91-002694 Concerned Citizens Of Orange Lake Area vs. Celebrity Village Resorts, Inc., And St. Johns River Water Management District Status: Closed Recommended Order on Friday, July 19, 1991.

Summary: Associational standing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONCERNED CITIZENS OF ORANGE LAKE AREA, )

)

Petitioner, )

)

v. ) CASE NO. 91-2694

)

CELEBRITY VILLAGE RESORTS, INC., and ST. )

JOHNS RIVER WATER MANAGEMENT DISTRICT, )

)

Respondents. )

__________________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 1 and 2,

1991, in Ocala, Florida, before the Division of Administrative Hearings, by its

designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Crawford Solomon

Qualified Representative

Concerned Citizens of

Orange Lake

Post Office Box 481

Citra, Florida 32681

For Respondent William L. Townsend, Jr.

Celebrity Resorts, Inc.: Attorney at Law

Post Office Box 250

Palatka, Florida 32178-0250

For Respondent Nancy B. Barnard

SJRWMD: Attorney at Law

St. Johns River Water

Management District

Attorney at Law

Post Office Box 1429

Palatka, Florida 32178-1429

STATEMENT OF ISSUES

The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is

entitled to a Management and Storage of Surface Waters ( MSSW) permit for a

surface management system to serve its proposed development in Marion County,

Florida.

PRELIMINARY STATEMENT

The parties submitted three Joint Exhibits which were admitted in evidence:

Joint Exhibit 1--the permit application file; Joint Exhibit 2--the engineering

plans for the proposed project; and Joint Exhibit 3--the Management and Storage

of Surface Waters Applicant's Handbook (Handbook) and the proposed revisions to

Chapter 40C-41, Florida Administrative Code, for Sensitive Karst Area Basin.

Petitioner, Concerned Citizens of Orange Lake Area (Citizens), presented

the testimony of Douglas L. Smith, Delcie J. Suto, Carol Riley, and Crawford

Solomon. Petitioner's Exhibits 3, 4, 5, and 6 were admitted in evidence.

Celebrity presented the testimony of George Michael Thompson and John D.

Daniels. The St. Johns River Water Management District (District) presented the

testimony of Michael A. Register, Mark D. Shafer, Karen Newman, and Dwight

Jenkins. District Exhibits 1 and 2 were admitted in evidence.

No transcript was filed. The parties all timely filed their proposed

findings of fact and conclusions of law. All proposed findings of fact and

conclusions of law have been considered. A specific ruling on each proposed

finding of fact is made in the Appendix attached hereto and made a part of this

Recommended Order.

FINDINGS OF FACT

PROPOSED PROJECT

1. Celebrity is seeking a District MSSW permit to construct a surface

water management system to serve a proposed recreation vehicle (RV) park. The

facility is to be located in northern Marion County on the southern border of

Orange Lake, an Outstanding Florida Water. The entire site is within the

geographic boundaries of the District.

2. The RV park is to be located on 75 acres of land, and is to contain 372

RV and "park model" sites, four bath houses, a clubhouse, and an expanded

boathouse.

3. There is a "break" in the watersheds of the Celebrity property caused

by a ridge across the approximate center of the project site. The effect of

this "break" is that approximately one-half of the property drains toward the

lake while the approximate southerly half of the property drains into an

independent depression creating a watershed separate from the lake.

4. Parts of Marion County and Alachua county have been designated as

Sensitive Karst Area Basin by the District. The project site is located in the

designated area.

5. The existing land use is open pasture. The property was previously

used for citrus groves.

STANDING

6. Concerned Citizens of Orange Lake Area is an unincorporated group of

approximately 76 individuals who want to prevent pollution of Orange Lake.

7. Of the 76 members, three members were present and testified at the

hearing. The members attending the hearing were an artist (Riley), a

photographer ( Suto), and a bass guide (Solomon).

8. Ms. Suto testified that she lives about 1 to 1 1/2 miles from the site.

Ms. Riley testified that she lives next door to Ms. Suto and determined that to

be over two miles away from the site. Mr. Solomon testified that he lives on

the southeast side of Orange Lake approximately 1 to 1 1/2 miles from the

project site. No witness testified that any member has a property interest in

the subject property.

9. Of the members who testified, none use the subject property. There was

no testimony that other members use the property.

10. Twenty-six members wrote letters of concern to the District.

11. Ms. Suto testified to the existence of high levels of lead in her well

water.

