STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELLEN PETERSON, et al., )

)

Petitioners, )

)

vs. ) CASE NO. 78-1467

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION and LEE ) COUNTY BOARD OF COUNTY )

COMMISSIONERS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on January 30 and 31, 1979, in Fort Myers, Florida.

APPEARANCES

For Petitioners: Isaac Anderson, Esquire

2115 Main Street, Suites A and B Fort Myers, Florida 33901

For Respondents: H. Ray Allen, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Thomas M. Brondstetter, Esquire Assistant Lee County Attorney Post Office Box 398

Fort Myers, Florida 33902

On August 18, 1978, the State of Florida, Department of Environmental Regulation ("Department") forwarded to the Division of Administrative Hearings, pursuant to the provisions of Section 120.57(1)(b)(3), Florida Statutes, a petition contesting the Department's intent to issue a dredge and fill permit for the extension of Daniels Road in Lee County, Florida, through an area known as Six Mile Cypress Swamp. Petitioners, Randy Smith, Ellen Peterson, Thomas Geary, Mary Ann Wallace, and Sierra Club - Calusa Group objected to the issuance of the aforementioned permit because of alleged potential environmental damage. Included with the petition forwarded by the Department was Lee County's answer to the petition and a motion to dismiss the petition on the grounds that Petitioners had failed to allege facts sufficient to indicate that their "substantial interests" would be affected by the proposed agency action.

By notice filed August 23, 1978, Petitioner, Randy Smith, withdrew as a party to this proceeding.

By order dated September 13, 1978, Lee County's Motion to Dismiss was granted, and Petitioners were allowed twenty days in which to file an amended petition. Thereafter, Petitioners filed an Amended Petition alleging that they were residents on the road proposed to be extended, that they would suffer from downstream flooding as a result of the issuance of the permit, and that the project would seriously impair their ability to study wildlife and enjoy the natural scenic beauty of the area.

Lee County again moved to dismiss and to strike portions of the Amended Petitioner. By order dated December 5, 1978, portions of Lee County's Motion to Strike were granted but the Motion to Dismiss was denied on the basis of allegations added to the Amended Petition indicating the "substantial interests" of the Petitioners that might be affected by the proposed agency action.

At the final hearing, the Department and Lee County called Kevin Erwin and Forrest Fields as its witnesses. The Petitioners called Benjamin Pratt, Thomas

1. Geary, Jim Schortmeyer, Dinesh Sharma, Allyson Simons, Michael Duever, Richard Allen Bantz, Donald P. Molloy, Kevin Erwin, Forrest Banks, and Mary Ann Wallace as their witnesses. The Department offered DER Exhibits 1-7, inclusive, all of which were received into evidence. Petitioners offered Petitioners' Exhibits 5-10, all of which were received into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. On March 30, 1978, Lee County applied to the Department for permits pursuant to Chapters 253 and 403, Florida Statutes, to improve the existing Daniels Road in Lee County, Florida, from a two lane unimproved facility to a two lane paved road. The project site is located in southeastern Lee County, Florida, and crosses Six Mile Cypress Swamp. The proposed improvement would require excavation of material from submerged lands of waters of the state to remove a part of the existing dirt roadbed, placing of fill material onto submerged lands of waters of the state to widen the existing roadbed, and construction of two concrete bridges and two variable crest weirs.

      
      

   2. After receipt of the application, the Department reviewed the application, and, after consultation with Lee County officials, recommended issuance of the requested permit subject to the following conditions:

      
      

      1. Elimination of a proposed bicycle path;

      2. Deletion of a proposed spreader ditch and the dredging necessary for that ditch;

      3. Formulation and submission to the Depart- ment by Lee County of an acceptable management plan and schedule for maintaining water levels

         and indigenous swamp communities within the swamp;

      4. Organization of a Melaleuca Control Committee, together with preparation and implementation of a program to eradicate melaleuca within the right-

         of-way; and

      5. Revegetation of willows in the construction area.

         
         

   3. In their Amended Petition, Petitioners contest the proposed issuance of the requested permit on grounds that the permit condition requiring development of an acceptable water management plan should be accomplished prior to issuance of the permit; that the long range environmental impact of the proposed project

      has not been assessed; that the application does not contain information sufficient to give reasonable assurances that it will no result in deterioration of water quality; that insufficient information has been provided to demonstrate that the project will not have an adverse long-range impact on the conservation of fish, marine and wildlife, or other natural resources; that the aquifer recharge area adjacent to the proposed project will be substantially reduced; that sheet flow of overland water will be irretrievably altered; that land uses surrounding the Six Mile Cypress Swamp will contribute to deteriorating water quality; that elimination of the proposed bicycle path would deny Petitioners the right to utilize pedestrian, energy conserving and/or non-polluting transportation; and that the health and welfare of the Florida panther will be threatened by construction in the Six Mile Cypress Swamp which serves as habitat for this endangered species.

