Everything you want to know about the lawsuit against the county of the Lake Pickett Text Amendment

Below is the timeline of events and below that details of the timeline.  And finally below that are links to the documents.

  • 8/11/2017: RECOMMENDED ORDER
  • 8/22/2017: Orange county Board of Commissioners meeting – Discussion Agenda: III.A.1
  • 3/7/2018: FLORIDA CABINET MEETING
  • 3/30/2018: NOTICE OF APPEAL
  • 6/4/2018:  APPELLANTS’ RESPONSE TO APPELLEE’S JOINT MOTION TO DISMISS
  • 8/6/2018:   APPELLANTS’ INITIAL BRIEF
  • 9/17/2018:  APPELLEES’ JOINT ANSWER BRIEF
  • 3/19/2019:  NOTICE OF ORAL ARGUMENT

8/17/2017: The Recommended Order by Judge Suzanne Van Wyk:

On Aug 11th, 2017, Judge Suzanne Van Wyk, wrote a recommended order after a final hearing on March 27-29, 2017.

First question, what’s a recommended order?  According to this definition (https://tampaschoolofrealestate.com/dictionary/r/recommended-order/) it is, “a determination by an administrative law judge that includes findings and conclusions, as well as the recommended penalty, if any, required by law or agency rule”.

Here’s a much longer definition, https://www.floridabar.org/news/tfb-journal/?durl=%2Fdivcom%2Fjn%2Fjnjournal01.nsf%2FAuthor%2F1AAB7A3C63B64C88852572C90072D6F5.

Recommended orders from administrative law judges (ALJs) are recommendations to an agency head on how a case should be decided. However, the constraints imposed by F.S. §120.57(1)(l)1 on an agency’s ability to disturb the findings of fact and conclusions of law contained within these recommended orders make them somewhat “final.”

There is emphasis in the last link on “finding of fact” and “conclusion of law“.  In the link it says,

Findings of Facts:
When an agency has a legitimate basis for overturning a finding of fact, it must specifically assert this basis in the final order, either by stating with particularity that the finding was not based on competent substantial evidence or that the proceedings, on which the finding was based, did not comply with the essential requirements of law.

Conclusions of Law:
under F.S. §120.57(1)(l), an agency must state with particularity its reasons for rejecting or modifying the conclusion of law or interpretation of administrative rule, and must find that its substituted conclusion of law or interpretation of administrative rule is as reasonable or more reasonable than the one it rejects or modifies.

What seems to be more advantageous to the “agency” which in this case is Orange County is to have a finding be a conclusion of law.  A conclusion of law is within the board’s determination, not a finding of fact.

A very important sentence in the definition is this, “The strict standards imposed by F.S. §120.57(1)(l) and supporting case law are designed to promote and protect the due process rights of those substantially affected by agency action.“.  This comes into play when we see who the Appellants are in the case with the FIFTH DISTRICT COURT case.

It is important to note who the appellants are in the Recommended Order vs the appellants in the case with the Fifth District Court.

They are:  SEERINA FARRELL, ARIEL HORNER, ADELE SIMONS, MARJORIE HOLT, RONALD BROOKE, KELLY SEMRAD, AND CORNER LAKES ESTATES HOMEOWNERS ASSOCIATION, INC.

In the case with the fifth circuit court they started out as
SEERINA FARRELL, ARIEL HORNER, ADELE SIMONS, MARJORIE HOLT, RONALD BROOKE, KELLY SEMRAD AND CORNER LAKES ESTATES HOMEOWNERS ASSOCIATION, INC.,

and are now:
ADELE SIMONS, and CORNER LAKES ESTATES HOMEOWNERS ASSOCIATION, INC..

Why are SEERINA FARRELL, ARIEL HORNER, MARJORIE HOLT, RONALD BROOKE, and KELLY SEMRAD not part of the lawsuit anymore?  this is explained below.
This is related to page 84 where it says, “278. To have standing to challenge or support a plan amendment, a person must be an “affected person,” as defined in section 163.3184(1)(a).”   The judge determined this, “279. Both the Individual Petitioners and Petitioner Corner Lakes, are affected persons within the meaning of the statute.

This is also very important and comes into play with the decision by the cabinet.  “283. The “fairly debatable” standard, which provides deference to the local government’s disputed decision, applies to any challenge filed by an affected person. Therefore, Petitioners bear the burden of proving beyond fair debate that the challenged Plan Amendments are not in compliance. This means that “if reasonable persons could differ as to its propriety,” a plan amendment must be upheld.

