COLUMNS

           DCA Update

    Ross Burnaman

Cooper City Land Use Amendment Found Not In Compliance By Administration Commission Sunshine Ranches Homeowners Association, et al. vs. City of Cooper City, George Lange, and Department of Community Affairs, Case No. ACC-97-006 (November 18, 1997) [DOAH Case No. 96-5558GM, Administrative Law Judge Sartin]

In this case, the Homeowners Association challenged a land use amendment to Cooper City's comprehensive plan that would affect their neighborhood character, even though the City had established a "buffer" land use between the new change and the existing neighborhood. The Administrative Law Judge determined that this buffer land use, "in conjunction with other measures" - specifically, development agreements and land development regulations - was adequate to ensure land use compatibility in the area. The Governor and Cabinet, acting in its capacity as the Administration Commission, rejected that approach, and stated in its Final Order:

"Planning" requires consideration of the impact of the plan amendment itself. Therefore, the Commission rejects the conclusions of law relied upon by the ALJ to justify consideration of measure that might be taken outside the plan itself. While the "Community Facilities" designation may be an appropriate buffer to commercial use, it cannot be made appropriate "in conjunction with other measures," unless those other measures exist within the four corners of the plan. Reliance on development agreements and development regulations that would apply to future development orders is rejected as adequate consideration providing "proper measures" or "conditions imposed" on land to bring a proposed land use designation in compliance. A future land use map amendment that creates a land use incompatibility is not in compliance based on the potential that "compatibility" requirements will be applied to subsequent development orders. Future land use map amendments themselves, as individual planning decisions, must reflect and implement the plan's goals, objectives and policies.

Metro-Dade County Amendment to Land Use Category Found Not In Compliance By Administration Commission and Third District Court of Appeal

Village of Key Biscayne v. Department of Community Affairs and Metropolitan Dade County and Marine Exhibition Corporation, Case No. ACC-97-007, November 18, 1997 [DOAH Case No. 95-0250GM, Administrative Law Judge Sartin; Third District Court of Appeal Case No. 96-2708, July 2, 1997].

This case is commonly referred to as the "Seaquarium Case," and concerns a proposed revision to the Metro-Dade County Comprehensive Development Master Plan's definition of the "Parks and Recreation" land use category. The subject plan amendment would have expanded the allowable uses to specifically identify the Seaquarium as a Parks and Recreation site and to authorize that particular facility to "relocate, expand and increase the variety of its educational, recreational and entertainment attractions" by allowing "recreational and educational uses, restaurants, gift shops, marine or water amusement, and environmentally-related theaters."

The Department's notice to find the proposed plan amendment to be "in compliance" was challenged by the Village of Key Biscayne. The Third District Court of Appeal reversed the Department's final order finding the amendment to be "in compliance," on the basis that the amendment lacked an intensity standard, as required by Section 163.3177(6)(a), F.S.

The matter was referred to the Administration Commission for entry of a final order. The Commission adopted the appellate court's opinion and further ordered that if the County elected to override that decision and make the amendment effective nevertheless, sanctions would be imposed in accordance with Section 163.3184(11), F.S.

Fourth District Court of Appeal Affirms Final Order on Royal Palm Beach Map Amendment

Royal Professional Builders, Inc. v. Dept. of Community Affairs, et al., Case No. 97-3042 (July 8, 1998), DOAH Case No. 95-5899GM (Administrative Law Judge Sartin).

The Fourth District Court of Appeal, affirmed, per curiam, the Department's Final Order that determined amendments to the Village of Royal Palm Beach Comprehensive Plan to be "in compliance."

Appellant was the developer of the northern 403 acres of a vested planned unit development known as "Saratoga." It challenged a future land use map amendment that was requested by the owners/developers of the southern 503 acres of the PUD and approved by the Village. The amendment eliminated a planned golf course and roadway, increased open space, and reconfigured the mix of residential land uses within the 503 acres.

The Department's Final Order rejected multiple challenges to the amendment, and adopted the Administrative Law Judge's Recommended Order with minor changes.

On appeal, Royal Professional Builders, Inc. claimed that the local plan amendment application included inaccurate statements and thus warranted reversal, as did the Village's failure to require that an environmental assessment be filed along with the plan amendment application.

