STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE CITIZEN'S POLITICAL )
COMMITTEE, INC. and )
JAMES K. KESSLER, )
)
Petitioners, )
)
vs. ) CASE NO. 90-4545GM
) COLLIER COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held in Naples, Florida, on July 22-26, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Robert C. Apgar
Haben, Culpepper, et al. Post Office Box 10095 Tallahassee, Florida 32301
For Respondent Marjorie M. Student Collier County: Assistant County Attorney
Collier County Courthouse 3301 East Tamiami Trail Naples, Florida 33962
William W. Merrill, III Icard, Merrill, et al. Postal Drawer 4195
Sarasota, Florida 34230
For Respondent Stephanie M. Callahan Department of Michael P. Donaldson Community Affairs: Assistant General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Petitioner Sewell H. Corkran, pro se Sewell H. 213 Ninth Avenue South
Corkran: 1/ Naples, Florida 33940
STATEMENT OF THE ISSUE
The issue in this case is whether Capital Improvement Element Policy
and F of the Collier County Growth Management Plan, as amended, is in compliance with provisions of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
PRELIMINARY STATEMENT
Petitioners commenced the above-styled proceeding by filing with the Department of Community Affairs on July 13, 1990, a petition challenging provisions of the Collier County Growth Management Plan, as amended.
The above-styled case was consolidated with three other cases for the purpose of hearing. The three cases are: The Citizen's Political Committee, Inc. and James K. Kessler v. Collier County and Department of Community Affairs, DOAH Case No. 90-8101GM; Department of Community Affairs and Sewell H. Corkran, as petitioners, and The Citizen's Political Committee, Inc. and James K. Kessler, as intervenors, v. Collier County, DOAH Case No. 91-0858GM; and Sewell
H. Corkran, as petitioner, and The Citizen's Political Committee, Inc. and James
Kessler, as intervenors, v. Collier County and Department of Community Affairs, DOAH Case No. 91-0994GM.
The three cases are challenges to land development regulations, which require a final order from the hearing officer. The above-styled case is a challenge to a plan amendment, which requires a recommended order from the hearing officer. The undersigned will issue a separate final order as to the three cases at a later date. The transcript and exhibits, which pertain to all four cases, will be retained with the three cases.
The Third Amended Petition of the Citizen's Political Committee, Inc. and James K. Kessler Challenging Determination of Compliance was filed February 26, 1991. Due to a partial settlement, the allegations of the Third Amended Petition actually tried by the parties involve only Capital Improvement Element Policy 1.5.1.E and F. The Third Amended Petition alleges that these plan provisions are inconsistent with Section 163.3177(3)(a)3 and (10)(h) and Rules 9J-5.005(2)(a) and (6); 9J-5.0055, including 9J-5.0055(2)(a) and (b); and 9J- 5.016, including 9J-5.016(2) and (3)(b)3. and 5.
In the Joint Prehearing Stipulation filed July 24, 1991, the parties identified the following issues relevant to the
above-styled case:
Whether Capital Improvement Element Policy 1.5.1 ensures the availability of public facilities and the adequacy of those facilities, including acceptable levels of service, as required by Section 163.3177(3)(a)3.
Whether Capital Improvement Element Policy 1.5.1 requires that the public facilities and services needed to support development be available concurrent with the impacts of development, as required by Section 163.3177(10)(h).
Whether Capital Improvement Element Policy 1.5.1 is based on relevant and appropriate data, as required by Rule 9J-5.005(2)(a).
Whether Capital Improvement Element Policy 1.5.1.E establishes minimum concurrency requirements for potable water, sewer, solid waste, drainage, and parks and recreation, as required by Rule 9J-5.0055(2)(a) and (b).
Whether Capital Improvement Element Policy 1.5.1 ensures that funding and construction of improvements are scheduled to guarantee that the improvements are provided when needed, as required by Rule 9J-5.016.
Whether Capital Improvement Element Policy 1.5.1 demonstrates Collier County's ability to manage the land development process so that the public- facility needs created by previously issued development orders or future development do not exceed the ability of the local government to fund and provide capital improvements, as required by Rule 9J-5.016(3)(b)3 and 5.
The references in the issues to Policy 1.5.1 are, based on stipulations of counsel during the hearing, treated as a challenge only to Policy 1.5.1.E and F. 2/ Based on the findings and conclusions set forth below, it has not been necessary to address all of these issues.
At the hearing, The Citizen's Political Committee, Inc. and James K. Kessler called four witnesses and offered into evidence nine exhibits. Collier County called three witnesses and offered into evidence 11 exhibits. Department of Community Affairs called one witness and offered into evidence seven exhibits. Sewell H. Corkran called one witness, himself, and offered into evidence two exhibits. All exhibits were admitted.
A transcript was filed December 11, 1991. Each party, except Sewell H. Corkran, filed a proposed recommended order with respect to the above-styled case. Treatment of the proposed findings is detailed in the appendix.
FINDINGS OF FACT
The Parties, the Plan, and the Amendment
The Citizen's Political Committee, Inc. (Citizens) is a nonprofit corporation registered in the State of Florida on April 18, 1990. Citizens maintains an office in Collier County,
Florida. Citizens is composed of natural persons who reside in Collier County.
James K. Kessler (Kessler) is the Chairman of Citizens. He owns property in Collier County, where he also resides.
Collier County adopted its Growth Management Plan on January 10, 1989. On March 2, 1989, DCA issued its Notice of Intent to Find the Plan Not in Compliance based on, among other provisions, Capital Improvement Element (CIE) Policy 1.5.1.D, E, and F. The Notice of Intent contains a more detailed Statement of Intent (SOI).
The first objection in the SOI is that CIE Policy 1.5.1.E "does not ensure that the necessary public facilities and services will be available concurrent with the impacts of the development." Noting that this and two other policies would allow development orders to be issued based on public facilities scheduled up to five years later, the SOI explains: "These policies do not ensure the availability of necessary public facilities and services concurrent with the impacts of development, as required by Rules 9J-5.005(3), 9J- 5.006(3)(c)3, and 9J-5.016(3)(c)6 . . . and Subsections 163.3177(3) and (10)(h)
. . .."
The SOI recommends that the first sentence of CIE Policy 1.5.1.E be revised to read: "Construction of required facilities are scheduled in the County's Schedule of Capital Improvements prior to October 1, 1994, and are scheduled so that the facilities will be available concurrent with the impacts of development."
The SOI notes that CIE Policy 1.5.1.E.1.a provides for the suspension of development orders or permits if the required public facilities are removed from the County's Schedule of Capital Improvements. But the SOI complains that the policy ignores the possibility of the delay or deferral of such facilities. The SOI recommends that CIE Policy 1.5.1.E.1.a be revised to cover the possibility of the delay or deferral of a facility.
As to CIE Policy 1.5.1.F, the SOI states that the determination of concurrency must occur prior to the approval of the development order, not later at the point of the issuance of a certificate of occupancy.
In September, 1989, DCA and Collier County entered into a Stipulated Settlement Agreement under which Collier County agreed to adopt plan amendments to CIE Policy 1.5.1. The Stipulated Settlement Agreement contains an exhibit setting forth the language sought by DCA. Inexplicably departing from the recommended language for CIE Policy 1.5.1.E set forth in the SOI, the revised language in the settlement agreement for CIE Policy 1.5.1.E, 1.5.1.E.1.a, and
is exactly what Collier County adopted in its plan amendments.
Collier County later transmitted to DCA proposed plan amendments, and, on December 4, 1989, DCA issued its Objections, Comments, and Recommendations (ORC) citing no problems with the relevant plan amendments.
Citizens submitted written objections to the plan amendments by letters on April 3, 1990, to the Collier County Planning Commission, and April 23, 1990, to the Collier County Commission. Kessler signed the April 3 letter, as "Chairman," and the April 23 letter individually. The letters were submitted on behalf of Kessler individually and Citizens.
The April 3 letter states, in part:
On behalf of The Citizen's Political Committee, Inc., I would like to register an objection to the proposed amendments to the Collier County Plan currently under review by the Planning Commission. . . .
The letter complains exclusively about plan provisions corresponding to the part of the above-styled case that Petitioners and Collier County settled. The April
23 letter, about which some dispute exists as to its receipt, is similarly limited.
On May 1, 1990, Collier County adopted the settlement plan amendments that revised CIE Policy 1.5.1. 3/
CIE Policy 1.5.1, which addresses all public facilities for which concurrency is required except roads, 4/ provides that concurrency is attained if any of five conditions are met. The first four conditions require that, when the development order is issued: A) the required facilities are in place or the building permit is conditioned upon the required facilities being in place when
the impact of development occurs; B) the required facilities are under construction; C) the required facilities are the subject of a binding contract for construction; and D) the required facilities are included in the County's adopted budget. These conditions, which are unchallenged by Petitioners, are identical to the first four alternatives in the Margolis letter and Pelham speech.
CIE Policy 1.5.1.E requires that the required facilities be contained in the five-year schedule of capital improvements prior to October 1, 1994. CIE Policy 1.5.1.E does not specify when the concurrency determination is to be made. With respect to the other subsections of Policy 1.5.1, the concurrency determination is made when the development order (or building permit) is issued.
CIE Policy 1.5.1.E represents a significant departure from the recommended language in the SOI, which required that even scheduled capital improvements be available concurrent with the impacts of the development. However, CIE Policy 1.5.1.E corresponds to the fifth alternative in the Margolis letter and Pelham speech.
Except that it is available only for the first five years of the plan, 5/ CIE Policy 1.5.1.E is not limited to special circumstances, such as for public facilities already operating over-capacity or below their adopted level of service standards when the plan was adopted. The development order issued in reliance upon CIE Policy 1.5.1.E is suspended if the required capital project is delayed or removed from the five- year schedule. The impact from development already completed before the delay or removal of the required facility would exacerbate already-existing infrastructure deficiencies. However, CIE Policy
1.5.1.F assures that required facilities, on which development orders have been issued in reliance, may not be delayed or removed from the five-year schedule.
On June 23, 1990, DCA published its Notice of Intent to Find the Plan, as amended, in compliance.
On July 13, 1990, Citizens and Kessler (collectively, Petitioners) filed a Petition Challenging Determination of Compliance. In addition to allegations concerning an unrelated matter that has since been settled, Petitioners alleged that CIE Policy 1.5.1.E and F "permits development to proceed in a manner without adequate assurances that facilities and services are available concurrent with the impacts of development." The Petition alleges that these provisions are inconsistent with Section 163.3177(10)(h) and Rule 9J- 5.0055(2)(a), which address concurrency. 6/
Concurrency
Prior to the promulgation of Rule 9J-5.0055, which is the concurrency rule, DCA assisted local governments,
including Collier County, in the interpretation of the concurrency requirement of Chapter 163, Part II, Florida Statutes (the Act). On April 27, 1988, which is about nine months before the County adopted its original plan under the Act, DCA sent to Collier County a package containing various materials devoted largely to concurrency provisions. The package included a 9- page letter dated March 7, 1988, from then-Secretary Tom Pelham to Senator Gwen Margolis (Margolis letter) and a 10-page speech of then-Secretary Pelham to the House Committee on Community Affairs on February 25, 1988 (Pelham speech).
The Margolis letter and Pelham speech discuss concurrency at great length. The letter and speech constitute the best sources available in early 1988 of DCA's interpretation of the statutory requirements of concurrency.
Relevant portions of the Margolis letter state:
. . . As I have stated publicly many times, the concurrency requirement is the teeth of
the 1985 Growth Management Act; it distinguishes growth management from mere planning. Surely
the logic of requiring the timely provision of adequate facilities to serve development can
no longer be seriously questioned. The Department strongly believes that Florida must retain the concurrency requirement if we are to eliminate
our existing infrastructure deficiencies and effectively manage new growth and development in the future. . . .
Compliance with the concurrency requirement will not be easy. If provision of adequate facilities to accommodate growth were easy, Florida would not have tremendous infrastructure deficiencies.
However, although the concurrency requirement is a tough requirement, it will not bring the state to a screeching halt if it is applied with common sense in a reasonable and flexible manner. The Department of Community Affairs does not assume that the legislature intended that this law be applied in an inflexible, unreasonable and unworkable manner. The Department assumes, as courts always do, that the legislature intended to enact a law that would work if construed and applied in a reasonable manner so as to avoid absurd results. I believe that the concurrency requirement must be applied reasonably, it must be applied with common sense, and it
must be applied in a manner that is workable. Since becoming Secretary on February 2, 1987, I have repeatedly stated that this is the manner and spirit in which the Department is going to approach the Growth Management Act. Taking an unreasonable and inflexible approach would, in my opinion, result in a very quick collapse of our new comprehensive planning process.
The statutory concurrency provisions cannot be construed and interpreted in isolation from the other provisions of the Growth Management Act. It is important that we interpret and apply the various provisions of the Growth Management Act in a manner that will give force and effect to all of the requirements
of the Act. The Department is not going to interpret one provision of the Act, whether it
be the concurrency provision or other provisions, in a manner that makes it impossible to accomplish the results which the legislature intended in other sections of the Act. We all need to keep in mind that we are dealing with a planning statute. Planning by its very nature must be flexible. No plan is ever perfect and no plan can be written today that is going to accurately reflect in every way conditions next year, much less five years from now. Any planning process, to be effective, must have flexibility. I believe that is true of the concurrency requirement
as well as all other aspects of the local comprehensive planning process. "Flexibility" is not to be equated with "meaninglessness." The concurrency requirement must have some teeth in it; it cannot be defined as allowing the provision of adequate facilities to be postponed indefinitely or for an unreasonable period of time, nor can it be construed to allow the issuance of development permits without assurance that the necessary facilities will be available within a reasonable period
of time.
What will satisfy the concurrency requirement? The Department rejects as totally unreasonable and unworkable the position that concurrency can only mean that from the moment the concurrency requirement goes into effect, all necessary facilities must actually be in place before a development permit can be issued.
The legislature could not possibly have intended such an interpretation because it is totally unrealistic and unworkable. The
Department rejects that approach to the statute.
The Department believes that the following will satisfy the concurrency requirement:
The necessary facilities are in place at the time a development permit is issued, or a development permit is issued subject to the condition that the necessary facilities will be in place when the impacts of development occur.
The necessary facilities are under construction at the time a permit is issued.
