The Issue The issues in this case are: Whether Petitioner, Warren M. Briggs ("Briggs"), should be issued a Wetland Resource Permit (WRP) for the construction of a single-family dwelling on a lot with jurisdictional wetlands in Santa Rosa County, Florida, as proposed in his application submission of 1998; and Whether the Department would permit the construction of a single-family dwelling on the subject lot under conditions and circumstances other than those set forth in Briggs' application.
Findings Of Fact Briggs is the owner of Lot 67, Block H, Paradise Bay Subdivision, located in southern Santa Rosa County ("Briggs lot"). Paradise Bay Subdivision was developed in approximately 1980, prior to the passage in 1984 of the Warren Henderson Wetland Protection Act. (Official Recognition of Section 403.918, Florida Statutes). The subdivision consists of modestly priced single- family homes that are attractive to young families because of the quality of nearby schools. The typical non-waterfront home in the subdivision is single story, approximately 2,000 square feet in area, and built on a concrete slab. The typical setback from the road to the front edge of a home is 75 feet. This fairly consistent setback from the road prevents the view from one home into the adjacent property owner’s back yard and, thereby, adversely affecting the neighbor’s property value. The undeveloped Briggs lot was purchased in 1981 for approximately $15,000 and remains undeveloped. Briggs bought the lot, along with three other lots in the subdivision, as investment property. The other three lots have been sold. One of the lots sold earlier by Briggs was a waterfront lot on East Bay located in jurisdictional wetlands. The entire lot was filled pursuant to a permit issued by the Department. The Briggs lot is 90 feet wide by 200 feet deep. It is located on the south side of Paradise Bay Drive. The lots on the north side of Paradise Bay Drive are waterfront lots on East Bay. To the rear (south) of the Briggs lot and other lots on the south side of Paradise Bay Drive, is a large swamp that eventually discharges into East Bay. The major connection between the Briggs lot and East Bay is through a culvert under Paradise Bay Drive. The Briggs’ lot consists of 2,914 square feet of uplands and 15,086 square feet of state jurisdictional wetland, with all of the uplands located in the northern half of the lot. Converted to acres, the Briggs lot consists of 0.067 acres of uplands and 0.347 acres of state jurisdictional wetland. Lot 66, immediately east of the Briggs lot, has been cleared and is about half tietie swamp with the remainder consisting of uplands and disturbed wetlands. Some fill has been placed on the lot. Lot 68, immediately west of the Briggs lot, is undeveloped and consists of all tietie wetlands. Lots 69, 70 and 71 of Block H of the subdivision are undeveloped and consist primarily of wetlands. The Department issued a permit on October 31, 1996, that allowed the owners of Lot 71 to fill 0.22 acres (9,570 square feet) of wetlands. The fill is allowed to a lot depth of 145 feet on the west side, and to a width of 73 feet of the total lot width of 90 feet. The fill area is bordered on the east and west by wetland areas not to be filled. The Department issued a permit on November 13, 1997, that allowed the owner of Lot 61 to fill 0.26 acres (11,310 square feet) of wetlands. Fill is allowed over the entire northern 125 feet of the 185 foot-deep lot. On April 28, 1998, Briggs applied to the Department for a permit to fill Lot 67. The Department, in its letter of August 7, 1998, and its permit denial of September 2, 1998, erroneously described the project as consisting of 0.47 acres of fill. The entire lot consists of only 0.41 acres, of which 0.067 acres is uplands, leaving a maximum area of fill of 0.343 acres. If Briggs’ residential lot is to be used, some impact to the wetlands on the lot is unavoidable. Alternatives discussed by Briggs and the Department, three of which are still available for Briggs to accept, included the following: One hundred feet of fill with a bulkhead separating the fill from the wetland area, with no off-site mitigation; Fill pad could be placed on property with the remainder of the wetlands on the site to remain in their natural state with no backyard, with no off-site mitigation required; One hundred feet of fill with a bulkhead separating the fill material from the wetland, with a small back yard, with no off-site mitigation required. Briggs did not accept any of the foregoing alternatives or proposed acceptable mitigation measures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the permit application, provided that the parties may reach subsequent agreement regarding proper mitigation in order to make the construction of a single-family dwelling possible on the Petitioner’s property in this case. DONE AND ENTERED this 19th day of November, 2001, in Tallahassee, Leon County, Florida. _ DON W. DAVIS 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 November, 2001. COPIES FURNISHED: Charles T. Collette, Esquire Lucinda R. Roberts, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Jesse W. Rigby, Esquire Clark, Partington, Hart, Larry Bond and Stackhouse 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Application for consumptive use permit No. 75-00225 is a request for an existing use to be withdrawn from the Floridan Aquifer from two different wells. These two wells are located in the Hillsborough Basin and in Polk County. The property contiguous to the wells encompasses approximately 80.9 acres. The water is to be used for citrus processing and disposed of off site. The permit seeks, for average daily withdrawal, 2.98 million gallons per day for one well and 1.566 million gallons per day for the other well for a total average daily withdrawal of 3.864 million gallons per day. For maximum daily withdrawal the permit seeks 4.096 million gallons per day for one well and 2.792 million gallons per day for the other well for a total maximum daily withdrawal of 6.888 million gallons per day. The amount of water sought to be consumptively used by this application greatly exceeds the water crop of the subject lands owned by applicant. Mr. John C. Jennings and Mr. William Sunderland, owners of property adjacent to the Kraft property, appeared in their own behalf and stated that they felt that their wells were being hurt because of the large quantities of water pumped by Kraft. They did not attempt to offer expert testimony nor did they claim to be hydrologists. They did note that each had substantial problems with their wells running out of water.
Recommendation It does not appear that the district has had a reasonable opportunity to examine the objections and comments of Messers. Jennings and Sunderland with regard to the effect of the applied for consumptive use on their property. These objections were apparently raised for the first time at the hearing. As noted in paragraph 6, if the wells of Messers. Jennings and Sunderland are substantially affected in an adverse manner by applicant's use of such large quantities of water, such a use would not seem to be a reasonable, beneficial use as is required for permit unless further conditions were placed upon the permit. Therefore, it is recommended that the Southwest Florida Water Management District staff further investigate the effect of the applied for consumptive use on the wells located on the property of John C. Jennings and William Sunderland prior to the Board taking formal action on this application. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. 0. Box 457 Brooksville, Florida 33512 Douglas T. Moring, Esquire Kraftco Corporation Kraftco Court Glenview, Illinois 60025
The Issue Whether Centervillage Limited Partnership has demonstrated, by a preponderance of evidence, that development rights in certain real property it owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan.
Findings Of Fact Procedure. On or about August 6, 1990, Centervillage filed an Application for Vested Rights Determination with the Tallahassee-Leon County Planning Department. (Application VR0027T) The following information concerning the development of the Centervillage property was contained on the Application: "Gerald E. Songy" is listed as the "owner/agent." Question 3 lists the name of the project as "Centervillage Limited Partnership." "Progress . . . Toward Completion" is described as:(1) planning, (2) site preparation, (3) Leon County environmental permits, (4) DER Dredge and Fill Permit, (5) DOT Drainage Connection Permit. Original P.U.D., Rezoning, Minor subdivision Approval and a stormwater agreement with Leon County, are included in Centervillage's application as forms of government approvals and as the actions of government relied on prior to committing funds toward completion of the proposed development. On September 10 and 17, 1990, hearings were held to consider the Application before the Staff Committee comprised of the City Attorney, the Director of Planning for the Tallahassee-Leon County Planning Commission and the Director of Growth Management for the City. By letter dated September 17, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Centervillage that the Application had been denied. By letter dated September 28, 1990, to Mr. Gumula, Centervillage appealed the decision to deny the Application. By letter dated October 10, 1990, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on November 26, 1990. The Property. Centervillage currently owns approximately 27.20 acres of property (the Property) located at the Northeast corner of Capital Circle, Northeast, and Centerville Road, Tallahassee, Florida (Application). Centervillage began assembling the Property, through various transactions, in the early 1980's. By October, 1984, Centervillage had acquired the bulk of the Property. (T-3 p. 23) Prior to Centervillage's initial acquisition of the Property, the prior owners of portions of the Property began development of the site as an industrial, mini-warehouse development. This prior development activity involved a series of violations of state and local environmental laws and regulations. (T-3 pp. 50-51, 59) As a result of improper development activities by the prior owners of the Property, fines were imposed and, at the time Centervillage made the initial purchase, the Property was subject to a Florida Department of Environmental Regulation (DER) consent order. (T-3 p. 26) Development Activity. The project that Centervillage proposes to develop is a shopping center containing 200,000 square feet of gross leasable space on approximately 18 of the total 27.20 acres. (T-3 p. 96) The balance of the property is dedicated to stormwater facilities. (T-3 pp. 96-99) During the process of acquiring the 27.20 acres it currently owns, Centervillage began preparing the Property for future development by clearing and demolishing existing structures such as mobile homes, concrete driveways, and wells. (T-1 pp. 27-28) Permits were obtained early in the process to demolish these structures and in December 1984, the front corner of the Property was selectively cleared. (T-1 p. 28) In April, 1986, Leon County (the County) began construction of a ditch on a portion of the perimeter of the Property. The purpose of this ditch was to allow stormwater discharge from a Centerville Road construction project that the County was involved in. The County had been unable to locate an alternative site to provide any catchment and holding facility to handle the stormwater run off and, as a result, had encountered problems with the Florida Department of Environmental Regulation (DER). (T-3, pp. 70-71) At the same time, Centervillage was involved in attempting to resolve problems associated with improper development activity on the Property by its previous owners. These factors led to cooperative efforts on the part of both Centervillage and the County in dealing with the DER and to conceptual agreements between the Centervillage and the County regarding aspects of future development of the Property. Centervillage granted the County a temporary easement for the purpose of constructing the drainage ditch. (T-1 p. 28, T-3 p. 52) The drainage ditch constructed on the site turned out to be a "long, skinny holding pond." (T-1 p. 29) The County constructed over 80 percent of the overall onsite perimeter ditch in mid to late 1986. (T-1 p. 29) The property subject to the temporary easement will be conveyed to the County pursuant to a formalized conceptual agreement between Centervillage and the County. (App. Ex. G, G-8) This agreement will be the subject of expanded discussion later in this Final Order. Construction of the majority of the current improvements on the Property began in June of 1989. The work consisted of: construction of a holding pond sized for commercial development; construction of some two and a half acres of wetlands; and construction of the perimeter ditch from the north end of the project to Centerville Road, then west along Centerville Road under Capital Circle. (T-1 pp. 30-31) The work also included vegetation of the perimeter ditch to create wetlands. (T-1 p. 31) This development activity also involved the placing of 50,000 to 60,000 cubic yards of fill material on the site. (T-1 p. 30) In May and June of 1989, Centervillage acquired over six acres of adjoining property in order to construct a stormwater facility which it had agreed to provide as part of its conceptual agreements with the County and in partial mitigation against prior improper development on the Property. (App. Ex. H, H-2; T-1 p. 11; T-3 pp. 125-126; T-3 pp. 26-27) The two and a half acres of new wetlands Centervillage constructed on the property was also in mitigation for prior improper development activity engaged in by previous owners of the Property. (T-1 p. 30) Further development has been permitted but not constructed. This work is to involve the construction of culverts, crossings, and onsite, upland filtration facilities. (T-1 pp. 31-32) As a result of the 1989 development activity, the northern 7.57 acres of the property has been excavated for the stormwater facility and some 18 acres of the Property have been filled from depths of two to six feet. (T-3 p. 97) Government Approvals. In July, 1984, the City approved Centervillage's request for a Planned Unit Development (P.U.D.) to allow the Property to be developed as a shopping center to be constructed in three phases. Each phase of construction was to involve 50,000 square feet of retail space. (App. Ex. G, G-1) In December, 1984, the City approved an amendment to the previously approved P.U.D., to add additional property and to expand the size of the development by the addition of approximately 20,000 square feet of retail space. (App. Ex. G, G-2) In January, 1988, Centervillage received rezoning approval from the P.U.D. to Commercial Parkway, limited use site plan (CP zoning). (App. Ex. G, G-3; T-3 pp. 25-26) The limited use site plan outlines, among other things, the limited access to the Property and the reestablishment of the canopy road on portions of Centerville Road which abut the property. (App. Ex. G, G-3) In May, 1988, the City