Final Order No. DCA05-GM-201 PEE pm PiLED STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 95 OCT 31 py 9: 5¢ cal & STEVE BRASWELL, BROWN ADM a OR Att LANDHOLDING, INC., and HEAR Yae VE TRAILER RENTAL, INC., se Petitioners, v. DOAH Case No. 05-1682 Final Order No. DCA05-GM-201 VILLIAGE OF WELLINGTON and DEPARTMENT OF COMMUNITY AFFAIRS, Respondents. / FINAL ORDER This matter was considered by the Secretary of the Department of Community Affairs (“the Department”) following receipt and consideration of a Recommended Order issued by an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings. A copy of the Recommended Order is attached hereto as “Exhibit A.” BACKGROUND This matter involves a challenge to a comprehensive plan amendment adopted by Village of Wellington Ordinance 2003-32, hereinafter referred to as “the Plan Amendment.” The Department published a notice of intent to find the Plan Amendment “in compliance,” as defined in Section 163.3184(1)(b), Florida Statutes. The Petitioners challenged the Plan Amendment, as authorized by Section 163.3184(9)(a), Florida Statutes. Upon motion of Respondents Village of Wellington, Administrative Law Judge (“ALJ”) J. Lawrence Johnston of the Division of Administrative Hearings submitted his Recommended Order of Dismissal to the Department. The ALJ recommended that the Department enter a final order dismissing the Petition and determining the Plan Amendment to be “in compliance.” Petitioners filed Exceptions to the Recommended Order of Dismissal. Final Order No. DCA05-GM-201 ROLE OF THE DEPARTMENT Throughout formal administrative proceedings, the Department’s litigation staff contended that the Plan Amendment is in compliance. After the ALJ issued his Recommended Order, the Department assumed two functions in this matter. The attorney and staff who advocated the Department’s position throughout the formal proceedings continued to perform that function. The other role is performed by the Secretary of the Department and agency staff who took no part in the formal proceedings, and who have reviewed the entire record and the Recommended Order in light of the Exceptions. Based upon that review, the Secretary of the Department must either enter a final order consistent with the ALJ’s recommendations finding the Plan Amendment in compliance, or determine that the Plan Amendment is not in compliance and submit the Recommended Order to the Administration Commission for final agency action. §163.3184(9)(b), Fla. Stat. Having reviewed the entire record, the Secretary accepts the recommendation of the Administrative Law Judge as to the disposition of this case. STANDARD OF REVIEW OF RECOMMENDED ORDER AND EXCEPTIONS The Administrative Procedure Act contemplates that the Department will adopt the Recommended Order except under certain limited circumstances. The Department has only limited authority to reject or modify the ALJ’s findings of fact. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. Section 120.57(1)(1), Fla. Stat. (2005) The Department cannot reweigh the evidence considered by the ALJ, and cannot reject findings of fact made by the ALJ if those findings of fact are supported by competent substantial evidence in the record. Heifetz v. Dep’t of Bus. Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Bay N Final Order No. DCA05-GM-201 County Sch. Bd. v. Bryan, 679 So.2d 1246 (Fla. 1st DCA 1996) (construing a provision substantially similar to Section 120.57(1)(), Florida Statutes). See also, Pillsbury v. Dep’t of Health and Rehab. Servs., 744 So. 2d 1040 (Fla. 2d DCA 1999). The Department may reject or modify the ALJ’s conclusions of law or interpretation of administrative rules, but only those, ... conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Section 120.57(1)(), Fla. Stat. (2005) The label assigned to a statement is not dispositive as to whether it is a conclusion of law or a finding of fact. Kinney v. Dep*t of State, 501 So.2d 1277 (Fla. 5th DCA 1987). Conclusions of law, even though stated in the findings of fact section of a recommended order, may be considered under the same standard as any other conclusion of law. THE PLAN AMENDMENT. The Plan Amendment would change the future land use designation of a 144.36 acre parcel from “Palm Beach County Low Residential” to “Residential C.” Of several notices of public hearing for the Plan Amendment, one incorrectly referred to “Ordinance No. 2004-32” instead of 2003-32. RULINGS ON EXCEPTIONS Petitioners take exception to the ALJ’s conclusion that compliance review does not include review of the local government’s adherence to public participation procedures. However, the ALJ’s conclusion is supported by Current v. Town of Jupiter, DOAH Case No. 03-0718GM, 2003 WL 22451197 (DOAH October 24, 2003; DCA April 8, 2004) and the cases cited therein. Final Order No. DCA05-GM-201 The ALJ’s conclusion of law is more reasonable than the interpretation suggested by the Petitioner. The Petitioners also take exception to the ALJ’s conclusion that, even if compliance review included a consideration of adherence to notice and procedural requirements, the notice at issue in the Petition contained the necessary elements under the applicable statute (Section 166.041(3)(c)2.b., Florida Satutes). Petitioners argue that even minor errors can compromise the sufficiency of the notice because of the potential of such errors to mislead recipients of the notice. However, the incorrect ordinance number only occurred in only one of three otherwise identical; notices published over a five month period. Moreover, the title of the ordinance included’ the common name of the affected parcel, and a desctiption of the parcel’s location. Thus, the ALJ’s conclusion is more reasonable than that advanced by the Petitioners. The Petitioner’s Exceptions are DENIED. ORDER Upon review and consideration of the entire record of the proceeding, including the Recommended Order, it is hereby ordered that: 1. ‘The-findings of fact and conclusions of law in the Recommended Order are adopted, 2. The Administrative Law Judge’s recommendation is accepted; and 3. Comprehensive plan amendment Ordinance 2003-32, adopted by Village of Wellingotn, is determined to be in compliance as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ORDERED