10-005965GM Clifton Curtis Horton And Horton Enterprises, Inc. vs. City Of Jacksonville Status: Closed Recommended Order on Tuesday, January 11, 2011.

Summary: Plan amendment consistent with State Plan; no requirement to advertise amendment in format prescribed by section 166.041(3)(c)2.b.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLIFTON CURTIS HORTON AND )

HORTON ENTERPRISES, INC., )

)

Petitioner s, )

)

vs. ) Case No . 10 - 5965 GM

)

CITY OF JACKSONVILLE, )

)

Respondent . )

______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard befo re the

Division of Administrative Hearings (DOAH) by its assigned

Administrative Law Judge, D . R. Alexander, on October 20, 2010,

in Jacksonville, Florida.

APPEARANCES

For Petitioner s : Lawrence G. Walters, Esquire

Walters Law G roup

781 Douglas Avenue

Altamonte Springs, Florida 32714 - 2566

Jennifer M. Kinsley, Esquire

Sirkin, Kinsley & Nazzarine, LPA

810 Sycamore St reet, Second Floor

Cincinnati, Ohio 45202 - 2179

For Respondent : Dylan T. Reingold Jr., Esquire

Jason R. Grabiel, Esquire

Office of General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202 - 5721

STATEMENT OF THE ISSUE

The issue is whether a text amendment to the general

description of the Commercial land use designations of the

Comprehensive Plan (Plan) of Responde nt, City of Jacksonville

(City), adopted by Ordinance No. 2010 - 401 - E on June 22, 2010, is

in compliance.

PRELIMINARY STATEMENT

To eliminate conflicting language in its Plan, the City

adopted Ordinance No. 20 10 - 401 - E, which deleted the following

language from the general description of the Commercial land use

designations : "Adult entertainment facilities are allowed by

right in the heavy industrial land use category, but no t in

commercial." The amendment was adopted under the Alternative

Review Process P ilot Program (Pilot Program), which is codified

in Section 163.32456, Florida Statutes (2010) .

On July 21, 2010, Petitioners, Clifton Curtis Horton and

Horton Enterprises, Inc., who own and operate an adult

entertainment facility on property with a Heavy Industrial land

use designation , filed their Petition for Formal Administrative

Hearing (Petition) with DOAH requesting that an administrative

law judge be assigned to conduct a formal hearing. The Petition

generally contended that the City failed to fol low the statutory

requirements for advertising the adoption of the amendment, that

the amendment is inconsistent with Goal 15 in the State

Comprehensive Plan , and that it is "inconsistent with the

balance of the [City's] 2030 Comprehensive Plan." By Notic e of

Hearing dated August 5, 2010, a final hearing was scheduled in

Jacksonville, Florida, on October 20 and 21, 2010.

On October 18, 2010, the parties filed a Pre - Hearing

Stipulation (Stipulation) . At the final hearing, Petitioners

presented the testimon y of R. Bruce McLaughlin, a certified land

use planner with Bruce McLaughlin Consulting Services , Inc., and

accepted as an expert. Also, they offered Exhibits A - Z and AA

through LL , which were received in evidence. Exhibits X, Y, and

Z are the deposition s of William B. Killingsworth, James F.

Bailey, Jr., and Folks M. Huxford, respectively , while Exhibits

KK and LL are affidavits of attorneys G. Randall Garrou,

Esquire, and Lawrence G. Walters, Esquire . The City presented

the testimony of James F. Bailey , Jr., president and publisher

of the Financial News and Daily Record ( Daily Record ), a local

newspaper in which notice of the adoption of the amendment was

published. A special appearance was made by Wayne R. Malaney,

Esquire, on behalf of witness Bailey . Also, the City offered

Exhibits A - Z and AA - MM , which were received in evidence.

