20-003760 Dar Real Estate Enterprises, Llc vs. Fedora L. Campbell And Department Of Environmental Protection Status: Closed Recommended Order on Monday, June 7, 2021.

Summary: A preponderance of the evidence demonstrates that all applicable standards, guidelines, and other permitting requirements are met, and clearly justify the issuance of a CCCL permit for the proposed Project.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D AVID M ORRIS A ND L ING L IU ,

Petitioners ,

vs. Case No. 20 - 3759

F EDORA L. C AMPBELL A ND D EPARTMENT

OF E NVIRONMENTAL P ROTECTION ,

Respondents .

/

D AR R EAL E STATE E NTERPRISES , LLC ,

Petitioner ,

vs. Case No. 20 - 3760

F EDORA L. C AMPBELL A ND D EPARTMENT

OF E NVIRONMENTAL P ROTECTION ,

Respondents .

/

R ICHARD J. T HEIDEL ,

Petitioner ,

vs. Case No. 20 - 3786

F EDORA L. C AMPBELL A ND D EPARTMENT

OF E NVIRONMENTAL P ROTECTION ,

Respondents .

/

R ECOMMENDED O RDER

A duly noticed final hearing was held in th ese consolidated case s on

February 8 through 10, 12, 15, 16, and 18, 2021, before the Hon orable

Francine M. Ffolkes, a duly - designated Administrative Law Judge with the

Division of Administrative Hearings (DOAH).

A PPEARANCES

For Petitioners: David Mark Levin, Esquire

Icard, Merrill, Cullis, Timm, Furen

& Ginsburg, P.A.

Suite 600

2033 Main Street

Sarasota, Florida 34237

For Respondent Campbell: Richard Green, Esquire

Lewis, Longman & Walker, P.A.

Suite 501 - S

100 Second Avenue South

St. Petersburg, Florida 33701

Kevin S. Hennessy, Esquire

Lewis, Longman & Walker, P.A.

Suite 620

101 Riverfront Boulevard

Bradenton, Florida 34205

For Respondent DEP: Kelley F. Corbari, Esquire

Alexis Montiglio, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

S TATEMENT OF THE I SSUE

The issue to be determined in th ese consolidated case s is whether

Respondent , Fedora L. Campbell (Campbell) , is entitled to a coastal

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

and associated structures seaward of the CCCL on Anna Maria Island, in

Manatee County, Florida.

P RELIMINARY S TATEMENT

On June 25, 2020, Respondent, De partment of Environmental Protection

(DEP), issued a CCCL permit to Respondent Campbell to construct a

single - family residence and associated structures on Anna Maria Island.

On August 3, 202 0 , Petitioners , David Morris and Ling Liu, DAR Real Estate

Ente rprises, LLC, and Richard J. Theidel ( Co - Petitioners), filed three

separate petitions challenging DEP's decision to issue the CCCL permit.

Petitioners Graham Hanson and Hazel Hanson (Hanson Petitioners ) filed a

petition on August 5, 2020. DEP referred the petitions to DOAH . The

petitions were consolidated and scheduled for a final evidentiary hearing.

Respondents filed their Joint Prehearing Stipulation on January 29, 2021.

The Co - Petitioners filed their Joint Prehearing Stipulation on the same day,

follo wed by their Amended Joint Prehearing Stipulation on February 1, 2021.

Finally, on February 3, 2021, The Co - Petitioners filed their Second Amended

Joint Prehearing Stipulation.

At the final hearing , Respondent Campbell presented the fact testimony

of Fe dora L. Campbell ; the expert testimony of Brett D. Moore (Moore) ,

accepted as an expert in coastal engineering and CCCL permitting;

Marc Damon (Damon), accepted as an expert in coastal hydrodynamic

modeling; Alec Hoffner (Hoffner), accepted as an expert in coastal ecology;

and Doug W. Aarons (Aarons). Respondent Campbell's E xhibits A - 1, A - 6

through A - 9, A - 12, A - 15 through A - 17, A - 31, and A - 32 , were admitted into

evidence. Respondent Campbell Demonstrative Exhibit No. 1 was admitted

i nto evidence.

Respon dent DEP also presented the expert testimony of Mr. Aarons ,

accepted as an expert in civil engineering and coastal engineering processes .

Respondent DEP's exhibits FDEP 1, 2, 4, and 5 (Bates 822 through 825),

w ere admitted into eviden ce. FDEP Demonstrative Exhibit No. 1 was

admitted into evidence. Respondents' Joint Exhibits J - 1 through J - 6, were

also admitted into evidence.

Co - Petitioners presented the fact testimony of Graham Hanson,

Ste v en Hanson, David Morris, David A. Ridley (Ridley) , Richard J. Theidel,

Tony McNeal (McNeal) , and Rolando Gomez (Gomez) by deposition.

Co - Petitioners presented the expert testimony of Michael Walther (Walther) ,

accepted as an expert in coastal engineering. Co - Petitioners' E xhibits P - 7

through P - 13, P - 17 ( subparts 1 through 4, 7 through 9, 16 ) P - 24, and P - 27

(Bates 1994 through 2002), were admitted into evidence.

