89-002643 John Warren vs. City Of St. Petersburg And Tampa Bay Regional Planning Council Status: Closed Recommended Order on Friday, June 16, 1989.

Summary: Standing to bring appeal ini Development of Regional Impact modification case is limited by 380.37(2).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN WARREN , )

)

Petitioner , )

)

vs. ) CASE NO. 89-2643

)

CITY OF ST. PETERSBURG and TAMPA )

BAY REGIONAL PLANNING COUNCIL , )

)

Respondents , )

and )

)

DEPARTMENT OF COMMUNITY AFFAIRS , )

)

Intervenor . )

___________________________________)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, a hearing was held in this case on May 25, 1989, in

Tallahassee, Florida, before the Division of Administrative Hearings, by its

designated Hearing Officer, Diane K. Kiesling. At issue were the Motion to

Intervene filed by the Department of Community Affairs (DCA) and the Amended

Motion to Dismiss filed by the City of St. Petersburg (City) and joined in by

the Tampa Bay Regional Planning Council (TBRPC).

APPEARANCES

For Petitioner : Peter B. Belmont

Attorney at Law

511 31st Avenue North

St. Petersburg, Florida 33704

For Respondent : Michael S. Davis

(City) Mirelle Murphy James

Mark A. Winn

Attorneys at Law

Post Office Box 2842

St. Petersburg, Florida 33731

For Respondent : Roger S. Tucker

(TBRPC) Attorney at Law

Tampa Bay Regional Planning

Council

Suite 209

9455 Roger Boulevard

St. Petersburg, Florida 33702

For Intervenor : Jeffrey N. Steinsnyder

(DCA) Attorney at Law

Department of Community Affairs

2740 Centerview Drive

Suite 138

Tallahassee, Florida 32399-2100

PRELIMINARY STATEMENT

Petitioner, John Warren, filed a Petition on Appeal with the Florida Land

and Water Adjudicatory Commission on March 20, 1989, seeking to challenge a

development order of the City of St. Petersburg. Respondent City filed an

Answer, Motion to Dismiss, and Memorandum of Law on April 5, 1989, and a Pre-

hearing Statement on April 17, 1989. Tampa Bay Regional Planning Council filed

a Motion to Intervene on April 18, 1989. Petitioner's Response to Respondent's

Motion to Dismiss and Pre-hearing Statement were both filed on April 19, 1989.

Department of Community Affairs filed a Motion to Intervene on April 28, 1989.

The City filed an Amended Motion to Dismiss dated May 2, 1989. By Order of

Transmittal dated May 11, 1989, the Florida Land and Water Adjudicatory

Commission (FLWAC) referred the Amended Motion to Dismiss and Department of

Community Affair's Motion to Intervene to the Division of Administrative

Hearings, along with further direction that a hearing pursuant to Chapter 120.57

be held if the Motion to Dismiss was denied.

The Motion to Intervene filed by Department of Community Affairs was

granted during the May 25, 1989, hearing. That hearing was a full evidentiary

hearing on the Amended Motion to Dismiss. Respondents presents Exhibits A-T

which were admitted in evidence. Petitioner had Exhibits 1 and 2 admitted in

evidence. The transcript of the hearing was filed on May 30, 1989.

FINDINGS OF FACT

1. In 1987 the City of St. Petersburg sought permission to file an

application for an Areawide Development of Regional Impact (DRI) for the Intown

Area.

2. On July 23, 1987, notice was sent to each property owner within the

proposed Areawide DRI. The notice indicates that a public hearing would be held

on August 27, 1987, from which the St. Petersburg City Council would decide

whether to authorize the City of St. Petersburg to proceed to apply for the DRI.

3. Petitioner, John Warren, received said notice and owns property within

the area encompassing the Areawide DRI.

4. Further notices were provided to property owners within the area,

including a notice of the petition filed by the City which was published in the

St. Petersburg Times on July 27, 1987; a notice to property owners dated

September 1, 1987, advising that the City was authorized to proceed with the

Intown Areawide DRI; and three other notices regarding public hearings and

consideration of the DRI.

5. After all required notice, the St. Petersburg City Council considered

the proposed Areawide DRI on December 15, 1988, and formally adopted the DRI by

Ordinance No. 1072-F. The ordinance was signed on December 15, 1988.

6. A Notice of Adoption of a Development Order was executed and recorded

in the public records on December 20, 1988.

