01-004919 Otto Stangl vs. Century Realty Funds, Inc., And Southwest Florida Water Management District Status: Closed Recommended Order on Monday, July 8, 2002.

Summary: Management and Storage of Surface Waters construction permit obtained in 1985 expired in 1988, and permit never transferred to operation phase. Recommended denial of application to modify expired permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OTTO STANGL, )

)

Petitioner, )

)

and )

)

MARGARITA STANGL, )

)

Intervenor, )

)

vs. ) Case No. 01 - 4919

)

CENTURY REALTY FUNDS, INC., )

and SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

On March 18 - 21, 2002, final administrative hearing was

held in this case in Bartow, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administra tive

Hearings.

APPEARANCES

For Petitioner and Intervenor:

Joseph D. Magri, Esquire

Merkle & Magri, P.A.

5510 West LaSalle Street

Tampa, Florida 33607 - 1713

For District: Martha A. Moore, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

For Century: Joseph P. Mawhinney, Esquire

Clark, Campbell & Mawhinney, P.A.

Post Office Box 6559

Lakeland, Florida 33802

STATEMENT OF THE ISSUE

The issue in this case is whether t he Southwest Florida

Water Management District (District) should issue to Century

Realty Funds, Inc. (Century) Environmental Resource Permit

(ERP) No. 44000227.002 (the ERP), which would modify

Management and Storage of Surface Waters (MSSW) Permit No.

40 0227.000 (the Permit) and Stormwater Exemption No. EO1481,

issued by the District to Century in July 1985 for

construction of a surface water management system for Angler's

Green Mobile Home Park located in Mulberry, Polk County,

Florida.

PRELIMINARY STA TEMENT

On October 29, 2001, the District issued Notice of Final

Agency Action on the ERP to Century. Petitioner, Otto Stangl,

timely filed a Petition for Formal Administrative Hearing

(Petition), but the District dismissed the Petition as

insufficient. W ithin the time given to amend, Petitioner and

his wife, Margarita Stangl, filed a Petition for an

Administrative Hearing (Amended Petition). The District

dismissed the Amended Petition of Margarita Stangl as untimely

but allowed it to stand as to Otto Sta ngl. The matter was

referred to the Division of Administrative Hearings for

assignment of an Administrative Law Judge on December 26,

2001; final hearing was set for March 18 - 21, 2002, in Bartow,

Florida.

On February 20, 2002, Margarita Stangl moved to

intervene; and her intervention was granted on February 27,

2002.

The District filed a Motion in Limine on March 8, 2002,

seeking to insulate the 1985 MSSW Permit and Stormwater

Exemption from challenge in this proceeding based on statute

of limitations, estoppel, and waiver.

On March 11, 2002, Petitioner and Intervenor (the

Stangls) jointly filed a Pre - Hearing Statement; and the

District and Century each filed a Pre - Hearing Statement. On

March 14, 2002, the District and Century filed an Amended

Joint Pre - Hearing Stipulation.

Also on March 14, 2002, Century filed a Motion in Limine

joining in the District's Motion in Limine and adding an

additional statute of limitations as grounds.

On March 15, 2002, the Stangls filed a Response to

Century's Motion in Limine. On March 18, 2002, the Stangls

filed a Response to the District's Motion in Limine.

At the outset of final hearing, the District moved to

strike the Response or for consideration of the District

memorandum in opposition to the Response. Ora l argument was

heard on the pending motions. The District's Motion to Strike

was denied; the District's memorandum in opposition to the

Response filed by the Stangls was considered, but each Motion

in Limine was denied.

The parties had Joint Exhibits 1 - 5 admitted in evidence.

Century then called the following witnesses: Otto Stangl;

Larry Maxwell; Ivan King, P.E., project engineer for Century

and the Angler’s Green Project; and David Carter, P.E.

(accepted as an expert in the areas of mobile home park

permitting, mobile home park stormwater design, permit

deviations and modifications, lake management practices, and

fish kills). Century also had CRF Exhibits 1 through 7

admitted in evidence. The District called the following

witnesses: Andreas Sager, P.E. (accepted as an expert in

surface water management systems and environmental resource

permitting); William Hartmann, P.E., (also accepted as an

expert in surface water management systems and environmental

resource permitting); and Jeffrey Whealton, En vironmental

Scientist (accepted as an expert in wetland system

delineation, mitigation, and environmental resource

permitting). The District also had District Exhibits 1

through 8 admitted in evidence. The Stangls called the

following witnesses: Otto St angl; John Stangl; William

Hartmann; and Guy Taylor. The Stangls also had P/I Exhibits

1 - 3 and 5 - 15 admitted in evidence. (Ruling was reserved on

Century's and the District's objections to P/I Exhibits 4, 9,

and 13. Objection to P/I Exhibit 4 -- the Harri s deposition

transcript -- on grounds of relevance is sustained. Objection

to P/I Exhibit 9 -- the Burris appraisal and attached survey -- on

grounds of hearsay is overruled. While the high - water mark on

the unsigned survey attached to the signed appraisal is

hearsay for which there is no exception under Section 90.803,

Florida Statutes, the hearsay is admissible under Section

120.57(1)(c), Florida Statutes, "for the purpose of

supplementing or explaining other evidence." Objection to P/I

Exhibit 13 -- the Sager deposition transcript -- also is

overruled.) In rebuttal, t he District called Jesse Graham

Watson.

