The Issue Whether Appellant was wrongfully denied a variance of 21.33 feet to construct a second floor deck at 673 Bay Esplanade, Five Palms Motel Condo, Clearwater, Florida.
Findings Of Fact John Shaw, a resident of Massachusetts, purchased the condominium for which the variance is here requested in December, 1988 without first visiting the property or inquiring about zoning restrictions. The unit purchased is on the second floor of a two story building earlier converted from a hotel or motel into condominiums. The seller told Shaw he could construct a deck over the existing deck on the ground floor condominium below the unit purchased by Shaw. While the construction of this deck was in progress it was discovered no permit had been pulled for the project and the work was stopped. The subsequent application for a permit was denied because the proposed deck encroached some 21.33 feet into the setback area. The application for a variance was denied by the Clearwater Development Code Adjustment Board and this appeal followed. The two buildings comprising this complex were erected many years ago and are non-conforming, i.e., the buildings themselves violate the current Development Code. An existing deck extending into the setback area was constructed on the unit directly below the condominium purchased by Shaw and a similar deck extending to the seawall was constructed on an adjacent building. No permits are on file for those decks. Construction of the proposed deck would improve the livability of the condominium greatly by expanding the area usable for looking seaward. The condominium has been used without this deck for many years. This property is zoned CR-24 and the setback requirement is 25 feet from the water's edge.
The Issue The ultimate issue in this appeal is whether to approve, approve with conditions, or deny the Development Order issued to Appellee Pinellas Education Organization, Inc., d/b/a Enterprise High School (Applicant or School), by the Board on December 3, 2019. Specifically, the following issues must be resolved: Whether Appellants have standing to appeal the Development Order. Whether the issues raised by Appellants at the Oral Argument were properly preserved for appeal. Whether there is substantial competent evidence in the record to support approval of the Development Order.3 Whether the Board's decision departs from the essential requirements of the law. If the Development Order is affirmed, whether any additional conditions are appropriate. PROCEDURAL HISTORY Appellee School filed an application to renovate an existing building to operate a high school at 2495 Enterprise Road, in Clearwater, Florida.4 The Board held a quasi-judicial public hearing on the application on November 19, 2019 (Board Hearing). The Board approved the School's application with conditions and the City issued the Development Order on December 3, 2019. On December 4, 2019, two separate Appeal Applications were filed regarding the Development Order: (1) by 2521 Countryside Blvd., LLP, Countryside Property Principals, LLC, Bruce Levine, and Joan Levine; and by 2505 Enterprise, LLC, and Greg Willsey, and Sandra Willsey. The Appeal Applications were fairly similar and raised a number of issues: four issues pertaining to traffic and parking requirements; and one issue as to whether a high school is a compatible use with the surrounding area. The City referred the matter to DOAH on December 4, 2019, and it was 3 Section 4-505C states, "The burden shall be upon the appellant to show that the decision of the community development board cannot be sustained by substantial competent evidence before the board, or that the decision of the board departs from the essential requirements of law." 4 The School's application went through a Level Two approval process which requires a quasi-judicial public Board hearing to approve flexibility (i.e. deviation) from the minimum development standards set forth in the Code. See Code at §4-401. Level Two approvals must meet both the general applicability criteria and the flexibility criteria outlined by the Code. See Code at Art. 4, Divisions 1, 3, 4 and 6. assigned to an administrative law judge. On December 13, 2019, a telephonic scheduling conference was held to determine the record on appeal and set the oral argument hearing. During that conference the parties agreed not to submit pre-argument briefs, but rather, chose to file post-hearing proposed final orders. The Oral Argument was held at the Clearwater Library and was open to the general public. Applicant, the City, the Board, and all persons who were granted party status at the Board Hearing were allowed to present arguments at the Oral Argument. See Code at 4-505B. At the Board Hearing the following people were granted party status: Dr. Richard Gottlieb, who was represented by Todd Pressman; Sandra Willsey; Greg Willsey; and Todd Burch. The transcript of the Oral Argument was filed with DOAH on February 19, 2020. Pursuant to section 4-505D, the proposed final orders were due within 20 days after the filing of the transcript, or no later than March 11, 2020. Per the City's request, the parties were granted an extension to submit proposed final orders. The additional time was to allow the parties to collaborate on a master index to the record on appeal (Index), which they intended to cite to in their proposed orders. The Index and the proposed final orders were timely submitted on March 23, 2020.5 5 At the Oral Argument, the parties stipulated that the undersigned could take official recognition of the Code provisions and City of Clearwater Comprehensive Plan (Comprehensive Plan) found online. As such, the undersigned takes official recognition of the Code found at https://library.municode.com/fl/clearwater/codes/ community_development_code?nodeId=CODECO (last visited April 14, 2020); and of the Comprehensive Plan found at https://www.myclearwater.com/government/city- departments/planning-development/divisions-/development-review-zoning/comprehensive- plan (last visited April 14, 2020). FACTS IN THE RECORD Pursuant to section 4-505A, the record includes the application file of the Clearwater Planning and Development Department (Planning Department); the agenda packet of the Board Hearing; all exhibits accepted into evidence at the Board Hearing; and the streaming video of the Board Hearing.6 The following findings of fact are supported by substantial competent evidence found in the record. Parties and Property The School filed an application with the Planning Department to renovate a 16,696 square foot building located on a 1.730 acre site at 2495 Enterprise Road in Clearwater, Florida (proposed development). The proposed development is in a retail/office plaza known as Village at Countryside (Plaza), located on the east side of Enterprise Road, just south of Countryside Boulevard in Clearwater, Florida. The Plaza consists of 11 parcels, including a large vacant building that formerly housed a Toys-R-Us store. The Plaza is located within the US 19 Corridor Redevelopment Plan, and has a designation of "US 19 District, Regional Center sub-district" (US 19-RC). Property within US 19-RC is subject to the special zoning district and development standards found at Appendix B of the Code.7 The School seeks to operate Enterprise High School, a charter high school, at the proposed development site.8 As explained below, relevant to this appeal is the number of students at the School and whether there will be adequate parking for the proposed development as required by the Code. 6 See Video of Board Hearing held November 19, 2019, on Agenda FLD2019-8026 at time marker 9:25 at http://clearwater.granicus.com/MediaPlayer.php?view_id=50&clip_id=3782 (last visited April 1, 2020). 7 See Code at Appendix B – US 19 Zoning District and Development Standards, found at https://library.municode.com/fl/clearwater/codes/community_development_code?nodeId=APX BUS19ZODIDEST (last visited April 14, 2020). 8 Enterprise High School is an existing charter school which intends to move from its current location to the proposed development site. The School is subject to section 1013.33, Florida Statutes. Appellants own and operate property within the Plaza and adjacent to the proposed development site. Specifically, Bruce and Joan Levine own Appellants 2521 Countryside Blvd., LLP,9 and Countryside Property Principals, LLC. The LLP and/or LLC operate the Countryside Foot and Ankle Center.10 The Countryside Foot and Ankle Center's administrator, Todd Burch, was granted party status at the Board Hearing. Greg and Sandra Willsey own Appellant 2505 Enterprise, LLC, which is a property in the Plaza. The Willseys were also granted party status at the Board Hearing. At the conclusion of the Board Hearing, the Board voted to approve the School's application. On December 3, 2019, a Development Order was issued to memorialize the Board's action. Thereafter, Appellants filed the Appeal Applications with a document titled "Notice and Statement" which stated the following grounds for the appeals: The Neighbors assert that the decision of the Community Development Board ("the Board") was not supported by substantial competent evidence and was a departure from essential requirements of law. Specifically: The Board's decision was based upon a high school with two, 200-student shifts. However, the record below established that these student shifts would substantially overlap during the noon hour. In other words, the evaluation of the proposed change of use was based on impacts and site requirements that were substantially less than what would actually occur on the site. 9 The Appeal Application lists this entity as 2521 Countryside Boulevard Land Trust. 