The Transcript of the hearing was filed on November 8 ,

2010. By agreement of the parties, p roposed r ecommended o rders

were filed on December 22 , 2010, and they have been considered

in the preparation of this Recommended Order. 1

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A . The P arties

1. The City is a municipal entity and is responsible for

enacting and amending it s Plan. Since 200 7 , the City has

participated in the Pilot Program for adoption of comprehensive

plan amendments. Except for amendments based on the Evaluation

and Appraisal Report or amendments based on new statutory

requirements that specifically requi re that they be adopted

under the "traditional" pro cedure described in section 163.3184,

and small - scale amendments, all other amendments must be adopted

under that process. Under the Pilot Program , municipalities

have "reduced state oversight of local co mprehensive planning,"

and plan amendments may be enacted in "an alternative, expedited

plan amendment adoption and review process." § 163.32465, Fla.

Stat. Although the City must send a transmittal package to the

Department of Community Affairs (Departm ent) and other

designated agencies for their preliminary review, the Department

does not issue an Objections, Recommendations, and Comments

Report or a notice of intent. Instead, the Department "may

provide comments regarding the amendment or amendments t o the

local government." Id. It may also initiate an administrative

proceeding to challenge whether an amendment is in compliance.

Id. In this case, the Department did not file adverse comments

or initiate a challenge to the City's amendment.

2. Cli fton Curtis Horton owns real property located at

7175 Blanding Boulevard, Jacksonville, Florida. Horton

Enterprises, Inc. , is a Florida corporation that owns and

operates a "strip club" known as "New Solid Gold" located on

Mr. Horton's property. The clu b is an "adult entertainment

establishment" as defined by the Jacksonville Municipal Code

(JMC). See § § 150.103(c) and 656.1101, JMC.

B. History Preceding the Amendment

3 . In order to operate an adult entertainment facility

within the City, the faci lity must have both a correct land use

and zoning classification. The location must also satisfy

certain distance limitations from schools (2,500 feet), other

adult entertainment businesses (1,000 feet), churches (1,000

feet), residences (500 feet), and b usinesses selling alcohol

(500 feet). See § 656.110 3(a)(1) - (4) , JMC ; § 847.0134, Fla.

Stat . Prior to 2005, adult entertainment facilities were a n

authorized use in the Heavy Industrial (HI) land use category.

4. In 2005, the City adopted Ordinance No . 2005 - 1240 - E,

which approved a text amendment to the F uture Land Use Element

(F LUE ) of the City's 2010 Plan adding the following language to

the Community/General Commercial (C/GC) land use category:

"Adult entertainment facilities are allowed by right o nly in

Zoning District CCG - 2." See Respondent's Exhibit D. That

classification is the primary zoning district within the C/GC

land use category. The Ordinance also deleted the following

language from the HI land use category : "Adult entertainment

facil ities are allowed by right." Id. The purpose of the

amendment was to change the permissible land use designation for

adult entertainment facilities from HI to C / GC with a further

condition that the property must also have a CCG - 2 zoning

classification . At the same time, the City enacted Ordinance

No. 2005 - 743 - E , which adopted a new zoning requirement that any

adult entertainment facility whose location was not in

conformity with the revised land use/zoning scheme must close or

relocate within five years, or no later than November 10, 2010.

See § 656.725(k), JMC. Because New Solid Gold did not conform

to the se new requirements, it would have to close or relocate

within the five - year timeframe.

5 . On an undisclosed date, Horton Enterprises, Inc. , and

two other plaintiffs (one who operated another adult

entertainment facility in the City and one who wished to open a

new facility) filed suit in federal court challenging the

constitutionality of the City's adult zoning scheme and seeking

to enjoin the five - y ear amortization requirement , as applied to

them . See Jacksonville Property Rights Ass'n v. City of

Jacksonville , Case No. 3:05 - cv - 1267 - J - 34JRK (U.S. Dist. Ct.,

M .D. Fla.).

