Rosenzweig v. Department of Transp.

• Decision Date: 25 March 2008
• Docket Number: No. 1D07-1373.,1D07-1373.
• Citation: 979 So.2d 1050
• Parties: Bruce ROSENZWEIG, Boca Raton Bicycle Club, and League of American Bicyclists, Appellants, v. DEPARTMENT OF TRANSPORTATION, Town of Ocean Ridge, Town of Gulf Stream, Town of Manalapan, South Palm Beach, and Palm Beach, Appellees.
• Court: Florida District Court of Appeals

979 So.2d 1050

Bruce ROSENZWEIG, Boca Raton Bicycle Club, and League of American Bicyclists, Appellants, v. DEPARTMENT OF TRANSPORTATION, Town of Ocean Ridge, Town of Gulf Stream, Town of Manalapan, South Palm Beach, and Palm Beach, Appellees.

No. 1D07-1373.

District Court of Appeal of Florida, First District.

March 25, 2008.

Rehearing Denied April 30, 2008.

Katherine E. Giddings and P. Bruce Culpepper of Akerman Senterfitt, Tallahassee; Jeffrey C. Lynne of Akerman Senterfitt, Ft. Lauderdale; and Lawrence D. Silverman of Silverman Cosgrove & Sammataro, Miami, for Appellants.

Alexis M. Yarbrough, General Counsel, and Robert B. Vanhorne, Assistant General Counsel, Department of Transportation, Tallahassee, for Appellee Department of Transportation; Kenneth G. Spillias of Lewis, Longman & Walker, P.A., West Palm Beach, for Appellees Town of Ocean Ridge, Town of Gulf Stream, Town of Manalapan, Town of South Palm Beach and Town of Palm Beach.

WOLF, J.

Appellants (Bruce Rosenzweig, Boca Raton Bicycle Club, and League of American Bicyclists) challenge a final order rendered by the Interim Secretary of the Department of Transportation (Department), appellee, which adopted the factual and legal findings of the hearing officer's Recommended Order. The order concluded that appellants did not have administrative standing to challenge the Department's implementation of section 335.065, Florida Statutes, and it interpreted section 335.065, Florida Statutes, as giving the Department almost absolute discretion in dispensing with bicycle lanes on state road projects. Although we find that appellants had standing to challenge the Department's implementation of section 335.065 in the State Road A1A project and we agree with appellants' interpretation of section 335.065, Florida Statutes, we are constrained to affirm the final order because appellants waived their right to go to a formal hearing before the Division of Administrative Hearings by not requesting a formal hearing at any time. Accordingly, we affirm the Final Order.

Facts

Appellants filed an amended administrative petition against the Department alleging that the Department failed to comply with statutory law and administrative rules pertaining to the design and placement of bicycle lanes in conjunction with the resurfacing, restoration, and rehabilitation of State Road A1A in Palm Beach County. The amended petition stated that petitioners did not know if there were disputed issues of material fact and also asserted that the cost of placing standard five-foot bicycle lanes throughout parts of the project would not be excessively disproportionate to the need or probable use of such. Because the amended petition did not identify any disputed issues of material fact, pursuant to section 120.57(2), Florida Statutes, an informal hearing was set for December 11, 2006.

On or about November 13, 2006, a petition to intervene was filed by the Town of Ocean Ridge, Town of Gulf Stream, Town of Manalapan, South Palm Beach, and Palm Beach (Intervenors). The Order Granting Intervention was filed on November 16, 2006.

An informal hearing took place before the Department's hearing officer on December 11, 2006. Appellants used their exhibits to argue the Department owns significant right-of-way in 90% of the State Road A1A project and that a five-foot bicycle lane along that right-of-way would be feasible. The Department, on the other hand, called the district consultant project manager, and he testified the Department considered several aspects of the project in determining that a five-foot bicycle lane would not be feasible. The project manager explained that the entire State Road A1A project was comprised of ten smaller projects beginning in Boca Raton and ending in Lake Worth. He explained which factors were considered by the Department in either establishing or not establishing bicycle lanes in each of the ten projects. Factors considered by the Department included: 1) whether a bicycle lane was pre-existing; 2) the number of developments with sidewalks; 3) the characteristic of the landscape, driveways, utilities, vertical drains; 4) the impact on private facilities; 5) the presence of the statutorily protected Australian pines; 6) Resolution 5402 (entered into by several towns affected by the State Road A1A project); 7) the ocean and ocean levels; and 8) the narrowness of the available right-of-way. The project manager further testified the Department conducted a cost-benefit analysis and also considered the crash data available.

