STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAS KWIK, INC., a Florida )

Corporation, )

)

Petitioner, )

) CASE NO. 89-3438

vs. )

)

PINELLAS PLANNING COUNCIL, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on November 9, 1989, in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keith W. Bricklemyer, Esquire

777 South Harbour Island Boulevard Suite 350

Tampa, FL 33602

For Respondent: James L. Bennett, Esquire

Assistant County Attorney

315 Court Street Clearwater, FL 34616

STATEMENT OF THE ISSUES

The issues in this case are:

1. Whether a Residential Office (RO) designation for

   the thirty acre parcel at the southeast corner of McMullen-Booth and Curlew Roads, which is owned by Gas Kwik (Petitioner), is consistent with the Countywide Comprehensive Plan for Pinellas County (Countywide Plan); or

   
   

2. Whether a split designation of RO for the northern nine acres with Low Density Residential (LDR) for the southern twenty-one acres of the subject parcel, as recommended by the Pinellas Planning Council (PPC), is consistent with the Countywide Plan and supported by competent substantial evidence, and

   
   

3. Whether the PPC is authorized to initiate this

split designation amendment rather than limiting its review and recommendation to the RO designation which was approved by the City of Safety Harbor (City), and forwarded to the PPC by the City as a proposed amendment to the Countywide Plan.

PRELIMINARY STATEMENT

At the hearing, the Petitioner called David

Gildersleeve, who was accepted as an expert in land use planning, Tony Wiles, an expert in land use planning and comprehensive planning, and Ted Lincks, who was accepted as an expert in transportation engineering and planning, band also called three fact witnesses. The PPC called Hubert Pascoe, who was accepted as an expert in long range transportation planning for the Metropolitan Planning Organization, and David Healey, an expert in land use and municipal planning, as well as two fact witnesses.

The Petitioner introduced five exhibits, the PPC

introduced ten exhibits, and four joint exhibits were received in evidence. Numerous stipulated exhibits were also received, and a formal listing of admitted and stipulated exhibits was filed on December 4, 1989.

The transcript of the final hearing was filed on

December 6, 1989. On December 22, 1989, the PPC filed a Motion to Supplement and Reopen Record based upon certain amendments to the Rules Concerning the Administration of the Countywide Future Land Use Plan. After briefing by the parties and having heard argument on January 18, 1990, the PPC's Motion was granted by Order entered January 19, 1990, and thereafter, the parties were given an opportunity to supplement the record to address the Amended Rules by filing additional written evidence on or before February 1, 1990. The parties were allowed to file their proposed recommended orders, including proposed findings of fact, on or before February 8, 1990, and a ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner owns a thirty acre parcel of

   property located in the City of Safety Harbor, Pinellas County, Florida, which is the subject of the proposed land use change at issue in this case.

   
   

2. The PPC is the countywide land planning agency charged with development and implementation of the Countywide

   Plan. As it relates to this case, it is responsible for review of the proposed amendment to the Countywide Plan concerning Petitioner's parcel, and for recommending action on that amendment to the Board of County Commissioners.

   
   

3. The City of Safety Harbor (City) received the Petitioner's application for a redesignation of the subject property from Suburban Low Density Residential (SLDR) to Residential/Office/Retail (ROR), and after review it approved an amendment to the City's land use plan map on March 6, 1989, which redesignated Petitioner's property to Residential/Office (RO). Thereafter, the City requested an amendment to the Countywide Plan to change the designation of the subject property to RO.

   After review, the PPC recommended denial of the City's request, and further, recommended an alternative split designation of Residential/Office - Low Density Residential (RO/LDR). Neither the City nor the Petitioner have agreed to the PPC's compromise alternative. The Petitioner timely filed its request for a hearing on the PPC's denial of the City's request, and its recommendation of the split alternative. The City did not seek to become a party to this action, but as the owner of the property in question, the Petitioner is substantially affected by the PPC's action, and its right to maintain this action without the participation of the City is not at issue.

   
   

   Location and Characteristics of the Property

   
   

4. The subject property is located at the northwestern boundary of the City, bordered on the north by unincorporated Pinellas County, on the west by the City of Clearwater, and on the east, across the Lake Tarpon Outfall Canal, by the City of Oldsmar.

   
   

5. The property lies at the intersection of McMullen-

   Booth and Curlew Roads, both of which are designated scenic, non- commercial corridors, although where it abuts the subject property Curlew Road is not so designated. The City does not recognize this portion of McMullen-Booth Road within its jurisdiction as a scenic, non-commercial corridor.

   
   

6. Across Curlew Road to the north of the Petitioner's parcel is a vacant tract of about 7.5 acres in unincorporated Pinellas County that is currently designated SLDR, which allows

   2.5 units per acre. The adjoining property to the south is also a vacant parcel in unincorporated Pinellas County, with a designation of SLDR, and is approximately 30 acres in size. Further to the south, is Mease Countryside Hospital and related office and health care facilities. Across the Lake Tarpon Outfall Canal to the east is a low density residential mobile home park in the City of Oldsmar with a land use designation that allows 7.5 units per acre. A residential subdivision in which one lot abuts the subject property is located to the southeast. Across McMullen-Booth Road to the west in the City of Clearwater are a single family residential area and nursing home, with land use designations which allow from 1 to 5 units per acre.

