Title: Administrative Orders - Dept. of Natural Resources. Revetment Construction -Permit-Approval-Need to Preserve Seawall Shown-Failure by Intervening Adjacent Riparian Owners To Show Consequent Damage-Access Easement to Public Beach Required-Coastal Construction Licensing Proceeding
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Title: Administrative Orders - Dept. of Natural Resources. Revetment Construction -Permit-Approval-Need to Preserve Seawall Shown-Failure by Intervening Adjacent Riparian Owners To Show Consequent Damage-Access Easement to Public Beach Required-Coastal Construction Licensing Proceeding
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Abstract: Jake Varn Collection - Administrative Orders - Dept. of Natural Resources. Revetment Construction -Permit-Approval-Need to Preserve Seawall Shown-Failure by Intervening Adjacent Riparian Owners To Show Consequent Damage-Access Easement to Public Beach Required-Coastal Construction Licensing Proceedings-Standing (JDV Box 86)
General Note: Box 22, Folder 5 ( Administrative Orders, Dist. Courts of Appeal, Judicial Opinions - 1982 ), Item 2
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Full Text

CITE AS 4 FALR .. .....

ADMINISTRATIVE ORDERS


DEPT. OF NATURAL RESOURCES. Revetment
Construction-Permit-Approval-Need To Preserve
Seawall Shown-Failure By Intervening Adjacent
Riparian Owners To Show Consequent Damage-
Access Easement To Public Beach Required--Coastal
Construction Licensing Proceedings-Standing.




SEASCAPE CONDOMINIUM I ASSOCIATION, INC., SEASCAPE
CONDOMINIUM II ASSOCIATION, INC., CASA BONITA I CONDO-
MINIUM ASSOCIATION, INC., and CASA BONITA II CONDOMINIUM
ASSOCIATION, INC., Petitioners, vs. BONITA BEACH CLUB
ASSOCIATION, INC., and STATE OF FLORIDA, DEPARTMENT OF
NATURAL RESOURCES, Respondents, and LEE COUNTY,
FLORIDA, Intervenor. Case No. 81-550.
FINAL ORDER
I. INTRODUCTION: On October 16, 1981, the duly
appointed hearing officer in the above styled matter
submitted to the Department and all parties a Recommended
Order, consisting of Findings of Fact, Conclusions of Law,
and a Recommendation. A copy of said Order is attached
hereto as Exhibit "A".
Pursuant to Sec. 120.57(1XbX8), F.S., parties are allowed
at least (10) days to submit written exceptions to the
Recommended Order. Neither the Department or the parties
filed exceptions to the hearing officer's Recommended Order.
The Recommended Order came before the Governor and
Cabinet, as head of the Department, for final agency action
in this matter, after consideration of the entire record,
including transcripts of hearings, exhibits in evidence, all
pleadings submitted, and the oral arguments of counsel.
II. DISCUSSION OF THE DOAH's HEARING OFFICER'S
FINDINGS OF FACT: Sec. 120.57(1Xb)(9), F.S., prohibits
an agency from rejecting or modifying a hearing officer's
Findings of Fact unless it can be determined after a review
of the complete record, that the findings were not based
upon competent substantial evidence or that the proceedings
on which the findings were based did not comply with
essential requirements of law.
In determining that the hearing officer's Findings of Fact
are supported by competent substantial evidence, and
cannot be lawfully disturbed, the Department recognizes that
the hearing officer's findings should be afforded considerable
weight. The hearing officer is the trier of fact who is best
able to evaluate the credibility of witnesses and resolve con-
flicting testimony. Indeed, courts have cautioned agencies
against making a new judgment upon the evidence. See
Koltay v. Department of Business Regulation, 374 So.2d
1386 (Fla. 2d DCA 1979); Borovina v. Florida Construction
Industry Licensing Board, 369 So.2d 1038 (Fla. 4th DCA
1979).
The hearing officer's Findings of Fact, in this instance,
reflect evidence received at the hearing concerning the
issues of whether respondent Bonita Beach Club Association,
Inc., is entitled to a permit, under Sec. 161.041, F.S.
(1979), authorizing the construction (for shore protection
purposes) of a 600 linear foot rip-rap revetment in front of
the Bonita Beach Club seawall and below the line of mean


