99-003613 Northern Trust Bank Of Florida, N.A., As Personal Representative For Estate Of Hosea Edwin Blanton vs. Susan Negele And Department Of Environmental Protection Status: Closed DOAH Final Order on Tuesday, August 1, 2000.

Summary: Applicant failed to show an absence of significant impacts to a beach and dune system from placing a residence atop a frontal dune. Department improperly issued a permit prior to receiving a variance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORTHERN TRUST BANK OF )

FLORIDA, N.A., as personal )

representative of the estate )

of HOSEA EDWIN BLANTON, )

)

Petitioner, )

)

vs. ) Case No. 99-3613

)

SUSAN NEGELE and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in

Bradenton, Florida, on March 27, 2000.

APPEARANCES

For Petitioner: Adam Mohammadbhoy

Harllee Porges

Post Office Box 9320

Bradenton, Florida 34205

For Respondent Susan Negele:

S.W. Moore

Brigham Moore

100 Wallace Avenue, Suite 310

Sarasota, Florida 34237

F or Respondent Department of Environmental Protection:

Francine M. Ffolkes

Senior Assistant General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-9314

STATEMENT OF THE ISSUE

The issue is whether Respondent Negele is entitled to a

coastal construction control line permit to construct a single-

family residence seaward of the coastal construction control line

on Anna Maria Island.

PRELIMINARY STATEMENT

Respondent Negel e applied for a permit to build a single-

family residence seaward of the coastal construction control line

on Anna Maria Island. Respondent Department of Environmental

Protection issued a tentative Final Order to grant the permit.

Petitioner filed a petition challenging the issuance of the

permit. Neither respondent raised the affirmative defense of

standing.

At the hearing, Petitioner called three witnesses and

offered into evidence three exhibits. Respondent Negele called

two witnesses and offered into evidence eleven exhibits.

Respondent Department of Environmental Protection called one

witness and offered into evidence four exhibits. The parties

jointly offered into evidence two exhibits. All exhibits were

admitted.

The court reporter filed the Transcript on April 10, 2000.

FINDINGS OF FACT

1. Respondent Susan Negele (Applicant) owns Lot 10, Block

35, of the First Addition to Anna Maria Beach. Petitioner owns

the legal interest in Lots 11 and 12 in the same block. Lot 11

is adjacent to, and landward of, Lot 10, and Lot 12 is adjacent

to, and landward of, Lot 11.

2. As platted in 1912, Lot 10 was separated from the Gulf

by 360 feet, consisting, from landward to seaward, of two 50-foot

lots, an unnamed 10-foot alley, a 100-foot lot, a 50-foot-wide

road known as Gulf Boulevard, and about 100 feet of beach

(although this feature does not contain a stated distance and the

plat map does not indicate the location of the mean or seasonal

high water line). According to the plat, running perpendicular

to Gulf Boulevard (and the shoreline) are Elm Avenue and another

unnamed 10-foot alley. Elm Avenue, which is 50-feet wide, runs

along the northwest property line of Lot 10, and the unnamed

alley runs along the southeast property line of Lot 10.

3. Today, Lot 10 is the first platted feature landward of

the seasonal high water line of the Gulf of Mexico. The record

does not reveal whether the platted features seaward of Lot 10

were submerged at the time of the original subdivision or, if

not, the process or processes that submerged these three lots,

alley, road, and beach.

4. Notwithstanding the clear evidence of the plat map,

there is insufficient record evidence on which to base a finding

that the mean or seasonal high water line has migrated landward a

distance of 360 feet in 88 years. The record is contradictory on

the issue of the stability of the beach seaward of Lot 10.

5. On the one hand, as noted below, two rock groins of

unknown age on either side of Lot 10 suggest an effort to deter

offshore erosion, but the presence of these groins does not

support an inference of a diminishing beach. The beach seaward

of Lot 10 is included in the Comprehensive Beach Management Plan,

which is reserved for beaches that are subject to erosion, but

the record does not develop this point adequately.

6. On the other hand, also as noted below, the anecdotal

evidence suggests that the beach seaward of Lot 10 has been

stable, at least for the past two or three decades. A recent

survey, described below, suggests rapid growth in the beach and

dune over the past 16 months. Even stronger evidence of the

stability of the beach seaward of Lot 10 is its exclusion from

the 30-year erosion projection. The record unfortunately does

not disclose the proximity of this line to Lot 10, which, if in

close proximity, would be important evidence of the condition of

a beach and frontal dune system.

