05-002606 Lake Region Audubon Society vs. Southwest Florida Water Management District And Spanish Oaks Of Central Florida L.L.C. Status: Closed Recommended Order on Thursday, November 10, 2005.

Summary: Not-for-profit had standing under Subsection 403.412(6), Florida Statutes, and filings were not ultra vires; but the Environmental Resource Permit criteria for dry detention ponds were met, despite sinkhole allegations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE REGION AUDUBON SOCIETY, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2606

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT and )

SPANISH OAKS OF CENTRAL )

FLORIDA L.L.C., )

)

Respondents. )

)

RECOMMENDED ORDER

On September 22 - 23, 2005, a final administrative hearing

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

Johnston, Administrative Law Judge (ALJ), Division of

Administrative Hearings (D OAH).

APPEARANCES

For Petitioner: Paul Anderson, Qualified Representative

Lake Region Audubon Society

115 Lameraux Road

Winter Haven, Florida 33884

For Southwest Florida Water Management District:

Martha A. Moore, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

For Spanish Oaks of Central Florida L.L.C.:

Martha Harrell Chumbler, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

215 South Monroe Street, Suite 500

Tallahassee, Florida 32302 - 0190

Benjamin W. Hardin, Jr., Esquire

Hardin & Associates, P.A.

Post Office Box 3604

Lakeland, Florida 33802 - 3604

STATEMENT OF THE ISSUES

The issues in this case are: whether the Petitioner,

Lake Region Audubon Society (LRAS), a not - for - profit

corporation, has filed a petition challenging the issuance of

Environmental Resource Permit (ERP) No. 44025789.001 to

Spanish Oaks of Central Florida, L.C.C. (Spanish Oaks);

whet her LRAS has standing to challenge the ERP; whether the

Southwest Florida Water Management District (District, or

SWFWMD) should issue the ERP to Spanish Oaks; and whether

Spanish Oaks should be awarded attorney's fees and costs.

PRELIMINARY STATEMENT

SW FWMD issued ERP No. 44025789.001 to Spanish Oaks on

April 27, 2004. However, SWFWMD rules did not require

publication of notice of the right of all persons whose

substantial interests would be affected by the ERP to initiate

an administrative proceeding t o challenge the ERP before it

would become final. Instead, as provided by SWFWMD rules,

Spanish Oaks was given the option to publish such a notice,

which it initially did not do. Later, Spanish Oaks decided to

publish such a notice and did so on May 19, 2005. On June 6,

2005, LRAS filed a Petition for Administrative Proceeding

(Petition), which SWFWMD dismissed without prejudice. On

July 11, 2005, LRAS filed an Amended Petition, 1 which SWFWMD

referred to DOAH, where it was given DOAH Case No. 05 - 2606 an d

scheduled for final hearing.

By letter filed June 27, 2005, LRAS requested that the

ALJ enter an order requiring a halt to all work on Spanish

Oaks. This request was denied for lack of jurisdiction to

give injunctive relief in an enforcement matter. On July 22,

2005, unbeknownst to the ALJ, and notwithstanding Section

120.569(2)(a), Florida Statutes, 2 SWFWMD approved the transfer

of the ERP to the operation phase, with responsibility for

future operation and maintenance transferred to the Spanish

Oaks of Central Florida Homeowners Association.

On September 7, 2005, Spanish Oaks filed a Motion for

Attorney's Fees under Sections 57.105, 120.569(2)(e), and

120.595(1)(a - e), Florida Statutes.

Immediately before the start of the final hearing, SWFWMD

fil ed a Motion in Limine, and Spanish Oaks filed both a Motion

in Limine, which was denied, and a Motion for Summary

Recommended Order. Ruling on the pending motions was

deferred, and the parties were given seven days from the end

of the final hearing to fil e responses.

At the outset of the final hearing, Joint Exhibit 1,

consisting of the bates - stamped application file, was admitted

in evidence. Then, the rest of the parties' evidence was

presented.

LRAS called 18 witnesses: Mark Hurst, an expert

geolo gist and hydrogeologist; Donna Stark, an LRAS member;

Timothy King, a biologist with the Florida Fish and Wildlife

Commission; Kathleen O'Connor; George Wilt; Charles Cook, an

environmental specialist with the Florida Department of

Environmental Protection (DEP), Bureau of Mine Reclamation;

U.K. Custred, a retired mine engineer; Tom Jackson, a

geologist with SWFWMD; Sherry Windsor, a SWFWMD staff

engineer; Brian Starford, a geologist and Director of SWFWMD's

Bartow Water District; William Hockensmith, Spani sh Oaks'

consulting professional engineer of record; John McVay,

another Spanish Oaks' consulting professional engineer; Jeff

Whealton, a SWFWMD staff environmental scientist; Frank

Ritchie, a SWFWMD staff civil engineer; David Carpenter, a

staff Environme ntal Regulation manager for SWFWMD; William

Hartmann, a professional engineer and SWFWMD's Surface Water

Regulation Manager; Dennis Morgan, principal of the

construction contractor for site work for Spanish Oaks; and

Laura Howe, a SWFWMD Senior Field Techn ician. LRAS also had

its Exhibits 1, 2, 5, 6, and 7 admitted in evidence.

Spanish Oaks called four witnesses: Sonny Gulati, a

professional engineer and an expert in sinkhole

investigations; Donna Stark; John A. Ryan, who is active with

Sierra Club and assisted Anderson in his representation of

LRAS; and Robert Harper, principal of Spanish Oaks. Spanish

Oaks also had its Exhibits 1 - 14 admitted in evidence.

SWFWMD called Anthony Gilboy, a SWFWMD well construction

regulation manager, and recalled Willia m Hartmann. SWFWMD

also had its Exhibits 1 - 2 admitted in evidence.

After presentation of evidence, a transcript of the final

hearing was requested, and the parties were given ten days

from the filing of the transcript in which to file proposed

recommend ed orders (PROs).

On September 30, 2005, SWFWMD filed a Joinder in Spanish

Oaks' Motion for Summary Recommended Order, and LRAS filed

responses in opposition to Spanish Oaks' Motion for Summary

Recommended Order and SWFWMD's Motion in Limine.

The two - v olume Transcript was filed on October 11, 2005,

making PROs due October 21, 2005. The parties timely filed

PROs, which have been considered.

On October 18, 2005, the pending motions were denied as

moot; however, it was ruled that the merits of the factu al and

legal issues raised in the Motion for Summary Recommended

Order remained, and the parties' filings on it have been

considered, along with the timely - filed PROs .

LRAS' PRO included a request that the ALJ enter a final

order instead of a recommended order. On October 24, 2005,

Spanish Oaks filed a Response [in opposition] to Motion for

Final Order. As indicated by the entry of this Recommended

Order, for the reasons given in the Response in opposition,

LRAS' request that the ALJ enter a final order is denied.

Finally, Spanish Oaks' PRO suggests that jurisdiction to

rule on its Motion for Attorney's Fees under Sections 57.105,

120.569(2)(e), and 120.595(1)(a - e), Florida Statutes, should

be retained.

FINDINGS OF FACT

Application and ERP

1. On or about January 23, 2004, Spanish Oaks submitted

to SWFWMD an application for an ERP to construct a surface

water management system (the System) to serve a 30.878 - acre,

47 - lot single - family residential development in the vicinity

of Lakeland, Polk County, Fl orida. SWFWMD requested

additional information on February 20, 2004, to which Spanish

Oaks responded on or about February 27, 2004. The application

was deemed complete on March 26, 2004. On April 27, 2004,

SWFWMD issued the Spanish Oaks ERP.

