Save Anna Maria, Inc. v. Department of Transp., 96-02258

• Court: Court of Appeal of Florida (US)
• Citation: 700 So.2d 113
• Docket Number: No. 96-02258,96-02258
• Parties: 22 Fla. L. Weekly D2382 SAVE ANNA MARIA, INC., Appellant/ Cross-Appellee, v. DEPARTMENT OF TRANSPORTATION and Department of Environmental Protection, Appellees/ Cross-Appellants.
• Decision Date: 08 October 1997

Page 113

700 So.2d 113 22 Fla. L. Weekly D2382 SAVE ANNA MARIA, INC., Appellant/ Cross-Appellee,
v.
DEPARTMENT OF TRANSPORTATION and Department of Environmental Protection, Appellees/ Cross-Appellants. No. 96-02258. District Court of Appeal of Florida,
Second District. Oct. 8, 1997.

Page 114

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

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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...