STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDGEWATER BEACH OWNERS ) ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-1725DRI

) WALTON COUNTY, FLORIDA; ) GRAND DUNES LTD.; and )

KPM LTD. COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, Administrative Law Judge for the Division of Administrative Hearings, conducted a final hearing in the above- styled case on October 15, 1996, in DeFuniak Springs, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: David A. Theriaque, Esquire Edgewater Beach 909 East Park Avenue

Owners Tallahassee, Florida 32301 Association, Inc.

For Respondent: George Ralph Miller, Esquire Walton County, Post Office Box 687

Florida DeFuniak Springs, Florida 32433

For Respondents: Martha Harrell Chumbler, Esquire Grand Dunes, Nancy G. Linnan, Esquire

Ltd.; and KPM, Post Office Drawer 190

Ltd. Company Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

There are four issues in this proceeding.

1. Whether the Petitioner, Edgewater Beach Owners Association, Inc. (the Association) has been denied a right to a quasi-judicial proceeding regarding Walton County Resolution 95-82 (the December 1995 Amendment).

2. Whether the December 1995 Amendment improperly revives a development of regional impact development order.

3. Whether the development approved by the December 1995 Amendment is vested from

   compliance with the local comprehensive plan adopted by the County in April 1993 (the 1993 Comp Plan).

4. If not vested, whether the development approved by the December 1995 Amendment is consistent with the 1993 Comp Plan.

PRELIMINARY STATEMENT

The Petition challenging the County's issuance of the December 1995 Amendment, was filed with the Florida Land and Water Adjudicatory Commission (FLWAC) on January 22, 1996. On or about March 18, 1996, FLWAC transferred the proceeding to the Division of Administrative Hearings.

Prior to the hearing, Grand Dunes, Ltd., and KPM, Ltd., Company (jointly, the Developers), filed three motions: a Motion to Dismiss and to Strike, a Motion for Attorneys Fees, and a Motion for Official Recognition. The undersigned granted the Motion for Official Recognition, but postponed ruling on the other two motions pending entry of the Recommended Order.

Final hearing commenced on October 15, 1996, and with the exception of certain stipulated items that the parties agreed could be late-filed, the hearing was completed in a single day.

At the final hearing, the parties stipulated to the admission of Joint Exhibits 1 through 7. The Developers offered the testimony of Jackson Sullivan, Shirl Williams, and David Muntean, Jr. Muntean was accepted as an expert in the field of transportation engineering. In addition, Respondents' Exhibits 1 through 3 were admitted into evidence. The Association called no witnesses, but offered into evidence Petitioner's Exhibits 1 through 4, all of which were admitted. Pursuant to stipulation, Developers submitted the depositions of Suzanne Harris and Tom Beck into the record subsequent to the hearing.

A transcript of the final hearing was filed with the Division of Administrative Hearings on October 31, 1996.

Based upon the stipulation of the parties and the evidence admitted at hearing, the following findings of fact are determined.

FINDINGS OF FACT

Background

1. The Association, a Florida condominium association, is the owner of property developed pursuant to a development of regional impact (DRI) order, Walton County Resolution Number 82-12 (Original D.O.), issued by the County on June 8, 1982. The Original D.O. stated that it would remain in effect for ten years or until development was completed, whichever occurred first. It also stated that, upon application of the developer, the duration of the development order could be extended by the County.

   
   

2. The Original D.O. authorized the construction of a six-phase condominium development, to consist of 476 residential units and associated recreational amenities. Phases I and II of the proposed six phase development were completed in 1984 and consist of 175 residential (both ownership and rental) units with associated amenities. Phase I and II consists of one building ranging, in a staircase fashion, from nineteen stories to three

   stories, with the lower portion of the building being located closest to the beach. This building is located on property now owned by the Association.

   
   

3. In 1987, before any construction on the remaining four phases began, the original developer lost its interest in the undeveloped property through foreclosure. The Respondent, KPM, Ltd. Company (KPM), which is a Florida limited liability company, acquired title to the undeveloped property in March 1992.

   
   

4. On May 25, 1992, in response to a request from KPM, the County voted to extend the termination date of the Original D.O. However, the Florida Department of Community Affairs subsequently informed the County and KPM that, in order to effect such an extension, the developer would be required to file a formal notice of proposed change and undergo further review pursuant to chapter 380, Florida Statutes.

