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.
Recommended Order on Thursday, January 30, 1997.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8J. O. STONE as trustee of the )
16J. O. Stone Revocable Trust )
22dated 9/26/78, )
25)
26Petitioner, )
28)
29vs. ) CASE NO. 96-2753
34)
35DEPARTMENT OF TRANSPORTATION, )
39)
40Respondent. )
42___________________________________)
43RECOMMENDED ORDER
45A hearing was held in this case in Tallahassee, Florida on
56December 11, 1996, before Arnold H. Pollock, an Administrative
65Law Judge with the Division of Administrative Hearings.
73APPEARANCES
74For Petitioner: Charles F. Barber, Es quire
81Alford, Barber and Mariani
851550 South Highland Avenue, Suite B
91Clearwater, Florida 34616
94Michael A. Hanson, Esquire
981207 North Himes Avenue
102Tampa, Florida 33607
105For Respondent: Francine M. Ffolkes, Esquire
111Department of Transportation
114605 Suwannee Street, Mail Station58
119Tallahassee, Florida 32399-0458
122STATEMENT OF THE ISSUE
126The issue for consideration in this case is whether
135Petitioner should be granted an access permit free from the
145drainage permitting requirements of Chapter 14-86, Florida
152Administrative Code , or whether the terms and conditions proposed
161in the Notice of Intent to Issue should be required for project
173number 94-A-799-0019, located on the southwest corner of the
182intersection of U.S. Highway 19 and State Road 686 in Pinellas
193County, Florida.
195PRELIMINARY STATEMENT
197By Notic e of Intent To Issue Permit dated February 28, 1996,
209the Department of Transportation notified Petitioner, J. O.
217Stone, Trustee of the J. O. Stone Revocable Trust dated September
22826, 1978, that it intended to issue the access connection permit
239for the project described above, subject to denial of the
249applicants request for an exemption to the Departments
257requirement for a drainage connection permit which, according to
266the Departments interpretation of Rule 14-86.003(2), Florida
273Administrative Code , was required for the project. Thereafter,
281by letter dated March 26, 1996, Petitioner requested formal
290hearing on the denial of the exemption, and this hearing ensued.
301At the hearing, Petitioner presented the testimony of Sandy
310Lloveras, Michael Scott Lloveras and Thomas G. Radcliffe, all
319professional engineers, and introduced Petitioners Exhibits One
326through Twelve. Respondent presented the testimony of Juan
334Carlos Lopez-Paniagua, District Engineer for the relevant
341Department District and an expert in civil engineering with an
351emphasis in hydrology and hydraulics. The Department did not
360offer or introduce any exhibits.
365A transcript of the proceedings was furnished. Subsequent
373to the receipt thereof, counsel for both parties submitted
382Proposed Findings of Fact and written argument which have been
392carefully considered in the preparation of this Recommended
400Order.
401FINDINGS OF FACT
4041. At all times pertinent to the issues herein, the
414Department of Transportation has been the state agency
422responsible for the issuance of access connection permits for the
432access to and from property to the roads maintained by the State
444of Florida. It is also responsible for the promulgation and
454enforcement of rules governing the application for an issuance of
464drainage connection permits regarding those roads and properties.
4722. Petitioner, J. O. Stone, as Trustee of the J. O. Stone
484Revocable trust dated 9/26/78, owns and proposes to develop a
494parcel of property located on the southwest corner of the
504intersection of US Highway 19 and State Road 686, (East Bay
515Drive), in Pinellas County, Florida. The property in question is
525a piece of commercial land approximately six acres in area.
5353. In September 1994, Petitioner applied to the Department
544for an access management permit to allow proposed commercial
553establishments proposed to be built on that property to be
563connected to the state highway system. The development proposal
572called for construction of two restaurants and parking sufficient
581to support them.
