STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SUZANNE TERWILLIGER, AMY GUTMAN, JEFF LESERRA, JOSE GUTMAN, DONNA TENNANT, LARRY ROSENMAN, DAVID WEINSTEIN, PAM DANKO, TERESA BADILLO, MIKE STURM, FRANK LONGO, and BALLARD SMITH,
Petitioners,
vs.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT and FLORIDA POWER AND LIGHT COMPANY,
Respondents.
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) Case No. 01-1504
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RECOMMENDED ORDER
On August 16-17 and October 11-12, 2001, a preliminary evidentiary hearing on jurisdiction and standing was held in this case in Boca Raton, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioners: Jose Gutman, Qualified Representative
12643 Little Palm Lane Boca Raton, Florida 33428
For South Florida Water Management District:
Frank S. Bartolone, Esquire
South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33406 For Florida Power and Light Company:
John W. Little, Esquire Gabriel E. Nieto, Esquire Steel, Hector & Davis 1900 Phillips Pointe West 777 South Flagler Drive
West Palm Beach, Florida 33401 STATEMENT OF THE ISSUES
The issues in this preliminary hearing are whether the South Florida Water Management District (WMD) has jurisdiction and whether Petitioners have standing. In part, the issue of WMD's jurisdiction involves sub-issues as to Petitioners' timeliness in requesting an administrative hearing.
PRELIMINARY STATEMENT
WMD's Request for Assignment of Administrative Law Judge and Notice of Preservation of Record was filed with DOAH on April 19, 2001. It included a Petition for Formal Administrative Hearing (Petition) filed with WMD on April 6, 2001, and challenging both issuance of Right of Way Occupancy Standard Permit No. 11367 (the FPL Permit) to Florida Power and Light Company (FPL) and a related Order Granting Waiver of certain WMD rules on July 13, 2000; it also included a Motion to Dismiss filed by FPL on April 11, 2001.
The Petition was filed by three individuals--Suzanne Terwilliger, Amy Gutman, and Jeff Leserra--purportedly on behalf of unnamed residents of several residential areas in southwest Palm Beach County. The Petition named WMD as Respondent and challenged WMD's actions granting FPL's waiver requests and issuing FPL's Permit. FPL's Motion to Dismiss asserted that the Petition was untimely, that WMD had no jurisdiction over the matters raised in the Petition, and that Petitioners had no standing.
On April 26, 2001, the parties filed a Joint Response to Initial Order suggesting final hearing dates. FPL also filed an Addendum to Parties' Joint Response to Initial Order requesting a preliminary hearing on jurisdiction and standing issues raised in FPL's Motion to Dismiss. No party responded to FPL's Motion to Dismiss in the time allotted by Rule 28- 106.204(1). (Unless otherwise stated, all rule citations are to the current Florida Administrative Code.) However, on
May 3, 2001, Petitioners filed an Affidavit of Ballard Smith, an owner of property in one of the residential areas purportedly being represented by Petitioners. Smith swore that he lived in Bradenton and was not aware of WMD's actions until April 14, 2001; the Affidavit also swore that Smith "substantially agrees" with the Petition and "joins with the Petitioners in this Case No. 01-1504." It was not clear from
the Affidavit whether it was intended as a joinder in the Petition.
On May 4, 2001, the matter was scheduled for final hearing on June 26-27, 2001. In addition, arrangements were made for a telephone hearing on FPL's Motion to Dismiss on May 7, 2001. Finally, FPL filed a Memorandum of Law in Support of its Motion to Dismiss.
Petitioners indicated by telephone that one of them (Amy Gutman) was working on a response to FPL's memorandum of law and that her husband, Jose Gutman, would be speaking on behalf of Petitioners at the telephone hearing.
At the telephone hearing on May 7, 2001, FPL's status as a party respondent was confirmed based on its applications and Motion to Dismiss and subsequent participation in the proceeding. All parties presented oral argument. At one point, Petitioners' spokesman expressed Petitioners' willingness to amend their Petition to clarify the identity of Petitioners and specify the circumstances of their receipt of notice of WMD's actions. In addition, Petitioners requested additional time for a written response to FPL's memorandum of law. The request for additional time was granted, and Petitioners were given until May 18, 2001, to file their response. FPL also was given the same amount of time to
respond to the Affidavit of Ballard Smith (and letters filed in support of the Petition), if desired.
On May 16, 2001, FPL filed a Response to Affidavit of Ballard Smith. On May 18, 2001, Petitioners filed a response to FPL's memorandum of law, together with an Amended Petition for Formal Administrative Hearing (Amended Petition). The Amended Petition listed 13 individual Petitioners--those included in the above-caption, plus one other who later voluntarily dismissed and was dropped. The Amended Petition stated that four Petitioners--Terwilliger, Leserra, Donna Tennant, and Jose Gutman--would represent all Petitioners in subsequent proceedings.
On May 25, 2001, FPL filed a Request for Directions. FPL complained that the Amended Petition was filed without obtaining leave and while FPL's Motion to Dismiss still was pending. FPL requested a ruling on its Motion to Dismiss, as well as an opportunity to file a motion to dismiss the Amended Petition, if it was going to be allowed. FPL pointed out that a reasonable time for filing of such a motion and responses by Petitioners and WMD would not leave much time before final hearing for discovery and preparation. For that reason, FPL proposed that the dates scheduled for final hearing be used for an evidentiary hearing on jurisdiction and standing, with final hearing to be set at a later date, if necessary.
Petitioners filed a Response to FPL's Request for Directions on May 29, 2001. Petitioners disputed FPL's assertion that leave had not been granted to file the Amended Petition; Petitioners also opposed FPL's procedural suggestions.
On May 31, 2001, an Order Granting Motion to Dismiss with Leave to Amend, and Bifurcating Final Hearing was entered. As to FPL's Motion to Dismiss, it was ruled that the issue of whether the Petition was timely required resolution of factual disputes regarding receipt of actual notice, excusable neglect, and equitable tolling. (Some of these factual matters were alleged more clearly in the Amended Petition.)
It also was ruled that other issues raised in the Motion to Dismiss would not support dismissal with prejudice. (The Amended Petition appeared to attempt to address those defects.) As to the requirement in Rule 28-106.202 that Petitioners obtain leave to file the Amended Petition, since the Amended Petition merely anticipated the ruling on the Motion to Dismiss, leave was granted (if it had not already been granted.) In addition, Petitioners and their four representatives named in the Amended Petition were required to forthwith comply with the requirements of Rule 28-106.106 for authorization of non-attorney party representation. Finally, FPL's procedural suggestion was implemented by bifurcating final hearing--i.e., using the dates scheduled for final
hearing for an evidentiary hearing on jurisdiction and standing, with the rest of final hearing to be set at a later date, if necessary. Subsequently, FPL and Petitioners requested and received clarifications as to the issues for preliminary hearing, and Petitioners moved without objection for a continuance of the preliminary hearing to August 16-17, 2001. (Additional clarifications as to the issues for preliminary hearing would be required before the case went to hearing.)
On June 15, 2001, FPL filed a Motion to Dismiss the Amended Petition. By agreement of the parties, the time for responding to the Motion to Dismiss Amended Petition was extended to June 29, 2001. A timely response in opposition was filed by Petitioners; no response was filed by WMD. Upon consideration of the written arguments, an Order Denying Motion to Dismiss the Amended Petition was entered on July 18, 2001.
FPL's Motion to Dismiss the Amended Petition raised several grounds: Petitioners' lack of standing to revoke a permit; WMD's lack of jurisdiction because Petitioners were late filing their Petition and Amended Petition; Petitioners' lack of standing to raise issues; and WMD's lack of subject matter jurisdiction to consider issues. The Order Denying Motion to Dismiss ruled that: as to the first ground, while
Petitioners had no standing to initiate revocation, they did have standing to litigate their entitlement to a clear point of entry to participate in FPL's permit and waiver proceedings; as to the second ground, it was unclear when Petitioners received either constructive or actual notice (so as to "trigger" a point of entry) and also whether circumstances excused Petitioners' delay in filing a petition for administrative hearing subsequent to actual notice of WMD's "involvement" (whenever that occurred) under theories of excusable neglect and equitable tolling; as to the third ground, allegations of risk of loss of life and property from toppling of transmission poles in high (Category 3 hurricane force) wind appeared to allege injury of the type specifically protected under Rule 40E-6.221(2)(i)1; and, as to the fourth ground, the Public Service Commission's exclusive jurisdiction under Section 366.041(1) and (6), Florida Statutes, over prescription and enforcement of "safety standards for transmission and distribution facilities of all public electric utilities" did not remove WMD's jurisdiction under Rule 40E-6.221(2)(i) to determine whether to allow transmission pole lines to be placed in WMD Right-of-Way (ROW) in the face of Petitioners' allegation of risk of loss of life and property from toppling of transmission poles--the only allegation Petitioners had standing to litigate.2
On June 19, 2001, Petitioners' motion for a continuance was granted, and the preliminary hearing was rescheduled for August 16-17, 2001. Extensive discovery ensued (but not without several disputes, motions, and interlocutory orders related to discovery).
On June 22, 2001, Petitioners filed a Request to be Represented by Qualified Representative. Petitioners' request was for five of them--the Gutmans, Tennant, Lessara, and Terwilliger--to be authorized to represent themselves and the other Petitioners. An Order on Request to be Represented by Qualified Representative was entered on August 3, 2001. It ruled that, as a member of The Florida Bar, Jose Gutman already was authorized to represent other Petitioners under Rule 28-106.106(1); as for the other proposed representatives, it was ruled that a determination as to their qualifications was required under sections (2)-(4) of the rule, and Petitioners were required to either file affidavits or arrange an evidentiary hearing on the qualifications of the other proposed representatives if Petitioners continued to seek representation by them.
On July 27, 2001, Petitioners filed an Emergency Motion
for Order Compelling Discovery in part of matters FPL believed were objectionable as going to the merits and outside the scope of the preliminary hearing. The Order on Emergency
Motion to Compel entered on August 3, 2001, overruled FPL's objections and granted that part of Petitioners' motion "because, to prove standing, Agrico Chemical Co. v. Dept. of Environmental Reg., 406 So. 2d 478 (Fla. 2nd DCA 1981), requires proof of injury 'of a type or nature which the proceeding is designed to protect' . . . [and] may require evidence on the merits in a hearing on standing, and sometimes standing cannot be determined until after a decision on the merits."
A Joint Prehearing Stipulation was filed on August 13, 2001. In addition, a pre-hearing conference was conducted just prior to the beginning of the preliminary hearing on August 16, 2001.
At the preliminary hearing, Petitioners were represented by Jose Gutman; Petitioners presented no non-attorney qualifications and did not request a determination as to the qualifications of any non-attorney. Individual Petitioners were, however, permitted to speak in their own behalf during the course of the hearing; and Terwilliger and Tennant also took active roles in presentation of the case for Petitioners.
