STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
vs.
MONROE COUNTY,
Respondent,
and
PAUL BATES,
Intervenor.
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) Case No. 97-2967GM
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PAUL BATES,
Petitioner,
vs.
DEPARTMENT OF COMMUNITY AFFAIRS,
Respondent.
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) Case No. 98-1920GM
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RECOMMENDED ORDER OF DISMISSAL
This cause came before the undersigned for consideration of the Department of Community Affair's (Department) Renewed Motion for Entry of a Recommended Order of Dismissal and to Relinquish Jurisdiction (Renewed Motion). Paul Bates (Bates) opposes the Renewed Motion. Monroe County has consistently advised that
it "will not participate or appear as a party in this
matter . . .." Islamorada, Village of Islands (Village) is not a party in this proceeding. These cases have been consolidated with a legally related case, Department of Community Affairs v. Monroe County and James C. Fowler, et al., Case No. 98-0792GM, solely for the purpose of conducting the final hearing scheduled for February 19 and 20, 2002.
Based upon the following discussion, the Department's Renewed Motion is granted and jurisdiction is relinquished to the Department for consideration of this Recommended Order of Dismissal. A similar Recommended Order of Dismissal has been entered herewith in Department of Community Affairs v. Monroe County and James C. Fowler, et al., Case No. 98-0792GM.
Background
Case No. 97-2967GM. As alleged in Bates' Unopposed Motion to Intervene in Case No. 97-2967GM, Bates is in possession of property pursuant to a contract for purchase, and has a beneficial interest in property located within the jurisdiction of the Village, Monroe County, Florida. In or around 1997, Bates applied with Monroe County to amend the Monroe County Future Land Use Map (FLUM), of the Monroe County Comprehensive Plan, from Residential Low to Mixed Use/Commercial.
Bates' application to amend the FLUM was approved by the Monroe County Board of Commissioners on April 16, 1997, by Ordinance No. 013-1997. (On April 16, 1997, Monroe County
adopted Comprehensive Plan Amendment 97-1 by Ordinance No. 013- 1997.)
On June 27, 1997, the Department, pursuant to Section 163.3184(10), Florida Statutes, filed a Petition with the Division of Administrative Hearings against Monroe County requesting, that Comprehensive Plan Amendment 97-1, adopted by Ordinance No. 013-1997, be found not in compliance with applicable provisions of Chapter 163, Part II, Florida Statutes.
On September 18, 1997, Bates filed an Unopposed Motion to Intervene which was granted.
Case No. 98-1920GM. In light of his property interest described above, Bates applied with Monroe County for a map amendment to rezone the property from Suburban Residential to Suburban Commercial. In April 1997, Monroe County rendered to the Department Ordinance Nos. 063-1996 and 064-1996, which were adopted by Monroe County on November 12, 1996. Ordinance
No. 064-1996 changed the land use designation (zoning) on the property requested by Bates.
On June 11, 1997, the Department filed a Final Order, pursuant to Section 380.05(6), Florida Statutes (Supp. 1996), rejecting Monroe County's Ordinance No. 064-1996 and approving Ordinance No. 063-1996. (The rezonings were adopted prior to the adoption of Monroe County Comprehensive Plan Amendment 97-1, which is the subject of Case No. 97-2967GM referred to above.)
On August 18, 1997, Bates filed a Petition with the Department challenging the portion of the Department's Final Order concluding that Ordinance No. 64-1996 was inconsistent with Section 380.0552(7), Florida Statutes. The Petition was forwarded to the Division and assigned Case No. 98-1920GM and consolidated with Case No. 97-2967GM.
Creation of the Village
In 1997, the Legislature enacted a Special Act, Chapter 97- 348, Laws of Florida, and created the Village in Monroe County, effective December 31, 1997, and operational March 26, 1998.
This Special Act was approved by a referendum vote. Jensen v. Citizens for Village Government, Inc., 710 So. 2d 18 (Fla. 3d DCA 1998).
