Petition for Writ of Certiorari to Review
Quasi-Judicial Action, Agencies, Boards, and Commissions for Local Government: Zoning—Procedural Due Process—Quasi-judicial proceeding
affords procedural due process if all parties are provided notice and an opportunity
to be heard--Although public authority should not have allowed city official to
speak after closing public hearing without according same opportunity to
citizen, citizen’s due process rights were not violated because he had adequate
notice, had submitted numerous documents to the authority in support of his
position, and had ample opportunity to inform the authority of the issue on
which he would have spoken. Ross v.
Petition for Writ of Certiorari to Review
Quasi-Judicial Action, Agencies, Boards, and Commissions for Local Government: Zoning—Substantial Competent Evidence—In determining
whether authority’s decision was supported by substantial, competent evidence,
court cannot reweigh conflicting evidence—record established that, despite
conflicting evidence, authority’s decision was based upon substantial,
competent evidence. Ross v.
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 03-5031AP-88B
AND NAVIGATION CONTROL
This matter is before the Court on the Second Amended Petition for Writ of Certiorari, the Response and the Reply. Upon consideration of the same and being otherwise fully advised, the Court denies the Petition as set forth below.
April of 2000, the City of Tarpon Springs, Florida (City), filed an application
with the Pinellas County Water and Navigation Control Authority (Authority) for
approval to dredge 11 locations in and around the
At about the same time, the City also filed requests to obtain similar approval from the Florida Department of Environmental Protection (FDEP) and the Army Corps of Engineers (ACOE), both of which had concurrent jurisdiction over the waterways in question. After both of these entities raised environmental concerns, the City significantly changed its original plans to address those concerns.
Petitioner Henry Ross (Ross), a long-time resident of Tarpon Springs who navigated the subject waterways for personal and commercial fishing as well as sponge-diving, filed objections to the proposed dredging with both the FDEP and the Authority. In particular, he claimed that the dredging would disturb vegetation, marine life, and wildlife.
Through a series of procedural twists and turns, Ross’ objections to the FDEP’s issuance of a permit were still pending before the Division of Administrative Hearings when the Authority held a public hearing on the City’s application on April 1, 2003. At that hearing, the County’s Director of Environmental Management (Director) testified that the dredging plan had been changed significantly from its original course to address all environmental concerns raised. He also stated that the FDEP had released an Intent to Issue Permit and that the federal Fish and Wildlife Service had gone on record to state that the revised plan would not detrimentally affect manatees. Neither Ross nor any other opposition witness objected to the Director’s characterization of the agencies’ opinions.
Several residents spoke for or against the dredging project. Ross in particular pointed to a significant quantity of evidence he had submitted in opposition to the dredging, including reports regarding the fish habitat, manatees, and other environmental concerns.
Proponents, on the other hand, cited their inability to navigate the waterways due to silt deposits and the danger low water levels posed to the manatees and other aquatic life. They also stated their beliefs that the silt had not occurred naturally but instead was the result of a significant increase in construction in the area.
After several citizens had the opportunity to speak, the Authority chairman closed the public hearing. Immediately thereafter, however, she noted that she had neglected to ask the City if it wished to comment and invited its input. The City’s project manager then reiterated the significant changes the project had undergone and stated, “We do, in fact, have our DEP permit; we, in fact, have an Army Corps permit.” Further, when the Chairman asked if the DEP and Army Corps permits were based on the new plan, the project manager stated, “That’s correct; they have been issued.”
Ross then asked if he was permitted to make a comment, but the Chairman told him he could not because the public hearing had been closed. After asking a few additional questions of the Director, the Authority members voted unanimously to approve the dredging. After his request for rehearing was denied, Ross filed the present petition.
reviewing the administrative action taken by the Authority, this Court must
consider three factors: (1) whether Ross was afforded procedural due process;
(2) whether the Authority observed the essential requirements of the law; and
(3) whether the Authority’s action is supported by competent substantial
Ross claims that his due process rights were violated because, after the public hearing had supposedly closed, the Authority allowed a representative of Tarpon Springs to speak but did not allow him to challenge any of the representative’s statements. According to Ross, the representative spoke falsely when he said that the City already had a FEDP permit; and by accepting this statement as true and denying Ross the right to challenge it, the Authority denied Ross due process.
due process protections “vary with the character of the interests and the
nature of the process involved, . . . . [t]here is no single, inflexible test
by which courts determine whether the requirements of procedural due process
have been met.” Department of Law
Enforcement v. Real Property, 588 So. 2d 957, 960 (
quasi-judicial hearings in particular must observe “certain standards of basic
fairness” in order to afford the necessary due process, “the quality of due
process required . . . is not the same as that to which a party to a full
judicial hearing is entitled.”
While this Court does not take lightly the Authority’s reopening of testimony without giving the public an opportunity to respond, the record as a whole establishes that Ross was accorded procedural due process. Ross has never contended that notice was inadequate, and prior to the hearing he submitted approximately 30 documents to the Authority in support of his position. One of these documents was the FDEP’s Notice of Agency Position filed in the administrative matter, which indicated that Ross’ challenge to the FDEP’s proposed approval of the dredging project was still pending.
Further, Ross himself referred to the pending hearing, and the Director of Environmental Management stated that the FDEP had issued an intent to issue a permit—not an actual permit. Therefore, even if the City’s Planning Director misspoke about whether the FDEP had actually issued a permit, the record is clear that Ross had the opportunity to inform the Authority of his
challenge to the FDEP’s position. Further, the record establishes that as far as the FDEP was concerned, the project was acceptable. Consequently, this Court concludes that Ross was given notice and a meaningful opportunity to be heard by the Authority. Cf. id. at 1340-41 (even ex parte communication in quasi-judicial proceeding is not automatically prejudicial).
