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.
Recommended Order on Friday, July 19, 1991.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8CONCERNED CITIZENS OF ORANGE LAKE AREA, )
15)
16Petitioner, )
18)
19v. ) CASE NO. 91-2694
24)
25CELEBRITY VILLAGE RESORTS, INC., and ST. )
32JOHNS RIVER WATER MANAGEMENT DISTRICT, )
38)
39Respondents. )
41__________________________________________)
42RECOMMENDED ORDER
44Pursuant to notice, a formal hearing was held in this case on July 1 and 2,
601991, in Ocala, Florida, before the Division of Administrative Hearings, by its
72designated Hearing Officer, Diane K. Kiesling.
78APPEARANCES
79For Petitioner: Crawford Solomon
83Qualified Representative
85Concerned Citizens of
88Orange Lake
90Post Office Box 481
94Citra, Florida 32681
97For Respondent William L. Townsend, Jr.
103Celebrity Resorts, Inc.: Attorney at Law
109Post Office Box 250
113Palatka, Florida 32178-0250
116For Respondent Nancy B. Barnard
121SJRWMD: Attorney at Law
125St. Johns River Water
129Management District
131Attorney at Law
134Post Office Box 1429
138Palatka, Florida 32178-1429
141STATEMENT OF ISSUES
144The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is
154entitled to a Management and Storage of Surface Waters ( MSSW) permit for a
168surface management system to serve its proposed development in Marion County,
179Florida.
180PRELIMINARY STATEMENT
182The parties submitted three Joint Exhibits which were admitted in evidence:
193Joint Exhibit 1--the permit application file; Joint Exhibit 2--the engineering
203plans for the proposed project; and Joint Exhibit 3--the Management and Storage
215of Surface Waters Applicant's Handbook (Handbook) and the proposed revisions to
226Chapter 40C-41, Florida Administrative Code, for Sensitive Karst Area Basin.
236Petitioner, Concerned Citizens of Orange Lake Area (Citizens), presented
245the testimony of Douglas L. Smith, Delcie J. Suto, Carol Riley, and Crawford
258Solomon. Petitioner's Exhibits 3, 4, 5, and 6 were admitted in evidence.
270Celebrity presented the testimony of George Michael Thompson and John D.
281Daniels. The St. Johns River Water Management District (District) presented the
292testimony of Michael A. Register, Mark D. Shafer, Karen Newman, and Dwight
304Jenkins. District Exhibits 1 and 2 were admitted in evidence.
314No transcript was filed. The parties all timely filed their proposed
325findings of fact and conclusions of law. All proposed findings of fact and
338conclusions of law have been considered. A specific ruling on each proposed
350finding of fact is made in the Appendix attached hereto and made a part of this
366Recommended Order.
368FINDINGS OF FACT
371PROPOSED PROJECT
3731. Celebrity is seeking a District MSSW permit to construct a surface
385water management system to serve a proposed recreation vehicle (RV) park. The
397facility is to be located in northern Marion County on the southern border of
411Orange Lake, an Outstanding Florida Water. The entire site is within the
423geographic boundaries of the District.
4282. The RV park is to be located on 75 acres of land, and is to contain 372
446RV and "park model" sites, four bath houses, a clubhouse, and an expanded
459boathouse.
4603. There is a "break" in the watersheds of the Celebrity property caused
473by a ridge across the approximate center of the project site. The effect of
487this "break" is that approximately one-half of the property drains toward the
499lake while the approximate southerly half of the property drains into an
511independent depression creating a watershed separate from the lake.
5204. Parts of Marion County and Alachua county have been designated as
532Sensitive Karst Area Basin by the District. The project site is located in the
546designated area.
5485. The existing land use is open pasture. The property was previously
560used for citrus groves.
564STANDING
5656. Concerned Citizens of Orange Lake Area is an unincorporated group of
577approximately 76 individuals who want to prevent pollution of Orange Lake.
5887. Of the 76 members, three members were present and testified at the
601hearing. The members attending the hearing were an artist (Riley), a
612photographer ( Suto), and a bass guide (Solomon).
6208. Ms. Suto testified that she lives about 1 to 1 1/2 miles from the site.
636Ms. Riley testified that she lives next door to Ms. Suto and determined that to
651be over two miles away from the site. Mr. Solomon testified that he lives on
666the southeast side of Orange Lake approximately 1 to 1 1/2 miles from the
680project site. No witness testified that any member has a property interest in
693the subject property.
6969. Of the members who testified, none use the subject property. There was
709no testimony that other members use the property.
71710. Twenty-six members wrote letters of concern to the District.
72711. Ms. Suto testified to the existence of high levels of lead in her well
742water.
