90-004175 Gary L. Gandy vs. Anthony Cerosimo And Southwest Florida Water Management District
 Status: Closed
Recommended Order on Tuesday, February 12, 1991.


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Summary: Evidence sufficient to show that reasonable assurances were given to allow pre-development/post-dev. match for basin run off

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8GARY L. GANDY, )

12)

13Petitioner, )

15)

16vs. ) CASE NO. 90-4175

21)

22ANTHONY CERSOSIMOS and )

26SOUTHWEST FLORIDA WATER )

30MANAGEMENT DISTRICT, )

33)

34Respondent. )

36)

37____________________________)

38RECOMMENDED ORDER

40Pursuant to notice, the Division of Administrative Hearings, by its duly

51designated Hearing Officer, William R. Cave, held a public hearing in the above-

64captioned matter on December 19, 1990, in Bartow, Polk County, Florida.

75APPEARANCES

76For Petitioner: GARY L. GANDY, Pro Se

83OMEGA FARM

85Post Office Omega

88Waverly, Florida 33887

91For Respondents: CERSOSIMO: BEACH A. BROOKS, JR.

98PETERSON, MYERS, CRAIG, CREWS,

102BRANDON & PUTERBAUGH, P.A.

106Post Office Drawer 7608

110Winter Haven, Florida 33883-7608

114S.W.F.M.D.: Catherine D'Andrea and

118Susan Dietrich

120Assistant General Counsel

123Southwest Florida Water Management

127District

1282379 Broad Street (U.S. 41 South)

134Brooksville, Florida 34609-6899

137STATEMENT OF THE ISSUES

141Whether the applicant, Respondent Cersosimo can give reasonable assurances

150that the surface water management system as presently designed by the applicant

162and requested to be permitted will not diminish the capability of Lake Mabel in

176Polk County, Florida, to fluctuate through the full range established for it in

189Chapter 40D-8, Florida Administrative Code, in view of the fact that the floor

202elevation of the retention ponds is one-half foot below the elevation of the

215surface of Lake Mabel for the ten year flood warning level.

226PRELIMINARY STATEMENT

228This case arose by a petition for administrative proceeding wherein the

239Petitioner requested an administrative hearing concerning Respondent, Southwest

247Florida Water Management District's (District) proposed agency action in issuing

257Management of Surface Water Permit Application No. 405733.01.

265Petitioner's request for administrative hearing dated June 5, 1990, raised

275several issues in his objection to the issuance of the permit. However,

287redesign of the Respondent's Plan Unit Development and the amendment to the

299application narrowed the Petitioner's objection to the above-stated issue.

308At the hearing, it was stipulated that the burden was on the applicant, and

322in this regard the applicant presented its case first. The applicant,

333Respondent Cersosimo (Cersosimo) presented the testimony of Ronald S. Burchfield

343and Robert J. Brady. Cersosimo's exhibits 1 and 2 were received into evidence.

356Respondent District presented the testimony of William A. Hartmann.

365Respondent District's exhibits 1 through 4 were received into evidence. The

376Respondents' Joint Composite exhibit 1 was received into evidence.

385Petitioner neither testified on his own behalf nor presented the testimony

396of any other witnesses. Petitioner's exhibit 1 was received into evidence. At

408the close of the hearing, Petitioner requested the late filing of an exhibit

421referred to as a plat. The request was granted but the exhibit was never filed.

436A transcript of the proceeding was filed with the Division of

447Administrative Hearings on January 14, 1991. Respondent Cersosimo timely filed

457his Proposed Findings of Fact and Conclusion of Law which were adopted by the

471Respondent District. Petitioner has not filed any Proposed Findings of Fact and

483Conclusions of Law. A ruling on each Proposed Finding of Fact has been made as

498reflected in an Appendix the Recommended Order.

505FINDINGS OF FACT

508Upon consideration of the oral and documentary evidence adduced at the

519hearing, the following relevant fact are found:

5261. On May 3, 1989, Cersosimo submitted an application for a Management of

539Surface Water Permit to the District.

5452. Subsequent to the submission of this application, the Polk County Board

557of County Commissioner (Commissioners) added an additional requirement to

566Cersosimo's Planned Unit Development (PUD) that there was to be a pre-

578development/post-development match for basin runoff in the event of a twenty-

589four hour one hundred (100) year storm event, i.e. following completion of this

602project (post-development) it will handle the same outflow or flow of storm

614water for the twenty four-hour one hundred-year storm event as in a pre-

627development situation.

