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COLUMNS
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DCA Update |
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Kelly Martinson |
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West Beaches Neighborhood Defense Fund, Inc., et al. v. Bay County and DCA,
DOAH Case No. 06-1220GM.
Petitioners challenged numerous Bay County land development regulations (LDRs)
as being inconsistent with the County’s Comprehensive Plan. The Department
issued a Determination of Consistency, finding that all but five of the
challenged LDRs were consistent with the comprehensive plan. Petitioners
requested a hearing with the Division of Administrative Hearings regarding those
LDRs the Department determined were consistent with the County’s Comprehensive
Plan. Prior to the final hearing, two of the original Petitioners were dismissed
as parties based on res judicata because of their participation in an earlier
challenge to the County’s LDRs that had been dismissed with prejudice for being
filed untimely. After the hearing, an order was entered dismissing West Beaches
Neighborhood Defense Fund, Inc. as a party based on res judicata as the
organization was controlled by one of the Petitioners that had been dismissed
earlier. On May 24, 2007, a Final Order was issued holding that all of the
challenged LDRs were consistent with the County’s Comprehensive Plan. As of this
writing, the time period for appeal has not expired.
Gateway Southeast Properties, Inc. and City of Doral v. Town of Medley, et
al., DOAH Case Nos. 06-0918 and 06-1548, Third DCA Case No. 3D06-1718.
Gateway Southeast Properties, Inc. alleged that land development regulations (LDRs)
adopted by the Town of Medley were inconsistent with the Town’s Comprehensive
Plan. The LDRs allow any nonconforming use which serves as a public facility to
be enlarged or increased up to 15 percent of the current building and/or land
area of the use after approval by the Town Council via resolution. The
Department and subsequently, the Division of Administrative Hearings, determined
that the challenged LDRs were consistent with the Town’s Comprehensive Plan. On
May 2, 2007, the Third District reversed and remanded, holding that the Town’s
LDRs permitted the expansion of a non-conforming use which the Town’s
Comprehensive Plan destined to be phased out; therefore, it could not be
consistent. A Motion for Rehearing and Motion for Rehearing En Banc has been
filed.
Florida Wildlife Federation, Inc., et al. v. Town of Marineland, et al.,
DOAH Case No. 05-4402GM, Fifth DCA Case No. 5D06-2399.
On May 1, 2007, the Fifth District per curiam affirmed the Department's Final
Order in the case below and denied Appellee, Centex Homes,' Motion for Award of
Attorney's Fees. This case centered primarily on amendments to the Town of
Marineland's Comprehensive Plan addressing its coastal high hazard area, which
encompasses the entire Town.
Centex Homes v. Florida Wildlife Federation, et al., DOAH Case No.
06-1642F.
Following a favorable Recommended Order, Centex Homes moved for attorney's fees
against the four Petitioners and their attorney pursuant to Section 57.105, F.S.,
on the basis that their petition and arguments were frivolous. On February 23,
2007, the ALJ found all but one of their claims for fees to be without merit.
The one claim found frivolous was a challenge to a comprehensive plan policy
that had not been amended. The ALJ provided the parties with 30 days to reach
agreement on how the amount of attorney's fees would be determined. No activity
occurred within those 30 days, presumably due to the relatively minor and
insignificant impact of the allegation, therefore, an Order Closing File was
issued on March 28, 2007.
Robert Skeel, et al. v. Village of Islamorada, et al., DOAH Case No.
06-2438GM.
On April 13, 2007, the Department issued a Final Order adopting the ALJ's
Recommended Order in toto. The case involved a challenge to a Village of
Islamorada land development regulation (LDR) that sets forth the requirements
that must be met for existing vacation rentals to continue to be used as
rentals. The Petitioners argued that the LDR was unconstitutional on its face
and inconsistent with the Village's Comprehensive Plan and the Principles for
Guiding Development contained in Section 380.0552, F.S. On a Motion in Limine,
the ALJ disposed of all issues except whether the LDR was inconsistent with the
Village's Comprehensive Plan. The Recommended Order held that to the extent the
LDR had any material bearing on the Guiding Principles, it was consistent with
them.
Sierra Club and John S. Wade, Jr. v. Miami-Dade County, et al., DOAH Case
No. 03-0150GM, Third District Case No. 3D06-2544.
On March 21, 2007, the Third District per curiam affirmed the Department's Final
Order in the case below. The case involves a challenge to a Miami-Dade County
amendment that re-designates a substantial segment of Krome Road from two-lanes
to four-lanes. The amendment was found to be "in compliance."
Diane Brown and Panhandle Citizens Coalition, Inc. v. Bay County, et al.,
DOAH Case No. 06-0881GM.
This case involves a challenge to three Bay County Future Land Use Map
amendments and various amendments to the West Bay Detailed Specific Area Plan
found to be "in compliance" by the Department. The ALJ upheld the Department's
compliance determination and determined that Panhandle Citizens Coalition, Inc.
lacked standing based on the absence of a substantial local nexus. Of note, the
ALJ also held that it was acceptable, albeit counter-intuitive, for the County
to adopt a Future Land Use Map note limiting development on a property
designated General Commercial to "999 residential units and no commercial uses"
as the General Commercial category explicitly allows residential uses. The
Department's Final Order, issued on April 3, 2007, adopted the findings and
conclusions of the Recommended Order in toto.
