The Issue Whether an amendment to the Lee County Comprehensive Plan, adopted by Ordinance 15-10 on June 3, 2015, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact Petitioners, Roger Thornberry, Georgette Lundquist, Steven Brodkin, Ruby Daniels, Rosalie Prestarri, and James Giedman, reside in and own property within Lee County. Petitioners submitted oral and written comments to Lee County concerning the challenged Plan Amendment during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. Respondent, Lee County (the County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes (2015). Intervenors, RH Venture II, LLC; RH Venture III, LLC; and Greenpointe Communities, LLC (Greenpointe), are the owners and developers of the property which is subject to the Plan Amendment. Intervenors are the applicants for the Plan Amendment. The Lee County Comprehensive Plan (Comprehensive Plan) allocates future land uses based on community plans for 22 distinct communities within the County. The Fort Myers Shores planning community is located in eastern Lee County. Within Fort Myers Shores is a sub-community planning area known as Caloosahatchee Shores, which is located south of the Caloosahatchee River, east of Interstate 75 (I-75), and west of Hickey’s Creek. The southern boundary of Caloosahatchee Shores is the Orange River and State Road 82. Caloosahatchee Shores contains a mixture of future land use designations. The majority of the land is designated Suburban, Sub-Outlying Suburban, Rural, or Urban Community. The subject property is located in Caloosahatchee Shores within an existing 1,978-acre mixed-use golf community known as River Hall. Most of the existing development in River Hall was completed between 2004 and 2009 by the original developer, Landmar Group, which was then owned by Crescent Resources. Crescent Resources declared bankruptcy in 2009. Those portions of River Hall subject to the Plan Amendment were acquired by Greenpointe in 2010. The property subject to the Plan Amendment is approximately 585 acres of non-contiguous land within the existing mixed-use development. All of the property subject to the Plan Amendment is located within the Rural future land use category. The Plan Amendment changes the future land use category of the subject property from Rural to Sub-Outlying Suburban.2/ The density of development allowed in Rural is one dwelling unit per acre and the density of development allowed in Sub-Outlying Suburban is two units per acre. In 2001, the Lee County Board of County Commissioners (Lee County Commission) adopted procedures to encourage community planning aimed at specific neighborhood interests within the County. A coalition of property owners in Caloosahatchee Shores developed the Caloosahatchee Shores Community Plan (Community Plan) between 2001 and 2003. The Community Plan was incorporated into the Comprehensive Plan in 2003 and is codified as Future Land Use Element (FLUE) Goal 21 and its implementing objectives and policies. FLUE Goal 21 reads as follows: GOAL 21: CALOOSAHATCHEE SHORES: To protect the existing character, natural resources and quality of life in Caloosahatchee Shores, while promoting new development, redevelopment and maintaining a more rural identity for the neighborhoods east of I-75 by establishing minimum aesthetic requirements, planning the location and intensity of future commercial and residential uses, and providing incentives for redevelopment, mixed use development and pedestrian safe environments. This Goal and subsequent objectives and policies apply to the Caloosahatchee Shores boundaries as depicted on Map 1, page 2 of 8 in the Appendix. The Community Plan was amended in 2007 and again in 2009. Policy 21.1.5 was added to the Community Plan in 2009, and reads as follows: POLICY 21.1.5: One important aspect of the Caloosahatchee Shores Community Plan goal is to retain its’ [sic] rural character and rural land use where it currently exists. Therefore no land use map amendments to the remaining rural lands category will be permitted after May 15, 2009, unless a finding of overriding public necessity is made by three members of the Board of County Commissioners. It is undisputed that the Plan Amendment removes land from the Rural land use category. It is undisputed that the Lee County Commission did not make a finding of an “overriding public necessity” when it adopted the Plan Amendment. Petitioners allege the Plan Amendment is internally inconsistent with Policy 21.1.5 because the Lee County Commission did not make the requisite finding of an “overriding public necessity” to remove property from the Rural land use category.3/ Respondent and Intervenors argue that Policy 21.1.5 does not apply to the Plan Amendment because the existing development on the property subject to the Plan Amendment is not rural in either character or land use. Respondent and Intervenors introduced abundant evidence to establish that the property subject to the Plan Amendment is suburban development served by the full spectrum of urban services and devoid of any of the trappings of rural development, such as large-lot residential and agricultural uses. Respondent and Intervenors advocate an interpretation of Policy 21.1.5 which requires a finding of “overriding public necessity” only if a plan amendment removes property that exhibits rural character or rural land use from the Rural land use category. The County offered the testimony of Brandon Dunn, one of its principal planners. Mr. Dunn characterized the Policy as an “if/then statement”: if property in the Rural land use category (subject to a plan amendment) exhibits rural character and rural land use, then a finding of “overriding public necessity” is required. Under Mr. Dunn’s analysis, Policy 21.1.5 does not apply to the Plan Amendment because River Hall is a suburban community. Intervenors’ planning expert, Dr. David Depew, testified that the first sentence narrows the application of the second. Dr. Depew testified that the first sentence indicates “we aren’t talking about the category per se.”4/ Under Dr. Depew’s reading, the second sentence only applies to plan amendments which exhibit rural character or rural land use, rather than all plan amendments removing property from the Rural land use category. Neither Mr. Dunn’s nor Dr. Depew’s opinion is persuasive.5/ The interpretation advanced by both Respondent and Intervenors adds language to the second sentence of Policy 21.1.5 limiting its application to only those plan amendments which exhibit rural character and rural land use. The plain language of Policy 21.1.5 contains no such limitation. The policy directs the County to make a finding of an “overriding public necessity” as a prerequisite to removing land from the Rural land use category in Caloosahatchee Shores. The first sentence of Policy 21.1.5 does not constitute a limitation on the directive for a finding of an “overriding public necessity.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Lee County Plan Amendment, adopted by Ordinance 15-10 on June 3, 2015, is not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of December, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2015.
The Issue The issue is whether the application of Thomas J. White Development Company for the establishment of a uniform community development district under Chapter 190, Florida Statutes, and Rule Chapter 42-1, Florida Administrative Code, should be granted.
Findings Of Fact The facilities and services that will be provided by the St. Lucie West Services District are the financing, constriction, ownership, operation, and maintenance of the surface water management and control system for the area, and necessary bridges and culverts. The land encompassed by the proposed development district is a development of regional impact. The final revised development order for the area was issued on February 27, 1989, by the City of Port St. Lucie. Exhibit 4. The land within the proposed district is composed of approximately 4,600 contiguous acres located in the city. The proposed district is bounded on the north and south by the city. The western and eastern boundaries are Interstate 95 and the Florida Turnpike, respectively. A map showing the location of the area to be serviced by the proposed district is found in Exhibit 2; a metes and bounds legal description of the proposed district is attached to the petition as Exhibit 1. The overall development to be serviced by the district will include a variety of single family and multifamily housing units, as well as commercial, industrial, and educational uses. A portion of the future land use map for the City of Port St. Lucie was received in evidence as Exhibit 3, and shows approved land uses for the St. Lucie West area. In the proceedings leading to the issuance of the development order, the city determined that the St. Lucie West development would be consistent with all applicable state, regional, and local comprehensive plans and policies. The proposed development of the district is consistent with the City of Port St. Lucie Comprehensive Plan: 1985, as amended. Exhibit 12. Ernest R. Dike, Jr. is the director of development of Thomas J. White Development Company. He is an expert engineer experienced in the planning, construction and management of large scale communities. Mr. Dike has substantial experience as a civil engineer, and holds an advanced academic degree in planning. He served as director of public works and as city engineer for the City of Port St. Lucie for the three years preceding his employment by White. As White's director of development over the last three and a half years, Mr. Dike assisted in the preparation of the petition; he also identified and explained the exhibits which were admitted into evidence. He assisted in crafting the development order for St. Lucie West which was adopted by the City of Port St. Lucie in February, 1987 and amended on February 27, 1989. Dike has been personally involved with the sales of land from White to other developers of property within the proposed district. All the owners of the real property to be included in the district have given their written consent to the establishment of the proposed district. Since the Thomas J. White Development Company purchased the approximately 4,600 acres which became St. Lucie West, Dike has directed the permitting and approval for all aspects of the project. In the design, White Development Company has accommodated the desires of St. Lucie County to obtain a spring training facility for a professional baseball team. White Development Company agreed to give the county 100 acres of land to build a training facility for the New York Mets. A predevelopment order for the stadium was obtained, which permitted the development of certain roads, a bridge over the Florida Turnpike, and an interchange with Interstate 95 which will all provide access to St. Lucie West These transportation facilities were completed without the use of any state or federal funds. None of these expenses will be born by the proposed district. The establishment of the district would not be inconsistent with any of the elements or provisions of the state comprehensive plan, the regional plan, or the local comprehensive plan. Creation of the district would be the best alternative available for providing water management and control facilities for the land encompassed by the proposed district. The South Florida Water Management District (SFWMD) and the City of Port St. Lucie have concluded that when fully developed, the land would discharge no additional water into the city's stormwater system as compared to the contribution of stormwater by the land made before it was developed by White. Mr. Dike also testified about the debt service required to amortize the debt on any benefit bonds issued by the proposed district, and the