WATER QUANTITY

12. The existing land use, pasture, was used to determine the pre-

development peak rate and volume of discharge.

13. The existing surface drainage of the 75-acre project site is divided

into two basins. On the north side of the property, the surface water flows

toward Orange Lake. This basin is designated on the plans, sheet 3 of 16, by a

"2." The south portion of the property is contained within the landlocked

drainage basin which is designated on the plans, sheet 3 of 16, by a "1."

14. The post-development flow of surface water will be in the same

direction as the pre-development flow.

15. There are no proposed development plans or encroachments into the 100-

year floodplain. Therefore, there is no increase in potential for damages to

off-site property or persons caused by floodplain development or encroachment,

retardance, acceleration, displacement, or diversion of surface waters. There

is no reduction in natural storage areas and, in fact, the proposed project

increases the natural storage on site.

Drainage Basin 2

16. The District's criterion for systems discharging to basins with an

outlet is that the post-development peak rate of discharge for the 25-year, 24-

hour storm event shall not exceed the pre-development peak rate of discharge for

the 25-year, 24-hour storm event. The District's criteria also require that the

post-development volume of discharge not exceed the pre-development volume of

discharge.

17. The retention system which ultimately discharges to Orange Lake is

designed to retain the entire 25-year, 24-hour storm event through the series of

basins on site.

18. The pre-development peak rate of discharge for the drainage basin

which flows to the lake is 55 cubic feet per second (cfs) during the 25-year,

24-hour storm event.

19. The post-development peak rate of discharge from drainage basin 2 is 4

cfs.

20. The post-development peak rate of discharge is less than the pre-

development peak rate of discharge.

21. Runoff from each RV site will be collected in an individual, ten-inch-

deep retention basin.

22. Runoff from the road will be collected in roadside swales. Runoff

from the clubhouse, country store, and associated parking lots will be conveyed

to drainage retention area (DRA) No. 8.

23. The individual retention basins have the capacity to retain the 25-

year, 24-hour storm event without discharging.

24. Any surface water discharges from the individual retention basins in

Basins 2A, 2B, and 2C as designated on sheet 3 of 16 will flow to DRA Nos. 4, 5,

and 7, respectively.

25. In Basin 2D, runoff from the road and RV park model sites will flow to

DRA No. 6. The discharge from DRA No. 6 in the 25-year, 24-hour storm will be

zero (0) cfs. In larger storms, any discharge from DRA No. 6 will flow to DRA

No. 7. In the event DRA No. 7 overflows, the runoff will flow to DRA No. 5.

26. Basins 2G and 2F are located around two existing sinkholes which

currently collect stormwater runoff. In the proposed project, Basins 2G and 2F

continue to drain the same area as pre-development. However, additional

impervious surfaces will be placed in the drainage area. For this reason, an

additional three to five feet of clean fill will be placed in the bottom of each

sinkhole for filtration purposes.

27. Basins 2H and 2I are less than one acre and currently drain off site.

Berms are proposed around the property line at the basin to keep the stormwater

on site. Basins 2H and 2I retain 3/4 inch of runoff over the individual basin.

28. The runoff from Basins 2E1 and 2E flows to DRA No. 8 via a drainage

swale.

29. DRA No. 8 will retain 3/4 inch of runoff from the drainage area and is

an off-line retention basin. The DRA No. 8 is equipped with a diversion box

which allows the 3/4 inch of runoff to enter the DRA and then diverts the runoff

from larger storms around the DRA so that the treatment volume of runoff (3/4

inch) continues to be treated in DRA No. 8 and does not mix with and discharge

from DRA No. 8 during larger storms.

Drainage Basin 1

30. Drainage Basin 1 as designated on plan sheet 3 of 16 is a landlocked

basin which does not discharge to Orange Lake.

31. In Drainage Basin 1, as in Basin 2, the runoff from the RV sites flows

to the individual retention basins which retain the 25-year, 96-hour storm

event. The runoff from the road flows to swales. Overflow from the basins and

swales flow to the DRAs. Drainage Basin 1 does not discharge during the 100-

year, 24-hour or the 25-year, 24-hour storm event, pre-development or post-

development

32. Drainage Basin 1 is designed to retain the 100-year, 24-hour storm,

which is an 11 inch storm event.

33. Drainage Basin 1 is also designed to retain the 25-year, 96-hour storm

event.

34. The 25-year, 96-hour storm event is 143% of the 25-year, 24-hour storm

event.

