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
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.
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Kenneth W. Barron for a septic tank be DENIED; however, applicant should be given thirty days from date of the final order in which to raise the tank to a height consistent with the construction permit. DONE and RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of April, 1983.
The Issue The issues are whether the Department of Transportation may declare Petitioner non-responsible and ineligible to bid on Department contracts based upon Petitioner's alleged unsatisfactory performance and default on Department contract number E-5G08; and if so, for what period of time should Petitioner be declared non-responsible.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner is a Florida corporation whose principal business is road and bridge maintenance. Petitioner also does some landscape installation work. Petitioner's president is Charles Welch. Petitioner has received between ten and 20 contracts from the Department since 1993. However, the contract at issue in this proceeding is the first landscape installation project that Petitioner has done for the Department. The Department is the state agency responsible for maintaining and regulating the use of the right-of-way along the state highway system. That responsibility includes overseeing the installation and maintenance of landscaping within the right-of-way. Department Contract No. E-5G08 In November 2001, the Department awarded Petitioner a contract to install landscaping around six interchanges in the central Florida area. The interchanges were identified and prioritized in the bid specifications as follows: (1) I-95/US 192 interchange; (2) I-4/Lake Mary Boulevard interchange; (3) SR 25/SR 200 interchange; (4) SR 482/SR 435 interchange; (5) I-95/SR 518 interchange; and (6) US 441/SR 46 interchange. The SR 482/SR 435 interchange was subsequently deleted from the project, and the I-4/Lake Mary Boulevard interchange was subsequently prioritized ahead of the I-95/US 192 interchange. The Department's contract identification number for the project was E-5G08. The contract required Petitioner to prepare and mulch 66,667 square yards of beds for the landscaping and then to install a total of 63,667 plumbago shrubs and 927 sabal palm trees. The plumbagos were required to be ten to 18 inches in height, and the palm trees were required to be nine to 20 feet in height. Petitioner did not challenge the specifications for the project. Petitioner bid $745,160.90 for the contract, and the Department accepted the bid at that amount. Petitioner's bid amount was calculated by multiplying a unit price for each plant type by the number of plants required under the contract, plus a unit price for the mulching/bed preparation multiplied by the total number of square yards in the beds. No separate amount was bid by Petitioner for "maintenance," and the bid form did not include a separate line for that item. The contract generally described the work to be performed by Petitioner as "furnish[ing] and install[ing] palms, plants and associated landscape materials at various locations." A similar description of the project was provided on the first page of the bid specification package. The contract and the bid specification package incorporated by reference the 2000 edition of the Department's Standard Specifications for Road and Bridge Construction (Standard Specifications). Mr. Welch was generally familiar with the Standard Specifications as a result of the prior contract work that he and Petitioner had done for the Department. He understood that the Standard Specifications were part of each Department construction and maintenance contract. Section 580-10 of the Standard Specifications, entitled "Contractor's Responsibility for Condition of the Plantings," requires the contractor to: [e]nsure that the plants are kept watered, that the staking and guying is adjusted as necessary, that all planting areas and beds are kept free of weeds and undesirable plant growth and that the plants are maintained so that they are healthy, vigorous, and undamaged at the time of acceptance. Section 580-11 of the Standard Specifications, entitled "Plant Establishment Period and Contractor's Warranty," requires the contractor to: [a]ssume responsibility for the proper maintenance, survival and condition of all landscape items for a period of one year after the final acceptance of all work under the Contract in accordance with [Section] 5-11. [The contractor shall also] [p]rovide a Warranty/Maintenance Bond to the Department in the amount of the total sums bid for all landscape items as evidence of warranty during this plant establishment period. The costs of the bond will not be paid separately, but will be included in the costs of other bid items. * * * [The contractor shall] [t]ake responsibility to apply water as necessary during this period and include the cost in the various landscape items. No separate measurement of payment will be made for water during the plant establishment period. Pursuant to Sections 5-10 and 5-11 of the Standard Specifications, "acceptance" of a project does not occur until the Department determines that the contractor has satisfactorily completed all work on the project and informs the contractor in writing that the project is accepted. Sections 5-10.2 and 5-10.3 of the Standard Specifications allow for acceptance of portions of the project, called "partial acceptance." Those provisions do not, however, require the Department to accept projects on a piecemeal basis. At the pre-construction conference held on November 19, 2001, Mr. Welch asked, "if a single location [would] be accepted as it is completed." The Department's project manager, Stephen Bass, replied that he would "check to see if this is possible," and he told Mr. Welch that "[i]n the meantime, as you complete a site, advise me in writing and I will respond " Based upon the subsequent correspondence between the parties, it can be inferred that the Department decided against accepting the project on a site-by-site basis. No partial or final acceptance was ever given for the project or any of the individual sites. The first page of the specification package provided that the contract period was "270 days for installation," and "365 addtl [sic] days after acceptance for establishment." The 365-day, post-acceptance establishment period referred to in the specification package is the same as the one- year period referred to in Section 580-11 of the Standard Specifications. Petitioner's obligations during the establishment period were specifically discussed at the pre-construction conference. At that time, Mr. Bass made it clear to Mr. Welch that the contract included the one-year establishment period, in addition to the 270-day installation period. The installation period began on December 3, 2001, and ended on September 8, 2002. The latter date takes into account the ten "[bad] weather days" added to the installation period under the terms of the contract. Mr. Welch understood the project to be an installation-only contract. That understanding was based upon the reference to a 270-day installation period in the specifications, and the fact that the bid form did not have a separate line-item for maintenance. Mr. Welch did not read the specifications word-for- word prior to bidding on the project, nor did he take into account Section 580-11 of the Standard Specifications or the language on the first page of the specification package which clearly referenced the 365-day, post-acceptance establishment period. Mr. Welch did not understand the contract to require Petitioner to weed or otherwise maintain the beds after the plants were installed. He understood the contract to only require Petitioner to install the plants and then water them through the end of the 270-day installation period. In reaching this conclusion, Mr. Welch did not take into account Section 580-10 of the Standard Specifications, which clearly requires pre-acceptance weeding and which makes the contractor the absolute insurer of the plants until acceptance by the Department. The Department did not in any way contribute to Mr. Welch's misunderstanding of the scope of the contract. The contract documents were clear and unambiguous on the issue and the Department made it clear from the outset that the contract included a one-year establishment period. Petitioner's Performance Under the Contract Petitioner performed its work under the contract in a series of steps. Petitioner first sprayed the areas at each site where the landscaping would be installed with a herbacide to kill any existing vegetation. Two herbacide treatments were done at each site. Petitioner