   
   

5. In September 1992, KPM filed a notice of proposed change asking the County to revive the Original D.O. KPM subsequently amended its notice to request a reduction in the number of units to be included in Phase III.

   
   

6. In January 1993, the County approved KPM's proposed changes, revived the Original D.O., and extended the duration of the development order to January 1, 1999. This approval was formalized in Walton County Resolution Number 93-2 (the 1993 Amendment) and included the proviso that KPM submit an updated traffic analysis before Phases IV through V could be constructed.

   
   

7. The Association filed a Section 380.07 appeal of the 1993 Amendment (EBOAI) and, in that appeal, specifically challenged the County's authority to revive the Original D.O. Following a formal administrative hearing before the Division of Administrative hearing before the Division of Administrative Hearings, FLWAC entered a final order dismissing EBOA's appeal of the 1993 Amendment on October 24, 1995. The FLWAC final order is presently pending on appeal before the First District Court of Appeal. Neither FLWAC nor the court have entered an order staying the effectiveness of the final order.

   
   

8. In April, 1993, the County adopted the 1993 Comp Plan.

   
   

9. KPM submitted a second notice of proposed change in January 1995, requesting certain changes in the phasing of the project. Included with the materials submitted to the County was the updated traffic analysis required by the county as a precondition to the approval of future phases III and IV to 71 and 124, respectively. The number of units included in Phase V was reduced to

   86 and Phase VI was deleted altogether. The net effect was that the total number of units to be included in the undeveloped phases of the project remained at 281.

   
   

10. The Association filed a FLWAC appeal challenging the April 1995 Amendment. Since the April 1995 Amendment is pending on appeal to FLWAC, it is not yet effective. The Association also brought two separate suits challenging the April 1995 Amendment in circuit court, one under Section 163.3215, Florida Statues, and the other under common law certiorari. All three actions have been abated and remain pending.

    
    

11. In June 1995, KPM transferred its interest in the undeveloped property to the Respondent, Grand Dunes, Ltd. (Grand Dunes). Grand Dunes is a limited partnership, of which KPM is a limited partner. In addition, KPM retains the

    right to reacquire the undeveloped property should Grand Dunes decide against developing it.

    
    

12. On or about October 5, 1995, the Developers jointly filed another notice of proposed change, through which they sought authorization to increase the number of units in Phase III to 89, decrease the number in Phase IV to 89, and delete Phases V and VI altogether. The net effect of the proposed change is a reduction in the total number of units in the undeveloped phases from 281 to

178. The December 1995 Amendment, which is the subject of this proceeding, reflects the County's approval of these proposed changes.

Quasi-judicial Proceedings

1. The Association asserts that the County's December 12, 1995, hearing (the County hearing) was deficient in two respects: 1/ 1) the transportation report appended to the notice of proposed change was not competent substantial evidence; and 2) the Association was not afforded appropriate procedural rights.

   
   

   The Transportation Report

   
   

2. The transportation analysis submitted by the Developers as part of their notice of proposed change was dated October 7, 1994, and was identical to the report submitted in support of the April 1995 Amendment. No further updated transportation information was provided to the County by either the Developers or the Association prior to or during the County hearing.

   
   

3. The author of that report, David Muntean, is an expert in transportation engineering. Muntean explained at final hearing that the purpose of the analysis reflected in the report was to determine whether the development changes being considered by KPM in the fall of 1994--ultimately embodied in the April 1995 Amendment--would have a significant impact on area roadways.

   
   

4. Two specific issues are addressed in making this determination: 1) at build-out (1998), whether traffic generated by the proposed development, considered together with the already built Phases I and II and all other traffic on an area roadway, will result in traffic volumes that exceed the traffic capacity recommended for the roadway (i.e. cause a degradation in the level of service); and 2) at build-out, whether the proposed development, together with Phases I and II, will generate five (5) percent or more of the traffic volume recommended for a roadway.

   
   

5. In order to determine whether there may be a degradation in the level of service, Muntean made a projection of the volume of traffic that would be generated by sources other than the proposed development (the background traffic) in 1998. He accomplished this by extrapolating between the background traffic reflected in the latest Department of Transportation traffic figures then available (1993) and the projected traffic volume for the year 2015, as calculated in the Fort Walton Beach Urban Area Transportation Update. Since Phase I and II of the Original D.O.-- the Association's buildings-- were completed back in 1984, traffic generated by those phases was included in the calculation of background traffic.

