STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT G. PRIOR, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0970

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly designated Hearing Officer, in Gainesville, Florida, on May 11, 1992.

APPEARANCES

For Petitioner: Robert G. Prior, pro se

3106 Waverly Avenue

Tampa, Florida 33269

For Respondent: Ralph J. McMurphy, Esquire

Attorney at Law

1000 Northeast 16th Avenue Gainesville, Florida 32609

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether Petitioner is entitled to a variance so as to allow the installation of an on-site sewage disposal system (OSDS) on the Petitioner's property located in Dixie County, Florida.

PRELIMINARY STATEMENT

This cause arose on October 9, 1991, when the Respondent (Department) denied Petitioner's application number 6038 for a variance from the provisions of Rule 10D-6.047(6), Florida Administrative Code, with regard to Lot 24 of Hatchbend Upon Suwannee Subdivision in Dixie County, Florida. The Petitioner protested that denial and timely requested a hearing by letter of November 10, 1991.

An original application for a permit had been filed by the Petitioner with the Department with regard to Lot 24 for the purpose of installing an on-site septic tank disposal system (OSDS) on December 18, 1989. That permit application was denied and a timely request for hearing in that matter resulted in the permit issue being referred to the Division of Administrative Hearings under Case No. 90-6134. Ultimately however, that case was settled and a

stipulated dismissal was filed in that case. A final order adopting the settlement provisions in that proceeding was entered by the Department on February 25, 1991. The settlement agreement allowed the Petitioner to file an application for a variance, which the Petitioner filed on June 21, 1991. The denial of that variance application resulted in the instant proceeding.

The final hearing was ultimately conducted in this proceeding on May 11, 1992, in Gainesville, Florida, after an earlier scheduled hearing was continued by agreement of the parties. The Petitioner presented his own testimony and the Department presented the testimony of Paul Fross of the Dixie County Public Health Unit and Emily J. Wilson of the Department's District III Health Program Office. The Petitioner's contract for deed to his property, the original application for an OSDS permit, with attachments, the application for a variance, at issue herein, and the letter of denial directed to that application for variance were all admitted into evidence without objection. The Department's objections to other exhibits proffered by the Petitioner were sustained at hearing. Three photographs of the area of the Petitioner's property in the proposed installation site were taken and identified by Mr.

Fross as a witness at hearing and were offered by the Respondent. Those photographs were admitted into evidence.

Upon conclusion of the hearing the parties requested an extended briefing schedule, concomitantly waiving the requirement of Rule 28-5.402(4), Florida Administrative Code. Proposed findings of fact and conclusions of law, in the form of proposed recommended orders, were submitted by the Respondent agency and the Petitioner submitted a post-hearing pleading consisting of legal argument, but containing no separately stated proposed findings of fact. Nevertheless, those closing arguments in written form submitted by the Petitioner have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the owner of Lot 24 of Hatchbend Upon Suwannee subdivision, a platted subdivision in Dixie County, Florida. The Petitioner purchased the lot for residential purposes and seeks to install an on-site sewage disposal system (septic tank) (OSDS) on that lot for purposes of serving a single family residence. The Petitioner originally filed a permit application seeking a permit authorizing installation and operation of an OSDS for that property. That permit application was filed on December 12, 1989. It was denied and the Petitioner sought a formal hearing before the Division of Administrative Hearings to contest that denial, which became Case No. 90-6134. That case was ultimately settled between the Petitioner and the Department and no permit application was granted. Instead, the Petitioner filed the subject application for a variance from the requirements of then Section 10D-6.047(6), Florida Administrative Code. The variance application was filed on June 21, 1991, with regard to Lot 24 only. By letter of October 9, 1991, the Department denied the application for variance and the Petitioner timely requested a hearing pursuant to Section 120.57(1), Florida Statutes, to contest that denial.

   
   

2. Lot 24 of Hatchbend Upon Suwannee subdivision, owned by the Petitioner is located on the Suwannee River. The Petitioner submitted a report of the Suwannee River Water Management District, in evidence, which indicates that the subject property lies within the regulatory floodway of the Suwannee River. The two year flood elevation at that location is 19 feet above mean-sea level (MSL). The ten year floor elevation at the installation site is 29 feet above MSL. The elevation of the proposed septic tank system installation site is 17.5 feet above MSL.

