STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEN F. WARD, JR., )

)

Petitioner, )

and )

)

E.L.C. PARTNERSHIP, )

)

Intervenor )

)

vs. ) CASE NO. 87-3541

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this matter was held on February 7, 1988, in Sanford, Florida before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Ben F. Ward, Jr.

Ben F. Ward, Jr. (representing himself)

Ben Ward Agency, Inc. Post Office Box 670 Oviedo, Florida 32765

For Intervenor: John A. Baldwin, Esquire

E. L. C. Partnership Baldwin & Baum

7100 South Highway 17-92 Fern Park, Florida 32730

For Respondent: James A. Sawyer, Jr., Esquire HRS HRS District 7 Legal Counsel

400 West Robinson Street, Suite 911 Orlando, Florida 32801

BACKGROUND AND PROCEDURAL MATTERS

This proceeding arose from a denial of a septic tank permit and subsequent denial of a request for a variance from the septic tank rules.

The petition was filed by Ben Ward, Jr., the original owner and developer of the property for which the permit and variance were requested.

In an Order dated October 20, 1987, E.L.C. Partnership, the current owner, was allowed to intervene, without objection. At that time, the parties stipulated that the denial of permit and request for variance were both issues in the proceeding.

At the hearing, Ben Ward testified in his own behalf; ELC presented one witness; and HRS had no witnesses. Eight exhibits offered jointly by Ward and ELC were admitted without objection.

No transcript was prepared, nor did any of the parties submit post-hearing written material.

ISSUES

1. Whether a septic tank permit, should be granted for lot 2, Whispering Oaks Subdivision. More specifically, does the' requirement of no more than four lots per acre require a minimum lot size of 1/4 acre?

   
   

   In the alternative, must the subject lot be grouped with three contiguous lots to determine whether the density requirement is met?

   
   

2. If a permit should be denied, is a variance appropriate under HRS' rules and the circumstances of the case?

FINDINGS OF FACT

The essential facts in this case are uncontroverted.

1. Ben F. Ward is the President and sole stockholder of Ben Ward, Incorporated. His business for over eighteen years has been real estate, construction and development. He has built over 300 homes and is familiar with the procedures for developing a subdivision, including obtaining septic tank permits.

   
   

2. In 1979, Ben Ward purchased the property now designated Whispering Oaks Subdivision, located in the City of Oviedo, Seminole County, Florida. The property contains approximately six acres, net. That is, the paved right of ways have been disregarded. There are no streams, lakes or other bodies of surface water on the property.

   
   

3. Ward subdivided his property into 26 lots, two of which, lots number 12 and 17, are dedicated for recreational use and will not have homes. Some of the lots are less than 1/4 acre; others are more. Lot number 2 has 9,137 square feet, 1,753 square feet less than 1/4 acre.

   
   

4. As a condition of plat approval, the City of Oviedo required Ward to obtain approval from the Seminole County Health Department. Val Roberts was the county health officer with whom Ward consulted. A process was devised for "borrowing" acreage from lots of over 1/4 acre to meet the minimum requirements for lots less than 1/4 acre. In other words, it was determined that the total net acreage in the subdivision would be considered in computing the four lots per acre minimum.

   
   

5. The plat was approved and was recorded in 1980. Between 1981 and 1987,

   19 residences were built and septic tank permits were obtained. There is city water service in the subdivision.

6. In 1985, Ward sold 16 lots to the Erie Land Company, a partnership comprised of Mary Ellen Hines and her husband. In reliance on the arrangement worked out with the health department, Ward assured ELC that the lots were buildable. He remained trustee of the property.

   
   

7. On February 26, 1987, the Seminole County Health Department (HRS) denied Ward's application for a septic tank permit for lot number 2, including a 3-bedroom, 2-1/2-bath home, comprising 2100 square feet.

   
   

   The denial letter cites rule 10D-6.46(7)(b), F.A.C., and says "Four lots grouped together lack approximately 3000 square feet of meeting the required lot size...". The letter provides the procedure for petition for a variance to Rule 10D-6, F.A.C.

   
   

8. Ward applied for the variance, and its approval was recommended by a vote of 3-2 by the HRS Review Group for Individual Sewage Disposal. The recommendation was denied by the HRS State Health Officer, E. Charlton Prather,

   M.D. in a letter dated May 7, 1987 which states, in pertinent part:

   
   

   Grouping of lots to determine whether the subdivision meets the four lot per

   acre requirement must be done in a logical manner to maximize the homogenous dissemination of sewage effluent or prevent a concentration of sewage effluent in a small or limited area. Once a specific area is utilized in calculating sewage flow dispersal for a group of lots, that area cannot be further used for another lot or group of lots.

