The Issue The issue in the case is whether a statement made by a representative of Respondent Department of Community Affairs in a letter to legal counsel for Petitioners, and statements made in a Final Order of Dismissal entered by Respondent, constitute unpromulgated rules in violation of applicable Florida law.
Findings Of Fact Petitioner Alachua Leadership Alliance-Citizens Helping Us All, Inc. (ALA-CHUA), is a corporation created to represent the interests of certain citizens within the community, to "share information with the community," and to be "a citizen's watchdog group overlooking the expenditures" of funds. ALA-CHUA holds regular meetings, attends public meetings, and initiates litigation. ALA-CHUA president Tamara Kay Robbins and ALA-CHUA member Eileen McCoy testified at the hearing. Petitioners Robert A. Perez, Thalia Gentzel, and Madalene Rhyland, did not testify at the hearing. Respondent is the state agency charged with administration of the Local Government Comprehensive Planning and Land Development Regulation Act ("Act"), Chapter 163, Part II, Florida Statutes. As stated at Subsection 163.3161(2), Florida Statutes (2004), the purpose of the Act is to "utilize and strengthen the existing role, processes, and powers of local governments in the establishment and implementation of comprehensive planning programs to guide and control future development." The Act requires local governments to adopt comprehensive plans that address numerous areas of responsibility. As set forth at Subsection 163.3191(1), Florida Statutes (2004), each local government is required to adopt an evaluation and appraisal report ("EAR") to assess "the progress in implementing the local government's comprehensive plan" and identifying portions of the plan that require updating. Subsection 163.3191(9), Florida Statutes (2004), requires that Respondent establish a schedule for adoption of EARs that provides "each local government at least 7 years from plan adoption or last established adoption date for a report. " After the EAR is completed, it is submitted to Respondent for a "sufficiency determination" as required at Subsection 163.3191(6), Florida Statutes (2004). Once Respondent determines an EAR to be sufficient, the local government is required to adopt within 18 months from the sufficiency determination, EAR-related comprehensive plan amendments. Subsection 163.3191(10), Florida Statutes (2004), provides that the 18-month deadline may be extended for six months by Respondent for "good and sufficient cause" and may again be extended if the additional extension would "result in greater coordination between transportation and land use, for the purposes of improving Florida's transportation system." Subsection 163.3191(11), Florida Statutes (2004), provides as follows: The Administration Commission may impose the sanctions provided by s. 163.3184(11) against any local government that fails to adopt and submit a report, or that fails to implement its report through timely and sufficient amendments to its local plan, except for reasons of excusable delay or valid planning reasons agreed to by the state land planning agency or found present by the Administration Commission. Sanctions for untimely or insufficient plan amendments shall be prospective only and shall begin after a final order has been issued by the Administration Commission and a reasonable period of time has been allowed for the local government to comply with an adverse determination by the Administration Commission through adoption of plan amendments that are in compliance. The state land planning agency may initiate, and an affected person may intervene in, such a proceeding by filing a petition with the Division of Administrative Hearings, which shall appoint an administrative law judge and conduct a hearing pursuant to ss. 120.569 and 120.57(1) and shall submit a recommended order to the Administration Commission. The affected local government shall be a party to any such proceeding. The commission may implement this subsection by rule. Section 14.202, Florida Statutes (2004), identifies that the Administration Commission is the Governor and the Cabinet. The sanctions available to the Administration Commission include various restrictions on the eligibility for and provision of certain state funds to non-complying local governments. The City of Alachua (City) is a local government with responsibility for adoption of a comprehensive plan. According to the Respondent's letter to City Mayor James A. Lewis dated December 29, 1998, the City's EAR was determined to be sufficient by the Respondent. The 18-month deadline for the City to adopt EAR- related comprehensive plan amendments expired at the end of June 2000. There were no deadline extensions granted by Respondent to the City. The City failed to meet the 18-month deadline for the adoption of EAR-related comprehensive plan amendments. By letter dated June 30, 2004, to Thaddeus Cohen, Secretary of the Department of Community Affairs, David Jon Russ (counsel for Petitioners) asked Respondent to initiate proceedings against the City of Alachua under the provisions of Subsection 163.3191(11), Florida Statutes (2004), by no later than July 8, 2004. By letter dated July 20, 2004, David L. Jordan, Deputy General Counsel