The Issue The issues presented in these cases are whether a 1987 Settlement Agreement entered into by the parties to this proceeding prohibits the issuance to Pasco County of a general permit for spray irrigation at the Embassy Hills facility on property adjacent to that owned by Marie Cook Matis, and whether discharge of wastewater into ponds at the Embassy Hills facility should be discontinued pending installation of a single media filtration system.
Findings Of Fact The Department of Environmental Protection (DEP) is charged with the regulation and enforcement of state statutes and rules governing construction and operation of wastewater treatment systems. The DEP is the successor agency to the Department of Environmental Regulation. Pasco County (County) is a political subdivision of the State of Florida. Pasco County owns and operates a wastewater collection, treatment, and disposal system that includes the facilities at issue in this proceeding. Marie Cook Matis (Matis) owns and resides on property located on Denton Avenue adjacent to the treatment facilities at issue in this proceeding. THE SPRAY IRRIGATION ISSUE The parties to this proceeding litigated the issuance of permits for construction and operation of the Embassy Hills and Hudson wastewater treatment and disposal facilities. The County had initially planned construction of 14 water disposal ponds at the Embassy Hills facility. Some of the ponds were located adjacent to property owned by Matis. By written settlement agreement between the parties dated December 18, 1987, the construction permit cases were resolved. As a part of the resolution of the dispute over the construction permits, the County agreed to eliminate the five ponds closest to the Matis property. Paragraph 1(c) of the 1987 settlement agreement provides as follows: The County agrees to reduce the number of ponds constructed at the Embassy disposal site located on Denton Avenue from fourteen (14) to nine (9) ponds by eliminating the five (5) most easterly ponds depicted on the county's construction plans.... By Final Order dated January 21, 1988, the dispute was dismissed and the construction permits were issued in accordance with the terms of the settlement agreement. In 1991, the County applied for issuance of operating permits for the constructed facilities. In February 1992, the DEP proposed to issue the operation permits. Matis challenged the issuance of the permits. The cases were referred to the Division of Administrative Hearings. In 1992, the County made application for construction of the "Northwest Pasco Rapid Rate Infiltration Basins" (RRIBs) some of which were located at the site of the previously deleted eastern ponds at Denton Avenue. Late in 1992, the DEP proposed to issue the permits. Matis again challenged the issuance of the permits. The cases were again referred to the Division of Administrative Hearings. The pending cases were subsequently consolidated for hearing as DOAH Case no. 92-2488. Formal hearing was held in August 1993. In October 1993, a Recommended Order was entered. One of the issues addressed in the October 1993 Recommended Order was whether the 1987 settlement agreement precluded permitting and construction of the five easterly RRIBs located adjacent to the Matis property. The Hearing Officer concluded that the settlement agreement did not preclude the County from applying for licensure of the RRIBs. The Secretary of DEP rejected the Hearing Officer's conclusion, stating that the settlement agreement had been specifically incorporated into the 1988 Final Order, and that the agreement addressed the issue of ponds located adjacent to the Matis property. The Secretary's December 3, 1993, Final Order stated that the doctrine of res judicata prevented relitigation of the dispute regarding the five easterly ponds, and that the doctrine of collateral estoppel prevented both the County and the DEP from "disclaiming the conditions set forth in the 1987 Settlement Agreement " The Secretary denied the application for construction of the RRIBs "without prejudice to the County to reapply for a construction permit providing alternative plans for relocating the five (5) percolation ponds " The County now seeks to utilize the property upon which the ponds would have been constructed as spray irrigation fields. The County asserts that the settlement agreement is silent as to any use other than percolation ponds, and that the agreement therefore does not prohibit spray irrigation fields. Matis asserts that the spray irrigation fields are prohibited by the terms of the 1987 settlement. The DEP initially declined to issue the general permit on grounds that the permit "may be inconsistent" with the terms of the 1987 settlement agreement, but in DEP's Proposed Recommended Order, DEP notes that it has now withdrawn its objection to the spray irrigation system. The effluent that would be discharged via spray irrigation is the same as that which would have been deposited into the percolation ponds. The evidence admitted into the instant hearing fails to establish that the County should be issued a general permit for the use of spray irrigation on the Denton Avenue property at the Embassy Hills wastewater plant. THE EMBASSY HILLS FILTRATION SYSTEM ISSUE Matis asserts that the single media filtration system included in the Embassy Hills construction permit has never been installed, and asserts that the discharge of water into the ponds should cease until after the permit condition has been met. Paragraph 1(b) of the 1987 settlement agreement provides as follows: The County agrees to install a single media filtration device at the Embassy Percolation Ponds located on Denton Avenue for the purpose of filtering effluent prior to disbursement to the pond system. The County further agrees that the effluent so filtered shall meet the following treatment parameters - 15 BOD, 5 TSS, and 10 nitrates . . . . In recommending approval of the operating permit applications, the Hearing Officer's 1993 Recommended Order stated that the treatment plants had been operating "without violations." Matis filed an exception to the Hearing Officer's finding related to the lack of violations, citing uncontested testimony acknowledging that the single media filtration system had not been installed. The DEP Final Order of December 1993 granted the exception and modified the Recommended Order, noting that the single media filtration device had not been installed at the Denton Avenue site. In granting the issuance of the operating permits, the proposed permits were modified to specifically include" any and all conditions, fulfilled or unfulfilled, set forth in the Settlement Agreement." Inexplicably, the single media filtration device has still not been installed at the Denton Avenue ponds. The operation of the Embassy Hills plant without installation of the single media filtration device is a violation of the construction permit, which was issued pursuant to the 1987 settlement agreement. The operation of the Embassy Hills plant without installation of the single media filtration device is a violation of the operating permit, which specifically includes the conditions set forth in the Settlement Agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order as follows: An operating permit for the Embassy Hills Subregional Reuse Facility should be granted in accordance with the terms and conditions stipulated by the parties at the hearing of July 7, 1999. An operating permit for the Hudson Subregional Reuse Facility should be granted in accordance with the terms and conditions stipulated by the parties at the hearing of July 7, 1999. The application for general permit to provide for spray irrigation at the Embassy Hills facility on property adjacent to that owned by Marie Cook Matis should be denied. Utilization of the Denton Avenue discharge ponds at the Embassy Hills facility should cease until such time as the County has installed the required single media filtration system. DONE AND ENTERED this 20th day of January, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 the Clerk of the Division of Administrative Hearings this 20th day of January, 2000. COPIES FURNISHED: Charles D. Hinton, Esquire William Deane, Esquire Deane and Hinton, P. A. Post Office Box 7473 St. Petersburg, Florida 33739-7473 Francine M. Ffolkes, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 James Benjamin Harrill, Esquire Figurski and Harrill Suite 350 2435 U.S. Highway 19 Holiday, Florida 34691 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The City has brought this action pursuant to Section 120.56, Florida Statutes, challenging Rules 17-50.015(2)(f) and 17-50.016(2)(f), Florida Administrative Code. Section 120.56(1), Florida Statutes, authorizes any person substantially affected by a rule to seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. The Department has stipulated to the City's standing to maintain this action. 4. Rules 17-50.015(2)(f) and 17-50.016(2)(f) were adopted by the Department pursuant to Sections 403.061, 403.101, 403.1823, 403.1832, 403.1838 and 403.804, Florida Statutes. No disputed issues of material fact exist between the parties.
The Issue Whether Sugarloaf Shores Section C Extension is a "major development" as defined by Section 6-222, Monroe County Code, and (in connection with Intervenor's amended plat proposal and dredge and fill application) should undergo major development review pursuant to Chapter 6, Article VII, Monroe County Code.
