00-002089 William Howard Solomon vs. Florida Communities Trust Status: Closed Recommended Order on Tuesday, November 14, 2000.

Summary: Mandarin Community Club had standing to allege that relocation of historical structure would adversely affect ability to promote and ensure historic preservation in community; however, Florida Communities Trust did not abuse its discretion to approve relo

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM HOWARD SOLOMON, )

)

Petitioner, )

)

and )

)

MANDARIN COMMUNITY CLUB, )

)

Intervenor, )

)

vs. ) Case No. 00-2089

)

FLORIDA COMMUNITIES TRUST )

)

Respondent, )

)

and )

)

CITY OF JACKSONVILLE, )

)

Intervenor. )

______________________________)

RECOMMENDED ORDER

A formal hearing was conducted in this case on August 28

through 29, 2000, in Jacksonville, Florida, before the Division

of Administrative Hearings by its Administrative Law Judge,

Suzanne F. Hood.

APPEARANCES

For Petitioner William Howard Solomon:

William Howard Solomon, Esquire

1625 Emerson Street

Jacksonville, Florida 32207

For Intervenor Mandarin Community Club:

William Howard Solomon, Esquire

1625 Emerson Street

J acksonville, Florida 32207

For Respondent Florida Communities Trust:

Geoffrey T. Kirk, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Intervenor City of Jacksonville:

Karl J. Sanders, Esquire

City of Jacksonville

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

The issues are whether Petitioner W illiam Howard Solomon

and Intervenor Mandarin Community Club have standing to

challenge Respondent Florida Communities Trust's decision to

approve an amendment to the management plan for a historical

park, owned and operated by the Intervenor City of Jacksonville,

and if so, whether Respondent Florida Communities Trust properly

exercised its discretion to approve that decision.

PRELIMINARY STATEMENT

On January 26, 2000, the Governing Board of the Florida

Communities Trust (Respondent, hereafter referred to as "FCT")

held a public meeting to consider the City of Jacksonville's

(Intervenor, hereafter referred to as "the City") proposed

amendment to its management plan for the Walter Jones Historical

Park (hereafter referred to "the Park"). At that meeting, FCT

voted unanimously to approve the City's request. The vote

constituted final agency action and was subsequently published

in the Florida Administrative Weekly on March 10, 2000.

On March 30, 2000, William Howard Solomon (Petitioner,

hereafter referred to as "Mr. Solomon") filed a Petition for

Administrative Proceedings with FCT. Said petition alleged that

FCT's decision did not comply with the requirements of Section

267.061, Florida Statutes.

At its next regularly scheduled meeting on May 15, 2000,

FCT voted to refer Mr. Solomon's petition to the Division of

Administrative Hearings for a formal hearing pursuant to Section

120.57(1), Florida Statutes. FCT filed the petition with the

Division of Administrative Hearings on May 17, 2000.

The Division of Administrative Hearings issued an Initial

Order on May 22, 2000. FCT and Mr. Solomon filed unilateral

responses to the Initial Order on June 2, 2000, and June 5,

2000, respectively.

On June 6, 2000, the undersigned issued a Notice of Hearing

by Video Teleconference. Said notice scheduled the hearing for

August 8, 2000.

On June 7, 2000, FCT filed an Answer and Affirmative

Defenses. FCT's affirmative defenses included the following:

(a) failure to state a cause of action; (b) estoppel; and (c)

lack of standing. Mr. Solomon filed a Reply and General Denial

of Affirmative Defenses on August 16, 2000.

On June 19, 2000, Mr. Solomon filed an unopposed Motion for

Continuance. An order dated June 21, 2000, granted the motion

and rescheduled the hearing for August 28-29, 2000.

On June 23, 2000, the City filed a Motion to Intervene.

This motion was granted by order dated July 13, 2000.

On July 21, 2000, the Mandarin Community Club (Intervenor,

hereafter referred to as "MCC") filed a Motion to Intervene and

Request for Preliminary Hearing on Standing. FCT filed a

response in opposition to this motion on July 24, 2000. An

order dated July 31, 2000, granted the MCC's Motion to Intervene

subject to proof of standing during final hearing and denied the

Request for Preliminary Hearing on Standing.

On August 24, 2000, FCT filed a Motion in Limine. When the

hearing commenced, the undersigned heard oral arguments on this

motion, reserving the right to rule on the admissibility of

evidence at the time of its presentation.

During the hearing, Mr. Solomon and MCC, acting jointly,

presented the testimony of the following witnesses: Barbara

Mattick, Roy Hunt, Herschel E. Sheppard, William Jeter, Jr.,

Leslie Keys, Jerry Spinks, and Robin Robbins-Merritt. Mr.

Solomon and MCC offered 24 joint exhibits that were accepted

into evidence.

FCT presented the testimony of Anne Perry and Grant

Gelhardt. FCT offered 12 exhibits that were accepted into

evidence.

The City called Robbin Robbins-Merritt and Karen Jones

Roumillat as witnesses. The City offered 9 exhibits that were

admitted into evidence.

