Judges: MICHAEL R. N. MCDONNELL
Agency: Department of Environmental Protection
Latest Update: May 28, 1978
Summary: Permit deemed granted because no action was taken within 90 days.
77-0798.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AUGUST URBANEK, )
)
Petitioner, )
)
vs. ) CASE NO. 77-798
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 9:00 a.m., on November 7 and 8, 1977, at the Town Hall, City Commission Chambers, 3614 South Ocean Boulevard, Highland Beach, Florida.
Petitioner was represented by Jay J. Reynolds, Esquire, Jerald A. Goldstein, Esquire, of Reynolds and Marchbanks, 301 West Camino Gardens Boulevard, Boca Raton, Florida 33432. Respondent was represented by Louis F. Hubener, Esquire, Silvia Morell Alderman, Esquire, Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301.
Petitioner (hereafter Urbanek) contends that the dredge and fill permit for which he has applied should issue by operation of law because Respondent (hereafter DER) has 7 failed to comply with the statutory time requirements for notification of denial contained in either Section 403.061 or Section 120.60, Florida Statutes. Urbanek contends also that he has established the necessary assurances of environmental protection required by Chapters 253 and 403, Florida Statutes.
DER strongly opposes the permit application claiming that Urbanek has failed to meet his burden of proof ire these proceedings and that neither the time provisions of Chapter 120 or Chapter 403, Florida Statutes, require the issuance of the requested permit.
FINDINGS OF FACT
Urbanek owns land in and adjacent to Town Lots 93 and 94, Highland Beach, in Section 28, Township 46 South, Range 43 East, Palm Beach County, Florida. The real estate in question is located on the eastern shore of the Intra-Coastal Waterway approximately 2,000 feet south of the mouth of the C-15 Canal.
Urbanek seeks a permit under Chapters 403 and 253, Florida Statutes, and water quality certification under Public Law 92-500, to dredge approximately 24,500 square feet of shoreline and shallow nearshore area, while installing approximately 240 linear feet of bulkhead and ten mooring piles, and
constructing a marginal dock and piers for the use of future residents. The application also includes filling approximately 60,000 square feet of tidally connected ditches and wetlands to allow the construction of a high density residential development.
On January 19, 1976, DER received a short form application for a permit from Urbanek pursuant to Subsection 17-4.28 (4)(a), Florida Administrative Code. On March 10, 1976, Urbanek received from DER a request for additional information. This occurred 51 days after Urbanek's original application for permit. Urbanek forwarded the requested additional information to DER on April 22, 1976, and April 30, 1976.
On May 12, 1976, DER notified Urbanek that the project must be submitted using standard permitting procedures along with the incorporation of certain recommendations made by DER's field inspector. On June 9, 1976, Urbanek was notified by DER that his application had been forwarded to Tallahassee with a recommendation for denial on two grounds. First, that the application did not meet the criteria for short form applications and second, that the proposed project would eliminate valuable submerged and wetland habitats.
On July 27, 1976, Urbanek was notified by DER's Tallahassee office that his application was received on January 1976, and that the application was incomplete. The notification requested additional information. On September 22, 1976, DER notified Urbanek that processing of his application was discontinued because required data was not sent by Urbanek to DER. Urbanek was further advised that processing of the application," would be continued upon receipt of the necessary information.
On January 20, 1977, Urbanek submitted another modified permit application to DER. On February 28, 1977, DER sent Urbanek notice of receipt of the application once again requesting additional information be submitted. On March 4, 1977, Urbanek forwarded the requested information to DER. On April 1,
-1977, DER forwarded to Urbanek its notice of intent to deny and the proposed order of denial of the permit application. On April 15, 1977, Urbanek petitioned DER for a hearing pursuant to the provisions of Section 120.57, Florida Statutes.
The area of the project, prior to the turn of the century, was a fresh water wetland. However, salt water intrusion from the permanent opening of the Boca Inlet in south Palm Beach County in the early 1900's paved the way for colonization of mangroves in the Spanish River Basin, now the Intra-Coastal Waterway.
As the human population increased in Palm Beach County, the mangroves were destroyed in order to afford living spaces. As a result, approximately 77 percent of the mangroves in Palm Beach County have been removed. One of the last remaining mangrove areas in southern Palm Beach County is located on a strip of land which borders the eastern side of the Intra-Coastal Waterway. The applicant's project site represents a portion of that strip.
The project site fronts 230 feet-of the Intra-Coastal Waterway and extends approximately 670 feet eastward to State Road A1A. The property is intersected by three mosquito control ditches which run perpendicular to the Intra-Coastal Waterway but do not connect with it, and by six lateral ditches which extend from north to south and adjoin the property to the south. The project site is thus divided into eighteen parcels of land or "islands" and a fringing shoreline area.
