. Section 161.053(5)(c) provides that the Department may

issue a permit for a single - family dwelling seaward of the 30 -

year projection of the seas onal high water line if:

1. The parcel was platted or subdivided by

metes and bounds before the effective date

of this section;

2. The owner of the parcel does not own

another parcel immediately adjacent to and

landward of the parcel for which the

dwell ing is proposed;

3. The proposed single - family dwelling is

located landward of the frontal dune

structure; and

4. The proposed single - family dwelling will

be as far landward on its parcel as is

practicable without being located seaward of

or on the frontal dune.

51. Section 161.053(5)(a) defines a " frontal dune " as " the

first natural or manmade mound or bluff of sand which is located

landward of the beach and which has sufficient vegetation,

height, continuity, and configuration to offer protective

val ue. "

52. Although not necessary, p roposed GU - 501 could be

issued under section 163.053(5)(c) because the construction it

authorizes is entirely landward of the frontal dune created by

the beach restoration project, and all the other statutory

criteria are m et.

Adverse Impacts

53. Florida Administrative Code Rule 62B - 33.005(2)

requires an applicant to provide the Department with " sufficient

information pertaining to the proposed project to show that

adverse and other impacts associated with the construction have

been minimized and that the construction will not result in a

significant adverse impact. "

54. Rule 62B - 33.002(33) states: "' Impacts ' are those

effects, whether direct or indirect, short or long term, which

are expected to occur as a result of construction . . . . "

Subsection (b) of the rule states:

"Significant Adverse Impacts" 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 topography or

vegetation such that the dune

system becomes unstable or suffers

catastrophic failure or the

protective value of the dune

system is significantly lowered;

or

2. Cause a take, as defined in

Section 379.2431(1), F.S., unless

the take is incidental pursuant to

Section 379.2431(1)(f), F.S.

55. Rule 62B - 33.005(4) requires the Department to issue a

permit for construction which an applicant has shown to be

clearly justified by demonstrating that all standards,

guidelines, and other requirements of chapter 161, part I,

Florida Statutes, and chapter 62B - 33 have been met, including:

(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 rule 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 o r off - site

discharges associated with a coastal storm

event ;

(d) The construction will not 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 struct ure - 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 construction will not cause a

significant adverse impact to marine

turtles, or the coastal system.

56. Rule 62B - 33.002(17) states: "' 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 configuration and loc ation. "

Subsection (a) of the rule states: "' Significant dune ' is a

dune which has sufficient height and configuration or vegetation

to offer protective value. " Subse ction (b) of the rule states:

"' Primary dune ' is a significant dune which has sufficie nt

alongshore continuity to offer protective value to upland

property. "

57. R easonable assurances have been provided that t he

DeVries ' proposal will not cause significant adverse impacts,

and will not destabilize a primary or significant dune or cause

a sig nificant adverse impact due to erosion. Impacts to dunes

will have been minimized, and special condition 5 of proposed

Permit GU - 501 will be sufficient to mitigate for the minimized

impacts to vegetation from construction. The proposal will add

sandy soils and will not disturb 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 will result.

Temporary impacts from construction will be minimized by special

conditions 1, 3, 4, and 9. The DeVries ' proposal will meet the

requirements of rule 62B - 33.005(4) .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that DEP enter a final order issuing GU - 501 ,

with an additional condition to use the part of the County ' s

right - of - way currently being used for access by the DeVries '

nei ghbor to the east and avoid any parts of the dune feature in

the right - of - way above the 14 - foot NAVD elevation to access the

DeVries ' proposed driveway.

DONE AND ENTERED this 2nd day of November , 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 2nd day of November , 2011 .

COPIES FURNISHED :

Ross Stafford Burnaman, Esquire

1018 Holland Drive

Tallahassee, Florida 32301 - 4508

Kelly L. Russell, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

E . Dylan Rivers, Esquire

Ausley and McMullen, P.A.

123 South Calhoun Street

Tallahassee, Florida 32301 - 1517

Herschel T. Vinyard, Jr., 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 Protection

The Douglas Building, Mail Station 35

3900 Comm onwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days 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.