10-000635 Spots, Inc. vs. South Florida Water Management District And Daniel Borislow, Llc Status: Closed Recommended Order on Tuesday, August 10, 2010.

Summary: Applicant did not prove entitlement to after-the-fact permit because of flooding and floodplain compensation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SPOTS, INC., )

)

Petitioner, )

)

vs. ) Case No. 10-0635

)

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT AND DANIEL BORISLOW, )

LLC, )

)

Respondents. )

)

RECOMMENDED ORDER

On June 9, 2010, a hearing was held in this case in West

Palm Beach before J. Lawrence Johnston, Administrative Law

Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Joel T. Daves, Esquire

Post Office Box 3032

West Palm Beach, Florida 33402-3032

For Respondent South Florida Water Management District:

Douglas H. MacLaughlin, Sr., Esquire

South Florida Water Management District

3301 Gun Club Road, Mail Stop Code 1410

West Palm Beach, Florida 33406-3007

For Respondent Daniel Borislow, LLC:

Daniel Borislow, pro se

1045 South Ocean Boulevard

Palm Beach, Florida 33480-4932

STATEMENT OF THE ISSUE

The issue in this case is whether the South Florida Water

Management District (SFWMD) should grant the application of

Daniel Borislow, LLC, for an after-the-fact Environmental

Resource Permit (ERP) and issue ERP 50-09272-P.

PRELIMINARY STATEMENT

SFWMD cited Daniel Borislow, LLC (Borislow), for installing

a surface water management system without the required ERP near

the corner of Congress Avenue and Summit Boulevard in West Palm

Beach. To resolve the enforcement action, Borislow agreed to

apply for an after-the-fact ERP. Eventually, SFWMD noticed its

intent to grant the application and issue ERP 50-09272-P.

Mark Rowan challenged proposed ERP 50-09272-P on behalf of the

adjoining property owner under Sections 120.569 and 120.57(1),

Florida Statutes. 1 SFWMD referred the matter to DOAH for a

hearing. Spots, Inc. (Spots), the owner of adjoining property,

was substituted for Rowan as the proper Petitioner.

At the final hearing, Borislow called two witnesses

(Daniel Borislow and Robert Rennebaum, P.E., an expert in civil

engineering) and had Applicant's Exhibits 1-4 admitted in

evidence. SFWMD called three expert witnesses

(Anthony Waterhouse, P.E., an expert in civil engineering, and

John Meyer and Robert Hopper, experts in wetland delineations,

impacts, and mitigation) and had District Exhibits 1, 2, 4, 8,

9, and 10 admitted in evidence. Petitioner called five

witnesses (Borislow, Bill Ruch, Rolando Gonzalez,

Steve Hamilton, and Brian LaMotte, P.E., an expert in civil

engineering) and had Petitioner's Exhibits 1-10 admitted in

evidence.

A Transcript of the final hearing was filed on July 8,

2010. The time to file proposed recommended orders (PROs) was

extended by agreement of the parties to July 30, 2010. Spots'

PRO was filed on July 19, 2010, and SFWMD's PRO was filed on the

due date. Borislow did not file a PRO. The PROs have been

considered.

FINDINGS OF FACT

1. In 2007, Borislow bought 6.2 acres of land near the

corner of Congress Avenue and Summit Boulevard in West Palm

Beach. Borislow proceeded to create a soccer field on the

property. The project required the addition of fill, the

grading and leveling of the field and a shellrock

driveway/parking area, and the installation of sod, an

irrigation system, an exfiltration trench for water quality

treatment, and lighting.

2. Later in 2007, Borislow's activities came to the

attention of SFWMD, which cited Borislow for conducting

activities requiring an ERP without applying for and obtaining

one.

