Background
These consolidated cases involve applications by Secret Oaks Owners' Association (Secret Oaks) for a regulatory wetland resource management (dredge and fill) permit (OGC Case No. 95- 1341; DOAH Case no. 98-5290) and a proprietary consent of use for sovereign submerged lands (OGC Case No. 98-2669; DOAH Case No.
98-5190) for the construction of a dock on the St. Johns River, a Class III waterbody, in the Secret Oaks subdivision located on Fruit Cove Road and Secret Oaks Place in St. Johns County, near Jacksonville, Florida. The total square footage of the proposed dock over waters of the state is 3,234 square feet. The proposed dock would have an access pier 5 feet by 520 feet, a terminal platform 10 feet by 16 feet, a covered boat slip 16 feet by 28 feet waterward from the terminal platform, and a catwalk 3 feet by 26 feet at the boat slip.
There is an existing dock on Lot 10 in Secret Oaks subdivision owned by Martin and Linda Parlato (the Parlatos). Secret Oaks has an easement along a 20 foot wide strip along one side of the Parlatos' lot to the waterfront. At one time there was an "ancillary dock" connecting the easement, over the water, to the existing dock on the Parlatos' lot. The ancillary dock was removed by the Parlatos and Secret Oaks has no easement to cross Parlatos' lot between the 20 foot easement and the location of the existing dock. The proposed dock would be constructed at the end of the 20 foot wide easement.
Secret Oaks' applications for the permit and consent of use are being opposed by the Parlatos who own and reside at Lot 10. The decision to grant a consent of use is also being opposed by Patricia Ward (Ward) who lives at 912 Fruit Cove Road, Florida, immediately adjacent to and south of the Parlatos' property.
A hearing on the consolidated cases was held on May 10 and 11, and July 21, 1999, before an administrative law judge (ALJ) with the Division of Administrative Hearings (DOAH). On January 27, 2000, the ALJ submitted his Recommended Order (RO) to the Department of Environmental Protection (Department). The ALJ concluded that the application for the dock satisfied all of the requirements for the regulatory permit, but concluded that the application for the dock did not comply with the proprietary requirement of rule 18-21.004(3) that the dock not interfere with the riparian rights of the adjacent upland owners. The ALJ believed that the concurrent review provisions of section 373.427 and rules 18-21.00401 and 62-343.075 applied to both the applications for the regulatory permit and the proprietary consent of use. Because the concurrent review statutes and rules provide that a regulatory wetland resource management permit may not be issued unless the applicant also meets all the requirements for any required proprietary approval, the ALJ recommended that both the regulatory permit and the proprietary consent of use be denied. A copy of the Recommended Order is attached as Exhibit A.
On February 8, 2000, Secret Oaks filed a motion requesting entry of an order extending the time to file exceptions to the Recommended Order to and including February 24, 2000. In support of its motion, Secret Oaks' counsel of record stated that he had not received a copy of the Recommended Order, and that DOAH agreed to mail him a copy on February 9, 2000. On February 9, 2000, Secret Oaks filed a supplemental motion consenting to a corresponding extension of time (i.e., an extension of 15 days) for the Department to enter this final order. On February 10, 2000, the Department's counsel for the hearing below filed a response of no objection to the requested extension of time, and further requested that all parties be granted an extension of
time to file exceptions to the Recommended Order to and including February 24, 2000. On February 10, 2000, I entered an order granting the request for extension of time for all parties to file exceptions to the Recommended Order to and including February 24, 2000, and granting a corresponding 15 day extension of time for the entry of this final order.
Exceptions to the Recommended Order were filed by Secret Oaks, the Parlatos, and the Department. Patricia Ward did not file exceptions. The Department filed a response to the exceptions of Secret Oaks. No other responses to exceptions were filed. The matter is now before me as the Secretary of the Department for final agency action.
