10-010443 Duke&Apos;S Steakhouse Ft. Myers, Inc. vs. G5 Properties, Llc And South Florida Water Management District Status: Closed Recommended Order on Wednesday, May 25, 2011.

Summary: Project did not meet ERP criteria in BOR on water quality. ERP denied although project better than existing project permitted under old rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUKE'S STEAKHOUSE FT. MYERS, )

INC. , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10443

)

G5 PROPERTIES, LLC , AND SOUTH )

FLORIDA WATER MANAGEMENT )

DISTRICT , )

)

Respondent s . )

)

RECOMMENDED ORDER

On March 16, 2011, a final administrative hearing in this

case was held in Fort Myers , before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitione r: Margaret M. Craig, Esquire

Bricklemyer Smolker & Bolves, P.A.

500 East Kennedy Boulevard, 2nd Floor

Tampa, Florida 33602 - 4936

For Respondent South Florida Water Management Distric t:

Douglas H. MacLaughlin, Sr., Esquire

South Florida Water Management District

3301 Gun Club Road, Mail Stop Code 1410

West Palm Beach, Florida 33406 - 3007

For Respondent G5 Properties, LLC:

Matthew D. Uhle, Esquire

Law Office of Matthew D. Uhle, LLC

1617 Hendry Street, Suite 411

Fort Myers, Florida 33901 - 2926

STA TEMENT OF THE ISSUE

The issue in this case is whether the South Florida Water

Management District (SFWMD) should issue an Environmental

Resource Permit (ERP) for the redevelopment of property owned by

G5 Properties, LLC (G5).

PRELIMINARY STATEMENT

On Ma rch 13, 2009, SFWMD granted G5Ós Application 080822 - 9

and issued ERP 36 - 07074 - P for the redevelopment of G5Ós property

east of U.S. Highway 41 (a/k/a South Cleveland Avenue and South

Tamiami Trail) and south of Sunrise Boulevard in Fort Myers. On

Septembe r 14, 2009, SFWMD granted G5Ós Application 090721 - 8 and

modified the ERP. After construction of the project, DukeÓs

Steakhouse, Inc. (DukeÓs), which owns property south of G5Ós

property , requested an administrative hearing, and SFWMD

referred the request to DOAH under chapter 120, Florida

Statutes.

At the final hearing, G5 called its stormwater engineer,

Steven Darby, P.E., as an expert witness and had its Exhibits A1

through A7 admitted in evidence. SFWMD called Kenneth Kellum,

P.E., an Engineer Superv isor, as an expert witness and had its

Exhibits D1, D2, D4, and D6 admitted in evidence. Petitioner

called Andrew Harrow, its principal owner and chief executive

officer, as a fact witness and Johnny Fletcher, a professional

land surveyor, as an expert wi tness. Petitioner also had its

Exhibits P1 through P4 admitted in evidence.

After presentation of evidence, G5 requested a transcript

of the final hearing, and the parties file d pr oposed recommended

orders, which have been considered .

FINDINGS OF FACT

1. The property owned by G5 east of U.S. 41 and south of

Sunrise Boulevard in Fort Myers was developed as separate

parcels by different owners in the 1970Ós and 1980Ós under the

stormwater management regulations in effect at that time.

Similarly, the DukeÓs property to the south was developed in

that era under the same stormwater management regulations. The

properties do not meet current ERP regulations.

2. G5 acquired the two parcels comprising its property

with the intention of redeveloping it, primarily by constructing

a two - story medical office building on what was the southern

parcel. G5 applied to upgrade the surface water management

system on the property, primarily by installing a detention pond

on the southern parcel and directing surface water flow from a

designated sub - basin on the southern parcel into the detention

pond. The detention pond was to serve the dual purposes of

storage and water quality treatment. It was properly sized to

store and treat the runoff from the sub - basin in a 25 - year/3 - da y

(the proper design) storm. Discharge from the detention pond

was to be into the existing stormwater conveyance (an

underground pipe) in the road right - of - way along the eastern

property line (west of Austin Street). From there, water flows

south into a drainage ditch to the south of the DukeÓs property.

From there, water flows west to Whiskey Creek and eventually

into the Caloosahatchee River. (The River is impaired; neither

the Creek nor the River are designated as Outstanding Florida

Water) .

