11-005313 Amanda Pope vs. Daniel And Donna Grace; Joseph And Linda Noftell; Paul And Debra Linger; Ann Pastore; Thompson And Dana Fillmer; Joseph And Dottie Scruggs; Stephen Frey; Lindsey Branlitt And Jacqueline Porter, Trustees Of The Land Trust Dated May 1, 2005; Et Al. Status: Closed Recommended Order on Friday, October 5, 2012.

Summary: Applicants failed to demonstrate entitlement to an exemption for the repair of a dune walkover pursuant to section 161.053(11)(b), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMANDA POPE AND ANASTASIA, )

INC., )

)

Petitioners, )

)

vs. ) Case No s . 11 - 5313

) 11 - 6248

DANIEL AND DONNA GRACE; JOSEPH )

AND LINDA NOFTELL; PAUL AND )

DEBRA LINGER; ANN PASTORE; )

THOMPSON AND DANA FILLMER; )

JOSEPH AND DOTTIE SCRUGGS ; )

STEPHEN FREY; LINDSEY BRAM LITT )

AND JACQUELINE PORTER, TRUSTEES )

OF THE LAND TRUST DATED MAY 1, )

2005; AND DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on April 17 and May 24, 2012 , in Jacksonville , Florida, before

Lawrence P. Stevenson, a duly - designated Administrative Law

Judge of the Division o f Administrative Hearings.

APPEARANCES

For Petitioner s : Timothy J. Perry , Esquire

Oertel, Fernandez, Bryant &

Atkinson, P .A.

Post Office Box 1110

Tallahassee , Florida 32 302

For Respondent Department of Environmental Protection :

Brynna J. Ross , Esquire

Department of Environm ental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee , Florida 32399 - 3000

For Respondents D aniel and Donna Grace ; J oseph and Linda

Oftell ; P aul and Debra Linger ; A nn P astore ; T hompson and Dana

Fillmer; J oseph and Dottie Scruggs ; S tephen Frey ; L indsey

Bram litt and Jacqueline Porter , Trustees of the Land Trust dated

May 1, 2005 :

Daniel A. Mowrey , Esquire

Mowrey, Shoemaker and Beardsley

3940 Lewis Speedway, Suite 2103

St. Augustine , Florida 3 2084

Alysson Hall Stevens, Esquire

Mowrey Law Firm, P.A.

515 North Ad ams Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue in this proceeding is w hether Respondents D aniel

and Donna Grace ; J oseph and Linda Oftell ; P aul and Debra Linger ;

A nn P astore ; T hompson and Dana Fillmer ; J osep h and Dottie

Scruggs ; S tephen Frey ; and L indsey Bram litt and Jacqueline

Porter , Trustees of the Land Trust dated May 1, 2005

(collectively referenced herein as "Applicants") qualify for an

exemption from the requirements of coastal construction control

lin e ("CCCL") permitting pursuant to section 161.053(11)(b),

Florida Statutes, for their proposed activities in regard to a

dune walkover structure seaward of the CCCL at the end of

Milliken Lane in St. Johns County, as provided in the Amended

Exemption Deter mination issued by the Department of

Environmental Protection ("Department") on September 8, 2011.

PRELIMINARY STATEMENT

Through an email t o the Department from their counsel on

March 24, 2011, Applicants requested an exemption from the CCCL

permit require ment related to repair and maintenance to be

performed on an existing dune walkover structure providing

access to the Atlantic Ocean from their neighborhood, Milliken's

Replat, in St. Johns County. The Department issued an

"Exemption Notice" to the Applic ants on March 30, 2011, that

stated as follows, in relevant part:

According to the description provided within

the request, the proposed work is to consist

of repair and maintenance of a dune

walkover, which would appear not to result

in disturbance to the dune system nor

require modification of the structure's

foundation. Therefore, the proposed work

appears to be exempt from the permitting

requirements of this Department pursuant to

s ection 161.053(11), Florida Statutes.

Please note that the work will h ave to be

conducted so as not to damage dune

topography or beach and dune vegetation, and

that the replacement of the walkover

structure or foundation members may require

a permit from the Department, either through

a field permit or an administrative perm it

under c hapter 62B - 33.008, F.A.C. The

Department does not endorse the engineering

adequacy or safety of the proposed work.

On September 8, 2011, the Department issued an "Amended

Exemption Notification" that stated as follows, in relevant

part:

This is an amended letter in response to

your request received by the Department on

March 24, 2011, for a determination of

exemption from permit requirements for the

repair and maintenance of a dune walkover

structure at the above location.

According to the desc ription provided by the

contractor, Rick Powell of Barefoot Marine,

the proposed work is to consist of repair

and maintenance of the portion of a dune

walkover located landward of the dune crest.

The repair and maintenance is to consist of

replacement of bolts, screws, plates and

other fasteners; replacement of wood members

such as handrails, posts above walkover deck

planks, deck planks and stringers; and

repairs to support members such as the

addition of sister posts next to existing

posts. Repair and m aintenance activities

shall not result in the realignment or

reconfiguration of the walkover outside of

the extents of the original structure. With

the exception of the minimal ground

disturbance required to repair posts or to

add sister posts, no vegetat ion shall be

removed nor dune topography altered.

Based on the above description, the proposed

work is not expected to cause a measurable

interference with the natural functioning of

the coastal system. Therefore, the

Department has determined that the p roposed

work satisfies the exemption requirements of

Section 161.053(11)(b), Florida Statutes.

All debris must be removed and disposed of

landward of the coastal construction control

line.

On October 7, 2011, Petitioner Amanda Pope filed a Petition

for F ormal Administrative Hearing ("Pope Petition") contesting

the Department's decision to grant the exemption. On

October 14, 2011, the Department forwarded the Pope Petition to

the Division of Administrative Hearings ("DOAH") for assignment

of an Administra tive Law Judge and the conduct of a formal

hearing. The matter was assigned DOAH Case NO. 11 - 5313.