Under chapter 373 of the Florida Statutes and chapter 62-
312 of the Florida Administrative Code, I have jurisdiction to enter this final order on the wetland resource management permit. Under rule 18-21.0051 of the Florida Administrative Code, I have delegated jurisdiction to enter this final order on the proprietary consent of use to use sovereign submerged lands.
As a preliminary matter, I note that when an ALJ's findings of fact are supported in the record by competent substantial evidence I am bound by those findings and may neither reject them nor reweigh the evidence. See Dunham v. Highlands County School Board, 652 So.2d 894 (Fla. 2d DCA 1995); pietz v. Florida Unemployment Appeals Commission, 634 So.2d 272 (Fla. 4th DCA 1994); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Sec.
120.57(1)(1), Fla. Stat. (1999). Nor may I rejudge the credibility of testimony. See Brown v. Criminal Justice Standards and Training Commission, 667 So 2d 977 (Fla. 4th DCA 1996). However, in an area of law over which the Department has substantive jurisdiction, as long as I state with particularity the reasons for rejecting an ALJ's conclusion of law and find that my substituted conclusion is as reasonable, or more reasonable, I am not bound by the ALJ's conclusions of law. Sec. 120.57(1)(1), Fla. Stat. (1999). See also, Harloff v. Citv of Sarasota, 575 So.2d 1324, 1328 (Fla. 2d DCA 1991), review denied,
583 So.2d 1035 (Fla. 1991).
For the reasons discussed in detail below, I concur in and accept the ALJ's recommendation that the consent of use be denied. However, I disagree with and reject the ALJ's recommendation that the wetland resource management permit also be denied. The ALJ's recommendation that the wetland resource management permit be denied was based on the erroneous finding of fact and conclusions of law that the concurrent review provisions of section 373.427 of the Florida Statutes and rules 18-21.00401
and 62343.075 of the Florida Administrative Code applied to these applications (FOF No. 2; COL Nos. 62, 71, 77, and 87).
In the proceeding below, the ALJ took official recognition of rules 18-21.00401 and 62-343.075 (RO at 5). The official history notes published in the Florida Administrative Code show that these concurrent review rules did not take effect until October 12, 1995. The applications for the regulatory permit and the proprietary consent of use were received on November 28, 1994, (FOF No. 12, RO at 9), and the Department's intent to issue the wetland resource management permit was noticed on June 7, 1995 (FOF No. 22, RO at 13). Thus, the concurrent review rules took effect after the Department's decision on the intent to issue.
With respect to whether the concurrent review rules apply to this case, the issue presented is whether a rule that takes effect after an application is complete--and after the agency's decision to grant or deny the application is made within the 90- day timeframe allowed for final agency action on the application under section 120.60 -- may be applied to the application in a subsequent administrative hearing on the application. Because the application of the concurrent review rules would add criteria for the issuance of the wetland resource management permit, application of the concurrent review rules would be a substantive increase in the requirements for obtaining a wetland resource management permit.
The case law on this issue presents an uncertain guide. In Lavernia v. Department of Professional Regulation, 616 So.2d 53 (Fla. 1st DCA 1993), after an application for a medical license was filed--but before the Board of Medicine noticed its intent to deny the license--the applicable licensing statute was amended.
The court held that the amended statute applied to the pending application. Lavernia, is not directly on point because in the applications at issue here the concurrent rule took effect after the Department had noticed its final agency action within the 90- day permitting timeframe allowed by section 120.60. Closer to the situation at hand is the case in Central Florida Regional Hospital v. Department of Health and Rehabilitative Services, 582 So.2d 1193 (Fla. 5th DCA 1991). In Central Florida Regional Hospital, after the agency had made a final decision on the application within the timeframe allowed by section 120.60--but before an administrative hearing on the application--an applicable rule was invalidated. Despite the fact that the rule had been invalidated, the court held that the rule should still be applied to the application. In other words, the law as it existed at the time of the decision within the 90-day permitting timeframe of section 120.60 applied. In contrast to Central Florida Regional Hospital, in Agency for Health Care
Administration v. Mount Sinai Medical Center of Greater Miami, 690 So.2d 689 (Fla. 1st DCA 1997), the court held that an agency rule invalidated after an application was complete, but before a final decision on the application was made, cannot be applied to the application in a subsequent administrative hearing. In other words, the new law must be applied in the subsequent administrative hearing.1 In both Lavernia and Mount Sinai Medical Center the court recognized an exception when the application of the new law would be unfair.