then "mulched" the planting areas at each site by mowing the dead vegetation and marked the locations at each site where the palm trees were to be installed. Petitioner then planted the palm trees at each site. Next, Petitioner installed "weed fabric" at the I-4/Lake Mary Boulevard interchange (hereafter "the Lake Mary site"). The weed fabric has two purposes: it blocks the light that reaches the ground thereby reducing or eliminating weeds, and it also helps prevent erosion. After installing the weed fabric, Petitioner began planting the plumbago shrubs at the Lake Mary site. To do so, Petitioner cut and folded back the weed fabric where each plumbago was to be located and then dug the hole within which the plant was placed. After the plant was placed in the hole, the weed fabric was then re-folded around the base of the plant. After the plumbagos were planted, Petitioner completed its work at the Lake Mary site by spreading pine straw mulch in the landscaped beds. The contract required a four-inch layer of mulch. After completing its work at the Lake Mary site, Petitioner moved to another site and installed the weed fabric, planted the plumbagos, and spread the pine straw mulch at that site. Petitioner continued working on a site-by-site basis in this manner until all of the sites had been completed. In June 2002, the Department expressed concern to Petitioner that it had fallen behind its installation schedule. In response, Petitioner put more people on the job and was able to get back on schedule. Petitioner completed the installation of the plants within the 270 days allotted for installation. Petitioner periodically watered each of the sites as the plants were being installed. Petitioner had two water trucks that it used for watering. The truck used at the Lake Mary site sprayed a stream of water out of a hose at a relatively high flow rate. Because large portions of the landscaped beds at the Lake Mary site were on steep slopes around the interchange, the stream of water from the water truck caused some of the pine straw to wash down the slope. Heavy rains also caused the pine straw to wash down the slope and, in some areas, to wash away completely. As a result, some of the landscaped areas were not covered with the four inches of mulch required by the specifications. Mr. Welch acknowledged the loss of mulch in some areas, and he attributed it to the weed fabric being too "slick" to hold the mulch. Nevertheless, because Mr. Welch considered the replacement of the mulch to be maintenance, which he did not consider to be part of the contract, Petitioner never replaced the pine straw. Petitioner did not consider using a "drip line" or other watering system which would have applied the water at ground level or at a lower rate of flow than the stream of water being sprayed from the water truck. Such an alternative system may have minimized the amount of mulch that washed down the slope from watering, but it may not have affected the mulch that washed away due to heavy rains. Such a system may have also gotten more water to the plants' roots. Despite the watering done by Petitioner, plumbagos and palm trees died at the Lake Mary site, as well as at the other sites. Mr. Welch acknowledged the "loss" of a number of trees and plants, although he testified that fewer plants had died than he had projected at the outset of the project. The precise number of trees and plants which died before Petitioner was declared in default on the contract and told to stop work on the project is not clearly reflected in the record. The loss of the plumbagos at the Lake Mary site may be partially attributable to the weed fabric selected by Petitioner not being permeable enough to allow the water to reach the plant roots, but Petitioner's failure to utilize an alternative watering system to compensate for the "problems" it encountered with the weed fabric also contributed to the loss of the plumbagos. On August 12, 2002, the Department and Petitioner "agreed that substantial completion has been achieved" on each of the sites. That means that all or substantially all of the plants had been installed by that date; it does not mean that the Department had accepted the work, either partially or conditionally. By letter dated August 13, 2002, the Department informed Petitioner that maintenance of the completed sites was necessary. Specifically, the letter informed Petitioner that there were dead palm trees and plumbagos at all of the sites which needed to be replaced, that the pine straw mulch needed to be replaced at most of the sites, and that weeding needed to be done. Petitioner did not perform the weeding or other maintenance directed by the Department. Indeed, the only work that Petitioner did on the project after August 13, 2002, was on August 20, 2002, when it watered two of the sites. By letter dated August 15, 2002, Petitioner responded to the Department's direction that maintenance be commenced at the completed sites. In that letter, Petitioner characterized the maintenance as "extra work" and requested additional compensation for the maintenance work. The Department denied Petitioner's request for additional compensation by letter dated August 15, 2002. That letter informed Petitioner that "a Deficiency Letter would be forthcoming if weed removal operation does not begin immediately." Petitioner did not respond to the letter. By letter dated August 21, 2002, the Department issued a "performance deficiency" based upon Petitioner's failure to maintain the planted areas as required by the contract and as directed by the Department in the letters dated August 13 and 15, 2002. Petitioner did not contest the deficiency within the ten-day period prescribed by the letter. By letter dated August 22, 2002, the Department requested that Petitioner submit the Warranty/Maintenance Bond required by the contract since "substantial completion has been achieved on the . . . project." The letter further advised Petitioner that the one-year establishment period would not commence until the bond was received by the Department. Petitioner did not respond to the letter. By letter dated August 27, 2002, the Department provided Petitioner with a "punch list" of items that required correction before the project could be accepted. The list included the replacement of dead palm trees and dead or under- sized plumbago shrubs at all of the sites; missing pine straw mulch at all of the sites; weeding and general clean-up of all of the sites; and submittal of the Warranty/Maintenance Bond. At the time of the Department's August 27, 2002, letter, 12 days still remained in the installation period. Petitioner did not respond to the letter and it made no effort to complete the punch list items identified by the Department. The Department never accepted the work performed by Petitioner under the contract because of the deficiencies identified above. As a result, the 365-day post-acceptance establishment period never commenced. Petitioner never provided the Department the Warranty/Maintenance Bond required by Section 580-11 of the Standard Specifications, which was incorporated by reference into the contract. The Lake Mary site is highly visible because the adjacent roads are very heavily traveled. The Department received complaints regarding the appearance of the Lake Mary site. The complaints came from Seminole County officials and members of the public. Alternative Weed Fabric Proposed by Petitioner The specifications package for the contract provided general requirements for the weed fabric to be used on the project. It did not, however, specify a specific brand of fabric which must be used. The specifications package provided that "[t]he fabric shall conform to the physical requirements on Roadway and Traffic Design Standards, Index No. 199 according to its application." Index No. 199 refers to the weed fabric as an "erosion mat," and requires it to have an ultra violet (UV) rating of 2,000 hours. Index No. 199 does not prescribe criteria for water permeability for the weed fabric. Petitioner provided the information in the specifications package relating to the weed fabric to its material supplier, who then provided Petitioner a fabric that met the specifications. The Department was not involved in those discussions. As required by the specifications package, Petitioner provided the Department a copy of the product data sheet for the selected fabric so that the Department could confirm that the fabric met the requirements of Index No. 199. The weed fabric which Petitioner selected was called "gold line." It had a UV rating of 2,500 hours, which met the requirements of Index No. 199. It had a water permeability rating of 15 gallons per minute per square foot (gal/min/SF). After encountering the problems described