3. Department personnel performed an inspection and an evaluation of the site. It was thus found and established by testimony and evidence, presented through witness Fross, that the water table level during the wet season is at or above the surface of the property at the installation site and the dry season water table level is approximately 6 inches below the surface grade of the property at the installation site. This is the reason, together with the fact that the property lies within the regulatory floodway and beneath the ten year flood evaluation of the Suwannee River for the river mile at the site, that the inspector recommended denial of a permit for an OSDS for the property.

   
   

4. The Petitioner maintained that the information originally submitted and obtained from the Suwannee River Water Management District had incorrectly indicated the river mile at the site. The ten year and two year flood elevations are calculated according to the river mile at a given site, river miles being measurements of the linear distance of the Suwannee River and the Suwannee River floor plain. However, if the lower ten year flood elevation prevailing at the river mile the Petitioner maintained equated with the project site was applicable, by the Petitioner's own admission, the site in question (and indeed any location on any of the nearby lots he owns) would be below that resulting ten year floor elevation level.

   
   

5. Ms. Emily Wilson testified on behalf of the Respondent. It was established that the education, experience and certification of Ms. Wilson as a registered sanitarian, together with her graduate and post-graduate degrees in the area of environmental science, accord her expertise in the areas of environmental protection, sewage disposal and sanitation and she was accepted as an expert in those fields. It was thus established that installation and operation of a septic system on the Petitioner's property would pose a threat to the ground and surface water in the vicinity of the site due to the high water table levels and the fact that the property, including the proposed installation site, is subject to frequent flooding. The exposure of the septic tank drainfield to ground or flood waters would allow the release of pathogens into those waters, which could be carried along into the ground or surface waters when the flood receded. These pathogens would endanger the health of the Petitioner, surrounding land owners and other persons through contamination of the drinking water supply. The pathogens could also endanger persons using the river for recreational purposes.

   
   

6. The Department produced photographs which were introduced into evidence establishing that the road leading to the property was underwater due to flooding in the spring of 1991. That road runs along the back of the Petitioner's property and is further removed from the river than the actual installation site where the Petitioner proposes to install a septic system. After the flood receded, the water marks on the trees in the area of the proposed installation site on the Petitioner's property indicate that the area had been submerged under approximately three feet of water. The property was established to be subject to frequent flooding.

   
   

7. Ms. Wilson is aware that other systems can potentially be used to adequately contain and treat sewage generated by a residence such as that the Petitioner envisions, including a closed system characterized by no sewage discharge. The applicant however has not submitted a proposal for such a system for consideration by the Department. She is unaware of any other system of sewage disposal that has previously been approved for use in low areas similar to that prevailing at the Petitioner's property and installation site.

8. The Petitioner purchased the property under a contract for deed. The contract for deed specifically states that the property was subject to frequent flooding at the time the Petitioner purchased the property and the Petitioner was aware of that. The Petitioner purchased the property in spite of that representation in the contract for deed.

   
   

9. The construction and use of a mounded septic tank and drainfield system designed to elevate the septic tank and drainfield a sufficient required distance above the groundwater table and the ten year flood elevation level could potentially be installed, but the system would require a very large, high mound. It was not shown that the dimensions of the lot would permit the installation of the required mound base pad, and mound itself, of a sufficient size to properly elevate the proposed system so that a permit could be approved. The mounded system required under proper design parameters provided for in the Department's rules would cause the mounded system to approach or even exceed the entire width of Lot 24.

   
   

10. A mounded system located in the regulatory floodway, as Petitioner's property is located, would require issuance of a separate permit from the Suwannee River Water Management District. There was no showing that the Petitioner sought such a permit nor any showing of the likelihood that such a permit could be granted at the time of the hearing. Additionally, the Department's rules require that a qualified engineer issue a certification with respect to the use of a mounded disposal system within the regulatory floodway which certifies that the insertion of fill material for constructing such a system in the floodway will not cause a rise in the level of the "base flood", also known as a "zero rise certificate." No such certification has been obtained.

