Findings Of Fact In December, 1993, Suwannee Farms, through one of its partners, Robert Wight, applied to the Department of Environmental Protection for a wastewater treatment facility permit to be constructed on part of its property in Suwannee County, Florida. The Department of Environmental Protection requested clarification or amendment of the initial application. Suwannee Farms amended its initial application and the Department determined that the applicant had provided reasonable assurances of compliance with Florida Statutes and the Department's rules and regulations. The permittee listed on the initial application is Robert Wight. Suwannee Farms is a partnership consisting of Robert Wight and Joseph Hall. The permit is to be issued in the name of Suwannee Farms. Issuance in the name of the partnership is within the scope of the Department of Environmental Protection's authority. On January 25, 1994, the Department issued its Intent to Issue the permit. The intent to issue provided in part: Pursuant to Section 403.815, F.S. and DER Rule 17-103-150, Florida Administrative Code, you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The Notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a news- paper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the activity is to take place. Where there is more than one newspaper of general circulation in the county, the newspaper used must be one with significant circulation in the area that may be affected by the permit. If you are uncertain that a newspaper meets these require- ments, please contact the Department at the address or telephone number listed below. The applicant shall provide proof of publication to the Department, at Northeast District Office, 7825 Baymeadows Way, Suite B-200, Jacksonville, Florida 32256-7577, within seven (7) days of the publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. The Notice Of Intent to Issue was published in the Gainesville Sun on February 5, 1994. Proof of publication was timely filed with the Department. The Gainesville Sun is a daily newspaper printed in Alachua County, Florida. The paper is available for purchase by the general public in Suwannee County, Florida and is sold to the general public at newspaper racks. Additionally, the Sun is available to residents of Suwannee County, including the area of the proposed project, through subscription and delivery via newspaper carrier "tubes." The Gainesville Sun is the only newspaper of general circulation delivered on a daily basis to homes in the area affected by the proposed permit. The Gainesville Sun contains national, state and local news stories, including local events in Suwannee County. Additionally, the Sun contains a legal ad section. The information in the Sun is of a public character and of interest and value to the residents of Suwannee County.dd The Sun has been published for more than a year in both Alachua and Suwannee Counties. At least twenty-five percent of the words in the Sun are in the English language and is entered as second class mail at the post office. There is no question that the Gainesville Sun meets the legal requirements of the Department for publication of Notices of Intent to Issue Permits in Suwannee County. Therefore, publication of the Intent to Issue Permit for the proposed wastewater facility involved in this case was appropriate. Through discovery and after an order compelling such answers, the Petitioner listed her objections to the issuance of the permit generally as noncompliance with nitrate level regulations, noncompliance with fencing regulations, noncompliance with set-back regulations and noncompliance with excessive noise and odor regulations. The evidence at the hearing demonstrated that the proposed wastewater treatment facility and land application meet the requirements of Florida Statutes and the Department's rules in the areas specified by the Petitioner as well as other areas of the statutes and rules. Suffice it to say that Petitioner offered no evidence which even remotely demonstrated that the Suwannee Farms permit did not meet these requirements or in some way failed to reasonably assure the Department that the requirements for a wastewater treatment permit with rapid rate land application would be met. Indeed, the only evidence in this case demonstrated that the technology proposed for the wastewater plant and rapid rate land application has been in use for a long time and has historically either met or exceeded the Department's requirements for nitrates (not to exceed 12 milligrams per liter), noise, odor and fecal coliform. There was no evidence submitted that would cause one to conclude that the technology for this facility would not perform as it has in the past at other locations. The plans of the facility clearly show adequate fencing and that the percolation ponds will be set-back at least 500 feet from any wells and at least 100 feet from any property line. Both fencing and pond location meet the requirements of Florida Statutes and Departmental rule. Given these facts, Petitioner has shown its entitlement to a construction permit for its proposed project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order granting the application of Suwannee Farms for a wastewater treatment facility and rapid land application permit. DONE and ENTERED this 4th day of May, 1995, in Tallahassee, Florida. DIANE CLEAVINGER 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 May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2800 1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Stephen C. Bullock P. O. Box 447 Jacksonville, FL 32201 Thomas I. Mayton, Jr. Assistant General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Frederick L. Koberlein P. O. Drawer 2349 Lake City, FL 32056-2349 Virginia B. Wetherell, Secretary D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Kenneth Plante General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400
The Issue The issue in this proceeding is whether four agency memoranda describing policy on mitigation for dredge and fill projects are unpromulgated rules and were relied on by the agency in violation of Section 120.535(1), F.S. During the hearing, and afterwards in writing, Petitioner sought leave to amend its pleadings to incorporate other policies allegedly relied on by the agency in the process of the dredge and fill application review. That request was denied in an order entered on August 23, 1993. Those policies are addressed in the recommended order in DOAH #93-3367.
Findings Of Fact Petitioner, SIP Properties Limited Partnership (SIP) is the record owner of the parcel at issue, approximately thirty-five (35) acres located in the southwest area of Orlando, Orange County, Florida. SIP proposes to prepare the site for commercial and office use by developing the site into separate parcels or lots with proposed uses such as restaurant or fast food establishments, offices and retail stores. Development of the site requires the construction of compensating storage ponds that will act as retention/detention ponds and filling the site. The proposed improvements will result in the filling of 7.47 acres and dredging of 0.42 acres of wetlands claimed to be jurisdictional by DEP. Based on statements made to SIP by staff regarding department "mitigation policies" applicable to SIP's dredge and fill permit application, SIP believed that department policy memoranda were applied during permit review. SIP attached these various memoranda regarding mitigation to its Petition for Administrative Determination of Violation of Rulemaking Requirement dated May 27, 1993, and identified these memoranda as nonrule policies utilized by the department. The department retains on file and makes available for use by its staff the identified memoranda. However, in this case the department did not rely on or apply the mitigation guidelines contained in the memoranda in SIP's Petition. Instead, it applied Part III of Chapter 17-3120, F.A.C. In Part III of Chapter 17-312, F.A.C., the agency has adopted rules addressing the mitigation issues contained in the memoranda in SIP's Petition. For example, the agency has adopted guidelines in rule 17-312.340(2), F.A.C., for applying ratios when mitigation involves creation of state waters, as in this case. The department presently relies on these rules when reviewing mitigation plans, and does not rely on the policy memos referenced in the petition. Determining the mitigation needed to successfully offset impacts from a project is difficult and depends on many factors, including hydrology, soils, planting methods, and monitoring plans. Determining what is needed to reasonably assure successful mitigation must be done on a case by case basis. Not enough is known about the subject to apply any particular set of directions and expect success. DEP is presently in the process of developing rules to further address most aspects of mitigation.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection issue its Final Order granting SIP's dredge and fill permit #48-2086169, with the mitigation proposed by the applicant, and establishing an expiration date and monitoring and evaluation plan for determining success of the mitigation as provided in rules 17-312.320 and 17-312.350, F.A.C. DONE AND RECOMMENDED this 11th day of January, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 11th day of January, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings 1.-3. Adopted in paragraph 2. 4.-6. Adopted in paragraph 7. 7.-8. Rejected as unnecessary. 9. Adopted in paragraph 8. 10.-11. Adopted in substance in paragraph 9. 12. Adopted in substance in paragraph 10. 13.-16. Rejected as unnecessary Adopted in paragraphs 11 and 12. Rejected as unnecessary. 19.-21. Adopted in substance in paragraph 13. 22.-23. Adopted in substance in paragraph 14. 24.-25. Adopted in paragraph 15. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. Adopted in paragraph 16. Substantially rejected as contrary to the greater weight of evidence. Adopted in part in paragraph 17, otherwise rejected as immaterial. Rejected as immaterial. Adopted in paragraph 18. Rejected as immaterial. The agency witnesses established that the vegetation along the canal evidences the physical connection and there is evidence that water flows from the site into the canal. Rejected as unsubstantiated by reliable competent evidence. Adopted in substance in paragraph 22. 36.-40. Rejected as unsupported by reliable competent evidence. Rejected as immaterial. Rejected as unsupported by the weight of evidence. Rejected as unnecessary, and as to characterization of merely "relic" wetlands, unsupported by the weight of evidence. Rejected (the conclusion of jurisdictional limit) as unsupported by the greater weight of evidence. 45.-53. Rejected as immaterial or unnecessary. 54.-56. Adopted in paragraphs 33 and 34. 57. Adopted, as to the limited function, in paragraphs 22 and 23. 58. Adopted in paragraph 26. 59.-60. Adopted in paragraph 23. 61. Rejected, as to the absolute conclusion of "no function", as contrary to the greater weight of evidence. 62. Adopted in paragraph 25. 63.-64. Adopted in paragraph 26. Rejected as unnecessary. Adopted in paragraph 30. Adopted in paragraph 34. Adopted in substance in paragraph 31. Adopted in substance in paragraphs 30 and 34. Adopted in paragraph 31. 71.-73. Adopted in paragraph 33. 74.-77. Rejected as unnecessary. 78.-79. Adopted in paragraph 31. 80.-81. Adopted in paragraph 35. Rejected as unnecessary. Adopted in paragraph 33. 84.-90. Rejected as unnecessary. Respondent's Proposed Findings Adopted in paragraph 15. 2.-3. Adopted in paragraph 16. 4.-5. Adopted in paragraph 17. Adopted in paragraph 15. Adopted in paragraph 17. Adopted in paragraph 16. Rejected as unnecessary and as to "binding" effect, unsupported by the weight of evidence. Adopted in paragraph 19. 11.-15. Adopted in substance in paragraph 21. 16. Rejected as contrary to the weight of evidence and inconsistent with proposed findings #18 with regard to the constant level in the canal. 17.-18. Adopted in substance in paragraphs 21 and 23. 19.-21. Adopted in paragraphs 19 and 20. 22.-26. Adopted in summary in paragraph 21. Adopted in paragraph 27. Adopted in substance in paragraphs 1 and 2. Adopted in paragraph 2. Adopted in part in paragraph 16. That the forests are "healthy and viable" is rejected as unsupported by the weight of evidence. Adopted in substance in paragraph 17. Adopted in part in paragraph 25; otherwise rejected as contrary to the weight of evidence. 33.-34. Adopted in part in paragraph 27; otherwise rejected as contrary to the weight of evidence. 35.-37. Rejected as contrary to the weight of evidence. 38.-43. Rejected as unnecessary. 44. Rejected as contrary to the weight of evidence. The stormwater management plan and mitigation will restore the stormwater treatment functions. 45.-47. Adopted in substance in paragraph 30. Rejected as substantially contrary to the greater weight of evidence (as to the negative impact). Adopted in part, as to water quality problems generally, but rejected as to the ultimate conclusion, as contrary to the greater weight of evidence. Rejected as unnecessary. 51.-52. Adopted in summary in paragraph 31. 53.-54. Rejected as cumulative and unnecessary. 55. Rejected as contrary to the greater weight of evidence. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ronald M. Schirtzer, Esquire Martha H. Formella, Esquire R. Duke Woodson, Esquire FOLEY & LARDNER 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 Douglas H. MacLaughlin, Esquire John L. Chaves, Esquire Rosanne G. Capeless, Certified Legal Intern Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether or not the Petitioners, Guy T. Selander and Henry W. Harris, should be granted an "after the fact" construction permit in accordance with Section 253.124(7)(a), F.S., for the retaining wall which has been constructed on or near their property located on Beauclerc Point, Duval County, Florida.