above at the Lake Mary site, Petitioner began looking for an alternative weed fabric which would be more permeable to water. The alternative fabric identified by Petitioner was "Style 125EX" from Linq Industrial Fabrics, Inc. The water permeability rating for that fabric was 150 gal/min/SF, but its UV rating was only 500 hours. Mr. Welch provided the data sheet for the Style 125EX fabric to Mr. Bass and requested that Petitioner be allowed to substitute that fabric for the fabric that it had used at the Lake Mary site. The Style 125EX fabric would have been used on the remaining sites, because the Lake Mary site had been completed with the original weed fabric by that time. That request was denied by the Department because the UV rating for the Style 125EX fabric did not meet the requirements of Index No. 199. The lower UV rating meant that the fabric would not hold up as long and, therefore, could create maintenance problems in the future. After the request to substitute the Style 125EX fabric was denied, Petitioner did not attempt to locate an alternative material which met the UV rating specified in Index No. 199, but was more permeable to water than the gold line fabric. Petitioner's Default and Unsatisfactory Performance Rating Section 8-9.1 of the contract provides that: The following acts or omissions constitute acts of default and . . . the Department will give notice, in writing, to the Contractor and his surety for any delay, neglect or default, if the Contractor: * * * performs the work unsuitably, or neglects or refuses to remove materials or to perform anew such work that the Engineer rejects as unacceptable and unsuitable; discontinues prosecution of the work, or fails to resume discontinued work within a reasonable time after the Engineer notifies the Contractor to do so; * * * (j) for any other cause whatsoever, fails to carry on the work in an acceptable manner, . . . . For a notice based upon reasons stated in subparagraphs (a) through (h) and (j): if the Contractor, within a period of ten calendar days after receiving the notice described above, fails to correct the conditions of which complaint is made, the Department will . . . have full power and authority, without violating the Contract, to take the prosecution of the work out of the hands of the Contractor and to declare the contractor in default. On September 16, 2002, the Department notified Petitioner that it intended to "default" Petitioner under the contract based upon its failure to maintain the planted areas, its failure to replace the dead plumbagos and palms, and its failure to provide the required Maintenance/Warranty Bond. As required by the contract, the letter gave Petitioner 10 days to cure the deficiencies in its performance. Petitioner did not respond to the Department's default letter, nor did it take any action to cure the deficiencies identified by the Department. As a result, on September 30, 2002, the Department formally declared Petitioner in default on the contract and directed Petitioner not to perform any additional work on the project. By letter dated October 22, 2002, the Department advised Petitioner of its "preliminary" field performance rating for the contract. Petitioner received a raw score of 53 (out of 90), which is a scaled score of 59. That is an unsatisfactory rating. Petitioner did not contest its rating within the time allowed by the Department's October 22, 2002, letter. As a result, the preliminary rating became final. Petitioner was not scored in the area of "maintenance of traffic operations." The Department had not received any complaints from the public on that issue, which is the primary consideration upon which that score is based. Had Petitioner received a "satisfactory" grade in that category, Petitioner's total score would have been 60. If Petitioner received a higher grade in that category, its total score could have been as high as 63. In either event, those scores still result in an unsatisfactory rating. By letter dated February 12, 2003, the Department advised Petitioner that it intended to declare Petitioner non-responsible for a period of two years based upon its default and unsatisfactory performance on Department contract number E-5G08. Petitioner timely requested a formal hearing, and this proceeding followed. The Department stipulated at the hearing that its decision to declare Petitioner non-responsible was not based on Petitioner's numerical performance rating (whether it is 59, 60, or 63), but rather on the actual unsatisfactory performance that is described above. Subsequent Department Contract With Vila & Sons After Petitioner's default, the Department contracted with another entity "in order to salvage the Department's investment in this landscaping project, i.e., ensure that the plantings become established, " That contract, entered into in May 2003 between the Department and Vila & Sons Landscaping Corporation, is identified as contract number E-5H09 (Vila & Sons Contract). The contract amount was $112,461.36. The Vila & Sons Contract was for "one-time maintenance" of three of the sites that Petitioner was responsible for under its contract with the Department. The sites were the I-4/Lake Mary Boulevard interchange, the SR 25/SR 200 interchange, and the US 441/SR 46 interchange. The Vila & Sons Contract was only for a 60-day period and consisted of the following landscape maintenance functions: 1) weeding [which includes pruning of existing live shrubs], 2) removal and replacement of dead shrubs, 3) fertilizing [which includes "watering in"], 4) remulching as necessary, 5) watering for plant establishment and/or maintenance. (Brackets in original). The Vila & Sons Contract called for the installation of 3,700 plumbago shrubs. It does not make reference to the removal of dead palm trees, the re-erection of fallen palm trees, or the installation of new palm trees. The bid form for the Vila & Sons Contract included separate line-items for water, mulch pine bark, plumbago shrubs, slow-release fertilizer, and "landscape maintenance (weed removal, manual)." The record does not establish whether the Vila & Sons Contract was satisfactorily performed or whether it was successful in "salvaging" the installation work which had been done by Petitioner. Between the time that Petitioner was declared in default in September 2002 and May 2003 when the Vila & Sons Contract was entered into, the Central Florida area had periods of cold weather. The cold temperatures during those periods may have killed some of the plumbagos and palm trees installed by Petitioner, but the record does not establish how many plants, if any, were killed by the cold weather as compared to the plants that were already dead at the time of Petitioner's default.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order which declares Petitioner non-responsible and ineligible to bid on Department contracts for a period of two years, commencing on the date of the final order. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 18th day of September, 2003. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32308 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact On or about July 9, 1987 an application for conditional use approval to allow off-premises sale of beer and wine (2APS) was filed on behalf of Petitioner for property located at 2030 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG). A public hearing before the Planning and Zoning Board was held on August 4, 1987. At that hearing, the Petitioner's representative was not allowed to give rebuttal testimony, although the Board's by-laws do allow the applicant to rebut testimony in opposition to the application, and rebuttal is, in fact, usually allowed. The Petitioner's representative did not specifically request an opportunity to rebut the opponent's testimony, but assumed he would be given an opportunity to speak before the Board voted. The Planning and Zoning Board voted 3-2 to deny conditional use approval for this application. A timely appeal was taken by Petitioner on August 18, 1987. With this application, Petitioner seeks approval to sell beer and wine at a 7-11 convenience store. By subsequent application and approval of the Planning and Zoning Board on September 1, 1987 Petitioner has been granted a conditional use for 1APS, package sale of beer only. However, this 1APS application and approval is not at issue in this case. The parties stipulated that the property in question is within five hundred feet of a church and several residences.
The Issue The issues in these cases are whether the Respondent, Roy Palmer, is entitled to a Noticed General Environmental Resource Permit, under Florida Administrative Code Chapter 62-341, and a Consent of Use under Florida Administrative Code Chapter 18-21.
