Arrestable Offenses / Crimes under Fla. Stat. 161.053
S161.053 7 - CONSERVATION-ENVIRONMENT - VIOLATE COASTAL CONSTRUCTION EXCAVATION REGS - M: F
S161.053 7 - CONSERVATION-ENVIRONMENT - DRIVE VEHICLE ON SAND DUNE AND CAUSE DAMAGE - M: S
S161.053 8 - CONSERVATION-ENVIRONMENT - RENUMBERED. SEE REC # 8072 - M: F
S161.053 8 - CONSERVATION-ENVIRONMENT - RENUMBERED. SEE REC # 8073 - M: S
CopyCited 15 times | Published | Florida 5th District Court of Appeal
...NOTES [1] Indialantic, Fla., Zoning Code § 28-102 (1977), gives the Board of Adjustment the authority to grant a variance in such cases where additional requirements are met. [2] Appeal of Board decisions to the Town Council is provided by section 28-107, Indialantic Zoning Code (1977). [3] § 161.053, Fla....
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 1991 Fla. App. LEXIS 4783, 1991 WL 87671
...Additionally, should your project fall short of any ninety day progress levels to be references in your "build out" plan, *195 your project will lose it's (sic) exemption status and all remaining portions of the project, seaward of the control line will require a permit from the (DNR) in accordance with the provisions of Section 161.053, Florida Statutes....
...s remained stopped for a period of six months or more. DNR relies on this rule and interprets its language to mean that construction must be continuous and without cessation of activities for more than six months. This rule's language is premised on § 161.053(9), Fla....
...(Emphasis added.) Wingfield argued that DNR's requirements that once a project is given an exempt status it must remain under active construction, and that the owner must submit for DNR's approval a "build out" schedule, constitute an illicit rule as such requirements are not contained in DNR's rules. DNR contends that under § 161.053, no construction activity may take place seaward of the CCCL without a permit, and that any projects which are under construction at the time a new CCCL is established are exempt from such permitting requirements....
...the project. DNR concedes that there is no specific statutory language authorizing the above *196 requirements. Nevertheless, it takes the position that the requirements are authorized and sanctioned by Chapter 161, Fla. Stat., and more specifically § 161.053, and by Rule 16B-33.002(56) and Rule 16B-33.004(1). Rule 16B-33.004(1) provides: Any structures under construction prior to the establishment of a coastal construction control line in a particular county are exempt from the provisions of Section 161.053, Florida Statutes, and this Chapter, except as noted in Subsection 161.053(12), Florida Statutes. DNR acknowledges that there is nothing in Rule 16B-33.004(1) that specifically authorizes it to impose the challenged requirements. It does, however, rely upon § 161.053(12), which removes the exempt status of a project if there are any subsequent modifications which "require, involve, or include any additions to, or repair or modification of, the existing foundation of that structure," as authority for it to make a determination whether the project owner has made any substantial change in the nature of the project if the construction has been continuous. Finally, DNR relies upon § 161.053(1)(a) which sets forth the legislative intent behind the establishment of the CCCL....
...tions necessary or convenient for the carrying out of the duties, obligations, powers and responsibilities conferred on the department or any of its divisions." According to DNR, the statutes which the rule implements are §§ 370.02(5),
161.052 and
161.053. Of particular importance to note is §
161.053(9), Fla....
...the establishment of the coastal construction control line as provided herein, provided such structures may not be materially altered except as provided in subsection (5). *198 (Emphasis added.) This section of the statute exempts from the effect of § 161.053, those structures which are under construction prior to the establishment of a CCCL....
...After it has become exempt, the statute authorizes DNR only to prevent the owner from materially changing the structure. If the legislature intended that DNR require an exempt project to remain under continuous construction, it could have easily added the words "and after" to § 161.053(9) so that, in order to retain an exempt status, a project would have to be under construction both "prior to and after" the establishment of a CCCL....
...appealed is affirmed. We recognize and appreciate DNR's desire to exercise some control over exempt construction seaward of the CCCL in order to prevent property owners from performing the minimum construction to come within the exempt provision of § 161.053(9) and then failing to complete the structure within a reasonable time....
...SCHWARTZ, ALAN R., Associate Judge, dissents with opinion. SCHWARTZ, ALAN R., Associate Judge (dissenting). In my judgment, the challenged rule represents no more than a rational explanation and elucidation of the ambiguous expression "under construction" as it is employed in section 161.053(9), Florida Statutes (1989), and does not therefore create any unauthorized addition to the provisions of the statute nor to the authority of the department....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1988 WL 138497
...50 feet of the line of mean high water at any riparian coastal location fronting the Gulf of Mexico or Atlantic coast shoreline of the state, exclusive of bays, inlets, rivers, bayous, creeks, passes, and the like." In 1971, the legislature enacted section 161.053, which directed the Department of Natural Resources ("the Department") to establish Coastal Construction Setback Lines (CCSL) "on a county basis along the sand beaches of the state fronting on the Atlantic Ocean and the Gulf of Mexico...
...perties and control of beach erosion and then only after a public hearing, defines "that portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions," § 161.053(1), Fla....
...sting ground elevations; drive any vehicle on, over, or across any sand dune; or damage or cause to be damaged such sand dune or vegetation growing thereon seaward thereof, except as hereinafter provided" *1121 (i.e., by permit from the Department), § 161.053(2)....
...edings which would normally occur prior to the final adoption of a rule) and to provide for a rule challenge under section
120.56 once the CCCL is established, reviewable by the district courts of appeal under section
120.68, Florida Statutes. Under section
161.053(2), any landowner "who feels that such line as established is unduly restrictive or prevents a legitimate use of his property shall be granted a review of the line upon written request" and the Department's decision "shall be subject...
...process. The court's dismissal of the complaint based upon St. Joe's failure to exhaust administrative remedies was therefore proper unless St. Joe did not have available to it an adequate administrative remedy. St. Joe argues that the provision of section
161.053(2) permitting challenge of the CCCL under section
120.56 must be read in pari materia with the last sentence of section
120.56(5), which states that "failure to proceed under this section shall not constitute failure to exhaust admini...
