The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system permit or the grant of a variance from the rule by which that permit application was denied so as to be authorized to install an on-site sewage disposal system (septic tank system) for his property near the Suwannee River in Dixie County, Florida within the purview of Section 381.272, Florida Statutes and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner, Desmond Harbroe, owns real property in Dixie County, Florida consisting of a lot described as lot 28 of Riverbend Estates. The lot in Riverbend Estates is located at "Hinton's Landing" on the west bank of the Suwannee River. The lot itself is located approximately 1500 feet west of the shoreline of the Suwannee River on a connected canal. The canal is characterized by high banks at the location of the lot and the lot is one of the highest lots in the subdivision, with overstory vegetation consisting of large pines and live oaks. The lot is gently sloping and characterized by well- drained soil consisting of sand down to a depth of 72 inches (a "slight limited" soil). The lot is approximately one and one quarter acres in size and was purchased May 29, 1976. The Petitioner contemplates constructing a single family residence on the lot and it does not presently contain an OSDS. The proposed residence would consist of a two bedroom dwelling with a heated or cooled area of approximately 1200 square feet. A dwelling of this size and type is equated in the standards in the Department's rules with production of 450 gallons per days (GPD) of sewage flow. Although no specific evidence of expected sewage is of record, there is no dispute regarding that figure. Herbert H. Raker is a registered land surveyor located at Box 626, Cross City, Florida 32628. Mr. Raker surveyed the subject lot and established a benchmark elevation of 13.72 feet above main sea level (MSL). That benchmark is six inches above the actual ground or grade level at the location of the benchmark. The site of the proposed installation itself is at an elevation of 13.22 feet above MSL. The ten-year flood elevation for the subject property is 15 feet above MSL. That elevation was established through data supplied by the Suwannee River Water Management District to the Petitioner and submitted to the Department in the application process. That information and the document upon which it is predicated is hearsay, but was not objected to at hearing and, in any event, constitutes an exception to the hearsay rule in the category of government records, compilations and reports for purposes of Section 90.803(8), Florida Statutes, and is, thus, admissable and accepted by the Hearing Officer. The subject property purchased by the Petitioner was for building a single family residence as described above. On December 12, 1989 the Petitioner received a letter from the Suwannee River Water Management District advising that there was no objection by the District to filling the lot in order to bring the surface grade level of that property to a sufficient height so as to comport with the "two year flood" elevation. The critical elevation in relation to the rules at issue however is the ten-year flood elevation. This advice from the Water Management District does not address the issue of filling the lot to bring it up to a level so that the bottom of the subject drain fill proposed would be above the ten-year flood elevation and thus comport with the rules at issue. In this connection, the property is located within the ten year flood plain based upon the evidence establishing that flood plain level to be at IS feet above MSL. The property is also located within the "regulatory floodway" of the Suwannee River. This is a geographical area closer in proximity to the actual free flowing portion of the river than is the boundary of the ten-year flood elevation demarcated area. The rule cited below provides that mounded systems requiring a placement of fill material, or construction above grade, will not be authorized in the regulatory floodway unless there is certification by registered engineers that the placement of fill or the structure placed would not increase the water surface elevation of the "base flood". That certification must be substantiated by data and the method of calculation used by the engineer must be provided. Here there is only a two and one half foot difference between the grade level of the property involved at the site of the proposed installation and the 15 foot ten-year flood elevation. Thus, as Mr. Harbroe indicates, given the overall size of his lot, it would be possible to fill the property to the proper grade level so that the bottom of the drain field trenches, when installed in the resulting mound, would be above the ten- year flood elevation. The Petitioner however supplied no detailed information about how such an alternative system might be installed and operate and, most particularly, did not supply the requisite engineering certification and information which might show that the installation of such a mounded system would not raise the level of the base flood. This might have been done, for instance, by establishing that a sufficient volume of fill could be removed from his property, elsewhere, to build the requisite mound and thereby not alter the surface elevation of the base flood. Such evidence is lacking in this proceeding however and cannot therefore serve as a basis for a grant of the permit, by means of illustrating an alternative system or approach for treating the sewage effluent which will comport with the rules. Pursuant to the authority of the statutes cited in the conclusions of law below and in related rules, lots platted before 1972 are accorded special consideration in determining whether to grant septic tank system permits (or variances). The Petitioner, however, did not adduce evidence of whether the subdivision known by the name "Riverbend Estates" of which his lot 28 is a part, is a platted subdivision at all, and did not establish that even if it is that it was platted and recorded before 1972. Thus no evidence has been adduced which will justify the special consideration provided for in the authority cited below. The grant of variances from the permitting rules involve the demonstration of hardship as a basic consideration. Hardship involves a demonstration that there is no reasonable means by which an on-site disposal system can be installed which will comply with the permitting rules, that is, impossibility of compliance is the bellwether for demonstration of hardship. It is also provided in the variance statute and rules cited below that the hardship may not be intentionally caused by the action of the applicant for the permit or variance himself. The Petitioner, having the burden of proof here, did not adduce direct evidence to establish that any hardship preventing compliance with the permitting rules was not intentionally caused by the Petitioner. However, the overall tenor of the Petitioner's testimony establishes inferentially, without doubt, that the hardship involving the Petitioner's impossibility of compliance with the permitting rules, given the presently prevailing grade level of his lot and installation site, was caused merely by his purchase of the property. He took no action involving that purchase to place himself in a position where he intentionally could claim a hardship situation and a justification of variance from the permitting rules and thus render himself legally capable of installing the subject system. He merely purchased the lot in good faith with, the intention of using it for a single family dwelling and did not intend by that mere act to place himself in a position to claim a hardship situation and thus circumvent the permitting rules. The similar use of the nearby lots in the subdivision for single family dwellings and which he was aware already had permitted septic tank type on-site disposal systems in place and operating led him to believe he could install a similar system. He was thus an innocent purchaser and did not intentionally create a hardship situation to thereby avoid compliance with permitting rules. In fact, however, the Petitioner has not truly established that he is in a hardship situation, that is, that he can not possibly comply with the permitting rules. This is because, by his own admission, he has sufficient land area on his lot to