   
   

7. Mease Countryside Hospital, and associated offices,

   are appropriately located along McMullen-Booth Road to the south of the subject property since this location is consistent with the relevant portion of the Countywide Plan that states, "Hospitals should continue to be built adjacent to freely moving traffic corridors so that they are conveniently accessible to emergency and private vehicular traffic." The siting of the nursing home to the west of the Petitioner's parcel, across McMullen-Booth Road, is consistent with those portions of the Countywide Plan which provide, "Nursing homes should be built near community hospitals whenever possible in order to encourage inter-institutional activities", and which encourage prospective builders of nursing homes to locate such facilities in residential settings.

8. There is a clear potential for a substantial impact

   on surrounding jurisdictions from the development of the subject property. Approval of the proposed RO designation, with its allowable density of 15 units per acre, can reasonably be expected to result in pressure to redesignate the vacant parcel located to the immediate south of the subject property from its current SLDR designation, allowing 2.5 units per acre, to the higher density allowable under RO, which is, in fact, the highest density allowed in the unincorporated county. Concerns of other jurisdictions must be considered under the Countywide Plan, which sets forth the following guidelines for intergovernmental coordination:

   
   

   Evaluate the potential impacts proposed programs and activities may have on adjacent government entities before actively pursuing implementation. Consider the programs and activities of surrounding jurisdictions before making decisions which may have multi-jurisdictional affects.

   
   

9. The subject property is vacant and consists of approximately thirty acres. Its current designation is SLDR, which allows up to 2.5 units per acre. This current designation is consistent with surrounding residential uses.

   
   

10. The Possum Branch Creek drainageway traverses the property in an approximately east to west direction, with approximately nine acres lying to the north and twenty-one acres to the south. The original channel was meandering, but currently it is a straight line with a spoil bank on the north side. This is a channelized, natural drainageway which is classified as a major drainageway under the Drainage Element of the Countywide Plan, which includes the policy of restoring drainageways to their natural course whenever possible.

    
    

11. Significant portions of the southern twenty-one acres of this parcel lie within the 100 year flood plain.

    Residential land use designations in the Countywide Plan provide that densities of greater than five units per acre are inappropriate for areas with significant environmental constraints, such as areas within the 100 year flood plain.

    While development in a flood plain is not prohibited, relevant portions of the Plan specifically list both SLDR and LDR, which allow densities of from 2.5 to 5 units per acre, as appropriate for flood zone restricted property.

    
    

12. The southern portion of the property includes a portion of a five acre eagle protection area which extends to the south and southeast beyond the Petitioner's property, and which separates this property from the existing residential subdivision to the southeast and vacant property to the immediate south. It extends into the vacant parcel to the south The Eagle's continued use of this area is uncertain. Because the Countywide Plan allows for the transfer of development density out of this eagle protection area, the existence and location of this area does not favor any particular pattern of development on the

    subject property. The predominate vegetation on the parcel consists of oak trees located in the right-of-way of McMullen- Booth Road in the southwest corner of the site.

    
    

    Scenic Non-Commercial Corridor

    
    

13. The purpose and intent of the scenic, non- commercial corridor policy in the Countywide Pan is to protect

    the corridor's traffic carrying capacity, to limit adjacent non- residential uses, and to encourage the scenic and natural qualities along the corridors. It is a policy of long-standing application, originally adopted in 1977, and covers six such corridors, including McMullen-Booth Road. Stability and control of land uses along such corridor is a significant component of transportation planning for the corridor.

    
    

14. Commercial uses allowed under the RO land use designation are not permitted within 500 feet of the right-of-way of a designated scenic, non-commercial corridor, unless approved by plan amendment or recognized on the Future Land Use Plan. No dwelling units may be located within 350 feet of the scenic, non- commercial corridor right-of-way.

    
    

15. Two parcels with an RO designation exist south of

    the Mease Hospital, but each of these were authorized while the PPC lacked authority to apply the scenic, non-commercial corridor policy and before the effective date of the Countywide Plan.

    Under the Countywide Plan, there have been no deviations from the protection of the scenic, non-commercial corridor policy along McMullen-Booth Road, and in several specific instances the PPC has, without exception, refused to recommend approval of amendments which would have been inconsistent with that policy.

    
    

16. While there are instances of multi-family, office and commercial development along McMullen-Booth Road, the land

    use designations along this scenic, non-commercial corridor are predominantly residential intermixed with vacant parcels, particularly north from the intersection of State Road 580 with McMullen-Booth to Curlew Road where there is a total of only 12 to 15 acres of office uses and these offices are associated with Mease Hospital. Petitioner's proposed RO amendment would more than double the number of acres on this portion of the corridor presently designated for office use. The predominant land use along McMullen-Booth north of Curlew Road to State Road 584 is also residential intermixed with vacant parcels.

