96-003848 Ocala/Silver Springs Hilton, A/K/A Mj Ocala Hotel Associates, Ltd. vs. Ocala Park Centre Main Association, Inc., A/K/A Ocala Park Centre Main, Inc., And St. Johns River Water Management District Status: Closed Recommended Order on Thursday, April 24, 1997.

Summary: Retrofit retention pond permit had to comply with all rules but did not have to guarantee every other pond would comply. "Improper purpose" for purposes of attorney's fees was examined in detail and none was found.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OCALA/SILVER SPRINGS HILTON, )

a/k/a MJ OCALA HOTEL )

ASSOCIATES LIMITED, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3848

)

OCALA PARK CENTRE MAINTENANCE )

ASSOCIATION, INC., a/k/a OCALA )

PARK CENTRE MAIN., INC., and )

ST. JOHNS RIVER WATER MANAGEMENT )

DISTRICT, )

)

Respondents, )

and )

)

LA QUINTA INNS, INC., )

)

Intervenor. )

_________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on

January 29 and 30, 1997 in Ocala, Florida, before Ella Jane P.

Davis, a duly assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner, OCALA/SILVER SPRINGS HILTON a/k/a MJ OCALA

HOTEL ASSOCIATES, LTD.(Hilton):

Lauren E. Merriam, III, Esquire

Blanchard, Merriam, Adel

and Kirkland, P.A.

4 Southeast Broadway

Post Office Box 1869

Ocala, Florida 34478

For Petitioner, OCALA PARK CENTRE MAINTENANCE ASSOCIATION,

INC. a/k/a OCALA PARK CENTRE MAIN., INC. (Ocala Park or

Applicant):

Thomas M. Jenks, Esquire

Pappas, Metcalf & Jenks, P.A.

200 W. Forsyth Street, Suite 1400

Jacksonville, Florida 32202

For Respondent, ST. JOHNS RIVER WATER MANAGEMENT DISTRICT

(District):

Jennifer B. Springfield, Esquire

St. Johns Water Management District

Post Office Box 1429

Palatka, Florida 32178-1429

For Intervenor, LA QUINTA INNS, INC. (La Quinta):

Charles R. Forman, Esquire

Forman, Krehl & Montgomery rd

320 N.W. 3 Avenue

Ocala, Florida 34474

and

Robert J. Karow, Esquire

Post Office Box 140094

Gainesville, Florida 32614-0094

STATEMENT OF THE ISSUE

(1) Do Hilton, Ocala Park and La Quinta have standing

(substantial interest) in these proceedings?

(2) Has Ocala Park demonstrated reasonable assurance of

compliance with the District's requirements for issuance of the

remedial/retrofit stormwater management system permit?

(3) Did Hilton institute these proceedings for an improper

purpose, and if so, may attorney's fees and costs be determined

and/or awarded?

PRELIMINARY STATEMENT

On June 18, 1996, Ocala Park Centre Main., Inc. submitted an

application to the District for a stormwater management permit

authorizing the remediation of the existing "master retention

pond" serving a commercial subdivision known as Parke Centre.

Upon request from District staff, the Applicant submitted

additional information on July 8, 1996. On July 24, 1996, the

District issued a permit authorizing the remediation.

Ocala/Silver Springs Hilton timely filed a petition to

contest the District's issuance of the permit.

The matter was referred to the Division of Administrative

Hearings on August 16, 1996.

Petitioner Ocala/Silver Springs Hilton filed a motion to

amend the petition to the name of the actual landowner, MJ Ocala

Hotel Associates, Ltd., which motion was ultimately granted.

Ocala Park Centre Main., Inc. filed pleadings and other

documents using the name, "Ocala Park Centre Maintenance

Association, Inc." without filing a motion to amend the permit

application or prior pleadings.

Ocala Park Maintenance Association, Inc. filed a motion to

dismiss the petition herein based upon its claim that Hilton's

petition had been filed in the name of a non-existent party.

Hilton responded with a motion to dismiss the permit application

itself, based upon Hilton's assertion that the Applicant's legal

name was originally improperly stated in the permit application.

On November 8, 1996, an Order was entered denying both motions to

dismiss without prejudice, but requiring Hilton and the

Association to each prove-up their respective standing at formal

hearing.

La Quinta Inns, Inc. petitioned to intervene. La Quinta was

granted intervention status by an Order dated November 25, 1996,

but likewise was required to prove-up its standing in the course

of formal hearing.

The style of this cause has been amended to show the several

names of each party.

Official recognition of various items was taken upon the

District's unopposed motion.

On January 17, 1997, Hilton served a Motion for Official

Recognition and a unilateral "Supplemental Prehearing Stipulation

(sic.)," each of which sought to inject into these proceedings

the new issue of the Association's compliance with Chapter 40C-4,

Florida Administrative Code . At formal hearing, Hilton's motion

was denied. Hilton's unilateral supplemental prehearing

statement was treated as a motion to amend the parties' joint

prehearing stipulation and denied, because the issue of

compliance with Chapter 40C-4, Florida Administrative Code was

not applicable to this type of permit, had not been raised in the

original joint prehearing stipulation and otherwise had not been

timely filed. See, Taylor v. Cedar Key Special Water and

Sewerage District and Dept. of Environmental Protection , 590

So.2d 481 (Fla. 1 st DCA 1991); Council of the Lower Keys v.

Toppino & Sons, Inc. , 429 So.2d 67 (Fla. 3 rd DCA 1983); and Rules

60Q-2.015, 60Q-2.016, 6Q-2.020, and 60Q-2.024 Florida

Administrative Code .

At formal hearing, Ocala Park, as the Applicant, presented

the oral testimony of Joe Dobosh, Director of Development for the

Park Centre project; Roy Paskow, Project Manager for the Park

Centre project; William A. Meyer, a principal with the owner of

Hilton; and Vince Dunn, who was accepted as an expert in the

field of stormwater permitting. It offered Applicant's Exhibits

1, 2, 3, 4, 5, 5A, 5B, 6, 7, 8, and 10, all of which were

received in evidence. Applicant's Exhibit 11 was not received in

evidence, but is identical to Hilton's Exhibit 7, which was

received in evidence.

La Quinta also presented the oral testimony of William A.

Meyer and published portions of Hilton's answers to La Quinta's

Request for Admissions.

