STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
IN RE: Petition for Waiver of Rule 62B-33.007(3)(c), Florida Administrative Code,
by Martha H. Chumber, on behalf of Kenneth P. Meiring, in St.
Johns County; File Number SJ-729 (Waiver)
OGC Case No. 99-0192
On the date shown below, the Secretary of the Department of Environmental Protection
considered the petition for waiver of Rule 62B-33.007(3)(c), Florida Administrative Code
(F.A.C.), pursuant to Section 120.542, Florida Statutes (F.S.), and in accordance with Rule
28-104, F.A.C., to allow improvements to w existing single-family dwelling which constitutes a
substantial improvement by modifying existing foundation, to support a new second story
building without bringing the building to current structural standards, in St. John, County. After
considering the recommendation of the staff and hearing any testimony or argument concerning
the merits of and objections to the request, the Department adopts the following findings of fact
and conclusion, of law:
- Findings of Fact -
1. On October 20, 1998, the Department received an application (File Number SJ-729)
from Gerarc Vermey on behalf of Kenneth P. Meiring to modify existing foundations to support
a new second story additior to the existing nonconforming single-family dwelling seaward of the
coastal construction control line. The subjeci property is located approximately 320 feet and 423
feet north of the Department of Environmental Protection'i reference monument R-75, in St.
2. The application (SJ-729) was deemed complete on October 20, 1998.
3. On January 12, 1999, the Department notified the applicant that because the addition of
a second stor) would constitute a substantial improvement of the existing structure, the
foundation of the entire structure wouk be required to fully conform with all applicable state
laws, rules, and regulations.
4. On January 12, 1999, the applicant waived the 90-day time limit imposed on the
Department for processing completed applications pursuant to Chapter 120, F.S.
5. On February 4, 1999, the Department received a petition for waiver of Rule 62B-
33.007(3), F.A.C. The waiver seeks authority to construct a second story addition that would
otherwise require the entire structure to be fully conforming as discussed above. The waiver was
considered complete upon receipt.
6. On February 26, 1999, the Department published the subject petition in the Florida
Administrative Weekly in order to solicit public comment for the proposed construction pursuant
to Section 120.542(6), F.S. The Department did not receive any public comments in response to
the advertisement in the Florida Administrative Weekly.
7. Rule 62B-33.007(3), F.A.C., authorizes the Department to grant a waiver of the
foundation requirements for additions, repairs or modifications to existing nonconforming
habitable major structures, provided that the addition, repair or modification does not advance
the seaward limits of construction at the site and does not constitute rebuilding of the existing
8. Rule 62B-33.002(45), F.A.C., defines rebuilding as a substantial improvement of the
existing structure as defined in Section 161.54, F.S. The proposed improvements are a substantial
improvement to, anc therefore constituted rebuilding of, the existing dwelling.
9. Subsection 120.542(2), F.S., states "(v)ariances and waivers shall be granted when the
person subjeci to the rule demonstrates that the purpose of the underlying statute (s. 161.053) will
be or has been achieved by other means by the person and when application of a rule would
create a substantial hardship or would violate principles of fairness... " The waiver procedure was
intended to provide relief from unreasonable, unfair, a& unintended results in unique cases. In
the present case, the purpose of the statute will be achieved because the building will not be
undermined by erosion, in the event of a 100-year storm because the building is located landward
of the erosion limits.
- Conclusions of Law -
1. There are two requirements to obtain a waiver of a rule under Section 120.542, F.S.
First, a petitioner must demonstrate that the purpose of the underlying statute will be or has been
achieved by other means. Second, a petitioner must demonstrate that application of the rule
would create a substantial hardship or violate principles of fairness.
2. Rule 62B-33.007(3)(c), F.A.C., requires habitable major structures to be constructed on
a pile foundation. However, this rule allows for a waiver of the pile foundation requirement for
certain additions, and other improvements to existing nonconforming dwellings provided the
work does not constitute rebuilding of the existing dwelling. The rebuilding of the existing
dwelling does not qualify for waiver of the requirement to construct it above a pile foundation
because rebuilding is defined in Rule 62B-33.002(45), F.A.C., as a substantial improvement of
the existing structure as defined in Section 161.54, F.S. The proposed improvements constitute a
substantial improvement to the existing dwelling. The petition for waiver seeks relief to the
resulting requirement that the entire dwelling be constructed on a pile foundation.
3. Based on the fact that the proposed improvements, are confined to the limits of the
existing foundation, are designed to resist the predicted forces during a 100-year storm event, and
are not expected to result in significant adverse impacts to the beach and dune system, the
general purpose of the underlying statute (s. 161.053, F.S.) could be achieved, thereby satisfying
the first criteria of Section 120.542, F.S., for a waiver.
