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Thomson v. State, Department of Environmental Regulation

493 So. 2d 1032, 11 Fla. L. Weekly 1017, 1986 Fla. App. LEXIS 7622
CourtDistrict Court of Appeal of Florida
DecidedMay 1, 1986
DocketNos. AZ-337, BD-330
StatusPublished
Cited by2 cases

This text of 493 So. 2d 1032 (Thomson v. State, Department of Environmental Regulation) 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
Thomson v. State, Department of Environmental Regulation, 493 So. 2d 1032, 11 Fla. L. Weekly 1017, 1986 Fla. App. LEXIS 7622 (Fla. Ct. App. 1986).

Opinions

WENTWORTH, Judge.

Appellants seek review of an administrative order by which the Department of Environmental Regulation (DER) denied an application for a construction permit. Finding the doctrine of administrative res judicata to be applicable, DER determined that there were no disputed issues of material fact and declined to provide appellants with a formal section 120.57(1), Florida Statutes, hearing. We conclude that DER did not err in this regard, and we affirm the order appealed.

Appellants applied to DER for a permit to construct a 36 foot octagonal platform, and a 92 foot walkway, supported by pilings in waters over submerged land abutting the intracoastal waterway at Jupiter Island Cove. Noting that the proposed project would be within the Loxahatchee River-Lake Worth Creek Aquatic Preserve, an outstanding Florida water, DER issued a notice of intent to deny the permit application. In its notice of intent DER indicated that the proposed project would result in the shading of seagrasses to the detriment of the detrital food web, significantly interfere with the conservation of fish and wildlife, and adversely impact water quality standards and marine habitats and soils.1 Appellants did not seek an ad[1034]*1034ministrative hearing and DER thus entered a final order adopting the findings and conclusions recited in the notice of intent, and denying the permit application.

After modifying the platform design and slightly extending the proposed walkway appellants submitted another application for a permit. Drawings which accompanied the application suggest that the redesigned platform would not be located directly above any existing seagrass. DER issued a notice of intent to deny this new application, stating that the platform and walkway “will be located over and near marine bottom capable of supporting seag-rasses.” The notice of intent reiterated DER’s earlier position, and advised that should appellants seek an administrative hearing “the petition should address the res judicata aspects of this denial.” Appellants petitioned for a hearing, asserting that the proposed modifications preclude application of the res judicata doctrine, and alleging that disputed issues of material fact exist regarding the impact of the project on water quality and marine habitat. DER declined to grant a formal section 120.57(1) fact-finding hearing, offering an informal section 120.57(2) hearing instead, and ultimately entered a final order which denied a permit for the modified project, applying the doctrine of res judica-ta..2

Appellants argue that res judicata should not apply because they did not receive an administrative hearing on their initial permit application. A fair opportunity to be heard is generally an element of the procedural due process necessary for the applicability of the doctrine of administrative res judicata. See Coral Reef Nurseries Inc. v. Babcock Co., 410 So.2d 648 (Fla. 3d DCA 1982). But it is the opportunity to be heard, rather than an actual hearing, which is critical. Cf., Litt v. Jarson, 97 So.2d 46 (Fla.Sd DCA 1957). In the present case appellants received formal notice that they might obtain a hearing upon their initial permit application by filing a timely request. Appellants were thereby afforded a fair opportunity for a hearing, and the conclusive effect of DER’s initial adjudication is thus not vitiated by appellants’ decision not to request a hearing.3

Appellants also argue that res judi-cata should not apply because the second permit application was based upon a modified platform design. In its final order DER acknowledged that the proposed platform was no longer located directly above [1035]*1035existing seagrass, but noted that it was nevertheless only two feet from the grassbeds. Indicating that the initial permit denial was also predicated upon affected water quality criteria, DER determined that the design modification “is not significant, and the circumstances are otherwise unchanged.” We conclude that in the circumstances presented DER was not pre-eluded from applying the doctrine of res judicata merely because of minor design modifications to the proposed platform, inasmuch as the affected water quality standards, and conservation interests which served as an independent basis for the initial permit denial, were considered as impacted by the project in its entirety.4

The order appealed is affirmed.

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Related

1800 Atlantic Developers v. Department of Environmental Regulation
552 So. 2d 946 (District Court of Appeal of Florida, 1989)
Thomson v. Dept. of Environmental Reg.
511 So. 2d 989 (Supreme Court of Florida, 1987)

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Bluebook (online)
493 So. 2d 1032, 11 Fla. L. Weekly 1017, 1986 Fla. App. LEXIS 7622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomson-v-state-department-of-environmental-regulation-fladistctapp-1986.