3. To resolve the enforcement action, Borislow agreed to

apply for an after-the-fact ERP. Initially, SFWMD estimated

primarily from aerial photography that 0.71 acres of wetlands

were filled and impacted. During the permitting process,

SFWMD's estimate of direct wetland impacts was reduced to 0.50

acres, and the mitigation required for direct and secondary 2

wetland impacts was determined using the Wetland Rapid

Assessment Procedure (WRAP). 3 It was determined that Borislow's

purchase of 0.2 of a freshwater herbaceous wetland credit in the

Loxahatchee Mitigation Bank would offset the project's wetland

impacts. SFWMD staff determined that all ERP criteria were met. 4

4. Spots stipulated that there are no water quality

issues, that no wetland-dependent endangered or threatened

species of special concern have been observed at or in the area

of the project site, and that the potential use of the site by

such species is minimal. 5 Spots contends: SFWMD underestimated

the extent of impacted wetlands (and, therefore, the amount of

mitigation did not offset the wetland impacts); reasonable

assurance was not given that the project will not flood the

Spots property to the north, in violation of permitting criteria

in Florida Administrative Code 6 Chapter 40E-4 and SFWMD's Basis

of Review for ERPs (BOR); and reasonable assurance was not given

that water storage and conveyance capabilities would not be

adversely impacted, in violation of the permitting criteria in

Rule Chapter 40E-4 and the C-51 basin compensating water storage

requirements of Rule Chapter 40E-41, Part III.

5. In normal permitting, existing wetlands are delineated

in accordance with Rule Chapter 62-340. In this after-the-fact

permit application, former wetlands had to be estimated. Spots

reasonably contends that Borislow should not benefit from having

filled wetlands without an ERP. But the evidence proved that

the former wetlands on the Borislow property were properly

estimated. Contrary to the contention of Spots, the wetlands

were not estimated on the basis of a single aerial photograph.

There were numerous aerial photographs over several years, which

the experts could interpret and use to make a reasonable

estimate of the extent of the former wetlands on the site.

6. Ironically, while criticizing SFWMD's alleged reliance

on a single aerial photograph to determine the extent of the

former wetlands, Spots relied on a single aerial photograph to

claim that the former wetlands on the Borislow property were

deep and larger than 0.5. acres. The photograph appeared to

show standing water only on the Borislow property, but it is

possible that standing water on the Spots property was obscured

by vegetation. In addition, it is impossible to determine the

depth of the water from the aerial photograph, and there was no

evidence as to the rainfall preceding the aerial photograph.

7. Spots provided no other evidence to support its claim

that more mitigation is needed to offset the wetland impacts.

8. On the issue of flooding the Spots property, the

evidence was clear that, contrary to the drawings in the ERP,

the highest elevations in the northwest corner of the Borislow

property are several feet south of the Borislow/Spots property

line, 7 and several feet higher than the elevation at the property

line, 8 causing surface water to flow down this slope from the

Borislow property onto the Spots property. The evidence proved

that no such "back-flow" existed in that location before the

project. This "back-flow" can be prevented from crossing the

property line by placing a swale or railroad tie or some other

similar vertical retaining wall near or on the property line.

Borislow has agreed to an additional ERP condition that this be

done.

9. The Borislow property is in sub-basin 30 of the C-51

basin. Spots and its engineering expert criticized the

engineering calculations used by the experts for Borislow and

SFWMD to provide reasonable assurance that the project did not

result in a net decrease in water storage capacity in the basin.

Spots contended that the calculations incorporated pre-

development elevations taken from a 2005 aerial photograph.

However, the more persuasive evidence was that the elevations

used in the calculations actually came from survey information

on surrounding properties, including the Spots property and

Summit Boulevard, plus the control elevation in nearby Lake

Worth Drainage District L-5 Canal. Elevations for the former

wetlands on the Borislow property were assumed to be 10 feet

NGVD 9 based on the actual elevations of the existing wetlands on

the Spots property. The testimony of the experts for Borislow

and SFWMD as to the source of the elevations used in the

calculations is accepted.

10. The engineering calculations developed by Borislow's

expert and accepted by SFWMD indicated a net increase in water

storage capacity as a result of grading and leveling the

property. 10 The calculations compared pre-development and post-

development storage capacity between the water table 11 and the

100-year storm elevation, which was calculated to be 14.1 feet

NGVD. The evidence did not adequately explain how grading and

leveling the Borislow property would increase water storage; it

would seem that no change in water storage would result.