3. Althou gh most of the redevelopment of G5Ós medical

office building is on what was the southern parcel, and most of

the stormwater falling on the southern parcel is directed into

the detention pond, there is a covered portico entrance on the

north side of the med ical office building with a driveway that

ramps up to the entrance from the west and ramps down away from

the entrance to the east. The covered portico and ramped

driveway extend onto what was the northern parcel. Some of the

surface water runoff from th e driveway flows to the west into

the Florida Department of Transportation (DOT) swale in the U.S.

41 right - of - way, as it did before redevelopment; some of the

surface water runoff from the driveway flows to the east and

north, onto what was the northern p arcel of G5Ós property.

Except for this runoff flow from the driveway, the drainage

patterns on the northern parcel remain practically the same, the

only differences being the replacement of a small amount of

impervious surface with new impervious surface (pavement) and a

small amount of impervious surface with pervious surface.

4. G5Ós redevelopment of its medical office building

includes a driveway along the south side of the building, just

north of the DukeÓs property, leading to parking on the south

and east side of the building. Some of the surface water runoff

from the entrance to the driveway flows to the west into the DOT

swale in the U.S. 41 right - of - way, as it did before

redevelopment.

5. G5Ós ERP does not provide for any storage or water

quality t reatment for runoff from the northern parcel, except

for the addition of removable (for cleaning) filter inserts for

the storm drains in that part of the property.

6. During the application process, G5 modified its

proposal to deepen the detention pond. Th is was done to allow

the redeveloper of the Taco Bell half a mile to the south of the

DukeÓs property to take credit for additional storage and water

quality treatment in order to get a Lee County permit for its

project.

7. The Taco Bell also was developed under the old

stormwater management regulations, but its redevelopment was

able to use a SFWMD ÐNo Notice General PermitÑ because it

impacted no wetlands, was less than ten acres, and had less than

two acres of impervious surface. However, it needed a Lee

County stormwater permit, which it could not get without

additional water quality storage and treatment. Lee County

allowed the Taco Bell redevelopment project to take credit for

a n increase in the depth of the detention pond at the G5 site

and issued it s permit.

8. Although Taco Bell got credit for water quality storage

and treatment at the G5 property, no surface water runoff from

the Taco Bell site actually reaches G5Ós detention pond, or even

the DukeÓs property. It flows north through the pipe along

Austin Street to the drainage ditch to the south of the DukeÓs

property, and from there to Whiskey Creek and the Caloosahatchee

River. However, the deeper detention pond would provide

additional storage and water quality treatment for the G5 site

for stor ms bigger than the design storm.

9. PetitionerÓs surveyor testified that there are up to

four places along the property line between the G5 property and

the DukeÓs property where topography indicates that some surface

water runoff can flow from the G5 prope rty across the property

line to the DukeÓs property, post - redevelopment. His testimony

was based on a comparison of spot elevations he took in the

vicinity of the property line with elevations taken by other

surveyors. In addition, the surveyor could not say how much

flow would occur in a 25 - year, 3 - day storm.

10. There was persuasive testimony from G5Ós engineer that

the flow from one of the four locations identified by

PetitionerÓs surveyor (in the southeast corner of the southern

parcel of G5Ós property ) existed pre - redevelopment. Contrary to

PetitionerÓs argument, this testimony actually did not

contradict other testimony of the engineer that all runoff from

the new pavement on the southern parcel of the G5 property was

intended to flow into the new de tention pond. In that location

in the southeast corner, G5Ós redevelopment project removed

pavement, added 4 - inch high curbing along the edge of the new

pavement, and added grass between the curb and the property line

(which would tend to reduce runoff on to the DukeÓs property) .

11. Another location identified by PetitionerÓs surveyor

was between the new office building and the property line. The

surveyor related a water stain on the pavement and an exposed

tree root ball to significant standing water and hi gh flow

conditions. Petitioner contends that this occurs because an

asphalt overlay, four - tenths of a foot thick, was placed on top

of the existing pavement in that area. To the contrary, G5Ós

engineer testified that the surface water management system

f unctions as it should and that the overlay did not change the

grade but was Ðjust to benefit the existing asphalt from

deteriorating any more.Ñ The water stain could be attributable

at least in part to landscape irrigation, and the tree root may

have been exposed mechanically. Even if the surveyorÓs

testimony proved that there is some water flow in that area, he

could not testify as to the quantity of flow.