WATER QUALITY

Design Criteria

35. The District's design criteria for water quality are set out in

Section 40C-42.025, Florida Administrative Code.

36. The District's retention criteria require that a proposed system have

a treatment/pollution abatement volume of 1/2 inch of runoff from the site.

37. For discharges to an OFW, the pollution abatement volume is increased

by fifty percent. Therefore, the system must have the volume to retain 3/4 inch

of runoff from the site. Each retention basin retains a minimum of 3/4 inch of

runoff from the site.

38. The District's criteria regarding quantity of water discharged require

a larger volume of runoff to be retained than the District's criteria regarding

quality. Therefore, the retention system exceeds the District's criteria

regarding quality in order to meet the criteria regarding quantity.

39. The District's retention criteria require that the basin recover the

treatment volume within 72 hours. Most of the retention basins retain more than

the required treatment volume of 3/4 inch, and most will also recover, or become

dry, within 72 hours.

40. The retention basins are capable of being effectively maintained in

that the side slopes and bottom of the basins can easily accommodate mowing

equipment.

41. For erosion control, staked hay bales and silt screens will be

utilized on site during construction to prevent the off-site transport of soil

material. Following construction, the retention basins will be vegetated with

sod to prevent erosion.

42. The District's criteria require that facilities which receive

stormwater runoff from areas with greater than fifty percent of impervious

surface shall include a baffle or other device for preventing oil and grease

from leaving the system.

43. DRA Nos. 1, 4, 5, and 8 are equipped with an oil and grease removal

device called a baffle. The baffle is an acceptable engineering design for the

removal of oil and grease from stormwater in a retention basin.

44. The facility operation is uncomplicated. If the individual basins did

fill due to a storm event greater than the 25-year, 24-hour or the 25-year, 96-

hour in the landlocked basin, they would simply overflow into a DRA. No

structures are involved to prevent flooding in large storm events.

Water Quality Impacts

45. The individual retention basin at each RV site is considered off-line

because it does not discharge in the 25-year, 24-hour storm event.

46. DRA Nos. 1, 2, 3, 4, 5, 6, and 7 are considered off-line because they

do not discharge during the design storm.

47. DRA No. 8 is considered off-line because of the diversion box which

provides for the retention of the treatment volume and diversion of the larger

storms.

48. Off-line retention systems generally show greater pollutant treatment

efficiencies than other types of stormwater treatment.

49. The first 1/2 inch of runoff or the "first flush" of rainfall contains

ninety percent of the pollutants from the site.

SURFACE WATER

50. Utilizing information and methodologies generally accepted by experts

in the field of water quality, the District analyzed and projected the average

surface water and groundwater quality of the discharge from the surface water

management system for the proposed project.

51. No data on runoff concentrations currently exists for RV parks. This

analysis was based on a review of existing data on untreated runoff

concentrations from three multifamily developments and one highway study.

52. Because data from studies of multifamily residential and highway

projects was used, the District's estimates of the untreated runoff

concentrations for this project are conservative in that the actual

concentrations are probably less than estimated.

53. The District's analysis of the average quality of the discharge from

the proposed system was also based on projecting the treatment efficiencies

associated with the system.

54. This analysis was done by reviewing data from documented studies

previously conducted to ascertain the treatment efficiency of retention methods

of stormwater treatment.

55. Generally, retention of the first 1/2 inch of runoff removes eighty

percent of the pollutants.

56. On this project, a treatment efficiency of ninety-five percent was

assumed based on the fact that the system is off-line treatment and a minimum of

3/4 inch of runoff from the site will be retained in the basins prior to

discharge.

57. The expected average untreated runoff concentrations were then educed

by the expected treatment efficiencies to project post-treatment water quality

of the discharge from the proposed system.

58. These numbers were then compared to Chapter 17-302, Florida

Administrative Code, water quality standards for Class III water bodies, and

ambient water quality in Orange Lake.

59. Orange Lake is classified as an OFW. Therefore, the proposed project

cannot be permitted if it will cause degradation of that water body.

60. The background data or ambient water quality data for phosphorous and

nitrogen was taken from the Orange Lake Biological Report by the Florida Game

and Freshwater Fish Commission in 1986. The ambient water quality for the other

parameters in Table 2 of District Exhibit 2 was computed using eight years of

data from a District monitoring station on Orange Lake.

61. The projected average concentration for each constituent in the

discharge from the system is less than the ambient water quality of Orange Lake.