The judge decided this, “285. Based on the foregoing Findings of Fact, Petitioners proved beyond fair debate that the Plan Amendments are internally inconsistent…

Also, “286. Petitioners did not prove, beyond fair debate, internal inconsistency between the Plan Amendments and any of the other goals, objectives, and policies cited by Petitioners.

However in the conclusion it states, “291. For the reasons stated above, the Petitioner has proven beyond fair debate that the Plan Amendments are not in compliance with the specified provisions of chapter 163, Florida Statutes.

And the final recommendation in  the document states, “Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that Orange County Comprehensive Plan Amendments 2015-2-P-FLUE-1 and 2015-2-A-5-1, adopted by Ordinance 2016-17 on July 12, 2016, are not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes.


8/22/2017: Orange county Board of Commissioners meeting – Discussion Agenda: III.A.1:

The discussion lasted 44 minutes and can be  found on the Orange County website here:

Commissioner Bonilla brought the idea forward to have the board stop the process and rescind the text amendment.  During the first discussion the thought was to let the process continue for several reason.  Attorney Jeff Newton was asked to research the question and come back with clarification.

Later in the session under the title, “III.C.2. Discussion Agenda – Utilities Department” Jeff Newton explained the position of the County.  The recommendation was to continue in the process and allow the case to go to the Florida Cabinet.


3/7/2018: FLORIDA CABINET MEETING:

Begins on page 40 of the transcript.

On August 11, 2016, Petitioners filed a petition with DOAH challenging the Plan Amendments, and they assert: One, internal inconsistency with the County’s Comprehensive Plan. Two, that the amendments were not based on relevant and appropriate data. And, three, that the amendments did not provide meaningful and predictable guidelines for more detailed land development regulations. Additionally, Petitioner Ronald Brooke also challenged the amendments as not effectively discouraging urban sprawl. Any of the above would render the Plan Amendments out of compliance with Chapter 163, part two, of Florida Statutes.

the Commission may not reject or modify the Administrative Law Judge’s findings of fact unless the Commission first determines, from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence, or that the proceedings in which the finds were based did not comply with the essential requirements of the law.  Therefore, 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. Competent substantial evidence means such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.

The experts in this case who testified all agree that the Comprehensive Plan does not define urban development, and that the County has discretion to determine the characteristics of urban development within its jurisdiction… The ALJ finds that the experts are correct that the Comprehensive Plan contains no glossary definition of urban development, which would determine the specific threshold at which residential densities would become urban. ALJ finds Petitioner proved that the Plan Amendments meet two indicators of urban sprawl, then further found that the Lake Pickett guiding principals meet four of the criterion that determine that the plan discourages urban sprawl. Petitioners therefore did not prove that the Plan Amendments failed to discourage urban sprawl.

the Commission, in its final order, may reject or modify the conclusions of law over which it has substantive jurisdiction. 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.

The Petitioners did not prove beyond fair debate that the Plan Amendments do not react appropriately to data to the extent required during the Comprehensive Plan amendment process. Finally, the ALJ concluded that the Petitioners did not prove their meaningful and predictable standards argument. The ultimate conclusion in the recommended order is that Petitioner has proven, beyond fair debate, that the Plan Amendments are not in compliance with the Comprehensive Plan.

See page 48-52 for more on what the legal finding were…

Several people are here today who may speak in support of Petitioners, and one of those individuals is Orange County Commissioner Emily Bonilla. To alleviate any confusion, and with all due respect to Commissioner Bonilla, I need to make it clear to you that she speaks on behalf of herself, not for the County, or for the Board of County Commissioners.

pg 55 if an ALJ labels something as a finding of fact, but, in fact, it really is a conclusion of law, this Commission is not bound by how the ALJ labeled that matter.

the ALJ correctly states that the County’s Comprehensive Plan doesn’t define urban development. The ALJ also correctly stated that the County has the discretion to determine the characteristics of urban development within its jurisdiction.

Attorney Maciver repeated  said to  the people there for public comment, “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.

Attorney Maciver again repeated, “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.

Saathoff, “Many opponents of The Grow, including several that spoke here today, live in adjacent or nearby  projects, some of which are built at much higher density than The Grow.

After the public comment, attorney Maciver said this, “the Final Order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order, by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citation to the record … 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.

“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. 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.

The County Commissioners’ finding that the project is rural is within the realm of possible and reasonable interpretations and is fairly debatable.

