Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about March 6, 1984, petitioner applied for a DER permit to construct a marina on state owned submerged land located in Punta Rassa, Lee County, Florida. The original design requested approval to build slips for 54 boats. This design was later modified to conform to suggested modifications made by DER staff. The modification reduced the size of the marina to 30 boat slips. By an Intent to Issue dated April 24, 1985, petitioner was advised that the DER intended to issue the permit with 17 special conditions. Special Condition Number 1 advised petitioner of the Florida law which states that construction on state sovereignty lands may not be commenced prior to receiving from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use. In none of the 17 special conditions, nor in any other portion of the Intent to Issue, was it stated when the permit time would begin to run, or when it would expire. The expiration date of the proposed permit simply was not mentioned. The Intent to Issue did contain a standard "point of entry" notice, advising that a petition for a hearing could be filed and stating that the hearing process was designed to formulate agency action. Having no objection to the DER's Intent to Issue and the conditions thereof, the petitioner determined not to request an administrative hearing with regard to said Intent. On May 17, 1985, the DER issued to petitioner Permit Number 360836415. This permit included 15 general conditions and the same 17 special conditions that were contained in the Intent to Issue. In addition, the permit stated that it would expire on June 1, 1987. The permit was accompanied by a letter. Neither the letter, nor the permit, bore the stamp of the agency clerk or contained language advising petitioner of its right to petition for an administrative hearing or other "point of entry" language. DER never notified petitioner by any document that contained "point of entry" language that the permit time would begin running immediately and would expire on June 1, 1987. In order to obtain a sovereignty land lease from the Trustees of the Internal Improvement Trust Fund, petitioner was required to modify its proposed marina design by reducing the number of boat slips to 14. The Trustees approved the lease on or about July 29, 1986, although the Certification of Board Action attesting the Board's approval of the lease, as well as the sovereignty submerged land lease itself, was not forwarded to the petitioner until March 12, 1987. Due to the modifications required by the Trustees, the petitioner requested DER to modify its permit to reflect the reduction of the project scope. The request represented a minor modification to the permit and was granted by DER by letter dated September 30, 1986. The letter of modification does not suggest that the original expiration date of the permit had been changed. As of June 1, 1987, construction work on the proposed marina had not yet begun. The petitioner's agent relied upon a promulgated rule of the DER and assumed that the permit time would not begin to run on this project until petitioner had obtained consent to use state owned submerged land. DER's Dredge and Fill Application is encompassed in a form which is adopted by reference in Rule 17-1.203(1), Florida Administrative Code. This rule was adopted in 1982 and is still in effect today. A portion of that form, Appendix E, paragraph 3(g), on page 30, states that Where the proposed activity involves the use of state-owned submerged lands, DER shall not issue a permit before approval or consent of use is obtained from DNR, although DER will continue to process the application to the extent possible. (Emphasis supplied.) Except for this rule, DER has no other published instructions to applicants as to when permit times begin to run. Since the effective date of the Warren S. Henderson Wetlands Protection Act (Sections 403.91 - .929, Florida Statutes) in October of 1984, DER has not followed its policy outlined in Form 17-1.203(1), as adopted by rule. This contrary practice is based on DER's interpretation of the Henderson Act's failure to include language which was previously included in Section 253.124, Florida Statutes, to the effect that DER permits do not become effective until all other local, state and federal permits are issued. DER's internal practice that calculates the running of the permit time prior to receiving approval to use state owned submerged land is not the subject of any public notice, memorandum or instructions generally available to the public or permit applicants. DER does not require permittees to provide proof of submerged land consent subsequent to the issuance of the DER permit. Also, DER has no internal mechanism for regularly apprising itself of permits which are soon to expire. DER does process and grant time extensions of permits. Requests for time extensions are made through a simple written request, and DER will generally grant such requests if the subject permit is still valid. If the DER permit has already expired at the time that the request for an extension is made, DER requires a new permit application. In this case, petitioner did not request an extension at any time before June 1, 1987. As noted above, it was the belief of petitioner's agent that the two-year permit term would not begin to run until the required Trustee's consent was secured. It was not until June 23 or 24, 1987, that he learned that DER considered the permit to have expired on June 1, 1987. In July of 1987, petitioner did re-apply for a new permit, but DER had environmental objections to the issuance of a new permit. The petition initiating these proceedings was subsequently filed.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order holding that Permit Number 360836415 does not expire until two years from March 12, 1987, and that appropriate recognition be given to the time which has elapsed due to the pendency of the instant proceeding. Respectfully Submitted and entered this 13th day of January, 1989, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1989. APPENDIX The Proposed findings of fact Submitted by the parties have been carefully considered and are accepted, incorporated and/or Summarized in this Recommended Order, with the following exceptions: Petitioner 7. Rejected as an improper factual finding. Respondent 19. Last three Sentences rejected as contrary to the evidence. 21. Partially rejected due to the existence of Rule 17-1.203(1), Florida Administrative Code. COPIES FURNISHED: Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
Findings Of Fact Based upon the evidence adduced at hearing, matters officially recognized, and the record in this case as a whole, the following Findings of Fact are made: The property that was the subject of Monroe County Building Permit No. 9110002601 (hereinafter referred to as the "Property") is an 18.85-acre parcel located on No Name Key in unincorporated Monroe County within the Florida Keys Area of Critical State Concern. Since 1985, the Property has been owned by Florida Keys Investment Properties, Inc. (hereinafter referred to as "FKIP"). The Property is the site of a borrow pit occupying 9.65 acres of the Property's surface area. Since the early 1970's, Petitioner, Rudolph Krause & Sons of Florida, Inc., (hereinafter also referred to as "Krause & Sons") has been operating the borrow pit and excavating fill from the Property for sale to the public pursuant to permits issued by the County. Both Krause & Sons and FKIP are owned by Rudolph Krause, his wife, Roseann Krause, and other members of the Krause family. Since 1975, Roseann Krause has assumed primary responsibility for obtaining from the County the permits necessary to perform the excavation work on the Property (hereinafter referred to as the "excavation permits"). Such excavation permits have been issued by the County each year from 1975 to 1991, with the exception of 1988. 