Findings Of Fact Sugarloaf Shores Section C Extension is a subdivision located in Section 2, Township 67 South, Range 27 East, Sugarloaf Key, Monroe County, Florida. (Prehearing Stipulation, Para. (e), No. 1). The plat of Sugarloaf Shores Section C Extension, shows 76 residential building lots and five deadend canals (connecting to Upper Sugarloaf Sound or Cross Key Channel) and a canal of approximately 900 feet paralleling the mean high water line of Upper Sugarloaf Sound; it was approved by Monroe County on July 5, 1972, and is recorded in Monroe County Plat Book 6, page 93. The subdivision contains 38.9 plus acres. (Prehearing Stipulation, Para. (e), No. 2; Joint Exhibit No. 1). Lloyd A. Good, Jr., purchased Sugarloaf Shores Section C Extension on October 8, 1973, and is the current owner and developer of the subdivision. (Prehearing Stipulation Para. (e), No. 3). At the time of his purchase, the land had been cleared. An east-west canal of approximately 600' in length and 50' in width had been excavated but unopened to Upper Sugarloaf Sound. A north-south canal or borrow pit of approximately 200' in length and 50' in width had also been excavated. Fill obtained from these excavations had been placed on the property. He subsequently placed approximately 800 yards of additional fill on the Southeast corner of the property. (Testimony of Good) The platted subdivision is landward of the mean high water line and contains a mixture of upland and wetland vegetation. A berm rises along the front of the property between Allamanda Drive and the existing (plugged) canal. The northern part of the property contains white, black, and red mangroves, red grape, a hardwood hammock, and a salt water marsh characterized by key grass, salicornia, and white and black mangroves. The western part of the property contains fresh water wetlands characterized by spike rush. The area south of the existing canal contains more mangroves and is permeated by transitional wetland or fresh water wetland plant species, with the higher elevations containing Lower Keys hardwood hammock species such as poison wood, black tooth and Jamaican dogwood. The salt marsh and black mangroves are subject to inundation from tidal exchange; the fresh water wetlands are subject to rain water flooding. (Testimony of Dennis) In 1973, Lloyd Good was familiar with regulatory restrictions on the use of wetland areas. As a Philadelphia attorney, he had "practiced in wetland areas in New Jersey . . . and . . . knew that the concept of deadend canals at that time was not feasible." (TR.65) He had decided to amend the original plat (and change the development plan) even before he purchased Sugarloaf Shores Section C Extension because he believed that under existing environmental laws the platted deadend canals would not be permitted. (TR.65) So he hired engineers to design a development plan acceptable to the U.S. Army Corps of Engineers and other governmental agencies having regulatory jurisdiction over dredge and fill activities in wetland areas. Because of other business interests, he temporarily halted work on the project between late 1973 and 1975. From 1975 to 1980, he worked with permitting officials from federal, state, and local regulatory agencies in an effort to devise a development plan for Section C Extension which would meet regulatory standards. In 1980, he hired a consultant to obtain the necessary federal, state, and local permits needed to carry out his revised development plan. Monroe County permitting officials told him not to apply for any local dredge and fill, or land clearing permits until he first obtained the required federal and state permits. (Testimony of Good) In 1980, Lloyd Good applied for a joint U.S. Army Corps of Engineers/Florida Department of Environmental Regulation permit to perform the dredging and filling necessary to carry out his revised development plan. In 1983, after extensive negotiation, both agencies issued him the required dredge and fill permits. The Department of Environmental Regulation permit was conditioned on Mr. Good obtaining Monroe County approval of an amended plat of Sugarloaf Shores Section C Extension conforming to the federal and state permits. (Joint Exhibit No. 21, Testimony of Good) During his initial discussions with Monroe County officials in 1981, Lloyd Good proposed rezoning the property to permit multiple-family residences; if rezoned, he expected that the project would be required to undergo "major development" review as defined by the Monroe County Code. But after meeting with members of the Sugarloaf Property Owners Association and discovering that they were violently opposed to multi-family development," (TR.73) he decided to retain the single-family nature of the original development and not seek a zoning change. Monroe County officials told him that by retaining the original zoning his development activities would not be subject to the "major development" review process. (Testimony of Good) On May 10, 1983, Lloyd Good submitted an application to Monroe County for authorization to dredge 42,400 plus/minus cubic yards of submerged lands, wetlands and uplands for roads and fill needed to develop residential lots within the Sugarloaf Shores Subdivision in accordance with his newly revised development plan. His application conformed to the federal and state permits already issued. (Prehearing Stipulation Para. (e) No. 4; Joint Exhibits No. 2 and 6) Mark Robinson, the county biologist assigned to review the dredge and fill application and prepare a biological report, asked Lloyd Good to have the state and federal permits amended to address several of his concerns. Mr. Good obtained the requested permit amendments, then asked that the biological report be completed. (Testimony of Good) On August 25, 1983, Dr. Jeffrey M. Doyle, Director of the Monroe County Planning and Zoning Department, issued an administrative ruling declaring Sugarloaf Shores Section C Extension to be a "major development" under the Monroe County Code. As grounds, he cited Section 6-222(1), which defines a "major development" project as a subdivision containing five acres or more of land or water, and Section 6-222(7)(b), which grants discretionary authority to zoning officials and the County Commission to designate an activity or use as a "major development" project if it "reflects sufficient scope, scale and size to justify its being designated . . . in order to ensure its reasonable implementation, if approved, and its proper review prior to such approval." Under his administrative ruling, the dredge and fill application would be subject to the comprehensive review procedures which apply to "major developments." (Joint Exhibit Nos. 32, 5) On September 21, 1983, Lloyd Good appealed Dr. Doyle's administrative ruling to the Monroe County Board of Adjustment. The issue before the Board of Adjustment (and subsequently before the County Commission) was whether Mr. Good's proposed dredge and fill activity (for the purpose of constructing the revised subdivision) was a "major development" as defined by the Monroe County Code, and whether compliance with "major development" review procedures was required before county dredge and fill permits could be issued. (Prehearing Stipulation, Para. (e) No. 6; Joint Exhibit No. 8). On November 2, 1983, the Monroe County Board of Adjustment upheld Dr. Doyle's decision and determined that the Section C Extension subdivision (to be created by the dredging and filling) was a "major development" under Chapter 6- 222(7)(b), Monroe County Code. (Prehearing Stipulation, Para. (e) No. 7; Joint Exhibits No. 11 and 12). On November 23, 1983, Lloyd Good appealed the Board of Adjustment's decision to the County Commission. (Prehearing Stipulation, Para. (e) No. 8; Joint Exhibit No. 13). On January 27, 1984, the County Commission, sitting as the Board of Appeals, adopted Resolution No. 042-1984, reversing the Board of Adjustment's decision of November 2, 1983. The resolution (giving no specific reasons for the reversal) remanded the matter to the County Planning and Building Department for normal processing of the related dredge and fill permits. It did not grant or deny any development or dredge and fill permit; it simply ordered that Lloyd Good's dredge and fill application would be reviewed under normal permitting procedures, not the more comprehensive procedures applicable to "major development" projects. (Prehearing Stipulation, Para. (e), No. 9; Joint Exhibit No. 14) The DCA did not appeal this resolution to a circuit court (within 30 days of its adoption) or to the FLAWAC (within 45 days of its transmission). The DCA did not challenge or question the County Commission's decision (that the proposed dredge and fill activities would not undergo "major development review") until it appealed the Commission's subsequent resolution granting the dredge and fill permit. (Testimony of Good, Dennis) On June 4, 1984, Lloyd Good submitted to the Monroe County Building Department 13 copies of a proposed amended plat for the Sugarloaf Shores Section C Extension. The amended plat incorporated his new development plan and reflected the dredging and filling approved by state and federal permits. (Prehearing Stipulation, Para. (e), No. 10; Joint Exhibit Nos. 18 and 21). On July 13, 1984, the County Commission adopted Resolution No. 195- 1984 approving Lloyd Good's application to dredge and fill. The resolution was transmitted to the DCA on July 27, 1984, which appealed it to the FLAWAC by notice filed September 10, 1984. 1/ The appealed resolution directs that the applied-for permit be issued subject to Lloyd Good's subsequent filing of an amendment to the Sugarloaf Shores Section C Extension plat. (Prehearing Stipulation, Para. (e), Joint Exhibit No. 19) Thereafter, on September 7, 1984, the County Commission adopted Resolution No. 224-1984, approving an "Amended Plat for Sugarloaf Shores Section C Extension." The DCA also appealed this resolution to FLAWAC by separate notice filed October 31, 1984. (Prehearing Stipulation, Para. (e), No. 12; Joint Exhibit Nos. 21, 22) The amended plat approved by Resolution No. 224-1984, replaces the original plat with a fundamentally new and different development plan. It alters the location of roads; eliminates the proposed deadend canals (except for the existing "plugged" canal); provides for wetland preservation areas in Tracts A, B, C, D, and F, and for the construction of a six-acre boat basin fronting the property on Upper Sugarloaf Sound; and reduces the number of single family residential lots from 76 to 55. RU-1 zoning is retained. The new development plan is preferable to the original plan in terms of environmental impact. The amended plat was processed in the same manner as all new plats in Monroe County. (Joint Exhibits No. 1, 21; Testimony of Dennis) The record is devoid of any documented expenditures made by Lloyd Good in reliance on County Commission approval of the original or amended plat.