permit the "mounding" of an on-site disposal system. If this were accomplished it is quite likely that he could comply with the permitting rules and not require a variance, based upon a showing of hardship. The problem with this approach is that the Petitioner's proof fails because he did not adduce the requisite engineering certification and testimony justifying the grant of a permit based upon the building of the lot and mounding of the system. If this were accomplished in the future, it is quite likely that a permit could be granted for this lot. In a like vein, in terms of the variance issue portion of this proceeding, it has not been demonstrated by the Petitioner that no reasonable alternative exists for the treatment of the sewage involved nor has it been demonstrated that the discharge from the Petitioner's proposed sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters. In this last regard, it although soil conditions prevailing at the proposed installation site and water table elevations beneath the surface of the property are appropriate as that relates to the requisite interval of "slight limited" soil between the bottom of drain field absorption beds and the water table elevation, the fact remains that these trenches or beds are beneath the ten-year flood elevation and thus pose the potential to degrade ground or surface testers. Thus the other requisite elements for establishment of entitlement to a variance from the permitting rules have not been made out by the Petitioner's proof. In fact, the Petitioner's proof establishes that a reasonable alternative may indeed exist for the treatment of the sewage involved with mounding of the system, since his grade elevation is only approximately 2.5 feet below the relevant flood elevation and unrefuted evidence shows that he has sufficient area on his lot to permit the mounding of the system with the requisite adjacent "buffer area". This constitutes a reasonable alternative which may comply with the permitting rules. Unfortunately, however, Petitioner's proof did not include the requisite engineering information and certification so that a recommendation for grant of the permit in the regulatory floodway can be made at this time. Having been denied his permit application on December 19, 1989 the Petitioner on March 5, 1989 applied for the subject variance referenced above. On April l9, 1990 the Petitioner was advised by the Respondent that it was useless to proceed with a variance application and that a formal administrative hearing should be sought before Division of Administrative Hearings instead. This is because of Executive Order 90-14 entered by the Governor, which incorporated the "Suwannee River Task Force" recommendation in evidence and, specifically, "recommendation #36." That portion of the report in effect recommended that on-site sewage disposal systems within the ten year flood plain area should be prohibited. The Department interpreted the effect of that executive order, incorporating the recommended prohibition from the task force report, to mean that such variances absolutely could not be granted by the Department, hence, its recommendation to the Petitioner and others similarly situated, that they should immediately seek a formal administrative hearing on the question, rather than expend time and expense pursuing the Department's internal variance procedure. The Department has thus in this in similar cases interpreted that executive order to create, and effect, a conclusive presumption that variances can not be granted in any case in which the installation site for the on- site sewage disposal system is at or beneath the ten-year flood elevation. In effect, therefore, it declines to exercise any discretion when confronted with variance request related to lots or property where the installation site for the proposed system occurs beneath the ten-year flood elevation.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered denying the Petitioner's application for an on-site sewage disposal permit and denying a variance from the statutory and rule requirements related to permitting for the reasons found and concluded above. DONE and ENTERED this 18th day of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administration Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 18th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4170 Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted but not directly material to resolution of the issues presented for adjudication. Petitioner's Proposed Findings of Fact: (None submitted) COPIES FURNISHED: Desmond Harbroe 4550 N.W. 43rd Street Ft. Lauderdale, FL 33319 Frances S. Childers, Esquire Asst. District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, FL 32609 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 =================================================================
The Issue Whether Respondents' Division of Hotel and Restaurants' license should be suspended or revoked, or a civil penalty assessed for alleged violation of Division Rule 7C-4.01(5)(c) and Florida Statute s. 509.221, as set forth in Notice to Show Cause issued by the Petitioner.
Findings Of Fact On April 19, 1977, Johnny Bell, inspector for petitioner's Division of Hotels and Restaurants, received notification from the Health Department of Sarasota County that respondents' place of business, Port-of-Call, resort apartments located at Longboat Key, Florida, was not connected to the sewerage system of Longboat Key. Bell inspected respondents' premises and discovered that a septic tank system was in use at the Port-of-Call. He informed respondents that they must connect to an "approved" sewerage system within sixty (60) days. On June 20, 1977, Bell returned to the premises and found that no action had been taken to connect to the Longboat Key system. Respondent Edward W. Henderson informed him that he should not have to go on such a system because his septic tanks were adequate and functioning properly. Bell did not examine the septic tanks or ascertain if they were, in fact, in proper condition and operating satisfactorily. He proceeded to issue a Notice to Show Cause as to why respondents' license No. 68-606H should not have a civil penalty assessed against it or be suspended or revoked. The stated cause for such intended action was as follows: "Division Rule 7C-4.01(5)(c) ; Florida Statutes 509.221 -- Failure to have sewage system hooked into public sewerage system." The Notice to Show Cause also informed respondents of their right to an Administrative Hearing under Chapter 120, Florida Statutes. Respondents thereafter requested such a hearing. There is no food operation at the Port-of- Call. (Testimony of Bell, Exhibit 1)
Recommendation That the charges against respondents be dismissed. Done and Entered this 10th day of October, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence C. Winson, Esquire Department of Business Regulation The Johns Building, Suite 210 725 South Bronough Street Tallahassee, Florida 32304 John W. Meshad, Esquire 100 South Washington Boulevard Sarasota, Florida 33577
Findings Of Fact Petitioners purchased property in New Smyrna Beach, Florida to build a home. The property, which was platted in the 1940's measures 50 feet by 200 feet. The east side of the property (50') is located on Engram Road. The northern 200 feet and western 50 feet of the property is waterfront, situated on a tidal inlet from the Indian River. The Indian River contains the last remaining Class II waters in Volusia County. Class II waters in Florida are waters in which the state allows shellfish harvesting for public consumption. As the last remaining Class II waters in the county, the area requires special protection from all possible sources of pollution and negative environmental impact, including sewage outflow. According to the Petitioner, the seller of the property indicated to Petitioners that the property had been approved for constructing a home. The seller substantiated his assertion with a letter from the Volusia County Planning and Zoning Department stating that a county variance had been granted to construct a single family dwelling on this property, subject to certain conditions. The county approval letter specified the required use of an aerobic wastewater treatment system. The Petitioners were unaware of the state regulations and standards for onsite sewage disposal systems. The