STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY R. PEDRONI, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7175

)

DAWSON DEVELOPMENT COMPANY/ )

HAMMOND FOREST and STATE OF ) FLORIDA, DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on May 14, 1994, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Gary R. Pedroni, pro se

8682 Hammond Forest Drive Jacksonville, Florida 32221

For Respondent Carl D. Dawson, Sr., Esquire Dawson: 320 East Adams Street

Jacksonville, Florida 32202

For Respondent Donna M. La Plante, Esquire

Agency: Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF ISSUES

Whether the Department of Environmental Protection should grant permit number 162205542 to dredge, fill, and construct a house on Lot 34, Hammond Forest Subdivision, Jacksonville, Duval County, Florida.

PRELIMINARY STATEMENT

The Department of Environmental Protection (DEP), gave notice of its intent to issue Permit Number 162205542 to the Dawson Development Company, Inc., (Dawson) to dredge, fill, and construct a house on Lot 34, Hammond Forest Subdivision, in Duval County, Florida.

Notice was provided to the adjoining property owners pursuant to statute by DEP, and Petitioner requested an administrative hearing on December 6, 1993.

DEP forwarded the case to the Division of Administrative Hearings on December 28, 1993. After responses were received to the Initial Order, the case was noticed on February 10, 1994 for hearing to be conducted on May 11, 1994. The case was heard as noticed.

Testimony was received from the Petitioner, his wife, and several property owners residing in Hammond Forest regarding reoccurring flooding in the development. Petitioner, who is a contractor, testified concerning the elevations of the area surrounding the proposed permit site, and introduced Petitioner's Exhibits 1-25, A-1, C-1, and C-2. The Department presented the testimony of its administrator who was qualified as an expert in the impacts of dredge and fill actions on wetlands. Carl Dawson, Jr., and Michael Antonopoulos, the Engineer of Record for the development, testified in behalf of the applicant, and introduced Dawson's Composite Exhibit 1. The Hearing Officer gave notice of his intent to take official notice of Chapter 373, Florida Statutes.

The parties stipulated that the applicant had provided reasonable assurance to the Department that the project would not violate subsections (a)(2),(4),(5),(6), and (7) of Section 373.414(1), Florida Statutes; that the project would not result in cumulative impacts prohibited by Section 373.414(8)(b) and (c), Florida Statutes; that the project will not result in adverse secondary impacts to these wetlands prohibited by Section 373.414(8)(a), Florida Statutes; and that Dawson has provided reasonable assurance that state water quality standards will not be violated in accordance with Section 373.414(1), Florida Statutes. The stipulation of the parties is accepted to the extent that it is not contrary to the evidence produced.

The issue is whether the proposed project would violate section 373.414(1)(a)1. and 3., Florida Statutes.

Both Respondents filed proposed findings which were read and considered.

Appendix A states which of those findings were adopted, and which were rejected and why.

FINDINGS OF FACT

1. On October 16, 1992, Dawson filed an application for a permit to demuck and fill approximately 1250 square feet, and grade and sod to natural elevation approximately 3000 square feet of previously impacted wetlands adjacent to an unnamed tributary of Wills Branch, Duval County, in order to construct a pad for the construction of a single family residence. The site is Lot 34 of Hammond Forest Subdivision.

   
   

2. The loss of wetland function was mitigated by Dawson which agreed to place two acres of wetlands adjoining Ortega River in a conservation easement to the Department.

   
   

3. Following a review of Dawson's application, the Department issued permit # 162205542, and gave notice to the adjacent property owners, including Petitioner, who timely requested a formal hearing.

4. Hammond Forest Subdivision consist of 45 residential lots which have been developed except for two lots, one of which is lot 34, the site of the proposed permit. The Wills Branch drainage basin runs generally north to south through the subdivision. Petitioner's lot, lot 33, and the proposed site, lot 34, are at the southernmost edge of the subdivision and adjacent to a pond which is terminus of the southerly flow of surface waters into the Wills Branch system.

   
   

5. In October 1993, the Petitioner's home was flooded by surface water run off from the area north of Petitioner's home, including areas within and outside the Hammond Forest Subdivision.

   
   

6. Property owners living on the northern most portion of the subdivision have drainage problems, and have experienced sheet flow of water south across their property and water damage to their driveways.

   
   

7. In order to alleviate this problem, Dawson constructed a shallow swale along the northern border of the subdivision which is intended to catch the southerly flow of surface water and divert the water to the east where it is captured in a storm drain located at the northeast corner of lot 17. The storm sewer is suppose to move the water below ground due south to the vicinity of Hammond Forest Drive, the principle street in the subdivision, which runs west to east in front of the proposed site and the Petitioner's lot. At the street, this storm sewer is connected to the storm water collectors for the street.

