ARTHUR M. NEWMAN, III, )
vs. ) CASE NO. 87-0496
Respondent. )
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 8, 1987, in Deland, Florida.
For Petitioner: James L. Rose, Esquire
For Respondent: Frederick J. Simpson, Esquire
District IV Legal Counsel Department of Health and Rehabilitative Services Post Office Box 2417
The Petitioner, Arthur M. Newman, III, filed an Application for Variance from Chapter 10D-6, FAC Standards for Onsite Sewage Disposal Systems with the Respondent, the Department of Health and Rehabilitative Services. The Respondent denied the Petitioner's application. By letter dated January 7, 1987, the Petitioner requested an administrative hearing.
At the commencement of the final hearing the parties offered several documents into evidence as a joint exhibit. Those documents were marked as Joint Composite Exhibit 1 and were accepted into evidence.
The Petitioner testified at the final hearing on his own behalf.
Petitioner's exhibits 1-5 were accepted into evidence. The Respondent presented the testimony of Roger Heupet, an environmental specialist with the Respondent.
At the conclusion of the formal hearing, the parties represented that they would not file proposed recommended orders.
Whether the Petitioner's Application for Variance from Chapter 10D-6, FAC Standards for Onsite Sewage Disposal Systems should be approved?
By letter dated September 9, 1986, the County Engineer for Volusia County, Florida, denied the Petitioner's request for expedited subdivision.
On or about October 15, 1986, the Petitioner filed an Application for Variance from Chapter 10D-6, FAC Standards for Onsite Sewage Disposal Systems (hereinafter referred to as the "Application").
On or about November 12, 1986, the Volusia County Health Department recommended denial of the Application.
By letter dated November 24, 1986, the Respondent advised the Petitioner that his Application had been placed on the agenda of the Variance Review Group's December 4, 1986 meeting.
By letter dated December 16, 1986, the Respondent informed the Petitioner that the Application was denied.
By letter dated January 7, 1987, from the Petitioner's counsel, the Petitioner requested a formal administrative hearing to contest the proposed denial.
The property involved in this case is located at 1083 Sheri Boulevard, Daytona Beach, Volusia County, Florida (hereinafter referred to as the "Property").
The Petitioner's parents originally owned 10 acres of property. By warranty deed dated September 12, 1958, the Petitioner's parents gave the Petitioner the Property which consisted of two lots from the ten acres, described as follows:
The Easterly 149 feet of the Westerly 295 feet of the Southerly 1/2 (one half) of Lot 140, Blake, as per map in Map Book 1, page 38, of the public records of Volusia County, Florida.
The Petitioner's parents also gave five acres of the ten acres to another individual in 1958. This property was developed as a mobile home park.
The Property measures 150 feet x 150 feet.
The property immediately to the west of the Property is currently owned by the Petitioner's Father. It measures 155 feet x 150 feet.
Between 1958 and 1960 the Petitioner began construction of a single- story house on the Property.
Also between 1953 and 1960 the Petitioner placed a mobile home on the Property. The Petitioner and his family lived in the mobile home while his house was being constructed.
Two septic tanks were placed on the Property sometime between 1958 and 1960. The mobile home located on the Property was hooked up to one of the septic tanks.
In 1960 construction of the house was completed and the Petitioner and his family moved into the house.
The mobile home remained on the Property until 1961 when it was permanently removed.
When construction of the house was completed, both septic tanks were connected to the house.
Since 1961, trailers have been temporarily on the Property and have been hooked up to one of the septic tanks. Use of the septic tank by trailers has been infrequent, however, since 1961.
Recently the Petitioner placed a mobile home on the Property and hooked it up to one of the septic tanks. The Petitioner was cited by the Volusia County Code Compliance Board for having the mobile home located on the Property.
Subsequent to the action by the Volusia County Code Compliance Board the Petitioner attempted to subdivide the Property.
The Petitioner proposes using a portion of the Property and a portion of his Father's adjoining property to create a lot 60 feet by 150 feet. The evidence failed to prove how much of the Property and how much of the Petitioner's Father's property would be used to create the new lot.
The Petitioner wants to put a mobile home on the new lot and hook it up to one of the existing septic tanks on the Property. The Petitioner plans to provide the mobile home as a home for his daughter who is unemployed. Both of the existing septic tanks on the Property would remain on the Property if the subdivision is approved.
The Property is .39 acres and the Petitioner's Father's adjoining lot is .48 acres.
The Property and the Petitioner's Father's adjoining property have existing single story residences and use wells located on the property. The private well on the Property is less than 75 feet from the septic tanks.
If a new lot is created, it will be located between the Property and the Petitioner's Father's property and all three lots will be less than 1/2 acre in size.
The two septic tanks on the Property are larger than normal and the Petitioner is not aware of any problem with the two tanks.
The Petitioner does not believe that there has been any contamination of his well caused by the septic tanks.
Mobile homes are located in the mobile home park and on other lots in the area of the Property. The mobile homes are located on lots of less than 1/2 acre and they use septic tanks. There is therefore, a high concentration of septic tanks in the area.
Mobile homes are frequently moved on and off property in the area but other lots do not remain vacant for any appreciable time.
The Respondent reviewed the Petitioner's Application in accordance with its Rules.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).