10 Although Appellants state that Bruce Levine was granted party status at the Board Hearing, there is no substantial competent evidence in the record supporting this statement. See Appellees' Proposed Final Order at p. 3; compare Tab 30 of the Index, Board Meeting Minutes for November 19, 2019, at p. 3 and 5. The Board's decision was based on a traffic analysis provided by the applicant that used a wrong ITE trip generation code - an elementary school instead of a high school - so it cannot be relied upon as a basis for the underlying decision. The change of use to a high school required that the applicant establish that it had one parking space per three students. There is no substantial competent evidence to establish that this parking requirement was satisfied. To the contrary, the substantial competent evidence establishes that the parking on the property failed to meet this requirement. In fact, granting this change of use would result in a substantial oversubscription of the available parking at the site. The proposed use would create tortured on-site parking and traffic circulation patterns that would substantially impact the existing medical office uses on the property, including a kidney dialysis office that serves a substantial elderly population. There is no substantial competent evidence to support the finding that the change of use would "have no impacts on the adjacent retail plaza." To the contrary, the change of use would have substantial impacts on the current retail and office plaza. The proposed change of use would have substantial negative impacts on the surrounding community and is incompatible with the existing surrounding retail, office and residential uses. At the Oral Argument, Appellants raised for the first time whether the operation of a school is an inconsistent use with: (1) an Amended and Restated Declaration of Establishment of Restrictive Covenants, Conditions, and Restrictions, and Grants of Easements dated December 7, 1983 (the "Parking Easement"); and (2) the Comprehensive Plan. The Studies The first four issues raised in the Appeal Applications are related to the Parking Study and Traffic Study (collectively referred to as the Studies) which were submitted by the School as part of its application. The Parking Study, dated September 2, 2019, consists of overall parking calculations; aerial photographs of the development site and surrounding areas; and the Parking Easement. The purpose of the Traffic Study was to analyze the impact of the development on the traffic intersection at Countryside Boulevard and Enterprise Road, as well as the full access drive at the site. The 50-page Traffic Study, dated October 18, 2019, included numerous charts, maps, and tables with underlying information and data relating to the traffic counts for the proposed development. Jerry Dabkowski, a local traffic engineer who prepared the Studies for the School, testified at the Board Hearing about the traffic and parking calculations. To rebut the Studies, at the Board Hearing Mr. Pressman presented a two-page letter from a professional engineer dated November 15, 2019, titled "Traffic Study Review." Relevant to the appeal, the letter finds fault in the number of students and the "ITE Code" used in the Traffic Study and in the Planning Department's Staff Report and Recommendation (Staff Report), dated November 19, 2019, which was also presented to the Board. These factors would affect the calculations for the number of parking spaces required for and the trip distribution caused by the proposed development. Number of Students Appellants argue the parking calculations should be based on the total number of students enrolled at the School, or 400 students. The Studies and the Staff Report calculated the traffic and number of parking spaces necessary based on two shifts with 200 students per shift. At the Board Hearing, Donna Hulbert, the School's Director, testified that unlike a traditional high school, the School operated in two shifts to allow the students to hold employment while completing their high school education. Although the School intends to enroll a total of 400 students, she explained, each of the two shifts would have a maximum of 200 students. Additionally, the students are eligible for a public transportation bus pass, which some students utilize instead of driving their personal vehicles. The Study establishes that "[t]o reduce the impacts during the AM and PM peak hours, the school intends to split the day into two shifts, each with 200 students attending." Although there was conflicting information between the School's application and Ms. Hulbert's testimony at the Board Hearing about whether the shifts would overlap, the Staff Report recommends approval of the application because, "[t]he applicant has provided the school will operate in two shifts . . . with no more than 200 students present per shift." There is substantial competent evidence that there will be only 200 students at the School at a time, and that this number was correctly used in calculating the required parking spaces and the trip generation for the proposed development. ITE Trip Calculation Appellants argue the Traffic Study utilized the wrong Institute of Transportation Engineers' (ITE) Trip Generation Code, 520, which is the code applicable to an elementary school. The Study, however, states it utilized ITE Code 530 from the Institute of Transportation Engineers' Trip Generation, 10th Edition for Office, to calculate the change in trips attributed to the proposed development. A copy of the ITE Code 530 was attached to the Traffic Study. Additionally, Mr. Dabkowski testified that ITE Code 530 was the correct code for high schools. There is substantial competent evidence that ITE Code 530 was used in calculating the change in trips for the Traffic Study which was relied upon in the Staff Report, and which was accepted by the Board. Parking Requirements Table 2 in section B-303, Permitted uses and parking, provides the following parking requirements relevant to this appeal. Use Regional Use Specific Standards Minimum Off-Street Parking Spaces Retail Plaza BCP[Level 1 Minimum Standard(Building Construction permit)] [Not included] 4/1,000 SF GFA Schools FLD [Level 2 Flexible Development (Board approval required)] 1. All off-street parking is located at least 200 feet from any property designated as residential in the Zoning Atlas 1 per 3 students Based on this criterion, the School would require 67 parking spaces (200 students/3 = 66.6667). The Staff Report and Studies establish the proposed site has 55 parking spaces, but five of these spaces cannot be used because they are within 200 feet from a parcel designated as Residential. Thus, there are 49 available parking spaces "on site," leaving 18 spaces to be designated. As stated earlier, the proposed site is one of 11 parcels in the Plaza. The Parking Study contains a copy of a Parking Easement that allows cross- parking among the parcels. Based on the square footage of the buildings on the parcels (including the proposed development site), the entire Plaza is required to have 975 parking spaces. The Plaza actually has 1,137 parking spaces, an excess of 162 parking spaces. The Code also requires off-street parking spaces be located within 600 feet of the principal and accessory uses they serve. See Code at § 3-1404A. Next to and within 600 feet of the proposed development site is currently a vacant building that formerly housed a Toys-R-Us store. That parcel has 228 parking spaces, but only 177 spaces are required for that building, leaving an extra 51 parking spaces. Based on the excess spaces available through the Parking Easement, there is substantial competent evidence supporting the City's staff finding of adequate parking spaces to satisfy the additional 18 spaces necessary for the proposed development, and the Board's approval of the same. Compatible Use The fifth issue raised in the Appeal Applications is regarding the use of the proposed development site as a charter high school. Whether this site is appropriate for the type of school operated by the Applicant was a topic of discussion among the Board members at the Board Hearing. At the Board Hearing, Planning Department Manager Mark Parry testified as an expert witness. Mr. Parry explained the nature of the US 19- RC standards and gave his opinion that the proposed development complies with all applicable provisions of the Code, including the use requirements. In contrast, Appellants expressed anecdotal fears that the types of students attending the School would disrupt Appellants' medical businesses. For example, at the Board Hearing, Mrs. Willsey expressed concern that the students at the School were known to have "behavioral problems." Mr. Burch spoke about the increased number of pedestrians in the Plaza and cited to a letter in the record from Dr. Levine: "For us to have to monitor and police our properties for trespassing students would be untenable." There was no actual evidence in the record that the School's operations would cause any problems such as increased crime or trespassing in the area. At the Oral Argument and in their proposed final order, however, Appellants' argument shifted away from the potential effects of the students in the area and instead offered the new arguments that the School was inconsistent with the Parking Easement which states the Plaza shall be used "for commercial purposes only, including without limitation the operation of merchandising establishments, restaurants, and professional offices."11 Regardless, as explained below, this argument is not appropriate on appeal because it was not raised at the Board Hearing or in the Appeal Applications. At the Oral Argument, Appellants also argued that the School is an inconsistent use with the Comprehensive Plan. Appellants cited a paragraph from the Staff Report: The proposal includes a new charter school with grades nine through 12 and constitutes a public educational facility as defined by Policy J.2.1.2. The school will be located within the US 19–RC future land use designation. The prior designation was Commercial General (CG). The intent is that all uses permitted in the CG are also permitted in the US 19–RC classification. The City is planning to update the Comprehensive Plan to reflect this. Schools are a listed permitted use in the CG classification. As explained below, this argument is also inappropriate because it was not raised at the Board Hearing or in the Appeal Applications. Appellants also argue the proposed development is an inconsistent use with the existing businesses because the adjacent