STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JANICE KELLY, )
)
Petitioner, )
)
vs. ) CASE NO. 90-3580GM
)
CITY OF COCOA BEACH and ) DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Respondents. )
) CAROLE C. POPE, )
)
Petitioner, )
)
vs. ) CASE NO. 90-3581GM
)
CITY OF COCOA BEACH and ) DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Respondents. )
)
RECOMMENDED ORDER OF DISMISSAL
The City of Cocoa Beach has requested that the petition of Carole C. Pope be dismissed on the ground that she lacks standing. A conference call was conducted on October 10, 1990, on the City's motion to dismiss. The parties were informed of this ruling by telephone on October 12, 1990.
According to her allegations, Ms. Pope owns land outside of the city limits of Cocoa Beach, but adjacent to a two-acre parcel within the city. Ms. Pope claims that the treatment of the two-acre parcel in the Cocoa Beach comprehensive plan results in adverse impact to her land and environmental degradation.
The Issue
Ms. Pope's standing is in dispute because she does not own property, reside, or own or operate a business within the City of Cocoa Beach.
Ms. Pope's petition is governed by Section 163.3184(9), Florida Statutes, which authorizes an "affected person" to commence a proceeding to challenge a plan or plan amendment that the Department of Community Affairs has found to be in compliance. An "affected person" "includes ... persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review ...." Section 163.3184(1)(a). 1/
The list of "affected persons" in Section 163.3184(1)(a) is not exhaustive. The word, "includes" suggests that the list is merely illustrative. 2/ Even so, the question remains what is meant by "affected."
Under a more expansive interpretation, "affected person" standing is conferred upon anyone who is in fact affected by a plan. The illustrative language of Section 163.3184(1)(a) merely designates certain classes of persons, who perhaps would not otherwise be recognized as "affected."
Under a more restrictive interpretation, the illustrative language exemplifies what the Legislature intended by the use of "affected." The illustrative language, although not exhaustive, denies standing to certain persons who are in fact affected by the plan.
Other Standing Provisions in the Act
In addition to authorizing challenges to comprehensive plans, Chapter 163, Part II (the Act) provides the means by which persons may challenge land development regulations, such as zoning regulations, and development orders, such as building permits or subdivision approvals. Different standing provisions govern challenges to land development regulations and development orders.
Challengers of land development regulations must be "substantially affected persons." Section 163.3213(1). A "substantially affected person' means a substantially affected person as provided [in] chapter 120 [Florida Statutes]."
Challengers of development orders must be "aggrieved or adversely affected parties." Section 163.3215(1). An
aggrieved or adversely affected party' means any person ... which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to ...
densities or intensities of development ... or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons.
Section 163.3215(2).
Zoning Case Law on Standing
The "affected person" and "aggrieved or adversely affected party" provisions in the Act are derived from Florida cases dealing with standing in zoning disputes. In Renard v. Dade County, 261 So.2d 832 (Fla. 1972), the court clarified the standing requirements for three types of zoning disputes: 1) the enforcement of a zoning ordinance; 2) the challenge to a validly enacted ordinance that is claimed not to be fairly debatable; and 3) the challenge to an invalidly enacted zoning ordinance (e.g., an ordinance enacted without proper notice). The Renard court's standards for standing in the second and third categories are almost identical to two of the standing provisions in the Act. 3/
To challenge a validly enacted zoning ordinance as not fairly debatable, the Renard court held that a person must show "a legally recognizable interest
... adversely affected by the proposed zoning action." Id. at 838. The court explained that an "aggrieved or adversely affected person" is a person with a
legally recognizable interest which is or will be affected by the action of the zoning authority in question. The interest may be shared in common with a number of other members of the community as where an entire neighborhood is affected, but not every resident and property owner of a municipality can, as a general rule, claim such an interest. An individual having standing must have a definite interest exceeding the general interest in community good share[d]
in common with all citizens. 261 So.2d at 837.
The Renard court listed the following factors to be considered when determining whether a person has standing to challenge a validly enacted zoning ordinance as not fairly debatable: the proximity of the challenger's property to the property to be rezoned, character of the neighborhood, and type of proposed change.
Subsequent decisions have followed the Renard "aggrieved or adversely affected person" standard in determining standing to challenge a validly enacted zoning ordinance as not fairly debatable. 4/
To challenge an invalidly enacted ordinance, the Renard court held that a person must be "any affected resident, citizen or property owner of the governmental unit in question ..." In one of the two cases cited by Renard, Rhodes v. City of Homestead, 248 So.2d 674 (Fla. 3rd DCA 1971), persons challenged the city's issuance of a special use permit without prior notice.
The trial court granted a motion to dismiss the complaint because the challengers did not allege any injury different from that suffered by the general public. Without describing the relationship of the challengers to the city, the court reversed, concluding that the ground cited in the motion has no application where a "person affected" challenges an allegedly illegal action of a city.
Subsequent decisions have followed the Renard "affected resident, citizen, or property owner" standard in determining standing to challenge an invalidly enacted zoning ordinance. 6/
Comprehensive Planning Case Law on Standing
Since the inception of local government comprehensive planning, courts have typically applied the above-described principles of zoning case law to challenges involving local government comprehensive plans. In Citizens Growth Management Coalition of West Palm Beach, Inc. v. City of West Palm Beach, Inc.,
450 So.2d 204, 206 (Fla. 1984), a coalition of residents, citizens, and taxpayers of the City of West Palm Beach challenged the validity of a rezoning ordinance that allowed the construction of a large complex of residential and commercial buildings in the city's downtown area. The complaint alleged that the ordinance was not enacted in conformity with the Local Government Comprehensive Planning Act of 1975.
The Citizens Growth Management court rejected the coalition's argument that none of the three Renard standing categories was applicable to the 1975 planning act, which, unlike the Act, lacked separate standing provisions. Because the 1975 planning act did not expressly address the standing question, the court found that the Legislature did not intend to alter the Renard standing tests.
Applying the "aggrieved or adversely affected person" standard, the court held that the challengers were not adversely affected and that the 1975 planning act created no legally recognizable interests that would be adversely affected if a rezoning ordinance were to fail to comply with the requirements of the 1975 planning act.
The court in Southwest Ranches Homeowners Association, Inc. v. County of Broward, 502 So.2d 931 (Fla. 4th DCA), rev. denied, 511 So.2d 999 (Fla. 1987) distinguished the Citizens Growth Management holding. The Southwest Ranches plaintiff challenged two zoning ordinances on the basis, among others, that they conflicted with the county's land use plan. Although the opinion does not indicate the relationship of the plaintiff or its members to Broward County, the court explained that the plaintiff had standing because:
the Southwest Ranches Homeowners Association has a more direct stake in this matter than would a group of concerned citizens and taxpayers with a general interest in preserving the environmental character of the area (i.e., the coalition in Citizens Growth Management). The Association is a group of property owners whose land adjoins the proposed development and stands to be directly affected by the alleged aspects of the development which are claimed to be inconsistent with the comprehensive plan; i.e., pollution, flooding, and deterioration of potable water supply. Therefore, we believe that the Association meets the general standing criteria of Citizens Growth Management. Moreover, a finding of standing here is in accord with the intent of the legislature as manifested by the recent addition of Section 163.3215, Florida Statutes (1985) to the statutory scheme.
This section liberalizes standing requirements and demonstrates a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action.
502 So.2d at 934-35.
In establishing legally recognizable interests, the Act is dissimilar to the 1975 planning act, which "impose[d] a legal duty upon the governing body but [did] not create a right of judicial redress in the citizens and residents of the community." Citizens Growth Management Coalition of West Palm Beach, Inc.
v. City of West Palm Beach, Inc., 450 So.2d 204, 208 (Fla. 1984). Sections 163.3184(9)(a), 163.3213(1), and 163.3215(1) clearly recognize a right of administrative or judicial redress in certain persons. 7/
Expansive vs. Restrictive Interpretation of the "Affected Person" Provision
Standing alone, an "affected person" standard confers standing on a wide range of persons. A resident in one corner of the state (or out-of-state) is in fact impacted by the level of service standard assigned to a state or federally maintained road by the plan of a local government in another corner of the state. Without a requirement of substantiality, the application of the expansive interpretation of the "affected person" standard would prove difficult. But a requirement of substantiality cannot easily be imputed to Section 163.3184(1)(a). The "affected person" provision is not expressly qualified by any requirement of substantiality, as contrasted to similar requirements imposed upon persons challenging land development regulations (Chapter 120 "substantial interest") and development orders ("aggrieved or adversely affected persons").
The proper interpretation of the "affected person" provision requires consideration of the purpose of mentioning persons residing, owning property, and owning and operating businesses in the jurisdiction of the subject local government. These persons share a special relationship with the local government. Residents (and citizens under the case law) are entitled to expect that their local government will notify them of public hearings at which laws will be passed. Property owners (and business owners and operators under the Act) are similarly entitled to notice because of the likelihood that local laws will impact their property and business interests.
Acknowledging the legislative nature of the plan-adoption process, 8/ the restrictive interpretation of Section 163.3184(1)(a) is consistent with the recognition of the standing of residents, property owners, and business owners and operators, without regard to the substantiality of their affected interests. These persons bear a major share of the financial burden of operating the government. In this respect, persons with less of a nexus with the subject local government generally have less at stake with local laws and how the local government conducts its business.
The statute allows extra-jurisdictional challenges by adjoining local governments, but they must satisfy a substantiality requirement that is not expressly imposed upon other "affected persons." Unlike a local government's residents, property owners, or business owners or operators, an adjoining local government must show "substantial impacts," either upon its publicly funded infrastructure or its areas designated for special protection or treatment. The "substantial impacts" requirement imposed on this class of extra-jurisdictional challengers emphasizes the large-scale considerations that are more properly the subject of planning and plan challenges.