After presentation of evidence, the District ordered a

transcript of the final hearing, and the parties requested and

were given 30 days from the filing of the transcript in which

to file proposed recommended orders (PROs). The Transcript

(in volumes I - VI) was filed on April 25, 2002; and on May 28,

2002, the Stangls filed a joint PRO, and Century and the

District filed a joint PRO. However, the Stangls' P RO

exceeded the 40 - page limit in Florida Administrative Code Rule

28 - 106.215 by 15 pages; and on May 31, 2002, Century filed a

Motion to Strike Petitioner/Intervenor's Proposed Recommended

Order. Also on May 31, 2002, the Stangls filed a Motion for

Leave to File a [Proposed] Recommended Order in Excess of the

Page Limit and Leave to File this Motion out of Time, along

with an Affidavit of Joseph D. Magri. On June 17, 2002,

Century's Motion to Strike was granted. But the alternative

relief requested by th e Stangls was granted, and they were

given five days to file a PRO in compliance with Florida

Administrative Code Rule Chapter 28 - 106, including the 40 - page

limit, by deleting parts of the previously - filed PRO without

making any other substantive changes. The Stangls' shortened

PRO was filed on June 25, 2002, and has been considered, along

with the joint PRO filed by Century and the District.

FINDINGS OF FACT

1. The District issued Management and Storage of Surface

Waters (MSSW) Permit No. 400227.000 an d Stormwater Exemption

No. EO1481 to Century in July 1985 for construction of a

surface water management system for Angler's Green Mobile Home

Park (MHP) located in Mulberry, Polk County, Florida.

A. Angler’s Green MHP

2. Angler’s Green MHP is an 83 - acre residential golf

course development of approximately 385 homes located off of

State Road 37 near Mulberry. Residents at Angler’s Green own

their own mobile homes and lease the residential lots pursuant

to annual leases expiring December 31 of each ye ar, with

guaranteed renewal conditioned upon owner compliance with the

terms and conditions of the lease.

3. Prior to being developed as a mobile home park, the

property which is now Angler’s Green MHP was part of a

phosphate mining operation and was re claimed under a phosphate

mining land reclamation plan approved by the Florida

Department of Natural Resources and a reclamation contract

dated September 4, 1984. Final contours of the Angler’s Green

site were made in accordance with the approved reclamat ion

plan.

4. After reclamation contouring, a 23 - acre manmade

(former phosphate mine pit) lake remained in the northeast

quadrant of the Angler's Green site. The resulting lake had a

finger arm (bay or cove) extending from the southwest corner

of the ma in body of the lake, oriented in a north - to - south

direction and located west of a peninsula of land extending

into the northwest part of the lake from the north. The lake

also had a short, narrow canal leading into the main body of

the lake from the south ; the canal connected at a right angle

to longer narrow waterway to the south of and extending

parallel to the main body of the lake in an east - to - west

orientation. There also were two smaller ponds on the

property after reclamation contouring.

5. Afte r reclamation, surface water onsite generally

flowed westerly and discharged from the property to a railroad

ditch along the western boundary of the property. The

recorded post - reclamation, pre - development water level for the

23 - acre lake, as indicated on the site grading plans, was

around 127.1 to 127.8 feet above Mean Sea Level (M.S.L.).

B. The 1985 Permits

6. On July 10, 1985, the District issued MSSW Permit No.

400227.000 and Stormwater Exemption No. EO1481 to Century to

authorize the construction of a surface water management

system for Angler’s Green. The MSSW Permit had an expiration

date of July 10, 1988.

7. As designed, the permitted Angler’s Green surface

water management system was to route internal stormwater

runoff to swales, detention ponds, and catchment areas before

discharging through a sidebank sand filtration system (a berm

approximately 300 feet long containing an 8” perforated drain

pipe covered by a filter fabric and sand filter material) to

receiving waters at the northwest cor ner of the property.

8. The permitted system was designed with five drainage

areas known as Basins A through E. Basin A was in the

southeast quadrant of the site; Basin B was to its east in the

southeast quadrant of the site; Basin E was to the north o f

Basin A and included the 23 - acre former phosphate mining pit

reclaimed as an artificial lake, which was referred to as

“Lake E” or sometimes “Pond E"; Basin C was to the west of

Basin E; and Basin D was to the west of Basin C and to the

north of Basin B. The two smaller ponds on the property were

designated Pond C - 1 and Pond B - 1 and were located in Basin C

and Basin B, respectively. Basin D was in the northwest

corner of the site; the discharge structure was in the

northwest corner of Basin D.

