5D03-2493 St. Johns River Water Management v. Womack

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-2493

Case Date: 09/12/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2005

ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Appellant/Cross-Appellee, v. FLOYD WOMACK, Appellee/Cross-Appellant. ________________________________/ Opinion filed September 16, 2005 Appeal from the Circuit Court for Seminole County, Thomas G. Freeman, Judge. William H. Congdon, Palatka, for Appellant/Cross-Appellee. Roy B. "Skip" Dalton, Jr., Shannon McLin Carlyle, Christopher V. Carlyle and Gilbert S. Goshorn, Jr., of counsel, of The Carlyle Appellate Law Firm, The Villages, and Michael D. Jones of Michael D. Jones & Associates, P.A., Winter Springs, for Appellee/CrossAppellant. Valerie A. Fernandez and Steven Gieseler, Coral Gables, Amicus Curiae for Pacific Legal Foundation. CASE NO. 5D03-2493

PETERSON, J. The St. Johns River Water Management District, ("District"), appeals an Amended Final Judgment in which the trial court made detailed findings and concluded

that the District members were unduly influenced, by private interests, to set aside their public responsibilities in denying Floyd Womack's application for a management and storage of surface waters permit. The amended final judgment is fully set forth in the appendix to this opinion. The first time this cause appeared before this court it was remanded for lack of finality to enable the trial court to issue a final judgment and to address the applicability of section 373.617, Florida Statutes, raised as an issue in count V of Womack's complaint. While we believe the successor judge exceeded the authorization and

instructions upon remand by reversing in part the original judge's findings in favor of Womack, we now find the error to be harmless.

THE PROPERTY Womack's property contains 3 acres of forested uplands and 4 acres of forested wetlands within the Riparian Habitat Protection Zone, ("RHPZ"); thus, 7 acres of Womack's 7.6 acres is within the RHPZ. The property is densely wooded and heavily vegetated with a steep elevation drop of 23 feet from east to west toward the river.

THE APPLICATIONS Womack submitted a total of six plans to the District, all of which were reviewed by the District's staff who recommended that each application be denied. The first five applications were prepared by a professional engineer who had experience in preparing applications for District approval and each of the first four applications were amended in order to attempt to eliminate objections to Womack's planned development. The District

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Board never took final action on any of the initial five applications; instead, Womack withdrew the initial five applications to submit an amended application. The final application was prepared by Womack after his engineer advised him that he could no longer assist Womack because he had exhausted his ideas to eliminate District objections. Apparently frustrated by previous attempts with

professional assistance, Womack submitted a self-made application that provided no assurances that the described project would not adversely affect aquatic and wetland dependent species or the quality and quantity of water entering the Wekiva River, as mandated by the Florida legislature. The District solicited information from Womack's engineer about the self-made application. In response the engineer denied any

responsibility for the application and stated that he had previously withdrawn his engineering certification. Significantly, the engineer and another of Womack's expert witnesses at trial opined that Womack's final self-made application was properly rejected by the District. The District Board took final action by denying Womack's application because the application did not provide reasonable assurances that his proposed plan would comply with conditions necessary for issuance of a permit including reasonable assurances that there would be no or minimally adverse affects upon wetland dependent species or water quality and quantity.

THE LITIGATION Womack did not appeal the District's final denial. Instead, he filed suit in circuit court alleging the District's action violated his equal protection and substantive due

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process rights, resulting in a temporary and permanent inverse condemnation of his land, and violated section 373.617, Florida Statutes.

CONCLUSION Although we are reluctant to do so in view of the factual findings of impropriety during the District's proceeding, we must reverse the trial court's finding for Womack on count I. The District never took, nor was it requested to take, final action on any of the five professionally prepared applications. The only application upon which final action was taken was Womack's self-made application that, even in his own expert's opinion, was insufficient to warrant approval. We affirm the amended final judgment finding for the District under the remaining counts. REVERSED IN PART; AFFIRMED IN PART.

SHARP, W., and MONACO, JJ., concur.

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