743WATER QUANTITY
74512. The existing land use, pasture, was used to determine the pre-
757development peak rate and volume of discharge.
76413. The existing surface drainage of the 75-acre project site is divided
776into two basins. On the north side of the property, the surface water flows
790toward Orange Lake. This basin is designated on the plans, sheet 3 of 16, by a
"8062." The south portion of the property is contained within the landlocked
818drainage basin which is designated on the plans, sheet 3 of 16, by a "1."
83314. The post-development flow of surface water will be in the same
845direction as the pre-development flow.
85015. There are no proposed development plans or encroachments into the 100-
862year floodplain. Therefore, there is no increase in potential for damages to
874off-site property or persons caused by floodplain development or encroachment,
884retardance, acceleration, displacement, or diversion of surface waters. There
893is no reduction in natural storage areas and, in fact, the proposed project
906increases the natural storage on site.
912Drainage Basin 2
91516. The District's criterion for systems discharging to basins with an
926outlet is that the post-development peak rate of discharge for the 25-year, 24-
939hour storm event shall not exceed the pre-development peak rate of discharge for
952the 25-year, 24-hour storm event. The District's criteria also require that the
964post-development volume of discharge not exceed the pre-development volume of
974discharge.
97517. The retention system which ultimately discharges to Orange Lake is
986designed to retain the entire 25-year, 24-hour storm event through the series of
999basins on site.
100218. The pre-development peak rate of discharge for the drainage basin
1013which flows to the lake is 55 cubic feet per second (cfs) during the 25-year,
102824-hour storm event.
103119. The post-development peak rate of discharge from drainage basin 2 is 4
1044cfs.
104520. The post-development peak rate of discharge is less than the pre-
1057development peak rate of discharge.
106221. Runoff from each RV site will be collected in an individual, ten-inch-
1075deep retention basin.
107822. Runoff from the road will be collected in roadside swales. Runoff
1090from the clubhouse, country store, and associated parking lots will be conveyed
1102to drainage retention area (DRA) No. 8.
110923. The individual retention basins have the capacity to retain the 25-
1121year, 24-hour storm event without discharging.
112724. Any surface water discharges from the individual retention basins in
1138Basins 2A, 2B, and 2C as designated on sheet 3 of 16 will flow to DRA Nos. 4, 5,
1157and 7, respectively.
116025. In Basin 2D, runoff from the road and RV park model sites will flow to
1176DRA No. 6. The discharge from DRA No. 6 in the 25-year, 24-hour storm will be
1192zero (0) cfs. In larger storms, any discharge from DRA No. 6 will flow to DRA
1208No. 7. In the event DRA No. 7 overflows, the runoff will flow to DRA No. 5.
122526. Basins 2G and 2F are located around two existing sinkholes which
1237currently collect stormwater runoff. In the proposed project, Basins 2G and 2F
1249continue to drain the same area as pre-development. However, additional
1259impervious surfaces will be placed in the drainage area. For this reason, an
1272additional three to five feet of clean fill will be placed in the bottom of each
1288sinkhole for filtration purposes.
129227. Basins 2H and 2I are less than one acre and currently drain off site.
1307Berms are proposed around the property line at the basin to keep the stormwater
1321on site. Basins 2H and 2I retain 3/4 inch of runoff over the individual basin.
133628. The runoff from Basins 2E1 and 2E flows to DRA No. 8 via a drainage
1352swale.
135329. DRA No. 8 will retain 3/4 inch of runoff from the drainage area and is
1369an off-line retention basin. The DRA No. 8 is equipped with a diversion box
1383which allows the 3/4 inch of runoff to enter the DRA and then diverts the runoff
1399from larger storms around the DRA so that the treatment volume of runoff (3/4
1413inch) continues to be treated in DRA No. 8 and does not mix with and discharge
1429from DRA No. 8 during larger storms.
1436Drainage Basin 1
143930. Drainage Basin 1 as designated on plan sheet 3 of 16 is a landlocked
1454basin which does not discharge to Orange Lake.
146231. In Drainage Basin 1, as in Basin 2, the runoff from the RV sites flows
1478to the individual retention basins which retain the 25-year, 96-hour storm
1489event. The runoff from the road flows to swales. Overflow from the basins and
1503swales flow to the DRAs. Drainage Basin 1 does not discharge during the 100-
1517year, 24-hour or the 25-year, 24-hour storm event, pre-development or post-
1528development
152932. Drainage Basin 1 is designed to retain the 100-year, 24-hour storm,
1541which is an 11 inch storm event.
154833. Drainage Basin 1 is also designed to retain the 25-year, 96-hour storm
1561event.
