STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LINDA L. YOUNG, )
)
Petitioner, )
)
vs. ) CASE NO. 90-7348
) NEAL COLLEY and THE DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on March 1 and 4, 1991, in Gulf Breeze, Florida.
APPEARANCES
For Petitioner: Linda L. Young, pro se
3026 Ranchette Square
Gulf Breeze, Florida 32561
For Respondent
Colley: Steve Lewis, Esquire Post Office Box 1876
Tallahassee, Florida 32302
For Respondent
Department: Michael P. Donaldson, Esquire
2600 Blair Stone Road Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUE
Whether Respondent Neal Colley should be issued a permit to fill certain wetlands located within the regulatory jurisdiction of the Department of Environmental Regulation.
PRELIMINARY STATEMENT
On September 13, 1990, the Department of Natural Resources forwarded a request by Neal Colley for hearing on the Department's proposed denial of Colley's application to fill certain wetlands, Case No. 90-5791. By Notice of Hearing dated October 10, 1990, the assigned Hearing Officer scheduled the case to be heard January 25, 1991.
On November 21, 1990, the Department of Natural Resources forwarded the petition of Linda L. Young for hearing on the Department's proposed award of a fill permit for Colley's modified application to fill certain wetlands, Case No. 90-7348. On December 27, 1991, the cases were consolidated.
On January 24, 1991, pursuant to an oral request by Young, the hearing was continued to March 1, 1991. On February 22, 1991, the cases were transferred to the undersigned.
The hearing had been scheduled for one day, March 1, 1991. The parties were unable to conclude case presentations on March 1. Because of previous commitments, the parties were unable to reconvene until March 4, 1991, at which time the hearing was completed.
During the hearing, counsel for Colley withdrew the request for hearing in Case No. 90-5791. Accordingly, Case No. 90-5791 is severed and dismissed by separate order issued this date.
Petitioner Linda L. Young presented the testimony of Ed Gray, Olin Tisdale, Sharon Gincauskas, William T. Young, Joe Lloyd and offered into evidence exhibits numbered 1-3 and 5-12. Respondent Neal Colley presented the testimony of Ken Horne and Ross McWilliams and offered into evidence exhibits numbered 1-7 and 9. Respondent Department of Natural Resources presented the testimony of Mark Sowell, Cliff Rohlke, and Robert Kriegel and offered into evidence exhibits numbered 1-2. All exhibits were admitted into evidence.
A transcript of the hearing was filed on March 18, 1991. All parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.
FINDINGS OF FACT
The Department of Environmental Regulation is the agency with regulatory jurisdiction over the subject matter of this case, pursuant to Chapter 403, Part VIII, Florida Statutes, and related administrative rules.
On or about October 19, 1989, Neal Colley (hereinafter "Colley") filed his Permit Application No. 571717171 with the Department of Environmental Regulation (hereinafter "DER") seeking a permit to fill wetlands located within the regulatory jurisdiction of the Department.
Colley's application was related to a residential development identified as the Deer Point subdivision located in Gulf Breeze, Florida. As proposed in the application, the subdivision would contain 0.91 acres of fill in jurisdictional wetlands, 31 buildable lots and a 31 slip marina. The site of the development is adjacent to Pensacola Bay and Santa Rosa Sound, Class III waters.
In February, 1990, Colley modified the application by deleting the proposed marina. Colley also proposed to fill on an additional 14 lots, bringing the total of jurisdictional wetlands fill to 2.8 acres.
On July 6, 1990, subsequent to review of the application, the DER published notice of it's intent to deny Colley's application. The DER based the action on Colley's failure to provide reasonable assurances that the project would not result in significant wetlands habitat loss and water quality degradation. Colley filed a request for administrative hearing challenging the intent to deny the application. 1/
Thereafter, Colley and the DER discussed several amendments to the application directed at meeting the DER's objections to the original application. On or about August 20, 1990, Colley modified the proposed development by reducing the total number of lots to 31 and reducing the fill required. Colley further agreed to other conditions designed to otherwise mitigate the apparent adverse impacts of the project.
