-(H- OY Final Order Number DCA04-GM-158 é s Chg TATE OF FLORIDA Up DEPARTMENT OF COMMUNITY AFFAIRS _ ‘6 : L MANASOTA-88, INC., oo, “ GLENN COMPTON ane and BECKY AYECH, canercs Petitioners, DOAH Case Nos.: OR 38 94GM Vv. 02- GM Q2£38966M SARASOTA COUNTY, and 02-3897GM STATE OF FLORIDA, DEPARTMENT AT 02-3898GM OF COMMUNITY AFFAIRS, Respondents. / FINAL ORDER This matter was considered by the Secretary of the Department of Community Affairs following receipt of a Recommended Order issued by an Administrative Law Judge of the Division of Administrative Hearings. A copy of the Recommended Order is appended to this Final Order as Exhibit A. BACKGROUND This matter involves a challenge to a comprehensive plan amendment adopted by Sarasota County Ordinance No. 2001-76, hereinafter referred to as “the Plan Amendment” or “Amendment.” The Department of Community Affairs (“Department”) published a notice of intent to find the Plan Amendment “in compliance,” as defined in Section 4163.3184(1) (bo), Florida Page 1 of 11 — DKA WS Final Order Number DCA04-GM-158 Statutes (2003), and the Petitioners challenged the Plan Amendments, as authorized by Section 163.3184(9) (a), Florida Statutes. Administrative Law Judge (“ALJ”) Donald R. Alexander of the Division of Administrative Hearings conducted a formal hearing. Following the hearing, the ALJ submitted his Recommended Order to the Department. The ALJ recommended that the Department enter a final order determining that the Plan Amendment is in compliance. ROLE OF THE DEPARTMENT Throughout the pendency of the formal administrative proceedings, the Department's litigation staff contended that the Plan Amendment is in compliance. After the ALJ issued his Recommended Order, the Department assumed two functions in this matter. The attorney and staff who advocated the Department’s position throughout the formal proceedings continued to perform that function. The Secretary of the Department and agency staff who took no part in the formal proceedings, and who have reviewed the entire record and the Recommended Order in light of the Exceptions perform the other role. Based upon that review, the Secretary of the Department must either enter a final order consistent with the ALJ’s recommendations finding the Plan Amendment is in compliance, or determine that the Plan Amendment is not in compliance Page 2 of il Final Order Number DCA04-GM-158 and submit the Recommended Order to the Administration Commission for final agency action. Section 163.3184(9} (b), Florida Statutes. Having reviewed the entire record, the Secretary accepts the recommendation of the Administrative Law Judge as to the disposition of this case. STANDARD OF REVIEW OF RECOMMENDED ORDER AND EXCEPTIONS The Administrative Procedure Act contemplates that the Department will adopt the Recommended Order except under certain limited circumstances. The Department has only limited authority to reject or modify the ALJ’s findings of fact. Rejection or modification of conclusions of law may not form the ‘basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. Section 120.57(1) (1), Florida Statutes. The Department cannot reweigh the evidence considered by the ALJ, and cannot reject findings of fact made by the ALJ if those firdings of fact are supported by competent substantial evidence in the record. Heifetz v. Department of Business Regulation, 475 So. 2a 1277 (Fla. ist DCA Page 3 of ll Final Order Number DCA04-GM-158 1985); and Bay County School Board v. Bryan, 679 So. 2d 1246 (Fla. Ist DCA 1996) (construing a provision substantially similar to Section 120.57(1) (1), Florida Statutes); see also, Pillsbury v. Dept. of Health and Rehebilitative Services, 744 So. 2a 1040 (Fla. 2d DCA 1999). The Department may reject or modify the ALJ’s conclusions of law or interpretation of administrative rules, but only those : conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Section 120.57(1) (1), Florida Statutes. The label assigned to a statement is not dispositive as to whether it is a conclusion of law or a finding of fact. Kinney v- Department of State, 501 So. 2d 1277 (Fla. 5th DCA 1987). Conclusions of law, even though stated in the findings of fact section of a recommended order, may be considered under the same standard as any other conclusion of law. Page 4 of 11 Final Order Number DCA04-GM-158 Summary of the Amendment _and Challenge The Amendment adopted by Sarasota County Ordinance 2001-76 amends the Future Land Use Element of the County’s Comprehensive Plan by adding a “supplement” to the Element. This supplement divides the County into six Resource Management Areas and contains related goals, objectives and policies. Petitioners allege that the Department’s determination of in compliance is incorrect based upon a number of arguments. The Administrative Law Judge entered Findings, Conclusions, and an ultimate Recommendation rejecting these arguments. RULING ON EXCEPTIONS After entry of the Recommended Order, Petitioners filed Exceptions to the Recommended Order. Respondents filed Responses to Petitioners’ Exceptions. Ayech Exceptions One through Four Petitioner Ayech takes exception to paragraph 16 of the Recommended Order in which the ALJ summarizes what the Resource Management Areas (“RMAs”) and their associated policies are designed to accomplish. In support of her exceptions, Petitioner Ayech makes reference to specific statements regarding the ALJ’s general finding. Assuming, arguendo, that these references were not contradicted by competent substantial evidence in the record it is still Page 5 of 11 Final Order Number DCA04-GM-158 questionable whether these references, standing alone, would be sufficient to reject the ALJ's general finding on the design of the RMAs. Nevertheless, competent substantial evidence was presented which supports