7. The development order enacted on December 15, 1988, was transmitted to

the Department of Community Affairs and the Tampa Bay Regional Planning Council

on December 19, 1988, and to the City Clerk on December 20, 1988.

8. A certified copy of the DRI Ordinance 1072-F as enacted on December 15,

1988, is a part of the record as Exhibit K and it is incorporated by reference.

9. Thereafter the Tampa Bay Regional Planning Council appealed the DRI

pursuant to Section 380.07(2), Florida Statutes, to the Florida Land and Water

Adjudicatory Commission.

10. The City and Tampa Bay Regional Planning Council reached an agreement

for settling the appeal and said settlement was finalized in the Stipulated

Settlement Agreement.

11. Pursuant to the Stipulated Settlement Agreement, the St. Petersburg

City Council, at its February 2, 1989, meeting, adopted the terms of the

Settlement Agreement, modified Ordinance 1072-F to incorporate the settlement

terms, and adopted Ordinance 1072-F as modified.

12. Based upon the settlement and modification of the DRI by the St.

Petersburg City Council, on February 7, 1989, the Tampa Bay Regional Planning

Council filed a Notice of Voluntary Dismissal of its appeal to the Florida Land

and Water Adjudicatory Commission.

13. The Florida Land and Water Adjudicatory Commission entered a Final

Order of Dismissal on February 20, 1989.

14. Warren filed his Petition on Appeal on March 20, 1989. The Petition

is filed pursuant to Sections 380.06(25)(h) and 380.07, Florida Statutes, and

Rule 42-2.002, Florida Administrative Code.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has jurisdiction of the

parties to and the subject matter of this proceeding. Section 120.57(1) and

380.07(3), Florida Statutes.

16. The amended Motion to Dismiss, filed by the City and joined in by

Tampa Bay Regional Planning Council and Department of Community Affairs, raised

four grounds for dismissal of this Petition

1. The appeal is untimely.

2. The appeal is an impermissible collateral

attack of a Final Order.

3. There are no appeal rights to a

modification of a DRI that is not a

substantial deviation.

4. Petitioner lacks standing.

Standing

17. While any hearing conducted pursuant to Section 380.07 is to be

conducted in accordance with Chapter 120, standing to bring such appeals is

established by Section 380.07(2). Caloosa Property Owners Association, Inc. v.

Palm Beach County Board of County Commissioners et al., 429 So.2d 1260, 1265

(Fla. 1st DCA 1983). Hence, substantially affected persons, as that term is

used in Chapter 120, do not have standing to initiate an appeal under 380.07(2),

and in fact, to permit such a broad standing test would contravene the

requirements of Section 380.07(2). Id at 1265.

18. Section 380.07(2) is very explicit in specifying those persons with

standing to bring an appeal in DRI cases. The appellate courts of this state

have been consistent in interpreting that section to limit standing to the

owner, the developer, an appropriate regional planning agency, or the state land

planning agency. Friends of the Everglades, Inc. v. Board of County

Commissioners of Monroe County, 456 So.2d 904, (Fla. 1st DCA 1984); Londono v.

City of Alachua, 438 So.2d 91 (Fla. 1st DCA 1983); and Caloosa, supra.

19. The term "owner" is not defined in Section 380.07(2), but has been

construed to mean the owner of the property that is the subject of DRI review.

Caloosa, supra. at 1264. It was recognized by the court in Caloosa that in

enacting the statute and defining those with standing, the legislature "did not

refer to `an owner' or to `any property affected by such order.'" The use of

the term "the owner" is meant "to specify the narrow class of property owners

entitled under section 380.07(2) to appeal a development order." Id. at 1264.

20. The court in Friends of the Everglades at p. 911 summed it up best

when it said:

Chapter 380 provides for notice and hearing

at the local level and then provides for

review by the FLWAC if the developer or

property owner believes local authorities

have acted improvidently in denying an

application for development approval, or if

the regional or state planning agencies

believe that the public's interests will not

be served by the local government's approval

of a plan for development. Because it is

within the legislature's prerogative to

provide procedures to be followed when the

rights of property owners are to be affected

by governmental action, and to provide for

review of such action, we cannot conclude

that the limitation of standing to appeal

development orders to FLWAC to, on the one

hand, property owners directly affected and,

on the other hand, to agencies designated to

represent the public's interest in such

proceedings violates due process concepts.