After the final hearing , the Hanson Petitioners sold their home on Anna

Maria Island and voluntarily dismissed their petition. On April 30, 2021, the

undersigned issued an Order Closing File in DOAH Case No. 20 - 378 8.

The 13 - volume Transcript of the final hearing was filed with DOAH on

April 26, 2021. All parties filed proposed recommended orders on May 17,

2021, that were carefully considered in the preparation of this Recommended

Order.

References to the Florida Statutes are to the 2020 version unless

otherwise stated.

F INDINGS OF F ACT

The following Findings of Fact are based on the stipulations of the

parties and the evidence ad duced at the final hearing.

Parties

1. Respondent Campbell owns an undeveloped lot located at 105 Elm

Avenue, Anna Maria , in Manatee County, Florida (Campbell Property),

where she proposes to construct a residence and related structures that are

authorized by the CCCL permit challenged by Petitioners.

2. At the time of the final hearing, the Hanson Petitioners were the record

owners of the property located at 107 Elm Avenue , Anna Maria (Hanson

Property) , which is located adjacent to and landward of the Campbell

P roperty. From the Hanson Property, there is currently an unobstructed view

of the Gulf of Mexico across the undeveloped Campbell Property , a dune

system , and the beach.

3. Petitioner s , Morris and Ling Liu , are the record owners of the prope rty

located at 108 Elm Avenue , Anna Maria (Morris Property) . This property is

located on the west side of Elm Avenue, directly across and northwest of the

Hanson P roperty. From the Morris Property, there is currently an

unobstructed view of the Gulf of Mex ico acr oss at least two private ly owned

undeveloped lots , a dune system , and the beach.

4. Petitioner, DAR Real Estate Enterprises, LLC, is the record owner of

the property located at 109 Sycamore Avenue , Anna Maria (DAR Property).

This property is locate d directly adjacent and west of the Morris P roperty.

From the DAR Property, there is currently an unobstructed view of the Gulf

of Mexico across at least two private ly owned undeveloped lots , a dune

system, and the beach.

5. Petitioner, Richard J. Th ei del, is the record owner of the property

located at 100 Sycamore Avenue , Anna Maria ( Th ei del Property). This

property is located on the opposite side of Sycamore Avenue, and northwest of

the DAR P roperty. From the Th ei del P roperty, there is currently an

un obstructed view of the Gulf of Mexico across at least one private ly - owned

undeveloped lot , a dune system, and the beach.

6. DEP is the agency responsible for regulating construction activities

seaward of the CCCL pursuant to Part I of Chapter 161, Florida Statutes,

and Florida Administrative Code Chapter 62B - 33.

The Project Site and Vicinity

7. DEP established a CCCL for Anna Maria Island in Manatee County .

The Campbell Property is located within the local jurisdiction of the City of

Anna Maria .

8. The Campbell Property was platted in 1922 as Lot 9, Block 35, First

Addition of Anna Maria Beach Subdivision, prior to the effective date of

s ection 161.053, Florida Statutes. Mrs. Campbell does not own another parcel

of land immediately adjacent to Ca mpbell Prop erty .

9. The Campbell Property is located approximately 336 and 312 feet

seaward of the CCCL, and approximately 182 and 302 feet to the south of

DEP ref erence monument R - 7.

10. All the beaches of Anna Maria Island are designated " critically eroded "

and are included in the State's Strategic Beach Management Plan. T he

designation helps DEP identify coastline s around the state that n eed beach

restoration. Inclusion in the State's Strategic Beach Management Plans

means that a segment of coastline is prioritized for beach restoration funding.

The designation is not part of the CCCL permitting process.

11. The evidence demonstrated that there were two beach nourishment

projects on the segment of coastline that includes t he Campbell Property. In

2002 , approximately 150,000 cubic yards of sand were added to the coastline

between DEP reference monuments R7 and R8. In 2011, approximately

25,000 cubic yards were again added to this segment of coastline. T here is a

continuing commitment by federal government to renourish the beach in this

segment of coastline until 2043.

12. Over the last 19 years , since the initial beach nourishment, the

coastline seaward of the Campbell Property continued to accrete and t he

beach is stable. Th is beach nourishment project was successful.

Co - Petitioners ' expert , Mr. Walther, acknowledged that the beach

nourishment project was successful and the beach was stable when he

testified ten years ago in support of the Hanson app lication for a CCCL

permit to build the current residence on the Hanson Property.

13. In 2001, DEP established an Erosion Control Line (ECL) in advance of

the 2002 beach nourishment project. An ECL is a property boundary denoting

the landward extent of sta te - owned s ubmerged lands. An ECL is generally a

line of prohibition and no major projects may be issued a permit to construct

s eaward of an ECL.

14. The Campbell Property is approximately 80 feet landward of the ECL

a nd in excess of 300 feet landward of t he mean high water line (MHWL) of

the Gulf of Mexico. The property is densely vegetated with native species, but

the site has been impacted by invasive species such as Brazilian pepper and

Australian pine.