12. Based on a preponderance of the evidence, G5 provided

reasonable assurances that its surface w ater management system

functions properly and that post - redevelopment runoff from the

G5 property onto the DukeÓs property does not exceed pre -

redevelopment conditions.

13. Petitioner cites significant standing water on the

DukeÓs property after a heavy rai n on January 26, 2011, as proof

that the G5 redevelopment has caused flooding of the DukeÓs

property. However, there was no standing water on the G5

property, and hardly any water in the detention pond. The

standing water on PetitionerÓs property was abo ve two storm

drains on the western part of the DukeÓs property, which drain

into the same pipe as the storm drains on the western side of

the G5 property and the outfall structure discharging from the

detention pond on the G5 property. The standing water on the

DukeÓs property probably was caused by clogs in the drains in

the DukeÓs stormwater management system, not by G5Ós

redevelopment.

14. Mr. Harrow claimed that the DukeÓs property was

inspected when purchased, its stormwater management system was

fun ctioning properly, and it was properly maintained. But he

also testified that maintenance ceased at some point and that it

would require an engineer to correct what is wrong with it now,

which Mr. Harrow believed to be cost - prohibitive and the

responsibil ity of G5, not Petitioner.

15. Petitioner contends that no ERP should issue for G5Ós

redevelopment project without the participation of Taco Bell in

the operation and maintenance of the G5 detention pond. To the

contrary, the Taco Bell permit might be defi cient if Taco Bell

has no control over the operation and maintenance of G5Ós

detention pond, but there is no reason why Taco Bell has to

participate in the operation and maintenance of G5Ós detention

pond. By a preponderance of the evidence, G5 provided

r easonable assurances that it has the legal and financial

ability to operate and maintain its system, including the

detention pond.

16. If a new development, G5Ós redevelopment project

(which includes all 3.41 acres in the northern and southern

parcels of th e G5 property) would not meet the criteria for

issuance of an ERP because there was no demonstration that there

is enough water quality storage and treatment. However, because

of the addition of water quality storage and treatment for the

southern parcel and the addition of filters for the drains on

the property, the redevelopment of the site resulted in a net

improvement in water quality storage and treatment.

CONCLUSIONS OF LAW

17. As the applicant, G5 has the burden to prove its

entitlement to an ERP. S ee Fla. DepÓt of Transp. v. J. W. C.

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

proof required to prove entitlement is a preponderance of the

evidence. Id.

18. To obtain an ERP, G5 must provide reasonable

assurances: that its redevelo pment project will not cause

adverse water quantity impacts to receiving waters and adjacent

lands, adverse flooding to on - site or off - site property, adverse

impacts to existing surface water storage and conveyance

capabilities, adverse effects on the qual ity of receiving waters

such that the water quality standards are violated, or adverse

secondary impacts to the water resources; that the project will

be capable, based on generally accepted engineering and

scientific principles, of being performed and of functioning as

proposed; and that it will be conducted by an entity with the

sufficient financial, legal , and administrative capability to

ensure that the activity will be undertaken in accordance with

the terms and conditions of the permit, if issued. Se e Fla.

Admin. Code R. 40E - 4.301(1)(a), (b), (c), (e), (f), (i), and

(j). No other criteria for issuance under r ule 40E - 4.301 are

applicable, and r ule 40E - 4.302 is not applicable.

19. The standards and criteria contained in the "Basis of

Review for Environm ental Resource Permit Applications Within the

South Florida Water Management District" (BOR), incorporated by

reference in r ule 40E - 4.091, determine whether the reasonable

assurances required by subsection 40E - 4.301(1) have been

provided. See Fla. Admin. Code R. 40E - 4.301(3).

20. BOR section 5.2.1(a) sets out the requirements for

volumetric detention onsite for water quality purposes.

21. BOR section 6.2 limits the offsite runoff discharge

rate during the design storm so as not to exceed historic rates.

BOR section 6.3 defines the design storm as the 25 - year, 3 - day

storm event.

22. BOR section 7.4 sets out the dimensional criteria for

stormwater management system wet and dry detention areas.

23. BOR section 8.0 sets out design information and

assumptions for v arious required calculations.

24. BOR section 9.0 sets out operating entity

requirements.

25. G5 met all of the requirements of the BOR except for

sections 5.2.1(a) and 7.4, which relate to water quality storage

and treatment.