9. As the system was designed, stormwater from Basin E

would appear to sheet flow naturally into Lake E; stormwater

from Basin A would appear to flow naturally to the southwest,

away from Lake E, but the system routed the water from the

southwest corner of Basin A to the western end of the waterway

on Lake E through an underground pipe. Stormwater from Basin

B was to flow to and be retained in Pond B - 1; as the system

was designed, surface water was not designed to discharge

offsite from Basin B.

10. As design ed, Lake E served as a detention pond for

water from Basin E and Basin A. It was to have a control

structure (CS - 1) in the arm of Lake E that would produce a

seasonal fluctuation range of two feet, from 127.5’ above

M.S.L. to 129.5’ above M.S.L. Stormwat er discharging from CS -

1 was to be conveyed by pipe to Pond C - 1, where it was to

mingle with surface water draining from Basin C. When full,

Pond C - 1 would cascade into the golf course area in Basin D

and, as necessary, in a portion of Basin B. After cat chment

and detention in the golf course area, overflow was eventually

and ultimately to discharge offsite through the side - bank sand

filtration system in the northwest corner of Basin D.

11. In this manner, the Angler’s Green surface water

management sy stem was designed to accommodate the 24 - hour, 25 -

year storm event, which was estimated to produce approximately

8 inches of water in a 24 - hour period. It also was designed

to comply with the water quality requirements as specified in

Florida Administrativ e Code Chapter 17 - 25 (1985 Ann. Supp.) by

detaining the first half - inch of runoff before discharging it

offsite through the sidebank sand filtration system in the

northwest corner of Basin D. (All rule citations are to the

Florida Administrative Code.)

C. Omission of the Stangls

12. During the review process, the District noted from

drawings submitted as part of Century's MSSW Permit

application that the project area did not include

approximately the eastern third of the main body of Lake E.

District staff brought this to Century's attention in a

request for additional information (RAI) and stated: "If

possible, you should obtain a perpetual right to operate and

maintain the lake from other owners." In response, Century

falsely represented to the Dis trict that L. Kirk McKay, a

joint venture partner of Century, was the only riparian owner

on Lake E and that Century had obtained from him a perpetual

right to operate and maintain Lake E as part of the MSSW

Permit.

13. In fact, the Stangls owned proper ty on the east side

of the lake, including approximately 500 feet of lakefront and

contiguous lake bottom. The Stangls and two partners

purchased the property from McKay himself in 1979. The

Stangls bought out their partners in 1984.

14. The District relied on Century's misrepresentation.

The District would not have issued the MSSW Permit to Century

if the District had known that Century did not own or control

all the land being used for the Permit -- specifically,

including all of Lake E. See Rule 40D - 4.101(1)(d) and

(2)(d)6. (1985) (application must include "evidence of

ownership or control").

15. In addition, b ecause the District was unaware of the

Stangls' ownership of a portion of Lake E, the District did

not require Century to give the Stangls direct, actual notice

of the Century's permit application. Instead, the District

only required that Century publish notice of the District’s

receipt of the permit application. Notice was published on

April 3, 1985, in the Lakeland Ledger , a newspaper of general

circulation qualified under the terms of Section 50.011,

Florida Statutes.

16. But the Stangls did not see the published notice,

were unaware of the permit application, and did not ask to

participate in the permitting process.

17. The Stangl property adjacent to Angler’s Green

remained undeveloped and unoccupied until 1999, when the

Stangls' son, John, established a business on the site. Prior

to 1999, the Stangls visited the property a couple times a

year. They were fully aware of the const ruction and operation

of Anglers Green as a mobile home park across Lake E. During

this time, Century leased 385 lots with guaranteed annual

renewal conditioned only upon compliance with lease terms and

conditions. Amenities under the leases included clu bhouse and

golf course privileges. At no time before 2000 did the

Stangls take any action to challenge the validity of Century's

1985 MSSW Permit.

D. 1985 Surface Water Management Permitting Requirements

18. In 1985, permitting requirements for surf ace water

management systems were divided between two regulatory

schemes. Surface water management permits in Polk County were

issued by the District under Chapter 373, Florida Statutes,

and Rule Chapters 40D - 4 and 40D - 40, which addressed water

quantity a nd flooding issues for projects greater than and

less than 40 acres, respectively. Water quality permits or

exemptions from water quality permitting requirements were

issued by the Department of Environmental Regulation under

Chapter 403, Florida Statutes , and Rule Chapter 17 - 25 to

address water quality concerns. It was not until 1988 that

permitting requirements were consolidated into the MSSW

regulatory program administered by the District under Rule

Chapters 40D - 4 and 40D - 40.

19. In 1985, the District did not have a Basis of Review

(BOR) to specify system design requirements for applicants to

provide reasonable assurances that the conditions for issuance

of surface water permits were satisfied. Standards and

criteria for the design and performance of surface water

management systems were contained in Rule 40D - 4.301(2) (1985)

Under subsection (2)(i) of that rule, projects designed to

meet the requirements of Chapter 17 - 25 [Regulation of

Stormwater Discharge] were presumed to meet applicable State

water quality requirements. There were no requirements for

wet detention pond littoral zones.