The Legislature has declared that it is the policy of the State that onsite sewage disposal systems should be connected to publicly owned or investor-owned sewerage systems. Section 381.272(1), Florida Statutes (1986 Supp.). If such systems are not available, the Legislature has indicated that
the Respondent may "issue permits for the construction or installation of onsite sewage disposal systems under the conditions as described . . ." in Section 381.272, Florida Statutes (1986 Supp.). In relevant part, the following conditions apply to the installation or construction of an onsite sewage disposal system:
Subdivisions and lots in which each lot
has a minimum area of at least one-half acre and either a minimum dimension of 100 feet or a mean of at least 100 feet of the side bordering the street and the distance formed by a line parallel to the side bordering the street drawn between the two most distant points of the remainder of the lot may be developed with a private potable well and on- site sewage disposal system, provided the projected daily domestic sewage flow does not exceed an average of 1,500 gallons per acre per day, and provided satisfactory drinking water can be obtained and all distance and setback, soil condition, water table elevation, and other related requirements of this section and rules promulgated hereunder can be met.
Section 381.272(2), Florida Statutes (1986 Sup.).
Section 381.272(6), Florida Statutes (1986 Supp.), provides, among other things, that onsite sewage disposal systems may be placed no closer than
75 feet from a private potable well.
Pursuant to Section 381.272(8)(a), Florida Statutes (1986 Supp.), the Respondent is authorized to grant variances from the requirements for onsite sewage disposal systems in "hardship cases" if the following conditions are met:
The hardship was not caused intentionally by the action of the applicant;
No reasonable alternative exists for the treatment of the sewage; and
The discharge from the individual sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters.
Finally, Section 381.272(7) and (8), Florida Statutes (1986 Supp.), provide certain exceptions for lots platted before 1972.
In furtherance of the Respondent's authority to grant variances, the Respondent has adopted Rule 10D-6.46(3), Florida Administrative Code, which provides:
(3) Upon consideration of the merits of each application and the recommendations of the review group, the Staff Director, Health Program Office, has discretionary authority to grant a variance from certain provisions of this Chapter. Such variance may be granted to relieve or prevent excessive hardship only in cases involving minor deviation from established standards when it is clearly shown that the public health will not be impaired or that pollution of surface or ground water will not result.
Based upon the evidence presented in this case, it is clear that the proposed subdivision of the Petitioner's Property and his Father's adjoining property into three lots does not comply with the requirements of Section 381.272(2), Florida Statutes (1986 Supp.), for the development of lots with private potable walls and onsite sewage disposal systems. The proposed subdivison will result in three lots of less than 1/2 acre in area and the new lot's sewage disposal system will be within 75 feet of a private potable well.
The evidence also established that the proposed new lot was not platted prior to 1972. Therefore, the exceptions applicable to lots platted prior to 1972 provided in Section 381.272(7) and (8), Florida Statutes (1986 Supp.), do not apply.
The Petitioner did not dispute these conclusions of law at the final hearing. Instead, the Petitioner argued that he should be granted a variance pursuant to Section 381.272(8)(a), Florida Statutes (1986 Supp.). This provision applies, however, only in "hardship cases." Counsel for the Petitioner argued that this is a hardship case because the Respondent's daughter is unemployed and the Petitioner wants to provide her with a place to live. While the Petitioner's desire to assist his daughter may be commendable, this is not the type of hardship contemplated by the Legislature.
In addition to failing to prove that this is a hardship case, the Petitioner failed to prove that "discharge from the individual sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters." Although the Petitioner testified that there had not been any problems with his water supply or the septic tanks, the testimony of the Petitioner is not persuasive. All the Petitioner's testimony showed was that he was not aware of any problems. The Petitioner was not proffered as an expert in onsite sewage disposal systems or water systems. Without testimony from such an expert or the introduction of other evidence, it cannot be concluded that the requirement of Section 381.272(8)(a)3, Florida Statutes (1986 Supp.), is satisfied.
Finally, the Petitioner presented evidence concerning the use of septic tanks and mobile homes in the surrounding area. That evidence does not support a conclusion that the variance should be granted. In essence, the Petitioner is arguing that if others are not complying with the law with regard to the minimum size of a lot with onsite sewage disposal systems and private potable wells, he should also be allowed to use his property in the same manner. This argument fails to recognize that the surrounding property was probably platted prior to 1972 (the evidence failed to prove conclusively when the surrounding property was platted) and is therefore in compliance with the law. Even if the surrounding property is not in compliance with Section 381.272, Florida Statutes (1986 Supp.), this would not justify granting the Petitioner a variance when the variance is not authorized by law. Finally, the evidence concerning the use of other lots in the area supports the conclusion that the variance should not be granted. The evidence indicates that the area where the Property is located already has a high concentration of undersized lots with onsite sewage disposal systems. The addition of another onsite sewage disposal system will therefore only add to the potential harm which can result from onsite sewage disposal systems to the water system of the area.
Although the fact that an existing septic tank would be used in this situation and it will be used only by the Petitioner's daughter initially, allowing the Petitioner to subdivide the Property would allow the Petitioner to use the newly created lot to house another family. Therefore, although the number of septic tanks will not increase, their ultimate use could increase to the same extent that would occur if a new onsite sewage disposal system were constructed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's Application be denied.
DONE and ENTERED this 24th day of April, 1987, in Tallahassee, Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1987.
Mr. Sam Power, Clerk Department Of Health and
Mr. Gregory Coler, Secretary Department of Health and
James L. Rose, Esquire Rice and Rose
Frederick J. Simpson, Esquire District IV Legal Counsel Department of Health and
