STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RESOLUTION TRUST CORPORATION, )

)

Petitioner, )

)

vs. )

)

CITY OF SOUTH MIAMI, )

)

Respondent, ) CASE NO. 93-1517DRI and )

) DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Intervenor. )

)

RECOMMENDED ORDER

Inasmuch as there are no material facts in dispute in the instant case, the Hearing Officer, in accordance with the expressed desires of Petitioner and Respondent, has not conducted a formal hearing.

APPEARANCES

For Petitioner Valerie Fernandez Settles, Esquire Resolution George B. Hanna, Esquire

Trust Corporation: FOWLER, WHITE, BURNETT, HURLEY,

BANICK & STICKROOT, P.A.

Court House Center, 11th Floor Miami, Florida 33128-1835

For Respondent Gregory P. Borgognoni, Esquire City of South Miami: RUDEN, BARNETT, McCLOSKY, SMITH,

SCHUSTER & RUSSELL, P.A.

701 Brickell Avenue, Suite 1900

Miami, Florida 33131

For Intervenor Terrell K. Arline, Esquire Department of Assistant General Counsel Community Affairs: Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100 STATEMENT OF THE ISSUE

Whether the Florida Land and Water Adjudicatory Commission should grant Petitioner's request for an additional two-year extension of the buildout date currently set forth in the amended development order issued by the City of South Miami authorizing the Bakery Centre development of regional impact and, if so, upon what, if any, conditions and restrictions?

PRELIMINARY STATEMENT

On January 21, 1993, the Resolution Trust Corporation (also referred to herein as "Petitioner" or the "RTC") filed with the Florida Land and Water Adjudicatory Commission (hereinafter referred to as the "Commission") written notice of its appeal of Resolution No. 137-92-9342, in which the City of South Miami had denied the RTC's request to extend, for a second time, the buildout date of the previously approved Bakery Centre development of regional impact. The RTC's notice of appeal was accompanied by a petition in which it argued that the extension it had sought from the City of South Miami (hereinafter referred to as the "City") was not a "substantial deviation requiring further [development of regional impact] review" under Chapter 380, Florida Statutes, and therefore "the City's denial of the request [was] arbitrary and capricious and . . . an abuse of discretion."

The City filed an answer to the petition. In its answer, the City stated the following:

1. The City admits all the factual allegations contained in the petition, but affirmatively alleges that its action was reasonable under the circumstances.

2. The City submits that the issues for determination by this body principally are issues of law, and is cooperating with Appellant [Petitioner] to enter into a stipulation as to the relevant issues.

On March 17, 1993, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer.

Before scheduling a formal hearing in this case, the Hearing Officer provided the parties, at their request, with an opportunity to enter into a stipulation of facts that would obviate the need for such a hearing. The parties, however, were unable to reach an agreement. Accordingly, the Hearing Officer issued a Notice of Hearing advising the parties that a formal hearing in this case would be held on October 26, 1993.

On October 20, 1993, the Department of Community Affairs (hereinafter referred to as the "Department") filed an unopposed petition for leave to intervene in the instant case "for the limited purpose of filing . . . written comments" which were attached to the petition. In these "written comments," the Department expressed the view that, "[a]lthough [the City] must comply with the minimum requirements of the DRI statute, [it] is nonetheless empowered to refuse to extend a buildout date based upon local, non-regional concerns," even if the requested extension does not constitute a "substantial deviation" under the statute.

On October 25, 1993, the RTC and the City advised the Hearing Officer in writing that a formal hearing in this matter was not necessary and they requested that the Hearing Officer adopt the following "time schedule of submissions":

City's Statement of Facts - Ten days from [October 22, 1993];

RTC's Memorandum of Law - Fifteen days from [October 22, 1993];

City's Response [to] Memorandum of Law - Fifteen days following service of the RTC's Memorandum.

RTC's Rebuttal - Ten days following service of the City's [Response to] Memorandum.

All times are to be calculated as provided in the Rules of Civil Procedure.