156234. The 25-year, 96-hour storm event is 143% of the 25-year, 24-hour storm
1575event.
1576WATER QUALITY
1578Design Criteria
158035. The District's design criteria for water quality are set out in
1592Section 40C-42.025, Florida Administrative Code.
159736. The District's retention criteria require that a proposed system have
1608a treatment/pollution abatement volume of 1/2 inch of runoff from the site.
162037. For discharges to an OFW, the pollution abatement volume is increased
1632by fifty percent. Therefore, the system must have the volume to retain 3/4 inch
1646of runoff from the site. Each retention basin retains a minimum of 3/4 inch of
1661runoff from the site.
166538. The District's criteria regarding quantity of water discharged require
1675a larger volume of runoff to be retained than the District's criteria regarding
1688quality. Therefore, the retention system exceeds the District's criteria
1697regarding quality in order to meet the criteria regarding quantity.
170739. The District's retention criteria require that the basin recover the
1718treatment volume within 72 hours. Most of the retention basins retain more than
1731the required treatment volume of 3/4 inch, and most will also recover, or become
1745dry, within 72 hours.
174940. The retention basins are capable of being effectively maintained in
1760that the side slopes and bottom of the basins can easily accommodate mowing
1773equipment.
177441. For erosion control, staked hay bales and silt screens will be
1786utilized on site during construction to prevent the off-site transport of soil
1798material. Following construction, the retention basins will be vegetated with
1808sod to prevent erosion.
181242. The District's criteria require that facilities which receive
1821stormwater runoff from areas with greater than fifty percent of impervious
1832surface shall include a baffle or other device for preventing oil and grease
1845from leaving the system.
184943. DRA Nos. 1, 4, 5, and 8 are equipped with an oil and grease removal
1865device called a baffle. The baffle is an acceptable engineering design for the
1878removal of oil and grease from stormwater in a retention basin.
188944. The facility operation is uncomplicated. If the individual basins did
1900fill due to a storm event greater than the 25-year, 24-hour or the 25-year, 96-
1915hour in the landlocked basin, they would simply overflow into a DRA. No
1928structures are involved to prevent flooding in large storm events.
1938Water Quality Impacts
194145. The individual retention basin at each RV site is considered off-line
1953because it does not discharge in the 25-year, 24-hour storm event.
196446. DRA Nos. 1, 2, 3, 4, 5, 6, and 7 are considered off-line because they
1980do not discharge during the design storm.
198747. DRA No. 8 is considered off-line because of the diversion box which
2000provides for the retention of the treatment volume and diversion of the larger
2013storms.
201448. Off-line retention systems generally show greater pollutant treatment
2023efficiencies than other types of stormwater treatment.
203049. The first 1/2 inch of runoff or the "first flush" of rainfall contains
2044ninety percent of the pollutants from the site.
2052SURFACE WATER
205450. Utilizing information and methodologies generally accepted by experts
2063in the field of water quality, the District analyzed and projected the average
2076surface water and groundwater quality of the discharge from the surface water
2088management system for the proposed project.
209451. No data on runoff concentrations currently exists for RV parks. This
2106analysis was based on a review of existing data on untreated runoff
2118concentrations from three multifamily developments and one highway study.
212752. Because data from studies of multifamily residential and highway
2137projects was used, the District's estimates of the untreated runoff
2147concentrations for this project are conservative in that the actual
2157concentrations are probably less than estimated.
216353. The District's analysis of the average quality of the discharge from
2175the proposed system was also based on projecting the treatment efficiencies
2186associated with the system.
219054. This analysis was done by reviewing data from documented studies
2201previously conducted to ascertain the treatment efficiency of retention methods
2211of stormwater treatment.
221455. Generally, retention of the first 1/2 inch of runoff removes eighty
2226percent of the pollutants.
223056. On this project, a treatment efficiency of ninety-five percent was
2241assumed based on the fact that the system is off-line treatment and a minimum of
22563/4 inch of runoff from the site will be retained in the basins prior to
2271discharge.
227257. The expected average untreated runoff concentrations were then educed
2282by the expected treatment efficiencies to project post-treatment water quality
2292of the discharge from the proposed system.
229958. These numbers were then compared to Chapter 17-302, Florida
2309Administrative Code, water quality standards for Class III water bodies, and
2320ambient water quality in Orange Lake.
232659. Orange Lake is classified as an OFW. Therefore, the proposed project
2338cannot be permitted if it will cause degradation of that water body.
235060. The background data or ambient water quality data for phosphorous and
2362nitrogen was taken from the Orange Lake Biological Report by the Florida Game
2375and Freshwater Fish Commission in 1986. The ambient water quality for the other
2388parameters in Table 2 of District Exhibit 2 was computed using eight years of
2402data from a District monitoring station on Orange Lake.
