SUMTER CITIZENS AGAINST ) IRRESPONSIBLE DEVELOPMENT, ) INC.; T. DANIEL FARNSWORTH; ) RUSSELL WEIR; JACK BURCHILL; ) LINDA LATHAM; and TERRY )
vs. ) Case No. 96-5917GM
Intervenor. )
Pursuant to notice, a formal hearing was held in this case on November 13 and 14, 1997, in Bushnell, Florida, before Donald
R. Alexander, Administrative Law Judge of the Division of Administrative Hearings.
For Petitioners: Jane M. Gordon, Certified Legal Intern
For Petitioner: T. Daniel Farnsworth, pro se (Farnsworth) 12364 County Road 223
For Respondent: Kathleen R. Fowler, Esquire (DCA) Sherry A. Spiers, Esquire
For Respondent: Felix M. Adams, Esquire (County) 236 North Main Street
For Intervenor: Jimmy D. Crawford, Esquire
Whether Comprehensive Plan Amendment 96-2 adopted by the County on September 24, 1996, is in compliance.
This matter began on September 24, 1996, when Respondent, Sumter County, adopted Plan Amendment 96-2 by Ordinance No.
96-17, which changed 510 acres from a Future Land Use Map designation of Agricultural to Planned Unit Development and would extend the existing Sumterville Urban Expansion Area to include the site. After the amendment was forwarded to Respondent, Department of Community Affairs, it was found to be in compliance on November 1, 1996.
On November 25, 1996, Petitioners, Sumter Citizens Against Irresponsible Development, Inc., T. D. Farnsworth, Russell Weir, Jack Burhill, Linda Latham, and Terry Forsman filed a Petition to Request Administrative Hearing seeking to contest the amendment on the grounds it was inconsistent with other plan objectives, policies, and goals, and it was inconsistent in various respects with the state comprehensive plan, agency rules, and state law.
The matter was forwarded by the agency to the Division of Administrative Hearings on December 8, 1996, with a request that an Administrative Law Judge be assigned to conduct a hearing.
By Notice of Hearing dated February 3, 1997, a final hearing was scheduled on November 13 and 14, 1997, in Bushnell, Florida. At final hearing, Petitioners presented the testimony of Ronnie Hawkins, Sumter County Property Appraiser; Nellie B. Burchill, neighboring property owner; Jack Burchill, neighboring property owner; Russell Weir, Sumter County property owner; Linda Latham, Sumter County property owner; Steve Farnsworth, an environmental analyst with the Palm Beach County Department of Environmental Resource Management and accepted as an expert in environmental science; Lois Busch, a water resource planner with the St. Johns River Water Management District and accepted as an expert in planning; Russell Day, Sumter county property owner; Roberta Roe, Sumter County Planner II; T. Daniel Farnsworth, Sumter County property owner; Jeff E. Bielling, a planning manager with the Department of Community Affairs and accepted as an expert in comprehensive planning; and Dr. Neil G. Sipe, a land use planner and accepted as an expert in comprehensive planning. Also, they offered Petitioners' Exhibits 1-10, which were received in evidence.
Respondents and Intervenor, Pringle Communities, Inc., jointly presented the testimony of John A. Pringle, President of Pringle communities, Inc.; Steven R. Adams, a consultant and
accepted as an expert in environmental science and environmental assessments; Jim Thigpen, a realtor and accepted as an expert in Sumter County real estate issues; Greg Beliveau, a consultant and accepted as an expert in planning; Roberta Roe, Sumter County Planner II; and Arlene Pelletier, a certified land planner and accepted as an expert witness in land planning and review of comprehensive plans and plan amendments. Finally, the parties offered Joint Exhibits 1-18, which were received in evidence.
The transcript of hearing (four volumes) was filed on December 9, 1997. Proposed findings of fact and conclusions of law were filed by the parties on January 16, 1998, and they have been considered by the undersigned in the preparation of this Recommended Order.
Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined:
Petitioners have alleged the amendment is not in compliance for the following reasons: (a) the amendment fails to protect agricultural lands; (b) the amendment encourages urban sprawl; (c) the future land use map fails to reflect the goals, objectives, and policies of the Plan; (d) there is no demonstrated need for 510 acres of PUD land use; (e) the
amendment does not demonstrate compatibility with adjacent agricultural and rural residential land uses; (f) the amendment does not provide for concurrency for adopted levels of services pursuant to the Plan; (g) the amendment does not comply with stormwater and drainage requirements of the Plan; (h) the amendment fails to satisfy the capital improvements element of the Plan; and (i) affordable housing needs are not met. These contentions will be discussed separately below.