The restrictive interpretation of the "affected person" standard deprives certain persons of the ability to pursue an effective remedy, under the Act, for impacts resulting from the plan of an adjoining local government. 9/ Additionally, excluding adjacent landowners who are otherwise in fact affected does not, in itself, further the intent of the Act to address the extra- jurisdictional effect of a local government's comprehensive plan. See, e.g., Sections 163.3177(4)(a) ("[c]oordination of the local comprehensive plan with the comprehensive plans of adjacent municipalities, the county, adjacent counties, or the region... shall be a major objective ...") and 163.3177(6)(h) (requirement of intergovernmental coordination element).
However, the restrictive interpretation of the "affected persons" standard does not preclude meaningful consideration of the extra-jurisdictional effects of a local comprehensive plan. In addition to its substantive requirements, the Act subjects local comprehensive plans to elaborate public participation requirements, state and regional review, and significant economic sanctions for noncompliance. Also, the extra-jurisdictional effects of a plan are addressed by the assignment of enforcement responsibilities to the Department of Community Affairs, other state and regional agencies, adjoining local governments (to the extent discussed above), and "affected persons."
The restrictive interpretation of the "affected person" provision gives greater meaning to the three examples of "affected persons." In addition to avoiding the practical problems of applying an "affected-in-fact" standard, the restrictive interpretation is more consistent with the scheme of Section 163.3184(1)(a). When the Legislature wanted to impose a requirement of substantiality, it did so with respect to adjoining local governments, as well as in the standing provisions governing challenges to land development regulations and development orders. Under a long line of cases decided prior to the enactment of the Act, the "affected person" standard had a well-understood meaning that largely corresponds to the restrictive reading of Section 163.3184(1)(a), and there is no reason to believe that the Legislature intended to broaden this class of persons with standing to challenge a local comprehensive plan.
To the contrary, there is a persuasive reason to believe that the Legislature intended the restrictive interpretation of "affected persons." Regardless whether labeled legislative or quasi-judicial, the adoption of a local comprehensive plan represents the culmination of an important political process. The plan is a fundamental expression of what community members envision for their community and how they plan to realize this vision. Vital features of the planning process required by the Act are the community's identification of the infrastructure needed to accommodate growth, estimate of expenditures necessary to fund the necessary infrastructure, and identification of sources of revenues to pay for the needed infrastructure. In this process, members of a community typically undertake substantial financial obligations to acquire such items as regional wastewater treatment plants, central water plants, stormwater management systems, roads, parks, schools, and environmentally sensitive lands.
It is therefore not unreasonable to interpret the "affected person" provision consistent with an inference of legislative intent to restrict standing to those persons most likely to be called upon to fund the local financial obligations assumed by the community in its plan. These persons are residents, property owners, business owners and operators, and other persons standing in a similar relationship to the local government. Although it is a close question, it appears that the restrictive interpretation is the correct one.
Accordingly, it is hereby
RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petition of Carole C. Pope for lack of standing.
ENTERED this 16th day of October, 1990, in Tallahassee, Florida.
ROBERT D. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1990.
ENDNOTES
1/ To perfect his standing, an affected person must also submit oral or written objections to the local government, but this requirement is not at issue presently.
2/ The American Heritage Dictionary of the English Language (1981 ed.) defines "include" as "[t]o have as a part or member; be made up of, at least in part; contain." The accompanying usage note observes that "[c]omprise usually implies that all of the constituents are stated. Include can be so used, but, like [its other synonyms], more often implies an incomplete listing.
Compare Sections 163.3213(2)(a) and 163.3215(2), which use the word, "means" to identify those persons with standing to challenge land development regulations and development orders, with Section 163.3184(1)(a), which uses the word, "include" to illustrate those persons with standing to challenge plans.
3/ The Renard opinion's first category, which describes the standing required to enforce a validly enacted zoning ordinance, provides that the challenger must show "special damages different in kind from that suffered by the community as a whole." Id. at 835. Accord, Skaggs-Albertsons v. ABC Liquors, Inc., 363 So.2d 1082 (Fla. 1978) It is unnecessary in this recommended order to consider to what extent, if any, the "special damages" standard resembles the "substantial interest" standard applicable to challenges to land development regulations under Section 163.3213(2)(a).
4/ See, e.g., Rinker Material Corporation v. Metropolitan Dade Company, 528 So.2d 904 (Fla. 3rd DCA 1987) (operator of rock-blasting quarry adjacent to land rezoned to low density residential had standing as adversely affected party due to proximity of redesignated land, character of area, and type of change; court held that diminution of property value represents a legally recognizable interest); Exchange Investments, Inc. v. Alachua County, 481 So.2d 1223 (Fla.
1st DCA 1985) (owners of land within one mile of development had standing to challenge a rezoning that adversely affected their off-street parking; court held that off-street parking is legally recognizable interest); Carlos Estates, Inc. v. Dade County, 426 So.2d 1167 (Fla. 3rd DCA 1983) (resident 700 feet from zero-lot-line development had standing to challenge a special exception; challenger had definite interest, in addition to interest shared by community, in ensuing decreased traffic safety and water pressure and increased school population); and Jones v. First Virginia Mortgage and Real Estate Investment
Trust, 399 So.2d 1068 (Fla. 2nd DCA 1981) (lender financing development had standing to challenge zoning ordinance adversely affecting its security).
5/ In the other case, Knowles v. Town of Kenneth City, 247 So.2d 748 (Fla. 2nd DCA 1971), purchasers of land seeking to build apartments obtained rezoning to allow multifamily residential use. When they applied for a building permit, the city rezoned the land back to single-family residential. The latter rezoning ordinance was void because it was adopted without the required statutory notice. The opinion assumed the standing of the landowners without addressing the issue.
6/ See, e.g., Albright v. Hensley, 492 So.2d 852 (Fla. 5th DCA 1986) (landowners and taxpayers of Marion County had standing to challenge a zoning variance adopted with required notice) and Upper Keys Citizens Association, Inc.
v. Wedel, 341 So.2d 1062 (Fla. 3rd DCA 1977) (nonprofit corporation whose members include citizens of Monroe County had standing to challenge zoning ordinance adopted without required notice because challenger was an affected resident, citizen, or property owner). Compare Sumter County v. Davis, 356 So.2d 899 (Fla. 2nd DCA 1978) (owner of land in Sumter County lacked definite legal interest for standing to challenge two county zoning ordinances as "not in compliance with certain statutory formalities prescribed in Chapter 163, Florida Statutes (1976)"; although court does not discuss Renard, it may have treated the challenge as one to a validly enacted ordinance that is claimed to be not fairly debatable, rather than a challenge to an invalidly enacted ordinance).
In Save Brickell Avenue, Inc. v. City of Miami, 393 So.2d 1197 (Fla. 3rd DCA 1981), the court, finding Wedel "precisely on point," held that a corporation had standing, as an "affected citizen," to challenge what was apparently claimed to be an invalidly enacted zoning ordinance. Corporations are typically citizens of states, not counties. The brief opinion does not address the part of the Renard "affected resident, citizen, or property owner" standard that adds, "of the governmental unit in question." It is indisputable, however, that all three alternative requirements--residency, citizenship, and property ownership--are qualified by the clause, "of the governmental unit in question." The reach of the "affected resident, citizen, or property owner" standard is limited by when a person occupies a qualifying status. In Town of Bay Harbor Islands v. Drigs, 522 So.2d 912 (Fla. 3rd DCA), rev. denied, 531 So.2d 1352 (Fla. 1988), the court considered the standing of two persons challenging the constitutionality of a zoning ordinance that had been enacted over five years prior to their purchase of the land subject to the ordinance. The lower court invalidated the ordinance because the adoption hearing failed to comply with statutory notice requirements. Reversing the lower court, the appellate court relied on the Renard requirement that only an affected resident, citizen, or property owner of the local government had standing to challenge such an ordinance. The court held that the landowners lacked standing because they did not own the land when the improperly noticed adoption hearing took place, and the law did not extend standing to "eventually adversely affected" persons.
7/ But see White v. Metropolitan Dade County, 563 So.2d 117, 127 (Fla. 3rd DCA 1990) (although interpreting the Act, the court, relying upon analysis of 1975 planning act in Citizens Growth Management, states in dictum that county residents lacked standing to pursue plan challenge because they had no legally recognizable interest).
8/ See, e.g., Rinker Materials Corporation v. Metropolitan Dade County, 528 So.2d 904, 906 (Fla. 3rd DCA 1987). However, footnote 2 of the opinion supports the inference that the Act's plan-review procedures, which entitle "affected persons" to procedural due process, may convert the plan-adoption process from legislative to quasi-judicial.
9/ The adjacent landowner may not have an opportunity to challenge the plan whose provisions affect his interests. Unless he happens to own or operate a business or own other property within the jurisdiction of the subject local government or otherwise stands in a similar relationship to the local government, the owner of land adjacent to, but not in, the jurisdiction of the local government has no standing to initiate a plan-review proceeding under Section 163.3184(9). Unable to qualify as an "affected person," he may, if he has standing, challenge the offending land development regulations and development orders, only to find that his chances to prevail are slim. The issue in a challenge to a land development regulation is whether it is fairly debatable that the regulation is consistent with the plan. Section 163.3213(5). The issue in a challenge to a development orders is whether the order "materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan." Section 163.3215(1). If the offending condition is expressly authorized in the comprehensive plan, the injured landowner will not likely prevail in his challenge of the land development regulations or development orders.
COPIES FURNISHED:
Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Karen Brodeen, Assistant General Counsel Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100
William D. Weller Post Office Box 1255 Cocoa Beach, FL 32931
Bruce W. Jacobus
Mosley, Jacobus & Wallis, P.A. Post Office Box 1210 Melbourne, FL 32902-1210
Harry C. Greenfield
Stevens, Peters & Greenfield, P.A. Post Office Box 541760
Merritt Island, FL 32954
Carole C. Pope
Post Office Box 560231 Rockledge, FL 32956-0231
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JANICE KELLY, )
)
Petitioner, )
)
vs. ) CASE NO. 90-3580GM
)
CITY OF COCOA BEACH and ) DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Respondents. )
) CAROLE C. POPE, )
)
Petitioner, )
)
vs. ) CASE NO. 90-3581GM
)
CITY OF COCOA BEACH and ) DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held in Cocoa Beach, Florida, on December 14-15, 1990, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner: Carole C. Pope, pro se
Post Office Box 560231
Rockledge, Florida 32956-0231
For Respondent City of Cocoa Beach:
William E. Weller City Attorney
Post Office Box 1255
Cocoa Beach, Florida 32931
Bruce W. Jacobus
Mosley, Jacobus & Wallis, P.A. Post Office Box 1210 Melbourne, Florida 32902-1210
For Respondent Department of Community Affairs: Karen Brodeen
Assistant General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100 STATEMENT OF THE ISSUES
The issue in this case is whether an amendment to the comprehensive plan is not in compliance for the reasons set forth in the petition, as amended.