241161. The projected average concentration for each constituent in the
2421discharge from the system is less than the ambient water quality of Orange Lake.
2435Therefore, the proposed surface water discharge will not violate state water
2446quality standards in waters of the state.
245362. The post-development pollutant loading rates should be equal to or
2464better than the pollutant loading rates from the use of the property as citrus
2478or pastureland because the runoff is being retained on site and treated before
2491being discharged.
2493GROUNDWATER
249463. Groundwater discharges were reviewed by assessing the type of soil
2505below the retention basin and the distance to the water table.
251664. The soil on the site contains some organic matter which is beneficial
2529for treatment purposes.
253265. Based on the borings submitted by Celebrity, the water table, if any,
2545is five feet or more below the bottom of any proposed retention basin.
255866. Runoff in the basin will percolate through the soil.
256867. Nutrients such as nitrogen and phosphorus will be taken up by the
2581vegetation in the bottom of the basins.
258868. Metals will bind to the soil material below the basin.
259969. Oils and greases will be broken down through microbial degradation
2610into nontoxic material.
261370. Groundwater discharges from the proposed system will not violate any
2624applicable state groundwater quality standards.
262971. These standards will be met within the first three feet below the
2642treatment basins.
264472. The standards will also be met by the time the groundwater discharge
2657moves to the edge of the zone of discharge which is at the property boundary.
267273. The discharge from the proposed Celebrity project will not cause or
2684contribute to a violation of state water quality standards in the receiving
2696waters.
2697SINKHOLES
269874. Sinkholes may form on the site.
270575. Sinkholes that form will probably be "cover subsidence" sinkholes.
2715Cover subsidence sinkholes are those in which a void below the surface fills
2728with the soil from above, causing a depression in the ground surface.
274076. There are four relict sinkholes on site. They are cover subsidence
2752sinkholes.
275377. The sinkhole nearest the lake has water in the bottom. Stormwater
2765runoff is directed away from the sinkhole. Any water which enters the sinkhole
2778from the land surface or above will enter from the sky.
278978. The District has proposed criteria for stormwater systems in
2799designated Sensitive Karst Area Basins. Those criteria are that 1) the water in
2812the basins shall be no deeper than ten feet deep; 2) there should be at least
2828three feet of unconsolidated material between the bottom of the basin and the
2841top of the water table; and 3) the basins should be fully vegetated. The
2855District currently applies these criteria as policy.
286279. In this project, the basins are shallow, ranging from ten inches deep
2875at the RV sites to 2 1/2 feet in the DRAs.
288680. The basins have at least three feet of unconsolidated material between
2898the bottom of the basin and the top of the water table. In the soil borings
2914performed by Celebrity, the water table was shown to exist between five and
2927fifty feet below land surface.
293281. The proposed project design meets or exceeds the proposed criteria for
2944Sensitive Karst Area Basins.
294882. The basins will be fully vegetated or sodded with grass.
295983. Lineations or lineaments are solution features which may indicate a
2970fracture of the underlying limestone.
297584. There may be a lineament on the site.
298485. There are other sinkholes in the area.
299286. If a cover subsidence sinkhole develops in an individual retention
3003basin or DRA, stormwater, if any, will seep or percolate through the several
3016feet of soil prior to reaching an aquifer.
302487. Most of the pollutants in the retention basin will meet groundwater
3036quality standards prior to percolation and further treatment in the soil.
3047OPERATION AND MAINTENANCE
305088. Special conditions Nos. 13, 14, and 15 on the permit will require
3063Celebrity to inspect the system monthly for sinkhole development. If a sinkhole
3075develops, Celebrity must notify the District within 48 hours of its discovery.
3087Celebrity must submit a detailed repair plan within 30 days for written approval
3100by the District.
310389. Celebrity proposes to repair any sinkholes that develop by a District-
3115approved method.
311790. Celebrity Resorts, Inc., is a legally established corporation
3126registered in Delaware and owns the subject property.
313491. Celebrity does not intend to subdivide the property but to sell
3146memberships to use the property on a time-share basis.
315592. Celebrity will administratively operate the site by employing a park
3166manager who will remain on the property 24 hours a day. If any problems occur
3181with the basins, either he or his designee will be on site to respond quickly to
3197the situation. The park manager will have a full-time maintenance staff which
3209will operate the park.
321393. Celebrity will financially operate and maintain the proposed system
3223using funds currently raised and in the future by membership fees. Celebrity is
3236a publicly held corporation. Funds raised from the sale of stock, approximately
3248$3,500,000, have paid for legal and administrative fees as well as the land
3263purchase.
