STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PARK CENTRAL INDUSTRIAL, )

a Florida general partnership, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1452DRI

)

CITY OF POMPANO BEACH, )

)

Respondent, )

and )

) DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to the stipulation of the parties, who waived a formal hearing in the above-styled case on August 4, 1995, this record has been reviewed by Joyous

1. Parrish, a hearing officer assigned by the Division of Administrative Hearings, in Tallahassee, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Richard G. Coker, Jr.

   BRADY & COKER

   1318 Southeast 2nd Avenue

   Fort Lauderdale, Florida 33316

   
   

   For Respondent: Gordon B. Linn

   Assistant City Attorney City of Pompano Beach Post Office Box 2083

   Pompano Beach, Florida 33061

   
   

   For Intervenor: Suzanne H. Schmith

   Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

   Tallahassee, Florida 32399-2100 STATEMENT OF THE ISSUES

   The central issue in this case is whether the original development order adopted by the city, Ordinance no. 82-43, created a buildout date which precludes the extension of such time until December 30, 2002, without a showing, by clear and convincing evidence, that such extension would not create a substantial deviation.

   PRELIMINARY STATEMENT

   
   

   This case began on November 29, 1994, when the City of Pompano Beach, Florida, passed an ordinance, Ordinance no. 95-23, which made the following findings pursuant to Section 380.06(19), Florida Statutes:

   
   

   1. Broward County Ordinance 82-43 and subsequent City ordinances established December 31, 1991 as the buildout date for this project by incorporation of the Phasing Schedule and by incorporating the Application for Development Approval.

   2. City of Pompano Beach Ordinance 88-40 created a termination date of December 31, 1995.

   3. The requested buildout date extension to December 30, 2002, represents a cumulative extension of approximately eleven (11) years.

   4. An extension of the buildout date to December 30, 1998 represents a cumulative extension of not more than seven (7) years.

Further, the ordinance made the following conclusions of law pertinent to this case:

1. The Applicant's proposal to extend the buildout date to December 30, 2002 is presumed to constitute a substantial deviation and the Applicant has not submitted sufficient evidence to rebut this presumption.

2. An extension of the buildout date to December 30, 1998 does not constitute a substantial deviation.

The Petitioner, Park Central Industrial, originally "Andrews Avenue Business Park," has taken exception to the findings and conclusions reached by the City of Pompano Beach (City) and supported by the Intervenor, Department of Community of Affairs (Department). Petitioner maintains that this case is controlled by Killearn Properties, Inc. v. Department of Community Affairs, 623 So. 2d 771 (Fla. 1st DCA 1993). Accordingly, Petitioner argues that the original development order did not create a buildout date so that the request to extend allowing a December 30, 2002 buildout is permissible without establishing the presumption of a substantial deviation.

On January 17, 1995, the Petitioner filed its appeal pursuant to Section 380.07(2), Florida Statutes, with the Florida Land and Water Adjudicatory Commission and requested the entry of a final order determining that the application for an extension of the buildout date to December 30, 2002 is presumed to not constitute a substantial deviation. On March 24, 1995, the matter was forwarded to the Division of Administrative Hearings for formal proceedings.

By stipulation, the parties agreed that the appeal did not require a hearing as documentary evidence and uncontested facts constitute the record for review. As a result, the parties agreed that a joint prehearing statement together with documentary evidence and argument would be considered. Further, the parties submitted memoranda in support of their respective positions based upon a schedule set forth in the joint statement. Such schedule was accepted

and by order entered August 8, 1995, the parties were directed to comply with the stipulation.

Petitioner's reply to the arguments and memoranda of the City and Intervenor was filed with the Division on October 18, 1995. No additional filings are expected under the parties' stipulation. Joint exhibits numbered 1 through 12 have been admitted into evidence pursuant to the stipulation.

FINDINGS OF FACT

1. Petitioner, Park Central Industrial, which is referenced in this record as Park Central DRI, was originally called the "Andrews Avenue Business Park." This project is referred to as "Park" for convenience sake.

   
   

2. The Park application for development approval (ADA) was filed in 1982 with Broward County, Florida since the property was, at that time, within an unincorporated area of the county.

   
   

3. The Broward County Commission adopted Ordinance 82-43, effective August 26, 1982, which approved the project and made specific findings in connection with the development.

