97-000803 Judge Ray Gatlin And Gerra Gatlin vs. St. Johns River Water Management District And Department Of Transportation Status: Closed Recommended Order on Monday, July 14, 1997.

Summary: Failure to provide actual notice cured by subsequent constructive notice; time limits not tolled by equitable circumstances.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDGE RAY and GERRA GATLIN, )

)

Petitioners, )

)

vs. ) Case Nos. 97-0803

) 97-0804

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT and )

DEPARTMENT OF TRANSPORTATION , )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, these matters were heard on May 30,

1997, in Macclenny , Florida, by Donald R. Alexander, the assigned

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioners : J. Victor Barrios, Esquire

1026 East Park Avenue

Tallahassee, Florida 32301-1673

Susan K. S. Scarcelli, Esquire

Post Office Box 3399

Tampa, Florida 33601-3399

For Respondent : Nancy B. Barnard, Esquire

( SJRWMD) Post Office Box 1429

Palatka, Florida 32178-1429

For Respondent : Francine M. Ffolkes, Esquire

(DOT) Mary S. Miller, Esquire

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

The issues are whether respondents’ motions to dismiss the

amended petitions should be granted on the ground they were not

timely filed, or whether the time limitation for filing a request

for hearing was equitably tolled.

PRELIMINARY STATEMENT

These cases began on December 20, 1996, when petitioners,

Judge Ray and Gerra Gatlin, filed petitions with respondent, St.

Johns River Water Management District, seeking to contest the

issuance of two permits to respondent, Department of

Transportation. More specifically, Case No. 97-0803 involves a

challenge to the issuance of a management and storage of surface

waters permit issued on August 10, 1993, while Case No. 97-0804

involves a challenge to the issuance of a wetlands resource

management permit issued the same date.

On February 7, 1997, petitioners filed amended petitions

seeking to invoke the doctrine of equitable tolling because the

applications and notices allegedly contained "false and

misleading statements." Thereafter, motions to dismiss the

amended petitions were filed by respondents. The cases were

referred to the Division of Administrative Hearings on February

24, 1997, with a request that an Administrative Law Judge be

assigned to conduct a hearing. On March 20, 1997, the cases were

consolidated on the undersigned’s own motion.

By order dated April 21, 1997, a final hearing on the

motions to dismiss was scheduled on May 20, 1997, in Tallahassee,

Florida. The matters were continued on the undersigned’s own

motion to May 30, 1997, in Macclenny, Florida.

At final hearing, petitioners presented the testimony of

Peter M. Wallace, an environmental consultant and accepted as an

expert in wetland jurisdiction and wetland site assessment ; and

Judge Ray Gatlin. Also, they offered petitioners’ exhibits 1 and

3-8. All exhibits were received except exhibit 7. The

Department of Transportation presented the testimony of Keith E.

Couey, public involvement coordinator; James Knight, project

engineer; Van Humphreys, permit coordinator; Alex G. Paul, senior

right-of-way agent; and Debra S. Babb, senior attorney. Also, it

offered DOT exhibits 1-37. All exhibits were received except

exhibits 15-19. The St. Johns River Water Management District

presented the testimony of Patrick M. Frost, assistant director

of the department of resource management. Also, it offered

District exhibits 1-6. All exhibits were received in evidence.

Finally, the Department of Transportation's pending motion for

official recognition has been granted.

The transcript of hearing (two volumes) was filed on June

11, 1997. Proposed findings of fact and conclusions of law were

filed by the parties on June 20, 1997, and they have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Background

1. Petitioners, Judge Ray and Gerra Gatlin (petitioners or

Gatlins), own a parcel of real property in the central portion of

Baker County, Florida, generally located to the north of U. S.

Highway 90 between Glen St. Mary and Macclenny, Florida.

Respondent, St. Johns River Water Management District (District),

is the state agency charged with the responsibility of issuing

Water Resource Management ( WRM) and Management and Storage of

Surface Water ( MSSW) permits within its boundaries. Respondent,

Department of Transportation (DOT), is a state agency charged

with the responsibility of maintaining the state highway system.

2. On April 27, 1993, DOT filed two applications with the

District seeking MSSW and WRM permits for a road widening and

bridge replacement project on State Road 10, also known as U. S.

Highway 90, in Baker County. After notices of receipt of

application and intent to grant the applications were published

in a local newspaper on June 3 and July 22, 1993, respectively,

and no requests for a hearing were received, the District issued

the two permits on August 10, 1993.

3. On December 20, 1996, or 1,216 days after the permits

had been issued, petitioners filed their petitions for

administrative hearing to contest the issuance of the permits.

