vs. ) CASE NO. 89-3776
Respondent. )
The final hearing in this case was held on September 21, 1989, in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.
For Petitioner: Michael J. Morrison, Esquire
For Respondent: Raymond R. Deckert, Esquire
W. T. Edwards Facility
The issue in this case is whether the Department of Health and Rehabilitative Services (Department) should issue a permit for an onsite sewage disposal system (septic tank and drainfield) at Vandenberg Airport to Hillsborough County (County).
At the hearing, the County called Joe Moreda, community planner with the county planning and zoning department, Frank Ferlita, Jr., waste water engineer with the county planning and zoning department, Darrell Hanecki, a geotechnical engineer who was accepted as an expert in engineering, William Fernandez, who was accepted as an expert in civil engineering, and Ed Cooley, director of general aviation with the county aviation authority. The Department called Serge Garlinski, environmental specialist with the county health department, Robert M. Blanco, supervisor of the county health department septic tank program, and Gary Schneider, environmental specialist with the Department. The County introduced fourteen exhibits, and the Department introduced six exhibits,
while two exhibits offered by the Department were rejected. At the commencement of the hearing, the County's Motion to Amend Petition and Motion for Official Recognition were granted.
The transcript of the final hearing was filed on October 2, 1989, and the parties were given ten days thereafter to file their proposed recommended orders, including proposed findings of fact. A ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.
The County is a political subdivision of the State of Florida, and the Hillsborough County Sheriff's Office is a department of the County government.
On or about January 18, 1989, a site evaluation for the County's application, on behalf of the Hillsborough County Sheriff's Department, for an onsite sewage disposal system (septic tank and drainfield) at Vandenberg Airport was conducted. A soil profile was prepared showing brown sand from the ground surface down 14 inches, a gray sand down another 2 inches, and a gray clay from
16 inches to 7 feet below the surface. The United States Department of Agriculture Soils Survey Book classifies the soils found at Vandenberg Airport as Manatee fine sandy loam, which is now called Chobee 10, and characterizes its permeability as "severe" with a seasonal high water table of from 0 inches at ground surface to 10 inches below the ground surface. By letter dated April 13, 1989, the Department formally denied the County's application due to the poor texture of the Chobee 10 soil and high water table found in the site evaluation, as well as the zoning of the property. This denial letter recognized the applicant's right to apply for a variance.
Since the County anticipated denial of its application due to verbal indications from Departmental representatives, the County filed an application for variance with the Department on or about March 29, 1989. A Variance Review Board met and considered the County's variance application, and then recommended approval. However, the variance application was denied by the Department on June 1, 1989, due to the nature of the activities to be conducted on the site, as well as the severe soil conditions on site. The denial of the County's variance request effectively denied its application for this permit.
The County has timely sought this review of the Department's denial of its application for a permit for a septic tank and drainfield system at Vandenberg Airport for use by the Sheriff's Department.
The parties stipulated that the County's application included the redesign plans and report of its consulting engineers. They further stipulated that the location for which this permit is sought is imperative to the duties of the Sheriff's Department, and there is no alternative to this location without greatly increasing the response time of the Sheriff's Department to emergencies and other calls for service.
The Hillsborough County Sheriff's Department has been operating its aviation unit out of a hangar at Vandenberg Airport for several years, and in March, 1989, the County entered into a ten year lease with the Hillsborough County Aviation Authority for approximately 103,126 square feet of land (2.37 acres) located at the Vandenberg Airport for a new hangar for storage and maintenance of aircraft used in conjunction with the services provided by the Sheriff's aviation unit. The site was formerly used for three residences which were served by septic tanks. This lease specifically provides that the County
is responsible for obtaining all necessary permits and for securing necessary utility services for the use of this Sheriff's hangar. Thus, the Aviation Authority is not responsible for providing sewage treatment facilities for this site.
The Hillsborough County Aviation Authority is not a unit within Hillsborough County government, but is an independent entity established by Special Act. The County has no control or authority over the Aviation Authority's creation of development plans, but the County may approve or disapprove these plans after they have been created by the Aviation Authority and submitted to the County. The Authority's development plans for expansion of Vandenberg Airport provide for runway expansion, taxiways, aprons and parking for aircraft and hangar expansion. As part of this expansion, the Aviation Authority has removed 51 individual septic tanks from homes located on lands which have been acquired, and which now comprise part of Vandenberg Airport. There is no record of any problems with the three residential septic tanks formerly located on this site for 25 to 30 years. The Aviation Authority's plans do not include construction of a sewage treatment plant or providing sewage treatment services in any manner other than with septic tanks, the permits for which must be obtained by its lessees. No centralized wastewater service is available to the proposed Sheriff's hangar at the Vandenberg Airport, and the closest sewer main will be more than 10,000 feet away upon its completion in 1990. The County's five year capital improvement plan does not include extension of this sewer line to the Airport.