In the case now before me, the application was filed, complete, and the final decision of the agency to grant the regulatory wetland resource management permit was made before the concurrent review rules took effect. This case does not involve the application of a rule that was subsequently invalidated. The issue of whether an invalid rule should be given effect raises its own unique policy issues. Therefore, the holdings in Mount Sinai Medical Center and Central Florida Regional Hospital are not directly applicable. I am guided by the fact in both Lavernia and Mount Sinai Medical Center the court recognized an exception when the application of the new law would be unfair. I note that even though this administrative proceeding is a de novo determination of the final agency action,2 it would be fundamentally unfair to the applicant to change the substantive rules of the game to "raise the bar" after an application is complete, and even more so after a final agency decision on the application is made within the 90-day timeframe allowed by section 120.60. Therefore, I conclude that the concurrent review rules do not apply to this case.
In view of all of the above, I find and conclude that the ALJ's conclusion that the concurrent review provisions apply to these applications is contrary to the ALJ's own findings, is not supported in the record by competent substantial evidence, and is erroneous as a matter of law. Based on my review of the applicable case law, on the findings that the application was filed on November 28, 1994, and on the fact that the Department's intent to issue was noticed on June 7, 1995, and based on the official history notes of rules 18-21.00401 and 62-343.075 showing an effective date of October 12, 1995, I find that my substituted conclusion that the concurrent review rules do not apply is as reasonable, or more reasonable, as the rejected conclusion of law. Therefore, I reject the ALJ's finding and conclusions of law that the concurrent review provisions of section 373.427 of the Florida Statutes and rules 18-21.00401 and 62-343.075 of the Florida Administrative Code apply to these applications. Accordingly, I must reject the recommendation that the wetland resource management permit be denied.
Although the law as interpreted by this order requires that the regulatory permit be issued even though the proprietary consent of use is denied, I do note that the issuance of the permit will be of little avail to Secret Oaks because it cannot build the dock without the consent of use, which is denied by this order.
Rulings on Exceptions of Secret Oaks
Secret Oaks filed six exceptions. Secret Oaks' first exception disputes the conclusion in paragraph 65 that "[o]nly the Parlatos have DEP permission to use that [the existing] dock." Secret Oaks correctly notes that a Department permit under chapter 62312 to construct a dock does not regulate who may use the dock -- it is merely an authorization to construct the dock. To the extent the ALJ's paragraph 65 states otherwise, the exception is granted. The granting of this exception does not alter the outcome of this proceeding.
Secret Oaks' second exception disputes the statement in paragraph 66 that "it is not assumed that the Association has any proprietary rights in the dock already in place at Lot 10." Secret Oaks argues that the Department lacks jurisdiction to determine ownership interests in either riparian areas or docks. It is clear from paragraph 56 of the Recommended Order that the ALJ was not implying that the Department had jurisdiction to adjudicate ownership rights in property. As discussed in the
response to the exceptions of the Parlatos, Part II.B above, the ALJ's comment relates to whether the proposed dock is "no more than the minimum length and size necessary to provide reasonable access to navigable water" for the purposes of rule 18- 21.005(1)(a)1. Accordingly, the exception is denied.
Secret Oaks' third exception disputes the finding in paragraph 75 that the proposed dock would create a preempted area between the proposed dock and the existing dock on Lot 10.
Although this statement is in the section of the Recommended Order designated conclusions of law, I agree that it is a finding of fact and should be treated as such. See J. J. Taylor Co. v.