At no point during the informal hearing did appellants notify the hearing officer that there was a disputed issue of material fact requiring the case to be transferred to the Division of Administrative Hearings (DOAH).

The hearing officer filed a Recommended Order on February 26, 2007, concluding appellants did not have administrative standing to challenge the Department's actions, and it also concluded that section 335.065, Florida Statutes, gives the Department discretion to implement the statute and does not require bicycle lanes and pedestrian ways to be established above all other concerns.

Standing

Whether appellants have standing to challenge the Department's implementation of section 335.065, Florida Statutes, is a question of law. The standard of review of an agency decision based upon an issue of law is whether the agency erroneously interpreted the law and, if so, whether a correct interpretation compels a particular action. Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 847 (Fla. 1st DCA 2002) (citing § 120.68(7)(d), Fla. Stat. (1997)).

Section 120.52(12)(b), Florida Statutes, provides that a party to an administrative proceeding is "any person ... whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party." Substantial interests are demonstrated if: 1) the party will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) the party's substantial injury is of a type or nature which the proceeding is designed to protect. Agrico Chem. Co. v. Dep't of Envtl. Regulation, 406 So.2d 478, 482 (Fla. 2d DCA 1981); see also Envtl. Confederation of Sw. Fla., Inc. v. IMC Phosphates, Inc., 857 So.2d 207, 209 (Fla. 1st DCA 2003) ("[A]n organization must show that it will suffer an injury in fact or that the action of the agency will adversely affect its individual members."). The first aspect of the test deals with the degree of injury; the second deals with the nature of the injury. Agrico, 406 So.2d at 482.

The Department argues that appellants do not have standing and supports this position by citing to several cases where taxpayers challenged the decision of a legislative body to make an expenditure. However, while in taxpayer cases the strict rules for standing have been established to limit unwarranted use of judicial resources in challenges involving discretional decisions of legislative bodies, one of the major legislative purposes of the Administrative Procedure Act was the expansion of public access to the activities of governmental agencies. Fla. Home Builders Ass'n v. Dep't of Labor, 412 So.2d 351, 352-53 (Fla. 1982) (allowing builders' association the opportunity to represent the interests of its injured members in a rule challenge).

In NAACP, Inc. v. Florida Board of Regents, the supreme court was asked to determine whether the NAACP had standing to challenge a rule amendment concerning admissions to the State University System. 863 So.2d 294, 295 (Fla.2003). Specifically, the rule amendments concerned the elimination of certain affirmative action policies by Florida's state universities. Id. This court, in NAACP, Inc. v. Florida Board of Regents, 822 So.2d 1, 14 (Fla. 1st DCA 2002), had previously found the organization did not have standing, but certified the question as one of great public importance.

The supreme court applied the "associational standing" analysis discussed in Florida Home Builders, 412 So.2d at 352, to the facts before them. NAACP, 863 So.2d at 297. They reiterated that the purpose of the Administrative Procedure Act was to expand rather than restrict public participation in the administrative process. Id. at 298. Accordingly, the supreme court enunciated the following:

To meet the requirements of section 120.56(1), an association must demonstrate that a substantial number of its members, although not necessarily a majority, are "substantially affected" by the challenged rule. Further, the subject matter of the rule must be within the association's general scope of interest and activity, and the relief requested must be of the type appropriate for a trade association to receive on behalf of its members.

Id. (citing Fla. Home Builders, 412 So.2d at 353-54.) Pursuant to this test, the supreme court found that the NAACP had standing to challenge the proposed rules as the proposed rules would drastically change the state university admission standards that applied to African-Americans and other minority students. Id. at 299. The supreme court further stated: "the cost of instituting and maintaining a rule challenge proceeding may be prohibitive" for the NAACP's members, who are often poor and unable to maintain individual rule challenges. Id. (citing Fla. Home Builders, 412 So.2d at 353).

Considering the APA's policy, the supreme court's decision in NAACP, and the factors enunciated in Agrico, it is clear that if anyone has the ability to challenge the Department's interpretation of section 335.065, which specifically relates to bicycle lanes, it would be those seriously involved in bicycling.

Under the first prong of the Agrico test, appellants will suffer an injury of sufficient immediacy entitling them to a 120.57 hearing. Agrico, 406 So.2d at 482. This is clear because they will not have a delineated path on which to ride their bicycles if bicycle lanes are not constructed pursuant...