GLEN HILL v. BARREN RIVER HEALTH DEPARTMENT; CABINET FOR HEALTH SERVICES
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RENDERED: JULY 26, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000872-MR
GLEN HILL
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN D. MINTON, JUDGE
ACTION NO. 00-CI-00658
v.
BARREN RIVER HEALTH DEPARTMENT;
CABINET FOR HEALTH SERVICES
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; McANULTY, AND MILLER, JUDGES.
McANULTY, JUDGE:
Glen Hill appeals a judgment of the Warren
Circuit Court affirming the final Order of the Secretary of the
Cabinet for Health Services, which approved a permit for an onsite sewage system located on property adjacent to the
appellant’s residence.
We affirm.
Glen Hill owns a residence located on Lot 59 in
Pleasant Place Subdivision in Bowling Green, Kentucky.
William
Fishback, a home builder, is the owner of an adjacent lot, Lot
58, and undertook to construct a home on the lot.
On January 7,
1997, Fishback filed an On-site Sewage Disposal System
Construction Application and Permit with the Barren River
District Health Department (Health Department).
Fishback
subsequently filed for and received five variances relating to
repair area and setback distance requirements.
The granting of
the variances resulted in the approval to install a septic system
on Lot 58.
On October 15, 1998, pursuant to KRS 211.260, Hill
filed an appeal with the Secretary of the Cabinet for Health
Services (Cabinet Secretary) objecting to the granting of the
variances and approval of the septic system for Lot 58.
On March 5, 1999, a public hearing on the appeal was
held before Administrative Law Judge (ALJ) Elizabeth A. Johnson.
On May 12, 1999, the ALJ entered a recommended order.
The order
recommended remanding the matter to the Health Department for a
reconsideration of its decision to grant a permit and variances
for the septic system on Lot 58.
Specifically, the order
recommended that the case be remanded for the Health Department
(1) to determine the number of bedrooms in the Lot 58 residence,
and (2) to determine whether a system should be approved for a
lot with a zero percent repair area when the only alternative if
the system fails is a holding tank.
The order also directed the
Health Department not to approve a septic system that was not of
the proper size and not in compliance with the applicable
regulations.
The recommended order notified the parties that
each had fifteen days from the date of the recommended order to
file exceptions to the recommendations.
The Health Department
filed exceptions to the recommended order; Hill, however, did not
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file any exceptions.
The order was subsequently adopted by the
Cabinet Secretary as his own.
On July 21, 1999, the Health Department issued a
reconsideration determination.
The Health Department determined
that the Lot 58 house had two bedrooms; that the onsite sewage
disposal system was properly sized; and that the variances
granted were in compliance with the Kentucky Onsite Sewage
Disposal System Regulations.
Hill again appealed to the Cabinet
Secretary, and a hearing was conducted on December 8, 1999,
before a successor ALJ, Lori Payne Eisele.
On March 29, 2000,
the successor ALJ filed a recommended order holding (1) that the
evidence supported Fishback’s contention that the residence had
two bedrooms and, as such, the 1,200 square foot septic system
was properly sized; (2) that the evidence supported approval of a
variance for a zero repair area, even though the only alternative
if the system fails is a holding tank; (3) that none of the
variances granted was for a prohibited purpose; (4) that Hill
failed to prove by a preponderance of evidence that the July 21,
1999, reconsideration determination was incorrect; and (5) that
if Hill had additional concerns with the system beyond those
addressed in the reconsideration determination “he should address
those in an appropriate forum.”
On April 19, 2000, the Cabinet
Secretary entered an order adopting the recommended order as his
own.
Hill then appealed the Cabinet Secretary’s decision to
the Warren Circuit Court.
On March 6, 2001, the circuit court
entered an order upholding the Cabinet Secretary’s decision on
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the basis that it was supported by substantial evidence.
This
appeal followed.
First, there is a dispute concerning the scope of our
review in this appeal.
Hill advocates a broad-based review under
which essentially all of the issues raised in the course of the
administrative proceedings may be addressed in this appeal.
The
Health Department, on the other hand, maintains that Hill’s
failure to file exceptions to the initial May 12, 1999,
recommended order resulted in the narrowing of the issues in the
case to those issues specifically identified for further
reconsideration on remand and a waiver of all other issues.
The
relevant paragraphs in the May 12, 1999, recommended order are as
follows:
CONCLUSIONS OF LAW
5. The undersigned concludes that the Health
Department made its decision to grant the
variances based on the evidence presented by
William Fishback and evidence presented by
the inspectors. However, the information
provided to the Health Department was
inaccurate as to the number of bedrooms in
the house. Therefore, the approved septic
system is not adequate for the size of the
home.
