STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RESOLUTION TRUST CORPORATION, )

as Receiver for Commonwealth ) Federal Savings & Loan )

Association, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5182GM

)

DEPARTMENT OF COMMUNITY ) AFFAIRS and CITY OF SOUTH ) DAYTONA BEACH, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on February 1, 1995, in Ormond Beach, Florida.

APPEARANCES

For Petitioner: Maureen A. Arago, Esquire

1411 Edgewater Drive, Suite 203

Orlando, Florida 32804

For Respondent: Karen A. Brodeen, Esquire (DCA) 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent: Scott E. Simpson, Esquire

(City) 595 West Granada Boulevard, Suite A Ormond Beach, Florida 32174

STATEMENT OF THE ISSUE

The issue in this case is whether the City of South Daytona Beach plan amendment adopted by Ordinance No. 94-05 on May 24, 1994, is in compliance.

PRELIMINARY STATEMENT

This case began on August 5, 1994, when petitioner, Resolution Trust Corporation, as receiver for Commonwealth Federal Savings & Loan Association, filed a petition for an administrative hearing alleging that a comprehensive plan amendment adopted by respondent, City of South Daytona Beach, was not in compliance with Section 163.3177, Florida Statutes, in several respects. The petition was forwarded by respondent, Department of Community Affairs, to the Division of Administrative Hearings on September 19, 1994, with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated October 21, 1994, a final hearing was scheduled on January 3, 1995, in Daytona Beach, Florida. The City's unopposed motion for continuance was granted, and the matter was rescheduled to February 1, 1995, in Ormond Beach, Florida.

At final hearing, petitioner presented the testimony of James R. Hall, an urban planner and accepted as an expert in planning and feasibility analysis; and James R. Gibson, a state certified real estate appraiser and accepted as an expert in the appraisal of commercial properties. Also, it offered petitioner's exhibits 2, 3, 4, 6 and 7. All exhibits were received in evidence. The City presented the testimony of John C. Schoch, its community development director and accepted as an expert in government planning. Also, it offered city exhibits 1, 2 and 9. All exhibits were received in evidence. The agency presented the testimony of Arlene J. Pelletier, a planner and accepted as an expert in comprehensive planning. Also, it offered DCA exhibit 1 which was received in evidence.

The transcript of hearing (two volumes) was filed on February 21, 1995. Proposed findings of fact and conclusions of law were filed by the parties on March 13, 1995. A ruling on each proposed finding is set forth in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact have been determined:

1. Background

   
   

   1. The Parties

      
      

      1. Respondent, City of South Daytona Beach (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto.

         
         

      2. Petitioner, Resolution Trust Corporation (RTC), is a federal agency now acting as the receiver for Commonwealth Federal Savings & Loan Association, a banking institution taken over by that agency and which owned the property affected by the City's plan amendment. As the owner of property within the City, RTC is an affected person within the meaning of the law and thus has standing to bring this action.

         
         

   2. The Nature of the Dispute

      
      

      1. On October 29, 1993, the City received an oral request, which was later confirmed in writing, from Thomas J. Wetherall on behalf of various residential property owners to make an amendment to the City's comprehensive plan to change certain nearby vacant land owned by RTC from a general commercial designation to residential density 1. Under the request, the City would change the use on the eastern part of RTC's 5.6 acre tract of land from commercial to single-family residential use. The specific amendment involves a change in the Future Land Use Map (FLUM). Rather than treating the change as one initiated by a property owner, the City elected to have its city manager file the application on its own behalf.

      2. Public hearings were held on the plan amendment on January 19 and February 16, 1994. A transmittal hearing was then conducted by the City on February 22, 1994, and despite objections by RTC, final adoptive action occurred on May 24, 1994, through the enactment of Ordinance No. 94-05. Thereafter, on July 1, 1994, the DCA issued a notice of intent to find the amendment in compliance.

