City of Bradenton v. Amerifirst Development Corp.

District Court of Appeal of Florida

City of Bradenton v. Amerifirst Development Corp.

582 So. 2d 166, 1991 Fla. App. LEXIS 6700, 1991 WL 125737

CourtDistrict Court of Appeal of Florida

DecidedJuly 10, 1991

DocketNos. 90-02784, 90-03505

StatusPublished

Cited by1 cases

This text of 582 So. 2d 166 (City of Bradenton v. Amerifirst Development Corp.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Bradenton v. Amerifirst Development Corp., 582 So. 2d 166, 1991 Fla. App. LEXIS 6700, 1991 WL 125737 (Fla. Ct. App. 1991).

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Opinion

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[167]*167ant 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The City cites D.E.R.’s intent to issue the special permit filed before that application was withdrawn.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the City could challenge all aspects of the project, even though the application for a special permit was later withdrawn and a general permit used in its place.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 Once the application was withdrawn, D.E.R.’s notice of intent became irrelevant since Amerifirst was no longer seeking to proceed under the special permit.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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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[167]*167ant 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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582 So. 2d 166, 1991 Fla. App. LEXIS 6700, 1991 WL 125737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-bradenton-v-amerifirst-development-corp-fladistctapp-1991.

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