STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GLEASON BROTHERS and COMPANY, )
)
Petitioner, )
)
vs. ) CASE NO. 96-0976F
) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on September 12, 1996, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Daniel L. McDermott, Esquire
Stromire, Bistline, et al. Post Office Box 8248 Cocoa, Florida 32924-8248
For Respondent: Thomas I. Mayton, Jr., Esquire
Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES
Petitioner, Gleason Brothers and Company (Gleason) seeks attorney's fees and costs from Respondent, Department of Environmental Protection (DEP or agency), pursuant to Section 57.111, Florida Statutes. The parties have stipulated that Gleason is a "small business party" under that section, and that the requested fees and costs are reasonable". The remaining issues, therefore, are:
Whether Gleason "prevailed" against DEP when the underlying permit case was settled prior to hearing;
Whether DEP was "substantially justified" when it issued its February 7, 1995 Notice
of Intent (NOI) to issue permits to Brevard County;
Whether special circumstances exist which would make a award unjust; and
Whether DEP was merely a "nominal party".
PRELIMINARY STATEMENT
Gleason's February 26, 1996 request for fees and costs arises from an earlier proceeding (Division of Administrative Hearings case numbers 95-0956/95- 0957) in which Gleason challenged DEP's intent to issue permits to Brevard County. The challenge was resolved prior to hearing and the cases were closed. Brevard County was dismissed as a party in the Section 57.111, Florida Statutes case in an order entered on March 26, 1996. After several continuances for good cause, the hearing proceeded as described above.
At the hearing Gleason presented the testimony of William Gleason, John Atkins and Robert Riggio, by deposition as stipulated. DEP presented the testimony of Ann Ertman and John Michael Bateman and the deposition testimony of Richard Bobletz and Richard Rabon. In addition to the stipulated exhibits attached to the depositions, DEP's exhibits marked "Respondent's exhibits 1-12" were received in evidence. (Exhibit 5 appears in the record as exhibit 1 to the Bobletz deposition).
The transcript of proceeding was filed on October 9, 1996, and the parties' proposed final orders and Gleason's written closing argument were filed on October 21, 1996. On November 21, 1996, DEP filed a document styled "Memorandum in Opposition to Petitioner's Motion for Payment of Expert Witness Fee". No such motion has been filed or docketed at the Division of Administrative Hearings, and it is not addressed in this order.
On December 17, 1996 Gleason, through counsel, filed its Motion for Award of Attorney's Fees and Costs for the instant case. Because of the outcome here, it is unnecessary to address whether those fees and costs are reasonable.
FINDINGS OF FACT
The Parties
Gleason Brothers and Company (Gleason), as stipulated, is a small business party within the meaning of Section 57.111, Florida Statutes. Gleason owns real property in Brevard County, Florida, specifically described as Sections 28 and 33, Township 27 South, Range 36 East.
The Department of Environmental Protection (DEP) is a state agency with jurisdiction to issue wetland resource permits and management and storage of surface water (MSSW) permits pursuant to Chapters 373 and 403, Florida Statutes.
The Permit Proceeding
On June 18, 1993, the Brevard County Solid Waste Management Department (Brevard County) applied to DEP for wet land resource and MSSW permits required for the county's landfill expansion and new construction.
Part of the landfill project consisted in a proposal for off-site mitigation which was required to offset wetland impacts by the landfill expansion. The off-site mitigation property is several miles from the landfill site and is described as west of Interstate 95, north of State Road 500, Sections 27 and 34 Township 27 South, Range 36 East. The off-site mitigation property lies adjacent to, and east of, the subject Gleason property. Both Gleason's and the off-site mitigation property are east of the St. John's River, with Gleason's property lying between the river and the off-site mitigation property.
In its 1993 application, Brevard County proposed to restore the historic natural grade of the mitigation property by removing certain dikes or berms and by filling some ditches, which berms and ditches were created many years ago by the former owners, the Platts, to improve the property for agricultural use. Some of those ditches and berms run along the property line between the Gleason and mitigation property.
In August and September 1993, Brevard County requested Gleason's permission to enter its land to install two piezometers as part of a scope of work to monitor impacts of the proposed off-site mitigation project. The county provided a copy of the scope of work and a map to Gleason's attorney, Robert Riggio.
