Findings Of Fact Respondent, Okaloosa County Board of County Commissioners, gave notice of a new storm water discharge to the Department for the proposed replacement of a 42" diameter storm water pipe with one 48" in diameter. Notice was given in letters, telephone calls and personnel meetings between representatives of Okaloosa County and the Department. Upon investigation of the project, the Department determined that the project would not significantly enlarge the storm water discharge system, nor enlarge the watershed which the system now drains. The Department also determined that the addition of an energy dissipater, a structure not now present at the discharge end of the pipe, would improve the performance of the discharge system by limiting the velocity of the storm water discharge to 2.3 feet per second. The Department determined that the new storm water discharge would not have a significant adverse impact on the water quality or designated uses of Gap Creek. On May 6, 1980, the Department issued to Okaloosa County a letter of intent to exempt the project from storm water licensing requirements. The Department considered the following in reaching its conclusion that the replacement of the existing pipe would not significantly affect water quality or designated usage: The use of an energy dissipater structure designed to limit the discharge velocity into Gap Creek to a maximum of 2.3 feet per second. The placing of sod around all storm water inlets associated with the pipe replacement to prevent the continued entry of sand into the system; and The pipe replacement and addition of the energy dissipater will not result in a significant enlargement of the existing storm water discharge system, nor otherwise result in the drainage of a larger area. The replacement of the drainage pipe by the county will not add to the amount of water entering Gap Creek, or significantly affect the quality of water in the Creek. Presently, storm water runoff travels within a county-owned drainage ditch and overflows at the point where the county intends to replace the existing 42" pipe. The present pipe is not capable of handling the amount of runoff in the ditch and this results in water overflowing the drainage ditch at the mouth of the pipe and traveling by natural contour to Gap Creek. The 48" replacement pipe and energy dissipater will allow a greater volume of water to remain in the drainage ditch and divert its flow away from the front and back yards of some Gap Creek residents.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, granting the applicant, Okaloosa County, an exemption from storm water licensing requirements for the installation of a 48" storm water pipe to replace an existing smaller pipe that enters into Gap Creek. DONE and ORDERED this 27th day of February, 1981, in Tallahassee, Leon County, Florida. SHARYN L. SMITH, 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 27th day of February, 1981.
The Issue The issues to be decided are whether the County's Building Official erred in (i) approving an elevation certificate on the authority of his conclusion that the building permit issued many years earlier entitles Intervenors to a favorable interpretation of the relevant flood zone boundary on their oceanfront property, which is adjacent to Petitioner's property; and (ii) lifting a stop-work order based upon the approval of the elevation certificate.
Findings Of Fact At all times material to this proceeding, Intervenors Peter G. Giampaoli and Elizabeth C. Giampaoli, Individually and as Trustees of the Giampaoli Family Trust (collectively, the "Landowner"), have been engaged in an ongoing effort to build a single-family residence (the "SFR") on their oceanfront parcel located at 16820 Old State Road 4A, Sugarloaf Key, Florida 33042 (the "Property"). Respondent Monroe County (the "County") has regulatory jurisdiction over the development of the Property, which is situated within the County's territorial boundaries. The County issued a building permit for the SFR on April 9, 2010, and that building permit, as revised, has remained active at all times material hereto. Petitioner Dalk Land, LP (the "Neighbor"), owns the parcel directly adjacent to the Property's southwest border. The Neighbor is unenthusiastic about the construction of the SFR. This case stems from the Neighbor's objection to the County's approval of the Landowner's revised certification of elevation, an approval which in turn prompted the concomitant lifting of a stop-work order that the Building Official had previously issued after having "failed" the Landowner's original elevation certificate. At the heart of the instant dispute is a line——the line which divides the two flood zones wherein the seaward portion of the Property lies. A flood zone is an area having a prescribed level of flood risk. The Federal Emergency Management Agency ("FEMA") establishes and defines flood risks and flood zones. FEMA determines, as well, the levels of flood risk existing in communities nationwide, demarcating geographic areas of similar risk, which it classifies according to flood zone. FEMA creates, stores, and updates Flood Insurance Rate Maps ("FIRM") that depict these zones. The parties refer to the borders between the zones as "flood lines" or simply "lines," and the undersigned will occasionally do the same. The two flood zones of interest here are especially high risk "velocity zones" ("VE"), namely VE-13 and VE-15, which latter is, as between them, the more hazardous coastal area. The FEMA FIRMs, which are integral to the National Flood Insurance Program enacted in 1968, have been around for decades. In the pre-digital age, these maps were printed on paper and distributed in this physical form. The paper maps, which are still used, are known as panels. In more recent years, FEMA has been using computer-based geographic information system data to create a nationwide digital flood insurance rate map called the National Flood Hazard Layer ("NFHL"). The process of transferring points on the surface of the globe onto a plane (known as map projection) necessarily distorts the physical reality being depicted. Fortunately, it is not necessary to explore in depth the subject of cartography, nor would the evidence support such findings in any event. It is sufficient to find that, whether delineated on a paper map or in the NFHL, the flood lines depicted on a FIRM are not perfect representations of the "true lines"——i.e., the lines that we would see if FEMA actually painted the flood zone boundaries on the face of the Earth (which it doesn't, of course). The issues in this case require a look at the accuracy of competing delineations of the relevant flood line transecting the Property, namely that between VE-13 and VE-15. For purposes of this discussion, "accuracy" will denote the relationship between a particular delineation of the line under consideration (for example, the NFHL line) and the True Line, where "True Line" means the line as it would appear on a survey if we were able to take the mean of multiple surveyors' delineations of the foundational FIRM data. Here, needless to say, the True Line is only a construct, but the evidence is sufficient to permit the undersigned, as fact-finder, to imagine its location in relation to the several lines at issue, as will be explained below. The closer a given delineation can be said to approach the True Line, the greater its accuracy. Section 122-3(e) of the Monroe County Land Development Code ("LDC"), which requires the submission of an elevation certificate during the course of construction, provides as follows: [U]pon placement of the lowest horizontal structural members of the lowest floor, . . . it shall be the duty of the permit holder to submit to the Building Official a certification of the elevation of the . . . lowest portion of the lowest horizontal structural members of the lowest floor within V zones . . . as built in relation to mean sea level. Such certification shall be prepared by or under the direct supervision of a registered land surveyor or professional engineer and certified by the same. . . . Any work done within the 21-day period and prior to submission of the certification shall be at the permit holder's risk. The Building Official shall review the floor elevation survey data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to further progressive work being permitted to proceed. Failure to submit the survey or failure to make the corrections required hereby shall be causes to issue a stop-work order for the project. Pursuant to section 122-3(e), the Landowner caused an elevation certificate to be prepared, on its behalf, by a surveyor named Eric Isaacs, who drafted the document (the "First EC") and sealed it on February 21, 2018. The First EC states: (i) in Item B9, that the relevant Base Flood Elevations ("BFE") for the SFR are VE-13 and VE-15; (ii) in Item B10, that the source of the BFEs is the FIRM; and (iii) in Items B6 and B7, that the date of the relevant FIRM is February 18, 2005.1/ In the Comments box on page 2 of the First EC, Mr. Isaacs included the following statement: According to [the plans] created by Carl H. Schror, a Florida licensed professional engineer, dated Oct. 2015, and on file with Monroe County, the [SFR] is located entirely in the VE 13 Flood Zone. Per Carl H. Schror, flood lines shown on said [plans] were derived from a boundary survey completed by Harold L. Overbeck, revision 2- 2-2007. (All caps text in original converted to sentence case for readability.) A note inscribed on the As-Built Foundation Survey, which Mr. Isaacs prepared and attached as an exhibit to the First EC, states that the "HOUSE IS 100% IN THE VE 13 FLOOD ZONE PER PAUL LIN." To make a very long story short, Paul C. Lin, Ph.D., P.E., is an engineer who in November 2007 performed a hydraulic engineering analysis of the Landowner's proposed swimming pool, which report includes a diagram ("Figure 3") depicting the VE-13/VE-15 flood line (the "Lin Line") as shown in a site plan (which is not in evidence) prepared by D'Asign Source, the architectural firm originally retained to work on the SFR project. A later version of the D'Asign Source site plan (the "DAS Plan") was submitted to the County's Building Department in or around January 2009 as part of the Landowner's application for a building permit for the original SFR design ("DAS House").2/ In sum, the First EC stated (i) that the SFR is located in both the VE-13 and VE-15 flood zones, according to Mr. Isaacs's delineation of the relevant FIRM data (the "Isaacs Line")3/; and (ii) that the SFR is entirely within the VE-13 flood zone, according to Mr. Schror's site plan (the "Schror Plan"), whose VE-13/VE-15 flood line (the "Schror Line") was purportedly "derived from" the VE-13/VE-15 flood line as delineated by surveyor Harold L. Overbeck (the "Overbeck Line"). The First EC refers, directly or indirectly, to no fewer than four delineations of the relevant flood line, so it will be helpful to pause for a recap. The four lines are: the Isaacs Line, an independent, primary source which is not depicted in the First EC but which stands behind Mr. Isaacs's opinion that, in his best judgment, the SFR is in both the VE-13 and VE-15 flood zones; (ii) the Schror Line, which is described as a secondary or derivative source dependent upon the accuracy of an underlying primary source; (iii) the Overbeck Line, which is presented as an independent, primary source (for the Schror Line); and (iv) the Lin Line, which is cited as