The court reporter filed the Transcript of the proceeding

on October 2, 2000. The parties filed Proposed Findings of Fact

and Conclusions of Law on October 12, 2000.

FINDINGS OF FACT

1. In 1993, the City applied to FCT for grant monies to

acquire approximately 10 acres of land for the Park, which is

located on the St. Johns River in a suburb of the City commonly

known as "Mandarin." This project was assigned FCT Project No.

93-006-P3A.

2. The original management plan for the Park stated that

the City was acquiring the Park for the purposes of: (a)

preserving and protecting natural vegetation; (b) providing

environmental and historical education; and (c) providing

passive resource-based outdoor recreation.

3. On or about September 28, 1994, FCT approved the City's

original management plan for the Park, which states as follows

in part:

1. Introduction

This site is located on County Dock Road,

accessible from Mandarin Road in the area of

Jacksonville known as Mandarin. Submitted

as County Dock Historical Park, the park

will be officially known as Walter Jones

Park.

The main purpose for the acquisition of this

site is to preserve the historic home. This

home was built around 1875 and includes

contributing structures on the site such as

the cypress barn, dated 1876, and

outbuildings. . . .

The intent of the City is to provide a one-

day tour in the Mandarin area which will

include historic sites and structures along

Mandarin Road. The focus of the tours will

be on the interpretation of the park in

relation to the history of the Mandarin

area.

* * *

Currently located on the project site are

three houses. The house which fronts

Mandarin Road [hereafter referred to as the

1939 house] is appropriate housing for a

security person. The second house is in

disrepair and will need to be demolished.

The third house is the historic Major

William Webb home. The management of the

project will center around the Webb home and

historical aspects of the Mandarin area.

* * *

The City will request written approval from

the Florida Communities Trust before

undertaking any site alterations or physical

improvements that are not addressed in the

original approved management plan.

* * *

. . . The City is proposing a contractual

agreement with the Museum of Science and

History for the management of this

site. . . .

* * *

. . . Security will be provided by an on-

site manager located at the entrance of the

project site. Security personnel generally

consist of police officers which would

provide on-site security and in turn, reside

at the site [in the 1939 house].

The overall goal of the historic education

is to teach the historical aspects of the

site as well as the Mandarin area in

general. The historic home was built circa

1875 and subsequently, a citrus operation

and pier for loading crops on barges was in

use. . . . It is anticipated that as an

interpretive site, this project may be

phased to include first an outdoor passive

interpretation and, at a later date, active

interpretation if deemed appropriate based

on the first year assessments. These first

year assessments will determine specific

historic education programs based on the

time period selected for interpretation.

The long-term objective is to provide

outdoor passive interpretation which would

be coordinated with other historic sites in

Mandarin. . . .

. . . This project is the site of the

historic Major William Webb home, along with

several remaining outbuildings. . . .

The significance of this site is not only in

the home, but also in the presence of the

contributing structures and the relationship

to the Mandarin community of the

1880's. . . .

. . . The Museum of Science and History is

interested in a satellite facility to their

downtown Jacksonville location. Management

of the site would be coordinated with the

Museum, acting as the managing entity for

the physical maintenance and as coordinators

of the education programs and volunteer

staff. Several community groups are

available and willing to assist in the

project; Mandarin Community Club, Mandarin

Women's Club, Mandarin Garden Club, and

Mandarin Historical Society.

6. In November 1994, the City's Planning and Development

Department, together with the Honorable Dick Kravitz,

Councilman, filed an application for designation of the Park as

a landmark or landmark site with the Jacksonville Historic

Preservation Commission (hereafter referred to as JHPC). This

application indicates that the "period of significance" for the

Park is 1875 through 1945. The application describes the 1939

house, also known as the Mandarin Road House, as follows in

part:

Located near the northwest corner of

Mandarin Road and County Dock Road is a one

and one half story wood frame house with

horizontal wood siding. Facing Mandarin

Road, this house features a small gable

stoop porch, two gable dormers, and a porte

cochere on the east side. . . . The actual

construction date of this bungalow with

Colonial Revival influences has not been

determined. However, in 1933, eight lots

were platted along Mandarin Road, and filed

as the Edith Jones Subdivision. The house,

based on its style, material and method of

construction, was probably constructed in

the 1930's. . . .

7. Around 1995, the City contracted with the University of

Florida, College of Architecture, to document and research the

various buildings located at the Park. Hershel Shepard, an

architect and professor at the University of Florida,

participated in the study and assisted in the preparation of a

report, detailing the historical research of the extant

structures at the Park. The report did not reference the 1939

house as a structure needing preservation. Professor Shepard

and his associates did not perform any formal study or cost

benefit analysis regarding the possibility of the City building

a museum behind the 1939 house.