5844. The property in issue was previously occupied by
593restaurants, a gasoline station and business facilities which had
602access to the abutting roads. Petitioner purchased the property
611more than twenty-five years ago and it is now vacant land.
6225. Petitioner did not seek a drainage connection permit at
632the time he requested the access management permit, and resists
642seeking one now because he believes the project in issue is
653exempt from the requirement for such a drainage connection
662permit. In fact, at the same time the Petitioner submitted his
673access connection permit request, he also submitted a formal
682request in writing to the Department requesting a confirmation of
692exemption from the drainage permit criteria under Chapter 14-86.
701The Department never acted on this secondary request until it
711included the requirement for a drainage permit as a condition of
722the access permit intent to issue. By virtue of its preparation
733of an intent to issue, with conditions, the Department,
742Petitioner claims, has indicated its intention to issue the
751requested access management permit conditioned upon the
758application for an approval of the drainage connection permit.
7676. There is some evidence that Petitioners staff was
776advised by Department officials that under the Departments
784interpretation of the pertinent rules, the project does not meet
794all three criteria for exemption outlined in the pertinent rule,
804but at no time, according to Petitioner, was he ever given any
816specifics regarding how the Department considers the relevant
824criteria are not met by his proposal.
8317. The property is bordered on the east by the Departments
842right-of-way for US Highway 19, and on the north by the right-of-
854way for State Road 686. On the west and south the property is
867bordered by a branch of Long Branch Creek Channel 2, which flows
879generally to the northeast to Highway 19, through a box culvert
890under that highway, and then, variably, southeast, east and
899northeast until it empties into Tampa Bay.
9068. The September 1994 application calls for the
914construction of three driveways from and to the property for
924restaurant development. Two of the driveways would connect with
933State Road 686, (the western access would be for right out
944traffic only and the eastern one would be for right in traffic
956only), and one would connect with U.S. Highway 19. This latter
967connection would be for both in and out traffic. Though the
978original application was accompanied by a request for an
987exemption from the requirement for a drainage connection permit,
996no mention was made regarding this ancillary issue during any of
1007the parties negotiations and discussions until just before the
1016issuance of the notice of intent.
10229. Consistent with his application for access management
1030permit from the Department, Petitioner also sought required
1038permits from other entities such as the Southwest Florida Water
1048Management District, and Pinellas County. These permits have
1056been granted.
105810. In November 1995, Petitioner received a letter from the
1068Department which indicated that after review by its drainage
1077staff, a determination was made that the proposed project was not
1088exempt from the requirement for a drainage connection permit.
1097This determination was made on the basis of the Departments
1107interpretation of the provisions of the pertinent rule that was
1117different from that of the Petitioner. There appeared then, and
1127appears now, to be no dispute regarding the underlying facts of
1138the case.
114011. Chapter 14-86(1)(c), Florida Administrative Code , lists
1147three criteria for granting an exemption, all of which must be
1158met to permit the issuance of an exemption from the requirements
1169for a drainage access permit.
117412. The first of these provides that no more than 5,000
1186feet of impervious area may drain to the property in the pre-
1198developed condition. With a small exception, this property
1206drains away from the Departments right-of-way, so Petitioner
1214contends his project meets that criteria.
122013. The second prohibits any work within the right-of-way
1229that will create or alter a drainage connection, and Petitioner
1239contends that since the only work to be done within the right-of-
1251way area is the installation of the three driveways, the project
1262also meets that criteria as well. The third requirement is that
1273the property be located in a watershed which has a positive
1284outfall. Since this property is located in the Long Branch Creek
1295basin, which outfalls to Tampa Bay and the Gulf of Mexico,
1306Petitioner contends it meets that criteria as well, thereby
1315qualifying the project for the exemption.