...or judicial review," and was meant to "enhance remedies available under the Act rather than encouraging circuit court intrusion into the administrative process." Willis,
344 So.2d at 592. St. Joe asserts that it needed to obtain an interpretation of section
161.053(1) which defines the Department's jurisdiction to establish a CCCL "along the sand beaches of *1123 the state fronting on the Atlantic Ocean or the Gulf of Mexico" and needed to remove the cloud upon its title imposed by the Department's "easement" over its land under section
161.053(2)....
...Joe by which it may seek to remove the restrictions on the use of its property imposed by the CCCL: a rule challenge under section
120.56, on the ground that imposition of the CCCL is an invalid exercise of delegated legislative authority; a review of the CCCL as it affects St. Joe's property, authorized by section
161.053(2); or a section
120.57 challenge of the Department's denial of any permit it may seek. In each case, the *1125 agency's decision would be reviewable by this court under section
120.68, Florida Statutes. St. Joe might also have sought a declaratory statement under section
120.565 regarding the applicability of section
161.053 to its land, which would have been reviewable by this court....
...Smith's dissent,
424 So.2d at 804. A successful rule challenge under section
120.56 would result in a modified rule eliminating the part of the CCCL imposed on St. Joe's property, which would then be recorded in the Gulf County public records. A successful review of the CCCL under section
161.053(2) would also result in a modified rule, as would a declaration of the Department's opinion, under section
120.565, that section
161.053 is not applicable to St....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1994 WL 64957
...[5] *1117 In the present case, the parties' briefs devote page after page to an array of disputed issues of fact. The constitutionality of Florida Administrative Code Rule 16B-26.004 is by no means "the sole issue presented." Those attacking the rule also urge the unconstitutionality of section 161.053, Florida Statutes, claim that the coastal construction control line has been set "where there is no actual `beach-dune system' in fact," and complain that the line was drawn without regard for the effect a "seawall and revetment ......
...(Emphasis supplied.) [10] Appellants are free to pursue their attack on Florida Administrative Code Rule 16B-26.004 by initiating a rule challenge under section
120.56, Florida Statutes (1993); or, in individual cases, pursuing the remedies provided by section
161.053(2), Florida Statutes (1993), which provides: "Any riparian upland owner who feels that such line as established is unduly restrictive or prevents a legitimate use of his property shall be granted a review of the line upon written requ...
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...These appeals arise out of a 1984 proceeding initiated by the Department of Natural Resources (DNR) to amend rule 16B-26.06, Florida Administrative Code, for the purpose of reestablishing the coastal construction control line in Charlotte County pursuant to section 161.053(2), Florida Statutes (1983)....
...There presently remain nine issues raised by appellants on this appeal. For reasons hereafter discussed, we affirm the hearing officer's final order upholding the validity of the proposed rule reestablishing the coastal construction control line for Charlotte County. I STATUTORY PROVISIONS AND FACTS Section 161.053(1), Florida Statutes (1983), 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 natu...
...ol line further landward than the impact zone of a 100-year storm surge, provided such segment or segments do not extend beyond the landward toe of the coastal barrier dune structure that intercepts the 100-year storm surge." DNR is authorized in subsection 161.053(2) to establish such control lines for counties having sand beaches "only after it has been determined from a comprehensive engineering study and topographic survey that the establishment of such control lines is necessary for the pro...
...en discretion to review established control lines "after consideration of hydrographic and topographic data which indicates shoreline changes that render established coastal construction control lines to be ineffective for the purposes of this act." § 161.053(2), Fla. Stat. (1983). In May 1974 DNR began collecting data along the Charlotte County coastline and in 1977 established the first coastal construction control line for the county. Pursuant to the review provision in section 161.053(2), DNR has undertaken to reestablish the control line in Charlotte County....
...areas and eroding in others. In 1984 DNR initiated an administrative proceeding to amend rule 16B-26.06 to establish a proposed new control line *213 in Charlotte County which would be substantially landward of the 1977 line for most of its length. Section 161.053(2) sets forth the following seven factors which must be considered by DNR in establishing a coastal construction control line: (1) "ground elevations in relation to historical storm and hurricane tides"; (2) "predicted maximum wave up...
...dismissed,
300 So.2d 900 (Fla. 1974), and other cases. Island Harbor points to certain statutory language and DNR's own rules in support of its contention that DNR has impermissibly extended its jurisdiction beyond that granted by statute. It explains that section
161.053(1) gives DNR authority to set coastal construction control lines only "along the sand beaches of the state," and that, had the legislature intended to establish a program to regulate construction in flood zone areas, then it would not have limited DNR's authority to counties having sand beaches....
...beach-dune system given during Ms. Flack's testimony, i.e., "that geophysical area which is subject to severe fluctuations that could be anticipated in a 100-year storm event" (Vol. 2, p. 100), is inconsistent with the statutory purpose set forth in section 161.053, Florida Statute (1983)....
...It says that this definition goes well beyond the language of the statute because it contains no reference to either beach or dune and fails to take into consideration whether the geophysical area subject to severe fluctuations is part of the actual "beach-dune system." Again, we find no basis for reversal in this argument. Section 161.053(1) sets forth the statutory purpose to preserve and protect "the beaches in this state and the coastal barrier dunes adjacent to such beaches," and we recognize that any definition of the beach-dune system cannot disregard the beaches and dunes....
...WHETHER DNR'S METHODOLOGY BEARS NO REASONABLE RELATIONSHIP TO THE PURPOSE OF THE BEACH AND SHORE PRESERVATION ACT WITH REGARD TO THE SETTING OF COASTAL CONSTRUCTION CONTROL LINES. Island Harbor argues under this point that methodologies used by DNR do *216 not bear a reasonable relationship to the purpose of section 161.053, Florida Statutes (1983), because the three-foot wave criterion was not limited to the statutorily mandated beach-dune system and because the Kriebel Erosion Model was modified with a "safety factor" that served to impermissibly exten...