15. The preponderance of the evidence demonstrated that a frontal dune

system exists seaward of the Campbell Property , which runs from south of

the Campbell Property to well north beyond the Campbell Property. The

frontal dune is of sufficient continuity, sufficient height for the area, is

suf ficiently vegetated to allow structural support, and is appropriate ly

configur ed to provide protection to upland properties .

16. Seaward of the frontal dune system is a wide beach extending down to

the water line. The historical analysis of the area indica tes that the beach

and dune system show ed continuous growth and stability since 1974 .

17. The evidence established that most of the Co - Petitioners' homes were

constructed in the immediate area of this segment of coastline after 2002.

Since 2002, t he front al dune system grew in size and bec a me more stable.

Permitting Background

18. On February 13, 2020, Respondent Campbell applied for a CCCL

permit from DEP.

19. Campbell's CCCL permit application proposed construction of a

single - family dwelling seawar d of the CCCL and seaward of the 30 - year

erosion projection (30YEP) prepared by DEP for the permit application

(Project) .

20. Respondent Campbell obtained a letter of no objection from the City of

Anna Maria that the Project would not contravene local setback

requirements. The single - family home would be sited as far landward on the

Campbell Property as possible without contravening local setback

requirements.

21. To the north of the Campbell Property is a platted right - of - way

known as Elm Avenue, and to the south of the Campbell Property is another

right - of - way that runs to the beach called Pine Avenue.

22. Based on the application submittals and subsequent information

provided in response to DEP's r equests for additional information, DEP

issued a Not ice to Proceed and Permit for Construction on June 25, 2020 .

23. The Project dimensions are for two habitable floors, above a first - floor

parking slab that is an uninhabitable floor . T he home would be elevated on

pilings above the 100 - year storm elevation.

Permitting Criteria

24. Respondent Campbell demonstrated by a preponderance of the

evidence that the project meets all relevant rule criteria of rule 62B - 33 . There

are no other projects in the immediate area currently pending review by DEP

or which were i ssued a permit during the pendency of Respondent Campbell 's

p ermit application.

25. The Project is a single - family structure with no ancillary structures.

The Project includes an approximately 18 - foot wide gravel driveway to the

north , a one - foot deep swal e to the east, west, and south sides of the

single - family structure, as well as the east and west sides of the driveway . A n

access staircase would be attached to the northwest side of the single - family

structure. The Project also includes exterior lighting and landscaping .

26. The Project would be constructed in accordance with the applicable

Florida Building Code ( FB C) and in a manner to prevent the potential for

wind or water - borne debris in the event of a hurricane.

27. The proposed driveway an d slab would eliminate some natural

vegetation, including some sea oats and sea grasses. To mitigate for the

P roject's impact to vegetation, Respondent Campbell would install various

native, salt - tolera nt v egetation seaward and around the single - family

str ucture. DEP reviewed the P roject and determined the P roject would

minimize the potential for structure - induced scour and wind and water - borne

missiles.

2 8 . The preponderance of the evidence demonstrated that the Project

would be sited more than 140 feet la ndward of the frontal dune. Specifically,

the Project would be located approximately 1 1 7 feet from the landward toe of

the frontal dune. No construction equipment would access the Campbell

Property by way of the Gulf of Mexico. No other activity is permitt ed to

traverse or otherwise take place on the frontal dune area. The P roject is sited

sufficiently landward of the frontal dune so that construction of the P roject

would not have any im pact on the frontal dune.

2 9 . The preponderance of the evidence demonstrated that the P roject, in

conjunction with existing structures, would not have a significant adverse

impact on the frontal dune or on marine life. S ignificant adverse impact s are

those impacts that cause a measurable i nterference with the natural

functioning of the coastline system by: (1) measurably affecting the existing

shoreline change rate; (2) significantly interfering with the coastal system's

ability to recover from a coastal storm; (3) 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 (4) cause a take of protected marine turtles.

30. The topography and vegetation of the frontal d u ne is located

sufficiently seaward of the Campbell Property such that construction of the

Project would not destabilize the frontal dune .

31. The Project would not remove or disturb in situ sandy soil of the beach

and dune system to such a degree that a s ignificant adverse impact 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.

32. The Project w ould not result in an incr ease in shoreline change rates,

nor will it interfere with the frontal dune or dune system ' s ability to recover if

impacted by a major storm. The preponderance of the evidence showed that

the beach and dune system is stable and continue s to grow.

33. The P roject would not result in the net excavation of the in situ sandy

soils seaward of the CCCL. The P roject would add about 75 cubic yards of

sand to the Campbell Property.

34. The Project is designed to minimize erosion - induced surface water

runoff within t he beach and dune system and to prevent additional seaward

or off - site discharges associated with a coastal storm event.

35. The Project w ould not direct discharges of water or other fluids in a

seaward direction and in a manner that would result in signi ficant adverse

impacts. Swales w ould be installed around the property to capture water

originating on the property and divert it away from the beach and adjacent

properties.

36. T he P roject would not cause an increase in structure - induced scour of

such magnitude during a storm as to result in a significant adverse impact .