The Hearing Officer subsequently issued an order cancelling the formal hearing and directing the parties to abide by the "time schedule of submissions" he had been asked to adopt. The City's statement of the facts, the RTC's memorandum of law, the City's memorandum of law, and the RTC's reply to the City's memorandum of law were filed on November 2, 1993, November 9, 1993, November 24, 1993, and

December 9, 1993, respectively.

AGREED UPON "FACTS"

The following is a recitation of the undisputed "facts" upon which the RTC and the City have agreed the instant controversy should be resolved:

1. The RTC is a corporation organized and existing under the laws of the United States and is an instrumentality of the United States.

   
   

2. The City is a political subdivision of Dade County, Florida.

   
   

3. The development of regional impact (hereinafter referred to as "DRI") which is the subject of this appeal is located within the boundaries of the City.

   
   

4. In March of 1982, the Holsum Real Estate Corporation submitted, pursuant to Section 380.06, Florida Statutes, an Application for Development Approval of the DRI which is commonly referred to as the Bakery Centre.

   
   

5. The Bakery Centre underwent DRI review and on October 25, 1982, a development order, Resolution No. 65-82-4065, (hereinafter referred to as the "Development Order") was issued by the City.

1. The Development Order provided for 504,000 square feet of office space, 300,000 square feet of retail development, 20,000 square feet of gallery area,

   300 hotel rooms, 110,000 square feet of mall area, and 3,000 parking spaces to be built out over a period of seven years. (Accordingly, the Bakery Centre was originally scheduled to be completed on or before October 1989.)

   
   

2. Subsequent to the issuance of the Development Order, Flagler Federal Savings and Loan Association (hereinafter referred to as "Flagler Federal") became the successor in interest to the Holsum Real Estate Corporation.

   
   

3. The City, by Resolution No. 65-82-4065-A, granted Flagler Federal an extension of the Bakery Centre buildout date until September 17, 1992.

4. On March 27, 1992, pursuant to Section 5(d)(2) of the Home Owners' Loan Act of 1933 (hereinafter referred to as "HOLA"), as amended by Section 301 of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (hereinafter referred to as "FIRREA"), Flagler Federal was closed by the Office of Thrift Supervision (hereinafter referred to as "OTS").

   
   

5. Pursuant to Section 5(d)(2) of HOLA, as amended by Section 301 of FIRREA, the OTS appointed the RTC as sole receiver for Flagler Federal.

   
   

6. The RTC, as receiver for Flagler Federal, took possession of Flagler Federal on March 27, 1992, and pursuant to Sections 212 and 501 of FIRREA succeeded to all of the rights, powers and privileges of Flagler Federal.

   
   

7. The RTC, as receiver for Flagler Federal, is charged by FIRREA with disposing of the assets of this failed savings and loan association in a responsible and prudent manner.

   
   

8. The Bakery Centre has been partially developed. Approximately 194,000 square feet of retail space and related mall space have been completed. Additionally, a five story parking garage and surface parking, accommodating 1,154 parking spaces, has also been developed on the site.

   
   

9. The RTC is currently in the process of preparing a marketing package, appraisals and due diligence reports in order to effectively market and sell the Bakery Centre.

   
   

10. On September 4, 1992, the RTC, pursuant to Section 380.06(19)(e)2., Florida Statutes, filed a Notice of Proposed Change to a Previously Approved Development Order (hereinafter referred to as the "Notice").

    
    

11. The Notice requested an additional two-year extension of the Development Order buildout date.

    
    

12. No public hearing was held on the request.

    
    

13. Instead, the matter was brought before the City Commission at its December 8, 1992, meeting.

    
    

14. Stanley Tate and Valerie Fernandez Settles, Esquire, addressed the Commission on behalf of the RTC at this December 8, 1992, City Commission meeting. Gregory Borgognoni served as the City Commission's legal advisor.

15. According to the minutes of the meeting: Mr. Stanley Tate, RTC Advisory Board,

    addressed the Commission. He stated that the RTC has been charged with selling the Bakery Centre and, statutorily, it is their responsibility to get the highest possible market value. They feel that an extension of the PUD would give this property a higher market value. If the extension is granted, anyone seeking to build on the property would still come to the Commission for site plan approval before any building could occur.