6 . On September 30, 2009, the United States District Court

entered a 33 - page Or der generally determining that, with one

exception not relevant here , the City's zoning and land use

scheme was permissible . See Petitioners ' Exhibit V. On

November 3, 2009, t hat Order was appealed by Petitioners to the

United States Court of Appeal s fo r the 11th Circuit where the

case remains pending at this time. The parties' Stipulation

indicates that oral argument before that Court was scheduled

during the week of December 13, 2010. An Order of the lower

court memorialized an agreement by the parti es that the five -

year time period for complying with the new requirements are

stayed until the federal litigation is concluded . See

Petitioners' Exhibit JJ.

7 . The Court 's Order also noted that an " ambiguity " in the

Plan arose because the City failed to " remove the language in

the general description of the Commercial land use designations

acknowledging its intention to locate adult entertainment

facilities in the HI category. " Id. at 19. This occurred

because when adopting the new amendments, the City overlooked

conflicting language in the general description of the

Commercial land use designation s in the FLUE. However, the

Court resolved the ambiguity in favor of the City on the theory

that the conflicting language was contrary to the City's overall

l egislative intent in adopting the new land use/zoning scheme

and could be disregarded . Id. Thereafter, a new amendment

process was begun by the City to delete the conflicting

language . This culminated in the present dispute.

C. The Transmittal Amendmen t - 2010 - 35 - E

8 . To eliminate the ambiguity, t he City proposed to amend

the FLUE by deleting the following language from the general

description of the Commercial land use designations: "Adult

entertainment facilities are allowed by right in the heavy

in dustrial land use category, but not in commercial." This

amendment was numbered as Ordinance No. 2010 - 35 - E. A p ublic

workshop was conducted by the City's Planning and Development

Department on December 14, 2009 . Thereafter, public hearings

were conducte d by the City Planning Commission on February 11,

2010 ; by the City Council Land Use and Zoning Committee on

February 17, 2010 ; and by the full City Council on February 9

and 23, 2010. It became effective upon the Mayor signing the

Ordinance on February 2 6, 2010 . Although the Ordinance

inadvertently referenced section 163.3184 as the statutory

authority for its adoption , it also stated that the amendment

was being transmitted for review "through the State's Pilot

Program. " See Petitioners' Exhibit E.

9 . As required by the Pilot Program, copies of the

amendment were then transmitted to the Department and seven

other agencies. No adverse comments were received from any

agency.

10. It is undisputed that Petitioner s did not attend the

the workshop or any hearing , and th ey did not submit written or

oral comments concerning the proposed amendment.

1 1 . When the process for adopting Ordinance No. 2010 - 35 - E

began, the City's 2030 Plan was still being reviewed by the

Department and had not yet become effective . Consequently , at

the Department's direction, the Ordinance referenced the City's

then - effective 2010 Plan as the Plan being amended . On

February 3, 2010, the City's 2030 Comprehensive Plan became

effective, replacing the 2010 Plan. However, t he 2030 Plan

contained the same conflicting language .

1 2 . Notice of the public hearings for Ordinance No. 2010 -

35 - E (and other plan amendments adopted at the same time) was

published in the Daily Record on January 29, 2010, a local

newspaper that the City has us ed for advertising plan amendments

since at least 2003. The parties agree that the legal

advertisements complied with the size, font, and appearance

requirements of s ection 166.041(3)(c)2. b.

1 3 . Besides the above notice, an additional notice

regarding Ordinance No. 2010 - 35 - E was published in the Florida

Times Union on January 31, 2010. The parties agree that this

advertisement did not meet the size, font, and appearance

requirements of s ection 166.041(3)(c)2. b. but was published by

the City for the pur pose of providing additional public notice

and to broaden the coverage of the plan amendment.

D . The Adoption Amendment - 2010 - 401 - E

1 4 . Because the 2030 Plan contained the same conflicting

language in the Commercial land use description s , on May 25,

201 0, a draft of Ordinance No. 2010 - 401 - E was introduced at City

Council for the purpose of deleting this language . Except for

referencing the latest Plan, the language in Ordinance Nos.