Hilton presented the oral testimony of George Marek, a

Florida Department of Transportation employee; Joseph C. London,

a licensed civil engineer; Edward P. Wilson, Hilton's facility

manager; Thomas M. Payne, an employee of the city of Ocala; and

William A. Meyer. Hilton offered Hilton's Exhibits 1 through 9

and 10A through 10H, all of which were received into evidence.

The District presented the oral testimony of Greg Harper,

who was accepted as an expert in surface water engineering and

water resource engineering, and of Carla Palmer, who is the chief

engineer in the District's Department of Resource Management.

The District offered Agency's Exhibits 1 through 3, all of which

were received in evidence.

At the conclusion of formal hearing, Ocala Park Centre

Maintenance Association, Inc. made an oral motion for attorney's

fees and costs, pursuant to Section 120.595 Florida Statutes

[1996 Supp.], which became effective October 1, 1996. The issue

of improper purpose was previously included in an affirmative

defense and the joint Prehearing Stipulation. The prior statute

covering improper purpose is Section 120.59(6) Florida Statutes

[1995]. This motion is addressed hereafter in this recommended

order.

The transcript was filed on February 14, 1997. All parties'

proposed findings of fact and conclusions of law have been

considered in the preparation of this recommended order, as have

supplemental citations to the record which were filed in response

to the undersigned's telephoned request to all parties

simultaneously.

FINDINGS OF FACT

The Parties and the Allegation of Improper Purpose:

1. The Ocala Park Centre Maintenance Association, Inc.

exists for the purposes of providing common maintenance and

common services for owners of certain properties located within

the Park Centre subdivision pursuant to the Declaration of

Covenants, Conditions and Restrictions to which those properties

are subject. Park Centre is a platted commercial subdivision

located near the intersection of Interstate 75 and S.R. 200 and

is within the City of Ocala, Florida. The Association's board of

directors is presently controlled by the developer of Park

Centre. The developer is Ocala 202 Joint Venture, which in turn,

is controlled by representatives of "Arvida."

2. Since its formation in 1986, the Association has

operated as a property owners' association. It has collected

assessments from its members and has directed maintenance

activities within Park Centre. The Association owns a leasehold

interest in the master retention pond which is the subject of

these proceedings. Under the lease, as amended, the Association

is the current lessee and Alan E. Greenfield is Trustee of the

current lessor. Due to the Association's rights and obligations

as set forth in the Declaration of Covenants and the master

retention pond lease, the Association was listed (abbreviated as

Ocala Park Centre Main., Inc.) as the Applicant in the original

permit application materials. The Association's legal name is

correctly stated and disclosed by its Articles of Incorporation,

a copy of which was included in the application materials

submitted prior to the District's July 24, 1996 intent to issue

permit.

3. The Association funds the cost of its maintenance

activities and the rent payable under the lease by assessing its

members, of which Hilton is one. The Association has paid rent

due under the lease to the lessor. Pursuant to the Declaration

of Covenants, assessment and lease payments are apportioned among

the members of the Association, based on the relative amount of

square footage within their respective properties. (See also

Findings of Fact 55-60)

4. The master retention pond for which this permit was

intended lies within the jurisdictional boundaries of the

District. The District is a regulatory authority created by the

legislature. It is charged with the responsibility for

administering and enforcing permitting programs for the

management of stormwater. The Association is accordingly subject

to the District's regulatory authority.

5. The Ocala/Silver Springs Hilton hotel occupies Lot 3

within Park Centre and constitutes a hotel-spa complex located

immediately adjacent to the master retention pond parcel. The

Hilton hotel's real property is owned by MJ Ocala Associates,

Ltd., a Florida general partnership. The petition filed in this

case was brought in the name of "Ocala/Silver Springs Hilton".

"Ocala/Silver Springs Hilton" is apparently a trade name used by

MJ Ocala Hotel Associates, Ltd. No evidence was presented that

this trade name has been registered as a "fictitious name" under

Florida law.

6. Mr. William A. Myer, a principal with MJ Ocala

Associates, Ltd. retained and directed counsel to oppose the

permit the District proposed to grant to Ocala Park Maintenance

Association, Inc.

7. Since July 1996, Intervenor La Quinta Inns, Inc. has

been under contract to purchase from Ocala 202 Joint Venture (the

developer) a portion of Lot 2 of Park Centre which directly

adjoins Hilton's property. La Quinta intends to construct a new

hotel on the property that will compete in the marketplace with

Hilton. Lot 2 is also subject to being serviced by the Ocala

Park Maintenance Association's master stormwater retention pond

that is the subject of this proceeding.

8. Prior to the commencement of these proceedings, Hilton

filed another petition challenging the issuance of a different

permit by the District to La Quinta, for construction of a

stormwater treatment facility on Lot 2. Those proceedings have

been settled.

9. However, the sale of Lot 2 from the developer to La

Quinta cannot be closed, and La Quinta cannot proceed with

construction of its new hotel on the property, until the permit

which is the subject of these instant proceedings is finally

approved and issued.

10. Pursuant to the terms of the Declaration of Covenants,

upon the sale of the last lot in Park Centre commercial

subdivision, the developer will assign its revised rights, and

the duties of maintenance of the subdivision, and thus the master

retention pond which is the subject of the instant proceedings,

will pass to the Association members, of whom one is Hilton.

Thereafter, the developer will have no significant financial

interest in the subdivision.

11. The six month delay occasioned by this instant case

has caused Ocala 202 Joint Venture an estimated $100,000 in mixed

"attorney's fees, engineering fees, preparation for hearings, and

lost interest on the income that would have been received on the

purchase price." This is the only record evidence concerning

obligation for, or amount of, attorney's fees and costs incurred

by any entity.

12. Ocala Park and La Quinta have asserted that Hilton has

instituted these instant proceedings solely to prevent or to

significantly delay the closing of the La Quinta transaction and

the construction of La Quinta's new hotel on Lot 2 which would

offer competition as a hotel to Hilton. Ocala Park Maintenance

Association, Inc. has moved for attorney's fees and costs based

upon this allegedly "improper purpose."

Background, The Initial Permit Application Process, and Filing of

the Petition in Opposition:

13. In 1984, the District had required no permit

application for the original construction of the master retention

pond. At that time, it had been represented to the District that

the master retention pond would serve a project of approximately

twenty-four acres. Similarly, in July 1985, a Notice of Intent

to Use (general permit available under Chapter 17-25, Florida

Administrative Code ) had been submitted to the Department of

Environmental Protection. Thereafter, the master retention pond

had been constructed.

