THE CITY OF BRADENTON, A FLORIDA MUNICIPAL CORPORATION, APPELLANT,
v.
AMERIFIRST DEVELOPMENT CORPORATION, A FLORIDA CORPORATION, AND STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, APPELLEES

Fla. 2d DCA | 1991-07-10
Nos. 90-02784, 90-03505
DANAHY and ALTENBERND, JJ., concur.
582 So. 2d 166 Florida District Court of Appeal, Second District (1991) Positive Treatment
Cited by 2 cases

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Synopsis

The City of Bradenton challenged the Florida Department of Environmental Regulation's dismissal of its petition for a formal administrative proceeding regarding a boat ramp permit issued to Amerifirst. The court affirmed the dismissal, holding that once Amerifirst withdrew its special permit application in favor of a general permit, the City had no statutory point of entry to challenge the project administratively.


Holding

The court held that the City had no point of entry to challenge the project administratively once Amerifirst withdrew its special permit application. A project authorized by a general permit may be accomplished without agency action and without providing a third party a statutory opportunity to initiate an administrative contest.


Headnotes

[1] A project authorized by a general permit may proceed without agency action and without a point of entry for a third party to initiate an administrative contest.

[2] Withdrawal of an application for a special permit renders irrelevant any prior agency notice of intent to issue that permit.

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Key Quotes

“A project authorized by a general permit may be accomplished without agency action and without a point of entry for a third party to initiate an administrative contest.”

Establishes the legal principle that general permits do not provide the same statutory opportunities for third-party administrative challenges as special permits.

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Facts & Procedural History

Amerifirst Development Corporation filed for a special permit to construct a boat ramp and create a herbaceous wetland adjacent to the Braden River in…

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Opinion of the Court
SCHEB, Acting Chief Judge.

SCHEB, Acting Chief Judge.

The City of Bradenton challenges a final order of the Florida Department of Environmental Regulation (D.E.R.) dismissing its petition for a formal proceeding regarding issuance of a permit to Amerifirst for construction of a boat ramp. We affirm.

Amerifirst filed for a special permit to construct a boat ramp and to create a herbaceous wetland adjacent to Braden River in Manatee County. Thereafter, the City petitioned for a formal proceeding pursu ant to section 120.57(1), Florida Statutes (1989). Amerifirst then withdrew its application for a special permit and D.E.R. notified the City by a copy of its letter to Amerifirst that the project appeared to be qualified to use a general permit.

The City cites D.E.R.’s intent to issue the special permit filed before that application was withdrawn. In the notice, D.E.R. instructed Amerifirst to publish a notice under section 403.814, thus creating a point of entry for the City to challenge the special permit. The City argues that once D.E.R. required publication, the City could challenge all aspects of the project, even though the application for a special permit was later withdrawn and a general permit used in its place. We disagree. A project authorized by a general permit may be accomplished without agency action and without a point of entry for a third party to initiate an administrative contest. See § 403.814, Fla.Stat. (1989). Once the application was withdrawn, D.E.R.’s notice of intent became irrelevant since Amerifirst was no longer seeking to proceed under the special permit. Therefore, D.E.R. concluded that there was no point of entry for the City to challenge Amerifirst’s use of its general permit. While we do not find error in this determination, a further comment is in order. The City points out that Amerifirst’s boat ramp project is on the Braden River, which feeds Evers Reservoir, the City’s drinking water supply. The City alleges that since the project is upstream, the ramp will cause a degradation of water quality as a result of attendant traffic and increased pollutants. It contends there are disputed issues regarding expected violations of water quality standards and seeks to air the problems it apprehends.

We recognize that the municipality has a justifiable concern, as do all residents and governmental entities, in preserving water resources. Indeed, these concerns have achieved recognition in the state’s constitution. Art. II, § 7, Fla. Const.1968. In that connection, we note that the appellate docketing statement filed by the City indicates litigation is now pending in circuit court pertaining to accompanying issues. At oral argument, the City’s counsel advised that these proceedings have been stayed pending our decision in the instant case.

Accordingly, we emphasize that our af-firmance is without prejudice to the City to litigate in circuit court any issues concerning the proposed project which may adversely affect the public health and welfare. This relates specifically to the preservation and protection of water resources affecting the City’s drinking water supply.

DANAHY and ALTENBERND, JJ., concur.


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Citator

Cited By

  • …t did not err in denying the County’s petition for formal administrative hearing on the general permit notification for the storage areas. § 403.814, Fla.Stat. (1989). In City of Bradenton v. State of Florida, Department of Environmental Regulation, 582 So. 2d 166 (Fla. 2d DCA 1991), the court affirmed a final order dismissing the City’s petition for formal administrative hearing regarding issuance of a general permit to construct a boat ramp where the applicant withdrew its application for special permit aft…

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