DATE:	April 24, 2008
TO:	Office of Commission Clerk (Cole)
FROM:	Office of the General Counsel (Fleming) Division of Economic Regulation (Brady, Kaproth, Rieger, Slemkewicz)
RE:	Docket No. 060276-WS – Application for certificates to provide water and wastewater service in Putnam County by Mariposa Utility Company, LLC.
AGENDA:	05/06/08 – Regular Agenda – Notice of Withdrawal – Interested Persons May Participate
COMMISSIONERS ASSIGNED:			All Commissioners
PREHEARING OFFICER:			Skop
CRITICAL DATES:			None
SPECIAL INSTRUCTIONS:			None
FILE NAME AND LOCATION:			S:\PSC\GCL\WP\060276.RCM.DOC

 

 Case Background

On March 23, 2006, Mariposa Utility Company, LLC (Mariposa) filed an application for original certificates to operate a water and wastewater utility in Putnam County, Florida.  The territory proposed to be served comprised of 2,061 acres on which an affiliated developer was proposing to construct a self-contained community consisting of approximately 3,046 equivalent residential connections (ERCs) and 320 commercial ERCs.  Service was intended to begin approximately three years from the date of the filing.

Along with the application for original certificates, Mariposa filed a motion for temporary waiver of Rule 25-30.033(1)(j), (k), (m), (r), (t), (u), (v), and (w), Florida Administrative Code.  By Order No. PSC-06-0835-PAA-WS, issued October 9, 2006, the Commission granted the temporary rule waiver.

On April 19, 2006, Putnam County (County) filed an objection to Mariposa’s application for original certificates.  On May 25, 2006, the County withdrew its objection to the application for a wastewater certificate.  At their request, parties were given time to negotiate a settlement regarding water service and on June 19, 2007, the County withdrew its objection to the application for a water certificate.

On May 9, 2006, pursuant to a memorandum of understanding with the Department of Community Affairs (DCA), the DCA filed its comments on the development’s consistency with the County’s current comprehensive plan.  While the DCA noted that the proposed Development of Regional Impact (DRI) was currently under review, the DCA indicated that the County’s Future Land Use Map (FLUM) and Future Land Use Element (FLUE) would require amendments to accommodate the proposed project.  In addition, the DCA noted that the sources for financing the capital improvements necessary to support the project were not yet included in the County’s Schedule of Capital Improvements.

Pursuant to request, Mariposa was given additional time to attempt to resolve the DRI, comprehensive plan, and capital improvements issues such that development could proceed.  On March 14, 2008, Mariposa filed a notice of voluntary dismissal of its application because it appeared that the proposed development was not going to go forward as planned.  Because agency action has been taken, the notice of voluntary withdrawal may not be disposed of administratively pursuant to Section 2.07(C)(2)(d)(4), Administrative Procedures Manual.

This recommendation addresses the applicant’s request to withdraw its application for original certificates.  The Commission has jurisdiction pursuant to Sections 367.031 and 367.045, Florida Statutes.

Discussion of Issues

Issue 1: 

 Should the Commission acknowledge Mariposa Utility Company, LLC’s voluntary withdrawal of its petition for water and wastewater certificates, and if so, what effect does the withdrawal have on Docket 060276-WS?

Recommendation: 

 Yes, the Commission should acknowledge Mariposa’s voluntary withdrawal of its petition for water and wastewater certificates as a matter of right.  The effect of the voluntary withdrawal is to divest the Commission of further jurisdiction over this matter.  (Fleming)

Staff Analysis: 

 It is a well established legal principle that the plaintiff’s right to take a voluntary dismissal is absolute.[1]  Once a voluntary dismissal is taken, the trial court loses all jurisdiction over the matter, and cannot reinstate the action for any reason.[2]  Both of these legal principles have been recognized in administrative proceedings.[3]  In Saddlebrook Resorts, Inc. v. Wiregrass Ranch, Inc., 630 So. 2d 1123, 1128 (Fla. 2d DCA 1993), the court concluded that “the jurisdiction of any agency is activated when the permit application is filed . . . . [and] is only lost by the agency when the permit is issued or denied or when the permit applicant withdraws its application prior to completion of the fact-finding process.”  In this case, the hearing has not yet occurred, so the fact-finding process is not complete.  Staff therefore recommends that the Commission acknowledge Mariposa’s withdrawal of its petition as a matter of right, which is in accord with past Commission decisions.[4]  The Commission should further find that the effect of Mariposa’s voluntary withdrawal of its petition for water and wastewater certificates is to divest the Commission of further jurisdiction over this matter.
Issue 2: 

 Should this docket be closed?

Recommendation: 

 Yes.  If the Commission approves staff’s recommendation in Issue 1, the docket should be closed.   (Fleming)

Staff Analysis: 

 If the Commission approves staff’s recommendation in Issue 1, the docket should be closed.