The Issue The issue in this case is whether an Application to the South Florida Water Management District for Authority to Utilize Works or Land of the District filed by Respondents, Joint Facilities Board of River Oaks H.O.A. and Little Oaks H.O.A., should be approved by the South Florida Water Management District.
Findings Of Fact Petitioners, Arthur Pivirotto and Ann H. Pivirotto presented no evidence in this matter. Petitioners have, therefore, failed to meet their burden of proof that Right of Way Occupancy Permit Application Number 94-1005-2 should not be granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a Final Order in case number 96-0870 dismissing the Petition for Formal Proceedings Per 40E-1.521 Fl. Admin. Code and 120.57 F.S. DONE and ENTERED this 2nd day of August, 1996, in Tallahassee Florida. LARRY SART1N, 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 2nd day of August, 1996. COPIES FURNISHED: William A. Fleck, Esquire 6650 West Indiantown Road Suite 200 Jupiter, Florida 33458 Charles H. Burns, Esquire 1080 East Indiantown Road Jupiter, Florida 33477 Scott Allen Glazier, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Donald S. Fradley, Esquire 27 Pennock Lane Jupiter, Florida 33458 Alan J. Cooper, Esquire Tequesta Corporate Center 250 Tequesta Drive, Suite 200 Tequesta, Florida 33469 Samuel E. Poole, III, Executive Director Department of Environmental Protection South Water Management District Post Office Box 24680 West Palm Beach, Florida 33146
Findings Of Fact Respondent GL Homes filed a permit application with Respondent District for Conceptual Approval of a surface water management system. On August 28, 1996, Respondent District mailed a copy of its staff report and notice of rights to Respondent GL Homes. The staff report was the staff's summary and recommendation and Respondent District's notice of proposed agency action. The staff report indicated, among other things, that it was a "draft" and that the last date for action by the Governing Board of Respondent District was September 12, 1996. On or about August 29, 1996, Respondent District mailed a copy of the same staff report and notice of rights to interested third parties, including Petitioners. The notice of rights provided, among other things: PETITION FOR FORMAL ADMINISTRATIVE PROCEEDINGS Any person whose substantial interests are or may be affected by the action which is proposed in the enclosed Notice of Proposed Agency Action/Staff Review Summary, may petition for an administrative hearing ... Petitions for administrative hearing on the above application must be filed within four- teen (14) days of actual receipt of this Notice of Proposed Agency Action. Failure to file a petition within this time period shall constitute a waiver of any rights such person may have to request an administrative determination (hearing) under section 120.57, Florida Statutes, concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. There is no dispute that this provision is clear and unambiguous. Petitioners did not receive the mailed staff report and notice of rights. Before the filing of Respondent GL Homes' permit application, Petitioners had been involved with other permit applications which had come before Respondent District and had filed petitions for administrative hearings on other applications. Petitioners were well familiar with Respondent District's process, involving permit applications, its staff reports and the notice of rights. Sometime during the first week of September 1996, while at the Respondent District's office, Petitioner Durando obtained a copy of the staff report and notice of rights. Petitioner Durando appeared at the September 12, 1966, Governing Board meeting even though the permit application had not appeared on any agenda for the Governing Board that she had received. The permit application was to be heard as part of a list of "Add On Items", which did not provide prior notice of these items to the public. At the meeting of September 12, 1996, Petitioner Durando obtained again a copy of the staff report. However, the staff report contained a cover memo, dated September 9, 1996, to the Governing Board from the Director of Respondent District's Regulation Department, with four maps included. The cover memo was written in layman's terms and was a summary of the staff report. The cover memo contained no modification of the staff report. Moreover, the staff report attached to the cover memo contained no modifications. Cover memoranda are routinely prepared for the members of the Governing Board for items on which public comment is expected. Public comment was expected on Respondent GL Homes' permit application. A problem with notice to the public, regarding the Governing Board considering Respondent GL Homes' permit application at the September 12, 1996, was brought to the attention of the Governing Board. On the recommendation of Respondent District's staff, the Governing Board decided not to address the permit application at that meeting but to re-notice the public hearing on the permit application for October 10, 1996. Petitioner Durando was concerned as to whether Respondent District had to re-publish the staff report and notice of rights. She made an inquiry to a member of Respondent District's staff regarding this issue, who was unsure if a re-publication had to occur and informed Petitioner Durando of his uncertainty. Later in the evening of the same day of Petitioner Durando's inquiry, that same member of Respondent District's staff left a message on Petitioner Durando's answering machine that no re-publication of the staff report and notice of rights was required since there was no modification or change of the staff report. Also, prior to departing the September 12, 1996, Governing Board meeting, Petitioner Durando inquired of Respondent District's counsel as to when was the due date for filing a petition for an administrative hearing on Respondent GL Homes' permit application. Respondent District's counsel informed her that she must file her petition within 14 days of receiving a copy of the staff report and notice of rights. Petitioner Durando had attended other Governing Board meetings in the past which contained permit applications as agendaed items and as add on items. No evidence was presented to show that the prior permit applications considered by the Governing Board at its meetings did not contain a cover memo from Respondent District's staff, which summarized in layman's terms the staff report. Petitioner Durando believed that she had 14 days from September 12, 1996, in which to file a petition with Respondent District for an administrative hearing on Respondent GL Homes' permit application. She filed a petition on behalf of the Petitioners on September 26, 1996. Neither prior to nor subsequent to the September 12, 1996, Governing Board meeting was a modification made to the staff report or a second staff report prepared. Petitioners' actual receipt of the proposed agency action was sometime during the first week of September 1996. If Petitioners' actual receipt was on September 2, 1996, their petition for an administrative hearing must have been filed on or before September 16, 1996. If Petitioners' actual receipt was on September 6, 1996, their petition must have been filed on or before September 20, 1996. At all times material hereto, Petitioner Durando was not an attorney. Subsequent to filing the petition for an administrative hearing, Petitioners obtained the services of an attorney.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the petition for an administrative hearing as untimely. DONE AND ENTERED in this 13th day of November 1996 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1996.
The Issue The issue for determination is whether Petitioner's revocation of Respondent's modified permit, authorizing a cross- fence on Petitioner's fee owned right-of-way, should be approved.