Protection of agricultural lands
Under the amendment, 510 acres of land designated on the FLUM as agricultural land use will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by Plan Objective 7.1.2 and
Rule 9J-5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insure(s) retention of agricultural activities." If the plan amendment fails to adequately protect adjacent agricultural areas, the cited rule considers this failure to be one of the thirteen primary indicators that the amendment does not discourage the proliferation of urban sprawl.
The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, Plan Objective 7.1.2 and the corresponding policies allow for the conversion of
suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly, and logical fashion based on need and suitability.
The agricultural lands being converted to urban land uses as a result of the plan amendment are appropriate for conversion. The Plan designates the Pringle parcel as an area appropriate for urban development. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. In fact, the Plan contains a series of maps which specifically locate agricultural areas appropriate for conversion to urban uses, and the Pringle parcel is located within such designated areas.
The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the requirement within the Plan that infrastructure be in place concurrent with development. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands.
Because Rule 9J-5.006(5)(g)5., Florida Administrative Code, deals exclusively with "adjacent" agricultural land, the conversion of any agricultural uses on the Pringle parcel is not relevant to the cited rule.
The Plan requires the County to retain a minimum of ninety percent of its land area in rural (agriculture, timberland, and vacant) and conservation land use.
The County has no "mining" zoning or land use designation, but includes mining as an agricultural use. Including the land covered by mining permits in the County, more than ninety percent of the County's land area is maintained in rural (agriculture, timberland, and vacant) and conservation land use, even after the adoption of the amendment.
In view of the above, Petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land, either on or adjacent to the Pringle parcel.
Urban sprawl
In the same vein, Petitioners contend that the amendment fails to discourage urban sprawl because it converts
510 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, which have allegedly been violated. Petitioners also allege the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and
services are planned for the lands covered by the amendment prior to its adoption.
The plan amendment includes an evaluation of urban sprawl. That evaluation references Plan Policy 7.1.2.5(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural land use area, it must score at least 50 points, applying a point system based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD fails to score 50 points, it is deemed to encourage urban sprawl and would not be approved by the County. Amendment 96A01 scored 100 points, well in excess of the 50-point threshold. While the point system does not apply directly because the amendment alters the Urban Expansion Area to include the Pringle parcel, it is evidence that the amendment does not fail to discourage urban sprawl.
In addition to satisfying Plan Policy 7.1.2.5.(a), the plan amendment is consistent with Future Land Use maps VII-18a and VII-18c, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the Plan data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most
suitable for such development. Map VII-18a demonstrates that the land included in the plan amendment has only slight limitations in regard to urban sprawl.
If the amendment allows a strip development, this is another of the thirteen primary indicators that an amendment may fail to discourage urban sprawl. The evidence shows, however, that the subject property is not a strip development because it is not a linear development that runs parallel to a highway.
Finally, the PUD mixed land use category adopted by the plan amendment is a planning method specifically recognized by Rule 9J-5.006(5)(1), Florida Administrative Code, as a method of discouraging urban sprawl. Indeed, the rule provides in part that:
mixed use development . . . will be recognized as [a method] of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl.
Because the PUD adopted by the amendment is designed to provide a
mix of land uses, the amendment does not fail to encourage an attractive and functional mix of uses.
Given the above, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl.
Demonstrated need and adequate data
Petitioners allege the plan amendment "fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege amendment 96A01 "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth."
Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Section 163.3177(10)(e), Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner.
Demonstrated need is only a subset of one of the thirteen primary indicators that an amendment or plan may fail to discourage urban sprawl. Rule RJ-5.006(5)(g)1, Florida Administrative Code, lists as one of the thirteen indicators whether the amendment:
[p]romotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. (Emphasis added)
The thirteen primary indicators are evaluated as a whole, not as a "one strike and you're out" list, to determine
one aspect of compliance -- whether the amendment fails to discourage the proliferation of urban sprawl.
