m

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROOKSVILLE ASSOCIATES, )

)

Petitioner, )

)

v. ) DOAH CASE NO. 92-7064

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT and )

HORNE PROPERTIES, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on May 13-14, 1993, in Brooksville, Florida, before Don W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: David Smolker, Esquire

2700 Landmark Centre

401 East Jackson Street Tampa, Florida 33602

FOR RESPONDENT Rodney S. Fields, Jr., Esquire HORNE PROPERTIES: 202 Madison Street

Tampa, Florida 33602

FOR RESPONDENT SOUTHWEST FLORIDA

WATER MANAGEMENT Richard Tschantz, Esquire DISTRICT: Mark F. Lapp, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34609 STATEMENT OF THE ISSUE

The issue is whether the application of Respondent, HORNE PROPERTIES, INC. ("HORNE"), for Surface Water Management Permit No. 400317.02, should be approved.

PRELIMINARY STATEMENT

On August 7, 1992, HORNE filed an application for Management and Storage of Surface Water ("MSSW") Permit No. 400317.02 (the "Application"), with the SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT (the "DISTRICT"). The Application

sought the DISTRICT's approval of an expansion of the surface water management

system of an existing Publix shopping plaza, to include a K-Mart store and an additional parking area on adjacent property (the "Project").

On November 3, 1992, the DISTRICT issued a Notice of Final Agency Action approving the construction of the project. On November 16, 1992, BROOKSVILLE ASSOCIATES (the "ASSOCIATES") filed a Petition to Initiate Formal Administrative Proceedings contesting the issuance of HORNE's MSSW permit.

Shortly before the originally scheduled final hearing, the DISTRICT filed a motion to continue, based on newly discovered information which required revisions to the application. Thereafter, HORNE revised the design of the project to address the DISTRICT's concerns. On April 1, 1993, the DISTRICT sent notice to the parties that the design revisions made by HORNE were acceptable to the DISTRICT and it was again in a position to recommend issuance of the permit. Subsequently, minor additional changes were made in the design of the Project.

At the formal administrative hearing, HORNE presented the testimony of three witnesses and four exhibits. The DISTRICT presented testimony of four witnesses and 11 exhibits. The ASSOCIATES presented the testimony of one witness and seven exhibits.

A transcript of the final hearing was filed on May 24, 1993. Proposed recommended orders of the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. The Parties and the Property.

   
   

   1. The Respondent, HORNE, owns or has options to purchase approximately

      24.35 acres of real property at the southwest corner of U.S. Highway 41 and State Road 50 Bypass in Brooksville, Florida.

      
      

   2. The Petitioner, the ASSOCIATES, owns approximately 67.5 acres of real property to the south and downstream from the HORNE property. The ASSOCIATES' property is presently undeveloped.

      
      

   3. The HORNE property contains an existing Publix shopping plaza, a mobile home sales office and vacant lands. The Publix plaza was previously permitted by the DISTRICT before it was constructed.

      
      

2. The Surface Water Permit Application

   
   

   1. On August 7, 1992, HORNE submitted its application for surface water permit No. 400317.02. The application sought approval to construct a surface water management system for a proposed new K-Mart store on HORNE's property.

      
      

   2. On November 3, 1992, the DISTRICT issued notice of final agency action approving issuance of permit No. 400317.02 to HORNE.

      
      

   3. The day before the original final hearing in this matter scheduled for March 1993, new information from a study called the Peck Sink Watershed Study came to light which rendered the project as then designed unpermittable. This information resulted in the surface water management system being redesigned.

   4. On April 1, 1993, the DISTRICT notified all of the parties that the redesigned surface water management met District rule criteria. This resulted in issuance of what became known as the April 1 submittal.

      
      

   5. On May 12, 1993, in response to concerns raised by the ASSOCIATES at depositions on May 10, 1993, HORNE produced the May 12 submittal and provided it to all parties on that same date.

      
      

   6. The changes in design reflected on the May 12 submittal related to lowering the pond bottoms one foot below the orifices and changing the contour lines on the outside of Pond 5A.