   
   

9. Lot number 2 meets all requirements of HRS for septic tanks, with the exception of the density methodology. Ward surveyed the homes built and occupied for approximately a year and found that the subdivision as a whole is about 60% of allowable capacity. Ms. Haynes has lived on lot number 22 for six years and has never had septic tank problems. She holds an inactive real estate license, and before purchasing the property found the subdivision high and dry and well-developed.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to Sections 120.57(1), Florida Statutes.

    
    

11. Subsection 381.272(3), F.S. governs the use of septic tanks in subdivisions such as Whispering Oaks.

    
    

    * * *

    (3) Subdivisions and lots with a public water system may utilize onsite sewage disposal systems, provided there are no more than four lots per acre, provided the projected daily domestic sewage flow does not exceed an average of 2,500 gallons per day, and provided that all distance and setback, soil condition, water table

    elevation, and other related requirements which are generally applicable to the use of onsite sewage disposal systems are met.

    * * *

    
    

12. In this proceeding, in the absence of other evidence, HRS' policy in interpreting this provision is found in its promulgated rules and in denial letters.

Rule 10D-6.46 F.A.C. was adopted in February 1985, and is applicable to the permit in issue. Rule subsection 10D- 6.46(7)(b), FAC, addresses subdivisions utilizing public water systems:

* * *

(b) Subdivisions and lots utilizing a public water system well as defined in Rule 10D-6.42(31)(c) may utilize onsite sewage disposal systems provided there are no more than four lots per acre, provided the projected daily domestic sewage flow does not exceed an average of 2500 gallons an acre per day, and provided that all distance and setback, soil condition, water table elevation and other related requirements which are generally applicable to the use of onsite sewage disposal systems are met. Rule 10D- 6.46(7)(e)3., F.A.C., shall be used for determining compliance with the 2500 gallon per acre per day sewage flow allowance of this subsection.

* * *

Rule 10D-6.46(7)(e)3., F.A.C. requires that maximum daily sewage flow allowances be calculated on an individual lot by lot basis.

In contrast, Rule 10D-6.46(7)(e)2. F.A.C. provides:

* * *

2. *The determination of lot densities under Rule 10D-6.46(7)(b) shall be made on the basis of the net acreage of the subdivision* which shall exclude from the gross acreage all paved areas and prepared road beds within public or private rights- of-way or easements and shall also exclude streams, lakes drainage ditches, marshes or other such bodies of surface water.

(emphasis added between *)

1. In State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2nd 238 (Fla. 1st DCA 1981), cited by Petitioners, the court approved the Department's interpretation by rule and policy that "four lots per acre" meant that the subject lot and any three contiguous lots, had to comprise at least an acre. (p. 240) The court invalidated the rule, however, based upon an inadequate economic impact statement.

   This case addressed the septic tank rules which were adopted in 1979.

   Since then, in 1985, the rules were substantially rewritten and the rules in effect now, and at the time the lot 2 permit was in issue, clearly provide for consideration of the total net acreage of the subdivision.

   
   

2. In the absence of an explanation by HRS, the denial letters appear to conflict with the plain language of rule 10D- 6.46(7)(e), F.A.C. The denial letters also appear to conflict with HRS' approval of 19 other permits in this subdivision.

   
   

3. The applicant met its burden of proving entitlement to the septic tank permit. Nothing in the record of this proceeding provides explication or justification of HRS' position that lot 2 must contain 1/4 acre or may only be grouped with contiguous lots in order to meet the four lot per acre minimum.

   
   

4. It is unnecessary, in light of this conclusion, to consider the appropriateness of a variance from the rule.

RECOMMENDATION

Based on the foregoing, it is, hereby RECOMMENDED:

That the application for septic tank permit for lot 2, Whispering Oaks subdivision, be GRANTED.

DONE and RECOMMENDED this 18th day of February, 1988, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1988.

COPIES FURNISHED:

Ben F. Ward, Jr.

Ben Ward Agency, Inc.

