Amanda Pope and Anastasia, Inc. v. Daniel and Donna Grace

151 So. 3d 523
CourtDistrict Court of Appeal of Florida
DecidedNovember 5, 2014
Docket13-0258
StatusPublished

This text of 151 So. 3d 523 (Amanda Pope and Anastasia, Inc. v. Daniel and Donna Grace) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amanda Pope and Anastasia, Inc. v. Daniel and Donna Grace, 151 So. 3d 523 (Fla. Ct. App. 2014).

Opinion

*524 MAKAR, J.

Repairs to the foundation of a dune walkover structure triggered this legal dispute, one in which two beachfront residential 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. We hold that it is not.

I.

This litigation involves all property owners within Milliken’s Replat, which is a pocket-sized neighborhood of ten residential lots, each on Milliken Lane, a short cul-de-sac off of A1A that lies just west of and perpendicular to the Atlantic Ocean, nestled in a southern Crescent Beach community adjacent to the Matanzas River and State Forest. Amanda Pope and Anastasia, Inc., own the only two beachfront lots, which adjoin one another at the cul-de-sac’s end. Their westerly neighbors, Daniel and Donna Grace and twelve other property owners, collectively own the eight landward lots situated just off the beachfront. For simplicity, we will refer to these property owners together as the Graces, who are the lead named appel-lees.

The plat of the Milliken Lane properties, drafted in 1983, has a line drawn between the beachfront lots of Ms. Pope and Anastasia, Inc., which is labeled “6’ WIDTH WALKWAY FOR WALKWAY TO BEACH.” Sometime thereafter (the record doesn’t say when), a dune walkover was built, which lies within the six-foot easement straddling their respective property lines, to facilitate the ability of all Milliken Lane property owners to access the beach by crossing over, and leaving undisturbed, the underlying sand dunes. Milliken’s Replat is subject to a Road Maintenance Agreement, which was recorded in 1994 and requires the property owners to, among other things, maintain a “certain six (6) foot wide walkway reflected on the plat running between the cul-de-sac at the end of Milliken Lane to the Atlantic Ocean, including existing dunes walk-over structure.” The agreement also states that “[sjuch road and walkway shall be maintained by the parties to this agreement [... ] in a condition so as to make it free and passable in perpetuity.”

Repairing the neighborhood’s dune walkover has been a contentious issue for years. During a March 2011 meeting, all of the property owners, except Ms. Pope and Anastasia, Inc., agreed that the dune walkover needed to be repaired. A site inspection conducted by DEP also recommended repairing or replacing a major portion of the walkover due to the age of the wood and its hardware. Ms. Pope and Anastasia, Inc., countered that the other property owners previously rejected their proposal for repairs and that they “have had long-standing objections to [the other owners] performing work on the walkover structure without their input and authorization.”

Believing it advisable to do so, 1 the Graces applied for a permit to repair the *525 walkover. 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 appeared] to be exempt from the permitting requirements of [the] Department pursuant to Section 161.058(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, plates and other fasteners; replacement of wood members such as handrails, posts above walkover deck planks, deck planks and stringers; and repairs to support members such as the addition of sister posts next to existing posts. Repair and maintenance activities shall not result in the realignment or reconfiguration of the walkover outside of the extents of the original structure. With the exception of the minimal ground disturbance required to repair posts or to add sister posts, no vegetation shall be removed nor dune topography altered.
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(ll)(b), Florida Statutes. All debris must be removed and disposed of landward of the coastal construction control line.

In response, Ms. Pope and Anastasia, Inc., filed petitions for an administrative hearing. Before the hearing took place in May 2012, the repairs commenced. As to the foundation work, two construction workers sistered the walkover’s posts, a process that involved using posthole diggers to manually excavate around the base 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 161.058(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 with “existing structures” that controls over the more general provision in subsection (ll)(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 “ac *526 tivities” 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. Indeed, the proposed activity in this case could qualify for an exemption under either provision if the activity meets the requirements of each exemption.” This appeal follows.

II.

This is a case of statutory interpretation, one in which an agency’s conclusions of law are subject to de novo review. Sullivan v. Fla. Dep’t of Envtl. Prot., 890 So.2d 417, 420 (Fla. 1st DCA 2004). We have discussed this appellate standard as it applies to DEP before:

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Bluebook (online)
151 So. 3d 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amanda-pope-and-anastasia-inc-v-daniel-and-donna-grace-fladistctapp-2014.