W. C. COMPANY, INC., )
AND D.W. KNAPPEN and )
BETTY T. KNAPPEN, his wife )
)
Petitioners, )
)
vs. ) CASE NO. 78-1683
)
STATE OF FLORIDA, DEPARTMENT )
OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
The final hearing in this case was conducted on November 20, 1978, in Tallahassee, Florida. The following appearances were entered: Kenneth G. Oertel, Tallahassee, Florida, representing the Petitioners, J.W.C. Company, Inc. et al.; and Alfred W. Clark, Tallahassee, Florida, representing the Respondent, Department of Environmental Regulation.
On or about August 31, 1978, the Petitioners filed a petition for an administrative hearing with the Department of Environmental Regulation. The Petitioners alleged that they had been parties in proceedings in which the Florida Department of Transportation ("DOT") was seeking permits from the Florida Department of Environmental Regulation ("DER") in connection with a road widening project in Pinellas County, Florida. Petitioners further alleged that they advised DER of their opposition to the project, and that DER thereafter issued water quality permits to DOT without properly notifying the Petitioners, thus depriving the Petitioners of their rights to an administrative hearing.
Petitioners are seeking an order determining that the water quality permits issued to DOT are invalid. On or about September 15, 1978, DER forwarded the petition to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing pursuant to Section 120.57(1)(b)(3), Florida Statutes. A copy of the petition was forwarded to DOT, but DOT did not participate in the hearing. The final hearing was scheduled to be conducted on November 20, by notice dated September 22, 1978.
At the final hearing the Petitioners and DER agreed that there were no disputed issues of fact. An oral recitation of pertinent facts were made by counsel for the parties at the hearing, and the parties stipulated to these facts. Petitioners' Exhibits 1, 2, and 3; and Respondent's Exhibits 1 and 2 were received into evidence. Official recognition was taken of the provisions of Chapter 17, Florida Administrative Code. The parties have submitted post- hearing legal memoranda.
FINDINGS OF FACT
The Florida Department of Transportation is seeking to initiate a project to widen a portion of Gulf Boulevard (State Road 699) on Treasure
Island, Pinellas County, Florida. In connection with the project, DOT filed an application for "complex source permit" with DER prior to April, 1976. The Petitioners filed a petition and request for public hearing in connection with that application on April 19, 1976. The matter was forwarded to the office of the Division of Administrative Hearings for further proceedings. DER thereafter attempted to withdraw its complex source permit rule. DOT withdrew its application for permit, and by order entered September 30, 1977, a Hearing Officer of the Division dismissed the case. The effort to repeal the complex source permit rule was later determined to be invalid, DOT re-applied for a permit, and Petitioners renewed their request for a hearing by petition dated April 18, 1978. Proceedings were thereafter conducted before the Division of Administrative Hearings, and a recommended order was entered on December 6, 1978.
On December 6, 1976, DOT filed an application for dredge and fill permit with DER respecting the same road-widening project. The permit was issued by the Southwest District Office of DER, which is located in Tampa. Notice of the pendency of the dredge and fill permit application was published in a local newspaper of general distribution. No direct notice, however, was given to the Petitioners. The Petitioners directed an inquiry as to the existence of outstanding permit applications in connection with the project by letter dated October 18, 1977. The Department responded advising the Petitioners as follows:
Dredge and fill permits for the installation of culverts have been applied for in our Southwest District Office. The permits are
currently pending and the application files. . . are available for inspection daily.
Despite the fact that the permit had actually been issued nearly seven months earlier, DER did not advise the Petitioners that the permit had been issued, but only that it was pending. Petitioners apparently made no further inquiry respecting the dredge and fill permit until they learned, in connection with proceedings being conducted respecting the complex source permit application, that the dredge and fill permit had been issued. The Petitioners promptly thereafter initiated this proceeding.
A copy of the petition in this proceeding was forwarded to counsel for the Department of Transportation by the Petitioners. At a pre-hearing conference conducted in the complex source permit proceeding, counsel for DOT indicated that it may participate in this proceeding. Counsel for DER discussed this proceeding with counsel for DOT and was advised that DOT would not become a party to this proceeding. DOT has not appeared as a party to this proceeding. No evidence was offered to establish whether DOT has taken any action to complete the work authorized by the dredge and fill permit that was issued.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and over the parties. Section 120.57(1), Florida Statutes.
The Petitioners have a substantial interest in the dredge and fill permit application that DOT filed with DER. In cases in which a permit has been issued to a permit applicant without notice to a substantially affected party who requested such notice, the party is entitled to a hearing if without fault,
and if the applicant has not undertaken construction under authority of the permit, or has not otherwise relied upon the permit to its detriment. Booker Creek Preservation, Inc. v. City of St. Petersburg, DOAH Case NO. 78-1053, Environmental Regulation Commission Order issued September 21, 1978, Department Order issued September 22, 1978; Freeport Sulphur Company et al. v. Department of Environmental Regulation et al. DOAH Case No. 78-527, Final Order issued November 9, 1978. Interested parties who seek to reopen a permit application proceeding have the affirmative duty to establish first that they properly requested notice of action on the permit application, and that the applicant has not undertaken construction or otherwise relied to its detriment upon the permit.
Petitioners contend that the petition and request for public hearing and other relief that they filed with the Department of Environmental Regulation on April 19, 1976, constitutes a request that they be notified with respect to future permit applications in connection with the proposed highway widening project. This contention is without merit. While the petition is broadly worded, and expresses the Petitioner's objections to the proposed project in general terms, it was filed in connection with DOT's complex source permit application. It was the document that initiated hearing procedures in connection with that permit application. It contains no request that Petitioners be notified or any other permit applications that might be filed by DOT in connection with the project, and indeed, would have been an inappropriate vehicle to advance such a request. Petitioners did not request that they be notified respecting other pending applications until October 24, 1977, when their letter dated October 18, 1977 was received by DER. That request was not addressed to DER until some seven months after the dredge and fill permit had been issued. DER's failure to advise Petitioners in response to that letter that the permit had already been issued evidences an unfortunate failure of communications between various offices within DER. The failure nonetheless did not prejudice the Petitioners since any rights that they had to notice had been extinguished some seven months earlier by issuance of the permit.
Petitioners have failed to establish that they requested notification of action with respect to the dredge and fill permit prior to the time the permit was issued.
No evidence was offered from which it could be concluded whether DOT has undertaken any construction under authority of the dredge and fill permit issued by DER, or whether DOT has otherwise acted in reliance upon the permit. Petitioners have failed to establish their entitlement to a reopening of the license application proceeding in this regard.
