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 aA.
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).
Findings Of Fact Background The Parties Respondent, City of Hialeah (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive plans and amendments thereto. Petitioners, Edmond J. Gong and Dana L. Clay (petitioners), reside in Coconut Grove, Florida and own at least two parcels of property within the City. The parties have stipulated that petitioners are affected persons within the meaning of the law and have standing to challenge the remedial amendment in issue here. The Nature of the Dispute In 1991 and 1992, the City adopted three sets of land use amendments to its comprehensive plan known as amendments 91-1, 91-2 and 92-1. Each set of amendments generated objections by the DCA, and the matters were later sent to the Division of Administrative Hearings and were assigned Case Nos. 91-6340GM, 92-3113GM and 92-7517GM, respectively. Petitioners did not participate in any of these proceedings. To resolve the objections raised by the DCA, the City and DCA negotiated a stipulated settlement agreement in December 1993, which was executed by the City on January 28, 1994. Pursuant to that agreement, on April 21, 1994, the City adopted a remedial amendment (Ordinance 94-27) known as amendment 94R-1. After reviewing the amendment, on June 2, 1994, the DCA issued a cumulative notice of intent to find such amendment in compliance. On June 7, 1994, the South Florida Regional Planning Council also found the amendment to be in compliance. Finally, on July 11, 1994, the DCA's motion to dismiss Case Nos. 91-6340GM, 92-3113GM and 92-7517GM was granted. Petitioners, who participated in the local hearings concerning the adoption of amendment 94R-1, timely filed their petition for administrative hearing on June 23, 1994, challenging the propriety of that amendment for various reasons. The petition was assigned Case No. 94-3506GM. Although petitioners failed to plead any procedural issues in the initial petition, respondents have agreed that petitioners may raise certain procedural objections regarding amendment 94R-1 since the procedural issues were raised in their objections and comments filed with the City during the adoption process of the amendment. Procedurally, petitioners argue that the local government did not comply with all statutory requirements in noticing its proposed approval of the settlement stipulation and its later intent to adopt an ordinance. As to the DCA, petitioners argue that the state agency did not comply with the law in publishing its cumulative notice of intent on June 2, 1994, and that the notice contained erroneous rule citations and lacked a geographical map. Substantively, petitioners complain that before final approval of amendment 94R- 1 was given, the local government and DCA did not consider the enactment of Chapter 94-338, Laws of Florida, which created a multijurisdictional tourism, sports and entertainment special district known as the Blockbuster Park Special District, and they did not consider the traffic impacts of a recently opened connector to Interstate 75 and an interchange within the City that connects traffic from the connector to the Florida Turnpike. Finally, they contend that the amendment improperly redesignated more than ten acres of land from residential to commercial land use. Amendments 91-1, 91-2 and 92-1 involve ten amendments to the plan, all originally found not to be in compliance by the DCA. To cure three of those deficiencies, the City rescinded three ordinances leaving seven plan amendments to be remediated. Petitioners challenge the validity of these seven amendments but none change the use on their property. In reality, though, petitioners rely principally on their procedural objections in seeking to have a determination made that the amendment is not in compliance. Were the Notice Requirements Met? After the DCA and City reached an agreement in principle to resolve the DCA's objections to the plan amendments, a settlement agreement was prepared for execution by the City's mayor and DCA Secretary. Before the mayor could sign the agreement, however, the City Council's approval and authorization were required. Such approval and authorization to sign the agreement came in the form of a resolution adopted at a public hearing held on January 25, 1994. The agreement was later signed by the mayor and DCA Secretary on January 28 and March 3, 1994, respectively. The City had originally intended to consider the item at its January 11, 1994 meeting. Timely publication of notice was given for that meeting on December 27, 1993, in the regular edition of The Miami Herald, a newspaper of general paid circulation published daily in Dade County. At the January 11 meeting, however, the City discussed the matter but then deferred final action on the item until its next meeting on January 25, 1994. Accordingly, it republished a notice of its January 25 meeting in the Zone 4 Northwest Neighbors section of the Herald. The Zone 4 Northwest Neighbors section is an insert in the Herald each Thursday and Sunday and contains news pertaining to the northwest portion of Dade County, including the City. Because all copies of the Herald delivered and sold in northwest Dade County contain this particular Neighbors insert, the City complied with the requirement that the advertisement be published in a newspaper of general paid circulation within the jurisdiction of the City. Since petitioners reside and work outside of northwest Dade County, they say they did not receive the Neighbors insert in their paper and thus they were not aware of the January 25 hearing. There is no requirement, however, that the advertisement be published in other parts of Dade County. It is noted that even though they should have received notice of the January 11 hearing through the advertisement published in the regular edition of the Herald on December 27, 1993, they did not attend the hearing. The four-inch notice published on page 15 of the January 16, 1994 edition of the Neighbors section reads as follows: At its regular meeting of January 