cost of operation and maintenance of the surface water control facilities to be constructed by the proposed district. Mr. Dike prepared a spread sheet entitled "Projected Statement of Cash Flow for the Years 1990-2000". (Exhibit 18). The estimated construction costs for water management facilities in the projection are reasonable. Based on White's plans for the district, and utilizing the assumptions for absorption of the residential and commercial space to be constructed, the benefit and maintenance taxes are projected to begin at $114 per taxable unit per year. These benefit and maintenance taxes will rise to no more than $170 per taxable unit per year in 1996. These projections are consistent with the testimony of Mr. Dike and of Dr. Henry Fishkind, an economist. All assumptions made in projecting future benefit taxes are reasonable. While these projections do not bind the district, which is not yet formed, and the district's electors could ultimately decide to assume additional responsibilities, the evidence shows that the benefit and maintenance taxes projected are adequate to pay the debt to be incurred by the proposed construction of surface water management facilities. Lester L. Solin, Jr., testified as an expert in land use planning. He was a planning consultant with the City of Port St. Lucie when the development of St. Lucie West by White Development Company was first under consideration, and worked with the city to formulate the overall development plan. St. Lucie West has been integrated into the future land use map for the City of Port St. Lucie Comprehensive Plan: 1985. Mr. Solin is also familiar with the state comprehensive plan. He has reviewed the application for development approval for the St. Lucie West development of regional impact. The proposed district would be consistent with the state comprehensive plan, Chapter 187 Florida Statutes. Mr. Solin is also familiar with the City of Port St. Lucie Comprehensive Plan: 1985 (Exhibit 12). The creation of the St. Lucie West Services District would not be inconsistent with any of the goals, objectives or policies in that plan. Peter L. Pimentel is the current executive director of the Northern Palm Beach County Water Control District (NPBWD). Mr. Pimentel testified as an expert in special district management, planning, staffing, reporting, and coordination with local governments. As the director of the Northern Palm Beach County Water Control District, he oversees a staff which works with other regulatory agencies on permitting, implementation, planning, construction and operation of water management systems. He coordinates construction with contractors, and engineers, and works with lawyers in carrying out the policies established by the district board of directors. The land encompassed by the NPBWD is approximately 200,000 acres. Mr. Pimentel has substantial experience, having worked as the executive director for two large independent special taxing districts, which are similar in structure and have similar powers as the community development district which White Development Company wishes to establish. Mr. Pimentel's testimony was especially persuasive due to his experience with water control entities. The proposed district is the best alternative available for financing, constructing, owning, operating and maintaining the surface water management and control facility for the area encompassed by the proposed district. It provides a more efficient use of resources, and provides the opportunity for new growth in the district to pay for its own surface water management, rather than imposing that cost on general government. The proposed district would not be incompatible with the capacity or uses of existing local and regional community services and facilities. The area to be served by the proposed district is amenable to separate special- district government. Henry H. Fishkind, Ph.D. testified as an expert economist about the economic consequences of establishing a community development district under Chapter 190, Florida Statutes, the economic consequences of financing the surface water management and control system through the use of tax exempt bonds, and the cost of operating and maintaining those structures by a community development district. Dr. Fishkind prepared the economic impact statement for the proposed district required by Section 120.54, Florida Statutes. The costs to the Florida Land and Water Adjudicatory Commission, and to state and local agencies in reviewing the petition are minimal. The costs to the City of Port St. Lucie and to St. Lucie County have been covered by the $15,000 filing fee which White paid to each of those governments. The cost to the City of Port St. Lucie once the district is operating would be negligible. The potential debt of the proposed district will not become general obligations or debts of the city or county governments. The cost of the surface water improvements will be paid by those who benefit from them. The economic impact statement is adequate, and meets the requirements of Section 124.54(2)(b), Florida Statutes. During the first six years, the proposed district would be controlled by Thomas J. White Development Company since White still would be the largest landowner. Tax exempt benefit bonds would be issued to construct the surface water management facilities. Both White and residents of the proposed district would share the burden of amortizing these bonds through benefit taxes. According to Dr. Fishkind, whose opinion is credited, from an economic perspective: The creation of the St. Lucie West District is not inconsistent with the state and local comprehensive plan; The land to be served by the proposed district is of sufficient size, is sufficiently compact and is sufficiently contiguous to be developed as a functional interrelated community; The proposed district is the best alternative for providing surface water management for the community, since other alternatives such as municiple service taking units or homeowners' associations are more expensive or more cumbersome; The area to be served by the proposed district is amenable to separate special-district government. All factors which are required to be considered in establishing a community development district under Section 190.005(1)(e), Florida Statutes, were analyzed by the witnesses presented by the Thomas White Development Company. Their testimony was persuasive, and the application meets all requirements of Chapter 190.
Conclusions Based on the record made, it is concluded: That all statements contained in the petition are true and correct; The creation of the proposed district is not inconsistent with any applicable element of the state comprehensive plan, or the City of Port St. Lucie Comprehensive Plan; The area in the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functional, interrelated community; The district is the best alternative for delivering water management services to the area to be serviced by the district, and would be superior to the creation of a municipal service taxing unit, a homeowner's association, or to providing water management by the general county government of St. Lucie County; The community development services provided by the proposed district will not be incompatible with the capacity or uses of existing local and regional community development services and facilities; The area to be served by the proposed district is amenable to separate special district government. Accordingly it is recommended that the Florida Land and Water Adjudicatory Commission grant the petition of the Thomas J. White Development Company and adopt a rule pursuant to Section 190.005(f), Florida Statutes (1987), establishing the St. Lucie West Services District. DONE AND ENTERED this 5th day of September, 1989, in Tallahassee, Leon County, Florida. William R. Dorsey, 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 5th day of September, 1989 APPENDIX A Case No. 89-0072 Witnesses Earnest R. Dike, Jr., 590 NW Peacock Loop, Port St. Lucie, Florida. Lester L. Solin, Solin and Associates, 901 Douglas Avenue, Suite 207, Altamonte Springs, Florida. Peter Pimentel, 5725 Corporate Way, Suite 203, West Palm Beach Florida. Dr. Henry H. Fishkind, 201 North New York Avenue, Suite 300 Winter Park, Florida. APPENDIX B Case No. 89-0072 List of Documentary Evidence Exhibit 1. Petition for Rulemaking filed by Thomas J. White Development Company, Inc., including seven exhibits. Exhibit 2. Location Map for the proposed St. Lucie West Services District. Exhibit 3. Future Land Use Map for the area Exhibit 4. Resolution 89-R7 of the city council of Port St. Lucie, Florida, which is the development order for the St. Lucie West Development of Regional Impact. Exhibit 5. Transmittal letter for the Petition for the establishment of the Services District to the City of Port St. Lucie and filing fee, and transmittal letter for the St. Lucie West Development District to the St. Lucie County Board of County Commissioners, and filing fee. Exhibit 6. Transmittal letter for the Petition for the establishment of St. Lucie West Services District to the Florida Land and Water Adjudicatory Commission. Exhibit 7. Letter from the staff of the Florida Land and Water Adjudicatory Commission determining that the Petition appears to satisfy the requirements of Section 190.005, Florida Statutes, and Rule 42-1.009 Florida Administrative Code. Exhibit 8. Resolution 89-R6 from the City of Port St. Lucie, Florida supporting the petition of the Thomas J. White Development Company, Inc. for the establishment of the St. Lucie West Services District. Exhibit 9. Resolution 89-41 of the Board of County Commissioners of St. Lucie County supporting the petition of Thomas J. White Development Company, Inc. for the establishment of the St. Lucie West Services District. Exhibit 10. Proof of publication in the local newspapers and in the Florida Administrative Weekly of the Notice of the Hearing on the petition for the establishment of the community development district and notices to other interested persons. Exhibit 11. Copy of the State Comprehensive Plan Chapter 187, Florida Statutes (1987) Exhibit 12. Copy of the Comprehensive Plan: 1985 of the City of Port St. Lucie, Ordinance 85-102. Exhibit 13. Resume of Ernest R. Dike, Jr., P.E. APPENDIX B CONT. Case No. 89-0072 Exhibit 14. Permit granted to Thomas J. White Development Company, Inc. by the South Florida Water Management District for the construction and operation of a water management system. Exhibit 15. The prepared testimony Lester L. Solin, Jr. Exhibit 16. The resume of Peter L. Pimentel. Exhibit 17. The prepared testimony of Henry H. Fishkind, Ph.D. Exhibit 18. The additional prepared testimony of Mr. Dike including the computer generated spread sheet. COPIES FURNISHED: E. Lee Worsham, Esquire HONIGAMAN MILLER SCHWARTZ and COHN 1655 Palm Beach Lakes Boulevard Suite 600 West Palm Beach, Florida 33401 James C. Vaughn Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32399-0001 William Buezett The Governor, Legal and Legislative Office The Capitol, Room 209 Tallahassee, Florida 32399-0001 Carla Stanford, Esquire Department of Community Affairs 2740 Centerville Drive Tallahassee, Florida 32399-2100 David McIntyre, Esquire County Attorney 2300 Virginia Avenue Fort Pierce, Florida 34982 Roger Orr, Esquire City Attorney 220 South Second Street Fort Pierce, Florida 33450 Patty Woodworth, Director Land and Water Adjudicatory Commission Planning & Budgeting Executive Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001
The Issue Whether the Loxahatchee River Environmental Control District's applications for construction of wastewater collection and transmission systems, specifically, Permit Numbers CS50-298013, CS50-301197, and CS50-305990, should be granted by the Palm Beach County Health Department.