20. Under Rule 17 - 25.03(2)(b) (1985 Ann. Supp.),

stormwater management systems for projects with drainage areas

less than 100 acres that provided retention or dete ntion with

filtration of the first half - inch of runoff were exempt from

the permitting requirements of Rule Chapter 17 - 25.

21. In 1985, District Rule 40D - 4.301(2)(j) (1985)

allowed for natural areas and existing water bodies to be used

for stormwater re tention or detention purposes when not in

conflict with environmental or public use considerations.

Areas that could be considered for this purpose included

previously - degraded areas or man - made areas (such as borrow

pits). Apparently, the District allow ed Century to use Lake E

as a detention pond under this provision.

E. Deviations from MSSW Permit

22. Angler’s Green MHP was constructed in two phases,

with the first phase completed in 1985, and the second phase

completed in 1987. Construction of at least the part of the

surface water management system to serve the first phase took

place prior to 1985; it was not clear from the evidence

whether construction of the part of the surface water

management system to serve the second phase also took place

pr ior to 1985, but it clearly took place prior to construction

of the second phase in 1987.

23. Condition No. 4 of Century's MSSW Permit required

the submittal of a certification that the system was

constructed in accordance with the approved and permitte d

design. But Century did not provide any such certification.

Century also never certified to the District that its new

stormwater discharge facility, as constructed, continued to

qualify for exemption from State water quality requirements.

Although the surface water management system was constructed

and operating, the District never transferred the 1985 Permit

to the operation phase.

24. In several respects, the Angler’s Green surface

water management system was not constructed as designed,

approved, and permitted in 1985. The pipe to convey

stormwater from the southwest corner of Basin A back to the

Lake E waterway apparently never was constructed; instead,

stormwater from Basin A was routed to Pond B - 1. (There also

was a berm constructed in Basin A near the southern boundary

of the site; but that berm apparently was a visual berm, and

there was no evidence that it affected performance of the

surface water management system.) Control structure CS - 1

(which was supposed to be located in the arm or ba y of Lake E)

and the pipe to convey overflow from there into Pond C - 1 also

never were constructed.

25. By the early 1990's, Angler's Green was experiencing

flooding in the golf course area in Basin D and B for extended

periods of time. In November 1993 , the District responded to

a complaint of flooding in that vicinity. Upon investigation,

the District determined that malfunction of the surface water

management system serving Reservation Lakes (now known as

Paradise Lakes), a development to the north a nd downstream of

the Angler's Green system, was causing water to back up

through the wetlands and the sand filtration system in the

northwest corner of the Angler’s Green project. As a result,

water overtopped the discharge structure, equalized at levels

above the top of the discharge structure's berm, and flooded

the golf course for extended periods of time.

26. At some undetermined point in time, an unpermitted

pond was dug in Basin D, apparently in an attempt to alleviate

flooding of the golf course. In addition, possibly for the

same purpose, a pump was installed in Basin D near Pond C - 1,

and a pipe was installed to convey stormwater from there into

Lake E.

27. The sidebank sand filtration system designed to

provide filtration of stormwater prior to discharge from the

northwest corner of the site does not appear to exist today.

It may be present but difficult to see after 15 years of plant

growth; or it may have been removed or disturbed as a result

of re - grading in the area. However, the eviden ce proved that

the discharge structure was present in 1993, and there is no

reason to believe that it was not installed during

construction of the surface water management system -- i.e. , by

1987 at the latest.

28. In addition, at some undetermined point in time, a

pipe was installed at the northeast corner of Lake E to convey

overflow from Lake E eastward to a drainage ditch located

alongside SR 37 to the north of the Stangls' property. No

witnesses could testify as to when the pipe to the SR 37 ditch

wa s installed or its elevation. (The District and Century

state in their PRO that Map No. 2 in P/I Exhibit 14 -- an aerial

map/survey submitted to the District by Century on August 13,

1990, as part of Century's 1990 Water Use Permit No.

209993.000 applicatio n -- notes the pipe's elevation as 127.95

feet above M.S.L.; but no such finding could be made from

review of the exhibit.)

29. Roads in Angler's Green have inverted crowns to

convey runoff from roads, driveways, and roofs away from

mobile home lots. Som e runoff from these impervious surfaces

appears to be directed into a swale on the east side of the

site; this swale leads to Lake E. In addition, approximately

12 drains have been installed in or near roads in Angler's

Green that convey water through pip es directly into Lake E or

Pond C - 1. Under current Rule Chapters 40D - 4 and 40D - 40, road

drains connecting impervious surfaces to Lake E would have to

be shown on application construction drawings, and separate

stormwater calculations would have to be prov ided in an

application. But in 1985 this was not required. Century's

calculations, together with flow arrows on drawings showing

the direction of stormwater flow towards the detention ponds,

were considered sufficient -- especially since Century's

calculat ions used a relatively high runoff co - efficient. As a

result, the existence of these drains and pipes are not

considered to be substantial deviations from the original,

approved design.

