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