Therefore, the proposed surface water discharge will not violate state water

quality standards in waters of the state.

62. The post-development pollutant loading rates should be equal to or

better than the pollutant loading rates from the use of the property as citrus

or pastureland because the runoff is being retained on site and treated before

being discharged.

GROUNDWATER

63. Groundwater discharges were reviewed by assessing the type of soil

below the retention basin and the distance to the water table.

64. The soil on the site contains some organic matter which is beneficial

for treatment purposes.

65. Based on the borings submitted by Celebrity, the water table, if any,

is five feet or more below the bottom of any proposed retention basin.

66. Runoff in the basin will percolate through the soil.

67. Nutrients such as nitrogen and phosphorus will be taken up by the

vegetation in the bottom of the basins.

68. Metals will bind to the soil material below the basin.

69. Oils and greases will be broken down through microbial degradation

into nontoxic material.

70. Groundwater discharges from the proposed system will not violate any

applicable state groundwater quality standards.

71. These standards will be met within the first three feet below the

treatment basins.

72. The standards will also be met by the time the groundwater discharge

moves to the edge of the zone of discharge which is at the property boundary.

73. The discharge from the proposed Celebrity project will not cause or

contribute to a violation of state water quality standards in the receiving

waters.

SINKHOLES

74. Sinkholes may form on the site.

75. Sinkholes that form will probably be "cover subsidence" sinkholes.

Cover subsidence sinkholes are those in which a void below the surface fills

with the soil from above, causing a depression in the ground surface.

76. There are four relict sinkholes on site. They are cover subsidence

sinkholes.

77. The sinkhole nearest the lake has water in the bottom. Stormwater

runoff is directed away from the sinkhole. Any water which enters the sinkhole

from the land surface or above will enter from the sky.

78. The District has proposed criteria for stormwater systems in

designated Sensitive Karst Area Basins. Those criteria are that 1) the water in

the basins shall be no deeper than ten feet deep; 2) there should be at least

three feet of unconsolidated material between the bottom of the basin and the

top of the water table; and 3) the basins should be fully vegetated. The

District currently applies these criteria as policy.

79. In this project, the basins are shallow, ranging from ten inches deep

at the RV sites to 2 1/2 feet in the DRAs.

80. The basins have at least three feet of unconsolidated material between

the bottom of the basin and the top of the water table. In the soil borings

performed by Celebrity, the water table was shown to exist between five and

fifty feet below land surface.

81. The proposed project design meets or exceeds the proposed criteria for

Sensitive Karst Area Basins.

82. The basins will be fully vegetated or sodded with grass.

83. Lineations or lineaments are solution features which may indicate a

fracture of the underlying limestone.

84. There may be a lineament on the site.

85. There are other sinkholes in the area.

86. If a cover subsidence sinkhole develops in an individual retention

basin or DRA, stormwater, if any, will seep or percolate through the several

feet of soil prior to reaching an aquifer.

87. Most of the pollutants in the retention basin will meet groundwater

quality standards prior to percolation and further treatment in the soil.

OPERATION AND MAINTENANCE

88. Special conditions Nos. 13, 14, and 15 on the permit will require

Celebrity to inspect the system monthly for sinkhole development. If a sinkhole

develops, Celebrity must notify the District within 48 hours of its discovery.

Celebrity must submit a detailed repair plan within 30 days for written approval

by the District.

89. Celebrity proposes to repair any sinkholes that develop by a District-

approved method.

90. Celebrity Resorts, Inc., is a legally established corporation

registered in Delaware and owns the subject property.

91. Celebrity does not intend to subdivide the property but to sell

memberships to use the property on a time-share basis.

92. Celebrity will administratively operate the site by employing a park

manager who will remain on the property 24 hours a day. If any problems occur

with the basins, either he or his designee will be on site to respond quickly to

the situation. The park manager will have a full-time maintenance staff which

will operate the park.

93. Celebrity will financially operate and maintain the proposed system

using funds currently raised and in the future by membership fees. Celebrity is

a publicly held corporation. Funds raised from the sale of stock, approximately

$3,500,000, have paid for legal and administrative fees as well as the land

purchase.

94. Approximately $400,000 has been reserved to operate the facility. It

will cost approximately $15,000 per month to run the park.

95. Memberships will be sold for $300 per year. Part of the membership

fees will go toward the general maintenance of the site.

