12-003280 Helen J. Crenshaw vs. Vista Of Fort Walton Beach, Llc, And Northwest Florida Water Management District Status: Closed Recommended Order on Monday, March 11, 2013.

Summary: Applicant provided reasonable assurance that the construction of a storm water retention basin would not cause flooding on adjacent property.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELEN J. CRENSHAW, )

)

Petitioner , )

)

vs. ) Case No. 1 2 - 3280

)

VISTA OF FORT WALTON BEACH, )

LLC, AND NORTHWEST FLORIDA )

WATER MANAGEMENT DISTRICT, )

)

Respondent s. )

______________________________ _ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, D . R. Alexander, on January 22, 201 3 ,

in DeFuniak Springs, Florida .

APPEARANCES

For Petitioner : Tim othy Crenshaw, Q ualified R epre sentative

61 North 18 th Street

DeFuniak Springs, Florida 32433 - 9547

For Respondent : Kevin X. Crowley, Esquire

(D istrict) Pennington, Moore, Wilkinson,

Bell & Dunlop, P.A.

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

For Respondent : Jim Busby, Managing Member

( Vista) Vista of Fort Walton Beach, LLC

Post Office Box 760

Fort Walton Beach, Florida 32549 - 0760

STATEMENT OF THE ISSUE

The issue is whether Vista of Fort Walton Beach, LLC

(Vista), should be issued Surface Water Management Permit No.

04 - 2012 - 0013G authorizing the construction of a n earthen

embankment dam and impoundment to impound stormwater runoff from

a proposed commercial development in the City of DeFuniak

Springs (City) , Walton County, Florida.

PRELIMINARY STATEMENT

On August 8, 2012, the Northwest Florida Water Managemen t

District (District) gave notice of its intent to issue a surface

water management permit to Vista. After her first request for a

hearing was dismissed, without prejudice, Petitioner, Helen J.

Crenshaw, who resides and owns property adjacent to the propo sed

project, filed her Amended Petition. The matter was then

referred by the District to DOAH. On the undersigned's own

motion, the Amended Petition was dismissed, without prejudice,

and Petitioner filed a [S econd ] Amended Petition . The

District's Motio n to Dismiss that pleading was denied.

A t the final hearing , Petitioner , who was represented by

her son, T im othy Crenshaw, testified on her own behalf and

presented the testimony of Kermit H. George . Also, Petitioner's

late - filed Exhibit 1 w as received in evidence. The District and

Vista jointly presented the testimony of Kermit H. George, a

professional engineer and land surveyor with Southern

Engineering Group, LLC, and accepted as an expert ; and Lance

Laird, a professional engineer and Chief of the D istrict's

Bureau of Surface Water Regulation and accepted as an expert.

Also, Joint Exhibits 1 - 10 were received in evidence. Finally,

the undersigned granted the District's request to take official

recognition of section 373.429, Florida Statutes, Florid a

Administrative Code Chapter 40A - 4, and rule 40A - 1.205.

The T ranscript of the hearing was filed on February 4 ,

2013 . Proposed Findings of Fact and Conclusions of Law were

timely filed by Petitioner and jointly by the District and

Vista , and they have bee n considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. The District has regulatory jurisdiction over the

construction of certain types of impoundments within its

boundaries. If an impoundment is at least ten feet high but

less t han 25 feet in height and has an impounding capacity of at

least 50 acre - feet , a general permit is required . See Fla.

Admin. Code R. 40A - 4.041(1) .

2. Vista, a limited liability corporation , owns an odd -

shaped parcel i n the City on which it intends to b uild a small

commercial development consisting of a 17,000 - square foot

b uilding, a parking lot, and related amenities . The vacant

parcel abuts the north side of U.S. Highway 90 just east of

18th Street and is approximately 1.66 acres in size. The

proper ty is partially wooded and has a small wetland area on its

northeastern corner.

3. In conjunction with th e proposed commercial

development, Vista intends to construct an impoundment to

control stormwater runoff from the project. Because the

impoundment w ill be ten feet high and have an impounding

capacity of at least 50 acre - feet , Vista is required to obtain a

general permit. See Fla. Admin. Code R. 40A - 4.041(1). Vista

filed a permit application with the District on June 8, 2012.