7. In sum, the relative stability of the beach in the

vicinity of Lot 10 is unclear. However, the exclusion of Lot 10

from the 30-year erosion projection and the anecdotal evidence of

stability slightly outweigh the contrary evidence of instability.

8. Applicant's family has owned Lot 10 for 50 years.

Originally, they occupied two buildings on Lot 10 that had once

served as Coast Guard barracks. At one point, Applicant's father

barged the houses up the Manatee River to his father's farm in

Palmetto. The record does not reveal whether another building

was ever constructed on Lot 10.

9. From an engineering standpoint, Lot 10 is a buildable

lot. Applicant seeks the necessary permits to allow residential

construction, so as to raise the market value of Lot 10 prior to

its sale in order to liquidate this asset following the death of

her surviving parent.

10. By application filed with Respondent Department of

Environmental Protection (DEP) on June 16, 1997, Applicant

requested a coastal construction control line (CCCL) permit to

construct a single-family residence on Lot 10.

11. On June 30, 1999, DEP issued a Final Order tentatively

granting the permit, but authorizing the construction of a

structure with a footprint of only 352 square feet. Finding the

allowable footprint insufficient, Applicant challenged the

tentative agency action in DOAH Case No. 99-3913. Finding even a

352-square-foot footprint objectionable, Petitioner also

challenged the tentative agency action in DOAH Case No. 99-3613.

The Administrative Law Judge consolidated the two cases.

12. Agency action in cases of this type is necessarily

tentative because it is subject to administrative challenge,

which, once resolved, allows final agency action to take place.

However, the tentative agency action in this case is tentative in

another important respect.

13. DEP has approached the permitting decision in this case

through a bifurcated process. DEP has issued a Final Order

approving the proposed activity in concept, but has withheld

issuing a Notice to Proceed, which is necessary before

construction may commence. DEP has withheld issuing the Notice

to Proceed until it receives more detailed plans for grading and

revegetating the dune and it determines that these plans

adequately address the protection of the beach and dune system.

14. As noted below, the bifurcated permitting process

defers DEP's examination of detailed grading and revegetation

plans until after its issuance of the Final Order. DEP's expert

testified that DEP provides a point of entry to challenge final

orders, but not notices to proceed. (Tr., p. 174.) The expert

testified that DEP would provide another point of entry

concerning the proposed activity, but only if DEP were to issue

another final order, such as for a "major modification" of the

project (Tr., p. 174).

15. But nothing in the record suggests that DEP will be

issuing another final order following it's receipt of the more

detailed grading and revegetation plans, whose approval by DEP is

not subject to administrative challenge (absent successful

judicial action to force DEP to provide another point of entry).

(The record does not reveal whether DEP would provide Applicant

with another point of entry if DEP were to disapprove the more

detailed plans and decline to issue the Notice to Proceed.)

16. The absence of an agency-recognized point of entry to

challenge the detailed plans means that the analysis necessary to

make the determinations required by law concerning the impacts of

the proposed activities must be limited to the Permit, as it

presently exists, and these determinations may not rely upon

additional protections that may be supplied by more detailed

plans that are not yet in existence.

17. DEP and Applicant settled DOAH Case No. 99-3913 shortly

prior to the final hearing. The settlement stipulation

incorporates a new site plan showing the proposed residence moved

landward so that it is seven feet landward of the vegetation

line, but setback only three feet from the northeast property

line (adjoining Lot 11) and five feet from the southeast property

line (adjoining the alley).

18. DEP approved the settlement on or about March 17, 2000.

By letter dated March 22, 2000, DEP's counsel advised Applicant's

counsel that DEP would announce at the final hearing that "it

intends to issue the [Permit] . . . in accordance with the agreed

location in [the revised site plan] and all other applicable

conditions of the June 29, 1999, final order and June 30, 1999,

letter from [DEP] to Charles Rose."

19. The CCCL permit is dated June 29, 1999, and expires on

June 29, 2002. References to the "Permit" shall include the

subsequent modifications that resulted in the settlement of DOAH

Case No. 99-3913 and the modifications described below.

Petitioner objected to all evidence and any express or implied

amendment of the pleadings at the final hearing to encompass

subsequent Permit modifications, but the Administrative Law Judge

overruled these objections.