Findings Of Fact Respondent, Palm Beach County Health Department (Health Department) was delegated the authority by the Department of Environmental Protection to review applications and issue permits for wastewater collection and transmission systems pursuant to the Specific Operating Agreement for Delegation of Wastewater Program Authority From the Florida Department of Environmental Protection. The argument specifically referenced Chapter 403, Florida Statutes, and the successor to Title 17, Florida Administrative Code, which is Title 62. Respondent, Loxahatchee River Environmental Control District (ENCON), is a water control district. Petitioner, Village of Tequesta (Tequesta), is a municipal corporation. Petitioner Bermuda Terrace & Pinetree Drive Concerned Citizens (Concerned Citizens) is a coalition of homeowners of record owning property in Bermuda Terrace and on Pinetree Drive. On December 17, 1996, the Health Department issued Permit No. CS50-298013 to ENCON for installation of sewers in Bermuda Terrace and Pinetree Drive. On March 27, 1997, the Health Department issued a Notice of Intent to Issue Permit No. CS50-301197 to ENCON for the construction of sewers in Country Club Point and Anchorage Point. On June 24, 1997, the Health Department issued a Notice of Intent to Issue Permit No. CS50-305990 to ENCON for the construction of sewers in Tequesta Country Club. Currently the wastewater in the areas for which the sewers are proposed to be installed flows into septic tank systems. There are 835 homes on the Tequesta Peninsula that would be hooking up to the proposed sewer system. The Health Department created a review form for internal use in reviewing applications for sewage collection permits. The Sewage Collection Checklist contains the statutory and administrative rule requirements for permitting sewage collection and transmission systems. The applications submitted by ENCON were reviewed using the review form. All three applications met the criteria contained in the applicable statutes and rules. 11. Robert Mitchell, who supervises the permitting for wastewater collection systems for the Health Department, opined that the permit applications provided reasonable assurances that the construction and operation of the sewage system would not discharge, emit, or cause pollution. A sewage collection system does not emit or discharge pollution and, if constructed and functioning according to the technical requirements of the administrative rules, does not cause pollution. Thus, the applications compliance with the technical compliance with Rules 62-604.400 and 62-604.300, Florida Administrative Code, is reasonable assurance that the proposed systems will not cause pollution. 12 The proposed permits contain the following specific condition: Prior to construction, all required permits or approvals must be obtained for all aspects of the project from the appropriate agencies. Any dewatering required by the construction of the wastewater collection/transmission system will have to meet the permitting criteria for that particular activity, which comes under the jurisdiction of the South Florida Water Management District and not the Health Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Permit Nos. CS50-301197, CS50-305990, and CS50-298013 to ENCON for construction of sewer systems. DONE AND ENTERED this 17th day of April, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1998. Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Victoria Coleman, Esquire District 9 Legal Office Department of Health Post Office Box 29 West Palm Beach, Florida 33402 Scott G. Hawkins, Esquire Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive Post Office Box 3475 West Palm Beach, Florida 33402-3475 Timothy W. Gaskill, Esquire Curtis L. Shenkman, Esquire DeSantis, Gaskill, Smith & Shenkman, P.A. 11891 U.S. Highway One North Palm Beach, Florida 33408
The Issue The Appellants raise several issues on appeal, including: whether Ordinance 003-2015 did not comply with the constitutional single subject rule and did the County’s application of the Ordinance violate the Florida Constitution; whether the County exceeded its police power in enacting Ordinance 003-2015 and failed to follow the essential requirements of the law when it applied the ordinance to the Appellants’ property; (3) whether the Planning Commission’s decision violated its obligations to support, protect, and defend the Unites States and Florida Constitutions; and (4) whether the Appellants were deprived of their fundamental due process rights during the Commission hearing.
The Issue The central issue in this case is whether the Petitioners are entitled to an exemption pursuant to Section 373.406(2), Florida Statutes.
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The District is a public corporation in the state of Florida existing by virtue of Chapter 25270, Laws of Florida 1949, and operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code, as a multipurpose water management district, with its principal office in West Palm Beach, Florida. The Petitioner, London Creek Associates, is a Florida general partnership with the address 4545 Pleasant Hill Road, Suite 205, Kissimmee, Florida 34759. The Petitioner, Louis Fischer, is a general partner of London Creek Associates who resides on the property which is the subject of this case. The subject property is commonly known as London Creek Ranch. The subject property is located in Sections 1, 6, and 7, Township 28 South, Range 29 East, Polk County, Florida. The subject property is located within the geographic boundaries of the District's jurisdictional territory. The subject property is owned in fee simple by London Creek Associates. At all times material to the allegations of this case, London Creek Associates has been such owner. In October, 1989, acting in his own behalf and on behalf of London Creek Associates, Louis Fischer contracted with a road excavator to build a road through the subject property. The location of the road was selected as the route which would require the least amount of clearing and the crossing of the least amount of water or swamps. That route was to connect an existing right- of-way and was to traverse the subject property ending at or near the residence occupied by Mr. Fischer. The road was approximately two miles long, tied into a preexisting road for a portion of its length, and crossed about 2000 feet of wetlands. Prior to the construction of the road, neither Mr. Fischer nor London Creek Associates nor anyone associated with the construction project conducted any engineering studies regarding the road or the ditching associated with its construction. Prior to the construction of the road, neither Mr. Fischer nor London Creek Associates nor anyone associated with the construction project conducted any hydrologic studies regarding the road or the ditching associated with its construction. Prior to the construction of the road, neither Mr. Fischer nor London Creek Associates nor anyone associated with the construction project conducted any hydraulic studies regarding the road or the ditching associated with its construction. In constructing the road, materials were excavated from along the sides of the route and placed along the roadbed in order to elevate the road above natural grade. As a result, a series of ditches were created along the sides of the road. Additionally, fill material was brought in from off-site and was used to raise the road above the natural grade. Some of the fill material for the road construction was taken from wetland areas located on the subject property. A portion of the road and ditches were constructed through wetlands on the subject property. The construction of the road altered the topography of the subject property by creating a road at an elevated grade above the natural grade. During the construction of the road, a borrow pit in a wetland area was dug. That pit has since been filled. During the construction of the road, wetland areas were cleared in order to align the road. The road was completed in March, 1990. Petitioners, Louis Fischer and/or London Creek Associates, are responsible for all acts associated with the construction of the road. Prior to the construction of the road across Petitioner's property, neither Louis Fischer nor London Creek Associates applied for, or received, a surface water management permit from the District. On March 20, 1990, the District issued a notice of violation to Louis Fischer regarding the subject road. On August 6, 1990, the District issued an administrative complaint and order 90-29 regarding the subject road. On August 23, 1990, pursuant to the notice of rights attached to order 90-29, London Creek Associates filed a petition pursuant to Section 120.57, Florida Statutes, objecting to the administrative complaint and requested a formal hearing. London Creek Associates' position has been that it is exempt from permitting by virtue of Section 373.406(2), Florida Statutes, which grants agricultural exemptions. On February 25, 1991, the FOTH were granted leave to intervene in order to participate in these proceedings. Certain "works" constructed by London Creek Associates on the subject property are hydrologically connected to wetlands. The road which is at issue in this case is between 12 and 14 feet wide and is elevated above natural grade from 2 to 3 feet. Exact measurements of the road's elevation have not been performed. However, it is sufficient to say that the road will not likely become submerged by normal rainfall events. Three 36 inch concrete culverts, two 12 inch corrugated pipe culverts, and one 18 inch corrugated pipe culvert have been installed to provide drainage under the road. These culverts allow water to overflow ditches from one side of the road to the other side of the road. Thus, the road only temporarily dams water flow. Louis Fischer is the managing partner of London Creek Associates and as such controls the day-to-day operations of that partnership. Mr. Fischer manages London Creek Ranch and oversees its cattle and timber enterprises. Prior to the construction of the road and, in anticipation of future timber cuts, London Creek Ranch has engaged in silviculture activities on the subject property. The road grade and construction will assure that timber vehicles will have access to the property and will be able to remove large loads without fear of impasse. It is expected that the partnership will continue to derive a portion of its income from timber as it has in the past. Prior to the construction of the road and, in anticipation of future efforts, London Creek Ranch has been used for cattle grazing. Cattle grazing leases have generated income to the partnership and it is expected that they will continue to do so in the future. The road grade and construction will assure that cattle trailers will have access to the property during all seasons. At all times material to the allegations of this case, London Creek Ranch has received an agricultural use classification from the Polk County Property Appraiser's Office. That classification entitles the subject property to be assessed ad valorem taxes as an agricultural concern. At all times material to this case, the subject property has been used for agricultural and silvicultural purposes. No other use, inconsistent with agricultural and silvicultural use, has been proposed for the subject parcel. Residences occupied by Mr. Fischer and the ranch foreman are consistent with its agricultural use. The construction of the road which is at issue will assure that the agricultural and silvicultural activities of the Petitioners will not be foiled by inadequate access. The road at issue is consistent with the practice of the uses to which it is being employed. While it may be superior to some "cattle trails," the road is not so improved as to suggest its use is inconsistent with its intended utilization. Further, the construction of the road was not for the sole or predominant purpose of impounding or obstructing surface waters. Surface waters are only temporarily impounded or obstructed by the road. The culverts and ditching associated with the road operate to maintain the natural surface water flows through the area. FOTH is a Florida corporation whose members hunt, fish, and recreate on the properties adjacent to the London Creek Ranch. The FOTH membership is concerned about the preservation of the London Creek areas and oppose development of those properties. FOTH's incorporation and its opposition to the road constructed by the Petitioners coincided with one another. The District has promulgated no rules or has adopted no written policies interpreting Section 373.406(2), Florida Statutes.
