82-001937 Caloosa Property Owners Association, Inc. vs. Caleffe Investment, Ltd.; Worthington Enterprises; Et Al. Status: Closed Recommended Order on Wednesday, February 23, 1983.

Summary: Grant conditional approval for Palm Beach Park of Commerce (PBPC) imposing twelve separate conditions on the construction/maintenance to Ensure safe drinking water.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CALOOSA PROPERTY OWNERS )

ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 82-1937

)

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT; CALEFFE INVESTMENT, )

LTD.; and WORTHINGTON )

ENTERPRISES, INC., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in the

above matter on December 14, 15 and 16, 1982, in West Palm Beach, Florida. The

following appearances were entered: Tracy C. Sharpe, West Palm Beach, Florida,

appeared on behalf of the Petitioner, Caloosa Property Owners Association, Inc.;

Terry E. Lewis, Tallahassee, Florida, appeared on behalf of the Respondents,

Caleffe investment, Ltd., and Worthington Enterprises, Inc.; and Irene Kennedy

Quincey, West Palm Beach, Florida, appeared on behalf of the Respondent, South

Florida Water Management District.

Caleffe Investment, Ltd., and Worthington Enterprises, Inc., have filed an

application with the South Florida Water Management District ( SFWMD) for

conceptual approval of a surface water management system for a proposed

industrial park known as Palm Beach Park of Commerce. SFWMD issued notice of

its intent to grant conceptual approval. The Petitioner, Caloosa Property

Owners Association, Inc., filed a Petition for Formal Administrative Hearing.

The Petition was forwarded to the Division of Administrative Hearings by SFWMD

on July 15, 1982. The final hearing was originally scheduled to be conducted

commencing on January 18, 1983. Upon request of the applicants, the hearing was

rescheduled to be conducted as set out above on an expedited basis.

At the hearing the applicants called the following witnesses: Howard L.

Searcy, a consulting engineer in private practice and an investor in the

proposed industrial park; Robert D. Blackburn, a consulting biologist; Robert

Goodrick, a research biologist employed with SFWMD; Charles Allen Hall, an

engineer employed with SFWMD; and Richard Rogers, a registered civil engineer

employed with SFWMD. The Petitioner called the following witnesses: Arthur R.

Marshall, a consultant in environmental matters in private practice; James H.

Hartwell, a consulting hydrologist in private practice; and Paul Parks, a

chemist in private practice. SFWMD presented evidence through the testimony of

witnesses called by the other parties.

A portion of the hearing was dedicated to testimony from members of the

public at large. Robert E. Leis, the President of Wind in the Pines Homeowners

Association; and John C. Jones, the Executive Director of the Florida Wildlife

Federation, testified as members of the public at large.

The following exhibits were received into evidence: Exhibits 1 through 11

offered jointly by the applicants and SFWMD, Petitioner's Exhibit 1, Hearing

Officer's Exhibits 1 through 5, and Public Exhibits 1 and 2.

A briefing schedule was established which ran from the date of the filing

of the transcript of the hearing. The parties have submitted post-hearing legal

memoranda which include proposed findings of fact and conclusions of law. The

proposed findings and conclusions have been adopted only to the extent that they

are expressly set out in the Findings of Fact and Conclusions of Law which

follow. They have been otherwise rejected as not supported by the evidence,

contrary to the better weight of the evidence, irrelevant to the issues, or

legally erroneous.

ISSUES

The ultimate issue to be resolved in this proceeding is whether the

applicants have offered reasonable assurance that their proposed surface water

management system for the Palm Beach Park of Commerce would operate within the

rules of SFWMD set out at Section 40E-4.301, Florida Administrative Code. The

Petitioners specifically contend that the project as proposed would cause

flooding on lands adjacent to the project, would have adverse impacts on surface

and ground waters, and otherwise is inconsistent with SFWMD criteria.

Applicants and SFWMD contend that the project meets applicable standards.

