96-002753 J. O. Stone, As Trustee Of The J. O. Stone Revocable Trust vs. Department Of Transportation Status: Closed Recommended Order on Thursday, January 30, 1997.

Summary: Landowner has not shown his project is exempt from requirement for drainage access permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J. O. STONE as trustee of the )

J. O. Stone Revocable Trust )

dated 9/26/78, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2753

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida on

December 11, 1996, before Arnold H. Pollock, an Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Barber, Es quire

Alford, Barber and Mariani

1550 South Highland Avenue, Suite B

Clearwater, Florida 34616

Michael A. Hanson, Esquire

1207 North Himes Avenue

Tampa, Florida 33607

For Respondent: Francine M. Ffolkes, Esquire

Department of Transportation

605 Suwannee Street, Mail Station58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether

Petitioner should be granted an access permit free from the

drainage permitting requirements of Chapter 14-86, Florida

Administrative Code , or whether the terms and conditions proposed

in the Notice of Intent to Issue should be required for project

number 94-A-799-0019, located on the southwest corner of the

intersection of U.S. Highway 19 and State Road 686 in Pinellas

County, Florida.

PRELIMINARY STATEMENT

By Notic e of Intent To Issue Permit dated February 28, 1996,

the Department of Transportation notified Petitioner, J. O.

Stone, Trustee of the J. O. Stone Revocable Trust dated September

26, 1978, that it intended to issue the access connection permit

for the project described above, subject to denial of the

applicant’s request for an exemption to the Department’s

requirement for a drainage connection permit which, according to

the Department’s interpretation of Rule 14-86.003(2), Florida

Administrative Code , was required for the project. Thereafter,

by letter dated March 26, 1996, Petitioner requested formal

hearing on the denial of the exemption, and this hearing ensued.

At the hearing, Petitioner presented the testimony of Sandy

Lloveras, Michael Scott Lloveras and Thomas G. Radcliffe, all

professional engineers, and introduced Petitioner’s Exhibits One

through Twelve. Respondent presented the testimony of Juan

Carlos Lopez-Paniagua, District Engineer for the relevant

Department District and an expert in civil engineering with an

emphasis in hydrology and hydraulics. The Department did not

offer or introduce any exhibits.

A transcript of the proceedings was furnished. Subsequent

to the receipt thereof, counsel for both parties submitted

Proposed Findings of Fact and written argument which have been

carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the

Department of Transportation has been the state agency

responsible for the issuance of access connection permits for the

access to and from property to the roads maintained by the State

of Florida. It is also responsible for the promulgation and

enforcement of rules governing the application for an issuance of

drainage connection permits regarding those roads and properties.

2. Petitioner, J. O. Stone, as Trustee of the J. O. Stone

Revocable trust dated 9/26/78, owns and proposes to develop a

parcel of property located on the southwest corner of the

intersection of US Highway 19 and State Road 686, (East Bay

Drive), in Pinellas County, Florida. The property in question is

a piece of commercial land approximately six acres in area.

3. In September 1994, Petitioner applied to the Department

for an access management permit to allow proposed commercial

establishments proposed to be built on that property to be

connected to the state highway system. The development proposal

called for construction of two restaurants and parking sufficient

to support them.

4. The property in issue was previously occupied by

restaurants, a gasoline station and business facilities which had

access to the abutting roads. Petitioner purchased the property

more than twenty-five years ago and it is now vacant land.

5. Petitioner did not seek a drainage connection permit at

the time he requested the access management permit, and resists

seeking one now because he believes the project in issue is

exempt from the requirement for such a drainage connection

permit. In fact, at the same time the Petitioner submitted his

access connection permit request, he also submitted a formal

request in writing to the Department requesting a confirmation of

exemption from the drainage permit criteria under Chapter 14-86.

The Department never acted on this secondary request until it

included the requirement for a drainage permit as a condition of

the access permit intent to issue. By virtue of its preparation

of an intent to issue, with conditions, the Department,

Petitioner claims, has indicated its intention to issue the

requested access management permit conditioned upon the

application for an approval of the drainage connection permit.

6. There is some evidence that Petitioner’s staff was

advised by Department officials that under the Department’s

interpretation of the pertinent rules, the project does not meet

all three criteria for exemption outlined in the pertinent rule,

but at no time, according to Petitioner, was he ever given any

specifics regarding how the Department considers the relevant

criteria are not met by his proposal.

7. The property is bordered on the east by the Department’s

right-of-way for US Highway 19, and on the north by the right-of-

way for State Road 686. On the west and south the property is

bordered by a branch of Long Branch Creek Channel 2, which flows

generally to the northeast to Highway 19, through a box culvert

under that highway, and then, variably, southeast, east and

northeast until it empties into Tampa Bay.

