Save Anna Maria, Inc. v. Department of Transp.

Decision Date08 October 1997
Docket NumberNo. 96-02258,96-02258
Citation700 So.2d 113
Parties22 Fla. L. Weekly D2382 SAVE ANNA MARIA, INC., Appellant/ Cross-Appellee, v. DEPARTMENT OF TRANSPORTATION and Department of Environmental Protection, Appellees/ Cross-Appellants.
CourtFlorida District Court of Appeals

David M. Levin and Andrew K. Fritsch of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, Sarasota, for Appellant.

Pamela S. Leslie and Marianne A. Trussell, Tallahassee, for Appellee Department of Transportation.

Robert G. Gough, Tallahassee, for Appellee Department of Environmental Protection.

FRANK, Judge.

In this case, both the Department of Transportation (DOT) and an environmental group, Save Anna Maria, Inc. (SAM), have challenged the decision of the Department of Environmental Protection (DEP) to deny DOT a dredge and fill permit to build a new bridge over Sarasota Pass from Bradenton to Anna Maria Island. SAM contends that the DEP's decision was erroneous as to the public interest criteria and fears that, left unchallenged, that decision will become res judicata when the issue is revisited in another day in court. DOT argues that the permit should have been issued because the department provided reasonable assurance that water quality standards would not be violated by the building of the new bridge. We have reviewed all aspects of the final order and conclude that both challenges must fail because the agency was well aware of and correctly applied the standards for administrative review of the hearing officer's order.

In 1992, the Department of Transportation proposed building a new bridge to Anna Maria Island. Thus, DOT applied for a dredge and fill permit to replace the existing bascule bridge with a high-level, fixed-span bridge just south of the existing bridge. DOT negotiated for several months with the Department of Environmental Protection, which issued a notice of permit denial in February of 1993. DEP's concern was that the proposed bridge would have a detrimental impact upon the seagrass nursery areas and productive shallow bottom areas. DOT continued its negotiations with DEP, however, and in spite of the issuance of the notice of permit denial, DEP approved the project and issued an intent to issue a dredge and fill permit for the proposed project on May 2, 1995.

Robert Van Wagoner and Save Anna Maria, Inc. then entered the fray, challenging the intent to issue and commencing administrative action. Their consolidated cases were heard at a final hearing that began on December 4, 1995. The hearing officer issued a recommended order on February 16, 1996, proposing denial of the permit. The hearing officer found that DOT failed to provide DEP with reasonable assurance that the project was clearly in the public interest as required by section 403.918(2), Florida Statutes (1991), and further found that DOT failed to provide reasonable assurance that the project would not degrade existing ambient water quality as required by rule 62-4.242(2)(a), Florida Administrative Code.

On May 14, 1996, DEP issued a final order that denied the DOT's dredge and fill permit. Rather than adopting all of the hearing officer's recommendations, the DEP rejected the hearing officer's findings with respect to the public interest and found that the DOT did in fact provide reasonable assurance that the proposed project was clearly in the public interest. Because the DOT failed to provide reasonable assurance that water quality standards would not be violated, however, the permit was denied.

The ensuing appeal has reached us in an unusual procedural posture. Although prevailing in the agency action, SAM filed a notice of appeal. DOT, the aggrieved party, then cross-appealed. Thus, our first consideration is whether SAM's appeal should be permitted. This is not an easy question to answer. The general rule is that parties cannot file proceedings to review an order of judgment in their favor. See Employers Fire Ins. Co. v. Blanchard, 234 So.2d 381 (Fla. 2d DCA 1970). In dismissing a petition for common law certiorari, the Blanchard court observed:

Peculiarly enough, however, petitioners here are asking us to review and quash an order which was actually in their favor, namely, an order granting their motion to dismiss the amended complaint. It is true that some of the grounds of the motion to dismiss were denied, but one ground of substance was upheld; so the force and impact of the order entered, as well as the express language of it, was to dismiss the amended complaint. This was precisely, and all, that was sought by the motion to dismiss.

234 So.2d at 382. Under the reasoning of Blanchard, SAM has no standing to pursue an appeal in this case. SAM sought to block the building of a new bridge to Anna Maria Island and received precisely that relief.

