95-000437DRI Edgewater Beach Owners Association, Inc. vs. Walton County Board Of County Commissioners And Florida Land And Water Adjudicatory Commission Status: Closed Recommended Order on Wednesday, July 26, 1995.

Summary: Local government has authority to extend the termination date of an expired development order.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDGEWATER BEACH OWNERS )

ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-0437DRI

)

BOARD OF COUNTY COMMISSIONERS )

OF WALTON COUNTY and KPM, )

LTD., )

)

Respondents, )

and )

)

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Intervenor. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of

Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on

April 13 and May 26, 1995, in DeFuniak Springs, Florida.

APPEARANCES

For Petitioner: Richard H. Powell, Esquire

Post Office Drawer 2167

Fort Walton Beach, Florida 32549-2167

Steven K. Hall, Esquire

1234 Airport Road, Suite 106

Destin, Florida 32541

David A. Theriaque, Esquire

909 East Park Avenue

Tallahassee, Florida 32301-2600

For Respondent: George Ralph Miller, Esquire

(County) Post Office Box 687

DeFuniak Springs, Florida 32433-0687

For Respondent: Martha Harrell Chumbler, Esquire

(KPM) Nancy G. Linnan, Esquire

Post Office Drawer 190

Tallahassee, Florida 32302-0190

For Intervenor: David L. Jordon, Esquire

Kenneth D. Goldberg, Esquire

2740 Centerview Drive

Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

The issue in this case is whether Walton County had authority to adopt

resolution 93-2, which extends the termination date of the Edgewater Beach

Condominium development order.

PRELIMINARY STATEMENT

This matter began on January 27, 1993, when petitioner, Edgewater Beach

Owners Association, Inc., filed a petition under Section 380.07(2), Florida

Statutes, with the Florida Land and Water Adjudicatory Commission (FLWAC)

challenging the adoption of resolution 93-2 by respondent, Walton County. The

resolution constitutes an amended development order reviving an expired

development of regional impact order. An amended petition was thereafter filed

by petitioner on April 1, 1993. On April 13, 1993, FLWAC dismissed the amended

petition for lack of standing.

After petitioner appealed the order of dismissal, the order was reversed

and remanded by the court in the case of Edgewater Beach Owners Association,

Inc. v. Board of County Commissioners of Walton County, Florida et al, 645 So.2d

541 (Fla. 1st DCA 1994). In its opinion, the court concluded that the amended

petition contained sufficient factual allegations to show that petitioner was

"an owner of . . . affected property" within the meaning of the law, and thus it

had standing to being this action. In accord with the court's mandate, on

January 31, 1995, FLWAC forwarded this matter to the Division of Administrative

Hearings with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated February 15, 1995, a final hearing was scheduled

on April 13, 1995, in DeFuniak Springs, Florida. A continued hearing was held

at the same location on May 26, 1995. Prior to the first hearing, intervenor,

Department of Community Affairs, filed a petition to intervene which was granted

by order dated March 21, 1995.

At final hearing, petitioner presented the testimony of James J. Mallett, a

professional engineer and accepted as an expert in stormwater design, stormwater

utilities, and retention pond designs; Shirl Williams, a Walton County assistant

administrative supervisor; Albert E. Paris, a real estate developer; and David

J. Russ, an attorney and accepted as an expert in urban and regional planning.

Also, it offered petitioner's exhibits 1-18, 20, 22-26 and 31-33. All exhibits

were received in evidence. Respondent, KPM, Ltd., who is the owner of the

subject property, presented the testimony of John Lewis, a professional engineer

and accepted as an expert in the design of stormwater systems. Also, it offered

KPM's exhibit 1 which was received in evidence. Intervenor presented the

testimony of J. Thomas Beck, its chief of the bureau of local planning and

accepted as an expert in regional planning. Also, it offered intervenor's

exhibits 1-6. All exhibits were received in evidence. Finally, the parties

stipulated into evidence joint exhibits 1-8, and the undersigned took official

recognition of ten items.