   
   

6. Muntean then projected the number of trips that would be generated by the proposed development itself, using data supplied by the Institute of Transportation Engineers (ITE). This source provides a formula for calculating projected numbers of vehicular trips based upon the type of development being

   proposed. Once a raw figure was calculated using the ITE formula, certain adjustment factors were applied. These included adjustments for household size and for internal capture. Internal capture represents the number of trips that might otherwise be generated by a project if not for amenities available within the project itself that reduce the number of vehicular trips taken off the project premises. The adjustment factor used for internal capture was conservative, in order to ensure that the number of trips generated by the project would not be underestimated.

   
   

7. In calculating the number of trips projected to be generated by the project, Muntean included not only those trips that would originate from the proposed new development, but also those trips that could be expected to originate from the already developed Phases I and II. Since the traffic from those completed phases was also included in the calculation of projected background traffic, Muntean's analysis double counts the Phases I and II traffic. The result is another overestimation of the traffic impacts of the project.

   
   

8. Based upon a total development of 456 units, the traffic report established that there are projected to be two roadway segments which will operate below their recommended level of service at build-out. However, the trips generated by a 456 unit development was projected to account for less than five percent of the assigned level of service. (i.e. the maximum recommended traffic volume).

   
   

9. Similarly, the report projects that, at build-out, trips generated by a 456 unit development would account for more than five percent of the maximum recommended traffic volume for two roadway segments. Those two roadways, however, will continue to operate well within their assigned levels of service.

   
   

10. While the initial report projects the traffic impacts of a 456 unit development, the development approved by the December 1995 Amendment will have fewer total units--only 353. (The 175 already constructed units owned by the Association and 178 to be built by the Developers).

    
    

11. The Association offered no evidence suggesting that the conclusions reflected in the initial traffic report were faulty or inapplicable to the development at hand. Nor did the Association offer any reports or analysis of its own. While the projections reflected in the report may not predict 1998 traffic with absolute accuracy, it reflects a best estimate of the traffic impacts of the development. Accordingly, the initial traffic report constitutes competent substantial evidence.

    
    

12. Absent any evidence to the contrary, the initial report also supplies a sufficient evidentiary basis on which to make a finding regarding traffic impacts. However, the Developers provided further support by commissioning Muntean to prepare a second traffic report, based upon the most up-to-date traffic information. Muntean used basically the same methodology utilized for the previous report. 2/ However, in the second report, Muntean did decrease the total number of units being analyzed for traffic impacts to reflect the 353 that the County actually approved during the County hearing.

    
    

13. The conclusions reflected in the second report do not deviate significantly from those reported in the first. At build-out, three roadway segments are projected to operate below their assigned levels of service, but, in each case, the traffic from the 353 unit development will account for less than five percent of the maximum capacity allowable under the assigned level of

    service. On one other roadway segment, traffic from the total project is projected to account for more than five percent of the maximum allowable volume for the roadway's assigned level of service, but that roadway will continue to operate well within its assigned level of service, even with the build-out development's traffic.

    
    

14. The evidence presented by the Developers establishes that the proposed development, even when considered together with the already constructed phases now owned by the Association, will not significantly impact any area roadway. Consequently, the County's determination, that the proposed development does not constitute a substantial deviation, is supported by competent substantial evidence.

    
    

    Procedural Opportunities

    
    

15. The County hearing was preceded by notice published in a local newspaper on November 16, 1995. That notice clearly identifies the date and time of the hearing regarding the Developers' proposed changes. The Association has not alleged that it failed to receive said notice.

    
    

16. As is the practice of the County for all agenda items, the agenda indicated that ten minutes were set aside for consideration of the Developers' proposed changes. However, the transcript of that hearing indicates that both the Developers and the Association were afforded as much time as they desired to make arguments or present evidence.

    
    

17. Both the Association and the Developers were represented at the County hearing by their attorneys, but neither offered any live testimony, even though the transcript clearly establishes that both the Association and the Developers were afforded that opportunity. Counsel for the Association did have one exhibit admitted into the record.

    
    

18. In addition, the only documentary evidence admitted into the record consisted of the documents filed as part of the notice of proposed change itself, supplements to the notice submitted by the Developer prior to the County hearing, the reports and comments of regulatory agencies, and the general warranty deed reflecting transfer of the property from KPM to Grand Dunes.

