David McSherry, et al. v. Department of Community Affairs, DOAH Case No. 03-2711RU

     The Department, Alachua County, and various parties in the case styled Preserving Rural Property Values, Inc. et al. v. Alachua County, DOAH Case No. 02-2676GM, participated in informal mediation in an attempt to reach settlement. The Board of County Commissioners was scheduled to consider the Settlement Agreement that arose out of this mediation in July 2003. Certain Intervenors in that case alleged that the Agreement could not be considered by the Board because of alleged flaws in the mediation process, including purported violations of the Sunshine Law. On July 3, 2003, counsel for the Department wrote an e-mail to the County attorney stating, in part, that “you may advise the Commission, if you wish, that the Department is unaware of any violation of Florida Statutes relating to the mediation and settlement negotiations.”

     The parties who had alleged that the settlement process was flawed then filed a petition with the Division of Administrative Hearings pursuant to Section 120.54(1)(a), Florida Statutes, and therein alleged that the e-mail from counsel for the Department represented an unpromulgated rule regarding settlement procedures. The Department filed a Motion for Summary Final Order, and argued that the statement of counsel was not an unpromulgated rule. Administrative Law Judge Don W. Davis agreed, and entered a Summary Final Order on August 18, 2003. Judge Davis found that “[c]ounsel’s statement of DCA’s position is nothing more than his legal opinion and, without more, does not rise to the level of stated agency policy.”

     As of this writing, Petitioners had filed a Second Amended Notice of Appeal with the First District Court of Appeal.  For more information on this case, please contact Moses Williams, Assistant General Counsel.

Parsons v. Putnam County, et al., DOAH Case No. 02-1069GM

     In rural Putnam County along Highway 17 South is a community known as Satsuma. In this general area on the west side Highway 17 is the Putnam County Speedway. The Speedway was created sometime between 1970 and 1972, and pre-dates the County’s comprehensive plan. When the County adopted its comprehensive plan, all of Satsuma, including the Speedway, was designated “Rural Residential.” Because racetracks are not allowed in the Rural Residential land use category, the Speedway became a nonconforming use. The County’s comprehensive plan and zoning code encourage the eventual elimination of nonconforming uses through restrictions on improvements and expansions.

     In the mid-1990's, racing returned to the Speedway. Along with this racing came improvements to the track that were alleged to violate the plan and code provisions that restrict such undertakings for nonconforming uses. The County chose to address this issue by changing the future land use designation of the Speedway from Rural Residential to Commercial, the latter designation being one that allows racetracks. The Speedway would no longer be a nonconforming use if it was designated Commercial, and would be eligible for the disputed expansions. The Department published a notice of intent to find this redesignation on the comprehensive plan’s future land use map “in compliance.”

     Dr. Francis Parsons, a neighbor of the track, filed a petition for formal hearing regarding this redesignation. Dr. Parsons argued that the Speedway was a nonconforming use, and was not properly redesignated to Commercial. The Department, County, and the Speedway argued that it was within the discretion of the County to recognize and legitimize a pre-existing use. These parties also presented evidence that the original designation of the Speedway as Rural Residential was in error.

     Administrative Law Judge Charles A. Stampelos found these arguments unpersuasive, and entered a Recommended Order concluding that the redesignation was not “in compliance.” Judge Stampelos found that the Speedway was not compatible with the surrounding neighborhood, was in fact a nonconforming use, and that the County did not have the discretion to legitimize such a use. The Department of Community Affairs agreed with Judge Stampelos, and entered a Determination of Non-Compliance. This Determination was forwarded to the Administration Commission for final agency action.

     On September 23, 2003, the Putnam County Board of County Commissioners rescinded the redesignation of the Speedway to Commercial, and reassigned the Rural Residential category to the parcel. The proceeding was thereby rendered moot.

     For more information on this case, please contact Shaw Stiller, Assistant General Counsel.

Melzer, et al. v. Martin County, et al., DOAH Case No. 02-1014GM

     On December 11, 2001, the Martin County Board of County Commissioners adopted numerous changes to their comprehensive plan. The Department published a notice of intent to find these amendments “in compliance.” Several persons and entities challenged various of these adopted amendments. As a result of negotiations before, during, and after the final hearing, many portions of the disputes were settled, and only two issues were addressed by the Administrative Law Judge; that is, school siting and public facilities.

     The school siting plan amendment creates a process for choosing new school sites that balances federal and state guidelines for school siting, proximity to existing or planned population centers, maximization of the use of capital facilities such as transportation, potable water and wastewater facilities, proximity to complementary uses such as parks and libraries, and avoidance of negative impacts on wetlands and upland habitat. The public facilities plan amendment waives certain wetland and upland habitat protection policies for stormwater projects, including those constructed as part of the Comprehensive Everglades Restoration Plan. The public facilities plan amendment also creates an alternative method for siting certain public facilities that balances project specific requirements, impacts on environmental resources, future land use map designation, and relative cost of alternative sites.

     Administrative Law Judge Charles A. Stampelos rejected Petitioners’ arguments that these amendments created internal inconsistencies in the Martin County comprehensive plan and were not supported by data and analysis, and recommended that the amendments be found “in compliance.” On September 26, 2003, the Department entered a Final Order deeming the amendments “in compliance.”   For more information on this case, please contact Shaw Stiller, Assistant General Counsel.