20. The Permit authorizes Respondent to conduct activities

in a location that is seaward of the CCCL, but landward of the

30-year erosion projection and the existing line of construction

established by major structures in the immediate area.

21. According to the survey dated October 15, 1998, and

architect's plans dated November 12, 1998, the residence to be

constructed would be an elevated two-story frame structure, over

a concrete pad, with a footprint of 952 square feet. The

proposed structure would be similar in size and character to

other residences in the area. A registered architect has signed

and sealed all relevant construction plans.

22. For the purpose of this recommended order, the seaward

side of Lot 10 is its 110-foot side facing the southwest. This

southwest property line runs from the west corner to the south

corner of Lot 10. The north and east corners mark the 110-foot

side of Lot 10 that abuts Lot 11; this is the northeast property

line. As already noted, the two 50-foot sides of Lot 10 abut Elm

Avenue and the unnamed 10-foot alley.

23. As it exists in the ground, Elm Avenue is a strip of

pavement 17 feet wide located in the middle of the 50-foot wide

platted right-of-way. At present, the paved portion of Elm

Avenue does not extend seaward of the midpoint of Lot 11.

Applicant proposes the construction of a shell drive between the

Elm Avenue right-of-way and the north corner of Lot 10, but this

proposed activity is not the subject of the present case.

24. The road right-of-way immediately adjacent to Lot 10

was occupied by a 60-foot wooden access walkway extending from

the end of the road seaward, between the rock groin and the

northwest line of Lot 10. However, this walkway was removed in

the past couple of years.

25. At present, the rock groin parallel to the northwest

line of Lot 10 occupies the center of the road right-of-way,

extending from Lot 10's midpoint, which is landward of the

seasonal high water line, to a point seaward of mean sea level.

Another rock groin runs from the unnamed alley along the

southeast line of Lot 10, also from a point just landward of the

seasonal high water line, and extends seaward of mean sea level.

Running parallel to the two 50-foot lot lines of Lot 10 and

perpendicular to the shoreline, these two rock groins may offer

some protection from erosion by affecting sand traveling

offshore, but do not otherwise directly offer any protection to

the beach and dune system.

26. As established by Applicant, landward from the Gulf,

relevant natural features are located as follows. Mean sea

level, which is 0.00 feet National Geodetic Vertical Datum

(NGVD), is over 50 feet seaward of the west corner of Lot 10 and

over 100 feet seaward of the south corner of Lot 10. Mean high

water, which is 1.2 feet NGVD, is 35 feet seaward of the west

corner of Lot 10 and about 75 feet seaward the south corner of

Lot 10. Seasonal high water, which is 3.63 feet NGVD, is about

10 feet landward of the west corner of Lot 10 and about 25 feet

seaward of the south corner of Lot 10. About 15-20 square feet

of the relatively low west side of Lot 10 is submerged at

seasonal high water.

27. In two respects, Petitioner's survey, which was dated

March 25, 2000, establishes that, at least for the past 16

months, the beach and dune system is flourishing, not eroding.

28. First, mean high water is now farther from Lot 10 than

it was in late 1998. In the intervening 16 months, the mean high

water line has migrated to a point 77 feet seaward of the west

corner of Lot 10--a distance of 37 feet in less than one and one-

half years. During the same period, the mean high water line has

migrated from 75 feet to 102 feet--a distance of 27 feet--seaward

of the south corner of Lot 10.

29. Second, the newer survey reveals that the seven-foot

contour, which is shown on Applicant's survey as a small area at

the midpoint of the southeast lot line, now extends across the

southeastern two-thirds of the central portion of the lot. It is

difficult to estimate from the surveys, but the area of at least

seven-foot elevation appears to be six or seven times larger than

it was 16 months ago, although a very small area of eight-foot

elevation shown on Applicant's survey appears to have

disappeared. Both surveys show that the six-foot contour line

roughly bisects Lot 10 diagonally from the north to the south

corners.

30. Evidence of beach stability supplied from the March

2000 survey is reinforced by anecdotal testimony that the beach

at this location has been stable for at least 20 years. In

general, the beach at this location is not as dynamic as beaches

found elsewhere in Florida.

