92-006913DRI Department Of Community Affairs vs. Gator Creek Campground, Inc., And Polk County Status: Closed Recommended Order on Wednesday, February 3, 1993.

Summary: DCA didn't timely appeal Developmental Order but tried to appeal when construction deadline extended. Recommended dismissal for lack of jurisdiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6913DRI

)

GATOR CREEK CAMPGROUND, INC., and )

POLK COUNTY, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER OF DISMISSAL

When this case was referred to the Division of Administrative Hearings

(DOAH), several motions were pending, including:

(1) Gator Creek's Response/Motion to Dismiss Department of Community

Affair's Petition for Appeal of Development Order, arguing essentially:

(a) that the petition was filed against "Gator

Creek Campground PUD, Inc.," which does not

exist, instead of against "Gator Creek

Campground, Inc."

(b) that the appeal was not filed within 45

days of the rendering of the development order

in issue, as required by Section 380.07, Fla.

Stat. (1991). As to this point, Gator Creek

argued that Polk County's approval of Gator

Creek's development plans in November, 1991,

is the only development order in issue and

that the Department's appeal petition does

not address that development order, but only

addresses the one-year extension granted by

Polk County in April, 1992. It argued that

the Department's appeal was filed much more

than 45 days after the rendition of this

approval. Alternatively, it argued that,

even if the one-year extension granted by Polk

County in April, 1992, were considered to be a

development order, the extension was rendered

more than 45 days before the Department's

appeal was filed.

(c) that the Department's appeal petition does

not address Polk County's approval of Gator

Creek's development plans in November, 1991,

which is the only development order in issue,

but only addresses the one-year extension

granted by Polk County in April, 1992.

The Department of Community Affairs filed a written response in opposition to

this motion, which it later supplemented by the filing of an exhibit.

(2) Gator Creek's Motion to Dismiss for Lack of Jurisdiction, arguing

essentially that the Florida Land and Water Adjudicatory Commission (the

Commission) exceeded the statutory 60-day time limit for referring the Petition

of the Department of Community Affairs for Appeal of Development Order to DOAH

set out in Section 120.57(1)(b)3, Fla. Stat. (1991).

(3) Gator Creek's Motion to Dismiss for Violation of Due Process, arguing

essentially that the Commission did not properly give notice of the meeting at

which it decided to refer the matter to DOAH.

When the case was referred to DOAH, an Initial Order was entered, but no

party responded to it. Gator Creek then filed a Motion to Dismiss for Lack of

Jurisdiction and Failure to Comply with Hearing Officer's Initial Order. Polk

County also filed a Motion to Dismiss, echoing Gator Creek's argument that Polk

County's approval of Gator Creek's development plans in November, 1991, is the

only development order in issue and that the Department's appeal petition does

not address that development order but only the one-year extension.

No further written arguments were filed, and no party complied with or

responded to the Initial Order. Finally, the Hearing Officer initiated a

telephone prehearing conference, as required by the Initial Order, for purposes

of scheduling this case for final hearing. The telephone prehearing conference

was held on January 14, 1993. At the conference oral arguments on the pending

motions were heard, but the parties were not prepared to fully argue the

motions, and they were given until January 29, 1993, to file further written

argument on them. To date, Gator Creek and the County have filed further

written argument, but the DCA has not.

As for the arguments that the statutory 60-day deadline for Commission

referral of matters to DOAH under Section 120.57(1)(b)3, Fla. Stat. (1991), was

exceeded, and that the Commission did not properly give Gator Creek notice of

the meeting at which it decided to refer the matter to DOAH, the referral to

DOAH for purposes of the statutory due process proceedings provided in Section

120.57(1) would remedy any procedural defect.

On the other hand, the requirement under Section 380.07, Fla. Stat. (1991),

that appeals from development orders be filed within 45 days of rendition is

jurisdictional. Clearly, the Commission no longer would have jurisdiction over

a development order approving Gator Creek's development plans rendered in

November, 1991. But, if the one-year extension granted by Polk County in April,

1992, is itself a development order, the Department petition and response to the

motions to dismiss would raise factual issues as to whether the Department's

appeal was filed more than 45 days after the rendition of the extension.