FINDINGS OF FACT

1. The applicants propose to develop an industrial park to be known as the

Palm Beach Park of Commerce ( PBPC) in western Palm Beach County, Florida. The

proposed site is located on State Road 710 and State Road 711. The site is

approximately 1,248 acres in size. PBPC proposes to accommodate a variety of

commercial and industrial uses. Applicants are seeking conceptual approval of a

proposed surface water management system. They are not at this time seeking

permits from SFWMD which would allow construction of the overall system. The

proposed system does not include plans for surface water management on sites

within PBPC, but rather relates solely to an overall system.

2. Petitioner is an association of homeowners within a single family

residential development known as Caloosa. The development is approximately

1,400 acres in size and consists of single family residences on approximately

five-acre lots. The Caloosa development is located to the southeast of the

proposed PBPC. Surface and ground water flows from the PBPC site toward the

Caloosa development. Residents of Caloosa depend on individual wells for their

drinking water.

3. The site of the proposed PBPC is primarily a flat, broad plain with

wetland pockets and pine-palmetto flatwoods. Approximately 720 acres of the

site is dominated by pine flatwoods. A bit more than 300 acres of the site is

in agricultural land, either presently or recently under cultivation. Between

160 and 170 acres of the site are viable, productive wetlands. The wetland

areas are inundated with water during a sufficient portion of the year to

support predominantly wetland vegetation. The land slopes generally from the

northwest to the southeast.

4. The proposed PBPC site is located within the Loxahatchee basin.

Surface water from the site presently drains toward the southeast into the

Caloosa canal. The Caloosa canal flows through the Caloosa development and

ultimately discharges into the C-18 canal. The C-18 canal drains into the

Loxahatchee River. Water from areas to the north and west of the proposed site

presently drains onto the site and into the Caloosa canal. The proposed

drainage system would carry water to the discharge point at the southeast corner

of the site through a perimeter canal system. Water from the off-site locations

would drain into the perimeter canal to the discharge point. On-site surface

water would drain toward wetland pockets into the perimeter canal system or

directly into the canal system. The proposed drainage system would preserve 135

acres of the wetlands presently located on the project site. These wetland

areas have been incorporated into the surface water management system.

Approximately 33 acres of wetlands would be filled. The wetland areas serve a

significant function to preserve water quality, and to mitigate the loss of

these wetlands, applicants propose to create a wetland area along the northern

portion of the perimeter canal. This constructed wetland area would serve

approximately the same water quality function as the wetland area that would be

filled.

5. The proposed surface water drainage system is designed so as to retain

the first one inch of runoff from any storm event through a system of swales.

Thus, surface water runoff would cross grassy areas and percolate through the

swale systems before entering the perimeter canal system. Such a system serves

to filter most of the pollutants that would be carried into the surface water

system as the result of a storm event.

6. The Caloosa canal is presently not able to accommodate flows that would

result from the proposed PBPC surface water management system without flooding

up to a storm event of three-day duration and 25-year return frequency. This

would be a storm of such magnitude that it is likely to occur only once each 25

years over a three-day period. There are two existing bridges over the Caloosa

canal which narrow the canal to only 16 feet in width. The narrow openings

under the bridges presently cause flooding and erosion in the canal, which is

generally 65 feet in width. At the discharge point of the Caloosa canal into

the C-18 canal, there is a 65-foot wide steel sheet pile weir, downstream of the

weir there are three 72-inch diameter pipes which discharge directly into the C-

18 canal. These pipes are not adequate to accommodate flows that would be

anticipated from the proposed PBPC as a result of a storm event of three-day

duration and 25-year return frequency. There has been erosion in the Caloosa

canal partially as a result of its sandy banks and partially because of the

constrictions resulting from the narrow bridges. In order to assure that the

Caloosa canal could accept discharges anticipated from the PBPC surface water

management system, the bridges would need to be expanded to 60 feet in width, an

additional 72-inch diameter pipe would need to be installed at the discharge

point into the C-18 canal, and maintenance work would need to be performed on

the Caloosa canal so that it could be restored to its uneroded condition. If

these improvements are made in the Caloosa canal system, then the proposed

surface water management system for PBPC is not likely to result in any

downstream flooding except in the event of a storm event in excess of three-day

duration and 25-year return frequency.