21. It is recognized that this case arises from an Areawide Development of

Regional Impact as specified in Section 380.06(25). Certain rights are

specifically given to owners of property within the defined planning area when

an Areawide Development of Regional Impact is proposed. These rights include

certain notice requirements and the right to be heard at public hearings.

However, by reading Sections 380.06(25) and 380.07(2) in pari materia, the

conclusion is in escapable that owners of property within an Areawide

Development of Regional Impact, which property is not the direct subject of the

development order, are not the owners referred to in Section 380.07(2) who have

standing to appeal the development order.

22. The DRI process is recognized in Caloosa as being "primarily a

comprehensive land use review technique for large scale development involving

primarily two groups -- developers on one hand, and on the other, governmental

planners and permitting authorities." Most cases involve a developer who is

also the owner of the property proposed for development. There are also those

development proposals which relate to areas not solely owned by one developer or

areas designated for DRI review which contain property not proposed for new

development. Londono, supra., involved just such a case.

23. In Londono, individual owners of lots, which they recently purchased

in a residential development, sought to appeal a subsequent development order

which encompassed, in part, the property of the individual owners; however, no

new development was proposed for their individual lots. The Florida Land and

Water Adjudicatory Commission dismissed the appeals of these individual land

owners. The First District Court of Appeal affirmed this dismissal and, in

doing so, further clarified the concept of owner as it relates to Section

380.07(2) appeals.

24. The court, at page 93, narrowed "the class of potential appellants

under Section 380.07(2) ... to disqualify `owners' of land included in the DRI

for purposes other than for development." While owners of property within the

area encompassed by a development order "may well be affected in the enjoyment

of their properties by the presence around them of a development of regional

impact ...," they "have no statutory standing to complain to the Commission

[FLWAC] that [the] development order insufficiently protects regional interests;

that function is reserved ... to the designated governmental bodies whose

responsibility it is to protect those regional interests." Londono at p. 93.

25. In applying the Londono holding to this case, it must be concluded

that Warren is not an owner with standing to appeal a development order pursuant

to Section 380.07(2). The petition should be dismissed.

Timeliness

26. Even if Warren had standing, his appeal is untimely and should be

dismissed for that reason. The facts are clear that the development order,

Ordinance 1072-F, was entered on December 15, 1988. A timely appeal was brought

by Tampa Bay Regional Planning Council. That appeal was settled and the

settlement resulted in modification to Ordinance 1072-F. The appeal was then

voluntarily dismissed by Tampa Bay Regional Planning Council and a Final Order

was entered by the Florida Land and Water Adjudication Commission.

27. Without belaboring the facts, it is clear that the development order,

Ordinance 1072-F, was signed on December 15, 1988. Under Section 380.07(2), an

appeal of a development order must be filed "[w]ithin 45 days after the order is

rendered." An order is rendered "for purposes of the time for filing a notice

of appeal when the development order is `issued and transmitted.' Windley Key,

Ltd. v. State of Florida, Department of Community Affairs, 456 So.2d 489 (Fla.

3d DCA 1984)." Florida East Coast Railway Co. v. State Land and Water

Adjudicatory Commission, 464 So.2d 1361, 1362 (Fla. 3d DCA 1985). The

development order is "`rendered' for purposes of the time for filing a notice of

appeal when a signed development order is issued and transmitted." Id at 1362.

The facts in this case make it clear that a signed development order was issued

and transmitted on December 19, 1988. Any right to appeal began to run on this

date. Petitioner Warren filed his Petition on Appeal on March 20, 1989. Hence,

the appeal is untimely and should also be dismissed for this reason.

Remaining Grounds for Dismissal

28. The other two grounds raised in the Amended Motion to Dismiss are not

considered herein and no Conclusions of Law are reached thereon. It is

unnecessary to reach these two grounds since the Petition on Appeal must be

dismissed for the reasons set forth above.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a

Final Order granting the Amended Motion to Dismiss and dismissing the Petition

on Appeal filed by John Warren.

DONE and ENTERED this 16th day of June, 1989 in Tallahassee, Florida.

_________________________________

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of June, 1989.

