STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOYCE WILSON, )
)
Petitioner, )
)
vs. ) CASE NO. 90-4821GM
) CITY OF COCOA and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents. )
) TOMPKINS INVESTORS GROWTH )
FUND I, LTD., )
)
Petitioner, )
)
vs. ) CASE NO. 90-4822GM
) CITY OF COCOA and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents. )
) JOHN N. FOUNTAIN, JR., )
)
Petitioner, )
)
vs. ) CASE NO. 90-4824GM
) CITY OF COCOA and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents. )
) MESSIAH EVANGELICAL LUTHERAN ) CHURCH OF COCOA, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 90-4825GM
) CITY OF COCOA and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held in Cocoa, Florida, on January 14-15, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioners:
Robert C. Apgar
Haben & Culpepper, P.A.
P.O. Box 10095 Tallahassee, FL 32302
Leonard Spielvogel Jason Hedman
Spielvogel & Goldman, P.A.
P.O. Box 541366
Merritt Island, FL 32954-1366 For Respondent Department of Community Affairs:
Kenneth D. Goldberg, Assistant General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100 For Respondent City of Cocoa:
Bradly Roger Bettin Amari, Theriac, Roberts & Eisenmenger, P.A.
96 Willard St., Suite 302 Cocoa, FL 32922
STATEMENT OF THE ISSUE
The issue in this case is whether the subject plan amendment, which changes the future land use designations of parcels owned by each of the Petitioners, is not in compliance for the reasons set forth in the petitions.
PRELIMINARY STATEMENT
On May 22, 1990, the City of Cocoa adopted amendments to its comprehensive plan. On July 13, 1990, the Department of Community Affairs published its Notice of Intent to find the plan amendments in compliance. Petitioners timely
filed petitions challenging the determination of compliance because the plan amendments, as pertinent to Petitioners, changed the permitted uses of their land.
Petitioners raise six general issues:
As to the land owned by Petitioners Wilson and Tompkins, whether the notice and advertisements for the transmittal hearing were consistent with the applicable criteria of Section 163.3184(15)(c), Florida Statutes, requiring a location map that indicates the area covered by a proposed land use change.
Whether the explanation offered at the hearings for redesignating Petitioners' parcels was consistent with the criteria of Section 163.3181 and Rule 9J-5.004 requiring effective public participation and consideration of, and response to, public comments.
Whether the designations are supported by data and analysis.
Whether the designations are consistent with the criteria of Section 163.3177(6)(a) and Rule 9J-5.006(3)(b)2. and 7. encouraging the redevelopment of blighted areas and discouraging urban sprawl.
Whether the designations are internally consistent with Future Land Use Element Objective 1.1, Future Land Use Policy 1.1.2, Public Facilities Element Goal 4.1, and
Public Facilities Element Objectives 4.1.2 and 4.2.5.
Whether the designations are consistent with Policies 51.10, 51.12, and 57.10 of the East Central Florida Regional Policy Plan and Goals 16 and 18 and Policies 1 and 3 of Goal
16 of the state comprehensive plan.
At the hearing, Petitioners called six witnesses, the Department of Community Affairs called one witness, and the City of Cocoa called three witnesses. Petitioners, the Department of Community Affairs, and the City of Cocoa offered into evidence 24, 2, and 2 exhibits, respectively. One exhibit was marked as a Hearing Officer exhibit. All exhibits were admitted into evidence.
No transcript was ordered. Each party filed a proposed recommended order.
Treatment of the proposed findings is detailed in the appendix.
FINDINGS OF FACT
The Parties
Each Petitioner submitted oral or written objections during the review and adoption proceedings culminating in the adoption of the plan amendment at issue.
Petitioner Wilson owns about 2.5 acres on the north 1/ side of State Route 524 and east side of Westminster Drive. The Wilson parcel, which is vacant, contains about 300 feet of frontage on State Route 524 and about 250 feet on Westminster Drive.
Petitioner Tompkins owns about 3.5 acres on the north side of State Route 524 and west side of Westminster Drive. The Tompkins parcel, which is vacant, contains about 600 feet of frontage on State Route 524 and about 250 feet on Westminster Drive.
The Wilson and Tompkins parcels lie between State Route 524 and Cocoa North, which is a large residential subdivision. The existing land uses near the area, which is a growth center in Cocoa, are largely low density residential, and there remains considerable vacant land. There are no commercial uses within the Cocoa North subdivision. The only access to Cocoa North is by way of State Route 524, using Westminster Drive or one of two other roads.
The nearest convenience store is about two-thirds of a mile east of Westminster Drive on State Route 524. An I-95 interchange lies about 1.8 miles to the west of Westminster Drive on State Route 524. The nearest property to the west designated Commercial is at the northwest corner of the Tenzel property, which is discussed below. The Commercial parcel on the Tenzel property is about one and one-quarter miles from Westminster Drive.
Petitioner Messiah Church owns about 2.3 acres on the east side of U.S. Route 1 about 300 feet north of Michigan Avenue. Petitioner Fountain owns about
0.72 acre on the east side of U.S. 1 about 1200 feet north of the Messiah Church's property. The Messiah Church parcel contains a church. The Fountain parcel is vacant.
The Messiah Church and Fountain parcels lie between U.S. Route 1 and a wide strip of existing low density residential uses bordered on the east by the Indian River. The narrower strip containing the Messiah Church and Fountain parcels is located in an underutilized area characterized by a mix of existing commercial uses. For example, a flea market occupies the west side of U.S. Route 1 across from the Messiah Church parcel.
Respondent Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing plans under Chapter 163, Part II, Florida Statutes.
Respondent the City of Cocoa (Cocoa) is a local government required to adopt a revised comprehensive plan under Sections 163.3164(12) and 163.3167, Florida Statutes.
History of Cocoa Comprehensive Plan
Cocoa adopted its comprehensive plan and transmitted it to DCA on October 4, 1988. DCA issued a notice of intent to find the plan in compliance. A petition was filed challenging the determination of compliance and requesting a hearing under Section 163.3184(9), Florida Statutes.
Following an administrative hearing, an order recommended that DCA forward the case to the Administration Commission for entry of a final order determining the plan not to be in compliance. The parties then negotiated a settlement agreement. Pursuant to the agreement, the Administration Commission
entered a final order and later an amended final order determining the plan not to be in compliance and identifying the remedial amendments necessary to attain compliance.
The designations challenged by Petitioners are part of a set of plan amendments consisting of the remedial amendments ordered by the Administration Commission, amendments required to settle a federal court action in which Cocoa was a defendant, and amendments having nothing to do with either legal proceeding. The challenged designations fall in the last category.
The Future Land Use Map (FLUM) in the original plan adopted in 1988 designated as Commercial a strip of land containing the Wilson and Tompkins parcels. The entire strip runs 2700 feet along State Route 524, which is a two lane undivided minor arterial, and extends about 250 feet deep. The Wilson and Tompkins parcels constitute about 40% of the strip and are located at its extreme western end. State Route 524 operates at a level of service C and is projected to remain at this level of service though 1997.