At the preliminary hearing on August 16-17, 2001, Petitioners called 13 witnesses and had numerous exhibits admitted in evidence but were unable to complete presentation of their case-in-chief, and the preliminary hearing was
continued for completion on October 11-12, 2001. When their case-in-chief was completed at 7:30 p.m. on October 11, 2001, Petitioners had called a total of 22 witnesses: Maggie Urucinitz, WMD Staff Engineering Associate; Gary Fishman, resident of Boca Winds; Richard E. Williams, WMD Ombudsman; Ballard Smith (by telephone); Teresa Badillo; Jeanne Hall, WMD Department Director, Vegetation and Land Management Department; Larry Rosenman; Pam Danko; Michael Sturm; Thomas
L. Fratz, WMD Division Director, Right of Way Division; Frank Longo; David Weinstein; Donna Tennant; John Adams, WMD Director, Field Operations (South); Daniel Hronec, P.E., FPL Principal Engineer; Andrew M. Wolf, Professional Supervisor; Joseph Walsh, WMD Compliance Enforcement Specialist Engineering Associate; Janice L. Sluth, WMD Associate Legal Research Assistant; Jeff Leserra; Amalia Gutman;
Suzanne Terwilliger; and Jose Gutman. In addition, of the 140 Petitioners' Exhibits identified or listed by Petitioners, the following were admitted in evidence: 5-7, 9, 11, 17-19, 20,
36, 37, 41, 42, 44, 47, 49, 50, 54-57, 61, 62, 65, 66, 70
(misidentified as 7 on page 472 of Transcript), 71, 72, 75,
77, 86, 92 (photograph only), 100, 106-108, 110-111, 116, 119
(as to photographs only, not chart), 120, 121 (provided by FPL post-hearing), 122 (provided by WMD post-hearing), 127, 128,
132, 133, 139 (as to depiction of length of pole only), and
140 (but not as proof of current OSHA standards).
On October 12, 2001, FPL called four witnesses in its case-in-chief: C. Jerry Wong, Ph.D., P.E., FPL Structural Engineer, expert in design of electrical transmission lines; Howard Searcy, Consulting Engineer, LBFH, Inc., expert in water resources and water management; Daniel Hronec (recalled); and Steven Walker, Esquire, former attorney for Petitioners. FPL also had FPL Exhibits 16, 18, 23, 28, 31,
34-37, 41-45, 50A-H, 51A, 51B, 51D, 52B, 59, and 61. Ruling
was reserved on Petitioners' objections to FPL Exhibit 62, consisting of excerpts from deposition transcripts of several of Petitioners.
WMD relied on the evidence presented in the cases-in- chief of Petitioners and FPL; WMD called no additional witnesses and offered no exhibits.
After presentation of evidence, FPL ordered a Transcript and requested 15 days from the filing of the Transcript to file proposed orders. Without objection, the request was granted. The Transcript (in 6 volumes) was filed on November 26, 2001, but
two agreed motions to extend the time for proposed orders was granted, and the time was extended to January 4, 2002.
Petitioners timely filed a Proposed Order; they also filed a Supplement to Proposed Order on January 7, 2002. WMD and FPL each timely filed a Proposed Recommended Order. FPL also filed a Motion for Leave to Exceed the Page Limit of Rule 28-106.215; no response to this motion was filed in the time allotted by Rule 28-106.204(1), and the motion is granted.
On January 11, 2002, Petitioners filed Objections to Misstatements and Mischaracterizations in Respondent's [FPL's] Proposed Recommended Order. On January 22, 2002, FPL filed a Motion to Strike Petitioners' Objections; no response to the Motion to Strike was filed in the time allotted by Rule 28- 106.204(1), and the Motion to Strike is granted.
On January 10, 2002, Petitioners filed a Memorandum of Law in Support of Their Objections to [FPL's] Offer of Documents into Evidence [FPL Exhibit 62]; and Motion to Strike portions of Gary Fishman's testimony. On January 23, 2002, FPL filed a Response in opposition; WMD did not file a response in the time allotted by Rule 28-106.204(1).
Based on the filings, most of Petitioners' objections are overruled. Cf. Florida Rules of Civil Procedure 1.310(e), 1984 Court Commentary. But Petitioners' objections that the deposition transcripts were not certified or complete are sustained. See Florida Rules of Civil Procedure 1.310, "Transcription, Certification and Filing" (presuming that
"filing of the deposition with the clerk is essential to its availability for use at the trial"). Petitioners' Motion to Strike Fishman's testimony is denied.
On February 8, 2002, Petitioners filed an Emergency Motion for Protection Order to Prevent Spoiliation [sic] of Evidence. FPL moved for an extension of time until
February 19, 2002, to respond, which is granted, and filed its Response on February 19, 2002. Petitioners replied on February 26, 2002. Based on the filings, and because it is moot in view of issuance of this Recommended Order, the motion is denied.
FINDINGS OF FACT
Issuance of FPL's Permit and Waivers
On May 2, 2000, WMD received an application from FPL for ROW Standard Permit to construct a parallel run of transmission lines (Parkland Transmission Line) in Sections 26, 27, 28, 29 and 35, Township 47, Range 41 East, located in Palm Beach and Broward Counties, inside the south ROW of the Hillsboro Canal. The Parkland Transmission Line was planned to carry 230 kilovolts (kV) of electricity to FPL's Parkland substation. FPL applied to place the 91-foot high poles for the transmission lines 14 feet from the top of the canal bank, on the south side of the canal, which is at least 80 feet wide.
On May 5, 2000, WMD received from FPL a Petition for Waiver of Rule 40E-6.011(4), (5) and (6), which governs the placement of permanent and semi-permanent encroachments within forty feet of the top of canal bank within Works and Lands of WMD. Although not identified in the style of the Petition for Waiver, FPL also sought a "waiver from the Basis of Review Rule (L)(4)(Transmission Lines, p. 113 of Sept. 1999, Volume V, Criteria Manual for Use of Works of the District.)"3 The Petition for Waiver sought permanent waivers.
The District published notice of receipt of the petition for waiver from FPL in the Florida Administrative Weekly (FAW), Volume 26, Number 21, dated May 26, 2000. However, instead of giving notice that FPL was requesting permanent waivers, the notice stated that FPL only sought "temporary relief from the Rule 40E-6.011(4), (5) and (6)
. . . and the Basis of Review." In addition, while the notice described Rule 40E-6.011(4), (5) and (6) as requiring a "minimum 40 foot setback requirement from the top of bank," it did not describe the criteria in the Basis of Review, which states in pertinent part:
The use of the District's Works or Lands for the construction, operation, and maintenance of transmission lines has the potential to interfere with the District's operation, maintenance and allied purposes. Applicants should acquire their own right of way and should not look to the District to utilize District-controlled Works or
Lands, which were acquired for water management and other allied purposes.
This policy should not be construed as a prohibition against the construction of distribution or transmission line crossings, nor is it a prohibition against use of short segments of District's right of way for the construction of local distribution facilities when such facilities will not interfere with operations and maintenance and are otherwise acceptable to the District.
Finally, WMD's notice did not describe FPL's project. As a result, it could not have been ascertained from WMD's notice what FPL's Petition for Waiver was for (installation of a 230 kV overhead transmission line) or what the Basis of Review provided on transmission lines. Instead, as worded, the notice implied that both Rule 40E-6.011(4)-(6) and the Basis of Review required a "minimum 40 foot setback . . . from the top of bank."
The District published notice of the July 13, 2000, Governing Board meeting (in Fort Myers, Florida) in the FAW, Volume 26, Number 25, dated June 23, 2000. This notice simply stated that the agenda of the meeting was available upon written request or via WMD's website. The meeting agenda fully described both FPL's Permit application and Petition for Waiver. It also noted WMD staff's recommendation that the both be approved.
WMD's Governing Board granted both FPL's Permit application and Petition for Waiver at its meeting on July 13, 2000. An Order Granting Waiver was reduced to writing and filed on July 26, 2000, effectively nunc pro tunc July 13, 2000. The Order Granting Waiver also granted FPL's Permit application and included a Notice of Rights, which advised affected persons how to seek an administrative hearing by filing "a petition for hearing pursuant to Sections 120.569 and 120.57(1)."
WMD published in the FAW, Volume 26, Number 36, dated September 8, 2000, notice of the disposition of FPL's Petition for Waiver under Section 120.542, Florida Statutes. Unlike the notice of filing the Petition for Waiver, the notice of disposition described the project as "installation of 3.7 miles of overheads parallel transmission pole line inside the south right of way of the Hillsboro Canal, Palm Beach and Broward Counties." The notice of disposition did not contain a Notice of Rights or other "point of entry" to request an administrative hearing.
Except as set out in Findings 3-6, supra, neither WMD nor FPL gave Petitioners any other kind of notice of FPL's Permit application or Petition for Waiver proceedings. WMD did not determine that FPL's project was of heightened public concern, or that there was the likelihood of a request for an
administrative hearing, so as to require additional notice in accordance with WMD rules.
First Notice to Petitioners (Except Leserra and Smith)
Petitioners all own residences in the vicinity of FPL's transmission line project. While Jeff Leserra lives south of the Hillsboro Canal and across Loxahatchee Road in Broward County, the other Petitioners all live north of the Hillsboro Canal in Boca Winds, a group of related residential developments in Palm Beach County, west of Boca Raton.
Some of the Boca Winds residents--Terwilliger, Tennant, Pam Danko, Larry Rosenman, Teresa Badillo, and Mike Sturm--live in homes on property adjacent to WMD's north ROW along the Hillsboro Canal. These homes are approximately between 230 and 250 from the nearest Parkland Transmission Line pole. Moreover, in late 1999, each of these Petitioners applied to WMD for a Noticed General Permit (NGP) to extend their backyard fence enclosures between 20 and 25 feet into WMD's north ROW along the Hillsboro Canal--closer to the poles. Their applications were processed primarily by Badillo and another homeowner, Gary Fishman, who is not one of Petitioners. The applications were granted and NGPs were issued to them on May 8, 2000, just after FPL's Permit application and Petition for Waiver were filed.
The homes of the other Petitioners--Jose and Amalia Gutman, Frank Longo, David Weinstein, and Ballard
Smith--are not adjacent to the Hillsboro Canal. The homes of the Gutmans and Smith are approximately 370 and 390 feet from the nearest pole; Weinstein's home is approximately twice as far away; Longo's home is approximately 1,100 feet away from the nearest pole. All Petitioners use their homes as their permanent residence except for Ballard Smith, whose principal residence is in Bradenton, Florida.
Prior to November 2000, Petitioners had no notice or knowledge of FPL's Permit application or Petition for Waiver proceedings.
FPL began installing 90-foot high poles for the Parkland Transmission Line along the Hillsboro Canal ROW on or about November 1, 2000. By mid-November 2000, all Petitioners except Leserra and Smith has seen the poles, made inquiry of various kinds, and learned of FPL's plans to construct the Parkland Transmission Line. Leserra and Smith did not see any poles and had no knowledge about the Parkland Transmission Line until later. See Findings 49-53 and 58, infra.
Initial Reaction to Transmission Poles
The Boca Winds homeowners who became aware of the installation of the poles just south of the Hillsboro Canal reacted in different ways. Some instantly suspected both the
ultimate use of the poles for electrical transmission and that the poles were on WMD ROW. Others suspected the former but not the latter. Several made telephone inquiries of different kinds-some to FPL, some to their homeowner association.
Quickly, word spread, and these homeowners, including all Petitioners except Smith and Leserra, began organizing to oppose FPL's Permit. Meetings were held, and many members of the loosely-organized opposition were involved initially, but the group soon turned to and relied heavily on a handful of its members--primarily the Gutmans, Badillo, and Gary Fishman-
-to gather information and contact FPL and WMD on behalf of the group.