Findings Of Fact Procedural History On or about February 13, 1995, the Respondent, Roy Palmer (Palmer), applied for a wetland resource permit to construct a 395-foot boat dock for use at his single-family residence at property he owned on Sarasota Bay, an Outstanding Florida Water. As proposed, this dock was to originate from the northern part of Palmer's property and have a terminal platform with two boat moorings and two boat lifts. On September 1, 1995, the Department of Environmental Protection (the Department or DEP) gave notice of intent to issue a permit for a shorter (370-foot) dock originating from the southern part of the Palmer property. The Petitioners filed a petition for administrative hearing challenging the intended action. DEP referred the petition to the Division of Administrative Hearings (DOAH), where it was assigned DOAH Case No. 95-5311. On or about December 11, 1995, Palmer applied for a noticed general environmental resource permit (ERP) permit for his dock under new DEP rules went into effect on October 3, 1995. This proposal was for the 370-foot dock originating from the southern part of the Palmer property. On or about January 10, 1996, DEP acknowledged receipt of the noticed general ERP (No. 582819483) and informed Palmer that it appeared to meet the requirements of the new rule. DEP also gave notice of intent to grant Palmer's application for consent of use of sovereign submerged lands necessary to construct the dock. (The record is not clear when the application for consent of use was filed.) The Petitioners filed a petition for administrative hearing challenging agency action regarding both the noticed general ERP and the consent of use. DEP also referred this petition to DOAH, where it was assigned DOAH Case No. 96-0736. Palmer withdrew the original permit application and moved to dismiss DOAH Case No. 95-5311. In July, 1996, Palmer applied for a noticed general ERP to build a still shorter (232-foot) dock originating from the southern part of the Palmer property (Permit No. 292583). Apparently, no notice of the application was published or required to be published. It is not clear whether the Petitioners "filed a written request for notification of any pending applications affecting the particular area in which the proposed activity is to occur." Palmer's second noticed general ERP (No. 292583) was amended on or about August 19, 1996, to eliminate one boat mooring and one boat lift. DEP took no action on Palmer's second application for a noticed general ERP No. 292583. On September 23, 1996, Palmer filed a Motion to Dismiss the Petition for Administrative Proceeding in DOAH Case No. 96-0736 because he had withdrawn the previous application for a noticed general ERP for a 370-foot dock (No. 582819483) and was proceeding only on the second noticed general ERP (No. 292583) for the 232foot dock. Palmer's intent was to dismiss only the portion of his prior application regarding the noticed general permit, but not the consent of use. On October 28, 1996, the Petitioners filed a petition for administrative hearing challenging noticed general ERP No. 292583 for the 232-foot dock. This petition alleged that the Petitioners filed a written objection to noticed general ERP No. on September 16, 1996, which requested a written response, and that no response of any kind was received until the Petitioners inquired and were told that DEP did not intend to respond to either the noticed general ERP (No. 292583) or the Petitioners' objection. Proposed Dock at Issue The proposal at issue is for a 227-foot access pier and 20 foot by 5 foot terminal platform with only one boat mooring and one boat lift. The length, location, and design of Palmer's proposed dock was changed in an attempt to satisfy the Department of Environmental Protection (DEP or the Department) and Palmer's neighbors. Palmer's task in this regard was difficult in part because a longer dock with a terminus in deeper water could have less impact on seagrasses (the major environmental concern) but would have a greater impact on the neighbors' views of Sarasota Bay (the major infringement of riparian rights concern.) In the final version, Palmer tried to balance these conflicting concerns. As proposed, neither the terminal platform, boat lift, nor mooring location occurs over submerged grassbeds, coral communities or wetlands. Starting at the mean high water line, the first 75 feet of the access pier for the proposed dock will traverse essentially no sea grasses. In the next 75 feet to 150 feet of the access pier, there will be approximately 80% vegetative cover consisting primarily of the seagrass halodule wrightii. Between 150 feet and 200 feet, there will be approximately 20% vegetative cover consisting of the seagrasses halodule wrightii and thalassia testudinum. Between 200 feet and 232 feet, seagrasses consisted primarily of thalassia testudinum, except that the terminal platform is located in an area of essentially bare sand. Starting at 80 feet from the mean high water line, the access pier for the proposed dock will ramp up to 5 feet above mean high water for the next 20 linear feet and continue at that elevation for the next 112 feet to reduce shading of the seagrasses. Then it will descend stairs for the next 5 linear feet, until it is 3.5 feet above mean high water, and will continue at that elevation for 10 more feet to where it joins the 20 foot by 5 foot terminal platform. In this way, wherever it traverses seagrasses, the access walkway portion of the pier will be elevated 5 feet above mean high water. The access walkway will be only 4 feet wide and will have half-inch wide gaps between its deck boards to allow sunlight through and further reduce shading of the seagrasses. The access walkway also will have handrails that are maintained in such a manner as to prevent use of the access walkways for boat mooring or access. As proposed, the terminal platform and boat lift occurs in a location with minimum depth of 2.2 feet below the mean low water level. There is some water 1.7 feet deep in the vicinity of the terminal platform, but the structure can be used without traversing the shallow water. The structure is designed so that boat mooring and navigational access will be in water at least 2 feet deep. Including access pier and terminal platform, the total area of Palmer's proposed dock over sovereign, submerged land would be 1,008 square feet. There will be no wet bars or living quarters over wetlands or surface waters or on the pier, and there will be no structures enclosed by walls or doors. There will be no fish cleaning facilities, boat repair facilities or equipment, or fueling facilities on the proposed dock. No overboard discharges of trash, human, or animal waste, or fuel will occur from the dock. The only dredging or filling associated with construction of Palmer's proposed dock will be the minimum dredge and fill required for installation of the actual pilings for the pier, terminal platform, and boat lift. Altogether, less than 30 square feet of bay bottom will be disturbed during construction and displaced to accommodate the pilings. Palmer's noticed general ERP is subject to the general conditions set out in Florida Administrative Code Rule 62- 341.427. Among those conditions is the requirement that Palmer implement best management practices for erosion, turbidity, and other pollution control to prevent violation of state water quality standards. The pilings will be jetted, not driven, into place to minimize disturbance of the bay bottom and temporary increases in turbidity. Turbidity barriers will be installed and maintained in a functional condition at each piling until construction is completed and soils are stabilized and vegetation has been established. Used properly, turbidity barriers have proved effective in containing temporary turbidity from dock construction. Based on the expert testimony, it is found that the construction of Palmer's proposed dock will not significantly impact seagrasses. The Petitioners presented expert testimony on seagrasses, but their expert testified only generally based on studies showing that shading negatively impacts seagrasses. He had no prior knowledge of the Palmer dock design, seagrass coverage, or the depth of the water. When apprised of some information concerning Palmer's proposed dock, he admitted that the studies involved far more severe shading conditions than would be caused by the proposed dock. He could not testify that the Palmer dock design would harm seagrasses, with the exception of those actually removed by the installation of the pilings. Accidental boat propeller dredging in using a dock can be a secondary impact on seagrasses from dock construction. But while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of damage to seagrasses from accidental prop dredging. Petitioners Dr. Franklin Pfeiffenberger, James Castoro, and Winifred Castoro jointly own a dock to the south of the Palmer property. This dock, which was built in the 1930's, projects 190 feet into Sarasota Bay and traverses seagrasses. Unlike the proposed Palmer dock, the Pfeiffenberger dock is not elevated, and it terminates in seagrasses. The seagrasses under the Pfeiffenberger dock are the same types as those located in the Palmer dock alignment--a combination of halodule wrightii and thalassia testudinum. The dock has been rebuilt a number of times over the years. Upon physical inspection, apparently healthy and growing seagrasses were found underneath the Pfeiffenberger dock. The proposed dock will not harm wildlife, including manatees (the only endangered species in the area, animal or plant). Manatees use Sarasota Bay in general, but the east side of the bay, where the Palmer property is located, is not a high use area. It is shallow and would not be considered "select" habitat for manatees. The proposed dock would not have any detrimental effect on manatee travel patterns; they could easily swim around the dock. Manatees eat seagrasses and other aquatic vegetation, but the proposed dock will not have significant adverse impact on those resources. Finally, while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of injury to manatees in the area from boat collisions and prop scarring. Except for temporary turbidity during construction, no other water quality parameters will be violated as a result of the construction of Palmer's proposed dock. Palmer's proposed dock and its use will not significantly impede navigability in Sarasota Bay. The bay is approximately 18,000 feet wide at that point, and it is approximately 4,800 feet from Palmer's property to the Intracoastal Waterway. Since the water is shallow near shore in the vicinity of the Palmer property, relatively few boats frequent the area. Those that do are generally smaller boats. These boats