         
         

      3. On August 5, 1994, RTC filed a petition for an administrative hearing challenging the plan amendment on the ground it was inconsistent with the law in various respects. As clarified at hearing, petitioner contends the amendment

         (a) violates certain provisions within Section 163.3177, Florida Statutes, (b) is inconsistent with policies 2-1, 2-4, 2-6 and 7-3 of objective 2 of the Future Land Use Element (FLUE) of the plan, and (c) is not supported by adequate data and analysis.

         
         

2. The Plan Amendment

   
   

   1. Petitioner is the owner of a rectangular shaped tract of vacant land more commonly known as the Halifax Center. The land, which totals approximately

      5.6 acres, lies between South Ridgewood Avenue (U. S. 1) to the west, Palmetto Avenue to the north, and Palmetto Circle to the east. The property being redesignated (2.6 acres) is the eastern part of the parcel and measures approximately 105 feet deep by 864 feet long.

      
      

   2. If found to be in compliance, the plan amendment would change the FLUM to redesignate the 2.6 acres of the property from general commercial to residential density 1. This means that instead of having its entire tract of property with a single designated commercial use, RTC would have a split designation, with roughly the eastern half designated as residential. Therefore, the eastern part of the tract could only be subdivided for a few substandard, medium to lower-end, single-family residential homes on lots 105 feet deep. Even then, the amendment does not give consideration to setback and buffer requirements needed between the newly created residential lots and the commercial land directly abutting their rear. Because of this, and the fact that its remaining commercial property has been reduced to a depth of 170 feet, petitioner complains that the value of its property has been substantially

      reduced, a concern not relevant here, and that the amendment does not conform to the requirements of the law.

      
      

   3. To the east of the subject property and across Palmetto Circle lie a string of large, single-family lots with upscale homes fronting on the Halifax River. It is this group of property owners who are responsible for the amendment. To the west of the property and across U. S. 1 is found a tract of vacant land designated for professional office land use. To the north of the property is found a combination of multi-family (8-10 units per acre) and general commercial uses.

      
      

   4. In crafting the amendment, it may be reasonably inferred that the City simply drew an arbitrary line down the middle of RTC's property, leaving what it believed to be was the bare minimum amount of commercial land necessary to comply with the plan. Although the City contended that one of the purposes of the amendment was to further its goal of increasing the amount of single-family housing in the City, it can be reasonably inferred that the true purpose of the amendment was to protect the value of homes located across Palmetto Circle by placing a buffer between their property and the commercial property to the west. Indeed, a City memorandum sent to the City's Land Development Regulation Board

      on January 12, 1994, stated that the purpose of the change was to "provide a buffer between (the) Ridgewood Avenue commercial zone and existing housing along Palmetto Circle."

      
      

3. Is the Plan Amendment in Compliance?

1. The City's comprehensive plan is broken down into elements which conform to the statutory requirements of Chapter 163, Florida Statutes. Under each element are found goals, objectives and policies. As is relevant here, the goal for the FLUE is to "(p)rovide for a well-rounded community as described in the overarching goal." Objective 2 of the FLUE is to:

   
   

   (l)ocate commercial and industrial land uses where transportation access is adequate and conflicts with other land uses can be minimized.

   
   

2. Petitioner contends that the plan amendment conflicts with four of the policies which implement objective 2. These are policies 2-1, 2-4, 2-6 and 7-3, which read as follows:

   
   

   2-1: Locate major commercial and industrial land uses along primary arterials.

   
   

   2-4: Commercial districts along principal arterials shall be made deep enough to provide options to typical strip development.

   
   

   2-6: Provide adequate commercial/industrial land for development or redevelopment which will result in a 15 percent increase in taxable value over the next ten years.

   
   

   7-3: New development shall be required to be compatible with existing development by the arrangement of land use and/or the provision of adequate buffering.

