STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

SHADY HISTORIC AND SCENIC )

TRAILS ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-4144GM

)

CITY OF OCALA, )

)

Respondent, )

)

and )

)

RED OAK FARM, INC., )

)

Intervenor. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on April 14 and 15, 2003, in Ocala, Florida.

APPEARANCES

For Petitioner: Darlene Weesner, pro se

655 Southwest 80th Street Ocala, Florida 34476-4907

For Respondent: W. James Gooding, III, Esquire

Gilligan, King & Gooding, P.A. 1531 Southeast 36th Avenue Ocala, Florida 34471-4936

For Intervenor: Bryce W. Ackerman, Esquire

Gray, Ackerman & Haines, P.A.

125 Northeast First Avenue, Suite One Ocala, Florida 34470-6652

STATEMENT OF THE ISSUE

The issue is whether the City of Ocala's Plan Amendment 97-39C adopted by Ordinance No. 2689 on August 5, 1998, is in compliance.

PRELIMINARY STATEMENT

This matter began on August 5, 1998, when Respondent, City of Ocala (City), enacted an ordinance adopting Plan Amendment 97-39C (Plan Amendment) which changed the land use designation on a 197.42-acre tract of land owned by Intervenor, Red Oak Farm, Inc. (Red Oak), to Low-Density Residential. The change in the land use allows a more intensive development on the property. Because the City was a participant in the Sustainable Communities Demonstration Project authorized by former Section 163.3244, Florida Statutes, plan amendments adopted before the repeal of the statute were not reviewed by the Department of Community Affairs (DCA), and any plan amendment challenges were filed directly with the Division of Administrative Hearings (DOAH). Accordingly, on September 4, 1998, Petitioner, Shady Historic and Scenic Trails Association, Inc. (SHASTA), filed with DOAH a paper styled "Petition Challenging Land Use Changes 97-39C

and 98-51C Approved at Ocala City Council Hearings, June 9, 1998 and August 4, 1998." An amendment to the original Petition was subsequently filed on September 21, 1998.

Because the original Petition, as amended, challenged two separate and unrelated amendments, on October 19, 1998, a Motion to Sever the two amendments filed by a party supporting Plan Amendment 98-51C was granted, and Plan Amendment 97-37C was given Case No. 98-4144GM while Plan Amendment 98-51C was given Case No. 98-5019GM. Petitioner was also authorized to make another amended filing which contained allegations pertaining only to Plan Amendment 97-37C. Such a filing was made on November 2, 1998. Petitioner later retained counsel, who filed a Second Amended Petition for Administrative Hearing on May 12, 1999, and then a Third Amended Petition for Administrative Hearing on August 17, 1999. Counsel subsequently withdrew from the case, and since that time, Petitioner has been represented by its registered agent, Darlene Weesner, a non-attorney.

The matter was initially abated pending efforts by the

parties to mediate a settlement. Thereafter, the case was scheduled for final hearing on November 16-18, 1999, in Ocala, Florida. At the request of the City and Red Oak, the case was rescheduled to March 14-16, 2000, and then abated a second time while the City annexed a tract of property adjacent to

the subject property of this case and obtained certain right- of-way, and Red Oak prepared a master plan of development.

The case was again scheduled for final hearing on October 30 and 31, 2002, in Ocala, Florida. At Petitioner's request, it was continued until April 14-16, 2003, at the same location. Although the DCA was authorized to intervene in the proceeding on November 2, 1999, it withdrew as a party on March 26, 2003.

At the final hearing, Petitioner presented the testimony of its registered agent, Darlene Weesner, a Marion County (County) resident; Margy Beiling, a retired biology teacher and County resident; Thomas Begley, a retired educator and president of SHASTA; Mariam Cook, who owns property within the City; Jill Nelson Dobbs, a district conservationist with the United States Department of Agriculture; Jimmy Massey, a principal planner with the County; Steven Boyes, a professional geologist; Steven Henning, a County Commissioner; and Jill Cole, a County resident. Also, it offered Petitioner's Exhibits 4, 13-15, 21, 24, 25, 34, 43-45, and 47- 54, which were received in evidence. The City presented the testimony of Tye L. Chighizola, City Planner; Bruce E. Phillips, City Engineer and a professional engineer; and Michael S. Amsden, a member of the City Council. Also, it offered City Exhibits 18-21, 23-25, 27, and 35, which were received in evidence. Red Oak presented the testimony of

Michael Garmen, a professional geologist; and Sarah M. Whitaker, a professional geologist. Also, it offered Intervenor's Exhibits 2 and 3, which were received in evidence.