326494. Approximately $400,000 has been reserved to operate the facility. It
3276will cost approximately $15,000 per month to run the park.
328795. Memberships will be sold for $300 per year. Part of the membership
3300fees will go toward the general maintenance of the site.
331096. Maintenance of the proposed system will include regular mowing and
3321monthly inspection for sinkholes and repair if necessary.
3329WETLANDS IMPACTS OF THE PROJECT
333497. The property contains waters of the state wetlands and isolated
3345wetlands.
334698. The waters of the state wetlands are those along the shore of Orange
3360Lake.
336199. One isolated wetland exists on site in the sinkhole which is closest
3374to the lake. The sinkhole has standing water in which lemna, or duckweed, is
3388growing. Duckweed is a listed plant species in Section 16.1.1(2) of the
3400Handbook.
3401100. No construction is proposed in either the waters of the state
3413wetlands or the isolated wetland.
3418101. The District criteria require the review of impacts to off-site
3429aquatic and wetland dependent species relative to the functions currently
3439provided by the wetlands to these types of fish and wildlife.
3450102. Since there will be no construction in the wetlands, there will be no
3464impacts to the habitat, abundance and diversity, or food sources of off-site
3476aquatic and wetland dependent species from this proposed project.
3485103. No threatened or endangered aquatic and wetland dependent species
3495were observed on site.
3499104. The proposed permit application will not adversely affect natural
3509resources, fish, or wildlife in a manner which is inconsistent with the District
3522criteria.
3523105. The proposed permit application will not adversely affect
3532hydrologically-related environmental functions in a manner which is inconsistent
3541with the District criteria.
3545CONCLUSIONS OF LAW
3548106. The Division of Administrative Hearings has jurisdiction of the
3558parties to and subject matter of these proceedings. Section 120.57(1), Florida
3569Statutes.
3570107. The initial issue which requires resolution is whether Concerned
3580Citizens of Orange Lake Area has standing to bring this action. The burden is
3594on Citizens to prove standing. Department of Health and Rehabilitative Services
3605v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979). In order to have standing, a
3621party's substantial interests must be determined by the agency action. Section
3632120.57, Florida Statutes.
3635108. Different standards have developed for determining standing of
3644individuals and associations. While most of the standing cases have arisen
3655within the context of rule challenges, the principles are similar in a
3667permitting context. Boca Raton Mausoleum, Inc. v. Department of Banking and
3678Finance, 511 So.2d 1060 (Fla. 1st DCA 1987), and Farmworkers Rights Organization
3690v. Department of Health and Rehabilitative Services, 417 So.2d 753 (Fla. 1st DCA
37031978).
3704109. The seminal cases are Florida Department of Offender Rehabilitation
3714v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215 (Fla.
37291978); Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d
3740478 (Fla. 1st DCA 1978), rev. denied, 415 So.2d 1359 (Fla. 1982), and Alice P.,
3755supra. The standard which can be synthesized from these seminal cases requires
3767a showing of either a real and immediate effect or an injury in fact and a
3783showing that the injury is of a type or nature which the proceeding is designed
3798to protect [zone of interest].
3803110. The Florida Supreme Court next enunciated standing requirements for
3813associations in Florida Home Builders Association v. Department of Labor and
3824Employment Security, 412 So.2d 351 (Fla. 1982). There the court held that an
3837association has standing to bring an action solely as a representative of its
3850members if
38521. A substantial number of its members,
3859although not a majority, are "substantially
3865affected" [will suffer a real and immediate
3872effect or injury in fact];
38772. The subject matter of the action is within
3886the association's general scope of interest
3892and activity; and
38953. The relief is of the type appropriate for
3904the association to receive on behalf of its
3912members.
3913Paraphrased, the test is whether the "association has a legitimate associational
3924interest, on behalf of a substantial number of its members, in the rule's
3937operation." Id. at 354.
3941111. In Village Park Mobile Home Association, Inc., v. State Department of
3953Business Regulation, 506 So.2d 426 (Fla. 1st DCA 1987), rev. denied, 513 So.2d
39661063 (Fla. 1987), the Jerry test was revalidated to the extent that the injury
3980or threat of injury must be both real and immediate, not conjectural or
3993hypothetical.
3994112. The zone of interest part of the test which arose from Agrico played
4008an integral part in Florida Society of Ophthalmology v. State Board of
4020Optometry, 532 So.2d 1279 (Fla. 1st DCA 1988), rev. denied, 542 So.2d 1333 (Fla.
40341989). Ophthalmology is a case arising under Section 120.57(1), Florida
4044Statutes, and the court discusses at great length the zone of interest concept
4057as it relates to both rule challenges and proceedings under Section 120.57(1).