6. Secondly, the lot does not have a
sufficient repair area. A repair area is
defined as “an area, either in its natural
state or which is capable of being modified,
consistent with this regulation, which is
reserved for the installation of an
additional lateral field(s) and is not
covered with permanent structures or
impervious materials.” 902 KAR 10:085,
Section 2(25). A 100% repair area is
required for sites classified as
provisionally suitable. 902 KAR 10:085,
Section 4. Lot 58 has been deemed
provisionally suitable but has a 0% repair
area.
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7. After reviewing the evidence in this
matter, the undersigned concludes that the
septic system installed on lot 58 is likely
to fail and cause damage to Mr. Hill’s
property, Lot 59. Because of the 0% repair
area, the only alternative once the system
fails is a holding tank, which is an
expensive option. Based on the new
information provided at the hearing, the
undersigned orders the Health Department to
reconsider its decision to grant a permit and
variances for a septic system on Lot 58. On
reconsideration, the Health Department shall
determine the number of bedrooms in the house
so that a determination can be made as to the
proper size of the septic system needed.
Additionally, the Health Department must
determine whether a system should be approved
for a lot with a 0% repair area when the only
alternative if the system fails is a holding
tank. The Health Department shall not
approve a septic system that is not of proper
size and not in compliance with the
applicable regulations.
Based upon the foregoing, on remand, the Health
Department limited the scope of its reconsideration to the issues
of (1) the number of bedrooms in the Lot 58 residence, and (2)
the repair area issue.
In the subsequent appeal to the Cabinet
Secretary, the ALJ likewise declined to consider any matters
beyond the bedroom and repair area issues.
The circuit court
similarly limited the scope of its review to these two issues.
As a result, a review of matters by the successor ALJ, the
Cabinet Secretary, and the circuit court beyond these two issues
is not included in the appellate record.
KRS 13B.110 establishes the administrative procedure to
be followed by agencies when an ALJ is used to conduct a hearing
and propose recommendations.
13B.110(4) provides that each party
must be given fifteen days from the date the recommended order is
mailed within which to file exceptions.
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We construe the May 12,
1999, recommended order as providing for no more than a remand
for the Health Department to consider the two issues of (1)
number of bedrooms, and (2) repair area.
We disagree with Hill’s
contention that the inclusion of the language “[t]he Health
Department shall not approve a septic system that is not of
proper size and not in compliance with the applicable
regulations” as indicating that the ALJ intended a broad-based
remand for complete reevaluation of all issues.
The ALJ’s
explicit identification of two specific issues for
reconsideration on remand belies Hill’s interpretation.
We
construe the cited language as applicable to the two issues
specifically identified for reconsideration on remand.
Hence, to preserve issues beyond the two identified by
the ALJ, Hill was required to file exceptions pursuant to KRS
13B.110(4).
(1998).
See Swatzell v. Commonwealth, Ky., 962 S.W.2d 866
In summary, we are persuaded that by not filing
exceptions to the initial recommended ALJ order, Hill failed to
preserve any issues not designated to be considered by the Health
Department on remand.
The only issues specified in the order to
be considered concerned the number of bedrooms in the residence
and the repair area issue.
We will accordingly limit our review
to these two issues.
We now address the two issues which are preserved,
beginning with the issue concerning the number of bedrooms in the
Lot 58 residence.
Initially, Fishback represented to the Warren County
Building Inspector that the Lot 58 residence would be a three-
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bedroom home.
However, when he applied for approval of the
septic system, Fishback represented to the Health Department that
the home would be a two-bedroom home.
Size and capacity
requirements for a septic system is determined by the number of
bedrooms in the residence.
If the residence is, in fact, a
three-bedroom home, it appears uncontested that the septic system
would not meet Health Department size and capacity standards.
On
the other hand, if the residence is a two-bedroom home, the
septic system would be of adequate size.
On remand, the Health Department determined that the
residence is, in fact, a two-bedroom home.
Health Department
Director of Environmental Health Services Barry Turner stated
that he arrived at this conclusion based upon three factors.
First, he and Health Department worker David Burton personally
viewed the site and reconciled the house with the floor plans
which had been provided by Fishback indicating the house to be a
two-bedroom house with an office.
Second, though two previous
building permit applications reflected that the home was a threebedroom home, the amended application indicated that the home was
a two-bedroom home.
Third, Fishback filed an affidavit swearing
that the house was a two-bedroom house.
In addition, Fishback
testified that he represents to potential buyers of the property
that the residence is a two-bedroom residence.
Based upon this
evidence, the Cabinet Secretary accepted the Health Department’s
conclusion that the Lot 58 home had two bedrooms, not three.