On October 21, 1993, Riggio responded, by letter to Richard Rabon, Director, Brevard County Solid Waste Management Department, that Gleason would not allow permission to enter its land for hydrological monitoring.
Furthermore, Riggio stated, Gleason was concerned about the effects of potential flooding and an artificial increase in the area's water table which could "upset the value and continued usability of its land".
On November 15, 1993, Riggio wrote to DEP staff person, Ann Wonnacott (now, Ann Ertman) requesting notice of intended agency action on the county's landfill permits, and expressing Gleason's concern that the proposed project, including filling of ditches and removing berms, would artificially raise water levels, flood and devalue Gleason property.
On February 11, 1994, Riggio sent DEP a map of Gleason's property and a legal description.
On November 18, 1994, Riggio again wrote to Ann Wonnacott and objected to the landfill project on Gleason's behalf. Again, Riggio stated that the off- site mitigation plan included filling ditches which provided a flow of water in which Gleason asserted "legally recognizable rights".
In the meantime, in response to Gleason's concerns, in November 1993, DEP asked Brevard County to provide reasonable assurance that the off-site mitigation project would not flood surrounding property.
Brevard County's licensed professional engineers then undertook a groundwater modeling analysis and gathered information and performed testing for a stormwater modeling analysis. In reports provided in April 1994 the engineers concluded that the project would not increase flooding on Gleason's land.
DEP's expert in surface water management reviewed the engineering reports, data and reports on the area from the St. Johns River Water Management District, USGS quadrangle maps and aerial photographs, and he agreed that the project would not increase flooding on Gleason's land.
DEP staff review of the Brevard County applications revealed that the applications met relevant rule and statutory criteria, and on February 7, 1995 DEP issued its Notice of Intent (NOI) to issue a wetland resource permit for the onsite and off-site parts of the project, and an MSSW permit for the onsite part of the project only. The draft permit provided that no work could commence prior to issuance of the MSSW permit for the off-site mitigation work. DEP staff considered the off-site mitigation MSSW permit the "linchpin" of the entire project: without it, no work on any part of the project could commence.
Gleason, though its attorney, Robert Riggio, timely filed a Section 120.57(1), Florida Statutes petition for formal administrative hearing challenging DEP's intent to issue permits to Brevard County. The petition was forwarded to the Division of Administrative Hearings.
Gleason's petition raised several material issues: that the removal of the berms and filling of the ditches (called "drainage canals" by Gleason) would alter the "natural and historic hydroperiod" of Gleason's property, increasing water levels and enhancing the growth of weeds and other noxious vegetation; that it appeared that some of the ditches to be filled were actually within the boundaries of Gleason's property; and that DEP failed to adequately assess the effect of the proposed permitted action on the property of others.
Discovery commenced and Gleason continued to object to Brevard County's requests to enter Gleason's land for inspections and testing.
From Brevard County's perspective, the main function of filling in the ditches was to obtain additional mitigation credits for the area of the ditches. Relying on its engineers, the county did not consider that the ditches performed a significant hydrological function. At some point in time after Gleason's petition was filed, Brevard County agreed to not fill the ditches and submitted a modified application to DEP.
In July 1995, Brevard County submitted to DEP its application for the MSSW permit for the off-site mitigation project (the "linchpin" permit). The application included removing the berms but did not propose filling in the ditches. In August 1995, DEP issued notices of intent to grant the revised permit and the off-site mitigation MSSW permit.
Gleason, Brevard County and DEP signed a joint stipulation and motion to relinquish jurisdiction in the Division of Administrative Hearings case on December 21, 1995, The motion was granted, and Division of Administrative Hearing's files were closed. On January 3, 1996 DEP entered its final order and issued the permits, as revised.
"Prevailing Party"
From the time when it was first informed of the project, Gleason's primary concern was the county's proposal to fill the ditches. Whether this concern was misguided or whether it was legitimate, it was not until the petition was filed, and some time thereafter, that the county changed its application.
Gleason's February 22, 1995 petition specifically requested the alternative relief of an order modifying the subject permits by leaving the "drainage canals" intact.
When it obtained its relief by settlement prior to an evidentiary hearing, Gleason became a "prevailing party".