8. The September 1994 application calls for the

construction of three driveways from and to the property for

restaurant development. Two of the driveways would connect with

State Road 686, (the western access would be for right out

traffic only and the eastern one would be for right in traffic

only), and one would connect with U.S. Highway 19. This latter

connection would be for both in and out traffic. Though the

original application was accompanied by a request for an

exemption from the requirement for a drainage connection permit,

no mention was made regarding this ancillary issue during any of

the parties’ negotiations and discussions until just before the

issuance of the notice of intent.

9. Consistent with his application for access management

permit from the Department, Petitioner also sought required

permits from other entities such as the Southwest Florida Water

Management District, and Pinellas County. These permits have

been granted.

10. In November 1995, Petitioner received a letter from the

Department which indicated that after review by its drainage

staff, a determination was made that the proposed project was not

exempt from the requirement for a drainage connection permit.

This determination was made on the basis of the Department’s

interpretation of the provisions of the pertinent rule that was

different from that of the Petitioner. There appeared then, and

appears now, to be no dispute regarding the underlying facts of

the case.

11. Chapter 14-86(1)(c), Florida Administrative Code , lists

three criteria for granting an exemption, all of which must be

met to permit the issuance of an exemption from the requirements

for a drainage access permit.

12. The first of these provides that no more than 5,000

feet of impervious area may drain to the property in the pre-

developed condition. With a small exception, this property

drains away from the Departments right-of-way, so Petitioner

contends his project meets that criteria.

13. The second prohibits any work within the right-of-way

that will create or alter a drainage connection, and Petitioner

contends that since the only work to be done within the right-of-

way area is the installation of the three driveways, the project

also meets that criteria as well. The third requirement is that

the property be located in a watershed which has a positive

outfall. Since this property is located in the Long Branch Creek

basin, which outfalls to Tampa Bay and the Gulf of Mexico,

Petitioner contends it meets that criteria as well, thereby

qualifying the project for the exemption.

14. A survey of the property made in 1 995 indicated that

with the minor exception of approximately 1,000 or so square feet

of paved area in the extreme northeast corner of the parcel,

which constitutes a portion of the State’s road construction, all

of the natural drainage on the property is from the northeast to

the southwest or west, directly away from the State’s right-of

way. Planned near-term development of the parcel calls for the

approximate northern half to be used for the construction of two

restaurants and related parking. The two-way access onto the

U.S. Highway 19 right-of-way is to be located at the southern end

of the parking lots, approximately half way down the property.

In the southern half of the property, more to the west,

Petitioner proposed to construct a 12,000 square foot holding

pond.

15. Communications between Petitioner and the Department

show that the Department understands that the property drains

into the Long Branch creek Channel Two but has taken the position

that the holding pond will also drain in the channel which

ultimately, approximately 285 feet downstream from the drainage

connection, crosses the state right-of-way and through the box

culvert under U.S. Highway 19. The Department considers this a

connection discharge which requires a permit, and Petitioner

considers it to be a situation which qualifies for an exemption

from the permitting requirements.

16. This issue first became a matter for discussion between

the parties in November 1995. By letter dated December 8, 1995,

the Department advised Petitioner that the link-up described

disqualifies the project from an exemption. A meeting of the

parties was subsequently held in January 1996, at which

Petitioner provided additional calculations and evidence of other

similar situations where the agency did not require the drainage

permit, but the Department remains adamant in its position.

17. In February 1996, the Department wrote to Petitioner

restating its position and demanding the project include a

drainage connection permit. On March 5, 1996, the Department

issued its Notice of Intent with the condition that the

Petitioner obtain a drainage connection permit prior to the

issuance of the access connection permit. Petitioner cannot

accept this condition, contending that the requirement for the

drainage connection permit would have an unacceptable impact on

the project.

18. Petitioner’s major objection to the requirement for a

drainage connection permit is financially based. As was

previously noted, the project as currently proposed by Petitioner

would call for a 12,000 square foot holding pond. When the

remainder of the property is developed according to plan, the

holding pond will be increased to 18,000 square feet. However,

under the criteria imposed by the Department for a drainage

connection permit, the size of the holding pond to accommodate

the proposed future development would require increase to 30,000

square feet, an increase of 12,000 square feet, (approximately ¼

acre), of prime commercial property which would not be available

for productive development. No figures were provided to place a

dollar value on that impact at current or future rates.

19. The Department’s concerns which form the basis for the

drainage connection permit requirement relate to protection of

the state right-of-way and both downstream and upstream property

owners from flooding due to excessive run-off. Petitioner argues

that the Water Management District permitting criteria regarding

run-off consider the situations most likely to occur. The

Department admits that Petitioner has met the requirements of the

Southwest Florida Water Management District, but notes that

Department criteria are substantially different and are more

stringent. Many more scenarios are considered by the Department

than by the Water Management District.