   
   

8. The street storm sewers in the vicinity of the proposed site are inadequate to handle the volume of water which runs south down the cul-de-sacs into Hammond Forest Drive. The storm sewer are unable to handle the run off, and the water backs up in the sewer all the way to the northern collector located at the western end of the shallow swale.

   
   

9. The owner of lot 17 experiences sheet flow of storm water over his property, and down his drive. From there, the water follows Quail Walk south to Hammond Forest.

   
   

10. The property owners on the most easterly cul-de-sac, which is an extension of Hammond Forest, experience similar sheet flows of water. This water flows south down Hammond Forest towards the proposed site and the Petitioner's lot.

    
    

11. The surface water flow down Hammond Forest meets the flow from Quail Walk immediately across from the proposed site and the Petitioner's lot. At this point the overloaded storm sewers cannot handle the merging flow of the northern storm drain and the water collected on the lots and streets to the north. The water backs up and collects at the collector located between the proposed site and the Petitioner's lot where the swirling caused by the drain forces the water over and down the Petitioner's driveway.

    
    

12. During the record setting October 1993 rains, the water flooded the Petitioner's house. The water was so deep it was literally running in the front door and out the back door.

    
    

13. Subsequent to the October 1993 flood, Petitioner's contractor installed a lateral driveway drain. Since this drain was installed, there has not been a rain comparable to the October 1993 rains; however, in a serious storm after the drain was installed, the waters surged into the Petitioner's driveway and flooded his garage.

14. The proposed site is no higher than Petitioner's lot.

    
    

15. The storm water drainage system for the subdivision was approved by the St. John's Water Management District prior to construction of the subdivision which preceded the application for the instant permit. The collector at lot 17 was added after construction of the other storm sewers which were not designed to accept this added volume of water.

    
    

16. Expert testimony was received that the problem with the storm drains and sewers resulted from the absorption factor applied to the property which is upland from the subdivision which was unduly optimistic. Although the system was designed to be over minimum capacity, it is insufficient to handle the actual volume of water.

    
    

17. A storm sewer runs from the collection grate between lots 33 and 34 to the collection pond along a easement between the aforementioned lots. The size of this storm sewer is inadequate, and the collection of water in the vicinity of the collector between the proposed site and the Petitioner's lot would be alleviated by increasing the size of this sewer pipe which runs the depth of and adjacent to the proposed site. The majority of this easement lies in an area regulated by the Department, and repairs to the drain would require the Department's approval for dredge and fill.

    
    

18. The flow of surface storm water over Petitioner's lot is directly south into the collection pond.

    
    

19. The developer plans to avoid flooding problems on the proposed site by raising the building pad's elevation a half foot; however, this will not prevent sheet water flow over the lot during storms given the elevations on the remainder of lot 34 which are identical to those on Petitioner's lot.

    
    

20. The development of lot 34, which is currently is in a natural state, will alter the flow of water through the Wills Branch drainage basin by eliminating the natural vegetation and by allowing additional sheet flow over the developed lot into the collection pond.

    
    

21. This water will carry into the pond lawn chemicals, fertilizers and other contaminates which it picks up as it travels over lot 34.

    
    

22. A swale exists along the western edge of the Petitioner's property which prevents the lateral, east-west, movement of water between lots 33 and 34. A similar swale will be constructed between the two lots after lot 34 is filled and re-graded.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

24. The Department has jurisdiction over dredge and fill activities conducted in or connected to waters of the State pursuant to Chapter 373, Florida Statutes, and Rule 17-312, Florida Administrative Code.

25. It is agreed and the evidence shows that the proposed site is comprised of jurisdictional wetlands as defined by Section 373.019, Florida Statutes.

    
    

26. The applicant has the burden to show that the proposed project will not adversely effect the water quality standards of the State. The parties stipulated that the Department received reasonable assurances that the water quality standards of the state would not be violated. The parties have stipulated that the cumulative and secondary effects of the proposed project are not at issue in this case. The hearing officer accepts the stipulation to the extent that it was not contradicted by the evidence presented.

    
    

27. Section 373.414(1)(a), Florida Statutes, provides that the Department will consider (1) whether the activity will adversely affect the pubic health, safety, welfare or the property of others, and (3) whether the activity will adversely affect the flow of water in determining whether an activity which is in wetlands is contrary to the public interests.

    
    

28. The evidence adduced at the hearing showed that the proposed activity will adversely effect the public interests because (1) it will create another home site to be purchased by a member of the public which will have the same problems being experienced by the Petitioner; (2) it will increase the total amount of sheet flow over the lawns of residences into the waters of the state which will additionally degrade water quality; and (3) it will complicate the correction of the inadequate storm sewers by permitting a residence to be constructed on the other side of the drainage easement and delay correction of the problem which adversely effects the entire subdivision.