31. The CCCL is about 259 feet landward of the north corner

of Lot 10 and about 222 feet landward of the east corner of Lot

10. The CCCL is landward of Petitioner's Lots 11 and 12, as well

as the next two 50-foot wide lots and nearly the entirety of Gulf

Drive (Snapper Street on the plat) adjoining this block.

32. According to Applicant's survey, the seaward toe of the

frontal dune runs roughly along the seaward six-foot contour,

perhaps 10 feet seaward of this contour at the west corner and a

perhaps five feet landward of this contour at the south corner.

The vegetation line runs 3-5 feet landward of the surveyed

seaward toe of the dune. According to Applicant's survey, the

frontal dune continues over the landward half of Lot 10,

excluding only a 10-square-foot area at the east corner and

extending well across the southeastern line of Lot 11, so as to

capture about one-fifth of that lot.

33. However, the surveys do not support an independent

determination of the toes of the frontal dune or, thus, its

width. DEP's expert testified that the landward toe of the dune

is probably landward of the surveyed location. Also, the scale

of the surveys did not facilitate analysis of subtle changes in

slope, which would be indicative of the toes of a low frontal

dune, such as is involved in this case. DEP's expert opined that

a maximum elevation of seven or eight feet NGVD meant, at this

general location, that the toes would probably be at the five-

foot contours. If so, the seaward toe would be about 10-15 feet

seaward of its surveyed location, and the landward toe would be

at an undetermined location landward of Lot 10.

34. Several dynamic processes underlie the beach and

frontal dune system. Perhaps most obviously, plants rooted in a

dune capture sand and, thus, add to the size of a dune. The

absence of such plants facilitates a reduction in dune size.

35. The stability of a dune is also affected by the slopes

of its seaward and landward sides and the size of the grains of

sand constituting the dune. When restoring a dune, adherence to

historic slopes and elevations enhances the possibility of a

successful dune restoration. Deviation from these slopes and

elevations raises the risk of failure. The same is true

regarding the size and characteristics of the grains of sand used

to restore a dune.

36. Another factor important in dune stability, as well as

upland protection, is the continuity of the dune. A shorter

dune, in terms of its length running parallel to the shoreline,

is less stable and obviously offers less landward protection than

a longer dune.

37. As originally proposed, Respondent's home would occupy

the east corner of Lot 10. The southwest side of the residence

(facing the Gulf) would have been about one foot seaward of the

vegetation line and only one to two feet landward of the surveyed

seaward toe of the frontal dune. The landward side of the

residence would have been 10 feet seaward of the northeast side

of Lot 10. The proposed home would have been setback 10 feet

from the northeast and southeast property lines.

38. Shortly prior to the commencement of the hearing,

Applicant modified the proposed plans, and DEP modified the

Permit. These changes would relocate the proposed residence so

that it was seven feet landward of the vegetation line, but

setback only three feet from the northeast line and five feet

from the southeast line. Despite its relocation landward from

its original proposed location, the entire residence would occupy

the frontal dune. More specifically, the residence would sit on

the seaward side of the frontal dune.

39. The Permit imposes a number of special conditions upon

the construction of Respondent's residence. Consistent with

DEP's bifurcation of the permitting process in this case, these

special conditions prohibit the commencement of construction

until Respondent submits plans and specifications "includ[ing] or

reflect[ing] the following:"

1.1 A revised site plan including the

distances relative to coastal construction

control line to all the authorized structures

with dimensions. The revised site plan shall

depict the dwelling relocated to within 3

feet of the upland lot line and not exceeding

a distance of 244 feet seaward.

* * *

1.5 A revised grading plan depicting the

restored dune extending across the entire

parcel with a minimum crest elevation of .0

feet (NGVD).

* * *

5. The fill material shall be obtained from

a source landward of the control line and

shall consist of sand which is similar to

that already on the site in both grain size

and coloration. This fill material shall be

free of construction debris, rocks, or other

foreign matter. A sample of the sand shall

be provided to the staff representative

during the preconstruction conference.

6. All permanent exterior lighting shall be

installed and maintained as depicted in

approved lighting schematic. No additional

exterior lighting is authorized.

CAVEAT:

Due to potential adverse impacts to the beach

and dune system that may result from

additional development on the property, the

shore-parallel and seaward extent of the

permitted structures shall not be increased,

nor will any additional major structures be

permitted which would exceed the limits

established by the permitted construction

seaward of the coastal construction control

line.

