Friends of the Everglades, Inc. v. Zoning Bd., Monroe County, s. BC-350

• Decision Date: 14 November 1985
• Docket Number: BD-326,Nos. BC-350,BE-63 and BE-357,s. BC-350
• Citation: 478 So.2d 1126,10 Fla. L. Weekly 2533
• Parties: 10 Fla. L. Weekly 2533 FRIENDS OF THE EVERGLADES, INC., a non-profit Florida corporation, Appellant, v. ZONING BOARD, MONROE COUNTY, Florida; Board of County Commissioners of Monroe County, Florida; South Florida Regional Planning Council; Florida Department of Community Affairs Garden Cove, Inc.; Port Bougainville Assoc., Ltd.; and Port Bougainville Enterprises, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 1126

478 So.2d 1126

10 Fla. L. Weekly 2533

FRIENDS OF THE EVERGLADES, INC., a non-profit Florida corporation, Appellant, v. ZONING BOARD, MONROE COUNTY, Florida; Board of County Commissioners of Monroe County, Florida; South Florida Regional Planning Council; Florida Department of Community Affairs Garden Cove, Inc.; Port Bougainville Assoc., Ltd.; and Port Bougainville Enterprises, Inc., Appellees.

Nos. BC-350, BD-326, BE-63 and BE-357.

District Court of Appeal of Florida,

First District.

Nov. 14, 1985.

Rehearing Denied Dec. 23, 1985.

Michael F. Chenoweth, Miami, for appellant.

Lucien Proby, Jr., and Sheri Smallwood, Key West, for appellee Monroe County.

Samuel S. Goren of Josias & Goren, Fort Lauderdale, for appellee South Florida Regional Planning Council.

C. Laurence Keesey, Tallahassee, for appellee Dept. of Community Affairs.

Robert P. Smith, Jr., and Kathleen Blizzard, Hopping, Boyd, Green & Sams, Tallahassee, for appellees City Nat. Bank, Garden Cove and others.

WENTWORTH, Judge.

By four consolidated petitions in this court the appellant corporation, Friends of the Everglades, Inc., seeks review of one hearing officer's order and three orders of the Florida Land and Water Adjudicatory Commission (FLWAC). We deny appellees' motions to quash the appeals from the Commission's orders which denied Friends' We dismiss, sua sponte, the appeal from the hearing officer's order ¹ on motion to dismiss, because such motions "can be finally disposed of only by the agency head." Rule 28-5.205. This order, in spite of its expressed closure of the file for mootness, is clearly nonfinal because the hearing officer has only that authority in this context. The agency has entered no order on mootness or otherwise, and appellant does not show, as required by § 120.68(1), Florida Statutes, that review of a final agency order would not provide an adequate remedy. Dismissal is of course without prejudice to a petition directed to any final agency order which may be entered. Criterion Insurance Co. v. State Department of Insurance, 458 So.2d 22 (Fla. 1st DCA 1984).

standing, but affirm those orders on the merits for reasons detailed below.

Appellees' motions to quash Friends' other appeals (from the three Commission orders on standing) assert that this court's prior opinion in Friends of the Everglades Inc. v. Board of County Commissioners of Monroe County, 456 So.2d 904 (Fla. 1st DCA 1984), review denied, 462 So.2d 1108 (Fla.1985), ² is res judicata on the standing issue in the present appeals. That opinion, however, related to development proceedings by Port Bougainville, a related project apparently involving the same parties and similar issues. Friends' present appeals assert procedural irregularities which occurred in the Garden Cove development, subsequent to the Port Bougainville proceedings. We therefore deny appellees' motions to quash because we find an insufficient identity of the cause of action for application of the strict res judicata doctrine.

However, on the merits of Friends' appeals on standing, our view of the prior opinion of this court does require affirmance based on well established estoppel doctrines precluding relitigation of issues previously adjudicated between the same parties. 32 Fla.Jur.2d, Judgments and Decrees, §§ 102 and 114. In the former appeal, as in this case, appellant has contended that the provisions of § 380.07(2), Florida Statutes, limiting standing for appeals, should not apply if the local proceeding is conducted in a manner which does not afford adequate notice and a fair opportunity for the public to be heard. This was expressly rejected in the former opinion:

As to the issue of due process of law, appellants assert they were entitled to adequate notice and an opportunity to be Friends of the Everglades, Inc. v. Board of County Commissioners of Monroe County, 456 So.2d 904, at 910, 911 (Fla. 1st DCA 1984). Appellant relies on further language in the opinion stating that the statutory denial of a right of appeal does not violate due process concepts "[o]nce due process is furnished at the local level." (e.s.) The emphasized words, in context, referenced only the fact that due process at the local level was adequately provided for, and did not determine that due process was in fact furnished or that, lacking such, a denial of appeal would be unconstitutional. Instead, the court's view of the statute clearly leaves appellant's enforcement of due process rights at the local level to some means other than appeal. The opinion sustains the legislative plan for FLWAC review of any such alleged errors in issuance of an order only "if the regional or state planning agencies believe that the public's interests will not be served by the local government's approval of a plan for development," and only when those parties initiate an appeal. Friends, supra at 911.

heard before the Monroe County Zoning Board and County Commission prior to approval by those bodies of a DRI development order. They contend they were denied that right, and section 380.07(2), which acts to exacerbate such denial by precluding them from appeal, is therefore unconstitutional. We disagree. (e.s.)

Appellant also contends that Chapter 380.07(2) constitutes an improper delegation of legislative authority by failing to provide standards and criteria for the...