STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAIL BOBZEIN, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6189

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

) PHIL SPERLI, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6190

)

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 March 30, 1993 in Melbourne, Florida.

APPEARANCES

For Petitioner: Jerry Gagliardi, Agent for

Phil Sperli and Gail Bobzein Post Office Box 541061

Merritt Island, Florida 32954

For Respondent: Sonia Nieves Burton, Esquire

HRS-District 7 Legal Office

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issue in these consolidated cases is whether the agency should grant variances from Rule 10D-6, F.A.C. regarding construction of on-site sewage disposal systems on the lots in question.

PRELIMINARY STATEMENT

After notification of disapproval of variance application numbers 6295 and 6296, Jerry Gagliardi, as agent for the two lot owners, requested a formal administrative hearing and the cases were forwarded to the Division of Administrative Hearings.

The cases were consolidated and set for hearing on December 9, 1992.

Petitioner failed to appear at the hearing, and in reply to an order to show cause stated that he had been ill. Respondent did not object to rescheduling the hearing, and it proceeded, after an amended notice.

At the commencement of the hearing, Mr. Gagliardi produced a notarized statement from the two petitioner lot owners authorizing his representation of them in the proceeding.

Mr. Gagliardi testified and presented no other witnesses. His exhibits #1, 2, 5 and 5a were received in evidence. Exhibits #3 and 4 were withdrawn.

Respondent presented the testimony of Gregory Daniel Wright, Roger Heupel and Kris Dexheimer. Respondent's exhibit #1, the application file, was received in evidence.

No transcript was filed and neither party submitted a proposed recommended order.

FINDINGS OF FACT

1. Jerry Gagliardi is the developer and engineer for an 8-lot subdivision on Merritt Island, Brevard County, Florida. Mr. Gagliardi is a self-employed civil and mechanical engineer.

   
   

2. The small subdivision has a long, narrow configuration, extending west to east. It is bounded on the north by an existing drainage ditch and a large tract of undisturbed wetlands. Its south boundary is a finger canal, and its east boundary is Pelican Creek. With the exception of the wetlands, most of the property in the area is already developed. There are no residences built yet on the eight lots.

   
   

3. Hook-up to an existing sanitary sewer system is available within one- quarter mile of the subdivision. The entire area, with several finger canals, is served by the sanitary sewer system.

   
   

4. Mr. Gagliardi planned to install on-site disposal systems (septic tanks) in the subdivision. When his plan was rejected he applied for variances for lots 1 and 2 in July 1992, stating economic hardship as the basis for the request.

   
   

5. The applications were reviewed by Gregory D. Wright, Supervisor for Brevard County Consumer Health Services and his staff. Several site visits were made and a site evaluation was completed.

   
   

   Mr. Wright recommended denial of the variance because the sanitary sewer system is available; the soils (mostly sand and shell) are unsuitable for on- site disposal systems; and the area, virtually surrounded by water, is environmentally very sensitive. Mr. Wright is also concerned that a variance

   for the two lots will establish a precedent for variances on the remaining lots in the subdivision. Mr. Wright also observed that there is an existing irrigation well on a neighboring lot within thirty feet of the proposed septic tank on lot #1. This well does not appear on Mr. Gagliardi's plans.

   
   

6. The Department of Health and Rehabilitative Services Review Group for Individual Sewage Disposal concurred with the local agency's recommendation after consideration of Mr. Gagliardi's hardship argument. The request was not considered to be a minor deviation from the minimum requirements of the law and regulations.

   
   

7. For approximately three years Jerry Gagliardi has been providing information on his development plans to the local county staff. He has become extremely frustrated with the process.

   
   

   However, he has still failed to produce the evidence which he must have to justify the variances he is seeking.

   
   

8. At the hearing, Mr. Gagliardi claimed that hook-up to the existing sanitary sewer system is impossible because there is insufficient elevation for gravity feed and there is not enough room on Banana River Drive for another sewer line easement. He did not submit evidence to support that claim and it is unclear whether he has made that claim to the local staff for their verification.

   
   

9. He has consistently claimed that hook-up to the existing system is prohibitively expensive. He has estimated that the cost of installing hook-up to the existing system would be $52,642 for the entire subdivision, or $6580.25 per lot.

   
   

   He has estimated that installation of aerobic on-site septic systems would cost $28,000.00 or $3500 per lot. This estimate does not include the cost of culverting the ditch along the north boundary of the property. The culvert may be necessary to meet the water body set-back requirements and, assuming that a permit would be granted for its construction, the culvert would substantially increase the cost of the septic tank project.

   
   

10. As recently as three weeks prior to hearing, Mr. Gagliardi provided information to the staff that the value of the lots in the subdivision is

    $60,000.00 each, for lots #1 through #6; and $115,000.00 and $120,000.00, for lots #7 and #8, respectively.