    
    

17. The non-residential intensity level established as appropriate for preserving the traffic carrying capacity along the scenic, non-commercial corridor is similar to the LDR density of 5 units per acre. However, the RO designation sought by the Petitioner allows densities of 15 units per acre, and therefore, this scale of potential non-residential use would be inconsistent with the pattern of development along this portion of the McMullen-Booth corridor from State Roads 580 to 584, and with the Countywide Plan which states, "Land planning should

    weigh heavily the established character predominately developed in areas where changes of use or intensity of development is contemplated.

    
    

18. It is the position of the Petitioner that the subject property falls within a commercial node, or commercial intersection, which should be excepted from the scenic, non- commercial corridor policy. However, that policy does not

    specifically include an exception for "commercial nodes", and in fact such commercial nodes were not shown to exist between State Roads 580 and 584 on McMullen-Booth.

    
    

19. There is a nodal exception policy in the housing element of the Countywide Plan which provides that higher density residential areas should be located in proximity with commercial nodes, and in areas immediately served by arterial streets and mass transit. The scenic, non-commercial policy, in contrast, encourages low density residential development and discourages mass transit. In fact, the area surrounding the subject property is not planned to receive mass transit service. The intersection of Curlew and McMullen-Booth Roads is significantly different from commercial nodes recognized in the MPO long range plan where large areas of high density residential development are concentrated, such as at the intersection of State Roads 584 and 580, and at the intersection of State Roads 586 and 584. Unlike other nodes, the subject property has only one limited access point onto McMullen-Booth, and no access onto Curlew.

    
    

20. It is also the position of Petitioner that there

    would be minimum impacts resulting from an RO designation on the year 2010 Plan levels of service along this corridor. However, this is based upon the unrealistic assumption that such designation of this parcel would not result in a proliferation of similar higher density redesignations for the vacant thirty acre parcel to the south, as well as for other vacant parcels along the corridor. Such a proliferation would result in the elimination of any visual relief and any scenic transition along McMullen-Booth Road.

    
    

    Traffic Considerations

    
    

21. Curlew Road (State Road 586) is presently a two- lane road in the vicinity of the subject property, while McMullen-Booth is a four-lane divided road adjacent to the

    property. In the MPO Year 2010 Plan, Curlew Road is designated as a six-lane divided roadway, and McMullen-Booth is designated as a four-lane divided facility. Portions of McMullen-Booth south of State Road 580 are designated for six-laning. The right-of-way design for the intersection of McMullen-Booth and Curlew Roads abutting the subject property has been designed to accommodate an elevated six-lane urban interchange, and pavement width of McMullen-Booth at this intersection is sufficient to allow it to be striped as a six-lane divided roadway at some, undetermined time in the future. While these roadway

    improvements have been budgeted for construction through 1992-93, no assurance of funding was shown, and therefore, these improvements are considered to be planned, but not committed.

22. According to David Healey, who was accepted as an expert in land use and municipal planning, approval of the RO designation sought by the Petitioner will result in a 750% increase in projected vehicle trips per day over what would result from the present designation of this property as SLDR upon which these roadway improvements were planned. According to Hubert Pascoe, who was called by the PPC arid was accepted as an expert in MPO planning, Petitioner's request would generate approximately 250% more vehicle trips per day than the alternative split designation recommended by the PPC. Nevertheless, under either proposal the levels of service for these adjacent roadways would remain acceptable under the MPO Year 2010 Plan, and while an RO designation would intensify use and lower service levels somewhat, it would not create an unacceptable level of service.

    
    

23. However, the impact of an RO designation on existing traffic and upon these adjacent roadways as they

    presently exist would be substantial, and is reasonably estimated to result in as much as a 30% increase in existing traffic. The Countywide Plan specifies that the "scale of (any) proposed land use development should be compatible with the capacity of existing supporting facilities, such as roads and facilities." While roadway improvements are planned, as found above, the substantial impact on existing facilities of this RO designation, without those improvements in place, would threaten continued acceptable service levels for these unimproved, existing facilities, and would perpetuate a pattern of development preceding essential facility improvements which results in unacceptable levels of service for existing facilities until planned improvements can catch up with such growth.

    
    

24. The designation of McMullen-Booth as a scenic,

    non-commercial corridor, with resulting limitations on commercial and high density development, has significantly influenced the transportation planning that has taken place with regard to this corridor, and the identification of appropriate roadway improvements, specified above. The present SLDR designation of this parcel is consistent with the low intensity transportation planning assumptions considered under the Countywide Plan.

    Significant changes in adjoining land uses, such as redesignating vacant parcels from SLDR to RO, would result in significant changes in projected impacts and render such planning less meaningful and relevant. The RO designation sought by the Petitioner is inconsistent with basic assumptions used in the identification of projected traffic impacts that lead to the development of proposed roadway improvements which both parties acknowledge and contend will be sufficient to handle expected traffic volumes. It is unrealistic since it ignores the basic fact that these anticipated improvements are premised upon the continued viability of this scenic, non-commercial corridor which excludes high density, commercial development. The Countywide Plan states that, "The transportation system should not dictate the form and future development pattern but should be a supporting service system for the area's development plan." The transportation system can only function as a "supporting service

    system" when the area's development plan remains consistent, and when long standing policies, such as a scenic, non-commercial corridor, are not abandoned on a piecemeal basis.