Findings Of Fact The South Florida Water Management District (District) is a public corporation in the State of Florida, existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multi-purpose water management district. The District's principal office is West Palm Beach, Florida. In executing its multi-purpose, the District, as local sponsor for the US Army Corps of Engineers' Central and Southern Florida Flood Control Project, acquired canal rights-of-way. The District's rights-of-way were acquired to enable the Corps of Engineers to construct the flood control project and to maintain the system after its construction. The District operates a proprietary-based right-of-way program to manage the various property interests of the canal rights-of-way. The purpose of the District's right-of-way program is, to the extent possible, to allow uses of the rights- of-way that do not conflict with the flood control project. The rights-of way are used by both public and private concerns, including adjacent property owners, governmental entities, and utility companies. Jesus G. Quevedo is a private individual. His address is 2615 North Federal Highway, Lake Worth, Florida. The property at this address was vacant when Mr. Quevedo purchased it, and he has owned the property for approximately ten (10) years. The District has fee simple title to a strip of land on the south side of the District's C-51 Canal, immediately west of the Federal Highway/Olive Avenue bridge (C-51 Right-of-Way). Mr. Quevedo's property is located at the side of and adjacent to the C-51 Right-of-Way. The C-51 Right-of-Way is also located within the boundaries of Spillway Park as established in the agreement between the District and the City of Lake Worth. Generally described, Spillway Park includes the District's fee simple owned right-of-way on the south side of the District's C-51 Canal, beginning at the west side of the Federal Highway/Olive Avenue bridge and continuing to the east side of the Dixie Highway bridge. Mr. Quevedo has no real property interest in the C-51 Right-of-Way. Prior to purchasing his property, Mr. Quevedo was aware that the District owned the C-51 Right-of-Way. Historically, portions of Spillway Park and the C-51 Right-of-Way, in particular, have been a unique and popular location for excellent snook fishing by the public. These areas continue to be considered as such. On February 11, 1993, Mr. Quevedo was issued SFWMD Permit No. 9801 (Permit), a right-of-way occupancy permit, by the District’s Governing Board. The Permit authorized him to make use of the District’s lands and works as follows: 20’ X 50’ BOAT DOCK WITH WALKWAY, BURIED WATER AND ELECTRICAL SERVICE, POP-UP SPRINKLERS, AND SODDING WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED IMMEDIATELY WEST OF THE OLIVE AVENUE/FEDERAL HIGHWAY BRIDGE. During the permit application process, but prior to the issuance of the Permit, Mr. Quevedo had discussed with the District's staff the erection of a cross-fence based on allegations of improper or criminal activities by members of the public. Subsequently, in November 1995, Mr. Quevedo again discussed with the District's staff erection of a cross-fence based on the same allegations but he also included a new allegation of public safety as to the C-51 seawall. Based on the concern for public safety, the District's staff recommended that Mr. Quevedo be granted a modification to the Permit for a cross-fence. On November 14, 1996, the District's Governing Board approved, as part of its consent agenda, and issued SFWMD Permit MOD No. 9801 (MOD Permit)3 authorizing the following: CHAIN LINK CROSS FENCE WITH 16’ VEHICULAR GATE ALONG THE WEST PROPERTY LINE WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED AT 2615 NORTH FEDERAL HIGHWAY. The MOD Permit, as did the Permit, provides in pertinent part on its face the following: The permittee, by acceptance of this permit, hereby agrees that he shall promptly comply with all orders of the District and shall alter, repair or remove his use solely at his expense in a timely fashion. . . . This permit is issued by the District as a license to use or occupy District works or lands. . . By acceptance of this permit, the permittee expressly acknowledges that the permittee bears all risk of loss as a result of revocation of this permit. The MOD Permit, as did the Permit, contained standard limiting conditions, as provided in Rule 40E-6.381, Florida Administrative Code, and special conditions. The limiting conditions provide in pertinent part as follows: Permittee agrees to abide by all of the terms and conditions of this permit, including any representations made on the permit application and related documents. . . . This permit does not create any vested rights, and except for governmental entities and public or private utilities, is revocable at will upon reasonable prior written notice. Permittee bears all risk of loss as to monies expended in furtherance of the permitted use. Upon revocation, the permittee shall promptly modify, relocate or remove the permitted use. In the event of failure to so comply within the specified time, the District may remove the permitted use and permittee shall be responsible for all removal costs. This permit does not convey any property rights nor any rights or privileges other than those specified herein. . . . Having been granted the MOD Permit, Mr. Quevedo erected the cross-fence within and onto the C-51 Right-of-Way. The C-51 Right-of-Way is located adjacent to Mr. Quevedo’s property, as indicated earlier, and continues westerly to the permitted cross-fence. The C-51 Right-of-Way is enclosed by the cross-fence, preventing access by the public, and is located easterly of the cross-fence. As the C-51 Right-of-Way is located within the boundaries of the Spillway Park, the cross- fence is also located within the boundaries of the Spillway Park. During the time that Mr. Quevedo has owned his home, including prior to and after erection of the cross-fence, he, his family members and/or guests have frequently fished from the C-51 seawall and used the C-51 Right-of-Way enclosed by the cross- fence. Prior to and after the erection of the cross-fence, Mr. Quevedo and his family members have selectively controlled access by the public to the C-51 Right-of-Way at the C-51 seawall. Prior to the erection of the cross-fence, Mr. Quevedo chased members of the public off the C-51 Right-of-Way. Mr. Quevedo and members of his family also called law enforcement officers to remove members of the public who were located on the C-51 Right-of-Way, even if the members of the public were fishing from the C-51 seawall. After the erection of the cross-fence, Mr. Quevedo and his family members continued to engage in this conduct of selective access. Subsequent to the erection of the cross-fence, Mr. Quevedo had a member of the public arrested for trespassing. The person allegedly jumped over or went around the cross-fence to fish from the C-51 seawall in the C-51 Right-of-Way. With the existence of the cross-fence, Mr. Quevedo has prevented the general public from using the C-51 Right-of-Way, including the C-51 seawall. As a result, he has acquired the exclusive, private use of the C-51 Right-of-Way at the C-51 seawall, which is publicly owned land, and has, almost doubled the size of his adjacent property without the obligations and expense of acquisition, assuming he could acquire the property through acquisition. The District's policy is that public land should be open to the public. Contrary to this policy, Mr. Quevedo's cross-fence precludes access to the District's right-of-way (C-51 Right-of-Way), including the seawall, for passive recreational use. Similar cross-fencing, although not within the boundaries of Spillway Park, have been erected behind residences on the northeast, northwest, and southeast sides of Federal Highway, along the District’s C-51 Canal bank. The cross-fencing prevents public use of the District’s C-51 Canal bank at these locations. The City of Lake Worth made improvements within the boundaries of Spillway Park; however, it made no improvements, and does not intend to make any improvements in the future, at the C-51 Right-of-Way where Mr. Quevedo’s cross-fence is located or at the other private lots west of Mr. Quevedo's property. All of the improvements made at Mr. Quevedo’s cross-fence at the C-51 Right-of-Way have been made by him even though the C-51 Right-of- Way is located within Spillway Park. The original public safety rationale for authorizing Mr. Quevedo to erect the cross-fence blocking public access was revisited by the District. Additional investigation by safety experts (Risk Management staff) revealed that no unreasonable danger existed by allowing public access to the C-51 seawall at the C-51 Right-of-Way. In the absence of the public safety basis for closure of the C-51 Right-of-Way, such closure was contrary to District policy. As a consequence, the District’s staff recommended to the District’s Governing Board that the MOD Permit, authorizing Mr. Quevedo’s cross-fence, be revoked. After conducting two public meetings and receiving comments from Mr. Quevedo, members of the public, and the District’s staff as to the policy issue of pubic access to the C- 51 Right-of-Way, the District’s Governing Board determined that the C-51 Right-of-Way should be open to the public. Consequently, the Governing Board decided to revoke Mr. Quevedo's MOD Permit. Allegations of criminal activity within the general boundaries of Spillway Park and, specifically, in the C-51 Right- of-Way at the cross-fence area, were made by Mr. Quevedo as a basis to not revoke the MOD Permit and allow the cross-fence to remain. Such allegations have no bearing on the revocation of the MOD Permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order revoking SFWMD Permit No. MOD 981 issued to Jesus G. Quevedo. DONE AND ENTERED this 8th day of March, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 8th day of March, 1999.