4069The court noted, at page 1284:
4075We initially observe that not everyone
4081having an interest in the outcome of a
4089particular dispute over an agency's
4094interpretation of the law submitted to its
4101charge, or the agency's application of that
4108law in determining the rights and interests
4115of members of government or the public, is
4123entitled to participate as a party in an
4131administrative proceeding to resolve that
4136dispute. Were that not so, each interested
4143citizen could, merely by expressing an
4149interest, participate in the agency's efforts
4155to govern, a result that would unquestionably
4162impede the ability of the agency to function
4170efficiently and inevitably cause an increase
4176in the number of litigated disputes well above
4184the number that administrative and appellate
4190judges are capable of handling. Therefore,
4196the legislature must define and the courts
4203must enforce certain limits on the public's
4210right to participate in administrative
4215proceedings. The concept of standing is
4221nothing more than a selective method for
4228restricting access to the adjudicative
4233process, whether it be administrative or
4239purely judicial, by limiting the proceeding
4245to actual disputes between persons whose
4251rights and interests subject to protection by
4258the statutes involved are immediately and
4264substantially affected. Thus, it has been
4270stated, the "purpose of the law of standing
4278is to protect against improper plaintiffs."
428459 Am.Jur.2d, Parties Section 30 (1987).
4290The court in Ophthalmology, supra, concluded that the petitioners there lacked
4301standing because they failed to show that:
4308their substantial interests will be
4313injuriously affected in any manner that
4319differs from the interests of the public
4326generally . . . .
4331113. Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878
4343(Fla. 1st DCA 1988), a companion rule challenge to the above-cited Ophthalmology
4355case, makes it clear that general interest in the subject matter of a rule is
4370insufficient to support standing because the petitioners' standing must be
4380predicated on a "legally recognized right of sufficient immediacy and reality to
4392support their standing to challenge the validity of the adopted rule."
4403114. Another case, International Jai-Alai Players Association v. Florida
4412Pari-Mutual Commission, 561 So.2d 1224 (Fla. 3rd DCA 1990), sheds some light on
4425the applicable standing criteria in rule challenge proceedings. In the Jai-Alai
4436case, the association filed a rule challenge under Section 120.56(1) to contest
4448the changing of playing dates. Citing Florida Home Builders, supra, the court
4460held that the members of the association had no standing under the Agrico test
4474and that, therefore, the association had no standing on behalf of its members.
4487The central injury asserted by the association on behalf of its members was that
4501the changes in playing dates would aid fronton owners in a labor dispute, by
4515breaking or prolonging an ongoing strike by the association, to the economic
4527detriment of its members. The court found this to be "far too remote and
4541speculative to qualify under the first prong of the Agrico standing test." It
4554further held that the association did not show that the injury which it asserted
4568on behalf of its members is the type of injury which the subject proceedings
4582were designed to protect. This appears to be a further clarification of the
4595zone of interest test discussed above.
4601115. The standing of organizations dedicated to the protection of the
4612environment is discussed at length in In the Matter of Surface Water Management
4625Permit No. 50-01420-S, 515 So.2d 1288 (Fla. 4th DCA 1987). This case reaffirmed
4638the principles that a showing must be made that the organization has a "specific
4652interest" which will be adversely impacted by the agency action. "Adverse
4663impact" was interpreted to include "impending injury," "substantially affected,"
"4672sufficient immediacy and reality," and "injury in fact." Citing to the injury
4684in fact test in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d
4700636 (1972), the court included two standing requirements for organizations,
4710namely that the organization seeking review must be among the injured and that
4723the organization or its members must be injured in a manner greater than merely
4737one of aesthetics and a lessening of environmental values of the area sought to
4751be preserved.
4753116. Another decision that provides guidance in resolving the standing
4763issues of the present case is Grove Isle, Ltd. v. Bayshore Homeowners
4775Association, Inc., 418 So.2d 1046 (Fla. 1st DCA 1982). There, the petitioner
4787sought to challenge a determination that a marina developer did not require a
4800lease of sovereign submerged lands. The nature of the petitioner's interests is
4812described as follows at page 1047 of that decision:
4821Bayshore Homeowner's Association and others
4826are individuals and special interest groups
4832who reside in the residential area across
4839from Grove Isle on the mainland and who use
4848the proposed marina site for recreational
4854activities. They, of course, oppose
4859construction of the marina, arguing that it
4866will interfere with their enjoyment of the
4873area and pollute that part of Biscayne Bay.
4881In affirming the dismissal of the Petition for lack of standing, the court went
4895on to state:
4898We affirm . . . and hold that the
4907petitioners lack standing to challenge DNR's
4913decision that no lease was required.
