RODRIQUEZ, TRAFALGAR DEVELOPERS ) OF FLORIDA, INC., and DEPARTMENT OF ) ENVIROMENTAL REGULATION, )
Respondents. )
Pursuant to notice, this cause was scheduled for an administrative hearing to be held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on March 18, 1980, in Room 349 of the Orange County Courthouse, Orlando, Florida.
For petitioners and Cleatous J. Simmons Intervenors: Lowndes, Drosdick and Doster
For Respondents Roger D. Schwenke
Rodriguez and Carlton, Fields, Ward, Emmanuel, Trafalgar: Smith and Cutler, P.A.
For Respondent Stanley J. Niego Department of Office of General Counsel
At the commencement of the final administrative hearing in this cause, and without prior written motions or legal memoranda having been filed, the respondents Department of Environmental Regulation and T.V. Rodriguez and Trafalgar Developers of Florida, Inc. orally moved to dismiss this cause on jurisdictional grounds. The basis for such motion was that the dredge and fill permit in dispute herein constituted final agency action not subject to review in a hearing requested pursuant to Florida Statutes, 120.57. There being certain factual matters necessary for a proper disposition of the motion, as well as a consideration of case law and prior agency determinations on similar questions, which had not been presented to the Hearing Officer, the undersigned
reserved ruling on the motion and proceeded with the hearing. All parties were invited to submit legal memoranda on the motion to dismiss. The respondents Rodriguez and Trafalgar, and the petitioners and intervenors filed such memoranda. The same have been carefully reviewed and considered by the undersigned Hearing Officer. Inasmuch as a ruling on the motion to dismiss for lack of jurisdiction is dispositive of this proceeding, only those facts adduced at the hearing which have relevance to this issue are set forth herein.
It should be noted that the respondents also moved to dismiss this cause on the basis that the petitioners and the intervenors lack standing to challenge the subject permit. Much of the testimony at the hearing pertained to the question of whether the petitioners and/or the intervenors established either by the pleadings or by the evidence that their substantial in- terests were affected by the issuance of the dredge and fill permit. Again, inasmuch as the jurisdictional issue is dispositive of all other issues, this recommended order does not address the question of standing apart from jurisdiction.
Upon consideration of the oral and documentary evidence adduced at the hearing relating to the issue of jurisdiction, the following relevant facts are found:
On or about March 28, 1979, respondents T.V. Rodriquez and Trafalgar Developers of Florida, Inc. filed with the Department of Environmental Regulation an application for a permit to conduct dredge and fill activities on a 2.3 acre area located within a 495 acre planned unit development in Orlando. The 2.3 acre tract is located in a cypress swamp area in the northeast portion of the development site. The application sought authority to excavate 2,000 cubic yards of material for the installation of a five foot diameter drainage culvert, and to backfill the installed pipe with 3,000 cubic yards of fill material. All of the construction activity was to be confined to the 2.3 acre tract which, as noted above, was a cypress swamp area interior to the project boundaries. While there were no other property owners immediately adjacent to the cypress swamp upon which the dredging and filling was to occur, the applicants did provide for notification purposes the names of two property owners which were the closest, although not adjacent, to the proposed project site. Neither the petitioners nor the intervenors in this proceeding were among the two names provided.
The Department of Environmental Regulation reviewed the application and, on April 5, 1980, requested further infor- mation. Upon receipt of this information, an employee of DER, Jim Morgan, conducted a field inspection of the dredge and fill site on May 10, 1979. It was Mr. Morgan's conclusion that the proposed project would result in the elimination of approxi- mately three percent of the wetlands associated with the eastern boundary of the 495 acre development, and would not significantly impact the remaining portion of the wetland community. Mr. Morgan recommended that the application be approved, with two specific conditions. One condition pertained to the containment of turbidity at the project site if the site is inundated during construction. The other condition pertained to a proposed swale for outfall of a planned ditch system for the drainage of the 495 acre planned unit development.
