News / Events

Hearing begins in Miami Corp. case

September 13, 2010

The long-term fate of 47,000 acres of timberland, woods and swamps in southern Volusia County hinges on the outcome of a hearing that begins Tuesday in DeLand.

The property owner, Miami Corp., a Chicago-based family land trust, asked for and received permission from Volusia and Brevard counties earlier this year to change the long-term plans for the 59,000 acres it owns in the two counties.

The company's proposed 50-year plan would allow eventual construction of 25,000 residential units, such as a blend of homes, apartments and condominiums, and 4 million square feet of nonresidential space on about 19,000 acres. Almost 40,000 acres would be placed in permanent conservation, including Deep Creek, two major swamps and wildlife corridors.

But the Florida Department of Community Affairs, which is required to review all such land use plan changes, ruled the changes would put both counties "not in compliance" with their long-term comprehensive plans.

Attempts at mediation to avoid a hearing failed.

Now, over the next two weeks, a judge with the state Division of Administrative Hearings, David M. Maloney, will hear the testimony of multiple planning and environmental experts. Then, he must decide whether Volusia County's proposed changes are in compliance. He could also decide what changes would bring the plans into compliance.

A hearing on the Brevard portion of the plan took place in August and the parties are awaiting a decision in that case.

By some estimates of the parties involved, the two-week Volusia hearing may cost up to $1 million.

At least six attorneys attended part of the Brevard hearing. Expected at the Volusia hearing are attorneys for the county, the Volusia Growth Management Commission and the Edgewater Citizens Alliance for Responsible Development, which intervened in the case.

Experts from state and county agencies, universities and private consultants will discuss planning, wetlands and wildlife, including the habitat needs of the Florida black bear.


What is the Division of Administrative Hearings?
A state agency that provides hearings for state and local government agencies, offering them an "impartial, efficient resource" to resolve disputes.

Why was this case filed with the division?
It's required by law once the community affairs department finds a county "not in compliance."

Why is it required by law?
That dates back to a rewrite of the state's growth management law in 1985, said Jim Murley, a former department secretary who is now an assistant dean for external affairs in the College of Design and Social Inquiry at Florida Atlantic University.

When the state's growth management law was amended in 1975 to add a comprehensive planning process, the state did not include an oversight process for cases where state and local governments could not reach agreement on amendments.

So, cases that couldn't be resolved were handled in circuit courts and the resulting final opinions varied wildly. That yielded 10 years of inconsistent results statewide, Murley said. Agencies weren't getting "guidance that brings common understanding" of how to interpret the law.

The rules were amended to shift the process to the state's existing administrative law program and place the final appeal process with the governor and Cabinet.

What is the role of the administrative law judge who will preside in this case?
The law requires them to determine the facts of the case, based on the "best available data," and decide how that data applies to the individual case being heard.

"Administrative law judges are excellent fact finders," said Murley. That is done through the interplay of the attorneys and witnesses.

The judge, also called a hearing officer, comes up with a "finding of fact and a recommended conclusion of law," Murley said.

What happens after the judge rules?
The final recommended order goes to the governor and Cabinet, who cannot change the finding of fact but can change the recommendations. However, in most cases, Murley said, the panel agrees with the hearing officer. If the panel reaches a different conclusion of law, it must explain why.

Cases don't often make it to the governor and cabinet. Murley said the momentum throughout the process is to settle before that final decision.

This sounds familiar. Have there been other administrative hearing cases involving the Department of Community Affairs and Volusia County?
Yes. In 2007, Volusia County challenged the department's decision to allow a Walmart distribution center in Putnam County, just across the county line from Volusia. After a hearing from March 30 to April 3, 2009, the judge's recommended order was complete in September 2009. The County Council decided last August to give up the legal fight after hearing the county attorney explain that its argument had hit a dead end.

In two other cases, one in 2008 and one in 2003, the department found the county "not in compliance" with a proposed amendment to its long-term planning process. In each case, after lengthy legal wrangling, the issue was resolved without a hearing.