Department of Business and Professional Regulation, 724 So.2d 192 (Fla. 1st DCA 1999) (a statement that is a finding of fact must be treated as such regardless of whether it is characterized as a conclusion of law by the ALJ); accord Battaglia Properties v.
Land and Water Adj. Commission, 629 So.2d 161, 168 (Fla. 5th DCA 1994). Secret Oaks claims that there is no preempted area between the docks because the proposed dock is limited to one slip, and because members of Secret Oaks have the right to use the existing dock on Lot 10. Secret Oaks misconstrues the meaning and purpose of the preempted area rule provision. The purpose of the preempted area provision is to take into consideration that the general public, for which the sovereign submerged lands are held in public trust, will either lose or suffer a reduction in ability to access the preempted area of sovereign submerged lands. Therefore, it is not determinative whether the docks have one slip or whether Secret Oaks has access rights to both docks. The issue is to what degree is the general public's use of the sovereign submerged lands impaired by the docks. Thus, as noted above, rule 18-21.003(38) defines preempted area as
"Preempted area" means the area of sovereignty lands from which the traditional public uses have been or would be excluded to any extent by an activity. The area may include, but is not limited to, the sovereignty lands occupied by the docks and other structures, the area between the docks and out to any mooring pilings, and the area between the docks and the shoreline. If the activity is required to be moved waterward to avoid dredging or disturbance of nearshore habitat, a reasonable portion of the nearshore area that is not impacted by dredging or structures shall not be included in the preempted area.
Fla. Admin. Code R. 18-21.003(38) (1999) (emphasis added). If the docks are close enough so that traditional use by the general public would be excluded to any extent, there will be a preempted area between the docks regardless of whether Secret Oaks has access rights to both docks. Accordingly, the exception is denied.
Secret Oaks' fourth and fifth exceptions dispute all of paragraph 86 in the Recommended Order. Secret Oaks contends that the Department has no jurisdiction to determine property rights, and that because a court has determined that Secret Oaks has an easement across Lot 10 to the water, the Department cannot take into consideration the provision of rule 18-21.004(3)(c) that the proposed dock may "not restrict or otherwise infringe upon the riparian rights of adjacent upland riparian owners." I disagree. In Secret Oaks Owners' Association v. Department of Environmental Protection, 704 So.2d 702 (Fla. 5th DCA 1998), the court held that Secret Oaks, by virtue of its easement, had sufficient title interest under rule 18-21.004(3)(b) "for the purpose of seeking permission to construct a dock." Id., 704 So.2d at 703, 706.
The court did not hold that when seeking permission to construct
a dock Secret Oaks did not have to comply with the provisions of 18-21 concerning proprietary approval for the construction of a dock on sovereign submerged lands. As noted above, rule 18- 21.004(3)(c) requires the Department to consider whether a proposed structure will "restrict or otherwise infringe upon the riparian rights of adjacent upland riparian owners."
I agree with the statement in paragraph 56 of the Recommended Order that this administrative proceeding cannot adjudicate real property disputes between Secret Oaks and the Parlatos. See Buckley v. Dept. of Health and Rehabilitative Services, 516 So.2d 1008, 1009 (Fla. 1st DCA 1988); Miller v. Dept. of Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987); Hageman v. Carter, 17 F.A.L.R. 3684, 3690 (Fla. DEP 1995);
Powell v. Alabama Electric Cooperative,15 F.A.L.R. 325, 326 (Fla. DER 1992). However, absent a controlling court adjudication regarding riparian rights lines and whether a proposed structure would interfere with those riparian rights, the Department is required under rule 18-21.004(3) to consider whether a proposed structure will restrict or otherwise infringe upon the riparian rights of adjacent upland riparian owners. Accordingly, I reject these exceptions.
Secret Oaks sixth exception disputes the recommendation that the wetland resource management permit be denied. I accept this exception for the reasons stated in Parts I and II.A above, and reject the recommendation that the wetland resource management permit be denied.
