01-004250 Shirley B. Haynes vs. Kgb Lake Howell, Llc, And St. Johns River Water Management District
 Status: Closed
Recommended Order on Friday, March 29, 2002.


View Dockets  
Summary: Applicant for stormwater surface management system approved; mitigation plan adequate; issue of apartment density approved by City non-jurisdictional.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SHIRLEY B. HAYNES and )

13EGERTON K. VAN DEN BERG, )

19)

20Petitioners, )

22)

23vs. ) Case Nos. 01 - 4250

30) 01 - 4545

34ST. JOHNS RIVER WATER )

39MANAGEMENT DISTRICT and )

43KGB LAKE HOWELL, LLC, )

48)

49Respondents. )

51_________________________ _____)

53RECOMMENDED ORDER

55Pursuant to notice, these matters were heard before the

64Division of Administrative Hearings by its assigned

71Administrative Law Judge, Donald R. Alexander, on January 29,

8030, and 31, 2002, in Orlando, Florida.

87APPEARANCES

88For Pe titioner: Shirley B. Haynes, pro se

962764 Lake Howell Road

100Winter Park, Florida 32792 - 5725

106For Petitioner: Egerton K. van den Berg, pro se

1151245 Howell Point

118Winter Park, Florida 32792 - 5706

124For Respondent: Meredith A. Harper, Esquire

130(Applicant) Michael L. Gore, Esquire

135Kenneth W. Wright, Esquire

139Shutts & Bowen

142Post Office Bo x 4956

147Orlando, Florida 32802 - 4956

152For Respondent: Charles A. Lobdell, III, Esquire

159(District) Thomas I. Mayton, II, Esquire

165St. Johns River Water Management District

171Po st Office Box 1429

176Palatka, Florida 32178 - 1429

181STATEMENT OF THE ISSUE

185The issue is whether an Environmental Resource Permit

193should be issued to KGB Lake Howell, LLC, authorizing the

203construction of a surface water management system to serve an

213apartment complex known as the Estates at Lake Howell in the

224City of Casselberry, Florida.

228PRELIMINARY STATEMENT

230This matter began on September 18, 2001, when Respondent,

239St. Johns River Water Management District, issued its Written

248Notice of Intended District Decision on Permit Application 40 -

258117 - 71671 - 1 authorizing Respondent, KGB Lake Howell, LLC, to

270construct a stormwater management system for an apartment

278complex in the City of Casselberry, Florida. On October 11,

2882001, Petitioners, Shirl ey B. Haynes and Egerton K. van den

299Berg, who reside near the project, submitted a joint letter

309requesting an administrative hearing to contest the issuance

317of the permit. In addition, Haynes submitted a separate

326letter the same date requesting that her l etter be treated as

338a petition for an administrative hearing. The latter letter

347was forwarded to the Division of Administrative Hearings on

356October 30, 2001, with a request that an Administrative Law

366Judge be assigned to conduct a hearing. That matter wa s

377assigned Case No. 01 - 4250. Thereafter, both Petitioners filed

387an Amended Petition for Administrative Proceeding on November

39519, 2001. The Amended Petition was forwarded to the Division

405of Administrative Hearings on November 26, 2001, and has

414been ass igned Case No. 01 - 4545. By Order dated December 12,

4272001, the two cases were consolidated.

433By Notice of Hearing dated November 14, 2001, a final

443hearing was scheduled on January 9 and 10, 2002, in Orlando,

454Florida. At the request of Shirley B. Haynes, th e hearing was

466continued to January 29 - 31, 2002, at the same location.

477At the final hearing, Petitioners both testified on their

486own behalf and offered Petitioners' Exhibits 1 - 3, 5A - C, 6 - 8,

50113, 41, 46A - C, and 51 - 54. All were received in evidence

515except Exh ibits 5A - C. Respondent, KGB Lake Howell, LLC,

526presented the testimony of Jeffrey D. Einhouse, a professional

535engineer accepted as an expert; Kimberly M. Allerton, an

544environmental consultant accepted as an expert; and Robert R.

553Russell, a professional eng ineer accepted as an expert. Also,

563it offered Applicant's Exhibits 2 - 4, 6A and B, 8, 9A - C, 10,

57814A - D, 17, and 35. All were received in evidence.

589Respondent, St. Johns River Water Management District,

596presented the testimony of James Hollinghead, a hydro logist

605accepted as an expert; Rod Pakzadian, a professional engineer

614accepted as an expert; and Timothy Wetzel, a regulatory

623scientist accepted as an expert. Also, it offered District

632Exhibits 1 - 16, which were received in evidence. Finally, the

643undersign ed took official recognition of the St. Johns River

653Water Management District Applicant's Handbook for Management

660and Storage of Surface Waters, and Chapters 40C - 4, 40C - 40, and

67440C - 42, Florida Administrative Code.

680The Transcript of the hearing (five volume s) was filed on

691February 13, 2002. At the request of Petitioners, the time

701for filing proposed findings of fact and conclusions of law

711was extended to March 1, 2002. The same were timely filed by

723the parties, and they have been considered by the undersig ned

734in the preparation of this Recommended Order.