On May 18, 1979, the Department of Environmental Regulation issued Permit No. 48-18682-4E to respondents to excavate 2,000 cubic yards of material for the installation of a five foot diameter drainage culvert and to backfill the installed pipe with 3,000 cubic yards of fill material suitable for use as-a
golf course foundation. The permit contained the specific conditions recommended by Mr. Morgan. Specific Condition Number 1 reads as follows:
"(1) The drainage plan for this proposed 495 acre planned unit development will require the lowering of the water table via way of a planned ditch system, thus making development feasible.
This ditch system will ultimately [sici discharge to an existing county canal via way of a proposed swale, which is exempt from this department's per- mitting pursuant to Chapter 17-4.04(10)(k). A swale conveys water only during and immediately after the advent of a storm. This installation
must conform to this explicit definition, otherwise, additional dredge and fill permits will be required, including the entire development's drainage facility. Upon completion of the development, this department shall be notified and periodic inspections will be performed by the department's staff to determine if the outfall conforms with the definition of a swale."
By letters to DER dated August 20, 1979, the petitioners herein stated that they had just been informed on August 17, 1979, of the issuance of the subject permit to the respondents. Their original letters to the DER, as well as their amended and restated petition, claim that, as owners of property located adjacent to the property upon which the drainage project would be conducted pursuant to the subject permit, they were entitled to notice prior to the issuance of the permit and that their substantial interest will be affected by the drainage project authorized by said permit.
The petitioners Frances Bandy and Charles R. Bandy own Lot 14 in Golden Acres which is a considerable distance from the 2.3 acre tract upon which respondents are permitted to conduct dredging and filling activities. The petitioners Anna and Lee Rowe and Fay M. Handy own Lots 20 and 21 in Golden Acres, as well as a five acre lake. These lots and lake are even further from the permitted dredge and fill site. None of the petitioners own property which is adjacent to the permitted 2.3 acre site.
Betty J. Hardy, Wayne Hardy and Vista Landscaping Inc. moved to intervene in this proceeding by motion dated March 5, 1980. An amended motion to intervene was filed on March 17, 1980, adding Julian T. Hardy as a named party intervenor. The intervenors own and have a business interest in property located a considerable distance south of the permitted 2.3 acres. The intervenors conduct a wholesale nursery business on their property. Their complaint lies with the effect that the proposed drainage of the entire 495 acre development and the alleged drainage ditch located on property contiguous to their property will have on their property and business interests.
As of the time of the hearing on March 18, 1980, construction pursuant to the permit issued on May 18, 1979, was approximately ninety-five percent (95 percent) complete.
CONCLUSIONS OF LAW
When considering jurisdiction, the question is whether the issuance of the dredge and fill permit on May 18, 1979, constituted final agency action on the respondent's application for a permit. If this can be answered
affirmatively, the only remedy for review is by appeldate proceedings, either administrative or judicial, and the Division of Administrative Hearings is without jurisdiction over the subject matter of this proceedings.
In order to determine whether final agency action has already occurred, it is necessary to consider the case law on the subject, prior agency practice and DER's rules relating to notice and requests for hearings.