30. Similarly, approximately 64 roof drains and pipes

conveying wa ter from roofs directly into Lake E and Pond C - 1

would not be considered substantial deviations from the

original, approved design. In addition, these apparently were

installed by mobile homeowners over the years, not by Century.

31. From 1985 to 2000, the District did not have

occasion to address regulatory concerns at Angler’s Green,

except for the complaint of flooding in the golf course area

that occurred in November 1993 and a more recent complaint

about an area of the golf course that was designed to flood

under certain conditions.

F. Otto Stangl’s Complaint and the District’s Response

32. Around November 1999, John Stangl noticed a fish

kill in the ditch along SR 37 near the Stangl property. He

also was contacted by a governmental compliance officer

concerning the fish kill. Upon investigating, John Stangl saw

the unpermitted pipe leading from Lake E that was discharging

into the SR 37 ditch where the fish kill was observed, as well

as the unpermitted pump that was pumping water from the

Angl er’s Green golf course area through a pipe that discharged

into Lake E.

33. In February 2000, Otto Stangl complained to the

District about the fish kill and the existence of the

unpermitted structures associated with Lake E.

34. Upon receiving Otto S tangl’s complaint, District

staff conducted site visits of the Angler’s Green project.

Staff observed the unauthorized pump and pipe conveying water

from Pond C - 1 to Lake E and the unauthorized pipe conveying

water from Lake E to the SR 37 ditch. Staff a lso observed

that the Lake E control structure was missing, the pipe to

convey stormwater from Basin A to Lake E was missing, and

Basin D had been re - graded.

35. In February 2000, the District also became aware of

the fact that Century did not have full ownership or control

of Lake E.

36. On March 15, 2000, the District issued Century

Notice of Non - Compliance and directed Century to either

construct the system as designed and permitted or to seek a

permit modification.

37. On May 8, 2000, Century s ubmitted a letter

application to modify the original MSSW Permit No. 400227.000

by constructing the originally permitted Lake E control

structure and pipe conveying water from Lake E to Pond C - 1,

but in a different location in Lake E than originally

permit ted due to the existence of homes at the location where

these structures were originally planned. The application was

subsequently amended to be a formal modification upon

Century’s request for further modification to allow Basin A

stormwater to flow to P ond B - 1 and to expand Pond B - 1 and add

a control structure and an effluent filtration system.

38. Despite having actual knowledge since at least

February 2000 that the Angler's Green surface water management

system was built partially on their property, the Stangls did

not ask for a hearing on the 1985 Permit. Instead, they

awaited the District's consideration of Century's modification

application and sought to challenge the District's notice of

intent to grant the modification permit issued on October 29,

2001.

G. The District’s Regulatory Compliance Practices

39. In the 1980's, the District appeared to pay little

or no attention to construction of permitted projects or

submission of required post - construction certifications. Many

projects permitte d by the District in the 1980’s, such as

Angler’s Green, were built and operating although no

certifications had been submitted; as a result, the permits

issued for these projects never were transferred to the

operation phase.

40. Eventually, some proje cts not built in compliance

with issued permits came to the attention of the District,

typically through third - party complaints about drainage

problems and flooding. By this time, there was a large

backlog of issued construction permits for which no requi red

post - construction certifications had been submitted. The

backlog of these older projects was so large that the District

decided not to initiate an aggressive, systematic, and

comprehensive review of all permits for which no required

certifications had been submitted. Instead, projects were

checked on an ad hoc basis as complaints regarding the

functioning of their surface water management systems were

registered.

41. When it came to the attention of the District in

this manner that a project had been built under an MSSW permit

but that no required certifications had been submitted, the

District first attempted to secure the required certifications

in the form of certified as - built construction drawings and a

Statement of Completion, as required by BOR 2.7. In so doing,

it was common practice for the District to accept

certifications beyond the expiration date on a permit. If

projects were substantially completed, the District would not

deem the permit as expired simply because the required

certif ications had not been submitted before the expiration

date; and such projects did not lose their status as being

permitted.

42. It should be noted that, according to the testimony

of the District's expert, William Hartmann, this agency

practice was not based on an interpretation of Rule 40D -

4.321(1)(b) (1985) (on duration of construction permits).

Rather, the agency practice was to ignore the expiration of

the construction permit under those circumstances. In

addition, it does not appear from the evide nce that the

District ever before has faced the situation presented in this

case -- where a person on whose property part of a surface water

management system was built without the person's consent

opposes modification and asserts the construction permit has

expired.