11. The engineering calculations assumed that no fill was

deposited on the property. However, the evidence was that 150

to 300 truckloads of fill, each with 17 to 18 cubic yards, for a

total of 2,625 to 5,250 cubic yards, were delivered to and

placed on the property. If 300 truckloads were used, this would

represent as much as an acre-foot of fill. 12 Although the fill

would have some water storage capacity, adding that much fill to

the property logically would result in a net decrease in water

storage capacity in the C-51 basin. This loss was not

quantified, or compensated. 13

12. Borislow testified that the fill was used to construct

a 13-foot high, 330-foot long, 30-foot wide berm along the

western perimeter of the property and another large berm along

the northern and southern perimeters of the soccer field. 14 But

other evidence does not support Borislow's testimony. According

to the drawings in the ERP, there are a total of 370 feet of

berms, which are required to be a minimum of six inches high to

maintain elevation 13.4 feet NGVD to contain the peak stage of a

10-year, 3-day design storm. 15 Based on the ground level

photographs in evidence, the berms do not appear to be anywhere

near 13 feet high or 30 feet wide. In any event, the evidence

does not prove that the fill deposited on the property was

higher than 14.1 feet NGVD. Regardless of the exact dimension

of the berms, it appears that the fill was deposited in a way

that would result in a net decrease in water storage capacity in

the C-51 basin.

13. SFWMD seems to suggest in its PRO that the fill should

be disregarded because there were no records to confirm the dates

it was delivered, or the amounts delivered, and because it might

have been delivered to an adjacent property. 16 But the burden of

proof was on Borislow. See Conclusion of Law 16, infra . There

was no evidence to prove that Borislow had the fill deposited on

an adjacent property. It is more likely that the fill was

deposited on the Borislow property in large part to fill the

former wetland, which probably was lower than 10 feet NGVD.

14. Spots also charged that Borislow's project essentially

obstructs the previous flow of surface water from the wetlands

on the Spots property into the wetlands on the Borislow

property, such that surface water now backs up on the Spots

property. This appears to be true. Since it appears that the

wetlands on the Borislow property were lower than the wetlands

on the Spots property, grading and leveling would have that

effect; adding fill would exacerbate the effect.

15. Spots also argued that the evidence did not provide

reasonable assurance on the ability of Borislow's system to

recover from a 10-year, three-day storm event, so as to be able

to again retain the surface water runoff from a successive storm

of that magnitude and duration 12 days later. But the

persuasive evidence was to the contrary, primarily due to the

major drainage features in the vicinity--namely, the C-51 and

the L-5 canals.

CONCLUSIONS OF LAW

16. As applicant, Borislow has the burden to prove

entitlement to an after-the-fact ERP. Fla. Dep't of Transp. v.

J.W.C. Co., Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

17. J.W.C. allows the burden of going forward with the

presentation of evidence to shift to a third-party challenger

after when the applicant makes a prima facie case. Id. Spots

argued based on J.W.C. that Borislow's application for an after-

the-fact ERP must be denied because Borislow did not make a

burden-shifting prima facie case during its case-in-chief. But

the burden-shifting allowed by J.W.C. is not a mandatory

"blueprint governing . . . exact procedure." Id. In this case,

it was appropriate to consider the evidence presented in SFWMD's

case-in-chief before determining whether the evidence proved

Borislow's entitlement to an ERP.

18. The ERP criteria applicable in this case are found in

Rule Chapters 40E-4 and 40E-41, Part III, and in the BOR. Only

the criteria in dispute are addressed here.

19. Rule 40E-4.301(1) provides, in pertinent part, that

"an applicant must provide reasonable assurance" that its

project:

(a) Will not cause adverse water quantity

impacts to receiving waters and adjacent

lands;

(b) Will not cause adverse flooding to on-

site or off-site property;

(c) Will not cause adverse impacts to

existing surface water storage and

conveyance capabilities;

(d) Will not adversely impact the value of

functions provided to fish and wildlife and

listed species by wetlands and other surface

waters;

* * *

(f) Will not cause adverse secondary

impacts to the water resources;

* * *

(k) Will comply with any applicable special

basin or geographic area criteria

established in Chapter 40E-41, F.A.C.

20. Rule 40E-41.263(3) adds this ERP criterion for

projects in the C-51 Basin:

No net encroachment into the floodplain

shall be allowed. Any water storage volume

removed from the floodplain must be

accommodated by an equal volume of open

storage compensation. Water storage volume

shall be computed by utilizing Figure 41-9.

For the purposes of this part, the minimum

volume of water which must be accommodated

on site shall be that quantity equal to the

volume stored below the level shown on

Figure 41-9 and above the existing grades.