Petitioners hired a builder who applied to the HRS Volusia County Public Health Department for a septic tank permit. The permit was denied because the proposed septic tank system violated 50 foot set back required of sewage treatment systems from Class II waters. The proposed drainfield was located within 28 feet of the mean high water line, and because of the configuration of the lot and its depth of only 50 feet the proposed site cannot meet the state standard. The Petitioners' builder subsequently applied to the state Department of Health and Rehabilitative Services for a variance from the code standards in order to obtain the septic tank construction permit. The state denied the variance stating that the "request was not considered to be a minor deviation from the minimum requirements". The Petitioners received no notification of the time and place of the Variance Review Board's meeting because the variance application was submitted by their builder. Petitioners had no opportunity to personally address the Variance Board when their application was being considered. A sewer line is located within 1000 feet of the property and a sewage grinding and pumping system could be installed to pump sewage from the site to the sewer line. Such a system, costs approximately the same amount as an onsite system. A grinding and pumping system is an economically reasonable alternative to permit development of the lot.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, the arguments of the parties, it is therefore RECOMMENDED: That the request for a variance be DENIED. DONE and ENTERED this 2nd day of April, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1991. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 132 Winewood Boulevard Tallahassee, FL 32399-0700 Jerome and Bernice Massel 6426 Engram Road New Smyrna Beach, FL 32169 Charlene J. Petersen, Esquire HRS-District 4 P.O. Box 2417 Jacksonville, FL 32231-0083
The Issue The issue for consideration in this case concerns whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit authorizing the installation of an OSDS on property which they own near the Suwannee River in Dixie County, Florida, in accordance with the permitting requirements of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners are the owners of certain real property located in Dixie County, Florida, in the proximity of the Suwannee River. The property is described as Lot 38, Highpoint Suwannee Riverfront Estates. The lot in question is 82 feet by 141 feet in size and was purchased in April, 1988 for approximately $5000.00. The lot, and the subdivision it is in, was platted in 1983. On February 21, 1990, the Petitioners made application for an on-site sewage disposal system ("OSDS") permit, seeking to install such a system on this lot in order to be able to construct a vacation cottage on the lot The proposed cottage would contain one bedroom and would have a heated and cooled area of approximately 500 square feet. Upon reviewing the application, the, Respondent informed the Petitioners that they would need to have a surveyor establish the elevation of their lot, and particularly the site of the proposed OSDS installation, as well as to establish, through contact with the Suwannee River Water Management District, the ten-year flood elevation for the property. Accordingly, the Petitioners obtained a survey by `Mr. Herbert Raker, a registered land surveyor of Cross City, Florida. That survey shows a benchmark elevation of 13.09 feet above mean sea level ("MSL") That benchmark elevation is six inches above the actual grade surface of the lot so that the elevation at the proposed OSDS installation site is 12.59 feet above MSL. The ten-year flood elevation for the property is 15 feet above MSL, as established by data from the Suwannee River Water Management District contained in a report which is in evidence as Respondent's Exhibit 1. That flood elevation data was submitted to the Respondent by the Petitioners with the application for the OSDS permit. The property in question is located within the ten- year flood plain of the Suwannee River, and it is also located within the regulatory floodway of the River. On April 24, 1990, after advising the Petitioners of the denial of the OSDS permit application, the Respondent, by letter, advised the Petitioners that they should pursue a formal administrative proceeding rather than file an informal variance application before the Respondent's own Variance Board. The Respondent took the position that a variance could not be granted from the requirements of Rule 10D- 6.47(6), Florida Administrative Code, because the subject property was located within the ten-year flood plain of the Suwannee River and because of the Respondent's interpretation of the affect of the Governor's Executive Order 90- 14, which adopted by reference the Suwannee River Task Force recommendation that all such systems be prohibited within the ten-year flood plain. The Respondent thus declined to exercise its discretion, accorded it in the statute and rule cited hereinbelow, to entertain and consider a variance application. Finally, it is established that the lot in question is not subject to frequent flooding; but because the surface grade is beneath the ten-year flood elevation, the bottom of the drain field trenches absorption bed to be installed would also be beneath the ten-year flood elevation. In other respects, the property is a amenable to the installation of an effective OSDS because the wet season water table is 48 inches beneath the surface grade and would be more than 24 inches beneath the proposed drain field. The normal water table is approximately 60 inches beneath the surface grade. Appropriate limited soils are present beneath the first six inches of soil below the surface and consist of fine sand, light brown and brown fine sand, down to 60 inches, which is appropriate for effective subterranean treatment and disposal of sewage effluent. The Petitioners established a definite hardship on their part by the fact that they have paid a substantial sum for the lot and are now unable to develop it unless they receive entitlement to an OSDS or some reasonable alternative. In that regard, no sufficient proof of truly effective, reasonable alternatives was established by the Petitioners. However, they did establish that an anaerobic septic tank and drain field disposal system might be an effective alternative treatment and disposal method for the property in question. An aerobic system involves the injection of air into the attendant septic tank to support aerobic bacteria which break down and treat sewage at a faster, more effective rate than does the normal anaerobic bacteria-based system. The resulting effluent is substantially lower in BOD and suspended solids than is the effluent from the normal subterranean and anaerobic septic tank and drain field disposal system. The problem with such an aerobic system is that it involves mechanical equipment, especially, an external electric motor and pump to force air into the system. This is disadvantageous in that, if the equipment suffers a breakdown, then treatment and appropriate disposal of the effluent stops. The untreated sewage can then rise to the surface of the property or otherwise pollute ground or surface waters and potentially cause a public health hazard. Thus, such systems would require inspection periodically to insure that they are in adequate working order because if the mechanical system malfunctions, the system will continue to put effluent through its drain field without adequate treatment. In this circumstance, the occupants of the dwelling served by the system might not notice for long periods of time that it is inoperative because the system will continue to dispose of effluent, but just of an untreated nature. Accordingly, when the motor and air pump system becomes inoperative, there is less incentive for the owner to repair it. Thus, it is likely that if such a system were installed, some means would have to be found to insure that the owner keeps the system in good repair and working order. The means by which such an arrangement for insuring that such an aerobic system works properly at all times was not established in this record, however. Consequently, the Petitioners failed to establish that reasonable alternatives to the proposed conventional system exist and what they might consist of.