4. Based on the fact that the owner would have to demolish their existing home creating a
substantial hardship and that the existing home extends only 5 feet seaward of the coastal
construction control line the application of Rule 62B-33.003(c) would cause the owner a
5. Based on the foregoing findings of fact and conclusions of law, the Department of
Environmental Protection approves the applicant's petition for waiver from Rule 62B-
33.007(3)(c), F.A.C.; attaches hereto the project location, the project description, and the
standard and special permit conditions; and by this reference incorporates same in this final
Any party to this proceeding has the right to request review of this order by the Governor
and Cabinet sitting as the Florida Land and Water Adjudicatory Commission, in accordance with
Section 20.255 of the Florida Statutes. To initiate such a review, you must file a request for it,
and the request must be received b3 a member of the Commission or the Secretary of the
Commission at The Capitol, Tallahassee, Florida 32399 within twenty days after this order is
clerked. You must also serve both the Department of Environmenta Protection, Department
Clerk, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399 and any
other person named in this order with a copy of the request within twenty days from the date of
Additionally, any person whose substantial interests are affected by any decision of the
Department or the application has the right to request an administrative hearing in accordance
with the provisions of Sections 120.569 and 120.57 of the Florida Statutes. Should you desire an
administrative hearing, your request mus comply with the provisions of Rule 62-103.155(2) of
the Florida Administrative Code, as indicated below. Sen~ requests for hearings to the
Department of Environmental Protection, Office of General Counsel, 390C Commonwealth
Boulevard, Mail Station 35, Tallahassee, Florida 32399. The Department must receive the
request within fourteen days after your receipt of this notice.
When the Department receives an adequate and timely filed request for hearing, the
Department wil request the assignment of a hearing officer. Likewise, when the Florida Land and
Adjudicatory Commission receives an adequate and timely petition, the Commission will request
the assignment of a hearing officer. Once a hearing officer is requested, the referring agency will
take no further action with respect to the proceeding except as a party litigant, as long as the
Division of Administrative Hearings has jurisdiction over the forma proceeding.
Rule 62-103.155(2) of the Florida Administrative Code requires that a petition or request
for hearing contain the following information:
(a) The name, address, and telephone number of each petitioner, the applicant's name and
address, the Department file number, and the county in which the proposed project would be
(b) A statement of how and when each petitioner received notice of the Department's
action or proposed action;
(c) A statement of how each petitioner's substantial interests are affected by the
Department's action or proposed action;
(d) A statement of the material facts disputed by the petitioner, if any;
(e) A statement of facts that the petitioner contends warrant reversal or modification of
the Department's action or proposed action;
(f) A statement of which Rules or statutes that the petitioner contends require reversal or
modification of the Department's action or proposed action; and
(g) A statement of the relief sought by the petitioner, stating precisely the action that the
petitioner wants the Department to take.
A person may request an extension of time to petition for an administrative hearing. The
person filing the request for extension must do so within the time limits for filing a petition
described above and serve all parties with the request. The request must state why an extension is
needed. The Department will grant an extension only when good cause is shown.
If a petition or request for extension of time is filed, further order of the Department
becomes necessar3 to effectuate this notice. Accordingly, the Department's final action may be
different from the position taker by it in this notice. Actions undertaken by you under this permit,
pending the lapse of time allowed for the filing of such a request for hearing, may be subject to
modification, removal, or restoration.
Failure to petition within the allowed time frame constitutes waiver of any right that such
a person has to request a hearing under Section 120.57 of the Florida Statutes and to participate
as a party to the proceeding. If a legally sufficient petition for hearing is not timely received this
notice constitutes final agency action. When this order becomes final, any party to the order has
the right to seek judicial review under Section 120.57 of tht Florida Statutes and Rule 9.030(b)(1)
and 9. 110 of the Florida Rules of Appellate Procedure by filing a notict of appeal with the
Department of Environmental Protection, Office of General Counsel, Department Clerk, 390(
Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399, and with the
appropriate district cour of appeal within thirty days after this final order is filed with the
Department Clerk. The notice filed with tht district court must be accompanied by the filing fee
specified in Subsection 35.22(3) of the Florida Statutes. Any subsequent intervention will only be
at the approval of the presiding officer upon motion filed under Rule 60Q 2.010, Florida
A person whose substantial interests are affected by the Department's proposed agency
action may choose to pursue mediation as an alternative remedy under Section 120.573 before
the deadline for filing a petition. Choosing mediation will not adversely affect the right to a
hearing if mediation does not result in a settlement. The procedures for pursuing mediation are
set forth below.
A person may pursue mediation by reaching a mediation agreement with all parties to the
proceeding (which include the applicant, the Department, and any person who has filed a timely
and sufficient petition for a hearing) and by showing how the substantial interests of each
mediating party are affected by the Department's action or proposed action. The agreement must
be filed in (received by) the Office of General Counsel of the Department at 3900
Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, by the same
deadline as set forth above for the filing of a petition.
