99-000689 J. Howard Lovett vs. Department Of Environmental Protection Status: Closed Recommended Order on Friday, July 30, 1999.

Summary: Applicant is not entitled to an after-the-fact permit. The dock presents a risk to upland properties if it is dislodged in a storm.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J. HOWARD LOVETT, )

)

Petitioner, )

)

vs. ) Case No. 99-0689

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on June 7, 1999, a formal hearing

was held in this case. The hearing location was the Washington

County Courthouse, 1293 Jackson Avenue, Chipley, Florida.

Authority for conducting the hearing is set forth in Sections

120.569 and 120.57(1), Florida Statutes. The hearing was

conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: J. Howard Lovett, pro se

3131 Lovett Road

Post Office Box 225

Chipley, Florida 32428

For Respondent: Ricardo Muratti

Assistant General Counsel

Department of Environmental

Protection

Douglas Building

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

Is Petitioner entitled to an after-the-fact coastal

construction control line ( CCCL) permit for existing construction

seaward of the CCCL in Gulf County, Florida? If not, should the

existing construction be removed? See Section 161.053, Florida

Statutes; and Chapter 62B-33, Florida Administrative Code.

PRELIMINARY STATEMENT

On December 21, 1998, a proposed final order was entered by

Respondent denying Petitioner's request for an after-the-fact

CCCL permit and requiring the removal of that construction. On

January 19, 1999, Respondent received Petitioner's challenge to

the proposed agency action. On February 16, 1999, the Division

of Administrative Hearings received a request from Respondent to

assign an Administrative Law Judge to conduct a hearing to

resolve the dispute between the parties. The case was initially

assigned to P. Michael Ruff, Administrative Law Judge. The

hearing was conducted by the undersigned based upon the

unavailability of Judge Ruff.

At hearing, Petitioner testified in his own behalf.

Petitioner's Exhibits 1 through 7, 9, and 11-16, were admitted.

Petitioner's Exhibit 10, was denied admission. Robert M.

Brantly, Jr., P.E., testified for Respondent. Respondent's

Exhibits 1 through 10, and 12 were admitted.

A hearing transcript was filed on June 23, 1999. Post-

hearing, Petitioner submitted correspondence as argument with an

attachment. Respondent submitted a proposed recommended order.

Subsequently, Respondent moved to strike portions of Petitioner's

correspondence and the attachment from consideration.

Specifically, Respondent has moved to strike portions of

Petitioner's written argument with attachment as evidence not

properly introduced at hearing. Petitioner's correspondence in

reference to the attachment and the attachment itself have not

been considered in preparing the recommended order. Nor has

paragraph two in the correspondence been considered in preparing

the recommended order. Those items described are stricken from

consideration. Otherwise, the correspondence from Petitioner and

the proposed recommended order by Respondent have been considered

in preparing this recommended order.

FINDINGS OF FACT

1. Respondent exercises permitting authority for

construction seaward of the CCCL under terms set forth in

Chapter 161, Florida Statutes, and Chapter 62B-33, Florida

Administrative Code. The CCCL is a regulatory line established

in each coastal Florida county which demarks the landward extent

of storm erosion for a major 100-year storm.

2. The CCCL has been established for Gulf County, Florida.

3. Petitioner owns property in Gulf County, Florida, at

2560 Indian Pass Road, Port St. Joe, Florida. The property

includes a beach house and dock. The dock is seaward of the

CCCL. The dock is subject to Respondent's permit requirements

under Chapter 161, Florida Statutes, and Chapter 62B-33, Florida

Administrative Code.

4. Petitioner's property at that address is located on the

eastern end of Indian Peninsula, adjacent to Indian Pass across

from St. Vincent Island.

5. Petitioner's Gulf County address is not his permanent

residence. Petitioner's permanent residence is in Washington

County, Florida.

6. Petitioner seeks an after-the-fact permit for

construction of a dock seaward of the CCCL.

7. Petitioner's dock contains six pilings. Three pilings

are perpendicular to the shoreline. Three pilings are parallel

to the shoreline. A narrow catwalk traverses the pilings. This

forms an "L" shaped dock.

8. The two spans in the dock are approximately 25 feet in

length each. The pilings that support the dock are approximately

16 inches in diameter. The width of the catwalk is approximately

one and one-half feet. The catwalk is about one and one-half

feet above mean high water.