Findings Of Fact This cause came on to be heard upon the Petitioners' request for an "after the fact" construction permit for a retaining wall which had been built on or near their property. The specific property spoken of is two lots located on Beauclerc Point, Duval County, Florida. These lots are shown as numbers 21 and 22 found on Petitioners' Exhibit No. 15, admitted into evidence. This is a replat based upon a survey of November 28, 1923. The exhibit shows the retaining wall superimposed on the survey. A more specific showing of the placement of the retaining wall on lots 21 and 22 may be found in Petitioners' Exhibit No. 16, admitted into evidence. Petitioner, Guy T. Selander is the owner of lot number 21, which lot contains his residence. Henry W. Harris is the owner of lot No. 22 and there are no permanent buildings located on that lot. Dr. Selander built a home on lot No. 21 in the years 1974 through 1975. Prior to building the home he was of the opinion that he needed to protect the front of the lot which faces the St. Johns River. Dr. Harris was also interested in protecting his lot. Between them it was determined that they would build a retaining wall to protect their lots. The two lots are located on a bluff which drops approximately 20 to 25 feet down to the level of the river. The St. Johns River is a navigable river. Prior to commencing the construction of the retaining wall, the Petitioners, upon the suggestion of a friend of Dr. Selanders, applied to the City of Jacksonville, Duval County, Florida for a building permit. The application for permit was made on January 19, 1973. The Petitioners were granted a permit on January 19, 1973, entitled "miscellaneous permit", No. 495. A copy of the permit is a part of Petitioners' Exhibit No. 1, admitted into evidence. The Petitioners at that time did not seek further approval of the construction of their retaining wall, by the state authorities or the United States Corp of Engineers. In constructing the retaining wall the Petitioners contemplated the use of fill, some of which was to be placed in the river proper. Some fill was placed in the river at this point in time which constituted an obstruction or alteration of the natural flow of the St. Johns River. The apex of the retaining wall and the southwest section of the retaining wall, was constructed waterward of the existing bulkhead line found on the neighboring property located to the north and south of the subject two lots. The apex of the retaining wall, as can be seen in Petitioners' Exhibit No. 15, lies at the approximate center of the two lots. At the time the permit was requested of the City of Jacksonville and the retaining wall was constructed, which construction was between January, 1973 and September, 1973, Section 253.124(1)(2), F.S., required that the permit application be approved by the Board of Trustees of the Internal Improvement Trust Fund, prior to any construction. As indicated, this approval was not received prior to commencing construction and in September, 1973, officials of the State of Florida and the U.S. Corp of Engineers came to the property and discovered that the wall was being constructed. At this point in the construction, the bottom of the river where the retaining wall was being placed had been smoothed out and sand bags filled and laminated, such that the wall was in place. Then "riprap", broken concrete, was being placed landward of the retaining wall. The officials of the two governmental bodies told the Petitioner Selander that he would need approval of the Board of Trustees of the Internal Improvement Trust Fund and of the U.S. Corp of Engineers to construct that wall. Prior to undertaking the project of constructing the retaining wall, the land along the toe of the bluff had been dry land, but as established before, some fill had been placed in the river, with the majority of that fill being placed at the southern most point of the two lots. This location is further described as being the point where the retaining wall makes an approximate right angle and comes back to the southern boundary line of lot No. 22. The retaining wall and the Selander residence may be seen in Petitioners' Photographic Exhibits No. 9 and 11, admitted into evidence. The condition of the shoreline on lots No. 21 and No. 22 prior to the construction of the retaining wall and placement of the fill may be seen in Petitioners' Photographic Exhibit No. 8, admitted into evidence. This photograph was taken somewhere in the time period of 1970 through 1971, and shows water of the St. Johns River at a place on the lot fronts that was later filled in. The photograph, Petitioners Exhibit No. 8, also shows that the retaining wall had been constructed waterward of the mean high waterline. Subsequent to the conversation with the state and federal officials, the Petitioners filed a request for an "after the fact" permit. This permit request was filed on November 1, 1973 and is found as Petitioners' Exhibit No. 1, admitted into evidence. The Petitioners stopped working on the project and did not recommence until after receiving the recommended approval of the City of Jacksonville, which is found in Petitioners' Exhibit No. 2, admitted into evidence, an August 16, 1974, letter from the Director of Public Works of the City of Jacksonville. This permit letter is conditioned upon the approval of the Trustees of the Internal Improvement Trust Fund and of the U.S. Army Corp of Engineers. From that point there were various requests made by the agencies of the state, which were complied with by the Petitioners. Additional work was done on the retaining wall based on receipt of a copy of a letter from Robert W. Hall, Administrator of the Dredge and Fill section of the State of Florida, Department of Pollution Control. This letter is Petitioners' Exhibit No. 6, admitted into evidence and is dated October 31, 1974. The letter indicates the recommended approval of the Department of Pollution Control of the project conditioned upon the installation of "riprap" material waterward of the retaining wall, and pending the Trustees' approval. The principal questions being addressed by the agencies were: Whether or not it would be more detrimental to the marine biological resources to remove the construction and fill. If the answer to the first question was yes, then what was the nature of the erosion of the bluff line, was it slow and imperceptible or was it avulsion or artificially induced. During the course of the investigation of the application for permit, review of the project was made by the Department of Natural Resources. In addition, a field inspector with the Board of Trustees of the Internal Improvement Trust Fund, Jeremy Tyler, went to the project and examined the retaining wall and surrounding area on November 18, 1974. His inspection revealed that the water on the property located south of the Petitioners' property touched the bluff of the bank at high tide. The water on the property south of the Petitioners' property was lapping against the bulkhead at the base of the bluff. The witness noted that the point of the bluff in that general area was located on the Harris and Selander property. According to this witness's observation, the mean high waterline on November 18, 1974 would have been an approximate diagonal line going from the adjacent north bulkhead line to the adjacent south bulkhead line. On November 3, 1975, Jerome Kelly, a subdistrict biologist for the State of Florida, made an inspection of the property. He felt that the only adverse effect on the biological resources that would occur with the removal of the retaining wall would be removal of a stand of typha, also known as cattails, which was waterward of the north end of the retaining wall. A memorandum of his observations is found as Respondent's Exhibit No. 5, admitted into evidence. The Petitioners employed Dr. Joe A. Edmisten, an ecological consultant. The results of the examination of the property, which was made by Dr. Edmisten may be found as Petitioners' Composite Exhibit No. 17, admitted into evidence. Dr. Edmisten and his assistant took soil samples and cores in the general area and examined various aquatic and wetland plants in the area of the project. It was concluded by Dr. Edmisten that soil had washed from the bluff line before and this erosion was prohibiting the health of certain of these plants. Additionally, Dr. Edmisten felt that the retaining wall was assisting in the development of these plants and the development of periphyton and sessile animals. He felt that the removal of the retaining wall would cause the destruction of the aquatic plants, terrestial plants and animals, and aquatic animals and the substrate. The report does not speak to the issue of the long term effects of removing the retaining wall landward of its present placement and landward of the mean high waterline; however, his testimony at the hearing seemed to suggest that a properly constructed retaining wall in such a location would not be inappropriate. This is in keeping with the testimony of Jerome Kelly who didn't feel that removing the wall and placing it in a location landward of the mean high waterline would damage the ecological system. Additionally, it can be seen that if the wall was moved landward of its present location there would be a greater volume of water for marine life to exist in. The second consideration that was addressed in the discussion of the "after the fact" permit was the question of whether the erosion of the property found in the lots of the Petitioners had transpired through imperceptible erosion or by specific avulsion or artificially induced erosion. Testimony was offered by Petitioner Harris, which appears as a deposition in lieu of in hearing testimony. Affidavits were also submitted to the Respondent by persons living in the vicinity of the Petitioners' property. These affidavits may be found as part of the Edmisten report which is Petitioners' Exhibit No. 17, admitted into evidence. The Petitioners tried to demonstrate that the loss of land was caused by avulsion due to hurricane Dora which occurred in 1964 and through various northeastern storms. It is clear that the property line has receded since the replat of 1923 shown in Petitioner's Exhibit No. 15, admitted into evidence. It is unclear however, whether this erosion was caused by avulsion, imperceptible erosion or artificially induced erosion. Therefore, the Petitioners have failed to demonstrate their entitlement to reclaim land beyond the mean high waterline. Based upon an examination of the facts it has been demonstrated that it would not be more damaging to the environment or the marine resources protected by Chapter 253, F.S., to cause the removal of the fill which has been placed waterward of the mean high waterline, as opposed to granting an "after the fact" permit.
Recommendation It is recommended that the "after the fact" construction permit sought by the Petitioners under authority of Section 253.124(7)(a) F.S., be denied. DONE AND ORDERED this 24th day of June, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Almer W. Beale, II, Esquire South 1014, Barnett Bank Building Jacksonville, Florida 32202 Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Tallahassee, Florida 32301
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File following the Notice of Voluntary Dismissal filed by the Petitioner. A copy of the Order is attached as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(c) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA10-GM-056 CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below in the manner described, on this 23-4 day of March, 2010. U.S. Mail: The Honorable D.R. Alexander Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Melvin Wolfe, Esq. Town of Medley 7777 N.W. 72nd Avenue Medley, Florida 33166 Jeffrey S. Bass, Esq. Shubin & Bass, P.A. 46 S.W. First Street, 3rd Floor Miami, Florida 33131 Hand Delivery: Richard Shine, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399 Paula Ford Agency Clerk Douglas M. Halsey, Esq. White & Case, LLP Wachovia Financial Center 200 South Biscayne Boulevard, Suite 4900 Miami, Florida 33131 Barbara J. Riesberg, Esq. 1000 Brickell Avenue, Suite 200 Miami, Florida 33131
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the state land planning agency with the power and duty to exercise general supervision over the administration and enforcement of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules and regulations promulgated thereunder. See, Section 380.031(18), Florida Statutes. The City of Key West is in the Florida Keys Area of Critical State Concern. See, Section 380.0552(3), Florida Statutes and Rule 27F-8, Florida Administrative Code. Since the City is in the Florida Key's Area of Critical State Concern, City ordinances regulating land development do not take effect until DCA approves them "by rule." See, Section 380.0552(9), Florida Statutes. See also, Section 380.05(6), Florida Statutes (which provides that no proposed land development regulation in an Area of Critical State Concern shall become effective until DCA has adopted a rule approving such regulation.) In pertinent part, Section 380.0552, Florida Statutes provides: 380.0552 Florida Keys Area; protection and designation as area of critical state concern.-- PRINCIPLES FOR GUIDING DEVELOPMENT.--State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which chapter is hereby adopted and incorporated herein by reference. For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. However, the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, are repealed 18 months from July 1, 1986. After repeal, the following shall be the principles with which any plan amendments must be consistent: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shorelines and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or man-made disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. * * * MODIFICATION TO PLANS AND REGULATIONS.