Permit Challenges – Update Regarding Notice and Challenge Period from Lewis, Longman & Walker, P.A.

By: Richard P. Green and Christopher A. Perrigan

You recently bought a vacant property on the beach and you plan to build your dream beach house. The property, being located adjacent to the sensitive beach and dune system, requires a coastal construction control line (“CCCL”) permit from the Florida Department of Environmental Protection (“FDEP”). Your coastal engineer applies for a CCCL permit and successfully obtains it for you.  Your dream home is built; however, a nearby neighbor who is an out-of-state snowbird returns to Florida and vehemently disputes your newly constructed home. Just as you’re relaxing on your new deck facing the ocean for the first time, your enraged neighbor informs you that they intend to bring legal action on the grounds that the CCCL permit was improperly issued by the FDEP. Now what?

Can your neighbor bring a permit challenge months after the fact by simply discovering the house’s existence? The answer hinges on whether proper legal “notice” was provided to your neighbor regarding your permit and project.[1] This article explores the nuances of the all important, but often overlooked, “notice” requirement in the administrative law context, and offers valuable advice to environmental permitting practitioners obtaining entitlements from agencies for property owners seeking to develop their property.

Florida’s Administrative Procedures Act (“APA”) contained in chapter 120, Florida Statutes, governs notice requirements where an agency, such as the FDEP, issues a permit. Since the APA’s enactment in 1974, “notice” of an agency’s action must be given to parties whose “substantial interests” are determined by an agency’s decision.[2] Proper notice ensures substantially affected parties are given a “clear point of entry” into the administrative process.[3] Upon proper notice of agency action, legal challenges by substantially affected parties are subject to statutory time requirements in which to file a petition for administrative hearing before the Division of Administrative Hearings (“DOAH”). In the environmental permitting context, activities which require some form of government permit (authorization) include coastal construction, the building of docks, stormwater management, wastewater treatment, dredging and filling a wetland, etc. Failure to meet the applicable deadlines to challenge agency action results in waiver of any challenge.  

Proper notice, triggering the time clock to challenge, is commonly provided in one of two ways–actual notice and constructive notice.  The difference between these types of notice, although subtle to the non-legal world, is important. Failure of a permittee to deliver proper notice can be devastating.

Actual Notice
The term “actual notice” is not defined in Florida Statute or Florida Administrative Code. However, case law describes actual notice as being comprised of two styles: express notice, which is notice based on direct information; and implied notice, which means notice that is inferred from the fact that a person had the means of knowledge and duty to act upon.[4] For example, express actual notice is triggered when you give your neighbor the permit notice of the agency activity by hand, mail, or electronically via e-amil. While straightforward, this method of actual notice is likely to invite unwanted permit challenges and thus unfavored. Implied actual notice is triggered via the law of discovery–your neighbors “discovery” of your beach house was sufficient to put them on actual notice of the agency action to issue a permit for the house. Implied actual notice has historically been subject to critique. What is the time frame for your neighbor to bring a permit challenge? If via expressed actual notice the time frame is 20 days – do you simply apply 20 days to the neighbor’s date of his “actual notice” of the activity? Courts have opined that some form of “reasonable time”  exists following discovery of the activity for the party to take some action to act on their rights and object to the activity.^[5] Thus, implied actual notice via “discovery” was part of the calculus in determining when a substantially affected party must act.

However, while Courts have traditionally accepted “actual notice” via discovery as sufficient, they have recently receded from acceptance of this practice. The problem with “actual notice” via discovery is that knowing the beach house exists does not inform the substantially affected party that the beach house was permitted, let alone by which government agency, such as FDEP. In other words, knowledge of the activity is not necessarily considered sufficient notice of the agency action permitting the activity to commence the running of the time period within which review must be sought.^[6] On the other hand, actual notice of the agency action relating to the activity is sufficient to trigger the time frame to challenge.

Indeed, the Court’s recession from actual notice via discovery brings certainty to when a substantially affected party’s “clear point of entry” into the administrative process begins. Substantially affected parties must be informed of their Chapter 120 rights and how to use them. One court has held “[n]otice of agency action which does not inform the affected party of its right to request a hearing and the time limits for doing so is inadequate to trigger the commencement of the administrative process.”^[7] “The sufficiency of the notice is not affected by the actual knowledge of the recipient.”^[8] In other words, the notice must define the procedure that one must take in order to request an administrative hearing, which would include who to email or mail, what to include in the communication, and of course the time limits to request the hearing.

Furthermore, the current APA rules do not support the idea of discovery of the project as sufficient notice of agency action. Rule 28-106.111(2), F.A.C. states “unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.” Neither the statute nor rule make any mention of the activity being part of the notice. The entire focus is on what the agency decides to do, e.g., grant or deny the permit, suspend the license, select the bid, etc.

