STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

R. JERRY HARRIS, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 92-6258GM

) DCA Docket No. 91-NOI- TOWN OF MCINTOSH and DEPARTMENT OF ) 4204-(I)

COMMUNITY AFFAIRS, )

)

Respondents. )

) ANNA M. COLWELL, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 92-6259GM

) DCA Docket No. 91-NOI- TOWN OF MCINTOSH and DEPARTMENT OF ) 4204-(I)

COMMUNITY AFFAIRS, )

)

Respondents. )

) THOMAS C. AND MARIE STOTT, )

)

Petitioners, )

)

vs. ) DOAH CASE NO. 92-6260GM

) DCA Docket No. 91-NOI- TOWN OF MCINTOSH and DEPARTMENT OF ) 4204-(I)

COMMUNITY AFFAIRS, )

)

Respondents. )

)

RECOMMENDED ORDER

Notice was provided and on February 2, 1993 in the McIntosh Civic Center, 6th Street and Avenue F, McIntosh, Florida a formal hearing was held in this case. Authority for conducting the hearing is set forth Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioners: R. Jerry Harris, pro se

Post Office Box 107 McIntosh, Florida 32664

Anna M. Colwell, pro se Post Office Box 135 McIntosh, Florida 32664

For Town of

Thomas C. Stott, pro se by Charlsie Stott

5650 Avenue B

McIntosh, Florida 32664

McIntosh: David Wilcox, Esquire

425 Pleasant Grove Road Inverness, Florida 32653

For Department of

Community Affairs: Michael P. Donaldson, Esquire

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100 STATEMENT OF ISSUES

These cases address whether the Town of McIntosh adopted Comprehensive Plan should be found "in compliance" with applicable statutes and rules. See Section 163.3184(9), Florida Statutes.

DOAH Case No. 92-6258GM raises the issue of adequate opportunity to examine the adopted Comprehensive Plan. It also alleges that a change that had been voted by the Town Council had not been placed in the adopted Comprehensive Plan concerning the substitution of the word "suspension" for the proper word "abandonment" at Policy 2.1.4.5. within the text. Maps found at pages 2-11 and 2-17 within the adopted plan are challenged in their depiction of wetlands. The petition challenges the setbacks imposed at page 7-4. Challenge is made to the change in the commercial mobile home park zoning classification which caused a reduction in housing densities. Challenge is made to the depiction of the amount of acreage in the Comprehensive Plan associated with this petitioner.

The petition challenges the statement at page 4-18 concerning interviews with mobile home parks' owners related to the availability of low cost rental property and the overall provision for mobile homes and other low income housing. Further reference is made to low income housing and the alleged inadequacy concerning low income housing associated with Policy 4.1.1.2.

Finally the petition alleges that the sites for group homes cannot be found as they are described in Policy 4.1.1.1.

DOAH Case No. 92-6259GM challenges the future land use classification at page 2-14 in the Comprehensive Plan associated with lake front property as that classification reduces permitted uses for commercial activities.

DOAH Case No. 92-6260GM takes issue with the densities associated with lake front residential property of two units per acre and the affiliated setback requirements for wetlands. The petition also questions the decision to make this property owned by these petitioners lake front residential as opposed to lake front commercial which ostensively would allow these owners to operate a fish camp as two other property owners were permitted to do. Finally, this petition takes issue with whether the Town of McIntosh has responsibility for protecting and conserving Orange Lake, to include the nearby wetlands, in a circumstance where other agencies are alleged to be fulfilling that responsibility.

PRELIMINARY STATEMENT

The Town of McIntosh (McIntosh) adopted its Comprehensive Plan. On July 24, 1992, it was received for review. On September 4, 1992, the Department of Community Affairs (Department) published a Notice of Intent to find the Comprehensive Plan "in compliance."

By petition filed on September 28, 1992, R. Jerry Harris (Harris) challenged the determination finding the Comprehensive Plan "in compliance." The underlying allegations in the challenge are summarized in the Statement of Issues.

On September 28, 1992, Anna M. Colwell (Colwell) filed her petition challenging the determination to find the Comprehensive Plan "in compliance." Again, the issues framed by that petition are summarized in the Statement of Issues.

On September 28, 1992, Thomas C. and Marie Stott (Stott) filed a challenge to the determination finding the adopted Comprehensive Plan "in compliance." The basis for the challenge is described in the Statement of Issues.

The several cases were forwarded to the Division of Administrative Hearings on October 16, 1992 and the hearing ensued on the aforementioned date through a consolidated hearing process.

