08-003530 Danny J. Suggs, Deborah Suggs, Gary D. Suggs, Amber Suggs, Joseph Krueger, And Joann Suggs-Krueger vs. Southwest Florida Water Management District
 Status: Closed
Recommended Order on Thursday, February 19, 2009.


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Summary: Petitioners did not prove either "agricultural" or "agricultural closed system" exemption.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DANNY J. SUGGS, DEBORAH SUGGS, )

14GARY D. SUGGS, AMBER SUGGS, )

20JOSEPH KRUEGER, and JOANN )

25SUGGS-KRUEGER, )

27)

28Petitioners, )

30)

31vs. ) Case No. 08-3530

36)

37SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, )

43)

44)

45Respondent. )

47)

48RECOMMENDED ORDER

50A final administrative hearing was held in this case on

60January 13 and 14, 2009, in Bushnell, Florida, and by telephone

71on January 16, 2009, before J. Lawrence Johnston, Administrative

80Law Judge, Division of Administrative Hearings (DOAH).

87APPEARANCES

88For Petitioners: R. Colt Kirkland, Esquire

94Blanchard, Merriam, Adel & Kirkland, P.A.

100Post Office Box 1869

104Ocala, Florida 34478-1869

107For Respondent: Dominick J. Graziano, Esquire

113Bush, Graziano & Rice, P. A.

119Post Office Box 3423

123Tampa, Florida 33601-3423

126and

127Joseph J. Ward, Esquire

131Southwest Florida Water

134Management District

1362379 Broad Street

139Brooksville, Florida 34604-6899

142STATEMENT OF THE ISSUE

146The issue in this case is whether Petitioners' activities on

156their property in Sumter County, which impacted 38 acres of

166wetlands, are exempt under Section 373.406(2)-(3), Florida

173Statutes, 1 from environmental resource permit (ERP) regulation.

181PRELIMINARY STATEMENT

183This case has a long and tortured history of related

193litigation, at the end of which Petitioners applied for the

203exemptions at issue. The Southwest Florida Water Management

211District (SWFWMD, or District) denied the exemption requests and

220referred the matter to DOAH for a hearing. Based on the

231litigation history, the District moved to relinquish jurisdiction

239based on the law of the case and collateral estoppel. An Order

251Denying Motion to Relinquish Jurisdiction was entered on

259September 12, 2008, 2 and the case proceeded to a final hearing on

272January 13, 2009.

275At the final hearing, the District's Request for Official

284Recognition of 24 documents reflecting part of the litigation

293history was granted. Petitioners called Danny J. Suggs,

301Gary Bethune, P.E. (an agricultural engineer), and Gary D. Suggs.

311Petitioners' Exhibits 1-25 were admitted in evidence. The

319District called Leonard Bartos, Mark Luchte, P.E. (an

327agricultural engineer), Jeffrey Whealton, and Harry Clark Hull.

335SWFWMD Exhibits 1, 3, 11, 12, 16, 18, 19, 20, 24, and 25 were

349admitted in evidence. In rebuttal, Petitioners re-called

356Gary Bethune and called Charles Lynn Miller, P.E. (a civil

366engineer), whose testimony was heard by telephone on January 16,

3762009.

377After presentation of evidence, the District ordered a

385Transcript of the final hearing, and the parties were given ten

396days from the filing of the Transcript in which to file proposed

408recommended orders (PROs). The Transcript was filed (in five

417volumes) on February 4, 2009, making PROs due February 16, 2009.

428The timely PROs have been considered in the preparation of this

439Recommended Order.

441FINDINGS OF FACT

4441. Petitioners hold title to approximately 180 acres of

453agricultural land north of State Road 44 in Sumter County. 3

464Danny J. Suggs and his wife purchased the property in 1997 and

4761998 to start to fulfill his "dream" to build multiple residences

487for himself and his wife and for members of his family on the

500property and to raise cattle and plant a pecan grove and retire

512from his construction and roofing contracting businesses. His

520concept was for the real estate to be held in a family trust.

5332. When Mr. Suggs began to implement his plans, he learned

544that Sumter County required that the building permit for each

554residence be on a separate parcel of at least five acres in size.