2. The S panish Oaks ERP describes the System as follows:

The proposed surface water management

system includes storm drains with

associated piping and three interconnected

retention ponds (Pond A, Pond B, and Pond

C). The system is designed to accommodate

the run off from the activities associated

with the construction of the 47 - lot

subdivision with paved roads. The project

site is located on the south side of State

Road 33, just east of Lake Luther Road in

Polk County.

The project is located within a

hydrologica lly closed drainage basin. The

consultant utilized a design storm based on

a 100 - year, 24 - hour rainfall event of 10.0

inches. The ponds are designed to retain

the post - development runoff volume for the

100 - year, 24 - hour rainfall event without

surface dis charge. Project runoff will be

conveyed to the proposed retention ponds. .

. . No adverse off - site/on - site water

quantity impacts are expected.

Compliance with Chapter 40D - 4, F.A.C.,

water quality requirements is assured; the

retention ponds will treat the first one -

half inch of runoff from the contributing

drainage area and recover this volume

through natural infiltration within 72

hours. This is consistent with Part B,

Environmental Resource Permitting

Information Manual Section 5.2(c). No

adverse o n - site/off - site water quality

impacts are expected.

There is 0.11 acre of herbaceous wetlands

within the project area. Permanent wetland

impacts are proposed to the 0.11 acre

herbaceous wetland. No mitigation is

required for this impact.

LRAS' Amended P etition

3. On June 6, 2005, LRAS filed a Petition signed by Paul

Anderson, Mae Hartsaw, Carrie Plair, and Chuck Geanangel.

SWFWD dismissed the Petition without prejudice. On July 11,

2005, an Amended Petition was filed, clarifying that LRAS was

orally i nformed about the Spanish Oaks ERP by one of its

members, since identified as Donna Stark, on May 10, 2005.

The Amended Petition was signed by LRAS Steering

Committee/Acting President Carrie Plair. The District

determined that the Amended Petition was ti mely filed and

substantially complied with the requirements for a petition.

4. The Amended Petition alleged the following as

disputed issues of material fact: the Permit allows

construction of a retention pond in a sinkhole in the

southeast portion of the site; construction of a retention

pond in a sinkhole creates a danger to public health and

safety; and Spanish Oaks failed to notify SWFWMD that it was

beginning construction of the clay cores of certain berms

surrounding the retention ponds, as requir ed by a permit

condition so that SWFWMD could inspect during the

construction. 3

5. The Amended Petition asserted that LRAS member

Donna Stark observed firsthand a sinkhole collapse that

allegedly occurred in the southeast portion of Spanish Oaks

site du ring construction of Retention Pond A. The Amended

Petition alleged that on January 25, 2005, Donna Stark, along

with a state employee (since identified as Timothy King),

observed a "very large cone - shaped depression with smooth

steeply - sloping sides – so steep that Donna Stark was nervous

that the front - end loader driving up and down the slopes could

end up in the aquifer if he lost traction in the loose

unconsolidated sands. In the center of the depression was a

lake perhaps 50 feet in diameter." The A mended Petition

further alleged that “Donna Stark judged the distance from the

top of the ground surface to the water surface to be about 15

feet.”

6. The Amended Petition also asserted that “[o]n

November 13, 2004, LRAS member Donna Stark was informed by a

man who had worked on the Spanish Oaks site that the retention

ponds were 30 feet deep.”

7. As to any specific rules or statutes requiring

reversal or modification of the proposed agency action, LRAS’

Amended Petition asserted that the Spanish Oaks development

violates Chapter 62, Florida Administrative Code, 4 which, LRAS

contends, disallows the use of a sinkhole to discharge

contaminated water, citing Rule 62 - 522.300(1) and (3). See

Conclusion 90, infra .

Standing

8. LRAS did not allege or prese nt any evidence to prove

that the substantial interests of a substantial number of its

members would be affected by issuance of the ERP to Spanish

Oaks. The Amended Petition alleged that, if LRAS failed to

oppose the ERP, it would not "fulfill it's [sic] objectives

and hence adversely affect the corporation and disappoint it's

[sic] membership." But LRAS did not present any evidence at

the final hearing to prove that its own substantial interests

would be affected by the ERP.

9. LRAS alleged that it ha s standing under Section

403.412(6), Florida Statutes. See Conclusions 74, infra .

LRAS was formed as a Florida not - for - profit corporation in

1962. The evidence was sufficient to prove that LRAS has at

least 25 current members residing in Polk County, wh ere

Spanish Oaks' ERP is proposed. Not only was there testimony

in the depositions introduced into evidence as Spanish Oaks

Exhibits 1, 2 and 3 that there were over 500 members of LRAS,

most of whom would reside in Polk County, exhibits attached to

those depositions included a partial membership list with at

least 25 current members residing in Polk County, 5 in addition

to other members residing in Polk County who testified during

the final hearing.

10. Article II of LRAS' Articles of Incorporation stat es

that LRAS was formed "to promote an understanding and interest

in wildlife and the environment that supports it and to

further the cause of conservation." It also includes language

generally empowering the corporation to "have and exercise all

of the p owers of like corporations not for profit and to do

all and everything necessary, suitable or proper for the

accomplishment of any of the purposes, the attainment of any

of the objects or the furtherance of any of the powers herein

set forth, . . . and to do every other act or acts, thing or

things incident or pertinent to or growing out of or connected

with the aforesaid objects, purposes or powers or any of

them." Finally, it includes the admonition that enumeration

of specific "powers and objects . . . shall not in anyway be

construed as any limitation or derogation of any power or

object herein specifically named or any general power which

this corporation might otherwise have."

11. Spanish Oaks 6 contends that LRAS has no standing in

part because the Petition and Amended Petition was " ultra

vires " - i.e. , that, although there was no evidence that LRAS

was dissolved or otherwise not in good standing as a duly -

organized not - for - profit corporation, the signers did not have

the legal authority to sign or fi le either the Petition or the

Amended Petition on behalf of LRAS under its articles of

incorporation and by - laws.

12. At the time of its formation in 1962, LRAS had

eleven charter members, six officers, and ten directors.

Article VI of the Articles of Incorporation provided, in

pertinent part:

The affairs of the corporation shall

be managed by a board of directors of "not

less than five members of the officers

provided for in this charter and the Board

of Directors shall elect a president, a

first vi ce president, a second vice

president, a secretary and a treasurer.

The number of directors shall be fixed by

the by - laws of the corporation, but in no

instance shall the number of directors be

less than five. The Board of Directors may

establish an Exec utive Committee from the

members of the Board of Directors by

resolution and may provide for the setting

up of advisory boards or councils. The

Board of Directors shall be elected from

the voting members of the corporation at an

annual meeting to be held in June of each

year at a date to be determined by the

Board of Directors at least fifteen days

prior to such meeting. A quorum for the

purpose of transacting business shall

consist of those present.

The officers and directors herein

provided for shall serve until the next

general election of the corporation,

provided, however, that in the event of any

vacancies prior to that time the Board of

Directors may fill such vacancies by

majority vote.

There was no evidence of any amendment to those provisions in

the articles of incorporation.

13. Article I of LRAS' By - Laws, as last revised on

April 7, 2002, provided for a president to: "(a) preside at

meetings of the Society and of the Board of Directors; . . . ;

(c) decide all questions of order, and act as judge in

elections and declare the results; (d) appoint, subject to the

Executive Committee's approval, the chairmen of the Standing

Committee, and the chairmen of such special committees as may

be authorized by the Board; (e) perform such other duties as

the Board or the By - Laws may from time to time assign." It

also provided for: a first vice - president, who was to preside

and perform the duties of the president in the absence or

inability of the president; a second vice - president, who was

to preside and perform the duties of the president in the

absence or inability of the president and first vice -

president; a third vice - president to coordinate all field

activities; a fourth vice - president to coordinate all

membership activities; a fifth vice - presiden t to be the

newsletter editor; a recording secretary to keep an accurate

record of all meetings, act as secretary of the board of

directors, keep a record of attendance at meetings of the

board of directors, and act as custodian of all records and

papers; a corresponding secretary, who was to perform the

duties of the recording secretary in the absence or inability

of the recording secretary; and a treasurer.