The transcript of hearing (two volumes) was filed on June 7, 1995.

Proposed findings of fact and conclusions of law were filed by the parties on

June 26, 1995. A ruling on each proposed finding has been made in the Appendix

attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are

determined:

1. In 1981, Edgewater Development Associates, Ltd. applied for a

development order for the Edgewater Beach Condominium project (the project), a

development of regional impact (DRI) for a 15.4 acre parcel of property

located in Walton County between County Road 2378 and the Gulf of Mexico. On

June 8, 1982, respondent, Walton County (County), issued resolution 82-12 (the

original development order) authorizing the development of the project.

2. Although not then required by law to do so, but consistent with its

policy for all DRI orders, the County included within Section 6 of the original

development order the following provision regarding an expiration date:

The development order shall remain in effect

for a period of ten years or until the development

is complete and all certificates of occupancy are

issued by Walton County, whichever occurs first,

provided that upon application by the developer,

the county may extend the duration of the

development order.

Therefore, without an extension, the original development order was scheduled to

expire on June 8, 1992.

3. The project was originally authorized to include six phases with 476

condominium units and associated recreational facilities. When completed, the

476 units were to be located within a horseshoe-shaped building, with an east

and west wing connected at the top of the horseshoe by a lobby area. Phases I

and II, consisting of 175 units, were completed by 1984 but phases III through

VI have never been constructed. Petitioner, Edgewater Beach Condominium

Association, Inc. (EBOA or petitioner), is a Florida condominium association and

the owner of phases I and II.

4. On June 8, 1987, Edgewater Development Associates, Ltd. lost by

foreclosure the approximately seven acres upon which the remaining four phases

of the project were to be constructed. On July 10, 1987, EAB Realty of Florida,

Inc. acquired title to that property. However, it never developed any of the

remaining four phases. In May 1992, title to the property was transferred to

respondent, KPM, Ltd. (KPM), and one of the KPM partners, Kero Investments, Inc.

(Kero). KPM now owns the entire parcel.

5. In early May 1992, or approximately a month before the original

development order was to expire, representatives of KPM asked the County's

assistant administrator with responsibility for planning and zoning about

extending that order. They were told that they merely had to ask the Commission

for such an extension.

6. Relying on these instructions, KPM appeared before the County

Commission on May 26, 1992, requesting that the termination date of the original

development order be extended for thirty-five months. The Commission granted

the request and voted to allow the extension. Shortly thereafter, however, KPM

and the County were informed by intervenor, Department of Community Affairs

(DCA), that the action by the County on May 26, 1992, was ineffective because it

failed to comply with all of the requirements of Section 380.06, Florida

Statutes. KPM was told that in order to extend a DRI development order

termination date, it must file a formal notice of proposed change with the

County, and the County would then give public notice of the hearing at which the

change was to be considered. Until these procedures were followed, no further

development could occur once the expiration date had passed.

7. On June 5, 1992, KPM filed with the County a formal notice of proposed

change requesting that the build-out date and expiration date of the original

development order be extended to May 8, 1995.

8. Thereafter, the DCA informed the County and KPM that, after June 8,

1992, the right to develop the property covered by the original development

order had expired. It also advised them that further development of the

property would have to be preceded by further DRI review, namely, either a

notice of proposed change or formal abandonment. Petitioner received the same

information when it inquired about the possibility of constructing an addition

to phases I and II. In light of this advice, on July 17, 1992, KPM's counsel

withdrew its application for extension and stated that he understood that the

withdrawal caused the original development order to expire as of June 8, 1992.

9. KPM then selected the notice of proposed change option because it felt

that the DRI development order had value and that the abandonment procedure was

basically the same as that required for a notice of proposed change. Had not

KPM received this advice from DCA, it could have built up to 35 units per acre

on the property, without any height restriction, under the local comprehensive

plan then in effect.

10. On September 28, 1992, KPM submitted another notice of proposed change

in which it requested that the build-out dates and the termination date for

phases III through VI be extended until January 1, 1999. On December 7, 1992,

KPM revised its notice of proposed change to request certain changes in the

project's configuration, including replacing the condominiums in phase III with

townhouses and reducing the number of units in that phase from 42 to 19.