In reviewing a decision by an administrative agency,
the reviewing court is "bound by the administrative decision if
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it is supported by substantial evidence."
Commonwealth
Transportation Cabinet v. Cornell, Ky. App., 796 S.W.2d 591, 594
(1990).
Substantial evidence is defined as evidence which, when
taken alone or in the light of all the evidence, has sufficient
probative value to induce conviction in the mind of a reasonable
person.
Bowling v. Natural Resources, Ky. App., 891 S.W.2d 406,
409 (1994).
In weighing the substantiality of the evidence
supporting an agency's decision, a reviewing court must hold fast
to the guiding principle that the trier of facts is afforded
great latitude in its evaluation of the evidence heard and the
credibility of witnesses appearing before it.
Kentucky State
Racing Commission v. Fuller, Ky., 481 S.W.2d 298, 308 (1972).
An
agency's decision may be supported by substantial evidence even
though a reviewing court may have arrived at a different
conclusion.
Id.
Furthermore, if an agency's findings are
supported by substantial evidence, "the findings will be upheld,
even though there may be conflicting evidence in the record."
Kentucky Commission on Human Rights v. Fraser, Ky., 625 S.W.2d
852, 856 (1981).
Simply put, "the trier of facts in an
administrative agency may consider all of the evidence and choose
the evidence that he believes."
Commonwealth Transportation
Cabinet v. Cornell, Ky. App., 796 S.W.2d 591, 594 (1990).
Hill contends that the Cabinet Secretary’s conclusion
that the house was a two-bedroom house was erroneous because the
house was converted from three bedrooms to two bedrooms merely by
converting one of the bedrooms to an office, and there is nothing
to prevent the office from being converted back to a bedroom.
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While Hill’s argument is credible, nevertheless, based upon the
evidence of record, so is the Cabinet Secretary’s conclusion that
the residence is a two-bedroom structure.
The finding of the
Cabinet Secretary that the house is a two-bedroom residence is
supported by substantial evidence, and we are constrained to
accept the finding.
Next, 902 KAR 10:085, Section 4 (8)(c) requires that
sites classified as provisionally suitable, such as Lot 58,
“shall have a minimum repair area equal to 100 percent of the
area occupied by the lateral field set aside in addition to
[other] space required. . . .”
It is uncontested that there is
no repair area, i.e., zero percent repair area, on Lot 58, but
that a variance to the requirement was granted, subject to the
installation of a holding tank with an alarm system.
In its
Final Determination letter following remand, the Health
Department stated as follows:
A variance was issued relative to the lack of
adequate repair on this lot. The issuance of
variances where there is less than one
hundred (100 %) percent repair area is a
common practice and is consistent with this
health department’s past practice and that of
other health departments in the state of
Kentucky. In consideration of this variance
and the variances issued by the health
department relative to setback distances, the
onsite sewage system installed on Lot #58 is
in compliance with the Kentucky Onsite Sewage
Disposal Systems Regulations (902 KAR and 902
KAR 10:081).
None of the variances that were issued will
make this system any more likely to fail;
however, in the unlikely event of a system
malfunction, a holding tank with an alarm
could be installed and the holding tank
pumped as necessary by a licensed septic tank
cleaner. If done properly, this is an
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acceptable practice and would result in no
public health nuisance or groundwater
contamination. This could prove to be
costly, but the costs should not be a
deciding factor for the health department or
a concern of Mr. Hill.
902 KAR 10:081, Section 14, permits a variance to be
issued for minimum repair area requirements.
The Health
Department’s final determination reflects that it is not uncommon
for a variance to be granted for inadequate repair area.
Further, the determination indicates that none of the variances
granted will make the system any more likely to fail.
There was
hearing testimony presented by Barry Turner, Director of
Environmental Health Services for the Health Department,
consistent with the conclusions stated in the determination.
Mr.
Turner also testified that he did not “have any reason to believe
that the granting of this variance will cause a public health
nuisance.”
On the whole, we are persuaded that there is
substantial evidence in the record to support the Cabinet
Secretary’s decision to uphold the variance for inadequate repair
area.
Finally, Hill requests that he be awarded attorney fees
as a penalty against the appellees pursuant to KRS 13B.110(1).
However, as Hill has failed to prevail in this matter, he is not
entitled to an award of attorney fees.
For the foregoing reasons the judgment of the Warren
Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE BARREN
RIVER DISTRICT HEALTH
DEPARTMENT:
James R. Laramore
Bowling Green, Kentucky
Hoy P. Hodges
Hodges & Haynes
Bowling Green, Kentucky
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