05-000943GM Denis Potiris vs. Department Of Community Affairs And Village Of Wellington, Florida Status: Closed Recommended Order on Friday, May 13, 2005.

Summary: Petitioner, a planning consultant who lived and had an office outside of the local government`s jurisdiction, was not operatiing a business within the jurisdiction and therefore was not an "affected person."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENIS POTIRIS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0943GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and VILLAGE OF )

WELLINGTON, FLORIDA, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

On March 11, 2005, the Department of Community Affairs

(DCA) referred to the Division of Administrative Hearings

(DOAH) a Petition for Formal Administrative Hearing to

Challenge the "In Compliance" Proposed Agency Determ ination

(Petition). The Petition was directed to a Comprehensive Plan

Amendment adopted by the Village of Wellington (Village) by

Ordinance No. 2004 - 30. It was assigned DOAH Case No. 05 -

0943GM and later was scheduled for final hearing on May 2 - 3,

2005.

Petitioner's Standing

On March 22, 2005, the Village filed a Motion to Dismiss

the Petition for lack of standing (and other reasons). On

Petitioner's motion, the time allotted by Florida

Administrative Code Rule 28 - 106.204(1) 1 for filing responses

was ex tended to April 11, 2005. Petitioner timely filed a

Response in Opposition; DCA did not file a response.

Based on the filings, it was ruled that Petitioner

alleged in a conclusory fashion that he had standing as an

"affected person," as defined by Secti on 163.3184(1)(a),

Florida Statutes, but that he did not explain how, as required

by Rule 28 - 106.201(2)(b). It appeared from Petitioner's

Response in Opposition that he was attempting to explain that

he was an "affected person" under Section 163.3184(1)(a )

because he was "operating a business within the boundaries of"

the Village. Instead, paragraph 5 of the Petition alleged

only that Petitioner practices planning in Palm Beach County,

worked in the Village for four months in 2001, and has since

"spent en ormous amount[s] of time and energy in research and

public advocacy on land use issues in Wellington, speaking at

public hearings, writing to the press, assisting concerned

homeowners, and was a co - founder of a grass roots initiative

that [resulted] in a p etition drive against 'the amendment'

[that] collected over 900 signatures by Wellington residents";

and that the amendment at issue "represents a breakdown of the

comprehensive plan regulation to the detriment of the public

interest and by extension to th e petitioner's advocacy

interest for the rule of law in land use plan in Wellington

. . . ." It was ruled that Petitioner did not allege, and it

could not be inferred from his allegations, that he "is

operating a business within the boundaries of" the Vil lage

See St. Joe Paper Co. v. Department of Community Affairs , 657

So. 2d 27 (Fla. 1st DCA 1995), review denied , 667 So. 2d 774

(Fla. 1996). In part based on that ruling, and because it did

not "conclusively [appear] from the face of the petition" that

P etitioner could not allege that he "is operating a business

within the boundaries of" the Village, the Petition was

dismissed with leave to amend to cure the defect. Cf. Fla.

Admin. Code R. 28 - 106.201(4). However, the ruling noted that

"simply representi ng an 'affected person' in a comprehensive

plan amendment matter was not enough to make a planner an

'affected person' able to petition under Section

163.3184(9)(a), Florida Statutes."

On April 25, 2005, Petitioner filed an Amended Petition.

On April 27 , 2005, DCA filed a Motion to Dismiss the Amended

Petition for lack of standing. The next day, the Village

filed a similar Motion to Dismiss the Amended Petition. At

that point, the final hearing scheduled to commence May 2,

2005, was cancelled pending a ruling, and Petitioner and Bart

Novack were given until May 6, 2005, to respond, and their

responses have been considered.

The Amended Petition specifically alleged that Petitioner

"is operating a business within the boundaries of" the

Village. However , it also explained the allegation: "The

Petitioner's business consists of providing professional

planning services to local interests regarding property

located in Wellington." The Amended Petition alleges

Petitioner's personal residential address in th e City of West

Palm Beach and does not allege a personal or business address

within the boundaries of the Village. In his Response to

Pending Motions to Dismiss, filed May 6, 2005, Petitioner

concedes having no business office in the Village but

elaborate s and argues:

In the land use related consulting business

the location of the office has no relation

to the actual business. The business that

may be affected by jurisdictional action is

associated with the location of properties

within the jurisdiction . In order to

provide land use related services for

properties in Wellington, a consultant is

not required to have an office in

Wellington.

Petitioner having been given the opportunity to cure the

defect in the original Petition, and Petitioner having alleged

the factual basis for his alleged status as an "affected

person" under Section 163.3184(1)(a), it is now possible to

rule on Petitioner's standing as a matter of law.