14. At all times material, the Park Centre developer,

Ocala 202 Joint Venture, had the authority to exercise control

over the Association by electing all of the members of its board

of directors. As of May 19, 1989, the Association had become the

lessee of the master retention pond. Pursuant to the terms of

the lease and the Declaration of Covenants, the Association had

(and currently has) the right and obligation to maintain the

retention pond. (See also Finding of Fact 58).

15. Sometime prior to the instant 1996 permit application,

the Park Centre developer was notified by the City of Ocala that

the master retention pond could be subject to a notice of

violations and would have to be remediated. Following

discussions of alternative methods of remediation, it was agreed

with the City of Ocala that an exfiltration trench designed to

discharge directly into the underlying limestone formation would

be installed in the bottom of the existing master retention pond.

This proposed remediation, or retrofit, of the existing master

retention pond required a stormwater management permit pursuant

to Chapter 40C-42 Florida Administrative Code from the District,

and the application that is at issue herein followed.

16. In May and October 1995, Hilton had experienced some

flooding of its property. Hilton's then-manager feared Hilton's

electrical room was in danger of flooding. At various times,

Hilton complained to the Florida Department of Transportation and

the City of Ocala about flooding.

17. On June 18, 1996, "Ocala Park Centre Main., Inc."

submitted an application to the District for a stormwater

management permit authorizing the remediation of the existing

"master retention pond" serving the commercial subdivision known

as Parke Centre. Upon request from District staff, the Applicant

submitted a different form application and additional information

on July 8, 1996.

18. On July 18, 1996, Joseph C. London, P.E., submitted to

Hilton a general watershed study which had taken him about six

weeks to complete. He determined that water overflow from the

nearby Chili's Restaurant parcel was going via a storm sewer

system into the master retention area; that the Black Eyed Pea

Restaurant/Star Bar & Grill site also had an overflow system that

went into a storm sewer system and thus went to the master

retention pond area; that there was an interconnection between

the Lowe's site and the water retention pond area; that water

from another site occupied by Barnes & Noble, Pet Smart, and Ruby

Tuesday's Restaurant also flowed into a smaller retention area in

the northerly portion of Lot 2 a/k/a the Park Centre Commons'

Pond a/k/a the Jacoby Pond and ultimately into the master

retention pond area; that Lot 2 was currently unoccupied; that

when the master retention pond area filled to an elevation of

71.3 feet, the water went through an inlet and pipe into a

Department of Transportation retention pond directly south of the

master retention pond area; and that the Hilton property was

experiencing overflow as a result of this combination of

contributing factors.

19. As of July 18, 1996, Mr. London further advised Hilton

that the Park Centre Commons' retention pond had overflowed its

banks and that engineers were remediating it. In fact, that pond

has been issued a notice of violations by the City of Ocala and

the City has required that the Park Centre Commons' pond also be

remediated. (See Findings of Fact 18 and 44-47).

20. District staff concluded, in a July 23, 1996 Technical

Staff Report, that the Applicant's submittals presented on June

18, 1996 and July 8, 1996 provided reasonable assurance of

compliance with the District's objectives for stormwater

management systems. At that time, staff had only reviewed the

application materials in connection with the rules needed to

insure technical compliance. Staff recommended issuing a

standard permit with ERP Stormwater General Conditions 1-19;

Special Conditions 8, 9, and 30; and no "Other Conditions." That

permit was issued July 24, 1996.

21. Ocala/Silver Springs Hilton timely filed its petition

beginning these proceedings on August 9, 1996 to contest the

District's issuance of the permit on July 24, 1996.

22. The petition alleged that overflow from the existing

master retention pond had, in the past, overflowed onto Hilton's

property; that the Applicant had miscalculated the area of

stormwater runoff; that the permit application contained defects,

mistakes, and irregularities, or lacked complete information;

that the District's permit contained procedural mistakes,

defects, and irregularities; and that the proposed remediation

was inadequate to solve existing problems or future problems that

might result from further development in the area.

23. The Applicant's materials submitted prior to the July

24, 1996 permit approval did not address the entire area reported

upon by Mr. London to Hilton as contributing to Hilton's flooding

problem, and they did not acknowledge the connecting feature

between the Lowe's parcel and the water retention area. The

Applicant's plans were not signed and sealed by a registered

engineer, and the corporate and succession documents were

otherwise flawed.

Developments Between August 9, 1996 and January 27, 1997:

24. The August 9, 1996 petition initiated the formal

proceeding process with its inherent discovery and trial

preparation.

25. The Applicant's engineer considered the concerns

expressed in Mr. London's letter and the petition and made

additional calculations which were first available to the parties

on November 13, 1996.

26. The Applicant's Declaration of Covenants also was

amended in November 1996.

27. According to the District's spokesman and expert

witness, additional materials were requested of the Applicant by

the District "in an abundance of caution" and to prepare for

formal hearing. Apparently, that request was for signed and

sealed plans, corporate documentation conforming to District

rules and a site plan with increased parameters and calculations

addressing a ten year, 24 hour storm.

28. A third package of materials in support of the instant

permit application was submitted by the Applicant to the District

on December 16, 1996.

29. The Applicant's December 1996 submittal addressed many

concerns raised in the petition. It added a Schedule C -- Notice

of Receipt on the District's official form and added a quadrangle

map and aerial photograph. The Schedule C -- Notice of Receipt

was added to correct an oversight in the original application,

and the quadrangle map and aerial photograph were voluntarily

provided, although the District had never inquired as to the

location of the project. The plans depicting the drainage area

served by the master retention pond were modified to include a

larger area than before, including the Chili's Restaurant site

which had concerned Hilton's engineer. The plans and

calculations previously submitted in June and July were

resubmitted, this time with the Applicant's professional

engineer's signature and seal. The Applicant's prior submittals

had not been signed and sealed as required by rule. Additional

calculations regarding the impact of neighboring stormwater

management systems were included. The additional calculations

demonstrated the minimal impact of the nearby Lowe's and Park

Centre Commons' stormwater management systems on the master

retention pond and showed that for the required mean annual, 24

hour storm event, there would be no discharge from the master

retention pond, even taking overflow from the nearby Lowe's and

Park Centre Commons' systems into account.

30. The Applicant's December 1996 submittal also added a

well location survey and included proposed amendments to the

Association's operation and maintenance documents. The well

inventory provided the District with an additional copy, since

the inventory for the original application materials had been

obtained from the District's files for a prior permit on

neighboring property. This addressed karst formation and

sinkhole concerns raised by Hilton.