7. Design features of the proposed drainage system including preservation

of wetland areas, creation of new wetland areas, and retention of the first one

inch of storm water runoff prior to discharge into surface waters are known as

"best management practices." SFWMD has a policy of accepting the implementation

of best management practices as providing reasonable assurance that a surface

water system will not result in adverse water quality impacts. It does not

appear that construction of the proposed surface water management system would

of itself have any negative impact upon the quality of surface or ground waters.

8. There is potential for negative water quality impacts that would result

from activities of individual, commercial or industrial tenants of PBPC. The

applicants have agreed to prohibit certain uses within the proposed industrial

park as a condition for receiving conceptual approval and to impose deed

restrictions or restrictive covenants prohibiting specific uses on all property

within PBPC. Uses which applicants have agreed to exclude are: breweries,

fertilizer manufacturers, coal and petroleum derivation manufacturers,

exterminator manufacturing and warehousing, and all chemical manufacturing

including insecticides, herbicides and pesticides. Despite these restrictions,

there are many potential commercial and industrial activities that could occur

within PBPC that would involve the use of toxic substances which could have

potentially devastating water quality impacts. The application for conceptual

approval contemplates that each individual tenant within PBPC will need to

obtain a permit from SFWMD for a surface water management system for their

individual portion of PBPC. Each tenant would be required to establish a system

which itself would retain the first one inch of runoff from any storm event. It

is essential that individual tenants whose activities include the use of toxic

substances be required to implement systems to assure that toxic wastes are

adequately treated and disposed of properly and that systems are established to

prevent accidents, and in the event of accidents, to deal with them on an

emergency basis. The most potentially dangerous impact in water quality terms

that might result from industrial uses is where toxic substances that are water

soluble are used on the site. Such substances would not be filtered through

percolation and could enter surface and ground waters. As a condition of

approval, it is appropriate that all construction or operating permits be

conditioned upon the implementation of control systems and emergency systems

that reasonably assure that no individual user within PBPC would engage in

activities that would be likely to result in violations of water quality

standards.

9. It does not appear that the proposed surface water management system

for PBPC would cause adverse environmental impacts. Most of the on-site

wetlands will be retained, and those that will be filled are lower quality

wetlands that will be replaced by the creation of wetlands along the perimeter

canal system. Construction activities and activities on site after development

will undoubtedly change wildlife habitat. The area of the proposed site is not,

however, a unique wildlife habitat; and it does not appear that any species

would be threatened with significant habitat reduction.

10. The proposed water management has been designed so that it can be

effectively operated and maintained. The Northern Palm Beach County Water

Control District has agreed to maintain the surface water management system.

The district is a public entity that has personnel and expertise available to

operate the system.

11. It does not appear that the proposed surface water management system

would have any adverse impact upon public health or safety. It is possible that

individual tenants depending upon the nature of their activities, could offer

potential health and safety hazards. It is appropriate that such hazards be

taken into account in the approval of surface water management systems for

individual sites within the proposed park.

12. It appears that the proposed surface water management system is

virtually as good a system as could be designed to accommodate an industrial

park. The proposed use of the land as an industrial park is compatible with

comprehensive plans and zoning regulations of Palm Beach County.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding. Sections 120.57(1), 120.60,

Florida Statutes.

14. Petitioner has standing to seek a formal administrative hearing with

respect to this permit application. Section 120.57(1), Florida Statutes.

15. SFWMD has authority to adopt rules and regulations in support of its

responsibilities to implement Part IV, Chapter 373, Florida Statutes, relating

to management and storage of surface waters. Section 373.044, Florida Statutes.