Compensation for any reduction in soil

storage also shall be accommodated on site.

21. Reasonable assurance has been given that the project's

wetland impacts have been mitigated. Reasonable assurance also

was given that the Borislow project will not discharge offsite

in a 10-year, three-day storm event and will recover from such a

storm event within 12 days, as required by BOR Section 6.9.

However, reasonable assurance was not given that the project, as

constructed, will not flood the Spots property (by surface water

back-flow from the Borislow property and by blocking the

previous flow of surface water from the Spots property to the

Borislow property), or that C-51 Basin water storage loss has

been compensated. Borislow has agreed to a condition to address

the back-flow, but that condition does not address or meet the

other reasons why Rules 40E-4.301(1)(a)-(c) and (k) and 40E-

41.263(3) are not met. The record evidence would not support

findings as to what additional ERP conditions might be imposed

to meet ERP criteria.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that SFWMD deny Borislow's after-the-fact ERP.

DONE AND ENTERED this 10th day of August, 2010, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of August, 2010.

ENDNOTES

1/ All statutory references are to the 2009 codification of the

Florida Statutes.

2/ The secondary impacts were to a narrow fringe of wetlands on

the Spots property. Secondary wetland impacts usually are

mitigated by use of buffers, but these impacts are immediately

adjacent to the direct impacts to the former wetlands on the

Borislow property.

3/ No evidence was presented as to why WRAP was used instead of

the Uniform Mitigation Assessment Methodology (UMAM) found in

Florida Administrative Code Rule Chapter 62-345.

4/ The Loxahatchee Mitigation Bank and the Borislow property

are in the same drainage basin, so there is no question of

cumulative impacts under Rule 40E-4.302(1)(b) and Basis of

Review Section 4.2.8.

5/ In the Joint Prehearing Stipulation, Spots raised an

additional issue as to the adequacy of the penalty imposed by

SFWMD for Borislow's not getting an ERP before undertaking

project, but this issue was dropped. Spots' PRO appears to

raise yet another issue, as to compliance with the proposed

ERP's prohibition against converting from the construction phase

to the operation phase until as-built certifications are

submitted and accepted by SFWMD, but this issue was not raised

previously and is untimely. In addition, this prohibition is

standard ERP condition language that is not applicable to an

after-the-fact ERP.

6/ All rule references are to the version of the Florida

Administrative Code in effect at the time of the hearing.

7/ The strip of "back-slope" is between approximately 5 or 6

feet and 10-12 feet wide, and between 100 and 220 feet long.

8/ The difference in elevation between those two points is

between approximately 2-4 feet and 5 feet.

9/ NGVD stands for the National Geodetic Vertical Datum of

1929.

10/ These calculations appropriately did not rely on storage

volume from exfiltration trenches Borislow had installed for

water quality treatment since there was no evidence that soil

excavated from the trenches was not deposited on the property.

11/ The water table was assumed to be 8.5 feet NGVD, based

primarily on the control elevation in the nearby L-5 canal.

12/ 5,250 cubic yards equals 141,750 cubic feet, and an acre is

143,750 square feet.

13/ It was not proven that soil excavated for the trenches was

removed from the site or that the exfiltration trenches provided

any compensation for water storage.

14/ Fill piled above the 100-year storm elevation of 14.1 feet

NGVD would not decrease water storage.

15/ In its PRO, SFWMD does not assert the existence of the

berms described by Borislow but only states that, if they

existed, they were not part of the ERP.

16/ SFWMD states in its PRO: "If such berms exist but were

placed on an adjacent property without compensating storage,

they were constructed without the appropriate permits from the

District."

COPIES FURNISHED :

Carol Ann Wehle, Executive Director

South Florida Water Management District

3301 Gun Club Road, Mail Stop Code 1410

West Palm Beach, Florida 33406-3007

Douglas H. MacLaughlin, Sr., Esquire

South Florida Water Management District

3301 Gun Club Road, Mail Stop Code 1410

West Palm Beach, Florida 33406-3007

Joel T. Daves, Esquire

Post Office Box 3032

West Palm Beach, Florida 33402-3032

Daniel Borislow, LLC

1045 South Ocean Boulevard

Palm Beach, Florida 33480-4932

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the final order in this case.