The court did not articulate a basis for affirming the Final Order, but the court did award attorney's fees to the Village and to Crestwood Lakes Associates, Crestwood Limited Partnership and MT. Crestwood Corporation, the owners/developers of the southern 503 acres.

Despite Stipulation Among the Parties, First District Court of Appeal Determines that Local Homeowners' Association Does Not Have Standing to Challenge DRI Development Order

Edgewater Beach Owners Association, Inc., v. Walton County, et al., 1st District Court of Appeal Case No. 97-1590, Opinion filed May 12, 1998.

This case involved an appeal of a final order issued by the Florida Land and Water Adjudicatory Commission (FLWAC) upholding a challenge by the homeowners' association (EBOA) to a DRI development order issued to KPM, Ltd., and Grand Dunes, Ltd. While FLWAC accepted the parties' stipulation that EBOA had standing to challenge the subject development order, the District Court vacated the FLWAC order and remanded the matter with directions to dismiss the case due to lack of standing.

The District Court determined that the DRI review process sets up a new cause of action, and that the Legislature has enumerated the parties who may have standing to appeal a DRI development order: the property owner; the developer; and the state land planning agency (DCA). Current case law supports this view of standing that is limited to the parties identified in s.380.07(2), F.S., and the Court rejected the parties' stipulation to allow a new or different category of persons to be accepted as a party. The Court held that standing in DRI appeals is jurisdictional, and that "jurisdiction ... cannot be conferred by consent."

In any event, the Final Order at issue in this case clearly establishes FLWAC's policy on the requirement that modifications to vested DRI development orders be consistent with the adopted local government comprehensive plan. Noting that each DRI proceeding is "unique" and that vested rights are "complex," FLWAC determined that the extent of vesting is conferred by the terms of the development order itself and that a DRI development order may vest only that development that it authorizes. Thus, any change to the vested status of a development order, i.e., a change in the project that has not been approved by the local government, must comply with the underlying comprehensive plan. See: 380.06(14)(b); 163.3194(1)(a), Florida Statutes.

The FLWAC Final Order cites to and confirms the position taken by the Department in several declaratory statements, that

...the law is clear that whether proposed changes to a DRI are substantial deviations or not under Section 380.06(19), all development orders and actions taken by local government after plan adoption must be consistent with the plan, pursuant to [Sections] 163.3194(1)(a) and (b). DRI development orders amending the original order to incorporate changes after plan adoption would also have to meet that standard. General Development Corporation v. State Department of Community Affairs, Declaratory Statement, Case No. 88-DS-1, at pages 18-19; see also, Huckleberry Land Joint Venture v. State Department of Community Affairs, Declaratory Statement, Case No. 89-DS-6; Gulfstream Development Corporation v. Florida Department of Community Affairs, Clarification of Declaratory Statement, Case No. 88-DS-2.

Administration Commission Approves Miami-Dade County's Reuse Plan for Homestead Air Force Base with Amendments and Conditions

Sierra Club, Inc. et al. v. Miami-Dade County, AC Case No. MBR-98-001 (Administration Commission, April 23, 1998).

On March 24, 1998, the Administration Commission considered the Department's January 21, 1998, Report on the challenges to Miami-Dade County's Homestead Air Force Base Reuse Plan, and a March 6, 1998, Petition for Formal Administrative Hearing filed by Sierra Club, Inc. and the Tropical Audubon Society.

Section 288.975, Florida Statutes, provides for an optional, expedited planning and review process for reuse of former military bases in lieu of traditional comprehensive plan and development of regional impact procedures.

After the County adopted the base reuse comprehensive plan amendments under the optional process, mediation and informal hearings were conducted to attempt to resolve concerns by environmental groups, Biscayne National Park, Everglades National Park, the South Florida Water Management District and the South Florida Regional Planning Council.

Both the Department and the Administration Commission declined to grant requests to refer the matter to the Division of Administrative Hearings for formal proceedings.

The Final Order grants approval for no more than 530,000 square feet of development to the North-Northwest of the existing runway, including 180,000 square feet of redevelopment. No development may commence until submission and approval of a stormwater management plan, a wildlife/habitat management and mitigation plan, and a noise management and mitigation plan. Additional conditions were provided regarding the reduction in stormwater discharge, the timing of plan reviews, and the requirement that the County amend its comprehensive plan to be consistent with the approval granted by the Final Order.

The Final Order has been appealed to the Third District Court by Sierra Club, et al. (Case No. 98-1251).