IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
ST. JOHNS RIVER WATER MANAGEMENT DISTRICT AND CEDAR ISLAND HOMEOWNERS’ ASSOCIATION OF FLAGLER COUNTY, INC.,
Petitioners,
v. Case No. 5D22-2426 LT Case Nos. 21-3391 2021-33
EDWARD J. CECE AND ANNA M. CECE,
Respondents.
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Opinion filed August 11, 2023
Petition for Review of Nonfinal Administrative Action, A Case of Original Jurisdiction.
Jessica P. Quiggle and Steven J. Kahn, of, for Petitioner, St. Johns River Water Management District.
Jay W. Livingston, of Livingston & Sword, P.A., Palm Coast, for Petitioner, Cedar Island Homeowners’ Association of Flagler County, Inc.
Edward J. Cece and Anna M. Cece, Flagler Beach, pro se. EDWARDS, C.J.,
On Motion for Written Opinion
We previously denied the Joint Petition for Review of Non-Final
Agency Action filed by Petitioner, St. Johns River Water Management District
(“the District”), and Petitioner, Cedar Island Homeowners’ Association of
Flagler County, Inc. (“the HOA”; while “the development” or “Cedar Island”
refers to the subdivision the HOA controls) relating to the Administrative Law
Judge’s (“ALJ”) Order Following Remand dated September 9, 2022. The
underlying case dealt with a stormwater management system permit, the
Dash 9 Permit, 1 sought by the HOA from the District, which would increase
the permissible allowable impervious surface area, 2 within the development
1 The development’s stormwater management system was originally authorized by the District’s Permit 70686-1 in 2001. Subsequent permits have been issued by the District to transfer ownership of the stormwater management system to another developer and ultimately to the HOA. Each amended permit bears the same first five digits, and only the digit after the dash changes, hence the reference to Permit 70686-4 as the Dash 4 Permit, the fourth amended permit, which was issued in 2005 and transferred the operation and maintenance of the stormwater management system to the HOA. The Dash 9 Permit (Permit 70686-9) would be the ninth permit for this system and it would amend the Dash 4 Permit if granted. 2 Impervious surfaces are artificial surfaces that water cannot naturally percolate through or penetrate. Concrete sidewalks and patios, asphalt paved roads, metal, and roofing shingles are examples of impervious surfaces. Water striking an impervious surface will run off, potentially causing damage such as flooding or pollution if not properly managed.
2 to 44.28% from the originally permitted 38.06%. We grant the District’s
motion for a written opinion, but we still deny the petition for the reasons set
forth below.
Development Status of Cedar Island
Cedar Island was developed as a 32-lot residential subdivision. As of
December 2021, shortly before the underlying February 2022 formal
administrative hearing, 18 homes had been fully constructed, three were
under construction, and 11 lots were undeveloped. Some lot owners of
Cedar Island were concerned that continued development and building in the
subdivision would increase the impervious surface area beyond what the
stormwater system could manage and for which it had been permitted.
Those owners worried that continued development might result in flooding
within the subdivision among other problems.
Cedar Island’s Stormwater Management System
The development’s stormwater management system consists of two
interconnected, wet detention ponds (A and B) together with a series of 25-
foot-wide vegetative natural buffers (“VNB”) located within a conservation
easement running along the rear of many lots in the development. The
Increasing the amount of impervious surfaces through continued development of the subdivision will increase the volume of stormwater runoff that must be handled by Cedar Island’s stormwater management system.
3 detention ponds perform two functions: treatment and storage of stormwater
runoff. A simplified explanation of treatment is that the longer dirty
stormwater remains in one of the detention ponds, the cleaner it gets, as
particulates and sediments suspended in the water tend to descend to and
remain near or on the bottom of the pond.
The ponds also store water to avert flooding, a direct function of their
volume. Once the ponds are full, they begin releasing water in a desirable
direction through an opening at the upper edge of the pond called a weir.
The effective storage volume of each detention pond is determined by its
dimensions, including its depth, and by the height at which the weir is located
together with the size of the weir. All things being equal, the lower the
elevation of the weir, the sooner water will be released, while the wider the
opening of the weir, the greater flow of water will be released. The treatment
and storage functions of the ponds work together to limit pollution and
flooding caused by stormwater running off impervious surfaces within the
development.
Dash 9 Permit Involved Re-Calculations Only
In its 2020 application for the Dash 9 Permit, the HOA did not say or
propose that it was going to make any physical changes to the structure or
composition of the existing stormwater management system, nor did the
4 District require alterations as a condition for issuance of the permit. Instead,
the HOA simply submitted a recalculation, performed by its retained
engineering expert, purporting to demonstrate that the stormwater system as
designed and permitted in 2001 could effectively manage an increased load
associated with a greater amount and percentage of impervious surface area
which would generally mean more stormwater runoff that wouldn’t soak into
green spaces but would go to the existing stormwater system. The HOA’s
engineering expert did not base any of his calculations on the existing
system.