The location for the Sheriff's hangar is currently zoned SPI-AP-V, which is a special airport district zoning classification created in September, 1989, for Vandenberg Airport. In this zoning district, manufacturing, processing and assembly activities are prohibited. Retail activities are also prohibited, as well as hotels, motels, repair services, physician and dental offices, bus and train terminals, lumberyards, warehouses, publishing and printing, and rental and leasing activities. This district is to be used for public use facilities, wastewater treatment plants and lift stations, aircraft landing fields, airport and airport related activities. "Airport" activities are defined to include fuel storage and transmission facilities, hangars, aircraft service, repair and maintenance facilities. "Airport related" activities are defined as:
Uses which are dependent upon proximity to the airport for effective performance, or which provide services to the airport..., including
but not limited to airport maintenance facilities and associated administrative offices; sales of new and used aircraft and aircraft parts; sales of aircraft fuels, lubricants, and other aircraft supplies; ... and other airport-related uses compatible with the operation of airports for public and private use.
Based upon five soil borings taken at the boundaries of, as well as within, the proposed hangar site, Darrell Hanecki, a geotechnical engineer who was accepted as an expert in engineering, found that the groundwater table was 3 to 4 feet below the existing ground surface in October and November, 1988. The seasonal high groundwater table was estimated to be approximately 12 inches above the existing ground water table at that time, but significant fluctuations in the groundwater level were anticipated due to seasonal variations in rainfall, runoff, and other site specific factors. The borings upon which
Hanecki's findings are based were performed in general compliance with accepted procedures for standard field penetration tests. Hanecki concluded that the soil conditions are suitable for the proposed hangar if constructed on a shallow footing foundation with special site preparations.
William Fernandez, who was accepted as an expert in civil engineering, developed a redesign of the County's septic tank and drainfield in support of its variance request in order to address concerns expressed by the Department's representatives concerning soil conditions on site. It is proposed that the septic tank and drainfield site will be excavated to a depth of 6 feet, and all clays will be removed. The site will then be backfilled with clean materials in order to allow the drainfield to percolate through these clean materials from three mounded drains which will be located in a two foot high mound constructed above the original grade. A pump will be used to lift the effluent from the tank to the drainfield. The septic tank will have a 750 gallon capacity. It is projected that 8 people will use this septic tank each day, and that each person will cause 25 gallons of sewage per day to be deposited in the system, or a total of 160 gallons of sewage per day. Only domestic wastes from the hangar restrooms will go into the system. Oils, greases and other substances used in aircraft maintenance and repair will be separated and carried to a retention pond through a system of trenches. After hearing the testimony of the County's expert witnesses about the surface water management system to be constructed on site, the Department's environmental specialist, Gary Schneider, testified that he was no longer as concerned about the possibility of oils, greases and other hazardous materials getting into the septic tank system. The County has also applied to the Southwest Florida Water Management District for a surface water management permit, and must receive that permit for this proposed hangar at Vandenberg Airport.
The Department seeks to rebut the expert testimony offered by the county primarily with the testimony of Robert Blanco, supervisor of the county health department's septic tank permit program, who was neither tendered nor accepted as an expert, as well as a letter from Richard Ford, resource soil scientist with the Soil Conservation Service, dated September 18, 1989, who took one soil boring and concluded that the soil identified was poorly drained to very poorly drained Chobee loamy sand. Ford was not present to testify. Blanco agreed with Ford's conclusion, expressed in his letter, that the seasonal high water table on this site will come to the surface, or within 10 inches of the surface, for 2 to 6 months each year, causing ponding to occur.