...cause use of the multiplier greatly exaggerates the effects of erosion during a 100-year storm. Again we are not persuaded by these arguments, and conclude that use of the three-foot wave methodology bears a reasonable relationship to the purpose of section 161.053....
...model. In light of these factors, and the necessity to convert average erosion under the Kriebel model into erosion at the point of a direct hit, we are unable to conclude that use of the multiplier bears no reasonable relationship to the purpose of section 161.053....
...for permitting an agency to use new scientific methodology in administrative proceedings within its statutory charge. In this case, the legislature, without providing explicit definitions, used diverse scientific terms, criteria, and words of art in section 161.053 which are meaningless to the ordinary person in the absence of expert technical and scientific explanation....
...ency, this point is insufficient *219 to require us to set aside the order validating the proposed rule amendment. D. WHETHER THE STATUTORY PREDICATE FOR THE REESTABLISHMENT OF THE CHARLOTTE COUNTY COASTAL CONSTRUCTION CONTROL LINE HAS NOT BEEN MET. Section 161.053(2), Florida Statutes (1983), directs DNR to review and reestablish coastal construction control lines where hydrographic and topographic data indicate that shoreline changes have rendered the established lines ineffective....
...een no "shoreline changes" rendering the 1977 line ineffective within the meaning of the statute. It further argues that the hearing officer erred in upholding DNR's right to justify changing the control line by reference to factors not contained in section 161.053(2), i.e., recently developed, more-accurate techniques for predicting the impact of 100-year storms, and changes to section 161.053 enacted subsequent to 1977....
...f the mean sea level line further seaward, which involved a net loss of approximately 59,000 cubic yards of beach material between 1974 and 1982. In view of this evidence we find Island Harbor's argument under this point unpersuasive. As we construe section 161.053(2), Florida Statutes (1983), DNR need not demonstrate that every segment of the coastline has undergone an adverse change before it can review and determine that the established control line is not effectively fulfilling the statutory purpose; significant changes to a substantial portion of the coast are sufficient to warrant revisiting the entire line in a particular county. [9] Moreover, section 161.053(1) states that DNR shall establish control lines "on a county basis." There is no direct statutory authority for DNR to review and modify only select portions of a control line in a particular county except upon a specific request for modification by an affected riparian *220 upland owner. Section 161.053(2), Fla....
...That the validity of the proposed new line was judged in part on the basis of newer methodologies and more recent statutory provisions does not mean that the proper statutory predicate for reevaluating the control line in Charlotte County was not established. DNR is not constrained by section 161.053(2) to review the effectiveness of an old line solely on the basis of the scientific knowledge and methodologies existing when that section was enacted or the original line was set....
...without merit. III. SUNSET REALTY'S APPEAL We now turn our attention to the following two points on appeal raised by Sunset Realty. *222 A. WHETHER THE LOCATION OF THE NEW CHARLOTTE COUNTY COASTAL CONSTRUCTION CONTROL LINE WAS NOT IN ACCORDANCE WITH SECTION 161.053(1), FLORIDA STATUTES, AND IS, THEREFORE, AN INVALID EXERCISE OF DELEGATED LEGISLATIVE AUTHORITY....
...e three-foot wave was landward of the proposed control line established by the Kriebel model, that portion of the beach-dune system landward of the Kriebel model line would not be subject to "severe fluctuations" as a result of a 100-year storm. Yet section 161.053 requires the control line to be established "so as to define that portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge." Sunset Realty also argues that the testimony of Dr....
...sion Model, and the three-foot wave as previously discussed under Island Harbor's appeal. V. CONCLUSION To summarize, we approve the definition of "beach-dune system" applied in this case as not exceeding the intent of the statutory language used in section 161.053, Florida Statutes (1983)....
...The facts as found by the hearing officer are supported by competent, substantial evidence, and application of the methodologies to these facts has not resulted in DNR's setting the coastal construction control line more landward than permitted by section 161.053....
...tory responsibilities. The new coastal construction control line which we hereby approve will, at many locations along the Charlotte County coast, subject most of, and sometimes the entire, land mass of the barrier islands to regulation by DNR under section 161.053, Florida Statutes (1983)....
...tion and make specific changes as needed to insure that the agency, the Cabinet, and the courts are accurately discerning and applying the true statutory intent. AFFIRMED. SHIVERS and WENTWORTH, JJ., concur. NOTES [1] In 1985 the legislature amended section 161.053, Florida Statutes, to provide a new procedure for adoption of coastal construction control lines....
...ce competent, substantial evidence of the reliability of the selected methodology; otherwise, the use of the methodology would undoubtedly be considered arbitrary and capricious. [9] We note that in 1985 the legislature added a new subsection (3) to section 161.053 which directed that established coastal construction control lines not updated since June 30, 1980, will be treated as a "critical priority for reestablishment by the department." Ch....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2003 WL 22298745
...orida Statutes. The Act provides that once the CCL is established, as it was in this case, "no person ... shall ... make any excavation, remove any beach material, or otherwise alter existing ground elevations" except in compliance with the statute. § 161.053(2)(a), Fla. Stat. (2000). For any such work on a dune, a permit issued by the DEP is required. See § 161.053(5)....
...coastal municipality may establish coastal construction zoning and building codes in lieu of the provisions of this section, provided such zones and codes are approved by the department as being adequate to preserve and protect the beaches and coastal barrier dunes adjacent to such beaches...." § 161.053(4)....
...1st DCA 1994) (concluding "the existence of a pervasive scheme of regulation by the Legislature over an electric utility does not preclude the county from adopting a franchise fee for the use of county right-of-way"). GLA contends that such preemption is shown by section 161.053(4), which allows local regulation "in lieu of" the statute's provisions only where such local regulation has been approved by the DEP and where the local government has sufficient funds and expertise to preserve the dune and beaches. However, GLA overlooks section 161.053(5)(b) which provides for exceptions by which the DEP may permit structures seaward of the CCL....