high water on Little Hickory Island, Lee County, Florida.
In no instance has the hearing officer in this case resolved
disputed issues by entering a factual finding that is unsup-
ported by competent substantial evidence. Furthermore,
the entire record of this case reveals that the proceedings
have complied with the essential requirements of law, include.
ing all the applicable provisions of Ch. 120, F.S.
III. CONCLUSIONS AND ORDER: Having considered
the Recommended Order, including Findings of Fact and
Conclusions of Law, the entire record of this matter, and the
oral argument of counsel, it is therefore:
ORDERED, by the State of Florida Department of Natural
Resources, that the Hearing Officer's Recommended Order,
including its Findings of Fact, Conclusions of Law and
Recommendation are hereby adopted, in toto, as the final
action of this agency and wholly incorporated herein.
DONE AND ENTERED, this 16th day of December, 1981
in Tallahassee, Florida.
/s/ Elton J. Gissendanner, Executive Director, Dept. of
Natural Resources.
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held
before R.L. Caleen, Jr., Hearing Officer with the DOAH, on
July 23-24, 1981, in Fort Myers, Florida.
APPEARANCES: For Petitioners: John C. Coleman,
Esquire, and Robert J. Coleman, Esquire, Post Office Box
2089, Fort Myers, Florida 33902, For Casa Bonita I Condo-
minium Association, Inc., and Casa Bonita II Condominium
Association, Inc.; For Respondents: Terry Lewis, Esquire,
Post Office Box 1876, Tallahassee, Florida 32302, For
Bonita Beach Club Association, Inc., and John Williams,
Esquire, 3900 Commonwealth Boulevard, Tallahassee, Florida
32303, For State of Florida, Department of Natural Resources.
For Intervenor: Jerrold Stern, Esquire, Post Office Box 398,
Fort Myers, Florida 33902, For Lee County.
ISSUE PRESENTED: Whether respondent Bonita Beach
Club Association, Inc., is entitled to a permit, under
Section 161.041, F.S. (1979), authorizing the construction
(for shore protection purposes) of a 600 linear foot rip-rap
revetment in front of the Bonita Beach Club seawall and
below the line of mean high water on Little Hickory Island,
Lee County, Florida.
BACKGROUND: Respondent Bonita Beach Club Associa-
tion, Inc. ("Applicant") represents the owners of a beach-
front condominium located on Little Hickory Island, a barrier
island south of Fort Myers at Bonita Beach, Florida. In
October, 1980, Applicant applied to respondent Department
of Natural Resources ("DNR") for a permit to place a rock
revetment below the mean high waterline and along the
seaward face of an existing seawall. The stated purpose of
the proposed revetment was "to help strengthen the seawall
and stop the erosion at the base of the seawall.. ."(R-1.)
On November 21, 1980, DNR acknowledged the
application, and requested additional information. The
Applicant responded, and on January 26, 1981, DNR notified
Applicant that its application was complete and final action
would be taken by April 21, 1981. (R-1,)
DNR's Bureau of Beaches and Shores recommended that
the Governor and Cabinet, as head of DNR, approve the -
application subject to Applicant's acceptance of certain
design, construction, public access, and reporting conditions.
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(R-12.) One of those conditions incorporated an agreement
(R-l 1) by Applicant that it would provide public access
to the beaches north of its property by means of an easement;
the easement would be 7 feet wide and traverse the
Applicant's landfrom north to south in the vicinity of the
existing seawall.
On March 16, 1981, a petition for administrative hearing
was filed with DNR by petitioners, Seascape Condominium
Association, Inc., Casa Bonita I Condominium Association,
Inc., Casa Bonita II Condominium Association, Inc., and Casa
Grande Condominium Association, Inc. The petitioners
opposed issuance of the requested permit and alleged that
they owned property south of and adjacent to the Applicant's
property; that the proposed revetment, if approved, would
substantially affect their interests by accelerating the loss
of sand from their property, eroding the abutting beaches,
and causing disfiguration and despoilage of the shoreline;
that the proposed revetment would significantly affect
beaches and sand dune systems seaward of petitioner's property
and that the petitioners' recreational use of sovereignty lands,
held in trust by the State, would be prejudiced. On March 18,
1981, the petitioners' request for hearing was granted by
DNR, and this case was referred to the DOAH for the con-
ducting of a Sec. 120.57 hearing.
Hearing was thereafter set for June 11-12, 1981 dates
agreed upon by the parties. At the request of DNR, hearing wa
subsequently rescheduled for June 18-19, 1981. Thereafter,
petitioner Casa Bonita I Condominium Association, Inc., moved
for a continuance; the motion was granted and hearing was
reset for July 23-24, 1981.
On June 5, 1981, Lee County moved to intervene as a party
on grounds that it owned nearby property (within 1,000
feet of the project site) which "could be adversely affected
by the proposed project." By order dated June 17, 1981,
the motion was granted.
On June 1, 1981, petitioner Casa Grande Association, Inc.,
agreed to withdraw from this proceeding. On June 5, 1981,
petitioner Seascape Condominium III Association, Inc., filed
a notice of voluntary dismissal based on:a settlement agree-
ment reached with Applicant. The style of this case has now
been modified accordingly.
At the final hearing, the parties assumed the following
positions:
Applicant and DNR: The permit should be issued. The
revetment project complies with Sec. 161.041, F.S. (1979),
and Ch. 16B-24, F.A.C.;it has been approved by the
Trustees of the Internal Improvement Trust Fund and the
Florida DER. Investigation of alternative means of shore
protection is not relevant to permit approval.
Petitioners: Seascape Condominium I and II Associa- .i
tions, Inc., and Lee County: The proposed revetment is only
acceptable if adequate, converient, and permanent public
access from beaches south of the revetment to beaches north
is provided by Applicant.
Casi Bonita I and II Condominium Associations, Inc.,
and Lee County: The application should be denied because
the proposed revetment does not comply with the require-
ments of Sec. 161.041, F.S. The project will cause
beach erosion and endangerment to beaches, dunes, and
structures adjacent to the site and alternative means of
protecting the shore are available.