The Issue The central issue in this case is whether the Department of Environmental Regulation (Department) should grant a dredge and fill permit which has been requested by the Respondent, William R. Cullen (Applicant). That proposed permit has been opposed by the Petitioners (who will be referred to collectively as Petitioners for convenience sake).
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made: The Department is the state agency authorized to issue permits pursuant to Chapter 403, Florida Statutes. The Respondent, William R. Cullen, filed an application for a dredge and fill permit to construct a slip marina on June 4, 1985. The original request was subsequently amended to seek approval for a forty-two slip commercial marina. The project site for the Applicant's marina is located at Key Largo, Monroe County, Florida. The site is within Buttonwood Sound, Florida Bay. The property is owned by Mr. Cullen and his family. All of the proposed improvements will be constructed on submerged lands or uplands owned or controlled by the Cullen family. The project site is located within a commercial area of Key Largo and contains frontage on both the water, Buttonwood Sound, and the highway, U.S. Highway 1. The project site has a basin which was created by the excavation of materials used for road construction from the shoreline and the installation of an L-shaped rock jetty which runs roughly perpendicular and then parallel to the shoreline. This jetty was installed during the late 1960s. The water depths within the basin range from 3 feet to approximately 14 feet. The water within the basin is subject to the same tidal considerations as the waters within Buttonwood Sound. There is no interruption of the flow of water in and out of the basin from those waters of the Sound. The water within this basin is within an Outstanding Florida Water as defined in Rule 17-3.041, Florida Administrative Code. The Applicant's plan calls for the excavation of appproximately 30,170 square feet of upland area and the dredging of the existing basin for approximately 18,460 dredged square feet. During the construction phases, the Applicant proposes to install turbidity curtains to limit the adverse effects expected during that time. The improvements are intended to be a permanent alteration to the basin design and will permanently modify the marine life habitat within that basin. The Applicant proposes to remove portions of the existing jetty to allow additional water to flow through the basin unimpeded by the jetty walls. The removal of the jetty walls will expedite the dilution and flushing of potential pollutants from the basin on a tidal frequency. That flushing is purported to assure that the water quality within the basin will not be diminished. However, such pollutants will be flushed into Buttonwood Sound. Stormwater accumulating on the upland project is to flow toward a lower upland area and should not to be dumped into the basin. The proposed marina is to have fueling facilities and the Applicant has agreed to design that system to limit inadvertent spillage. Further, as a condition of the permit, the Applicant has agreed to abide by the Department of Natural Resources' spill contingency plan requirements. The proposed marina is designed to provide portable sewage pumpout facilities for each slip. A permanent pumpout facilities will also be available. The Applicant seeks to attract boats in the range of 30 to 50 feet in length at this facility. While there are a number of other marinas in other areas of Key Largo which might accomodate that size boat, the marinas in the immediate vicinity of this project site are designed for smaller craft. The area within the basin consists of unvegetated bottom, submerged rip-rap, sea grasses, and hardbottom/algae communities--the predominant classifications being the latter two. The deeper hardbottom areas are to be filled and portions of the sea grasses will be dredged in order to configure the proposed docks. Additionally, other sea grass areas will be shaded, and thereby disturbed, by the construction of the docks. There are no historical or archaeological features relevant to the proposed site. The area has not been designated as a critical manatee area, however, manatees do frequent the project vicinity and have been observed feeding immediately adjacent to the basin. The permit proposed for this project requires a water quality monitoring plan. In addition to sampling for coliform, diesel by-products, oils, greases, detergents, oxygen, copper, lead and zinc, the plan requires sampling for aluminum, cadmium, and chromium. The monitoring stations are to be located both within the basin (2 stations) and outside the basin (2 stations). Liveaboards or others continuously docked at the marina will create additional shading which will disrupt and adversely affect the sea grass system. In order to provide access to the marina, the Applicant intends to dredge a channel in an area containing sea grass which is undisputedly within the Outstanding Florida Waters. The Department deemed the subject application was complete on February 23, 1988. The Department did not apply the Keys Rule found in Rule 17-312.400, Florida Administrative Code, to this project. The Department also did not apply the Mitigation Rule found in Rule 17-312.300, Florida Administrative Code, to this project. Michael Dentzau has personally reviewed and processed 250-300 dredge and fill permits during his tenure with the Department. Of those projects he has reviewed, he has not recommended that dense sea grass beds of the type located within this project site be dredged in order to construct a commercial marina. Phillip Edwards was responsible for executing the Intent to Issue in this case. In determining that this project had provided reasonable assurances that water quality standards will not be violated, Mr. Edwards weighed the public interests criteria set forth in Section 403.918, Florida Statutes. Because he received letters purportedly from elected officials, Mr. Edwards presumed that the project was in the public interest. That assumption of fact has not been established by this record. According to Mr. Edwards, the adverse effects expected by this project could be adequately addressed by the permit conditions when weighed against the public interest in favor of the project. Since Mr. Edwards' assumptions as to the public interest in this project have not been established, his conclusion regarding the weight that interest should receive can be given little consideration. The project as proposed by the Applicant will not adversely affect