STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL S. KOCHAN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5277

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Gainesville, Florida.

APPEARANCES

For Petitioner: Michael S. Kochan, pro se

9360 Craven Road

Unit 1401

Jacksonville, FL 32257

For Respondent: Frances S. Childers, Esq.

Department of HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to a variance from the permitting rule requirements so as to authorize installation of an on-site sewage disposal system ("OSDS") on his property in Columbia County, Florida.

PRELIMINARY STATEMENT

This cause was initiated upon the filing of an application for a permit authorizing the installation of an OSDS by the Petitioner. The application was filed with the Respondent ("Department") and duly reviewed by the Environmental Health Director and his staff for Columbia County, Florida. The permit application was denied on authority of Rule 10D-6.047(6)(1), Florida Administrative Code, on the basis that the property is beneath the ten-year flood plain elevation for the Santa Fe River; and the site in question had only

27 inches of soil above a solid limerock impervious layer, with only 10 inches of that soil suitable for use as an OSDS. Accordingly, since the standards of the above-cited rule were not met in terms of the safety to the public health and in terms of avoidance of adverse effects on the ground or surface waters

involved at the site, the application was, therefore, denied. In the denial letter of November 20, 1989, informing the Petitioner of the denial of his permit application for the above-mentioned reasons, he was also advised of his right to request a variance from the requirements of Rule 10D-6.047, Florida Administrative Code. Thereupon, the Petitioner filed a request for variance from Rule 10D-6.047(6), Florida Administrative Code, with an accompanying sketch, depicting in his view, a means for a septic tank and drain field to be installed, which would operate with appropriate environmental safeguards. In essence, this would be accomplished by adding sufficient fill dirt of appropriate character and type to the existing grade to provide the appropriate

42 inches of proper soil underlying the bottom of the proposed drain-field trenches. In essence, the Petitioner was proposing a mounded septic tank and drain-field system. The Department elected to deny the application for a variance, and the matter was referred to the undersigned Hearing Officer for hearing.

The cause came on for hearing as noticed. At the hearing, the Petitioner presented his own testimony; and the Respondent presented the testimony of Environmental Specialist, Paul Lloyd; the Assistant State Health Officer, Dr. Richard Hunter; and the Environmental Health Director for Columbia County, Steven L. Knight. Additionally, the Respondent offered three (3) exhibits, which were admitted into evidence.

The hearing concluded, and the parties indicated that a transcript would be ordered and that proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders would be filed subsequent to the hearing. After waiting a substantial period of time post-hearing, no transcript nor Proposed Recommended Orders have been filed with the Division.

FINDINGS OF FACT

1. The Petitioner owns certain real property in Columbia County, Florida, in a subdivision known as "Three Rivers Estates, Unit 5, Lot 33". The property is at "River Mile 7" of the Santa Fe River, as measured by the Suwannee River Water Management District; and the subdivision was platted and recorded in 1962. The lot in question is 400 feet by 90 feet in dimensions and is located approximately 300 feet from the surface waters of the Santa Fe River. The applicant/Petitioner desires to install an OSDS merely for the purpose of serving his motor home when he vacations on the lot in question, because the Columbia County Ordinance involved requires that a residential-type septic system be installed and operating before a resident can obtain electric power to his lot, even for use with a motor home.

   
   

2. The original permit application and the variance were denied because the property lies beneath the ten-year flood elevation for the pertinent river mile of the Santa Fe River, where the property in question is located, and because the site has only 27 inches of soil between the surface grade and a solid limerock stratum which lies under the area. Only 10 inches of that 27 inches of soil is suitable for use as part of an OSDS, being of a sandy quality. The remainder of the soil is of a dense, impervious, gray clay, which is not suitable as a treatment medium for OSDS's. It is undisputed that the property surface grade elevation at the proposed installation site is 22.66 feet above mean sea level ("MSL"). The ten-year flood elevation at the site is 31.0 feet above MSL. Therefore, the installation site is approximately 8.33 feet below the ten-year flood elevation. Thus, the proposed installation site cannot meet the requirements of Rule 10D-6.047(6), Florida Administrative Code, with regard to the definitional standards in that provision, to the effect that the site in

   question cannot be subject to frequent flooding, as measured by ten-year flood elevations for the site. There was no showing by the Petitioner that installation of an OSDS at the site, given the above- mentioned soil depth and characteristics, the fact that the property in question is below the ten-year flood elevation, would not pose an adverse effect on the public health, the health of the applicant/Petitioner or his guests or invitees, nor that adverse impacts on the ground or surface waters in the vicinity of the site, in terms of pollution contamination, will not be occasioned by installation of an OSDS on the lot in question, in terms of a conventional, beneath-surface-grade-type system.