Recommendation Having considered the foregoing findings of Fact, Conclusions of Law, the evidence of record, the carndor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioners' application for an OSDS permit. DONE AND ENTERED this 21st day of December, 1990, in Tallahassee, Leon County, Florida P. MICHAEL RUFF 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 21st day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3112 The Petitioners filed no proposed findings of fact. Respondent's Proposed Findings of Fact: 1-9. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Betsy K. Lanier, pro se P.O. Box 238 Old Town, FL 32680 Frances S. Childers, Esq. Assistant District III Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
The Issue Whether the Petitioner's request for variance should be granted.
Findings Of Fact Petitioner owns an undeveloped parcel of land in Palm Beach, County which is zoned industrial and on which he intends to construct a storage building to house and repair farm equipment. To provide sewage treatment at the site, Petitioner had designed an on site sewage disposal system and applied for a septic tank permit which was denied as was his variance request. The closest public sewage treatment plant to the property is over five miles from the site, and the closest private treatment is approximately three miles from the subject site. Petitioner has no easement to either site if capacity were available and if he chose to connect. However, the proof did not show capacity at either site. Although Petitioner does not intend to pollute the groundwater, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of farm equipment could result in the disposition of prohibited hazardous waste into the groundwater. Alternative methods of waste disposal are available which would properly dispose of the waste and, yet, protect the groundwater from contamination by hazardous waste. Such systems include certain aerobic treatment units and package plants. The monetary costs of these systems is greater than the septic tank proposal; however, the proof did not demonstrate that the cost was prohibitive or a hardship. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner, the proof failed to demonstrate lack of reasonable alternatives of waste disposal and the absence of adverse effect of the operation to the groundwater. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions although a survey of the property dated September 3, 1985, indicates that the subject parcel was not platted. Accordingly, the denial of the variance was proper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989. JANE C. HAYMAN 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 6th day of July 1989. COPIES FURNISHED: Lee B. Sayler, Esquire 50 South U.S. Highway One Suite 303 Jupiter, Florida 33477 Peggy G. Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for consideration in the proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system (OSDS) permit or is entitled to a variance from the permitting requirements in the below-cited statutory provision and related rules, so as to be authorized to install an OSDS on his property near the Suwannee River in Dixie County, Florida. See Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner owns certain real property in Dixie County, Florida in the vicinity of the town of Suwannee. The property is more particularly described as Lot 511, Suwannee Shores III. The property is located in Section 19, Township l3 South, Range 12 East, in Dixie County. The lot is approximately 50 feet by 100 feet in size and was purchased in 1985. The Petitioner made application for an OSDS permit on March 8, 1990 for the property. The residence which the proposed system would serve consists of a heated or cooled area of approximately 24 by 34 feet. The Petitioner had an elevation of the property at the proposed installation site performed by a registered land surveyor at the behest of the Department, when he learned from the Department representative that such would be required before a permit could be granted. The Department also required the Petitioner to furnish evidence of whether the property was above or below the ten-year flood elevation. Accordingly, Petitioner's exhibit 1 establishes a benchmark elevation of 4.1 feet above main sea level (MSL) for the property and installation site. The ten-year flood elevation for the property in question is 17 feet above MSL. This is established by a report prepared by the Suwannee River Water Management District and admitted into evidence without objection, based upon records maintained by the Water Management District which contain data from the Federal Emergency Management Administration (FEMA). That data shows that for the river mile of the Suwannee River where the property is located, which is river mile 3, that the ten-year flood elevation is 17 feet above MSL. Thus, the property in question is located within the ten-year flood elevation of the Suwannee River. It is not, however, located within the regulatory floodway of the Suwannee River. Thus, the Petitioner has not established that the property is above the ten-year flood elevation for the Suwannee River. Nor have they established that a sufficient differential exists between the bottom of the proposed location of the drain field trenches and the wet season water table. In fact, Respondent's composite exhibit 1 and the testimony of Mr. Fross establishes that the wet season water table is only approximately 3 inches beneath the surface of the existing grade of the lot. The water table existing at the time of the site evaluation by Mr. Fross was only 36 inches below existing grade which would not allow sufficient differential between the bottom of the drain field trench and the water table, because less than 24 inches would separate the two planes. The results of Mr. Fross's site evaluation do show that the proper "slight limited" soils exist at the site down to a depth of 36 inches, at least where the water table existed at the time of the evaluation. It was also established that the property has a potable water supply from a central water system for the town of Suwannee and, therefore, the various set back distance related to the distance the proposed septic tank and drain field have to be separated from a potable water well or wells would not apply. These last two factors showing compliance with the portions of the rule which dictates the type of soils which must be present for such a system to be installed and the protection for potable water supplies, are insufficient to justify grant of the permit, however. The fact remains that the property is some 12.9 feet beneath the ten-year flood elevation and that it is not possible, starting from the existing grade to install a septic tank and drain field system at sufficient elevation above the water table at the present time, or the wet season water table, so that an appropriate distance for effluent to be treated in appropriate slight limited soil will exist. Finally, the Petitioner did not establish any reasonable alternatives to treatment of the effluent from the residence to be placed on the lot and thus did not establish that a means can be found to prevent the effluent from the OSDS from adversely impacting the public health or the surface or ground waters involved at the disposal site. Thus, it has not been established that any type of OSDS sought to be installed upon the lot in question would be an immaterial deviation from the permitting requirements in the statute and rules cited below. The Petitioner did not formerly apply for a variance from the permitting statute and rules. This is because the Department advised him that availing himself of the informal