The Issue The issues for disposition are whether BJM Associates, Inc. is required to apply for and obtain a drainage connection permit pursuant to rule 14-86, Florida Administrative Code, and if so, whether BJM Associates, Inc., has failed to obtain that permit.
Findings Of Fact Respondent, BJM Associates, Inc. (BJM) is the owner and developer of Rosetta Villas Subdivision, located in Orange County, Florida, (Respondent’s prehearing Statement) Petitioner, Department of Transportation (D0T) purchased an adjacent parcel, including a retention pond, “Pond A”, in 1991, in anticipation of a road-improvement or extension project for Maitland Boulevard. The pond was purchased from Rose Industrial Park, a permitted development also adjacent to the pond. Rosetta Villas Subdivision received Orange County subdivision approval in 1986 and 1988, and a St. John’s River Water Management District permit for stormwater facilities in 1991. Lots have been platted, streets have been constructed and homes have been sold. Rosetta Villas Subdivision includes a water retention pond on-site, built in 1995. There is a pipe from that pond which discharges water into a ditch that is partially within the DOT right of way. The ditch has a 30-inch concrete pipe which discharges into DOT’s Pond A. There is some indication in the record that a diversion ditch was part of an over-all permit for the Rose Industrial Park development prior to DOT’s purchase of Pond A. The diversion ditch was intended to convey stormwater around, and not into Pond A. The diversion ditch south of Rosetta Villas and north of Pond A does not convey Rosetta Villas’ run off around Pond A. Instead the 30-inch concrete pipe conveys Rosetta Villas’ overflow water into Pond A. The 30-inch concrete pipe was constructed by BJM in 1995 after an existing, much smaller, pipe became clogged. BJM contends that the pipe was replaced at the direction of someone from DOT. While that contention is not disputed, nothing in this record supports any suggestion that DOT is now estopped from requiring a drainage connection permit. At hearing BJM’s own expert witness opined that the 30-inch pipe which now discharges into Pond A requires a connection permit. (Transcript, p. 130) BJM does not have that permit and, after meetings and extensive discussion with DOT staff, has not applied for the permit.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the Department of Transportation issue its Final Order requiring BJM to apply for a drainage connection permit pursuant to chapter 14-86, Florida Administrative Code. DONE and ORDERED this 24th day of February 1997 in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February 1997. ENDDNOTE 1/ BJM presented extensive evidence regarding the diversion ditch or swale and its intended purpose. It may be possible for BJM to redirect its out-flow however, the current status of the drainage system. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Transportation Burns Building, Mail Station 58 608 Suwannee Street Tallahassee, Florida 32399-0458 Bernard J. Martin, Esquire 506 Wymore Road Winter Park, Florida 32789 Pamela Leslie, General Counsel 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn.: Diedre Grubbs Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue to be resolved in this proceeding concerns whether the Board of Trustees should deny David Cook's request for a Butler Act Disclaimer, in consideration of Section 18- 21.019, Florida Administrative Code.
Findings Of Fact The Petitioner, David Cook, is in the commercial fishing business, operating his business in Fernandina Beach on the Amelia River. The Respondent, Trustees, is an agency of the State of Florida which holds title to sovereignty submerged lands on behalf of the people of the state, in accordance with Chapter 253, Florida Statutes. The Trustees is the agency responsible for issuance of disclaimers to formerly sovereignty submerged lands under the Butler Act and other similar riparian acts. The Department serves as staff to the Trustees. In November 1999 the Petitioner submitted an application to the Department for a disclaimer to certain submerged lands pursuant to Section 253.129, Florida Statutes and Rule 18-21.019, Florida Administrative Code. The application was on DEP Form 63-031(16) ("Form"). The above Rule adopts and incorporates that Form by reference as part of the Rule. The Butler Act transferred title to certain sovereignty submerged lands to the adjacent, upland, riparian owners if and when they filled, bulkheaded, or permanently improved the submerged lands. The Butler Act, enacted in 1921, was retroactive to 1856. It was repealed by implication in most Florida counties on May 29, 1951. A riparian upland owner who has acquired submerged lands under the Butler Act does not have to apply for disclaimer under the Trustees' Rule. The Act conveyed the lands, so the owner is not required to do anything. If an owner needed to prove up his title, he could also file a quiet title action. In order to avoid forcing owners to file such actions, the Trustees provided the Rule as an alternate mechanism to save the applicant time and expense involved in litigation. Kathy Miklus, a Planning Manager in the Title and Land Records Section of the Bureau of Survey and Mapping in the Division of State Lands of the Department, received and began reviewing the Petitioner's application. Upon reviewing the application she determined the application was incomplete. On December 23, 1999, Ms. Miklus wrote a letter to the Petitioner, advising him that the Trustees had placed a moratorium on applications for disclaimers involving "permanent improvements," but that staff was requesting the Trustees to lift that moratorium since the decision was handed down in the case of City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund, 746 So. 2d 1085 (Fla. 1999). Ms. Miklus also advised the Petitioner in this letter that he had not submitted a survey or satisfactory evidence of title to the riparian uplands, required by the Rule referenced above. The Petitioner did not respond to the letter. On April 6, 2000, Ms. Miklus faxed a copy of the December 23, 1999, letter to the Petitioner, with a cover sheet reminding him that his application was still incomplete, and that she still needed the items stated in her letter. The Petitioner called her in July of 2000 about the status of the application. On July 26, 2000, Ms. Miklus called him back and advised him for the third time that he needed to submit the survey and proof of upland ownership required by the Rule. On August 14, 2000, the Petitioner submitted some county tax information. On October 10, 2000, Ms. Miklus asked him again for a survey. On December 4, 2000, the Petitioner called and stated that he had filed a lawsuit a month earlier, and on January 18, 2001, the Petitioner called Ms. Miklus again. Ms. Miklus called him back and left a message to the effect that she still needed the survey. On January 23, 2001, Ms. Miklus called the Petitioner and told him that she had located his "survey" and a map. Ms. Miklus continued to receive calls from the Petitioner, even after she had turned processing of the case over to Jody Miller for further processing. Mr. Miller is an Engineer II in the Title and Land Records Section of the Bureau of Surveying and Mapping. He prepared drawings and field surveys in the private sector for two years, and subsequently worked for DEP for two years as an Engineering Technician IV and for another two years as an Engineer I. Mr. Miller has two years of study at Tallahassee Community College in civil engineering technology. He has also received additional training in minimum technical standards, surveying law, surveying mathematics, and "AutoCAD." He has reviewed surveys in his present position for 10 years. He was qualified and accepted as an expert in survey review. His area of responsibility is reviewing boundary surveys and mean high water line surveys for the State. Butler Act surveys generally involve both. Mr. Miller continued to try to collect the information required by the Rule from the Petitioner. The Petitioner's application was different and more complex than the normal Butler Act application because it was for a "permanent improvement" that no longer existed, rather than for existing land fill. This makes the area to be disclaimed more difficult to locate and precisely define as to "footprint" and/or boundaries. Mr. Miller reviewed the document that the Petitioner had submitted in January 2001 and determined that it was not a survey. Rather, it was a "sketch of description." Further, it did not give a legal description of the footprint of the structure that existed prior to May 29, 1951, nor did it show the mean high water line or the location of any structure built before 1951. Mr. Miller testified that there were other problems with the sketch of description as well. The Petitioner, according to the sketch of description, was attempting to claim a large area covering nearly all of the adjacent submerged lands in the marina, except for the submerged lands waterward of the railway. He did not merely limit his claim to the location, size and shape of the permanent improvements built under the Butler Act. Without the correct legal description of the area that was permanently improved under the Butler Act, Mr. Miller was unable to prepare a disclaimer for the Trustees' execution. Subsequently, Mr. Miller worked with the Petitioner, and two of the Petitioner's attorneys, Clinch Kavanaugh and Jeff Brown, and the Petitioner's surveyor, Mike Manzie, in order to help the Petitioner comply with the Rule. Mr. Miller also visited the site in Fernandina Beach. He conferred with the Petitioner's surveyor Mr. Manzie. Despite all this, the Petitioner never provided all of the items required by the Rule in order to issue a disclaimer. Because the Petitioner never provided the information required by Section 5 of the Form incorporated in the Rule, Mr. Miller recommended denial of the application to his supervisor, Scott Woolam. Mr. Woolam is a Professional Land Surveyor Manager with the Department who supervises the Title and Land Record Section and the Management Survey Section of the Bureau of Survey and Mapping. He holds a bachelor of science degree in land surveying. He has taken additional courses in legal principles, wetlands, and title and has instructed seminars in his field dealing with the statute and rule at issue here, as well as other sovereignty land issues. Mr. Woolam is published in his field. He was qualified and accepted as an expert in surveying and mapping. The Petitioner's application was pending during the Trustees' moratorium on "permanent improvement" disclaimers. However, the moratorium was lifted prior to the time the Petitioner's