2010 - 35 - E and 2010 - 401 - E w as identical. While somewhat unusual,

t his p rocedure was authorized by the Department because the 2030

Plan became effective during the middle of the amendment

process . A copy of the draft Ordinance and schedule for the

upcoming hearings on that Ordinance w as emailed by the City's

counsel to Petiti oners' counsel on June 4, 2010. See

Petitioners' Exhibit FF .

1 5 . Public hearings on Ordinance No. 2010 - 401 - E were

conducted by the Planning Commission on June 10, 2010 ; by the

City Council Land Use and Zoning Committee on June 15, 2010 ; and

by the full City Council on June 8 and 22, 2010. All of the

meetings occurred after Petitioners' counsel was given a

schedule of the hearings . The amendment became effective upon

the Mayor signing the Ordinance on June 24, 2010.

1 6 . Notice of the public hearings f or Ordinance No. 2010 -

401 - E was published in the Daily Record on May 28, 2010. The

parties agree that the size, font, and appearance requirements

of s ection 166.041(3)(c)2. b. were met. An additional notice of

the public hearings was published in the Flor ida Times Union on

May 30, 2010. The parties agree that this legal advertisement

did not meet the size, font, and appearance requirements of

s ection 166.041(3)(c)2. b. , but was published by the City for the

purpose of providing additional public notice and to broaden the

coverage of the plan amendment.

1 7 . Ordinance No. 2010 - 401 - E, as originally proposed,

incorrectly referenced s ection 163.3184, rather than the Pilot

Program, as the statutory authority for adopting the amendment.

During the hearing conduc ted by the City Council Land Use and

Zoning Committee on June 15, 2010, an amendment to Ordinance No.

2010 - 401 - E was proposed changing the statutory authority to

s ection 163.32465 . The City proposed the same amendment for 19

other plan amendments being co nsidered at th e same hearing. The

amendment was minor in nature and had no effect on the substance

of the Ordinance.

1 8 . It is undisputed that Petitioners did not appear or

submit written or oral comments at a ny public hearing re garding

Ordinance No. 2 010 - 401 - E.

1 9 . On July 21, 2010, Petitioners timely filed their

Petition with DOAH challenging Ordinance No. 2010 - 401 - E. Their

objections , as later refined in the Stipulation, are both

procedural and substantive in nature and are discussed

separately below.

E . Petitioners' Objections

a. Substantive Objections

20 . As stated in the Stipulation, Petitioners contend that

the amendment is not in compliance because it "is inconsistent

with the balance of the 2030 Comprehensive Plan, and underlying

munic ipal policies, since it forces adult uses into zones which

permit residential and educational uses."

2 1 . To support this claim, Petitioners point out that the

C / GC land use category permits a wide range of uses, including

commercial uses in close proxim ity to sensitive uses, such as

schools, churches, and residential areas . Petitioners

characterize the current range of uses in C/GC as "an excellent

planning approach to downtown Jacksonville" and one that

promotes a well - reasoned, mixed - use development i n the urban

area. Because Ordinance No. 2010 - 401 - E " forces " adult uses into

the C / GC category where , despite the distance limitations, they

will have to co - exist with sensitive uses , Petitioners contend

the amendment is inconsistent with Policy (15)(b)3. and Goal

(16) of the State Comprehensive Plan, which generally encourag e

orderly, efficient , and functional development in the urban

area s of the City. Further, they assert it would contradict the

City's "policy" of separating adult uses from residences,

businesses, and schools. Petitioners ' primary fear is that if

they are required to relocate from HI to C/GC where sensitive

uses are allowed , this will generate more complaints from

schools, churches, and residents, and result in fu rther zoning

changes by the City and more forced relocations.

