STEVEN M. SEIBERT APPOINTED SECRETARY

     Steve Seibert has come full circle in his career as lawyer, mediator and elected official. From his first job out of law school in 1980 as a law clerk for the Department of Community Affairs to his 1999 appointment as Secretary, Steve brings a successful knack for reaching consensus and thinking outside the box.

     Steve is a 1977 graduate of The George Washington University where he earned a B.A. in Philosophy and International Affairs and is a 1980 graduate of the University of Florida Law School. After serving at DCA originally, he returned to his Pinellas County roots to serve in the County Attorney’s office for five years. In 1986, Steve joined the Johnson, Blakely law firm in Clearwater. He is a certified mediator and has gained a statewide reputation for helping solve contentious environmental and land use disputes. Steve was elected to the Pinellas County Commission in 1992. He also served as Chair of the Tampa Bay Regional Planning Council, Chair of the Metropolitan Planning Organization, Chair of the Agency on Bay Management, and as a member of the Tampa Bay National Estuary Program and Tampa Bay Water Board. He is also a member of the Leadership Florida, Class XIII (1995).

     Today, Steve oversees the department with a distinct cadre of programs and initiatives touching on critical functions in local communities, including economic development, emergency management and community planning. Its programs are diverse in nature, but coalesce around one common goal – to help Floridians create safe, vibrant, sustainable communities.

LOCAL GOVERNMENT COMPREHENSIVE PLANNING

COURT AFFIRMS DEPARTMENT’S ORDER UPHOLDING MIAMI BEACH REDEVELOPMENT PLAN AMENDMENTS. Kent Harrison Robbins and Altos Del Mar Dev. Corp. v. Department of Community Affairs and City of Miami Beach, Case No. 98-38 (Fla. 3d DCA Oct. 21, 1998).

     The Third District Court of Appeal affirmed, per curiam, the Department’s Final Order finding amendments to the Miami Beach Comprehensive Plan to be "in compliance" pursuant to Section 163.3184(1)(b), Florida Statutes.

     The City’s amendments reflected a strategy of "down-planning" and redevelopment in the heavily-urbanized North Shore area (the Altos Del Mar and Harding Township/South Altos Del Mar Historic Districts). The Department’s objections to 1994 amendments to implement this strategy were resolved by a compliance agreement. In 1996, the City adopted the required remedial amendments whereby the Future Land Use Map was amended to change parking and public facility uses to a low-density multi-family residential land use in a 13-acre area, and to eliminate a dual designation of single-family residential/recreation-open space in an 11-acre area such that only single-family use was allowed.

     Appellants unsuccessfully argued that the amendments would facilitate conversion of public parklands and open space to private development and would impair public access to the beach by limiting available vehicle parking.

     The panel consisted of Chief Judge Schwartz and Judges Gersten and Green.

CHANGE TO SUMTER COUNTY FUTURE LAND USE MAP FOUND "IN COMPLIANCE." Sumter Citizens Against Irresponsible Dev., et al. v. Department of Community Affairs, Sumter County and Pringle Communities, Inc., DCA 98-051-FOF-GM (April 3, 1998) [DOAH Case No. 96-5917GM, Administrative Law Judge Alexander].

     The Department rejected a challenge to Sumter County’s amendment of its future land use map to change the designation of a 510-acre parcel from Agriculture to Planned Unit Development.

     Administrative Law Judge Donald Alexander’s February 26, 1998, Recommended Order stated that the amendment was "in compliance" under Section 163.3184(9)(a), Florida Statutes. The Department’s Notice of Intent had contained a preliminary "in compliance" finding.

     The Department’s Final Order rejected Petitioners’ Exceptions to the Recommended Order that the amendment was not properly supported by data and analysis, was inconsistent with other plan provisions intended to protect agricultural lands generally and adjacent agricultural lands specifically, and would constitute urban sprawl. The Department agreed with the Petitioners’ assertion that the amendment failed to expand the county’s urban expansion area to include the parcel and another area.

     Petitioners appealed to the 5^th District Court of Appeal. The Case No. is 98-1204. The case was argued on November 12, 1998, before Judges Goshorn, Antoon, and Associate Judge Alice White. No opinion has been issued.

HILLSBOROUGH COUNTY FLUM AMENDMENT REDUCING INTENSITY ON 253 ACRE PROSPECTIVE REGIONAL MALL SITE FOUND "IN COMPLIANCE." Nick Geraci, Peter Geraci, and Advanced Leasing and Development, Inc. v. Department of Community Affairs, Hillsborough County, Sierra Club, Inc., Dr. Richard Hoffman and Bonnie Hoffman, DCA 99-GM-003 (Jan. 12, 1999).

     The owners of a 253-acre parcel and the contract vendee of that parcel for the prospective development of a regional mall at the northeast quadrant of the intersection of Dale Mabry and Van Dyke Road challenged the Department’s compliance determination for County Ordinance 94-10, adopted October 27, 1994.