567For that reason, he gave his family members five-acre deeds for

578each residence he wanted to build. However, while they had deeds

589for their lots, none of the family paid more than nominal

600consideration, paid for costs of development or construction, or

609had any actual control of Mr. Suggs' plans for the property.

6203. Soon after buying the property, Mr. Suggs bought a few

631head of cattle that were allowed to roam and graze on the

643property. He then began to develop the property. He dug canals,

654ditches, and ponds, and constructed fill roads. As part of his

665surface water management system, Mr. Suggs constructed an earthen

674berm along part of the western perimeter of the property to keep

686water from flowing off his property and into Rutland Swamp and

697Creek, which are waters of the State. Some of Mr. Suggs' land

709alterations were in the 100-year floodplain, including an

717encroachment into land owned by a neighbor. Mr. Suggs testified

727that he has the neighbor's permission, but he has no written

738permission for the encroachment.

7424. Mr. Suggs' activities on the property impacted

750approximately 38 acres of wetlands. In December 2002, the

759District cited Petitioners for dredging and filling wetlands on

768the property without a permit. Extensive litigation ensued,

776during which Petitioners took the position that they were exempt

786under Section 373.406(2)-(3), Florida Statutes--the

"791agricultural" and the "agricultural closed system" exemptions,

798which are set out in Conclusion 18. Petitioners continued

807development and construction activities until enjoined by the

815circuit court in March 2004.

8205. By the time of the court's injunction, Mr. Suggs had

831completed about 80 percent of his planned surface water

840management system for the property. Mr. Suggs intended his

849design to retain all surface on the property in a 50-year, 24-

861hour storm event. However, it was not proven that Mr. Suggs'

872design would have accomplished his intended purpose.

8796. By the time of the court's injunction, Mr. Suggs also

890had built six large residences for family members and dug ditches

901around each residence for drainage. He says he has plans to

912build another eight identical residences for other family

920members.

9217. In May 2004, Petitioners retained Gary Bethune, an

930agricultural engineer, to attempt to design an agricultural

938closed system that would be exempt under Section 373.406(3),

947Florida Statutes, for presentation in a hearing before the state

957circuit court. Mr. Bethune completed his design in June 2004.

9678. Mr. Bethune's design includes an earthen berm to retain

977all surface on the property in a 100-year, 24-hour storm event.

988It also incorporates a spillway to discharge excess water into

998the Rutland Swamp and a covered conveyance structure to allow

1008water from the eastern side of the property to pass through

1019without commingling with surface water on the property and to

1029discharge into Rutland Swamp on the western side of the property.

10409. Mr. Bethune's design will not retain surface water on

1050the property in the event of a storm exceeding the 100-year, 24-

1062hour design storm; it also will not necessarily retain all

1072surface water on the property in the event of multiple storm

1083events not exceeding the 100-year, 24-hour storm event.

109110. Mr. Bethune's design does not address groundwater.

1099Groundwater will flow under the property towards Rutland Swamp

1108and Creek. Surface water on the property, together with

1117contaminants from cattle grazing on the property and fertilizer

1126and pesticides used growing pecan trees, will percolate into the

1136ground, mix with the groundwater, and flow into Rutland Swamp and

1147Creek.

114811. Mr. Bethune's design is not appropriate or reasonable

1157for either a cattle ranch or a pecan grove. It will cause the

1170property to flood during the design 100-year, 24-hour storm and

1180in various combinations of lesser storms. A bona fide cattle

1190ranch is not designed to flood during the wet season. Similarly,

1201a bona fide pecan grove is not designed to flood during the wet

1214season.

121512. During and after Mr. Suggs' development and

1223construction activities, his cattle have continued to roam freely

1232around the property. However, besides the inappropriateness and

1240unreasonableness of Mr. Bethune's design for a cattle ranch,

1249Mr. Suggs' other activities also are inappropriate and

1257unreasonable for a bona fide cattle ranch. The ponds, canals,

1267and ditches he dug are much deeper and have banks much steeper

1279than a bona fide cattle ranch would have. They are so deep and

1292steep that cattle will have great difficulty using them for

1302drinking water. In addition, fill from the extraordinarily deep

1311ponds, canals, and ditches as well as fill Mr. Suggs had

1322delivered from offsite has been spread on the property to a

1333thickness that has reduced the amount of cattle forage on the

1344property, instead of increasing and improving it, as would occur

1354on a bona fide cattle ranch.