What Did They Know, and When Did They Know It?
As part of its application for the Dash 9 Permit, the HOA submitted
certain as-built plans created in 2002 when Cedar Island’s stormwater
management system was actually constructed. Those as-built plans
demonstrated that the stormwater management system, as actually
constructed, deviated in several significant ways from the originally permitted
design. For example, the detention ponds were considerably shallower than
designed. Pond A was constructed to a depth between -4.2 to -4.7 feet,
instead of the designed -6 feet. Pond B was constructed to a depth of -4.3
feet instead of the designed -8 feet. The crested elevation of the weir was
constructed several inches lower than designed and the weir itself was
5 constructed to a width of only 24 feet instead of 40 feet as set forth in the
design of the originally permitted system. These as-built deviations,
individually and in combination, decrease the amount of stormwater which
the development’s stormwater management system could effectively handle,
compared to the system as it was designed and originally permitted in 2001.
No current survey of the components of the stormwater management system
was provided by anybody. Inexplicably, the HOA’s expert testified that he
was unaware of any differences between the current system and the as-
designed system. All his calculations were based solely on the non-existent,
as-designed stormwater management system. The HOA possessed the as-
built plans all along; thus, the construction shortfalls cannot be considered a
surprise to the HOA or the District as though it happened to come up
sometime late in the process.
Additionally, in connection with the HOA’s application for the Dash 9
Permit, the District conducted an inspection of Cedar Island’s existing
stormwater management system and found several compliance issues, such
as (1) accumulation of sediment in both detention ponds; (2) erosion of the
top of the berm elevation for both ponds; and (3) numerous areas where the
series of 25-foot wide VNBs had been cleared or modified, which reduced
their performance. The District considered those three items to be curable
6 by maintenance-type actions. The District noted that the HOA could
undertake compliance with the maintenance issues on a parallel basis and
time frame with applying for the increased percentage of impervious
surfaces. The District’s Technical Staff also noted that some of the homes
included an impervious footprint larger than accounted for in the original
design. Thus, the HOA and District knew well before the administrative
hearing that the existing system and the as-designed system were
remarkably different in many structural and functional regards.
Objections to Issuance of the Dash 9 Permit
Two Cedar Island owners opposed issuance of the Dash 9 Permit
based primarily on their concern that continued development could
overwhelm the development’s stormwater management system and result in
problems. They requested an administrative hearing to formally contest the
application and issuance of the permit. Another owner later intervened,
joining the opposition to issuance of the Dash 9 Permit.
During the ensuing administrative hearing conducted by a duly
appointed ALJ from the Department of Administrative Hearings, the HOA
presented the testimony of its expert who performed calculations of what the
as-designed stormwater system could theoretically manage and concluded
that it would function properly even if the impervious surface area percentage
7 within the development was increased to 44.28% from the originally
permitted 38.06%. The HOA’s expert had not based his calculations on the
stormwater management system that currently, actually existed in Cedar
Island nor had he considered the deviations from the system’s design noted
in the 2002 as-built plans. The objecting homeowners presented the
testimony of their engineering expert who opined that one could not
accurately calculate what water load and what percentage of impervious
surfaces the Cedar Island stormwater system could handle unless the
system’s current status and the deviations from design were considered.
Why Ignore the Obvious?
The evidence introduced at trial demonstrated that Cedar Island’s
existing stormwater management system was smaller than designed and
originally permitted. That smaller system was already handling a larger load
at that stage of development than anticipated, and it needed maintenance of
all its features. Nobody provided calculations as to the ability of Cedar
Island’s current system to manage the existing stormwater runoff, nor did
anybody provide calculations as to whether the current system could
manage the proposed, increased load associated with the increased
percentage of impervious surface areas.
8 In order to obtain the Dash 9 Permit, the HOA was required to provide
“reasonable assurance” that the stormwater management system would
satisfy the applicable criteria set forth in rule 62-330.301 and rule 62.330-
302 of the Florida Administrative Code, and Volumes I and II of the
Environmental Resource Permit Applicant’s Handbook. “Reasonable
assurance” has been defined as “a substantial likelihood that the project will
be successfully implemented.” Metro. Dade Cty. v. Coscan Fla., Inc., 609
So. 2d 644, 648 (Fla. 3d DCA 1992). Reasonable assurance does not call
for absolute guarantees, nor can proof of reasonable assurance be defeated
solely by speculation or subjective concerns. FINR II, Inc. v. CF Indus., Inc.,
Case No. 11-6495 (Fla. DOAH Apr. 30, 2012; Fla. DEP June 8, 2012).