2 2 . As explained by Mr. Killingsworth, Director of the

City's Planning and Development Department, Ordinance No. 2010 -

401 - E does not change the permitted uses in the Commercial or HI

land use categor ies . Th ose cha nges in permitted uses w ere made

by Ordinance No. 2005 - 1240 - E in 2005 and are now being litigated

in federal court. The purpose of the new amendment is simply

"to clear up an inconsistency [noted by the federal court but

told that it could be disregarded ] that existed in the

comprehensive plan." Mr. Killingsworth added that even if the

language remained in the Plan, it would have no regulatory

weight since the actual language in the C/GC and HI categor ies,

and not the "header" or general description that precedes the

category, governs the uses allowed in those designations.

2 3 . Assuming arguendo that t he new amendment constitute s a

change in permitted uses, t he City established that from a use

standpoint, adult entertainment facilities (like businesses

se lling alcohol ) are more consistent with the C/GC land use

category with the appropriate distance limitations from schools,

churches, and residential areas. Further, the placement of

adult entertainment facilities on property with a C/GC

designation w ill n ot necessarily result in the ir being closer to

residential property, as the City currently has a "great deal"

of HI land directly adjacent to residential properties , as well

as grandfathered enclaves of residential areas within the HI

category . The City a lso established that the HI category is set

aside for uses that generate physical or environmental impacts ,

which are significantly different from the "impacts" of a strip

club . Finally, w hile a plan amendment compliance determination

does not turn on zon ing issues, it is noteworthy that the CCG - 2

zoning district is the City's most intensive commercial

district , and th at very few schools (all grandfathered) remain

within that zoning classification. The preponderance of the

evidence supports a finding that the amendment is consistent

with the State Comprehensive Plan and internally consistent with

the "balance of the 2030 Comprehensive Plan."

b. Procedural Objections

2 4 . Petitioners ' principal argument is that the City did

not publish a notice for either Ordinance in a newspaper of

general circulation , as described in section 166.041(3)(c)2.b.,

or in the proper location of th e newspaper; that th ese

deficiencies violate both state law and a Department rule

regarding notice for the adoption of this type of p lan

amendment; and that th ese procedural error s require a

determination that the amendment is not in compliance . They

also contend that because the legal notice did not strictly

comply with sections 163.3184(15)(e) and 166.041(3)(c)2. b., both

Ordinance s a re void ab initio . 2

2 5 . As noted above, the City has published legal notices

for plan amendments in the Daily Record since at least 2003.

The newspaper is published daily Monday through Friday ; it has

been publish ed continuously for 98 years; it is publi shed wholly

in English; it is mailed to 37 zip codes throughout the City and

around 20 zip codes outside the City; most of its revenue is

derived from classified and legal advertisements; it is

considered by the United States Postal Service to be a general

circulation newspaper; it is available in newsstands throughout

the City; and although much of the newspaper is directed to the

business, legal, and financial communit ies , the newspaper also

routinely contains articles and editorial content regarding

spec ial events , sporting news, political news, educational

programs, and other matters of general interest pertaining to

the City that would be of interest to the general public and not

just one professional or occupational group . Its publisher

acknowledges t hat the newspaper is a "Chapter 50 periodical,"

referring to chapter 50 and specifically section 50.031, which

describes the minimum standards for newspapers that can be

utilized for publishing certain legal notices. Also, its

website states that it cover s political, business, and legal

news and developments in the greater Jacksonville area with an

emphasis on downtown.

2 6 . Although Petitioners contend that the legal notice was

published in a portion of the Daily Record where other legal

notices and cla ssified advertisements appear, as proscribed by

section 166.041(3)(c)2. b. , and is thus defective, this

allegation was not raised in the Petition or specifically in the

parties' Stipulation. Therefore, the issue has been waived.

2 7 . Both p roposed r ecommen ded o rders are largely devoted

to the issue of whether the Daily Record is a newspaper of

general paid circulation as defined in s ection 166.041(3)(c)2. b.

For the reasons expressed in the Conclusions of Law, it is

unnecessary to decide that question in or der to resolve the

notice issue .