COPIES FURNISHED:

Peter B. Belmont Patty Woodworth, Secretary

Attorney at Law Planning and Budgeting

511 31st Avenue North Executive Office of the Governor

St. Petersburg, Florida 33704 The Capitol, PL-05

Tallahassee, Florida 32399-0001

Michael S. Davis

Mirelle Murphy James Honorable Bob Martinez

Mark A. Winn Governor, State of Florida

Attorneys at Law The Capitol

Post Office Box 2842 Tallahassee, Florida 32399

St. Petersburg, Florida 33731

Honorable Robert A. Butterworth

Roger S. Tucker Attorney General

Attorney at Law State of Florida

Tampa Bay Regional Planning The Capitol

Council Tallahassee, Florida 32399-1050

Suite 209

9455 Koger Boulevard Honorable Doyle Conner

St. Petersburg, Florida 33702 Commissioner of Agriculture

State of Florida

Jeffrey N. Steinsnyder The Capitol

Attorney at Law Tallahassee, Florida 32399-0810

Department of Community Affairs

2740 Centerview Drive Honorable Betty Castor

Suite 138 Commissioner of Education

Tallahassee, Florida 32399- 2100 State of Florida

The Capitol

James C. Vaughn, Jr. Tallahassee, Florida 32399

Governmental Analyst

Florida Land and Water Honorable Jim Smith

Adjudicatory Commission Secretary of State

The Capitol State of Florida

Tallahassee, Florida 32399 The Capitol

Tallahassee, Florida 32399-0250

Honorable Tom Gallagher

Treasurer and Insurance Honorable Gerald Lewis

Commissioner Comptroller, State of Florida

State of Florida The Capitol

The Capitol Tallahassee, Florida 32399-0350

Tallahassee, Florida 32399-0300

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

LAND AND WATER ADJUDICATORY COMMISSION

JOHN WARREN,

Petitioner

vs.

CITY OF ST. PETERSBURG and TAMPA CASE NO. 89-16

BAY REGIONAL PLANNING COUNCIL , DOAH CASE NO. 89-2643

Respondents,

and

DEPARTMENT OF COMMUNITY AFFAIRS,

Intervenor .

__________________________________/

FINAL ORDER

This cause came before the Governor and Cabinet of the State of Florida,

sitting as the Florida Land and Water Adjudicatory Commission ("the

Commission"), on August 8, 1989, in Tallahassee, Florida, pursuant to sections

120.57 and 380.07, Florida Statutes, for consideration of a Recommended Order

from the Division of Administrative Hearings entered on June 16, 1989 ("the

Recommended Order"), a copy of which is attached as Exhibit A, and exceptions

filed subsequent thereto. Based upon the Commission's review of this cause, it

is hereby ordered:

1. The Commission adopts and incorporates in this Order the Findings of

Fact set out in paragraphs 1 through 14 of the Recommended Order.

2. The Commission adopts and incorporates in this Order the Conclusions of

Law set forth on pages 5 through 8 under the heading of "Standing" to the extent

explained in Section 3 of this Order.

3. The Commission adopts and incorporates in this Order the Conclusions of

Law set forth on pages 9 through 10 under the heading of "Timeliness" to the

extent that the Commission finds section 380.07(2), Florida Statutes requires

that an appeal of a development order must be filed "within 45 days after the

order is rendered" and that an order is rendered "for purposes of the time for

filing a notice of appeal when a signed development order is issued and

transmitted." Florida East Coast Railway Co. v. State Land and Water

Adjudicatory Commission, 464 So.2d 1361, 1362 (Fla. 3d DCA 1985). The

Commission also finds that "the facts in this case make it clear that a signed

development order was issued and transmitted on December 19, 1988. Any rights

to appeal began to run on this date." However, this Commission also finds, that

a party, under certain circumstances, may properly take an appeal of a

modification or settlement of a development order. The circumstances allowing

such an appeal would only be when the subject of the modification to the

development order or settlement of the appeal raises new or additional issues of

concern to the statutorily-entitled party seeking to challenge the order at that

point.

Rulings on Warren's Exceptions

to the Findings of Fact

1. The Petitioner Warren's first exception is denied. Warren challenges

in this first exception those findings set forth in paragraph 4 of the

recommended order. Specifically, Warren excepts to the finding that he received

the statutory notice required under Chapter 380 from the City of St. Petersburg,

the developer of the development order subject of this appeal, prior to

rendering the subject development order. Warren further excepts to the extent

that any notice actually received by the Petitioner failed to advise Petitioner

"as to the proposed conditions of the development order, as to any hearing times

regarding the proposed development order, not as to the rights of appeal for

property owners within the boundaries of the areawide development of regional

impact." The Commission finds the hearing officer's finding in paragraph 4 was

appropriately derived from the evidence presented. Certified copies of all

notice requirements, as met by the city in compliance with Chapter 380, were

admitted into evidence by the hearing officer at the hearing held on May 25,

1989 without objection by the Petitioner. (See R. 45-50). No testimony was

thereafter offered by the Petitioner to rebut that the notices were either

statutorily defective or not received.

