STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAVIER H. LONDONO, CHARLES A. ) WILLIAMS, JR., JOHN M. HOCE ) and ALAN ESPINOSA, )

)

Petitioners, )

)

vs. ) CASE NO. 82-2137

) CITY OF ALACHUA, FLORIDA and ) TURKEY CREEK, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

On September 2, 1982, a motion hearing was held to consider the requested dismissal filed by Respondent Turkey Creek, Inc. This hearing was conducted in the offices of the Division of Administrative Hearings at 2009 Apalachee Parkway, Tallahassee, Florida. The hearing entailed oral argument by counsel, utilizing the Petition in this cause and other pleadings as the basis of fact for considering Turkey Creek's Motion to Dismiss. Following the hearing on the motion, the parties were afforded further opportunity to submit supplemental argument in the way of case authority. Additional information was received from Turkey Creek on September 9, 1982. This Recommended Order is being entered following consideration of the aforementioned Petition and pleadings, argument of counsel and the supplemental authority.

APPEARANCES

For Petitioners: George B. Nickerson, Jr., Esquire

Post Office Box 1832 Gainesville, Florida 32602

For Respondent, Allison E. Folds, Jr., Esquire City of Alachua, Cherie Parrillo, Esquire Florida: 527 East University Avenue

Gainesville, Florida 32601

For Respondent, A. Bice Hope, Esquire

Turkey Creek: General Counsel for Turkey Creek, Inc.

2208 Northwest 71st Place Gainesville, Florida 32606

and

Robert M. Rhodes, Esquire James C. Hauser, Esquire MESSER, RHODES & VICKERS

Post Office Box 1876 Tallahassee, Florida 32302

ISSUE

The issue presented for consideration herein concerns the standing of Petitioners to challenge the development order entered by the City of Alachua, Florida, granting DPI approval to Turkey Creek, Inc. That order dates from June 15, 1982. In particular, the Motion to Dismiss filed by Respondent Turkey Creek asserts that Petitioners are not members of the class of individuals delineated in Subsection 380.07(2), Florida Statutes, who would have standing to appeal the development order; in that Petitioners are neither "owners" or within other classifications of individuals who might file an action before the Florida Land and Water Adjudicatory Commission, which action is in opposition to the grant of the development order.

RECORD

Although a transcription was not made of the motion hearing, the following items which are attached to this Recommended Order constitute the factual basis for this decision. Attachment "A" is the Notice of Appeal of development order; Attachment "B" is the petition for review of development order with its attendant exhibits; Attachment "C" is the letter of referral from the Secretary to the Florida Land and Water Adjudicatory Commission to the Director of the Division of Administrative Hearings; Attachment "D" is the answer and affirmative defenses to the petition filed by Turkey Creek; Attachment "E" is the motion to dismiss filed by Turkey Creek; Attachment "F" is the notice of hearing related to the motion to dismiss; and Attachment "G" is the supplemental authority offered by Turkey Creek.

For purposes of this Recommended Order, notwithstanding the answer of Turkey Creek wherein facts of the Petition are denied, the factual allegations related to the standing issue as made through the petition are deemed to be factually accurate, with the exception of those contentions pertaining to conclusions of law.

FINDINGS OF FACT

1. On January 4, 1982, the Turkey Creek Development of Regional Impact Application for Development Approval was filed with the City of Alachua, Florida, City Commission and North Central Florida Regional Planning Council in accordance with Chapter 380, Florida Statutes. It was filed by Turkey Creek, Inc., as applicant. Turkey Creek, Inc. is wholly-owned by Norwood W. Hope, N. Forest Hope and A. Brice Hope.

   
   

2. Turkey Creek proposes to develop 5,300 residential dwelling units on 976+- acres, which constitutes a residential development of regional impact according to Chapter 380, Florida Statutes, and Chapter 22F-2.10, Florida Administrative Code, involving real property located in the City of Alachua, Alachua County, Florida, as included in the property description found as an exhibit to the petition document which is Attachment "B" to this Recommended Order.