25, 1994, the Hialeah City Council will consider the following Resolution in addition to other business. Members of the public are invited to attend; the meeting begins at 7:00 p.m. at Hialeah City Hall, 501 Palm Avenue, Hialeah, Florida. RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, AUTHORIZING THE MAYOR TO ENTER A STIPULATED SETTLEMENT AGREEMENT IN CASE NOS. 91-6340GM, 92-3113GM AND 92-7517GM, ENTITLED "DEPARTMENT OF COMMUNITY AFFAIRS VS. CITY OF HIALEAH" NOW CONSOLIDATED BEFORE THE STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS FOR TRANSMITTAL TO THE FLORIDA DEPART- MENT OF COMMUNITY AFFAIRS. Applicable state law (s. 163.3184(16), F.S.) called for the notice to be published at least ten days prior to the hearing. In addition, general provision 3 of the settlement agreement provided in part as follows: This agreement has been approved by the governing body at a public hearing advertised in an adver- tisement published at least 10 but not more than 15 days prior to the hearing in the format prescribed for advertisements in Section 163.3184(15)(c) and Section 163.3187. Assuming the day of the hearing is not counted in computing the ten days, the City would have had to publish the notice by Saturday, January 15, 1994, in order to meet the ten-day requirement. Because the Neighbors section was not published on Saturdays, but rather only on Thursdays and Sundays, the City opted to publish the notice on Sunday, January 16, 1994, or just nine days before the hearing. This was necessary since the item was deferred at the January 11 hearing, and the City presumably was unable to meet the deadline for having an ad published only two days later in the Thursday, January 13, 1994 edition of Neighbors. Even so, petitioners were unable to show any prejudice by virtue of the City failing to meet the ten-day notice requirement. The settlement agreement called for the City to adopt certain remedial amendments by ordinance. These amendments are contained in Ordinance No. 94-27. Although state law (s. 163.3184(16)(d), F. S.) requires that the City hold only one advertised public hearing on a compliance amendment at the adoption stage, in accordance with the City Charter, two hearings were scheduled for that purpose on March 22 and April 12, 1994. A single one-quarter page advertisement in the regular edition of the Herald was published on March 17, 1994, or five days before the first hearing. The law (s. 163.3184(15)(b)2., F. S.) also requires that the hearing be "approximately 5 days after the day that the second (i. e., adoption stage) advertisement is published." The advertisement referred to both hearing dates and noted that their purpose was "to receive comments from interested parties on the Stipulated Settlement Agreement between the City of Hialeah and the Florida Department of Community Affairs related to the 1990 and 1991 Cycles I and II plan amendments to Hialeah's Comprehensive Plan." The advertisement also contained a list of the ten plan amendments and a map showing the portion of the City affected by each of those amendments. Although petitioners contended that the map was illegible in some respects, they nonetheless read the notice in the newspaper and attended both hearings to voice their objections to the ordinance. Notwithstanding petitioners' objections, on April 12, 1994, the City adopted the ordinance. Contrary to petitioners' assertion, the City complied with the notice requirements for both hearings. Assuming arguendo that the statutory notice requirements were not strictly met, petitioners failed to demonstrate that they were prejudiced by such an error. After reviewing the ordinance, on June 2, 1994, the DCA published in the Neighbors section of the Herald a cumulative notice of intent to find the plan amendments and remedial plan amendment in compliance. The advertisement was one-quarter page in size, identified the plan amendments in issue, advised readers that the amendments were in compliance, gave a location where such amendments and comments could be reviewed, and offered a point of entry to affected persons. Therefore, its content was sufficient to inform the public of the action being taken. The DCA concedes that in the notice, however, it cited rule 9J-11.012(8) as the provision dealing with the contents of a petition to challenge the amendments found to be in compliance when in fact the correct citation should have been rule 9J-11.012(7). There is no section (8) in the rule. The notice also cited former rule 22I-6.010 as the rule dealing with intervention when in fact that rule has been renumbered as rule 60Q-2.010. Even so, petitioners were unable to show how they were prejudiced by these minor errors, especially since they knew the nature of the action being proposed by the DCA, and they timely filed their petition for hearing to challenge the amendment. The DCA policy is to publish its notice of intent to find an amendment in compliance in the same local newspaper as the local government uses for its publication. The DCA also pointed out that by advertising in the Neighbors section as opposed to the regular edition of the Herald, it saved several thousand dollars. Therefore, the DCA used the Neighbors section of the Herald. At the same time, the DCA has never included in its advertisement a map showing the location of the land use changes being proposed. This is because the local government advertisements have already included a map, and the DCA notice is simply for the purpose of advising the public which ordinances are in or out of compliance. In the absence of any showing of prejudice, and in view of petitioners' failure to demonstrate to the exclusion of fair debate that the plan amendment as a whole is incompatible with, does not further or take action in the direction of realizing, the goals of the law, the cited procedural errors are insufficient to support a finding that amendment 94R-1 is not in compliance. The plan amendment Since 1986, petitioners have owned two parcels of undeveloped property in the southern one-half and northwestern one-quarter of Tract 24 of Section 28, which is located