8. On or about August 27, 1998, FCT approved a revised

management plan for the Park. Under the revised plan, the City

identified the 1939 house as being appropriate for possible

future use as a museum and visitor center operated by the

Mandarin Museum and Historical Society (hereafter referred as

MMHS). The revised plan stated the City's intention to obtain a

satisfactory historic house to be moved to the project site to

house security personnel. The City intended to locate the

additional historic home facing County Dock Road, on or near the

location of the demolished John Woolfe house, otherwise known as

the "Butterfly House."

9. The placement of the security residence on the site of

the demolished John Woolfe house would provide closer protection

for the historic Walter Jones farm structures located near the

river and the county dock on the river. Moreover, placement of

the security residence at the proposed site did not interfere

with the final park design that restricts the location of park

amenities relating to identified wetlands and a conservation

easement resulting from mitigation of wetlands impacted by a

proposed pedestrian trail and boardwalks.

10. The City was unable to locate a suitable home that it

could move to the proposed site to serve as a security

residence. Additionally, low overhanging live oaks on Mandarin

Road made a move to the proposed site by land impossible, and

the water depth at the county dock would not allow access by

barge.

11. In the meantime MMHS found the 1939 house to be

unsuitable for use as a museum and visitor center for the

following reasons: (a) the rooms of the house are very small;

(b) the front door cannot be opened fully because of the

placement of the stairs; (c) there is no handicapped

accessibility; and (d) the structure basically would have to be

gutted for use as a public building. Consequently, MMHS

proposed that the 1939 house, which was already located on the

site and being used as the residence of the security officer, be

moved approximately 250 feet to the approved site for the

security residence. MMHS also suggested that the City construct

a new, site-specific structure for the museum and visitor

center.

12. The City's Department of Parks, Recreation and

Entertainment (hereafter referred to as the Parks Department)

sought the approval of JHPC in Certificate of Appropriateness

(COA) No. 99-17 to relocate the 1939 house to the vacant site of

the demolished John Woolfe house facing County Dock Road. The

City's Planning and Development Department prepared a staff

report dated January 27, 1999, recommending that JHPC approve

COA-99-17. The report states as follows in part:

Although constructed during the period of

significance (1875-1945) identified in the

Landmark and Landmark Site designation of

the Major William W. Webb Farm, A/K/A, the

Walter Jones Farm . . . the c. 1939 house

was built on one of the eight lots along

Mandarin Road subdivided by Edith Jones in

1933. Because of its age, style, and

materials, the c. 1939 house is distinctive

architecturally and historically from the

pre-1900 farm buildings. Therefore it is

the opinion of the Planning and Development

Department that the c. 1939 house could be

relocated to face County Dock Road without

significantly impacting the remaining

historic buildings located at the park.

13. JHPC subsequently considered COA-99-17, decided not to

approve relocation of the house, then rescinded its decision and

tabled COA-99-17 as an agenda item.

14. Early in February 1998, Jerry Spinks, as Chairman of

JHPC, contacted Leslie Keys, Historical Resources Administrator

in the St. Augustine Regional Office of the Department of State,

Division of Historical Resources (hereafter referred to as DHR).

Mr. Spinks asked Ms. Keys to review the JHPC's tabled agenda

item, COA-99-17, including the Planning and Development

Department's staff report.

15. In a letter dated February 8, 1999, Ms. Keys stated as

follows in part:

. . . While this building has merit as an

example of 1930s frame vernacular building

construction, it is outside the period of

significance for the farm. In other words,

this building does not assist in the

understanding and portraying [of] the 19th

century farm complex--which is the unique

and important aspect of the property.

* * *

The city is to be commended for preserving

the building and reusing it. The relocation

recognizes that a building of another

historic period, the early 20th century, can

contribute to the site in a secondary

capacity.

16. On or about May 12, 1999, the City's Parks Department

filed new applications with JHPC for COAs, seeking the

following: (a) in COA-99-159, to relocate the 1939 house to the

vacant site of the demolished John Woolfe house facing County

Dock Road within the boundaries of the Park; and (b) in COA-99-

160, to construct a museum/education center within the Park.

17. The application for COA-99-159 included cost

comparisons for the following: (a) in Option 1, renovation of

the 1939 house for use as a museum and educational center and

building a new house for a security residence; and (b) in Option

2, moving the 1939 house for continued use as a security

residence and building a new use appropriate museum and

education facility. The total cost for Option 1 was $291,126.

The total cost for Option 2 was $266,000.

18. A report from Historic Property Associates, Inc. was

attached to the application for COA-99-159 as Exhibit A. This

report supported the City's position that relocation of the 1939

house would not impact any properties listed or eligible for

listing on the National Register of Historic Places.

19. The City's Planning and Development Department issued

a staff report dated May 26, 1999. This report recommended that

the JHPC approve COA-99-159.

20. On June 23, 1999, the JHPC conducted a public hearing

on the Parks Department applications. During this quasi-

judicial proceeding, numerous persons testified for and against

the proposed relocation of the 1939 house. At the close of the

hearing, the JHPC voted to approve the COAs.