This begs the final question under the Section 380.07 jurisdictional

arguments, which also is the question raised under the remaining motions to

dismiss--i.e., whether the one-year extension granted by Polk County in April,

1992, is a development order that can be appealed, even if the Department did

not timely appeal Polk County's approval of Gator Creek's development plans in

November, 1991.

Section 380.031(3), Fla. Stat. (1991), defines "development order" to mean

"any order granting, denying, or granting with conditions an application for a

development permit." Subsection (4) of the same statute defines "development

permit" to include "any building permit, zoning permit, plat approval, or

rezoning, certification, variance, or other action having the effect of

permitting development as defined in this chapter." Section 380.04(1), Fla.

Stat. (1991), defines "development" to mean "the carrying out of any building

activity or mining operations, the making of any material change in the use or

appearance of any structure or land, or the dividing of land into three or more

parcels." The statutory definition of a "development order" is therefore quite

broad, and it clearly includes Polk County's approval of Gator Creek's

development plans in November, 1991. Whether it also includes the one-year

extension granted in April, 1992, is another question and requires an

examination of the pertinent administrative rules.

F.A.C. Rule 9J-1.002(1) requires that development orders be rendered to the

Department and states in part:

Examples of actions for which these sections

require issuance and rendition of a

development order incluude, but are not limited to:

(a) Zoning

(b) Rezoning

(c) Special use or special exception

(d) Variance

(e) Plat approval

(f) Major development review

(g) Community impact assessment

(h) Building permit

(i) Fill permit

(j) Excavation permit

(k) Landclearing or landscaping permit

(l) Any change or amendment to a previously

issued development order

(m) Any other action having the effect of

permitting development as defined in Section

380.04, F. S.

(Emphasis added.)

It is concluded that, especially in order to be consistent with the

statutory definitions, F.A.C. Rule 9J-1.002(1)(m) must refer to relevant changes

or amendments. Otherwise, the 45-day deadline in Section 380.07 would be all

but meaningless and would not allow a developer to rely on any Department

failure to appeal a development order until the final development order. To be

relevant, a change or amendment would have to be one that could alter the way in

which the Department would review the development.

Generally, a relevant change or amendment to a development order would be

one that changes or amends the development project itself in some substantive

way. A change or amendment to a development order could be relevant if it

alters the project in some significant way, or if it adds elements or details to

the project. In addition, if the passage of time results in a relevant change

in circumstances that would alter the way in which the Department would review

the development, even the mere extension of a construction deadline could

constitute a development order. However, regardless of the nature of the change

or amendment, the scope of review should be limited to aspects of the

development affected by the relevant change or amendment; it should not reopen

all aspects of the development for review. In the case of an extension of a

construction deadline, the scope of review should be limited to those aspects of

the development affected by the circumstances that changed during the passage of

time.

In this case, the Petition of Department of Community Affairs for Appeal of

Development Order gives no indication that it seeks a review limited to those

aspects of the development affected by circumstances that have changed during

the passage of time engendered by the construction deadline extension. To the

contrary, it clearly seeks to reopen for review the entirety of the November,

1991, development order which the Department failed to appeal within the 45-day

time limit under Section 380.07.

Accordingly, the motions to dismiss filed by Gator Creek and by the County

on this ground are granted, and it is recommended that the Florida Land and

Water Adjudicatory Commission enter a final order of dismissal.

RECOMMENDED in Tallahassee, Florida, this 3rd day of February, 1993.

___________________________________

J. LAWRENCE JOHNSTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of February, 1993.

COPIES FURNISHED:

David J. Russ, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Benjamin W. Hardin, Jr., Esquire

Welch & Hardin

Post Office Box 1761

Lakeland, Florida 33802

Timothy F. Campbell, Esquire

Assistant County Attorney

Post Office Box 60

Bartow, Florida 33830

David K. Coburn, Secretary

Fla. Land & Water Adjudicatory Commission

Executive Office of the Governor

Attn: Kelly Tucker

Room 426

311 Carlton Building

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Florida Land and Water Adjudicatory

Commission written exceptions to this Recommended Order of Dismissal. All

agencies allow each party at least ten days in which to submit written

exceptions. Some agencies allow a larger period within which to submit written

exceptions. You should consult with the Florida Land and Water Adjudicatory

Commission concerning its rules on the deadline for filing exceptions to this

Recommended Order of Dismissal.