Generally speaking, the actual granting or denial of a permit or license constitutes final agency action. Bureau of Community Medical Facilities
v. Samson, 341 So.2d 1071 (Fla. 1st DCA, 1977). Hearing Officers with the Division of Administrative Hearings have no collateral review power over final agency action. Dept. of Health and Rehabilitative Services v Barr, 359 So.2d
503 (Fla. 1st DCA, 1978). This general case law has exceptions where the "final" action taken by the agency was not preceded by notice or other concepts of due process or requirements of the Administrative Procedures Act. Capeletti Brothers, Inc. v. State of F1a. Dept. of Transportation, 362 So.2d 346 (Fla. 1st DCA, 1978); Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA, 1977). Graham Contracting, Inc. v. Dept. of General Services, 363 So 2d 810 (Fla. 1st DCA, 1978)
The Department of Environmental Regulation itself has recognized this exception on several occasions. In the case of Freeport Sulohur Co., et al. v. DER and Agrico Chemical Company, (DOAH Case No. 78-527), Nov. 9, 1978, the DER specifically rejected the proposition that a Section 120.57, Florida Statutes, hearing could not be held on a prior permit issued by the Department. There, the final order of the DER states
"Infrequently, a Department permit may be inadver- tently or mistakenly issued, without affording a party an opportunity to file the appropriate Section 120.57 petition prior to issuance of the permit. In such cases, if, as is true in this case, the petitioner is without fault, and the applicant has not constructed pursuant to, or relied on the permit, to its detriment, it is the Department's practice, upon petition, to sub- ject the contested permit to a Section 120.5? hearing."
Thus, in this instance, the question of whether the petitioners were entitled to receive notice of the application for a permit and/or the Department's intent to issue the permit is of paramount importance. For a determination of this issue, the Department's rules must be considered. Fla. Admin. Code, Rule 17-4.28(11)(c) requires the DER to forward a copy of a dredge and fill application to "adjacent waterfront property owners as indicated on the application-forms." In this instance, there were no waterfront property owners adjacent to the dredge and fill site. DER's Rule 17-1.62, Fla. Admin. Code, provides that the "failure of a substantially affected person to request a hearing within fourteen (14) days after his receipt of actual notice constitutes a waiver of any right to a hearing under Section 120.57, Florida Statutes. And, if no hearing is timely requested, the agency action is deemed uncontested, true and final, subject only to administrative appeal and judicial review. Fla. Admin. Code, Rule 17-1.62(2) and (3). Here, while the evidence and pleadings indicate that petitioners did request a hearing within fourteen days of their actual notice of the permit which had issued some three months prior to the request for hearing, neither the pleadings nor the evidence demonstrate that petitioners were or are substantially affected by the dredge and fill permit.
The permit in dispute is a permit to conduct dredging and filling activities on a 2.3 acre site located some distance from the property owned by the petitioners and the intervenors. The complaint of the petitioners, as well as the intervenors, is not with the dredging and filling activities on the 2.3 acre site. Instead, their complaint is with the alleged adverse effects of the drainage system to be conducted for the entire 495 acre development project. The permit in dispute herein does not purport to govern the overall drainage of the 495 acre development. Specific condition number one simply notes that if the project's drainage plan operates in a way different than as represented, to wit: drainage into something other than a proposed swale (exempt from DER's permitting jurisdiction) at the southerly portion of the 495 acres, then "additional dredge and fill permits will be required." It may well be that the respondents' activities require additional permitting at this time. Or, it may
be that the respondents are in violation of the permit which has been granted to them. In either case, those are matters between them and DER, and it is not proper for third persons to invoke the administrative hearing processes of Florida Statutes, 120.57(1) in an attempt to try those matters under the guise of seeking a hearing on nonfinal administrative determinations which affect their substantial interests. It is clear that the subject permit is for dredging and filling activities on a 2.3 acre tract for which neither the petitioners nor the intervenors were entitled to notice prior to the issuance of the permit. Thus, the permit which was issued in May of 1979 constituted final agency action as to these petitioners and intervenors.
In addition, the applicant has relied on the permit issued to it to the extent that approximately ninety-five percent (95 percent) of the work authorized under the permit has been completed. To allow third persons who were not entitled to receive notice in the first place to now request a hearing de novo on the issuance of the permit would work an extreme injustice upon the applicants who have relied on the permit to their detriment.
In summary, it is concluded that the permit which was issued to the respondents Rodriquez and Trafalgar in May of 1979 constituted a final order of the Department of Environmental Regulation, and that neither the Division of Administrative Hearings nor the Department of Environmental Regulation has jurisdiction to hold a Florida Statutes, section 120.57 hearing concerning the issuance of that permit.