an independent, primary source for the VE-13/VE-15 boundary shown in Mr. Isaacs's As-Built Foundation Survey. As mentioned above, however, the Lin Line is not, in fact, an independent, primary source, but rather was copied from the "owner review" version of the DAS Plan. For simplicity's sake, it will be assumed herein that the Lin Line is identical to the VE-13/VE-15 boundary as depicted in the final, approved DAS Plan (the "DAS Line") because any differences between the two are immaterial to the disposition. Thus, then, to be clear, contrary to the statement in the First EC, the Lin Line is actually a secondary, dependent source; the primary (and possibly independent) source behind it is the DAS Line, which is not mentioned in the First EC. While the existence of so many lines is potentially confusing, one simple truth is crystal clear: as a matter of logic, the SFR is either partially within VE-15 as that zone is circumscribed by the True Line, or it is not. By making inconsistent statements about the applicable flood zone(s), the First EC hoisted a bright red flag, which the County could not ignore. The only way to resolve the factual question of whether the SFR is, or is not, partially within the VE-15 zone, which the Landowner itself raised in the First EC, requires that an ultimate determination be made regarding which delineation of the relevant boundary line, of those available, is the most accurate. Whether the SFR can be deemed an illegal structure based upon this factual determination is a separate, legal issue. Care must be taken not to conflate these two related but distinct issues. As noted above, in preparing the First EC, Mr. Isaacs consulted the NFHL to delineate the FIRM flood line. The undersigned will refer to the relevant NFHL VE-13/VE-15 boundary line (the one which crosses the Property) as the "Digital Line." The Digital Line reflects the current gold standard as far as locating the flood zone boundary is concerned. Because the NFHL exists in an electronic format, the flood zone boundaries depicted therein can be overlaid on a survey using computer technology, which reduces opportunities for introducing error. The evidence is overwhelming that no reasonable professional preparing a survey of the Property in 2019, ab initio, would rely upon the paper FIRM instead of the NFHL for purposes of delineating flood zones. In this analysis, therefore, for purposes of evaluating the accuracy of competing flood zone delineations, the Digital Line is accepted as an adequate approximation of the True Line, despite its somewhat smaller scale in relation to the various site surveys in evidence.4/ The County received the First EC on or around May 14, 2018. The Building Official, Rick Griffin, initially approved the certificate on June 7, 2018, finding that it "complies with the permit conditions," but he later reconsidered, ordering that the decision on the First EC be changed to "failed," effective July 10, 2018. As recorded in the inspector notes, which are part of the permit file, the reason for this reversal was that "the elevation certificate has two flood zones and the home will not comply with the VE 15 flood zone requirements." Having found the First EC deficient, the Building Official issued a stop-work order for project, dated July 10, 2018. The stop-work order stated that, "in order to comply," the Landowner would need to demonstrate that the SFR, "including projections (roof, balcony, etc.)," is "not within the VE 15 Zone." In response to the stop-work order, the Landowner submitted a revised certificate of elevation, dated July 27, 2018 (the "Second EC"). Again prepared by Mr. Isaacs, the Second CE is nearly identical to the First CE, except that it states: (i) in Item B9, that the BFE for the SFR is VE-13; and in Item B10, that the source of the BFE is "HAROLD OVERBECK SURVEY DATED 02-02-2007." Moreover, the note in the Comments box on page 2 has been amended as follows: According to [the plans] created by Carl H. Schror, a Florida licensed professional engineer, dated Oct. 2015, and on file with approved by Monroe County, the [SFR] is located entirely in the VE 13 Flood Zone. Per Carl H. Schror, flood lines shown on said [plans] were derived from a boundary survey completed by Harold L. Overbeck, revision 2-2-2007. (All caps text in original converted to sentence case for readability; words stricken are deletions and words underlined are additions.) The As-Built Foundation Survey was not attached. So, the Landowner did not discredit the evidence in the First EC showing that the house is located partially within VE-15. Nor was any new information submitted to prove that the house is exclusively in VE-13. Rather, in the Second EC, all evidence contradicting the assertion that the SFR is entirely in zone VE-13 was simply scrubbed. This removal of relevant data reflects the legal argument underlying the Second EC, which runs like this. The County imputed controlling authority to the Schror Plan when, at times in 2017, it approved revisions to the building permit authorizing the construction of Carl H. Schror's redesign of the SFR (the "C-Schror House") in place of the originally permitted DAS House. The Schror Line depicted in the Schror Plan, according to the Second EC, was "derived from" the Overbeck Line. The Overbeck Line——so the argument goes, although this is not represented in the Second EC——served as the basis for the DAS Line shown in the DAS Plan. The DAS Plan was submitted to the County's Building Department in 2009 as part of the permit application, which the County granted when it issued the original building permit in 2010. Thus, the argument concludes, the DAS Plan is the "permitted" site plan and, by extension, the DAS Line depicted therein is the "permitted" VE-13/VE-15 flood line, which the County must honor, as a matter of law, throughout the life of the building permit. Furthermore, because the Overbeck Line was purportedly the source of the DAS Line, the Landowner contends that the County is precluded by law from relying upon a different source in determining the SFR's BFE(s). As convoluted as this argument might appear at first blush, it is premised on the not unreasonable notion that the Landowner should have the right to carry out the construction of the SFR pursuant to the building permit, which would not be possible if the County were now to find, based on a delineation of the Digital Line, that the house is partially within the VE-15 zone. The argument is complicated by the fact that the C-Schror House currently being built is not in the same location as the originally permitted DAS House, and by the fact that the C-Schror House has a different footprint from the DAS House. But it is not wholly without merit. It is a mistake, however, to blur the distinction between (i) the factual question of what the BFE(s) for the SFR actually are based on the most persuasive evidence available with (ii) the legal question of whether the County is required by law (be it under a "vested rights" theory or because of administrative finality) to honor the DAS Line or the Overbeck Line in determining the BFE(s) for the SFR. For one thing, it would not be necessary to reach the second issue if, based on all the evidence, the C-Schror House were found as a matter of fact to be exclusively within the VE-13 zone. For another, even if the C-Schror House were found to be in both the VE-13 and VE-15 zones; and even if, further, the County were legally bound to apply the DAS Line/Overbeck Line in determining the BFE so that the elevation certificate would have to be approved with a BFE based on VE-13, the relevance of the fact that the SFR is partially in the VE-15 zone would subsist, nevertheless, because, in that event, the house would be a nonconforming, albeit legal, structure, which is a material classification. The Landowner invited the County to treat these factual and legal issues as one and sidestep the question of fact regarding the applicable VE zone(s). Accepting the invitation, the County bought into the Landowner's legal argument that the Overbeck survey, as the "permitted" instrument, controls the BFE determination notwithstanding the existence of persuasive evidence showing that the Overbeck Line is less accurate than other available delineations of the Digital Line, and despite the fact that the 2007 survey's margin of error is such that its use as the source of flood zone data for the Property might lead to clearly erroneous results. Once the Building Official had decided that the County is legally constrained to apply the Overbeck Line, he was compelled to approve the Second EC on that basis. A note in the permit file summarizes this decision and the grounds therefor as follows: 7/30/18: Passed per Building Official discussion with County Attorney. This SFR is compliant with the flood zone determined at the time of permitting to be a VE 13, based on the flood zone overlay done by surveyor Harold Overbeck in 2007. (All caps text in original converted to sentence case for readability.) With the Second EC now "passed," the Building Official lifted the July 10, 2018, stop-work order. These are the administrative actions that the Neighbor has contested in this appeal. Because the County accepted the Landowner's legal theory that the Overbeck Line conclusively establishes the VE-13/VE-15 boundary for the Property, the Building Official never exercised his authority (nor, arguably, executed his duty) to independently interpret the FIRM to determine exactly where, in his best judgment, this particular flood line lies on the Property. As a result, while it is probable that, in appeals under section 122-9, the Building Official's delineation of a flood line should be reviewed under one deferential standard or another, there is no such determination by the Building Official in this case for the undersigned to review. Thus, the undersigned must decide de novo the as yet unresolved disputed factual question of whether the SFR is, or is not, partially within the VE-15 zone; in this regard, the undersigned will not be substituting his judgment for that of the Building Official, because the Building Official did not exercise his judgment in this regard. This dispute is not really difficult to decide. The 2007 survey that contains the Overbeck Line was prepared by Mr. Overbeck for a prior owner of the Property. Mr. Overbeck was deceased as of the final hearing, but even without the surveyor's testimony, the evidence establishes that he derived the Overbeck Line from the paper FIRM, drawing it by hand on the survey. This was a standard practice at the time, when the NFHL was not available to (or at least not readily accessible by) private surveyors in Monroe County. Because of the scale at which the paper map is rendered (1":500'), there exists some room for interpretation when "scaling distances" for purposes of transposing FIRM data into a boundary survey at a scale of, in this instance, 1":60'. Without going into unnecessary detail, the undersigned finds that the Overbeck Line is within the professionally acceptable margin of error for its time, place, and method of creation; in other words, the Overbeck Line is close enough to the Digital Line to be considered reasonably accurate by 2007 standards of professional surveying practice. Measured against today's standards, however, the Overbeck Line comes up short. The greater weight of the evidence establishes clearly, and the undersigned finds, that the Overbeck Line is not the most accurate available delineation of the