STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KYLE BROTHERS LAND COMPANY INC.,.)

)

Petitioner, )

)

vs. ) CASE NO. 76-607

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Hearings were held pursuant to notice in the above styled cause on May 19, 1976 and July 8, 1976 in the offices of Kyle Brothers Land Company, Inc., 165 Madeira, Coral Gables, Florida and the offices of the Division of Administrative Hearings, Collins Building, Tallahassee, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This Hearing was held to determine whether the Petitioner should be granted permits to excavate canals on Big Pine Key, Monroe County, Florida, pursuant to its application filed with the Department of Environmental Regulation. This Hearing was held under the authority of Chapter 403, Chapter 253, and Chapter 120, Florida Statutes.

APPEARANCES

For Respondent: David Gluckman, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida

For Petitioner: Tom R. Hayward, Esquire

Post Office Box 927 Tallahassee, Florida 32301

FINDINGS OF FACT

1. Kyle Brothers Land Company, Inc. filed its application with the Department of Environmental Regulation to excavate four canals and to unplug two canals which they had already dug within its development in Port Pine Heights located on Big Pine Key, Monroe County, Florida. The application of Kyle Brothers Land Company, Inc. was introduced as Composite Exhibit No. 1 and a plat of the proposed development was introduced as Exhibit 9.

   
   

2. The proposed activity would be constructed on Class 3 waters as defined in Chapter 17-3, F.A.C.

3. Test data submitted shows that the water quality of the water in the existing canals meets or exceeds the standards established in Section 17-3.09, F.A.C.

   
   

4. The proposed canals, as well as the existing canals, are being developed as residential home sites.

   
   

5. Two potential threats exist to the maintenance of water quality standards within the canals. The first threat is the short-term effect of increased turbidity of the waters due to the construction of the proposed activity. The second threat is the long-term effect of the increased pollution of the waters resulting from waste disposal through proposed septic tank systems to be used in the residential home sites adjoining the proposed and existing canals.

   
   

6. The permit application appraisal, Exhibit 2, indicates that the short- term effects of increased turbidity could be controlled by the use of plugs, screens, and daily testing for turbidity and dissolved oxygen.

   
   

7. The evidence further shows a variance in the depth of the existing canals and the two plugged canals. The two plugged canals and several of the existing canals have a depth greater than the central canal. The variance in depth permits the accumulation of debris and silt in the finger canals which under certain conditions could be stirred up and become suspended in the waters of the canals increasing the turbidity of the canals and violating the water quality standards. To prevent this from occurring these canals would have to be filled to bring them to the depth of the central canal.

   
   

8. The long-term threat to water quality in the canals is the introduction into the canals of nutrients and chemicals attributable to surface water runoff and the proposed septic tank systems to be utilized on the residential home sites. Control of surface water runoff can be obtained by backs loping the uplands away from the canals. The control of nutrient loading associated with the septic tank systems is more complex.

   
   

9. The Declaration of Restrictions for Port Pine Heights, Exhibit 7, recites that sewage disposal shall be by septic tank or central disposal plant. However, the plans submitted by the Applicant do not indicate any provision for establishment of a central disposal plant. Further, under the provisions of the deed restrictions there is no requirement that a resident of Port Pine Heights use a central disposal plant even if such a system were available.

   
   

10. The current residents of Port Pine Heights currently use septic tank waste disposal systems; however, the number of current residents is substantially less than the number of residents that Port Pine Heights is designed to accommodate.

    
    

11. The disposal of sewage by septic tanks will result in the introduction in the canal waters of partially treated effluent through exchange with subsurface waters in the porous limestone substrata present in the area.

    
    

12. To maintain the water quality at the required level, the waste effluent from the residential development must be prevented from entering into the canal.

    
    

13. Because of the substantial difference in the level of development existing in Port Pine Heights currently and the potential level of development,

    the test data and the projections based upon that data do not give reasonable assurances that the increased pollutions attributable to the use of septic tanks would not violate water-quality standards.

    
    

    CONCLUSIONS OF LAW

    
    

14. Section 17-4.28(3), F.A.C., provides that the applicant for a dredge and/or fill permit shall affirmatively provide reasonable assurances to the Department that the short-term and long-term effects of the activity will not result in violation of the water-quality criteria, standards, requirements and provisions of Chapter 17-3, F.A.C.

    
    

15. Section 17-4.07, F.A.C., provides that a permit may be issued only if the applicant affirmatively provides the department with reasonable assurances that the construction, expansion, modification, operation or activity of an installation will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations.

    
    

16. Section 17-3.09, F.A.C., provides the water-quality standards for Class 3 waters, which includes the standard that the sewage, industrial or other waste, shall be effectively treated by the latest modern technological advances as approved by the regulatory agency.