136013. Besides the inappropriateness and unreasonableness of

1367Mr. Bethune's design for a pecan grove, there are no pecan

1378growers anywhere near Petitioners' property. Even if feasible to

1387grow pecans for profit on the property, there was no evidence

1398that any alteration of the property would be appropriate or

1408reasonable to plant a pecan grove. Although there is an area of

1420upland where Mr. Suggs says he wants to plant pecan trees, not a

1433single pecan tree has been planted yet (as of the time of the

1446final hearing). In addition, there was no evidence that the land

1457designated for a pecan grove would not be needed for the eight

1469additional residences Mr. Suggs says he plans to build on the

1480property.

148114. The primary purpose of Mr. Suggs' surface water

1490management system is not for agricultural purposes, or incidental

1499to agricultural purposes. Rather, the primary purpose is to

1508impound and obstruct the flow of surface water to facilitate the

1519construction of the residences on his property--the six already

1528built and another eight he plans to build.

153615. Mr. Suggs refers to the residences he has built and

1547plans to build as family residences to be owned by a family

1559trust, the six residences already built are now for sale at an

1571asking price of a million dollars each.

1578CONCLUSIONS OF LAW

158116. It is clear from the facts of this case, and from the

1594related litigation history, that the District has jurisdiction

1602over this matter. It also is clear that DOAH has jurisdiction

1613under Sections 120.569 and 120.57, Florida Statutes.

162017. Petitioners have the burden to prove that their

1629activities are exempt from ERP regulation under Chapter 373, Part

1639IV, Florida Statutes. See Hough v. Menses , 95 So. 2d 410, 412

1651(Fla. 1957); Key vattman , 959 So. 2d 339, 345 (Fla. 1st DCA

16632007).

166418. Section 373.406, Florida Statutes, includes the only

1672two exemptions asserted by Petitioners 4 :

1679(2) Nothing herein, or in any rule,

1686regulation, or order adopted pursuant hereto,

1692shall be construed to affect the right of any

1701person engaged in the occupation of

1707agriculture, silviculture, floriculture, or

1711horticulture to alter the topography of any

1718tract of land for purposes consistent with

1725the practice of such occupation. However,

1731such alteration may not be for the sole or

1740predominant purpose of impounding or

1745obstructing surface waters.

1748(3) Nothing herein, or in any rule,

1755regulation, or order adopted pursuant hereto,

1761shall be construed to be applicable to

1768construction, operation, or maintenance of

1773any agricultural closed system. However,

1778part II of this chapter shall be applicable

1786as to the taking and discharging of water for

1795filling, replenishing, and maintaining the

1800water level in any such agricultural closed

1807system. This subsection shall not be

1813construed to eliminate the necessity to meet

1820generally accepted engineering practices for

1825construction, operation, and maintenance of

1830dams, dikes, or levees.

1834These exemptions are commonly referred to as the "agricultural

1843exemption" and "agricultural closed system exemption,"

1849respectively.

185019. The "agricultural exemption" can be claimed by "a

1859person engaged in the occupation of agriculture, . . . for

1870purposes consistent with the practice of such occupation," so

1879long as the alteration is not "for the sole or predominant

1890purpose of impounding or obstructing surface waters." In this

1899case, none of the Petitioners are engaged in the occupation of

1910agriculture, their activities are not consistent with the

1918practice of agriculture, and their sole or predominant purpose is

1928to impound or obstruct surface waters. For these reasons, the

"1938agricultural exemption" clearly does not apply.

194420. The "agricultural closed system exemption" also clearly

1952does not apply to Petitioners' surface water management system,

1961either as it now exists, as Mr. Suggs originally designed it, or

1973as Mr. Bethune subsequently redesigned it. It is not an

1983agricultural system, and it is not a closed system .

1993RECOMMENDATION

1994Based upon the foregoing Findings of Fact and Conclusions of

2004Law, it is

2007RECOMMENDED that the District enter a final order that

2016Petitioners' activities on their property are not exempt from ERP

2026regulation.