26. G5 and SFWMD contend that the ERP should issue,

notwithstanding G5Ós failure to meet the BOR requirements for

water quality storage and treatment, because G5Ós redevelopment

results in a net improvement in water quality and, under r ule

40E - 4.301(1)(e), does not cause adverse effect s on the quality

of receiving waters such that the water quality standards are

violated. However, neither G5 nor SFWMD cite s any other

authority for a so - called Ðnet improvementÑ standard or

exception from the requirements of the BOR that would apply in

t his case.

27. SFWMD contends that Petitioner has no standing to

raise water quality issues. No question was raised as to

PetitionerÓs standing to be a party to this case as a result of

its flooding concerns.

28. In addition to administrative agencies (in th is case,

SFWMD) and "specifically named" persons whose substantial

interests are determined in a proceeding (in this case, G5),

section 120.52(13)(b), Florida Statutes, provides that the term

"party" includes "[a]ny other person . . . whose substantial

int erests will be affected by proposed agency action . . . ."

29. For years, standing to be a party in a proceeding

under section 120.57 was determined under the standard set out

in Agrico Chem . Co. v. Dep 't of Env tl. Regulation , 406 So. 2d

478, 482 (Fla. 2d DCA 1981):

[B]efore one can be considered to have a

substantial interest in the outcome of the

proceeding he must show 1) that he will

suffer injury in fact which is of sufficient

immediacy to entitle him to a section 120.57

hearing, and 2) that his subst antial injury

is of a type or nature which the proceeding

is designed to protect. The first aspect of

the test deals with the degree of injury.

The second deals with the nature of the

injury.

Although Agrico was decided on the second prong of the test, its

first prong also has been applied to make standing

determinations.

30. More recent appellate decisions have clarified the

first prong of the Agrico test. In order for a third party to

have standing as a petitioner to challenge agency action in an

admini strative proceeding, the evidence must prove that the

petitioner has substantial rights or interests that reasonably

could be affected by the agency's action. See St. Johns

Riverkeeper, Inc., et al. v. St. Johns River Water Mgmt. Dist.,

et al. , 54 So. 3d 1051 , 1054 (Fla. 5th DCA 2011); Palm Beach

Cnty. Envtl. Coal. v. Fla. Dep't of Envtl. Prot. , 14 So. 3d

1076, 1078 (Fla. 4th DCA 2009); Peace River/Manasota Reg'l Water

Supply Auth. v. IMC Phosphates Co. , 18 So. 3d 1079, 1082 (Fla.

2d DCA 2009); Reily Enter s., LLC v. Fla. Dep't of Envtl. Prot. ,

990 So. 2d 1248, 1251 (Fla. 4th DCA 2008). See also

§ 403.412(5), Fla. Stat. (ÐA citizen's substantial interests

will be considered to be determined or affected if the party

demonstrates it may suffer an injury in fa ct which is of

sufficient immediacy and is of the type and nature intended to

be protected by this chapter.Ñ) .

31. As the owner of property adjacent to G5Ós

redevelopment project, Petitioner has substantial interests that

could be affected by G5Ós ERP so as to enable Petitioner to

contest G5Ós application and raise its issues regarding

flooding.

32. The concept of "standing" relates to party status; it

generally is not applied to limit the individual issues that can

be raised by a party. SFWMD cites no author ity for limiting the

issues a party can raise in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that SFWMD deny G5 an ERP for its redevelopment

for failure to meet BOR requirements as to w ater quality storage

and treatment.

DONE AND ENTERED this 25th day of May , 2011 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of May , 2011 .

COPIES FURNISHED :

Margaret M. Craig, Esquire

Bricklemyer Smolker & Bolves, P.A.

500 East Kennedy Boulevard, 2nd Floor

Tampa, Florida 33602 - 4936

Matthew D. Uhle, Esquire

Law Office of Matthew D. Uhle, LLC

1617 Hendry Street, Suite 411

Fort Myers, Florida 33901 - 2926

Douglas H. MacLaughlin, Sr., Esquire

South Florida Water Management District

3301 Gun Club Road, Mail Stop Code 1410

West Palm Beach, Florida 33406 - 3007

Tommy B. Strowd, Interim Executive Director

South Florida Water Management District

3301 Gun Club Road, Mail Stop Code 1410

West Palm Beach, Florida 33406 - 3007

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 w ith the agency that will

issue the final order in this case.