PRELIMINARY STATEMENT
By petition filed May 27, 1990, Petitioner challenges a plan amendment designating a future land use for a parcel of land that the City proposes to annex (the Subject Parcel). The petition, as amended, raises the following issues: 1/
Whether, consistent with the provisions of Chapter 163, Part II, the City has jurisdiction to adopt and transmit a plan amendment designating the future use of land not in the City's jurisdiction.
Whether, consistent with the criterion of Rule 9J-5.006(2)(a), the plan, as amended, contains analysis of the availability of facilities and services to serve the needs of the Subject Parcel.
Whether, consistent with the criterion of Rule 9J-5.006(2)(b)4., the plan, as amended, contains analysis of the character and magnitude of the Subject Parcel and
surrounding area to determine the Subject Parcel's suitability for use in light of existing natural resources.
Whether, consistent with the criterion of Rule 9J-5.007(2)(b), the plan, as amended, contains analysis of the traffic impact of development of the Subject Parcel and surrounding area.
Whether, consistent with the criterion of Rule 9J-5.012(2)(b), the plan, as amended, contains analysis of the effect of future
land uses on coastal natural resources, including vegetation, areas subject to coastal flooding, and wildlife habitat.
Whether, consistent with the criterion of Rule 9J-5.012(2)(f), the plan, as amended, contains analysis of beaches and dunes.
Whether, consistent with the criterion of Rule 9J-5.006(3)(b)1., the plan, as amended, contains objectives coordinating future land uses with the appropriate topography, soil conditions, and available facilities and services.
Whether, consistent with the criterion of Rule 9J-5.006(3)(b)4., the plan, as amended, contains an objective to ensure the
protection of natural resources.
Whether, consistent with the criterion of Rule 9J-5.006(3)(b)5., the plan, as amended, contains an objective to coordinate coastal population densities with the applicable hurricane evacuation plan.
Whether, consistent with the criterion of Rule 9J-5.006(3)(c)1., the plan, as amended, contains policies addressing implementation activities for the regulation of land use categories and areas subject to periodic flooding.
Whether, consistent with the criterion of Rule 9J-5.006(3)(c)4., the plan, as amended, contains policies addressing implementation activities for the provision of drainage and stormwater management.
Whether, consistent with the criterion of Rule 9J-5.006(3)(c)6., the plan, as amended, contains policies addressing implementation activities for the protection of environmentally sensitive land.
Whether, consistent with the criterion of Rule 9J-5.012(3)(b)1., the plan, as amended, contains objectives to protect, conserve, or enhance the remaining coastal barriers and wildlife habitat.
Whether, consistent with the criterion of Rule 9J-5.012(3)(b)4., the plan, as amended, contains objectives to protect beaches or dunes, establish construction standards to minimize the impact of man-made structures on beach or dune systems, and restore altered beaches or dunes.
Whether, consistent with the criterion of Rule 9J-5.012(3)(b)6., the plan, as amended, contains an objective to direct population concentrations away from known or predicted coastal high-hazard areas.
Whether, consistent with the criterion of Rule 9J-5.012(3)(c)1., the plan, as amended, contains policies identifying regulatory or management techniques for limiting the specific and cumulative impacts of development or redevelopment water quality, wildlife habitat, and beach and dune systems.
Whether, consistent with the criterion of Rule 9J-5.012(3)(c)2., the plan, as amended, contains policies identifying regulatory or management techniques for restoring or enhancing disturbed or degraded natural resources, including beaches and dunes and drainage systems, and establishing
programs to mitigate future disruptions or degradations.
Whether, consistent with the criterion of Rule 9J-5.012(3)(c)3., the plan, as amended, contains policies identifying regulatory or management techniques for mitigating general hazards including by the regulation of building practices, floodplains, beach and dune alteration, stormwater management, sanitary sewer and septic tanks, and land use to reduce the exposure of human life and public and private property to natural hazards.
Whether, consistent with the criterion of Rule 9J-5.013(2)(b)3., the plan, as amended, contains an objective to conserve, appropriately use, and protect the native vegetative communities and soils of the dune system.
Whether, consistent with the criterion of Rule 9J-5.013(2)(b)4., the plan, as amended, contains an objective to conserve, appropriately use, and protect fisheries, wildlife, and wildlife habitat.
Whether, consistent with the criterion of Rule 9J-5.013(2)(c)3., the plan, as amended, contains policies addressing implementation activities for the protection of native vegetative communities from destruction by development activities.
Whether, consistent with the criterion of Rule 9J-5.013(2)(c)5., the plan, as amended, contains policies addressing implementation activities for the restriction of activities known to affect adversely the survival of endangered and threatened wildlife.
Whether, consistent with the criterion of Rule 9J-5.013(2)(c)6., the plan, as amended, contains policies addressing implementation activities for the protection and conservation of the natural functions of wildlife habitats and dune systems.
Whether, consistent with the criteria of Section 163.3178, the plan, as amended, restricts development that would allow damage and destruction of coastal resources,
protects human life, and limits public expenditures in areas subject to destruction by natural disaster.
Whether, consistent with the criterion of internal consistency, the plan amendment is consistent with Future Land Use Element Policy 7.1, Future Land Use Element Objective 9, Future Land Use Element Policy 9.2, and Coastal Management/Conservation Element Objective 14.
Whether the plan, as amended, is consistent with the following provisions of the regional policy plan: Policy 40.6 with respect to the effect on coastal beach and dune systems of development of the Subject Parcel and Policy 64.13 [sic; should be 64.12] with respect to the effect on hurricane evacuation times of development of the Subject Parcel.
Whether the plan, as amended, is consistent with the following provisions of the state comprehensive plan: Section 187.201(9)(a) as to the effect of development of the Subject Parcel on hurricane evacuation times; Section 187.201(9)(b)4. and 9. as to the protection of beach and dune systems; Section 187.201(10)(b)3 as to the protection of threatened species and their habitats;
and Section 187.201(16)(b)1. as to the effect of development of the Subject Parcel on the level of service of existing roadways.
At the commencement of the final hearing, the City orally made a motion for a recommended order of dismissal on the grounds that Petitioner lacked standing and had failed to comply with the requirements of the prehearing order. The motion was denied. 2/
At the final hearing, Petitioner called 15 witnesses and offered into evidence 31 exhibits. The City of Cocoa Beach called four witnesses and offered into evidence six exhibits. The Department of Community Affairs called one witness and offered into evidence no exhibits. All exhibits were admitted except the following exhibits of Petitioner: 2 (admitted only as to attached exhibits; remainder proffered) 3/; 3 (proffered); 6 (withdrawn); 10 (withdrawn);
16 (proffered); 23 (proffered); 25 (withdrawn); 31 (never filed); 32 (never filed) 4/; and 34.
No transcript was ordered. The parties filed proposed recommended orders, and rulings on the proposed findings are set forth in the appendix.
FINDINGS OF FACT
Parties
City of Cocoa Beach
The City of Cocoa Beach (City) is a municipality located in Brevard County. The City has previously submitted a comprehensive plan pursuant to the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act of 1985. The Department of Community Affairs determined the original plan to be in compliance, and the determination has become final.
Department of Community Affairs
The Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing comprehensive plans under Chapter 163, Part II, Florida Statutes.
Carole C. Pope
Carole C. Pope (Petitioner) resides in the City of Rockledge Brevard County, Florida. She submitted oral or written objections during the review and adoption proceedings concerning the subject plan amendment.
Petitioner does not own property or own or operate a business in the City of Cocoa Beach. She and her husband own Lot 11 (less the west 15 feet reserved for road right-of-way), Block 101, of the platted subdivision known as Avon-by-the Sea. The parcel, which Petitioner occupies annually during the summer, is located in unincorporated Brevard County, about 200 feet north of the existing north boundary of the City.
Petitioner's property, which contains a duplex dwelling unit, measures about 475 feet east-west by 50 feet north-south. The lot is bound on the north by Wilson Avenue, the west by Azure Lane, the east by the Atlantic Ocean, and the south by Lot 12 of Block 101.
Immediately south of Petitioner's lot are four other oceanfront lots measuring about 490 feet east-west by 50 feet north-south and constituting over two acres of the 2.3-acre Subject Parcel. These four lots and one and one-half smaller lots directly across Azure Lane from Petitioner's lot constitute the land that is the subject of the present plan amendment (Subject Parcel). The five and one-half lots forming the Subject Parcel total about 2.3 acres.
The Subject Parcel is located in what is generally a residential area. Many of the nearby lots have been developed with single- and multi-family residential units. Just to the south of the Subject Parcel, across Harding Avenue, is an eight-story condominium project known as Discovery Beach. Immediately north of Petitioner's lot is a two-story condominium. One block west of Azure Lane is Ridgewood Avenue, which is classified as a collector. Two blocks, or about one-quarter mile, west of Azure Lane is State Route A1A, which is classified as a major arterial.
Annexation of Subject Parcel
The Subject Parcel comprises properties not under common ownership. For instance, the owners of the small one and one-half lots west of Azure Lane do not own the four large oceanfront lots immediately south of Petitioner's property.
In response to the desires of a prospective purchaser, the owners of the Subject Parcel caused or allowed the commencement of an annexation proceeding with respect to their properties. The northern boundary of the City presently extends to Harding Avenue, which runs along the south boundary of the southernmost of the four oceanfront lots described above.
