ST. JOHNS RIVER WATER MANAGEMENT DISTRICT AND CEDAR ISLAND HOMEOWNERS' ASSOCIATION OF FLAGLER COUNTY, INC.

v.

EDWARD J. CECE AND ANNA M. CECE

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.

________________________________/

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

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 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, noncompliant 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 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 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 asdesigned 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. 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 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 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.

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 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.