The Transcript of the hearing (2 volumes) was filed on May 5, 2003. Proposed Findings of Fact and Conclusions of Law were originally due on May 20, 2003. At Petitioner's request, however, this time was extended to May 30, 2003, and the same were timely filed by the parties and have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

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

A. Background

1. For many years, Red Oak has operated a horse farm in the Ocala area. On an undisclosed date in the early 1990s, when Red Oak's property was still located outside the City's boundaries, the City initiated condemnation proceedings against Red Oak (whose tract of land then totaled around 206 acres) for the purpose of obtaining land to site an electrical substation.

2. On May 10, 1994, Red Oak, the City's outside counsel, and the City Manager (but not the City Council) executed a Settlement Agreement (Agreement) to resolve the pending

   litigation, under which the City's staff agreed to support a City plan amendment changing the land use on the property to Medium Residential Density, support a conceptual development of the property attached to the Agreement (which included the construction, among other things, of an office/convention center, 96 single-family homes, and 715 apartments), and support annexation of the entire tract of property into the City. Because the City subsequently amended its Comprehensive Plan to prohibit apartments on the land use later assigned the property, the conceptual plan was abandoned by Red Oak and is no longer relevant. A City substation now occupies approximately 8 acres of former Red Oak property in the northwest corner of the tract.

3. On November 5, 1996, the City annexed the remaining

   
   

   197.42 acres of the Red Oak property. At the time of annexation, the property was subject to a combination of two County land use designations: Low Density Residential (one unit per acre) and Agriculture (one unit per ten acres).

4. Pursuant to the Agreement, Red Oak then sought, with City staff's support, the adoption of a plan amendment changing the land use on the Future Land Use Map (FLUM) for the remaining acreage to Medium Density Residential, which authorizes ten dwelling units per acre. However, because of the high intensity of development (such as commercial

   activities, a hotel, a nursing home, retail outlets, and

   
   

   multi-family apartments) on the land just north of the subject property (of which the apartments were closest to Red Oak's property), the City Council rejected the staff's recommendation. Instead, it decided to reclassify the Red Oak property as Low Density Residential, rather than Medium Density Residential, so that the land use would be more consistent with the City's goal of using a "step-down approach," that is, to gradually step down (in a north to south direction) the intensity of development from commercial to office to apartments to single-family residential. By doing so, the intensity of development on the property would be reduced from ten dwelling units per acre, as proposed by the staff under Medium Residential Density, to no more than five single-family dwelling units per acre under Low Density Residential, which is the City's lowest adopted land use category for residential.

5. On August 5, 1998, the City formally adopted Plan

   
   

   Amendment 97-39C. If the Plan Amendment is ultimately found to be in compliance, Red Oak will more than likely sell the property to a third party/developer, who will then convert the property from a horse farm to more intensive use. An adjacent 40-acre parcel which was later purchased by Red Oak (and is linked to the 197-acre parcel for development purposes) was

   recently annexed by the City, and is the subject of another plan amendment scheduled for adoption in the summer of 2003. That amendment also proposes to change the land use designation on the adjoining 40-acre tract of property to Low Density Residential.

6. When the Plan Amendment was adopted, the City was one of five local government participants in the Sustainable Communities Demonstration Project authorized by former Section 163.3244, Florida Statutes. Under the terms of that statute, which was repealed in 2001, this Plan Amendment was not reviewed by the DCA. By avoiding this step in the review process, the City shortened the time for adopting the Plan Amendment from nine to four months.

7. On September 4, 1998, SHASTA filed with DOAH its original Petition challenging the Plan Amendment. As later amended three times, the last two times by its former counsel, and generally restated in the parties' Prehearing Stipulation, SHASTA contends that the Plan Amendment is not in compliance because (a) the Plan Amendment is not based on surveys, studies, and data regarding growth and character of land; (b) there is insufficient data and analysis for a determination of the Plan Amendment to show a need for more land to be developed at five units per acre; (c) the developed land will be incompatible with rural land designated at one unit per ten

   acres in the County; (d) harm will come to the underlying aquifer as a result of large areas of impervious surface rendering the area vulnerable to contamination by stormwater pollution; (e) protection plans proffered by the City do not require special design of retention areas to prevent pollution or stop alteration of natural recharge; (f) the Plan Amendment does not meet the standards set forth in Section 163.3177(6)(d), Florida Statutes, and Rule 9J-5.011(1), Florida Administrative Code, protecting the natural resources;

