97-003116 Thomas R. Sweeney vs. Department Of Environmental Protection Status: Closed Recommended Order on Monday, May 11, 1998.

Summary: Where construction did not minimize potential for wind and water missiles, application for coastal construction control line permit denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS R. SWEENEY, )

)

Petitioner, )

)

vs. ) Case No. 97-3116

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

on March 19, 1998, in Daytona Beach, Florida, before Donald R.

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas H. Dale, Esquire

Post Office Box 14

Orlando, Florida 32802

For Respondent: Thomas I. Mayton, Jr., Esquire

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue is whether Petitioner's after-the-fact

modification application for construction activities seaward of

the coastal construction control line in New Smyrna Beach,

Florida, should be approved.

PRELIMINARY STATEMENT

This matter began on April 24, 1997, when Respondent,

Department of Environmental Protection, granted a request by

Petitioner, Thomas R. Sweeney, for a modified, after-the-fact

permit for certain construction activities seaward of the

coastal construction control line on his property located at

5917 South Atlantic Drive, New Smyrna Beach, Florida. The

letter granting the application provided, however, that the

request to build a tiki hut and sundeck and to expand an

existing open, wooden deck over an existing rock revetment had

been denied. The letter further provided that the unapproved

structures must be removed within sixty days after the issuance

of the permit. Petitioner disagreed with these latter findings

and requested a formal hearing to contest the proposed action.

The matter was referred by Petitioner to the Division of

Administrative Hearings on July 9, 1997, with a request that an

Administrative Law Judge be assigned to conduct a formal

hearing. By Notice of Hearing dated August 28, 1997, a final

hearing was scheduled on November 19 and 20, 1997, in New Smyrna

Beach, Florida. At the request of the parties, the hearing was

continued to March 19, 1998, in Daytona Beach, Florida. On

March 18, 1998, the case was transferred from Administrative Law

Judge Don W. Davis to the undersigned.

At final hearing, Petitioner testified on his own behalf

and presented the testimony of Edward B. Robinson, the building

contractor on the project. Respondent presented the testimony

of Eugene D. Chaleki, administrator of the Bureau of Beaches and

Coastal Systems and accepted as an expert in the areas of

coastal and ocean engineering, beaches and shores systems, and

coastal construction control line permitting; and Dana Latino,

an engineer in the Bureau of Beaches and Coastal Systems and

accepted as an expert in the area of coastal construction

control line permitting. Also, it offered Respondent's Exhibits

1-9. All exhibits were received in evidence. Exhibits 1 and 2

are the depositions of Allen A. Davis and Robert Bullard, both

professional engineers. The latter deposition was not filed

until April 16, 1998.

There is no transcript of hearing. Proposed findings of

fact and conclusions of law were filed by Respondent on April

23, 1998, and they have been considered by the undersigned in

the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In 1984, Petitioner, Thomas R. Sweeney, purchased a

home at 5917 South Atlantic Drive, New Smyrna Beach, Florida.

At that time, the home was approximately 3,000 square feet in

size. The home sits seaward of the coastal construction control

line (CCCL) and thus any construction activities on the premises

require the issuance of a CCCL permit from Respondent,

Department of Environmental Protection (DEP).

2. In 1987, Petitioner constructed a first floor porch,

second story addition, and wooden deck at the site without first

applying for and obtaining a CCCL permit from the Department of

Natural Resources, which was subsequently merged with DEP.

After the construction was completed, Petitioner submitted an

after-the-fact application for a CCCL permit for those

structures. Before being issued Permit Number VO-423,

Petitioner was required to pay an administrative fine.

3. Among other things, Permit VO-423 approved an already

constructed wooden deck on the eastern side of the home which

approximated 840 square feet in size. Petitioner was also given

approval for a wooden walkway with stairs that provided access

to the beach.

4. On June 1, 1995, Petitioner filed a second CCCL

application with DEP to add a 20-foot first and second story

addition with a deck to the south side of the home. After

reviewing the application, on November 9, 1995, DEP issued

CCCL Permit Number VO-627 authorizing the scope of work

identified in the permit application documents.

5. Notwithstanding the limited amount of work authorized

by the permit, Petitioner constructed a third story addition to

his home. He also removed the original wooden deck on the

eastern side of the home, and he constructed spread footers and

a foundation on top of the rock revetment for a new and much

larger deck. The new deck is approximately 2,100 square feet,

or more than 1,200 square feet larger than the original

permitted deck. In its present state, the home is approximately

5,600 square feet, and the existing eastern deck is larger than

any permitted deck on any other single-family home in Volusia

County.

6. On September 9, 1996, DEP discovered the third story

addition and the much larger wooden deck with appurtenant

structures. Presumedly at the behest of DEP, on November 22,

1996, Petitioner submitted an application for an after-the-fact

modification of CCCL Permit Number VO-627 to authorize the

previously completed, unauthorized work.