    
    

19. The record is devoid of any evidence establishing that the Association requested either the Developers or the County to make witnesses available at the County hearing for cross-examination. Nor does the record include any evidence that, prior to the County hearing, the Association requested that it be made a party to the proceeding.

    
    

20. There can be no question that, even if all appropriate procedural rights were not already offered to the Association at the County hearing, the present proceeding provided ample opportunity for the Association to offer evidence, either in the form of documents or testimony, and to cross-examine the Developers' witnesses. Notably, the exhibits entered into the record before the County, were admitted as joint exhibits in this proceeding, without any limitation as to their weight or relevance.

    
    

    Revival of the Original D. O.

    
    

21. Even the closest scrutiny of the December 1995 Amendment reveals the complete absence of any provision extending the termination date of the Original

    D.O. In essence, the Association attempts, through this proceeding, to obtain

    review of action taken by the County in January, 1993, while stipulating that the County revived the Original D.O. in January 1993. Since the Original D.O. had already been revived, approval of the December 1995 Amendment did not require the County to revive anything.

    
    

    Vesting and Consistency with the Local Comprehensive Plan

    
    

22. The development approved by the December 1995 Amendment will include eighteen stories of living space, with two stories of parking underneath. The resulting density will exceed twelve units per acre. The December 1995 Amendment expressly states that the proposed development is not subject to the height and density requirements of the 1993 Walton County Local Comprehensive Plan (the 1993 Comp Plan).

    
    

23. The County has consistently treated DRI developments as vested from compliance with the 1993 Comp Plan, even when there has been a change in ownership. This position has been endorsed by the Department of Community Affairs. When the 1993 Comp Plan was being drafted, the County staff specifically intended that the height and density limitations in that plan not apply to already approved DRI developments. Approved DRIs were seen as sources of tax revenue that would alleviate losses attributable to the development restrictions imposed by the 1993 Comp Plan.

    
    

24. The Department of Community Affairs has taken the position, and has consistently advised local governments, that, if a DRI development order is amended to reflect a decrease in the intensity of the project -- a decrease in the number of units, for example -- the development would not lose its statutory vesting.

    
    

    The Association's Purpose for Commencing This Proceeding

    
    

25. The association's president repeatedly stated in her deposition that the Association's membership intend to do everything that they can to prevent the revival of the Original D.O. and to ensure that, whatever the Developers build, it is consistent with the 1993 Comp Plan. In addition to the present proceeding, the Association has also initiated six other legal proceedings challenging development proposed for the Developers property, Section 380.07, Florida Statutes appeals of both the 1993 and the April 1995 Amendments, two actions for certiorari challenging both of the April and the December 1995 Amendments, and two actions under Section 163.2115, Florida Statutes, challenging both of the 1995 Amendments.

    
    

    CONCLUSIONS OF LAW

    
    

26. This proceeding is an administrative appeal brought under the authority of Section 380.07, Florida Statutes. The petition initiating the proceeding was timely filed.

    
    

27. The Developers and County have entered into a stipulation as to the Association's standing, but specifically limit that stipulation to this proceeding.

    
    

28. The parties further stipulated that the provisions of sections 120.569 and 120.57(1), Florida Statutes (1996 Supp.), which took effect on October 1, 1996, are applicable to this proceeding.

    Quasi-Judicial Hearing

    
    

29. The Association was not denied any procedural right during the County hearing. In one of the seminal cases on the procedural requirements for quasi- judicial hearings. Jennings v. Dade County, 589 So. 1337 (Fla. 3d DCA 1991), the Court stated:

    
    

    [T]he quality of due process required in a quasi-judicial hearing is not the same as that to which a party to full judicial hearing is entitled Quasi-judicial

    proceedings are not controlled by strict rules of evidence and procedure . . . .

    Nonetheless, certain standards of basis fairness must be adhered to in order to afford due process Consequently,

    a quasi-judicial decision based upon the record is not conclusive if minimal standards of due process are denied. . . .

    A quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard. In quasi- judicial zoning proceedings, the parties must be able to present evidence, cross- examine witnesses, and be informed of all the facts upon which the commission acts . .

    
    

    Jennings, 589 So. 2d at 1340 [citations omitted; emphasis supplied].