On December 2, 2011, Petitioner Anastasia, Inc. filed a

Petition for Formal Administrative Hearing ("Anastasia

Petition") contesting the Department's decisi on to grant the

exemption. On December 9, 2011, the Department forwarded the

Anastasia Petition to DOAH for assignment of an Administrative

Law Judge and the conduct of a formal hearing. The matter was

assigned DOAH Case NO. 11 - 6248 and scheduled for hea ring on

January 5, 2012 .

On December 11, 2011, the Department filed a Motion to

Consolidate, which was granted by order dated December 20, 2011.

The final hearing was rescheduled for February 16, 2012. On the

motion of Anastasia, Inc., the case was conti nued to April 17,

2012, on which date the hearing convened. A second day of

hearing was scheduled for May 24, 2012, on which date the

hearing was completed.

At the outset of the hearing on April 17, 2012, Applicants

made an oral motion to dismiss, rais ing for the first time the

question of the timeliness of both the Pope Petition and the

Anastasia Petition. The parties were given until April 27,

2012 , to submit briefs on the issue. By order dated May 2,

2012, the undersigned denied the Applicants' motion . In their

P roposed R ecommended O rders, Applicants and the Department

continue to argue that the petitions should be dismissed, but

have not persuaded the undersigned to change the conclusion

reached in the May 2, 2011 order. 1 /

At the opening of the fina l hearing, Joint Exhibits 1

through 20 were admitted into evidence by stipulation.

Petitioners presented the testimony of Amanda Pope; Kenneth

Pfrengle, the president of and stockholder in Anastasia, Inc.;

Christopher C. Kathe, accepted as an expert in str uctural

engineering; R. Brandt Wilson, accepted as an expert in

surveying; Nancy Lowe, a former resident of Milliken Lane; Paul

Linger, a resident of Milliken Lane; and DEP employees Trey

Hatch, James Martinello, Larry Teich, and Fritz Wettstein.

Petition ers' Exhibits 2 through 9, 11 through 16, 18 through 20,

24 through 27, 29, 31, and 43 through 46 were admitted into

evidence.

Applicants presented the testimony of Robert Morgan, a

structural engineer; Rick Powell of Barefoot Marine

Construction, the cont ractor for the proposed repairs to the

dune walkover; and Donna Grace, a resident of Milliken Lane.

Applicants' Exhibits 7, 8, 12 and 16 were admitted into

evidence.

The Department presented the testimony of Tony McNeal, the

administrator of the Departmen t's CCCL program within the Bureau

of Beaches and Coastal Systems ("Bureau") , and accepted as an

expert in coastal engineering. The Department's Exhibit 1 was

admitted into evidence.

A complete transcript of the proceeding was not ordered by

any of the pa rties. Selected portions of the transcript were

filed at DOAH on July 3 and 5, 2012. The Department filed two

motions for extension of the time for filing proposed

recommended orders, which were granted by orders dated July 17

and July 26, 2012. All par ties filed P roposed R ecommended

O rders in keeping with the Order Granting Extension of Time

dated July 26, 2012. The parties' submissions have been

considered in the preparation of this Recommended Order.

All references to the Florida Statutes are to the 20 11

edition, unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of the proceeding, the

following findings of fact are made:

1. The proposed project site is located a t the seaward end

of Milliken Lane, in the development known as "Milliken's

Replat," in Crescent Beach, Florida. The development consists

of 10 lots between State Road A1A and the Atlantic Ocean. The

privately maintained Milliken Lane runs west to east,

perpendicular to A1A . Milliken Lane bisects the 10 lots, i.e.,

five lots are on each side of the lane. Lots 1 through 5 are on

the north side of Milliken Lane, and Lots 6 through 10 are on

the south side.

2. Lots 5 and 6 are the largest lots and are t he lots

nearest the ocean . Petitioner Anastasia, Inc. , owns Lot 5 and

Petitioner Amanda Pope owns Lot 6. The sole officer and

shareholder of Anastasia, Inc. , is Kenneth Pfrengle.

3. The remaining eight lots are owned by Applicants , as

follows: Steven F rey owns Lot 1; Daniel and Donna Grace own Lot

2; Paul and Debra Linger own Lot 3; Ann Pastore owns Lot 4;

Lindsey Bramlitt and Jacqueline Porter, Trustees of the Land

Trust dated May 1, 2005, own Lot 7; Joseph and Linda Noftell own

Lot 8; Joseph and Dotti e Scruggs own Lot 9; and Thompson and

Dana Filmer own Lot 10 .

4. Milliken's Replat was duly recorded on October 11,

1983 , in the Public Records of St. Johns County, Florida, Map

Book 15, Page 100.

5. The Milliken's Replat graphic representation of the

de velopment shows a line between Lots 5 and 6 and indicates that

it is a "6' WIDTH WALKWAY FOR WALKWAY TO BEACH." The indicated

walkway begins at the end of Milliken Lane and extends at least

to the CCCL. 2 / The walkway straddles Lots 5 and 6, the two lots

owned by Petitioners.

6. Milliken's Replat is also subject to a Road Maintenance

Agreement recorded by the original developers on January 28,

1994 , in the Public Records of St. Johns County, O.R. 1034,

Page 1596. The Road Maintenance Agreement provides for the

continuing maintenance of Milliken Lane and "That certain six

(6) foot wide walkway reflected on the plat running between the

cul - de - sac at the end of Milliken Lane to the Atlantic Ocean,

including existing dunes walk - over structure."

