STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARY J. BARTLETT, ROBERT S. INGLIS, ) HELEN THOMAS, PAUL LUSSIER, JOAN ) LUSSIER, and WANDA NEGRON, )
)
Petitioners, )
)
vs. ) Case No. 01-4914GM
)
MARION COUNTY, )
)
Respondent, )
)
and )
)
DINKINS AND DINKINS, INC., )
)
Intervenor. )
____________________________________)
RECOMMENDED ORDER
On April 30, 2002, a formal administrative hearing was held in this case in Ocala, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioners: Mary M. Bartlett, pro se
8080 Northwest 2nd Street Ocala, Florida 34482
Robert S. Inglis, pro se 8078 Northwest 2nd Street Ocala, Florida 34482
Helen Thomas, pro se
8130 Northwest 2nd Street Ocala, Florida 34482
Paul and Joan Lussier, pro se 8071 Northwest 2nd Street Ocala, Florida 34482
Wanda Negron, pro se
8076 Northwest 2nd Street Ocala, Florida 34482
For Respondent: Thomas D. MacNamara, Esquire
Marion County's Attorney's Office 601 Southeast 25th Avenue
Ocala, Florida 34471
For Intervenor: Steven Gray, Esquire
Hart & Gray
125 Northeast First Avenue, Suite 1 Ocala, Florida 34470
STATEMENT OF THE ISSUE
The issue in this case is whether Marion County's small- scale comprehensive plan amendment 01-S27 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes (2001). Specifically, Petitioners contend that the amendment is: (1) inconsistent with goals, objectives, and policies of the County's Comprehensive Plan--specifically, Future Land Use Element (FLUE) Objectives 1 and 2, and Policies 2.7 and 2.8; and (2) inconsistent with Florida Administrative Code Rule 9J- 5.006(5), which requires that proliferation of urban sprawl be discouraged. (Other contentions are inapplicable. See Conclusions of Law, infra.)
PRELIMINARY STATEMENT
On December 11, 2001, Marion County adopted small-scale comprehensive plan amendment 01-S27, which changed the land
use designation of a 2.375 acre parcel of land on the northwest corner of the intersection of State Road 40 and NW 80th Avenue near Ocala, Florida. On December 24, 2001,
Mary J. Bartlett and Robert S. Inglis filed a Request for Hearing on Small Scale Amendment to Marion County Comprehensive Plan. On January 11, 2002, final hearing was scheduled for March 1, 2002, in Ocala, Florida; and the parties were required to meet to prepare and file a prehearing stipulation.
During a meeting on February 6, 2002, to prepare the prehearing stipulation, Bartlett and Inglis expressed their intention to add petitioners; and Dinkins and Dinkins, Inc. expressed its intention to intervene. In light of those developments, the parties moved for a continuance; and on February 14, 2002, final hearing was continued to April 30, 2002.
As the record reflects, there were numerous filings on and after February 6, 2002. Many of them were confusing, some were mislabeled, and some were not authorized by the rules of procedure. Without detailing all the rulings required to sort out and dispose of these filings, suffice it to say that leave was granted to Dinkins and Dinkins, Inc. to intervene; and an Amended Request for Hearing on Small Scale Amendment to Marion County Comprehensive Plan was filed on March 8, 2002, naming
Helen Thomas, Paul and Joan Lussier, and Wanda Negron as additional Petitioners.
Petitioners and the County filed a Prehearing Stipulation on February 27, 2002 (although final hearing already had been continued to from March 1 to April 30, 2002). Intervenor apparently participated in conferences held for purposes of preparing the Prehearing Stipulation but did not sign and apparently did not participate in preparation of the Prehearing Stipulation itself. This Prehearing Stipulation was not amended prior to final hearing.
At final hearing, each Petitioner testified; Petitioners also called two additional witnesses and had Petitioners' Exhibits 1, 5-7, 8A-B, 9, 10, 13-16, and 18-22 admitted in evidence. The County called two witnesses, including its Planning Department Director, who testified as an expert, and had Respondent's Exhibits 1-8 admitted in evidence.
Intervenor cross-examined witnesses and adopted the County's presentation but called no witnesses and offered no exhibits.
After presentation of evidence, the parties were given ten days (until May 10, 2002) to file proposed recommended orders (PROs); subsequently, the County's unopposed letter request to extend the time for filing PROs to May 15, 2002, was granted. Petitioners timely filed a Synopsis of Petitioners' Case; the County and Intervenor timely filed a
joint PRO. The post-hearing filings have been considered in preparing this Recommended Order.
FINDINGS OF FACT
Petitioners all reside in the Sherman Oaks subdivision in Marion County, Florida. Sherman Oaks is adjacent to and northwest of the parcel which is the subject of the County's small-scale comprehensive plan amendment 01- S27 (Plan Amendment). This "Amendment Parcel" consists of
2.375 acres located at the northwest corner of the intersection of State Road 40 (oriented east-west at that location) and NW 80th Avenue (oriented north-south at that location) (the Intersection) near Ocala, Florida. The Plan Amendment changes the land use designation for the Amendment Parcel from Urban Reserve to Commercial.
Pertinent History of the County's Comprehensive Plan.
The County originally adopted its Comprehensive Plan in January 1992. Because of an objection by the Department of Community Affairs (DCA) that the original Comprehensive Plan allocated too much land area to the Urban area, the County adopted remedial amendments on April 7, 1994, which added a new land use classification, Urban Reserve.
The Comprehensive Plan defines the Urban Reserve land use classification as follows:
This classification provides for the expansion of an urban service area or an
urban expansion area in a timely manner. The underlying land uses in this classification shall be those of the rural lands until, through the Plan Amendment process, these areas are designated as Urban Expansion Area or Urban Service Area on the Future Land Map series.
Commercial land use designation falls within the generalized Urban Area category in the County's Comprehensive Plan.
From the date of the adoption of remedial amendments in 1994 through this date the Amendment Parcel has had a land use designation of Urban Reserve. The Amendment Parcel is part of a larger parcel of land designated Urban Reserve which extends for approximately a mile to the west of the Amendment Parcel, half a mile to the south of the Amendment Parcel, and greater than two miles to the north of the Amendment Parcel. (There also is some Medium Density Residential, which falls with the generalized Urban Area land use category, approximately two miles north of the Amendment Parcel; this is a major residential development called Golden Ocala). All of the property on the east side of the Intersection for approximately half a mile on either side of State Road 40 has had a land use designation of Urban Expansion, which allows urban and commercial uses, since 1992.
Marion County has extensive areas in the western half
of the County designated as Rural Land. Approximately a mile west of the Amendment Parcel, the property along the north and
south sides of State Road 40 changes land use designation from Urban Reserve to Rural Land.
Prior to adoption of the County’s Comprehensive Plan in 1992, the Amendment Parcel had a general retail zoning classification of B-2 (Community Business), which has remained in place since the date of the Comprehensive Plan adoption. The Plan Amendment would allow the Intervenor to make immediate use of the Amendment Parcel under its existing zoning classification of Community Business.
The County’s Comprehensive Plan also contains a land use classification of Rural Activity Center (RAC) for existing commercial nodes in the Rural Land area. According to the definition in the Comprehensive Plan, this classification:
provides for the utilization of mixed-use areas and the infilling of those areas under appropriate circumstances. Rural Activity Centers provide for a nodal-type development pattern.
When the Comprehensive Plan was originally adopted in 1992, the County identified a number of RACs and included them on the Future Land Use Map in the Comprehensive Plan. The Intersection was not made a RAC in 1992 because it was surrounded by Urban Expansion lands that were changed to Urban Reserve in 1994. Otherwise, it probably would have been designated a RAC because there already was commercial development on the east side of the Intersection in 1992.
Designation as a RAC would have allowed Intervenor to make use of its B-2 (Community Business) zoning classification from 1992 forward.
The evidence was not clear why Castro's Corner at the intersection of U.S. Highway 27 and County Road 225A was designated a RAC. It is not now surrounded by Rural Lands; however, from the evidence presented, it is possible that Castro's Corner was surrounded by Rural Lands at the time it was designated a RAC.
Pertinent History of the Amendment Parcel
In light of the see-saw history of decision-making on applications for comprehensive plan amendments affecting the Amendment Parcel since 1998, it is not surprising that Petitioners are perplexed by this Plan Amendment.