While none of the group was particularly knowledgeable about the legal technicalities of WMD procedures, Jose Gutman was a Florida-licensed lawyer (albeit practicing in patent law), and Fishman had handled the applications of Terwilliger, Tennant, Pam Danko, Rosenman, Badillo, Sturm, and others for WMD NGPs to extend their backyard fence enclosures into WMD's north ROW along the Hillsboro Canal. Although most members of the group did not view Jose Gutman technically as their attorney during this time, Gutman asserted attorney-client privilege as to communications between himself and members of the group
beginning in November 2000, and Petitioners' objections to disclosure of these communications were sustained.
A meeting between Jose Gutman, Fishman, Badillo, and other Boca Winds residents and various FPL representatives was held on November 8, 2000. During this meeting, the residents essentially complained that they had no notice and asked FPL to relocate the transmission line. FPL responded that the required notice was given and said it would respond to the request to relocate the lines.
The next day the homeowners put their requests to FPL in writing. They asked for proposals for relocating the transmission line, for the projected cost of putting the line underground for the 1.3 miles in the vicinity of their homes, for EMF testing of their homes, and for a statement of safety.
The Gutmans then began the process of drafting a petition for circulation to residents for signature. Entitled "Petition to Halt Construction of FPL High Power Transmission Lines on the Land Adjacent to Our Homes," the petition stated that the homeowners "hereby petition our government and [FPL] to halt construction . . . [and] relocate the lines away from our communities." The petition stated that the homeowners had no notice until November 1, 2000, and did not consent to the project. It complained about "a significant loss in property value along with the additional serious concern of health
risks [namely, leukemia and cancer] to our children that will be playing within the electric and magnetic fields (EMFs) emitted." The petition requested "that our government representatives and FPL engineers promptly halt construction
. . . and provide in writing proposed alternative plans for moving these transmission lines away from our communities." The petition was dated November 18, 2000, but signatures were collected after that date.
Meanwhile, Jose Gutman and Fishman arranged to meet with WMD representatives at WMD's main offices in West Palm Beach on November 28, 2000. Since they had a follow-up meeting with FPL scheduled for the following day, they were surprised on their arrival to find Daniel Hronec, FPL Principal Engineer on the Parkland Transmission Line project, in attendance, apparently having been notified and invited by WMD. Gutman and Fishman essentially reiterated their complaint of lack of notice and their request to have the transmission line relocated. Discussion ensued on the permitting process used by FPL and WMD. WMD's Laura Lythgoe explained that WMD rules provide for different review criteria and notice requirements depending on the nature of the request.4 She stated that no notice to affected parties is required for ROW use permits, such as the one FPL got for the Parkland Transmission Line. She went on to explain that the
procedure for requesting a variance is set out in Section 120.542, Florida Statutes, which only requires notice in the FAW. Fishman complained that the FAW notice was not specific enough. Thomas L. Fratz, WMD ROW Division Director, responded that the notice was legally sufficient. Lythgoe also pointed out that the agenda item gave specifics and was available on WMD's internet web site.
In testimony at the preliminary hearing, Fishman recalled a statement being made during the course of discussion that the homeowners had 21 days to petition for a hearing and that the time had expired. Gutman did not recall such a statement being made specifically, but he conceded that the thrust of the discussion was that the proper notice was given and that the homeowners were too late.
During the discussion of WMD procedures, Gutman asked for copies of certain documentation being discussed. Gutman also expressed the homeowners' need for legal advice on the subject and asked for a referral to an attorney knowledgeable in the area. WMD agreed to respond to these requests in writing.
Towards the end of the meeting on November 28, 2000, Gutman asked how the homeowners could proceed with their grievance. Fratz responded that the homeowners' issue was with FPL, not WMD. Gutman replied that the homeowners could
only negotiate with FPL (which they already were doing) but could petition WMD, as their government, to take action to rectify the situation. Gutman indicated that he had a petition with approximately 150 signatures for that purpose. It is not clear whether the petition and signatures were physically presented to WMD at that time, but it is clear that WMD did not direct Gutman to WMD's Clerk's office, which was just down the hall from where they were meeting, to file the petition.
The next day, FPL hosted a meeting with the homeowners to respond to their requests made at the meeting on November 8, 2000, and in their letter dated November 9, 2000. FPL confirmed its response in a letter dated November 30, 2000. FPL told the homeowners that there were options for relocating the transmission line but that implementing the options would cost the homeowners between $900,000 and $1.5 million, depending on the option chosen and that a $20,000 engineering deposit would be required up-front. The option of replacing the planned overhead transmission lines with underground lines would be much more expensive--approximately
$15 million--and "unquestionably prohibitive." The homeowners considered FPL's proposals to be financially infeasible and unacceptable.
By letter dated December 1, 2000, WMD provided Jose Gutman and Fishman documentation in response to their request during the meeting on November 28, 2000. Included
were copies of the agenda for the Governing Board's meeting on July 13, 2000, and Section 120.542, Florida Statutes (2000).
The letter stated that Section 120.542 applied, not Section
403.201 (applicable to the Department of Environmental Protection), which Gutman and Fishman apparently cited at the meeting. The letter also stated that there was no requirement for publishing or other notification to affected parties for issuance of a ROW permit.
Attorney Walker and the Board Meeting December 14,
2000
After the meetings and letters, the homeowners
decided that it would be necessary to appeal directly to WMD Governing Board. They also decided that they needed competent legal representation to assist them. Amy Gutman contacted Governing Board member Nicholas J. Gutierrez, Jr., who advised the homeowners to bring their grievances to the next Board meeting on December 14, 2000. Gutierrez put Amy Gutman in contact with the Board's meeting coordinator, Sandra Gomez, who scheduled the homeowners to participate in the public comment portion of the upcoming Board meeting on December 14, 2000.
Meanwhile, Jose Gutman took steps on behalf of the homeowners to retain counsel. After considering several candidates, Gutman eventually settled on Stephen A. Walker and his law firm of Lewis, Longman & Walker, P.A. to represent the group of homeowners (including all Petitioners except Leserra and Smith). Walker served as General Counsel of WMD from 1985 to 1991, and was a frequent practitioner before the SFWMD Governing Board. He also has appeared in cases before the Division of Administrative Hearings.
It is not clear from the evidence what documentation Walker obtained from WMD's permit files before appearing on behalf of the homeowners at the Governing Board's meeting on December 14, 2001. However, it is reasonable to infer that, as former WMD General Counsel and an attorney specializing in WMD permitting with extensive experience in that field, Walker was aware of the generally applicable 21-day time limitation for seeking an administrative hearing regarding proposed agency action. Walker also was aware of the difference between petitioning to intervene in a proceeding for the issuance of a permit and asking an administrative agency to initiate proceedings to revoke a permit that has already been issued. Whether Walker communicated this knowledge is not clear from the evidence because Petitioners objected to questions seeking disclosure of attorney-client
communications, and the objections were sustained. However, it can be inferred from all of the evidence that such communications probably took place.
Walker and the homeowners not only appeared for the public comment portion of the Governing Board's agenda for December 14, 2001, they also conducted a protest demonstration that caused a disturbance in the hallway outside the meeting room during an earlier part of the agenda. Attempting to ascertaining the reason for the disturbance, the Chairman of the Governing Board, Michael Collins, asked WMD Ombudsman, Richard E. Williams, to attempt to gain some understanding of the reason for the demonstration and to suggest possible solutions. When it was made known that Fratz and other WMD staff already had met with the homeowners and FPL, Collins asked that Fratz be included. Williams then met with the homeowners, FPL, and some WMD staff in the nearby WMD cafeteria. When the situation was explained to Williams, he suggested that all parties agree to give him time to gather additional facts and try to mediate an "acceptable agreement" to report back to the Governing Board at its meeting in January 2001. In the meantime, it was agreed that FPL would postpone construction in the vicinity of the homeowners and that the homeowners would postpone pursuit of their grievance. This was acceptable and agreed by all involved.
When FPL and the homeowners returned to the Governing Board meeting for the public comment portion, Walker appeared on behalf of the homeowners. Walker summarized the history of FPL's Permit and waivers. He asked the WMD Governing Board to do three things: (1) have staff investigate the appropriateness of the issuance of the Permit in the first instance; (2) based upon that investigation, partially revoke FPL's Permit; and (3) have Williams continue to work with the homeowners and FPL in an effort to find a solution.
The Gutmans, Tennant, Terwilliger, and Badillo also addressed the Governing Board to ask that FPL's Permit be revoked. Jose Gutman advised the Governing Board that the homeowners had a petition (by then with 256 signatures) with a cover letter that would provide the Board a summary of the issues. He offered to provide the Board with copies and was directed to hand them to Darrell Bell, a member of the staff of WMD's Clerk's office, who would make sure all Board members got a copy. The other speakers expressed their concerns about EMF, aesthetics, and property values.
Collins then asked the WMD's General Counsel,
John Fumero, to identify the Board's options. Fumero advised that the Board could modify, revoke or suspend FPL's Permit but that, before taking such action, the Board would want to
know the facts and understand the consequences of each option. Without taking a formal vote, the Board asked staff to investigate the facts and report back at the next meeting.
Walker advised the Board, and Dan Hronec on behalf of FPL concurred, that FPL had temporarily stopped construction near where his clients lived while it continued work on other portions of the transmission line.
Smith's First, Incomplete Knowledge
Smith saw a tall concrete structure off to the left of the main entrance to Little Palm Lane when he visited his home for approximately four days in late December 2000. He denied seeing any other poles (although all of the poles behind the Boca Winds homes were installed by then). Smith explained that he spent most of his time during this visit in the house or in the backyard where the poles would be less visible. Although Smith admitted that he was outside in front of his house, where the poles would have been more visible, at times during his visit in December and that he can now see the poles and lines from inside his house through any front window on either the first or second story, Smith's testimony as to what he saw in December 2000 is accepted and credited. Likewise, Smith's testimony that he did not realize the purpose of the pole he saw or its location on WMD ROW is accepted and credited.
Walker's Review of WMD Documents
As part of his representation of the homeowners, Walker or one of his subordinates obtained copies of at least parts of WMD's official agency file on FPL's Permit. Walker's files contained several partial copies of FPL's Permit; there also was a Notice of Rights form (the kind attached to the Order Granting Waiver). Walker's file also contained other materials that are found in the WMD's file on FPL's Permit, such as the standard form letter that accompanies each permit transmittal.
Fishman understood that Jose Gutman had asked Walker or one of his subordinates to go to WMD and undertake an investigation regarding the issuance of FPL's Permit. Gutman did not confirm Fishman's understanding, and Walker denied that he or anyone from his staff went to WMD's main office in West Palm Beach to investigate the issuance of FPL's Permit and obtain the documentation in his file. It is possible that Walker was given the documents by one or more of the homeowners.
Walker also testified at hearing that he could not recall when he obtained the documentation that was in his file. However, based on the record evidence, it is reasonable to infer that this occurred prior to January 8, 2001, as Walker sent a letter to WMD on that date which described the
Permit in detail and to which he attached copies of FPL's Permit, FPL's permit and waiver applications, and several items of WMD correspondence from the permit file.
Failure of Mediation; Board's Meeting February 14,
2001
After the Governing Board's December 2000 meeting,
Ombudsman Williams undertook to schedule separate meetings with the homeowners and with FPL, to be followed by a joint meeting with all involved.