1/ Each of these excavation permits contained language indicating that the permit was a renewal of at least one previously issued permit. No excavation permit other than the 1991 permit, Monroe County Building Permit No. 9110002601, has been appealed by the Department. Although the excavation work on the Property has been conducted with the approval, and to the apparent satisfaction, of the County, in 1985 the United States Army Corps of Engineers filed a complaint in federal district court against Mr. and Mrs. Krause, FKIP and Krause & Sons alleging that certain work had been done in the wetlands portion of the Property without the requisite dredge and fill permit and therefore in violation of federal law. Neither the County nor the Department were parties to this federal district court proceeding, although the County, at least, was aware of the proceeding. In September of 1985, the federal district court entered a final consent judgement, the first eight numbered paragraphs of which provided as follows: This Court has jurisdiction of the subject matter of this action and of the parties thereto. The provisions of this Final Judgment shall be binding upon the Defendants; their successors and assigns; and all persons, firms and corporations in active concert or privity with the Defendants who have actual or constructive notice of this Judgment by personal service or otherwise. All references to geographical locations with respect to this dredge and fill/ restoration on No Name Key shall be directed to the attached sketch entitled "Florida Keys Investment Properties, Inc. Restoration Plan." (Exhibit A). Exhibit A is merely an enlarged view of a portion of Exhibit B, which is a jurisdictional determination by Curtis Kruer, dated June 3, 1983. Within 18 months of entry of this Final (Consent) Judgment, the Defendants shall remove all fill material located in the area indicated on Exhibit A (the south side and southern portion of east side of the existing borrow pit) down to the adjacent wetland elevation. All spoil material so removed will be placed on upland areas on site or at the Defendants' option, may be trucked off site. Spoil material may be stockpiled in areas designated as wetlands immediately adjacent to the areas of the borrow pit to be excavated. Defendants shall notify the Big Pine Key regulatory Field Office of the United States Army Corps of Engineers upon commencement and completion of this phase of the earthmoving work. Within three years of the entry of this Final (Consent) Judgment, the Defendants shall be allowed to enlarge the existing borrow pit as shown on Exhibit A to a maximum depth of -60 feet MSL. Within 120 days from completion of the excavation work described in paragraph 5 above or within 40 months after entry of this decree, whichever date comes first, the Defendants, shall complete the creation of the wetland shelf area on the eastern and western sides of the borrow pit (excluding that portion of the pit to be excavated in the uplands, i.e. Section "C" on Exhibit B) by grading the area down to the adjacent natural wetland elevations as shown on Exhibit A. All spoil material will be placed on an upland site or, at Defendants' option, may be temporarily stored on site, and then trucked off site within the period set forth in the first sentence of this paragraph. Defendants agree to conduct the above- described restoration measures in an environmentally-sensitive manner and shall use their best efforts to avoid damage to adjacent wetlands or water areas (other than the borrow pit) during this process. In addition, a low fill berm 6-feet wide and 2- feet high shall be constructed and remain around the immediate edge of the pit as shown in Exhibit A at all times during excavation of the pit. This berm shall be extended around the immediate edge of the pit's final configuration. This allows Defendants to continue excavation of the pit in a northerly direction into the existing uplands shown as "C" on Exhibit B. Defendants are hereby permanently enjoined from conducting any further dredging, filling or construction activities at No Name Key, adjacent to Big Spanish Channel in any wetland or water area, above or below the mean high water line, without the prior issuance of a Department of Army permit. The only exception to this provision is the work described herein. Only that portion of Defendants' property depicted as Section "C" on attached "Sketch of Jurisdictional Determination" (Exhibit "B" hereto) is agreed to be uplands, not subject to Army Corps of Engineers jurisdiction. Mrs. Krause had submitted an application for a renewal excavation permit in February of 1985, prior to the entry of the federal district court's final consent judgment. The application, as originally submitted, did not specify the total amount of fill Krause & Sons expected to excavate during the year. In a letter dated March 12, 1985, that she sent to the County's Building Director, Mrs. Krause acknowledged that she did not include this information in the application. The body of the letter read as follows: I applied for renewal of our excavation (borrow pit on No Name) permit in February. I wish to keep current this permit but at the present time I cannot supply you with any additional information since it is in litigation with the Corps of Engineers. As soon as this litigation is resolved, I will supply you with the needed information as to width, length and depth to be dug as well as total amount of cubic yards. I do not wish this permit to lapse in any way and therefore request that you issue a renewal based upon this information at this time. If you have any questions regarding this information, please do not hesitate to call me. Thank you for your attention to this matter. I certainly appreciate your understanding. The following month, Mrs. Krause supplemented the application she had submitted in February by providing the County with two sketches of the Property which were similar, but not identical, to the one appended to the final consent judgment and identified as Exhibit B. On one of these sketches, she had made the following handwritten notations: "proposed 25,000 yds. 25'x750'x35,'" which notation appeared next to the southwestern edge of the borrow pit; and "uplands to be dug," which notation appeared in the same area on the northerly portion of the Property that is depicted in the final consent judgment's Exhibit B as Section "C" (hereinafter referred to as the "Uplands"). It is apparent from a review of the two sketches that the "proposed 25,000 yds" were to come from an area on the western side of the pit and not from the Uplands. On April 29, 1985, the County issued the excavation permit (Building Permit No. 13289A) for which Mrs. Krause had applied on behalf of Krause & Sons. In issuing this permit, the County used a printed building permit form which contained the following language: THIS PERMIT SHALL ALLOW WORK (AS DEFINED UNDER WORK DESCRIPTION BELOW AND AS SHOWN AND SPECIFIED ON PLANS SUBMITTED AND ON FILE IN THE BUILDING DEPARTMENT OFFICES) TO BE PERFORMED ON THE FOLLOWING PROPERTY BY THE OWNER LISTED: Typed in under "WORK DESCRIPTION" on the form was the following: "Renewal of Excavation Permit, Supplement to 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." Recipients of permits issued on these printed building permit forms are also furnished "permit cards" that they are instructed to post in an appropriate location at the work site. Each "permit card" contains the following advisement: The person accepting this permit shall conform to the terms of the application on file in the office of the Zoning Department of Monroe County and construction shall conform to the requirements of the Monroe County Codes. In or around early 1986, Krause & Sons hired E.I. DuPont De Nemours (hereinafter referred to as "DuPont") to blast, as a preliminary step in the resource extraction process, portions of the Property that had not yet been excavated (hereinafter referred to as the "Unexcavated Areas"), including