    Valerie Settles, attorney with Fowler, White, Burnett, Hurley, Banick and Stickroot, 175

    N.W. 1st Avenue, spoke as the attorney for the RTC. She read into the record a letter which is in response to the memorandum from Special Counsel Borgognoni to the South Miami Commission with regard to what actions the Commission may take with reference to this requested extension to the Bakery Centre. A copy of this letter and memorandum is attached for reference. 1/

    
    

    Ms. Settles stated that the RTC is speaking to the future and wishes to maintain the highest possible selling value on the property and this, in her opinion, would be with the requested PUD extension.

    
    

    Discussion ensued with regard to a practical time frame for the PUD extension and what time frame for the extension is permitted under Florida Statutes. Mr. Tate again stated that if the PUD is left in place, the position of the RTC to get the highest value for the property, will be enhanced.

    
    

    Commission held discussion and asked questions with regard to what the RTC is actually requesting and pertinent dates involved.

    
    

    Special Counsel Borgognoni addressed the Commission. He explained that with an extension, a buyer could build to all that was approved in the 1982 PUD. He maintains his opinion as stated in his memorandum to the Commission: the Commission may extend the PUD, the Commission may choose not to extend the PUD and the Commission may defer action pending further study of the matter.

    
    

    Ms. Settles stated that an extension would permit the buyer to keep certain rights (credits) which, in her opinion, are vested. Therefore, the buyer would not have to start over from the beginning. Vice-Mayor Cooper noted that the improvements made are capital improvements and would stay in place in any event.

    
    

    Mr. Borgognoni stated that the extension is at the discretion of the Commission. The Commission cannot act, nor would they act, in an arbitrary or capricious manner. They have the sole ability to grant or deny the extension as long as their action is reasonable, not capricious.

    Mayor McCann asked if a denial is defensible. Mr. Borgognoni stated that, although there isn't any case law available, it is his opinion that the Commission's position is defensible.

    
    

    Discussion was held with regard to what could be built now with a PUD extension of a PUD that was granted in 1982. Commissioner Carver noted that if the site plans presented by a new buyer meet the PUD requirements and the Land Development Code (LDC) requirements, then the Commission would not have any legislative discretion with the exception of current modifications, i.e. Americans with Disabilities Act (ADA) requirements.

    
    

    Mayor McCann stated her objection to the statement by the RTC that they are requesting an extension so that they can market the property at a higher value when the RTC has clearly stated that for anyone to build on the property would take much longer than the time period being requested.

    
    

    Commissioner Banks stated her objection to having a developer for the property buy it under a PUD extension when the seller already has stated that the requested extension would not be for a long enough period of time in which the property could be developed.

    
    

    Mr. Tate stated that the RTC is trying to market the property with some of the "credits" maintained, i.e. any fees already paid. If the City wishes to, an agreement can be reached that the height limitation on the PUD is reduced.

    
    

    Vice-Mayor Cooper stated his doubt that a developer would buy a property of that size for the "high market value" that the RTC is trying to get if the developer is not able to build to the full Floor Area Ratio (FAR).

    
    

    Commissioner Banks stated that she has given the request careful consideration, both as a tax payer and as an elected official of the City of South Miami who represents the people of the City. Her responsibility to the people of the City continues even after the RTC sells the property and she cannot support the request for an extension of the PUD.

    Mayor McCann noted that if a new developer requests a PUD, this would be done in conformance with the City's new Comprehensive Plan rather than under a Plan of a different day and time. She cannot support the request for an extension and urged the RTC to market the property at the best possible price, as they have stated, so that all citizens in the United States can benefit.

    
    

    Mayor McCann stated she would like to make a motion to change the heading and body of the resolution to "deny" the request and asked if this is necessary.

    
    

    Both Special Counsel Borgognoni and City Attorney Berg stated that this is the preferable way to handle the matter.

    
    

    Moved by Mayor McCann, seconded by Vice-Mayor Cooper, that the Resolution heading and body be changed to "deny."

