97-002845 Greenspace Preservation Association, Inc.; Frank Ward; Sal Locascio; Frederick P. Peterkin; And Harold M. Stahmer vs. St. Johns River Water Management District And City Of Gainesville
 Status: Closed
Recommended Order on Friday, December 19, 1997.


View Dockets  
Summary: Applicant demonstrated entitlement to stormwater permits to construct a greenway in City of Gainesville. Request for fees and costs denied.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8GREENSPACE PRESERVATION )

11ASSOCIATION, INC.; FRANK )

15WARD; SAL LOCASCIO; )

19FREDERICK P. PETERKIN; and )

24HAROLD M. STAHMER, )

28)

29Petitioners, )

31)

32vs. ) Case Nos. 97-2845

37) 97-2846

39ST. JOHNS RIVER WATER )

44MANAGEMENT DISTRICT and )

48CITY OF GAINESVILLE, )

52)

53Respondents. )

55______________________________)

56RECOMMENDED ORDER

58Pursuant to notice, this matter was heard on October 20 and

6921, and November 6, 1997, in Gainesville, Florida, by Donald R.

80Alexander, the assigned Administrative Law Judge of the Division

89of Administrative Hearings.

92APPEARANCES

93For Petitioners: Samuel A. Mutch, Esquire

992790 Northwest 43rd Street

103Suite 100, Meridien Centre

107Gainesville, Florida 32606

110For Respondent: Jennifer B. Springfield, Esquire

116(District) Mary Jane Angelo, Esquire

121Post Office Box 1429

125Palatka, Florida 32178-1429

128For Respondent: Richard R. Whiddon, Jr., Esquire

135(City) Post Office Box 1110

140Gainesville, Florida 32602-1110

143STATEMENT OF THE ISSUE

147The issue is whether the City's applications for an

156individual stormwater permit and a noticed general environmental

164resource permit for Phase 1A of the proposed Hogtown Creek

174Greenway should be approved.

178PRELIMINARY STATEMENT

180Case No. 97-2845 began in May 1997 when Respondent, St.

190Johns River Water Management District, issued its notice of

199intent to issue an individual stormwater permit to Respondent,

208City of Gainesville, authorizing the construction of a 2,000 foot

219long asphaltic trail/boardwalk, a parking facility, and

226associated improvements related to Phase IA of the Hogtown Creek

236Greenway project in the City of Gainesville. Case No. 97-2846

246involves the proposed issuance of a noticed general environmental

255resource permit to the City of Gainesville to construct 481

265square feet of piling supported structures over wetlands or

274surface waters for the same project.

280On June 9, 1997, Petitioners, Greenspace Preservation

287Association, Inc., Frank Ward, Sal Locascio, Frederick P.

295Peterkin, Harold M. Stahmer and Jane B. Conner, filed Petitions

305for Initiation of Formal Proceedings with the St. Johns River

315Water Managment District seeking to contest the issuance of the

325two permits.

327The cases were referred by the agency to the Division of

338Administrative Hearings on June 13, 1997, with a request that an

349Administrative Law Judge be assigned to conduct a final hearing.

359By Notice of Hearing dated July 2, 1997, the two cases were

371consolidated and a final hearing was scheduled on October 1 and

3822, 1997, in Gainesville, Florida. Petitioners' Motion to

390Reschedule was granted, and the hearing was continued to October

40020 and 21, 1997, at the same location. At Petitioners' request,

411the cases were again rescheduled to October 21 and 22, 1997.

422On June 30, 1997, Respondents filed Motions to Strike

431certain portions of the petitions. The motions were granted by

441order dated August 2, 1997, and Petitioners were required to file

452amended petitions reflecting the changes required by the order.

461Thereafter, on September 19 and 24, 1997, Petitioners filed a

471First Amended Petition for Initiation of Formal Proceedings in

480Case No. 96-2845 and a Second Amended Petition for Initiation of

491Formal Proceedings in Case No. 96-2846. On October 13, 1997, the

502undersigned granted a Motion to Strike paragraph (e)(3) on pages

5124 and 5 of the Second Amended Petition.

520At final hearing, Jane B. Conner was removed as a party due

532to ill health. The remaining Petitioners presented the testimony

541of Thomas L. Morris, accepted as an expert in biology and impacts

553of construction projects on the biota of North Florida; Dr. David

564L. Auth, accepted as an expert in zoology and herpetology in the

576State of Florida; Dr. Daniel B. Ward, accepted as an expert in

588botany; and Charles Swallows, a professional engineer and

596accepted as an expert in civil engineering. Also, they offered

606Petitioners' Exhibits 1-6. All exhibits except number 2 were

615received in evidence. Respondent St. Johns River Water

623Management District presented the testimony of Timothy Segul,

631accepted as an expert in water resource engineering; Barbara

640Hatchitt, accepted as an expert in wetlands ecology, wetlands

649delineation, and environmental resource permitting; Patrick M.