The necessary facilities are the subject of a binding contract executed for the construction of those facilities at the time a development permit is issued.
The necessary facilities have been included in the local government's budget at the time a development permit is issued even though the facilities are not yet the subject of a binding contract for their construction.
In addition to these four situations, the Department believes that local governments may also devise and implement other concurrency management systems that will satisfy the Growth Management Act. Such systems, which will be discussed in more detail in our response to Question #3 of your January 12 letter, must ensure that the necessary facilities, both to eliminate existing infrastructure deficiencies and to accommodate new development, will be available within a reasonable period of time.
Utilization of such concurrency management systems provide local governments with flexibility in meeting the concurrency requirement while ensuring that a comprehensive plan for provision of adequate facilities will be implemented. In the absence of such a plan, development permits can only be issued pursuant to one of the situations described
in paragraphs (1)-(4) above.
The Margolis letter indicates that a local government may wish to employ a tiered level of service standard, especially in order to deal with existing infrastructure deficiencies. For an initial period, a more relaxed level of service standard would be employed. Once the local government had given itself time to find adequate revenues to address these deficiencies in public facilities, a more rigorous level of service standard would be adopted. Likewise, different level of service standards could be used in different areas to direct growth toward and away from certain places.
The third question in the Margolis letter asks whether a local government can issue a development order if a facility is over-capacity or if the development would drive the facility over-capacity and result in a temporary reduction in the adopted level of service standard. The question asks whether, under these conditions, it makes any difference if capital improvements are contained in the five-year schedule of capital improvements and, if so, whether the improvements must be adequate. The question also asks about conditional development orders.
DCA's response to the third question states:
Mere inclusion of a facility or infrastructure in a five-year capital improvements schedule without more (see the discussion below) does not meet the test for concurrency. Standing alone, this approach does not ensure that the facility will ever be built and certainly does not guarantee that it will be built within a reasonable period of time. Currently, the law provides that a local government may amend its capital improvements schedule, including the date of construction of any facility, by ordinance without even going through the plan amendment review process.
The Department does believe that the Growth Management Act contemplates and allows utilization of concurrency management systems which are based upon an adequate capital improvements schedule and adequate implementing regulations. It is not possible to describe every concurrency management system that would be deemed adequate. However, at a minimum, this approach would include the following:
Obviously, the local government in question must have adopted a local comprehensive plan which has been found in compliance with
Chapter 163 and Rule 9J-5.
The local plan must contain a capital improvements element and a five-year capital improvement schedule which, in addition to meeting all of the other statutory rule requirements, is financially feasible. It cannot simply be a wish list of facilities that the local government puts forward without any real hope or expectation of being able to fund or implement during the five-year capital improvements program.
The five-year capital improvements schedule must contain the necessary facilities, not
to eliminate existing deficiencies but als provide whatever facilities are needed to s the new development proposed to be permi
by the local government.
The local plan must contain a realistic, financially feasible funding system based on currently available revenue sources which is adequate to fund the facilities contained in the five-year capital improvements program.
The local government must have adopted local [sic] development regulations which, in conjunction with the capital improvements element, ensure that development
improvements [sic] are issued in a manner that will assure that within a reasonable period of time the necessary facilities and infrastructure will be in place to accommodate the impact of that development. The existing statutory provision which states that the concurrency requirement may be satisfied through the staging or phasing of development or facilities clearly indicates that the legislature did not intend that all infrastructure be in place to serve
an entire development at the time a development permit is issued. Obviously, conditional permits are contemplated and authorized by existing law.
The concurrency management system must include a monitoring system which enables
local governments to determine whether [they are]
adhering to [their] capital improvements schedule and to ascertain existing development capacity
at any given time.
The Department believes that any concurrency management system which incorporates these features is likely to be deemed by Florida courts to be in compliance with the concurrency requirement. I believe that case law in this state and other jurisdictions supports the proposition that local regulatory systems based on valid comprehensive plans which are supported by adequate data and information are likely to be upheld by the judiciary. Moreover, the Department believes that when all of the provisions of Chapter 163 and Rule 9J-5 are reviewed and construed together that this is a reasonable and permissible approach to the concurrency issue.
Certainly, it is an approach that would be approved by the Department of Community Affairs.
After addressing other questions, the Margolis letter concludes:
. . . The Department firmly believes that its approach to concurrency will effectively deal with Florida's infrastructure problems while avoiding the worst-case scenarios which some people are using to attack the requirement.
Until actual experience has demonstrated that this approach will not work, we urge the Legislature not to repeal or weaken the concurrency requirement which is the heart of the Growth Management Act.
The Pelham speech is similar to the Margolis letter. After requesting that the concurrency requirements be given a chance to work, the speech warns that the Department's advice is subject to court interpretations:
. . . the Department's position is not necessarily what a court somewhere down the road would decide. As a state administrative agency responsible for this program, we have the duty of interpreting the statute and we're going to do it. That does not mean that every court in this state down the road will necessarily agree with us. That's why we have been very cautious in working with local governments to always tell them that if you want to take the safest possible approach, then take the most conservative approach.
And if you want to be a local government that takes absolutely no risk whatsoever with regard to the concurrency requirement, then the safest thing for you to do as a local government is
to take the position that the requirement
means that you must have each and every facility in place at the time you adopt [sic] the development permit....
The Pelham speech lists the same four basic alternatives for attaining concurrency as are set forth in the Margolis letter. When the development order is issued, the required facilities must be in place, under construction, subject to a binding contract for construction, or included in the local government's budget.
Like the Margolis letter, the Pelham speech adds a fifth alternative, which is described as less certain and more susceptible to successful court challenge. The fifth alternative, which is the same as the fifth alternative in the Margolis letter, allows a "concurrency management system that is designed to ensure that the necessary facilities will be available within a reasonable period of time."
The Pelham speech cautions that concurrency cannot be achieved under the fifth alternative merely by listing the required public facility in the
five-year schedule of capital improvements. The speech reasons that listing the required public facility in the five-year schedule would be insufficient because local governments could change the five-year schedule without formally amending its plan.
The Pelham speech outlines the requirements for achieving concurrency under the fifth alternative. First, the plan must be in compliance. Second, the capital improvements schedule must be financially feasible. Third, the needed facilities must be in the five-year schedule of capital improvements. Fourth, financially feasible funding sources must be currently available. Fifth, the plan must adopt a comprehensive and financially feasible strategy to eliminate infrastructure deficits.
The Pelham speech justifies the fifth alternative by reference to one provision of the Act that contemplates the elimination of existing infrastructure deficiencies over a reasonable period of time. Section 163.3177(3)(a)1 requires the capital improvements element to outline principles for correcting existing public facility deficiencies.
Between the Margolis letter and Pelham speech in early 1988 and the adoption of the subject plan amendments two years later, DCA had revised its approach to concurrency, especially as to the adequacy of issuing development orders in reliance upon public facilities scheduled in a five-year schedule of capital improvements. The Spring, 1989, "Technical Memo," which is circulated widely among local governments and planners, discusses a proposed concurrency rule and the Margolis letter, which "became the Department's written policy for implementing the concurrency requirement."
The Spring, 1989, "Technical Memo" restates the four basic alternatives contained in the Margolis letter. 7/ Following the fourth alternative, which is that the "necessary facilities have been included in the local government's budget," the following statement appears: "(Editor's Note: The practical application of this condition has been reconsidered and was not included in the proposed [rule] amendments . . . to establish minimum criteria for the implementation of concurrency by local governments.)"
The Summer, 1989, "Technical Memo" reports recent revisions to the proposed concurrency rule following the Spring, 1989, "Technical Memo." These revisions, among other things, added more liberalized options by which to achieve concurrency for recreational facilities and roads.
Under the proposed rule described in the Summer, 1989, "Technical Memo," the four primary options to attain concurrency for any public facility would be: the necessary facilities are in place when the development order is issued; the development order is issued but conditioned on the requirement that the necessary facilities are in place when the impacts of development occur; the necessary facilities are under construction when the development permit is issued; or the necessary facilities are guaranteed by an enforceable development agreement.
The first three options proposed in the rule correspond to the first two alternatives in the Margolis letter and Pelham speech. The fourth proposed option, which is that the required facilities are guaranteed by an enforceable development agreement, does not require that the facilities so guaranteed be available when the impacts of development occur. The fourth option, although involving a binding contract, thus more closely resembles the fourth and fifth alternatives in the Margolis letter and Pelham speech.
As described in the Summer, 1989, "Technical Memo," the proposed rule would add two more options for attaining concurrency for recreational facilities and roads. These options more closely resemble the third alternative under the Margolis letter and Pelham speech, which involves facilities that are subject to a binding contract, although not yet available when the impacts of development take place.
The first such option under the proposed rule is to provide that the necessary facilities are the subject of a binding contract to start construction within one year from issuance of the development order. The other option is to provide that the necessary facilities are guaranteed in an enforceable development agreement requiring construction to start within one year from the issuance of the development order.
According to the Summer, 1989, "Technical Memo," the proposed rule would recognize a seventh option for attaining concurrency for roads only. This option corresponds to the fourth and fifth alternatives in the Margolis letter and Pelham speech--the inclusion of a required public facility in a budget and the inclusion of a public facility in a five-year
schedule. 8/ The proposed rule would impose nine requirements under this option for roads. The requirements refine and expand the requirements set forth in response to the third question of the Margolis letter. 9/
In its September, 1989, "Planning Notes" newsletter, which is circulated widely among local governments and planners, DCA announced that it would, as of September 1, 1989, apply Rule 9J-5.0055 "to all plans and plan amendments reviewed." DCA promulgated Rule 9J-5.0055, which, on its face, took effect November 22, 1990.
The perspective of potentially affected persons as to the effect of DCA's evolving policy on concurrency, at least with respect to the subject plan amendments, is best disclosed by the following testimony of Sewell Corkran:
I'd like to point out that [Collier County counsel] has been referring to letters or documents written by members of the Department of Community Affairs and has apparently referred to a state legislator or senator.
As an interested citizen, I have gone by the law [--] 163, 9J-5, the regional plan, the state plan [--] and I am not privy to what apparently he's considering as law or important to this hearing. I am not familiar with these letters and so forth and I've had to go by the law as I've been able to find it.
Transcript, page 42.
CONCLUSIONS OF LAW
Jurisdiction and Standing
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.57(1) and 163.3184(9)(a), Florida Statutes. (All references to Sections are to Florida Statutes.)
Collier County argues that the Division lacks subject matter jurisdiction. The argument is based on the language of Section 163.3184(9)(a), which confers jurisdiction
upon the Division to conduct a Section 120.57 hearing for plan challenges brought by affected persons. A different subsection authorizes the Division to conduct Section 120.57 hearings for plan challenges brought by DCA.
Section 163.3184(9) authorizes affected persons to file petitions when DCA has issued a notice of intent to find in compliance a plan transmitted pursuant to Section 163.3167 or 163.3191. Section 163.3191 involves plan amendments in conjunction with evaluation and appraisal reports and is irrelevant to this proceeding. Section 163.3167 involves plans that have been restated, revised, or amended in order to comply with the Act. The focus of Section 163.3167 is upon the initial plan adopted under the Act. The subject plan amendments do not fall within Section 163.3191 or 163.3167.
The gist of the County's argument is that Section 163.3184(9) omits any mention of plan amendments and, by so doing, precludes affected persons from challenging plan amendments except in the two circumstances described in the preceding paragraph. The County notes that, by contrast, Section 163.3184(10), which governs plan challenges brought by DCA, expressly mentions plans and plan amendments.
The scope of a plan amendment may be as extensive as the scope of the original plan. In theory, a local government could entirely amend its original plan immediately after adoption. It would make little sense to give affected persons the right to challenge the original plan, but not later plan amendments.
The difference in statutory language between Section 163.3184(9) and
does not reflect an intent to limit affected-person challenges to initial plans and evaluation and appraisal reports. Section 163.3187(2) provides in part that the "procedure for amendment of an adopted . . . plan shall be as for the original adoption of the . . . plan set forth in s. 163.3184." Regardless whether the affected person challenges a plan or plan amendment, the Section 163.3184(9) proceeding is an important aspect of public participation, which is an important feature of the Act. 10/
Contrary to Collier County's argument, Petitioners' right to challenge the subject plan amendments is unaffected by the settlement agreement between DCA and Collier County. Settlement plan amendments are entitled to no greater status under the Act than are other plan amendments.
Relying on laches, Collier County contends that Petitioners are barred from prosecuting their challenge to the subject plan amendments because their only remedy was to challenge the original plan. Section 163.3184(9) confers upon Petitioners the right to challenge the original plan or a plan amendment. The Act does not require an affected person to challenge the plan as a precondition to challenging an amendment to the plan. It makes no difference that the amendments result in an insubstantial change to a plan provision, as Collier County correctly contends with respect to CIE Policy 1.5.1.E. Nothing in the Act demands or permits an inquiry into the substantiality of a plan amendment to determine if DCA or an affected person may challenge the amendment.
Standing
Participation as a party in a Section 163.3184(9) or (10) proceeding is limited to "affected persons" and DCA. In relevant part, Section 163.3184(1)(a) provides:
"Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoining local governments that can demonstrate that adoption of the plan as proposed would produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction.
Each person, other than an adjoining local government, . . . shall also have submitted oral or written objections during the local government review and adoption proceedings.
Citizens and Kessler each satisfies the requirement of owning property, residing, or owning or operating a business in Collier County. The County challenges their status as "affected persons" based on a failure to submit oral or written objections during the local government review and adoption proceedings.
Collier County argues that Petitioners were required to submit their objections to CIE Policy 1.5.1.E and F when the plan was first under consideration. This argument is rejected for the reasons set forth in the preceding section.
Each letter contains objections and the earlier letter clearly was submitted to the County after the issuance of the ORC on the plan amendments and before the adoption of the plan amendments. Although the objections do not refer to CIE Policy 1.5.1.E and F, nothing in Section 163.3184(1)(a) limits the range of issues that affected persons may raise in a Section 163.3184(9) proceeding to the matters raised in their
objections. 11/
Standard of Proof and Meaning of "in Compliance"
In a Section 163.3184(9) proceeding, Petitioners must prove to the exclusion of fair debate that the plan amendment is not in compliance.
"In compliance" is "consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5 . . ., where such rule is not inconsistent with chapter 163, part II."
