99-001180 Town Of Indian River Shores vs. Horse`s Head, Ltd., And St. Johns River Water Management District Status: Closed Recommended Order on Monday, June 7, 1999.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDNA C. WIELER, )

)

Petitioner, )

)

vs. ) Case No. 99-1179

)

HORSE'S HEAD, LTD., as permit )

applicant, and ST. JOHN'S WATER )

MANAGEMENT DISTRICT, as permit )

authority, )

)

Respondents. )

__________________________________)

TOWN OF INDIAN RIVER SHORES, )

)

Petitioner, )

)

vs. ) Case No. 99-1180

)

HORSE'S HEAD, LTD., as permit )

applicant, and ST. JOHN'S WATER )

MANAGEMENT DISTRICT, as permit )

authority, )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, an evidentiary hearing on Respondents'

Motions to Dismiss was conducted in this cause on May 14, 1999,

at Tallahassee, Florida, before J. D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioners: Timothy P. Atkinson, Esquire

Kenneth G. Oertel, Esquire

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

301 South Bronough Street

Fifth Floor

Post Office Box 1110

Tallahassee, Florida 32302-1110

For Respondent, Horse's Head, Ltd.:

William L. Hyde, Esquire

Gunster, Yoakley, Valdes-Vauli

& Stewart, P.A.

215 South Monroe Street, Suite 830

Tallahassee, Florida 32301

For Respondent, St. Johns River Water Management District:

Mary Jane Angelo, Esquire

Charles A. Lobdell, III, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178-1429

STATEMENT OF THE ISSUES

Whether the Petitions for Formal Administrative Proceeding

should be dismissed.

PRELIMINARY STATEMENT

This case began on March 5, 1999, when the Petitioners,

Edna C. Wieler and the Town of Indian River Shores, filed

Petitions for Formal Administrative Proceeding with the

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

Such petitions sought to challenge the proposed agency action for

permit application no. 4-061-0164A-ERP. The permit applicant,

Horse's Head, LTD., is a Respondent in the instant action.

Essentially, the Petitioners challenge the District's

approval of the applicant's request for an environmental resource

permit (ERP) which would allow the development of approximately

2.66 acres of wetland for residential lots. In response to the

petitions, the applicant and the District submitted motions to

dismiss and alleged that they were untimely filed.

On April 12, 1999, the parties were afforded a telephone

conference call within which to argue the law as to Respondents'

motions. Because of unresolved issues of fact related to the

requests, the matter was scheduled for an evidentiary hearing for

May 14, 1999.

In conjunction with the evidentiary hearing the parties

filed a Stipulation of Facts which reduced the factual matters to

be reviewed. Pertinent facts from such stipulation are

incorporated below.

At the hearing, the District presented testimony from Mark

Gronceski, an environmental specialist employed by the District,

and Jeffrey Elledge, the director for resource management for the

District. Its exhibits numbered 1, and 8 through 21 were

admitted into evidence. The applicant adopted the presentation

of the District and the stipulation submitted by the parties.

Petitioners offered no evidence.

A transcript of the proceeding has not been filed. The

parties have previously submitted written argument on the

issues.

FINDINGS OF FACT

1. In July of 1997 a notice of an application for an

environmental resource permit (ERP) was issued in conjunction

with a project identified as 4-061-0164A-ERP. This project

proposed to develop six single-family homesites and required the

filling of 5.79 acres of wetlands.

2. The project was reviewed by the permitting authority,

the District, and was recommended for approval.

3. On February 20, 1998, the District sent a written notice

of Intended District Decision on permit application 4-061-0164A-

ERP to interested persons. Such persons include those who have

requested notice of all District ERP projects or those who have

requested notice of District ERP projects by county which, in

this instance, is Indian River County.

4. Additionally, on February 25, 1998, a notice of the

District's intended agency action appeared in a newspaper

published at Vero Beach, Indian River County, Florida. Such

notice provided, in pertinent part:

The District gives notice of its intent to

issue a permit to the following applicant(s)

on March 10, 1998:

HORSE'S HEAD, LTD. ATTN: CHARLES M. BAYER,

JR., 1 JOHN ISLAND DRIVE, VERO BEACH, FL

32963, application #4-0610164A-ERP. The

project is located in Indian River County,

Section 13, Township 32 South, Range 39 East.