656Frost, accepted as an expert in wetlands ecology and water

666managment permitting; and Rory Causseaux. Also, it offered

674District Exhibits 1, 2, 3A and B, 4, 5A-D, 6 and 8. All exhibits

688were received in evidence. The City presented the testimony of

698Rory Causseaux, a professional engineer and accepted as an expert

708in civil engineering; Larry Sellers, accepted as an expert in

718wetland delineation; Wayne Bowers; Theresa Scott; Deanna Kinnard;

726and Timothy Sagul. Also, it offered City Exhibits 1-26. All

736exhibits were received. Finally, the undersigned took official

744recognition of Chapters 40C-1, 40C-41, 40C-42, 40C-400, 62-302,

75262-340, 62-520, and 62-550, Florida Administrative Code; the St.

761Johns River Water Management District's Applicants Handbook:

768Regulation of Stormwater Management Systems, Chapter 40C-42,

775Florida Administative Code, dated October 3, 1995; Rules

78339-27.003, 39-27.004, 39-27.005, and 40C-4.021, Florida

789Administrative Code; and 50 Code of Federal Regulations, Section

79817.12.

799The transcript of hearing (five volumes) was filed on

808November 13, 1997. Proposed findings of fact and conclusions of

818law were due no later than December 1, 1997. They were timely

830filed by Respondents, and they have been considered by the

840undersigned in the preparation of this Recommended Order.

848On December 15, 1997, or two weeks after the designated due

859date, Petitioners filed proposed findings of fact and conclusions

868of law. That proposed order is the subject of a Motion to Strike

881filed by the agency.

885FINDINGS OF FACT

888Based upon all of the evidence, the following findings of

898fact are determined:

901A. Background

9031. In these two cases, Respondent, City of Gainesville

912(City), seeks the issuance of a stormwater system management

921permit (stormwater permit) to construct a 2,000-foot long

930asphaltic trail/boardwalk, a parking facility and associated

937improvements for Phase 1A of the Hogtown Creek Greenway project

947in the north central portion of the City. That matter is

958docketed as Case No. 97-2845. The City also seeks the issuance

969of a noticed general environmental resource permit (NGP) to

978construct 481 square feet of piling supported structures over

987wetlands or surface waters for the same project. That matter has

998been assigned Case No. 97-2846. Respondent, St. Johns River

1007Water Management District (District), is the regulatory agency

1015charged with the responsibility of reviewing and approving the

1024requested permits.

10262. Petitioner, Greenspace Preservation Association, Inc.,

1032is a not-for-profit Florida corporation primarily composed of

1040persons who own real property adjacent to the route proposed by

1051the City, as well as local environmental interests. Petitioners,

1060Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M.

1070Stahmer, are individuals who own real property adjacent to the

1080route proposed by the City for the Greenway. The parties have

1091stipulated that Petitioners are substantially affected by the

1099District's proposed action and thus have standing to initiate

1108these cases.

11103. On March 28, 1997, the City filed applications for a

1121stormwater permit and a NPG for Phase IA of the Hogtown Creek

1133Greenway project. After conducting a review of the applications,

1142including an on-site visit to the area, in May 1997, the District

1154proposed to issue the requested permits.

11604. On June 9, 1997, Petitioners timely filed a Petition for

1171Initiation of Formal Proceedings as to both intended actions. As

1181amended and then refined by stipulation, Petitioners generally

1189allege that, as to the stormwater permit, the City has failed to

1201provide reasonable assurance that the project meets the

1209permitting requirements of the District; the City has failed to

1219provide reasonable assurance that the stormwater system will not

1228cause violations of state water quality standards; the City has

1238failed to provide reasonable asurance that the project satisfies

1247the District's minimum required design features; and the City has

1257failed to provide reasonable assurance that the stormwater system

1266is capable of being effectively operated and maintained by the

1276City.

12775. As to the NPG, Petitioners generally allege that the

1287piling supported structure is not less than 1,000 square feet;

1298the jurisdictional wetlands are greater than the area shown on

1308the plans submitted by the City; the City has failed to provide

1320reasonable assurance that the system will not significantly

1328impede navigation; the City has failed to provide reasonable

1337assurance that the system does not violate state water quality

1347standards; the City has failed to provide reasonable assurance

1356that the system does not impede the conveyance of a watercourse

1367in a manner that would affect off-site flooding; the City has

1378failed to provide reasonable assurance that the system will not

1388cause drainage of wetlands; and the City failed to provide

1398reasonable assurance that the system does not adversely impact

1407aquatic or wetland dependent listed species.