Recommendation Based on the foregoing it is RECOMMENDED that pursuant to Section 380.07(4), Florida Statutes (1983), the Florida Land and Water Adjudicatory Commission enter an order: Reversing Resolution Nos. 195-1984 and 224-1984, because these resolutions approved development activities prior to their undergoing the "major development" review required by Section 6-222(1) and (6), Monroe County Code, as incorporated by Rules 27F-9.06 and 27F-9.17, Florida Administrative Code; Declaring the proposed Sugarloaf Shores Section C Extension a "major development" within the meaning of Section 6-222(1) and (6), Monroe County Code, and requiring the two development activities which would create it to undergo "major development" review prior to any approval; and Declaring that after undergoing the required "major development" review, these development activities would be eligible for approval, but that the disposition of the appeals in the instant cases does not reach the substantive issue of whether the proposed development should ultimately be approved, or disapproved. See, Section 380.08(3), Florida Statutes (1983). DONE and ORDERED this 21st day of January, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. 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 21st day of January, 1986.
The Issue Whether Petitioner’s application for a variance to permit an onsite treatment and disposal system should be approved.
Findings Of Fact The lot of land for which the Bank seeks a variance for an onsite sewage treatment and disposal system is located at 341 Compass Lake Drive in Jackson County, Florida. The lot is approximately 40 feet wide and 300 feet deep, with approximately 40 feet of frontage on Compass Lake. Prior to its severance in 2010, the lot was part of a larger parcel of land with an address of 343 Compass Drive in Jackson County. The larger parcel was owned by Charles Paulk and had substantial improvements consisting of a house, boathouse, and dock. In 2004, Mr. Paulk borrowed money from the Bank and gave the Bank a mortgage lien on the entire larger parcel to secure the loan. At some point, a survey was prepared which subdivided the larger parcel into two lots -- the first containing the substantial improvements, and the other consisting of the approximately 40-foot by 300-foot lot at issue, which is .28 acres in size, with no improvements. There is no indication that the survey was ever recorded in the public records. Later, in 2010, Mr. Paulk decided to sell the lot with the substantial improvements for $330,000. Because the Bank had a lien on the entire larger parcel, Mr. Paulk requested that the Bank release its lien on the lot with the substantial improvements. The Bank agreed to release its lien on the lot with substantial improvements and, after receiving what the Bank felt was a “sufficient pay-down” on the loan, shifted its lien to the smaller, unimproved lot that is at issue in this case. The sale and release of lien transaction “substantially reduced the loan versus the collateral value” that the Bank previously had. According to the Bank’s Senior Vice President, James Goodson, after the sale transaction, there was “not a lot of money left on the loan ” Mr. Goodson testified that, at the time that the Bank agreed to release its lien on the substantially improved lot and shift its lien to the remaining unimproved lot, it was unaware that a variance would be required for an onsite sewage treatment and disposal system (septic tank) on the unimproved lot. The facts as outlined above, however, demonstrate that the Bank was an active participant and beneficiary of the transaction that ultimately resulted in the creation of the two lots, one of which was the approximately 40-foot by 300-foot unimproved lot at issue in this case. In 2012, Mr. Paulk experienced financial problems and was having difficulty paying back the loan to the Bank secured by the unimproved lot. Because it was easier than foreclosure, the Bank agreed to take a deed to the unimproved lot in lieu of foreclosure.1/ At the time of the Bank’s release of lien in 2010, as well as at the time of the deed in lieu of foreclosure, the 40- foot by 300-foot lot size of the unimproved lot was too small to meet the statutory requirements for a septic permit. Mr. Goodson testified that, at the time that the Bank accepted the deed in lieu of foreclosure, the Bank was aware that the lot was too small and would need a variance for a septic tank. He did not explain, however, why the Bank had earlier been unaware of the need for a variance when it agreed to release its lien on the substantially improved lot in 2010. After the Bank acquired title to the unimproved lot, a third party offered to purchase it on the condition that the Bank could obtain a permit. The Bank went to Jackson County to request a permit, knowing that its request would be denied because the lot size was insufficient for a septic tank without a variance. Nevertheless, the Bank believed that it would qualify for a variance on hardship grounds because it did not “intentionally” create the hardship. The Bank commenced the permitting process by submitting an application with the Jackson County Health Department on October 4, 2012. The County denied the application on the grounds that the lot was deficient in width and total area. Next, the Bank submitted a request to the Department for a variance. The request was considered by the Department’s Variance Review and Advisory Committee (Committee) on December 6, 2012. The Committee has only recommending authority to the State Health Officer. In a four to three vote, the Committee recommended approval of a variance. The members voting against a recommendation for approval were representatives of the State Health Office, the Department of Environmental Protection, and the County Health Department. Eight objections from adjacent property owners were provided to the Committee’s review and consideration. After considering the facts, including the decision of the County Health Department, objections filed by adjacent property owners, actions taken by the Bank, and the recommendations of all the members of the Committee, Gerald Briggs, Bureau Chief for Onsite Sewage Programs for the Department of Health, made the Department’s preliminary decision that the Bank’s variance request should be denied, concluding, among other things, that “[a]ny perceived hardship that [the Bank] might experience as a result of the obligation to meet established standards comes about as a direct result of your own proposed action.” Likewise, considering the facts and evidence as presented in this case, the undersigned finds, as a matter of fact, that the Bank intentionally participated in and benefitted from the transaction that resulted in the hardship posed by the small lot size that it now owns and for which it seeks a variance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying SunSouth Bank’s application for a variance. DONE AND ENTERED this 21st day of March, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2014.
Findings Of Fact Stella Neville, Inc. (Neville) is the owner of a 4.5 acre tract of land which abuts State Road (SR)905 on north Key Largo, Monroe County, Florida. On June 21, 1985, Monroe County entered a development order approving Neville's amended permit application to excavate and mine coral rock from its property. The Department, pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Adjudicatory Commission. The Subject Property: The Neville property is located in that portion of Monroe County designated as an area of critical state concern, Section 380.0552, Florida Statutes, and is part of a tropical hardwood hammock which extends several miles north and a substantial distance south on either side of SR 905. To the immediate east, south and west of the Neville property, however, there has been some man-induced alteration of the topography. The Neville site is bounded on the east by SR 905;2 on the southwest by a 9-acre tract owned by Keystone Products, Inc. (Keystone), which is currently being quarried for coral rock; and to the west by a 60-acre trace of land, known as the "West Cappeletti Pit", which contains a large abandoned borrow pit dug to depths of up to 60 feet. With the exception of the west Cappeletti Pit and the Keystone quarry, the area west of US 9052 stands predominately undisturbed by humans. About 1970, however, the Neville property was disturbed by fire. Consequently, the tropical hardwood hammock community is presently characteristic of a successional hammock, as opposed to a mature hammock, with a dense understory of immature trees3 On site vegetation includes: Jamica Dogwood, Gumbo Limbo, Poisonwood, Spanish Stomper, Wild Lime, Bamboo, Lancawood, Crabwood, and Mahogany. While the successional hammock, which occupies the Neville site, may not be considered as rare or unique because it has not yet reached maturity, it does provide needed habitat for the fauna of the area. The Key Largo Woodrat, an endangered species, inhabits the Neville site notwithstanding its preference for mature hardwood hammocks. Several active Key Largo Woodrat stick nests have been located on the site; with one located approximately 125 feet from the proposed quarry area. The site also provides habitat for the indigo snake, a threatened species, observed on site. The Neville Application: Neville's revised application, dated February 27, 1985, sought authorization from Monroe County to mine coral rock from the westerly 1.6 acres of its 4.5-acre tract to create a lake.4 Neville proposed to mine the rock to a depth of -10' MLW (mean low water) by use of a trenching machine capable of cutting block 3' square and 8' deep; no dynamiting would be necessary under Neville's proposal. At hearing, Neville agreed to limit the depth of its excavation to -8' MLW to ensure good sunlight penetration and, consequently, good water quality. The quarry proposed by Neville would measure 300' x 232'; contain a safety shelf 3' wide around the perimeter of the quarry at a depth of -1' MLW; and be bermed to a height of 1' above grade to prevent storm water runoff from entering the quarry's waters. Dug as proposed, the quarry would result in the removal of 39,000 cubic yards of coral rock. Neville does not, itself, propose to mine the property. Neville's application was filed by its ''agent" Keystone, which is currently mining the property which abuts Nevilles'. Keystone, as lessee, proposes to cut the blocks from the Neville site and truck them to its plant in Florida City where they would be custom cut to provide a coral rock veneer construction material. Monroe County's Approval: At a regular meeting of the Monroe County Board of County Commissioners on June 21, 1985, Monroe County approved Neville's revised application conditioned upon: . . . the full restoration of the property as outlined; that at the time of the restoration period, the County would be contacted and have the option of using this as a site for disposal of materials, that bonding of half the amount of the value of the fill that it would take to fill in the excavation site would be required, that the site would be mined in such a way that the second half of the proposed mine could not be mined until the first half was restored; that all endangered species taking permits or other State or Federal permits would be had before this was allowed to proceed, and that no more than three years after completion of the excavation, the site will be totally restored or the bond will be forfeited.5 Areas of Concern: The Department's appeal charged that the proposed project was a non-permitted use under Monroe County's GU-general use district, Section 19-180 Monroe County Code (MCC); that the permitting of the subject mine was contrary to Section 19-ill(b), MCC, Excavation and Mining Activities, because of the alteration of hydrologic regime, violation of water quality standards, destruction of tropical hardwood hammock, and disturbance of endangered species; that the proposed project was contrary to Sections 18-18, 18-19, 18-21, and 18-23, MCC, because no land clearing permit was received and the project would adversely impact natural resources, scenic amenities, water quality, and tropical hardwood hammock; and, that the proposed project was contrary to the Monroe County