741FINDINGS OF FACT

744Based upon all of the evidence, the following findings of

754fact are determined:

757A. Background

7591. In this proceeding, Respondent, St. Johns River Water

768Management District (District), p roposes to issue an

776Environmental Resource Permit to Respondent, KGB Lake Howell,

784LLC (Applicant), authorizing the construction of a stormwater

792management system to serve a 240 - unit apartment complex known

803as the Estates of Lake Howell. The project will b e located on

816an undeveloped tract of land in the City of Casselberry

826(City), Seminole County, Florida, just north of the Orange

835County line. It will include ten three - story buildings,

845parking, clubhouse/ administration building, amenity complex,

851and wet d etention pond.

8562. The project also incorporates a 3.62 - acre stormwater

866pond, now owned and used by Seminole County (County), lying

876east of Lake Ann Lane across from the project site, which was

888included in the overall acreage calculations for the purpose

897of increasing apartment density on the site. The Applicant

906has authorization from the County to apply for the permit

916incorporating that tract of land. The pond will continue to

926function as a stormwater facility for the County and will not

937accommodate st ormwater from the project site.

9443. The project site consists of 38.9 acres located on

954the north side of Howell Branch Road, east of State Road 436

966(also known as Semoran Boulevard), and west of Lake Ann Lane

977in the City. The site is currently undeveloped and includes

987an abandoned orange grove and upland pine flatwoods community,

996which make up approximately 14.6 acres, while the remaining

100524.3 acres is a mixed forested wetland system. The property

1015is now owned by the Harold Kasik Living Trust (Kasik

1025prope rty), which has a contract for purchase with the

1035Applicant.

10364. The Kasik property is in the shape of a rectangle,

1047648 feet by 2,530 feet, with its long sides running north -

1060south. It is bordered on the north and east by single - family

1073residential and vac ant land, to the south by commercial

1083development, and to the west by high - density residential and

1094commercial development. The property has a high elevation of

1103approximately 83 feet on its southeastern corner and falls to

1113the north/northeast, where the edge of the wetland system is

1123at an elevation of 63 or 64 feet.

11315. The major development constraint on the site is the

1141large wetland tract on the northern portion of the property.

1151In order to minimize proposed impacts to the wetlands, the

1161Applicant propose d the transfer of the development

1169entitlements from the County land to benefit the Applicant's

1178property. More specifically, the Applicant will acquire the

1186County property, the Applicant will simultaneously grant a

1194perpetual drainage easement over the prop erty to the County,

1204the Applicant will maintain the landscaping of the property in

1214perpetuity, the Applicant will convey around five acres of

1223wetlands on the northern end of the Kasik property to the

1234County in fee simple, and the City will allow the transf er of

1247development rights from the property.

12526. The project will adversely impact 0.99 acres of low -

1263quality wetlands, of which 0.72 acres are to be dredged and

12740.27 acres are to be filled to provide the fencing around the

1286wet detention facility. To offset this impact, the Applicant

1295proposes to preserve 17.8 acres of forested wetlands, plus 1.2

1305acres of forested uplands, or a mitigation ratio of 18:1. The

1316District's guidelines for preservation mitigation applicable

1322to this project are 10:1 to 60:1 for wetl and impacts and 3:1

1335to 20:1 for upland impacts; thus, the mitigation plan falls

1345within these guidelines.

13487. Under current conditions, stormwater runoff from the

1356project site sheet flows into the on - site wetland and

1367ultimately Lake Howell (the Lake), a Cla ss III water body

1378which meets all applicable water quality standards and is not

1388an Outstanding Florida Water. After development occurs,

1395stormwater from the developed portions of the property will be

1405conveyed to a wet detention pond for required water qual ity

1416treatment and peak discharge rate attenuation. After

1423treatment in the detention pond, the water will discharge to

1433the on - site wetland, as it does now, and eventually will be

1446conveyed into the Lake. Off - site flows will continue to be

1458conveyed into the on - site wetland.

14658. The wet detention pond, which has a minimum depth of

1476twelve feet and a permanent pool of water with a mean depth of

1489two to eight feet, has been designed to accommodate a 25 - year,

150224 - hour storm. Post - development discharge will be les s than

1515pre - development, and the outfall structure has been designed

1525to avoid channelization in the wetlands after the point of

1535discharge.

15369. Since at least the late 1940's, Petitioner, Shirley

1545B. Haynes, or her relatives, have owned, or resided on, a

1556mult i - acre tract of land just north of the project site at

15702764 Lake Howell Lane. She has substantial frontage on the

1580south side of the Lake. The southern portion of her property,

1591which are wetlands, adjoins the northern boundary of the

1600project site. For th e past three years, Petitioner, Egerton

1610K. van den Berg, has resided on a ten - acre tract of land at

16251245 Howell Point, which is northeast of the project site. He

1636has approximately 235 feet of frontage on the south side of

1647the Lake.

