BEFORE THE STATE OF FLORIDA

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					                                                                           DEP FO #09-1246
                           BEFORE THE STATE OF FLORIDA
                     DEPARTMENT OF ENVIRONMENTAL PROTECTION


In re: Village of North Palm Beach, Florida
       Petition for Waiver
                                                      /             OGC File No.: 09-3439

                      FINAL ORDER GRANTING PETITION FOR WAIVER
                        UNDER SECTION 120.542, FLORIDA STATUTES

         On August 28, 2009, the Village of North Palm Beach, Florida (the “Village”) filed a

petition for waiver (“Petition”) under Section 120.542, Florida Statutes. The Petition requests a

waiver of subsection 62S-2.075(2), Florida Administrative Code, which requires that an applicant

for grant funds under the Recreational Trails Program receive the State of Florida Department of

Environmental Protection’s formal approval of commencement documentation prior to the

commencement of construction of an approved project. A notice of receipt of the Petition was

published in the Florida Administrative Weekly on September 11, 2009, and no public comments

were received. Because Chapter 62S-2, Florida Administrative Code, the rule at issue, involves a

federally funded pass-through grant program, the Federal Highway Administration of the United

States Department of Transportation (“FHWA”), which administers the federal program, was

consulted and has approved the Village’s request for a waiver.

         1.     The Village’s mailing address is 501 U.S. Highway One, North Palm Beach, Florida

33408.

         2.     Chapter 62S-2, Florida Administrative Code, contains the administrative rules for the

Recreational Trails Program, which is a grant program administered by the State of Florida

Department of Environmental Protection (“Department”), Office of Greenways and Trails (“Office

of Greenways and Trails”). This program provides grants for the purchase of trail construction or

maintenance equipment, maintenance or renovation of existing trails located on publicly-owned


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lands, development or renovation of trailside and trailhead facilities and trail linkages located on

publicly-owned lands, and construction of new trails on publicly-owned lands.

       3.      The Village has requested a waiver of subsection 62S-2.075(2), Florida

Administrative Code, to allow the Department to remit grant funds in the amount of $200,000 to the

Village for the construction of recreational trails within Anchorage Park. This subsection states:

       All approved projects are required by FHWA to complete the PD&E Process. This
       is accomplished by the applicant’s submittal of the PD&E Data Survey, OGT-15,
       effective date May 1, 2001, hereby incorporated by reference and available from the
       Department’s Office of Greenways and Trails, 3900 Commonwealth Boulevard,
       Mail Station 795, Tallahassee, Florida 32399-3000, (850)488-3701. Upon final
       Class of Action Determination and Department approval of the commencement
       documentation, the Department shall notify the grantee to proce ed with project
       construction. Grantee may not proceed without such notification.

       4.      Section 120.542, Florida Statutes, authorizes an agency to grant a waiver of

administrative rules when a petitioner demonstrates that the purpose of the underlying statute will

be or has been achieved by other means and when the application of a rule would create a

substantial hardship or violate principles of fairness. Under this section, “substantial hardship” is

defined as a demonstrated economic, technological, legal, or other type of hardship to the person

requesting the waiver. For purposes of this section, “principles of fairness” are violated when the

literal application of a rule affects a particular person in a manner significantly different from the

way it affects other similarly situated persons who are subject to the rule.

       5.      Sections 260.012(1) and 260.016(1)(g), Florida Statutes, the underlying statutes,

evidence the intent of the Florida Legislature to allow the Office of Greenways and Trails to give

pass-through grants to local governments, such as the Village, to develop and make improvements

to recreational trails and trail- related facilities on publicly-owned lands to provide healthful and

recreational opportunities for the public. In Section 260.012, Florida Statutes, the Florida

Legislature expresses an intent to establish a statewide system of greenways and trails to provide

people with access to healthful outdoor activities. Section 260.016, Florida Statutes, grants the

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Department the power to receive or accept grants from any legal source for the purpose of providing

or improving public greenways and trails and is authorized to disburse funds as pass-through grants

to federal, state or local agencies. The $200,000 in grant funds received from FHWA and awarded

to the Village meet the declared policy of Chapter 260, Florida Statutes, the Florida Greenways and

Trails Act, by providing the public with access to healthful outdoor activities. The Anchorage Park

trails enhance the public's ability to access the park's recreational facilities, including the adjacent

waterbody (Earman River) and the newly constructed and renovated sports fields and courts, dog

park and playgrounds. In addition to providing access to these facilities, the trails promote the

public well-being by providing a safe environment within a residential neighborhood for walkers,

joggers, and rollerbladers. While bicyclists may also use the trails, bicycle traffic is expected to

remain low and there is good horizontal and vertical alignment to provide for safe and frequent

passing opportunities. Finally, the Village has ensured that the public will enjoy the trails free of

any environmental concerns.