The FLUM designated as High Density Residential a strip of land containing the Messiah Church and Fountain parcels. The entire strip, which is generally quite shallow, runs about 3400 feet along U.S. Route 1, which is a four lane divided principal arterial. The Messiah Church and Fountain parcels constitute about 20% of the strip and are located in its northern half. U.S. Route 1 is operating at level of service D and is projected to be operating at level of service E by 1992 and level of service F by 1997.
Transmittal and Adoption Process
On October 30, 1989, the Planning and Zoning Board, which acts as the local land planning agency (LPA), conducted a public meeting at which it discussed at length new public participation procedures that it was considering adopting. Specific provisions were prepared following the meeting, circulated at the next LPA meeting on November 13, discussed, revised somewhat, and finally adopted.
On November 21, 1989, the LPA met to discuss remedial amendments necessary to comply with the requirements of the Amended Final Order of the Administration Commission. Pursuant to a contract with Cocoa, the East Central Florida Regional Planning Council (Regional Planning Council) had prepared a draft set of amendments for review by the LPA.
At the beginning of the November 21 meeting, the city attorney stated that the purpose of the meeting was to obtain information and comments from the public. He explained that he and city staff recommended that the LPA defer any formal action on the proposed amendments until their next scheduled meeting on November 27. A representative of the Regional Planning Council was in attendance to assist in the discussion.
The proposed amendments drafted by the Regional Planning Council did not change the designations of the parcels owned by any of the Petitioners. In fact, according to the minutes, none of the four parcels nor either of the two strips containing the parcels was even mentioned at the November 21 meeting.
Following a very short meeting on November 27 to discuss remedial amendments, the LPA next met on November 30. By this time, the Regional Planning Council had prepared a "final draft" of proposed remedial amendments. Following discussion, the LPA voted to recommend the proposed amendments to City
Council. Toward the end of the meeting, the Vice Chairman moved that the strip containing the Messiah Church and Fountain parcels be designated Low Density Residential. The motion passed.
At a regular meeting on November 28, the City Council adopted Resolution 89-37, which provides for public participation procedures in connection with the comprehensive planning process. The ordinance calls for advertising of transmittal and adoption hearings in accordance with applicable law, the encouragement of oral or written public comment, and responses from the City Council or its designee.
At a special meeting on December 5, the City Council considered the proposed amendments that had been recommended by the LPA. At this meeting, the City Council voted to change the designations for both strips, including all of Petitioners' parcels to Low Density Residential. The vote on the strip containing the Messiah Church and Fountain parcels was unanimous. The vote on the strip containing the Wilson and Tompkins parcels was four to one.
Neither DCA nor Cocoa staff originally suggested the new designations for Petitioners' parcels. The new designations were not prompted by any changes to the original data and analysis. It does not appear that the Regional Planning Council, which also assisted in the preparation of the original plan, proposed that the parcels originally be designated Commercial, but it does not appear that the Regional Planning Council made the suggestion for a change in designation.
At a special meeting on December 11, the City Council considered the proposed amendments, including the new designations for Petitioners' parcels, as well as the amendments to settle the pending state and federal litigation. No one appeared on behalf of any of the Petitioners to object to the proposed designations.
However, in response to the objections of an owner of other property on the south side of State Route 524, whose property was also proposed for redesignation as Low Density Residential, representatives of Cocoa explained that the redesignation on both sides of State Route 524 was based on Cocoa's recent experience with DCA on unrelated plan amendments involving what is known as the Tenzel property. The city attorney indicated that staff was concerned that the objections lodged by DCA to the plan amendments involving the Tenzel property, which Cocoa was at the same time annexing, could possibly be made against the Commercial designation along both sides of State Route 524. The city manager also mentioned his concern that the plan be internally consistent.
The Tenzel property consists of 157 acres on the south side of State Route 524 about one mile west of Westminster Drive. Cocoa transmitted the proposed Tenzel amendments to DCA on March 13, 1989. The proposed amendments designated 60 acres, including its entire State Route 524 frontage, Commercial and the remainder Industrial. Cocoa was planning to annex the Tenzel property, which was at the time of the transmittal in unincorporated Brevard County.
In its Objections, Recommendations, and Comments (ORC) dated July 6, 1989, DCA objected that, among other things, the proposed designation was inconsistent with Future Land Use Element (FLUE) Policy 1.2, which is to discourage new linear commercial development. Instead, DCA recommended that new commercial uses should be clustered. DCA also complained that the designation was not supported by data and analysis and the portion of the FLUM covering the Tenzel property did not depict natural resources.
On September 6, 1989, Cocoa annexed the Tenzel property and amended its plan. The adopted plan amendments designated only 10 acres Commercial and the remaining 147 acres Residential. 2/ The property designated Commercial was limited to only about half of the available frontage and was restricted to the northwest corner, which is farthest from the Tompkins and Wilson parcels and closest to the I-95 interchange at State Route 524 to the west. The adoption package contained considerable data and analysis concerning the newly annexed property. DCA issued its notice of intent to find the plan amendment in compliance on October 25, 1989.
Notwithstanding the Tenzel-related concerns expressed at the December
11 hearing of the City Council, an owner of about 2.5 acres of land on Westminster Drive near State Route 524 objected to the redesignation of his land from Commercial to Low Density Residential. He argued that the land was unsuitable for residential uses due to traffic and other factors. In response, the city manager stressed the possibility of conflict with the plan if strip commercial were "proposed." 3/ With one member changing his vote as to the strip containing the Wilson and Tompkins parcels, the City Council voted three to two to transmit to DCA the proposed amendments, including the new Low Density Residential designations for the two strips containing the four parcels of Petitioners.
The sole issue concerning the advertisements for the transmittal hearings of December 5 and 11 is their failure to identify the Wilson and Tompkins parcels as the subject of proposed land use changes. The advertisement for the December 11 hearing states in bold, capital letters at the top: "Notice of Change of Land Use and Comprehensive Plan." Following a brief paragraph announcing the time and place, the first item to be discussed is: "Proposal to change the use of land within the areas shown on the map below." Immediately below this sentence is a map of the entire city. Beside the map in one block is the statement: "Landuse changes to the future landuse map." A second block below the first states: "Black shaded areas to low density residential." The shading covers the High Density Residential strip including the parcels owned by the Messiah Church and Fountain, but omits the Commercial strip including the parcels owned by Wilson and Tompkins.
The map for the December 11 hearing was published on December 4. The change of designation for the Wilson and Tompkins parcels was first proposed at the City Council hearing the following day.
By letter dated March 22, 1990, DCA transmitted its ORC on the proposed plan amendments. The ORC informed Cocoa that DCA had no objections, recommendations, or comments on the transmitted amendments.
Following receipt of the ORC, the LPA met on May 2, 1990, to review staff's response. During the meeting, the LPA discussed the Wilson parcel with her attorney, who objected that the Commercial designation would render the property useless due to its shallow depth. The attorney pointed out that a residential designation was impractical at that location; to the east, on the north side of State Road 524, townhouses had remained unsold for a long time.