On March 15, 1990, the City Commission adopted on second reading Ordinance No. 928. The ordinance describes the Subject Parcel and states that it is "hereby annexed and incorporated into the City of Cocoa Beach." Somewhat contradictorily, Ordinance No. 928 also states:
This Ordinance shall become effective following compliance with Section 163.3187(15)(c) Florida Statutes (1987) and
immediately after the changes herein provided for have been duly entered upon [the Future Land Use Map].
The ordinance adds in the following section: "This Ordinance will become effective upon completion of publication requirements for annexation and compliance review by the State Department of Community Affairs."
The intent of the City Commission in adopting Ordinance No. 928 was to postpone the effective date of the annexation until DCA's determination of compliance, as to the plan amendment, became final. The ordinance is interpreted consistent with this intent.
The language of Ordinance No. 928 is unclear as to whether the annexation takes effect in the event of a final determination of noncompliance. It appears that the intent of the City Commission in adopting Ordinance No. 928 was to condition the annexation upon a favorable final determination. Absent a final determination of compliance, the annexation would never become effective and the Subject Parcel would remain in the unincorporated County. The ordinance is interpreted consistent with this intent.
The language of Ordinance No. 928 is unclear as to whether the annexation takes effect regardless of the objections of current owners during the plan amendment review process. As to this issue, the intent of the City Commission in adopting Ordinance No. 928 is not evident. It appears that no one anticipated this possibility. In fact, the owners of the one and one-half lots west of Azure Lane no longer desire annexation into the City. The record does not allow a determination whether annexation may proceed over the owners' objection.
Plan Amendment and Additional Data and Analysis
Ordinance No. 928 makes only one amendment to the operative provisions of the City's plan. The ordinance designates the Subject Parcel as High Density Multi-Family on the Future Land Use Map. The City's High Density Multi-Family designation allows a residential density of 15 dwelling units per gross acre, a transient (hotel/motel) density of 40 rooms per gross acre, and limited professional and commercial uses.
The City transmitted to DCA two sets of data and analysis in support of the designation proposed for the Subject Parcel. The first set accompanied the plan amendment, and the second set consisted of responses to DCA's Objections, Recommendations, and Comments on the proposed plan amendment (collectively, Data and Analysis).
The Data and Analysis explain that the City's proposed designation would yield 35 dwelling units or 92 hotel/motel rooms on the Subject Parcel. However, the Data and Analysis note that the "applicant" (i.e., the prospective purchaser) will agree to allow the City to restrict the hotel/motel density to
30 rooms per gross acre, which generates 69 hotel/motel rooms. 5/
The two sets of Data and Analysis are inconsistent as to the critical question of the present designation and permitted land uses under the County's plan. The first set erroneously states that the County's plan designates the Subject Parcel as "Mixed Use" and allows 30 hotel/motel rooms per gross acre for a total of 69 rooms. The second set correctly states that the County's plan designates the Subject Parcel as "High Density Residential" and omits mention of
any hotel/motel uses. Since April 9, 1990, if not before, the County's plan has designated the Subject Parcel as "Residential." 6/
Addressing the impact of the proposed designation upon public facilities, the Data and Analysis calculate an increase in daily vehicular trips from 455 to 703, if the 69 residential units under the County's plan were changed to 69 hotel/motel rooms under the City's plan. However, the additional trips would not, according to the Data and Analysis, reduce the level of service standards of affected roads below the adopted level of service standards for those roads. A similar conclusion follows if the City allowed 92 hotel/motel rooms to be built on the Subject Property. The Data and Analysis disclose ample capacity in central sewer and water facilities and disclose no problems with respect to other facilities and services, regardless whether the City allowed 69 or 92 hotel/motel rooms on the Subject Parcel.
According to the Data and Analysis, the Subject Parcel is, on average,
9.5 feet above mean sea level, although it is not in the 100-year floodplain. The soil series found on the site has only very slight limitations for dwellings. The dune area, which has suffered little erosion, is well vegetated with dune grass, sea oats, sea grapes, and railroad vines. Otherwise, the Data and Analysis report that the site is clear, except for a building located seaward of the Coastal Construction Control Line set by the Florida Department of Natural Resources. 7/
The Data and Analysis state that the Subject Parcel contains no known habitat for endangered or threatened species or species of special concern, although the Atlantic Loggerhead Turtle and Atlantic Green Turtle use the coastline for nesting. However, the Data and Analysis mention that the City's lighting ordinance helps eliminate a lighting hazard to the fledgling sea turtles from May 1 through October 31.
With respect to coastal hazards, the Data and Analysis state that the landward boundary of the Coastal High Hazard Area, through the Subject Parcel, is about 365 feet west of the mean high water line. The Data and Analysis represent that the City permits no building in this area and allows no disturbance seaward of the Coastal Construction Control Line in the absence of a hermit from the Florida Department of Natural Resources.
Noting that the each of the two plans allows a total population of 152 persons on the Subject Parcel, the Data and Analysis reason that the proposed amendment will not impact actual hurricane evacuation times or designated maximum hurricane evacuation times, which in each plan approximate 12 hours, exclusive of behavioral response times. It is evident from the Data and Analysis that the construction of even 92 hotel/motel rooms on the Subject Parcel would not measurably affect hurricane evacuation times.
City's Plan: Data and Analysis
As described in Paragraphs 15-22 above, the City provided DCA new Data and Analysis in support of the subject plan. However, the plan already contained data and analysis that bear on the proposed designation of the Subject Parcel.
The data and analysis accompanying the original plan state that the City is located on an "intensely developed" barrier island. Of the 1772 acres within the City, exclusive of road right-of-way, finger canals and the Thousand Islands located in the Banana River, only 180 acres of vacant land remain.
Based on land use designations, the supply of land available for multi-family development may be exhausted by 1998.
The data and analysis note that the sandy beaches and dunes provide essential nesting areas for a variety of endangered or threatened sea turtles. In the Summary of Ecological Communities, the data and analysis list three endangered or threatened wildlife species and two vegetative species as occupying the beach and dune habitat, which constitutes the part of the Subject Parcel seaward of the Coastal Construction Control Line. The data and analysis list no such species occupying the barrier island interior habitat, which constitutes the part of the Subject Parcel landward of the Coastal Construction Control Line.
The data and analysis report that a foredune runs the length of Cocoa Beach. However, most of the extant dunes have reportedly been adversely impacted by roads, fences, structures, and parking lots.
The data and analysis acknowledge that the entire City is subject to coastal flooding and included in the Hurricane Vulnerability Zone, as well as the "coastal zone." It is less clear what extent of the City is located in the Coastal High Hazard Area. Future Land Use Element (FLUE) Policy 6.3 and Coastal Management/Conservation Element (Conservation) Policy 14.1, which are identical, state that the Coastal High Hazard Area shall be the area located within the "velocity zone or seaward of the Coastal Construction Control Line ...." No map in the plan depicts the location of the Coastal High Hazard Area, and the locations of the velocity zone and Coastal Construction Control Line are not depicted either.
The data and analysis state that little infrastructure is located in the Coastal High Hazard Area. The primary strategies of the City to address coastal hazards are to enforce the building elevations shown on Flood Insurance Rate Maps and rely on the Florida Department of Natural Resources to enforce the Coastal Construction Control Line.
The data and analysis concede that the City can do little to reduce evacuation times except to exhort the State of Florida to raise the elevation of State Routes A1A and 520, which are critical hurricane evacuation routes and are subject to early flooding.
City's Plan: Objectives and Policies
Several plan provisions coordinate future land uses with available facilities and services. For instance, FLUE Policy 4.1 precludes the issuance of a development order until the applicable levels of service are met.
The future land use designations themselves are also coordinated with available facilities and services. The data and analysis disclose no general deficiencies in relevant facilities and services when evaluated against the designations contained in the future land use maps.
As to the coordination of future land uses with topography and soil conditions, FLUE Objective 3 limits development on Tidal Swamp soils to one unit per five acres; FLUE Objective 9 prohibits construction activity from damaging the dunes; Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Groundwater Aquifer Recharge Element (Public Facilities) Objective 4 requires the City to complete a study by the end of 1992 to identify its most pressing drainage problems and initiate solutions; Public Facilities Policy 5.1 imposes a
drainage level of service standard with respect to stormwater runoff; FLUE and Conservation Objectives 1 require the use of flood control and shoreline erosion control techniques to improve estuarine quality; Conservation Objectives 4 and 5 and the ensuing policy clusters provide protection to the dunes; and Conservation Objective 6 and the ensuing policy cluster provide protection to the beaches.
Several plan provisions ensure the protection of natural resources. The plan states that the City contains no waterwells, cones of influences, or minerals. Plan provisions protecting beaches and soils have been discussed in connection with the coordination of future land uses with soils and topography.
Plan provisions concerning wetlands are irrelevant to the present case because the Subject Parcel contains no wetlands. Although drainage from the Subject Parcel may reach the estuarine waters of the Indian River Lagoon, the connection is too remote to interpret the amended petition as raising the issue of protection of rivers and bays. As to floodplains, a Future Land Use Map shows the entire oceanside of the City to be outside of the 100-year floodplain.
Conservation Objective 15 is to achieve an evacuation time of less than 12 hours for a category three or stronger hurricane. FLUE Policy 4.1g conditions the issuance of a development order on a determination that a project will not increase the hurricane evacuation time to over 12 hours.
FLUE Policies 1.1-1.3 and 6.1-6.4 address implementation activities for the regulation of land use categories. With respect to policies addressing implementation activities for the regulation of floodprone areas, FLUE Objective
requires construction in the floodplain or the Coastal High Hazard Area to satisfy the building elevations identified in the Flood Insurance Rate Maps.
Several plan provisions address implementation activities for the provision of drainage and stormwater management. FLUE Objectives 2 and 3 deal with drainage and stormwater management, and FLUE Policies 2.1 and 3.1 establish implementation activities reasonably calculated to achieve the objectives. FLUE Policy 4.1a conditions the issuance of a development order on a determination that a project will retain the first inch of runoff (for a project less than 100 acres) or the first half-inch of runoff (for a larger project), apparently in a 10-year/24-hour storm event. The policy also limits, for such a storm event, post-development runoff to predevelopment runoff. Public Facilities Policy 4.1 provides that the City will promptly fund the most critical drainage improvements identified in a drainage study to completed by the end of 1992.