2 8 . Petitioners received written notice that the City

intended to adopt Ordinance No. 2010 - 401 - E prior to the public

hearings , along with a copy of the draft Ordinance and

"everything" in the City's file . They also rece ived a copy of

all scheduled hearings during the adoption process. See

Petitioners' Exhibit s EE and FF. Therefore, notwithstanding any

alleged deficiency in the published legal notice, they were on

notice that the City intended to adopt the plan amendmen t ; they

were aware of the dates on which public hearings would be

conducted ; and they had an opportunity to submit oral or written

comments in opposition to the amendment and to otherwise

participate in the adoption process. Given these facts, e ven

assumi ng arguendo that the publication of the legal notice in

the Daily Record constitute s a procedural error , there is no

evidence that Petitioners were substantially prejudiced in any

way .

2 9 . Petitioners also contend that reference by the City to

section 163.3184, rather than the Pilot Program, in the draft

ordinance during the preliminary stage s of the amendment process

is a procedural error that rises to the level of requiring a

determination that the amendment is not in compliance. This

argument is re jected as the error was minor in nature , it was

corrected shortly after Ordinance No. 2010 - 401 - E was introduced,

it did not affect the substance of the amendment , and it would

not confuse a member of the public who was tracking the

amendment as to the timi ng and forum in which to file a

challenge . In Petitioners' case, they cannot claim to be

confused since they timely filed a Petition with DOAH, as

required by section 163.32465 (6)(a) .

30 . Finally, i ntertwined with the procedural arguments is

the issue of whether Petitioners are affected persons and thus

have standing to challenge the plan amendment. The parties have

stipulated that Petitioners (or their representative) did not

attend any meeting regarding the adoption of either Ordinance.

Petitioners ar gue , however, that email s between the parties in

May and June 2010, and a telephone conference call on June 3,

2010, involving Petitioners' counsel and the City's then Deputy

General Counsel , equate to the submission of written and oral

c omments regarding the amendment.

3 1 . The parties have stipulated that the following written

communications between Petitioners and the City occurred in May

and June 2010:

(a) Petitioners made a public records request

regarding the amendment on May 21, 2010, to Cheryl

Br own, Council Secretary/Director, seeking various

public documents relating to Ordinance No. 2010 - 35 - E,

transmitted by electronic mail and facsimile.

(b) On May 27, 2010, counsel for Petitioners

exchanged emails with Assistant General Counsel Dylan

Reingo ld regarding pending document requests relating

to Ordinance No. 2010 - 35 - E, and Mr. Reingold provided

a number of responsive documents.

(c) On June 3, 2010, Cindy A. Laquidara, then Deputy

General Counsel (but now General Counsel), sent an

email to Petit ioners' counsel stating: "Below please

find the schedule for the passage of the comp plan

changes. Call me with questions or to discuss. Take

care."

(d) On June 4, 2010, counsel for Petitioners

exchanged a series of emails with Assistant General

Couns el Reingold regarding the status of Ordinance

Nos. 2010 - 35 - E and 2010 - 401 - E, as well as the review

of the proposed plan amendment by the Department of

Community Affairs.

(e) On June 4, 2010, Jessica Aponte, a legal

assistant with counsel for Petitioners' office,

exchanged emails with Jessica Stephens, legislative

assistant, regarding the proofs of publication for the

legal advertisements relating to Ordinance No. 2010 -

35 - E.

3 2 . The affidavits of Petitioners' counsel (Petitioners'

Exhibits KK and LL) r egarding a conversation with the City's

then Deputy General Counsel would normally be treated as hearsay

and c ould not, by themselves, be used as a basis for a finding

of fact. See § 120.57(1)(c), Fla. Stat. However, the parties

have stipulated that they may be used in lieu of live testimony

by Petitioners' counsel. See Stipulation, p. 17.

33. The affidavits indicate that the reason for the

conference call was "that [Petitioners] were trying to reach a

mutually acceptable approach with the City by which enforcement

of the City of Jacksonville's amortization ordinance against

[them] . . . would be deferred pending the outcome of the appeal

to the Eleventh Circuit." Petitioners' Exhibits KK and LL.