14136. Respondents deny each of the allegations and aver that

1423all requirements for issuance of the permits have been met. In

1434addition, the City has requested attorney's fees and costs under

1444Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the

1452theory that these actions were filed for an improper purpose.

1462B. A General Description of the Project

14697. The Hogtown Creek Greenway is a long-term project that

1479will eventually run from Northwest 39th Street southward some

1488seven miles to the Kanapaha Lake/Haile Sink in southwest

1497Gainesville. These cases involve only Phase 1A of that project,

1507which extends approximately one-half mile. This phase consists

1515of the construction of a 2,000-foot long asphaltic concrete

1525trail/boardwalk, a timber bridge and boardwalk, a parking

1533facility, and associated improvements. The trail will extend

1541from the Loblolly Environmental Facility located at Northwest

154934th Street and Northwest 5th Avenue, to the intersection of

1559Northwest 8th Avenue and Northwest 31st Drive.

15668. The trail will have a typical width of ten feet. For

1578the majority of its length, the trail will be constructed of

1589asphaltic concrete overlying a limerock base, and it will

1598generally lie at the existing grade and slope away from the

1609creek.

16109. Besides the trail, additional work involves the repaving

1619of Northwest 5th Avenue with the addition of a curb and gutter,

1631the construction of an entrance driveway, paved and grassed

1640parking areas, and sidewalks at the Loblolly Environmental

1648Facility, and the widening and addition of a new turn lane and

1660pedestrian crosswalk at the intersection of Northwest 8th Avenue

1669and Northwest 31st Drive.

1673C. The Stormwater Permit

1677a. Generally

167910. The entire Phase IA project area lies within the

1689Hogtown Creek 10-year floodplain. It also lies within the

1698Hogtown Creek Hydrologic Basin, which basin includes

1705approximately 21 square miles. The project area for the proposed

1715stormwater permit is 4.42 acres.

1720b. Water quality criteria

172411. Phase IA of the Greenway will not result in discharges

1735into surface groundwater that cause or contribute to violations

1744of state water quality standards.

174912. When a project meets the applicable design criteria

1758under the District's stormwater rule, there is a presumption that

1768the project will not cause a violation of state water quality

1779standards. There are two dry retention basins associated with

1788the project. Basin 1 is located at the cul-de-sac of Northwest

17995th Avenue and will capture and retain the stormwater runoff from

1810the new and reconstructed impervious areas at the Loblolly

1819Facility. Basin 2 is located at the parking area and will

1830capture and retain stormwater runoff at the existing building and

1840proposed grass parking area.

184413. Under the stormwater rule, the presumptive criteria for

1853retention basins require that the run-off percolate out of the

1863basin bottom within 72 hours. The calculations performed by the

1873City's engineer show that the two retention basins will recover

1883within that timeframe. In making these calculations, the

1891engineer used the appropriate percolation rate of ten inches per

1901hour. Even using the worst case scenario with a safety factor of

1913twenty and a percolation rate of one-half inch per hour, the two

1925retention basins will still recover within 72 hours.

193314. The presumptive criteria for retention basins require

1941that the basin store a volume equal to one inch of run-off over

1954the drainage area or 1.25 inches of run-off over the impervious

1965area plus one-half inch of run-off over the drainage area. The

1976calculations performed by the City's engineer show that the two

1986retention basins meet the District's volume requirements for

1994retention systems.

199615. An applicant is not required to utilize the presumptive

2006design criteria, but instead may use an alternative design if the

2017applicant can show, based on calculations, tests, or other

2026information, that the alternative design will not cause a

2035violation of state water quality standards. As a general rule,

2045the District applies its stormwater rule so that water quality

2055treatment is not required for projects or portions of projects

2065that do not increase pollutant loadings. This includes linear

2074bicycle/pedestrian trails. The City's proposed trail will not be

2083a source of pollutants.

208716. The City will install signs at both entrances to the

2098trail to keep out motorized vehicles. Except for emergency and

2108maintenance vehicles, motorized vehicles will not be permitted on

2117the trail. The infrequent use by emergency or maintenance

2126vehicles will not be sufficient to create water quality concerns.

2136The construction of a treatment system to treat the stormwater

2146from the trail would provide little benefit and would only serve

2157to unnecessarily impact natural areas.

216217. Although treatment of the stormwater run-off from the

2171trail portion of the project is not required under District

2181rules, the run-off will receive treatment in the vegetated upland

2191buffer adjacent to the trail. The District's proposed other

2200condition number 3 will require the City to plant vegetation in

2211unvegetated and disturbed areas in the buffer. This will reduce

2221the likelihood of erosion or sedimentation problems in the area

2231of the trail. Although disputed at hearing, it is found that the

2243City's engineer used the appropriate Manning coefficient in the

2252calculations regarding the buffer. Even without a vegetated

2260buffer, run-off coming from the bicycle trail will not violate

2270state water quality standards.

