STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WOODLAND ACRES-DENO P. DIKEOU, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0330

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on March 31, 1989 in Orlando, F1crida. The following appearances were entered:

APPEARANCES

FOR PETITIONER: Deno P. Dikeou, Pro Se

Liberty National Bank Building

502 N. Highway 17-92, Suite 200 Longwood, Florida 32750

FOR RESPONDENT: Raymond R. Deckert, Esquire

Department of Health and Rehabilitative Services

4000 West Buffalo Avenue 5th Floor, Room 500 Tampa, Florida 33614

BACKGROUND

This matter began when Petitioner applied for an onsite sewage disposal system permit in conjunction with the commercial development of his property in Polk County, Florida. Respondent denied the application, citing statutory and rule requirements mandating such denial except in instances of financial hardship or situations involving public health considerations. Petitioner then requested a variance due to the financial hardship he would endure by having to connect his commercial project to a publicly owned sewerage system.

Respondent's variance board reviewed Petitioner's request and recommended denial of the variance. A formal administrative hearing regarding the denial was requested by Petitioner and this proceeding ensued.

At hearing, Petitioner presented the testimony of three witnesses, including himself, and one evidentiary exhibit. Respondent presented testimony of three witnesses and one evidentiary exhibit. The parties jointly presented seven evidentiary exhibits. Official recognition of Rule Chapter 10D- 6, Florida Administrative Code, has been taken in the preparation of this recommended order. Respondent waived the filing of proposed findings of fact

and no proposed findings were timely submitted by Petitioner or received by the undersigned at the time of the preparation of this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. On October 13, 1988, Petitioner applied for a permit from Respondent for the operation of an onsite sewage disposal system in connection with a commercial project to be constructed on Petitioner's property in Polk County, Florida. Petitioner's application was disapproved that same day.

   
   

2. Respondent denied the application because a publicly owned sewer system was available to Petitioner. A sewage line of the City of Lakeland, Florida, exists within a public easement abutting Petitioner's property. That sewage line is about 10 feet from Petitioner's property line. Gravity flow from Petitioner's proposed facility to the sewer line can be maintained. The city's system is under no moratoriums from any governmental body which would prevent the addition of Petitioner to the system.

   
   

3. On October 17, 1988, Petitioner applied to Respondent's variance board, in accordance with provisions of Section 381.272(8), Florida Statutes, and Rule 10D-6.045, Florida Administrative Code. The variance application was considered by the board on November 3, 1988, and a recommendation that the variance be denied resulted. On December 12, 1988, Respondent notified Petitioner of the recommended denial of the variance application. The denial letter to Petitioner informed him that variances were granted for the relief or prevention of excessive hardship in those situations where there is a clear showing that the public health would not be impaired and pollution of groundwater or surface water would not result. The letter further stated that recommendation to deny variance was premised on the availability of public sewer to the property.

   
   

4. Existence of adequate drainage for the proposed on site disposal system on Petitioner's property is questionable. The water table during the wettest season of the year on the property is only 20 inches from the surface. During other parts of the year, the water table is 38 inches from the ground surface.

   
   

5. Two residences are presently situated on Petitioner's property and produce a flow to the present septic tank sewage disposal system of approximately 900 gallons per day. A commercial building also previously existed on the property and supplied a septic tank flow of approximately 700 gallons. The proof at hearing failed to establish whether the commercial building flow coexisted with the present residential flow.

   
   

6. Petitioner proposes to construct a "mini mall" consisting of four stores, each with one toilet, on the property. Since public usage of the toilets in the building is not anticipated to be frequent, Petitioner estimates that approximately 600 gallons of sewage flow will be generated on a daily basis.

   
   

7. Petitioner's property is presently served by the public water utility of the City of Lakeland. While the property lies outside the corporate city limits, it is bounded on two sides by property within the city limits on which restaurants, served by the city's sewage system, are situated. The city easement containing the sewer line runs along another side of the property which is contiguous to U.S. Highway 98.