the finding. (T 2432- 79; Joint Exs. 2 - 4). Accordingly, Petitioner Ayech’s Exceptions One through Four are DENIED. Ayech’s Exception Five Petitioner Ayech’s Exception Five argues “no analysis was performed to determine the facilities necessary to dispose of sludge generated from the village and hamlets allowed under the RMA Plan.” Petitioner makes no reference to any citation requiring this specific analysis. Further, Petitioner makes no reference to record cites which would suggest that this issue was raised during the hearing or that such an analysis, to the extent required, was not conducted. Absent such a reference the Department finds no basis to accept this exception. Section 120.57(1) (k), Florida Statutes. Accordingly, Petitioner Ayech’s Exception Five is DENIED. Petitioners Manasota-88’s and Compton’s Exception One Petitioners Manasota-88’s and Compton’s Exception One appears to rely upon an incorrect reading of Finding of Fact Page 6 of 11 Final Order Number DCA04-GM-158 22 of the Recommended Order. Petitioners’ exception contends that this Finding is incorrect because the Greenway RSA does not include lands of no environmental value but are still important for environmental connectivity. Assuming this statement to be true (Petitioners gave no record cite to support this statement) it does not make Finding of Fact 22 incorrect. Instead this Finding simply states that the land within the Greenway RMA is either important for its environmental value or connectivity. There is ample competent substantial evidence in the record to support this Finding. (T 3076-78, 3106-7 and 3140). Accordingly, Petitioners Manasota-88’s and Compton’s Exception One is DENIED. Petitioners Manasota-88’s and Compton’s Exception Two Petitioners Manasota-88’s and Compton’s Exception Two is based upon style rather than substance. The Exception acknowledges the Agricultural RMA contains existing agricultural areas in the southeastern portion of the County. Further, Figure RMA-1 shows that the Agricultural RMA consists of a large section of agricultural land in the eastern/southeastern portion of the County. This Finding is supported by competent substantial evidence in the record. (T 2447-50; Joint Ex. 2, Figure RMA-1). Petitioners Manasota-88’s and Compton’s Exception Two is DENIED. Page 7 of il Final Order Number DCA04-GM-158 Petitioners Manasota-88’s and Compton’s Exception Six Petitioners Manasota-88’s and Compton’s Exception Six argues that the ALJ failed to correctly acknowledge the Petitioners’ objection to the Amendment. However, while suggesting the “correct” objection, the exception does not give any reference to the record that would support 4 finding in favor of this “correct” objection. Absent such a reference the Department finds no basis to accept this exception. Section 120.57(1) (k), Florida Statutes. Accordingly, Petitioners Manasota-88’'s and Compton’s Exception Six is DENIED. Remaining Exceptions The remainder of Petitioners’ exceptions argue that the ALJ accepted the evidence of the Respondents over that offered by the Petitioners, that the ALJ accepted the evidence of the Respondents despite contradicting evidence or that the ALJ failed to make a finding of fact that the Petitioners believe was supported by the Petitioner’s evidence. The Department cannot reweigh the evidence or make supplemental findings of fact. Prysi v. Dept. of Health, 823 So. 2d 823 (Fla. 1st DCA 2002); Lawnwood Med. Ctr. v. Agency for Health Care Admin., 678 So. 2d 421 (Fla. Page 8 of 11 Final Order Number DCA04-GM-158 lst DCA 1996). The ALJ’s findings of fact are supported by competent, substantial evidence in the record. Furthermore, these exceptions raise issues not raised during the administrative hearing, reiterate positions that were repeatedly asserted before the ALJ or are specifically addressed in the Recommended Order. Finally, these remaining exceptions fail to contain citations to the record or legal bases upon which the exceptions should be granted. Therefore, these exceptions need not be addressed again in the agency’s final order. Britt _v. Depart. of Prof’l. Reg., 492 So. 2d 697 (Fla. ist DCA 1986) disapproved on other grounds Dept. of Prof’l. Reg. Vv. Bernal, 531 So. 2d 967 (Fla. 1988); Section 120.57(1) (k), Florida Statutes. Accordingly, Petitioner Ayech’s Exceptions Six through Twelve and Petitioners Manasota-88’s and Compton’ s Exceptions Three through Twenty-One are DENIED. ORDER Upon review and consideration of the entire record of the proceeding, including the Recommended Order, it is hereby ordered that: 1. The findings of fact and conclusions of law in the Recommended Order are adopted; 2. The Administrative Law Judge’s recommendation is accepted; and Page 9 of 11 Final Order Number DCA04~GM-158 3. The comprehensive plan amendment adopted by Sarasota County Ordinance No. 2001-76, is determined to be in compliance as defined in Section 163.3184(1) (b), Florida Statutes. DONE AND ORDERED in Tallahassee, Florida. HAL. cote Thaddeus L. Cohen, Secretary DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Page 10 of 11 Final Order Number DCA04-GM-158 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished to th gersons listed below in the manner described, on this (2 " day of August, 2004. (Vie Sey Paula Ford O™ agency Clerk U.S. Mail ‘ Daniel J. Lobeck, Esquire Hanson & Wells, P.A. 2033 Main Street, Suite 403 Sarasota, Florida 34237-6041 Becky Ayech, pro se 421 Verna Road Sarasota, Florida 34240-9795 Gary K. Oldehoff, Esquire Office of the Sarasota County Attorney 1660 Ringling Boulevard Sarasota, Florida 34236-6870 Hand Delivery Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Interagency Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Page 11 of 11

Docket for Case No: 02-003898GM

Orders for Case No: 02-003898GM