"Multipliers" are a planning tool generally utilized by professional planners to aid in determining the need for additional allowable densities. Multipliers are generally expressed as a percentage or ratio of the estimated population in a given time period compared with the total residential units allowed by the comprehensive plan. For example, a multiplier of
2.0 would mean that, over the particular planning time frame, there existed twice as many residential units allocated as the population projections estimated would be utilized.
At hearing, Petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended (a) seasonal population and planned federal prison expansions contained within the approved Plan were in error and therefore should not be used to support the amendment; (b) the agricultural land use acreage should be included in the multiplier calculation; and (c) the PUD maximum allowable density of eight units per acre should be used to calculate the multiplier rather than the approved density of just under one unit per acre.
The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations, and Comments (ORC) report and preparation for the hearing in this matter. The ORC report recommended that the County provide data and analysis
which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population.
Based on historic data, the County utilized a multiplier which had been calculated in 1995 in Case
No. 94-6974GM, judicial recognition of which was taken in this hearing. In that case, the multiplier depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately eighty-seven percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed.
Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide.
In an effort to provide a more accurate multiplier, prior to the hearing, utilizing data available when the amendment was adopted, the County recalculated the multiplier and determined the updated multiplier to be 1.3.
The County's calculation of a multiplier excludes agricultural land from consideration, in order to protect agricultural lands as required by the Plan. In some rapidly urbanizing jurisdictions vacant land labeled agricultural or rural on a future land use map may simply be future development
land. However, the County has as one of its primary land use goals to protect agricultural land. To include agricultural land use acreage in the multiplier calculation could lead to an under- allocation of density which would jeopardize agricultural land by encouraging development in the very areas the plan is designed to protect. The DCA has utilized multiplier calculations in other counties that do not include agricultural lands. Therefore, because of the unique situation of the County and its land use plan's emphasis on protecting agricultural land, in this case it is professionally acceptable to exclude agricultural land from the multiplier calculation.
In the County, PUD is a land use category rather than merely a zoning category as in many other jurisdictions. The effect of that designation is to limit the density of the development by land use designation to 499 units. Any increase in the density or intensity of the development would require a land use plan amendment. Consequently, when calculating the multiplier, the density approved for this PUD (499 units) should be utilized rather than the PUD maximum allowable density of eight units per acre.
Petitioners developed a multiplier of their own of 4.1. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner.
Intervenor's marketing scheme for its residential developments is directed at persons moving to Florida from other
states. Intervenor plans to use the same marketing scheme for the Pringle parcel, and most residents are not expected to be from the County.
The proposed development, along with the Villages development in the northeast section of the County, which is subject to age restrictions which limit its availability to families, is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed.
Between 1992 and 1996, the federal prison facility located near the Pringle property hired new employees, many of whom relocated from outside the area. However, the vast majority of these immigrants located outside of the County because of a lack of available appropriate housing.
The federal prison facility is to be expanded in the near future, with the next phase to employ approximately 250 new employees. This expansion has already been funded by the federal government.
Although the federal prison and its expansions were contemplated as part of the Plan adoption process, the impact of the federal prison and its expansions were not included in the population projections as calculated in the Plan.
The seasonal population of the County was not included in the Plan's population projection. Rule 9J-5.005(2)(e), Florida Administrative Code, requires both resident and seasonal population estimates be used to determine population estimates for plan and plan amendment purposes. Therefore, the seasonal population estimate and the impact of the federal prison should be included in determining need.
Given these considerations, Petitioners have not shown to the exclusion of fair debate that the plan amendment was not based on a demonstrated need, or was not adequately supported by data and analysis.
Compatibility with adjacent agricultural lands
Petitioners have also alleged the County has not demonstrated compatibility with adjacent agricultural and rural residential land uses.
The Plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the Plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and Master Development Plan, both incorporated into the plan amendment, shows that the Pringle development will provide approximately 225 acres of open space. Much of this open space, as required by the Plan, will act as a buffer between the development and the adjacent agricultural and rural land uses.
The project will also cluster its development, which serves to separate the more urban development from the adjacent agricultural and rural uses. In view of these considerations, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent agricultural land uses.
Level of services
In their Petition, Petitioners assert that
amendment 96A01 violates Plan Objective 7.1.6, Policy 7.1.6.1, Objective 8.1.1, and Policy 8.1.1.1, Rules 9J-5.005(3),
9J-5.011(2)c., and 9J-5.015(3)(b)1., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services, stormwater, and flooding.