Comprehensive Plan, Coastal Zone Protection and Conservation Element, Chapter 4, because it failed to minimize the destruction of natural vegetation or to demonstrate special protective efforts for endangered species. Notwithstanding the Department 's charges, no party offered any part of the Monroe County Code or the Monroe County Comprehensive Plan in evidence. Therefore, only those portions of the Monroe County Code contained in paragraphs 7-9 of the Department's petition, which were admitted by Neville, are a part of the record in this case. The Neville property is zoned GU-general use. Section 19-180, MCC, provides: No land, body of water and/or no structure shall be used or permitted to be used, . in any zone of classification GU- general, which is designated, arranged or intended to be used or occupied for any purpose, except for one or more of the following uses, unless otherwise provided: Single family dwellings with their customary accessory uses. Agriculture uses. Clubs, including country, golf, gun and fish clubs or similar enterprises, and ranges. (4) Athletic fields and stadiums. (5) Power plants and sub-stations, water pumping stations, television, and radio transmission towers. (6) Fishing camps on isolated islands. Churches (two (2) acres). Horses: Horses may be kept only id a GU zone, on a minimum of one (1) acre. The area must be fenced, property drained and if a stable or other structure exists on the property it must meet all the building and setback regulations of Monroe County. Cemeteries, including crematories and mausoleums on a minimum of five (5) acres. An area of land set apart for the sole purpose of the interment of the remains of deceased persons and for the erection of customary markets [markers], monuments, and mausoleums. Monuments recognizing persons or points of historical interest (two (2) acres). And, Section 19-109, MCC, Interpretation of Permitted Uses, provides: In the administration and enforcement of this ordinance all uses not expressly permitted in any district are otherwise prohibited. Neville argues that simply because its property is zoned GU does not preclude issuance of the subject permit because excavation and mining activities within Monroe County are not restricted by zoning classification. To support its position, Neville asserts that the provisions of the Monroe County Code which establish the criteria for evaluating applications for excavation and mining permits do not require any specific zoning category, and that Monroe County has interpreted its code to allow excavation and mining activities in all zoning classifications. The record does not support Neville's assertion. The only part of the Monroe County Code dealing with excavation and mining permits of record in this proceeding is the following portion of Section 19-111, MCC: (b) Excavation and Mining Activities * * * Upland permit application. Application for a permit to excavate within upland areas, as defined above, with a proposed volume greater than one thousand (1,000) cubic yards shall be approved or denied by the board of county commissioners . Consideration, will be given to the county staff's comments and reports which will account for the effects to the natural biological functions and communities within the proposed site, and to the physical aspects of drainage and water quality within the proposed area of excavation. Mining permit application. Applications for a permit to conduct mining operations within Monroe County shall adhere to the following: * * * (b) A topographic map of the area signed by a professional engineer or land surveyor shall be submitted. (Emphasis added) From the foregoing provision, the conclusion cannot be drawn that excavation and mining activities may be permitted without regard for the zoning classification of the property. The only evidence of record that Monroe County may interpret its code as permitting excavation and mining activities in a GU-zone is the fact that the properties encompassed by the West Cappeletti Pit and the Keystone quarry are currently zoned GU.6 There is no evidence, however, which would demonstrate when those activities were permitted and what zoning ordinances or classifications were in effect when permitted. Accordingly' the existence of such quarries does not support Neville's contention. With the exception of the matters discussed in paragraphs 14 and 15, supra, Neville presented no evidence that Monroe County permitted mining and excavation in any zoning category or that Monroe County interpreted its code to permit such activities. Based on the evidence presented, Neville has failed to establish that its proposed mining and excavation activity is consistent with the land development regulations applicable to this case. In light of the foregoing conclusion, it is unnecessary to pass upon the impacts of the proposed project on the area's hydrologic regime, water quality, tropical hardwood hammocks, endangered species, or to evaluate Neville's mitigation proposals.
The Issue The issues in this case are: Whether Respondent, St. Joseph Garden Courts, Inc. ("Garden Courts"), discriminated against Petitioner, Lillian Craig ("Craig"), on the basis of her race (Caucasian) in violation of the Florida Fair Housing Act; and Whether Gardens Courts retaliated against Craig when she filed a discrimination claim.
Findings Of Fact Craig is an elderly Caucasian woman, who at all times material hereto resided at Garden Courts. Garden Courts is a federally-funded, multi-unit housing project that provides housing to elderly and lower income individuals under Section 202 of the Housing Act of 1959, as amended. On February 27, 2009, Craig entered into a "202 Project Rental Assistance Contract" (the "Lease") with Garden Courts. Craig agreed to lease Unit 311 for the sum of $465.00 per month, plus $60.00 per month for utility services. Craig agreed to abide by all terms and conditions of the Lease, including the Rules and Regulations attached thereto as an addendum. The Rules and Regulations attachment contains the following provision at paragraph 30: Authorized personnel will enter the apartment periodically for routine inspections, maintenance replacement/repairs, and pest control. Routine inspections, as required by HUD, are conducted to determine the condition of the dwelling unit, that the unit is decent, safe and sanitary, and in good physical condition. Inspections may reveal possible lease violations. Photographs will be taken if determined necessary. Any lease violations found during these inspections may result in termination of tenancy. On October 10, 2010, Garden Courts conducted a routine housekeeping and maintenance inspection of Unit 311. Mott, as property manager, headed up the inspection. Mott used a form checklist consistent with Department of Housing and Urban Development (HUD) guidelines for the inspection. Inspections of several other units were performed on the same day. The inspections were conducted by Mott with the assistance of Rudy (last name not provided), the maintenance director. Generally, Mott would inspect the kitchen and bathroom, while Rudy inspected the bedroom(s). Inspections were performed to assure cleanliness, orderliness, and compliance with all safety requirements. Upon inspection of Unit 311, Mott determined that there was one minor deficiency, a dirty stovetop, and one major problem, a fire hazard in the bedroom. The apartment was deemed free of roaches and vermin, free of trash and garbage, and in a "fair" state of cleanliness. Photographs were taken on the unit to document the major deficiency. The situation causing a major fire safety problem in the unit was that Craig had boxes and furniture stacked up in the bedroom which blocked the outside window. Inasmuch as there need to be two methods of ingress/egress for each room, the boxes illegally blocked one of the escape routes. The boxes also were stacked so high that the inspectors could not reach the smoke detector to determine whether it was functional. Further, the boxes blocked the electrical outlets so that they could not be tested. The fact that the boxes contained lots of paper was a concern to Garden Courts due to the possibility of fire. Due to the deficiencies, a follow-up inspection had to be scheduled. Garden Courts usually asked the tenant whether he or she wanted the re-inspection to occur within 15 days or 30 days. In this case, Craig asked for some time to rectify the problem and requested re-inspection a month later. Garden Courts honored her request and scheduled a re-inspection for the unit on September 10, 2010, one month after the initial inspection. Craig was advised by Mott that the boxes and furniture in the bedroom were the cause of Craig's apartment not passing the inspection. There is no credible evidence that Mott told Craig to move the boxes or face eviction. The best evidence is that Craig understood the need to move the boxes and volunteered to do so if she was afforded ample time. When Mott came back to re-inspect the unit a month later, the boxes had been moved. Craig claims she was treated differently from other tenants during her inspection. On the same date that Unit 311 was initially inspected, Mott and Rudy also inspected Units 210, 217, 306, 325, 119, and 116. The tenants of each of those units were Hispanic. Craig asserts that she was treated differently, because she was not Hispanic. That is, Unit 116 also had an issue relating to stacks of boxes, but Mott did not take a picture of that apartment. According to Mott, that was because the other unit was not, in her opinion, as severe a problem as Craig's unit. Each of the Hispanic tenants was given two weeks to a month to correct his or her cited deficiencies, depending on the nature and severity of the issues. Craig was allowed one full month to correct her deficiencies. The tenant of Unit 116 was ultimately given additional time to move the boxes in her apartment due to her physical condition. That tenant asked for and received additional time; Craig did not ask for additional time, because she was able to move her boxes before the scheduled re-inspection. Shortly after the re-inspection, Craig contacted the Jacksonville HUD office to complain about her treatment by Mott. Craig actually filed a Housing Discrimination Complaint with HUD, alleging discrimination based upon her race, Caucasian. HUD notified Mott about the complaint and asked Mott to speak to Craig about the allegations. Mott then tried to contact Craig to discuss the complaint. However, the phone number Mott had for Craig did not have a voice mailbox set up, so Mott was not able to leave Craig a message. On September 15, 2010, Craig returned to Garden Courts after doing some grocery shopping. As she walked through the lobby, Mott asked her to stop and talk for a moment concerning the HUD complaint. Craig indicated that she could not talk at that time because she had to get her groceries put away. Mott told Craig that attempts to leave Craig a message on her cell phone were thwarted due to the fact that the message box had not yet been set up. Craig disputed that statement, saying that she was receiving messages from other people. Craig says that Mott grabbed her arm and yelled at her. Mott remembers only speaking to Craig in a normal tone of voice and requesting a meeting. There is no persuasive evidence as to how the conversation actually occurred. Mott awaited a return call or visit from Craig for a few hours, then drafted a letter to Craig when there was no further contact. The letter again asked Craig to contact Mott to discuss the HUD complaint. The letter included the cell phone number that Mott had on file for Craig and asked Craig to contact Mott by the end of the following day. Craig, however, was apparently unwilling to talk with Mott on her own, so she went to speak with an attorney, rather than contacting Mott. There is no indication that Mott and Craig ever had a meaningful discussion between themselves about the fire hazard issue. At some point in time, a meeting was held that both Mott and Craig, along with legal counsel, attended. However, the results of that meeting are not in evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Lillian Craig in its entirety. DONE AND ENTERED this 13th day of July, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2011.