14. Article II of the By - Laws provided for the board of

directors to "be composed of all officer s and committee

chairmen, and other members who may be appointed by the

President." It also provided that the board of directors had

the "power to fill vacancies in the list of officers." It

also provided: "A majority of officers shall have the power

to carry on the affairs of the Society in the event of

emergency, between Board Meetings."

15. Article III of the By - Laws provided for committees

to be established by the president as deemed necessary as well

as apparently for appointment of individuals with special

responsibilities.

16. Article IV provided for elections, including: "A

Nominating Committee, consisting of a Chairman and two other

members appointed by the President and announced at the

January Board Meeting, shall submit a slate of offi cers at the

March meeting for approval by the Board, to be voted on at the

Annual Meeting of the Society in April. . . . A majority of

the votes cast shall constitute an election. If there are no

nominations from the floor, the slate of officers shall stand

as presented." It also provided: "Elected officers shall be

elected for a term of one year, and shall hold office until

their successors have been elected." The president was

limited to two consecutive terms, or a third consecutive term

upon major ity vote of the board of directors.

17. Article V of the By - Laws provided for: open

meetings of the board of directors to be held on the second

Wednesday of each month September through May, unless changed

on ten days notice to each board member; speci al meetings at

the call of the president or written request of five members,

with "due notice"; and one annual meeting to be held in April,

unless changed by direction of the board.

18. Article VI provided that a majority of the board

would constitute a quorum, provided at least two officers were

present, and that 15 members, including at least four Board

members, would be a quorum for the annual meeting.

19. Article VIII provided that membership in National

Audubon, Florida Audubon or LRAS would co nstitute membership

in all three levels for anyone living within the LRAS area.

20. As indicated above, there are inconsistencies

between the Articles of Incorporation and the By - Laws. For

example, the Articles of Incorporation provide for an annual

me eting in June, while the By - Laws provide for the annual

meeting to take place in April, unless changed by the board of

directors. In addition, the By - Laws provide for more officers

than the Articles of Incorporation. Finally, the Articles of

Incorporatio n provide that a quorum at the annual meeting

shall consist of those present, while the By - Laws provide for

a quorum of a majority of the board, provided at least two are

officers, and that 15 members, including at least four board

members, would be a quor um for the annual meeting. Under

Section 617.0206, Florida Statutes, by - laws must be consistent

with the articles of incorporation.

21. Even allowing for the inconsistencies between the

Articles of Incorporation and the By - Laws, the evidence

suggested that, notwithstanding the formal and detailed (if

somewhat inconsistent) provisions in the Articles of

Incorporation and By - Laws, LRAS has operated less formally and

with less attention to those details at least in recent years,

in part because it is a tot ally - volunteer organization and

seems always to be looking for members to share in the tasks

of continued operation. Any member who expresses interest in

the business of the organization is welcome to volunteer to be

on the board of directors. Any volunt eer is virtually assured

of becoming a board member. There certainly are no contested

elections. Spanish Oaks questions whether the process used

results in the legitimate election of members of the board of

directors and appointment of officers in accord ance with the

Articles of Incorporation and By - Laws.

22. The evidence presented by Spanish Oaks as to status

of LRAS' board of directors and officers was unclear. It

consisted of the deposition testimony of Paul Anderson, Carrie

Plair, and Chuck Geanan gel, along with minutes attached as

exhibits to the Anderson deposition. In addition, while not

actually introduced in evidence at the final hearing, the

minutes of the May 2005 meeting of the board of directors were

attached to and formed part of the bas is for the Motion for

Summary Recommended Order which was filed by Spanish Oaks and

joined by SWFWMD. In addition, the PRO filed by Spanish Oaks

cited to these attachments to the Motion for Summary

Recommended Order. 7

23. The evidence indicates that, n otwithstanding

provisions in the Articles of Incorporation and By - Laws, for

the last two years LRAS has operated using a five - member

steering committee (also referred to as an executive board)

instead of a president. Designed to relieve the burden on

long - serving volunteer president, Pat Herbert, the idea was

that the steering committee would rotate responsibility for

conducting board meetings, so that each committee member would

conduct two meetings a year.

24. Anderson and Plair testified that they we re on the

LRAS Steering Committee, along with Geanangle, Bill Karnofsky

and Mae Hartsaw. Plair testified that all members of the

Steering Committee are members of the board of directors,

along with all other officers. Anderson also named several

other of ficers from memory -- Liz Purnell, Paul Fellers (a vice -

president), Gary McCoy (membership chair), and Herman Moulden

(newsletter editor). He deferred to a list of board members,

which he did not have with him and which was not placed in

evidence. Plair na med a few other board members -- Bob Snow,

Gina Lucas, Gil Lucas -- along with Fellers.

25. The minutes placed in evidence by Spanish Oaks all

state that they are minutes of board of directors meetings and

do not refer to an annual general membership meetin g.

However, Anderson testified that a board of directors meeting

is combined with the annual general membership meeting. He

believed it was in December but was not sure. Geanangel

testified that the annual general membership meeting was in

the spring, w hich was consistent with Plair's recollection,

and was noticed as such. Plair testified that there generally

were meeting agendas for all board of directors meetings (one

of which, according to the testimony, would be the annual

general membership meeting ). No notices or agendas of

meetings were placed in evidence.

26. The minutes placed in evidence started with the

September 2003 meeting of the board of directors. According

to the minutes, Karnofsky conducted the meeting and also

presented a treasure r's report, indicating that he also was

the Treasurer at the time. Herbert, Louise Lang, Hartsaw,

Plair, Paul and Janet Anderson, Ann Pinner, Gil and Gina

Lucas, Paul Fellers, and Rae Bourqueim also attended.

Bourquein announced a newsletter deadline. P inner was looking

for volunteers. Under old business, the rotation for

conducting the next several meetings was announced: Karnofsky

for October 2003, Plair for November and December 2003, Paul

Anderson in January and February 2004, and Hartsaw in March

and April 2004. Janet Anderson was congratulated on the job

she was doing as "Publicity Chairperson." A December 2003

Christmas party was announced. Motions were made or seconded

by Gil Lucas, Paul Anderson, Bourqueim, Fellers, and Hartsaw

(suggesting t hat they were members of the board of directors).

The minutes were recorded by Gina Lucas, as "Secretary Pro

Tem." There was no other indication in those minutes as to

who the officers and board members were.

27. The minutes of the October 2003 meetin g indicate

that the meeting was conducted by Herbert, not Karnofsky, who

was unable to attend due to illness. Nine others attended,

including the Andersons, Plair, the Lucases, Fellers,

Bourquein, Herbert, and Purnell, who was the Recording

Secretary.

2 8. The November 2003 minutes indicate that Plair

conducted the board meeting. Hartsaw, Bourquein, Geanangel,

Karnofsky, the Lucases, Fellers, Marvel Loftus, the Andersons,

Ron Butts, Herbert, and three others also attended, along with

Purnell, the Record ing Secretary. Motions were made or

seconded by Paul Anderson, Hartsaw, Fellers, Herbert,

Geanangel, and Janet Anderson.

29. The minutes of the January 2004 meeting of the board

of directors indicate that Paul Anderson conducted the

meeting, Karnofsky presented a treasurer's report, and Purnell

was the Recording Secretary. Hartsaw and Geanangel attended

the meeting, along with the Andersons, the Lucases, Herbert,

Lang, Loftus, and two others. A motion was made by Herbert

and seconded by Loftus.