21. Mr. Solomon appealed the JHPC's decision to the City's

Urban Affairs and Planning Committee (hereafter referred to as

UAPC). On September 21, the UAPC conducted a public hearing to

review the JHPC's approval of COA-99-159 and COA-99-160. During

the quasi-judicial proceeding, the UAPC considered the record

made before the JHPC and heard additional testimony for and

against the relocation of the 1939 house from many witnesses.

The testimony included the reading of portions of the February

8, 1999, letter written by Ms. Keys. At the conclusion of the

hearing, the UAPC voted to affirm the JHPC's decision to

relocate the 1939 house.

22. The UAPC 's decision was therea fter appealed to the

full Jacksonville City Council, which heard the matter on

September 28, 1999. The City Council voted to affirm the

decisions of the JHPC and UAPC. The City Council adopted

Resolution 1999-880-A, which constituted final agency action

approving COA-99-159 and COA-99-160.

23. Ms. Karen Jones-Roumillat is the great-granddaughter

of Walter Jones. By letter dated September 28, 1999, Janet

Matthews, Chief of the Bureau of Historic Preservation, DHR, and

State Historic Preservation Officer, replied as follows, in

part, to an inquiry from Ms. Jones-Roumillat:

Thank you for your letter regarding the

relocation of the 1939 House within the

Walter Jones Historical Park, which

incorporates the Major William W. Webb Farm

that dates from the 1870s. . . .

The information available to this office

indicates that the period of significance

for the Major William W. Webb Farm

identified in the local designation report

is 1875 to 1945. Given the construction

date with the period of significance and the

apparent high degree of physical integrity

of the 1939 House, it must be considered to

contribute to the significance of the

property. On that basis, the 1939 House is

potentially eligible for the National

Register as a contributing building in that

historic complex.

According to the National Register criteria

for evaluation, historic significance is

embodied in location and setting as well as

in the individual buildings and structures

that contribute to it. The National Park

Service advised that relocation of an

historic property may adversely affect its

historic significance, often rendering it

ineligible for listing on the National

Register.

Because the 1939 House is considered to be a

significant element of the historic

development of this site, its relocation

must be considered to have an adverse effect

on the overall significance of the property.

For this reason, as well as best

preservation practice advice, the 1939 House

should be retained on its original site.

It is acknowledged, however, that the focus

of the "archaeological and historical

resource" component of the approved County

Dock Road Historical Park Management Plan

(Now Walter Jones Historical Park) involves

the preservation and interpretation of the

nineteenth century Webb Farm site, including

the 1870s house, barn and other associated

structures. The plan further indicates that

the 1939 House may be used as a security

residence. Thus, in the context of the

currently approved plan, the 1939 House is

of subordinate significance to the buildings

and structures related to the Webb period of

development of the site. If, on this basis,

the City of Jacksonville determines that

relocation of the 1939 House is necessary to

the development of the Walter Jones

Historical Park, it is the opinion of this

office that the following conditions should

be met: . . . .

24. On or about October 28, 1999, Mr. Solomon filed a

Petition for Writ of Certiorari in the Circuit Court, Fourth

Judicial Circuit, in and for Duval County, Florida, Case No. 99-

6403, to challenge the City Council's decision. By order dated

November 3, 1999, the petition was dismissed without prejudice.

25. On or about November 23, 1999, Mr. Solomon filed an

Amended Petition for Writ of Certiorari in Case No. 99-6403.

The Circuit Court Judge subsequently entered a Final Order

Denying Amended Petition for Writ of Certiorari. However, Mr.

Solomon filed a motion for reconsideration, resulting in an

Order Vacating Final Order Denying Amended Petition for Writ of

Certiorari dated April 27, 2000.

26. On or about May 12, 2000, Mr. Solomon filed a Second

Amended Petition for Writ of Certiorari. This petition raised

due process issues. It also raised questions regarding the

merits of the City's decision, including, but not limited to:

(a) whether the City relied on incorrect information concerning

the Park's period of significance as set forth in the February

8, 1999, letter from Ms. Keys; and (b) whether the City

erroneously relied on the Keys letter as evidence that DHR

supported the relocation of the 1939 house. Mr. Solomon

included the September 28, 1999, letter from Ms. Matthews in the

appendix to the Second Amended Petitioner for Writ of Certiorari

27. On July 7, 2000, the Circuit Court entered a Final

Order Affirming Administrative Order in Circuit Court Case No.

99-6403. On October 26, 2000, the District Court of Appeal,

First District, filed a per curiam opinion in Case No. 1D00-

3258, denying Mr. Solomon's Petition for Writ of Certiorari.

28. In the meantime, the City had to obtain FCT's approval

to modify the Park's management plan. By letter dated October

7, 1999, the City requested that FCT approve the relocation of

the 1939 house for use as a security residence.

29. FCT's staff reviews all proposed management plans and

all proposed revisions to those plans. FCT's staff also

solicits comments, advisory in nature, from outside agencies

with expertise in technical matters such as historic resources.