The parties presented the adopted Comprehensive Plan as a Joint Exhibit No.

1. Harris offered 11 exhibits that are numbered 1 through 11. Exhibits 1, 2, 4, 5, 6, 7, 9 and 11 were admitted. The other exhibits in that series were denied admission. Colwell presented 18 exhibits for admission. Exhibits 1, 2, 3, 8, 9, 10, 12, 13, 14, 15, 16, and 17 were admitted. The other exhibits in that series were denied admission. Stott offered 3 exhibits for admission. Exhibits 1 through 3 were admitted. The Department offered 5 exhibits for admission. Exhibits 1 through 5 by the Department were admitted. At hearing R. Jerry Harris, Anna M. Colwell, Charlsie Stott, Terese Marie Manning (an expert in land use planning), and Richard Nolan testified.

A Prehearing Statement was entered into between McIntosh and the Department, a copy of which is forwarded with the recommended order.

A hearing transcript was not ordered. Therefore, the parties were required to submit proposed recommended orders within 10 days from the date the hearing concluded. Additional time for submitting proposed recommended orders was requested by the petitioners and that request was granted. Consequently, the requirements for preparing a recommended order within 30 days from the date upon which the hearing had been concluded was waived. See Rules 28-5.042 and 60Q- 2.031, Florida Administrative Code. All parties submitted proposed recommended orders. The fact finding suggested by the proposed recommended orders is addressed in an appendix to the recommended order.

FINDINGS OF FACT

1. The Department as the State Land Planning Agency is charged with the responsibility of reviewing the Comprehensive Plans submitted by local governments. Following such review conducted pursuant to Chapter 163, Part II, Florida Statutes, the Department is to determine whether the plan submitted is "in compliance" or "not in compliance" with applicable statutes and rules employed in the review process.

2. McIntosh is a local government which adopted its Comprehensive Plan pursuant to Chapter 163, Part II, Florida Statutes.

   
   

3. The McIntosh Comprehensive Plan was adopted was received by the Department on July 24, 1992. On September 4, 1992, the Department published Notice of Intent to find the Comprehensive Plan "in compliance" with applicable statutes and rules.

   
   

4. McIntosh is a town of approximately 450 acres in size, which had a residential population in 1990 of 411 and was projected to increase population by the year 2000 to 418 people. Single family residential and agricultural land uses are the predominant land uses in the community.

   
   

5. Petitioner Harris owns property within the incorporated limits of McIntosh. He owns and operates Sportsman Cove, a business located on Orange Lake. Portions of Orange Lake are found within the corporate limits of McIntosh where Harris conducts his business. Harris owns blocks 35 and 36 and portions of blocks 37, 53 and 54 within the corporate limits. His business involves 49 licensed mobile home sites and a number of "RV" sites located on approximately 4.648 acres along the shore of Orange Lake. He also operates a fish camp there. When the Comprehensive Plan was being prepared Harris submitted written and oral comments, objections and recommendations pertaining to the plan. He is a person affected by the adopted Comprehensive Plan.

   
   

6. Colwell owns property in the incorporated limits of McIntosh. She owns and operates the McIntosh Fish Camp which has 8 mobile home sites and 5 "RV" sites along the shore line of Orange Lake within the town limits. Colwell submitted written and oral comments, objections and recommendations during the process of review and adoption of the Comprehensive Plan. Colwell is a person affected by the adopted Comprehensive Plan.

   
   

7. The fish camp operations and "RV" sites of Harris and Colwell are classified in the Comprehensive Plan as lakefront commercial.

   
   

8. The Stott's own property in the incorporated limits of McIntosh. That ownership includes blocks 1, 2, 13, 14 and 15 constituted of 13.6 acres, a portion of which is located on the shore of Orange Lake. In 1986 part of their property was used as a restaurant for about a year. The Stott's engaged in a bait business for approximately a year beyond that point. In the past prior to the plan adoption, there had been a fish camp located at blocks 1 and 15 with cabins and camper sites. These blocks are located adjacent to Orange Lake and are classified lake front residential in the Comprehensive Plan. At the time of hearing the property was not being operated as a fish camp. In the past lots 2,

   13 and 14 had been used by the Stott's for unspecified light industry.

   
   

9. The Stotts submitted written and oral comments, objections and recommendations during the plan review and adoption process. The Stotts are persons affected by the adoption of the Comprehensive Plan.