A motion not to change the Commercial designation on the Wilson and Tompkins parcels, while changing the designation for the rest of the strip to Low Density Residential, was seconded and discussed. It failed by a vote of four to three. At this point, the city attorney suggested that condominiums already in the area would be incompatible with Low Density Residential. The
discussion acknowledged the protests of surrounding homeowners to the Commercial designation. A motion, seconded, to designate the entire strip north of State Route 524 as High Density Residential failed by a four to three vote. This vote was immediately followed by a motion, seconded, to designate the entire strip north of State Route 524 as Medium Density Residential. This motion passed by a five to two vote.
The same attorney also represented the Messiah Church at the LPA meeting. He stated that the church intended to sell the property and the new designation was disadvantageous to a sale. In the ensuing discussion, it was noted that central sewer had yet to reach this site.
A motion, seconded, was made to designate the Messiah Church parcel High Density Residential. The motion failed by a five to two vote. A motion, seconded, to designate the entire strip along the east side of U.S. Route 1 Low Density Residential passed unanimously. At the conclusion of the meeting, the LPA voted to adopt the amendments, subject to changes made at the meeting, and send the package to the City Council.
The City Council meeting of May 8 was announced by a large display newspaper advertisement, which was published on April 27. The advertisement contained a map shaded to indicate that the designation of the two strips in question was proposed to be changed to Low Density Residential. During the meeting, the city attorney discussed the redesignation of the strip along State Route 524 from Low Density Residential, as it was shown in the transmittal amendments, to Medium Density Residential, as had been recommended by the LPA at its May 2 meeting. An attorney representing Wilson and Tompkins argued in favor of the Commercial designation given the property in the original plan.
The city manager responded that the property was reexamined as a result of Cocoa's recent experience with DCA on the Tenzel plan amendments. Trying to avoid the appearance of strip commercial zoning, staff favored the proposed recommendation. The city attorney likewise warned the City Council to consider as a matter of policy the concern of DCA to avoid urban sprawl and strip commercialism.
Nearby residents were almost uniformly in favor of a residential designation. Wilson complained that she purchased the property after being told by Cocoa that she could use it for commercial purposes. She also argued that 15 units per acre would allow 30 homes, which would add to the congestion in the area.
After everyone had a chance to speak, a motion, seconded, called for designating the Wilson and Tompkins parcels as Commercial with the remainder of the strip designated Medium Density Residential. The motion failed three votes to two. A motion, seconded, to accept the recommendation of the LPA passed three to two.
After other parcels were discussed, the city attorney raised the redesignation as Low Density Residential of the High Density Residential strip along the east side of U.S. Route 1. The attorney representing Messiah Church asked that the City Council consider the church property separately because it was for sale and worth more in its present designation as High Density Residential. He argued that buffering provisions of the plan would be violated by a Low Density Residential designation. Concerning his property, Fountain
agreed with the attorney's reasoning and informed the City Council that no home had been built along U. S. Route 1 from Sharpes to south Rockledge for over 30 years.
Following discussion, during which the Mayor noted that the Regional Planning Council had recommended that the property be designated Low Density Residential, a motion, seconded, to leave the strip High Density Residential failed three votes to two. A motion, seconded, to approve the recommendation of the LPA passed by the same margin. At the conclusion of the meeting, the City Council approved on first reading the ordinance adopting the plan amendments.
Following another display newspaper advertisement indicating proposed land use changes for the two strips, the City Council again met on May 22, 1990. A minister of the Messiah Church praised the City Council for its recent decisions and announced that the church had decided that to meet the needs of the community it would minister to persons whose needs were presently unmet, like transients, mentally retarded persons, handicapped persons, and residents of halfway houses. Church officials had decided that such a ministry could be carried out from the present location with the proposed designation, which nonetheless remained an example of bad planning in their opinion.
Addressing the strip north of State Route 524, the attorney representing Wilson and Tompkins objected to the absence of representatives from the Regional Planning Council despite the fact that they had been responsible for drafting the plan amendments. The city attorney advised that the Regional Planning Council had originally recommended that these parcels be designated Low Density Residential, but the City Council, as it was then constituted, decided to change the designation to Commercial in the original plan. The city manager again justified the decision as to the Wilson and Tompkins parcels based on DCA's objections to the transmittal amendments for the Tenzel property.
After discussion on the State Route 524 strip concluded, the attorney for Messiah Church objected to the proposed redesignation from High Density to Low Density Residential. Again protesting the absence of the Regional Planning Council planners, he asked for an explanation of this action. The city manager responded that staff's concerns involved compatibility with existing uses and recommendations of citizens in the area. The city attorney added that the central sewer lines ended south of the Messiah Church parcel. Various persons spoke on both sides of the issue.
After discussion of other plan issues, the City Council adopted Ordinance 15-90, which includes the plan amendments that, among other things, redesignate the Commercial strip containing the Wilson and Tompkins parcels to Medium Density Residential and the High Density Residential strip containing the Messiah Church and Fountain parcels to Low Density Residential.
The failure of the published map to depict the four parcels or the two strips undoubtedly accounts for the absence of the Petitioners from the second transmittal hearing. However, the arguments of similarly situated landowners were presented at the hearing. Moreover, five months passed between the transmittal and adoption hearings. Nothing in the record suggests than any Petitioner could have accomplished more in a few days before the second transmittal hearing that he, she, or it accomplished in the several months that passed before the adoption hearings.
All Petitioners complain that the inadequacy of explanations received at the hearing for the redesignations deprived them of effective public participation. Generally, they received responses to their demands for explanations.
Several reasons emerge from the record for the redesignation of Petitioners' parcels. As to the Wilson and Tompkins parcels, Cocoa staff officials expressed concerned about the appearance of strip commercial designations. This explanation is difficult to justify objectively because the Commercial designations probably could not have been challenged by DCA in the subject plan amendments. DCA's objections to the transmittal plan amendments on the Tenzel property were not relevant to the Commercial designations given these four parcels, especially if taken in isolation from the strips of which they were a part. It is of course possible that, given Cocoa's recent experience in federal and state review of its land use planning efforts, beleaguered staff and local officials chose to exercise an abundance of caution.
As to the Messiah Church and Fountain parcels, Cocoa staff and officials expressed concern about the unavailability of central sewer. However, the concern, at least as voiced personally by the Mayor at the May 8 City Council hearing, was not so much for the protection of natural resources as for the protection of nearby homeowners from the expense of tying in to central sewer lines if they were extended through the High Density Residential strip. Transcript of May 8 hearing, pages 48-49.
The Mayor's concern points to the most compelling explanation for the new designations for all four parcels. Each designation was driven by political pressure from residents, which, to some extent in this case at least, may be characterized in the more appealing terms of concerns about surrounding land use compatibility. The forces of neighborhood preservation confronted the forces of development and, in this encounter, the former prevailed by a bare majority of the City Council.
The evidence fails to establish to the exclusion of fair debate that the above-described facts are not consistent with the applicable public participation criteria.
Data and Analysis in Support of Designations
Cocoa did not submit new data or analysis when it submitted the adopted plan amendments. However, data and analysis transmitted with the original plan, as well as the Tenzel amendments, bear on the new designations.