4919Petitioners have failed to show how their
"4926substantial interests" will be "affected" by
4932the DNR's decision that no lease is required.
4940They, therefore, were not entitled to
4946initiate Section 120.57 proceedings. Section
4951120.52(10); Section 120.57, Florida Statutes
4956(1979). Their petitions for administrative
4961hearing allege that they will be adversely
4968affected by the adverse consequences to
4974Biscayne Bay which will be caused by
4981construction of the marina. These allegations
4987do not show how petitioners are "substantially
4994affected" any more than the general public by
5002DNR's decision not to require a lease for the
5011marina. See U.S. Steel Corp. v. Save Sand
5019Key, Inc., 303 So.2d 9 (Fla. 1974); Chabau v.
5028Dade County, 385 So.2d 129 (Fla. 3d DCA 1980).
5037117. The principles from Grove Isle and its progeny are still followed.
5049In Friends of the Everglades, Inc. v. Board of Trustees of the Internal
5062Improvement Trust Fund and Department of Natural Resources, 13 FALR 1943 (1991),
5074the Governor and Cabinet, sitting as the Board of Trustees of the Internal
5087Improvement Trust Fund, concluded:
5091The remaining interests asserted by the
5097Petitioner as a basis for standing in this
5105case are the interests of its members who
5113live near and use the subject property and
5121the general interest of the Petitioner and
5128its members in protecting, preserving, and
5134conserving environmentally endangered lands.
5138These interests are also an insufficient basis
5145for standing in this case. In order to
5153establish standing in a case of this nature,
5161the Petitioner must allege that its
5167substantial interests will be injuriously
5172affected in some manner that differs from the
5180interests of the general public. The
5186Petitioner has failed to allege any
5192substantial interest different from that of
5198the public in general and it has failed to
5207identify any special injury to its interests
5214different from any injury that might be borne
5222by the rest of the public.
5228118. In applying all of these principles to the evidence presented by
5240Citizens, it can only be concluded that it lacks standing to bring this
5253proceeding. First, it has failed to show that a substantial number of its
5266members are substantially affected by the intended District action. There are
5277allegedly 76 members of the organization, but only three testified at the
5289hearing. Apparently, 26 members wrote letters to the District protesting the
5300entire Celebrity project, but those letters were not placed into evidence.
5311Additionally, even assuming that a substantial number of the members are
5322affected by the permit sought, no showing was made that they are "substantially
5335affected" by the proposed permit. Although the group's alleged goal is to
5347prevent pollution of Orange Lake, this general concern alone is not sufficient
5359to establish standing because the group has not shown how it will be affected
5373differently than the general public.
5378119. Although three members of the group testified that they live from 1
5391to 2 miles from the project site and that they use Orange Lake for recreational
5406and business purposes, this testimony is insufficient to establish a substantial
5417injury in fact to the organization. Finally, no showing was made that the
5430relief sought by the group is of the type which is appropriate for Citizens to
5445receive on behalf of its members.
5451120. Since the hearing has been held and the facts have been found,
5464summary conclusions are made herein regarding the conformance of the project
5475with the applicable statutes and rules. Celebrity must provide reasonable
5485assurances that construction, operation, and maintenance of the MSSW system will
5496meet all applicable District rules and statutes. It must be concluded herein
5508that Celebrity has provided reasonable assurances that all District criteria
5518regarding water quality, water quantity, operation, maintenance, karst sensitive
5527areas, and wetland impacts will be met or exceeded by the MSSW system proposed.
5541RECOMMENDATION
5542Based upon the foregoing Findings of Fact and Conclusions of Law, it is
5555RECOMMENDED that the petition filed by Concerned Citizens of Orange Lake
5566Area be dismissed for lack of standing and that Celebrity Resorts, Inc., be
5579issued a MSSW permit for its system as designed and proposed.
5590DONE and ENTERED this 19th day of July, 1991, in Tallahassee, Florida.
5602______________________________________
5603DIANE K. KIESLING
5606Hearing Officer
5608Division of Administrative Hearings
5612The DeSoto Building
56151230 Apalachee Parkway
5618Tallahassee, FL 32399-1550
5621(904) 488-9675
5623Filed with the Clerk of the Division of
5631Administrative Hearings this 19th
5635day of July, 1991.
5639APPENDIX TO THE RECOMMENDED ORDER
5644The following constitutes my specific rulings pursuant to Section 120.59(2),
5654Florida Statutes, on the proposed findings of fact submitted by the parties in
5667this case.