        6.      The requirement that a grantee under the Recreational Trails Program must obtain

written notification of approval of its commencement documentation from the Department prior to

beginning construction of a trail project, the rule requirement from which this waiver is being

sought, is neither a statutory requirement nor a federal requirement, but appears in subsection 62S-

2.075(2), Florida Administrative Code, to ensure that grant funds are spent to develop and improve

recreational trails located on publicly-owned property and that any changes in the plan for the trail

project since the time the application for grant funds was submitted comply with all Recreational

Trails Program requirements.

        7.      The Village received other grant funds totaling at least $400,000 for other, non-trail

related improvements that were constructed as part of the overall Anchorage Park Improvement

Project.


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        8.      The Village submitted its commencement documents to the Office of Greenways and

Trails on November 3, 2008, and endeavored to respond to the Office of Greenways and Trails’

concerns regarding possible environmental impacts of a former wastewater treatment plant. The

Village in good faith believed that the environmental issues had been resolved prior to execution of

the Project Agreement. However, because the Department and the Village differed in their

interpretation of the applicable requirements relating to the review of the environmental issues the

Department’s review of this matter took longer than the Village anticipated. This resulted in a delay

in the Office of Greenways and Trails’ approval of the e nvironmental documentation. The Office

of Greenways and Trails ultimately determined that there was no environmental contamination at

the project site.

        9.      If the Village had not commenced construction of the recreational trails within

Anchorage Park prior to the Department’s formal approval of the commencement documentation,

the Village would have jeopardized other grant funding, including two Florida Recreational

Development Assistance Program grants in the total amount of $400,000, which required

completion of the overall Anchorage Park Improvement Project by April 30, 2009. Consequently,

the Village commenced and completed construction of the concrete bicycle and pedestrian trails that

formed an integral part of the Anchorage Park Improvement Project prior to the resolution of the

environmental issues and the Department’s approval of the commencement documentation and

issuance of a notice to proceed with project construction.

        10.     Strict application of subsection 62S-2.075(2), Florida Administrative Code, in this

case would result in the Village’s loss of its Recreational Trail Program $200,000 grant, despite

having constructed trails that satisfy Office of Greenways and Trails’ and FHWA’s requirements.

Loss of these grant funds would create a substantial economic hardship for the Village.




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        11.     The recreational trails constructed by the Village in Anchorage Park are on publicly-

owned property, open to the public, and are providing the public with opportunities for outdoor

recreational activities.

        12.     For the foregoing reasons, the Village has demonstrated that it has met the statutory

requirements for a waiver of the requirement in subsection 62S-2.075(2), Florida Administrative

Code, regarding commencement of construction of the public recreational trails in Anchorage Park.

        THEREFORE, IT IS ORDERED that the petition for waiver filed by the Village is granted

and the requirements of subsection 62S-20.75(2), Florida Administrative Code, are waived for the

Anchorage Park project that is the subject of the Petition.

        This final order will become final unless a petition for an administrative proceeding is filed

pursuant to the provisions of Sections 120.569 and 120.57, Florida Statutes. Any person whose

substantial interests are affected by the Department’s action may file such a petition. The petition

must contain the information set forth below and must be filed (received) in the Department’s

Office of General Counsel, 3900 Commonwealth Boulevard, MS 35, Tallahassee, Florida 32399-

3000. Any petition filed by the Village must be filed within 21 days of receipt of this order.

Petitions filed by any other person must be filed within 21 days of publication of the public notice

or within 21 days of receipt of this order, whichever occurs first. Under Sectio n 120.60(3), Florida

Statutes, however, any person who asked the Department for notice of agency action may file a

petition within 21 days of receipt of such notice, regardless of the date of publication. A petitioner

must mail a copy of the petition to counsel for the Village, Leonard G. Rubin, Esquire, 701

Northpoint Parkway, Suite 209, West Palm Beach, Florida 33407, at the time of filing. The failure

of any person to file a petition within the appropriate time period shall constitute a waiver of that

person’s right to request an administrative determination (hearing) under Sections 120.569 and

120.57, Florida Statutes, or to intervene in this proceeding and participate as a party to it. Any


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subsequent intervention will only be at the discretion of the presiding officer upon the filing of a

motion in compliance with Rule 28-106.205, Florida Administrative Code.