164910. As argued in the ir Proposed Recommended Order,

1658Petitioners generally contend that the application is

"1665materially deficient" in several respects in violation of

1673Rule 40C - 4.101; that the Applicant has failed to satisfy Rule

168540C - 4.301(1)(c) and (d), which in turn constitutes a failure

1696to meet the requirements of Rule 40C - 4.302(1)(a) - (c); that the

1709Applicant failed to satisfy the criteria in Sections

171712.2.3(a) - (f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a) - (e),

172612.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the

1734Applicant's Ha ndbook: Management and Storage of Surface Waters

1743(Applicant's Handbook); that the District did not adequately

1751consider the cumulative impacts of the project as required by

1761Section 373.414(8)(a), Florida Statutes; that a low flow

1769analysis of the Lake was no t performed, as required by Rule

178140C - 8.011(5); that the Applicant did not submit detailed

1791mitigation plans as required by Section 12.3.3.2 of the

1800Applicant's Handbook; that the 18:1 ratio for mitigation

1808proposed by the Applicant is inappropriate; and that the

1817District should not approve the density of the apartments

1826established by the City. These concerns, to the extent they

1836have been identified as issues in the parties' Pre - Hearing

1847Stipulation, are addressed in the findings below. Where

1855contentions have been raised by Petitioners, such as the

1864placement of the detention pond over a depressional area, and

1874they have not been argued in the Proposed Recommended Order,

1884they have been deemed to be abandoned.

1891B. Conditions for issuance of permits

189711. Rule 40C - 4.301(1)(a) - (k), Florida Administrative

1906Code, specifies eleven substantive requirements for which

1913reasonable assurance must be given in order for a standard

1923permit to be issued. Subsection (3) of the same Rule provides

1934that the standards and criteria con tained in the Applicant's

1944Handbook shall determine whether the foregoing reasonable

1951assurances have been given. Additional conditions for the

1959issuance of a permit are found in Rule 40C - 4.302(1) when the

1972project, or any part of it, is located in, on, or ov er

1985wetlands or other surface waters. Therefore, because a part

1994of the Applicant's system will be located in wetlands, the

2004Applicant must also give reasonable assurance that the project

2013will not be contrary to the public interest, and that it will

2025not caus e unacceptable cumulative impacts upon the wetlands or

2035surface waters.

2037a. Rule 40C - 4.301

204212. Paragraphs (a) - (c) of the Rule require that an

2053applicant provide reasonable assurance that the project will

2061not cause adverse water quantity impacts to receivin g waters

2071and adjacent lands, adverse flooding to on - site or off - site

2084property, or adverse impacts to existing surface water storage

2093and conveyance capabilities.

209613. If a system meets the requirements of Section

210510.2.1(a) through (d) of the Applicant's H andbook, there is a

2116presumption that the system complies with the requirements of

2125Paragraphs (a) through (c). This presumption has been met

2134since the evidence supports a finding that the post -

2144development peak rate of discharge will be lower than the pre -

2156d evelopment peak rate of discharge for a 24 - hour, 25 - year

2170storm event. Therefore, the Applicant's system meets the

2178requirements of these Paragraphs.

218214. Paragraph (d) of the Rule requires that an applicant

2192give reasonable assurance that the project "wil l not adversely

2202impact the value of functions provided to fish and wildlife

2212and listed species by wetlands and other surface waters." To

2222satisfy this requirement, an applicant must also demonstrate

2230compliance with the two - prong test in Sections 12.2.2 and

224112.2.2.4 of the Applicant's Handbook.

224615. Section 12.2.2 requires that an applicant provide

2254reasonable assurance that a regulated activity will not impact

2263the values of wetlands and other surface water functions so as

2274to cause adverse impacts to the ab undance, diversity, and

2284habitat of fish, wildlife, and listed species. In its

2293proposal, the Applicant proposes to fill a total of 0.99 acres

2304of wetlands. Since these impacts will eliminate the ability

2313of the filled part of the on - site wetland to provide functions

2326to fish and wildlife, the filling will cause adverse impacts.

2336Under these circumstances, Section 12.2.1.1 requires that the

2344Applicant either implement practicable design modifications to

2351reduce or eliminate these adverse impacts or meet one of t he

2363exceptions under Section 12.2.1.2.

236716. Under Section 12.2.1.1, a proposed modification

2374which is not technically capable of being done, is not

2384economically viable, or which adversely affects public safety

2392through the endangerment of lives or property is not

2401considered practicable.

240317. The Applicant’s design for the proposed project went

2412through a number of iterations prior to submittal to the

2422District to reduce adverse impacts to the wetlands. During

2431the permitting process, the District requested th at the

2440Applicant consider a number of other suggestions to reduce or

2450eliminate the adverse impacts to wetlands such as adding a

2460fourth floor to the apartment buildings to eliminate the need

2470for one apartment building, building a parking garage for the

2480tena nts, and eliminating the tennis and volleyball courts.