7. The Roa d Maintenance Agreement goes on to provide as

follows, in relevant part:

2. Such road and walkway shall be

maintained by the parties to this agreement,

their heirs, successors and assigns in a

condition so as to make it free and passable

in perpetuity.

3 . The costs of the maintenance of said

road and walkway shall be shared to the end

that each lot owner shall pay one - tenth of

the cost associated with maintenance costs.

Owners of multiple lots shall be responsible

for one - tenth of the cost for each lot

owned.

* * *

5. In the event that sixty percent of the

lot owners determine that maintenance work

is necessary and contract to complete same,

they shall have the right to maintain a lien

against any lot owner who refuses to pay the

assessment pursuan t to the provisions of

this agreement. Unless waived, each lot

owner shall be given a minimum of ten (10)

days' written notice of the proposed meeting

to determine assessments....

8. Petitioners purchased their respective lots subject to

the terms of Mi lliken's Replat and the Road Maintenance

Agreement.

9. On March 11, 2011, Applicant Dan Grace sent a notice to

the "Property Owners of Milliken Lane" stating that a meeting to

discuss the maintenance of Milliken Lane would take place on

March 24, 2011, pu rsuant to paragraph 5 of the Road Maintenance

Agreement. The notice went on to state that the walkover "is in

need of maintenance to maintain and preserve the integrity of

the existing walkover," and that a proposal for the cost of

repair would be present ed at the meeting. Finally, the notice

stated that a vote on the proposal would be taken at the

meeting.

10. Mr. Grace contacted Rick Powell, owner of Barefoot

Marine Construction, to provide a quote for the repair and

maintenance of the dune walkover. Mr. Powell visited the site,

took measurements, and provided a quote to Mr. Grace prior to

the March 24, 2011 , meeting.

11. On March 22, 2011, Daniel Mowrey, counsel for

Applicants , had a telephone conversation with West Gregory, an

attorney in the Depart ment's office of general counsel ,

regarding the proposed repair and maintenance to the dune

walkover.

12. The next day, Mr. Mowrey followed up with a letter to

Mr. Gregory that included copies of Milliken's Replat and the

Road Maintenance Agreement . Th e Applicants' chief concern was

Mr. Pfrengle's contention that the repair of the walkover was

subject to his consent as the owner of the property on which the

walkover sits. Mr. Mowrey stated his clients' position as

follows:

I believe the Department has taken the

position this matter has to do with Title

and/or Ownership to the property whereon

easement lies. This matter is clearly not

about ownership. The fact the easement lays

on the property of Mr. Pfrengle and Amanda

Pope is not a matter of contenti on. There

is no authority I can find that forces the

Department to obtain permission from

Mr. Pfrengle or Ms. Pope to issue this

permit. The Road Maintenance Agreement

controls and is clear as to the rights of

all owners in the Milliken Replat. Denial

o f a permit from the Department to maintain,

repair and/or replace the existing walkover

is unreasonable. All members of the

Milliken Replat have sufficient title

interest through the easement and Road

Maintenance Agreement to make application

based on rec orded rights. It appears the

Department has made the interpretation of

title interest as meaning right of

possession. This is clearly flawed.

I am fully aware that this matter may end up

in Circuit Court to resolve this dispute. I

want to be clear in m y representation of my

clients. If the Department is going to deny

this request for a permit, I would like to

know the legal justification for doing so.

The recorded documents are clear and speak

for themselves. While Mr. Pfrengle may not

want the walko ver replaced, he agreed to the

provisions of the easement and Road

Maintenance Agreement when he purchased his

home as shown on the recorded instruments.

If my clients are required to fill out a

formal written request for a permit, please

notify me and pr ovide the proper

documentation for that request. . . .

13. The owners' meeting was held on March 24, 2011,

pursuant to the March 11 notice. All of the Applicants voted in

favor of the repairs and mainten ance to the dune walkover, 3 /

making an eighty perc ent majority for the work to proceed.

Petitioners did not attend the meeting.

14. Also on March 24, 2011, Mr. Gregory sent an email to

Mr. Mowrey that read as follows, in relevant part:

After discussing this matter with the

Department's permit processor and

Mr. Mowrey, it appears your proposed

activity may be eligible for an exemption.

If you would like to pursue an exemption

determination, please send a letter

requesting the exemption to the Bureau . The

items to include in the request are listed

in 62B - 33.008(11). . . .

15. Late on the afternoon of March 24, 2011, Mr. Mowrey on

behalf of his clients emailed a written request for an exemption

from the CCCL permit requirements to David Kriger, permit

manager for the Bureau.

16. On March 30, 2011, the Department issued the Exemption

Notice quoted in the Preliminary Statement, supra .

17. On April 14, 2011, Rick Powell of Barefoot Marine

Construction provided a verbal description of the walkover

project to Fritz Wettstein, environmental manager of the C CCL

program. The project plans included the use of " sister " posts

directly abutting and fastened to the existing posts to support

the repaired structure.

18. Robert Morgan, a licensed professional engineer whose

company worked on the project for Barefo ot Marine, testified

that the timber in the existing walkover was old , possibly

warped, and did not provide a pure nailing surface. However,

the impact on the dune topography of pulling out the old posts

for replacement would have been "tremendous." "Sis tering" the

new posts to the old ones would provide the needed support while

minimizing environmental impact.

19. On April 23, 2011, Mr. Morgan's company, RGM

Engineering, Inc., provided the Applicants with two sets of

structural drawings/engineering plan s for the dune walkover , one

of which was accepted and ultimately built . The plan that was

built was designed and measured to be an exact duplicate of the

existing walkover in all dimensions. The second plan would have

lowered the rebuilt walkway, making it less visually obtrusive

to Mr. Pfrengle and Ms. Pope .

