Sutton v. Department of Environmental Protection

• Decision Date: 19 May 1995
• Docket Number: No. 94-736,94-736
• Citation: 654 So.2d 1047
• Parties: 20 Fla. L. Weekly D1220 Helen C. SUTTON, Appellant, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, etc., Appellee.
• Court: Florida District Court of Appeals

Page 1047

654 So.2d 1047

20 Fla. L. Weekly D1220

Helen C. SUTTON, Appellant, v.DEPARTMENT OF ENVIRONMENTAL PROTECTION, etc., Appellee.

No. 94-736.

District Court of Appeal of Florida Fifth District.

May 19, 1995.

John H. Rains, III, and Joseph N. Tucker of Annis, Mitchell, Cockey, Edwards & Roehn, P.A., Tampa, for appellant.

Brain F. McGrail, Asst. Gen., Counsel and Keith C. Hetrick and Evelyn Golden, Asst. Gen. Counsel, Tallahassee, for appellee.

THOMPSON, Judge.

Helen C. Sutton timely appeals from a final order entered by the Department of Environmental Protection("DEP") dismissing a petition for declaratory statement.¹We affirm.

Sutton owns a home and several lots on a lagoon of Kings Bay in Citrus County.Kings Bay is part of the Crystal River, and both are designated as Outstanding Florida Waters.SeeFla.Admin.Code R. 62-302.700(formerly Fla.Admin.Code R. 17-302.700).Tana Hubbard, the owner of the adjacent property, has built a dock on the lagoon.Sutton filed a petition for declaratory statement with DEP seeking a determination as to whether the bottom of the lagoon of Kings Bay is sovereign submerged lands of the State of Florida and, if it is, whether it is subject to the requirements of rule 18-21.005 of the Florida Administrative Code with respect to the construction of docks.If the bottom of the lagoon is sovereign submerged lands of the State of Florida, Hubbard would be required to follow the permitting process and obtain a consent of use in order for her dock to be approved by DEP.DEP would then have to hold a hearing to determine whether to issue the consent of use in accordance with section 253.77, Florida Statutes(1993).Sutton, as a riparian owner of adjacent upland property, must receive notice of any hearing on Hubbard's consent of use application.Sec. 253.70,Fla.Stat.(1993).

DEP issued a final order dismissing the petition for declaratory statement without allowing Sutton to be heard.Subsequent to dismissing Sutton's petition, DEP filed a notice of agency statement that the dock was constructed on sovereign submerged lands of the State of Florida and that "the Board of Trustees of the Internal Improvement Trust Fund(Trustees) claims ownership of the submerged bottoms" whereupon the dock was built.Having made that determination, DEP notified Hubbard that she was required to comply with chapter 253 of the Florida Statutesandrule 18-21.005 of the Florida Administrative Code requiring her to obtain a consent of use from DEP.As this notice gave Sutton the relief she was requesting, her petition is moot and there is no need to issue a declaratory statement.

The purpose of a declaratory statement is to:

set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in [t]his particular set of circumstances only.

Sec. 120.565,Fla.Stat.(1993)(emphasis supplied).A declaratory statement cannot be issued for general applicability.Mental Health Dist. Bd., II-B v. Department of Health & Rehabilitative Servs., 425 So.2d 160(Fla. 1st DCA1983).Petitions for declaratory statements are similar to petitions for declaratory judgments, and appellate courts are guided by decisions issued under the declaratory judgments statute.Couch v. State, 377 So.2d 32, 33(Fla. 1st DCA...