--Any land development regulation or element of a local comprehensive plan in the Florida Keys Area may be enacted, amended, or rescinded by a local government, but the enactment, amendment or rescission shall become effective only upon the approval thereof by the state land planning agency. The state land planning agency shall review the proposed change to determine if it is in compliance with the principles for guiding development set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, and shall either approve or reject the requested changes within 60 days of receipt thereof. Further, the state land planning agency, after consulting with the appropriate local government, may, no more often than once a year, recommend to the Administration Commission the enactment, amendment, or rescission of a land development regulation or element of a local comprehensive plan. Within 45 days following the receipt of such recommendation by the state land planning agency, the commission shall reject the recommendation, or accept it with or without modification and adopt it, by rule, including any changes. Any such local development regulation or plan shall be in compliance with the principles for guiding development. (Emphasis supplied.) In sum, any land development regulations adopted by the City must be submitted to DCA for approval or rejection pursuant to Section 380.0552(9). Such regulations become effective when approved by DCA. In evaluating an Ordinance submitted pursuant to Section 380.0552(9), DCA will look to the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. DCA is directed to approve a proposed ordinance if it is in compliance with the Principles for Guiding Development; conversely, DCA is without authority to approve a proposed amendment which is not in compliance with the Principles for Guiding Development. On September 3, 1991, the City adopted Ordinance 91-25 (the "Ordinance") which provides for a 180 day moratorium on certain development activities in the City. The Ordinance prohibits ...the approval of Community Impact Assessment Statements and site plans for projects falling within the scope of the city's CIAS ordinance, where the proposed density or intensity of use is inconsistent with the permitted density or intensity under the future land use map of the city's pending comprehensive plan or the property is situated in an area designated as coastal high hazard or wetlands on the Future Land Use Map of the City's pending comprehensive land use plan... A building moratorium, such as that set forth in the Ordinance, constitutes a land development regulation as defined in Section 380.031(8), and Rule 28-20.19(4), Florida Administrative Code. Therefore, the moratorium could not take effect until approved by DCA by rule. A Community Impact Assessment Statement ("CIAS"), as defined in Section 34.04, Key West Code, describes expected impacts of proposed development on specified City resources and infrastructure. While a CIAS is not a development order, the City requires a CIAS as a precondition to the granting of a building permit for most large projects in the City. A developer is required to submit a CIAS for a proposed residential or hotel/motel development of ten or more habitable units or a proposed commercial development of 10,000 square feet or more. A CIAS is intended to ensure that the impacts a proposed project will have upon public facilities and the social and economic resources of the community are considered in the planning process and to avoid surprises during the planning process. The City will reject a CIAS that it finds to be incomplete or misleading. The City Commission held its first hearing on the Ordinance on June 18, 1991. At least five public hearings before the City Commission were held prior to the City's adoption of the Ordinance. The 1981 City of Key West Comprehensive Plan (the "Existing Comprehensive Plan") sets forth certain parameters and standards for the issuance of development orders. The Existing Comprehensive Plan has been approved by the Administration Commission in Chapter 28-37, Florida Administrative Code. The City of Key West land development regulations and certain amendments to the Existing Comprehensive Plan have been approved by DCA in Chapter 9J-22, Florida Administrative Code. The City is required by the States's growth management statute, Part II of Chapter 163, Florida Statutes, to submit to DCA a new comprehensive plan. Since the City is in an Area of Critical State Concern, the new comprehensive plan will not take effect until it is approved by DCA by rule. The Existing Comprehensive Plan remains in effect until a new plan is adopted. At the time the Ordinance was adopted, the City was in the process of preparing a new comprehensive plan to guide future development. By adopting the moratorium, the City sought to provide itself with an opportunity to effectively implement a new comprehensive plan. The City submitted a proposed new comprehensive plan (the "Pending Comprehensive Plan") to DCA on December 2, 1991. DCA and the City are currently involved in negotiations over whether the Pending Comprehensive Plan is in compliance with the state's growth management law, Chapter 163, Florida Statutes, and the rules promulgated thereunder, Rule 9J-5, Florida Administrative Code. The Pending Comprehensive Plan was still in the draft stages at the time the Ordinance was adopted. As indicated above, the City adopted the moratorium for projects requiring a CIAS in an effort to ensure that the City would be able to effectively implement a new comprehensive plan. The City is faced with numerous development-related problems which it attempts to address in the Pending Comprehensive Plan. These problems include: Water Quality Water Resources - The City draws all of its water from the Biscayne Aquifer. The water is pumped from wellfields on the mainland in Dade County and is transported through a single pipe to Monroe County to provide water to the Florida Keys population. While there is no immediate problem with the availability of water for the City, the Florida Keys Aqueduct Authority and the South Florida Water Management District (SFWMD) are in the process of preparing a water supply plan for Dade County and the Keys. These agencies recently informed all Monroe County local governments that they are approaching the limit of water that can be supplied from the aquifer and it is expected that there will be limitations on any further increases in consumption and/or consumptive use permits. The City and DCA contend that the moratorium will help the City to effectively analyze and address these issues in its new comprehensive plan. Chapter 4 of the Pending Comprehensive Plan would require the City to develop a plan for potable water resources, including replacement of the aging water main, providing for emergency supplies, and emphasizing the need to conserve water. Sewer System - Sewage treatment in the City of Key West is a serious problem. The treated effluent is currently dumped into the Atlantic Ocean and has been implicated in the degradation of the environmentally sensitive and unique coral reefs. Chapter 4 of the Pending Comprehensive Plan would direct the City to substantially improve its wastewater treatment level of service, prevent system infiltration, fix leaky pipes, and reduce the pollution of the surrounding waters. Stormwater Runoff - The waters surrounding the island of Key West have been designated Outstanding Florida Waters, pursuant to Chapter 403, Florida Statutes. The runoff generated by rains in the City is currently channeled into these waters either directly or via canals. The Existing Comprehensive Plan does not contain extensive guidance regarding stormwater runoff. Chapter 4 of the Pending Comprehensive Plan would direct the City to conduct a half million dollar study over the next two years to examine, develop, and implement a stormwater management plan. Section 4-2.1(d) of the Pending Comprehensive Plan would also require improved levels of service for stormwater runoff. Hurricane Evacuation - The evacuation of people out of the Florida Keys during a hurricane is an important element in the planning process for the City. The Existing Comprehensive Plan does not provide any standards for hurricane evacuation. Chapter 2 of the Pending Comprehensive Plan requires the City of Key West to develop a feasible hurricane evacuation plan and coordinate its implementation with the County. The City has taken no action on this directive to date. A model is being developed within the Monroe County Comprehensive Plan for the safe evacuation of residents from the Florida Keys. The model will include updated information based upon the Pending Comprehensive Plan. The inclusion of new development into the model is complicated. By temporarily limiting new development, the City can provide more certainty to this planning process. Wetlands and Environmental Protection - The Pending Comprehensive Plan seeks to strengthen and clarify the Existing Comprehensive Plan provisions regarding wetlands and habitat protection by reducing densities within wetlands, salt ponds, and coastal high hazard areas and requiring the adoption of amended land development regulations which extensively improve the City's environmental protection requirements. Residential Housing and Conversion to Transient Units - There have been a significant number of conversions from residential to transient units (hotels, motels, and other tourist accommodations) in the City during the last several years. The increase in "transient" persons exacerbates the strain upon public facilities, especially transportation facilities. The Existing Comprehensive Plan offers little protection to residential areas from commercial and transient intrusion. The Future Land Use Element of the Pending Comprehensive Plan attempts to guide and plan the locations of conversions. Transportation - Many roads in the City are currently operating at poor levels of service, including U.S. Highway 1, the main arterial roadway in the City. The City has never had a specific plan to improve the levels of service. The City is required under the growth management statute (Chapter 163) to provide adequate levels of service on the roads within the City. Chapter 2 of the Pending Comprehensive Plan proposes to implement an extensive traffic circulation system over the next twenty years which will include roadway improvements, revised levels of service, and nonmotorized transportation provisions. Solid Waste - Currently, the City's solid waste is disposed at a local landfill. The City's solid waste disposal facility is currently operating under a year old consent order that directs the facility to be closed within three years. The Existing Comprehensive Plan states that the City is to provide adequate public facilities, but does not explain what constitutes "adequate". The Existing Comprehensive Plan does not provide a plan for the impending closure. The Pending Comprehensive Plan would require the City to provide the funding for solid waste disposal improvements. The clear goal of the Ordinance was to delay the approval of certain CIAS applications, site plans and building permits for 180 days while work continued on the Pending Comprehensive Plan. The City contends that the moratorium will help it to effectively implement the policies which it anticipates will be incorporated in the new comprehensive plan when it is finally in place. The Ordinance provided that the 180 day moratorium would begin on the effective date of the administrative rule approving the Ordinance. The City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the Ordinance. Normal rulemaking pursuant to Section 120.54, Florida Statutes, generally takes between 90 to 120 days. Many local governments experience a significant increase in development proposals immediately prior to the adoption of a new comprehensive plan. Many of these proposals are prompted by a fear as to the impact of the new plan and seek to acquire vested rights under the old plan. The City and DCA were concerned that such an increase in development proposals might complicate the planning process by rendering some aspects or assumptions of a new plan moot before the plan could even be adopted. Moratoria are frequently used by local governments in order to complete an effective comprehensive plan without the need for changes. In the year immediately proceeding the adoption of the Pending Comprehensive Plan by the City Commission (from September 1990 through September 1991), the City received seven CIAS applications. No CIAS applications had been received during the year prior. The City contends that many of the 1990/1991 applications were motivated by an attempt to obtain vested development rights. However, no persuasive evidence to support this speculation was presented. The City Commmission did not consider any reports, studies or other data in connection with the enactment of the Ordinance. At the time the Ordinance was adopted, the City Commission did not make any specific determinations that there were any immediate dangers to the public health, safety or welfare of the community nor was the Ordinance enacted as an emergency ordinance. After its adoption by the City Commission, the Ordinance was transmitted to DCA on September 5, 1991 for approval pursuant to Section 380.0552(9), Florida Statutes. The only information transmitted to DCA was a copy of the Ordinance. As indicated above, the City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the City's Ordinance. The City Planner contacted DCA to request approval of the Ordinance by emergency rule. The City Planner and DCA concurred in the conclusion that the purpose of the Ordinance would be defeated if it was not immediately implemented. The City Commission did not specifically ask or authorize the City Planner to request DCA to enact the Ordinance by emergency rule. The City's concerns included, among other things, that the conversions of residential properties to transient tourist accommodations would accelerate during the process of finalizing the Pending Comprehensive Plan. In addition, the City expects that its new comprehensive plan will reexamine the densities in coastal high hazard areas. By adopting a moratorium, the City sought to insure that any new developments will comply with the new densities ultimately adopted. On September 18, 1991, DCA filed the rule packet for the Emergency Rule with the Secretary of State and the Emergency Rule became effective on that date. DCA did not prepare an economic impact statement for the Emergency Rule. The rule packet consisted of: (a) a Certification Of Emergency Rule; (b) the Notice Of Emergency Rule; (c) a Statement Of The Specific Facts And Reasons For Finding An Immediate Danger To The Public Health, Safety And Welfare, (the "Statement of Specific Reasons") and (d) a Statement of the Agency's Reasons for Concluding that the Procedure Used Is Fair under the Circumstances (the "Agency Conclusions"). The Notice of Emergency Rule appeared in the September 27, 1991 edition of the Florida Administrative Weekly. In the Statement of Specific Reasons, DCA concluded that: ...Generally, a [comprehensive] plan revision process stimulates an accelerated rate of permit requests. Accelerated permitting including the acquisition of vested rights during a planning period will severly erode the City's ability to effectively revise and implement the comprehensive plan. Such accelerated development will also lead to further deterioration of current hurricane evacuation clearance time for the City. This action will increase the existing potential for loss of life and injury to person [sic] and property, will cause further deterioration of level [sic] of service on existing roadways and will lead to irreversible environmental degradation. Therefore this rule must be adopted by emergency procedures because of the potential immediate danger to the public health, safety and welfare. In the Agency Conclusions, DCA concluded: The emergency rulemaking is fair because (1) it immediately approves the ordinance as adopted by the City of Key West Commission and (2) normal rulemaking would moot the intent of the adopted ordinance since the City of Key West would be required to continue accepting applications for building permits, site plans, of [CIAS's] covering work projects or both, as set forth in Section 2 of ordinance 91-25 until the Department's rule approving the ordinance becomes effective. DCA's Statement of Specific Reasons was not reviewed or discussed with the City or its planner prior to its preparation. In deciding to promulgate the Emergency Rule, DCA considered the major public facilities and natural resource problems confronting the City and the City's proposed strategy to deal with these problems in the Pending Comprehensive Plan. DCA concluded that an immediate danger to the public health, safety, and welfare currently exists within the City justifying the approval of the Ordinance by emergency rule. The evidence clearly indicates that the City is facing many significant problems from a planning perspective. Petitioner contends, however, that there is no evidence that any of those problems present an "immediate" threat to the public health, safety or welfare. For the reasons set forth in the Conclusions of Law below, this contention is rejected. On October 10, 1991, DCA filed a rule packet for the Proposed Rule with the Secretary of State. The rule packet consisted of the Notice Of Proposed Rule 9J-22.013, the Estimate of Economic Impact on All Affected Persons (the "EIS",) a Statement of the Facts and Circumstances Justifying Proposed Rule 9J-22.013 (the "Statement of Facts"), a summary of the Proposed Rule, a Comparison with Federal Standards, a Statement of Impact on Small Business and the text of the Proposed Rule. The