20. On September 8, 2011, the Department issued the

Amended Exemption Determination quoted in the Preliminary

Statement, supra . Based on Mr. Powell's project description,

the Department determined that the project was exempt pursuant

to section 161.053(11)(b), Florida Statutes.

21. On September 16, 2011, Bureau field inspector Trey

Hatch conducted a site inspection of the proposed construction

area and beach dune system. Mr. Hatch's written inspe ction

report stated that the existing walkover, "located within a 6'

easement area used by local neighborhood," appeared to be in

need of repair or replacement due to the age of the wood and

support hardware.

22. Mr. Powell testified that his company wai ted 21 days

after the issuance of the Amended Exemption Determination before

commencing work on the walkover.

23. Mr. Powell's company performed all the work. The

digging of postholes was done by hand, without the use of

machines. Only two workers were on the ground at a time, and

only those materials immediately required were carried to the

walkover. Materials were passed up and down to the workers on

the structure to minimize disturbance to the dune system.

24. Mr. Morgan testified that the new post s were placed

about five feet into the ground, to the depth of the old posts.

Nearly e very old post was sistered to a new post , and most of

the walkover's structure was replaced . Mr. Morgan stated that

the repaired walkway had a slightly larger east - west footprint

due to the sistered posts, but that the north - south footprint

was exactly the same as that of the old walkover.

25. As noted above, the Department's Amended Exemption

Determination found the Applicants' project exempt pursuant to

section 161.0 53(11)(b), which provides:

Activities seaward of the coastal

construction control line which are

determined by the department not to cause a

measurable interference with the natural

functioning of the coastal system are exempt

from the requirements of subs ection (4). 4

26 . Florida Administrative Code Rule 62B - 33.008 implements

section 161.053. Subsection (11) of the rule provides

specificity to the exemption provided by section 161.053(11)(b)

as follows:

Requests for the Department to determine

that the proposed activity is exempt from

permitting pursuant to the provisions of

Section 161.053(1 1 )(b), F.S., shall include,

at a minimum, a survey meeting the

requirements of Rule 62B - 33.0081, F.A.C.,

and the information requirements of

paragraphs 62B - 33.008(3) (l), (m), (n), (p),

(r), and subsection 62B - 33.008(5), F.A.C.

The Department recognizes that the

requirements specified above may not be

necessary to make an exemption

determination. In such cases, the applicant

shall, as part of the request for exemption ,

identify those requirements and state the

reason why they are inapplicable. The

Department shall waive requirements that do

not apply.

27 . The "information requirements" of r ule 62B - 33.008

referenced in the quoted portion of the rule are as follows, in

relevant part:

(3) Any person desiring to obtain a permit

for construction seaward of the coastal

construction control line (CCCL) or 50 - foot

setback from the Department. . . shall

submit two (2) copies of a completed

application form to the Bureau . . . The

application shall contain the following

specific information:

* * *

(l) Two copies of a dimensioned site plan.

The drawings shall be signed and sealed by

an architect, engineer, landscape architect,

or professional surveyor and mapper (as

appro priate) licensed in the state of

Florida. The site plan shall include:

1. The locations and exterior dimensions of

all proposed structures, including

foundations and other activities, and the

bearings and distances from the CCCL or 50 -

foot setback to th e seaward corners of the

foundations of any major structures or the

seaward limit of any coastal or shore -

protection structure.

2. Dimensions and locations of the

foundation outlines of any existing

structures on adjacent properties and

distances from th e CCCL or 50 - foot setback

to the seaward corners of the foundations of

any existing structures or the seaward limit

of any coastal or shore - protection

structure. These measurements shall include

all structures that the applicant contends

have established a reasonably continuous and

uniform construction line for permits

requested under the provisions of s ections

161.052(2)(b) or 161.053(5)(b), F.S.

3. Dimensions and locations of the

foundation outlines of any existing

structures on the subject property an d

distances from the CCCL or 50 - foot setback

to the seaward corners of the foundations of

any major structures or the seaward limit of

any coastal or shore - protection structure.

4. The horizontal location of the erosion

control line (if one exists), any contour

lines corresponding to elevation 0.00, the

approximate contour of mean high water and

the seasonal high water, and the horizontal

location of the seaward line of vegetation

and outlines of existing natural vegetation.

5. The horizontal location o f the CCCL or

the 50 - foot setback (if no CCCL is

established for the county in which the

property is located) for the full width of

the subject property, including the location

and full stamping of the two nearest

Department or published second order or

hi gher horizontal control points.

6. The location and dimensions of the

property boundary, rights of way, and

easements, if any.

7. The property owner and project name,

street address, scale, north arrow, sheet

number, and date of drawings.

8. The loca tion of work limits,

construction fences, and dune features and

vegetation to be protected during

construction.

(m) Two copies of a dimensioned grading

plan. The drawings shall be signed and

sealed by an architect, engineer, landscape

architect, or prof essional surveyor and

mapper (as appropriate) licensed in the

State of Florida. The grading plan shall

include:

1. Existing and proposed elevations,

contours and spot elevations.

2. For any proposed excavation or fill:

a. A table of all permanent, temporary, and

net excavation and fill volumes seaward of

the CCCL;

b. The storage locations and description of

handling methods for all temporary

excavation and fill material; and

c. Soil and geotechnical data for beach

compatible imported or excavate d material

proposed for placement on the beach seaward

of a frontal dune or on the sandy beach.

(n) Two copies of dimensioned cross -

sections. The drawings shall be signed and

sealed by an architect, engineer, landscape

architect, or professional surveyo r and

mapper (as appropriate) licensed in the

State of Florida. The cross - sections shall

include a typical view from the mean high

water line to the CCCL depicting all

structures and building elevations, proposed

and existing grades, subgrade construction ,

excavation, fill, and elevations for any

proposed or existing rigid coastal

structures.