The Act does not define what is meant by consistency with the general criteria of the Act and Chapter 9J-5. The only definition of consistency covers state and regional plans, which are irrelevant to this case. 12/
One approach to determining consistency with the other criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "minimum criteria" 13/ language. Under this approach, the failure to satisfy any single requirement of Sections 163.3177 and 163.3178 or criterion of Chapter 9J-5 results in a finding of inconsistency.
Another approach to determining consistency with the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "consistency" language. Under this approach, the plan is first examined under the "minimum criteria" approach. If no criterion is left unsatisfied, then the plan is consistent with Sections 163.3177 and 163.3178 and Chapter 9J-5. If, as is often if not invariably the case, the plan fails to satisfy one or more of these criteria, further analysis must be undertaken before determining that the plan is not consistent with applicable statutory and regulatory criteria.
Borrowing the statutory definition of consistency as applied to comparisons with state and regional plans, the "consistency" approach would permit a finding of consistency if the plan as a whole were not in conflict with, and took action in the direction of, realizing the criteria unsatisfied by the plan. The "consistency approach" would require, among other things, consideration of the purposes of the unsatisfied criteria in light of the entire plan, the Act, and Chapter 9J-5.
The stricter "minimum criteria" approach is supported by several references in the Act and Chapter 9J-5 to these criteria as "minimum requirements" or "minimum criteria." See Sections 163.3161(7) and 163.3177(9) and Rule 9J-5.001, although Section 163.3177(9) also refers to "criteria" without the modifier, "minimum." Rule 9J-5.001 adds: "[a]s minimum criteria, these criteria are not intended to prohibit a local government from ... adopting
. . . a ... plan which is more . . . strict." The rule says nothing about adopting a plan less strict than the minimum criteria.
The more flexible "consistency" approach is supported by the language in the Act and Chapter 9J-5 that a plan must be "consistent with the requirements" of Sections 163.3177 and 163.3178 and Chapter 9J-5. Section 163.3184(1)(b). Similarly, Rule 9J-5.002(1) requires consistency merely with Sections 163.3177 and 163.3178 and Chapter 9J-5, and not with any "minimum criteria."
In one instance, the Act expressly endorses more flexibility than exists in the "minimum criteria" approach. The determination whether the plan is consistent with the criteria requiring certain detailed data must be based on such factors as the local government's "complexity, size, [and] growth rate." Rule 9J-5.002(1). Expressly approving this rule, Section 163.3177(10)(i) provides:
[DCA] shall take into account the factors delineated in rule 9J-5.002(2) . . . as it
. . . applies the rule in specific situations with regard to the detail of the data and analysis required.
If truly "minimum criteria," the requirements of the Act and Chapter 9J-5 should be "satisfied" or "met." But these words are generally not used in the Act or Chapter 9J-5 with reference to the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5. The lone exception is Rule 9J-5.0055, which uses the word "satisfy" four times and the word "met" three times, with respect to the concurrency requirement, which is the issue involved in the present case.
The language of the Act favors the "consistency" approach over the "minimum criteria" approach. The "consistency" approach derives its support from the critical provision of the Act defining "in compliance." By contrast, the "minimum criteria" approach derives its support from less operative sources within the Act--a legislative declaration 14/ and a legislative directive to DCA regarding rulemaking. 15/ The flexibility of the "consistency" approach is implicitly endorsed by Section 163.3177(10)(a), which expressly provides for similar flexibility in the determinations of consistency with the state and regional plans. 16/
Under the "consistency" approach to Sections 163.3177 and 163.3178 and Chapter 9J-5, each unsatisfied criterion must be carefully considered to determine its function in light of the Act and Chapter 9J-5 as a whole. Then the relationship between the plan as a whole and the unsatisfied criterion, in light of its role within the Act and Chapter 9J-5, must be examined to determine whether, among other things, the plan conflicts with the unsatisfied criterion, the plan takes action in the direction of realizing the unsatisfied criterion, and the plan is related to, coordinated with, and, ultimately, consistent with the unsatisfied criterion.
The strong language of Rule 9J-5.0055 is evidence that the concurrency requirement of the Act and Chapter 9J-5 plays a key role within the Act and Chapter 9J-5. The Act discloses that the concurrency requirement is, as described in the Margolis letter and Pelham speech, the "teeth of growth management" that "distinguishes growth management from mere planning."
Serious infrastructure deficits, to which the Margolis letter and Pelham speech refer, typically resulted when development preceded public facilities, such as roads, sewer, water, and drainage. Concurrency requires a matching of infrastructure availability with the infrastructure demands necessitated by development.
Consequently, the determination whether a plan provision is consistent with the concurrency requirement is vital. Even under the flexible "consistency approach," the Act demands a close reading of the concurrency requirement and a careful analysis of how a plan's concurrency provisions respond to this vital criterion. A slight inconsistency as to concurrency may have dramatic practical consequences when compared to more pronounced inconsistencies with respect to other criteria.
Concurrency Before Rule 9J-5.0055
The Act required concurrency prior to the promulgation of Chapter 9J- 5.0055. The Act originally addressed concurrency by the following provision:
The comprehensive plan shall contain a capital improvements element . . . [that] set[s] forth:
* * *
3. Standards to ensure the availability of public facilities and the adequacy of those facilities including acceptable levels of service.
Section 163.3177(3)(a)3.
Any doubt as to the concurrency requirement in the
Act 17/ was dispelled with the addition of Section 163.3177(10)(h):
It is the intent of the Legislature that public facilities and services needed to support development shall be available concurrent with the impacts of such development. In meeting this intent, public facility and service availability shall be deemed sufficient if the public facilities and services for a development are phased, or the development is phased, so that the public facilities and those related services which are deemed necessary by the local government to operate the facilities
necessitated by that development are available concurrent with the impacts of the development. The public facilities and services, unless already available, are to be consistent with the capital improvements element of the . . . plan . . . or guaranteed in an enforceable development agreement. . . .
In the first sentence of Section 163.3177(10)(h), the Legislature has unequivocally expressed its intent that "public facilities and services needed to support development shall be available concurrent with the impacts of such development." Section 163.3177(10)(h). The next sentence recognizes that development and infrastructure may be phased to achieve concurrency; even when
phasing is permitted, however, the second sentence restates the requirement that the required facilities must be available concurrent with the impacts of development.
The third sentence of Section 163.3177(10)(h) requires that the needed public facilities be those for which the local government has planned in its capital improvements element. This requirement ensures an orderly process for the construction of capital improvements. However, public facilities not included in the schedule of capital improvements may be used to achieve concurrency if they are guaranteed in an enforceable development agreement. Nothing in this provision suggests, though, that the required infrastructure to be provided pursuant to an enforceable development agreement is otherwise exempt from concurrency, such as by allowing such developer-provided infrastructure to be finished and made available after the impacts of development have been experienced.
Section 163.3177(10)(h) leaves little room for doubt concerning the requirement of concurrency. However, two other provisions of the Act may affect the interpretation of the concurrency requirement. Restating the concurrency requirement with respect to land development regulations, Section 163.3202(2)(g) allows a one-time six-month deferral of enforcement of concurrency in the issuance of development
orders. 18/ It is unclear to what extent Section 163.3202(2)(g), which governs land development regulations, could affect plan provisions. In any event, the availability of CIE Policy 1.5.1.E is not limited to six months following the adoption of the plan, so the policy finds no support from the six-month window created by Section 163.3202(2)(g) for the enforcement of land development regulations dealing with concurrency.
Section 163.3177(3)(a)1 contemplates the prospect of an ongoing effort to eliminate existing infrastructure deficits over a reasonable period of time. Section 163.3177(3)(a)1 requires the capital improvements element to contain a:
component which outlines principles for construction, extension, or increase in capacity of public facilities, as well as a component which outlines principles for correcting existing public facility deficiencies, which are necessary to implement the comprehensive plan. The components shall cover at least a 5-year period.
Section 163.3177(3)(a)1 establishes criteria for the capital improvements element and five-year schedule of capital improvements. As noted in the Pelham speech, Section 163.3177(3)(a)1 implies that local governments are not required, immediately upon the effective date of their plans, to eliminate all existing public facility deficiencies.
At first, the limitation of CIE Policy 1.5.1.E to the first five years after the plan was adopted suggests that the policy could be related to infrastructure deficits in existence at such time. However, nothing in CIE policy 1.5.1.E limits its application to such cases. CIE Policy 1.5.1.E is not restricted to public facilities already operating over-capacity when the plan was adopted. Even assuming that the County is eventually able to make available
all required public facilities, as required by CIE Policy 1.5.1.F, CIE Policy
1.5.1.E allows the impact of development to precede the availability of public facilities by a considerable period of time.
At most, Section 163.3177(3)(a)1 implies that the local government should have a reasonable time within which to eliminate those infrastructure deficits in existence when the plan is adopted. Section 163.3177(3)(a)1 does not authorize a local government to continue to issue development orders impacting already-deficient facilities, at least as to nonvested developments. Not limited to infrastructure deficits in existence when the plan was adopted, CIE Policy 1.5.1.E would authorize the issuance of development orders that rendered deficient public facilities that were not deficient when the plan was adopted. In its unqualified form, CIE Policy 1.5.1.E finds no support in Section 163.3177(3)(a)1. 19/
Therefore, the Act requires concurrency without qualification or condition except with respect to public facility deficiencies in existence, vested development, and possibly development permitted for the first six months following adoption of the plan. Development for which concurrency is so required shall be referred to as Covered Development.
Focusing on the requirements of Section 163.3177(10)(h), Collier County argues for weaker definitions of the statutory terms, "available" and "impacts of development." "Available" means "accessible for use; at hand; usable." American Heritage Dictionary. "Impact" means "the effect of one thing upon another." Id.
The other key terms in Section 163.3177(10)(h) likewise have common meanings. "Development" means, among other things, "the making of any material change in the use or appearance of any structure or land." Sections 163.3164(5) and 380.04(1). The word, "concurrent," means "happening at the same time or place." American Heritage Dictionary. The Act defines "public facilities" as:
major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational, and health systems and facilities. 20/
The terms employed in the concurrency requirement of Section 163.3177(10)(h) are clear and unambiguous. For Covered Development, the concurrency requirement demands that capital improvements for transportation, sanitary sewer, solid waste, drainage, potable water, and parks and recreation necessitated, based on locally adopted level of service standards, by material changes in the use of land be at hand and usable at the same time as the effect is experienced from such land use changes.
It is unnecessary to consider the extent to which the second and third alternatives in the Margolis letter and Pelham speech are consistent with the Act when applied to Covered Development. 21/ CIE Policy 1.5.1.E and F corresponds only to the fourth and fifth alternatives.
The fourth and fifth alternatives in the Margolis letter and Pelham speech allow development orders to be issued in reliance upon the inclusion of the necessary public facilities in the local government's budget or five year schedule of capital improvements. With respect to Covered Development, these alternatives do not satisfy the concurrency requirements of the Act.
It is axiomatic that:
Legislative intent is the polestar by which
we must be guided in interpreting ... statutory provisions. . . . The best evidence of the intent of the legislature is generally the plain meaning of the statute. [Citations omitted.]
In re Order on Prosecution of Criminal Appeals, 561 So. 2d 1130, 1137 (Fla. 1990).
In this case, the concurrency requirement of Section 163.3177(10)(h) is stated explicitly as legislative intent. The interpretation of the Act by DCA, which is the agency charged with the administration of the Act, is entitled to deference, although an agency may not ignore the "ordinary and commonly accepted meaning" of the words of a statute. See, e.g., Hancock Advertising, Inc. v. Department of Transportation, 549 So. 2d 1086, 1088 (Fla. 3d DCA 1989).
As explained above, the Act requires a matching of infrastructure supply and infrastructure demand necessitated by Covered Development. Under the clear language of Section 163.3177(10)(h), the issuance of development orders in reliance upon required public facilities that are merely included in a five-year schedule does not satisfy the requirement that the necessary facilities be available, usable, or at hand at the same time as the impacts of Covered Development are felt.
The Margolis letter and Pelham speech attempt to interpret concurrency so as to give meaning to other provisions of the Act. Similarly, the flexible "consistency approach" requires consideration of all criteria of the Act when considering whether a plan is consistent with any single criterion, even a criterion as vital as concurrency.
As an explicit expression of legislative intent, Section 163.3177(10)(h) must be read in conjunction with other provisions of the Act, especially those to which the expressed intent of Section 163.3177(10)(h) relates. Sections 163.3177(3)(a)1 and 3 and 163.3202(2)(g) have already been considered in this regard.
Concurrency is implicit in numerous other requirements of the Act, such as the economic feasibility of a plan, as required by Section 163.3177(2); the efficient use of public facilities, as required by Section 163.3177(3)(a); the correlation between the public facilities and future land use elements, as required by Section 163.3177(6)(c); the conservation, protection, and use of natural resources, as required by Section 163.3177(6)(d); effective intergovernmental coordination, as required by Section 163.3177(6)(h); the protection of coastal resources, as required by Sections 163.3177(6)(g) and 163.3178; and the discouragement of urban sprawl, as required by Rules 9J- 5.006(3)(b)7 and 9J-5.011(2)(b)3 and other provisions of law. A close reading of the concurrency requirement is therefore supported by such provisions, in addition to Sections 163.3177(3)(a)1 and (10)(h) and 163.3202(2)(g).
As noted in the Margolis letter and Pelham speech, concurrency can be a demanding requirement. A certain tension may exist between the concurrency requirement and other criteria of the Act recognizing that the fundamental responsibility for local planning rests with the local government. 22/ A
reasonable reading of the concurrency requirement is required to give meaning to these other criteria of the Act, as well as to comply with the rule of statutory construction "that language should not be interpreted literally when to do so would lead to an unreasonable or absurd result." Certain Lands v. City of Alachua, 518 So. 2d 386, 388 (Fla. 1st DCA 1987). Justifiably concerned with reasonableness, the Margolis letter acknowledges that flexibility is inherent in a planning statute, such as the Act; however, the letter warns that flexibility may not become synonymous with meaninglessness.