A Reasonable Basis in Law and Fact
Ann Wonnacott Ertman reviewed Brevard County's permit application, including the off-site mitigation project and she visited the mitigation site. By walking along the ditch between the site and the Gleason property she was
able to view both properties, although obviously not the entire two sections owned by Gleason.
The Gleason property viewed by Ms. Ertman was flat, and predominately dominated by wetland vegetation. She saw some cattle grazing, but no other uses or improvements to the property.
As understood by Ms. Ertman, the purpose of the off-site mitigation project was to reestablish the hydrology which existed prior to the Platts' construction of the berms and ditches. Those berms prevented some flood waters from the St. Johns River and Lake Washington from flowing onto the Platt property. Removal of the ditches and berms would therefore allow the flood waters collecting on Gleason's property to sheet flow into the mitigation site. Both the Platt property and Gleason property are considered to be within the mean annual and ten-year floodplain of the St. Johns River. As viewed by DEP and Brevard County, the off-site mitigation project would reduce, not increase water, on the Gleason property.
On the other hand, Gleason and its consultant conjectured that stormwater runoff flowing from the slightly higher elevations on the Platt property would flow unimpeded onto the lower Gleason property if the ditches were removed. This conjecture was based on an assumption that the ditches served a significant hydrological function by draining water off the property and transporting it away somewhere.
When Gleason, through its attorney, made its concerns known to DEP, Brevard County was required to respond and its consultants were required to perform further studies and tests.
Based on their studies and tests and computer modeling, Brevard County's consultants concluded that removing the ditches would not increase, but would rather slightly decrease, the amount of impervious surface area at the mitigation site and there would be a slight decrease in the volume of stormwater runoff flowing from that land to Gleason's land. Brevard County's consultants also determined that, notwithstanding the size of the ditches, the soil types in the area acted as a barrier to the water and the ditch could not exert a significant drawdown effect.
All of the information available to the DEP staff who reviewed the application competently supported the conclusion that filling the ditches would have no negative effect on Gleason's adjacent property. This information included observations from staff site visits, detailed information from Brevard County's consultants, U.S.G.S. quadrangle maps, aerial photographs, and uniquely relevant documents published by the St. Johns River Water Management District.
This information properly outweighed the unsupported conjectures expressed by Gleason and its consultant, and after finding the application otherwise met the statutory and regulatory criteria, DEP had a reasonable basis to issue its intent to grant the permit.
DEP was never apprised of Gleason's claim that some part of the ditches were on its property until Gleason's petition was filed in response to the notice of intent to issue the permit.
In its initial application Brevard County represented to DEP that it was the record owner of the land where the project was proposed. DEP does not
require a detailed land survey with the application, as that is an expense that would be unnecessary if the project were ultimately disapproved. Instead, the survey is a condition of the permit; that is, it must be accomplished prior to commencement of an approved project.
DEP does not authorize trespass on property not belonging to an applicant. Nor did Brevard County intentionally include Gleason-owned ditches in its project. There was no incentive for it to do so, as no mitigation credit would be allowed for such extraterritorial works.
Nominal Party or Special Circumstances
As the agency responsible for reviewing and acting on the applications at issue, DEP was more than a "nominal party" in this proceeding. However, in this instance, it was in the peculiar position of not being entirely in control of the outcome of the proceeding.
The applicant, and not DEP, determined the project for which the permit was sought. Brevard County, and not DEP, initially chose to fill ditches, and Brevard County chose to delete that work from its amended application and from the "linchpin" application, the off-site mitigation MSSW permit. In either case, with and without the ditch filling work, DEP determined the applications met relevant criteria and merited approval.
Reasonable Fees
As stipulated, the fees and costs of $13,193.50 incurred by the Gleasons in the underlying action are reasonable.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 57.111 and Section 120.57(1), Florida Statutes
Section 57.111(4)(a), Florida Statutes provides:
(4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.
The underlying proceeding was "initiated" by DEP because that state agency was required to inform Gleason of its clear point of entry when Gleason requested notice of intended action on the Brevard County landfill permit application. (Section 57.111(3)(b), Florida Statutes)
Gleason "prevailed" when it obtained settlement on the issue which it had consistently pursued throughout the pre-notice of intent process and afterwards: Brevard County agreed to forego filling the ditches.
Arguably, this was a Pyrrhic victory, since Brevard County's purpose for the berm removal and ditch filling was to permit flood waters from the St.
