Board of Trustees of Internal Imp. Trust Fund of State of Fla. v. Barnett
Decision Date | 22 November 1988 |
Docket Number | No. 88-578,88-578 |
Parties | 13 Fla. L. Weekly 2590 BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND OF the STATE OF FLORIDA, Appellant, v. Mark BARNETT, f/k/a Mark Bartecki, and Lynn H. Kephart, individually, and Spoonbill Sound, Inc., a Florida corporation, Appellees. |
Court | Florida District Court of Appeals |
Ross Stafford Burnaman, Asst. Gen. Counsel, State of Fla., Dept. of Natural Resources, Tallahassee, for appellant.
Morgan & Hendrick and James T. Hendrick, Key West, for appellees.
Before SCHWARTZ, C.J., and BASKIN and JORGENSON, JJ.
The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, plaintiff below, appeals from a summary judgment entered by the circuit court of Monroe County in favor of Mark Barnett, f/k/a Mark Bartecki, Lynn H. Kephart, and Spoonbill Sound, Inc. The circuit court determined that the appellees, defendants below, were entitled to judgment as a matter of law, based upon the following findings of fact and conclusions of law:
The proposed project is not in conflict with any of our existing rules; therefore we have no objections ... Please consider this the authority sought under section 253.77, Florida Statutes, to pursue this project.
"6. On June 24, 1983, the Department sent a letter to Barnett's agent (Exhibit 'B' to the Complaint), the complete text of which is set forth below:
We have been advised that the above captioned application has been denied a variance by Monroe County Board of Adjustment.
As a variance will not be issued for the project, this Department is withdrawing its consent and will place your application in an inactive status and no further action will be taken on it.
If you have any questions concerning this matter, please do not hesitate to contact Grant Gelhardt, at 904/488-2297.
As agreed, your client's request for a hearing will, for the time being, be held in abeyance. I have requested Department staff to conduct an on-site inspection of the area of the proposed structure and to assess impacts on marine life. You will be notifed shortly of the staff's findings and the Department's intention to act upon your client's application. The right to request an administrative hearing will be activated at that time.
Plaintiff did not notify Barnett 'shortly' of its intention to act or of his 'right to request an administrative hearing.'
"9. By letter dated December 8, 1986, Barnett's attorney requested reinstatement of the Consent of Use. More than three and one-half months later, the Department responded (Exhibit 'C' to the Complaint, document 2) stating, in pertinent part:
Now pending before the Department of Natural Resources is your request for hearing, related to the Department's withdrawal of its consent of use; this request for hearing [made more than three and one half years ago] will [continue to] be held in abeyance, as there has been no final agency action of the application that would warrant an administrative hearing at this time.
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Once all appropriate permits, including local development orders, have been obtained, the application will be reviewed based on the current rules, guidelines and policies for docking facilities in the Florida Keys, including the Florida Keys Marina Siting Criteria and the current provisions of Rule 18-21 governing applications.
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