STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS,

Petitioner,

vs.

MONROE COUNTY,

Respondent,

and

JAMES C. FOWLER, CHARLES R. FOWLER, NIKI LESKO, and LORAN F. VAN VLEET,

Intervenors.

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) Case No. 98-0792GM

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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). Intervenors waived their right to respond to the Renewed Motion, although they have consistently opposed dismissal and it is assumed they oppose the Renewed Motion. See page 5, infra. Intervenors, Niki Lesko and Loran F. Van Vleet, executed a settlement agreement with Islamorada, Village of Islands (Village) and the Department. (The Village is not a party in this proceeding.)

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.

Background

The Intervenors own four lots located in the Stratton Subdivision, within the Village, Monroe County, Florida. (The Fowlers own 1 Lot and Lesko and Van Vleet own 3 Lots.) See Intervenors' Unopposed Petition to Intervene. In or around 1997, the Intervenors requested the Monroe County Board of Commissioners to approve a Future Land Use Map (FLUM) amendment to the Monroe County Year 2010 Comprehensive Plan. Intervenors requested a change to the future land use designation of their properties from Residential Medium to Mixed Use/Commercial.

The Intervenors' application to amend the FLUM was approved by the Monroe County Board of Commissioners on November 12, 1997, by Ordinance No. 043-1997.

On or about January 27, 1998, the Department published its Notice of Intent to find, among other things, that portion of Monroe County's Comprehensive Plan Amendment 97-2, involving Monroe County Ordinance No. 043-1997, not in compliance. (The property affected by Ordinance No. 039-1997, which is part of Plan Amendment 97-2, is not at issue here.)

On or about February 12, 1998, the Department, pursuant to Section 163.3184(10), Florida Statutes, filed a Petition against Monroe County requesting, in part, that Plan Amendment 97-2 be found not in compliance with applicable provisions of Chapter 163, Part II, Florida Statutes.

On February 23, 1998, Intervenors filed an unopposed Petition to Intervene which was granted.

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:

1. TRANSITIONAL COMPREHENSIVE PLAN AND LAND DEVELOPMENT REGULATIONS. --

   
   

   1. 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. . . .

      
      

   2. 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.

      
      

   3. 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.

During the course of this administrative proceeding, this case has been set for final hearing, continued and placed in abeyance, and recently reset for final hearing to commence on February 19-20, 2002. (This case has been consolidated, for the purpose of final hearing only, with the consolidated cases of

Department of Community Affairs vs. Monroe County and Paul Bates, DOAH Case No. 97-2967GM and Paul Bates vs. Department of

Community Affairs, DOAH Case No. 98-1920GM. A separate Recommended Order of Dismissal has been issued herewith in these cases. In these consolidated cases, Paul Bates opposed a similar Renewed Motion.)1

On June 2, 1998, the Department filed a Suggestion of Mootness and Motion to Relinquish Jurisdiction, etc. Material here, the Department argued that the case was moot because Monroe County Ordinance No. 043-1997, which approved Plan Amendment 97-2, "did not and cannot become effective as [Ordinance No. 043-1997] relate[s] to any area within the jurisdiction of the Village, as the County's jurisdiction over the lands within the jurisdiction of the Village ceased to exist upon the effective date of the existence of the Village." (The Department also requested that the Village be added as a party, which was denied without prejudice. The Village declined to participate as a party.)

Administrative Law Judge Larry J. Sartin denied the Department's Motion in material part. In particular, Judge Sartin 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, Sept. 30, 1998, page 2.

The case continued in abeyance until the Department filed a Motion for Entry of a Recommended Order of Dismissal on September 6, 2000. The Department essentially argued that Ordinance No. 043-1997, which is part of Plan Amendment 97-2, 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.

Intervenors argued that if the 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." See Response of Paul Bates, DOAH Case Nos. 97-2967 and 98-1920GM, page 6. This is the same conclusion reached by Judge Sartin in his prior Order of September 30, 1998. The Department's Motion was denied in light of Judge Sartin's Order and the lack of any intervening changed

circumstances. The case was 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. Intervenors 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 Village's 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 12, 2001, the Department issued a Final Order dismissing the proceeding.

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 the Intervenors. Section 163.3194(1)(a), Florida Statutes.2 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 Village's adoption of its Comprehensive Plan, as amended, and Final Order approval by the Department. (The Intervenors do not suggest they have any vested rights applicable here. See generally Section 163.3167(8), Florida Statutes.) As a result, the Intervenors no longer have a

substantial interest that 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 recommended that the Department of Community Affairs enter a final order of dismissal in Case No. 98-0792GM. 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.

ENDNOTES

1/ Monroe County has consistently advised that it "will not participate or appear as a party in this matter "

2/ 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.

Docket for Case No: 98-000792GM

Orders for Case No: 98-000792GM