    
    

25. The fact that Mease Hospital is appropriately

    located along the McMullen-Booth corridor, south of the subject property, is not a basis on which this RO designation should be approved. Such a designation would contribute to an increase in the traffic burden on the McMullen-Booth corridor, especially when the potential for additional RO amendments based upon this redesignation is considered, and this could reasonably be expected to result in the elimination of this as a "freely moving traffic corridor" upon which the hospital siting was based.

    
    

26. There is limited accessibility to the subject property with only northbound traffic on McMullen-Booth Road

    having direct access to the site. All other traffic is required to go through the McMullen-Booth and Curlew Road intersection and make a left hand turn from McMullen-Booth southbound across northbound traffic onto the site. Given this very limited access, an RO designation, with its densities up to a maximum of

    15 units per acre, is inappropriate. The fact that this parcel has limited accessibility was a significant factor in the transportation planning process.

    
    

27. The Petitioner's analysis is based upon the unrealistic assumption that other land use changes would not

    occur on these adjacent roadways between the present and the year 2010, even if an RO designation is approved for this parcel. The reasonable likelihood that the owners of similar parcels along McMullen-Booth Road will seek higher densities for their properties, if this RO designation is approved, must be considered in any meaningful analysis.

    
    

    Development Potential

    
    

28. Petitioner does not allege that the current SLDR designation of the subject property is confiscatory. Evidence offered by Petitioner that it has been unable to market this property for low density residential development was neither competent nor substantial. Additionally, the extent and diligence of these marketing efforts is suspect since Petitioner purchased this property for the purpose of high density, commercial and office development, despite its low density residential designation, as well as that of parcels to the south and east, and also since Petitioner remains primarily interested in office and high density development.

    
    

29. According to the Petitioner, an RO designation

    would serve as an appropriate buffer, or step-down, between the existing low density mobile home park, residential area, and vacant SLDR parcel to the east, southeast and south, respectively, and the high intensity activity intersection of McMullen-Booth and Curlew Roads to the north. However, the pertinent provision in the Countywide Plan provides that "development patterns should recognize and support coherent neighborhoods. Neighborhoods should be insulated wherever

    possible from disruptive land uses and nuisances." Placing an RO designation on the subject property lying to the north and west of residential parcels would not serve as a buffer for those residential parcels designated SLDR, nor would it insulate them from potential commercial and office development which would then be authorized for the subject property. While RO is recognized in the Countywide Plan as an appropriate buffer between major traffic corridors and LDR (5 units per acre), it is not recognized to be an appropriate buffer between such high intensity activity areas and SLDR (2.5 units per acre).

    
    

30. The fact that there is a fully developed and apparently successful, low density, residential subdivision to the west of the southern portion of the Petitioner's parcel, across McMullen-Booth Road, conclusively establishes that this area is appropriate for residential development. Additionally, to the west of the northern portion of the subject property, across McMullen-Booth, is a nursing home. While there was evidence that residents in the subdivision have blocked some access roads into their subdivision to limit traffic on

    residential streets entering the subdivision from McMullen-Booth, there was no competent substantial evidence to establish that residents have been selling their homes at below market value in order to leave the subdivision, whether the rate of home sales has been increasing, or that noise levels resulting from traffic along McMullen-Booth for residents of the subdivision or the nursing home are unacceptably high. The Countywide Plan requires site planning regulations which protect residential development from such noise concerns by providing buffers along arterial roadways, including berms, walls, or woody vegetation. The open space set-back requirement of the scenic, non-commercial corridor policy is well suited for use as a buffer.

    
    

    Most Appropriate Designation: RO vs. RO/LDR

    
    

31. The Petitioner seeks approval from the Board of County Commissioners of the City's action redesignating the subject 30 acre parcel from SLDR (2.5 units per acre) to RO (15

    units per acre). The PPC has recommended a split designation of RO on the northern 9 acres and LDR (5 units per acre) on the southern 21 acres of Petitioner's property.

    
    

32. The split designation provides an appropriate buffer between low density residential development and vacant

    parcels to the east and south, as well as projected high volume traffic at the intersection of Curlew and McMullen-Booth Roads. The southern 21 acres of the property would provide an appropriate transition density of 5 units per acre from the 2.5 units per acre to the south, and the 15 units per acre which would be allowed in the northern RO portion of the subject property adjacent to the roadway interchange. Traffic volumes at the interchange do not justify redesignating the entire parcel RO, since this would ignore, and be inconsistent with, the Countywide Plan policy of buffering low density residential areas designated SLDR.