The petition challenging the MSSW permit has been assigned Case

No. 97-0803 while the challenge to the issuance of a WRM permit

has been assigned Case No. 97-0804. As amended on February 10,

1997, the petitions generally allege that the Gatlins were not

given actual notice of the WRM application as required by a

District rule, DOT supplied inaccurate or false information in

the applications as to the ownership of the property on which a

portion of the work was to be performed, and the District's

notice was confusing and misleading. Because of this, they

contend the time limitation for challenging the permits was

equitably tolled. Motions to dismiss the amended petitions on

the ground they are untimely have been filed by the District and

DOT, and they are the subject of these proceedings.

B. Events Prior to Issuance of the Permits

4. As early as 1990 or 1991, the DOT began planning for

certain improvements to State Road 10 from County Road 125 in

Glen St. Mary, Florida, east to State Road 121 in Macclenny,

Florida. The work involved the widening of the road from two to

four lanes and replacing an existing bridge. Excluding the work

within the two municipalities, the total length of the project

was less than two miles.

5. On April 23, 1991, the DOT sent all property owners

along U. S. Highway 90 a letter advising that a public meeting

would be held on May 16, 1991, to discuss the proposed

improvements. Although DOT records indicate that petitioners

were on the mailing list, petitioners deny that they ever

received a letter. In addition to a personal letter to each

owner, notice of the meeting was published in a local newspaper.

6. Another meeting with owners of property adjacent to

U. S. Highway 90 was held on August 13, 1992, concerning the

proposed project. Although a letter was sent to all property

owners on July 21, 1992, advising that such a meeting would be

held, petitioners deny that they ever received one. A notice of

the meeting was also published in a local newspaper.

a. The MSSW permit

7. On April 23, 1993, DOT filed with the District an

application, with various attachments, seeking the issuance of a

MSSW permit. If approved, the permit would authorize DOT to

construct surface water works, including the treatment of

stormwater runoff by wet detention ponds, on an approximately

eleven acre site. The application described the project as

follows:

The proposed facility typical section will be

a four-lane roadway with a center turn lane

through Glen St. Mary and unincorporated

Baker Co. [T ]hrough Macclenny, the typical

section will be a two-lane roadway with a

center turn lane.

8. It further described the location of the project as

follows:

The segment of SR 10 (US 90) presented in

this application begins approximately 500

feet west of the intersection of SR 10 and CR

125 and runs east to the intersection of SR

10 and SR 121. The project is located in

Section 36, Township 2 south, and Range 21

east and Sections 31 and 32, Township 2

south, and Range 22 east in Baker County.

9. In answer to a question regarding who owned the works to

be constructed, DOT identified itself as the owner. The

application did not require, however, that an applicant certify

that it was the present owner of the property on which the

proposed works were to be constructed. In fact, DOT followed its

standard practice of not filling in the areas on the application

form that asked for "Project Acreage" and "Total Acreage Owned"

because it did not know exactly how much property it would need

to acquire through exercise of its power of eminent domain until

the District had approved the design of the proposed surface

water works. It was clear, however, that DOT had the ability and

intention to acquire whatever property was needed through eminent

domain proceedings.

10. Attached to the application were certain sketches.

They did not depict the storm detention pond which was to be

built on the Gatlins' property.

11. Under an applicable District rule and statute, the

District was required to give actual notice of the application

only to persons who had previously filed a written request for

such notice. Because petitioners had not made such a request,

they were not given actual notice. In the absence of a written

request, the statute allows constructive notice of the agency’s

intended action to be provided by publication in a newspaper of

general circulation in the county in which the work is to be

performed. The specific requirements for this notice are found

in Rule 40C-1.511(5), Florida Administrative Code. They include

"a brief description of the proposed activity and its location,"

"location of the application," "statement of the District's

intended action," "scheduled date of Board action," and

"notification of administrative hearing opportunity."

12. On July 22, 1993, the District published notice of its

intended agency action in The Baker County Press , a weekly

newspaper of general circulation published in Macclenny, Florida.

The notice read, in pertinent part, as follows:

The District gives notice of its intent to

issue a permit to the following applicant on

August 10, 1993:

FLORIDA DEPARTMENT OF TRANSPORTATION, P. O.

Box 1089, Lake City, Fla., 32056, application

#4-003-0010AG. The project is located in

Baker County, Sections 31, 32 & 36, Township

02 South, Ranges 21 & 22 East. The

application is for the CONSTRUCTION OF A

SURFACE WATER MANAGEMENT SYSTEM ASSOCIATED

WITH THE WIDENING OF SR 10 (U.S. 90) FROM CR

125 TO SR 121. The receiving waterbody is

the St. Mary's River.