In this case, FCT's staff sought DHR's opinion regarding the

relocation of the 1939 house.

30. In a letter dated November 5, 1999, Ms. Matthews

responded to FCT's request for comments. The letter states in

part as follows:

. . . [I]t is our opinion that the 1939

House is potentially eligible for listing in

the National Register of Historic Places as

a contributing structure to a historic

district encompassing the entire 10.3 acres

of the site. This opinion is based on the

following factors:

a. The building's age clearly falls within

the established period of significance for

the site: 1875-1945.

(b) The building reflects a continuum of

site development, a later period of the

historic development of the property by the

Webb and Jones families. In this regard,

subdivision of the property in 1933 and

construction of the 1939 House are

representative of a significant change in

the development history of the Mandarin

community from farming to residential

related to the 1921 completion of the Acosta

Bridge and the economic conditions of the

time.

(c) The building has not been significantly

altered since its construction in 1939.

* * *

It is our further opinion that relocation of

the 1939 House would have an adverse affect

on the historic integrity of the individual

structure, as well as that of the 10.3-acre

property. In addition, the proposed

relocation would further erode the historic

character of Mandarin Road, removing one of

the few remaining historic structure from

this scenic corridor. [sic]

* * *

. . . While the applicant has presented an

argument for the need of relocating the 1939

House, it is the opinion of this office that

at least one prudent and feasible

alternative to relocation is possible.

Our architectural staff believes it possible

to successfully integrate the 1939 House

into a new museum compound by:

a. Rehabilitating the 1939 House . . . to

provide: (1) a series of museum galleries

to present the history of the site and its

relationship to the development of the

region, and (2) an administrative office for

the Mandarin Historical Society;

b. Constructing a classroom and

environmental education building to the

north of the 1939 House, providing an

opportunity for broad vista of the wetlands

to the west;

c. Incorporating the necessary

accessibility ramp into the design of the

new structure; and

d. Linking the historic building and the

new classroom by an open covered connector

at the elevation of their common finished

floor elevation.

Further, it is our opinion that a modest

residence can be constructed for the on-site

security officer off of County Dock Road

(on, or near, the site of the demolished

"Butterfly House") without adversely

affecting the historic integrity of the

property. . . .

It is the opinion of this agency that the

development approach described above offers

a feasible alternative to the adverse

effects associated with the proposed amended

Management Plan. We strongly recommend that

the proposed amendment be modified to retain

the 1939 House on its original site.

31. FCT's staff completed its review of the City's

proposed amendment to the management plan. The staff prepared a

memorandum for FCT's Governing Board, including a recommendation

that FCT deny the proposed modification to the management plan.

32. Approximately a week prior to the January 26, 2000,

meeting of FCT's Governing Board, the members were given an

agenda packet containing the staff's memorandum/recommendation,

project summary and supporting materials. The supporting

materials included twenty-seven letters received by FCT in

support of the relocation of the 1939 house and two letters in

opposition to the relocation of the 1939 house.

33. The agenda packet included two letters written by Mr.

Solomon. These letters summarized Mr. Solomon's historic

preservation and Chapter 267, Florida Statues, arguments for the

FCT Governing Board.

34. Also included in the packet was a letter dated

November 29, 1999, from John Delaney, the City's Mayor. This

letter stated in part as follows:

For several months, the City has been

pursuing approval to relocate a newer house

that is also located on the property closer

to the farm for use as a security residence.

This relocation is a key element in the

development of the park.

* * *

Originally, a letter of support was obtained

in February from Leslee Keys, Historical

Resources Administrator for the St.

Augustine Regional Preservation Office.

This was followed by several letters in

March and September from the Bureau of

Historic Preservation in Tallahassee, which

offered several opinions and suggestions.

The March letter concluded that the

relocation of the house was a local matter.

We have always recognized the importance of

DHR comments and incorporated the four

recommendations found in the September 28th

letter. This commitment was reflected in

the October 7th letter to Ralph Cantral that

accompanied our requested revisions to the

Management Plan.

We were surprised that following final local

approval, including support from this

office, a letter was sent to FCT in November

from Janet Snyder Matthews, new Chief of the

Bureau of Historic Preservation opposing the

house move.

35. One of the letters in the agenda packet was from

Ms. Jones-Roumillat. The letter dated November 8, 1999,

indicated her support for the relocation of the 1939 house.

36. Mr. Solomon received notice of the FCT Governing Board

meeting scheduled for January 26, 2000. However, he was unable

to attend the meeting.

37. At the meeting on January 26, 2000, several persons

spoke for and against the request to relocate the 1939 house.

The following persons spoke in favor of the relocation: Shorty

Merrit (City Planner); Beth Meyer (MMHS); Jim Towart (MMHS);

Susan Ford (MMHS); Karen Jones-Roumillat (MMHS and descendant of

Walter Jones); and Karl Sanders (Assistant City Attorney). The

following persons spoke against relocation of the house:

Herschel Shepard (Architectural Consultant and former University

of Florida Professor); Emily Lisska (Jacksonville Historical

Society); William Jeter, Jr. (MCC); Ruth Daniels (MCC); Deanne

Clark (MCC); David Ferro (DHR); Jan Matel (DHR); Barbara Mattick

(DHR); and Frederick Gaske (DHR).