Section 120.57(1)(b)(10) provides in pertinent part:

The agency in its final order may reject or modify

the conclusions of law and interpretation of administrative

rules in the recommended order, but may not reject

or modify the findings of fact unless the agency first

determines from a review of the complete record, that

the findings of fact were not in the order, that the

findings of fact were not based upon competent substantial

evidence or that the proceedings on which the findings

were based did not comply with the essential requirements

of law.

Further, as stated by the court in Florida Department of Corrections v.

Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987):

The fact findings of a Hearing Officer become binding

upon an agency unless it finds they are not supported

by competent substantial evidence or that the proceedings

on which the findings were based did not comply with

the essential requirements of law.

2. Petitioner's second exception is denied. Petitioner challenges the

hearing officer's finding that the city complied with the statutory notice

requirements of Chapter 380. A review of the transcript of the May 25 hearing

reveals that the hearing officer allowed into evidence the proof submitted by

the city of their compliance with the above notice requirements without

objection by the Petitioner.

The Commission, therefore, finds paragraph 5 of the hearing officer's

recommended order to be based on competent substantial evidence. The Petitioner

may not fail to voice objections to the admission of this evidence, then claim

prejudice when the recommendation of the hearing officer adversely affects him.

See Allstate Insurance Company v. Gillesoie, 455 So.2d 617 (Fla. 2nd DCA 1984).

The Commission's ruling as to Petitioner's exception concerning his

statutory construction of section 380.07, Florida Statutes is set forth in

relation to Petitioner's fourth exception. All other aspects of Petitioner's

second exception are beyond the scope of this appeal and are being presented for

the first time in this appeal process in Petitioner's exceptions; therefore,

they will not be considered by this Commission.

Rulings on Warren's Exceptions

to Conclusions of Law

3. Petitioner's third exception is denied. Warren excepts to the hearing

officer's specific conclusion that he is not an "affected property owner as that

term is defined in Londono v. City of Alachua, 438 So.2d 91 (Fla. 1st DCA 1983)

and thus lacks standing to bring the instant appeal pursuant to section

380.07(2). The hearing officer reached this conclusion despite the fact that

Warren does, in fact, own property within the area being encompassed by the

area-wide development order. However, it is important to note that Warren's

appeal does not challenge, as is explained below, any issues directly affecting

his property. Instead, Warren has challenged certain issues raised by a

modification to the development order which was the result of the settlement of

an appeal brought by the Tampa Bay Regional Planning Council. Because Warren

did not file his appeal within the 45 day time period following the date that

the original development order was rendered and, therefore, could not challenge

that order, he has now filed a petition challenging "activities authorized by

the St. Petersburg DRI development order (which will result in increased

concentrations of stormwater pollution, the loss of historical or archaeological

resources of state or regional significance, increased traffic, and increased

burdens to the St. Petersburg taxpayer", which are additional issues raised by

the modification. Historic preservation requirements, however, was not an issue

challenged by the TBRPC in its appeal but is a subject of the original

development order.

It is also important to note that not only are the above, as framed, not

concerns directly affecting Warren's property and Warren himself as owner of

that property, but his petition serves as an attempt to usurp the role of the

state and regional planning agencies in addressing areas of regional and state

concern as part of the DRI review process. Warren, as a property owner and even

as an "affected" property owner, lacks standing to challenge these Issues as

raised in his appeal, Londono at page 93. As stated, the issues as raised in

Warren's petition do not relate to the impact of the subject development order

on his property. Warren even states in his petition that the city's historic

preservation requirements are not strict enough and that property around him

needs preservation for historical reasons. His petition also focuses concern on

state and local guidelines as not strict enough in regulating stormwater, not

that the stormwater requirements present too harsh a burden on his property. As

far as traffic improvements are concerned, he alleges that the city has not

provided funding for the improvements as slated in the modification to the

development order, clearly a concern for the governmental agencies involved.

