Alliance for Conservation of Natural Resources in Pinellas County v. Furen, 547

• Decision Date: 29 June 1960
• Docket Number: No. 547,547
• Citation: 122 So.2d 51
• Parties: ALLIANCE FOR CONSERVATION OF NATURAL RESOURCES IN PINELLAS COUNTY, Florida, a Florida nonprofit corporation, Appellants, v. Al W. FUREN et al., Appellees.
• Court: Florida District Court of Appeals

Page 51

122 So.2d 51

ALLIANCE FOR CONSERVATION OF NATURAL RESOURCES IN PINELLAS COUNTY, Florida, a Florida nonprofit corporation, Appellants, v. Al W. FUREN et al., Appellees.

No. 547.

District Court of Appeal of Florida, Second District.

June 29, 1960.

Richard W. Ervin, Atty. Gen., Ralph McLane, Asst. Atty. Gen., and T. M. Schackleford, Jr., Sp. Atty., Tampa, for appellants, State of Florida, State Board of Conservation, and Trustees of Internal Improvement Fund of State of Florida.

Noble C. Doss, Gulfport, for appellant, City of Gulfport.

Orr, Weiss & Simon, Miami, for appellants, Walter Anderson, Dana Boose, Robert W. Caldwell, Jr., Carter Rich, Marshall Stone, Audrey Frey, a married woman, by her next friend, Albert O. Frey, and Gail J. Caldwell, a widow, individually and as members of and for and on behalf of Taxpayers Protective Committee.

Knight Guild Aulsbrook, St. Petersburg, for appellants, Alliance for Conservation of Natural Resources in Pinellas County, Florida; Daisy K. Edwards; Edward F. Brantley; Mary R. Tracy; and Floyd L. Brown.

J. Velma Keen and C. H. Spitz; Keen, O'Kelley & Spitz, Tallahassee, J. Hardin Peterson and J. Hardin Peterson, Jr., Lakeland, for appellees.

ALLEN, Chief Judge.

A petition for certiorari to the District Court of Appeal, Second District, was filed in the Supreme Court the 4th of June, 1959, on behalf of the appellants. The petition sought to have the Supreme Court review the decision of the Court of Appeal contained in an opinion dated February 25, 1959, 110 So.2d 55. The basis for the petition was that the majority of the Court of Appeal held that the circuit judge was correct in adopting the substantial evidence rule in his review of the actions of the fill Authority in granting a permit in this case. It was contended in their brief that the decision of this court conflicted with other decisions of the Supreme Court of Florida.

The Supreme Court, on the 8th day of July, 1959, State v. Furen, 114 So.2d 4, denied certiorari. This case then took on an unusual course by the perfection of an appeal to the Supreme Court in this same case, the assignment of error being that the Court of Appeal erred in initially construing as a controlling provision of the Florida Constitution that the court did not have authority to entertain an appeal and that it would treat the appeal as a petition for certiorari.

A review of the briefs of both parties filed in the Supreme Court in the above appeal shows that the only question assigned and argued was whether this court erred in treating the appeal as a petition for certiorari.

The Pinellas County Water was Navigation Control Authority was created by Chapter 31182, Special Acts, Laws of Florida, 1955. The Authority was authorized to regulate and exercise control over the dredging and filling of all submerged bottom lands, in the waters of Pinellas County, together with all islands, sandbars, swamp and overflow lands and other sovereignty lands.

The County Authority is composed of the members of the Board of County Commissioners of Pinellas County.

Section 8 of the Act provided that any person desiring to do any dredging, pumping, filling, extension of lands, construction of islands in, or under said navigable waters, shall make an application to the County Authority for a permit to be granted to such person to do the acts authorized.

Section 8(e) of Chapter 31182, Laws of Florida, Special Acts, 1955, provides:

'That the Pinellas County Water and Navigation Control Authority, in order to prevent undesirable situations which might result from the promiscuous and uncontrolled filling of bottom land or the excavating of basins or channels without regard to what might result therefrom, shall obtain such engineering or other data and hear such testimony under oath as may be necessary to determine.

'1. The effect of the proposed plan or development on the use of said waters in said county for transportation and recreational or other public purposes and public conveniences.

'2. The effect of the proposed plan or development on the free use of the waterways and navigable waters.