6293. Based on the Commissioners' requirement, the design of the PUD was

641amended to provide for the required storage capabilities.

6494. On July 26, 1990, Cersosimo submitted to the District, its amended

661application, Management of Surface Water Permit No. 405733.01 incorporating the

671changes necessitated due to the Commissioners' additional requirement as to

681storm water runoff.

6845. On August 24, 1990, Ramon E. Monreal, P.E., of the Polk County

697Engineering Division, noted in a letter of that same date referring to

709Cersosimo's modification of Retention Pond No. 300 for the project in question

721that "this revision appears to meet the PUD condition by the Board of County

735Commissioners for drainage and compliance with the Surface Water Management

745Ordinance".

7476. The application of July 26, 1990, amends the original application by

759superceding and replacing that application.

7647. In connection with the application for permit, soil borings were taken

776at the site location for the retention ponds in order to establish the elevation

790of the seasonal high water level (SHWL) for that site. The borings indicated an

804elevation for the SHWL of 110 feet to 112 feet above mean sea level (AMSL). The

820District conservationally established the elevation for the SHWL of this

830particular site as 112 feet AMSL.

8368. The floor elevation of the lowest retention pond was established at

848114.00 feet AMSL.

8519. The elevation of the surface of Lake Mabel for the ten year flood

865warning Level is 114.50 feet AMSL as established by Rule 40D-8.624(1)(z),

876Florida Administrative Code.

87910. District policy requires the floor elevation of a dry retention pond

891to be a minimum of one foot above the established elevation of the SHWL of that

907particular site.

90911. Even though the surface elevation of Lake Mabel for the Ten Year Flood

923Warning Level was established as 114.50 feet AMSL, there is insufficient

934evidence to show that there was lateral migration of water from the lake's edge

948to the site of the soil borings such that it was evidenced by a demarcation in

964the soil profile. To the contrary, the evidence shows that there were

976demarcations in the soil profile to establish an elevation for the SHWL for this

990site of 110 feet to 112 feet AMSL.

99812. The designed weir crest in the lower retention pond, Pond No. 300, has

1012an approximate elevation of 118.50 feet AMSL which prevents water from coming

1024over the top into the pond in the event Lake Mabel reaches the ten year flood

1040level warning elevation of 114.50 feet AMSL.

104713. The distance from the present water edge of Lake Mabel to the bottom

1061of Pond No. 300 would be approximately 600 feet, laterally and if the lake

1075reached the ten year flood level warning elevation of 114.50 feet AMSL, the

1088lake's water edge would be approximately 100 feet laterally from the bottom of

1101Pond No. 300.

110414. There was sufficient evidence to show that even if the surface

1116elevation of Lake Mabel reached the ten year flood level warning of 114.50 feet

1130AMSL and the SHWL (ground water level) reached 112 feet AMSL, the retention

1143ponds as presently proposed with a floor elevation of 114.00 feet AMSL would

1156still percolate sufficiently, even though the percolation may be diminished from

1167what it would be under present conditions, so that there would still be a pre-

1182development/post-development match for basin runoff.

118715. Cersosimo can give reasonable assurances that the surface water

1197management system as presently proposed will not diminish the capabilities of

1208Lake Mabel to fluctuate through the full range established for it in Chapter

122140D-8, Florida Administrative Code.

122516. Among others, the following specific conditions in pertinent part will

1236be placed on the permit, if granted:

1243. . . The applicant shall visually monitor

1251the ponds on a monthly basis to ensure that

1260the ponds are dry within 36 hours from the

1269end of the last rainfall event. Should the

1277ponds fail to percolate the required water

1284quality volume per District criteria, a

1290permit modification shall be required. . . .

1298CONCLUSIONS OF LAW

130117. The Division of Administrative Hearings has jurisdiction over the

1311parties to, and the subject matter of, this proceeding pursuant to Section

1323120.57(1), Florida Statutes.

132618. The District has authority to regulate surface water activities within

1337the confines of the District pursuant to Chapter 373, Florida Statutes, and

1349Chapter 40D-8.613, Florida Administrative Code.