...the statute, "the Department has always interpreted the provisions of Chapter 161 in this manner, i.e., as allowing local setback ordinances such as Boca Raton's. Indeed, state law expressly requires deference to such local setback requirements. See § 161.053(5)(b)." We give considerable deference to the DEP's position, as it is the agency charged with the responsibility of enforcing these regulations....
CopyCited 6 times | Published | Florida 4th District Court of Appeal
...below the mean high-water line of any body of tidal water... ." "Coastal construction" is defined to include "any work or activity which is likely to have a material physical effect on existing coastal conditions or natural shore processes. " § 370.01(17), Fla. Stat.; §
161.021(6), Fla. Stat. Section
161.053, Florida Statutes provides that the Department shall establish the coastal construction control line so that the state can preserve and protect the beaches of the state from "imprudent construction which can jeopardize the stability of the beach-dune system"....
...Once such a line is established "no person ... shall construct any structure whatsoever seaward thereof; make any excavation, remove any beach material ...; or damage or cause to be damaged such sand dune or the vegetation growing thereon seaward thereof, except as hereinafter provided." § 161.053(2), Fla. Stat. Section 161.053(5), Florida Statutes, provides that a permit to alter, excavate or construct property seaward of established coastal construction control lines may be granted in certain circumstances listed....
...There is no mention of permits for re-vegetation, or dune management activities, although the statutes do provide that the department may condition the nature, timing and sequence of construction activities to provide protection... . to native salt-resistant vegetation and endangered plant communities." § 161.053(10), Fla....
...ce activity. Rule 16B-33.04 F.A.C., "Exemptions from Permit Requirements", provides: (7) At the discretion of the staff, utilizing applicable criteria, the following may be considered not to fall within the meaning and intent of Sections
161.052 and
161.053, Florida Statutes: (f) Maintenance of existing beach/dune vegetation following staff guidelines....
...on under Chapter 161. Under Chapter 161 the primary jurisdiction over all beaches in the State of Florida is with DNR. County and municipal regulation may be established in lieu of state regulation only where specifically approved by the Department. Section 161.053(4), Florida Statutes provides: Any coastal county or coastal municipality may establish coastal construction zoning and building codes in lieu of the provisions of this section, provided such zones and codes are approved by the depart...
...Should the department determine at any time that the program is inadequately administered, the department shall have authority to revoke the authority granted to the county or municipality. *1388 Furthermore, some permitting activities may be delegated to a coastal county or municipality under section 161.053(16), Florida Statutes: In keeping with the intent of subsection (4), and at the discretion of the department, authority for permitting certain types of activities which have been defined by the department may be delegated by the department to a coastal county or coastal municipality....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1981 Fla. App. LEXIS 19391
...o protect the dunes, bluffs and natural vegetation of their beaches, and Chapter 161, Florida Statutes (1979), the "Beach and Shore Preservation Act," has as one of its stated purposes the protection and preservation of the "beach dune system." [13] Section 161.053(1) provides: The Legislature finds and declares that the beaches of the state, by their nature, are subject to frequent and severe fluctuations and represent one of Florida's most valuable natural resources and that it is in the publi...
...e and having advanced to emergency proportions, it is hereby declared to be in the public interest that the Legislature make provision for publicly financed beach nourishment and restoration and erosion control projects... . [14] §§
161.052(2)(b),
161.053(4), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2006 WL 1835321
...Gulf of Mexico than the current coastal construction control line. We reverse. Without a DEP permit, "no person, firm, corporation, or governmental agency shall construct any structure whatsoever seaward" of a coastal construction control line. [2] § 161.053(2)(a), Fla....
...plicants to construct the new BellaVista complex, including the proposed parking garage, pool, deck, dune walkover, concrete driveway, and storm drainage facilities. [5] DEP took the position that it had the authority to grant the permit pursuant to section 161.053(13)(a), Florida Statutes, asserting that the proposed project would constitute a "rebuilding" of the two one-story buildings currently on the property, which were damaged in the storm....
...if such relocation or rebuilding would not cause further harm to the beach-dune system, and if, in the case of rebuilding, such rebuilding complies with the provisions of subsection (5), and otherwise complies with the provisions of this subsection. § 161.053(13)(a), Fla....
...new construction seaward of the coastal construction control line. The parties and the administrative law judge proceeded on the agreed assumption that, while all projects (new construction and "rebuilding" alike) must comport with *1211 every other section 161.053(5) factor, "rebuilding" projects, unlike new construction, do not require DEP to take into account the "reasonably continuous and uniform construction line" factor set out in section 161.053(5)(b) and the administrative rule which implements the statute....
...ramatically *1212 from the razed original's. Accepting DEP's view, the administrative law judge endorsed the legal conclusion that the proposed BellaVista project was a "more landward relocation or rebuilding of [] damaged or existing structure[s]." § 161.053(13)(a), Fla. Stat. (2004). In the final order under review, DEP adopted the recommended order in its entirety. But section 161.053(13)(a) applies only to "the repair or rebuilding within the confines of the original foundation of a major structure" or, "[a]lternatively, . . . [the] landward relocation or rebuilding of a damaged or existing structure." § 161.053(13)(a), Fla....
...fore the improvement or repair is started; or (b) If the structure has been damaged and is being restored, before the damage occurred. §
161.54(12), Fla. Stat. (2004) (emphasis supplied). On the facts of this case, the term "rebuilding," as used in section
161.053(13)(a), "is clear and unambiguous, [and] we need not consider the Department's interpretation or the statute's legislative history." State, Dep't of Rev....
...ent with a totally new, altogether different, nine-story edifice, complete with appurtenant structures. As a fallback, the applicants argue for affirmance on the ground that DEP concluded that the proposed project passed muster under the substantive section 161.053(5) and (6) criteria, on balance, albeit without considering the line of continuous construction criterion....
...ek. DEP's failure to take the "reasonably continuous and uniform line of construction" into account fell outside the range of discretion delegated to DEP by law and was inconsistent with its own rule. See §
120.68(7)(e), Fla. Stat. (2004). See also §
161.053(5)(b), Fla....