11. The County treated the notice of proposed change as a presumptive

substantial deviation to the original development order under Section

380.06(19)(e)3., Florida Statutes. In other words, the proposed changes were

presumed by statute to create additional regional or state impacts so as to

require further DRI review. However, that presumption could be rebutted by

evidence submitted at a public hearing before the local government.

12. Kero was the record owner of the portion of the property covered by

the September 1992 notice of proposed change. This included a beachfront parcel

of approximately 50 feet by 400 feet on the eastern boundary of the undeveloped

portion of the DRI and a parking lot. Kero was fully aware of the requested

changes and authorized Albert Paris, the owner of one of the other KPM partners,

to file the application.

13. On January 26, 1993, the County adopted the amended development order

in issue here (resolution 93-2), which approved the extension of build-out and

termination dates and the change in phase III configuration requested by KPM.

In doing so, the County determined that, based on certain conditions placed in

the amended development order, the amendment to the original development order

was not a substantial deviation and thus it required no further DRI review. The

DCA concurred in this determination. The amended development order requires,

however, that before construction of phases IV through VI may commence, KPM must

submit additional information to the County for approval and for another

amendment to the DRI development order pursuant to Section 380.06(19), Florida

Statutes.

14. Contending that the amended development order was invalid, petitioner

filed an amended petition on April 1, 1993. As clarified by the parties in the

prehearing stipulation, petitioner cites three broad grounds for invalidating

that order: (a) the original development order was constructively abandoned and

therefore could not be amended, (b) the right to request an amendment of the

original development order did not transfer to KPM, a successor owner to the

original developer, and (c) the County did not have authority to revive the

original development order and extend its termination date. In its proposed

recommended order, however, petitioner addresses only the third issue, that is,

whether the County had authority to revive an expired development order. By

failing to address the remaining claims, the undersigned assumes that petitioner

has abandoned these contentions. Nonetheless, and for the sake of providing a

complete factual and legal record in the event of an appeal, the undersigned

will discuss the other two issues.

B. Standing

15. In its amended petition, as clarified by the court's opinion in

Edgewater Beach Owners Association, Inc. v. Board of County Commissioners of

Walton County, Florida, 645 So.2d 541 (Fla. 1st DCA 1994), petitioner contends

it has standing as an affected land owner to challenge the amended development

order because its retention pond would be affected by the development. In other

words, petitioner alleges that "the 'intensity' of the use of the retention pond

would increase beyond its current use under KPM's plan."

16. Under the original stormwater plans for the project, a 10,000 square

foot wet retention pond designed to capture stormwater runoff was constructed

that straddles what is now the boundary between petitioner's and KPM's property.

Approximately 3,000 square feet of the pond are located on KPM property. The

pond was intended to serve all six phases of the project.

17. Assuming KPM develops its property, and the surface stormwater from

that development is released into the wet retention pond, the pond will be

impacted. However, KPM intends to utilize a stormwater design for phase III

that provides for the retention of 100 percent of its stormwater on its own

property. A retaining wall built along the edge of the pond would prevent any

surface water runoff from KPM's development from entering the pond. Since

surface water now flows into the pond from KPM's property in its undeveloped

state, the retaining wall plan will not increase, and will probably decrease,

the volume of water currently entering the pond.

18. Notwithstanding this reduction in surface water runoff, petitioner

contends that the development proposed on KPM property will influence the ground

water flow into the retention pond. More specifically, it argues that in light

of the geophysical characteristics of the property, some of the water which

percolates from KPM's retention ponds will flow underground and impact the

function of petitioner's retention pond.