20. The Department contends that while in the instant case

the connection is not directly to the right-of-way, it

nonetheless drains to a right-of-way, and the potential for

flooding at the Department’s right-of-way, as the result of

drainage from the property in question in the event of a major

storm, justifies the permit requirements.

21. Mr. Radcliffe, a registered civil engineer employed by

Petitioner’s engineering design company, disputes the

Department’s concerns, asserting that the water flow increase in

Long Branch Creek Channel Two at the box culvert under US Highway

19 from this project would peak well before the major flow from

run-off upstream from the connection would get there. In his

opinion, there is little chance that the instant project would

have any impact on run-off to the state right-of-way. Therefore,

little benefit would be obtained from applying the more stringent

state requirement as opposed to the more liberal water management

district criteria.

22. Mr. Lopez-Paniagua claims that Petitioner does not meet

criteria number one, as outlined in Rule 14-86.003(1), Florida

Administrative Code , because the project has about 12,000 square

feet of impervious area. Petitioner, he asserts, has not proven

to the Department’s satisfaction that its drainage meets the

criteria. Here, the project drains to a ditch at a point which

is approximately 285 feet from the right-of-way for U.S. 19. It

is Department policy to always review projects for drainage

permit requirements, which projects are exempted if the review

shows the project will not adversely affect the state highway

system or the downstream property owners. Here, the Department

contends, no such showing has been made.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Section 120.57(1), Florida Statutes .

24. Under the provisions of Sections 331.1825(1) and

335.185(1), Florida Statutes , the Department of Transportation is

authorized to require an access permit for construction of a

connection to the State Highway System and may require any

conditions reasonably necessary to carry out the conditions of

the Access Management Act. Consistent therewith, the Department

has promulgated Rule 14-86, Florida Administrative Code which, at

14-86.007(5) outlines the standard conditions which apply to all

access connection permits. Included within this section is that

provision which requires “compliance with drainage requirements

in rule chapter 14-86, Florida Administrative Code ”, and the

Department is charged to ”provid[e] standards and procedures for

drainage connections from the properties adjacent to the

Department’s right-of-way.

25. A drainage connection is defined in Rule 14-86.002 (4),

Florida Administrative Code as:

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. A

drainage connection is literally anything that

stormwater can run on or through.

26. The evidence clea rly establishes that Petitioner’s

property is located adjacent to the Department’s right-of-way for

U.S. Highway 19, and that Long Branch Channel Number Two is a

natural feature of that property which conveys water to the box

culverts in the right-of-way. In fact, the Department’s evidence

shows that in its existing condition, Channel Number Two brings

the majority of the storm water which falls on Petitioner’s

property, along with other water originating both above and below

Petitioner’s property to the Department’s right-of-way for U.S.

Highway 19.

27. It is the Department’s concern, that when the

stormwater flow from the Petitioner’s property is joined with

that from properties above and below the Petitioner’s property,

it could, if not properly governed, create drainage problems in

the U.S. 19 Right-of-way.

28. Petitioner bears the burden of proof to establish, by a

preponderance of the evidence, that his project is entitled to

the exemption. The testimony of Petitioner’s experts, though

impressive, was not shown to be based on any empirical data, and

constitutes unsupported conclusory opinion. As such, it is not

persuasive. Therefore, even though the water flow is not

directly to the adjacent right-of-way, in light of the fact that

it ultimately ends up there, the first criteria for exemption is

not met and the drainage connection permit application is

required. The drainage through Channel No. Two to the right-of-

way appears to be natural and not constructed. Therefore, that

provision of the Department’s drainage handbook which states that

any project does not drain naturally onto the Department’s right-

of-way does not require a drainage connection permit is not

applicable here.

29. To be sure, it would appear that to conform to the

requirements established for a drainage connection permit, a

significant portion of the Petitioner’s remaining property would

be lost to development. The resultant economic cost to

Petitioner, while considerable, is not pertinent to the issue of

the need for a drainage access permit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department of Transportation

enter a Final Order denying Petitioner’s request for an exemption

from the drainage connection permitting requirements of Chapter

14-86, Florida Administrative Code .

DONE and ENTERED this 30th day of January, 1997, in

Tallahassee, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of January, 1997.

COPIES FURNISHED :

Francine M. Ffolkes, Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS-58

Tallahassee, Florida 32399-0458

Charles F. Barber, Esquire

Alford, Barber & Mariani

1550 South Highland Avenue

Clearwater, Florida 34614

Michael A. Hanson, Esquire

1207 North Himes Avenue

Tampa, Florida 33607

Ben G. Watts, Secretary

Attention: Diedre Grubbs, M.S. 58

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie

General Counsel

Department of Transportation

562 Haydon Burns Building

605 Suwannee Street, Suite 562

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

fifteen 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.