easily could navigate so as to avoid the dock; very small boats, such as canoes and kayaks, might even be able to carefully pass under the elevated portion of the dock. Palmer's proposed dock also would not be a serious impediment to other recreational uses of Sarasota Bay in the area. The water is too shallow for swimming. Fishing could improve because the dock could attract baitfish. People could continue to wade-fish by walking around or even under the proposed dock. Palmer's proposed dock is aesthetically consistent with the area in which it is located. All the Petitioners have some sort of man-made structure projecting out into Sarasota Bay from their property. As already mentioned, Dr. Pfeiffenberger and the Castoros have a 190-foot dock projecting straight out into Sarasota Bay. Within the past five years, Dr. Pfeiffenberger has installed a bench to sit on at the end of the dock. To the north of the Palmer property, property owned by Mr. and Mrs. Cabaniss has a yacht basin formed by a sea wall that projects roughly perpendicular to the shoreline out into the bay. Immediately north of the Cabaniss property, there is a boat house on the Goldman property where it abuts the yacht basin. The Goldmans' boat house is approximately 20 feet in length and 10 feet in height from ground level. Immediately south of the Palmer property, Ms. Stenhouse has a small dock (which appears to be located over seagrasses.) As a result, the viewsheds of Palmer and the Petitioners already contain many docks and man- made structures. In addition, the Ringling Causeway and bridge can be seen from all of these properties. Palmer's proposed dock will appear in some views from the Petitioners' properties. Generally, the closer the neighbor, the more will be seen of Palmer's proposed dock. Some of the Petitioners will only be able to see the proposed dock if they go out to the westerly edge of their properties on the bay. While the proposed dock will appear in and alter these views, it will not eliminate any Petitioner's view of Sarasota Bay. Even the closest neighbors will have some unobstructed views around the proposed dock. It also will be possible to see over and under the proposed dock, similar to the way in which many of the Petitioners now enjoy their views. There are tall pine and palm trees on the Cabaniss property between their house and their view of the bay. Most of the other properties in the vicinity appear to have similar viewsheds. Ms. Stenhouse has a large stand of mangroves of the western edge of her property; they cover approximately 60 percent of the panorama from her house, but they are trimmed up so she can see through them. While some people would prefer not to have the Palmer dock there, other people might view the availability of single- family residential docks to be an asset to the properties in the neighborhood. Based on expert testimony, it cannot be found that property values in the area would go down as a result of Palmer's proposed dock. Palmer's proposed dock does little if anything to further the idealistic goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan to restore and expand seagrasses in Sarasota Bay in that the proposed dock will eliminate some seagrasses. However, only approximately 30 square feet of seagrasses will be lost. Otherwise, the proposed dock is consistent with other goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan in that the dock has been aligned and planned so as to minimize impacts on seagrasses while balancing the neighbors' desire to minimize the impact on their views of Sarasota Bay. Palmer's Riparian Rights Palmer and his wife received a Warranty Deed, dated August 27, 1993, from James Kirk, II, individually and as personal representative of the Estate of Marie Ferguson. The deed describes Lots 27 and 28 of the Indian Beach subdivision in Sarasota, Florida, with a western boundary "along the shores of Sarasota Bay." Palmer attached this deed to his applications. Since at least November 1992, the mean high water line of Sarasota Bay has been west of a seawall on the Palmer property. The evidence was clear that the seawall has been there since at least 1944 and that Palmer has not filled the area to the west of the seawall or built any structure that influences its existence. The evidence was not clear as to the creation and history of upland to the west of the seawall. From aerial photographs, it appears that at least some upland has existed to the west of the seawall at least from time to time for at least the last 30 years. For reasons no witness could explain, the Palmers also received a Warranty Deed from Kirk, dated September 3, 1993, purporting to convey title only up to the seawall on the Palmer property. Likewise for reasons no witness could explain, a land surveyor named Lawrence R. Weber prepared a boundary survey based on the description in the September 3, 1993, Warranty Deed. Also for reasons no witness could explain, the Palmers received a Quit Claim Deed from Kirk, dated October 20, 1993. This instrument quitclaimed to the Palmers "all of the Grantor's property to the mean high water line of Sarasota Bay, including riparian rights." Except for the mysterious September 3, 1993, Warranty Deed from Kirk, all deeds in the chain of title back to at least 1944 reflect an intention to convey riparian rights. A deed given by Helen and Frederick Delaute to Cecilia and Harold Wilkins, dated April 19, 1944, described the westerly boundary of the property as running northerly along the shores of Sarasota Bay and specifically referenced riparian rights. (This deed attached a survey showing the still-existing seawall.) The next deed in the chain of title was from the widowed Cecilia S. Wilkins to Edward and Laura Williams dated December 27, 1954. The metes and bounds description again referenced the westerly boundary as running along the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Edward and Laura Williams to Aidan and Wilma E. Dewey dated June 30, 1958. This deed again defined the westerly boundaries of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Aidan and Wilma Dewey to Edward and Marie Ferguson dated August 23, 1967. This deed again defined the westerly boundary of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order issuing Noticed General Environmental Resource Permit (No. 292583) and Consent of Use (No. 582819483) to Roy Palmer. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: Richard Filson, Esquire Filson and Penge, P.A. 2727 South Tamiami Trail, Suite 2 Sarasota, Florida 34239 Thomas I. Mayton, Esquire T. Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David M. Levin, Esquire Icard, Merrill, Cullis, Timm, Furen & Ginsburg Post Office Box 4195 Sarasota, Florida 34237 Alexandra St. Paul, Esquire The Riverview Center 1111 3rd Avenue, West Suite 350 Bradenton, Florida 34205 Kathy Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether the finger pier portion of Respondent Raab's dock creates a navigational hazard. The resolution of that issue will determine whether the dock qualifies for an exemption from an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes.
Findings Of Fact DEP has the authority to regulate the construction of docks in jurisdictional wetlands and other waters of the State of Florida and on state submerged lands under Chapters 253, 373, and 403, Florida Statutes, and Chapters 62-330 (which adopts Chapter 40E-4) and 18-21, Florida Administrative Code. The Association is a residential community located in Sewall's Point, Martin County, Florida. All lots within the community abut navigable channels which provide ingress and egress to the ICW. These channels converge so that there is only one channel that connects to the ICW. Most of the residents of the community have large vessels that routinely navigate the channels within the community. At the time of the formal hearing, many of the vessels owned by residents of the community had drafts of four feet and at least two had drafts of five feet. In 1997, Mr. Raab purchased a residence in the Association that is located very close to where the channel meets the ICW. Because of that location, practically all residents of the Association have to pass in front of Mr. Raab's property when going into or returning from the ICW. The property at issue is located at 22 Simara Street, Sewalls Point, Martin County, Florida. The dock at issue in this proceeding is subject to DEP's regulatory authority. When Mr. Raab purchased this property in 1997, there was an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from DEP to demolish the existing marginal dock and replace it with a virtually identical structure. The existence and configuration of the marginal dock is not at issue in this proceeding. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel 36 feet so he could dock his vessel perpendicular to the bulkhead. Mr. Raab's plan also called for the construction of two pilings 12 feet from the end of the finger pier. Mr. Raab had, as of the time of the formal hearing, re-constructed the marginal dock and had constructed the finger pier. 3/ The two additional pilings had not been constructed at the time of the formal hearing. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary. The Association thereafter timely challenged DEP's determination that the finger pier portion of the project (and the two additional pilings) did not require an environmental resource permit. There was a conflict in the evidence as to the functional width of the channel in front of Mr. Raab's property. 4/ Mr. Holly testified on behalf of the Association that the functional width of the channel was 83 feet. Mr. Lidberg, testifying on behalf of Mr. Raab, testified that the functional width was 101 feet. This conflict is resolved by finding that the functional width of the channel in front of the Raab property is 101 feet. 5/ The prevailing winds in the area in front of Mr. Raabb's dock blow into the dock. The depth of the water in the channels is influenced by tides. The principal reason Mr. Raab wants the finger pier is so that he can moor his boat with the bow to the prevailing winds in times of high winds. At the time of the formal hearing, Mr. Raab owned a vessel with an overall length of 44 feet. There was a conflict in the evidence as to whether Mr. Raab's finger pier and the two pilings that have been authorized, but not constructed, constitute a hazard to navigation. 6/ Based on the totality of the evidence, it is found that these structures do not create a navigational hazard. 7/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Association's challenge to the determination that Mr. Raab's project qualifies for an exemption from an environmental resource permit. DONE AND ENTERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of March, 2000.