38. At the January 26, 2000, meeting, FCT's Governing

Board heard conflicting opinions regarding the relocation of the

1939 house. These opinions were very similar to the testimony

considered by the City's JHPC and UAPC when they voted to

approve relocation of the house.

39. Moreover, the FCT Governing Board was fully apprised

of DHR's opposition to the relocation of the house. The

Governing Board was aware of DHR's position in the February 8,

1999, Keys letter, the September 28, 1999, DHR letter, and the

November 5, 1999, DHR letter.

40. All persons speaking before FCT's Governing Board were

treated courteously. The Governing Board gave everyone an

opportunity to make his or her presentation in full.

Petitioners do not allege any procedural due process violations

by FCT.

41. After approximately one and one-half hours of public

comment and deliberation, FCT's Governing Board voted 4-0 to

approve the requested modification to the management plan. It

is not unusual for FCT's Governing Board to disagree with its

staff recommendation on any given matter.

42. Mr. Solomon filed a timely administrative petition,

challenging the Governing Board's action. MCC intervened

thereafter.

43. MCC was founded in 1923. Its first president was

Walter Jones. MCC states its purpose as follows:

The mission of the Mandarin Community Club

is to promote and insure the preservation,

beautification, and environmental well-being

of Mandarin; to provide educational programs

and meetings for the club's membership and

the community; to enhance the cultural and

recreational life of the citizens of

Mandarin; and to maintain the historic

structures and property owned by the club.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569, 120.57(1), and 380.507(11),

Florida Statutes.

44. Mr. Solomon and MCC have the burden of proving by a

preponderance of the evidence that they have standing to

challenge FTC's decision to approve the relocation of the 1939

house, and if so, whether FCT properly exercised its discretion

to approve that decision. Young v. Department of Community

Affairs , 625 So. 2d 831, 833-35 (Fla. 1993); Section

120.57(1)(j), Florida Statutes.

45. Section 380.502(1), Florida Statutes, states as

follows in pertinent part:

380.502 Legislative findings and intent.--

(1) The Legislature finds the conservation

of natural areas is vital to the state's

economy and ecology. . . . Finally, the

Legislature finds that the quality of life,

environmental quality, as well as the

viability and vitality of the urban areas of

this state are directly linked to urban open

space and greenways. The creation of

greenways; expansion of green spaces;

enhancement of recreation areas; and

protection and restoration of urban lakes,

rivers, and watersheds in the urban areas of

this state are necessary to link populated

areas with natural areas, preserve unique

cultural and heritage sites . . . .

46. The Legislature established FCT as a non-regulatory

state agency to provide financial and technical assistance to

local governments to carry out projects and activities and to

develop programs authorized by Chapter 380, Part III, Florida

Statutes. Section 380.502(3)(b), Florida Statutes. Its

governing body consists of the Secretary of the Department of

Community Affairs, the Secretary of the Department of

Environmental Protection, and three members of the public,

appointed by the Governor and subject to Senate confirmation.

Section 380.504(1), Florida Statutes.

47. Section 380.508, Florida Statutes, provides

as follows in relevant part:

(3) In accordance with procedures adopted

by the trust, local governments and

nonprofit organizations may propose projects

for the trust to consider for funding or

technical assistance. . . .

(4) Projects or activities which the trust

undertakes, coordinates, or funds in any

manner shall comply with the following

guidelines:

* * *

(e) The trust shall cooperate with local

governments, state agencies, federal

agencies, and nonprofit organizations in

ensuring the reservation of lands for parks,

recreation, fish and wildlife habitat,

historical preservation, or scientific

study. . . .

(5) The governing body of the trust shall

approve projects, project plans, grants, and

loans according to rules which it shall have

adopted and which are consistent with the

provisions of this part. . . .

* * *

(8) The trust shall coordinate its

activities with other state agencies

responsible for land use, environmental

protection, and land acquisition to avoid

unnecessary duplication and to solicit the

help and expertise of existing state

personnel.

48. After receiving conceptual approval from FCT,

applicants for grant funds must prepare and furnish FCT with a

project plan. Rule 9K-4.0011, Florida Administrative Code. The

project plan must include the following among other things:

A management plan which at a minimum sets

forth how the site will be managed to

further the purposes of the project, a

description of all planned improvements to

the project site, the costs and the funding

sources, and the management entity and its

funding sources. . . .

Rule 9K-4.011(1)(b), Florida Administrative Code.

49. The FCT governing body decides whether to approve or

reject the project plan, of which the final management plan is a

part. Rule 9K-4.0011(2), Florida Administrative Code.

Consequently, the FCT governing body must approve or reject any

modification of the management plan.