In determining the acceptability of a mitigation proposal, the DER weighs the proposal and assigns "credit" for the mitigation proposal which provides a quantifiable method of evaluating a mitigation proposal. For example assignment of a 1 to 1 ratio indicates that there must be one acre of "mitigation" for every one acre of fill. In this case, the combined mitigation credit would allow the filling of 2.16 acres of fill.
In his mitigation proposal, Colley reduced the amount of fill for which permission is sought to 2.14 acres in jurisdictional wetlands. This is the minimum which will provide Colley with an economically acceptable number of buildable lots.
As onsite mitigation, Colley agreed to convey 29.2 acres of high quality wetlands adjacent to the existing public "Shoreline Park" to the City of Gulf Breeze for preservation as an additional public park. Of the 29 acres, 9 are jurisdictional wetlands which the DER assigned a mitigation ratio of 70 to
The remaining 20 wetlands acres were assigned a mitigation ratio of 50 to 1. The application of the mitigation ratios to the 29 acres results in credit of
.50 acres of fill.
Colley also agreed to offsite mitigation in the form of preservation of 46 acres of high quality jurisdictional wetlands at Innerarity Island, to be conveyed by Colley to the University of West Florida. The DER assigned a mitigation ratio of 100 to 1, resulting in a credit of .46 acres of fill.
Colley further agreed to onsite creation of 1.47 acres of marsh. The marsh creation plan provides for scraping down the land surface between two existing wetlands areas and planting the scraped surface with wetlands vegetation consistent with the vegetation found in the existing wetlands. Based upon the location of the wetlands creation and the availability of suitable vegetation for transplantation, there is a substantial likelihood that the created wetlands will function successfully. The DER assigned a mitigation ratio of 1.25 to 1, resulting in a credit of 1.2 acres of fill.
The DER staff, both locally and in Tallahassee, reviewed the amended project and determined that the proposal, as amended, was acceptable under the DER's standards. The DER gave notice of it's intent to issue the permit for the amended project proposal.
The greater weight of evidence establishes that the amended project will not violate water quality standards. In the short term construction phase, the permit requires sequencing of construction and use of hay bales and other turbidity screens to prevent discharge of runoff into the adjacent wetlands. In
the longer term, post-construction phase, the project utilizes a system of retaining walls and buffer swales which are designed to prevent direct discharge of stormwater into the wetlands areas. The project permit requires utilization of best management practices and design standards which should operate to prevent violation of water quality standards.
The greater weight of evidence establishes that the amended Colley project is not contrary to public interest. The preservation of a total of 75 acres of high quality wetlands by conveyances to the City of Gulf Breeze and the University of West Florida eliminates further development pressure in the parcels, and is clearly in the public interest. The evidence fails to establish that the project will adversely affect the public health, safety, or welfare or the property of others.
There is no evidence that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitat or that the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The biological impacts of the amended project are minimal. There is no evidence that endangered or threatened species habitat in the area. There was anecdotal testimony related to adverse impacts on fishing allegedly resulting from other development. However, the evidence is insufficient to establish that this project will adversely affect fishing.
There is sporadic water exchange between the surrounding bays and the interior wetlands, likely caused by periods of high rainfall which result in outflows of water from the wetlands into the bays. Water flowing from the bays to the wetlands may occur on occasion, however, water salinity samples taken immediately prior to the hearing showed, at most, minimal salinity in the wetlands. The types of vegetation and marine organisms within the wetlands are more common to fresh water areas than to salt water marsh. There is no evidence that the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling.
The permanent nature of the project and the wetlands preservation conveyances provide a public benefit and are in accordance with the mitigation criteria. The existing wetlands to be preserved are acknowledged to be of high quality. Considering the site and existing vegetation adjacent to the location of the proposed 1.47 acres of created wetlands, the probability for success of the created wetlands area is substantial. It is highly likely that the created wetlands will provide the same conditions and functional values as the impacted wetlands.
There is no evidence that the project will adversely affect or will enhance significant historical and archaeological resources.
The evidence establishes that the adverse impacts which led to the DER's original determination not to permit the project, are either eliminated by the modification of the project or are offset by the mitigation plan which is part of the modified project.
