Perdue v. TJ Palm Associates, Ltd., 98-1344.

• Decision Date: 16 June 1999
• Docket Number: No. 98-1344.,98-1344.
• Parties: Norma PERDUE, Appellant, v. TJ PALM ASSOCIATES, LIMITED and South Florida Water Management District, Appellees.
• Court: Florida District Court of Appeals

755 So.2d 660

Norma PERDUE, Appellant, v. TJ PALM ASSOCIATES, LIMITED and South Florida Water Management District, Appellees.

No. 98-1344.

District Court of Appeal of Florida, Fourth District.

June 16, 1999.

Gregg Goldfarb of Gregg Goldfarb, P.A., Miami, for appellant.

John H. Pelzer, Thomas K. Gallagher and E. Lee Worsham of Ruden, McClosky, Smith, Schuster & Russell, P.A., West Palm Beach, for Appellee-TJ Palm Associates, Limited.

Susan Roeder Martin, West Palm Beach, for Appellee-South Florida Water Management District.

BAKER, MOSES, Jr., Associate Judge.

Appellant, Norma Perdue, appeals a final order of the South Florida Water Management District (hereinafter "District") dismissing her amended petition seeking a formal administrative hearing to challenge two permits issued to T.J. Palm Associates by the District. We have thoroughly reviewed all aspects of the final order and have concluded that the District was well aware of and correctly applied the standards for administrative review of the administrative law judge's order. Accordingly, and for the reasons discussed below, we affirm the final order in all respects.

A. Factual Background

Appellee, T.J. Palm Beach Associates Limited Partnership (hereinafter "T.J."), is the developer of a 466.5 acre mixed use commercial and residential property located in the Village of Wellington, Florida. The project is known as Wellington Commons. T.J. received two Environmental Resource Permits from the District, the first being a conceptual permit and the second, a construction permit. The conceptual permit approved the overall master project design; however, it did not permit or allow any construction. The construction permit authorized actual construction and long-term maintenance for the project. Appellant's challenges to the issuance of these two permits forms the basis for this appeal.

The record reveals the District published the following legal notice in the November 21, 1996, edition of The Palm Beach Post:

Interested persons may comment upon the application or submit a written request for a copy of the staff report containing proposed agency action regarding the application by writing to the South Florida Water Management District, Atten: Regulation Department, P.O. Box 24680, West Palm Beach Florida XXXXX-XXXX. But such comments or request must be received by 5 o'clock p.m. within 20 days from the date of publication. No further public notice will be provided regarding this application. A copy of the staff report must be requested in order to remain advised of further proceedings. Substantially affected persons are entitled to request an administrative hearing regarding the proposed agency action by submitting a written request therefor after reviewing the staff report.

After publication of the aforementioned notice, on January 16, 1997, the District issued the conceptual permit to T.J. for its Wellington Commons project during a regular District Governing Board meeting. The record reflects that appellant attended this particular meeting of the District Governing Board.

The record also reflects that the conceptual permit incorporated by reference a copy of the District's Staff Report dated December 31, 1996. The Staff Report contained a copy of District Form No. 0300 entitled, "Notice of Rights." The Notice of Rights, stated the following inter alia:

Petitions for administrative hearing on the above application must be filed within fourteen (14) days of actual receipt of this Notice of Proposed Agency Action. Failure to file a petition within this time period shall constitute a waiver of any rights such person may have to request an administrative determination (hearing) under section 120.57, Florida Statutes, concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal.

(emphasis added). The Notice of Rights also contained a paragraph repeating portions of Florida Administrative Code Rule 40E-1.521, specifying the time frame for filing a petition and what an acceptable petition requesting a formal administrative hearing should contain.

On January 21, 1997, appellant went to the District's office and read and copied the conceptual permit file. Ten days later, on January 31, 1997, appellant asked her friend Gail Stern to go to the District's office to file a petition challenging the conceptual permit. However, appellant did not give Stern a written petition to file, as neither she nor Stern had memorialized the petition. The record is clear that no petition of any kind challenging the conceptual permit was filed on January 31, 1997.