4. On August 8, 2012, the District gave notice that it

intended to issue a surface water management permit to Vista .

The permit allows the construction of a stormwater retention

basin. A mitigation plan for impacts to 0.23 acres of wetlands

was also approved but is not at iss ue in this proceeding .

5 . As described in the District staff report, t he project

will encompass one earthen embankment dam and impoundment to

impound the storm runoff. It will operate as a dry stormwater

retention basin designed to impound water only dur ing rainfall

events. The facility will utilize a pipe and riser spillway

system, and the basin outfall will be protected by a rip - rap

lined plunge pool. Due to space restrictions, an engineered

retaining wall will be incorporated into the embankment's no rth

side slope. The stormwater will discharge through controlled

overflow structures into a nearby wetland area that lies

northeast of Vista's property and will then be integrated into

an existing channel that eventually forms the headwaters of

Sandy Cree k to the north .

6 . Petitioner has resided on her property since around

1932. Her odd - shaped parcel , described as being between five

and seven acres in size, lies immediately to the north of

Vista's property . A small wetland is located on the

southeaster n corner of her property. The two parcels share a

common boundary line , appearing to be no more than a hundred

feet or so . Because the boundary line is lower than the highest

part of each owner's property , a "trench" has form ed along the

line . Wabash Av enue , a platted but un - built ro adway that begins

on U.S. Highway 90 , runs to the northwest through the wetland

area and along the eastern boundaries of both properties. As

alleged in the Second Amended Petition, Petitioner is concerned

that the project wi ll cause flooding on her property. In a

broader sense, she appears to be opposed to any commercial

development on Vista's property.

7. The back side of the Vista parcel slopes down hill to a

recessed area that is adjacent to both properties . Although

s ome fill has already been placed on the property in preparation

for the development , t he applicant intends to add "a lot" more

fill to the entire parcel to create a gradual slop e down to the

edge of Wabash Avenue. A basin or pond around 0 .20 acres in

size will be formed within the fill area and a retaining wall

consisting of multiple segments will be constructed around the

basin. The wall will be separated from Petitioner's property by

a 20 - foot buffer , while at its closest point the basin will be

"35 fee t or so" from her property line. The plans submitted by

the applicant demonstrate that the system will be built in

accordance with all District standards and should operate in a

safe manner . B efore construction can begin, the District must

approve the re taining wall design specifications.

8 . During rain events, the first inch of water will be

retained on site for treatment . A dditional water will be stored

in the basin and then slowly allowed to discharge from the basin

into the wetlands. The point of d ischarge from the basin is at

a location a minimum of 20 feet south and east of Petitioner's

property line.

9 . To ensure that the retention system will not discharge

runoff at a higher rate than was discharged before development,

Vista performed hydrologi c calculations demonstrating pre - and

post - development runoff. According to accepted models developed

by t he United States Department of Agriculture and its

predecessor, the Soil Conservation Service, the current peak

runoff from the Vista property is 2.4 6 cubic feet per second

(CFS) during a two - year, 24 - hour storm event. After

development, th e volume of water will be reduced to 0.74 CFS.

D uring a 25 - year, 24 - hour storm event, the volume of runoff

post - development is anticipated to drop from 12.59 CFS t o 6.51

CFS. Finally, during a 100 - year, 24 - hour storm event, post -

development runoff will be slightly reduced from 19.64 CFS to

18.99 CFS. Therefore, as sited, sized, and designed, the

project will reduce runoff during all anticipated storm events.

10. The foregoing calculations were not credibly

contradicted and satisfy the requirement that an applicant give

reasonable assurance that the project will not cause an

increased flow such that it will endanger downstream property in

times of flood with resp ect to state or frequency. See Fla.

Admin. Code R. 40A - 4.301(2)(f). They also confirm that water in

the impoundment will not be raised to a level that could be

harmful to the property of others. See Fla. Admin. Code R. 40A -

4.301(2)(c). Thus, the potent ial for flooding on Petitioner's

property will be reduced if the project is constructed as

permitted.

