Gregory v. Indian River County, 90-3135

• Decision Date: 04 December 1992
• Docket Number: No. 90-3135,90-3135
• Citation: 610 So.2d 547
• Parties: 17 Fla. L. Week. D2729 Martin GREGORY and Richard Wiggins, as Trustees, and Paul Hoffman, Appellants, v. INDIAN RIVER COUNTY and State of Florida Department of Environmental Regulation, Appellees.
• Court: Florida District Court of Appeals

Page 547

610 So.2d 547

17 Fla. L. Week. D2729

Martin GREGORY and Richard Wiggins, as Trustees, and Paul

Hoffman, Appellants, v. INDIAN RIVER COUNTY and State of Florida Department of

Environmental Regulation, Appellees.

No. 90-3135.

District Court of Appeal of Florida,

First District.

Dec. 4, 1992.

Rehearing Denied Jan. 22, 1993.

Michael O'Haire of Smith, O'Haire, Quinn & Smith, Vero Beach; J. Alan Cox, Tallahassee; Will J. Richardson of Richardson Law Offices, Tallahassee, for appellants.

David M. Rogero and Arthur F. Heller of Blackwell & Walker, Douglas H. MacLaughlin, Asst. General Counsel, Dept. of Environmental Regulation, Tallahassee, for appellees.

WOLF, Judge.

Appellants, Martin Gregory and Richard Wiggins as trustees, and Paul H. Hoffman challenge a final administrative order of the Department of Environmental Regulation (DER) granting a permit to appellee, Indian River County (county), to construct a stormwater treatment system and to engage in certain dredge and fill activities. The permit was sought in connection with the proposed extension of Indian River Boulevard, a road within Indian River County. The appellants are the owners in fee simple of the property upon which the county proposed to conduct a substantial portion of the activities which are the subject of the permit.

Appellants argue three issues on appeal: 1) Whether the appellants were improperly denied standing in a proceeding to determine whether to issue a permit for dredge and fill activities on the appellants' property; 2) whether DER has dredge and fill jurisdiction within the land in question; and 3) whether the mitigation required by DER exceeded that warranted by the extent and conditions of the wetlands impacted. While we hold that the appellants were improperly denied standing, we affirm the decision of the department because the hearing officer allowed all parties an opportunity to fully participate in the hearing and gave full and appropriate consideration to the issues which were properly before her.

The appellee, Indian River County, applied to the Florida Department of Environmental Regulation on November 27, 1987, for permits to construct a stormwater treatment facility and to engage in certain dredge and fill activities related to construction of the county's proposed extension of Indian River Boulevard. The proposed extension of the road would follow the western dike of Indian River Mosquito Impoundment No. 22 and would require dredging and filling both inside the impoundment to the east of the dike and outside the impoundment to the west of the dike.

The county was not the owner of the land in question, but sought to determine the extent of environmental mitigation required by the permitting agencies before deciding what property should be acquired through condemnation. Initially, DER indicated that it did not have wetlands jurisdiction over the mosquito control impoundment area because of the lack of a direct service connection with the waters of the state. While the county was developing a mitigation plan, DER clarified its policy on jurisdiction within mosquito control impoundments.

The department determined that land which would have been considered wetlands but for the presence of mosquito control dikes, would be wetlands. The county did not challenge the interpretation, nor the amount of mitigation required. The county submitted a plan which DER accepted.

DER issued an intent to grant the requested permits on January 12, 1990. The appellants moved to intervene and petitioned for a formal administrative hearing pursuant to section 120.57, Florida Statutes, on January 12, 1990. ¹

The appellants filed similar petitions to intervene which, in pertinent part, alleged

5. Petitioner is the record titleholder to significant portions of the real property upon which the Applicant intends to construct its project (i.e., the Indian River Boulevard north extension). Petitioner's ability to use, enjoy, and develop his own property would be substantially affected if the Applicant received the subject permit. Despite the pending effort to secure a permit for dredging and filling activities on the Petitioner's land, the Applicant does not possess any right, title, or interest in the subject property. The Applicant's project, if constructed, permanently would prohibit Petitioner's use of his own property.

