Thomson v. State, Dept. of Environmental Regulation

• Decision Date: 01 May 1986
• Docket Number: BD-330,Nos. AZ-337,s. AZ-337
• Citation: 493 So.2d 1032,11 Fla. L. Weekly 1017
• Court: Florida District Court of Appeals
• Parties: 11 Fla. L. Weekly 1017 Paul & Ellen THOMSON, Appellants, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.

Page 1032

493 So.2d 1032

11 Fla. L. Weekly 1017

Paul & Ellen THOMSON, Appellants, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.

Nos. AZ-337, BD-330.

District Court of Appeal of Florida,

First District.

May 1, 1986.

Rehearing Denied Oct. 6, 1986.

Robert A. Routa, Roberts, Egan & Routa, Tallahassee, for appellants.

E. Gary Early, Asst. Gen. Counsel, State of Fla. Dept. of Environmental Regulation, for appellee.

WENTWORTH, Judge.

Appellants seek review of an administrative order by which the Department of Environmental Regulation (DER) denied an application for a construction permit. Finding the doctrine of administrative res judicata to be applicable, DER determined that there were no disputed issues of material fact and declined to provide appellants with a formal section 120.57(1), Florida Statutes, hearing. We conclude that DER did not err in this regard, and we affirm the order appealed.

Appellants applied to DER for a permit to construct a 36 foot octagonal platform, and a 92 foot walkway, supported by pilings in waters over submerged land abutting the intracoastal waterway at Jupiter Island Cove. Noting that the proposed project would be within the Loxahatchee River-Lake Worth Creek Aquatic Preserve, an outstanding Florida water, DER issued a notice of intent to deny the permit application. In its notice of intent DER indicated that the proposed project would result in the shading of seagrasses to the detriment of the detrital food web, significantly interfere with the conservation of fish and wildlife, and adversely impact water quality standards and marine habitats and soils. ¹ Appellants did not seek an administrative After modifying the platform design and slightly extending the proposed walkway appellants submitted another application for a permit. Drawings which accompanied the application suggest that the redesigned platform would not be located directly above any existing seagrass. DER issued a notice of intent to deny this new application, stating that the platform and walkway "will be located over and near marine bottom capable of supporting seagrasses." The notice of intent reiterated DER's earlier position, and advised that should appellants seek an administrative hearing "the petition should address the res judicata aspects of this denial." Appellants petitioned for a hearing, asserting that the proposed modifications preclude application of the res judicata doctrine, and alleging that disputed issues of material fact exist regarding the impact of the project on water quality and marine habitat. DER declined to grant a formal section 120.57(1) fact-finding hearing, offering an informal section 120.57(2) hearing instead, and ultimately entered a final order which denied a permit for the modified project, applying the doctrine of res judicata. ²

hearing and DER thus entered a final order adopting the findings and conclusions recited in the notice of intent, and denying the permit application.

Appellants argue that res judicata should not apply because they did not receive an administrative hearing on their initial permit application. A fair opportunity to be heard is generally an element of the procedural due process necessary for the applicability of the doctrine of administrative res judicata. See Coral Reef Nurseries Inc. v. Babcock Co., 410 So.2d 648 (Fla. 3d DCA 1982). But it is the opportunity to be heard, rather than an actual hearing, which is critical. Cf., Litt v. Jarson, 97 So.2d 46 (Fla.3d DCA 1957). In the present case appellants received formal notice that they might obtain a hearing upon their initial permit application by filing a timely request. Appellants were thereby afforded a fair opportunity for a hearing, and the conclusive effect of DER's initial adjudication is thus not vitiated by appellants' decision not to request a hearing. ³

Appellants also argue that res judicata should not apply because the second permit application was based upon a modified platform design. In its final order DER acknowledged that the proposed platform was no longer located directly above

                existing seagrass, but noted that it was nevertheless only two feet from the grassbeds.  Indicating that the initial permit denial was also predicated upon affected water quality criteria, DER determined that the design modification "is not significant, and the circumstances are otherwise unchanged."   We conclude that in the circumstances presented DER was not precluded from applying the doctrine of res judicata merely because of minor design modifications to the proposed platform, inasmuch as the affected water quality standards, and conservation interests which served as an independent basis for the initial permit denial, were considered as impacted by the project in its entirety. 4
                

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The order appealed is affirmed.