the entire uplands area referred to as Section "C" in the federal district court's final consent judgment. Thereafter, DuPont, on behalf of Krause & Sons, applied to the County for a permit authorizing such blasting. The requested permit (Building Permit No. 14835A) was issued on February 20, 1986. In issuing Building Permit No. 14835A, the County used the same printed building permit form that it had used in issuing the 1985 excavation permit referenced in paragraph 15 above. It also provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 14835A was simply the following: "Blasters and Users Permit." No further indication was given as to the nature or scope of the work authorized to be performed. Following the issuance of Building Permit No. 14835A on February 26, 1986, Dupont began its blasting of the Unexcavated Areas. The work was completed later that year. Mr. Krause was on site during the blasting and provided assistance to DuPont. In April of 1986, before the completion of the blasting, Mrs. Krause, on behalf of Krause & Sons, sought to renew Building Permit No. 13289A, the excavation permit she had obtained for the Property the previous year. The application she submitted indicated that Krause & Sons proposed to "[e]xcavate approx. 25,000 cu yds." Along with the application, she submitted a copy of the sketch of the Property containing her handwritten notations that she had sent to the County to supplement the previous year's application. The requested permit (Building Permit No. 15276A) was issued on April 30, 1986. In issuing Building Permit No. 15276A, the County used the same printed building permit form that it had used in issuing the blasting permit and the previous year's excavation permit. In addition, it provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 15276A was the following: "Renewal of Excavation Permit- Approximately 25,000 CY FILL Supplement to 13289A, 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." On September 15, 1986, after DuPont had completed its blasting, the County's current land development regulations (hereinafter referred to as the "Regulations") became effective. Section 9.5-231(a) of the Regulations provides that "[n]o structure or land in Monroe County shall hereafter be developed, used or occupied unless expressly authorized in a land use district in this division." Under the Regulations, the Property is in a "Native" or "NA" land use district. 2/ Section 9.5-239 of the Regulations lists the uses that are allowed in "NA" land use districts. "Resource extraction," which is defined in Section 9.5-4 of the Regulations as "the dredging, digging, extraction, mining and quarrying of limerock, sand, gravel or minerals for commercial purposes," is not among the uses listed. "Resource extraction" is permitted as a major conditional use in Industrial land use districts under Section 9.5-249(c)(2) of the Regulations, however. Sections 9.5-431, 9.5-432 and 9.5-433 of the Regulations specifically address the subject of resource extraction. They provide as follows: Section 9.5-431. General. All resource extraction activities in the county shall comply with the provision of this division in order to ensure that such activities do not adversely affect long-term ecological values in the county and that abandoned extraction sites will be restored. Section 9.5-432. Resource extraction standards. All resource extraction activities shall: Be designed so that no area of excavation, storage area for equipment or machinery or other structure or facility is closer than: Two hundred (200) feet to any property line; and Five hundred (500) feet to any residential nonresource extraction related commercial use in existence on the date the permit is issued; Be located on a parcel of at least twenty (20) acres; Be fenced or blocked so as to prevent unauthorized entry into the resource extraction operation through access roads; Will not involve excavation below sixty feet; Will not cause the introduction of saline aquifer waters into fresh water aquifers; Will involve restoration of disturbed areas at the completion of the resource extraction operation in accordance with section 9.5-433, and the implementation of the restoration plan is secured by a surety bond or other guarantee of performance approved by the county; and Operate solely between the hours of 8:00 a.m. and 5:00 p.m. Section 9.5-433. Restoration standards. All parcels of land which are used for resource extraction operations shall be restored as follows: Restoration shall be a continuous process, and each portion of the parcel shall be restored within two (2) years after resource extraction is completed for that portion; Topsoil shall be restored in approximately the same quality and quantity as existed at the time the resource extraction operation was initiated; Any body of water created by the resource extraction operation shall have a graded shoreline with a slope not to exceed one (1) foot vertical to five feet horizontal; All equipment, machinery and structures, except for structures that are usable for recreational purposes or any other use authorized in the area, shall be removed within six (6) months after the resource extraction operation is terminated and restoration is completed; and Reclamation shall to the maximum extent practical result in the reestablishment of the vegetation association which existed prior to the extraction activity. A "nonconforming use," as that term is used in the Regulations, is defined in Section 9.5-4 thereof as "any use lawfully being made of any land, buildings or structure, other than a sign, on the effective date of this chapter or any amendment thereto, rendering such use nonconforming, which does not comply with all of the regulations of this chapter, or any amendment thereto." Section 9.5-143(a) of the Regulations provides that "[n]onconforming uses of land or structures may continue in accordance with the provisions of this section." Among "the provisions of this section" are the following found in subsection (c) thereof: Extensions: Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which the nonconforming uses are located; or Occupancy of additional lands. According to Section 9.5-141 of the Regulations, the purpose of the provisions relating to "nonconforming uses" is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in nonconformities and to bring about their eventual elimination in order to preserve the integrity of this chapter. Section 9.5-113 of the Regulations prescribes the procedure to be followed in the "[r]eview of building permit applications." Subsection (b) of this section provides as follows: If the application and the construction plans and environmental analysis demonstrates compliance with all environmental standards of this chapter and technical, health and safety requirements of the County Code, a site preparation permit shall be issued within thirty (30) days of receipt of a complete application and upon receipt of an improvement guarantee, if a subdivision is involved, under the provisions of section 9.5-85 or a performance bond, in an amount acceptable to the director of planning to ensure completion of the development, if a subdivision is not involved. Section 9.5-115 of the Regulations is entitled "Expiration of building permit." Subsections (a) through (d) of this section provide as follows: A building permit shall automatically expire and become null and void if work authorized by such permit is not commenced within sixty (60) days from the effective date of the permit, or if such work, when commenced, is suspended or abandoned at any time for a period of one hundred twenty (120) consecutive days. The effective date of a building permit authorizing land clearing or which authorizes development as defined in chapter 380, Florida Statutes, shall be as provided in rule 9J-1.03, Florida Administrative Code, as long as the parcel is located within an area of critical state concern. If the work covered by the permit has