IN THE SUPREME COURT OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, CASE NO: SC03-400 FIFTH DCA NO: 5D01-3413 v. ST. JOHNS COUNTY, Respondent. / On Discretionary Review from the District Court of Appeal, Fifth District of Florida AMENDED JURISDICTIONAL BRIEF OF APPELLANT, 1000 FRIENDS OF FLORIDA JANET E. BOWMAN LEGAL DIRECTOR 1000 FRIENDS OF FLORIDA FLORIDA BAR NO. 0718114 P.O. BOX 5948 TALLAHASSEE, FL 32314-5948 (850) 222-6277
TABLE OF CONTENTS Page TABLE OF CONTENTS........................ i TABLE OF CITATIONS...................... i,ii STATEMENT OF THE CASE AND FACTS................. 1 SUMMARY OF THE ARGUMENT..................... 1 ARGUMENT.............................2 ISSUE WHETHER THE OPINION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH DEPARTMENT OF TRANSPORTATION V. LOPEZ-TORRES, 526 SO.2D 674 (Fla. 1988), AND PALM BEACH COUNTY V. WRIGHT, 641 SO.2D 50 (FLA. 1994). CONCLUSION.......................... 8 CERTIFICATE OF SERVICE................... 8,9 STATEMENT CERTIFYING TYPE SIZE AND STYLE.......... 9,10 TABLE OF CITATIONS Cases Department of Transportation v. Lopez-Torres, 526 So.2d 674 (Fla. 1988)............... 1,2,5,6,8 1000 Friends of Florida, Inc., v. St. Johns County, 765 So.2d 216 (Fla. 5 th DCA 2000)................ 2 Palm Beach County v. Wright, 641 So.2d 50 (Fla. 1994).1,2,4,5,6,8 i
Rinker Materials v. Town of Lake Park, 449 So. 2d 1123 (Fla. 1986)..................2,3 Other Authority Fla. Const. Article V, 3(b)(3)......................1 Statutes Fla. Stat. Chapter 163, Part II............... 4,5 Fla. Stat. 163.3161..................... 4 Fla. Stat. 163.3163(3)....................7 Fla. Stat. 163.3164..................... 5 Fla. Stat. 163.3164(5)....................3 Fla.Stat. 163.3164(24)....................5 Fla.Stat. 163.3177(3)(a)....................6 Fla.Stat. 163.3177(6)(a)................... 6 Fla.Stat. 163.3177(6)(b)................... 6 Fla.Stat. 163.3177(6)(c)................... 6 Fla.Stat. 163.3180...................... 7 Fla.Stat. 380.04(3)......................3 Chapter 85-55, Laws of Florida................ 3 Florida Administrative Code Chapter 9J-5, Florida Administrative Code...........6
ii STATEMENT OF THE CASE AND FACTS Appellant, 1000 Friends of Florida, adopts the Statement of the Case and the Facts and the Appendix set forth by Petitioner, Department of Community Affairs in its jurisdictional brief of March 11, 2003. References to that appendix will be to the appendix page numbers set forth in that brief. STANDARD OF REVIEW This Court has jurisdiction pursuant to Art. V, Section 3(b)(3), Fla. Const., to review any decision of a district court of appeal that expressly and directly conflicts with a decision of the supreme court on the same question of law. 1
SUMMARY OF THE ARGUMENT The Fifth District Court of Appeals decision below exempts local governments from addressing in their local government comprehensive plan requirements for road and sewer improvements no matter their size or scope as long as they are constructed within existing rights of way. (A-6). This decision expressly and directly conflicts with decisions of this court in Department of Transportation v. Lopez-Torres, 526 So. 2d 674 (Fla. 1988), and Palm Beach County v. Wright, 641 So.2d 50 (Fla. 1994). ARGUMENT ISSUE WHETHER THE OPINION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH Department of Transportation v. Lopez-Torres, 526 So. 2d 674 (Fla. 1988), and Palm Beach County v. Wright, 641 So.2d 50 (Fla. 1994). The Fifth District Court of Appeals decision to quash the declaratory statement of the Department of Community Affairs was based on its previous holding in 1000 Friends of Florida, Inc., v. St. Johns County, 765 So.2d 216 (Fla. 5 th DCA 2000), that states In Rinker Materials Corp. v. Town of Lake Park, 494 So. 2d 1123 (Fla. 1986) the Supreme Court held that sewer and roadway improvements within the right of way are not subject to the requirements of Part 2
two of chapter 163. Id at p. However, this court recognized in two cases issued subsequent to Rinker, Department of Transportation v. Lopez-Torres, 526 So.2d 674 (Fla. 1988), and Palm Beach County v. Wright, 641 So. 2d 50 (Fla. 1994), that the Local Government Comprehensive Planning and Land Development Act, part II of Chapter 163, Fla. Stat., requires local governments to address both existing and proposed roads in their comprehensive plans whether or not such facilities are located within existing right-of-way. In Rinker Materials Corporation v. Town of Lake Park, 494 So. 2d 1123 (Fla. 1986), this court, in reviewing a circuit court bond validation, held that certain roadway, drainage, and water and sewer improvements within a Special Improvement District were not required to conform to the Lake Park Comprehensive Plan because the definition of development in Section 164.3164(5), Fla. Stat. (1985), excludes from the definition of development: any work done on the maintenance or improvements of roads or the construction of sewers, mains, pipes, and the like on established rights of way, Id at p. 1126. The definition of development in section 164.3164(5), Fla. Stat. (1985), cross-references the definition of development set forth in section 380.04(3), Fla. Stat., which excludes from the definition of development: Work by a highway or road agency or railroad company for the maintenance or improvement of a 3