2027DONE AND ENTERED this 19th day of February, 2009, in

2037Tallahassee, Leon County, Florida.

2041J. LAWRENCE JOHNSTON

2044Administrative Law Judge

2047Division of Administrative Hearings

2051The DeSoto Building

20541230 Apalachee Parkway

2057Tallahassee, Florida 32399-3060

2060(850) 488-9675

2062Fax Filing (850) 921-6847

2066www.doah.state.fl.us

2067Filed with the Clerk of the

2073Division of Administrative Hearings

2077this 19th day of February, 2009.

2083ENDNOTES

20841/ Unless otherwise indicated, statutory citations are to the

20932008 Florida Statutes.

20962/ The litigation history is recited in this Order.

21053/ The property is in Section 2, Township 19 South, Range 21

2117East.

21184/ During the course of these proceedings, Petitioners also

2127asserted an exemption under Rule 40D-4.051(7), but they dropped

2136that assertion during and after the final hearing. In any event,

2147the evidence clearly did not prove entitlement to an exemption

2157under the Rule since it only applies to "a single family dwelling

2169unit, duplex, triplex or quadruplex that is not part of a larger

2181common plan of development or sale and does not involve wetlands

2192or other surface waters."

2196COPIES FURNISHED:

2198Joseph J. Ward, Esquire

2202Southwest Florida Water

2205Management District

22072379 Broad Street

2210Brooksville, Florida 34604-6899

2213R. Colt Kirkland, Esquire

2217Blanchard, Merriam, Adel &

2221Kirkland, P.A.

2223Post Office Box 1869

2227Ocala, Florida 34478-1869

2230Dominick J. Graziano, Esquire

2234Bush, Graziano & Rice, P. A.

2240Post Office Box 3423

2244Tampa, Florida 33601-3423

2247David L. Moore, Executive Director

2252Southwest Florida Water

2255Management District

22572379 Broad Street

2260Brooksville, Florida 34604-6899

2263NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2269All parties have the right to submit written exceptions within 15

2280days from the date of this Recommended Order. Any exceptions to

2291this Recommended Order should be filed with the agency that will

2302issue the final order in this case.