33. The use of Possum Creek Branch drainageway to

    separate the RO and LDR designations on the subject property, as recommended by the PPC, is logical and consistent with the depth of other non-residential designations along Curlew Road, as well as with prior actions by the PPC in recognition of an interchange influence area. The RO designation sought by Petitioner is inconsistent with the fact that the southern 21 acres of this parcel lie within the 100 year flood plain where low density development under SLDR or LDR is allowed, as recommended under the PPC's split designation.

    
    

34. The scale of allowable development under an RO designation of up to 15 units per acre is not consistent with the pattern of development along the McMullen-Booth scenic, non- commercial corridor, north of State Road 580 through the Curlew Road intersection to State Road 584, or with Countywide Plan policies which seek to protect existing development patterns.

    The split designation recommended by the PPC does provide for consistency with existing patterns of development along adjacent portions of McMullen-Booth. The LDR designation on the southern

    21 acres of the subject property aligns with the residential subdivision to the west, across McMullen-Booth Road, and is consistent with residential densities in that subdivision, as well as densities to the east and southeast.

    
    

35. The subject property's existing SLDR designation

    is consistent with surrounding residential uses, with concerns for intergovernmental coordination expressed in the Countywide Plan, and with the low intensity assumptions used for transportation planning. The PPC's split designation balances these concerns for intergovernmental impacts with the Petitioner's stated desire for high density development. An LDR designation for the southern 21 acres of this parcel will provide for a viable opportunity for development, consistent with other residential developments to the west, southeast and east, and with sound planning principles.

    
    

36. The RO designation sought by Petitioner would result in unplanned, contiguous uses along McMullen-Booth and

    Curlew Roads which would be inconsistent with basic assumptions that have gone into planned improvements to these roadways.

    Stability and control of land uses along the adjoining scenic, non-commercial corridor is a significant aspect of transportation planning for the McMullen-Booth Road corridor, which is premised upon low density residential development. Petitioner's traffic projections, concluding that land use changes associated with an RO designation would have no significant impact on the functional capacity of these adjacent roadways and planned interchange improvements, were not based upon competent substantial evidence, and were conclusively rebutted by evidence of adverse, cumulative, unplanned impacts presented by the PPC.

    
    

37. Due to this parcel's limited accessibility, an RO designation for the entire site is inappropriate because it will result in significant adverse impacts on the traffic carrying capacity of the adjacent scenic, non-commercial corridor. The PPC's split designation retains significant low density

    residential acreage, which is consistent with limited access points and protection of the corridor's traffic carrying capacity.

    
    

38. The split designation recommended by the PPC is consistent with the scenic, non-commercial corridor policies of the Countywide Plan since it will prevent the proliferation of high density development, maintain visual relief and scenic transition along McMullen-Booth Road north from Mease Hospital, and limit non-residential development along the corridor.

    
    

39. The development of 30 acres under an RO designation at this intersection would represent an isolated nodal increase in intensity which would be inconsistent with

    development along this portion of the McMullen-Booth corridor, and would occur without any plans to provide mass transit services to this area. Thus, this would be inconsistent with the nodal exception policy adopted by the PPC which identifies community nodes as areas immediately served by arterial streets and mass transit. The PPC split designation does allow limited intensification of development on the northern 9 acres of the subject property immediately adjacent to the McMullen-Booth and Curlew Road intersection, thereby recognizing a reasonable extent of impact from intersection traffic and improvements. This is a reasonable approach, consistent with the Countywide Plan.

    
    

40. Approval of the Petitioner's request for RO designation of this entire 30 acre parcel would be inconsistent with prior decisions of the PPC under the scenic, non-commercial corridor policy. The split RO/LDR designation is a reasonable

    compromise of competing interests and policies, and is consistent with pertinent portions of the Countywide Plan.

    
    

    CONCLUSIONS OF LAW

    
    

41. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 10(4), Chapter 88-464, Laws of Florida, amending Chapter 73-594, Laws of Florida, as amended.

    
    

42. In pertinent part, Section 10(4), Chapter 88-464, Laws of Florida, provides:

    
    

    1. Amendments to the adopted countywide future land use plan relating to a land use designation for a particular parcel of property may be initiated

       only by a local government that has jurisdiction over the subject property. . . . All amendments

       initiated by a local government shall be transmitted to the board of county commissioners with a recommendation by the council. . . . A recommendation shall be received by the board of county commissioners prior to its taking action on an amendment.

       (b). . . The council may act on the proposed amendment or may may seek a compromise with the requesting local government.

       (c) If the council recommends denial of a proposed

       amendment to the countywide future land use plan relating to a change in a land use designation for a particular parcel . . . any substantially affected person may seek a hearing pursuant to chapter 120, Florida Statutes. Any substantially affected person may participate in the hearing. At the conclusion of the hearing, the hearing officer's findings shall

       be forwarded to the board of county commissioners for a final hearing. The basis for the board of county commissioners' approval or denial, of the proposed amendment is limited to the findings of the hearing officer.

       (e) The council may contract with the Department of Administration to provide the hearing officers

       required by this act. . .

