Petitioner: STEVE BRASWELL, BROWN LANDHOLDING, INC. AND TRAILER RENTAL, INC.
Respondent: VILLAGE OF WELLINGTON AND DEPARTMENT OF COMMUNITY AFFAIRS
Judges: J. LAWRENCE JOHNSTON
Agency: Department of Community Affairs
Locations: Wellington, Florida
Filed: May 11, 2005
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Wednesday, July 27, 2005.
Latest Update: Dec. 24, 2024
Final Order No. DCA05-GM-201
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Petitioners,
v. DOAH Case No. 05-1682
Final Order No. DCA05-GM-201
VILLIAGE OF WELLINGTON
and DEPARTMENT OF
COMMUNITY AFFAIRS,
Respondents.
/
FINAL ORDER
This matter was considered by the Secretary of the Department of Community Affairs
(“the Department”) following receipt and consideration of a Recommended Order issued by an
Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings. A copy of the
Recommended Order is attached hereto as “Exhibit A.”
BACKGROUND
This matter involves a challenge to a comprehensive plan amendment adopted by Village
of Wellington Ordinance 2003-32, hereinafter referred to as “the Plan Amendment.”
The Department published a notice of intent to find the Plan Amendment “in
compliance,” as defined in Section 163.3184(1)(b), Florida Statutes. The Petitioners challenged
the Plan Amendment, as authorized by Section 163.3184(9)(a), Florida Statutes. Upon motion of
Respondents Village of Wellington, Administrative Law Judge (“ALJ”) J. Lawrence Johnston of
the Division of Administrative Hearings submitted his Recommended Order of Dismissal to the
Department. The ALJ recommended that the Department enter a final order dismissing the
Petition and determining the Plan Amendment to be “in compliance.” Petitioners filed
Exceptions to the Recommended Order of Dismissal.
Final Order No. DCA05-GM-201
ROLE OF THE DEPARTMENT
Throughout 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 other role is performed by 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. 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 in compliance, or determine that the Plan
Amendment is not in compliance and submit the Recommended Order to the Administration
Commission for final agency action. §163.3184(9)(b), Fla. Stat.
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), Fla. Stat. (2005)
The Department cannot reweigh the evidence considered by the ALJ, and cannot reject findings
of fact made by the ALJ if those findings of fact are supported by competent substantial evidence
in the record. Heifetz v. Dep’t of Bus. Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Bay
N
Final Order No. DCA05-GM-201
County Sch. Bd. v. Bryan, 679 So.2d 1246 (Fla. 1st DCA 1996) (construing a provision
substantially similar to Section 120.57(1)(), Florida Statutes). See also, Pillsbury v. Dep’t of
Health and Rehab. Servs., 744 So. 2d 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)(), Fla. Stat. (2005)
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. Dep*t 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.
THE PLAN AMENDMENT.
The Plan Amendment would change the future land use designation of a 144.36 acre
parcel from “Palm Beach County Low Residential” to “Residential C.” Of several notices of
public hearing for the Plan Amendment, one incorrectly referred to “Ordinance No. 2004-32”
instead of 2003-32.
RULINGS ON EXCEPTIONS
Petitioners take exception to the ALJ’s conclusion that compliance review does not
include review of the local government’s adherence to public participation procedures. However,
the ALJ’s conclusion is supported by Current v. Town of Jupiter, DOAH Case No. 03-0718GM,
2003 WL 22451197 (DOAH October 24, 2003; DCA April 8, 2004) and the cases cited therein.
Final Order No. DCA05-GM-201
The ALJ’s conclusion of law is more reasonable than the interpretation suggested by the
Petitioner.
The Petitioners also take exception to the ALJ’s conclusion that, even if compliance
review included a consideration of adherence to notice and procedural requirements, the notice at
issue in the Petition contained the necessary elements under the applicable statute (Section
166.041(3)(c)2.b., Florida Satutes). Petitioners argue that even minor errors can compromise the
sufficiency of the notice because of the potential of such errors to mislead recipients of the
notice. However, the incorrect ordinance number only occurred in only one of three otherwise
identical; notices published over a five month period. Moreover, the title of the ordinance
included’ the common name of the affected parcel, and a desctiption of the parcel’s location.