for Respondent, advised Mr. Russ that Respondent "respectfully declines your request to seek sanctions against the City." The letter further states as follows: The City transmitted proposed EAR-based amendments on May 12, 2004, and the Department issued its Objections, Recommendations, and Comments ("ORC") report on July 16, 2004. Although the ORC report raises some objections to the proposed EAR- based amendments, the Department believes that the City can revise the amendments to resolve those objections. Therefore, the City is on course to adopt sufficient plan amendments to implement the EAR. The Department will not commence litigation to force the City to perform a duty that the City is already performing. Subsection 163.3184(7), Florida Statutes (2004), provides that a local government has 120 days from the date of the ORC report to adopt (or adopt with changes) the EAR-based amendments. Accordingly, the deadline for the City to adopt the amendments was November 15, 2004. The City adopted the EAR- based amendments on September 13, 2004. In response to the Jordan letter dated July 20, 2004, on August 16, 2004, Petitioners filed with Respondent a Petition for Hearing on Decision Affecting Substantial Interests and for Rulemaking, stating that Petitioners "demand a hearing before DOAH, a recommended order finding the action illegal, a final order adopting it, and rule-making by the Department." The Petition indicates that Petitioners desire a hearing on Respondent's decision not to initiate administrative proceedings against the City and to require Respondent to initiate rulemaking related to Subsection 163.3191(11), Florida Statutes (2004). On August 31, 2004, Respondent entered a Final Order Dismissing Petition, in which Petitioners' requests were dismissed with prejudice. The Final Order was not appealed. As grounds for the dismissal of the request for hearing, the Final Order of Dismissal stated that Petitioners failed to "identify any interest protected by pertinent substantive law that will suffer injury by virtue of the Department's decision not to seek sanctions against the City" and that Petitioners failed to identify any substantive right protected under Section 163.3191, Florida Statutes (2004). As grounds for dismissal of the request for rulemaking, the Final Order noted that Subsection 163.3191(11), Florida Statutes (2004), vests authority for adoption of rules related to implementation of the subsection in the Administration Commission, and that Respondent had no authority to initiate rulemaking. The evidence presented at the hearing established that Respondent's general policy is to encourage and negotiate with non-complying local governments, and that various types of technical and financial assistance is available to local governments, depending on the circumstances, to enable such compliance. The evidence further established that Respondent would initiate Subsection 163.3191(11) proceedings against a non- complying local government if the local government failed to proceed into compliance after receiving appropriate technical and financial assistance from Respondent. As of the date of the hearing, Respondent has not initiated Subsection 163.3191(11) proceedings against a local government for failing to timely adopt EAR-based comprehensive plan amendments. There is no evidence that any local government has failed to come into compliance with applicable comprehensive plan requirements after receiving assistance from Respondent. There is no evidence that Respondent has made any statement indicating that it would never initiate proceedings against any local government under the provisions of Subsection 163.3191(11), Florida Statutes (2004).
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL 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 IN SECTION 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. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. 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 Community Affairs, and that true and corggct copies have been furnished to the persons listed below in the manner described, on this pod, day of February, 2010. Paula Ford fo Agency Clerk Florida Department of Community A ffairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 U. S. Mail: J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Derrill McAteer, Esq. The Hogan Law Firm P.O. Box 485 Brooksville, Florida 34605 Hand Delivery: L. Mary Thomas, Esquire Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399 FINAL ORDER NO. DCA10-GM-017 Gary J. Cooney, Esq. Richey and Cooney 601 South 9" Street Leesburg, Florida 34748 Brad Cornelius Planning Manager 910 North Main Street Suite 301 Bushnell, Florida 33513
The Issue The issue is whether to approve, approve with conditions, or deny Top Flight's development application approved by the Board on July 26, 2004. That decision approved a Flexible Development application to permit a reduction on the side (east) setback from 10 feet to 5.85 feet (to pavement) and an increase of building height from 35 feet to 59 feet from base flood elevation of 13 feet MSL (with height calculated to the midpoint of the roof slope) in association with the construction of 62 multi-family residential (attached) units at 1925 Edgewater Drive, Clearwater, Florida.
