STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDNA C. WIELER, )

)

Petitioner, )

)

vs. ) Case No. 99-1179

)

HORSE'S HEAD, LTD., as permit ) applicant, and ST. JOHN'S WATER ) MANAGEMENT DISTRICT, as permit )

authority, )

)

Respondents. )

) TOWN OF INDIAN RIVER SHORES, )

)

Petitioner, )

)

vs. ) Case No. 99-1180

)

HORSE'S HEAD, LTD., as permit ) applicant, and ST. JOHN'S WATER ) MANAGEMENT DISTRICT, as permit )

authority, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, an evidentiary hearing on Respondents' Motions to Dismiss was conducted in this cause on May 14, 1999, at Tallahassee, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Timothy P. Atkinson, Esquire

Kenneth G. Oertel, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A.

301 South Bronough Street Fifth Floor

Post Office Box 1110 Tallahassee, Florida 32302-1110

For Respondent, Horse's Head, Ltd.:

William L. Hyde, Esquire Gunster, Yoakley, Valdes-Vauli

& Stewart, P.A.

215 South Monroe Street, Suite 830 Tallahassee, Florida 32301

For Respondent, St. Johns River Water Management District:

Mary Jane Angelo, Esquire Charles A. Lobdell, III, Esquire

St. Johns River Water Management District Post Office Box 1429

Palatka, Florida 32178-1429 STATEMENT OF THE ISSUES

Whether the Petitions for Formal Administrative Proceeding should be dismissed.

PRELIMINARY STATEMENT

This case began on March 5, 1999, when the Petitioners, Edna C. Wieler and the Town of Indian River Shores, filed Petitions for Formal Administrative Proceeding with the

Respondent, St. Johns River Water Management District (District). Such petitions sought to challenge the proposed agency action for permit application no. 4-061-0164A-ERP. The permit applicant, Horse's Head, LTD., is a Respondent in the instant action.

Essentially, the Petitioners challenge the District's approval of the applicant's request for an environmental resource permit (ERP) which would allow the development of approximately

2.66 acres of wetland for residential lots. In response to the petitions, the applicant and the District submitted motions to dismiss and alleged that they were untimely filed.

On April 12, 1999, the parties were afforded a telephone conference call within which to argue the law as to Respondents' motions. Because of unresolved issues of fact related to the requests, the matter was scheduled for an evidentiary hearing for May 14, 1999.

In conjunction with the evidentiary hearing the parties filed a Stipulation of Facts which reduced the factual matters to be reviewed. Pertinent facts from such stipulation are incorporated below.

At the hearing, the District presented testimony from Mark Gronceski, an environmental specialist employed by the District, and Jeffrey Elledge, the director for resource management for the District. Its exhibits numbered 1, and 8 through 21 were admitted into evidence. The applicant adopted the presentation of the District and the stipulation submitted by the parties.

Petitioners offered no evidence.

A transcript of the proceeding has not been filed. The parties have previously submitted written argument on the issues.

FINDINGS OF FACT

1. In July of 1997 a notice of an application for an environmental resource permit (ERP) was issued in conjunction with a project identified as 4-061-0164A-ERP. This project proposed to develop six single-family homesites and required the filling of 5.79 acres of wetlands.

2. The project was reviewed by the permitting authority, the District, and was recommended for approval.

3. On February 20, 1998, the District sent a written notice of Intended District Decision on permit application 4-061-0164A- ERP to interested persons. Such persons include those who have requested notice of all District ERP projects or those who have requested notice of District ERP projects by county which, in this instance, is Indian River County.

4. Additionally, on February 25, 1998, a notice of the District's intended agency action appeared in a newspaper published at Vero Beach, Indian River County, Florida. Such notice provided, in pertinent part:

   The District gives notice of its intent to issue a permit to the following applicant(s) on March 10, 1998:

   HORSE'S HEAD, LTD. ATTN: CHARLES M. BAYER, JR., 1 JOHN ISLAND DRIVE, VERO BEACH, FL

   32963, application #4-0610164A-ERP. The project is located in Indian River County, Section 13, Township 32 South, Range 39 East. The ERP application is for CONSTRUCTION OF FIVE RESIDENTIAL LOTS, WHICH WILL RESULT IN THE FILLING OF 5.79 ACRES OF MANGROVE SWAMP WITHIN THE EXISTING JOHN'S ISLAND DEVELOPMENT