Notice of Proposed Rule 9J-22.013 appeared in the October 18, 1991 edition of the Florida Administrative Weekly. On October 24, 1991, DCA filed a Notice of Change with the Secretary of State, stating that the correct number for the Proposed Rule was 9J-22.014, since 9J-22.013 had already been used. The Notice of Change appeared in the November 1, 1991 edition of the Florida Administrative Weekly. DCA did not consider any appraisals, data, reports or other studies concerning the economic impact that could result from the imposition of a moratorium. Instead, DCA followed the approach it had used in approving prior ordinances enacted by the City and concluded that its role in reviewing the Ordinance for compliance with the Priniciples Guiding Development did not require an examination of the economic impact of the underlying policy decisions reached by the City Commission in adopting the Ordinance. The EIS states that: Costs and benefits will occur as a result of this ordinance and were considered by the City prior to adoption of the ordinance. The City did not provide any information to DCA on the economic impacts of the Ordinance or on the impact of the Ordinance on the value of properties affected by it. The evidence was unclear as to the extent to which the City Commission considered economic impacts in deciding to adopt the Ordinance. Several public hearings were held in connection with the adoption of the Ordinance and DCA assumed that interested parties had an opportunity to express their concerns regarding the economic impact of the Ordinance at these hearings. DCA did not inquire as to the number of projects under review by the City at the time the Ordinance was passed nor did it seek a determination as to whether any projects with vested rights were affected by the Ordinance. The City Planning Department has retained a consultant, as required by the Ordinance, to conduct an economic study of existing conditions and projections for future growth. The purpose of this study is to assist in developing future amendments to the Ordinance. The study is not final and was not considered by the Key West City Commission when the Ordinance was enacted. DCA concluded that the proposed moratorium adopted by the Key West City Commission was consistent with the Principles for Guiding Development. Therefore, DCA concluded that Section 380.0552 required it to approve the Ordinance. Petitioner has not presented any persuasive evidence to establish that the Ordinance is in any way inconsistent with the Principles for Guiding Development. Petitioner owns 6.8 acres of vacant real property on Atlantic Boulevard in the City. He purchased the property in 1974 with the intent to develop it. Petitioner's property is located in an R-2H zoning district. The City's future land use map designates Petitioner's property as multi-family. Petitioner has spent approximately $71,000.00 to hire architects, engineers, surveyors, planners, biologists and attorneys to aid him in preparing to develop the subject property. In 1989, Petitioner submitted applications for a Department of Environmental Regulation Surface Water Management permit, and an Army Corps of Engineers dredge-and-fill permit, but neither of those permits have been issued to date. Generally the City requires a developer to obtain these "higher-order" permits prior to issuing a building permit. Petitioner has never applied for or installed sewer service, water service or any other utility service to the property. Since he acquired the property, Petitioner has not cleared any vegetation on the property except for minor trimming adjacent to the roadway which was required by the City for safety purposes. In June of 1989, the City passed a resolution notifying the Department of Environmental Regulation that it opposed Petitioner's application to place fill upon the property. On April 10, 1991, Petitioner submitted a CIAS to the City for a proposed 96 unit residential development in three buildings on the subject property. Before the Ordinance was enacted, the City Planner prepared a report dated July 3, 1991 reviewing Petitioner's CIAS as required by the CIAS ordinance. In that review, the City Planner concluded: The project is located in the R-2H zoning district and conforms to all provisions of that district, thus requiring no variances or special exceptions. On August 6, 1991, the Key West City Commission considered Petitioner's CIAS. The City Commission refused to approve the Petitioner's CIAS application. Specifically, the City Commission determined that Petitioner's CIAS application was incomplete and that the "submerged land district" designation ("SL") applied to the Petitioner's property as an overlay zoning district because Petitioner's property is located in an area which is deemed to include wetlands and mangroves. The City Commission requested that the CIAS address the "submerged land district" before the CIAS application could be deemed complete. The City Planner was not present at the August 6, 1991 City Commission meeting. The "submerged land district" in Section 35.07(f), City of Key West Code, provides that the density and site alteration of "environmentally sensitive areas including but not limited to wetland communities, mangroves, tropical hardwood hammocks and salt ponds shall be zoned with a maximum density of one (1) unit per acre. Site alteration shall be limited to a maximum of ten percent of the total size." The "submerged land district" overlay zone applies to any parts of the property which fall within the description of "environmentally sensitive areas" in Section 35.07, City of Key West Code. Because there is confusion over the interpretation and applicability of the SL district and because the SL land use district does not appear on the City's official zoning map, it was not considered in the preparation of the July 3 Report. The evidence in this case was inconclusive as to whether Petitioner's property is located in a SL district and/or whether Petitioner's CIAS for his property can be approved under the City regulations in place prior to the adoption of the Ordinance. On August 22, 1991, Petitioner submitted an amendment to the CIAS as well as a Site Plan. The amendment to the CIAS contests the City's conclusion that Petitioner's property should be considered part of a SL district. As set forth above, during this time period, the City had began consideration of the Ordinance. The first hearing on the Ordinance was held on June 18, 1991 and the Ordinance was passed by the City Commission on September 3, 1991. The City Planner notified Petitioner by letter dated October 11, 1991, that his CIAS Site Plan review and approval had been "stayed" because of the enactment of the Ordinance and because of the project's "inconsistencies with the City's Pending Comprehensive Plan." Petitioner requested an exception from the effect of the Ordinance pursuant to the procedure contained in the Ordinance. A hearing was held before the City Commission and the request was denied.
Findings Of Fact Petitioner did not identify a particular part of Rule 62-4.244 that he claims is unconstitutional. Rule 62-4.244 is a lengthy rule and is not set forth here in its entirety. The gist of the rule is explained in subsection (1)(a): The Department may allow the water quality adjacent to a point of discharge to be degraded to the extent that only the minimum conditions described in subsection 62- 302.500(1), F.A.C., apply within a limited, defined region known as the mixing zone. Under the circumstances defined elsewhere in this section, a mixing zone may be allowed to provide an opportunity for mixing and thus to reduce the costs of treatment. However, no mixing zone or combination of mixing zones shall be allowed to significantly impair any of the designated uses of the receiving body of water.
Findings Of Fact The Parties. Petitioner, Darnell Lumpkin, is a black male. Respondent, Occidental Chemical Company (hereinafter referred to as "Occidental") (Occidental is now know as "White Springs Agricultural Chemicals, Inc."), is a corporation engaged in the production of agricultural products in Florida. At all times pertinent to this proceeding, Mr. Lumpkin was employed by Occidental. The April 13, 1994 Incident. On or about April 13, 1994, Mr. Lumpkin and Jesse Carl Law got into an argument. Both men were employed as First Class Maintenance Mechanics and worked on the same crew at that time. Mr. Law is a white man. The argument took place during working hours. The argument began in a lunchroom area on the premises of Occidental. Mr. Lumpkin was sitting at a table eating breakfast when the argument began. Both Mr. Lumpkin and Mr. Law raised their voices and were angry. At some point during the argument, Mr. Law pulled out a knife and threatened Mr. Lumpkin. Another employee, Frank Steward, wrapped his arms around Mr. Law and restrained him. Mr. Lumpkin exited the building in which the argument began. Mr. Lumpkin left the building with the intent of going to his truck to retrieve a hand gun, a 357 magnum, which he kept in his truck. Mr. Lumpkin intended to use the hand gun on Mr. Law. As Mr. Lumpkin left, the argument continued into a shop area just outside the lunchroom. On the way to his truck Mr. Lumpkin spoke with another employee, Tom Kelling. Mr. Lumpkin told Mr. Keating what had happened. Mr. Kelling and Mr. Steward tried to get Mr. Lumpkin to calm down and not do anything. Mr. Lumpkin eventually calmed down and decided against going to his truck to get his hand gun. Occidental's Investigation of the April 13, 1994 Incident. Mr. Lumpkin's immediate supervisor, James McClellan, learned of the April 13, 1994, incident on Friday, April 15, 1994. Mr. McClellan spoke to Mr. Lumpkin on April 15, 1994 about the incident. Mr. Lumpkin reported, among other things, that Mr. Law had pulled a knife on him. Mr. Lumpkin also admitted that he had headed to his truck to retrieve his hand gun and that he intended to use it. The incident was immediately reported to the personnel office and the supervisor of security, Dale Parrish. An investigation into the incident was immediately begun. Mr. Parrish, George Sandlin, a Labor Relations Associate at Occidental, Tommy Mathis, International Chemical Workers Local 784 chief shop steward, and Glen Gilmer, a Mines Maintenance Manager, conducted interviews concerning the incident on Friday, April 15, 1994. International Chemical Workers Local 784 (hereinafter referred to as the "Union") represented hourly employees, including Mr. Lumpkin, at Occidental. The President of the Union, Jeffrey Angstadt, was also informed of the incident. Interviews were also conducted on Monday, April 18, 1994. In addition to the individuals listed in finding of fact 16, Shirley Dilger, Occidental's Labor Relations Manager, Jim Heppel, Occidental's Human Resources Manager, and Mr. Angstadt also participated in the interviews. A total of eleven employees were interviewed on April 15 and 18, 1994. Some employees were interviewed more than once. Mr. Lumpkin admitted to Mr. Parrish that he had left the building during the incident to retrieve his hand gun and that he intended to use it. Disciplinary Action Taken for the April 13, 1994 Incident. Based upon the interviews of April 15, 1994, it was correctly concluded that Mr. Law had pulled a knife on Mr. Lumpkin and that Mr. Lumpkin had left the lunchroom to retrieve his gun with the intent to shoot Mr. Law. These incidents constitute violations of well-known company policies requiring a safe, harmonious workplace and prohibiting poor personal conduct. It was also concluded on April 15, 1994, that the incident and the relationship between Mr. Lumpkin and Mr. Law constituted a dangerous situation. Therefore, they were both suspended pending the completion of the investigation. The evidence failed to prove that this action was unreasonable. The conclusions reached by Occidental on April 15, 1994, were sustained at the conclusion of Occcidental's investigation. It was concluded that both men had committed offenses which warranted their termination from employment. Due to their long-term employment with Occidental, however, Occidental decided to suspend both men for thirty days, reassignment of Mr. Law and referral of both employees to an employee assistance program. The Union agreed with this determination. A formal proposal was prepared by Occidental and presented to the Union. The proposal was contained in a document entitled "Conditions for Continued Employment--Jesse C. Law, Darnell Lumpkin." Respondent's exhibit 3. The formal proposal was presented to Mr. Lumpkin through the Union. On April 27, 1994, Mr. Lumpkin signed the proposal accepting the 30 day suspension and other discipline. The evidence failed to prove that Occidental's actions in this matter were based in any way upon Mr. Lumpkin's race. The evidence also failed to prove that Mr. Lumpkin did not violate Occidental work rules. Finally, the evidence failed to prove that Mr. Lumpkin engaged in misconduct similar to that of a persons outside his protected class, and that the disciplinary measures enforced against him were more severe than those enforced against the other persons who engaged in similar misconduct.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief of Darnell Lumpkin. DONE AND ENTERED this 11th day of December, 1995, in Tallahassee Florida. LARRY J. SARTIN 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 11th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-2451 Respondent 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. Mr. Lumpkin did not file a proposed order. Occidental's Proposed Findings of Fact 1 Accepted in 2. 2 Accepted in 17. 3 Accepted in 3 4 Accepted in 1. 5 Accepted in 4. 6 Accepted in 4 and 5. 7 Accepted in 4, 6 and hereby accepted. 8 Accepted in 7. 9 Accepted in 8. 10 Accepted in 9 and 10. 11 Accepted in 9. Hereby accepted. Accepted in 11. The next to the last sentence is not supported by the weight of the evidence. 14-15 Hereby accepted. Accepted in 13 and 14. The evidence failed to prove that Mr. Lumpkin told Mr. McClellan that he intended to "blow [Mr. Law's] head off". Accepted in 15-19. Accepted in 14. The evidence failed to prove that Mr. Lumpkin told Mr. McClellan that he intended to "blow [Mr. Law's] head off". Accepted in 21 and 22. Accepted in 22. 21-22 Accepted in 23. 23 Hereby accepted. 24-25 Accepted in 24 and 25. Hereby accepted. Accepted in 25. 28-30 Hereby accepted. COPIES FURNISHED: Darnell Lumpkin Route 1, Box 67 Jasper, Florida 32052 William B. deMeza, Esquire John E. Phillips, Esquire Post Office Box 1288 Tampa, Florida 33601 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The question in this case is whether GDC should be authorized to go forward with development of some 2,000 acres, a portion of the Myakka Estates project it has planned for North Port in south Sarasota County, and, if so, on what terms. In the prehearing order dated February 8, 1980, the legal issue was stated broadly as "whether the proposed development [Phase I] comports with the standards of Chapter 380, Florida Statues (1979), as set forth in Section 380.06(8) and (11), Florida Statutes (1979) [now 380.06(11) and (13), Florida Statues (Supp. 1980)]." An important question is what legal effect the Master Development Order should be given in the present case. In the same prehearing order, factual issues were stated to include whether the "location . . . [and] approval of the proposed land sales development is consistent with the report and recommendation of the SWFRPC in light of the State, County, and North Port comprehensive plans"; whether "the proposed development will, individually and in combination with approved development, overburden the public school system . . . . overburden the public roads . . . [or] create a negative economic impact upon county and municipal governments"; and whether "GDC has provided for sufficient potable water."
