FIRST DISTRICT COURT OF APPEAL AFFIRMS ADMINISTRATION COMMISSION’S BROWARD SCHOOL CONCURRENCY ORDER

Economic Development Council of Broward County, Inc. et al. v. Florida Department of Community Affairs, et al., (Fla. 1^st DCA, Case No. 98-989, May 21, 1999).

     On May 21, 1999, the First District Court of Appeal affirmed, per curiam, the Governor and Cabinet’s Final Order determining that the Broward County School Concurrency comprehensive plan amendments were not "in compliance" with Chapter 163, Part II, Florida Statutes. The Final Order found that the amendments did not present a financially-feasible plan to ensure that sufficient capacity would be in place to meet the adopted levels of service as required by Section 163.3180(1)(b)1, F.S., and that the amendments were not adequately supported by data and analysis. The appeal was filed by the Economic Development Council of Broward County, Inc. and the Building Industry Association of South Florida.The panel that decided the case included Chief Judge Barfield and Judges Booth and Wolf.

FIFTH DISTRICT COURT OF APPEAL REVERSES DEPARTMENT’S ORDER FINDING SUMTER COUNTY FUTURE LAND USE MAP CHANGE "IN COMPLIANCE"

Sumter Citizens Against Irresponsible Development, et al. v. Department of Community Affairs, Sumter County and Pringle Communities, Inc., Fla. 5^th DCA, Case No.98-1204, March 26, 1999).

     On March 26, 1999, the Fifth District Court of Appeal reversed and remanded the Department’s Final Order that determined that Sumter County’s comprehensive plan amendment was "in compliance" with Chapter 163, Part II, F.S.The Department had agreed with citizen-challengers that the amendment did not expand the urban expansion area, but the Department refused to apply a policy that required a 50% open space ratio outside the urban expansion area since the citizen-challengers did not raise the issue in their petition for hearing.The court stated that other findings of fact in the Final Order may have been affected by the ALJ’s erroneous finding that the amendment expanded the urban expansion area, and remanded the matter to the Department for further proceedings. Associate Judge Blackwell White authored the opinion in which Judges Goshorn and Antoon joined. On April 22^nd, the Department referred the matter back to the ALJ.

SMALL-SCALE COMPREHENSIVE PLAN AMENDMENTS SAID TO BE SUBJECT TO REVIEW UNDER THE "FAIRLY DEBATABLE" STANDARD

Fleeman v. City of St. Augustine Beach, 1998 WL 880601 (Fla. 5^th DCA, Case No. 98-2135, December 18, 1998).

     A landowner sought to challenge the City’s action on his small-scale plan amendment in circuit court by petition for certiorari and the court dismissed the case. The landowner appealed.The Fifth District Court of Appeal reviewed Section 163.3184(7), F.S., describing the small-scale amendment process within the context of the Florida Supreme Court’s decision in Martin County v. Yusem, 690 So.2d 1288 (Fla. 1997). Yusem held that plan amendments are legislative in nature and therefore subject to review under the forgiving "fairly debatable" standard, but did not resolve the issue as to small-scale plan amendments. Id. at 1293, note 6.The Fifth District could not discern any good reason to treat small-scale plan amendments differently than other plan amendments and denied relief to the landowner. The Department was not a party to the case but the decision should be of interest to local governments and to lawyers who practice land use law.

CITY OF VERO BEACH REMEDIAL PLAN RECOMMENDED TO BE FOUND "IN COMPLIANCE" - EXCEPTIONS FILED - CASE REMANDED TO DOAH

Lost Tree Village Corp. v. City of Vero Beach and Department of Community Affairs, DOAH Case No. 92-6784GM (Administrative Law Judge Sartin, February 19, 1999).