The Applicant and DNR called as their witnesses: Clifford
L. Truitt, chief engineer of DNR's Bureau of Beaches and
Shores; Richard Cantrell, dredge and fill supervisor for the
Florida DER; and David T. Tackney, a registered professional
engineer. Respondents' Exhibit Nos. 1 through 14 were
received into evidence.
Lee County and petitioners Casa Bonita I and II Condominium
Associations, Inc., called Dinesh Sharma, an environmental
consultant and offered Intervenor's Exhibit Nos. 1 and 2
and Petitioners' Exhibit Nos. 1 through 4 into evidence, each
of which was received.
Petitioners Seascape Condominium I and II Associations,
Inc., were not represented at hearing, although several members
of those associations testified as interested members of the
public and made their concerns known. Upon inquiry, it was
determined that the individual who sought to represent these
corporations was not a "qualified" lay representative
within the meaning of Sec. 120.62(2), F.S. (1979).
Since Applicant proposes a private use of sovereignty lands-
lands held by the State in trust for all the people and
the proposed revetment may affect the public's use and
access to its beaches, the general public was a owed to present
testimony or written evidence at the hearing. Numerous
persons expressed concerns about the proposed revetment and
its short- and long-term effects.
After hearing, two letters, with attachments, were received
which related to the subject matter of this case and may have
constituted ex parte communications proscribed by Sec.
120.66(2), F.S. (1979). The parties were thus notified that
such communications had been received and given an opportunity
to respond.
Applicant and DNR filed responses asking that the two
letters, with attachments, be denied consideration because,
inter alia, they were unable to cross-examine the authors
concerning the contents.
Parties to Sec. 120.57 proceedings are guaranteed the right
to cross-examine witnesses when testimony is taken or docu-
ments are made a part of the record. Sees. 120.58(1)(f),
120.57(1)(b)4, F.S. (1979). If the letters complained of were
accepted as evidence, the Applicant and DNR would be deprived
of their right to cross-examine. Accordingly, their request
is granted; the two letters, with attachments, described in
Notices dated September 16 and 25, 1981, are rejected as
evidence in this proceeding. However, they are made a part of
the record pursuant to Sec. 120.66.
At the close of hearing, the parties were allowed to file
proposed findings of fact and conclusions of law within 14
days from the date the last party received a copy of the
transcript of hearing. It was further agreed that the 30-day
period for submittal of the recommended order would begin when
the parties' proposed findings were filed. The parties' proposed
findings were subsequently filed by September 8, 1981.
Based on the evidence presented at hearing, the following
facts are determined:
FINDINGS OF FACT: I. The Problem: A Seawall In
Danger of Collapse: 1. Applicant is an incorporated condo-
minium association which owns the Gulf front property of
Bonita Beach Club, a residential condominium located on the '
northern portion of a barrier island known as Little Hickory
Island. The island is south of Fort Myers and part of Lee
County. (Testimony of Truitt, Tackney; R-1.)


