STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, ) STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2992DRI

) FLORIDA EAST COAST RAILWAY COMPANY ) and TOWN OF MEDLEY, )

)

Respondents, )

and )

) SAVE OUR WATER, INC., and FRIENDS ) OF THE EVERGLADES, INC., )

)

Intervenors. )

)

RECOMMENDED ORDER

THIS MATTER comes before the Division of Administrative Hearings, through its duly designated Hearing Officer, William E. Williams, on remand from the Florida Land and Water Adjudicatory Commission to consider the narrow question of whether Dade County's transmittal of July, 1983, to the Department of Community Affairs was effective to commence the 45-day appeal period under Section 380.07(2), Florida Statutes. Initially, Respondents, Florida East Coast Railway Company ("FEC") and Metropolitan Dade County, Florida ("Dade County"), filed motions to dismiss the appeal filed by the Department of Community Affairs ("DCA"). The motions were heard by the Hearing Officer on November 2, 1983. On November 9, 1983, a Recommended Order of Dismissal was rendered. Subsequent to the transmittal of the Recommended Order, the Department of Community Affairs filed exceptions with the Florida Land and Water Adjudicatory Commission. These exceptions raised issues not previously presented to the Hearing Officer. Upon review of the exceptions and Respondents' reply thereto, the staff for the Florida Land and Water Adjudicatory Commission requested the parties to stipulate to a remand of the proceeding to the Division of Administrative Hearings so that the Hearing Officer could further consider the matters raised in DCA's exceptions. The parties consented to the remand and, on January 25, 1984, an order of remand was issued. The Order of Remand entered by the Florida Land and Water Adjudicatory Commission provided that:

Resolution of this case turns upon the narrow question of whether Dade County's transmittal of July 8, 1983 to the Depart- ment of Community Affairs was effective

to commence the 45-day appeal time under Section 380.07(2), F.S. Because this question is critical to the Commission's jurisdiction and because this is a mixed question of law and fact potentially

involving both the interpretation of the Dade County Code and Ordinances, as well as a review of past patterns and

practices of Dade County and the Depart- sent of Community Affairs, the Commission finds it necessary to fully develop a record on this issue before the Hearing Officer prior to its consideration.

In light of the above factors, the Com- mission finds that exceptional circum- stances exist which warrant remand for further proceedings on the issue of whether the transmittal of July 8,

1983 commences the statutory 45 day

appeal period under Section 380.07(2), F. S.

Pursuant to stipulation of the parties, a full hearing with testimony and the introduction of exhibits was conducted in Miami, Florida, on April 13, 1984, without the Hearing Officer present. The parties stipulated that there was no issue as to the credibility of witnesses and, therefore, the matter could be determined by the Hearing Officer on the record submitted.

FINDINGS OF FACT

1. In June, 1982, Florida East Coast Railway Company filed an Application for Development Approval for a Development of Regional Impact to be called "F.E.C. Park of Industry and Commerce" to be located in Dade County, Florida. On June 23, 1983, the Board of County Commissioners of Dade County adopted Resolution Z-114-83, a Development Order approving with conditions the development proposed by Florida East Coast Railway Company. A copy of the Development Order was transmitted to the Clerk of the Board of County Commissioners on July 7, 1983.

   
   

2. By letter dated July 8, 1983, and received by the Department of Community Affairs on July 11, 1983, the Assistant Director of the Building and Zoning Department of Dade County advised that:

   
   

   In compliance with Section 380, Florida Statutes, we are enclosing , herewith,

   a copy of Resolution No. Z-114-83, adopted by the Board of County Commissioners on June 23, 1983, approving a development

   of regional impact applied for by Florida East Coast Railway Company to permit the development of the above-described property for an industrial park complex involving

   a district boundary change from GU (interim) to IU-C (Industry-Controlled) and an Unusual Use to permit two lake excavations.

   
   

3. By letter dated July 19, 1983, the Department of Community Affairs responded to receipt of the copy of the Development Order as follows:

   
   

   We have received the copy of the Florida East Coast Railway Development Order you sent on July 8 in accordance with Chapter

   380, Florida Statues[sic]. However, to fulfill the requirements of the law, the Development Order must he signed and include all exhibits.

   
   

   Therefore would you please he kind enough to provide the Department with a signed copy of Resolution #Z-114-83. . . .

   
   

4. By letter dated July 27, 1983, and received by the Department of Community Affairs on August 1, 1983, Dade County advised that:

   
   

   In accordance with your letter of July 19, 1983, and our telephone conversation of this date, I am enclosing, herewith, a certified copy of Resolution Z-114-83;

   as I explained to you on the telephone, the Board of County Commissioners does not sign its resolutions.

