12-002021 Highway 60 And 301 Center, Inc. vs. Big Bend Center, Llc, Enterprise Holdings, Inc., And Southwest Florida Water Management District Status: Closed Recommended Order on Monday, March 4, 2013.

Summary: It is recommended that the petition be dismissed because Petitioner failed to demonstrate standing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIGHWAY 60 AND 301 CENTER, )

INC. , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2021

)

BIG BEND CENTER, LLC, )

ENTERPRISE HOLDINGS, INC., AND )

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT , )

)

Respondents . )

)

RECOMMENDED ORDER OF DISMISSAL

The final hearing in this case was held on January 24,

2013, by video teleconference at sites in Tallahassee and Tampa,

Florida, before Bram D. E. Canter, Adminis trative Law Judge of

the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Joshua A. Harrow, Esquire

Suite 110

105 US Highway 301 South

Tampa, Florida 33619

For Re spondent Big Bend Center, LLC:

Richard Gonzalez , pro se 1/

Big Bend Center, LLC

1706 South Kingsway Road

Seffner, Florida 33584

For Respondent Enterprise Holdings, Inc.:

Darryl R. Richards, Esquire

Katherine E. Cole, Esquire

Johnson, Pope, Bokor, Ruppel

and Burns, P.A.

403 East Madison Street, Suite 400

Tampa, Florida 33602

For Respondent Southwest Florida Water Management District:

Ronda L. Moore, Esquire

Southwest Florida Water Management

District

7601 U . S . Highway 301 North

Tampa, Florida 33637

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether

Petitioner Highway 60 and 301 Center, Inc., has standing to

challenge the proposed Environmental Resource Permit issued to

Resp ondent Big Bend Center, LLC , by Respondent Southwest Florida

Water Management District ("District"), and, if so, whether Big

Bend Center is entitled to issuance of the proposed permit.

PRELIMINARY STATEMENT

On January 11, 2012, the District issued Environm ental

Resource Permit 44003983.007 to Big Bend Center. Petitioner

filed a petition for hearing to challenge the permit and the

District referred the matter to DOAH to conduct an evidentiary

hearing and issue a recommended order. The District

subsequently approved two modifications to the permit, denoted

by .008 and .009. Petitioner was twice granted leave to amend

its petition and the case proceeded as a challenge to the .009

modification.

Respondent Enterprise Holdings filed a motion to dismiss

the peti tion for hearing on the basis that Petitioner lacked

standing to challenge the permit. The motion was denied, but

the case was bifurcated so that the issue of standing would be

the sole issue to be addressed by the parties on January 24,

2013. Following the hearing on standing, the parties were

provided an opportunity to submit the transcript of the hearing

and proposed recommended orders on the issue of Petitioner's

standing.

At the hearing, Petitioner presented the testimony of

Clifford Laubstein, P.E., who was accepted as an expert in civil

engineering. Petitioner Exhibits 1 and 2 were admitted into

evidence. Enterprise Holdings presented the testimony of

Steven Boggs, P.E., who was accepted as an expert in civil

engineering. Enterprise Exhibits 12 a nd 13 were admitted into

evidence. The District presented the testimony of

Scott Hickerson, P.E., who was accepted as an expert in civil

engineering. District Exhibits 2 - 4 were admitted into evidence.

Big Bend presented no testimony or exhibits.

The one - volume Transcript of the hearing on standing was

filed with DOAH and the parties submitted proposed recommended

orders that were carefully considered in the preparation of this

Recommended Order of Dismissal.

FINDINGS OF FACT

The Parties

1. Petitioner ow ns real property located at 105 U.S.

Highway 301 South, in Tampa, which Petitioner leases to

commercial businesses.

2. Respondent Big Bend Center owns real property located

at 110 U.S. Highway 301 South, which is across Highway 301 from

Petitioner's prope rty. Big Bend Center is named in the

District's agency action and is the permittee.

3. The site affected by the proposed permit modification

is about 2.5 acres in size. It is part of a larger development

owned by Big Bend Center, encompassing about 30 a cres.

4. The 30 - acre site was the subject of a permit issued by

the District in 1988. The 1988 permit approved a master

drainage plan applicable to all 30 acres. The permit

modifications discussed herein are modifications to this initial

permit.

5. Res pondent Enterprise Holdings leases the 2.5 - acre site

at 110 U.S. Highway 301 South, which Enterprise uses for the

operation of a car and truck rental business.

6. When Petitioner filed its petition with the District,

it named Enterprise Holdings, Inc. , as a Respondent, even though

Enterprise Holdings was not named in the permit. Neither

Petitioner nor the District ever questioned the right of

Enterprise Holdings to participate as a party.

7. Respondent Southwest Florida Water Management District

is the a dministrative agency charged with the responsibility to

administer and enforce chapter 373, Florida Statutes, and the

rules promulgated pursuant thereto in Florida Administrative

Code Chapter 40D.