approved Centervillage's application for minor subdivision approval. This minor subdivision approval established one parcel as the previously developed mini-warehouse site to the east of the Property and the other parcel as the Property as it currently exists except for 2.79 acres on Capital Circle which had not been acquired at that time. (App. Ex. G, G-4) In October, 1988, the City granted a separate minor subdivision approval which addressed the additional 2.79 acres. (Minor subdivision approval, dated October 26, 1988, signed by Donny Brown, Development Coordinator for the City.) The parcel containing the mini-warehouse facility was sold in 1986, and is no longer part of the Property. (T-1 pp. 37-38) On July 22, 1988, the DER issued an environmental permit to Centervillage. (App. Ex. E, E-9) This permit was a result of extensive negotiations between DER and Centervillage and also involved the County because of the County's own permitting problems with the road improvement Project. (T-1 pp. 63-65) This DER permit specifies that the "permit does not convey any vested rights." (App. Ex. E, E-9, paragraph 3) On August 17, 1988, the County issued Environmental Management Permit #88-0299 to Centervillage. This permit was for "earth work only" and specified that "stormwater runoff [would] be required upon final development plans." (App. Ex. E, E-1) On October 25, 1988, the County accepted Centervillage's hydrological analysis on the Property. (App. Ex. E, E-3) On December 5, 1988, Centervillage received notification from the County that the project site was exempt from site plan review. (App. Ex. E, E- 9) Currently, there is not a city-approved site plan for the Centervillage project. (T-3 p. 115) On May 3, 1989, the County issued Environmental Permit #89-0230. This permit reflects approval of an additional of 630,000 square feet of impervious surface to the site. Centervillage's application for this permit also lists the proposed use of the Property as "M-1 mini-warehouses and CP shopping center." (App. Ex. E, E-5) Centervillage began its construction of the majority of current site improvements in June of 1989. (T-1 p. 30) In meetings between Centervillage and the City it was never confirmed that the approval of an additional 630,000 square feet of impervious surface on the site was a valid assumption. (T-3 p. 138) The County issued two additional environmental permits in 1989, one for tree removal (App. Ex. E, E-6) and one for stormwater permit amendments. (App. Ex. E, E-7) In March, 1990, the County issued an additional environmental permit for tree removal. (App. Ex. E, E-8) In January and in June, 1990, the Florida Department of Transportation (DOT) issued two separate drainage connection permits to Centervillage. (App. Ex. E, E-10, E-11) Until October, 1990, the County performed the environmental regulatory services for both the County and the City. (T-3 p. 56) At the time the County issued the environmental permits described in this Final Order, there was no City of Tallahassee Environmental Ordinance. (T- 3 pp. 73-74) At the time the County issued the environmental permits described in this Final Order, the County Chief of Environmental Management regularly appeared before the Tallahassee City Commission as part of his duties in issuing environmental permits for property within the City. (T-3 p. 56) At the time the County environmental permits described in this Final Order were issued to Centervillage, the City would look to a County environmental permit before issuing a building permit. (T-3 p. 74) At the November 26, 1990, hearing in this case, the Chief of Environmental Management for the County testified that he knew of no specific resolution or ordinance that granted environmental permitting authority within city limits to the County. (T-3 pp. 74-75) However, the testimony at the November 26, 1990, hearing in this case establishes that the City relied on the County's environmental permitting in making its own permitting decisions. (T-3 pp. 56, 73-75) In practice and effect, the County was acting on behalf of the City in granting local environmental permits. (T-3 pp. 73-80) The County has never been delegated the authority to make land use decisions, such as subdivision approvals, for property within the City. (T-3 pp. 74-76) The rezoning of the Property from P.U.D. to CP Zoning, approved by the City in January, 1988, provided no specific approval of densities and intensities for development of the Centervillage project. (T-3 pp. 130-132) When Centervillage requested rezoning of the Property from P.U.D. in January, 1988, its managing general partner assumed that as part of the approved zoning change it received approval for the same density and intensity of development that existed under the P.U.D. (T-3 p. 125) The Conceptual Agreement. In early 1986, the County was in the process of attempting to widen and improve Centerville Road. (T-1 p. 28) During this construction by the County, the DER asserted jurisdiction over the road project and the construction was stalled because the County did not have adequate property on which to construct facilities for the storage and treatment of stormwater runoff generated by the road construction project. (T-3 pp. 70-71, 82-84) During the initial rezoning and permitting process, Centervillage was required to address the effects of prior improper development activity engaged in on a portion of the Property by previous owners. As a result of the prior improper development on the Property, Centervillage was required to mitigate against flooding problems and to facilitate revegetation of a denuded canopy road segment along Centerville Road. (T-3 p. 52) On April 11, 1986, James G. Parrish, Administrator for the County, presented Centervillage with a conceptual agreement whereby, among other things, Centervillage agreed to grant necessary easements to the County for the construction of a drainage ditch on the Property to accept and store stormwater runoff from the County's Centerville Road improvement project. (App. Ex. G, G- 6) During 1986, the County and Centervillage cooperated through a series of permitting contacts specific to the development of a shopping center, to establish a major regional water management facility, to provide water management for the Centerville Road project, and to engage in cooperative efforts to reforest the canopy road. (T-3 pp. 52-53) These cooperative permitting contacts included contacts with the DER. (T-3 p. 53) The conceptual agreement was finally formalized and adopted by the Leon County Commission on July 18, 1989. (App. Ex. G, G-8) In this agreement, Centervillage obligated itself to acquire additional property, construct a stormwater management facility and to convey the completed facility to the County. (App. Ex. G, G-8) In the formalized conceptual agreement, the County agreed to fully cooperate in the efforts of Centervillage to obtain all permits necessary to complete all improvements in accordance with the DER permit issued to Centervillage in July, 1988. (App. Ex. G, G-8) The formalized conceptual agreement further provides that the County will not require any additional stormwater retention or detention above that required by the County environmental permit issued to Centervillage previously. (App. Ex. G, G-8) The agreement also provides that the County will allow Centervillage to develop the southwest portion of the Property, fronting Capital Circle Northeast and Centerville Road," to its fullest commercial potential, subject only to existing zoning ordinances, terms and conditions of the limited use site plan, approval of subsequent short-term applications for environmental management permits, and Leon County Environmental Permit number 88-0299." This portion of the agreement also provides that the property will no longer be "protected from development." (App. Ex. G, G-8, paragraph 8) Centervillage is obligated, pursuant to the agreement, to convey in excess of 7 acres of property and the drainage ditch area for no additional consideration. (T-3 pp. 85-86) Absent the agreement of Centervillage to provide stormwater drainage and retention on the Property and to convey that portion of the Property to the County, the County could not have completed the Centerville Road improvement project. (T-3 pp. 70-71) Centervillage's agreement to donate land to the County was tied to the DER permits issued to both Centervillage and the County. (T-1 p. 41) Centervillage's agreement to provide the 7.57 acre stormwater facility to the County was a required condition in connection with the issuance of the environmental management permit issued by the County. (T-3 p. 88) The City was privy to the conceptual agreement between Centervillage and the County from the development stages through to its final, formal approval by the County Commission in July 1989. The plans for the stormwater facility were discussed with and reviewed by the City, with the understanding that the city would accept and maintain the facilities. (T-3 pp. 86-87) During these discussion with City personnel, there was no indication given that the agreement included land use decisions. (T-3 pp. 90-91) The 7.57 acre stormwater facility serves more than the development area. The facility is a major component of the total drainage system for the City of Tallahassee. (T-3 p. 88) The size of the 7.57 acre stormwater facility is not directly related to the Centervillage development proposal. (T-3 p. 90) Development Expenses. The cost of purchasing the original tract was $1,812,012.00. Centervillage has since sold a portion of the original tract for $738,282.00. Centervillage's net land costs for the Property are $1,073,730.00. (App. Ex. C, C-1) Centervillage incurred costs of $175,000.00 in purchasing land pursuant to the conceptual agreement with the County. (T-3 pp. 123-126) Other than the $175,000.00 expended pursuant to the conceptual agreement, the balance of costs of purchase of land were not incurred in reliance on any act or omission of the City. Interest and property taxes paid by Centervillage were $1,279,753.30. (App. Ex. C, C-1) No significant portion of the costs attributed to interest and property taxes were incurred in reliance on any act or omission of the City. Centervillage incurred $543,624.50 in costs associated with site work, clearing, and landscaping on the Property. Significant portions of these costs were incurred beginning in June, 1989. (T-1 pp. 30-31) These costs were substantially incurred after Centervillage had engaged in extensive negotiations with state and local government entities and after permits were issued by the state DER and DOT as well as environmental permits issued by the County. At the time the County issued these permits it was, in practice and effect, acting on behalf of the City. These negotiations, agreements, permits and approvals are outlined in the Government Approvals portion of this Final Order. Centervillage has established that it expended well in excess of $400,000.00 on testing, inspection, soil investigation, engineer and survey fees, architectural fees, legal and title fees and general development expenses associated with the development of the Property. (App. Ex. C, C-1) Centervillage has proved that a significant portion of these "soft costs" were expanded during the period it engaged in extensive negotiations with and after Centervillage obtained permits and approvals from the various state and local government entities as outlined in the Government Approvals portion of this Final Order. Centervillage would not have made the large expenditure of funds, or made the commitment to convey significant portions of the property to the County pursuant to the Conceptual Agreement if it had not obtained the zoning approvals and environmental permits that were necessary to construct a community size shopping center of approximately 200,000 square feet. (T-1 pp. 68-70; T-3 pp. 127-128) The evidence in this case establishes that Centervillage reasonably relied on the approvals and environmental permits it obtained from state and local governments, as well as on the conceptual agreement between Centervillage and the County in changing its position and in incurring substantial costs associated with the development of the Property. Current Status of the Development. Centervillage took a site that was a drainage way, added properties to it, accomplished an enormous amount of permitting and fill work to come up with a fairly level buildable site suitable for building anything allowed within the zoning and the Comprehensive Plan. (T-1 p. 18) The shopping center project has been pursued by Centervillage for the past several years. Centervillage has never proposed any alternative plans to the City or other governmental authorities in the history of its project. (T-3 pp. 57-60, 82; T-1 pp. 17-18) Environmental Management Permit #89-0230, issued on May 3, 1989, by the County, contemplated approval of the addition of 630,000 square feet of impervious surface to the Property. (App. Ex. E) Centervillage relied on this approval and incurred substantial costs in proceeding with the further development of the Property. At the hearing on November 26, 1990, Centervillage presented the testimony of Richard Moore, a licensed professional engineer. (T-3 p. 94) Mr. Moore has been involved with the Centervillage project for seven years. (T-3 p. 95) Mr. Moore testified that he prepared a layout based on several planning concepts on engineering design and determined that 630,000 square feet of impervious surface allowed 200,000 square feet of gross leasable space and allowed the development of adequate parking with good internal circulation and sufficient green areas to allow for aesthetic landscaping. (T-3 pp. 106-107) Mr. Moore further testified that this square footage ratio is on average with design standards accepted in the engineering community. (T-3 p. 107) According to Mr. Moore's testimony, if Centervillage is required to meet consistency and concurrency requirements of the 2010 Comprehensive Plan, the shopping center development could be limited or delayed because the Property is located on a constrained roadway. (T-3 pp. 103-106) The DOT and the City have scheduled widening of Capital Circle, on which the Centervillage Property fronts, for 1991. (T-3 pp. 109-110) However, based upon Mr. Moore's testimony, Centervillage has established that constrained roadway limitations could limit or delay the project under the 2010 Comprehensive Plan despite the current improvement schedule. According to Mr. Moore's testimony, under the 2010 Comprehensive Plan, the proximity of the Property to Centerville Road, a canopy road, could limit the development of a shopping center to 100,000 square feet of leasable space. (T-3 pp. 103-104) As of July 16, 1990, the date of adoption of the City of Tallahassee Vesting Ordinance, the stormwater facilities on the Property were not complete. Additional water treatment facilities must still be constructed for runoff from the site. (T-3 pp. 19-21) No roadways, water and sewer services or electrical services have been constructed on site. (T-3 p. 108)