Findings Of Fact GDC proposes to develop 8,135 acres in North Port in Sarasota County, just north of the Charlotte County line, as a new community, to be called Myakka Estates. Phase I, the group of three units slated for development next after the "vested portion" of the project, is designed to occupy a 2,016.56-acre tract within the larger parcel, west of and well upland from the Myakka River, and approximately four miles inland from the Gulf of Mexico. PRESENT CONDITION OF LAND The highest elevation on Phase I is 13 feet above mean sea level. About three quarters of Phase I is covered with slash pine, southern pine, and saw palmetto. Pasture lands, about seven percent of the Phase I tract, are covered with grasses, sedges, other herbaceous plants, and only occasional trees. Freshwater marsh ponds and other marshy areas are distributed more or less evenly over the property in a karstic gestalt, except that an uninterrupted stretch of marsh along the western boundary marks the eastern edge of the northern reaches of Ainger Creek, which further downstream flows across the southwest tip of the property. in the wet areas, limnophilous vegetation, including sportios bakeri, cyperus spp., cladium mariscoides, rhychospora ap., hypericum aspalathoides, xyris iridefolia, eriocaulon decangulare, eleocharis equistoides, pontederia cordota, bacopa caroliniana, and hydrocotyle umbellata, predominates. Opossums, eastern moles, raccoons, otters, and bobcats have been spotted on the Phase I property. Among other mammals whose range includes the Phase I property are shrews, bats, black bear, longtail weasel, mink, Florida panther (Burt and Grossenheider) skunks, gray fox, mountain lion, squirrels, southeastern pocket gophers, rats, mice, rabbits, whitetail deer, and armadillo. People have seen eastern rattlesnakes, pygmy rattlesnakes, water moccasins, eastern garter snakes, yellow rat snakes, anolis carolinensis (a lizard), snapping turtles, common musk turtles, box turtles, gopher tortoises, spiny softshell turtles, bull frogs, leopard frogs, cricket frogs, green tree frogs, and American toads on the Phase I property. There is reason to believe that numerous other snakes, frogs and lizards inhabit the property. On high ground in the Phase I property, people have seen turkey vultures, black vultures, red-tailed hawks, red-shouldered hawks, kestrels, bobwhites, turkeys, mourning doves, ground doves, flickers, red-billed woodpeckers, eastern kingbirds, blue jays, Carolina wrens, mockingbirds, catbirds, robins, loggerhead shrikes, meadowlarks, red-wings, boat-tailed grackles, cardinals, Florida sandhill cranes, and bank swallows. On westland portions of Phase I, people have seen pied-billed grebes, anhingas, great blue herons, American egrets, ivory egrets, Louisiana herons, little blue herons, green herons, least bitterns, wood storks, white ibis, red-winged blackbirds, purple grackles, killdeer, southern bald eagles, and limpkins. Limpkins, wood storkes, southern bald eagles, and Florida sandhill cranes are endangered species. Various fishes live in waters on the Phase I property, including lake chumbuckers, golden shiners, yellow bullheads, flagfish, golden topminnows, four different killifishes, mosquito fish, sailfin mollies, warmouths, bluegills, and three kinds of sunfish. The common prawn the Florida crayfish, and the neritina reclivata also inhabit one or more water bodies on the Phase I tract. Insect populations are relatively low because of the abundance of piscine insectivores. Before GDC acquired the property, men dug ditches which connect several ponds and cause stormwater to drain through them into Ainger Creek which empties into Lemon Bay. Drainage into the ponds and connecting ditches is by sheet flow. Cow dung in the pastures is concentrated around certain ponds, where cattle drink; and may account for some of the nonhuman fecal coliform bacteria that are to be found in Lemon Bay. Part of the Phase I property drains by sheet flow into the Myakka River. The topsoil is sandy on the Phase I tract. In the vicinity of Ainger Creek, Pompano find sand and Keri find sand predominate. These sands, Delray fine sand and Plummer fine sand, are found in most of the low-lying areas on the property. Leon fine sand covers most of the high ground. There is a strip of Immokalee fine sand along the northern border of the Phase I tract other than as pasture or for tree farming would be energy intensive. One expert proposed hydroponic cultivation. ANNEXATION GDC acquired the Myakka Estates property from a rancher in 1970 or 1971, then took steps to cause the parcel to be annexed by the City of North Port, within the municipal boundaries of which other substantial GDC development was already located. The annexation took place notwithstanding the absence of any bridge or road connecting the Myakka Estates parcel to the rest of North Port. These two parts of the City of North Port touch at a corner but are not otherwise contiguous. Some 100,000 lots have been platted in North Port east of the Myakka river; over 90,000 were still vacant at the time of the hearing. At 68 square miles, North Port, with a population of five to eight thousand, is second in land area only to the consolidated City of Jacksonville, the municipality with the largest land area in the state. LAND USE RESTRICTIONS By ordinance of the City of North Port, the entire Myakka Estate parcel is zoned agricultural and has been at all pertinent times. On September 9, 1974, however, North Port entered the Master Development Order authorizing development of all "non-vested" portions of Myakka Estates. In consideration of the Division of State Planning's forbearance from taking an appeal of the Master Development Order to the Land and Water Adjudicatory Commission, GDC agreed to submit "supplemental Applications for Development Approval as a condition to development of specific increments of the master residential plan," GDC Exhibit No. 12, a requirement also imposed by the Master Order itself. North Port has a subdivision ordinance with which, according to the uncontroverted evidence, the proposed Phase I development is in compliance. In June of 1979, North Port adopted a Comprehensive Development and Growth Management Plan, GDC Exhibit Nos. 23 and 91, in accordance with Section 163.3184, Florida Statutes (1979). Because of the pendency of the present proceedings, the SWFRPC and the DCA objected to inclusion of Phase I in the North Port plan. As a result of the objections, the plan makes little reference to Phase I although it notes that planning for Phase I "was conducted in conformance with present standards and was recently approved by the [North Port] Planning Commission and City Commission [apparently by adoption of the Development Order challenged in these proceedings]." GDC Exhibit No. 91, at 28. Stated as an objective of North Port's Comprehensive Development and Growth Management Plan, at p. 22, is To encourage growth that is relatively contiguous to the existing developed area and encompasses within the 25-year period the area bounded on the north by McCarthy Boulevard and Snover Waterway, on the east by Blue Ridge Waterway, and on the south and west by the city limits. GDC Exhibit No. 91. Other stated objectives are to "encourage consistency with and between Florida's Growth Management and Land Development Elements" and Sarasota County's Land Use Plan. It was uncontroverted that plans by General Development Utilities to furnish water and sewer service to Phase I are in conformity with provisions of the North Port plan on those subjects. Sarasota County has never adopted a comprehensive plan in accordance with Section 163.3184, Florida Statutes (1979), but the county does have the Land Use Plan, GDC Exhibit No. 93, referred to in the North Port plan. The Sarasota County Land Use Plan map designates the unincorporated area adjacent to Myakka Estates as appropriate for agriculture. The county has zoned the area along South River Road (formerly State Road 777), immediately adjacent to Myakka Estates, "QUE-1", Open Use, Estate, one dwelling unit per five acres, and the area further west "OUR", Open Use, Rural, one dwelling unit per ten acres. According to a map that is part of the Sarasota County Land Use Plan, Myakka Estates falls in the "low density residential" category, 1.1 to 4.5 units per acre. By its terms, however, this plan applies only to unincorporated areas of Sarasota County. The portion of the Phase I property lying in the easterly half of Section 33, Township 40 South, Range 20 East is within the jurisdiction of the Englewood Water District, which was created by Chapter 59-931, Laws of Florida. At the time of the final hearing, the whole area of EWD was on septic tanks and EWD's water lines did not reach Section 33. Some 166 lots are planned for the portion of Phase I over which EWD has jurisdiction. EWD has a policy of not permitting other water systems within the area served by the district. Its current regulations containing specifications for water and sewer mains and the like were adopted on June 19, 1980. The Florida State Comprehensive Plan, GDS Exhibit No. 92, is an internally inconsistent compilation of "goals", "objectives", and "policies". It was adopted by executive order and approved by the Florida Legislature in 1978. In their proposed recommended orders, the parties identified the following items as being in controversy: Ensure that the expansion of public facilities for economic development is in accordance with local government comprehensive plans and the State Comprehensive Plan. Consider the projected availability of energy when making economic development decisions. Physical, natural, economic, and human resources should be managed and developed in ways that avoid unnecessary long-term energy- intensive investments. Incorporate energy as a major consideration into the planning and decision-making processes of state, regional, and local governments. Encourage land use patterns that by design, size, and location minimize long-term energy commitments to construction, operation, maintenance, and replacement. Encourage a careful, ongoing evaluation of governmental expenditures and revenues in light of future uncertainties about energy supplies and related economic implications. To ensure the orderly long-range social, economic, and physical growth of the state. Identify the costs and benefits of growth to local and state governments and explore methods for allocating these costs to the citizens equitably. Housing should be produced in a mix of types, sizes, and prices that is based on local and regional need and that is consistent with the state's growth policy. Land use and development should proceed in an orderly manner that produces an economically efficient and personally satisfying residential environment with with minimal waste of our land resources. The provision of public facilities, utilities, open space, transportation, and other services that are required to support present and projected housing and community development needs should be ensured. Develop environmentally responsive land planning methods that reduce the stress that new develop- ments place on their communities' energy needs, water needs, sewage treatment facilities, transportation, flood control systems, and social, and educational services, and thus reduce the overall taxes and cost of the services needed to satisfy these demands. Consider energy implications in the review of applications for developments having regional impact (DRI). Land development should be managed in a manner consistent with the values and needs of the citizens of the state and with the concept of private property rights. Agricultural lands, especially those most seriously threatened, should be maintained and preserved for the production of food and fiber products. Influence the timing, distribution, type, density, scale, and design of development by coordinating land development proposals in state and local comprehensive plans and public investment programs in order to ensure the availability of adequate public facilities, services, and other resources. Allocate an equitable share of the cost of expanding public facilities to the newly served residents. Base land development decisions on quantita- tive knowledge of the short- and long-term capabilities of the hydrologic units to provide adequate supplies of water. Coordinate land use planning and water management to ensure the long-range maintenance and enhancement of water quantity and quality. Accommodate new development by using water from the local hydrologic basins rather than through surface water transfer between hydrologic basins. Protect groundwater supplies from saltwater intrusion by the regulation of withdrawals, maintenance of adequate recharge of groundwater, and prevention of saltwater movements inland through coastal canals. Maintain groundwater levels to insure that water levels are not drawn to such a degree that sustained yield is adversely affected or that natural resource degradation takes place. Protect groundwater supplies from saltwater intrusion by the maintenance of a sufficient amount of groundwater in coastal aquifers to prevent intrusion through regulation of withdrawals, maintenance of adequate recharge, and sufficient controls on coastal canals. Protect and maintain groundwater supplies and aquifer recharge areas through water- and land- management practices and, where necessary, through regulation of development activities. Allow alteration of groundwater movements within or between aquifers only where it can be shown that such alterations are not harmful to surface and groundwater resources. Develop minimum service standards for utility systems. Encourage the provision and maintenance of adequate utility systems in already developed areas. In areas where utility systems are over- burdened, manage growth while remedial measures are expedited to restore utility systems to a condition of adequacy. Encourage the effective use of utility systems, energy, land, and finite resources by evaluating and revising, if necessary, laws and regulations that may bar innovative development patterns, designs, and materials. Although authorized to do so by statute, Section 380.06(2)(a), Florida Statutes (Supp. 1980), the Administration Commission has not adopted guidelines and standards for developments of regional impact by administrative rule. PROPOSED DEVELOPMENT After development, water would cover 59.41 acres of Phase I and mostly low lying "open space/green belts" would account for another 504.69 acres. An additional 143.32 acres are planned for recreational uses. Roads and utility easements would account for 398.54 acres. GDC has agreed to construct a municipal services building in the vested portion of Myakka Estates, on a parcel across the street from Phase I. In Phase I, GDC plans