The County’s asserted interpretation of the Plan Amendments as in compliance is subject to the fairly debatable standard of review. That means that if reasonable people could disagree about the interpretation, both the ALJ and this Commission are
required to uphold the policy choice of the County’s duly elected legislative officials.

The effect on the ultimate conclusion, if the Commission finds the matter of law that the ALJ erred by finding the proposals constitute urban use, the ALJ’s ultimate conclusion that the proposed amendments created an internal inconsistency by directing urban development to the rural service area would be reversed.

My analysis: Paragraphs 118 and 122 are conclusions of law, and have been mislabeled findings of fact. … Policy decisions by the County about how to encourage urban strategies, consistent with Future Land Use Element Goal 2, are subject to the fairly debatable standard. Because reasonable people could disagree about this policy decision, the ALJ was required to defer to the County.

Policy decisions by the County about how to encourage urban strategies, consistent with Future Land Use Element Goal 2, are subject to the fairly debatable standard. Because reasonable people could disagree about this policy decision, the ALJ was required to defer to the County.


3/30/2018: NOTICE OF APPEAL:

The link to the PDF document is below and is a reiteration of the original lawsuit and also summarized the Florida Cabinet meeting.


6/4/2018:  APPELLANTS’ RESPONSE TO APPELLEE’S JOINT MOTION TO DISMISS:

Appellant ADELE SIMONS owns and lives on a two (2) acre naturally wooded lot, within the Rural land use designation, that abuts the subject Lake Pickett land use amendment, and which is currently surrounded by large parcels mostly ten acres in size. She would be adversely impacted by the significant increase in traffic and loss of substantial surrounding wooded areas (including wildlife habitat) to the urban development that would displace the surrounding rural lands as a result of the amendments. ”  I am adversely affected.

Appellant ADELE SIMONS owns and lives on a two (2) acre naturally wooded lot, within the Rural land use designation, that abuts the subject Lake Pickett land use amendment, and which is currently surrounded by large parcels mostly ten acres in size. She would be adversely impacted by the significant increase in traffic and loss of substantial surrounding wooded areas (including wildlife habitat) to the urban development that would displace the surrounding rural lands as a result of the amendments. ”  I am adversely affected.

Andrade specifically testified as to his duty to protect the interests of the HOA residents, and testified that the residents of Corner Lakes believed that the Plan Amendments would destroy the rural character of their community.  Appellant through its representative at the hearing, the President of the HOA (Richard Andrade) testified that it will be adversely affected by the loss of rural character, the loss of open space, adverse effects on Corner Lakes residents rural lifestyles including a reduction of associated wildlife observation opportunities in the neighborhood, increased traffic and potentially increased  police/fire/EMT response times caused by the increase in density and corresponding increase in population prior to introduction of urban services to the area that would serve the new urban development allowed by the proposed Plan Amendments in the Rural Service Area.  ”  This is a joke as Corner Lakes is urban.


8/6/2018:   APPELLANTS’ INITIAL BRIEF:


9/17/2018:  APPELLEES’ JOINT ANSWER BRIEF:


3/19/2019: Lake Pickett Appeal update

Hi everyone On March 19th the Petitioners will be in Daytona to hear what the three appellate judges will say. We don’t know what the outcome will be but we remain confident. It has been a long and tiring Road and we could Not have gotten this far without the support of this community. I also would like to thank our government officials who have 100% stuck behind the people and fought for us every step of the way. Rene Plasencia Carlos Smith Linda Stewart The people in this area have been concerned and have voiced their opinion’s to our local government and every time they shut us out and our voice did not matter. These representatives have stuck their neck out even when it wasn’t popular and stood by us and fought with us. The town of preservation is a hot topic and separate from the issue that the petitioners are fighting for in Daytona. Some like it, some don’t like it, and some need to know more about it before they will make a decision. There has been plenty of talk about it in University Estates. The other communities haven’t seen it because it’s been a exclusive to University Estates. As we have said many times this is in the infantile state and there is a huge possibility that it will not make it to even be put on a ballot for a vote by the people. In the last few days there have been those that have painted the above representatives in a very bad light and have attempted to ruin their reputations. That is unfortunate but it is their prerogative. I remember when our commissioner was Ted Edwards. I don’t have to tell you about how he treated the people and what he did to the people and I don’t have to tell you that the People’s voice meant nothing to him. You may not like the thought of A municipality or a town, but don’t take it out on the representatives that are trying to fight for the people and give them options. If there are better solutions out there we are all ears. Remember there’s just options and if you don’t like them that’s OK. We have to start somewhere to make sure that the peoples voices is heard which is why the petitioners have fought so hard and continue to fight against the terrible text amendment that our local government literally approved while packed rooms of people begged them until 2 o’clock in the morning not to do it. We the petitioners will continue to fight for the people. When the petitioners go to the appellate court on the 19th I’m not sure how fast we will get a decision. We have been told that It could take them up to a year to make a decision. We are hoping that it’s sooner rather than later but as soon as we hear anything we will let you know. Unfortunately due to some health issues I will not be able to join my fellow petitioners but I will be there in spirit and I will be praying.