     The Ordinance constituted an Evaluation and Appraisal Report-based (EAR-based) amendment to the comprehensive plan, including the Future Land Use Map (FLUM), that was also undertaken in furtherance of the remedial measures described in a 1993 Final Order issued by the Administration Commission finding the County’s Comprehensive Plan, as amended, was not then "in compliance."

     The Geraci parcel had been designated as Regional Commercial (RC), but the Ordinance eliminated that land use category and established a Community Mixed Use-12 (CMU-12) designation on the parcel. CMU-12 establishes a Floor Area Ratio of .5 for office uses, a maximum 650,000 square foot limitation on retail uses and a maximum residential density of 12 units per gross acre. The challenge to the Ordinance was limited to the imposition of CMU-12 on the parcel.

     After a hearing, the Administrative Law Judge recommended that the Department enter a Final Order finding the amendment "in compliance." Petitioners filed exceptions, mostly directed at the manner in which the Administration Commission’s Final Order was considered

     The Department’s Final Order denied all of the exceptions and found the amendment "in compliance."

AREA OF CRITICAL STATE CONCERN PROGRAM

DEPARTMENT’S FINAL ORDER FINDING COLLIER COUNTY AMENDMENTS TO BIG CYPRESS AREA OF CRITICAL STATE CONCERN OVERLAY "IN COMPLIANCE" AFFIRMED BY FIRST DISTRICT COURT. Environmental Confederation of Southwest Fla., Inc., et al. v. Department of Community Affairs, Collier County, Barron Collier Partnership, et al., No. 98-00206 (Fla. 1^st DCA December 2, 1998).

     The Department’s Final Order found Collier County’s July 23, 1996, amendments to the Future Land Use Element (FLUE) "in compliance." The challenged amendments reinstated three agricultural exemptions applicable in the Big Cypress Area of Critical State Concern (ACSC) portion of Collier County. The exemptions are to the ACSC overlay to the Future Land Use Map described in the FLUE.

     The Final Order concluded that while the "agricultural exemption" to the definition of "development" in Section 380.04(2)(d), Florida Statutes. [and Section 163.3164(6), Florida Statutes], does not apply to the requirements of Section 163.3177(6)(a), Florida Statutes, that require agricultural uses to be appropriately depicted on the Future Land Use Map, the exemption could properly be applied to the textual goals, objectives or policies that regulate specific development activities such as site alteration, drainage and land clearing and which are limited in application to agricultural activities.

     On appeal, the Confederation and Mr. Beardsley alleged numerous procedural irregularities (e.g., no basis for "non-rule policy," illegal supplemental findings of fact) and challenged the constitutionality and application of the definition of "development" as related to the agricultural exemption. The court allowed 1000 Friends of Florida, Inc. to file an amicus curiae brief on behalf of the environmentalists.

     The First District Court of Appeal affirmed the Final Order, per curiam, without elaboration for the basis of its decision (Judges Booth, Benton and Padovano).

SECOND DISTRICT COURT REJECTS APPEAL OF ORDER DISMISSING CHALLENGE TO ADMINISTRATION COMMISSION’S BIG CYPRESS AREA OF CRITICAL STATE CONCERN RULES. Sewell H. Corkran v. Administration Comm’n, Case No. 97-02169 (Fla. 2^nd DCA Nov. 13, 1998).

     Mr. Corkran appealed the Division of Administrative Hearings’ Final Order that dismissed his challenge to Rules 28-25.004 and 28-25.006(1), Florida Administrative Code. The Administration Commission’s 1973 rules authorized an agricultural exemption to the Big Cypress Area of Critical State Concern (ACSC) restrictions, and address the maximum site alteration (generally the lesser of 10% or 2,500 square feet), respectively.

     Mr. Corkran contended that the agricultural exemption was inconsistent with the maximum site alteration rules since it allowed clearing of land that could be converted to non-agricultural uses in excess of that permitted to protect the Big Cypress.

     The Second District Court of Appeal affirmed, per curiam, the Final Order and subsequently denied rehearing. The panel consisted of Acting Chief Judge Campbell, and Judges Northcutt and Green.

DEPARTMENT APPROVES MONROE COUNTY VACATION RENTAL ORDINANCE FOR FLORIDA KEYS AREA OF CRITICAL STATE CONCERN – FINAL ORDER APPEALED TO THIRD DISTRICT COURT. John Rathkamp, Monroe County Vacation Rental Managers, Inc., Lower Keys Chamber of Commerce, and Marathon Chamber of Commerce v. Department of Community Affairs and Monroe County. Final Order No. DCA 98-OR-184 (Dec. 4, 1998).

     The County adopted the Vacation Rental Ordinance (94-1997) on February 3, 1997, and submitted it to the Department for review pursuant to Sections 380.05(6) and 380.0552(9), Florida Statutes, governing the review of land development regulations in the Florida Keys Area of Critical State Concern (ACSC). The Ordinance was adopted after a referendum whereby a slim majority of citizens voted in favor of restricting transient rentals under 28 days in improved subdivisions.