P. O. Box 670

Oviedo, Florida 32765

John A. Baldwin, Esquire Baldwin & Baum

7100 S. Highway 17-92 Fern Park, Florida 32730

James A. Sawyer, Jr., Esquire HRS District 7 Legal Counsel

400 W. Robinson St., Suite 911 Orlando, Florida 32801

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, Esquire Acting General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEN WARD AGENCY, INC., )

)

Petitioner, )

and )

)

E. L. C. PARTNERSHIP, )

)

Intervenor, )

)

vs. ) CASE NO. 87-3541

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on September 13, 1989, in Sanford, Florida.

APPEARANCES

For Petitioner, Ben F. Ward, Jr. Ben Ward Post Office Box 670

Agency, Inc.: Oviedo, Florida 32765

For Intervenor, John Baldwin, Esquire

E.L.C. 7100 South Highway 17-92 Partnership: Fern Park, Florida 32730]

For Respondent, James A. Sawyer, Esquire Department of District 7 Legal Counsel Health and 400 West Robinson Street Rehabilitative Suite 701

Services: Orlando, Florida 32801 STATEMENT OF THE ISSUES

The issue for determination is whether Petitioner and Intervenor should be granted a septic tank permit variance on Lot Number 2, Whispering Oaks Subdivision, Oviedo, Seminole County, Florida.

PRELIMINARY STATEMENT

This case has a lengthy procedural history, partly chronicled in a Recommended Order dated February 18, 1988.

That Recommended Order resulted from a formal evidentiary hearing conducted on January 7, 1988, on the issues of entitlement to a septic tank permit or, alternatively, to a variance. The order recommended approval of the permit and did not address the variance.

On March 16, 1988, the Department of Health and Rehabilitative Services remanded the case to the Division for a determination of whether a variance should be granted. In its order, the agency rejected the recommended interpretation of its septic tank rule and, by implication, denied the permit.

E.L.C. Partnership appealed the March 16, 1988, order to the Fifth District Court of Appeal.

On April 25, 1989, that court affirmed, per curiam, the Department's order; and a copy of the decision was provided to the hearing officer on June 29, 1989.

At the hearing on remand the parties stipulated that official recognition could be taken of the entire record on appeal, including a transcript of the earlier hearing on January 7, 1988.

In addition, by agreement, the parties supplemented the existing record with brief testimony from Ben F. Ward, Jr. and Dr. Michael Hynes, one of the

1. partners.

   
   

   The transcript was prepared and was filed on September 27, 1989.

   
   

   No post-hearing arguments nor proposed recommended orders were filed.

   FINDINGS OF FACT

   
   

   As stated in the Recommended Order dated February 18, 1989, the essential facts in this case are uncontroverted. The facts from the February 18, 1989 order are repeated here, with additional findings based on the evidence presented at the second hearing.

   
   

   1. Ben F. Ward is the President and sole stockholder of Ben Ward, Incorporated. His business for over eighteen years has been real estate, construction and development. He has built over 300 homes and is familiar with the procedures for developing a subdivision, including obtaining septic tank permits.

      
      

   2. In 1979, Ben Ward purchased the property now designated Whispering Oaks Subdivision, located in the City of Oviedo, Seminole County, Florida. The property contains approximately six acres, net. That is, the paved right of ways have been disregarded. There are no streams, lakes or other bodies of surface water on the property.

      
      

   3. Ward subdivided his property into 26 lots, two of which, lots number 12 and 17, are dedicated for recreational use and will not have homes. Some of the lots are less than 1/4 acre; others are more. Lot number 2 has 9,137 square feet, 1,753 square feet less than 1/4 acre.

      
      

   4. As a condition of plat approval, the City of Oviedo requires War to obtain approval from the Seminole County Health Department. Val Roberts was the county health officer with whom Ward consulted. A process was devised fro "borrowing" acreage from lots of over 1/4 acre to meet the minimum requirements for lots of less than 1/4 acre. In other words, it was determined that the total net acreage in the subdivision would be considered in computing the four lots per acre minimum.

      
      

   5. The plat was approved and was recorder in 1980. Between 1981 and 1987, 19 residences were built and septic tank permits obtained. There is city water service in the subdivision.

      
      

   6. In 1985, Ward sold 16 lots to the Erie Land Company, a partnership comprised of Mary Ellen Hines and her husband. In reliance on the arrangement worked out with the health department, Ward assured E.L.C. that the lots were buildable. He remained trustee of the property.

      
      

   7. On February 26, 1987, the Seminole County Health Department (HRS) denied Ward's application for a septic tank permit for lot number 2, including a 3-bedroom, 2-1/2-bath home, comprising 2100 square feet.