But a close reading of the critical concurrency requirement is not repugnant to the flexibility necessarily inherent in a planning Act, nor does such a reading lead to unreasonable or absurd results. Notwithstanding the concurrency requirement, which is indispensable to the Act, the local government retains considerable flexibility under the Act in adopting planning strategies to address concurrency-related issues. 23/
Regardless whether a local government achieves concurrency by appropriately adjusting level of service standards, employing alternative funding mechanisms, or implementing other innovative approaches, nothing in the Act demands or authorizes a categoric departure from concurrency, such as is represented by CIE Policy 1.5.1.E and F. Public facilities needed to support Covered Development must be available concurrent with the impacts of such development.
Collier County's reliance upon DCA's nonrule policy regarding concurrency is misplaced. Presumably, Collier County must explicate any nonrule policy upon which it relies, just as an agency would be required to do if it were relying on such policy. See, e.g., McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977). It is unnecessary to consider the extent to which CIE Policy 1.5.1.E and F satisfies the additional requirements set forth in the Margolis letter for the fifth alternative. Despite the deference duly accorded to an agency's interpretation of its statutes, the fourth and fifth alternatives are themselves inconsistent with the Act's concurrency requirement for the reasons set forth above. It is therefore irrelevant whether CIE Policy 1.5.1.E and F complies with the fourth and fifth alternatives. No explication of the nonrule policy of these alternatives can possibly account for their unqualified departure from the concurrency requirement of the Act.
Even if DCA's nonrule policy is unsupported by the Act, Collier County argues that mere compliance with nonrule policy is sufficient. However, compliance with the fourth and fifth alternatives in the Margolis letter and Pelham speech is insufficient for several reasons. First, nothing in McDonald and its progeny suggests that the requirement of explication can be avoided when a nonagency party invokes nonrule policy against another nonagency party.
In any event, DCA's pronouncements were intended to guide local governments as to the evolving position of DCA regarding concurrency. The pronouncements were repeatedly conditioned upon unpredictable outcomes of court cases. These warnings were sufficient to inform local governments that their actions would be evaluated in adjudicatory proceedings--whether judicial or administrative.
Moreover, these pronouncements clearly described a process under which DCA was actively considering various interpretations. In March, 1989, for instance, the SOI recommended that Collier County amend CIE Policy 1.5.1.E so as to ensure that even scheduled public facilities would be available concurrent
with the impacts of development, if development orders were issued in reliance upon such scheduled facilities. DCA's determination in Rule 9J-5.0055, nearly nine months later, that the mere scheduling of required public facilities did not satisfy concurrency (except in the case of roads) was thus not the first time that DCA had so interpreted the Act's concurrency requirement.
Inordinate deference to DCA's evolving nonrule policy so as to allow Collier County to use DCA's nonrule policy as a shield against a challenge from a nonagency party raises a distinct problem under the Act. The Act does not rely exclusively upon DCA for enforcement of the law. The Act confers upon affected persons the right to challenge the plans and plan amendments of their local governments even when DCA finds the plan or plan amendment in compliance. The effect of such private enforcement proceedings is to ensure compliance with the law even when a noncompliant provision escapes DCA's vigilance. When the Section 163.3184(9) proceeding is necessary to ensure compliance with the law, these private enforcement proceedings are the most important part of the public- participation process.
The County's estoppel-like arguments, which emphasize reliance upon DCA's nonrule policy without regard to its departure from the clear requirements of the Act, are no more persuasive when based upon the settlement agreement, rather than the Margolis letter and Pelham speech. In this contract between DCA and Collier County, DCA agreed that Collier County could attain compliance with the law by making certain changes to its plan. The County changed CIE Policy
1.5.1.E and F in accordance with the agreement.
The issue, of course, is not whether DCA, after obtaining the plan language to which it agreed, may challenge the plan amendments. The question is whether an affected person may challenge the plan amendments. In effect,
Collier County is in
no different position than is any local government that, after obtaining a favorable determination from DCA, finds itself confronted with an affected- person challenge under Section 163.3184(9). Favorable nonrule policy is available to a local government as a basis to defend its plan or plan amendment, but only to the extent that such policy finds support in the requirements of the Act.
Neither DCA's nonrule policy nor the settlement agreement can effectively insulate Collier County from an affected-person challenge based on a provision of the Act. Pursuant to Section 163.3184(1)(b), 24/ affected persons prevail if they prove to the exclusion of fair debate that the plan or plan amendment is inconsistent with ""ss. 163.3177, 163.3178, [or] 163.3191, the state comprehensive plan, the appropriate regional policy plan, [or] rule 9J-5, F.A.C., where such rule is not inconsistent with chapter 163, part II." No sustainable interpretation of Section 163.3184(1)(b) may allow an affected person to prove to the exclusion of fair debate an inconsistency between a plan provision and the Act, but fail to prevail because the plan provision is consistent with some policy pronouncement or settlement agreement.
Based on the foregoing, Petitioners have proved to the exclusion of fair debate that CIE Policy 1.5.1.E and F is inconsistent with the concurrency requirement of the Act.
Concurrency Under Rule 9J-5.0055
For all public facilities except roads and recreation, Rule 9J-5.0055 provides that concurrency may be attained if, when a development order is issued, the necessary facilities are in place, the permit is conditioned on the necessary facilities being in place when the impacts occur, the necessary facilities are under construction, or the necessary facilities are guaranteed in an enforceable development agreement that ensures that the necessary facilities are in place when the impacts occur. 25/ Except possibly for the option concerning construction, which may involve only a de minimis exception to concurrency, these options satisfy the concurrency requirements of the Act.
Under the rule, recreational facilities (and roads) are deemed timely provided if their construction, pursuant to a binding contract, will start within one year after the issuance of the development order, even though, presumably, the impact of development has earlier taken place. In the alternative, recreation facilities may be timely provided if guaranteed in an enforceable development agreement requiring actual construction to begin within one year after issuance of the development order, even though, again, the impact of development has earlier taken place. Although CIE Policy 1.5.1 addresses recreational facilities, it is unnecessary to consider whether the rule's special options for recreation satisfy the concurrency requirements of the Act or represent only de minimis exceptions. The challenged provision does not invoke either special option.
Similarly, the seventh option, which is reserved for road facilities, is irrelevant to this case because CIE Policy 1.5.1.E and F does not apply to roads.
Nothing prevents Petitioners from relying on the rule, as well as the Act. The rule was in effect no later than November 22, 1989. Collier County adopted the subject plan amendments on May 1, 1990. Obviously, CIE Policy
and F does not meet the requirements of Rule 9J-5.0055 or even, as to recreational facilities, which are covered by the policy, the two additional options allowed under the rule.
Based on the foregoing, Petitioners have proved to the exclusion of fair debate that CIE Policy 1.5.1.E and F is inconsistent with Rule 9J-5.0055.
Based on the foregoing, it is hereby recommended that the Department of Community Affairs submit the recommended order to the Administration Commission for entry of a final order determining that CIE Policy 1.5.1.E and F is not in compliance with the Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
RECOMMENDED this 13th day of April, 1992, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1992.
ENDNOTES
1/ Mr. Corkran appeared at the hearing on his own behalf in connection with other cases that, as indicated below, were consolidated for hearing with the above-styled case.
2/ Footnote 3 of Collier County's Proposed Recommended Order incorrectly limits the scope of the challenge to Policy 1.5.1.E. The parties understood otherwise during the hearing. For instance, counsel for Collier County stated during the hearing:
With regard to the Growth Management Plan, as I stated earlier, I believe their challenge, Bob Apgar has indicated today, is limited to
1.5.1.E and F and we have no quarrel with that. They are claiming it's 1.5.1 E and F and that's what was in their original pleadings and they haven't amended their pleadings and that's fine.
Tr., p. 243.
3/ With the old language stricken through and the new language underlined, CIE Policy 1.5.1 provides:
Beginning with the effective date of Plan Implementation through September 30, 1994, the concurrency requirement for the Potable Water, Sanitary Sewer, Drainage, Solid Waste
and Recreation and Open Space Level of Service Standards, of this Growth Management Plan would be met if any of the following conditions of
an established Concurrency Management System are met:
The required facilities are in place at the time a building permit is issued, or a building permit is issued subject to the condition that the necessary facilities will be in place when the impact of the development occurs.
The required facilities are under construction at the time a building issued.
The required facilities are the subject of a binding contract executed for the construction of those facilities at the time a building permit is issued.
The construction of required facilities has been included in the County's adopted budget at the time a building permit is issued even though the facilities are not yet the subject of a binding contract for their construction.
*(The construction of the required facilities is scheduled in the County's Schedule of Capital Improvements prior to October 1, 1994.) **(The construction of facilities required to accommodate the impact of development occurring before October 1, 1994 is scheduled in the County's Schedule of Capital Improvements prior to October 1, 1994.) The Schedule of Capital Improvements shall be based on a realistic, financially feasible program of funding from existing revenue sources and shall be adopted
as a part of this Growth Management Plan.
A plan amendment is required to eliminate, defer or delay construction of any Category A facility in the Schedule of Capital Improvements which is needed to maintain the adopted level
of service standard. Any development order issued pursuant to a concurrency finding under this section is expressly conditional so that the permit shall be suspended and no further development shall be carried out in the event any of the following occur without a corresponding plan amendment:
The required facilities are **(delayed, deferred, or) removed from the adopted Schedule of Capital Improvements.
Annual funding is insufficient to maintain the Schedule of Capital Improvements.
Construction of the required facilities
is not undertaken in accordance with the adopted Schedule of Capital Improvements.
*(In any event the capacity required to accommodate the unit of demand required to meet the Sanitary Sewer and Potable Water level of service standards shall be available at time of issuance of the certificate of) occupancy. **(The construction of required facilities scheduled in the County's Schedule
of Capital Improvements prior to October 1, 1994 will not be delayed, deferred or removed from
the Capital Improvement Element if the facilities have been relied upon for issuance of a development order.)
*(material between these parentheses is the old language stricken through)
**(material between these parentheses is the new language underlined)
4/ CIE Policies 1.5.3 and 1.5.4 deal with roads. Petitioners did not challenge these policies.
5/ CIE Policy 1.5.1 is itself applicable only for the first five years of the plan. Then, CIE Policy 1.5.2 becomes effective. Except for an insignificant addition to CIE Policy 1.5.1.A, however, CIE Policy 1.5.2 merely restates all of the provisions of CIE Policy 1.5.1 except 1.5.1.E and F.
6/ With two exceptions, the Third Amended Petition raises the same issues, regarding CIE Policy 1.5.1.E and F, that are identified in the Prehearing Stipulation, which is set forth in the Preliminary Statement. The Third Amended Petition also alleges that CIE Policy 1.5.1.E and F is inconsistent with Rule
9J-5.005(6), which requires a local government to implement its plan consistent with 163.3201, and Rule 9J-5.016(2), which requires the CIE to be based upon an analysis of existing deficiencies and future needs, mitigation of existing deficiencies, and the use of capital improvements to support efficient land development. These issues have been deemed abandoned due to their omission from the Prehearing Stipulation.
7/ See p. 15 above.
8/ The difference between a local government's "budget" and its five-year schedule, as used in the Margolis letter and Pelham speech, never emerges from these materials. Possibly, the difference was that the budget was the schedule of capital improvements and matching revenues for the current fiscal year and the five-year schedule was the same document extended over five years. CIE Policies 1.5.1.D and 1.5.2.D allow concurrency to be attained based upon the inclusion of a required facility in the "County's adopted budget."
9/ See Findings of Fact Paragraphs 23 and 24. 10/ See, e.g., 163.3181.
11/ Cf. 163.3184(8)(a). This provision operates similarly to the standing provision, which requires the submittal of timely objections, but does not restrict the issues that an affected person may raise to the contents of the objection. 163.3184(8)(a) provides that, in the absence of the introduction of new plan provisions after the issuance of the ORC, the content of the ORC limits the range of issues upon which DCA may rely in issuing its notice of intent to determine that the plan is not in compliance. However, 163.3184(8)(a) does not limit the range of issues that DCA may assert once it has issued a notice of intent meeting the requirements of 163.3184(8)(a). Like DCA under 163.3184(8)(a), an affected person, after timely submitting an objection, may challenge any aspect of a plan or plan amendment without regard to the scope of his objection.
12/ 163.3177(10)(a) provides:
a local plan shall be consistent with [the state and regional] plans if the local plan
is "compatible with" and "furthers" such plans.
The term "compatible with" means that the
local plan is not in conflict with the state . . . plan or . . . regional . . . plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For purposes of determining consistency of the local plan with the state . . . plan or . .. regional . . . plan, the state or regional plan shall be construed as a whole and
no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans.
13/ The Act refers to "requirements," and Chapter 9J-5 refers to "criteria." As used in the Act and Chapter 9J-5, the two words are synonymous. For simplicity, all references in this Recommended Order to "criteria" or "minimum criteria" include "requirements" or "minimum requirements," as used in the Act.
14/ 163.3161(7).
15/ 163.3171(9).
16/ See Footnote 12 above.
17/ Other provisions at least implying the existence of the concurrency requirement prior to the adoption of 163.3177(10)(h) include 163.3202(2)(g), which is discussed in Footnote 18, and various other provisions identified in Conclusion of Law Paragraph 48.
18/ 163.3202(2)(g) requires that, within one year from the transmittal of the plan, each local government adopt land development regulations that, among other things, provide for public facilities meeting the adopted level of service standards. The facilities must be "available when needed for the development, or . . . development orders and permits [must be] conditioned on the availability of these public facilities and services necessary to serve the proposed development." Not later than one year after the transmittal due date, the local government "shall not issue a development order or permit which results in a reduction in the level of services for the affected public facilities below the [adopted] level of services [standard]."
The process of DCA and interagency review of proposed plans and local government review of the resulting ORC typically means that a plan is adopted about 5-6 months after the transmittal due date. A requirement imposed one year after the transmittal due date would therefore become effective about six months after the adoption of the plan.
19/ A more difficult question is avoided by the failure to limit CIE Policy
to development orders for development that would impact public facilities already operating over- capacity or below their adopted level of service standards when the plan was adopted.
There are two approaches to interpreting 163.3177(3)(a)1 so as to allow local governments a reasonable time to eliminate pre-existing infrastructure
deficiencies. The first approach would be to stop the issuance of development orders, except for vested development, but allow the local government time to eliminate the infrastructure deficits before determining that its plan is not in compliance.