   
   

10. The notice that was provided on September 4, 1992 concerning the intent to find the Comprehensive Plan "in compliance" made mention that the adopted plan would be available for public inspection Monday through Friday, with the exception of legal holidays. The location contemplated for inspection was the McIntosh Town Hall, Clerk's Office, at 5975 Avenue G, McIntosh, Florida. A problem arose concerning the opportunity to inspect the adopted Comprehensive Plan. The problem was occasioned by an illness to the Town Clerk. This

    influenced petitioners' ability to review the adopted plan and to timely submit their challenges to the decision to find the Plan in compliance. Under the circumstances a slight delay in conforming to the 21 day requirement for filing the petitions in challenge to the Comprehensive Plan is acceptable.

    
    

11. With some inconvenience to Petitioners, persons other than the Town Clerk offered assistance in making the adopted plan available for inspection. Nonetheless, petitioners were afforded sufficient opportunity to apprise themselves concerning the contents of the adopted plan when considered in the context of their participation in the overall process for adopting the McIntosh Comprehensive Plan. The complications experienced in reviewing the adopted Comprehensive Plan did not compromise the ability of these petitioners to advance their claims in a setting in which other procedural requirements for plan adoption, review and approval have been met. The inconvenience experienced by the petitioners in reviewing the adopted plan do not evidence a quality of prejudice that should form the basis for deciding that the plan is not in compliance with applicable statutes and rules.

    
    

12. When the Town Council adopted the plan and established Policy 2.1.4.5 it intended to use the word "abandonment" where the written text found within the adopted plan at Page 2-23 uses the word "suspension." This mistake is evidenced by the minutes of the meeting for adoption where a motion was made to change the word "suspension" to "abandonment." In the course of the hearing the attorney for McIntosh stipulated that this was an error and that the written text would be changed to reflect the proper wording. With that change Policy

    2.1.4.5 would read:

    
    

    Provisions in the Land Development Regulations shall discourage the continuance of existing inconsistent land uses within designated land uses. These provisions shall limit the expansion of inconsistent land usage and, upon a 90 days abandonment of the incompatible land use, require reversion to designated land uses.

    
    

13. Petitioner Harris is not satisfied that the Figure 2-6, Page 2-11, which is a map of the wetlands within the incorporated town limits, in the Comprehensive Plan, is accurate. He claims that a lobe, which is an RV site on his property known as site 9C is not within the wetlands as shown on that map. He also takes issue with the designation in Figure 2-9, page 2-17, of the future land map which shows this lobe of property as conservation/open space. He perceives this property at site 9C to be uplands.

    
    

14. By virtue of his own activities in May 1991 in which he arranged to have a survey performed on his property in the incorporated limits of McIntosh, Harris asserts that site 9C was not found to be wetlands then and is not wetlands now.

    
    

15. When McIntosh designated the wetlands in the community through the use of the wetlands map and identified conservation/open space in the future land use map it was acting in accordance with legal requirements incumbent upon it in adopting the Comprehensive Plan. The specific designations of wetlands and conservation/open space areas are based upon appropriate data and analysis. The data was taken from a professionally accepted existing source and was the best available data. The work that was done in preparing the wetland mapping requirements was done by the same consulting firm which Harris had employed in

    May 1991, that is to say Environmental Service and Permitting, Inc. In preparing the wetlands survey for McIntosh the private consulting firm used ground-truthing, as well as a review of wetland mapping data sources to delineate the wetlands. The data consulted included the U.S.D.A. Soil Conservation Service Soil Survey of Marion County, U.S.G.S. Quadrangle maps for the Town of McIntosh, as well as a review of the McIntosh Land Planning Agency Drainage Map.

    
    

16. Although Harris takes issue with the clarity of some of the maps depicting the lobe of property for his site 9C, the adopted plan is acceptable as it describes wetlands and conservation/open space to include his site 9C.

    
    

17. Objective 7.1.1 at Page 7.4 establishes wetland setbacks within the town where it states:

    
    

    The Town of McIntosh shall protect the natural drainage features within and adjacent to the Town limits, by the establishment of the wetland setbacks, and compliance with State Water Quality standards, to be a part of the Land Development Regulation.

    
    

18. In furtherance of this Objective, Policy 7.1.1.1 is set out at page 7-

    4 where it states:

    
    

    Setbacks shall be established from the limit of wetlands landward to buildings, septic tanks and land coverage. The following setbacks shall be a part of the Land Development Regulations.

    1. Buildings shall be set back at a minimum of 75 feet.

    2. Septic tanks and drain fields shall be set back at a minimum of 200 feet.

    3. Impervious areas shall be set back at a minimum of 50 feet.

    4. Drainage Retention Areas shall be set back

    25 feet.

