96-001993 Department Of Transportation vs. Bjm Associates, Inc. Status: Closed Recommended Order on Monday, February 24, 1997.

Summary: Respondent's stormwater flows into Department of Transportation's retention pond; drainage connection permit is required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA DEPARTMENT )

OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1993

)

BJM ASSOCIATES, INC., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, Mary Clark, held

a formal hearing in the above-styled case on December 20, 1996.

The judge and the parties participated by video conference from

Tallahassee, Florida. The witnesses and court reporter

participated from Orlando, Florida.

APPEARANCES

For Petitioner: Francine M. Ffolkes, Esquire

Department of Transportation

Burns Building, Mail Station 58

608 Suwannee Street

Ta llahassee, Florida 32399-0458

For Respondent: Bernard J. Martin, Esquire

506 Wymore Road

Winter Park, Florida 32789

STATEMENT OF THE ISSUES

The issues for disposition are whether BJM Associates, Inc.

is required to apply for and obtain a drainage connection permit

pursuant to rule 14-86, Florida Administrative Code, and if so,

whether BJM Associates, Inc., has failed to obtain that permit.

PRELIMINARY STATEMENT

On November 17, 1995, Petitioner, Department of

Transportation (DOT), issued a notice of violation and notice to

show cause to Rosetta Villas, c/o BJM Associates, Inc., Winter

Park, Florida, alleging that the named respondent was required to

have a drainage connection permit, but had not applied for one.

Rosetta Villas, through BJM Associates, Inc., requested a formal

administrative hearing and the case was referred to the Division

of Administrative Hearings on April 26 1996.

At the hearing DOT presented the following witnesses:

Richard Bell, George Merrick and Tony Bryan. DOT offered no

exhibits.

Respondent, BJM Associates, Inc., presented the testimony of

Bernard Martin, Larry Roberts, Larry Smith and Vicki Lee Parker.

Respondent’s exhibits nos. 1-10 and 12-23 have been received in

evidence. Respondent’s exhibit no. 24, a videotape of the site

and Mr. Martin’s explanation, is also received in evidence, over

Petitioner’s objection. (While viewing this exhibit, the Judge

accidentally deleted a couple of minutes of the opening. There

is ample portion left to portray the site, however.)

On January 4, 1997, Respondent sent to the Administrative

Law Judge a letter with an accompanying sketch of a ditch, with

copies to opposing counsel as was appropriate. In response, Ms.

Ffolkes filed an objection to the sketch and reopening the

evidence. The sketch, which purports to depict dimensions of the

ditch at the south perimeter of Rose Pointe, is irrelevant to the

issue of whether Respondent needs a drainage connection permit,

and is rejected for that reason. The size of the ditch is not

controverted in this proceeding.

The transcript of hearing was filed on January 13, 1997;

Respondent filed a proposed recommended order on January 27,

1997.

FINDINGS OF FACT

1. Respondent, BJM Associates, Inc. (BJM) is the owner and

developer of Rosetta Villas Subdivision, located in Orange

County, Florida, (Respondent’s prehearing Statement)

2. Petitioner, Department of Transportation (D0T)

purchased an adjacent parcel, including a retention pond, “Pond

A”, in 1991, in anticipation of a road-improvement or extension

project for Maitland Boulevard. The pond was purchased from Rose

Industrial Park, a permitted development also adjacent to the

pond.

3. Rosetta Villas Subdivision received Orange County

subdivision approval in 1986 and 1988, and a St. John’s River

Water Management District permit for stormwater facilities in

1991. Lots have been platted, streets have been constructed and

homes have been sold.

4. Rosetta Villas Subdivision includes a water retention

pond on-site, built in 1995. There is a pipe from that pond

which discharges water into a ditch that is partially within the

DOT right of way. The ditch has a 30-inch concrete pipe which

discharges into DOT’s Pond A.

5. There is some indication in the record that a diversion

ditch was part of an over-all permit for the Rose Industrial Park

development prior to DOT’s purchase of Pond A. The diversion

ditch was intended to convey stormwater around, and not into Pond

A. The diversion ditch south of Rosetta Villas and north of Pond

A does not convey Rosetta Villas’ run off around Pond A. Instead

the 30-inch concrete pipe conveys Rosetta Villas’ overflow water

into Pond A.