   
   

5. The only significant difference between the copy of the Development Order received by the Department of Community Affairs on July 11, 1983, and the one received on August 1, 1983, is a certificate signed by a Deputy Clerk in the office of the Clerk of the Circuit Court in Dade County certifying that the latter copy of Resolution No. Z-114-83 was a true and correct copy of the original of that document.

   
   

6. Since at least 1946, Dade County has adopted and codified its zoning actions in the following manner. After the Board of County Commissioners acts on zoning applications at a regularly scheduled zoning meeting, zoning resolutions are prepared by Mr. Chester C. Czebrinski, who is in attendance at the meetings. Mr. Czebrinski is an attorney and is the Assistant Director of the Dade County Building and Zoning Department. He is also legal counsel to the Department and is a Deputy Clerk of the Board of County Commissioners. He has performed the functions described herein since 1946.

   
   

7. While in attendance at the zoning meeting, Mr. Czebrinski records the action of the Board of County Commissioners on zoning applications noting any conditions adopted by the Board. In preparing the zoning resolution, he uses information obtained from the Clerk of the County Commission as to the resolution number, the names of the Commissioners who made and seconded the motion, and the vote on the resolution. When such resolutions are prepared, they are never re-submitted to the Board of County Commissioners for any further action or review.

   
   

8. Copies of final zoning resolutions prepared by Mr. Czebrinski are sent to the Clerk of the County Commission (two original copies), other county departments, to the applicant, and to the attorneys of record. The purpose of transmitting the resolution to those departments and persons is to notify them of the official final action taken by the Board of County Commissioners. Additional copies of resolutions are also placed in the zoning hearing file. All such resolutions transmitted contain a transmittal date on the face of the resolution. The purpose of the transmittal date is to commence the appeal period within which an appeal may be taken to circuit court from the action of the Board of County Commissioners pursuant to the Code of Metropolitan Dade County. All such resolutions transmitted by Mr. Czebrinski are unstamped, uncertified copies of the final zoning resolution.

9. Upon receipt of the transmittal of two copies of the resolution from Mr. Czebrinski, the office of the Clerk of the Board stamps both with the name of the deputy clerk, who for the past eleven years has been Raymond Reid. The letters on one stamp (the large stamp) are larger than the letters on the other, smaller stamp. The copies stamped with the large stamp are also stamped with the county seal. This copy is retained by the Clerk and is never certified.

   The other copy, stamped with a small stamp, is not stamped with the county seal. This copy is sent to Mr. Czebrinski with a separate certification by the Clerk on a separate page attached to the back of the resolution.

   
   

10. Upon request, the Clerk's office will provide a copy of the zoning resolution retained by it. Such a copy is never certified, even for a state agency, unless a specific request for certification is made. An individual requesting certification is required to pay the Clerk a fee of one dollar. Section 2-1, Rule 1.05, Dade County Code, is interpreted and applied by Dade County not to require certification of the resolution physically retained by the Clerk and not to require certification of any copies of that resolution unless a specific request for certification is made.

    
    

11. If Mr. Czebrinski receives a request for a copy of a zoning resolution, he provides one of the additional unstamped copies made prior to transmittal of the Clerk. If a certified copy of the resolution is requested, Mr. Czebrinski would make a copy of the resolution with the certification and then place a further certificate on it indicating that it was a copy on file with his office.

    
    

12. The above procedures are for normal zoning actions of the Board of County Commissioners and differ from untypical procedures utilized for Zoning Appeals Board (ZAB) resolutions (which are certified by the Building and Zoning Director) and for resolutions pertaining to county airport matters, which are prepared by the County Attorney's office.

    
    

13. Where a resolution encompasses an order of the Board of County Commissioners for a Development of Regional Impact, Mr. Czebrinski prepares a resolution in the manner described above and distributes it to all of the previously mentioned parties, and in addition to the Florida Department of Community Affairs and to the South Florida Regional Planning Council. Mr. Czebrinski has had responsibility for transmitting copies to the State Land Planning Agency pursuant to Chapter 380, Florida Statutes, since the adoption of the state law. The resolutions transmitted have been blank, uncertified copies. Each copy is accompanied by a transmittal letter which is signed by Mr. Czebrinski.

    
    

14. Although in a few instances the files of the Department of Community Affairs contain items where the typical County Commission zoning procedure was not applicable, this was because either the special procedure of the ZAB or airport zoning applied, because the Department has specifically requested a certified copy in an isolated case, or because the Department had received a transmittal from a non-county source.