96. Maintenance of the proposed system will include regular mowing and

monthly inspection for sinkholes and repair if necessary.

WETLANDS IMPACTS OF THE PROJECT

97. The property contains waters of the state wetlands and isolated

wetlands.

98. The waters of the state wetlands are those along the shore of Orange

Lake.

99. One isolated wetland exists on site in the sinkhole which is closest

to the lake. The sinkhole has standing water in which lemna, or duckweed, is

growing. Duckweed is a listed plant species in Section 16.1.1(2) of the

Handbook.

100. No construction is proposed in either the waters of the state

wetlands or the isolated wetland.

101. The District criteria require the review of impacts to off-site

aquatic and wetland dependent species relative to the functions currently

provided by the wetlands to these types of fish and wildlife.

102. Since there will be no construction in the wetlands, there will be no

impacts to the habitat, abundance and diversity, or food sources of off-site

aquatic and wetland dependent species from this proposed project.

103. No threatened or endangered aquatic and wetland dependent species

were observed on site.

104. The proposed permit application will not adversely affect natural

resources, fish, or wildlife in a manner which is inconsistent with the District

criteria.

105. The proposed permit application will not adversely affect

hydrologically-related environmental functions in a manner which is inconsistent

with the District criteria.

CONCLUSIONS OF LAW

106. The Division of Administrative Hearings has jurisdiction of the

parties to and subject matter of these proceedings. Section 120.57(1), Florida

Statutes.

107. The initial issue which requires resolution is whether Concerned

Citizens of Orange Lake Area has standing to bring this action. The burden is

on Citizens to prove standing. Department of Health and Rehabilitative Services

v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979). In order to have standing, a

party's substantial interests must be determined by the agency action. Section

120.57, Florida Statutes.

108. Different standards have developed for determining standing of

individuals and associations. While most of the standing cases have arisen

within the context of rule challenges, the principles are similar in a

permitting context. Boca Raton Mausoleum, Inc. v. Department of Banking and

Finance, 511 So.2d 1060 (Fla. 1st DCA 1987), and Farmworkers Rights Organization

v. Department of Health and Rehabilitative Services, 417 So.2d 753 (Fla. 1st DCA

1978).

109. The seminal cases are Florida Department of Offender Rehabilitation

v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215 (Fla.

1978); Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d

478 (Fla. 1st DCA 1978), rev. denied, 415 So.2d 1359 (Fla. 1982), and Alice P.,

supra. The standard which can be synthesized from these seminal cases requires

a showing of either a real and immediate effect or an injury in fact and a

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

to protect [zone of interest].

110. The Florida Supreme Court next enunciated standing requirements for

associations in Florida Home Builders Association v. Department of Labor and

Employment Security, 412 So.2d 351 (Fla. 1982). There the court held that an

association has standing to bring an action solely as a representative of its

members if

1. A substantial number of its members,

although not a majority, are "substantially

affected" [will suffer a real and immediate

effect or injury in fact];

2. The subject matter of the action is within

the association's general scope of interest

and activity; and

3. The relief is of the type appropriate for

the association to receive on behalf of its

members.

Paraphrased, the test is whether the "association has a legitimate associational

interest, on behalf of a substantial number of its members, in the rule's

operation." Id. at 354.

111. In Village Park Mobile Home Association, Inc., v. State Department of

Business Regulation, 506 So.2d 426 (Fla. 1st DCA 1987), rev. denied, 513 So.2d

1063 (Fla. 1987), the Jerry test was revalidated to the extent that the injury

or threat of injury must be both real and immediate, not conjectural or

hypothetical.

112. The zone of interest part of the test which arose from Agrico played

an integral part in Florida Society of Ophthalmology v. State Board of

Optometry, 532 So.2d 1279 (Fla. 1st DCA 1988), rev. denied, 542 So.2d 1333 (Fla.

1989). Ophthalmology is a case arising under Section 120.57(1), Florida

Statutes, and the court discusses at great length the zone of interest concept

as it relates to both rule challenges and proceedings under Section 120.57(1).