132114. A survey of the property made in 1 995 indicated that
1333with the minor exception of approximately 1,000 or so square feet
1345of paved area in the extreme northeast corner of the parcel,
1356which constitutes a portion of the States road construction, all
1366of the natural drainage on the property is from the northeast to
1378the southwest or west, directly away from the States right-of
1388way. Planned near-term development of the parcel calls for the
1398approximate northern half to be used for the construction of two
1409restaurants and related parking. The two-way access onto the
1418U.S. Highway 19 right-of-way is to be located at the southern end
1430of the parking lots, approximately half way down the property.
1440In the southern half of the property, more to the west,
1451Petitioner proposed to construct a 12,000 square foot holding
1461pond.
146215. Communications between Petitioner and the Department
1469show that the Department understands that the property drains
1478into the Long Branch creek Channel Two but has taken the position
1490that the holding pond will also drain in the channel which
1501ultimately, approximately 285 feet downstream from the drainage
1509connection, crosses the state right-of-way and through the box
1518culvert under U.S. Highway 19. The Department considers this a
1528connection discharge which requires a permit, and Petitioner
1536considers it to be a situation which qualifies for an exemption
1547from the permitting requirements.
155116. This issue first became a matter for discussion between
1561the parties in November 1995. By letter dated December 8, 1995,
1572the Department advised Petitioner that the link-up described
1580disqualifies the project from an exemption. A meeting of the
1590parties was subsequently held in January 1996, at which
1599Petitioner provided additional calculations and evidence of other
1607similar situations where the agency did not require the drainage
1617permit, but the Department remains adamant in its position.
162617. In February 1996, the Department wrote to Petitioner
1635restating its position and demanding the project include a
1644drainage connection permit. On March 5, 1996, the Department
1653issued its Notice of Intent with the condition that the
1663Petitioner obtain a drainage connection permit prior to the
1672issuance of the access connection permit. Petitioner cannot
1680accept this condition, contending that the requirement for the
1689drainage connection permit would have an unacceptable impact on
1698the project.
170018. Petitioners major objection to the requirement for a
1709drainage connection permit is financially based. As was
1717previously noted, the project as currently proposed by Petitioner
1726would call for a 12,000 square foot holding pond. When the
1738remainder of the property is developed according to plan, the
1748holding pond will be increased to 18,000 square feet. However,
1759under the criteria imposed by the Department for a drainage
1769connection permit, the size of the holding pond to accommodate
1779the proposed future development would require increase to 30,000
1789square feet, an increase of 12,000 square feet, (approximately ¼
1800acre), of prime commercial property which would not be available
1810for productive development. No figures were provided to place a
1820dollar value on that impact at current or future rates.
183019. The Departments concerns which form the basis for the
1840drainage connection permit requirement relate to protection of
1848the state right-of-way and both downstream and upstream property
1857owners from flooding due to excessive run-off. Petitioner argues
1866that the Water Management District permitting criteria regarding
1874run-off consider the situations most likely to occur. The
1883Department admits that Petitioner has met the requirements of the
1893Southwest Florida Water Management District, but notes that
1901Department criteria are substantially different and are more
1909stringent. Many more scenarios are considered by the Department
1918than by the Water Management District.
192420. The Department contends that while in the instant case
1934the connection is not directly to the right-of-way, it
1943nonetheless drains to a right-of-way, and the potential for
1952flooding at the Departments right-of-way, as the result of
1961drainage from the property in question in the event of a major
1973storm, justifies the permit requirements.
197821. Mr. Radcliffe, a registered civil engineer employed by
1987Petitioners engineering design company, disputes the
1993Departments concerns, asserting that the water flow increase in
2002Long Branch Creek Channel Two at the box culvert under US Highway
201419 from this project would peak well before the major flow from
2026run-off upstream from the connection would get there. In his
2036opinion, there is little chance that the instant project would
2046have any impact on run-off to the state right-of-way. Therefore,
2056little benefit would be obtained from applying the more stringent
2066state requirement as opposed to the more liberal water management
2076district criteria.