properties are commercial in nature and the School is not commercial. The Code, however, clearly allows Schools as an allowable use in the US 19-RC zoning district, and in the 11 The Complete section of the Parking Easement titled "Uses" states: 2.1 Uses in General The Property, consisting of both the Building Area and the Common Areas, shall be used for commercial purposes only, including without limitation the operation of merchandising establishments, restaurants, and professional offices. No portion of the Property shall be used or operated as a discotheque, bar or cocktail lounge (except in connection with a restaurant) ... theatre, bowling alley, skating rink, roller disco or catering hall, funeral parlor, or for the sale of pornographic literature or material, or an adult book store or so called "head shop" or for a video or other game arcade, flea market, or for a use which would be noxious or immoral or otherwise constitute moral turpitude or constitute an undignified, disreputable use. previous zoning designation of CG. See Code at § B-303. Moreover, unlike the Parking Easement, the Code does not divide use categories into "Commercial" and "Non-Commercial." Rather, the uses are categorized as "Residential" and "Non-Residential." Id. Based on the Code and the review of the application submissions, the Staff Report concluded the School will be an appropriate use in the area. Based on Staff visits, aerial photographs and material submitted by the applicant it is evident that the proposal will be in harmony and consistent with the scale, bulk, coverage and character of adjacent properties and, generally, with properties in the greater neighborhood. The reuse of the 16,700 square foot building with a school will not result in any adverse visual impacts on adjacent properties. Since the character of the site will not change with the proposal, and it is currently similar in nature vis-a-vis placement of other uses in the area it is not expected to impair the value of those properties. The proposal will likely have no effect, negative or otherwise, on the health or safety of persons residing or working in the neighborhood. The testimony of Mr. Parry, coupled with the Staff Report, constitute substantial competent evidence supporting the Board's finding that the School is a compatible use with the area.
The Issue The issue in this case is whether to grant the appeal of Valentinos Koumoulidis from the Planning and Zoning Board's denial of his application for variances from the requirement of a minimum lot width of 150 feet at the setback line and from the requirement of a minimum of 20 percent clear space.
Findings Of Fact When the Appellant, Valentinos Koumoulidis, bought the subject property, the building was being used as a six-unit motel--three units on each of two floors. There were approximately 1600 square feet of space on each of the two floors. The property fronts at 606 Bayway Boulevard; the back of the property is waterfront. In 1991, the Appellant applied for and was granted a parking variance and variances to enable him to convert the first floor to retail use and convert the second floor to a residence. Apparently construction was delayed, and in October, 1992, the Appellant reapplied for the variances to enable him to convert the first floor to retail use and convert the second floor to a residence, while withdrawing the application for a parking variance. (He had decided to convert from straight- in/back-out parking to an off-street parking lot.) In 1994, the Appellant again applied for variances, this time to allow him to add approximately 300 square feet of commercial space to the back of the first floor and approximately 900 square feet of residential space to the back of the second floor. The Board denied those variance requests in October, 1994. Rather than appeal, the Appellant decide not to pursue the addition of commercial space to the back of the first floor and, on December 22, 1994, instead applied for variances to allow him just to add approximately 900 square feet of residential space to the back of the second floor. (Of the 900 square feet, approximately 550 would be enclosed, and approximately 350 would be open deck.) The evidence (primarily through the testimony of Noel Woods, one of the Appellant's neighbors) was that the residential property in the immediate vicinity is comparable, in terms of square footage of living space per dwelling unit, to the Appellant's current second floor--i.e., approximately 1600 to 1700 square feet. There was some evidence that residential properties across the intracoastal waterway from the Appellant's property are valued as high as a million dollars. But the evidence (again, the testimony of Noel Woods) also was that condominium units in the immediate vicinity are valued at approximately $175,000. There was no evidence that the use the Appellant is making of his property (retail on the first floor and residential on the second floor) is not a reasonable use.
Findings Of Fact This application is to provide irrigation necessary to develop 11,520 acres zoned agricultural into improved grazing land. The land to be so developed is Sections 1, 2, 3, 10, 11, 12, 13, 14, 15, 23, 24, & 25, Township 47 South, Range 34 East, a portion of Sections 4, 9, 16, 21, 22, 26, 27, 35 & 36, Township 47 South, Range 34 East, a portion of Section 1, Township 48 South, Range 34 East, and a portion of Section 6, Township 48 South, Range 35, East. It is bounded on the west and southwest by the L-3 canal, and on the east by the Rotenberger tract which has been purchased by the State of Florida as a Wildlife Management Area. Details of the proposed water management system are contained in Exhibit 4, C&SFCD Staff Report. The tract here involved is basically flat with the elevation going from +14 feet in the northwest portion to +13 feet in the southeast portion. Although the Addendum to the Staff Report (Exhibit 5) states that the application calls for the conversion of several thousand acres of original sawgrass Everglades into improved pasture, expert witnesses testified without contradiction that the tract involved is more on the edge of the Everglades and only a small portion in the southeastern part thereof is truly swamp and marsh land typical of the Everglades. The western portion of the area is comprised of sandy soil rather than the muck characteristic of Everglades land. Although the Intervenors contended that the development of the tract would be environmentally counterproductive, no evidence was submitted to support this position. Conversion of the land to pasture may prove more useful to wildlife than leaving it in its present state which primarily supports deer. As improved pasture the land would still support a substantial deer population. Wading birds in particular will benefit if the wild land is converted to pasture. The annual water allocation recommended by the C&SFCD staff and concurred in by applicant, should be 15,360 acre-feet (16.0 inches/acre/year) which is the basin yield for the area. Therefore the irrigation use should have no adverse impact on the water resource or affect other users.
Findings Of Fact Fred Thomas owns a home and lot on the beach in Clearwater at 730 Eldorado Avenue, Mandalay Subdivision, Block 2, Lot 8, now zoned RS-8 (single family residential). The Thomas house was built 30 years ago when front yard setbacks for the area were only 10 feet and there were no open space requirements. Now the front setback in the area is 25 feet, and Section 135.029(8) of the Clearwater Land Development Code now requires lots in RS-8 zones to have a minimum open space of 35 percent of the lot and 40 percent of the front yard. There are many properties in the area of the Thomas house that maintain pre- existing non- conformities to the current setback and open space requirements. The Thomas property, in addition to the pre-existing setback non-conformity, had only 26 percent open space overall and no open space at all (all concrete) in the front yard. In 1987, Thomas undertook renovations to his house. During construction, Thomas' concrete front yard deteriorated from additional cracking, and he decided to replace the concrete with brick pavers. He removed the concrete but then was required to get a building permit for this work. The building permit was not granted because the placement of brick pavers in the front yard violated the open space requirements. Thomas applied for a variance to replace the concrete with brick pavers and later modified the application to be allowed to have 29 percent lot coverage and 12 percent front yard coverage with open space. The modified application was denied by the DCAB after hearing on February 11, 1988, and Thomas took this appeal. Thomas also filed another variance application to be allowed to have 30 percent lot coverage and 16.8 percent front yard coverage with open space. This application was heard on March 10, 1988, and this time the DCAB granted the application. The only open space required under the granted variance not required under the denied variance application is a 10' by 10' square on the far left side of the front yard (facing the house). Thomas claims that this open space requirement prevents him from using a narrow concrete alley to the left of the house (and perhaps the concrete apron in the back of the house) for guest parking, leaving him with a two-car garage and the brick paved area directly in front of the garage that could accommodate two cars but would block the garage. Lack of guest parking would create a hardship of sorts on Thomas. There is no on-street parking in the area, and the Clearwater Police vigorously patrol and ticket violators in the area. The brick paved spaces in front of the garage could be inconvenient to the owners of the vehicles parked in the garage (probably the Thomases) and conceivably could block the cars in the garage temporarily under some circumstances. However, Thomas is incorrect in his presumption that guest parking in the alley and back of the house would be blocked by the 100 square feet of open space required under the granted variance but not under the denied variance application.