application was denied. Meanwhile, the Department continued to process the application. The Department's counsel advised Mr. Woolam that the Petitioner had filed lawsuit in the local circuit court during the pendency of his application and Mr. Woolam was told not to communicate directly with the Petitioner without counsel being present. Meetings were held with counsel present to try to resolve the remaining issues. Mr. Woolam conferred with Ms. Miklus and Mr. Miller about the status of the application. They came to a consensus opinion that the Petitioner had not complied with the requirements of Section 5 of the Form and Rule. The sketch of description provided in January 2001 did not identify the mean high water line, did not locate the permanent improvements prior to 1951, and did not explain the methodology used to support the applicant's description of the entire pre-empted area. These items are required by paragraph 5 of the Form. Mr. Woolam discussed the application with Terry Wilkinson, his supervisor, and prepared a letter recommending denial for Mr. Wilkinson's signature. Terry Wilkinson has been with the Department in the Bureau of Surveying and Mapping for 18 years. He spent the last 16 years as Bureau Chief. He is a professional land surveyor and before his employment with the Department worked in the private sector performing coastal surveys, guaging of tides and mean high water line surveys. He also directed field work for surveys. In his present position, he oversees a bureau that reviews surveys, prepares surveys, administers Chapter 177, Part II, Florida Statutes, which provides that the Department shall approve and assist with all mean high water line surveys, and he determines ordinary high water lines and makes title determinations on behalf of the Trustees. Additionally, he has taught seminars on the foregoing subjects and has received awards in his fields. He was qualified and accepted as an expert in surveying and mapping and in determining title to public lands within the scope of Chapter 253, Florida Statutes. One of Mr. Wilkinson's job duties is to administer the Rule that governs Butler Act disclaimers. Mr. Wilkinson conferred with Mr. Woolam about the proposed denial of the Petitioner's application and agreed that the application did not comply with the Rule because it was incomplete. On July 16, 2002, Mr. Wilkinson issued a letter notifying the Petitioner that his application was denied. The July 16, 2002, denial was based on the fact that the Petitioner's application did not have a legal description of the areas for which the disclaimer was requested, nor a survey showing the pre-1951 improvements and their relations to the current facility. The July 16, 2002, denial letter also indicated that the information lacking from the application had been requested by written communication dated December 23, 1999 and April 6, 2000, and in verbal conversations with the Petitioner and his counsel. In March 2003, after receiving instructions from Mr. Miller, the Petitioner submitted a survey prepared by Mr. Manzie. Although the Manzie survey was offered by the Petitioner at the time of hearing, it was not admitted into evidence. Even had it been admitted into evidence it still did not comply with Section 5, of the Form. Mr. Miller reviewed the March 2003 survey and found a number of technical errors in it. It did not have a true mean high water line, as required by the rule, the disclaimer area was expressed in two legal descriptions instead of one; one of the survey calls was reversed and the areas showed incorrect calculations. The new survey had one substantial error in that it did not show the "footprint" of the improvement that existed prior to May 29, 1951. It was not tied to any type of lots, blocks or streets, and it did not show the saw-tooth docking structure that appears in most of the Petitioner's photographic and other evidence. Therefore, even if it had been admissible, it would still be deemed incomplete under the rule. The Department acknowledges that the Petitioner may own some of the submerged lands pursuant to the Butler Act because permanent improvements existed on them prior to 1951. However, the Petitioner has not provided sufficient proof of where the permanent improvements lie on the ground in order to issue a disclaimer. The Petitioner states that he owns uplands in Fernandina Beach, Nassau County, on the Amelia River in Section 17, Township 3 North, Range 28 East. He presented numerous deeds which were accepted into evidence. The first deed is a patent from the United States to Florida dated July 9, 1891. Although part of it is illegible it appears to include unsurveyed parts of the land claimed by the Petitioner. The second deed, Trustees Deed No. 14,536, dated December 31, 1891, apparently conveys some of the same unsurveyed lands to Samuel A. Swann. Another Trustees Deed No. 14,537, dated the same day, deeds more lands in Petitioner's area to Samuel Swann, Trustee. Trustees Deeds No. 13,490 and 13,491 dated September 13, 1886, apparently provide railroad right-of-way from Fernandina to Cedar Key to the Florida Railroad Company. The Petitioner also presented four deeds that appear to be from Fernandina Dock and Realty Co., to Nassau Wharf Company, J.H.P. Merrow, and John R. Hardee, respectively. The Petitioner submitted a Trustees Disclaimer No. 23141, dated July 20, 1962, to the City of Fernandina Beach, which states "[t]he disclaimer is needed by the city to clear question of title." Neither the disclaimer nor any of its attachments shows that it was a Butler Act Disclaimer. The Murphy Act Deed from the Trustees, No. 199, to the Hardee, Trustees appears to be a portion of one of the "water lots" that the Petitioner claims to own. The final deed is from Samuel A. Swann to the Fernandina Dock and Realty Company, recorded January 18, 1902. None of these deeds appears to convey title to the Petitioner nor has he established any chain of title from any of the grantees to himself. In any event, however, this forum may not opine on issues of title to real property which is a matter reserved for the Circuit Courts of Florida. The Petitioner also presented seven color photographs, referred to at hearing as the "modern" photographs which were admitted into evidence. Certain other historic black and white photographs that were offered by the Petitioner were not admitted into evidence. The modern photographs all show various structures and/or pilings located on the submerged lands adjacent to the uplands the Petitioner states that he owns. The photographs are not to scale, and none of them were taken directly overhead, so measurements cannot ascertain the size of any structure that was there. Additionally, they had no verified dates, and the Petitioner admits that none of them were taken prior to May 29, 1951. The Petitioner identifies a number of remnants which may have been pilings. They are of unknown origin and age and their significance was not shown. Further, there was no showing that conditions in the photographs also prevailed 52 years ago. The Petitioner is not a surveyor and chose not to have his surveyor testify. There is no testimony about the size of the structure. The Petitioner's Exhibit 8, Sanborn maps, was not admitted into evidence. Two aerial photographs, taken by the Florida Department of Transportation, dated 1943 and 1953, were admitted into evidence. The 1953 aerial photograph is not relevant because it was taken after the Butler Act was repealed. The 1943 photographs reveal that there was a long, narrow structure, perhaps a walkway, extending to a small terminal platform that bears no resemblance to the "Area for Disclaimer" identified in the Petition. The photograph merely shows that some structure was present in 1943. The Petitioner's United States Army, Corps of Engineers maps show a "Nassau Wharf Co." structure, that he apparently claims, which is a saw-toothed docking structure that is not clearly located in relation to the Petitioner's modern- day facility. The saw-toothed docking structure was an antiquated dock design to allow for the efficient mooring of sailing ships with lengthy bow sprits which would jut over the wharf area. Depths shown on the maps are not helpful in locating the pre- 1951 structure. A Petitioner witness, Mr. Knetsch, testified that the primary purpose of the Army Corps maps was navigation, not locating structures. The saw-tooth wharf configuration is not substantiated by the 1943 photograph which shows a narrow structure with a small terminus, or the 1933 Coast and Geodetic Survey, which shows a structure similar to the 1943 structure. The saw-toothed dock was evidently removed before that time. None of the evidence admitted shows that the Petitioner conformed to the requirements of the Form in Section 5 of the Rule. Section 5.A.(1) requires a "[p]resent mean high water line surveyed and approved in accordance with Chapter 177, Part II, Florida Statutes. . ." The Sketch of Description provided in January 2001 is not a mean high water line survey and shows no approval by the Department. It shows "approximate mean high water line." Section 5.A.(3) requires "[t]raverse of fill [permanent improvement] showing location of the former mean high water line, with a land tie to an established accessible section, other U.S. Government Land Office Survey Corner, or other controlling corner[s]." The permanent improvement is not located, and no tie to any of the requisite corners is shown on the sketch of description. Section 5.A.(4) requires a "[s]tatement of methodology used to re-establish the pre-fill mean high water line (photo interpretation, historic surveys prepared prior to fill, etc.)." In relation to permanent improvements, this is interpreted to mean the methodology used to re-establish the footprint of the permanent improvement. No statement of methodology appears on the Sketch of Description. Section 5.C. requires a legal description of the filled [improved] parcel. The legal description in the Sketch of Description shows a large area of submerged lands, with no relation to the permanent improvement, which is unsupported by the evidence. Finally, Section 5.E. requires satisfactory evidence of title in the applicant to the riparian uplands to the mean high water line. The Petitioner did not submit any deed to the riparian uplands that would establish his ownership. The Department staff testified that the deed they reviewed showed that the conveyance of the uplands to the Petitioner from his father reserved a life estate in the father. While the Petitioner testified that his father had died in 1999, the rights of his mother to any remainder in the life estate were not established. Thus, the Petitioner failed to show that his application complied with the Rule.