Findings Of Fact Petitioner is the owner of several acres of land which are a part of a platted subdivision in Orange Park, Florida. At an undisclosed date in 1979, Petitioner orally applied to the Clay County Health Department for septic tank permits for Lots 3, 4, 5N, and 5S. The only documentation submitted with his application was a site plan for Lot 5S. By letters of March 26 and 30, 1979, the Clay County Health Department advised the Petitioner that his application was denied because the lots were not in compliance with specified provisions of Chapter 381, Florida Statutes, and Chapter 10D-6, Florida Administrative Code. By letter of May 3, 1979, Petitioner requested an administrative hearing to contest the denial of his application. At the hearing, officials of the Clay County Health Department predicated the denial on the fact that the lots in question were not sufficiently large to permit the required setbacks imposed by law and regulation. (Testimony of Bray, Hickey, Exhibits 1-3) A stream runs in an easterly direction across the property in question to the St. Johns River which lies approximately 300 years to the east of the property. A curved extension of the stream located on Lot 4 has been filled at some time in the past. A pond is located at the center of Lots 5N and 5S. The size of the lots vary from over one-third to less than one-half acre. The City of Orange Park has a 20 foot wide easement on both sides of the stream bed for maintenance purposes. The easement precludes the construction of permanent structures but does not proscribe other uses of the land area. There is not a public water supply or sewage disposal system available at the present time, although an artesian well located on adjacent Lot 2 provides water for homes which have previously been constructed on that lot and adjacent Lot 1. It is adequate to supply water needs of the lots in question. However, local health officials informed Petitioner that the artesian well cannot be used as a central water supply for the additional lots. Petitioner proposes to install individual septic tanks and drainage fields on each of the lots. Service easements are also located on Lots 4,5, and 5S. (Testimony of Petitioner, Exhibits 1,4) By exclusion of the easement area on all four lots, together with the pond area of 4,000 square feet on Lot 5N and 3,000 square feet on Lot 5S, the remaining land area of Lots 3 and 4 is more than one-third but less than one- half acre each in size. Lot 5S is slightly less than one-quarter acre in size. Lot 5D is slightly less than one-quarter after exclusion of the pond and easement area. (Testimony of Bray, Exhibit 4) There is sufficient area in Lots 3 and 4 to provide for set back requirements for individual sewage disposal facilities, i.e., not within five feet of property line or within fifty feet of the high water line of lakes, streams, or other waters, as provided in Rules 10D-6.24(3) and (4), F.A.C., respectively. There is sufficient area in Lots 5N and 5S to meet the above setback requirements when consideration is given to the area necessary for septic drain fields. (Testimony of Bray, Exhibit 4)
Recommendation That Petitioner's application for septic tank permits be denied. DONE and ENTERED this 6th day of September, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert D. Woolverton 3551 St. Johns Avenue Jacksonville, Florida 32205 Robert M. Eisenberg, Esquire District IV Counsel Post Office Box 2417F Jacksonville, Florida 32231
Findings Of Fact On or about August 11, 1987, an application for conditional use approval to allow on-premises consumption of alcoholic beverages (2COP) was filed on behalf of Leland Farnsworth for property located at 2838 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG) and single family residential (RS-8). A public hearing before the Planning and Zoning Board was held on September 1, 1987. The Planning and Zoning Board voted 4-1 to grant conditional use approval for this application. A timely appeal was taken by Petitioners on September 15, 1987. Petitioners are surrounding property owners whose property is located within five hundred feet of the subject property. With this application, Farnsworth seeks approval for on-premises consumption of alcoholic beverages since he intends to convert the use of the property from a motel to a restaurant and bar. The parties stipulated that the property in question is within five hundred feet of several residences, including Petitioners'.
The Issue Whether the Appellant, Devoe L. Moore, has demonstrated, by a preponderance of the evidence, that development rights in certain real property he owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On September 18, 1987, Devoe Moore acquired a tract of approximately 28 acres of real estate (hereinafter referred to as the "Property"), located on Lake Bradford Road just south of Gaines Street, in the City of Tallahassee, Leon County, Florida. The Property was the former location of the Elberta Crate and Box Company. The Property was at the time of purchase, and still is, zoned M-2, Industrial. Development of the Property. Mr. Moore intended to develop the Property consistent with the Property's M-2, Industrial zoning. Mr. Moore intended to build a service/commercial/mini-storage development similar to another such development of Mr. Moore in the City. In December, 1987, Mr. Moore had his engineer prepare grading and drainage plans for the Property. On January 29, 1988, Mr. Moore had an application for an amendment to a stormwater permit, Environmental Management Permit 87-1087, filed with the Leon County Department of Public Works. At that time, Leon County issued such permits for property in unincorporated areas and inside the City's limits. The grading and drainage plans for the Property were filed with the application. Leon County had not been delegated any responsibility or authority to make land-use decisions for the City. The requested amendment to Permit 87-1087 was based on an assumption of Mr. Moore that the Property would consist of 80% coverage with impervious surface. Therefore, the City was aware or should have been aware that Mr. Moore intended to construct a major development on the Property. Such a development was consistent with the zoning on the Property at the time. Neither Leon County nor the City, however, approved or in anyway addressed the issue of whether 80% coverage of the Property with impervious surface was acceptable. Nor did the City or Leon County make any representation to Mr. Moore different from that made by the City's zoning of the Property. Mr. Moore filed a site plan showing a development of 80% coverage with the application for amendment to Permit 87-1087. These plans showed a development consisting of thirteen rectangular buildings, driveways and parking area. The indicated development, however, was not reviewed or in anyway approved by Leon County or the City. On May 6, 1988, a Stormwater Permit, amending Permit 87-1087, was issued to Mr. Moore. This permit only approved the construction of a holding pond and filling on the Property. The issuance of the permit did not constitute approval of any proposed development of the Property. In 1988, Mr. Moore began clearing the Property of buildings on the Property which the City had condemned. Mr. Moore also began filling and grading the Property in 1988, and has continued to do so to varying degrees through July 16, 1991. From January 1989, through August, 1990, SANDCO placed 1,174 loads of fill on the Property. Jimmy Crowder Construction Company has also performed filling and grading work on the Property since 1988. As of the date the City's vesting ordnance was adopted and as of the date of the hearing before the Division of Administrative Hearings Mr. Moore has not completed filling on the Property. Mr. Moore also has not completed filtration improvements to the storm water hold pond to be constructed on the Property. Additional water treatment facilities on the Property must be constructed to handle runoff from the Property. No roadways, water services, sewer services or electric services have been constructed on the Property. Site preparation on the Property has not been completed so that construction of vertical improvements can begin. At the time that Mr. Moore acquired the Property, only building permits were required for the development of the Property. The evidence failed to prove that Mr. Moore obtained the required building permits. The law was changed, however, to require approval of a site plan. Mr. Moore decided not to submit a site plan at least in part because of the City's work on the sewer main. The weight of the evidence, however, failed to prove that Mr. Moore was prohibited by the City from obtaining site plan approval. The City has not approved or reviewed a site plan for the Property. At the time Mr. Moore purchased the Property, and continuing to the present, a City sewer main which runs along the southern border of the Property has been a problem. The sewer main is a health hazard because it is located in proximity to the surface of the ground and it has numerous leaks. The City indicated that it intended to build a new sewer main across the Property and Mr. Moore agreed to give the City an easement for the sewer main. After Mr. Moore purchased the Property and before February, 1989, Mr. Moore made a number of requests to the City that the City identify the easement it desired and prepare the easement grant so that the City could construct the new sewer main and Mr. Moore could proceed with his development. Requests were also made by some City employees of the City Attorney that the easement be prepared and executed because of the problem with the existing sewer main. In April, 1989, the easement grant was prepared and executed. On August 3, 1990, James S. Caldwell, Assistant Director of the City Water and Sewer Department, wrote the following letter to Mr. Moore: It has been brought to my attention that your are proceeding with construction of a stormwater holding pond on the referenced site [the Elberta Crate Site]. As discussed with you this date and as you are aware, the City has a sewer line on this property. The sewer line would be damaged by your construction activity. The City has designed a relocation and upgrade of the sewer line to be constructed on an easement previously acquired from you. Our schedule for the sewer line construction is completion by January 1, 1991. A review of your stormwater holding pond drawings and the proposed sewer line reveals a potential conflict between the proposed line and the holding pond. We shall have City staff stake out and flag the existing sewer line and the proposed sewer line. We are requesting that your construction activity stay away from the existing sewer line. After stakeout of the proposed sewer line, you may check your stormwater pond plans to assure that there is no conflict. [Emphasis added]. Mr. Moore was also told on other occasions to avoid interfering with the existing sewer line and the construction of the new sewer line. Construction of the new sewer main on the Property was not commenced until January, 1991. The construction had not been completed as of March, 1991. Part of the delay in completing the sewer main was caused by contemplated changes in the location of the sewer main and the possible need for a different easement. The weight of the evidence failed to prove that Mr. Moore was told to cease all activity on the Property. Costs Incurred by Mr. Moore. Mr. Moore paid approximately $1,000,000.00 for the Property. The weight of the evidence failed to prove that this cost was incurred in reliance upon any representation from the City as to the use the Property could be put other than the existing zoning of the Property. Mr. Moore spent approximately $247,541.22, for demolition of existing buildings, site clearing and grading, engineering costs, fill, permitting fees and partial construction of the stormwater management system for the Property. Mr. Moore also donated an easement to the City with a value of approximately $26,000.00. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the existing zoning of the Property and the stormwater management permit. Mr. Moore also incurred approximately $100,000.00 in expenditures similar to those addressed in the previous finding of fact for which Mr. Moore was unable to find documentation. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the zoning of the Property and the stormwater management permit. Development of the Property Under the 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property appears to meet the concurrency requirements of the Tallahassee-Leon County 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property, however, appears to be inconsistent with the 2010 Plan because the Future Land Use Element district in which the Property is located does not permit industrial uses and the intended industrial use of the Property is incompatible with some of the uses to which adjacent property has been put. Procedure. Mr. Moore filed an Application for Vested Rights Determination prior to the filing of the application at issue in this proceeding. That application was denied by the City on October 16, 1991. In the first application Mr. Moore indicated that the Property was to be used for student housing. On or about November 13, 1991, Mr. Moore filed an Application for Vested Rights Determination (hereinafter referred to as the "Application") (Application VR0295T), with the City. "Devoe L. Moore" was listed as the owner/agent of the Property in the Application. It is indicated that the project at issue in the Application is "[i]ndustrial development of former Elberta Crate and Box Company site by Devoe L. Moore." "Progress . . . Toward Completion" is described as (1) Owner/contractor estimate; (2) Environmental Management Permit; (3) Site preparation from December, 1987, to the date the Application was filed; and (4) Construction of the stormwater system in 1990. In a letter dated February 6, 1991, Mr. Moore was informed that his Application was being denied. By letter dated February 18, 1991, Mr. Moore requested a hearing before a Staff Committee for review of the denial of his Application. On March 11, 1991, a hearing was held to consider the Application before the Staff Committee. The Staff Committee was comprised of Jim English, City Attorney, Mark Gumula, Director of the Tallahassee-Leon County Planning Department and Buddy Holshouser, Director for the City's Growth Management Department. At the conclusion of this hearing the Staff Committee voted 2 to 1 to deny the Application. By letter dated March 19, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, informed Mr. Moore that the Application had been denied. By letter dated April 4, 1991, to Mr. Gumula, Mr. Moore appealed the decision to deny the Application. By letter dated July 3, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on August 27, 1991. F. Other Projects Approved by the City. Mr. Moore submitted, without objection from the City, other vesting rights applications and final orders concerning such applications which were ultimately approved by the City. All of those cases are distinguishable from this matter. See the City's proposed finding of fact 30.