Based upon the demeanor and qualifications of the witnesses who testified at hearing, it is specifically found that the testimony offered in support of the County's application, and in particular the expert testimony of Hanecki and Fernandez, is more credible and is given greater weight than the testimony offered on behalf of the Department, particularly the testimony of Blanco. Blanco was not qualified or tendered as an expert in any field, and therefore, he was only competent to offer fact testimony. He speculated, without any supporting evidence in the record, that the septic tanks formerly on this site were not built to Code specifications and probably did not work, although there is no evidence of any complaints about these septic tanks during the 25 to 30 years they were in operation. Blanco also insisted that standardized texts describing soil types over large geographic areas are more reliable than actual soil borings on site, although he could not render an expert opinion in this regard. The letter from Ford offered by the Department was not supported by other competent, substantial, credible evidence, and in any event was based upon only one soil boring as opposed to five borings conducted by Hanecki in accordance with generally accepted practices. Therefore, it is
found that the groundwater table on this site is 3 to 4 feet below the existing ground surface, and the seasonal high groundwater table is approximately 12 inches above the existing groundwater table, although it does fluctuate. It was undisputed at hearing that the soils on site are Chobee 10, which is poorly to very poorly drained soil, but the County's redesign of the proposed septic tank and drainfield reasonably and adequately accounts for, and accommodates, this condition by excavating to a depth of 6 feet and backfilling with clean materials, and by placing three drains in a mounded drainfield built two feet above the existing ground level. This redesign complies with the requirements and provisions of Chapter 10D-6, Florida Administrative Code.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. As the applicant for a permit, the County has the burden of proof in this proceeding. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
The Department has the statutory responsibility to consider applications for the construction and installation of onsite sewage disposal systems, and to issue permits for such systems when all statutory and rule criteria have been met by the applicant. Section 381.272(1), Florida Statutes. In certain cases, the Department may also consider and grant variances which are less restrictive than the criteria which would otherwise apply when no reasonable alternative exists for the treatment of sewage, and the system discharge will not adversely affect the public health or degrade ground or surface waters. A Variance Review Board is established to consider such variances and to make recommendations to the Department. Section 381.272(8), Florida Statutes; Rule 10D-6.045, Florida Administrative Code.
Section 381.272(9), Florida Statutes, was amended effective July 1, 1989 by Section 14, Chapter 89-324, Laws of Florida, to provide:
No construction permit may be issued for an onsite sewage disposal system in any area zoned or used for industrial or manufacturing purposes, or its equivalent, where a publicly owned or investor
owned sewage treatment system is available, or where a likelihood exists that the system may receive toxic, hazardous, or industrial waste. In areas which are either zoned, rezoned,
platted, or subdivided for industrial, manufacturing or equivalent purposes after the effective date
of this act, the department shall not authorize onsite sewage disposal system construction...
Based upon this statutory provision, the Department urges, first, that the County's application must be denied due to the zoning of the airport property. It is the position of the Department that the activities which, by definition, may be conducted on this site are equivalent to industrial or manufacturing activities. However, the County properly points out that manufacturing, processing and assembly activities are specifically prohibited in SPI-AP-V zoning, which is the zoning classification applicable to Vandenberg Airport. Additionally, the County's zoning code also prohibits warehouse,
lumberyard, repair services, and related activities. This zoning classification is to be used for "airport" and "airport related," activities, and as those terms are defined, they do not include manufacturing or industrial activities.
The plain meaning of the terms used in the County's zoning code should be given their usual and customary effect. When those terms clearly and unambiguously prohibit manufacturing, processing and assembly activities in the zoning district relevant to this proceeding, there is no basis to conclude that such plain meaning should be ignored and another interpretation applied to those terms, especially when the County's interpretation of its own ordinance is consistent with that plain meaning. P. Crosby Associates v. State Board of Independent Colleges, 506 So.2d 490 (Fla. 5th DCA 1987); Department of Environmental Regulation v. Goldring, 477 So.2d 532, 534 (Fla. 1985); Gar-Con Development, Inc. v. Department of Environmental Regulation, 468 So.2d 413, 414 (Fla. 1st DCA 1985); Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716, 719 (Fla. 1983); Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA 1981). The Department's interpretation is without foundation, and it is concluded that Section 381.272(9) does not preclude the approval of the County's permit application based upon the activities to be performed on, or zoning of, the subject property.
The Department next urges that there is a reasonable likelihood that hazardous, toxic, or industrial waste may be received in the County's proposed system. However, after having heard the testimony at hearing concerning the surface water management system which will be constructed to separate any oils and greases from the septic tank and drainfield system, the Department's environmental specialist concluded that he was less concerned about the likelihood of prohibited substances entering the system than he had been. The County offered competent substantial evidence to support its position that this system will be used only for domestic waste from restrooms at the Sheriff's hangar, and that hazardous, toxic and other dangerous substances will be diverted through a system of trenches to a separate retention pond. The Department did not support its concerns on this point with competent substantial evidence, and there is, therefore, no basis to conclude that Section 381.272(9) precludes the approval of this permit application based upon any established likelihood of prohibited dangerous substances being received by the County's proposed septic tank and drainfield system.
Finally, it is the position of the Department, as argued in its proposed recommended order, that the proposed system cannot conform to Rule 10D- 6.047, Florida Administrative Code, which sets forth site evaluation criteria to be used in the Department's review of applications for onsite sewage disposal, or septic tank, permits. This argument is based primarily upon the testimony of Blanco and the letter from Ford, of the Soil Conservation Service, both of which have been found to be less credible and persuasive than the competent, substantial, expert testimony and evidence received on behalf of the County.