variance procedure would be futile because the Governor's Executive Order 90-14, entered on January 17, 1990, in the view of the Department, took away the Department's discretion to entertain variance applications and to consider whether to grant them for properties lying beneath the ten-year flood elevation of the Suwannee River. That Executive Order, in effect, directed that all OSDS's beneath the ten-year flood elevation be prohibited, by its adoption, by reference, of the Suwannee River Task Force recommendations. In any event, and somewhat parenthetically, it should be pointed out that although the Petitioner definitely will undergo a hardship if a permit or variance is not granted because of the money expended to purchase the lot, which will be largely unusable without the ability to establish a residence on it by installing an OSDS. It has not been proven by the Petitioner that no reasonable alternatives exist to the installation of a conventional OSDS subterranean- type system on the lot. Thus, one element of the variance criteria cited below has not been met nor has it been established that the installation of an OSDS would not have an adverse impact on public health and would not cause degradation of the ground or surface waters involved. Thus, to the extent the question of the Petitioner's entitlement to a variance can be entertained in this proceeding, the elements required for the grant of a variance have not been established by Petitioner's proof. It particularly has not been established that a grant of an OSDS permit or variance for such a system to be installed in this lot would not be a substantial deviation from the permitting requirements enumerated below. This is particularly true because the property is such a great distance beneath the ten-year flood elevation. In summary, in addition to the findings in the last above paragraph, it has not been established that a sufficient distance between the water table elevations and the bottom of the proposed drain field trench location will exist so as to comply with the permitting requirements in this regard so as to justify the grant of an OSDS permit nor has it been shown that the property is above the ten-year flood elevation for purposes of that permitting requirement and Rule 10D-6.47(6), Florida Administrative Code.
Recommendation It is, accordingly, RECOMMENDED: That a Final Order be entered denying the application of Marvin H. Osteen, Jr. for an OSDS permit. DONE and ENTERED this 19th day of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-3115 Respondent's Proposed Findings of Fact 1-10. Accepted. COPIES FURNISHED: Marvin H. Osteen, Jr. Post Office Box 89 Suwannee, FL 32521 Frances S. Childers, Esquire Asst. District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, FL 32609 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
Findings Of Fact The Petitioner is the owner of real property located in Dixie County, Florida, more particularly described as Tract 10, Suwannee Shores Run Subdivision. The property is approximately one acre in size and was purchased in December of 1989. The subdivision is unrecorded, and there was no testimony regarding a platting date thereof. On January 17, 1990, the Petitioner made an application for an OSDS permit for the aforesaid property. The application was for a new single-family mobile home system. The residence involved will contain two bedrooms and a heated and cooled area of approximately 480 square feet, with an approximate 300-gallon-per-day sewage flow. Upon receiving the application, the Department's local public health official informed the Petitioner that he would have to obtain a benchmark elevation for the surface of his property and also establish the ten-year flood elevation for the property. The Petitioner, therefore, obtained the services of a registered land surveyor, who established a benchmark elevation for the subject property of 19.23 feet above mean sea level ("MSL"). The mark is actually 6 inches above ground level. The actual elevation of the surface grade of the property at the proposed septic tank system installation site is 19 feet above MSL. The ground water level at the time of the evaluation of the site by the Department's personnel was 66 inches below the surface of the lot. The wet season ground water or water table level is 60 inches below the surface of the lot. The property is characterized by slight to moderate limited soils, consisting of fine sand from 6 inches depth down to 60 inches depth. The first 6 inches of soil near the surface of the property is organic in nature. The information, contained in a report promulgated by the Suwannee River Water Management District and submitted to the Department by the Petitioner with the permit application, shows that the ten-year flood elevation for the property in question is 23 feet above MSL. That ten-year flood elevation was not refuted. The property, thus, is located within the ten-year flood plain of the Suwannee River; and it is also located within the "regulatory floodway". There is not a central water system available to the property, and potable water for the subject dwelling will come from a well. In addition to lying beneath the ten-year flood elevation, the property lies within the regulatory floodway of the Suwannee River, as mentioned above. This means that if a mounded septic tank and drain-field system were installed, (which would likely result in appropriate treatment of the sewage effluent because of site conditions referenced herein); in order to install such a system, to raise the drain fields above the ten-year flood elevation, a certification by a registered engineer would have to be performed to establish that the installation of the required volume of fill dirt for the mounded system would not cause an elevation of the "base flood". No such engineering testimony or evidence was offered in this proceeding, however. Thus, this portion of Rule 10-6.047(6), Florida Administrative Code, has not been complied with. The OSDS could appropriately be installed from an environmental standpoint, given the depth of appropriate moderate to slightly limited soils prevailing at the site and the depth of the water table. The estimated wet season water table is 60 inches below the existing surface grade, and the normal water table is 66 inches below the surface grade. Although organic soil prevails for the first 6 inches at the site; below the first 6 inches, the soils are characterized as being fine sand. This soil type and condition, as well as the depth of the water table below the location of the drain field and septic tank site establishes that installation and operation of an OSDS in this location would likely be successful. Since the property and the installation site are beneath the ten-year flood elevation, however, a mounded system would have to be installed to raise the bottom of the drain-field trenches or absorption beds above that ten-year flood elevation referenced above. Thus, although a mounded system would appear to be feasible, the appropriate engineering testimony, with regard to its presence in the regulatory floodway, was not offered. Thus, the grant of the permit based upon mounding of the system as a reasonable alternative approach to successful treatment and disposal of the effluent in question has not been established. The Respondent, by letter of April 24, 1990, advised the Petitioner of the denial of the OSDS permit and also advised the Petitioner that he should pursue a formal administrative proceeding before the Division of Administrative Hearings, rather than file an informal variance application before the Respondent's own variance board. The Respondent took the position that a variance could