Findings Of Fact Application No. 76-00493 is for an existing consumptive use permit for five wells located in the Peace River Basin, Polk County on 608.6 acres. The permit seeks a total average annual withdrawal of 7.2 million gallons per day and a maximum daily withdrawal of 14.97 million gallons per day. Ninety-five percent of the water withdrawal will be used for industrial purposes and five percent will be used for irrigation. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by the application except that well located at Latitude 28 degrees 03' 13", Longitude 81 degrees 47' 54". That the applicant shall record the pumpage from the above meters on a weekly basis and submit a record of that pumpage quarterly to the district beginning January 15, 1977. That the permit shall expire on December 31, 1980
Recommendation It is hereby RECOMMENDED that a consumptive use permit be granted in the amounts applied for in Application No. 76-00493 subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Coca Cola Company Post Office Box 247 Auburndale, Florida 33823
The Issue The issue in this case was to have been whether the evidence sustains the decision of the City of Clearwater Planning and Zoning Board to deny the application of the Appellant for a conditional use permit to sell alcoholic beverages for consumption at the Gallery Restaurant on Sand Key if a outside deck is added to the facility. However, a threshold issue is whether an appointed hearing officer has jurisdiction to decide the case.
Findings Of Fact The Appellant's desire to expand its Gallery Restaurant by adding an outside deck necessitated the filing of an application for a conditional use permit. The application was filed in August, 1994. The matter was presented to the Planning and Zoning Board (the Board) for decision at its meetings on October 18, November 1, and December 13, 1994, but was continued each time. Finally, at its meeting on February 14, 1995, the Board considered and voted to deny the application. On February 23, 1995, a Notice of Appeal was filed with the City Clerk for the City of Clearwater.
Findings Of Fact THE PARTIES CMI is a Florida corporation authorized to do business in Florida. CMI owns a mine site as is depicted in the permit application, which mine site is known as "Pine Level". Alan R. Behrens owns residential property approximately two miles from Pine Level, which abuts Horse Creek. He maintains an individual well for domestic and other purposes, and is a substantially affected person under the statute. Charlotte County is a government entity and a political subdivision of the State of Florida, and is a substantially affected person under the statute. The City of North Port is an incorporated municipality of the State of Florida, and is a substantially affected person under the statute. The Environmental Confederation (ECOSWF), a citizens group, is a substantially affected person under the statute. The District is the agency with the responsibility for reviewing and ruling upon CMI's water use permit application. APPLICATION AND PROCESS CMI proposes to operate a phosphate mine facility at "Pine Level" ("site"). The site is located approximately seven miles west of Arcadia, DeSoto County, Florida. The mine reserves at the site are approximately 17,700 acres. 9,000 to 10,000 acres are projected for mining. In 1978, Consumptive Use Permit No. 200103, was issued and in 1986, the current owners purchased the corporation which held the permit, and changed the name of the corporation to CMI. The Industrial Water Use Permit has not been used since it was issued to a prior owner of the site, and provided for average daily withdrawals of 13.6 mgd from wells. In 1984, this permit was renewed and modified to provide for average daily withdrawals of 12.8 mgd from deep wells. The groundwater withdrawals currently sought by CMI is 6.9 million gallons per day ("mgd") average daily withdrawal, which totals include 5.1 mgd from deep wells for use in the amine flotation process and 1.7 mgd for sealing the matrix slurry pumps. This reduction to 6.9 mgd in permitted withdrawals is a significant reduction. In addition, the proposed permit allows 3.7 mgd to be withdrawn from the surficial aquifer by dewatering mine cuts. In November, 1990, CMI submitted an application for renewal. In November 1991, CMI submitted to the District a revised Water Use Application No. 200103.02 ("application") to renew and modify the existing water use permit. The District requested more information, and CMI provided additional information and supplemental responses to aid in the review and evaluation of the application. The District prepared and submitted a Notice of Intent to Issue Permit and the District staff has prepared a "draft" Permit No. 200103.02 authorizing the withdrawal of the quantities requested in the application with certain conditions. In addition to renewal and modification of the water use permit, which is the subject of this proceeding, CMI will be required to participate in numerous regulatory reviews and permitting procedures (i.e. a development of regional impact evaluation, a federal environmental impact statement, federal approvals under the Clean Water Act [including a national pollutant discharge elimination system ("NPDES") permit], and a conceptual reclamation plan review) before CMI may commence mining, and consequently, begin any withdrawal of water. The mining process will utilize large walking draglines to excavate over burden and stack it beside the active mining area for land reclamation. The ore material called "matrix" will be dug up by the draglines, placed into an earthen pit where it will be slurried with a high pressure water jet. A pump will pick up this slurried matrix material, pump it back to the processing plant where it will first go through various separation devices, including screens and cyclones. The course material termed "pebble" will be separated and parts of that will be directly saleable as a product. The bulk of the phosphate product is contained in intermediate-sized material called concentrate feed. The concentrate feed consists of ore and sand. The ore is separated from the sand in a process called "flotation". The flotation process is a two stage process that ends up separating the tailings sand, which can then go back to the sand-clay flocculation and mixing units, and be pumped out ultimately for land reclamation back in the mine-out areas. The phosphate product which is called "wet rock", is placed in storage bins where it can drain, and be loaded onto rail cars for shipment. The "amine flotation process" is the second stage of flotation where sand and phosphates are separated. This process requires clean water for the amine flotation phase, because any amount of contaminants, including organic reagents, will adversely affect the process. Any mineral particles must be removed so that the amine may attach itself to the phosphate. Any contaminants will destroy or significantly and adversely affect not only the phosphate recovery, but the entire flotation process. Deep well water is requested for use in the amine flotation process because it is clean. All phosphate mines in Florida currently rely on deep well water. 5.2 mgd is the minimum amount of "clean" water needed to assure efficient processing of the amine flotation process of the mine beneficiation plant. Deep well withdrawals are also commonly used for the purpose of sealing or protecting the packing of pumps at various points in the mine system in order to avoid damage to the equipment. These wells are often referred to as "sealing water wells". The Pine Level mine will require 1.7 mgd for this purpose. Water for the sealing water wells must be clean and clear in order to effectively seal pumps for leaks. The Pine Level project will provide 400-500 construction jobs during the construction period. It will provide approximately 200 full-time jobs with an annual payroll of about five million dollars once it is in operation. It will result in about one thousand additional jobs providing services to the development. It will pay in excess of one million dollars a year to DeSoto County in ad valorem taxes. TECHNICAL CRITERIA The water use is a reasonable and beneficial use. 5.2 mgd groundwater withdrawal is "necessary to fill a certain reasonable demand." The technical criteria relating to water level or rates of flow impacts set forth in Rule 40D-2.301(1)(d), Florida Administrative Code, are not applicable in this proceeding because the District has not established any regulatory levels or rates of flow for the area encompassed by the application. In addition, this presumption only addresses surface water withdrawals. Phosphate mining is a beneficial activity and