    
    

    Commission Carver stated that the evidence that has been brought to the Commission is very clear and convincing. It is not, in his opinion, a good faith effort on the part of the RTC when it is not possible to complete a project [i]n the time period that would be allotted by the extension. He, therefore, cannot support the request.

    
    

    Commissioner Bass stated that the foremost issue is to have the property sold, at the best possible value, so that the City of South Miami residents can have the benefit of having the offset on their residential taxes. The area of South Miami is enticing and she would like to see a developer come to the City in good faith. She, therefore, will not support the extension.

    
    

    Vice-Mayor Cooper stated that there have been many changes since the City approved the PUD in 1982. It is his opinion that to extend the prior development order is not the proper path for the City to take in order to have a good and viable downtown.

    
    

    Motion on amendment (to deny) passed 5/0: Mayor McCann, yea; Vice-Mayor Cooper, yea; Commissioner Banks, yea; Commissioner Carver, yea; Commissioner Bass, yea.

    RESOLUTION NO. 137-92-9342

    
    

    A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, DENYING THE REQUEST OF THE RESOLUTION TRUST CORPORATION FOR AN EXTENSION OF THE FINAL BUILD-OUT DATE FOR THE PLANNED UNIT DEVELOPMENT COMMONLY KNOWN AS THE BAKERY CENTRE AND LEGALLY DESCRIBED HEREINBELOW UNTIL OCTOBER 24, 1994.

    
    

    Motion on resolution, as amended, passed 5/0:

    Mayor McCann, yea; Vice-Mayor Cooper, yea; Commissioner Banks, yea; Commissioner Carver, yea; Commissioner Bass, yea.

    
    

    The second item on the meeting agenda, a report on the condition of the City's parks and trees, was deferred. City Manager Hampton has been ill and he would like more

    time to prepare the report for the Commission.

    
    

    There was no further business and the meeting adjourned at 9:15 P.M.

    
    

16. Although the Mayor and City Commissioners explained at their December 8, 1992 meeting why they were voting in favor of the resolution denying the RTC's requested extension of the Bakery Centre's buildout date, the resolution itself, which provides as follows, does not set forth any reasons for the denial of the request:

    
    

    RESOLUTION NO. 137-92-9342

    
    

    A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, DENYING THE REQUEST OF THE RESOLUTION TRUST CORPORATION FOR AN EXTENSION OF THE FINAL BUILD-OUT DATE FOR THE PLANNED UNIT DEVELOPMENT COMMONLY KNOWN AS THE BAKERY CENTRE AND LEGALLY DESCRIBED HEREINBELOW UNTIL OCTOBER 24, 1994.

    
    

    WHEREAS, on October 25, 1982, by Resolution No. 65-82-4065, the South Miami City Commission approved a Planned Unit Development for the property commonly known as The Bakery Centre and legally described in the attached Exhibit "A"; and

    
    

    WHEREAS, the aforesaid Planned Unit Development had a final build-out date of October 25, 1989; and

    
    

    WHEREAS, by Resolution No. 65-82-4065A, dated October 17, 1989, the Mayor and City Commission granted an extension until September 17, 1992; and

    WHEREAS, the present owner of the property, the Resolution Trust Corporation (RTC) has presented a request to extend that final build-out date until October 24, 1994; and

    
    

    WHEREAS, the City Commission is the final authority to decide upon the request and has now heard the Applicant;

    
    

    NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:

    
    

    Section 1. That the request of the Resolution Trust Corporation (RTC) to extend the final build out date for the property commonly known as the Bakery Centre to October 24, 1994, be, and same hereby is, denied.

    
    

    PASSED AND ADOPTED this 8th day of December, 1992.

    
    

17. The RTC appealed Resolution No. 137-92-9342 to the Florida Land and Water Adjudicatory Commission.

    
    

    CONCLUSIONS OF LAW

    
    

18. Chapter 380, Florida Statutes, contains the requirements that must be followed where there is a "development of regional impact," which is defined therein as "any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county." Section 380.06(1), Fla. Stat.