207822. Mr. Lopez-Paniagua claims that Petitioner does not meet
2087criteria number one, as outlined in Rule 14-86.003(1), Florida
2096Administrative Code , because the project has about 12,000 square
2106feet of impervious area. Petitioner, he asserts, has not proven
2116to the Departments satisfaction that its drainage meets the
2125criteria. Here, the project drains to a ditch at a point which
2137is approximately 285 feet from the right-of-way for U.S. 19. It
2148is Department policy to always review projects for drainage
2157permit requirements, which projects are exempted if the review
2166shows the project will not adversely affect the state highway
2176system or the downstream property owners. Here, the Department
2185contends, no such showing has been made.
2192CONCLUSIONS OF LAW
219523. The Division of Administrative Hearings has
2202jurisdiction over the parties and the subject matter in this
2212case. Section 120.57(1), Florida Statutes .
221824. Under the provisions of Sections 331.1825(1) and
2226335.185(1), Florida Statutes , the Department of Transportation is
2234authorized to require an access permit for construction of a
2244connection to the State Highway System and may require any
2254conditions reasonably necessary to carry out the conditions of
2263the Access Management Act. Consistent therewith, the Department
2271has promulgated Rule 14-86, Florida Administrative Code which, at
228014-86.007(5) outlines the standard conditions which apply to all
2289access connection permits. Included within this section is that
2298provision which requires compliance with drainage requirements
2305in rule chapter 14-86, Florida Administrative Code , and the
2315Department is charged to provid[e] standards and procedures for
2324drainage connections from the properties adjacent to the
2332Departments right-of-way.
233425. A drainage connection is defined in Rule 14-86.002 (4),
2344Florida Administrative Code as:
2348any structure, pipe, culvert, device, paved or
2355unpaved area, swale, ditch, canal, or other feature
2363whether natural or created, which is used or
2371functions as a link or otherwise conveys stormwater
2379runoff or other surface water discharge from the
2387adjacent property to the Departments facility. A
2394drainage connection is literally anything that
2400stormwater can run on or through.
240626. The evidence clea rly establishes that Petitioners
2414property is located adjacent to the Departments right-of-way for
2423U.S. Highway 19, and that Long Branch Channel Number Two is a
2435natural feature of that property which conveys water to the box
2446culverts in the right-of-way. In fact, the Departments evidence
2455shows that in its existing condition, Channel Number Two brings
2465the majority of the storm water which falls on Petitioners
2475property, along with other water originating both above and below
2485Petitioners property to the Departments right-of-way for U.S.
2493Highway 19.
249527. It is the Departments concern, that when the
2504stormwater flow from the Petitioners property is joined with
2513that from properties above and below the Petitioners property,
2522it could, if not properly governed, create drainage problems in
2532the U.S. 19 Right-of-way.
253628. Petitioner bears the burden of proof to establish, by a
2547preponderance of the evidence, that his project is entitled to
2557the exemption. The testimony of Petitioners experts, though
2565impressive, was not shown to be based on any empirical data, and
2577constitutes unsupported conclusory opinion. As such, it is not
2586persuasive. Therefore, even though the water flow is not
2595directly to the adjacent right-of-way, in light of the fact that
2606it ultimately ends up there, the first criteria for exemption is
2617not met and the drainage connection permit application is
2626required. The drainage through Channel No. Two to the right-of-
2636way appears to be natural and not constructed. Therefore, that
2646provision of the Departments drainage handbook which states that
2655any project does not drain naturally onto the Departments right-
2665of-way does not require a drainage connection permit is not
2675applicable here.
267729. To be sure, it would appear that to conform to the
2689requirements established for a drainage connection permit, a
2697significant portion of the Petitioners remaining property would
2705be lost to development. The resultant economic cost to
2714Petitioner, while considerable, is not pertinent to the issue of
2724the need for a drainage access permit.