In its Rule 40E-4.021(2), Florida Administrative Code, SFWMD has defined a

"letter of conceptual approval" as a surface water management permit approving

the concept of a master plan for a surface water management system. Under the

definition, a letter of conceptual approval is binding upon SFWMD and the

applicant. SFWMD Rule 40E-4.041(2)(a), Florida Administrative Code, provides:

The District [ SFWMD] issues three types of

surface water management permits: letters of

conceptual approval, construction permits, and

operation permits. . .

(a) A letter of conceptual approval may be

issued for projects that are to be developed

in phases. A letter of conceptual approval

does not authorize any construction.

In order to obtain a surface water management permit, including a letter of

conceptual approval, an applicant is required to meet the conditions set out at

SFWMD Rule 40E-4.301, Florida Administrative Code. The rule provides:

(1) In order to obtain a permit under this

chapter, an applicant must give reasonable

assurances that the surface water management

system:

(a) provides adequate flood protection and

drainage,

(b) will not cause adverse water quality

and quantity impacts on receiving waters and

adjacent lands regulated pursuant to chapter

373, Florida Statutes,

(c) will not cause discharges which result

in any violation, in surface waters of the

state, of the standards and criteria of

chapter 17-3,

(d) will not cause adverse impacts on

surface and groundwater levels and flows,

(e) will not cause adverse environmental

impacts,

(f) can be effectively operated and

maintained,

(g) will not adversely affect public health

and safety,

(h) is consistent with the requirements of

other public agencies,

( i) is, in the opinion of the District, the

most publicly acceptable alternative available,

(j) will serve a proposed land use which:

1. for conceptual approvals, is

compatible with the local government

comprehensive plan or is compatible with the

existing zoning for the area,

2. for construction and operation

permits, is compatible with the existing

zoning for the area,

(k) meets any applicable basin criteria in

chapter 40E-41,

(l) will not otherwise be harmful to the

water resources of the District, and will not

interfere with the legal rights of others as

defined in rule 7-40.07,

(m) is not against public policy, and

(n) will meet the general and specific

criteria in the document described in

paragraph 40E-4.091(1)(a).

16. SFWMD has adopted specific criteria for determining water quantity

impacts of a proposed system in a document entitled "Basis of Review for Surface

Water Management Permit Applications Within the South Florida Water Management

Disrict - December, 1982." See Rule 40E-4.091(1)(a), Florida Administrative

Code. Paragraph 3.2.1.2 of the "Basis of Review" document provides:

Discharge--Off-site discharge is limited to

amounts which will not cause additional

adverse off-site impacts. These amounts are:

a. historic discharges, or

b. amounts determined in previous District

permit actions, or

c. amounts specified in District criteria

(See Appendices 2 and 3).

Unless otherwise specified by previous

District permits, District criteria or local

government, a storm event of 3 day duration

and 25 year return frequency shall be used in

computing off-site discharge.

17. In determining water quality impacts, SFWMD has not sought to

duplicate efforts of the Department of Environmental Regulation. Rather, the

district has followed a policy of requiring implementation of "best management

practices" in surface water management systems.

18. Under Rule 40E-4.381(1), Florida Administrative Code, SFWMD is

authorized to impose reasonable conditions upon the issuance of permits. In its

staff analysis of the PBPC proposed surface water management system, SFWMD

proposed that twelve special conditions be attached to a letter of conditional

approval. Applicants have agreed to accept these special conditions as a part

of a letter of conditional approval. The special conditions are attached to

this Recommended Order as Appendix I.

19. With the imposition of the special conditions proposed by the SFWMD

staff, and of three other special conditions, reasonable assurance that the

surface water management system proposed for PBPC meets the requirements of Rule

40E-4.301, Florida Administrative Code, has been provided. These additional

special conditions are as follows:

(a) That slumping and erosion within the Caloosa canal be corrected so

that the Caloosa canal is able to accommodate the quantities of water that will

be discharged from PBPC.

(b) That the applicants record deed restrictions or restrictive

covenants which prohibit the following uses within Palm Beach Park of Commerce:

breweries, fertilizer manufacturers, coal and petroleum derivations

manufacturers, exterminator manufacturing and warehousing, and all chemical

manufacturing including insecticides, herbicides and pesticides.