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 the Board of Trustees of the Internal Improvement Trust Fund, of the State of Florida issue a Final Order dismissing the Petition of David Cook dated July 26, 2002. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 1st day of August, 2003. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of the General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 David Cook Post Office Box 30 Fernandina Beach, Florida 32035-0030 Suzanne B. Brantley, Esquire Christine A. Guard, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner owns approximately five and three quarters acres of land adjacent to the St. Johns River in Putnam County, Georgetown, Florida. He has 198 ft. frontage on the river. He purchased the land in 1973 and since that time, periodic storms have caused his shoreline to erode in a half-circle configuration for a distance of about 15 to 20 feet landward to a depth of about 2 feet. To the south of his property is a boat marina. Boats utilizing that facility created debris which washed upon his land creating an unsightly condition. Additionally, wave action from the presence of numerous small craft contributed somewhat to the erosion problem. (Testimony of Petitioner, Petitioner's Exhibit 1) Noting that both landowners to the north and south of his property had in existence previously-constructed bulkheads, petitioner determined that he would construct a similar bulkhead or seawall along his former shoreline and then reclaim the land that had been eroded by sand fill. He therefore contacted a contractor to obtain an estimate of the cost of construction. Petitioner denies requesting a pre-inspection of the proposed work by the Army Corp of Engineers and respondent, but the latter's records reveal that such an inspection was made late in 1974. At that time, Petitioner was informed that a permit would be needed to construct the bulkhead, but that his proposed position for it was excessively far waterward of the mean high water line and therefore would be objectionable. Although petitioner specifically denies ever having been told that he needed a permit, it is found that he was so informed by respondent's representative, (Testimony of Petitioner, Scott, Respondent's Exhibit 3) Petitioner proceeded to construct a wooden bulkhead approximately 180 feet long and extending approximately 15 feet waterward of the mean high water line. The fact of construction was noted by respondent's inspector on April 24, 1975, and thereafter on May 12, respondent informed petitioner that he should either apply for a permit or remove all portions of the bulkhead from below the high water line. On November 25,1975, petitioner obtained the conditional approval of the Board of County Commissioners, Putnam County, Florida, for a fill and bulkhead permit, subject to approval of an issuance of permits by the Army Corp of Engineers and the Board of Trustees, Internal Improvement Trust Fund. He thereafter on March 29, 1976, filed his application with respondent for a permit to construct a seawall and fill below the mean high water line with approximately 550 cubic yards of material. (Testimony of Scott, Petitioner's Exhibit 1, Respondent's Exhibit 2,3) Respondent's inspector evaluated the application and submitted his report on March 31, 1976, recommending denial on the basis of significant adverse impacts associated with the project. However, the report stated that the construction of a rip-rap wall conforming to contour of the mean high water line would stabilize the water line and eliminate objections to the project. Specifically, the adverse impacts mentioned in the report were that backfill of the submerged area landward of the existing bulkhead would eliminate a portion of the littoral zone which is a site for nutrient transformation and stabilization. The elimination of the natural shore zone accelerates entrophication rates in the water body and resulting degradation of fish and wildlife resources. (Respondent's Exhibit 1) Respondent's field inspector supervisor informed petitioner of the adverse report and suggested that the bulkhead be removed and rebuilt following the suggestion in the inspector's report. Petitioner did not agree to this proposition and therefore, on October 27, 1976, he was advised of respondent's intent to deny his application. The grounds for denial were that the seawall and proposed backfill would eliminate a tract of submerged land that stabilized sediments, functions in nutrient cycles and helps maintain water quality. Further, it was stated that destruction of this community would impair the ability of the affected submerged habitat to support fish and wildlife. It was further noted that the seawall would create an abrupt discontinuity in the existing shoreline and cause scouring of the littoral community. (Testimony of Scott, Petitioner's Exhibit 3)
Recommendation That the application of petitioner Joseph J. DeMuch be denied. DONE and ENTERED this 2nd day of June, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM 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 2nd day of June, 1977. COPIES FURNISHED: Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Joseph J. DeMuch Post Office Box 447 Georgetown, Florida 32039
The Issue Whether Respondent John M. Williams deposited fill in waters of the state without a permit from the Department of Environmental Protection. If so, what is the appropriate corrective action and penalty?
Findings Of Fact Mr. Williams and the Cowford Subdivision Petitioner John M. Williams is a retired mechanic. In 1992, he became acquainted with the Cowford subdivision in Walton County, near Bruce, Florida. The subdivision fronts the Choctawhatchee River. Mr. Williams purchased lot 29 of the subdivision. Three or four years later, he bought lot 30. All told, Mr. Williams paid approximately $47,000 for the lots, an electric power line and an "above-ground" septic tank. The purchase price of the lots was $38,000. Running an electric line and installation of an electric light pole cost about $4,000. Mr. Williams paid about $5,000 for the septic tank and its installation. Mr. Williams' ultimate goal in purchasing the lots and adding the improvements was to build a house on the property for use in his retirement. Attempt to Obtain the Necessary Permits The septic tank was not purchased by Mr. Williams until after he had obtained a permit for its construction. At the county offices where he went to obtain the necessary permit, he was "sent over to the power company." (Tr. 216). At hearing, he described what happened there: I paid my money to get my power and they -- well, they informed me . . . once I got my power on I had 6 months to get my septic tank in the ground or they would turn my lights off. So here I had a $3,500 light pole put up and I couldn't very well see this thing going down. So, I went ahead to the Health Department. (Id.) Mr. Williams' testimony is supported by a Walton County Environmental Health Notice dated March 8, 1999, that states, "The Walton County Building Department will not be issuing approval for power for any residence until final approval of the septic system is obtained from the Walton County Environmental Health Office." P7, the first page after Page 3 of 3, marked in the upper right hand corner as PAGE 10. At the Health Department, on April 12, 1999, Mr. Williams applied for an "Onsite Sewage Treatment and Disposal System" permit on a form bearing the following heading: STATE OF FLORIDA DEPARTMENT OF HEALTH ONSITE SEWAGE DISPOSAL SYSTEM APPLICATION FOR CONSTRUCTION PERMIT Authority; Chapter 381, FS & Chapter 10D-6, FAC P7, page 1 of 3. According to the form, he paid the $200 fee for the permit on April 29, 1999. The payment was made within a month or so after the installation of the power line. An attachment to the "Walton County Environmental Health Onsite Sewage Treatment and Disposal System Application," made out by Mr. Williams on April 12, 1999, contains the following warning: OTHER AGENCY PERMITS: As the owner or agent applying for an OSTDS permit it is my responsibility to determine if the proposed development is in compliance with the zoning requirements of Walton County. I further assume responsibility to obtain any applicable permits from other State and Local Government Agencies. P15, page 2. (emphasis supplied) (See also P7, the second page after Page 3 of 3, marked in the upper right hand corner as PAGE 11). On May 5, 1999, about three weeks after Mr. Williams submitted the construction permit application, the site where the septic tank would be installed was evaluated by an EH Specialist, an inspector. On the same day, an Onsite Sewage Treatment and Disposal System Construction Permit was issued for an "above-ground" 900-gallon septic tank. Installation With county personnel present and under county supervision, the septic tank was installed on a ridge on Mr. Williams property about 17 feet above mean sea level. Fill dirt was brought onto the site and placed on top of the tank to create a septic tank mound. No dredging of the property was done in connection with the installation. Chance Discovery After a complaint was registered with DEP about dredge and fill activity on one of the lots near Mr. Williams, Gary Woodiwiss, then an environmental specialist in the Department assigned to conduct inspections in Walton and Holmes Counties, visited the Cowford subdivision in July 2000. During the visit, Mr. Woodiwiss noticed the septic tank mound on Mr. Williams' property and that the mound, in part, consisted of fill dirt. Being of the opinion that the both the fill dirt and the septic tank system constituted "fill" and that the fill may have been deposited in jurisdictional wetlands, that is, "waters of the state," Mr. Woodiwiss consulted with DEP personnel about the status of the site and DEP jurisdiction. Ultimately, DEP determined that the site of the septic tank mound, within the flood plain of the Choctowhatchee River, was jurisdictional wetlands. The Department took action. DEP Action On November 16, 2000, Mr. Woodiwiss issued a memorandum to the DEP file with regard to "John Williams. Unauthorized Fill in Flood Plain." The memo states: Site is located next to Charles Riley who is the subject of Department action for filling jurisdictional wetlands. Williams was erroneously given a permit by Walton County health Dept. to install a septic system in 1999, which he subsequently installed. I visited the site with the administrator for the septic tanks program in Walton and she indicated that they would pay for the installation of a new system on a new lot for Mr. Williams. I recommend that the removal of the system and relocation of the inhabitants of the lot to an area outside of the immediate flood plain. P6. (emphasis supplied) Five days later, on November 21, 2002, a warning letter was generated by Mr. Woodiwiss under the signature of Bobby A. Cooley, Director of District Management for DEP. The letter advised Mr. Williams as follows: Recent Department survey data established at your property has determined that your entire lot is below the mean