Scour is caused by water reacting with stationary objects during a storm

event and the Project would be constructed in accordance with the FBS ,

which contains provisions for reducing sc our events.

37. Any scour that may result from the Project during a storm event

would be localized to the Campbell Property as a result of water interacting

with the piles .

3 8 . The P roject would not interfere with existing public beach access at

the end of Elm Avenue .

39. The Project would not interfere with marine turtle nesting or cause a

take of marine turtle habitat. The proposed permit provides adequate special

permitting conditions as to the nature, timing, and sequence of construction

of permitted activities to provide protection to nesting sea turtles and

hatchlings and their habitat.

40. The Project would be constructed in an area primarily covered with

non - native, invasive - species vegetation and not increase adverse impact to

the beach and dune system. The proposed permit contains adequate special

permitting conditions as to the nature, timing and sequence of construction,

and the remediation of construction impacts to protect native salt - tolerant

vegetation and native plant communities.

41 . The Project is located seaward of the 30YEP line as calculated by DEP .

The 30YEP is based on DEP's projections of erosion in the area to determine

if the Project will be seaward of the seasonal high - water line within 30 years

after the date of application for the permit. As such, a 30YEP calculation is

site - specific and time - s pecific.

4 2 . The preponderance of the evidence demonstrated that Respondent

Campbell does not own any contiguous lots , and t he Project is located as far

landward as practicable on the Camp bell Property considering the local

setback requirements.

4 3 . Petitioners argued that to construct a single - family home seaward of

the 30 YEP is imprudent construction. Imprudent construction jeopardizes

the stability of the beach and dune system, accelerates erosion, provides

inadequate protection to upland structures, endangers adjacent properties, or

interferes with public beach access. See § 163.053(1)(a), Fla. Stat.

44 . The preponderance of the evidence demonstrated that the

single - family structure sited significantly landward of the frontal dune,

w ould have no impact on the ability of the dune system to provide protection

to upland properties, nor w ould the constru ction have any impact on

neighboring existing structures.

Litigated Issues: Analysis of Frontal Dune

45. The engineering/modeling analysis supports a finding that a frontal

dune exists seaward of the Campbell Property which spans from south of the

Campbell Property to the north beyond the Campbell Property.

46. While it was clear that the modeling supported a finding that the

frontal dune not only exists and provides sufficient protective value, this

finding is based on more than modeling. Respondent Campbe ll's experts and

DEP staff visited the Campbell Property on numerous occasions . Th ose visits

included w alking , observing, and taking photographs of the Campbell

Property, the dune system and the beach area to determine the existence and

protective features of the frontal dune.

47. Respondent Campbell ' s modeling report demonstrate d that the frontal

dune increased in size and height by more than ten feet since 2002. In

addition, the photographic evidence demonstrate d that native vegetation on

the frontal dune and in the area sign ificantly increased since 2002.

48. Although there are peaks and lower areas in the dune feature, the

entire frontal dune has a higher elevation than the area s seaward and

landward.

49. The Co - Petitioners argued that the public beach access constitute s a

break in the frontal dune such that the frontal dune is not continuous.

The Co - P etitioners contended that the "break" result s in a northern frontal

dune and a southern frontal dune seaward of the Campbell Property.

50. Respondent Campbell's expert, Mr. Hoffn er, persuasively testified that

t hese low areas are common given pedestrian traffic . However, these low

areas do not break up the prote ctive value of the frontal dune , as

demonstrated by the modeling results.

51. A frontal dune is defined 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 value."

§ 161.053(5)(a)1., Fla. Stat.

5 2 . The preponderance of the evidence showed that there is no specific

height or size requirements in rule or statute for a frontal dune. The size of

dunes and dune systems found on Florida's beaches vary with location.

Whether or not a dune qualifies as a f rontal dune is site - specific .

53. Because the Project would be located seaward of the 30YEP, DEP's

Coa stal Engineering and Geology Group performed an independent frontal

dune analysis for the Project. DEP's analysis found a frontal dune of

" sufficient vege tation, height, continuity, and configuration to offer protective

value " is located approximately 80 feet seaward of the ECL. The frontal dune

is consistent with the size, height, and configuration of other frontal dunes

found in the area.

54. In this hear ing, Mr. Walther testified that Anna Maria beach was

unstable. To support his argument, he relied on data from DEP showing that

the beach decreased in size from 2013 to 2018. However, the same d ata relied

upon by Mr. Walther also demonstrates that the fron tal dune increased in

height, width, and overall size over the same period. Further , the same data

over a longer time period demonstrate s that the beach significantly increased

in size over the last 40 years .

55. The significant net increase in size, including the increase in size since

the Co - Petitioners ' homes were permitted, indicates a growing and stable

beach system with a stable frontal dune that provides p rotection to upland

properties.

Litigated Issues: Minimization of Impacts

56. The requireme nt to minimize impacts means that actions should be

taken to limit impacts, not eliminate all impacts. Respondent Campbell

minimized potential impacts and provided mitigation so that no significant

adverse impact would result.