    
    

11. In order to establish compliance with the requirement for granting of a variance set forth in the legal authority cited below, the applicant must establish, among other things, that there is no reasonable alternative to the installation of the system proposed. The applicant has presented no evidence to show that there are no reasonable alternatives to the system proposed. Rather, the testimony and evidence indicates that indeed there may be alternative disposal systems and methods available, although the proof was not developed in this proceeding to establish what those might be. The consideration of another location for the system on a different lot or installation site presently owned by the Petitioner or of an alternative type of treatment and disposal system might be feasible but would require a new site evaluation and submission of appropriate information which could establish that a specific alternative system and/or location is feasible, in terms of the requirements in the statute and rules that no deleterious impacts to the ground or surface waters in the vicinity of the site would occur. Such an effort would have to be the subject of a separate permit application and is not at issue in this variance proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

13. The Petitioner is seeking a variance from the statutory and regulatory requirements for granting of an OSDS permit for his property located on the Suwannee River in Dixie County, Florida. The Petitioner has the burden to

    establish proof requisite to show that he is entitled to a variance to construct the proposed system on the property in question.

    
    

14. The basic requirements for permits for OSDS systems are contained in Section 381.065, Florida Statutes (1991), formerly Section 381.272, Florida Statutes. The requirements for a variance, as contained in Section 381.0065(8)(a), formerly Section 381.272(8)(a), Florida Statutes, prohibit the granting of a variance unless it can be proven that (1) the necessary hardship condition was not caused intentionally by action of the applicant for the variance; (2) that there is no reasonable alternative for treatment of the sewage involved; and (3) that the discharge will not adversely affect the health of the applicant or the public or significantly degrade ground or surface water. In addition to the statutory conditions for variance, Section 10D-6.045, Florida Administrative Code allows the grant of a variance only when the variance would constitute a "minor deviation" from the established standards for the permitting for OSDS systems contained in Rules 10D-6.043-.049, Florida Administrative Code.

    
    

15. The Petitioner is seeking a variance from Section 10D-6.047(6), Florida Administrative Code, which requires, as pertinent hereto:

    
    

    "(2) The water table elevation at the wettest season of the year is at least 24 inches below the bottom surface of the drainfield trench or absorption bed. In addition, systems shall not be located where the wet season water table elevation and the area of the proposed system is determined to be at or above the elevation of the existing ground surface.

    * * *

    (6) The existing lot elevation at the site of the proposed system installation and any contiguous land referred to in Subsection 10D-6.046(4), shall not be subject to frequent flooding."

    
    

16. The rule prevailing at the time the application was filed, 10D- 6.047(6), Florida Administrative Code, also provided that the drainfield trench or absorption bed shall not be subject to frequent flooding based on ten year flood elevations. That provision was carried forward in a new rule enacted in April 1982, Section 10D-6.0471, Florida Administrative Code. That rule also provides that for lots or parcels created by the subdivision of land in accordance with applicable local government regulations prior to January 17, 1990, such as the Petitioner's lot, that if an applicant cannot construct a drainfield system with the absorption surface of the drainfield trenches or beds at an elevation equal to or above the ten year flood elevation that the Department shall issue a permit for an OSDS within the ten year flood plain of rivers, streams and other bodies of flowing water if all the following criteria are met:

    
    

    "(a) The lot is at least one half acre in size;

    1. The bottom of the drainfield trench or absorption bed is at least 36 inches above the two year flood elevation; and

    2. The applicant installs either: .

       There follows then a description of various alternative treatment and disposal systems in the rule. Thus the rule envisions a number of reasonable alternative treatment systems which an applicant can propose. If the applicant can prove that such treatment systems meet the criteria in the Department's rules in Chapter 10D-6.043 through .049 et. seq; then if the physical circumstances of the lot itself meets the criteria of the above referenced "new" rule, an actual OSDS permit could be issued by the Department.