135419. Section 40D-8.613, Florida Administrative Code, provides as follows:

1363(1) Flood level warnings are provided for a

1371surface water body as an advisory statement

1378for the public interest. Property owners,

1384public officials and the general public are

1391advised that flooding on a frequency of not

1399less than a ten (10) year recurring interval

1407is expected to occur at the indicated

1414elevation. Flood waters may often rise above

1421the flood warning level.

1425(2) Floor slabs, septic tanks and drain

1432fields, docks, seawalls, and other physical

1438improvements, on land near lakes and other

1445impoundments for which flood warning levels

1451have been established, should be so located

1458and constructed sufficiently above the flood

1464warning level such that their functions will

1471not be impaired by the rising water.

1478The evidence clearly show that the retention ponds' function would not be

1490impaired due to the rising water should the elevation of the surface level of

1504Lake Mabel reach the ten-year flood warning level of 114.50 feet ASML,

1516notwithstanding that the floor elevation of the retention ponds is 114.00 feet

1528AMSL.

152920. Section 40D-4.301(1)(e), Florida Administrative Code, provides that an

1538applicant must give reasonable assurances that the surface water management

1548system will not diminish the capabilities of a lake or other impoundments to

1561fluctuate through the full range established for it in Chapter 40D-8, Florida

1573Administrative Code. The applicant has met his burden in this regard.

158421. While the applicant can give reasonable assurances as to the function

1596of the retention ponds to allow pre-development/post-development match for basin

1606runoff, he cannot give absolute assurances. Therefore, the District has placed

1617specific conditions on the granting of the permit to require modification in the

1630event the system does not function as anticipated.

1638RECOMMENDATION

1639Based upon consideration of the foregoing Findings of Fact and Conclusions

1650of law, it is, recommended that the Southwest Florida Water Management District

1662enter a Final Order granting the application for Management Surface Water Permit

1674No. 405733.01, as proposed by the District.

1681RECOMMENDED this 12th day of February, 1991, in Tallahassee, Florida.

1691_________________________________

1692WILLIAM R. CAVE

1695Hearing Officer

1697Division of Administrative Hearings

1701The DeSoto Building

17041230 Apalachee Parkway

1707Tallahassee, FL 32399-1550

1710(904) 488-9675

1712Filed with the Clerk of the

1718Division of Administrative Hearings

1722this 12th day of February, 1991.

1728APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4175

1735The following constitute my specific rulings pursuant to Section 120.59(2),

1745Florida Statutes, on all of the proposed findings of fact submitted by the

1758parties in this case.

1762The Petitioner did not submit any Proposed Findings of Fact

1772Rulings on Proposed Findings of Fact

1778Submitted by Respondent Cersosimo

17821. - 7. Adopted in Findings of Fact 1-7, respectively.

17928. - 10. Adopted in Findings of Fact 10, 8 and 14, respectively.

180511. Adopted in Findings of Fact 12 and 13.

181412.-13. Adopted in Findings of Fact 13 and 11, respectively.

1824Respondent District adopted Respondent Cersosimo's Proposed Findings of

1832Fact, therefore the same rulings would apply as was applied to Respondent's

1844Cersosimo's Proposed Findings of Fact above.

1850COPIES FURNISHED:

1852Catherine D'Andrea, Esquire

1855Susan Dietrich, Esquire

1858Southwest Florida Water Management

1862District

18632379 Broad Street

1866Brooksville, Florida 34609-6899

1869Gary L. Gandy

1872Omega Farm

1874Post Office Box Omega

1878Waverly, Florida 33887

1881Beach A. Brooks, Jr., Esquire

1886Post Office Drawer 7608

1890Winter Haven, Florida 33883

1894Peter G. Hubbell

1897Executive Director

18992379 Broad Street

1902Brooksville, FL 34609-6899

1905NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

1911ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED

1923ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT

1937WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT

1949WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL

1961ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS

1974TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE

1986FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/26/1991
Proceedings: Agency Final Order
PDF:
Date: 03/26/1991
Proceedings: Recommended Order
PDF:
Date: 02/12/1991
Proceedings: Recommended Order (hearing held , 2013). CASE CLOSED.

Case Information

Judge:
WILLIAM R. CAVE
Date Filed:
07/02/1990
Date Assignment:
07/31/1990
Last Docket Entry:
02/12/1991
Location:
Bartow, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

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