40. The present proposed location of the residence is not

landward of a line running 244 feet seaward of the CCCL. Roughly

one-third of the proposed residence would be seaward of this

line, which is set forth in the Permit.

41. Addressing the obvious conflict between the restriction

contained in Permit Paragraph 1.1 prohibiting any structure

seaward of a point 244 feet seaward of the CCCL and its approval

of the new location for the residence, DEP announced at the

hearing a new Permit Paragraph 1.1, which reads:

The revised site plan shall depict the

dwelling relocated within three feet of the

upland lot line and not exceeding a distance

of 250 feet seaward of the CCCL on the

southwest corner and 255 feet seaward of the

CCCL on the northwest corner.

(Tr., pp. 119-20.)

42. The revised site plan clarifies that the reference to

"three feet" means the three-foot setback on the northeast lot

line. The references to the southwest and northwest corners

are, respectively, to the southernmost corner, which, when used

with respect to Lot 10 in this recommended order, is described as

the south corner, and the westernmost corner, which, when used

with respect to Lot 10 in this recommended order, is described as

the west corner. (For ease of reference at the hearing, counsel,

the witnesses, and Administrative Law Judge reoriented Lot 10 by

referring to the southwest lot line as the west lot line and

treating the Gulf, which is southwest of Lot 10, as though it

were due west of Lot 10.)

43. At present, Applicant has submitted no grading plans,

which would address the seaward toe of the frontal dune after

construction. The landward toe is not on Applicant's property,

so Applicant will not be able to change the slope of the landward

side of the dune by adding sand to the portion of this dune not

contained within Lot 10.

44. As identified to this point, the Permit's requirements

for dune restoration are sketchy, reliant upon more detailed

grading plans that are not yet in existence. Permit Paragraph 5

adequately specifies the grain size. However, the Permit fails

to specify the slopes, leaving this crucial element of the dune

to the more detailed grading plans.

45. Under the Permit, Applicant would be required to supply

a specified volume of sand to the site. This volume was

calculated to be sufficient, based on Applicant's survey, to

raise the portion of the dune northwest of the seven-foot contour

to an elevation of seven feet NGVD. However, if Petitioner's

survey is correct, much less sand will be needed to raise the

elevation to seven feet NGVD, so the "excess" sand will widen the

dune. This recommended order has credited both surveys, so

Applicant's survey provides the relevant details except for the

more recent information supplied by Petitioner's survey

concerning the locations of the mean high water line and the

seven-foot contour.

46. The widening of the dune authorized by the Final Order

necessarily changes the dune's profile by extending the seaward

toe closer to the shoreline and probably changes the slope of the

seaward toe of the dune. Additionally, raising the elevation of

the dune in the northeastern portion of Lot 10 will dramatically

change its landward profile, given the fact that Applicant cannot

add sand to the large portion of the dune landward of Lot 10.

47. The effects of these alterations of the dune profile

are entirely unknown to Applicant and DEP. Failing to perform

the preliminary tasks of locating the existing dimensions of the

dune--in terms of its width (perpendicular to the shoreline) and

its length (parallel to the shoreline)-- Applicant and DEP lacked

the baseline data upon which they could then analyze the

construction and post-construction effects of placing Applicant's

residence atop this dune. The present stability of the beach and

dune system at Lot 10 does not dispense with the necessity of

such analysis in making the determinations required by the

relevant law.

48. Additionally, the Permit fails to address the

revegetation of the dune, again leaving this issue to more

detailed plans not yet in existence. Specifically, Applicant has

submitted no plans establishing a replanting scheme with

specified species at specified distances, criteria by which to

measure the success of the revegetation process (e.g., X percent

coverage after one year), and a monitoring and enforcement

program.

49. Lastly, although the City of Anna Maria issued a letter

approving of the proposed plans when Applicant proposed ten-foot

setbacks, the City of Anna Maria has not had a chance to comment

upon the proposal of three- and five-foot setbacks. Land use

regulations of the City of Anna Maria require greater setbacks

than these.

50. As distinguished from its treatment of the dune profile

and vegetation, the Permit supplies ample assurances that the

proposed activities would be conducted in such a way as not to

disturb nesting sea turtles, which, according to the record,

infrequently occupy this specific location. Permit provisions,

such as those scheduling construction and governing construction

and post-construction lighting, adequately address the relatively

simple task of protecting this lightly used nesting habitat.