2489Because the Applicant provided detailed reasons why none of

2498those suggestions were practicable, it was not required to

2507implement any of those design modifications. In addition, the

2516Applicant’s decisi on not to include a littoral zone around the

2527stormwater pond did not increase the amount of wetland impacts

2537as that engineering decision resulted in a stormwater pond

2546that was simply deeper and not wider. Therefore, the

2555Applicant has met the requirement t o reduce or eliminate

2565adverse wetland impacts.

256818. Section 12.2.1.1 only requires an elimination and

2576reduction analysis when: (1) a proposed system will result in

2586adverse impacts to wetland functions and other surface water

2595functions so that it does not meet the requirements of

2605Sections 12.2.2 through 12.2.3.7, or (2) neither one of the

2615two exceptions within Section 12.2.1.2 applies.

262119. In determining whether one of the two exceptions in

2631Section 12.2.1.2 applies, the District must evaluate the long -

2641te rm ecological value of the mitigation proposed by the

2651Applicant. If the mitigation is not adequate to offset the

2661adverse impacts of the proposed system, then it is unlikely

2671either exception in Section 12.2.1.2 will apply.

267820. As noted above, the Applica nt’s proposed dredging

2687and filling of the southern edge of the wetlands on the

2698project site will eliminate the ability of that wetland area

2708to provide functions to fish and wildlife. However, the

2717Applicant’s mitigation plan of placing 17.8 acres of wetlan ds

2727and 1.2 acres of uplands under a conservation easement to

2737preserve that property in its natural state in perpetuity will

2747fully replace the types of functions that the part of the

2758wetlands proposed to be impacted provides to fish and

2767wildlife. The mitig ation plan will also offset the adverse

2777impacts that this project will have on the value and functions

2788provided to fish and wildlife by the impacted part of the

2799wetlands.

280021. In this case, the first exception under Section

280912.2.1.2(a) applies as it meets that Section's two

2817requirements: the ecological value of the functions provided

2825by the area of wetland to be adversely affected is low, and

2837the proposed mitigation will provide greater long - term

2846ecological value than the area or wetland to be adversely

2856aff ected.

285822. Also, the quality of the wetland to be impacted is

2869low. All of the proposed impacts will occur in the area of

2881the wetland that was historically disturbed and in which

2890nuisance and exotic species are prevalent. Due to nuisance

2899and exotic vege tation, the ecological value provided by that

2909area to wildlife is low.

291423. The mitigation for the proposed project will provide

2923greater long - term ecological value to fish and wildlife than

2934the part of the wetland proposed to be impacted because the

2945propo sed mitigation will preserve eighteen times more wetlands

2954that are of higher quality and provide greater value than the

2965wetland area to be impacted. The type of wetland to be

2976preserved, a mixed forested wetland containing hardwoods, is

2984rare for the area.

298824. Although the mitigation plan will provide greater

2996long - term ecological value to fish and wildlife than the part

3008of the wetland proposed to be impacted, the Applicant did not

3019meet the second exception in the elimination and reduction

3028rule under Section 12.2.1.2(b) because the wetlands to be

3037preserved are not regionally significant.

304225. In addition to meeting the elimination and reduction

3051rule through implementation of practicable design

3057modifications, the Applicant also satisfied the same rule by

3066meet ing the first exception found in Section 12.2.1.2(a).

3075Thus, the Applicant has satisfied Section 12.2.2, which is the

3085first prong of the test to determine compliance with Paragraph

3095(d).

309626. The second prong of the test to determine whether

3106Paragraph (d) o f the Rule has been satisfied is found in

3118Section 12.2.2.4. That Section requires that an applicant

3126give reasonable assurance that the activity will not change

3135the hydroperiod of a wetland so as to affect wetland

3145functions. For the following reasons, t hat prong of the test

3156has been satisfied. Since the wetlands are primarily

3164groundwater - influenced, the construction of the stormwater

3172pond between the project and the wetlands will not adversely

3182affect the wetlands. As the soils surrounding the pond are

3192very porous with a high infiltration and percolation rate,

3201water from the stormwater pond will still reach the wetlands

3211through lateral seepage.

321427. Further, the Applicant will install an energy

3222dissipating device on the outfall spout at the point of

3232disc harge so that water will be spread out from the stormwater

3244pond as it discharges into the receiving wetlands. As noted

3254earlier, this will prevent an adverse channelization effect.

326228. Finally, stormwater runoff from the surrounding

3269basins that current ly discharge into the wetlands will not be

3280affected by the construction of the stormwater system. That

3289runoff will continue to flow into the wetlands on the project

3300site.

330129. Because the Applicant has satisfied Sections 12.2.2

3309and 12.2.2.4, Paragraph (d ) of the Rule has been met.

332030. Paragraph (e) of the Rule generally requires that an

3330applicant provide reasonable assurance that a project will not

3339adversely affect the quality of receiving waters. Here, the

3348Applicant has provided such assurance. This is because the

3357system has been designed in accordance with all relevant

3366District criteria. Also, the Applicant has proposed to revise

3375Permit Condition 26 as follows:

3380Condition 26. This permit authorizes

3385construction and operation of a surface

3391water manag ement system as shown on the

3399plans received by the District on June 14,

34072001, and as amended by plan sheet C4

3415(Sheet 07 of 207) received by the District

3423on January 23, 2002.

