Audubon Society of the Everglades & 1000 Friends of Florida v. Department of Community Affairs & Village of Wellington, DOAH Case No. 01-0781GM

     The Village of Wellington is a fairly recently incorporated municipality in Palm Beach County. The overwhelming majority of the Village is a Planned Unit Development (PUD) approved
by Palm Beach County in the 1970s. As part of the PUD, certain areas were designated for stormwater treatment. One such area, about eighty acres in size, became known as "Peacock Pond."
When the Village incorporated, it designated this parcel "Conservation" on its future land use map.

     The parcel is privately owned, and the current owner has not operated it as a stormwater pond for some time. The Village tried various legal avenues in an effort to gain possession of or a right of entry to the parcel to restore its stormwater treatment function, but was not successful. After these efforts were exhausted, the Village redesignated the parcel as "Residential" on its future land use map. The Department found this amendment in compliance, and the Audubon Society and 1000 Friends filed a petition for formal administrative proceedings. The principle contention is that the parcel has natural resource values and should be returned to its function as a stormwater pond.

     After administrative proceedings, a Recommended and Final Order were entered deeming the amendment to be in compliance. In addition to setting forth findings and conclusions regarding the resource value of Peacock Pond and stormwater treatment in the Village of Wellington, the Orders thoroughly address associational standing as it relates to the definition of "affected person" in Section 163.3184, Florida Statutes. The time to appeal has expired, and none was filed.


Bollum v. Department of Community Affairs and Deland, DOAH Case No. 98-2331GM, DCA Final Order No. DCA00-GM-005

     The City of DeLand adopted an ordinance which amended the future land use designation of an annexed forty acre parcel from Volusia County “Industrial” to City of DeLand “Highway Commercial.” Based on projected transportation impacts from development under the City’s category, the Department issued a Notice of Intent to find the amendment not in compliance. Petitioners Bollum, et al., filed a Petition for Formal Administrative Hearing in support of the Department’s initial determination, and also raised additional issues not forwarded by the Department.

     The case was placed into abeyance to allow settlement negotiations, especially with respect to the transportation analysis upon which the Department based its initial determination. During this time the City undertook a restudy of its transportation network and the impacts on that network from the subject amendment. This new study revealed flaws in the earlier analysis, and reached the conclusion that adequate capacity remained for development under the amendment.

     The Department reviewed the restudy, found it indeed addressed the original compliance issues, and issued an Amended Notice of Intent to find the amendment in compliance. Petitioners Bollum, et al. maintained their position that the amendment is not in compliance, and filed an Amended Petition for Formal Administrative Hearing. Petitioners pursued only three issues in the Amended Complaint: (1) Whether there is a need for an additional forty acres of commercial land within the City; (2) Whether realignment of the parties was correct in the absence of a formal compliance agreement; and (3) Whether the transportation impacts of development under the amendment could lawfully take advantage of a lower level of service assigned to road within the City’s central business district.

     The Administrative Law Judge entered a Recommended Order rejecting all three arguments. Regarding need, the Judge noted that because the need calculus can be imprecise when applied to a parcel as small as forty acres, especially in the absence of an adopted methodology in the City’s comprehensive plan, it should be tempered by other factors. Other factors in this instance included policies encouraging Highway Commercial development in the immediate area of the subject amendment, existing regional commercial development in the area, and the location of the parcel within the adopted urban boundary.

     The Judge also rejected the argument that the Department is not entitled to realignment in the absence of a formal compliance agreement. So long as the compliance issues identified by the Department in its original not in compliance determination are addressed, the parties may be realigned following issuance of an Amended Notice of Intent. Finally, the Judge found the City’s comprehensive plan allowed the amendment to utilize the lowered level of service for roadways within the DeLand central business district.

     The Department adopted these findings and conclusions in its Final Order, and rejected Petitioners’ exceptions. The Department also accepted the Administrative Law Judge’s recommendation that certain parties be dismissed for lack of standing. These parties live within the “Greater DeLand Area” as established by a special act of the Legislature, but do not live within the corporate limits of the City of DeLand. The Administrative Law Judge and Department both concluded that the definition of “affected persons” is exhaustive, not illustrative, and requires residence within the jurisdiction of the adopting local government. The final order recently was upheld by the First District Court of Appeal without opinion. 1st DCA Case No. 1D01-859