19. There will, of course, be a lateral exchange of water between KPM's

and petitioner's property. In other words, in the same way that petitioner

would be affected by KPM, KPM would also be affected by petitioner. This

exchange of water is uncontrollable and also occurs between petitioner's

property and all other adjacent properties. However, there is no evidence of

record as to whether KPM's development would have any discernable effect on the

water table. That is to say, there is no evidence to support a finding that,

beyond the lateral exchange of water that now occurs, the proposed development

would have a measurable impact on the water table. Even petitioner's own expert

conceded as much. Given these considerations, it is found that the intensity of

the use of petitioner's retention pond will not increase beyond its current use

under KPM's plan. Therefore, petitioner is not an affected land owner and thus

it lacks standing to bring this action.

C. Was the Original Development Order Constructively Abandoned?

20. In the prehearing stipulation, petitioner argues that the original

developer constructively abandoned the original development order. According to

petitioner, this occurred either through foreclosure of the original developer's

interests or through actions or omissions by KPM.

21. The DCA does not recognize constructive abandonment as a concept

applicable to DRI development orders. Indeed, the only mechanism for abandoning

a DRI development order is the procedure set forth in Rule 9J-2.0251, Florida

Adminstrative Code. KPM made no attempt to initiate the abandonment procedures

specified in the rule.

22. There is insufficient evidence to establish that KPM evinced an intent

to abandon development of its property. Rather, the evidence establishes that

KPM considered the original development order to be valuable and took

affirmative steps to assure its viability. While it is true that the prior

owner of the property did go bankrupt, even petitioner's expert recognized that

bankruptcy alone could not be deemed to constitute an abandonment of a DRI

development order.

23. As to the contention that KPM had no right to seek the changes

approved by the County since it was not the original developer of the project,

the evidence establishes that almost all DRIs in Florida have been sold

subsequent to the issuance of their original DRI development orders. The DCA

regards a DRI development order as incidental to the land itself, with the

rights and obligations of the development order transferring to subsequent

purchasers when title is transferred. In other words, a DRI development order

runs with the land. Therefore, as the successor in title to the land, KPM had

the right to seek changes approved by the County.

D. Can An Expired Development Order be Revived?

24. Petitioner further contends that a local government has no authority

to revive a DRI development order after it has expired. In this case, the

County issued an amended development order on January 26, 1993, or almost six

months after the original development order had expired.

25. The build-out date in a development order is the date by which the

developer is to have completed the vertical structures. This date is important

for assessing impacts such as public capacity (e. g., water, sewer and

transporation). If a build-out date is missed, there may no longer be adequate

public capacity to accommodate the proposed development.

26. A termination date is the date at which the development order expires.

Until 1985, there was no requirement in chapter 380 that a DRI development order

include an expiration date. The expiration date is typically set at two to five

years after the build-out date. This date provides a local government with the

specific point in time at which it can determine whether the proposed

development is still compatible with the community.

27. The local government must determine whether an extension of the

development order would create additional regional or state impacts, and if not,

whether the extension should be granted. If the proposed change creates

additional regional impacts, it constitutes a substantial deviation which must

undergo additional DRI review. Even if the local government determines that the

extension of a development order, after expiration, will not create additional

regional or state impacts, the local government has the authority to deny such

an extension.

28. On the other hand, the DCA has only one decision with respect to

termination date extensions - - whether such an extension will create additional

regional or state impacts. Consequently, the DCA regards the extension of a

termination date as largely a local decision.

29. Since at least 1987, or well before the expiration of the original

development order, the DCA has advised local governments and DRI developers that

expired DRI development orders could be revived by the local government based on

local considerations, such as whether the development is still compatible with

the surrounding community. This interpretation of the statute was not shown to

be clearly erroneous or unreasonable.

30. Petitioner's expert disagreed with the above interpretation since he

opined that permitting a local government to revive an expired development order

would defeat efforts to plan for the future and hamper the ability of adjacent

local governments to implement their plans of development. While this view may

have some justification from a planning perspective, the DCA's interpretation of

the DRI statutes is also reasonable.

31. The amended development order in issue approved both an extension of

the termination date and an extension of build-out dates. The DCA determined

that the changes actually approved would not create additional regional or state

impacts. Petitioner has not challenged this determination.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties hereto pursuant to Sections 120.57(1) and 380.07,

Florida Statues.