VE-13/VE-15 boundary on the Property. When tasked with platting the exact location of this line according to their own best judgment, professionals on rival sides of this case have reached the same result, namely that the VE-13/VE-15 boundary transects the SFR. Whether the Boehning Line (by the Neighbor's engineer) or the Isaacs Line (by the Landowner's surveyor) is the more accurate makes no difference, as each professional, after independently delineating the Digital Line to the best of his ability, opined that the SFR is partially within the VE-15 zone. The undersigned credits these opinions, and determines, as a matter of ultimate fact, that the SFR is located in both the VE-13 and VE-15 flood zones, just as Mr. Isaacs stated in the First EC. This does not settle the matter, for, as we have seen, the Landowner does not stake its case on the Overbeck Line being found the most accurate rendering of the VE-13/VE-15 boundary. There remains for decision the legal question of whether the Landowner has the right to complete the construction of the C-Schror House as though it were 100% in the VE-13 zone, because it was determined "at the time of permitting," based on the Overbeck Line, that the DAS House is entirely in VE-13. The undersigned determines questions of law de novo.5/ The Landowner has grounded its legal position on the doctrine of administrative finality, which is a kind of quasi- judicial res judicata. The Building Official, however, did not rely upon administrative finality to support his decision to approve the Second EC. Rather, Mr. Griffin claimed to have followed a somewhat vague and evidently unwritten "policy" to "respect" the prior decision to issue the building permit, which policy required him to hew to the flood line that "was permitted at the time"——namely, the Overbeck Line. Mr. Griffin explained the rationale behind this "policy" as follows: [A]s we go through the years, we're seeing different changes in FEMA. The new one is going to be we have a 1-foot freeboard now that we require all new buildings to be 1 foot [above the BFE]. So what does that do with everything that's been permitted back then. It's nonconforming now. Well, I can't go out and say, "Hi, guys, we changed the code. Now you have to go up another foot." Tr. 967. Although Mr. Griffin did not describe it in these terms, the policy he applied is properly understood as the doctrine of vested rights, which under some circumstances prevents a local government from imposing a requirement while construction is ongoing that would materially alter the conditions set forth in the previously issued building permit. Mr. Griffin erred as a matter of law in deciding that the Landowner has the right, by virtue of the building permit, to preclude the County from ascertaining the SFR's BFEs using any data other than the Overbeck Line. This is because, as will be discussed below, the Building Official does not have the authority to make a vested rights determination. Rather, chapter 102, article IV, division 3, of the LDC prescribes a procedure whereby a permittee may apply for a vested rights determination, be afforded a special magistrate hearing, and obtain a final decision from the Board of County Commissioners ("BOCC"). Because this procedure was not followed, and because section 122-9 does not confer upon the undersigned any authority to make a vested rights determination, no further findings of fact need be made in connection with the so-called "policy" of respecting building permits. In contrast, additional findings are required to dispose of the contention that administrative finality limits the County's options concerning the necessary BFE determinations. The first order of business is to figure out what the County actually decided when it issued the building permit in 2010. This is not as easy as it might seem, because the County did not issue a written decision, as such, setting forth its findings and conclusions. The current Building Official, Mr. Griffin, did not hold the post then, nor was he a County employee at the time, and his predecessor did not testify. In fact, no one directly involved in the County's 2010 permit approval decision, including D'Asign Source personnel, gave testimony. Somewhat incredibly, the much talked about Overbeck survey is not in the County's file, an absence for which no explanation was offered. Nor does the DAS Plan mention the Overbeck survey. As a result, there is no direct evidence, and little circumstantial evidence, that the County even saw the Overbeck survey in 2010. What we know are the undisputed facts that, in 2010, the County approved the DAS Plan and issued a building permit for the DAS House. The parties' more recent conduct sheds light on their practical understanding of the prior permitting decision's preclusive effects, or lack thereof. Particularly probative are the actions of the parties that took place before the instant controversy arose. In 2017, as has been mentioned, the Landowner sought, and the County approved, several revisions to the building permit. The background, briefly, is that the Landowner decided to have the DAS House redesigned, and in 2015 hired the engineer Carl Schror to do the work, which he did. Mr. Schror came up with the C-Schror House, which differs from the DAS House, among other ways, in width and length, back deck design, and pool location; in short, while the C-Schror House is similar to the DAS House, it is a new creation. Moreover, Mr. Schror's plans placed the C-Schror House in a different location on the Property, closer to the Atlantic Ocean than the DAS House would have sat had it been built according to the DAS Plan as permitted in 2010. The Schror Plan was based upon, and incorporates, Mr. Isaacs's November 9, 2015, survey, a fact which is stated on the face of the plan documents themselves. The County's approval of the Schror Plan tells us that, in 2017, neither the County nor the Landowner believed itself to be bound by the Overbeck survey in its entirety (because otherwise, of course, the Isaacs survey could not have been used for any purpose). Thus, it is not reasonable to infer that the County's 2010 permitting decision established with finality the authority of the Overbeck survey as the definitive or "official" survey of the Property for the life of the building permit. Consider, in addition, that although the Schror Plan expressly takes advantage of the November 9, 2015, Isaacs survey, it does not utilize (and fails plainly to disclose the omission of) the Isaacs Line, which is a significant feature of the referenced Isaacs survey. (According to the Isaacs Line, recall, the C-Schror House is partially within the VE-15 flood zone.) Nor, however, does the Schror Plan utilize the original, unmodified Overbeck Line. Instead, in the Schror Plan, the VE-13/VE-15 boundary is delineated by the Schror Line, which is (according to Mr. Schror himself) a synthesis of the Overbeck Line, the DAS Line, and the Lin Line. Because the Lin Line is simply a copy of the DAS Line, however, and is therefore devoid of original information content, the Schror Line is really an amalgam of the Overbeck and DAS Lines. This brings us to an important point, which the Landowner tends to gloss over. The Overbeck Line and the DAS Line are similar but not identical. To be sure, although no one from D'Asign Source testified at hearing, it is reasonable to infer from this similarity that the DAS Line was likely "based on" or "derived from" the Overbeck Line in the sense that the D'Asign Source professionals likely used the Overbeck survey as a reference in preparing the DAS Plan and locating the DAS Line. But, at bottom, the Overbeck Line and the DAS Line are different lines. Likewise, the Schror Line, despite having been deliberately derived from the Overbeck and DAS Lines, is a unique line in its own right. The County's approval of the Schror Line tells us that, in 2017, neither the County nor the Landowner believed itself to be strictly bound by either the Overbeck Line or the DAS Line. Thus, it is not reasonable to infer that the County's decision in 2010 to issue a building permit for the DAS House, as shown in the DAS Plan, established with finality the authority of the Overbeck Line (which is not even depicted in the DAS Plan) as the definitive VE-13/VE-15 boundary for the Property. Indeed, given the fact that the Overbeck Line and the DAS Line are not the same line, and in light of the absence of any persuasive evidence that the County, in 2010, actually chose one of these lines as the controlling VE-13/VE-15 boundary for the Property, speculation is required to state that the flood zone was "determined [to be VE-13] at the time of permitting" "based on the flood zone overlay done by surveyor Harold Overbeck in 2007." Such a determination about the flood zone likelier would have been based, were one made (which was not proved), on the DAS Plan, which (unlike the Overbeck survey) was, without question, seen and approved by the Building Official in 2010. Yet, for some reason, the Landowner cited the Overbeck survey, not the DAS Plan, as the authoritative source for the flood zone and BFE determinations in the Second EC. Without engaging in speculation, it is reasonable to infer, and the undersigned finds, that when the Building Official approved the DAS Plan in 2010, he accepted as credible the relatively narrow expert opinion (as it relates to the flood zone) reflected therein, namely that the DAS House, if built according to the DAS Plan, would be 100% in the VE-13 zone as defined by the DAS Line (the "DAS Opinion"). The DAS Opinion was not conditional in that it did not depend upon a presupposition about the location of the flood line; instead of deferring to someone else's delineation, in other words, the DAS Opinion attested that, in the professional opinion of the D'Asign Source engineer(s)/architect(s) responsible for the plans, the DAS Line reflects the exact location of the VE-13/VE-15 boundary. The DAS Opinion also was not generally applicable in that it did not purport to determine the flood zone(s) for any other house in any other location. If the 2010 permitting decision has any preclusive effect vis-à-vis flood zone issues, it is to establish conclusively that the DAS Opinion is correct. The County never changed its mind about the DAS Opinion, which became irrelevant, anyway, when the Landowner chose to abandon the DAS Plan and build the C-Schror House pursuant to the Schror Plan instead. Nor, it should be stated, has any expert opinion comparable to the DAS Opinion ever been provided regarding the C-Schror House. Not a single professional, including the Building Official, has expressed the unconditional opinion that the C-Schror House, if built according to the Schror Plan, will be 100% in the VE-13 zone using the flood line delineation that, in the professional's own independent judgment, best reflects the exact location of the VE-13/VE-15 boundary. What we have, instead, are opinions that the C-Schror House will be 100% in the VE-13 zone, provided the Overbeck Line (or a similar line derived therefrom or based thereon) is presupposed to be the definitive VE-13/VE-15 boundary——opinions which, put another way, stop short of attesting that, in the maker's professional judgment, the Overbeck Line best reflects the exact location of the VE-13/VE-15 boundary. It is ultimately determined that the County did not make any decision in 2010 conclusively establishing that the C-Schror House is located 100% within the VE-13 flood zone.