The second approach would be to allow the local government time to eliminate the pre-existing infrastructure deficiencies and allow the local government to continue to issue new development orders not limited to vested development. The only condition would be that the additional capacity resulting from the new public facilities would, say, within five years be sufficient to attain the adopted level of service standard even after absorbing the impacts of new development.
The two approaches can be illustrated by considering a road segment under local jurisdiction that is operating below its adopted level of service standard when a plan is adopted. Under the first approach, new development orders for nonvested development impacting the deficient road segment would be prohibited until the road segment attained the adopted level of service standard. Under the second approach, new development orders for nonvested development impacting the deficient road segment would be permitted as long as the scheduled capital improvements were sufficient to restore the road segment to its adopted level of service standard by absorbing the impacts of development in existence when the plan was adopted and the impacts of development resulting from development orders issued after the plan was adopted.
Although unnecessary to the recommended order, Petitioners' Proposed Finding of Fact Paragraph 28 suggests that the second approach may not have been available to Collier County.
20/ The public facilities for which concurrency is required have typically been limited to transportation, sanitary sewer, solid waste, drainage, potable water, and parks and recreational. This case does not raise the issue of concurrency as to other major capital improvements, such as educational and health- related facilities, for which the Act does not require separate elements.
21/ The first alternative in the Margolis letter and Pelham speech clearly satisfies the concurrency requirement.
22/ See, e.g., 163.3161(3), 163.3167(1), and 163.3177(10)(b) and (f).
23/ The determination whether a particular planning strategy is in compliance with the Act and Chapter 9J-5 depends upon a variety of circumstances, including the contents of the entire plan and applicable data and analysis. However, a local government may consider several approaches to managing concurrency-related problems, which, depending on the local government's situation, may or may not be available.
Flexible planning strategies adopted to accommodate new development may include the use of tiered or staged level of service standards. In the case of locally maintained roads or parks, the local government may be able to adopt a less rigorous level of service standard for, say, the first five years, followed by a more rigorous standard thereafter. To discourage urban sprawl, a local government may adopt a more congested level of service standard for roads in close-in areas to encourage in- fill development and preserve existing neighborhoods from disruptive road projects.
Flexibility may also be attained by more efficiently using the capacity of other public facilities for which concurrency is required. Existing road capacities may be effectively extended by such means as improved traffic management systems and programs to encourage mass transit. Water, sewer, and solid waste facilities may reasonably be expected to benefit from new or expanded recycling programs, especially if such programs were only recently
introduced. New data and analysis may support replacing fairly demanding level of service standards for water, sewer, and solid waste with less rigorous standards based on experience with more extensive recycling programs for each of these services.
Apart from adjusting level of service standards, the local government may be able to adjust the funding side of the equation. Aside from a carefully constructed impact-fee program, a local government may be able to reduce its capital expenditures for the construction of public facilities by requiring or allowing the use of planned developments, municipal service taxing units, community development districts, or other similar devices to focus more narrowly the cost of construction and operation of public facilities upon the users. If a public facility is to be provided that is not included in the five-year schedule of capital improvements and, for some reason, the local government does not wish to amend the schedule, then the only additional requirement of Section 163.3177(10)(h) is that the cost be guaranteed by an enforceable development agreement.
Without undermining concurrency, concurrency-related problems may be reduced or eliminated by other means. Following careful review of its data and analysis and plan provisions, a local government may be able legitimately to broaden its vesting provisions, reduce areas deemed impacted by development in terms of roads and parks, and use transferrable development rights to shift development from impacted areas without adequate public facilities to suitable areas.
It is unnecessary to consider whether the options available to a local government with respect to concurrency include the second approach described in footnote 18.
It is also unnecessary to consider whether, after implementing more benign options, such as those mentioned above, other provisions in the Act may justify qualifications to concurrency. Under appropriate circumstances, to avoid an expensive taking, a local government might be able to issue a development order, with substantially reduced intensity and density than otherwise allowed by the plan, for limited development that would impact deficient public facilities.
Other goals of the Act, such as the availability of affordable housing and protection of irreplaceable natural and historic resources, might also justify qualifications to concurrency under the right circumstances. For instance, to provide affordable housing, a local government might be able to issue a development order in reliance upon roads and parks contained in a five year schedule. As is implicit from the additional options allowed for these public facilities by Rule 9J-5.0055, roads and parks are typically less closely related to public health, safety, or welfare than the other public facilities for which concurrency is required.
24/ The final clause of 163.3184(1)(b), whose apparent purpose is to preclude a plan challenge based on a rule that is inconsistent with a provision of the Act, is inapplicable in this case. Petitioners have challenged CIE Policy 1.5.1.E and F based on the Act. In so doing, they are not compelled to prosecute a rule challenge to rules or nonrule policies that may be contrary to the Act. In any event, the final clause of 163.3184(1)(b) reinforces the primacy of the Act over the rules and, surely, nonrule policies and settlement agreements.
25/ Rule 9J-5.0055 provides in relevant part:
To ensure that facilities and services needed to support development are available concurrent with the impacts of such development, a local government must adopt a concurrency management system. Prior to the issuance of a development
order and development permit, the concurrency management system must ensure that the adopted level of service standards required for roads, potable water, sanitary sewer, solid waste, drainage, parks and recreation and mass transit, if applicable, will be maintained.
* * *
MINIMUM REQUIREMENTS FOR CONCURRENCY. A concurrency management system must be developed and adopted to ensure that public facilities and services needed to support
development are available concurrent with the impacts of such developments.
For potable water, sewer, solid waste, and drainage, at a minimum, provisions in a comprehensive plan that ensure that the following standards will be met will satisfy the concurrency requirement:
The necessary facilities and services are in place at the time a development permit is issued; or
A development permit is issued subject to the condition that the necessary facilities and services will be in place when the impacts of the development occur; or
The necessary facilities are under construction at the time a permit is issued; or
The necessary facilities and services are guaranteed in an enforceable development agreement that includes the provisions of Rules 9J-5.0055(2)(a)1.-3. of this Chapter. An enforceable development agreement may include, but is not limited to, development agreements pursuant to section 163.3220, Florida Statutes, or an agreement or development order issued pursuant to Chapter 380, Florida Statutes. The agreement must guarantee that the necessary facilities and services will be in place when the impacts of the development occur.
For parks and recreation, a local government may satisfy the concurrency requirement by complying with the standards
in Rules 9J-5.0055(2)(a) 1.-4. of this Chapter or by including in the comprehensive plan provisions that ensure that the following standards will be met:
At the time the development permit is issued, the necessary facilities and services are the subject of a binding executed contract which provides for the commencement of the actual construction of the required facilities or the provision of services within one year
of the issuance of the development permit; or
The necessary facilities and services are guaranteed in an enforceable development agreement which requires the commencement of
the actual construction of the facilities or the provision of services within one year of the issuance of the applicable development permit. An enforceable development agreement may include, but is not limited to, development
agreements pursuant to Section 163.3220, Florida Statutes, or an agreement or development order issued pursuant to Chapter 380, Florida Statutes.
For roads and mass transit designated in the adopted plan, a local government may satisfy the concurrency requirement by complying with the standards in Rules 9J-5.0055(2)(a)1.-4. and (2)(b)1. and 2., of this Chapter. In addition, in areas in which the local government has committed to provide the necessary public facilities and services in accordance with its five-year schedule of capital improvements, a local government may satisfy the concurrency requirement for roads and mass transit by the adoption and implementation of a concurrency management system based upon an adequate capital improvements program and schedule and adequate implementing regulations which, at a minimum, include the following provisions:
A capital improvements element and a five-year schedule of capital improvements
which, in addition to meeting all of the other statutory and rule requirements, must be financially feasible. The capital improvements element and schedule of capital improvements may recognize and include transportation projects included in the first three years of the applicable, adopted Florida Department of Transportation five-year work program.
A five-year schedule of capital improvements which must include both necessary facilities
to maintain the adopted level of service standards to serve the new development proposed to be permitted and the necessary facilities required to eliminate those portions of existing deficiencies which are a priority to be eliminated during the five-year period under the local government plan's schedule of capital improvements pursuant to Rule 9J-5.016(4)(a)1. of this Chapter.
A realistic, financially feasible funding system based on currently available revenue sources which must be adequate to fund the public facilities required to serve the development authorized by the development order and development permit and which public facilities are included in the five-year schedule of capital improvements.
A five-year schedule of capital improvements which must include the estimated date of commencement of actual construction and the estimated date of project completion.
A five-year schedule of capital improvements which must demonstrate that the actual construction of the road or mass transit facilities and the provision of services are scheduled to commence
in or before the third year of the five-year schedule of capital improvements.
A provision that a plan amendment would be required to eliminate, defer or delay construction of any road or mass transit facility or service which is needed to maintain the adopted level
of service standard and which is listed in the five-year schedule of improvements.
A requirement that the local government must adopt local development regulations which, in conjunction with the capital improvements element, ensure that development orders and permits are issued in a manner that will assure that the necessary public facilities and services will be available to accommodate the impact of that development.
A provision that a monitoring system shall be adopted which enables the local government to determine whether it is adhering to the adopted level of service standards and its schedule of capital improvements and that the local government has a demonstrated capability of monitoring the availability of public facilities and services.
A clear designation within the adopted comprehensive plan of those areas within which facilities and services will be provided by the local government with public funds in accordance with the five-year capital improvements schedule.
In determining the availability of services or facilities, a developer may propose and a local government may approve developments in stages or phases so that facilities and services needed for each phase will be available in accordance with the standards required by Rules 9J-5.0055(2)(a), (2)(b) and (2)(c) of this Chapter.
For the requirements of Rules 9J-5.0055(2)(a), (2)(b) and (2)(c) of this Chapter, the local government must develop guidelines for interpreting and applying level of service standards to applications for development
orders and permits and determining when the test for concurrency must be met. The latest point in the application process for the determination of concurrency is prior to the approval of an application for a development
order or permit which contains a specific plan for development, including the densities and intensities of development.
Specific Authority 163.3177(9), (10), F.S.
Law Implemented 163.3177(3), (6), (8), (9), (10), F.S.
History-New 11-22-89.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4545GM
Treatment Accorded Proposed Findings of Petitioners 1-17: adopted or adopted in substance.
18: adopted in substance, although the deleted material in Rule 9J-
5.0055(2)(a)4 is critical because it requires concurrency for public facilities guaranteed by development agreements.
19: adopted.
20 (first sentence): rejected as unsupported by the appropriate weight of the evidence and, given the issues, irrelevant.
20 (remainder): adopted.
21-26: rejected as conclusions of law. 27: adopted in substance.
28: rejected as unnecessary. 29: adopted.
30: rejected as repetitious. 31: adopted.
Treatment Accorded Proposed Findings of Collier County 1-5: adopted.
6-10: rejected as irrelevant.
11: adopted except that distinction between entities is rejected as unsupported by appropriate weight of the evidence.
12 and 14-16: rejected as irrelevant.
13: rejected as unsupported by the appropriate weight of the evidence. 17-26: adopted.
27: rejected as unsupported by the appropriate weight of the evidence.
The nonrule policies expressed DCA's interpretation of the Act. DCA's interpretation of the Act was not "based on the nonrule policies," which necessarily are subordinate to the Act as a source of authority for compliance determinations.
28: adopted.
29: adopted except that the implication that such rules are consistent with the Act is rejected as irrelevant and possibly unsupported by the appropriate weight of the evidence.
30: rejected as irrelevant. 31: adopted.
32-33: rejected as irrelevant.
34: adopted except that the implication that the meaning of the concurrency requirement itself changed after the enactment of 163.3177(10)(h) is rejected as unsupported by the appropriate weight of the evidence.
35: adopted.
36: rejected as irrelevant.
37: rejected because nonrule policy is "established" only by one means-- adjudication. Moreover, Rule 9J-5.0055, although still required to be consistent with the Act, necessarily overrode any contrary nonrule policy by no later a point in time that would control the subject plan amendments.
38-40: adopted.
41: rejected as irrelevant.
42 and 46: adopted.
43-45 and 47-52: rejected as irrelevant and unnecessary.
53: adopted as to effective date of Rule 9J-5.0055, but rejected as to remainder as irrelevant.
54-55, 57-61: rejected as unsupported by the appropriate weight of the evidence and the law.
56: rejected as irrelevant.
Treatment Accorded Proposed Findings of DCA 1: duly noted.
2-7: adopted or adopted in substance.
COPIES FURNISHED:
A. Randall Kelley, Assistant Secretary Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100
G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Stephanie M. Callahan, Assistant General Counsel Michael Donaldson, Assistant General Counsel Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100
Marjorie M. Student, Assistant County Attorney Collier County Courthouse
3301 E. Tamiami Trail Building F, Eighth Floor Naples, FL 33962
Robert C. Apgar Paul H. Amundsen
Haben & Culpepper, P.A.
306 North Monroe Street Tallahassee, FL 32301
William W. Merrill III Icard, Merrill, et al. Postal Drawer 4195
Sarasota, FL 34230
Sewell H. Corkran
213 Ninth Avenue South Naples, FL 33940
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order.
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
THE CITIZEN'S POLITICAL COMMITTEE, INC. and JAMES K. KESSLER,
Petitioners,
vs. DOAH CASE NO. 90-4545GM
COLLIER COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS,
Respondents.
/
FINAL ORDER
On April 13, 1992, a Hearing Officer of the Division of Administrative Hearings entered his Recommended Order in this proceeding. The parties agreed to an extension of time for the Department to enter this order, and an additional extension was granted in order to allow an opportunity for oral arguments to be presented. Oral arguments were heard on July 13, 1992.
BACKGROUND
SUMMARY OF PROCEEDINGS
This is a proceeding in which Petitioners, The Citizen's Political Action Committee and James K. Kessler, challenged provisions of the comprehensive plan adopted by the Collier County ("County"). The plan was originally adopted by the County in March, 1989, in accordance with the Local Government Comprehensive
Planning and Land Development Regulation Act, Ch. 163, Part 11, Florida Statutes ("Act"). The Department issued its Notice of Intent to find the plan not in compliance with the Act. The proceeding was forwarded to the Division of Administrative Hearings ("DOAH"). Thereafter the County and the Department entered into a Stipulated Settlement AgreemenT. The County and the Department agreed that if the County amended its plan in accordance with an exhibit that was attached to the Agreement, the Department would find the plan in compliance with the Act. The County amended its plan precisely in accordance with the AgreemenT. Among other things, the plan amendments included Policies 1.5.1.E and
of the Capital Improvements Element ("CIE"). The Department determined the plan amendments in compliance with the Act and moved to dismiss the proceeding at DOAH. Ultimately, DOAH and the Administration Commission dismissed the proceeding.