          A petition that disputes the material facts on which the Department’s action is based must

contain the following information:

          (a) The name, address, and telephone number of each petitioner; the Department case

identification number and the county in which the subject matter or activity is located;

          (b) A statement of how and when each petitioner received notice of the Department action;

          (c) A statement of how each petitioner's substantial interests are affected by the Department

action;

          (d) A statement of the material facts disputed by the petitioner, if any;

          (e) A statement of facts that the petitioner contends warrant reversal or modification of the

Department action;

          (f) A statement of which rules or statutes the petitioner contends require reversal or

modification of the Department action; and

          (g) A statement of the relief sought by the petitioner, stating precisely the action that the

petitioner wants the Department to take.

          A petition that does not dispute the material facts on which the Department’s action is based

shall state that no such facts are in dispute and otherwise contain the same information as set forth

above, as required by Rule 28-106.301, Florida Administrative Code.

          Because the administrative hearing process is designed to formulate final agency action, the

filing of a petition means that the Department final action may be different from the position taken by

it in this order. Persons whose substantial interests will be affected by any such final decision of the

Department on the petitions have the right to petition to become a party to the proceeding, in

accordance with the requirements set forth above.


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       Mediation under Section 120.573, Florida Statutes, is not available for this proceeding.

       This action is final and effective on the date filed with the Clerk of the Department unless a

petition is filed in accordance with the above.

       A party to this order has the right to seek judicial review of it under Section 120.68, Florida

Statutes, by filing a notice of appeal under Rule 9.110, Florida Rules of Appellate Procedure, with the

clerk of the Department in the Office of General Counsel, Mail Station 35, 3900 Commonwealth

Boulevard, Tallahassee, Florida 32399-3000, and by filing a copy of the notice of appeal

accompanied by the applicable filing fees with the appropriate district court of appeal. The notice

must be filed within thirty days after this order is filed with the clerk of the Department.

       DONE AND ORDERED this _______ day of November, 2009, in Tallahassee, Florida.


                                               __________________________________________
                                               Jim Wood, Assistant Director/Community Program
                                               Administrator, Office of Greenways and Trails, State
                                               of Florida Department of Environmental Protection
                                               3900 Commonwealth Boulevard
                                               Mail Station 35
                                               Tallahassee, Florida 32399-3000

FILED on this date pursuant to Section 120.52, Florida Statutes, with the designated Department
Clerk, receipt of which is hereby acknowledged. All copies were mailed before the close of business
on the date below to the persons listed.

_______________________________                         _________________________
Clerk                                                   Date

Copy furnished to:
Leonard Rubin, Esquire
701 Northpoint Parkway, Suite 209
West Palm Beach, Florida 33407




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            NOTICE OF RIGHTS OF SUBSTANTIALLY AFFECTED PERSONS

       This determination is final and effective on the date filed with the Clerk of the Department

unless a timely and sufficient petition for an administrative hearing is filed under Sections 120.569

and 120.57, Florida Statutes, as provided below. If a sufficient petition for an administrative

hearing is timely filed, this determination automatically becomes only proposed agency action

subject to the result of the administrative review process. Therefore, on the filing of a timely and

sufficient petition, this action will not be final and effective until further order of the Department.

The procedures for petitioning for a hearing are set forth in Rules 28-106.201 and .202 and 62-

110.106, Florida Administrative Code, and are summarized below.

       Be advised that, under Florida law, your neighbors and other parties who may be

substantially affected by this determination have a right to request an administrative hearing.

Because the administrative hearing process is designed to re-determine final agency action, the

filing of a petition for an administrative hearing may result in a final determination different from

this determination. Generally speaking, the 21-day period for filing a petition begins to run on the

date of publication of the notice (if published) or the date a person receives actual notice, whichever

occurs first (see below).

       The Department will not publish notice of this determination. Publication of notice by you

is optional and is not required for you to proceed. However, in the event that an administrative

hearing is held and the Department’s determination is reversed, proceeding with the proposed

activity before the time period for requesting an administrative hearing has expired would mean that

the activity was conducted without the required permit or authorization. In cases where notice is

not published, there may be instances in which a substantial amount of time could pass before an

affected person receives notice of the agency action.



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       If you wish to limit the time within which all substantially affected persons may request an

administrative hearing, you may elect to publish, at your own expense, the notice specified below in

the legal advertisement section of a newspaper of general circulation in the county where the

activity is to take place. A single publication will suffice.