The file containing the above-listed

application is available for inspection

Monday through Friday except for legal

holidays, 8:00 am to 5:00 pm at the St. Johns

River Water Management District headquarters

or the appropriate field office. The

District will take action on the permit

application listed above unless a petition

for an administrative hearing is filed

pursuant to the provisions of section 120.57,

F.S., and section 40C-1.511. A person whose

substantial interests are affected by the

District’s proposed permitting decision

identified above may petition for an

administrative hearing in accordance with

section 120.57, F.S. Petitions must comply

with the requirements of Florida

Administrative Code Rules 40C-1.111 and 40C-

1.521 and be filed with (and received by) the

District Clerk, P.O. Box 1429, Palatka,

Florida 32178-1429. Petitions must be filed

within fourteen (14) days of publication of

this notice or within fourteen(14) days of

actual receipt of this intent, whichever

occurs first. Failure to file a petition

within this time period shall constitute a

waiver of any right such person may have to

request an administrative determination

(hearing) under Section 120.57, F.S.,

concerning the subject permit application.

Petitions which are not filed in accordance

with the above provisions are subject to

dismissal.

Thus, the notice provided a brief description of the project and

its location, the location of the application, the District's

intended action, the scheduled date of Board action, and

notification as to the right of a hearing.

13. Although petitioners acknowledge that they never read

the notice, they contend that, even if they had read it, the

notice was nonetheless misleading and confusing in several

respects. First, they point out that the legal notice identified

the receiving waterbody as the St. Mary's River. The

application, however, identified the receiving water as the South

Prong St. Mary's River whereas the technical report of the

District staff identified the receiving water as the Little St.

Mary's River. The South Prong St. Mary's River and the Little

St. Mary's River are the same river, and it eventually flows into

the St. Mary's River approximately six miles north of

petitioners' property. Therefore, the notice is technically

correct since the larger St. Mary's River is the ultimate

receiving water for the smaller tributary. Even if the notice

was in error in this respect, however, for the reasons cited

below, the error was immaterial and would not mislead or confuse

readers.

14. The notice provides further clarification on the

project's location by stating that the project encompasses the

"construction of a surface water management system associated

with the widening of SR 10 (U.S. 90) from CR 125 to SR 121."

This clearly alerts the reader that the project is on or near

U. S. Highway 90 between Glen St. Mary and Macclenny, a short

stretch of road less than two miles in length. Given this

description, a reasonable person would not assume that the work

would take place on the St. Mary's River, six miles to the north,

as petitioners suggest.

15. Petitioners also point out that the notice identified

the location of the project as "Sections 31, 32 & 36, Township 02

South, Ranges 21 & 22 East," an area petitioners say encompasses

some 1,900 acres of land. Because the MSSW project will actually

involve only 11 acres of land, they contend the notice is

misleading. Although the notice identifies three sections, and

each section is one square mile, the notice alerts the reader

that the project will be confined to the "widening of S. R. 10

(U. S. 90)" between Glen St. Mary and Macclenny, a relatively

short stretch of roadway. Finally, the notice provided that a

copy of the application was on file at the "appropriate field

office" of the District should any member of the public desire

more detailed information.

16. Petitioners' property lies within Sections 31 and 36

and would therefore be affected by the application. Although

they reside in Baker County, petitioners did not subscribe to The

Baker County Press , and therefore they did not read the legal

advertisement. Accordingly, a request for a hearing was not

filed by petitioners by the August 10 deadline.

17. When no requests for a hearing were filed within the

fourteen day time limitation, the District took final agency

action on August 10, 1993, and issued MSSW permit number

4-003-0010G.

b. The WRM permit

18. On April 27, 1993, DOT filed with the District an

application, with attachments, seeking the issuance of a WRM

permit. If approved, the permit would authorize the excavation

and filling (dredging and filling) associated with the bridge

replacement over the Little St. Mary's River, also known as the

South Prong St. Mary's River, midway between Glen St. Mary and

Macclenny on U. S. Highway 90. The dredge and fill project

encompasses approximately one-half acre of land.

19. The WRM application contained the same description and

location of the project as did the MSSW permit application.

20. Question 14 on the application form required an

applicant to certify as to ownership of the property. The

applicant could either indicate that it was the record owner of

the property on which the proposed project was to be undertaken,

or it could indicate that it was not the record owner, but it

intended to have the requisite ownership before undertaking the

proposed work. DOT checked off the box which indicated that it

was the record owner. At hearing, a DOT representative agreed

that this was an incorrect response since around 8,953 square

feet of the land on which the dredging and filling would take

place was then owned by petitioners. In hindsight, the DOT

witness says he probably should have checked off both boxes since

DOT owned most of the property and would acquire the remaining

part through eminent domain proceedings before the project began.

Acquisition of the land was clearly within DOT's power and

authority. There is no evidence that DOT provided the

information with the intent of misleading the District, or that

the ownership information affected the District's decision.