8. Under current policy of the City of Lakeland, connection to the city sewage system is permitted only to property located in the city limits. Petitioner must agree to annexation by the city of his property in order to obtain connection to the sewage system. However, the city assesses impact fees in addition to costs of sewage connection and in Petitioner's situation the amount of impact fees anticipated to be levied by the city is approximately

   $53,000.

   
   

9. Petitioner estimates the value of his property when the "mini mall" is completed at $700,000. Estimated cost of construction, without consideration of the city's impact fees, will be $350,000. While Petitioner does not contemplate selling the property after the development is completed, he will be leasing the individual store facilities. The sole objection of Petitioner to denial of his request for a variance recommendation is that he will be forced to resort to joining the city's public sewage system and, by concomitantly accepting the city's annexation of his property, incurring the city's impact fees.

   
   

10. It is Petitioner's contention that the impact fees effectively make the city's system unavailable to him. Alternatively, Petitioner also contends that assessment of impact fees by the city will pose a financial hardship on him and increase the per unit rental or lease costs he must charge tenants.

    
    

11. Petitioner also contends that his commercial project will cause no adverse public health considerations because sewage flow from his facility to an on site sewage disposal system will be no more and possibly less than that presently flowing from the residences on the property to the existing septic tank system. This testimony is not credited due to the fact that anticipated drainage flow is an estimate by Petitioner with no demonstrated expertise in making such estimates; drainage at the proposed site location is questionable; and Petitioner's application states that the proposed site is located five feet from a public water well.

    
    

12. Petitioner asserts that facts of a previous decision of the variance board established policy which requires that the variance he has requested be granted. On May 19, 1988, the variance board recommended a variance be granted to an automobile dealership in Polk County to operate an on site sewage disposal system. Had the variance not been granted, the dealership would have been force to accept annexation to a city adjoining the dealership property in order to have sewage disposal. Such a decision would have resulted in two dealerships from the same company within that city. The applicant in that case would have lost his automobile dealer franchise or have been forced to relocate elsewhere. The automobile dealership property site possessed adequate drainage with a water table 44 inches below the surface during the wettest season of the year and 84 inches at other times of the year. Anticipated sewage flow estimated at 525 gallons per day for the automobile dealership is similar to the estimate of 600 gallons per day for Petitioner's facility. Impact fees were not a consideration in the case.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes.

    
    

14. Petitioner bears the burden of proof to establish by a preponderance of the evidence that he is entitled to the variance sought by him.

15. Petitioner's position that payment of $53,000 in impact fees makes the City of Lakeland sewerage system unavailable to him is not persuasive. Respondent has defined "availability" in Rule 10D-6.042(7), Florida Administrative Code. Under that definition, a public system is available if the publicly owned sewerage system is not be under a Department of Environmental Regulation Moratorium; if the estimated sewage flow is 600 gallons a day or less and can be accessed to an existent public sewer line through a public easement abutting the property; and if gravity flow of the sewage to the public sewer line can be maintained. The definition is applicable to Petitioner's situation in the instant proceeding.

    
    

16. Petitioner argues next that the payment of impact fees to the City of Lakeland constitutes a financial hardship upon which a variance should be granted in accordance with Section 381.272(1), Florida Statutes. Pursuant to that statutory section, Respondent may not grant a variance for hardship until satisfied that such hardship was not caused by the applicant; that no reasonable alternative for sewage treatment exists; and that the discharge from the proposed sewage disposal system will not adversely affect the health of the applicant, the public health, or result in degradation of ground or surface waters.

    
    

17. While the hardship in this case was not intentionally caused by Petitioner, the city system offers a reasonable alternative for sewage treatment and Petitioner has failed to show by a preponderance of the evidence that the public health will not be affected or that ground and surface water would be unaffected.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying approval of the variance

requested by Petitioner.

DONE AND ENTERED this 21st day of April, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 21st day of April, 1989.

COPIES FURNISHED:

Deno P. Dikeou

Liberty National Bank Building Suite 200

502 N. Highway 17-92 Longwood, Florida 32750

Raymond R. Deckert, Esquire Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue 5th Floor, Room 500 Tampa, Florida 33614

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, Esq. General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 89-000330

Orders for Case No: 89-000330