   
   

4. At the time of the passage of Ordinance 82-43, Section 380.06, Florida Statutes, did not require the inclusion of a buildout date in a development order.

   
   

5. At the time of the passage of Ordinance 82-43, Section 380.06, Florida Statutes, did not preclude the inclusion of a buildout date in a development order.

   
   

6. Ordinance 82-43, recorded in the public record for Broward County, Florida, which is also known as the original development order (Joint Ex. 2), provided, in pertinent part:

   
   

   Section 3. Phasing of Development

   3.01 The development and construction of each of the five (5) phases within the Andrews

   Avenue Business Park shall proceed in accordance with the Master Development and Phasing Plan attached hereto as Exhibit "2."

   * * * Section 4. General Provisions.

   4.01 The ADA submitted to the SFRPC, is incorporated herein by reference and relied upon by the parties in discharging the statutory duties under Chapter 380, Florida Statutes. Substantial compliance with the representations contained in the ADA is a condition for approval unless waived or modified by agreement among the parties.

   * * *

   4.08 . . . The Applicant shall obtain County approval of any proposed change in the state Phasing Plan, as prescribed in Section 3.02 of this Development Order.

7. The Phasing Plan identified as Exhibit "2" in Section 3.01 above specified that the final date for construction to end for all five phases was 1991. Such date has been interpreted by the City and Intervenor to mean not later than December 31, 1991.

   
   

8. The ADA incorporated by reference to Ordinance 82-43 provided for a buildout date of 1991.

   
   

9. Additionally, the title to the original development order specified that the ordinance was "ESTABLISHING A PROCESS FOR CONTROLLED BUILDOUT OF THE ANDREWS AVENUE BUSINESS PARK DEVELOPMENT OF REGIONAL IMPACT."

   
   

10. In September 1983, the Park was annexed into the City. Consequently, the City became the local governmental agency responsible for assuring compliance with the development order.

    
    

11. On March 22, 1988, the City adopted two ordinances which amended the original development order. These ordinances, numbered 88-39 and 88-40, allowed the inclusion of an additional 9.5 acres and made pertinent findings related to this case.

    
    

12. Ordinance 88-39 provided, in part:

    
    

    WHEREAS, the development phasing of this project is being extended by four years

    beyond the original Development Order schedule such that full development will not be completed until 1995; and

    * * *

    7. The proposed extension of the date of buildout for the development does not exceed the threshold limitations established in Section 380.06(19)(c), Florida Statutes.

    
    

13. Ordinance 88-40 provided, in part:

    
    

    Section 3: This Development Order shall terminate at midnight on December 31, 1995.

    
    

14. Park did not challenge the findings nor the conclusions reached in Ordinances 88-39 and 88-40. Subsequently, however, Park filed an application with the City to again amend the development order to extend the buildout and termination dates from December 31, 1995 to December 30, 2002.

    
    

15. With input from the South Florida Regional Planning Council and the Department of Community Affairs, the City enacted Ordinance 95-23 which provided, in part:

    
    

    WHEREAS, The Applicant also requested on September 30, 1994 that the buildout date be extended to December 30, 2002; and

    WHEREAS, at the Public Hearing held on Ocober (sic) 4, 1994, the Applicant requested that the City Commission consider an alternative

    buildout date extension to December 30, 1998; and

    * * *

    Section 1. The foregoing "WHEREAS" clauses

    are true and correct and are hereby ratified and confirmed by the City Commission.

    Section 2. The City, pursuant to Section 380.06(19), Florida Statutes, makes the following findings of fact:

    * * *

    1. Broward County Ordinance 82-43 and subsequent City ordinances established December 31, 1991 as the buildout date for this project by incorporation of the Phasing Schedule and by incorporating the Application for Development Approval.

    2. City of Pompano Beach Ordinance 88-40 created a termination date of December 31, 1995.

    3. The requested buildout date extension to December 30, 2002, represents a cumulative extension of approximately eleven (11) years.

    4. An extension of the buildout date to December 30, 1998 represents a cumulative extension of not more than seven (7) years.

    * * *

    SECTION 3. Conclusions of Law. Pursuant to Section 380.06(19), Florida Statutes, the City makes the following conclusions of law:

    * * *

    1. The Applicant's proposal to extend the buildout date to December 30, 2002 is presumed to constitute a substantial deviation and the Applicant has not submitted sufficient evidence to rebut this presumption.