As to the cumulative impacts of the project, the onsite preservation proposal results in providing permanent protection for a 29 acre wetlands parcel which could otherwise be permitted for development. Outside this project, including the 29 acre wetlands mitigation area, there are few undeveloped lots remaining in the Deer Point area which contain jurisdictional wetlands. Prior to development on these lots, permits would be required. The lots would be
required, on a case-by-case basis, to meet dredge and fill standards, and could be required to mitigate adverse impacts if such exist. The evidence establishes that the Colley project adequately mitigates any cumulative impact directly or indirectly related to this project.
At hearing, the Petitioner failed to testify or otherwise offer evidence that would support a finding that Petitioner is substantially affected by the DER's proposed issuance of the permit for Colley's Deer Point Subdivision.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The issue in this case is whether Neal Colley should be awarded a permit to fill approximately 2.14 acres of wetlands. As the applicant for the permit, Mr. Colley has the burden of proof in establishing that reasonable assurances have been provided that the proposed development and it's cumulative impacts will not violate state water quality standards and that the project is not contrary to public interest. Department of Transportation v. J.W.C. Company, Inc. 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the burden has been met.
A permit may not be issued unless the applicant provides the Department with reasonable assurance that water quality standards will not be violated. The department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state. Section 403.918(1), Florida Statutes.
The evidence establishes that the modified and mitigated project will not violate water quality standards. Utilization of best management practices and design standards will prevent violation of such standards, both in the short term construction phase and in the longer term post-construction phase.
Further, a fill permit may not be issued unless the applicant provides the Department with reasonable assurance that the project is not contrary to the public interest. For a project which significantly degrades or is within an Outstanding Florida Water, as provided by Department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest. Section 403.918(2), Florida Statutes. As set forth in Section 403.918(2)(a), Florida Statutes, in determining whether a project is not contrary to public interest, or is clearly in the public interest, the Department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
The Petitioner suggested that the project would cause degradation of Outstanding Florida Waters, allegedly located nearby, and thus is required to meet the more stringent "clearly in the public interest" standard. However, the waters adjacent to the project site are not Outstanding Florida Waters, but are Class III waters. The Petitioner's assertion that "adjacent waters" be construed to include waters other than those along the project's shoreline location is rejected.
The greater weight of evidence establishes that, on balance, the amended Colley project is not contrary to public interest. The evidence fails to establish that the project will adversely affect the public health, safety, or welfare or the property of others, that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats, that the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling, or that the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The permanent nature of the mitigation proposal results in a public benefit, that being the preservation of approximately 75 acres of high quality wetlands. The current condition and relative value of functions being performed by impacted areas is at the very least adequately addressed by the mitigation and the minimization of fill.
Upon review of Colley's original application, the DER determined that the adverse impacts of the project rendered it unpermittable. Pursuant to Section 403.918(2)(b), Florida Statutes, where the applicant is otherwise unable to meet the "public interest" criteria set forth at Section 403.918(2)(a), Florida Statutes, the Department, in deciding to grant or deny a permit shall consider measures proposed by or acceptable to the applicant to mitigate adverse affects which may be caused by the project.
The goals of the mitigation proposal shall be to offset the expected adverse impacts of the project that have resulted in the project being deemed umpermittable such that the resulting project with mitigation is not contrary to the public interest or, in the case of Outstanding Florida Water, is clearly in the public interest. Rule 17-312.330, Florida Administrative Code. It is necessary to first determine the probability that the proposed mitigation will offset the actual adverse impacts of the dredging and filling, including
cumulative impacts, as identified by those negative aspects of the project that resulted in a negative permitting balance. The Department in making this determination will consider the likelihood that the mitigation will be successful. Rule 17-312.340, Florida Administrative Code. The permit applicant shall provide the Department with reasonable assurances that the mitigation shall meet the success criteria in Rule 17-312.350, Florida Administrative Code. In this case, the result of Colley's mitigation plan is to render the project not contrary to the public interest, and at least as to the preservation of 75 acres of high quality wetlands, clearly in the public interest.
Mitigation means an action or series of actions that will offset the adverse impacts on the waters of the state that cause a proposed dredge and fill project to be not permittable. Rule 17-312.310(6), Florida Administrative Code. The Petitioner asserts that the conveyance of lands located outside the immediate area of the adverse impact is not appropriately considered as mitigation of such impacts. However, the credited testimony of DER officials directly responsible for implementation of the agency's rules established that such conveyance is acceptable as mitigation.