Findings Of Fact On September 25, 2003, Top Flight filed a Flexible Development Application for Level Two approval of a comprehensive infill for redevelopment of properties located on the southeast corner of the intersection of Sunnydale Drive and Edgewater Drive and just north of Sunset Pointe Road in Clearwater, Florida. A Comfort Suites motel is just north of the property, while a Chevron gasoline station sits on the south side. The property is located within the Tourist zoning district, which allows condominiums as a permitted use. The project, as originally proposed, involved the construction of a seventy-seven unit, seven-story (including covered parking), luxury condominium on a 2.572-acre tract of land now occupied by 32 motel units and 9 rental apartments with ancillary structures, which the developer intends to raze. The original application requested a deviation from the requirement in the Code that structures in the Tourist zoning district not exceed 35 feet in height. Under flexible development standards for that zoning district, however, a structure may be built to a maximum height of between 35 and 100 feet. (Although the City staff is authorized to approve requests for a deviation up to a maximum height of 50 feet without a hearing, Top Flight was requesting a flexible deviation to allow the building to be constructed an additional 25 feet, or to a height of 75 feet. This was still less than the 100 feet allowed under flexible development standards.) On December 24, 2003, Top Flight filed a second application which amended its earlier application by seeking a reduction of the front yard setback on Sunnydale Drive from 25 feet to 17 feet to allow the placement of balcony support columns within the setbacks. Without a deviation, the Code requires a minimum 25-foot front yard setback. The second application continued to seek a deviation in height standards to 75 feet. Because of staff concerns, on February 5, 2004, Top Flight filed a third Flexible Development application for the purpose of amending its earlier applications. The matter was placed on the agenda for the March 16, 2004, meeting of the Board. At the meeting on March 16, 2004, the City's staff recommended that certain changes in the design of the building be made. In order to make these suggested changes, Top Flight requested that the matter be continued to a later date. That request was granted, and the matter was placed on the agenda for the April 20, 2004, meeting. At the April 20, 2004, meeting, Board members again expressed concern over the height of the building, the lack of stair stepping, and the bulk, density, and height. Because of these concerns, Top Flight requested, and was granted, a 90-day continuance to address these concerns. Appellant, who was present at that meeting, did not object to this request. The matter was then placed on the agenda for May 18, 2004, but because of a notice problem, it was continued to the July 20, 2004, meeting. During the April 20, 2004, meeting, the Board allowed Top Flight's architect, Mr. Aude, and a City Planner III, Mr. Reynolds, to make their presentations prior to asking if any persons wished party status. (Section 4-206.D.3.b. provides that, as a preliminary matter, the chair of the Board shall "inquire of those attending the hearing if there is any person who wishes to seek party status.") Mr. Reynolds was not sworn, even though Section 4-206.D.3.d requires that all "witnesses shall be sworn." After the presentations by Mr. Aude and Mr. Reynolds, Appellant was given party status. Therefore, Appellant could not cross-examine the two witnesses immediately after they testified. However, Appellant did not request the right to examine those witnesses nor did she lodge an objection to the procedure followed by the Board. Also, assuming that Mr. Aude and Mr. Reynolds were treated as experts by the Board, there is no indication that either witness submitted a resume at the hearing. (Section 4-206.D.5.a. requires that "[a]ny expert witness testifying shall submit a resume for the record before or during the public hearing.") However, no objection to this error in procedure was made by any person, including Appellant. Based on the concerns of staff and Board members at the April 20, 2004, meeting, and to accommodate objections lodged by nearby residents, Top Flight modified its site plan by reducing the height of the building from 75 to 59 feet (which in turn reduced the height of the building from six stories over parking to four) and increasing the number of parking spaces. Other changes during the lengthy review process included decreasing the side (rather than the front) setback from a minimum of 10 feet to 5.85 feet and preserving two large oak trees on the property. The proposed height was significantly less than the maximum allowed height in the Tourist district (100 feet), and the proposed