On August 11, 2016 petitioners filed a petition against Orange County entering into a lawsuit that paralyzed any progress to improve our traffic situation west of the Econ and around UCF.
This post is not to take a side on this lawsuit or promote the urbanization of the rural area but to look at the effect it is having on people who live west of the Econ River in the Urban Service Area who have to use our roadways to travel to work everyday and endure the unintended result of this lawsuit.
The post is to give an objective view regarding this lawsuit and provide a full picture of why nothing is being done about traffic in East Orange County and why the governor and his cabinet decided against the petitioners. It is especially interesting to note that the cabinet did not side with Orange County which sounds strange yet makes sense when you hear what the criteria was in determining the outcome. As you will read and hear, the state’s staff attorney, Mr. Maciver, repeatedly said the cabinet must follow the letter of the law.
Below are links to the video as well as the complete transcript. The hearing starts at 2:07:00 if you want to endure 1 1/2 hours of this hearing or just read the highlights below.
3/7/18 Florida Cabinet Meeting Video
Transcript of the hearing
This quote from the transcript sums up this hearing in a nutshell.
ATTORNEY GENERAL BONDI: “Every time we have one of these, I don’t believe these should be coming before us, for that reason. These are things that just should not– these local disputes should not come before the Florida Cabinet.”
GOVERNOR SCOTT: “Why do we hear these cases? “
ATTORNEY GENERAL BONDI: “Good question, Governor. I think we need to change the law on that. We say this every time we get these”
On August 11, 2016 several petitioners: Seerina Farrell, Ariel Horner, Adel Simons, Marjorie Holt, and Dr. Kelly Semrad and petitioner Ronald Brooke sued Orange County. These petitioners contested a text amendment called the Lake Pickett Text Amendment that allowed a development called the Grow to be built in the rural area just east of the Econ River and north of Highway 50.
How does a lawsuit about the rural area affect traffic?
Back in 2016, the Orange County Board of County Commissioners directed staff to conduct a regional traffic study of this area that was supposed to be completed in December of 2017 and be the beginning of a plan to address traffic problems in East Orange County. When this lawsuit happened, that study was frozen and nothing has happened since except more traffic. Time stood still. The county couldn’t move forward until they knew the outcome of this lawsuit. Here is what happened at the hearing in Tallahassee before the governor and cabinet with the outcome against the petitioners and in favor of Orange County. The big question is will this decision end the freeze.
A staff attorney, Attorney Maciver, who facilitated the hearing said this:
“The purpose of the agenda item today is for the Commission to consider the recommended order, the party exceptions and arguments, and relevant law, and to vote on final action.” (on video at 2:08:30)
“The findings of fact can only be modified or rejected if they are not based upon competent substantial evidence, or the proceedings did not comply with the essential requirements of law.” (on video at 2:14:35)
“When rejecting or modifying such conclusion of law the Commission must state with particularity its reasons for rejecting or modifying such conclusion of law, and must make a finding that its substituted conclusion of law is as, or more, reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. Therefore, the conclusions of law can be modified and rejected only if the Commission states with particularity its reason for modifying and rejecting, and the Commission makes a finding that its substituted conclusions of law are better than that of the ALJ.” (on video at 2:20:10)
He also made it very clear that “during a Comprehensive Plan challenge the members of the Commission do not sit as a policy making body. They are sitting in a quasi judicial capacity, and only have the authority to consider the narrow questions before them. Like judges, they are required to take the law as it is written, and apply it to the facts in the case before them. In this case, that means that the Commission is not passing judgment on whether this is a good or a bad proposal. They are not applying their own policy judgments, and like judges, they are not permitted to consider the weight of public opinion. They are only allowed to determine whether the ALJ made the correct legal recommendation in this case, and as noted earlier, they are expressly restricted to considering the facts that are in the record established at the DOAH hearing.” (on video at 2:47:30)
There were several speakers on both sides. The facilitator of the hearing flip flopped back and forth between those for and against. All speakers made excellent points. Throughout the hearing the staff attorney had to remind the speakers and commission that only what is in the record can be considered. He wanted to make it very clear that the commissions latitude was limited to what was in the record. here are some quotes made to this point directly from the transcript:
“ATTORNEY MACIVER: Again, I apologize for the nature of being a broken record, but I have to remind everybody, the Administration Commission here sits today as quasi judicial body. They are not actually weighing whether this is a good proposal, or a bad proposal, but only whether the ALJ was correct in her findings.” (on video at 3:35:15)
“ATTORNEY MACIVER: Commissioners, again I have to remind you that you are limited to reviewing the things that are in the record during this proceeding today. And, additionally, while you are, of course, all elected executive high level officials, you are not sitting in that capacity today. You are sitting as a quasi judicial body, who is reviewing the facts and the law before you.”
