Vacate Vacate - originally document type was Order - changed during

00A-P126-DEQ · Department of Environmental Quality · 2000-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The Arizona Department of Environmental Quality has moved to dismiss Mr. Cullinane’s appeal of the Department’s denial of his application for Approval to Construct (“ATC”) an alternative on-site sewerage system. The motion is based on Mr. Cullinane’s alleged lack of standing to prosecute this appeal and the fact that, although he is the engineer who designed the system and submitted the application, he does not own the property on which the sewerage system was to be constructed. Mr. Cullinane has opposed the motion, claiming that his interest in the plans he prepared for the property confers standing. Factual Background Mr. Cullinane is the professional engineer who prepared the application for ATC an alternative on-site sewerage system on property owned by Scott Forkenbrock. Mr. Cullinane stated at the oral argument on the motion to dismiss that Mr. Forkenbrock does not wish to join his appeal or bring one on his own behalf and is considering selling the property. Mr. Cullinane also stated that Mr. Forkenbrock is his friend and that he is not charging anything for the project; Mr. Cullinane will not get paid anything regardless of whether the ATC is approved or denied. Mr. Cullinane brings this appeal because he believes the Department has exceeded its statutory authority in the administrative regulations it has passed, that it has misapplied regulations in denying the application for ATC, or that it has applied the regulations inconsistently to the detriment of the professional interests of Mr. Cullinane and all engineers who design similar sewerage systems. Applicable Law Neither the administrative regulations nor the statutes relating to the Department of Environmental Quality or the Office of Administrative Hearings and cited by the parties expressly define who is a proper party to an administrative appeal. See, e.g., A.R.S. §§ 41-1001(12) and (17), 41-1092.03(B), 41-1092(3), and 41-1001(12); A.A.C. R18-9-802(F), R18-9-802(D) and R18-9-804(F). A.R.S. § 41-1092.03(B) provides as follows: A party may obtain a hearing on an appealable agency action by filing a notice of appeal within thirty days after receiving the notice . . . . The notice may be filed by a party whose legal rights, duties or privileges were determined by the appealable agency action. A notice of appeal also may be filed by a party who will be adversely affected by the appealable agency action and who exercised any right to comment on the action provided by law or rule . . . .

(Emphases added.) Mr. Cullinane claims he will be adversely affected but he has exercised no right to comment provided by law or rule. Cf. A.R.S. § 36-2234 (requiring Director of Department of Health Services to give notice of hearing on actions or changes in ambulance service’s application for certificate of necessity and to accept comments from “every ambulance service in the affected region”). The issue is then whether Mr. Cullinane’s “legal rights, duties or privileges” were affected by the Department’s denial of his application for ATC the sewerage system on Mr. Forkenbrock’s property. Standing to prosecute an administrative appeal is closely related to the doctrine of standing to sue in a judicial forum: “Standing to sue” means that a party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 1364, 31 L.Ed.2d 636. . . . The requirement of “standing” is satisfied if it can be said that the plaintiff has a legally protectible and tangible interest at stake in the litigation. Guidry v. Roberts, La. App. 331 So. 2d 44, 50. Standing is a jurisdictional issue which concerns power of federal courts to hear and decide cases and does not concern ultimate merits of substantive claims involved in the action. Weiner v. Bank of King of Prussia, D.C. Pa, 358 F. Supp. 684, 695. The doctrine emanates from the case or controversy requirement of the Constitution and from general principles of judicial administration, and seeks to insure that the plaintiff has alleged such a personal stake in the outcome of the controversy as to assure concrete adverseness. Campaign Clean Water, Inc. v. Ruckelshaus, D.C. Va., 361 F. Supp. 689, 692.

Standing is a requirement that the plaintiffs have been injured or been threatened with injury by governmental action complained of, and focuses on the question of whether the litigant is the proper party to fight the lawsuit, not whether the issue itself is justiciable. Carolina Environmental Study Group, Inc. v. U.S. Atomic Energy Comm., D.C.N.C., 431 F. Supp. 203, 218. Essence of standing is that no person is entitled to assail the constitutionality of an ordinance or statute except as he himself is adversely affected by it. Sandoval v. Ryan, Colo. App., 535 P.2d 244, 247. . . .

Black’s Law Dictionary at 1405-06 (6th ed. 1990) (emphases added); see also Armory Park v. Episcopal Community Services, 148 Ariz. 1, 5, 712 P.2d 914, 918 (1985); Blanchard v. Show Low Planning, 196 Ariz. 114, 118, 993 P.2d 1078, 1082 (App. 1999) (“To have standing, a plaintiff ‘must plead damage from an injury peculiar to him or at least more substantial than that suffered’ by the community at large.”). Although Mr. Cullinane’s professional reputation may be slightly affected by the Department’s denial of his ATC the sewerage system he designed for Mr. Forkenbrock’s property, that effect does confer standing on him to prosecute this administrative appeal. The denial or grant of relief in the appeal would not affect Mr. Cullinane’s license to practice engineering, any interest in the property on which the ATC the sewerage system was denied, or any other substantial interest in property or his profession. Other Considerations The only issue in this appeal is whether the Department should have granted the ATC for the sewerage system Mr. Cullinane designed for Mr. Forkenbrock’s property. It is not whether the Department is unreasonably prejudiced toward Mr. Cullinane or the kind of sewerage system he has designed. As the undersigned noted at the oral argument, regardless of the recommendation she makes or the action that the Director takes on the recommendation, the decision will not set a precedent for Mr. Cullinane or other engineers to follow for sewerage systems on other properties. The legislature has not empowered the Department or the Office of Administrative Hearings to decide any more than the particular dispute before them or to declare consultants’ or engineers’ general rights vis-à- vis the Department. Cf. A.R.S. § 12-1831 (“Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”). CONCLUSION For the foregoing reasons, IT IS ORDERED that the hearing scheduled to convene on January 11, 2001 be vacated from the calendar of the Office of Administrative Hearings. IT IS FURTHER ORDERED that this appeal be remanded to the Director of the Department with the recommendation that she dismiss this appeal. Done this day, December 15, 2000.

______________________________________ Diane Mihalsky Administrative Law Judge

Copy mailed this ____ day of December, 2000, to:

Jacqueline E. Schafer, Director Arizona Department of Environmental Quality ATTN: Lavonne Watkins 3033 North Central Avenue Phoenix, AZ 85012

Circle C Engineering Douglas G. Cullinane, P.E. 1977 East Del Rio Drive Tempe, AZ 85282

Cynthia S. Campbell, Esq. Assistant Attorney General 1275 West Washington Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826