The Issue Whether the Planning Commission deviated from essential requirements of law in denying Appellant's application for a special use permit to operate a car rental agency at 2576 Harn Boulevard, Clearwater, Florida.
Findings Of Fact Manual Kastrenakes, d/b/a Pinellas Rent-A-Car, Appellant, purchased the property which is the subject of this appeal in 1989. Prior to this purchase, the property was the site of a Farm Store, which has been vacated. Appellant also owns a filling station in the vicinity of this property which is legally operated and is in compliance with all zoning requirements. The property is zoned CH (highway commercial). Within Highway Commercial Districts, outdoor retail sales, displays and/or storage are permitted as conditional uses. Section 135.129(11), City of Clearwater Land Development Code. Objections to the granting of this conditional use permit come from residents of multifamily residential buildings adjacent to and west of the property in issue. Many of those residents are retired and/or infirm and contend they will be disturbed by the operation of a rental car business "in their back yard." To counter some of these objections, Appellant agreed to conditions being imposed on this permit limiting hours of operation, lighting, paving, buffer zones, and parking. Protestants also contend that operating the business would depreciate the value of their property, but no credible evidence was presented to support this position. Appellant has further agreed that disabled or wrecked vehicles will not be stored on this property, and only fully operable rental automobiles will be stored and/or displayed on this property.
The Issue This proceeding concerns an Intent to Issue a dredge and fill permit given by the Department of Environmental Regulation ("DER") to Respondent, Edmund Burke ("Burke"), for construction of a retaining wall and wooden pile-supported bridge crossing a portion of the South Fork of the St. Lucie River in Martin County, Florida. The ultimate issues for determination are whether Petitioner has standing to challenge the proposed DER action, and if so, whether the proposed agency action complies with the requirements of Sections 403.91 through 403.938, Florida Statutes, and applicable rules.
Findings Of Fact Respondent, Edmund Burke, on January 15, 1988, filed with the Department of Environmental Regulation ("DER") application number 431441608 for a permit to construct a permanent, pile supported, wooden bridge approximately 80 feet long and 10 feet wide connecting the mainland with an island in the South Fork of the St. Lucie River in Martin County, Florida. The bridge was to span a 50 foot canal or creek ("channel") in the River. One of two retaining walls was to be located on the mainland peninsula. The other retaining wall was to be located on the island (the "initial project"). Between January 15, 1988, and April 28, 1989, the initial project was modified by Respondent, Burke, to satisfy DER concerns over potential impacts, including secondary impacts, relevant to the application. The width of the bridge was reduced from 10 feet to 6 feet. The retaining wall initially planned at the point where the bridge intersects the island was eliminated. The retaining wall on the mainland side of the bridge was relocated above mean high water. Sixty feet of the proposed bridge runs from mean high water to mean high water. An additional 10 feet on each end of the bridge is located above mean high water. The project remained a permanent, pile supported, wooden bridge (the "modified project"). The Intent to Issue, dated April 28, 1989, indicated that the modifications required by DER had been made, that the modifications satisfied DER concerns relevant to the initial project, and that DER intended to issue a permit for construction of the modified project. The elimination of the retaining wall obviated any necessity for backfill on the island. The reduction in the width of the bridge virtually eliminated the secondary impacts on the surrounding habitat, resulted in less shading of the water, and precluded vehicular traffic over the bridge. The final modification that was "necessary in order for [DER] to approve this application" was the reduction in the width of the bridge from 10 feet to 6 feet. Petitioner's Exhibit 17. DER's requirement for this final modification was communicated to Mr. Cangianelli in a telephone conversation on April 6, 1989 (Petitioner's Exhibit 18), and memorialized in a letter to Respondent, Burke, on April 14, 1989 (Petitioner's Exhibit 17). The final modification was made, and the Intent to Issue was written on April 28, 1989. Petitioner's Case. Property commonly known as Harbor Estates is adjacent to the site of the modified project. A constructed harbor and contiguous park are located within the boundaries of Harbor Estates. Both are used by residents of Harbor Estates and both are proximate to the site of the modified project. The harbor entrance and site of the modified project are located on opposite sides of a peninsula approximately 40 feet wide and approximately 125 feet long. Boats operated by residents of Harbor Estates that can navigate under the modified project need only travel the length of the peninsula, a distance of approximately 125 feet through the channel, in order to reach the harbor entrance. Boats operated by residents of Harbor Estates that cannot navigate under the proposed bridge must travel around the island, a distance of approximately 1800 feet in the main body of the St. Lucie River, in order to reach the harbor entrance. However, Petitioner presented no evidence that prior to the construction of the bridge the channel was navigable by boats not capable of passing under the bridge after the bridge was completed. Petitioner, Harbor Estates Associates, Inc., submitted no evidence to show facts necessary to sustain the pleadings in the Petition concerning the inadequacy of modifications required by DER. Of Petitioner's 26 exhibits, Exhibits 1-19, 24 and 25 were relevant to the initial project but were not material to claims in the Petition concerning the inadequacy of the modifications required by DER. Petitioner's Exhibit 20 was cumulative of DER's Exhibit 6B. Petitioner's Exhibits 22 and 26, respectively, concern a 1980 bridge permit and a Proposed Comprehensive Growth Management Plan for Martin County, Florida. Petitioner offered no expert testimony in support of the pleadings in the Petition including assertions that: the modified project will have a direct adverse impact upon water quality and the welfare or property of others; the channel is navigable by deep-draft motor vessels; the modified project will result in shoaling that will have to be corrected at the expense of Harbor Estates; the modified project will result in prohibited destruction of mangroves; or that the modified project will cause any of the other specific adverse effects described in the Petition. The testimony of fact witnesses called by Petitioner was not material to Petitioner's claims that modifications required by DER were inadequate. The testimony of Bob Nicholas was relevant to allegations of prior violations but was not dispositive of any issue concerning the adequacy of modifications required by DER. The testimony of William Burr was admitted as rebuttal testimony relevant to precedents in the general area of the modified project but failed to address the adequacy of modifications required by DER. Petitioner consistently demonstrated a lack of knowledge of the applicable law, the proper scope of the formal hearing, and the distinction between argument and evidence. Petitioner repeatedly attempted to establish violations of laws not relevant to the proceeding including local laws and other environmental laws. Petitioner attempted to establish issues by arguing with witnesses during direct and cross examination, and by repeatedly making unsworn ore tenus representations of fact. There was a complete absence of a justiciable issue of either law or fact in this proceeding because Petitioner failed to show facts necessary to sustain the pleadings. Petitioner presented no evidence refuting Respondent, Burke's, showing that the modifications required by DER were adequate to assure water quality and the public health, safety, or welfare, or the property of others. Evidence presented by Petitioner was not material to the issue of whether the modifications required by DER were adequate for the purposes of the law applicable to this proceeding. Therefore, Petitioner participated in this proceeding for a frivolous purpose, primarily to cause unnecessary delay, or to needlessly increase the cost of licensing or approval of the proposed activity. Respondents' Case. The island to be accessed by the modified project is approximately 2.5 acres in area and contains mostly wetland. The island is approximately 900 feet long. The portion of the island that is beyond DER permit jurisdiction is less than 200 feet long and less than 50 feet wide. The site of the modified project is located in Class III waters. Respondent, Burke, provided adequate assurances that portions of the modified project not extending over open water will be constructed upon property owned by him. The single retaining wall to be constructed at the southeastern terminus of the modified project will be constructed landward of DER jurisdiction. The modified project permits neither the installation of water or electrical conduits to the island nor any excavation, filling, or construction on the island. Respondent, Burke, must provide notification to DER before any such activity is begun. The bridge will accommodate no vehicular traffic larger or heavier than a golf cart. Golf cart access is necessary in order to accommodate a physical disability of Respondent, Burke. The modified project employs adequate methods to control turbidity, limit mangrove alteration on the island, and limit potential collisions with manatees. Vegetation, including mangroves, will not be removed. Incidental, selective trimming of vegetation will be allowed to create access to the island. The single retaining wall to be constructed on the mainland will be located landward of mangroves. Turbidity curtains will be used during construction to minimize short term water quality impacts. The modified project requires turbidity screens to be installed if there is any indication of sedimentation. No mechanical equipment will be located on the island during construction. No boats will be moored at the site of the modified project. The modified project will cause no significant downstream shoaling or silting. The site of the modified project is located approximately 15 feet from an existing fishing platform. No significant shoaling has been associated with that platform. The impacts associated with the modified project are similar to the impacts associated with single family docks in the area. No significant shoaling has been associated with such docks. The modified project is not a navigational hazard. The elevation is sufficient to accommodate small boats, canoes, and row boats. Reflective devices are required to alert night boat traffic of its presence. There is adequate clearance under the bridge to prevent obstruction. DER reviewed all applicable rules and criteria in considering the modified project. The modified project will have no adverse effect upon public health, safety or welfare, or the property of others. The modified project will not adversely impact the conservation of fish, wildlife, or their habitats. The modified project will not adversely affect navigation, the flow of water, or cause harmful erosion or shoaling. The modified project will not adversely impact fishing value or marine productivity in the area. The modified project will have no adverse impact upon recreational values in the vicinity. The modified project was reviewed in a manner that is customary for similar projects reviewed by DER. It is common practice for DER employees, as they did in this case, to rely upon opinions of other DER professionals in formulating an intent to issue. Other projects within DER jurisdiction in the general geographic area of the modified project and within the same region were considered in DER's review process. Other docks and marinas have been constructed and are proposed for construction within the South Fork of the St. Lucie River. Bridges including pedestrian bridges have been and are proposed to be constructed in Martin County. DER did not require a hydrographic study because the modified project was considered a minor project. DER review took into account the intended future use of the island property and DER's past experience with Respondent, Burke. As part of its review, DER reviewed a conceptual bridge to a single family residence on the island which would not require any fill or construction of retaining walls. In addition, DER considered previous violations on the island under Florida Administrative Code Rules 17-4.070, 17-4.160, and 17-4.530 in connection with an earlier permit that expired before the initial project was begun. Respondent, Burke, provided reasonable assurances that he is the owner of the site of the proposed project. Respondent, Burke, signed DER's property ownership affidavit and submitted a survey. DER's Intent to Issue does not authorize any construction in any area within the jurisdiction of DER other than the modified project. The Intent to Issue constitutes compliance with state water quality standards. DER has not received any requests for a jurisdictional determination in the general geographic area of the modified project. No enforcement action has been initiated by DER or at the request of a third party against Respondent, Burke, for alleged violations of DER rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order on the merits issuing the requested permit and awarding reasonable attorney's fees and costs in accordance with this Recommended Order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April, 1990. DANIEL MANRY 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 4th day of April, 1990. APPENDIX Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Although most of Petitioner's proposed findings were cast in the form of "fact", they were in substance argument and rejected accordingly. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Included in part in Finding 1 Findings as to ownership are rejected as beyond the jurisdiction of the undersigned. Finding as to the late filed exhibit is rejected as irrelevant. 2-4, 10-12, Rejected as either irrelevant 16, or not supported by the record. 5 and 6, 37, 40 Rejected as unsupported by 42 the record. 7, 8, 15 Rejected as irrelevant 17, 21-29 and immaterial 9, 13, 14, 18-20 Rejected as immaterial 30-33, 35 and 36 37(a), 38, 39, 41, 48 20(A) Rejected as irrelevant and immaterial except the last sentence is included in Finding 13 34 Included in Finding 12 Rejected as not supported by the record, hypothetical and immaterial. Rejected as not established by clear and convincing evidence. Respondent, Burke, has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Respondent. Burke's, Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 15 and 16 Included in Finding 1 17, 26, 27 Included in Finding 2 18, 48 Included in Findings 15 and 16 19, 30, 31, 42 Included in Finding 13 20, 21, 44 Included in Findings 4 and 14 22, 23, 25, 32 Included in Finding 17 24 Included in Finding 16 25, 36-38 Included in Finding 17 Included in Finding 18 Included in Finding 3 Included in Finding 10 Included in Finding 19 35, 39, 43 Included in Finding 20 40, 41 Included in Finding 11 45-47 and 49 Included in Finding 16 51 and 52 Included in Findings 6-8 54 Included in Finding 5 and 8 50 and 53 Rejected as irrelevant and immaterial Respondent, DER, has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 2 Included in Findings 1 and 2 3 Included in Finding 10 4 and 5 Included in Finding 16 6, 9 Included in Finding 2 7 and 8 Included in Findings 9 and 11 10 Included in Finding 13 11 Included in Finding 15 Included in Finding 17 and 14 Included in Finding 16 COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Patricia E. Comer Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Patricia V. Bartell Qualified Representative 615 S.W. St. Lucie Street Stuart, FL 34997 J. A. Jurgens Jones, Foster, Johnson & Stubbs, P.A. 505 South Flagler Drive West Palm Beach, FL 33402
The Issue The issue is whether Respondent Crestwood Lakes Associates provided reasonable assurance that a modification to a conceptual surface water management permit complies with the permit criteria contained in statutes and rules.
Findings Of Fact Background This case involves a 900-acre parcel in the Loxahatchee Slough, west of the Florida Turnpike in Palm Beach County (County). Although the property occupies part of a slough, all of the wetlands in this case are isolated wetlands. Respondent Crestwood Lakes Associates (Applicant) owns the south 503 acres, Petitioner owns the north 287 acres, and the Village of Royal Palm Beach (Village) owns the remaining 115 acres, which abut the southwest boundary of the north parcel. The acreages do not total 900 acres because the numbers are approximate. The 900-acre parcel is generally bounded on the south by Okeechobee Boulevard and the north and east by the M-1 canal. The west boundary of the south part of the parcel adjoins a residential development known as Loxahatchee Groves, and the 115-acre parcel adjoins a County-owned preserve of at least 600 acres. Applicant’s land is undeveloped except for some landclearing. Petitioner’s land is partly developed, mostly in the south next to the boundary with Applicant’s land. The Village's 115 acres are a preserve, divided equally between wetlands and uplands. On February 11, 1988, Respondent South Florida Water Management District (District) issued surface water management (SWM) permit No. 50-00618-S-02 to Royal Palm Homes, Inc. for conceptual approval of a SWM system serving a residential development on the 900-acre parcel (1988 Permit). References to the Original Developer shall include Royal Palm Homes, Inc., its agents, lenders, and assigns, except for Petitioner and Applicant. The permitted development, which was known as the Royal Palm Homes PUD, comprises single-family and multifamily residences, wetland preserve areas, two 18-hole golf courses, and a park area. On August 3, 1994, Applicant filed SWM application number 940803-6 to modify the 1988 Permit to show the change in ownership and obtain conceptual approval of a modification to the permitted SWM system. The application was not complete when the new Environmental Resource Permit (ERP) rules replaced the old Management and Storage of Surface Water (MSSW) permit rules. On May 24, 1996, the District transmitted the staff report, which proposed the issuance of a permit modification. On June 13, 1996, the District approved the issuance of the proposed permit modification. On the same date, Petitioner filed its petition challenging the proposed agency action. Permits The first relevant SWM permit for the 900-acre parcel involved a larger parcel that includes the 900-acre parcel. On September 14, 1978, the District issued a two-page permit authorizing the “construction of a water management system serving 2073 acres of residential lands by waterways discharging into canal C-51.” This 1978 permit, which is identified as number 50-00618-S, contains a special condition calling for a minimum finished floor elevation of 18.0 feet National Geodetic Vertical Datum (NGVD). The next permit is the 1988 Permit, which is a substantial modification to the 1978 permit. The 1988 Permit covers only the previously described 900 acres and, as modified, currently remains in effect. The 1988 Permit requires the preservation of two large wetlands in the north parcel, just north of the 115-acre preserve; one wetland is about 30 acres and the other is about ten acres. The 1988 Permit requires the preservation of no other wetlands in the north parcel, but, in addition to the wetlands in the 115-acre preserve, the 1988 Permit requires the preservation of several much smaller wetlands in the south parcel. The staff report for the 1988 Permit divides into three basins the drainage area for the 900-acre parcel: a north basin of 98.9 acres, a central basin of 525.7 acres, and a south basin of 270.8 acres. The staff report states that basin runoff will pass through a system of inlets and culverts into a series of interconnected lakes, from which, through control structures, the runoff will pass into the M-1 canal and eventually into the C-51 canal. The staff report notes that the control elevations will be 17.25 feet NGVD for the north basin, 17.55 feet NGVD for the central basin, and 17.75 feet NGVD for the south basin. Under the discussion of environmental impacts, the staff report observes that the 1978 permit proposed for protection only 30 acres of wetlands among the 281 acres of isolated wetlands on the site. The staff report notes that “extensive” melaleuca invasion has taken place since the 1978 permit and only 160 acres of wetlands remain in “relatively good” condition, with much of this subject to melaleuca encroachment. Due to the “extensive seed source” and “seasonal drying of the wetlands,” the staff report predicts eventual melaleuca dominance of the “entire site.” The staff report asserts that the proposed development plan includes the protection of about 100 acres of the “best quality wetlands,” plus eight acres of wetlands created in conjunction with the golf courses and 15 acres of wetlands created as littoral zones in conjunction with the lakes to be constructed. The staff report calls a program “to eradicate all melaleuca from the site” “[t]he major environmental feature” of the proposed development plan. But this major environmental feature of the 1988 Permit is presently in jeopardy. One major component of the present case is that, following the conveyances of the three parcels by the Original Developer, the District has evidently concluded that no one is responsible to perform certain obligations under the 1988 Permit and no remedies are available for the nonperformance of these obligations. It appears that these conclusions are largely driven by the vagueness of the plan to eradicate the melaleuca. This plan is called the "Melaleuca Eradication Plan." The Melaleuca Eradication Plan is incorporated into the 1988 Permit. The Melaleuca Eradication Plan, which is dated December 11, 1987, recounts that the Original Developer and regulatory bodies agreed that the melaleuca should be “eradicated and a program for this should be developed and included as a part of the permit application.” The plan states that the eradication plan will cover the entire 900- acre site with the Original Developer performing the “initial . . . program” on the entire site, including the 115-acre preserve to be deeded to the Village. The Melaleuca Eradication Plan calls for the Original Developer to create a bonded authority to conduct the “ten-year melaleuca eradication program.” The program is phased to coincide with the projected 10-year buildout of the 3000-unit parcel. The Melaleuca Eradication Plan describes in detail the three phases of the program and exactly how the Original Developer will proceed to remove the melaleuca and restore wetlands by planting native wetland species in disturbed areas. The plan promises a yearly inspection followed by hand-removal of any seedlings discovered on the site. This last phase will terminate ten years after commencement of the first phase. A “Wetlands Monitoring/Maintenance Program” is also incorporated into the 1988 Permit. The Wetlands Monitoring/Maintenance Program, which is dated December 8, 1987, states that Dr. Dwight Goforth performed a wetlands survey of the 900-acre site in 1985 and divided wetlands into three categories based on their quality. The Wetlands Monitoring/Maintenance promises the preservation of 112.71 acres of wetlands comprising 98.81 acres of “large wetlands totally preserved” and nine wetlands totaling 13.9 acres that will be “partially preserved.” Also, the program will create golf course wetlands of 6.93 acres and littoral-zone wetlands around the lakes of 15 acres. Thus, the program summarizes, the “total wetland acreage preserved, enhanced and created will [be] 134.64 acres.” The Wetlands Monitoring/Maintenance Program describes a three-year monitoring program using transects to assist in the vegetative mapping of the site. The program also promises semiannual observations of birds, small rodents, and larger mammals using the wetlands and adjacent preserved uplands, as well as semiannual sampling for fish, macroinvertebrates, and amphibians. The Wetlands Monitoring/Maintenance Program outlines a plan to remove melaleuca and control algae buildup in the lakes. The program promises to contain algae through the use of “biological controls” and, when needed, hand-raking. The program also assures that the Original Developer will use a “conservative fertilization program” for the golf course and landscaped areas to reduce eutrophication in the created lakes. On February 18, 1988, the District issued its conceptual approval of the 1988 Permit. Among the special conditions of the 1988 Permit are Special Condition 15, which requires wetland monitoring and maintenance in accordance with the Wetlands Monitoring/Maintenance Program, and Special Condition 16, which requires melaleuca removal in accordance with the Melaleuca Eradication Plan. Also, Special Condition 17 requires low berms around protected or created wetlands, including littoral zones, to protect against sheetflow runoff from the golf course or other areas of intense development. The references in the preceding paragraphs to the responsibilities of the "Original Developer" imply greater clarity than is present in the Melaleuca Eradication Plan or Wetlands Monitoring/Maintenance Program. The passive voice predominates in both these documents, so it is sometimes difficult to determine on whom a particular responsibility falls. The Melaleuca Eradication Plan states clearly that "[the Original Developer] will conduct the initial melaleuca eradication on the entire site including the dedicated park area [i.e., the 115 acres]." The next sentence of the plan contemplates the conveyance of the 115 acres to the County. But, after these clear provisions, the Melaleuca Eradication Plan lapses into the passive voice almost invariably. The next two sentences read, "A bonded authority will be created to conduct the ten-year melaleuca eradication program" and "The eradication program will be carried out through a bonded agreement with the [Original] Developer to remove the melaleuca . . .." Alluding to the several phases of melaleuca eradication, the plan states only "[t]he eradication program will be completed in stages " Only two other sentences establishing responsibility for melaleuca eradication identify the responsible party. The end of the plan states that the "bonded authority responsible for initial eradication clearance will likewise provide a yearly inspection." One of the final sentences of the plan adds: "the bonding authority's crew will hand remove entire seedlings found on site." The Wetlands Monitoring/Maintenance Program is similar except that it does not once name the entity responsible for the monitoring and maintenance duties or hiring the firm or individual to conduct the actual work. The two special conditions incorporating these two documents likewise are in the passive voice, implying only that the responsibility belongs to the Original Developer. Given the vagueness of the melaleuca-eradication and wetlands-maintenance documents, it is not surprising that they fail entirely to address the issue whether these responsibilities run with the land, remain the responsibility of the Original Developer, or, for the eradication of melaleuca, remain the duty of the "bonded authority," if the Original Developer ever created such an entity, which appears highly doubtful. The