30. According to the minutes of the February 2004

meeting of the board of directors, it was conducted by Paul

Anderson again, again included Karnofsky's treasurer's report,

and again was recorded by Purnell. Janet Anderson, Lang,

Plair, Hartsaw, the Lucases , Geanangel, and three others also

attended. The minutes indicate that Chuck Geanangel would

conduct the March 2004 meeting. They also included the

reports of several others, including Plair and Hartsaw,

without specifying whether they were officers. Th e minutes

indicated that the slate of candidates would be the same as

the current officers, but they do not specify who the current

officers were, or whether the reference to "officers" was

meant to include board members.

31. The minutes of the March an d April 2004 meetings,

which were conducted by Geanangel and also attended by

Hartsaw, the Andersons, Bourquein, Karnofsky, Purnell, Loftus,

Pinner, Plair, Fellers, and others. Motions were made or

seconded by Herbert, Paul Anderson, Hartsaw, and Loftus.

These minutes do not reveal any more information about who the

officers were but do reflect that Ron Butts was willing to be

on the board of directors and would be contacted about the

position.

32. The minutes indicate that a board of directors

meetin g was held on May 12, 2004, and that it was conducted by

Anderson again and was attended by 13 people, including Plair,

Hartsaw, Butts, and Geanangel. The minutes do not mention its

being a general membership meeting, do not mention any voting,

and do not mention any nominations from the floor for

membership on the board of directors. They indicate that a

new membership chair volunteer was called for and that

Karnofsky would be asked to conduct the next meeting in

September 2004. Motions were made or sec onded by Hartsaw,

Butts, Geanangel, and Loftus.

33. The September 2004 minutes indicate that the board

meeting was conducted by Geanangel, not Karnofsky, who was

absent and did not present his treasurer's report. Plair, the

Andersons, Butts, and Ann Pi nner attended. Motions were made

or seconded by Janet Anderson, Geanangel, Butts, Plair, Paul

Anderson, and Pinner. A House Interior Committee was formed,

with Plair, Susie Brantley, and Gina Lucas as members.

Janet Anderson recorded the minutes in Purn ell's absence.

34. According to the minutes, Geanangel also conducted

the October 2004 meeting of the board, which was also attended

by Bourquein, Karnofsky (who gave the treasurer's report),

Pinner, Plair, the Andersons, Paul and Donna Fellers, Butts,

the Lucases, and Purnell, the Recording Secretary. Gina Lucas

reported for the House Interior Committee. Motions were made

or seconded by Butts, Loftus, and Paul Fellers.

35. According to the minutes, Plair conducted the

November 2004 meeting of the b oard, which was also attended by

Karnofsky (who gave the treasurer's report), Pinner, the

Andersons, Hartsaw, Butts, one other person, and Purnell, the

Recording Secretary. It was announced that Bourquein was

resigning from her position as Newsletter Edit or. There was

no replacement yet.

36. The next minutes were for a board meeting in

January 2005. Paul Anderson conducted the meeting, which also

was attended by Geanangel, Plair, Karnofsky (who gave the

treasurer's report), Hartsaw, Gary McCoy, Pinner , Paul

Fellers, the Lucases, Butts, one other person, and Purnell,

the Recording Secretary. McCoy was introduced as the new

Membership Chairman, and it was announced that Herman Moulden

had accepted responsibility for the newsletter and website.

Geanange l reported on Polk County's desire to use the Saddle

Creek property owned by Audubon of Florida for water storage,

flow, and quality purposes. Leadership vacancies for Nature

Faire and Corresponding Secretary were announced. A motion

was made by Pinner and seconded by Hartsaw.

37. According to the minutes, the February 2005 meeting

was conducted by Paul Anderson. Plair, Karnofsky, Butts,

McCoy, Hartsaw, the Andersons, Moulden, Geanangel, Pinner,

Paul Fellers, and Purnell attended. Moulden solicited

articles for the newsletter. It was suggested that an

invitation to serve on the board be extended to Bob Snow.

Motions were made or seconded by Butts, Janet Anderson, Plair,

and Pinner. Purnell recorded the minutes.

38. According to the minutes, th e March 2005 meeting was

conducted by Hartsaw. The Andersons, Paul Fellers, Moulden,

McCoy, Butts, Karnofsky, Plair, Geanangel, and one other

person also attended. McCoy presented a membership report,

and Moulden reported on the newsletter. Geanangel re ported on

negotiations with Polk County on the Saddle Creek property.

Motions were made or seconded by Paul Anderson, Fellers, and

Karnofsky. Hartsaw would chair the April meeting. Paul

Anderson recorded the minutes in Purnell's absence.

39. Accordin g to the minutes, the April 2005 meeting was

conducted by Hartsaw. Pinner, McCoy, Karnofsky, the

Andersons, Moulden, the Lucases, Butts, Plair, Paul Fellers,

Purnell (the Recording Secretary), and one other person also

attended. Karnofsky gave his treasu rer's report, Moulden

asked for newsletter articles, and a nominating committee was

appointed, consisting of Paul Anderson, Karnofsky, and Plair.

A motion was made by Karnofsky and seconded by Loftus. The

real need for a corresponding secretary was disc ussed.

40. According to the minutes, 8 the May 11, 2005 meeting

was conducted by Karnofsky. Plair, Butts, the Andersons,

Pinner, McCoy, Moulden, Geanangel, Purnell (the Recording

Secretary), Donna Stark, and one other person also attended.

Motions were made by Paul Anderson and seconded by Pinner.

The minutes reflect a nominating committee report which

included: a five - member Steering Committee of Karnofsky,

Hartsaw, Geanangel, Plair, and Paul Anderson; Hartsaw as Vice -

President for Programs; Geanange l as Vice - President for

Conservation; Paul Fellers as Vice - President for Field Trips;

McCoy as Vice - President for Membership; Moulden as Vice -

President for News Letter; Karnofsky as Treasurer; and Purnell

as Recording Secretary. Also nominated as members of the

board of directors were: Janet Anderson, Louise Lang, Marvel

Loftus, the Lucases, Butts, McCoy, Moulden, Snow, Pinner, and

six others. No voting or nominations from the floor are

reflected in the minutes.

41. While the evidence was not clear, i t appears from

the testimony and minutes that all those attending the board

of directors meeting on May 11, 2005, except for Donna Stark

and one other person, were officers or otherwise members of

the board of directors under the Articles of Incorporation and

the By - Laws. The minutes of the February 2004 board meeting

state that the "LRAS Candidate slate will be the same as the

current officers." It appears that they included at least

Karnofsky, Bourqueim, and Purnell and that Karnofsky, Plair,

Paul Ander son, Hartsaw, and Geanangel were on the steering

committee. Assuming the use of the word "officers" in the

minutes meant to include the current board members who were

not officers, it appears that they also would have included

Herbert, Lang, Janet Anderso n, Pinner, the Lucases, Fellers,

Loftus, and Butts. There are no minutes mentioning a noticed

general membership meeting or election of the board of

directors in the spring of 2004. If there was one, the

minutes do not indicate that there were nomination s from the

floor. If there was a noticed general membership meeting for

purposes of electing the board of directors, with a quorum,

and there were no nominations from the floor, either the slate

of current officers (and, probably, directors) "stood," or t he

officers and board of directors would continue to serve until

the next general election, under Article VI of the Articles of

Incorporation. In either case, vacancies prior to that time

could be filled by the board of directors by majority vote,

and it would appear that, at the beginning of the board

meeting on May 11, 2005: the officers included at least

Karnofsky, Purnell, McCoy, and Moulden; the steering committee

still consisted the same five; and other board members

included at least Lang, Janet A nderson, Pinner, the Lucases,

Fellers, Loftus, and Butts.