road or railroad track, if the work is carried out on land within the boundaries of the right-of-way. Work by any utility and other persons engaged in the distribution or transmission of gas, electricity, or water, for the purposes of inspecting, repairing, renewing, or constructing on established rights-of-way any sewers, mains, pipes, cables, utility tunnels, power lines, towers, poles, tracks, or the like. The majority of the new planning requirements enacted as part of the Local Government Comprehensive Planning and Land Development Regulation Act did not take effect until October 1, 1985 and the Department of Community Affairs was given until February 15, 1986 to adopt rules setting forth criteria for reviewing whether local government comprehensive plan elements complied with the planning requirements of the Act. 1 Accordingly, Rinker was decided during a period of time during which local governments had not yet updated their comprehensive plans to comply with the new planning requirements of the Act. In contrast, the subsequent cases of Department of Transportation v. Lopez- Torres, 526 So. 2d 674 (Fla. 1988)and Palm Beach County v. Wright, 641 So. 2d 50 (Fla. 1994), were decided during a period where most local governments had revised their comprehensive plans pursuant to the 1985 Local Government Comprehensive 1 Chapter 85-55, Laws of Florida 4
Planning and Land Development Regulation Act and Rule 9J-5, Florida Administrative Code. In Department of Transportation v. Lopez-Torres, 526 So. 2d 674 (Fla. 1988), this court acknowledged that both existing and proposed roads are required to be addressed in their comprehensive plans pursuant to Section 163.3161, Florida Statutes: Although the primary responsibility for planning the location of state roads and bridges rests with the Department of Transportation, local governments are required to develop and adhere to comprehensive planning programs pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act.Among the issues to be included in a community s plan are those issues addressing existing and proposed transportation routes. The intent of the Act was to encourage and assure coordination between state and local levels of government in planning and development activities. Section 163.3164, Fla. Stat. (1985) Id. at p. 676. Similarly, in upholding a Palm Beach County thoroughfare map implemented in the traffic circulation element of its comprehensive plan, this court acknowledged in Palm Beach County v. Wright, 641 So. 2d 50 (Fla. 1994) that: Section 163.3177(6)(b), Florida Statutes (1991), requires the comprehensive plan to contain a traffic circulation element consisting of the types, locations, and extent of existing and proposed major thoroughfares and transportation routes,.palm Beach County was further required by Florida Administrative Code Rule 5
9J-5.007(3)(b)(4) and (c)(4), promulgated by the Department of Community Affairs and approved by the legislature in section 163.3177(10), Florida Statutes (1991), to place measures in the comprehensive plan to protect existing and future rights-of-way from building encroachments and to preserve and acquire existing and future rights-ofway. Id at p. 52-53. By referring to existing road rights-of-way, the decisions in both Lopez-Torres, and Wright clearly do not exclude facilities located within existing right-of-way from the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act, that such facilities be addressed within the appropriate elements of the local comprehensive plan. Section 163.3164, Fla. Stat. (2002) requires local governments to address the provision and location of public facilities 2 in a number of places within the comprehensive plan: a. A future land use map that depicts the proposed future distribution, location and extent of the uses of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public building and grounds, other public facilities, and other categories of public and private uses of land. Section 163.3177(6)(a), Fla. Stat. b. A traffic circulation element consisting of the types, locations and extent of existing and proposed major 2 Section 163.3164(24), Fla. Stat., defines public facilities as major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational, and health systems and facilities, and spoil disposal sites... 6