   (LTVC PROPERTY). The receiving waterbody is the INDIAN RIVER LAGOON

   * * *

   The District will take action on each permit application listed above unless a petition for administrative proceeding (hearing) is filed pursuant to the provisions of sections

   120.569 and 120.57, F.S., and section 40C- 1.511, F.A.C. A person whose substantial interests are affected by any of the Districts [sic] proposed permitting decisions identified above may petition for an administrative hearing in accordance with sections 120.569 and 120.57, F.S. or all parties may reach a written agreement on mediation as an alternative remedy under section 120.573. Choosing mediation will not adversely affect the right to a hearing if mediation does not result in a settlement. The procedures for pursuing mediation are set forth in section 120.573, Florida Statutes, and rule 28-106.111 and 28-106.401-.405 Florida Administrative Code. Petitions must comply with the requirements of Florida Administrative Code Rule 40C-1.521 and be filed with (received by) the District Clerk, located at District Headquarters, Highway 100 West, Palatka, Florida 32177. Petitions for administrative hearing on the above application(s) must be filed within fourteen

   (14) days of publication of this notice or

   within nineteen (19) days of the District depositing notice of its intent in the mail for those persons to whom the District mails actual notice. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under sections 120.569 and 120.57, F.S., concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the Districts [sic] final action may be different from the position taken by it in this notice of intent. Persons whose substantial interests will be affected by any such final decision of the District to become a party to the proceeding, in accordance with the

   requirements set forth above. (Emphasis added)

   
   

5. On February 27, 1998, the District sent Horse's Head, Ltd., the permit applicant, a notice of intended agency action to issue the ERP to fill approximately 5.79 acres of wetlands on John's Island in the Town of Indian River Shores, Indian River County, Florida, to create five residential lots in an existing residential development commonly known as "John's Island."

6. Subsequent to the foregoing, a group of homeowners whose properties are adjacent to the applicant's site timely challenged the intended agency action.

7. This group, designated in this record as the Prosser petition, sought an administrative hearing and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. The Prosser petition was assigned to Administrative Law Judge Linda Rigot as DOAH Case No. 98-1784.

8. The Prosser challengers and Horse's Head eventually reached an amicable resolution. Horse's Head agreed to modify the subject application by reducing the filling of wetlands on the project site; by reducing the number of proposed residential lots; by undertaking additional mitigation activities on Hole-in- the-Wall Island, which is owned by Horse's Head; and by placing additional acreage under a conservation easement previously created for the subject permit application.

9. Pursuant to the stipulated settlement agreement referred to in the previous paragraph, Horse's Head agreed to request, and

   did request, the District to modify its ERP application as follows:

   1. Reduce the wetland impacts for Parcel A (see composite Exhibit "A" to Exhibit "4") from  2.45 acres to  1.03 acres.

   2. Reduce the wetland impacts to Parcel B (see Exhibit "B" to Exhibit "4") from  3.34 acres to  1.63 acres.

   3. Eliminate the northernmost of the proposed lots in Parcel B, thus reducing the total number of lots proposed for development in Parcel B from 4 to 3 lots.

   4. Create an additional 1.77 acres of wetlands by removing the Florida Power & Light ("FP&L") roadbed/power line easement on Hole-in-the-Wall Island and scraping down 0.6 acres of spoil banks within the conservation easement.

   5. Perform the rotational impoundment management "RIM" mitigation plan previously proposed for Hole-in-the-Wall Island, with the exception that clearing of nuisance exotic species on the perimeter dike has been deleted.

   6. Incorporate the majority of the northernmost of the four lots originally proposed in Parcel B into the revised and expanded area subject to a conservation easement for that parcel.

   7. Place approximately 78 acres under a conservation easement consistent with the terms and provisions of the conservation easement previously created for this application.

10. Pursuant to the stipulated settlement agreement, the Prosser petition was voluntarily dismissed on or about

    February 25, 1999, and Case No. 98-1784 was closed by Judge Rigot on or about March 1, 1999.

11. Prior to the dismissal of DOAH Case No. 98-1784, Petitioner, Edna Wieler, sent a letter to the District to contest the instant application. The Wieler letter, dated October 1, 1998, included a collection of signatures of those who reportedly opposed the applicant's proposed development.