57. The proposed single - famil y dwelling is smaller than other structures

in the immediate area, including the structures on the DAR and Theidel

Properties. The proposed single - family dwelling would be lo cated as far

landward as the local government setback requirements allow.

58. The Project further minimizes potential impacts to the beach and dune

system in the following ways: 1) by adding 75 cubic yards of sand to the

Campbell Property; 2) by installing turtle - sensitive exterior lighting ; 3) by

re moving non - native invasive vegetatio n and planting n ative, salt - tolerant

vegetation ; 4) by elevating the first habitable floor to 16.5 feet NAVD, which

is four feet above the 100 - year storm elevation; 5) and placing pile caps at 3.5

feet below grade. When structural design plans are submitte d with an

application for a local government building permit, design of structure will

comply with the FBC .

Litigated Issues: Cumulative Impacts

59. E vidence was not presented to suggest that the Project would result in

adverse cumulative impacts to the beach, dune system, animal habitats, or

adjacent properties.

60. There are no other projects in the immediate area currently pending

review by DEP or which were issued a permit during the pendency of

Respondent Campbell's permit application.

Litigated Issu es : Line of Construction

61. The Co - Petitioners ' primary argument in opposition to this permit is

that CampbellÔs property is seaward of an established line of construction.

62. The line of construction analysis stems from construction of the

statutory language , which is more fully explored below in the C onclusions of

L aw. Factually, the evidence is clear that the Campbell P roperty is not

landward of an existing line of homes or other major structures.

63. Mr. Aarons, the CCCL program administrator for D EP, performed a

" line of construction " analysis for the Campbell permit application using the

three methods identified in DEP's training for coastal engineers reviewing

permit applications. Mr. Aarons persuasively testified that he could not

identify a rea sonably continuous and uniform line of construction relative to

the Campbell P roperty.

Litigated Issues : Marine Turtles

64 . Mr. Hoffner testified that marine turtles nest near the frontal dune

and do not traverse over the frontal dune to nest in areas landward of th e

dune system.

65 . CampbellÔs property is significantly landward of the frontal dune such

that it will have no impact on marine turtlesÔ ability to nest. The

Co - Petitioners presented no evidence to dispute this testimony.

Litigated Issues: Standing

66. The Co - Petitioners' claims of potential environmental harms that may

result from the Project included flooding, nesting of marine turtles, and

impacts to the protective value afforded to their properties by the beach and

dune system. The Co - P etitioners were unanimous in their concerns that a

Campbell permit would set a precedent and allow development on lots

seaward of their homes.

67. Petitioner Theidel admitted he had no evidence to support his

environmental concerns of potential flooding o r windborne missiles . He was

c oncerned that approval of the Campbell Project would create a precedent for

approval of structures on parcels seaward of his property .

68. Mr. Ridley, the corporate representative for Petitioner DAR, likewise

acknowledged th at his concern was that the permit in this proceeding would

set a precedent for future development seaward of his home.

69. Petitioner Morris testified that the belief that his property was ocean -

front was a big component of why he purchased it . He was con cerned that

Campbell ' s permit would set a precedent for future development on Anna

Maria beach, and that if the property seaward of his home was developed, it

would disrupt his view.

70. Any effects from the construction associated with the proposed Projec t

would be localized. The Co - P etitioners ' properties are far enough away so

they will not be adversely impacted by the Project.

C ONCLUSIONS OF L AW

Jurisdiction and Standard of Proof

71. DOAH has jurisdiction over the parties and the su bject matter of this

proceeding under sections 120. 569 and 120.57(1), Fl orida Statutes.

72. This is a de novo proceeding intended to formulate final agency action

rather than to review DEP's preliminary decision to issue the CCCL permit .

DEP's preliminary decision is not entitled to a presumption of correctness.

See § 120.57(1)(k), Fla. Stat.; see also, Dep ' t. of Transp. v. J.W.C. Co., Inc .,

396 So. 2d 778, 785 (Fla. 1st DCA 1981); Cap e letti Bros., Inc. v. Dep ' t. of Gen .

Serv s., 432 So. 2d 1359, 1363 (Fla. 1st DCA 1983).

73. The standard of proof in this case is a preponderance of the evidence.

See § 120.57(1)(j), Fla. Stat .

74. Respondent Campbell bears both the initial burden of going forward

with the evidence and the ultimate burden of proving entitlemen t to the

permit by a preponderance of the evidence . Respondent Campbell must prove

that the Project me e t s the applicable requirements of section 161.053 and

chapter 62B - 33.

75. Section 161.053(4)(a)3. provides that DEP may authorize a structure

seaward of a CCCL, upon receipt of an application from a property owner and

" upon consideration of facts and circumstances, including . . . potential effects

of the location of the structures or activities, including potential cumulat ive

effects of proposed structures or activities upon the beach - dune system,

which, in the opinion of the department, clearly justify a permit. "

76. Rule 62B - 33.005(4) states that DEP " shall issue a permit for

construction which an applicant has shown to be clearly justified by

demonstrating that all standards, guidelines, and other requirements set

forth in the applicable provisions of part I, chapter 161, F.S., and this rule

chapter are met ."

