91-005689 Thomas Hirt vs. Sun East Development Company And Southwest Florida Water Management District Status: Closed Recommended Order on Tuesday, March 24, 1992.

Summary: South West Florida Water Management District permit could issue with limiting condition concerning county zoning. Not a condition precedent to permit validity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS HIRT, )

)

Petitioner, )

)

vs. ) CASE No. 91-5689

)

SUN EAST DEVELOPMENT COMPANY and )

SOUTHWEST FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

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

designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the

above styled case on November 15 and 19, 1991, in Tampa, Florida.

APPEARANCES

For Petitioner: Robert Persante, Esquire

MERKLE & MAGRI

7650 W. Courtney Campbell

Causeway - Suite 1120

Tampa, Florida 33607

For Respondent Andrew R. Reilly, Esquire

Sun East: REILLY & LASSEIGNE

Post Office Box 2039

Haines City, Florida 33845

For Respondent Edward B. Helvenston, Esquire

SWFWMD: Deputy General Counsel

2379 Broad Street

Brooksville, Florida 34609 6899

STATEMENT OF THE ISSUES

Whether the Respondent, Southwest Florida Water Management District, should

grant the applicant, Sun East Development Company, a general construction permit

for the management and storage of surface water pursuant to Permit No. 409376.01

issued July 25, 1991.

PRELIMINARY STATEMENT

On July 25, 1991, the Respondent, Southwest Florida Water Management

District (SWFWMD), approved an application filed by Respondent, Sun East

Development Company (Sun East), for a general construction permit for management

and storage of surface water on Phase I of a Planned Development Unit, PUD 89-

25, in Polk County, Florida.

In a petition filed August 12, 1991, Petitioner, Thomas Hirt (Hirt), timely

requested an administrative hearing to contest the permitting decision.

Petitioner Hirt, who is an adjacent landowner, alleges that Sun East has failed

to comply with state and local law. He also disputes the factual determination

that the project is outside the one hundred year flood plain. Further,

Petitioner contends that all required governmental authorizations were not

obtained prior to permit issuance. He alleges such prior authorizations are

required according to his interpretation of the water management district's

rules. As a result, Petitioner argues the proposed permit should not be allowed

to take effect.

Prior to hearing, all of the parties agreed to the order of presentations

and the burdens of proof based on the model set forth in Florida Department of

Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 779 (Fla. 1st DCA 1981).

During the hearing, the applicant Sun East presented two witnesses and

moved six exhibits into evidence. The agency, SWFWMD, called two witnesses and

filed two separate volumes of applicable agency rules. Official notice has been

taken of these rules. Petitioner testified in his own behalf and had twenty-

eight exhibits marked. Twenty-seven were filed with the hearing officer. All

of the submitted exhibits were accepted. A posthearing document submitted by

Petitioner was accepted without objection as Petitioner's Posthearing Exhibit A.

A transcript was filed with the Division of Administrative Hearings on

January 3, 1992. The opportunity to file proposed recommended orders was

extended to February 13, 1992, to allow the parties to address the three writs

of certiorari entered posthearing that involved the land and the proposed

project at issue in these proceedings. A copy of the Order Granting Petitions

for Certiorari is Petitioner's Posthearing Exhibit A.

The Petitioner waived his opportunity to file proposed findings of fact.

Respondents jointly filed a Proposed Recommended Order. Rulings on the proposed

findings of fact are in the Appendix to the Recommended Order.

FINDINGS OF FACT

A. Parties

1. Respondent Sun East is a corporation who seeks to create a Planned Unit

Development, PUD 89-25, on its property located in Polk County, Florida.

2. Petitioner Hirt owns and resides on property adjacent to the Planned

Unit Development. The only geographical boundary between the proposed project

and Petitioner's property is Watkins Road.

3. Respondent SWFWMD is the water management district with permitting

authority over the 5.36 acres involved in the permit application which is the

subject of these proceedings.

B. Jurisdictional Areas of Controversy

4. Respondent Sun East began the application process for a surface water

management general construction permit from SWFWMD for Phase I of its proposed

development of PUD 89-25 on July 1, 1991. SWFWMD determined the application was

complete on July 24, 1991. The permit which was issued the next day authorized

Respondent Sun East to perform the work outlined in the permit and shown by the

application, approved drawings, plans, and other documents on file with SWFWMD.

5. Petitioner Hirt timely filed a formal administrative complaint in which

he disputed the appropriateness of the permit issued. In support of his

position, Petitioner identified a number of areas of controversy and alleged

that the application and review process was insufficient.

