Grove Isle, Ltd. v. Bayshore Homeowners' Ass'n, Inc.
| Citation | 418 So.2d 1046 |
| Decision Date | 16 July 1982 |
| Docket Number | Nos. AB-8,AC-373,s. AB-8 |
| Parties | GROVE ISLE, LTD., Appellant/Cross-Appellee, v. BAYSHORE HOMEOWNERS' ASSOCIATION, INC., et al. and State of Florida Department of Environmental Regulation, Appellees/Cross-Appellants. BAYSHORE HOMEOWNERS' ASSOCIATION, et al., Appellants/Cross-Appellees, v. STATE of Florida, DEPARTMENT OF NATURAL RESOURCES and Grove Isle, Ltd., Appellees/Cross-Appellants. |
| Court | Court of Appeal of Florida (US) |
Larry S. Stewart of Floyd, Pearson, Stewart, Richman, Greer & Weil, P.A., Miami, and Kenneth G. Oertel of Oertel & Laramore, P.A., Tallahassee, for appellant/cross-appellee Grove Isle, Ltd.
Douglas M. Halsey of Paul & Thomson and David A. Doheny, Miami, for appellant/cross-appellee Bayshore Homeowners, et al.
Deborah A. Getzoff, Tampa, for appellee Dept. of Natural Resources.
Alfred W. Clark, Alfred J. Malefatto, and Randall E. Denker, Tallahassee, for appellee Dept. of Environmental Regulation.
These cases are consolidated appeals and cross appeals from final orders of the Department of Natural Resources (DNR) and the Department of Environmental Regulation (DER) concerning construction of a proposed marina adjacent to Grove Isle in Biscayne Bay.
Grove Isle, Ltd. seeks to construct a marina adjacent to its condominium project on Grove Isle. Bayshore Homeowner's Association and others are individuals and special interest groups who reside in the residential area across from Grove Isle on the mainland and who use the proposed marina site for recreational activities. They, of course, oppose construction of the marina, arguing that it will interfere with their enjoyment of the area and pollute that part of Biscayne Bay.
The proposed marina will contain 90 boat slips and be constructed on approximately five and one-half acres of State submerged lands. The slips will be available only to Grove Isle condominium owners.
On 27 March 1979, Grove Isle, the developer of the marina project, filed an application with DNR for a lease of sovereignty submerged lands. DNR informed Grove Isle that no lease was required. Under DNR's interpretation of its rules, the marina would be a private dock used exclusively by condominium owners which produced no direct income.
Bayshore and the other petitioners administratively challenged this determination. Grove Isle was permitted to intervene as a respondent and moved to dismiss the petitions for lack of standing. DNR joined the motions to dismiss. The hearing officer held that the petitioners lacked standing. He also held that no lease was required because since 1978 DNR had interpreted its rules so as not to require leases under the circumstances of this case.
The finding of no standing was premised on the conclusion that the petitioners had no substantial interest in the proceedings and that DNR had taken no action and would take no action which affected the substantial interest of any party.
The Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund (Trustees), adopted the hearing officer's conclusions of law that no lease of sovereignty submerged lands was required but rejected his conclusion of law regarding standing. The Trustees held the petitioners demonstrated standing and must be allowed a point of entry in the proceedings. Bayshore and others appeal the decision regarding the lease, and Grove Isle cross appeal the standing decision.
We affirm the appeal, reverse the cross appeal, and hold that the petitioners lack standing to challenge DNR's decision that no lease was required. Petitioners have failed to show how their "substantial interests" will be "affected" by the DNR's decision that no lease is required. They, therefore, were not entitled to initiate Section 120.57 proceedings. Section 120.52(10); Section 120.57, Florida Statutes (1979). Their petitions for administrative hearing allege that they will be adversely affected by the adverse consequences to Biscayne Bay which will be caused by construction of the marina. These allegations do not show how petitioners are "substantially affected" any more than the general public by DNR's decision not to require a lease for the marina. See U.S. Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla. 1974); Chabau v DNR's decision merely holds that no lease is required for the proposed marina. It in no way concerns the permit requirements for construction of the marina. This case is analagous to Peterson v. Florida Department of Community Affairs, 386 So.2d 879 (Fla. 1st DCA 1980), and Suwannee Area Council, etc. v. State, 384 So.2d 1369 (Fla. 1st DCA 1980). In those cases, we held that third parties had no standing to challenge a decision by the Department of Community Affairs as to whether a proposed construction project was a development of regional impact (DRI).
Dade County, 385 So.2d 129 (Fla. 3d DCA 1980).
As noted in Peterson, a determination of whether a project is a DRI does not insulate the developer from jurisdictional or permitting requirements of other federal, state, or local agencies. Likewise, a decision by DNR that no lease is required for Grove Isle's proposed marina does not insulate the developer from the permitting requirements governing construction of the marina. Because the petitioners have failed to demonstrate how they are substantially affected any more than the general public by DNR's decision not to require Grove Isle to pay rent for the submerged land in question, we reverse that portion of the Trustee's final order granting petitioners standing and dismiss Bayshore's appeal.
On 13 March 1978, Grove Isle applied to DER for a permit to construct the marina. The permit was "deactivated" from 27 September 1978 until 30 March 1979, so that Grove Isle could comply with other various governmental agencies regarding construction of the marina. Grove Isle's permit was deemed complete by DER on 3 August 1979. DER issued an "intent to issue permit" on 23 October 1979. Bayshore and others filed for an administrative hearing on whether the permit should issue.
The initial hearing was held in January 1980. The hearing officer issued a recommended order that the permit be issued. Bayshore and the other petitioners, except for Mr. Doheny and Mr. Filer, were found to lack standing. The hearing officer's finding was based on a lack of evidence in the record upon which a legal conclusion regarding the remaining petitioners' standing could be made.
This hearing was conducted using Rule 17-4.29, Florida Administrative Code, as the applicable water...
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