(c) That prior to the issuance of any construction permits, detailed

plans be prepared for containing and disposing of toxic substances and for

preventing such substances from entering surface and ground water systems.

Emergency plans should also be established for dealing with any accidental

release of toxic substances.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

hereby,

RECOMMENDED:

That a Final Order be entered by the South Florida Water Management

District issuing a letter of conditional approval to the applicants for the

proposed surface water management plan for Palm Beach Park and Commerce and

imposing the twelve special conditions set out in Appendix I to this Recommended

Order and the three additional special conditions set out in Paragraph 7 of the

Conclusions of Law set out in this Recommended Order upon the applicants.

RECOMMENDED this 23rd day of February, 1983, in Tallahassee, Florida.

___________________________________

G. STEVEN PFIEFFER

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of February, 1983.

COPIES FURNISHED:

Tracy C. Sharpe, Esquire

Parish, Parish & Romani, P.A.

Post Office Box 3887

West Palm Beach, Florida 33402

Irene Kennedy Quincey, Esquire

South Florida Water Management

District

3301 Gun Club Road

Post Office Box V

West Palm Beach, Florida 33402-4238

Terry E. Lewis, Esquire

Robert M. Rhodes, Esquire

Messer, Rhodes & Vickers, P.A.

Suite 701, Lewis State Bank Bldg.

Post Office Box 1876

Tallahassee, Florida 32302-1876

Mr. John R. Maloy

Executive Director

South Florida Water Management

District

Post Office Box V

West Palm Beach, Florida 33402

Randall E. Denker, Esquire

Lehrman & Denker

103 North Gadsden Street

Post Office Box 1736

Tallahassee, Florida 32302

Alan J. Ciklin, Esquire

Boose, Ciklin & Martens

8th Floor - The Concourse

2000 Palm Beach Lakes Blvd.

West Palm Beach, Florida 33409

=================================================================

AGENCY FINAL ORDER

=================================================================

SOUTH FLORIDA WATER MANAGEMENT DISTRICT

CALOOSA PROPERTY OWNERS

ASSOCIATION, INC.,

Petitioner,

vs. DOAH NO. 82-1937

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT, and CALEFFE INVESTMENT,

LTD.,and WORTHINGTON ENTERPRISES,

INC.,

Respondents.

___________________________________/

FINAL ORDER

The Hearing Officer's Order came on to be heard before the Governing Board

of South Florida Water Management District on the 14th day of April 1983.

The Governing Board has considered the Findings of Fact, Conclusions of Law

and Recommended Order of the Hearing Officer, dated February 23, 1983,

Exceptions to Recommended Order of the Hearing Officer by Counsel for

Petitioner, Caloosa Property Owners Association, Inc. with a certificate of

service dated March 7, 1983, Reply to Exceptions to Recommended Order of the

Hearing Officer, by Counsel for Respondents, Caleffe Investment, Ltd. and

Worthington Enterprises, Inc., with a certificate of service dated March 10,

1983 and Exception to Recommended Order by Counsel for Respondent, South Florida

Water Management District with a certificate of service dated March 9, 1983.

Because the exceptions filed by Petitioner had the affect of disputing the

Findings of Fact of the Hearing Officer, each of the members of the Governing

Board was furnished a complete transcript of the Hearing held by the Hearing

Officer, and each Governing Board member has read the transcript.

With regard to the Exceptions filed by Petitioner, the Governing Board acts

as follows:

Exception Number 1 - Denied - the law allows

the Hearing Officer to recommend modifications

in the project as part of the Recommended

Order.

Exception Number 2 - (A) Denied - the record

reflects that the Caloosa Canal can be

designed and maintained to avoid problems with

erosion. (B) Denied - this is a Conceptual

Permit and the record reflects safe guards

against ground water contamination can be

established when tenants are known and before

occupation of each parcel of the Palm Beach

Park of Commerce.