77. Respondent Campbell demonstrated by a preponderance of the

evidence that a permit for the P roject is clearly justified because it meets all

applicable requirements of part I of chapter 161 and the rules promulgated in

chapter 62B - 33 .

Standing

78. In order to demonstrate standing to participate in an administrati ve

proceeding, a petitioner must demonstrate: " 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

pro ceeding is designed to protect." Ameristeel Corp. v. Clark , 691 So. 2d 473,

477 (Fla. 1997) . The first aspect of the test deals with the degree of injury and

the second with the nature of the injury. Id . ; see also See Agrico Chem. Co. v.

Dep't of Envtl. Reg. , 406 So. 2d 478, 482 (Fla. 2d DCA 1981), rev. den ., 415 So.

2d 1359 (Fla. 1982).

79. Agrico was not intended as a barrier to participation in proceedings

under chapter 120 , by persons who are affected by the potential and

foreseeable results of agency act ion. See Peace River/Manasota Reg'l Water

Supply Auth. v. IMC Phosphates Co ., 18 So. 3d 1079, 1082 , 10 83 (Fla. 2d DCA

2009)("[S]tanding is a legal concept that requires a would - be litigant to

demonstrate that he or she reasonably expects to be affected by the outcome

of the proceedings, either directly or indirectly." (quoting Hayes v.

Guardianship of Thompson, 952 So. 2d 498, 505 (Fla. 2006))).

80. Rather, the intent of Agrico was to preclude parties from intervening

in a proceeding where those parties' su bstantial interests are remote and

speculative. See Vill. Park Mobile Home Ass'n , Inc. v. Dep't of Bus. Reg ., 506

So. 2d 426, 433 (Fla. 1st DCA 1987). Standing is a forward - looking concept,

not to be confused with prevailing on the merits. In substantial i nterest

cases, the question is whether the party's substantial interests "could be"

affected by the proposed agency action, or whether the party's substantial

interests "could reasonably be affected by the proposed activities." Palm

Beach Cty. Envtl. Coal. v. DepÔt of Envtl. Prot. , 14 So. 3d 1076, 1078 (Fla. 4th

DCA 2009); St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist .,

54 So. 3d 1051, 1054 (Fla. 5th DCA 2011)(citing Peace River/Manasota RegÔl

Water Supply Auth. v. IMC Phosphates Co. , 18 So. 3d 1079, 1084 (Fla. 2d

DCA 2009)).

81. The Co - Petitioners proved that their substantial environmental

interests could reasonably be affected by the Project. The Co - Petitioners do

not have to prevail on the merits in order to have standing.

Permit Criteria

82. Every application seeking a CCCL permit from DEP must be reviewed

individually at the time the application is received . See § 161.053, Fla. Stat.

Rule 62B - 33.005(3)(a) provides that " [e]ach application shall be evaluated on

its own merits in m aking a permit decision; therefore, a decision by the

Department to grant a permit shall not constitute a commitment to permit

additional similar construction with in the same fixed coastal cell."

83. Rule 62B - 33.005(4) provides that an applicant has shown that

issuance of a CCCL permit is "clearly justified" by " demonstrating that all

standards, guidelines, and other requirements set forth in the applicable

provisions of part I, chapter 161, F.S., and this rule chapter are met." See also

§ 161.053(4), Fla. Stat.

84. Respondent Campbell prov ed by a preponderance of the evidence that

the CCCL standards, guidelines, and other applicable requirements were met

by the permit application and the evidence adduced in the final hearing .

See § 16 1.053(4) and (5) , Fla. Stat.; Fla. Admin. Code R. 62B - 33.005 (2), (3),

(4) , (6), (9) , (11), (12), and (13) ; 62B - 33.008 and 62B - 33.0081 .

30 YEP

85. Generally, major structures seaward of the 30YEP are prohibited.

See § 161.053(5)(b) and (12)(b), Fla. Stat. However, s ection 161.053(5)(c)

e xplicitly provides a statutory exception for the permitting of a single - family

structure on a parcel 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 dwelling 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 sea ward of or on the frontal dune."

§ 161.053(5)(c)1. - 4 ., Fla. Stat.

86. There is no dispute that the Project is a major structure, as defined in

r ule 62B - 33.002(55)(c)2., to be located seaward of the 30 YEP. Therefore, the

Project must meet the specific criteria set forth in s ection 161.053(5)(c), as

well as all the other criteria required to demonstrate entitlement to the

permit. See Fla. Admin. Cod e R. 62B - 33.005(11)( " In considering applications

for single - family dwellings proposed to be located seaward of the 30 - year

erosion projection pursuant to section 161.053(5), F.S., the Department shall

require structures to meet criteria in section 161.053 (5)(c), F.S., and all other

siting and design criteria established in this rule chapter. " ) .

87. Rule 62B - 33.002(11) defines "dune" as "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

location."

88. A "frontal dune" is defined as "the first natural or man - made mound or

bluff of sand which is located landward of the beach and which has sufficient

vegetation, height, continuity and configuration to offer protective value."