Among other things, the Legislature provided a "transition schedule" for the Village in Section 9 of Chapter 97-348, page 88, Laws of Florida. In particular, Section 9(6)(a)-(c) provides:
TRANSITIONAL COMPREHENSIVE PLAN AND LAND DEVELOPMENT REGULATIONS. --
Until such time as the village adopts a comprehensive plan, the applicable provisions of the Comprehensive Plan of Monroe County, as the same exists on the day the village commences corporate existence, shall remain in effect as the village's transitional comprehensive plan. However, all planning functions, duties, and authorities shall thereafter be vested in the Village Council of Islamorada which
shall be deemed the local planning council until and unless the council establishes a separate local planning agency. Prior to the adoption of a village comprehensive master plan, any amendment to any zoning as established in the current county land use plan shall only be by an ordinance adopted by the affirmative vote of not less than four members of the council. . . .
All powers and duties of the planning commission, zoning authority, any boards of adjustment, and the County Commission of Monroe County, as set forth in these transitional zoning and land use regulations, shall be vested in the Village Council of Islamorada until such time as the village council delegates all or a portion thereof to another entity.
Subsequent to the commencement of the village's corporate existence, no amendment of the comprehensive plan or land development regulations enacted by the Monroe County Commission shall be deemed as an amendment of the village's transitional comprehensive plan or land development regulations or otherwise take effect within the village's corporate limits unless approved by the village council.
Chapter 97-348, Section 9(6)(a)-(c), pages 89-90, Laws of Florida.
Department's Motions Regarding Case Nos. 97-2967GM and 98-1920GM
During the course of this administrative proceeding, these cases have been set for final hearing, continued and placed in abeyance, and recently reset for final hearing to commence on February 19-20, 2002. (These cases have been consolidated, for the purpose of final hearing only, with the consolidated case of
Department of Community Affairs vs. Monroe County and James C. Fowler, Charles R. Fowler, Niki Lesko, and Loran F. Van Vleet, DOAH Case No. 98-0792GM. A separate Recommended Order of Dismissal has been issued herewith in that case.)
On June 10, 1998, the Department filed a Request for Determination of Mootness and Motion to Relinquish Jurisdiction etc. Material here, the Department argued that the cases were moot because Monroe County Ordinance No. 013-1997, which approved Plan Amendment 97-1, did not take effect pursuant to Section 163.3189(2)(a), Florida Statues, before the creation of the Village. Bates filed a Response and agreed that the Village should be added as a party and further suggested that is was not necessary to consider the issue of mootness if the Village was added as a party. (The Department's request to add the Village as a party was denied without prejudice. The Village declined to participate as a party.)
The Department filed a similar request in Case No. 98- 0792GM and Administrative Law Judge Larry J. Sartin denied the Department's Motion in material part and stated:
[Monroe County] has taken no action to withdraw or repeal Ordinance No. 043-1997. Therefore, even though the amendment does not apply to the Village by its terms, it is possible that the amendment could be adopted by the Village as part of its plan. See Section 9(6)(c), Chapter 97-438 [sic], Laws
of Florida. It would not, therefore, be appropriate to relinquish jurisdiction over Ordinance No. 043-1997.
Order, Case No. 98-0792GM, Sept. 30, 1998, page 2.
Similarly, on July 7, 1998, Judge Sartin denied the Department's Request and stated, in part: "Unless Monroe County withdraws the ordinances which are the subject of these cases, the matter is not moot due to the fact that the ordinances could ultimately be determined to be 'in compliance' and could then be approved by [the Village]." Order, July 7, 1998, page 2.
The consolidated cases continued in abeyance until the Department filed a Motion to Dismiss on July 17, 2000. The Department argued that Ordinance No. 013-1997, which is part of Plan Amendment 97-1, never became effective because no final order had been issued by the Department pursuant to Section 163.3182(2), Florida Statutes, and any change of the comprehensive plan concerning property located in the Village must now be adopted by the Village in conformity with Chapter 163, Part II, Florida Statutes. The Department also argued that the re-zoning of the property never became final due to the pending administrative proceeding. (The Department also filed a Notice of Voluntary Dismissal and Request to Close File in Case No. 97-2967GM.)