      
      

   4. Petitioners allege in their Amended Petition that their substantial interests would be affected ". . . in that Petitioner Joseph H. Burgess, a resident of Daniels Road, may suffer from downstream flooding as a result of issuing this permit." The Amended Petition alleged that Petitioner, Sierra Club

      - Calusa Group would be substantially affected by the proposed agency action in that they would ". . . be deprived of an area utilized for nature study . . .," in that the project would ". . . seriously impair the group's ability to study bird life and enjoy the natural scenic beauty of a presently relatively undisturbed area. . . ." The Amended Petition also alleged that Petitioners, Mary Ann Wallace and Joseph H. Burgess, would be substantially affected ". . . as nearby residents, who will be denied the right to enjoy a proposed regional park on the south side of Daniels Road in the Six Mile Cypress Swamp as a direct result of issuing this permit."

      
      

   5. Neither Joseph H. Burgess, Ellen Peterson, nor any representative testifying on behalf of Sierra Club - Calusa Group appeared or testified at the final hearing in this cause.

      
      

   6. The only named petitioners appearing and testifying at the final hearing were Mary Ann Wallace and Thomas Geary. Neither of these petitioners offered any testimony to establish that they owned property in Lee County, Florida, that they used any of the waters or other natural resources in the area of the Six Mile Cypress Swamp for nature study, recreation or other purpose, or that they would personally be injured or otherwise affected by issuance of the requested permit or the alleged environmental impacts arising therefrom.

      
      

   7. At the conclusion of Petitioners' case, the Department and Lee County moved to dismiss the Amended petition on grounds that Petitioners had failed to establish that their substantial interests would be affected by the proposed agency action as required by Section 120.57, Florida Statutes, which motions were granted.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The right to a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes, is conferred in those instances where ". . . the substantial interests of a party are determined by an agency." Section 120.57, Florida Statutes. Accordingly, a condition precedent to the granting of relief requested in a petition filed pursuant to Section 120.57(1), Florida Statutes, is that the petitioning party demonstrate that its "substantial interests" will in some fashion be affected by proposed agency action.

   9. Chapter 120, Florida Statutes, does not attempt to define "substantial interests," or to catalog interests embraced within the meaning of that term. As indicated by the court in Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230, 1232 (Fla. 1 DCA 1978), "[a]ny attempt to comprehend in depth the meaning of standing involves a careful study of the pertinent provisions of the new APA, compared with the 1961 Act as well as a comparison with the federal APA and the cases interpreting it." The Jerry court quoted with approval the following definition of 'substantial:' . . . consisting of or relating to substance . . . not imaginary or illusory, . . . considerably large." The Jerry court also indicated that Federal court decisions dealing

with the issue of standing ". . . often turn upon issues pertaining to whether a person seeking relief has shown that his interests are substantial and not illusory." Id. at 1233. Thus, in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed. 2nd 636 (1972) the United States Supreme Court held that standing to seek review under the Federal Administrative Procedure Act existed only for those parties who could show ". . . that the challenged action had caused them 'injury in fact,' and where the alleged injury was to an interest 'arguably within the zone of interests to be protected or regulated' by the statutes that the agencies were claimed to have violated." 405 U.S. at 734, 92 S.Ct. at 1365. As indicated by the Jerry court, the Sierra Club decision

. . . stressed the importance that a party seeking judicial review must himself be among the injured for it is this requirement which gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders. 355 So.2d at 1233-1234.

10. In United States v. S.C.R.A.P., 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed. 2nd 254 (1973), the United States Supreme Court made clear that its Sierra Club decision requiring a showing of "injury in fact" to establish standing did not require a showing of "economic harm." Rather, actual aesthetic and environmental harm to a party's use and enjoyment of natural resources was held to be sufficient to establish standing. The S.C.R.A.P. court was careful to point out, however, that:

. . . A plaintiff must allege that he has been or will, in fact, be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action. And it is equally clear that the allegations must be true and capable of proof at trial. But we deal here simply with the pleadings in which appellees alleged a specific and perceptible harm that distinguished them from other citizens who had not used the natural resources that were claimed to be affected.

412 U.S. at 688-689, 93 S.Ct. 2416-2417

[Emphasis added.]

1. Although Petitioners herein alleged facts sufficient in their Amended Petition which, if proven, would have established that their "substantial interests" within the meaning of Section 120.57(1), Florida Statutes, would be

   affected by the proposed agency action, they failed to adduce testimony at the final hearing in this cause to establish and substantiate those allegations.

   
   

2. Petitioners cite Section 403.412(5), Florida Statutes, in an attempt to establish their standing in this proceeding as a matter of law. That statute provides as follows:

   
   

   In any administrative, licensing, or other proceeding authorized by law for the protection of the air, water, or other natural resources of the State from pollution, impairment, or destruction, the Department of Legal Affairs, a political subdivision or municipality of the State, or a citizen of the State shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has, or will have the effect of impairing, polluting, or otherwise injuring

   the air, water, or other natural resources of the State.