CONCLUSIONS OF LAW

51. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1), Florida

Statutes. (All references to Sections are to Florida Statutes.

All references to Rules are to the Florida Administrative Code.)

52. As the party seeking a permit, Applicant bears the

burden of proving her entitlement to the Permit. Department of

Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981).

53. Section 161.053(1)(a) provides in part:

The Legislature finds and declares that the

beaches in this state and the coastal barrier

dunes adjacent to such beaches, by their

nature, are subject to frequent and severe

fluctuations and represent one of the most

valuable natural resources of Florida and

that it is in the public interest to preserve

and protect them from imprudent construction

which can jeopardize the stability of the

beach-dune system, accelerate erosion,

provide inadequate protection to upland

structures, endanger adjacent properties, or

interfere with public beach access. In

furtherance of these findings, it is the

intent of the Legislature to provide that the

department establish coastal construction

control lines . . . to define that portion of

the beach-dune system which is subject to

severe fluctuations based on a 100-year storm

surge . . .. Special 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.

54. Section 161.053(5)(a) provides that DEP may issue a

CCCL permit "upon consideration of the 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 structure

or activities upon such beach-dune system,

which, in the opinion of the department,

clearly justify such a permit.

55. Section 161.053(5)(b) provides that DEP may issue a

CCCL permit if "a number of structures" immediately contiguous or

adjacent to the subject property "have established a reasonably

continuous and uniform construction line closer to the line of

mean high water than the [CCCL]." However, this section states

that DEP "shall not contravene setback requirements or zoning or

building codes established by a county or municipality which are

equal to, or more strict than, those requirements provided

herein." DEP may still consider the facts and circumstances

listed in Section 161.053(5)(a) or the natural resources

protected by the CCCL legislation.

56. Section 161.053(6)(b) prohibits the location of nearly

all types of structures seaward of the 30-year erosion

projection. However, Section 161.053(6)(c) allows an exception

for a single-family dwelling on land that was platted prior to

October 1, 1985, and where the application of the prohibition

would preclude construction of a single-family residence.

However, this exception still requires that the structure be

located landward of the frontal dune.

57. Section 161.053(21) authorizes DEP to promulgate rules

related to activities seaward of the CCCL.

58. Rule 62B-33.005(1) states:

The beach and dune system is an integral part

of the coastal system and represents one of

the most valuable natural resources in

Florida, providing protection to adjacent

upland properties, recreational area and

habitat for wildlife. A coastal construction

control line is intended to define that

portion of the beach and dune system which is

subject to severe fluctuations caused by a

one-hundred-year storm surge, storm waves, or

other forces such as wind, wave or water

level changes. These fluctuations are a

necessary part of the natural functioning of

the coastal system and are essential to post-

storm recovery, long-term stability and the

preservation of the beach and dune system.

However, imprudent human activities can

adversely interfere with these natural

processes and alter the integrity and

functioning of the beach and dune system.

The control line . . . call[s] attention to

the special hazards and impacts associated

with the use of such property, but do[es] not

preclude all development or alteration of

coastal property seaward of such lines.

59. Rule 62B-33.005(2) provides that an applicant shall

provide DEP with "sufficient information pertaining to the

proposed project to show that any impacts associated with the

construction have been minimized and that the construction will

not result in a significant adverse impact."

60. Rule 62B-33.002(29)(b) provides that:

Significant Adverse Impacts are adverse

impacts of such magnitude that they may:

1. Alter the coastal system by:

a. Measurably affecting the existing

shoreline change rate;

b. Significantly interfering with its

ability to recover from a coastal storm;

c. Disturbing topography or vegetation

such that the system becomes unstable, or

suffers catastrophic failure; or

2. Cause a take, as defined in section

370.12(1), Florida Statutes, unless the take

is incidental pursuant to section

370.12(1)(f), Florida Statutes.

61. Rule 62B-33.005(3)(a) states that DEP shall deny any

application for an

activity which either individually or

cumulatively would result in a significant

adverse impact including potential cumulative

effects. In assessing the cumulative effects

of a proposed activity, the Department shall

consider the short-term and long-term impacts

and the direct and indirect impacts the

activity would cause in combination with

existing structures in the area and any other

activities proposed with the same fixed

coastal cell.

62. Rule 62B-33.005(3)(b) directs DEP to "[r]equire siting

and design criteria that minimize adverse impacts, and mitigation

of adverse or other impacts."

63. Rule 62B-33.005(4) provides that DEP shall issue a CCCL

if the applicant has shown that issuance is "clearly justified"

by demonstrating compliance with all requirements of Chapter 161,

Part I, Florida Statutes, and the rules under Chapter 62B-33.

The applicant must show, among other things:

(a) The construction will not result in

removal or destruction of native vegetation

which will either destabilize a frontal,

primary or significant dune or cause a

significant adverse impact to the beach and

dune system due to increased erosion by wind

or water;

(b) The construction will not result in

removal or disturbance of in situ sandy soils

of the beach and dune system to such a degree

that a significant adverse impact to the

beach and dune system would result from

either reducing the existing ability of the

system to resist erosion during a storm or

lowering existing levels of storm protection

to upland properties and structures;

* * *

64. Rule 62B-33.005(6) provides:

Major structures shall be located a

sufficient distance landward of the beach and

frontal dune to permit natural shoreline

fluctuations, to preserve and protect beach

and dune system stability and to allow

natural recovery to occur following storm-

induced erosion. . . .

65. Rule 62B-33.005(7) states:

If in the immediate area a number of existing

major structures have established a

reasonably continuous and uniform

construction line and if the existing

structures have not been unduly affected by

erosion, except where not allowed by the

requirements of section 161.053(6), Florida

Statutes, and this Chapter, the Department

shall issue a permit for the construction of

a similar structure up to that line, unless

such construction would be inconsistent with

sections (3), (4), (6) or (8) of this rule.

66. Rule 62B-33.008(1) requires persons seeking to build

seaward of the CCCL to obtain a CCCL permit from DEP. Rule

62B -33.008(1)(d) requires that each application contain:

"Written information, provided by the appropriate local

governmental agency having jurisdiction over the activity, that

the proposed activity, as submitted to the Bureau, does not

contravene local setback requirements, zoning or building codes,

and is consistent with the state approved Local Comprehensive

Plan."

67. Rule 62B-33.008(1)(f) requires copies of a topographic

survey from field survey work performed not more than six months

prior to the date of the application.

68. Rule 62B-33.008(1)(j) requires copies of "detailed

final construction plans and specifications for all proposed

structures . . .."

69. Rule 62B-33.008(4) authorizes an applicant to identify

which of the requirements in Rule 62B-33.008(1)(b), (f), (g),

(h), (i), (j), (k), and (l) may be unnecessary to "ensure

protection to the beach and dune system . . .." DEP shall waive

any such requirements that are unnecessary in the subject

application.

70. The Legislature established CCCLs "to define that

portion of the beach-dune system which is subject to severe

fluctuations based on a 100-year storm surge." Finding that the

beach and dune system is "one of the most valuable natural

resources in Florida," the Legislature created the CCCL

permitting process to "ensure the protection of the beach-dune

system, proposed or existing structures, and adjacent properties

and the preservation of public beach access."

71. Elaborating, DEP recognizes that that the "severe

fluctuations" characteristic of the land seaward of the CCCL "are

a necessary part of the natural functioning of the coastal system

and are essential to post-storm recovery, long-term stability and

the preservation of the beach and dune system."

72. The law does not prohibit construction seaward of the

CCCL. By statute, DEP may issue a CCCL permit upon consideration

of the facts and circumstances, including consideration of

"adequate" engineering data concerning shoreline stability and

storm tides and the "potential impacts of the location of . . .

structures or activities . . .."

73. By statute, DEP has the discretion to issue a CCCL if

other contiguous structures have established a reasonably

continuous construction line closer to mean high water than would

otherwise be permitted by the CCCL. However, DEP may not issue a

CCCL permit, if the proposed construction would violate local

setback laws, and DEP must still consider the relevant facts and

circumstances. Section 161.053(5)(b) effectively identifies a

factor in favor of a CCCL permit, not a safe harbor guaranteeing

a CCCL permit.

74. The rules spell out the requirements imposed upon an

applicant for a CCCL. The applicant must show that the

construction will not result in a "significant adverse impact"

and that any impacts have been "minimized" and "mitigat[ed]."

DEP shall consider cumulative, as well as short- and long-term,

impacts to relevant natural resources.

75. Restating the statutory language found at Section

161.053(5)(a)3, the rules require the applicant to show that the

issuance of the CCCL permit is "clearly justified." This

language does not change the typical standard of proof--i.e., a

preponderance of the evidence--but it does require that an

applicant show, by a preponderance of the evidence, that issuance

of the CCCL permit is clearly justified.

76. Among the things that an applicant must show is that

the issuance of the CCCL permit will not result in the removal of

native vegetation that will destabilize a frontal dune or cause a

significant adverse impact to the beach and dune system. The

activity proposed by Applicant will destroy considerable native

vegetation presently occupying the frontal dune, but an adequate

revegetation plan--had there been one--could have satisfied this

requirement.

77. Another thing that an applicant must show is that the

construction will not result in the removal or disturbance of in

situ sandy soils of the beach and dune system to such a degree

that a significant adverse impact to the system would result, in

terms of the reduction of the system's ability to reduce erosion

or the reduction of the system's ability to offer protection to

upland properties. The activity proposed by Applicant will

considerably alter the natural profile of the frontal dune, but

an adequate grading plan--had there been one--could have

satisfied this requirement. Less clear is the ability of

Applicant to show that the permanent addition of a residence atop

the dune would not result in these adverse impacts; in any event,

the record does not permit such a finding.

78. The rules also require a showing that major structures

will be sufficiently "landward of the beach and frontal dune" to

"permit natural shoreline fluctuations, to preserve and protect

beach and dune system stability and to allow natural recovery to

occur following storm-induced erosion." The proposed location of

the residence is atop the seaward side of the frontal dune. Even

ignoring this serious fact, the record does not permit a finding

that the location of the residence will permit natural shoreline

fluctuations, preserve and protect the natural beach and dune

system, and allow natural recovery following storm-induced

erosion.

79. The rules also address the interplay of the reasonably

continuous construction line seaward of the CCCL and the other

provisions restricting activities seaward of the CCCL. Rule

62B -33.005(7) warns that the exception for a reasonably

continuous construction line does not mean that construction may

be inconsistent with the above-described rules.

80. As appears to be the case with the statutes, under the

rules, the exception for a reasonably continuous construction

line seaward of the CCCL appears to be a factor, perhaps even an

important factor, to be weighed with respect to the other

enumerated factors. For the most part, the rules identify

factors, among other facts and circumstances, that DEP should

weigh in determining whether to issue a CCCL permit.

81. The only rule that deviates from this pattern is Rule

62B-33.005(6), which does not identify a permitting factor, but,

by implication, flatly prohibits permitting construction that is

not landward of the frontal dune. The better reading of this

rule may be that it is a flat prohibition, but this recommended

order shall treat it as identifying merely another permitting

factor, given that the resolution set forth below is not

dependent upon the reading of this rule as a flat prohibition.

82. For the reasons already stated, Applicant has failed to

prove by a preponderance of the evidence that the proposed

activity would satisfy the above-stated requirements designed to

protect the beach and dune system. The dynamics of the beach and

dune system are adversely affected by the construction of a

residence atop the frontal dune, especially the seaward side of

the frontal dune.

83. DEP implicitly concedes the importance of more-detailed

grading and revegetation plans in assuring that the beach and

dune system suffers no significant adverse impacts, but the

bifurcated permitting process does not relieve Applicant of the

necessity of providing the necessary assurances to obtain the a

CCCL permit. This showing would be required even if DEP provided

substantially affected persons with a point of entry to challenge

the notice to proceed; the absence of such an opportunity only

underscores the importance of requiring these assurances prior to

any permitting of the proposed activity.

84. Additionally, DEP has improperly issued the final order

prior to its receipt of a variance from the local government for

the three- and five-foot setbacks.

RECOMMENDATION

It is

RECOMMENDED that the Department of Environmental Protection

enter a final order denying the application for a coastal

construction control line permit to construct a residence at the

location indicated at the hearing.

DONE AND ENTERED this 13th day of June, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

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 13th day of June, 2000.

COPIES FURNISHED:

Kathy Carter, Agency Clerk

Office of the General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Teri Donaldson, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Adam Mohammadbhoy

Harllee Porges

Post Office Box 9320

Bradenton, Florida 34205

S.W. Moore

Brigham Moore

100 Wallace Avenue, Suite 310

Sarasota, Florida 34237

Francine M. Ffolkes

Senior Assistant General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-9314

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 must be filed with the agency that will

issue the final order in this case.