The Issue The issue is whether Resort Village Utility, Inc., and SGI Utility, LLC, are entitled to a renewal of a permit for the construction and operation of a wastewater treatment facility with effluent disposal to a rapid-rate absorption field land application system consisting of three absorption beds on St. George Island in Franklin County, Florida.
Findings Of Fact In 1996, DEP issued Permit No. 235845 (subsequently renumbered Permit No. FLA010069-001) to RVU. The permit was issued pursuant to Adams v. Resort Village Utility, Inc. and Department of Environmental Protection, DOAH Case No. 95-0863 (Final Order February 23, 1996). Petitioner, in the instant case, was the petitioner in the prior case. RVU and DEP, Respondents in the instant case, were respondents in the prior case. The original permit authorized RVU to construct and operate an advance wastewater treatment facility with associated reuse/land application system (AWT facility) in a proposed mixed-use development on St. George Island in Franklin County, Florida. Mr. Ben Johnson was the owner of the proposed development and the principal of RVU when DEP issued the original permit. DEP issued the original permit for five years with an expiration date of March 1, 2001. The instant case involves a renewal of the original permit, currently designated as Permit No. FLA010069-002 (the Permit). Since the issuance of the original permit, the AWT facility has been constructed in accordance with its plans and specifications. However, at the time of the final hearing in the instant case, the AWT facility was not operational. The original permit contained certain groundwater monitoring requirements. These requirements included baseline monitoring to collect data on certain contaminants or pollutants before the AWT facility becomes operational for comparison to groundwater monitoring after the AWT facility becomes operational. The original permit did not specify the time frame for beginning and ending the monitoring. RVU furnished DEP with a baseline groundwater monitoring report in December 1997 and June 1998. By letter dated June 15, 1998, Garlick Environmental Associates, Inc., on behalf of RVU, advised DEP that further baseline groundwater monitoring would be suspended until February 1999. RVU properly suspended the baseline groundwater monitoring because of a delay in the construction and operation of the AWT facility. At the time of the final hearing, RVU had not resumed the monitoring. The AWT facility is scheduled to become operational in incremental stages beginning with 30,000 gallons of effluent per day and increasing to 90,000 gallons of effluent per day. The monitoring requirements in the original permit and the instant Permit are sufficient to show at each stage of operation whether the AWT facility will cause an increase in contaminants in Apalachicola Bay. Because the AWT facility is not currently operational, it is not responsible for causing any pollution. In October 1999, Mr. Johnson sold the subject property to SGI Limited Partnership, a Florida limited partnership. Mr. David Wilder is a principal in SGI Limited Partnership and vice-president of SGI Utility, LLC. On February 10, 2000, RVU filed an application with DEP to transfer the original permit to SGI Utility, LLC. By letter dated February 18, 2000, DEP granted the request to transfer the permit contingent upon approval of the sale of the AWT facility by the Florida Public Service Commission (PSC). The February 18, 2000, letter states that DEP would change its records to show SGI Utility, LLC, as owner of St. George Island Resort Village domestic wastewater treatment facility. DEP's letter states that it shall be attached to and become part of domestic wastewater Permit No. FLA010069. On September 1, 2000, SGI Utility, LLC, filed an application with DEP to renew the original permit. The application indicates that SGI Utility, LLC, is the applicant/owner/operator of the AWT facility. Mr. Wilder signed the application as the authorized representative of SGI Utility, LLC. A professional engineer signed the application in his professional capacity, as well as agent for SGI Utility, LLC. The application for permit renewal contains a copy of RVU's PSC certificate. The certificate grants RVU authority to provide wastewater service in Franklin County. The application included the following implementation schedule and completion dates: (a) Begin Construction, September 2000; (b) End Construction, March 2001; (c) Begin Reuse or Disposal, March 2001; and (d) Operational Level Attained, August 2001. SGI Utility, LLC, enclosed a check payable to DEP in the amount of $1,000 with the permit renewal application. The purpose of the check was to cover review fees. By letter dated September 28, 2000, DEP requested additional information. On or about October 5, 2000, the professional engineer for SGI Utility, LLC, sent DEP copies of the signed and sealed cover page for the permit renewal application. DEP subsequently sent SGI Utility, LLC, a copy of a Notice of Application. The notice stated that DEP had received the permit renewal application from SGI Utility, LLC. DEP expected SGI Utility, LLC, to publish the notice in a newspaper of general circulation. For the reasons set forth below, SGI Utility, LLC, never published this notice. After SGI Utility, LLC, received the Notice of Application, Mr. Wilder wrote a letter dated October 11, 2000, to DEP. The letter states that SGI Utility, LLC, as the proposed transferee of the Permit, had filed the application to renew the Permit on behalf of RVU, the current holder of the Permit. Mr. Wilder advised DEP that PSC approval was still pending. The letter states as follows in relevant part: Technically, therefore, SGI Utility, LLC is not yet the holder of the permit, although it is acting with the approval of and as the agent for Resort Village Utility, Inc. Additionally, should the publication Notice be amended to show Resort Village Utility, Inc. and SGI Utility, LLC as the applicant? By letter dated November 2, 2000, Mr. Johnson confirmed that Mr. Wilder was authorized to act on behalf of RVU with respect to all matters relating to the renewal and transfer of the Permit, including without limitation, signing all applications, documents, certificates and publication notices. Mr. Johnson's letter also states as follows in relevant part: This letter will also confirm your statement to Gary Volenac, P.E., that the form of the Notice of Application for the renewal of the permit previously submitted by the Department to Mr. Wilder by letter dated October 11, 2000, is acceptable with the exception of substituting Resort Village Utility, Inc. for SGI Utility, Inc. On November 23, 2000, the Notice of Application was published in the Apalachicola Times. The notice stated that DEP announced receipt of an application from David E. Wilder for RVU to obtain a renewal of the Permit. In a letter dated December 1, 2000, DEP advised SGI Utility, LLC, that it had been 52 days since SGI Utility, LLC, had been notified of deficiencies in the Permit renewal application. DEP reminded SGI Utility, LLC, that failure to supply the requested information might result in permit denial. Petitioner wrote DEP a letter dated December 4, 2000. Petitioner was concerned that the newspaper announcement named RVU as the applicant for renewal of the Permit instead of SGI Utility, LLC. Petitioner also noted that RVU had created a small lake on the property close to the AWT facility's largest absorption bed. Petitioner was concerned that flooding after heavy rains in the absorption bed area, together with the addition of the small lake, would present a threat of pollution to Apalachicola Bay. By letter dated December 6, 2000, SGI Utility, LLC, furnished DEP with a copy of the Notice of Application that was published in the Apalachicola Times on November 23, 2000. On January 18, 2001, DEP representatives (Joe May and Dave Krieger) met with Petitioner and an employee of SGI Utility, LLC (Morris Palmer), at the site of the AWT facility. The purpose of the visit was to conduct a routine inspection in response to the Permit renewal application and to address Petitioner's concerns. At the time of the inspection, construction of the wastewater treatment plant had not commenced. Two of the absorption beds had been installed. The third absorption bed had been flagged for construction. During the meeting on January 18, 2001, Mr. May noted that there could be a concern with rainfall run-on for one of the absorption beds. Mr. May suggested the creation of a berm at the entrance to the bed along the adjacent road to prevent rainfall run-on. Mr. May concluded that implementation of the approved stormwater plan would redirect rainfall run-off from the road. Mr. May also suggested the creation of a berm for another