A survey conducted on October 13, 1977, and October 18, 1977, revealed the emergent areas between the ditches to be vegetated by mostly white mangroves, with canopies ranging from fifteen to forty-five feet in height. Numerous white and red mangrove seedlings plus a few scattered black mangrove seedlings indicate that the area may be changing from a predominantly white mangrove to a mixed mangrove community throughout the project site. Batis and Sesuvium were found and Australian Pines and Brazilian Pepper were observed only in areas where spoil from dredging activities was placed on the emergent area. There are approximately seven to eight thousand trees, including seedlings, in the project area.
The mangrove system at the project site was characterized as a very productive system by Dr. G. Alex Marsh, an expert in Estuarine Ecology, who testified for DER. Dr. Arnold Banner of the United States Fish and Wildlife Service concurred with Dr. Marsh that the eradication of the productive system would result in the removal of a significant source of food and habitat. The evidence shows that a wetland habitat such as the project site affords approximately 535 pounds of fishing products per year with a dollar value of
$8,000 per acre to the public.
Petitioner argues that it would be in the public interest to bulkhead and fill the subject property because rodents would be eliminated, trash and debris would no longer collect on the property and that further erosion of the property would be prevented. However, Urbanek has failed to establish with substantial competent evidence that there actually exists a rodent problem on the subject property. The evidence does establish that trash and debris collect among the root system of the vegetation and that severe erosion has occurred on the property from wave action created by vessels moving through the Intra- Coastal Waterway.
Urbanek has failed to establish with substantial competent evidence that the proposed project will not degrade water quality, cause violation of water quality standards or criteria or cause pollution. In fact, no evidence was submitted whatsoever by Urbanek which would tend to prove any of these three preconditions to the granting of the requested permit. Nonetheless, DER's failure to act on the permit application within the time limits prescribed by Subsection 120.60 (2), Florida Statutes, as amended in 1976, mandates the issuance of the requested permit.
CONCLUSIONS OF LAW
Urbanek asserts that DER does not have jurisdiction to deny the permit, but this is not a jurisdictional question. If the time constraints of Chapter 403 (or Chapter 120) were to mandate the issuance of the permit, then DER not only has the jurisdiction or power to issue the permit, it has an affirmative obligation to do so. However, DER's contention that the provisions of Section 120.60, Florida Statutes, have superseded those time limits established by Chapter 403, Florida Statutes, is correct. Accordingly, the time constraints of Chapter 403 have no application to the instant case.
Between the date of Urbanek's initial permit application and June 15, 1976, Subsection 120.60(2), Florida statutes (1975), read, in pertinent part:
When an application for a license is made as required by law, the agency shall conduct the proceedings required
with reasonable dispatch and with due regard to the rights and privileges of
all affected parties or aggrieved persons.
The permit sought by Urbanek is a "license" as that term is used in Section 120.60, Florida Statutes, and defined in Subsection 120.52(7) , Florida Statutes. The clear statement of legislative intent contained in Section 120.72, Florida Statutes, to make uniform all adjudicatory procedures (including licensing) supports the conclusion that the above cited provision supersedes the time constraints contained in Chapter 403 and governs this cause between the time of Urbanek's initial permit application and June 15, 1976, the date on which a subsequent amendment to Subsection 120.60(2) became effective. Manatee Chapter of Izaak Walton League v. DER, DOAH Case No. 77-444.
On that date, time requirements for the licensing process became more restrictive through adoption of the following amendment:
Within 30 days after receipt of an applica- tion for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. . . . Every application for license shall be approved or denied within
90 days after receipt of the original appli- cation or receipt of the timely requested additional information or correction of errors or omissions. . . . Any application for a license not approved or denied within the
90-day period, within 15 days-after conclu- sion of a public hearing held on the applica- tion, or within 45 days after the recommended
order is submitted to the agency and the parties, whichever is latest, shall be deemed approved and, subject to the satisfactory completion of
an examination, if required as a prerequisite to licensure, the license shall be issued.
On June 15, 1976, Urbanek's initial application had been subjected to two requests for additional information and had been submitted to Tallahassee with a recommendation for denial. A third request for additional information was sent from Tallahassee on July 27, 1976, more than thirty days from the effective date of the latest statutory amendment cited above.
Where a statute or principle of law that is controlling or material to the merits of an action is changed during the pendency of the cause, the law as amended then becomes applicable and controlling in trial and decision of the action. Ingerson v. State Farm Mutual Automobile Ins. Co., 272 So.2d 862 (Fla. 3d DCA 1973); Heilmann v. State, 310 So.2d 376 (Fla. 2d DCA 1975), and cases cited therein. So it is in this case. The 1976 amendment to Subsection 120.60(2) explicitly applies to every application for license, pending or not.