...of Admin. Hearings) ( available at
1994 Fla. Div. Adm. Hear. LEXIS 5971, *13) ("To establish the line of construction, DEP typically looks at the seaward location of structures 1,000 feet on each side of the proposed structure to be permitted."). See also §
161.053(5)(b), Fla. Stat. (2004). [2] The coastal construction control line applies to all new construction. The Legislature specifically exempted from the section
161.053 requirements "structures existing or under construction prior to the establishment of the coastal construction control line." §
161.053(9), Fla....
...A DEP permit is also required to "make any excavation, remove any beach material, or otherwise alter existing ground elevations; drive any vehicle on, over, or across any sand dune; or damage or cause to be damaged such sand dune or vegetation growing thereon seaward" of a coastal construction control line. § 161.053(2)(a), Fla. Stat. (2004). [3] Section 161.053(1)(a) makes explicit the legislative intent that permits be required for construction seaward of an established coastal construction control line: [I]t is the intent of the Legislature to provide that the department establish coastal...
...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. § 161.053(1)(a), Fla....
...shoreline of the state, exclusive of bays, inlets, rivers, bayous, creeks, passes, and the like." St. Joe Paper Co. v. Fla. Dep't of Nat. Res.,
536 So.2d 1119, 1120 (Fla. 1st DCA 1988) (internal quotations omitted). In 1971, the Legislature enacted section
161.053, which directed the Department of Natural Resources to establish coastal construction setback lines "on a county basis along the sand beaches of the state fronting on the Atlantic Ocean and the Gulf of Mexico for the purpose of protec...
...site cannot be disregarded. The ALJ concluded in his recommended order a determination not disputed in this appeal that "[t]he line of construction is a factor for new construction but not for rebuilding or relocation of a building landward." Section 161.053(5)(b) provides: (b) If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing, and i...
...structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department if such structure is also approved by the department. . . . § 161.053(5)(b), Fla....
...Rule 62B-33.005(9) of the Florida Administrative Code provides: 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), F.S., and this rule 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 subsections 62B-33.005(3), (4), (7), (8), or (10), F.A.C....
...nts."); see also Kelly Cadillac, Inc. v. Fla. Dep't of Envtl. Prot., 20 F.A.L.R. 1343, 1360 (Fla. Dep't of Envtl. Prot.1998) ( available at
1998 Fla. ENV LEXIS 43, *42) ("[T]he line of construction is not a prohibition in and of itself. . . ."). [7] Section
161.053(13)(a) is concerned with "rebuilding" in two situations: rebuilding within the confines of the original foundation of a major structure concededly not applicable here or rebuilding a damaged or existing structure on another site farther landward....
...een established for the proposed project at issue here? A No. Q [W]as a reasonably continuous and uniform line of construction determination necessary for the proposed project? A No. As to the reasoning behind this omission, he testified: A[S]ection 161.053 of the Florida Statute[s] is the governing Statute for Coastal Construction Control Line Permitting....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 1513
...Section
166.021(3)(c), Florida Statutes (1983) provides that the legislative body of a municipality may not legislate on "any subject expressly preempted to state or county government by the constitution or by general law" (emphasis added). The statute which purportedly preempts the town zoning ordinance is Section
161.053, Florida Statutes (1983). Looking to this statute, section
161.053(1) expresses the general legislative policy in favor of beach and shore preservation, and establishes the coastal construction control line. Section
161.053(4)(b) provides that counties and municipalities may establish zoning or building codes which are equal to or stricter than the state requirements, in terms of setback from the shoreline....
...However, there is no language in the statute preempting local zoning ordinances such as the one at issue, which establish off road setback distances and are not concerned with beach and shore preservation. Even if preemption could be implied, however, Section 161.053 simply does not evince any legislative policy that would conflict with the objectives of the Town of Jupiter Island in enacting its zoning scheme....
CopyCited 3 times | Published | District Court, M.D. Florida | 20 Envtl. L. Rep. (Envtl. Law Inst.) 20636, 1989 U.S. Dist. LEXIS 15679, 1989 WL 158483
...§
161.052 (1970), which prohibits construction of dwellings within 50 feet of the mean high water line. In 1978, the town adopted ordinance 10-781, establishing front setbacks for coastal construction. It used the same coastal construction setback line established by the state legislature in 1971. TR at 354-56. Fla.Stat. §
161.053 (1971) prohibited construction seaward of the established line without prior permission, waiver, or variance from the Department of Natural Resources....
...e vegetation and cause erosion of the dune and sand on adjacent property. TR at 311-21, 398, 411-52. The town relies on the legislative intent advanced by the state legislature when adopting the underlying Beach and Shore Preservation Act, Fla.Stat. § 161.053(1) (1979): "it is in the public interest to preserve and protect [the beaches of the state] from imprudent construction which can jeopardize the stability of the beach dune system, accelerate erosion, provide inadequate protection of uplan...
...and was replaced by the application for a variance to build the 12-unit condominium. TR at 134-36, 191-92; D.E. 39 and 39A. The state statute prohibiting construction of habitable structures seaward of the 30-year seasonal high water line (Fla.Stat. § 161.053(6)(c) (1971)) specifically provides an exception for single-family dwellings if they are not constructed on or seaward of a frontal dune....
CopyCited 3 times | Published | District Court, N.D. Florida | 2009 U.S. Dist. LEXIS 91838, 2009 WL 3030736
...A"). Fla. Stat. §§
161.011.45. Among other things, the BSPA requires the Florida Department of Environmental Protection ("FDEP") to establish coastal construction control lines ("CCCL") on a county basis along the sand beaches of the state. Id. at §
161.053(1)(a)....