Accepting all of Petitioner's factual allegations as

true, as required at this stage of the proceeding, it is ruled

as a matter of law that Petitioner would not be "operating a

business within the boundaries of" the Village. Petitioner

may have consulting clients in the Village, and may give

planning advice regarding property in the Village, but that is

not enough to make him an "affected person" operating a

business in the Village. See St. Joe Paper Co. v. Department

of Community Affairs , supra . Petitioner's allegations can be

distinguished from the kinds of businesses being opera ted by

not - for - profit organizations within the local government's

boundaries in cases where they were accorded standing as an

"affected person" on that basis. Cf. The Sierra Club, et al.

v. St. John County, et al. , Final Order No. DCA02 - GM - 189, DOAH

Case Nos. 01 - 1851GM and 01 - 1852GM, 2002 WL 1592234, at *25

(DOAH May 20, 2002; DCA July 30, 2002)( Sierra Club was, for

example, conducting meetings, fundraising activities, and

outings, and participating in governmental decisions, in the

County); 1000 Friends o f Florida, Inc. and Audubon Society of

the Everglades, Inc. v. Department of Community Affairs , Case

No. 01 - 0781GM (DOAH Oct. 2, 2001; DCA Dec. 28, 2001) (1000

Friends of Florida and Audubon Society of the Everglades were

found to "operate a business" in t he Village of Wellington for

purposes of establishing standing by virtue of similar

environmental, advocacy, and educational activities, and

participation in government decisions); Dept. of Community

Affairs v. Lee County , Final Order No. ACC - 96 - 002, DOAH Case

No. 95 - 0098GM, ER FALR 96:118, 1996 WL 1059844, at #32 (DOAH

Jan. 31, 1996; Admin. Comm'n July 25, 1996)(RGMC had offices

in Lee County, conducted educational programs in Lee County,

and had 157 members residing throughout Lee County, most or

all of w hom owned property in Lee County).

Bart Novack

On April 6, 2005, Bart Novack (Novack) requested to be

added/joined as a Petitioner. The request was supplemented on

April 7, 2005. On April 13, 2005, the Village filed a Motion

to Strike/Dismiss Novack's April 6, 2005 Request to be

Added/Joined as Untimely (Motion to Strike/Dismiss). Novack

filed a Reply on April 26, 2005. 2 No other argument on the

Village's Motion to Strike/Dismiss was filed in the time

allotted by Florida Administrative Code Rule 28 - 10 6.204(1).

As the Village's Motion to Strike/Dismiss states, Bart

Novack's request to be added/joined as Petitioner was filed

too late under Section 163.3184(9) and must be dismissed.

It appears from the allegations in Novak's request that

he is an "aff ected person," as defined by Section

163.3184(1)(a), Florida Statutes. Although Section

163.3184(9) does not expressly provide for intervention, it is

at least arguable that his request could be treated as a

petition to intervene under Rule 28 - 106.205. H owever, even if

so treated, as an intervention petition, it would be

subordinate to and dependent on the Amended Petition. See

Humana of Florida, Inc. v. Dept. of Health and Rehabilitation

Services , 500 So. 2d 186 (Fla. 1st DCA 1986), rev . denied , 506

So. 2d 1041 (Fla. 1987). See also Environmental Confederation

of Southwest Florida, Inc. v. IMC Phosphates, Inc. , 857 So. 2d

207, 210 - 211 (Fla. 1st DCA 2003). Dismissal of the Amended

Petition would require dismissal of Novack's request, if

treated as an in tervention petition. 3

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED that DCA enter a final order dismissing the

Amended Petition, as well as Bart Novak's request, and

determining the Village's Plan Amendment (Ordinance 2004 - 30)

to be "in compliance."

DONE AND ENTERED this 13th day of May, 2005, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Par kway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of May, 2005.

ENDNOTES

1/ All rules refer to rules in t he current Florida

Administrative Code. All statute sections refer to the 2004

codification of the Florida Statutes.

2/ On April 28, 2005, the Village filed a Motion to

Strike/Dismiss Novack's Reply, which is denied.

3/ On May 2, 2005, Novack file d a document entitled

"Affirmation Disqualification" seeking disqualification of

counsel of record for the Village on the ground that Novack

intended to call them as witnesses. This Recommended Order of

Dismissal moots Novack's request for disqualificatio n of

counsel. On May 6, 2005, Novack filed a document entitled

"Affidavit in further support Raising Issues." Nothing in it

would change anything in this Recommended Order of Dismissal.

COPIES FURNISHED :

Thaddeus Cohen, Secretary

Department of Comm unity Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Heidi Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

Richard E. Shine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Denis Potiris

134 Greymon Drive

West Palm Beach, Florida 33405

Quentin E. Morgan, Esquire

Brinkley, McNerney, Morgan, Solomon & Tatum, LLP

200 East Las Olas Boulevard, Sui te 1900

Fort Lauderdale, Florida 33301

Bart Novack

15670 Cedar Grove Lane

Wellington, Florida 33414

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 of Dismissal. Any

exceptions to this Recommended Order of Dismissal should be filed

with the agency that will issue the final order in this case.