navigation or cause harmful erosion or shoaling. The project as proposed by the Applicant will adversely affect fishing or marine productivity within the basin since it will permanently alter the basin biologically by destroying sea grass. The increased boat traffic within the Sound will also detract from the present recreational uses enjoyed by area residents. According to Mr. Edwards, it is very unusual for the Department to issue a permit when sea grasses will be adversely affected. In the 17 years in which he has reviewed permits, only two occasions merited approval when the destruction of sea grasses to the extent in this case would result. Neither of those cases were factually similar to the case at issue. In those cases, however, elected officials advised Mr. Edwards, as he presumed they had here, that there was a public need for the permit. Increased boat traffic will result in increased manatee mortality due to collisions. In order to assure water quality will not be degraded within a marina, the project should have a short flushing time comparable to healthy natural embayments. In this case, the flushing proposed by the Applicant is dependent, in part, on winds which may be inconsistent or relatively minimal during the summer months.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order denying the permit requested by the Applicant. DONE and ENTERED this 22nd day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1990. APPENDIX TO CASE NOS. 89-3779 et seq. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONERS: The first three sentences of paragraph 1 are accepted; the remainder is rejected as argument or irrelevant. Paragraph 2 is accepted. Paragraph 3 is accepted. With regard to paragraph 4, it is accepted that the Department deemed the application complete on February 23, 1988; otherwise, the paragraph is rejected as argument. With regard to paragraph 5, it is accepted that the habitat within the basin is the same as the habitat throughout Florida Bay and that the basin is not "enclosed" hydrologically; otherwise, the paragraph is rejected as argument or comment. Paragraphs 6, 7, 8, 9, 10, 11, and 12 are rejected as argument, conclusions of law, or comment. The paragraphs do not recite facts pertinent to this case. Paragraphs 13, 14, and the first two sentences of paragraph 15 are accepted. The remainder of paragraph IS is rejected as argument. The first two sentences of paragraph 16 are accepted. The remainder of the paragraph is rejected as comment or argument. Paragraph 17 is accepted. Paragraph 18 is rejected as argument. To the extent that paragraph 19 accurately describes Van de Kreeke's assessment of the report it is accepted; otherwise rejected as irrelevant, comment, argument, recitation of testimony or unsupported by the record. The report upon which comment is directed was not offered in this cause to prove its truth/accuracy. Paragraphs 20 through 22 are rejected as comment, argument, recitation of testimony or unsupported by the record-- see comment to paragraph 19 above. Paragraphs 23 through 26 are accepted. Paragraphs 27 and 28 are rejected as argument, comment, or contrary to the weight of the evidence. Paragraphs 29 and 30 are accepted. Paragraph 31 is rejected as argument or contrary to the weight of the evidence. Paragraphs 32 and 33 are accepted. Paragraph 34 is rejected as hearsay, irrelevant, or argument. Paragraph 35 is rejected as comment or argument. Paragraph 36 is accepted. Paragraphs 37 through 40 are rejected as argument or contrary to the weight of the evidence. Paragraphs 41 through 43 are accepted. Paragraph 44 is rejected as contrary to the record. Paragraph 45 is rejected as argument. Paragraph 46 is rejected as argument or contrary to the weight of the evidence. Paragraph 47 is accepted but is comment. Paragraphs 48 and 49 are accepted. Paragraph 50 is rejected as repetitive. Paragraph 51 is rejected as argument or conclusions of law. The first three sentences of paragraph 52 are accepted. The remainder of the paragraph is rejected as argument. The first sentence and that portion of the second sentence of paragraph 53 that ends with the word "authenticity" is accepted. The remainder of the paragraph is rejected as argument or conclusions of law. Paragraphs 54 and 55 are accepted. Paragraph 56 is rejected as irrelevant or hearsay. Paragraph 57 is rejected as hearsay. Paragraph 58 is rejected as argument, comment, or irrelevant. Paragraphs 59 through 66 are accepted. Paragraph 67 is rejected as contrary to the weight of the evidence. Paragraph 68 is rejected as contrary to the weight of the evidence. Paragraphs 69 and 70 are accepted. Paragraph 71 is rejected as repetitive. Paragraph 72 is rejected as argument. The first sentence of paragraph 73 is accepted; the remainder is rejected as contrary to the weight of the evidence. Paragraph 74 is accepted. Paragraphs 75 through 77 are rejected as contrary to the weight of the evidence. Paragraphs 78 and 79 are accepted. Paragraph 80 is rejected as repetitive. With the inclusion of the words "and hardbottom and algae" paragraph 81 is accepted. Paragraph 82 is accepted. Paragraph 83 is accepted. Paragraph 84 is rejected as contrary to the weight of the evidence. 5l. Paragraphs 85 through 89 are accepted. With the substitution of the word "not" for the word "ever" in the last sentence of paragraph 90, it is accepted. Paragraphs 91 through 94 are accepted. Paragraph 95 is rejected as not supported by the record or contrary to the weight of the evidence. Paragraphs 96 through 100 are accepted. Paragraph 101 is rejected as repetitive. Paragraphs 102 through 106 are rejected as argument, comment, or irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraph 1 is accepted. Paragraph 2 is rejected as contrary to the weight of the credible evidence. The waters within the basin are of the same origin as they were prior to the creation of the jetty; no artificial body of water was created. With regard to paragraph 3 it is accepted that the jetty was constructed in the late 1960s. Paragraph 4 is accepted. With regard to paragraph 5 it is accepted that that is the applicants proposal no conclusion as to the likelihood of that is reached. Paragraph 5 is accepted. Paragraph 6 is accepted. Inevitably, however, spills will occur and must be considered as an adverse affect of the project. Paragraph 7 is accepted. Paragraph 8 is rejected as unsupported by competent evidence or contrary to the weight of the evidence presented. Paragraph 9 is rejected as contrary to the weight of the evidence. Paragraph 10 is accepted. Paragraph 11 is accepted but is inadequate