Collier County v. City of Naples & Department of Community Affairs, Final Order No. DCA04-GM-240 (DOAH Case No. 04-1048GM)

For over a decade, Collier County has been studying and planning transportation improvements to address traffic demands at the intersection of Golden Gate Parkway and Airport-Pulling Road. Three of the quadrants of this intersection lie within the unincorporated County; the fourth is within the City of Naples. The County ultimately accepted a recommendation that the construction of a vehicle overpass at the intersection would be the most effective method of addressing the transportation demands, and began to move forward with planning and construction of the overpass.

In 2003, the City of Naples adopted an amendment to its comprehensive plan that would restrict, but not prohibit, the construction of flyovers or overpasses in the City in favor of other planning solutions that address transportation demands. The Department published a notice of intent to find the amendment “in compliance.” Collier County filed a petition challenging the Department’s notice, and alleging that the amendment was not in compliance because it was not supported by data and analysis, was internally inconsistent with the City’s plan, and was not coordinated with the County’s plan. The basis for all of the County’s contentions was the allegation that the amendment was passed to serve the sole purpose of preventing construction of the overpass at Golden Gate Parkway and Airport-Pulling Road.

Administrative Law Judge Donald Alexander conducted a two-day hearing and entered a recommended order in favor of the Department and City. Judge Alexander rejected the County’s bedrock contention regarding the amendment, and found that the amendment did not prohibit the construction of any particular overpass but applied generally and only restricted such construction to instances where alternative planning approaches, such as at-grade improvements, were not sufficient. Based upon this finding, the Judge concluded that the County had failed to prove that the amendment “will produce substantial impacts on the increased need for publicly funded infrastructure” and, therefore, lacked standing. See, § 163.3184(1)(a), Fla. Stat. The Judge continued on the merits and rejected the County’s compliance arguments.

The Department adopted the Recommended Order en toto as the agency’s Final Order. The County timely appealed to the Second District Court of Appeal. The underlying administrative case remains pending, yet in abeyance, as the Administrative Law Judge retained jurisdiction to consider the City’s request for attorneys’ fees.

Alachua Leadership Alliance – Citizens Helping Us All, Inc. et al. v. Department of Community Affairs, DOAH Final Order No. 04-2872RU

Every seven years, local governments are required to prepare an “Evaluation and Appraisal Report” (EAR) assessing the progress of their planning efforts and changes in state law. The governments are then required to update their comprehensive plans in accordance with the EAR. If a local government fails to adopt these update amendments within the prescribed time, the Department may petition the Administration Commission to impose sanctions on the local government for this failure. See, § 163.3191(11), Fla. Stat.

In a Petition filed August 16, 2004, three individuals and one organization contended that the Department had an unadopted rule that it would never file for sanctions against a local government under this provision. Petitioners’ specific contention was that the agency had failed to seek sanctions against the City of Alachua on the basis of this alleged unadopted rule.

Administrative Law Judge William Quattlebaum conducted a one-day hearing on October 21, 2004, and thereafter entered a Final Order rejecting Petitioners’ claims. Judge Quattlebaum first concluded that none of the Petitioners had demonstrated standing to challenge the alleged non-rule policy. The Judge continued that there were no Department statements of “general applicability” that constituted an unadopted rule. The Judge finally concluded that even if Petitioners had demonstrated that the agency had some unadopted rule, there was no violation of Chapter 120 since rulemaking by the Department was not feasible and practicable.

Appeal of the Final Order was not taken, and the time for doing so has expired.

Alachua Leadership Alliance – Citizens Helping Us All, Inc. et al. v. City of Alachua and Department of Community Affairs, Final Order No. DCA04-GM-022

The Department reviewed the City of Alachua’s adopted amendments that implemented its Evaluation and Appraisal Report, found them consistent with state law, and published a Notice of Intent to find them “in compliance.” A Petition contending that the Department’s determination was in error was faxed to the agency on December 1, 2004. The facsimile transmission was not complete until after 5:00 p.m. and thus, the Petition was not deemed filed with the Department until the next day, December 2, 2005. See Rule 28-106.104(9), FAC. As December 2nd was twenty-two days after publication of the agency’s Notice, and any petitions must be filed within twenty-one days of publication, the Department dismissed the Petition with prejudice as untimely. See, §§ 120.569(2)(c) & 163.3184(9), Fla. Stat. The Department denied a subsequent motion for reconsideration. Appeal was not taken, and the time for doing so has expired.