Petitioners filed their petition in accordance with Section 163.3184 (9), Florida Statutes. They challenged the determination of compliance of the plan amendments and alleged that CIE Policies 1.5.1.E and 1.5.1.F are not in compliance for reasons that are summarized on page 4 of the Recommended Order. The Department forwarded the petition to the Division of Administrative Hearings. A Hearing Officer was assigned, and the final bearing was conducted on July 22-26, 1991.
The Hearing Officer entered a Recommended Order which includes detailed findings of fact and conclusions of law. He determined that CIE Policies
and 1.5.1.F of the plan are not in compliance with the Act, and recommended that the Department determine the referenced plan provisions not in compliance and submit the Recommended Order to the Administration Commission for entry of a final order.
The County filed exceptions to the Recommended Order.
ROLE OF THE DEPARTMENT OF COMMUNITY AFFAIRS
The Department is responsible for reviewing comprehensive plans and plan amendments that are adopted by local governments and determining whether plans and plan amendments comply with the AcT. Section 163.3184 (8), Florida Statutes. When the Department determines that a plan or plan amendment is in compliance with the Act, "affected persons" can file petitions requesting that the issue of compliance be addressed in formal administrative proceedings in accordance with the Administrative Procedure AcT. Section 163.3184 (9) (a), Florida Statutes.
If the Hearing Officer recommends that the plan be determined not in compliance, the Department is required to enter a final order if it determines that the plan is in compliance with the Act, or a determination that the plan is not in compliance. In the latter case, the Department is required to submit the Recommended Order to the Administration Commission for final action. Section 163.3184 (9) (b), Florida Statutes.
The Department has reviewed the Hearing Officer's Recommended Order, the exceptions, and the record of this proceeding. The Department has concluded that the County's plan amendments should be found in compliance with the Act.
RULINGS ON EXCEPTIONS
County Exception 1
The County contends that Petitioners' challenge to the County's plan amendments is precluded under doctrines of collateral estoppel or res judicata. The argument is based upon the fact that Petitioners were not parties to the original plan review proceeding. The Administration Commission dismissed that proceeding because issues between the parties had been resolved. The Department and the County were the only parties.
The first opportunity that Petitioners had to challenge the plan amendments that are now part of the County's plan was after the amendments were adopted.
The sole means for challenging provisions of a local plan or plan amendment is a proceeding under Section 163.3184. Section 163.3184 (13), Florida Statutes. The County's exception, if accepted, would preclude the challenge to plan amendments because Petitioners were not parties to the original plan review proceeding, even though the amendments could not have been challenged prior to adoption The County's exception would effectively preclude any citizen from ever challenging any plan amendment that is adopted as a part of a settlement agreement with the DepartmenT. Nothing in Chapter 163, Florida Statutes, limits a citizen's opportunity to challenge plan amendments in this fashion.
The County's interpretation would frustrate the rights of citizens to participate in the local government comprehensive planning process. This participation, including the right to invoke formal hearing requirements, is a fundamental aspect of Florida's growth management laws. Poke v. City of Cocoa Beach, 12 FALR 4758 (Department of Community Affairs, 1990); Bensen v. City of Miami Beach, 12 FALR 4577 (Department of Community Affairs, 1990); Falk v. City of Miami Beach, 12 FALR 4548 (Department of Community Affairs, 1990).
The County's first exception is rejected.
County Exception 2
The County contends that the Hearing Officer's findings and conclusions related to concurrency requirements of the Act are not supported by competent substantial evidence, or are contrary to law. The Department has rejected some of the findings of fact and conclusions of law set out in the Recommended Order.
At the time that the Department reviewed the County's plan as originally adopted, the Department's policies regarding concurrency provisions were embodied in two statements referred to as the "Margolis letter" and the "Pelham speech." These statements are described in detail at Paragraphs 19-32, pages 12- 21 of the Recommended Order. These were "incipient" or evolving policies.
Florida League of Cities v. Administration Commission, 586 So. 2d 397, 406 (Fla. 1st DCA 1991). At the time that the Department reviewed the Collier County plan it had very little experience addressing concurrency management systems in local comprehensive plans. The Department tested its policies through case-by-case adjudications, and eventually crystallized the policies through adoption of Rule 9J-5.0055, Florida Administrative Code. The appropriate forum for reviewing
non- rule policies regarding local government comprehensive planning issues is the administrative hearing relating to whether a local plan or plan amendment is in compliance with state law. Home Builders and Contractors Association of Brevard County. Inc. v. Department of Community Affairs, 585 So. 2d 965, 970
(Fla. 1st DCA 1991). Petitioners did not challenge the Department's policies in their petition, and the issue was not stated by the Hearing Officer as one of the issues to be resolved in the proceeding.
To the extent that the issue of propriety of the Department's policies is an issue that should be addressed when it is not raised, the policies should be determined within the range of permissible interpretations of state law. The Department is the State agency charged with responsibility for implementing Florida's growth management laws. Sec. 163.3164 (19), Florida Statutes. The Department's interpretation of statutes that it is charged with implementing should be given great weighT. Department of Environmental Regulation v.
Goldring, 477 So. 2d 532 (Fla. 1985); Department of Business Regulation v. Martin County Liquors, 574 So. 2d 170 (Fla. 1st DCA 1991); Amisub (North Ridge General Hospital Inc.) v. Department of Health and Rehabilitative Services, 577 So. 2d 648 (Fla. 1st DCA 1985). The Department's determination that its developing policies met the requirements of the Act for concurrency management systems is entitled to deference. The Hearing Officer should not have rejected the Department's interpretation of the Act.
The County's second exception is granted insofar as the findings of fact and conclusions of law set out herein reject findings and conclusions set out in the Recommended Order. The exception is otherwise rejected.
County Exception 3
The County contends that while the Hearing Officer paid "lip service" to the "fairly debatable" standard of review specified in Section 163.3184 (9), Florida Statutes, he actually applied some other standard. The Hearing Officer made findings and conclusions regarding the meaning of the term "concurrency". While some of these findings and conclusions have been rejected in this final order, that does not mean that the Hearing Officer invoked an erroneous standard in evaluating the plan.
The County's third exception is rejected.
County Exception 4
The County contends that the Division of Administrative Hearings lacks jurisdiction with regard to this proceeding. The County contends that plan amendments are not subject to challenge by affected persons if the Department determines the amendment to be in compliance with the AcT. The contention is not supported by the AcT. The Act clearly provides that the procedures for amending a comprehensive plan are the same as procedures for adopting the plan. Section 163.3187 (2), Florida Statutes. Procedures for adopting a plan expressly contemplate challenges to a determination by the Department that the plan is in compliance by citizens with the requisite interesT. Section 163.3184 (9), Florida Statutes. The Act does not limit procedures for adopting a plan amendment so as to preclude such a challenge. Such a challenge was the precise issue raised in Poke v. City of Cocoa Beach, supra.
The County's fourth exception is rejected.
County Exceptions 5, 6, and 8-10
The County offers several novel theories that would thwart the ability of citizens such as Petitioners to participate in proceedings relating to whether a local government comprehensive plan is in compliance with the AcT. The County
contends that Petitioner Kessler's objections did not meet technical requirements (Exception 5); that the issues are barred by laches since Petitioners did not challenge the County's originally adopted comprehensive plan (Exception 6); that the evidence does not establish the residence of one of the parties (Exception 8); that the Hearing Officer's findings regarding objections submitted by Petitioners during review and adoption proceedings conducted by the County are not supported by the record (Exception 9); and that Petitioners' objections were not adequate to put the County on notice as to the issues Petitioners have raised in this proceeding (Exception 10).
The point of the Act is not to frustrate the ability of citizens to participate in the process. Quite the contrary, the intention is to enhance public participation to the fullest extent possible. Section 163.3181, Florida Statutes. This intention is reflected in provisions that establish standing requirements to challenge local plans that contemplate easy access to the proceedings. Section 163.3184 (1) (a), Florida Statutes.
The County's fifth, sixth, eighth, ninth and tenth exceptions are rejected.
County Exception 7
The County contends that one of the policies found not in compliance, CIE Policy 1.5.1.F is not properly at issue in this proceeding because no evidence was offered with regard to it. While the Hearing Officer's conclusions regarding compliance of this policy with the Act have been rejected in this order, this exception is not well taken. The policy was in evidence. If as a matter of law the policy is not in compliance with the Act, no other evidence is necessary.
Furthermore, much of the evidence offered by Petitioners relates to Policy
to the same extent as it relates to Policy 1.5.1.E. The County's seventh exception is rejected.
County Exception 11
The County contends that the Hearing Officer's finding set out in Paragraph
14 at page 11 of the Recommended Order that the County's plan does not specify when concurrency determinations are to be made is not supported by competent substantial evidence. Provisions of the plan other than those cited at Paragraph 14 do include clear expressions that concurrency determinations are to be bade prior to the issuance of building permits. The Hearing Officer's finding is therefore erroneous.
County Exception 11 is granted as set forth in substitute findings of fact below.
County Exception 12
The County contends that the Hearing Officer applied an erroneous interpretation of the requirements for "consistency." Certain of the Hearing Officer's findings and conclusions have been rejected in this Order. The nature of his analysis, however, does correctly follow provisions of the Act.
County Exception 12 is rejected.
County Exception 13.
The County objects to words such as "inexplicably", and "significant" in the Recommended Order. It also objects to basing any findings on testimony of a witness whose challenge was directed to County land development regulations rather than provisions of the plan. There is nothing in the Act, or in the Administrative Procedure Act, Chapter 120, Florida Statutes, which prohibits use of words which emphasize or highlight a poinT. There is nothing in the record of this case that reflects that the testimony of Mr. Corkran was limited to the land development regulation challenge.
The County's thirteenth exception is rejected.
FINDINGS OF FACT
Findings of Fact 1-7; 8, except the third sentence; 9-13; 14, except the second sentence; and 15-41; set out in the Hearing Officer's Recommended Order are hereby adopted, and are incorporated herein by reference.
The finding set out in the third sentence of Finding 8, in the Hearing Officer's Recommended Order is hereby rejected as not supported by competent substantial evidence. There is no competent substantial evidence in the record that supports the Hearing Officer's finding that the Department's departure from the language of the its Statement of Intent ("SOI") was "inexplicable". The departure was consistent with policies the Department had been following as discussed elsewhere in the Recommended Order. The following finding is substituted for the third sentence in Paragraph 8:
A. The Department's departure from the recommended language for CIE Policy 1.5.1.E set forth in the SOI was consistent with its policies as enunciated in the Margolis letter and the Pelham speech. The revised language in the Settlement Agreement for CIE Policy 1.5.1.E and 1.5.1.F is exactly what Collier County adopted in its plan amendments.
The finding set out in the second sentence of Finding 14 in the Hearing Officer's Recommended Order is hereby rejected as not supported by competent substantial evidence. The finding ignores other provisions of the County's comprehensive plan which clearly provide that determinations regarding the availability of public facilities will be made prior to the time that development orders or building permits are issued.
The statement in Finding of Fact 41 in the Hearing Officer's Recommended Order does portray the frustration that a citizen :might experience when agency policies are not reduced to rule. There is nothing in the record of this proceeding, however, that suggests that the Department was responding in other than a responsible manner to complex issues regarding implementation of a statute where the implications of a policy decision ay not be readily apparent.
CONCLUSIONS OF LAW
The Hearing Officer's Conclusions of Law 1-29; 34; 35, except the final sentence; 38; 39, except the third sentence, which states a definition for "concurrency"; 41; 47; 49; 58; and 61-63 are hereby adopted and are incorporated herein by reference.
The Hearing Officer's Conclusions of Law set out in Conclusions 30-33; the final sentence of 35; 36; 37; the third sentence of 39; 40; 42-46; 48; 50- 57; 59; 60; 64; and 65 are hereby rejected. The following conclusions of law are substituted for the rejected conclusions:
The Department's Rule 9J-5.0055 became effective on November 22, 1990. Since then, comprehensive plans or plan amendments adopted by local governments must be consistent with the Rule in order to be in compliance with the AcT. Section 163.3184 (1) (b), Florida Statutes. Prior to the adoption of Rule 9J-5.0055, however, concurrency management systems were measured against the non-rule, developing policies enunciated in the Margolis letter and the Pelham speech.
The Settlement Agreement was negotiated following the Department's determination that the County's plan was not in compliance with the AcT. The Agreement was signed by the County and by the Department during September, 1989. Clearly, provisions of the County's plan regarding its concurrency management system that are now in effect because they were adopted as plan amendments in accordance with the Settlement Agreement do not meet the requirements of Rule
9J-5.0055. At the time that the County adopted its plan, and at the time that it entered into the Settlement Agreement with the Department, however, the rule was not in effecT. At the time that the County adopted the plan amendments that established Policies 1.5.1.E and 1.5.1.F, it had every reason to believe that the policies would be acceptable to the DepartmenT. The plan amendments were consistent with policies the Department had been following. Furthermore, they were the precise provisions the County and the Department had agreed upon in the Settlement Agreement. Under these circumstances, it is manifestly unfair to hold the County to the requirements of Rule 9J-5.0055.
While the commonly understood definition of the word "concurrent" contemplates "happening at the same time," (American Heritage Dictionary), the statutory system for ensuring that public facilities needed to accommodate development will be available concurrent with the impacts of the development is not this simple. The requirements for concurrency must be considered in light of other planning goals set out in the Act and the State Comprehensive Plan. Near-sighted adherence to an interpretation that concurrency can only be met if public facilities are in place and operating at the time that development impacts occur would lead to inconsistencies with other requirements of the Act. For example, requiring that roads be completed and that recreation facilities be operational before new development is occupied could lead to inconsistencies with other requirements of the Act such as goals for ensuring that housing is provided for existing and future residents of the local governmenT. Section 163.3177 (6) (f), Florida Statutes.
It is not surprising that valid planning goals, such as the requirement for concurrency and the goal for ensuring adequate housing, sometimes conflicT. Resolving such conflicts is an important function of a growth management process. Flexibility is needed in approaching these issues, including concurrency issues. This is not to says that concurrency can be ignored. What is required is that public facilities be available sufficiently close to the time when impacts of the development occur to ensure that levels of service for the facilities do not drop below standards that have been set by the local government for an inordinate period.