227418. The City will install appropriate erosion and sediment

2283controls. These include siltation barriers along the entire

2291length of both sides of the proposed trail prior to commencing

2302construction. Such barriers will not allow silt or other

2311material to flow through, over, or under them.

231919. The City will also place hay bales and any other silt

2331fencing necessary to solve any erosion problem that may occur

2341during construction. In addition, the permit will require an

2350inspection and any necessary repairs to the siltation barriers at

2360the end of each day of construction.

236720. Saturation of the limerock bed under the paved portion

2377of the trail is not expected to cause a problem because heavy

2389vehicles will not regularly use the trail. The trail portion of

2400the project can be adequately maintained to avoid deterioration.

2409c. Sensitive Karst Areas Basin criteria

241521. The two proposed dry retention basins for Phase 1A are

2426located within the District's Sensitive Karst Areas Basin. They

2435include all of the minimum design features required by the

2445District to assure adequate treatment of the stormwater before it

2455enters the Floridan aquifer and to preclude the formation of

2465solution pipe sinkholes in the stormwater system.

247222. There will be a minimum of three feet of unconsolidated

2483soil material between the surface of the limestone bedrock and

2493the bottom and sides of the two retention basins. The

2503appropriate mechanism for determining the depth of limestone is

2512to do soil borings. The soil borings performed by the City show

2524that there is at least three feet of unconsolidated material

2534between the bottom of the basins and any limerock where the

2545borings were taken. In other words, limestone would not be

2555expected to be within three feet of the bottom of either basin.

2567Based on the soil boring results, the seasonal high water table

2578is at least six feet below ground level.

258623. The depth of the two retention basins will be less than

2598ten feet. Indeed, the depth of the basins will be as shallow as

2611possible and will have a horizontal bottom with no deep spots.

2622To make the retention basins any larger would require clearing

2632more land. A large shallow basin with a horizontal bottom

2642results in a lower hydraulic head and therefore is less potential

2653for a sinkhole to form. Before entering the basins, stormwater

2663will sheet flow across pavement and into a grass swale, thereby

2674providing some dispersion of the volume.

268024. Finally, the two retention basin side slopes will be

2690vegetated. Special condition number 7 provides that if limestone

2699is encountered during excavation of a basin, the City must over-

2710excavate the basin and backfill with three feet of unconsolidated

2720material below the bottom of the basin.

2727d. Drainage and flood protection

273225. Contrary to Petitioners' assertions, the project will

2740not adversely affect drainage or flood protection on surrounding

2749properties.

275026. The trail will be constructed generally at existing

2759grade. Because the trail will be constructed at existing grade,

2769the net volume of fill necessary for Phase 1A is approximately

2780zero. Therefore, there will not be a measurable increase in the

2791amount of runoff leaving the site after construction, and the

2801trail will not result in an increase in off-site discharges.

281127. District rules require that the proposed post-

2819development peak rate of discharge from a site not exceed the

2830pre-development peak rate of discharge for the mean annual storm

2840only for projects that exceed fifty percent impervious surface.

2849The proposed project has less than fifty percent impervious

2858surface. Even though it is not required, the City has

2868demonstrated that the post-development rate of discharge will not

2877exceed the pre-development peak rate of discharge.

288428. Both basins will retain the entire mean annual storm so

2895that the post-development rate of discharge is zero. Even during

2905a 100-year storm event, the retention basins willl not discharge.

2915Therefore, there will not be any increase in floodplain

2924elevations during the 10, 25, or 100-year storm events from the

2935proposed project.

2937e. Operation and maintenance entity requirements

294329. The applicable requirements of Chapter 40C-42, Florida

2951Administrative Code, regarding operation and maintenance, have

2958been met by the applicant.

296330. The City proposes itself as the permanent operation and

2973maintenance entity for the project. This is permissible under

2982District regulations. The duration for the operation and

2990maintenance phase of the permit is perpetual.

299731. The City has adequate resources and staff to maintain

3007the phase 1A portion of the project. The public works department

3018will maintain the stormwater management system out of the City's

3028utility fund.

303032. The City provides periodic inspections of all of its

3040stormwater systems. These inspections are paid for out of the

3050collected stormwater fees. The City will also conduct periodic

3059inspections of the project area, and the two retention basins

3069will be easily accessed by maintenance vehicles.

307633. The City will be required to submit an as-built

3086certification, signed and sealed by a professional engineer, once

3095the project is constructed. Monthly inspections of the system

3104must be conducted looking for any sinkholes or solution cavities

3114that may be forming in the basins. If any are observed, the City

3127is required to notify the District and repair the cavity or

3138sinkhole.

313934. Once the system is constructed, the City will be

3149required to submit an inspection report biannually notifying the

3158District that the system is operating and functioning in

3167accordance with the permitted design. If the system is not

3177functioning properly, the applicant must remediate the system.