Recommendation Based on the foregoing, it is RECOMMENDED: That the South Florida Water Management District enter a final order granting the Petitioners' exemption pursuant to Section 373.406(2), Florida Statutes. DONE and ENTERED this 23rd day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1991. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONERS: The first sentence of paragraph 1 is accepted; the remainder is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 2 through 5 are accepted. Paragraph 6 is rejected as it does not make sense. Paragraphs 7 through 32 are accepted. With the deletion of the words "guaranteed legal" which are irrelevant, Paragraph 33 is accepted. Paragraph 34 is rejected as irrelevant. The Petitioners or any entity claiming an exemption pursuant to Section 373.406(2), Florida Statutes, are not required to show that the access claimed is the only access to the property or that another access is less desirable. With the deletion of the word "sole" paragraph 35 is accepted. Paragraphs 36 through 42 are accepted. Paragraph 43 is rejected as irrelevant. Paragraph 44 is accepted. Paragraphs 45 and 46, including its subparts, are accepted. Paragraph 47 is rejected as argumentative and irrelevant. Paragraph 48 is rejected as argumentative or contrary to the weight of the evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DISTRICT: Paragraphs 1 through 5 are accepted. With the deletion of the word "fill" as it is used before the word "road," paragraphs 6 through 11 are accepted. The District has identified the road in this case as a "fill road" but it is for the purposes of all applicable statutes or rules or policies articulated herein a "road." It is not disputed that fill materials were placed on the roadbed to elevate the road surface above the natural grade. Semantics aside, the road is a road. "Fill" is rejected as irrelevant or contrary to the law applicable to this case. Paragraph 12 is rejected as irrelevant. With the deletion of "fill" (see comment above), paragraph 13 is accepted. Paragraph 14 is rejected as irrelevant or argumentative. Paragraph 15 is rejected as irrelevant. Paragraph 16 is rejected as irrelevant. Paragraph 17 is rejected as irrelevant. Paragraph 18 is accepted with the deletion of the word "fill" as indicated above. Paragraph 19 is rejected as comment, recitation of testimony or irrelevant. Paragraph 20 is rejected as irrelevant or argumentative. Paragraph 21 is rejected as argument, recitation of testimony or contrary to the weight of the evidence. Paragraph 22 is rejected as recitation of testimony or contrary to the weight of the evidence. With regard to paragraph 23, it is accepted that neither Mr. Fischer nor London Creek Associates owns cattle and that their cattle efforts stem from allowing others to graze on the ranch lands; otherwise rejected as argumentative, irrelevant, or contrary to the weight of the credible evidence. With regard to paragraph 24, it is accepted that Petitioners have received revenues from cattle and timber efforts otherwise the paragraph is rejected as irrelevant. The first sentence of paragraph 25 is rejected as irrelevant. The second sentence of paragraph 25 is accepted. The remainder of the paragraph is rejected as contrary to the weight of the evidence. Paragraph 26 is accepted. Paragraph 27 is rejected as irrelevant. Paragraph 28 is accepted with the deletion of the word "fill." Paragraph 29 is accepted. Paragraph 30 is accepted. Paragraph 31 is accepted. Paragraph 32 is rejected as irrelevant. With the deletion of the word "fill," paragraphs 33 through 35 are accepted. The first sentence of paragraph 36 is rejected as irreevant. The remainder of the paragraph is rejected as contrary to the weight of the evidence. Paragraph 37 is accepted. Paragraph 38 is rejected as argumentative or irrelevant or contrary to the weight of the evidence. Paragraph 39 is rejected as irrelevant or argumentative. Paragraph 40 is rejected as recitation of testimony or irrelevant. Paragraph 41 is rejected as recitation of testimony. Paragraph 42 is rejected as contrary to the weight of the evidence. The road in dispute may be more passable than "cattle trails" or less improved roads but its use is not inconsistent with agricultural and silvicultural purposes. Paragraph 43 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 44 is rejected as irrelevant. Paragraph 45 is rejected as irrelevant. It is accepted that the road in dispute provides access to both Mr. Fischer's and his foreman's homes. That it also provides access for bona fide agricultural and silvicultural purposes is why it does not require a permit. Paragraph 46 is accepted. With the exception of the last sentence, paragraph 47 is accepted. The last sentence is rejected as contrary to the weight of the evidence. Paragraph 48 is rejected as argumentative or irrelevant. It is not disputed that the road is above the natural grade. Paragraph 49 is accepted with the deletion of the word "fill." Paragraph 50 is rejected as argumentative or attempt to recite testimony. In the alternative the paragraph is rejected as irrelevant as to whether the road has been used for timber harvesting since future harvesting will require the road. Paragraph 51 is rejected as irrelevant. The issue in this case is whether the road was constructed for the sole or predominant purpose of impounding or obstructing surface waters. Paragraph 52 is accepted. Paragraph 53 is rejected as irrelevant or a statement of fact contrary to the weight of the credible evidence presented. It has not been disputed, however, that the Petitioners sought to construct a road that would be passable during all seasons for the purposes expressed herein. Paragraph 54 is rejected as irrelevant or contrary to the weight of the evidence or a recitation of testimony not fact. Paragraph 55 is accepted to the extent that it suggests surface waters flowed across this parcel in the areas where the road was constructed and that further the culverts assure that the flow remains the same as prior to the road. Otherwise rejected as irrelevant or recitation of testimony. Paragraph 56 is accepted. Paragraph 57 is rejected as argumentative, comment on testimony or irrelevant; see comment re: paragraph 55. Paragraph 58 is rejected as contrary to the weight of the credible evidence. With regard to paragraph 59 it is accepted that Mr. Ady correctly described the location and size/number of culverts; otherwise, rejected as irrelevant. Paragraph 60 is rejected as contrary to the weight of the evidence. Paragraph 61 is accepted. Paragraph 62 is rejected as argument or contrary to the weight of the evidence or irrelevant given the promulgated rules, policies and applicable statutes in effect at the times material to this case. Paragraph 63 is rejected as comment, recitation of testimony or contrary to the weight of the evidence. Paragraph 64 is rejected as contrary to the weight of the evidence or recitation of testimony. Paragraph 65 is rejected as contrary to the weight of the evidence and argumentative. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE INTERVENOR: The findings of fact submitted by FOTH mirror those submitted by the District and have been addressed above. Those paragraphs not previously considered are identified below. The first sentence of paragraph 45 is accepted; the remainder is rejected as irrelevant. Paragraph 46 is accepted. Paragraph 47 is accepted. Paragraph 48 is rejected as contrary to the weight of the evidence. Paragraph 49 is rejected as contrary to the weight of the evidence. Paragraph 50 is accepted. Paragraphs 51 and 52 are accepted. Paragraph 53 is rejected as argumentative or irrelevant. COPIES FURNISHED: Tilford Creel Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 John J. Fumero Associate Attorney South Florida Water Management District 3303 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 Joseph W. Landers, Jr. Landers & Parsons Post Office Box 271 Tallahassee, Florida 32302 Carl W. Hartley, Jr. HARTLEY & WALL Suite 2810, Sun Bank Tower 200 S. Orange Avenue Post Office Box 2168 Orlando, Florida 32802
