601 Cuda Properties, LLC v. Monroe County Board of County Commissioners

Opinion

Third District Court of Appeal State of Florida

Opinion filed September 18, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D24-0118 Lower Tribunal No. 2023-066-DAO-ERP ________________

601 Cuda Properties, LLC, Appellant,

vs.

Monroe County Board of County Commissioners, et al., Appellees.

An appeal from the Governing Board of the South Florida Water Management District.

Smith/Hawks, Christopher B. Deem, and Barton Smith, for appellant.

Robert C. Glass (West Palm Beach), Cynthia L. Hall, Senior Assistant Monroe County Attorney, and Robert B. Shillinger, Jr., Monroe County Attorney, for appellees.

Before LOGUE, C.J., and EMAS and MILLER, JJ.

MILLER, J. 601 Cuda Properties, LLC (“Cuda”) appeals from the dismissal of its

petition requesting a formal administrative hearing on the issuance of an

environmental resource permit to Monroe County Board of County

Commissioners. South Florida Water Management District dismissed the

petition with prejudice on the grounds the challenged agency action further

granted proprietary authorization to use sovereignty submerged lands and

the request for hearing was not filed within 14 days of receiving notice, as is

required for notices of consolidated intent. See § 373.427(2)(c), Fla. Stat.

(2023) (“Any petition for an administrative hearing pursuant to ss. 120.569

and 120.57 must be filed within 14 days of the notice of consolidated intent

to grant or deny.”). In light of the fact that Cuda alleged in its petition that

“[o]n November 20, 2023, SFWMD notified Petitioner’s counsel by email of

the proposed Agency Action,” and the record reflects the petition was filed

within 18 days, falling within the 21-day window provided by Florida

Administrative Code Rule 28-106.111(2), rather than the 14 days required

under section 373.427(2)(c), Florida Statutes, we affirm the dismissal.

However, we reverse the “with prejudice” finding. Upon remand, Cuda may

file an amended petition adding the claim of equitable tolling and raising the

allegations regarding the nature of the permit at issue (which will govern

whether the filing falls under Rule 28-106.111(2) or section 373.427(2)(c)).

2 See § 120.569(2)(c), Fla. Stat. (2023) (allowing for “equitable tolling as a

defense to the untimely filing of a petition”); Machules v. Dep’t of Admin., 523

So. 2d 1132, 1134 (Fla. 1988) (explaining that equitable tolling applies “when

the plaintiff has been misled or lulled into inaction”).

Affirmed in part, reversed in part.