Petitioner's exception asserts, however, that "(A) party having standing to

maintain an appeal is not limited as to the issues which may be raised on

appeal." Had Warren filed a petition within the 45 days after the development

order was rendered (the hearing officer determined this date to be December 19,

1988; Warren's petition was not filed until March 17, 1989), he may have had

standing to challenge all aspects of the original development order which

directly affected his property and himself as an owner of that property (as

stated, Warren's timely appeal of the modifications to the development order

must be limited to those new and additional issues raised by the modification).

He did not. But, in any event, he does not have standing to challenge the

above. "It is not the purpose of Chapter 380 to provide a forum for parties

whose complaint focus on alleged detriment to the activities they wish to

conduct on adjoining land. `Regional impact' is concerned with matters

affecting the public in general, not special interests of adjoining landowners

... such special interests are properly asserted before the local governing body

having jurisdiction to control land use and development under zoning and

building regulation." Caloosa Property Owners Association, Inc. v. Palm Beach

County Board of County Commissioners, 429 So.2d 1260, 1264, (Fla. 1st DCA 1983).

See also Suwannee River Area Council Boy Scouts of America v. State of Florida

et al, 384 So.2d 1369 (Fla. 1st DC 1980).

Also, as cited by the hearing officer, "It was recognized by the court in

(Caloosa supra) that in enacting the statute and defining those with standing,

the legislature `did not refer to `an owner' or to `any' property affected by

such order .` The use of the term `owner' is `meant to specify the narrow class

of property owners entitled under section 380.07(2), to appeal a development

order.'" If Warren were to maintain an appeal, he is limited in his challenge

to those aspects of the development order as modified in the settlement

agreement between the City of St. Petersburg and the TBRPC which raise new and

additional issues from the original development order and must demonstrate how

these issues directly affect him. The Petition filed before this Commission by

Warren does not meet that standard. He also cannot, at this point in time,

attempt to raise in his exceptions those aspects of the original development

order which may directly affect him, i.e., "(A)lthough other land use and zoning

restrictions may permit certain development, if the use limitations set forth in

the development order have been fulfilled then the desired development may not

proceed" (See Petitioner's Exceptions at page 6). These issues are not only

outside the scope of the modification to the development order and were not

properly presented to the hearing officer, but Petitioner is foreclosed by

virtue of Rule 42-2.008(4), Florida Administrative Code from raising any new

issues at this stage in the proceeding. To do so would contravene the purpose

of Chapter 380 which is to bring an efficient and expeditious review of all

disputes appealed under its provisions:

Appellees suggest that while Chapter 380 is intended

to facilitate uniform regulation and orderly growth,

limited standing under section 380.07(2) avoids

administrative and judicial delay in resolving landowners'

development rights and also represents a factor in

the legislative balance between public and private

rights. This is a legitimate governmental objective.

To allow various other parties to appeal a development

order could delay one's rights to proceed with a

development project approved by local authorities and

reviewed by regional officials. Caloosa at page 1266.

In addition, Petitioner stresses that the cases cited by the hearing

officer in her recommended order have "limited applicability to the present case

because none of the cases relied upon by the hearing officer involved a local

government sponsored areawide development of regional impact." This Commission

disagrees. "Section 380.021, Florida Statutes, unequivocally provides that the

procedures set forth in Chapter 380 are for the purpose of preserving our

state's natural resources, as well as to `facilitate orderly and well-planned

development' through state-established growth management techniques. Implicit

in this statement of legislative purpose and review procedures in Chapter 380 is

the view that the DRI review process is primarily a comprehensive land use

review technique for large scale development..." Caloosa, at page 1264. These

concerns remain constant regardless of whether development proceeds under

section 380.06(6) or 380.06(25). Case law cited in this proceeding focuses on

these concerns and is, therefore, equally applicable to the present case.

4. Petitioner's fourth exception is denied. Petitioner Warren excepts to

the hearing officer's conclusion that his appeal was not timely filed. The

Commission agrees that Warren's appeal was not timely filed so as to allow a

broad challenge of the subject development order. However, had Warren

established his standing to challenge the amended development order, his appeal

would be considered timely. But, as determined above, this Commission does not

believe that Warren made such a showing. All other aspects of Petitioner's

exception go to a broad-based appeal, which, as has been stated, Petitioner is

now precluded from arguing.

5. For the reasons stated above in sections 3 and 4, Petitioner's fifth

exception is denied.

DONE AND ENTERED, this 30th day of August, 1989.

_______________________

PATRICIA A. WOODWDRTH

Secretary

Florida Land and Water

Adjudicatory Commission

COPIES FURNISHED:

Members of The Commission

Parties of Record

Honorable Bob Martinez Circle K. Corporation.