      
      

   7. On May 13, 1993, further minor changes were made to the permit materials. Specifically, the changes were: reflecting on the engineering worksheets the lowering of the pond bottoms accomplished on the May 12 submittal, correction of the contour line on the outside of Pond 5A and showing the amount of additional fill into the 100-year floodplain caused by the addition of the contour line to the outside of Pond 5A.

      
      

   8. In reviewing HORNE's application, the District applied the standards and criteria set forth in Chapter 40D-4, Florida Administrative Code, and the Basis of Review for Surface Water Management Permit Applications.

      
      

3. Compliance with DISTRICT Permitting Criteria

   
   

   1. Water Quantity

      
      

      1. The main two areas considered by the DISTRICT in assessing water quantity in a closed basin are: attenuating the peak rate of discharge for the 25

         runoff for the 100

         
         

      2. The peak rate of runoff for this project for the 25

         (2) cubic feet per second (cfs) less in the post-developed condition than in the pre-developed condition, as shown on the April 1 submittal. No changes were made between the April 1 and May 12 or 13 submittals relating to the peak rate of discharge.

         
         

      3. The difference in the volume of runoff between the pre-developed and post-developed condition during the 100-year storm is being retained on site, as shown on the April 1 submittal. Therefore, DISTRICT rule criteria for the peak rate and volume of runoff were met on the April 1 submittal.

         
         

      4. Lowering the bottoms of the detention ponds on the May 12 and 13 submittals resulted in additional post

         100

         system, as redesigned to retain this additional 100-year volume, exceeds the DISTRICT's 100

         
         

   2. Floodplain Encroachment

      
      

      1. Under the DISTRICT's floodplain encroachment standards, any fill within the 100

         out an equivalent volume of fill elsewhere on the property. HORNE's application satisfies the DISTRICT's floodplain standards. HORNE is filling 1.59 acre feet of the floodplain and creating 1.75 acre feet of compensation. The floodplain compensation will be above the seasonal high water table, as required by Section

         3.2.1.4 of the DISTRICT's Basis of Review. The original, existing seasonal high water table will be lowered as a result of the excavation so that the entire floodplain compensation area will be above the seasonal high water table.

         
         

   3. Water Quality

      
      

      1. A wet detention system as proposed by HORNE is an acceptable means under the DISTRICT's rules of treating runoff for water quality purposes. The bottoms of the ponds, as shown on the May 12 submittal, are all at least one foot below the orifice elevations, as required by the Basis of Review. Thus, the project met all relevant DISTRICT water quality requirements as of the May

         12 submittal.

         
         

   4. Operation and Maintenance

      
      

      1. DISTRICT rules require that reasonable assurances be provided that the surface water management system can be effectively operated and maintained. HORNE will be the operation and maintenance entity for this surface water management system.

         
         

      2. The DISTRICT's main concerns at the time of permit review are that the design of the surface water management system not be an exotic design, that the design insure that littoral zones can be established, that the system orifice can be cleaned, that the overall system will be stable and that there is a viable operation and maintenance entity. HORNE's project can be effectively operated and maintained.

         
         

   5. Remaining District Rule Criteria

   
   

   1. As stipulated to by the parties that the project will not cause adverse impacts to wetlands and will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it in Chapter 40D

      
      

   2. Additionally, the proof establishes that the project will not cause adverse impacts on surface and groundwater levels and flows will not adversely affect the public health and safety; is consistent with the requirements of other public agencies; will not otherwise be harmful to the water resources within the District; will not interfere with the legal rights of others as defined in Rule 17

      
      

4. Objections Raised by the ASSOCIATES at the Hearing

1. Pond Slopes and Operation and Maintenance

   
   

   1. Contrary to the assertion that the pond slopes will not be stable and cannot be effectively operated and maintained, the pond side slopes at this project are going to be constructed out of a heavy clay type of soil. Sodded side slopes of 1:1, as proposed for three of the ponds, can be stabilized and effectively operated and maintained. Although there is no DISTRICT requirement that sodded side slopes be mowed, so on these slopes could, if necessary, be cut. In the event the side slopes were to erode, easy repair is possible.

      
      

   2. All of the ponds except one side of one pond have areas at least 20 feet wide and slopes no steeper than 4:1 where maintenance can be performed. With regard to the pond that does not have this characteristic, equipment can enter and perform necessary maintenance.