3427In view of this revision, the Applicant's wet detention

3436system complies with all of the design criteria contained in

3446Rule 40C - 42.026(4).

345031. Under Rule 40C - 42.023(2)(a), compliance with the

3459design criteria contained in Rule 40C - 42.026 creates a

3469presumption that state water quality standards, including

3476those for Outstanding Florida Wa ters, will be met. This

3486presumption has not been rebutted; therefore, the requirements

3494of Paragraph (e) of the Rule have been satisfied.

350332. Further, S ections 12.2.4.1 and 12.2.4.2 state, in

3512part, that reasonable assurance regarding water quality must

3520be provided both for the short term and the long term,

3531addressing the proposed construction, alteration, operation,

3537maintenance, removal, and abandonment of the system. The

3545Applicant has provided reasonable assurance that this

3552requirement is met through t he design of its surface water

3563management system, its long - term maintenance plan for the

3573system, and the long and short - term erosion and turbidity

3584control measures it proposes. If issued, the permit will

3593require that the surface water management system be

3601constructed and operated in accordance with the plans approved

3610by the District. The permit will also require that the

3620proposed erosion and turbidity control measures be

3627implemented.

362833. Section 12.2.4.5 does not apply because there are no

3638exceedances of any water quality standards at the proposed

3647receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not

3656apply because the Applicant has not proposed any docking

3665facilities or temporary mixing zones.

367034. Paragraph (f) of the Rule requires that an applic ant

3681not cause adverse secondary impacts to the water resources.

3690Compliance with this requirement is determined by applying the

3699four - part test in Section 12.2.7(a) through (d).

370835. As to Section 12.2.7(a), there are no secondary

3717impacts from construction, alteration, and intended or

3724reasonably expected uses of the proposed system that will

3733cause water quality violations or adverse impacts to the

3742wetland functions. The Applicant chose not to provide buffers

3751abutting the wetlands but rather chose measures o ther than

3761buffers to meet this requirement. The Applicant has provided

3770reasonable assurance that secondary impacts will not occur by

3779placing the stormwater pond between the planned project and

3788the wetlands, so that the pond itself will serve as a buffer

3800b y shielding the wetland from the lighting and noise of the

3812project, and by acting as a barrier to keep domestic animals

3823out of the wetlands. In addition, the Applicant increased the

3833amount of property to be preserved as mitigation by adding

38432.97 acres of wetlands and 1.2 acres of uplands to the

3854mitigation plan to mitigate for any remaining secondary

3862impacts. Accordingly, the first part of the secondary impacts

3871test in Section 12.2.7(a) is satisfied.

387736. As to Section 12.2.7(b), because there is no

3886eviden ce that any aquatic or wetland - dependent listed animal

3897species use uplands for existing nesting or denning adjacent

3906to the project, the second part of the test has been met. No

3919adverse secondary impacts will occur under the third part of

3929the test in Secti on 12.2.7(c) because the proposed project

3939will not cause impacts to significant historical or

3947archaeological resources. Finally, adverse secondary impacts

3953as proscribed by Section 12.2.7(d) will not occur because no

3963evidence was presented that there would be additional phases

3972or expansion of the proposed system or that there are any

3983onsite or offsite activities that are closely or causally

3992linked to the proposed system. Therefore, the proposed

4000project satisfies Paragraph (f) of the Rule.

400737. Paragraph (g) of the Rule requires that an applicant

4017provide reasonable assurance that a project will not adversely

4026impact the maintenance of surface or ground water levels or

4036surface water flows established in Chapter 40C - 8. Minimum

4046(but not maximum) surface water levels have been established

4055for the Lake pursuant to Chapter 40C - 8 for the basin in which

4069the project is located. The project will not cause a decrease

4080of water to, or cause a new withdrawal of water from, the

4092Lake. Therefore, the project satisfies thi s requirement.

410038. Finally, Petitioners have acknowledged in their

4107Proposed Recommended Order that the Applicant has given

4115reasonable assurance that the requirements of Paragraphs (h),

4123(i), (j), and (k) have been met. The parties have also

4134stipulated tha t the receiving water (Lake Howell) meets all

4144Class III water quality standards. Therefore, the project

4152satisfies the requirements of Subsection 40C - 4.301(2).

4160c. Rule 40C - 4.302 - Public Interest Test

416939. Under Rule 40C - 4.302(1)(a)1. - 7., an applicant m ust

4181provide reasonable assurance that the parts of its surface

4190water management system located in, on, or over wetlands are

4200not contrary to the public interest. Similar requirements are

4209found in Section 12.2.3.