    
    

30. The Florida Legislature's recently adopted amendments to Section 286.0115, Florida Statutes (1996 Supp.), offer instruction regarding the scope of these procedural requirements. Section 286.0115(2) describes the provisions that must be included in any local government enactment establishing the procedures for quasi-judicial hearings on land use matter. Subsection (2)(b) provides that:

    
    

    [i]n a quasi-judicial proceeding on local government land use matters, a person who appears before the decisionmaking body who is not a party or party intervenor shall be allowed to testify before the decisionmaking body, subject to control by the decision- making body, and may be requested to respond to questions from the decisonmaking body, but need not be sworn as a witness, is not required to be subject to cross-examination, and is not required to be qualified as an expert witness. The decisionmaking body shall assign weight and credibility to such testimony as it deems appropriate. A party or party-intervenor in a quasi-judicial proceeding on local government land use matters, upon request by another party or

    party-intervenor, shall be sworn as a witness, shall be subject to cross-examination by

    other parties or party-intervenors, and shall

    be required to be qualified as an expert witness, as appropriate.

    
    

    Section 286.0115(2)(b), Florida Statutes (1996 Supp.) [emphasis supplied]. While this provision did not become effective until well after the County hearing, it clearly codifies the standard established in Jennings for the procedural rights to be accorded parties and provides guidance regarding the procedures applicable to non-parties.

    
    

31. The Association never sought, not was it granted, party status before the County. Permitted to present testimony before the County, the Association chose instead to offer only the argument of its counsel. It was also permitted to offer a document into the record. Consequently, as to the Association -- a non-party -- all necessary procedural requirements were fulfilled at the County hearing.

    
    

32. However, even if the County hearing alone did not comport with all of the requirements for a quasi-judicial hearing, the hearing in this proceeding cures any procedural deficiency. While labelled as "an appeal," Section 380.07, Florida Statutes proceedings are actually de novo, evidentiary hearings, providing parties with the opportunity to present evidence and testimony, to make arguments, and to cross-examine witnesses. Young v. Department of Community Affairs, 625 So. 2d 831, 833 (Fla. 1993).

    
    

    Thus, although section 380.07(2) provides for an 'appeal' of a development order in any area of critical state concern or for any development of regional impact, this term must be interpreted in its 'broadest, non-technical sense . . . to mean merely an application to a higher authority.'

    
    

    Id. (omissions in original; quoting Transgulf Pipeline Co. v. Board of County Comm'rs, 438 So. 2d 876, 878 (Fla. 1st DCA 1983)).

    
    

33. As is expressly provided in Section 380.07(4) (1996 Supp.), a Section 380.07, Florida Statutes appeal may be submitted on the record made before the local government. In particular, "where the hearing before the local government is full and complete, the record of the local government proceedings might be the only evidence that is necessary." Transgulf Pipeline, 438 So. 2d at 879. However, where the local government hearing did not constitute a full-blown evidentiary hearing -- including the giving of testimony under oath and the opportunity to cross-examine witnesses -- the administrative appeal provides parties with the opportunity for such "full and complete" hearing. See Id, (where adequate opportunity for cross-examination was not afforded during the hearing before the county commission, the Section 380.07, Florida Statutes hearing "would be a full evidentiary hearing and not submitted 'on the record'"); see also General Dev Corp. v. Florida Land and Water Adjudicatory Comm'n, 368 So. 2d 1323, 1326 (Fla. 1st DCA 1979) (where testimony given at hearing was not under oath and there was no opportunity afforded for cross- examination, hearing officer correctly concluded that the Section 380.07, Florida Statutes hearing was to be conducted as a full evidentiary hearing). In essence, Section 380.07, Florida Statutes, establishes the administrative appeal proceeding as the forum in which parties are guaranteed a "full and complete" --

    i.e. quasi-judicial -- hearing on developments of regional impact.

34. A development of regional impact development order, once appealed under Section 380.07, Florida Statutes, does not become effective until and unless FLWAC enters a final order approving the development order. The purpose of the Section 380.07, Florida Statutes appeal is to formulate final agency action, which agency action is then subject to judicial review by a district court of appeal. See Fairfield Communities v. Florida Land and Water Adjudicatory Comm'n, 522 So. 2d 1012, 1014 (Fla. 1st DCA 1988).

    
    

35. The DRI process is a creation of statute. While it does not supersede traditional local development approvals (Friends of the Everglades, Inc. v. Board of County Commissioners, 456 So. 2d 904, 908 (Fla. 1st DCA 1984)), the scope of a local governments' inquiry in a DRI proceeding is limited to those criteria delineated in Section 380.06(14), Florida Statutes (1996 Supp.).