   
   

3. Prior to June 15, 1982, the City of Alachua had previously duly zoned or did simultaneously zone the said 976+-acres PUD and commercial to permit the development as specified in the said application. June 15, 1982, is the date when the City of Alachua adopted the development order for the Turkey Creek Development of Regional Impact.

4. Following the action by the City of Alachua, the Petitioners in this cause, in the person of counsel, filed a notice of appeal of the development order. This appeal was made on June 28, 1982, and on that same date, the petition for review of that development order was filed with the State of Florida, Land and Water Adjudicatory Commission.

   
   

5. On August 4, 1982, the matter was transmitted to the division of administrative Hearings for formal hearing by action of the Office of the Office of the Secretary of the Florida Land and Water Adjudicatory Commission. The case was subsequently assigned to this Hearing Officer and a motion hearing was conducted to consider a dismissal of this action based upon Respondent Turkey Creek's allegation that the Petitioners lack standing. The motion hearing was conducted on September 2, 1982.

   
   

6. Petitioners are owners of real property included within the Turkey Creek development of regional impact and their property is adjacent or in close proximity to properties which were the subject of the City's zoning decision made in conjunction with approval of the development order.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction to consider the matters raised by the motion to dismiss, in keeping with the authority expressed in Subsection 120.57(1), Florida Statutes, and Chapter 380, Florida Statutes.

   
   

8. For purposes of this Recommended Order, notwithstanding the answer of Turkey Creek wherein facts of the petition are denied, the factual allegations related to the standing issue as made through the petition are deemed to be factually accurate, with the exception of those contentions pertaining to conclusions of law.

   
   

9. The sole issue to be determined through this Recommended Order concerns the standing of the named Petitioners to promote their petition challenge to the action of the City of Alachua, Florida, in its adoption of the development order for the benefit of Turkey Creek, Inc. This question is being deliberated upon facts which show that Turkey Creek, Inc., is a corporation wholly owned by several individuals, none of which are the named Petitioners in this cause. It is Turkey Creek that is the applicant/owner of the 976+- acres of property to be developed under the authority of the development order, not the Petitioners. While the Petitioners are owners of real property included within the purview of the Turkey Creek Development of Regional Impact, they are not applicants/owners of property sought to be developed through the permission engendered through the process of the City of Alachua's development order. Inclusion of Petitioners' realty within the boundaries of the impacted area for purposes of review under Chapter 380, Florida Statutes, does not elevate the Petitioners to the status of "owners" who have applied for a development order. Consequently, Petitioners may not claim standing as owners within the meaning of Subsection 380.07(2), Florida Statutes, 1/ or as developer or any other stated category of individual who is granted standing to challenge a development order. These categories, to include the ownership category, operate to the exclusion of all other persons and this statutory design serves to foreclose the Petitioners from bringing this appeal of the development order, based upon their lack of standing. Moreover, Petitioners' standing claim is not rehabilitated by the fact that their property is adjacent or in close proximity to those properties which were the subject of the City's zoning decision, which decision was made in conjunction with approval of the development order.

10. The Florida Legislature, in 1972, enacted the Environmental Land and Water Management Act, Chapter 72-317, Laws of Florida, as codified in Sections 380.012-.10, Florida Statutes. In doing so, the Legislature expressed the intent of this act in that provision, Section 380.021, Florida Statutes:

    
    

    [to] facilitate orderly and well-planned development, and protect the health, welfare, safety, and quality of life of the residents of this state, . . . [and

    to] plan for and guide growth and development within this state. In order to accomplish these purposes, it is necessary that

    the state establish land and water management policies to guide and coordinate local decisions relating to growth and development; that such state land and water management policies should, to the maximum possible extent, be implemented by local governments through

    existing processes for the guidance of growth and development; and that all the existing rights of private property be preserved

    in accord with the constitutions of this state and of the United States.