FLUE Policy 7.1 requires the City to require the preservation of environmentally sensitive coastal and wetland areas or that damage be mitigated. Several objectives protect beaches and dunes. FLUE Objective 8, which is identical to Conservation Objective 4, provides that vehicular and pedestrian traffic shall not damage the dune system. FLUE Objective 9 provides that construction activities shall not damage the dunes. Conservation Objective 5 is identical, but adds that altered dunes shall be restored. Conservation Objective 6 states that the City shall promote beach nourishment projects.
Policy 3.4 requires the City to set aside at least two islands in the Thousand Islands to be used exclusively as rookeries and wildlife habitat, and Conservation Objective 7, as well as the ensuing policy cluster, protect and increase native vegetation and wildlife habitat. Conservation Objective 10 and its policy cluster protect soils and groundwater from hazardous waste contamination.
Conservation Objective 14 is to "direct population and development landward of the coastal high-hazard area." The two policies under Objective 14 provide for the relocation of public infrastructure in the Coastal High Hazard Area (unless related to certain excepted uses) and for the rebuilding of certain structures in the Coastal High Hazard Area in accordance with all current land development regulations.
FLUE Policy 2.1b conditions the issuance of a development order within the Coastal High Hazard Area upon the determination that the Florida Department of Natural Resources has approved the construction and the proposed project complies with any "reasonable" conditions imposed by the Florida Department of Natural Resources. Conservation Policy 13.2 states: "[The City] will rely upon the Florida Department of Natural Resources to enforce the building limitations seaward of the Coastal Construction Control Line."
Many plan provisions identifying techniques for limiting impacts of development on water quality, wildlife habitat, living marine resources, and beach and dune systems have been discussed in the preceding paragraphs. Additional provisions include Public Facilities Policy 1.1, which is to expand the effluent reuse program until at least half the effluent is reused by 1995; Conservation Policy 3.1, which protects sea turtles and their nests by enforcing the light ordinance and monitoring; Conservation Policy 3.2, which protects manatee habitat; Conservation Policy 3.5, which requires the preparation of a management plan for the minimization of adverse effects of development on endangered or threatened species found on the site; Conservation Policy 7.4, which prohibits the use and, in the event of redevelopment or construction, requires the removal of noxious, exotic species such as Brazilian Pepper; and Conservation Objective 9, which is to reduce discharge from the City sewage treatment plant into the Banana River Lagoon by 50%.
Plan provisions identifying techniques for mitigating general hazards, including the regulation of floodplains, beaches and dunes, stormwater management, and land use to reduce the exposure of human life and property to natural hazards, have been discussed in the preceding paragraphs. As to sanitary sewer, Public Facilities Objective 1 assures that the City residents will have access to sanitary sewer facilities and the City will protect the Banana River by expanding the effluent reuse program. Public Facilities Policy
conditions the issuance of a development order on a determination of sanitary sewer capacity of 100 gallons per day per person.
Plan provisions conserving and protecting soils, fisheries, wildlife, wildlife habitat, native vegetation, endangered or threatened species, and protection from coastal natural hazards have been discussed in the preceding paragraphs. In addition, FLUE Policy 9.2 states that the City will "require development in the dune area to use naturally vegetated dune to meet open space requirements, and to preserve the full range of existing interconnected dune vegetational zones."
County's Plan: Objectives and Policies
Future Land Use Element Policy 1.1C. of the County's plan limits the land designated as Residential to a density of 30 dwelling units per acre. It is unclear whether the County's plan permits the construction of hotel/motel rooms on the Subject Parcel. 8/ Even if so, the County's plan limits density to
15 rooms per acre. 9/ Future Land Use Element Policy 1.8 precludes any increase
in densities for the Coastal High Hazard Area and High Risk Vulnerability Zones until the County completes Strategic Area Plans for the areas in question.
Coastal Management Element Policy 4.1 contemplates that the County will permit construction seaward of its Coastal Construction Control Line, which is typically the same as the line established by the Florida Department of Natural Resources. Conditions imposed on construction in the area seaward of the Coastal Construction Control Line include the preservation of half of the existing vegetation, limitation of impervious surface to 45%, and construction to standards designed to withstand wind and water forces from the 100-year storm.
Relevant Provisions of the Regional Plan
Policy 40.6 of the East Central Florida Comprehensive Regional Policy Plan, June, 1987 (Regional Plan) provides:
Structural development along sand beaches fronting the Atlantic Ocean shall not adversely affect the coastal beach and dune system. The following criteria shall apply in the implementation of this policy:
Beach setbacks shall be established to protect and preserve the coastal beach and dune systems fronting the Atlantic Ocean.
Structures shall be prohibited within the established setback except where overriding public interest is apparent, or the structures are necessary for reasonable access and are elevated above the existing dune vegetation.
MEASURE: The number of ordinances which establish beach setbacks.
Regional Plan Policy 64.12 provides:
Land development in the coastal zone shall be manned [sic] so that public facility and service needs required to maintain existing hurricane evacuation times do not exceed the ability of local government to provide them. MEASURE: The clearance time required to evacuate the population-at-risk within the region's coastal zone.
Relevant Provisions of the State Comprehensive Plan
Section 187.201(9)(a) is a goal of the state comprehensive plan. The goal is:
Florida shall ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources. Florida shall, through acquisition and access improvements, make available to the stage's population additional beaches and marine
environment, consistent with sound environmental planning.
Section 187.201(9)(b) contains the following policies:
4. Protect coastal resources, marine resources, and dune systems from the adverse effects of development.
9. Prohibit development and other activities which disturb coastal dune systems, and ensure and promote restoration of coastal dune systems that are damaged.
Section 187.201(10)(b)3. is to "[p]rohibit the destruction of endangered species and protect their habitats.
Section 187.201(16)(b)1. is a policy to:
Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new populations and commerce.
Ultimate Findings of Fact
Jurisdiction
As to Issue 1, 10/ the City has exercised planning authority over land that is neither within its jurisdiction nor the subject of a joint agreement with Brevard County. All of the conditions precedent to the annexation have not been met and might not even be satisfied by a final determination of compliance in this case. It is unclear whether annexation will necessarily proceed over the objections of the present owners of part of the Subject Parcel, especially when various unsatisfied contingencies may prevent the prospective purchaser from acquiring title to the land.
Consistency of Data and Analysis with Criteria
As to Issues 2-6, it is fairly debatable that the plan, as amended, is consistent with the criteria set forth in the statement of these issues.
Consistency of Objectives and Policies with Criteria
As to Issues 7-24, it is fairly debatable that the plan, as amended, is consistent with the criteria set forth in the statement of these issues.
Internal Consistency
As to Issue 25, it is fairly debatable that the designation of the Subject Parcel contained in the present plan amendment is consistent with the provisions of FLUE Policy 7.1, FLUE Objective 9, and FLUE Policy 9.2. These plan provisions require the protection of environmentally sensitive coastal areas, including the dunes. The designation of the Subject Parcel does not, to the exclusion of fair debate, conflict with these three provisions.
To the exclusion of fair debate, the designation of the Subject Parcel as High Density Multi-Family is not consistent with Conservation Objective 14, which is to direct population and development landward of the Coastal High Hazard Area.
A finding whether a plan amendment is consistent with a provision to direct population and development landward of the Coastal High Hazard Area may be facilitated by comparing densities allowed under the plan amendment with densities in effect prior to the amendment.
With respect to the part of the Subject Parcel within the Coastal High Hazard Area, the County's plan imposes more demanding restrictions upon development than those that would be imposed under the City's plan. In both plans, the local governments cede to the Florida Department of Natural Resources the threshold decision whether to allow construction seaward of the Coastal Construction Control Line, which generally operates as the landward boundary of the Coastal High Hazard Area. However, the City's plan requires compliance only with "reasonable" conditions imposed by the Florida Department of Natural Resources in granting the permit.
In contrast, the County's plan requires that construction seaward of the Coastal Construction Control Line (or in the Coastal High Hazard Area) meet certain minimum requirements. 11/ It is impossible to assume that all development of the Subject Parcel will necessarily take place outside the Coastal High Hazard Area. Neither plan itself prohibits development in the Coastal High Hazard Area, which encompasses nearly 75% of the four oceanfront lots forming most of the Subject Parcel. Thus, the additional protection in the County's plan for the Coastal High Hazard Area contributes to a finding of internal inconsistency.
The County's plan permits a density of 30 dwelling units per acre and, most likely, no more than 15 hotel/motel rooms per acre. The City's plan permits the same density for dwelling units, but 45 hotel/motel rooms per acre. 12/ Thus, even if the County's plan permitted 30 boardinghouse or bed and breakfast rooms per acre, the effect of the plan amendment is to increase the density on the Subject Parcel by at least 15 rooms per acre. As noted above, because neither plan itself prohibits development in the Coastal High Hazard Area, which consumes much of the Subject Parcel, it is impossible to assume that all development of the Subject Parcel necessarily will take place outside the Coastal High Hazard Area. Thus, the lower densities permitted in the County's plan for development in the Coastal High Hazard Area contributes to a finding of internal inconsistency.
Consistency with Regional Plan
As to Issue 26, it is fairly debatable that the plan, as amended, is consistent with Policies 40.6 and 64.12 of the Regional Plan. Regardless of the effectiveness of any coastal setback provisions in the City's plan, other provisions specifically protect the coastal beach and dune system addressed by Policy 40.6.
Consistency with State Comprehensive Plan
As to Issue 27, it is fairly debatable that the plan, as amended, is consistent with Section 187.201(9)(a) and (b), (10)(b)3., and (16)(b)1. Consistency with Section 187.201(9)(a) is based upon consideration of the state comprehensive plan as a whole.