2. Water Quality Treatment

   
   

   1. Concerns that at least a portion of the bottoms of the ponds need to be below the seasonal high water table and that circulation of the ponds needs to be maximized in order to meet water quality treatment criteria are misplaced since there is no requirement that the pond bottoms be below the seasonal high water table in wet detention systems such as the one at issue in this case. Further, the entire bottoms of the ponds are littoral zone and meet DISTRICT rule requirements that 35 per cent of the pond be littoral zone, concentrated at the outfall. Additionally, the ponds at issue maximize circulation through the location of points of inflow and outflow.

      
      

3. Floodplain Mitigation

   
   

   1. Concerns that volume in the floodplain mitigation area is not available because of problems with the seasonal high water table are also misplaced. Specifically, the floodplain area encroachment requiring mitigation relates to Pond 5A. There is more than enough volume within the area which will be excavated to compensate for the area where the fill will be deposited. The seasonal high water table will be at or below the floodplain mitigation area after the required excavation takes place.

      
      

   2. Although the seasonal high water table will be lowered where the excavation or cut is made and later raised where the fill is placed, no adverse effects on the water table will result from such lowering and raising of the water table.

      
      

4. Volume In Pond 5A

   
   

   1. Allegations that the May 12 and 13 submittals reflect that Pond 5A has less volume available than the modeling calculations contemplate are incorrect. The changes in the contour lines of Pond 5A on the May 12 and 13 submittals from what was shown on the April 1 submittal occurred on the outside of the pond.

      The volume on the inside of the pond was not reduced

      actually increased when the pond bottom was lowered for water quality purposes.

      
      

   2. In determining how much volume a pond is to have when it is constructed, the computer modeling figures take precedence over the scaled plan drawings. In this case, the computer modeling figures never changed after the April 1 submittal.

      
      

   3. HORNE submitted a computer model that calculated the volume of Pond 5A. The output data clearly reflects that the top of the bank was 82 feet.

      
      

5. Publix's Status as an Existing Site

   
   

   1. Assertions that the Publix site should have been considered in its

      pre-developed state since there will be approximately one acre foot of volume of runoff, or possibly less, leaving the site without retention are without validity. The Publix plaza was permitted by the DISTRICT in 1985 and constructed in 1986. The amount of peak flow discharge and overall discharge is currently authorized by a valid MSSW permit.

      
      

   2. When the DISTRICT reviews a permit application, all existing permitted surface water management systems must be accepted in their present state. There

      is no authority in the DISTRICT's rules to consider an existing permitted site in its pre

      
      

   3. Even if the Publix site is considered in its pre

      project has only .02 of an acre foot more volume of runoff in its post-developed condition than in the pre

      
      

6. Storage of 100-Year Volume

1. Allegations that the amount of 100-year volume being retained on site in the ponds has been incorrectly calculated by the DISTRICT and HORNE are also invalid. The DISTRICT's rules require that the difference between the pre- and post-development volume for the 100-year storm be retained on site. In the ponds which are the subject of this proceeding, the 100-year volume is retained in the ponds below the orifice. This volume cannot leave the site through the orifice; it can only leave the site by percolation into the ground or evaporation into the air.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. See Section 120.57(1), Florida Statutes.

   
   

3. Chapter 373, Part IV, Florida Statutes, and the District's surface water management rules, Chapter 40D-4, Florida Administrative Code, which includes the DISTRICT's Basis of Review, govern the issuance of the permit which is the subject of this proceeding.

   
   

4. Rule 40D-4.301(1), Florida Administrative Code, provides that, in order to obtain a surface water permit, an applicant must give reasonable assurances that the surface water management system satisfies various general conditions.

   
   

5. Under Rule 40D-4.301(2), Florida Administrative Code, the standards and criteria contained in the Basis of Review apply to the design and performance of surface water management systems and provide the reasonable assurances required by Rule 40D-4.301(1), Florida Administrative Code.

   
   

   I. Compliance With Pertinent Permitting Criteria

   
   

6. The proof establishes that the project will comply with all pertinent statutory and rule criteria of Chapter 373, Part IV, Florida Statutes, Chapter 40D-4, Florida Administrative Code and the Basis of Review.