    
    

11. To further assure the techniques for state-wide management policies on those occasions when local decisions were being made related to growth and development, the Development of Regional Impact process was established through Section 380.06, Florida Statutes. It provided and does provide that an application for approval of those developments which, in view of their "character, magnitude, or location, would have a substantial effect upon the health, safety or welfare of citizens of more than one county," Subsection 380.06(1), Florida Statutes, be considered through the DRI process. A developer who contemplates a project to those dimensions, such as the developer/owner in the present case is required to file an application for development approval with the local government having jurisdiction over the property and in this instance Turkey Creek, Inc., applied with the City of Alachua and following review, the City of Alachua issued its development order on June 15, 1982.

    
    

12. That decision to grant the development could only be appealed by those entities which have been spoken to before in the discussion of Subsection 380.07(2), Florida Statutes, and the conclusion that the Petitioners are not within the ambit of the pronouncement on standing is borne out by opinions of court.

    
    

13. In Sarasota County v. Baker Phosphate Corporation, 322 So.2d 655 (Fla. 1st DCA 1975), Sarasota County attempted an appeal under the authority of Subsection 380.07(2), Florida Statutes, by challenging a development order issued by Manatee County. The Florida Land and Water Adjudicatory Commission dismissed that appeal based upon a lack of standing, and that decision was affirmed by the First District Court of Appeal. The Court indicated:

    
    

    The entire scheme of Chanter 380 carefully preserves the rights of local government to the maximum extent possible

    in `zoning' property within its boundaries;

    the rights of the regional area by requiring a regional impact study in appropriate cases; the rights of the state by authorizing its land planning agency or

    the regional planning agency to seek review of local governmental action; and the rights of the landowner, including a specific timetable compelling expeditious action in order to quickly resolve the question of governmental dictates as to the use of his land. In seeking to accomplish this regulatory scheme, the Legislature enumerated those parties that were charged with the responsibility of reviewing the local government's action entered by such local government. Id.

    at 658. (Emphasis added.) The Court further noted:

    By specifically designating parties authorized to seek review of the local government's order, the legislature sought to avoid administrative and judicial delay

    of the resolution of the landowner's right to lawfully utilize his property. Id. fn. 11.

    
    

14. The present Petitioners are not dissimilar when compared with Sarasota County's claim of standing in the Beker case. Petitioners are simply not within the designated categories for purpose of standing.

    
    

15. The Baker opinion, in its holding and reasoning, was accepted by the Second District Court of Appeal in Sarasota County v. General Development Corporation, 352 So.2d 45 (Fla. 2d DCA 1976). The appeal to the Land and Water Adjudicatory Commission by Sarasota County of a development order issued by the City of North Fort was denied on the issue of standing and the Second District Court of Appeal upheld the Commission's decision. That opinion of the Second District Court of Appeal was to the effect that only those specified parties as established in Subsection 380.07 (2), Florida Statutes, would have standing.

    
    

16. In another appeal before the First District Court of Appeal, Suwannee River Area Council Boy Scouts of America v. Department of Community Affairs, 384 So.2d 1369 (Fla. 1st DCA 1980), the issue of standing was considered. In that instance, owners of land adjacent to a proposed development were denied standing. Those owners of land in that court case are analogous to the present Petitioners in that their proximity to the development causes them to be affected or impacted, but does grant them the necessary standing contemplated by Subsection 380.07(2), Florida Statutes. The determination pursuant to Subsection 380.06(4), Florida Statutes, to the effect that the court case was not a DRI and the decision to adopt a development order in the case before this Hearing Officer, were not matters subject to appeal by the Boy Scouts of America or the present Petitioners. The First District Court of Appeal emphasized this fact in the opinion by stating:

    
    

    [I]t is not the purpose of Chapter 380 to provide a forum for parties whose complaints focus on alleged detriment

    to activities they wish to conduct on adjoining land. `Regional impact' is concerned with matters affecting the public in general, not special interests of adjoining landowners. We point out that such special interests are properly asserted before the local governing body having jurisdiction to control land use and development under zoning and building

    regulations. Id. at 1374. (Emphasis added.)