ERVIN, J., concurs.

ZEHMER, J., dissents with written opinion.

ZEHMER, Judge, dissenting.

This case illustrates how easily the rights of private citizens may become lost in the administrative process. The summary manner in which the Department of Environmental Regulation (DER) denied appellants a permit to construct a covered platform and walkway over submerged lands owned by them in state-regulated waters exalts administrative procedure over the substantive purpose of the statutes, which is to fairly, but not arbitrarily, protect the environment. DER has violated due process notions of fairness intended to be protected by the Administrative Procedures Act, chapter 120, Florida Statutes, by using the doctrine of res judicata to summarily deny appellant's application. This action was erroneous because disputed material issues of fact remained to be resolved in a section 120.57(1) formal hearing which, if resolved in appellants' favor, would render the defense of res judicata inapplicable.

I.

A detailed recitation of the facts is necessary to a clear understanding of the legal issues presented on this appeal.

A.

The appellants, Paul and Ellen Thomson, own land which lies east of the Intracoastal Waterway and adjacent to Jupiter Island Cove in Palm Beach County. In connection with a restaurant project under construction on the land, they applied to DER for a permit to construct, over submerged lands within the boundaries of their property, an octagonal platform dock with roof, measuring thirty-six feet across. This platform would be connected to the restaurant on the uplands by an eight-foot wide platform walkway through mangroves. The entire structure is to be made of wood and would be used by patrons to view the scenic beauty of the mangroves. No docking of boats is contemplated, and no issue regarding pollution by boats is involved. The application for permit was submitted on behalf of the Thomsons by their consulting engineers, Lindahl, Browning, Ferrari, Hellstrom, Inc., to comply with environmental protection requirements in chapters 253 and 403, Florida Statutes (1983). The record compiled by DER does not contain a copy of the complete application.

By letter dated October 14, 1983, DER communicated to the engineers its intent to deny the application "pursuant to Section 403.087 and 253.123, Florida Statutes (F.S.), and Sections 17-4.07 and 17-4.28(11), Florida Administrative Code (F.A.C.)" because:

The proposed roofed platform and walkway will be located over seagrasses. The resultant shading is expected to destroy those seagrasses which, as a base of a detrital food web, contribute to the commercial and recreational shellfish and fishing industry. Seagrasses also provide habitat and nursery grounds for many marine organisms, consolidate sediments and can improve water quality by removing nutrients from the water and reducing turbidity.

As a result of the above cited factors, degradation of water quality is expected. Specific State water quality standards in Sections 17-3.061 and 17-3.121, F.A.C., that would be affected by the completion of this project include the following:

Biological integrity--The Shannon-Weaver diversity index of benthic macroinvertebrates shall not be reduced to less than 75% of established background levels.

Transparency--The depth of the compensation point for photosynthetic activity shall not be reduced by more than 10% compared to the natural background.

Turbidity--Shall not exceed 29 Nephelomitric Turbidity Units (NTU's) above natural background.

Nutrients--In no case shall nutrient concentrations of a body of water be Furthermore, your project will result in the following effects to such an extent as to be contrary to the public interest and the provisions of Chapter 253, F.S.:

altered so as to cause an imbalance in natural populations of aquatic flora and fauna.

The proposed activity would be expected to interfere with the conservation of fish and wildlife to such an extent as to be contrary to the public interest, and will result in the destruction of natural marine habitats, grass for marine life, and established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life.

(Emphasis added.) The letter concluded with notice of the right to a section 120.57 hearing if the applicants were displeased with the decision. The only factual findings to support the conclusion of detrimental pollution effects are contained in the first paragraph, which describes direct shading on existing seagrasses.

By letter dated October 27, 1983, to Roy M. Duke of the Southeast Florida District Office of DER, the engineering firm acknowledged the letter of intent to deny and requested "a continuance in your consideration and actions on subject application" because:

We intend to present further detailed information and minor modifications which we believe may have significant bearing on your findings. In order to study potential minor modifications we request a copy of your field report and maps reporting your findings.

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