In fact, appellant did not file a petition until May 12, 1997, in which she specifically referenced T.J.'s application for the construction permit. The District found appellant's initial petition deficient and dismissed it on May 15, 1997, with leave to amend.

Thereafter, the District issued the construction permit to T.J. on May 15, 1998. The construction permit authorized T.J. to commence site preparation activities such as the partial clearing, demucking and the filling of wetlands and other surface waters. The District had previously considered and conceptually approved these activities in connection with its issuance of the conceptual permit.

On May 29, 1997, appellant filed her Amended Petition. The Amended Petition's only direct reference to the construction permit is a reference to Application No. 970220-6, which is the application for the construction permit. Furthermore, the Amended Petition states in the third paragraph that the application being challenged is for construction of a project described as Wellington Commons. However, the allegations of material fact contained in the Amended Petition only challenged the District's action in issuing the conceptual permit. In short, the Amended Petition alleges that the project would adversely affect water quality and quantity as well as conservation of wildlife, including endangered and/or threatened species. Also, the Amended Petition disputes the project's mitigation offsets, direct environmental impacts and whether the project meets the public interest test.

T.J., on June 10, 1997, filed a Motion in Opposition to the Amended Petition on the grounds that (1) it was untimely if considered to apply to the conceptual permit, which the District had issued on January 16, 1997, and (2) that the Amended Petition contained no disputed issues of material fact which the District had jurisdiction to resolve because all of the issues of material fact alleged in the Amended Petition had already become final agency action with the issuance of the conceptual permit, and thus had already been determined adversely to appellant. Furthermore, T.J. argued that the District was without jurisdiction to relitigate what had already become final agency action.

In her response to T.J.'s Motion in Opposition to the Amended Petition, appellant contended that the Amended Petition should be considered to have been timely filed on January 31, 1997 and accordingly should be sent to the Division of Administrative Hearing for a formal hearing. In support of this position appellant alleged the following in her Response:

(3) Petitioner, ... attempted to file her PETITION to challenge the Conceptual Permit on or around January 31, 1997 by delivering a copy of the petition. (4) Petitioner's efforts to perfect her filing of her Petition were denied by the clerk. The clerk refused to accept the filing of the Petition erroneously claiming that the petition was untimely filed .... [N]otwithstanding the clerk's erroneous understanding of what constitutes timely filing, the clerk exceeded his or her non-discretionary, ministerial powers in refusing to accept the petition.

(5) In effect, Petitioner completed her filing of the petition on January 31, 1997.

Appellant further argued in her Response that the filing and service of her initial Petition was deemed complete upon the District clerk's receipt of the original document. The Response further alleged that Gail Stern, the Petitioner's agent, delivered the petition to the District on January 31, 1997, and the District clerk refused to accept the tender, in violation of District rules.

On June 12, 1997, the District's Governing Board decided to forward the Amended Petition to the Division of Administrative Hearing (hereinafter "DOAH"). Following transmittal of the matter to the DOAH, T.J. filed its Motion to Dismiss and Strike the Amended Petition and for an Award of Costs and Attorney's Fees against appellant.

Moreover, appellant filed a Motion and an Amended Motion for an Order Nunc Pro Tunc to Correct Clerical Mistake seeking in effect to have the Amended Petition's challenge to the conceptual permit treated as if it had been timely filed on January 31, 1997. In her Verified Response filed on July 2, 1997, appellant stated the following:

Petitioner's amended petition sets forth a properly pled challenge to the conceptual permit. Petitioner, relying upon the clerk's action in preventing her agent from filing her original petition to challenge the conceptual permit, waited for another point of entry to file said petition. This point of entry arrived when Respondent South Florida Water Management District issued its construction permit for the aforereferenced conceptual permit.

A three-hour evidentiary administrative hearing was held on August 26, 1997 before the Division of Administrative Hearings. Appellant and Ms. Stern testified on behalf of appellant and Ms. Martin testified on behalf of the District. Following the hearing, the Administrative Law Judge filed with the District a Recommended Order of Dismissal in which she found that Perdue had received actual notice of the conceptual permit on January 21, 1997 and knew that she only had fourteen days, or until February 4, 1997, to file a petition with the District. Despite the allegations in the Amended...