631-A


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632-A ADMINISTRA
2. Applicant's Gulf front property is protected by a 600-
foot seawall; that seawall, exposed to wave and storm attack,
is now in the beginning stages of failure. Applicant seeks a
permit to place a revetment along the entire seaward face of
the seawall "to help strengthen the seawall and stop the erosion
at [its] ... base..." (R-1.) (Testimony of Truitt, Tackney,
Sharma; R-l.)
3. The seawall shows evidence of profile lowering; sand
has been scoured from its face, exposing 6 to 7 feet of wall
above the sand line. Its face shows abrasions from buffeting
by sand and sediment; its joints have begun to separate, allowing
sand from behind the wall to leak through the cracks. Under
high tide conditions, the seaward portions of the seawall are
under water; under other tidal conditions there is no more
than 6 to 7 feet of wetsand area between the base of the wall
and the waterline. (Testimony of Truitt.)
4. The present condition of the seawall is mainly due to two
processes: (1) the long-term shoreline migration of Little
Hickory Island, and (2) profile steepening, scouring, and
accelerated sand loss in the immediate vicinity of Applicant's
seawall. There is a south-to-north longshore or littoral sand
transport in the area off Little Hickory Island, a northward
flowing "river of sand." This phenomenon has caused sand
loss to beaches in front of and south of Applicant's property and
sand accretion to the undeveloped northern beaches north
of the island. The localized profile steepening and accelerating
sand loss at Applicant's seawall is caused by waves hitting
the vertical seawall, then rebounding -- causing removal of sand
at the foot of the wall and steppening of the offshore profile.
This localized sand loss and erosion has been aggravated Vy the
original placement and alignment of Applicant's seawall. The
seawall protrudes further seaward than adjacent seawalls or
bulkheads. This protrusion, together with the wall's irregular
shape, disrupts the otherwise straight shoreline and acts
as a headland: an abutment which concentrates wave energy
and longshore currents and causes accelerated erosion and sand
loss in the immediate area. The effects of the northerly long-
shore drift and the localized sand loss have been dramatic:
between 1974 and 1980 the sandy beach in front of Appli-
cant's seawall has receded landward 50-60 feet. (Testimony
of Truitt, Tackney, Sharma; P-l, P-2, P-3, P-4,1-2, R-3, R-4,
R-5, R-6, R-7.)
5. In addition, the shoreline of Little Hickory Island is
gradually and inexorably eroding. This is due to long-term
back-yard erosion, a natural process by which barrier islands
gradually migrate landward. (Testimony of Sharma, Tackney,
Truitt.)
II. Applicant's Solution: Place a Rock Revetment in
Front of the Seawall: 6. In October, 1980, Applicant applied
for a DNR permit to place a rock revetment along the
existing seawall. By January, 1981, DNR's Bureau of Beaches
and Shores determined that all of the documentation required
by its rules9 had been submitted and the application was
complete. Subsequently, the Applicant agreed to several
design changes suggested by DNR and agreed to a permit
condition requiring it tb dedicate a travel easement to assure
continued public access to beaches north of its property. As
so modified, DNR proposes to issue the requested:permit.
(Testimony of Truitt; R-l, R-11, R-12.)
7. The proposed permit, with conditions contained in
Respondent's Exhibits R-l, R-11, and R-12. Thelproposed


TIVE ORDERS


3/22/82


shore protection structure is described as a rock toe-scour
revetment to be placed along the seaward face of Applicant's
existing seawall. The revetment extends 7 feet in the shore-
normal direction and approximately 600 linear feet in the
shore-parallel direction. It will consist of lime-rock boulders
of various sizes stacked on top of each other. The top layer
of rocks will be the largest, 75 percent of them weighing greater
than 500 pounds. The rock revetment will rest on a layer
of Filter-X mat to help stabilize the underlying sand. Thle
revetment's elevation will range from 0.0 feet (NGVD)
at the toe of the seawall to -0.5 feet (NGVD) at 7 feet seaward.
Its slope will be no greater than 3 horizontal units to 1
vertical unit. The mean high waterline will intercept the
revetment-seawall interface at a maximum elevation of
approximately +1.5 feet (NGVD). (R-1, R- 1, R-12.)
III. The Effects of the Proposed Revetment: 8. The
proposed revetment will fulfill its primary purpose: it will
protect the Applicant's seawall by reducing the amount of sand
that is scoured and removed from its face and it will add
significant structural stability to the wall. It will provide
these benefits because its sloping surface will intercept and
dissipitate waves which would otherwise hit and rebound off
the vertical seawall. Because wave deflection energy will be
lessened, steepening of the offshore profile will be reduced and
accelerating longshore currents will be slowed. It will also
protect the seawall against storm, but not hurricane, damage.
(Testimony of Truitt, Tackney.)
9. However, the proposed rock revetment will not stop
the migration of sands from the southern to the northern
reaches of Little Hickory Island; the northward flowing
longshore currents will continue. Neither will the revetment
protect Applicant's property against long-term background
erosion; the entire island will continue its steady easterly
retreat to the mainland. Scouring at the ends of the existing
seawall will be reduced, but not eliminated. Eddy currents
at the ends of the revetment will cause some localized
scouring to take place. Wave and water action will take its
toll on the revetment; it will require periodic repair and
rebuilding in the years ahead. (Testimony of Sharma, Tackney,
Truitt.)
10. Although the testimony is conflicting, the weight of
the evidence is that the proposed revetment will not adversely
affect adjacent beaches and the offshore profile. While
localized scouring will not be eliminated, the evidence indicates
that the rates will be lessened that the existing erosion
problems will be mitigated, not aggravated. With reduced
localized scouring, longshore currents will not accelerate,
and the offshore profile will not deepen at increasing rates.
The expert witnesses agreed that, at least for the short term,
the proposed revetment will protect the existing seawall
against at least three-year storm conditions. (Testimony of
Tackney, Truitt, Sharma.)
11. While the revetment will not accelerate or contribute
to the erosion of adjacent lands, it will impair the public's
use of the beaches in front of and to the north of the
Applicant's seawall. Because the revetment will protrude 6
to 7 feet seaward from the seawall -- intercepting the mean high
waterline -- the public will be precluded from traversing
the beaches in front of Applicant's property.' That narrow
corridor of wet-sand beach now permits dry passage only
during low tide. With placement of the rock revetment on
that passageway, it will become impassable to most people