42. Only 12 individuals appearing to be board members

attended the meeting on May 11, 2005. While this would not be

a quorum under the By - Laws, it would be a quorum under the

Articles of Incorpo ration, which would control over

inconsistent By - Laws. 9 Assuming the May 2005 meeting was the

noticed general membership meeting, since the minutes do not

reflect any nominations from the floor, the slate stood as

presented under Article IV of the By - Laws . If not, (or if the

By - Laws established the necessary quorum), under Article VI of

the Articles of Incorporation, the current officers and board

of directors would serve until the next general election. In

either case, it appears that authorized officer s and directors

were in place and in attendance at the board meeting on

May 11, 2005, and that there was a quorum for transacting

business under the Articles of Incorporation. In any event,

Spanish Oaks did not prove the contrary.

43. According to the May 2005 minutes, as well as the

testimony at the final hearing, Donna Stark made a

presentation asserting that Spanish Oaks was using at least

three sinkholes to collect runoff water, instead of digging

retention ponds, contrary to legal requirements and polluting

the underlying aquifer. She asked LRAS to consider filing an

administrative challenge to the ERP.

44. After the presentation, the board decided that the

Steering Committee would continue to investigate and make a

decision as to what role LRA S should have in the future.

Although the minutes do not reflect a vote on a resolution,

the assigned task of the Steering Committee was like the role

of the "Executive Committee" referred to in Article VI of the

Articles of Incorporation. The Steering C ommittee reviewed

the information presented by Starks, decided to file a

challenge, and invited Starks to help draft the Petition,

which was signed by four members of the Steering Committee

between May 31 and June 2, 2005, as well as the Amended

Petition s igned by "LRAS Steering Committee/Acting President

Carrie Plair" on July 6, 2005. Starks actually drafted almost

all of the Petition and Amended Petition.

45. The subject of the challenge in the Petition and

Amended Petition is virtually identical to a challenge to

Spanish Oaks' ERP that was filed by Starks on behalf of her

not - for - profit corporation, Central Florida EcoTours, in early

May 2005 but was time - barred and dismissed because Starks and

Ecotours got mailed notice of the issuance of the ERP to

Spanish Oaks. Spanish Oaks implied that Starks told LRAS

about the fate of the EcoTours challenge and asked LRAS to

file its Petition and Amended Petition at her behest to block

the Spanish Oaks development for her ulterior motives. But

those allegations were denied by LRAS and were not proven.

Alleged Sinkholes

46. The principal concern raised by LRAS, both in its

Amended Petition and at hearing, is that one or more of the

retention ponds constructed on Spanish Oaks is located over a

sinkhole. LRAS i s of the view that this alone should mandate

that the ERP application be denied.

47. Retention ponds are often located in depressional

areas since these land features are generally the lowest spots

on a property and allow the engineers designing a surfa ce

water management system to utilize the land’s natural drainage

configuration. A relic sinkhole, as contrasted to an active

sinkhole, has either been sealed or has self - sealed, so that

there is no connection between the sinkhole and the underlying

aquif er. An active sinkhole provides a direct connection --

referred to by both LRAS’ and Spanish Oaks' experts as a “good

communication” -- between the surface and the aquifer.

48. Retention ponds are intended to allow infiltration

of water through the soils u nderlying the pond bottom. This

infiltration through soil layers provides water quality

treatment, and it is necessary to ensure that the bottom

surface of a retention pond is sufficiently separated by soils

from the top of the aquifer.

49. If an activ e sinkhole develops in a retention pond,

SWFWMD requires that some corrective action be taken.

Generally, this involves refilling the cavity formed by the

sinkhole. However, because retention ponds are designed to

allow infiltration through the pond bott oms, care must be

taken to ensure that any fill does not impede this

infiltration function.

50. The bottoms of the retention ponds at Spanish Oaks

are approximately seven feet below natural grade. The

Floridan Aquifer in the Spanish Oaks vicinity is ap proximately

75 feet below grade. The separation between the pond bottoms

and the limestone that is part of the aquifer is sufficient to

provide adequate water quality treatment.

51. Soil borings done around the perimeter of each of

the ponds indicate t he presence of clays and clayey sands

between the pond bottoms and the aquifer. These soil layers

act as an aquitard that impedes the migration of water into

the bedrock (and upper soils into lower cavities, voids, or

ravel zones, which are areas of loose , unconsolidated soils

capable of further downward subsidence). In each instance,

the depth at which the aquitard occurs is below the bottom

depth of the retention ponds.

52. There was no competent evidence admitted at hearing

to suggest that there a re active sinkholes in or under any of

the three retention ponds on Spanish Oaks. To the contrary,

the SWFWMD personnel who have been on the site testified that

they saw nothing on the site that indicated the presence of an

active sinkhole. Contractors a nd engineers who were on the

site prior to and during construction of Spanish Oaks stated

that they were not aware of any active sinkholes.

53. Nonetheless, because LRAS made the allegation that

there were sinkholes on the site, Spanish Oaks retained a

geotechnical engineer with expertise in sinkholes, Sonny

Gulati, to conduct a sinkhole investigation of the three

retention ponds. Mr. Gulati used testing protocols that are

generally utilized to determine whether sinkhole activity has

caused damage to a b uilding or other structure. Mr. Gulati

observed no damage to the retention ponds and his

investigation revealed no sinkhole activity onsite. (LRAS’

expert also was unaware of any damage to the retention ponds.)

54. Mr. Gulati used both ground penetratin g radar (GPR)

and standard penetration testing (SPT) during his

investigation. GPR makes use of repetitive, short - duration,

electromagnetic waves, which are deflected back to a receiver

by interfaces between materials. GPR detects subsurface

features s uch as sinkholes and voids through the reflected

radar signal.

55. GPR must be conducted with the transmitter in

contact with the ground surface. It cannot be used over a

water surface. Mr. Gulati took GPR readings around each of

the three retention p onds, in two circles, one contained

within the other. GPR data collected on the Spanish Oaks site

revealed no subsurface anomalies.

56. SPT is described in Mr. Gulati’s report as:

a widely accepted method of in - situ testing

of foundation soils (ASTM D - 1586). A two -

foot long, two - inch outside diameter, split

barrel (“spoon”) sampler, attached to the

end of drilling rods, is driven 18.0 inches

into the ground by successive blows of a

140 - pound hammer freely dropping 30.0

inches. The number of blows nee ded for

each six (6) inches of penetration is

recorded. The sum of the blows required

for penetration of the second and third

six - inch increments of penetration

constitutes the test result or N - value.

LRAS Exhibit 5, p. 23.

57. An N - value of less than 2 indicates the presence of

a ravel zone, a subsurface area with voids or loose soils into

which soils from upper strata can travel and which acts as a

conduit between strata. An N - value of less than 4, in

combination with a loss of drilling fluid, 10 may also indicate

a ravel zone. Solutioned calcareous ravel zones are those

ravel zones that occur in the limestone that forms the top of

the Floridan Aquifer.

58. Based on his investigation, Mr. Gulati concluded as

follows:

Our investigation did not re veal the

existence of specific conditions such as

cavities or voids, solutioned calcareous

ravel zones, or the presence corroded

bedrock conditions located above the dense

bedrock stratum indicative of sinkhole

activity at the subject site. Based on the

i nterpretations of our recent subsoil

investigation, site reconnaissance,

available background and geologic data, it

is our opinion that the subject site has

not been impacted by a sinkhole related

activity. In our professional opinion, the

scope of work i ncluded in this analysis is

of sufficient scope to eliminate sinkhole

activity at the subject site within a

reasonable professional probability.