9. The dock design allows for the planks in the catwalk to

be removed in several minutes.

10. The CCCL bisects Petitioner's property in a manner that

places the dock more than 200 feet seaward of the CCCL.

11. The area in the vicinity of the dock is subject to

storm waves and storm tides from the open ocean, the Gulf of

Mexico. The area in question is not sheltered from the

influences of the storm waves and storm tides.

12. The property here is also proximate to an inlet at

Indian Pass. As such, the processes involved with tides,

currents, and wave effects off of the shoals around the inlet

have influence on the property. The processes are more dynamic

than would be found on an open coast shoreline not adjacent to an

inlet.

13. The dock is in the surf zone of the beach-dune system.

That is the area where breaking waves occur. It is the most

dynamic area in the coastal profile.

14. At one time there were seven pilings that had been

installed by the Petitioner at the location. One piling has been

dislodged and removed by events associated with waves and tides,

possibly during a storm. If pilings were dislodged during a

storm, a potential risk of damage to uplands through the creation

of a wind or waterborne missile existed.

15. Storms which took place around the time that the piling

was removed were Hurricanes Georges and Earl. Georges came

ashore in Alabama near Perdido Key along the Alabama-Florida

state line. It was a Category II storm when it made landfall,

considered a severe storm. Earl came ashore near Mexico Beach

close by the location of Petitioner's property. While Earl had

been a strong storm, it decreased in strength, and at the time it

made landfall was a minimal hurricane, a Category I. Earl and

Georges are considered routine hurricanes in comparison to a

hurricane such as Opal, which came ashore in Pensacola, Florida,

100 miles away from Petitioner's property. Opal was a Category

IV storm, stronger in its influence than Earl and Georges.

Hurricanes of greater force than Earl and Georges can be more

destructive to Petitioner's remaining dock than has been the case

with the removal of the seventh piling. In the event of a

Category V hurricane it is very likely that the present dock

pilings would be dislodged.

16. To protect the catwalk against destruction from storm

surge, it would need to be much higher in elevation from the mean

sea level than is contemplated by its design. In the area of

Petitioner's property, the mean high water line is approximately

one and one-half feet above mean sea level. The decking in the

dock would need to be constructed a minimum of 10 feet above mean

sea level to avoid a storm surge from a twenty-year storm. The

requirement for a 10-foot elevation is in relation to ocean or

fishing piers. The dock in question is an ocean or fishing pier.

17. Storm surge associated with hurricane Georges, in the

vicinity of Petitioner's property, was on the order of a ten-year

storm. Hurricane Earl, in the vicinity of Petitioner's property,

was in the nature of a ten to twenty-year storm event.

18. The Petitioner's pilings and the catwalk, if subjected

to a ten or twenty-year storm event, would fail and become wind

driven and waterborne missiles.

19. In the event that the structural members of the dock

failed in a storm event and were generated as wind or waterborne

missiles, they could damage the upland dwellings during the storm

event.

20. The portability of the structural members of the

catwalk does not relieve Petitioner of the obligation to design

the overall structure in a manner to minimize the potential for

generation of wind or waterborne debris. From Respondent's

policy perception portability of the catwalk does not overcome

the concern about the catwalk as part of the basic dock design

and the risk that all features within the dock design are

susceptible to becoming wind or waterborne in a storm event when

considered as an entire structure.

21. Petitioner in his testimony indicated that his normal

residence is about two hours from the dock location by

automobile. Petitioner recognizes that in the event of an

evacuation from the coastal area where his dock is found, in an

anticipation of a storm, Petitioner might not have access to

remove the catwalk.

22. Petitioner's dock is a major structure with potential

to create an adverse impact to the coastal system, in particular

upland structures if removed by the forces of nature.

Petitioner's dock is not a typical ocean mooring, such as a

floating buoy. The dock is not designed for expendability. It

is designed to be permanent. By its permanency it presents the

risk of an adverse impact to the coastal system, to include

upland properties.

23. The perpendicular pilings in the project are more

shallow in their anchoring when compared to the parallel pilings.

Both sets of pilings create concern that they will become wind or

waterborne missiles. The parallel pilings are at the seaward

limits of the structure. They are subject to being scoured and

removed by a major storm event, no less so than the perpendicular

pilings in their shallow placement. In addition to the scouring

action at the base of the pilings, removing the material that

forms the embedment for the pilings, wave action, and

hydrodynamic forces exert an adverse influence on the pilings.

