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1991-08-14 Morell to Drago t � s MICHAEL WM. MORELL —� ATTORNEY AT LAW 705 FOREST LAIR ADMINISTRATIVE AND GOVERNMENTAL LAW TALLAHASSEE, FLORIDA 32312-1744 ENVIRONMENTAL AND LAND USE LAW (904) 668-7274 August 14 , 1991 Hand Delivered John Drago City Administrator City of Okeechobee 55 Southeast Third Avenue Okeechobee, Florida 34974 Re: Department of Community Affair' s Notice of Intent to Find the City of Okeechobee Comprehensive Plan Not in Compliance Dear John: I enjoyed talking to you today, and having the opportunity to discuss the Department of Community Affair' s (DCA) determination that the City of Okeechobee Comprehensive Plan is not in compliance. After spending some time reviewing DCA' s Statement of Intent (SOI ) to find the City' s Plan not in compliance, I concur with your assessment that the City' s Plan should be found in compliance. The challenge will be demonstrating and documenting this fact to the satisfaction of DCA and/or the Hearing Officer from the Division of Administrative Hearings (DOAH) . This letter describes the basis on which I will provide legal services to the City, and bill for those services . The letter also summarizes the litigation proceedings and negotiation processes that the City may experience in its efforts to have its Plan found in compliance. A copy of my law office profile, which will give you further information about my background and law office, is enclosed. A. Fees My services in connection with this matter would be provided at an hourly rate of $115 . 00 for litigation related services and $90 . 00 for time spent negotiating with DCA and drafting proposed plan amendments that are for discussion during the negotiations or necessary to implement a compliance agreement. In addition, law clerks, working under my supervision, are billed at the rate of $25 . 00 per hour. + ' John Drago August 14 , 1991 Page Two B. Costs In addition to legal fees , bills will include charges for photocopying, travel (air and ground transportation, personal automobile usage at $ . 275 per mile, tolls, lodging, meals, etc . ) , postage, messenger and courier services, telephone charges, etc . Should retaining expert witnesses , consultants and court reporters with regard to the proceedings be advisable, the City would also be directly responsible to the experts, consultants and reporters for payments of their fees . As you are aware, assuming the City determines that it is in its best interest to negotiate a compliance agreement with DCA as described in E . below, both pre-final hearing litigation before DOAH and negotiations with DCA usually occur in Tallahassee. Therefore, the total expense to the City for both my legal fees and travel costs during the matter would be minimized due to the presence of my office and residence in Tallahassee. C. Billings Bills are issued on a monthly basis . Bills which are not paid within thirty days from the date of mailing incur a finance charge of one and one-half percent per month ( 18% per annum) . D. The City of Okeechobee ' s situation is not unusual : most local governments have been in plan compliance litigation with either DCA or other affected persons As of August 5, 1991, DCA had reviewed over 328 adopted plans . Of those 328 plans, DCA issued notices finding 197 plans ( 60% ) not in compliance . Once DCA issues a notice to find a plan not in compliance, the Department initiates litigation against the local government by filing a petition with DOAH. After the petition is filed a Hearing Officer is assigned to the case and the case is scheduled for final hearing, usually six months later. The final hearing is required to be held within the City. Affected persons who objected during the City' s plan review and adoption proceedings may intervene in the proceedings up until 5 days before the final hearing. Although intervenors may enter the case in defense of the the City and its Plan, they may also raise issues other than those raised by the Department if they intervene early in the proceedings . Therefore, the City may experience challenges to its Plan from persons other than DCA. Even if DCA issues a notice to find a plan "in compliance" , the local government may still find itself in litigation defending its plan against challenges brought by citizens groups, individual • • John Drago August 14, 1991 Page Three residents, property owners or governmental entities other than DCA. At least twelve ( 12) local governments including the cities of Oakland Park, Miami Beach, Cocoa, and the counties of Manatee, Sarasota, Broward, Volusia and Jefferson have had to defend their plans in administrative litigation even after DCA approved them. Therefore, approximately 6 out of every 10 local governments have involuntarily found themselves in litigation over their comprehensive plans . E. Advantages of negotiating a compliance agreement with DCA: avoiding sanctions and minimizing litigation expense Many local governments have been successful in minimizing litigation costs and avoiding fiscal sanctions by negotiating with DCA and entering into stipulated settlement agreements commonly referred to as compliance agreements . These agreements require that the local government consider adopting agreed-upon amendments to the adopted plan. If the local government adopts the agreed- upon amendments, DCA will join the local government in asking the Hearing Officer to relinquish jurisdiction of the case to the Governor and Cabinet sitting as the Administration Commission. The agreement then provides that DCA will request the Administration Commission to find the plan as amended "in compliance" prior to dismissing the case, without imposing sanctions . Of the 197 plans found not in compliance, 135 local governments (69%) have entered into compliance agreements with DCA. The reason local governments have pursued compliance agreements in such large numbers is the potential negative fiscal impact on the local government as a result of the sanctions policy adopted by the Administration Commission in October 1989 . Under this policy, if a local government is ultimately found by the Administration Commission to be not in compliance, the Commission will withhold 1/365th of the state shared revenues described in Section 163 . 