CONCLUSIONS OF LAW
Standing
Section 163.3184(9)(a), Florida Statutes, provides that any "affected person" may file a petition to challenge a local comprehensive plan that DCA has found to be in compliance. 13/ An "affected person" includes "persons owning property, residing, or owning or operating a business within the boundaries of the local government ...." Section 163.3184(1)(a).
Petitioner submitted oral or written objections during the review and adoption proceedings. The question in this case is whether she meets the remainder of the definition of an "affected person." Questions of law concerning standing in this case are governed by DCA's Order Denying Motion to Dismiss and Remanding Proceeding to Division of Administrative Hearings for Further Proceedings dated November 15, 1990. Petitioner thus has standing as long as her "interests are the same or similar to interests of persons who reside, own property or operate businesses within the local government ...." DCA Order, p. 7. The DCA Order reasons that "[a]dverse impacts in terms of traffic, degradation of natural resources, and hurricane evacuation are the sort of impacts that are likely to be felt by the enumerated `affected persons.'" Id.
There is no dispute that the Subject Parcel presently is occupied by only a single residence. Development of the Subject Parcel will increase the density and intensity of use of the Subject Parcel. Petitioner has thus met the statutory standing requirements, as set forth in the DCA Order.
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in cases involving compliance determinations. Sections 120.57(1) and 163.3184(9).
However, the City lacks jurisdiction under the Act to adopt the subject plan amendment because the City has attempted to extend its planning jurisdiction to land in unincorporated Brevard County without the consent of the County. Addressing this issue, Section 163.3171(1) provides:
A municipality shall exercise authority under this act for the total area under its jurisdiction. Unincorporated areas adjacent to incorporated municipalities may be included in the area of municipal jurisdiction for the purposes of this act if the governing bodies of the municipality and the county in which the area is located [enter into a joint agreement]. Such joint agreement shall be formally stated and approved in appropriate official action by the governing bodies involved.
No joint agreement exists between the City and Brevard County as to the Subject Parcel. No authority therefore exists for the City in its plan to exercise planning jurisdiction over the Subject Parcel. The City has not annexed the Subject Parcel, and, based on the record, the City may never be able to annex the Subject Parcel, even if the plan amendment were finally determined
to be in compliance. The proposed annexation appears to be conditioned upon the consent of the present owners, some of whom now object to the annexation, and possibly the sale of the Subject Parcel to the prospective purchaser.
It may behoove a landowner (or especially a prospective landowner) in an unincorporated area to obtain a preview of how an adjoining municipality would designate certain land if the land were annexed. It may even behoove an adjoining municipality to go to the time and effort of providing such a preview.
However, the Act does not authorize local governments, on behalf of owners and prospective owners of land in unincorporated areas of counties, to present hypothetical planning issues to the Administration Commission, DCA, and Division of Administrative Hearings for determinations of compliance under the Act. Section 163.3171(1) requires a municipality to plan for the entire area under its jurisdiction and unincorporated areas that are subject to joint agreements with the appropriate counties. Nothing in the Act suggests that local governments may, in the absence of joint agreements, impose their plans upon land outside their jurisdiction.
Allowing municipalities to obtain compliance determinations based on hypothetical planning issues may create confusion and disharmony between a county and municipalities. However, problems remain even if a county were not to object to the city obtaining a determination on land not yet annexed and still subject to the planning jurisdiction of the county. For example, when a condition to annexation is a final determination of compliance, as here, the annexation never takes place if the plan amendment is finally determined not to be in compliance. The proceeding that culminates in a noncompliance determination would thus be only advisory. This is a poor use of limited administrative resources.
There is no statutory authority for a municipality to initiate a formal plan-review process, complete with inter-agency review and an administrative hearing, to obtain what amounts to no more than an advisory opinion on hypothetical planning language for areas that are not yet under the municipality's jurisdiction and, in the event of an adverse result (or possibly even a favorable result), may never be. Questions exist whether a final order rendered in such a case even presents an actual controversy qualifying for appellate review. 14/
Meaning of "In Compliance"
A plan is "in compliance" if it is "consistent with the requirements of Sections 163.3177 [and] 163.3178 ..., the state comprehensive plan, the appropriate regional policy plan, and [R]ule 9J-5 ..., where such rule is not inconsistent with [the Act.]" Section 163.3184(1)(b). A plan amendment is in compliance if it is consistent with this authority and does not cause the plan to be in noncompliance with this authority.
"Fairly Debatable" Standard of Proof
Pursuant to Section 163.3184(9)(a), Petitioner must prove to the exclusion of fair debate that the plan is not in compliance.
The Act does not define what is meant by "fairly debatable." In zoning cases, "`[t]he fairly debatable' test asks whether reasonable minds could differ as to the outcome of a hearing" (citations omitted). Norwood-Norland Homeowners' Association, Inc. v. Dade County, 511 So.2d 1009, 1012 (Fla. 3d DCA
1987). The element of reasonableness imposes certain requirements upon the persons differing as to the outcome. The fairly debatable test requires that the persons reaching different conclusions are informed by relevant facts and law and are capable of analyzing this information in a reasonable manner in order to reach a logical conclusion based exclusively on the applicable facts and law.
Section 163.3184(9) requires that the fairly debatable standard should be applied to the determination of compliance. As noted below, the compliance determination is driven by the various consistency determinations. Once it has been determined, for instance, that a plan is internally inconsistent, the conclusion necessarily follows that the plan is not in compliance, regardless of the standard of proof employed for the compliance determination. Applying the fairly debatable standards merely to the ultimate question of compliance would therefore be meaningless.
At minimum, the fairly debatable standard must be applied to the underlying consistency determinations. Although the Act does not so expressly provide, it does so indirectly. Section 163.3184(10) identifies the standard of proof in cases in which DCA has found the plan not to be in compliance. The evidentiary standard in such cases is intended to be more adverse to the local government than the evidentiary standard in Section 163.3184(9) cases, as here. The sole application of the fairly debatable standard in Section 163.3184(10) cases is to the determination of internal consistency. Because Section 163.3184(9) cases are intended to be governed by a standard of proof more favorable to the local government, the City should receive the benefit of the application of the fairly debatable standard to the internal consistency determination, as is the case in Section 163.3184(10) proceedings. There is no basis for treating the internal consistency determination differently, in this respect, from other consistency determinations, which should also be governed by the fairly debatable standard.
The question remains whether the fairly debatable standard should be applied to determining the meaning of what is in the plan. There is normally no dispute whether a plan contains a specific provision. With some frequency, however, it is not clear whether the plan contains a specific objective or specific analysis. Although there is no affirmative authority for this conclusion, in the absence of any other standard of proof, the fairly debatable standard applies to determinations of the contents the plan in Section 163.3184(9) proceedings.
IV. Meanings of "Consistency"
In addition to questions of standing and jurisdiction, the issues in this case require consideration of the subject plan amendment and its effect on the plan in the following respects: consistency with various criteria set forth in the Act and Chapter 9J-5 involving specified data and analysis and objectives and policies, internal consistency, and consistency with the regional plan and state comprehensive plan. 15/
Regardless of the evidentiary standard or the levels to which it is applied, it is necessary to determine the meanings of "consistency" as applied to consistency with the criteria of the Act and Chapter 9J-5, internal consistency, and consistency with the regional plan and state comprehensive plan. The Act defines what is meant by consistency with the state and regional plans. However, the Act does not define what is meant by internal consistency or consistency with the other criteria of the Act and Chapter 9J-5.
Section 163.3177(10)(a) defines "consistency" solely for the purpose of determining whether the plan is consistent with the state and regional plans. For these consistency determinations, the plan is consistent if it is "not in conflict with" the relevant plan and "take[s] action in the direction of realizing goals or policies" of the relevant plan. In making these determinations, the state or regional plan "shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plan ...." Id.
The Act describes internal consistency as "coordination" among the several elements. Section 163.3177(2). Internal consistency also means that the elements are "related" to each other. Section 163.3177(9)(b).
The statutory definition of consistency with state and regional plans must be modified when applied to questions of internal consistency. The "not in conflict with" portion of the definition is suitable. A future land use policy that conflicts with a conservation policy typically results in internal inconsistency.
However, the remainder of the statutory definition is not applicable to internal consistency determinations. There is no reason to insist that all objectives and policies of a plan "take action in the direction of realizing" the other objectives and policies of the same plan. Unlike the situation in which provisions of different plans are compared, an objective in the conservation element of a plan should not be required to take action in the direction of realizing an objective in the public facilities element of the same plan. Without furthering each other, the conservation objective or public facility objective may each pursue its respective goal. The meaningful question is whether the two objectives are in conflict with each other; if not, they are coordinated, related, and consistent.
One approach to determining consistency with the other criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "minimum criteria" 16/ language. Under this approach, the failure to satisfy any single requirement of Sections 163.3177 and 163.3178 or criterion of Chapter 9J-5 results in a finding of inconsistency.
Another approach to determining consistency with the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "consistency" language. Under this approach, the plan is first examined under the "minimum criteria" approach. If no criterion is left unsatisfied, then the plan is consistent with Sections 163.3177 and 163.3178 and Chapter 9J-5. If, as is often if not invariably the case, the plan fails to satisfy one or more of these criteria, further analysis must be undertaken before determining that the plan is not consistent with applicable statutory and regulatory criteria.
Borrowing the statutory definition of consistency as applied to comparisons with state and regional plans, the "consistency" approach would permit a finding of consistency if the plan as a whole were not in conflict with, and took action in the direction of, realizing the criteria unsatisfied by the plan. This approach would require, among other things, consideration of the purposes of the unsatisfied criteria in light of the entire plan, the Act, and Chapter 9J-5.
The "minimum criteria" approach is supported by several references in the Act and Chapter 9J-5 to these criteria as "minimum requirements" or "minimum criteria." See Sections 163.3161(7) and 163.3177(9) and Rule 9J-5.001, although Section 163.3177(9) also refers to "criteria" without the modifier, "minimum." Rule 9J-5.001 adds: "[a]s minimum criteria, these criteria are not intended to prohibit a local government from adopting ... a ... plan which is more ... strict." The rule says nothing about adopting a plan less strict than the minimum criteria.