    
    

    At hearing he repudiated that information as being based on three year old appraisals. He now asserts that the value of the lots is closer to $40,000.00 each. Petitioner's exhibit #2 is a cover letter dated January 4, 1993, to Mr. Gagliardi from the Brevard County Property Appraiser. Attached to the letter are four property management print-outs reflecting the value of two lots as

    $35,000.00, and two others as $65,000.00. The record does not reflect which lots those are in the subdivision and there is no explanation for the inflated values provided to the staff after the printouts were received.

    
    

11. It is impossible from the confused and conflicting evidence provided at hearing to determine that the petitioners are entitled to a variance.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.

    
    

13. Section 381.0065(1), F.S. provides:

    
    

    381.0065 On-site sewage disposal systems; installations; condition. -

    1. The Legislature declares that it is the policy of this state to require that every on-site sewage disposal system, except

       approved on-site graywater systems, developed under the provisions of this act connect to a publicly owned or investor-owned sewerage system within 365 days after notification that such a system is available. Where a publicly owned or investor-owned sewerage system is not available, the Department of Health and Rehabilitative Services may issue permits for the construction or installation of on-site sewage disposal systems under conditions as described in this section. Provision shall be made, such as the inclusion of sewer utility easements and rights-of-way in a subdivision, to assure the eventual construction and utilization of a sewerage system in such subdivision. The developer of any lot that

       is developed under the provisions of this section shall provide advance notice of this requirement to the purchaser of such lot. The provisions of this subsection or any other provision of law to the contrary notwithstanding, a publicly owned or

       investor-owned sewerage system may, with the approval of the department, waive the requirement of mandatory on-site sewage disposal connection if it determines that such connection is not required in the public interest due to financial or public health considerations.

       
       

       This same text formerly appeared as Section 381.272(1), F.S. (1989).

       
       

14. Rule 10D-6.042(g), F.A.C. defines "available", in pertinent part:

    
    

    1. Available-a municipal or investor-owned sewerage system shall be deemed available for the connection of the building plumbing if all of the following requirements are met:

       1. The sewerage system is not under a Department of Environmental Regulation moratorium:

       2. The sewerage system has adequate hydraulic capacity to accept the quantity of sewage to be generated by the proposed establishment.

       3. For all single family residences or for establishments with estimated sewage flows of 600 or less gallons per day, a sewerage system shall be considered available if a sewer line exists in a public easement or right-of-way which abuts the property, and if gravity flow can be maintained from the building drain to the sewer line.

    
    

    Section 381.0065(4), F.S. and Rule 10D-6.046(7)(c), F.A.C. prohibit use of on- site waste disposal systems in a subdivision when an approved sewage system is available contiguous to the subdivision or within 1/4 mile.

    
    

15. Rule 10D-6.045, F.A.C. describes the process for variance applications:

    
    

    1. Applications for variance shall be submitted through the HRS county public health unit utilizing HRS-H Form 4057. Each application shall be accompanied by supportive materials and documents such as a copy of the property deed, site evaluation data, plans and specifications for the proposed system, a statement regarding the existence of a hardship, information regarding adjacent property and any other information necessary for rendering a decision. The applicant shall ensure that all information required by subsection 10D-6.044(3) is included with the application. A separate application must be filed and a separate fee paid for each lot, parcel, establishment, or building site considered for a variance. The burden of presenting pertinent and supportive facts shall be responsibility of the applicant....

       (emphasis added)

       
       

       After local review and recommendation, the application is referred to the state review committee, and the recommendation of the committee is made to HRS' Deputy Secretary for Health, or his designee.

       
       

       . . .

    2. Upon consideration of the merits of each application and the recommendation of the review board, the Deputy Secretary for Health or his designee 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 proper use of the on-site sewage disposal system will not adversely affect the

    health of the applicant, any persons using or living on the property, or other members of the public. An applicant must also show that the granting of a variance will not significantly degrade ground or surface waters. . . .

    (Rule 10D-6.045, F.A.C, emphasis added)

    
    

16. On-site systems may be installed no closer than 50 feet from a non- potable water well, among other set-back requirements. Rule 10D-6.046, F.A.C.

    
    

17. As found above, the applicant seeks waiver of the requirement that his subdivision be connected to an available sewage system. From the evidence he also appears to seek a variance from the set back requirements related to the existing non-potable well. The evidence presented does not establish his entitlement to a waiver for either lot.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

that the agency enter its final orders denying Petitioners applications for variances.

DONE AND RECOMMENDED this 11th day of May, 1993, in Tallahassee, 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 11th day of May, 1993.

COPIES FURNISHED:

Sonia Nieves Burton, Esquire Department of Health and

Rehabilitative Services District 7 Legal Office

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

Jerry Gagliardi, Agent for Phil Sperli and Gail Bobzein

Post Office Box 541061

Merritt Island, Florida 32954

Robert L. Powell, 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. Some agencies allow a larger period within 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: 92-006189

Orders for Case No: 92-006189