21. In 1988, the Department of Environmental Regulation

(DER), now known as the Department of Environmental Protection,

delegated its dredge and fill permitting authority to water

management districts. In carrying out that delegation of

authority, the districts were required to follow all applicable

DER rules. One such rule, Rule 62-312.060(12), Florida

Administrative Code, required that the District forward a copy of

the application to and request comments from the adjacent

waterfront property owners unless the number of owners was so

extensive that personal notice was impractical. Petitioners own

adjacent waterfront property, and it was not shown that the

number of waterfront owners was so extensive that personal notice

was impractical.

22. To implement the above rule, question 5 on the

application form required the applicant to identify all adjacent

waterfront owners. DOT answered "See Attachment." At hearing,

the individual who prepared the application "believed" that a

list was attached to the application when it was filed with the

District, but he could not locate a copy of the list in his file.

23. The application was the first dredge and fill permit

application for Baker County processed by the District. When the

application was received by the District, a clerical employee

reviewed the application to determine if it was complete. If an

item was missing, the clerk was instructed to note the missing

item on an "initial checkoff sheet." In this case, a "very, very

cursory look" was made, and no box on the checkoff sheet was

marked. This would indicate that the list was attached to the

application. After this review was made, the application was

sent to the technical staff for review.

24. Whether the attachment was ever received by the

District, and then lost or misplaced, is conjecture. In any

event, a District witness acknowledged that there may have been a

"mix-up" during the initial review. Because the District had no

attached list, it gave no actual notice to adjacent owners,

including petitioners, prior to publication of the notice.

Therefore, the rule requiring actual notice on this type of

application was not satisfied. Except for this instance, the

District is unaware of any other occasion when a list of adjacent

waterfront property owners, through inadvertence, was lost or not

provided.

25. On July 22, 1993, the District published notice of its

intent to issue a permit in The Baker County Press . The notice

read, in pertinent part, as follows:

The District gives notice of the Intent to

Issue a permit to the following applicant on

August 10, 1993:

FLORIDA DEPARTMENT OF TRANSPORTATION, P. O.

Box 1089, Lake City, Fla., 32056, application

#4-003-0010AG. The project is located in

Baker County, Sections 31, 32 & 36, Township

02 South, Ranges 21 & 22 East. The

application is for EXCAVATION AND FILLING

ASSOCIATED WITH THE WIDENING OF SR 10 (U.S.

90) FROM CR 125 TO SR 121. The receiving

waterbody is the St. Mary's River.

The file pertaining to the above-listed

application is available for inspection

Monday through Friday except for legal

holidays, 8:00 am to 5:00 pm at the St. Johns

River Water Management District headquarters

or the appropriate field office. The

District will take action on the permit

application listed above unless a petition

for an administrative proceeding (hearing) is

filed pursuant to the provisions of section

120.57, F.S., and section 40C-1.511, F.A.C.

A person whose substantial interests are

affected by the District’s proposed

permitting decision identified above may

petition for an administrative hearing in

accordance with the requirements of Florida

Administrative Code Rules 40C-1.111 and

40C-1.521 and be filed with (received by) the

District Clerk, P.O. Box 1429, Palatka,

Florida 32178-1429. Petitions for

administrative hearing on the above

application must be filed within fourteen

(14) days of publication of this notice or

within fourteen (14) days of actual receipt

of this intent, whichever first occurs.

Failure to file a petition within this time

period shall constitute a waiver of any right

such person may have to request an

administrative determination (hearing) under

section 120.57, F.S., concerning the subject

permit application. Petitions which are not

filed in accordance with the above provisions

are subject to dismissal.

Thus, the notice provided a brief description of the project and

its location, the location of the application, the District's

intended action, the scheduled date of Board action, and

notification of hearing opportunity.

26. Even though they did not read the notice, petitioners

contend that it was "confusing and misleading to any readers."

First, they point out that the legal notice identifies the

receiving water as the St. Mary's River. Both the application

and technical report of the District staff, however, identified

the receiving water as the South Prong St. Mary's River. The

South Prong St. Mary's River flows north and south and crosses

under U. S. Highway 90 at the bridge replacement site. It

eventually flows into the St. Mary's River, which is

approximately six miles further north and forms the boundary

between Florida and Georgia in that area. Therefore, the notice

was technically correct since the St. Mary's River is the

ultimate receiving water from the smaller tributary. Even if the

notice erred in this respect, the error was immaterial and would

not mislead the reader. This is because the cited sections,

township, ranges and road being improved are all at least five

miles south of the St. Mary's River, and thus the notice could

not lull readers into believing that the project would actually

be closer to that river, some six miles to the north.