More pertinent to the Wilson and Tompkins parcels, the data and analysis note:
Neighborhood commercial uses of low density and intensity should be located within neighborhoods or central to several residential clusters. Such a locational strategy would produce the beneficial effects of reducing the time and distance to neighborhood commercial, making trips quicker, easier, and more economical.
Background Analysis, FLUE, page 1-26.
At the same time, the data and analysis predict significant traffic impacts on State Route 524 as the impact of new residential developments is felt. Background Analysis, Traffic Circulation Element, page 2-16.
On the other hand, another locational recommendation in the data and analysis is for the central business district, which is south of all four parcels, to serve as "the community focal point providing a mixture of retail and services." Background Analysis, FLUE, page 1-26.
Projecting a population increase of nearly 4000 persons from 1986 to 2000, the data and analysis report that there is generally enough land available for residential needs. Background Analysis, Housing Element, p. 3-15. The analysis concludes that County will need about 309 acres for residential development through 2000. Background Analysis, FLUE, page 1-26. Additional data and analysis accompanying the Tenzel plan amendments lower this amount to 130.6 acres, at least as to single family residential. Tenzel Data and Analysis, Part
II. However, a corresponding increase in projected population probably should have accompanied the Tenzel plan amendments because they involved an annexation.
Although the data and analysis provide little useful information concerning the amount of acreage designated, rather than zoned, residential, there is no evidence on which to base a conclusion that changing the designations of the State Route 524 strip from Commercial to Medium Density Residential and the U.S. Route 1 strip from High Density Residential to Low Density Residential defy the data and analysis regarding the need for residential land.
The data and analysis project that 385 acres will need to be devoted to commercial uses by 2000. Background Analysis, FLUE, page 1-26. In 1987, about 276 acres were in commercial use. Table 1-2, Background Analysis, FLUE, page 1-6. Although the data and analysis do not indicate the number of vacant or developed acres designated Commercial under the plan, Tables 1-3 and 1-4 indicate that about 800 acres are zoned commercial. Background Analysis, FLUE, page 1-7 and 1-11. The acreage zoned commercial and acreage designated Commercial are probably about the same. Table 1-4 indicates that 170 acres zoned commercial are vacant and suitable for development.
If Cocoa requires another 100+ acres for commercial uses in addition to the 276 acres already in commercial use, the designation of 800+ acres as Commercial is ample to meet this need. Thus, the removal of a Commercial designation from the 15-acre strip, of which the Wilson and Tompkins parcels are a part, does not defy the data and analysis.
The fairest conclusion that can be drawn from the data and analysis is that Cocoa suffers no deficiency, in terms of projected needs in the year 2000, in land designated Commercial or in either of the relevant residential categories.
Pertinent to the Messiah Church and Fountain parcels, the data and analysis indicate that the City's wastewater treatment facility was to be expanded in November, 1988. Background Analysis, Capital Improvements Element, page 9-11. The project was completed, and the wastewater facility has a considerable reserve capacity.
Presently, the Messiah Church and Fountain parcels, and the surrounding area, are served by septic tanks. The data and analysis indicate, however, that the City is committed to a program of gradually extending central
sewer services to areas within the city not currently served. Background Analysis, Wastewater Element, page 3-5. More recently, the Tenzel analysis states: "A policy of phasing out septic tanks has been in place in order to protect the environment." Tenzel data and analysis, Section IV, Wastewater.
A rough estimate of the cost to extend sewer lines the necessary one- quarter mile to the area of the Messiah Church parcel is $500,000. Although it might be more feasible for the developer of a High Density Residential project to provide the funds to extend sewer lines, the feasibility is not clear given a project on a 2.3 acre parcel in an underutilized part of town. In any event, Cocoa has demonstrated a commitment to expanding the central sewer system, require connections, and finance the expansion by special assessments.
The data and analysis would support either designation. The evidence thus does not establish to the exclusion of fair debate that the designations are not supported by the data and analysis.
Consistency of Designations with Criteria of Land Use Suitability Analysis, Encouraging Redevelopment of Blighted Areas, and Discouraging Urban Sprawl
For the four parcels, the land use suitability analysis accompanying the original plan supports the designations adopted in the plan amendments.
This issue has been considered above with respect to the issue involving supporting data and analysis. Given the changes in designations from Commercial and High Density Residential to Medium and Low Density Residential, respectively, no additional land use analysis was required for the reasons set forth in the Conclusions of Law corresponding to the preceding section.
The evidence fails to establish to the exclusion of fair debate that the designations are not supported by a land use suitability analysis.
For the reasons set forth in the Conclusions of Law corresponding to this section, no findings are necessary to address the issue of the consistency of the plan amendment with the criteria of Chapter 163, Part II, and Chapter 9J-
5 concerning redevelopment of blighted areas and urban sprawl. Findings concerning urban sprawl in the context of internal consistency are in the following section. Although not alleged as a basis for a finding of internal inconsistency, the issue of redevelopment of blighted areas has been considered in the following section as well, for the reasons set forth in the corresponding Conclusions of Law.
Consistency of Designations with Plan Provisions Encouraging Redevelopment of Blighted Areas
and Discouraging Urban Sprawl
FLUE Objective 1.1 is to adopt land development regulations to "discourage the proliferation of urban sprawl." Goal 1 of the Public Facilities Element is to provide public facilities in a manner that "protects investments in existing facilities and promotes orderly, compact urban growth, and discourages urban sprawl." Similarly, Public Facilities Element Objective 4.1.2 is to coordinate the provision of public facilities with the FLUE "to discourage urban sprawl and maximize the use of existing facilities."
Other provisions relied upon by Petitioners to show internal inconsistency are Public Facilities Objective 4.2.5 and FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6.
Public Facilities Objective 4.2.5 is to adopt land development regulations that
prohibit the installation of additional septic tanks within the incorporated city limits will be discouraged except when it is determined that the use of a septic tank system is the most efficient, cost effective and environmentally compatible alternative. [sic]
FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6 provide that land development regulations shall be based upon the following locational criteria:
Provisions of new residential uses shall be adequately balanced with the availability
of residential support services including community facilities, shopping, schools, parks and open space, and transportation services.
The City will encourage infill development in areas of existing viable housing, provide for redevelopment in blighted areas or areas in transition, and encourage new housing development in appropriate areas where community services exist or are programmed to occur.
Residential areas shall be buffered from major transportation arteries and from incompatible non-residential uses.
Residential areas should be served by sidewalks and, where practical, bikeways with convenient access to recreation, shopping, and schools.
FLUE Policy 1.1.2 Commercial Areas Paragraph 2 4/ provides:
New commercial uses shall be discouraged from linear commercial development and shall be encouraged to develop in clusters, with coordinated parking facilities, and with frontage roads where practical.
Resulting in most cases from ineffective or no land use planning, urban sprawl is the extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard development pattern in which land uses are not functionally related to each other. Common patterns of the premature land development characteristic of urban sprawl are the ribbon pattern, leapfrog pattern, and concentric circle pattern.
In the ribbon pattern, development not functionally or proximately related to other non-urban development in the area extends in ribbons or strips along certain roads and away from urban development.
