STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS A. DRISCOLL, )

)

Petitioner, )

)

vs. ) Case No. 01-2471

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT; ENGLE )

HOMES, INC.; and LAKE )

BERNADETTE, INC., )

)

Respondents. )

______ )

RECOMMENDED ORDER

Pursuant to notice, the final hearing in the above-styled case was held by video teleconference on September 20, 2001, in Tampa and Tallahassee, Florida, before Charles A. Stampelos, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Thomas A. Driscoll, pro se

35716 Welby Court

Zephyrhills, Florida 33541

For Respondent Southwest Florida Water Management District: Margaret M. Lytle, Esquire

Southwest Florida Water Management District 2379 Broad Street

Brooksville, Florida 34604-6899

For Respondent Engle Homes, Inc., and Lake Bernadette, Inc.:

Thomas P. McAlvanah, Esquire Thomas P. McAlvanah, P.A.

5739 Gall Boulevard

Zephyrhills, Florida 33541 STATEMENT OF THE ISSUES

The ultimate legal and factual issue in this matter is whether Engle Homes, Inc., and Lake Bernadette, Inc. (Permittees), have provided the Southwest Florida Water Management District (District) with reasonable assurances that the activities they propose to conduct pursuant to Management and Storage of Surface Water (MSSW) General Construction Permit No. 49005837.017 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, 40D-4.302, and 40D- 40.302, Florida Administrative Code.

In particular, the issues of fact to be litigated are whether the Project will cause adverse water quality impacts to receiving waters and adjacent lands; whether the Project will cause adverse flooding of on-site or off-site property; whether the Project will cause impacts to existing surface water storage and conveyance capabilities; and whether the Project will adversely affect the property of others.

PRELIMINARY STATEMENT

On April 5, 2001, the District issued a Notice of Final Agency Action for Approval of the Permit authorizing Engle

Homes, Inc., and Lake Bernadette, Inc., to proceed with modification of a surface water management system to correct flooding and lot grading problems in the Timber Creek 2 Subdivision and on an adjacent property in Pasco County, Florida (the Project).

On May 1, 2001, Petitioner, Thomas A. Driscoll (Driscoll) filed a timely Petition and requested an administrative hearing. On May 31, 2001, the District dismissed the Petition with leave to amend for failure to comply with Rule 28-106.201(2), Florida Administrative Code. Driscoll filed an Amended Petition on

June 14, 2001, and the District referred this matter to the Division of Administrative Hearings (Division) on June 20, 2001. The parties entered into a Pre-Hearing Stipulation on

September 11, 2001.

At the final hearing, the Permittees presented the testimony of Paul E. Skidmore, P.E., the engineer who prepared the Permit application. Engle Exhibit Number 1 was admitted into evidence. The District presented the testimony of Kenneth

1. Barrett, P.E., the Professional Engineer who reviewed the Permit application, and Frank Gargano, a field technician familiar with the Project area. District Exhibit Numbers 1, 3, 4, and 5 were admitted into evidence. The undersigned took official recognition of District Exhibit Number 2, the June 2001 District "Information Manual."

   Driscoll presented the testimony of Don Geiger and

   
   

   John Fryza, residents of the Subdivision, and Serge Gootan, the President of Engle Homes Gulfcoast Division. Driscoll also testified. Driscoll's Exhibit Numbers 1-6 were admitted into evidence.

   The parties were given ten (10) days from the filing of the transcript in which to file proposed recommended orders and argument. The final hearing Transcript and the exhibits were filed with the Division on October 11, 2001. Respondents' Joint Proposed Recommended Order and Joint Argument were timely filed on October 19, 2001. Driscoll did not file a proposed recommended order or a written argument.

   FINDINGS OF FACT

   
   

   The Parties

   
   

   1. Engle Homes, Inc., and Lake Bernadette, Inc., are corporations licensed to operate in the State of Florida.

   2. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code.

   3. Driscoll resides at 35716 Welby Court, Zephyrhills, Florida 33541, Lot 14, within the Timber Creek 2 Subdivision (Subdivision). Driscoll requested this hearing to show the

      District that there is a drainage problem on Lots 13 and 14, and the adjacent Geiger property to the south, which should be fixed at this time and as part of the Project. Driscoll wants "Engle Homes to propose a new solution to fix the entire Welby Court Geiger property problem," i.e., from Lots 4 through 14, and not a piecemeal solution as proposed in the Permit modification.