   (g) a development agreement between the City and Red Oak approved by the City on April 8, 2003, does not adequately protect the many karst features and cave systems located on, under, and near the subject parcel, and the agreement includes land that is not a subject of this litigation; (h) the Plan Amendment should not have been adopted without DRI review even though the City was a Sustainable Community at the time of adoption; (i) the Plan Amendment is inconsistent with the goals of sustainability as set forth in Section 163.3244, Florida Statutes; (j) The Plan Amendment does not separate urban and rural uses or buffer them; (k) the Plan Amendment by its nature creates urban sprawl in an area unsuitable for urban development; (l) no analysis was presented for the suitability of five units per acre or the need for redevelopment to better use public services and utilities

   already in place, to better serve city residents and improve blighted areas; (m) the Plan Amendment does not protect adjacent agricultural activities, unique and important farmlands, and soils; (n) the Plan Amendment allows for land use which increases taxpayer cost of providing and maintaining facilities and services including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, and fire and emergency response, and it inhibits infill or redevelopment of existing city neighborhoods; and

   (o) the Plan Amendment fails to recognize secondary impacts to natural resources, the significant risk to the local population, and the degradation of regionally significant resources like Silver Springs which will ultimately receive water traveling underground to the spring.

8. With a few exceptions discussed below, SHASTA failed to present evidence on any of the issues raised in its Third Amended Petition for Administrative Hearing or the parties' Joint Prehearing Stipulation; thus, the unsupported allegations have been considered to be abandoned and are hereby denied. At hearing, the principal focus of SHASTA's evidence generally related to the impact of development on a cave system located on the property. SHASTA also expressed concerns regarding the development of property in karst

   topography, and the general loss of agriculture lands in the City.

   1. The Parties

      
      

9. The City is a local government having the responsibility of preparing a comprehensive plan and amendments thereto in a manner which conforms with Chapter 163, Florida Statutes.

10. Red Oak is an affected person within the meaning of Section 163.3184(1)(a), Florida Statutes, since it owns the property which is the subject of the challenged Plan Amendment, and it submitted oral and written comments to the City during the adoption process.

11. SHASTA is a not-for-profit corporation formed in September 1985. The City and Red Oak have stipulated that SHASTA has approximately 120 members, of whom at least 20 reside and own property within the City; however, property tax records offered into evidence by SHASTA show that as many as

    35 members own property within the City. They have also stipulated that at least one member (Miriam Cook) appeared before the City during the adoption process and made comments and recommendations on behalf of SHASTA regarding the Plan Amendment. There is no evidence that SHASTA "resides," or owns a business or property, within the City.

12. According to its representative, SHASTA members have an interest in the preservation, protection, and conservation of natural resources in the high-water-recharge and karst- sensitive lands adjacent to and within the City. At least one of its members (Darlene Weesner) has "intermittently" attended City Council meetings over the years (although it is unclear whether such attendance was on her own behalf or on behalf of SHASTA), and it can be reasonably inferred from the evidence that, through its members, the organization has actively attempted to provide information to the City and County regarding various planning decisions by those two bodies. Although its representative referred at hearing to a document describing various projects undertaken by SHASTA over the years, presumably related to natural resources and land use, the document was never offered, or received, in evidence.

    1. The Property

       
       

13. As noted above, an operational horse farm now exists on the property, which consists mainly of improved pasture lands with many trees. It lies just southeast of the intersection of State Highway 200 (the City's busiest commercial corridor) and Interstate Highway 75 (I-75), a heavily-traveled, north-south, major roadway which cuts through the western part of the City. Just north of the property is the Paddock Park Development of Regional Impact