31. The Applicant's December 1996 submittal also addressed

Hilton's corporate concerns. The proposed amendments to the

Association's ownership and maintenance documents added the

District's current suggested operation and maintenance language.

The final documents establishing Ocala Park Maintenance

Association, Inc. as the operations and maintenance entity were

submitted to the District July 8, 1996, but that package had

lacked several provisions which the District's rules now require.

Specifically, the Applicant's December 1996 submittal contained

required language providing for operation and maintenance in the

event of dissolution of the Association, language authorizing the

District to enforce the provisions related to the stormwater

system or language requiring prior District approval to modify

the declaration so as to affect the stormwater system. This is

reasonable since the original documents had been executed and

recorded at a time when the master retention pond was exempt from

the District's permitting requirements.

32. The technical and scientific design for the proposed

trench work was not changed between the June 18, 1996 and

December 16, 1996 submittals. However, the drainage calculations

submitted by the Applicant in December 1996 cover the larger area

considered then. The Applicant's December 1996 calculations were

accurate with the exception that the elevation of discharge

structure was assumed to be 71.8 feet rather than 71.3 feet. The

District either missed this error or considered it a minor flaw,

insignificant for purposes of its January 27, 1997 Technical

Staff Report, described below.

33. By a new Technical Staff Report issued on January 27,

1997, only two days before formal hearing, District staff

advocated that two new "Other Conditions" be added to the permit,

if issued.

34. The District's new proposed "Other Conditions" read as

follows:

1. The proposed stormwater management system must

be constructed and operated in accordance with plans

received by the District on December 18, 1996.

2. Within 45 days of permit issuance, the permittee

shall submit to the District final operation and

maintenance entity documents, filed or recorded as

appropriate, and in the form reviewed by the District.

35. Although the Applicant's December 16, 1996 plans were

technically no different than earlier ones, they were now

professionally signed and sealed. Its corporate documents were

likewise conformed to District Rule Requirements. Therefore, it

is found that the two new "Other Conditions" would not have been

required by the District but for the initiation of this

administrative proceeding by Hilton's petition herein and by

Hilton's participation in this proceeding up through January 27,

1997.

36. After January 27, 1997, the following situation

continued to exist: The general site condition was limerock of

varying levels subject to karst formations and sinkholes. The

Applicant still relied on two soil borings and Hilton's engineer

was used to submitting more. A minor flaw existed in the

Applicant's modeling calculations (see Findings of Fact 32 and

42), and those calculations were based on the entire trench

reaching limestone. The Park Centre Commons' pond had not been

remediated, and the Applicant's calculations treated it as

already functioning properly. Hilton continued to be concerned

about operation and maintenance responsibility. Formal hearing

on January 29-30, 1997 focused on these issues.

Formal Hearing January 29-30, 1997:

37. The Applicant's December 16, 1996 amendment to its

application and the January 27, 1997 Technical Staff Report were

admitted in evidence at formal hearing and were considered by the

expert witnesses who testified.

38. District staff continued to support the granting of

the permit with the addition of only the two new "Other

Conditions."

39. The proposed trench will be 12 feet deep, 5 feet wide,

and 178 feet in length. For maximum efficiency, the trench is

designed to make contact for its entire length with the limestone

formation underlying the master retention pond, but at formal

hearing the Applicant showed that it is not necessary for the

trench's entire length to contact limestone in order to function

properly. Because the limerock in this area is not a flat, level

surface, it remains possible that some portions of the trench, as

designed, will not contact limestone. However, the Applicant

proved that, even applying a very conservative safety factor of

two, only 25 feet of the trench needs to actually be in direct

contact with the limestone for the trench to function as

intended. Moreover, even Hilton's engineer conceded that if

sand, rather than clay, is encountered, the percolation factor

will be better than if limerock is encountered as predicted.

Sinkhole problems have been accounted-for and minimized.

40. At the bottom of the exfiltration trench, a geogrid

fabric will be installed. Above this, approximately nine feet of

FDOT No. 57 stone will be installed and wrapped with filter

fabric. Above this, a three foot layer of filter sand will be

installed. Approximately eight inches of the sand will be

mounded above the bottom of the retention pond. The trench will

be lined on each side with a three foot concrete pad to

facilitate maintenance.

41. Moreover, during construction, the Association will

employ a full-time geotechnical consultant to help ensure that

the exfiltration trench is installed properly. The Association's

present plan is to continue excavation until sufficient contact

with the underlying limestone is achieved. At formal hearing,

the Applicant established that there is a reasonable degree of

engineering certainty that limestone will be encountered at a

depth of approximately 12 feet, which is the depth contemplated

by the remediation plans. Evidence to the contrary presented by

Hilton is speculative, at best. All witnesses ultimately

conceded that the only way to know with absolute certainty is to

dig. The greater weight of the evidence is that Hilton's

suggestion of more soil borings or an additional "Other

Condition" mandating the presence on-site of an engineer or

geotechnical consultant is not cost-efficient or necessary.

42. The Applicant demonstrated that once the proposed

remediation is completed, the master retention pond will retain,

without any discharge, a mean annual, 24 hour storm event.

During such an event, the level of water within the master

retention pond will reach an elevation of 64.59 feet. The

existing outfall structure in the master retention pond is

located at elevation 71.3 feet. Therefore, there will be

approximately seven feet of additional storage capacity within

the master retention pond following a mean annual, 24 hour storm

event. The issue of elevation at 71.3 versus 71.8 feet was

litigated at formal hearing. Upon the evidence adduced at formal

hearing, it is found that this minor flaw, in fact, did not

substantially affect the Applicant's modeling data.

43. Petitioner showed that there is another retention pond

serving the Lowe's property in the same vicinity, and that it is

connected by a pipe to the storm sewer system that drains into

the master retention pond and that a portion of the stormwater

from Lowe's parking lot bypasses Lowe's storm sewer system and

enters the storm sewer system served by the master retention pond

which is the subject of this proceeding.

44. Petitioner showed that the Park Centre Commons'

retention pond is currently subject to a notice of violations

issued by the City of Ocala and is in the process of being

remediated. The latest date demonstrated at formal hearing

herein for completion of the Park Centre Commons' retention

pond's remediation as represented to the City of Ocala, is March

31, 1997. In the past, when the Park Centre Commons' retention

pond has overflowed its banks, stormwater has flowed into the

street and into the storm sewer system served by the master

retention pond which is the subject of the instant proceeding.