Findings Of Fact FEC is the owner and developer of the project at issue in this proceeding, an industrial park to be located on 322.1 acres in Section 32, in the Town of Medley, in northwestern Dade County, Florida. Not at issue in this proceeding is the related but separate project planned by FEC for construction in Section 6, an unincorporated area of Dade County, lying immediately southwest of the property at issue. FEC proposes 5,193,570 gross feet of floor space for the project, to be constructed in six phases. Seventy-four percent of the floor area is to be completed or under construction within the first five years of the park's operation. Expected uses of the park, when completed, are expected to fall into four general categories: Distribution, comprising 792,516 square feet; wholesale trade, 2,509,018 square feet; manufacturing, 873,520 square feet; and offices and services of 1,017,515 square feet. There is no specification of what types of industries will be located in the project, or what types of chemicals or materials each may handle. FEC has applied for and received various approvals of the proposed industrial park. On June 6, 1983, the South Florida Regional Planning Council ("RPC") recommended approval of the FEC proposal, with conditions. On August 1, 1983, the town council of Medley adopted Resolution No. C-426, which approved and issued a development order for a development of regional impact for the project. Before the issuance of the Medley development order, Metropolitan Dade County adopted its own development order, Resolution No. Z-114-83, on June 23, 1983, approving the development proposed for Section 6 in the unincorporated area of the county. In September, 1983, DCA appealed the Medley development order. On October 3, 1983, the RPC voted not to appeal that order. The proposed project is located in an industrialized and largely unsewered area. The FEC property surrounds or abuts numerous out parcels within Section No. 32, which are served only by septic tank disposal systems, unlike the sewer system planned for the FEC development. The Northwest Wellfield is located about three miles to the southwest of the proposed FEC industrial park at its closest point to Section 32, and about four miles from the furtherest reach of the park. The wells of the Northwest Wellfield form a line about two miles west of the Florida Turnpike, and four miles southwest of Medley. The wellfield presently comprises 15 wells, each 42 inches in diameter, fully penetrating the Biscayne Aquifer to a depth of about 70 feet. The county has equipped each well with a two-speed pump capable of producing ten million gallons per day (MGD) at low speed, and about 15 MGD at high speed. Current maximum capacity of the wellfield is about 225 MGD. The county holds a valid consumptive use permit from the South Florida Water Management District authorizing an average pumpage of 50 MGD. The county has applied for a permit to increase the pumpage to 180 MGD. The county is presently pumping the wellfield at the rate of 140 MGD to offset the reduction in pumpage from the Hialeah and Miami Springs wellfields as a consequence of the discovery of contamination in those fields. The Hialeah and Miami Springs wellfields are currently pumping at a rate varying from three to ten MGD. The Northwest Wellfield, completed in 1983, at a cost to the public of $38,000,000, is located within the Biscayne Aquifer, which underlies all of southeastern Florida, including all of Dade County, from north of Boca Raton to the northwest area of Monroe County. The Biscayne Aquifer is a highly permeable, unconfined shallow aquifer composed of limestone and sandstone. The aquifer is a regional resource, serving as a sole source of potable water for the approximately 1.8 million residents of Dade County. Because of its cavernous nature, the aquifer has high vertical and horizontal permeabilities, permitting both rapid infiltration of rainfall as recharge to the aquifer, and rapid drainage through canals. Recharge to the aquifer is primarily from rainfall. In the latter part of the dry season, however, the main recharge to the aquifer results from infiltration from canals fed from water conservation areas. Net recharge from rainfall to the aquifer ranges from 8 to 20 inches per year. Because of wide fluctuations in annual rainfall amounts in South Florida, recharge from canals to the wellfield is important. The South Florida Water Management District operates an intricate system of canals, levees, control structures, and large water conservation areas for flood control, water conservation, and salinity control. These systems significantly affect water levels in the Biscayne Aquifer, including the area around the Northwest Wellfield. The levees impound fresh water and prevent overland sheet flow from the Everglades eastward through agricultural and urban areas. The complex system of interconnected canals provides necessary drains for the urban coastal areas in the wet season and transfers water from the conservation areas during the dry season to replenish water in the aquifer removed by various municipal and county wellfields. Water levels in the canals are controlled by opening or closing control structures during the wet season to prevent flooding in urban agricultural areas, and leaving the structures closed during the dry season to conserve fresh water and limit saltwater intrusion. Canal levels usually reach their seasonal lows in May. In the vicinity of the Northwest Wellfield, the system of levees and canals provides a substantial amount of recharge to the wellfield. The canal most significantly affecting water levels in the Northwest Wellfield is the Snapper Creek Canal, a borrow canal running immediately east of and parallel to the Turnpike, about two miles east of the wellfield. The Snapper Creek Canal borders the western line of the FEC property in Section No. 6 and lies about one mile west of Section No. 32. The terms "cone of influence" or "cone of depression" are terms applied to the area around a well from which the well draws water. Before a well commences pumping, ground water fills the pores and fractures in underground rock formations to a water level at which the fluid pressure of the ground water equals the atmospheric pressure exerted from above. Pumping the well reduces the fluid pressure of the ground water in the vicinity of the well, and results in a cone of depression or influence. Viewed from above, a drawing of a hydrologic cone of depression appears roughly circular, centered on the pumping well. A cross section of the cone would show an inverted shallow cone in the upper aquifer, whose lowest point coincides with the intersection of the cone where it enters the well. Pumping the well creates a down gradient for water below the area of the cone to flow toward the well. A "hydrologic cone of influence" is that point marking the outer bounds of the influence of a pumping well at a given point in time. A "regulatory cone of influence" arbitrarily fixes the location of the cone as a zone in which activity is regulated. The extent of a regulatory cone depends upon policy decisions taking into account the margin of safety deemed necessary for the protection of a well, regardless of the actual location of the hydrologic cone and technology available to protect ground water. The generally accepted value adapted by most regulatory agencies for the "regulated cone of influence" of a wellfield is the 0.25 foot draw-down line. This is so because it is also generally accepted that, with proper engineering practices and proper annual inspections, potential contaminants be generated and stored within this regulated cone of influence without inordinate risks of contamination to the underlying aquifer. The extent of a hydrologic cone of influence varies continuously, and is dependent upon the characteristics of the involved aquifer, such as its ability to transmit and to retain water, as well as the pattern and the amount of rainfall in the area, and the effect of nearby streams or canals. In addition, the rate of pumping of a well controls the extent of the cone of influence under any given set of aquifer conditions. Dade County regulates land uses in the area of the Northwest Well field according to whether property falls within the projected cone of influence of the field. In March, 1981, Dade County adopted an ordinance prohibiting the handling, use, transportation, disposal, storage, discharge, or the generation of hazardous materials in an area west of the Florida Turnpike, defined as being within 210 days travel time for a hypothetical particle of contamination to the Northwest Wellfield. That initial protective zone lay entirely to the west of the Turnpike, and included neither Section 6 nor Section 32. As a result of further study and computer modeling, the county subsequently adopted Ordinance No. 83-82 on September 20, 1983, amending the map of the cone of influence for the Northwest Wellfield, and adopting new regulations requiring the use of sewers instead of septic tanks in industrial areas. The amended map projected a cone of influence that greatly expanded the protective zone around the wellfield, and included both Section 6 and Section 32. The regulatory cone of influence selected by Dade County does not conform to the hydrological cone of influence, but excepts instead the area around the well depressed by 0.25 feet or more from the original unpumped surface. The county based its modeling of the regulatory line on an assumed pumpage of 150 MGD for the Northwest Wellfield, which is approximately equal to its present pumpage, and 75 MGD from the Miami Springs, Hialeah, and Preston wellfields, which is approximately ten times the current combined rate of pumpage for those fields. In addition, in running its computer model, the county conservatively