50. Section 267.061(2), Florida Statutes, states as

follows in pertinent part:

(2) RESPONSIBILITIES OF STATE AGENCIES OF

THE EXECUTIVE BRANCH.--

* * *

(b) Each state agency of the executive

branch shall initiate measures in

consultation with the division [DHR] to

assure that where, as a result of state

action or assistance carried out by such

agency, a historic property is to be

demolished or substantially altered in a way

which adversely affects the character, form,

integrity, or other qualities which

contribute to historical, architectural, or

archaeological value of the property, timely

steps are taken to determine that no

feasible and prudent alternative to the

proposed demolition or alteration exists,

and, where no such alternative is determined

to exist, to assure that timely steps are

taken either to avoid or mitigate the

adverse effects, or to undertake an

appropriate archaeological salvage

excavation or other recovery action to

document the property as it existed prior to

demolition or alteration.

(c) In consultation with the division

[DHR], each state agency of the executive

branch shall establish a program to locate,

inventory, and evaluate all historic

properties under the agency's ownership or

control that appear to qualify for the

National Register. Each such agency shall

exercise caution to assure that any such

historic property is not inadvertently

transferred, sold, demolished, substantially

altered, or allowed to deteriorate

significantly.

51. In this case, Mr. Solomon, in his individual capacity,

does not have standing to challenge the decision of FCT's

Governing Board. In other words, he has not proved that his

"substantial interests will be affected by the proposed agency

action." Sections 120.52(12) and 120.569(1), Florida Statutes.

52. Under Agrico Chemical Co. v. Department of

Environmental Protection , 406 So. 2d 478 (Fla. 2nd DCA 1981),

Mr. Solomon must show that: (a) he will suffer an injury in

fact which is of sufficient immediacy to entitle him to a formal

administrative hearing; and (b) his substantial injury is of the

type or nature which the proceeding is designed to protect. Mr.

Solomon fails to prove standing under the first prong of this

test.

53. Mr. Solomon asserts that he has standing to bring this

action for the following reasons:

a. He resides in close proximity to the

1939 house and travels by it on a daily

basis.

b. He elected to purchase his home because

of the historic homes and historic features

along Mandarin Road.

c. The 1939 house and its location along

Mandarin Road contributed significantly to

his home purchase decision and his

perception of the neighborhood as having old

village charm and historic characteristics.

d. He would suffer great distress and have

a sick feeling if the 1939 house were to be

moved.

e. Mandarin's history as depicted by

historic properties of great importance to

him, and he has a substantial interest in

preserving the history of his neighborhood.

f. His business interests in providing

historical tours on or near the historical

park would be adversely affected if the 1939

house were to be moved.

g. The historical value of the property

would be diminished thus causing him to

suffer if the 1939 house were to be moved.

54. Mr. Solomon concedes that he has no contractual or

privity relationship with the City concerning the park. He does

not claim that moving the 1939 house will decrease the fair

market value of his home. He presented no persuasive details as

to how his business of conducting historical tours in the

Mandarin community and on the St. Johns River would be damaged

by the relocation of the 1939 house. The good feelings he has

when he drives by the 1939 house and other historical buildings

along Mandarin Road do not constitute a substantial injury in

fact. The sick feelings that Mr. Solomon would have if the City

were to relocate the building, regardless of their sincerity,

are too speculative to confer standing.

55. On the other hand, MCC has met its burden of proving

its standing to bring this action. "To meet the requirement of

standing under the APA [Administrative Procedure Act], an

association must demonstrate that a substantial number of its

members would have standing." Friends of the Everglades, Inc.

v. Board of Trustees of the Internal Improvement Trust Fund , 595

So. 2d 186, 188 (Fla. 1st DCA 1992) quoting Florida Home

Builders Ass'n v. Department of Labor , 412 So. 2d 351 (Fla.

1982). "To properly apply the Agrico test, [one] must analyze

both the type and nature of the injury asserted and the purpose

and scope of the administrative proceeding." Friends of the

Everglades , 595 So. 2nd at 189.

56. MCC bases its standing on the following relevant

facts:

a. MCC will suffer direct injury to its

reputation and its mission of preserving the

historical resources of the Mandarin

community if the 1939 house is moved.

b. Moving the 1939 house would adversely

affect MCC's ability to promote and ensure

historic preservation in the Mandarin

Community.

The greater weight of the evidence indicates that MCC will not

be deterred in its efforts to preserve the historical structures

in the Mandarin community if the 1939 house is moved. Competent

evidence indicates that MCC will continue to be respected as

organization interested in the historical preservation of

Mandarin. Relocation of the 1939 house will not change MCC's

mission, but as discussed below, it may adversely impact the

club's interest in promoting and ensuring historic preservation

in Mandarin.

57. During the hearing, Mr. Jeter, a member of MCC, opined

as follows:

[T]he club is an advocate of the historic

integrity of Mandarin and we believe that

the historic integrity of Mandarin will be

impaired if the [1939 house] is moved. We

believe that the city's ordinance regarding

the designation of local historic sites will

be compromised if [the 1939 house] is moved.