33. As the party challenging the amended development order, petitioner

bears "both the ultimate burden of persuasion and the burden of going forward."

Young v. Department of Community Affairs, 625 So.2d 831, 835 (Fla. 1993).

34. In order to have standing to challenge a development order under

Section 380.07(2), Florida Statutes, petitioner must be "the owner, the

developer, or the state land planning agency." In this case, petitioner has

alleged that it is "the owner" of affected property, that is, it owns a

retention pond that will be impacted by KPM's development. Or, as stated by the

court in Edgewater Beach Owners Association, Inc. v. Board of County

Commissioners of Walton County, Florida et al, 645 So.2d 541, 543 (Fla. 1st DCA

1994), in order to prove up its allegations of standing at hearing, petitioner

must show that "the 'intensity' of the use of the retention pond would increase

beyond its current use under KPM's plan."

35. The greater weight of evidence shows that petitioner failed to prove

that, under KPM's plan, the intensity of the use of the retention pond will

increase beyond its current use. Indeed, the evidence shows that such surface

water runoff will likely decrease by virtue of a new stormwater design to be

used by KPM. At the same time, there is no evidence that water percolating from

KPM's retention ponds will flow underground and impact petitioner's water table

in any discernable way. This being so, it is concluded that petitioner fails to

qualify as an affected property owner, and thus it lacks standing to bring this

appeal. Notwithstanding this conclusion, however, the undersigned will address

the other issues raised by petitioner in the event an appeal is taken by any

party.

36. Petitioner first argues that the original development order has been

constructively abandoned, either through foreclosure of the original developer's

interests or through actions or omissions by KPM. As previously stated in

finding of fact 21, Rule 9J-5.0251, Florida Administrative Code, establishes the

only mechanism by which a developer can abandon a DRI. This rule is derived

from Section 380.06(26), Florida Statutes, which requires the DCA to adopt rules

to "establish the process for local governments to follow in the event a

developer proposes to abandon its (DRI)." Significantly, the statute does not

reference any alternative mechanism for abandoning a DRI development order, and

the DCA interprets the statute to mean that such an order can only be abandoned

through the formal procedures promulgated by the agency. This interpretation of

the law has not been shown to be clearly erroneous or unreasonable, and the same

has accordingly been accepted.

37. Petitioner further alleges that KPM abandoned the DRI through its

actions or omissions. For the reasons set forth in finding of fact 22, this

argument is deemed to be without merit.

38. Finally, petitioner contends that the County lacked authority to

revive and extend an expired development order. More specifically, petitioner

argues in its proposed recommended order that the authority to revive such an

order is inconsistent with the requirement in Section 380.06(15)(c)2., Florida

Statutes, that development orders include a termination date. There are no

reported appellate decisions or final administrative orders which address this

issue.

39. Section 380.06(15)(c)2., Florida Statutes, provides that the

development order "shall include a termination date that reasonably reflects the

time required to complete the development." The statute is silent on whether a

local government has authority to extend that termination date. For the

following reasons, the undersigned concludes that the County had authority to

adopt resolution 93-2.

40. To begin with, Section 380.06, Florida Statutes, was not intended to

limit a local government's authority to make decisions regarding development

within its jurisdiction. Rather, the DRI statute establishes additional

procedures, over and above those already imposed by state and local regulations,

for the review of any development having regional impact. Indeed, case law

confirms this proposition. See, e. g., Friends of the Everglades v. Board of

County Commissioners of Monroe County, 456 So.2d 904, 908 (Fla. 1st DCA 1984).

41. In addition, under the provisions of Section 125.01(1)(w), Florida

Statutes, a county is granted authority to

(p)erform any other acts (in addition to those

specifically enumerated) not inconsistent with

law, which acts are in the common interest of

the people of the county, and exercise all powers

and privileges not specifically prohibited by law.