       
       

43. In this case, the Petitioner originally applied to the City of Safety Harbor for a redesignation of the subject property from SLDR to ROR. After review, the City approved an RO designation which was thereupon forwarded to the PPC for review and recommendation to the Board of County Commissioners. During its review of the City's approval of the RO designation for this parcel, the PPC determined that it would recommend denial of this RO designation, and the Petitioner, as the substantially affected land owner, timely sought this evidentiary hearing which was conducted pursuant to Chapter 120, Florida Statutes. Additionally, in an effort to explore and offer an appropriate compromise to the Petitioner and the City, the PPC developed a recommendation for a split RO/LDR designation for the subject property. Since the PPC has no authority to initiate any change in the land use designation for a particular parcel, but may only "seek a compromise with the requesting local government", the split designation cannot be imposed upon the Petitioner or the City without their approval, even if it is found to be consistent with the Countywide Plan and the RO designation is not. Under that circumstance, the current SLDR designation would remain in effect for this parcel since its consistency with `the Countywide Plan is not at issue, and since there is no competent substantial evidence in the record of this case which would call into question this current designation.

    
    

44. Nevertheless, this Recommended Order will address the PPC's recommendation for a split designation, even though it cannot be imposed upon the City or the Petitioner, since the PPC's authority to seek compromise is not limited to any particular stage in the proceeding, and the possibility of compromise is not forestalled at any time prior to action by the Board of County Commissioners. It is, therefore, appropriate for this Hearing Officer to review and enter findings not only upon the RO designation approved by the City, but also the PPC's split designation alternative since the PPC's recommendation, and the basis thereof, is a part of the record in this case, and since such findings may assist in arriving at compromise and settlement, which is always to be encouraged.

    
    

45. All local government comprehensive plans and land development regulations must be consistent with the Countywide

    Plan adopted by the Board of County Commissioners. Section 10(3)(b), Chapter 88-464. In determining consistency, conflicting goals and policies must be balanced in a flexible approach which may involve selecting between competing goals and policies. However, such determinations must be made in a manner which carries out the legislatively expressed purpose and intent for the creation of the PPC as a means of recognizing the interdependence of persons residing in Pinellas County, and for arriving at orderly, coordinated and consistent future growth in the County. Section 2, Chapter 88-464.

    
    

46. In a situation such as is presented in this case where the development proposal is for a more intensive use than that allowed by an existing comprehensive plan, "strict scrutiny" to the development must be given in the determination of consistency, rather than the lesser review contemplated by the "fairly debatable" standard. Southwest Ranches Homeowners Assoc.

    v. County of Broward, 502 So.2d 931, 939 (Fla. 4th DCA 1987); Norwood-Norland Homeowners Assn. v. Dade County, 511 So.2d 1009, 1012 (Fla. 3rd DCA 1987); City of Jacksonville Beach v. Grubbs,

    461 So.2d 160, 163 (Fla. 1st DCA 1985). See also Section 2.04, Chapter 88-458, Laws of Florida, amending the County Charter to authorize the County to act as the Countywide Planning Authority, and providing that in the event of a conflict between a countywide planning authority ordinance and a municipal ordinance, the county ordinance prevails, except under facts inapplicable to this case where the municipal ordinance provides for a less intense or lesser density land use within the municipality than that provided in the county ordinance.

    
    

47. Petitioner urges that the RO designation approved by the City of Safety Harbor carries with it a presumption of correctness, and that upon review of the City's approved designation, it should be recommended for approval unless it is shown by a preponderance of evidence to be inconsistent with the Countywide Plan. The PPC urges that the City's RO designation carries no such presumption, and that both the City's designation as well as its proposed split designation are subject to strict scrutiny for consistency with the Countywide Plan since each alternative would result in greater intensity and densities than under the current SLDR designation of the subject property.

    
    

48. The Petitioner's argument ignores the fact that the City's designation is not dispositive or final since it cannot be effectuated without review by the PPC and approval by the Board of County Commissioners. The City, designated as the initiator of this amendment by Section 10(4)(a), Chapter 88-464, may participate, along with substantially affected parties, in any hearing which is held pursuant to Chapter 120 upon a recommendation of denial by the PPC. As such, the City and substantially affected parties participate as equal parties with the PPC, without any presumption of correctness for the PPC recommendation or the City's non-final approval.

    
    

49. Nothing in Chapter 88-464, or in any cases cited by the parties that are applicable to the facts of this case establishes that the City's action must be presumed correct for purposes of

    this proceeding, especially where, as here, the City chose not to participate or to explicate the reasons for its action on the record, or that the City's action and the PPC's recommendation are to be reviewed only under the "fairly debatable" test, which would be more properly applicable, in any event, to the final action of the Board of County Commissioners in this matter in the interpretation of its own Countywide Plan, rather than to the recommendation or position of any party in this de novo hearing with regard to the consistency of this proposed land use redesignation with the Countywide Plan. Compare, Manatee County

    v. Estech Chemicals Corporation, 402 So.2d 1251, 1256 (Fla. 2nd DCA 1981); Metropolitan Dade County v. Fletcher, 311 So.2d 738, 739 (Fla. 3rd DCA 1975).