Rule 9J-5.0055 sets different standards for meeting concurrency requirements for different facilities. For potable water, sewer, solid waste, and drainage, very little deviation from assurance that the facility is in place at the time that the development is completed or before then is tolerated. Given the clear public health implications of failure to have these systems in place, very little deviation should be permitted. For parks and recreation facilities, more deviation is permitted. Provision of facilities and services required to meet level of service standards for parks and recreation is required in a manner to ensure commencement of construction of the facility within one year of the issuance of the applicable development permiT. For roads and mass transit facilities, there is even more tolerance. Inclusion of the facility in the local government's five-year schedule of capital improvements is acceptable so long as the capital improvements program and schedule meet the detailed requirements specified at Paragraphs 9J-5.0055 (c) 1-9.
The criteria in Rule 9J-5.0055 significantly tighten concurrency requirements. Concurrency management systems that would have been deemed acceptable under the policies expressed in the Margolis letter and Pelham speech may not meet requirements of the Rule. The Rule criteria constitute a more aggressive implementation of concurrency requirements. The Rule recognizes the inherent importance of immediate need for some facilities such as potable water and waste water treatment systems, and the inability of local government to provide other facilities such as parks and roads immediately.
Criteria in the Rule are an improvement over criteria followed in the earlier policies. This does not mean, however, that the earlier policies constituted an improper application of concurrency requirements expressed in the AcT. While no longer the yardstick, these policies were not inconsistent with the AcT. By allowing concurrency requirements to be met by including needed public facilities in the five-year capital improvements element, the earlier policies did contemplate that some facilities would not be on line at the time that development is completed. The delay, however, is not so inordinate as to render the criteria invalid. A five-year delay is only a hypothetical
possibility. Issuance of a development permit itself does not mean that development has impacts on public facilities. There will be some delay, in some cases even a number of years, before impacts occur based upon issuance of a permit. Furthermore, a five-year capital improvements element that meets the criteria of the Margolis letter and Pelham speech does not contemplate that all of the needed public facilities would not be available until the end of the five- year period. Instead, the facilities would be developed in accordance with a realistic schedule.
while some delay is contemplated in the earlier policies, and in some cases no delay would be a Preferable public policy, the delay is not so inordinate that the policies constitute an invalid implementation of provisions of the Act. This is especially so with local governments such as Collier County that had significant infrastructure backlogs when their comprehensive plans were adopted. Strict adherence to a concept that facilities must be available before or at the precise time that impacts are felt would have the effect of stopping all new development. It is preferable to develop a system that addresses the infrastructure backlog over a reasonable period of time, allows some new development to occur, and meets the infrastructure needs generated by the new development in a well-planned manner.
The Department's earlier policies and the criteria set in Rule 9J-5.0055 were both designed to accomplish these goals. The rule is an improvemenT. Improvements in agency policies are exactly what is contemplated by a system that allows for development of policies on a case-by-case basis prior to initiation of formal rule adoption processes.
ORDER
Based upon the foregoing findings of fact and conclusions of law, the Department hereby determines that Collier County's comprehensive plan amendments which include CIE Policies 1.5.1.E and 1.5.1.F are in compliance with the Act.
Entered this 20th day of August, 1992, in Tallahassee, Florida.
Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
FILING AND ACKNOWLEDGMENT
FILED, on this date, with the designated Department Clerk, receipt of which
is hereby acknowledged
08/20/92
Jane R. Bass Date Department Clerk
================================================================= DISTRICT COURT ORDER DISMISSING APPEAL
=================================================================
DISTRICT COURT OF APPEAL, FIRST DISTRICT
Tallahassee, Florida 32301
Telephone No. (904)488-6152
March 9, 1994
CASE NO. 92-3191
L.T. CASE NO. 90-4545-GM
Citizen's Political v. Collier County and Committee, Inc. and Department of Community
James K. Kessler Affairs
Appellant(s), Appellee(s).
BY ORDER OF THE COURT:
The issues presented in this appeal are now moot. Accordingly this appeal is dismissed.
I HEREBY CERTIFY that the foregoing is (a true and correct copy of) the original court order.
JON S. WHEELER, CLERK
By: Deputy Clerk
Copies:
Robert C. Apgar David A. Theriaque Robert E. Meale
William W. Merrill, III Majorie Student Stephanie M. Callahan Sewell H. Corkran Thomas G. Pelham
Jane C. Hayman Jane Bass
| Issue Date | Proceedings |
|---|---|
| Apr. 21, 1993 | Appellee/Cross-Appellant, Collier County's Notice of filing additional copy of answer brief and brief in support of cross appeal filed. |
| Mar. 31, 1993 | Notice of Commission Meeting filed. |
| Mar. 29, 1993 | 1st DCA Order (ruling on Motion for Extension of Time, granted) filed. |
| Feb. 19, 1993 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Feb. 16, 1993 | BY ORDER OF THE COURT(Motion for extension of time to answer brief granted) filed. |
| Nov. 17, 1992 | BY ORDER OF THE COURT filed. (Extension of time granted for record index filing) |
| Sep. 28, 1992 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Sep. 16, 1992 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Aug. 31, 1992 | CC Letter to Lawton Chiles from Sewell H. Corkran (re: Final Order) filed. |
| Aug. 24, 1992 | Final Order filed. |
| Jul. 14, 1992 | (Petitioners) Motion for Substitution of Counsel; Citizen's PoliticalCommittee, Inc.'s and James K. Kesler's Request for Rescheduling of Oral Argument filed. |
| Jul. 06, 1992 | Letter to Deanna Hartford from Aileen A. Zuker (re: Obtaining copy of RO) w/check in the amount of $15.52 to cover the costs) filed. |
| Jul. 06, 1992 | (Respondent) Response to Petitioners' Request to Reschedule filed. |
| Jun. 29, 1992 | Request for Rescheduling of Oral Argument filed. |
| Jun. 19, 1992 | Order Granting Extension of Time and Notice Scheduling Oral Argument filed. |
| May 04, 1992 | (DCA) Collier County's Exceptions TO DOAH Recommended Order No. 90-4545GM (impacing case No. 91-994GM) filed. |
| Apr. 13, 1992 | Case No. 90-4545GM : unconsolidated. |
| Apr. 13, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held July 22-26, 1991. |
| Jan. 13, 1992 | (Respondent Proposed) Recommended Order w/(unsigned) Recommendation filed. |
| Jan. 13, 1992 | (unsigned Proposed) Recommended Order filed. (From William W. Merrill, III) |
| Jan. 10, 1992 | (Petitioner/Co-Respondent) Notice of Filing Exhibits w/Exhibits filed. |
| Jan. 10, 1992 | Proposed Recommended Order of The Department of Community Affairs filed. (From Stephanie M. Callahan) |
| Jan. 10, 1992 | Proposed Recommended Order of Petitioners, Citizen's Politica Committee, Inc. and James K. Kessler filed. |
| Dec. 18, 1991 | Order Granting Motion to Extend Deadline for Filing of Proposed Recommended Orders sent out. |
| Dec. 18, 1991 | (DCA) Motion to Extend Deadline For Filing of Proposed Recommended Orders filed. (From Stephanie M. Callahan) |
| Dec. 16, 1991 | Corrected TR cover pages to vol IV, V, VI and VII filed. |
| Dec. 11, 1991 | Transcript (Vols 1-7) filed. |
| Dec. 10, 1991 | Letter to REM from Robert C. Apgar (re: transmittal of Original Transcript) filed. |
| Dec. 04, 1991 | Letter to Marjorie M. Student et al from Robert C. Apgar (re: filing PRO) filed. |
| Nov. 07, 1991 | Letter to REM from Sewell H. Corkran (re: Transcript) filed. |
| Oct. 30, 1991 | Letter to REM from Robert C. Apgar (re: Transcript) filed. |
| Aug. 13, 1991 | CC Letter to Marjorie Student; Wm W. Merrill, III; Robert Apgar & Sewell Corkran from Michael P. Donaldson (re: reducing to writing agreement reached by parties to when the PRO is to be filed) filed. |
| Jul. 24, 1991 | Joint Prehearing Stipulation filed. |
| Jul. 23, 1991 | Citizen's Political Committe, Inc. and James K. Kessler's Motion to File Second Amended Petition For Formal Administrative Hearing filed. (From Robert Apgar) |
| Jul. 22, 1991 | Final Hearing Held 7/22-26/91; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| Jul. 22, 1991 | Citizen's Political Committe, Inc. and James K. Kessler's Statement of the Issues Regarding the Collier County Adequate Public Facilities Ordinance filed. (From Robert C. Apgar) |
| Jul. 19, 1991 | Notice of Taking Deposition filed. (From Marjorie M. Student) |
| Jul. 18, 1991 | Notice of Filing Deposition filed.Robert C. Apgar) |
| Jul. 18, 1991 | Deposition of Jeffory Lynn Perry ; Deposition of William Stanley Litsinger, Jr. ; Deposition of Steven Allen Tindale filed. |
| Jul. 12, 1991 | Respondent Collier County's Motion to Extend Time For Taking Deposition w/(2) Cover ltr filed. (From Marjorie M. Student) |
| Jul. 11, 1991 | Amended Notice of Hearing sent out. (hearing set for July 22-26, 1991; Naples; Noon) |
| Jul. 11, 1991 | Respondent Collier County's First Set of Interrogatories to Petitioner filed. (from Sewell H. Corkran) |
| Jul. 03, 1991 | (Citizen's Political Committee & J. Kessler) Amended Notice of TakingDeposition filed. |
| Jun. 25, 1991 | Amended Notice of Taking Deposition filed. (From Robert C. Apgar) |
| Jun. 20, 1991 | Notice of Taking Deposition filed. (From Wililam W.Merrill, III) |
| Jun. 20, 1991 | Notice of Service of Interrogatories; Respondent Collier County's Second Set of Interrogatories to Petitioners filed. (From William W. Merrill, III) |
| Jun. 20, 1991 | Petitioner Corkran's Motion to Deny Continuance by Collier County & attachment filed. (From Sewell H. Corkran) |
| Jun. 19, 1991 | Order sent out. (petitioner's motion for continuance DENIED) |
| Jun. 19, 1991 | Respondent Collier County's First Request for Production of Documentsto Petitioner; Notice of Service of Interrogatories; Respondent Collier County's First Set of Interrogatories to Petitioner filed. (From William Mirrill, III) |
| Jun. 18, 1991 | Petitioners/Intervenors Citizens Political Committee, Inc and James K. Kessler's Memorandum in Opposition to Motion for Continuance filed. |
| Jun. 17, 1991 | Department of Community Affairs' Response to Motion for Continuance filed. (From David Russ) |
| Jun. 14, 1991 | Respondent Collier County's Motion for Continuance of Hearing filed. (From Marjorie M. Student) |
| Jun. 10, 1991 | (Petitioners) Notice of Taking Deposition (3) filed. (From Robert C. Apgar) |
| Jun. 05, 1991 | Petitioner's Response Collier County's Answers and Affirmative Defenses/Amended Petition March 28, 1991 & attachments filed. (From Sewell H. Corkran) |
| May 22, 1991 | Respondent Collier County's Answer and Affirmative Defenses to Amended Petition Filed by Sewell H. Corkran & cover ltr filed. |
| May 01, 1991 | Order Denying Motions in Opposition to Corkran Amended Petition sent out. |
| Apr. 26, 1991 | Intrervenors' Response in Opposition to Collier County's Motion in Opposition/Motion to Strike Paragraph 21 of Sewell Corkran's Amended Petition filed. |
| Apr. 26, 1991 | Intervenors' Response in Opposition to Collier County's Motion in Opposition/Motion to Dismiss/Strike All References to Policy 1.5.3.F. In The Amended Petition of Sewell H. Corkran filed. |
| Apr. 25, 1991 | Petitioner's Response to County's Motion in Opposition/Motion to Dismiss/Strike Corkran's Amended Petition Count III; Petitioner's Responseto County's Motion to Strike Paragraph 21 of the Amended Petition filed. |
| Apr. 18, 1991 | Respondent Collier County's Motion in Opposition/Motion to Dismiss/ Strike Amended Petition of Sewell H. Corkran; Respondent Collier County's Motion in Opposition/Motion to Strike Portions of Sewell Corkran's Amended Petition filed. (from Majorie M. Stude |
| Apr. 15, 1991 | Agreement w/(TAGGED) Exhibits A-C + (2) ltr from Marjorie M. Student & cover ltr filed. (From Marjorie M. Student) |
| Apr. 12, 1991 | Order Consolidating Cases and Resetting Hearing for DOAH Case No. 90-4545GM and Portion of DOAH Case No. 90-8101GM sent out. (90-4545GM, 90-8101GM, 91-0858GM & 91-0994GM are consolidated; hearing set for July 22-26, 1991). |
| Apr. 12, 1991 | Order Granting Petition to Intervene and Denying Motion to Dismiss sent out. |
| Mar. 28, 1991 | Notice of Withdrawal of Petition for Leave to Intervene filed. |
| Mar. 27, 1991 | Citizen's Political Committee and James K. Kessler's Reply to CollierCounty's Second, Fifth and Seventh Affirmative Defenses to the Third Amended Petition filed. |
| Mar. 27, 1991 | Petitioners' Response to Collier County's First Requests For Admission filed. (from Robert C. Apgar) |
| Mar. 27, 1991 | Supplement Memorandum of Law in Opposition to Petition to Intervene filed. (from Paul Amundsen) |
| Mar. 26, 1991 | Respondent Collier County's Amended Notice of Serving Answers to First Set of Interrogatories Propounded by Petitioner filed. (From Marjorie M. Student) |
