Holmberg v. Department of Natural Resources, s. BN-223

• Decision Date: 02 March 1987
• Docket Number: BN-269,Nos. BN-223,s. BN-223
• Parties: 12 Fla. L. Weekly 659 Richard HOLMBERG, Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Appellee.
• Court: Florida District Court of Appeals

Page 944

503 So.2d 944

12 Fla. L. Weekly 659

Richard HOLMBERG, Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Appellee.

Nos. BN-223, BN-269.

District Court of Appeal of Florida,

First District.

March 2, 1987.

Joseph L. Cardozo of Jones & Cardozo, Sarasota, for appellant.

Andrew S. Grayson, Asst. Gen. Counsel, for appellee.

MILLS, Judge.

Richard Holmberg appeals from two final orders of the Department of Natural Resources (DNR). The first imposes a civil fine against him for willful violation of a coastal construction permit, pursuant to Section 161.054(1), Florida Statutes (1985). The second requires him to bear a portion of the cost of removal of the offending construction project. We reverse.

In November 1984, DNR issued Coastal Construction Permit DBS 83-83 to Arthur Learned, P.E., on behalf of the Captiva Erosion Prevention District (CEPD). The permit described the location of the project, some 650' of beach on Captiva Island, Lee County, Florida, and described the project itself--six sandbag groins, each consisting of two side-by-side rows of 13' x 5' sandbags underlaid with anchored filter fabric, spaced 150' apart and extending a maximum of 75' seaward of the mean high water line.

Twelve special conditions were attached to the permit as well. Special Condition No. 1 provided that all construction was to conform to the description in the permit, with no modification permitted to location, size or structural design without prior agency approval. Special Condition No. 10 stated that, if DNR determined the project to have an adverse effect on the beach or public welfare, or that it was otherwise serving no purpose, the permittee would remove the installation and restore any damage immediately and at the permittee's expense. The permittee also agreed, in a separate document, to construct in accordance with the plans and to adjust, alter or remove any structure as directed by DNR if in its opinion it results in damage, is otherwise undesirable or becomes unnecessary, such removal to be accomplished by the permittee at no cost to the State.

The permittees, Learned and the CEPD, hired Holmberg as the contractor of the project; construction commenced in January 1986. On 3 February 1986, after an on-site inspection of the project, a DNR inspector notified Learned that it was out of compliance with the permit and that it must be either conformed thereto or work ceased. Instead of a single layer of 13' sandbags as authorized, Holmberg had used bags 35' to 50' in length filled with concrete and topped with a second layer of 13' bags, also filled with concrete.

On 4 February, a "warning notice of violation" was issued to CEPD, which held an emergency meeting the same day. Holmberg attended the meeting, at which it was decided to cease work on the project until a scheduled meeting with DNR officials on 7 February. In the meantime, on 5 February, Learned sought an after-the-fact modification of the permit to conform to the project as constructed.

After the 7 February meeting with DNR, CEPD notified Holmberg verbally that the 4 February stop work order would remain in effect pending the modification proceedings; written notification to that effect was given him on 11 February. Also on 11 February, DNR issued a formal notice of permit violation to CEPD, with a copy to Holmberg. However, by letter of 18 February to Learned, Holmberg's counsel informed him that work on the project had been completed.

By letter of 24 February from DNR, Holmberg was notified that "the referenced application for [modification of] a permit ... has been placed on the agenda of the Head of the Department of Natural Resources (Governor and Cabinet)." The date and time of the meeting was provided and Holmberg informed that he could attend if he desired. The letter also informed him that "the Executive Director of the Department has recommended to the Head of the Department denial of the application [and] requiring removal of the unauthorized construction.... Anyone objecting to the staff recommendation may exercise any rights they may have pursuant to Section 120.57 ... within 21 days of the receipt of this notice...." The letter did not mention that a civil fine was sought to be imposed against Holmberg, nor that requiring him to pay for the removal of the project would be discussed.

Holmberg attended the meeting, held on 4 March, and addressed the Governor and Cabinet. He explained that the project deviations had been necessary because of radically changed beach conditions since the time the permit had been issued. DNR representatives expressed their concern about the permanence of a concrete, rather than a sandbag, structure and the possible damage to the beach when and if the concrete began to break up. The meeting adjourned before resolution of the situation for consideration by DNR of possible project monitoring to avoid the anticipated damage. Again, there was no mention of the possibility of fining Holmberg, or of imposing removal costs against him.

On 11 March, Holmberg received a second letter from DNR, stating that "[t]he referenced application for a permit and violation pursuant to Section 161.041 ... was deferred from the ...