   
   

7. The DISTRICT's rules require that an applicant proposing to construct in a closed basin demonstrate that the peak rate of runoff for the 25-year storm not cause adverse offsite impacts. DISTRICT rule criteria for the peak rate of runoff have been met since the rate of runoff will be less in the post

   condition than in the pre

   
   

8. The DISTRICT's rules require that an applicant proposing to construct in a closed basin demonstrate that the total post-development volume leaving the site be no more than the total pre development volume leaving the site for the design 100-year storm.

9. DISTRICT rule criteria for the 100-year volume of runoff have been met since the volume of runoff will be less in the post-developed condition than in the pre-developed condition.

   
   

10. The DISTRICT's rules mandate that there be no net encroachment into the floodplain, up to that encompassed by the 100-year event, which will adversely affect either conveyance, storage, water quality or adjacent lands. DISTRICT rules further state that any required compensating storage must be equivalently provided between the seasonal high water level and the 100-year flood level. DISTRICT rule criteria for encroachment into the 100-year floodplain have been met since there is more acre feet of compensating storage than there is impact area, and all of the compensating storage will be above the seasonal high water level.

    
    

11. There is no prohibition in the DISTRICT's rules on lowering the seasonal high water table to provide storage for the 100-year rainfall event so long as there are no adverse effects. In this case there will be no such adverse effects.

    
    

12. The DISTRICT's rules require that an applicant utilizing a wet detention system for water quality treatment treat the first one inch of runoff from the contributing area; include a minimum of 35 per cent littoral zone, concentrated at the outfall; and discharge the treated water in no less than 120 hours with no more than one-half the total volume being discharged in the first

    60 hours.

    
    

13. The bottom elevation of ponds in wet detention systems must be at least one foot below the control elevation. There is no rule requirement that the pond bottoms in a wet detention system be below the seasonal high water table.

    
    

14. DISTRICT rule criteria for water quality treatment have been met. and reasonable assurances have been provided that the surface water management system can be effectively operated and maintained. (Rule 40D-4.301(1)(g), Florida Administrative Code). The concerns of Petitioner regarding pond side slopes are unpersuasive. The DISTRICT's rules do not prohibit side slopes of 1:1.

    
    

15. DISTRICT rule criteria for operation and maintenance have been met as well as all other applicable DISTRICT rule criteria set out in Rule 40D- 4.301(1), Florida Administrative Code, have been met.

RECOMMENDATION

Based on the foregoing, it is recommended that the Southwest Florida Water Management District enter a final order granting HORNE's Application for Surface Water Management Permit No. 400317.02.

RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1993.

APPENDIX

The following constitutes my rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties

Proposed findings submitted by Petitioners

(Petitioner's proposed findings begin at paragraph number 13.) 13.-19. Accepted.

20.-30. Rejected, unnecessary.

31.-44. Rejected, subordinate to hearing officer findings. 45.-47. Accepted.

48.-77. Rejected, subordinate to hearing officer findings. 78.-79. Rejected, recitation of documents.

80.-84. Rejected, weight of the evidence. 85.-88. Rejected, unnecessary.

89.-93. Rejected, weight of the evidence. 94.-95. Rejected, unnecessary.

96. Accepted.

97.-98. Rejected, subordinate, weight of the evidence. 99.-100. Rejected, unnecessary.

101.-126. Rejected, subordinate.

127. Accepted.

128.-129. Rejected, unnecessary.

130.-135. Rejected, argument.

136.-144. Rejected, weight of the evidence. Respondents Joint Proposed Findings.

1.-56. Accepted, though not verbatim. 58.-59. Rejected, unnecessary.

COPIES FURNISHED:

David Smolker, Esquire

Honigman, Miller, Schwartz & Cohn 2700 Landmark Centre

401 East Jackson Street Tampa, Florida 33602

Rodney S. Fields, Jr., Esquire Blain & Cone, P.A.

202 Madison Street Tampa, Florida 33602

Richard Tschantz, Esquire Mark F. Lapp, Esquire

Southwest Florida Water Management District 2379 Broad Street

Brooksville, Florida 34609

Peter G. Hubbell Executive Director

Southwest Florida Water Management District 2379 Broad Street

Brooksville, FL 34609-6899

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.

Docket for Case No: 92-007064

Orders for Case No: 92-007064