STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, JAMES VEAL, and )

KERRY M. CULLIGAN, )

)

Petitioners, )

)

vs. ) Case No. 99-2039GM

)

ESCAMBIA COUNTY, )

)

Respondent, )

)

and )

) HOME BUILDERS ASSOCIATION ) OF WEST FLORIDA, INC. and ) SANTA ROSA ISLAND AUTHORITY, )

)

Intervenors. )

)

FINAL ORDER

This matter came before the undersigned on a Motion to Dismiss this proceeding filed by Respondent, Escambia County (County). As a ground, the County contends that the petition challenging certain land development regulations was not timely filed. A response in opposition to the motion has been filed by Petitioner, Department of Community Affairs (DCA). In addition, James Veal and Kerry M. Culligan (Veal and Culligan), who have been realigned as Petitioners rather than Intervenors, have filed a Motion to Strike the County's motion. Oral argument or an evidentiary hearing is not required. Having considered the

papers filed by the parties, the following disposition of the motions is made.

The papers filed herein reflect the following undisputed facts. On October 2, 1997, the County adopted Ordinance No. 97- 51, which adopted certain land development regulations. On

July 1, 1998, Veal and Culligan filed a letter (with numerous attachments) with the County's Administrator ostensibly on behalf of themselves and an entity identified as "Citizens Planning Responsibly" generally contending that the "Land Development [R]egulations [do not] implement the Goals and Objectives of the Comprehensive Plan." Attached to the letter were copies of a lengthy paper styled "Petition for Administrative Hearing of James Veal," which carried the caption of, and sought a formal hearing before, the Division of Administrative Hearings (DOAH) to contest portions of thirteen ordinances, one of which was Ordinance No. 97-51; four pieces of correspondence previously sent by Veal or Culligan to the County in 1997; and a letter sent by Veal to a DCA staff member in 1997.

In their filing, Veal and Culligan pointed out that a "verified petition for a formal adminstrative hearing" was enclosed, and they clearly implied that the purpose of their filing was to place the County on notice that they were seeking a formal hearing before DOAH to contest numerous land development regulations adopted by thirteen separate ordinances, including

Ordinance No. 97-51. The record does not establish whether the "verified petition" was ever filed with DOAH.

By letter dated July 6, 1998, the County Administrator acknowledged receipt of the papers and replied that "[s]ince you have apparently filed for a formal administrative hearing, any discussion or other action will, of necessity, be at that level." Accordingly, except for acknowledging the receipt of the documents by the foregoing letter, the County took no further action on the filing.

On August 3, 1998, Veal and Culligan forwarded their petition to the DCA Secretary and requested that he "review the enclosed petition and recent events in Escambia County to determine if establishing Escambia County as an area of Critical State Concern may be required." They also advised that they were "concerned that the manner the LDC is being adminstered is not consistent with the requirements of the Comprehensive Plan." The letter and petition were received by the DCA on August 10, 1998.

On August 18, 1998, the Secretary responded to the foregoing inquiry and outlined the requirements under Section 163.3213(3), Florida Statutes, for challenging local land development regulations. Specifically, Veal and Culligan were reminded that a land development regulation could only be challenged within twelve months from the date of adoption of the regulation, and that any challenge must be filed with the local government. They were also provided with the name and telephone number of an

agency attorney to assist them if they had any questions. It is fair to infer that the DCA construed the July 1, 1998, filing as not complying with the statute, and to perfect their claim, that Veal and Culligan must file another petition with the County.

Despite this advice, the claimants never filed any other papers with the County.

Petitioners represent without contradiction that they eventually met with DCA legal representatives on October 6, 1998, concerning this matter. No County representatives were present. Presumably at the behest of the DCA, the next day Veal and Culligan filed a letter with the DCA's General Counsel. There is no indication that the letter was served on the County. The letter reads as follow:

We inadvertently styled the petition we submitted to Escambia County and to D.C.A. as a [P]etition for Formal Administrative Hearing. Please accept our petition, which was received by the D.C.A. on August 10, 1998, for an informal hearing in accordance with Chapter 163, Florida Statute[s], under the doctrine of equitable tolling.