The agreement to mediate must include the following:
(a) The names, addresses, and telephone numbers of any persons who may attend the
(b) The name, address, and telephone number of the mediator selected by the parties, or a
provision foi selecting a mediator within a specified time;
(c) The agreed allocation of the costs and fees associated with the mediation;
(d) The agreement of the parties on the confidentiality of discussions and documents
introduced during mediation;
(e) The date, time, and place of the first mediation session, or a deadline for holding the
first session, if no mediator has yet been chosen;
(f) The name of each party's representative who shall have the authority to settle or
recommend settlement, and
(g) Either an explanation of how the substantial interests of each mediating party will be
affected by the action or proposed action addressed in this notice of intent or a statement clearly
identifying the petition for hearing that each party has already filed, and incorporating it by
(h) The signatures of all parties or their authorized representatives.
As provided in Section 120.573 of the Florida Statutes, the timely agreement of all parties
to mediate wit toll the time limitations imposed by Sections 120.569 and 120.57 for requesting
and holding an administrativc hearing. Unless otherwise agreed by the parties, the mediation
must be concluded within sixty days of the execution of the agreement. If mediation results in
settlement of the administrative dispute, the Department musi enter a final order incorporating
the agreement of the parties. Persons whose substantial interest will be affectec by such a
modified final decision of the Department have a right to petition for a hearing only in
accordance witt the requirements for such set forth above, and must therefore file their petitions
within fourteen days of receip of this notice. If mediation terminates without settlement of the
dispute, the Department shall notify all parties in writing that the administrative hearing
processes under Sections 120.569 and 120.57 remain available foi disposition of the dispute, and
the notice will specify the deadlines that then will apply for challenging the agenc) action and
electing remedies under those two statutes.
DONE AND ORDERED this ______ day of ___________, 1999, in Tallahassee, Florida.
State of Florida Department
of Environmental Protection
David B. Struhs
PROJECT LOCATION: Between approximately 340 feet and 420 feet north of the Department
of Environmental Protection's reference monument R-39, in St. Johns County. Project address:
2501 South Pont Vedra Boulevard, Ponte Vedra Beach.
Second Story Addition to Existing Nonconforming Single-Family Dwelling
1. Location relative to control line: A maximum of 5 feet seaward with a second floor
2.5-foot cantilevered deck extending a maximum of 7.5 feet seaward of the control line.
2. Exterior dimensions: Varying from 31.3 to 40.3 feet in the shore-normal direction by 59.4
feet in the shore-parallel direction.
3. Type of foundation: Existing and new reinforced concrete footings.
4. Finished floor elevation (first floor): + 14.4 feet (NGVD).
SPECIAL PERMIT CONDITIONS:
1. No work shall be conducted under this permit until the permittee has received a written
notice to proceed from the Department. Prior to issuance of the notice to proceed, the permittee
shall provide the Department staff with written evidence that a restrictive notice has been
provided in the covenants and restrictions for the subject property and recorded with the Clerk of
the Court of St. Johns County. Prior to filing notice with the Clerk of the Court, the permittee
shall submit a draft of the required notice for review and acceptance by the Department's legal
staff. The restrictive notice shall state the following
1. 1. The rebuilt single-family dwelling was not designed to be elevated above the predicted
breaking wave crest elevation associated with a 100-year storm event or a pile foundation
pursuant to Rule 62B-33.007(3)(c), Florida Administrative Code.
1.2. The Department does not endorse or certify the structural adequacy of the authorized
rebuil dwelling to withstand the anticipated loads from a 100-year storm event specified in Rule
62B 33.007(3), Florida Administrative Code.
1.3. If the rebuilt dwelling is either destroyed or substantially damaged by the water loads
associateA with a 100-year storm event, the replacement or substantially repaired dwelling shall
be totall conforming to the standards of Rule 62B-33.007, Florida Administrative Code, at the
time o application submittal and that a petition for variance from relief of the standards shall not
1.4. These covenants and restrictions shall be enforceable by the Department of Environmenta
2. Prior to the restart of construction, a preconstruction conference shall be held at the site
among thi contractor, the owner or authorized agent, and a staff representative of the Bureau of
Beaches an(Coastal Systems to establish an understanding among the parties as to the items
specified in the special and standard conditions of the permit. The proposed locations of the
structures shall be staked out for the conference.
3. All rubble, debris, and damaged or broken concrete on the site resulting from this
construction shall be removed and relocated to a location landward of the coastal construction
4. All permanent exterior lighting shall be installed and maintained as depicted in the
approved lighting schematic. No additional permanent exterior lighting is authorized.