not commenced or has commenced and been suspended or abandoned, the building official may extend such permit for a single period of sixty (60) days from the date of extension is [sic] made prior to the expiration date of the initial permit. If the work covered by the permit has commenced, is in progress, but has not been completed and in the opinion of the building official and the director of planning, is being carried on progressively in a substantial manner, the permit shall remain in effect until completion of the job. If work has commenced and the permit becomes null and void or expires because of lack of progress or abandonment, a new permit covering the proposed construction shall be obtained before proceeding with the work under regulations in effect at the time the new permit is issued. Section 9.5-115 of the Regulations makes no reference to "renewal" permits. The first excavation permit Krause & Sons received after the effective date of the Regulations (Building Permit No. 17487A) was issued on May 1, 1987. In issuing Building Permit No. 17487A, the County used the same printed building permit form that it had used in issuing the 1986 blasting permit and the 1985 and 1986 excavation permits. In addition, it provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 17487A was the following: "Excavation Pit- RENEWAL- Supplement to Permit #13289A, 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." Typed in under "REMARKS" on Building Permit No. 17487A was the following: APPLICANT MUST APPLY FOR A BLASTING PERMIT IF THIS ACTIVITY IS REQUIRED Issued under the condition that restoration required from Army Corps be completed. Biologist recommends approval as per Monroe County Code. On April 26, 1988, Mrs. Krause, on behalf of Krause & Sons, filed an application to renew Building Permit No. 17487A. Accompanying the application was a sketch of the Property. On the sketch, Mrs. Krause had drawn an arrow pointing to the southern portion of the Uplands. Above the arrow she had written, "proposed to dig approx 19,444 cu yds," and in the area to which the arrow was pointing, she had written, "Approx. 19444 cu yds to be dug." There was a delay in the issuance of the requested permit. On April 4, 1989, the permit (Building Permit No. 8910000731) was finally issued. An application to renew Building Permit No. 8910000731 was filed on April 3, 1990. The requested permit (Building Permit No. 9010000645) was issued on June 21, 1990. The effective date of the permit was August 28, 1990. An application to renew Building Permit No. 9010000645 was filed on April 16, 1991. The requested permit (Building Permit No. 9110002601 and hereinafter also referred to as the "Permit") was issued on July 11, 1991. In the "Remarks" section of the Permit the following was typed: RENEWAL OF PERMIT 90-10000645, 89-10000731 AND 17487A. PLANNING APPROVAL 6-25-91 AG BIOLOGIST RECOMMENDS APPROVAL AS PER MONROE COUNTY CODE. THIS PERMIT DOES NOT AUTHORIZE BLASTING. A SEPARATE PERMIT IS REQUIRED. Neither the application nor the Permit specified the amount of fill to be excavated or where on the Property the excavation was to occur. There was only one area of the Property however, where there was further excavation to be done. This area was the Uplands. Krause & Sons and FKIP had hoped, pursuant to the authorization provided by the permit, to merely remove the already blasted fill material that remained there. 3/ No further blasting was needed. A copy of the Permit was hand delivered to the Department's Key West field office (hereinafter referred to as the "field office") on July 12, 1991. In charge of the field office was Kenneth Metcalf, a Community Program Administrator with the Department. Under his supervision were two planners, a biologist and a secretary. The duties of the field office staff included, but was not limited to, reviewing and commenting upon proposed development activity within the office's territorial jurisdiction, which covered not only unincorporated Monroe County, but the municipalities of Key West, Key Colony Beach and Layton as well. Approximately 25 percent of the staff's time was devoted to the review of building permits issued by Monroe County and the cities of Key West, Key Colony Beach and Layton. The staff reviewed over 10,000 permits a year, of which about 30 to 40 were ultimately appealed by the Department. Given the 45-day time limit for filing an appeal, the staff had approximately four weeks from the date of issuance within which to review each permit and submit its written recommendation and report to Department headquarters in Tallahassee. In conducting its permit review, the staff examined the materials it received from the local government, which typically included the permit itself, the permit application and accompanying site plan, to ascertain if the development authorized by the permit complied with the local government's land development regulations. 4/ Because of time constraints, the staff did not make a practice of contacting applicants and asking them to supply missing information that the staff thought was necessary to demonstrate compliance, although there were occasions that it did request such information from the local government that had issued the permit. In the staff's opinion, the information that it had been provided in connection with Building Permit No. 9110002601 was insufficient to demonstrate that the Permit complied with Monroe County's land development regulations. Along with a copy of the Permit, the staff had an aerial photograph of the Property, taken in 1985, upon which to base its opinion regarding the Permit's compliance with the Regulations. That resource extraction activity had taken place on the Property was apparent from an examination of the photograph. The staff had not been furnished with the permit application, with a site plan of the Property, nor with copies of any other County issued-permits concerning the Property. It had requested these materials from the County, but the County had not provided them. Consistent with its standard operating procedure, the staff had made no effort to obtain any additional information from the Krauses or FKIP. Neither the Krauses nor FKIP provided, or offered to provide, the staff with additional information. As a result, at the time it completed its review of the Permit and rendered its opinion on the Permit's compliance with the Regulations, the staff was unaware of the existence of Building Permit No. 14835A, the "Blasters and Users Permit" that DuPont, on behalf of Krause & Sons, had obtained in February of 1986, and which authorized the blasting of the entire Uplands. Given the information that the staff had in its possession, which reflected that the Property was located in a land use district in which resource extraction activity was not allowed under the Regulations, the staff's conclusion that the Permit was not in compliance with the Regulations was a reasonable one. The Permit did not indicate on its face that the resource extraction activity it authorized qualified as a "nonconforming use" under the provisions of Section 9-5.143 of the Regulations, nor was it apparent from a reading of the Permit, in conjunction with an examination of the 1985 aerial photograph that the staff also had in its possession, that the permitted activity so qualified. Adopting the field staff's recommendation, the Department, on August 26, 1991, filed with the Florida Land and Water Adjudicatory Commission written notice of its appeal of Building Permit No. 9110002601. The Department's notice of appeal was accompanied by a petition in which the Department alleged that the Permit had been issued contrary to the provisions of the County's land development regulations in that it authorized resource extraction activity in a land use district in which such activity, under the Regulations, was not allowed. According to the petition, "[t]here [were] no conditions under which [such activity could] be authorized consistent with the Monroe County land development regulations absent amending the land use district maps [to change the Property's land use designation from NA] to Industrial use and proceeding through the conditional use process," during which the applicability of the resource extraction and restoration standards of Sections 9.5-432 and 9.5-433 of the Regulations would need to be addressed. On November 27, 1991, approximately three months after the Department filed its appeal, the field office staff, in response to a second, post-appeal request it had made, received from the County's assistant building official six index cards reflecting historical permitting activity relating to the Property. None of these cards made reference to Building Permit No. 14835A, the February, 1986, "Blasters and Users Permit." The Department first learned about the existence of this "Blasters and Users Permit" during discussions with the Krauses sometime after it had filed its notice of appeal of Building Permit No. 9110002601 and the accompanying petition. 