It would place an unreasonable burden on licensing agencies to require them to immediately approve or deny applications that have been pending more than 90 days on the day of enactment of the amendment. A more generous and proper construction, that the time periods begin to run on pending applications
as of the effective day of the amendment, gives the agency a reasonable time to act while still insuring that license applications are processed expeditiously.
Since the third request for information was not timely requested, it became, upon the expiration of the 30 day period, incumbent on DER to approve or deny the application within 90 days of the effective date of the statute, that is by September 13, 1976. Since DER took no action prior to that date, the application for permit is deemed to be approved by operation of the statute. It is, therefore,
RECOMMENDED that DER issue its final order granting the requested permit. DONE and ENTERED this 11th day of April, 1978, in Tallahassee, Florida.
MICHAEL R. N. MCDONNELL
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Jay J. Reynolds, Esquire Jerald A. Goldstein, Esquire Reynolds and Marchbanks
301 West Camino Gardens Boulevard Boca Raton, Florida 33432
Louis F. Hubener, Esquire Silvia Morell Alderman, Esquire
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
AUGUST URBANEK,
Petitioner,
vs. DOAH CASE NO. 77-798
DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On April 13, 1978, the duly appointed Hearing Officer in the above styled matter submitted to the Department and all parties a Recommended Order consisting of his findings of fact, conclusions of law and recommendations, a copy of which is attached hereto as Exhibit A. Pursuant to Section 17-1.68, Florida Administrative Code, and Section 120.57 (1)(b) 8., Florida Statutes the parties were allowed ten (10) days in which to present written exceptions to the Recommended Order. The Department filed written exceptions. A copy of those exceptions is attached hereto as Exhibit B. The Petitioner did not file exceptions.
The Department also requested the opportunity to present oral argument pursuant to Section 17-1.68, Florida Administrative Code. After written notice to the parties, the Recommended Order came before me, as head of the Department, on May 26, 1978, at which time I heard the oral argument on the matter presented by the parties.
The Hearing Officer detailed the value of the mangrove system and found that Petitioner had failed to establish with substantial competent evidence that the proposed project will not degrade water quality, cause violation of water quality standards or criteria or cause pollution. However he recommended that a default permit be issued due to the Department's failure to act on the permit application within the time limits prescribed by Section 120.60 (2), Florida Statutes.
The Department suggests that the Hearing Officer's Conclusions of Law should be stricken because they address the wrong application. (See Respondent's Exceptions to the Recommended Order, Exhibit B, page 3).
A review of the chronology of this case as found in the Hearing Officer's Findings of Facts reveals that Petitioner filed a short form application for a permit on January 19, 1976. (A short form application may be filed for projects not exceeding 4,000 cubic yards). Additional requested information was forwarded to the Department on April 22 and April 30, 1976.
On May 12, 1976, within twelve (12) days of receipt of the additional information, the Department notified Petitioner that the application must be submitted using the standard permitting application form. After notifying Petitioner that he had filed the wrong application, the Department sought to work with the Petitioner in an attempt to assist him in preparing a satisfactory standard form permit application. The Department sent letters to the Petitioner on three occasions subsequent to the May 12, 1976 letter. No response appears in the record. The file was placed on inactive status on September 22, 1976.
Petitioner did not demand a hearing or a default permit. No communication appears in the record from Petitioner between April 30, 1976, and January 20, 1977, when Petitioner submitted a standard form permitting application to the Department. On April,1, 1977, the Petitioner was notified of the Department's intent to deny the standard form application. Petitioner requested a formal hearing on the intent to deny the standard form application. Thereafter a hearing was held and the Hearing Officer submitted the attached Recommended Order to the Department.
The record clearly shows that the Department processed the standard form permit application pursuant to the requirements of Chapter 120, Florida Statutes (as amended in 1976). Section 120.60 (2), Florida Statutes, provides:
Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions.
The letter of intent to deny the standard form application submitted by Petitioner on January 20, 1977, was dated April 1, 1977, or 67 days after receipt of the application.
Turning to the short form application which had been filed in 1976, the issue of default is raised by the Hearing Officer in his Conclusions of Law. The Hearing Officer maintains that Section 120.60 (2), Florida Statutes, was amended effective June 15, 1976, and on that date the provisions of the statute came into effect and should have been applied to all pending applications.
The position of the Hearing Officer is that the Department had 30 days from June 15, 1976, to request additional information on applications pending before the effective date of the Act. Having made the finding that the first letter to Petitioner after June 15, 1976, was dated July 27, 1976 (more than 30 days), he suggested that it became incumbent on the Department to make a final determination within 90 days of June 15, 1976.