       
       

17. The above-referenced variance criteria require that the applicant show that no such reasonable alternatives for sewage treatment exist and are feasible. In the instant case the applicant's proof contains no presentation regarding any alternative systems which have been considered or proposed as to whether they are feasible in relation to compliance with the Department's rules for sewage treatment and disposal, with emphasis on whether or not ground or surface waters would suffer an adverse impact in terms of public health of the applicant, surrounding land owners or others. Consequently, the variance application requirements have not been met by the applicant's proof in this case and, had this been a permit application itself, the applicant's proof did not show that one of these alternative systems could safely treat and dispose of the sewage involved in compliance with the Department's other rules in Chapter 10D- 6, Florida Administrative Code. If the applicant could make such a showing, which might be accomplished in a permit application proceeding, (not presently before the hearing officer), then this new rule will allow issuance of a permit for an OSDS system of that alternative type delineated in the rule, even though the site is below the ten year flood elevation.

    
    

18. The fact remains, however, that this is not a permit application and if it were such no proof has been submitted concerning the efficacy of such alternative systems envisioned by new Rule 10D-6.0471. As a variance application, the applicant has not offered proof that no such alternative systems could feasibly be used in terms of safeguarding ground or surface water and the public health.

    
    

19. In addition to the Petitioner's failure to show that no reasonable alternative treatment and disposal systems or methods are extant and feasible, the evidence establishes that the low-lying nature of the Petitioner's property subjects it to frequent flooding. The water table of the property is at or above the ground surface during the wet season. The property lies below the ten year flood elevation and is in the regulatory floodway as that is defined either under the prior rule definition (former Rule 10D-6.047) or the new definition referenced above. Because these characteristics of the site were shown to pose a likelihood that the discharge from a standard OSDS system inserted in the surface of the site would adversely affect the health of the applicant and the public or significantly degrade the ground or surface waters, the Petitioner failed to demonstrate that a variance grant would only constitute a "minor deviation" from the standards in the Department's rules in Chapter 10D-6, Florida Administrative Code which are designed to protect the health of the applicant and the public and to prevent degradation of ground or surface waters. Thus, that variance criterion of Rule 10D-6.045, Florida Administrative Code has not been met.

    
    

20. In addition to the Petitioner's failure to show only a minor deviation from the permitting standards, the Petitioner failed to demonstrate that the discharge from the installation and operation of an OSDS system would not adversely affect the health of the applicant and the public or would not significantly degrade ground or surface waters. The credible evidence in this case establishes that installation of a septic system on such a low-lying,

    flood-prone site as the Petitioner's would cause a significant risk to the health of the public and water quality. Thus, three of the above-referenced criteria for the grant of a variance have not been met and all must be complied with for a variance to be granted.

    
    

21. The Petitioner raised a question at hearing concerning use of one of the other lots he owns for the installation of a sewage disposal system. However the Petitioner has never filed an application, with supporting data, with respect to any other location or type of system. Such a proposal would require an application amendment or a new application, concerning which the Department could then evaluate and reach a decision as to whether a permit for such a site and system should be granted. The question of a variance for the lot and type of system for which the Petitioner applied for a variance is the only proposed location and type of system advanced with proper notice to the

Respondent and at issue in this proceeding, however. The proposed variance with respect to that property and system at issue must recommended to be denied for the reasons delineated above. Such a denial would be without prejudice, however, to consideration of a permit application for this or the other lots concerning other potential alternative systems, as delineated in new Rule 10D- 6.0471, Florida Administrative Code, which the Department is allowed to consider under that rule, for lots situated, as the Petitioner's, beneath the ten year floor elevation.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is therefore

RECOMMENDED: that a Final Order be entered denying the Petitioner's application for a variance from the statutory and rule requirements related to permitting, for the reasons found and concluded above, which denial should be without prejudice to a later permit application which might offer full consideration of potential, reasonable alternative sewage treatment and disposal systems and methods in the manner envisioned in Rule 10D-6.0471, Florida Administrative Code and other pertinent rules.

DONE and ENTERED this 24th day of August, 1992, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1992.

APPENDIX

Respondent's Proposed Findings of Fact:

All proposed finding of fact are accepted. The Petitioner presented no Proposed Findings of Fact but rather a posthearing pleading constituting, in effect, a closing legal argument.

COPIES FURNISHED:

Robert G. Prior 3106 Waverly Avenue

Tampa, Florida 33269

Ralph J. McMurphy, Esquire 1000 Northeast 16th Avenue Gainesville, Florida 32609

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 92-000970

Orders for Case No: 92-000970