01-000014 Wayne Duke Sr. And Phyllis Duke vs. Suwannee River Water Management District Status: Closed Recommended Order on Monday, August 20, 2001.

Summary: Petitioner did not obtain a permit before building in the flood zone of the Suwannee River. Evidence presented dictates that an after-the-fact permit should not be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAYNE DUKE, SR., AND PHYLLIS )

DUKE, )

)

Petitioners, )

)

vs. ) Case No. 01-0014

)

SUWANNEE RIVER WATER MANAGEMENT )

DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

Don W. Davis, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in this

case on August 1, 2001, in Live Oak, Florida. The following

appearances were entered:

APPEARANCES

For Petitioner : John L. Scott, Esquire

Post Office Box 475

Branford, Florida 32008

For Respondent : Bruce W. Robinson, Esquire

Kris B. Robinson, Esquire

Brannon, Brown, Haley,

Robinson & Bullock, P.A.

Post Office Box 1029

Lake City, Florida 32056-1029

STATEMENT OF THE ISSUE

The issue is whether Petitioners are entitled to an

after-the-fact permit from Respondent for the garage and storage

building erected by Petitioners within the floodway of the

Suwannee River.

PRELIMINARY STATEMENT

On April 2, 1999, Petitioners filed an application for a

boat ramp with Respondent, Suwannee River Water Management

District (District). That permit was ultimately granted. In

April of 1999, personnel employed by Respondent went to the site

and observed there was no garage and storage structure built on

the lot. A copy of Respondent's rules was provided to

Petitioners.

In 1999, Petitioners started and completed a garage and

storage structure on their lot on the Suwannee River. They

received a Notice of Violation dated April 18, 2000.

On June 19, 2000, Petitioners prepared a Notice of Intent

to construct a surface water management system, which was

received by Respondent on July 3, 2000. Respondent did not send

a denial in response to this Notice, electing instead to

institute a timely action in the circuit court pursuant to

authority contained in Chapter 373, Florida Statutes.

At the final hearing, Petitioner, Wayne Duke, Sr.,

testified on his own behalf and presented the testimony of two

witnesses. Petitioner also offered ten exhibits which were

accepted into evidence. Respondent presented the testimony of

three witnesses and 11 exhibits. No transcript of the final

hearing was ordered. Both parties have submitted Proposed

Recommended Orders. Those Proposed Recommended Orders have been

reviewed and utilized in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Petitioners are the owners of real property located at

Lot 15, Suwannee Bluffs as per Plat Book 4, page 18 of the

public records of Lafayette County, Florida.

2. Respondent, Suwannee River Water Management District,

is an agency of the State of Florida with a responsibility for

surface water management within the District.

3. Petitioners live in a home on their Suwannee River

property and, in 1999, completed a garage and storage structure

on the property without obtaining a permit for construction of

the structure. The structure measures 35 feet by 50 feet. It

is a concrete block structure on a concrete slab with a metal

roof. There are three doors on one side of the structure. The

remainder of the structure is enclosed.

4. On or about March 31, 1999, Petitioners, prior to

construction of the garage and storage structure, applied for an

environmental resource permit for a boat ramp, which permit was

subsequently granted.

5. The entire lot of Petitioners is within the floodway of

the Suwannee River. The floodway is defined as a work of

Respondent's district in Rule 40B -4.3000, Florida Administrative

Code.

6. The Suwannee River flows within the boundaries of the

Suwannee River Management District.

7. On or about April 18, 2000, Notice of Violation was

sent to Petitioners by Respondent.

8. On or about June 19, 2000, Petitioners executed a

Notice of Intention to construct a surface water management

system for the already completed garage structure. Basically,

the surface water management system envisioned by Petitioners

would have consisted of modifications to the already completed

garage to permit flood waters to flow through the structure.

Respondent did not send any responsive formal notice of denial

to Petitioners regarding such proposed intention. Instead,

Respondent filed a lawsuit in July of 2000, within the 90-day

period required by Section 120.60(1), Florida Statutes, in

circuit court against Petitioners to prevent the construction of

the system. Such action by Respondent constituted denial of

Petitioners' requested action.

9. Petitioners' garage construction was in violation of

Ordinance 1 -87 of Lafayette Cou nty, Florida, and in fact,

Petitioners received a Notice of Violation from Lafayette

County, Florida, dated December 9, 1999, which has still not

been resolved.

10. Rule 40B -4.3040, Florida Administrative Code,

prohibits the placing of a structure in the works of a District

without a works of the District development permit.

Petitioners' garage structure was not permitted and was in

violation of the rules of the District in force and effect at

the time of its construction, notwithstanding Respondent's

informal delegation of enforcement of those rules to local

county governments in Respondent's district prior to July 1999.

11. Rule 40B -4.3030 Florida Administrative Code,

proscribes the issuance of a works of the District's development

permit for any work structures, road, or other facilities which

have the potential of individually or cumulatively reducing

floodway conveyance or increasing water surface elevations above

the 100-year flood elevation or increasing soil erosion.

Testimony of two experts offered by Respondent at the final

hearing establishes that the structure in question will

cumulatively reduce floodway conveyance and increase water

surface elevations above the 100 year flood elevations and

potentially increase soil erosion. Adverse impacts to the

public interest include the following:

(a ) increased flood levels;

(b ) increased scouring by debris and

erosion; and

(c ) increased water surface elevations

above the 100 year flood elevation.

12. The cumulative impact of allowing Petitioners'

structure and other structures would magnify the problems of

increased erosion, debris damage, and floodway conveyance. The

cumulative impact from such construction along the water could

have significant cumulative adverse impact on the waters of the

State of Florida and specifically, the Suwannee River.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1) and

Section 120.569, Florida Statutes.

14. The burden of proof, absent a statutory directive to

the contrary, is on the party seeking the affirmative of the

issue of the proceeding. Department of Transportation v. J.W.C.

Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

15. In this proceeding, Petitioners have the ultimate

burden of proof and have failed to meet this burden.

Petitioners' contend that the failure of Respondent to issue a

specific denial to them with regard to their application to

construct a surface water management system consisting of

modifications to the unpermitted garage structure resulted in

granting of permission to Petitioners by default pursuant to

Section 120.60, Florida Statutes. Such contention is not

persuasive. Respondent's disapproval was adequately

communicated to Petitioners via the circuit court action

instituted to prevent Petitioners' project.

16. Petitioners failed to establish they were not in

violation at the time of application for an Environmental

Resource Permit (ERP) and that they did apply for an ERP.

Further, Respondent's permitting process requires Petitioners to

prove that the subject structure would not have the potential of

individually or cumulatively reducing floodway conveyance or

increasing water surface elevation above the 100-year flood

elevation or increasing soil erosion. This Petitioners failed

to do.

17. The property of Petitioners is within the floodway of

the Suwannee River and, therefore, a work of the District. A

works of the development district permit would be required for

construction of the building at hand which has never been

issued. The structure is in violation of Rule 40B -4.3040,

Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Suwannee River Water Management

District enter a Final Order dismissing the petition in this

case and denying the issuance of an after-the-fact works of the

District permit to Petitioners.

DONE AND ENTERED this 20th day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of August, 2001.

COPIES FURNISHED :

Bruce W. Robinson, Esquire

Kris B. Robinson, Esquire

Brannon, Brown, Haley,

Robinson & Bullock, P.A.

Post Office Box 1029

Lake City, Florida 32056-1029

John L. Scott, Esquire

Post Office Box 475

Branford, Florida 32008

Jerry Scarborough, Executive Director

Suwannee River Water Management District

9225 County Road 49

Live Oak, Florida 32060

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.