www.ELULS.org - Section Reporter

These cases involved challenges to two actions of the University of Central Florida’s (“UCF”) Board of Trustees. The first challenged numerous amendments to UCF’s Campus Master Plan adopted on November 30, 2004 and which became known as the 2005-2015 CMP Amendment (“CMP Amendment”). The second challenged a “major” amendment to the 2005-2015 CMP Amendment which was adopted on November 9, 2005, relating to the addition of an on-campus football stadium (“Stadium Amendment”).

The Petitioner, who owns a home in a neighborhood adjacent to UCF’s campus, represented himself in the matter. Petitioner brought the case because of concerns about the building of a new football stadium on UCF’s property, including environmental and light and noise impacts on neighboring properties. Petitioner additionally charged that the UCF Board of Trustees and other UCF staff acted improperly when it approved projects and held public meetings.

The administrative hearing was held in Orlando on March 6-10 and 13-15. The Department’s ultimate findings were that the Petition in Case No. 06-0328 was not timely filed, and that the Campus Master Plan and Stadium Amendments are in compliance with Section 1013.30, Florida Statutes, and Rule 6C-21, Florida Administrative Code.

A notice of appeal has been filed with the Fifth District Court of Appeals. As of this writing, no briefing schedule has been established. For further information about this case, please contact Assistant General Counsel Christine Cosby or Assistant General Counsel Leslie Bryson at 850.488.0410.

Mark Smith v. City of Marathon, et al., DOAH Case No. 04-3500, Third DCA Case No. 3D05-1533.

Mark Smith filed an untimely one page letter objecting to the Cumulative Notice of Intent (NOI) for the Marathon Comprehensive Plan and the designation of his parcels as “residential low.” The Department issued a final order dismissing the petition with prejudice due to the petition’s failure to comply with the requirements of Rule 28-106.201, Florida Administrative Code. Specifically, the Petition did not request a hearing to challenge the Department's "in compliance" finding, did not include the name and address of each affected agency, did not include an explanation of how the petitioner's substantial interest would be affected by the agency determination and did not include a concise statement of the ultimate facts alleged, including the specific facts the Petitioner contended warrant a finding that the Amendment is not "in compliance." Additionally the Petition did not contain a demand for relief. Most importantly, the Petition was deficient under Section 163.3184(9)(a), Florida Statutes, because it failed to file the petition within the 21 day period after publication of the NOI, thereby requiring dismissal with prejudice under Section 120.569(2)(c), Florida Statutes, as it conclusively appears from the fact of the petition that this defect can not be cured.

After several extensions of time to file an initial brief, Petitioner filed a Petition for Writ of Certiorari and Declaratory Judgment. The Third District Court of Appeals issued an Order treating the appeal as a petition for writ of certiorari, granted the petitioner's motion to supplement the record, and set oral argument.

Petitioner argued that equitable tolling applied as he timely filed the letter with the Division of Administrative Hearings which was returned the same day whereupon he overnight mailed the letter to DCA on the 21st day (Friday) only to be received by the DCA clerk on Tuesday due to the Memorial Day holiday.

The District Court denied the petition for writ of certiorari and declaratory judgment on the merits. For more information on this case, please contact Assistant General Counsel Richard Shine at 850.488.0410.

Latest Section News:

July 2006

Copyright © 2012, The Environmental and Land Use Law Section of The Florida Bar