    
    

50. A preponderance of competent substantial evidence adduced at hearing establishes the City's RO designation of the Petitioner's property is not consistent with the Countywide Plan when compared, under "strict scrutiny", with the goals and policies of the Plan. Such a designation can reasonably be expected to result in pressure to redesignate the vacant parcels located in the unincorporated county immediately south and north of the subject property from SLDR to RO, and thus, the RO designation will likely impact adjacent jurisdictions by resulting in the highest density allowed in the unincorporated county. While the current SLDR designation of this property is consistent with surrounding residential uses and the fact that a significant portion of this parcel lies in a flood zone restricted area, the RO designation is not. Under the facts of this case such a redesignation would be inconsistent with the uniformly applied policy to protect scenic, non-commercial corridors because it would result in a proliferation of similar high density redesignations that would eliminate any visual relief and scenic transition along the McMullen-Booth corridor, and would substantially increase the intensity of uses along this corridor, thereby resulting in unanticipated and unplanned for adverse impacts on the traffic carrying capacity of this roadway in its existing condition.

    
    

51. It was not established that a "commercial node" exception to the scenic, non-commercial corridor policy is applicable to the facts of this case, as was urged by the Petitioner, since the area surrounding the subject property is not planned to receive mass transit service, an essential element of the nodal exception policy. Limited access to the Petitioner's parcel also is inconsistent with an RO designation. It was not shown that an RO designation is necessary in order for Petitioner to make reasonable use of this property since there are existing low density residential areas immediately adjoining, and across McMullen-Booth Road from the subject property.

    
    

52. The PPC's alternative split RO/LDR designation provides for more intensive development of the subject parcel than is allowed under the current SLDR designation. However, a preponderance of competent substantial evidence in the record establishes that when competing goals and objectives of the Countywide Plan are balanced, the conclusion can be drawn that this alternative is consistent with that Plan, and with the

    policies establishing scenic, non-commercial corridors. It provides an appropriate buffer between low density residential development and vacant parcels to the south and southeast, as well as projected high volume traffic at the intersection of Curlew and McMullen-Booth Roads. Possum Creek Branch drainageway provides a natural and appropriate separation between RO and LDR designations recommended by the PPC. The split designation provides for an RO designation on 9 acres abutting Curlew Road which is consistent with the depth of other non-residential designations along that roadway and with prior PPC actions, and an LDR designation in the 100 year flood plain on the southern portion of the parcel.

    
    

53. The split designation provides an appropriate balance between concerns for intergovernmental impacts and with Petitioner's desire for high density development. It is consistent with the existing and projected traffic carrying capacity of adjacent roadways, and with the fact of limited access to the subject property. The existence of the eagle protection area on a portion of this parcel does not favor any particular pattern of development since the Countywide Plan allows for a transfer of development density out of this protection area to the remainder of the subject property.

    
    

54. The PPC's split designation alternative is a reasonable compromise of competing interests and policies, and is consistent with pertinent portions of the Countywide Plan. As discussed above, however, the PPC recommendation cannot be imposed upon the City and the Petitioner through adoption by the Board of County Commissioners, without their concurrence.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Pinellas County Board of County Commissioners enter a Final Order disapproving an RO designation for Petitioner's subject property, and approving, as a compromise, the PPC's split designation of RO/LDR, subject to the Petitioner and the City of Safety Harbor affirmatively joining in said compromise.

DONE AND ENTERED this 27th day of February, 1990, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings

this 27th day of February, 1990.

APPENDIX

(DOAH CASE NO. 89-3438)

Rulings on the Petitioner's Proposed Findings of Fact:

1. Adopted in Finding 1. 2-4. Adopted in Finding 3.

5. Adopted in Finding 2. 6-7. Adopted in Finding 3.

8-9. Adopted in Findings 6 and 7.

10-11. Adopted in Finding 12.

12-13. Adopted in Finding 6.

1. Adopted in Findings 5, 7, 10, 12.

2. Rejected in Findings 8, 27, 35.

3. Adopted in Findings 6, 21.

4. Rejected in Findings 6, 30, and otherwise not based on competent substantial evidence.

5. Rejected in Finding 12.

6. Rejected in Findings 32-40, and otherwise as speculative.

20-23. Rejected as immaterial and unnecessary. 24-25. Adopted in Finding 21.

26. Rejected as immaterial and unnecessary. 27-29. Adopted in Finding 21.

30-31. Rejected as unnecessary.

32. Adopted in Finding 22. 33-37. Rejected as unnecessary.

1. Adopted in Finding 22.

2. Rejected in Findings 24, 26, and otherwise not based on competent substantial evidence.

3. Rejected as irrelevant and as simply a summation

   of testimony rather than a proposed finding of fact.

4. Rejected in Findings 24 and 26.

42--43. Rejected as irrelevant and immaterial. 44-45. Rejected in Finding 10.

46-47. Rejected as irrelevant and immaterial.