12. Petitioner Wieler had not timely filed a petition to challenge the applicant's project in March of 1998. Moreover, Petitioner Wieler had not sought to intervene in the proceeding which had been timely filed (DOAH Case No. 98-1784).

13. Petitioner Wieler sent a second letter to protest the instant ERP on October 20, 1998.

14. Because of the Wieler letters in opposition to the project, the District added Petitioner Wieler's name to the data base of those persons claiming an interest in the subject permit application.

15. Mark Gronceski is an environmental specialist employed by the District responsible for reviewing ERP applications for projects located in Indian River County. As such he was instrumental in the agency's review of the instant project.

16. On December 15, 1998, Kenneth Oertel wrote to Mr. Gronceski with regard to the subject project. Mr. Oertel's letter provided:

    On behalf of the Town of Indian River Shores I would request that you send me a copy of

    the final staff report prepared for the above-referenced application and any notice that this matter will be placed on the Governing Board agenda. I would like to be furnished with these documents in sufficient

    time to evaluate whether a petition, pursuant to Chapter 120, F.S., will be filed.

    
    

17. On February 12, 1999, the District sent a written notice of Intended District Decision on Permit Application 4-061- 0164A-ERP to Interested Parties including Petitioners Wieler and Kenneth Oertel.

18. On February 18, 1999, a second notice of the District's intended action in this case was published in the Vero Beach Press-Journal. This notice mirrored the first notice published. It did not reference the modifications to the permit application which had been reached through the settlement of DOAH Case No. 98-1784.

19. On March 2, 1999, the District staff sent the applicant a notice of intended agency action to approve the Horse's Head ERP permit as modified pursuant to the above-referenced stipulated settlement agreement.

20. On March 5, 1999, the Town of Indian River Shores and Wieler filed Petitions for Formal Administrative Proceeding challenging the District's intent to approve the Horse's Head ERP permit as modified by the stipulated settlement agreement.

21. The District uses three forms of notice regarding ERP applications. When an ERP application is submitted, notice of receipt of such application is posted in each District service

    center. Further, a copy of the posted notice is provided by mail to persons or organizations who have requested notice of ERP applications. These "interested persons" receive notice based upon District-wide interests or for a requested county interest. The District is aware that some persons simply want notice of all ERP applications. Organizations in this category include the Florida Audubon Society and the Pelican Island Audubon Society as well as others.

22. The District considered Petitioner Wieler and

    
    

    Mr. Oertel "interested persons" to whom notice of the application should be sent.

23. When the District is prepared to agenda an ERP application for Board intended action, the District publishes a notice for the public of the proposed action and sends a second notice to the interested persons in its data base. This second type of notice provides a point of entry for interested persons to contest the proposed action.

24. A third type of notice used by the District is termed a "sunshine notice." This notice makes interested persons aware of items on a Board agenda. It is sent to all persons in the data base but does not offer a point of entry for agenda items. It merely lets interested persons know what topics will be on the Board agenda.

25. In this case, the District erroneously issued the second type of notice to the interested persons in its data base.

    Consequently, instead of the sunshine notice which should have been issued to Petitioners, they received the second type of notice. Petitioners claim a point of entry based upon the language of the second notice.

26. The District Board did not formally determine Petitioners are entitled to be "parties" to an administrative review of the subject project.

27. The issuance of the notice to Petitioners was no more than a clerical oversight.

28. None of the Prosser group who timely challenged the applicant's project have supported Petitioners' efforts in this matter.

29. The modified permit application as currently endorsed by the District and requested by Horse's Head does not constitute a substantial deviation from the original permit application noticed in February 1998. Petitioners have stipulated that the modified permit application is less impacting than the original design.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

31. Rule 28-106.111, Florida Administrative Code, provides:

    
    

    1. The notice of agency decision shall contain the information required by Section 120.569(1), F.S. The notice shall also advise whether mediation under Section 120.573,

       F.S., is available as an alternative remedy, and if available, that pursuit of mediation will not adversely affect the right to administrative proceedings in the event mediation does not result in a settlement.

    2. Unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.

    3. An agency may, for good cause shown, grant a request for an extension of time for filing an initial pleading. Requests for extension of time must be filed with the agency prior to the applicable deadline. Such requests for extensions of time shall contain a certificate that the moving party

       has consulted with all other parties, if any, concerning the extension and that the agency and any other parties agree to said extension. A timely request for extension of time shall toll the running of the time period for filing a petition until the request is acted upon.