The "consistency" approach is supported by the language in the Act and Chapter 9J-5 that a plan must be "consistent with the requirements" of Sections 163.3177 and 163.3178 and Chapter 9J-5. Section 163.3184(1)(b). Similarly, Rule 9J-5.002(1) requires consistency merely with Sections 163.3177 and 163.3178 and Chapter 9J-5, and not with any "minimum criteria." If truly "minimum criteria," they should be "satisfied" or "met," but these terms are not used in the Act or Chapter 9J-5 with reference to the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 with one exception inapplicable to the present case. 17/
In one instance, the Act expressly endorses more flexibility than exists in the "minimum criteria" approach. The determination whether the plan is consistent with the criteria requiring certain detailed data must be based on such factors as the government's "complexity, size, [and] growth rate." Rule
9J-5.002(1). Expressly approving this rule, Section 163.3177(10)(i) provides:
[DCA] shall take into account the factors delineated in rule 9J-5.002(2) ... as it applies the rule in specific situations with regard to the detail of the data and analysis required.
The language of the Act favors the "consistency" approach over the "minimum criteria" approach. The "consistency" approach derives its support from the critical provision of the Act defining "in compliance." By contrast, the "minimum criteria" approach derives its support from less operative sources within the Act--a legislative declaration 18/ and a legislative directive to DCA regarding rulemaking. 19/
Adopting the "consistency" approach may emphasize flexibility over predictability, at least until the emergence of guidelines for the application of the consistency test with regard to the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5. However, the Act tacitly endorses similar flexibility in the determinations of consistency with the state and regional plans.
Under the "consistency" approach to Sections 163.3177 and 163.3178 and Chapter 9J-5, each unsatisfied criterion must be carefully considered to determine its function in light of the Act and Chapter 9J-5 as a whole. Then the relationship between the plan as a whole and the unsatisfied criterion, in light of its role within the Act and Chapter 9J-5, must be examined to determine whether, among other things, the plan conflicts with the unsatisfied criterion, the plan takes action in the direction of realizing the unsatisfied criterion, and the plan is related to, coordinated with, and, ultimately, consistent with the unsatisfied criterion.
Consistency with Criteria of Data and Analysis
Issues 2-6 recite the material portions of Chapter 9J-5 concerning specified data and analysis that Petitioner alleges as grounds for a determination of noncompliance. Based on the ultimate findings of fact set forth in Paragraph 54 above, the plan amendment is consistent with these criteria of Chapter 9J-5 in light of the data and analysis accompanying the original plan and the subject plan amendment.
Consistency with Criteria of Objectives and Policies
Issues 7-24 recite the material portions of the Act and Chapter 9J-5 concerning specified objectives and policies that Petitioner alleges as grounds for a determination of noncompliance. Based `on the ultimate findings of fact set forth in Paragraph 55 above, the plan amendment is consistent with these criteria of the Act and Chapter 9J-5 in light of the operative provisions of the original plan, as well as the plan amendment.
Consistent with the criterion of Rule 9J-5.012(3)(b)6., the plan contains an objective to direct population concentrations away from known or predicted coastal high-hazard areas. Some question exists whether the plan amendment is, or even must be, consistent with the Legislative intent that "plans [shall] protect human life and limit public expenditures in areas that are subject to destruction by natural disaster." However, resolution of these two issues is unnecessary due to the finding of internal inconsistency between the plan amendment and Conservation Objective 14, which is discussed below.
Internal Consistency
Issue 25, which is based upon the provisions of Section 163.3177(2) and Rule 9J-5.005(5) regarding internal consistency, states that the plan amendment is inconsistent with four plan provisions, including Conservation Objective 14. Based on the ultimate findings of fact set forth at Paragraph 56 above, the plan amendment is consistent with the cited plan provisions, except Conservation Objective 14, which is to direct population and development landward of the coastal high hazard area.
The first legal issue in assessing the consistency of the plan amendment with Conservation Objective 14 is to determine the densities permitted on the Subject Parcel before and after the plan amendment. On its face, the plan amendment allows a density of 15 dwelling units or 40 hotel/motel rooms per acre. The Deed Restrictions, which attempt to reduce the hotel/motel density to
30 room per acre, are legally invalid for several reasons.
First, in a plan amendment review case, the densities in the plan or amendment may not be contradicted by deed restrictions not incorporated by reference into the plan. One obvious reason to prohibit such case-by-case "planning," which frustrates an important Legislative purpose of requiring "comprehensive" planning, is that agreements with individual landowners (or prospective landowners) are not necessarily accompanied by the same procedural safeguards accompanying plan amendments. For instance, "planning" by deed restrictions may not include public participation or DCA review of the restrictions or their later modification or release.
In addition, the owners of the part of the Subject Parcel west of Azure Lane no longer want to sell the property. The sales contract was not produced at the hearing, so it is unclear whether the owners can be required to
make specific performance. If not, or if money damages rather than specific performance were the remedy for a contract breach, the plan designation for Lot
5 and the east 1/2 of Lot 4 would, following annexation, be unaffected by the Deed Restrictions. Thus, the allowable density on the part of the Subject Parcel west of Azure Lane would be 40 rooms per acre.
A related problem with the Deed Restrictions arises out of the failure to produce the contract. Unless expressly providing to the contrary, the contract is freely assignable. There is no assurance that the grantor of the Deed Restrictions will ever take title to the Subject Parcel, even if its present owners agree to sell. If the contract were assigned to a bona fide purchaser without notice of the Deed Restrictions, which show no evidence of having been recorded, then the Deed Restrictions would not be enforceable, and the 40 room per acre density would apply to the entire Subject Parcel.
The Deed Restrictions are ineffective even if the closing took place as to the entire parcel with the grantor as the purchaser. It is well- established in Florida that "[r]estrictive covenants are to be strictly construed in favor of the landowner and the free use of his property." Moss v. Inverness Highlands South and West Civic Association, Inc., 521 So.2d 359 (Fla. 1st DCA 1988)(holding that an adult congregate living facility does not violate a deed restriction limiting use of the land to "residential purposes only"). Generally, a deed operates only to convey an interest that is existence at the time of the execution of the deed. See, e.g., van Pelt v. Estate of Clarke, 476 So.2d 746 (Fla. 1st DCA 1985). In Florida, estoppel has been applied sparingly to divest the grantor of an after-acquired interest. See, e.g., Murray v. Newsome, 111 Fla. 193, 149 So. 387 (1933)(holding that the lien of a second mortgage extinguished by the foreclosure of the first mortgage is not revived by operation of estoppel through after-acquired title when the defaulting mortgagor reacquires the property).
Thus, the Deed Restrictions do not place any density restrictions on the Subject Parcel presently, as the grantor does not own the property. Nor do the Deed Restrictions ensure the imposition of any density restrictions on the Subject Parcel even if the grantor acquires the property. It can be concluded with certainty that, at present, the density restrictions do not run with the land, as represented in the Deed Restrictions, because they have not been recorded. Shunk v. Palm Beach County, 420 So.2d 394 (Fla. 4th DCA 1982)(restrictive covenants do not run with the land unless recorded in the chain of title, possibly only in the deed of conveyance). Therefore, the density reductions cannot run with the land, even if the Deed Restrictions were recorded prior to the conveyance to the grantor of the restrictions.
Prior to the extension of planning jurisdiction by the City over the Subject Parcel, and thus the date on which the plan amendment actually becomes effective, the Subject Parcel is governed by provisions of the County's plan. The County's plan limits development to 30 dwelling units per acre or, most likely, no more than 15 hotel/motel rooms per acre. By contrast, the plan amendment triples the allowable hotel/motel density for the Subject Parcel. Even if the County's plan allowed 30 rooms per acre, the City's plan increases this density by 50%.
The County's plan also imposes two restrictions on development within the Coastal High Hazard Area that will effectively limit density and population within the area if the Florida Department of Natural Resources permits such construction. These restrictions are that the development preserve half of the existing vegetation and limit impervious surface to 45%. In contrast, the
City's plan provides less substantial protection to vegetation and stormwater runoff and no such protection aimed specifically to development within the Coastal High Hazard Area. Heightening the differences in treatment of the coastal high hazard area in the two plans, the City's plan promises to require compliance only with "reasonable" conditions imposed by the Florida Department of Natural Resources.
Based on the conclusions of law set forth in the preceding paragraphs and the ultimate findings of fact set forth in Paragraphs 57-61 above, the plan amendment is not in compliance with the Act and Chapter 9J-5. The amendment is inconsistent with Conservation Objective 14 based on the effect of the plan amendment upon the portion of the Subject Parcel within the Coastal High Hazard Area, as compared to the present treatment of this portion of the Subject Parcel in the County's plan.
Consistency with Regional Plan
Issue 26 recites two policies of the Regional Plan that Petitioner alleges as grounds for a determination of noncompliance. Based on the ultimate findings of fact set forth in Paragraph 62 above, the plan amendment, in light of the operative provisions of the original plan, is consistent with these policies, giving due regard to the regional policy plan as a whole.
Consistency with State Comprehensive Plan
Issue 27 recites five provisions of the state comprehensive plan that Petitioner alleges as grounds for a determination of noncompliance. Based on the ultimate findings of fact set forth in Paragraph 63 above, the plan amendment, in light of the operative provisions of the original plan, is consistent with these policies, giving due regard to the regional policy plan as a whole.
Based on the foregoing, it is hereby
RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that the subject plan amendment is not in compliance for lack of planning jurisdiction and internal inconsistency between the plan amendment and Conservation Objective 14.
ENTERED this 4th day of March, 1991, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1991.