48. Adopted in Finding 11.

49-50. Rejected as speculative and not based on competent substantial evidence.

51-53. Rejected as irrelevant and immaterial.

1. Rejected in Finding 19.

2. Rejected in Findings 13-20, and 40.

3. Rejected in Finding 16, and otherwise as irrelevant.

4. Adopted in Finding 8.

5. Rejected in Finding 16, and otherwise as irrelevant.

6. Rejected in Findings 18, 19, 39.

7. Adopted in Finding 14.

8. Rejected as irrelevant and not based on competent substantial evidence.

9. Rejected in Findings 16, 18, 19, 39.

10. Adopted in Findings 33 and 39.

64-67. Rejected in Findings 13, 16, 18, 19, 34, 37-40.

1. Adopted and Rejected in part in Findings 3, 33, 38-40.

2. Rejected in Findings 18, 19 and 39.

3. Adopted in Finding 13.

4. Rejected as irrelevant and immaterial

5. Rejected in Findings 18, 19 and 39.

6. Adopted in Finding 14, but otherwise Rejected as speculative and immaterial.

7. Adopted in Findings 17 and 24. 75-78. Rejected as immaterial.

1. Rejected as irrelevant and immaterial.

2. Rejected in Findings 18 and 19.

3. Rejected in Finding 8, and otherwise as irrelevant and immaterial.

4. Adopted in Finding 14.

5. Rejected as irrelevant and immaterial.

6. Adopted in Finding 5.

7. Rejected as irrelevant and immaterial, and as not based on competent substantial evidence.

8. Adopted in Finding 28.

87-88. Rejected in Findings 28 and 30.

89-90. Rejected as irrelevant and immaterial.

1. Rejected as not based on competent substantial evidence.

2. Rejected in Findings 28 and 30.

3. Adopted in Finding 30.

4. Rejected as not based on competent substantial evidence.

5. Rejected in Findings 18, 19 and 39.

6. Rejected in Finding 16 and otherwise as irrelevant and immaterial.

7. Rejected as not based on competent substantial evidence.

98-99. Rejected as speculative and immaterial.

1. Rejected in Finding 8.

2. Adopted in Finding 5, but Rejected in Finding 16.

3. Rejected in Finding 29.

4. Rejected as immaterial, irrelevant and contrary to competent substantial evidence.

5. Rejected in Findings 34-40 and otherwise as contrary to competent substantial evidence.

105-106. Rejected as unnecessary.

1. Rejected in Findings 32-40.

2. Rejected in Finding 29.

3. Rejected in Findings 32-40, and otherwise as unnecessary and immaterial.

4. Rejected in Finding 25, and as not based on competent substantial evidence.

111-112. Rejected in Findings 32-40.

113-165. Rejected in Findings 8, 9, 11, 12, 16-20, 22, 24-27,

29, 30 and 32-40, and otherwise as unnecessary, irrelevant, and needlessly cumulative and duplicative of previous proposed findings of fact.

Rulings on the PPC's Proposed Findings of Fact:

1. Adopted in Finding 2.

2. Adopted in Finding 1.

3. Adopted in Finding 4. 4-5. Adopted in Finding 8.

6. Adopted in Finding 5.

7-8. Adopted in Findings 11 and 33.

9-10. Adopted in Finding 10.

1. Rejected as unnecessary and immaterial.

2. Adopted in Finding 30.

49-50. Rejected as unnecessary and immaterial.

1. Adopted in Finding 22.

2. Adopted in Finding 23.

53-59. Adopted in Findings.24 and 36, but otherwise Rejected as cumulative and unnecessary.

1. Adopted in Finding 26.

2. Adopted in Finding 23.

3. Adopted in Finding 27.

4. Adopted in Finding 36.

5. Rejected as unclear in the use of the term "particular amendment".

6. Rejected as cumulative and unnecessary.

7. Adopted in Finding 35.

8. Adopted in Finding 39.

68-70. Adopted in Findings 13 and 16.

1. Adopted in Finding 17.

2. Adopted in Finding 20.

73-74. Adopted in Findings 21 and 23, but otherwise Rejected as cumulative and unnecessary.

75-76. Rejected as cumulative and unnecessary. 77-78. Adopted in Findings 37 and 40.

79-83. Rejected as cumulative and unnecessary. 84-85. Adopted in Finding 38.

86-87. Rejected as cumulative and unnecessary.

88-98. Adopted in Findings 18, 19 and 39, but otherwise Rejected as cumulative and unnecessary,

99-100. Adopted in Finding 40.

101-107. Rejected as cumulative and unnecessary.

COPIES FURNISHED:

James L. Bennett, Esquire Assistant County Attorney

315 Court Street Clearwater, FL 34616

Keith W. Bricklemyer, Esquire 777 South Harbour Island Blvd. Suite 350

Tampa, FL 33602

David P. Healey Executive Director

Pinellas Planning Council

440 Court Street Clearwater, FL 34616

Docket for Case No: 89-003438

Orders for Case No: 89-003438