5669Specific Rulings on Proposed Findings of Fact
5676Submitted by Petitioner,
5679Concerned Citizens of Orange Lake Area
56851. Proposed findings of fact 1-6 are subordinate to the facts actually found in
5699this Recommended Order.
5702Specific Rulings on Proposed Findings of Fact
5709Submitted by Respondent, Celebrity Resorts, Inc.
57151. Proposed findings of fact 1-38 are subordinate to the facts actually found
5728in this Recommended Order.
5732Specific Rulings on Proposed Findings of Fact
5739Submitted by Respondent, St. Johns River
5745Water Management District
57481. Each of the following proposed findings of fact is adopted in substance as
5762modified in the Recommended Order. The number in parentheses is the Finding of
5775Fact which so adopts the proposed finding of fact: 1&2(1); 3-7(4-7); 8-20(8-
578720); 21(2); 22-31(21-30); 32(16); and 33-107(31-105).
5793COPIES FURNISHED:
5795Crawford Solomon
5797Qualified Representative
5799Concerned Citizens of
5802Orange Lake
5804Post Office Box 481
5808Citra, FL 32681
5811William L. Townsend, Jr.
5815Attorney at Law
5818Post Office Box 250
5822Palatka, FL 32178-0250
5825Nancy B. Barnard
5828Attorney at Law
5831St. Johns River Water
5835Management District
5837Post Office Box 1429
5841Palatka, FL 32178-1429
5844Henry Dean, Executive Director
5848St. Johns River Water Management District
5854Post Office Box 1429
5858Palatka, FL 32178-1429
5861NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
5867All parties have the right to submit written exceptions to this Recommended
5879Order. All agencies allow each party at least 10 days in which to submit
5893written exceptions. Some agencies allow a larger period within which to submit
5905written exceptions. You should contact the agency that will issue the final
5917order in this case concerning agency rules on the deadline for filing exceptions
5930to this Recommended Order. Any exceptions to this Recommended Order should be
5942filed with the agency that will issue the final order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
- Date: 06/10/1992
- Proceedings: Final Order filed.
- Date: 07/12/1991
- Proceedings: Celebrity Village Resorts, Inc`s Proposed Recommended Order filed. (from William L. Townsend, Jr.)
- Date: 07/12/1991
- Proceedings: Proposed Recommended Order of St. Johns River Water Management District filed. (From Nancy Bernard)
- Date: 07/09/1991
- Proceedings: Concerned Citizens of Orange Lake Area et al, Proposed Recommended Order filed. (from Marilyn Hearing)
- Date: 07/01/1991
- Proceedings: Final Hearing Held July 1-2, 1991; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk`s Office case file.
- Date: 06/26/1991
- Proceedings: Letter to DKK from Marilyn G. Nehring (re: Scheduling conflicts) filed.
- Date: 06/26/1991
- Proceedings: Respondent`s Notice of Amendment to Prehearing Stipulation filed. (from Nancy B. Barnard)
- Date: 06/19/1991
- Proceedings: (Petitioner) Prehearing Stipulation filed. (From Nancey B. Bernard et al)
- Date: 06/17/1991
- Proceedings: Interrogatories; Notice of Response to St. Johns River Water Management District`s Interrogatories to Petitioners filed. (from Marilyn Nehring)
- Date: 05/21/1991
- Proceedings: Notice of Ex Parte Communication sent out.
- Date: 05/20/1991
- Proceedings: Concerned Citizens of Orange Lake Area Interrogatories to the Department of Environmental Regulations & St Johns Water Management District filed.
- Date: 05/16/1991
- Proceedings: (Respondent) Notice of Taking Depositions filed.
- Date: 05/14/1991
- Proceedings: Notice of Hearing sent out. (hearing set for July 1-2, 1991; 11:00am; Ocala).
- Date: 05/14/1991
- Proceedings: Order of Prehearing Instructions sent out. (Hearing set for 7/1-2/91.
- Date: 05/13/1991
- Proceedings: (Petitioner) Response to Initial Order filed. (From Jennifer L. Burdick)
- Date: 05/10/1991
- Proceedings: Notice of Appearance filed. (From William L. Townsend, Jr.)
- Date: 05/03/1991
- Proceedings: Order Denying Consolidation (for SJRWMD) sent out.
- Date: 05/02/1991
- Proceedings: Initial Order issued.
- Date: 05/01/1991
- Proceedings: Agency referral letter; Notice; Notice of Transcription; Motion to Expedite; Request to Produce; Notice of Service of St. Johns River Water Management District`s First Interrogatories to Petitioner; Motion to Consolidate (91-1383 & 91-2694) filed.
- Date: 05/01/1991
- Proceedings: Cover letter from K. Cushman; Request for Administrative Hearing, letter form; Technical Staff Report filed.