(See Findings of Fact 18-19)

45. However, the Applicant demonstrated that, assuming

that the Lowe's and Park Centre Commons' retention ponds function

in compliance with the District's rules and the requirements of

the City of Ocala, but taking into account the impact of the

elevation of the connecting pipe and the bypassing of stormwater

within Lowe's parking lot into the master retention system, the

master retention pond which is the subject of this proceeding,

will, once remediated, retain stormwater from a mean annual, 24

hour storm without any discharge.

46. Finally, the Applicant proved it had ultimately

correctly calculated the size of the area to be served by the

proposed retrofit of the master retention pond to be 14.85 acres.

This 14.85 acres now includes the Hilton, Black Eyed Peas/Star,

and Chili's Restaurant properties, the common areas within Ocala

Park Centre subdivision and the undeveloped parcel covered by the

La Quinta contract for sale.

47. The Applicant does not, and does not need to, include

the bulk of the Lowe's property, Park Centre Commons property or

any of the State right-of-way for Interstate 75, because each of

these properties is served by its own separate stormwater

management system, over which the Applicant has no control and

which it has no duty to accommodate. The District does not

require that stormwater management systems be designed to

accommodate neighboring stormwater management systems that do not

comply with the District's rules. The District's position is

that the Association, like all other permit Applicants, is

entitled to assume that neighboring systems will comply with all

applicable requirements and that the District and the City of

Ocala each has enforcement procedures in place if the neighboring

systems do not comply. That position is both reasonable and in

accord with the applicable statute and rules.

48. Ed Wilson, testifying on behalf of Hilton, described

incidents of flooding at Hilton's property that occurred in 1995.

He identified October 1995 photographs of flooding on a portion

of the Hilton property located south of the hotel. However, by

its response to Requests for Admissions served by La Quinta,

Hilton had already admitted that overflow from the master water

retention pond does not contribute to flooding on the south

portion of its property. Ed Wilson also described prior

incidents of flooding within the parking lot and tennis courts

serving Hilton's hotel. A single photograph was produced showing

several inches of water standing over a stormwater grate that is

located in the vicinity of Hilton's tennis courts. Contribution

to this problem by the master retention pond, if any, could only

be improved by its remediation. (See Findings of Fact 53-54)

49. William Meyer, testifying on behalf of Hilton, offered

his purely personal opinion that the Applicant should be required

to give reasonable assurance of storage capacity for more than a

mean annual, 24 hour storm event. He conceded his personal

opinion was not based on any statute, rule, or expert advice he

had received.

50. A mean annual, 24 hour storm event equates to 4.3

inches of rain over a 24 hour period. It is the only volume and

recovery requirement contained in the applicable rules. The

Applicant demonstrated its remediation will accommodate a mean

annual 24 hour storm event or a ten year 24 hour storm event.

51. Hilton presented no evidence that the remediated

master retention pond will back up into Hilton's parking lot or

tennis courts during a mean annual, 24 hour storm event or even a

ten year 24 hour storm event. Hilton has neither made, nor has

it caused to be made, any calculations of whether such a backup

would occur during such storm events.

52. Another "concern" of Hilton, as expressed by Mr. Myer

at formal hearing, seems to be that once the Association is

controlled by its members, rather by than the developer, the

Association may be unable to properly operate and maintain the

retention pond as modified by this proposed permit. This concern

is two-fold: the technical operation-maintenance issue and a

legal responsibility/financial capability issue.

53. Mr. Meyer's technical concern is based upon the

inadequacy of the pond as originally constructed and such

flooding as has occurred to date under the developer's

administration. At formal hearing, Hilton presented evidence of

prior flooding events, but provided no evidence to support its

claim that the proposed remediation will adversely affect

flooding conditions on its property. In fact, through its expert

witness, Mr. London, Hilton admitted that the Applicant's

proposed remediation will, in fact, alleviate the potential for

flooding on its property. (See Findings of Fact 39 and 48-51)

54. Hilton presented no expert testimony or other evidence

to support its stated concern that the proposed remediation of

the master retention pond will not reduce the potential for

flooding within Hilton's parking lot and tennis court. Quite to

the contrary, Hilton's engineer, Joseph London, testified that he

believes that if the technical plan remediation works

successfully, the problem with overflow onto the Hilton's

property will be cured. (See Findings of Fact 39 and 48-51)

55. Hilton's legal responsibility/financial capability

concern, as expressed by Mr. Myer at formal hearing, is based on

the fact that Association Members, of which Hilton is one, have

not been notified of Association meetings and permitted to vote

on how to improve, remediate, or retrofit the master retention

pond or any other maintenance function, while on the other hand,

the Association holds Hilton responsible for approximately 63% of

the expenses related to the lease of the retention pond and

approximately 29% of the other Association expenses.

56. William Meyer testified that since MJ Ocala Hotel

Associates, Ltd.'s acquisition of the Hilton property on May 10,

1995, he has received minimal communication from the Association.

Hilton did, however, have an arrangement with the Association

whereby Hilton arranged and advanced the cost of maintenance of

the landscaping in various common areas within Park Centre. (See

Finding of Fact 3) Until September 1996, Hilton received monthly

reimbursement payments from the Association for the maintenance

services it arranged. In September 1996, despite a prior

estoppel letter to the contrary, a dispute between Hilton and the

Association arose with respect to the amounts of assessments owed

by Hilton to the Association, and with regard to the amount of

reimbursements owed by the Association to Hilton, going back to

1989. No litigation concerning this dispute has yet occurred.

57. Petitioner showed that the Association's only official

meetings of its members, consents or written actions in lieu of

meetings were its organizational meeting, a 1990 meeting, and a

1992 meeting; that the Association's tax returns show no expenses

from 1989 to 1995; that the Association has never had any assets

and that the first proposed repair contract on the master

retention pond was not let by the Association but by the

developer.

58. It is conceivable that there may be some technical

violation of the Articles of Incorporation, Declaration of

Covenants, Lease, or general corporate law pursuant to Chapter

617, Florida Statutes due to the Association's failure to give

notice and hold Association meetings, but those issues have not

yet resulted in litigation between these parties. Also, under

the terms of the Declaration of Covenants and other enabling

papers, Association members are not presently entitled to elect

the board of directors, set budgets, or otherwise directly

operate the Association. Therefore, and since the developer has

exclusively operated the Association to date, there has been

little practical reason to call meetings of the members. In any

case, this instant forum is without jurisdiction to resolve those

corporate and real property issues.