...ased on a 100-year storm surge, storm waves, or other predictable weather conditions." Id. While new construction and alterations to existing structures seaward of the CCCL may be allowed, these activities require a CCCL permit from the FDEP. Id. at § 161.053(5). As a condition for issuing such permits, the FDEP may "require mitigation, financial, or other assurances acceptable to the department as may be necessary to assure performance of the conditions of a permit." Id. at § 161.053(5)(f)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...The sole issue presented by Woodholly is whether the City carried its burden of proving the necessity or justification for the development in accordance with Rule 16B-33.05(1), Florida Administrative Code, which provides: (1) A coastal construction control line (Section 161.053) is intended to define that portion of the beach and dune system which is subject to severe fluctuations based on a one-hundred-year storm surge or other predictable weather conditions....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 4187, 1991 WL 72069
...The order granted the application of Biscayne Beach Hotel Associates, Ltd./Key Biscayne Limited Partnership (the Hotel) for a coastal construction control line permit to build an addition to the Sonesta Beach Hotel on Key Biscayne. For the following reasons, we reverse and remand. Pursuant to section 161.053(l)(a), Florida Statutes (1987), the Florida legislature gave DNR the authority to establish a coastal construction control line (CCCL) in each of the state’s coastal counties to define that portion of the beach dune system that is subject to severe fluctuation based upon “a 100-year storm surge, storm waves, or other predictable weather conditions.” In order to build on property seaward of the CCCL, the property owner must obtain a permit from DNR. § 161.053(5)(a), Fla.Stat....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...urt erred in determining that the settlement agreement was for a 10-year duration. We reverse. This case had its genesis in DNR's 1977 rulemaking initiative wherein DNR established a coastal construction setback line in Charlotte County, pursuant to Section 161.053, Florida Statutes (1975)....
...not limited to, pile supported wooden, elevated dune overwalks, viewing platforms, beach huts and gazebos, may be constructed gulfward of the established coastal construction setback line and only then after complying with the provisions of Chapters 161.053, Florida Statutes....
...78-257, § 5, Laws of Florida. The statute was further amended in 1980 when the 5-year mandatory review by DNR was changed to provide for "review at the discretion of the department after consideration of hydrographic and topographic data." Ch. 80-183, § 3, Laws of Fla.; § 161.053, Fla....
...n Count III, Sunset sought an order holding that DNR is equitably estopped from nullifying or modifying the settlement agreement. In its answer and affirmative defenses, DNR asserted as a defense that the settlement agreement at issue was based upon Section 161.053, Florida Statutes (1975), which required DNR to establish coastal construction setback lines and to review the lines every five years....
...After studying such shoreline changes, DNR had designated Charlotte County as a priority county for reestablishment of the CCCL. DNR alleged that Sunset had actual notice of the 5-year time period for review and possible reestablishment of the CCCL, due to the reference in the settlement agreement to Section 161.053, Florida Statutes (1975) which expressly mandated the 5-year restudy. *366 In 1984, at the request of the governor and cabinet, DNR prepared a document entitled "Coastal Construction Control Line Restudy/Reestablishment Process, pursuant to Section 161.053, Florida Statutes Status Overview." This status report designated Charlotte County a high priority area, and rated the adequacy of its existing control line as "critical." DNR personnel rate the adequacy of a control line in terms...
...Both Sunset and DNR filed motions for partial summary judgment. DNR's position was that the settlement agreement entered into between the parties expressly states the terms of the agreement were to operate in compliance with the provisions of Chapter 161.053, Florida Statutes which mandated a review of the control lines every five years....
...The trial court entered final partial summary judgment in favor of Sunset, finding the 1978 settlement agreement a valid, enforceable contract effective for ten years from the date of its execution. The trial court further found that DNR had "waived its regulatory jurisdiction pursuant to Section 161.053, Florida Statutes (1977), to the extent it is inconsistent with the Settlement Agreement." DNR appealed, and Sunset cross-appealed....
...20 years from the date of the execution of the agreement. DNR, on the other hand, contends the settlement agreement expressly stated that construction governed by the agreement could only be performed "after complying with the provisions of Chapter 161.053, Florida Statutes," and the Chapter 161.053 reference provides the only expression regarding duration....
...Second, we reject the suggestion that DNR, by entering into the agreement with Sunset, waived its regulatory powers for the effective period of the agreement. The provisions applicable to the 1978 settlement agreement, which govern DNR's authority *367 to grant a waiver or variance, are set forth in Section 161.053(2), Florida Statutes (1977) [1] and Florida Administrative Code Rule 16B-25.05 (1975)....
...g the sand beaches of the state fronting on the Atlantic Ocean and the Gulf of Mexico," and to review those setback lines "at 5-year intervals from time of establishment or at the written request of officials of affected counties or municipalities." § 161.053(1), Fla....
...1973). This we cannot do, just as DNR is not empowered to waive its Chapter 161 regulatory responsibilities for a 15-20 year period. By the same token, just as DNR is prohibited from exercising unrestricted discretion in applying the provisions of Section 161.053, DNR is also bound to comply with its own rules and policies....
...one of law, and not one involving a disputed issue of material fact." Travelers Insurance Company v. Spencer,
397 So.2d 358, 360 (Fla. 1st DCA 1981). In the instant case, Sunset did not file a formal application for a waiver or variance, pursuant to Section
161.053(2), Florida Statutes (1977) and Florida Administrative Code Rule 16B-25.05....
...with the time frame to which Sunset claims entitlement. The settlement agreement executed by the parties stated expressly that construction "gulfward of the established coastal construction setback line" must be in compliance with the provisions of Section 161.053....
...ne so under applicable law. Therefore, the trial court's order granting partial summary judgment in favor of Sunset is reversed and remanded with directions to enter partial summary judgment in favor of DNR. ERVIN and SHIVERS, JJ., concur. NOTES [1] § 161.053(2), Fla....
...Plot plan of existing structures and the proposed construction or activity showing the significant distances from the proposed construction or activity to the setback line. 4. If the variance is requested under the provisions of Section
161.052(2)(b), Florida Statutes, or Section
161.053(2)(b), Florida Statutes, the survey shall show the existing structures that are considered to have established the construction line. 5. Variances requested under the provisions of Section
161.053, Florida Statutes, shall specify the distance and direction from the property in question to the nearest setback line permanent reference monument and the number of that monument....