The ERP application is for CONSTRUCTION OF

FIVE RESIDENTIAL LOTS, WHICH WILL RESULT IN

THE FILLING OF 5.79 ACRES OF MANGROVE SWAMP

WITHIN THE EXISTING JOHN'S ISLAND DEVELOPMENT

(LTVC PROPERTY). The receiving waterbody is

the INDIAN RIVER LAGOON

* * *

The District will take action on each permit

application listed above unless a petition

for administrative proceeding (hearing) is

filed pursuant to the provisions of sections

120.569 and 120.57, F.S., and section 40C-

1.511, F.A.C. A person whose substantial

interests are affected by any of the

Districts [sic] proposed permitting decisions

identified above may petition for an

administrative hearing in accordance with

sections 120.569 and 120.57, F.S. or all

parties may reach a written agreement on

mediation as an alternative remedy under

section 120.573. Choosing mediation will not

adversely affect the right to a hearing if

mediation does not result in a settlement.

The procedures for pursuing mediation are set

forth in section 120.573, Florida Statutes,

and rule 28-106.111 and 28-106.401-.405

Florida Administrative Code. Petitions must

comply with the requirements of Florida

Administrative Code Rule 40C-1.521 and be

filed with (received by) the District Clerk,

located at District Headquarters, Highway 100

West, Palatka, Florida 32177. Petitions for

administrative hearing on the above

application(s) must be filed within fourteen

(14) days of publication of this notice or

within nineteen (19) days of the District

depositing notice of its intent in the mail

for those persons to whom the District mails

actual notice. Failure to file a petition

within this time period shall constitute a

waiver of any right such person may have to

request an administrative determination

(hearing) under sections 120.569 and 120.57,

F.S., concerning the subject permit

application. Petitions which are not filed

in accordance with the above provisions are

subject to dismissal. Because the

administrative hearing process is designed to

formulate final agency action, the filing of

a petition means that the Districts [sic]

final action may be different from the

position taken by it in this notice of

intent. Persons whose substantial interests

will be affected by any such final decision

of the District to become a party to the

proceeding, in accordance with the

requirements set forth above. (Emphasis

added)

5. On February 27, 1998, the District sent Horse's Head,

Ltd., the permit applicant, a notice of intended agency action to

issue the ERP to fill approximately 5.79 acres of wetlands on

John's Island in the Town of Indian River Shores, Indian River

County, Florida, to create five residential lots in an existing

residential development commonly known as "John's Island."

6. Subsequent to the foregoing, a group of homeowners whose

properties are adjacent to the applicant's site timely challenged

the intended agency action.

7. This group, designated in this record as the Prosser

petition, sought an administrative hearing and the matter was

forwarded to the Division of Administrative Hearings for formal

proceedings. The Prosser petition was assigned to Administrative

Law Judge Linda Rigot as DOAH Case No. 98-1784.

8. The Prosser challengers and Horse's Head eventually

reached an amicable resolution. Horse's Head agreed to modify

the subject application by reducing the filling of wetlands on

the project site; by reducing the number of proposed residential

lots; by undertaking additional mitigation activities on Hole-in-

the-Wall Island, which is owned by Horse's Head; and by placing

additional acreage under a conservation easement previously

created for the subject permit application.

9. Pursuant to the stipulated settlement agreement referred

to in the previous paragraph, Horse's Head agreed to request, and

did request, the District to modify its ERP application as

follows:

(A) Reduce the wetland impacts for Parcel A (see composite

Exhibit "A" to Exhibit "4") from ± 2.45 acres to ± 1.03 acres.

(B) Reduce the wetland impacts to Parcel B (see Exhibit "B"

to Exhibit "4") from ± 3.34 acres to ± 1.63 acres.

(C) Eliminate the northernmost of the proposed lots in

Parcel B, thus reducing the total number of lots proposed for

development in Parcel B from 4 to 3 lots.

(D) Create an additional 1.77 acres of wetlands by removing

the Florida Power & Light ("FP&L") roadbed/power line easement on

Hole-in-the-Wall Island and scraping down 0.6 acres of spoil

banks within the conservation easement.

(E) Perform the rotational impoundment management "RIM"

mitigation plan previously proposed for Hole-in-the-Wall Island,

with the exception that clearing of nuisance exotic species on

the perimeter dike has been deleted.

(F) Incorporate the majority of the northernmost of the

four lots originally proposed in Parcel B into the revised and

expanded area subject to a conservation easement for that parcel.

(G) Place approximately 78 acres under a conservation

easement consistent with the terms and provisions of the

conservation easement previously created for this application.

10. Pursuant to the stipulated settlement agreement, the

Prosser petition was voluntarily dismissed on or about

February 25, 1999, and Case No. 98-1784 was closed by Judge Rigot

on or about March 1, 1999.

11. Prior to the dismissal of DOAH Case No. 98-1784,

Petitioner, Edna Wieler, sent a letter to the District to contest

the instant application. The Wieler letter, dated October 1,

1998, included a collection of signatures of those who reportedly

opposed the applicant's proposed development.