     A developer challenged the future land use map (FLUM) designation for several islands located within the Indian River Lagoon. The islands were designated as Environmentally Significant with a base residential density of 0.2 units per acre. Lost Tree Village Corporation claimed that the FLUM designation was not supported by data and analysis, was internally inconsistent, contravened the State Comprehensive Plan’s property rights protection policy and violated various statutes and rules. The developer also challenged the City’s policy restricting the connection of unbridged river islands to City rights-of-way. The ALJ found ample data and analysis to support the FLUM designation as well as the policy restricting bridge connections to rights-of-way and rejected the other alleged deficiencies in the City’s remedial plan. The Recommended Order recommended that the remedial plan be found "in compliance." Lost Tree Village Corporation and the Department filed exceptions to the Recommended Order. On May 14, 1999, the Department remanded the case, along with DOAH Case No. 90-5021GM, to the Division of Administrative Hearings, for further findings of fact.

TOWN OF INDIAN RIVER SHORES PLAN RECOMMENDED TO BE FOUND "IN COMPLIANCE" EXCEPT FOR POLICY RESTRICTING DEVELOPMENT OF UNBRIDGED ISLANDS - EXCEPTIONS FILED - CASE REMANDED TO DOAH

Lost Tree Village Corp. v. Town of Indian River Shores and Department of Community Affairs, DOAH Case No. 90-5021GM (Administrative Law Judge Sartin, February 19, 1999).

     A developer challenged the future land use map (FLUM) designation for several islands located within the Indian River Lagoon. The islands were designated as Residential Conservation/Environmentally Sensitive Islands with a base residential density of 1 unit per five acres. Lost Tree Village Corporation claimed that the FLUM designation was not supported by data and analysis, was internally inconsistent, contravened the State Comprehensive Plan’s property rights protection policy and violated various statutes and rules. The developer also challenged the Town’s wetlands policy prohibiting development of unbridged islands within the Indian River Lagoon until federal and State permits for bridge construction were issued.The Administrative Law Judge found ample data and analysis to support the FLUM designation for the islands and rejected other challenges to the FLUM. However, because he found that bridges could not be built to connect the islands with the main barrier island, the ALJ’s Recommended Order stated that the wetlands policy conflicted with the State Comprehensive Plan property rights protection policy, Section 187.201(15)(a), F.S. The Recommended Order recommended that the Town’s plan be found "in compliance", except for Policy 1-1.1.6. Lost Tree Village Corporation, the Town and the Department filed exceptions to the Recommended Order. On May 14, 1999, the Department remanded the case, along with DOAH Case No. 90-5021GM, to the Division of Administrative Hearings, for further findings of fact.

COLLIER COUNTY EVALUATION AND APPRAISAL REPORT-BASED PLAN AMENDMENTS TO BE CONSIDERED BY ADMINISTRATION COMMISSION

Department of Community Affairs, Collier County Audubon Society, Inc. and Florida Wildlife Federation v. Collier County and Collier County School Board, D.O.A.H. Case No. 98-0324GM (Administrative Law Judge Meale, March 19, 1999).

     On June 22, 1999, the Administration Commission is set to consider a Recommended Order and recommended remedial actions that pertain to Collier County’s adoption of numerous comprehensive plan amendments. The amendments are said to be based upon the County’s Evaluation and Appraisal Report, a periodic evaluation of planning efforts mandated by Section 163.3191, F.S. The Recommended Order recommended that the amendments be found "not in compliance." No exceptions to the Recommended Order were filed. The Department’s Petition alleged numerous deficiencies with the County’s plan amendments including: issues related to school siting criteria; lack of groundwater protection provisions, including deficient storage tank and industrial septic tank controls; inadequate provisions concerning drainage; insufficient data foundation to support affordable housing policies; insufficient consideration to special protections afforded the South Golden Gate Estates area; lack of support for revision of Natural Resource Protection Area designations; lack of analysis of evacuation issues; inaccurate designation of the coastal high hazard area; failure to protect wetlands in non-agricultural development; lack of adequate protection for listed wildlife species; insufficient consideration of land uses in wellfield protection areas; and inconsistencies with the State Comprehensive Plan. The Administrative Law Judge recommended in favor of the Department concerning all issues raised in the proceeding. Prior to the June 22^nd Cabinet meeting, the Department will issue its recommendations as to remedial actions that the Administration Commission could specify could be adopted by the County to bring the comprehensive plan in compliance."