       If you wish to limit the time within which any specific person(s) may request an

administrative hearing, you may provide direct notice to such person(s), by certified mail and

enclosing a copy of this determination.

       For the purposes of publication, a newspaper of general circulation means a newspaper

meeting the requirements of Sections 50.011 and 50.031, F lorida Statutes. In the event you do

publish this notice, within seven days of publication, you must provide to the following address

proof of publication issued by the newspaper as provided in Section 50.051, Florida Statutes. If you

provide direct written notice to any person as noted above, you must provide to the following

address a copy of the direct written notice: Florida Department of Environmental Protection, Office

of General Counsel, Mail Station 35, 3900 Commonwealth Blvd., Tallahassee, Florida 32399-3000,

Attn: Gary L. Heiser.




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                                       NOTICE
                                 STATE OF FLORIDA
                        DEPARTMENT OF ENVIRONMENTAL PROTECTION

         The State of Florida Department of Environmental Protection gives notice that the Village of
North Palm Beach, Florida has been granted a waiver from the requirement in subsection 62S-
2.075(2), Florida Administrative Code, regarding commencement of construction of its public
recreational trails project.
         A person whose substantial interests are affected by the Department’s action may petition
for an administrative proceeding (hearing) under Sections 120.569 and 120.57, Florida Statutes.
The petition must contain the information set forth below and must be filed (received by the clerk)
in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail
Station 35, Tallahassee, Florida 32399-3000.
         Mediation is not available.
         If a timely and sufficient petition for an administrative hearing is filed, other persons whose
substantial interests will be affected by the outcome of the administrative process have the right to
petition to intervene in the proceeding. Intervention will be permitted only at the discretion of the
presiding officer upon the filing of a motion in compliance with Rule 28-106.205, Florida
Administrative Code.
         In accordance with Rules 28-106.111(2) and 62-110.106(3)(a)(4), Florida Administrative
Code, petitions for an administrative hearing must be filed within 21 days of publication of the
notice or receipt of written notice, whichever occurs first. Under Rule 62-110.106(4), Florida
Administrative Code, a person whose substantial interests are affected by the Department’s action
may also request an extension of time to file a petition for an administrative hearing. The
Department may, for good cause shown, grant the request for an extension of time. Requests for
extension of time must be filed with the Office of General Counsel of the Department at 3900
Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000 before the applicable
deadline. A timely request for extension of time will toll the running of the time period for filing a
petition until the request is acted upon. Upon motion by the requesting party showing that the
failure to file a request for an extension of time before the deadline was the result of excusable
neglect, the Department may also grant the requested extension of time.
         The petitioner shall mail a copy of the petition to the applicant at the address indicated
above at the time of filing. The failure of any person to file a petition for an administrative hearing
within the appropriate time period shall constitute a waiver of that right.
         A petition that disputes the material facts on which the Department’s action is based must
contain the following information:
         (a)      The name and address of each agency affected and each agency’s file or
identification number, if known;
         (b)      The name, address, and telephone number of the petitioner; the name, address, and
telephone number of the petitioner’s representative, if any, which shall be the address for service
purposes during the course of the proceeding; and an explanation of how the petitioner’s substantial
interests are or will be affected by the agency determination;
         (c)      A statement of when and how the petitioner received notice of the agency decision;
         (d)      A statement of all disputed issues of material fact. If there are none, the petition
must so indicate;
         (e)      A concise statement of the ultimate facts alleged, including the specific facts the
petitioner contends warrant reversal or modification of the agency’s proposed action;


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         (f)     A statement of the specific rules or statutes that the petitioner contends require
reversal or modification of the agency’s proposed action; and
         (g)     A statement of the relief sought by the petitioner, stating precise ly the action that the
petitioner wishes the agency to take with respect to the agency’s proposed action.
         A petition that does not dispute the material facts on which the Department’s action is based
shall state that no such facts are in dispute and otherwise shall contain the same information as set
forth above, as required by Rule 28-106.301, Florida Administrative Code.
         Under Sections 120.569(2)(c) and (d), Florida Statutes, a petition for administrative hearing
shall be dismissed by the agency if the petition does not substantially comply with the above
requirements or is untimely filed.
         Complete copies of all documents relating to this determination are available for public
inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, at State of
Florida Department of Environmental Protection, Office of General Counsel, Mail Station 35, 3900
Commonwealth Blvd., Tallahassee, Florida 32399-3000, Gary L. Heiser 850/245-2242.




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