27. Petitioners also point out that, even though the dredge

and fill project encompasses only one-half acre, the notice

identifies the project as being located in Sections 31, 32, and

36, Township 2 South, Ranges 21 and 22 East, a tract of some

1,900 acres. These sections, township and ranges are the same

ones included in the legal description of the then existing

right-of-way for U. S. Highway 90 owned by DOT and which was

attached to the application. While it is true that each section

is one square mile, the actual work site within the sections was

narrowed considerably by advice that the work would be

"associated with the widening of SR 10" between Glen St. Mary and

Macclenny. Given this information, a prudent person owning land

on U. S. Highway 90 between the two municipalities would be

alerted that the project might well impact his property.

Finally, the notice provided that a copy of the application was

on file for review if any member of the public desired more

specific information.

28. As a corollary to the above argument, petitioners

contend that the notice implies that dredge and fill work will

only be performed on DOT's existing right-of-way since the

sections, township and ranges track the legal description of

DOT's right-of-way along U. S. Highway 90. Again, however, only

a "brief description" of the project's location is required, and

the above description in the notice satisfies this requirement.

29. Although petitioners reside in Baker County, they did

not subscribe to the local newspaper, and therefore they did not

read the legal advertisement. Accordingly, they did not file a

request for a hearing.

30. When no requests for a hearing were received within

fourteen days after publication of the notice, on August 10,

1993, the District issued WRM permit number 12-003-0001G.

C. Events After Issuance of the Permits

31. On September 22, 1994, DOT sent to petitioners, by

certified mail, a Letter of Notification regarding DOT's

intention to acquire the interest in eight parcels of the

Gatlins' property for the road improvement project. The letter

was received by Gerra Gatlin on September 23, 1994.

32. While the letter did not specifically state that a

detention pond and bridge replacement project would be built on

the Gatlins' property, it explained that DOT was currently

planning the construction of a "highway facility" on State Road

10 and that its records indicated that petitioners owned property

within the area which was needed for right-of-way on this

project. The letter went on to describe the project in general

terms, and it referenced parcel 140 which was owned by the

Gatlins. On a separate parcel information sheet attached to the

letter, parcel 140 was divided into three parcels: 140A, 140B,

and 140C. The sheet noted that parts B and C were designated as

"water storage" areas. Parcel 140B is 10.727 acres in size and

will hold the stormwater detention pond currently being

constructed by DOT. A portion of the dredge and filling related

to the bridge replacement project will occur on parcel 140C.

33. Ray Gatlin acknowledged that he became aware of a

"pond" when he initially reviewed the packet, but he was not sure

in which part of parcel 140 the pond would be located since the

"printing was off" on the drawings, and he could not find parcel

140C. Therefore, he immediately hired a Jacksonville attorney,

Robert S. Yerkes, to represent him and his wife in the

condemnation matter.

34. On October 31, 1994, Yerkes sent a letter to DOT

requesting a copy of "the current right way map and construction

plans, as well as the present schedule for aquisition and

construction." On November 17, 1994, DOT sent Yerkes the

right-of-way maps but noted that "[c]onstruction plans are still

not available." Whether Yerkes requested the construction plans

after that date is not of record.

35. On May 22, 1995, a DOT right-of-way specialist met with

Yerkes and Ray Gatlin regarding the acquisition of the Gatlins’

property.

36. On July 19, 1995, DOT initiated an action in eminent

domain against petitioners, and several other landowners, by

filing a petition in the Circuit Court of Baker County. Among

other things, the petition sought to condemn parcels 140A, 140B,

and 140C owned by petitioners. An Order of Taking was entered by

the court on September 6, 1995, which conveyed fee simple title

of parcel 140, and its parts, to DOT.

37. When Yerkes "didn’t get the job done," the Gatlins

hired new counsel, who made an appearance on July 31, 1996. Just

prior to the appearance of new counsel, and because of "a problem

with the assessment," the Gatlins hired an environmental

consultant, Peter M. Wallace, to verify whether DOT had correctly

told them that no jurisdictional wetlands existed within the

parcel being condemned. At this time, the Gatlins were in a

dispute with DOT over the value of their property.

38. After determining that wetlands existed on the parcel,

Wallace made inquiry in late July 1996 with a District employee,

Christine Wentzel, to ascertain if any permits had been issued to

DOT for a project on U. S. Highway 90 between Glen St. Mary and

Macclenny. Wentzel was unaware of any permits being issued, but

she referred Wallace to Helen Cortopassi, who would have reviewed

the applications three years earlier. Cortopassi told Wallace

that no permits relating to this project had been issued.

39. Because Wallace believed that the storm detention pond

would impact wetlands, and therefore required a review by DER or

the United States Army Corps of Engineers, he made similar

inquiries with those two agencies regarding the issuance of

permits. He was assured that those two agencies had not issued

permits.

40. In late September 1996, Cortopassi telephoned Wallace

and advised him that a further review of her files revealed that

two permits had been issued for the project. Because Wallace had

inquired about permits for a project on U. S. Highway 90, and

Cortopassi had created a file for the project under State Road 10

(rather than U. S. Highway 90), she had failed to discover them

when Wallace first made his inquiry two months earlier.