12. Petitioner Wieler had not timely filed a petition to

challenge the applicant's project in March of 1998. Moreover,

Petitioner Wieler had not sought to intervene in the proceeding

which had been timely filed (DOAH Case No. 98-1784).

13. Petitioner Wieler sent a second letter to protest the

instant ERP on October 20, 1998.

14. Because of the Wieler letters in opposition to the

project, the District added Petitioner Wieler's name to the data

base of those persons claiming an interest in the subject permit

application.

15. Mark Gronceski is an environmental specialist employed

by the District responsible for reviewing ERP applications for

projects located in Indian River County. As such he was

instrumental in the agency's review of the instant project.

16. On December 15, 1998, Kenneth Oertel wrote to Mr.

Gronceski with regard to the subject project. Mr. Oertel's

letter provided:

On behalf of the Town of Indian River Shores

I would request that you send me a copy of

the final staff report prepared for the

above-referenced application and any notice

that this matter will be placed on the

Governing Board agenda. I would like to be

furnished with these documents in sufficient

time to evaluate whether a petition, pursuant

to Chapter 120, F.S., will be filed.

17. On February 12, 1999, the District sent a written

notice of Intended District Decision on Permit Application 4-061-

0164A-ERP to Interested Parties including Petitioners Wieler and

Kenneth Oertel.

18. On February 18, 1999, a second notice of the District's

intended action in this case was published in the Vero Beach

Press-Journal. This notice mirrored the first notice published.

It did not reference the modifications to the permit application

which had been reached through the settlement of DOAH Case No.

98-1784.

19. On March 2, 1999, the District staff sent the applicant

a notice of intended agency action to approve the Horse's Head

ERP permit as modified pursuant to the above-referenced

stipulated settlement agreement.

20. On March 5, 1999, the Town of Indian River Shores and

Wieler filed Petitions for Formal Administrative Proceeding

challenging the District's intent to approve the Horse's Head ERP

permit as modified by the stipulated settlement agreement.

21. The District uses three forms of notice regarding ERP

applications. When an ERP application is submitted, notice of

receipt of such application is posted in each District service

center. Further, a copy of the posted notice is provided by mail

to persons or organizations who have requested notice of ERP

applications. These "interested persons" receive notice based

upon District-wide interests or for a requested county interest.

The District is aware that some persons simply want notice of all

ERP applications. Organizations in this category include the

Florida Audubon Society and the Pelican Island Audubon Society as

well as others.

22. The District considered Petitioner Wieler and

Mr. Oertel "interested persons" to whom notice of the applicati on

should be sent.

23. When the District is prepared to agenda an ERP

application for Board intended action, the District publishes a

notice for the public of the proposed action and sends a second

notice to the interested persons in its data base. This second

type of notice provides a point of entry for interested persons

to contest the proposed action.

24. A third type of notice used by the District is termed a

"sunshine notice." This notice makes interested persons aware of

items on a Board agenda. It is sent to all persons in the data

base but does not offer a point of entry for agenda items. It

merely lets interested persons know what topics will be on the

Board agenda.

25. In this case, the District erroneously issued the

second type of notice to the interested persons in its data base.

Consequently, instead of the sunshine notice which should have

been issued to Petitioners, they received the second type of

notice. Petitioners claim a point of entry based upon the

language of the second notice.

26. The District Board did not formally determine

Petitioners are entitled to be "parties" to an administrative

review of the subject project.

27. The issuance of the notice to Petitioners was no more

than a clerical oversight.

28. None of the Prosser group who timely challenged the

applicant's project have supported Petitioners' efforts in this

matter.

29. The modified permit application as currently endorsed

by the District and requested by Horse's Head does not constitute

a substantial deviation from the original permit application

noticed in February 1998. Petitioners have stipulated that the

modified permit application is less impacting than the original

design.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings.

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

(1) The notice of agency decision shall

contain the information required by Section

120.569(1), F.S. The notice shall also advise

whether mediation under Section 120.573,

F.S., is available as an alternative remedy,

and if available, that pursuit of mediation

will not adversely affect the right to

administrative proceedings in the event

mediation does not result in a settlement.

(2) Unless otherwise provided by law,

persons seeking a hearing on an agency

decision which does or may determine their

substantial interests shall file a petition

for hearing with the agency within 21 days of

receipt of written notice of the decision.

(3) An agency may, for good cause shown,

grant a request for an extension of time for

filing an initial pleading. Requests for

extension of time must be filed with the

agency prior to the applicable deadline.