The Permit

8. The petition for hearing challenged the Dist rict's

approval of a proposed permit designated 44003983.007. The

permit authorized the construction of a building over existing

pavement and the addition of a dumpster pad. After the petition

for hearing was filed, Big Bend Center requested and the

Dist rict approved a modification , designated .008, which

included the .007 changes and, in addition, authorized the

construction of a section of sidewalk and landscape islands in

the parking lot. Enterprise then requested and the District

approved another mod ification , .009, which authorized all the

changes addressed in .008 and, in addition, authorized changes

to the paved parking lot.

Standing

9. Petitioner contends that proposed permit, modification

.009 , would injure Petitioner because the authorized chan ges

would result in flooding of Highway 301 that could reach

Petitioner's property or, even if it did not reach that far,

would interfere with traffic on Highway 301 in a manner that

would disrupt Petitioner's business.

10. The sole factual allegation upo n which Petitioner

bases its claim of flooding is that the previously - installed

pipes that convey runoff to a retention pond may be too small;

smaller than was required by Big Bend Center's 1988 permit.

Petitioner's expert, Clifford Laubstein, stated that a boundary

s urvey in the permit file shows two 18 - inch diameter pipes

connected to a 24 - inch diameter pipe. Big Bend Center's 1988

permit required these pipes to be 24 inches and 30 inches,

respectively.

11. Laubstein admitted that the "as built" constr uction

drawings that were submitted to the District by Big Bend Center

after the construction of the master drainage system certifies

that the pipes are the required, larger size.

12. Laubstein did not have firsthand knowledge of the size

of the pipes. H e did not know which document was correct, the

survey or the as built drawings. His position was simply that

if the survey information was correct, Big Bend Center's

stormwater system would fail to function properly and flooding

could occur. Laubstein di d not know whether the system had

failed to function properly in the past or had ever caused

flooding.

13. Laubstein did not determine what storm event or volume

of runoff would result in flooding of Highway 301, or the extent

of flooding that would occur under various storm events.

14. Because as built constructions drawings are prepared

by an engineer and submitted to the District for the very

purpose of certifying that a system has been constructed in

accordance with the requirements of the permit, inf ormation in

the as built drawings about components of the system would

generally be more reliable than such information in a survey

that was prepared for another purpose.

15. Furthermore, Enterprise's expert witness, Steve Boggs,

measured the pipes and de termined they were 24 and 30 inches, as

required by the permit.

16. By refuting Petitioner's claim that the pipes "may" be

undersized, Respondents refuted Petitioner's claim that Highway

301 or Petitioner's property "may" be flooded if the proposed

permit modification is issued by the District.

17. The stormwater system for the proposed project is

properly sized to handle the stormwater runoff.

18. Petitioner failed to meet its burden to prove by a

preponderance of the evidence that it could be injured b y the

proposed permit modification.

CONCLUSIONS OF LAW

19. A person or other entity not named in the agency

action that is challenged cannot be forced to participate simply

by being named in the petition as a respondent. An

a dministrative hearing is not like a civil action where everyone

sued by a plaintiff is thereby made a party - defendant. The

better procedure in this case would have been for Enterprise

Holdings to file a petition to intervene.

20. However, because Petitioner named Enterprise Holdings

as Respondent and acquiesced in Enterprise Holdings'

participation as a full party, any objection available to

Petitioner on this point was waived. The Administrative Law

Judge grants Enterprise Holdings the right to participate as

Respondent.

21. In or der to have standing to initiate a proceeding

under section 120.57, Florida Statutes, P etitioner must show (1)

it Ðwill suffer injury in fact which is of sufficient immediacy

to entitle him to a hearing,Ñ and, (2) that the Ðsubstantial

injury is of a type or nature which the proceeding is designed

to protect.Ñ Agrico Chem. Co. v. DepÓt of Envtl. Reg . , 406 So.

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

22. The injury or threat of injury must be real and

immediate, not conjectural or hypothetical. Village Park Mobile

Homes AssÓn, Inc. v. State, DepÓt of Bus. Reg . , Div. of F la.

Land Sales , 506 So. 2d 426, 433 (Fla. 1st DCA 1987).

23. Petitioner failed to demonstrate its standing because

it failed to show a real and immediate threat of injury from the

proposed permit m odification.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the District dismiss the petition and

issue Environmental Resource Permit 44003983.009.

DONE AND ENTERED this 4th day of March , 2013 , in

Tall ahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of March , 2013 .

ENDNOTE

1/ Did not appear at hearing.

COPIES FURNISHED :

Richard Gonzalez

Big Bend Center, LLC

1706 South Kingsway Road

Seffner, Florida 33584

Joshua A. Harrow, Esquire

Suite 110

105 US Highway 301 South

Tampa, Florida 33619

Darryl R. Richards, Esquire

Johnson, Pope, Bokor

Ruppel and Burns, P.A.

Post Office Box 1100

403 East Madison Street, Suite 400

Tampa, Florida 33602

A drienne Ellen Vining, Esquire

Ronda L. Moore, Esquire

Southwest Florida Water Management

District

7601 US Highway 301 North

Tampa, Florida 33637

Blake C. Guillory, Executive Director

Southwest Florida Water Management

District

2370 Broad Street

Brook sville, Florida 34604

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

wi ll issue the final order in this case.