in the western part of the City. The property consists of approximately six acres located at the northeastern intersection of West 76th Street and the Hialeah-Hialeah Gardens Boulevard. The property has been designated on the future land use map as low density (single-family) residential, which allows up to twelve units per acre. Petitioners have not specifically pled or shown how amendment 94R-1 adversely affects their property. Instead, they simply argue that the plan amendment is not in compliance because the City did not consider the impacts of "drastically changed circumstances" before adopting the remedial ordinance, and the City improperly reclassified a small tract of land. These claims will be considered below. Effective June 3, 1994, Chapter 94-338, Laws of Florida, became law. That law created a multijurisdictional tourism, sports and entertainment special district more commonly known as Blockbuster Park. That legislation, however, is not relevant to this proceeding for several reasons. First, there is no mechanism to consider multijurisdictional impacts in the local planning process. Second, the special act did not become law until after the amendment process here had been completed. Since the City was only required to consider the best available data present at the time the amendment was being reviewed and adopted, consideration of the special law was neither necessary or appropriate. Third, the act itself does not authorize a development. If and when a development order is approved, the City can update its plan to take into account any impacts from the project. As to the contention that the City and DCA failed to take into account the six-lane connector road completed on December 31, 1993, or two years after the plan amendments were adopted, the impact of the connector road is identified and discussed on pages 21 and 23C of the future land use element contained in the remedial amendments. At hearing, it was further explained that the connector road is a limited access regional road under the control of Dade County, and not the City. This means that there is no access to the connector from properties which front on the road, and local access will be limited to three major road intersections. No land use changes along the road have been proposed, and the City has adequately addressed the circulation map requirements in the plan and how the internal circulation routes would be compatible with the major connectors. This being so, it is found that the City and DCA gave adequate planning consideration to the connector. Finally, petitioners contended that certain land was improperly redesignated from single-family residential to multi-family and commercial use. They complain that this is inappropriate since the land is close to a school and does not lie near a major intersection. The evidence shows, however, that such redesignation was appropriate since the land is located at an intersection and lies just across the street from an existing five-acre commercial tract. Moreover, the multi-family part of the tract will serve as a buffer between the commercial use at the intersection and the existing single-family use to the south. Then, too, the proximity of a nearby school to the west will serve to reduce trip time for persons shopping in the area while dropping off or picking up children from the school. Finally, some types of commercial use in residential neighborhoods can serve valid planning purposes, and the City has already established a pattern of having some schools located near commercially designated property. The redesignation is found to be reasonable and based on appropriate planning considerations. Although no proof was submitted by petitioners regarding any other parts of the plan amendment, respondents demonstrated that all remaining parts are supported by adequate data and analysis and are in compliance. Accordingly, petitioners have failed to prove to the exclusion of fair debate that remedial amendment 94R-1 is not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the City of Hialeah comprehensive plan amendment to be in compliance. DONE AND ENTERED this 11th day of October, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3506GM Petitioners: 1-2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4-20. Partially accepted in findings of fact 5-8. 21-24. Partially accepted in findings of fact 9. Partially accepted in findings of fact 10 and 11. Partially accepted in finding of fact 4. 27-29. Covered in preliminary statement. Rejected as irrelevant. Rejected as unnecessary. 32-35. Rejected as irrelevant. 36-38. Partially accepted in finding of fact 6. 39-41. Partially accepted in finding of fact 11. 42. Rejected as unnecessary. Respondent DCA: 1-12. Covered in preliminary statement. 13. Partially accepted in finding of fact 1. 14. Partially accepted in findings of fact 2 and 13. 15. Partially accepted in finding of fact 1. 16-19. Partially accepted in findings of fact 6-8. 20-22. Partially accepted in finding of 9. 23-25. Partially accepted in findings of fact 10 and 11. 26. Partially accepted in finding of fact 6. 27. Partially accepted in finding of fact 11. 28. Partially accepted in finding of fact 6. 29-30. Partially accepted in finding of fact 10. 31-55. Partially accepted in findings of fact 13-17. Respondent City: Because the City's proposed recommended order was not timely filed, the undersigned has considered the contents of the proposed order but has not made specific rulings on each proposed finding of fact. See Sunrise Community, Inc. v. DHRS, 14 F.A.L.R. 5162 (DHRS, 1992), affirmed 619 So.2d 30 (Fla. 3rd DCA 1993). Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible, persuasive evidence, subordinate, or unnecessary to the resolution of the issues. COPIES FURNISHED: Mr. Edmond J. Gong Ms. Dana L. Clay 6161 Blue Lagoon Drive, Suite 370 Miami, FL 33126 Terrell K. Arline, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 William M. Grodnick, Esquire 501 Palm Avenue, 4th Floor Hialeah, FL 33010 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
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.