Section 125.01(3)(b), Florida Statutes, further emphasizes the breadth of county

authority. That paragraph reads as follows:

The provisions of this section shall be liberally

construed in order to effectively carry out the

purpose of this section and to secure for the

counties the broad exercise of home rule powers

authorized by the State Constitution.

Thus, a non-charter county, such as Walton County, has broad power to act

through its home rule powers, unless the legislature has adopted either a

special or general law that is clearly inconsistent with a county's exercise of

such power. Because the County already has such authority by virtue of section

125.01, it is unnecessary for section 380.06 to include an express grant of

authority to local governments allowing the revival of expired development

orders, whether or not the order relates to a DRI or to a non-DRI development.

42. Further, there is no express prohibition or preemption in Section

380.06, Florida Statutes, that suggests a legislative intent to bar a local

government from reviving expired development orders. In fact, Section

380.06(19), Florida Statutes, contemplates that a local government may make

amendments to DRI development orders in addition to those expressly delineated.

For example, subparagraph (19)(e)3. of that statute provides that:

any change not specified in paragraph (b) or

paragraph (c) shall be presumed to create a

substantial deviation. This presumption may

be rebutted by clear and convincing evidence.

As reflected in finding of fact 11, the County considered KPM's request for

revival of the original development order as a presumptive substantial deviation

under the foregoing statute. After the inclusion of certain conditions in the

amended development order, however, it concluded that the change was not a

substantial deviation.

43. In light of the broad authority given to counties under section

125.01, and the obvious recognition of the legislature that local governments

can make changes to a DRI development order in addition to those expressly

enumerated in the DRI statute, it is concluded that the absence of an express

statement in section 380.06 authorizing the revival of an expired DRI

development order cannot be construed to prohibit such action by the County.

44. This conclusion is consistent with the DCA's long-standing

interpretation of the law that a development order continues to exist in some

form even after the passing of the expiration date, and a decision to revive and

extend the effective date, or not, is reposed in the local government based on

local considerations. This interpretation of chapter 380 was not shown to be

clearly erroneous or unreasonable and has been accepted by the undersigned.

45. Finally, it is unnecessary to reach the issue of whether KPM must

undergo further DRI review and comply with all County regulations in effect as

of January 26, 1993. This is because the issue was not previously raised before

FLWAC, and a resolution of that question is not necessary to decide this case.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Florida Land and Water Adjudicatory Commission issue a

final order dismissing the amended petition of Edgewater Beach Owners

Association, Inc.

DONE AND ENTERED this 26th day of July, 1995, in Tallahassee, Florida.

___________________________________

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of July, 1995.

APPENDIX TO RECOMMENDED ORDER

Petitioner:

1. Partially accepted in finding of fact 13.

2. Partially accepted in finding of fact 1.

3. Partially accepted in finding of fact 3.

4. Covered in the preliminary statement.

5-6. Partially accepted in finding of fact 1.

7-8. Partially accepted in finding of fact 3.

9-11. Partially accepted in finding of fact 2.

12. Rejected as being unnecessary.

13-14. Partially accepted in finding of fact 3.

15-18. Partially accepted in finding of fact 4.

19. Rejected as being unnecessary.

20-21. Partially accepted in finding of fact 6.

22. Partially accepted in finding of fact 7.

23. Partially accepted in finding of fact 8.

24-25. Partially accepted in finding of fact 10.

26. Partially accepted in finding of fact 13.

27. Rejected as being unnecessary.

28. Partially accepted in finding of fact 12.

29. Rejected as being unnecessary.

30-41. Partially accepted in findings of fact 15-19.

42-45. Rejected as being unnecessary.

46-61. Partially accepted in findings of fact 24-31.

Respondents:

1. Partially accepted in findings of fact 1 and 3.

2. Partially accepted in finding of fact 3.

3. Partially accepted in finding of fact 4.

4. Partially accepted in finding of fact 3.

5. Partially accepted in finding of fact 4.

5. Partially accepted in finding of fact 5.

6-7. Partially accepted in finding of fact 6.

8. Partially accepted in finding of fact 7.

9-10. Partially accepted in finding of fact 8.