LRAS - 5 at 18 (emphasis in original). SWFWMD's expert agreed

that there is no direct connection to the Florida n Aquifer.

59. Marc Hurst, a geologist who testified for LRAS,

opined that Mr. Gulati’s sinkhole investigation was

insufficient to demonstrate whether or not the Spanish Oaks

retention ponds were constructed over sinkholes. 11 However,

Mr. Hurst offered no opinion as to whether the retention ponds

are located over active sinkholes. Nor did Mr. Hurst

specifically disagree with Mr. Gulati’s conclusion that the

Spanish Oaks retention ponds have not been impacted by active

sinkholes. 12 To the contrary, Mr. Hurst admitted that the

retention ponds were holding water on the day that he observed

them -- indicating that to him that the ponds were not acting as

a strong conduit to the aquifer. Mr. Gulati also noted the

significance of the presence of water in the ponds, stating

that, if there were active sinkholes in the ponds, they would

not hold water. 13

60. The only suggestion of any sinkhole - related damage

to the retention ponds came from Donna Stark, who testified

that George Wilt -- a heavy equipment operato r at the site

incorrectly identified by Ms. Stark as “an employee of Spanish

Oaks” -- told her that there had been a sinkhole collapse during

the excavation of Pond A. This hearsay testimony was directly

contradicted by Mr. Wilt himself, who testified that he made

no such statement.

61. Despite the allegation in LRAS’ petition regarding

observations of collapse of sinkhole by Donna Stark, Ms. Stark

herself admitted at hearing that she did not witness any

actual collapse. Rather, she testified that, on Ja nuary 25,

2005, she saw what she believed to be the aftermath of a

sinkhole collapse.

62. Stark may have been confused by the amount of

excavated material being stored on the ground surface around

the pond. 43,906 cubic yards of dirt was excavated from Pond

A alone and was stacked to a height of 8 - 10 feet higher than

the natural ground elevation.

63. Others who observed the site on January 25, 2005,

saw no evidence of a sinkhole collapse. Tim King, a Florida

Fish and Wildlife Conservation Commissi on employee who was

with Ms. Stark on January 25, 2005, merely reported seeing

pond excavation in process. Laura Howe, a SWFWMD employee who

inspected the site on that date, observed that “[i]t appears

depth of ponds are [p]robably close to permitted dept h.”

64. Moreover, Ms. Stark admits that, on February 10,

2005, she observed the ponds to be “[s]even and a half feet,

or six and a half, whatever it should be.” Ms. Stark’s

suggestion that the collapse was filled in between January 25

and February 10, 2005, is belied by testimony that repairing a

sinkhole collapse of the size suggested by Ms. Stark would

have required much more material than was available. (No dirt

was imported onto the site.) The evidence admitted at hearing

requires a finding that t here was no sinkhole collapse onsite.

65. Spanish Oaks provided reasonable assurance that the

System was designed and constructed to include sufficient

separation between the pond bottoms and the Floridan Aquifer

to prevent groundwater contamination.

Construction of Berms

66. LRAS contended in its Amended Petition that Spanish

Oaks failed to give notice prior to constructing clay cores in

some of the berms onsite, as required as a condition of the

ERP, and that this failure constituted failure to pro vide

reasonable assurances. 14

67. The interconnection of the three ponds that are part

of the System will allow them to function as one pond, while a

perimeter berm around the entire Spanish Oaks project will

ensure that surface water runoff is retained onsite and

directed toward the ponds. Ponds A and C are located,

respectively, at the southeast and northeast corners of

Spanish Oaks. 15 The design plans submitted with the ERP

application indicated that the berms alongside the eastern

side of Ponds A a nd C are to include clay cores, a design

feature that was included as a specific condition in the ERP.

The purpose of the clay cores was to prevent offsite impacts

caused by lateral movement of water.

68. The specific conditions of the ERP also require d

that Spanish Oaks notify SWFWMD's "Surface Water Regulation

Manager, Bartow Permitting Department [William Hartmann], at

least 48 hours prior to commencement of construction of the

clay core, so that District staff may observe this

construction activity. "

69. LRAS proved that Mr. Hartmann did not personally

receive a phone call prior to the construction of the clay

cores, as required by the ERP, and that SWFWMD staff did not

observe the construction. Mr. Hartmann explained that this

constituted a perm it condition compliance issue which would

prevent the ERP from being transferred to the operation phase

until SWFWMD was assured that the clay core was, in fact,

constructed as required.

70. To confirm proper construction of the clay core,

Spanish Oaks undertook soil borings. SWFWMD staff engineer

Sherry Windsor was onsite to observe the soil borings.

Spanish Oaks also submitted a report from its engineering

consultant certifying that the clay cores had been properly

constructed in accordance with the ERP.

71. SWFWMD typically relies on a project engineer’s

signed and sealed certifications of compliance matters.

SWFWMD staff observations and the certification provided by

the Spanish Oaks engineer satisfactorily resolved the issue of

proper clay core construction. Failure to notify Mr. Hartmann

prior to construction, as required by the ERP, does not

undermine Spanish Oaks' provision of the necessary reasonable

assurance for issuance of the ERP.

CONCLUSIONS OF LAW

Standing

72. Spanish Oaks and SWFWMD ch allenge LRAS' standing

both under Sections 120.569 and 120.57 and under Section

403.412(6), Florida Statutes.

73. Party status under Sections 120.569 and 120.57 can

be based on proof that "substantial interests will be affected

by proposed agency acti on." § 120.52(12)(b), Fla. Stat. This

requires proof of "an injury in fact which is of sufficient

immediacy and is of the type and nature intended to be

protected" by the substantive law. § 403.412(5), Fla. Stat.

See also Agrico Chemical Co. v. Dept. o f Environmental Reg. ,

406 So. 2d 478 (Fla. 2d DCA 1981). An organization like LRAS

may allege and prove either that its own substantial interests

or that the substantial interests of a substantial number of

its members will be affected. See Florida Home Builders Ass'n

v. Dept. of Labor and Employment Security , 412 So. 2d 351

(Fla. 1982); Farmworker Rights Organization, Inc. v. Dept. of

Health, etc. , 417 So. 2d 753 (Fla. 1st DCA 1982). As found,

no evidence was presented to prove standing under either of

those options.

74. Spanish Oaks and SWFWMD contend that LRAS does not

have party status under Section 403.412(6) because, while a

not - for - profit Florida corporation formed in the 1960s, it

does not have more than 25 current members and was not "formed

f or the purpose of the protection of the environment, fish and

wildlife resources, and protection of air and water quality."

As found, LRAS proved that it has more than 25 current

members. In addition, LRAS' Articles of Incorporation state

that LRAS not o nly was formed "to promote an understanding and

interest in wildlife and the environment that supports it and

to further the cause of conservation" but also that mention of

this specific purpose was not intended to limit either its

power under that specifi c purpose or any general power it

might otherwise have.

75. It is concluded that, to determine whether LRAS'

Articles of Incorporation meet the requirements of Subsection

(6) of the statute, Subsection (6) must be read in pari

materia with Subsection (5 ), which applies "[i]n any

administrative, licensing, or other proceedings authorized by

law for the protection of the air, water, or other natural

resources of the state from pollution, impairment, or

destruction . . . ." Conservation of resources protec ts them

from pollution, impairment, or destruction. It is concluded

that the language of LRAS' Articles of Incorporation comes

within the meaning of Subsection (6). Use of virtually the

identical statutory language is not mandatory. For these

reasons, i t is concluded that LRAS has standing under Section

403.412(6).