    (DRI), which consists of various commercial uses (a Publix shopping center, restaurants, and hotels), office space, medical offices, professional offices, and surgical centers, and (closest to Red Oak's property) two large apartment complexes with a total of 768 apartments. The western side of the property adjoins I-75, and an industrial park has been partially developed directly west of the property across I-75. Just beyond the industrial park lies the Heathbrook DRI, which consists of 900 acres, the majority of which have been designated as Low Density Residential with the remaining part designated for a retail mall. To the south of the property is the Westbury Subdivision which has been developed as a gated community with single-family residences on large lots. To the east of the property lies an approved Planned Unit Development (PUD) known as the Shady Road PUD, which contains a combination of several hundred single-family and multi-family homes. Just east-northeast of the property is a recently constructed Catholic high school which was the subject of Case No. 98-5019GM, a proceeding in which SHASTA also participated. Other nearby development (to the northeast) includes a Super Wal-Mart and a 16-screen movie theater complex. Finally, the City and County have currently approved and are planning to construct a four-lane road that would abut the southern boundary of the property and cross over I-75 so as to relieve

    traffic congestion on State Road 200 and nearby 17th Street. Collectively, these facts indicate that the Red Oak property is located near the fastest growing and most intensively developed area of the City and County.

14. Like much of the other land in the County, Red Oak's property is located within a karst sensitive area. In these areas, the limestone which contains the Floridan aquifer exists at, or is very close to, the land surface, and the absence of cover material (sands, clays, and other material) over the limestone allows the rapid movement of surface water into the aquifer with little treatment. Thus, in much of the County (and the City), the Floridan aquifer (which is the main source of potable water) has a greater potential for contamination from surface pollutant sources than in other areas of the State. Because of these conditions, the St. Johns River Water Management District (District) has promulgated special rules governing the discharge of stormwater runoff which apply only to karst sensitive areas, such as those found in Alachua and Marion Counties.

15. The property is also the site of a cave system known

    
    

    as the Briar Cave, considered to be a "medium difficulty cave" for recreational purposes, which lies underneath approximately

    4.1 acres of the property. The cave is considered "unique" in

    the sense that only a handful of cave systems in the State have formations similar to Briar Cave.

16. Red Oak and the City have recently entered into a Development Agreement under Sections 163.3220 through 163.3243, Florida Statutes, that places a number of restrictions on the development of the property, protects Briar Cave, and imposes groundwater protection provisions. For example, the Development Agreement requires that the developer implement an integrated pest management plan addressing the application of fertilizers and pesticides on the property; that additional restrictions (more stringent than District standards) be used in constructing the stormwater retention areas on the property; and that a water quality monitoring plan be implemented to monitor groundwater

    on the site. It also requires the property to be developed as a PUD under the City's land development regulations. This will enable the City to exercise more control over any future development of the property, including the right to approve where buildings will be placed on the property.

    1. The Plan Amendment

       
       

17. Because the City was a participant in the Sustainable Communities Demonstration Project, there has been no formal state or regional review of the Plan Amendment. Thus, while the DCA offered what can be described as informal

    comments on a limited aspect of the Plan Amendment, it made no statutory determination as to whether the Plan Amendment is or is not in compliance.

18. The Plan Amendment simply amends the City's FLUM to change the land use on Red Oak's property from a combination of two County land use classifications to Low Density Residential. In making this decision, the City relied upon the staff's consideration of the type of soil on the site; the terrain of the site; the protection of Briar Cave, sinkholes, or wetlands on the site; and other factors concerning the suitability of the property for development. The City also considered the fact that the property was located within its Urban Service Area, which meant that the City had the exclusive right (as opposed to the County) to provide water and sewer services after the property was annexed into the City. Finally, the City considered the compatibility of the property with the surrounding uses, including its proximity to adjacent DRIs, malls, a large movie theater, shopping centers, and other heavy commercial and retail development. From this, it made a determination that the Low Density Residential land use is the most appropriate land use designation to buffer the intensive urban uses of property immediately to the north of the property from the residential and agriculture properties to the south.

19. The data relied upon by the City at the adoption hearing is found in City Exhibits 19-21 received in evidence. Even though SHASTA failed to adduce any evidence to support its claim that the Plan Amendment was not based upon sufficient data and analysis, the City and Red Oak have established by a preponderance of the evidence that the Plan Amendment is based on adequate data and analysis, and that the City reacted to this data in an appropriate manner.

20. Besides the foregoing data, the City considered the comments of various governmental agencies, including the DCA, the District, and the County. The County did not object to the Plan Amendment, while the District's comments focused on protection of the cave and stormwater issues in karst sensitive areas. The City staff has responded to the District's concerns by incorporating a number of development restrictions (see Findings of Fact 15, 20, and 24) to protect these resources. The DCA was primarily concerned that the conceptual plan of development attached to the 1994 Settlement Agreement may constitute a DRI. However, that plan was later abandoned by Red Oak, and therefore the DRI issue raised by the DCA is no longer relevant.