    
    

19. These set backs were arrived at by the Town Council having heard from the petitioners. In the face of remarks by the petitioners made in the adoption process the council reduced the set backs. While no specific data and analysis was offered to support the set backs, they are within limits which would be recommended by the Department to protect the wetlands resources. According to the Department, from a planning viewpoint, the mere existence of wetlands is sufficient to promote protections through the use of set backs. The set backs found within this Comprehensive Plan are appropriate. Moreover, the set backs associated with the protections of wetlands have the additional benefit of protecting Orange Lake, a Class III Outstanding Florida Water Body, entitled to special water quality protection. Protection of that water body is the responsibility of McIntosh in its comprehensive planning, together with other local governments and environmental regulators.

    
    

20. Future land use classifications in the Comprehensive Plan are set out at Page 2-14. Property which abuts Lake Orange is classified as lake front residential and lake front commercial. Lake front residential is defined as:

    [T]his category allows a maximum of 2 units per acre. Dwelling units includes: single family houses and mobile homes. Maximum coverage of 35% and maximum building height of

    35 feet.

    
    

    Lake front commercial is defined as:

    
    

    this category allows fish camps, marinas, and recreational vehicle parks. Maximum coverage of 50% and a maximum building height of 35 feet."

    
    

    These classifications and densities protect natural resources to include the wetlands and Orange Lake and are appropriate.

    
    

21. Petitioners Harris and Colwell may take advantage of the lake front commercial for their fish camp operations and "RV" sites. Stott is not entitled to take advantage of the lake front commercial classification in that her property did not include a fish camp and recreational vehicle operations at the time the plan was adopted.

    
    

22. Petitioners have failed to show to the exclusion of fair debate that the adopted Comprehensive Plan is not "in compliance" with applicable statutes and rules concerning the issues raised in the challenges to the determination to find the Comprehensive Plan "in compliance."

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding in accordance with Section 120.57(1), Florida Statutes.

    
    

24. In accordance with Section 163.3184(1)(b), Florida Statutes, the Department found the McIntosh Comprehensive Plan "in compliance." Petitioners made a timely challenge to that determination. See Section 163.3184(9)(a), Florida Statutes.

    
    

25. The petitioners and the city are affected persons as found in Section 163.3184(1)(a), Florida Statutes.

    
    

26. The hearing conducted and the recommended order to be entered in considering the various petitions challenging the determination that the Comprehensive Plan was "in compliance" is an arrangement in which the plan will be found "in compliance" if the city's determination of compliance is fairly debatable. The standard of proof is called for by Section 163.3184(9)(a), Florida Statutes.

    
    

27. In deciding whether a plan is "in compliance" the requirements of Sections 163.3177, 163.3178 and 163.3191 together with the terms of the State Comprehensive Plan set out in Chapter 187, Florida Statutes, the appropriate regional policy plan and Rule 9J-5, Florida Administrative Code, to the extent that the rule is not inconsistent with Chapter 163, Part II, Florida Statutes, are examined.

    
    

28. Sections 163.3184(3)(4)(5)(6)(7)(8) and (9), Florida Statutes, speak to the transmittal of the proposed plan, inter-governmental review, regional and

    county review, state land planning agency review, local government review, comments by the State Land Planning Agency, and adoption of the plan and Notice of Intent by the State Land Planning Agency, that is to say the Department. In this instance all these procedural requirements have been satisfied. Problems experienced by petitioners in examining the adopted plan were not such that the petitioners were unable to reasonably advance their opposition to the adopted plan, in that the inconvenience to the petitioners was not so prejudicial as to cause the plan to be rejected for reason of a procedural infirmity.

    
    

29. Section 163.3177(6)(a), Florida Statutes, calls for future land use designation in the plan and that the designation be shown in a land use map or map series which should be supplemented by goals, policies and measurable objectives. Those land use categories are defined in terms of the types of uses that are included in the designation and by the need for specific standards related to density and intensity associated with the uses. The future land use plan must be based upon surveys, studies and data related to the area. The land use classifications include residential uses, commercial uses and conservation, among other uses of land.

    
    

30. Section 163.33177(10)(e), Florida Statutes, gives a discussion of certain support data and summaries that are involved in the planning decisions made by the local government. These planning decisions must be based on appropriate data. The methodology used in collection of data and the question of whether the methodology used in employing the data was a professionally acceptable method are issues to be considered in critiquing local government planning. Rule 9J-5.005(2)(a)-(d), Florida Administrative Code, further describes use of data sources and data.