2731RECOMMENDATION
2732Based on the foregoing Findings of Fact and Conclusions of
2742Law, it is recommended that the Department of Transportation
2751enter a Final Order denying Petitioners request for an exemption
2761from the drainage connection permitting requirements of Chapter
276914-86, Florida Administrative Code .
2774DONE and ENTERED this 30th day of January, 1997, in
2784Tallahassee, Florida.
2786ARNOLD H. POLLOCK
2789Administrative Law Judge
2792Division of Administrative Hearings
2796The DeSoto Building
27991230 Apalachee Parkway
2802Tallahassee, Florida 32399-3060
2805(904) 488-9675 SUNCOM 278-9675
2809Fax Filing (904) 921-6947
2813Filed with the Clerk of the
2819Division of Administrative Hearings
2823this 30th day of January, 1997.
2829COPIES FURNISHED :
2832Francine M. Ffolkes, Esquire
2836Department of Transportation
2839Haydon Burns Building
2842605 Suwannee Street, MS-58
2846Tallahassee, Florida 32399-0458
2849Charles F. Barber, Esquire
2853Alford, Barber & Mariani
28571550 South Highland Avenue
2861Clearwater, Florida 34614
2864Michael A. Hanson, Esquire
28681207 North Himes Avenue
2872Tampa, Florida 33607
2875Ben G. Watts, Secretary
2879Attention: Diedre Grubbs, M.S. 58
2884Department of Transportation
2887Haydon Burns Building
2890605 Suwannee Street
2893Tallahassee, Florida 32399-0450
2896Pamela Leslie
2898General Counsel
2900Department of Transportation
2903562 Haydon Burns Building
2907605 Suwannee Street, Suite 562
2912Tallahassee, Florida 32399-0450
2915NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2921All parties have the right to submit written exceptions within
2931fifteen days from the date of this recommended order. Any
2941exceptions to this recommended order should be filed with the
2951agency that will issue the final order in this case.
- Date
- Proceedings
- Date: 04/10/1997
- Proceedings: Final Order filed.
- Date: 02/18/1997
- Proceedings: Petitioner`s Exceptions to Recommended Order filed.
- Date: 01/13/1997
- Proceedings: Department of Transportation's Proposed Recommended Order (filed via facsimile).
- Date: 01/07/1997
- Proceedings: (From C. Barber) Final Argument of the Applicant in Support the Appeal of the Department of Transportation's Decision to Require Drainage Connection Permit filed.
- Date: 12/30/1996
- Proceedings: Transcript filed.
- Date: 12/23/1996
- Proceedings: Letter to AHP from C. Barber Re: Enclosing photocopy of reduced eleven exhibits filed.
- Date: 12/11/1996
- Proceedings: CASE STATUS: Hearing Held.
- Date: 10/14/1996
- Proceedings: Order Granting Continuance sent out. (hearing rescheduled for 12/11/96; 9:00am; Tampa)
- Date: 10/08/1996
- Proceedings: (Petitioner) Unopposed Motion for Continuance filed.
- Date: 07/16/1996
- Proceedings: Order Granting Continuance sent out. (hearing rescheduled for 10/15/96; 9:00am; Tampa)
- Date: 07/10/1996
- Proceedings: (Petitioner) Motion for Continuance filed.
- Date: 06/26/1996
- Proceedings: Notice of Hearing sent out. (hearing set for 9/17/96; 9:00am; Tampa)
- Date: 06/25/1996
- Proceedings: (Respondent) Response to Initial Order filed.
- Date: 06/13/1996
- Proceedings: Initial Order issued.
- Date: 06/11/1996
- Proceedings: Agency referral letter; Request for Formal Proceedings Pursuant to Sec. 120.57(1) Florida Statutes; Agency Action letter filed.
Case Information
- Judge:
- ARNOLD H. POLLOCK
- Date Filed:
- 06/11/1996
- Date Assignment:
- 06/13/1996
- Last Docket Entry:
- 04/10/1997
- Location:
- Tampa, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO