Resolution 110-1989
RESOLUTION NO. 110 -1989
A RESOLUTION OF THE BOARD OF COUll"l"Y COMHISSIOHERS OF HORROE
COUll"l"Y, FLORIDA, AFFIRMING THE LEGAL POSITION OF HORROE COUll"l"Y AS
IT PERTAINS TO THE BURDEN OF PROOF IN APPEALS TAKEN BY THE
FLORIDA DEPARTMENT OF COMHOHITY AFFAIRS FROM LOCAL DEVELOPKENT
ORDERS.
WHEREAS, THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,
FLORIDA, desire to establish that appeals of Local Development
Orders under Chapter 380 Florida Statutes, requires that the
Appellee/Petitioner STATE OF FLORIDA, DEPARTMENT OF COMMUNITY
AFFAIRS carry the burden of going forward with the evidence as
well as the burden of ultimate persuasion in appeals taken from
Local Development Orders, and
WHEREAS, under the provisions of Section 380.07 Florida
Statutes, the Florida Department of Community Affairs is the
"State Land Planning Agency" that may appeal Local Development
Orders to the Florida Land and Water Adjudicatory Commission, by
filing a Notice of Appeal with the Commission, and
WHEREAS, the filing of the Notice of Appeal stays the
effectiveness of the Local Development Order until after
completion of the appeal process, and
WHEREAS, the "burden of proof" issue goes to the very
essence of the presumed validity of local governmental action,
and
WHEREAS, in appeals of Local Development Orders, it is the
Appellee/Petitioner that is attacking the propriety of local
administrative decisions in the matter, and
WHEREAS, it is the Appellee/Petitioner that is asserting the
Affirmative of the issue under appeal and this requires that the
Appellee/Petitioner carry the burden of proof by showing an abuse
of discretion on the part of local government, and
WHEREAS, the established standard for proving an abuse of
discretion by local government is the "fairly debatable" rule
regarding such proof. NOW THEREFORE,
. . i ',.!,,' (1
BE IT RESOLVED BY THE BOARD OF COMMI'SSIONERS OF MONROE
j ~;NOW
COUNTY, FLORIDA, as follows:
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-.
The Governor and Cabinet sitting as the Florida Land and
Water Adjudicatory Commission are urged to adopt as policy, the
proposition that Local Development Orders are presumptively valid
and that the Appellee/Petitioner, Florida Department of Community
Affairs must carry the burden of proof in all appeals of Local
Development Orders.
This would require not only the duty to
produce evidence at the beginning of the proceeding in order to
make or meet a prima facie case, but, in fact, the ultimate duty
of establishing that the action by local government in issuing
the Local Development Order was not "fairly debatable".
PASSED AND UNANIMOUSLY ADOPTED by the Board of County
Commissioners of Monroe County at their regularly scheduled
meeting on the 21st of
Februa~::19~~~~
CHAIRMAN - Michael H. Puto
ATTEST. ~
~HLAGE' CL~
cc: Governor and Cabinet
Tom Pelham, DCA
TO """"
UFFICIDC'f.