It is understood that in certain circumstances mitigation proposals for dredging and filling projects will not be able to offset the adverse impacts of the project sufficiently to yield a permittable project. Such instances may include projects that are in or would significantly degrade Outstanding Florida Waters, the presence of endangered species or the likelihood that a particular wetlands type may not be successfully created. Rule 17-312.300(5), Florida Administrative Code. There is no evidence that such circumstances exist in this case.
Rule 17-312.370(1)(a), Florida Administrative Code, provides that conservation easements or other such deed restrictions, and land conveyances, will be considered as mitigation only where they offset potential adverse impacts of the proposed dredging and filling, including cumulative impacts pursuant to Section 403.919, Florida Statutes. The rule further provides that property restrictions and conveyances may be considered as mitigation when they would preclude development in wetlands otherwise unprotected by the regulatory processes in Section 403.918, Florida Statutes, or in waters of the state that may be subject to future dredge and fill permit applications. In certain circumstances property restrictions on or conveyances of uplands adjacent to protected wetlands will be acceptable. The evaluation of the lands proposed for restriction or conveyance will be considered with respect to whether they would offset the negative aspects of the dredge and fill project that have rendered it unpermittable. Rule 17-312.370(1)(b), Florida Administrative Code.
The Petitioner asserts that wetlands which are already under the Department's regulatory jurisdiction pursuant to Section 403.918, Florida Statutes, are not appropriate for consideration as mitigation. The DER suggests that mere regulatory jurisdiction is not sufficient protection and that where a land conveyance precludes further development in wetlands, conveyances of such wetlands are acceptable as mitigation. Given the clear purposes of the Henderson Wetlands Protection Act, the DER's interpretation of the rule is reasonable.
Pursuant to Section 403.919, Florida Statutes, in deciding whether to grant or deny a permit for an activity which will affect waters, the Department shall consider cumulative or secondary impacts of the project, including the impact of the project for which the permit is sought, the impact of projects which are existing or under construction or for which permits or jurisdictional
determinations have been sought, and the impact of projects which are under review, approved, or vested pursuant to 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations.
The Petitioner asserts that the DER failed to consider the cumulative or secondary impacts of the development proposal. However, the evidence establishes that the DER considered such secondary or cumulative impacts as the agency saw appropriate for consideration.
In the proposed recommended order, Colley asserts that Linda L. Young failed to introduce any evidence by direct testimony or otherwise, which would establish that she was a substantially affected party. At hearing, the Hearing Officer inquired at to whether Ms. Young understood her right to counsel. Ms. Young acknowledged that she chose to represent herself. Ms. Young failed to establish that she was at all affected by, and therefore failed to establish her standing to challenge, the DER's proposed award of Colley's permit.
Based on the foregoing, it is hereby recommended that the Department of Environmental Regulation enter a Final Order dismissing the petition of Linda L. Young and granting permit number 571717171 to Neal Colley.
RECOMMENDED this 10th day of May, 1991, in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1991.
ENDNOTES
1/ DOAH Case No. 90-5791
APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7348
The following constitute rulings on proposed findings of facts submitted by the parties.
Petitioner Linda L. Young
Petitioner Linda L. Young's proposed findings of fact are accepted as modified in the Recommended Order except as follows:
3-5. Rejected, immaterial. While the DER's Kriegel initially sought to issue the permit, the staff analysis prevailed, and the DER issued the Notice of Intent to Deny the project. Implications related to Kriegel's actions are rejected as unneccesary.
6-7. Rejected, not supported by evidence. The Notice of Intent to Deny is not in evidence.
8-9. Rejected, unnecessary. The issue for hearing in the case is not the internal debate within the agency, but whether the application to fill meets the appropriate standards.
10. Rejected as to reference to the Notice of Intent to Deny, not in evidence. As to cumulative impacts, the testimony of Mr. Rohlke was not persuasive.
11-14. Rejected, contrary to the weight of credited testimony.