5/ On December 18, 1991, the Department's notice of appeal and petition were referred to the Division of Administrative Hearings for the assignment of a Hearing Officer. A final evidentiary hearing on the Department's appeal was held on October 13, 1992. Three witnesses, Mr. Krause, Mrs. Krause, and Metcalf, testified at the hearing. The Krauses testified regarding the extent of the blasting activity authorized by Building Permit No. 14835A, a copy of which was offered and received into evidence. A total of 28 other exhibits were admitted into evidence. Following the conclusion of the hearing, the parties filed post- hearing submittals. In their post-hearing submittal, the Krauses did not dispute that resource extraction, the activity authorized by Building Permit No. 9110002601, is a use that, under the Regulations, that is not expressly allowed in the NA land use district in which the Property is located. They argued, however, that the resource extraction activity they were seeking to undertake pursuant to Building Permit No. 9110002601, to wit: the completion of the excavation of the Uplands, should be permitted as a "nonconforming use" under the provisions of Section 9-5.143 of the Regulations, regardless of whether such activity would be allowable under the Regulations' other provisions. The Hearing Officer, in his Recommended Order, agreed with the Krauses, reasoning as follows: A "nonconforming use" that may continue in accordance with the provisions of Section 9-5.143 is "any use lawfully being made of any land, buildings or structure, other than a sign, on the effective date of [Chapter 9.5 of the Monroe County Code], rendering such use nonconforming, which does not comply with all of the regulations of [Chapter 9.5]." September 15, 1986, was the effective date of the Regulations. By that date, the excavation of the Uplands had already begun. The entire area had been blasted as the first step in the excavation process that Respondents now desire to complete. The Department acknowledges in its proposed recommended order that such blasting occurred, but contends that it was not authorized by the blasting permit (Building Permit No. 14835A) that had been obtained prior to the blasting. According to the Department, the "blasting permit cannot be construed as authorizing that extent of blasting but is most reasonably viewed as authorizing blasting [only] of the wetlands on the eastern and western sides of the pit." Having carefully considered the evidence on the matter, including, most significantly, the copy of Building Permit No. 14835A and the accompanying "permit card" which were offered and received into evidence as Respondents' Exhibit 6, as well as the testimony of Mr. and Mrs. Krause, the Hearing Officer has reached a contrary conclusion. The documents that comprise Respondents' Exhibit 6 do not indicate, on their face, that the blasting authorized by the County was to be restricted to any particular area of the Property, much less "the wetlands on the eastern and western sides of the pit;" however, they each contain language suggesting that the extent of the authorization given by the blasting permit may not be determined without reference to the permit application and any plans submitted in connection therewith. No such application materials or copies thereof were in the County's files at the time of hearing, nor were they otherwise readily available to Respondents, who had never been given copies of these application materials to keep for their records. Under such circumstances, it was permissible for Respondents to supplement Respondents' Exhibit 6 with parol evidence to establish the extent of the land area which was subject to the provisions of the blasting permit. See Nahmod v. Nelson, 3 So.2d 162, 164-65 (Fla. 1941)("[u]nquestionably secondary evidence is admissible to prove the contents of a lost writing where proper predicate is laid and where such evidence is otherwise competent and admissible"). The parol evidence offered by Respondents was the testimony of Mr. and Mrs. Krause. The Krauses testified that permission was sought and obtained to blast the entire Uplands. Their testimony on this matter was unrebutted. While neither Mr. or Mrs. Krause actually prepared or submitted the application to gain such permission, given their respective positions with the entity for which the blasting work was done, it appears likely, and therefore the Hearing Officer has found in the absence of any persuasive evidence to the contrary, that their testimony was based upon firsthand knowledge and not speculation or what someone else had told them. In view of the foregoing, the Hearing Officer has credited the Krauses' testimony and taken it into consideration in determining that the blasting of the entire Uplands was authorized by Building Permit No. 14835A. The resource extraction activity that Building Permit No. 9110002601 authorizes, therefore, will not involve the use of any land that was not lawfully being used for that purpose at the time of the effective date of the Regulations. Such activity thus qualifies as a "nonconforming use," within the meaning of Section 9.5-143 of the Regulations, which the Commission should allow to continue, notwithstanding that the Property is in a land use district in which such activity, but for its qualification as a "nonconforming use," would be prohibited. The Hearing Officer noted that, "[i]n engaging in such continued activity, Respondents must comply with the applicable provisions of Sections 9.5-432 (resource extraction standards) and 9.5-433 (restoration standards) of the Regulations [both of which were referenced in the Department's appeal petition], but only to the extent that these provisions do not operate to effectively prevent them from excavating any land that, on the effective date of the Regulations, was being lawfully used for resource extraction activity." The Hearing Officer recommended that, "[i]n the interest of clarity and to avoid any uncertainty regarding the matter, the final order issued by the Florida Land and Water Adjudicatory Commission . . . make specific reference to these requirements [the Krauses] must meet, notwithstanding that [they] would still be required to comply with these requirements even if, like Building Permit No. 9110002601, the order did not contain any such specific reference." On March 11, 1993, the Florida Land and Water Adjudicatory Commission issued a final order adopting the Hearing Officer's Recommended Order. Petitioner was represented by counsel in the appeal proceeding that culminated in the issuance of this final order and it incurred attorney's fees and costs as a result of such representation that it is obligated to pay.
The Issue Should the Department of Revenue grant Petitioner's request for a temporary tax exemption permit and request for refund of sales and use tax which has been paid under protest? See Section 212.08(5)(a) and (b)3a, Florida Statutes.
