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. Pinellas County Water & Navigation Control Auth., No. 03-5031AP-88B (Fla. 6th Cir. App. Ct. Apr. 14, 2005).

 

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. Pinellas County Water & Navigation Control Auth., No. 03-5031AP-88B (Fla. 6th Cir. App. Ct. Apr. 14, 2005).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

 IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

HENRY ROSS,

                        Petitioner,

 

vs.                                                                                Appeal No. 03-5031AP-88B

                                                                                    UCN 522003AP005031XXXXCV

 

PINELLAS COUNTY WATER

AND NAVIGATION CONTROL

AUTHORITY,

                        Respondent.

______________________________________/

 

ORDER DENYING SECOND AMENDED PETITION FOR WRIT OF CERTIORARI

 

            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.

            In 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 Anclote River.  The City maintained that such dredging was necessary to maintain existing navigational patterns.

            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.[1]  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.

            In 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 evidence.  Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).   As Ross has alleged violations as to all three factors, they will be considered in turn.

            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.

            Because 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 (Fla. 1991) (citations omitted).  Instead, courts must consider whether, under the circumstances, the opportunity to be heard was “meaningful, full and fair, and not merely colorable or illusive.”  Rucker v. City of Ocala, 684 So. 2d 836, 841 (Fla. 1st DCA 1996).

            While 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.”  Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 1st DCA 1991).  Generally, a quasi-judicial hearing affords participants due process if the parties are provided notice of the hearing and an opportunity to be heard.  Id.

            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,[2] 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).

            Second, 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 Florida constitutional, statutory, and administrative provisions.   However, the Authority is not obligated to determine whether the request was adequate because the authorization to use sovereign submerged lands must come from the State of Florida.  Fla. Const. Art. X. § 11; Fla. Stat. § 253.002 (2004); Fla. Admin. Code R. 18-21.0051.

            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[3] 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.

            Finally, Ross contends that the Authority lacked substantial, competent evidence to support its grant of the permit.  In DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957), the Supreme Court defined competent substantial evidence as that evidence “sufficiently relevant and material that a reasonable mind would accept it as adequate support the conclusion reached.”

            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 or modified.  Id.

            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.[4]  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. 

            Regarding 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. St. Johns County, 608 So. 2d 59, 62 (Fla. 5th DCA 1992) (staff report can constitutes strong evidence in land use cases).  Further, while the Florida Fish and Wildlife Commission did initially cite certain concerns for, inter alia, mangroves, oyster bars, and bird rookeries, the project was adjusted to meet these concerns and the Commission later withdrew any objection to the permit.

            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.

            This 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 Co. Comm’rs, 794 So. 2d 1270, 1276 (Fla. 2001).   The record in this matter establishes that the Authority had competent, substantial evidence before it upon which to base its granting of the permit.  Further, the Authority satisfied the essential requirements of the law and did not deny Ross due process.

            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 St. Petersburg, Pinellas County, Florida, this _______ day of ­­­­­­­­­­­­­­­­­­­­________________, 2005.

 

                                                                                    __________________________________

                                                                                    DAVID A. DEMERS

                                                                                    Circuit Judge, Appellate Division

 

Copies to:

 

Jewel White Cole, Esq.

Senior Assistant County Attorney

315 Court Street

Clearwater, FL  33756

 

Henry Ross

1005 S. Florida Ave.

Tarpon Springs, FL  34689

 

 

 

 

 



[1] The record does not indicate if Ross filed any objections with the ACOE.

[2] 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 Tarpon Springs, No. 2D01-114 (Fla. 2d DCA Dec. 21, 2001).  In the Notice of Agency Position filed by the FDEP in March, 2003, in connection with proceedings upon remand to the Division of Administrative Hearings, the FDEP stated, “The Petitioner’s right to challenge the issuance of the subject permit at the upcoming Administrative Hearing has not been jeopardized by the previous issuance of the permit” (emphasis added).  Thus, this notice indicates that at some point, the FDEP did actually issue a permit to the City, although Ross still had a right to challenge it.

[3] See Code §§ 166-357(9), (11).

[4] 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.