Exception Number 3 - Denied - Conceptual

Approval is all that is sought and the record

reflects Caloosa Canal can be designed to

accommodate the flows expected. This design

would occur when a construction permit is

sought for the entire water management system

serving Palm Beach Park of Commerce if Caloosa

Canal problems are not corrected at an earlier

date.

Exception Number 4 - Denied - Water quality

existing presently in C-18 ( Loxahatchee River)

would not, according to the record, be

adversely affected by the Palm Beach Park of

Commerce.

Exception Number 5 - Denied - there is

evidence in the record that the design and

location of the Palm Beach Park of Commerce is

a "publicly acceptable alternative".

Exception Number 6 - Denied - the record

indicates consideration of the legal rights of

others.

Exception Number 7 - Denied - record indicates

that the proposed Park of Commerce has

necessary zoning, DRI approval and meets the

requirements for Conceptual Approval of South

Florida Water Management District.

Exception Number 8 - Denied - the record

reflects testimony that the artificial

wetlands will fulfill the function of natural

wetlands.

With regard to the Exception filed by Respondent, South Florida Water

Management District, the District acts as follows

(1) Exception Number 1 - Approved - a review

of the record indicates no intention on the

part of the Hearing Officer to delete the 10

limiting conditions imposed by the District in

its recommendation for approval; therefore,

the 10 limiting conditions are incorporated in

this Order.

(2) Exception Number 2 - Approved - a review

of the Findings of Fact (#8) of the Hearing

Officer indicates his intent with regard to

7(C) of his Conclusions of Law is that

detailed plans be prepared, at the time of

issuance of construction permits for

individual lots, for dealing, with containment

and disposal of toxic substances and

prevention of such substances from entering

surface and ground water

The Governing Board adopts the Findings of Fact, Conclusions of Law and

Recommended Order of the Hearing Officer, except as hereby modified:

(1) Modification of Paragraph 7 of the

Conclusions of Law to read: "With the

imposition of the limiting conditions, special

conditions proposed by the South Florida Water

Management District staff, and of three other

special conditions, reasonable assurance that

the surface water management system proposed

for Palm Beach Park of Commerce meets the

requirements of Rule 40E-4.301, Florida

Administrative Code, has been provided." These

additional special conditions are as follows:

(a) same as Hearing Officer's Recommended

Order.

(b) same as Hearing Officer's Recommended

Order.

(c) That prior to the issuance of any

construction permits for individual lots,

detailed plans be prepared or containing and

disposing of toxic substances and for

preventing such substances from entering

surface and ground water systems. Emergency

plans should also be established for dealing

with any accidental release of toxic

substances. Both the detailed and emergency

plans shall have the prior written approval of

the Department of Environmental Regulation.

The Governing Board orders the issuance of the subject permit in accordance

with this Order.

DONE and ORDERED on this the 14th day of April, 1983 in Cape Coral,

Florida.

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT, BY ITS GOVERNING BOARD

(Corporate Seal)

BY:______________________________

Chairman

ATTEST:

By:___________________________

Secretary

FILED WITH THE CLERK OF THE SOUTH

FLORIDA WATER MANAGEMENT DISTRICT

ON April 14, 1983

BY Jean Guy

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished TRACY

C. SHARPE, ESQUIRE, Farish, Farish & Romani, P.A., Post Office Box 3887, West

Palm Beach, Florida 33402; RANDALL E. DENKER, ESQUIRE, Lehrman and Denker Law

Offices, Post Office Box 1736, Tallahassee, Florida 32302; TERRY E. LEWIS,

ESQUIRE, Messer, Rhoads & Vickers, P.A., Suite 701 Lewis State Bank Building,

Post Office Box 1876, Tallahassee, Florida, 32302-1876, and ALAN J. CIKLIN,

ESQUIRE, Concourse Building, 8th Floor, 2000 Palm Beach Lakes Boulevard, West

Palm Peach, Florida 33409, by U S Mail, this 22nd day of April, 1983 and Irene

Kennedy Quincey, Esquire P. O. Pox V, West Palm Beach, Florida 33402-4238.

______________________________

Robert J. Grafton