Findings Of Fact Petitioner opened a new commercial laundry facility in Pompano Beach, Florida, in 1993. Petitioner installed in the new facility machinery and equipment costing approximately $1,400,000.00 for the purposes of cleaning and processing linens used by hospitals in the south Florida area (the "Laundry Equipment"). Petitioner charges a fee to hospitals in the south Florida area for cleaning and processing the hospitals' linens with the Laundry Equipment. The new facilities are additional, not replacement, facilities. The Laundry Equipment: Qualifies as "industrial machinery and equipment", as defined by Section 212.08(5)(b) and (6)(c), Florida Statutes; Was purchased by Petitioner for use in a new business; Processes items of tangible personal property, the hospital's linens, at a fixed location; Was purchased before Petitioner first began its productive operations and delivery was made within 12 months of that date; and Has increased productive output at Petitioner's commercial laundry facility. The equipment included a tunnel washer system, conveyers, feeders/folders, ironers, a boiler, and air compressors. By application dated September 3, 1993, Petitioner applied for a temporary tax exemption permit with respect to the Laundry Equipment which it planned to purchase for use in its new business. Section 212.08(5)(b), Florida Statutes, requires that a taxpayer obtain that permit to receive the exemption. The Department denied Petitioner's application. On August 22, 1994, Petitioner paid to the Department, under protest, the sum of $18,095.36, which represented the tax of $16,773.98, plus interest of $1,321.38, on Petitioner's purchase of the Laundry Equipment. Petitioner timely filed its claim for refund, which the Department denied. Respondent denied Petitioner's request for a temporary tax exemption permit, and Respondent denied Petitioner's refund claim based upon Rule 12A- 1.096, Florida Administrative Code. Petitioner's request for a tax exemption permit and Petitioner's refund claim are based upon the exemption provided in Section 212.08(5)(b), Florida Statutes, which applies to a new (as opposed to an expanding) business.
Recommendation In consideration of the facts found and conclusions of law reached, it is, RECOMMENDED: That a final order be entered which denies the request for a tax exemption permit and a refund in the amount of $18,095.36. DONE and ENTERED this 13th day of November, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 13th day of November, 1995. COPIES FURNISHED: Robert A. Pierce, Esquire Emily S. Waugh, Esquire MACFARLANE, AUSLEY, FERGUSON & MCMULLEN Post Office Box 391 Tallahassee, FL 32302 James McAuley, Esquire Office of the Attorney General The Capitol-Tax Section Tallahassee, FL 32399 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100
The Issue Whether the finger pier portion of Respondent Raab's dock creates a navigational hazard. The resolution of that issue will determine whether the dock qualifies for an exemption from an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes.
Findings Of Fact DEP has the authority to regulate the construction of docks in jurisdictional wetlands and other waters of the State of Florida and on state submerged lands under Chapters 253, 373, and 403, Florida Statutes, and Chapters 62-330 (which adopts Chapter 40E-4) and 18-21, Florida Administrative Code. The Association is a residential community located in Sewall's Point, Martin County, Florida. All lots within the community abut navigable channels which provide ingress and egress to the ICW. These channels converge so that there is only one channel that connects to the ICW. Most of the residents of the community have large vessels that routinely navigate the channels within the community. At the time of the formal hearing, many of the vessels owned by residents of the community had drafts of four feet and at least two had drafts of five feet. In 1997, Mr. Raab purchased a residence in the Association that is located very close to where the channel meets the ICW. Because of that location, practically all residents of the Association have to pass in front of Mr. Raab's property when going into or returning from the ICW. The property at issue is located at 22 Simara Street, Sewalls Point, Martin County, Florida. The dock at issue in this proceeding is subject to DEP's regulatory authority. When Mr. Raab purchased this property in 1997, there was an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from DEP to demolish the existing marginal dock and replace it with a virtually identical structure. The existence and configuration of the marginal dock is not at issue in this proceeding. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel 36 feet so he could dock his vessel perpendicular to the bulkhead. Mr. Raab's plan also called for the construction of two pilings 12 feet from the end of the finger pier. Mr. Raab had, as of the time of the formal hearing, re-constructed the marginal dock and had constructed the finger pier. 3/ The two additional pilings had not been constructed at the time of the formal hearing. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary. The Association thereafter timely challenged DEP's determination that the finger pier portion of the project (and the two additional pilings) did not require an environmental resource permit. There was a conflict in the evidence as to the functional width of the channel in front of Mr. Raab's property. 4/ Mr. Holly testified on behalf of the Association that the functional width of the channel was 83 feet. Mr. Lidberg, testifying on behalf of Mr. Raab, testified that the functional width was 101 feet. This conflict is resolved by finding that the functional width of the channel in front of the Raab property is 101 feet. 5/ The prevailing winds in the area in front of Mr. Raabb's dock blow into the dock. The depth of the water in the channels is influenced by tides. The principal reason Mr. Raab wants the finger pier is so that he can moor his boat with the bow to the prevailing winds in times of high winds. At the time of the formal hearing, Mr. Raab owned a vessel with an overall length of 44 feet. There was a conflict in the evidence as to whether Mr. Raab's finger pier and the two pilings that have been authorized, but not constructed, constitute a hazard to navigation. 6/ Based on the totality of the evidence, it is found that these structures do not create a navigational hazard. 7/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Association's challenge to the determination that Mr. Raab's project qualifies for an exemption from an environmental resource permit. DONE AND ENTERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of March, 2000.
The Issue Whether Petitioner’s application for a variance to permit an onsite treatment and disposal system should be approved.