Thus, the ALJ’s conclusion is more reasonable than that advanced by the Petitioners.
The Petitioner’s Exceptions 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
3. Comprehensive plan amendment Ordinance 2003-32, adopted by Village of
Wellingotn, is determined to be in compliance as defined in Section 163.3184(1)(b), Florida
Statutes.
DONE AND ORDERED in Tallahassee, Florida.
Thaddeus L. Cohen, AIA, Secretary
DEPARTMENT OF COMMUNITY AFFAIRS
Final Order No. DCA05-GM-201
NOTICE OF RIGHTS
ANY PARTY TO THIS FINAL ORDER HAS THE RIGHT TO SEEK JUDICIAL
REVIEW OF THE ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND
FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110.
TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE
FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK
BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY
THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST
BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE
PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH
THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY
THE FILING FEE SPECIFIED INSECTION 35.22(3), FLORIDA STATUTES.
YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL
IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE
DISTRICT COURT OF APPEAL.
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 Communi irs, and that true and correct
copies have been furnished to the persons listed below this of October, 2005.
a Ford, Agency Cler
DEPARTMENT OF COMMUNITY AFFAIRS
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100
By U.S. Mail:
Tom, Wenham By Interagency Mail:
Village of Wellington
14000 Greenbriar Boulevard. The Honorable J. Lawrence Johnston
Wellington, Florida 33414 Administrative Law Judge
Division of Administrative Hearings
Gary Brandenburg, Esquire The DeSoto Building
660 U.S. Highway One, Third Floor 1230 Apalachee Parkway
North Palm Beach, Florida 33408 Tallahassee, FL 32399-3060
Final Order No. DCA05-GM-201
Michael Busha
301 East Ocean Boulevard
Suite 300
Stuart, Florida 34994
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STEVE BRASWELL, BROWN
LANDHOLDING, INC. and ‘TRAILER
RENTAL, INC.,
Petitioners,
vs. Case No. 05-1682GM
VILLAGE OF WELLINGTON and
DEPARTMENT OF COMMUNITY
AFFAIRS,
Respondents.
RECOMMENDED ORDER OF DISMISSAL
On May 11, 2005, the Department of Community Affairs (DCA)
referred to the Division of Administrative Hearings (DOAH) a
Request for Remand or, in the Alternative, Petition for Formal
Administrative Hearing (Petition). The Petition was directed to
a comprehensive plan future land use map (FLUM) amendment adopted
by the Village of Wellington (Village) by Ordinance No. 2003-32,
and was based entirely on an error in the published notice of the
adoption hearing--namely, the notice reference Ordinance No.
2004-32 instead of 2003-32.
On May 19, 2005, the Village filed a Motion to Dismiss the
Petition. The Petitioners filed a Response on May 24, 2005. DCA
did not file a response.
Compliance review generally does not include review of the
local government's adherence to notice and other procedural
requirements, except to determine "whether the transmittal and
adoption hearings on the FLUM amendment took place as required by
Section 163.3184(15)." See Current v. Town of Jupiter, DOAH Case
No. 03-0718GM, 2003 WL 22451197, at *16 (DOAH October 24, 2003;
DCA April, 8, 2004).
In support of their position, the Petitioners cite Coleman
v. City of Key West, 807 So. 2d 84 (Fla. 3d DCA 2001), and Lamar
Advertising of Mobile, Inc. v. City of Lakeland, 189 F.R.D. 480
(M.D. Fla. 1999), for the proposition that "strict compliance
with statutory notice requirements is jurisdictional and a
mandatory prerequisite to valid enactment of the proposed
-amendment" and that "failure to strictly comply renders any such
ordinance null and void." However, it is noted that those were
courts of competent jurisdiction deciding the issue whether an
ordinance was void for failure to follow required procedures, not
a state administrative agency deciding whether a comprehensive
plan amendment was "in compliance." As stated in the Current
Final Order, the compliance review issue in this case is "whether
the transmittal and adoption hearings on: the FLUM amendment took
place as required by Section 163.3184(15)."