By letter dated October 9, 1998, the General Counsel advised Veal and Culligan that because they were not attorneys, were not familiar with Chapter 163, Florida Statutes, and its procedures, and would be prejudiced by a dismissal of their petition, the doctrine of excusable neglect (rather than equitable tolling) applied, and their petition would be deemed filed as of

October 8, 1998.

On February 1, 1999, an agency attorney corresponded with Veal and Culligan and advised without further explanation that "[a]fter careful review," their petition would be assigned a filing date of August 10, 1998, rather than the October 8, 1998, filing date previously assigned in the General Counsel's letter. The letter concluded that given this filing date, their challenge to Ordinance No. 97-51 was not "time barred by the statute."

After an informal hearing on those contested regulations pertaining to Ordinance No. 97-51 was conducted by the DCA in March 1999, it issued a Determination of Consistency of Escambia County Ordinance No. 97-51 on April 15, 1999. That document found certain regulations consistent with the Comprehensive Plan, while others were found to be inconsistent. The case was then forwarded to DOAH in May 1999, and this controversy ensued.

Against this factual backdrop, Section 163.3213(3), Florida Statutes, prescribes the following timelines for challenges by an affected person to a local government's land development regulations:

(3) . . . a substantially affected person, within 12 months after final adoption of the land development regulation, may challenge a land development regulation on the basis that it is inconsistent with the local comprehensive plan. As a condition precedent to the institution of a proceeding pursuant to subsection (4), such affected person shall file a petition with the local government whose land development regulation is the subject of the petition outlining the facts on which the petition is based and the reasons that the substantially affected person considers the land development

regulation to be inconsistent with the local comprehensive plan. The local government receiving the petition shall have 30 days after the receipt of the petition to respond. Thereafter, the substantially affected person may petition the state land planning agency not later than 30 days after the local government has responded or at the expiration of the 30-day period which the local government has to respond.

(Emphasis added)

Unlike some other provisions in Chapter 163, Florida Statutes, the foregoing statute is clear and not susceptible to more than one interpretation. It provides that a challenge to Ordinance No. 97-51 had to be filed with the local government no later than October 1, 1998, or twelve months after the adoption of that ordinance. The statute is clear on this point, and a filing with the DCA or another forum such as DOAH does not suffice. Therefore, unless a proper petition has first been filed with the local government, and it declines to act on the petition within thirty days, the DCA has no authority to entertain a filing under Section 163.3213(3), Florida Statutes, and to treat that filing as one which triggers the review process contemplated by the statute.

As a threshold matter, it is necessary to first determine whether the July 1, 1998, filing with the County constituted a proper "petition" within the meaning of the law. Here, Veal and Culligan filed a letter and attachments with the County on

July 1, 1998. The principal thrust of that filing, however, was to place the County on notice that they were requesting a formal

hearing before DOAH to contest certain regulations contained in thirteen ordinances, twelve of which predated Ordinance No. 97-

51. Specifically, the petition requested "a hearing [before DOAH] to challenge that portions [sic] of the Escambia County Land Development Code" contained in thirteen separate ordinances; it did not cite Section 163.3213(3), Florida Statutes, as its source of authority. Consequently, the County properly construed the filing as something other than a challenge to Ordinance

No. 97-51 under Section 163.3213, Florida Statutes. If this were not so, a local government would be required to speculate as to the nature and purpose of a deficient filing, or to mistakenly undertake a review of the objections when none was legally required. Given these considerations, the filing failed to satisfy the requirements of the law, and it did not trigger the review process contemplated under the statute.

The DCA itself acknowledged as much when its Secretary advised Veal and Culligan by letter dated August 18, 1998, that in order to challenge the regulations adopted by that ordinance, they must follow the dictates of Section 163.3213, Florida Statutes, and file an appropriate petition with the local government. Therefore, to perfect their claim, it was incumbent on Veal and Culligan to refile a proper petition with the County no later than October 1, 1998.

Even though they learned of the statutory requirements more than a month before the time for challenging the ordinance had

expired, and were offered the benefit of agency counsel to assist them, Veal and Culligan did not excercise due diligence, and they failed to take any action until after the time had expired to challenge Ordinance No. 97-51.

On October 6, 1998, or after the twelve months had run, they belatedly met with DCA legal representatives presumably seeking advice on how to cure their failure to timely file a claim. This produced an informal ruling that under the doctrine of excusable neglect, the filing would be considered timely.