assumed the highly unlikely condition for the aquifer--a 210-day period during which the aquifer would receive no recharge from rainfall. This "worst case" condition has never occurred during this century. In addition to this assumption, the county's computer modeling also ignored the substantial contraction of the cone during every wet season because of rainfall recharge, and omitted consideration of recharge to the wellfield from canal systems in the area. Within the line defined by its regulated cone of influence, Dade County currently bans all use, handling, generation, and transportation of hazardous materials. The cone of influence currently contained in the county's ordinances includes all of Section 32, including FEC's proposed project. Dade County Ordinance No. 83-82 is considered an interim regulation, intended to remain in force while Dade County continues to gather information concerning the aquifer in the vicinity of the Northwest Wellfield under pumping conditions. Since the enactment of the wellfield protection ordinance, Dade County has initiated a study to formulate a more detailed management plan for the wellfield. Dade County is conducting the study and generally implementing its environmental regulation and wellfield protection through its Department of Environmental Resources Management (DERM). DERM's powers extend into municipal areas, such as Medley, as well as throughout the unincorporated area of Dade County. The agency has a budget in excess of $5 million annually. Both within the municipalities and throughout the unincorporated areas of Dade County, DERM reviews building permit applications of all industries expected to potentially discharge chemicals into sewer systems. DERM requires all such industries to obtain an annual permit under Section 24-35.1 of the Dade County Code, and to install pretreatment facilities to ensure that no unsafe chemicals are discharged directly into sewers. In addition, DERM requires that all users or generators of hazardous materials throughout Dade County follow best management practices, including ground water monitoring, when appropriate. A special section of the agency focuses on the enforcement of hazardous materials regulation. In addition, Dade County has initiated a hazardous waste cleanup fund, a liquid waste transporter's permit ordinance, and regulation for underground storage facilities for hazardous materials. Further, Dade County has adopted Resolution No. R-114-84, which incorporates a non-exclusive list of numerous hazardous materials subject to regulation under the wellfield protection ordinance and other regulations. The more credible evidence of record in this cause establishes that even should Dade County remove the current ban on hazardous materials in Section 32, the proposed industrial park, as restricted by the Medley development order, would pose no significant threat of contamination to the Northwest Wellfield. As modeled under realistically conservative assumptions, including pumpage rated far exceeding the presently permitted legal rate of 50 MGD, the Northwest Wellfield hydrological cone of influence would reach into Section 32 for no more than one or two months per year, at the end of the dry season. For most of the year, the Snapper Creek Canal will act as a natural recharge boundary for the Northwest Wellfield. The canal would normally carry sufficient water northward from the Tamiami Canal to maintain a pressure head in the canal, driving water into the aquifer on both sides, replenishing the water drawn by the wellfield in the area west to the canal, and holding the cone of influence at the west side of the canal. On the east side of the canal, ground water would resume its natural flow to the southeast or east, unaffected by pumping in the Northwest Wellfield. During the dry season, the recharge mound in the Snapper Creek Canal would diminish, and the cone of influence could gradually expand, possibly recharging Section 32 for a month or two at the end of the dry season. As soon as the rainy season commenced again, however, the canal would fill up rapidly and resume its function as a recharge boundary. The more credible evidence establishes that it is highly unlikely that ground water contaminants originating from Section 32 would ever reach the Northwest Wellfield. Ground water moves only a few feet or even inches per day in the Biscayne Aquifer. Because Section 32 is located three to four miles from the Northwest Wellfield, the gradient to the wells in the cone of influence in Section 32 is extremely slack. In the driest of droughts, a hypothetical plume of contaminants beneath Section 32 would move only slightly towards the wellfield. At the return of the wet season, the gradient draining ground water from Section 32 eastward to the Miami Canal would be very steep and would rapidly flush any contaminants away from the wellfield and its cone of influence. The Medley development order imposes several restrictions on the development which protect the Northwest Wellfield from any threat of potential contamination from the proposed industrial park. The development order requires the removal of all exotic vegetation and the planting of native species to reduce the demand for water and the use of fertilizer, a potential contaminant; restricts irrigation in the project to the use of non-potable water from onsite lakes and wells; obligates FEC to construct, or provide $600,000 to the Dade County Fire Department for construction of, a fire station according to county specifications within the primary response district for Section 32, to improve the fire department's capability to respond quickly to any spill of hazardous materials; requires FEC to submit to the RPC, Dade County and Medley a detailed management operation plan within six months of the date of issuance of the development order; and further requires that FEC submit a hazardous material spill contingent fee and response plan to the RPC, Dade County, and Medley within one year of the date of the development order. The development order contains detailed criteria for the management/operation plan, including inspections, monitoring, and the use of best management practices designed to minimize the risk of contaminating ground water. Further, these requirements include approval of specific standards for hazardous materials accident prevention, mitigation, and response; adequate pre-treatment facilities to assure segregated retention of hazardous waste and their removal and disposal in accordance with local, state, and federal requirements; that all facilities be readily open for inspection by Medley and DERM; and appropriate storage and accurate labeling of hazardous materials. The order also requires that FEC receive review and approval of its plans by the RPC, Medley, and Dade County. The RPC will, if deemed appropriate, in the course of review, impose its customary policy of ground water monitoring for a project using or generating hazardous materials. The development order provides that whatever wellfield protection regulations Dade County might adopt after further monitoring of the Northwest Wellfield will apply to the FEC project in Section 32. The RPC compiled, and Medley adopted, in the development order, "Table 22" as a tool for determining the types of land uses that should be excluded from locating in the proposed industrial park. In the event Dade County were to remove the present ban on hazardous materials in Section 32, the Medley development order requires that every firm and industry listed in Table 22 desiring to locate in the development to apply to RPC, Dade County, and Medley for a waiver of restriction on hazardous materials, based upon the tenant's demonstration that its use of appropriate best management practices or other measures will adequately protect the environment. These applications would be reviewed on a case-by-case basis to determine the adequacy of proposed protected measures. This condition is imposed in the development order in addition to existing local, state, and federal permitting requirements. Further, Dade County also independently requires the use of best management practices, including monitoring when appropriate, by any industry using hazardous materials in Dade County. In summary, the evidence in this cause establishes that the current ban imposed by Dade County on the use, handling, generation, and transportation of hazardous materials in Section 32, when viewed in the context of the existing hydrological system in the area and the conditions imposed upon FEC in the Medley development order, combine to demonstrate the lack of a permanent ban on hazardous materials in Section 32 will pose no significant threat to the Northwest Wellfield. There is no evidence of record in this proceeding to demonstrate that the proposed project is in any way inconsistent with an existing state land development plan, any local land development regulation, or the regional planning council report.