11. Partially accepted in finding of fact 9.

12. Partially accepted in finding of fact 10.

13. Partially accepted in finding of fact 12.

14. Partially accepted in finding of fact 13.

15. Partially accepted in finding of fact 14.

16-24. Partially accepted in findings of fact 15-19.

25-28. Partially accepted in findings of fact 20-22.

29-32. Partially accepted in finding of fact 23.

33-42. Partially accepted in findings of fact 24-31.

Intervenor:

1. Rejected as being unnecessary.

2. Partially accepted in findings of fact 1 and 3.

3-4. Partially accepted in finding of fact 3.

5. Partially accepted in finding of fact 4.

6. Covered in preliminary statement.

7-8. Partially accepted in finding of fact 2.

9-11. Partially accepted in finding of fact 6.

12. Partially accepted in finding of fact 7.

13. Partially accepted in finding of fact 11.

14. Partially accepted in finding of fact 25.

15. Partially accepted in finding of fact 26.

16. Partially accepted in finding of fact 11.

17. Partially accepted in finding of fact 8.

18-19. Partially accepted in finding of fact 10.

20. Partially accepted in finding of fact 13.

21. Partially accepted in finding of fact 29.

Where a proposed finding has been partially accepted, the remainder has been

rejected as being unnecessary for a resolution of the issues, cumulative,

irrelevant to a resolution of the issues, not supported by the evidence, or a

conclusion of law.

COPIES FURNISHED:

Robert B. Bradley, Secretary

Florida Land and Water

Adjudicatory Commission

Executive Office of the Governor

1601 The Capitol

Tallahassee, Florida 32399-0001

Richard H. Powell, Esquire

P. O. Drawer 2167

Fort Walton Beach, Florida 32549-2167

Steven K. Hall, Esquire

1234 Airport Road, Suite 106

Destin, Florida 32541

David A. Theriaque, Esquire

909 East Park Avenue

Tallahassee, Florida 32301-2600

George Ralph Miller, Esquire

P. O. Box 687

DeFuniak Springs, Florida 32433-0687

Martha Harrell Chumbler, Esquire

Nancy G. Linnan, Esquire

P. O. Drawer 190

Tallahassee, Florida 32302-0190

David L. Jordon, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this

Recommended Order. All agencies allow each party at least ten days in which to

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

submit written exceptions. You should contact the agency that will issue the

Final Order in this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the Final Order in this case.

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

DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

EDGEWATER BEACH OWNERS NOT FINAL UNTIL TIME EXPIRES TO

ASSOCIATION, INC., FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellant,

CASE NO. 95-4110

vs. DOAH CASE NO. 95-437DRI

BOARD OF COUNTY COMMISSIONERS

OF WALTON COUNTY, FLORIDA,

and KPM LTD., and DEPARTMENT

OF COMMUNITY AFFAIRS,

Appellee.

______________________________/

Opinion filed January 22, 1997.

An appeal from an order of the Florida Land & Water Adjudicatory Commission.

Richard H. Powell of Powell & Strom, P.A., Fort Walton Beach and David A.

Theriaque, Tallahassee, for Appellant.

Martha Harrell Chumbler and Nancy G. Linnan, of Carlton, Fields, Ward, Emmanuel,

Smith & Cutler, Tallahassee, for appellee KPM, Ltd.; George Ralph Miller,

DeFuniak Springs, for appellee Board of County Commissioners of Walton County;

and Stephanie M. Gehres, General Counsel, and David L. Jordan, Deputy General

Counsel, Tallahassee for appellee Department of Community Affairs.

BARFIELD, C. J.

The Florida Land and Water Adjudicatory Commission (FLWAC) did not err in

ruling, on remand from this court, 1/ that Edgewater Beach Owners Association,

Inc. did not have standing to appeal a 1993 resolution of the Board of County

Commissioners of Walton County which amended a 1982 development of regional

impact (DRI) development order to extend the expiration date and build-out dates

of the Edgewater Beach Condominium project and approve design changes requested

by the subsequent developer, KPM Ltd. This determination moots all other issues

raised on appeal. The FLWAC order is AFFIRMED.