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who use the Little Hickory Island beaches.13 (Testimony
of Sharma, Member of the Public.)
12. Generally, rip-rap revetments, such as that proposed
by Applicant, do not eliminate erosion or cause sand to accrete.
Rather, they tend to increase erosion and escarping beyond
that which would occur if a shoreline is left in its natural,
unaltered condition. (Testimony of Sharma, Truitt, Tackney.)
IV. DNR Coastal Construction Permits: Practice and
Policy: 13. There may be alternatives to the proposed revet-
ment which will not endanger the Applicant's upland structure
or block the public's access to beaches in front of and north
of Applicant's property. DNR does not require the con-
sideration of shore protection alternatives when it processes
coastal construction permit applications. Neither, in its view,
is public access to adjacent bea hes a matter of regulatory con-
cern in this licensing process. At the staff level of DNR, the
sole consideration is engineering design of the proposed
structure:
At the level of staff of the Bureau of Beaches and
Shores there are no other considerations other than simply
engineering judgments on the appropriateness or other
considerations of the design. I have no idea what the
governor and cabinet or executive director may consider.
(Tr. 170.)
This view of the agency's duty helps explain why DNR has
never denied an application to construct a shore protection
revetment, although it has suggested design modifications,
as was done in this case. (Testimony of Truitt.)
t V. Interests of Objectors to Proposed Revetment Project:
14. DNR requires applicants for coastal construction permits
to provide a map showing the location of the proposed
erosion control structure and the shoreline for at least 1,000
feet on each side. Applicants are also required to provide a list
of the names and addresses from the latest county tax role
of all riparian property owners within 1,000 feet. It is DNR
practice, in accordance with its rule, Sec. 16B-24.07, F.A.C.,
to mail notice of a proposed project to those riparian property
owners. By rule, such interested persons or objectors to a
proposed project have the right to appear and make their
positions known to the Governor and Cabinet at the time
the agency decision is made. Id. (Testimony of Truitt; R-l.)
15. Petitioners, Casa Bonita I and II Condominium Assns.,
Inc., and Seascape Condominium I and II Assns., Inc., assert
that the proposed revetment will adversely affect their rights
as riparian owners, that it will cause erosion of their shore-
lines; they also allege that it will prejudice their recreational
use of sovereignty lands the public's beaches lying below
the line of mean high water. Relative to the site of the
proposed revetment, Casa Bonita I Condominium Assn., Inc.,
lies 1,350 to 1,400 feet south; Casa Bonita II Condominium
Assn., Inc.. 670 feet south; Seascape Condominium I and II
Assns., Inc., lie immediately adjacent to the site. (Testimony
of Tackney; R-l, R-14.)
16. No evidence was presented to establish that inter-
venor Lee Co nrty is a riparian property owner within 1,000
feet of th. proposed revetment. The Lee County Board of
S County Commissioners were, however, notified of the instant
application and given an opportunity to object.
17. The parties have submitted proposed findings of fact;
to the extent such findings are incorporated in this Recom- i
mended Order, they are adopted; otherwise they are rejected as
irrelevant to the issues presented or unsupported by the


