STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEROME AND BERNICE MASSEL, )

)

Petitioners, )

)

vs. ) CASE NO. 90-6487

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

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 March 12, 1991, in Daytona Beach, Florida.

APPEARANCES

For Petitioners: Jerome and Bernice Massel, pro se 6426 Engram Road

New Smyrna Beach, Florida 32169

For Respondent: Charlene J. Petersen, Esquire

Department of Health and Rehabilitative Services

P.O. Box 2417

Jacksonville, Florida 32231-0083 STATEMENT OF THE ISSUES

The issue in this cause is whether a variance should be granted from the state law requiring a fifty (50) foot setback from Class III waters of the state for an onsite sewage disposal system.

PRELIMINARY STATEMENT

The Petitioners applied to the HRS/Volusia County Public Health Department for an onsite Sewage Disposal System Construction Permit to begin building a house. The permit was denied. The Petitioners then applied to the state for a variance from the Florida Administrative Code standards. The state denied the variance. Upon notice of the Variance Board's decision, the Petitioners requested a formal administrative hearing.

At the formal hearing, the Petitioners testified on their own behalf and presented the testimony of their son, Edward Massel. Petitioners introduced four exhibits which were admitted into evidence. The Respondent's counsel presented the testimony of Edward Bettinger and Ronald (Gene) Bray. The Respondent's three exhibits were admitted into evidence.

No transcript of the hearing was filed. The Petitioner did not file proposed findings. The Respondent filed a proposed recommended order which was read, considered and adopted.

FINDINGS OF FACT

1. Petitioners purchased property in New Smyrna Beach, Florida to build a home. The property, which was platted in the 1940's measures 50 feet by 200 feet. The east side of the property (50') is located on Engram Road. The northern 200 feet and western 50 feet of the property is waterfront, situated on a tidal inlet from the Indian River.

   
   

2. The Indian River contains the last remaining Class II waters in Volusia County. Class II waters in Florida are waters in which the state allows shellfish harvesting for public consumption. As the last remaining Class II waters in the county, the area requires special protection from all possible sources of pollution and negative environmental impact, including sewage outflow.

   
   

3. According to the Petitioner, the seller of the property indicated to Petitioners that the property had been approved for constructing a home. The seller substantiated his assertion with a letter from the Volusia County Planning and Zoning Department stating that a county variance had been granted to construct a single family dwelling on this property, subject to certain conditions. The county approval letter specified the required use of an aerobic wastewater treatment system.

   
   

4. The Petitioners were unaware of the state regulations and standards for onsite sewage disposal systems.

   
   

5. The Petitioners hired a builder who applied to the HRS Volusia County Public Health Department for a septic tank permit. The permit was denied because the proposed septic tank system violated 50 foot set back required of sewage treatment systems from Class II waters. The proposed drainfield was located within 28 feet of the mean high water line, and because of the configuration of the lot and its depth of only 50 feet the proposed site cannot meet the state standard.

   
   

6. The Petitioners' builder subsequently applied to the state Department of Health and Rehabilitative Services for a variance from the code standards in order to obtain the septic tank construction permit. The state denied the variance stating that the "request was not considered to be a minor deviation from the minimum requirements".

   
   

7. The Petitioners received no notification of the time and place of the Variance Review Board's meeting because the variance application was submitted by their builder. Petitioners had no opportunity to personally address the Variance Board when their application was being considered.

   
   

8. A sewer line is located within 1000 feet of the property and a sewage grinding and pumping system could be installed to pump sewage from the site to the sewer line. Such a system, costs approximately the same amount as an onsite system. A grinding and pumping system is an economically reasonable alternative to permit development of the lot.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over these de novo proceedings, the parties and the subject matter pursuant to Section 120.57, Florida Statutes.

   
   

10. State regulations concerning location and installation of onsite sewage systems are set forth in 10D-6.046, F.A.C. (R.6/90), which provides in pertinent part, as follows:

    
    

    (3) Except for the provisions of Rule 10D- 6.046(7)(f), systems shall not be located laterally within 75 feet of the mean high water line of tidal water bodies or within 75 feet of the ordinary high water line of lakes, streams, canals or other non-tidal surface water. . . .

    (7)(f) All provisions of these rules relating to soil condition, water table elevation, distance, and other setback requirements shall be equally applied to all lots regardless of the date of platting, except that lots platted prior to 1972 shall be subject to a minimum surface water setback of 50 feet and shall not be subject to minimum lot size requirements specified for subdivisions in Rule 10D-6.046(7)(a) and

    (b). . . .

    
    

11. State regulations concerning variance to the Chapter 10D-6, Standards for Onsite Sewage Disposal Systems are stated, in pertinent part, in Subsection 10D-6.045(3), F.A.C., as follows:

    
    

    . . . 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 unintentionally by the action of the applicant, where no reasonable alternative exists for the treatment of sewage and where discharge from the onsite sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade ground or surface waters . . .

    
    

12. The Petitioners have the burden to show that they should be granted a variance for their property. Due to the size of the property and its waterfront location, the setback available for the onsite sewage system drainfield is 28 feet, and the F.A.C. requires 50 feet. Even if the size of the house was reduced, the setback requirements remain 50 feet. The Petitioners are 22 feet short of meeting the state standards. A twenty-two foot exception to a fifty foot requirement is not a minor deviation in the minimum distance required for the setback given the nature of the soil, the elevation, and the quality and use of the water.

13. The high ground water level and the proximity of the property to Class II waters must be considered. The Petitioner's must show that the proposed variance will not damage the water. The Petitioner's failed to do this. The Respondent introduced testimony that a twenty-eight foot setback for an onsite sewage system is not enough to prevent human waste bacteria from entering the ground water and river under the existing conditions.

    
    

14. Since the property is unique by virtue of its 50 foot width and location on the water, there is no manner in which the onsite sewage system or the site plan can be modified in order to meet state standards for a septic tank permit. A grinding and pumping system is an economically reasonable alternative to permit development of the lot.

RECOMMENDATION

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

RECOMMENDED:

That the request for a variance be DENIED.

DONE and ENTERED this 2nd day of April, 1991, in Tallahassee, Florida.

STEPHEN F. DEAN

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 2nd day of April, 1991.

COPIES FURNISHED:

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Linda Harris, General Counsel Department of Health and

Rehabilitative Services

132 Winewood Boulevard Tallahassee, FL 32399-0700

Jerome and Bernice Massel 6426 Engram Road

New Smyrna Beach, FL 32169

Charlene J. Petersen, Esquire HRS-District 4

P.O. Box 2417

Jacksonville, FL 32231-0083

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. 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: 90-006487

Orders for Case No: 90-006487