Governor of Florida 500 S. Faulkenberg Road

The Capitol, PL05 Tampa, FL 33619

Tallahassee, FL 32399

Honorable Gerald Lewis William B. Spottswood, Esquire

Comptroller Spottswood, Spottswood, et al.

The Capitol 500 Fleming Street

Tallahassee, FL 32399 Key West, FL 33040

Honorable Bob Butterworth Michele Russell, Esquire

Attorney General Assistant General Counsel

The Capitol The Capitol, Room 209

Tallahassee, FL 32399 Tallahassee, FL 32399

Honorable Betty Castor Honorable Michael Puto

Commissioner of Education Mayor, Monroe County

The Capitol 310 Fleming Street

Tallahassee, FL 32399 Key West, FL 33040

Honorable Tom Gallagher Jack Osterholt, Exec. Director

Treasurer South Florida Regional

The Capitol Planning Council

Tallahassee, FL 32399 3400 Hollywood Blvd.,

Suite 140

Hollywood, FL 33021

Honorable Jim Smith Randy Ludacer, Esquire

Secretary of State Monroe County Attorney

The Capitol 310 Fleming Street

Tallahassee, FL 32399 Key West, FL 33040

Honorable Doyle Conner William J. Kendrick

Commissioner of Agriculture Hearing Officer

The Capitol Division of Administrative

Tallahassee, FL 32399 Hearings

The DeSoto Building

1230 Apalachee Parkway

John M. Carlson, Esquire Tallahassee, FL 32399-1550

David L. Jordan, Esquire

Department of Community Affairs Kenneth A. Jones, Esquire

2740 Centerview Drive 2000 Main Street, Suite 401

Tallahassee, FL 32399 Barnett Centre

Fort Myers, FL 33901

Florida Administrative Law Diane K. Kiesling

Report Hearing Officer

Post Office Box 2309 Division of Administrative

Gainesville, FL 32602 Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida

32399-1550

David L. Jordan, Esquire Roger S. Tucker, Esquire

Department of Community Linda M. Hallas, Esquire

Affairs 9455 Koger Boulevard

2740 Centerview Drive Suite 209

Suite 138 St. Petersburg, FL 33702

Tallahassee, FL 32399-2100

Honorable Bob Martinez Diane K. Kiesling, Hearing

Governor of Florida Officer

The Capitol, PL05 The DeSoto Building

Tallahassee, FL 32399 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

Honorable Gerald Lewis David L. Jordan, Esquire

Comptroller Department of Community

Affairs

The Capitol 2740 Centerview Drive

Tallahassee, FL 32399 Suite 138

Tallahassee, FL 32399-2100

Honorable Bob Butterworth Michele Russell, Esquire

Attorney General Assistant General Counsel

The Capitol The Capitol, Room 209

Tallahassee, FL 32399 Tallahassee, FL 32399

Honorable Betty Castor Roger S. Tucker, Esquire

Commissioner of Education Linda M. Hallas, Esquire

The Capitol 9455 Koger Blvd., Suite 209

Tallahassee, FL 32399 St. Petersburg, FL 33702

Honorable Tom Gallagher Peter B. Belmont, Esquire

Treasurer 511 31st Avenue, North

The Capitol St. Petersburg, FL 33704

Tallahassee, FL 32399

Honorable Jim Smith Michael S. Davis, Esquire

Secretary of State Mirelle M. James, Esquire

The Capitol Mark A. Winn, Esquire

Tallahassee, FL 32399 City Attorney's Office

Post Office Box 2842

St. Petersburg, FL 33731

Honorable Doyle Conner Julia Greene, Executive

Commissioner of Agriculture Director

The Capitol Tampa Bay Regional Planning

Tallahassee, FL 32399 Council

9455 Koger Blvd., Suite 219

St. Petersburg, FL 33702

Florida Administrative Law

Report

Post Office Box 2309

Gainesville, FL 32602

Peter B. Belmont, Esquire Michael S. Davis, Esquire

511 31st Avenue, North Mirelle M. James, Esquire

St. Petersburg, FL 33704 Mark A. Winn, Esquire

City Attorney's Office

Post Office Box 2842

St. Petersburg, FL 33731

Julia Greene, Executive Director

Tampa Bay Regional Planning

Council

9455 Koger Boulevard, Suite 219

St. Petersburg, Florida 33702