Bates filed a Response and argued that if the Monroe County Plan Amendment was found to be in compliance in this
administrative proceeding, pursuant to the transitional provisions of Chapter 97-348, Section 9, Laws of Florida, "the Village will then be able to determine at a public hearing whether to adopt the county's map and future land use amendments as its own." This is essentially what Judge Sartin determined in his prior Orders of June 7, 1998, and September 30, 1998, in Case No. 98-0792GM. The Department filed a Reply.
The Department's Motion was denied in light of Judge Sartin's June 7, 1998, Order and the lack of any intervening changed circumstances. The Department's Motion to Withdraw the Notice of Voluntary Dismissal was granted. The cases were again placed in abeyance at the request of the parties.
On August 14, 2001, the Department filed a Motion for Entry of a Recommended Order of Dismissal and to Relinquish Jurisdiction and raised the same issues argued on prior occasions. Bates opposed the Motion and on September 6, 2001, an Order was entered denying the Department's Motion because no new arguments were made by the Department nor any additional facts presented which warranted a different result.
Disposition of Department's Renewed Motion
On December 14, 2001, the Department filed its Renewed Motion in light of the Department's final approval of the Village's Comprehensive Plan, as amended.
On January 24, 2001, the Village adopted its initial Comprehensive Plan by Ordinance No. 00-09. See Rossignol v.
Islamorada, Village of Islands and Department of Community Affairs, Case No. 01-2409GM (Recommended Order November 16, 2001; Final Order December 6, 2001). Thereafter, the Department published its Notice of Intent to Find the Islamorada Comprehensive Plan not in compliance. The Department filed its Petition with the Division of Administrative Hearings and the case was assigned Case No. 01-1216GM.
On April 26, 2001, the Village adopted Ordinance No. 01-05, which contained remedial amendments. On May 24, 2001, the Department published its Notice of Intent to Find the Comprehensive Plans and Remedial Comprehensive Plan Amendments in compliance.
In light of the adoption of the remedial amendments, the Department filed a Motion to Close File and Relinquish Jurisdiction in Case No. 01-1216GM, which was granted by Administrative Law Judge J. Lawrence Johnston on June 6, 2001. The file was closed and jurisdiction was relinquished to the Department. On June 14, 2001, the Department issued a Final Order dismissing the Department's Petition.
Subsequent to the Department's determination that the Village's Comprehensive Plan was in compliance, a Petition was filed challenging the remedial amendments. The Petition was
filed with the Division and was assigned Case No. 01-2409GM. A final hearing in that case was held on August 15, 2001, before Administrative Law Judge Robert E. Meale. On November 16, 2001, Judge Meale entered his Recommended Order to the Department recommending the dismissal of the challenge and further recommending that the amendments contained in Ordinance No. 01- 05 be determined to be in compliance with Chapter 163, Part II, Florida Statutes. On December 6, 2001, the Department entered its Final Order adopting the Recommended Order in its entirety and dismissed the Petition.
With the issuance of the Final Orders mentioned above, the Village's Comprehensive Plan, as amended, is now effective and binding on the Village and Bates. Section 163.3194(1)(a), Florida Statutes.1 It follows that the Village may not legally use the Comprehensive Plan of Monroe County, and any subsequent amendments, as its transitional comprehensive plan pursuant to Section 9(6)(a) of Chapter 97-348, Laws of Florida. See Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191, 198 (Fla. 4th DCA 2001)("Section 163.3194 requires that all development conform to the approved Comprehensive Plan, and that development orders be consistent with that Plan. The statute is framed as a rule, a command to cities and counties that they must comply with their own Comprehensive Plans after they have been approved by the State.")
Further, any amendments to the Village's Comprehensive Plan, as amended, must be considered and approved pursuant to Sections 163.3187 and 163.3189, Florida Statutes, and not pursuant to the transitional provisions set forth in Chapter 97- 348, Section 9, Laws of Florida, because the transitional period terminated with the adoption of the Village's Comprehensive Plan, as amended, and Final Order approval by the Department. (Bates does not suggest he has any vested rights applicable here. See generally Section 163.3167(8), Florida Statutes.