annual flood line of the Choctawhatchee River and is subject to dredge and fill jurisdiction of the Department. Any construction on the property including placement of a mobile home, septic tank and drainfield or other structures must first receive a dredge and fill permit from the Department. Preliminary assessment of your proposed development of the property indicates that you may not meet the public interest criteria of Chapters 403 and 373 Florida Statutes for qualifying for a permit. R5. By this letter the Department informed Mr. Williams both that he was in violation of the law by not having secured a permit for the filling of the site and warned that, on the basis of a preliminary assessment, it was not likely that he would be eligible for an after-the-fact permit. The assessment of whether the site was eligible for a permit was re-stated in writing again, but with added certainty in a Compliance Assessment Form (the Form) prepared by DEP personnel. In Section V. of the form, there appears, together with the signature of the "Section Permit Processor and a date of "11/09/2000", the following: Project is not permittable due to type of wetland system being impacted and project must not be "Contrary to the Public Interest". The project could affect the public health, safety and welfare and property of others. The project is of a permanent nature. P13. Although the permit processor entered her assessment on November 9, 2000, and other sections of the form were entered on November 1, 2000, by Mr. Woodiwiss, the Compliance Assessment Form bears a final date of February 1, 2001. The Form shows the "Event Chronology" that led to the issuance of the NOV. The chronology, consistent with the testimony at hearing, reveals the following: 25 Jul.00. Complaint inspection for fill in wetlands on adjacent lot. Found isolated fill areas in a slough and adjacent to an apparent upland area. Vegetation is 100% jurisdictional but soil is composed of alluvial deposits in ridge like configurations, one of which the respondent wished to live on. Solicited the jurisdictional team for a district assist in determining jurisdiction. 21 Aug.00. District assist. Hydrologic indicators and vegetation present in sufficient quantities to establish jurisdiction. John Tobe PhD. Requested that the mean annual flood be established on the site in order to augment his determination. October 11, 2000. District assist by Bureau of Survey and mapping and the establishment of a survey line of the 2.33 year (16.42 feet above MSL) mean annual flood elevation on the adjacent violation site. The whole site is clearly under the MAF, which extends approximately 200 meters up grade towards SR 20. The elevation of the MAF is consistent with hydrological indicators (porella pinnatta) that indicate such a flood elevation, as reported in previous studies. November 7, 2000. Met with Crystal Steele and Mike Curry of Walton County DOH to establish why Mr. Williams has a septic tank permit. They indicated that the permit was issued in error and that they would require the system to be moved. Ms. Steele stated that the County would pay for Mr. Williams to have a new system installed on another site because of the oversight. There are currently two moveable vehicles on the site, one of which is connected to the system, the other has a contained service for sewage. November 21, 2000. WLI [presumably Warning Letter Issued] November 27, 2000. Call to Mr. Williams. He wants to get money back or swap property for higher. I advised him to approach the owner Mr. Martin and make his situation known. January 22, 2000. Mr. Williams has refused to remove the fill and requests an NOV. P13, (emphasis supplied) MAF and Wetland Delineation There was considerable testimony introduced at hearing about establishment of the mean annual flood ("MAF") line for the purpose, among others, of its relationship to the elevation of the septic tank mound. The issue stemmed, no doubt, from Dr. Tobe's request that MAF be established in order to "augment his determination" with regard to DEP jurisdiction based on employment of the methodology in DEP's wetland delineation rule, see paragraph 13, above. Resolution of the issue is not necessary to augment the determination that all of lots 29 and 30 of the Cowford subdivision are located in wetlands that constitute "waters of the state." That the septic tank and the fill dirt were deposited on wetlands under the jurisdiction of DEP was clearly established by Dr. Tobe in his testimony at trial and the evidence in support of it. Petitioner concedes as much in his Proposed Final Order. Environmental Harm and Human Health Exposure Wetlands whose surface area is covered by the septic tank mound have been filled. The filling has caused environmental damage. An assessment of the damage was not offered at hearing but it appears from this record that the damage is minimal. During the time the septic tank has been on Mr. Williams' property, it has never been below the flood waters of the Choctawhatchee River and therefore has not yet caused direct hazard to human health. Corrective Action and Penalty It will be expensive to remove the septic tank; the expense will be more than the cost of installation. Petitioner fears, moreover, that it will render his property worthless. There is no evidence that Petitioner's violation of Department permitting requirements was willful. He has no history of violations previous to this one. Options to continued retention of a septic system through use of a portable wheeled waste remover or use of an upland drain field on another property are either not viable or so problematic as to be impractical. DEP Modification of its Position At the outset of the hearing, DEP announced that it no longer intended to seek civil penalties of $1,500 as it had intended when the NOV was issued. All that is sought by DEP by way of corrective action or penalty is removal of the septic tank and monetary reimbursement for the cost of the investigation of $250 (see Tr. 9, lls. 17-25, and Tr. 10, lls. 1-5.)
Findings Of Fact On August 12, 1982, the partnership made application for a fill permit to fill approximately .67 acres and to create approximately .45 acres of wetlands in St. Johns County, Florida. A copy of this permit application may be found as DER Exhibit No. 1 admitted into evidence. At the same time, the partnership requested permission from Department of Environmental Regulation to construct a roadway associated with the residential project mentioned in permit application Number 1. This road construction contemplated filling approximately .06 acres associated with a 20 foot roadway with swale drainage in an area the applicant identified as a transitional wetland. A copy of the second permit application may be found as DER Exhibit No. 2 admitted into evidence. Those permit applications were received by DER on August 18, 1982. The applications for permit were reviewed by the Northeast District Office, State of Florida, Department of Environmental Regulation. Tim Deuerling, a member of that district staff, was the individual primarily responsible for the permit review. His position with the staff is that of Environmental Specialist and his duties include dredge and fill permit review. In the course of the hearing, Deuerling was qualified as an expert in the evaluation of dredge and fill projects on the subject of water quality impacts associated with the activity. The permit applications have been considered separately based upon several on-site inspections made by Deuerling. Having concluded the inspections, Deuerling made a written permit application appraisal for each permit request. These activities took into account the biophysical features of the project area, with emphasis on the possible impact of the project related to ecology of the water body. DER Exhibit No. 17 admitted into evidence, is a copy of the appraisal report related to the dredge and fill activities in the wetlands of approximately .67 acres fill and the creation of .45 acres marsh. DER Exhibit No. 18 admitted into evidence, is a copy of the permit application appraisal by Deuerling related to the fill activities associated with the construction of the road. In summary, these appraisals recommended the denial of the permit applications, based upon the concern that the projects would damage the existing biological resources and have the effect of degradation of the local water quality. In the face of the Department's initial statement of intent to deny the permit, revisions were made to the permit applications. In particular, the revisions contemplated the filling of approximately 10,000 square feet of transitional zone vegetation, as defined in Rule 17-4.02(17), Florida Administrative Code, while creating approximately 56,000 square feet of marshland vegetated with low marsh submerged species. The newly created marsh area would be protected by a coquina rock revetment. The destruction of the transitional vegetation in the project is not a violation of Department of Environmental Regulation regulatory standards, per se. Moreover, the substituted submerged vegetation which is sought is of a higher quality in performing the function of enhancing water quality, when contrasted with the transitional-type vegetation. DER Exhibit No. 5 admitted into evidence is a diagram which points out the associated fill in the revised permit application, with the fill areas over which the Department of Environmental Regulation has jurisdiction being delineated in red. The green line depicts the demarcation of the landward extent of the Department's permitting jurisdiction. DER Exhibits 6, 7, and 8, copies of which have been admitted into evidence, are information and synopsis of meetings related to the revisions. In commenting on the topic of an on-site meeting, which was conducted on November 19, 1982, an official with the United States Corps of Engineers expressed concern that the mitigation plan for protecting the environment should require a minimum of one-to-one marsh creation for marsh destroyed. The project, as contemplated, allows for roughly five times the area to be created in contrast to area destroyed. A copy of the letter from the employee of the United States Army Corps of Engineers may be found as DER Exhibit No. 9 admitted into evidence. Comments from other regulatory agencies were received by the Department of Environmental Regulation. These comments were from the United States Environmental Protection Agency; State of Florida, Department of Natural Resources; United States Fish and Wildlife Service; and the Building and Zoning Department, St. Johns County, Florida. Copies of these comment letters were received as DER Exhibit Nos. 10, 11, 12, and 13 respectively. The concerns expressed by the United States Environmental Protection Agency and United States Fish and Wildlife Service have been addressed in the subsequent conditions set forth in the Notice of Intent to Issue Permits by Department of Environmental Regulation. That comment in DER Exhibit No. 13 made by officials with the Building and Zoning Department of St. Johns County on the subject