In the leapfrog pattern, development not functionally or proximately related to other non-urban development in the area leaps from urban development so as to leave significant amounts of rural, agricultural, or other undeveloped or sparsely developed land between the existing urban development and the scattered leapfrog development. The concentric circle pattern is similar except that the development not functionally or proximately related to other non-urban development in the area assumes the pattern of concentric circles, such as along rural roads bypassing an urban area, and is characteristically more exclusively low-density residential.
Urban sprawl typically interferes with one or more of four general objectives of effective land use planning: 1) promotion of the efficient use of land in the development of new, and maintenance of existing, viable mixed-use communities; 2) protection of natural resources in rural, agricultural, or other undeveloped or sparsely developed areas; 3) protection of agricultural lands and uses in rural, agricultural, or other undeveloped or sparsely developed areas; and 4) promotion of the efficient provision to both urban and non-urban areas of public facilities and services, such as water, sewer, roads, schools, police, fire, drainage, and other infrastructure, whether provided by public or private entities.
The long strip of Commercial along State Route 524 suggests the presence of commercial sprawl along a thoroughfare. By removing the Commercial designation, Cocoa eliminates this type of sprawl. On the other hand, with respect to the Wilson and Tompkins parcels, Cocoa North resembles another example of sprawl. The introduction of compatible neighborhood commercial uses would tend to mix the uses with an immediate impact of relieving some traffic on State Route 524, as residents could make small purchases at, say, a convenience store located at State Route 524 and Westminster Drive.
However, the solution adopted by Cocoa for the Wilson and Tompkins parcels, although possibly not the only one available under the circumstances, is consistent with the provisions of the plan to discourage urban sprawl. When compared to the prospect of the entire strip remaining designated Commercial, Cocoa's solution represents an improvement in terms of urban containment.
The reduction of density for the strip east of U.S. Route 1 has few evident sprawl implications. To the extent this action may focus more dense residential development in the central business district or elsewhere where central sewer is already provided, the new designation serves the objectives to discourage urban sprawl. In any event, the new designation is not inconsistent with the sprawl provisions of the plan.
The puzzling septic tank policy is probably intended to read that septic tanks are prohibited except when the use of a septic tank is the most efficient, cost effective, and environmentally compatible solution. The new designation for the strip east of U.S. Route 1 is not inconsistent with this policy.
Consequently, the evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with the provisions in the plan to discourage urban sprawl.
FLUE Objective 1.3 is to eliminate "[e]xisting conditions of slum and blight . . . by the year of 2000." FLUE 1.1.2 Redevelopment Area Paragraph 1 designates the Redevelopment Area, which is depicted by map and excludes the two strips containing Petitioners' parcels, as an area of slum or blight pursuant to
Chapter 163, Part II, Florida Statutes. Paragraph 3 adds that the City shall redevelop the central business district, which is within the Redevelopment Area, as a viable business district consistent with surrounding historic resources, residential neighborhoods, and natural resources.
There is no evidence of blight as to the Wilson and Tompkins parcels, notwithstanding the marketing problems experienced in connection with the nearby townhouses. Concerning the Messiah Church and Fountain parcels, a haphazard collection of largely commercial uses, such as a flea market, have accumulated over the years along U.S. Route 1 in the vicinity of the two parcels. The immediate area appears not to be economically vibrant, but no evidence establishes that the area is blighted. Further, no evidence suggests that the area's economic fortunes would be enhanced if the strip were designated High Density Residential, notwithstanding the Messiah Church's intended use of the parcel if it is not given a High Density Residential designation.
The evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with plan provisions to encourage the redevelopment of blighted areas.
Consistency of Designations with Regional and State Plans
Regional Plan Policy 51.12 states:
The "infilling" of existing urban areas and the renovation of blighted areas shall be encouraged in areas where existing wastewater transmission and treatment capacity are available for allocation, or funding has been committed for the provision of sufficient capacity.
Emphasis should be placed on encouraging development activities within the urban service area boundaries as identified in local government comprehensive plans. Techniques of encouragement include but are not limited to:
Provision of public or private facilities and services in strict accordance with adopted growth management objectives and policies . .
Providing incentives for restoration or rehabilitation of blighted areas with existing sewer service through various actions such as but not limited to rezoning to other uses or higher densities
Strengthening and preserving existing residential areas through the
planned provision of public services, zoning and other techniques.
Regional Plan Policy 57.7 5/ specifies the "designation of . . . activity centers . . . as a means of planning appropriate and balanced land uses on a scale and at an intensity consistent with the availability of public facilities and services . .
Regional Policy Plan 51.10 limits the use of septic tanks
in areas where conditions are suitable for installation and effective operation, provided that central sewer system services are not available due to lack of available treatment capacity, accessible facilities, or other considerations . . .. The following minimum criteria and procedures shall be
adhered to . . . where regional resources may be adversely affected:
* * *
3. The decision to require phasing out of septic tank systems where centralized sewer systems are available should be based solely upon the availability of those centralized systems and not upon any other consideration of ground water hydrology and current performance levels of septic tanks.
For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan.
Section 187.201(18)(a), Florida Statutes (the State Plan) is for Florida to "protect the substantial investments in public facilities that already exist and . plan for and finance new facilities . . . in a timely, orderly, and efficient manner."
Goal 16 of the State Plan is to direct development "to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner." The first three policies under Goal 16 are:
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 population and commerce.
Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats.
Enhance the liveability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational
activities.
In addition to the above-cited provisions relied upon by Petitioners, Policy 3 of Goal 5 of the State Plan is to increase the supply of safe, affordable, sanitary housing for low- and moderate-income persons by, in part, "recycling older houses and redeveloping residential neighborhoods."
For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan.
CONCLUSIONS OF LAW
Jurisdiction, Standing, Standard of Proof, and "In Compliance"
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Sections 120.57(1) and 163.3184(9), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Petitioners are "affected persons" within the meaning of Section 163.3184(1)(a) and thus have standing to file the petitions challenging DCA's determination that the County's plan is in compliance.
Petitioners are required to prove to the exclusion of fair debate that the plan is not "in compliance." Section 163.3184(9)(a). "In compliance" is "consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5 .
. ., where such rule is not inconsistent with chapter 163, part II." The issues raised by the petitioners in the present case require determinations of consistency with various provisions of Chapter 9J-5 and the Regional Plan.
Public Participation
Rule 9J-5.004(1) provides that the local government and local planning agency "shall adopt procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the comprehensive plan ..." The procedures "shall include" provisions to
assure that real property owners are put on notice, through advertisement in a newspaper of general circulation in the area or other method adopted by the local government, of official actions that will affect the use of their property.
The procedures must also "assure the consideration of and response to public comments."
Other provisions require that the local government comply with the adopted procedures described in the preceding paragraph. Rule 9J-5.005(8) provides that plans and plan amendments shall be considered and adopted "pursuant to the procedural requirements of Sections 163.3161-.3215, including the following:"
(c) The comprehensive plan . . . or amendment shall be considered and adopted in accordance with the procedures relating to public participation adopted by the governing body and the local planning agency pursuant to Section 163.3181 . . . and [Rule]
9J-5.004.