6. Petitioner's allegations in his complaint, which are properly before

the Hearing Officer, are as follows:

a) The approved surface water management

system will cause surface water runoff from

the project to flood Petitioner's property.

One potential cause of such anticipated

flooding is the lack of proper percolation

design in the surface water management

storage areas.

b) Contrary to permit representations, the

property and the retention pond required by

SWFWMD are in the 100 year flood plain.

c) The project is in an environmentally

sensitive area.

d) Respondent Sun East has neither complied

with all local requirements nor obtained all

necessary federal, state, local and special

district authorizations prior to the start

of any construction authorized by the permit.

C. Site Information

7. The parcel of land on which the project will be located lies partially

within the geographical limits of the South Florida Water Management District

(SFWMD). The remaining land lies within the boundaries of the Southwest Florida

Water Management District.

8. Originally, SFWMD gave Respondent Sun East a permit to construct Phase

I of the project, along with conceptual approval for Phase II. The decision by

Sun East to file the application for a surface water management general

construction permit with SFWMD instead of SWFWMD was based upon advice from

personnel at SWFWMD.

9. When it was later determined that SWFWMD would need to review an

application for Phase I in order for the project to be properly permitted,

SWFWMD acted quickly to reduce any potential delay to the project which could be

attributed to its prior incorrect jurisdictional analysis. The agency's efforts

were unrelated to any political connections or family relationships the former

landowner, Jack Watkins, may have with past or current members of the Florida

Legislature or Congress.

10. The grading plan for Phase I of the project coupled with the pre-

development and post-development 25 year storm event analysis, assessed drainage

concerns associated with Phase I of the PUD.

11. Water flow analysis for the site that considered existing conditions

and proposed improvements, demonstrates that the property west of Watkins Road

is not part of the surface water management system for this project. The cross

drain beneath Watkins Road to the south of the proposed project deals with a

different, natural conveyance system to Lake Pierce which is utilized by

property owners such as Petitioner Hirt on the east side of the roadway.

12. The proposed surface water management system for Phase I will not

affect the drainage conveyance system utilized by property owners on the east

side of Watkins Road.

13. The stormwater management collection and conveyance system for Phase I

was designed to convey the stormwater runoff from a 25 year 24-hour rainfall

event, as required. It was not overdesigned to deal with a more intense, longer

rainfall or storm event.

14. Essentially, stormwater treatment and attenuation will be provided by

the two proposed detention ponds A & B, as depicted on the site plan. Runoff

from the first inch of rainfall will be filtered through a proposed side berm

filter system in Pond A.

15. The Polk County Soil Survey and field observations were used to assist

in the weir control structure design. The weir was designed to restrict the

post-development 25 year discharge to the pre-developed 25 year runoff rate.

The project does not rely on percolation to offset post-development changes in

the surface water management system design. As a result, percolation rates are

not a factor to be dealt with in a design review.

D. Flood Plain

16. The 100 year elevation of 79 feet above mean sea level delineates the

100 year flood plain on the property in Phase I. According to the contour map,

the existing Ponds 1 and 2 have depression contours below the flood plain.

17. The water level in Existing Pond 1 is 78.24 feet. The water level in

Existing Pond 2 is 78.14 feet.

18. These ponds are not a major or significant part of an existing, natural

surface water storage system in the area. They are just minor surface

depressions.

19. None of the lots contained in Phase I encroach upon the 100 year flood

plain level.

E. Environmental Concerns

20. The parties stipulated at hearing that SWFWMD rule criteria relating to

wetland and natural resource impacts were met by Sun East's general surface

water management permit application.

F. Local Requirements

21. Prior to making application to SWFWMD for a permit in this case,

Respondent Sun East obtained approval for Phase I of PUD 89-25 from Polk County.

22. Since that time, the zoning approval was quashed by the circuit court.

Respondent Sun East was ordered to obtain the SWFWMD permit before reapplying

for zoning approval.

23. The limiting conditions which are part of the permit issued by SWFWMD

state:

The permittee shall comply with all applicable

local subdivision regulations and other local

requirements. In addition the permittee shall

obtain all necessary Federal, State, local and

special district authorizations prior to the

start of any construction or alteration of works

authorized by this permit.

24. The permit limiting conditions do not require that all other permits be

acquired prior to the application for this permit. Instead, the limiting

conditions advise that all other necessary permits must be acquired prior to

construction or alteration of works begun pursuant to this permit.

25. Petitioner began construction authorized by the permit after SWFWMD

issued its permit approval on July 25, 1991.

26. The Petitions for Certiorari on the final approval for Phase I from

Polk County was already filed when the application for a permit from SWFWMD was

requested by Sun East. The completed application does not reflect that the Polk

County zoning approval was being challenged, and SWFWMD was not made aware of

the possibility that it could be overturned at a later date.