During that call, c ounsel also advised the City's counse l that

"there were [procedural] problems with the enactment of the

subject Comprehensive Plan Amendment and that they would likely

be filing challenges to its enactment." Id.

CONCLUSIONS OF LAW

3 4 . The Division of Administrative Hearings has

jurisdicti on over the subject matter and the parties hereto

pursuant to s ections 120.569, 120.57(1), and 163.3 2465(6) .

3 5 . The City contends that Petitioners lack standing to

initiate this action. Only affected persons, as defined by

s ection 163.3184(1)(a) , have standing to challenge a Pilot

Program amendment. See § 163.32456(6)(a), Fla. Stat. Affected

persons must own property or own and operate a business within

the City, and they must have " submitted oral or written

comments, objections, or recommendations to the local government

during the period of time beginning with the transmittal hearing

for the plan or plan amendment and ending with the adoption of

the plan or plan amendment." § 163.3184(1)(a), Fla. Stat.

3 6 . Petitioners own property and operate a b usiness within

the City. In addition, the record shows that during th e period

of time between the transmittal hearing and the adoption hearing

they submitted public record requests for documents relat ing to

the transmittal amendment; they requested inform ation regarding

the status of both the transmittal and adoption ordinances; they

were given a schedule of public hearings for Ordinance No. 2010 -

401 - E ; they requested copies of proof s of publication for the

transmittal amendment; and through counsel they o rally advised

the City's counsel that they would "likely be filing challenges

to [the] enactment [of the new amendment]" based upon procedural

errors. Collectively, these "comments , " especially the oral

ones, arguably constitute the type of comments neces sary to

support a conclusion that Petitioners are affected persons.

Compare Py le v. City of St. Pete Beach , Case No. 08 - 4772GM, 2009

Fla. ENV LEXIS 136 ( Fla. DOAH May 4, 2009), modified in part ,

Case No. DCA09 - GM - 255, 2009 Fla. ENV LEXIS 136 ( Fla. DCA Aug .

11, 2009) , aff'd , 31 So . 3d 180 (Fla. 1st DCA 2010) ( organization

established standing by (a) owning property in the City, (b)

sending an email (which was interpreted as being in support of

the amendment) to the City Clerk between the transmittal and

adop tion hearings, and (c) submitting into evidence an email

authored by the City Manager confirming that representatives of

the organization met with him during the same time period to

discuss the merits of the challenged plan amendment ) .

3 7 . In reaching t he above conclusion, the undersigned has

considered the City's argument that s ection 163.3184(1)(a)

contemplates that written or oral comments must be submitted at

the public hearings , and only to an appropriate City official.

Obviously, submitting such c omments (oral or written) at that

time allow s the City Planning Commission, City Council Land Use

and Zoning Committee, or full City Council to contemporaneously

consider and address , if appropriate, the objections being

raised by an affected person. Howe ver, the statute should not

be so narrowly construed, and when interpreted in a broad and

literal manner, it authorizes an affected person to submit oral

or written comments to the local government at any time between

the transmittal and adoption hearings. While the comments

cannot be submitted to any City employee, written and oral

comments submitted to the City's legal counsel are sufficient to

satisfy the requirement. These conclusions are supported in

part by language in section 163.3184(15)(c), which provides that

"[t]he local government shall add to the sign - in form [at the

transmittal and adoption hearings] the name and address of any

person who submits written comments concerning the proposed plan

or plan amendment during the time period between th e

commencement of the transmittal hearing and the end of the

adoption hearing."

3 8 . Section 163.3181 and rule 9J - 5.004 direct local

governments to adopt procedures to ensure that public

participation is consistent with the plain language in the

statute an d rule. 3 They are not, however, part of the

Department's statutory review to determine whether an amendment

is in compliance. See , e.g. , Emerald Lakes Residents' Assn.,

Inc. v. Collier Cty. , Case No. 02 - 3090GM, 2003 Fla. ENV LEXIS 58

at *32 - 33 (Fla. DO AH Feb. 10, 2003), modified in part , Case No.