In 1998 application was made to change the land use designation from Urban Reserve to Commercial on a parcel that included the Amendment Parcel and approximately seven additional acres lying immediately to the west of the Amendment Parcel, for a total of 9.9 acres, with the entire application parcel having frontage on State Road 40. The County's Planning Department recommended approval of the land use amendment. Staff's report stated that the proposed Commercial land use designation would "continue the formation of a commercial node at the intersection . . . consistent with
FLUE Policy 2.7"; would "coordinate development with sufficient roadway capacity and access management procedures, and available water and sanitary sewer facilities as required by FLUE Policy 2.8"; was "compatible with the existing commercial uses on the east side of the intersection"; and was "generally compatible with the areas's [sic] topography, soils and environmental features." Staff's report concluded that the recommendation for approval was based on findings that the request would "not adversely affect the public interest"; was "consistent with the identified objectives and policies in the Marion County Comprehensive Plan"; and was "compatible with the surrounding land uses." The County's Planning Commission agreed with planning staff's recommendation and voted 7-0 for approval, but the County Commission denied the application.
In 2000 the Amendment Parcel was included in another application for a land use designation change from Urban Reserve to Commercial on 13.88 acres in the northwest quadrant of the Intersection. This time, the Planning Department recommended denial. As to compatibility with the goals, objectives, and policies of the County's Comprehensive Plan, staff's recommendation was based on findings that the proposed amendment was "not compact and contiguous to the Urban Area (FLUE Policy 2.18)"; did "not preserves [sic] the county's rural areas while allowing the provision of basic services by
directing growth to existing urban areas and commercial nodes (FLUE Objective 3.0)"; "does not coordinate development with availability of public facilities such as centralized potable water and sanitary sewage facilities (FLUE Policy 2.18)"; "does not promote the efficient use of resources and discourage scattered development and sprawl because it is not located in an area of increasing urban residential development and commercial development (FLUE Policy 2.7)"; and "does not encourage development that is functional and compatible with the existing land uses adjacent and in the surrounding area (FLUE Policy 1.21)." As to consistency with Florida Administrative Code Rule 9J-5 urban sprawl indicators, staff found that the proposed amendment "promote[d] the development of low-intensity, low-density, or single use development"; "promote[d] urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban development"; did "not protect adjacent agricultural areas and activities"; allowed "for land use patterns or timing which disproportionately increases the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education health care, fire and emergency response, and general government"; did "not encourage development which would, by it's [sic] location,
provide a clear separation between rural and urban uses"; did "not encourage an attractive and functional mix of uses"; and "encourage[d] development which would result in the loss of significant amounts of open space." The report concluded that it was based on findings that "[g]ranting the amendment will adversely affect the public interest"; the "proposed amendment is not compatible with land uses in the surrounding area"; and "[g]ranting the amendment is not consistent with Chapter 163, Florida Statutes, Rule 9J-5, F.A.C., and the Marion County Comprehensive Plan." The Planning Commission voted 6-1 to recommend denial. The application was withdrawn prior to the transmittal hearing before the County Commission.
In August 2001, Intervenor submitted an application to change the land use on the property it owns at the Intersection (containing 2.85 acres) from Urban Reserve Area to Commercial. The southern boundary of the original application parcel consisted of 275 feet of frontage on the north side of State Road 40. The eastern boundary of the original application parcel fronted on NW 80th Avenue, with
459 feet of frontage.
The County's Planning Department recommended that Intervenor's application be denied. The stated basis for the recommendation was that the proposed plan amendment represented "an extension of urban type land use into the
rural area" and that "[d]evelopment of the property as commercial was not compatible with adjacent land uses." Planning staff took the position that the proposed Commercial land use designation did "not encourage compact, contiguous development (FLUE Objective 2)"; did "not preserve the County's rural character (FLUE Policy 2.7)"; did "not coordinate development with sufficient roadway capacity (FLUE Policy 2.8)"; and was "not compatible with the existing adjacent uses (FLUE Objective 1)." Staff also took the position that the proposed Commercial land use designation application would "promote urban sprawl as specified in the Urban Sprawl Rule 9J-5.006(5)(g)" because it was "not compatible with surrounding land use designations"; "discourage[d] a functional mix of uses"; and "discourage[d] [sic?] a land use pattern that disproportionately increases local government's fiscal burden of providing necessary public services." In conclusion, staff based its recommendation on findings that the application would "adversely affect the public interest"; was "not consistent with the identified objectives and policies in the Marion County Comprehensive Plan"; and was "not compatible with the surrounding land uses." The Planning Commission heard Intervenor's presentation and comments from objecting property owners, including Petitioners, and voted 4-3 to deny the application.