The Issue Whether Bay North Corporation should be issued a permit to construct a domestic wastewater treatment and disposal system at Camp Weed, Franklin County, Florida, pursuant to Chapter 403, Florida Statutes.
Findings Of Fact On February 27, 1978, Lomax Smith, a builder and developer in Tallahassee, Florida, entered into an agreement with the Protestant Episcopal Church in the Diocese of Florida to purchase some 42 acres of real property and the improvements thereon known as "Camp Weed" which is located in Franklin County, Florida. The purchase price of the property was $725,000, with an earnest money deposit of $20,000, and closing of the transaction to be on or before July 1, 1978. At the time of purchase, eight dormitory and several accessory buildings were located on the property which utilized septic tanks for sewage disposal. An existing deep well is in the northwest portion of the property for a water supply. Smith proposed to develop the property by the sale of lots, remodel some of the existing buildings, and construct new housing units. He employed the engineering firm of Broward Davis and Associates, Inc., Tallahassee, Florida, to prepare the necessary design plans and a state environmental permit application for a proposed domestic wastewater treatment plant to be located on the site. (Testimony of L. Smith, N. Smith, Exhibits 12, 13) On September 6, 1978, Smith filed an application with Respondent Department of Environmental Regulation (DER) for a permit to construct the sewage treatment plant (STP) at Camp Weed. He signed the application as owner of the property although he had not closed the purchase transaction nor acquired legal title at that time. The application and supporting plans were reviewed in the Northwest District Office of the Department of Environmental Regulation after site investigation, and it was determined that construction of the facility would be in accordance with applicable laws and regulations. A construction permit was issued to Smith for the STP on October 10, 1978, subject to certain specified conditions attached to the permit. Notification of the permit issuance was not preceded by a notice of intent to grant the permit, nor were any third parties advised of its issuance. Petitioners St. Teresa Dock Association, Inc. (then St. Teresa Dock Association) and H.S. Oven first learned of the permit issuance when their counsel was informed by Smith's counsel on November 3, 1978, that the permit had been issued. Petitioners thereafter on November 17 filed a petition for hearing with DER. (Testimony of L. Smith, Huff, Exhibits 1, 4-5, 8) Camp Weed is bounded on the north by U.S. Highway 98 and on the south by the Gulf of Mexico. The planned site for the STP is in the northeast corner of the tract which is some twelve feet above mean sea level and approximately 950 feet from the shoreline. The elevation of the property on the northwestern side is about 24 feet and is five feet in the middle. The land slopes generally toward the middle area and drains in a southerly direction to the gulf. The subdivision of St. Teresa where Petitioners' members own summer homes is located immediately west of Camp Weed. The members of the St. Teresa Dock Association, Inc., and Petitioner Hamilton S. Oven use the beach and gulf waters for boating, fishing, and other recreational purposes. About a dozen shallow wells in the St. Teresa subdivision provide drinking water for the residents. They are located over 1700 feet southwest from the site of the proposed STP. There are two ponds north of the St. Teresa area adjacent to U.S. Highway 98. An artesian well is located in the gulf about 25 feet south of the Camp Weed property. (Testimony of Huff, N. Smith, Oven, Sensabaugh, Exhibits 2,7, 9-11, 22, 24) The proposed plant is designed to provide sewage treatment for 132 housing units containing an estimated population of 3 persons per unit. A gravity flow collection system to a pumping station will produce a peak influent rate of 29,700 gallons per day with an estimated biological oxygen demand (BOD) loading of 49.6 pounds per day. A basket strainer on the influent line will remove trash. Plant operation will involve the use of aeration tanks, clarifier, chlorination, sand filter and clear well for discharge to a percolation pond. A polishing pond was originally planned, but was deleted at the suggestion of the DER because it performs the same function as the proposed sand filter. Two percolation ponds for alternate use will be construed so that the pond bottom is twelve feet above sea level. A soil test revealed that a sand layer extends under the shallow surface top soil to a depth of approximately 10 feet before reaching the shallow ground water table and that the effluent will percolate through the sand at the rate of one inch per minute. A five foot soil boring by DER failed to encounter ground water at that level and show that rate of percolation through the sand would be acceptable. The ground water table is subject to an unknown variance indepth during the wet and dry seasons of the year depending on the amount of rainfall. Although tide fluctuations may also have some effect on depth of the ground water table, the tide most likely will be of minimum influence due to the distance of the plant site from the gulf. Percolation of at least three feet through sand before reaching ground water is sufficient to meet DER policy requirements. (Testimony of Huff, N. Smith, Bishop, Exhibits 1, 3, 16-17). Based on the design of the STP, it is predicted by applicant's design engineer that there will be at least 90 percent removal of pollutants after chlorination and prior to passage of the effluent through the sand filter. The engineer predicts that after such filtration, there will be approximately 95 percent removal prior to percolation and that the effluent will then be pure enough to use as drinking water. Further purification will take place during the percolation process. The DER District Supervisor of Domestic Wastewater Permitting, who also is a professional engineer, substantially agrees with those predictions. Actual results of the treatment process can be determined, however, only after tests from monitoring wells are made during actual trial operations of the plant. It is further agreed by those experts that the average chlorine residual content in the effluent will be 0.5 parts per million. The DER supervisor therefore is of the opinion that, if the STP is properly operated, the processed effluent will not degrade ground waters, not adversely affect the wells in the St. Teresa Community or the waters of the gulf. After percolation, there is further dilution and ultimately the ground water which reaches the gulf in eight to ten days will be in a purer form than prior to introduction of the effluent. Although a twenty-year storm criterion was applied in the design of the percolation ponds, a catastrophic storm such as a hurricane was not taken into consideration since it would not be economically feasible to design for such an effect and, in any event, super dilution caused by such a storm would negate the possibility of water quality degradation. (Testimony of Huff, N. Smith, Exhibit 1) The buildup of sludge in the plant's holding tank will require removal about once a year when the plant is in full operation. The applicant will employ a certified individual to operate the plant and to remove sludge periodically to an appropriate place for disposal in an authorized manner. DER regards sludge disposal to be a matter for determination at the time application is made for an operating permit. (Testimony of Huff, L. Smith, McNeill, N. Smith, Exhibit 1) The applicant estimates that the construction of the plant and collection system will cost approximately $1,000 per housing unit for a total of $132,000. It is planned to recover this cost on the sale of lots. A condition of such purchases will be that the sewage system and treatment plant will be operated by a home owners association which is to be activated in the near future. Maintenance cost of the sewage plant will be shared by the individual members. Approximately twenty or twenty-five members are required for economical operation of the plant. (Testimony of N. Smith, L. Smith) The county zoning classification for the Camp Weed area is currently the subject of litigation by the applicant in the Franklin County Circuit Court and the result of that litigation as to permitted density of housing will determine the amount of units to be constructed by the applicant. In any event, if the applicant does not secure a county building permit, any DER construction permit would expire at the termination of the time granted therefor. (Testimony of L. Smith, Huff, Exhibit 24) At the time Intervenor Lomax Smith signed the permit application, Bay North Corporation had not been formed. It was incorporated in November, 1978, in order that Smith could obtain financing to complete the property purchase. The transaction was closed November 6, 1978, and a warranty deed to the property was issued to Bay North Corporation by the Episcopal Church in the Diocese of Florida, Inc. The deed was recorded in the public records of Franklin County on November 7, 1978. Lomax Smith is the president and principal stockholder of Bay North Corporation. Promissory notes secured by mortgages to the Southern Bank of Tallahassee and the Episcopal Diocese of Florida in the amounts of $350,000 and $362,500 respectively, were executed by Bay North Corporation on the same date. Pursuant to a request to DER from Lomax Smith on May 15, 1979, the Northwest District DER Office, on June 29, 1979, purported to transfer the permit to Bay North Corporation and extend the expiration date to September 30, 1980. (Testimony of L. Smith, Huff, Exhibits 6, 14-15, 21) The construction permit issued in October, 1978, was subject to standard and special conditions, including the requirement that the permit holder comply with county and municipal regulations prior to construction. They provided that monthly reports be furnished to the DER prior to issuance of an operation permit setting forth wastewater characteristics during a trial period of plant operation. They also required that the facility meet the treatment requirements contained in Chapter 17-3, F.A.C., including a 90 percent reduction in BOD and suspended solids based on concentration of the influent entering the plant. The conditions further provide that at the time of application for an operation permit, it must be shown that a certified operator under Chapter 17- 16, F.A.C., is retained, together with a copy of any contract for contract operation of the facility. Additionally, the conditions require that two monitoring wells be established upstream and downstream of the ponds and that quarterly ground water samples be analyzed and reported to DER. A further condition provides that a three-foot buffer zone must be maintained between the bottom of the percolation ponds and the maximum elevation of the ground water. (Exhibit 8)