to offset the adverse affects to manatees. Paragraph 12 is accepted but is inadequate to limit the adverse affects to sea grass. Paragraph 13 is rejected as contrary to the weight of the evidence. Paragraph 14 is rejected as contrary to the weight of the evidence. Paragraph 15 is accepted. Paragraph 16 is accepted. Paragraphs 17 and 18 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE APPLICANT: Paragraphs 1 through the first sentence of paragraph 6 are accepted. The second sentence of paragraph 6 is rejected as contrary to the weight of the evidence. Paragraphs 7 through Il are accepted. Paragraph 12 is rejected as irrelevant. Paragraphs 13 through the first sentence of paragraph 17 are accepted. The remainder of paragraph 17 is rejected as contrary to the weight of the evidence. Paragraph 18 is accepted. Paragraph 19 is rejected as unsupported by the record or contrary to the weight of the evidence. Paragraph 20 is accepted. Paragraphs 21 through 26 are rejected as contrary to the weight of the evidence. Paragraph 27 is rejected as contrary to the weight of the evidence or unsupported by competent evidence. The first sentence of paragraph 28 is accepted, the remainder rejected as speculative, comment, or unsupported by the record. The first sentence of paragraph 29 is accepted, the remainder rejected as contrary to the weight of the evidence. Paragraph 30 is accepted. Paragraph 31 is rejected as contrary to the weight of the evidence. Paragraph 32 is rejected as contrary to the weight of the evidence. Paragraph 33 is accepted but is irrelevant. Paragraph 34 is rejected as contrary to the weight of the evidence. Paragraph 35 is accepted; however, sea grasses not disturbed by dredging will still suffer adverse affects from shading and silting. Paragraph 36 is accepted but see comment to paragraph 35 above. Paragraph 37 is accepted. Paragraph 38 is accepted. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is accepted. Paragraph 41 is accepted. Paragraph 42 is accepted. Paragraph 43 is rejected as irrelevant. Paragraph 44 is rejected as contrary to the weight of the evidence. Paragraph 45 is accepted but it should be noted that is not the extent of the proposal. Paragraph 46 is rejected as contrary to the weight of the evidence. Paragraph 47 is accepted. Paragraph 48 is rejected as contrary to the weight of the evidence. Paragraph 49 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: Pamela Presnell Garvin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charles Lee Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Robert Routa P.O. Box 6506 Tallahassee, Florida 32314-6506 Linda McMullen McFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. 600 First Florida Bank Building Tallahassee, Florida 32301 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
Findings Of Fact Pal-Mar has filed application No. 29454 pursuant to Chapter 373, Florida Statutes, requesting approval for a surface water management system known as Phase III of Pal-Mar Water Management District, to serve approximately 3,600 acres of residential land in Martin County, Florida. The project discharges to C-44, the St. Lucie canal. SFWMD's staff report recommends approval be granted for the proposed water management system based on considerations of water quality, rates of discharge, environmental impact and flood protection. Approval is subject to certain conditions which are not material to the instant cause. As background material to the staff report, the staff makes reference to the U.S. Army Corps of Engineers report entitled "Survey-Review Report of Central and Southern Florida Flood Control Project, Martin County," dated September 22, 1967. The Corps of Engineers' report was not used in the decision-making process but rather was included in the staff report to provide a comprehensive overview. Whether the Corps of Engineers' plans were ever implemented would not affect the recommendations of the staff. The land in question is currently zoned "IZ" (interim zoning) according to Martin County's zoning regulations. In this category, if the neighborhood is predominantly one classification of usage, then the zoning director is to be governed by the regulations for that class of usage in determining the standard zoning regulations to be applied to the interim zoning district. If no trend of development has been established in the neighborhood, the minimum standards of the R2 single family zoning district are to be complied with. Rule 16K-4.035, Florida Administrative Code, entitled Basis of Review of Applications for Construction of Works, provides in Section (2) that all applications such as the instant one shall be reviewed in accordance with the provisions of the district's "Basis Of Review For Construction Of Surface Water Management Systems Serving Projects With Two Or More Acres Of Impervious Area Within The South Florida Water Management District - December, 1977." The Basis of Review provides in Part VI that before an application will be considered for the issuance of a permit, the proposed land use must be "compatible with the applicable zoning for the area." The evidence indicates that the land in question has a history of agricultural use. However, the evidence also discloses that far from being a trend towards agricultural use there is a trend away from it. A major portion of the neighboring lands will be devoted to Phases I, II, IV and V, of the Pal-Mar Water Management District. According to Florida Land Sales Board registrations, the land in question is subdivided into one-half acre, one acre, 1.4 acre and two acre lots. The average project density is one lot per acre. In addition, there is some mobile home usage within neighboring areas. If there is a trend, it is toward R2 zoning type usage. SFWMD's staff concluded that the proposed land use was compatible with the applicable zoning for the area. Martin County has failed to establish that such compatibility does not exist. In the Redraft of Order Permitting Change of Plan of Reclamation and Change of Name dated November 4, 1969, the Honorable C. Pfeiffer Trowbridge, Circuit Court Judge of the Nineteenth Judicial Circuit in and for Martin County, observes that the Petitioner in that case (herein Pal-Mar) "permanently and irrevocably withdrew its application to drain into the St. Lucie canal thereby removing all reasons for objections" to the proceedings in Circuit Court. However, there is no evidence to indicate that there exists a prohibition against drainage into the St. Lucie canal or that Judge Trowbridge's order is intended to preclude approval of Pal-Mar's present application.