Agencies such as the FDEP have added provisions regarding notice and challenging agency decisions. Rule 62-110.106(2)-(3) provides:

(2) “Receipt of Notice of Agency Action” Defined. As an exception to subsection 28-106.111(2), F.A.C., for the purpose of determining the time for filing a petition for hearing on any actual or proposed action of the Department as set forth below in this rule, “receipt of notice of agency action” means either receipt of written notice or publication of the notice in a newspaper of general circulation in the county or counties in which the activity is to take place, whichever first occurs, except for persons entitled to written notice personally or by mail under Section 120.60(3), F.S., or any other statute. For purposes of this section, “publication of the notice” for hazardous waste permits shall mean the publication of the notice in a newspaper or the broadcast of the notice over a local radio station (both of which are required) in accordance with subsection 62-730.220(9), F.A.C., whichever is later. “Notice of agency action” shall include notice of intended agency action as well as actual agency action. For applications reviewed concurrently under Section 373.427, F.S., “notice of agency action” shall mean only the consolidated notice of intent to grant or deny. Except where otherwise provided by statute or this rule chapter, a timely petition requesting an administrative hearing shall be filed within twenty-one days of such receipt of notice of agency action.

(3) Time for Filing Petition.

(a) A petition shall be in the form required by Rule 28-106.201 or 28-106.301, F.A.C., and must be filed (received) in the office of General Counsel of the Department within the following number of days after receipt of notice of agency action, as defined in subsection (2), of this rule above:

The South Florida Water Management District once had a rule that stated “[u]ntil notice is published, the point of entry to request a formal or informal administrative proceeding shall remain open unless actual notice is received.”^[9] That rule has since been repealed. The term “actual notice” is not found in the administrative code today; instead, the code is explicit, unless written notice is received by the substantially interested party. Therefore, the only effective way to quickly foreclose a third-party challenge to agency action is to publish notice constructively.

Constructive Notice
Constructive notice is “notice imputed to a person not having actual notice.”[10] Constructive notice is typically satisfied by publishing a permit in a newspaper pursuant to the requirements of Chapter 50, Florida Statutes. Indeed, when Chapter 120, Florida Statutes, was originally passed in 1974, the use of newspapers was ubiquitous and, generally, anything newsworthy was published in newspapers. To this day, newspapers of general circulation include legal notice sections where people can publish notice on a variety of projects, including obtaining a coastal construction permit to build a home on the beach. From a policy perspective, publishing permits in newspapers of general circulation is considered sufficient to put the world on notice of the permit. Once published, the timeframe for any substantially affected party to file a petition begins to run. Once this time frame expires, anychallenge to the permit is foreclosed. Therefore, constructive notice can be significantly beneficial to the permit holder.

While a newspaper’s legal ad section is an archaic form of “putting the world on notice,” such a method is still considered a sufficient form of constructive notice. The Florida Legislature has in recent years attempted, but without success, to update constructive notice law to identify ways to sufficiently provide third parties with notice. Surely, with the advent of Artificial Intelligence, an effective policy change may come sooner rather than later.

Conclusion
The difference between these types of notice, although subtle to the non-legal world, is important. A permittee significantly benefits from taking advantage of constructive notice laws. On the other hand, a third party who may be substantially affected significantly benefits where a permittee does not publish notice constructively. Whether via actual or constructive notice, the days of actual notice via discovery are gone. Substantially affected parties must receive written actual notice of the agency action, not the activity, before the clock to challenge the agency action begins to run.

Whether permit consultant, developer, or municipal official responsible for securing permits, it is crucial to include constructive notice publication as part of your permitting process. The act of publishing is, without a doubt, the most cost-effective and secure form of insurance against litigation.

For more information about the nuances of effectuating proper notice, or to obtain assistance with publishing your permits, contact us at Lewis, Longman & Walker, P.A. to conduct a simple review of your permit and complete the publication process inclusive of ensuring the issuing agency is made aware.

Richard P. Green – Click to Contact | Christopher A. Perrigan – Click to Contact

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[1] This article discusses “notice” and legal challenges in the context of environmental administrative agency decisions and does not discuss local government permitting challenges or other state agency’s notice practices. The hypothetical scenario is in the context of coastal construction control line permitting pursuant to chapter 161.053, Florida Statutes.

[2] Ch. 74-310, Laws of Fla.

[3] Capeletti Brothers v. Department of Transportation, 362 So. 2d 346, 348 (Fla. 1st DCA 1978).

[4] Mary Jo Haybert Jimenez v. Jose Rodriguez and Department of Environmental Protection, Case No. 07-5216 (DOAH January 28, 2010)(recommended order dismissing petition with prejudice)(FDEP Final Order March 12, 2010).

[5] See Accardi v. Department of Environmental Protection, 824 So. 2d 992, 996 (Fla. 4th DCA 2002) (“Because they did not receive notice, this court found that the neighbors timely disputed Wentworth’s right to build the dock as soon as they had actual notice.”)

[6] See Cons. Alliance of St. Lucie County v. Ft. Pierce Utilities Authority, Case No. 09-1588 (Fla. DOAH May 24, 2013; Fla. DEP July 8, 2013).

[7] Florida League of Cities, Inc. v. Admin. Comm’n, 586 So. 2d 397, 413 (Fla. 1st DCA 1991).

[8] Henry v. Department of Admin., 431 So. 2d 677, 680 (Fla. 1st DCA 1983).

[9] Rule 40E-1.511, F.A.C. repealed.

[10] Sapp, 105 Fla. At 255