   
   

3. Aside from the fact that Petitioners failed to file the required verified pleading in this proceeding, it is the specific conclusion of this Recommended Order that, notwithstanding the provisions of Section 403.412(5), Florida Statutes, a petitioner in a Section 120.57(1), Florida Statutes, hearing is required to further establish that his "substantial interests" will be affected by proposed agency action before relief in such a proceeding may be granted. A contrary construction of these two statutory provisions could result exposing both state agencies and private permit applicants to unnecessary and unconscionable delay and expense where formal administrative proceedings are requested by persons having no personal stake in the outcome of the proceedings, thereby rendering those proceedings, ". . . no more than a vehicle for the vindication of the value interests of concerned bystanders." Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d at 1234. This result was clearly not intended by the Florida Legislature in enacting either Section 403.412(5), Florida Statutes, or Section 120.57(1), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Amended Petition in this cause.

DONE AND ENTERED this 27th day of February 1979 in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of February 1979.

COPIES FURNISHED:

Isaac Anderson, Esquire 2115 Main Street

Suites A and B

Fort Myers, Florida 33901

1. Ray Allen, Esquire

   Department of Environmental Regulation Twin Towers Office Building

   2600 Blair Stone Road Tallahassee, Florida 32301

   
   

   Thomas M. Brondstetter, Esquire Assistant Lee County Attorney Post Office Box 398

   Fort Myers, Florida 33902

   
   

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DEPARTMENT OF ENVIRONMENTAL REGULATION

   
   

   ELLEN PETERSON, et al.,

   
   

   Petitioners,

   
   

   vs. CASE NO. 78-1467

   
   

   STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION and LEE COUNTY BOARD OF COUNTY COMMISSIONERS,

   
   

   Respondents.

   /

   
   

   FINAL ORDER

   
   

   BY THE DEPARTMENT:

   
   

   On February 27, 1979, the duly appointed Hearing Officer in the above- styled matter submitted to the Department and all parties a Recommended Order

   consisting of Findings of Fact, Conclusions of Law and a Recommended Order. A copy of said Order is attached hereto as Exhibit "A".

   
   

   Pursuant to Section 17-1.68, Florida Administrative Code, and Section 120.57(1)(b)8., Florida Statutes, all parties were allowed ten (10) days in which to submit exception to the Hearing Officer's Order. No exceptions have been filed by Respondent, Petitioner did file exceptions in this matter attached hereto as Exhibit "B". The Recommended Order and Exceptions thereafter came before me, as head of the Department, for final agency action on this matter.

   
   

   Having carefully considered the Recommended Order and Exceptions submitted herein and being otherwise fully advised, it is therefore,

   
   

   ORDERED that the Hearing Officer's Recommended Order be, and hereby is adopted in toto as the final action of this agency. The Exceptions filed by Petitioner's have been specifically rejected, for the following reasons:

   
   

   1. Petitioner's exhibits 1 through 4 were not received into evidence due to relevance and hearsay rules of evidence.

      
      

   2. There was competent substantial evidence by the Department of Environmental Regulation that the water management plan would not be submitted until one (1) year after construction of the project.

      
      

   3. There was competent substantial evidence given at the hearing that the Melaleuca Control Committee would not be setup until sixty (60) days after issuance of the permit.

      
      

   4. Rick Bantz, Dinesh Sharma, Mary Ann Wallace and Thomas Geary did testify, but not on behalf of the Sierra Club.

      
      

   5. Rich Bantz, Dinesh Sharma, Mary Ann Wallace and Thomas Geary did not testify as to how they would be affected individually if the Daniels Road permit was issued.

      
      

   6. The fact that Mary Ann Wallace owns property near Daniels Road is in the record.

      
      

   7. Petitioner was represented by counsel and he was expected to know the

      law.

      
      

   8. The testimony given at the hearing does not support the contention that

this project will violate water quality criteria of the State of Florida. Accordingly, the permit shall be issued within fifteen (15) days by the Department of Environmental Regulation's South Florida District Office.

DONE AND ENTERED this 17th day of April, 1979 at Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JACOB D. VARN

Secretary

Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Telephone: (904) 488-4807

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing "Final Order" was filed in the official records of the Department on this 17th day of April, 1979, and that a true and correct copy of the same has been furnished by United States Mail to MARY ANN WALLACE, Route 13, 35 Brynwood, Fort Myers, Florida 33908, and THOMAS M. BRONDSTETTER, ESQ., Assistant Lee County Attorney, P.O. Box 398, Fort Myers, Florida 33902.

H. RAY ALLEN

Assistant General Counsel State of Florida Department of

Environmental Regulation Twin Towers Officer Building 2600 Blair Stone Road Tallahassee, Florida 32301

Telephone: (904) 488-9730

Docket for Case No: 78-001467

Orders for Case No: 78-001467