The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON 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 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
Findings Of Fact Based on the Stipulation of counsel, the exhibits, and the pleadings filed herein, the following findings of fact are made: On December 11, 1998, Ms. Morro, who is the wife of Michael J. Morro, the developer of the property, filed her application with the District for an Environmental Resource Permit (ERP), which would authorize the construction of a surface water management system (including one wet-detention pond) to serve a 12-lot, single-family residential subdivision known as Tranquility on Lake Brantley in Seminole County, Florida. In more specific geographic terms, the project is located on the south side of Wekiva Springs Road, on Cutler Road, and on the north side of Lake Brantley near the City of Longwood. The application was assigned number 40-117-0567A-ERP. The exhibits filed herein suggest that Ms. Morro, and not Mr. Morro, owns the subject property. After determining that the Applicant provided reasonable assurance that the proposed activities met the conditions for issuance of a permit and the system was consistent with its review criteria, on July 14, 1999, the District approved the application and issued Permit Number 40- 117-51722-1 (1999 Permit). However, the Permit did not authorize the construction of a retaining wall on Lot 10 of the Applicant's property. There is no record of any third party challenging the issuance of the 1999 Permit. On February 19, 2002, the Applicant submitted "as built drawings" to the District, as required by Condition 10 of the 1999 Permit, to enable the District to verify that the work was completed in compliance with the approved plans and specifications. These as-built drawings did not reflect a retaining wall on Lot 10. Mr. Adley resides and owns property at 880 Lake Brantley Drive, Longwood, Florida, which is "next to" the Morro property. It is fair to say that a less-than-harmonious relationship exists between the two neighbors. Indeed, the exhibits reflect that Mr. Adley, the Applicant, and the Applicant's surveyor "have been involved in several causes of action between them over details of development on this property," and that over the years Mr. Adley has filed numerous complaints with the District regarding alleged violations by the Applicant while she performed work under the 1999 Permit. Mr. Adley is familiar with ERPs and the process for obtaining one, having had ownership interests in businesses that have obtained ERPs from the District, and having participated in the activity undertaken to obtain the permits and then implement the activities authorized by the permits. On May 16, 2003, Mr. Adley sent a letter to Kirby A. Green, III, Executive Director of the District, citing seven issues regarding Ms. Morro's proposed subdivision and asking that he be notified, in writing, "of any modifications to the permit, request for modifications of the permit, notice of violations, change to the approved plan, changes to the Covenants and Articles of Incorporation, any other changes to the proposed construction activities and any public notices that would effect [sic] [his] right to file for an administrative hearing." Mr. Adley also indicated that he had scheduled a meeting with William E. Carlie, Jr., District Compliance Manager, to be held on May 19, 2003, "to discuss these issues with him in person." On May 29, 2003, Mr. Adley sent a letter to Duane Ottenstroer, then Chairman of the District's Governing Board, regarding "the subdivision being constructed next to [his] home." In his letter, he voiced concerns about the recorded conservation easement on the Morro property being significantly different from the easement approved by the 1999 Permit. He also complained that the Applicant had submitted false information with an application submitted to the District in 1991. Finally, he enclosed a copy of the letter previously sent to Mr. Green. On June 6, 2003, Mr. Adley sent a second letter to Mr. Carlie advising that the Applicant was violating the conditions in the 1999 Permit in five respects. The letter confirmed that Mr. Adley would again meet with District staff concerning this matter on June 11, 2003. After conducting an investigation regarding Mr. Adley's allegations of violations by the Applicant, on September 12, 2003, K. Wilford Causseaux, an engineer in the Department of Water Resources, sent a letter to the Applicant's surveyor, Michael W. Solitro (who Mr. Adley says is the former Seminole County Surveyor who loaned the Applicant money in April 1998 to develop the land and then purchased a discounted lot from the Applicant in return for "development services"), affirming the staff's finding that the "construction on [Morro's] residential property on Brantley Drive has encroached on the 100-year flood plain in the rear yard of Lot 11." Also, the letter identified the remedial steps that must be undertaken to correct three "issues associated with [the] residential construction." Finally, the letter noted that Mr. Morro had agreed to remove fill on Lot 7 that violated the "limits of construction" and return the rear-lot grading to its pre-development condition. On September 29, 2003, Mr. Adley sent a third letter to Mr. Carlie confirming that the District had not allowed the Applicant to construct a retaining wall in lieu of a swale on Lot 11 and that if the Applicant wished to construct a wall, she must apply for a modification to the 1999 Permit. The letter also noted that Mr. Carlie agreed to notify Mr. Adley "in writing of any modification to the permit," including "minor" modifications. Finally, Mr. Adley requested the status of the incorrect conservation easement recorded on the property. Apparently in response to that letter, by email dated October 10, 2003, Mr. Carlie notified District counsel that Mr. Adley "has submitted a written request for actual notice of any proposed modification of this permit, will likely object, and potentially will challenge any agency action in this regard to a 120 hearing." On October 24, 2003, Mr. Carlie responded to Mr. Adley's letter of September 29, 2005, and advised him that the staff had determined that "portions of the fill placed for development of [Lot 11] are waterward of the limits of construction" and that this action "is a violation of the permit subject to enforcement action." The letter confirmed that the District understood Mr. Adley's "request to be noticed of any modifications of the reference permit" and promised that "actual notice (mailed notice to your residence) of any action this agency undertakes in this regard" would be given. Mr. Carlie further explained that some modifications to a permit could be issued by letter, while other modifications required an application, fee, and formal agency action. He indicated that the remedial steps outlined in his letter dated September 12, 2003, to Mr. Solitro "may qualify for a permit modification by letter under the provisions of section 40C-4.331 F.A.C." Finally, Mr. Carlie stated that the "District continues to understand your concern about this project and request to be noticed of any modifications of the reference permit. You will be provided actual notice (mailed notice to your residence) of any action this agency undertakes in this regard." Also on October 23, 2003, Mr. Carlie sent a second letter to Mr. Adley outlining in detail the results of the District's investigation of Mr. Adley's concerns expressed in various letters and at least two meetings with staff. On May 3, 2004, Frank J. Meeker, the District's Ombudsman, sent Mr. Adley a letter regarding a Verified Complaint dated April 1, 2004, that Mr. Adley had filed with the Executive Director. (The Verified Complaint was not included in the exhibits which accompanied the Stipulation, but a copy is attached to the Motion.) The letter responded to "six specific objections" Mr. Adley had raised concerning work on the Morro property. It also instructed the District staff to prepare, within thirty days, a letter of modification to the 1999 Permit which addressed the conservation easement, monuments, and 100- year flood elevation issues, together with a recommendation for approval or denial, and to submit the modified conservation easement to the Executive Director for approval or denial. Finally, the letter noted that Mr. Adley would receive "written notice of these actions" and an opportunity to object to these modifications. The record is unclear whether Mr. Meeker's instructions to staff resulted in a letter of modification to the 1999 Permit without further action by the Applicant, or whether it triggered an application by the Applicant to modify her 1999 Permit based upon the staff recommendations. More than likely, the latter occurred. On May 26, 2004, Mr. Meeker provided a follow-up letter to Mr. Adley in which he confirmed that Mr. Adley had been given a copy of the project plans dated June 17, 1999, used by Ms. Morro in securing the 1999 Permit. He further advised that until he received a staff survey "to determine the size of the dock [for purposes of determining if a permit was required] and the location of the red wall and retaining wall," no disposition of those issues could be made. Finally, he advised that no formal request for modification of the 1999 Permit had been filed, but if and when one was filed, he was "directing staff to supply you with a copy of such application." On July 6, 2004, Ms. Morro filed an application with the District seeking to modify her 1999 Permit. (The application noted that Mr. Morro would serve as Ms. Morro's authorized agent to secure the permit.) In the application, Ms. Morrow described the proposed activity as follows: "Alteration of permitted conservation easement[,] to remove easement from lot 11[,] and provide reserved rights for construction of 2 single family docks." This application was assigned number 10-117-51722-2. As noted above, the application did not include a provision for a retaining wall on Lot 10. However, sometime between the time the application was filed in July 2004 and January 21, 2005, the Applicant amended her application to add a request for a retaining wall. By email dated July 12, 2004, counsel for the District notified the reviewer of the application, Anthony Miller, that "I told Mr. Adley to call PDS [Permit Data Services]. Who should I contact there to see what notice was sent? Mr. Adley is going to challenge this so we need to make sure everything is done right." Mr. Miller emailed back the following response: "I have no idea. I assume it was noticed as usual through PDS to those listed to receive notices. Should we do anything more, like contacting Mr. Adley directly?" By letter dated July 15, 2004, Mr. Carlie forwarded a "complete copy" of Ms. Morro's application to Mr. Adley. The letter noted that Mr. Adley's receipt of the letter, attached materials, and notice of rights "shall serve [as] the notice you requested for the purposes of timeframes under Chapter 120, F.S." (A copy of Notice of Rights was enclosed; it set out in detail the process by which Mr. Adley could request a formal hearing.) The enclosed construction drawings did not indicate the inclusion of a retaining wall. During the staff's review process of the application, two Requests for Additional Information (RAI) were sent by the District to Mr. Morro on August 3, 2004, and January 21, 2005. Significantly, item 4 on page 2 of the RAI dated January 21, 2005, noted that "[t]he plans indicate that a retaining wall is proposed. Please provide detailed calculations, and a revised wall detail as necessary, to demonstrate that this portion of the surface water management system will function as intended." (Emphasis added) Copies of both RAIs were sent to Mr. Adley. On February 28, 2005, the Applicant filed a letter and attachments in response to the January 21, 2005 RAI, which included, among other things, plans and details prepared by a professional engineer for a retaining wall to be located landward of the 100-year floodplain, the limit of construction. The Stipulation and exhibits do not indicate whether these documents were ever provided to Mr. Adley at that time.1 However, on March 9, 2005, they were provided to his counsel for review. See Finding of Fact 21, infra. By letter dated January 21, 2005, Mr. Adley's former counsel (Timothy A. Smith, Esquire) made a public records request for inspection of "the district files relating to permit numbers 40-117-51722, 40-117-0567, and any other district permits or applications for such permits relating to the property owned by Frances and Michael Morro on Brantley Drive along the northern shore of Lake Brantley." (The letter indicates that Mr. Smith would meet District counsel in Palatka on January 25, 2005, to review this part of the records request.) The letter also requested that Mr. Smith be allowed to review all files of eleven District employees which related to the various iterations of the Morro project in 1990-1991, 1997-1998, and 1999 to present. The records pertaining to the second part of the request were apparently located in another office and were to be inspected at a later time. According to the Stipulation, in response to the public records request, on March 9, 2005, Mr. Smith reviewed all requested files in the District's main office in Palatka and the District's field office in Altamonte Springs. (As noted above, part of the records were inspected on January 25, 2005, in Palatka.) It is fair to infer that on March 9, 2005, Mr. Smith would have had the opportunity to review the Applicant's plans and details for a retaining wall filed with the District on February 28, 2005. By this time, then, Mr. Adley should have been on notice that the Applicant had modified her application and now sought to build a retaining wall. On March 30, 2005, the District, through its Altamonte Springs field office, approved Ms. Morro's application and issued Permit No. 40-117-51722-2 (2005 Permit). The 2005 Permit authorized the modification of the 1999 Permit "to include the construction of a retaining wall along the rear of Lots 6, 7, 8, 9, and 10 and the 'lot split' lot, and to amend the easement on Lots 9 and 10, to allow selective clearing and trimming of the conservation easement in accordance with a District approved landscape plan, and to exclude lands no longer under the applicant's control." On April 10, 2005, notice of the issuance of the 2005 Permit was published by Ms. Morro in the Sanford Herald, a newspaper of general circulation in Seminole County. See Fla. Admin. Code R. 40C-1.1007(1). The Notice provided that "[p]etitions for administrative hearing on the above application must be filed within twenty-one (21) days of publication of this notice or within twenty-eight (28) days of the District depositing notice of this intent in the mail for those person to whom the District made actual notice. Failure to file a petition within this time period shall constitute a waiver of any right(s) such person(s) may have to request an administrative determination (hearing) under sections 120.569 and 120.57, F.S. concerning the subject permit." Therefore, if notice was received by publication, petitions objecting to the issuance of a permit were due no later than May 1, 2005, or if written notice was given, petitions were due no later than May 8, 2005. The District did not send Mr. Adley written notice of its intent to issue the 2005 Permit. There is no indication in the Stipulation, exhibits, or Motion as to why notice was not sent, particularly since Mr. Adley had made numerous requests for written notice of any District action on the property, and he had been promised such notices by various District personnel since at least October 2003. On April 25, 2005, Ms. Morro began construction of the retaining wall authorized by the 2005 Permit and construction continued over the next thirty calendar days. It is fair to assume that the wall was completed on or about May 25, 2005. Also on April 25, 2005, or the day construction began, at Mr. Adley's direction, Mr. Smith (his former counsel) telephoned Mr. Carlie to inform him that construction activity on Lot 10 was taking place. Therefore, it is clear that on that date, Mr. Adley had observed that construction on the Morro property had begun. In response to Mr. Smith's telephone call, Mr. Carlie then requested that two District employees, Mr. Casseaux and David Eunice, investigate what was occurring on the Morro property. On the same date that Mr. Smith telephoned Mr. Carlie, Casseaux and Eunice inspected the Morro property and observed that a retaining wall authorized by the 2005 Permit was under construction. It is fair to infer from the stipulated facts that Mr. Carlie reported these findings to Mr. Smith within a short period of time. On an undisclosed date, but presumably within a day or so, Mr. Smith reported to Mr. Adley that he had spoken with Mr. Carlie and was told the construction was in conformance with "the Permit" but that Mr. Carlie did not specifically refer to either the 1999 Permit or the 2005 Permit as authorizing the work. The Stipulation and exhibits do not indicate whether Mr. Carlie advised counsel that the 2005 Permit had been approved. However, given the history of this dispute, it would be highly unusual for counsel not to make inquiry about the disposition of the application, or for Mr. Carlie not to provide this information during the course of their telephone conversations, particularly since Mr. Carlie was well aware of Mr. Adley's long-standing interest in the Morro project. Mr. Adley could not tell from his view of the property whether the exact location of the construction was lakeward of the limits of construction, which was the 100-year floodplain, and therefore could only rely on the District staff. Mr. Adley asserts that he did not learn of the 2005 Permit modification until July 25, 2005, through a conversation with an unidentified neighbor. Whether Mr. Adley (or his counsel) then called the District to verify the accuracy of the neighbor's information is not of record. (The initial Petition for Administrative Hearing simply alleges that "petitioner received notice of the District's action on July 25, 2005, through a conversation with a neighbor.") On August 15, 2005, or twenty-one days later, through counsel, Mr. Adley filed his initial Petition for Administrative Hearing with the District challenging the issuance of the 2005 Permit. (The Amended Petition was later filed on October 12, 2005, as a result of the striking of certain allegations in the first filing.) The District's Motion was then filed on November 16, 2005. (Action on the Motion has been delayed because of substitution of Petitioner's counsel, and delays by the parties in taking discovery and preparing the Stipulation.)