43. In cases where the agency's practice was applied, if

the required certified as - built construction drawings and

Statement of Completion could not be provided because the

project was not built in accordance with the MSSW permit, the

District would require the permittee to either bring the

system into compliance with the approved permit designs or

obtain a modification of the construction permit. Letter

modifications would be accepted when the requested

modification would not substantially al ter the permit

authorization, increase the authorized offsite discharge,

impact the environmental features of the project, decrease the

required retention/detention, decrease the required flood

control elevations for roads or buildings, or decrease

polluti on removal efficiency. See Rule 40D - 4.331(2)(b)

(1985). (The current version of the rule adds renewal or

extension of the existing permit duration.) Alterations

meeting the threshold requirements for a letter modification

would be presumed to meet the c onditions for issuance for a

permit. Otherwise, formal permit modifications would be

required.

44. When application is made for a permit modification,

the District’s practice is to evaluate those aspects of the

surface water management system being mod ified. Review

generally would not extend to the entire system. Permittees

seeking to modify their surface water management systems

generally are not required by the District to bring the

unmodified portions of the system into compliance with current

desi gn criteria.

H. Proposed ERP Permit Modification

45. ERP Application No. 44000227.002 seeks authorization

to modify portions of the Angler’s Green surface water

management system. The specific alterations for which

approval is sought are: permanent r emoval of the existing,

unpermitted 18 - inch pipe between Lake E and SR 37 roadside

ditch; permanent removal of the pump and associated piping

conveying water from Pond C - 1 to Lake E; installation of the

control structure (CS - 1), together with installation of pipe

to convey water from the control structure to Pond C - 1, as

designed and approved in the 1985 Permit but different

location in the northwest corner of the main body of Lake E;

re - grading of the northwesterly portion of the golf course to

more closel y conform to the original permitted plan and help

keep Basin B separate from Basin D; reconstruction of the

side - bank sand filter system in the northwest corner of the

property, as designed and approved in the 1985 Permit but with

a slightly higher invert elevation (122.04 feet above M.S.L.)

to prevent water from backing up into Angler's Green from

Paradise Lakes again, and with a concrete flume and spreader

swale between Pond C - 1 and the berm of the side - bank sand

filter system; enlargement of Pond B - 1; in stallation of a

control structure on Pond B - 1; and installation of 100 feet of

6 - inch side - bank sand filter discharging to the southwest

corner of the property from Pond B - 1.

46. By removing the unpermitted pipe to the roadside

ditch along SR 37 and by constructing control structure CS - 1,

with the same control elevations as in the 1985 Permit (albeit

at a different location in Lake E), and connecting CS - 1 by

pipe to Pond C - 1 as envisioned in the 1985 Permit, the

function of Lake E should approximate its function under the

design approved in 1985.

47. Modifying the permitted design to authorize Basin A

to flow to Pond B - 1 instead of Lake E results in less water

flowing to Lake E; these changes will not increase water

quantity or quality impacts to Lake E, as compared to the 1985

Permit.

48. As compared to reclamation conditions prior to

implementation of the 1985 Permit, water quantity and quality

impacts to Lake E would be expected both under the system as

designed and permitted in 1985 and as propos ed to be modified,

by virtue of the similar use of Lake E as a detention pond

under either system.

49. Pond B - 1 is being enlarged to better accommodate the

flow from Basin A. The control structure being added at Pond

B - 1 will control flow into the swal e to the west so as to

address water quantity impacts in that area. Stormwater

calculations for the revised Pond B - 1 demonstrated that the

post - development discharge rate will not exceed the pre -

development discharge rate, so that there are no concerns fo r

adverse water quantity impacts to receiving waters or adjacent

lands or flooding impacts to on - site or off - site property.

The historical flows to the west are still maintained.

50. The discharge structure being added at Pond B - 1 will

account for tre atment of the Basin A flow. Based on

calculations for revised Pond B - 1, the enlarged pond will

retain and percolate half an inch of stormwater runoff from

the contributing area in 36 hours (which is consistent with

current BOR design requirements). The p roposed Pond B - 1/Basin

B modifications, including the routing of Basin A stormwater

to Pond B - 1, will not adversely affect the quality of

receiving waters in that vicinity such that state water

quality standards would be violated.

51. Angler's Green is located in the Southern Water Use

Caution Area of Polk County. No surface or groundwater levels

or surface water flows have been established for this area

under Section 373.042, Florida Statutes.

52. The proposed modifications do not involve any works

of the District.

53. The proposed modifications are based on generally

accepted engineering and scientific principles and employ

treatment methods of effluent filtration which involve

commonly accepted designs that can be effectively performed

and funct ion as proposed.

54. There are no concerns about Century’s financial,

legal, or administrative capability to undertake the proposed

modifications as specified in the permit, if issued.

55. There are no applicable special basin or geographic

area crit eria established for this area.

I. Environmental Concerns

56. As with its review of the proposed permit

modification for water quantity impacts, the District's review

of environmental concerns was limited to review of impacts

from the proposed modifica tions to the original permitted

design; unmodified portions of the original permit were not

reviewed for compliance with current requirements.