...r across the beach and/or dunes, including but not limited to storm water runoff, swimming pool drainage or air conditioner cooling water discharge. (D) [*] (3) For those counties in which a setback line has been established, under the provisions of Section 161.053, Florida Statutes, there is on file with the Department storm tide data and some data on shoreline stability. For most projects, these data will be sufficient to satisfy the requirements of Section 161.053(2)(a), Florida Statutes, for such data and such data need not be filed by the applicant....
...roper evaluation of an application. (5) The Department may waive any of the above requirements if in the opinion of the Department such information is not necessary for a proper evaluation of the proposed work or activity. General Authority
161.052,
161.053, 370.021 FS. Law Implemented
161.052,
161.053, 370.021(1) FS....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2002 WL 1906491
...upon approval by the State. November of 1993, appellants filed a joint application with the DEP for a construction permit, which was required since the lots were located seaward of the Broward County Coastal Construction Control Line ("CCCL"). See §§ 161.053(1)(a),(5), Fla....
...n. Specifically, the officer found (1) both lots were located seaward of the seasonal high water line, and (2) appellants' application sought permission to build a "duplex," not "two single family attached dwellings" as classified by appellants. See § 161.053(6)(a)(2), Fla. Stat. (1994). As such, the application was defective for failure to comply with section 161.053, Florida Statutes, and Fla. Admin. Code R. 62B33.005 and 62B-33.007. See §§ 161.053(6)(b),(c), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 14464, 2015 WL 5714613
...ings are supported by competent, substantial evidence. See §
120.68(7)(b), Fla. Stat. (2014); Peace River/Manasota Regional Water Supply Auth. v. IMC Phosphates Co.,
18 So.3d 1079, 1082 (Fla. 2d DCA 2009). Here, the Bank argues that requirements in §
161.053(1)(a), Florida Statutes, for special siting and design considerations protecting adjacent properties from construction projects seaward of the Coastal Construction Control Line (CCCL) weren’t met....
CopyPublished | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 12839, 2001 WL 1033585
...s points. The beachwalk was to be located seaward of the CCCL, the line which establishes that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions. See § 161.053(l)(a). As a result, a permit from DEP was required. § 161.053(5), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...forcement
mechanisms for violations. In the 1970s, the legislature added provisions to part I to
regulate construction seaward of a "coastal construction control line" to be established
by the Department of Environmental Protection. See generally § 161.053, Fla. Stat.
(1971). The legislature's stated purpose in adopting these provisions was to protect
beaches and coastal barrier dunes from imprudent construction. § 161.053(1)(a).
1
We reject without comment the City's remaining appellate arguments....
...ts here.
-6-
In current form, these statutory provisions require the department to
establish coastal construction control lines on a county-by-county basis along the coasts
of the state. § 161.053(1)(a), Fla....
...In general, those control lines are to "be
established so as to define that portion of the beach-dune system which is subject to
severe fluctuations based on 100-year storm surge, storm waves, or other predictable
weather conditions." Id.; see also § 161.053(2)(a) (describing process required for
establishing coastal construction control lines)....
...Once a control line is established, it is
unlawful to "construct any structure whatsoever seaward thereof; make any excavation,
remove any beach material, or otherwise alter existing ground elevations; [or] drive any
vehicle on, over, or across any sand dune" unless one has a permit issued by the
department. § 161.053(2)(a). A coastal construction control line permit can be issued
only if certain statutory criteria related to the effect of the proposed activity on the land
seaward of the control line are established. See § 161.053(2)(a), (4)(a).
The department has established a control line for Pinellas County that
runs through Treasure Island....
...ese dictionary definitions. See, e.g.,
§
316.003(57), Fla. Stat. (2014) (similarly defining the word "traffic" within the chapters
on motor vehicles).
- 13 -
turn authorized the department to grant. See §
161.053(2)(a), (4)(a)....
CopyPublished | Florida 1st District Court of Appeal
...property owners, Amanda Pope
and Anastasia, Inc., contest a final order of the Secretary of the Department of
Environmental Protection (DEP), which held that a permit for the repairs was
unnecessary. At issue is whether DEP’s interpretation of section 161.053(11)(b),
Florida Statutes, which exempts “activities” that do not “cause a measurable
interference with the natural functioning of the coastal system” from permitting
requirements, is clearly erroneous....
...Counsel for DEP, however, advised them the repair work may qualify
for an exemption. Shortly thereafter, they made a request for an exemption
determination, which DEP granted because “the proposed work appear[ed] to be
exempt from the permitting requirements of [the] Department pursuant to Section
161.053(11), Florida Statutes.” DEP later issued an amended exemption notice,
which described the factual context of the exemption:
The repair and maintenance [of the walkover] is to consist of
replacement of bolts, screws, p...
...Based on the above description, the proposed work is not expected to
cause a measurable interference with the natural functioning of the
coastal system. Therefore, the Department has determined that the
proposed work satisfies the exemption requirements of Section
161.053(11)(b), Florida Statutes....
...of existing posts, installing new posts, and bolting the new and old ones together.
After a hearing on the matter at which a DEP expert testified about the
effects of the repair work, the administrative law judge (ALJ) issued a
recommended order concluding that under subsection 161.053(11)(b), the
“proposed project would not cause measurable interference with the natural
functioning of the coastal system, and that the criteria for the grant of an exemption
from the CCCL permitting requirements were met.” Nonetheless, the ALJ
concluded that DEP could not rely on subsection 161.053(11)(b); instead, only the
“existing structures” exemption in subsection 161.053(11)(a) was deemed relevant.
The ALJ concluded that subsection 11(a) is a specific statutory provision dealing
5
with “existing structures” that controls over the more general provision in
subsection (11)(b) dealing with “activities.” As such, the Graces were not entitled
to an exemption.
In its final order, however, DEP rejected the ALJ’s legal interpretation of
section 161.053(11), concluding that the only issue was whether the foundation
repair work on an existing structure such as a dune walkover, while not exempt
under section 161.053(11)(a), could be exempt if the “activities” in repairing the
foundation met the requirements of section 161.053(11)(b), specifically that they
cause no measureable interference with the natural functioning of the coastal
system....
