SANTA FE PASS, INC., APPELLANT,
v.
STATE DEPARTMENT OF ENVIRONMENTAL REGULATION AND SANTA FE LAKE DWELLERS ASSOCIATION, INC., APPELLEES
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A developer sought a general permit for a storm water runoff facility. After the hearing officer approved the permit, the Department of Environmental Regulation (DER) denied it on the grounds that the homeowners association designated to maintain the facility lacked required successor entity provisions in its articles of incorporation. The appellate court reversed and remanded, directing DER to give the developer a reasonable opportunity to amend the articles.
The permit denial was reversed and the case was remanded to DER with directions to remand to the hearing officer to grant the developer a reasonable time to present amended articles of incorporation complying with Fla.Admin.Code Rule 17-25.027. If the amended articles comply, the permit shall issue; otherwise it shall be denied.
[1] A developer seeking a general permit for a storm water runoff facility may be denied the permit if the successor entity responsible for maintenance lacks sufficient provi…
[2] A hearing officer's initial finding that a petitioner is entitled to a permit does not preclude the permitting agency from later denying the permit based on newly discove…
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Join FLexlaw to unlock all legal intelligence“The Department does not have the 'proclivity' for remand.”
Establishes DER's stated policy against remanding cases, which the court found problematic and contrary to statutory purpose.
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Join FLexlaw to unlock all legal intelligenceSanta Fe Pass, Inc., a developer, filed notice of intent to use a general permit for constructing a storm water runoff facility. After DER initially o…
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PEARSON, TILLMAN, Associate Judge (Retired).
The appellant, a developer, filed with the Department of Environmental Regulation a notice of intent to use a general permit for the construction of a new storm water runoff facility. After notification that a general permit could not be issued, appellant filed a petition for administrative proceedings. The appellee, Santa Fe Lake Dwellers Association, Inc. was permitted to intervene as a party and opposed the issuance of the permit on environmental grounds. Prior to the hearing appellant and DER entered into a joint stipulation in which DER withdrew its opposition to the plan in return for appellant’s agreement to make certain amendments to the plan. The hearing proceeded upon the amended plan and the intervenor’s continuing objections to the plan.
The hearing officer found that appellant was entitled to the permit. DER, with commendable exactitude, then discovered that the homeowners association which is specified as successor entity to the developer for the maintenance of the facility had an insufficient provision for maintenance in its articles of incorporation. The specified insufficiency is that the articles do not provide for a successor entity in the event of the dissolution of the homeowner’s association as required by Fla.Admin.Code Rule 17-25.027. The permit was denied and ap pellant’s motion to remand was denied, leaving appellant where it had started over two years ago, with the only hope that upon reapplication a permit might finally be granted.
The formulation of an amendment to the homeowners association articles of incorporation is not an unusual or difficult task. But the Department states in its brief: “The Department does not have the ‘proclivity’ for remand.” In the hope that common sense and the expressed purpose of the Florida Air and Water Pollution Control Act, Ch. 403, Fla.Stat. might prevail, this court orally directed the parties to actively seek to settle this relatively simple matter. Unfortunately, our request has produced no result.
We therefore remand this cause to the Department of Environmental Regulation with directions to remand to the hearing officer, or some other qualified hearing officer to be assigned by the Division of Administrative Hearings, for the purpose of granting the petitioner Santa Fe Pass, Inc. a reasonable time to present amended articles of incorporation of the Santa Fe Pass Homeowners Association, Inc. In the event the amended articles are found by the hearing officer to comply with the requirements of Fla.Admin.Code Rule 17-25.-027, the permit shall issue, otherwise it shall be denied.
REVERSED with directions.
SHIVERS and ZEHMER, JJ., concur.
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1800 Atl. Developers v. Dep't OF Env't Reg. & City of Key W., 552 So. 2d 946 (Fla. 1st DCA 1989)…, as required by the statute. Accordingly, the order is reversed and the cause remanded for further negotiations and proceedings as may be necessary to comply with the statute. See Santa Fe Pass, Inc. v. State Department of Environmental Regulation, 520 So. 2d 618 (Fla. 1st DCA 1988). C. 1800 Atlantic also contends that the hearing officer erred in permitting Curtis Kruer, an employee of the United States Army Corps of Engineers and a member of the Florida Keys Citizens Coalition, to testify on behalf of th…