ERVIN, J. CONCURS; BENTON, J. SPECIALLY CONCURS WITH WRITTEN OPINION.

BENTON, J., concurring specially.

I concur fully in the judgment of the court and in the majority opinion,

and accept appellees' contention that the decision in Londono v. City of

Alachua, 438 So.2d 91 (Fla. 1st DCA 1983) answers appellant's argument that,

simply because the Edgewater Beach Owners Association (Association) "administers

a portion of the property on which the DRI development order is located, it must

be considered an owner and granted section 380.07(2) standing in this case." Nor

does the result we reach today represent a repudiation of the doctrine of the

law of the case.

The last time the Association appealed an order of the Florida Land and

Water Adjudicatory Commission (FLWAC) dismissing the Association's

administrative appeal for lack of standing, we reversed, saying:

In conclusion, we find that appellant

Edgewater [Beach Owners Association] is an

"owner" under the terms of Section 380.07(2),

and therefore has standing to appeal the

amended development order rendered by the

Board of County Commissioners.

Edgewater Beach Owners Ass'n, Inc. v. Board of County Comm'rs of Walton County,

645 So.2d 541, 543 (Fla. 1st DCA 1994). The appeal we now decide concerns the

same administrative appeal to FLWAC from the same amended development order that

the Board of County Commissioners of Walton County entered in 1993.

Fortunately for litigants and appeals courts alike, most litigation does

not involve even a single appeal. Whatever else it may accomplish, an appeal

consumes additional resources. Reflecting this reality, an important rule of

decision has been devised for litigation that bubbles up repeatedly into the

appellate courts: Once actually decided by the highest court to which the case

goes, the law of the case cannot be revisited, with rare exceptions not

applicable here.

"Law of the case" refers to the principle

that the questions of law decided on an appeal

to a court of ultimate resort must govern the

case in the same court and the trial court

through all subsequent stages of the

proceeding. Or, as otherwise stated, whatever

is once established between the same parties

in the same case continues to be the law of

the case, whether correct on general

principles or not, so long as the facts on

which such decision was predicated continue to

be the facts in the case.

3 Fla. Jur. 2d Appellate Review s 414 (1978). But the "doctrine of the law of

the case applies only to issues actually or impliedly presented and decided on

appeal, and not to mere dicta, or to issues not considered. See 3 Fla. Jur. 2d

Appellate Review s 421 (1978)." Golden v. State, 528 So.2d 50, 51 (Fla. 1st DCA

1988); Myers v. Atlantic Coast Line Ry. Co., 112 So.2d 263 (Fla. 1959); State v.

Florida State Improvement Comm'n, 60 So.2d 747 (Fla. 1952); Crabtree v. Aetna

Cas. and Sur. Co., 438 So.2d 102 (Fla. 1st DCA 1983). See Hart v. Stribling, 25

Fla. 435, 6 So. 455, 459 (1889).

When the present case was first before the Court, we "h[e]ld that the

petition is sufficient under the statute to [allege].. appellant's standing as

an affected land owner." [Edgewater], 645 So.2d at 543 [emphasis supplied]. Our

holding went no further than that, despite the use of the word "find" in the

opinion's conclusory paragraph. The case was then in no posture for anybody- -

certainly not an appellate court, in the first instance--to make any finding.

Findings made on remand by the administrative law judge--or hearing officer, as

he was then known, see Life Care Ctrs. of Am., Inc. v. Sawgrass Care Ctr. Inc.,

21 Fla. L. Weekly D2847, D2489 n.4 (Fla. 1st DCA Nov. 21, 1996) --refute the

allegations we earlier held sufficient as a matter of pleading to support a

claim of standing. Our decision today comports fully with the question of law

actually decided when we saw the case last.

ENDNOTE

1/ Edgewater Beach Owners Association, Inc. v. Board of County Commissioners of

Walton County, 645 So.2d 541 (Fla. 1st DCA 1994)