Sound Transportation Planning Coalition, Inc. v. Florida Department of Transportation

ROBERT P. SMITH, Jr., Judge. Sound Transportation Planning Coalition, Inc. (STPC), a Tallahassee-based corporation of persons concerned with transportation developments as they affect the ecology, appeals from an order of the Department of Environmental Regulation granting a complex source air quality permit to the Department of Transportation for construction of additional traffic lanes on Thomasville Roád. We affirm. The Department of Environmental Regulation did not offend Farrell v. Amica Mutual Ins. Co., 361 So.2d 408 (Fla.1978), by reinstating the previously dismissed Section 120.57 proceedings, which were initiated by STPC to contest the issuance of a permit to DOT, then dismissed by DER when Fla.Admin.Code.R. 17-2.04(8), requiring such a permit, was purportedly repealed by DER action. When the Division of Administrative Hearings subsequently held that Rule 17-2.04(8) was irregularly repealed, DER reinstated the cause on motion by DOT. The prior dismissal was not a determination on the merits of DOT’s application, but only recognition that the underlying rule requiring the permit, was no longer in effect. [1177] Reinstatement of the proceedings when the rule was revived therefore did not disturb a prior decision on the merits, but was in effect a measure conveniently restoring the controversy to its prior condition. There was no prejudice to STPC in reinstatement of the proceedings. Section 120.68(8), Florida Statutes (1977). A renewed application by DOT and a renewed objection by STPC would have had the same effect. There is no cause to extend the Farrell rule to the extent of forbidding renewed proceedings for a required permit for construction, of which DER had jurisdiction, without a determination of the merits. On the merits we find no error in DER’s action granting the permit. AFFIRMED. MILLS, C. J., and HENRY CLAY MITCHELL, Jr., Associate Judge, concur.