Recommendation That the Department of Environmental Regulation issue the requested permit to Bay North Corporation, subject to the conditions attached to the permit issued on October 10, 1978. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of November, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: George E. Lewis, II, Esq. 316 East Park Avenue Tallahassee, FL 32303 William L. Hyde, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Ben H. Wilkinson, Esq. Pennington, Wilkinson, Gary and Dunlap Post Office Box 3875 Tallahassee, FL 32303 Alfred O. Shuler, Esq. Post Office Box 850 Apalachicola, FL 32320
The Issue The issue in this case is whether the Town of Grand Ridge (Grand Ridge) is entitled the Domestic Wastewater Facility Permit that the Department of Environmental Protection intends to issue.
Findings Of Fact The Parties The Department is the agency with the responsibility and authority to regulate the construction and operation of domestic wastewater treatment facilities in Florida. The permit applicant, Town of Grand Ridge, is a municipality in Jackson County. Grand Ridge has a population of approximately 950 persons. Petitioner Quillon Yon is the owner of 95 acres of land contiguous to the site of Grand Ridge's proposed wastewater treatment plant and sprayfield. He resides on this property half of each year. He grows Pensacola Bahia grass as pasturage for about 40 head of cattle. The rest of the property is forested. There are potable water wells on the property. Petitioners are co-owners of about 20 acres adjacent to Ocheesee Pond which is east of the project site. Part of the property is used to grow Coastal Bermuda grass as hay. Petitioners fish on Ocheesee Pond. The Proposed Project and Project Site The challenged Department permit authorizes Grand Ridge to construct and operate an "extended aeration secondary treatment domestic wastewater treatment plant consisting of flow equalization, influent screening, comminution, grit removal, aeration, secondary clarification, and chlorination." The permit also authorizes Grand Ridge to construct and operate a slow-rate, restricted public access, land application system (sprayfield). The treatment plant and sprayfield would be constructed on a 475-acre site owned by Grand Ridge and located within the town limits. The wastewater treatment plant would be constructed in the approximate middle of the site. The sprayfield would be located in the southern portion of the site. The northern portion of the site would remain in its natural condition. The land uses surrounding the proposed project site are mostly agriculture, consisting of row crops, hayfields, vegetables, and cattle operations. Ocheesee Pond is a natural waterbody located about 3,000 feet to the east of the project site. Dickson Bay is a natural waterbody located 1,500 to 2,500 feet south of the project site. There are other wetlands and unnamed surface waters near the project site. The treatment plant would have the capacity to treat an annual average daily flow of 205,000 gallons of domestic wastewater. This design capacity would accommodate the projected population growth of Grand Ridge through 2028. The treatment plant is designed to meet Class 1 Reliability standards as established by the EPA. Class 1 Reliability relates primarily to the provision of backup systems throughout the treatment plant, such as electrical power sources, pumps, holding ponds, and treatment processes, which give greater assurance that the facility will remain operational in the event of system failures. Grand Ridge provided reasonable assurance that the treatment plant would meet all the design and operational standards applicable to domestic wastewater treatment plants of this type. The treatment plant would be located a minimum of 1,600 feet away from any of the project site boundaries. The only part of the plant that might produce objectionable odor is near the "headworks" where the sewage comes in from the collection system. Based on the location of the treatment plant on the project site and the odor control measures to be utilized, Grand Ridge provided reasonable assurance that the proposed project would not create objectionable odors so as to create a nuisance to persons residing near the project site. After the wastewater is treated, it would be stored in two above-ground storage ponds until it is pumped to the sprayfield. The ponds would be lined with a high-density polyethylene liner. The ponds would hold ten days of wastewater flow at the average daily flow rate. Under the Department's rules, only three days of storage capacity is required. Grand Ridge provided reasonable assurance that the storage ponds would prevent wastewater from being released even during unusually heavy rainfall or rainfall of unusually long duration and that all other standards applicable to wastewater storage would be met. Grand Ridge originally proposed a sprayfield of 168 acres. The proposed sprayfield was later reduced to 106 acres and generally occupies the relatively flatter terrain within the original 168 acres. The rest of the 62 acres that had been part of the originally proposed sprayfield are now proposed to be left in their natural vegetation. A portion of the wastewater sprayed onto the sprayfield would be taken up by the grasses grown there for that purpose, and the balance of the wastewater would percolate through the soil to the groundwater. Because the wastewater is treated and returned to the groundwater in this process, it is also referred to as reclaimed water. The project is not designed to have a direct discharge to ground or surface waters. Soils at the Project Site The Jackson County Soil Survey indicates that the predominant soil types at the proposed sprayfield are Dothan loamy sands and Fuquay coarse sands. Ninety-five percent of the soils in area of the proposed sprayfield are defined in the soil survey as being well-drained, meaning that water readily percolates down through them. Because the soils are well- drained, they are generally suitable for a sprayfield. Hand auger soil borings were taken throughout the proposed site to determine the thickness of the sandy soils that begin at the ground surface. The thickness of the sandy soils determines their capacity to store water. The thickness of the sandy soils is greatest in the southern portion of the proposed site where the sprayfield would be located, with an average of about two feet. Six deeper soil borings were made, ranging in depth from 70 to 80 feet. Each of the deeper borings showed that beneath the sandy soils exists a thicker layer of clayey sands. Beneath the clayey sands is a confining layer of highly plastic (almost impermeable) clay. Below the clay is limestone. Four double ring infiltrometer field tests were conducted to determine the vertical infiltration rate of water through the soils. The tests showed an average infiltration rate in the area of the proposed sprayfield of 4.5 inches per hour. This is a good infiltration rate for a sprayfield. Wastewater percolating downward through the soil would reach the confining layer of clay and then move horizontally along the clay layer. "Slug tests" were conducted to determine the horizontal conductivity of the soils. The average horizontal conductivity was determined to be 0.06 feet per day, which was characterized by a geotechnical engineer as "fairly slow." Permeability tests in a laboratory were performed on the clay layer to determine how long it would take water to move through the clay. The permeability of the clay layer was .00008 feet per day. At the thinnest clay layer (9 feet thick), it would take approximately 189 years for treated wastewater applied to the sprayfield to penetrate through the clay to the underlying limestone. The project site is not a recharge area for the Floridan aquifer due to the clay confining layer beneath the site. The soils in the area of the proposed storage ponds are stable and suitable for the construction of the proposed ponds. In conducting the evaluation of the soils on the project site, Grand Ridge's consultants found a few depressions, but no sinkholes or other "karst" features. A karst feature is a sinkhole or other geologic form which indicates exposed limestone or the presence of limestone near the ground surface. Groundwater Five piezometers were installed at the site at depths from 68 to 75 feet to determine the depth of the groundwater and the direction of the groundwater flow. Groundwater was encountered at depths between 18.9 to 68.8 feet below the surface. The direction of groundwater flow beneath the proposed sprayfield was determined to be generally east and southeast. A "mounding" analysis, using a computer model, was conducted to predict how groundwater levels would be affected by the application of treated wastewater to the sprayfield. The main purpose of the analysis was to determine whether treated wastewater could be applied to the sprayfield without causing ponding of water on the surface of the sprayfield. The permit contains a condition