The court noted, at page 1284:

We initially observe that not everyone

having an interest in the outcome of a

particular dispute over an agency's

interpretation of the law submitted to its

charge, or the agency's application of that

law in determining the rights and interests

of members of government or the public, is

entitled to participate as a party in an

administrative proceeding to resolve that

dispute. Were that not so, each interested

citizen could, merely by expressing an

interest, participate in the agency's efforts

to govern, a result that would unquestionably

impede the ability of the agency to function

efficiently and inevitably cause an increase

in the number of litigated disputes well above

the number that administrative and appellate

judges are capable of handling. Therefore,

the legislature must define and the courts

must enforce certain limits on the public's

right to participate in administrative

proceedings. The concept of standing is

nothing more than a selective method for

restricting access to the adjudicative

process, whether it be administrative or

purely judicial, by limiting the proceeding

to actual disputes between persons whose

rights and interests subject to protection by

the statutes involved are immediately and

substantially affected. Thus, it has been

stated, the "purpose of the law of standing

is to protect against improper plaintiffs."

59 Am.Jur.2d, Parties Section 30 (1987).

The court in Ophthalmology, supra, concluded that the petitioners there lacked

standing because they failed to show that:

their substantial interests will be

injuriously affected in any manner that

differs from the interests of the public

generally . . . .

113. Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878

(Fla. 1st DCA 1988), a companion rule challenge to the above-cited Ophthalmology

case, makes it clear that general interest in the subject matter of a rule is

insufficient to support standing because the petitioners' standing must be

predicated on a "legally recognized right of sufficient immediacy and reality to

support their standing to challenge the validity of the adopted rule."

114. Another case, International Jai-Alai Players Association v. Florida

Pari-Mutual Commission, 561 So.2d 1224 (Fla. 3rd DCA 1990), sheds some light on

the applicable standing criteria in rule challenge proceedings. In the Jai-Alai

case, the association filed a rule challenge under Section 120.56(1) to contest

the changing of playing dates. Citing Florida Home Builders, supra, the court

held that the members of the association had no standing under the Agrico test

and that, therefore, the association had no standing on behalf of its members.

The central injury asserted by the association on behalf of its members was that

the changes in playing dates would aid fronton owners in a labor dispute, by

breaking or prolonging an ongoing strike by the association, to the economic

detriment of its members. The court found this to be "far too remote and

speculative to qualify under the first prong of the Agrico standing test." It

further held that the association did not show that the injury which it asserted

on behalf of its members is the type of injury which the subject proceedings

were designed to protect. This appears to be a further clarification of the

zone of interest test discussed above.

115. The standing of organizations dedicated to the protection of the

environment is discussed at length in In the Matter of Surface Water Management

Permit No. 50-01420-S, 515 So.2d 1288 (Fla. 4th DCA 1987). This case reaffirmed

the principles that a showing must be made that the organization has a "specific

interest" which will be adversely impacted by the agency action. "Adverse

impact" was interpreted to include "impending injury," "substantially affected,"

"sufficient immediacy and reality," and "injury in fact." Citing to the injury

in fact test in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d

636 (1972), the court included two standing requirements for organizations,

namely that the organization seeking review must be among the injured and that

the organization or its members must be injured in a manner greater than merely

one of aesthetics and a lessening of environmental values of the area sought to

be preserved.

116. Another decision that provides guidance in resolving the standing

issues of the present case is Grove Isle, Ltd. v. Bayshore Homeowners

Association, Inc., 418 So.2d 1046 (Fla. 1st DCA 1982). There, the petitioner

sought to challenge a determination that a marina developer did not require a

lease of sovereign submerged lands. The nature of the petitioner's interests is

described as follows at page 1047 of that decision:

Bayshore Homeowner's Association and others

are individuals and special interest groups

who reside in the residential area across

from Grove Isle on the mainland and who use

the proposed marina site for recreational

activities. They, of course, oppose

construction of the marina, arguing that it

will interfere with their enjoyment of the

area and pollute that part of Biscayne Bay.

In affirming the dismissal of the Petition for lack of standing, the court went

on to state:

We affirm . . . and hold that the

petitioners lack standing to challenge DNR's

decision that no lease was required.

Petitioners have failed to show how their

"substantial interests" will be "affected" by

the DNR's decision that no lease is required.

They, therefore, were not entitled to

initiate Section 120.57 proceedings. Section

120.52(10); Section 120.57, Florida Statutes

(1979). Their petitions for administrative

hearing allege that they will be adversely

affected by the adverse consequences to

Biscayne Bay which will be caused by

construction of the marina. These allegations

do not show how petitioners are "substantially

affected" any more than the general public by

DNR's decision not to require a lease for the

marina. See U.S. Steel Corp. v. Save Sand

Key, Inc., 303 So.2d 9 (Fla. 1974); Chabau v.