6. The 30-inch concrete pipe was constructed by BJM in

1995 after an existing, much smaller, pipe became clogged. BJM

contends that the pipe was replaced at the direction of someone

from DOT. While that contention is not disputed, nothing in this

record supports any suggestion that DOT is now estopped from

requiring a drainage connection permit. At hearing BJM’s own

expert witness opined that the 30-inch pipe which now discharges

into Pond A requires a connection permit. (Transcript, p. 130)

7. BJM does not have that permit and, after meetings and

extensive discussion with DOT staff, has not applied for the

permit.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction in this matter pursuant to section 120.57(1),

Florida Statutes.

9. Rule Chapter 14-86, Florida Administrative Code,

governs DOT’s requirements for drainage connection permits. Rule

14-86.001 provides:

14-86.001 Purpose . The purpose of this

rule chapter is to ensure safe conditions and

the integrity of the Department’s

transportation facilities and to prevent an

unreasonable burden on lower properties by

providing standards and procedures for

drainage connections from the properties

adjacent to the Department’s right-of-way.

All Department actions taken pursuant to this

rule chapter shall be in accordance with

Section 120, Florida Statutes.

10. “Drainage Connection” is defined in rule 14-86.002(4),

Florida Administrative Code,:

(4) “Drainage Connection” means any

structure, pipe, culvert, device, paved or

unpaved area, swale, ditch, canal, or other

feature whether natural or created which is

used or functions as a link or otherwise

conveys stormwater runoff or other surface

water discharge from the adjacent property to

the Department’s facility.

11. “Improvement” is defined in rule 14-86.002(8), Florida

Administrative Code,:

(8) “Improvement” means any man-made

change to property adjacent to the

Department’s right-of-way made after the

effective date of this rule chapter.

[11/12/86]

12. Improvements that are not exempted in rule 14-

86.003(1), Florida Administrative Code, must have a drainage

connection permit as provided in rule 14-86.003(2), Florida

Administrative Code. Exemptions include single family

residential improvements that are not part of a larger common

plan of improvement or sale; agricultural or silviculture

improvements; and other plans of improvement, subject to

requirements as to maximum impervious area, no work in a DOT

right of way and location in a watershed which has a positive

outlet. BJM has failed to prove its entitlement to any of the

exemptions; DOT has proved that a permit is required and has not

been obtained.

13. DOT will accept surface water permits that are issued

by a water management district or delegated local government

provided that the existing permit is based on requirements equal

to or more stringent than those described in DOT’s rule 14-

86.003, Florida Administrative Code. (See rule 14-86.004(6),

Florida Administrative Code.)

14. BJM has presented in this proceeding detailed drawings,

engineering calculations, maps and documents regarding its

existing permits and permits issued to Rose Industrial Park prior

to DOT’s purchase of Pond A. That data and evidence are relevant

to conditions for the required permit, but not whether a permit

is required. BJM’s representative needs to apply for the permit,

and if the permit is denied or granted with conditions, BJM will

be given a new “point of entry” to contest that agency action or

request a waiver or variance, pursuant to Chapter 120, Florida

Statutes (1996). 1/

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

that the Department of Transportation issue its Final Order

requiring BJM to apply for a drainage connection permit pursuant

to chapter 14-86, Florida Administrative Code.

DONE and ORDERED this 24 th day of February 1997 in

Tallahassee, Leon County, Florida.

___________________________________

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the

Division of Administrative Hearings th

this 24 day of February 1997.

ENDDNOTE

1/ BJM presented extensive evidence regarding the diversion

ditch or swale and its intended purpose. It may be possible for

BJM to redirect its out-flow however, the current status of the

drainage system.

COPIES FURNISHED:

Francine M. Ffolkes, Esquire

Department of Transportation

Burns Building, Mail Station 58

608 Suwannee Street

Tallahassee, Florida 32399-0458

Bernard J. Martin, Esquire

506 Wymore Road

Winter Park, Florida 32789

Pamela Leslie, General Counsel

562 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Ben G. Watts, Secretary

Attn.: Diedre Grubbs

Haydon Burns Building, MS 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.