    
    

19. These requirements impose "additional restraints on the right of the owner or developer of a large scale development, which will have regional as well as local impact, to make use of his property." They do "not replace local regulatory procedures which must be followed by all property owners seeking to develop their property." Friends of the Everglades, Inc. v. Board of County Commissioners of Monroe County, 456 So.2d 904, 908 (Fla. 1st DCA 1984), rev. denied, 462 So.2d 1108 (1985).

    
    

20. "Chapter 380, accordingly, 'carefully preserves the rights of local governments to the maximum extent possible in [regulating the use of] property within [their] boundaries.'" Id. at 909.

    
    

21. The provisions of Chapter 380, Florida Statutes, at issue in the instant case are found in subsection (19) of Section 380.06, Florida Statutes, which deals with proposed changes to previously approved developments of regional impact and which provides in pertinent part as follows:

    
    

    1. Any proposed change to a previously approved development which creates a reasonable likelihood of additional regional impact, or any type of regional impact created by the change not previously reviewed

       by the regional planning agency, shall constitute a substantial deviation and shall cause the development to be subject to

       further development-of-regional-impact review.

       * * *

       (c) An extension of the date of buildout of a development, or any phase thereof, by 5 or more years shall be presumed to create a substantial deviation subject to further development-of-regional-impact review. An extension of the date of buildout, or any phase thereof, of 3 years or more but less than 5 years shall be presumed not to create a substantial deviation. These presumptions may be rebutted by clear and convincing evidence at the public hearing held by the local government. . . .

       * * * (e)2. . . . [A] proposed change . . . which involves an extension of the date of buildout of a development or phase of development by less than 3 years, is not a substantial deviation and is not subject to a public hearing pursuant to subparagraph (f)3. or a determination pursuant to subparagraph

       (f)5. . . .

       4. Any submittal of a proposed change to a previously approved development shall include a description of individual changes previously made to the development, including changes previously approved by the local government. The local government shall consider the previous and current changes in deciding whether such changes cumulatively constitute a substantial deviation requiring

       further development-of-regional-impact-review.

       * * * (f)1. The state land planning agency shall establish by rule standard forms for submittal of proposed changes to a previously approved development of regional impact which may require further development-of-regional- impact review. At a minimum, the standard form shall require the developer to provide the precise language which the developer proposes to delete or add as an amendment to the development order.

       
       

       1. The developer shall submit, simultaneously, to the local government, the regional planning agency, and the state land planning agency the request for approval of a proposed change.

          
          

       2. No sooner than 30 days but no later than

          45 days after submittal by the developer to the local government, the state land planning

          agency, and the appropriate regional planning agency, the local government shall give 15 days' notice and schedule a public hearing to consider the change that the developer asserts does not create a substantial deviation.

          
          

       3. The appropriate regional planning agency or the state land planning agency shall review the proposed change and may, in its discretion and within 30 days of submittal by the developer of the request for approval of a change, advise the local government of its intention to participate at the public hearing before the local government. . . .

          
          

       4. At the public hearing, the local government shall determine whether the proposed change requires further development- of-regional-impact review. The provisions of paragraphs (a) and (e), the thresholds set forth in paragraph (b), and the presumptions set forth in paragraphs (c) and (d) and subparagraphs (e)1. and 3. shall be applicable in determining whether further development-of-regional-impact review is required.

          
          

       5. If the local government determines that the proposed change does not require further development-of-regional-impact review and is otherwise approved, or if the proposed change is not subject to a hearing and a determination pursuant to subparagraphs (f)3. and 5. and is otherwise approved, the local government shall issue an amendment to the development order incorporating the approved change and conditions of approval relating to the change. The decision of the local government to approve, with or without conditions, or to deny the proposed change that the developer asserts does not require further review shall be subject to the appeal provisions of s. 380.07. . . .