Bates suggests that if the "map amendments" are approved in this proceeding, he "will have the right to have the subject map amendment relate back to the original denial." Bates Response, Jan. 8, 2002. However, Bates does not cite any authority to support his position.) As a result, Bates no longer has a substantial interest which may be affected under Chapters 120 and 163, Part II, Florida Statutes, justifying the continuation of this administrative proceeding. Hence, the matter is moot and this administrative proceeding should be dismissed. See
generally Montgomery v. Department of Health and Rehabilitative Services, 468 So. 2d 1014, 1016 (Fla. 1st DCA 1985).
Recommendation
Based upon the foregoing, it is hereby recommended that the Department of Community Affairs enter a final order of dismissal in Case Nos. 97-2967GM and 98-1920GM. Accordingly, the final
hearing scheduled for February 19 and 20, 2002, is cancelled and jurisdiction is relinquished to the Department for further proceedings.
DONE AND ENTERED this 9th day of January, 2002, in Tallahassee, Leon County, Florida.
CHARLES A. STAMPELOS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2002.
ENDNOTE
1/ Amendments to comprehensive plans are legislative decisions. Martin County v. Yusem, 690 So. 2d 1288, 1294 (Fla. 1997). As such, absent an exception, the principle of law of Lavernia v.
Department of Professional Regulation, Board of Medicine, 616 So. 2d 53 (Fla. 1st DCA 1993), rev. den., 624 So. 2d 267 (Fla. 1993), should control and the Village's Comprehensive Plan, as amended, should govern future development within the jurisdiction of the Village. See Section 163.3171(1), Florida Statutes; Chapter 97-348, Sections 3 and 4, Laws of Florida.
See also Pinellas County v. City of Gulfport, 458 So. 2d 436, 438 (Fla. 2d DCA 1984).
COPIES FURNISHED:
James T. Hendrick, Esquire Morgan & Hendrick
317 Whitehead Street Post Office Box 1117
Key West, Florida 33041
John R. Herin, Jr., Esquire Weiss, Serota, Helfman,
Pastoriza & Guedes
2665 South Bayshore Drive Suite 420
Miami, Florida 33133
Richard A. Lotspeich, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Andrew M. Tobin, Esquire Post Office Box 620 Tavernier, Florida 33070
Steven M. Seibert, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Cari L. Roth, General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee, Florida 32399-2100
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 of Dismissal. Any exceptions to this Recommended Order of Dismissal should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Feb. 04, 2002 | Final Order of Dismissal filed. |
| Jan. 17, 2002 | Motion to Enter Final Order Approving Zoning and Flum Amendments or in the Alternative for a Formal Administrative Hearing to Require the Department to Comply with Settlement Agreement (filed by P. Bates via facsimile). |
| Jan. 09, 2002 | Recommended Order of Dismissal issued. CASE CLOSED. |
| Jan. 09, 2002 | Recommended Order cover letter identifying hearing record referred to the Agency sent out. |
| Jan. 08, 2002 | Response to Department`s Renewed Motion to Dismiss (filed via facsimile). |
| Dec. 14, 2001 | Department`s Renewed Motion for Entry of a Recommended Order of Dismissal and to Relinquish Jurisdiction filed. |
| Oct. 12, 2001 | Amended Notice of Hearing issued. (hearing set for February 19 and 20, 2002; 9:00 a.m.; Marathon, FL, amended as to Location). |
| Sep. 25, 2001 | Order of Pre-hearing Instructions issued. |
| Sep. 25, 2001 | Notice of Hearing issued (hearing set for February 19 and 20, 2002; 9:00 a.m.; Marathon, FL). |