...In rejecting the ALJ’s approach, DEP noted the absence of any statutory
language that excluded “activities” related to “existing structures” from the
exemption in subsection 11(b). It also noted that the ALJ’s approach was incorrect
because “applying both paragraphs (a) and (b) of subsection 161.053(11) to the
type of activity in this case would not render either provision meaningless....
...(internal citations omitted).
Under the relevant statutory framework, DEP may grant a permit to allow
coastal construction when certain requirements are met; it may also grant
exemptions to those requirements. The two exemptions at issue are found in
subsections 161.053(11)(a) and (b), which provide:
(11)(a) The coastal construction control requirements defined in
subsection (1) and the requirements of the erosion projections in
subsection (5) do not apply to any modification, maintenance,...
....]
(b) Activities seaward of the coastal construction control line
which are determined by the department not to cause a
measurable interference with the natural functioning of the
coastal system are exempt from the requirements of subsection
(4).
§ 161.053(11)(a)-(b), Fla....
...when the out-of-court statements are made by a child victim of abuse.”). Absent a
clear indication from the Legislature that permits are always required for repair
work on foundations of existing structures, no matter how inconsequential, we
cannot read section 161.053(11) to impose such a limitation.
§ 161.053, Fla....
...Finally, DEP’s interpretation is given great deference because it is charged
with enforcing this statute. See Fla. Hosp. v. Agency for Health Care Admin.,
823
So. 2d 844, 847 (Fla. 1st DCA 2002). Because DEP’s interpretation gives effect to
the plain and ordinary meaning of section
161.053(11), and gives a more
reasonable interpretation of the exemption as applied in the coastal construction
11
context, we conclude it is not clearly erroneous; it is eminently reasonable....
...Nelson,
424
So. 2d 852, 858 (Fla. 1st DCA 1982); State, Dep’t of Com., Div. of Labor v.
Matthews Corp.,
358 So. 2d 256, 260 (Fla. 1st DCA 1978).
III.
In conclusion, we find that the DEP’s interpretation of section
161.053(11)
is reasonable....
CopyPublished | Florida 1st District Court of Appeal | 1992 Fla. App. LEXIS 2800, 1992 WL 51254
...the Gulf of Mexico, or the Straits of Florida. The lines are established so as to define that portion of the beach-dune system which is subject to severe *139 fluctuations based upon a 100 year storm surge, storm waves, or other predictable weather. Section 161.053(l)(a), Florida Statutes....
...e of mean high water at any riparian coastal location fronting the Gulf of Mexico or Atlantic coast shoreline of the state, exclusive of bays, inlets, rivers, bayous, creeks, passes, and the like.” (emphasis supplied). The 1971 Legislature adopted Section
161.053, Florida Statutes, authorizing the establishment of “coastal construction setback lines along the sand beaches of the State of Florida fronting on the Atlantic Ocean and the Gulf of Mexico.” Contrary to the language of Section
161.052, in adopting Section
161.053 the Legislature did not specifically exclude “bays, inlets, rivers, bayous, creeks, *140 passes, and the like” from areas “fronting” on the Atlantic Ocean or Gulf of Mexico for which coastal construction setback lines were to be set. One must assume that, had the Legislature intended to exempt property located on bays from inclusion in an area protected by a CCCL, the Legislature would have specifically done so, as it has done previously. Although Section
161.053 has been amended subsequently, none of the amendments....
CopyPublished | Florida 4th District Court of Appeal
...FDEP requires state-level permits to ensure
“imprudent construction” does not “jeopardize the stability of the beach-
dune system, accelerate erosion, provide inadequate protection to upland
structures, [or] endanger adjacent properties . . . .” § 161.053(1)(a), Fla.
Stat. (2023). To that end, section 161.053 requires that an owner may not
alter, excavate, or construct on property seaward of a coastal construction
control line without a FDEP permit. See § 161.053(4), Fla....
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 20820
...We agree the permit was prematurely issued and reverse. Appellees are in the midst of construction of a condominium on some beachfront property in Broward County. A controversy arose in 1981 concerning the appellees’ need for a construction control line permit pursuant to Section 161.053, Florida Statutes since the Broward County Construction Control Line became effective November 17, 1981....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 11735
...Florida’s Beach and Shore Preservation Act mandates the establishment of “coastal construction control lines” (“CCCL”), which “define that portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions.” § 161.053(l)(a), Fla. Stat. Once a CCCL is established, no construction seaward of it may occur without first obtaining a CCCL permit from the DEP. See id. § 161.053(4). Pursuant to section 161.053(5)(b), the DEP may not issue CCCL permits for a structure in a location that is “based on the [DEPj’s projections of erosion in the area, ... seaward of the seasonal high-water line within 30 years after the date of application for the permit. The procedures for determining such erosion shall be established by rule.” Id. § 161.053(5)(b). Pursuant to section 161.053(20), the “[DEP] may adopt rules related to the establishment of [CCCLs]; activities seaward of the [CCCL]; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties.” Id. § 161.053(20)....
...A 30-year erosion projection of the seasonal high water line (SHWL) shall be made by the [DEP] on a site specific basis upon receipt of an application with the required topographic survey, pursuant to Rules 62B-33.008 and 62B-33.0081, F.A.C., for any activity affected by the requirements of Section 161.053(5), F.S....
...uirement to obtain, a permit. But, that was not the question. The DEP had the authority to issue a variance as a matter of law because it involved a site-specific exception to its usual methods of calculating the thirty-year erosion projection line. § 161.053(5)(b), (20), Fla. Stat. Consistent with the plain language of the statute, the methods of determining the thirty-year erosion projection line are established by the DEP through rule adoption. § 161.053(5)(b), Fla....
...Reversed and Remanded for further proceedings consistent with this opinion. WARNER and CONNER, JJ„ concur. 1. The SHWL is “the line formed by the intersection of the rising shore and the elevation of 150 percent of the local mean tidal range above local mean high water.” § 161.053(5)(a)2„ Fla....