Such requests for extensions of time shall

contain a certificate that the moving party

has consulted with all other parties, if any,

concerning the extension and that the agency

and any other parties agree to said

extension. A timely request for extension of

time shall toll the running of the time

period for filing a petition until the

request is acted upon.

(4) Any person who receives written notice

of an agency decision and who fails to file a

written request for a hearing within 21 days

waives the right to request a hearing on such

matters.

(5) The agency may publish, and any person

who has timely requested mediation may, at

the person's own expense, cause the agency to

publish, a notice of the existence of the

mediation proceeding in the Florida

Administrative Weekly or in a newspaper of

general circulation in the affected area.

The mediation notice can be included in the

notice of intended agency action.

(a) The notice of the mediation proceeding

shall include:

1. A statement that the mediation could

result in a settlement adopted by final

agency action;

2. A statement that the final action arising

from mediation may be different from the

intended action set forth in the notice which

resulted in a timely request for mediation;

3. A statement that any person whose

substantial interests may be affected by the

outcome of the mediation shall within 21 days

of the notice of mediation proceeding file a

request with the agency to participate in the

mediation; and

4. An explanation of the procedures for

filing such a request.

(b) The notice shall also advise that in the

absence of a timely request to participate in

the mediation, any person whose substantial

interests are or may be affected by the

result of the mediation waives any right to

participate in the mediation, and that waiver

of participation in the mediation is also a

waiver of that person's ability to challenge

the mediated final agency action pursuant to

Chapter 120, F.S.

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

in part:

(2)(a) "Receipt of written notice of a

District decision" as set forth in section

28-106.111, F.A.C., means receipt of either

written notice that the District intends to

take or has taken final agency action, or

publication of notice that the District

intends to take or has taken final agency

action. If the District's Governing Board

takes action which substantially differs from

a written notice of the District's decision

describing intended action, persons who may

be substantially affected shall have an

additional 21 days, of for [sic] consolidated

notice of intent under section 373.427, F.S.,

an additional 14 days, from the date of

receipt of notice of a said action to request

an administrative hearing, but this request

for administrative hearing shall only address

the substantial deviation.

33. Petitioners rely on the notice received on or about

February 22, 1999, as their "express point of entry" to challenge

the proposed agency action. They argue that the District has

granted them "party" status as defined in Section 120.52(12),

Florida Statutes. In essence, they claim the District afforded

interested persons a second opportunity to contest the proposed

project, and their petitions were timely filed based upon the

second notice.

34. Petitioners maintain that the administrative process

must be extended until this latest challenge can be resolved.

They contend the merits of their challenge to the project must be

addressed.

35. To the contrary, it is concluded that the Petitioners

were given notice of the intended action which provided an

alleged point of entry in error. The District clerical staff did

not issue the sunshine notice as was appropriate, but issued the

second notice which had previously been issued.

36. The District Board did not extend party status to

Petitioners. A clerical error does not provide a point of entry.

37. In this case it is undisputed that the original notice

published in February 1998 provided the public with sufficient

notice of the proposed project. It afforded Petitioners with an

adequate opportunity to participate in the administrative

process. It notified Petitioners that the file regarding this

application was available for public review, it advised

Petitioners that their failure to file a petition would

constitute a waiver of any right to participate in an

administrative proceeding, and it specified that the failure to

timely file would subject them to dismissal. That is exactly the

remedy the District and the applicant now seek.

38. Finally, the District's intent to issue the ERP

remained constant. The modifications to the permit resulted in

less impact to the wetlands. As such, and as stipulated by

Petitioners, there is no substantial deviation from the project

originally noticed. As such, there are no circumstances to

extend the point of entry as proposed by Petitioners.

Accordingly, it is concluded Petitioners failed to timely file

the challenges to the proposed project. See Rudloe v. Department

of Environmental Regulation , 517 So. 2d 731 (Fla. 1st DCA 1987).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the St. Johns River Water Management

District issue a enter a final order dismissing the instant

Petitions.

DONE AND ENTERED this 7th day of June, 1999, in Tallahassee,

Leon County, Florida.

___________________________________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of June, 1999.

COPIES FURNISHED:

Mary Jane Angelo, Esquire

Charles A. Lobdell, III, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178-1429

Timothy P. Atkinson, Esquire

Kenneth G. Oertel, Esquire

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

301 South Bronough Street

Fifth Floor

Post Office Box 1110

Tallahassee, Florida 32302-1110

William L. Hyde, Esquire

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

215 South Monroe Street, Suite 830

Tallahassee, Florida 32301

Henry Dean, Executive Director

St. John's River Water Management District

Post Office Box 1429

Palatka, Florida 32178-1492

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.