Something that is very disrespectful and uncalled for is when someone in the crowd heckles or speaks out while a person is speaking. It is very disrespectful and speaks volumes about the character of that person. It was nice to see the Attorney General say something while one of the Rybolt daughters was at the podium. Why do people think it is ok to do this kind of thing? Another outburst occurred at the end of the hearing as people were leaving. What that person said at the end was indistinguishable and credit must be given to the cabinet for ignoring the comment. Here is what Attorney General Bondi said when she interrupted the speaker to address the audience:
“ATTORNEY GENERAL BONDI: Ma’am, excuse me one minute. Hey, ladies, gentlemen, everyone respected you when you spoke. Please respect them when they speak, whether or not you agree with them. Thank you.” (on video at 3:43:15)
The state’s staff attorney then said this which was the key point in the entire hearing:
“Florida law provides a Plan Amendment shall be determined to be in compliance if the local government’s determination of compliance is fairly debatable. The fairly debate standard of review is a highly deferential standard, requiring approval of a planning action if reasonable persons could differ to its propriety.” (on video at 3:53:30)
The key words in this statement are “fairly debatable”. This was discussed in detail as shown below.
“GOVERNOR SCOTT: Can we go back to the standard again? Just tell us again the standard.
ATTORNEY MACIVER: Yes, Governor. The standard for the Plan Amendments, if the local government’s determination– if they are of compliance, they are fairly debatable. A fairly debatable standard of review is a highly deferential standard requiring approval of a planning action, if reasonable persons could differ as to its propriety. So, if there is a reasonable disagreement, or if there is a side of the debate that is not clearly, clearly outside the realm of reality, then you have to side with the County Commission.
GOVERNOR SCOTT: So, it doesn’t– it doesn’t matter the merits. We have to– if it’s debatable, we have to go with the County Commission?
ATTORNEY MACIVER: Correct, Governor. If there is– if there– if the parties have both put up two sides– one way that I could put this is, let’s say that we are putting sky-scrapers in a rural area. That would be so clearly on its face not in compliance, that you would– there would be no reasonable debate about that. On the other hand, if we were putting one farm house in the middle of 20 acres, that would be clear. For things that are in the middle, if there is debate about whether or not that is, or is not, in compliance, you are bound, by case law, to side with the determination of the County Commission.
ATTORNEY GENERAL BONDI: You want me to try to simplify that? Okay. And, again, every time we have one of these, I don’t believe these should be coming before us, for that reason. These are things that just should not– these local disputes should not come before the Florida Cabinet. We have to keep in mind though that this is a legal question, and there are specific standards of review. We have heard very compassionate, emotional arguments on both sides of the issue. On both sides. But, we also have to note that this is a de novo review, meaning, unlike some other things, we do not follow, or have deference to, the ALJ, the Administrative Law Judge’s findings in this case, because it’s a de novo review. Therefore, what was just explained to you was that because it’s fairly debatable it requires deference to be given to the County Commission, who heard all of this. Who voted. We’ve heard it wasn’t unanimous. We have a member here whose against it. But, they did vote a certain way. And, that’s what the law requires.
GOVERNOR SCOTT: Why do we hear these cases?
ATTORNEY GENERAL BONDI: Good question, Governor. I think we need to change the law on that. We say this every time we get these– look at one.”
At the end attorney Maciver asked for a final motion.
“I am going to remind both the folks in the audience, and the Commission itself, that these final votes are not choosing one side or the other. They are applying the legal standards of review to the facts in this case, and arriving at the conclusion that is dictated by the law. It’s not choosing one side and then getting the exceptions that support that side, or vice-versa.
Because the Commission has accepted Respondent/Intervenors’ Exceptions 1 through 4, the only logical conclusion is the third option that I have listed here, which is that the Commission would modify the recommended order in favor of Respondent/Intervenors. This will take a vote of the Governor, plus one, or rather simple majority. A motion or a vote would be to issue a final order that adopts the recommended– the findings of fact and conclusions of law of the recommended order, except as modified by the adoption of relevant exceptions, and to grant Respondent/Intervenors’ Exception No. 38, which was to change the paragraph that stated the ultimate conclusion of law.
The effect of this option would be that we would– this Commission would find that the Plan Amendment is in compliance with Chapter 163, because the meaning of the language contained in the policy is fairly debatable. And, paragraph 291 would be rewritten to state that the Petitioner had failed to prove, beyond fair debate, that the Plan Amendment is not in compliance with the specified provisions of Chapter 163.
. Again, the motion that is necessary is to issue a final order that adopts the findings of fact and conclusions of law in the recommended order, except as modified by the adoption of the exceptions that have been adopted today, and to grant Respondent/Intervenor Exception No. 38.
GOVERNOR SCOTT: Is there a motion?
ATTORNEY GENERAL BONDI: So moved.
GOVERNOR SCOTT: Is there a second?
CFO PATRONIS: Second.
GOVERNOR SCOTT: Comments or objections?
GOVERNOR SCOTT: Hearing none, the motion carries. “ (on video at 3:43:15)
After the hearing was over and people were leaving, someone in the audience interrupted the next hearing with an outburst. it is indiscernible but there was most definitely an outburst. It is on the video at 4:33:00. Maybe you can make out what was said.
In summary, let’s hope this is over and we can move forward from here for the sake of all the residents who live in the traffic everyday.