59. At formal hearing, Hilton demonstrated that one of the

Applicant's witnesses did not know at that moment in time from

which corporate "pocket" the remediation project would be paid

and that it is probable that the cost of remediation of the

master retention pond ultimately will be passed on to the

Association membership as provided for in the enabling documents.

Hilton presented no affirmative evidence indicating that the

Association will not be able to pay for and effectively operate

and maintain the master retention pond after it is remediated.

The Applicant's December 1996 submittals put the succession in

proper form acceptable to the District. In fact, Hilton will

have a significant percentage-based vote in the affairs of the

Association following turnover of control from the developer

because Hilton owns the largest parcel within Park Centre that is

subject to the terms of the Declaration of Covenants. (See

Finding of Fact 3).

60. Ocala Park Maintenance Association, Inc. has

demonstrated sufficient financial, legal, and administrative

capability to provide for the long-term operation and maintenance

of the remediated retrofit master retention pond.

61. The undisputed evidence shows that the project meets

the District's volume and recovery requirements for retention

systems for the entire drainage area served, including the

proposed La Quinta project which will involve some land fill.

62. The master retention pond as repaired will not result

in discharges into surface or ground water which would cause or

contribute to violations of state water quality standards.

63. The master retention pond as repaired will include all

of the design features required by the District to assure

adequate treatment of the stormwater before it enters Florida's

aquifer, and to preclude the formation of solution pipe sinkholes

in the stormwater system.

Addendum :

64. At formal hearing, Hilton argued that the proposed

remediation does not satisfy its own arbitrary standard for flood

prevention and generalized "concerns" that remediation could be

accomplished in a better way. It advanced no better way except

to suggest more soil borings to better "guesstimate" the depth of

limerock in the location.

65. However, by its proposed recommended order, Hilton

apparently now concedes, post-formal hearing, that the permit

application, as fully amended December 16, 1996 and proven-up at

formal hearing, should be granted subject to the additional

conditions recommended by the January 27, 1997 Technical Staff

Report (see Findings of Fact 20 and 34) plus the following

proposed additional "Other Conditions":

(1) Issuing the requested permit to the Applicant

following completion of the repairs to the Park Centre

Commons retention pond on Lot 2, and SJRWMD's receipt

of signed and sealed as built plans showing that it has

been properly cured and is working properly.

(2) The permit contain as an additional condition

that a licensed engineer be on site present and observe

the construction and within 30 days following the

completion of construction supply the SJRWD with as-

built plans showing that a minimum of 100 feet (25 feet

minimum times two, as required by Rule 40C-42.026(3)

F.A.C., times two, for reasonable assurance to Ocala

Hilton) of the bottom of the filtration system is in

proper contact with the subsurface limerock foundation

and that no other problems were encountered during

construction which will, in the professional opinion of

the engineer, materially adversely affect the system

functioning as planned in its design.

(3) The permit contain an additional condition

that the Association notice and hold meetings of

members and board of directors to approve the Sixth

Amendment to Declaration of Covenants, Conditions, and

Restrictions for Ocala Center Subdivision, and that it

be properly enacted and recorded in the Public Records

of Marion County, Florida, in order to meet the

operation and maintenance entity requirements.

66. Petitioner's first proposed additional condition

misapprehends the nature of permitting individual projects, is

contrary to District policy and permitting law generally, and is

not supported by any statute or rule. (See Findings of Fact 44-

47 and Conclusion of Law 78).

67. Petitioner's second proposed additional condition is

in part provided for in the permit as recommended in the January

27, 1997 Technical Staff Report and in part is unnecessary. (see

Findings of Fact 20, 34 and 39-42), misapprehends the nature of

permitting individual projects, is contrary to the District

policy and permitting law generally, and is not supported by any

statute or rule. (See Findings of Fact 44-47).

68. Petitioner's third proposed additional condition is in

part provided for in the permit as recommended in the January 27,

1997 Technical Staff Report (see Findings of Fact 20 and 34) and

otherwise seeks to make the District the "policeman" of corporate

compliance. The latter is outside the District's function and

authority.

CONCLUSIONS OF LAW

69. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes .

70. St. Johns River Water Management District is the

permitting authority. This permit application is governed by

Chapter 373 Florida Statutes and Sections 40C-42.023(1), 40C-

42.025, 40C-42.026(1), 40C-42.027, 40c-42.028, and 40C-42.029

Florida Administrative Code .

71. Contrary to any assertions in Hilton's motion to

dismiss or its proposed recommended order, experienced District

staff was satisfied as to the true identity of the permit

applicant prior to the original July 24, 1996 intent to issue.

Decisions of public administrators acting in their official

capacities, "on the front line" as it were, are presumed to be

correct at least where nothing more than an abbreviation or

typographical error has been demonstrated. See, State ex rel

Siegendorf v. Stone , 266 So.2d 345 (Fla. 1972).

72. If there ever had been any legitimate question of

identity or standing, the December 1996 supplements to the

application assured that by virtue of the Association's rights

and obligations under the Declaration of Covenants and its

leasehold interest in the master retention pond, the Ocala Park

Maintenance Association, Inc., has proper standing to apply for

the permit and to participate in this proceeding. See, Rule 40C-

42.024(1) Florida Administrative Code . In fact, despite any

alleged violations of Chapter 617 Florida Statutes , Petitioner's

proposed recommended order concedes at Paragraph 136 that Ocala

Park's December 1996 submittal to the District during the course

of these proceedings has completed the application and

demonstrated the Applicant's substantial interest. Even without

such acknowledgment, it is concluded that Ocala Park Maintenance

Association, Inc.'s standing has been proven.

73. Hilton filed its petition in the name of "Ocala/Silver

Springs Hilton." The only evidence presented with respect to the

identity of "Ocala/Silver Springs Hilton" is that it is a trade

name used by MJ Ocala Hotel Associates, Ltd., which is the owner

of the Ocala/Silver Springs Hilton hotel. No evidence was

presented that "Ocala/Silver Springs Hilton" has been registered

as a fictitious name as required by Section 865.09 Florida

Statutes . Despite that flaw, the undersigned is satisfied that

MJ Ocala Hotel Associates, Ltd. is doing a franchise business at

the location of the Ocala/Silver Springs Hilton hotel and owns

the parcel of real property upon which the Ocala/Silver Springs

Hilton hotel sits. The real property parcel owned by MJ Ocala

Hotel Associates, Ltd., is part of the flood plain served by the

master retention pond and is adjacent to common areas of the

subdivision. MJ Ocala Hotel Associates, Ltd. was granted

amendment to clarify the real party in interest prior to formal

hearing, and no fraud was perpetrated by naming the hotel on the

initial petition. MJ Ocala Hotel Associates, Ltd. has standing

herein.