* * *

(p) Details, including engineering design

computations, for any proposed waste or

storm water discharge onto, over, under, or

across the be ach and dune system, such as

storm water runoff, swimming pool drainage,

well discharge, domestic waste systems, or

outfalls. . .

(r) Two copies of detailed planting plans,

including the location of proposed plants,

existing native vegetation, and plant s to be

removed. Plans shall include a plant list

with both scientific and common names.

* * *

(5) The staff shall require the applicant

to provide other site specific information

or calculations as is necessary for proper

evaluation of the applicat ion. The

dimensions for the plans referenced in this

section shall be submitted in U.S. Customary

System units. Structures shall be located

with distances measured perpendicular to the

control line, 50 - foot setback line, or the

mean high water line, as a ppropriate. All

elevations in this rule shall be referenced

to NAVD 88 (U.S. survey foot). Site,

grading, drainage, and landscape plans as

well as cross - sections shall be dra wn to a

scale no smaller than 1' ' = 40' in the

horizontal dimension.

28 . Mr. M organ testified that a survey was not required

for this project because the plan was simply to replace an

existing walkover that was already on the ground. The existing

footprint would be maintained during construction . M r. Morgan

testified that because the project was being undertaken within

the confines of an existing structure, there was also no need

for a dimensioned site plan or a dimensioned grading plan.

29 . Mr. Morgan testified that it was necessary to provide

dimensioned cross - sections to ensure that the renovated walkover

conformed exactly to the dimensions of the existing walkover.

Those cross - sections were provided to the Department.

30 . Mr. Morgan testified that it was not necessary to

provide d etails, including engineering design computati ons, for

any proposed waste or storm water discharge onto or over the

beach and dune system because no impervious surface was being

added.

31 . Mr. Morgan testified that it was not necessary to

submit planting plans because the dunes were not being

disturb ed.

32 . Mr. Morgan testified that no other site - specific

information or calculations were necessary for the exemption

application "because it was all straightforward. There again,

it's an existing structure."

3 3 . Tony McNeal, the administrator of the CC CL program,

testified as an expert in coastal engineering. Mr. McNeal also

addressed the criteria for obtaining an exemption pursuant to

r ule 62B - 33.008(11) , and concluded that none of the items listed

in subsection (11) were necessary for the Department to

determine that the project would not cause a measureable

interference with the natural functioning of the coastal system.

34 . Petitioners offered no evidence that the requirements

of r ule 62B - 33.0081, paragraphs 62B - 33.008(3)(l), (m), (n), (p),

(r), or subsection 62B - 33.008(5) were necessary to make an

exemption determination pursuant to section 161.053(11)(b) . The

evidence demonstrated that the Applicants identif ied which of

those requirements were inapplicable and why, and that the

Department waived the inapplicable requirements. The

unchallenged testimony of Mr. Morgan and Mr. McNeal established

that the proposed project would not cause a measurable

interference with the natural functioning of the coastal system,

and that the criteria for the grant of an exemption from the

CCCL permitting requirements were met in this instance.

35 . However, the finding that the proposed project would

meet the exemption criteria of section 161.053(11)(b) does not

end the inquiry. Petitioners contend that Applicants' project

is simply not the kind of project to which the section

161.053(11)(b) exemption provision is intended to apply.

Rather, this project was of the type contemplated by section

161.053(11)(a), which provides in relevant part:

The coastal construction control

requirements defined in subsection (1) and

the requirements of the erosion projections

in subsection (5) do not apply to any

modification, maintenance, or repair of any

existing structure within the limits of the

existing foundation which does not require,

involve, or include any additions to, or

repair or modification of, the existing

foundation of that structure. ...

36. Petitioners contend that because it included

"additions to, or repair or modification of" the walkover

foundation, t he projec t should have been required to seek a CCCL

permit . Petitioners argue that the project as a whole

constituted a replacement of the existing walkover, not merely

repairs and maintenance . A s such , it was not the type of

activity that the Department should h ave consider ed for

exemption under section 161.053(11)(b) . Petitioners offered

documentation from the Department's files indicating that no

beach walkovers have been granted exemptions from the need to

obtain at least a field permit. 5 /

ey Hatch, a senior field inspector for the Bureau,

testified that he has never issued an exemption for a dune

walkover. He stated that he issues "quite a few" field permits

for walkover structures . These include permits for new

walkovers, additions, and repair and rebuilding.

38. Mr. Hatch stated that aboveground repairs to walkovers

typically do not require permits. He testified that he has

issued field permits for such repairs in order to assist

homeowners in obtaining building permits from local authorities.

However, foundation modification such as digging holes,

replacing posts or modifying the structure outside its existing

dimens ions would require a permit.

39 . Mr. McNeal testified that the Department regularly

issues permits for dune walkovers and has i ssued more than a

thousand such permits over the years. To his knowledge, the

Department has never granted an exemption under section

161.053(11)(b) for a walkover structure prior to the instant

case. Despite t his lack of precedent , Mr. McNeal , who has b een

the administrator in charge of the CCCL program since 1998,

expressed confidence that a permit was not required for this

project because the proposed activity would not cause a

measurable interference with the natural functioning of the

coastal system.

40. Petitioners contend that the walkover was not

"repaired" nor was it the subject of "maintenance." They assert

that the walkover was replaced from the foundation up, and that

such replacement makes the Applicants' project ineligible for

exemption.

41. Petitioners state that digging and setting of new

posts constituted modification of the foundation that required a

permit under section 161.053(11)(a) . The Department replies

that the exemption was not granted pursuant to section

161.053(11)(a) but u nder the standard set forth in section

161.053(11)(b). Therefore, Petitioners contentions regarding

the repair or replacement of the walkover's foundation are

irrelevant.