421340. The Applicant has provided reasonable assurance that

4221the parts of the project that are located in, on, or over

4233wetlands (mainly the detention pond and fill) are not contrary

4243to the public interest, because the evidence showed that all

4253seven of the public interest factors to be balanced are

4263ne utral. Because the proposed permanent mitigation will

4271offset the project’s adverse impacts to wetlands, no adverse

4280effects to the conservation of fish and wildlife due to the

4291project’s permanent nature will occur. The evidence also

4299showed that best manag ement practices and erosion control

4308measures will ensure that the project will not result in

4318harmful erosion or shoaling. Further, it was demonstrated

4326that the project will not adversely affect the flow of water,

4337navigation, significant historical or arch aeological

4343resources, recreational or fishing values, marine

4349productivity, or the public health, safety, welfare or

4357property of others. Finally, the evidence showed that the

4366project’s design, including permanent mitigation, will

4372maintain the current condi tion and relative value of functions

4382performed by parts of the wetland proposed to be impacted.

4392Therefore, the project meets the public interest criteria

4400found in Rule 40C - 4.302(1)(a).

4406d. Rule 40C - 4.302(1)(b) - Cumulative Impacts

441441. Rule 40C - 4.302(1)(b ) and Section 12.2.8 require that

4425an applicant demonstrate that its project will not cause

4434unacceptable cumulative impacts upon wetlands and other

4441surface waters within the same drainage basin as the regulated

4451activity for which the permit is being sought. Under this

4461requirement, if an applicant proposes to mitigate the adverse

4470impacts to wetlands within the same drainage basin as the

4480impacts, and if the mitigation fully offsets these impacts,

4489the District will consider the regulated activity to have no

4499un acceptable cumulative impacts upon wetlands and other

4507surface waters.

450942. The Applicant has chosen to mitigate for the impacts

4519to 0.99 acres of wetlands by preserving 17.8 acres of wetlands

4530and 1.2 acres of uplands on - site. Since this mitigation will

4542occ ur in the same drainage basin as the impacts and the

4554mitigation fully offsets those impacts, the Applicant

4561satisfies the requirements of the Rule.

4567e. Rule 40C - 4.302 - Other Requirements

457543. The parties have stipulated that the requirements of

4584Paragraphs (c) and (d) of Rule 40C - 4.302(1) do not apply.

459644. There is no evidence that the Applicant has violated

4606any District rules or that it has been the subject of prior

4618disciplinary action. Therefore, the requirements of

4624Subsection (2) of the Rule have been met.

4632C. Miscellaneous Matters

4635a. County Pond Site

463945. The Seminole County pond site located on the east

4649side of Lake Ann Lane and across the street from the project

4661is not a jurisdictional wetland and does not have any wetland

4672indicators. It is classif ied as an upland cut surface water.

468346. The Applicant is not proposing to impact any

4692wetlands at the pond site, and the site is not part of the

4705proposed mitigation plan for the project.

471147. The permit in issue here is not dependent on the

4722pond site, an d nothing in the application ties the project

4733with that site. Indeed, the transfer of density rights from

4743the County property is not relevant to the District permitting

4753criteria.

4754b. Review of Application

475848. When the decision to issue the permit was m ade, the

4770District had received all necessary information from the

4778Applicant to make a determination that the project met the

4788District's permitting criteria. While certain information may

4795have been omitted from the original application, these items

4804were ei ther immaterial or were not essential to the permitting

4815decision.

481649. The application complies with all District

4823permitting criteria. Contrary to Petitioners' contention, the

4830Applicant does not have to be the contract purchaser for

4840property in order to submit an application for that property.

4850Rather, the District may review a permit application upon

4859receipt of information that the applicant has received

4867authorization from the current owners of the property to apply

4877for a permit. In this case, the Appl icant has the permission

4889of the current owners (the Harold Kasik Living Trust).

4898CONCLUSIONS OF LAW

490150. The Division of Administrative Hearings has

4908jurisdiction over the subject matter and the parties hereto

4917pursuant to Sections 120.569 and 120.57(1), Fl orida Statutes.

492651. As the applicant in this cause, KGB Lake Howell,

4936LLC, bears the burden of showing by a preponderance of the

4947evidence that it is entitled to the requested permit. See ,

4957e.g. , Cordes v. State, Dep't of Envir. Reg. , 582 So. 2d 652,

4969654 (Fla. 1st DCA 1991). The applicant's burden is one of

"4980reasonble assurances, not absolute guarantees." Manasota - 88,

4988Inc. v. Agrico Chemical Co. , 12 F.A.L.R. 1319, 1325 (Dep't of

4999Envir. Reg. 1990), aff'd 576 So. 2d 781 (Fla. 2d DCA 1991).

5011This means that the applicant must establish "a substantial

5020likelihood that the project will be successfully implemented,"

5028Metro Dade County v. Coscan Fla., Inc. , 609 So. 2d 644, 648

5040(Fla. 3d DCA 1992). This standard does not require an

5050absolute guarantee that a violat ion of a rule is a scientific

5062impossibility, only that its non - occurrence is reasonably

5071assured by accounting for reasonably forseen scientific

5078contingencies. Ginnie Springs, Inc. v. Watson , 21 F.A.L.R.

50864072, 4080 (Dep't of Envir. Prot. 1999).