318535. The City will be required to maintain the two retention

3196basins by mowing the side slopes, repairing any erosion on the

3207side slopes, and removing sediment that accumulates in the

3216basins. Mowing will be done at least six times per year. The

3228City will stabilize the slopes and bottom areas of the basins to

3240prevent erosion.

324236. The City has a regular maintenance schedule for

3251stormwater facilities. The project will be included within the

3260City's regular maintenance program.

326437. The City has budgeted approximately $80,000.00 for

3273maintenance of the trail and vegetated buffer. Also, it has

3283added new positions in its budget that will be used to maintain

3295and manage the Greenway system.

330038. Finally, City staff will conduct daily inspections of

3309the Phase 1A trail looking for problems with the vegetated

3319buffer, erosion problems along the trail, and sediment and debris

3329in the retention basin. If the inspections reveal any problems,

3339the staff will take immediate action to correct them.

3348D. The Noticed General Environmental Resource Permit

3355a. Generally

335739 . By this application, the City seeks to construct 481

3368square feet of piling supported structures over wetlands or

3377surface waters. The proposed structures include a 265 square

3386foot timber bridge over an un-vegetated flow channel, which

3395connects a borrow area to Possum Creek, and a 216 square foot

3407boardwalk over two small wetland areas located south of the flow

3418channel. None of the pilings for the bridge or boardwalk will be

3430in wetlands, and no construction will take place in Hogtown or

3441Possum Creeks. The paved portion of the trail will not go

3452through wetlands, and there will be no dredging or filling in

3463wetlands.

346440. The receiving waters for the project are Hogtown and

3474Possum Creeks. Both are Class III waters. Hogtown Creek

3483originates in north central Gainesville and flows southwest to

3492Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek

3500originates in northwest Gainesville and flows southeast to its

3509confluence with Hogtown Creek south of the proposed bridge

3518structure.

3519b. Wetlands

352141. The total area of the proposed bridge and boardwalk

3531over surface water or wetlands is approximately 481 square feet.

3541The wetland delineation shown on the City's Exhibit 5A includes

3551all of the areas in the project area considered to be wetlands

3563under the state wetland delineation methodology.

356942. The United State Army Corps of Engineers' wetland line

3579includes more wetlands than the District wetland line. The

3588former wetland line was used to determine the area of boardwalk

3599and bridge over wetlands. Even using this line, however, the

3609total area of boardwalk over surface waters or wetlands is

3619approximately 481 square feet and is therefore less than 1,000

3630square feet.

3632c. Navigation

363443. The proposed system does not significantly impede

3642navigation. Further, the structures will span a wetland area and

3652an un-vegetated flow channel, both of which are non-navigable.

3661In fact, the flow channel generally exhibits little or no flow

3672except after periods of rainfall.

3677d. Water quality

368044. The construction material that will be used for the

3690bridge and boardwalk will not generate any pollutants. Morever,

3699chemical cleaners will not be used on those structures.

370845. Silt fences will be used and vegetation will be planted

3719in the vicinity of the bridge and boardwalk to prevent erosion

3730and sedimentation problems. The amount of erosion from drip that

3740comes off the boardwalk will be minimal. Therefore, the bridge

3750and boardwalk will not cause a violation of state water quality

3761standards.

3762e. Off-site flooding

376546. The project will not impede conveyance of any stream,

3775river, or other water course which would increase off-site

3784flooding.

378547. The structures will completely span the wetland areas

3794and flow channel, and no part of the structures, including the

3805pilings, will lie within any water or wetland areas including the

3816flow channel. There will be a span of 2.5 to 3 feet from the

3830horizontal members of the bridge and boardwalk down to the ground

3841surface which will allow water to pass through unobstructed.

3850Further, there will not be any cross ties or horizontal

3860obstructions on the lower portions of the boardwalk or bridge

3870pilings. Further, due to the spacing of the pilings, the

3880boardwalk and bridge will not trap sufficient sediment such as

3890leaves to impede the conveyance of the flow channel. Therefore,

3900conveyance through the flow channel will not be affected by the

3911structures.

391248. Because the boardwalk and bridge are not over Hogtown

3922or Possum Creeks, they will not cause any obstruction to the

3933conveyance of the creeks.

3937f. Aquatic and wetland dependent listed species

394449. The project will not adversely affect any aquatic or

3954wetland dependent listed species. These species are defined by

3963District rule as aquatic or wetland dependent species listed in

3973Chapter 39-27, Florida Administrative Code, or 50 Code of Federal

3983Regulations, Part 17.

398650. No such species are known to exist in the project area,

3998and none are expected to exist in the location and habitat type

4010of the project area. Therefore, contrary to Petitioners'

4018assertions, there are no listed salamander, frog, turtle, or

4027lizard species known to occur within the Hogtown Creek basin.