to set aside 20.06 acres for an elementary school and 6.97 acres for neighborhood retail outlets. GDC has announced its intention to donate the school site to the Sarasota County School Board. Other school sites have been set aside within Myakka Estates. A large commercial area on a major arterial road is planned for the vested portion and a golf course and other recreational facilities, as well as an industrial site, are planned for later phases of development. Over a 33-year period, GDC plans to build 1,056 multifamily units on 92.61 acres and expects 2,859 single family detached houses to be built, by GDC and other contractors, on lots averaging approximately a quarter of an acre and aggregating 790.06 acres. The average envisioned for Phase I is 1.94 dwelling units per acre as compared to 2.33 dwelling units per acre for Myakka Estates as a whole. In the vested portion of Myakka estates and in the contiguous area to the south GDC is developing "multiple cores". Similarly, two distinct neighborhoods are contemplated in Phase I. GDC plans to build multifamily housing complexes in the neighborhood "cores" to be surrounded by single family detached houses, with vacant lots in between these neighborhood centers. GDC hopes to sell 1,927 unimproved lots in Phase I on an installment basis. Typically the purchaser would undertake to make installment payments over a ten-year period and GDC would agree to construct central water and sewer distribution systems and to pave access roads by the end of the period. A purchaser would be permitted to make prepayment but GDC would only be obligated to convey the lot at the end of the agreed term. GDC plans it so that installment payments will provide GDC enough money to install water and sewer systems and pave roads before GDC is obligated to convey the improved lots. All expenses of hocking up to the water or sewer system, including extending mains, where necessary, are to be borne by the purchaser. the purchaser must secure a building permit before GDC becomes obligated to furnish water. In the event GDC is unable to perform, however, the contract requires the purchaser to choose between accepting a refund of the purchase price and exchanging the lot for another lot. Under certain circumstances the lot owner is allowed a credit against purchase of a home from GDC in addition to the equity in the lot. In 1979, three quarters of the houses GDC sold were sold to lot owners who exercised their option to exchange the equity in houses in a core area, and 99 percent of the houses GDC sold in North Port were located in "core areas". At the time of the hearing, there were already hundreds of thousands of unimproved lots in Lee, Charlotte, and south Sarasota Counties and hundreds of miles of little used roads providing access to the lots. AIR POLLUTION The uncontroverted evidence was that air pollution anticipated as a result of the proposed development, chiefly from automobile exhaust, would not violate state or federal air quality standards. STORMWATER The planned stormwater drainage system has been designed to retain one inch of runoff before discharge from the Phase I property and to prevent flooding of the portions of the property slated for development during storms of up to 25 years return frequency and 24-hour duration. Stormwater in the Ainger Creek watershed will drain from roads and lawns into front- and sideyard swales, to broader, shallow, grassy collector swales, through a series of shallow ponds (with a maximum depth of six feet) equipped with control structures and into Ainger Creek in which GDC has already constructed a weir with a flap gate. Some stormwater will percolate through the sandy soils into the groundwater and, except under the most extreme conditions, groundwater will reach Ainger Creek only after most pollutants have been precipitated or filtered out biologically. Water in the Myakka River watershed will reach the river by sheet flow which, depending on conditions, will also be diminished by percolation and purified by precipitation and biological filtration. Under extremely wet conditions, water entering the Myakka River and Lemon Bay from Ainger Creek will contain pollutants normally associated with residential development, mostly high concentrations of nutrients and small concentrations of heavy metals. GDC's employee's testimony that water entering Lemon Bay will be of a higher quality after development than at present, although uncontroverted, is rejected as incredible, although it could conceivably hold true under mild meteorological conditions. Ainger Creek's flood plain extends east from the thalweg some distance into the Phase I property. See GDC Exhibit Nos. 69, 70, 71, and 72. On preliminary flood insurance rate maps, the United States Department of Housing and Urban Development (HUD) has identified special flood hazard zones along the creek which include 169 acres in proposed Unit 5 in which a minimum elevation of ten feet has been recommended for any habitable space (A-9) and 263 acres in Sections 26, 33, and 34 in which a minimum elevation of 11 feet has been recommended for any habitable space (A-10). The lowest street elevation proposed for the A-10 zone is seven feet. GDC normally adds two to two-and-a- half feet of fill to existing grade before erecting houses, but can add more. The weir across Ainger Creek and the proposed control structures where water outfalls into swales allow the retention upstream of water which otherwise might have flowed into Lemon Bay. Water retained on the Phase I property and elsewhere upstream can percolate through the topsoil and replenish the groundwaters. The weir on Ainger Creek acts as a barrier against the movement of salt water upstream. For both of these reasons, the proposed drainage system should decrease any danger of saltwater intrusion into freshwater aquifers in the area. In the event substantial amounts of salt water (or some pollutant) are introduced into Ainger Creek upstream of the weir, the weir is designed to permit the Creek to be flushed. ECONOMIC IMPACT ON PRIVATE SECTOR Except in the core areas, where GDC plans to market improved real estate, contractors other than GDC would have an opportunity to bid on construction contracts for new houses, a decade or so after installment land sales proposed for Phase I begin. Even before construction of housing, roads would have to be paved, water and sewer pipes would have to be laid, and other utilities would have to be installed. Thousands of people living on the new unpopulated Phase I property would mean additional jobs in the private and public sectors. Since there are already more than 641,000 vacant subdivision lots in the Charlotte Harbor area, however, the region is presumably in little danger of losing out on additional population for want of land developments. FISCAL IMPACT ON LOCAL GOVERNMENT Using census and other population data and reviewing GDC's sales records in other land developments, J. Thomas Campbell, a GDC employee, has projected a 47-year development or build-out schedule for Myakka Estates, forecasting, among other things, how rapidly housing units will be built in Phase I. Taking the build-out schedule as a given, Paul G. Van Buskirk, a GDC consultant, assumed an average household size increasing linearly through time and projected population growth in Phase I year by year for 33 years. Mr. Van Buskirk made assumptions about average household size, the proportion of population over age 65, and the proportion of population of school age, only after examining data of this kind from ten other communities housing mainly retired persons, which he thought would be comparable. He distributed school children among elementary, middle, and high schools on the hypothesis that the proportion would be the same as obtained in the Tampa-St. Petersburg area. In 1975, Mr. Van Buskirk projected streams of revenue and expenditure for local governments attributable to Phase I, forecasting a surplus for North port, Sarasota County, and the Sarasota County School District (School District). He assumed the value of an average house to be $40,000 in 1975 dollars, that market value would be the same as assessed value, and that then current mileages would remain constant. He also projected, in 1975, a tax base in North Port of $119,000,000 in 1979, in 1979 dollars. In fact, North Port's 1979 tax base was $122,000,000. In 1975, he projected a surplus for North Port in 1979 of $905,000 in 1979 dollars ($662,000 in 1975 dollars). In 1979, the surplus was, in fact, slightly more than $700,000. The difference between the projected surplus and the actual surplus is attributable to North Port's decision to retain the same level of services it had in 1975 while lowering the ad valorem tax rate. In his 1975 calculations, Mr. Van Buskirk made no attempt to reduce later years' dollar figures to then present values. In response to criticism by Dr. Fishkind, Sarasota County's economist, Mr. Van Buskirk reduced revenues and expenditures he had projected to present values, by assuming a discount rate of 7.5 percent. This discount rate was chosen to represent the cost of money obtainable by selling tax exempt bonds. At the same time, he posited a ten percent return compounded annually on projected surpluses. After this revision, as before, he forecast a favorable fiscal impact on North Port, Sarasota County, and the School District. CITY OF NORTH PORT The weight of the evidence showed that the fiscal impact of development of Phase I on the City of North Port would probably be favorable. Mr. Van Buskirk's model predicted fiscal developments in North Port with impressive accuracy. The large surpluses projected for the early years of development could not be counted on, however, because they would add to the already existing surplus ($8,000,000 in June of 1980) and to political pressures to lower taxes in such circumstances. North Port's recent reduction in millage, in the face of a growing surplus, evidences a predictably recurring tendency. Even though Phase I is ten miles from the center of North Port, the municipal services building GDC has agreed to build should make this distance a relatively insignificant factor in delivering some municipal services, according to Dr. Fishkind. Volume X, pp. 113-114. SARASOTA COUNTY In projecting what expenditures Sarasota County would make, if Phase I is developed according to schedule, Dr. Fishkind subtracted water and sewer costs but no others from per capita base-year figures to arrive at a per capita figure of $137.02 in 1975 dollars, to which he added special costs projected by Sheriff Hardcastle for law enforcement and Mr. Longworth for roads. Because all three of these figures are significant overstatements, Dr. Fishkind overstated expenditures significantly when he calculated Phase I's negative fiscal impact on Sarasota County over the course of the development as $8,100,000 in 1979 dollars. Dr. Fishkind also failed to include surpluses that would be furnished to county government early on in the development. Mr. Van Buskirk's base year per capital figure is a closer approximation of per capita costs that would be fairly attributable to residents of Phase I, but road and law enforcement costs are probably understated. No increase in real sots is projected and the combined effect of using a 100 percent assessment ratio and ignoring costs of sales is to overstate tax revenues. When Mr. Van Buskirk assumed a 79 percent assessment ratio and an average house value of $35,000 in 1975 dollars, he still projected a $449,000 positive fiscal impact on Sarasota County from development of Phase I. That calculation also included the ten percent interest compounded annually imputed to surpluses, however, without any showing that surpluses from Phase I would be invested rather than expended for some other county purpose, making simple discounting appropriate. Although the evidence is far from clear, it suggests, on balance, that the fiscal impact of Phase I on Sarasota County would be negative. CHARLOTTE COUNTY Charlotte County's public roads, recreation facilities, and schools would be used by the residents of Phase I, if all goes as planned, and Charlotte County would not have the offsetting benefit of ad valorem taxes from Phase I, although it would receive certain offsetting benefits on account of additional students under the current intergovernmental agreements. Phase I's development would have a negative fiscal impact on Charlotte County and the Charlotte County School District. SCHOOL DISTRICT Phase I is some five miles from Englewood Elementary School, ten miles from Venice Gardens Elementary and five to seven miles from Lemon Bay Junior- Senior High School in Charlotte County which accepts students from Sarasota County under the terms of an intergovernmental agreement. These schools are presently operating at or above capacity. Under current conditions, a major development anywhere in Sarasota County would be a burden to the school system. A survey of the school district's capital requirements for the next five years suggests some $67,445,817 will be needed for new construction. Of this, Sarasota County expects to receive $15,797,414 from State sources. Phase I is not expected to house any school children in the next five years, however. In the tenth year of development, the projection is that 489 elementary students, 245 junior high students, and 244 senior high students would live in Phase I, necessitating the construction of at least the first "phase" of an elementary school. Exclusive of site acquisition costs, an elementary school costs about $4,000,000; a junior high school costs about $19,000,000; and a senior high school costs about $18,000,000. If development of Phase I occurs at or above the rate projected by GDC, the net fiscal impact on the School District would probably be negative, but if development lags significantly behind predictions, as Dr. Fishkind testified was likely, the additional years of tax revenues before Phase I places major demands on the school system could well result in a positive fiscal impact on the School District from development of Phase I. POTABLE WATER General Development Utilities (GDU), a subsidiary of GDC, has a franchise from North Port to furnish water within the city limits, including Myakka Estates, except in the portion of Section 33 where EWD has jurisdiction. GDU is a private, not a public, utility, but its use of ground and surface waters renders the water used unavailable to another utility. At an existing water treatment facility on Myakkahatchee Creek, in North Port, about ten miles from Phase I, GDU treats 4.2 million gallons of water a day (mgd), but could treat 8 mgd. GUD also operates a water treatment complex in Fort Ogden on the Peace River, six or seven miles downstream from Arcadia. At the time of the hearing, GDU had the ability