| Mar. 21, 1991 | Petitioners Motion in Opposition to Petition to Intervene of Antaramian Development Corporation and McAlphine (Briarwood), Inc. filed. |
| Mar. 20, 1991 | Amended Witness List of Petitioners, The Citizens Political Committee, Inc. and James K. Kessler filed. |
| Mar. 20, 1991 | Respondent Collier Countys Answer and Affirmative Defenses to Third Amended Petition of Citizens Political Committee and James K. Kessler filed. |
| Mar. 19, 1991 | Petitioners Notice of Service of Anwers to Respondent Collier CountysFirst Set of Interrogatories to Petitioners filed. |
| Mar. 18, 1991 | Petition for Leave to Intervene (for Antaramian Development Corporation) filed. |
| Mar. 14, 1991 | Order Grfanting Motion in Opposition to Corkran Petition and Denying Motion in Opposition to DCA Petition sent out. |
| Mar. 14, 1991 | Order on Motion For Protective Order and Denying Motion For Continuance sent out. |
| Mar. 12, 1991 | Petitioners Notice of Production of List of Documents Protected from Discovery as Work-Product or Attorney-Client Privilege filed. |
| Mar. 11, 1991 | (Respondent) Notice of Compliance with Petitioners Request for Production of Documents filed. |
| Mar. 06, 1991 | Witness List of Respondent Collier County filed. |
| Mar. 05, 1991 | Respondent Collier Countys Notice of Serving Answers to First Set of Interrogatories Propounded by Petitioners; And Cover letter from M. Student filed. |
| Mar. 04, 1991 | Witness list of Petitioners, The Citizen's Political Committee, Inc. and James K. Kessler filed. |
| Mar. 01, 1991 | cc: Respondent Collier Countys Motion for Continuance of Hearing; Preliminary Exhibit List of Petitioners, The Citizens Political Committee, Inc. and James K. Kessler; Petitioners Motion for Protective Order to Limit Scope of Collier Countys Discovery rec |
| Mar. 01, 1991 | Petitioners Compliance With Order on Motions in Opposition; Amended Petition for Formal Administrative Hearing (Exhibit A-C) filed. |
| Mar. 01, 1991 | (Petitioners) Notice of Compliance with Respondent Collier Countys First Request for Production of Documents filed. |
| Feb. 28, 1991 | (Petitioners) Notice of Taking Deposition filed. |
| Feb. 27, 1991 | Respondent Collier County's lst Request for Admission filed. |
| Feb. 26, 1991 | (Petitioners) Notice of Partial Compliance With Respondent Collier Countys First Request for Production of Documents filed. |
| Feb. 26, 1991 | (Petitioners) Notice of Filing Third Amended Petition; Third Amended Petition of The Citizens Political Committee, Inc., and James K. Kessler Challenging Determination of Compliance filed. |
| Feb. 22, 1991 | Notice of Hearing sent out. (hearing set for 7/22-26/91; at 9:00am; in Naples) |
| Feb. 22, 1991 | Order on Motions in Opposition (motions DENIED) sent out. |
| Feb. 21, 1991 | Order on Motion to Strike sent out. |
| Feb. 21, 1991 | (Collier County) Preliminary Witness List filed. |
| Feb. 21, 1991 | Petitioners' Response to Respondent Collier County's Motion in Opposition/Motion to Strike and Petitioners' Motion for Leave to Further Amend Petition filed. |
| Feb. 20, 1991 | (Respondent) Preliminary Witness List filed. |
| Feb. 19, 1991 | (Respondent) Notice of Service of Interrogatories; Respondent CollierCountys First Set of Interrogatories to Petitioners filed. |
| Feb. 19, 1991 | Respondent Collier Countys First Request for Production of Documents to Petitioners filed. |
| Feb. 19, 1991 | (Respondent) Notice of Appearance of Counsel filed. (From W. Merrill) |
| Feb. 18, 1991 | Preliminary Witness List of Petitioners, The Citizens Political Committee, Inc. and James K. Kessler filed. |
| Feb. 13, 1991 | cc: Letter to M. Student from R. Apgar (Re: Motion to Consolidate; Second Amended Complaint) filed. |
| Feb. 12, 1991 | (Petitioners) Notice of Service of Interrogatories filed. (From Robert C. Apgar) |
| Feb. 12, 1991 | (petitioner) Amended Certificate of Service filed. |
| Feb. 12, 1991 | (Petitioners) Notice of Service of Interrogatories filed. (From Robert C. Apgar) |
| Feb. 11, 1991 | Respondent Collier County's Motion in Opposition/Motion to Strike Petitioners' Second Amended Petition As Modified by Petitioners' Motion For Leave to Amend w/exhibit-A filed. (From Marjorie M. Student) |
| Feb. 11, 1991 | Respondent Collier County's Answer and Affirmative Defenses to SecondAmended Petition As Amended of the Citizen's Political Committee and James K. Kessler w/exhibits A&B filed. (From Marjorie M. Student) |
| Feb. 08, 1991 | Order Bifurcating Issues for Hearing in DOAH Case No. 90-8101GM sent out. |
| Feb. 07, 1991 | Letter to REM from Robert C. Apgar (re: Being omitted from service list on Amended Notice of Hearing) & Notice of Appearance filed. (From Robert C. Apgar) |
| Feb. 07, 1991 | Letter to Robert C. Apgar from Marjorie M. Studen (re: Motion For Leave to Amend Second Amended Complaint) filed. |
| Feb. 05, 1991 | Petitioners' Response in Opposition to Collier County's Motion in Opposition/Motion For More Definite Statement; Petitioners' Response in Opposition to Collier County's Motion in Opposition/Motion to Strike filed. (From Robert C. Apgar) |
| Feb. 04, 1991 | Amended Notice of Hearing sent out. (hearing set for April 1-5, 1991:9:00 am: Naples) |
| Feb. 01, 1991 | (Petitioners) Request for Production of Documents filed. (From RobertC. Apgar) |
| Jan. 29, 1991 | Order Granting Leave to File Third Amended Petition and ConsolidatingCases sent out. |
| Jan. 29, 1991 | Order Correcting Earlier Order of Consolidation sent out. Consolidated cases are: 90-4545GM & 90-8101GM. |
| Jan. 29, 1991 | Respondent' Collier County's Motion in Opposition to Petitioenrs' Motion to Consolidate filed. |
| Jan. 25, 1991 | Petitioners' Motion For Leave to Amend Second Amended Complaint filed. (from Robert C. Apgar) |
| Jan. 17, 1991 | (Petitioners) Motion to Consolidate w/Case No. 90-8101GM filed. (FromRobert C. Apgar) |
| Jan. 14, 1991 | Petitioners', The Citizen's Political Committee, Inc. and James K. Kessler, Request For Extension of Time Within Which to Respond to Collier County's Motion in Opposition/Motion to Dismiss, Motion in Opposition/Motion For More Deinite Statement, and Motio |
| Jan. 02, 1991 | Respondent Collier County's Motion in Opposition/Motion to Strike in Response to Citizen's Political Committee, Inc. and James K. Kessler'sSecond Amended Petition; Certificate of Service filed. |
| Jan. 02, 1991 | Respondent Collier County's Motion in Opposition/Motion for More Definite Statement in Response to Citizen's Political Committee, Inc. and James K. Kessler's Second Amended Petition filed. |
| Jan. 02, 1991 | Respondent Collier County's Motion in Opposition/Motion to Dismiss Second Amended Petition of the Citizen's Political Committee, Inc and James K. Kessler; & cover letter from M. Student filed. |
| Dec. 24, 1990 | (petitioners) Notice of Pendency of Related Case (+ att) filed. |
| Dec. 20, 1990 | Respondent Collier County's Motion in Opposition/Motion to Strike Third Amended Petition of Sewell Corkran and November 30 Additions Thereto; Respondent Collier County's Motion in Opposition/Motion to Strike Third Amended Petition of Sewell Corkran and No |
| Dec. 07, 1990 | Second Amended Petition of the Citizens' Political Committe, Inc., and James K. Kessler Challenging Determination of Compliance filed. (From R. C. Apgar) |
| Dec. 07, 1990 | Notice of Filing Second Amended Complaint by Citizen's Plitica; Committee, Inc. and James K. Kessler filed. (From R. C. Apgar) |
| Dec. 03, 1990 | November 30, 1990 Additions to Amended Petition filed. (From S. H. Corkran) |
| Nov. 30, 1990 | Petitioners' The Citizen's Political Committee, Inc.and James K. KEssler, Motion For Extension of Time Within Which to File A Second Amended Compliant Challenging Determination of Complinace filed. (From R. C.Apgar) |
| Nov. 29, 1990 | Amended Petition-Plan CIE Policies 1/5/3/D. And E-Response on Standing filed. (from S. H. Corkran) |
| Nov. 14, 1990 | Order on Collier County's Motions in Opposition to Amended Petitions and Kessler and Citizen's Requests for Attorneys Fees |
| Nov. 09, 1990 | Notice of Withdrawal of Counsel for Citizen's Political Committee, Inc & cover letter from N. Stroud filed. |
| Nov. 05, 1990 | Collier County's Response in Opposition to Citizen's Political Committee and James K. Kessler's Request For Attorney Fees filed. (from Marjorie M. Student) |
| Oct. 26, 1990 | Petitioners James K. Kessler and Citizen's Political Committee's Response to Collier County's Motion in Opposition/Motion For More DefiniteStatement (from David N. Tolces) filed. |
| Oct. 26, 1990 | Petitioners', The Citizen's Political Committee and James K. Kessler,Memorandum in Opposition to Intervenor/Respondent Collier County's Motion in Opposition/Motion to Dismiss and Request For Attorney's Fees filed. (From David N. T olces) |
| Oct. 25, 1990 | Petitioner's Response to Intervenor Respodnent Collier County's Motion in Opposition/Motion to Strike in Response to First and Second Amended Petitions of Sewell Corkran filed. (from Sewell Corkran) |
| Oct. 25, 1990 | Petitioner's Response Intervenor Respondent Collier County's Motion in Opposition/Motion For More Definite Statement in Response to First And Second Amended Petitions of Sewell Corkran filed. (from Sewell Corkran) |
| Oct. 25, 1990 | Petitioner's Responses Intervenor/Respondent Collier County's Motion in Opposition/Motion; Petitioner's Response Intervenor/Respondent Collier County's Motion in Opposition/Motion to Dismiss in Response to Sewell Corkran's First and Second Amended Petitio |
| Oct. 22, 1990 | (Petitioners) Motion of Petitioners, The Citizen's Political Committee, INc. and James K. Kessler, For Extension of Time Within Which to File a Response to Collier County's Motion inOpposition/Motion For More Definite Statement filed. (from Robert C. Apga |
| Oct. 19, 1990 | Motion of Petitioners, The Citizens's Political Committee, Inc. and James K. Kessler For Extension of Time Within Which to File A Response to Collier County's Motion in Opposition/Motion to Dismiss filed. (From Robert C. Apgar) |
| Oct. 16, 1990 | (Petitioners) Notice of Appearance filed. (From Robert C. Apgar) |
| Oct. 11, 1990 | Intervenor Respondent Collier County's Motion in Opposition/Motion For More Definite Statement in Response to Citizen's Political Committee, ET AL., Amended Petition; Intervenor/Respondent Collier County's Motion in Opposition/Motion to Dismiss in Respons |
| Oct. 08, 1990 | Intervenor Respondent Collier County's Motion in Opposition/Motion toStrike in Response to First And Second Amended Petitions of Sewell Corkran; Intervenor/Respondent Collier County's Motion in Opposition/Motion to Dismiss in Resp onse to Sewell Corkran's |
| Oct. 08, 1990 | Intervenor/Respondent Collier County's Motion in Opposition as to Form of first And Asecond Amended Petitions of Sewell Corkran; IntervenorRespondent Collier County's Motion in Opposition/Motion For More Definite Statement in Resp onse to First and Second |
| Oct. 01, 1990 | (Petitioner) Amended Petition Challenging Determination of ComplianceCorrecting Improper Form of 9/17/90 filed. (From Sewel Corkman) |
| Sep. 24, 1990 | Amended Petition Challenging Determination of Compliance filed. (FromNancy E. Stroud) |
| Sep. 17, 1990 | Order Denying Respondent's Motion for Reconsideration of Denial of Motion in Opposition/Motion to Dismiss sent out. |
| Sep. 10, 1990 | Collier County's Motion for Reconsideration of Denial of Motion in Opposition/Motion to Dismiss; & cover letter from M. Student filed. |
| Sep. 07, 1990 | Collier County's Motion For Reconsideration of Denial of Motion in Opposition/Motion to Dismiss filed. (From Marjorie M. Student) |
| Aug. 28, 1990 | Order on Respondent's Motions to Strike, Dismiss, and for More Definite Statement sent out. |
| Aug. 28, 1990 | Petitioner's Citizen's Political Committee, Inc. and James K. Kessler, Response to Collier County's Motion In Oppositio/Motion to Strike filed. (From Nancy E. Stroud) |
| Aug. 28, 1990 | Petitioners', Citizen's Political Committee, Inc. andJames K. Kessler, Response to Collier County's Motion In Opposition/Motion For More Definite Statement filed. (From Nancy E. Stroud) |
| Aug. 28, 1990 | The Citizen's Political Committee, Inc., And James K. Kessler's Memorandum In Opposition to Intervenor/Respodnent Collier County's Motion In Opposition/Motion to Dismiss w/exhibit-A filed. (From Nancy E. Stroud) |
| Aug. 23, 1990 | Notice of Hearing sent out. (hearing set for April 1-5, 1991: 9:00 am: |
| Aug. 16, 1990 | Order Granting Petition to Intervene sent out. |
| Aug. 14, 1990 | Intervenor/Respondent Collier County's Motion in Opposition/Motion toDismiss w/exhibits A-D filed. (From Marjorie M. Student) |
| Aug. 13, 1990 | Response to Prehearing Order filed. (From filed. (From Nancy E. Stroud) |
| Aug. 13, 1990 | Respondent Collier County's Motion in Opposition/Motion For More Definite Statement filed. (From Marjorie M. Student) |
| Aug. 13, 1990 | Respondent Collier County's Petition For Leave to Intervene filed. (From Marjorie M. Student) |
| Aug. 13, 1990 | Respondent Collier County's Motion in Opposition/Motion to Strike filed. (From Marjorie M. Student) |
| Jul. 31, 1990 | Prehearing Order sent out. |
| Jul. 30, 1990 | PPF's sent out. |
| Jul. 23, 1990 | Petition Challenging Determination of Compliance; Collier County Zoning Reevaluation Ordinance; & Agency Referral Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 20, 1992 | Agency Final Order | |
| Apr. 13, 1992 | Recommended Order | Plan provisions imposing concurrency on public facilities (except roads) for which concurrency required are inconsistent with statutes and rules |