       
       

22. The "provisions of s. 380.07," Florida Statues, allow "the owner, the developer, an appropriate regional planning agency . . . , [and] the state land planning agency" to appeal to the Commission any "development order 2/ in

    regard to any development of regional impact" on the ground that the local government departed from the standards and requirements of Chapter 380, Florida Statutes, in issuing the order. See Friends of the Everglades, Inc. v. Zoning Board, Monroe County, 478 So.2d 1126, 1128 (Fla. 1st DCA 1985), rev. denied, 488 So.2d 830 (Fla. 1986)("[w]hile there are no expressed criteria for the decision to appeal, Section 380.07(4) does require that the FLWAC decision be made 'pursuant to the standards of this chapter,' and the decision to appeal thus would arguably encompass consideration of whether a development order accords with the general standards of Chapter 380"); Section 380.07(4), Fla.

    Stat.("[t]he Florida Land and Water Adjudicatory Commission shall issue a decision granting or denying permission to develop pursuant to the standards of this chapter and may attach conditions and restrictions to its decisions").

    
    

23. The Commission, however, is without authority to hear and resolve any claims simply challenging the constitutionality of a development order. Such claims are only susceptible to judicial resolution. See Broward County v. La Rosa, 505 So.2d 422, 423 (Fla. 1987) ("although the legislature has the power to create administrative agencies with quasi-judicial powers, the legislature cannot authorize these agencies to exercise powers that are fundamentally judicial in nature"); Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla. 1978) ("the administrative hearing officer lacks jurisdiction to consider constitutional issues"); Home Builders and Contractors Association of Brevard, Inc. v. Department of Community Affairs, 585 So.2d 965, 968 (Fla. 1st DCA 1991) (the hearing officer "was not asked to, nor could he, make a ruling on the question of whether urban sprawl policies are a fundamental legislative decision which could not [constitutionally] be delegated to the DCA"); Friends of the Everglades, Inc. v. Zoning Board, Monroe County, 478 So.2d 1126, 1128 (Fla. 1st DCA 1985), rev. denied, 488 So.2d 830 (Fla. 1986)(Chapter 380, Florida Statutes, "clearly leaves appellant's enforcement of due process rights at the local level to some means other than appeal" to the Commission); Coulter v. Davin, 373 So.2d 423, 427-28 (Fla. 2d DCA 1979) (constitutional issues "are matters which [an] administrative agency may not determine"); Biltmore Construction Company v. Florida Department of General Services, 363 So.2d 851, 854 (Fla. 1st DCA 1978) ("[w]ile an administrative agency may exercise quasi-judicial power when authorized by statute, it may not exercise power which is basically and fundamentally judicial;" "[s]uch action violates Article II, Section 3 of the Florida Constitution" 3/); Adams Packing Association, Inc. v. Florida Department of Citrus, 352 So.2d 569 (Fla. 2d DCA 1977) ("[i]t is a firmly established principle of law that challenges to the constitutionality of acts of the legislature and actions of an administrative agency created by the legislature are for the courts alone to determine;" "[b]ecause it is a judicial function to be performed solely by the courts, an administrative agency cannot be empowered or authorized to make this determination"); Department of Revenue of Florida v. Young American Builders,

    330 So.2d 864, 865 (Fla. 1st DCA 1976) ("[t]he Administrative Procedure Act could not and does not relegate Fourteenth Amendment questions to administrative determination, nor restrict the occasions for judicial consideration of them by reference in Section 120.73 4/ to ch. 86, F.S., nor otherwise impair the judicial function to determine constitutional disputes").

    
    

24. The inclusion of Section 380.08(1), Florida Statutes, which provides as follows, in Chapter 380, Florida Statutes, should not be considered an indication that it was the Legislature's intention to confer such authority upon the Commission:

    
    

    Nothing in this chapter authorizes any governmental agency 5/ to adopt a rule or regulation or issue an order that is unduly restrictive or constitutes a taking of property without the payment of full compensation, in violation of the constitutions of this state or of the United States.