    
    

    [I]n considering whether the development shall be approved, denied, or approved subject to conditions, restrictions, or limitations, the local government shall consider whether, and the extent to which:

    1. The development unreasonably interferes with the achievement of the objectives of an adopted state land develop- ment plan applicable to the area;

    2. The development is consistent with the local comprehensive plan and the local land development regulations;

    3. The development is consistent with the report and recommendations of the regional planning agency submitted pursuant to subsection (12); and

    4. The development is consistent with the State Comprehensive Plan. In consistency determinations the plan shall be construed and applied in accordance with s. 187.101(3).

       
       

       The legislature's delineation of these factors must be construed to exclude other considerations from the Chapter 380 review process. See PW Ventures, Inc.

       v. Nichols 533 So. 2d 281, 283 (Fla. 1988) (["T]he express mention of one thing implies the inclusion of another"). FLWAC considers the very same factors when deciding -- during a Section 380.07, Florida Statutes appeal -- whether to grant or deny permission for the proposed development. Section 380.07(5), Florida Statutes (1996 Supp.). Consequently, all of the issues that could have been considered by the County also fall within FLWAC's jurisdiction and must be decided based on the record developed at the quasi-judicial hearing provided in this proceeding.

       
       

       Revival of the Original O.D.

       
       

36. Since the December 1995 Amendment does not revive the Original D.O., the Association may not challenge the County's revival authority through an appeal of this development order. The December 1995 Amendment merely restates the termination date established by earlier order of the County, an order that was challenged by the Association in a prior Section 380.07, Florida Statutes appeal. See Edgewater Beach Owners Association, Inc., v. Board of County Commissioners of Walton County and KPM, Ltd., 18 F.A.L.R. 75 (FLWAC 1995)

37. Section 380.07(3), Florida Statutes (1996 Supp.), states, in relevant part, that:

    
    

    [t]he filing of the notice of appeal [commencing a section 380.07 appeal] shall stay the effectiveness of the [DRI development] order . . . until after the completion of the appeal process.

    
    

    By commencing EBOA I, the Association ensured that the effectiveness of the 1993 Amendment, reviving the Original D.O., would be postponed "until completion of the appeal process." However, the EBOA I appeal process was complete before the County adopted the December 1995 Amendment. Therefore, the 1993 revival became effective before the adoption of the December 1995 Amendment.

    
    

38. While FLWAC's final order in EBOA I has been appealed to the First District Court of Appeal, the 1993 Amendment reviving the Original D.O. is fully effective. The "appeal process" referred to in Section 380.07(3) (1996 Supp.), which must be completed before the stay on the DRI order is lifted, cannot be construed to include subsequent judicial appeals taken from FLWAC's final order.

    
    

39. When read in light of Section 380.07(2) -- which also relates to appeals brought under Section 380.07 -- any other construction becomes untenable. "[S]tatutes which relate to the same or to a closely related subject or object are regarded as in pari materia and should be construed together and compared with each other." Smith v. Crawford, 645 So. 513, 522 (Fla. 1st DCA 1994). Section 380.07(2), Florida Statutes relates to the right of regional planning councils to maintain Section 380.07, Florida Statutes actions after a certain date. In relevant part, it states:

    
    

    Any appeal initiated by a regional planning agency on or before March 1, 1993, shall continue until completion of the appeal process and any subsequent appellate review. . . .

    
    

    [Emphasis supplied]. If the phrase "the appeal process" in subsection (2) is interpreted to include both the Section 380.07 appeal, as well as subsequent appellate review by the courts, then the phrase "and any subsequent appellate review" becomes meaningless. "Statutory language is not to be assumed superfluous; a statute must be construed so as to give meaning to all words and phrases contained within that statute." Terrinoni v. Westward Ho!, 418 So. 2d 1143, 1146 (Fla. 1st DCA 1982). The only way to give meaning to the phrase "any subsequent appellate review" is to restrict the earlier phrase, "the appeal process," to the Section 380.07, Florida Statutes appeal itself.

    
    

40. Since Sections 380.07(2) and (4), Florida Statutes are to be read in pari materia, the phrase "the appeal process" must be construed to have the same meaning in both provisions. See Schorb v. Schorb, 547 So. 2d 985, 987 (Fla. 2d DCA 1989).