3184 ( 11) , Florida Statutes, for each day the plan is not in compliance. The sanctions are imposed retroactive to the day DCA issued its notice of intent to find the plan not in compliance (August 7, 1991) , and run until the plan is brought in compliance. Taking into account the approximate six months it takes to get to final hearing, three months for issuance of recommended and final orders and nine months for plan amendment processing and evaluation, sanctions could amount to a loss of state shared revenues for one-and-one half to two years . Very few local governments have been willing to run that risk so far. In fact, only three "not in compliance" plans have gone to final hearing. Therefore, although it is necessary for the City to protect its interests because DCA has initiated administrative litigation, it may be advisable for the City to pursue a compliance agreement in order to avoid sanctions and minimize litigation expenses normally associated with conducting a trial-like evidentiary hearing before John Drago August 14, 1991 Page Four the Hearing Officer. The period of time during which the compliance agreement negotiation and implementation process occurs can take as long as 7-12 months after DCA issues its SOI to find the adopted plan not in compliance. This includes time associated with: litigating the case prior to signing a compliance agreement (the litigation is abated once the parties sign the agreement) ; time for negotiating the compliance agreement including drafting the agreed-upon amendments to the adopted plan which are incorporated into the agreement; conducting a required public hearing to approve the compliance agreement before entering into it; conducting the required public hearings prior to adopting the necessary proposed amendments to conform the adopted plan to the agreement; DCA' s review of the amendments; requesting the Hearing Officer to relinquish jurisdiction; and obtaining a final order from the Administration Commission finding the plan in compliance and dismissing the case. F. Data, analysis, mapping, surveys inventories and plan methodology In preliminarily reviewing the SOI, it appears that DCA is alleging that areas of the plan may be deficient with respect to statutory and rule requirements concerning data, analysis, mapping, inventories and plan methodology. Although the statute provides that DCA shall not construe its rules to require original data collection by local governments, the statute does require that plan goals and policies be clearly based on "appropriate data" and that data be collected according to "professionally accepted methodology" . DCA asserts in the SOI that maps are lacking in one or more required features including wetlands, conservation uses, etc. If DCA' s allegations are correct, correcting many of these deficiencies to the satisfaction of DCA may require additional data collection and correlation unless the data is actually available and simply not reported. Where such data gathering, analytical and methodological tasks cannot be completed before the compliance agreement is signed, they may be discussed during negotiations with DCA in the context of work to be accomplished in the future. The Legislature has directed DCA to take into account a number of various factors as the Department provides assistance to local governments and applies Rule 9J-5 in specific situations with regard to the detail of the data and analysis required. Many of these factors seem to apply to communities like the City of Okeechobee. These factors include existing and projected population and rate of population growth; size of the local government and the existence of undeveloped I John Drago August 14, 1991 Page Five land; and especially the existence of features requiring "special" data and analysis such as prime groundwater recharge areas, water wells, wetlands, wildlife habitat, etc. Similarly, the Hearing Officers and the Administration Commission appear to be interpreting the statute so as to recognize DCA' s broad discretion in determining which provisions of Rule 9J-5 ' s hundreds of requirements are applicable in an individual community' s situation. The City may be successful in negotiating exclusions for many of these tasks during the compliance agreement negotiation process . DCA often makes some monies available in the agreement to accomplish these tasks . However, where DCA insists on certain tasks , or the City agrees to perform data collection, analysis or mapping as a part of a compliance agreement, or where these tasks are mentioned in proposed amendments to the plan as required prior to adopting land development regulations (LDR' s ) , or required as part of the LDR' s, such tasks are not included within my services . My services will include necessary revision to the Plan' s introductory text and goals, objectives and policies as well as augmenting the data and analysis with additional text where necessary. However, my services will not include the collection of data, conduct of surveys, compilation of inventories, the recalculation of existing data, or the development and editing of additional tables, inventories, maps , etc . If these tasks are necessary my services will be available to consult with the City and assist the City in supervising Regional Planning Council staff or other consultants in performing these tasks . I look forward to representing the City of Okeechobee and the opportunity to work with you, the Mayor and Council and the citizens of the City. Please don' t hesitate to call if you have any questions . With best personal regards, I am Sincerely, // 1. ,, 'fin Michael Wm. Morell Attorney at Law MWM:mm Enclosure MICHAEL WM. MORELL ATTORNEY AT LAW 705 FOREST LAIR ADMINISTRATIVE AND GOVERNMENTAL LAW TALLAHASSEE, FLORIDA 32312-1744 ALSO ADMITTED IN THE ENVIRONMENTAL AND LAND USE LAW DISTRICT OF COLUMBIA (904) 668-7274 The Law Office of Michael Wm. Morell Michael Wm. Morell is an attorney in private practice who resides in Tallahassee with his wife Diann and their 13 month old daughter Juliana Grace. He was admitted to the Florida Bar in 1986 and is also admitted to practice law in the District of Columbia . His practice focuses primarily in the areas of Administrative and Governmental Law and Environmental and Land Use Law. From June 1989 - December 1990, he was Staff Counsel to the Florida Legislature, Joint Select Committee on Growth Management Implementation. While with the Growth Management Implementation Committee, he developed and supervised the Joint Committee ' s staff efforts to oversee the implementation of Florida ' s landmark 1985 Growth Management Act . Prior to joining the Growth Management Implementation 0 Committee, he was an associate with the law firm of Carson, Linn and Adkins , P .A. , which is located in Tallahassee and specializes in Labor and Employment Law, and Administrative and Regulatory Law. In 1986 , while with the firm, Mike represented the Florida Association of Counties on environmental and land use issues including the 1986 amendments to the Growth Management Act. From 1975 to 1983 , he was Legislative Coordinator and Field Services Administrator for the State Association of County Commissioners of Florida, Inc . In 1977 , while with the County Commissioners Association, Governor Askew Appointed Mike to his Policy Advisory Committee on the Economic Development Element of the 1972 State Comprehensive Plan. Mike graduated from the University of Florida College of Law where he was a member of the Law Review. While in Gainesville he was also Senior Research Assistant for the Growth Management Studies Progam at the College of Law where he supervised research 0 and the development of implementation strategies regarding Florida ' s growth management legislation. He also holds Bachelor of Science and Masters of Public Administration degrees from Florida State University.