A QUICK CHRONOLOGICAL GLANCE AT THE NEW
PROCESS OF ADOPTING LOCAL PLANS
Schedule Coastal counties and cities in coastal
counties must submit their new plans beginning July 1, 1988
and before July 1, 1990. S163.3167(2)(a). All other cities
and counties must submit beginning July 1, 1988 and before July
1, 1990. 5163.3167(2)(b).
Ipt Public Hearing A public hearing must be held
on the proposed plan before it is transmitted to DCA for
comment. A majority of the governing body of the local government
must agree on the proposed plan. 5163.3184(3).
Transmittal to DCA The local government then transmits
the local plan to DCA which in turn must send the local plan
to "appropriate" state agencies and the regional council within
5 days of receipt of the plan. The state agencies and regional
planning council then have 45 days to make comments to DCA on
the local plan. DCA then has 45 days upon receipt of the state
agencies' comments to review and make its comments to local
2nd Public Hearing The local government has 60 days
Sto adopt the plan with or without the amendments or comments
suggested by the state agencies. The adoption of the local
plan must take place at a public hearing and be transmitted
back to DCA within 5 days of adoption. 5163.3184(7).
DCA Determination of Compliance DCA is given 45
days to determine if the local plan is in compliance with the
law. The notice of intent must be published in the local paper.
Process on Intent of Compliance If the DCA issues
a notice of intent that the local plan is in compliance, any
affected person, (virtually anyone), can request a 120.57 hearing.
This hearing must be conducted at the local area by an independent
hearing officer from the Division of Administrative Hearings.
If the local government's determination of compliance is "fairly
debatable" then the hearing officer must find the local plan
is in compliance. S163.3184(9). (This is called "easy in but
hard to win.") The courts in Florida have stated a zoning ordinance
"may be said to be fairly debatable when for any reason it is
open to dispute or controversy on grounds that makes sense or
point to a logical deduction that in no way involves its consti-
tutional validity." City of Miami Beach v. Lachman, 71 So.2d
148 (Fla. 1953). Under the fairly debatable test a challenger
must "conclusively show or present clear and convincing evidence
that the zoning law is not valid. Watson v. Mayflower Property.
SInc., 177 So.2d 355 (Fla. 2nd DCA 1965); City of Miami Beach
v. 1st Trust Co., 45 So.2d 681 (Fla. 1950). The hearing officer's
order is a recommended order to DCA. DCA has 30 days to issue
a final order if it ultimately determines the local plan is
in compliance. If DCA determines the local plan is not in compli-
ance, it submits its recommended order to the Administration
Commission for final approval. (The recommended order of the
hearing officer is another potential safeguard for local government
because it is unlikely DCA will reverse its own initial determination
that a local plan is in compliance.)
Process on Intent of Noncompliance If the DCA issues
a notice of intent that the local plan is not in compliance
then a 120.57 hearing is automatically held in the local area.
S163.3184(10). Affected persons may intervene. 'The local govern-
ment's determination that the local plan is in compliance is
presumed to be correct and shall be sustained unless it is shown
by a preponderance of the evidence that the plan is not in com-
pliance. Again, the hearing officer's order is a recommended
order to the Administration Commission.
The preponderance of the evidence test is already the general
rule of evidence in administrative cases unless a statute specif-
ically provides otherwise. Look at Fla. Dept. of HRS v. Career
Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974).
Interestingly this degree of proof is less than required
for the hearing on compliance-intent, which is fairly debatable.