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A Flood of Controversy
The developer of Tampa's exclusive Avila community seeks $8 million in damages from the Southwest Florida Water Management District and Hillsborough County.
By David R. Corder
Associate Editor
On a single day in May 1979 about 11.45 inches of rain fell over the Tampa Bay area, weather records show. Storm water that collected in the exclusive Avila community north of Tampa exceeded the 850-acre residential development's retention capabilities. Avila's excess storm water flooded neighboring homes to the south along Byrd Lake Drive. Homeowners complained.
To solve the problem, Hillsborough County officials extended a storm water interceptor canal onto Avila property across its northern boundary. Then county officials ordered Sico Inc., Avila's developer, to pump all excess storm water northward into the canal extension against the southern outfall.
Now 25 years later, storm water runoff problems continue to plague the developer of this community where many of the Tampa Bay area's rich and famous call home. An unknown number of neighboring homeowners continue to complain about pumping and flooding problems to the Southwest Florida Water Management District, known as Swiftmud, the agency responsible for storm water regulation in the Tampa Bay area.
To qualm complaints, Sico applied for a permit through Swiftmud to construct an alternative storm water management system. But Swiftmud staff recently rejected Sico's permit. That means the agency's governing board probably will reject it too when it meets later this month.
Upset with the staff's response, Sico officials responded last month with a lawsuit in Hillsborough's Circuit Court. The company, managed by J. Robert "Hi" Sierra Jr., accuses Swiftmud and Hillsborough officials of an illegal public taking. Sierra retained Akerman Senterfitt attorneys Leslie Joughin III and Wesley D. Tibbals to plead their cause. Sierra and the company seek $8 million in damages.
While Sierra didn't respond to a request for comment, Swiftmud spokesman Michael Molligan says the agency labeled the lawsuit filed on Aug. 11 as frivolous. He says Swiftmud's legal staff notified Joughin and Tibbals the agency will seek attorney's fees if the company doesn't withdraw the complaint within 21 days of the filing date.
"We've received complaints about unauthorized pumping from the property," Molligan says. "We told the property owner, which is Sico/Avila, that they would need to get a permit. After extensive discussions, they applied for a permit. However, they've not provided us with sufficient information to show that they meet all the criteria for the permit.
"So the status now is (the permit) is scheduled to go before our governing board for denial this month. The application has to show that their activities are not going to cause problems for other people downstream or the water resources. They have not given us enough information to meet that burden."
Temporary measure
The decision by Hillsborough officials in 1979 to construct the canal extension supposedly was only a temporary fix, the lawsuit states. County officials purportedly offered assurances they would seek a permanent fix. At no time did those officials seek adoption of an ordinance to take the property through an easement.
"Despite the county's representations that the interceptor canal would be used only as a temporary measure and that the county would develop and implement an alternative and permanent solution to the flooding problems in that area, over the past 25 years the county did not develop a permanent solution to the flooding problems," the lawsuit states. "Nor did the county redirect Sico to pump elsewhere, open its southern outfall or take any other action."
Officials at the Hillsborough County attorney's office did not respond to a GCBR request for comment about the lawsuit. A spokesperson in the storm water engineering section of the county Public Works Department referred all calls about the matter to the county Real Estate Department. A spokesperson there referred all inquiries to the Planning and Growth Management Department, which also did not respond.
The company argues in the lawsuit that county funding problems and environmental regulatory prohibitions interfered with plans for a permanent fix.
Over the next five years, the lawsuit states, Sico officials operated and maintained the pumps and the canal at the county's direction. Then in 1984 state law allocated responsibility for storm water permitting and regulations in the Tampa Bay area to Swiftmud.
Several years later, Swiftmud issued the county a permit to construct a wetlands mitigation bank to the west and south of Avila, the lawsuit states. County engineers lowered the bank on the south side of the canal extension to the west of Avila. That design allowed water to back up in the canal and then spill over into the wetlands area. The lawsuit claims the flood-control effort failed. Apparently the water flowed in the opposite direction of the intended design.
El Nino
During the late '90s, global effects of an El Nino, a large tropical weather disturbance in the South Pacific Ocean, disrupted Tampa Bay area weather. Extensive rainfall again collected within the Avila community. Storm water runoff flooded neighboring homeowners, who complained to Swiftmud.
In early 1998, Swiftmud officials ordered Sico to cease the northward pumping into the canal extension, even though the agency knew about the county's order, the lawsuit states. Later that year, the county commissioned a flood study for the Byrd Lake area and the nearby wetlands area.
In February 1999, the lawsuit states, Swiftmud granted Sico a permit for an electric pumping station. This station would pump excess storm water and channel it into an on-site lake that would drain into the canal extension. However, the developer claims ongoing litigation with some of the neighboring homeowners delayed construction of the pump station. Two years later, the permit expired.
On New Year's Eve day 2002, Molligan says, a Swiftmud official observed six unauthorized pumps operating in the southwest section of Avila. The agency fined Sico $25,000 but agreed to a negotiated deal of $8,500 in a proposed consent order. Neither side signed the order, however.
The agency subsequently granted Sico a modified permit in June 2003, which allowed the developer to install a small electric pump to discharge storm water directly into the canal extension, the lawsuit states. Meanwhile, Sico officials resubmitted an application to construct a larger electric pumping station.
During the summer and fall of 2003, neighboring homeowners again complained to Swiftmud officials about Avila's storm water runoff, the lawsuit states. This time they cited problems with a 12-inch PVC pipe and weep holes constructed in 1987 in a concrete wall that runs along the Avila community's southwest boundary.
Swiftmud and Sico officials met with the neighbors in August last year in an effort to resolve their concerns, the lawsuit states. The developer claims the agency did not act on any of the issues that emerged in that meeting.
Public taking
In the lawsuit, Joughin and Tibbals argue Swiftmud and county officials violated Article X, Section 6, of the Florida Constitution. They argue neither government entity enacted law or adopted ordinance as a precursor to taking the Avila land for the interceptor canal extension.
"The extension of the interceptor canal across Sico's property is an unlawful easement across Sico's property for the public purpose of draining the northern landowners' property over Sico property," they argue in the lawsuit. "The county failed to enact a law or otherwise properly exercise the power of eminent domain prior to creating the drainage easement across Sico's property.
"Because of (Swiftmud's) stop-pumping directive, Sico has been deprived of all beneficial use of the unlawful drainage easement created by the county across Sico's property, such that the only present purpose of the easement is for the public's good."
Besides the public takings action, the Akerman Senterfitt lawyers also seek declaratory relief. They want a Hillsborough Circuit judge to clarify whether Swiftmud has any rights over pumping activity originally approved by the county.
Two other claims assert promissory estoppel and unjust enrichment against both government agencies, the lawsuit states.
In the estoppel claim, the lawyers argue against Swiftmud's pumping prohibitions. They argue such pumping would not unduly harm the public interest, especially since the developer has pumped storm water runoff into the canal extension for nearly 25 years.
On the latter charge, the lawyers argue: "The county and (Swiftmud) knowingly and voluntarily accepted and retained the benefit conferred on them by Sico. It would be unjust and inequitable for the county and (Swiftmud) to retain benefits conferred upon them without duly compensating Sico."
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