    
    

41. In addition, the presence of the phrase "and any subsequent appellate review" in Section 380.07(2), Florida Statutes and its absence in Section 380.07(3), (1996 Supp.), must be construed to signal the more limited scope intended by the latter provision. "When the legislature has used a term . . . .

    in one section of the statute but omits it in another section of the same statute, we (the court) will not imply it where it has been excluded." Leisure

    Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 194 (Fla. 1995). Since the Legislature omitted the phrase expressly expanding the duration of regional planning council participation to include subsequent judicial appeals, the omission of such language from subsection (3) must be construed to limit the stay provision to the duration of the Section 380.07, Florida Statutes appeal alone.

    
    

42. Consequently, the County's earlier order extending the termination date of the Original D.O. was already an effective order before the December 1995 Amendment was adopted. In adopting the December 1995 Amendment, the County made no further change to the development order's termination date.

    
    

    Consistency and Vesting

    
    

43. Section 163.3215, Florida Statutes (1995), provides the vehicle by which:

    
    

    [a]ny aggrieved or adversely affected party may maintain an action . . . against any local government to prevent such local government from taking any action on a development order, . . . which materially alters the use or density or intensity of use on particular piece of property that is not consistent with the comprehensive

    plan . . .

    
    

    Section 163.3215(1), Florida Statutes [emphasis supplied]. The statute states further that:

    
    

    [s]uit under this section shall be the sole action available to challenge the consistency of a development order with a comprehensive plan adopted under this part [chapter 163, part II].

    
    

    Section 163.3215(3)(b), Florida Statutes [emphasis supplied]. The County's 1993 Comp Plan was adopted pursuant to Chapter 163, Part II. Therefore, the sole action that can be brought to challenge the consistency of the December 1995 Amendment with the County's comprehensive plan is a suit brought under Section 163.3215, Florida Statutes -- not the Section 380.07, Florida Statutes appeal.

    
    

44. The only exception to this general rule that has been recognized by Florida's courts is a challenge to the local government's denial of a development order. In Parker v. Leon County, 627 So. 2d 476 (Fla. 1993), the Florida Supreme Court permitted an applicant/developer to utilize common law certiorari to bring such a challenge. Examining the specific wording of Section 163.3215, Florida Statutes the court found that:

    
    

    it is particularly significant that sub- section (1) authorizes an aggrieved or adversely affected party to bring an action to prevent a local government from taking action on a development order which materially alters the use or density of use of a piece of property that is not consis- tent with the comprehensive plan. An owner

    whose application has been denied does not seek to prevent action on a development

    order. Moreover, the denial of an application does not alter the use or density of property because the denial order simply preserves the status quo and no further action is possible.

    
    

    Parker, 627 So. 2d at 479 [emphasis in original].

    
    

45. The Association's challenge does not fall within the Parker exception. The Association challenges the adoption of the December 1995 Amendment, not its denial. The Association falls squarely within the class of litigants for whom Section 163.3214, Florida Statutes was designed -- aggrieved or adversely affected persons seeking to prevent a development order from becoming effective. Unlike the developer in Parker, therefore, the Association is precluded from challenging the consistency of the December 1995 Amendment to the County's local comprehensive plan through any other vehicle than a suit brought under Section 163.3215.

    
    

46. Any other conclusion would violate the polestar of statutory construction -- the statutes are to be accorded their plain meaning. See Acosta

    v. Richter, 671 So. 2d 149, 153 (Fla. 1996). The plain meaning of the phrase "sole action available" in subsection (3)(b) of Section 163.3214, Florida Statutes is that no other remedy is available. Consequently, the Association may not raise consistency in the present proceeding.

    
    

47. Nor can the Association prevail on the issue of vesting. Specifically, the Association attempts to challenge the County's determination that the proposed development is vested from complying with the 1993 Comp Plan,

    i.e. that the development need not be consistent with that plan. The Association's challenge to the determination of vesting is nothing more than a necessary precedent to its consistency challenge.

    
    

    The Development is Vested

    
    

48. Even if vesting were not an issue entirely subordinate to consistency, Section 163.3167(8), Florida Statutes (1996 Supp.), establishes that the Developers are vested as a matter of law. Section 163.3167(8) states that:

    
    

    [n]othing in this act [chapter 163, Part II, the Local Comprehensive Planning and Land Development Regulation Act] shall limit or modify the rights of any person to complete any development that has been authorized as a development of regional impact pursuant to chapter 380 or who has been issued a final local development order and development has commenced and is continuing in good faith.