Following the conclusion of the formal administrative hearing, the
parties submitted proposed recommended orders and on May 2, 2022, the
ALJ issued a recommended order.
ALJ Recommends the District Deny the Dash 9 Permit
Ultimately, the ALJ agreed with the objecting homeowners, finding that
the HOA had not carried its burden of providing “reasonable assurance” that
its proposal would comply with applicable rules. The ALJ cited to rule 62-
330.301(1)(b), Florida Administrative Code, which requires that construction,
operation, and maintenance of the project will not cause adverse flooding to
9 on-site or off-site property. The ALJ also cited to rule 62-330.301(1)(c),
which requires that there be no “adverse impacts to existing surface water
storage and conveyance capabilities.” Although the HOA’s expert testified
that in his opinion there would be no such adverse consequences, the ALJ
considered, but rejected those opinions due to “deficiencies in the modeling.”
The HOA’s Dash 9 application was based on theoretical calculations of a
system that did not exist at the time of the hearing, that had never existed,
and that was not being proposed as new or modified construction now by the
HOA. While the ALJ acknowledged the District’s argument that the HOA
could bring the system into compliance, it also noted that the HOA “never
expressed any definitive intent that it would bring the system to its design
specifications.” Further, the ALJ stated in the recommended order that it was
the responsibility of the applicant, not the District, to provide the requisite
reasonable assurances.
Post-Hearing Proceedings
The parties filed exceptions to portions of the ALJ’s recommended
order which the District considered and ruled upon in its Final Order and
Order of Remand. In that order, the District took exception to the ALJ’s
conclusion that calculations regarding the stormwater management system
must be modeled based on its current condition, rather than the proposed
10 condition. The District and the HOA asserted that the ALJ improperly applied
the analysis called for under rule 62-330.301(1)(a), (b) and (c) and that rule
62-330.302 was not at issue in this case.
To summarize the District’s lengthy argument on this point, it noted that
if there were issues of non-compliance or violations of the existing Dash 4
Permit, one should consider whether the proposed modifications would
resolve those problems. However, the only modification proposed here was
a new set of calculations. There was no proposal by the HOA to change the
physical condition of any part of the existing system. There was no
suggestion that the HOA had any intention of revising the as-built, non-
compliant existing system so as to resemble the non-existent, as-designed
system that its expert relied upon. As already noted, the HOA’s expert never
performed any calculations to determine if the current system could handle
either the current or the proposed increased runoff load. A computer with
software is no substitute for excavation equipment when it comes to making
ponds that were too shallow 20 years ago—before being silted in—deep
enough to comply with the original design that was permitted.
The District’s order remanded the case to the ALJ, directing it to make
findings of fact and conclusions of law based on the “proposed” project rather
than on the “existing” system. In other words, the District remanded for the
11 ALJ to proceed on the assumption that the stormwater management system
in question was the one described in the 2001 design plan that was originally
permitted. The District stated that with any permit application, you don’t look
at the current condition because typically the application is for a “proposed
system” that is going to be built or the physical modification of an existing
system. Here, there was no such “proposed system.”
The District’s remand order included a hypothetical situation in which
an applicant’s current system was in place and was independently
permittable, despite the fact that the current system, as built, did not comply
with the design submitted and originally permitted. In its hypothetical, the
District bemoans that this hypothetical applicant would have to deconstruct
its existing, desirable stormwater system, that was demonstrated to be
permittable, just to comply with the original permit. Of course, that
hypothetical situation has nothing to do with this case, because the HOA
never attempted to demonstrate that its current system, as-built rather than
as-designed, would be eligible for permitting. The HOA’s expert prepared
no calculations as to whether Cedar Island’s existing system would be
permittable. Thus, the District’s hypothetical fact pattern underscores why
the Dash 9 Permit should be denied here as there were no reasonable
12 assurances of any existing or proposed system that was going to be
constructed at Cedar Island that would be permittable.
ALJ’s Ruling on Remand
The ALJ issued an order following remand in which the remand order
was acknowledged, but the ALJ declined to accept the District’s premise that
the application for the Dash 9 Permit was to be considered as though the
non-existent, never-existing system designed in 2001 was in place. The ALJ
further rejected the District’s directive that the ALJ consider the application
as though the 2001 as-designed system would be put in place at some
indeterminate time, because the HOA had not proposed to do so. The HOA
was just doing a numbers submission of recalculations based on the as-
designed system, not the as-built, much less the current system. Thus, the
ALJ did not reject the remand; however, there was no “proposed project”
which could be analyzed in accordance with the remand order.
Current Appellate Review
The District and HOA sought appellate review from this Court. Section
120.68(1)(b), Florida Statutes (2022), provides:
A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy.