Findings Of Fact By Pre-Hearing Stipulation, the parties agreed, and it is so found, that the District is a public corporation in Florida under Chapter 373, Florida Statutes, and Chapter 40E, F.A.C.. It exists as a multipurpose water management district with its principal office in West Palm Beach. Respondent James P. McCarthy and his wife, Rebecca, reside at 6017 Southern Road South in West Palm Beach. This property is located within Section 3, Township 44 South, Range 42 East, in Palm Beach County. On December 31, 1991, the District issued a Notice of Violation to the Respondent notifying him that his 2 inch pvc irrigation line, exposed near the top of the bank due to erosion, constituted an encroachment on the District's right-of-way adjacent to Canal 51 at the rear of his property. The line was not removed. On April 9, 1992, the District issued its Second Notice of Violation to Respondent McCarthy assessing a civil penalty in the ultimate amount of $560.00 for the same alleged encroachment, and on April 24, 1992, Mr. McCarthy filed his Petition for Formal Hearing to contest that action. Mr. McCarthy does not contest the fact that the line exists as indicated by the District but debates the allegation that it constitutes an encroachment violation requiring a permit, contending that the District has failed to properly complete the work it promised to do on his property, the completion of which is a condition precedent to the requirement for a permit. The South Florida Water Management District owns a right-of-way located on the south bank adjacent to C-51 canal in West Palm Beach, and the McCarthy's property is adjacent to that right-of-way. They have constructed a 1 1/2 inch PVC lawn irrigation line from the sprinkler system in their backyard beneath and across the District's right-of-way into the canal. According to Douglas Sykes, the District's senior engineering field representative in the area, who inspected the McCarthy's pipe line subsequent to the completion of the Corps' work, the line meets the District's standards and is permittable. All that is required is for McCarthy to make the requisite application and pay the permit fee. On April 17, 1989, the McCarthys and the District entered into a written Settlement Agreement by which both granted deeds to each other for portions of the land adjacent to the canal for the payment of the sum of $11,000.00, plus attorneys fees, to be paid to the McCarthys. This agreement did not, however, address either the slope or grade of the canal bank adjacent to the McCarthy property. The bank slope was to be constructed by the U.S. Army Corps of Engineers in accordance with their proposed constructions plans. The agreement did, however, call for the McCarthys to obtain an irrigation permit pursuant to District criteria "after completion of construction." The Director of the District's Right-of-Way Division, responsible for the enforcement of the occupancy regulations in the right-of-way, considered the canal complete when the Corps ceased its construction activities and removed its equipment. This was done before September, 1991. The Corps notified its contractor that it accepted the C-51 project as complete on March 20, 1991. Mr. Sykes also inspected the area subsequent to the departure of the Corps' contractor. He found the work to be consistent with the District requirements, though as late as June, 1992, some additional work was being done by the District on property to the east of the McCarthy property. There is some indication that when the District sought permission to cross McCarthy's property line to access that work area, permission was denied. The District crossed McCarthy's property anyway, causing some minor damage. This work has now ceased. The District employee who negotiated the settlement agreement with the McCarthys intended for the term "completion of construction" to mean the moment when the Corps relinquished its control of the right-of-way to the District. This was done on September 4, 1991. Other landowners applied for and received permits for irrigation lines when the Corps' contractor left the site. As McCarthy tells it, in early 1990, after the settlement agreement was signed, the heavy construction was begun on the canal project and the trees were removed. A roadway was put in and the contractor began to install a large earthenware berm on the property. After some of it was done, he stopped the workers and found that the berm should go on another property. It was removed and after that, no other work was done. Mr. McCarthy contends the agreed-upon canal bank was not properly constructed by the Corps. He claims the Corps' contractor left the canal bank without the required grading and in a rough state without sod. This is, supposedly, the only parcel that was not graded properly or sodded. He was left with a 1 1/2 :1 slope - very steep, and he complained about this in writing to the District because it was not what he claims they had all agreed upon. Mr. Shattner, the District's Director of Construction Management, indicates that regardless of what drawing is examined, the slope is no more gentle than 2:1. Throughout 1990 and 1991, Mr. McCarthy alleges, he repeatedly advised the District that it had not lived up to their agreement but never got an answer. The agreement does not define the slope to be used except as it referred to a survey which was supposedly attached to the agreement. Towards the end of 1991, Mrs. McCarthy wrote to Mr. Swartz of the District about the work but received no answer. She then called the office of Mr. Creel, the District Executive Director, to complain. On December 19, 1991, someone called back and agreed to send someone out to look at the berm. No one came, however, and the next contact with the District was the violation letter of December 31, 1991. Mr. McCarthy has repeatedly taken the position with the District that it has not lived up to the terms of its agreement with him and he will not apply for a permit for the line until the construction is completed properly. The current line complained of by the District is temporary and will be destroyed by the corrective construction. The residue of the Corps' work remaining on his property is, he complains, unsafe. It does not conform to either the county code or the District's own manual which calls for a 4:1 ratio.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued dismissing the assessment of the currently assessed $560.00 civil penalty against the Respondents herein, James and Rebecca McCarthy, but requiring them to apply within 30 days from the date of that Order for a permit to construct and maintain an irrigation pipeline across the District's right-of way for Canal C-51 at the rear of their property. RECOMMENDED this 30th day of December, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 30th day of December, 1992. COPIES FURNISHED: Scott A. Glazier, Esquire Toni M. Leidy, Esquire South Florida Water Management District P.O. Box 24680 West Palm Beach, Florida 33416-4680 James P. and Rebecca R. McCarthy 6017 Southern Boulevard South West Palm Beach, Florida 33415 Tilford C. Creel Executive Director South Florida Water Management District P.O. Box 24680 West Palm Beach, Florida 33416
The Issue The issues to be determined in this appeal are whether the decision of the Board to approve Flexible Development Application FLD2019-01002 (Application) filed by Edgewater Valor cannot be sustained by substantial competent evidence before the Board, or that the decision of the Board departed from the essential requirements of law.
Findings Of Fact Edgewater Valor proposes to develop an 80-unit attached dwelling with 164 associated off-street parking spaces on 2.931 acres of property it owns. The property is located at 1026 Sunset Point Road and 1919 Edgewater Drive in Clearwater, Florida. The proposal consists of three buildings and a structured parking platform with a pool and deck on the west side of the parking platform. Sixty percent of the 164 parking spaces is garage parking, with the rest as exposed surface parking. Two of the buildings, both in the T district, are proposed at a height of 86 feet measured from base flood elevation. The third building, in the MDR district, is proposed at a height of 38 feet measured from base flood elevation. The buildings in the T district are set back 152 feet from the east property line. The building in the MDR district is set back 75 feet from the east property line. The proposal includes landscaping and setbacks that exceed the Board's requirements for approval. The Application requests Level Two approval of flexibility for a building height of 86 feet from base flood elevation in the T zoning district. A Level One approval allows a building height of up to 50 feet, and up to 100 feet as a Level Two approval. The Application also requests Level Two approval of flexibility for an attached dwelling use in the MDR zoning district. The attached dwelling has a building height of 38 feet from base flood elevation, where up to 40 feet is allowed as a Level Two approval and flexibility from lot width in the MDR zoning district. Edgewater Valor owns 2.437 acres of the property which is zoned T with an underlying Comprehensive Plan Future Land Use category of Resort Facilities High (RFH). The remaining 0.494 acres is zoned MDR with an underlying Comprehensive Plan Future Land Use category of Residential Medium (RM). The property to the north of the proposed development is zoned T and is currently developed as a Comfort Suites hotel. The property to the south is zoned Office (O), MDR, and Preservation (P). There is a vacant automobile service station adjacent to the proposed development to the southwest, and a multi-family development to the south across Sunset Point Road. The property to the east is zoned MDR and P with single-family detached dwellings and attached dwellings further east along Sunset Point Road. The property to the west is zoned Commercial (C) and P. EDNA's boundaries are Sunset Point Road north to Union Street, and Edgewater Drive east to Pinellas Trail. The neighborhood consists of 400 homes that are mostly single-family, single-story detached dwellings. The proposed development would be located in the southwest corner of the neighborhood at the intersection of Edgewater Drive and Sunnydale Drive. The Comfort Suites hotel is located directly across from the proposed development on the opposite corner of Sunnydale Drive and Edgewater Drive. Sunnydale Drive travels east away from Edgewater Drive and dead-ends as a cul-de-sac with mostly single- family detached dwellings.
Findings Of Fact The Department of Environmental Regulation published notice of this land use hearing on March 21, 1981 in the Florida Times-Union newspaper. Notice was also published in the Florida Administrative Weekly. The Applicant, Jacksonville Electric Authority, (hereinafter JEA) posted notice of this hearing at the proposed site and the Department of Environmental Regulation (hereinafter DER) mailed notice of this hearing to the chief executives of the local and regional authorities with responsibility for zoning and land use planning whose jurisdiction includes the site. JEA is an electric utility and agency of the City of Jacksonville. Its application in this proceeding seeks site certification for the construction of a coal-fired electric generating plant and ancillary facilities, including a coal unloading facility and ancillary facilities, including a coal unloading facility and associated transmission lines, all of which are to be located in Duval County, Florida. The proposed site comprises approximately 1,636 acres located north of the St. Johns Rive in northern Duval County, immediately contiguous to JEA's existing Northside Generating Station. Ordinance 80-1290-700 of the City of Jacksonville was adopted specifically for the purpose of zoning the land which comprises the site for which certification is sought in a classification which allows the land use JEA intends by its application. The Ordinance zones the site as GU, Government Use, a zoning classification which does allow the use to which the land will be put by the Applicant should the site be certified. By the terms of this Ordinance, the classification GU shall apply to the subject land on the date that Fee Simple title to that land passes to the Jacksonville Electric Authority. To the extent that Fee Simple title to that land has not already passed to the Jacksonville Electric Authority, the subject land is currently zoned IH, Industrial Heavy. JEA is a governmental agency of the City of Jacksonville and possesses all powers of eminent domain necessary to acquire the land comprising the site. The foregoing zoning classification does not apply to any land located within Government Lot 2, Section 6, Township 1 South, Range 28 East. JEA has stated that it has not intent to develop any part of Government Lot 2 within the proposed site and it is therefore not considered part of the site. The site certification application includes a proposed coal unloading facility to be located on approximately 55 acres of Blount Island, contiguous to the St. Johns River, and owned by the Jacksonville Port Authority, another agency of the City of Jacksonville. That 55-acre parcel is currently zoned IW, Industrial Waterfront, and a coal unloading facility is consistent with the uses allowed within the IQ zoning classification. The site certification application includes certain directly associated transmission lines to connect the proposed generating facility to the existing transmission network. The preferred corridors for these directly associated transmission lines extend in the same general direction as the existing transmission lines from JEA's Northside Generating Station and will run to existing substations in all cases. Transmission lines, substations and similar installations are classified as "essential services" and as such are permitted in any zoning district within Duval County without any unique zoning to allow that land use. The use of the proposed site, including the coal handling facility and directly associated transmission lines, are all consistent with the elements of the 2005 Comprehensive Plan of the City of Jacksonville relating to land use. The plant site and the coal unloading facility appear on the land use plan map as "water related industrial" uses, and JEA has stated its intent to comply with the locational criteria for transmission lines found in the electric utility element of the City of Jacksonville 2005 Comprehensive Plan. The 2005 Comprehensive Plan has been approved by the State Department of Community Affairs and the Northeast Florida Regional Planning Council for consistency with state and regional land use planning requirements.