15. Rejected, unnecessary.
Respondent Neal Colley
Respondent Neal Colley's proposed findings of fact are accepted as modified in the Recommended Order.
Respondent Department of Natural Resources
Respondent Department of Natural Resources' proposed findings of fact are accepted as modified in the Recommended Order.
COPIES FURNISHED:
Carol Browner, Secretary
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Linda L. Young
3026 Ranchette Square
Gulf Breeze, Florida 32561
Steve Lewis, Esq.
Post Office Box 1876
Tallahassee, Florida 32302
Michael P. Donaldson, Esq.
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
LINDA L. YOUNG,
Petitioner,
vs. OGC CASE NO. 90-1679
DOAH CASE NO. 90-7348
NEAL COLLEY and THE DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On May 10, 1991, a hearing officer from the Division of Administrative Hearings (DOAH) submitted to me and all parties his recommended order, a copy of which is attached as Exhibit A. Exceptions were filed by Petitioner, Linda L. Young (Young), on May 28, 1991. The matter is now before me as Secretary of the Department for final agency action.
BACKGROUND
The Department issued an Intent to Deny on the project as proposed and Colley requested a hearing (DOAH Case No. 90-5791). Subsequent to filing the above petition, the Department and Colley held several meetings regarding the proposed project, which resulted in a scaled-down project and a mitigation proposal that the Department considered sufficient to offset the adverse impacts raised in the Intent to Deny. The modified application was deemed acceptable, andthe Department issued an Intent to Issue.
Young then requested an administrative hearing (DOAH Case No. 90-7348) challenging the Department's preliminary decision to permit Colley's scaled-down project, which would involve filling approximately 2.14 acres of jurisdictional wetlands. The permit was conditioned upon on-site mitigation in the form of creation of 1.47 acres of marsh and the preservation of 29.2 acres of wetlands,
9 acres of which are non-jurisdictional, for a public park to be conveyed to the City of Gulf Breeze; and off-site mitigation in the form of preservation of 46 acres of jurisdictional wetlands at Innerarity Island to be conveyed to the University of West Florida. Young alleged that the proposed project would violate water quality standards and damage aquatic habitat in the area, and that the mitigation plan was inadequate. The two cases were consolidated for hearing.
The hearing was held on March 1 and 4, 1991. During the hearing, Colley withdrew the request for hearing in Case No. 90-5791, which was severed and dismissed by the hearing officer. Subsequent to the hearing, the hearing officer issued his recommended order that the permit be granted.
RULINGS ON EXCEPTIONS
Young filed fifteen exceptions to the recommended order, thirteen of which are to findings of fact. My review of these exceptions is not required by Department rules as they are untimely filed. Rule 17-103.200(1), Florida Administrative Code (F.A.C.), provides that parties wishing to file exceptions to a recommended order must file those exceptions with the Department's Office of General Counsel within 15 days of the filing of the recommended order with the Clerk of DOAH, and that exceptions not received in the Office of General Counsel within this time period shall be rejected. See Mad Hatter Utility, Inc.
v. Department of Environmental Reculation and Pasco Countv, 10 FALR 3393, 3397 (DER 1988); Santa Fe Lake Dwellers Association, Inc. v. State of Florida Department of Environmental Recrulation and Santa Fe Pass, Inc., 9 FALR 923, 925 (DER 1987); and West Volusia Conservancy and Countv of Volusia v. Arbovetum Development Group, Inc., and State of Florida Department of Environmental Regulation, 9 FALR 5848, 5841 (DER Order of Remand dated March 20, 1987). Therefore, the exceptions are rejected.
However, my review of the recommended order indicates that the hearing officer's recommended conclusions regarding Young's standing are inconsistent with case law and with previous Final Orders of the Department. Therefore, I shall address the standing issue in this Final Order, which was also raised in Young's exceptions to the hearing officer's Finding No. 21 and to his conclusion of law denying standing.
In her petition for administrative hearing filed on November 9, 1990, which is a part of the record in this proceeding, Young alleged that she is a citizen of Gulf Breeze, Florida and uses the waters of Santa Rosa Sound, in which the proposed project is located, for fishing and recreational purposes. Nothing in
the record indicates that anything further was done by any party prior to the hearing to raise an issue as to Young's standing. Young did not put on evidence at the hearing to support the allegations of her petition regarding standing.