57. An approximately 20 square - foot permanent impact is

proposed to Lake E due to the placement of the control

structure (SW - 1) in the water. A 379 square - foot temporary

impact is proposed to Lake E due to the placement of a

cofferdam to facilitate construction of the control structure.

Temporary impacts to Lake E resulting from the construction of

the control s tructure would be addressed through the use of

sediment and erosion controls to prevent possible

sedimentation and turbidity that may arise during the

construction activity. The placement of a control structure

in Lake E would create very minor permanent impacts resulting

from the loss of the footprint of the control structure.

These impacts would be insignificant. Due to the very minor

nature of these proposed impacts, no mitigation would be

required, and no loss of wetlands would be required to be

reco rded on the Wetlands/Surface Water Table. Construction of

SW - 1 would not adversely impact the value of functions

provided to fish and wildlife, and listed species including

aquatic and wetland dependent species, by wetlands, other

surface waters and other water related resources of the

District. No secondary impacts would be expected from

construction of SW - 1.

58. No unacceptable cumulative impacts upon wetlands and

other surface waters would be expected to occur as a result of

construction of SW - 1.

59. The project area includes .71 acre of

herbaceous/forested wetlands (WL - 1) in the northwest corner.

The potential for secondary impacts is addressed by an

existing fence surrounding WL - 1, which eliminates concerns for

secondary impacts to this wetland area. No adverse impacts

would be anticipated to occur to these wetlands, and no

adverse secondary impacts to the water resources would be

expected to occur as a result of the proposed modifications

themselves.

60. The proposed modifications would not cause

unacceptable cumulative impacts to wetlands and other surface

waters.

61. Class II or Class III waters would not be affected

by the proposed modification project. Therefore, Rule 40D -

4.302(1)(c) is not applicable.

62. No seawalls, lagoons o r estuaries are involved in

this project. Therefore, Rule 40D - 4.302(d) is not applicable.

63. The proposed modifications would not be contrary to

the public interest. Relocation of a control structure and

enhancement of the Basin B portion of the syst em would create

no significant change in impacts. The proposed modifications

constitute a slight improvement over water quality from the

original permitted design.

64. No threatened or endangered species were identified

for Angler’s Green. The propose d relocation and construction

of the Lake E control structure, preservation of onsite

wetlands in the northwest corner, and re - design of Pond B - 1

present no environmental concerns. Consequently, the proposed

modifications do not create any potential for a dverse effects

regarding the conservation of fish and wildlife, including

endangered or threatened species or their habitats.

65. The proposed modifications do not adversely affect

the fishing or recreational values or marine productivity in

the vicinit y of the activity.

66. The project area does not involve navigable waters

and does not affect the flow of water or cause harmful erosion

or shoaling. Hence, Rule 40D - 4.302(1)(a)(3) does not apply to

this permit modification application.

67. There are no significant historical and

archaeological resources involved in this Project. Therefore,

Rule 40D - 4.302(1)(a)(6) is not applicable to this permit

modification application.

68. The proposed modifications would not be contrary to

the public interest; they would not adversely affect the

public health, safety or welfare or the property of others.

No adverse impacts are anticipated to occur as a result of the

proposed modifications. The proposed modifications maintain

the historic water elevation for Lake E and maintain historic

flows for the project area. The modified system should also

provide some improvement in water quality.

CONCLUSIONS OF LAW

J. Status of Permit to be Modified

69. In order for an application for permit modification

to be granted, there has to be a valid permit to be modified.

The Stangls contend that there is no permit to be modified for

two reasons: (1) the 1985 permit was void ab initio because

the Stangls owned part of Lake E used by Century for its

surface water management sy stem, the Stangls did not consent

to this use of their property, and the Stangls did not get

direct notice of the permit proceedings that resulted in the

1985 MSSW Permit; and (2), even if not void ab initio , the

1985 Permit expired on July 10, 1988.

70. As to their first contention, Rule 40D - 4.101(1)(d)

and (2)(d)6. (1985) required Century's application to include

"a boundary survey and evidence of ownership or control."

(Current Rule 40D - 1.6105(1) provides that all permits "are

contingent upon the con tinued ownership, lease, or other legal

control of property rights in underlying, overlying, or

adjacent lands . . . .") I t was clear from the evidence that

Century never had ownership or control over the Stangls'

property. The District issued the 1985 M SSW Permit in

reliance on Century's misrepresentation that Kirk McKay was

the only riparian owner on Lake E. It also was reasonably

clear that, had the District known the true facts, it would

not have issued Century the 1985 MSSW Permit without consent

of or at least direct notice to the Stangls. (The Stangls

cite constitutional due process law that would require either

consent or at least direct notice before Century was allowed

to use the Stangls property as part of a detention pond for

Century's surfac e water management system.)

71. While the 1985 Permit was voidable by the Stangls

for failure to have their consent, it was not necessarily void

ab initio . The evidence was clear that the District required

Century to give constructive notice of its app lication in 1985

by publication in the Lakeland Ledger , a general circulation

newspaper qualified under Section 50.011, Florida Statutes.