is consistent with the public interest. There is no significant risk of salt water intrusion. The water use withdrawal will not degrade the water quality in the aquifer by causing any contamination plume to spread. There have been no contaminant plumes identified on site. GROUNDWATER IMPACTS There is sufficient ground water at the site of a suitable quality and quantity to support the proposed phosphate mining and beneficiation activities. The local hydrogeology at the site consists of an upper layer known as the surficial aquifer. Rain penetrates the surficial aquifer to flow vertically to the water table. The water that is not consumed by vegetation at this layer will flow either to a nearby stream channel or will leak down through a semi- confining layer. The water continues to seep vertically into the lower underlying limestone aquifers. There are three limestone water-bearing layers: the intermediate, the Suwannee or Upper Floridan, and the Avon Park or Lower Floridan aquifers, respectively. The intermediate and the underlying Suwannee aquifer are separated by another semi-confining layer. Likewise, the Avon Park aquifer and the Suwannee aquifer are separated by another semi-confining layer. At the site, wells in the intermediate aquifer will draw water to seal the bearings on the matrix slurry pumps. There will be one deep well in the Suwannee and one deep well in the Avon Park to draw for the beneficiation plant. The groundwater modeling performed by CMI simulated the four aquifers, that is, the surficial aquifer and each of the three limestone aquifers. An Aquifer Performance Test ("APT") was performed at the site. The data generated from the APT was used to calculate various aquifer parameters, for example, transmissivity, storage coefficient, and leakiness. This information was then used in setting up the groundwater flow model that ultimately was incorporated into the application. During the District staff's review of the application, the deep well withdrawal quantities requested by CMI were compared with approximately 6 other phosphate mines of comparable size, acreage, and type of operation. As a result of this comparison, the staff found CMI's requested use to be less than the other six phosphate mines. The use of recycled water in the amine flotation process in place of deep well water in the past by CMI has proven unsuccessful because a constant temperature and a constant ph level could not be maintained with recycled water, and recycled water contains traces of fatty acids and oils, which also negatively affect the amine flotation process. C.F. Industries, Inc., has been operating a phosphate mine in Hardee County, Florida, since 1978. C.F. Industries, Inc., has since 1983 at the Hardee County mine, successfully substituted recirculation water for deep well water for operation of the amine flotation circuit on a routine basis. C.F. Industries, Inc., presently plans to employ substitution of some recirculation water for deep well water in a new yet-to-be permitted mine. C.F. Industries, Inc., at its existing Hardee County mine requires use of deep well water for start-up purposes to "charge" the system. C.F. Industries, Inc., at its existing mine, uses deep well water to respond to abnormal operational conditions, including excessive rainfall events, when the quality of the normal recirculation water is not suitable for substitution of deep well water. Neither CMI, nor District staff was aware prior to hearing, that the C.F. mine was successfully substituting recycled water for deep well water in the amine flotation process. At the time of making the representations to the District about necessary water quality requirements of the flotation process, CMI had a study, entitled, Amine Water Evaluation, Pine Level Project, July 27, 1984, ("Pilot Plant Study"), which concluded that deep well pumping and discharge could be reduced by use of water drawn from mine cuts. The Pilot Plant study was site specific to CMI's proposed phosphate mine. The Pilot Plant study bench tests were verified in the same pilot plant facility CMI uses to verify the grade of ore on the Pine Level Site. The Pilot Plant study or its results were known to CMI officials or experts involved in the permit application at issue in this case. CMI did not inform District staff of the existence or conclusions of the Pilot Plant study. The Pilot Plant study indicates that CMI could reduce its water usage by substituting water from mine cuts for deep well water. CMI did no studies to determine if the substitution of mine cut water for deep well water, as suggested by the Pilot Plant Study, was feasible to implement. SURFACE WATER IMPACTS The phosphate ore (matrix), is extracted by an excavation machine called a "dragline", which opens mining cuts of approximately 32 to 35 feet in depth, 330 feet wide, and up to 4,000 feet long. Seepage occurs into the mine cuts from the water table, and must be pumped out in order to see and extract the matrix. This dewatering is also necessary to protect the draglines against slope stability problems. Water pumped out of the mining cuts is introduced into the mine water recirculation system which is operated for purposes of collecting and recycling water within the mine complex. The matrix that is extracted from the mining cut is placed in a shallow excavation near the cut, and is converted to a slurry and, thereafter, transported hydraulically to the mine processing (or "beneficiation") plant. The beneficiation plant uses considerable quantities of water, utilizing supplies from within the mine system (i.e. surface water) and water from deep wells. Sand tailings and sand and clay mixture are by-products of the mining process. Recycled water is used to transport waste clay and sand from the plant to the disposal and reclamation areas. Reclamation takes 1-2 years for areas reclaimed with sand tailings and 5-6 years for areas reclaimed with a sand-clay mixture. Groundwater that is used in the processing plant is recycled. Water within the mine is recycled a number of times, and CMI's proposal calls for 90 percent of the total mine demand to be satisfied by this recirculation system and approximately 96 percent of the water used is recyclable water. DEWATERING AND WATER BALANCE CMI's mine pit dewatering activities result in the withdrawal of water from the surficial aquifer. A "water balance" demonstrates that requested quantities relate to reasonable mining, processing, and dewatering needs. The "water balance" for the mining operation evidences a balance between sources and uses/losses. The sources of water in the CMI water balance that input to the mining operation include groundwater from wells (6.9 mgd), mine cut dewatering or water table drainage (3.7 mgd), and collected rainfall (3.1 mgd). Uses and losses associated with the mining operation include water retained in clays (6.7 mgd), water shipped with final product (.7 mgd), evapotranspiration and evaporation (3.0 mgd), water used for agricultural irrigation (5.0 mgd), and water seeping from the Mine Water Surge Area ("MWSA") (1.2 mgd). The water balance matrix moisture component of 2.9 mgd is not a withdrawal of water for water use permitting purposes. The District's modeling of the impacts resulting from mine cut dewatering resulted in a finding of 2.34 MGD as opposed to the 3.7 mgd derived by CMI. For calculation purposes, rainfall is collected at the rate of 3,974 gallons per acre per day. CMI calculates that it will collect 3.1 mgd of rainfall, and use it in its recirculation system. The 3.1 mgd calculation is based on the amount of rain that will fall on 600 acres of mine water surge area, 80 acres of plant site, and two 50 acre mine cuts. CMI plans to mine 450 acres each year at the Pine Level Site over a period of 22 years. Runoff over disturbed areas on the CMI mine site must be captured, and will become part of the recirculation system. Assuming only one year of disturbed area during the permit term, CMI has failed to account for nearly 1.8 mgd in its water balance (450 acres x 3,974 gallons/acre/day). CMI plans to pump any rainfall collected from all disturbed areas to the mine water surge area (MWSA). CMI has not included any acres of disturbed area in its calculations of the amount of rainfall it will collect for the current permit. CMI has not submitted a mine plan. Without a mine plan, the number of disturbed acres cannot be determined. Because CMI's water balance does not include rainfall collected over disturbed areas, the water balance is incorrect. The rainfall collected from the disturbed areas will increase the amount of water that CMI will need to discharge or use for agricultural purposes. Excavation of the Mine Water Surge Area will cause