    
    

31. Here the decision on densities within the land use classifications which were challenged by the petitioners and the designation of wetlands conservation areas were supported by data that was professionally applied in adopting the Comprehensive Plan. Although specific data was not presented concerning the set backs associated with the wetlands designation, those set backs were supported in the record made at hearing as consistent practices within the Department's experience. Therefore the set backs are acceptable.

    
    

32. Section 163.3177(2), Florida Statutes, calls for internal consistency within the plan. Moreover Section 163.3177(9)(b), Florida Statutes, requires the Department to enact rules pertaining to consistency of various elements within the plan. The Department responded to that requirement by the enactment of Rule 9J-5.00(5)(a), Florida Statutes. Here the plan in those elements that have been challenged by petitioners is internally consistent.

    
    

33. The petitioners did not prove that the housing element in the plan, especially as it relates to low and moderate income housing, and mobile homes and group homes failed to comply with Section 163.3177(6)(f), Florida Statutes.

    
    

34. In summary, when all legal requirements are examined, the petitioners were afforded appropriate rights to participate in the planning process to include challenges to the determination finding the plan "in compliance." Requisite procedures for plan adoption have been met, together with necessary review and comment by appropriate agencies and procedures were followed by the Department in its decision wherein it found the plan "in compliance." The decisions made by the city in adopting the plan that have been challenged by the petitioners, as discussed in the fact finding, lead to the conclusion that the petitioners have failed to show to the exclusion of fair debate that the

    decisions were inappropriate. Consequently, the Comprehensive Plan is "in compliance" with all applicable statutes and rules.

    
    

35. It has not been shown that the Comprehensive Plan is inconsistent with the state and regional comprehensive plans.

RECOMMENDATION

Based upon the consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a Final Order be entered which finds the Town of McIntosh Comprehensive Plan to be "in compliance" and dismisses the petitions.

DONE and ENTERED this 30th day of March, 1993, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1993.

APPENDIX

The following discussion is given concerning the proposed facts of the parties:

Harris' Facts:

1. This paragraph is not relevant in that it was not alleged in the petition.

2. This paragraph in its various parts concerning available low and moderate income housing and the densities is rejected in its suggestion that the Comprehensive Plan is not acceptable.

3. This paragraph is rejected in its suggestion that the seasonal population for dwelling units affiliated with fish camp operations should cause a reconsideration of the classifications and densities for land use.

4. This paragraph is ejected in its legal conclusion. 5-8 These paragraphs are not relevant in that these

issues were not set out in the petition.

9, 10 To the extent that paragraphs 9 and 10 describe concerns about the treatment in the Comprehensive Plan of wetlands and comment critically on

wetlands protections, the proposed findings of facts are rejected.

Colwell's Facts:

The unnumbered facts proposed are subordinate to facts found, with the exception that the changes in Orange Lake described even if true do not persuade that the wetlands protection of Orange Lake contemplated by the Comprehensive Plan is inappropriate.

Stott's Facts:

1-2 Paragraphs 1 and 2 are subordinate to facts found. 3-5 Constitute legal argument.

6 It is acknowledged that the Orange Lake is used for fishing.

7-11 To the extent that paragraphs 7 through 11 suggest inappropriate identification and protection of the wetlands through the adopted Comprehensive Plan, the proposed facts are rejected.

McIntosh's Facts:

A-E, A-C, A-E Are subordinate to facts found with exception that the word "increase" in fact should be "decrease" when describing residential density.

Department's Facts:

1, 2 Subordinate to facts found.

1. Subordinate to facts found with exception that the reference to the property being within "unincorporated" limits should read "incorporated" limits.

2. - 6 Subordinate to facts found.

1. Subordinate to facts found with exception to the suggestion that the petitioners had to contact city council members to obtain a copy of the adopted plan in the absence of the clerk.

2. - 20 Subordinate to facts found.

1. Not necessary to the resolution of the dispute.

2. - 26 Subordinate to facts found.

COPIES FURNISHED:

R. Jerry Harris

P. O. Box 107 McIntosh, FL 32664

Anna Colwell

P. O. Box 135 McIntosh, FL 32664

Thomas C. Stott Marie Stott

P. O. Box 551 McIntosh, FL 32664

David Wilcox, Esquire

425 Pleasant Grove Road Inverness, FL 32652

Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

Michael P. Donaldson, Esquire 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.

Docket for Case No: 92-006258GM

Orders for Case No: 92-006258GM