74. The renewed motions to dismiss the application for

permit and the petition for formal hearing are denied.

75. La Quinta's contract for sale of Lot 2 within the

subdivision results in the conclusion that it has standing as an

Intervenor.

76. The burden of proof and duty to go forward in this

cause is upon the Applicant. See, Rule 40C-1.545 Florida

Administrative Code ; Capeletti Brothers v. Department of General

Services , 432 So.2d 1359 (Fla. 1 st DCA 1983), and Department of

Transportation v. J.W.C. Co. , 396 So.2d 787 (Fla. 1 st DCA 1981)

Without Hilton's presentation of "contrary evidence of equivalent

quality" to that presented by the Applicant, the permit must be

approved. See, Higgins et al v. Misty Creek Country Club, Inc.

and Southwest Florida Water Management District, DOAH Case No.

95-2196 (Recommended Order of ALJ Johnston, entered 10/19/95;

Final Order entered 11/28/95).

77. Rule 40C-42.023, Florida Administrative Code states as

follows:

(1) To receive a general or individual permit under

this cha pter, the Applicant must provide

reasonable assurance based on plans, test results

and other information, that the storm water

management system:

(a) will not result in discharges from the system

to surface and groundwater of the state that

cause or contribute to violations of state

water quality standards as set forth in

Chapter 62-3, 62-4, 62-302 and 62-550,

F.A.C. , including any anti-degradation

provisions of Section 62-4.242(1)(a) and (b),

62-242(2) and (3), and 62-302.300, F.A.C. ,

and any special standards for Outstanding

Florida Waters and Outstanding Natural

Resource Waters set forth in Section 62-

4.242(2) and (3), F.A.C. ;

(b) will not adversely affect drainage and flood

protection on adjacent or nearby properties

not owned or controlled by the Applicants;

(c) will be capable of being effectively operated

and maintained pursuant to the requirements

of this chapter; and

(d) meets any applicable basin criter ia contained

in Chapter 40C-41, F.A.C. , ( Emphasis

supplied ).

78. "Reasonable assurance" must be viewed in the context

of potential harm to the affected natural resources. The

requirement that an Applicant must provide reasonable assurance

does not mean that the Applicant must provide absolute guarantees

that the applicable standards and criteria never will be violated

in the future. See, Higgins, et al v. Misty Creek Country Club,

Inc. , supra . Nor does it mean that the Applicant must provide

assurances that all other systems will work optimally at all

times.

79. The Association, the Hilton, and the District

stipulated in their joint Pre-Hearing Stipulation at paragraph

5(a), that the Association's proposed stormwater management

system will not result in discharges into surface or groundwater

that cause or contribute to violations of state water quality

standards. Further, pursuant to Rule 40C-42.023(2)(a), Florida

Administrative Code , a showing that a proposed stormwater

management system complies with the applicable criteria set forth

in Rules 40C-42.024, 40C-42.025, 40C-42.026, and 40C-42.0265,

creates a presumption that the Applicant has provided reasonable

assurance of compliance with state water quality standards as

required by Rule 40C-42.023(1)(a).

80. Pursuant to Rule 40C-42.023(2)(b), a showing by an

Applicant that a proposed stormwater management system complies

with the criteria set forth in Rule 40C-42.025(8) and (9)

concerning water quality impacts creates a presumption that the

Applicant has provided reasonable assurance that the activity

meets the drainage and flood protection requirements of Rule 40C-

42.023(1)(b). Subsection 40C-42.025(9) is not applicable to this

application.

81. Pursuant to Rule 40C-42.023(2)(c), a showing that a

proposed stormwater management system complies with the

applicable criteria of Rules 40C-42.027, 40C-42.028, and 40C-

42.029, creates a presumption that the Applicant has provided

reasonable assurance of compliance with the operation and

maintenance requirements of Rule 40C-42.023(1)(c).

82. The Association has met its burden of proving by a

preponderance of the evidence that the proposed remediation of

the master retention pond meets the applicable criteria contained

in Rule 40C-42.024. Likewise, the Association has met its burden

of proving by a preponderance of the evidence that the proposed

remediation of the retention pond meets the applicable criteria

contained in Rule 40C-42.025 and Rule 40C-42.026(1). This case

does not involve a wetlands stormwater management system, and

therefore, the criteria contained in Rule 40C-42.0265 are

inapplicable. Accordingly, under Rules 40C-42.023(2)(a) and (b),

the Association is presumed to have given reasonable assurance of

compliance with the requirements set forth in Rule 40C-

42.023(1)(a) and (b).

83. The December 1996 application amendments brought the

Association's documentation into compliance with all the criteria

set forth in Rule 40C-42.027(4)(b), and its financial base was

established at formal hearing. The Association has demonstrated

that it is an acceptable operation and maintenance entity

pursuant to Rule 40C-42.027(3).

84. The Association has demonstrated compliance with the

District's minimum design criteria for sensitive karst areas as

set forth in Rule 40C-41.063(6), thereby satisfying the

requirements of Rule 40C-42.023(1)(d).

85. The Association has clearly demonstrated reasonable

technical scientific assurance that the remediated stormwater

management system will be capable of being effectively operated

and maintained pursuant to the requirements of Rule 40C-

42.023(1)(c).

86. Rules 40C-42.028 and 40C-42.029 address future

operational and reporting requirements. The evidence shows the

Association is capable of such future compliance.

87. The Association as Applicant has met all statutory and

rule criteria, and no evidence beyond speculation and unsupported

lay opinion of what the rules allegedly should, but do not,

provide, being presented in opposition, the permit should be

granted upon the terms proposed in the January 27, 1997 Technical

Staff Report.

88. The Association seeks attorney's fees and costs from

Hilton pursuant to Section 120.595 Florida Statutes [1996 Supp.].

No party has asserted that the pre-October 1, 1996 statute should

be applied. Attorney's fees and costs awards are creatures of

statute and must be claimed and plead with specificity.

Therefore, this order will not go beyond the statute plead.