Findings Of Fact The Petitioner is a political subdivision of the State of Florida. Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in the Florida Administrative Code promulgated thereunder. Respondent, MRT, is a real estate investment trust organized under the laws of the State of Maryland and authorized to do business in Florida. Royal Oaks Development Corporation is a Florida corporation, a wholly-owned subsidiary of Maryland Realty Trust. MRT is developing a parcel of land in Sections 33 and 34, T-2-N, R-1-E, Leon County, Florida, and Section 4, T-1-N, R-1-E, Leon County, Florida, of which approximately 60 acres has already been developed as Royal Oaks Unit No. 1, a recorded subdivision pursuant to Chapter 177, Florida Statutes. The balance of the 120 acres is yet to be developed, and is the subject of this proceeding. The specific activity for which the application for dredge and fill permit was submitted consists of improvements to a drainage-way running from the south boundary of the MRT property to a pond designated in the application as "Pond II", together with a drawndown structure, referred to as "S-15". Following submittal of the permit application, DER notified MRT of the receipt of the application and advised that both a permit under Chapter 403, Florida Statutes and a license for stormwater discharge under Rule 17-4.248, Florida Administrative Code, would be required. Following review by the Department, during which MRT was notified that the application in its original form would not be received favorably, MRT, on August 21, 1980, revised its application and based on such revisions, the Department, on October 10, 1980, notified MRT of its intent to issue the permit and license sought. As indicated in the Intent to Issue, DER has asserted jurisdiction over the dredge and fill activities in question contending that they are contemplated to either be in or connected to "waters of the State". Specifically, the Department's Intent to Issue states as follows: The Department has permitting jurisdiction under Chapter 403, Florida Statutes, Section 17-4.28, Florida Administrative Code, and Public Law 92-500 over dredge and fill activities conducted in or connected to certain waters of the State. The specific pond in question and the pond to which it is connected constitute waters of the State over which the Department has dredge and fill permitting jurisdiction as defined in Section 17-4.28, Florida Administrative Code. The project is not exempt from permitting procedures. Pond II is approximately four acres in size and consists of a western lobe of approximately one acre. Pond II is connected to the north to a waterbody known as Pond III/Foxcroft Lake". The vegetation in the south portion of Pond III is typical of fresh water vegetation that grows in submerged or wet areas. The vegetation in an existing well-defined channel between Pond II and the proposed location of structure S-15 is also comprised of water-tolerant species. Sagittaria subulata was observed in the channel in the area proposed for location of S-15. This plant species cannot tolerate dry conditions, indicating that water is present in the channel under most conditions. Further, no upland or pioneer species were observed in the channel, which also is indicative of the fact that the channel usually contains water. Water flows from Pond II to Pond III approximately 90 percent of the time. The base flow in the channel is approximately 2 cubic feet per second. Based on the storage capacity of Pond II, it is probable that flow occurs out of Pond II into Pond III under most conditions. Although 88.0 feet mean seal level is the design normal pond elevation expected after construction of S-15, the present observable elevation of Pond II appears to be between 89.94 and 90.09 mean sea level. Observations of the types of vegetation surrounding Pond II supports the conclusion that the existing normal level of Pond II is approximately 90.0 mean sea level. Pond III is a waterbody of approximately four acres in size and is a portion of the continuation of a larger 10 acre body of water referred to in this proceeding as "Foxcroft Lake". Pond III was the subject of a prior Department dredge and fill permit in which it was determined that Pond III constituted waters of the State subject to the dredge and fill jurisdiction of the Department. Pond III/Foxcroft Lake is a lake owned by more than one person, of approximately 14 acres of surface area and a maximum average depth of approximately 3 feet. Pond III/Foxcroft Lake discharges to and is connected directly to a waterbody known as Long Pond. Long Pond in turn is eventually connected to and discharges into Lake Lafayette. Without any mechanisms designed to treat the pollutants expected to be generated by the proposed project, the development by MRT of its 120 acres of property could reasonably be expected to have a significant adverse impact on the waters of Pond II, Pond III and Foxcroft Lake. Scientific studies demonstrate that potential pollutants generated from developments - single family, multi-family and commercial - have a significant impact on receiving waters if not treated before discharged. The project as presently designed will correct an existing source of pollution by removing sediment which is entering Pond II from the south from Shannon Forest Subdivision. This sediment has been deposited in the drainage- way between Shannon Forest and Pond II and is damaging and severely stressing biota in the drainage-way. This sediment has filled a portion of Pond II and could be expected to eventually discharge into Pond III/Foxcroft Lake. The pre-development rate of flow off the project site as it presently exists is approximately 600 cubic ft. per second. The project as proposed will reduce the rate of flow by 50 percent, to approximately 300 cfs. The project incorporates five mechanisms or abatement controls to treat contaminants customarily contained in stormwater: a grassed conveyance system; retention of natural vegetated areas; energy dissipators; sediment traps; and added storage. Grassed conveyance systems treat stormwater by the assimulation by plant communities of dissolved pollutants, such as nutrients, and the deposition of suspended pollutants that have absorbed to the sediment particles. Approximately 50 percent of the conveyance system in the Phase II development will be grassed swales and re-vegetated ditches. As many swales as possible will be used to convey the stormwater from the discharge at the street outfalls to the ponds. The main drainage ditch through the property will also be grassed. Natural vegetated areas to be left around the existing ponds will treat stormwater by assimilation and filtration in the same manner as the grassed swales and ditches. A one-acre parcel of wetlands is to be left between the southern most portion of the drainage-way and Pond II as described in MRT Exhibit No. 8 and in the revised permit application of August 21, 1980. The vegetation downstream of Pond II between the pond and control structure S-15 will also be left intact. Virtually all the vegetation bordering Pond II and Pond III will be left in place. Five energy dissipaters are to be constructed upstream of Pond II. These structures are designed to reduce the existing sedimentation and erosion problems by reducing the energy gradient and allowing the deposition of sediment, upon which absorbed pollutants have attached, into the accompanying sediment traps. Sediment traps are also to be constructed upstream of Pond II. Sediment traps treat stormwater by reducing the velocity gradient. Sediment and the pollutants absorbed to the sediment will drop out due to insufficient velocity. Storage will be increased in Pond II by the construction of control structure S-15 and by the planned excavation of Pond II. Added storage has a beneficial effect on water quality in that it allows additional sediment particles to settle out, allows additional time for the vegetation on the edge of the ponds to assimilate dissolved pollutants such as nutrients, and reduces the peak discharge velocity. The project is in the public interest in that it will alleviate an existing stormwater problem. In terms of probable efficiency, physical needs and costs, the project represents the best available treatment alternative. Based on existing technology, the system designed for this project is the most effective system within reasonable costs. The effectiveness of the stormwater treatment system depends on the presence of vegetation and will require less maintenance and attendant costs. There does not presently appear to be any local government effort to implement stormwater controls to address this problem or source. Petitioner submitted no evidence of such local government efforts. The system proposed by MRT will mitigate not only the effects of the discharge generated by the proposed development of the 120 acres of property owned by MRT, but will also mitigate the effects of an existing source of stormwater pollution. The system, as designed, is sufficient to afford the Department reasonable assurance that stormwater quality standards will not be violated. The parties stipulated that, should the requested permit and license be issued, they should incorporate the following additional condition: Roads and drainage facilities are to be owned and maintained by Leon County. All paving and drainage shall be done in accordance with the County's standards, details and specifications. In addition, MRT has instituted civil litigation against Leon County concerning the property involved in this proceeding. One of the allegations of MRT's complaint is that Leon County has, through the action amounting to inverse condemnation, acquired a drainage easement over the property for which MRT is now seeking the dredge and fill and stormwater permits. The plans submitted to DER by MRT with its application contain the following: When the construction plans for Phase III of the Royal Oaks development are prepared, these plans shall be submitted to the Department for evaluation for compliance with the original stormwater review.