absorption bed. A berm between dunes adjacent to that bed would prevent run-on to the bed from high tide. During the meeting, Mr. May and Petitioner discussed the impact of heavy rainfall from a tropical storm in October 1996. The storm flooded isolated areas on St. George Island, including areas in the subject development. The isolated flooding lasted for several days. However, persuasive evidence received at final hearing indicates that the 1996 storm did not cause prolonged flooding, if any, in the absorption cells. Similar concerns about flooding in the absorption cells were addressed in the original permit. The absorption cells have been designed to ensure protection to the facility in the event of a large storm. The creation of the berms recommended by Mr. May will provide additional protection from run-on resulting from heavy rainfall. After the meeting on January 18, 2001, Morris Palmer constructed all of the berms as suggested by Mr. May. During the site visit on January 18, 2001, Mr. May and Petitioner discussed the impact of a small lake or pond created by RVU in the development after issuance of the original permit. The pond is the only change to the 58-acre development that was not contemplated prior to the issuance of the original permit. The pond is more like an isolated ditch that RVU excavated below groundwater level. RVU used the sand from the ditch to elevate the ground surface in the absorption beds and for other purposes. The pond is located approximately 527 feet from the AWT plant and 478 feet from the nearest absorption bed associated with the plant. Surface water drainage, if any, from the three absorption beds is away from the pond. Persuasive evidence indicates that the pond will not interfere with the AWT facility once it begins operation. Additionally, there is no credible evidence that possible flooding in the absorption beds will cause contaminates to collect in the pond and eventually result in a discharge of pollutants to Apalachicola Bay. Petitioner presented some evidence that the pond might act as a collection point for pollution from sources such as cars, animals, and other above-ground sources. However, the greater weight of the evidence indicates that excavation of the pond will have no impact on the results of groundwater flow modeling and contaminants transport modeling introduced at the prior hearing in DOAH Case No. 95-0863. DEP appropriately referred Petitioner's other concerns about the pond to DEP's Submerged Lands and Environmental Resources Program. Neither the original permit nor the instant Permit requires an anti-degradation study. Such studies are required only in cases involving a direct discharge to surface waters. In this case, the AWT facility will not result in a surface water discharge. During the meeting on January 18, 2001, Mr. May acknowledged that ambient monitoring data showed elevated levels of hydrocarbons and nutrients. The elevated hydrocarbons may be caused by traffic on the road and at the airport located near the absorption beds. The elevated nutrient levels can only be attributed to animals. As stated above, the AWT facility is not operational; therefore, the elevated levels of hydrocarbons and nutrients are not the result of the AWT facility. On March 30, 2001, DEP issued its Notice of Intent to Issue the Permit to RVU. The Intent to Issue indicates that RVU is the applicant for an application filed by SGI Utility, LLC, and RVU. The Permit lists RVU and SGI Utility, LLC, as co- permittees. If PSC approves the transfer of RVU's certificate to SGI Utility, LLC, DEP will transfer the Permit to SGI Utility, LLC. Until then, DEP will issue the Permit in the name of both entities. The Permit sets forth requirements for continued ambient and groundwater monitoring. These requirements, like the ones in the original permit, are sufficient to provide reasonable assurances that operation of the AWT facility will comply with Chapter 62-620, Florida Administrative Code. Under cover of a letter dated May 22, 2001, Mr. Wilder provided DEP with proof that the Notice of Intent to Issue had been published in the Apalachicola Times on April 12, 2001. Mr. Wilder signed the letter as treasurer of RVU. The published notice indicates that DEP intends to issue the Permit to RVU.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That DEP enter a final order granting RVU and SGI Utility, LLC, a renewal of Permit No. FLA010069-002. DONE AND ENTERED this 28th day of February, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 28th day of February, 2002. COPIES FURNISHED: Thomas H. Adams Post Office Box 791 Eastpoint, Florida 32328 Craig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 L. Lee Williams, Jr., Esquire Williams, Gautier, Gwynn & DeLoach, P.A. 2010 Delta Boulevard Post Office Box 4128 Tallahassee, Florida 32315-4128 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact The County is a political subdivision of the State of Florida, and the Hillsborough County Sheriff's Office is a department of the County government. On or about January 18, 1989, a site evaluation for the County's application, on behalf of the Hillsborough County Sheriff's Department, for an onsite sewage disposal system (septic tank and drainfield) at Vandenberg Airport was conducted. A soil profile was prepared showing brown sand from the ground surface down 14 inches, a gray sand down another 2 inches, and a gray clay from 16 inches to 7 feet below the surface. The United States Department of Agriculture Soils Survey Book classifies the soils found at Vandenberg Airport as Manatee fine sandy loam, which is now called Chobee 10, and characterizes its permeability as "severe" with a seasonal high water table of from 0 inches at ground surface to 10 inches below the ground surface. By letter dated April 13, 1989, the Department formally denied the County's application due to the poor texture of the Chobee 10 soil and high water table found in the site evaluation, as well as the zoning of the property. This denial letter recognized the applicant's right to apply for a variance. Since the County anticipated denial of its application due to verbal indications from Departmental representatives, the County filed an application for variance with the Department on or about March 29, 1989. A Variance Review Board met and considered the County's variance application, and then recommended approval. However, the variance application was denied by the Department on June 1, 1989, due to the nature of the activities to be conducted on the site, as well as the severe soil conditions on site. The denial of the County's variance request effectively denied its application for this permit. The County has timely sought this review of the Department's denial of its application for a permit for a septic tank and drainfield system at Vandenberg Airport for use by the Sheriff's Department. The parties stipulated that the County's application included the redesign plans and report of its consulting engineers. They further stipulated that the location for which this permit is sought is imperative to the duties of the Sheriff's Department, and there is no alternative to this location without greatly increasing the response time of the Sheriff's Department to emergencies and other calls for service. The Hillsborough County Sheriff's Department has been operating its aviation unit out of a hangar at Vandenberg Airport for several years, and in March, 1989, the County entered into a ten year lease with the Hillsborough County Aviation Authority for approximately 103,126 square feet of land (2.37 acres) located at the Vandenberg Airport for a new hangar for storage and maintenance of aircraft used in conjunction with the services provided by the Sheriff's aviation unit. The site was formerly used for three residences which were served by septic tanks. This lease specifically provides that the County is responsible for obtaining all necessary permits and for securing necessary utility services for the use of this Sheriff's hangar. Thus, the Aviation Authority is not responsible for providing sewage treatment facilities for this site. The Hillsborough County Aviation Authority is not a unit within Hillsborough County government, but is an independent entity established by Special Act. The County has no control or authority over the Aviation Authority's creation of development plans, but the County may approve or disapprove these plans after they have been created by the Aviation Authority and submitted to the County. The Authority's development plans for expansion of Vandenberg Airport provide for runway expansion, taxiways, aprons and parking for aircraft and hangar expansion. As part of this expansion, the Aviation Authority has removed 51 individual septic tanks from homes located on lands which have been acquired, and