509352. By a p reponderance of the evidence, the Applicant

5103has provided reasonable assurance that the applicable

5110requirements of the District's rules have been met and that a

5121standard Environmental Resource Permit should be issued to the

5130Applicant with the conditions pro posed by the District in the

5141draft permit dated October 8, 2001, with the modification to

5151Condition 26 referred to above.

5156RECOMMENDATION

5157Based on the foregoing Findings of Fact and Conclusions

5166of Law, it is

5170RECOMMENDED that the St. John s River Water Management

5179District enter a final order granting the requested permit as

5189described above.

5191DONE AND ENTERED this 29th day of March, 2002, in

5201Tallahassee, Leon County, Florida.

5205___________________________________

5206DONALD R. ALEXANDER

5209Administrative Law Judge

5212Division of Administrative Hearings

5216The DeSoto Building

52191230 Apalachee Parkway

5222Tallahassee, Florida 32399 - 3060

5227(850) 488 - 9675 SUNCOM 278 - 9675

5235Fax Filing (850) 921 - 6847

5241www.doah.state.fl.us

5242Filed with the Clerk of the

5248Division of Administrative Hearings

5252this 29th day of March, 2002.

5258COPIES FURNISHED:

5260Kirby B. Green, III, Executive Director

5266St. Johns River Water Management District

5272Post Office Box 1429

5276Palatka, Florida 321 78 - 1429

5282Shirley B. Haynes

52852764 Lake Howell Road

5289Winter Park, Florida 32792 - 5725

5295Egerton K. van den Berg

53001245 Howell Point

5303Winter Park, Florida 32792 - 5706

5309Charles A. Lobdell, III, Esquire

5314St. Johns River Water Management District

5320Post Office Box 1429

5324P alatka, Florida 32178 - 1429

5330Meredith A. Harper, Esquire

5334Shutts & Bowen

5337Post Office Box 4956

5341Orlando, Florida 32802 - 4956

5346NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5352All parties have the right to submit written exceptions within