On the other hand, SAM urges the view as expressed in State Rd. Dep't of Florida v. Zetrouer, 105 Fla. 650, 652, 142 So. 217, 218 (Fla.1932): "The mere fact that a litigant secures a judgment in his favor does not necessarily mean that there may not be some aspect of said judgment at which he would be aggrieved and which would present grounds for review by an appellate court." Thus, when a judgment is not wholly in a party's favor, that party may seek appellate review. See Katz v. Red Top Sedan Serv., Inc., 136 So.2d 11 (Fla. 3d DCA 1962). Res judicata and collateral estoppel concerns were addressed in this context in General Dev. Utilities, Inc. v. Florida Pub. Service Comm'n, Div. of Admin. Hearings, 385 So.2d 1050 (Fla. 1st DCA 1980). Although in that case, which involved rule-making, the court found that the appellants were not aggrieved parties and dismissed the appeal, the court did note that the hearing officer's findings on certain statutory and constitutional issues were immaterial to the decision and thus could not be a basis for a claim of res judicata or collateral estoppel. In so stating, however, the court did not hold outright that those concerns could never be a basis for appeal by a party who prevailed on the agency level. On balance, these authorities compel the conclusion that SAM should be permitted to prosecute this appeal.

SAM contends that the DEP erred, first, by its refusal to accept the hearing officer's factual finding that DOT's proposed seagrass mitigation plan did not meet the DEP's established mitigation criteria, and, second, by rejecting the hearing officer's finding that there would be significant environmental impact from direct discharge of stormwater into Anna Maria Sound, an outstanding Florida water. We reject both of those arguments, as well as other issues raised by SAM that do not merit discussion.

The burden of showing entitlement to a dredge and fill permit is on the applicant, DOT. See Department of Transp. v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). Under rule 62-312.060(10), Florida Administrative Code, the DEP is required to determine "whether or not the application, as submitted, meets the criteria contained in Sections 403.918(1) and (2)(a)1.-7. and 403.919, F.S." Section 403.918, Florida Statutes (1991), provides in pertinent part:

(1) A permit may not be issued under 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated.

(2) A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.

(a) In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:

1. Whether the project will adversely affect the public...

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    • Court of Appeal of Florida (US)
    • February 10, 2009
    ...offset the perceived adverse effects of the dredging and filling contemplated by the project"); see also Save Anna Maria, Inc. v. Dep't of Transp., 700 So.2d 113, 116 (Fla. 2d DCA 1997) ("The DEP has the exclusive final authority to determine the sufficiency of the proposed ... mitigation."......
  • Fla. Wildlife Fed'n v. McCarthy
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    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • February 15, 2017
    ...rely on two state-court decisions, neither of which addresses the EPA's review of an impaired waters list. Save Anna Maria, Inc. v. Dep't of Transp., 700 So. 2d 113 (Fla. 2d DCA 1997); DeCarion v. Dep't of Envtl. Regulation, 445 So. 2d 619 (Fla. 1st DCA 1984).3 With the exception of the iss......
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    ...1983) (quoting E.N. Watkins & Co., Inc. v. Bd. of Regents, 414 So. 2d 583, 588 (Fla. 1st DCA 1982)). Save Anna Maria, Inc. v. Department of Transportation, 700 So. 2d 113 (Fla. 2d DCA 1997), relied upon by Friends of Perdido Bay and Lane, is distinguishable. In that case, the Department of ......
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    • United States
    • Court of Appeal of Florida (US)
    • October 4, 2002
    ...the order was not wholly favorable to them. See Katz v. Red Top Sedan, 136 So.2d 11 (Fla. 3d DCA 1962); Save Anna Maria, Inc. v. Department of Transp., 700 So.2d 113 (Fla. 2d DCA 1997). We affirm the trial court's dismissal for failure to prosecute and reverse as to that portion of the orde......
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2 books & journal articles
  • The appellate decision-making process.
    • United States
    • Florida Bar Journal Vol. 80 No. 4, April 2006
    • April 1, 2006
    ...concerns is the question of whether a "party" has standing to bring an appeal. Save Anna Maria, Inc. v. Department of Transportation, 700 So. 2d 113 (Fla. 2d DCA 1997), discusses two lines of Florida case law on standing: One holding a party cannot appeal an order in its favor, and another ......
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    • United States
    • Florida Bar Journal Vol. 73 No. 5, May 1999
    • May 1, 1999
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