Findings Of Fact Collier Development Corporation, Naples, Florida, owns a triangular tract of land consisting of approximately 16 acres in Naples, Florida. In 1958, the Trustees of the Internal Improvement Fund conveyed by quitclaim deed to Collier Development Corporation all its interests in the property. A 1958 affidavit of Collier's surveyor who prepared the legal description of the land was filed in the Collier County public records and states that the land conveyed by the quitclaim deed was "high land" erroneously shown as bay bottom land according to the original government survey, and that the deed was executed in exchange for the conveyance of certain parcels of bay bottom land in Naples Bay to the Trustees. (Exhibits 1-2) In 1976, Petitioner executed an option agreement with Collier Development Corporation to purchase the land in question, contingent upon certain conditions including a requirement to obtain any required fill permits. On December 27, 1976, Petitioner assigned the option agreement to Michael S. Spiegel and himself as joint tenants. On March 14, 1977, a "short form" application was filed by Petitioner, as authorized by Collier Development Corporation, with Respondent to fill the land above the mean high water line to building grade for future residential, multi-family, or commercial uses. The application reflected that 400 cubic yards of rock riprap would be placed at least five feet upland of the designated mean high water line along the boundary of the property that faced the Gordon River and Rock Creek. The riprap revetment is designed to provide a method of containing upland fill material. The application contemplates that a fabric-like material "Mirafi" will be placed on the ground and wrapped over the riprap barrier. The application further provides that approximately 90,000 pounds of fill material will be trucked into the site and placed behind the riprap material to fill the land to a minimum elevation of four feet. It is also proposed to slope the fill material behind the riprap and plant grass seed thereon. In October, 1977, Petitioner filed a "long form" application which merely amplified the original application. The mean high water line was established by a survey performed under standard procedures and which utilized the existing bulkhead line as a point of reference. The survey was conducted in 1977 and 1978, and the procedures used were approved by and the survey filed in the Department of Natural Resources on June 26, 1978. (Testimony of Park, Lawson, Exhibits 4, 6, 8, 11) By letter dated January 26, 1978, Respondent provided notice of its intent to deny the permit application pursuant to Chapters 253 and 403, Florida Statutes, and Public Law 92-500. The reasons stated for the proposed denial generally were that filling the land would destroy mangrove vegetation which provides a major input of organic material to estuarine tropic webs, and filters and assimilates pollutants from upland runoff. It was stated that the proposed project would eliminate approximately 15 acres of submerged lands and transition zones, as defined in Chapter 17-4, Florida Administrative Code, which would reduce the quality and quantity of the state's marine resources adjacent to Class II waters and "tend to cause degradation of water quality conditions." Thereafter, on January 25, 1978, Petitioner submitted a petition for hearing wherein the jurisdiction of the Respondent in the matter and its grounds for the proposed denial were challenged. (Exhibit 5) The land in question is located south and adjacent to the confluence of the Gordon River and Rock Creek along the north side of U.S. Highway 41. The Gordon River and Rock Creek are tributaries of Naples Bay and all are Class II waters. The area is vegetated by red mangroves with a lesser number of white and black mangroves. A pond of about one-half acre surrounded by red mangroves is located in the southern section of the tract which occasionally overflows into a ditch running parallel to U.S. 41 located within the highway right-of- way. There is a berm alongside the ditch designed to prevent highway runoff from flowing onto Petitioner's land. During high tides, most of the land is inundated to varied depths ranging from two to eight inches. Certain marine vegetational species are present on portions of the land, such as sea grape, sea purslane, sea daisy, and button wood. Certain marine animal life is present in the mangrove area, including coffee bean snails, ribbed mussels, marsh clams, mangrove crabs, fiddler crabs, and mosquito fish. Other marine species, such as common oysters, scorched mussels, and barnacles inhabit the Rock Creek shore line. There is sparse bird population on Petitioner's land that may in part be due to the proximity of Naples Airport. (Testimony of Lawson, Park, Carroll, Fields, M. Spiegel, Exhibits 3, 7, 10) The quality of water in the Gordon River and Rock Creek is adversely effected to some degree by receipt of sewage plant effluent, discharge from nearby canals and runoff from residential and commercial areas. As a result of high bacterial count in these waters, shell fishing and swimming is not permitted. The mangrove forest on Petitioner's property is in a stressed condition as evidenced by the thinness of the canopy. It is probable that this condition was caused primarily by the introduction of fresh water from canals into the surrounding waters. (Testimony of Carroll, Fields, Erwin, Yokel) Mangrove wetlands are an important component of the estuarine ecosystem which provide nutrient stabilization and transformation in the supply of an organic base to the estuarine food chain, filtration of upland runoff, and storage of storm waters. They are a nursery for fish and invertebrate species, and a fish and wildlife habitat. The mangrove system on Petitioner's property is productive and contributing to the needs of marine life in the Naples Bay area. In this respect, most of the detritus produced by the mangrove system occurs below the mean high water line. However, the tidal flow during storm conditions at certain times of the year can release accumulated organic matter from the higher areas. This generally occurs in late summer and early fall when feeding demands of organisms are high. (Testimony of Erwin, Yokel) Although no system for containing surface water runoff was set forth in Petitioner's permit application, it is planned that such runoff will be retained on the site by a site drainage plan that would be accomplished by grading and the use of the existing pond or other means of retention, in addition to the natural percolation into the sandy fill material. (Testimony of Park) The application did not specify the precise distance from the mean high water line at which fill would be placed, but Petitioner clarified this point at the hearing. Fill material will not be placed closer than 100 feet upland of the mean high water line. The mangrove area left intact below that point will enable the ecological system to survive. However, due to the fact that the Naples Bay area does not produce sufficient organic matter to fully support animal life in the area, the loss of a substantial portion of mangroves will impact on the detrital food chain to some extent. (Testimony of Carroll, Yokel)
Recommendation That Respondent issue the requested permit to Petitioner, subject to the modification thereto made at the hearing with regard to the 100' setback as set forth in paragraph 8 of the foregoing Findings of Fact. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1979. COPIES FURNISHED: H. Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Howard Horowitz, Esquire 3550 Biscayne Boulevard Suite 402 Miami, Florida 33137 William Blackwell, Esquire 3003 North Miami Trail Naples, Florida
Findings Of Fact In conjunction with the preparation of plans for widening Dale Mabry Highway in Tampa, Florida, DOT in November 1985, filed a map of reservation which includes 6.49 acres owned by Petitioner. The map of reservation was filed and approved by the Hillsborough County Commission in compliance with all applicable statutes and regulations. The property in question is adjacent to the west boundary of Dale Mabry and south of the Waters Avenue intersection. The purpose of the map of reservation is to restrict building on the property for up to five years pending the filing of condemnation proceedings. DOT intends to use the area for storm water management of the runoff from the additional pacing resulting from the widening of Dale Mabry. The parent tract is 8.3 acres in size while the area encompassed within the reservation map is 6.49 acres. The entire tract is undeveloped, but to the north and south of the property along Dale Mabry Highway industrial and commercial development has occurred. The tract was acquired by the Petitioner in 1969 as an investment and has remained essentially in an undeveloped state since that time. During the period between 1969 and the present the value of the property has gradually risen until today it is sufficiently valuable to warrant development and the cost associated therewith. In the distant past most of this area in the vicinity of this property was wetlands. Prior to the acquisition of this tract by the owners, a drainage ditch, channel H, was dug through an area just west of this tract. That has had the effect of draining part of the area and has impacted on the wetlands function performed by this tract. Some dredging was done on this tract before dredge and fill laws were enacted and the area is no longer a pristine wetland. Both Channel H and the earlier demucking have caused some diminution of the property's wetlands effectiveness. No development plans have been submitted to the Department of Environmental Regulation (DER) for the development of this property. Preliminary surveys of the property conducted by DER personnel indicate approximately fifty percent of the property is wetlands and can be developed only by obtaining a dredge and fill permit from DER. Until such time as development plans are received DER will not commit itself to what developments will be permitted on land subject to DER jurisdiction. The highest elevation on this tract is adjacent to Dale Mabry highway. This area is clearly upland and can be developed without a permit from DER. The map of reservation excludes the portion of the tract running along the west Dale Mabry boundary 165 feet deep. This tract constitutes 1.81 acres (8.3 - 6.49) abutting Dale Mabry. The undeveloped tract currently performs a wetland function in that storm water runoff from the east side of Dale Mabry highway flows through a culvert under Dale Mabry in the vicinity of this property then across this property to Channel H. Similarly, storm water runoff from the west side of Dale Mabry runs south to this property thence to Channel H. Prior to selecting the Petitioner's property for ultimate condemnation to use in the storm water management program necessary for the construction on