At a public hearing conducted on December 11, 2001, the County Commission heard Intervenor's presentation and comments from objecting property owners, including Petitioners. During the hearing, at the suggestion of the Commission, Intervenor agreed to amend the application to reduce the total amount of property for which the land use change was requested from the original entire parcel of 2.85 acres to a smaller 2.375 acre parcel (now the Amendment Parcel). The purpose of the reduction in the size of the Amendment Parcel was to exclude a heavily treed area on the north boundary of the original application parcel to create a buffer for residential property owners residing to the north and northwest of the Amendment Parcel. Intervenor also agreed to allow parallel access across the back (north) of the Amendment Parcel to the property fronting State Road 40 to the west, in the event of future development of those properties. After amendment of the application, the County Commission voted 5-0 to approve.
Amendment Parcel Characteristics and Surroundings.
Both State Road 40 and 80th Avenue in the area of the Intersection are heavily traveled and frequently congested. The Intersection is signalized, and traffic backs up for long distances during busy times when the light is red.
The Amendment Parcel and the land to the west between State Road 40 and Sherman Oaks to the north is vacant.
The property in the northeast quadrant of the Intersection has a land use designation of Urban Expansion, which allows commercial usage. The property in this quadrant of the Intersection is already commercially developed. There is a combination convenience store/restaurant building at the immediate Intersection. To the north of that parcel along 80th Avenue is Golden Hills Mobile Home Park and the sewage treatment facility serving the mobile home park.
The southeast quadrant of the Intersection also has an Urban Expansion land use designation and is also already commercially developed. A prior convenience/general store at the immediate southeast corner of the Intersection has been torn down, and a temporary fruit stand currently occupies the immediate corner. This quadrant of the Intersection also includes a two-story building with retail businesses on the first floor.
The property in the southwest quadrant of the Intersection, lying immediately to the south of the Amendment Parcel, has an Urban Reserve land use designation but is currently used as part of an operating horse farm.
While it may not completely explain the swings in the decision-making of the County's planning staff, the County
Planning Commission, and the County Commission with respect to northwest quadrant of the Intersection, the evidence was that traffic on both State Road 40 and 80th Avenue increased substantially in the five years preceding the County Commission's decision to approve Intervenor's amended application. During this time period, 80th Avenue to the south of the Intersection was extended farther southward to State Road 200, which was widened to six lanes during the same time period. In addition, the Marion County school system constructed a combination high school/middle school on SW 80th Avenue approximately two to three miles south of the Intersection, generating additional traffic. As a result of these changes (together with general growth in the County), 80th Avenue has become a major north/south corridor road in western Marion County, both to the north and to the south of State Road 40.
In addition, there was discussion at the County
Commission hearing on the Plan Amendment about the initiation by the Florida Department of Transportation (FDOT) of a four- laning road improvement project on State Road 40, including at the Intersection and to the east and west of this Intersection. It was represented that, while the project was not within FDOT's three-year work program, FDOT was in the process of acquiring large parcels for needed drainage
retention areas for the project, including a parcel to the west of the Amendment Parcel and a parcel encompassing most of the southeast corner of the Intersection. At final hearing in this case, written communications from FDOT regarding the project confirmed that FDOT had initiated the process of design and right-of-way acquisition for the project but did not have a finalized project time line. A preliminary project time line prepared by FDOT showed construction more than two years away, but the time line also established that the FDOT four-laning project on State Road 40 is underway. The prospect of four-laning State Road 40 played a part in the County Commission's thinking that the timing was right to change the land use designation of the Amendment Parcel to Commercial.
Intervenor's Alleged Inaccurate Representations
The County's application form cautions applicants that false statements on the application could result in denial. However, it was not proven that denial is mandatory in the case of any inaccuracy. Rather, the evidence was that information in the application can be corrected and supplemented during the review process.
