City Attorney David Persson Lays Out the Boone Water and Sewer Story and His Recommendation to the City Manager Persson & Cohen, P.A. Attorneys and Counselors At Law David P. Persson R. David Jackson, P.A. – Of Counsel Andrew H. Cohen Kelly M. Fernandez* Telephone (941) 375-3565 Maggie D. Mooney-Portale** Facsimile (941) 451-8375 Email: dpersson@swflgovlaw * Board Certified State and Fed. Govt. & Admin. Practice ** Board Certified City, County and Local Government Law Reply to: Venice January 17, 2014 Edward Lavallee, City Manager City of Venice 401 West Venice Avenue Venice, Florida 34285 RE: Water connection for 1001 Avenida del Circo (Colonial House GP a/k/a Boone law firm) Dear Ed: Pursuant to your request, I have reviewed the history, documents related to water connection and researched the water line and meter requirements of the Florida Plumbing and Building Code for the commercial property located at 1001 Avenida del Circo (referred to herein as “Colonial House”). I have also met with Mr. E. G. Boone and others, owners of the property. The question asked of me is whether there was a prior agreement between the owners of Colonial House and the City regarding the size of the water line and meter to be installed and, if so, what is the effect of that agreement. I offer the following: FACTS In the early 2000’s the City annexed multiple properties to remove then existing enclaves within the City. The Colonial House was voluntarily annexed. In a form letter sent by the City in March 2001, the costs of annexation were explained as follows: “The total cost of annexation will be $2,985, which consists of plant capacity fees ($2,660), connection fees ($200) and a security deposit ($125)….These fees are based on a 3/4 x 5/8 inch meter. Some commercial properties may require a larger meter.” (The letter is attached as Exhibit 1.) In August, 2001, Colonial House paid the City $2,985.00 for annexation costs that included capacity fees. (See Exhibit 2) By comparison, in 2001 the total capacity fee for water and sewer for a 1½ inch meter was $13,300.00. The $2,985 payment was accepted by the City. A memo dated September 19, 2001, from Dan Boone to Marty Black memorialized a discussion between the two of them as follows: “This memo contains some of the things we discussed this morning:…Total paid by us to annex is $2,985.00. This has been paid….This is based on a 3/4 inch by 5/8 inch meter. This is the size meter that will serve our property. We will not be required to pay additional charges when actually hooking up to the City of Venice sewer and water.” (See Exhibit 3) Notice was provided to Colonial House on October 14, 2003, to connect to water and sewer service within 365 days. Subsequently an agreement was reached to allow Colonial House to delay connecting to the City utilities until November 13, 2011, in order to amortize a new well and reverse osmosis water treatment system that the property owners had recently installed. (See Exhibit 4) For commercial properties with the number and types of fixtures within Colonial House, the Florida Plumbing Code then and today requires a 2 inch line with a 1½ inch meter. A 3/4 inch line with a 5/8 inch meter is not allowed for fixtures with flush valves. (See Exhibit 5, letter from Vince LaPorta, Building Official, to Mr. E. G. Boone, dated January 31, 2012.) Section 603.1 “Size of Water Service Pipe” says “… Water services shall be sized in accordance with Table 603.1 or other approved methods.” Table 603.1 “Minimum Water Service Size” says that for the number of water fixtures at Colonial House, the minimum water line is 2 inches and the “recommended” meter size is 1½ inches. This is a Recommended Meter Size based on note d in column which states, “All secondary submeters and backflow assemblies shall be at least the same size as the line in which they are installed.” Finally, the definition under the Plumbing Code of “Approved” is “Acceptable to the code official or other authority having jurisdiction.” (See composite Exhibit 6) To try to put this into context, a 3/4 inch line with a 5/8 inch meter provides on average 20 gallons of water per minute, whereas a 2 inch line with a 1½ inch meter provides 5 times more water or 100 gallons per minute. A 5/8 inch meter is the smallest the City provides for any property. Today the monthly readiness-to-serve cost of a 5/8 inch meter is $40.11 ($18.94 water; $21.17 sewer) and the monthly readiness-to-serve cost of a 1½ inch meter is $200.54 ($94.71 water; $105.83 sewer). Mr. E. G. Boone informs me that a hydraulic engineer studied the water usage of Colonial House and he asked questions of a City expert to determine the actual water usage of the property. It was determined that on average it was 1800 gallons per month which is similar to the common usage for the smallest water line and meter. (The average 5/8 meter customer uses approximately 4,000 gallons