536215 days of the date of this Rec ommended Order. Any exceptions

5374to this Recommended Order should be filed with the agency that

5385will render a final order in this matter.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/31/2003
Proceedings: Order from the District Court of Appeal: "Appellant`s Notice of Voluntary Dismissal filed 3/3/03, is approved."
PDF:
Date: 06/06/2002
Proceedings: Designation to Reporter and Reporter`s Acknowledgment filed by Petitioners.
PDF:
Date: 06/06/2002
Proceedings: Directions to Clerk filed by Petitioners.
PDF:
Date: 06/05/2002
Proceedings: Letter to DOAH from the District Court of Appeal filed. DCA Case No. 5D02-1616
PDF:
Date: 05/20/2002
Proceedings: Final Order filed.
PDF:
Date: 05/08/2002
Proceedings: Agency Final Order
PDF:
Date: 05/06/2002
Proceedings: Motion of Petitioners Egerton K. Van Den Berg and Shrley B. Haynes to Re-open Final Hearing for the Taking of Additional Testimony, and Motion to Stay Entry of a Final Order by the Governing Board of the St. Johns River Water Management District, in Order to Permit the Hearing Officer and the Governing Board to Consider Material Facts which were Withheld or Misrepresented During the Final Hearing Held January 29, 30 and 31, 2002 filed.
PDF:
Date: 04/23/2002
Proceedings: Respondent KGB Lake Howell, LLC`S Response to Petitioner`s Exceptions to Proposed Order filed.
PDF:
Date: 03/29/2002
Proceedings: Recommended Order
PDF:
Date: 03/29/2002
Proceedings: Recommended Order issued (hearing held January 29-31, 2002) CASE CLOSED.
PDF:
Date: 03/29/2002
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 03/01/2002
Proceedings: Proposed Recommended Orderthe St. Johns River Water Management District filed.
PDF:
Date: 03/01/2002
Proceedings: Proposed Recommended Order of Respondent KGB Lake Howell, LLC filed.
PDF:
Date: 02/28/2002
Proceedings: Proposed Recommended Order of Petitioners Shirley B. Haynes and Egerton K. van Den Berg (filed via facsimile).
PDF:
Date: 02/22/2002
Proceedings: Letter to Judge Alexander from M. Harper requesting telephone conference regarding motion for extension of time (filed via facsimile).
PDF:
Date: 02/22/2002
Proceedings: Letter to Judge Alexander from E. van den Berg requesting extension of time to file proposed recommended order (filed via facsimile).
Date: 02/14/2002
Proceedings: Co-Respondent, KGB Lake Howell, LLC`s, Notice of Filing, Transcripts of Proceedings Volumes I-V filed.
PDF:
Date: 02/13/2002
Proceedings: Exhibits Admitted into Evidence Estates of Lake Howell Administrative Hearing DOAH Case No. 01-4250 filed.
Date: 01/29/2002
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 01/28/2002
Proceedings: Co-Respondent`s, KGB Lake Howell, LLC Motion to Compel Production of Documents filed.
PDF:
Date: 01/23/2002
Proceedings: Prehearing Stipulation (filed by Petitioners via facsimile).
PDF:
Date: 01/22/2002
Proceedings: Order issued (Respondent`s unopposed Motion for Official Recognition is granted).
PDF:
Date: 01/17/2002
Proceedings: St. Johns River Water Management District`s Motion for Official Recognition filed.
PDF:
Date: 01/17/2002
Proceedings: Notice of Appearance (filed by T. Mayton).
PDF:
Date: 01/09/2002
Proceedings: Amended Notice of Hearing issued. (hearing set for January 29 and 30, 2002; 8:30 a.m.; Orlando, FL, amended as to Room Location).
PDF:
Date: 01/07/2002
Proceedings: Co-Respondent KGB Lake Howell, LLC`s Notice of Taking Deposition Duces Tecum, S. Haynes filed.
PDF:
Date: 12/31/2001
Proceedings: Amended Notice of Hearing issued. (hearing set for January 29 and 30, 2002; 8:30 a.m.; Orlando, FL, amended as to Date).
PDF:
Date: 12/28/2001
Proceedings: Order issued (the Motion for Continuance is granted).
PDF:
Date: 12/28/2001
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 12/28/2001
Proceedings: Amended Notice of Hearing issued. (hearing set for January 28 and 29, 2002; 8:30 a.m.; Orlando, FL, amended as to Date and Room Location).
PDF:
Date: 12/24/2001
Proceedings: Co-Respondent KGB Lake Howell, LLC`s, Opposition to Motion for Continuance filed.
PDF:
Date: 12/24/2001
Proceedings: Co-Respondent KGB Lake Howell, LLC, Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 12/24/2001
Proceedings: St. Johns River Water Management District`s First Interrogatories to Shriley B. Haynes filed.
PDF:
Date: 12/24/2001
Proceedings: Co-Respondent`s, KGB Lake Howell, LLC`s First Set of Interrogatories to Petitioner, Shriley B. Haynes filed.
PDF:
Date: 12/24/2001
Proceedings: Letter to Judge Alexander from S. Haynes response to statements made by Ms Harper in her motion (filed via facsimile).
PDF:
Date: 12/20/2001
Proceedings: St. Johns River Water Managment District`s Response to Motion for Continuance (filed via facsimile).
PDF:
Date: 12/18/2001
Proceedings: Letter to Judge Alexander from S. Haynes requesting continuance (filed via facsimile).
PDF:
Date: 12/17/2001
Proceedings: Co-Respondent KGB Lake Howell, LLC`s, Notice of Taking Deposition Duces Tecum, E. Van Den Berg filed.
PDF:
Date: 12/10/2001
Proceedings: Amended Notice of Hearing issued. (hearing set for January 9 and 10, 2002; 8:30 a.m.; Orlando, FL, amended as to Time).
PDF:
Date: 12/07/2001
Proceedings: Co-Respondent`s, KGB Lake Howell, LLC`s First Request for Production of Documents from Petitioners Shirley B. Haynes and Egerton K. Van Den Berg filed.
PDF:
Date: 12/07/2001
Proceedings: Notice of Service of Co-Respondent`s, KGB Lake Howell, LLC`s, First Set of Interrogatories to Petitioners Shirley B. Haynes and Egerton K. Van Den Berg filed.
PDF:
Date: 12/06/2001
Proceedings: Order issued. (consolidated cases are: 01-004250, 01-004545)
PDF:
Date: 12/06/2001
Proceedings: Joint Motion to Move Hearing Dates (filed via facsimile).
PDF:
Date: 12/06/2001
Proceedings: Co-Respondent`s, KGB Lake Howell. LLC`s First Request for Production of Documents from Petitioner, Shirley B. Haynes filed.
PDF:
Date: 12/05/2001
Proceedings: Notice of Service of Co-Respondent`s, KGB Lake Howell, LLC`s, First Set of Interrogatories to Petitioner, Shirley B. Haynes (filed via facsimile).
PDF:
Date: 11/26/2001
Proceedings: Notice of Service of St. Johns River Water Management District`s First Set of Interroagatories to Shirley B. Haynes filed.
PDF:
Date: 11/14/2001
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 11/14/2001
Proceedings: Notice of Hearing issued (hearing set for January 9 and 10, 2002; 12:30 p.m.; Orlando, FL).
PDF:
Date: 11/08/2001
Proceedings: Joint Response to Initial Order (filed via facsimile).
PDF:
Date: 10/31/2001
Proceedings: Initial Order issued.
PDF:
Date: 10/30/2001
Proceedings: Standard General Environmental Resource Permit Technical Staff Report filed.
PDF:
Date: 10/30/2001
Proceedings: Petition for Administrative Proceeding filed.
PDF:
Date: 10/30/2001
Proceedings: Notice (of agency referral) filed.
PDF:
Date: 10/30/2001
Proceedings: Notice of Transcription filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
10/30/2001
Date Assignment:
10/31/2001
Last Docket Entry:
03/31/2003
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related Florida Statute(s) (3):