Johns River to sheet flow unobstructed across the mitigation site. Since Gleason is between the river and the mitigation site, one intuitively surmises that the project would reduce, not increase, standing water on the Gleason property.
Still, this issue would have necessarily been litigated if Brevard County had not voluntarily acceded to Gleason's concerns.
It is unnecessary to establish in this proceeding which party would have ultimately prevailed. Instead, it is the burden of the agency to establish merely that when it initiated the proceeding, it was "substantially justified", that is, it had a reasonable basis in law and fact for the proposed agency action. Section 57.111(3)(e), Florida Statutes; Dept. of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 717 (Fla. 1st DCA 1989)
As found above, the agency met its burden of proof. When faced with the concerns by Gleason, the agency insisted that Brevard County obtain further data to address those concerns. That data provided by the county's consultant engineers supported a finding that the ditches were not a significant element in the drainage systems and their filling would have no negative consequences for Gleason. Gleason and its consultant never provided any rebuttal to the county's studies, and DEP reasonably relied on the county's presentation and on its own staff's expertise.
Until the Gleason petition was filed, neither the county nor DEP were alerted to Gleason's claim of ownership of at least part of the ditches on its eastern boundary. Only a detailed survey disclosed the precise boundary line. The notice of intent to issue the landfill permit did not authorize trespass on Gleason's property for the off-site mitigation project. To the contrary, both DEP and the county were sensitive to, and honored, Gleason's adamant denial of access even for tests to determine hydrological effects of the proposed project.
DEP's alternative defense, the special circumstances, is also valid. This is not a situation in which DEP issued a notice of intent to deny a permit, the applicant sought relief and prevailed, either though settlement or a final order after evidentiary hearing. Nor is this a situation in which DEP, in granting a permit, sought to impose conditions challenged by a third party who ultimately prevailed in removing the conditions. In either such case DEP would be directly engaged in the controversy.
In this case, while more than a "nominal" party by virtue of its statutory responsibility, DEP was not affirmatively responsible for the offending element of the application and had no authority to either compel or to thwart its removal. As argued by DEP, to assess fees in such circumstances would frustrate encouragement of applicants to work out their differences with affected third parties.
Finally, Gleason has supplemented its request for fees related to the underlying permit proceeding with a motion for additional fees incurred in this instant proceeding. While such additional fees are recoverable, up to the statutory $15,000 cap, it is unnecessary to address the reasonableness of the request, since no fees are being awarded.
ORDER
Based on the foregoing, it is hereby, ORDERED:
Gleason Brothers and Company's petition for fees and costs pursuant to Section 57.111, FLORIDA STATUTES is DENIED.
DONE and ORDERED this 20th day of December, 1996, in Tallahassee, Leon County, Florida.
MARY CLARK
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 20th day of the December, 1996
COPIES FURNISHED:
Daniel L. McDermott, Esquire Stromire, Bistline, et al.
Post Office Box 8248 Cocoa, Florida 32924-8248
Thomas I. Mayton, Jr., Esquire Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
F. Perry Odom, Esquire
Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Proceedings |
|---|---|
| Dec. 20, 1996 | CASE CLOSED. Final Order sent out. Hearing held 09/12/96. |
| Dec. 18, 1996 | Department`s Memorandum In Opposition to Petitioner`s Motion for Award of Attorney`s Fees and Costs filed. |
| Dec. 18, 1996 | (Respondent) Notice of Unavailability filed. |
| Dec. 17, 1996 | (Petitioner) Motion for Award of Attorney`s Fees and Costs filed. |
| Nov. 21, 1996 | (Respondent) Memorandum in Opposition to Petitioner`s Motion for Payment of Expert Witness Fees filed. |
| Oct. 21, 1996 | (Respondent) Proposed Final Order filed. |