(e) The comprehensive plan . . . and amendments shall be adopted by ordinance and only after the public hearings required by [Section] 163.3184(15)(b) . . . have been conducted after the notice required by [Section] 163.3184(15)(b) and (c) . .
Section 163.3181(1) expresses the Legislative intent for "the public [to] participate in the comprehensive planning process to the fullest extent possible" and local governments to adopt procedures to provide "effective public participation . . . and . . . real property owners with notice of all official actions which will regulate the use of their property." The Section concludes: "The provisions and procedures required in this act are set out as the minimum requirements towards this end." Section 163.3181(2) states in part that the procedures shall provide for "consideration of and response to public comments."
Section 163.3184(15)(c) provides:
If the proposed comprehensive plan or plan amendment changes the permitted uses of land or changes land-use categories, the required advertisement shall be [a certain size, etc.] The advertisement shall be in substantially the following form:
NOTICE OF CHANGE OF LAND USE
The [local government] proposes to change the use of land within the area shown in the map in this advertisement.
A public hearing on the proposal will be held on [date and time] at [place].
The advertisement shall also contain a geographic location map which clearly indicates the area covered by the proposal. The map shall include major street names as a means of identification of the area.
As to the effectiveness of the public participation, the law provides that persons shall have a chance to comment upon the plan and the local government shall consider and respond to these comments. No criterion governing public participation requires that the consideration or response meet any minimum qualitative standard, unless the response is so meritless as to have precluded consideration of the comment. But this is not the case here.
The City Council considered the objections of all Petitioners. In the case of Wilson and Tompkins, the consideration resulted in a change from Low Density Residential to Medium Density Residential. The responses did not satisfy Petitioners and were largely, if not exclusively, driven by political pressures from residents concerned about land use compatibility. However, the City Council gave responses and obviously considered what Petitioners or their counsel had to say.
As is implied by the fairly debatable standard of proof, local land use planning remains a legislative process. Local governments retain considerable discretion to make local planning decisions and to base those decisions on local considerations, such as land use compatibility. Chapter 163, Part II, and Chapter 9J-5 demand only that the planning process be consistent with the public participation criteria and the planning product be consistent
with criteria such as the economic feasibility of a plan, concurrency in the plan between the availability of public facilities and the impacts of development, data and analysis supporting planning objectives and policies, internal consistency within the plan, and consistency of the plan with the state and regional plans.
The criteria of public participation, which are procedural in nature, should not be confused with substantive criteria of Chapter 163, Part II, and Chapter 9J-5. For example, a substantive criterion is that operative plan provisions shall be supported by data and analysis. Nothing in the law subjects the local government's consideration and response to so rigorous a standard.
The local government must merely consider and respond to public comments. The environment of a public hearing dictates that the responses to complex questions will not approach the plan or data and analysis in terms of comprehensiveness or even sophistication.
A good example in this case is the Mayor's comments concerning the extension of central sewer into the neighborhood east of the Messiah Church and Fountain parcels and abutting the Indian River. Expressing what he stressed was a personal opinion, the Mayor indicated that his objective was not to extend sewer. This opinion is contrary to data and analysis, including that accompanying the Tenzel amendments, if not also operative provisions of the plan. However, the opinion represents a response. Nothing in the law requires that the opinion reflect the provisions of a plan or its data and analysis, or even that the opinion be informed. Otherwise, an adoption hearing might take weeks to complete, as each moderately well-conceived question would require a response reflecting considerable research into the local government's plan and data and analysis, as well as other sources such as Chapter 163, Part II, Chapter 9J-5, judicial decisions, final orders from the Administration Commission and DCA, and the plans of other local governments.
The consistency determination requires that the omission of the Wilson and Tompkins parcels from the advertised map be evaluated under the circumstances of the case and the purpose of the map criterion. First, the omission occurred at the transmittal stage. Similarly situated landowners presented at the second transmittal hearing some of the arguments later presented by Wilson and Tompkins. More importantly, Wilson and Tompkins had another five months after the transmittal of the proposed change in designation to try to change a vote. In the meantime, the designation of their parcels remained Commercial. The facts thus suggest that Wilson and Tompkins suffered little if any real prejudice from the omission.
The purpose of the map criterion is obviously to ensure that landowners receive timely notice of proposed changes to their land use designation. The "minimum requirements" language of Section 163.3181(1) must be interpreted consistent with this purpose. To a large extent, timely notice was received, based on the facts set forth above.
The omission from the map was not due to neglect, but rather the timing of the proposal to change the designation of the strip containing the Wilson and Tompkins parcels. The proposal was first made after the advertisement had run for the December 11 hearing. The omission in fact resulted from the dynamics of the hearing process.
Section 163.3184(15)(b)1. requires the publication of the advertisement about seven days before the hearing. Although, in retrospect, the problem would have been avoided if Cocoa had scheduled the two transmittal hearings further apart, the statute requires only one transmittal hearing.
Cocoa appears to have been pursuing the commendable policy of broadening the opportunity for public participation by conducting a second transmittal hearing.
Therefore, independent of the lack of prejudice described in the preceding paragraphs, the legal question can be reduced to whether, at a hearing, the local government can decide to change the designation of parcels not previously proposed for change and thus not previously depicted on a published map. Section 163.3184(15)(c) imposes the map criterion only "[i]f the proposed comprehensive plan or plan amendment changes the permitted uses of land or changes landuse categories." Strictly speaking, no such proposal existed for the Wilson and Tompkins parcels on May 4 when the map was published in the advertisement for the second transmittal hearing.
A contrary interpretation of the quoted language of Section 163.3184(15)(c) unnecessarily poses the notice criterion against the criterion of effective public participation. Read broadly, the "permitted uses of land" language of the statute might be triggered by a plan amendment addressing such issues as drainage, wetlands, uplands, and other natural resources or functions, as well as any public facility for which concurrency is required. 6/ If so, a contrary application of the map criterion of Section 163.3184(15)(c) would effectively restrict the hearing to whatever had been proposed at least one week in advance of the hearing in order for the required map to have been published.
Such an application of the map criterion would limit public participation because any new plan provisions affecting the permitted uses of land, if developed during discussion at the hearing, would have to be deferred until the necessary advertising could be completed. Of course, deferral, especially of proposals advanced at the hearing by members of the public, would become the norm because, at the next hearing addressing the proposals first raised at the prior hearing, important new issues would again have to be deferred. The means by which to avoid these problems is to interpret the word "proposed" in the map criterion as meaning proposed at least a week in advance of the hearing, which is, after all, the point in time that the advertising provisions of Section 163.3184(15)(c) address.
Of course, Cocoa could have avoided the problem by publishing a map with shading over the entire city. This fairly common practice meets the letter of Section 163.3184(15)(c), but ironically provides less notice to landowners. When a local government routinely shades its entire map for all hearings, the owner of land for which a change in designation has in fact been proposed in advance of the hearing is deprived the specialized notice that Section 163.3184(15)(c) was intended to provide. If no new land uses may be proposed at a hearing, well-advised local governments will invariably publish maps that shade their entire jurisdiction, which would render the mapping criterion of Section 163.3184(15)(c) useless.