We believe that future protection of the

historical monuments in Mandarin and

Jacksonville as a whole, for that matter,

will be compromised if it is moved.

The record here provides no persuasive evidence to support these

allegations. Moreover, FCT has no jurisdiction to consider the

alleged impact on the City's ordinance regarding the designation

of local historic sites.

58. MCC argues that its financial interests would be

damaged if the City relocates the house. There is no persuasive

evidence to support this allegation.

59. MCC argues that it has standing because the City

involved the club and its members in establishing the Park.

There is no merit to this argument. Under Friends of the

Everglades , 595 So. 2d at 189, MCC cannot assert standing based

on its voluntary efforts toward the Park's creation.

60. Like Mr. Solomon, MCC admits that it does not have any

contractual or privity relationship with the City regarding the

Park. The lack of MCC's legal or equitable ownership interest

in the Park does not necessarily preclude standing. In Friends

of the Everglades , 595 So. 2d at 189, the Court stated as

follows:

While property ownership in a particular

location may be a factor in establishing

substantial injury in certain types of

proceedings, it is not necessarily a factor

in all proceedings. The nature of the

injury which is required to demonstrate

standing will be determined by the statute

which defines the scope or nature of the

proceeding.

61. During the hearing, MCC presented evidence that moving

the 1939 house would preclude or impair MCC's use of the house

to accurately demonstrate the change in economic development of

the area and the change in the principle means of transportation

over time. To the members of MCC, the exact location of the

1939 house on Mandarin Road is necessary to show how Mandarin

evolved from a farming settlement on the river in the 1800s to a

residential community along Mandarin Road during the depression

of the 1930s. According to MCC, the existence of the house on

Mandarin Road allows the club to educate the public about the

relationship between two significant eras in the development of

Mandarin.

62. In Friends of the Everglades , 595 So. 2d at 190, the

petitioner alleged that its members, who lived near the subject

property, were using the property for recreation and educational

purposes consistent with the intent of Section 253.023, Florida

Statues. The petitioner in Friends of the Everglades also

alleged that its members would no longer be able to use the

property for these purposes if the property was used as a

juvenile facility. The Court held that the petitioner had

"alleged sufficient facts, if determined to be true, to

constitute injury of the type which [Section 253.023, Florida

Statutes] is designed to protect" Friends of the Everglades ,

595 So. 2d at 190.

63. Here as in Friends of the Everglades , the nature of

MCC's alleged "use" of the 1939 house in its present location is

the type of interest that the proceeding before FCT's Governing

Board was designed to protect. Relocation of the 1939 house may

impair MCC's alleged future "ability to use" the house as an

interpretive historical property.

64. The interests of MCC were well represented in the

local proceedings before the JHPC and UAPC. Those proceedings

were conducted pursuant to a local ordinance. MCC was not a

party to the subsequent judicial proceedings that reviewed the

City's action in approving COA-99-159. The local proceedings

and the subsequent judicial proceedings were not designed to

ensure that FCT acted in accordance with the legislative mandate

set forth in Chapter 380, Part III, and Section 267.061, Florida

Statutes. Therefore, MCC's claims are not barred by legal

theories involving election of remedies, collateral estoppel, or

res judicata.

65. On the merits of the case, there is no persuasive

evidence that FCT's Governing Board abused its discretion in

approving the relocation of the 1939 house. FCT's Governing

Board did not act arbitrarily, capriciously, dishonestly, or

illegally in approving the requested change to the management

plan of the Park. Contrary to Mr. Solomon's assertions, FCT did

not merely rubber stamp action taken by the City.

66. FCT considered differing opinions as to whether the

relocation of the house would destroy its historical integrity

or adversely affect the historical integrity of the Park as a

whole. FCT also considered conflicting evidence regarding the

existence of feasible and prudent alternatives to relocation of

the building. Finally, FCT heard contrary arguments whether the

proposed amendment to the management plan would have an adverse

effect on properties listed or eligible for listing on the

National Register of Historic Places.

67. Competent evidence indicates that the extensive

alterations and expansions necessary to convert the 1939 house

into a visitors' center and museum would significantly affect

its individual architectural and historic integrity, as well as

its contribution to the entire historic site. On the other

hand, relocating the house to serve in its original capacity as

a residence preserves its architectural and historical integrity

to the fullest extent possible, while allowing the City to

construct a site-appropriate museum and visitors' center. The

proposed modification of the management plan incorporates

safeguards that allow the 1939 house to remain a contributing

element to the historical integrity of the Park.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCT enter a final order dismissing the Petition for

Administrative Proceedings.

DONE AND ENTERED this 14th day of November, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of November, 2000.

COPIES FURNISHED:

William Howard Solomon, Esquire

1625 Emerson Street

Jacksonville, Florida 32207

Geoffrey T. Kirk, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Karl J. Sanders, Esquire

City of Jacksonville

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

Cari L. Roth, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Steven M. Seibert, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.