403751. Although it is possible that the box turtle may be

4048found in the project area, it is not an aquatic or wetland

4060dependent listed species.

406352. One baby American alligator (between two and three feet

4073in length) was observed in the borrow pit area of the project on

4086September 11, 1997. Except for this sighting, no other listed

4096animal species have been observed in the project area. As to the

4108alligator, the only area in which it could nest would be in the

4121existing excavated borrow pit, and none of the proposed

4130construction will take place in that area. More than likely, the

4141alligator had walked into the area from Clear Lake, Kanapaha

4151Prairie, or Lake Alice. The proposed structures will not affect

4161the movement of the alligator nor its feeding habits.

4170g. Drainage of wetlands

417453. Because the boardwalk and bridge are elevated

4182structures over waters and wetlands, and the City has not

4192proposed to construct ditches or other drainage systems, the

4201proposed system will not cause drainage of the wetlands.

4210h. Coral/macro-marine algae/grassbeds

421354. The proposed system is not located in, on, or over

4224coral communities, macro/marine algae, or a submerged grassbed

4232community.

4233D. Were the Petitions Filed for an Improper Purpose ?

424255. Prior to the filing of their petitions, Petitioners did

4252not consult with experts, and they prepared no scientific

4261investigations. Their experts were not retained until just prior

4270to hearing.

427256. Petitioners are citizens who have genuine concerns with

4281the project. They are mainly longtime residents of the area who

4292fear that the Greenway will not be properly maintained by the

4303City; it will increase flooding in the area; it will cause water

4315quality violations; and it will attract thousands of persons who

4325will have unimpeded access to the back yards of nearby residents.

4336Although these concerns were either not substantiated at hearing

4345or are irrelevant to District permitting criteria, they were

4354nonetheless filed in good faith and not for an improper purpose.

4365CONCLUSIONS OF LAW

436857. The Division of Administrative Hearings has

4375jurisdiction over the subject matter and the parties hereto

4384pursuant to Section 120.57(1), Florida Statutes.

439058. As the party seeking the issuance of two permits, the

4401City bears the burden of proving by a preponderance of the

4412evidence that it is entitled to such permits. See Dep't of

4423Transp. v. J.W.C. Co. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

443659. The District's requirements applicable to the City's

4444stormwater application are found in Rules 40C-42.023(1), 40C-

445242.025, 40C-42.026(1), 40C-42.027, 40C-42.028, and 40C-42.029,

4458Florida Administrative Code. By a preponderance of the evidence,

4467the City has demonstrated compliance with all pertinent criteria.

4476The City has also satisfied the additional requirements in Rule

448640C-41.063(6), Florida Administrative Code, for projects located

4493within the Sensitive Karst Areas Basin.

449960. The District's requirements applicable to the City's

4507noticed general environmental resource permit application are

4514found in Rule 40C-400.475(2), Florida Administrative Code. By a

4523preponderance of the evidence, the City has provided the

4532reasonable assurances required by the rule.

453861. Finally, the City has asked that Petitioners be

4547required to reimburse it for attorney's fees and costs on the

4558theory that the petitions were filed for an improper purpose.

4568Section 120.595(1)(b), Florida Statutes (Supp. 1996), provides

4575that:

4576The final order in a proceeding pursuant to

4584s. 120.57(1) shall award reasonable costs and

4591a reasonable attorney's fee to the prevailing

4598party only where the nonprevailing adverse

4604party has been determined by the

4610administrative law judge to have participated

4616in the proceeding for an improper purpose.

462362. Subparagraph (e)1. of the same statute defines the term

"4633improper purpose" as follows:

"4637Improper purpose" means participation in a

4643proceeding pursuant to s. 120.57(1) primarily

4649to harass or to cause unnecessary delay or

4657for frivolous purpose or to needlessly

4663increase the cost of licensing or securing

4670the approval of an activity.

467563. The City did, of course, prevail in these actions.

4685Even so, the record does not support an award of attorney's fees

4697and costs. This is because the undersigned has concluded that

4707the petitions were filed in good faith and not for the purpose of

4720delaying the issuance of the permits or needlessly increasing the

4730costs of the City in securing the permits. This being so, the

4742request by the City for attorney's fees and costs is denied.

475364. Finally, the District's Motion to Strike Petitioners'

4761Proposed Recommended Order as being untimely is granted. Here,

4770Petitioners failed to request leave to late-file their order, the

4780order does not comport with the format required by Division rule,

4791and the order essentially responds to proposed findings contained

4800in the City's filing.

4804RECOMMENDATION

4805Based on the foregoing Findings of Fact and Conclusions of

4815Law, it is

4818RECOMMENDED that the St. Johns River Water Management

4826District enter a final order approving the applications of the

4836City of Gainesville and issuing the requested permits.