      The Subdivision

      
      

   4. Engle Homes, Inc., and Lake Bernadette, Inc., developed the Timber Creek 2 Subdivision. Lots 15 through 25 run east to west and are north of Welby Court. Lots 15 and 16 are located north of the cul-de-sac, on the eastern portion of Welby Court. Lots 3 through 14 run west to east, south of Welby Court. Lots

      13 and 14 are south of the cul-de-sac on the eastern portion of Welby Court and are across the street and the cul-de-sac from Lots 16 and 15, respectively. Residences exist on Lots 5, and 7 through 14. Driscoll owns Lot 14, a corner lot, which is the southeastern most lot of the Subdivision.

   5. Don Geiger (Geiger) owns the land (approximately five acres) south of the property lines of Subdivision Lots 5 through

1. Geiger's northern driveway, essentially a dirt road, runs parallel to Lots 5 through 14.

   1. Subsequent to the original construction activity involving the Subdivision, the developer realized that there was an "existing depression" (referenced on Engle Exhibit number 1),

      south of Lots 7 and 8, and on Geiger's property. Geiger complained to the District about standing water in this area. This depression area is approximately 90 feet long and 30 feet wide which needed to be "drained off" according to Geiger.

   2. The depressed area on Geiger's property was most likely caused when Lots 7 through 14 were graded and sodded, which raised the "lots up a few inches" above Geiger's driveway/property. Water is trapped during a storm event between the back yards and the depressed area. As a result, the southern end of the back yards, particularly Lots 7 and 8, and the driveway remain constantly wet.

      The Project

      
      

   3. On January 16, 2001, Engle Homes, Inc., and Lake Bernadette, Inc., filed MSSW Permit Application No. 49005837.017 with the District, to address the problems with the rear lot grading and the adjacent property. The actual Project area for the permit modification1 includes the southern portions of Lots 4 through 9 and south of the property lot line including Geiger's property. See Finding of Fact 5. The modified permit does not address the drainage area including the back yards of Lot 13 and Driscoll's Lot 14, and the other portion of Geiger's property/driveway to the south.

   4. On April 5, 2001, the District issued MSSW Permit No. 49005837.017 to Engle Homes, Inc., and Lake Bernadette,

      Inc., under the provisions of Chapter 373, Florida Statutes, and Chapter 40D-40, Florida Administrative Code, for the modification of a surface water management system to serve the Project area.

   5. The proposed Project will involve the construction of a concrete inlet box with a safety grate, storm sewers, and grass swales. Specifically, the project is intended to solve the drainage problems associated with the "existing depression" south of the boundary line for Lots 7 and 8 on Geiger's property (although Lots 4 through 9 ("area 1") are included within the Project area), and the back yards of Lots 7 and 8.

   6. A catch basin is proposed to be located south and on the lot line between Lots 8 and 9, which is expected to drain off the water in the depression area to the modified surface water management system. The inlet box will be placed in the corner between Lots 8 and 9. The collected water in the inlet box will be routed underground through a series of 18-inch storm sewer pipe straight north through a drainage easement between Lots 8 and 9 to Welby Court. The underground pipe ties into an existing pipe in front of Lot 9 on the street, then runs east along the Welby Court right-of-way and then north between Lots

      19 and 20, and eventually north into a large permitted retention pond, located to the north of the Subdivision which will handle the stormwater.

      Driscoll's Alleged Drainage Problem

      
      

   7. There is another distinct drainage area, i.e., "area 2," which includes Geiger's property and the southern portions of Lots 13 and 14, where water drains from south to north into a roadside ditch to Geiger Cemetery Road ("area 3"), which runs south to north and east of Lots 14 and 15.

   8. During a September 2001 tropical storm, there was standing water on Geiger's driveway, directly south of Lots 13 and 14, which was present for more than 3 days. This was referred to by Mr. Barrett as a "small drainage problem that could easily be corrected." On the other hand, Geiger says that there is standing water on his driveway, south of Lots 13 and 14, "all the time." This caused Geiger to move his driveway "50 or 60 feet" south.

   9. According to Geiger, the berm, which runs across Lots

      
      

      10 through 14, should be lowered and the backyards reconfigured.

      
      

      But this would be quite disturbing to the neighbors. Therefore, Geiger recommends the placement of drains south of Lots 13 and 14, which would direct the water out to the ditch at Geiger Cemetery Road and away from Driscoll's Lot 14. The modified Permit is not intended to solve this problem, although Driscoll wants this problem fixed.

   10. It is not necessary to resolve Driscoll's issue regarding whether there is a drainage problem in and around

       Driscoll's lot. The two drainage areas 1 and 2 discussed herein are not connected, although they are close in proximity. The solution to the first problem has no impact on the second, and there is no cited statutory or rule requirement that both issues must be addressed in this Permit application. This is Driscoll's quandary.