in Tallahassee, Florida. Thaddeus L. Cohen, AIA, Secretary DEPARTMENT OF COMMUNITY AFFAIRS Final Order No. DCA05-GM-201 NOTICE OF RIGHTS ANY PARTY TO THIS FINAL ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW OF THE ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED INSECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Communi irs, and that true and correct copies have been furnished to the persons listed below this of October, 2005. a Ford, Agency Cler DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 By U.S. Mail: Tom, Wenham By Interagency Mail: Village of Wellington 14000 Greenbriar Boulevard. The Honorable J. Lawrence Johnston Wellington, Florida 33414 Administrative Law Judge Division of Administrative Hearings Gary Brandenburg, Esquire The DeSoto Building 660 U.S. Highway One, Third Floor 1230 Apalachee Parkway North Palm Beach, Florida 33408 Tallahassee, FL 32399-3060 Final Order No. DCA05-GM-201 Michael Busha 301 East Ocean Boulevard Suite 300 Stuart, Florida 34994 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STEVE BRASWELL, BROWN LANDHOLDING, INC. and ‘TRAILER RENTAL, INC., Petitioners, vs. Case No. 05-1682GM VILLAGE OF WELLINGTON and DEPARTMENT OF COMMUNITY AFFAIRS, Respondents. RECOMMENDED ORDER OF DISMISSAL On May 11, 2005, the Department of Community Affairs (DCA) referred to the Division of Administrative Hearings (DOAH) a Request for Remand or, in the Alternative, Petition for Formal Administrative Hearing (Petition). The Petition was directed to a comprehensive plan future land use map (FLUM) amendment adopted by the Village of Wellington (Village) by Ordinance No. 2003-32, and was based entirely on an error in the published notice of the adoption hearing--namely, the notice reference Ordinance No. 2004-32 instead of 2003-32. On May 19, 2005, the Village filed a Motion to Dismiss the Petition. The Petitioners filed a Response on May 24, 2005. DCA did not file a response. Compliance review generally does not include review of the local government's adherence to notice and other procedural requirements, except to determine "whether the transmittal and adoption hearings on the FLUM amendment took place as required by Section 163.3184(15)." See Current v. Town of Jupiter, DOAH Case No. 03-0718GM, 2003 WL 22451197, at *16 (DOAH October 24, 2003; DCA April, 8, 2004). In support of their position, the Petitioners cite Coleman v. City of Key West, 807 So. 2d 84 (Fla. 3d DCA 2001), and Lamar Advertising of Mobile, Inc. v. City of Lakeland, 189 F.R.D. 480 (M.D. Fla. 1999), for the proposition that "strict compliance with statutory notice requirements is jurisdictional and a mandatory prerequisite to valid enactment of the proposed -amendment" and that "failure to strictly comply renders any such ordinance null and void." However, it is noted that those were courts of competent jurisdiction deciding the issue whether an ordinance was void for failure to follow required procedures, not a state administrative agency deciding whether a comprehensive plan amendment was "in compliance." As stated in the Current Final Order, the compliance review issue in this case is "whether the transmittal and adoption hearings on: the FLUM amendment took place as required by Section 163.3184(15)." Section 163.3184(15) (a), Florida Statutes (2004), provides in pertinent part: (a) For the purposes of transmitting or adopting a comprehensive plan or plan amendment, the notice requirements in chapters 125 and 166 are superseded by this subsection, except as provided in this part. * * * (e) If the proposed comprehensive plan or plan amendment changes the actual list of permitted, conditional, or prohibited uses within a future land use category or changes the actual future land use map designation of a parcel or parcels of land, the required advertisements shall be in the format prescribed by s. 125.66(4) (b)2. for a county or by s. 166.041(3) (c)2.b. fora municipality. Assuming Section 163.3184(15) (e) makes the format of the adoption hearing notice a compliance review criterion under the Current Final Order, the ordinance number may have been. incorrect in’ the published notice, but Section 166.041(3) (c)2.b., Florida Statutes (2004), does not include the ordinance number in the required format. The statute does require the title of the ordinance to be included in the notice, and it appears on the face of the Petition that the notice included the correct title of the ordinance. The Petition does not allege any other departure from the required format. For these reasons, the published notice complied with the statutes, notwithstanding inclusion of an incorrect ordinance number in the published notice. Under Florida Administrative Code Rule 28-106.201(4), the Petitioners should be given an opportunity: to cure a defect in the Petition "unless it conclusively appears from the face of the petition that the defect cannot be cured," Since the "defect" in this case is that the allegations in the Petition are legally insufficient, it cannot be "cured" by amendment, and the Petition should be dismissed with prejudice. RECOMMENDATION Based upon the foregoing, it is RECOMMENDED that DCA enter a final order dismissing the Petition and determining the Village's Plan Amendment (Ordinance 2003-32) to be "in compliance." DONE AND ENTERED this 27th day of duly, 2005, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Thaddeus Cohen, Secretary Department of Community Affairs 2555 Shimard Oak Boulevard, Suite 100 Florida 32399-2100 Tallahassee, Ope ii J. LAWRENCE JOHNSTON 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 27th day of July, 2005. Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Florida 32399-2100 Tallahassee, Richard E. Shine, Esquire Department of community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 ba Gary M. Brandenburg, Esquire 660 U.S. Highway One Third Floor North Palm Beach, Florida 33408 Jeffrey S. Kurtz, Esquire Brinkley, McNerney, Morgan, Solomon & Tatum, LLP 200 Hast Las Olas Boulevard, Suite 1900 Fort Lauderdale, Florida 33301 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions wit days from the date of this Recommended Order of Dismissal. 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: 05-001682GM