ENDNOTES
1/ Prior to resting, Petitioner requested leave to amend her petition. Over objection, the undersigned granted leave to amend the petition as to the following issues: Rule 9J-5.006(3)(b)4. (regarding natural resources only); Rule 9J-5. 006(3)(b) 5.; references to Future Land Use Element Objective 9 and Coastal Management/Conservation Element Objective 14 has additional bases of internal inconsistency; Rule 9J-5.012(2)(b); Rule 9J-5.012(3)(b)6.; Rule 9J- 5.013(2)(b)4. (but not as to marine fisheries); Rule 9J-5.013(2)(c)5.; Rule 9J- 5.013(2)(c)6. (as to wildlife habitats and dune system soils only); and Section 187.201(9)(a) and (b)4. and 9. and (10)(b)3. (vegetative species only).
Objections were sustained &as to the request to amend to raise the following issues: Rule 9J-5.006(3)(b)3.; Rule 9J-5.013(2)(c)8.; Section 187.201(9)(b)5.
and (26)(a) and (b)7. and 8.; and Section 163.3177(6)(a), (d), and (g). The undersigned declined on jurisdictional grounds to consider whether the proposed annexation met the requirements of Section 166.041 or 171.044(2). The following
27 issues reflect the substance of all rulings on the pleadings.
2/ The legal issues concerning Petitioner's standing had been resolved by the Department of Community Affairs, which, on November 15, 1990, entered an Order Denying Motion to Dismiss and Remanding Proceeding to Division of Administrative Hearings for Further Proceedings. As to the assertion that Petitioner had failed to comply with the Prehearing Order, the City was granted leave to object to specific witnesses or exhibits on the grounds of prejudice resulting from nondisclosure, but the City did not do so.
3/ This ruling has been modified at Footnote 6 below.
4/ Petitioner's Exhibit 32 was reserved for the East Central Florida Regional Policy Plan. Like Petitioner's Exhibit 31, Exhibit 32 was to have been filed 10 days after the hearing, but was never filed. However, the undersigned is hereby taking official notice of the entire regional policy plan, which is Petitioner's Exhibit 24 in Joyce Wilson, et al. v. City of Cocoa and Department of Community Affairs, DOAH Case Nos. 90-4821GM, 90-4822GM, 90-4824GM, and 90-4825GM.
5/ James B. Young, as vice-President of Seaview Place, Inc., executed on September 5, 1990, a document styled, Deed Restrictions on Real Property. The document incorrectly represents that Seaview Place, Inc. "holds title" to the Subject Parcel. At most, Seaview Place, Inc. has been and remains a potential purchaser pursuant to a sales contract as to some, but not all, of the lots. (The document purportedly attaches deed restrictions to Lot 11, which is owned by Petitioner.) Although never produced at hearing, the sales contract is subject to various contingencies, including apparently annexation, redesignation, and rezoning of the land. To "prevent... future overdevelopment" of the Subject Parcel, Seaview Place, Inc. purportedly restricts construction on the property to no more than 15 condominium or multi-family units per acre or 30 hotel/motel units per acre. The density restriction expressly survives the change of the present zoning classification imposed on the Subject Parcel.
6/ The Future Land Use Map of the County's plan confirms that the Subject Parcel is designated Residential. The affidavit of Jeffrey A. Goulet, who is chief senior planner for Brevard County, was excluded as hearsay, but proffered. (Petitioner's Exhibit 2.) However, hearsay may supplement or explain other admissible evidence. Section 120.58(1)(a), Florida Statutes. Paragraph 5 of the affidavit states that the Subject Parcel is designated Residential in the
County's plan. The ruling at the hearing, which admitted the attached exhibits but excluded the affidavit, is modified to admit the affidavit solely for the purpose of supplementing or explaining the County's Future Land Use Map, which designates the Subject Parcel as Residential.
7/ The Data and Analysis report that "many of the buildings" in the vicinity of the Subject Parcel are seaward of the present Coastal Construction Control Line. However, the Subject Parcel contains only one such building, which is an old single-family residence.
8/ FLUE Policy 4.10 identifies the primary uses within "tourist commercial land uses" as hotels and motels and limits densities to 15 units per acre. FLUE Policy 4.10C. states that "[t]ourist commercial land uses should be located at intersections of major `through-County' transportation corridors with major arterials or roadways of higher classification. These uses should be limited to a 1/4 mile radius from these intersections." FLUE Policy 4.10D. permits tourist commercial land uses in other locations if "such uses are established, and the functions of the natural amenities would not be endangered." It may thus be possible for a tourist commercial land use to be located on the Subject Parcel.
9/ The County's current zoning would allow 30 guest rooms per acre for "boardinghouses and bed and breakfast inns." (Petitioner's Exhibit 2.) The density allowed by a zoning ordinance, especially if the ordinance may be inconsistent with permissible land uses in the comprehensive plan, is irrelevant, although, as noted below, the internal inconsistency determination would not be any different if the County's plan allowed 30 hotel/motel rooms per acre.
10/ Each Issue identified by number in the Ultimate Findings of Fact and Conclusions of Law corresponds to the numbered issues set forth in the Preliminary Statement.
11/ These requirements are set forth in Paragraph 46 above. The City's plan provides generally for the protection of natural features, such as dunes, typically found in a Coastal High Hazard Area. However, the County's plan contains similar provisions. The general protections found in the City's plan therefore do not, when compared to the County's plan, effectively direct population and development away from the Coastal High Hazard Area.
12/ The so-called Deed Restrictions are ineffective for the reasons set forth in the Conclusions of Law at Paragraphs 36-41 below. In Paragraph 4 of its Proposed Recommended Order, DCA agrees, stating: In retrospect, [DCA] herein concedes that the amendment should have been reviewed as having allowed up to 40 transient units per acre. Plans, and amendments thereto, must be evaluated solely by the four corners of the plan; external documents should not be relied upon to evaluate the merits and effects of an amendment.
13/ All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code. All references to the "Act" are to Chapter 163, Part II, Florida Statutes. All references to Chapter 9J-5 are to the Florida Administrative Code.
14/ In Sandstrom v. Leader, 370 So.2d 3, 6 (Fla. 1979), the court stated: "appellees have presented us with an array of acts which ... might be deemed punishable [under a specific statute]. We are constrained by fundamental principles of appellate review to decline appellees' invitation to decide whether these hypothetical acts would fall within the proscriptions [of the
statute]." See also Sarasota-Fruitville Drainage District v. Certain Lands, etc., 80 So.2d 335, 336 (Fla. 1955)("only actual controversies are reviewed by direct appeal. We have repeatedly held that this Court was not authorized to render advisory opinions except [as required or permitted by the Florida Constitution].") and Cottrell v. Amerkan, 160 Fla. 690, 35 So.2d 383, 384 (1948)("An appeal will not be allowed to settle mere abstract questions but only to correct errors injuriously affecting the right of the appellant.")(dictum).
15/ The criteria of internal consistency and consistency with the regional and state plans are among the criteria contained in the Act and Chapter 9J-5. For clarity of analysis, these three topics have been isolated from the other criteria discussed in this recommended order.
16/ The Act refers to "requirements," and Chapter 9J-5 refers to "criteria." As used in the Act and Chapter 9J-5, the two words are synonymous. For simplicity, all references in this Recommended Order to "criteria" or "minimum criteria" include "requirements" or "minimum requirements," as used in the Act.
17/ Rule 9J-5.0055, which became effective November 22, 1989, uses the word "satisfy" four times and the word "met" three times. This rule deals with the critical issue of concurrency.
18/ Section 163.3161(7).
19/ Section 163.3171(9).
APPENDIX
Treatment Accorded Proposed Findings of Petitioner
Adopted or adopted in substance: I, 1-5; II; III; VI, 2; and VIII, 1. Rejected as irrelevant: I, 6 (not pled); VI, 4-7; VII; VIII, 2 and 7; IX,
3-4, and 6.
Rejected as recitation of evidence and subordinate: IV, 1-5; V, 1-11; VI, 3 and 7; VIII, 3 (recitation only) and 6; and IX, 5 (subordinate only).
Rejected as argument: VI, 1.
Rejected as against the appropriate weight of the evidence: VIII, 4 (the County's evacuation time includes response time) and 5; IX, 1 (except for internal inconsistency with Conservation Objective 14), 7, and 8.
Rejected as not finding of fact: IX, 2. Treatment Accorded Proposed Findings of DCA
Adopted or adopted in substance: 1-5, 7, 16 (first sentence), 17, 18 (first
sentence), and 20.
Rejected as against the appropriate weight of the evidence: 6 (The County's plan designates the Subject Parcel as Residential. The first set of Data and Analysis represented incorrectly that the County designated the Subject Parcel as Mixed Use. The second set of Data and Analysis corrected this error. The Future Land Use Map in the County's plan also, on close examination, reveals that the Subject Parcel is designated Residential. The affidavit of X Goulet, although excluded as hearsay, supplements or explains other admissible evidence when it states that the Subject Parcel is designated in the County's plan as Residential.), 9 (first sentence; no binding commitment)(second and third sentences), 16 (all but first sentence; the four larger oceanfront parcels east of Azure Lane obviously include land within the coastal high hazard area because
they straddle the Coastal Construction Control Line) and 18 (all but first sentence).
Rejected as irrelevant: 8 and 9 (second and third sentences). Rejected as legal argument, although adopted as conclusion of law: 9 (last two sentences).
Rejected as subordinate: 10-15 and 19. Treatment Accorded Proposed Findings of City
Adopted in substance: 4 and 5.
Rejected as against the appropriate weight of the evidence: 9 (first two sentences).
Rejected as irrelevant: 9 (all but first sentence).
COPIES FURNISHED:
William Sadowski, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Karen Brodeen, Assistant General Counsel Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100
William E. Weller Post Office Box 1255 Cocoa Beach, FL 32931
Bruce W. Jacobus
Mosley, Jacobus & Wallis, P.A. Post Office Box 1210 Melbourne, FL 32902-1210
Carole C. Pope
P.O. Box 560231 Rockledge, FL 32956-0231
| Issue Date | Proceedings |
|---|---|
| Mar. 05, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 11, 1991 | Agency Final Order | |
| Mar. 05, 1991 | Recommended Order | Plan amendment inconsistent because city lacks planning jurisdiction over parcel & new designation inconsistent with CHHA criterion in law & plans. |