The published notice gave interested parties 14 days to file a

request to be advised as to proposed agency action and

provided an opportunity to request an administrative hearing

regarding the application. The Stangls apparently did not see

the notice; in any event, they did not file a request, they

received no further notice of proposed agency action, and they

did not request an administrative hearing regarding the

application. The Permit was issued, and Century proceeded

with construction of the MSSW, ceasing construction no later

than 1987. After construction ceased, Century operated

Anglers Green, including mobile home park and golf course.

Prior to 1999, the Stangls visited their property on Lake E a

couple times a year, and they were fully aware of the

construction and operation of Angler's Green operating across

Pond E. In time, 385 lots were leased and occupie d by mobile

homes in Angler's Green. In February 2000 the Stangls learned

specifically and without question that the Angler's Green

surface water management system used their property as part of

Lake E, which was used as a detention pond. Yet, the Stangl s

still did nothing to challenge the 1985 Permit. Finally,

after the District gave notice of intent on October 29, 2001,

to grant Century a permit modification, the Stangls finally

challenged the validity of Century's 1985 MSSW Permit.

K. Expiration of 1985 MSSW Permit

72. Meanwhile, the 1985 Permit expired. Under Rule 40D -

4.321(1)(b) (1985), the duration of Century's 1985 MSSW Permit

was:

three years from the date of issuance for a

construction permit unless the construction

of the permitted surface water management

system discharge structure has been

completed. If the permitted discharge

structure has been completed, then the

construction permit is valid for the

duration of the project.

The evidence was that, under the surface water management

sy stem designed and approved in 1985, the sidebank sand

filtration system in the northwest corner of the site was the

system's discharge structure, as contemplated by the 1985

version of Rule 40D - 4.321(1). The evidence also was that

construction of the disc harge structure was completed by 1987;

but so was construction of the rest of the system (albeit not

in conformance with the approved design).

73. Neither Century nor the District attempted to make

the argument that construction of the surface water man agement

system continued beyond 1987 because parts of the design were

not constructed, or were not constructed as designed.

(Besides being severely strained, the argument also would have

to confront the fact that the linchpin of the argument -- the

discharg e structure -- has been removed.) Instead, they argue:

(1) that "duration of the project" means the Angler's Green

MHP project, not construction of the surface water management

system; and (2), regardless of the rule, the District's

practice is to allow mod ification of old construction permits

for systems built but not transferred into operation phase

notwithstanding the construction permit's expiration date.

74. The first argument is almost as strained as the

argument Century and the District declined to make. It is

based on Rule 40D - 4.321(1)(b)'s use of the word "project"

instead of the term "project construction," as used in 40D -

40.321(1)(b) (1985 Ann. Supp.) (for projects less than 40

acres in size), together with one of the rules of statutory

constru ction. See Dept. of Prof. Reg., Bd. of Medicine v.

Durrani , 455 So. 2d 515 (Fla. 1st DCA 1984). But Century and

the District can point to no logical reason why the expiration

date for projects greater than 40 acres should be different

from projects less than 40 acres. Indeed, the rules governing

expiration of construction permits have since been amended to

make it clear that the rules are the same regardless of the

size of the project. As reflected in the testimony of the

District's own expert, William Hartmann, there was never any

intention for "project," as used in Rule 40D - 4.321(1)(b), to

mean the development project using the surface water

management system being permitted; rather, it means the

permitted surface water management system itself.

75. The other argument made by Century and the District

fails for two reasons. First, it cannot be said that the

District has a rule of practice governing the facts of this

case because there was no evidence that the District ever has

confronted the situatio n where a person on whose property part

of a surface water management system was built without the

person's consent opposes modification and asserts that the

construction permit has expired. Second, Rule 40D - 4.321(2)

(1985) provides: "[C]onstruction perm its expire automatically

unless the permittee requests an extension before the

expiration date." The purported agency practice would be

directly contrary to the District's promulgated rules. See

Section 120.68(6)(e)2. See also Cleveland Clinic Florida

H ospital v. Agency for Health Care Admin. , 679 So. 2d 1237

(Fla. 1st DCA 1996).

76. For these reasons, Century's construction permit

expired on July 10, 1988. Since the construction permit is

long expired, it cannot be modified.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Southwest Florida Water Management

District enter a final order denying Century's permit

modification application designated ERP No. 44000227.002.

DONE AND ENTERED this 8th day of July, 2002, in

Tallahassee, Leon County, Florida.

________________________________

J. LAWRENCE JOHNSTON

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of July, 2002.

COPIES FURNISHED:

Joseph D. Magri, Esquire

Me rkle & Magri, P.A.

5510 West LaSalle Street

Tampa, Florida 33607 - 1713

Joseph P. Mawhinney, Esquire

Clark, Campbell & Mawhinney, P.A.

Post Office Box 6559

Lakeland, Florida 33802

Martha A. Moore, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

E. D. Sonny Vergara, Executive Director

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to subm it 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.