Effective public participation requires that the local government and participants at a hearing have the needed flexibility to address completely the issues that may arise at the hearing. Comprehensive planning is a vital exercise in which a community makes decisions that impact all affected persons in financial and other critical terms. Plan amendments changing permitted land uses or land use categories, if proposed sufficiently in advance of a hearing, must be advertised and depicted by a map. However, plan amendments of similar
significance that are first proposed at a hearing must not be barred by an unnecessarily restrictive reading of the map criterion of Section 163.3184(15)(c), especially in the context of a consistency determination. Affected persons failing to attend hearings, especially adoption hearings, do so at their own risk. Their failure to participate should not restrict the participation of those persons who, involving themselves in the planning process, assist in developing at the hearing new planning strategies for their community to follow.
As noted in the findings of fact, the public participation and advertising were consistent with the criteria of public participation set forth in Rule 9J-5.004 and Sections 163.3181 and 163.3184(15)(c).
Data and Analysis in Support of Designations
Rule 9J-5.005(2)(a) states that all operative provisions of a plan "shall be based upon relevant and appropriate data."
Unless a local government is annexing land over which it has not previously exercised planning jurisdiction, nothing in Chapter 163, Part II, or Chapter 9J-5 requires the addition of new data or analysis to support plan amendments. If the original data and analysis support the amendment, the amendment is consistent with the criterion of supporting data and analysis.
Nothing in Chapter 163, Part II, or Chapter 9J-5 implies that only one land use may be supported by the data and analysis. Here, the data and analysis support either a commercial or residential use. Little land is required to accommodate Cocoa's projected need for either category of land. The conversion of the small amounts of acreage involved in this case from Commercial and High Density Residential to Medium and Low Density Residential, respectively, does not, from a planning perspective, have much of an effect on the need calculations.
The Wilson and Tompkins parcels may have served the recommendation of the analysis for neighborhood commercial, depending on the magnitude of the commercial development placed on the parcels. However, the convenience store east on State Route 524 also serves this need, although residents of Cocoa North are required to travel on State Route 524 to get there. In addition, the elimination of the Commercial designations may effectively redirect some commercial development into the central business district, for which revitalization is recommended by the analysis.
The data and analysis concerning sewer facilities would support any land use designation that will lead to the elimination of the septic tanks serving the Messiah Church and Fountain parcels. Regardless of the designation of the strip east of U.S. Route 1, Cocoa has committed itself to extending central sewer throughout the urban area through its data and analysis and, at least indirectly, through operative plan provisions such as those undertaking the protection of the waters of the nearby Indian River.
As noted in the findings of fact, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with the criterion of supporting data and analysis.
Consistency of Designations with Criteria of Land Use Suitability Analysis, Encouraging Redevelopment of Blighted Areas, and Discouraging Urban Sprawl
Rule 9J-5.006(2) identifies, in relevant part, the following analysis to be included to support the FLUE:
An analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use . .
An analysis of the amount of land needed to accommodate the projected population, including:
The categories of land use and their densities or intensities of use,
The estimated gross acreage needed by category, and
A description of the methodology used.
An analysis of the need for redevelopment including:
Renewal of blighted areas, and
Elimination or reduction of uses inconsistent with the community's character and proposed future land uses.
Rule 9J-5.006(3)(b)7. is for a policy to "[d]iscourage the proliferation of urban sprawl." Rule 9J-5.006(3)(b)2. is for a policy to "[e]ncourage the redevelopment and renewal of blighted areas." Section 163.3177(6)(a) states that the FLUE shall be based on, among other things, "the need for redevelopment."
As noted in the findings of fact, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with the criterion of supporting land use analysis. In this case, the analysis is part of the data and analysis accompanying the original plan. Similarly, provisions in the original plan are consistent with the criteria of objectives discouraging urban sprawl and encouraging renewal of blighted areas.
No plan amendment is required to contain provisions that attain consistency with all the criteria contained in Chapter 163, Part II, and Chapter 9J-5; otherwise, a local government would be compelled to restate the entire plan each time it adopted a plan amendment. The nature of the criterion and the plan amendment are critical. For instance, all plan provisions, including amendments, must be supported by data and analysis. A plan amendment that is unsupported by the data and analysis is inconsistent with this criterion.
On the other hand, a plan amendment may not address or have any material impact on hundreds of other criteria in Chapter 163, Part II, or Chapter 9J-5. In such a case, the plan amendment itself does not have to be consistent with the criteria. And in cases in which the effect of a plan amendment is to cause the plan, as amended, to become inconsistent with applicable criteria, the plan amendment is probably vulnerable on the ground that it is internally inconsistent with the provisions of the plan that attained consistency with such criteria. 7/
VI. Consistency of Designations with Plan Provisions Encouraging Redevelopment of Blighted Areas
and Discouraging Urban Sprawl
The operative provisions of a plan must be internally consistent. Section 163.3177(9)(b) and Rule 9J-5.005(5)(a). As noted in the findings of fact, the evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with any of the plan provisions cited by Petitioners. VII. Consistency of Designations with Regional and State Plans
In determining whether the operative provisions of a plan are consistent with the Regional Plan and State Plan, consistency means that the local plan "is not in conflict with," and "takes action in the direction of realizing goals or policies of," the Regional and State Plans. Section 163.3177(10)(a). The Regional and State Plans must 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 plans." Id.
As noted in the findings of fact, the evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with the Regional and State Plans.
Based on the foregoing, it is hereby
RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petitions of the four Petitioners.
ENTERED this 8 day of August, 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 8 day of August, 1991.
ENDNOTES
1/ Actually, State Route 524 runs in a northeast-southwest direction, and the Wilson property is on the north and west side of the highway. Consistent with the practice of the parties, State Route 524 has been treated as though it runs east-west.
2/ The adoption ordinance establishes the 147 acres as "part of the Residential category." There is no such designation in the Cocoa plan. The ordinance appears to rely on the zoning to establish permitted density. Based on the accompanying documents, the intent appears to have been to designate the 147 acres as Low Density Residential, which generally allows 7 units per acre. FLUE Policy 1.1.2, Low Density Residential Paragraph 3.
3/ As noted above, the Commercial designation was not being proposed in the plan amendment, but had been contained in the original plan.
4/ Thus paragraph was amended in the same plan amendments as part of a settlement of a pending federal court case against Cocoa.
5/ Petitioners refer to Regional Plan Policy 57.1 in their proposed recommended order. However, this policy involves DRI thresholds and is obviously irrelevant to the present case.
6/ If the "permitted uses of land" language were read to add little or nothing to the "changes in landuse categories" language, a contrary application of the map criterion would make little sense. In such a case, a proposal first made at the hearing to change the designation of two acres from Medium Density Residential to Low Density Residential would require advertising. However, a proposal to adopt a more restrictive wetlands policy or a more rigorous level of service standard for a road, which would have a greater impact on a greater area of land than the redesignation of two acres, could be proposed initially at the hearing.
7/ This case does not involve a plan that, prior to amendment, was determined to be in compliance despite the omission from the plan of any provision, say, discouraging urban sprawl, so that the plan lacks a provision with which the plan amendment could be inconsistent.