which now comprise part of Vandenberg Airport. There is no record of any problems with the three residential septic tanks formerly located on this site for 25 to 30 years. The Aviation Authority's plans do not include construction of a sewage treatment plant or providing sewage treatment services in any manner other than with septic tanks, the permits for which must be obtained by its lessees. No centralized wastewater service is available to the proposed Sheriff's hangar at the Vandenberg Airport, and the closest sewer main will be more than 10,000 feet away upon its completion in 1990. The County's five year capital improvement plan does not include extension of this sewer line to the Airport. The location for the Sheriff's hangar is currently zoned SPI-AP-V, which is a special airport district zoning classification created in September, 1989, for Vandenberg Airport. In this zoning district, manufacturing, processing and assembly activities are prohibited. Retail activities are also prohibited, as well as hotels, motels, repair services, physician and dental offices, bus and train terminals, lumberyards, warehouses, publishing and printing, and rental and leasing activities. This district is to be used for public use facilities, wastewater treatment plants and lift stations, aircraft landing fields, airport and airport related activities. "Airport" activities are defined to include fuel storage and transmission facilities, hangars, aircraft service, repair and maintenance facilities. "Airport related" activities are defined as: Uses which are dependent upon proximity to the airport for effective performance, or which provide services to the airport..., including but not limited to airport maintenance facilities and associated administrative offices; sales of new and used aircraft and aircraft parts; sales of aircraft fuels, lubricants, and other aircraft supplies; ... and other airport-related uses compatible with the operation of airports for public and private use. Based upon five soil borings taken at the boundaries of, as well as within, the proposed hangar site, Darrell Hanecki, a geotechnical engineer who was accepted as an expert in engineering, found that the groundwater table was 3 to 4 feet below the existing ground surface in October and November, 1988. The seasonal high groundwater table was estimated to be approximately 12 inches above the existing ground water table at that time, but significant fluctuations in the groundwater level were anticipated due to seasonal variations in rainfall, runoff, and other site specific factors. The borings upon which Hanecki's findings are based were performed in general compliance with accepted procedures for standard field penetration tests. Hanecki concluded that the soil conditions are suitable for the proposed hangar if constructed on a shallow footing foundation with special site preparations. William Fernandez, who was accepted as an expert in civil engineering, developed a redesign of the County's septic tank and drainfield in support of its variance request in order to address concerns expressed by the Department's representatives concerning soil conditions on site. It is proposed that the septic tank and drainfield site will be excavated to a depth of 6 feet, and all clays will be removed. The site will then be backfilled with clean materials in order to allow the drainfield to percolate through these clean materials from three mounded drains which will be located in a two foot high mound constructed above the original grade. A pump will be used to lift the effluent from the tank to the drainfield. The septic tank will have a 750 gallon capacity. It is projected that 8 people will use this septic tank each day, and that each person will cause 25 gallons of sewage per day to be deposited in the system, or a total of 160 gallons of sewage per day. Only domestic wastes from the hangar restrooms will go into the system. Oils, greases and other substances used in aircraft maintenance and repair will be separated and carried to a retention pond through a system of trenches. After hearing the testimony of the County's expert witnesses about the surface water management system to be constructed on site, the Department's environmental specialist, Gary Schneider, testified that he was no longer as concerned about the possibility of oils, greases and other hazardous materials getting into the septic tank system. The County has also applied to the Southwest Florida Water Management District for a surface water management permit, and must receive that permit for this proposed hangar at Vandenberg Airport. The Department seeks to rebut the expert testimony offered by the county primarily with the testimony of Robert Blanco, supervisor of the county health department's septic tank permit program, who was neither tendered nor accepted as an expert, as well as a letter from Richard Ford, resource soil scientist with the Soil Conservation Service, dated September 18, 1989, who took one soil boring and concluded that the soil identified was poorly drained to very poorly drained Chobee loamy sand. Ford was not present to testify. Blanco agreed with Ford's conclusion, expressed in his letter, that the seasonal high water table on this site will come to the surface, or within 10 inches of the surface, for 2 to 6 months each year, causing ponding to occur. Based upon the demeanor and qualifications of the witnesses who testified at hearing, it is specifically found that the testimony offered in support of the County's application, and in particular the expert testimony of Hanecki and Fernandez, is more credible and is given greater weight than the testimony offered on behalf of the Department, particularly the testimony of Blanco. Blanco was not qualified or tendered as an expert in any field, and therefore, he was only competent to offer fact testimony. He speculated, without any supporting evidence in the record, that the septic tanks formerly on this site were not built to Code specifications and probably did not work, although there is no evidence of any complaints about these septic tanks during the 25 to 30 years they were in operation. Blanco also insisted that standardized texts describing soil types over large geographic areas are more reliable than actual soil borings on site, although he could not render an expert opinion in this regard. The letter from Ford offered by the Department was not supported by other competent, substantial, credible evidence, and in any event was based upon only one soil boring as opposed to five borings conducted by Hanecki in accordance with generally accepted practices. Therefore, it is found that the groundwater table on this site is 3 to 4 feet below the existing ground surface, and the seasonal high groundwater table is approximately 12 inches above the existing groundwater table, although it does fluctuate. It was undisputed at hearing that the soils on site are Chobee 10, which is poorly to very poorly drained soil, but the County's redesign of the proposed septic tank and drainfield reasonably and adequately accounts for, and accommodates, this condition by excavating to a depth of 6 feet and backfilling with clean materials, and by placing three drains in a mounded drainfield built two feet above the existing ground level. This redesign complies with the requirements and provisions of Chapter 10D-6, Florida Administrative Code.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order granting the application of Hillsborough County for a permit for an onsite sewage disposal system (septic tank and drainfield) for the Sheriff's Department hangar at Vandenberg Airport. DONE AND ENTERED this 24th day of October, 1989 in Tallahassee, Florida. DONALD D. CONN 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 24th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3776 Rulings on the County's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-7. Adopted in Findings 6, 7. Adopted in Finding 8. Adopted in Finding 7. Adopted in Finding 10. Adopted in Findings 9, 12. 12-13. Adopted in Findings 2, 3. Adopted in Findings 10, 12. Adopted in Findings 3, 5, 10. Adopted in Findings 3, 4. Rulings on the Department's Proposed Findings of Fact: Adopted in Finding 6. Adopted in Finding 8. 3-4. Adopted in Finding 2. Adopted in Finding 11; Rejected in Finding 12. Rejected in Finding 12 as irrelevant and immaterial since the classification of the soils on site was not disputed at hearing. Adopted in Finding 5. Adopted and Rejected in part in Finding 12. COPIES FURNISHED: Michael J. Morrison, Esquire Assistant County Attorney 725 East Kennedy Boulevard Tampa, Florida 33602 Raymond R. Deckert, Esquire W. T. Edwards Facility 4000 West Buffalo Avenue Room 500 Tampa, Florida 33614 John Miller, General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