to pump 1.5 mgd from the Peace River complex to North Port and Myakka Estates. The Peace River facility includes a raw-water intake structure, a reservoir, and a treatment plant. It has a capacity of 6 mgd although some of its components have larger capacities. The intake structure and 36-inch transmission lines can handle 30 mgd and the filter units have a capacity of 15 mgd. The reservoir covers some 90 acres and has a capacity of 800,000,000 gallons. In all, GDU has reserved 1,000 acres for use as a reservoir, although the need for such a large reservoir is not anticipated even by the year 2050. GUD does not plan to expand the existing reservoir for another ten years. Southwest Florida Water Management District (SWFWMD) has permitted GDU to withdraw up to an average of 5 mgd from the Peach River not to exceed five percent of the day's flow. At Arcadia, the Peace River's daily flow varies seasonally from 32 mgd to ten billion gallons per day. Except for 36 days a year (on the average), 5 mgd is less than 5.7 percent of the low flow of the Peace River. GDU can fill its reservoir by diverting water from the Peace River at times of high flow, so as to get the best water quality, and cause the least proportional diminution of the river's flow. GDU plans to withdraw an average of 13 mgd from the Peace River when capacity of the facility at Fort Ogden reaches 30 mgd. This is approximately 1.5 percent of the Peace River's approximately 800 mgd average flow at Arcadia. Some of the diverted water will never reach Charlotte Harbor because of evaporation at various points. Other water transported to Myakka Estates from the Peace River, whether treated at Fort Ogden or at North Port, would be used for irrigation, and some of this water would drain into Lemon Bay by Ainger Creek and never reach Charlotte Harbor. Most of the water diverted into the Peace River reservoir will eventually make its way through homes in GDC developments into wastewater plants, from there into the groundwater, and ultimately into Charlotte Harbor. Even when water from the Peace River reaches Charlotte Harbor by this route, however, there will ordinarily have been an interbasin transfer. The quality of water in the Peace River is good. If it were necessary to augment river water at the Peace River plant, well water from aquifers in the vicinity would be available. Because this well water is brackish, however, it would be blended with the river water to produce a mixture low enough in chlorides to be potable. Surface water from Myakkahatchee Creek and Snover Waterway could also be transported to the Peace River reservoir, at a rate of 13.5 mgd. Myakkahatchee Creek discharges 20 billion gallons of water into Charlotte Harbor annually. Treating water at the Peace River facility requires about two kilowatts per 1,000 gallons of water. Brackish water is available from well fields in the vicinity of Myakka Estates property, but treating brackish water by reverse osmosis requires about 11 kilowatts per hour. Phase I would, of course, add to future demand for potable water. SEWERAGE By ordinance, North Port requires that new homes be equipped with 3.5- gallon flush toilets instead of the standard 5-gallon models. Since 40 percent of the water used in the average household goes through the toilet, this is an important water conservation measure. GDU plans to provide a sewer system for the whole of Myakka Estates including initially an activated sludge sewer plant with a rated capacity of 250,000 gallons a day to be located on a 40-acre parcel reserved for that purpose. Effluent from the plant would be discharged into a polishing pond then sprayed over soil planted with vegetation to take up nitrogen and phosphorus, through which it would percolate into the groundwater. Once the Myakka Estates plant reached capacity, sewerage would be transported to Gulf Cove in Port Charlotte, six miles from the Phase I property, where an existing plant with a capacity of 333,000 gallons a day now processes 100,000 gallons a day. At the Gulf Cove plant site, GDU has 163 acres available for plant expansion. SOLID WASTE Solid waste from Phase I would be taken to the existing North Port landfill some nine miles distant, as long as that could be used. A second layer of solid waste was being laid down there at the time of the hearing. Monitoring wells had been dug to detect leachates leaving the landfill. A 90-acre site for a new landfill to serve all of North Port has been chosen within the 100-year flood plan of the Myakka River. GDC has agreed to construct the new landfill and lease it to North Port for operation by the city. The use of solid waste for energy production is not feasible, unless quantities on the order of 200 tons a day are available. Part or all of Charlotte County produces about 100 tons a day of solid waste. Per capita, people produce about 5.5 pounds per day of solid waste. LAW ENFORCEMENT Because of the location proposed for Myakka Estates, traffic from Phase I to the already developed center of North port will travel outside the city limits for part of the trip. Travelers from Phase I bound for the commercial district in North Port will pass through unincorporated Sarasota County, except those taking the longer route through Charlotte County. Travel from Phase I to any other municipality in Sarasota County would require passing through unincorporated Sarasota County. At the time of the hearing, the nearest substation of the Sarasota County Sheriff's Office was approximately 30 miles from the Phase I property. At some point, as Myakka Estates becomes populated, depending upon traffic patterns, the Sheriff would create a new Sheriff's patrol zone at a cost of $180,000 (1980 dollars), if present policy on these matters holds. Not all of this amount could fairly be attributed to development of Phase I, although the costs of the proposed development (including Phase I) to the Sarasota County Sheriff's Office would be significantly greater than the costs would be if the same population moved into the area contiguous to the existing center of North Port. North Port plans to furnish primary police protection within its city limits, staffing and equipping the 2,400 square feet municipal services center GDC has agreed to build in the vested portion of Myakka Estates. City prisoners are housed in the county jail, however, and the sheriff's office serves civil process in North Port. In residential land developments in the Charlotte Harbor area, where the roads have typically been laid out rectilinearly, a problem in the interval between road building and construction of housing has been the use of roads as airstrips by smugglers and as drag strips by racing enthusiasts. TRANSPORTATION Within Phase I, streets are to be laid out curvilinearly. Minor collectors are to feed major collectors which are to feed minor arterials which are to feed major arterials, with limited access to larger roads. Three and one-half miles of bicycle paths are planned. No mass transit system is contemplated for Phase I nor would Phase I be able to accommodate a right-of-way for a mass transit facility. There is no mass transit system in Port Charlotte or North Port. The viability of Phase I depends on continued mass ownership and operation of automobiles. U.S. Highway 41, a four-lane divided arterial, runs east and west north of the Myakka Estates property, then through the southwestern corner of the main part of North Port. When I-75 is finished, development may be skewed in its direction, drastically affecting traffic patterns; I-75 is slated to pass north of the property in two or three years. intersecting U.S. Highway 41, running south then southwest to the west of the Myakka Estates property, is South River Road (State Road 777), a two-lane arterial that ends in Englewood and currently handles about 2,000 trips daily. It will require four-laning when the number of daily trips reaches 10,000. South of the property in Charlotte County, another two-lane arterial, State Road 776 runs east-west, dead ending into State Road 771 which crosses the Myakka River at El Jobean and proceeds northeast to Murdock, where it intersects U.S. Highway 41, south of the main area of North Port. GDC has agreed to pave a two-lane road from the vested portion of the Myakka Estates property through Phase I to South River Road (State Road 777). by this route, a trip from the middle of Phase I to the commercial area in North Port would involve a trip of about ten miles. The distance from the middle of Phase I to the nearest post office, which is in Englewood, is approximately 6.5 miles; to Gulf Cove, approximately six miles; to Murdock, approximately 11.5 miles; to a shopping district in Venice, approximately 14.5 miles; and to the nearest hospital, in Venice, approximately 16.5 miles. Sarasota is about 30 miles north and Ft. Myers is some 40 miles distant in the other direction. It is to Sarasota and Ft. Myers that new inhabitants of Myakka Estates would be obliged to travel for concerts, plays, art galleries, and the like. Thee are commercial airports in Ft. Myers and Sarasota. GDC's expert assumed most of the traffic leaving Myakka Estates would travel south to points in Charlotte County because of anticipated development there. Sarasota County's expert assumed most of the traffic leaving Myakka Estates would travel to points in Sarasota County based on ratios of already developed commercial acreage and on an apparently inadvertent chronological mismatching of projected retail and total employment figures: for Venice in Sarasota County year 2000 projections were used while 1990 projections were used for competing areas to the east of Myakka Estates. Development of Phase I would have a substantial and costly impact on public roads in the vicinity. Both new construction and improvement of existing roads would be required, although mainly in rural areas. At least by the time Myakka Estates is fully populated, South River Road, State Road 776, and State Road 771, including the bridge across the Myakka River would have to be four- laned. While the direction of future traffic is disputed, the prospect of thousands of automobiles operating in the area as a result of a fully populated Phase I is very clear. It is impossible to say with certainty which road would have to be widened in which year or what share of the cost should be attributed to Phase I as distinguished from the rest of Myakka Estates and other development in the area, but the eventual impact of Phase I would require expenditures of millions of dollars for public roads. Sarasota County has identified road improvements it needs to make before the year 2000, without taking Myakka Estates into account, and puts their cost at $387,000,000, which is $110,000,000 more than is projected to be available. EMPLOYMENT ACCESSIBILITY Most of the people expected to live in the Phase I development are retired persons who would not be regularly travelling to and from a place of employment. Very few employment opportunities in retail sales and professional offices are forecast for Phase I. The vested portion of Myakka Estates is projected to have significantly more opportunities of this kind. In the beginning, most persons seeking employment would have to travel at least as far as Englewood. At build-out, a later phase of Myakka Estates may afford industrial employment opportunities. SWFRPC REPORT The Master ADA was filed with the Tampa Bay Regional Planning Council, rather than with SWFRPC, because Sarasota County was part of the Tampa Bay Region at the time. The Tampa Bay Regional Planning Council recommended granting the Master ADA on conditions which were subsequently incorporated into the Master Development Order. The Phase I ADA was filed with the SWFRPC. In May of 1975, the SWFRPC issued its report recommending against approval of the Phase I ADA on various grounds, including the physical separation of the proposed development from presently developed areas and necessary services; the existing abundance of vacant platted lots and miles of deserved paved streets in the Charlotte Harbor area; creation of a need for an urban water supply, schools, police, and emergency medical facilities and services far from the areas where the affected local governments have planned to provide such facilities and services; and the adverse fiscal impact of the proposed development on local governments. The report was received in evidence to show what North Port reviewed before entering its development order but it was not offered as proof of the SWFRPC assertions in it.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Florida Land and Water Adjudicatory Commission enter a development order granting GDC's Phase I ADA on such conditions as the Commission shall deem appropriate, including all the conditions contained in the Development Order entered by North Port and the following additional conditions: That GDC sell no lots in the special flood hazard zones as indicated on HUD's preliminary flood insurance rate maps, GDC Exhibit Nos. 69, 70, 71 and 72. That GDC sell no lots within EWD's jurisdiction until and unless EWD shall agree to such a sale in writing. That GDC unconditionally deed to the Sarasota County School District the elementary school site planned for Phase I together with the 50 lots nearest to the site. DONE AND ENTERED this 6th day of January, 1981, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1981. COPIES FURNISHED: Parker D. Thomson, Esquire Kenneth W. Lipman, Esquire and Douglas M. Halsey, Esquire 1300 Southeast First National Bank Building Miami, Florida 33131 C. Laurence Keesey Department of Community Affairs Room 204, Carlton Building Tallahassee, Florida 32301 David E. Bruner, Esquire 581 Springline Drive Naples, Florida 33940 Richard E. Nelson, Esquire and Richard L. Smith, Esquire 2070 Ringling Boulevard Sarasota, Florida 33577 Robert A. Dickinson, Esquire 70 South Indiana Avenue Englewood, Florida 33533 John W. Field Englewood Community Organizations 227 Bahia Vista Drive Englewood, Florida 33533 Wayne Allen, Esquire General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 Mayor Margaret Gentle City of North Port North Port, Florida 33595 Allen J. Levin 209 Conway Boulevard Northeast Port Charlotte, Florida 33952 Office of Planning and Budget Executive Office of the Governor 311 Carlton Building Tallahassee, Florida 32301 The Honorable Robert Graham Governor, State of Florida The Capitol Tallahassee, Florida 32301 The Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 The Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301 The Honorable Gerald Lewis State of Florida Comptroller The Capitol Tallahassee, Florida 32301 Gerald Chambers 6970 Manasota Key Road Englewood, Florida 33533
The Issue Whether Respondents are indebted to Petitioner in the amount of $8,350.00 for agricultural products (bahia sod).
Findings Of Fact Petitioner, McCullough Grass Corporation, is a producer of agricultural products located in Balm, Florida. Respondent, Landtech Services, Inc., is an agricultural dealer located in Largo, Florida. Respondent, Western Surety Company, is a surety which issued a bond to Respondent, Landtech, during times material. Beginning on May 20, 1993 and subsequently on May 22, 23, 24, 25 and 28 and June 2 and 8, 1993, Respondent, Landtech, purchased from Petitioner approximately 167,000 square feet of bahia sod at five cents per square feet for a total invoiced amount of $8,350.00. The terms of the sale between Petitioner and Respondent, Landtech, were for net payment within thirty days after the invoice date. Petitioner timely invoiced Respondent, Landtech, and as of the date of the hearing, no payment had been made by Landtech toward the purchase of the above-referenced sod. Respondent, Landtech, is indebted to Petitioner in the amount of $8,350.00 for the purchase of sod during May and June, 1993.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agricultural issue a final order finding that Respondent, Landtech Services, Inc., is indebted to Petitioner, McCullough Grass Corporation, in the amount of $8,350.00. It is further RECOMMENDED that the Department enter its order requiring that Respondent, Landtech, pay Petitioner the sum of $8,350.00 within fifteen days of the issuance of its final order. It is further RECOMMENDED that if Respondent, Landtech, fails to comply with its final order directing payment to Petitioner, that the Department call upon the surety, Western Surety Company, to pay over to the Department, from funds out of the surety certificate, the amount called for in its final order. 1/ RECOMMENDED this 3rd day of March, 1995, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 3rd day of March, 1995.
The Issue The issue is whether Vista of Fort Walton Beach, LLC (Vista), should be issued Surface Water Management Permit No. 04-2012-0013G authorizing the construction of an earthen embankment dam and impoundment to impound stormwater runoff from a proposed commercial development in the City of DeFuniak Springs (City), Walton County, Florida.
Findings Of Fact The District has regulatory jurisdiction over the construction of certain types of impoundments within its boundaries. If an impoundment is at least ten feet high but less than 25 feet in height and has an impounding capacity of at least 50 acre-feet, a general permit is required. See Fla. Admin. Code R. 40A-4.041(1). Vista, a limited liability corporation, owns an odd- shaped parcel in the City on which it intends to build a small commercial development consisting of a 17,000-square foot building, a parking lot, and related amenities. The vacant parcel abuts the north side of U.S. Highway 90 just east of 18th Street and is approximately 1.66 acres in size. The property is partially wooded and has a small wetland area on its northeastern corner. In conjunction with the proposed commercial development, Vista intends to construct an impoundment to control stormwater runoff from the project. Because the impoundment will be ten feet high and have an impounding capacity of at least 50 acre-feet, Vista is required to obtain a general permit. See Fla. Admin. Code R. 40A-4.041(1). Vista filed a permit application with the District on June 8, 2012. On August 8, 2012, the District gave notice that it intended to issue a surface water management permit to Vista. The permit allows the construction of a stormwater retention basin. A mitigation plan for impacts to 0.23 acres of wetlands was also approved but is not at issue in this proceeding. As described in the District staff report, the project will encompass one earthen embankment dam and impoundment to impound the storm runoff. It will operate as a dry stormwater retention basin designed to impound water only during rainfall events. The facility will utilize a pipe and riser spillway system, and the basin outfall will be protected by a rip-rap lined plunge pool. Due to space restrictions, an engineered retaining wall will be incorporated into the embankment's north side slope. The stormwater will discharge through controlled overflow structures into a nearby wetland area that lies northeast of Vista's property and will then be integrated into an existing channel that eventually forms the headwaters of Sandy Creek to the north. Petitioner has resided on her property since around 1932. Her odd-shaped parcel, described as being between five and seven acres in size, lies immediately to the north of Vista's property. A small wetland is located on the southeastern corner of her property. The two parcels share a common boundary line, appearing to be no more than a hundred feet or so. Because the boundary line is lower than the highest part of each owner's property, a "trench" has formed along the line. Wabash Avenue, a platted but un-built roadway that begins on U.S. Highway 90, runs to the northwest through the wetland area and along the eastern boundaries of both properties. As alleged in the Second Amended Petition, Petitioner is concerned that the project will cause flooding on her property. In a broader sense, she appears to be opposed to any commercial development on Vista's property. The back side of the Vista parcel slopes downhill to a recessed area that is adjacent to both properties. Although some fill has already been placed on the property in preparation for the development, the applicant intends to add "a lot" more fill to the entire parcel to create a gradual slope down to the edge of Wabash Avenue. A basin or pond around 0.20 acres in size will be formed within the fill area and a retaining wall consisting of multiple segments will be constructed around the basin. The wall will be separated from Petitioner's property by a 20-foot buffer, while at its closest point the basin will be "35 feet or so" from her property line. The plans submitted by the applicant demonstrate that the system will be built in accordance with all District standards and should operate in a safe manner. Before construction can begin, the District must approve the retaining wall design specifications. During rain events, the first inch of water will be retained on site for treatment. Additional water will be stored in the basin and then slowly allowed to discharge from the basin into the wetlands. The point of discharge from the basin is at a location a minimum of 20 feet south and east of Petitioner's property line. To ensure that the retention system will not discharge runoff at a higher rate than was discharged before development, Vista performed hydrologic calculations demonstrating pre- and post-development runoff. According to accepted models developed by the United States Department of Agriculture and its predecessor, the Soil Conservation Service, the current peak runoff from the Vista property is 2.46 cubic feet per second (CFS) during a two-year, 24-hour storm event. After development, the volume of water will be reduced to 0.74 CFS. During a 25-year, 24-hour storm event, the volume of runoff post-development is anticipated to drop from 12.59 CFS to 6.51 CFS. Finally, during a 100-year, 24-hour storm event, post- development runoff will be slightly reduced from 19.64 CFS to 18.99 CFS. Therefore, as sited, sized, and designed, the project will reduce runoff during all anticipated storm events. The foregoing calculations were not credibly contradicted and satisfy the requirement that an applicant give reasonable assurance that the project will not cause an increased flow such that it will endanger downstream property in times of flood with respect to state or frequency. See Fla. Admin. Code R. 40A-4.301(2)(f). They also confirm that water in the impoundment will not be raised to a level that could be harmful to the property of others. See Fla. Admin. Code R. 40A- 4.301(2)(c). Thus, the potential for flooding on Petitioner's property will be reduced if the project is constructed as permitted. The Department of Transportation (DOT) is currently repairing the drainage system on U.S. Highway 90 in front of the Vista property. Stormwater from that project drains into the wetlands through an easement deeded to the City at the rear of the Vista property. Petitioner pointed out that after the DOT project began, and fill was added to the Vista property, she has experienced an increase in water on her property. Whether the DOT project is responsible in any way for this hydrologic change is not known. However, accepted testimony by two professional engineers supports a finding that Vista is not responsible for any hydrologic changes on Petitioner's property. Vista was not required to take into account any runoff from the DOT project in making its hydrologic calculations because the amount of runoff from its own property will actually be reduced by the retention system. At hearing, Petitioner contended that a fence she built on the common boundary line with Vista sometime after 1990 was illegally removed by Vista in order to construct the basin. According to Mr. George, who first surveyed the property line in 1990 and then surveyed it a second time a few years ago, the fence was built a few feet beyond Petitioner's property line and lies within the buffer zone between the basin and her property. Petitioner argues that even if this is true, the doctrine of adverse possession applies and she is now the owner of the property on which the fence was built. This type of dispute, however, can only be resolved in circuit court, and not in an administrative forum. See § 26.012(2)(g), Fla. Stat. The District has examined the property records and is satisfied that Vista has ownership of the property on which the impoundment will be built. Notably, the basin will not be located within the 20-foot buffer where the fence once stood and which is dedicated to the City as an easement. Finally, through cross-examination at hearing, Petitioner suggested that any project designed by humans carries with it the remote possibility that it will fail and create a catastrophic situation on her property. In the unlikely event that the design and operation of the retention basin threaten the safety of adjoining property owners, section 373.429 and rule 40A-1.205 enable the District to revoke, suspend, or modify a permit to protect the safety of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order approving the issuance of Surface Water Management System Permit No. 04-2012-0013G to Vista. DONE AND ENTERED this 11th day of March, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 11th day of March, 2013. COPIES FURNISHED: Jonathon Steverson, Executive Director Northwest Florida Water Management District 152 Water Management Drive Havana, Florida 32333-4712 Helen J. Crenshaw 61 North 18th Street DeFuniak Springs, Florida 32433-9547 Kevin X. Crowley, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 James Busby Vista of Fort Walton Beach, LLC Post Office Box 760 Fort Walton Beach, Florida 32549-0760
