blading ch lchaas oe Py . = _DCAE FIN at ogg. ‘OL orfiseone . Pry age ate ORIDA A alls, I 3p "DEPARTMENT OF COMMUNITY AFFAIRS: “h “40.0. JDLLAND TRUST, ROY N. GERACI, "and PETER GERACI, ? ee eal “OF COMMU INI Y AFFAI So _) ee ~ Respondents, ~y ) a “compliance. TI st od i in the Department’ Ss Notice of Intent, which \ was published on November 27, 2000. Pursuant to , Section 163. 318409), Florida Statutes, any "affected person" had twenty-c one days from that publication d date in which to file a petition to © : Alexander of the Division of Administrative He srings. As the pleadings didn not identify any diputed issues of material fact and the issues were iegal in nature, a non- x éptions was file the Departnent’s attomey. We 0 ‘eanscrip of the motion nearing was fed) - ~ sg ong tenes ect TR mi bea? de “The amendments i in question were e adopted pursuant to the terms of a settlement agreement drafted t to o resolve an earlier filed Pasco County plan amendment case. The petitioners “yequirements of Sections 163. 3184(1)(a) and (6), Florida Statutes, with respect to 9 the " new" : amendment. Scene ae In their exceptions, the Petitioners first argue that the Department and the County did not follow the proper procedures "in adopting the Comprehensive Plan Amendments challenged by nN - this Petition pursuant to a ‘settlement agreement’. ORDER NO. 01. GM" vane evidentiary hearing was : “conducted. The ALI recommended that the Petition be dismissed on the ground of untimeliness. . The Petitioners filed | exceptions to the ALJ ’s Recommended Order of Dismissal. A response to — The Petitioners interpret Section ie siak. , mr “yO ter py RE FEY ESET” NEESER WSCIERSIE§7° <“EERESSSIETTT ERT CONES ee gna or Statutes. The Petitioners further claim that ¢ eir -etition was not unti did ot ot provide them a clear point of entry to challenge the amendments adopted by the County on October 7, 2000. Those arguments are cS because that statute is s not re srenced i in 1 subsection 1 i 6. ‘The Department instead i is to provide fiotice of its s determination regarding the remedial amendment by filing the notice of intent with | o the Division of Administrative Hearings in the case Which is the subjes ect of the settlement agreement and sending copies of that notice to the parties. This legal interpretation is incorrect. Contrary to the Petitioners’ assertions, the ami ndments. Section op PORE I TT RRS DCA FINAL ORDER NO. 01-GM-074 sion or of their right to challenge ; und eying case would not ot have resulted i in actual notice to the Petitioners. They had withdrawn from that o case cand v were no 10 longer Parties of record. : “The Department is re ined by Section 1633 31 84 0 Florida Stats, to provide actual i notice ‘of a compliance dec ion only to the local government and to persons who request notification There is no > other legal requirement imposed o on n the Department for providing actual The Petitioners did not t allege i in n any of their pleadings th that they made such a a request and they | “, State in \ their exceptions that the facts are not in dispute. As the Petitioners were not entitled to mailed notice from the Department, rey were required ' to file their Petition within twenty-one | . i . notice. Iti is s clear tat the Petitioners didn not request actual notice from the Deparment however. a = days from the date of the published nd notice of intent. The published n notice procedure provides a a clear: Point o of entry, however the Petition was unin filed past ‘the notice’ s ‘twenty-one day ~ i ee deadline. The Pet oners -exceptions rélated to notice procedure and point of entry are denied. The Petitioners also take exception to the ALJ’s conclusion that there were no equitable \ ve grotinds upon which | to proceed with a final hearing on the merits of their Petition. The Department i is without i jvisdiction to grant this request. ” The Depart has 1 no Tegal autho to reject an ALJ 5 application of judicial principles in his conclusions of law. See Deep Lagoor ~ Boat Club, Inc., Ltd. v. Sheridan, 26 Fla. L. Weekly D562 (Fla. 2d DCA Feb. 21 » 2001). ‘Under ? ~ DCA FINAL ORDER NO. 01-GM-074 a ei ieee BIE oe en ote _ equitable circumstance 2 (other than equitable estoppel) which would justty their late filing.” Under the facts alleged by the Petitioners and th the timing of the petitioners’ sequest “the : b their petition is denied. The Petitioner ‘had ample opportunity to raise this request to amend LJ entered his recommended order. ‘However, the Petitioners chose i in their Petition to argue equitable estoppel rather than any other equitable remedies. The Petitioners did not file their Petition under the mista ken | belief that there was no issue as to timeliness. The * a Petition acknowledges the need to explain its timing and a Signa portion of the Petition is ya dedicated to explaining why it should be construed to be timely filed despite being filed more © than tents one . days after the notice’ s publication date. ~ Moreover, “the Petitioners did not raise equitable tolling or excusable neglect in their response to the motion to dismiss. They have not “DCA FINAL ORDER NO. 01-GM-074 2 The petition for hearing filed in this case is hereby dismissed. wieathe anemose sb Tallahassee, “Florida (850) 4 488-8466 _.To initiate an appeal of this order, : a Notice 0 Appeal must be filed with the Department's Agen ‘Clerk, 2555 Shumard Oak « Boulevard, Tallahassee, Florida 32399- 60; within thirty (30) days. ‘ofthe fie d bli ae I . ORDER NO. 01-GM-074 I HEREBY CERTIFY that the original of the foregoing has been filed with the ne Agency Clerk of —— the Department of Community Affairs, and a true and correct copy of ‘the foregoin 1g has bee’ - furnished by the method indicated to the following persons listed below on this Vi ? day of an os, 2001. coon Vw b— aula Ford, Agency Alerk DEPARTMENT OF COMMUNITY AFFAIRS » 2555 Shumard Oak Blvd. Tallahassee, FL 32399- 2100. Colin M. Roopnarine, Esquire ~ Assistant General haat os ral assee, Florida 32399-2100 7530 Little Road -) Suite 430 The Honorable Donald R. Alexander | — Administrative Law Judge

Docket for Case No: 01-000958GM