    
    

29. The inadequate storm sewers causes the sheet flow of water over residential lawns not only at Petitioner's location, but along the northern border of the subdivision which lies entirely within the Wills Branch drainage basin. These sheet flows result in the contamination of the storm water runoff with lawn chemicals and fertilizers. This water, which eventually flows into Wills Branch, degrades water quality. When this water floods the Petitioner's garage prior to flowing into the collection pond, the opportunity is created to contaminate the water with the substances which persons store in garages.

    
    

30. While the proposed development may not directly add to the water on the Petitioner's property, it will create another lawn and another garage over and through which the water can flow. The curb cut for the Petitioner's driveway is creating a path for the water to flood his garage. The street in from of lot 34 is at virtually the same elevation or slightly lower. Given the elevation of the proposed site, which is the same as the elevation of the Petitioner's lot, sheet flows will occur notwithstanding increasing the elevation of the house pad a half foot. The proposed house pad will be nothing more than a very small hill surrounded by land which will be regraded to the original elevation.

    
    

31. The flooding experienced by the Petitioner is the direct result of inadequate storm water drainage resulting from an undersized sewer pipe. Until the sewer is big enough to handle the water, the development of Lot 34 is not in the public interest.

32. The DEP has asserted that it does not address storm water runoff because it is surface water and is within the jurisdiction of the water management district. Section 373.414(3), Florida Statutes, establishes concurrent jurisdiction between the Department and water management districts over storm water runoff, and authorizes both to establish performance standards by rule for the use of wetlands as a repository for stormwater management. The Department may engage in formal rule making, or may engage in the formulation of agency policy through decisions in cases such as this one. Section 373.414(1)(a), Florida Statutes, provides sufficient objective criteria for agency action of this type.

    
    

33. More directly, the DEP has sole jurisdiction over wetlands, and the inadequate storm sewer involved literally lies within the jurisdiction of the Department, as does most of lots 33 and 34. If the water management district directed Dawson to make changes in the storm water system, Dawson would have to obtain a permit from DEP to dig up the sewer pipe between lots 33 and 34 because it lies almost entirely within the Department's jurisdiction. In sum, because of the location of the sewer pipe, the storm water discharge into the water's of the state, and the damage being cause now which will be increased with clearing of lot 34, the DEP has ample authority to exercise jurisdiction and require as a condition of the subject permit that the sewer pipe between lot 33 and lot 34 be increased to a size which will prevent flooding of those lots and sheet flows of water into the wetlands.

    
    

34. It is not in the public interests to grant this permit prior to requiring the correction of the storm drain/sewer system to prevent further flooding and sheet flows over the Petitioner's lot and the proposed site with the resultant negative impacts upon the public.

RECOMMENDATION

Based upon the consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That Permit No. 162205542 be denied, or conditioned by requiring the applicant to increase the size of the sewer pipe between lots 33 and 34 to eliminate the reoccurring flooding and sheet flows of water over lot 33 and lot 34, as proposed to be developed.

DONE and ENTERED this 30th day of June, 1994, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 30th day of June, 1994.

APPENDIX A CASE NO. 93-7175

Both of the Respondents submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why:

Dawson's Proposed Findings Recommended Order Paragraph 1 Paragraph 1

Paragraph 2 Paragraph 15

Paragraph 3 Paragraph 5

Paragraph 4,5 Paragraph 13

Paragraph 6,7 Contrary to best evidence DEP's Proposed Findings Recommended Order

Paragraph 1 Paragraph 1,2

Paragraph 2 Paragraph 4

Paragraph 3 Paragraph 3

Paragraph 4 Paragraph 5

Paragraph 5,6 Preliminary Stmt

Paragraph 7 Paragraph 15

Paragraph 8-11 Conclusions of Law

Paragraph 12 Paragraph 22

Paragraph 13,14 Paragraph 5, subsumed in 5

Paragraph 15 Conclusions of Law

Paragraph 16,17 Paragraph 22

Paragraph 18 Contrary to best evidence

Paragraph 19 Conclusions of Law

Paragraph 20,21 Contrary to best evidence

COPIES FURNISHED:

Gary R. Pedroni

8682 Hammond Forest Drive Jacksonville, FL 32221

Carl D. Dawson, Sr., Esquire

320 East Adams Street Jacksonville, FL 32202

Donna M. La Plante, Esquire

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, FL 32399-2400

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: 93-007175

Orders for Case No: 93-007175