41. On October 15, 1996, Wallace went to the DOT office and

reviewed its files pertaining to the project. He found copies of

the issued permits and a set of construction plans which revealed

a pond. A public records request filed by the Gatlins' counsel

with DOT in September 1996 was later granted, and copies of the

applications were eventually obtained from DOT on December 9,

1996, or almost three months after the request was made. Within

fourteen days thereafter, or on December 20, 1996, the Gatlins

filed their initial requests for a hearing.

42. DOT did not begin work on the project until March 1997,

or some three months after the requests for hearing were filed.

Photographs received into evidence show that, in April 1997, some

excavation work was being done around the bridge site. Work has

continued during the pendency of this proceeding.

43. At least a small portion of the storm detention pond

will be built in wetlands. The District made no review of the

wetlands impact associated with the pond. Had this been done, a

disclosure of the pond in the dredge and fill permit application

would have been required. Petitioners contend that, if actual

notice of the WRM had been given, as required by rule, and a

wetlands impact performed, in this way they would have had actual

notice of the MSSW application by simply reviewing the WRM

application. The District contends, however, that the content

and manner of notice would not have changed.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Section 120.57(1), Florida Statutes.

45. Petitioners raise several arguments in opposition to

the motions. First, they assert that they were entitled to due

process of law with regard to the notice of the permits. By

failing to give actual notice of the application, and

subsequently failing to grant them a hearing, petitioners contend

that their due process rights under both the Constitution of

Florida and the United States were violated. As to this

contention, it is preserved in the record for review by an

appellate court if appropriate. Second, they argue that DOT does

not have a validly issued dredge and fill permit for the project

because the legal description contained in the application is

inaccurate. This contention, however, does not relate to the

issue of whether the requests for hearing were timely filed, and

accordingly it has been disregarded. Third, petitioners argue

that the District did not follow an applicable rule in issuing a

dredge and fill permit. More specifically, they point out that

DOT failed to attach to its WRM application a list of adjacent

waterfront property owners, and that the District in turn failed

to provide them with actual notice, as required by Rule 62-

312.060(12). They add that an agency is, of course, obligated to

follow its own rules, and no subsequent constructive notice could

cure this defect. Fourth, they contend that the information

contained in the permit applications and constructive notices

demonstrates that they were never provided a point of entry. In

other words, they argue that because the notices were so broad

and misleading, they could not put them on notice that their

property might be affected by the project. Finally, petitioners

assert that the information provided in the permit applications

and constructive notices, together with the subsequent conduct of

the DOT and District, constitute equitable tolling of their point

of entry. Specifically, petitioners suggest that they were

misled or lulled into inaction by the "false and misleading

information" contained in the two applications and notices, the

inability of their counsel to get information from DOT in 1994,

the incorrect representations of District representatives in July

1996, and the subsequent inability of their counsel to obtain

copies of requested documents from DOT until December 1996.

46. In 1993, the notice requirements for the issuance of a

MSSW permit were found in Section 373.116(2), Florida Statutes

(1993). That section required that

[u] pon receipt of an application for a permit

. . . the governing board shall cause a

notice thereof to be published in a newspaper

having general circulation within the

affected area. In addition, the governing

board shall send, by regular mail, a copy of

such notice to any person who has filed a

written request for notification of any

pending applications affecting this

particular designated area.

A similar requirement was also found in Section 373.413(3) and

(4), Florida Statutes (1993), which governed the issuance of

permits for construction or alteration of stormwater management

systems. Because petitioners had never "filed a written request

for notification of any pending applications affecting" their

property, only notice by publication was required.

47. Rule 40C-1.511(5), Florida Administrative Code,

requires that when notice is provided by publication, it shall

contain, as a minimum:

(a) name of applicant and a brief description

of the proposed activity and its location;

(b) location of the application and its

availability;

(c) statement of the District's intended

action;

(d) scheduled date of Board action, if such

action is necessary; and

(e) notification of administrative hearing

opportunity.

48. The notice pertaining to the MSSW permit published on

July 22, 1993, satisfied all parts of the rule since it contained

the name of the applicant, a brief description of the proposed

activity and its location, a statement of the District's intended

action, the scheduled date of Board action, and notification of

the right to an administrative hearing.

49. As to the WRM permit, Section 403.815, Florida Statutes

(1993), also authorized constructive notice of the District's

intended action. While containing no specificity regarding the

description of the project, the statute allowed DER to specify

the format and size of the notice. Like Rule 40C-1.511(5), DER

Rule 62-312.150(2)(c), Florida Administrative Code, requires that

the notice contain the name of the applicant and a brief

description of the proposed activity and its location, location

of the application and its availability, the intended action, and

notice of right to a hearing.