Ross claims that the Authority failed to observe the essential requirements of
the law because it did not require proof from the City that its request to use
sovereign submerged lands complied with pertinent
While the Pinellas County Land Development Code (Code) does require a dredging applicant to show “satisfactory evidence of title or extent of interest . . . to . . . submerged ownership,” § 166-357(8), there is no indication that the only way in which an applicant can satisfy this provision is by showing that it also satisfies the state’s authorization criteria. On the contrary, other provisions requiring applicants to submit copies of applications filed with the FDEP and the ACOE indicate a recognition in the Code that while it is helpful for the Authority to know what steps the applicant has taken to obtain approval from all the relevant agencies, it may not always be practical for the Authority to wait until the other agencies have acted.
Regarding “satisfactory evidence of interest,” the City submitted the FDEP’s Intent to Grant Sovereign Submerged Lands Authorization, which stated that the Department intended to grant a public easement for the dredging on state-owned lands and consent to the dredging of the remainder of the land upon receipt or approved waiver of the appropriate fees. As this document
indicates that the FDEP had determined that the City met the requirements for state authorization, certainly the Authority was entitled to rely upon this document as satisfactory evidence of interest. Therefore, the Authority did not fail to observe the essential requirements of the law.
Ross contends that the Authority lacked substantial, competent evidence to
support its grant of the permit. In DeGroot
The Code sets forth nine criteria the Authority must examine before issuing a permit:
1. Would the project have a detrimental effect on the use of such waters for navigation,
transportation, recreational or other public purposes and public conveniences?
2. Would the project restrict the free use of the waterways and navigable waters?
3. Would the project have a material adverse effect upon the flow of water or tidal
currents in the surrounding waters?
4. Would the project have a material adverse effect upon erosion, erosion control,
shoaling of channels, or would the project be likely to adversely affect the water
quality presently existing in the area or limit progress that is being made toward
improvement of water quality in the area?
5. Would the project have a material adverse effect upon the natural beauty and
recreational advantages of the County?
6. Would the project have a material adverse effect upon the conservation of wildlife,
marine life, and other natural resources, including beaches and shores, so as to be
contrary to the public interest?
7. Would the project have a material adverse effect upon the uplands surrounding or
necessarily affected by such plan or development?
8. Would the project have a material adverse effect upon the safety, health and welfare
of the general public?
9. Would the project be in conflict with the adopted state plans (i.e., manatee
protection, SWIM plans), the County and municipal comprehensive plans, other
formally adopted resource recovery and management plans, or any other County
ordinances or regulations?
§ 166-358. Further,
if any of these criteria are answered affirmatively, the permit must be denied
Ross claims that the Authority lacked substantial, competent evidence to answer numbers 4, 5, 6 and 9 in the affirmative because it ignored compelling evidence that the dredging project would detrimentally affect water quality, wildlife and marine life, and plant species. However, a review of the record in this matter establishes that the Authority had ample evidence that environmental concerns were adequately addressed. For example, the United States Fish and Wildlife Service expressed its opinion that the manatee population would not be harmed as long as standard precautions were implemented, and these precautions were made a part of the ACOE and proposed FDEP permits.
sea grasses, the Authority’s staff report noted that only one area of dredging
contained intermittent grasses and that the dredging would have only a minor
impact on such vegetation. See generally ABG Real Estate Dev. Co. v.
Finally, concerning water quality, Ross complains that the City did not conduct an adequate water quality review upon which the Authority could base a competent decision. However, as the Authority correctly notes, the Code does not mandate any particular methodology for a review. Additionally, the County’s Director testified that although turbidity might increase in the short term, in the long term the dredging project would reduce turbidity.
Further, the permit issued by the Authority specifically requires “immediate corrective action should turbidity problems occur outside of the dredge or spoil area.” Therefore, the Authority once again had competent evidence before it that water quality would not suffer overall if the dredging project went forward.
Court notes that Ross submitted a substantial amount of documentation from
various sources running contrary to the findings of the Authority. However, the relevant inquiry is not whether
the Authority could have reached a
different conclusion, but rather whether the conclusion it did reach was
supported by competent, substantial evidence.
In conducting this inquiry, this Court “above all cannot reweigh the
‘pros and cons’ of conflicting evidence.”
Dusseau v. Metropolitan Dade Co. Bd. of
Therefore, it is
ORDERED AND ADJUDGED that Petitioner Henry Ross’ Second Amended Petition to Issue Writ of Certiorari is DENIED.
DONE AND ORDERED in Chambers, at
DAVID A. DEMERS
Circuit Judge, Appellate Division
Jewel White Cole, Esq.
315 Court Street
 The record does not indicate if Ross filed any objections with the ACOE.
 In the
FDEP matter, the Division of Administrative Hearings had initially dismissed
Ross’ complaint as a sanction for discovery violations; however, the Second
District Court of Appeals reversed, finding that Ross had received insufficient
notice of the hearing at which his complaint was dismissed. See Ross v. City of
 See Code §§ 166-357(9), (11).
 Ross also claims that various provisions of § 166-281 of the Code have also not been satisfied. However, as the provisions of § 166-281 are virtually identical to those in § 166-358, this Court shall not consider them separately.