      
      

      The denial letter cites rule 10D-6.46(7)(b), F.A.C., and says "Four lots grouped together lack approximately 3000 square feet of meeting the required lot size..." The letter provides the procedure for petition for a variance to Rule 10D-6, F.A.C.

   8. Ward applied for the variance, and its approval was recommended by a vote of 3-2 by the HRS Review Group for Individual Sewage Disposal. The recommendation was denied by the HRS State Health Officer, E. Charlton Prather,

      M.D. in a letter dated May 7, 1987 which states, in pertinent part:

      
      

      * * *

      Grouping of lots to determine whether the subdivision meets the four lot per

      acre requirement must be done in a logical manner to maximize the homogenous dissemination of sewage effluent or prevent a concentration of sewage effluent in a small or limited area. Once a specific area is utilized in calculating sewage flow dispersal for a group of lots, that area cannot be further used for another lot or group of lots.

      * * *

      
      

   9. Lot number 2 meets all requirements of HRS for septic tanks, with the exception of the density methodology. Ward surveyed the homes built and occupied for approximately a year and found that the subdivision as a whole is about 60% of allowable capacity. Ms. Haynes has lived on lot number 22 for six years and has never had septic tank problems. She holds an inactive real estate license, and before purchasing the property found the subdivision high and dry and well-developed.

      
      

   10. The hardship in this case is the owners' inability to derive an economic benefit from their investment. No reasonable alternative exists for the treatment of sewage in this subdivision. Public sewer service is not available.

       
       

       Neither Ben Ward nor the Hynes' created the hardship intentionally.

       Rather, the Hynes' relied on the assertions of Ben Ward when they bought the property. Ben Ward, in turn, relied on Val Roberts and the plat approval by the City of Oviedo when he proceeded to develop and improve the property with the intent that lots be sold for single family residences.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding, pursuant to Section 120.57(1), F.S.

       
       

   12. Subsection 381.272(3), F.S. governs the use of septic tanks in subdivisions such as Whispering Oaks.

       
       

       1. Subdivisions and lots with a public

          water system may utilize onsite sewage disposal systems, provided there are no more than four lots per acre, provided the projected daily domestic sewage flow does not exceed an average of 2,500 gallons per day, and provided that all distance and setback, soil condition, water table

          elevation, and other related requirements which are generally applicable to the use of onsite sewage disposal systems are met.

   13. In the absence of entitlement to a septic tank permit, an applicant may seek a variance as provided in Rule 10D-6.045, F.A.C.:

       
       

       1. Upon consideration of the merits of each application and the recommendations of the review board, the Staff Director, Health Program Office, has discretionary authority to either grant a variance as requested, grant a provisional variance or deny the variance request. A 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 hardship was not caused intentionally by the action of the applicant, where no reasonable alternative exists for the treatment of sewage and where discharge from

          the onsite sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade ground or surface waters.

          
          

   14. Uncontroverted evidence has established that the hardship was not intentionally created by the applicants. No alternative exists. The sewage capacity limit will not be exceeded and the applicants have affirmatively provided that the proposed septic tank on this lot will not adversely affect public health or the environment.

       
       

   15. Even though the Department's policy regarding the grouping of lots may be a long-standing policy, the rules and the statute have been substantially amended since the Whispering Oaks plat was approved. The interpretation by Ben Ward, Val Roberts, the City of Oviedo and the Hynes' was a good-faith reading of the requirements for a permit.

Since the other requirements for a permit have been met, including the maximum flow limits, the applicants should not be denied the use of a lot which is .21 rather than .25 acre in size.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED

That a variance be granted for lot 2, Whispering Oaks subdivision with she proviso that all permit requirements, save size of lot, be met.

DONE AND RECOMMENDED this 16th day of October, 1989, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1989.

COPIES FURNISHED:

Ben F. Ward, Jr.

Ben Ward Agency, Inc. Post Office Box 670 Oviedo, Florida 32765

John A. Baldwin, Esquire 7100 South Highway 17-92 Fern Park, Florida 32730

James A. Sawyer, Jr., Esquire District 7 Legal Counsel

400 West Robinson Street, Suite 701 Orlando, Florida 32801

Gregory L. Coler, Secretary Dept. of Health and Rehab. Svcs. 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700 John Miller, General Counsel Dept. of Health and Rehab. Svcs. 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

R. S. Power, Agency Clerk

Dept. of Health and Rehab. Svcs. 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Docket for Case No: 87-003541

Orders for Case No: 87-003541