It soon became apparent that it would not be possible to conduct all the meetings and be ready to report back to the Governing Board at its January 2001 meeting. In a letter from FPL to Fratz dated January 5, 2001, FPL confirmed that FPL would continue to postpone construction in the vicinity of the homeowners until after the February 2001 meeting of the Governing Board and that, "in return for this concession, the concerned residents have agreed to hold any further action, including comment to the Board, until the February Board meeting."
Williams met separately with the homeowners and with FPL, as planned. When Williams contacted Amy Gutman to schedule a joint meeting, she asked whether anything new was being proposed. When Williams said, no, Gutman told him she did not think another meeting would be productive and declined
on behalf of the homeowners to participate in one. Apparently, FPL representatives met with WMD staff, and they discussed landscaping to help mitigate the aesthetic concerns of the homeowners. Having declined to participate, the homeowners were not aware of the landscaping proposals (essentially, planting cabbage palms in the ROW.)
FPL's Permit and waivers made up an agenda item at the WMD Governing Board's meeting on February 14, 2001. Fratz introduced the item with a presentation. The Board then received public comment from Walker on behalf of the homeowners and from a number of homeowners.
Walker, on behalf of all Petitioners except Smith and Leserra, identified three concerns of the homeowners, one of which was the lack of notice. Specifically, Walker stated that the Administrative Procedure Act was involved, that the model rules provide for a point of entry for people wanting to object to a permit, and that his clients did not get the required point of entry. At the conclusion of his presentation, Walker asked the Board to revoke FPL's Permit. When asked by one of the Board members whether there were other options available, Walker stated that he was not aware of an available alternative other than revocation.
Petitioners Tennant, Frank Longo, Terwilliger, Jose Gutman, Larry Rosenman, and Badillo also addressed the
Board and provided reasons why they believed FPL's Permit should be revoked.
FPL then made a presentation, after which the Board discussed the issue and entertained several motions. During the Board's discussion, staff was asked about possible interference with WMD's operation and maintenance of the Hillsborough Canal as a result of the transmission line and about the safety of WMD's workers. These questions were addressed by Fratz, by WMD's Executive Deputy Director, Joe Taylor, and by WMD's Director of Field Operations (South), John Adams. They advised the Board that WMD could adequately operate and maintain the canal with the transmission lines in place and that the safety of WMD's workers would not be compromised. Fratz noted that WMD frequently received requests for waiver of the 40-foot setback from the top of canal banks, and Adams pointed out that WMD does not operate any of its equipment, including cranes with booms, along WMD ROW in winds above 35 miles per hour.
After these questions were answered, Board Chair
Michael Collins again asked General Counsel, John Fumero, to list the Board's options. Fumero outlined three possible courses of action: (1) to take action relative to the Permit such as revocation, modification or suspension; (2) to take no action with respect to the Permit; or (3) to direct staff to
publish notice of the Permit to create a point of entry for an administrative challenge. After some questions from the Board were answered, Board member Dr. Patrick J. Gleason moved to give the homeowners a point of entry, and the motion was seconded. After further discussion, the motion was amended in two respects: (1) the Board would delegate to the executive director the authority to initiate a proceeding to suspend FPL's Permit while the administrative challenge was ongoing; and (2) the Board's action would be based upon information received during the meeting indicating that certain WMD criteria may not be met.
The motion, as amended, was defeated by a 7 to 1 vote. A subsequent motion was made for FPL to install and maintain certain landscaping over a portion of the ROW to provide a visual buffer between the homes and the transmission line. That motion passed, 7 to 1.
Petitioners (except Smith and Leserra, who still had no knowledge of events taking place and did not participate in the meeting on February 14, 2001) understood that the Governing Board had refused to initiate revocation proceedings at the meeting. Although some Petitioners expressed willingness to hear more about the landscaping proposal, which was new to them, Petitioners also already knew that the
landscaping alternative proposed would not be acceptable to them and that they still wanted FPL's Permit revoked.
After the Board's vote, several Petitioners, including Jose Gutman, Badillo, and Rosenman (as well as Fishman) talked to Walker about other avenues to pursue in their continued opposition to FPL's Permit. This discussion included advice on seeking a formal administrative hearing.
It is highly likely that, even if Walker did not have all his documentation from WMD's file on FPL's Permit by January 8, 2001, he had them by the Governing Board's meeting on February 14, 2001. During the meeting, Walker introduced exhibits that he indicated were retrieved from WMD's file on FPL's permit. These included a copy of the Notice of Rights attached to the Order Granting Waiver.
Walker advised the homeowners for the last time after the meeting on February 14, 2001, before his clients left the meeting. His representation was terminated shortly thereafter.
Petitioners have invoked attorney-client privilege to preclude discovery of the precise substance of the discussion with Walker after the meeting on February 14, 2001-
-in particular whether the various jurisdictional time limitations were discussed. However, it is reasonable to infer that Walker shared this information with the homeowners,
including the information contained in the Notice of Rights attached to the Order Granting Waiver, before terminating his representation.
Leserra's Knowledge and the Petition
Petitioner Leserra first learned of the installation of high-voltage transmission line poles in the vicinity of his home in approximately February 2001. The closest pole was just 69 feet away from his home, across Loxahatchee Road. Leserra contacted State Representative Stacy Ritter to complain, and his office contacted WMD and obtained information concerning the project in mid to late-February 2001. A letter sent by Representative Ritter's office to Leserra on February 28, 2001, and received by Leserra shortly after March 2, 2001, stated that the line in question was located on property determined to be owned by WMD. Leserra testified that, even after receiving this information, he did not know how WMD's ownership was determined and still did not know for certain of WMD's involvement at the time.
In early March 2001, a friend informed Leserra that homeowners in Boca Winds in Palm Beach County were having a similar problem with installation of high-voltage transmission lines near their homes and gave him Teresa Badillo's name and telephone number. Leserra telephoned her and was told that there was a meeting about it at WMD in February 2001. Badillo
gave Leserra Jose Gutman's name and number for additional information.
Badillo testified that she also told Leserra about FPL's Permit to use WMD's ROW. Leserra does not recall her saying that. Even if she did, Leserra did not even know where Boca Winds was at the time and did not know that Boca Winds was being affected by the same transmission line project that was affecting him.
On March 12, 2001, Leserra wrote to FPL and WMD and threatened that he would hold WMD responsible for any adverse impact from the FPL facilities on the Hillsborough Canal. At the time he sent the letter, he had not yet been able to speak to Jose Gutman. At some point during the next four days, Leserra was able to contact Jose Gutman by telephone. Gutman explained the Boca Winds situation in detail, including the homeowners' intention to request an administrative hearing, and Leserra agreed to be a co-petitioner.
Since Petitioners objected to disclosure of communication with Gutman on grounds of attorney-client privilege, it is not clear that Gutman imparted to Leserra information as to the Notice of Rights attached to the Order Granting Waiver to FPL or the deadline for petitioning for an administrative hearing. But it can be inferred that the former was communicated and that the latter was discussed.
On March 16, 2001, Amy Gutman contacted Ombudsman Williams to tell him that the homeowners no longer were represented by Attorney Walker but, along with Leserra now, wanted to petition for an administrative hearing, wanted to know their rights, and wanted assistance in understanding the process to avail themselves of their rights. On March 20, 2001, Williams relayed this information to Deputy Executive Director Taylor and General Counsel Fumero for handling.
The office of WMD General Counsel responded to Williams' request by sending a letter dated March 22, 2001, to Amy Gutman, on behalf of the homeowners, enclosing a copy of the Order Granting Waiver, with Notice of Rights, which "explains the various remedies that are available to anyone substantially affected by a decision of the District."
After receipt of the letter with copy of the Order Granting Waiver with Notice of Rights, Amy Gutman and some of the homeowners (including all Petitioners except Ballard Smith) decided to file a petition for administrative hearing. Suzanne Terwilliger telephoned WMD office of General Counsel to get sample petitions, which were faxed to her on April 3, 2001. Terwilliger drafted a Petition for Formal Administrative Hearing (Petition) and telephoned WMD to see if it could be filed by fax. She was told Sandra Gomez would call her back. Terwilliger called again on April 6, 2001,
angry that she had gotten no response from Gomez and that FPL was energizing the transmission line which had been completely installed since February 14, 2001. Told that it could be filed by fax, the Petition was filed in that manner on
April 6, 2001.
The Petition was filed by Terwilliger, Amy Gutman, and Leserra purportedly on behalf of unnamed residents of several residential areas in southwest Palm Beach County. On April 11, 2001, FPL filed a Motion to Dismiss asserting that the Petition was untimely, that WMD had no jurisdiction over the matters raised in the Petition, and that Petitioners had no standing.
Smith's Knowledge and Joinder; Amended Petition
There was no evidence that Ballard Smith knew anything at all about what transpired between the homeowners, FPL, and WMD from December 2000 through April 13, 2001. Smith visited his home in Boca Winds again during Easter weekend 2001. When he arrived, he was shocked to see the transmission line in place. On April 14, 2001, he talked to his neighbors, the Gutmans, who informed him of some of what had transpired between the homeowners, FPL, and WMD from December 2000 through April 13, 2001, including FPL's Motion to Dismiss the Petition. He agreed to give Gutman an affidavit to help oppose the Motion to Dismiss and to join the Petition.
As set out in the Preliminary Statement, on May 3, 2001, the original Petitioners filed the Affidavit of Ballard Smith as part of their opposition to FPL's Motion to Dismiss. In it, Smith swore that he lived in Bradenton and was not aware of WMD's actions until April 14, 2001; he also swore that he "substantially agrees" with the Petition and "joins with the Petitioners in this Case No. 01-1504." While not clear from the Affidavit itself, Smith clarified in his testimony that he intended by the Affidavit to join in the Petition.
On May 18, 2001, Petitioners filed an Amended Petition. The Amended Petition listed 13 individual Petitioners--those included in the above-caption (including Smith), plus one other who later voluntarily dismissed and was dropped.
The Amended Petition states that Petitioners' interests in this proceeding are based on the following concerns: (i) the effects of electromagnetic fields (EMF);
(ii) impact on Petitioners' property values; (iii) aesthetics and loss of quiet enjoyment; (iv) structural safety; and (v) interference with radio and television.
Several Petitioners testified to concerns that the transmission line would interfere with the operation of the Hillsborough Canal and cause their properties and roads to
flood, and Tennant testified that the transmission line interfered with her husband's fishing in the canal. The Amended Petition did not allege that these things affected Petitioners in particular, as opposed to the community in general. But they were heard without objection and by implied consent. Likewise, Tennant's testimony about her family's canoeing and kite-flying being impacted by the transmission line were heard without objection and by implied consent.
EMF
Petitioners Badillo, Smith, Rosenman, Weinstein, Tennant, and the Gutmans expressed concerns about EMF generated by transmission lines (although Smith disclaimed any personal interest in the issue.) The remaining Petitioners did not express EMF concerns.
The only competent, substantial evidence in the record on Petitioners' medical concerns about EMF were two booklets--one produced in 1995 by the National Institute of Environmental Health Sciences and the United States Department of Energy, and another produced by the Department of Engineering and Public Policy of the Carnegie Mellon University--which FPL provides to those asking for information about EMF. These booklets did not prove that medical or health impacts on Petitioners are likely as a result of the Parkland Transmission Line. Far from proving immediate
injury, these booklets at most were only enough to generate some speculation about possible medical or health impacts.
