Opinion
No. BR-478.
January 15, 1988. Rehearing Denied March 17, 1988.
Appeal from the Department of Environmental Regulation, Michael M. Parrish.
Frank E. Matthews and Eleanor M. Hunter, of Hopping, Boyd, Green Sams, Tallahassee, for appellant.
Paul R. Ezatoff, Deputy Gen. Counsel, Tallahassee, for Dept. of Environmental Regulation, appellee.
Robert S. Griscti, of Turner, Kurrus Griscti, and Barbara Blount, Gainesville, for Santa Fe Lake Dwellers Ass'n, Inc., appellee/intervenor.
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 appellant'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.