not be granted from the requirements of Rule 10D-6.047(6), Florida Administrative Code, because the property was located within the ten- year flood elevation of the Suwannee River and because of the Respondent's interpretation of the effect of the Governor's Executive Order No. 90-14, which adopted by reference the Suwannee River Task Force recommendation that all such OSDS's be prohibited within the ten-year flood elevation. The Respondent thus declined to exercise its discretion, accorded it in the statute and rules cited hereinbelow, to entertain and consider a variance application. It was established that the lot in question is not subject to frequent flooding. However, because the surface grade is beneath the ten-year flood elevation, the bottom of the drain-field trenches or absorption beds would also be beneath the ten-year flood elevation, although the property is amenable to the installation of an effective OSDS otherwise because of the depth of the wet season water table and the types of soil prevailing at the site. The Petitioner established a hardship due to the fact that he has paid a substantial sum of money for the property and now is unable to develop it unless entitlement to an OSDS or some reasonable alternative is gained. No substantial proof of a truly-effective, reasonable alternative method of treating the effluent in question was established by the Petitioner. The Petitioner did establish, however, that a mounded system could be made to successfully operate, treat and dispose of the sewage effluent. A mounded system, however, would necessitate the required engineering certification and calculations before installation. No such effort has been made with appropriate engineering personnel and no evidence of such was adduced in this proceeding. The Petitioner has also raised the possibility that an aerobic septic tank and drain-field system might be an effective alternative treatment and disposal method for the property in question. An aerobic system involves the injection of air into the attendant septic tank to support aerobic bacteria, which break down and treat sewage at a faster, more effective rate than does the normal, anaerobic bacteria-based system. The resulting effluent is substantially lower in BOD and suspended solids than is the effluent from the normal, subterranean anaerobic septic tank and drain-field disposal system. The problem with such an aerobic system is that it involves mechanical equipment, especially an external electric motor and pump to force air into the system. This is disadvantageous in that if the equipment suffers a malfunction, the high level of treatment and disposal of the effluent is retarded. When the electric motor and/or pump malfunction and air is no longer injected into the septic tank to support the more active aerobic treatment bacteria, the system then ceases functioning as an aerobic system and becomes a simple anaerobic system using less effective anaerobic bacteria. In other words, it functions as a normal septic tank and drain-field system. If it has been installed in an area with marginal or deficient natural treatment conditions, such as inappropriate soils, high-water tables, or low surface elevations, beneath the ten-year flood elevation, for instance; the sewage, which is no longer being treated aerobically, can pose a threat to public health and the quality of the ground or surface waters involved at the site. The untreated or inadequately-treated sewage can rise to the surface of the property, back up in the residential toilets, or otherwise pollute ground or surface waters, if water table levels are too high. Thus, such systems would require inspection periodically to insure that they are in adequate working order, because if the mechanical system malfunctions, the system will continue to put effluent through its drain field, like a normal septic tank drain-field system, but without adequate treatment for a "low elevation" site such as this. In that circumstance, the occupants of the dwelling involved might not notice for long periods of time that the system is inoperative because it can continue to dispose of the effluent without it backing up into the residence. Accordingly, when the motor and air pump system becomes inoperative, there is less incentive for the owner to repair it. Thus, it is likely that if such a system were installed, some means would have to be found to insure that the owner keeps the system in good repair and working order. The means by which such an arrangement for insuring that an aerobic system operates properly at all times was not established in this record, however. The Department does not have the regulatory authority at the present time to conduct such periodic inspections nor the personnel or funds to do so. Consequently, the Petitioner failed to establish that reasonable alternatives to the proposed conventional OSDS exist.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit. DONE AND ENTERED this 27th day of February, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact Accepted. Accepted, but irrelevant. Rejected, as immaterial. Rejected, as immaterial. Rejected, as immaterial and irrelevant. This is not a rule challenge proceeding, pursuant to Section 120.56, Florida Statutes. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 7-11. Accepted. Respondent's Proposed Findings of Fact 1-10. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Richard Remington 165 Forest View Drive Land O'Lakes, FL 34638 Frances S. Childers, Esq. Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the state agency charged with regulating waste water treatment facilities and any sanitary nuisance which may emanate as a result of such operations pursuant to Chapters 381 and 386, Florida Statutes. Respondent, Larry G. Delucenay d/b/a Madhatter Utilities, Inc., owns and operates the Foxwood Waste Water Treatment Plant which is permitted and certified by the Department of Environmental Regulation. Respondent, in operating the Foxwood system, discharges its treated effluent water by means of two percolation ponds and a drip field located adjacent to the Cypress Cove Subdivision in Pasco County, Florida. Respondent owns and controls percolation ponds which are located adjacent to the Cypress Cove Subdivision and pumps human waste from a sewage treatment plant to percolation ponds in the Cypress Cove Subdivision. Respondent's percolation ponds are located approximately 50 ft. west of several residences and the ponds are accessible to the public. The ponds are elevated from 3 ft. to 5 ft. above the adjacent residential lots in the subdivision. However, there is a sand berm approximately 8 ft. high with a 12 yd. base which serves as a barrier between the percolation ponds and the Cypress Cove residences. On August 5, 1991, environmental health specialist Burke observed liquid flowing through the sand berm. He also observed erosion patterns in the sand on the berm which indicated liquid was flowing through it. Mr. Burke, while in the company of two other employees of Petitioner, observed liquid flowing from the percolation ponds onto Lake Floyd Drive to the south of the ponds. An improperly designed nearby lake exacerbated the flooding into Lake Floyd Drive. Respondent's waste water treatment system is designed according to the manufacturer's specifications. Pasco County allowed a number of developments to be built in the area without an adequate drainage system which adversely impacts Respondent's system to the point whereby untreated drainage outfall is draining into the southeast areas in Cypress Cove. Specifically, Respondent's pond #4 is designed to handle a water level up to 67.33 ft. During the investigation of the case, the water