documents likewise do not disclose the penalties for noncompliance. On June 16, 1988, the District issued a modification to the 1988 Permit for the construction and operation of a 110.9-acre residential development in Phase I, which occupies the central basin. On October 1, 1988, the United States Army Corps of Engineers (Army Corps) issued the Original Developer a permit to destroy 164 acres of wetlands on the 900-acre parcel. Special conditions of the 1988 Army Corps permit require the preservation of "115 acres of high quality wetlands," the creation of 18 acres of wetlands and 15 acres of littoral shelf, and the implementation of a "Melaleuca Eradication Program," which is the same program as is incorporated in the 1988 Permit. The 1988 Army Corps permit contains an attachment dated October 24, 1987. This attachment identifies the protected wetlands as the two large wetlands in the north parcel totaling about 40 acres, 58 acres in the 115-acre preserve, and 53.5 acres in the south parcel. The 1988 Army Corps permit protects several wetlands in the south parcel, including wetland numbers 14 (3.04 acres), 16 (1.6 acres), 23 (0.53 acres), 30 (2.6 acres), 44 (0.8 acres), 29 (1.08 acres), and 46 (3.0 acres). These wetlands, which total 12.65 acres, are seven of the nine wetlands partially preserved in the 1988 Permit, although some of the acreages vary from those preserved in the 1988 Permit. Unlike the District's permits (except for the subject proposed permit modification), the 1988 Army Corps permit addresses conveyances by the developer. The 1988 Army Corps permit states: "If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization." Below the signature line of the 1988 Army Corps permit is language stating: When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below. On March 1, 1989, the Original Developer conveyed the 115-acre preserve to the Village, which later leased the preserve to the County. The Original Developer had not eradicated the melaleuca at the time of the conveyance, nor has anyone since done so. On August 17, 1990, water elevations in the wetlands in Phase I reached 19.4 feet NGVD, washing out construction pads, roads, and in-ground utilities. On September 7, 1990, the District issued a stop-work request because the SWM system was not working as required. On September 28, 1990, the District approved interim measures to preserve the wetland hydroperiod and allow for wetland overflow. These measures include berming the residential areas in Phase I/Plat I adjacent to wetlands. On June 13, 1991, the District approved additional modifications to the 1988 Permit and the construction and operations permit for Phase I and issued a conceptual approval for works in the north and central basins. The revisions to the conceptual approval include adding two control structures to the north wetland that connect to the water management system in the north basin and adding a berm around the smaller of the two preserved wetlands in the north parcel. The construction approval was for a perimeter berm along the south wetland and park areas. On June 24, 1992, the District issued a staff report recommending issuance of another modification of the 1988 Permit for the conceptual approval of a SWM system to serve the 900-acre parcel and approval of construction and operation of a SWM system to isolate and control the existing onsite wetlands and revise the control structure for the central basin. The staff report explains that this modification proposes berming the wetlands to the 100-year, three-day peak elevation. The staff report notes that the wetlands basin consists of 295.18 acres of wetlands, including 155.85 acres of “wetlands/uplands.” The staff report notes that the north basin contains 107.41 acres of “good quality wet prairie wetlands” with “minimal” melaleuca encroachment. The staff report restates that the purpose of the modification is to berm all of the wetlands and uplands not planned for development. Special Condition 19 requires the Original Developer to dedicate as conservation and common areas in deed restrictions the “wetland preservation/mitigation areas, upland buffer zones, and/or upland preservation areas," so that these areas are the “perpetual responsibility” of a named property owners’ association. Special Condition 22 states that “a wetland monitoring and maintenance program” and “a melaleuca eradication program” “shall be implemented,” but the condition does not expressly state by whom. Special Condition 22 requires that the work implementing these programs conform to these “approved environmental programs as outlined in the [1988 Permit].” Special Condition 25 provides that, on submittal of an application for construction approval in the south basin (Phase II), the "permittee shall submit a detailed wetland construction mitigation, monitoring and maintenance plan.” In evaluating the plan for approval, the District shall apply the “environmental criteria in effect at the time of construction permit application.” Although the approval of the District is not attached to the staff report, the District approved the June 24, 1992, staff report and proposed permit. The 1992 permit modification did not address the issue of who was responsible for melaleuca eradication after the sale of the property. On November 10, 1993, the staff report accompanying another request for a permit modification restates the special conditions of earlier permit modifications. Special Condition 23 restates the requirement that a melaleuca eradication program “shall be implemented,” again not stating by whom. Special Condition 23 now requires the completion of the melaleuca eradication program by February 25, 1994. The omission of a referenced exhibit to the permit from the exhibit filed in this case prevents a determination that this is the same as the Melaleuca Eradication Plan incorporated in the 1988 Permit and restated in the 1992 modification, although it probably is. In any event, Special Condition 23 concludes in another sentence lacking a stated or implied subject: “Maintenance of the preserved wetlands and berm planting areas shall be conducted in perpetuity to ensure that the conservation areas are maintained free from exotic vegetation (Brazilian pepper, Australian pine and melaleuca) . . ..” Although the record does not contain the written approval of the District to the staff report, the District approved the staff report dated November 10, 1993. On November 12, 1993, the Original Developer conveyed by special warranty deed the north to Petitioner. The deed is subject only to "easements, declarations, restrictions and reservations of record . . .." The record does not provide recording information for the deed. The Original Developer probably conveyed the south parcel to Applicant in the same fashion and at the same approximate time. Almost five months later, on March 29, 1994, the Army Corps issued another permit for the 900-acre parcel. Although the Original Developer had conveyed at least the north parcel, the Army Corps issued the 1994 permit to the Original Developer. The 1994 Army Corps permit authorizes the destruction of 158 acres. The general conditions governing transfers are the same as those in the 1988 Army Corps permit. The special conditions of the 1994 Army Corps permit require the permittee to preserve and enhance only 110 acres of high quality wetlands, instead of preserving 115 acres of such wetlands, as was required in the 1988 Army Corps permit. The 1994 Army Corps permit drops the requirement of creating eight acres of wetlands and 15 acres of littoral zone, as was required in the 1988 Army Corps permit, but requires the preservation of what appears to be the 39.5-acre preserve that is proposed by Applicant in the subject permit modification, as described below. Special Condition 3 of the 1994 Army Corps permit adds that all preserved areas "will be maintained in perpetuity free of Melaleuca. The permittee agrees to develop a bonded Melaleuca eradication program for the entire 906 acres. Copies of the bonded agreement will be provided to this office for approval before development can commence." The next permit activity affecting the 900-acre parcel is the subject application filed by Applicant on August 3, 1994, for its 503-acre parcel. On May 24, 1996, the District issued a staff report for conceptual approval of a SWM system proposed by Applicant for its 503-acre parcel. On June 13, 1996, the District issued an addendum to the staff report that contains another special condition that is not especially relevant to this case. In the background section, the staff report mentions the flooding of Phase I of the north parcel and states that the District had “assumed the adjacent wetlands would flow away from the development.” The staff report outlines the modifications implemented to eliminate the flooding; these modifications include connecting the M-1 canal, through inlets, with several wetlands located in the north and central basins. According to the staff report, Petitioner’s north parcel, which totals 287.34 acres, includes the Phase I/Plat 1 area, north basin, and part of central basin south of Phase I. Describing Applicant’s proposal, the staff report states that a preserve of 39.5 acres will be located in the northwest corner of the south parcel, adjoining the east boundary of the 115-acre parcel. The staff report states that the 39.5-acre preserve will sheetflow through cuts in the berm to wetlands in the 115-acre preserve. The 115-acre preserve is connected to the SWM system permitted on November 10, 1993, to eliminate flooding from these wetlands, whose control elevation is 19 feet NGVD. The staff report describes the south parcel as “dominated by flatwood habitat,” within which are stands of Australian pine and other exotic plant species that have recently been spreading across the site. The onsite wetlands are 4.93 acres of wet prairies, 18.4 acres of pond cypress strands, 1.56 acres of isolated marsh, 3.5 acres of cypress mixed with pine flatwood, and 163.91 acres of melaleuca. The staff report finds that only the 4.93 acres of wet prairies and 18.4 acres of cypress are in good condition, but melaleuca has become established in many of the wet prairies. The 1.56 acres of freshwater marshes and 163.91 acres of melaleuca are in poor condition. The 3.5 acres of cypress mixed with pine flatwoods are in fair condition. As for listed species, the staff report mentions only the possibility that herons might forage onsite during periods of standing water. Summarizing the impact of the proposed project on wetlands preservation, the staff report endorses the hydrologic reconnection of the 39.5-acre wetland/upland site with the 115-acre wetland. The staff report notes that water levels in the 115-acre preserve, which has been bermed to 21 feet NGVD, have stabilized at 19 feet NGVD. The staff report asserts that the “proposed wetland impacts (183.54 acres) were previously permitted under the conceptual permit application” for the original 1988 Permit. The staff report adds that this modification is to “change a portion of the original mitigation requirements . . . and includes impacts to a 6.78 acre wetland area that was previously permitted to be preserved.” But the staff report does not recommend the preservation of this wetland “[d]ue to the reduced hydrology and proximity to the proposed upland development” and the mitigation and compensation provided by the 39.5-acre preservation area. The staff report states that 8.76 acres of the 39.5- acre preserve are wetlands, and the remainder are uplands. As for the 8.76 acres of wetlands, the staff report lists 0.67 acres of mixed cypress and pine flatwoods, 4.93 acres of wet prairies, and 3.16 acres of cypress. Applicant would also restore 4.95 acres of pine flatwoods. As for the 183.54 acres of wetlands to be destroyed, the staff report lists 2.83 acres of mixed cypress and pine flatwoods in fair condition, 15.24 acres of cypress in fair condition, 1.56 acres of freshwater marshes in poor condition, and 163.91 acres of melaleuca in poor condition. Addressing the mitigation and monitoring elements of the current proposal, the staff report states that the modification would eliminate the creation of 15 acres of littoral wetlands around SWM lakes and 7.99 acres of marshes in golf courses in return for the creation of the 39.5-acre preservation area. The staff report assures that Applicant will perpetually manage and maintain the 115-acre preserve. Conceding that the 1988 Permit also required long-term maintenance of the 115-acre parcel, the staff report notes that the initial eradication effort was never completed. The staff report mentions an “access agreement” giving Applicant the authority to enter the 115-acre preserve for mitigation and monitoring, but “anticipat[es]” that Applicant will submit an application for another permit modification, on behalf of the two governmental entities, so that Applicant can “assume future maintenance responsibilities for this area.” As is clarified by the maintenance and monitoring plan, which is part of the proposed permit, Applicant's expectation is that the County and Village, not Applicant, will assume future maintenance responsibilities for the 115-acre preserve. The staff report concludes that the District should issue the permit subject to various conditions. Special Condition 1 is that the minimum building floor elevation is 20 feet NGVD. Special Condition 16 requires the implementation of a wetland mitigation program and requires Applicant to create 4.95 acres of marsh; restore 3.16 acres of cypress, 4.93 acres of marsh, and 0.67 acres of mixed forest; and protect 25.79 acres of uplands. Special Condition 17 sets performance criteria for the mitigation areas in terms of percentage and length of survival of vegetation. Special Condition 17 supplies completion dates for monitoring reports. Special Condition 21 addresses listed species. Noting that listed species have been seen onsite or the site contains suitable habitat for such