In its response to the motion, the DCA incorrectly assumes that the petition was legally sufficient, and it takes the position that the filing is timely under two theories. First, it contends that under the doctrines of excusable neglect and equitable tolling, the filing date of August 10, 1998, should be accepted. For equitable tolling to apply, however, there must be some indication that Veal and Culligan were "misled or lulled into inaction," and thus they failed to timely file their claim. Machules v. Dep't of Admin., 523 So. 2d 1132, 1134 (Fla. 1988).

Here, the claimants were not misled, for it is undisputed that the DCA gave timely and explicit instructions in its letter dated August 18, 1998, on how they could perfect their claim. Further, even though Veal and Culligan received (incorrect) advice from the DCA on October 9, 1998, that their earlier filing was sufficient, reliance on that representation does not invoke the doctrine since it occurred after the October 1, 1998, deadline.

As to excusable neglect, Veal and Culligan clearly failed to exercise due diligence after learning in August that a petition must be filed with the County by October 1, 1998. By failing to take any action until after that deadline had passed, they failed to exercise due diligence and lost their opportunity to avail themselves of this doctrine.

Most importantly, however, these doctrines would appear to be applicable here only if a proper petition had been filed with the County after the October 1, 1998, deadline due to excusable neglect or other equitable circumstances. That is to say, the doctrines are ordinarily invoked when a party makes an untimely filing but claims that its tardiness was due to neglect or other equitable circumstances. In this case, other than the improper filing on July 1, 1998, there is no indication that Veal and Culligan ever filed any subsequent papers with the County.

The DCA also contends that the filing was made in the wrong forum (DOAH), and under the rationale of Alfonso v. Dep't of Envir. Reg., 616 So. 2d 44 (Fla. 1993), the petition should have been transferred to the appropriate venue (the County). In Alphonso, the appellant had erroneously filed a notice of appeal with the appellate court rather than with the clerk of the circuit court as required by the appellate rule. After the appeal was dismissed by the appellate court, the Supreme Court ruled that the appellate court's jurisdiction was invoked by a timely filing of a notice of appeal or a petition for certiorari

in either the lower court that issued the order to be reviewed or the appellate court which would have jurisdiction to review the order, with the date of filing being the date the document was filed in the wrong court. Id. at 47. This principle, however, applies to court appeals which are governed by appellate rules adopted pursuant to Article V, Section 2(a) of the Florida Constitution, and not administrative actions; and the DCA has cited no statutory requirement or relevant decisional law that requires that an administrative agency transfer a misfiled case to the appropriate forum, with the date of filing being the date the document was misfiled.

In summary, the filing made on July 1, 1998, did not constitute a proper filing under Section 163.3213, Florida Statutes, and the doctrines of equitable tolling and excusable neglect do not apply. Finally, there is no requirement that the DCA (or DOAH) transfer a misfiled document to the appropriate forum and assign a date of filing as being the date on which the document was misfiled. Therefore, the County's Motion to Dismiss is granted.

In light of the foregoing ruling, the Motion to Strike filed by Veal and Culligan is denied. This ruling also renders moot pending Petitions to Intervene filed on behalf of Glenn C. Griffith, William A. Ross, Jean Kutina, and Betty R. Thompson.

Finally, since the DCA's participation in this proceeding is dependent on the viability of Veal and Culligan's petition, the

dismissal of Veal and Culligan's petition, with prejudice, necessarily ends all administrative litigation in this case.

DONE AND ORDERED this 9th day of August, 1999, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 August, 1999.

COPIES FURNISHED:

Colin M. Roopnarine, Esquire Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

Janet Lander, Esquire

14 West Government Street, Room 411 Pensacola, Florida 32501-5814

James Veal

627 Bayshore Drive

Pensacola, Florida 32507

Kerry M. Culligan

814 North 13th Avenue Pensacola, Florida 32501

Raymond Noel, President Home Builders Association

of West Florida, Inc.

4400 Bayou Boulevard, Suite 45

Pensacola, Florida 32503

Mary Jane Thies, Esquire Post Office Box 12950

Pensacola, Florida 32576-2950

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 99-002039GM

Orders for Case No: 99-002039GM