    
    

17. The data presented based upon field measurements taken at the proposed site indicates that the present water quality meets or exceeds Departmental standards; however, this data was taken when only a small fraction of the proposed homes had been constructed. The activity of this installation will be for use as residential home-sites; and as such, evaluation of the long-term effects must be based upon the conditions assumed to exist upon full development of Port Pine Heights.

    
    

18. Although the data presented in support of the application reveals many favorable factors effecting the exchange of waters in the canal, the lack of present development and the resulting sparcity of data on waste pollution does not give a reasonable picture of the long-term effects on water quality of the proposed activity.

    
    

19. In the absence of reasonable assurances that a suitable treatment facility was available and that the residents would be required to use such a facility, the Applicant has not carried its burden of demonstrating no violation of water-quality standards with long-term use will occur.

RECOMMENDATION

Until the Applicant makes a reasonable, affirmative showing that the long- term effect of the activity will not violate the water-quality standards, the application should be denied.

DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

KYLE BROTHERS LAND COMPANY, INC.

Petitioner,

vs. CASE NO. 76-607

DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

RECOMMENDED ORDER

On October 22, 1976, the duly appointed Hearing Officer in the above styled matter completed and mailed to the Department and all parties a Recommended Order, consisting of findings of fact, conclusions of law and recommendation, a copy of which is attached hereto as Exhibit "A".

Pursuant to Section 17-1.26(2) , Florida Administrative Code, and Section 120.57(1)(a)8, Florida Statutes, the parties were allowed fifteen (15) days in which to present written exceptions to the Recommended Order. The Petitioner, through his attorney, submitted a responsive pleading, entitled "Response to Recommended Order Submitted by Stephen F. Dean, Hearing Officer, Division of Administrative Hearings, Docket No. 76-607", on November 9, 1976. The Department, on November 16, 1976, submitted a reply thereto, entitled, "Department of Environmental Regulation's Reply to Petitioner's Response to Hearing Officer's Recommended Order."

After written notice to the parties, the Recommended Order came before the Secretary, as head of the Department, on December 20, 1976, for entry of the final agency order in this matter. At that time oral argument was presented on behalf of the Petitioner and the Department, and the Petitioner requested the opportunity to submit additional documentation for the purpose of overcoming the objections of the Hearing Officer. The final agency order in this matter was therefore deferred pending receipt and consideration by the Secretary of such documents.

Pursuant to Section 120.57(9) Florida Statutes, the following guidelines apply to the rendition of this final order:

The agency may adopt the recommended order as the agency's final order. The agency in its final order may reject or modify the

conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

An effort has been made to fairly apply these guidelines. After consideration of the record, the exhibits, pleadings, Recommended Order and supplemental documents which have since been submitted by the Petitioner, it is evident that reasonable assurances have not been provided by the Petitioner that the long-term effects of the proposed activity will not result violation of the water quality standards and requirement, contained in Department rules.

This conclusion is in accordance with the Hearing Officers Recommended Order, and is incorporated by findings of fact, paragraphs 5, 8, 9, 10, 11, 12 and 13; conclusions of law, paragraphs 1 - 6; and the recommendation. The Hearing Officer concluded, on the basis of the evidence presented at the hearing to him, that the use of septic tanks within the Port Pine Heights subdivision, as provided for in the recorded Declaration of Restrictions "will result in the introduction in the canal waters of partially treated effluent through exchange with subsurface waters in the porous limestone substrata present in the area", and that "to maintain the water quality at the required level, the waste effluent from the residential development must be prevented from entering into the canal." Findings of fact, paragraphs 11 and 12.

A close examination of the Hearing Officer's Recommended Order, especially at findings of fact, paragraph 9, and conclusions of law, paragraphs 3 and 6, reveals the intent of the Hearing Officer to require, as reasonable assurance that water quality standards will be met, that Petitioner install, and require to be used by all residents within the 250 lot portion of this subdivision, a "suitable treatment facility", at which "the sewage, industrial or other waste(s) shall be effectively treated by the latest modern technological advances as approved by the regulatory agency" (DER). The referenced facility is commonly known as a sewage treatment plant. This conclusion on the part of the Hearing Officer was made after a full evidentiary hearing, and is supported by competent substantial evidence of record.

Petitioner, at oral argument before the Secretary on December 20, 1976, requested the opportunity to submit additional documents and contracts for the purpose of providing reasonable assurances, as set forth in the Hearing Officer's Recommended Order. Thereafter, Petitioner submitted to the Secretary twelve (12) documents, entitled "Modifications of Agreement", together with copies of twelve (12) sales contracts for the fifteen lots heretofore sold within the 250 lot subdivision.