| Oct. 21, 1996 | Closing Argument of Gleason Brothers & Company; Proposed Final Order (for Judge signature) filed. |
| Oct. 09, 1996 | Notice of Filing; DOAH Court Reporter Final Hearing Transcript filed. |
| Sep. 12, 1996 | CASE STATUS: Hearing Held. |
| Sep. 11, 1996 | Petitioner`s Prehearing Stipulation (filed via facsimile). |
| Sep. 09, 1996 | Department's Supplement to Prehearing Stipulation filed. |
| Sep. 06, 1996 | Department's Prehearing Stipulation filed. |
| Aug. 20, 1996 | Amended Notice of Hearing sent out. (hearing set for 9/12/96; 9:00am; Tallahassee) |
| Aug. 01, 1996 | (Respondent) Motion to Continue Hearing filed. |
| Aug. 01, 1996 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Aug. 01, 1996 | (DEP) Motion to Continue Hearing (filed via facsimile). |
| Jul. 29, 1996 | (Respondent) Consented to Motion to Continue Hearing filed. |
| Jul. 26, 1996 | (Respondent) Consented to Motion to Continue Hearing (filed via facsimile). |
| Jul. 24, 1996 | (Petitioner) Notice of Service of Answers to Interrogatories filed. |
| Jul. 23, 1996 | (Respondent) Notice of Taking Deposition Duces Tecum; (Respondent) Amended Notice of Taking Deposition Duces Tecum filed. |
| Jul. 16, 1996 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Jul. 10, 1996 | Order sent out. (Motion for change of venue is denied; re: interrogatories) |
| Jul. 03, 1996 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Jun. 26, 1996 | Department of Environmental Protection`s Request for Entry Upon Land filed. |
| Jun. 25, 1996 | (Respondent) Notice of Telephonic Hearing On All Pleading Motions filed. |
| Jun. 24, 1996 | Department`s Response In Opposition to Motion to Limit Discovery And In Support of Department`s Motion to Compel Discovery filed. |
| Jun. 20, 1996 | Department`s Response In Opposition to Motion for Change of Venue filed. |
| Jun. 17, 1996 | Department`s Motion to Compel Discovery And Alternative Motion to Dismiss filed. |
| Jun. 17, 1996 | (DEP) Notice of Filing; Department of Environmental Protection`s First Set of Interrogatories to Petitioner, Gleason Brothers & Company filed. |
| Jun. 17, 1996 | (Petitioner) Response to Respondent`s Motion to Deem Matters Admitted; (Petitioner) Response to Request for Admissions; (Petitioner) Motion for Change of Venue; (Petitioner) Motion to Limit Discovery Or for Extension of Time filed. |
| Jun. 05, 1996 | Department`s Motion to Deem Admitted Matters Admitted filed. |
| Apr. 17, 1996 | Order and Amended Notice of Hearing sent out. (hearing set for 8/1/96; 9:00am; Tallahassee; Respondent`s alternative Motion to expedite discovery is denied as moot) |
| Apr. 16, 1996 | (DEP) Alternative Motion to Expedite Discovery; Consented to Motion for Continuance filed. |
| Apr. 12, 1996 | Notice of Filing (Petitioner) 2 DEP`s Intent to Issue, Final Order of the Division of Admin. Hearings, and Wetland Resource and Management and Storage of Surface Water Permit issued 01/17/96 filed. |
| Apr. 05, 1996 | Department of Environmental Protection`s First Request for Production of Documents to Petitioner, Gleason Brothers & Company; Notice and Certificate of Service of Interrogatories; Department of Protection`s First Request for Admissions to Petitioner, Glea |
| Mar. 26, 1996 | Order sent out. (re: ruling on pending Motions) |
| Mar. 26, 1996 | Prehearing Order sent out. |
| Mar. 26, 1996 | Notice of Hearing sent out. (hearing set for 5/20/96; 9:00am; Tallahassee) |
| Mar. 18, 1996 | Department of Environmental Protection`s Answer to Petition filed. |
| Mar. 11, 1996 | (From K. Harasz) Notice of Appearance w/cover letter filed. |
| Mar. 11, 1996 | (Brevard County) Motion to Dismiss filed. |
| Mar. 08, 1996 | Respondent Department of Environmental Protection`s Motion to Strike Petition for Small Business Party`s Attorney`s Fees and Costs filed. |
| Mar. 01, 1996 | Notification card sent out. |
| Feb. 26, 1996 | Petition For Small Business Party`s Attorney`s Fees And Costs, (Prior DOAH Case Nos. 95-0956 & 95-0957); Affidavit As To Attorneys Fees And Suit Costs filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 20, 1996 | DOAH Final Order | No fees awarded as agency was substantially justified in issuing notice of intent after thorough investigation of landowner's unsubstantiated claims. |
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