DCA03 - GM - 103, 2003 Fla. ENV LEXIS 57 (Fla. DCA May 8, 2003).

Therefore, when a party asserts that a statutory notice

requirement has not been satisfied, it bears the burden of

showing prejudice occasioned by the procedural error. Because

Petitioners had actua l notice of the adoption hearings, which

allowed them to fully participate in the amendment process, it

is concluded that even if a procedural error occurred, they were

not prejudiced. In view of this, i t i s unnecessary to decide

whether the Daily Record is a newspaper of general paid

circulation, as defined by section 166.041(3)(c)2.b. 4

39 . Finally, section 163.32465(6)(d) provides that "[t]he

local government's determination that the amendment is 'in

co mpliance' is presumed to be correct and shall be sustained

unless it is shown by a preponderance of the evidence that the

amendment is not 'in compliance' . " This language is identical

to the language used in small - scale amendment cases. See

§ 163.3 187(3)(a), Fla. Stat. Therefore, challenges to

compliance are evaluated under the preponderance of the evidence

standard rather than the fairly - debatable standard. For the

reasons given the in Findings of Fact, the preponderance of the

evidence supports a conclusion that the plan amendment is in

compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter

a final order determining that the plan amendment adopte d by

Ordinance No. 2010 - 401 - E is in compliance.

DONE AND ENTERED this 11th day of January, 2011, in

Tallahassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeS oto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of January, 2011.

ENDNOTES

1/ Although t h e City's 50 - page post - hearing submission exceeds

the 40 - page limitation allowed under Florida Administrative Code

R ule 28 - 106.215 , it has been considered.

2/ The only issue in this case is whether the plan amendment is

in compliance, as defined in sectio n 163.3184(1)(b). Even if the

doctrine of void ab initio applied in this case, this tribunal

lacks authority to declare the Ordinances void. This

determination would have to be made by a court of competent

jurisdiction. Moreover, all of the cases cited by Petitioners in

support of this proposition involve zoning or impact fee

ordinances, and not plan amendments, and were litigated in

circuit court.

3 / Pursuant to that statute and rule, the City has enacted the

required public participation procedures. See § 650.205, JMC.

4 / Section 166.041(3)(a) requires that legal advertisements for

so - called r outine ordinances be published "in a newspaper of

general circulation in a municipality." For ordinances that

change "the actual list of permitted, condition al, or prohibited

uses within a zoning category," legal advertisements must be

"placed in a newspaper of general paid circulation in the

municipality, and not one of limited subject matter, pursuant

to chapter 50." § 166.041(3)(c), Fla. Stat. Although this case

does not involve a challenge to a zoning ordinance, section

163.3184(15)(e) provides that the required advertisements for a

plan amendment that " changes the actual list of permitted uses

within the future land use category . . . shall be in the f ormat

prescribed by . . . s. 166.041(3)(c)2.b. for a municipality . "

Because the plan amendment being challenged does not fall within

this category, the so - called "heightened" notice requirements in

section 163.3184(15)(e) do not apply. See Finding of Fac t 22,

supra .

COPIES FURNISHED:

William A. Buzzett, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

J ames L. Richmond , Acting General Counsel

Department of Community Affairs

2555 Shumard Oak Bouleva rd

Tallahassee, Florida 32399 - 2100

Lawrence G. Walters , Esquire

The Walters Group

781 Douglas Avenue

Altamonte Springs, Florida 32714 - 2566

Jennifer W. Kinsley, Esquire

Sirkin, Kinsley & Nazzarine, LPA

810 Sycamore Street, Second Floor

Cincinnati, Ohio 45202 - 2179

Dylan T. Reingold, Esquire

Assistant General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202 - 5721

Wayne R. Malaney, Esquire

Wayne R. Malaney, P.A.

Post Office Box 12514

Tallahassee, Florida 32317 - 2514

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.