89. Section 120.595(1)(c) Florida Statutes [1996 Supp.]

provides, in pertinent part

120.595(1)(b) The final order in a proceeding pursuant

to s. 120.57(1) shall award reasonable costs and a

reasonable attorney's fee to the prevailing party only

where the nonprevailing adverse party has been

determined by the administrative law judge to have

participated in the proceeding for an improper purpose.

120.595(1)(c) In proceedings pursuant to s. 120.57(1),

and upon motion, the administrative law judge shall

determine whether any party participated in the

proceeding for an improper purpose as defined by this

subsection and s. 120.569(2)(c). In making such

determination, the administrative law judge shall

consider whether the nonprevailing adverse party has

participated in two or more other such proceedings

involving the same prevailing party and the same

project as an adverse party and in which such two or

more proceedings the nonprevailing adverse party did

not establish either the factual or legal merits of its

position, and shall consider whether the factual or

legal position asserted in the instant proceeding would

have been cognizable in the previous proceedings. In

such event, it shall be rebuttably presumed that the

nonprevailing adverse party participated in the pending

proceeding for an improper purpose.

120.595(1)(d) In any proceeding in which the

administrative law judge determines that a party

participated in the proceeding for an improper purpose,

the recommended order shall determine the award of

costs and attorney's fees.

120.595(1)(e) For the purposes of this subsection:

1. "Improper purpose" means participation in

a proceedings pursuant to s. 120.57(1)

primarily to harass or to cause unnecessary

delay or for frivolous purpose or to

needlessly increase the cost of licensing or

securing the approval of an activity.

2. "Costs" has the same meaning as the costs

allowed in civil actions in this state as

provided in chapter 57.

3. "Nonprevailing adverse party" means a

party that has failed to have substantially

changed the outcome of the proposed or final

agency action which is the subject of a

proceeding. In the event that a proceeding

results in any substantial modification or

condition intended to resolve the matters

raised in a party's petition, it shall be

determined that the party having raised the

issue addressed is not a nonprevailing

adverse party. The recommended order shall

state whether the change is substantial for

purposes of this subsection. In no event

shall the term "nonprevailing party" or

"prevailing party" be deemed to include any

party that has intervened in a previously

existing proceeding to support the position

of an agency. ( Emphasis supplied )

90. Unlike Section 120.569(2)(c) Florida Statutes , which

deals with initiating "frivolous" proceedings and purposes,

Section 120.595 is concerned with participation in proceedings

for "improper purposes." Six Division of Administrative

Hearings' cases reported in ACCESS deal with "improper purpose."

None of them restrict that term to the mindset of the "non-

prevailing adverse party" at the time the petition is filed

(initiation of proceeding), but address the non-prevailing

party's motives throughout the proceedings (participation in the

proceedings). None are concerned that a business mindset to

obtain a business advantage constitutes an "improper purpose",

either. All are concerned with malice, bad faith, and harassment

for the sake of harassment.

91. The alignment of all the parties, Hilton's past-

litigation over a different project amicably resolved with La

Quinta, the voluntary intervention herein of La Quinta, and the

potential collateral litigation between Hilton and the

Association and/or the developer do not establish the statutory

rebuttable presumption of "improper purpose."

92. Therefore, the undersigned looks to the situation at

the time Hilton filed its petition on August 9, 1996. The facts

as established as of that date do not demonstrate an "improper

purpose."

93. Next, the undersigned looks to determine if, at any

time , Hilton "participated" in these proceedings for an improper

purpose. Clearly, until the January 27, 1997 Technical Staff

Report was issued a mere two days before formal hearing, there

remained substantial factors necessary to bring the

application/project into full compliance with the District's

rules, regardless of whether these factors directly impinged on

the technical scientific design efficiency of the project. The

District could specifically waive items where its rules had been

substantially complied with, but it was not at liberty to ignore

clear permit requirements. See, Fredericks v. School Board of

Monroe County , 307 So.2d 463 (Fla. 3 rd DCA 1975). At that point,

it is also clear that the District Staff modified its original

position on the application, because at that point staff began to

encourage the District's Board to impose two "Other Conditions"

clearly geared to the Applicant's newly professionally signed and

sealed engineering plans and the Association/Applicant's new

technically correct corporate entity and entity succession

documentation. As the court observed in Mercedes Lighting &

Electrical Supply, Inc. v. Dept. of General Services , 560 So.2d

272 (Fla. 1 st DCA 1990), the essence of Chapter 120 proceedings

is to give substantially affected persons an opportunity to

"change the agency's mind."

94. Finally, it must be determined whether or not Hilton

had any "improper purpose" after January 27, 1997. Although the

facts as established at formal hearing on January 29-30, 1997

show that the permit should be granted upon the terms proposed in

the January 27, 1997 Technical Staff Report and not upon the

terms proposed in Hilton's proposed recommended order, thereby

rendering Hilton a "nonprevailing adverse party" due to a lack of

substantial change to the project after January 27, 1997, that

ultimate outcome without more does not establish an improper

purpose.

95. The facts as found show that Hilton presented evidence

on the disputed issues of material fact remaining after January

27, 1997, most notably the structure of the Association's

succession and financial abilities, the effect of karst

formation, and the numerical flaw in the Applicant's most recent

calculations. Simply losing a case at trial is insufficient to

establish a frivolous purpose in the non-prevailing party, let

alone in improper purpose. See, Schwartz v. W-K Partners, et al ,

530 So.2d 456 (Fla. 5 th DCA 1988) and Trans-County Van Lines v.

Kronick , 497 So.2d 923 (Fla. 5 th DCA 1986).

96. No improper purpose has been proven herein.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that St. John's River Water Management District

enter a final order,

(1) Granting the permit upon the terms set forth in the

January 27, 1997 Technical Staff Report; and

(2) Denying attorney's fees and costs upon any "improper

purpose" theory.

RECOMMENDED this 24 th day of April, 1997, at Tallahassee,

Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone] SUNCOM 278-9675

F ax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of April, 1997.

COPIES FURNISHED:

Lauren E. Merriam, III, Esquire

BLANCHARD, MERRIAM, ADEL & KIRKLAND, P.A.

Post Office Box 1869

Ocala, Florida 34478-1869

Jennifer B. Springfield, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178-1429

Thomas M. Jenks, Esquire

200 West Forsyth Street, Suite 1400

Jacksonville, Florida 32202

Charles R. Forman, Esquire

FORMAN, KREHL & MONTGOMERY, P.A.

Post Office Box 159

Ocala, Florida 34478-0159

Henry Dean, Executive Director

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178-1429

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.