State of Florida Division of Administrative Hearings
ALL ABOARD FLORIDA IS FACING ANOTHER POTENTIAL OBSTACLE YOU MAY NOT KNOW ABOUT.
On October 20, 2016 the St. John’s River Management District’s (SJRMD) notified the Florida Division of Administrative Hearings (FDAH) that Indian River Farms Water Control District (“Petitioner”) brought forward a petition regarding SJRMD’s decision to grant Permit Application # 135214-2 to All Aboard Florida – Operations, LLC. (“Applicant”)
Indian River Farms Water Control District (IFWCD) is a single purpose District providing primary drainage and stormwater control for an area within Indian River County comprising of approximately 54,000 ± acres in South Eastern Indian River County, Florida. The District is a political subdivision of the State of Florida.
The permit in question # 135214-2 is an environmental resource permit, which grants among others, that All Aboard Florida – Operations, LLC can construct or enlarge three bridges over Indian River Farms Water Control District’s (IRFWCD) flood protection canals: South Relief, Main and North Relief.
But the Indian River Farms Water Control District (IRFWCD), under the the provisions of Chapter 298, Florida Statutes, is the owner charged with the maintenance of these three major water control structures in Indian River County, FL.
The permit was issued on 8.14.2016.
The petitioner, IRFWCD, argues that under Chapter 298, Section 298.24 Florida Statutes “…all enlargements of bridges already in existence shall be built and enlarged according to and in compliance with the plans, specifications and orders made or approved by the chief engineer of the IRFWCD.”
Bridge construction plans were submitted to IRFWMD and disapproved by its chief consulting engineer, George A. Simons P.E. of the firm Carter & Associates, Inc., Vero Beach, FL via email to the SJRMD on May 9, 2016.
Mr. Simons joined Carter Associates Inc. in 1988. He earned Bachelor of Science degree in Civil Engineering from the University of Florida, 1980.
The reason IRFWCD submitted its petition to the FDAH is because Florida agencies often have difficulties resolving many disputes. According to Judge William C. Sherrill, Jr., “Especially for more controversial disputes, a greater level of formality is needed. For these, notice and an opportunity to be heard in an impartial forum are deemed by most of us to be inalienable rights.”
In 1974, Florida made the Division of Administrative Hearings its central adjudicatory body for administrative law. Administrative law judges are increasingly sought out by local agencies.
The Division is not a constitutional agency but it is responsible directly to the Governor and Cabinet. Water management districts, regional planning councils, cities, counties, and similar agencies contract for administrative law judges.
IRFWCD argued in its petition that “the permit should not be issued unless and until the Application has met the statuary mandate of approval bridge construction or enlargement by IRFWCD’s engineer, who indicated that the Applicant’s plans do not meet requirements for bridges over IRFCD.”
And that canals were constructed decades ago and that bridges have the potential of falling and collapsing into canal waters. And that the Chief Engineer of IRFWCD disapproved of the permit “as unnecessarily threatening, impeding or blocking IRFWCD’s protection of upstream lands, lives and infrastructure.”
And that the petitioner had to retain Michael O’Haire, Esq. of O’Haire, Quinn Casalino, Chartered to respond to “a sham pleading, unsupported by law or or fact in seeking and for the purposes of delay rather than to obtain ultimate facts necessary in the circumstances to receive relief.” (Sources: IRFWCD Amended Petition for Administrative Hearing)
On September 13, 2016, the Petition was dismissed by Administrative Judge Bram D. E. Canter.
On September 26, 2016, the Petitioner filed an Amended Petition which included “[a]dditional allegations per Order of Dismissal.”
On October 21, 2016 All Aboard Florida – Operations, LLC moved to dismiss Petitioner IRFWCD’s second amended petition.
On October 31, 2016 Judge Canter ordered that the motion to dismiss was granted, but that the petitioner was granted to file a second amended petition no later than November 4, 2016, which contained relevant factual allegations and citations to relevant statutes and rules.
On November 3, 2016, the Petitioner filed a Second Amended Petition.
On November 9, 2016 All Aboard Florida – Operations, LLC again moved to dismiss Petitioner’s Second Amended Petition.
But on November 14, 2016 Judge Canter ordered that All Aboard Florida – Operations, LLC’s motion to dismiss was DENIED.
In so doing, he wrote that “Petitioners evidence and argument are to be limited to the claims that (1) the lowest horizontal beams of the proposed bridges would be constructed below flood elevations, which would cause flooding, and (2) the proposed bridges would cause sand bars to form in Petitioner’s canals, which would interfere with canal functions.”
We now await an order from Administrative Judge Bram D. E. Canter for Case 16-006165.