27. The permit issued by SWFWMD was timely challenged by Petitioner, before

the approval became final agency action.

28. Sun East did not comply with the limiting condition in the permit that

requires a permittee to obtain all necessary authorizations prior to

construction as the zoning approval was still unsettled when construction began.

29. Petitioner's challenge to the SWFWMD permit was filed in good faith as

numerous disputes of fact existed regarding this permit prior to resolution in

this Recommended Order. Based upon the information and documentation given to

Petitioner when the permit was issued, it reasonably appeared that his

substantial interests were affected by the proposed drainage plan associated

with the development.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter addressed in this Recommended Order, pursuant to

Section 120.57(1), Florida Statutes.

31. As the applicant in this cause, Respondent Sun East bears the burden

of showing its entitlement to the requested permit by the preponderance of the

evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d

778, 779 (Fla. 1st DCA 1981).

32. A stormwater management system is defined in Section 373.403(10),

Florida Statutes, as follows:

"Stormwater management system" means a

system which is designed and constructed or

implemented to control discharges which are

necessitated by rainfall events, incorporating

methods to collect, convey, store, absorb,

inhibit, treat, use or reuse water to prevent

or reduce flooding, overdrainage, environmental

degradation, and water pollution or otherwise

affect the quantity and quality of discharges

from the system.

33. In this case, the stormwater management system involves permitting in

two different water management districts. Each district was required by law to

permit the construction or alteration of the stormwater management system

pursuant to its own rules to assure that the project will comply with Chapter

373, Florida Statutes and will not be harmful to the water resources of the

particular district. This permitting authority is found in Section 373.413(1),

Florida Statutes, which provides:

... the (district) may require such permits

and impose such reasonable conditions as are

necessary to assure that the construction or

alteration of any stormwater management

system ... will comply with the provisions of

this part and applicable rules promulgated

thereto and will not be harmful to the water

resources of the district.

34. To implement this statutory mandate, SWFWMD has adopted Chapter 40D-4,

Florida Administrative Code, which sets forth the rules relating to Management

and Storage of Surface Waters within this district's boundaries. Pursuant to

statute and the policy set forth in this chapter, SWFWMD is the only district

that can permit the system within its boundaries. The fact that South Florida

Water Management District had to review the design within SWFWMD's boundaries

under its rules to deal with the discharge issues within its borders, did not

eliminate SWFWMD's permitting duties. Contrary to Petitioner's suggestion of

confusion or incompetence in this regard, there were merely separate district

permitting responsibilities.

35. Rule 40D-4.101(2), Florida Administrative Code, requires an applicant

to provide site information which includes a topographic map of the site and

adjacent hydrologically related areas. An overall map of the area showing

existing runoff patterns and size, location, topography and land use of off site

areas which drain through, on to, and from the project must be provided to

support an application. The contents of this application clearly reveal that

Petitioner's land is not part of the surface water management system for this

project. Percolation tests proposed by Petitioner are unnecessary because

design conditions do not rely on percolation as a form of surface water

management. Petitioner's concern that the development of the project will cause

surface water runoff and foreseeable flooding onto his property is unwarranted,

according to applicable civil engineering standards, the calculations and

computer modeling for this project. Reasonable assurances of adequate flood

protection were established as required by Rule 40D-4.301(1)(a), Florida

Administrative Code.

36. Rule 40D-4.101(2)(a)5, Florida Administrative Code, provides:

If the project is in the known floodway of a

stream, or other watercourse, the floodway

should be identified and approximate flooding

elevations determined. The 100 year flood

plain elevations and limits should be

identified, if applicable.

37. The applicant provided this information to SWFWMD. Based upon the

calculations required for the determination of minimum building flood and road

elevations, reasonable assurances were provided in the application to show that

the surface water management system will not diminish the capability of Lake

Pierce to fluctuate through the full range established in Chapter 40D-8, Florida

Administrative Code. Therefore, Petitioner's concern about the flood plain and

minimum flood levels as it relates to the SWFWMD permit is unfounded. It should

be noted, however, that the district's permitting scheme may differ from

regulations promulgated by other governmental bodies in regards to minimum flood

levels. Rule 40D-8.611(4), Florida Administrative Code, states:

Property owners are hereby advised that

compliance with District Rules and

Regulations does not relieve owners of the

responsibility of complying with other

regulations and ordinances required by loca

governing bodies, e.g., as in connection wit

the National Flood Insurance Program.