§ 161.053(5)(a)1., Fla. Stat.

89. "Protective value" is defined as "the measurable protective level"

afforded by the dune system to upl and property and structures from erosion

and storm surge. See Fla. Admin. Code R. 62B - 33.002(44).

90. The preponderance of the evidence demonstrates that the Project

satisfies the criteria in s ection 161.053(5)( c ). The P roject is a single - family

residentia l dwelling. The dwelling would b e located on a parcel platted well

before the effective date of the statute. Respondent Campbell does not own

the parcel immediately adjacent to and landward of the Campbell Property.

The Project would be located as far land ward on the parcel as is practicable

without being located seaward of or on the frontal dune.

91. The preponderance of the evidence shows that the single - family

structure would be located at a sufficient distance landward of the beach and

frontal dune to p ermit natural shoreline fluctuations ; preserve and protect

beach and dune system stability ; and allow natural recovery to occur

f ollowing storm - induced erosion. See Fla. Admin. Code R. 62B - 33.005(9).

Impacts

92. To obtain a permit to construct major structures seaward of the CCCL,

an applicant must demonstrate that adverse , and other impacts associated

with the construction , are minimized and the construction will not result in a

significant adverse impact. See Fla. Admin. Code R . 62B - 33.005(2).

93. Adverse impacts are those that may cause a measurable interference

with the natural functioning of the coastal system. Significant adverse

impacts are adverse impacts of such magnitude that they may alter the

coastal system by: "(a) Measurably affecting t he 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" (d) cause a take [ of marine turtles. ] "

See Fla. Admin. Code R. 62B - 33.002(26).

94. Respondent Campbell demonstrated that the impacts associated with

the Project were minimized and would not result in significa nt adverse

impact s .

9 5 . A preponderance of the evidence demonstrates that any other impacts

associated with the Project will be offset by proposed mitigation actions.

See Fla. Admin. Code R . 62B - 33.005(3)(b).

9 6 . Rule 62B - 33.005(3)(a) requires DEP to deny an application for a CCCL

permit that would result in a significant adverse impact "including potential

cumulative effects." The preponderance of the evidence demonstrates that,

taking into account potential cumulative effects, the P roject would not r esult

in a significant adverse impact.

97 . The plain language of s ection 161.053(21) vests the Florida Building

Commission with the authority to adopt and administer building standards

for coa stal structures, while preserving DEP's authority to adopt and e nforce

environmental standards. Section 553.80 , Florida Statutes, also allows a

state agency to enforce the FBC, where authorized in the state agency's

enabling legislation.

98 . Rule 62B - 33.007, which required an applicant to submit structural

design plans when applying for a CCCL permit, was repealed , effective

February 16, 2012. The criteria previously set forth in r ule 62B - 33.007 are

adopted by the Florida B uil ding Commission into Chapter 3109 of the FBC .

99 . As the title suggests, FBC Chapter 3109 sets out special construction

standards applicable to habitable structures to be located seaward of a CCCL.

F BC Section 3109.1 General, states:

The provisions of this section shall apply to the

design and construction of habitable structures,

and substanti al improvement or repair of

substantial damage of such structures, that are

entirely seaward of, and portions of such structures

that extend seaward of, the coastal construction

control line or seaward of the 50 - foot setback line,

whichever is applicable. This section does not apply

to structures that are not habitable structures, as

defined in this section. Section 1612 shall apply to

habitable structures and structures that are not

habitable structures if located in whole or in part in

special flood haza rd areas established in Section

1612.3.

100 . FBC Section 3109.1.2 Approval prior to construction, states:

An environmental permit from the Florida

Department of Environmental Protection is

required prior to the start of construction. When

issued, a copy of the environmental permit shall be

submitted to the building official. The

environmental permit may impose special siting

considerations to protect the beach - dune system,

proposed or existing structures, and public beach

access, and may condition the nat ure, timing and

sequence of construction of permitted activities to

provide protection to nesting sea turtles and

hatchlings and their habitat, including submittal

and approval of lighting plans.

101 . The specific requirements under the FBC that are relevant for DEP's

review for habitable structures constructed seaward of the CCCL, includ e

elevation certification, design and construction, foundations, piles and

columns, elevation standards, and walls and enclosures below the flood

elevation . See g enerally , Florida Building Code, Building, 7th Edition

(2020)( Section 3 109.3.2 (foundation); Section 3109.3.2.1 (piles); Section

3109.3.3 (elevation standards); and Section 3109.3.4 (enclosures below flood

level) ) .

102 . A preponderance of the evidence demonstrates that Respondent

Campbell submitted all the required plans and surveys , signed and sealed by

registered professional s pursuant to r ule 62B - 33.008(1) , to meet all the

applicable rule requirements. See also § 161.0 53(4)(d), Fla. Stat. (The

department may require engineer certifications as necessary to ensure the

adequacy of the design and construction of permitted projects); and Fla.