    1. The cave

       
       

21. A valuable cave system known as Briar Cave is located on the property, and whose underground system takes up

    slightly more than four acres. Under the Development Agreement between Red Oak and the City, Red Oak must give a conservation easement to the City for the cave site. The City has mapped the system to ensure that no development will occur around the cave, and that no vehicular traffic will be allowed on top of the site. Testimony by Red Oak's witness Garman, who has personally inspected at least 90 percent of Briar Cave, established that the cave map used by the City is reasonably accurate to less than a five percent error, and that a 40-foot buffer zone around the 4.1-acre site will adequately protect the system. By adding this buffer zone to the conservation area, that area will total around 5.7 acres. In addition, public access to the cave will be restricted, and only those persons who are specially trained and equipped to enter caves will be given access to the cave system. Finally, before any development on the property begins, the City will require that the developer design a drainage system (using standards more stringent than even District criteria) that will protect the aquifer from runoff associated with the project.

22. Given these considerations, the preponderance of the

    
    

    evidence supports a finding that the cave system and aquifer will be protected from contamination, and that the Plan Amendment will not cause harm to Briar Cave.

23. Through its professional geologist, who relied on observations made by one of his staff some ten years ago or so, SHASTA also contended that the cave system (at least in the early 1990s) had an intermittent perched water table that occurs (during non-drought periods) in the sands, and assists in the formation of cave deposits such as speleothems, stalectites, and stalagmites. Although the significance of such a table (assuming one exists) was not fully explained in the record, presumably an improperly designed drainage system associated with any future development on the property could cause harm to the perched water table and lead to the dissolution of the cave formations.

24. In order to accurately determine if the cave has a perched water table, it would be necessary to install piezometers (monitoring wells), which measure water levels in the soil columns and the Floridan aquifer to ascertain whether there is a head difference between the two. Observations alone are insufficient to make that determination. In this case, piezometers were not used, and it is impossible to conclude with any degree of certainty that such a table exists. Although the cave does contain speleothems, stalectites, and stalagmites, as reported by witnesses Garmen and Boyes, the more credible evidence supports a finding that they were the result of infiltrating rainwater over long

    periods of time, and not a perched water table. Even assuming arguendo that such a table exists, the protective measures taken by the City will ensure that stormwater does not penetrate the cave.

    1. Stormwater runoff

       
       

25. As noted above, the District has promulgated additional requirements found in Rule 40C-41.063(7), Florida Administrative Code, which regulate the design and construction of stormwater management systems within karst sensitive areas. These criteria are designed to protect against stormwater runoff contamination of the underlying aquifer and are more stringent than other District criteria that apply in non-karst sensitive areas. In addition, the Development Agreement imposes further limitations (generally described in Finding of Fact 15) related to groundwater contamination which are even more restrictive than the District rules. It is undisputed that a surface water management system can be designed to protect the groundwater and cave system from contamination.

26. SHASTA also contends that based on its interpretation of infrared aerial photographs taken in the 1970s, a lineament (a linear subsurface feature) begins just southwest of the Red Oak property and runs across the property in a southwest to northeast direction and then northeast for

    several miles. It further asserts that if the Red Oak property is developed, the groundwater will be contaminated, and such contamination will then spread (presumably through the lineament) to the City's wellfield, which lies to the northeast of Red Oak's property.

27. The exact distance between Red Oak's property and the City's wellfield is unknown, although the wellfield appears to be at least several miles to the northeast. The area between the two sites already contains rather intensive urban development. SHASTA's concern here is based on the incorrect assumption that any development on Red Oak's property will automatically contaminate the groundwater. As noted above, however, it is undisputed that a surface water management system can be designed to protect the groundwater from any contamination caused by development of the property. In addition, the City has enacted a wellfield protection ordinance, which imposes special restrictions on any activity within 1,500 feet of the wellfield that might pose a threat to the City's water supply. Even assuming that a lineament exists, a fact which is subject to some debate by the experts in this case, the ordinance and other groundwater protections associated with development of the Red Oak property are sufficient to ensure that the City's water supply will not be at risk.

28. The preponderance of the evidence supports a finding that stormwater systems and development can be located within a karst sensitive area, including the subject property, that will adequately contain and control stormwater runoff and prevent groundwater contamination. Thus, the Plan Amendment poses no risk to groundwater or aquifer recharge areas, as alleged by SHASTA.