species, Special Condition 21 requires Applicant to coordinate with the Florida Game and Fresh Water Fish Commission or the U. S. Fish and Wildlife Service for guidance, recommendations, or permits to avoid impacts to such species. The monitoring and maintenance plan does not address direct and contingent liabilities for maintenance and generally is a poor candidate for enforcement. In addition to the vagueness of the passive voice, the plan is, at times, simply unreadable, as, for example, when it concludes boldly, but enigmatically: The site as a whole is evolving hydrologic trends which permits successional seres development toward communities with shorter hydroperiods and ultimately, toward more upland transitional and/or exotic species dominance of historically wetland habitats. Long-term prospectives infer that successional deflection has become a severe detriment for natural environmental control to alter the present scenario. Active management coupled with graduated balanced in hydrologic restoration and created habitat elements will become the processes engineered to obtain an infusion of probabilities fashioned to inscribe a regenerative adaptation to the present site condition while fostering in situ processes, to optimize derived functions, for the maintenance of both habitat and wildlife over the long-term existence of the Preserve. (Sic.) Water Quality Impacts Petitioner does not contend in its proposed recommended order that the proposed project fails to meet applicable requirements regarding water quality. Applicant has provided reasonable assurance that the proposed permit modification would not violate State water quality standards. Flooding Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding water quantity and flooding. However, Applicant has provided reasonable assurance that the project would not violate these requirements. There are several aspects to a SWM system. Undeveloped land stores and conveys rainfall through soil and surface storage. An artificial SWM system alters the undeveloped land’s storage capacity by the addition of a storage and drainage system, such as, in this case, conveying water through the soil into storm drains and then to lakes to store surface runoff prior to release, through an outfall structure, into a receiving body of water--in this case, the M-1 canal. The SWM system hastens the conveyance of stormwater runoff offsite. The control elevation of a SWM system is the height at which water in the lakes will flow through the outfall structure into the receiving body of water. Except during the dry season, the control elevation tends to establish not only the water level of the SWM lakes, but also of the nearby water table. The hastening of drainage offsite with the establishment of control elevations produce the drawdown effect of SWM systems. As to flooding, the basic underlying dispute between Petitioner and Respondents is whether to use the pre- or post- development depth to water table. In determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on wetlands, one would project the effect of any post-development drawdown on the wetlands themselves and their functions and inhabitants. It would be illogical not to do the same in determining whether an applicant has provided reasonable assurance as to the impact of a proposed development on flooding. Pre-development, the average depth to water table on Applicant’s property is as little as two feet. Post- development, the average depth to water table on Applicant’s property will be five feet, which is the difference between the control elevation of 14 feet NGVD and ground elevation of 19 feet NGVD. Petitioner’s evidence concerning flooding is flawed because its expert witness based his calculations on an average depth to water table of two feet on Applicant’s property. He did not adjust for the considerable drawdown effect of the SWM system. The District table allows for no more than four feet between the water table and ground, so there is an added margin of safety in the ensuing flooding calculations. Another important factor in the flooding calculations is the soil type in terms of permeability. The District properly characterized the prevailing soils as flatwoods, and the soils onsite are in the category of “good drainage.” Applicant’s suggestion that flooding calculations use the post-development soils is rejected. Post-development depths to water table are used because they can be calculated to predict post-development conditions accurately. Applicant produced no proof that it would replace such massive amounts of soil from the site with more permeable soils so as to justify reclassifying the soil type. The District's flooding calculations probably overstate the risk of flooding in the three-day, 100-year design storm because they ignore lake bank storage, which is the additional amount of water that a lake can store in its sloped banks above the typical water elevation. The District could have relied on the effect of lake bank storage for additional assurance that the proposed project will not result in flooding. The proposed project contains a large number of long, narrow lakes, which will thus have a relatively high percentage of lake banks to lake area. Additionally, the District has raised the minimum floor elevation at this site by two feet over 18 years. Whatever other effects may follow from this trend, the higher floor elevation offers additional protection to onsite improvements. The flooding of Petitioner’s property seven years ago understandably is a matter of concern to Petitioner. Applicant proposes to change the configuration of drainage basins, but the District has adequately addressed the drainage issue, and this is not the first time in the 20-year permitting history of this property that the District has approved a reconfiguration of basins. Also, in the 1988 Permit, the District incorrectly projected the direction of runoff under certain conditions. However, the flooding was partly due to inadequate road- drainage facilities. Following the flooding, the Original Developer enlarged these features and bermed the flooding wetlands, so as to eliminate the flooding of developed areas due to design storm events. On balance, Applicant has proved that the proposed permit modification would not adversely affect flooding or water quantity. Environmental Impacts A. Wetlands Petitioner contends in its proposed recommended order that the proposed permit modification would not meet applicable requirements regarding environmental impacts to wetlands. Applicant has failed to provide reasonable assurance that the proposed work would not violate these requirements. There are two major deficiencies in the District's analysis of wetland impacts and mitigation or compensation. First, the proposed permit modification includes mitigation or compensation in the form of melaleuca removal. But prior permits have already required the same work, no one has ever done the work, and the District does not know if these permit requirements are still enforceable. Second, the proposed permit modification ignores 13.9 acres of preserved wetlands in the 1988 Permit, allowing their destruction without mitigation or compensation. The permitting process requires the District to balance the impacts of development and mitigation or compensation on the natural resources under the District's jurisdiction. Balancing these impacts in issuing the 1988 Permit, the District required the complete eradication of melaleuca in return for permitting the residential, institutional, and recreational development proposed by the Original Developer. District staff, not the Original Developer or Petitioner, called the Melaleuca Eradication Plan “the major environmental feature” of the development plan approved by the 1988 Permit. The major environmental feature of the 1988 Permit clearly justified significant development impacts on natural resources. To justify additional development impacts on natural resources, the District now proposes to count again another developer’s promise to eradicate the melaleuca. The District claims that the term of the original melaleuca protection plan was only ten years, not perpetual as is presently proposed. However, the District's claim ignores Special Condition 23 in the 1993 permit modification. This condition set a deadline of February 25, 1994, for the eradication of melaleuca and made perpetual the requirement that one or more of the potentially responsible parties--the Original Developer, Petitioner, Applicant, the bonded authority, the property owners' association, or transferees-- maintain the wetlands free of melaleuca and other exotics. Unfortunately, this “major environmental feature” of the 1988 Permit, as well as subsequent permit modifications, was so poorly drafted as to leave potentially responsible parties unsure of their legal obligations. The District tacitly suggests that it cannot enforce the obligations imposed by the 1988 Permits and later modifications for the eradication of melaleuca. But there is presently no reason for the District to resort again to permitting without first reviewing carefully its enforcement options. The District should first determine whether anyone will voluntarily assume these obligations. As a business consideration, Petitioner may choose to eradicate the melaleuca from the north parcel and 115-acre preserve to prevent Applicant from providing this service and claiming that it should receive compensation credit against additional environmental impacts permitted by a modification of the 1988 Permit. Maybe the County or Village has already budgeted funds for this work. If no party offers to perform the necessary work, the District must next determine its legal rights and the legal obligations of these parties. Depending on the results of this research, the District may need to consider litigation and the cessation of the issuance of construction and operation permits on the 900-acre parcel or either the north or south parcel. At this point, the District should discuss joint litigation or permit revocation with the Army Corps, whose 1994 permit requires the permittee to develop a bonded melaleuca-eradication program and apparently imposes on the permittee the responsibility to maintain all preserved areas free of melaleuca. Only after having exhausted these options may the District legitimately conclude that melaleuca eradication on any part of the 900 acres represents fair compensation for the development impacts on jurisdictional natural resources. The second major problem as to wetlands impacts concerns the calculation of wetlands acreages to be destroyed by the proposed permit. The 1988 Permit expressly incorporates the Wetlands Monitoring/Maintenance Program. This program, as an operative part of the 1988 Permit, represents that the developer will “partially preserve. . .” nine wetlands totaling 13.9 acres. The partial preservation of wetlands does not mean that a five-acre wetland will remain a five-acre wetland, except that its function will be impaired. Partial preservation means that, for instance, two acres of a five- acre wetland will be preserved. It is impossible for the District to have required mitigation to offset the destruction of these 13.9 acres of wetlands because the District denies that the 1988 Permit required the partial preservation of these nine wetlands. As noted below, neither the District nor Applicant can identify all of the wetlands that make up the 13.9 acres. Rather than account for these wetlands that were to have been partially preserved, the District instead contends that this undertaking by the Original Developer was ineffective or nonbinding because it was overriden by contrary statements in the staff report. Not so. The specific provisions delineating the preserved wetlands area in the Wetlands Monitoring/Maintenance Program, which was prepared by the Original Developer, override more general statements contained in the staff report accompanying the permit. There is not necessarily a conflict between the staff report and the Wetlands Monitoring/Maintenance Program. The staff report states that the plan “includes the protection of approximately 100 acres of the best quality wetlands,” together with the creation of eight acres of golf course wetlands and 15 acres of lake littoral zones. The plan “includes” these wetlands among those preserved or created; the word suggests that the list is not exhaustive, but only illustrative. Alternatively, if the list were exhaustive, the preservation of “approximately” 100 acres reasonably encompasses the 112.71 acres of partially or totally preserved wetlands cited in the Wetlands Monitoring/Maintenance Program. More to the point, on October 26, 1987, Donald Wisdom, the engineer handling the 1988 Permit, prepared a memorandum for the file stating that the total acreage of wetlands to be preserved or created was 134.45. This figure represents an insignificant deviation of 0.19 acres from the total listed in the Wetlands Monitoring/Maintenance Program, which was dated six weeks later, on December 8, 1987. In the October 26 memorandum, Mr. Wisdom describes the preserved wetlands as 111.46 acres of A- and B-quality wetlands. This is 1.25 acres less than the acreage in the Wetlands Monitoring/Maintenance Program. These small discrepancies were eliminated by November 18, 1987, when Mr. Wisdom wrote a memorandum noting that the program called for the total preservation of 98.81 acres and partial preservation of 13.9 acres. Adding the created wetlands, the new total for preserved or created wetlands was 134.64 acres. A month later, a District employee wrote a memorandum to the file, expressing his “main concern” that the proposed development would protect only 99 acres of wetlands. It is unclear why the employee mentioned only the 98.81 acres slated for preservation. Perhaps he was confused or mistaken. But the misgivings of a single employee do not constitute the rejection by the District of a developer's proposal to preserve nearly 14 acres of high-quality