See Findings of Fact 11 and 12.
It has been found that the groundwater table on this site is 3 to 4 feet below the existing ground surface, and the seasonal high groundwater table is approximately 12 inches above the existing groundwater table, although it does fluctuate. This would place the groundwater table approximately 2 to 3 feet below the existing ground surface at times of seasonal high groundwater. The drainfield to be constructed by the County, according to its redesign, will be above the ground surface in a two foot mound. Thus, the bottom of the drainfield will be 2 to 3 feet above the seasonal high groundwater level. This
design complies with the provision of Rule 10D-6.047(2) which requires a 24 inch separation between the bottom of the drainfield and the water table during the wettest season of the year.
Rule 21D-6.047(1) provides that the effective soil depth throughout the drainfield installation site must extend 42 inches or more below the bottom surface of the drainfield. However, it is recognized that limited or severely limited soils, which would not otherwise allow septic tank installation due to their poor absorption capabilities, may be replaced by excavation and backfilling with clean materials. In this instance, Rule 10D-6.047(1)(c) specifies that the resulting soil profile must be satisfactory to a minimum depth of 54 inches below the bottom surface of the proposed drainfield, rather than the usual 42 inches. See footnote 3 to Table IV, incorporated by reference in Rule 10D-6.047(1)(c). In this case, it was established that the County will excavate and backfill to a depth of 6 feet, and that the drainfields will be placed in a 2 foot mound at ground level. This will provide for a soil profile which will be satisfactory to a depth of 72 inches, which exceeds the applicable requirements of the Department's rule. Additionally, the 2 foot mound proposed by the County is less than the 3 foot mound height allowed by Rule 10D- 6.049(3)(b), and therefore, the County could provide 12 additional inches of separation and satisfactory soils, if necessary. Thus, the County has presented, and supported with competent substantial evidence a reasonable redesign of its proposed septic tank and drainfield system for Vandenberg Airport which fully complies with the requirements of. Rule 10D-6.047.
In reviewing this application, it is also important to consider two additional facts established at hearing. First, there are no reasonable alternatives for the treatment of sewage waste at this site. The nearest sewer main is 10,000 feet away from Vandenberg Airport, and there are no plans to extend the sewer main to the Airport in the next five years. Second, the parties stipulated that the Airport location of the Sheriff's hangar is imperative to the duties of the Sheriff's Department, and there are no alternatives to this location without greatly increasing the Sheriff's response time to emergencies and other service calls. It is in the public interest, therefore, for this location to be maintained for the aviation unit. These additional factors also support the issuance of this permit. See Section 381.272(8), Florida Statutes, and Rule 10D-6.045(3), Florida Administrative Code.
The Department's proposed denial of this permit application is based upon an unreasonable and arbitrary interpretation of Section 381.272(9), Florida Statutes, and Rule 10D-6.047, Florida Administrative Code, which ignores other relevant provisions of Chapter 381. Section 381.291, Florida Statutes, specifically authorizes the Department to issue corrective orders for septic tank systems when it finds, through investigation, that any such system constitutes a nuisance or menace to the public health. Additionally, Rule 10D- 6.041(6) specifies that a permit remains valid only for the use permitted according to the terms of the permit, and if such use changes, the system must be upgraded to accommodate such change. Thus, the Department has ample authority to take corrective action if the County does not comply with the terms of this permit, or if a nuisance or menace to public health occurs, and these additional powers of the Department must be read and considered in pari materia with Section 381.272(9). See Kearney Development Co., et al. v. Department of Health and Rehabilitative Services, DOAH 89-0263, Final Order of DHRS filed July 11, 1989, which does not vary conclusions of law on this point contained in the Recommended Order issued May 18, 1989.
Based upon the foregoing, it is recommended that the Department enter a Final Order granting the application of Hillsborough County for a permit for an onsite sewage disposal system (septic tank and drainfield) for the Sheriff's Department hangar at Vandenberg Airport.
DONE AND ENTERED this 24th day of October, 1989 in Tallahassee, Florida.
DONALD D. CONN
Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3776
1. Adopted in Finding 1.
2-7. Adopted in Findings 6, 7.
3-4. Adopted in Finding 2.
Michael J. Morrison, Esquire Assistant County Attorney 725 East Kennedy Boulevard Tampa, Florida 33602
Raymond R. Deckert, Esquire
W. T. Edwards Facility 4000 West Buffalo Avenue Room 500