APPENDIX
Treatment Accorded Proposed Findings of Petitioners
Adopted or adopted in substance: 1-20 (first two sentences); 22 (first sentence); 24; 27; 28; 31-32; 34; 36-49 (except that all units must be expressed in terms of acres to correspond with the data and analysis); 50 (except second sentence; the sources of support are addressed in the recommended order); 51; 52 (first sentence); 53; 54 (last sentence); 55 (last sentence); 56 (first sentence); 60 (to the extent that the relative need for commercial and residential uses are addressed in the recommended order); 62 (except third and last sentences which are unsupported by the appropriate weight of the evidence); 66; 72 (second sentence); 73 (except for last sentence); 76-77; 79 (first three
sentences); 80 (first sentence); 81.
Rejected as subordinate: 20 (last two sentences); 22 (second sentence); 25; 26
(second sentence); 35.
Rejected as irrelevant: 21; 23; 33; 67.
Rejected as unsupported by the appropriate weight of the evidence: 26 (first sentence); 52 (except first sentence); 54 (except last sentence); 56 (second sentence); 57-59; 61; 63 (first sentence); 64; 65 (except for quote from plan); 68-71 (except last sentence which is adopted); 72 (first sentence); 73 (last sentence) -75 (except that the plans have been considered as a whole); 78 (and also repetitious); 79 (fourth sentence); 80 (second and third sentences); 82 (and also repetitious); 83.
Rejected as recitation of evidence: 29; 30 (although the political component in the decisions to redesignate has been addressed in the recommended order); 55 (except last sentence); 63 (second sentence).
Treatment Accorded Proposed Findings of Cocoa
Adopted or adopted in substance: I; II; III (except B 5-7 which are rejected as subordinate or irrelevant); IV; V (except A 1-2 as to the Tenzel amendments, which were accompanied by data and analysis; and D 1, 6, and 7, which are rejected as subordinate although the Messiah Church and Fountain parcels are served by septic tanks); VI; VII B (except 6 and 7, although 7 d is adopted) and second B [beginning at page 26] (except 3).
Rejected as recitation of evidence: VII A, B 6-7 (except d), and second B [beginning at page 26] 3.
Rejected as irrelevant: VII B 7 e-f. Treatment Accorded Proposed Findings of DCA
Adopted or adopted in substance: 1-4; 11-14; 16-29; 33-39; 42; 43 (although the clause after the semicolon is irrelevant); 44 (although the expansion has already been completed); 47; 49- 51; 56; 59-62; 64-65; 67 (as to the Messiah
Church and Fountain parcels); 68; 70-86; 89-93; 95-96.
Rejected as legal argument: 5-10; 48; 69.
Rejected as subordinate: 15; 31-32; 40-41; 45; 52-55; 57-
58; 87-88.
Rejected as recitation of evidence: 30; 63.
Rejected as unsupported by the appropriate weight of the evidence: 46; 66; 67 (as to Wilson and Tompkins parcels); 94.
COPIES FURNISHED:
Kenneth D. Goldberg, Assistant General Counsel Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100
Robert C. Apgar Paul H. Amundsen
Haben & Culpepper, P.A.
P.O. Box 10095 Tallahassee, FL 32302
Leonard Spielvogel Jason Hedman
Spielvogel & Goldman, P.A.
P.O. Box 541366
Merritt Island, FL 32954-1366
Richard S. Amari Bradly Roger Bettin
Amari, Theriac, Roberts & Eisenmenger, P.A.
96 Willard St., Suite 302 Cocoa, FL 32922
William E. Sadowski, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Sep. 13, 1991 | Final Order filed. |
| Aug. 16, 1991 | Petitioners' Exceptions to Recommended Order filed. (From Robert Apgar) |
| Aug. 08, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 1/14-15/91. |
| Feb. 19, 1991 | Notice of Filing Amended Proposed Recommended Order; Proposed Recommended Final Order; Cover letters to Clerk and REM from B. Bettin filed. |
| Feb. 14, 1991 | Petitioners Proposed Recommended Order filed. |
| Feb. 14, 1991 | Department of Community Affairs Proposed Recommended Order filed. |
| Feb. 14, 1991 | Position Summary of Respondent, City of Cocoa w/(unsigned) Proposed Recommended Final Order; Notice of Filing Proposed Recommended Order, City of Cocoa filed. (from Bradly Roger Bettin) |
| Jan. 17, 1991 | Letter to REM from Robert C. Apgar (re: filing PRO) filed. |
| Jan. 17, 1991 | Exhibit (1-notebook); Exhibit 20a&b filed. (From Robert C. Apgar) |
| Jan. 16, 1991 | CASE STATUS: Hearing Held. |
| Jan. 14, 1991 | (Respondent) Notice of Taking Deposition; Pre-Trial Stipulation; Deposition of Howard M. Landers filed. (From Bradly Roger Bettin) |
| Jan. 11, 1991 | Pre-Trial Stipulation (unsigned) filed. |
| Jan. 11, 1991 | Subpoena Ad Testificandum (3); Subpoena Duces Tecum filed. (From Robert Apgar) |
| Dec. 18, 1990 | Amended Notice of Hearing sent out. (hearing set for Jan. 14-16, 1991: 10:00 am: Cocoa) |
| Dec. 18, 1990 | Order Denying Request for Summary Determination and Granting Request to Amend Petition sent out. |
| Dec. 14, 1990 | Petitioners' Joint Motion For View filed. (From Paul Amundsen) |
| Dec. 06, 1990 | Petitioenr Tompkins' Motion For Leave to Amend Petition and to Join aParty; Affidavit Of Tompkins Investors' Growth Fund I, LTD filed. (From P. H. Amundsen) |
| Dec. 04, 1990 | Notice of Filing Affidavit & Affidavit of John N. Fountain, Jr. filed. (from P. H. Amundsen) |
| Nov. 29, 1990 | Petitioners' Motion For Summary Determination That Amended Land Use Designations in The Comprehensive Plan Violate Chapter 163, Florida Statutes w/Appendix (2 Vols) filed. (From P. Amundsen) |
| Sep. 06, 1990 | Notice of Hearing sent out. (hearing set for Dec. 10-14, 1990: 10:00am: Cocoa) |
| Aug. 31, 1990 | (Petitioner) Notice of Substitution of Counsel filed. (From Kenneth D. Goldberg) |
| Aug. 27, 1990 | (Petitioners) Response to Pre-Hearing Order filed. (From Robert C. Apgar) |
| Aug. 27, 1990 | Response to Pre-Hearing Order filed. (From Robert C. Apgar) |
| Aug. 23, 1990 | (Respondent) Answer to Petition For Administrative Hearing and Affirmative Defenses filed. (Bradly Roger Bettin) |
| Aug. 15, 1990 | Prehearing Order sent out. |
| Aug. 10, 1990 | PPF's sent out. |
| Aug. 03, 1990 | Referral Letter:Petition for ADministrative Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 11, 1991 | Agency Final Order | |
| Aug. 08, 1991 | Recommended Order | Plan amendment consistent with criteria of public participation, supporting data analysis, land use suitability, discouraging urban sprawl, etc. |