Authorized Corporate Filing

76. Spanish Oaks also contends that the individuals who

signed and filed the original Petition and Amended Petition

did not have legal authority to do so on LRAS ' behalf (and

that they did not prove standing as individuals).

77. Florida not - for - profit corporations can act only

through, or as authorized by, its board of directors (as

stated a LRAS’ Articles of Incorporation.) See § 617.0801,

Fla. Stat. (“[a]ll corporate powers must be exercised by or

under the authority of, and the affairs of the corporation

managed under the direction of, its board of directors”);

Finding 12, supra . See also Yarnell Warehouse & Transfer,

Inc. v. Three Ivory Bros. Moving Co. , 2 26 So. 2d 887, 890

(Fla. 2d DCA 1969) (“[t]he management of corporate business is

vested in the directors of the corporation”).

78. Section 617.0803(3) requires that the board of

directors of a not - for - profit corporation be elected or

selected in the mann er set forth in the corporation’s articles

of incorporation. Spanish Oaks contends that LRAS does not

have a properly elected board of directors and that this

administrative proceeding was neither brought nor authorized

by the board of directors on behal f of LRAS.

79. As LRAS points out, Section 617.0304 provides that

only a not - for - profit corporation’s members, the corporation

itself, or the state attorney general can challenge the

validity of corporate action “on the grounds that the

corporation lack s or lacked the power to act." Spanish Oaks

takes the position that it is not here challenging the power

of LRAS to act, but only whether certain individuals had the

authority to act on the corporation’s behalf. But the case

cited by Spanish Oaks in supp ort of this distinction, World of

Life Ministries , 778 So. 2d 360, 364 (Fla. 1st DCA 2001),

involved a suit brought by members and the not - for - profit

corporation itself against corporate officers, as authorized

under Section 617.0304(2)(b), on the ground t hat the authentic

board of directors did not vote on amendments to the articles

of incorporation purporting to shift power and authority from

the authentic board of directors to the defendants. It does

not stand for the proposition that an outsider, other than the

attorney general, can mount a challenge questioning the

authority of individuals who purport to act for a corporation.

80. Even assuming that Section 617.0304 does not

prohibit Spanish Oaks' challenge to the validity of the

Petition and Amende d Petition under the circumstances of this

case, the law is clear that "the board of directors ha[s] the

power to appoint and authorize a committee of their number to

act for the corporation in a particular matter." See Yarnell

Warehouse & Transfer, Inc. v. Three Ivory Bros. Moving Co. ,

supra at 891. As found, Spanish Oaks did not prove that the

authentic LRAS board of directors did not validly delegate to

its Steering Committee the authority to investigate and act on

the matters presented by Donna Starks . It is concluded that

the burden of proof on this issue was on Spanish Oaks, as it

also would be on a party asserting that a corporate act was

ultra vires , or a party seeking to "pierce the corporate veil"

and have a court disregard the corporate entity. Cf. Dania

Jai - Alai Palace, Inc. v. Sykes , 450 So. 2d 1114, 1120 (Fla.

1984); Computer Center, Inc. v. Vedapco, Inc. , 320 So.2d 404,

407 (Fla. 4th DCA 1975).

Burdens of Proof and Persuasion, ERP Criteria, and

Reasonable Assurance

81. This is a de nov o proceeding designed to formulate

final agency action. See Hamilton County Board of County

Commissioners v. State Department of Environmental Regulation ,

587 So. 2d 1378 (Fla. 1st DCA 1991); Florida Department of

Transportation v. J.W.C. Company, In c., 3 96 So. 2d 778, 786 -

787 (Fla. 1st DCA 1981); § 120.57(1)(k), Fla.Stat.

82. As applicant, Spanish Oaks has the ultimate burden

of proof and burden of persuasion. See Florida Department of

Transportation v. J.W.C. Company, Inc ., supra at 786 - 789.

Upon pres entation of a prima facie case of credible evidence

of reasonable assurances and entitlement to the permit, the

burden of presenting evidence can be shifted to the

Petitioner, as permit challenger, to present evidence of

equivalent quality to refute the ap plicant’s evidence of

reasonable assurances and entitlement to the permit. Id. ;

Ward v. Okaloosa County , 11 F.A.L.R. 4217, 4236; 1989 WL

645052 (DER 1989).

83. Upon agreement of the parties, SWFWMD's file of

record for ERP No. 44025789.001 containing the permit

application, all supporting information and documents, and the

agency’s analysis and decision concerning issuance of the

permit, was submitted as Joint Exhibit 1.

84. Joint Exhibit 1 established a prima facie case of

reasonable assurances and en titlement to the permit. Thus, as

permit challenger, LRAS had the burden of producing evidence

of equivalent quality to refute Spanish Oaks’ prima facie

case. Petitioner’s burden cannot be met by mere speculation

on what might occur. Citizens Against Bl asting Inc., v.

Department of Environmental Protection and Angelo’s Aggregate

Materials Ltd ., 23 F.A.L.R. 2463, 2001 WL 1190935 (DEP 2001);

Chipola Basin Protective Group Inc., et al. v. Department of

Environmental Regulation , 11 F.A.L.R. 467, 480 - 481, 198 8 WL

185574, at *3 - 7 (DER 1988).

85. If Petitioner presents evidence of equivalent

quality, the question becomes whether, taking all the evidence

into consideration, Spanish Oaks has proven reasonable

assurances and entitlement to the permit by a preponde rance of

the evidence. A “preponderance” of the evidence means the

greater weight of the evidence. See Fireman’s Fund Indemnity

Co. v. Perry , 5 So. 2d 862 (Fla. 1942).

86. Issuance of an ERP must be based solely on

compliance with applicable permit cr iteria. See Council of

the Lower Keys v. Charley Toppino & Sons, Inc. , 420 So. 2d 67

(Fla. 3d DCA 1983). Reasonable assurance contemplates a

substantial likelihood that the project will be successfully

implemented. See Metropolitan Dade County v. Coscan Florida

Inc ., 609 So. 2d 644 (Fla. 3d DCA 1992). Absolute guarantees

are not necessary, and a permit applicant is not required to

eliminate all contrary possibilities or address impacts that

are only theoretical and cannot be measured in real life. See

City of Sunrise v. Indian Trace Community Development

District , 14 F.A.L.R. 866, 869 (SFWMD 1992); Manasota - 88 Inc.

v. Agrico Chemical Co. and Department of Environmental

Regulation , 12 F.A.L.R. 1319, 1990 WL 128587 (DER 1990).

87. The applicable criteria for the issuance of a

standard general ERP for the Spanish Oaks project are set

forth in Rules 40D - 4.301 and 40D - 4.302, as well as SWFWMD's

Basis of Review (BOR), which is made applicable pursuant to

Rule 40D - 4.301(3).

88. LRAS’ challenge to the ERP alle ges the presence of a

sinkhole or a sinkhole collapse in one or more of the

retention ponds for the Spanish Oaks subdivision, and the

impact that such alleged sinkhole or sinkhole collapse would

have on conditions for issuance relating to groundwater

quali ty.

89. LRAS’ case reflects a basic misperception of the

permitting criteria applicable to surface water management

system retention ponds. Section 6.4.1.b. of the BOR, which

establishes specific design criteria for retention areas,

requires as follows :

Depth – The detention or retention area

shall not be excavated to a depth that

breaches an aquitard such that it would

allow for lesser quality water to pass,

either way, between the two systems. In

those geographical areas of the District,

where there is not an aquitard present, the

depth of the pond shall not be excavated to

within two (2) feet of the underlying

limestone which is part of a drinking water

aquifer.

As found, the Spanish Oaks retention ponds comply with this

criterion.

90. LRAS also contends that the Spanish Oaks retention

ponds violate Rule 62 - 522.300, a rule which, in LRAS’ view,

prohibits the location of a stormwater retention pond in or

over a sinkhole. LRAS’ reading of the rule is incorrect.