This has really been a difficult road but we have prevailed over and over again. Look at this picture from the attorney who represent the petitioners and the ATTORNEYS Who represent the developers and the landowners. There is only be 20 minutes allowed for each side to speak. Our one attorney will speak for 20 minutes and their multiple attorneys will share 20 minutes. That’s a lot of attorneys for a couple of petitioners

Here is our group and our attorney


Links to Important Documents Below


RECOMMENDED ORDER

RECOMMENDED ORDER: 8/11/2017
https://www.doah.state.fl.us/ROS/2016/16004556.pdf


Orange County Board of County Commissioner meeting

BCC meeting: 8/11/2017

  • http://netapps.ocfl.net/Mod/meetings/1 
  • On the left click on 2017 meetings
  • Then on the right III.A.1. Discussion Agenda – Commissioner’s Report.
  • Also on the right III.C.2. Discussion Agenda – Utilities Department.

MEETING OF THE GOVERNOR AND CABINET:

ADMINISTRATION COMMISSION AGENDA:  3/7/2018
http://www.myflorida.com/myflorida/cabinet/agenda18/0307/ADCOM030718.pdf

MEETING TRANSCRIPT: WEDNESDAY:  3/7/2018
http://www.myflorida.com/myflorida/cabinet/agenda18/0307/transcript.pdf
S
tarts on page 40

FLORIDA CABINET MEETING VIDEO:  3/7/18
https://thefloridachannel.org/videos/3-7-18-florida-cabinet-meeting/

The hearing starts at 2:07:00


FIFTH COUNTY CIRCUIT COURT:

Search String:
http://search.flcourts.org/texis/search/?dropXSL=&pr=5DCA&prox=page&rorder=1000&rprox=1000&rdfreq=500&rwfreq=500&rlead=1000&sufs=2&order=r&rdepth=0&query=Lake+Pickett

http://search.flcourts.org/texis/search/?dropXSL=&pr=5DCA&prox=page&rorder=1000&rprox=1000&rdfreq=500&rwfreq=500&rlead=1000&sufs=2&order=r&rdepth=0&query=5D18-1418

NOTICE OF APPEAL:  3/30/2018
http://www.5dca.org/Clerk/18-1418%20Adele/181418%20notice%20of%20appeal.pdf#search=Lake%20Pickett

APPELLANTS’ RESPONSE TO APPELLEE’S JOINT MOTION TO
DISMISS :  6/4/2018
http://www.5dca.org/Clerk/18-1418%20Adele/181418%20%20Response.pdf#search=Lake%20Pickett

Appellees’ Joint Motion to Dismiss filed May 21, 2018 is denied: 6/19/2018
http://www.5dca.org/Clerk/18-1418%20Adele/181418%20Order%20Deny%20Motion%20to%20Dismiss_i.pdf#search=5D18-1418

APPELLANTS’ INITIAL BRIEF:  8/6/2018
http://www.5dca.org/Clerk/18-1418%20Adele/181418_Initial%20Brief%20on%20Merits.pdf#search=Lake%20Pickett

APPELLEES’ JOINT ANSWER BRIEF:  9/17/2018
http://www.5dca.org/Clerk/18-1418%20Adele/181418%20Appellee%20answer%20brief.pdf#search=Lake%20Pickett

REPLY BRIEF: 10/25/2018
http://www.5dca.org/Clerk/18-1418/181418_Reply_Brief.pdf#search=5D18-1418

Transcript May 7, 2018 Administration Commission (Governor Cabinet): 10/26/2018
http://www.5dca.org/Clerk/18-1418/181418_Appenix.pdf#search=5D18-1418

NOTICE OF ORAL ARGUMENT: 3/19/2019
http://www.5dca.org/Clerk/18-1418/181418_NOA.pdf#search=5D18-1418


GoFundMe set up by Appellants to pay for legal fees:
https://www.gofundme.com/lake-picketttext-amendment-appeal

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Posted in McCulloch Road.