4844DONE AND ENTERED this 19th day of December, 1997, in

4854Tallahassee, Leon County, Florida.

4858___________________________________

4859DONALD R. ALEXANDER

4862Administrative Law Judge

4865Division of Administrative Hearings

4869The DeSoto Building

48721230 Apalachee Parkway

4875Tallahassee, Florida 32399-1550

4878(904) 488-9675 SUNCOM 278-9675

4882Fax Filing (904) 921-6847

4886Filed with the Clerk of the

4892Division of Administrative Hearings

4896this 19th day of December, 1997.

4902COPIES FURNISHED :

4905Henry Dean, Executive Director

4909St. Johns River Water

4913Management District

4915Post Office Box 1429

4919Palatka, Florida 32178-1429

4922Samuel A. Mutch, Esquire

49262790 Northwest 43rd Street

4930Suite 100, Meridien Centre

4934Gainesville, Florida 32606

4937Jennifer B. Springfield, Esquire

4941Mary Jane Angelo, Esquire

4945Post Office Box 1429

4949Palatka, Florida 32178-1429

4952Richard R. Whiddon, Jr., Esquire

4957Post Office Box 1110

4961Gainesville, Florida 32602-1110

4964NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4970All parties have the right to submit written exceptions to this

4981Recommended Order within fifteen days. Any exceptions to this

4990Recommended Order should be filed with the St. Johns River Water

5001Management District.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/12/2004
Proceedings: Final Order filed.
PDF:
Date: 01/15/1998
Proceedings: Agency Final Order
Date: 12/23/1997
Proceedings: Petitioner`s Response to City of Gainesville`s Motion to Strike and St. Johns River Water Management District`s Motion to Strike Recommended Order filed.
PDF:
Date: 12/19/1997
Proceedings: Recommended Order
PDF:
Date: 12/19/1997
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 10/20-21/97 & 11/06/97.
Date: 12/15/1997
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 12/11/1997
Proceedings: (Respondent) Motion to Strike Petitioners` Proposed Recommended Order (filed via facsimile).
Date: 12/01/1997
Proceedings: Respondent City of Gainesville`s Proposed Recommended Order filed.
Date: 11/26/1997
Proceedings: Respondent City of Gainesville`s Proposed Recommended Order filed.
Date: 11/26/1997
Proceedings: (Notice of Filing) Proposed Recommended Order of St. Johns River Water Management District; Proposed Recommended Order of St. Johns River Water Management District filed.
Date: 11/13/1997
Proceedings: Notice of Filing, Transcript filed.
Date: 11/06/1997
Proceedings: CASE STATUS: Hearing Held.
Date: 10/27/1997
Proceedings: Order sent out. (hearing set for 11/6/97; 10:00am; Gainesville)
Date: 10/23/1997
Proceedings: Notice of Filing, Petitioners` First set of Interrogatories to Respondent City of Gainesville filed.
Date: 10/23/1997
Proceedings: Greenspace Preservation Association, et al.`s objections to pre-hearing stipulation filed.
Date: 10/23/1997
Proceedings: Greenspace preservation Association, Inc et al`s Motion for continuance filed.
Date: 10/22/1997
Proceedings: City of Gainesville`s Response to the Petitioner`s First Set of Interrogatories, Notice of Filing - Petitioner`s First Set of Interrogatories to Respondent City of Gainesville (filed via facsimile).
Date: 10/21/1997
Proceedings: Hearing Partially Held, continued to date not certain.
Date: 10/20/1997
Proceedings: (City) Response to Respondents` Motion to Compel Discovery (filed via facsimile).
Date: 10/20/1997
Proceedings: (Plaintiff) Notice of Taking Deposition Duces Tecum filed.
Date: 10/20/1997
Proceedings: St. Johns River Water Management District`s Supplemental Motion for Official Recognition filed.
Date: 10/20/1997
Proceedings: Respondent`s First Set of Interrogatories to Petitioner, Harold M. Stahmer; Respondent`s First Set of Interrogatories to Petitioner, Jane B. Connor filed.
Date: 10/20/1997
Proceedings: Respondent`s First Set of Interrogatories to Petitioner, Fredrick P. Peterkin; Respondent`s First Set of Interrogatories to Petitioner, Sal Locasio; Notice of Filing filed.
Date: 10/20/1997
Proceedings: Respondent`s First Set of Interrogatories to Petitioner, Greenspace Preservation Association, Inc; Respondent`s First Set of Interrogatories to Petitioner, Frank Ward filed.
Date: 10/17/1997
Proceedings: Order sent out. (Motion for Continuance is denied)
Date: 10/17/1997
Proceedings: St. Johns River Water Management District`s Motion in Limine (filed via facsimile).