7. On April 23, 1997, DEP issued CCCL Permit Number VO-627

After-the-Fact. The permit approved the third-story addition to

the home together with a 10-foot wide wooden deck on the seaward

side of the entire third story and a 12-foot wide wooden deck on

the landward side of the third story. DEP denied, however,

authorization for Petitioner's new wooden deck on the first

floor with a tiki hut and sundeck on the ground those structures

violated Rule 62B-33.005(4)(e), Florida Administrative Code.

That rule requires that any new construction seaward of the CCCL

"minimize the potential for wind and waterborne missiles during

a storm." The issuance of the proposed agency action prompted

Petitioner to initiate this proceeding.

8. On November 3, 1997, DEP entered a Final Order

directing Petitioner to pay a fine because he illegally

constructed structures seaward of the CCCL. The order was never

appealed, and thus the time to challenge the order has elapsed.

As of the date of hearing, Petitioner had not paid the fine, and

a statutory lien has been placed on the property.

9. The Storm Surge Elevation at this site for a 100-year

storm event is 10.7 feet N.G.V.D. The Breaking Wave Crest-

Elevation for a 100-year storm event at this site is 14.9 feet

N.G.V.D. Part of the new eastern deck is located below an

elevation of 14.9 feet N.G.V.D.

10. The builder who constructed the additions, Edward

Robinson, characterized them as "above average to superior" in

quality. To minimize the possibility of the deck washing away

during a storm event, he used the "best" nails, bolts, and

concrete available. In addition, the new decking was rested

upon concrete footers for support. The footers, however, are on

top of a rock revetment, and Robinson conceded that such footers

are not as stable as a pile foundation.

11. Petitioner used coquina rock (with a low unit weight)

for his revetment. It was established that the rocks on which

the footers rest are not permanent, and they can shift during a

large storm event. In fact, shifting can occur even during a

ten-year storm, and there will be a total failure of the

revetment during a thirty-year storm event. Once the stones

move, an erosion process begins, and the deck will fail. The

accompanying high winds will then lift the wooden debris in an

airborne fashion. Depending on the strength of the storm, the

airborne debris will be a threat not only to Petitioner, but

also to his neighbors. Therefore, it is found that the existing

construction for the eastern deck does not minimize the

potential for wind and waterborne missiles during a storm, and

it thus violates Rule 62B-33.005(4)(e), Florida Administrative

Code, as alleged in the proposed agency action denying in part

the permit.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

13. As the party filing an application, Petitioner bears

the burden of proving by a preponderance of the evidence that he

is entitled to a permit. See , e . g ., Cordes v. State, Dep't of

Envir. Reg. , 582 So. 2d 652, 654 (Fla. 1st DCA 1991).

14. Section 161.053, Florida Statutes, governs coastal

construction and excavation activities seaward of the CCCL.

Among other things, Subsection (1)(a) provides that

[s]pecial siting and design considerations

shall be necessary seaward of established

coastal construction control lines to ensure

the protection of the beach-dune system,

proposed or existing structures, and

adjacent properties and the preservation of

public beach access."

15. In addition, Rule 62B-33.005(4)(e), Florida

Administrative Code, provides that DEP shall issue a permit for

construction "which an applicant has shown to be clearly

justified" by demonstrating that

(e) The construction will minimize the

potential for wind and waterborne missiles

during a storm.

In its proposed agency action, DEP relied on the foregoing rule

in denying Petitioner's request for approval of an already

constructed wooden deck with a tiki hut and sundeck on the rear

of his home.

16. The more credible and persuasive evidence supports a

conclusion that the eastern deck and appurtenant structures

constructed by Petitioner violate the foregoing rule. This

being so, the application for an after-the-fact amended CCCL

permit must be denied as to those structures.

17. Finally, at hearing, Petitioner contended that "there

is no statute, code, or regulation that prescribes and details

acceptable or unacceptable construction," and because of this,

"Respondent's statutory authority is unconstitutionally

overbroad and vague." Because the undersigned lacks authority

to determine the constitutionality of a statute, it is

unnecessary to address this contention. Key Haven Assoc.

Enterprises, Inc. v. Bd. of Trustees of the Internal Improvement

Fund , 427 So. 2d 153, 157 (Fla. 1982)("facial constitutionality

of a statute may not be decided in an administrative

proceeding").

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a Final Order denying Petitioner's application for an

after-the-fact amended CCCL permit to construct an expanded

eastern deck with a tiki hut and sun deck on his property at

5917 South Atlantic Avenue, New Smyrna Beach, Florida, and

approving the application for the structures previously

authorized by the Department in its Final Order issued on April

24, 1997.

DONE AND ENTERED this 11th day of May, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of May, 1998.

COPIES FURNISHED:

Kathy Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Thomas H. Dale, Esquire

Post Office Box 14

Orlando, Florida 32802

Thomas I. Mayton, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the Department of

Environmental Protection.