38. Petitioner's claim that this surface water management system will

increase his taxes in the future due to government spending needed to correct

its flaws is beyond the review criteria involved in these proceedings, as set

forth in the Conditions of Insurance of Permits in Rule 40D-4.301, Florida

Administrative Code. Presumably, the standards and criteria applied by SWFWMD

assure that the design and performance of a surface water management system will

provide adequate flood protection and drainage.

39. SWFWMD is neither required nor authorized to deny or modify its permit

based upon noncompliance with local land use restrictions, because the issuance

of the permit must be based only upon the applicable standards and rules

promulgated by the district. See Council of Lower Keys v. Charley Toppino &

Sons, Inc., 429 So.2d 67, 68 (Fla. 3d DCA 1983). Remedies apart from this

permitting scheme are available should the applicant violate Polk County's land

use restrictions. Taylor v. Cedar Key Sewerage District, 590 So.2d 481 (Fla.

1st DCA 1991).

40. As part of the District's permitting scheme, SWFWMD allows a permittee

to obtain other authorizations for the project after the issuance of this permit

as long as these other authorizations are obtained prior to construction of

works authorized by this permit. This limiting condition is found in Rule 40D-

4.381(2)(c), Florida Administrative Code, which provides:

The permittee shall comply with all applicable

local subdivision regulations and other local

requirements. In addition, the permittee shall

obtain all necessary Federal, State, local and

special district authorizations prior to the

start of any construction or alteration of works

authorized by this permit.

41. During the construction of any stormwater management system, SWFWMD is

required to make periodic inspections at its expense to ensure conformity wth

the approved plans and specifications included in the permit. Section

373.423(1), Florida Statutes. Pursuant to such an inspection process, the

permittee is given written notice of any noncompliance. In addition to such

notification, SWFWMD is required to order immediate compliance with such plans

and specifications. The failure to act in accordance with the order shall

result in the initiation of revocation proceedings against the permit. Section

373.423(2), Florida Statutes, Rule 40D-4.461, Florida Administrative Code.

42. The facts adduced at hearing reveal that construction of the surface

water management system was begun prior to the County's authorization becoming

final. As a result, Sun East is not in compliance with the SWFWMD permit's

limiting condition that requires such authorization prior to the construction

start.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. That SWFWMD issue the general construction permit for the surface water

management system for Phase I, within the limits indicated in the intent to

issue, subject to conditions contained therein.

2. That SWFWMD initiate an inspection of the stormwater management system

at its expense to ensure conformity with the approved plans and specifications.

3. That appropriate action be taken under Chapter 373, Florida Statutes,

to prevent the continued violation of the limiting condition in the permit

relating to construction starts.

RECOMMENDED this 24th day of March, 1992, in Tallahassee, Leon County,

Florida.

___________________________________

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the Division

of Administrative Hearings this 24th

day of March, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5689

Joint Proposed Findings of Fact filed by Respondents are addressed as

follows:

1. Accepted. See HO #3.

2. Accepted. See HO #3.

3. Accepted. See HO #2.

4. Accepted. See HO #4.

5. Accepted. See HO #4.

6. Accepted.

7. Accepted.

8. Accepted. See HO #20.

9. Accepted.

10. Accepted.

11. Accepted.

12. Accepted. See HO #19.

13. Accepted. See HO #19.

14. Rejected. Irrelevant.

15. Rejected. Irrelevant.

16. Rejected. Irrelevant.

17. Rejected. Irrelevant.

18. Accepted. See HO #25.

19. Accepted.

20. Accepted.

21. Accepted.

22. Rejected. Irrelevant

23. Rejected. Contrary to fact. See HO #28.

COPIES FURNISHED:

ROBERT PERSANTE ESQ

MERKLE & MAGRI

7650 W COURTNEY CAMPBELL

CAUSEWAY - STE 1120

TAMPA FL 33607

ANDREW R REILLY ESQ

REILLY & LASSEIGNE

PO BOX 2039

HAINES CITY FL 33845

EDWARD B HELVENSTON ESQ

DEPUTY GENERAL COUNSEL

SOUTHWEST FL WATER MANAGEMENT DISTRICT

2379 BROAD ST

BROOKSVILLE FL 34609 6899

PETER G HUBBELL/EXECUTIVE DIRECTOR

SOUTHWEST FL WATER MANAGEMENT DISTRICT

2379 BROAD ST

BROOKSVILLE FL 34609 6899

CAROL BROWNER/SECRETARY

DEPT OF ENVIRONMENTAL REGULATION

TWIN TOWERS OFFICE BLDG

2600 BLAIRSTONE RD

TALLAHASSEE FL 32399 2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.