    
    

17. This decision on standing is also supported by that opinion in General Electric Credit Corporation of Georgia v. Metropolitan Dade County, 346 So.2d 1049 (Fla. 3d DCA 1977), and the final order before the State of Florida, Land and Water Adjudicatory Commission in Caloosa Property Owners Association, Inc., Petitioner, vs. Palm Beach County Board of County Commissioners, Respondents, and Caleffe Investment, Limited and Worthington Enterprises, Inc. Intervenors, Case No. 82-661, and the Recommended Order in Holywell Corporation and Theodore

B. Gould, Petitioners, v. City of Miami, Respondent, and Southeast Banking Corporation and Gerald D. Hines Interests, Intervenors, DOAH Case No. 81-960.

In summary, it is concluded as a matter of law that Petitioners lack standing under Subsection 380.07(2), Florida Statutes, to maintain an appeal to the Florida Land and Water Adjudicatory Commission challenging the action of the City of Alachua's development order approving Turkey Creek, Inc.'s DRI and it is accordingly,

RECOMMENDED:

That a final order be entered by the State of Florida, Land and Water Adjudicatory Commission dismissing the Petition of those Petitioners with prejudice.

DONE AND ENTERED this 21st day of September, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1982.

ENDNOTE

1/ (2) Whenever any local government issues any development order in any area of critical state concern, or in regard to any development of regional impact, copies of such orders as prescribed by rule by the state land planning agency shall be transmitted to the state land planning agency, the regional planning agency, and the owner or developer of the property affected by such order.

Within 45 days after the order is rendered, the owner, the developer, an

appropriate regional planning agency by vote at a regularly scheduled meeting, or the state land planning agency may appeal the order to the Florida Land and Water Adjudicatory Commission by filing a notice of appeal with the commission. The appellant shall furnish a copy of the notice of appeal to the opposing party, as the case may be, and to the local government which issued the order. The filing of the notice of appeal shall stay the effectiveness of the order and shall stay any judicial proceedings in relation to the development order, until after the completion of the appeal process.

COPIES FURNISHED:

The Honorable Bob Graham Governor, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32301

The Honorable Bill Gunter Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32301

The Honorable Jim Smith Attorney General

The Capitol, Plaza Level Tallahassee, Florida 32301

The Honorable Ralph Turlington Commissioner of Education

The Capitol, Plaza Level Tallahassee, Florida 32301

The Honorable Doyle Conner Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, Florida 32301

The Honorable George Firestone Secretary of State

The Capitol, Plaza Level Tallahassee, Florida 32301

The Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32301

John T. Herndon, Secretary Florida Land and Water

Adjudicatory Commission Office of the Governor The Capitol, Plaza Level

Tallahassee, Florida 32301

Joan M, Heggen, Secretary Department of Veteran and

Community Affairs

2571 Executive Center Circle East Tallahassee, Florida 32301

North Central Regional Planning Council

2202 Northwest 13th Street Gainesville, Florida 32601

George H. Nickerson, Jr., Esquire Post Office Box 1832 Gainesville, Florida 32602

Allison E. Folds, Jr., Esquire Cherie Parrillo, Esquire

527 East University Avenue Gainesville, Florida 32601

A. Bice Hope, Esquire

General Counsel for Turkey Creek, Inc. 2208 Northwest 71st Place

Gainesville, Florida 32606

Robert M. Rhodes, Esquire James C. Hauser, Esquire MESSER, RHODES & VICKERS

Post Office Box 1876 Tallahassee, Florida 32302

Docket for Case No: 82-002137

Orders for Case No: 82-002137