of their reluctance to accept the fact that there is a trade off of wetlands for wetlands as opposed to the substitution of uplands for wetlands to-be filled, is satisfactorily addressed in the revised proposal. The uplands that are being graded will become a marsh area and will not remain uplands. Comments in opposition to the project were received from members of the public. Copies of these letters in opposition may be found as DER Exhibits Nos. 14, 15, and 16. Those items respectively are from John W. Morris, Esquire, DER Exhibit No. 14; Elouise Kora and Yolande Truett, DER Exhibit No. 15; and Rod and Jacqueline Landt, DER Exhibt No. 16. Having reviewed the original project, the revisions to the permit applications, and the comments by various private individuals and public agencies, the Department of Environmental Regulation noticed all interested parties of the Department's intent to issue permits for the benefit of the Partnership. Copies of those notices may be found as DER Exhibit Nos. 19 and 20 pertaining to the substituted marshland permit and road permit respectively. Those letters of intent establish the particular conditions that the Department would impose on the grant of the permit. In the instance of the substituted wetlands area, it would include turbidity controls during the placement of the fill, the stabilization of fill to prevent erosion into state waters, the placement of coquina rip-rap along open waters of the Tolomato River prior to the excavation of upland areas to the intertidal elevation that is referred to as one of the other conditions, the excavation of the project area to allow the growth of Spartina alterniflora to be planted on three foot centers, and the assurance that the new wetlands vegetation shall have a 70 percent survival rate following planting as measured at the conclusion of the first year or that replanting of that species shall occur until a 70 percent survival rate is achieved. DER Exhibit No. 20 related to the construction of the roadway sets forth conditions related to the fact that the road should be constructed at a time when the area is not inundated with water, turbidity control at the time of construction, and the stabilization of the road and swales to prevent erosion leading to the introduction of materials into the waters of the state. Each Notice of Intent to Grant also sets out opportunity for parties in opposition to request a hearing to consider the propriety of the grant of permit. At the time that the Notices of Intent were sent, permits were also drafted pertaining to the marsh area and roadway. Copies of those permits may be found as DER Exhibit Nos. 21 and 22 respectively. Those permits are considered to be proposed agency action, pending the outcome of the hearing conducted March 30, 1982, to address the question of the grant of permits. The permits contain the conditions above. A protest was received leading to the current hearing, following the Department's request for the assignment of a Hearing Officer and such assignment. In addition to the review of the project made by Deuerling, Jeremy Tyler, an employee in the Northeast Florida District, Department of Environmental Regulation, considered the original project and its revisions. Tyler was accepted as an expert in the assessment of impact of dredge and fill projects on water quality. In view of the revisions to the project, and keeping in mind that the work to be done pursuant to the revisions would be landward of the line of mean high water, Tyler correctly asserts that standards or criteria related to water quality in the State of Florida will not be violated by project activities, i.e., reasonable assurances have been given by the applicant. This pertains to standards established pursuant to Chapter 403, Florida Statutes, as carried forward in Chapter 17, Florida Administrative Code. Based upon the revisions, Deuerling correctly concurred in Tyler's impression that water quality standards or criteria would not be violated, i.e., that reasonable assurances had been given by the applicant. Deuerling was particularly impressed with the design of the revised project, the stormwater control methods to be implemented at the project site, and the decrease in the amount of filling to be done within areas of. the Department' s jurisdiction. The jurisdictional boundaries are determined by reference to transitional vegetation which is dominant, specifically, the first fifty feet of that area. Steve Beamon, marine biologist and consultant hired by the Partnership to plant the marine vegetation in the new marsh area, is convincing when he, by expertise, vouches for the reliability of the 70 percent survival rate for that vegetation. In fact, his experience has been that 97 percent of the vegetation planted survives. Here, the survival rate is premised upon the placement of the rip-rap coquina rock to protect that vegetation. The Department of Environmental Regulation, through Jeremy Tyler, concurs in the necessity for the placement of the revetment. The Partnership had applied for a permit for stormwater discharge. See DER Exhibit No. 3 admitted into evidence, a copy of that application. The Department, in responding to that application, a copy of which response may be found as DER Exhibit No. 4 admitted, declined jurisdiction in the face of a purported exemption available to the Partnership. This action, on the part of the agency, is premised upon its reading of Rule 17-25.03(2)(c), Florida Administrative Code. Petitioner did not present expert testimony to refute the evidence related to reasonable assurances of compliance with applicable standards of the Florida Statutes and associated rules within the Florida Administrative Code. Their concerns pertain to the removal of beach area that would occur in association with the project build-out, especially as it relates to the placement of the coquina rock, which would make the beach area available only at low tide. The witness, Elouise Kora, also established that sand which has been placed in anticipation of the possible permitting of the project has washed into the current marsh areas Other witnesses for Petitioner identified the effects of placement of fill in certain areas as covering food sources for fish and denying opportunity to fish from the shoreline. At present, flounder, drum, whiting, bluefish, and catfish are caught in the area of the project site. Swimming and wading are done in the area of the project site and would be inhibited if the project were granted. Harry Waldron, a member of the St. Johns County Commission, expressed concern that access to the beach area would be denied by the contemplated project. He also indicated that the placement of revetment material was not before the County Commission when it-considered the propriety of this project from the point of view of local government. In Waldron's opinion, although the public can get to beach areas in that basic location, other than the project site, the build-out would cause the loss of a "prime fishing hole", which is not in the public interest, according to Waldron.
Findings Of Fact In June 1984, Clark Vargas applied for a permit with the Department of Environmental Regulation for activities in the waters of the state. The application stated that the proposed activity was to construct a soil road 700 feet long and constructed of 2,000 cubic yards of fill to be deposited landward of the mean high water line. The roadway proposed was to have Geotextile Fabric placed over it, and would have fifteen inch culverts for cross flow. The purpose of the road was to allow 8 property owners to have automobile access to their lots. Attached to the application was a copy of a larger engineering drawing of the project, reduced to letter size paper. The larger drawing C in evidence as Responder's Exhibit 1, and the original application is in evidence as Respondent's Exhibit 2. The drawing depicts the construction that is proposed, and in the notes states that the mean high water line is 1.1 feet above mean sea level. The drawing (Respondent's Exhibit 2) shows a number of elevation readings along the road. The elevation readings on the land upon which approximately one half of the road is to be located, the southerly portion closest to Julington Creek, and adjacent to lots 19 through 26, are all below the elevation of mean high water. The data as to the mean high water elevation for the note on the drawing was obtained by Mr. Vargas from the Corps of Engineers. The elevations on the road were the elevations measured by a survey caused to be conducted by Mr. Vargas starting from a U.S.G.S. benchmark three quarters of a mile away. The survey was conducted by a registered land surveyor. Mr. Vargas stated that the survey was not meant to be a survey to establish mean high water, and that it was intended to determine a price and plan for construction. In Mr. Vargas's professional opinion, the survey was not adequate to establish the mean high water line. Timothy J. Deuerling, an Environmental Supervisor I for the Northeast District, visited the site of the project in the summer of 1984. He saw water throughout the area. He developed the initial opinion that the project was landward of the mean high water line. When he returned to the office, he looked at the small attached drawing and decided that the project appeared to be mostly landward of the mean high water line. The elevations are very unclear on the reduced size version attached to the application. Mr. Deuerling's statement as to the mean high water line is contained in Respondent's Exhibit 4. It is the finding of the Hearing Officer that the drawing was so small and the elevations so unclear that Mr. Deuerling's opinion as to the mean high water line in Exhibit 4 is not reliable, and is rejected. Jeremy G. Tyler, Environmental Supervisor of the Dredge and Fill Section, North East District, said that the conclusions contained in the Intent to Deny and Final Order of Denial, Respondent's Exhibits 7 and 6, that one-third of the fill was to be placed waterward of the mean high water line, was based upon the data provided to DER by Mr. Vargas, Respondent's Exhibit 2. Mr. Tyler said that it is very hard to determine mean high water line by site inspection, and that he credited the survey as better evidence. It is she finding of the Hearing Officer that the location of the mean high water line has not been established by the evidence. This finding is not based upon the testimony of Mr. Vargas, however. Mr. Vargas did not present any evidence that the standard for mean high water, which was obtained from the Corps of Engineers, was inaccurate, and he did not present any evidence that the survey elevations on the drawing were inaccurate. There is good reason to believe that the proposed road in this case may be, at least with respect to the one half from lots 19 through 26, waterward of the mean high water line. The evidence shows there is an elevated ridge along the edge of the canal, that this ridge was caused by deposit of dredged material when the canal was dredged in the 1950's or 1960's, and that the ridge has eroded