| Sep. 14, 2001 | Notice of Substitution of Counsel for Department of Community Affairs (filed by). |
| Sep. 14, 2001 | Notice of Avalability (filed by Petitioner via facsimile). |
| Sep. 06, 2001 | Order issued (the parties shall advise within 10 days from the date of this order dates and number of days necessary for final hearing). |
| Sep. 05, 2001 | Intervenor`s Response to Petitioner`s Motion for Entry of Recommended Order of Dismissal and to Relinquish Jurisdiction (filed via facsimile). |
| Aug. 14, 2001 | Department`s Motion for Entry of a Recommended Order of Dismissal and to Relinquish Jurisdiction (filed via facsimile). |
| Jun. 13, 2001 | Order Continuing Case in Abeyance issued (parties to advise status by August 13, 2001). |
| Jun. 12, 2001 | Department`s Status Report and Motion for Continued Abeyance (filed via facsimile). |
| Feb. 22, 2001 | Notice of Substitution of Counsel for Defendant Florida Department of Community Affairs (filed via facsimile). |
| Feb. 05, 2001 | Order Granting Continuance and Placing Case in Abeyance issued (parties to advise status by June 4, 2001). |
| Feb. 02, 2001 | Motion to Continue Hearing and Hold Case in Abeyance (filed via facsimile). |
| Nov. 06, 2000 | Order of Pre-Hearing Instructions issued. |
| Nov. 06, 2000 | Notice of Hearing issued (hearing set for March 6 and 7, 2001, 9:00 a.m., Marathon, Fl.). |
| Oct. 18, 2000 | Notice of Address Change (filed by A. Tobin via facsimile). |
| Oct. 13, 2000 | Order issued. (the Department`s Motion to Dismiss is Denied, the Department`s Motion to Withdraw the Notice of Voluntary Dismisal and Request to Close File is Granted) |
| Oct. 13, 2000 | Status Report (filed by Petitioner via facsimile). |
| Sep. 08, 2000 | Status Report (filed by Petitioner via facsimile). |
| Aug. 31, 2000 | Department`s Notice of Voluntary Dismissal and Request to Close File (filed via facsimile). |
| Jul. 25, 2000 | Department`s Reply (to Motion to Dismiss). (filed via facsimile) |
| Jul. 20, 2000 | Response to Motion to Dismiss and Request for Oral Argument and Notice of Change of Address. (filed by Petitioner via facsimile) |
| Jul. 17, 2000 | Department`s Motion to Dismiss filed. |
| Mar. 23, 2000 | Order Granting Continuance and Requiring Report sent out. (parties to advise status by 09/11/2000) |
| Mar. 10, 2000 | Notice of Substitution of Counsel for Department of Community Affairs (Kirk) filed. |
| Mar. 01, 2000 | (Petitioner) Status Report (filed via facsimile). |
| Mar. 01, 2000 | (Petitioner) Status Report (filed via facsimile). |
| Dec. 07, 1999 | Order Continuing Case in Abeyance sent out. (Parties to advise status by March 1, 2000.) |
| Dec. 02, 1999 | (Petitioner) Status Report filed. |
| Sep. 02, 1999 | Fourth Order Continuing Case in Abeyance sent out. (Parties to advise status by December 1, 1999.) |
| Aug. 30, 1999 | (Petitioner) Status Report filed. |
| Feb. 23, 1999 | Third Order of Abatement sent out. (parties to file status report by 8/30/99) |
| Feb. 08, 1999 | Joint Status Report filed. |
| Feb. 08, 1999 | Joint Status Report filed. |
| Dec. 11, 1998 | Second Order of Abatement sent out. (parties to file status report by 2/8/99) |
| Dec. 01, 1998 | Joint Status Report filed. |
| Oct. 26, 1998 | Order Granting Joint Motion for Abatement sent out. (11/5/98 hearing cancelled; parties to file status report by 12/1/98) |
| Oct. 06, 1998 | Joint Motion for Abatement filed. |
| Aug. 31, 1998 | Third Notice of Hearing sent out. (hearing set for Nov. 5-6, 1998; 9:00am; Marathon) |
| Aug. 31, 1998 | Order Granting Motion for Continuance and Request for Oral Argument sent out. (9/3/98 hearing cancelled) |