level in that pond was approximately 3 1/2 ft. higher than the designed capacity and was therefore causing overflow into the southeast areas of the development. (Respondent's Exhibits A, B and C.) Noteworthy also was the fact that a developer failed to complete a connection which has impacted Respondent's percolation pond and has forced the water to rise approximately 9 ft. higher than the designed capacity which has resulted in an overflow approximately 3 ft. to 4 ft. into the neighboring subdivision. As a result of the overflow, waste water spills over the percolation ponds and prevents the water from draining through the berms as designed. Petitioner's consulting engineer, Robert William Griffiths, credibly testified that a number of agencies having oversight responsibility such as Pasco County, the Southwest Florida Water Management District and the Department of Environmental Regulation, mandated that the drainage system be completed prior to the entire build-up of Cypress Cove. Despite the mandate, the drainage system was not completed and the County allowed the development to continue. Respondent is properly treating and chlorinating sewage in its plant which complies with Petitioner's requirements for the treatment of sewage in systems designed such as Respondent's. Respondent properly treats sewage flowing through its ponds and its berms are properly maintained. As early as October 1989, Respondent consulted and retained an engineer, Gerald E. Towson, who was commissioned to investigate the specifics of designing a waste water treatment plant based on concerns raised by the Department of Environmental Regulation (DER). As a result of that charge, Towson investigated the area and observed flooding and the stormwater runoff in the Cypress Cove neighborhood and attempted to find a solution to alleviate the problem. Consultant Towson also investigated Respondent's treatment plant to determine if the system was functioning as designed. Based on his observation and inspection of the treatment facility, the facility was operating as it was designed and properly filters and treats the effluent. However, based on Respondent's inability to control the stormwater runoff in the neighborhood created by the excess buildup, Towson concluded that there was no workable solution to the problem. As a result of Towson's inability to find a workable solution to handle the concerns raised by DER, Respondent suggested that Towson locate another wastewater treatment site which he found in a surrounding area. Respondent negotiated a lease arrangement with the landowner and initiated the permit process with DER. After the completion of numerous documents and engineering studies required by the Department of Environmental Regulation, Respondent was able to get the leased site permitted by DER as a slow drip irrigation system during March 1991. However, while construction of the system was scheduled to start during March 1991, as a result of vigorous protests from area neighbors, construction was delayed. Respondent thereafter investigated several sites but was unable to fine a suitable area near Cypress Cove. Towson completed a lengthy and cumbersome process in getting Respondent's construction application processed by DER. Initially the application was filed and following a DER review, a Notice of Intent to Issue was given. Hillsborough County thereafter reviewed the project and following their review, Hillsborough County issued its Notice of Intent to Grant and public notice was given. Based on Respondent's inability to comply with the neighbor's concerns regarding setback problems, DER withdrew its permit during May of 1991. Thereafter, Petitioner became involved in connecting with the Pasco County Public System. That connection was ultimately made and the County gave its approval following a delay based on a review occasioned by an employee who had been on vacation. Upon getting the approval, Petitioner ordered the equipment from a supplier which included installation of a magnetic meter and the necessary hookups into the Pasco County System. A "phased in" connection has been completed and the stormwater runoff problem has been abated. When the problems raised by DER and ultimately Petitioner was first brought to Respondent's attention, Pasco County did not have the capacity to handle the hookups required by Respondent's system. Respondent, has been involved in the installation of waste water treatment plants since 1967. Respondent is qualified as a Class "A" Licensee Waste Water Operator. He has been accepted as an expert in numerous administrative hearings. Respondent purchased the Foxwood System during 1982. Respondent utilized a 13 acre tract near Lake Floyd Drive. The system was licensed and designed with a flow capacity of 300,000 plus gallons per day. During the time when the Administrative Complaint was issued, the flow capacity was 220,000 gallons per day. The storm water system which was to have been completed by developers in the area was not connected to the public system and the County granted numerous other permits to daycare centers and several parking lots were constructed for other newly constructed commercial buildings in the area. As a result of the excess runoff created by the development in the area, Respondent's system was impacted and the water level was raised in the percolation ponds to the point whereby an overflow resulted. Petitioner adduced no evidence which showed that any physical or emotional harm resulted from the runoff. At all times while the concerns were being raised by Petitioner and other oversite agencies, the effluents in Respondent's systems were properly treated. Respondent vigorously attempted to abate the runoff created by the excess buildup in the area despite the fact that the problem was raised by Pasco County and over which Respondent had no control. Throughout the process of attempting to find alternate solutions and ultimately getting permitting approval to start construction of an alternative waste water treatment system, Respondent operated in good faith. When no alternate site became available, Respondent initially made application to connect with Pasco County System and that connection has now been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint herein in its entirety. DONE and ENTERED this 29 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 29 day of April, 1992. COPIES FURNISHED: THOMAS W CAUFMAN ESQ HRS DISTRICT V LEGAL OFFICE 11351 ULMERTON RD - STE 407 LARGO FL 34648 RANDALL C GRANTHAM ESQ COTTERILL GONZALEZ & GRANTHAM 1519 N MABRY - STE 100 LUTZ FL 33549 RICHARD S POWER AGENCY CLERK DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700 JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