    Particularly in light of the well established rule of statutory construction that, where reasonably possible, statutes should be construed to withstand constitutional attack, a more reasonable interpretation is that the Legislature merely wanted to make clear that no provision in Chapter 380, Florida Statutes, was intended to shield a governmental agency from being held accountable and liable in a court of competent jurisdiction for any one of its rules, regulations or orders "that is unduly restrictive or constitutes a taking of property without the payment of full compensation, in violation of the constitutions of this state or of the United States." See State v. Gale Distributors, Inc. 349 So.2d 150, 153 (Fla. 1977) ("[t]his court is committed to the proposition that it has a duty, if reasonably possible, and consistent with constitutional rights, to resolve all doubts as to the validity of a statute in favor of its constitutionality and to construe it so as not to conflict with the Constitution"); Rich v. Ryals, 212 So.2d 641, 643 (Fla. 1968) ("we are to presume that the Legislature intended to pass a valid and constitutional act"); Ayala v. Department of Professional Regulation, 478 So.2d 1116, 1118 (Fla. 1st DCA 1985) ("we must first construe section 458.331(1)(c) in any permissible way that will allow it to withstand constitutional attack"); Smith v. Willis, 415 So.2d 1331, 1336 (Fla. 1st DCA 1982) (although an administrative agency may not decide the constitutional validity of a statute, it "may construe a statute and apply it mindful of constitutional influences").

    
    

25. In a Section 380.07, Florida Statutes, appeal proceeding, the burden is upon the party appealing the development order to prove by a preponderance of the evidence that the order was not issued in accordance with the standards and requirements prescribed in Chapter 380, Florida Statutes. See Young v. Department of Community Affairs, 18 FLW S476, S478 (September 9, 1993) ("[t]he Department was the party asserting the affirmative that the development orders [under review by the Commission] were not in accordance with chapter 380" and "[c]onsequently, the ultimate burden of persuasion and the initial burden of going forward with the evidence rested on the Department"); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 415 (Fla. 4th DCA 1974) ("'[a]s a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding--that is, a preponderance of the evidence").

    
    

26. In the instant appeal proceeding, the appealing party, the RTC, has failed to meet this burden of proof.

    
    

27. There has been no showing that, in acting upon the RTC's request for an extension of the buildout date of the Bakery Centre, the City deviated from any of the standards or requirements of Chapter 380, Florida Statutes, including those of subsection (19)(e)2. of Section 380.06, Florida Statutes, to which the RTC refers in its petition.

    
    

28. Subsection (19)(e)2. of Section 380.06, Florida Statutes, provides that "an extension of the date of buildout of a development or phase of development by less than three years," [which the parties agree is the type of extension the RTC is seeking in the instant case] is not a substantial deviation and is not subject to a public hearing pursuant to subparagraph (f)3. or a determination pursuant to subparagraph (f)5."

    
    

29. Consistent with the provisions of subsection (19)(e)2. of Section 380.06, Florida Statutes, the City did not hold a public hearing to determine whether the RTC's requested extension of the buildout date of the Bakery Centre was a "substantial deviation," but rather, based merely upon the length of the

    requested extension, as the statute dictates, deemed it not to be a "substantial deviation" and therefore not subject to further development-of-regional-impact review.

    
    

30. Having made this determination, the City was not compelled by any provision of Chapter 380, Florida Statutes, to then grant the requested extension.

    
    

31. Subsection (19)(f)6. of Section 380.06, Florida Statutes, requires a local government to issue an amendment to a development order incorporating a requested extension of the buildout date of three years or less only if the requested extension is "otherwise approved" by the local government.

    
    

32. A local government therefore clearly has the discretion under Chapter 380, Florida Statutes, to decline to extend the buildout date of a previously approved development of regional impact even though the extension sought does not constitute a "substantial deviation" subject to further development-of- regional-impact review.

    
    

33. While the local government must act in a manner consistent with constitutional principles in exercising its discretion, Chapter 380, Florida Statutes, imposes no additional standards or requirements governing the exercise of the local government's discretion.

    
    

34. In the instant case, for the reasons reflected in the written minutes of the City Commission's December 8, 1992, meeting, the City exercised its discretion, in a manner that was neither arbitrary nor capricious, 6/ to deny the RTC's request to further extend the buildout date of the Bakery Centre.