24. Unlike dune walkovers, the dock located in the surf

zone is in the area where waves break and dissipate energy. That

process typically transpires before the waves reach the dunes

themselves where the dune walkovers are found. The dune area is

less dynamic in this sense. In addition to dissipation of energy

in the surf zone, energy from wave action is dissipated across

the beach before reaching the upland location where the dune

walkovers are found. It would take a more severe storm, which

has a lesser probability of occurring, before a dune walkover

would be at risk of deteriorating and becoming part of debris

that poses a threat to upland structures.

25. The perpendicular piling nearest the beach presents an

interference with lateral beach access.

26. Petitioner in presenting his application for an after-

the-fact permit has not refuted Respondent's concerns about the

potential for the pilings and deck to become displaced in a storm

event placing the uplands at risk. Petitioner has not countered

Respondent's proof presented through Robert M. Brantly, Jr., P.E.

Mr. Brantly in his testimony offered the opinion that the

structural members of the dock would be dislodged in a storm

event and present a risk of becoming wind and waterborne missiles

presenting the potential for destruction to upland property in

the area. That opinion is accepted.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties to this action

in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

28. Petitioner's dock is seaward of the CCCL. The CCCL is

established to define that portion of the beach-dune system that

is subject to severe fluctuations based on a 100-year storm

surge, storm waves, or other predictable weather conditions.

Section 161.053(1)(a), Florida Statutes. Unless Petitioner

obtains a permit from Respondent the dock may not remain.

Section 161.053(5) and (7), Florida Statutes.

29. The permit process is designed to be ". . . in the

public interest to preserve and protect them from imprudent

construction" which can ". . . provide inadequate protection to

upland structures, endanger adjacent properties, or interfere

with public beach access." Section 161.053(1)(a), Florida

Statutes.

30. In particular, Section 161.053(5)(a), Florida Statutes,

concerning permitting states:

(5) Except in those areas where local zoning

and building codes have been established

pursuant to subsection (4), a permit to

alter, excavate, or construct on property

seaward of established coastal construction

control lines may be granted by the

department as follows:

(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 and/or riparian owner and upon the

consideration of facts and circumstances,

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 impacts of the location of such

structures or activities, including potential

cumulative effects of any proposed structures

or activities upon such beach-dune system,

which, in the opinion of the department,

clearly justify such a permit.

31. Additional requirements for permitting the dock are set

forth in Rule 62B-33.005, Florida Administrative Code, which

states:

(3) After reviewing all information required

pursuant to this Chapter, the Department

shall:

(a) Deny any application for an activity

which either individually or cumulatively

would result in a significant adverse impact

including potential cumulative effects. . . .

(b) Require citing and design criteria that

minimize adverse impacts, and mitigation of

adverse or other impacts.

(4) The Department 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, Florida

Statutes, and this Chapter are met, including

the following:

* * *

(e) The construction will minimize the

potential for wind and waterborne missiles

during a storm.

32. Petitioner is not entitled to an after-the-fact permit.

Petitioner has not given the necessary reasonable assurances

concerning the design features of the dock as the construction

would minimize the potential for wind and waterborne missiles

during a storm and their adverse effect on upland structures, and

endangerment to adjacent properties. To the contrary,

Respondent, through its expert, established that the upland

structures and adjacent properties to the dock are at risk by the

structural members of the dock becoming wind and waterborne

missiles during a storm event. Finally, Petitioner's dock

presents a limited interference with public beach access.

33. Petitioner is not entitled to an exemption from

permitting under terms set forth in Section 161.053, Florida

Statutes, or Rule 62B-33.004, Florida Administrative Code.

34. Petitioner's dock is not subject to permitting under

Section 161.041, Florida Statutes, in that it does not constitute

the type activity contemplated by that permit process.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered which denies an after-the-fact

permit for Petitioner's dock and calls for the removal of that

dock upon a date established in the final order.

DONE AND ENTERED this 30th day of July, 1999, in

Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative He arings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of July, 1999.

COPIES FURNISHED:

J. Howard Lovett

3131 Lovett Road

Post Office Box 225

Chipley, Florida 32428

Ricardo Muratti, Esquire

Department of Environmental

Protection

Douglas Building

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental

Protection

Douglas Building

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental

Protection

Douglas Building

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.