Dale Mabry, the consulting engineers on the project surveyed the area looking for appropriate sites. This site, another site at the southwest junction of Dale Mabry and Waters, and two sites east of Dale Mabry were considered. The sites east of Dale Mabry consisted of borrow pits. One was too high and would require extensive piping to transport the water to Channel H and the other already has water quality problems which could preclude water from this pit being pumped into Channel H (and from there to state waters). The property at the southwest intersection of Dale Mabry and Waters was deemed to be more valuable for commercial development and would require more development as a storm water management area than the site owned by Petitioners. Petitioner's property will require little, if any, changes to serve the intended function as a waste water management area. This will reduce the cost to DOT for so using the property. After tentatively selecting this site for storm water management the consulting engineers went to DER to obtain information on sites DER would suggest to use for storm water management purposes. DER suggested Petitioner's property and advised of water quality problems in the borrow pit. Both the Hillsborough County Environmental Protection Commission (EPC) and DER are involved in the development of environmentally sensitive areas. In 1984 the EPC advised Petitioner that one of EPC's water quality managers had stated that 85 percent of this property was developable and invited Petitioner to submit preliminary plans for developing 85 percent of the property (exhibit 2). No development plans have been submitted. Despite EPC's 1984 letter, DER exercises ultimate jurisdiction over dredge and fill permits involving wetlands and no such property can be developed exceeding that approved by DER. Accordingly, the 85 percent developable ratio used by Petitioner's witnesses is given little credence. Some three weeks before DOT filed its map of reservation Petitioner entered into a contract to sell this property for $800,000. The contract is contingent on the buyer being able to obtain the permits necessary to develop the property. Several meetings have been held between the buyer, DOT and DER personnel to discuss how the property may be developed and still serve DOT as a storm water management area. No plans for such joint use have been presented to DER. Petitioner presented one witness who opined the property was worth $1,000,000. Presumably that appraisal did not include the 1.81 acres fronting along Dale Mabry which is not included in the map of reservation. The contract to sell the property for $800,000 cash comprised the part included in the map of reservation and the tract 165 feet deep fronting on Dale Mabry. This contract which was reached in an arms length transaction indicates the price a willing buyer is willing to pay a willing seller and is a much more credible sum than is the $1 million appraisal offered by Petitioner's witness. If this witness intended his $1 million valuation to be applicable to the 8.3 acre tract, in estimating the loss to Petitioner as a result of the restrictions imposed by the map of reservation, this witness neglected to deduct the value of the 1.81 acres fronting Dale Mabry highway in reaching that calculation. This witness attempted to place a value on the loss sustained by Petitioner as a result of the inability to market the property after the filing of the map of reservation. In making this calculation he assumed 85 percent of the property to be developable and a value of $1 million. These figures are unsupported by credible evidence and the value arrived therefrom is not credible. Further, the filing of the map of reservation only restricts the issuance of a permit in connection with this property. Petitioner is free to do with the property exactly what it has done with the property since it was acquired in 1969. Although no evidence was presented that the project involving the widening of Dale Mabry in the vicinity of this property will be accomplished on a date certain, the project is scheduled to be let for bids in December 1987. Prior to commencing any work on the project condemnation proceedings for all property involved must be underway. Although this schedule is subject to change if funding is not timely provided, this is not an event expected to occur. DER requires the storm water runoff from additional paving resulting from the widening of Dale Mabry be treated before this storm water runoff is discharged into State waters. Accordingly, it is essential that DOT show capability for storm water management before this project can be approved. Section 337.241, Florida Statutes (1985), was enacted as s. 140 ch. 84-309 Laws of Florida, 1984, and amended slightly by s. 2, ch. 85-149, Laws of Florida, 1985. Some of these provisions were formerly found in s. 335.02(3) and (4), Florida Statutes. The purpose of the filing of a map of reservation is to preclude development of the property, while road construction plans are being prepared which include the use of the property, before the acquisition of the property by DOT. During construction involving the widening of US 19 in Pinellas and Pasco Counties, numerous instances arose where development of property needed for storm water management as a result of widening of US 19 commenced after plans for use of the property had been made but before condemnation of the property by DOT. This resulted in an increase in the cost of acquiring the property.
The Issue The issue for disposition in this proceeding is whether, as alleged in an administrative complaint dated February 20, 1998, Respondent Craig J. Evans committed negligence in the practice of engineering when he erroneously determined that a real property parcel was not within the flood protection zone. If that violation occurred, an appropriate penalty must be recommended.
Findings Of Fact Respondent Craig J. Evans is and has been at all material times a professional engineer licensed in the State of Florida with license no. PE 0033652. He is currently practicing as a professional engineer, and is licensed as such, in St. Croix, U.S. Virgin Islands. In the approximate 15 years that Mr. Evans has been licensed as a professional engineer, the instant proceeding is the first disciplinary action or allegation of professional wrong-doing. In October 1992, Mr. Evans was engineer of record for a residence being built for his father on a parcel now designated as 1588 Chadwick Way, Tallahassee, Florida. On or about October 10, 1992, Mr. Evans signed and sealed a Leon County Flood Protection Certification for the Chadwick parcel in Killearn Lakes, Unit 3, Lot 3, Block B M. This certification was a necessary component of the local permitting process. In the certification Mr. Evans stated that the parcel was at or above the flood protection elevation. After the certificate was filed and the building permit was issued, Fred Varn, then a Leon County building inspector, spoke to Mr. Evans about the inspector's concern that the floor level of the house might be too low. Mr. Varn was aware that some other properties in the area had flooded. Mr. Evans responded that he felt the level was safe, but he was willing to listen and he raised the floor level approximately 16 inches. The house was built and Mr. Evans and his parents lived in it for a short time. It rained during that time and according to Mr. Evans, there was a little bit of flooding on the front of the property and a little of standing water in the back, but neither lasted long. Mr. Evans' parents put the Chadwick house on the market and Mr. and Mrs. George Simonof expressed an interest in purchasing it. In response to the Simonof's surveyor's concerns about flooding, Mr. Evans or his father faxed the October 10, 1992, certification to the Simonofs on June 30, 1994. The Simonofs, in turn, provided the certification to their surveyor and lender. On July 14, 1994, the Simonofs closed on their purchase of the Chadwick house. In early October 1994, Tallahassee experienced severe rainstorms. Between October 6-12, 1994, the Simonof's property on Chadwick flooded. With the help of friends and neighbors, they filled sandbags and placed them around the house. The house did not flood but the backyard was filled with standing water. Contrary to Mr. Evans' certificate, the property on Chadwick is within the flood protection zone. When he determined the location of the flood zone, Mr. Evans scaled from Federal Emergency Management Area (FEMA) maps to a plat map showing the lot's location. He erred in the plotting process, a common error, but one that a prudent engineer would be more careful to avoid. Initially, the Chadwick property appeared to Mr. Evans to be in the flood zone, so he rechecked his work by pulling certificates on two lots nearby and found they were not certified in the flood zone either. He was somewhat familiar with the property as he used to jog in the Killearn area. He had no personal knowledge of flooding there prior to his certification. Mr. Evans did not exercise due care in preparing his flood zone certification and was negligent in the practice of engineering. If he had checked his plotting, he would have realized there should have been more distance between his 2100 and 1600 feet lines. Further, in close cases, a survey should have been obtained. It was not sufficient that Mr. Evans attempted to check his work against two certifications of other lots in the area; he did not know the engineers who did the work and could not be certain of their certificates' relevance or accuracy. He did not speak with other property owners in the area nor did he seek information from Leon County staff who would be familiar with flooding problems. To Mr. Evans' credit he raised the house elevation upon query by the building inspector and the house did not flood. However, the buyers of the property relied on his erroneous certificate and suffered some loss due to the flooding.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the Board of Engineers issue its Final Order finding Craig Evans guilty of negligence and assessing a fine of $750. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1998. COPIES FURNISHED: Natalie A. Lowe, Esquire Department of Business and Professional Regulation Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301-0750 Dennis Barton, Executive Director Board of Professional Engineers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 E. Renee Alsobrook, Esquire Post Office Box 10426 Tallahassee, Florida 32302-0426
The Issue Whether the Department of Environmental Regulation should grant a dredge and fill permit to James N. and Janice E. Nash authorizing removal of eleven cubic yards of soil, installation of five 24-inch culverts in lieu of two 18- inch culverts, and placement of 19 cubic yards of limerock in and around the bed of an unnamed creek near the point it reaches the Alford Arm of Lake Lafayette in Leon County, Florida?