Rule 62 - 522.300(1), with certain e xceptions not relevant here,

provides that

no installation shall directly or

indirectly discharge into ground water any

contaminant that causes a violation in the

. . . criteria for receiving ground water

as established in Chapter 62 - 520, F.A.C.,

except wi thin a zone of discharge

established by permit or rule pursuant to

this chapter.

The purpose of a zone of discharge is to provide a mixing zone

“extending to the base of the designated aquifer or aquifers,

within which an opportunity for the treatment, mi xture or

dispersion of wastes into receiving ground water is afforded.”

Fla. Admin. Code R. 62 - 520.200(23). No evidence introduced at

hearing suggests that the surface water runoff that

infiltrates through the bottom surfaces of the Spanish Oaks

retentio n ponds, and then travels approximately 70 feet

through soil before reaching the Floridan aquifer, will exceed

applicable ground water criteria when it reaches the aquifer.

For that reason, the Spanish Oaks retention ponds do not need

a zone of discharge. Rule 62 - 522.300(3) provides that

Other discharges through wells or sinkholes

that allow direct contact with Class G - I,

Class F - I, or Class G - II ground water shall

not be allowed a zone of discharge.

(Emphasis supplied). Classes F - 1, G - 1, and G - II gr oundwaters

are designated for potable use and are located within an

aquifer. Fla. Admin. Code R. 62 - 520.410. “Aquifer” is

specifically defined as “a geologic formation, group of

formations, or part of a formation capable of yielding a

significant amount of ground water to wells, springs or

surface water." Fla. Admin. Code R. 62 - 520.200(2). Unless

the alleged sinkholes allowed "direct contact" with the

Floridan Aquifer, a zone of discharge would be permitted,

assuming one were needed.

91. No evidence introduced at hearing suggests that

discharges from the retention ponds will come into direct

contact with Class G - 1, Class F - 1, or Class G - II groundwaters.

Instead, the discharges from the Spanish Oaks ponds only

indirectly contact a drinking water aquif er, after

infiltrating through tens of feet of separating soil layers.

LRAS has not identified any applicable rule that prohibits the

location of a retention pond in or over a relic sinkhole.

Indeed, the record establishes that the presence of a sinkhole

in or under a retention pond is problematic only if sinkhole

activity affects the approved design of the retention pond.

See Findings 47 and 49, supra .

92. LRAS’s assertion of a sinkhole collapse at Spanish

Oaks during the time frame alleged is contra ry to the greater

weight of the evidence, which established that the ponds have

been constructed and are operating as designed and that there

is no active sinkhole on the Spanish Oaks site that adversely

affects the quality of receiving waters such that st ate water

quality standards would be violated, or that otherwise affects

Spanish Oaks’ ability to provide reasonable assurance of

meeting applicable permitting conditions.

93. LRAS offered no evidence to establish that water

percolating through the Span ish Oaks retention ponds will come

into direct contact with a drinking water aquifer or that a

state water quality standard would be violated by the project.

The greater weight of the evidence established that the

Spanish Oaks retention ponds comply with the applicable

construction requirement as stated in BOR Section 6.4.1.b.

There is more than sufficient soil underlying the Spanish Oaks

retention ponds to assure compliance with this requirement.

94. As found, Spanish Oaks' failure to notify Mr.

Hartm ann before beginning construction of the clay core berm

does not prevent Spanish Oaks from providing reasonable

assurance that permit criteria will be met. As a result,

Spanish Oaks has met its burden of proof and persuasion that

all conditions for issuan ce of the permit have been satisfied

and that it is entitled to the requested ERP.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that SWFWMD issue a final order approving the

issuance of ERP 44025789 .001 to Spanish Oaks. Jurisdiction is

retained to consider Spanish Oaks’ Motion for Attorney's Fees

under Sections 57.105, 120.569(2)(e), and 120.595(1)(a - e), if

renewed within 30 days after issuance of the final order.

DONE AND ENTERED this 10th day of November, 2005, in

Tallahassee, Leon County, Florida.

S

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 10th day of November, 2005.

ENDNOTES

1/ As will be seen, Spanish Oaks and SWFWMD contend that LRAS

actually never filed a Petition or Amended Petition because

the filings were not made or authorized by LRAS' board of

directors.

2/ All statutory citations are to the 2004 codification of

the Florida Statutes.

3/ The Amended Petition also alleged that Spani sh Oaks failed

to follow SWFWMD rules by neglecting to provide for permanent

erosion control measures, but no evidence was presented by

LRAS on this issue, which appears to have been abandoned.

4/ All rule references are to the current codification of the

Florida Administrative Code.

5/ Spanish Oaks and SWFWMD argue that the list does not

specify current membership, but it includes both an "expire

date" and a "renew/paid date" from which current membership

can be ascertained.

6/ SWFWMD joined in t he Motion for Summary Recommended Order

filed by Spanish Oaks on this issue, but its PRO does not

mention the issue.

7/ In discovery, LRAS initially refused to produce these

minutes because they were in draft form and not yet approved

by the board of d irectors, which did not meet again until

September 2005. For that reason, Spanish Oaks questioned

their existence. The minutes of the September 2005 board

meeting were not placed in evidence. However, these minutes

were attached to LRAS' Response to Spa nish Oaks' Motion for

Summary Recommended Order, along with the minutes of an

officers' emergency meeting on September 25, 2005. These

minutes indicated that the minutes of the May 11, 2005,

meeting were not approved until the Emergency Officers Meeting

o n September 25, 2005. Spanish Oaks still questions the

credibility of the minutes from May 11, 2005.

8/ See Finding 22, supra .

9/ See Finding 20, supra .

10/ Loss of drilling fluid may indicate the presence of a

large cavern or ravel zone.

1 1/ Notably, Mr. Hurst has only participated in four sinkhole

investigations and reviewed the reports of approximately six

other such investigations, while Mr. Gulati has conducted

between 700 and 800 during the past ten years.

12/ The anecdotal testim ony of Charles Cook and Tom Jackson

regarding their observations of depressions and “cracks” at

the site several years earlier did not support a finding that

there is an active sinkhole. Mr. Jackson, a geologist for

SWFWMD, was not willing to draw such a conclusion.

13/ Mr. Gulati acknowledged that, in areas where the aquifer

is under artesian pressure, an active sinkhole will hold

water. However, that aquifer condition does not exist in the

vicinity of Spanish Oaks. T. 358.

14/ The Amended Petition a ctually alleged that this was a

permit condition violation requiring revocation of the ERP.

However, it was ruled prehearing that "the Petitioner's

request for revocation actually is a request for a final order

denying Spanish Oaks' application for a perm it" and that "the

allegations of non - compliance with permit conditions should

not be stricken but instead should be considered only as they

might relate to Spanish Oaks' provision of required reasonable

assurances for issuance of a permit." See Order on M otion to

Dismiss or Strike and Request for Stop - Work Order, entered

August 17, 2005.

15/ Pond B is centrally located in the Spanish Oaks’

interior.

COPIES FURNISHED :

David L. Moore, Executive Director

Southwest Florida Water

Management District

23 79 Broad Street

Brooksville, Florida 34604 - 6899

Martha A. Moore, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

Paul Anderson

Lake Region Audubon Society

115 Lameraux Road

Winter Haven, Florida 33884

Martha Harrell Chumbler, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

215 South Monroe Street, Suite 500

Tallahassee, Florida 32302 - 0190

Benjamin W. Hardin, Jr., Esquire

Hardin & Associates, P.A.

Post Office Box 3604

Lakeland, Florida 338 02 - 3604

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 fi nal order in this case.