    1. Other Allegations

    
    

29. In the absence of any credible evidence regarding the remaining allegations raised by SHASTA, those contentions are rejected.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

31. The City and Red Oak have contested SHASTA's standing in this proceeding. To have standing to challenge the Plan Amendment, SHASTA must demonstrate that it is an "affected person," as that term is defined by Section 163.3184(1)(a), Florida Statutes. Thus, it must show that the corporation itself, as opposed to its individual members, owns property, resides, or owns or operates a business within the boundaries of the City, and that the corporation, through one of its members and specifically on the corporation's behalf,

    submitted oral or written comments, recommendations, or objections to the City during the period of time beginning with the transmittal hearing for the plan amendment and ending with the adoption of the plan amendment. On these issues, the parties have stipulated that at least one SHASTA member submitted oral or written comments, recommendations, or objections to the City during the adoption of the Plan Amendment. However, because SHASTA admittedly does not reside or own property within the City, or own a business, to demonstrate standing, it must necessarily show that it operates a business within the City.1

32. Section 163.3184(1)(a), Florida Statutes, is clear and unambiguous. As is relevant to SHASTA's standing, it simply requires that SHASTA operate a "business" within the City in order to qualify as an affected person. Since the statute does not define the word "business," that word should be given its plain and ordinary meaning. See, e.g., State, Dept. of Bus. Reg., Div. of Alcoholic Bev. & Tobacco v. Salvation Limited, Inc., 452 So. 2d 65, 67 (Fla. 1st DCA 1984)(where a statute does not define a term, it should be given its plain and ordinary meaning); State v. J.H.B., 415 So. 2d 814, 815 (Fla. 1st DCA 1982)("if a statute or rule uses a word without defining it, then its common or ordinary meaning applies.") "Business" means in part: "The

    occupation, work, or trade in which one is engaged . . . A specific pursuit or occupation . . . Commercial, industrial, or professional dealings . . . A commercial enterprise or establishment . . . ." Webster's II New College Dictionary,

    p. 149 (1999). Under this rule of statutory construction, then, in order to be operating a business, the affected person (or corporation) must be carrying on some form of a trade, profession, vocation, or similar endeavor, as those activities are commonly understood. Therefore, it is unlikely that activities such as publishing an association newsletter, conducting meetings, and advocating certain positions on land use planning decisions constitute the operation of a "business."2 While this interpretation may seem to be unduly restrictive, had the Legislature intended to place a more expansive meaning on the word "business" so as to include these other types of activities, it could have easily done so.

33. In light of the above, it is concluded that SHASTA is not operating a business within the City. While SHASTA is clearly engaged in a number of worthwhile endeavors on behalf of its members, these activities do not equate to the operation of a business, as contemplated by the statute. Even assuming arguendo that the type of activities described above constitute the conduct of a business, there is insufficient evidence in this record to show that SHASTA qualifies on that

    basis. This being so, SHASTA lacks standing to bring this action. Even so, SHASTA has been allowed to fully participate in this proceeding and to challenge the merits of the Plan Amendment; therefore, an adverse ruling at this juncture has not hampered its ability to participate. Finally, to the extent the issues raised by SHASTA have been addressed in the record, they have been considered and ruled upon in this Recommended Order.

34. After being designated as a sustainable community under former Section 163.3244, Florida Statutes, a local government may adopt plan amendments without the necessity of those amendments being subjected to state and regional review. However, affected persons "may file a petition for administrative review pursuant to s. 163.3187(3)(a) [which governs small scale amendments] to challenge the compliance of an adopted plan amendment." Section 163.3244(5)(a), Florida Statutes. Under that process, Plan Amendment 97-39C "is presumed to be correct" and will be "sustained unless it is shown by the preponderance of the evidence that the amendment is not in compliance with the requirements of the act." Section 163.3187(3)(a), Florida Statutes. Final order authority in a Section 163.3244 proceeding rests with the local government, even if an amendment is found to be not in compliance. Hobe Sound Citizens Alliance, Inc. et al. vs.

    Martin County et al., DOAH Case No. 99-4554GM, Order On Administration Commission Jurisdiction and Forwarding Proceeding (Admin. Comm., June 27, 2001).

35. "In compliance means consistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, with the state comprehensive plan, with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code, . . . and with the principles for guiding development in designated areas of critical state concern." Section 163.3184(1)(b), Florida Statutes.