42 . In similar fashion, t he Department dismisses

Petitioner's contention that the sistered posts violated Florida

Administrative Code rule 62B - 34.050(19)(b), which provides:

Elevated walkovers that provide access to

the beach shall meet the following design

criteria:

* * *

(b) The piles for the walkover structure

shall not be gre ater that [sic] four by four

inch posts and shall not be encased in

concrete.

43 . Petitioners point out that by sistering the new four -

by - four posts to the existing four - by - four posts, Applicants

have created piles for the walkover structure that are now four

inches by eight inches, in excess of the maximum allowed by the

quoted rule. However, the Department points out that the quo ted

rule sets forth the conditions for general permits for

activities seaward of the CCCL , in particular for a new dune

walko ver structure . As such, the rule is irrelevant to a

consideration of whether the repairs to the already existing

walkover meet the specific criteria for an exemption pursuant to

section 161.053(11)(b) and rule 62B - 33.008(11).

44 . Petitioners argue that a form of estoppel should apply

to the Department's grant of an exemption in this case because

of prior Department actions regarding the same walkover.

In 2005, one of the Applicants in the instant case, Paul Linger,

obtained a field permit to repair the stairs on the walkover and

to install a cantilevered bench seat. Controversy ensued when

both Ms. Pope and Mr. Pfrengle objected and insisted on removal

of the bench seat. The Department ultimately decided that

Mr. Linger had installed the bench seat far ther seaward than the

permit allowed , and that the seat extended beyond the easement

onto Ms. Pope's property. Ms. Pope also raised the question

whether Mr. Linger had the authority to obtain the permit

without her permission .

45 . Jim Martinello, an en vironmental manager with the

Bureau, wrote as follows in a letter to Timothy J. Perry,

counsel for Ms. Pope, in a letter dated March 25, 2008:

In Mr. Perry's letter dated March 17, 2008,

he has advised Department staff that his

client, Amanda Pope, would b e amenable to

remove the cantilevered seating area from

her property. Pursuant to s ection

161.053(12)(c)(6), Florida Statutes, 6 / the

removal of any existing structures or debris

from the upland, provided there is no

excavation or disturbance to the existi ng

topography or beach/dune vegetation is

exempt from the Department's permitting

requirements. The installation of the

handrail would also be considered an exempt

activity; however, be advised that if

Ms. Pope proposes to install a wooden post

into the g round, then the activity would no

longer be exempt and a Department permit

would be required . If, after removal of the

cantilevered seating area and placement of

the handrail, no additional compliance

issues are identified by staff, the file on

this matte r will be closed.

Since the subject dune walkover is within an

easement, any future reconstruction or

repairs to the subject dune walkover must be

authorized with an administrative Coastal

Construction Control Line permit.

A Department field permit will not be

available for any future proposed activities

regarding the subject structure .

( e mphasis added) .

46 . In a follow - up letter dated June 19, 2008, noting that

the bench seat had been removed and the Department's file on the

matter had been closed, Mr. Martinello reiterated:

As previously stated, since the subject dune

walkover is within an easement, any future

reconstruction or repairs to the subject

dune walkover must be authorized with an

administrative Coastal Construction Control

Line permit. A Department field permit will

not be available for any future proposed

activities regarding the subject structure.

47 . With reason, Petitioners question why the Department's

representative cautioned Ms. Pope that the installation of a

single wooden post would trigger the need to obtain a permit

from the Department, but three years later the Department

determined that the installation of more than 30 posts on the

same walkover was exempt from permitting. The letters clearly

state that any future reconstru ction or repairs to this dune

walkover would require an administrative CCCL permit rather than

a mere field permit. However, three years later, no permit

whatever was required for an extensive renovation of the same

walkover.

48 . At the hearing, Mr. Mari ntello testified that the

intent of his language regarding the need for a permit was

"informational." He wanted to advise the parties that they

could not obtain a field permit for reconstruction because the

walkover was within an easement. Mr. Martinello stated that the

Department had previously decided that it would be better to use

the administrative CCCL permitting process where an easement was

involved. The greater scrutiny of that process would insure

that the applicant is eligible to obtain the per mit.

49 . Mr. Martinello stated that he defers to the opinion of

Mr. McNeal and the Bureau permitting staff as to whether an

activity qualifies for an exemption. He testified that he had

no intent for his letter to preclude anyone from ever obtaining

an e xemption to perform work on the walkover, and that in any

event he lacked the authority to make such a conclusive

pronouncement.

50. The Department and Applicants strenuously argued that

any evidence not strictly addressing the criteria for exemption

unde r section 161.053(11)(b) is irrelevant to this proceeding.

In so arguing, they seek to avoid the threshold question of

whether section 161.053(11)(b) is the applicable provision for

repair or replacement of an existing structure such as a dune

walkover. T he t estimony and the statute itself lead to the

finding that the specific provisions of section 161.053(11)(a),

not the general exemption language of section 161.053(11)(b),

should have been applied to the "modification, maintenance, or

repair" of this ex isting structure.

51. When Mr. Morgan testified to justify the lack of need

for various items listed in rule 62B - 33.008(11), he did so in

terms of section 161.053 (11)(a): it was unnecessary to provide a

ground survey , dimensioned site plan, dimensioned gr ading plan,

or other site specific information or calculations because the

project was staying within the confines of the existing

structure.

52. The Department's own personnel made it clear that

their long practice has been to apply section 161.053 (1 1)(a) to

alterations of dune walkovers. Mr. Hatch testified that he has

never issued an exemption for a dune walkover , and that his

common practice is to issue field permits for dune walkovers.

In his experience, aboveground repairs to walkovers are exem pt

and foundation modification s require a permit. Mr. Hatch was

obviously referencing section 161.053 (11)(a) in stating these

criteria.