Property Values and Aesthetics
The Amended Petition states that the presence of the Parkland Transmission Line will adversely impact Petitioners' property values, decreasing values by 20-30 percent. This claim is coupled with claims regarding the aesthetics of the facilities.
As to property values, there was no competent, substantial evidence in the record to support Petitioners' contentions. Petitioners made no attempt to substantiate their expressed concern of a drop in property values. They presented no expert evidence regarding property values, none that sales of homes in the area have been or will impacted, and none that the sale price of any home has been lower than it would have been without installation of the transmission line.
As for aesthetics, the only evidence was the opinions of several Petitioners who testified that the transmission lines are unsightly. Even if this was enough to prove diminished aesthetics, at least for Petitioners closest to the transmission line, there was no evidence to causally connect diminished aesthetics to a reduction in property value, so as to be actionable in this proceeding.
Structural Safety
Petitioners presented no competent, substantial evidence that the Parkland Transmission Line is structurally unsound or in any reasonable danger of failure. FPL presented ample evidence to the contrary.
The Parkland Transmission Line is designed to meet FPL's internal standards. FPL's internal standards are more stringent (i.e., designed to withstand heavier loads) than the present regulatory requirements for wind-loading and structural safety. FPL's internal standards are also more stringent than the voluntary standards for electric transmission facilities developed by the American Society of Civil Engineers (ASCE). The structural strength of FPL's transmission line also exceeds the requirements of both the Broward and Palm Beach County building codes.
Based largely on FPL's stringent internal standards, the National Electrical Safety Code (NESC) is being revised to improve the wind-loading standards for electric transmission poles. Because the new standards are based on FPL's existing internal standards, the Parkland Transmission Line structures are designed to comply with the new NESC that is currently in the final stages of development.
FPL's stringent design standards make the possibility for Petitioners to be affected by a failed
transmission pole or conductor extremely remote and speculative.
Petitioners have expressed a concern over the effects of hurricanes on FPL's concrete transmission poles. However, it is highly unlikely that any portion of the transmission line would fail in a hurricane. FPL's experience reveals that no concrete transmission pole has ever been lost to a Category 3 hurricane, which is a 1-in-100 storm event. Hurricane Andrew, which was a 1-in-400 year storm event, was the only hurricane known to have affected such poles. Even then, 92 percent of FPL's poles stood up. The likelihood of a storm of that magnitude hitting the area where Petitioners' homes are located is very remote. Additionally, the poles along the Parkland Transmission Line are built to FPL's post- Andrew standards and have more load-bearing capacity than the poles in place during Andrew.
Petitioners questioned the credibility of FPL's evidence on the structural integrity of FPL's transmission poles and lines, contending that FPL's design calculations for wind-loading failed to increase the basic design wind speed by the terrain factor for exposure category "D." According to the "Guidelines for Electrical Transmission Line Structural Loading," ASCE Manual No. 74, Exposure D is "described as
unobstructed coastal areas directly exposed to wind flowing over large bodies of water."
Petitioners contend that Exposure D applies because the Hillsboro Canal "runs for miles along the transmission line." But FPL Structural Engineer, C. Jerry Wong, Ph.D., P.E., testified clearly and persuasively that the presence of the Hillsboro Canal does not place the Parkland Transmission Line in an Exposure D setting.
Even if failure of a pole were to occur during a hurricane, the chance that a pole would fall and hit one of Petitioners' homes still would be remote. For all Petitioners except Leserra, the poles are too far away for that to happen. The poles, which weigh 45,000 pounds apiece, are too heavy to become airborne. Petitioners presented no competent, substantial evidence suggesting that either a pole or electric conductor could somehow become airborne and reach the property of any Petitioner except Leserra. The only record evidence on this point established that, when there is a structural failure, the pole and the conductor fall down approximately right below where the transmission line is located. The odds of one of these homes being hit by a pole or transmission line due to high winds are almost zero. Even in the case of Leserra, who is the closest to the transmission line at approximately 69 feet away, the odds of his house being hit by
a pole due to high winds is less than two-tenths of one percent.
Because the transmission line is designed to have higher structural capacity than required by local building codes, it is likely that any winds strong enough to have the potential to damage the line would also destroy surrounding homes. It is far more likely that Petitioners' homes would be destroyed and strike the transmission line than the other way around. In any event, if a hurricane was strong enough to topple one of FPL's transmission line poles or blow down lines, it also would be strong enough already to have destroyed Petitioners' homes. So even if by some bizarre and remote chance a pole or wires blew into one or more of Petitioners' homes, the homes probably already would have been destroyed by such a storm.
Petitioners next expressed concern regarding one of the poles being struck by a vehicle, such as a fully-loaded commercial truck. For most Petitioners, even if a truck could knock down a pole, the pole would not reach their property. Only Leserra's home is close enough for there to be any possibility of this happening.
Even in Leserra's case, it is next to impossible for a truck to cause one of the poles to fall. The only truck traffic near the poles is on Loxahatchee Road, which runs
parallel to the pole line. The poles are separated from the road by a guard rail designed to withstand a 50 mile per hour (mph) collision. The maximum weight of a truck allowed on the road is 80,000 pounds. Such a truck would have to hit a pole at a near right angle and at over 100 mph to have any chance of causing a failure. Because the trucks travel parallel to the pole line, and there is a guardrail in the way, the chance of failure from a collision is extremely remote and speculative. In essence the truck would need to make a 90- degree turn near the pole, break through the 50-mph guard rail a few feet away, and still be traveling at over 100 mph at the time it struck the pole. Then, the pole would have to fall in the opposite direction from the impact to hit Leserra's home. The odds of something this bizarre happening are extremely remote.
Finally, it is noted that FPL's Permit has an
indemnity clause, which "requires that FPL hold and save the South Florida Water Management District and its successors harmless from any and all damages, claims or liabilities which may arise by reason of the construction maintenance or use of the work or structure involved in the permit." Since this makes it clear that any liability resulting from the presence of the transmission line must be borne by FPL alone, any claim
that a structural failure could lead to liability for WMD is speculative at best.
Flooding Concerns
Several Petitioners testified to concerns about flooding in the Boca Winds subdivision by blocking of subdivision drainage culverts that flow into the Hillsborough Canal or by interference with WMD's routine maintenance of the canal. But Petitioners presented no competent, substantial evidence that flooding for these reasons would be likely.
There are two box culverts leading from Boca Winds into the Hillsborough Canal. But, as required by WMD rules, the Boca Winds storm water system is designed to accommodate a 3-day long, 1-in-100 year storm event, with no external outflow. In other words, the system is designed to function without the drainage culverts in even this extreme rainfall condition.
There is only a one-percent chance that a 1-in-100- year rainfall event would hit Boca Winds in any given year. In any storm of this magnitude or less, the onsite system would be sufficient to accommodate the rainfall with no flooding of the floor elevation of Petitioners' homes. The possibility that any one storm event would even require drainage into the Hillsborough Canal to prevent flooding in Boca Winds is therefore remote.
The culverts leading to the Hillsboro Canal essentially provide additional drainage capacity to the internal storm water management system of Boca Winds. In addition, by slowly draining ("bleeding") water from the Boca Winds subdivision to the canal, they allow the system to recover capacity for subsequent rain events.
It is highly unlikely that a transmission pole, even if it was to shear off and fall toward the canal-which is in itself an extremely remote possibility--could in any way impede the functions of either the drainage structures or the canal. Even if a pole were to fall and directly strike and crush one of the two drainage structures, it probably would not appreciably affect the culvert's ability to bleed water into the canal. The drainage into the structures is controlled initially by a weir at the inflow point, not by the pipe diameter at the outflow. Even if a pole were to somehow crush the outflow pipe, water would continue to flow into the canal at roughly the same rate.
A pole falling into the canal itself would not affect the ability of the canal to provide drainage. If a pole were to fall into the canal, it would most likely do so top first. Because the pole is tapered, only a small cross section would enter the canal, which would have almost no effect on the flow of water.
Even assuming that a pole were to enter the canal in its entirety, it would affect only a minimal portion of the canal cross section and would not significantly affect the flowage capacity of the canal. Even multiple poles falling completely in the canal--an extremely unlikely event--would not significantly affect the function of the canal, due to the small cross-section taken up and the distance between the poles.
Most maintenance of the Hillsborough Canal is done with herbicides and from boats in the canal itself. There is rarely a need to use heavy land-based equipment to maintain a drainage canal.
The Parkland Transmission Line is on the south bank of the canal, and the Permit provides for the poles to be set approximately 450 feet apart and more than 14 feet from the top of the canal bank. (In many instances the poles are much more than 14 feet from the top of the canal bank). The Permit provides that the poles are to be installed with turn structures that allow at least a 14-foot passing zone around each pole. This is sufficient for the types of vehicles used by WMD to pass around the poles, assuming there was a need to drive along the south bank of the canal. Most heavy equipment can operate from the passing pad and from the space between poles.
When heavy equipment is needed, a backhoe or grade- all is typically used. Both of these types of equipment can operate unimpeded from the south side of the canal. A grade- all operating from the south bank has sufficient reach to dredge the bottom of the canal should that be necessary and is the optimal piece of equipment for such an operation. The transmission line would not affect the operation of a grade- all from the southern bank of the canal.
Because of the higher elevation, a grade-all would not be used from the north bank, and a crane would be used if there were a need to conduct dredging from that direction. However, because of its location, the transmission line would not impede any equipment use on the north bank. Moreover, if any extensive dredging were done, the routine method would be to operate from a barge on the canal itself, which would also not be affected by the transmission line.
There also is no way that the presence of the transmission line could affect the maintenance of the outfall structures from Boca Winds. Any maintenance of those structures would be performed from the north bank of the
canal-the side opposite to the transmission line-or from boats or barges operating in the canal.
Petitioners introduced evidence to prove that, in some instances, the poles may not have been installed as
provided in the permit, with not enough room between the poles and the top of the bank on one side or Loxahatchee Road on the other. It was not clear from their evidence whether this may have occurred in more than two instances, or in any instance other than where the transmission line intersected the canal and changed direction near a culvert. Even if proven, these would have amounted to compliance enforcement issues, not permitting issues. It was not proven that the installation design at these locations was improper; if installation was designed properly but implemented improperly, it was not proven that installation as designed was impossible at these locations. Finally, it was not proven that the installation hampered canal maintenance.
Leserra also expressed concerns about flooding of his property from a north-south drainage ditch along his property line, which conveys water from the south to a box culvert under Loxahatchee Road to the Hillsboro Canal, draining a significant area in the vicinity of Parkland. There was little evidence on the operation of Leserra's drainage ditch. The little evidence presented was insufficient to prove the likelihood of flooding of Leserra's property due to the existence of the transmission line. The evidence presented about the Hillsboro Canal in general suggests that flooding of Leserra's property due to the
existence of the transmission line is highly unlikely. Indeed, there was no testimony that water in the Hillsborough Canal has ever risen above its banks, even in major rain events.
Recreational Use of Canal
Tennant testified that her husband regularly used the Hillsboro Canal for fishing and canoeing before the transmission line was installed. The transmission line does not physically obstruct canoeing or fishing in the canal, but her husband chooses not to canoe or fish in the canal any longer due to medical and health concerns and for aesthetic reasons. He does not enjoy those activities as much any more due to the transmission line being there both visibly and audibly. (It makes a noise described as "buzzing" or "humming.")
