STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY AND BETTY PROMINSKI, )

)

Petitioners, )

)

vs. ) CASE NO. 96-1402GM

)

DEPARTMENT OF COMMUNITY ) AFFAIRS and MARION COUNTY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter came before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on June 11, 1996, in Ocala, Florida.

APPEARANCES

For Petitioners: Henry J. Prominski, Esquire

Post Office Box 540

Weirsdale, Florida 32195-0540

For Respondent: Sherry A. Spiers, Esquire

(DCA) 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100

For Respondent: Thomas D. MacNamara, Esquire (County) 601 Southeast 25th Avenue

Ocala, Florida 34471-2690 STATEMENT OF THE ISSUES

Whether this controversy is rendered moot because the property in question is vested; and whether petitioners have standing as affected persons to challenge the plan amendment adopted by the County by Ordinance No. 94-12 on April 7, 1994.

PRELIMINARY STATEMENT

This matter began on November 17, 1994, when petitioners, Henry and Betty Prominski, who own a parcel of property known as Orangewood Shores in southeastern Marion County, Florida, filed a petition to intervene in Case No. 94-3751GM with respondent, Department of Community Affairs, alleging that a plan amendment adopted by respondent, Marion County, on April 7, 1994, was not in compliance. More specifically, petitioners contended that the reclassification of their land from the urban expansion to urban reserve category was "based on (in)appropriate data not having land use efficiency within the existing area," did not "maximize the existing facilities," "was not based on appropriate data of the future land use elements," was "inconsistent with contiguous and adjacent

parcels," and constituted an unlawful taking of their property. As relief, they asked that they be allowed to develop their property in a manner consistent with the prior land use designation. Although the petition to intervene in Case No. 94-3751GM was later denied on the ground it was untimely, by agreement of the parties, a new case number was assigned the petition on March 19, 1996.

By notice of hearing dated May 1, 1996, a final hearing was scheduled on June 11, 1996, in Ocala, Florida. At final hearing, the matters of mootness and standing were addressed by the parties. After hearing argument of counsel, the undersigned agreed with respondents that the matter should be dismissed. This Recommended Order confirms that ruling.

FINDINGS OF FACT

Based upon all of the pleadings and evidence, including the stipulation by counsel, the following findings of fact are determined:

1. Respondent, Marion County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. In this case, the County has adopted an amendment to its comprehensive plan, which is the subject of the dispute.

   
   

2. Petitioners, Henry and Betty Prominski, are residents of Marion County and own a 16.5 acre tract of land on the southeast bank of Lake Weir in the southeastern portion of the County. The property is more commonly known as Orangewood Shores Subdivision. Until April 1994, the land was classified in the urban expansion category, which allows up to four residential units per acre.

   
   

3. The County adopted its comprehensive plan in January 1992. After the plan was determined by the DCA to be not in compliance, the County eventually adopted certain remedial amendments on April 7, 1994, one of which changed the land use designation on petitioners' property from urban expansion to urban reserve. Under the new classification, only one residential unit per ten acres is allowed. A cumulative notice of intent to find the plan and remedial amendments in compliance was issued by the DCA on May 30, 1994. During the foregoing process, petitioners timely submitted oral or written objections to the County concerning the plan amendment, and thus they are affected persons within the meaning of the law.

   
   

4. On September 14, 1994, the County, through its Staff Vesting Committee, issued Vesting Order No. 94-14, which granted petitioners' application for vesting determination on Orangewood Shores Subdivision. Among other things, the order determined that "the applicant has vested rights to complete the development (known as Orangewood Shores Subdivision) without aggregation of lots providing the applicant continues development activity in good faith." In this regard, petitioners have represented that they intend to "continue development activity in good faith," and they do not intend to vacate their plat. They also recognize that their land is vested from the plan amendment. Despite the lack of any viable issues regarding the development of their property, for the sake of "principle" only, they still wish to contest the de facto reclassification of their property.

   
   

5. The foregoing language in the Vesting Order means that petitioners have vested rights to complete the development of their land notwithstanding the

   change of land use designation from urban expansion to urban reserve. The parties also agree that the effect of the Vesting Order is to vest the property from the comprehensive plan and the restrictions of the urban reserve area.

   Therefore, within the narrow context of the petition, the thrust of which is that the plan amendment prevents the subdivision's development, the issues raised therein are no longer viable, and petitioners do not have a cognizable interest in the outcome of this proceeding. The controversy is accordingly deemed to be moot.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57(1) and 163.3184(9), Florida Statutes.

   
   

7. The dispositive issue in this case is whether the controversy has been rendered moot by virtue of the vesting of petitioners' project. As to this issue, mootness occurs "when the issues presented are no longer 'live' or when the parties lack a legally cognizable interest in the outcome." Montgomery v. Dept. of Health and Rehab. Services, 468 So.2d 1014, 1016 (Fla. 1st DCA 1985). Here, the issues between petitioners and the County raised in the initial pleading are no longer "live" or viable. Further, petitioners have no legally cognizable interest in the outcome of this case. That is to say, any eventual determination on the merits of their claim would have no present effect on petitioners' right to develop their property. Therefore, the matter is deemed to be moot.

   
   

8. In light of the above conclusion, it is unnecessary to reach the issue of whether petitioners, as the owners of vested property, are affected persons. It is noted, however, that Section 163.3184(1)(a), Florida Statutes, defines in part an affected person as including

   
   

   persons owning property . . . within the boundaries of the local government whose plan is the subject of the review; . . .

   
   

   The statute also requires that

   
   

   (e)ach person . . . shall also have submitted oral or written comments, recommendations, or objections to the local government during the period of time beginning with the transmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment."

   
   

9. The statute does not require that a person who owns property within the County demonstrate that the plan amendment will impact his or her property. Therefore, so long as the owner submitted written or oral comments, recommendations or objections to the local government, as petitioners did here, the owner would have standing as an affected person to challenge a plan amendment. This would be true irrespective of whether the property was vested, or whether it was otherwise affected by the amendment.

   
   

10. In summary, while petitioners have standing as affected persons to bring this action, the issues raised in their petition have become moot. Therefore, the petition should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the petition in this

case on the ground the issues raised therein are moot.

DONE AND ENTERED this 21st day of June, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER, 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 21st day of June, 1996.

COPIES FURNISHED:

Henry J. Prominski, Esquire Post Office Box 540

Weirsdale, Florida 32195-0540

Sherry A. Spiers, Esquire Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

Thomas D. MacNamara, Esquire 601 Southeast 25th Avenue Ocala, Florida 34471-2690

James F. Murley, Secretary Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Stephanie M. Gehres, Esquire Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the Department of Community Affairs concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with Department of Community Affairs.

Docket for Case No: 96-001402GM

Orders for Case No: 96-001402GM