Findings Of Fact More than a thousand acres in eastern Leon County comprise the drainage basin giving rise to the unnamed stream that intermittently wends its way across the Alvarez property, crosses the 30-foot wide "tongue" of the Nashes' lot, and traverses the Saltiels' land on its way to the Alford Arm of Lake Lafayette (unless it reaches Alford Arm earlier because rain or other conditions have raised the lake, moving the water's edge upland.) Although neighbors allow them ingress and egress by another route, when flooding makes the roadway impassable, Mr. and Mrs. Nash have no legal right of access other than by the private road which crosses the intermittent stream. In addition to wetlands on either side, part of the streambed, 15 feet wide where it meets the roadway, was originally filled in 1968, when the private drive was built. The strip of land, 30 feet wide and 700 feet long that underlies most of the private road, joins the part of the parcel where the Nashes' house stands to Deep Wood Trail, the public thoroughfare which the private road enters. Leaving a car on the Deep Wood Trail side of the stream, wading across to the other side, and hiking to the house pose difficulties for Mr. Nash, who has muscular dystrophy. Under some conditions, the roadbed acts as a dam. When the lake is low, water flowing downstream may be impeded. When the lake is high, backwater moving in the other direction may be impeded. Of the two culverts installed when the private road was constructed, each with a diameter of 18 inches, only one permits water to flow through now, and even it is partially clogged. When Lake Lafayette rises above 45.3 feet NGVD, Alford Arm spills over the terrain between it and the Nashes' road, and reverses the flow in the streambed where it intersects the roadway. The "invert of the stream at the subject crossing [is] 44.3 feet [NGVD]." T.402. The roadbed is submerged in the vicinity of the stream when Alford Arm rises above 46.7 feet NGVD. The Nashes propose to excavate the streambed (about two and a half feet deep in the natural channel on either side of the existing fill) where it crosses (diagonally) the Nashes' private road, remove the existing culverts together with the soil in which they are embedded, install five culverts, each 24 inches in diameter, in their stead, install cement bag riprap at the ends of the culverts, remove 11 cubic yards of dirt from a 205' by 10' wide section of existing road surface and replace with 19 cubic yards of lime rock surface, Nashes' Exhibits Nos. 5 and 6, realigning the roadway slightly (to avoid the existing encroachment on the Saltiels' property) and increasing the roadbed's elevation over a 205-foot stretch by no more than four inches. Five trees are to be removed, but other trees are to be protected "by tree protection barricades." Nashes' Exhibit No. 7A. Filter fences upstream and down would contain turbidity during construction. The plan is to lay sod and plant grass seed afterwards in order to prevent erosion. Larger culverts would permit the flow of a greater volume of water at lower velocity, more closely approximating the natural regime and reducing scour or erosion downstream. Even when water levels exceeded the elevation of the existing roadbed, more water than the existing culverts can accommodate could move through the proposed replacement culverts, and at a slower velocity. At water levels above the existing grade and below the proposed, slightly higher grade, however, the four inches or less of limerock added to the roadbed would act as a (presumably somewhat porous) barrier to flows that could now move over the roadway unimpeded. The proposed improvements would have no discernible effect on water levels whenever Alford Arm overtopped the roadbed. Ted L. Biddy, the professional engineer called as a witness by the Nashes, testified that a 25-year return two-hour storm would raise water immediately upstream of the roadway, when runoff concentrated there, to levels above the existing roadway grade, assuming that the drainage basin was saturated at the time of the rainfall and that all ponds within the basin were full, but that the level of Lake Lafayette was at or below 45.3 feet NGVD. T.489. "Ordinary high water for Alford Arm is 45.7 [feet NGVD.]" T.486. On this record, it can only be a matter of speculation how often (if ever) a 25-year return, two-hour storm might be expected to occur after rainfall has saturated the ground and filled all ponds in the drainage basin without raising the lake above 45.3 feet NGVD. The wet conditions Mr. Biddy assumed already to obtain in the drainage basin at the time of the hypothetical storm seem unlikely to coincide with the low lake level assumed to occur simultaneously. Alford Arm's 100-year flood level is 51 feet NGVD, "50.25 for the 25 year flood or rainfall, and elevation 49.9 for the 10 year storm water event." T.425. In any event, flooding of the Saltiels' property attributable to the proposed raising of the roadway would last only a matter of hours every quarter of a century according to Mr. Biddy, and would represent temporary diversion of water that would otherwise have flooded their property downstream of the roadway. Even then, no house or structure on the Saltiels' property would be affected nor any part of their property not within the 100-year flood plain. At all water levels below the existing roadway grade, the overwhelmingly more frequent condition, larger culverts would prevent or diminish flooding that might otherwise reach the Saltiels' property upstream of the roadway. By impeding flows downstream, the roadway affords some solids suspended in the water an opportunity to precipitate, instead of being borne on into Alford Arm. Under certain conditions, the larger culverts proposed by the Nashes would reduce time for particulate matter to settle upstream of the roadway; the greater volume of flow through larger culverts would reduce the time water was impounded upstream. Uncontroverted expert testimony established, however, that any increase in turbidity in water reaching Alford Arm would not violate applicable standards.
Recommendation It is, accordingly, RECOMMENDED: That DER issue a dredge and fill permit to Mr. and Mrs. Nash for the project described in their application on the conditions stated in the notice of intent to issue. DONE and ENTERED this 28th day of August, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 28th day of August, 1992. APPENDIX Petitioners' proposed findings of fact Nos. 2 and 10 have been adopted, in substance, insofar as material. With respect to petitioners' proposed finding of fact No. 1, what knowledge petitioners are charged with is a matter of law. Petitioners' proposed findings of fact Nos. 3, 4, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 31 pertain to subordinate matters. Petitioners' proposed findings of fact Nos. 5, 6 and 32 pertain to immaterial matters as does petitioners' proposed finding of fact No. 9. Only the dredge and fill permit DER proposes to grant the Nashes is at issue. With respect to petitioners' proposed finding of fact No. 30, the calculations of both Mr. Flatt and Mr. Biddy seem to be flawed. With respect to petitioners' proposed finding of fact No. 33, it is not clear that the proposed project would increase the flooding on the Saltiels' property significantly. Temporally de minimis, the change might amount only to relocating the flooding. With respect to petitioners' proposed finding of fact No. 34, see finding of fact No. 12. With respect to petitioners' proposed finding of fact No. 35, larger culverts will decrease the velocity of the flow through the culverts. Petitioners' proposed finding of fact No. 36 is immaterial because it does not relate to any applicable rule or statutory standard. With respect to the individual respondents' and intervenor's (applicants') proposed findings of fact Nos. 1 and 2, the application does not specify dredge and fill. The applicants' proposed findings of fact Nos. 3, 4, 5, 7, 8, 10, 17, 18, 19, 20 and 32 have been adopted, in substance, insofar as material. With respect to the applicants' proposed finding of fact No. 6, backwater flows at levels above 45.3 feet NGVD. With respect to the applicants' proposed finding of fact No. 9, the OHW is 45.7 feet NGVD. With respect to the applicants' proposed finding of fact No. 11, testimony so implied. With respect to the applicants' proposed finding of fact No. 12, Mr. Nash suffers from muscular dystrophy. The applicants' proposed findings of fact Nos. 14 and 15 pertain to subordinate matters. With respect to the applicants' proposed finding of fact No. 16, the only testimony regarding flooding concerned the critical 25-year return storm. With respect to DER's proposed findings of facts Nos. 1 and 2, the application does not specify dredge and fill. With respect to DER's proposed finding of fact No. 3, backflows begin at 45.3 feet NGVD. With respect to DER's proposed finding of fact No. 4, not all fill would be removed. With respect to DER's proposed finding of fact No. 5, testimony so implied. With respect to DER's proposed finding of fact No. 6, no statute or rule specifies a design storm. DER's proposed finding of fact No. 7 is really a conclusion of law. With respect to DER's proposed finding of fact No. 8, less settling may result in more suspended solids under some conditions. DER's proposed findings of fact Nos. 9, 10, 11 and 12 have been adopted, in substance, insofar as material. DER's proposed finding of fact No. 13 is immaterial to the merits. COPIES FURNISHED: John A. Barley P.O. Box 10166 Tallahassee, FL 32302 Donna H. Stinson Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. 118 North Gadsden Street Suite 100 Tallahassee, FL 32301 Candi E. Culbreath Patricia Comer 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carlos Alvarez c/o Hopping, Boyd, Green & Sams 123 South Calhoun Street Tallahassee, FL 32301 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues to be decided in this case are whether Respondent is liable for the violations charged in the NOV, whether Respondent should pay the penalties assessed in the NOV, and whether Respondent should be required to take the corrective actions demanded in the NOV.
Findings Of Fact On August 7, 2014, Petitioner issued the NOV, charging Respondent with failure to maintain its stormwater facility in compliance with its permit and state law. Respondent filed an answer and request for a hearing. The matter was referred to the Division of Administrative Hearings. Petitioner Department of Environmental Protection (“Department”) is the state agency having powers and duties related to the regulation of stormwater facilities. Respondent Classic Homebuilders Incorporated is a Florida corporation and holds a General Stormwater Permit issued by the Department for the construction and operation of a stormwater facility at 5100 Terra Lake Circle, Pensacola, Florida. On April 9, 2013, Department staff inspected Respondent’s stormwater facility and determined that the ponds do not percolate within 72 hours as required by the permit. On July 23, 2014, Department staff inspected the facility again and determined that the percolation problem had not been corrected. Debris and silt were observed in the stormwater facility. Respondent has not submitted an “as-built” certification. The Department incurred $500 in expenses associated with its investigation of this matter. That is a reasonable amount.