in places, and the water from the canal and Julington Creek floods much of the area from time to time through low places in the ridge. The engineering drawing, however, runs a series of elevation readings across only two places on the ridge, and in both cases there is at least one reading above mean high water level. Further, the only reading at a spot directly on the open water is at the southerly end of the proposed road, and it also is above mean high water. It is possible, therefore, that although portions of the road are below mean high water elevation, these portions may be completely surrounded by higher ground. It is also possible that the several low spots on the canal ridge bring the mean high water line to the road itself. On this record, it is not possible to conclude where the mean high water line is. The site of the proposed road and surrounding lots are located in a hardwood swamp associated with Julington Creek in Duval County. The land upon which the road would be built is heavily wooded. Julington Creek is Class III waters of the state. The land upon which the road is to be built is the landward extent of the waters of the state. All of the Petitioners stipulated at the hearing that the Department of Environmental Regulation has jurisdiction to require a permit for fill pursuant to Chapter 403, Florida Statutes. The proposed project would result in the placement of silica fill upon a strip of wetlands described above measuring 25' by 702.5', which is 17,562.5 square feet, plus four driveway pads to lots measuring 25' by 30', for an additional 3900 square feet, for a total of 20,562.5 square feet, which is 0.47 of an acre. (An acre is 43,560 square feet.) The sand of the roadway and driveway pads will not pollute the waters of the state. The sand of the road will not increase biological oxygen demand or nutrients. During construction, turbidity could be increased if high waters are experienced and the area is not properly stabilized, but turbidity could be monitored and controlled. The materials of the roadway further will not depress the oxygen levels in Julington Creek. The project originally proposed that seed and fertilizer be used to stabilize the banks of the road, and fertilizer would contribute to nutrients in the waters of the state, but Petitioners at the hearing gave reasonable assurances that seeding could be accomplished without fertilizer by using burlap and seed. The roadway itself will also not generate unlawful bacteria that could make its way to the waters of the state. The road will disturb the biological integrity of the organisms living in the soil beneath the roadway and driveway pads. The proposed project will permanently destroy 0.47 of an acre of the wetlands associated with Julington Creek. These and adjacent wetlands function as a natural kidney, cleansing the water of pollutants, in a continuous cycle. Wetlands contain soil and living organisms that, in balance, filter out pollutants, assimilate nutrients, and provide habitat for organisms. The silica road proposed by Petitioners will not perform these functions. Petitioners presented no evidence to rebut these findings, except to argue that the loss of wetland was insignificant and to argue that wetlands, at times, will also cause pollution. Petitioners gave no other reasonable assurances that the long-term effects of the road would not degrade water quality. The exchange of water, which results in the natural filtration and cleansing described above, occurs from waters coming from the uplands, from the wetlands, and from open waters such as Julington Creek. Julington Creek is tidal, and the testimony indicated that with significant regularity the wetlands associated with this proposed road were inundated with water. In a natural state, wetlands will experience dry conditions. During such periods, which are natural and cyclical, water will drain from the swamp and there can be a natural depression of oxygen levels in the open waters, increasing suspended solids. While these facts are true, Petitioners did not present evidence to show with particularity whether this had occurred or to what extent this had occurred with respect to the wetland area where the road is to be located, and did not show with particularity how removal of these wetlands by constructing this road would prevent natural degradation of the water in the future. Moreover, whether or not the natural filtration system of a wetland becomes less efficient due to natural cycles is not relevant in this case. Petitioners here do not propose to replace nature's cyclical inefficiencies with a better, manmade system, but propose, rather, to remove a significant portion of the only filter now operating, without replacement. The entire Julington Creek drainage basis is 30 or 40 square miles. The relevance of this figure was not established, since from the map which is Respondent's Exhibit 9 it is clear that the drainage basis of Julington Creek, with its associated wetlands, serves to filter pollutants from an equally large, if not larger, upland area. Petitioners argue that removal of 0.47 acre is insignificant if the entire area is 30 to 40 square miles, but from Respondent's Exhibit 9 it is evident that much of that other part of the wetland is not available to function as a filter for the waters currently filtered by the wetlands in the vicinity of the pro- posed roadway. The proposed road is near the conjunction of Julington and Durbin Creeks, and near the place where the open waters enlarge. The wetlands of the proposed road would be expected to serve the filtration function for those open waters and the uplands immediately above the wetlands, and not some other part of the 30 or 40 square miles. The land at the headwaters of Julington Creek is now being developed for multifamily housing and industrial uses, and the whole watershed of the Creek is being developed. The waters of Julington Creek have already been stressed in a general way by this development. Petitioners Vargas, Mrs. M. E McCullough, Dr. Robert L. Barksdale, and Mr. Steve Scecere, all testified at the hearing, and own, respectively, lots 22, 21, 19, and 24. All testified that they intend to build houses on their lots, but have not yet applied for permits. Since 1977, the Department of Environmental Regulation has consistently taken the position that deposit of fill on the wetlands which are the landward extent of Julington Creek will degrade the quality of the waters of the state, and have consistently acted to prohibit such fill. See Respondent's Exhibits 8, 10, and 11. The Department further has consistently told prospective buyers of this position with regard to these wetlands. Of particular relevance to this application, in 1977 the Respondent denied a fill permit to place 2,500 cubic yards of fill on lot 20 as depicted on Respondent's Exhibit 1. This lot is now owned by Debra H. Prevatt, and is contiguous to lot 19 owned by Petitioner, Dr. Robert L. Barksdale. The fill proposed in 1977 would have eliminated 20,000 square feet of wetlands, approximately the same as the proposed project in this case. Petitioner proposes the finding that the Corps of Engineers stands ready to issue their permit pending resolution of their application by the Department of Environmental Regulation. This finding is based solely upon the testimony of Mr. Vargas as to the intentions of unnamed officials in the Corps of Engineers, and as such, is hearsay. Therefore, absent direct evidence on the point, the proposed finding is rejected. Petitioners propose a finding that the permitting process progressed "without negative feedback" until objections were raised by adjacent property owners. This finding was not supported by any evidence other than the opinion of Mr. Vargas, and will be rejected as unsupported and possibly hearsay. It is also rejected as irrelevant since there was no evidence that the Respondent denied the permit for reasons other than those provided by statute and regulation. The Petitioners have paid taxes on their property, are of the opinion that they cannot build on their land if the permit is denied, and would be willing to sell their land to the state for a reasonable amount if the permit is denied. Respondent has not placed a monetary value on the wetlands which Petitioners propose to fill. If Petitioners proposed to build the road on pilings, elevated above the wetlands so that most of the wetlands would continue to function, the application would be approved.
Recommendation It is therefore recommended that the application for a dredge and fill permit to construct the road and driveway pads as proposed by Petitioners be DENIED. DONE and ORDERED this 1st day of March, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1985. COPIES FURNISHED: Clark Vargas, P.E. President C. Vargas & Associates 8596 Arlington Expressway Jacksonville, Florida 32211 M. E McCullough 9139 Warwickshire Jacksonville, Florida 32217 Steve Scecere 9058 Kentism Court Jacksonville, Florida 32217 Dr. Robert L. Barksdale 2423 Acadie Jacksonville, Florida 32205 Ross Burnaman, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinke, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Background Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion. The exemption Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities: (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems . . . . At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. WILLIAM J. KENDRICK 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 4th day of June 1992.
Findings Of Fact On or about March 7, 1986, Petitioner submitted an application for a variance from the open space and rear set-back line requirements applicable to property located at 2612 U.S. 19 North, Clearwater, Florida. The subject property is zoned CC (commercial center). Petitioner's application requests a variance to provide 12.33% open space instead of 25%, and to construct a building 30 feet from the rear property line rather than 50 feet as required by the Land Development Code for property zoned CC. On or about April 24, 1986, the Development Code Adjustment Board denied Petitioner's application for a variance, and Petitioner timely appealed on May 6, 1986. The only evidence in support of its application offered by Petitioner was the testimony of Robby Tompkins. He testified that Petitioner's application is "unique" because Petitioner was 90% complete with its architectural plans for the renovation and modernization of the subject property when the current ordinance took effect, and Petitioner therefore urges that the current ordinance should not apply. Additionally, Petitioner argues that there will be no injury to the public as a result of the variance, and in fact the project will add 6800 square feet to its shopping center. Tompkins admitted that an increase in financial return was the primary reason Petitioner has sought the variance. Finally, he stated that if Petitioner complies with the 25% open space requirement, there will not be enough parking to meet Code provisions, and if sufficient parking is provided, there will not 25% open space.