   
   

3. The Petitioner proposes, however, the use of a "mounded system", which involves the installation of fill soil above the present grade level, so that a sufficient depth of appropriate treatment soil (42 inches) will exist between the bottom of the drain-field trenches and the water table, which in the instant case, means the limerock layer which lies just above the water table. The problem with such a mounded system, however, is that pertinent Department rules contained in Section 10D-6.043-.049, Florida Administrative Code, regarding the slope and basal area configuration of such mounded systems, reveal that the subject lot is too narrow to install a mound of sufficient height to raise the OSDS and the bottom surface of its drain-field trenches above the ten-year flood elevation. This is because, even though a lower mound of approximately 3 feet in height could be installed to raise the drain-field trenches the required 42 inches above the water table, the 3-foot mounded system would still be beneath the ten-year flood elevation. A mound approximately 10'2" high above surface grade would be required to raise the OSDS a sufficient amount to get it above the ten-year flood elevation.

   
   

4. It might be said that the proposed 3-foot mound, which would give sufficient treatment soil beneath the drain-field trenches, would constitute only a "minor deviation" from the permitting requirements of Rule 10D-6.047, Florida Administrative Code, regarding the ten-year flood elevation parameter. Thus, in the instant situation, it might be an appropriate alternative system justifying the granting of a hardship variance based upon a minor deviation from the permitting rules. However, the Petitioner did not prove that such would amount to a minor deviation. Specifically, the Petitioner did not establish that the use of such a system would pose no threat or adverse impact on the ground or surface waters at the site involved nor to the public health. While the septic tank and drain fields in such a 3-foot-mounded system might work, the likelihood of frequent flooding would render the system unsafe from an environmental standpoint, as delineated in the rules, because it would be subject to frequent flooding. Because of the threat of frequent flooding by such a low-mounded system, it cannot be said to be a minor deviation justifying the granting of a hardship variance.

   
   

5. Further, Rule 10D-6.047, Florida Administrative Code, requires that when a mounded system is to be constructed in a "regulatory flood-way", a certified engineer performing appropriate calculations and other-engineering techniques must establish that the installation of the mound in the regulatory flood-way will not raise the level of the "base flood". Evidence of such engineering calculations, which would show that the base flood level will not be altered by installation of any sort of mounded system, has not been offered in this record, however. This further militates against any finding that installation of even a 3-foot mounded system would constitute a minor deviation from the permitting rules contained in Rule 10D-6.047, Florida Administrative Code. There is no dispute that the property and the site in question lies within the regulatory flood-way of the Santa Fe River.

6. Thus, in terms of the proposed variance, there has been proof that use of a 3-foot mound beneath the ten-year flood elevation, or a mound which would raise the OSDS proposed above the ten-year flood elevation, would only be a "minor deviation" from the permitting rules, which are designed to protect public health and the ground or surface waters involved from pollution. In fact, it was not shown how such an alternative system would insure the protection of the ground or surface waters involved from any adverse impact caused by pollution from OSDS effluent nor how such an alternative system would operate and still safeguard the public health and the ground or surface waters involved.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The basic requirements for permitting of OSDS's are set forth in Section 381.272, Florida Statutes. Rule 10D- 6.044(3), Florida Administrative Code, states that suitability of property for use with an OSDS shall be determined by evaluating lot size, anticipated hydaulic load to the system, soil and water table conditions prevailing at the site, and soil drainage and site topography characteristics. As stated in the above Findings of Fact, the soil and water table conditions and site topography characteristics involving elevation show that the site in question does not meet the requirements of this rule. More particularly, the site in question is characterized by only 27 inches of total soil between the surface grade elevation and the limerock layer underlying it. Only 10 inches of that 27 inches is suitable treatment-medium- type soil (sand). The remainder is a dense, impervious clay material. Thus, the soil in question at the site will not handle the hydraulic loading anticipated from the OSDS proposed, with regard to those provisions of Chapter 10D-6, Florida Administrative Code, containing the standard that 42 inches of suitable treatment-medium-type soil, shall be located beneath the bottom of the proposed drain-field trenches.

   
   

9. Further, Rule 10D-6.047(6), Florida Administrative Code, provides:

   
   

   (6) The final lot elevation of the site of the proposed system installation and the additional unobstructed land referred in Rule 10D-6.046(4) is not subject to frequent flooding. In addition, the bottom surface of the drain field trench or absorption bed shall not be subject to flooding based of

   ten-year flood elevations. U.S. Department of Agriculture Soil Conservation Service maps, State of Florida Water Management District's data, and Federal Emergency Management Agency flood insurance maps are resources that can be used to identify the flood prone areas. Mound systems, sand filters or other systems which require the placement of fill material or construction of above grade structures, will

   not be authorized within a regulatory flood-way unless certified by an engineer registered within the State of Florida that the placement of such fill or structures will not increase

   the water surface elevation of the base flood. The certification of such systems shall be substantiated by data and method of calculation provided by the engineer and shall be subject to review and approval by the county public health unit.

   
   

10. There is no dispute that the property lies well below the ten-year flood elevation. The applicant/Petitioner proposes a mounded system, as discussed more fully in the above Findings of Fact, in essence, as a "reasonable alternative" system for purposes of Rules 10D-6.047 and 10D-6.049, Florida Administrative Code. However, for the reasons delineated above, neither mounded system was shown to be a reasonable alternative under the circumstances prevailing in this case and delineated in the above Findings of Fact.