50. Here, the District's notice of intended action

regarding the WRM permit satisfied both the statute and rule

since it contained the name of the applicant and a brief

description of the project and its location, the location of the

application and its availability, the District's intended action,

and a notice of right to a hearing.

51. Petitioners did not read the notices. Even so,

petitioners essentially contend that reading them would have been

a futile exercise since they were "misleading" and did "not

really describe either the property or the affected parties in a

manner in which any average person could understand." For the

reasons cited in findings of fact 12-15 and 26-28, however, the

notices are determined to be in compliance with the rule, and

they are not confusing or misleading. Even if an error occurred,

it was immaterial. Compare H & H Land Clearing, Inc. v. C & D

Recycling Corp., et al , 1994 WL 739240 (Dep't Env. Prot., Dec. 9,

1994)(inaccurate township reference in notice was immaterial and

did not constitute ground to waive point of entry). Therefore,

the contention that petitioners were effectively denied a point

of entry by virtue of the deficient notices is deemed to be

unavailing.

52. Petitioners next contend that the District violated the

requirement in Rule 62-312.060(12), Florida Administrative Code,

which required that they be provided personal notice. That rule

provides, in pertinent part, as follows:

(12) The (District) shall forward a copy of

the application to and request comments from

the adjacent waterfront property owners,

unless the number of adjacent waterfront

property owners is so extensive that personal

notice is impractical. In those cases, the

(District) shall require the applicant to

publish either the Notice of Application or

the Notice of Proposed Agency Action on

Permit Application pursuant to Rule 62-

103.150, Florida Administrative Code.

This rule should be distinguished from Section 403.815 and Rule

40C-1.511 since it simply requires that a copy of the application

be given each adjacent waterfront property owner, but it does not

require that notice of the District's intended action be given by

personal notice. Rather, notice of intended action is

accomplished by constructive notice. The rule also provides that

whenever their number is so extensive as to make personal notice

"impractical," adjacent waterfront property owners are not

entitled to a copy of the application. Under those

circumstances, constructive notice is all that is required.

53. It is undisputed that the requirements of the rule were

not satisfied. This is because petitioners are "adjacent

waterfront property owners," and there was no showing by

respondents that "the number of adjacent waterfront property

owners (was) so extensive that personal notice (was)

impractical." Even so, respondents contend that by subsequently

publishing a notice, any defects in the process were cured. In

doing so, they rely upon the case of Carver et al v. South Fla.

Water Mgmt. Dist. et al , 12 F.A.L.R. 2822 (DER, June 15, 1990),

which also involved an untimely appeal. In Carver , petitioners

filed an amended petition for hearing with DER under Rule 17-

312.060(12) (now renumbered as 62-312.060) challenging the

issuance of a permit to construct a control structure in Palm

Beach County 234 days after publication of the DER's notice of

intent. Among other things, petitioners contended that they were

entitled to actual notice of the application under the cited

rule. In rejecting the petition as being untimely, DER noted

that petitioners had failed to allege that they were adjacent

waterfront property owners so as to qualify for actual notice,

and even if they were, "any defect in notice was cured by the

subsequent publication of notice." Id . at 2824. Petitioners

have cited no authority to the contrary, but simply argue that

reliance on the Carver case is misplaced because the petitioners

in Carver also relied on economic injury, not found here, and

they did not allege that they owned waterfront property. The

case, however, is directly on point, it is found to be

persuasive, and it should be followed. Therefore, the Distict's

failure to follow the rule requiring actual notice was cured by

its subsequent publication of notice.

54. Finally, petitioners contend that due to a variety of

circumstances, the time for requesting a hearing was equitably

tolled. Because of this contention, a hearing was held to

determine whether petitioners' claims justify application of the

doctrine of equitable tolling. See, e.g., Castillo v. Dep't of

Admin., Div. of Retirement , 593 So. 2d 1116, 1117 (Fla. 2d DCA

1992)(factfinding hearing appropriate where doctrine raised).

Because the fourteen-day time limitation is nonjurisdictional, it

is subject to equitable considerations such as tolling. State

Dep't of Env. Reg. v. Puckett Oil , 577 So. 2d 988, 992 (Fla. 1st

DCA 1991).

55. The doctrine of equitable tolling has been applied

"when the plaintiff has been misled or lulled into inaction, has

in some extraordinary way been prevented from asserting his

rights, or has timely asserted his rights mistakenly in the wrong

forum." Machules v. Dep't of Admin. , 523 So. 2d 1132, 1134 (Fla.

1988). It is used in the interest of justice to accommodate both

an agency's right not to be called upon to defend a stale claim,

and a plaintiff's right to assert a meritorious claim when

equitable circumstances have prevented a timely filing. Id . at

1134.