Date: 10/15/1997
Proceedings: (Joint) Prehearing Stipulation (filed via facsimile).
Date: 10/14/1997
Proceedings: Order sent out. (petitioner`s motion for continuance is granted; hearing set for Oct. 21-22, 1997; 10:30am)
Date: 10/13/1997
Proceedings: City of Gainesville`s Objection to Petitioners` Motion for Continuance (filed via facsimile).
Date: 10/13/1997
Proceedings: (SJRWMD) Notice of Taking Deposition (filed via facsimile).
Date: 10/13/1997
Proceedings: Order sent out. (City of Gainesville Motion to Strike Paragraph is Granted)
Date: 10/13/1997
Proceedings: (SJRWMD) Motion for Official Recognition filed.
Date: 10/13/1997
Proceedings: (Petitioner) Motion for Continuance of Final Hearing (filed via facsimile).
Date: 10/09/1997
Proceedings: (City) Notice of Taking Deposition (Duces Tecum) (filed via facsimile).
Date: 10/08/1997
Proceedings: (City of Gainesville) Notice of Filing Answers to Petitioner`s First Set of Interrogatories (filed via facsimile).
Date: 10/07/1997
Proceedings: Order sent out. (SJRWMD Motion to Compel Answers to Interrogatories is Granted)
Date: 10/06/1997
Proceedings: (City of Gainesville) Motion to Strike and/or Dismiss First Amended Petition (filed via facsimile).
Date: 09/29/1997
Proceedings: Respondent`s Response to Petitioner`s Request for Production (filed via facsimile).
Date: 09/24/1997
Proceedings: St. Johns River Water Management District`s Motion to Compel Answers to Interrogatories from Petitioner Greenspace Preservation Association, Inc. (filed via facisimile) filed.
Date: 09/24/1997
Proceedings: (Petitioner) Second Amended Petition for Initiation of Formal Proceedings (filed via facsimile).
Date: 09/22/1997
Proceedings: Order Designating Room Location sent out.
Date: 09/22/1997
Proceedings: (Petitioner) First Amended Petition for Initiation of Formal Proceedings (filed via facsimile).
Date: 09/16/1997
Proceedings: Order sent out. (hearing set for Oct. 20-21, 1997; Gainesville; 10:30am)
Date: 09/08/1997
Proceedings: (Petitioners) Notice of Unavailability for Depositions filed.
Date: 09/05/1997
Proceedings: Order sent out. (hearing cancelled; parties to give available hearing information within 10 days)
Date: 09/04/1997
Proceedings: (City) 7/Notice of Taking Deposition Duces Tecum (filed via facsimile).
Date: 08/29/1997
Proceedings: Petitioners` Notice of Compliance With Discovery filed.
Date: 08/22/1997
Proceedings: (Petitioners) Motion to Reschedule filed.
Date: 08/21/1997
Proceedings: Order sent out. (re: rulings on motions to strike; amended petitions to be filed within 15 days)
Date: 08/18/1997
Proceedings: Notice of Service of Respondent`s First Interrogatories to Petitioners filed.
Date: 08/13/1997
Proceedings: Petitioners` Objection to Interrogatory; Petitioners` Motion for Protective Order (filed via facsimile).
Date: 07/28/1997
Proceedings: (Mary Jane Angel) Notice of Appearance filed.
Date: 07/21/1997
Proceedings: (From S. Mutch) Notice of Scheduling filed.
Date: 07/17/1997
Proceedings: Notice of Service of Respondent`s First Set of Interrogatories to Petitioners; (6) Respondent`s First Request to Produce (filed via facsimile).
Date: 07/09/1997
Proceedings: Order sent out. (hearing set for 2 days, Oct. 1-2, 1997)
Date: 07/07/1997
Proceedings: Petitioners` Objection to Joint Response to Initial Order; Petitioners` Objection to City of Gainesville`s Motion for Summary Hearing filed.
Date: 07/02/1997
Proceedings: Order of Prehearing Instructions sent out.
Date: 07/02/1997
Proceedings: Notice of Hearing sent out. (Cases Consolidated are: 97-002845 & 97-002846; Hearing set for 10/1/97; 10:00am; Gainesville) . CONSOLIDATED CASE NO - CN002730
Date: 06/30/1997
Proceedings: St. Johns River Water Management District`s Motion to Strike; Joint Response to Initial Order (filed via facsimile).
Date: 06/19/1997
Proceedings: Initial Order issued.
Date: 06/13/1997
Proceedings: Notice of Transcription; Notice; Petition for Initiation of Formal Proceedings (exhibits); Agency Action Letter filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
06/13/1997
Date Assignment:
06/19/1997
Last Docket Entry:
07/12/2004
Location:
Gainesville, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
 

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Related Florida Statute(s) (3):

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