Findings Of Fact The lot of land for which the Bank seeks a variance for an onsite sewage treatment and disposal system is located at 341 Compass Lake Drive in Jackson County, Florida. The lot is approximately 40 feet wide and 300 feet deep, with approximately 40 feet of frontage on Compass Lake. Prior to its severance in 2010, the lot was part of a larger parcel of land with an address of 343 Compass Drive in Jackson County. The larger parcel was owned by Charles Paulk and had substantial improvements consisting of a house, boathouse, and dock. In 2004, Mr. Paulk borrowed money from the Bank and gave the Bank a mortgage lien on the entire larger parcel to secure the loan. At some point, a survey was prepared which subdivided the larger parcel into two lots -- the first containing the substantial improvements, and the other consisting of the approximately 40-foot by 300-foot lot at issue, which is .28 acres in size, with no improvements. There is no indication that the survey was ever recorded in the public records. Later, in 2010, Mr. Paulk decided to sell the lot with the substantial improvements for $330,000. Because the Bank had a lien on the entire larger parcel, Mr. Paulk requested that the Bank release its lien on the lot with the substantial improvements. The Bank agreed to release its lien on the lot with substantial improvements and, after receiving what the Bank felt was a “sufficient pay-down” on the loan, shifted its lien to the smaller, unimproved lot that is at issue in this case. The sale and release of lien transaction “substantially reduced the loan versus the collateral value” that the Bank previously had. According to the Bank’s Senior Vice President, James Goodson, after the sale transaction, there was “not a lot of money left on the loan ” Mr. Goodson testified that, at the time that the Bank agreed to release its lien on the substantially improved lot and shift its lien to the remaining unimproved lot, it was unaware that a variance would be required for an onsite sewage treatment and disposal system (septic tank) on the unimproved lot. The facts as outlined above, however, demonstrate that the Bank was an active participant and beneficiary of the transaction that ultimately resulted in the creation of the two lots, one of which was the approximately 40-foot by 300-foot unimproved lot at issue in this case. In 2012, Mr. Paulk experienced financial problems and was having difficulty paying back the loan to the Bank secured by the unimproved lot. Because it was easier than foreclosure, the Bank agreed to take a deed to the unimproved lot in lieu of foreclosure.1/ At the time of the Bank’s release of lien in 2010, as well as at the time of the deed in lieu of foreclosure, the 40- foot by 300-foot lot size of the unimproved lot was too small to meet the statutory requirements for a septic permit. Mr. Goodson testified that, at the time that the Bank accepted the deed in lieu of foreclosure, the Bank was aware that the lot was too small and would need a variance for a septic tank. He did not explain, however, why the Bank had earlier been unaware of the need for a variance when it agreed to release its lien on the substantially improved lot in 2010. After the Bank acquired title to the unimproved lot, a third party offered to purchase it on the condition that the Bank could obtain a permit. The Bank went to Jackson County to request a permit, knowing that its request would be denied because the lot size was insufficient for a septic tank without a variance. Nevertheless, the Bank believed that it would qualify for a variance on hardship grounds because it did not “intentionally” create the hardship. The Bank commenced the permitting process by submitting an application with the Jackson County Health Department on October 4, 2012. The County denied the application on the grounds that the lot was deficient in width and total area. Next, the Bank submitted a request to the Department for a variance. The request was considered by the Department’s Variance Review and Advisory Committee (Committee) on December 6, 2012. The Committee has only recommending authority to the State Health Officer. In a four to three vote, the Committee recommended approval of a variance. The members voting against a recommendation for approval were representatives of the State Health Office, the Department of Environmental Protection, and the County Health Department. Eight objections from adjacent property owners were provided to the Committee’s review and consideration. After considering the facts, including the decision of the County Health Department, objections filed by adjacent property owners, actions taken by the Bank, and the recommendations of all the members of the Committee, Gerald Briggs, Bureau Chief for Onsite Sewage Programs for the Department of Health, made the Department’s preliminary decision that the Bank’s variance request should be denied, concluding, among other things, that “[a]ny perceived hardship that [the Bank] might experience as a result of the obligation to meet established standards comes about as a direct result of your own proposed action.” Likewise, considering the facts and evidence as presented in this case, the undersigned finds, as a matter of fact, that the Bank intentionally participated in and benefitted from the transaction that resulted in the hardship posed by the small lot size that it now owns and for which it seeks a variance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying SunSouth Bank’s application for a variance. DONE AND ENTERED this 21st day of March, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 21st day of March, 2014.
The Issue The issues remaining in this case are: (1) whether New River Solid Waste Association (NRSWA) requested that its permitted bioreactor landfill system be included as part of its application for renewal of its operating permit for the New River Regional Landfill in Union County, Florida; (2) whether Petitioner participated in this proceeding for an improper purpose under Section 120.595(1); and (3) whether the prevailing party is entitled to an award of attorney fees and costs under Section 403.412(2)(f). (Citations to sections are to the 2000 codification of Florida Statutes. Rule citations are to the current Florida Administrative Code.)
Findings Of Fact NRSWA is comprised of Union, Baker, and Bradford Counties and was formed to share the costs associated with solid waste disposal. NRSWA owns and operates the New River Regional Landfill in Union County. The landfill was initially permitted in 1990 and was expanded and the original permit renewed in 1995 for an additional five years, expiring on November 6, 2000. The landfill now has a permit for disposal of Class I waste in three cells, with a fourth under design; it also has a permit for disposal of Class III waste and a permit for a waste tire collection center. Cells 1 and 2 were retired, and in July 1999 NRSWA applied to modify its operating permit (Permit No. SC63-271982) to allow construction and operation of a bioreactor landfill system on retired cells 1 and 2. On June 26, 2000, DEP gave notice of its intent to issue NRSWA a permit modification to construct and operate the bioreactor system. On July 11, 2000, Petitioner, Paul Still, timely filed a Petition for Administrative Hearing to challenge DEP's proposed agency action. On August 15, 2000, DEP referred the matter to DOAH, which gave it DOAH Case No. 00-3448 and assigned an ALJ. On August 28, 2000, NRSWA filed a Motion to Dismiss the Petition for Administrative Hearing for lack of standing. On September 8, 2000, NRSWA applied to DEP for renewal of Permit No. SC63-271982 for continued operation of its landfill. The renewal application requested that all landfill permits be consolidated into the renewal permit as a single operating permit. However, at the time Case No. 00-3448 on the bioreactor modification application remained pending, and the renewal application did not specify the bioreactor modification as part of the renewal application. Frank Darabi, NRSWA's professional engineer, signed a transmittal letter on September 7, 2000; arranged for delivery of the application to DEP's Northeast District office in Jacksonville, Florida; and thought it was delivered and left there after-hours on September 7, 2000. But NRSWA did not prove that the renewal application was submitted to DEP before September 8, 2000, when it was filed-stamped. The renewal application was submitted on DEP FORM 62- 701.900(1). The application was signed on the behalf of NRSWA by Darrell O'Neal, its Executive Director. By this signature on the form, O'Neal swore that all statements in the application were true, correct, and