STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA DEPARTMENT )

OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1993

)

BJM ASSOCIATES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on December 20, 1996.

The judge and the parties participated by video conference from Tallahassee, Florida. The witnesses and court reporter participated from Orlando, Florida.

APPEARANCES

For Petitioner: Francine M. Ffolkes, Esquire

Department of Transportation Burns Building, Mail Station 58 608 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Bernard J. Martin, Esquire

506 Wymore Road

Winter Park, Florida 32789

STATEMENT OF THE ISSUES

The issues for disposition are whether BJM Associates, Inc. is required to apply for and obtain a drainage connection permit

pursuant to rule 14-86, Florida Administrative Code, and if so, whether BJM Associates, Inc., has failed to obtain that permit.

PRELIMINARY STATEMENT

On November 17, 1995, Petitioner, Department of Transportation (DOT), issued a notice of violation and notice to show cause to Rosetta Villas, c/o BJM Associates, Inc., Winter Park, Florida, alleging that the named respondent was required to have a drainage connection permit, but had not applied for one.

Rosetta Villas, through BJM Associates, Inc., requested a formal administrative hearing and the case was referred to the Division of Administrative Hearings on April 26 1996.

At the hearing DOT presented the following witnesses: Richard Bell, George Merrick and Tony Bryan. DOT offered no exhibits.

Respondent, BJM Associates, Inc., presented the testimony of Bernard Martin, Larry Roberts, Larry Smith and Vicki Lee Parker. Respondent’s exhibits nos. 1-10 and 12-23 have been received in evidence. Respondent’s exhibit no. 24, a videotape of the site and Mr. Martin’s explanation, is also received in evidence, over Petitioner’s objection. (While viewing this exhibit, the Judge accidentally deleted a couple of minutes of the opening. There is ample portion left to portray the site, however.)

On January 4, 1997, Respondent sent to the Administrative Law Judge a letter with an accompanying sketch of a ditch, with copies to opposing counsel as was appropriate. In response, Ms.

Ffolkes filed an objection to the sketch and reopening the evidence. The sketch, which purports to depict dimensions of the ditch at the south perimeter of Rose Pointe, is irrelevant to the issue of whether Respondent needs a drainage connection permit, and is rejected for that reason. The size of the ditch is not controverted in this proceeding.

The transcript of hearing was filed on January 13, 1997; Respondent filed a proposed recommended order on January 27, 1997.

FINDINGS OF FACT

1. Respondent, BJM Associates, Inc. (BJM) is the owner and developer of Rosetta Villas Subdivision, located in Orange County, Florida, (Respondent’s prehearing Statement)

2. Petitioner, Department of Transportation (D0T) purchased an adjacent parcel, including a retention pond, “Pond A”, in 1991, in anticipation of a road-improvement or extension project for Maitland Boulevard. The pond was purchased from Rose Industrial Park, a permitted development also adjacent to the pond.

3. Rosetta Villas Subdivision received Orange County subdivision approval in 1986 and 1988, and a St. John’s River Water Management District permit for stormwater facilities in 1991. Lots have been platted, streets have been constructed and homes have been sold.

4. Rosetta Villas Subdivision includes a water retention pond on-site, built in 1995. There is a pipe from that pond which discharges water into a ditch that is partially within the DOT right of way. The ditch has a 30-inch concrete pipe which discharges into DOT’s Pond A.

5. There is some indication in the record that a diversion ditch was part of an over-all permit for the Rose Industrial Park development prior to DOT’s purchase of Pond A. The diversion ditch was intended to convey stormwater around, and not into Pond

   A. The diversion ditch south of Rosetta Villas and north of Pond A does not convey Rosetta Villas’ run off around Pond A. Instead the 30-inch concrete pipe conveys Rosetta Villas’ overflow water into Pond A.

6. The 30-inch concrete pipe was constructed by BJM in 1995 after an existing, much smaller, pipe became clogged. BJM contends that the pipe was replaced at the direction of someone from DOT. While that contention is not disputed, nothing in this record supports any suggestion that DOT is now estopped from requiring a drainage connection permit. At hearing BJM’s own expert witness opined that the 30-inch pipe which now discharges into Pond A requires a connection permit. (Transcript, p. 130)

7. BJM does not have that permit and, after meetings and extensive discussion with DOT staff, has not applied for the permit.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction in this matter pursuant to section 120.57(1), Florida Statutes.

9. Rule Chapter 14-86, Florida Administrative Code, governs DOT’s requirements for drainage connection permits. Rule 14-86.001 provides:

   14-86.001 Purpose. The purpose of this rule chapter is to ensure safe conditions and the integrity of the Department’s transportation facilities and to prevent an unreasonable burden on lower properties by providing standards and procedures for drainage connections from the properties adjacent to the Department’s right-of-way.

   All Department actions taken pursuant to this rule chapter shall be in accordance with Section 120, Florida Statutes.

   
   

10. “Drainage Connection” is defined in rule 14-86.002(4), Florida Administrative Code,:

    (4) “Drainage Connection” means any structure, pipe, culvert, device, paved or unpaved area, swale, ditch, canal, or other feature whether natural or created which is used or functions as a link or otherwise conveys stormwater runoff or other surface water discharge from the adjacent property to the Department’s facility.

11. “Improvement” is defined in rule 14-86.002(8), Florida Administrative Code,:

    (8) “Improvement” means any man-made change to property adjacent to the Department’s right-of-way made after the effective date of this rule chapter. [11/12/86]

12. Improvements that are not exempted in rule 14- 86.003(1), Florida Administrative Code, must have a drainage connection permit as provided in rule 14-86.003(2), Florida Administrative Code. Exemptions include single family residential improvements that are not part of a larger common plan of improvement or sale; agricultural or silviculture improvements; and other plans of improvement, subject to requirements as to maximum impervious area, no work in a DOT right of way and location in a watershed which has a positive outlet. BJM has failed to prove its entitlement to any of the exemptions; DOT has proved that a permit is required and has not been obtained.

13. DOT will accept surface water permits that are issued by a water management district or delegated local government provided that the existing permit is based on requirements equal to or more stringent than those described in DOT’s rule 14- 86.003, Florida Administrative Code. (See rule 14-86.004(6), Florida Administrative Code.)

    
    

14. BJM has presented in this proceeding detailed drawings, engineering calculations, maps and documents regarding its existing permits and permits issued to Rose Industrial Park prior to DOT’s purchase of Pond A. That data and evidence are relevant to conditions for the required permit, but not whether a permit is required. BJM’s representative needs to apply for the permit, and if the permit is denied or granted with conditions, BJM will

be given a new “point of entry” to contest that agency action or request a waiver or variance, pursuant to Chapter 120, Florida Statutes (1996). 1/

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

that the Department of Transportation issue its Final Order requiring BJM to apply for a drainage connection permit pursuant to chapter 14-86, Florida Administrative Code.

DONE and ORDERED this 24th day of February 1997 in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February 1997.

ENDDNOTE

1/ BJM presented extensive evidence regarding the diversion ditch or swale and its intended purpose. It may be possible for BJM to redirect its out-flow however, the current status of the drainage system.

COPIES FURNISHED:

Francine M. Ffolkes, Esquire Department of Transportation Burns Building, Mail Station 58 608 Suwannee Street

Tallahassee, Florida 32399-0458

Bernard J. Martin, Esquire

506 Wymore Road

Winter Park, Florida 32789

Pamela Leslie, General Counsel

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Ben G. Watts, Secretary Attn.: Diedre Grubbs

Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001993

Orders for Case No: 96-001993