Likewise, no party took any further action to contest these allegations until Colley raised the issue in his proposed recommended order.
A similar situation was dealt with in Harbor Estates v. State of Florida Department of Environmental Regulation and Edmund Burke, 12 FALR 2391 (DER 1990). There, the hearing officer concluded that the issue of the Petitioner's standing was initially established in the petition as an issue for determination at hearing. However, the parties failed, in their prehearing stipulations or otherwise, to identify standing as an issue that remained to be determined at hearing (the Petitioner was represented by a qualified lay representative). At the conclusion of the hearing, Respondent Burke attempted to make an ore tenus motion to dismiss for lack of standing. The hearing officer concluded that Burke's assertion that the Petitioner lacked standing came too late. The hearing officer cited as his authority City of Destin v. Department of Transportation, 541 So.2d 123, 127 (Fla. 1st DCA 1989), and Yachting Arcade, Inc. v. Riverwalk Condominium Assoc., Inc., 500 So.2d 202 (Fla. 1st DCA 1986).
In Citv of Destin, the court found that DOT could not raise for the first time on appeal that the City did not have standing to be heard in a Section
proceeding, where the City filed its petition for hearing and the matter went normally through the evidentiary hearing and final order with no hint that standing was an issue. In Yachting Arcade, the court held that where the Petitioner in the Section 120.57 proceeding was represented by a qualified lay representative at hearing, and the Respondent failed to object to the petition, the qualifications of the representative, or Petitioner's standing in the lower tribunal, the failure to object to those matters at the administrative hearing made those issues unreviewable by the appellate court.
Based on the above authorities and analysis, I find in the instant case that the failure of any party to take appropriate action to raise the issue of Young's standing, whether by motion to dismiss, prehearing proceedings, or even at the administrative hearing itself, effectively prevents Colley from raising the issue for the first time in his proposed recommended order, when the Petitioner is unable to meet the objection or rebut it. "Trial by ambush" is not to be favored in an administrative proceeding that has been purposefully designed to allow for informal access to the quasi-judicial process by pro se litigants. See generally The Florida Bar v. Moses, 380 So.2d 412, 415 (Fla.
1980) (clear intent of Florida's Administrative Procedure Act is to increase flexibility and informality in the administrative process by expanding public access to agency rationale and action, consistent with minimal administrative due process rights for those whose rights are affected by agency action); Rules 221-6.008 and 28-5.1055, F.A.C. (intent of the administrative process is to secure the just, speedy, and inexpensive determination of proceedings in which the substantial interests of a person are affected; rules shall be liberally construed to promote and facilitate access to the decision making process of government).
Accordingly, the hearing officer's finding No. 21 and conclusion of law denying standing are rejected.
Therefore, it is ORDERED:
The Recommended Order of the hearing officer is accepted and adopted by the Department in its entirety, except as modified by my rulings on the issue of standing as set forth above.
The Department shall issue permit No. 571717171 to Neal Colley in accordance with the Department's previous intent to issue in this matter.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 2600 Blairstone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 21 day of Tallahassee, Florida.
CAROL M. BROWNER
Secretary
Department of Environmental Regulation
2600 Blairstone Road
Tallahassee, Florida 32399-2400
(904) 488-4805
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Final Order has been furnished by U.S. Nail to Anne Cole, Division of Administrative Hearings; William F. Quattlebaum, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; to Linda L. Young, 3026 Ranchette Sq., Gulf Breeze, FL 32561; and to Steve Lewis, Esquire, P.O. Box 1876, Tallahassee, FL 32302, on this 24 day of June 1991.
State of Florida Department of Environmental Regulation
L H. THOMPSON
General Counsel
Department of Environmental Regulation
2600 Blairstone Road
Tallahassee, FL 32399-2400
(904) 488-9730
| Issue Date | Proceedings |
|---|---|
| May 10, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 21, 1991 | Agency Final Order | |
| May 10, 1991 | Recommended Order | Amended application to fill wetlands doesn't violate water quality stand, not contrary to public interest, adverse impact mitigated by wetlands conveyed. |