    
    

    [Emphasis supplied]. It is undisputed that the Original D.O authorized a development of regional impact and was issued pursuant to Chapter 380, Florida Statutes. Consequently, the 1993 Comp Plan under the authority of Chapter 163, Part II, cannot "limit or modify the rights" of the Developers to complete their development.

    
    

49. Developments of regional impact are also vested by Walton County Ordinance 93-4. The ordinance states:

    The right to develop or to continue to develop property shall be found to exist if:

    1. A valid and unexpired final development order was issued by the County prior to the date of the adoption of this ordinance, and development has been commenced and is continuing in good faith; or

    2. the development has been authorized as a development of regional impact by a final development order issued pursuant to Chapter 380, Florida Statutes.

    
    

    Ordinance 93-4, Section IV.A.2 [emphasis supplied]. The ordinance further provides that:

    
    

    [p]ersons granted a final development order vested under the provisions of this ordinance shall be vested to complete their development in accordance with the terms of their develop- ment orders as approved in writing or shown

    on the accompanying plans, without having to comply with the consistency and concurrency requirements of the Comprehensive Plan.

    
    

    Id. at Section IV.A.3.b [emphasis supplied]. Clearly, the Developers' development of regional impact is vested under both section 163.3167(8), Florida Statutes and Walton County Ordinance 93-4 and, as a consequence, need not be consistent with the County's 1993 Comp Plan.

    
    

    Motion for Attorneys' Fees

50. Section 120.595, Florida Statutes (1996 Supp.), provides that: [i]n proceedings pursuant to s. 120.57(1),

    and upon motion, the administrative law judge shall determine whether any party parti- cipated in the proceeding for an improper purpose as defined by this subsection and

    s. 120.569(2)(c).

    
    

    Section 120.595(1)(c), Florida Statutes (1996 Supp.) As previously stated, the Developers have filed a Motion for Attorneys' Fees.

51. "Improper purpose" is statutorily defined to mean: participation in a proceeding pursuant to

s. 120.57(1) primarily to harass or to cause

unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity.

Section 120.595(1)(e)1, Florida Statutes (1996 Supp.) The totality of the evidence, inclusive of the replication in this case of the issues previously litigated and pending appellate resolution following the October 24, 1995 FLWAC Final Order, fails to establish at this time that the Association participated

in this proceeding for a frivolous purpose, to needlessly increase the Developers' costs or to delay the Developers' project. The Developers' Motion for Costs and Attorneys' Fees is therefore, denied.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:

That the Florida Land and Water Adjudicatory Commission enter a final order approving the development proposed by the Developers and dismissing the Association's appeal.

DONE and ENTERED this 11th day of December, 1996, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1996.

ENDNOTES

1/ The Association originally identified a third deficiency, that the County relied upon materials extraneous to the record in approving the December 1995 Amendment. However, in their delineation of those factual issues that remain for determination, the parties did not include any issue that can be read to relate to this initial allegation by the Association, nor was any evidence suggesting such a conclusion offered at final hearing. Consequently, that issue is deemed to have been abandoned.

2/ The only identified difference in methodology relates to the manner by which yearly increases in background traffic were projected. In the earlier analysis, Muntean used an exponential interpolation, while in the latter he used a linear interpolation. The linear method, which simply projects a straight "line" of growth between present background traffic and the projected year 2015 traffic, reflects more of a worst-case scenario than does the exponential method.

COPIES FURNISHED:

David A. Theriaque, Esquire 909 East Park Avenue Tallahassee, Florida 32301

George Ralph Miller, Esquire Post Office Box 687

DeFuniak Springs, Florida 32433

Martha Harrell Chumbler, Esquire Nancy G. Linnan, Esquire

Post Office Drawer 190 Tallahassee, Florida 32302

Daniel F. Kurmel, Exec Director West Florida Regional

Planning Council Post Office Box 486

Pensacola, Florida 32593

Stephanie Gehres, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Richard H. Powell, Esquire Powell and Strom

Post Office Box 2167

Fort Walton Beach, Florida 32548

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

Tallahassee, Florida 32399-0001

Robert B. Bradley, Secretary Florida Land and Water

Adjudicatory Commission The Capitol, Suite 1601

Tallahassee, Florida 32399-0001

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001725DRI

Orders for Case No: 96-001725DRI