    
    

35. In so doing, the City did not contravene any standard or requirement imposed by Chapter 380, Florida Statutes.

    
    

36. Accordingly, the City's action should not be disturbed by the Commission.

RECOMMENDATION

Based upon the foregoing Agreed Upon "Facts" and Conclusions of Law, it is hereby

RECOMMENDED that the Commission enter a final order letting stand the City's denial of the RTC's request for an additional two-year extension of the buildout date of the Bakery Centre.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of December, 1993.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1993.

ENDNOTES

1/ In her letter to the City Commission, Settles stated, among other things, the following:

Section 380.06(19)(f)(6) F.S. states that if the proposed change is not subject to a hearing and determination pursuant to Chapter 380.06(19)(e)(2) F.S., the local government shall issue an amendment of the development order incorporating the approved change and conditions of approval relating to the change. That section also states that "The decision of the local government to approve, with or without conditions, or to deny the proposed change that the developer asserts does not require further review shall be subject to the appeal provisions of s.

380.07." Section 380.07 F.S. provides for the appeal to the Florida Land and Water Adjudicatory Commission. The filing of the notice of appeal stays the effectiveness of the local government order until after the completion of the appeal process.

Mr. Borgognoni states at paragraph a. of the Memo that the City may grant the extension of time, "in which case the RTC (or its successors) will be able to develop the Bakery Centre pursuant to the development order . . . . " First, as we have discussed with you, the RTC is not a developer, but the Receiver for the owner. The RTC seeks this extension in order to maintain the status quo until the new owner purchases the Property.

Though, theoretically, Mr. Borgognoni's statement is true, as a practical matter, it would be impossible to "develop" the Property in a two year time period. What the RTC envisions is that with existing approvals in place, a new owner will be in a position to

utilize the credits and rights the law ascribes to a development order as a basis for formulating and processing new development plans with the City.

2/ A "development order," as that term is used in Chapter 380, Florida Statutes, is "any order granting, denying, or granting with conditions an application for a development permit." Section 380.031(3), Fla. Stat. Such a "development permit" "includes any building permit, zoning permit, plat approval, or rezoning, certification, variance, or other action having the effect of permitting development as defined in [Chapter 380, Florida Statutes]." Section 380.031(4), Fla. Stat.

3/ Article II, Section 3 of the Florida Constitution provides as follows:

The powers of state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

4/ Section 120.73, Florida Statutes, provides as follows: Nothing in this chapter shall be construed to repeal any provision of the Florida Statutes which grants the right to a proceeding in circuit court in lieu of an administrative hearing or to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of chapter 86.

5/ As used in Chapter 380, Florida Statutes, the term "governmental agency" includes "any local government." Section 380.031(6)(c), Fla. Stat.

6/ If a decision "is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it would seem that the decision is neither arbitrary nor capricious." Dravo Basic Materials Company, Inc. v. State Department of Transportation, 602 So.2d 632, 634 n.3 (Fla. 2d DCA 1992). Given the omission from the RTC's presentation to the Mayor and City Commission of any explanation as to why the project had not been completed within the time frame set forth in the development order it proposed to change, plus the statement made by the attorney representing the RTC that "it would be impossible to 'develop' the Property in a two year time period," the City's denial of the additional two-year extension sought by the RTC was reasonably justified and therefore neither arbitrary nor capricious.

COPIES FURNISHED:

Valerie Fernandez Settles, Esquire George B. Hanna, Esquire

FOWLER, WHITE BURNETT, HURLEY, BANICK & STICKROOT, P.A.

CourtHouse Center 11th Floor Miami, Florida 33128-1835

Gregory P. Borgognoni, Esquire RUDEN, BARNETT, McCLOSKY, SMITH,

SCHUSTER & RUSSELL, P.A.

701 Brickell Avenue, Suite 1900

Miami, Florida 33131

Terrell K. Arline, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Greg Smith, Esquire Assistant General Counsel Office of the Governor The Capitol, Room 209

Tallahassee, Florida 32399-0001

David Coburn, Secretary

Florida Land and Water Adjudicatory Commission c/o Georgia Katz

426 Carlton Building Tallahassee, Florida 32399

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 OF TIME 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 IN THIS CASE.

Docket for Case No: 93-001517DRI

Orders for Case No: 93-001517DRI