Tennant also testified that her family used to fly kites from the dirt road in the ROW along the north side of the canal behind their home. Due to the proximity of the transmission line, this activity no longer is safe and has been discontinued.
CONCLUSIONS OF LAW
Subject Matter Jurisdiction
WMD is the administrative agency charged with the responsibility to conserve, protect, manage, and control water
resources within its boundaries under Chapter 373, Florida Statutes (2001), and WMD's rules promulgated in Title 40E, Florida Administrative Code. (All statutes cited are sections of Florida Statutes (2001); all rules cited are from the current Florida Administrative Code.)
The Hillsborough Canal and its ROW are "works of the district," as the term is defined in Section 373.019(23).
Section 373.085 authorizes WMD's Governing Board to prescribe the manner in which local works provided by other districts or by private persons will connect with and make use of the works or land of the district; and to issue permits for such connections and use.
WMD adopted Rules Chapter 40E-6 as its policies for use of the works or ROW based upon its proprietary capacity as landowner; and as such, its responsibility to retain authority and control over the use of such works and lands for the express purpose of providing flood protection, regulating water levels in canals, and other benefits.
Under these statutes and rules, WMD clearly has jurisdiction to determine whether to allow transmission pole lines to be placed in WMD ROW upon consideration of criteria in Rule 40E-6.221.5
Rule 40E-6.221 sets out criteria for evaluating applications for ROW permits and provides in pertinent part:
In determining whether a standard permit should be issued, the District shall consider whether the proposed activity unduly burdens the District's interests.
In making this decision, the District shall weigh the following critical factors:
interferes with the present or future construction, alteration, operation or maintenance of the works or lands of the District;
* * *
(c) has an actual or potential negative impact upon environmentally sensitive areas, which include: wetlands; endangered or threatened species habitat; aquatic preserves; Outstanding Florida Waters; Class I or Class II waters; federal, state and privately owned parks and wildlife management areas; designated areas of critical state concern; lands purchased by federal, state and local governments for the purpose of environmental protection, water resource protection and aesthetics; and lands which contain native terrestrial plant species in significant amounts. Environmentally sensitive areas include areas on and off-site that are affected by activities which occur on, or are initiated from, the works of the District;
* * *
(i) presents an increased liability risk to the District;
* * *
(k) interferes with actual or potential public use of the District's works or lands, including public recreational or other facilities not within the District's works;
* * *
(8) No commercial uses will be allowed on District rights of way. There shall, however, be no presumption against allowing commercial use of the District right of way by utilities.
Timeliness
FPL has taken the position in this case that WMD has no jurisdiction because Petitioners did not timely petition for an administrative hearing on FPL's Permit and Waiver. Actually, the time for filing such a petition is "not jurisdictional in the sense that failure to comply is an absolute bar to appeal but is more analogous to statute[s] of limitations which are subject to equitable considerations such as tolling." Machules v. Dept. of Admin., 523 So. 2d 1132, 1133, n. 2 (Fla. 1988). See also Abusalameh v. Dept. of Bus. Reg., 627 So. 2d 560 (Fla. 4th DCA 1993); Castillo v. Dept. of Admin., Div. of Retirement, 593 So. 2d 1116 (Fla. 2nd DCA 1992); Stewart v. Dept. of Corrections, 561 So. 2d 15 (Fla. 4th DCA 1990); General Motors Corp., etc., v. Gus Machado Buick-GMC, Inc., et al., 581 So. 2d 637 (Fla. 1st DCA 1991); Robinson v. Fla. Unemployment Appeals Comm'n, 526 So. 2d 198 (Fla. 4th DCA 1988); Rothblatt v. Dept. of Health, etc., 520
So. 2d 644 (Fla. 4th DCA 1988). But if such a petition is late, it may be time-barred, and the agency's jurisdiction will not have been effectively invoked.
WMD takes no position on Petitioners' timeliness; it only takes the position that the petition with signatures collected by Petitioners other than Leserra and Smith (together with other homeowners who are not seeking an administrative hearing) and dated November 18, 2000 (the "November 18 petition") did not constitute a petition for an administrative hearing on FPL's Permit.
Under Florida's Administrative Procedure Act, affected persons must be given a "clear point of entry" to challenge agency action. The "clear point of entry" concept was articulated by the First District in Capeletti Bros. v. Department of Transportation, 362 So. 2d 346, 348 (Fla. 1st DCA 1978), in which the court held that:
an agency's rules must clearly signal when the agency's free-form decisional process is completed or at a point when it is appropriate for an affected party to request formal proceedings . . .. In other words, an agency must grant affected parties a clear point of entry, within a specified time after some recognizable intended agency action to formal or informal administrative proceedings.
Notice of agency action that fails to inform a party of its right to seek administrative review and the relevant time limits is inadequate to trigger commencement of the
administrative process. See Florida League of Cities, Inc. v. Administration Commission, 586 So. 2d 397 (Fla. 1st DCA 1991); Henry v. Department of Administration, 431 So. 2d 677 (Fla.
1st DCA 1983); Wahlquist v. School Board of Liberty County,
423 So. 2d 471 (Fla. 1st DCA 1982). The concept of a "clear point of entry" was further defined in Latin Express Service, Inc. v. Department of Revenue, 660 So. 2d 1059 (Fla. 1st DCA 1995). The Latin Express court mandated that Florida state agencies inform an affected person of the full range of administrative and judicial remedies available under the law, as well as the time limits which apply.
Consistent with these cases, Section 120.569(1) provides that: parties shall be notified of any order, including a final order; each notice shall inform the recipient of any administrative hearing or judicial review that is available under Sections 120.569, 120.57, or 120.68, Florida Statutes; the notice shall indicate the procedure which must be followed to obtain the hearing or judicial review; and the notice shall state the time limits that apply.
The Uniform Rules of Procedure is found in Rules Chapter 28-106. Rule 28-106.111 states in pertinent part:
(1) The notice of agency decision shall contain the information required by Section 120.569(1), F.S. . . ..
* * *
(4) Any person who receives written notice of an agency decision and who fails to file a written request for hearing or mediation within 21 days waives the right to request a hearing or mediation on such matters.
WMD also has two nearly identical rules addressing points of entry into agency actions: Rule 40E-0.109, published as an exception to the Uniform Rules of Procedure, states in pertinent part:
Point of Entry Into Proceedings and Mediation. Point of entry into proceedings determining substantial interests are governed by Rule 28-106.111, F.A.C., and this section.
(a) "Receipt of written notice of agency decision" as set forth in Rule 28- 106.111, F.A.C., means receipt of either written notice through mail or posting that the District has or intends to take final agency action, or publication of notice that the District has or intends to take final agency action.
If notice is published pursuant to this chapter, publication shall constitute constructive notice to all persons. Until notice is published, the point of entry to request a formal or informal administrative proceeding shall remain open unless actual notice is received.
If the Board takes action which substantially differs from the notice of intended agency decision, the applicant or persons who may be substantially affected shall have an additional point of entry pursuant to Section [sic] 28-106.111, F.A.C., unless otherwise provided by law. The Board action is considered to substantially differ from the notice of intended agency decision when the potential impact on water resources has changed.
Rule 40E-1.511 states in pertinent part:
Procedures regarding point of entry into proceedings determining substantial interests and mediation are set forth in the Uniform Rules of Procedure Section [sic] 28-106.111, F.A.C. The following exceptions are applied in combination with the applicable Uniform Rules of Procedure.
(a) "Receipt of written notice of agency decision" as set forth in Rule 28- 106.111, F.A.C., means receipt of either written notice through mail or posting that the District has or intends to take final agency action, or publication of notice that the District has or intends to take final agency action.
(b) If notice is published pursuant to this chapter, publication shall constitute constructive notice to all persons. Until notice is published, the point of entry to request a formal or informal administrative proceeding shall remain open unless actual notice is received.
If the Board takes action which substantially differs from the notice of intended agency decision, the applicant or persons who may be substantially affected shall have an additional point of entry pursuant to Section [sic] 28-106.111, F.A.C., unless otherwise provided by law. The Board action is considered to substantially differ from the notice of intended agency decision when the potential impact on water resources has changed.
(Paragraphs (3) in both of these WMD rules, which shorten the time to file to 14 days, are inapplicable to ROW permits.)
As stated in the Notice of Rights attached to WMD's Order Granting Waiver entered July 26 nunc pro tunc July 13, 2000, and as provided in Rules 40E-1.511, 40E-0.109, and 28- 106.111, the WMD actions granting FPL a waiver of rule
requirements and granting its application for ROW use would become final 21 days after receipt of mailed, posted, or published notice of WMD's actions or intended actions. It is clear that Petitioners did not receive mailed notice at the time. Nor does FPL rely on "posted" notice. (The record is not clear as to what "posted" notice means, but it is clear that notice was not given by "posting" in this case.) Instead, FPL relies initially on constructive notice by publication under the provisions of Rules 40E-1.511(1)(b) and 40E-0.109(1)(b).
The only WMD rule further defining constructive notice by publication is Rule 40E-1.5095, which states:
In cases where a project is determined to be of heightened public concern, or where there is the likelihood of a request for an administrative hearing, where the proposed activity is potentially harmful to the water resources of the District or contrary to the overall objectives of Chapter 373, F.S., as outlined in Section 373.016, F.S., or if objection(s) to the application has been received, the District shall publish, or require the permit applicant to publish notice of agency decision or intended agency decision in the Florida Administrative Weekly or newspapers of general circulation in the area affected by such decisions as required by Chapter 50, F.S., and shall post notice and mail copies of its notice to applicants and interested groups. Such publication may be used as evidence of constructive and sufficient notice.
Under this rule, WMD is required to publish or require the permit applicant to publish notice only on the occurrence of one of several conditions precedent. If a condition precedent occurs, the rule appears to require WMD to choose the form of publication-FAW or newspaper of general local circulation.
The possibility for publication in the FAW upon the occurrence of one of the conditions precedent seems curious since local affected persons would be less likely to see notice in the FAW (as happened in this case.)
In any event, it does not appear that any of the conditions precedent in Rule 40E-1.5095 occurred in this case. As to the conditions precedent of concern under the facts of this case, there was no evidence that WMD had received objections to FPL's applications for permit and waivers; and there was no evidence that WMD had determined FPL's applications for permit and waivers to have been of "heightened public concern," or had determined there to be the likelihood of a request for an administrative hearing (at least questionable determinations, in retrospect.)
While WMD does not appear to have published notice due to the requirements of Rule 40E-1.5095, notices were published in the FAW apparently for purposes of complying with Section 120.542--the procedures for obtaining a variance or waiver from rules. FPL contends that, as a result and by
operation of WMD's rules, Petitioners had constructive notice through these publications.
First, FPL contends that Petitioners had constructive notice through publication in the FAW on June 23, 2000, and that their point of entry closed 21 days after publication--on July 14, 2000, just one day after the WMD actions took place and before they were reduced to writing and rendered by filing. But this publication did not mention the intended action; it only noticed a general meeting and stated that an agenda could be obtained from WMD. Although the agenda described the intended action in detail, it is concluded that the publication was insufficient notice of "agency decision or intended decision" under the applicable rules, including Rule 40E-1.5095.