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Date
Proceedings
PDF:
Date: 09/21/2009
Proceedings: BY ORDER OF THE COURT: Appellant's notice of voluntary dismissal is approved; Appeal dismissed.
PDF:
Date: 06/29/2009
Proceedings: Letter to R. Krikland from P. Cooper regarding mediation filed.
PDF:
Date: 05/29/2009
Proceedings: Order of Referral to Mediation filed.
PDF:
Date: 05/04/2009
Proceedings: Acknowledgment of New Case filed.
PDF:
Date: 04/29/2009
Proceedings: Notice of Appeal filed.
PDF:
Date: 04/03/2009
Proceedings: Final Order filed.
PDF:
Date: 04/03/2009
Proceedings: Notice of Entry of Final Order filed.
PDF:
Date: 04/01/2009
Proceedings: Agency Final Order
PDF:
Date: 02/19/2009
Proceedings: Recommended Order
PDF:
Date: 02/19/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 02/19/2009
Proceedings: Recommended Order (hearing held January 13-14 and 16, 2009). CASE CLOSED.
PDF:
Date: 02/16/2009
Proceedings: Respondent, Southwest Florida Water Management District`s Proposed Recommended Order filed.
PDF:
Date: 02/16/2009
Proceedings: (Petitioner`s Proposed) Recommended Order filed.
Date: 02/04/2009
Proceedings: Transcript of Trial Proceedings (Volumes 1-5) filed.
PDF:
Date: 02/04/2009
Proceedings: Notice of Filing (Transcripts of Final Hearing, enclosures) filed.
PDF:
Date: 02/03/2009
Proceedings: Notice of Filing (Transcripts of Final Hearing, no enclosures) filed.
PDF:
Date: 01/20/2009
Proceedings: Verified Return of Service filed.
PDF:
Date: 01/20/2009
Proceedings: Letter to Judge Johnston from R. Kirkland enclosing copy of Petitioners` Exhibit No. 24 (exhibit not available for viewing) filed.
Date: 01/16/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 01/14/2009
Proceedings: Return of Service (on C. Miller) filed.
Date: 01/13/2009
Proceedings: CASE STATUS: Hearing Partially Held; continued to January 16, 2009; 9:00 a.m.; Tallahassee, FL.
PDF:
Date: 01/12/2009
Proceedings: Request for Official Recognition filed.
PDF:
Date: 01/08/2009
Proceedings: Notice of Request for Copies filed.
PDF:
Date: 01/06/2009
Proceedings: Prehearing Stipulation filed.
PDF:
Date: 01/05/2009
Proceedings: Notice of Taking Deposition Duces Tecum (of J. Whealton) filed.
PDF:
Date: 01/05/2009
Proceedings: Notice of Taking Deposition Duces Tecum (of M. Luchte) filed.
PDF:
Date: 01/05/2009
Proceedings: Notice of Taking Continued Deposition Duces Tecum (of G. Bethune) filed.
PDF:
Date: 01/05/2009
Proceedings: Notice of Taking Deposition Duces Tecum (of D. Suggs) filed.
PDF:
Date: 12/18/2008
Proceedings: Respondent`s Notice of Serving Unverified Answers to Petitioners` Expert Interrogatories filed.
PDF:
Date: 12/18/2008
Proceedings: Respondent`s Notice of Serving Unverified Answers to Petitioners` Interrogatories filed.
PDF:
Date: 12/16/2008
Proceedings: Notice of Taking Deposition Duces Tecum (of L. Miller) filed.
PDF:
Date: 12/15/2008
Proceedings: Notice of Motion for Order to Shorten Time for Access and Inspection of Real Property filed.
PDF:
Date: 12/12/2008
Proceedings: Respondent`s Witness List filed.
PDF:
Date: 12/09/2008
Proceedings: Petitioners` Witness List filed.
PDF:
Date: 12/08/2008
Proceedings: Request for Inspection Pursuant to Rule 1.350 filed.
PDF:
Date: 12/08/2008
Proceedings: Motion for Order to Shorten Time for Access and Inspection of Real Property filed.
PDF:
Date: 12/05/2008
Proceedings: Notice of Taking Deposition Duces Tecum (of C. Hull) filed.
PDF:
Date: 11/25/2008
Proceedings: Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 11/17/2008
Proceedings: Notice of Service of Interrogatories filed.
PDF:
Date: 11/14/2008
Proceedings: Notice of Service of Answers to Expert Interrogatories to Plaintiff filed.
PDF:
Date: 11/14/2008
Proceedings: Notice of Service of Expert Interrogatories filed.
PDF:
Date: 10/14/2008
Proceedings: Respondent`s Notice of Serving Expert Interrogatories to Petitioners filed.
PDF:
Date: 09/12/2008
Proceedings: Order Denying Motion to Relinquish Jurisdiction.
PDF:
Date: 08/26/2008
Proceedings: Response to Respondent`s Motion to Relinquish Jurisdiction filed.
PDF:
Date: 08/21/2008
Proceedings: Appendix to Respondent`s Motion to Relinquish Jurisdiction filed.
PDF:
Date: 08/21/2008
Proceedings: Notice of Filing Appendix to Respondent`s Motion to Relinquish Jurisdiction filed.
PDF:
Date: 08/21/2008
Proceedings: Respondent`s Motion to Relinquish Jurisdiction filed.
PDF:
Date: 08/07/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/07/2008
Proceedings: Notice of Hearing (hearing set for January 13 through 16, 2009; 9:00 a.m.; Bushnell, FL).
PDF:
Date: 07/30/2008
Proceedings: Response to Initial Order filed.
PDF:
Date: 07/21/2008
Proceedings: Initial Order.
PDF:
Date: 07/21/2008
Proceedings: Petition for Hearing filed.
PDF:
Date: 07/21/2008
Proceedings: Final Agency Action filed.
PDF:
Date: 07/21/2008
Proceedings: Agency referral filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
07/21/2008
Date Assignment:
07/21/2008
Last Docket Entry:
09/21/2009
Location:
Bushnell, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (3):

Related Florida Rule(s) (1):