These documents, while purportedly prohibiting the use of septic tanks within the project area, are insufficient in that they do not provide reasonable assurances that state water quality standards will be met and that water pollution will not result from the proposed activity.

The "Modifications of Agreement" specifically states, at paragraph 6:

Kyle Brothers Land Co., Inc., shall cause to be placed on public record a restrictive covenant to run with the real property prohibiting sewage disposal by means other than connection to a central sewage disposal plant or individual sewage disposal system which shall not include a septic tank. (Emphasis added)

These "contracts" do not provide for the installation by Kyle Brothers Land Co., Inc., of a sewage treatment plant in the project area, which is the inherent defect of the proposed activity, as expressed in the Hearing Officer's Recommended Order.

At most, these "contracts" would require future individual land purchasers to install and connect to a central sewage treatment plant. In light of the sparse development to date in the subdivision (3 percent of 250 lots), and the cost to be borne by the current residents in installing such a plant, there have been no reasonable assurances made to the Department that one would be installed. Rather, the ambiguous language, "or individual sewage disposal system which shall not include a septic tank", would probably determine the actual method of sewage disposal ultimately utilized.

The Department, which issues permits to and regulates sewage disposal facilities throughout the State, is uncertain as to the exact nature of the individual sewage disposal systems which are contemplated in these "contracts". Had such a phrase been modified with the language "as approved by the Department of Environmental Regulation", the Department could have assured the eventual definition of the phrase "individual sewage disposal systems" would be acceptable with respect to its effects on the quality of state waters.

Petitioner, however, is not agreeable to such modification. The finding that the substrate characteristics of the project area is porous limestone supports the seriousness of this omission from the "contracts". Reasonable assurances have, additionally, not been provided to the Department that said undefined "individual sewage disposal systems" would not result in water quality violations. No information, other than the documents referred to above, were submitted to the Secretary after the conclusion of the evidentiary hearing held on this matter.

Since the Department is uncertain as to the exact meaning of an "individual sewage disposal system other than a septic tank", it is reasonable to conclude that the individual purchasers who signed these "contracts" are equally 'uncertain as to the precise effect of their agreements. This fact may render the "contracts" legally unenforceable in Florida, as explained in the following:

In order to form a contract, the parties must have a definite and distinct understanding, common to both, and without doubt or difference. Unless all understand alike, there can be no assent, and therefore no contract. 7 Fla. Jur., Contracts Section 14 (1976).

It is important to note that the Petitioner, by means of said "contracts", is essentially attempting to shift the burden of assuring compliance with state

water quality standards from itself to future individual, primarily out-of- state, land purchasers. The burden of assuring compliance, as referenced by Chapter 403 and Department rules, is more properly placed upon the permit applicant.

Even assuming said "contracts" with the individual buyers are legally enforceable, and the ambiguity in the language is resolved by a court of law, this may not be the case for the some 235 lots yet unsold by Kyle Brothers Land Co., Inc. For the purpose of providing the required "reasonable assurances" for these lots, the Petitioner entered into and submitted an agreement executed by and between itself. In that Florida law is clear that at least two parties are required to form a contract, it is equally clear that Kyle Brothers cannot contract with itself to impose such restrictions intended to provide "reasonable assurances". 7 Fla. Jur., Contracts Section Il (1976). Therefore, the "contract" with the most far-reaching consequences, as submitted to the Secretary, would be void and lack effect.

For the above reasons, it is clear that the Petitioner has failed to provide reasonable assurances that the long-term effects of the proposed activity would not result in violation of state water quality standards. Neither has it provided competent and reliable evidence to overcome the deficiencies of its project as determined by the Hearing Officer after a full evidentiary hearing.

Having considered the Recommended Order, including findings of fact and conclusions of law, together with the pleadings, exhibits and record in this case, it is, therefore,

ORDERED by the STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION as

follows:

1. The findings of fact and conclusions of law contained in the Recommended Order (Exhibit A), are hereby adopted and approved.

   
   

2. The Recommendation contained on page 4 of the Hearing Officer's Recommended Order is hereby adopted and approved.

   
   

3. The Application submitted by Petitioner for a permit to excavate four canals, and to unplug and connect two existing canals to waters of the State, as part of its development of Port Pine Heights subdivision located on Big Pine Key, Monroe County, Florida, is hereby denied.

DONE AND ENTERED this 20th day of January, 1977.

JOSEPH W. LANDERS, JR.

Secretary

State of Florida Department of Environmental Regulation

2562 Executive Center Circle, East

Montgomery Building Tallahassee, Florida 32301

COPIES FURNISHED:

Carole Haughey, Esquire Department of Environmental

Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Tom R. Hayward, Esquire Attorney for Petitioner Post Office Box 927 Tallahassee, Florida 32301

Docket for Case No: 76-000607

Orders for Case No: 76-000607