dewatering of the surficial aquifer. No analysis was done of how much dewatering of the surficial aquifer will occur as a result of the excavation of the MWSA, or of the potential impacts to wetlands as a result of the dewatering activities. The District's one foot draw down presumption applies to dewatering as well as to groundwater pumping. The proposed dewatering setback from wetlands was set at 660 feet. The 660 foot setback distance is in lieu of mitigation if CMI wishes to mine within the setback distance, it will be required to implement mitigation procedures. Dewatering draw downs in the surficial aquifer as great as six and one-half to seven feet could occur on the CMI site at 660 feet from a mine cut under dry weather conditions. At 660 feet, the predicted draw down is nearly one and one-half feet using a mine pit depth of 26 feet, based on a three foot water table and a 29 foot average mine cut depth for the area expected to be mined during the term of the permit. Actual mine cut depths during the term of the permit would be as deep as thirty-seven feet which result in a draw down in the aquifer that is greater than one and on-half feet. Combining the dewatering calculations with the surficial aquifer draw downs resulting from CMI's planned well pumping from the intermediate and Floridian aquifers result in greater than predicted draw downs. CMI's water balance did not account for changes in water needs due to variability of the ore body. WATER QUALITY CMI has not demonstrated that the water quantities requested for the operation of the phosphate mine and beneficiation plant, and land reclamation and water handling will utilize the lowest water quality to the greatest extent practicable. Nevertheless, the Pine Level mine is innovative in comparison to other operating mines. It proposes to reduce its groundwater requirement by increasing the amount of recycled water used in the amine flotation process; employ an innovative sand/clay mixing technique for land reclamation, thus eliminating the need for conventional large, above-ground day settling areas or slime ponds; and use surplus water for irrigation of agricultural crops or pasture. CMI plans to mine the Pine Level Site for a period of 22 years. For phosphate mines, neither DNR, nor SWFWMD analyze impacts with respect to surface water during the mining process. For phosphate mines, no state agency looks at off-site surface water impacts from the standpoint of draw downs, with the possible exception of cities and counties. The District has not required CMI to submit an application for the management and storage of surface waters permit, since the District staff believes that phosphate mines are exempt from obtaining any MSSW permit from the District. A gap exists in the regulatory scheme for phosphate mines with respect to the reduction of surface water flows during the mining process if SWFWMD exempts phosphate mines from obtaining an MSSW permit. INTERFERENCE WITH EXISTING LEGAL USERS The City of North Port is an existing legal user of water. The City of North Port has a public water supply facility which draws its water from the Big Slough. The Big Slough normally gets a portion of its flow from high quality water in the surficial aquifer. CMI's proposed Pine Level phosphate mine is located in the watersheds which feed the Big Slough and the Peace River. In the initial years of the mine, virtually all of the collected rainfall will be diverted from the Big Slough watershed. No analysis has been done to see how dewatering might affect the City of North Port. Any significant reduction in flow to the City of North Port's facility during the low flow season will interfere with North Ports existing legal use of water. Diversion of 3.1 mgd of rainfall from the Big Slough will have an adverse impact on the City of North Port's water facility. The City of North Port is currently under a consent agreement with the Florida Department of Environmental Regulation because the water supplied by its facility violates drinking water quality standards for sulfates and total dissolved solids ("TDS") regularly during periods of low flow in the Big Slough. The MWSA, the plant area and the initial mining areas are primarily within the Big Slough drainage area. Seepage of 1.2 mgd from the MWSA will flow into the Big Slough. The only analysis done of the quality of the seepage from the MWSA was a rough analysis which showed that sulfates will likely be around 550 grams per liter. The legal standard for sulfates in drinking water is 250 grams per liter. Seepage from the MWSA will be high in total dissolved solids ("TDS") since a good portion of it was pumped from deep wells which have very high levels of TDS. No analysis was done of the potential of this seepage water to interfere with North Port's facility. Charlotte County is an existing legal user of water whose water supply is drawn from the Peace River downstream from the proposed CMI phosphate mine at Pine Level. Discharge of 5.0 mgd from the Pine Level mine could adversely affect Charlotte County's drinking water facility located on the Peace River. AGRICULTURAL USE CMI proposes to use 5.0 MGD of surplus water for irrigation of pasture grasses for cattle. CMI has not conducted any specific tests to determine the feasibility of using the discharge or the quality of the water that they plan to use for agricultural irrigation. The water for irrigation will be drawn out of the mine water surge area. The determination of whether the 5.0 mgd discharge can be used for agricultural irrigation has been postponed. The staff's position is that the proposed special conditions provide reasonable assurances that the discharge will comply with the requirements of the Basis for Review. WETLANDS Isolated wetlands occur throughout the CMI mine site. The isolated wetlands on the CMI property provide habitat for endangered and threatened species. Sandhill Cranes and Wood Storks, both threatened or endangered species, were sighted on the CMI property by wetlands experts during their site visit prior to the hearing. Small isolated wetlands on CMI property would be adversely affected by less than a one foot draw down. Wetland peat soils oxidize if exposed to the air. Oxidation results in subsidence of the wetland soils, which adversely impacts wetlands. Too much water as well as too little water can adversely impact wetlands. The combined effects of aquifer pumping and dewatering planned at the CMI site will adversely affect wetlands. No analysis was completed of the impacts to wetlands as a result of the combined effects of dewatering and pumping from the aquifer. No information regarding the normal range of wetland hydroperiods for preserved wetlands or other onsite unmined wetlands was introduced. No information was provided regarding the habitat functions provided by the wetlands on the CMI site either for threatened or endangered species or otherwise. ENVIRONMENTAL IMPACT The Applicant did not provide reasonable assurance that the water use will not cause unacceptable adverse impacts to environmental features on or off- site. The Applicant did not provide reasonable assurances that the water use will not have an adverse impact to surface water bodies such as lakes, ponds, impoundments, springs, streams, canals, estuaries or other water courses. The Applicant did not provide reasonable assurances that there will be no adverse environmental impact to wetlands, lakes, streams, estuaries, fish, and wildlife or other natural resources. The Applicant did not provide reasonable assurances that there will be no adverse impacts to the surface water system or vegetation as a result of groundwater withdrawal. The Applicant did not provide reasonable assurances that the water use will not have an adverse impact by altering or impairing the habitat of threatened or endangered species. The Applicant did not provide reasonable assurances that the projected draw downs will not result in any adverse impact to any protected or non-protected plant or animal species. The Applicant did not provide reasonable assurances that the water use will not have an adverse environmental impact to wetlands.