       Compliance with Rules 40D-4.301 and 40D-4.302, Florida Administrative Code

       
       

   11. The Project will not impact wetlands or surface waters.

   12. The Project will not adversely impact the value of functions provided to fish and wildlife, and listed species, including aquatic and wetland-dependent species, by wetlands or other surface waters and other water-related resources.

   13. The Project will not adversely impact the quality of receiving waters such that the water quality standards will be violated.

   14. The Project will not cause adverse secondary impacts to the water resources.

   15. The Project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section 373.042, Florida Statutes.

   16. The Project will not cause adverse impacts to a work of the District.

   17. The Project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed.

   18. The Project will be conducted by an entity with financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued.

   19. The Project will comply with any applicable special basin or geographic area criteria established pursuant to Chapter 40D, Florida Administrative Code, by the District.

   20. The Project will not adversely affect the public health, safety, or welfare.

   21. The Project will not adversely impact the conservation of fish and wildlife, including endangered or threatened species, or their habitats.

   22. The Project will not adversely affect navigation.

       
       

   23. The Project will not cause harmful erosion or shoaling.

   24. The Project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the Project.

   25. The Project will not adversely affect significant historical and archeological resources.

   26. The Project will not cause unacceptable cumulative impacts upon wetlands and other surface waters.

   27. The Project area is less than 100 acres.

       
       

   28. The Project does not require dredging or filling of wetlands, or construction of boat slips.

   29. The Project is not contrary to the public interest.

       
       

   30. The Project will not cause adverse water quantity impacts to receiving waters and adjacent lands, and will not adversely affect or impact the property of others, including Driscoll's property, Lot 14. "Area 1," between Lots 4 and 9, is a separate drainage area, and the water from this area does not drain to Lot 14.

   31. Driscoll's property is not within the Project area, and the Project was not intended to resolve his alleged drainage problem.

   32. The Project will not cause adverse flooding to on-site or off-site property.

   33. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Rather, the project is expected to improve the conveyance of water and drainage for "area 1" and the Project area.

       CONCLUSIONS OF LAW

       
       

   34. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these

proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

40. Rules 40D-4.301, 40D-4.302, and 40D-40.302, Florida

Administrative Code, are applicable to this proceeding.

1. If a regulatory agency gives notice of intent to grant a permit application, the applicant has the initial burden at a final administrative hearing of going forward with the presentation of a prima facie case of the applicant's entitlement to a permit. Once a prima facie case is made, the burden of going forward shifts to the petitioner, here Driscoll, to present competent substantial evidence, consistent with the allegations of the petition, that the applicant is not entitled to the permit. Unless the petitioner presents "contrary evidence of equivalent quality" to that presented by the applicant and agency, the permit must be approved. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 789-790 (Fla. 1st DCA 1981).

2. The issuance of a permit must be based solely on compliance with applicable permit criteria. Council of Lower Keys v. Toppino, 429 So. 2d 67 (Fla. 3d DCA 1983).

3. Engle Homes, Inc., and Lake Bernadette, Inc., met the initial burden of proof in presenting a prima facie case that the conditions for issuance of MSSW Permit No. 49005837.017,

   under Rules 40D-4.301, 40D-4.302, and 40D-40.302, Florida Administrative Code, have been met.

4. Driscoll did not present "contrary evidence of equivalent quality" to that presented by Respondents to support Driscoll's position that Engle Homes, Inc., and Lake Bernadette, Inc., were not entitled to the Permit. To the extent that Driscoll presented such evidence, it was not as persuasive as that presented by Respondents.

5. Engle Homes, Inc., and Lake Bernadette, Inc., have provided the District with reasonable assurances that the conditions for issuance of MSSW Permit No. 49005837.017, under Rules 40D-4.301, 40D-4.302, and 40D-40.302, Florida Administrative Code, have been met.

RECOMMENDATION

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

RECOMMENDED that the Southwest Florida Water Management District enter a final order issuing Management and Storage of Surface Water General Construction Permit No. 49005837.017.

DONE AND ENTERED this 24th day of October, 2001, in Tallahassee, Leon County, Florida.

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2001.

ENDNOTE

1/ The parties stipulated that the Permit issued April 5, 2001, "is for the construction of a new surface water management system . . . ." However, the weight of the evidence indicates that the Permit is for a modification of an existing surface water management system.

COPIES FURNISHED:

E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street

Brooksville, Florida 34604-6899

Thomas A. Driscoll 35716 Welby Court

Zephyrhills, Florida 33541

Margaret M. Lytle, Esquire

Southwest Florida Water Management District 2379 Broad Street

Brooksville, Florida 34604-6899

Thomas P. McAlvanah, Esquire Thomas P. McAlvanah, P.A.

5739 Gall Boulevard

Zephyrhills, Florida 33541

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 01-002471

Orders for Case No: 01-002471