36. The more persuasive evidence supports a conclusion that Petitioner has failed to prove by a preponderance of the evidence that the Plan Amendment is not in compliance. Accordingly, the City's determination that the Plan Amendment is in compliance "is sustained." Section 163.3187(3)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the City of Ocala enter a final order sustaining its determination that Plan Amendment 97-39C adopted by Ordinance No. 2689 on August 5, 1998, is in compliance.

DONE AND ENTERED this 16th day of June, 2003, in Tallahassee, Leon County, Florida.

___________________________________ DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2003.

ENDNOTES

1/ At hearing, the City and Red Oak cited the case of Sunshine Ranches Homeowner's Association, Inc. et al. vs. Broward County and Department of Community Affairs et al., DOAH Case Nos. 89- 2645GM and 89-2646GM (DCA, Final Order July 26, 1990), as being relevant in determining SHASTA's standing. There, in determining whether an association had standing to challenge a plan amendment, the hearing officer relied upon the traditional standing test applied to associations in proceedings arising under Sections 120.56 and 120.57(1), Florida Statutes. Under that test, first enunciated in Fla. Home Builders Assn. v.

Dep't of Labor and Employ. Sec., 412 So. 2d 351 (Fla. 1982), an

association can show that its substantial interests are affected (and thus have standing) if the subject matter of the petition is within the general scope of its interests and activity; the relief requested in its petition is of a type appropriate for it to receive on behalf of its members; and a substantial number of its members, although not necessarily a majority, are substantially affected by the proposed agency action. However, this test is inappropriate here because the law does not require that a person (or association) be "substantially affected" in order to challenge a plan amendment. Coastal Development of North Fla., Inc. v. City of Jacksonville, 788 So. 2d 204, 209 n. 25 (Fla. 2001)("Section 163.3187(3) [here Section 163.3244(4)] confers standing in

these administrative hearings to any 'affected person' as broadly defined in section 163.3184(1)(a), without the need to allege an injury.") Therefore, whether a majority of SHASTA's members reside, own property, or own or operate a business within the City is not relevant in determining whether the corporation is an "affected person." Likewise, the number of SHASTA members who qualify in their own right as affected persons is irrelevant. Thus, the so-called "associational standing" theory for determining standing does not apply in a plan amendment challenge. Finally, because Coastal Development holds that substantial interest implications do not apply, by implication that decision overrules the holding in St. Joe Paper Co. v. Dept. of Comm. Affrs., 657 So. 2d 27, 29 (Fla. 1st DCA 1995) that an affected person must show that the business being operated is potentially subject to the constraints of the local comprehensive plan.

2/ To the extent this ruling differs from the result reached in other administrative decisions, including The Sierra Club et al. vs. St. Johns County, Department of Community Affairs, et al., DOAH Case Nos. 01-1851GM and 01-1852GM, 2002 WL 1592234

(DCA, Final Order July 30, 2002) and 1000 Friends of Florida, Inc. and Audubon Society of the Everglades, Inc. vs. Department of Community Affairs et al., DOAH Case No. 01-0781GM (DCA, Final Order Dec. 28, 2001), those decisions are either distinguishable or inapplicable to the facts found here. In its Proposed [Recommended] Order, SHASTA also cites the case of Department of Community Affairs et al. vs. Lee County et al., DOAH Case No. 95-0098GM, 1996 WL 1059844 at 32 (Admin. Comm.,

Final Order July 25, 1996), which predates the Coastal Development decision, to support its standing. In that case, an environmental organization (Responsible Growth Management Coalition, Inc.) was held to have standing because a large majority of its 157 members resided or owned property in Lee County, and because the organization maintained offices and conducted educational programs within the County. As noted in endnote 1, the number of members who reside or own property within the City is irrelevant to the standing issue. Further, even if maintaining offices and conducting educational programs arguably constitute the operation of a "business," there is no evidence in this record that SHASTA maintains offices and conducts educational programs within the City.

COPIES FURNISHED:

Darlene Weesner

655 Southwest 80th Street Ocala, Florida 34476-4907

W. James Gooding, III, Esquire Gilligan, King & Gooding, P.A. 1531 Southeast 36th Avenue Ocala, Florida 34471-4936

Bryce W. Akerman, Esquire Gray, Ackerman & Haines, P.A.

125 Northeast First Avenue, Suite One Ocala, Florida 34470-6652

David L. Jordon, Acting General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the City.

Docket for Case No: 98-004144GM

Orders for Case No: 98-004144GM