Florida Law Erodes Waterfront Property Rights

David Levin 15/04/2016

An amendment to Florida’s Administrative Procedure Act, HB 993 (“the Bill”) passed last week by the Florida Legislature significantly changes the ability of affected property owners, and especially waterfront property owners, to challenge the correctness of government agency decisions which substantially affect their property. Hailed as a boon to big business, the Bill has major adverse consequences for individual home owners seeking to protect their investment. The Bill severely restricts the ability of private third parties to contest the issuance of, among other things, State environmental permits for projects that may impact the quality and use of waterfront properties.

By way of background, it should be understood that most activities that have the potential of adversely affecting water quality, navigation, wildlife, beaches, and wetlands, require one or more permits or approvals from State agencies. The decision to issue or deny such permits or approvals is required to be based upon criteria established by State statute and administrative regulations.

For example, before the State may issue a permit for the construction of a boat dock, the applicant must provide through the application process “reasonable assurances” that the proposed project will not adversely affect seagrass, manatees, water quality, or navigation.

Typically, for example, permit applicants for boat docks provide very little information regarding potential impacts to navigation, particularly from a neighbor’s perspective. Furthermore, State agencies typically accept the information provided by the applicant at “face value”, and do not conduct their own investigation of a project’s potential navigational impacts.

Therefore, for example, if an applicant fails to present information regarding the existence of a navigation channel in close proximity to the proposed dock, and such proximity would adversely affect a neighbor’s ability to get his/her boat in and out of their existing or future dock, it is likely that the State would issue the requested dock permit.

Since 1975, the Florida Administrative Procedure Act has allowed “substantially affected parties” to request a formal administrative hearing to contest permitting decisions made by State agencies. At least since 1981, following the landmark decision in Florida Department of Transportation v. J.W.C., 396 So.2d 778 (Fla. 1 st DCA 1981), the Florida Administrative Procedure Act established a “level playing field” between the permit applicant, the State agency, and the affected third-party.

Upon the filing of a challenge requesting a formal administrative hearing, typically an independent administrative law judge would be assigned to conduct a trial-like proceeding wherein evidence and testimony is presented by all parties to determine whether or not the permit met the requirements of State laws and regulations. Additionally, the filing of a challenge converted the permit issuance from “final agency action” to “preliminary agency action”.

It has long been the understanding following the FDOT v. J.W.C that the administrative hearing to contest the issuance of a State permit was a “de novo” proceeding. In other words, “no presumption of correctness attaches to the Department’s preliminary approval”. The administrative hearing was viewed as a step in the “formulation”, not “appeal” of agency action.

At the hearing, the applicant was required to present witnesses and evidence to demonstrate that the proposed project met the applicable standards. The challenging third-party had the opportunity to cross-examine both the applicant’s and State’s witnesses to challenge the sufficiency and accuracy of the information presented in support of the application.

This right of third-parties to directly question the applicant’s expert witnesses is crucial to the administrative hearing process. I have won a number of major environmental permitting challenges on behalf of affected third-parties just on the strength of my cross-examination of the applicant’s witnesses.

Since most permit applicants do not think that their application will be challenged, applications frequently are not submitted with the level of detail that would be sufficient to withstand close scrutiny. The reason for this is that many State permit reviewers do not hold the applicant’s to the level of detail that is required by the statutes and regulations. Thus, shortcuts are taken by both the applicant’s consultants and State employees. I have also found that there are a number of environmental consultants who will falsify or report half-truths in the data presented in support of an application.

When, during the course of an administrative hearing, the work effort of applicant’s consultants and State employees is placed under the “spotlight”, frequently it will be found that the applicant did not provide the requisite “reasonable assurances” that the proposed project complies with the applicable requirements of law.

In the boat dock example given above, if the third-party challenger showed under cross-examination of the applicant’s witnesses that no investigation of the potential impact of the proposed dock upon navigation was conducted, the third-party challenger would be entitled to a Final Order denying the requested dock permit.

The Bill passed last week has clearly “tilted the playing field” in favor of permit applicants. Under the terms of the Bill, the proceeding before the administrative law judge is no longer a true “de novo” hearing. The agency’s action comes to the hearing with a presumption of correctness.

The applicant is no longer required to produce expert witnesses to support the correctness or accuracy of their work product contained in the application. The Bill states that the applicant may merely submit the application and supporting documents to show “prima facie” entitlement to the requested permit. Accordingly, the third-party objector is denied the opportunity for cross-examination of the authors of the information submitted to the State.

Under the Bill, the responsibility falls squarely upon the shoulders of the affected third-party to hire experts to conduct the studies either not performed by the applicant, or performed in an incomplete or inaccurate manner. This is a very costly and unfair burden.

The State’s environmental agencies were created by statute to protect the environment and private property. These agencies are funded by taxes paid by private property owners. Private property owners should not be required to pay even more as a consequence of the failure of State agencies to do the work they have been tasked to do.

If State agencies do not have the resources to thoroughly review the information provided in support of an application, or to conduct independent studies to verify the completeness or accuracy of applications, reason dictates that it should be the responsibility of the applicant to justify the facts or conclusions specified in its application.

The Bill, however, expressly benefits the applicant to the clear detriment of third-party property owners, by allowing the applicant to demonstrate prima facie entitlement to the requested permit or authorization simply by submitting into evidence the application, materials submitted in support of the application, the State agency’s report, and the agency’s written intent to issue the requested authorization.

To make matters worse, this major change in long-standing protections for private property owners afforded by the Administrative Procedure Act was made as an eleventh-hour “tack on” amendment to another bill regarding administrative agency “Rulemaking”. HB 993 has nothing to do with agency rulemaking. Additionally, the Title to HB 993 which is required to identify the scope of the proposed legislation, refers to the change as “providing that a non-applicant who petitions to challenge an agency’s issuance of a license, permit, or conceptual approval in certain circumstances has the burden of ultimate persuasion and the burden of going forward with evidence”.

There was nothing in the Title to HB 993 to suggest that the proposed legislation was going to change the protection of a “level playing field” that private property owners had enjoyed for at least 30 years. In fact, the language cited in the Title to HB 993 merely recited the standard that has been continuously applied since the FDOT v. J.W.C. case. One reading the Title to HB 993 could reasonably assume that the purpose of the Bill was simply to codify a policy that has been in place for a very long time, not to radically change the policy.

The Florida Legislature’s enactment of HB 993 presents further evidence of the State’s lack of concern for private property rights and the dire need for waterfront property owners to organize a state-wide association to have an effective voice in Tallahassee.

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