53. Mr. Martinello's letters cautioning Ms. Pope not to

install a wooden post in the ground were plainly premised on the

section 161.053 (11)(a) limitation on changes to the foundation.

Mr. Martinello's testimony regarding his intent in writing the

letters was an unconvincing attempt to revise his views to

reflect the Department's new interpretation of the statute.

54 . The Department's own expert, the head of its CCCL

permitting program, Mr. McNeal, conceded the novelty of granting

a section 161.053 (11)(b) exemption for a dune walkover. He

could point to over one thousand walkover permits but not a

single walkover ex emption during his long tenure at the Bureau.

55. In summary, the Department misapplied the general

exemption criteria in section 161.053(11)(b) to a situation that

met the more specific criteria of section 161.053(11)(a).

Applicants should have be en req uired t o obtain either a permit

pursuant to section 161.053(11)(a) or a Department determination

that such a permit is not required because of the nature of the

work performed on the walkover .

56. Finally, Petitioners raised the issue of whether

Applicant s had the authority to obtain an exemption from the

De partment. Petitioners contended that neither Millken's Replat

nor the Road Maintenance Agreement authorized Applicants to

effect repairs on the walkover without express permission of the

property owner s, Ms. Pope and Anastasia, Inc. The Department

argued that it has no obligation to investigate ownership rights

prior to issuing an exemption. Based on the foregoing finding

that the exemption was improvidently granted, there is no need

to address this i ssue at this time .

CONCLUSIONS OF LAW

57 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

cause, pursuant to s ection 120.569 and s ubsection 120.57(1 ),

Florida Statutes (2012) .

58 . Petitioners are t he owners of the property on which

the dune walkover is located . Petitioners ' substantial rights

or interests could reasonably be affected by the Department's

decision to grant an exemption to Applicants pursuant to section

161.053(11)(b), Florida Statute s. Petitioners therefore have

standing to initiate this proceeding. See St. Johns

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

54 So. 3d 1051, 10 54 - 10 55 (Fla. 5th DCA 2011); Peace

River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co. ,

18 So. 3d 1079, 1082 - 1084 (Fla. 2d DCA 2009); Palm Beach Cnty.

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

(Fla. 4th DCA 2009) .

59. "[I] t is a well - recognized rule of statutory

construction that exceptions or provisos should be narr owly and

strictly construed." Samara Dev. Corp. v. Marlow , 556 So. 2d

1097, 1100 (Fla. 1990). See also Robison v. Fix , 113 Fla. 151,

151 So. 512 (Fla. 1933); Pal - Mar Water M gmt. Dist. v. Martin

County , 384 So. 2d 232, 233 (Fla. 4th DCA 1980); Armstrong v .

City of Tampa , 112 So. 2d 293, 298 (Fla. 2d DCA 1959). As the

parties seeking an exemption determination pursuant to section

161.053(11)(b), Florida Statutes, Applicants bear the burden of

proving by a preponderance of the evidence that they have

establ ished their entitlement to the exemption.

60 . Section 161.053(11) provides as follows, in relevant

part:

(11)(a) The coastal construction control

requirements defined in subsection (1) and

the requirements of the erosion projections

in subsection (5) do not apply to any

modification, maintenance, or repair of any

existing structure within the limits of the

existing foundation which does not require,

involve, or include any additions to, or

repair or modification of, the existing

foundation of that structure. Specifically

excluded from this exemption are seawalls or

other rigid coastal or shore protection

structures and any additions or enclosures

added, constructed, or installed below the

first dwelling floor or lowest deck of the

existing structure. The Florida Building

Commission may not adopt any rule having the

effect of limiting any exceptions or

exemptions con tained within this paragraph.

(b) Activities seaward of the coastal

construction control line which are

determined by the department not to cause a

measurable interference with the natural

functioning of the coastal system are exempt

from the requirements of subsection (4).

61 . Paragraph (a) of subsection (11) names a specific

exclusion from CCCL permit requirements: " any modification,

maintenance, or repair of any existing structure within the

limits of the existing foundation ." It then goes on to stat e a

specific circumstance that takes an existing structure beyond

the exclusion and into the need for a CCCL permit: " any

additions to, or repair or modification of, the existing

foundation of that structure ." Paragraph (b) of subsection

(11), on the oth er hand, references the general, undefined term

"activities."

62 . The facts do not admit of question that the dune

walkover at the end of Milliken Lane was an "existing

structure. " Any exemption from CCCL permitting for this

existing structure should hav e been accomplished through the

applicable paragraph (a). The Department has simply ignored the

provision that specifically references "existing structures"

such as the dune walkover in favor of consider ing the

Applicants' proposal as an "activity."

63 . The "existing structures" substance of subsection

(11)(a) has been part of section 161.053 since 1975. 7 / The

"activities" exemption language was added to the statute in

1998, without amendment of or reference to the "existing

structures" provision , save f or renumbering it . 8 / It is clear

that, whatever the term "activities" covers, the Legislature did

not intend that it subsume "existing structures " in the manner

proposed by the Department in this proceeding.

64 . Even without regard to legislative intent, the rules

of statutory interpretation provide that the more specific

statutory provision controls over the more general. "[A]

specific statute covering a particular subject area always

controls over a statute covering the same and other subjects in

more general terms. The more specific statute is considered to

be an exception to the general terms of the more co m prehensive

statute." H eron at Destin West Beach & Bay Resort Condo. Ass'n,

Inc. v. O sprey at Destin West Beach & Bay Resort Condo. Ass'n,

Inc., et al. , 94 So. 3d 623, 2012 Fla. App. LEXIS 10604, *19

(Fla. 1st DCA 2012) ( quoting McKendry v. State , 641 So. 2d 45,

46 (Fla. 1994) (internal citations omitted) ) .