A second FAW notification was published on September 8, 2000. Unlike the FAW notification published on June 23, 2000, the one published on September 8, 2000, described FPL's project in detail within the body of the FAW notification, setting forth the location of the project, the basis for the waivers, and WMD findings justifying the waivers. But intended to comply with the requirements of Section 120.542, it did not mention WMD's decision to grant FPL's application for a permit for ROW use. While it may have given constructive notice that WMD had taken final agency
action on FPL's waiver application, so that the time period for challenging FPL's waivers under Rules 40E-1.511(1)(b) and 40E-0.109(1)(b) arguably ran by September 29, 2001, it did not start the running of the 21 days for challenging WMD's decision to issue FPL its ROW Permit.
FPL also contends in the alternative that Petitioners subsequently got actual notice and that, under Rules 40E-1.511(1)(b) and 40E-0.109(1)(b), their point of entry closed 21 days after such actual notice. Much of the hearing was devoted to an attempt to ascertain when Petitioners got actual notice so as to "trigger" their point(s) of entry. Compare Woodard v. Florida State University, 518 So. 2d 336, 339 (Fla. 1st DCA 1987); Prime Orlando Properties, Inc. v. Dept. of Bus. Reg., Div. of Land Sales, Condominiums and Mobile Homes, 502 So. 2d 456, 458 (Fla. 1st DCA 1986) (and cases cited); Dickerson, Inc. v. Rose, 398 So. 2d 922 (Fla. 1st DCA 1981).
Citing Wentworth v. State, Dept. of Environmental Protection, 771 So. 2d 1279 (Fla. 4th DCA 2000), FPL contends that Petitioners' points of entry were triggered either when they first saw the transmission line poles being installed or when they first learned of WMD's "involvement" in FPL's project (i.e., that WMD granted FPL's Permit.) But Wentworth did not hold that either of these events "triggers" the point
of entry for all permits involved; it only held that a request for administrative hearing filed promptly after knowledge of the project is timely.
"Actual notice" is not defined by statute or rule.
While WMD's Rules 40E-1.511(1)(a) and 40E-0.109(1)(a) define "[r]eceipt of written notice of agency decision as set forth in Rule 28-106.111" to mean "written notice . . . that [WMD] has or intends to take final agency action," such notice clearly also must inform recipients of their hearing rights. Rule 28-106.111(1) requires that "notice of agency decision shall contain the information required by Section 120.569(1)." Section 120.569(1) states in pertinent part: "Each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section, s.
120.57, or s. 120.68." It is concluded that, like written notice, "actual notice" so as to "trigger" a point of entry also must include knowledge of the hearing rights flowing from agency action, not just knowledge of the project's existence, or even knowledge of an agency's permitting activity in connection with the project. See Latin Express, supra. Cf.
Perdue v. TJ Palm (Beach) Associates, Ltd., and South Florida Water Management District, 755 So. 2d 660 (Fla. 4th DCA 1999)(petitioner obtained knowledge of hearing rights from review of WMD file).
As to receipt of actual notice, Smith and Leserra are in essentially different postures from the other Petitioners, who received actual notice much earlier. It has been found by inference that Petitioners other than Leserra and Smith first obtained knowledge of their hearing rights from Attorney Walker in early December 2000, months before the Petition was filed on April 6, 2001, but less than 21 days before these Petitioners filed (or attempted to file) their November 18 petition during the Governing Board's meeting on December 14, 2000. (Uniform Rule 28-106.104(1) provides that "filing shall mean received by the office of the agency clerk during normal business hours or by the presiding officer during the course of a hearing." No WMD rule exception conflicts with this Uniform Rule.) Contrast Perdue v. TJ Palm (Beach) Associates, Ltd., and South Florida Water Management District, supra (ALJ found that no petition was filed prior to the late petition).
WMD contends that the November 18 petition cannot
be construed as a petition for an administrative hearing under Sections 120.569 and 120.57 because such a finding would be inconsistent with Petitioners' contention that they were not fully cognizant of their rights to such a hearing until much later. But these Petitioners obtained knowledge of their hearing rights before the November 18 petition was filed.
Whether they had such knowledge while the petition was being prepared and signed is not dispositive.
WMD also points out, correctly, that the November 18 petition did not meet the requirements of a petition for an administrative hearing set out in Rule 28-
106.201(1), as required by Section 120.569(2)(c). But under the holding in McIntyre v. Seminole County School Bd., 779 So. 2d 639, 642-643 (Fla. 5th DCA 2001), the appropriate WMD action would have been to accept the November 18 petition for filing and dismiss it without prejudice under Rule 28- 106.201(4).
In McIntyre, a school board gave its school transportation manager written notice of the school board's intent to suspend him for positive drug test result, as well as his right to petition for an administrative hearing within
21 days. The employee timely delivered a letter indicating that he did not want not be suspended, that he was gathering information, that the drug test was erroneous, that a second drug test was negative, and that his employment record should be considered. The letter did not specifically request an administrative hearing. Perceiving the letter to be insufficient to petition for an administrative hearing, the school board erroneously ignored it and dismissed the
employee's subsequently filed petition for an administrative hearing as untimely.
In several ways, the November 18 petition in this case is similar to the letter in McIntyre. A major difference is the time that elapsed until the specific petition for administrative hearing was filed.6 But the facts of this case explain the delay. As found, on December 14, 2000, FPL and these Petitioners (other than Leserra and Smith) reached an agreement under which FPL would postpone construction in the vicinity of the homeowners and these Petitioners would "hold any further action, including comment to the Board, until the February Board meeting." WMD scheduled settlement meetings and participated in that process through its Ombudsman. Instead of ruling on the November 18 petition during or after the meeting of the Governing Board on or after February 14, 2001, WMD did nothing and continued to ignore the November 18 petition. As time passed, Petitioners (other than Leserra and Smith) were uncertain how to proceed. Eventually, they approached Ombudsman Williams for assistance and received a response on March 22, 2001. The Petition, which includes mention of the November 18 petition, was filed on April 6, 2001.
Applying McIntyre to these facts, it is concluded
that the Petition filed on April 6, 2001, relates back to the
December 14, 2000, filing of the November 18 petition. See also Totura & Company v. Williams, 754 So. 2d 671, 680 (Fla. 2000)(under rules of civil procedure, amended petition adding defendant related back to motion to amend, which was "full and comprehensive as to facts" and "would stand in place of an actual amendment," so as to defeat new defendant's statute of limitations defense). See also Holley v. Innovative Technology of Destin, Inc., 803 So. 2d 749 (Fla. 1st DCA 2001)(under Florida Rule of Civil Procedure 1.190(c), amended complaint that "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original" relates back); Ron's Quality Towing, Inc. v.
Southeastern Bank of Florida, 765 So. 2d 134 (Fla. 1st DCA 2000)(same; also, relation back doctrine should be liberally applied and applies even if the amended complaint raises new legal theories). Again analogizing to the civil law on statute of limitations, to hold otherwise would be "inconsistent with the . . . the purpose of a statue of limitations, which is 'to promote justice by preventing surprises through revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.'" (Citations omitted.) Totura, supra at 680-681. In this case, FPL was neither surprised by the Petition nor prejudiced in its defense of its Permit.
On the case authorities cited in the preceding paragraph, it also is concluded that the Amended Petition filed on May 18, 2001, relates back to the Petition filed on April 6, 2001. As for those not specifically identified by name in the Petition, all testified that it was their intention to participate as co-Petitioners in that Petition.
FPL makes much of Attorney Walker's knowledge of the generally applicable 21-day time limitation for seeking an administrative hearing and of the difference between petitioning to intervene in a proceeding for the issuance of a permit and asking an administrative agency to initiate proceedings to revoke a permit that has already been issued. But it was not necessarily inconsistent for Petitioners to seek "revocation" of FPL's Permit while maintaining the right to petition for an administrative hearing. Since Petitioners were asserting that they did not get notice or a clear point of entry to participate in the permit proceeding, FPL's permit would be vacated (having the same effect as revocation) if they prevailed on those issues pending a full-blown administrative hearing on the permit application (in the second phase of this bifurcated proceeding). See Wentworth v. State, Dept. of Environmental Protection, supra.
Turning to Leserra, Rule 28-106.201(2)(c) requires
the petitioner to allege when and how notice was received.
But it is a basic and longstanding tenet of administrative law that the party seeking to prove the affirmative of an issue has the burden of proof. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services,
348 So. 2d 349 (Fla. 1st DCA 1977). As mentioned at the outset of this section in Conclusion 102, supra, an administrative "clear point of entry" is "analogous to statute of limitations . . . ." Machules v. Dept. of Admin., supra at 1133, n. 2. Analogizing to civil court, it is the defendant's burden to prove the elements of a defense of statute of limitations. See Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447, 448 (Fla. 1986); Ramos v. Philp Morris Companies, Inc., 743 So. 2d 24 (Fla. 3d DCA 1999); Glass v. Camara, 369 So. 2d 625 (Fla. 1st DCA 1979); Petroleum Products Corp. v. Clark, 248 So. 2d 196 (Fla. 4th DCA 1971). It is concluded that, while Leserra had the burden to prove the merits of his Petition, including his standing, under State Dept. of Health, etc. v. Alice P., 367 So. 2d 1045, 1052 (Fla. 1st DCA 1979), FPL had the burden to prove receipt of actual notice more than 21 days before the filing of Leserr's Petition.
In this case, FPL could not prove that Lessera
obtained sufficient knowledge to establish receipt of actual
notice any sooner than March 16, 2001; and Leserra's 21 days ran on April 6, 2001, the day his Petition was filed. For that reason, Leserra's Petition was timely, and his Amended Petition related back. See Conclusions 122-123, supra.
It is concluded that Ballard Smith petitioned for an administrative hearing upon filing his Affidavit joining in the Petition on May 3, 2001. Since he did not receive actual notice until April 14, 2001, it is concluded that his petition also was timely, and his Amended Petition related back to his "joinder." See Conclusions 122-123, supra.
Petitioners' Standing
In Florida Society of Ophthalmology v. Board of Optometry, 532 So. 2d 1279, 1284 (Fla. 1st DCA 1988), the Court explains the concept of standing as follows:
"[N]ot everyone having an interest in the outcome of a particular dispute over an agency's interpretation of the law submitted to its charge, or the agency's application of that law in determining the rights and interests of members of government or the public, is entitled to participate as a party in an administrative proceeding to resolve that dispute. Were that not so, each interested citizen could, merely by expressing an interest, participate in the agency's efforts to govern, a result that would unquestionably impede the ability of the agency to function efficiently and inevitably cause an increase in the number of litigated disputes well above the number that administrative and appellate judges are capable of handling. Therefore, the legislature must define and the courts must
enforce certain limits on the public's right to participate in administrative proceedings. The concept of standing is nothing more than a selective method for restricting access to the adjudicative process, whether it be administrative or purely judicial, limiting the proceeding to actual disputes between persons whose rights and interests subject to protection by the statutes involved are immediately and substantially affected. Thus, it has been stated, the 'purpose of the law of standing is to protect against improper plaintiffs.'"
Section 120.52(12)(b) defines a "party" to include "[a]ny person . . . whose substantial interests will be affected by proposed agency action . . . ." (Other parts of the definition are not applicable to Petitioners.) It was held in Agrico Chemical Co. v. Dept. of Environmental Reg., 406 So. 2d 478, 482 (Fla. 2nd DCA 1981):
We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show (1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and (2) that his substantial injury is of a type or nature which the proceeding is designed to protect.
See also Ameristeel Corp. v. Clark, 691 So. 2d 473 (Fla. 1997).