The Issue The issue is whether the City's applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In these two cases, Respondent, City of Gainesville (City), seeks the issuance of a stormwater system management permit (stormwater permit) to construct a 2,000-foot long asphaltic trail/boardwalk, a parking facility and associated improvements for Phase 1A of the Hogtown Creek Greenway project in the north central portion of the City. That matter is docketed as Case No. 97-2845. The City also seeks the issuance of a noticed general environmental resource permit (NGP) to construct 481 square feet of piling supported structures over wetlands or surface waters for the same project. That matter has been assigned Case No. 97-2846. Respondent, St. Johns River Water Management District (District), is the regulatory agency charged with the responsibility of reviewing and approving the requested permits. Petitioner, Greenspace Preservation Association, Inc., is a not-for-profit Florida corporation primarily composed of persons who own real property adjacent to the route proposed by the City, as well as local environmental interests. Petitioners, Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M. Stahmer, are individuals who own real property adjacent to the route proposed by the City for the Greenway. The parties have stipulated that Petitioners are substantially affected by the District's proposed action and thus have standing to initiate these cases. On March 28, 1997, the City filed applications for a stormwater permit and a NPG for Phase IA of the Hogtown Creek Greenway project. After conducting a review of the applications, including an on-site visit to the area, in May 1997, the District proposed to issue the requested permits. On June 9, 1997, Petitioners timely filed a Petition for Initiation of Formal Proceedings as to both intended actions. As amended and then refined by stipulation, Petitioners generally allege that, as to the stormwater permit, the City has failed to provide reasonable assurance that the project meets the permitting requirements of the District; the City has failed to provide reasonable assurance that the stormwater system will not cause violations of state water quality standards; the City has failed to provide reasonable asurance that the project satisfies the District's minimum required design features; and the City has failed to provide reasonable assurance that the stormwater system is capable of being effectively operated and maintained by the City. As to the NPG, Petitioners generally allege that the piling supported structure is not less than 1,000 square feet; the jurisdictional wetlands are greater than the area shown on the plans submitted by the City; the City has failed to provide reasonable assurance that the system will not significantly impede navigation; the City has failed to provide reasonable assurance that the system does not violate state water quality standards; the City has failed to provide reasonable assurance that the system does not impede the conveyance of a watercourse in a manner that would affect off-site flooding; the City has failed to provide reasonable assurance that the system will not cause drainage of wetlands; and the City failed to provide reasonable assurance that the system does not adversely impact aquatic or wetland dependent listed species. Respondents deny each of the allegations and aver that all requirements for issuance of the permits have been met. In addition, the City has requested attorney's fees and costs under Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the theory that these actions were filed for an improper purpose. A General Description of the Project The Hogtown Creek Greenway is a long-term project that will eventually run from Northwest 39th Street southward some seven miles to the Kanapaha Lake/Haile Sink in southwest Gainesville. These cases involve only Phase 1A of that project, which extends approximately one-half mile. This phase consists of the construction of a 2,000-foot long asphaltic concrete trail/boardwalk, a timber bridge and boardwalk, a parking facility, and associated improvements. The trail will extend from the Loblolly Environmental Facility located at Northwest 34th Street and Northwest 5th Avenue, to the intersection of Northwest 8th Avenue and Northwest 31st Drive. The trail will have a typical width of ten feet. For the majority of its length, the trail will be constructed of asphaltic concrete overlying a limerock base, and it will generally lie at the existing grade and slope away from the creek. Besides the trail, additional work involves the repaving of Northwest 5th Avenue with the addition of a curb and gutter, the construction of an entrance driveway, paved and grassed parking areas, and sidewalks at the Loblolly Environmental Facility, and the widening and addition of a new turn lane and pedestrian crosswalk at the intersection of Northwest 8th Avenue and Northwest 31st Drive. The Stormwater Permit Generally The entire Phase IA project area lies within the Hogtown Creek 10-year floodplain. It also lies within the Hogtown Creek Hydrologic Basin, which basin includes approximately 21 square miles. The project area for the proposed stormwater permit is 4.42 acres. Water quality criteria Phase IA of the Greenway will not result in discharges into surface groundwater that cause or contribute to violations of state water quality standards. When a project meets the applicable design criteria under the District's stormwater rule, there is a presumption that the project will not cause a violation of state water quality standards. There are two dry retention basins associated with the project. Basin 1 is located at the cul-de-sac of Northwest 5th Avenue and will capture and retain the stormwater runoff from the new and reconstructed impervious areas at the Loblolly Facility. Basin 2 is located at the parking area and will capture and retain stormwater runoff at the existing building and proposed grass parking area. Under the stormwater rule, the presumptive criteria for retention basins require that the run-off percolate out of the basin bottom within 72 hours. The calculations performed by the City's engineer show that the two retention basins will recover within that timeframe. In making these calculations, the engineer used the appropriate percolation rate of ten inches per hour. Even using the worst case scenario with a safety factor of twenty and a percolation rate of one-half inch per hour, the two retention basins will still recover within 72 hours. The presumptive criteria for retention basins require that the basin store a volume equal to one inch of run-off over the drainage area or 1.25 inches of run-off over the impervious area plus one-half inch of run-off over the drainage area. The calculations performed by the City's engineer show that the two retention basins meet the District's volume requirements for retention systems. An applicant is not required to utilize the presumptive design criteria, but instead may use an alternative design if the applicant can show, based on calculations, tests, or other information, that the alternative design will not cause a violation of state water quality standards. As a general rule, the District applies its stormwater rule so that water quality treatment is not required for projects or portions of projects that do not increase pollutant loadings. This includes linear bicycle/pedestrian trails. The City's proposed trail will not be a source of pollutants. The City will install signs at both entrances to the trail to keep out motorized vehicles. Except for emergency and maintenance vehicles, motorized vehicles will not be permitted on the trail. The infrequent use by emergency or maintenance vehicles will not be sufficient to create water quality concerns. The construction of a treatment system to treat the stormwater from the trail would provide little benefit and would only serve to unnecessarily impact natural areas. Although treatment of the stormwater run-off from the trail portion of the project is not required under District rules, the run-off will receive treatment in the vegetated upland buffer adjacent to the trail. The District's proposed other condition number 3 will require the City to plant vegetation in unvegetated and disturbed areas in the buffer. This will reduce the likelihood of erosion or sedimentation problems in the area of the trail. Although disputed at hearing, it is found that the City's engineer used the appropriate Manning coefficient in the calculations regarding the buffer. Even without a vegetated buffer, run-off coming from the bicycle trail will not violate state water quality standards. The City will install appropriate erosion and sediment controls. These include siltation barriers along the entire length of both sides of the proposed trail prior to commencing construction. Such barriers will not allow silt or other material to flow through, over, or under them. The City will also place hay bales and any other silt fencing necessary to solve any erosion problem that may occur during construction. In addition, the permit will require an inspection and any necessary repairs to the siltation barriers at the end of each day of construction. Saturation of the limerock bed under the paved portion of the trail is not expected to cause a problem because heavy vehicles will not regularly use the trail. The trail portion of the project can be adequately maintained to avoid deterioration. Sensitive Karst Areas Basin criteria The two proposed dry retention basins for Phase 1A are located within the District's Sensitive Karst Areas Basin. They include all of the minimum design features required by the District to assure adequate treatment of the stormwater before it enters the Floridan aquifer and to preclude the formation of solution pipe sinkholes in the stormwater system. There will be a minimum of three feet of unconsolidated soil material between the surface of the limestone bedrock and the bottom and sides of the two retention basins. The appropriate mechanism for determining the depth of limestone is to do soil borings. The soil borings performed by the City show that there is at least three feet of unconsolidated material between the bottom of the basins and any limerock where the borings were taken. In other words, limestone would not be expected to be within three feet of the bottom of either basin. Based on the soil boring results, the seasonal high water table is at least six feet below ground level. The depth of the two retention basins will be less than ten feet. Indeed, the depth of the basins will be as shallow as possible and will have a horizontal bottom with no deep spots. To make the retention basins any larger would require clearing more land. A large shallow basin with a horizontal bottom results in a lower hydraulic head and therefore is less potential for a sinkhole to form. Before entering the basins, stormwater will sheet flow across pavement and into a grass swale, thereby providing some dispersion of the volume. Finally, the two retention basin side slopes will be vegetated. Special condition number 7 provides that if limestone is encountered during excavation of a basin, the City must over- excavate the basin and backfill with three feet of unconsolidated material below the bottom of the basin. Drainage and flood protection Contrary to Petitioners' assertions, the project will not adversely affect drainage or flood protection on surrounding properties. The trail will be constructed generally at existing grade. Because the trail will be constructed at existing grade, the net volume of fill necessary for Phase 1A is approximately zero. Therefore, there will not be a measurable increase in the amount of runoff leaving the site after construction, and the trail will not result in an increase in off-site discharges. District rules require that the proposed post- development peak rate of discharge from a site not exceed the pre-development peak rate of discharge for the mean annual storm only for projects that exceed fifty percent impervious surface. The proposed project has less than fifty percent impervious surface. Even though it is not required, the City has demonstrated that the post-development rate of discharge will not exceed the pre-development peak rate of discharge. Both basins will retain the entire mean annual storm so that the post-development rate of discharge is zero. Even during a 100-year storm event, the retention basins willl not discharge. Therefore, there will not be any increase in floodplain elevations during the 10, 25, or 100-year storm events from the proposed project. Operation and maintenance entity requirements The applicable requirements of Chapter 40C-42, Florida Administrative Code, regarding operation and maintenance, have been met by the applicant. The City proposes itself as the permanent