density of 59 units was also considerably less than the maximum allowed density on the property (30 units per acre, or a total of 77 on the 2.57-acre tract). The application, as amended, was presented in this form at the July 20 meeting. Documents supporting the various changes were filed by Mr. Aude in February, March, April, May, and June 2004, and are a part of the record. At the hearing on July 20, 2004, Mr. Reynolds and Mr. Aude again testified in support of the application, as amended. The staff report prepared by Mr. Reynolds was made a part of the record. (Section 4-206.G provides that the record shall consist of, among other things, "all applications, exhibits and papers submitted in any proceeding.") The report found that "all applicable Code requirements and criteria including but not limited to General Applicability criteria (Section 3-913) and the flexibility criteria for attached units (Section 2-803.B) have been met." The Board accepted this evidence as the most persuasive on the issue. The Board further accepted the testimony of Mr. Aude, and a determination in the staff report, that the project would be compatible with the character of the neighborhood. In doing so, it implicitly rejected the testimony of Appellant, and other individuals, that the height of the building was inconsistent with the character of the neighborhood. Finally, the Board accepted Mr. Reynolds' recommendation that the application should be approved, subject to eighteen conditions. The vote was 4-2 for approval. During the July 20, 2004, meeting, Mr. Reynolds was cross-examined by another party, Mr. Falk. Although given the right to do so, Appellant did not question the witness. All parties, including Appellant, were given the opportunity to cross-examine Mr. Aude, but none sought to do so. The parties were also given the opportunity to ask questions of Top Flight's counsel, who gave argument (but not evidence) on behalf of his client. Although members of the public, and Appellant, were limited in the amount of time allowed for statements to three minutes, all persons who gave testimony or made statements that day, including Appellees, were urged by the chair to limit their remarks. Finally, Top Flight's counsel was allowed to make a closing argument at the meeting, at which time he used a demonstrative exhibit (a "chart" containing the names of area residents who supported the project), which was shown to Board members. (The same information can be found in the City files, which are a part of this record and contain correspondence from numerous area residents, some supporting, and others opposing, the project.) Although Appellant was not shown a copy of the document, the record does not show that she objected to the use of a demonstrative exhibit, or that she requested to see a copy. Mr. J. B. Johnson was appointed to the Board sometime after the April 20, 2004, meeting. At the July 20, 2004, meeting, he made the following statement concerning Top Flight's application: I can't speak for everybody here. Some people have lived here a short period of time. In view of every word that I have heard, every word that I have read, and I've been keeping up with this for several months because several months ago I had telephone calls from your area. I don't know how you could satisfy everybody. It's impossible, but I do know this, this is a great project. One that would be good for the City. One for the area, good for the area and I will support this. Appellant has not cited to any evidence showing that Mr. Johnson did not review the record of the prior meetings or the application file before he cast his vote. Further, Appellant did not object to Mr. Johnson's participation. On July 26, 2004, the Board entered its DO memorializing the action taken on July 20, 2004, which approved Top Flight's application. In the DO, the Board made the following findings/conclusions supporting its decision: The proposal complies with the Flexible Development criteria per Section 2-803.B The proposal is in compliance with other standards in the Code including the General Applicability Criteria per Section 3-913. The development is compatible with the surrounding area and will enhance other redevelopment efforts. The decision also included 18 Conditions of Approval and a requirement that an application for a building permit be made no later than July 20, 2005. On August 3, 2004, Appellant filed her Appeal Application seeking a review of the Board's decision. The Appeal Application set out two relevant grounds (without any further specificity): that the Board's decision was not supported by the evidence, and that the Board departed from the essential requirements of the law. On August 19, 2004, the City referred the Appeal Application to DOAH. The specific grounds were not disclosed until Appellant presented oral argument and filed her Proposed Final Order.1