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Governing Board of Southwest Florida Water Management District enter a Final Order DENYING the issuance of a Water Use Permit to the Applicant, CMI. DONE and ENTERED this 20th day of April, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 20th day of April, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs - 13, 14, 15, 21, 24, 31, 35, 38, 70, 71, 73, 75, 91, 97, 100, 104, 105, 114, 115, 116, 125, 126, 127, 128, and 129. Rejected as subsumed or irrelevant and immaterial: paragraphs - 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 19, 20, 22, 23, 25, 27, 28, 29, 30, 33, 34, 36, 37, 37A, 39 40, 43, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 72, 74, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86,87, 92, 93, 94, 95, 96, 98, 99, 101, 102, 103, 106A, 106, 107, 108, 109, 110, 111, 112, 113, 117, 120, 121, 122, 123, 124, 130, 131, 132, 133, and 134. Rejected as against the greater weight of the evidence: paragraphs - 18, 26, 32, 41, 42, 46 (omitted), 47 (omitted), 69, 88 (omitted), 89 (omitted), 90 (omitted), 118 (omitted), 119 (omitted), and 135 (omitted). Proposed findings of fact submitted by Petitioner, Charlotte County. Accepted in substance: paragraphs - 1, 2, 7, 18, 19, 20, 22, 25, 28, 29, 36, 40, 41, 51, 59, and 62. Rejected as argument, subsumed or irrelevant and immaterial: paragraphs - 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 21, 23, 24, 26, 27, 30, 31, 32, 33, 34, 35, 37, 38, 39, 42, 45, 46, 47, 48, 49, 50, 52, 53, 54, 55, 56, 57, 58, 60, and 61. Rejected as hearsay: paragraphs - 43 and 44. Proposed findings of fact submitted by Petitioner, City of North Port. Accepted in substance: paragraphs - 1, 2, 3, 5, 6, 7, 9, 19, 20, 21, 22, 24(in part), 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 45, 47, 48, 49(in part), 50, 51, 52, 53, 54, 56, 57(in part), 58, 59, 60, 61, 63(in part), 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 78, 79, 80, 83, 84, 85, 86(in part), 87, 92, 93, 95, 96, 99, 104, 107, 108(in part), 109(in part), 112, 113, 114, 115, 116, 120, 122, 123, 126, 138, 139, 140, 141, 142, 143(in part), 144, 150, 153, 154, 155, 156, 159, 167, 168, 170, 171, 172, 173, 176, 177, 179, 180, 187, 193, 194, 195, 197, 198, 199, 200, 201, 202, 204, 205. Rejected as argument, subsumed or irrelevant and immaterial: paragraphs - 4(contained in Preliminary Statement), 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 23, 24(in part), 33, 43, 44, 46, 49(in part), 55, 57(in part), 62, 63(in part), 64, 76, 77, 81, 82, 86(in part), 88, 89, 90, 91, 94, 97, 98, 100, 101, 102, 103, 105, 106, 108(in part), 109 (in part), 110, 111, 117, 118, 119, 121, 124, 125, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 143(in part), 145, 146, 147, 148, 149, 151, 152, 157, 158, 160, 161, 162, 163, 164, 165, 166, 169, 174, 175, 178, 181, 182, 183, 184, 185, 186, 188, 189, 190, 191, 192, 196, 203, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217. Proposed findings of fact submitted by Respondent/Petitioner Consolidated Minerals, Inc. and Southwest Florida Water Management District. Accepted in Substance: paragraphs - 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 17, 18, 19, 20, 21, 22(in part), 23, 24, 25(in part), 26, 27(in part), 28, 29(in part), 32, 33(in part), 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 52(in part), 53, 54, 55, 56, 57(in part), 58, 62, 71, 82, 85, 87, 88, 91, 92(in part), 93, 94(in part), 95(in part), 96(in part), 97(in part), 100(in part), 101, 115, 119, 120, 123, 124(in part), 125(in part), 126(in part), 127(in part), 130(in part), 133(in part), 137, 138(in part), 139, 145. Rejected as argument, subsumed, or irrelevant and immaterial: paragraphs - 12, 13, 15, 16, 31, 36, 37, 38, 48, 51, 52(in part), 57(in part), 59, 60, 63, 80, 81, 83, 84, 86, 90, 94(in part), 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 116, 117, 118, 124(in part), 126(in part), 127(in part), 130(in part), 134, 135, 136, 138(in part), 140, 141, 142, 143. Rejected as against the greater weight of evidence: paragrahs - 22(in part), 25(in part), 27(in part), 29(in part), 30, 33(in part), 34, 35, 61, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 89, 92(in part), 95(in part), 96(in part), 97(in part), 98, 99, 100(in part), 102, 103, 121, 122, 125(in part), 128, 129, 131, 132, 133(in part), 144. Proposed findings of fact submitted by Petitoner, Environmental Confederation of Southwest Florida, Inc. Accepted in substance: paragraphs - 1, 2, 3, 4 6, 7, 17, 22, 26, 27, 28, 29, 30, 33(in part), 34, 35, 39(in part) 41, 42, 43, 45, 48, 53, 56, 57, 59, 60, 61, 62, 71, 73, 80, 81, 82, 85, 86, 87, 92(in part), 106, 107, 110, 112, 113, 114, 115, 116, 117, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139(in part), 140, 141, 142, 143, 144, 145, 148, 149, 150, 151, 152, 154, 155, 157, 158, 162, 163, 164, 165. Rejected as argument, subsumed, or irrelevant and immaterial: paragraphs - 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 23, 24, 25, 31, 32 33(in part), 36, 37, 38, 39(in part), 46, 47, 49, 50, 51, 52, 55, 58, 63, 64, 65, 66, 67, 68, 70, 72, 74, 75, 76, 77, 78, 79, 83, 84, 88, 89, 90, 91, 92(in part), 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 108, 109, 111, 118, 119, 120, 146, 147, 153, 156, 159, 160, 161, 166, 167, 168. Rejected as against the greater weight of evidence: paragraphs - 44, 54, 69, 139(in part). COPIES FURNISHED: Rory C. Ryan, Esquire Roger W. Sims, Esquire HOLLAND & KNIGHT Suite 2600 200 S. Orange Avenue P. O. Box 1526 Orlando, Florida 32802 Vivian Arenas, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad St. Brooksville, Florida 34609 Mr. Alan R. Behrens Route 2, Box 725-A-32 Arcadia, Florida 33821 Matthew G. Minter, Esquire County Attorney 18500 Murdock Cr. Port Charlotte, Florida 33948-1094 David M. Levin, Esquire ICARD, MERRILL, CULLIS, TIMM, FUREN & GINSBURG PO Box 4195 Sarasota, Florida 34237 Kenneth B. Wright, Esquire Sierra Club Legal Defense Fund PO Box 1329 Tallahassee, Florida 32302 Peter G. Hubbell Executive Director 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to grant the application of the Appellant, the City of Clearwater for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida. (The pier was destroyed by the "No Name Storm of the Century" on March 12-13, 1993.)
Findings Of Fact On or about September 1, 1993, the City of Clearwater applied to the City of Clearwater Development Code Adjustment Board (the Board) for dock length, width and setback variances to reconstruct the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida, where it terminates at the waterfront in an "aquatic lands/coastal zoning district." The pier was 91.5 feet in length and 40 feet in width; it was set back 12.5 feet from the extension of the adjacent property lines. It was destroyed by the "No Name Storm of the Century" on March 12-13, 1993. Since the site has 65 feet of waterfront, reconstructing it to its previous dimensions requires variances of: (1) 59 feet in dock length (over the 32.5 feet allowed by the City of Clearwater Development Code); (2) 17.25 feet in dock width (over the 22.75 feet allowed by the Code); and (3) 7.5 feet reduction in setback from the extended adjacent property lines (below the 20 feet required by the Code.) Before its destruction, the public pier at the west end of Magnolia Drive in Clearwater had been in existence for many years. (The original version was built in approximately 1915.) The evidence is that the community at large desires to reconstruct the pier to its former dimensions. The old pier has historic and sentimental significance. It also serves as a recreational facility for residents without private access to a dock on the waterfront. Especially in the last several years before its destruction, public use of the old pier brought with it problems of misuse, loitering, litter, noise, trespassing, and crime. The police did not have the resources to prevent these problems. Criminal activity in the area seems to have decreased since the destruction of the old pier. As a result, the property owners closest to the pier do not want the public pier reconstructed at all, and certainly do not want it reconstructed to its former dimensions. They oppose the variance application. The conditions imposed by the Board (no deviation from the proposed materials and building plan, the erection of signs as to closing times to be enforced by the police, proper lighting, and the installation of an electronic safety system, including a gate, to be monitored by the police) will help alleviate many of the concerns of the neighboring property owners but are not guaranteed to eliminate them in their entirety. The water is shallow in the vicinity of the site, and a dock of a certain length is necessary for the dock to be used for boats of any appreciable size and draft. However, this condition is not unique to the particular site in question, but is uniformly applicable all along the City waterfront, and there was no evidence as to the length of dock required for adequate water depth for use by boats. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located. There is no competent, substantial evidence in the record from which it could be found that the granting of the variance will not impair the value of surrounding property.