complete and agreed on behalf of NRSWA to comply with applicable statutes and DEP rules. The application was also signed, sealed and dated by Frank Darabi, as professional engineer. Darabi's signature certified that all engineering features in the application were "designed/examined by me and found to conform to engineering principals [sic] applicable to such facilities." On September 18, 2000, the ALJ in Case No. 00-3448 entered an Order Granting Motion to Dismiss with Leave to Amend. The ALJ held that the allegations in the Petition for Administrative Hearing failed to demonstrate that the Petitioner "ha[d] sustained, or [wa]s in the immediate danger of sustaining some direct injury as a result of the proposed agency action." The ALJ granted Petitioner leave to amend as to standing. On September 26, 2000, Petitioner filed an Amended Petition for Administrative Hearing in Case No. 00-3448, which included new allegations in an attempt to address the question of Petitioner's standing. On October 5, 2000, NRSWA filed a Motion to Dismiss the Amended Petition for Administrative Hearing. NRSWA asserted that the Amended Petition for Administrative Hearing failed to sufficiently allege Petitioner's standing. On October 6, 2000, DEP issued a Request for Additional Information (RAI) as to the renewal application. The RAI did not ask for any information concerning the pending bioreactor modification application. On October 20, 2000, the ALJ in Case No. 00-3448 granted NRSWA's motion to dismiss Petitioner's amended petition in that case, finding that the amended petition "ha[d] set forth no new allegations sufficient for a presumption of standing to initiate and sustain these proceedings." On November 3, 2000, NRSWA submitted its response to DEP's RAI, which included the statement: Please note the permit modification application for the bioreactor construction and operation, DEP File Number 0013500-004-SC, is currently under review by Department. It is understood that the previously submitted bioreactor information is to be incorporated in the renewed permit. This statement was included after Darabi asked DEP and was told that it would be appropriate to include information about the pending bioreactor modification application in the response to RAI although not asked for in the RAI. NRSWA's response to RAI was signed by Darabi, with a copy to O'Neal. Darabi's signature did not make representations or certifications like those provided for in DEP FORM 62- 701.900(1). However, Darabi had been NRSWA's professional engineer since its inception, had signed numerous application submissions on behalf of NRSWA over the years, and clearly had authorization to submit the response to RAI. DEP entered its Final Order dismissing Case No. 00-3448 on December 4, 2000. On December 12, 2000, DEP issued Permit Number 001-3500004-SC to NRSWA for the bioreactor modification. This permit provided in pertinent part: This modification shall remain in effect as long as the underlying permit, SC63-271982, is in effect. The underlying permit will remain in effect until final agency action is taken on the renewal application of that permit . . . . Petitioner did not appeal the Final Order in Case No. 00-3448. Following review of the additional information submitted by NRSWA on its renewal application, DEP deemed the permit application complete as of November 3, 2000. Additional information was submitted in January 2001, including a request submitted on January 11 that the bioreactor modification part of the renewal permit address specific conditions omitted from the modification permit issued on December 12, 2000. On February 15, 2001, DEP gave notice of intent to renew NRSWA's permit for continued operation of its landfill. DEP's draft permit incorporated specific conditions addressing the construction and operation of the bioreactor system, as well as all other permitted landfill activities. The evidence is clear that, since November 3, 2000, NRSWA consistently has taken the position that the bioreactor system modification was included in its renewal application. Alleged Improper Purpose The evidence did not prove that Petitioner participated in this proceeding for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of NRSWA's permit renewal applications. To the contrary, the evidence was that Petitioner participated in this proceeding in an attempt to raise justifiable issues as to why NRSWA's permit renewal application, with bioreactor landfill system in cells 1 and 2, should not be granted. Petitioner failed in his attempts in large part because several issues he wanted to litigate were outside the scope of a permit renewal application and because he had no expert testimony on issues he was allowed to raise. At that point, Petitioner announced he was dropping all issues but one. The sole remaining issue after Petitioner's announcement might be viewed as a procedural technicality bordering on being frivolous. But it arose out of the complex (as DEP described it, "muddled") procedural history. Under these circumstances, it is not found that Petitioner's continued litigation of his sole remaining issue was frivolous.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: (1) dismissing the verified Petition for Administrative Hearing; (2) granting NRSWA's application to renew Permit No. SC63-271982, as set forth in the draft permit--i.e., for merger and continued operation of all existing landfill operations, including NRSWA's Class III waste disposal permit, its permit for a waste tire collection center, and its permit for the bioreactor landfill system on cells 1 and 2; and (3) denying NRSWA's request for attorney fees and costs from Petitioner under Section 120.595(1) and Section 403.312(2)(f). Jurisdiction is reserved to enter a final order on NRSWA's Motion for Attorney Fees and Costs under Section 120.569(2)(e), to the extent that it has been preserved. DONE AND ENTERED this 7th day of August, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2001. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Paul Still Route 4 Box 1297H Starke, Florida 32091 Jonathan F. Wershow, Esquire Post Office Box 1260 Gainesville, Florida 32602 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
Findings Of Fact Application for consumptive use permit No. 75-00225 is a request for an existing use to be withdrawn from the Floridan Aquifer from two different wells. These two wells are located in the Hillsborough Basin and in Polk County. The property contiguous to the wells encompasses approximately 80.9 acres. The water is to be used for citrus processing and disposed of off site. The permit seeks, for average daily withdrawal, 2.98 million gallons per day for one well and 1.566 million gallons per day for the other well for a total average daily withdrawal of 3.864 million gallons per day. For maximum daily withdrawal the permit seeks 4.096 million gallons per day for one well and 2.792 million gallons per day for the other well for a total maximum daily withdrawal of 6.888 million gallons per day. The amount of water sought to be consumptively used by this application greatly exceeds the water crop of the subject lands owned by applicant. Mr. John C. Jennings and Mr. William Sunderland, owners of property adjacent to the Kraft property, appeared in their own behalf and stated that they felt that their wells were being hurt because of the large quantities of water pumped by Kraft. They did not attempt to offer expert testimony nor did they claim to be hydrologists. They did note that each had substantial problems with their wells running out of water.
Recommendation It does not appear that the district has had a reasonable opportunity to examine the objections and comments of Messers. Jennings and Sunderland with regard to the effect of the applied for consumptive use on their property. These objections were apparently raised for the first time at the hearing. As noted in paragraph 6, if the wells of Messers. Jennings and Sunderland are substantially affected in an adverse manner by applicant's use of such large quantities of water, such a use would not seem to be a reasonable, beneficial use as is required for permit unless further conditions were placed upon the permit. Therefore, it is recommended that the Southwest Florida Water Management District staff further investigate the effect of the applied for consumptive use on the wells located on the property of John C. Jennings and William Sunderland prior to the Board taking formal action on this application. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. 0. Box 457 Brooksville, Florida 33512 Douglas T. Moring, Esquire Kraftco Corporation Kraftco Court Glenview, Illinois 60025