    
    

15. On September 12, 1983, the Department of Community Affairs filed a Notice of Appeal with the Florida Land and Water Adjudicatory Commission objecting to various portions of the Development Order.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings his jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.

    
    

17. Section 380.07(2), Florida Statutes, provides, in pertinent part, that:

    
    

    whenever any local government issues any development order . . . in regard to any development of regional impact, copies of such orders as prescribed by rule by the state land planning agency shall he transmitted to the state land planning agency . . . Within 45 days after the order is rendered . . . 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

    . . . . (Emphasis added.)

    
    

18. In Fox v. South Florida Regional Planning Council, 327 So.2d 56 (Fla. 1st DCA 1976), the court held that, for purposes of computing whether an appeal from the entry of a development order is timely, the order is considered "rendered" when it is "issued" and "transmitted." Nothing in Chapter 380, Florida Statutes, sets forth requirements for either the form or contents of a development order. However, Petitioner in this case, acting as the state land planning agency, is authorized in Section 380.07(2) to prescribe by rule those orders required to be transmitted by a local government authority issuing a development order. Petitioner has promulgated no such rules, but has argued in this cause that its policy has been to require a signed copy of development orders, including all exhibits or attachments appended thereto or referred to in the text of the orders. It is, however, concluded as a matter of law that in light of the direct legislative mandate to prescribe such requirements by rule, Petitioner is precluded from developing policies in this regard by ad hoc adjudication. The purpose of setting time limits for taking appeals from development orders was to promote finality and certainty, a policy which could hardly be advanced outside the rule making process. Accordingly, since the legislature has mandated that transmittal of a development order commences the 45-day period for appeal, and since Petitioner in this cause filed its appeal beyond 45 days from the date on which the development order was "transmitted" to Petitioner, it is

RECOMMENDED:

That a Final Order be entered by the Florida Land and Water Adjudicatory Commission dismissing this cause.

DONE AND ENTERED this 17th day of May, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 17th day of May, 1984.

HONORABLE GEORGE FIRESTONE BARRY PETERSON, EXECUTIVE DIRECTOR SECRETARY OF STATE SOUTH FLORIDA REGIONAL

THE CAPITOL PLANNING COUNCIL TALLAHASSEE, FLORIDA 32301 3440 HOLLYWOOD BLVD., SUITE 40

HOLLYWOOD, FLORIDA 33021

HONORABLE JIM SMITH ROBERT KRAWCHECK, ESQUIRE

ATTORNEY GENERAL ASSISTANT DADE COUNTY ATTORNEY

THE CAPITOL 73 WEST FLAGLER STREET TALLAHASSEE, FLORIDA 32301 16TH FLOOR, DADE COUNTY COURTHOUSE

MIAMI, FLORIDA 33130

HONORABLE GERALD LEWIS JACK MILBERY, ESQUIRE COMPTROLLER VICTORIA L. SEMORA, ESQUIRE

THE CAPITOL 1940 HARRISON STREET, SUITE 302 TALLAHASSEE, FLORIDA 32301 HOLLYWOOD, FLORIDA 33020

HONORABLE DOYLE CONNER COMMISSIONER OF AGRICULTURE THE CAPITOL

TALLAHASSEE, FLORIDA 32301

HONORABLE RALPH O. TURLINGTON COMMISSIONER OF EDUCATION

THE CAPITOL

TALLAHASSEE, FLORIDA 32301

HONORABLE BILL GUNTER INSURANCE COMMISSIONER AND

TREASURER THE CAPITOL

TALLAHASSEE, FLORIDA 32301

JOHN T. HERNDON, SECRETARY FLORIDA LAND AND WATER

ADJUDICATORY COMMISSION OFFICE OF THE GOVERNOR THE CAPITOL

TALLAHASSEE, FLORIDA 32301

LINDA L. SHELLEY, ESQUIRE OFFICE OF THE GOVERNOR THE CAPITOL

TALLAHASSEE, FLORIDA 32301

MAYNARD A. GROSS, ESQUIRE

WHITMAN, WOLFE, GROSS & SALMON, P.A. 10651 NORTH KENDALL DRIVE

MIAMI, FLORIDA 33176

ALAN S. GOLD, ESQUIRE GREENBERG, TRAURIG, ASKEW,

HOFFMAN, LIPOFF, ROSEN & QUENTELL 1401 BRICKELL AVENUE, PH-1

MIAMI, FLORIDA 33131

Docket for Case No: 83-002992

Orders for Case No: 83-002992