     The Ordinance prohibits dwelling unit rentals under 28 days in duration in certain areas of unincorporated Monroe County that are assigned four land use designations; it conditionally allows such rentals in other land use designations under permit; it prohibits such rentals in other areas unless the parcels are in gated communities that have controlled access and an owner’s association that regulates or manages the vacation rental uses; and it establishes a new Improved Subdivision-Tourist Housing District whereby conditional vacation rentals are allowed. Moreover the ordinance contains a grandfathering provision for the offshore island district and establishes restrictions for the Recreational Vehicle District

     The Department’s initial Order finding the Ordinance to be consistent with the Principles for Guiding Development for the Florida Keys ACSC was challenged by an individual and three organizations. The Administrative Law Judge issued a Recommended Order that recommended that the Department issue a final order finding that the Ordinance was consistent with the Principles. All parties filed exceptions to aspects of the Recommended Order.

     The Department’s last Final Order denied most of the exceptions. However, a typographical error was corrected and the agency adopted substituted Conclusions of Law confirming the applicability of Section 380.05(6), Florida Statutes, to the Ordinance and the consistency of the Ordinance with that statute; establishing the Department’s burden of proof in the proceeding; and a substituted finding and companion conclusion of law that Petitioners had waived the opportunity to challenge the Ordinance’s consistency with the comprehensive plan, but that such a challenge could have properly been considered for consistency with the Principles.

     In late December, 1998, Petitioners appealed the Final Order to the Third District Court of Appeal (Case No. 98-3383), where the matter is now pending.

DEVELOPMENT OF REGIONAL IMPACT LITIGATION

FLAWAC FINAL ORDER ADOPTS SETTLEMENT AND RECOMMENDED ORDER IN APPEAL OF AMENDMENT TO CHARLOTTE COUNTY DEVELOPMENT ORDER FOR THE RIVERWOOD DEVELOPMENT OF REGIONAL IMPACT. Department of Community Affairs v. Charlotte County, MRP Land Trust, and Riverwood Land Dev. Co. Ltd., Final Order No. LW-98-034 (Nov. 24, 1998).

     The Florida Land and Water Adjudicatory Commission (FLAWAC), approved a settlement agreement to resolve the Department’s appeal of Charlotte County’s approval of two development orders modifying the 1990 Master Development Order for the Riverwood Development of Regional Impact (DRI).

     The Riverwood DRI encompasses about 1,265 acres, approximately 67.6 acres of which was excluded from the first development increment due to the presence of an endangered species -- the bald eagle. Subsequent to the 1990 Order, the United States Fish and Wildlife Service determined that the nest had been abandoned and the owner/developer sought, and obtained, development approval for the 67.6 acre area, among other changes.

     The Department appealed to FLAWAC, which referred the matter to the Division of Administrative Hearings. After a hearing, the Administrative Law Judge recommended that a final order be entered finding Resolution Nos. 97-0870A0 and 97-0860A0 inconsistent with Chapter 380, Florida Statutes, Chapter 9J-2, Florida Administrative Code, and with a Bald Eagle Management Plan. Exceptions were filed.

     The parties were able to resolve the appeal with a settlement whereby the owner/developer would record conservation easements on two parcels (20.3 acres and 27.09 acres, respectively) and work with the Florida Game and Fresh Water Fish Commission to prepare a management plan for the two parcels. In addition, the Findings of Fact and Conclusions of Law in the Recommended Order were adopted, and development on the 67.6 acres was authorized subject to the settlement agreement and, to the extent consistent with the agreement, the Recommended Order.

MILITARY BASE REUSE

THIRD DISTRICT COURT REJECTS ADMINISTRATION COMMISSION ORDER APPROVING MIAMI-DADE COUNTY’S HOMESTEAD AIR FORCE BASE REUSE PLAN. Miami Sierra Club and Tropical Audubon Soc’y v. Administration Commission and Miami-Dade County, 24 Fla. L. Weekly D9 (Fla. 3d DCA Dec.17, 1998).

     The court reversed and remanded the Governor and Cabinet’s Final Order that had conditionally approved the County’s plan for the reuse of the former Homestead Air Force Base property, primarily because of the lack of a Supplemental Environmental Impact Statement (EIS) required under the National Environmental Policy Act (NEPA).

     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 DRI procedures. However, as the court noted, the Act requires reviewing agencies to make every effort to rely upon NEPA documentation in preparation and review of base reuse plans. Since the federal government had determined that a Supplemental EIS was required prior to conveyance of the property, it was premature for the County to develop the base reuse plan (and for the Administration Commission to approve the plan).

     Moreover, the court rejected the conditional aspects of the Order that required that a number of environmental management plans be finalized prior to the initiation of development/redevelopment as offensive to the requirement that planning goals and policies be based upon appropriate data, citing Sections 163.3177(10)(e) and (8), Florida Statutes (Supp. 1996).

     The court’s remand requires the Administration Commission to comply with the balancing test set out in Section 288.975(12)(d), Florida Statutes.

     The court declined to address the right to a formal administrative hearing in conjunction with Administration Commission review of base reuse plans.

     Judge Shevin authored the opinion, in which Chief Judge Schwartz and Judge Sorondo joined.