wetlands. The staff report for the 1988 Permit notes that the 900-acre site contained about 281 acres of wetlands. If the 1988 Permit required the preservation, as an entire wetland or part of a larger wetland, of 112 acres of wetlands, then the 1988 Permit allowed the destruction of 169 acres, which is consistent with the 164 and 158 acres allowed to be destroyed by the 1988 and 1994 Army Corps permits. However, by the 1996 permit modification, the staff report refers, without explanation or justification, to the permitted destruction of 183.54 acres of wetlands--evidently adding the 13.9 acres to the 169 acres previously permitted to be destroyed. Tab 13 of the Wisdom bluebook identifies the nine wetlands constituting the 13.9 acres, which are entirely in Applicant's south parcel. Except for three, all of these wetlands were characterized as A-quality, meaning that they are in good to excellent condition and “have not been stressed significantly from the biological viewpoint.” B-quality wetlands are in disturbed condition and “are in various stages of biological stress caused primarily by a lowered water table and/or melaleuca invasion.” C-quality wetlands are highly disturbed and “are substantially degraded biologically.” The 13.9 acres of wetlands comprise wetland numbers 23 (0.5 acres), 46 (0.4 acres), 44 (0.6 acres), 37 (0.4 acres), 29 (1.1 acres), 20 [sometimes misreported as 21] (3.9 acres), 30 (2.6 acres), 16 (1.5 acres), and 14 (2.9 acres). Wetland numbers 46 and 29 are B-quality, and wetland number 20 is C-quality. The wetlands shown in District Exhibit 4 and Applicant Exhibit 3 inaccurately portray the wetlands constituting the missing 13.9 acres. A internal memorandum to the file notwithstanding, the District predicated the 1988 Permit in part on the preservation of 112.71 acres of functioning wetlands, including the 13.9 acres that the District now disclaims. The mitigation and compensation required of Applicant in the present case ignored the destruction of these wetlands. The District's analysis of mitigation and compensation in this case was fatally flawed by these two deficiencies. But more deficiencies exist in the District's analysis of wetland impacts. The District relied on faulty data in reviewing Applicant's request for a permit modification. Undercounting the extent of wetlands by at least 21 acres and their condition by an indeterminable amount, Applicant presented to the District a materially inaccurate picture of the wetland resources on the south parcel. Despite disclaimers to the contrary, the District relied on this inaccurate data in reviewing Applicant's request for a permit modification. There are possible problems with 39.5-acre preserve offered by Applicant. This parcel contains less than nine acres of wetlands, including two wetlands that Applicant may already be required to preserve under the 1994 Army Corps permit. At the same time, Applicant's proposal may include the destruction of a third wetland that is to be preserved under the 1994 Army Corps permit. The best rendering in the record of the 1994 Army Corps permit may be Applicant Exhibit 4, which shows eight large wetland areas to be “preserved/enhanced/created.” Two of these are the 10- and 30-acre wetlands on Petitioner’s property, which were preserved in the 1988 Permit. Three of the eight wetlands are in the 115-acre preserve; these were also preserved in the 1988 Permit. The remaining three wetlands to be preserved, enhanced, or created under the 1994 Army Corps permit are in the north end of Applicant’s property. It is difficult to estimate acreage given the scale of the drawing, but the two westerly wetlands are about 4-5 acres each and the easterly wetland is 3-3.5 acres. Subtracting the total preserved acreage of 110 from the acreage identified in the preceding paragraph, the total acreage of these remaining three wetlands is about 12. The two westerly wetlands are in the 39.5-acre preserve that Applicant offers as mitigation in the present case. According to Applicant Exhibit 6, the easterly wetland, or at least the most valuable part of it--the center--is slated for destruction if the District grants the subject permit modification. The proposed destruction of the third wetland is a matter of greater interest to the Army Corps than to the District, but the offer to preserve the other two wetlands really does not provide anything in return for the permitted development impacts because these two wetlands are already preserved under the 1994 Army Corps permit. As the District and Applicant contend, golf course marshes and littoral zones are typically of little environmental importance. Although the 1988 Permit addresses some of these problems, although without supplying any performance standards, golf courses themselves are often conduits of fertilizers and pesticides into the groundwater and nearby surface water. The District and Applicant justifiably question the value of the golf courses approved in the 1988 Permit as wildlife corridors. It is unclear what wildlife would use the corridor, which is surrounded by residential development and bounded by Okeechobee Boulevard. Other factors also militate in favor of Applicant's proposal. But, as the record presently stands, there is no way to find that Applicant has provided reasonable assurance that the proposed development and related mitigation and compensation, as described in the subject permit modification, meet the applicable criteria. The District substantially undervalued the environmental impacts of the proposed modification while substantially overvaluing the environmental impacts of Applicant's proposed contributions in the form of mitigation and compensation. To find adequate assurance as to wetland impacts in these circumstances, where the District did not perform an informed balancing of various impacts in a large-scale development, would permit the District to transform the unavoidably imprecise task of balancing wetland impacts into an act of pure, unreviewable discretion. Listed Species The only relevant listed species onsite is the gopher tortoise, which is a species of special concern. Gopher tortoises use the site to an undetermined extent. Applicant's suggestion that someone brought the tortoises to the site is rejected as improbable. However, due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant provided reasonable assurance as to the value of functions provided to wildlife and listed species by wetlands. Procedural Issues A. Standing Petitioner has standing due most obviously to flooding considerations. Additionally, the SWM system permitted in 1988 is for the entire 900-acre parcel, of which Petitioner’s parcel is a part. Applicability of ERP Rules The proposed permit modification would substantially affect water resources. The proposed permit modification would substantially increase the adverse effect on water resources. Requirement to Delineate Wetlands Due to the resolution of the wetlands issue, it is unnecessary to determine whether Applicant met applicable requirements concerning the delineation of wetlands. Improper Purpose Petitioner did not challenge the proposed permit modification for an improper purpose. Relevant Provisions of Basis of Review The District revised its Basis of Review after the adoption of ERP rules. Although the order concludes that the District should have applied the ERP rules, and thus the ERP Basis of Review, the order shall discuss both versions of the Basis of Review because the District ignored numerous provisions of both documents in approving Applicant's request for a permit modification. Section 4.6 MSSW Basis of Review requires the District to consider "actual impact" to the site by "considering the existing natural system as altered by the proposed project[,]" including "positive and negative environmental impacts." Section 4.6 requires the District to "balance" these impacts "to achieve a reasonable degree of protection for significant environmental features consistent with the overall protection of the water resources of the District." The proposed permit modification fails to comply with several provisions of Appendix 7 of the MSSW Basis of Review, such as Sections 4.2 requiring a detailed description of the isolated wetlands to be destroyed; 5.1.1(d) favoring the protection of isolated wetlands over their destruction, mitigation, and compensation, which are considered "only when there are no feasible project design alternatives"; and 5.1.6 prohibiting the alteration of water tables so as to affect adversely isolated wetlands. The proposed permit modification also violates various provisions of the ERP Basis of Review. Section 4.0 of the ERP Basis of Review sets the goal of permitting to be "no net loss in wetland . . . functions." Sections 4.2 and following generally require balancing. Section 4.2.1 predicates District approval on a showing that the SWM system does not cause a "net adverse impact on wetland functions . . . which is not offset by mitigation." The ERP provisions first require that the District "explore" with an applicant the minimization of impacts prior to considering mitigation. Section 4.2.2.4(c) specifically imposes monitoring requirements for SWM systems that "could have the effect of altering water levels in wetlands." Sections 4.3.2.2 and following discuss mitigation ratios under the ERP Basis of Review. If the District can explicate a policy to count as mitigation wetlands acreage already preserved under Army Corps permits, the ratios in this case might warrant further consideration, assuming Applicant resubmits an application for permit modification. But it would be premature to consider the ratios on the present record for several reasons. The District has not proved such a policy. If such a policy counts such wetland acreage, on the theory that the District protects function and the Army Corps protects merely the wetland, the record is insufficiently developed as to the functions of the wetlands proposed for protection, as well as the functions of the 13.9 acres of wetlands proposed for destruction. Also, the District has not sufficiently explored project minimization, as is now required under the ERP Basis of Review.
Recommendation It is RECOMMENDED that the District enter a final order denying Applicant's request for a permit modification. ENTERED in Tallahassee, Florida, on June 13, 1997. ROBERT E. MEALE 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 on June 13, 1997. COPIES FURNISHED: Jeffrey D. Kneen John F. Mariani J. Barry Curtain Levy Kneen 1400 Centrepark Boulevard, Suite 1000 West Palm Beach, Florida 33401 Ronald K. Kolins Thomas A. Sheehan, III Moyle Flanigan Post Office Box 3888 West Palm Beach, Florida 33402 John J. Fumero Marcy I. LaHart Office of Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Samuel E. Poole, III Executive Director Post Office Box 24680 West Palm Beach, Florida 33416
The Issue The issue in this case is whether a development order (Resolution No. 233- 1991) issued by Monroe County on June 26, 1991, to Key Largo Associates, Ltd., is inconsistent with Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and Land Use Regulations, and/or whether it violates a Joint Stipulation of Settlement previously executed by the Department of Community Affairs ("DCA"), Monroe County (the "County"), and Key Largo Associates, Ltd.'s predecessor in title.
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the State Land Planning Agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. The County issued the Development Order which is the subject of this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical Concern as designated in Sections 380.05 and 380.0552, Florida Statutes. Development orders issued by a local government agency for an area of critical state concern are subject to review by DCA pursuant to Section 380.07, Florida Statutes. On April 8, 1985, DCA, Monroe County, and I. D. Properties, the previous owner of the subject property, executed a Joint Stipulation of Settlement regarding DCA's challenge to a prior development order for the subject property. That Joint Stipulation of Settlement required the preservation of certain tropical hammock on the site including Paradise Tree hammock. After executing the Joint Stipulation of Settlement, I. D. Properties quitclaimed its interest in the site to Key Largo Associates, Ltd. Key Largo Associates, Ltd. proceeded to seek approval from Monroe County to develop the property inconsistent with the terms of the Joint Stipulation of Settlement. Those efforts resulted in the Development Order which is the subject of this case. The County Commission issued the Development Order granting a major conditional use permit for the Project to Key Largo Associates, Ltd., after being ordered to do so by the Circuit Court for Monroe County. The Development Order purports to authorize the complete elimination of existing tropical hammock on the site including the Paradise Tree hammock. The Development Order is inconsistent with the Monroe County Comprehensive Plan and the Land Development Regulations adopted thereunder. In addition, the Development Order is contrary to the terms of the Joint Stipulation of Settlement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which sustains the appeal filed by the Department of Community Affairs and which rescinds the issuance of Monroe County Resolution No. 233- 1991. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August 1993. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993. COPIES FURNISHED: Terrell K. Arline Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Betty J. Steffens, Esquire McFarlain, Wiley, Cassedy & Jones Post Office Box 2174 Tallahassee, Florida 32316-2174 Blackwater Associates Partnership 7225 S.W. 108th Terrace Miami, Florida 33156 Ray Parker Parker Real Estate 2028 North Dixie Highway Fort Lauderdale, Florida 33305 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David K. Coburn, Secretary FLWAC Exec. Office of the Governor 311 Carlton Bldg. Tallahassee, Florida 32301