The Issue The issues for consideration in these cases concern whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit, or the grant of a variance from the permitting requirements embodied in the statutes and rules cited herein, so as to authorize installation of an OSDS for property they own near the Suwanee River in Dixie County, Florida. See, Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners are the owners of certain real property located in Dixie County, Florida, in close proximity to the Suwanee River, more particularly described as Lots 22 and 37, High Point Suwanee Riverfront Estates, a subdivision platted and recorded in 1983. Lot 22 is approximately 150 feet by 127 feet by 121 feet, and Lot 37 is approximately 100 feet by 175 feet by 176 feet in dimension. The lots were purchased on September 22, 1987 and December 10, 1987, respectively. The parties have stipulated that evidence and factual testimony adduced in this proceeding shall apply equally to the circumstance of both lots since they are in close proximity to each other and have similar elevations and other site characteristics. Accordingly, these Findings of Fact will be based upon that stipulated, combined evidence; and all Findings of Fact will apply to both lots, except as to elevation figures peculiar to each lot and as otherwise noted in these Findings of Fact. The Petitioners purchased Lot 22 for $14,995.00 and Lot 37 for $12,500.00. They were purchased in September and December of 1987, respectively. The Petitioners purchased them with the intent of holding them for investment and building a retirement-type home on one of the lots. On March 22, 1990, the Petitioners applied for an OSDS permit for the lots in question. The new systems applied for would be for a frame-type "stilt home", which would contain three bedrooms and a heated and cooled area of 1,232 feet, which equates to a 350-450 gallons per day sewage flow under the standards contained in the Respondent's rules. Hubert H. Raker, a certified, land surveyor of Cross City, Florida, performed a survey on the property, shown by Petitioners' Exhibit NO. 1 in evidence. That survey establishes a benchmark elevation for Lot 22 of 11.79 feet above mean sea level ("MSL"). That benchmark is actually six inches above the grade level elevation of the property at the benchmark location. Lot 37 was established to have a benchmark elevation of 12.25 feet above MSL, also six inches above the actual grade level of the lot at the benchmark elevation site. The site of the proposed installation of the OSDS has an elevation of 11.19 feet above MSL, as to Lot 22, and 11.75 feet above MSL, as to Lot 37. The ground water level, at the time the site evaluation was made by the Respondent's representative, was 60 inches below the surface of the grade for Lot 22 and 54 inches below the surface of the grade for Lot 37. The wet season water table for both lots was shown, by "mottling" existing in the soil beneath the surface of the lots, to be 54 inches below `:he surface of both lots. The soil type for both lots, starting with six inches below the surface, is of a "slight limited" soil characteristic and is fine sand down to approximately 48 inches and from 48 inches to 72 inches, consists of "loamy-sand". Such soils are well adapted to OSDS installation and operation. The property was shown, by the Respondent's own Composite Exhibit NO. 2 in evidence, to not be subject to frequent flooding. The property is, however, as to both lots, beneath the ten-year flood elevation established by the Suwanee River Water Management District's calculations and admitted into evidence in this proceeding as a part of Respondent's Composite Exhibit NO. 2. The ten-year flood elevation for both lots was shown to be 15 feet above MSL. Thus the surface elevation of both lots is somewhat below the 15-foot, ten-year flood elevation. The bottom of the drain-field or absorption-bed trenches, if the systems were installed on the lots, would be a greater distance beneath the ten- year flood elevation. Thus, the property is located within the ten-year flood elevation of the Suwanee River and is also located within the regulatory floodway of the Suwanee River. Other properties and lots in the immediate proximity of the Petitioners' two lots are equipped with OSDS's, including a number of "mounded systems", involving the placement of septic tanks and drain fields in elevated earthen mounds in order to elevate them above the ten-year flood elevation. Petitioner, John W. Holian, testified in a general way that such a system might be feasible and advisable in his situation, as well as the possibility of installing an aerobic septic tank treatment and disposal system, involving the injection of air into the septic tanks so that aerobic, (as opposed to anaerobic), bacteria could perform the sewage treatment function, which typically perform the function better than does a conventional anaerobic system. Petitioner Holian, did not offer any detailed testimony or evidence which would explain and establish how such a system could work without endangering the health of the Petitioners or members of the general public, if placed on the lots in question below the ten-year flood elevation, nor if or how such a system would protect against degradation of the ground or surface waters involved in the proximity" of the sites. If the system were mounded above the ten-year flood elevation, the Petitioners did not establish, through proper engineering testimony and other evidence generated by a registered engineer, that the use of the fill for the earthen mound for such a system would not raise the level of the "base flood." In summary, although the Petitioners suggested such a mounded system or an aerobic system or such a system possibly used in combination, the Petitioners did not go beyond suggesting an alternative and did not offer evidence which could establish that such an alternative would be a reasonable operationally feasible one and would adequately protect the ground or surface waters and the members of the general public from health hazards associated with sewage effluent. See, Rule 10D-6.47(6), Florida Administrative Code. On May 1, 1990, the Respondent, by letter, advised the Petitioners that they should pursue a formal administrative proceeding upon the initial denial of their OSDS permit application and advised them that an application for a variance from the requirements of Rule 10D-6.47(6), Florida Administrative Code, regarding the ten-year flood elevation problem at issue, should not be pursued but rather, the formal hearing process before the Division of Administrative Hearings should be employed by the Petitioners. The Respondent asserts, that the Petitioners were not accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances or permits for OSDS within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwanee River Task Force" recommendation to preclude such systems beneath the ten year flood elevation was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications. The Petitioners apparently took-that advice because no variance application was filed. It is noted, somewhat parenthetically, however, that in terms of the requirements for the establishment of a right to a variance, the Petitioners have not shown that no reasonable alternatives exist to a standard subterranean septic tank and drain field OSDS, (such as those alternatives referenced in the paragraph next above, which efficacy was, nonetheless, not established by the Petitioners). Neither did the Petitioners establish, in terms of the variance requirements in the authority referenced below, that the installation of an OSDS would not have an adverse effect on the public's health or the quality of the ground or surface waters involved at the sites. Because these two necessary elements of proof necessary to establish the right to a variance, through hardship, were not proven by the Petitioners, the elements of proof necessary to establish the right to a hardship variance have not been made out by the Petitioners and one could not be granted under the proof of record in this proceeding, even had the Petitioners made formal application for such a variance. That is not to say, however, that with proper preparation and presentation of evidence, entitlement to a variance could not be established in the future.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3109 AND 90-3445 The Petitioners filed no proposed findings of fact. Respondent's Proposed Findings of Fact 1-9. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John W. Holian 466 South Lake Triplet Drive Casselberry, Florida Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, Florida 32609
