STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF VALPARAISO,

Petitioner,

vs.

DEPARTMENT OF COMMUNITY AFFAIRS,

Respondent.

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) Case No. 07-0123RU

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FINAL ORDER OF DISMISSAL

This matter came before the undersigned on Respondent Department's (Department's) Motion to Dismiss Petition or, in the Alternative, Motion for Summary Final Order (Motion). A Response in opposition to the Motion was filed by Petitioner, City of Valparaiso (City), on January 31, 2007. The Motion seeks to dismiss the Petition to Determine the Invalidity of Agency Statements Pursuant to Section 120.56(4), Florida Statutes (Petition) filed on January 11, 2007, on the ground the City lacks standing to file the Petition. Alternatively, the Motion seeks the entry of a summary final order in its favor on the ground there exist no disputed issues of material fact regarding standing.

The undisputed facts which underlie the rule challenge are found in Case No. 06-2777GM and may be briefly summarized as follows. That case involves a plan amendment adopted by the City of Parker, which is located in Bay County in close proximity to Tyndall Air Force Base, a military installation.

In determining that the City of Parker's plan amendment was not in compliance, the Department noted that the plan amendment did not contain adequate provisions addressing compatibility and coordination with Tyndall Air Force Base. This concern was based in part on two statutory requirements: (1) Section 163.3175, Florida Statutes (2006), which provides in part that local governments cooperate with installations in land use matters and allow military installations to review and comment on proposed changes to comprehensive plans; and (2) Section 163.3177(6)(a), Florida Statutes (2006), which requires in part

that local governments include criteria in a plan's future land use element to achieve compatibility with military installations. Just prior to the scheduled final hearing in Case No. 06-2777GM on January 18, 2007, the parties settled the case, and the matter is in abeyance pending the execution of a settlement agreement and the adoption of a remedial amendment by the City of Parker. (The precise terms of the settlement agreement are not of record.)

Here, the Petition alleges that in its review of the City of Parker's plan amendment, the Department "issued" three agency statements which implement the foregoing statutory provisions and fall within the definition of a rule in violation of Section 120.54, Florida Statutes (2006). The Petition further alleges that the City's substantial interests are affected because the City has a comprehensive plan, that it periodically amends its plan, that the City lies in close proximity to another military installation, Eglin Air Force Base, and that the Department may apply these agency statements to the City whenever it amends its comprehensive plan in the future.

Among other things, in order to have standing to file a rule challenge, a petitioner must establish "a real and sufficiently immediate injury in fact." Lanoue v. Fla.

Department of Law Enforcement, 751 So. 2d 94, 96 (Fla. 1st DCA 2000). This injury in fact "must not be based on pure speculation or conjecture." Ward v. Board of Trustees of the Internal Improvement Trust Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA 1994).

The City and Eglin Air Force Base lie within Okaloosa County, while the City of Parker and Tyndall Air Force Base are located in Bay County. Aside from these geographic differences, the agency statements at issue here (and which are alleged to be unpromulgated rules) were applied to a plan amendment of the City of Parker now pending before the Department. The City of Valparaiso has not alleged that it has adopted a plan amendment for transmittal to, and review by, the Department, which would trigger the same agency statements relied upon by the Department in its review of the City of Parker's plan amendment. Indeed, in its Petition, the City simply alleges that "DCA will apply its invalid agency statements to Valparaiso's comprehensive plan amendments, both in the future and to that currently due [but not yet adopted and submitted to the Department]." An allegation that the Department intends to apply the same agency statements to a plan amendment which the City intends to adopt at a future time is nothing more than "pure speculation or

conjecture" and is not "a real and sufficiently immediate injury in fact" that is necessary to establish standing to file a rule challenge. Lanoue, supra; Ward, supra.1 Because the City acknowledges that it has not adopted any plan amendment at this time, much less one that relates to compatibility with military installations, it lacks standing to file the Petition. The Department's Motion to Dismiss Petition for lack of standing is accordingly granted. Because amendment cannot cure this defect, the dismissal should be with prejudice. In view of this ruling, the Motion for Summary Final Order becomes moot. It is therefore,

ORDERED that the City of Valparaiso's Petition to Determine the Invalidity of Agency Statements Pursuant to Section 120.56(4), Florida Statutes, is hereby dismissed, with prejudice.

DONE AND ORDERED this 5th day of February, 2007, in Tallahassee, Leon County, Florida.

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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 5th day of February, 2007.

ENDNOTE

1/ In its Response, the City argues that the Lanoue case, cited by the Department in its Motion, is inapposite because the challenger in that case was found to have standing on the basis of having alleged a real and immediate injury in fact. While this factual distinction is correct, the broad principle cited therein (that an alleged injury must be real and sufficiently immediate) still applies, and the City's Petition is deficient in this respect.

COPIES FURNISHED:

Douglas M. Wyckoff, Esquire Post Office Box 786

DeFuniak Springs, Florida 32435-0786

Kelly A. Martinson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

F. Scott Boyd, Executive Director and General Counsel

Joint Administrative Procedures Committee Room 120, Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator Administrative Code

Department of State

R. A. Gray Building, Suite 101 Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order of Dismissal 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 the original notice of

appeal with the Clerk of the Division of Administrative Hearings and a 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: 07-000123RU

Orders for Case No: 07-000123RU