   
   

3. As noted earlier, petitioner's tract of land lies between U. S. 1 to the west and Palmetto Circle to the east. Because the western part of petitioner's property lies along Ridgewood Avenue (U.S. 1), a principal arterial road, and will continue to remain general commercial, the amendment is deemed to be consistent with policy 2-1. In other words, that portion of petitioner's property which retains a general commercial designation will be located "along primary arterials," in conformity with policy 2-1, while the remaining portion of the property which fronts on a local road (Palmetto Circle) will be designated residential.

   
   

4. The purpose of policy 2-4 is to ensure that commercial districts along principal arterials such as U. S. 1 are deep enough to provide options to typical strip commercial development patterns. This type of development is defined as one or more buildings that are parallel to and facing the primary street with no circulation around the back. Petitioner contends that the plan amendment violates this policy since the remaining portion of its land designated general commercial will only be 170 feet deep in relation to U. S. 1, thereby severely limiting its development options.

5. By reducing the depth of property, as will be done here by the City, the flexibility and creativity for developing petitioner's parcel will be substantially reduced. While respondents' experts opined that the site will be deep enough to accommodate some types of commercial development other than the typical strip pattern, such as freestanding buildings, a restaurant, or even two or three office buildings, the more persuasive evidence shows that anything less than 200 feet in depth eliminates virtually all meaningful development options except a strip shopping center. Since the remaining commercial land along U. S.

   1 will not "be made deep enough to provide options to typical strip development," the amendment is inconsistent with policy 2-4.

   
   

6. Under policy 2-6, the City's goal is to increase its tax base 15 percent by the year 2000. Since the overall plan went into effect in 1990, the City's tax base has increased approximately 14.5 percent. Petitioner contends that the plan amendment will substantially reduce the value of its property, and the concomitant tax base, and thus the plan amendment is inconsistent with the policy. But even if a reduction in value will occur, there is insufficient evidence to demonstrate that the City's taxable value will not increase by an additional half percent during the next five years. Accordingly, the undersigned finds the amendment to be consistent with policy 2-6.

   
   

7. Finally, Policy 7-3 requires that new development be compatible with existing development by the arrangement of land use and/or adequate buffering. Under the proposed plan amendment, the City has created a more integrated residential neighborhood along Palmetto Circle. Also, the redesignated land will serve as a form of buffer between the residential development on the east side of Palmetto Circle and the commercial development on the west side of Palmetto Circle. Although the City asserts that the change in land use should reduce the potential amount of traffic on the local road (Palmetto Circle) that would otherwise increase through commercial development, this assertion is questionable given the fact that no access to the commercial property from Palmetto Circle now exists. Finally, if the amendment becomes operative, the property would be the only single-family residential property on the corridor east of U. S. 1 and west of Palmetto Circle. Collectively, these considerations support a finding that the plan amendment's consistency with policy 7-3 is fairly debatable.

   
   

8. Property appraisals are not appropriate data or analysis upon which to base future land use designations. In other words, property values should not control planning decisions. If they did, future land use maps would reflect only high intensity uses, not a balanced community. Except to the limited extent it bears on policy 2-6, evidence presented by petitioner that the plan amendment would decrease the value of the Halifax Center from $610,000.00 to less than $359.000.00 has little, if any, probative value on the other relevant issues.

   
   

9. Although petitioner raised other contentions in its initial petition, including one that the plan amendment is not supported by adequate data and analysis, these issues have been deemed to be irrelevant, abandoned, or not supported by sufficient evidence to make a finding in petitioner's favor.

   
   

10. In determining whether a plan amendment is in compliance, the DCA looks to consistency with the plan as a whole rather than isolated parts. Therefore, an amendment may be inconsistent with the plan in certain respects, but still be in compliance as a whole unless the inconsistency is determined to be "very important." It may be reasonably inferred from the evidence that the

    City's policy of discouraging "typical strip development" is an important ingredient in its overall plan.