6. The issues of material fact upon which the Department's proposed action is based that Petitioner disputes include, but are not limited to, the following:

a) that the Department has wetlands resource regulatory jurisdiction over the width and breadth of the area(s) asserted by the Department and acquiesced in by the Applicant.

b) that the Rotational Impoundment Management (RIM) plan and other mitigative measures required by the Department and acquiesced in by the Applicant are necessary or appropriate to offset the loss of purported wetlands due to filling activities associated with the proposed project.

c) that the Applicant's right-of-way, plan of development for the road and associated bridges, and mitigation efforts represent the least adverse impact on the Petitioner's property or on the environment.

A hearing was held before a hearing officer from the Division of Administrative Hearings on June 19 and 20, 1990. Appellants participated in said hearing and had an opportunity to present and cross-examine witnesses. Appellants presented one expert witness who testified that the mitigation accepted by the department was excessive. As a result of this, the appellants argued that a greater portion of their lands would be taken by the county to complete its projects, and the appellants would be deprived of the use and enjoyment of the property.

After the hearing, the hearing officer made the following pertinent findings of fact concerning standing of the appellants, the wetlands jurisdiction, and sufficiency of the proposed mitigation:

4. Impoundment 22 was constructed prior to 1957. Originally, the impoundment was periodically flooded in an effort to limit salt marsh mosquito breeding. Later, insecticides were employed to deter mosquito proliferation. The area within the impoundment contains wetland indicator plant species which suggests that prior to the construction of the dikes, that the tract was a wetlands area.

7. The dispute over the wetlands calculation arose due to a Department interpretation of the mosquito impoundment. The Department's current policy requires that the impoundment be considered wetlands if it would have been wetlands but for the presence of the mosquito control dikes. On May 24, 1989, the Department advised the County of that interpretation and of the extent of the impacts to wetlands due to the road proposal. The Department asserted that in addition to the 8.1 acres outside of the impoundment to be impacted, approximately 7.12 acres within the impoundment would be effected. The County acquiesced in that interpretation and agreed to provide mitigation for the project based upon that assumption of jurisdiction. The Petitioners have disputed that jurisdictional interpretation.

12. Without mitigation, the negative impacts associated with the construction of the road extension would cause a loss of habitat and would adversely affect the conservation of fish and wildlife. The area within impoundment 22 is disturbed wetlands in that over the years the parcel has experienced an invasion of exotic species such as melaleuca and Brazilian pepper trees. Because the diked perimeter effectively cut off the natural flows of waters through the area, the native plants (many among the wetlands indicator species) have been adversely affected.

13. The Department considers undisturbed wetlands to be of a higher quality than disturbed wetlands. Consequently, mitigation proposed for wetland loss considers whether the proposal creates new wetlands, enhances existing wetlands, or simply preserves wetlands. Mitigation ratios for the various categories range from 1:1 to 5:1, when wetlands are created to replace the lost wetland, to 10:1 to 100:1, when existing wetlands are merely preserved.

14. In this case, the mitigation RIM plan will eliminate potential negative environmental impacts from spraying larvacides and will enhance the wetlands within the impoundment. The ratio of acreage proposed for mitigation is not unreasonable given the benefits to be derived from the County's proposal.

15. The mitigation proposed by the County adequately offsets the loss of wetlands that will occur.

The hearing officer also made the following pertinent conclusions of law

9. In this case, the County has provided reasonable assurances that its road project will not violate water quality standards.

10. The County has further established that based upon the balancing criteria set forth in Section 403.918, Florida Statutes, that the project is not contrary to the public interest.

11. Moreover, the mitigation proposed by the County and required by the permit conditions will adequately mitigate any adverse effects caused by the project.

12. The Petitioners have not established a substantial environmental interest which will be adversely affected by the approval of the County's project. The economic interests which Petitioners have argued must be considered are inadequate, as a matter of law, to show that their interests will be substantially affected by the agency approval of the subject permits. See Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981).

The final order of the department adopted all material findings and conclusions of the hearing officer. The department also fully addressed appellants' exception to the findings of fact and conclusions of law.

The difficulty in this case arises because of the interrelationship between the necessity for obtaining environmental permits from administrative agencies in connection with a proposed governmental project, and the...