65 . Applicants failed to prove their entitlement to an

exemption under section 161.053(11)( b), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order denying the application of D aniel and Donna

Grace; J oseph and Linda Oftell; P aul and Debra Linger; A nn

P astore; T hompson and Dana Fillmer; J oseph and Dottie Scruggs;

S tephen Frey; and L indsey Bramlitt and Jacqueline Porter,

Trustees of the Land Trust dated May 1, 2005, for an exemption

from the requiremen ts of coastal construction control line

("CCCL") permitting pursuant to section 161.053(11)(b), Florida

Statutes, for their proposed activities on a dune walkover

structure seaward of the coastal construction control line at

the end of Milliken Lane in St. Johns County.

DONE AND ENTERED this 5 th day of October, 2012 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5 th day of October, 2012 .

ENDNOTES

1 / The May 2, 2011, order may be found at :

http://www.doah.state.fl.us/DocDoc/2011/005313/11005313OGEN -

050112 - 15361236.pdf

2 / The drawing shows the path of the walkway extending all the

way to the ocean, but the line indicating the "6' Wid th Walkway"

appears to extend only to the CCCL.

3 / Donna Grace testified that Stephen Fry was not present at the

meeting but that he had given her his proxy to vote in favor of

the proposal.

4 / Section 161.053(4) provides:

Exce pt in those areas where local zoning and

building codes have been established

pursuant to subsection (3), a permit to

alter, excavate, or construct on property

seaward of established coastal construction

control lines may be granted by the

department as fo llows:

(a) The department may authorize an

excavation or erection of a structure at any

coastal location as described in subsection

(1) upon receipt of an application from a

property or riparian owner and upon the

consideration of facts and circumstan ces,

including:

1. Adequate engineering data concerning

shoreline stability and storm tides related

to shoreline topography;

2. Design features of the proposed

structures or activities; and

3. Potential effects of the location of the

structures or ac tivities, including

potential cumulative effects of proposed

structures or activities upon the beach - dune

system, which, in the opinion of the

department, clearly justify a permit.

(b) If in the immediate contiguous or

adjacent area a number of existing

structures have established a reasonably

continuous and uniform construction line

closer to the line of mean high water than

the foregoing, and if the existing

structures have not been unduly affected by

erosion, a proposed structure may be

permitted along such line on written

authorization from the department if the

structure is also approved by the

department. However, the department may not

contravene setback requirements or zoning or

building codes established by a county or

municipality which are equa l to, or more

strict than, the requirements provided in

this subsection. This paragraph does not

prohibit the department from requiring

structures to meet design and siting

criteria established in paragraph (a) or in

subsection (1) or subsection (2).

(c ) The department may condition the

nature, timing, and sequence of construction

of permitted activities to provide

protection to nesting sea turtles and

hatchlings and their habitat, pursuant to s.

379.2431 , and to native salt - resistant

vegetation and end angered plant communities.

(d) The department may require engineer

certifications as necessary to ensure the

adequacy of the design and construction of

permitted projects.

(e) The department shall limit the

construction of structures that interfere

wit h public access along the beach.

However, the department may require, as a

condition of granting permits, the provision

of alternative access if interference with

public access along the beach is

unavoidable. The width of the alternate

access may not be required to exceed the

width of the access that will be obstructed.

(f) The department may, as a condition of

granting a permit, require mitigation,

financial, or other assurances acceptable to

the department to ensure performance of

conditions of a perm it or enter into

contractual agreements to best assure

compliance with any permit conditions. The

department may also require notice of the

permit conditions required and the

contractual agreements entered into to be

filed in the public records of the cou nty in

which the permitted activity is located.

5 / As the name suggests, a "field permit" may be issued by a

Bureau inspector at the site of the proposed activity, if the

inspector is satisfied that the activity is suitably minor and

will have only minor impacts. Fla. Admin. Code R. 62B -

33.008(10). Mr. McNeal testified that in cases requiring a

greater level of scrutiny, the Bureau requires the applicant to

obtain an "administratively issued" permit from its main office

in Tallahassee. Mr. McNeal also testified that field engineers

are not allowed to issue permits in cases where the project is

involved in litigation.

6 / This section was revised and renumbered as section

161.053(11)(c)(6) in 2010. See Ch. 2010 - 102, § 39, Laws of

Florida.

7 / Chapter 75 - 87, section 2, Laws of Florida, added the

following subsection (8) to section 161.053:

The setback requirements defined in

subsection (1) shall not apply to any

modification, maintenance, or repair, to any

existing structure within limits of the

exist ing foundation, which does not require,

involve, or include, any additions to,

repair or modification of, the existing

foundation of that structure. Specifically

excluded from this exemption are seawalls

and any additions or enclosures added,

constructed, or installed below the first

dwelling floor or lowest deck of the

existing structure.

8 / See Ch. 98 - 131, § 2, Laws of Florida.

COPIES FURNISHED :

Timothy Joseph Perry, Esquire

Oertel, Fernandez, Bryant and Atkinson, P.A.

Post Office Box 1110

Tallaha ssee, Florida 32302

[e-mail]

Brynna J. Ross, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

[e-mail]

Alysson Hall Stevens, Esquire

Mowrey Law Firm, P.A.

515 North Adams Street

Tallahassee, Florida 32301

[e-mail]

Kenneth Pfrengle

3884 Tampa Road

Oldsmar, Florida 34677

Daniel A. Mowrey, Esquire

Mowrey, Shoemaker and Beardsley

3940 Lewis Speedway, Suite 2103

St. Augustine, Florida 320 84

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

[e-mail]

Tom Beaso n, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

[e-mail]

Herschel T. Vi nyard, Jr., Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

[e-mail]

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 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.