The Issue The issue for determination is whether Petitioner's revocation of Respondent's modified permit, authorizing a cross- fence on Petitioner's fee owned right-of-way, should be approved.
Findings Of Fact The South Florida Water Management District (District) is a public corporation in the State of Florida, existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multi-purpose water management district. The District's principal office is West Palm Beach, Florida. In executing its multi-purpose, the District, as local sponsor for the US Army Corps of Engineers' Central and Southern Florida Flood Control Project, acquired canal rights-of-way. The District's rights-of-way were acquired to enable the Corps of Engineers to construct the flood control project and to maintain the system after its construction. The District operates a proprietary-based right-of-way program to manage the various property interests of the canal rights-of-way. The purpose of the District's right-of-way program is, to the extent possible, to allow uses of the rights- of-way that do not conflict with the flood control project. The rights-of way are used by both public and private concerns, including adjacent property owners, governmental entities, and utility companies. Jesus G. Quevedo is a private individual. His address is 2615 North Federal Highway, Lake Worth, Florida. The property at this address was vacant when Mr. Quevedo purchased it, and he has owned the property for approximately ten (10) years. The District has fee simple title to a strip of land on the south side of the District's C-51 Canal, immediately west of the Federal Highway/Olive Avenue bridge (C-51 Right-of-Way). Mr. Quevedo's property is located at the side of and adjacent to the C-51 Right-of-Way. The C-51 Right-of-Way is also located within the boundaries of Spillway Park as established in the agreement between the District and the City of Lake Worth. Generally described, Spillway Park includes the District's fee simple owned right-of-way on the south side of the District's C-51 Canal, beginning at the west side of the Federal Highway/Olive Avenue bridge and continuing to the east side of the Dixie Highway bridge. Mr. Quevedo has no real property interest in the C-51 Right-of-Way. Prior to purchasing his property, Mr. Quevedo was aware that the District owned the C-51 Right-of-Way. Historically, portions of Spillway Park and the C-51 Right-of-Way, in particular, have been a unique and popular location for excellent snook fishing by the public. These areas continue to be considered as such. On February 11, 1993, Mr. Quevedo was issued SFWMD Permit No. 9801 (Permit), a right-of-way occupancy permit, by the District’s Governing Board. The Permit authorized him to make use of the District’s lands and works as follows: 20’ X 50’ BOAT DOCK WITH WALKWAY, BURIED WATER AND ELECTRICAL SERVICE, POP-UP SPRINKLERS, AND SODDING WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED IMMEDIATELY WEST OF THE OLIVE AVENUE/FEDERAL HIGHWAY BRIDGE. During the permit application process, but prior to the issuance of the Permit, Mr. Quevedo had discussed with the District's staff the erection of a cross-fence based on allegations of improper or criminal activities by members of the public. Subsequently, in November 1995, Mr. Quevedo again discussed with the District's staff erection of a cross-fence based on the same allegations but he also included a new allegation of public safety as to the C-51 seawall. Based on the concern for public safety, the District's staff recommended that Mr. Quevedo be granted a modification to the Permit for a cross-fence. On November 14, 1996, the District's Governing Board approved, as part of its consent agenda, and issued SFWMD Permit MOD No. 9801 (MOD Permit)3 authorizing the following: CHAIN LINK CROSS FENCE WITH 16’ VEHICULAR GATE ALONG THE WEST PROPERTY LINE WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED AT 2615 NORTH FEDERAL HIGHWAY. The MOD Permit, as did the Permit, provides in pertinent part on its face the following: The permittee, by acceptance of this permit, hereby agrees that he shall promptly comply with all orders of the District and shall alter, repair or remove his use solely at his expense in a timely fashion. . . . This permit is issued by the District as a license to use or occupy District works or lands. . . By acceptance of this permit, the permittee expressly acknowledges that the permittee bears all risk of loss as a result of revocation of this permit. The MOD Permit, as did the Permit, contained standard limiting conditions, as provided in Rule 40E-6.381, Florida Administrative Code, and special conditions. The limiting conditions provide in pertinent part as follows: Permittee agrees to abide by all of the terms and conditions of this permit, including any representations made on the permit application and related documents. . . . This permit does not create any vested rights, and except for governmental entities and public or private utilities, is revocable at will upon reasonable prior written notice. Permittee bears all risk of loss as to monies expended in furtherance of the permitted use. Upon revocation, the permittee shall promptly modify, relocate or remove the permitted use. In the event of failure to so comply within the specified time, the District may remove the permitted use and permittee shall be responsible for all removal costs. This permit does not convey any property rights nor any rights or privileges other than those specified herein. . . . Having been granted the MOD Permit, Mr. Quevedo erected the cross-fence within and onto the C-51 Right-of-Way. The C-51 Right-of-Way is located adjacent to Mr. Quevedo’s property, as indicated earlier, and continues westerly to the permitted cross-fence. The C-51 Right-of-Way is enclosed by the cross-fence, preventing access by the public, and is located easterly of the cross-fence. As the C-51 Right-of-Way is located within the boundaries of the Spillway Park, the cross- fence is also located within the boundaries of the Spillway Park. During the time that Mr. Quevedo has owned his home, including prior to and after erection of the cross-fence, he, his family members and/or guests have frequently fished from the C-51 seawall and used the C-51 Right-of-Way enclosed by the cross- fence. Prior to and after the erection of the cross-fence, Mr. Quevedo and his family members have selectively controlled access by the public to the C-51 Right-of-Way at the C-51 seawall. Prior to the erection of the cross-fence, Mr. Quevedo chased members of the public off the C-51 Right-of-Way. Mr. Quevedo and members of his family also called law enforcement officers to remove members of the public who were located on the C-51 Right-of-Way, even if the members of the public were fishing from the C-51 seawall. After the erection of the cross-fence, Mr. Quevedo and his family members continued to engage in this conduct of selective access. Subsequent to the erection of the cross-fence, Mr. Quevedo had a member of the public arrested for trespassing. The person allegedly jumped over or went around the cross-fence to fish from the C-51 seawall in the C-51 Right-of-Way. With the existence of the cross-fence, Mr. Quevedo has prevented the general public from using the C-51 Right-of-Way, including the C-51 seawall. As a result, he has acquired the exclusive, private use of the C-51 Right-of-Way at the C-51 seawall, which is publicly owned land, and has, almost doubled the size of his adjacent property without the obligations and expense of acquisition, assuming he could acquire the property through acquisition. The District's policy is that public land should be open to the public. Contrary to this policy, Mr. Quevedo's cross-fence precludes access to the District's right-of-way (C-51 Right-of-Way), including the seawall, for passive recreational use. Similar cross-fencing, although not within the boundaries of Spillway Park, have been erected behind residences on the northeast, northwest, and southeast sides of Federal Highway, along the District’s C-51 Canal bank. The cross-fencing prevents public use of the District’s C-51 Canal bank at these locations. The City of Lake Worth made improvements within the boundaries of Spillway Park; however, it made no improvements, and does not intend to make any improvements in the future, at the C-51 Right-of-Way where Mr. Quevedo’s cross-fence is located or at the other private lots west of Mr. Quevedo's property. All of the improvements made at Mr. Quevedo’s cross-fence at the C-51 Right-of-Way have been made by him even though the C-51 Right-of- Way is located within Spillway Park. The original public safety rationale for authorizing Mr. Quevedo to erect the cross-fence blocking public access was revisited by the District. Additional investigation by safety experts (Risk Management staff) revealed that no unreasonable danger existed by allowing public access to the C-51 seawall at the C-51 Right-of-Way. In the absence of the public safety basis for closure of the C-51 Right-of-Way, such closure was contrary to District policy. As a consequence, the District’s staff recommended to the District’s Governing Board that the MOD Permit, authorizing Mr. Quevedo’s cross-fence, be revoked. After conducting two public meetings and receiving comments from Mr. Quevedo, members of the public, and the District’s staff as to the policy issue of pubic access to the C- 51 Right-of-Way, the District’s Governing Board determined that the C-51 Right-of-Way should be open to the public. Consequently, the Governing Board decided to revoke Mr. Quevedo's MOD Permit. Allegations of criminal activity within the general boundaries of Spillway Park and, specifically, in the C-51 Right- of-Way at the cross-fence area, were made by Mr. Quevedo as a basis to not revoke the MOD Permit and allow the cross-fence to remain. Such allegations have no bearing on the revocation of the MOD Permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order revoking SFWMD Permit No. MOD 981 issued to Jesus G. Quevedo. DONE AND ENTERED this 8th day of March, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1999.