that prohibits surface runoff or ponding of the applied reclaimed water. Several conservative assumptions were used in the mounding analysis. It assumed a perched groundwater condition beneath the proposed sprayfield, because the Jackson County Soil Survey indicated that the soils found there are indicative of the presence of perched groundwater for part of the year. Perched groundwater is a situation where a soil layer of low permeability will cause groundwater to perch for a time before it moves downward. Although the soil survey indicated that the perched water condition might exist for three to four months a year, the computer model used in the mounding analysis was run with the assumption that the perched water condition was present year round. Another conservative assumption used in the mounding analysis was an average annual rainfall amount of 64.9 inches. The historic annual rainfall for the area is approximately 55 inches per year. Another conservative assumption used in the mounding analysis was an infiltration rate of 3.5 inches per hour. That was the average infiltration rate computed from the five piezometers, but the piezometers in the area of the proposed sprayfield showed an average infiltration rate of 4.5 inches per hour. Using these conservative assumptions, the mounding analysis showed the sprayfield could absorb 2.75 inches per hour without ponding. Therefore, Grand Ridge provided reasonable assurance that mounding would not occur at the permitted application rate of 0.5 inches per acre, per week. Sprayfield Operation Grand Ridge's proposal to reduce the proposed sprayfield from 168 acres to 106 acres did not affect the permitted application rate of 0.5 inches per week, per week. However, the permitted wastewater volume of .308 million gallons per day (mgd) would have to be reduced to .205 mgd to correspond with the reduction in the size of the sprayfield. Grand Ridge agreed to this modification. The sprayfield would be divided into seven zones that could be operated independently. It is Grand Ridge's general plan to rotate from one zone to another through the week, spraying 0.5 inches per acre each day. That is likely to require spraying for two to three hours each day. Because each of the seven sprayfield zones would only be sprayed once each week, this method of operation would meet the permit condition of 0.5 inches per week, per week. The spray nozzles along the boundary of the sprayfield would be installed and operated to spray only inward, toward the sprayfield. Florida Administrative Code Rule 62-610.421(2) requires a 100-foot setback from the property line to the wetted area of the sprayfield, unless the setback is vegetated with trees or shrubs that create a visual barrier, in which case the required setback is 50 feet. Grand Ridge proposes an 80-foot buffer zone around the wetted area of the sprayfield and, beyond this zone, an additional 100-foot vegetated buffer, consisting partly of thickly-planted yellow pine trees. The total buffer from the wetted area of the sprayfield to the property boundaries would be 180 feet. Because of the extensive buffers around the proposed sprayfield, including forested areas, Grand Ridge provided reasonable assurance that any aerosol drift from the sprayfield would not move off the project site. The sprayfield would not be operated when it is raining at the project site. Furthermore, because the permit does not require a treatment plant operator to be on the site at all times, Grand Ridge proposes to install rain sensors that would automatically shut down the sprinklers when the sensors detect rain. The sprinklers would have to be restarted manually. During the shut-down, treated effluent would remain in the storage ponds. Grand Ridge has proposed to add a condition to the permit that prohibits the operation of the sprayfield sooner than four hours after a rainfall event. The sprayfield would be located at least 100 feet from the wetlands on the project site. The spray nozzles would direct spray away from the wetlands. Grand Ridge also proposes to construct a one-foot-high earthen berm around the wetlands nearest the sprayfield to direct any surface flow of rainwater away from them. The Crops Grand Ridge proposes to plant Coastal Bermuda grass in the summer and rye grass in the winter on the sprayfield. These crops were chosen for their high nitrogen uptake, high water uptake, and moisture tolerance. The amount of nitrogen that would be applied to the sprayfield as a component of the treated wastewater is about 120 pounds per acre, per year when the treatment plant is at full capacity. This is less than the amount of nitrogen generally recommended for the fertilization of Coastal Bermuda and rye grasses. Therefore, Grand Ridge might need to occasionally apply supplemental nitrogen to fertilize the grasses. Grand Ridge proposes to limit its application of supplemental nitrogen to only the amount necessary to maintain the crops, but never more than 200 pounds per acre, per year.1 The Town of Sneads, approximately five miles east of Grand Ridge, grows Coastal Bermuda grass on its sprayfield. The operator of the Sneads sprayfield said that the Coastal Bermuda grass has done well without the need to apply supplemental nitrogen. Petitioners grow Coastal Bermuda on their property near Ocheesee Pond. Any supplemental nitrogen applied to the crops would be applied in split applications that will not exceed 40 pounds per acre at a time. The supplemental nitrogen would be applied just before spraying, which would help to release the nitrogen into the soil. The total nitrogen in the wastewater and in the supplemental nitrogen fertilizer that would be applied to the grasses is less than the amount of nitrogen these grasses are generally able to take up. Even though it is reasonable to expect that some nitrogen will percolate past the root zone of the grasses before it can be taken up by the plants, only a small fraction of the nitrogen would likely percolate through the soils and reach the ground water beneath the sprayfield. Department rules provide for a "zone of discharge" for a sprayfield that extends horizontally 100 feet from the wetted area of the sprayfield or to the facility's property line, whichever distance is smaller. Groundwater quality standards must be met beyond the zone of discharge. In this case, the 100-foot zone of discharge would be applicable. Grand Ridge provided reasonable assurance that nitrogen in the groundwater would not reach concentrations that exceed the state groundwater quality standard beyond the zone of discharge. Monitoring There are to be six groundwater monitoring wells on the proposed site which would be sampled quarterly for compliance with groundwater quality standards. Samples would be taken from these wells before the sprayfield is placed in operation to establish the background quality of the groundwater. The proposed placement of the groundwater monitoring wells was determined by Grand Ridge in consultation with the Department staff and takes into account the direction of groundwater movement. The monitoring plan is reasonably designed to intercept and determine the concentration of nitrogen and other constituents of the reclaimed water as it moves away from the proposed sprayfield. There would be one surface water monitoring station. It would be located at a small pond just north of the treatment plant and would also be sampled quarterly. Grand Ridge proposes to monitor the nitrogen levels in the treated wastewater and in the soils of the sprayfield on a bi-monthly basis to determine the amount of any supplemental nitrogen that should be applied to the grasses. This particular monitoring is not required by Department rules. Potable Water Wells Florida Administrative Code Rule 62-610.421(3) requires a sprayfield to be set back at least 500 feet from the edge of the wetted area to existing or approved potable water supply wells, unless the treatment facility meets Class 1 Reliability standards, in which case the setback requirement is 200 feet. Because this proposed facility would meet Class 1 Reliability standards, the 200-foot setback is applicable. Grand Ridge's consultants examined the records of the Northwest Florida Water Management District (NWFWMD) to determine whether there were any permitted potable water wells near the proposed project. They also went to every house near the project site to determine if there were any unpermitted wells. They found no record or other evidence of a potable water well within 200 feet of the proposed sprayfield. In April 2007, NWFWMD issued permits for two water wells to Petitioner Quillon Yon. These wells are to be located on his property south of the proposed project site. They have not yet been installed. Also, in April 2007, NWFWMD issued a permit to Merita Stanley for a well to be located at 450 Highway 69 in Grand Ridge. In May 2007, NWFWMD issued a permit to Rodney Lewis for a well to be located at 7289 Shady Grove Road in Grand Ridge. Grand Ridge's counsel stated at the hearing that he thinks the Stanley and Lewis wells have been installed. Grand Ridge filed petitions for administrative hearing with the NWFWMD to challenge these four potable water well permits. No information was provided about the status of the permit challenges. The permit documents that are part of Grand Ridge's Exhibit 53 do not indicate a precise location for the recently permitted wells. However, because the sprayfield is set back 180 feet from the property boundaries, the new potable water wells would have to be drilled less than 20 feet from the boundaries of the project site in order to be within 200 feet of the sprayfield. Mr. Zafar testified that, if it were necessary, the proposed wetted area of the sprayfield could be adjusted so that it is 20 feet further from the property lines. Surface Runoff Entering the Sprayfield Florida Administrative Code Rule 62-610.417(1) requires a sprayfield to be designed to prevent the entrance of surface runoff. The rule requires berms to be placed around