The first prong of the Agrico test--injury-in-fact-
-requires a showing of special injury greater than injury suffered by the public in general. See Agrico, supra at 479-
480. See also Florida Society, supra at 1285; Grove Isle,
Ltd. v. Bayshore Homeowners' Ass'n, Inc., 418 So. 2d 1046, 1048 (Fla. 1st DCA 1982). FPL argued that all of Petitioners' allegations failed this test because they alleged injuries no different from those suffered by other people who live near high voltage transmission lines. But it is concluded that Petitioners do not fail the test just because there may be some other projects in other places that similarly affect some other people who live in close proximity to those projects.
For purposes of the first prong of the Agrico test, those small segments of the general population should not be equated with the "general public." Rather, the "general public" includes the vast majority of people not living in close proximity to these kinds of projects.
Petitioners alleged loss of aesthetic views and argued that this is an injury of the type protected by Rule 40E-6.221(2)(c), so as to satisfy the second prong of the Agrico test--injury "of a type or nature which the proceeding is designed to protect." See Ameristeel Corp. v. Clark, supra at 478; Agrico supra at 482. But there was no allegation or proof that the Hillsboro Canal and the WMD ROW on either side of it are "environmentally sensitive areas," which is what that rule protects.
Petitioners alleged loss of enjoyment of Hillsboro Canal by recreational fishermen. Loss of enjoyment of the
canal by recreational fishermen might be an injury of the type protected under Rule 40E-6.221(2)(k), but Petitioners did not allege that any of them felt this loss. Failure to make such an allegation would have been fatal to Petitioners' standing because of the requirement of the first prong of the Agrico test for Petitioners to make a showing of special injury greater than injury suffered by the public in general. See Agrico, supra at 479-480. See also Florida Society, supra at 1285; Grove Isle, Ltd. v. Bayshore Homeowners' Ass'n, Inc., supra 1048. But at hearing the parties consented to trial of the issue whether the Tennants used the canal for canoeing and fishing and the dirt road for kite-flying.
Based on the evidence presented at hearing, it is concluded that the Parkland Transmission Line does not "interfere with" the Tennants' use of the Hillsboro Canal for canoeing or fishing. Rather, the Tennants have chosen not to canoe or fish in the canal due to the presence of the transmission line. On the other hand, the evidence proved that the transmission line does "interfere with" kite-flying from the dirt road in the ROW along the north side of the canal behind the Tennant home.
It is concluded that loss of the ability to fly kites in the ROW is not "substantial" enough of an injury to support standing for an administrative proceeding on WMD's
intention to grant an application for a ROW use permit. Compare and contrast Herold v. University of South Florida ,
____ So. 2d ____, 2002 WL 215624 (Fla. 1st DCA 2002)(professor's interest in application for promotion not "substantial"); Putnam County Environmental Council, Inc. v. Bd. of County Commissioners of Putnam County, 757 So. 2d 590 (Fla. 5th DCA 2000)(allegation that rezoning from agricultural to mining "would adversely affect his quality of life by its negative impact on Putnam County's wildlife population and habitat . . . was not sufficient to carry the day for" one petitioner because he "failed to demonstrate any specific injury"; another petitioner, an environmental association identified by the acronym PCEC, was accorded standing on allegations of "specific injuries that PCEC would
suffer . . . , including the destruction of the habitat of species being studied by PCEC members and the elimination of PCEC members' access to the forest and the forest's creatures by the overgrowth of the forest"); Friends of the Everglades, Inc. v. Bd. of Trustees of the Internal Improvement Trust Fund, 595 So. 2d 186, 190 (Fla. 1st DCA 1992)("allegations are that FOE's members are presently using the property in a manner which is consistent with the purposes and intent of section 253.023, Florida Statutes").
It also is concluded that kite-flying by a single parent and child does not prove "public use of the District's works or lands" for kite-flying, as the phrase is used in Rule 40E-6.221(2)(k). For that reason, too, the alleged injury does not satisfy the second prong of the Agrico test--injury "of a type or nature which the proceeding is designed to protect"--and is insufficient to support the Tennants' standing. See Ameristeel Corp. v. Clark, supra at 478; Agrico, supra at 482.
Petitioners alleged injuries of the type or nature which a WMD ROW permit is designed to protect under WMD's Rule 40E-6.221(2)(a)--"inability of District to properly perform and maintain operations necessary to insure flood protection to the entire community." As allegations of injury suffered by the general public, they were not sufficient. See Agrico, supra at 479-480. See also Florida Society, supra at 1285; Grove Isle, Ltd. v. Bayshore Homeowners' Ass'n, Inc., supra at 1048. But at hearing the parties consented to trial of the issue whether flooding would affect Petitioners in particular so as to support their standing. However, while the evidence proved a direct connection between the Hillsboro Canal and storm water management systems affecting Petitioners, the evidence failed to satisfy another part of the first prong of
the Agrico test--an "injury in fact which is of sufficient immediacy."
If the injury alleged is hypothetical, conjectural or speculative, rather than real and immediate, it is insufficient to entitle the party to a hearing under Sections
120.569 and 120.57(1). See International Jai-Alai Players' Ass'n v. Florida Pari-mutuel Comm'n., 561 So. 2d 1224 (Fla. 3d DCA 1990); Bd. of Optometry v. Florida Society of Ophthalmology, 538 So. 2d 878, 881 (Fla. 1st DCA 1988); Village Park Mobile Home Association, Inc. v. Dept. of Business Reg., 506 So. 2d 426, 433-434 (Fla. 1st DCA 1987). The "immediacy" requirement is intended to preclude participation based on stated concerns that are speculative or remote. In that sense, it builds a "reality check" into the injury-in-fact requirement of standing. In this case, Petitioners failed to prove the likelihood of flooding due to the existence of the Parkland Transmission Line.
In the Order Denying Motion to Dismiss entered on July 18, 2001, it was ruled that Petitioners' allegations of risk of loss of life and property from toppling of transmission poles in high (Category 3 hurricane force) wind appeared to allege injury of the type specifically protected under Rule 40E-6.221(2)(i), so as to satisfy the second prong of the Agrico test. Additional allegations of loss of life
and property as a result of the Parkland Transmission Line-- alleged direct losses from toppling of poles and conductors, alleged indirect losses from flooding, or alleged medical or health injuries from EMF--appeared to have been tried by implied consent. But FPL argued in its Proposed Recommended Order essentially in the alternative either: (1) that Petitioners' allegations of risk of loss of life and property are not injuries of the type or nature which a WMD ROW permit is designed to protect under WMD's Rule 40E-6.221(2)(i) because they do not allege "an increased liability risk to [WMD]s"; or (2), if Petitioners have alleged "an increased liability risk to [WMD]," such injuries are not special injuries to Petitioners but are injuries suffered by the general public (as a share of the burden of taxation to finance the activities of WMD) and are insufficient to support Petitioners' standing. (Emphasis added.) See Agrico, supra at 479-480. See also Florida Society, supra at 1285; Grove Isle, Ltd. v. Bayshore Homeowners' Ass'n, Inc., supra at 1048. On reflection, it is concluded that FPL's arguments have merit and that Petitioners' allegations are legally insufficient to confer standing.
Even if Petitioners' allegations were legally
sufficient, the evidence failed to satisfy the part of the first prong of the Agrico test requiring proof of an "injury
in fact which is of sufficient immediacy." As with Petitioners' flooding concerns, Petitioners failed to prove the likelihood of either loss of life and property or "an increased liability risk to [WMD]." As to the latter, the indemnification clause in FPL's WMD Permit in favor of WMD eliminates any "increased liability risk to [WMD]." Cf. Ray v. Pensacola Sertoma Club, Inc., ____ So. 2d ____, 2002 WL 220068 (Fla. 1st DCA 2002).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Amended Petition for lack of standing.
DONE AND ENTERED this 27th day of February, 2002, in Tallahassee, Leon County, Florida.
___________________________________
J. LAWRENCE JOHNSTON 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 27th day of February, 2002.
ENDNOTES
1/ There also were allegations of "inability of District to properly perform and maintain operations necessary to insure flood protection to the entire community," an injury of the type protected under Rule 40E-6.221(2)(a), and allegations of loss of enjoyment of the Hillsboro Canal by recreational fishermen, which might be an injury of the type protected under Rule 40E-6.221(2)(k); but it was ruled that these allegations were legally insufficient because they alleged injuries suffered by the general public, not by Petitioners in particular.
2/ See footnote 1, supra.
3/ The Basis of Review is incorporated by reference in WMD's rules by Rule 40E-6.091.
4/ Lythgoe did not testify, but her statements and those of others at this meeting are paraphrased from testimony of others and exhibits, including meeting notes made by participants.
5/ As FPL points out, other agencies have exclusive jurisdiction in areas related to transmission lines. For example, EMF generated by the transmission of electricity are regulated by the Department of Environmental Protection (DEP), which has exclusive power to "establish requirements by rule that reasonably protect the public health and welfare from electric and magnetic fields associated with existing 230 kV or greater electrical transmission lines." Section 403.061(30). DEP has adopted such rules, which are codified in Rules Chapter 62-814. Similarly, the Public Service Commission (PSC) has "exclusive jurisdiction to prescribe and enforce safety standards for transmission and distribution facilities of all public electric utilities." Section 366.04(6). The Legislature has expressly made the PSC's jurisdiction over such facilities "superior to that of all other boards, agencies, political subdivisions, municipalities, towns, villages, or counties." Section 366.04(1) and (6). But the exclusive jurisdiction of other agencies over those matters does not remove WMD's jurisdiction under its statutes and rules.
6/ Another difference is the nature of McIntyre's interest, but that goes to standing, not timeliness.
COPIES FURNISHED:
Frank R. Finch, Executive Director South Florida Water Management District 3301 Gun Club Road
Post Office Box 24680
West Palm Beach, Florida 33416-4680
Teresa Badillo
12280 Saint Simon Drive Boca Raton, Florida 33428
Frank S. Bartolone, Esquire
South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33406
Pam Danko
12686 Little Palm Lane Boca Raton, Florida 33428
Jose Gutman Amy Gutman
12643 Little Palm Lane Boca Raton, Florida 33428
Jeff Leserra
7200 Loxahatchee Road
Parkland, Florida 33067
John W. Little, Esquire Steel, Hector & Davis
1900 Phillips Pointe, West 777 South Flagler Drive
West Palm Beach, Florida 33401
Frank Longo
22742 Vistawood Way
Boca Raton, Florida 33428
Larry Rosenman
12340 Saint Simon Drive Boca Raton, Florida 33428
Ballard Smith
9230 13th Avenue Circle, Northwest Bradenton, Florida 34209
Mike Sturm
12274 Saint Simon Drive Boca Raton, Florida 33428
Donna Tennant
12596 Little Palm Lane Boca Raton, Florida 33428
Suzanne Terwilliger 12590 Little Palm Lane
Boca Raton, Florida 33428
David Weinstein
12840 Smith Dale Place Boca Raton, Florida 33428
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 06, 2003 | Mandate | |
| May 21, 2003 | Opinion | |
| Apr. 11, 2002 | Agency Final Order | |
| Feb. 27, 2002 | Recommended Order | Challenge to Water Management District was timely because filed within 21 days after actual notice; constructive notice ineffective. However, challenge dismissed because standing not proven. Alleged injuries either speculative or outside zone of interest. |