    2. An extension of the buildout date to December 30, 1998 does not constitute a substantial deviation.

    
    

    SECTION 4. Modification of Development. The Development Order is hereby amended as follows:

    1. The buildout date of the Park Central Development of Regional Impact is hereby extended and the new buildout date is December 30, 1998.

    2. The termination date of the Park Central Development of Regional Impact is hereby extended and the new termination date is December 30, 1998.

    
    

16. Section 380.06(19)(c), Florida Statutes, provides that an extension of a buildout date of less that seven years is presumed not to create a substantial deviation. The extension of a buildout date beyond seven years creates a presumption of a substantial deviation which a developer must refute with clear and convincing evidence.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings.

18. Petitioner relies on Killearn Properties, Inc. v. Department of Community Affairs, 623 So.2d 771 (Fla. 1st DCA 1993) to maintain that a buildout date cannot be imputed from general language in a development order or an ADA. The Killearn court found, at 775:

    
    

    If the DO contains a buildout date, such date must arise from the terms of the DO itself, because nothing in section 380.06, Florida Statutes (1975), under which the DO was entered, required a buildout date. Where the language

    of the DO is plain and unambiguous, there is no room for construction or interpretation, and the effect of the DO must be determined according to the literal meaning of the language therein. The DO must not be construed to contain omitted provisions.

    Boynton v. Canal Authority, 311 So.2d 412, 415 (Fla. 1st DCA 1975). The DO simply approved the ADA "as stated" in the ADA. Although the ADA contains repeated references to Killearn's estimate that construction within the DRI would be concluded within ten years, the ADA contains no provision which imposes on Killearn the

    obligation to conclude development within ten years.

    
    

19. The instant case is distinguishable from Killearn in several respects. The clear and unambiguous language of this development order provided for a buildout date of 1991. The ADA and the phasing plan incorporated by reference to the original development order specified that the project would be completed by 1991. This was not a general statement of an estimated time of buildout. Adherence to the phasing schedule was a mandated portion of the original ordinance.

    
    

20. Secondly, when the original development order was amended by Ordinances 88-39 and 88-40, the buildout and termination dates were extended to December 31, 1995. The facts available to the Killearn court did not include the clarity of the language of these amending ordinances. Moreover, these ordinances were unchallenged by the Petitioner.

    
    

21. Finally, the Killearn court recognized that the problem inherent in an ambiguous development order was compounded by a lack of notice to subsequent parties in interest. In this case, the development order was recorded in the public record. The terms of the development order and its amendments are undisputed by the parties in interest. The amendment to the development order acknowledged that the proposed extension of the buildout (from 1991 to 1995) did not exceed the limitation in Section 380.06, Florida Statutes.

    
    

22. Based upon the foregoing, the extension of the buildout date in this case to December 30, 2002, is presumed to create a substantial deviation, which has not been rebutted. Therefore, the maximum extension available to this Petitioner would be December 30, 1998.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Florida Land and Water Adjudicatory Commission enter a final order finding that the original development order contained a buildout date of 1991 which was extended to December 31, 1995 by the subsequent ordinance and which cannot under the circumstances of this case be extended beyond December 31, 1998.

DONE AND RECOMMENDED this 6th day of December, 1995, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 6th day of December, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1452DRI

The parties did not submit proposed findings of fact.

COPIES FURNISHED:

Gordon B. Linn, Esquire City of Pompano Beach Post Office Box 2083 Pompano Beach, FL 33061

Richard G. Coker, Jr., Esquire Brady & Coker

1318 SE 2nd Avenue

Ft. Lauderdale, FL 33316

Robert B. Bradley Secretary

Land & Water Adjudicatory Comm. 2105 The Capitol

Tallahassee, FL 32399-0001

Carolyn Dekle Director

South Fla. Regional Planning Council

3440 Hollywood Blvd., Ste 140

Hollywood, FL 33021

Dan Stengle, Esquire

Dept. of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

Gregory Smith, Esquire Office of the Governor The Capitol, Room 209

Tallahassee, FL 32399-0001

Suzanne H. Schmith Assistant General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

James F. Murley Secretary

Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

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 in this case.

Docket for Case No: 95-001452DRI

Orders for Case No: 95-001452DRI