Clean Water, Inc. v. State, Dept. of Environmental Regulation, PP-490
| Decision Date | 21 July 1981 |
| Docket Number | No. PP-490,PP-490 |
| Citation | 402 So.2d 456 |
| Parties | CLEAN WATER, INC. and Terri Saltiel, Appellants, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, and the FallschaseSpecial Taxing District, Appellees. |
| Court | Florida District Court of Appeals |
James R. Brindell, Tallahassee, for appellants.
J. D. Boone Kuersteiner, Tallahassee, for appellee Fallschase Special Taxing Dist.
William W. Deane, Tallahassee, for appellee State of Florida, Dept. of Environmental Regulation.
On Petition for Rehearing
Appellee, Fallschase Special Taxing District has moved for rehearing of this cause and has pointed out several minor factual inaccuracies in our opinion filed on May 7, 1981. In addition, appellee has suggested that the directions for remand of this case be clarified. Although correction of the factual inaccuracies and the clarified remand do nothing to alter the outcome of the opinion, we nonetheless issue the following revised opinion in order to both correct and clarify our earlier opinion. In light of this revised opinion, the remainder of the petition for rehearing is denied.
Clean Water, Inc., and Terri Saltiel appeal a final order of the Environmental Regulation Commission (ERC), which granted motions of appellees, the Department of Environmental Regulation (DER) and the Fallschase Special Taxing District, to dismiss the administrative appeal of appellants for failure to file a notice of appeal within the time prescribed by the ERC's rules of procedure. 1 Appellants assert it was error for the ERC to conclude that the DER's order of May 11, 1979, disposed of issues raised by appellant's subsequent petition for a formal hearing of May 22, 1979. We agree with appellants and reverse.
In December, 1973, the Florida Department of Pollution Control notified E. Lamar Bailey, the developer of the Fallschase Special Taxing District, of the possible need for permits to proceed with a housing development. These negotiations continued between the Florida Department of Pollution Control, which was later substituted by DER, Terri Saltiel, and Clean Water, Inc. until January 1979, when Saltiel and Clean Water notified DER of their belief that Fallschase was advertising for bids to clear and fill upon Lake Lafayette.
Subsequently, on May 2, 1979, appellants filed, with the DER, a petition for an administrative hearing under Florida Statute § 120.57. In this petition, appellants alleged that DER was about to take certain actions regarding the Fallschase Special Taxing District that were unlawful. A further allegation was made that a proposed agreement between DER and Fallschase regarding the necessity to obtain permits for proposed work was in violation of the law. By order, dated May 11, 1979, this petition was denied by the DER on grounds that the proposed stipulation between the DER and Fallschase was not a final action of the DER, but only a preliminary agreement by which Fallschase and DER might determine areas of the development subject to the permitting requirements of the DER. Appellants did not pursue an administrative appeal from this order.
Thereafter, on May 15, 1979, the DER and Fallschase entered into a Stipulation Respecting Agency Investigation Prior to Agency Action. On May 22, 1979, appellants filed a second petition for an administrative hearing. The DER again denied this petition by final order, dated June 1, 1979, asserting this second petition realleged the same matters and issues as the earlier petition filed on May 2, 1979.
Appellants then filed an administrative appeal from the DER's final order and motion to stay with the ERC. The ERC entered an order on August 31, 1979, which found appellants' second petition of May 22, 1979, substantially realleged the matters and issues which had been the subject of final agency action in the order of May 11, 1979. The ERC also determined that May 11, 1979 (date of DER's first order) was the date from which the time to file a notice of appeal specified by Section 17-1.72(1), Florida Administrative Code, must be computed.
Appellants contend that their petition for a formal hearing, filed on May 2, 1979,...
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