The Issue The issue for consideration in this case is whether the Department should impose administrative penalties in the form of fines, costs and points assessment because of the matters alleged in the Administrative Complaint and Order entered herein.
Findings Of Fact At All times pertinent to the issued herein, the Petitioner, SWFWMD, was the governmental agency responsible for the licensing of well contractors and the permitting of well drilling and abandonment within its jurisdictional area. Respondent, Edward Tanner, was a licensed water well contractor, holding license Number 2276 issued on July 21, 1982. On January 16, 1996, SWFWMD issued Well Construction permit 575267.01 to Respondent for the abandonment of a four-inch diameter water well on property owned by Mr. McCrimmon located at Five Tera Lane in Winter Haven. The well, a domestic water well, had failed and Respondent applied for a permit to construct a new well at the site and abandon the failed well. Stipulation Number Four of the permit issued to the Respondent provided that the well must be examined for debris or obstructions from the land surface to the original depth of construction, and further required that any debris or obstruction discovered be removed from the well prior to the commencement of abandonment. In addition, the stipulation called for the well to be plugged from bottom to top by an approved method of grouting. According to the permit, if any other method of abandonment was to be used, it must be approved in advance by specifically denoted District personnel. Though Respondent did not utilize the approved method of abandonment in this project, he did not apply for a variance from the District. Had he done so, he would have been required to show some emergency or hardship which would have prevented him from properly filling the abandoned well with cement from top to bottom and justified an alternative method of abandonment. In this case, Respondent plugged the well in issue, which was 210 feet in depth, from the land surface down to fifty five feet, utilizing six bags of portland cement. Deviation from the 210 foot plug required a variance to be granted by the District. Respondent did not seek this variance. Well abandonment is a regulated practice because, inter alia, improper abandonment may result in contamination of the aquifer. The well in question here is located in an area susceptible to contamination by ethylene dibromide, (EDB), recognized as a human carcinogen, which is known to be present in the area. In addition to failing to properly abandon the well, Respondent also failed to file a well completion report within thirty days of completion of his abandonment effort. The required report was submitted on June 10, 1996, nearly four months after it was due. Respondent relates that in January 1996, after he had worked on a well “commonly known” to be the subject of litigation, he was asked to try to fix the well in issue. When he saw the problem, he contends he repeatedly advised the authorities that the well was leaking sand and could not be cleaned out to the bottom as the District required. Therefore, to preserve the integrity of the well, he plugged it at a point below the break in the well lining. At that time, he told Mr. McCrimmon what the situation was and advised him the well needed to be abandoned, but he, Tanner, did not do that type of work. Respondent contends, supported by his son, that on January 16, 1996, while he was at Mr. McCrimmon’s property, he was told by Mr. Wheelus and Mr. Lee, both District officials, that Mr. Calandra, also a District official had said he, Tanner, had to pull a well abandonment permit or Calandra would not sign off on the new well. At that point, Respondent claims, he went to the District’s Bartow office to argue with Mr. Calandra, and asked Mr. Calandra to show him the law which supported Calandra’s position. Calandra persisted in his position and even, according to Respondent, bet with another District employees that Respondent had to do what he was told. This other employee does not recall any such bet. Therefore, under protest and only so he could get paid for the work he had done on the new well, Respondent agreed to pull the abandonment permit. At that time, he claims, he asked the District personnel in charge how many bags of concrete would be required to abandon the well and was told, “six”. When the time came to do the actual work, Respondent called for the required observer to be present from the District office, but because no one was available at the time, he was granted permission to do it without observation. He did the job as he felt it had to be done, and thirty days to the day after that, was served with the notice of violation. Respondent contends either that the witnesses for the District are lying in their denials of the coercive statements he alleges, or the situation is a conspiracy to deprive him of his civil rights. He does not believe a well contractor should be required to stay current regarding all the District rules regarding well construction and abandonment because the rules change so often. Respondent admits, however, that the rules in existence at the time in question required the filling of a well all the way down and that he did not do that nor did he seek a variance., He knew he was required to comply with the conditions of a permit. He also admits that a completion report was due within thirty days of work completion. In that regard, however, he contends that when the issue went into litigation, he felt the district would advise him of what he had to do. In this he was mistaken, but he was not misled into believing so by anything done or said by District personnel. Taken together, the evidence does not demonstrate that anyone from the District staff coerced Respondent into abandoning the well. He was issued a permit to drill the new well for Mr. McCrimmon with no conditions thereon. By the same token, the abandonment permit he obtained did require the complete clearing and total plugging of the abandoned well, and this was not done. The costs incurred by the District in the investigation and enforcement of this alleged violation totaled in excess of $500.00.
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 finding Respondent, Edward Tanner, guilty of improperly abandoning the well in issue and failing to file the required report in a timely manner, and assessing enforcement costs in the amount of $500.00 in addition to an administrative fine of $250.00. DONE and ENTERED this 29th day of January, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1997. COPIES FURNISHED: Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward Tanner 1137 Saint Anne Shrine Road Lake Wales, Florida 33853 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether Application #01109-L and Application #01109-J for a public water supply system to serve approximately 17,500 acres of land in Lee County, Florida, should be granted and a permit issued by the South Florida Water Management District.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that a water use permit be issued to the applicant pursuant to Applications #01109-J and #01109-L for a total annual allocation of 1.64 BGY for ten (10) years subject to the thirty-one (31) limiting conditions attached to the "Florida Cities Water Company" report, which report is a part of the record of this case. DONE and ORDERED this 18th day of January, 1980, in Tallahassee, Leon County Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1980. COPIES FURNISHED: Stephen A. Walker, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Ross A. McVoy, Esquire 318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302 Terry F. Lenick, Esquire Assistant County Attorney County of Lee Post Office Box 398 Fort Myers, Florida 33902 =================================================================