a month. The average 1½ meter customer uses 20,000 gallons a month. A commercial customer using 1,800 gallons with a 5/8ths meter would pay approximately $736.85 per year, but would pay $2,662.01 with a 1½ meter.) Colonial House has a 1½ inch water line servicing the property from the existing well. The building has a 500 gallon holding tank which receives the water supply. It appears that Colonial House was designed, permitted and constructed with a 1½ inch water line. The Utility Department and the Building Official, based on requirements of the Florida Plumbing Code, are certain that the 3/4 inch line and 5/8 inch meter will not provide the building and its plumbing fixtures with sufficient water flow. Mr. Boone disagrees, noting that he believes that water flow would be an issue, if at all, only if all fixtures in the building were used at the same time. ANALYSIS Was there an agreement in 2001 between Colonial House and the City as to the size of the water line and meter to be connected to the property? While the City’s notice regarding annexation costs clearly stated that the figures were for residential property and that some commercial property would require a larger meter, Colonial House paid, and the City accepted payment, based upon a 5/8 inch line and 3/4 inch meter. E. G. Boone’s memo of September 19, 2001, corroborates this payment and acceptance. There is no evidence that I am able to find in the City records that refutes this acceptance or suggests that it was conditional. Therefore, by acceptance of the lower payment, I believe that members of the then City staff did agree that the size of the water line will be 3/4 inches and the meter would be 5/8 inches. There is no written evidence, however, that the Building Official was involved with, knew about or agreed to this arrangement. The Plumbing Code comes under the Florida Building Code and the Building Official is the only official under state law empowered to make interpretations of the Building Code. Courts give great weight to the determination of the individual who, day after day, month after month, year after year, interprets highly technical codes and requirements. Without the Building Official’s approval, the City is without legal authority to grant the reduced size line and meter. During my discussion with Mr. Boone and others from his firm, they believe that the Building Official was involved throughout the discussions regarding use of the smallest water line and meter for their commercial building. They believe that Mr. Black and others at the City at that time would testify to support this involvement. Because of the Florida Plumbing Code requirements and the demands for water service for a commercial property with the number and type of fixtures of Colonial House, the Building Official is unable to accept the smallest water line and meter allowed by the City when a water line of 2 inches is required and a 1½ inch meter is recommended under the Plumbing Code. It is not an “approved method” by the Building Official under the Plumbing Code. Section 90-56 of the City Code provides for powers for the Construction Board of Adjustment and Appeals. The Board is empowered to hear appeals whenever one of the following conditions are claimed to exist: (1) The Building Official rejected or refused to approve the mode or manner of construction proposed to be followed or materials to be used in the installation or alteration of a building, structure or service system; (2) The provisions of this chapter do not apply to this specific case; (3) An equally good or more desirable form of installation can be employed in any specific case; or (4) The true intent and meaning of this chapter or any of the regulations thereunder have been misconstrued or incorrectly interpreted. RECOMMENDATION The Building Official has refused to issue a permit for the connection of a 3/4 inch line with a 5/8 inch meter. I recommend that if the owners of Colonial House wish to seek relief, that you grant them a reasonable amount of time to appeal the determination of the Building Official to the Construction Board of Adjustment and Appeals and that board determine whether, under the totality of these facts, the Building Official’s determination should be overruled and the City allowed to issue a permit to install a 3/4 inch line with a 5/8 inch meter. Failing to either connect to a 2 inch line with a 1 ½ inch meter or to be granted an appeal, I recommend that the city require connection in the same manner as we have with other non-connected properties. I will be pleased to answer any questions that you might have. Respectfully, David P. Persson DPP/dgb Attachments cc: E. G. Boone, Esq. Jeffery A. Boone, Esq. Vince LaPorta, Building Official Lennox Bramble, Utility Director Andrew H. Cohen, Esquire
Posted on: Thu, 06 Mar 2014 15:52:16 +0000
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