preponderance of evidence.
CONCLUSIONS OF LAW: 1. The DOAH has jurisdiction
over the parties and subject matter of this proceeding. Sec.
120.57(1), F.S. (1979).
2. This is a licensing proceeding under Sec. 161.041, F.S.
(1979), which provides:
Permits required. If any person, firm, corporation,
county, municipality, township, special district, or any
public agency shall desire to make any coastal construction
or reconstruction or change of existing structures, or any
construction or physical activity undertaken specifically
for shore protection purposes, or other structures and physical
activity including groins, jetties, moles, breakwaters, sea-
walls, revetments, artificial nourishment, inlet sediment
bypassing, excavation or maintenance dredging of inlet
channels, or other deposition or removal of beach material
or construction of other structures if of a solid or highly
impermeable design, upon sovereignty lands of Florida,
below the mean high waterline of any tidal water of the
state, a coastal construction permit must be obtained
from the Department of Natural Resources prior to the
commencement of such work. Application for coastal con-
struction permits as defined above shall be made to the
Division of Marine Resources upon such terms and con-
ditions as set by the department.
Applicant seeks a permit to place a 600-foot rock revetment
(for shore protection purposes) upon the State's sovereignty
lands below the mean high waterline of the Gulf of
Mexico. The revetment will be placed on the wet-sand area
or the foreshore of the Little Hickory Island. While it will
provide limited protection to an endangered seawall, it will
also block or interfere with the public's use and enjoyment of
the nearby beaches.
Petitioners, alleging adverse affects on their property and
access to nearby beaches, oppose the issuance of the requested
permit. Applicant responds that petitioners lack standing as
parties because they failed to prove that licensing of the
proposed revetment would determine or affect their sub-
stantial interests. See, Sees. 120.57(1), 120.52(10), F.S.
(1979); Florida Department of Offender Rehabilitation v.
Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied,
357 So.2d 1215 (Fla. 1978).
The Administrative Procedure Act ("APA")16 allows
agencies to adopt rules granting persons the right to participate
in the formulation of agency action. Sec. 120.52(10)(b), F.S.
(1979). Persons may exercise such rights even though they
"may not necessarily possess any interests which are adversely,
or even substantially, affected by the proposed [agency]
action." Daniels v. Florida Parole and Probation Commission,
401 So.2d 1351, 1354 (Fla. 1st DCA 1981). The APA recog-
nizes that agencies may broaden the zone of party representa-
tion at the administrative level, that because of the nature
of agency action involved agencies may encourage the
participation of "interested persons." Id.; also see, City of
Key West v. Askew, 324 So.2d 655 (Fla. 1st DCA 1976).
In coastal construction licensing proceedings, DNR has '
adopted rules which entitle certain persons to participate in
the formulation of its final decision:
16B-24.07 Processing Procedure.

(3) If the proposed project is acceptable to the


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Bureau, public notice will be mailed to owners of record of
S the riparian property within one thousand feet (1,000')
of the proposed construction, and to such other persons or
agencies as are known to be interested in the proposed
erosion control structure. Thirty (30) calendar [sic] days
shall be allowed for response to the public notice.
(4) Upon expiration of the public notice and after
due consideration of comments received in response to
that notice, the applicant and all persons who have filed
objection to the proposed erosion control structures will
be notified by mail of the recommendation which will be
made to the Executive Board of the Department (Governor
and Cabinet) and the date, time and place when the recom-
mendation will be heard. The applicant and all interested
parties may appear and/or be represented at that time and
make their positions known to the Executive Board of
the Department.
DNR's decision to broaden party participation in coastal
construction licensing decisions implicitly recognizes the public
trust which is impressed on sovereignty lands. In 1893, the
Florida Supreme Court first enunciated the public trust
doctrine in State v. Black River Phosphate Company, 13 So.
640, 645 (Fla. 1893):
[T] he navigable waters of the state and the soil beneath
them... were the property ... of the people of the state
in their united or sovereign capacity, and were held,
not for the purposes of sale or conversion into other
values,... but for the use and enjoyment of the same by
all the people of the state ....
At common law, the title to sovereignty lands is "held in
trust for the people for purposes of navigation, fishing,
bathing, and similar uses." Hayes v. Bowman, 91 So.2d 795,
799 (Fla. 1957). It is property which "should be devoted to
the fulfillment of the purposes of the trust, to wit: the service
of the people." Id.
In 1968, the public trust doctrine was elevated to con-
stitutional status in Florida:
Sovereignty lands. -- The title to lands under navigable
waters ... including beaches below mean high water lines,
is held by the state, by virtue of its sovereignty, in
trust for all the people. ... Private use of portions of such
lands may be authorized by law, but only when not
contrary to the public interest. Art. X, Sec. 11, Fla.
Const. (1968).
Coastal construction permits issued under Sec. 161.041,
by definition, involve use (in this case, the private use) of
sovereignty lands held in trust for all the people. It is
altogether reasonable that DNR should, by rule, accord to
beneficiaries of that trust the right to participate in decisions
affecting the trust res.
Moreover, DNR's substantive rules which implement the
coastal construction permitting law seemingly make the
extent to which such construction interferes with use of
sovereignty lands a matter of agency concern:
16B-24.08 Coastal construction permit conditions.
*
(2) By accepting the [coastal construction] permit, the
applicant agrees to:
(d) Obstruct or impair the use of the beach by the
public in the areas seaward of the mean high water only to


3/22/82


the extent determined by the Department to be unavoidable.
Lastly, coastal construction permitting is authorized by
Part I, Ch. 161, F.S. (1979), the "Beach and Shore
Preservation Act." A stated purpose of this Act is to
protect the State's coastal natural resources from impairment
or destruction. See, Sec. 161.053, F.S. (1979). Consequently,
the "Environmental Protection Act of 1971" grants citizens,
including corporations, the statutory right to intervene as par-
ties in coastal construction licensing proceedings on the filing
of a verified pleading asserting that the activity to be
licensed will impair the natural resources of the State. Sec. 403.
412(5), F.S. (1979). In Florida Wildlife Federation v. State
Department of Environmental Regulation, 390 So.2d 64
(Fla. 1980), the Florida Supreme Court held that by enacting
Sec. 403.412, the Environmental Protection Act, the legisla-
ture declared "the protection of the environment to be a
collective responsibility ... ." Id. at 68. In the instant case,
petitioners did not invoke (by filing the requisite verified
petition) the right to intervene conferred by Sec. 403.412,
although their petition alleged, in part, that Applicant's pro-
posed activity would impair the natural resources of the State.
However, Sec. 403.412 reveals a legislative policy to facilitate
and broaden citizen participation in State environmental
licensing decisions, not a policy to discourage or unnecessarily
restrict such participation.
Based on the foregoing, it is concluded that petitioners
and intervenor demonstrated sufficient interest in and opposi-
tion to DNR's proposed licensing decision so as to entitle
them to standing as parties under Rule 16B-24.07(3) and (4),
F.A.C.
3. Applicants ordinarily have the burden of demonstrating
entitlement to the requested permit. Florida Department
of Transportation v. J.W.C. Company, Inc., 396 So.2d
787, 789 (Fla. 1st DCA 1981). In the instant case, it is con-
cluded that the Applicant has adequately met this burden;
it has shown by a preponderance of evidence that its applica-
tion, with the agreed-upon conditions, fulfills the requirements
of Sec. 161.041, as implemented by DNR rules and practice.
For their part, petitioners and intervenor have not proved the
contrary by evidence of at least equivalent quality. See,
Florida Department of Transportation, supra.
This conclusion rests on an interpretation of Sec. 161.041
and DNR's implementing rules urged by DNR and Applicant.18
Under that interpretation, DNR's duty is narrowly confined
to evaluating the engineering design of a specific shore
protection structure proposed by an applicant, i.e., DNR does
not determine whether the proposal is the optimum shore
protection method available or whether there are other
shore protection techniques which are more effective and les
burdensome to coastal resources in the short or long term.
This agency interpretation has been established by past
agency practice and cannot be changed without a record
foundation. Florida Cities Water Company v. Florida Public
Service Commission, 384 So.2d 1280 (Fla. 1980). DNR rules
do not explicitly require applicants to evaluate alternative
shore protection actions or select the best of several available
alternatives. Moreover, APA proceedings cannot be used
to expand an agency's authority, or an applicant's burden, -
beyond the parameters of the substantive statutory scheme
and implementing rules.
4. The petitioners and intervenor contend that the


634-A


_






CI1E AS 4 FAIR


3/22/82 ADMINISTRA

Applicant failed to initially supply, in sufficient detail, all
information required by the application form and DNR rules -
that such failure provides sufficient ground to deny the
application. This contention overlooks the purpose of Sec.
120.57 proceedings; they are "intended to formulate agency
action, not to review action taken earlier and preliminarily."
McDonald v. Department of Banking and Finance, 346
So.2d 569, 584 (Fla. 1st DCA 1977). The evidence submitted
at hearing was sufficient to overcome any minor irregularities
associated with Applicant's initial submission to the agency.
RECOMMENDATION: Based on the foregoing findings
of fact and conclusions of law, it is
RECOMMENDED: That the application of Bonita Beach
Club Condominium Association, Inc., for a coastal con-
struction permit be GRANTED, subject to the agreed-upon
conditions described above, including the dedication of a
travel easement flowing the public to circumvent the 600-foot
rock revetment.
DONE AND RECOMMENDED this 16th day of October,
1981, in Tallahassee, Florida.
/s/ R. L. Caleen, Jr., Hearing Officer, DOAH.

1. Petitioners', Respondents', and Intervenor's Exhibits will be
referred to as "P- ," "R- ," and "I- ," respectively. Pages
in the transcript of hearing wil be referred to as "Tr. ."
2. This delay was caused by the Applicant's filing of the application
with DNR's Bureau of State Land Management rather than the Bureau
of Beaches and Shores, the bureau responsible for processing coastal
construction permit applications.
3. Several objections had been received to the proposed revetment
on grounds that it would block public access to beach areas north of
the property. (R-12.)
4. These positions were identified by the parties in their prehearing
stipulation dated July 13, 1981.
5. At the time of hearing, Rule 28-5.104, F.A.C., required presiding
officers to "make diligent inquiry to assure that the representative
is capable of preserving the rights of a party." See, The Florida Bar
v. Moses, 380 So.2d 412 (Fla. 1980).
6. See, Article X, Sec. 11, Fla. Const. (1968); Sec. 120.57(1)(b)4,
F.S. (1979).
7. Applicant is experiencing more severe wave and water-related
problems at its shoreline than its neighbors on Little Hickory Island.
(Tr. 202.)
8. A portion of Applicant's seawall juts out 30 to 40 feet further
seaward than adjacent property. (Tr. 200-201.)
9. Chapter 16B-24, F.A.C.
10. R-12 amends R-1.
11. Elevation is referenced to National Geodetic Vertical Datum
(NGVD).
12. The contrary testimony of Dinesh C. Sharma is rejected as
unpersuasive.
13. Many people in the area traverse the beach in front of
Applicant's property in order to reach the northern spit of the
island which is undeveloped and pristine.
14. Members of the public raised the specter that, if this revetment
is allowed, a solid line or rock revetments will eventually be erected
on the island's beaches. In this way, they fear they will lose their right
to enjcy the sandy beaches.
15. This position was reit-rated by DNR in its post-hearing filing
despite the fact that the structure v;'.i be constructed below mean
high water, on sovereignty lands held in trust for the public's use and
enjoyment.
16. Chonter '20, F.S. (1979).
17. Ho- :vc., prior to issuing a permit, an applicant must obtain
hle consent of the Board of Trustees of the Internal Improvement
Trust Fund, the owner and manager of sovereignty lands. Sec. 253.77
(1), F.S. (Supp. 1980). The Trustees exercise broad discretion in
deciding whether a proposed use should be allowed. See, State v.
Florida National Properties, Inc., 338 So.2d 13 (Fla. 1976); Hayes
v. Bowman, supra at 802.


TIVE ORDERS


635-A


18. Great weight is given to an agency's interpretation of
its own rules and indigenous statute. State ex reL Biscayne Kennel
Club v. Board of Business Regulation, 276 So.2d 823, 828 (Fla.
1973).
19. This is a restrictive interpretation whichils not compelled by
the language of Sec. 161.041, F.S. (1979). There is a significant
difference between the exercise of governmentaJ power over the use
of public lands and governmental power (such as zoning) which limits
a person's use of his private property.
20. Section 161.04T F.S. (1979), requires agencies to cite
specific authorizing rules when requesting additional information from
an applicant.
21. This recommendation assumes that the Trustees of the
Internal Improvement Trust Fund have previously consented to
this proposed use of sovereignty lands. See, Sec. 253.77, F.S.
(Supp. 1980).
*

BOARD OF NURSING. Registered Nurse-License--
Revocation-Abuse of Newborn Infants Shown-
Showing of Actual Injury Held Not Required.




IN RE JOANN THERESA JENSEN, RIN., License No. 70429-2.
Case No. 80-MIS-41.

ORDER
THIS CAUSE came on to be heard by the Florida Board
of Nursing of the DPR on October 29, 1981, in West Palm
Beach, Florida, for the purpose of determining whether dis-
ciplinary action should be taken against the license of the
licensee pursuant to Sec. 464.018(1Xf), F.S. The licensee
was present and represented by Counsel, Marie Hotaling. In
accordance with the licensee's request, a formal hearing con-
ducted by the DOAH was held in this matter in accordance
with the provisions of Sec. 120.57(1), F.S. This hearing
resulted in the issuance of a Recommended Order by the
Hearing Officer, William B. Thomas, dated September 25,
1981.
The Recommended Order, in all pertinent parts, including
the Findings of Fact, Conclusions of Law, and Recommenda-
tions, is hereby ADOPTED by the Board as its own Order
and is incorporated herein in its entirety by reference.
THEREFORE, it is ORDERED AND ADJUDGED
that the license of the licensee to practice nursing in the
State of Florida be and is hereby REVOKED.
BY ORDER of the Florida Board of Nursing, this 29th
day of October, 1981.
/s/ Mary F. Henry, Chairman, Board of Nursing.
RECOMMENDED ORDER
Pursuant to notice, the DOAH, by its duly designated
Hearing Officer, William B. Thomas, held a formal hearing
in this case on July 23 and 24, 1981, in Fort Lauderdale, Fla.
The transcript was filed on August 28, 1981, and the parties
were given ten days thereafter within which to submit
proposed findings of fact and conclusions of law to the
Hearing Officer. However, no post-hearing submissions were
received, and the filing of the transcript closed the recordio,
this proceeding.
APPEARANCES: For Petitioner: William M. Furlow,
Esquire, 130 North Monroe Street, Tallahassee, Florida 32301;




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