Admin. Code R. 62B - 33.002(4) ( "Registered Professional" means a professional

regist ered or licensed by and in the State of Florida and practicing under

Chapter 471, 472, 481, or 492, F.S.)

Line of Construction

103 . The term " line of construction " is not specifically defined in

s tatut e or rule . No specific methodology for determining a " reasonably

continuous a nd uniform line of construction" is s et out in statute or rule.

Section 161.053(4)(b) provides: " 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 un duly

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. "

104. T he use of the word "if " is permissive allowing a situation to occur

that would not otherwise be allowed. If the line exists, it is permissive in

nature, not prohibitory . The undersigned may not interpret

section 16 1.053(4)(b) in a way that would extend or modify its express terms.

See Herman v. Bennett , 278 So. 3d 178, 179 (Fla. 1st DCA 2019).

105. The evidence adduced at hearing suggests that h istorically, the

purpose of determining a line of construction was to allow new owners subject

to CCCL restrictions to align with structures that existed prior to

establishment of th e CCCL. Prior case law is clear that a line of construction

is not a line of prohibition. See, e.g., Kelly Cadillac, Inc. v. Fla. Dep't of Envtl.

Prot. , Case No. 97 - 0342 , RO ¶¶ 28 and 61 (Fla. DOAH Jan. 30, 1998; Fla.

DEP Mar. 16 , 1998).

10 6 . The preponderance of the evidence demonstrates that there is no

" reasonably continuous and uniform line of construction " established by

existing structures in the immediate or adjacent areas closer to the MHWL

than the Campbell Property.

Conclusion

10 7 . A preponderance of the evidence demonstrates that all applicable

standards, guidelines, and other permitting requirements are met, and

clearly justify the issuance of a CCCL permit for the proposed Project.

Attorney s ' Fees

10 8 . Respondent Campbell seeks an award of attorney's fees against the

Hanson Petitioners and the Co - Petitioners under section 120.595, which

requires a finding of "improper purpose" by the undersigned in this

Recommended Orde r.

10 9 . The Hanson Petitioners in Case No. 20 - 3788 took a voluntary

dismissal and were severed from the instant consolidated proceeding.

See Town of Davie v. Santana, 98 So. 3d 262 (Fla. 1st DCA 2012)(holding that

administrative law judge lacked jurisdiction to reopen case to impose

attorneys' fees under section 120.595(1), when they closed the case once the

petition was dismissed and no motion for attorneys' fees was pending).

1 10 . Section 120.595(1)(c) requires that:

In making such determination, the administrative

law judge shall consider whether the nonprevailing

adverse party has participated in two or more other

such proceedings involving the same prevailing

party and the same project as an adverse party and

in which such two or more proceedings the

nonprevailing adverse party did not establish

either the factual or legal merits of its position, and

shall consider whether the factual or legal position

asserted in the instant proceeding would have been

cognizable in the previous proceedings. In such

event, it shall be rebuttably presumed that the

nonprevailing adverse party participated in the

pending proceeding for an improper purpose.

1 1 1 . "Improper purpose" means participation in a proceeding primarily to

harass or to cause unnecessary delay or for frivolous purpose or to needlessly

increase t he cost of litigation, licensing, or securing the approval of an

activity. See § 120.595(1)(e), Fla. Stat.

11 2 . The actions of the Co - Petitioners in this proceeding do not meet the

considerations of sections 120.595(1)(c) and (e) that would justify a finding of

"improper purpose" for purposes of an award of attorney s ' fees and costs.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

hereby ,

R ECOMMENDED that DEP enter a Final Order granting Respondent

Campbell ' s app lication for a CCCL Permit to construct a single - family

residence and associated structures seaward of the CCCL on Anna Maria

Island in Manatee County, Florida.

D ONE A ND E NTERED this 7th day of June , 2021, in Tallahassee, Leon

County, Florida.

S

F RANCINE M. F FOLKES

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of June , 2021.

C OPIES F URNISHED :

Kelley F. Corbari, Esquire Richard Green, Esquire

Alexis Montiglio, Esquire Lewis, Longman & Walker, P.A.

Department of Environmental Protection 100 Second Avenue South , Suite 501 - S

3900 Commonwealth Boulevard , M ail Stop 35 St. Petersburg, Florida 33701

Tallahassee, Florida 32399 - 3000

Kevin S. Hennessy, Esquire

Noah Valenstein, Secretary Lewis, Longman & Walker, P.A.

Department of Environmental Protection 101 Riverfront Boulevard , Suite 620

Douglas Building Bradenton, Florida 34205

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000 Jason M. Miller, Esquire

Matthew Clark, Esquire

Lea Crandall, Agency Clerk Najmy Thompson, P.L.

Department of Environmental Protection 1401 Eighth Avenue West

Douglas Building, Mail Station 35 Bradenton, Florida 34205

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000 David Mark Levin, Esquire

Icard, Merrill, Cullis, Timm, Furen

Justin G. Wolfe, General Counsel & Ginsburg, P.A.

Department of Environmental Protection 2033 Main Street , Suite 600

Legal Department, Suite 1051 - J Sarasota, Florida 34237

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.