O

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE CITY OF BRADENTON, a Florida )

municipal corporation, )

)

Petitioner, )

)

vs ) CASE NO. 90-3536

)

AMERIFIRST DEVELOPMENT )

CORPORATION, a Florida corpor- ) ation and STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came before the undersigned on the Respondent, Department of Environmental Regulation's, (Department), Motion To Dismiss As Moot The City of Bradenton's, (City), Petition For Formal Proceeding in opposition to its intention to approve Amerifirst Development Corporation's, (Amerifirst) special permit to install a recreation area and boat ramp on it's property on the Braden River. A hearing was held on the motion by telephone conference call on August 21, 1990, attended by the undersigned, a Hearing Officer with the Division of Administrative Hearings, and counsel for all parties. Subsequent to this hearing, the undersigned gave the parties time to submit memoranda or argument on the issues of fact and law.

APPEARANCES

For Petitioner: Mark A. Nelson, Esquire

Harllee, Porges, Hamblin and Hamrick, P.A.

P.O. Box 9320

Bradenton, Florida 34206

For Respondent: Steven J. Chase, Esquire

Amerifirst Abel, Band, Brown, Russell & Collier, Chartered

P.O. Box 49948

Sarasota, Florida 34230-6948

For Respondent: Richard Donelan, Esquire

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

The issue for consideration herein is whether the withdrawal by Amerifirst of its application for a permit from the Department to build a recreation area and boat ramp on the Braden River precludes a hearing to determine whether the project can be constructed under a general permit held by Amerifirst.

PRELIMINARY STATEMENT

On August 21, 1990, the Department filed a Motion to Cancel Hearing and Motion To Dismiss as Moot Petitioner, City's, Petition For Formal Proceedings challenging the Department's intent to approve a permit applied for by Amerifirst to construct a recreational area and boat ramp on the Braden River for the residents of its Mote Ranch development, on the basis that the application for permit had been withdrawn by Amerifirst which intended to proceed to build the ramp under a general permit from the Department. A hearing was held on August 21, 1990 at which all parties agreed that with the withdrawal of the application for the special permit, the issue of its propriety was moot. Amerifirst and the Department contend the issue of the general permit is not appropriate for Section 120.57(1) hearing, and the City claims the matter is still properly before the undersigned.

In an Order issued August 22, 1990, the undersigned granted a continuance of the hearing scheduled for August 28, 1990, and authorized the filing of memoranda and argument on the issue.

FINDINGS OF FACT

1. On July 13, 1989, the Department received an application from the Respondent, Amerifirst, for a permit to construct a recreational area and boat ramp for its 465 acre, 966 unit Mote Ranch development in Manatee County. Thereafter the Department published an Intent to Issue the permit in question in which it advised persons whose substantial interests were affected thereby of their right to protest and request a formal hearing.

   
   

2. By Petition filed June 1, 1990, the City filed a timely Petition For Formal Hearing protesting the Intent to Issue, claiming that the project would degrade the quality of the City's only public drinking water supply. The matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and on June 22, 1990, the undersigned set the matter for hearing in Bradenton on August 28, 1990.

   
   

3. However, in July, 1990, Amerifirst communicated to the Department its intention to use the general permit under Section 17-312.803, F.A.C., for the installation of the boat ramp, and by letter of August 13, 1990, the Department indicated that proposed action appeared to be authorized. Thereafter, on August 14, 1990, Amerifirst requested withdrawal of the previously filed special permit which had been protested by Petitioner herein.

   
   

4. The parties agree that Amerifirst's withdrawal of its application for special permit renders moot the issue of that permit's propriety.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

6. The parties having agreed that withdrawal of Amerifirst's application for a special permit to construct the recreation area and boat ramp render the issue of its propriety moot, no further comment on that matter will be made.

   
   

7. Amerifirst and the Department both contend that with the withdrawal of the application, no further issue remains for hearing and have moved for dismissal of the City's Petition in opposition to the issuance of the special permit.

   
   

8. The City, on the other hand, contends that since, in light of Amerifirst's intention to proceed with the ramp under a general permit the ultimate impact on its water would be the same, this hearing should continue on the issue of the propriety of the project under the general permit.

   
   

9. Chapter 17-312.803, F.A.C., grants a general permit to any person to install or operate a boat ramp under certain provisions, (Sec. (1)(a)-(j)). Two special conditions, in addition to the general conditions outlined in Rule 17- 4.540, are imposed. These include the use of turbidity curtains and a disclaimer of state obligation to approve any subsequent request to dredge for navigational access.

   
   

10. The Department has apparently found that the provisions in (1)(a)-(j), above, have been met. Its letter of August 13, 1990 so indicates. The general conditions outlined in Rule 17-4.540 do not appear to prevent or compromise authorization of the project under a general permit. These conditions are, however, enforceable under Chapter 403, Florida Statutes.

    
    

11. The Department's August 13, 1990 letter appears to be an opinion on the propriety of the use of the general permit in this case and does not, under these circumstances, constitute reviewable agency action, Hobb Associates, Ltd.

    v. Department of Business Regulation, 504 So.2d 1301, (Fla. 1DCA 1987). No findings of fact have been made nor have legal conclusions been drawn.

    
    

12. Though some review of the effect of Amerifirst's project may be available in another forum, the project is no longer properly reviewable under Section 120, Florida Statutes.

RECOMMENDATION

It is, therefore:

RECOMMENDED that the Department's Notion To Dismiss be granted and that an Order be issued dismissing the City of Bradenton's Petition For Formal Proceeding in this case.

RECOMMENDED in Tallahassee, Florida this 19th day of October, 1990.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1990.

COPIES FURNISHED:

Mark A. Nelson, Esquire

Harllee, Porges, Hamblin & Hamrick, P.A.

P.O. Box 9320

Bradenton, Florida 34206

Steven J. Chase, Esquire Abel, Band, Brown, Russell

& Collier, Chartered

P.O. Box 49948

Sarasota, Florida 34230-6948

Richard Donelan, Esquire Department of Environmental

Regulation

2600 Blair Stone Rd. Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-003536

Orders for Case No: 90-003536