The Issue The ultimate legal and factual issue in this matter is whether Engle Homes, Inc., and Lake Bernadette, Inc. (Permittees), have provided the Southwest Florida Water Management District (District) with reasonable assurances that the activities they propose to conduct pursuant to Management and Storage of Surface Water (MSSW) General Construction Permit No. 49005837.017 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, 40D-4.302, and 40D- 40.302, Florida Administrative Code. In particular, the issues of fact to be litigated are whether the Project will cause adverse water quality impacts to receiving waters and adjacent lands; whether the Project will cause adverse flooding of on-site or off-site property; whether the Project will cause impacts to existing surface water storage and conveyance capabilities; and whether the Project will adversely affect the property of others.
Findings Of Fact The Parties Engle Homes, Inc., and Lake Bernadette, Inc., are corporations licensed to operate in the State of Florida. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. Driscoll resides at 35716 Welby Court, Zephyrhills, Florida 33541, Lot 14, within the Timber Creek 2 Subdivision (Subdivision). Driscoll requested this hearing to show the District that there is a drainage problem on Lots 13 and 14, and the adjacent Geiger property to the south, which should be fixed at this time and as part of the Project. Driscoll wants "Engle Homes to propose a new solution to fix the entire Welby Court Geiger property problem," i.e., from Lots 4 through 14, and not a piecemeal solution as proposed in the Permit modification. The Subdivision Engle Homes, Inc., and Lake Bernadette, Inc., developed the Timber Creek 2 Subdivision. Lots 15 through 25 run east to west and are north of Welby Court. Lots 15 and 16 are located north of the cul-de-sac, on the eastern portion of Welby Court. Lots 3 through 14 run west to east, south of Welby Court. Lots 13 and 14 are south of the cul-de-sac on the eastern portion of Welby Court and are across the street and the cul-de-sac from Lots 16 and 15, respectively. Residences exist on Lots 5, and 7 through 14. Driscoll owns Lot 14, a corner lot, which is the southeastern most lot of the Subdivision. Don Geiger (Geiger) owns the land (approximately five acres) south of the property lines of Subdivision Lots 5 through Geiger's northern driveway, essentially a dirt road, runs parallel to Lots 5 through 14. Subsequent to the original construction activity involving the Subdivision, the developer realized that there was an "existing depression" (referenced on Engle Exhibit number 1), south of Lots 7 and 8, and on Geiger's property. Geiger complained to the District about standing water in this area. This depression area is approximately 90 feet long and 30 feet wide which needed to be "drained off" according to Geiger. The depressed area on Geiger's property was most likely caused when Lots 7 through 14 were graded and sodded, which raised the "lots up a few inches" above Geiger's driveway/property. Water is trapped during a storm event between the back yards and the depressed area. As a result, the southern end of the back yards, particularly Lots 7 and 8, and the driveway remain constantly wet. The Project On January 16, 2001, Engle Homes, Inc., and Lake Bernadette, Inc., filed MSSW Permit Application No. 49005837.017 with the District, to address the problems with the rear lot grading and the adjacent property. The actual Project area for the permit modification1 includes the southern portions of Lots 4 through 9 and south of the property lot line including Geiger's property. See Finding of Fact 5. The modified permit does not address the drainage area including the back yards of Lot 13 and Driscoll's Lot 14, and the other portion of Geiger's property/driveway to the south. On April 5, 2001, the District issued MSSW Permit No. 49005837.017 to Engle Homes, Inc., and Lake Bernadette, Inc., under the provisions of Chapter 373, Florida Statutes, and Chapter 40D-40, Florida Administrative Code, for the modification of a surface water management system to serve the Project area. The proposed Project will involve the construction of a concrete inlet box with a safety grate, storm sewers, and grass swales. Specifically, the project is intended to solve the drainage problems associated with the "existing depression" south of the boundary line for Lots 7 and 8 on Geiger's property (although Lots 4 through 9 ("area 1") are included within the Project area), and the back yards of Lots 7 and 8. A catch basin is proposed to be located south and on the lot line between Lots 8 and 9, which is expected to drain off the water in the depression area to the modified surface water management system. The inlet box will be placed in the corner between Lots 8 and 9. The collected water in the inlet box will be routed underground through a series of 18-inch storm sewer pipe straight north through a drainage easement between Lots 8 and 9 to Welby Court. The underground pipe ties into an existing pipe in front of Lot 9 on the street, then runs east along the Welby Court right-of-way and then north between Lots 19 and 20, and eventually north into a large permitted retention pond, located to the north of the Subdivision which will handle the stormwater. Driscoll's Alleged Drainage Problem There is another distinct drainage area, i.e., "area 2," which includes Geiger's property and the southern portions of Lots 13 and 14, where water drains from south to north into a roadside ditch to Geiger Cemetery Road ("area 3"), which runs south to north and east of Lots 14 and 15. During a September 2001 tropical storm, there was standing water on Geiger's driveway, directly south of Lots 13 and 14, which was present for more than 3 days. This was referred to by Mr. Barrett as a "small drainage problem that could easily be corrected." On the other hand, Geiger says that there is standing water on his driveway, south of Lots 13 and 14, "all the time." This caused Geiger to move his driveway "50 or 60 feet" south. According to Geiger, the berm, which runs across Lots 10 through 14, should be lowered and the backyards reconfigured. But this would be quite disturbing to the neighbors. Therefore, Geiger recommends the placement of drains south of Lots 13 and 14, which would direct the water out to the ditch at Geiger Cemetery Road and away from Driscoll's Lot 14. The modified Permit is not intended to solve this problem, although Driscoll wants this problem fixed. It is not necessary to resolve Driscoll's issue regarding whether there is a drainage problem in and around Driscoll's lot. The two drainage areas 1 and 2 discussed herein are not connected, although they are close in proximity. The solution to the first problem has no impact on the second, and there is no cited statutory or rule requirement that both issues must be addressed in this Permit application. This is Driscoll's quandary. Compliance with Rules 40D-4.301 and 40D-4.302, Florida Administrative Code The Project will not impact wetlands or surface waters. The Project will not adversely impact the value of functions provided to fish and wildlife, and listed species, including aquatic and wetland-dependent species, by wetlands or other surface waters and other water-related resources. The Project will not adversely impact the quality of receiving waters such that the water quality standards will be violated. The Project will not cause adverse secondary impacts to the water resources. The Project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section 373.042, Florida Statutes. The Project will not cause adverse impacts to a work of the District. The Project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. The Project will be conducted by an entity with financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. The Project will comply with any applicable special basin or geographic area criteria established pursuant to Chapter 40D, Florida Administrative Code, by the District. The Project will not adversely affect the public health, safety, or welfare. The Project will not adversely impact the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The Project will not adversely affect navigation. The Project will not cause harmful erosion or shoaling. The Project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the Project. The Project will not adversely affect significant historical and archeological resources. The Project will not cause unacceptable cumulative impacts upon wetlands and other surface waters. The Project area is less than 100 acres. The Project does not require dredging or filling of wetlands, or construction of boat slips. The Project is not contrary to the public interest. The Project will not cause adverse water quantity impacts to receiving waters and adjacent lands, and will not adversely affect or impact the property of others, including Driscoll's property, Lot 14. "Area 1," between Lots 4 and 9, is a separate drainage area, and the water from this area does not drain to Lot 14. Driscoll's property is not within the Project area, and the Project was not intended to resolve his alleged drainage problem. The Project will not cause adverse flooding to on-site or off-site property. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Rather, the project is expected to improve the conveyance of water and drainage for "area 1" and the Project area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order issuing Management and Storage of Surface Water General Construction Permit No. 49005837.017. DONE AND ENTERED this 24th day of October, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2001.