operation and maintenance entity for the project. This is permissible under District regulations. The duration for the operation and maintenance phase of the permit is perpetual. The City has adequate resources and staff to maintain the phase 1A portion of the project. The public works department will maintain the stormwater management system out of the City's utility fund. The City provides periodic inspections of all of its stormwater systems. These inspections are paid for out of the collected stormwater fees. The City will also conduct periodic inspections of the project area, and the two retention basins will be easily accessed by maintenance vehicles. The City will be required to submit an as-built certification, signed and sealed by a professional engineer, once the project is constructed. Monthly inspections of the system must be conducted looking for any sinkholes or solution cavities that may be forming in the basins. If any are observed, the City is required to notify the District and repair the cavity or sinkhole. Once the system is constructed, the City will be required to submit an inspection report biannually notifying the District that the system is operating and functioning in accordance with the permitted design. If the system is not functioning properly, the applicant must remediate the system. The City will be required to maintain the two retention basins by mowing the side slopes, repairing any erosion on the side slopes, and removing sediment that accumulates in the basins. Mowing will be done at least six times per year. The City will stabilize the slopes and bottom areas of the basins to prevent erosion. The City has a regular maintenance schedule for stormwater facilities. The project will be included within the City's regular maintenance program. The City has budgeted approximately $80,000.00 for maintenance of the trail and vegetated buffer. Also, it has added new positions in its budget that will be used to maintain and manage the Greenway system. Finally, City staff will conduct daily inspections of the Phase 1A trail looking for problems with the vegetated buffer, erosion problems along the trail, and sediment and debris in the retention basin. If the inspections reveal any problems, the staff will take immediate action to correct them. The Noticed General Environmental Resource Permit Generally By this application, the City seeks to construct 481 square feet of piling supported structures over wetlands or surface waters. The proposed structures include a 265 square foot timber bridge over an un-vegetated flow channel, which connects a borrow area to Possum Creek, and a 216 square foot boardwalk over two small wetland areas located south of the flow channel. None of the pilings for the bridge or boardwalk will be in wetlands, and no construction will take place in Hogtown or Possum Creeks. The paved portion of the trail will not go through wetlands, and there will be no dredging or filling in wetlands. The receiving waters for the project are Hogtown and Possum Creeks. Both are Class III waters. Hogtown Creek originates in north central Gainesville and flows southwest to Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek originates in northwest Gainesville and flows southeast to its confluence with Hogtown Creek south of the proposed bridge structure. Wetlands The total area of the proposed bridge and boardwalk over surface water or wetlands is approximately 481 square feet. The wetland delineation shown on the City's Exhibit 5A includes all of the areas in the project area considered to be wetlands under the state wetland delineation methodology. The United State Army Corps of Engineers' wetland line includes more wetlands than the District wetland line. The former wetland line was used to determine the area of boardwalk and bridge over wetlands. Even using this line, however, the total area of boardwalk over surface waters or wetlands is approximately 481 square feet and is therefore less than 1,000 square feet. Navigation The proposed system does not significantly impede navigation. Further, the structures will span a wetland area and an un-vegetated flow channel, both of which are non-navigable. In fact, the flow channel generally exhibits little or no flow except after periods of rainfall. Water quality The construction material that will be used for the bridge and boardwalk will not generate any pollutants. Morever, chemical cleaners will not be used on those structures. Silt fences will be used and vegetation will be planted in the vicinity of the bridge and boardwalk to prevent erosion and sedimentation problems. The amount of erosion from drip that comes off the boardwalk will be minimal. Therefore, the bridge and boardwalk will not cause a violation of state water quality standards. Off-site flooding The project will not impede conveyance of any stream, river, or other water course which would increase off-site flooding. The structures will completely span the wetland areas and flow channel, and no part of the structures, including the pilings, will lie within any water or wetland areas including the flow channel. There will be a span of 2.5 to 3 feet from the horizontal members of the bridge and boardwalk down to the ground surface which will allow water to pass through unobstructed. Further, there will not be any cross ties or horizontal obstructions on the lower portions of the boardwalk or bridge pilings. Further, due to the spacing of the pilings, the boardwalk and bridge will not trap sufficient sediment such as leaves to impede the conveyance of the flow channel. Therefore, conveyance through the flow channel will not be affected by the structures. Because the boardwalk and bridge are not over Hogtown or Possum Creeks, they will not cause any obstruction to the conveyance of the creeks. Aquatic and wetland dependent listed species The project will not adversely affect any aquatic or wetland dependent listed species. These species are defined by District rule as aquatic or wetland dependent species listed in Chapter 39-27, Florida Administrative Code, or 50 Code of Federal Regulations, Part 17. No such species are known to exist in the project area, and none are expected to exist in the location and habitat type of the project area. Therefore, contrary to Petitioners' assertions, there are no listed salamander, frog, turtle, or lizard species known to occur within the Hogtown Creek basin. Although it is possible that the box turtle may be found in the project area, it is not an aquatic or wetland dependent listed species. One baby American alligator (between two and three feet in length) was observed in the borrow pit area of the project on September 11, 1997. Except for this sighting, no other listed animal species have been observed in the project area. As to the alligator, the only area in which it could nest would be in the existing excavated borrow pit, and none of the proposed construction will take place in that area. More than likely, the alligator had walked into the area from Clear Lake, Kanapaha Prairie, or Lake Alice. The proposed structures will not affect the movement of the alligator nor its feeding habits. Drainage of wetlands Because the boardwalk and bridge are elevated structures over waters and wetlands, and the City has not proposed to construct ditches or other drainage systems, the proposed system will not cause drainage of the wetlands. Coral/macro-marine algae/grassbeds The proposed system is not located in, on, or over coral communities, macro/marine algae, or a submerged grassbed community. D. Were the Petitions Filed for an Improper Purpose? Prior to the filing of their petitions, Petitioners did not consult with experts, and they prepared no scientific investigations. Their experts were not retained until just prior to hearing. Petitioners are citizens who have genuine concerns with the project. They are mainly longtime residents of the area who fear that the Greenway will not be properly maintained by the City; it will increase flooding in the area; it will cause water quality violations; and it will attract thousands of persons who will have unimpeded access to the back yards of nearby residents. Although these concerns were either not substantiated at hearing or are irrelevant to District permitting criteria, they were nonetheless filed in good faith and not for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the applications of the City of Gainesville and issuing the requested permits. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602-1110
Findings Of Fact Petitioners own two contiguous residential lots, Lots 7 and 8, in Block 436 of the subdivision of Block 111 in the City of Clewiston, Florida, which were transferred to them by warranty deed dated September 27, 1978. There is no issue regarding ownership of both lots. Petitioners obtained a building permit from the City of Clewiston to construct a duplex residence on Lot 7 at a cost of approximately $40,000 to match the one already existing on Lot 8. Lot 8 now contains a 1050 gallon septic tank for the use of that building and in February, 1985, Petitioners applied for a permit to install another 1050 gallon septic tank for the use of the new construction. The tank was to straddle the property line between Lots 7 and 8. No written denial of the permit was ever furnished to Petitioners. The evidence indicates, however, that at some point around that time, Petitioner Gonzalez was advised verbally, by someone in the County Office, that her application was denied because the projected septic tank was to be located at least partly on both lots which is not permissible unless the lots were to be in some way irrevocably tied together. According to the pertinent DHRS rule, a septic tank may not be located within 5 feet of a property line. Petitioners took no action to install the septic tank (although the second structure was constructed). In late July, 1986, Petitioner again applied for a permit to install the 1050 gallon tank in the same location and again the application was denied, this time in writing. The reason for denial given this time included the fact that the additional tank would far exceed the allowable maximum daily sewage flow for the parcel of land in question. Under applicable rules of DHRS, maximum daily residential sewage flow allowable is 2500 gallons per day per acre. The two lots taken together cover approximately 1/4 acre which would permit approximately 625 gallons of sewage flow per day. The existing tank on Lot 8 utilizes or exceeds the daily allowable sewage flow even without the installation of the subject tank which would double the flow. When the second application was denied, Petitioner requested a variance from DHRS which, on October 22, 1986, was denied for the reasons stated in the paragraph next above. The city of Clewiston's current sewage system is presently at full capacity and a moratorium on new hook-ups is and has, at all times pertinent hereto, been in effect. Consequently, Petitioners have not been able to hook up to the city system which is not expected to have available capacity until 1990 or 1991. In the interim, the new construction cannot be occupied since it cannot be connected to the existing septic tank, a new septic tank, or the city sewer system. When the new city system is available, hook-ups of both the new and the existing construction will be mandatory. The current Environmental Health Director, Mr. McDougle, contends that under the current state of the law regarding the location of septic tanks. The county would consider the property owned by the Petitioners as two separate lots even though they were conveyed on the same warranty deed. Therefore, the lots would be 50 x 115 feet each and the proposed installation, which straddles the joint line between the lots, would violate the setback requirements. This defect could be remedied , however , by the construction of a building on the joint line, by a deed restriction preventing the separation of the lots, or by some other approved action which would insure the two lots would always be treated as one. Petitioners have invested their life savings in the construction of the second building ( the one on Lot 7), which, while completed, perforce stands empty. Economically, the current situation is hurting them. There was no evidence to show, even if material, that installation of the septic tank in question would permit occupancy of the building, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioners' application for a permit to construct a 1050 gallon septic tank on Lots 7 & 8, Block 436, Clewiston, Florida be denied. RECOMMENDED this 12th day of October, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1987. COPIES FURNISHED: Elvira Gonzalez 601 Saginaw Avenue Clewiston, Florida 33440 Anthony N. DeLuccia, Jr., Esquire District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