Section 163.3184(15) (a), Florida Statutes (2004), provides
in pertinent part:
(a) For the purposes of transmitting or
adopting a comprehensive plan or plan
amendment, the notice requirements in
chapters 125 and 166 are superseded by this
subsection, except as provided in this part.
* * *
(e) If the proposed comprehensive plan or
plan amendment changes the actual list of
permitted, conditional, or prohibited uses
within a future land use category or changes
the actual future land use map designation of
a parcel or parcels of land, the required
advertisements shall be in the format
prescribed by s. 125.66(4) (b)2. for a county
or by s. 166.041(3) (c)2.b. fora
municipality.
Assuming Section 163.3184(15) (e) makes the format of the adoption
hearing notice a compliance review criterion under the Current
Final Order, the ordinance number may have been. incorrect in’ the
published notice, but Section 166.041(3) (c)2.b., Florida Statutes
(2004), does not include the ordinance number in the required
format. The statute does require the title of the ordinance to
be included in the notice, and it appears on the face of the
Petition that the notice included the correct title of the
ordinance. The Petition does not allege any other departure from
the required format. For these reasons, the published notice
complied with the statutes, notwithstanding inclusion of an
incorrect ordinance number in the published notice.
Under Florida Administrative Code Rule 28-106.201(4), the
Petitioners should be given an opportunity: to cure a defect in
the Petition "unless it conclusively appears from the face of the
petition that the defect cannot be cured," Since the "defect" in
this case is that the allegations in the Petition are legally
insufficient, it cannot be "cured" by amendment, and the Petition
should be dismissed with prejudice.
RECOMMENDATION
Based upon the foregoing, it is
RECOMMENDED that DCA enter a final order dismissing the
Petition and determining the Village's Plan Amendment (Ordinance
2003-32) to be "in compliance."
DONE AND ENTERED this 27th day of duly, 2005, in
Tallahassee, Leon County, Florida.
COPIES FURNISHED:
Thaddeus Cohen, Secretary
Department of Community Affairs
2555 Shimard Oak Boulevard, Suite 100
Florida 32399-2100
Tallahassee,
Ope ii
J. LAWRENCE JOHNSTON
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 27th day of July, 2005.
Heidi Hughes, General Counsel
Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Florida 32399-2100
Tallahassee,
Richard E. Shine, Esquire
Department of community Affairs
2555 Shumard Oak Boulevard
Tallahassee,
Florida 32399-2100
ba
Gary M. Brandenburg, Esquire
660 U.S. Highway One
Third Floor
North Palm Beach, Florida 33408
Jeffrey S. Kurtz, Esquire
Brinkley, McNerney, Morgan, Solomon
& Tatum, LLP
200 Hast Las Olas Boulevard, Suite 1900
Fort Lauderdale, Florida 33301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions wit
days from the date of this Recommended Order of Dismissal.
exceptions to this Recommended Order of Dismissal should be filed
with the agency that will issue the final order in this case.
Docket for Case No: 05-001682GM
Issue Date |
Proceedings |
Oct. 31, 2005 |
Final Order filed.
|
Jul. 27, 2005 |
Recommended Order of Dismissal. CASE CLOSED.
|
Jul. 26, 2005 |
Status Report filed.
|
May 24, 2005 |
Response to Motion to Dismiss filed.
|
May 20, 2005 |
Petitioner`s Response to Initial Order filed.
|
May 19, 2005 |
Motion to Dismiss Petitioners` Request for Remand or, in the Alternative, Petition for Formal Administrative Hearing filed.
|
May 18, 2005 |
Status Report filed.
|
May 17, 2005 |
Letter to A. Cole from G. Brandenburg advising of dates available for hearing filed.
|
May 16, 2005 |
Petitioner`s Response to Initial Order filed.
|
May 12, 2005 |
Initial Order.
|
May 11, 2005 |
Agency referral filed.
|