Dade County, 385 So.2d 129 (Fla. 3d DCA 1980).

117. The principles from Grove Isle and its progeny are still followed.

In Friends of the Everglades, Inc. v. Board of Trustees of the Internal

Improvement Trust Fund and Department of Natural Resources, 13 FALR 1943 (1991),

the Governor and Cabinet, sitting as the Board of Trustees of the Internal

Improvement Trust Fund, concluded:

The remaining interests asserted by the

Petitioner as a basis for standing in this

case are the interests of its members who

live near and use the subject property and

the general interest of the Petitioner and

its members in protecting, preserving, and

conserving environmentally endangered lands.

These interests are also an insufficient basis

for standing in this case. In order to

establish standing in a case of this nature,

the Petitioner must allege that its

substantial interests will be injuriously

affected in some manner that differs from the

interests of the general public. The

Petitioner has failed to allege any

substantial interest different from that of

the public in general and it has failed to

identify any special injury to its interests

different from any injury that might be borne

by the rest of the public.

118. In applying all of these principles to the evidence presented by

Citizens, it can only be concluded that it lacks standing to bring this

proceeding. First, it has failed to show that a substantial number of its

members are substantially affected by the intended District action. There are

allegedly 76 members of the organization, but only three testified at the

hearing. Apparently, 26 members wrote letters to the District protesting the

entire Celebrity project, but those letters were not placed into evidence.

Additionally, even assuming that a substantial number of the members are

affected by the permit sought, no showing was made that they are "substantially

affected" by the proposed permit. Although the group's alleged goal is to

prevent pollution of Orange Lake, this general concern alone is not sufficient

to establish standing because the group has not shown how it will be affected

differently than the general public.

119. Although three members of the group testified that they live from 1

to 2 miles from the project site and that they use Orange Lake for recreational

and business purposes, this testimony is insufficient to establish a substantial

injury in fact to the organization. Finally, no showing was made that the

relief sought by the group is of the type which is appropriate for Citizens to

receive on behalf of its members.

120. Since the hearing has been held and the facts have been found,

summary conclusions are made herein regarding the conformance of the project

with the applicable statutes and rules. Celebrity must provide reasonable

assurances that construction, operation, and maintenance of the MSSW system will

meet all applicable District rules and statutes. It must be concluded herein

that Celebrity has provided reasonable assurances that all District criteria

regarding water quality, water quantity, operation, maintenance, karst sensitive

areas, and wetland impacts will be met or exceeded by the MSSW system proposed.

RECOMMENDATION

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

RECOMMENDED that the petition filed by Concerned Citizens of Orange Lake

Area be dismissed for lack of standing and that Celebrity Resorts, Inc., be

issued a MSSW permit for its system as designed and proposed.

DONE and ENTERED this 19th day of July, 1991, in Tallahassee, Florida.

______________________________________

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the Division of

Administrative Hearings this 19th

day of July, 1991.

APPENDIX TO THE RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2),

Florida Statutes, on the proposed findings of fact submitted by the parties in

this case.

Specific Rulings on Proposed Findings of Fact

Submitted by Petitioner,

Concerned Citizens of Orange Lake Area

1. Proposed findings of fact 1-6 are subordinate to the facts actually found in

this Recommended Order.

Specific Rulings on Proposed Findings of Fact

Submitted by Respondent, Celebrity Resorts, Inc.

1. Proposed findings of fact 1-38 are subordinate to the facts actually found

in this Recommended Order.

Specific Rulings on Proposed Findings of Fact

Submitted by Respondent, St. Johns River

Water Management District

1. Each of the following proposed findings of fact is adopted in substance as

modified in the Recommended Order. The number in parentheses is the Finding of

Fact which so adopts the proposed finding of fact: 1&2(1); 3-7(4-7); 8-20(8-

20); 21(2); 22-31(21-30); 32(16); and 33-107(31-105).

COPIES FURNISHED:

Crawford Solomon

Qualified Representative

Concerned Citizens of

Orange Lake

Post Office Box 481

Citra, FL 32681

William L. Townsend, Jr.

Attorney at Law

Post Office Box 250

Palatka, FL 32178-0250

Nancy B. Barnard

Attorney at Law

St. Johns River Water

Management District

Post Office Box 1429

Palatka, FL 32178-1429

Henry Dean, Executive Director

St. Johns River Water Management District

Post Office Box 1429

Palatka, FL 32178-1429

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.