The Issue The issues to be resolved in this proceeding concern whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit concerning property they own located in the vicinity of the Suwannee River in Dixie County, Florida. A related issue concerns whether the Petitioners are entitled to seek a variance from the permitting statute and rules at issue in view of Executive Order 90-14 issued by the Governor on January 1, 1990. The Department takes the position that this removes its discretion to consider variance requests for proposed OSDS installations for sites which lie beneath the ten-year flood elevation of the Suwannee River. See Rules 10D-6.043 through 047, Florida Administrative Code, and Section 381.272, Florida Statutes.
Findings Of Fact The Petitioners purchased real property approximately two miles downstream on the Suwannee River from the point where U.S. Highway 19 crosses the Suwannee River in Dixie County, Florida. They purchased the property on June 6, 1986. The property is located upon a canal which ultimately connects with the Suwannee River. The purchase price of the property was $15,000.00. The applicants paid $3500.00 as a down payment and thereafter have made payments on a Purchase Money First Mortgage in the amount of $255.83 per month. They purchased the property as an investment and as a place to construct a vacation home in the future. On or about February 1, 1990, the applicants filed an application to install an OSDS with the Dixie County Unit of the Florida Department of Health and Rehabilitative Services. An application for a variance from the permitting rules regarding installation and operation of OSDS's was also submitted. The applicant, Ricky R. Robson, applied for the variance apparently because his neighbor, the owner of the adjacent lot, had previously sought and obtained a variance the year before, authorizing him to construct a "mounded OSDS" on his property. The Petitioners, as required by the Department, obtained the services of a registered land surveyor, Herbert C. Parrish, Jr., to perform an elevation survey of the property and the installation site. That elevation survey was submitted with the application documents and showed the surface grade elevation of the installation site to be 11.8 feet above MSL. The Petitioners were also required by HRS to obtain a determination of the ten-year flood elevation for the property from the District. The initial report obtained from the District indicated that the elevation of the ten-year flood plain at the location of the Petitioners' property was 15 feet above MSL. On or about February 23, 1990, the Dixie County Environment Health Officer made an on-site inspection of the property. This inspection included soil borings and a general inspection of the property. The soil borings performed did not reveal the presence of any soil type which would preclude the installation of an OSDS. No vegetative species indicative of frequent flooding were noted. Nevertheless, the health officer determined that the property was subject to "frequent flooding" based upon the District's flood elevation report concerning the ten-year flood elevation. Therefore, the Petitioners' application for an OSDS permit was denied on that basis and on the health officer's belief that Executive Order 90-14 prohibited further construction of OSDS's, including mounded systems within the ten-year flood elevation. In his testimony at hearing, however, Mr. Fross acknowledged that his earlier reference to "frequent flooding" was in error and, indeed, the site is not subject to frequent flooding. The Petitioners elected not to pursue the application for variance after they were informed by the Environmental Health Officer that pursuing such a variance would be futile. This was because no further variances were to be considered or granted by the Department due to the perceived effect of the Governor's Executive Order 90-14 referenced above. That Executive Order adopted, by reference, the "Suwannee River Task Force" recommendation and precluded the installation of OSDS's below the ten-year flood elevation because of risk to health and to ground or surface waters. Subsequent to the initial denial of the application, the Petitioners supplied more detailed information regarding the location of their property to the District and the District issued an amended flood elevation determination indicating that the actual ten-year flood elevation at the location of their property is 14.64 feet above MSL. It has been established in this proceeding that that is the ten-year flood elevation at the Petitioners' property and installation site. There is, thus, a 2.84 foot difference between the surface elevation of the Petitioners' installation site and the ten-year flood elevation. The installation site is characterized by slight-limited soils, consisting of fine sand extending at least 72 inches below the surface grade of the installation site. Additionally, the wet season water table was found to be at least 72 inches beneath the surface grade of the property. Thus, in terms of soil characteristics and water table elevations, the site is certainly appropriate, under the guidelines contained in the rules cited herein, for installation of a conventional subterranean septic tank and drain field system, but for the deficiency under Rule 10D-6.047, Florida Administrative Code, concerning the bottom surface of the drain field or absorption beds being beneath the ten-year flood elevation. The Petitioners have proposed an alternative solution to the problem involving the surface elevation of the property. That solution would involve the installation of a mounded system which would raise the bottom surface of the drain field trenches or absorption beds above the ten-year flood elevation. The Petitioners, in essence, propose to accomplish this by compliance with Rule 10D- 6.049, Florida Administrative Code, which contains specifications and requirements concerning installation of a base filled area surrounding a mound and requirements concerning placement of the septic tank and drain field within that mound. Given the requirements of that rule which limits the mound to a 36- inch height, but allows a base pad of fill of appropriate soils to be placed beneath the mound before its construction, it is obvious, given the 2.84 foot differential between the surface grade of the installation site and the ten-year flood elevation, that installation of such a mounded system would amount to a feasible alternative OSDS which will raise the drain field trench bottoms above the ten-year flood elevation. In conjunction with the six feet of appropriate soil above the wet season water table, this will assure that public health and ground or surface waters are not harmed or degraded by the installation and operation of such a system. Rule 10D-6.047 clearly envisions that installation of such fill, including a mound for such a system, can be accomplished where it references the "final lot elevation at the site of the proposed system installation . . .", as does Rule 10D-6.049, Florida Administrative Code, where it provides detailed specifications regarding construction of mounded systems and references them as "alternative systems." It should be pointed out, however, that although such a system has been established to be a reasonable alternative OSDS within the meaning of the subject rules at issue, Rule 10D-6.047 proceeds to require that the installation of such a mounded system on property which lies within the regulatory flood way requires a certification of an engineer, registered in the State of Florida, to the effect that the installation of the fill and mound will not serve to alter the "base flood". That engineering evidence and certification has not been adduced in the proof in this proceeding, even though the District, as well as the Department, has approved the installation of such a system on the Larry Gilbert lot, immediately adjacent to the Petitioners' lot, without requiring a "works of the District permit" from the District. The approval of such a similar system on the property with similar elevation immediately adjacent to the subject property might indicate that the Department has a policy of interpreting its rules to allow such mounded systems on property within the ten- year flood elevation, provided that such mounds raise the drain fields above the ten-year flood elevation. It has not been proven, however, that the fact that the District did not require a "works of the District permit" should be and has been interpreted in the past to be equivalent to the engineer's certification required by Rule 10D-6.047. Consequently, a grant of an OSDS permit for such an alternative system for these Petitioners should be conditioned on the provision of such engineering certification, calculations and data to the Department. The Petitioners' property is designated as Lot 24 of Highpoint Suwannee River Front Estates, a platted subdivision. The adjacent lot is Lot 23, owned by Larry Gilbert. The ground elevation of the Gilbert lot is approximately identical to the elevation of the Petitioners' lot. On or about July 14, 1988, Mr. Gilbert made an application to the Department for installation of an OSDS upon his property. The District, in that same month, issued a letter finding that the Gilbert lot was not subject to frequent flooding. The District also indicated in that letter that the installation of 42 inches of suitable soil on the lot would be sufficient for the installation of a mounded in-ground OSDS and that installation of such a system would not violate District rules regarding construction of obstructions in the regulatory flood way. Based upon that information, Mr. Gilbert was able to obtain a variance from the Department's variance board permitting him to install what is known as a "National Sanitation Foundation class I aerobic treatment system" on the property. After obtaining that variance, Mr. Gilbert requested an informal hearing before a Department Hearing Officer regarding the variance board's denial of his request to construct a conventional, but mounded, in-ground OSDS. Following that informal hearing, the Hearing Officer recommended that Mr. Gilbert be permitted to construct a traditional in-ground OSDS utilizing only 36 inches of fill. That informal order was adopted by HRS in a Final Order; and the 36-inch mounded system was constructed upon the Gilbert property, adjacent to the subject property and passed the Department's final inspection.
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 in this proceeding granting the Petitioner an OSDS permit authorizing construction of a mounded septic tank and drain-field system, in accordance with the requirements of Rules 10D-6.046, 10D- 6.047, 10D-6.049, Florida Administrative Code, and in accordance with the conditions discussed and found hereinabove. DONE and ENTERED this 7th day of March, 1991, in Tallahassee, Florida. P. 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 7th day of March, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1-18. Adopted. Respondent's Proposed Findings of Fact 1-17. Adopted. COPIES FURNISHED: 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 Robert Moeller, Esq. P.O. Drawer 1419 Cross City, FL 32628 Frances S. Childers, Esq. Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
