Declaratory statements.

As the former legal director of 1000 Friends of Florida, I must respond to "The Evolution of Declaratory Statements" by Sid Ansbacher and Robert Downie (November). The authors accuse an organization that has been the watchdog for growth management policy in this state since 1986 of using the APA's provisions on declaratory statements to "tie parties in knots."

A more accurate reflection of the facts of the litigation addressed in the article do not support this wrongfully imputed motive, and dispute the authors' allegation that the 1000 Friends cases are a "paradigm of confusion." Notably, both authors appeared at times as counsel of record in the cases; if there is confusion they are as much to blame as anyone.

That being said, in reality, the authors are correct: Some "confusion" does exist over the use of the administrative remedy of declaratory statement in F.S. [section]120.565. However, this confusion is the result of two things totally out of the control of any of the litigants, i.e., the Fifth District Court's refusal to abate its appeal and follow the primary jurisdiction doctrine, and the Division of Administrative Hearings' refusal to hold a formal hearing on the petition for declaratory statement.

The source of the litigation involved 1000 Friends' legal opinion that St. Johns County should hold a public hearing and amend its comprehensive plan before getting paid by FDOT to run six miles of sewer lines to a rest stop beyond the urbanized area that had the capacity to serve 5,000 new homes.

The authors claim that 1000 Friends "simultaneously" filed claims in circuit court for declaratory judgment and before the Department of Community Affairs (DCA) for an administrative declaratory statement to address this issue. In actual fact, there was an eight-month hiatus between the filing of the administrative petition and the filing of the circuit court complaint, which does not support the author's allegation that the cases were filed "simultaneously" by 1000 Friends of Florida to "tie the parties in knots."

The source of the "confusion" on administrative declaratory statements certainly was not the result of any dilatory tactic of 1000 Friends "to have agencies protect collaterally against adverse circuit court proceedings." Rather, a correct conclusion drawn from a careful analysis of the case and a true explanation of the "evolution of declaratory statements" is that the administrative remedy of a declaratory statement is a power tool, which in the words of the Supreme Court,"may help parties avoid costly administrative litigation." This is an important victory for citizens to check the actions of government without having to go to court.

To conclude, the solution is not as the authors submit, for the legislature to "clarify the statute to prevent its use for forum shopping and inconsistent decision making," but for the legislature to compel the Division of Administrative Hearings to conduct a formal administrative hearing when third parties, such as the authors' clients, intervene in these types of administrative proceedings and raise factual disputes. 1000 Friends would also recommend that at the same time the legislature address the substantive issue in these cases and conclude that because decisions to run water and sewer lines affect growth, they must be addressed in a public hearing as an amendment to the comprehensive plan.

TERRELL K. ARLINE

Tallahassee