    
    

11. To summarize, the evidence fails to show to the exclusion of fair debate that the plan amendment is inconsistent with policies 2-1, 2-6 and 7-3 of objective 2 of the future land use element of the plan. As to policy 2-4, however, it is found that the City's determination of compliance is not fairly debatable, and thus the amendment is not in compliance in that respect.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsections 120.57(1) and 163.3184(9), Florida Statutes.

    
    

13. The broad issue in this case is whether the plan amendment is "in compliance" with Part II of Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. "In compliance," as defined in Subsection 163.3184(1)(b), Florida Statutes, means the plan is consistent with applicable provisions of Chapter 163, Florida Statutes, the regional policy plan, and Chapter 9J-5, Florida Administrative Code.

    
    

14. This case arose under Subsection 163.3184(9)(a), Florida Statutes, following the DCA's notice of intent to find the plan amendment in compliance. Under that statute, the plan amendment shall be determined to be "in compliance" if the local government's determination of compliance is fairly debatable. Therefore, the action of the City (and DCA) must be approved "if reasonable persons could differ as to its propriety." B & H Travel Corporation v. Department of Community Affairs, 602 So.2d 1362, 1365 (Fla. 1st DCA 1992). In other words, petitioner bears a heavy burden in proving the legitimacy of its claims.

    
    

15. Having considered the entire record herein, it is concluded that while the evidence fails to prove to the exclusion of fair debate that the plan amendment is inconsistent with policies 2-1, 2-6, and 7-3, as alleged by petitioner, the amendment is clearly inconsistent with policy 2-4. Since the City's goal of discouraging strip shopping centers is not an insignificant goal in relation to the overall plan, the City's failure to comply with policy 2-4 renders the amendment not in compliance.

    
    

16. Finally, petitioner has argued that the plan amendment is inconsistent with the requirements of Subsection 163.l3177(1), Florida Statutes. That subsection provides that:

The comprehensive plan shall consist of materials in such descriptive form, written or graphic, as may be appropriate to the prescription of principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area.

More specifically, petitioner contends that the amendment does not provide for "the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area," as required by the law. But this subsection simply provides a general intent that plans consist of written or graphic materials to the extent those materials are appropriate, and it does not specify

any requirements for an amendment which may be used to evaluate whether the amendment is in compliance. Rather, plan content requirements, broken down by the various elements, and data and analysis requirements are specified in other portions of section 163.3177. Therefore, the argument is deemed to be unavailing. The undersigned has also carefully considered, but rejected, petitioner's argument that the amendment contravenes the requirement in Subsection 163.3177(2), Florida Statutes, that the plan be "economically feasible." Economic feasibility means that plans should be realizable in financial terms. It was not intended to impose on the local government a requirement that properties be designated at their highest and best use. The contention has accordingly been rejected.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order

determining the City of South Daytona Beach comprehensive plan amendment to be not in compliance.

DONE AND ENTERED this 19th day of April, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 19th day of April, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5182GM

Petitioner:

1. Partially accepted in finding of fact 3.

2. Partially accepted in finding of fact 7.

3. Partially accepted in finding of fact 4. 4-6. Rejected as being a conclusion of law.

1. Partially accepted in finding of fact 15.

2. Rejected as being irrelevant.

3. Partially accepted in finding of fact 17.

4. Rejected as being irrelevant.

Respondent (DCA):

1-2. Partially accepted in finding of fact 1.

3. Partially accepted in finding of fact 2.

Respondent (City):

1-2. Partially accepted in finding of fact 1.

3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 4. 6-7. Partially accepted in finding of fact 5.

8. Covered in preliminary statement.

Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law.

COPIES FURNISHED:

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

Tallahassee, FL 32399-2100

Dan R. Stengle, Esquire General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

Maureen A. Arago, Esquire 1411 Edgewater Drive

Suite 203

Orlando, FL 32804

Karen A. Brodeen, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

Scott E. Simpson, Esquire

595 West Granada Boulevard Suite A

Ormond Beach, FL 32174

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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: 94-005182GM

Orders for Case No: 94-005182GM