the application area, if necessary for this purpose. In a hydrogeologic report from Grand Ridge's consultants, it was recommended that "sprayfield areas with greater than 5 percent slopes or adjacent to wetland areas be bermed with a one-foot high grassed berm to reduce the possibility of surface runoff." Grand Ridge proposes to place one-foot high berms around the wetlands near the sprayfield, but it was not made clear whether berms are to be placed to prevent runoff from entering the sprayfield. Grand Ridge's Exhibit 77 shows only berms down gradient of the sprayfield. There are no berms shown above the sprayfield. Stormwater Leaving the Project Site One of the principal disputes in this case is whether there would be contaminated runoff from the sprayfield that would move off-site. Florida Administrative Code Rule 62-610.400(1) states that off-site surface runoff of the applied reclaimed water is to be "generally avoided." Florida Administrative Code Rule 62-610.417(1) states that provisions for on-site surface runoff control are to be described in the applicant's engineering report and are subject to Department approval. There are no more specific requirements for controlling runoff associated with a proposed sprayfield. Grand Ridge's engineering report states that the existing drainage patterns of the project site will be used. The project site is highest near its southern boundary where the elevation reaches 250 feet and slopes down to an elevation of 120 feet in the northeastern corner of the site. Grand Ridge does not propose to do any grading on the site. Grand Ridge has proposed a permit condition that it must obtain a National Pollutant Discharge Elimination System Permit for construction of the sprayfield in order to address stormwater and erosion in greater detail. Petitioner Quillon Yon testified that stormwater runs off the northeastern corner of the project site and the southwestern area of the project site and makes its way, respectively, to Ocheesee Pond and to Dickson Bay. However, Petitioners did not establish what size rainfall event causes stormwater to run off the project site (or, more importantly, the proposed sprayfield area), what concentrations of contaminants would be in the stormwater leaving the project site, or what levels of contamination in the runoff would be necessary to cause an adverse impact to Ocheesee Pond or Dickson Bay. The average infiltration rate of 4.5 inches per hour far exceeds the permitted application rate of 0.5 inches per week. Grand Ridge would not be applying treated effluent to the sprayfield during a rainstorm. Any runoff from the sprayfield would have to flow across 180 feet of vegetated buffer before reaching the site boundaries. These and several other conditions of the proposed permit provide reasonable assurance that contaminated stormwater would not flow off the project site. Petitioners' evidence was insufficient to rise above speculation and to competently demonstrate that there is a reasonable probability that stormwater contaminated with treated effluent would flow off the proposed sprayfield, across the vegetated buffer areas, and make its way to Ocheesee Pond or Dickson Bay in concentrations that would adversely affect these water bodies. Petitioners' counsel, on cross-examination, frequently asked witnesses to assume hurricane and other extreme storm conditions. Rainstorms of extreme magnitude can overcome the ability of man-made stormwater controls to prevent runoff, but it is neither practicable nor reasonable to require permit applicants to install stormwater controls that would prevent runoff during a hurricane or other extreme circumstances that only rarely occur. The infiltration rate compared to the permitted application rate, the wide vegetated buffers, and other proposed permit conditions (such as the automatic shutoff during rainfall) make it unlikely that stormwater would run off the sprayfield and off the project site except under extreme rainfall. If there was runoff under extreme storm conditions, the runoff from the project site would constitute an insignificant contribution to the overall natural and man- induced contamination of Ocheesee Pond and Dickson Bay caused from the flows they would receive from all areas within their watersheds. On-Site Spring One of the factual disputes in this case is whether there exists a spring on the project site. The Department argues in its Proposed Recommended Order that, even if there were a spring where Petitioners claim it is located, there is no evidence that it is still flowing and, further, the operation of the sprayfield would not adversely affect the spring even if it were still flowing. However, the existence of a groundwater-fed spring, whether it is still flowing or not, would suggest there might be a direct conduit to the limestone aquifer. Therefore, whether a spring exists is relevant to the question of whether this project site is suitable for the operation of a sprayfield. There was no evidence presented in the form of maps or government records to indicate official knowledge of the existence of a spring on the project site. Petitioner Quillon Yon indicated that a spring is located on a hill close to the southern boundary of the project site. He described it as water flowing out of the ground and running down the hill all through the year except during droughts. He said that as a child growing up on the land he now owns that is south of the project site, he would occasionally gather water from the spring and his mother would sometimes wash clothes at the spring. Petitioner Quillon Yon said it has been many years since he has seen the spring. He also said that the spring might not be flowing any more because of the dry conditions of the past several years. Jerry Gilley testified that he leased the project site between 1985 and 2000 and constructed some of the roads on the site. He said he installed a culvert under a road located near the spring, which he called Springhead Road, so the flow from the spring would not wash out the road. He said the problem occurred every time it rained. Curiously, Mr. Gilley said he never actually saw the spring, but just the water running down the hill from the spring. There was a site inspection by Petitioners during the discovery phase of this case, one purpose of which was to look for the spring. No one reported finding the spring. Dr. Frasier Bingham, a biologist, walked throughout the project site to delineate wetlands and to look for threatened and endangered plant and animal species. He did not find a spring. However, Dr. Bingham described two wetlands on the project site associated with "slope seeps" where water in the soil beneath the ground surface emerges on a hillside to create wet conditions. One of these wetlands is in the area where Petitioner Quillon Yon said the spring is located. Eric Guarino, a hydrogeologist, offered the opinion that the spring described by Petitioner Quillon Yon would most likely be caused by rainfall, rather than upwelling from a hydraulic connection to groundwater, and, therefore, was not a spring. The more persuasive testimony in the record is that the feature described as a spring by Petitioners was probably a slope seep. The slope seeps are not within the proposed sprayfield. The existence of slope seeps on the project site does not make the site unsuitable for use as a sprayfield. On-Site Well Mr. Gilley said there was a man-made well located on the proposed project site which he thought was 40 to 50 feet deep. No one else seemed to have any knowledge of the well's existence. Off-Site Features Florida Administrative Code Rule 62-610.310(3)(c) requires permit applicants to prepare and submit a hydrogeologic survey, which includes geophysical information concerning known solution openings and sinkhole features within one mile of the site. Grand Ridge's hydrogeologist reviewed topographic maps to determine whether there was potential for sinkhole development within a one-mile radius of the project site. No features were found that indicated a potential for sinkhole development. Mr. Gilley said there is a sinkhole at the southeast corner of Ocheesee Pond. It was not established in the record how far this alleged sinkhole is from the project site. Respondents contend that Mr. Gilley is not competent to identify a sinkhole. A sinkhole is a feature that occurs with regularity in Florida and is recognizable to many people of average intelligence without the need to have been trained or educated as a hydrogeologist. Grand Ridge's hydrogeologist did not identify this feature as a sinkhole in his hydrogeologic survey. The record evidence does not show whether he was aware of the feature, but did not consider it a sinkhole, or determined that it was more than one mile from the project site. James Stevenson said there were five springs east of Ocheesee Pond, which he estimated to be four to six miles from the project site. Grand Ridge met the minimum requirements of Florida Administrative Code Rule 62-610.310(3)(c).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the permit requested by the Town of Grand Ridge, with the following modifications: The permit should incorporate the conditions described in Respondent's Exhibit 77; A condition should be added to require that berms be placed to prevent surface runoff into the sprayfield from higher elevations adjacent to the sprayfield where the slope is greater than five percent; A condition should be added to require the wetted area of the sprayfield to be set back at least 200 feet from the property boundaries; The permitted capacity of the land application system should be reduced to .205 mgd; and An investigation should be made to find the well referred to by Mr. Gilley and, if it is found, to properly abandon the well or take other appropriate action so that the well does not impair the function of the land application system. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 the Clerk of the Division of Administrative Hearings this 8th day of February, 2008.