'3. The effect of the proposed plan or development upon erosion control.

'4. The effect of the proposed plan or development upon the flow of water or tidal currents in said county.

'5. The effect of the proposed plan or development upon erosion, shoaling of channels, formation of stagnant pockets likely to collect debris and upon extraordinary storm damage.

'6. The effect of the proposed plan or development upon the natural beauty and recreational advantages of Pinellas county.

'7. The effect of the proposed plan or development upon the conservation of wild life, marine life, and other natural resources.

'8. The effect of the proposed plan or development upon the uplands surrounding or necessarily affected by said plan or development.

'The Board, after public hearing, from said data and testimony, shall make findings of fact and determine whether or not the proposed plan or development will materially affect any of the rights and interests of the public heretofore set out in this section. Said findings of fact and said determination shall be reduced to writing and shall be filed with the Clerk of the Board and, when so filed, shall be open to the public. The Board shall, if it desires, or at the request of any applicant or any objector cause the testimony taken at the public hearing to be reported and transcribed, which testimony together with all engineering and other data considered by the Board shall be filed with the Clerk of the Board and, when so filed, the same shall be open to the public; provided, however, that the Board may require the person or persons requesting the reporting of said testimony to post with the Board sufficient moneys to pay the costs of reporting and transcribing the same.

'If the Authority shall find that the proposed plan or development will not materially affect adversely any of the rights and interests of the public heretofore set out in this section, said Authority shall then grant and issue a permit for said proposed plan or development of any modification thereof according to the provisions of this act as hereinafter provided.

'If the Authority shall find that the said proposed plan or development will materially affect adversely any of the rights or interests of the public heretofore set out in this section, the said Authority shall deny the application and refuse to issue a permit for the proposed plan or development.

'Said permit, if granted, shall not be effective until thirty (30) days after the filing of the determination with the Clerk and, if petition for rehearing is filed, until said petition is heard and determined.

'Any person, firm or corporation, including the state of Florida, Pinellas county, and any municipal corporation in said county, in the event they are aggrieved by the findings of fact and determination of the Board, may within thirty (30) days of such findings and determination, petition for rehearing, stating in their petition the grounds upon which the governing authority has erred in its findings and wherein they are aggrieved by said findings. The governing authority may, in its discretion, grant or deny such rehearing.

'Any person, firm or corporation, including the state of Florida, Pinellas county and any municipal corporation in said county, who is aggrieved by the Board's ruling on the petition for rehearing shall have the right to have the entire cause reviewed by the Circuit Court of the Sixth Judicial Circuit of Florida in and for Pinellas county as provided by law for other appeals to the Circuit Court.' (Emphasis added.)

Section 9 of Chapter 31182, Laws of Florida, Special Acts, 1955, provides:

'The Board may, if it deems it necessary, employ an examiner or examiners who shall conduct such of the public hearings provided for by Sections 8 and 11 of this act as may be referred to said examiner or examiners by the Board.

'(a) The Board may enter an order referring the hearing to an examiner, which order shall be filed by the Clerk of the Board and become a part of the records of said Board.

'(b) The examiner shall regulate all of the proceedings in every hearing before him, upon every reference; and he shall have full authority to examine the proponent, the objectors and all witnesses, upon oath, touching all material matters relative to the application and also to direct the mode in which the matters requiring evidence shall be proved before him, and generally to do other acts, and direct all other inquiries and proceedings in the matter before him which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. The examiner shall also administer the oath to all witnesses testifying before him.

'(c) The evidence in all examinations before the examiner shall be taken down in writing by the examiner or by some other person, by his authority, in his presence and filed with his report.

'(d) The examiner shall forthwith, after the public hearing, make his report to the Board. Said report shall be in writing and shall make findings of fact and recommendations as to the determination of the application, and attached to said report and made a part thereof shall be all testimony taken at said public hearing, together with all engineering and other data considered by the examiner in making his recommendations.

'(e) Said report shall be filed with the Clerk of the Board and the Clerk of the Board shall notify by registered mail all of the persons, firms or corporations entitled under Section 8(d) of this act to notice of the hearing that said report has been filed. Any person, firm or corporation, including the state of Florida, Pinellas county and any municipality within said county, in the event they are aggrieved by the findings of fact and recommendations of the examiner, may, within thirty (30) days of the mailing of the...