    
    

11. The proof does not support entitlement to a variance. Section 381.272(a), Florida Statutes, describes the criteria which applicants must meet when seeking a variance. That section provides as follow:

    
    

    1. The Department of Health and Rehabilitative Services may grant variances in hardship cases which may be less restrictive than the provisions specified in this section. A variance may not be granted pursuant to this section until the Department of Health and Rehabilitative Services is satisfied that:

       
       

       1. The hardship was not caused intentionally by the action of the applicant;

          
          

       2. No reasonable alternative exists for the treatment of the sewage; and

          
          

       3. The discharge from the individual sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters....

          
          

12. Rule 10D-6.045(3), Florida Administrative Code, describes a criteria for evaluating variance applications:

    
    

    (3) Upon consideration of the merits of each application and the recommendations of the review board, the staff director, health program office, 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 discharge

    from the on-site sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade around or surface waters. Where soil conditions, water table elevation, and setback provisions are determined by the department to be satisfactory, special consideration shall be given to those lots platted prior to 1972....

    
    

13. In terms of the above-three-quoted statutory requirements for the granting of a variance, the hardship involved in the applicant being unable to reside on his property without an OSDS of some sort was not shown to have been caused intentionally by the action of the applicant/Petitioner. Further, the proof, culminating in the above Findings of Fact, shows that no reasonable alternative exists for the treatment of the sewage in question, which satisfies the second standard in the above-quoted statute for the granting of a hardship variance. No reasonable alternative exists because the proof shows that a mounded system beneath the ten-year flood elevation in the configuration of the 36-inch mound proposed might work in times of normal water levels, but is still subject to frequent flooding and would cause degradation of ground or surface waters and endangerment to the public health during flood conditions because it is significantly beneath the ten-year flood elevation. The proposed 10'2" mounded system, which would raise the entire OSDS system above the ten-year flood elevation, was not shown to be feasible or a reasonable alternative because the lot size in question is not sufficient to accommodate the basal area and the slope required for such a high mound. See Rule 1OD-6.049, Florida Administrative Code. Finally, a mounded system is not a reasonable alternative because no evidence from a certified engineer nor related calculations were offered into evidence to establish that the installation of a mounded system of any size or configuration would not alter the base flood level in the regulatory flood-way, where this installation site is located. Thus, it has not been demonstrated that any reasonable alternative exists for the treatment of the proposed sewage in question; and in fact, it has been demonstrated that, in effect, no reasonable alternative exists.

    
    

14. At this time, the third element of the variance criteria quoted above, however, has not been met by the Petitioner. The Petitioner has not established that the discharge from the OSDS contemplated, either a conventional beneath- grade system or a mounded system, would not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters involved at the proposed installation site. The failure to show the lack of such an adverse effect, regarding the third variance criterion, also constitutes a failure to demonstrate that the installation of a conventional system in the present elevation of the property, or a mounded system, would only be a "minor deviation" from the established OSDS permitting standards, which is one of the criteria required to be shown for the granting of a variance, as delineated in the above-quoted rule. Thus, since the third variance criteria contained in the above-quoted statute, as well as in Rule 10D-6.045, Florida Administrative Code, also quoted above, concerning the lack of degradation of ground or surface waters and lack of adverse effects on the health of the applicant or other members of the public, has not been met, adequate proof justifying the granting of a variance has not been established. Accordingly, it is concluded that the variance application at issue must be denied.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that a Final Order be entered by the Department denying the Petitioner's application for a variance from the permitting statutes and rules at issue.

DONE AND ENTERED this 7th day of June, 1991, in Tallahassee, Leon County, Florida.

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 10th day of June, 1991.

COPIES FURNISHED:

Mr. Sam Power Agency Clerk Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Linda K. Harris, Esq. General Counsel Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Michael S. Kochan 9360 Craven Road

Unit 1401

Jacksonville, FL 32257

Frances S. Childers, Esq. Department of HRS

District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609

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.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

MICHAEL S. KOCHAN,

Petitioner,

vs.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

CASE NO.: 90-5277

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearing (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except for the finding in paragraph 6 that the proposed variance would only be a minor deviation. The rejected finding is apparently a scrivenor's error as it is totally inconsistent with the rest of the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order.

Based upon the foregoing, it is

ADJUDGED, that the variance sought by petitioner, Michael S. Kochan, be DENIED.

DONE and ORDERED this 2nd day of July 1991, in Tallahassee, Florida.

Robert B. Williams Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Health

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

Michael S. Kochan, pro se 9360 Craven Road

Unit 1401

Jacksonville, FL 32257

Frances S. Childers, Esquire District 3 Legal Office

1000 NE 16th Avenue Gainesville, FL 32609

P. Michael Ruff Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

The DeSoto Building Tallahassee, FL 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U. S. Mail this 8th day of July, 1991.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 904/488-2381

Docket for Case No: 90-005277

Orders for Case No: 90-005277