    4. Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters.

    5. The agency may publish, and any person who has timely requested mediation may, at the person's own expense, cause the agency to publish, a notice of the existence of the mediation proceeding in the Florida Administrative Weekly or in a newspaper of general circulation in the affected area.

       The mediation notice can be included in the notice of intended agency action.

       1. The notice of the mediation proceeding shall include:

          1. A statement that the mediation could result in a settlement adopted by final agency action;

          2. A statement that the final action arising from mediation may be different from the intended action set forth in the notice which resulted in a timely request for mediation;

          3. A statement that any person whose substantial interests may be affected by the

             outcome of the mediation shall within 21 days of the notice of mediation proceeding file a request with the agency to participate in the mediation; and

          4. An explanation of the procedures for filing such a request.

       2. The notice shall also advise that in the absence of a timely request to participate in the mediation, any person whose substantial interests are or may be affected by the result of the mediation waives any right to participate in the mediation, and that waiver of participation in the mediation is also a waiver of that person's ability to challenge the mediated final agency action pursuant to Chapter 120, F.S.

32. Rule 40C-1.1007, Florida Administrative Code, provides, in part:

    (2)(a) "Receipt of written notice of a District decision" as set forth in section 28-106.111, F.A.C., means receipt of either written notice that the District intends to take or has taken final agency action, or publication of notice that the District intends to take or has taken final agency action. If the District's Governing Board

    takes action which substantially differs from a written notice of the District's decision describing intended action, persons who may be substantially affected shall have an additional 21 days, of for [sic] consolidated notice of intent under section 373.427, F.S., an additional 14 days, from the date of receipt of notice of a said action to request an administrative hearing, but this request for administrative hearing shall only address the substantial deviation.

    
    

33. Petitioners rely on the notice received on or about February 22, 1999, as their "express point of entry" to challenge the proposed agency action. They argue that the District has granted them "party" status as defined in Section 120.52(12),

    Florida Statutes. In essence, they claim the District afforded interested persons a second opportunity to contest the proposed project, and their petitions were timely filed based upon the second notice.

34. Petitioners maintain that the administrative process must be extended until this latest challenge can be resolved. They contend the merits of their challenge to the project must be addressed.

35. To the contrary, it is concluded that the Petitioners were given notice of the intended action which provided an alleged point of entry in error. The District clerical staff did not issue the sunshine notice as was appropriate, but issued the second notice which had previously been issued.

36. The District Board did not extend party status to Petitioners. A clerical error does not provide a point of entry.

37. In this case it is undisputed that the original notice published in February 1998 provided the public with sufficient notice of the proposed project. It afforded Petitioners with an adequate opportunity to participate in the administrative process. It notified Petitioners that the file regarding this application was available for public review, it advised Petitioners that their failure to file a petition would constitute a waiver of any right to participate in an administrative proceeding, and it specified that the failure to

    timely file would subject them to dismissal. That is exactly the remedy the District and the applicant now seek.

38. Finally, the District's intent to issue the ERP remained constant. The modifications to the permit resulted in less impact to the wetlands. As such, and as stipulated by Petitioners, there is no substantial deviation from the project originally noticed. As such, there are no circumstances to extend the point of entry as proposed by Petitioners. Accordingly, it is concluded Petitioners failed to timely file the challenges to the proposed project. See Rudloe v. Department of Environmental Regulation, 517 So. 2d 731 (Fla. 1st DCA 1987).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District issue a enter a final order dismissing the instant Petitions.

DONE AND ENTERED this 7th day of June, 1999, in Tallahassee, Leon County, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1999.

COPIES FURNISHED:

Mary Jane Angelo, Esquire Charles A. Lobdell, III, Esquire

St. Johns River Water Management District Post Office Box 1429

Palatka, Florida 32178-1429

Timothy P. Atkinson, Esquire Kenneth G. Oertel, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A.

301 South Bronough Street Fifth Floor

Post Office Box 1110 Tallahassee, Florida 32302-1110

William L. Hyde, Esquire

Gunster, Yoakley, Valdes-Vauli & Stewart, P.A.

215 South Monroe Street, Suite 830 Tallahassee, Florida 32301

Henry Dean, Executive Director

St. John's River Water Management District Post Office Box 1429

Palatka, Florida 32178-1492

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 99-001179

Orders for Case No: 99-001179