The Hearing Officer cites no authority for this application of the time constraints of Section 120.60(2), Florida Statutes, to permit applications pending on June 15, 1976. This interpretation is contrary to the instruction given to the Department by the Joint Administrative Procedures Committee.
Shortly after the passage of the 1976 amendments to Chapter 120, Florida Statutes, the general counsel of the Department wrote to the Committee requesting instruction on the intent of the legislature as to pending applications (See letter of James R. Brindell to Carroll Webb, dated June 18, 1976, incorporated herein as Exhibit C-1).
The following question was asked:
Do the amended provisions of Section 120.60, Florida Statutes, as amended, apply to license applications pending before an agency which were filed prior to the effective date of the 1976 amendments?
The answer given was in the negative as can be seen from the correspondence which followed. (See letter from Janes Brindell to Carroll Webb dated August 6, 1976, incorporated herein as Exhibit C-2, and the response from the Committee counsel, dated August 12, 1976, incorporated herein as Exhibit C-3).
Since that time, pursuant to this legislative direction, the Department has applied the 1976 amendments to applications filed after June 15, 1976. The Hearing Officer thus erred in AM his retroactive application of the time constraints of Section 120.60(2), Florida Statutes.
This leaves the question of whether the short form application was processed pursuant to laws in effect at the time it was filed. Petitioner argues that the Department failed to comply with the requirements of Section
403.061 (18), Florida Statutes. However, that section does not apply to the Petitioner's application.
In 1974 the legislature passed Chapter 74-310, Laws of Florida (1974), which included the following, repeal language:
The intent of the legislature in enacting this complete revision of Chapter 120, Florida Statutes, is to make uniform the rulemaking and adjudicative procedures used by the administrative agencies of this state. To that end, it is the express intent of the-legislature that the provisions of this act shall replace all other provisions in the Florida Statutes, 1973, relating to rulemaking, agency orders, [and] administrative adjudication ...
(See Section 120.2 (1) Florida Statutes.) (Emphasis added)
Section 403.061 (18) Florida Statutes was the adjudicatory. procedure provided by the legislature for permitting applications under the Florida Air and Water Pollution Control Act, Chapter 67-436, Laws of Florida (1967). It was superceded by Chapter 74-310, Laws of Florida (1974).
Since Section 403.061 (18), Florida Statutes, was superceded by section
(1), Florida Statutes, and Chapter 253, Florida Statutes, does not contain any mandatory processing time restraints, and did not at the time the application was made, the only requirements in effect at the time existed in section 120.60, Florida Statutes (1975).
Section 120.60 (2), Florida Statutes, provided that the agency should conduct proceedings with reasonable dispatch and due regard to the rights and privileges of all affected parties. The agency informed the Petitioner that he had filed the wrong application within 12 days of receipt of the information required to make such a determination. The intent of Chapter 120, Florida Statutes, was thus followed, as no specific time limitations existed.
Section 120.57 (1)(b)9., Florida Statutes, allows the Department to reject or modify Conclusions of Law submitted by the Hearing Officer. Having considered the Hearing Officer's Recommended Order and having given opportunity for submission of written exceptions and listened to the oral arguments presented before me it is therefore ordered by the State of Florida, Department of Environmental Regulation that:
The Findings of Fact of the Hearing Officer are hereby adopted with the exception of the last sentence found in the Findings of Fact, reading as follows:
Nonetheless, DER's failure to act on the permit application within the time limits prescribed by Subsection 120.62 (2), Florida Statutes, as amended
in 1976, mandates the issuance of the requested permit.
This sentence is in fact a Conclusion of Law and not a Finding of Fact.
The Conclusions of Law submitted by the Hearing Officer are hereby rejected.
The application for permit is hereby denied on the basis of the Hearing Officer's Findings of Fact that "Urbanek has failed to establish substantial competent evidence that the proposed project will not degrade water quality, cause violation of water quality standards or criteria or cause pollution." (Findings of Fact, Recommended Order page 5) as required by Section 17-4.28, Florida Administrative Code. The permit is also denied pursuant to Section 17- 4.29, Florida Administrative Code, on the further basis of the finding of the Hearing Officer that the mangrove system is very productive and eradication would result in removal of a significant source of food and habitat, (page 4 in the Findings of Fact).
Accordingly, the Petitioner's application for permit under Chapters 253 and 403, Florida Statutes, is denied.
DONE AND ORDERED this 28th day of May, 1978.
JOSE W. LANDERS, JR.
Secretary
Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing final order has been served on Jay J. Reynolds, 301 W. Camino Gardens Blvd., Boca Raton, Florida 33432 by
U. S. Mail this 29th day of May 1978.
SYLIVA MORELL ALDERMAN
Docket for Case No: 77-000798
Orders for Case No: 77-000798