11 . The Department of Transportation (DOT) is currently

repairing the drainage system on U.S. Highway 90 in front of the

Vista property . S tormwater from that project drains into the

wetlands through a n easement deeded to the City at the rear of

the Vista property. Petitioner pointed out that after the DOT

project began, and fill was added to the Vista property, she has

experienced an increase in water on her property. Whether th e

DOT project is responsible in any way for this hydrologic change

is not known. However, accepted testimony by two professional

engineers supports a finding that Vista is not responsible for

any hydrologic changes on Petitioner' s property. Vista was not

required to take into account any runoff from th e DOT project in

making its hydrologic calculations because the amount of runoff

from its own property will actually be reduced by the retention

system.

12 . At hearing, Petitione r contend ed that a fence she

built on the common boundary line with Vista some time after 1990

was illegally removed by Vista in order to construct the basin.

According to Mr. George, who first surveyed the property line in

1990 and then surveyed it a seco nd time a few years ago, the

fence was built a few feet beyond Petitioner's property line and

lies within the buffer zone between the basin and her property.

Petitioner argues that even if this is true, the doctrine of

adverse possession applies and she i s now the owner of the

property on which the fence was built . This type of dispute ,

however, can only be resolved in circuit court , and not in an

administrative forum. See § 26.012(2)(g), Fla. Stat. The

District has examined the property records and is satisfied that

Vista has ownership of the property on which the impoundment

will be built. Notably, the basin will not be located within

the 20 - foot buffer where the fence once stood and which is

dedicated to the City as an easement.

13. Finally, through cross - examination at hearing,

Petitioner suggested that any project designed by humans carries

with it the remote possibility that it will fail and create a

catastrophic situation on her property . I n the unlikely event

that the design and operation of th e retention basin threaten

the safety of adjoining property owners, section 373.429 and

rule 40A - 1.205 enable the District to revoke, suspend, or modify

a permit to protect the safety of others.

CONCLUSIONS OF LAW

1 4 . Section 120.569(2)( p ) places the ulti mate burden of

persuasion on the challenger in cases where the agency intends

to issue a permit. Therefore, once the prima facie case of the

applicant and the District's evidence are presented, Petitioner

has the ultimate burden of persuasion to prove tha t the

applicant is not entitled to a permit.

1 5 . In order for a permit to issue, an applicant must give

reasonable assurance s that the proposed activity will satisfy

all relevant statutory and rule criteria. Although it lacks

clarity, the Second Amended Petition implicates only two

criteria in rule 40A - 4.301(2) . All other rule and statutory

requirements have been satisfied. The criteria in dispute

provide in relevant part that the issuance of a permit for an

impoundment will be denied if the proposed a ctivity:

(c) Will cause the level of the surface

water in any . . . impoundment to be . . .

raised to a level that will be harmful to

the people, property, or water resources of

this area;

(f) Will cause an increased flow such that

it will endanger down stream property in

times of flood with respect to state or

frequency;

1 6 . As to these disputed criteria, Vista has established

b y a preponderance of the evidence that the proposed impoundment

will not cause an increased flow that will endanger downstream

property or raise the water to a level that will be harmful to

the property of others . Because all other statutory and rule

requirements have also been satisfied, the permit should be

issued.

RECOMMENDATION

Based on the foregoing Findings of Fact and Con clusions of

Law, it is

RECOMMENDED that the Northwest Florida Water Management

District enter a final order approving the issuance of Surface

Water Management System Permit No. 04 - 2012 - 0013G to Vista.

DONE AND ENTERED this 11th day of March , 20 1 3 , in

Ta lla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

File d with the Clerk of the

Division of Administrative Hearings

this 11th day of March , 201 3 .

COPIES FURNISHED:

Jon athon Steverson, Executive Director

Nor thwest Florida Water Management District

152 Water Management Drive

Havana , Florida 32333 - 4712

Helen J. Crenshaw

61 North 18th Street

DeFuniak Springs, Florida 32433 - 9547

Kevin X. Crowley , Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

James Busby

Vista of Fort Walton Beach, LLC

Post Office Box 760

Fort Walton Beach, Florida 32549 - 0760

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should b e filed with the agency that will

render a final order in this matter.