56. Here, petitioners did not file their claim in the wrong

forum, and they have not contended that "in some extraordinary

way" they have been prevented from asserting their rights.

Instead, they contend that they were misled or lulled into

inaction by various acts of the District and DOT. These include

"false and misleading" information contained in the applications

and notices, the inability of DOT to provide their counsel with

construction plans in October 1994, inaccurate information

pertaining to the issuance of permits in July 1996, and an almost

three-month delay by DOT in responding to a public records

request in October 1996.

57. As to the "false and misleading" information in the

applications regarding the ownership of the property, the Gatlins

do not explain how this misled or lulled them into inaction.

Even so, the evidence shows that DOT checked the box indicating

it was the owner since it intended to acquire the property before

the project was built, and the "false and misleading" information

did not affect the District's decision on the permits.

Accordingly, it is concluded that this information did not

"mislead or lull" the Gatlins into inaction.

58. As noted earlier, the notices published by the District

complied with all applicable rules and statutes governing

constructive notice. Even if they were deficient in any respect,

such errors were immaterial and did not mislead or confuse the

readers so as to lull them into inaction. See H & H Land

Clearing, Inc. , supra.

59. Similarly, the unsuccessful efforts by the Gatlins'

counsel in October 1994 to obtain from DOT construction plans for

the project do not constitute equitable circumstances so as to

toll the time for filing a request for a hearing. By that time,

the Gatlins were on notice that DOT intended to utilize two parts

of parcel 140 for "water storage," and Ray Gatlin conceded that

he knew that a pond would be constructed on his property, but he

wasn't sure of its exact location.

60. The District admittedly gave inaccurate information to

the Gatlins' agent in July 1996 regarding the issuance of

permits, but it gave correct information two months later. This

occurred three years after the initial point of entry had been

offered, and long after the Gatlins were on notice that DOT's

project would impact their property. The same conclusion must be

reached with respect to the short delay by DOT in responding to a

public records inquiry in the fall of 1996.

61. Because there are no equitable circumstances that would

warrant the tolling of the time limitations for requesting a

hearing, the Gatlins' request that the doctrine of equitable

tolling be invoked is hereby denied.

62. Finally, citing Symons v. Dep't of Banking and Finance ,

490 So. 2d 1322 (Fla. 1st DCA 1986), DOT argues alternatively

that petitioners were under a duty of reasonable inquiry since

they had the means to obtain knowledge under the circumstances

reasonably suggesting the need for an inquiry. In other words,

DOT contends that even if some equitable circumstances exist, or

a rule was not followed, these circumstances and omission are

negated by the fact that the Gatlins failed to exercise due

diligence in making an inquiry with the District or DOT. In

Symons , the court held that:

[i]mplied actual notice is inferred from the

fact that a person had the means of knowledge

and the duty to use them but did not. It is

based on the premise that a person has no

right to shut his eyes or ears to avoid

information and then say he had no notice; it

will not suffice the law to remain willfully

ignorant of a thing readily ascertainable

when the means of knowledge is at hand.

Id . at 1124.

63. Here, petitioners had actual notice of the project in

1994 when DOT sent a right-of-way acquisition packet informing

them that certain parcels of their property would be acquired as

a part of a road widening project. Ray Gatlin acknowledged that

he knew a pond would be constructed on parcel 140, but he did not

know on which part of the parcel it would be located. He also

met with a DOT representative in 1995 regarding the eminent

domain action. With this "means of knowledge at hand," and given

the fact that he knew DOT was widening U. S. Highway 90, which

was adjacent to his property, it was unreasonable not to make

further inquiry with the District until July 1996 to asertain if

any permits were being issued in conjunction with the project.

Under these circumstances, it is concluded that petitioners were

under a duty of reasonable inquiry, and by failing to do so, they

have waived their right to a hearing.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that the St. Johns River Water Management

District enter a final order granting the motions to dismiss and

dismissing the amended petitions for hearing in Case Nos. 97-0803

and 97-0804 with prejudice.

DONE AND ENTERED this 14th day of July, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone] , SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of July, 1997.

\\

COPIES FURNISHED:

Henry Dean, Executive Director

St. Johns River Water Management District

Post Office Box 1489

Palatka, Florida 32178-1489

J. Victor Barrios, Esquire

1026 East Park Avenue

Tallahassee, Florida 32301-1673

Susan K. S. Scarcelli, Esquire

Post Office Box 3399

Tampa, Florida 33601-3399

Nancy B. Barnard, Esquire

Post Office Box 1429

Palatka, Florida 32178-1429

Francine M. Ffolkes, Esquire

Mary S. Miller, Esquire

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this

Recommended Order within fifteen days. Any exceptions to this

Recommended Order should be filed with the St. Johns River Water

Management District.