| Aug. 05, 1998 | (DCA) Motion for Continuance and Request for Oral Argument on the Same (filed via facsimile). |
| Jul. 14, 1998 | (2) Notice of Service of Answers to Interrogatories filed. |
| Jul. 09, 1998 | Notice of Hearing sent out. (hearing set for Sept. 3-4, 1998; 9:00am; Marathon) |
| Jul. 07, 1998 | Order Denying Request for Determination of Mootness and Motion to Relinquish Jurisdiction; and Denying Motion to Add A Necessary and Indispensable Party sent out. |
| Jun. 19, 1998 | Bates` Response to Motion to Add Necessary Party filed. |
| Jun. 10, 1998 | (Petitioner) Request for Determination of Mootness and Motion to Relinquish Jurisdiction; or in the Alternative, Motion to Add a Necessary and Indispensable Party filed. |
| May 29, 1998 | Order Granting Joint Motion for Continuance sent out. (status report due 6/8/98) |
| May 22, 1998 | (Respondent) Response to Department of Community Affairs First Request for Admissions by Monroe County, Respondent filed. |
| May 15, 1998 | Joint Motion for Continuance filed. |
| May 11, 1998 | Intervenor`s Response to Petitioner`s Request for Admissions filed. |
| May 08, 1998 | Order of Consolidation sent out. (Consolidated cases are: 97-2967GM & 98-1920GM). CONSOLIDATED CASE NO - CN002944 |
| May 06, 1998 | Notice of Service of Intervenors First Set of Interrogatories to Department of Community Affairs filed. |
| Apr. 29, 1998 | Notice of Service of Department of Community Affairs` First Set of Interrogatories to Paul Bates filed. |
| Apr. 29, 1998 | Notice of Service of Department of Community Affairs` First Set of Interrogatories to Monroe County filed. |
| Apr. 29, 1998 | Notice of Service of Department of Community Affairs` First Set of Interrogatories to Monroe County (filed via facsimile). |
| Apr. 13, 1998 | Notice of Substitution of Counsel for Department of Community Affairs filed. |
| Apr. 07, 1998 | Notice of Hearing sent out. (hearing set for June 25-26, 1998; 9:00am; Marathon) |
| Feb. 26, 1998 | Order to Provide Information sent out. (status report due by 3/16/98) |
| Feb. 17, 1998 | (Intervenor) Status Report (filed via facsimile). |
| Nov. 06, 1997 | Second Order of Abeyance sent out. (parties to file status report by 2/16/98) |
| Nov. 05, 1997 | (Petitioner) Status Report (filed via facsimile). |
| Sep. 30, 1997 | Order Granting Unopposed Motion to Intervene sent out. (for Paul Bates) |
| Sep. 18, 1997 | (From A. Tobin) Unopposed Motion to Intervene filed. |
| Jul. 29, 1997 | Order of Abeyance sent out. (parties to file status report by 10/25/97) |
| Jul. 29, 1997 | (Petitioner) Response to Notice of Assignment and Order (filed via facsimile). |
| Jul. 16, 1997 | Notice of Assignment and Order sent out. |
| Jul. 03, 1997 | Statement Of Intent To Find Comprehensive Plan Amendment Not In Compliance (filed via facsimile). |
| Jul. 03, 1997 | Notice Of Intent (filed via facsimile). |
| Jul. 03, 1997 | Notification Card sent out. |
| Jul. 03, 1997 | Petition Of The Department Of Community Affairs (filed via facsimile). |
| Jul. 03, 1997 | Notification Card sent out. |
| Jun. 26, 1997 | (Petitioner) Motion for Continuance and Request for Oral Argument on the Same (filed via facsimile). |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 01, 2002 | Agency Final Order | |
| Jan. 09, 2002 | Recommended Order | Islamorada adoption and Department`s final approval of Comprehensive Plan, as amended, is binding on development within jurisdiction of Islamorada, notwithstanding pending administrative challenge to Monroe County Comprehensive Plan amendment. |