thoroughfares and transportation routes, including bicycle and pedestrian ways. Section 163.3177(6)(b), Fla. Stat. c. A general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element correlated to principles and guidelines for future land use, including ways to provide for future potable water, drainage, sanitary sewer, solid waste and aquifer recharge protection requirements for the area. Section 163.3177(6)(c), Fla. Stat. d. A capital improvement element designed to consider the need for and location of public facilities in order to encourage the efficient utilization of such facilities Section 163.3177(3)(a), Fla. Stat. The decisions in Lopez-Torres and Wright recognize important public purposes served by requiring local governments to include the location of existing and proposed road right-of-way in the local government comprehensive plan as a method of placing the public on notice as to the future plans of the local government. For example, in Wright, this court states: One of the purposes of the thoroughfare map is to place property owners on notice as to the necessity and location of future roads. Wright at p. 53. If local governments excluded existing road right-of-way from their traffic circulation element, the only information that would remain would be proposed future roads. Similarly, if local governments were to exclude all potable and wastewater transmission lines located in public right-of-way from the 7
sanitary sewer and potable water element of the local government comprehensive plan, the public is deprived of information on whether the water and sewer infrastructure is adequate to meet current and future needs. Moreover, sanitary sewer, transportation, and potable water are identified by the Legislature as public facilities and services subject to the concurrency requirements of Section 163.3180, Fla. Stat. (2002). Generally, concurrency requires that these public facilities must be in place to serve new development within a defined period of time. If local governments are not required to include those facilities that are located on public rights-of-way, citizens and the Department of Community Affairs will lack the information necessary to determine whether proposed developments satisfy the concurrency requirement, or whether the local government has adequately planned for the provision of key public services. Exempting roads and water and sewer facilities that are located within public rights-of-way from the entire scope of the Local Government Comprehensive Planning and Land Regulation Act will seriously undermine one of the central purposes of the Act, which is to facilitate the adequate and efficient provision of transportation, water, sewerage, schools, parks, recreational facilities, housing, and other requirements and services. Section 163.3161(3), Fla. Stat. (2002). 8
Conclusion The Fifth DCA's decision directly and expressly conflicts with the decisions of this court in Lopez-Torres and Wright and sets a troubling precedent by negating one of the central purposes of the Local Government Comprehensive Planning and Land Regulation Act of 1985, that local governments plan for the adequate provision of public services. Respectfully submitted, JANET E. BOWMAN Legal Director 1000 Friends of Florida Florida Bar No. 0718114 P.O. Box 5948 Tallahassee, FL 32314-5948 (850) 222-6277 CERTIFICATE OF SERVICE I certify a true copy of the foregoing Amended Initial Brief on Jurisdiction was served upon the individuals listed below by U.S. Mail this day of April, 2003. 9
David L. Jordan, Esq. Deputy General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 Geoffrey B. Dobson, Esq. Dobson & Brown 66 Cuna Street, Suite A St. Augustine, FL 32084 Robert C. Downie, II, Esq. Assistant General Counsel Roger B. Wood, Esq. Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Janet E. Bowman 1000 Friends of Florida Florida Bar No. 0718114 P.O. Box 5948 Tallahassee, FL 32314-5948 (850) 222-6277 STATEMENT CERTIFYING TYPE SIZE AND STYLE I certify Courier New 12-point, non-proportionately spaced type is used in this brief, in accord with Fla.R.App.P. 9.210(a)(2) 10
on this day of April, 2003. JANET E. BOWMAN LEGAL DIRECTOR 1000 FRIENDS OF FLORIDA FLORIDA BAR NO. 0718114 P.O. BOX 5948 TALLAHASSEE, FL 32314-5948 (850) 222-6277 11
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