13 The scope of appellate review under that provision is “‘analogous to, and no
broader than the right of review by common law certiorari.’” CNL Resort
Hotel, L.P. v. City of Doral, 991 So. 2d 417, 420 (Fla. 3d DCA 2008) (quoting
Fla. Dep’t of Fin. Servs. v. Fuggett, 946 So. 2d 80, 81 (Fla. 1st DCA 2006)).
“On certiorari review, a petitioner must demonstrate that the lower court
‘departed from the essential requirements of the law, thereby causing
irreparable injury which cannot be adequately remedied on appeal following
final judgment.’” Id. (quoting Belair v. Drew, 770 So. 2d 1164, 1166 (Fla.
2000)). If a decision following remand by an ALJ leaves the parties at an
impasse, the appellate court must resolve the issue because there is no
other remedy. See Ag. for Health Care Admin. v. Mount Sinai Med. Ctr. of
Greater Miami, 690 So. 2d 689, 693 (Benton, J., concurring) (“With the
Administrative Law Judge (ALJ) within the Division of Administrative
Hearings (DOAH) and the Agency for Health Care Administration (AHCA) at
an impasse, the litigants have no other forum.”).
The District and the HOA assert that this Court has jurisdiction because
the Agency cannot issue a final order on whether to issue the Dash 9 Permit,
given that the ALJ’s Second Order does not make the additional factual
findings requested by the District. At issue is whether the ALJ’s Second
Order departs from the essential requirements of the law resulting in
14 irreparable harm in the form of a “stalemate” that leaves the parties at an
impasse, as alleged by the District and the HOA.
No Departure from the Essential Requirements of Law
The ALJ, in the initial recommended order and the order following
remand, was required to base findings of fact and conclusions of law on
competent, substantial evidence. In both orders, the ALJ determined that
Cedar Island had not proved that the existing stormwater management
system met the requirements for issuance of the Dash 9 Permit. The District
acknowledged in its remand order that the ALJ had made those findings and
they were supported by competent, substantial evidence.
The permit application that the District wants the ALJ to reconsider
simply does not exist. The District’s remand order to the ALJ and its
arguments before this Court assume one of two things: (1) that the HOA has
proposed in its Dash 9 Permit application to construct or modify its existing
system to bring it into compliance with the original design and original permit,
or (2) that Cedar Island’s exiting stormwater management system can be
permitted without change. But neither circumstance exists. The HOA did not
propose in its application to bring the existing system into compliance with
the original design or to construct an otherwise permittable system. Thus,
there simply was no “proposed system” for the ALJ to consider as an
15 alternative to Cedar Island’s existing system. The HOA included its as-built
plans which demonstrated beyond dispute that the existing system did not
replicate the system as designed and the HOA knew it. Accordingly, there
was no departure from the essential requirements of the law when the ALJ
did not make findings of fact regarding any “proposed system” and concluded
that the HOA, which offered no evidence about its current system, had
neither proposed any construction nor provided reasonable assurance that
the existing system could handle an increased percentage of impervious
surfaces.
No Stalemate and No Irreparable Harm
The District and HOA argue that unless we remand the matter to the
ALJ with instructions to make the findings of fact relating to the non-existent
“proposed system,” the District will be unable to issue a final order. That is
not correct. As the record stands now with the findings of the ALJ, the District
can enter its final order either granting or denying the HOA’s Dash 9 Permit.
What the District cannot do in the proceeding before this Court is to have the
case remanded for the ALJ to consider an application in a form and with
information that was never submitted and to render findings of fact and
conclusions of law on evidence that was not offered during the formal
administrative hearing.
16 The HOA has argued that the matter could be remanded for additional
presentation of evidence regarding whether its existing stormwater
management system can effectively handle not only the current stormwater
load, but the increased load that would result by increasing the percentage
of impervious surfaces. Overlooking the fact that the HOA did not make that
proposal in its application nor in the underlying case, that would require
reopening the case with additional evidence presented by the HOA, the
District, and the objecting homeowners. It would require further hearings, a
further recommended order from the ALJ, further exceptions from the
parties, and perhaps would cumulate in a final order from the District which
would still be subject to an appeal. That untenable situation was perfectly
described as “endless litigation” which the First District observed was not the
intent of the Administrative Procedures Act. See Fla. Dep’t of Transp. v.
J.W.C. Co., 396 So. 2d 778, 784 (Fla. 1st DCA 1981). The HOA here made
the choice to offer recalculations only and has never proposed to either bring
its existing system into compliance with the original design or offer
reasonable assurance that its current system is permittable.
Conclusion
Accordingly, we deny the District and the HOA’s petition, and remand
to the District for entry of a final order either issuing or denying the HOA’s
17 application for the Dash 9 Permit, which Agency decision can then be
appealed if the losing parties choose to do so.
MOTION GRANTED, PETITION DENIED; REMANDED TO THE AGENCY WITH INSTRUCTIONS.
LAMBERT and HARRIS, JJ., concur.