The stated policies and rules require adoption and adherence to specific levels of service prior to development of land. The amount of facilities required is based on population. Under the Plan, the County must take the necessary steps to insure the availability of these facilities. The development order in this case also requires the developer to provide for adequate public facilities.
Petitioners offered no testimony, exhibits, or evidence regarding the following: Plan Objective 7.16, as alleged in paragraph 15.F. of their petition; Objectives 4.4.1, 4.5.1, and
4.5.2, and Policies 4.4.1.1, 4.4.1.2, 4.4.1.3, 4.5.1.2, and
4.5.2.1, as alleged in paragraph 15.G of their petition; Objective 8.1.1, as alleged in paragraph 15H of their petition; and Objective 1.3.5, as alleged in paragraph 15.I of their petition. Petitioners also specifically stated they are not contesting any issues regarding flooding. In view of this lack of presentation of evidence, Petitioners have failed to show to the exclusion of reasonable debate that the plan amendment is inconsistent with any of the above Plan Objectives and Policies.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 163.3184(9), Florida Statutes.
This case arose under Section 163.3184(9)(a), Florida Statutes, following DCA's notice of intent to find the County's plan amendment in compliance. Under that statute, the plan amendment must be determined to be "in compliance" if the local government's determination of compliance is fairly debatable.
The fairly debatable test asks whether reasonable minds could differ as to the outcome. The action of the County 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). Under this test, an extremely heavy burden is placed upon Petitioners to prove the legitimacy of their claims.
"In compliance," as defined in Section 163.3184(1)(b), Florida Statutes, means the plan is consistent with the requirements of Sections 163.3177, 163.3178, and 163.3191, Florida Statutes, the state comprehensive plan, the regional policy plan, and Chapter 9J-5, Florida Administrative Code.
At final hearing, Petitioners objected to the introduction of any evidence or testimony which had not been formally submitted to the DCA prior to issuance of the Notice of Intent to find the amendment in compliance. They contended that only data which was submitted to the DCA, or discovered by DCA, during the amendment review and adoption process should be admissible in the proceeding. However, any data that was available when the amendment was adopted by the County should be admissible in the proceeding, even if some of that data were not submitted or considered by the DCA during the review and compliance determination.
The DCA is bound to review plan amendments based upon the best available data. See Rule 9J-5.005(2)(c), Florida Administrative Code. In this case, some of the best data available for the hearing to review the plan amendment (the multiplier calculation of 1.3 and the building permit data submitted by the County to the DCA one day prior to the compliance determination) had not been utilized to adopt the amendment. However, the weight of authority suggests that such data is admissible to support the amendment at final hearing.
See Zemel v. Lee County and DCA, 15 FALR 2735 (Dep. Comm. Aff. 1993), aff'd, 642 So. 2d 1367 (Fla. 1st DCA 1994)(data existing at time of adoption but not utilized until final hearing was admissible to support plan amendment). Therefore, all evidence submitted by Respondents and Intervenor at final hearing is admissible to support the amendment.
The more credible and persuasive evidence shows that Petitioners failed to prove to the exclusion of fair debate that the plan amendment is inconsistent with, or violates, the plans, goals, objectives, and policies as alleged in the petition.
It is further concluded that Petitioners have also failed to prove to the exclusion of fair debate that the plan amendment is not in compliance within the meaning of Chapter 163, Part II, Florida Statutes.
Finally, it is concluded that Petitioners have also failed to demonstrate to the exclusion of fair debate that the plan amendment is not supported by adequate data and analysis.
Because the County's determination of compliance is fairly debatable, the plan amendment is determined to be in compliance within the meaning of Section 163.3184(1)(b), Florida Statutes.
Final Order determining Plan Amendment 96-2 adopted by Sumter County by Ordinance Number 96-17 on September 24, 1996, to be in compliance.
DONE AND ENTERED this 26th day of February, 1998, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1998.
James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Jane M. Gordon
T. Daniel Farnsworth 12364 County Road 223 Oxford, Florida 34484
Kathleen R. Fowler, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Felix M. Adams, Esquire
Jimmy D. Crawford, Esquire Post Office Box 492460 Leesburg, Florida 34749-2460
Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions should be filed with the Department of Community Affairs.