Intervenor's application contained inaccurate representations as to the proximity of some public facilities in relation to the Amendment Parcel. Petitioners made no
attempt to prove the significance of those inaccuracies, except as to centralized water and sewer water facilities. Intervenor's application stated that the nearest centralized water and sewer facilities were those at the Golden Hills Mobile Home Park on the east side of NW 80th Avenue. The application also stated, as part of its justification, that private central water and sewer was available. The evidence proved that the Golden Hills sewage treatment facilities are presently inadequate for use by the mobile home park itself and are being upgraded to meet current needs of the park. The facilities probably would not be available for Intervenor's use at the Amendment Parcel.
While the Golden Hills sewage treatment facilities likely will not be available for Intervenor's use at the Amendment Parcel, the evidence was that the County is working with a large development called Golden Ocala, located approximately five miles north of the Amendment Parcel, for construction of a regional wastewater treatment plant to serve that development. If built, the regional facility might have capacity available for Intervenor's use at the Amendment Parcel.
Intervenor's application and presentation to the County Commission on December 11, 2001, stated that the Amendment Parcel is undeveloped and that there is no existing
agricultural use on the parcel. While these statements were not proven to be untrue, Petitioners presented evidence that hay was grown on the Amendment Parcel from the late 1980's through spring 2001. Three crops of hay were harvested each year. Each harvest consisted of approximately 18-20 bales; each bale brought approximately $45.
Petitioners questioned the accuracy of representations as to the natural buffer strip between the Amendment Parcel and Sherman Oaks. Petitioners did not dispute the existence of relatively dense trees in the buffer strip. However, they are concerned that the line of trees does not extend to the west all the way to the entrance to Sherman Oaks off State Road 40; if additional commercial development occurs to the west on State Road 40, there will not be a similar natural buffer.
Petitioners also point out that the trees in the natural buffer strip are not thick enough to form an impregnable barrier to access, light, and sound. They concede, however, that the natural buffer is helpful and that there is no similar natural buffer between them and commercial development to the east across NW 80th Avenue.
Petitioners concede that the 75-foot buffer strip is wide enough to contain the entire natural buffer. However, they thought the buffer strip would have to be 90 feet wide to
contain the drip lines of all the trees so as to protect their root systems. They conceded that the building setback line probably would prohibit construction of buildings within the drip line of the trees but were uncertain as to whether the setback line would apply to parking lots and driveways.
Petitioners' evidence was insufficient to prove that the 75- foot buffer was not enough to protect the natural buffer.
Petitioners' evidence was sufficient to prove that, during the presentation before the County Commission, Intervenor's representative may have misspoken or exaggerated on some points (e.g., the timing of FDOT's widening of State Road 40, the distance between the Amendment Parcel and the entrance to Sherman Oaks, and the extent of past and existing commercial development at the Intersection). But the evidence was that the County Commission questioned the information presented by Intervenor, and information also was presented by Petitioners and the County's planning staff; considering all the information presented, it was not proven that the County Commission based its decision on misinformation.
At the final hearing, Petitioners raised the issue of stormwater runoff. Petitioners questioned whether stormwater can be managed on the Amendment Parcel without adversely impacting Sherman Oaks. Evidence presented by Petitioners proved that topography would make onsite
stormwater management difficult. Natural runoff appears to flow in a northeasterly direction towards an already-stressed stormwater facility within Sherman Oaks. Intervenor suggested that the site could be "tilted" by grading to reverse natural runoff flow so as to contain runoff in the southwestern or western part of the site. Petitioners suggested that "tilting" may not be permissible due to the relatively shallow depth to limerock under the Amendment Parcel site, but Petitioners' evidence was not sufficient to prove that drainage could not be addressed onsite through "tilting."
Petitioners also questioned the accuracy of traffic counts presented in the Planning Department's staff report on Intervenor's application. Staff used 2000 traffic counts that did not take into account all of the increased traffic as a result of the opening of the new school south of the Amendment Parcel. But the County's Planning Director explained that the traffic analysis required for a land use designation change does not have to be as rigorous and accurate as the analysis required at the time of concurrency determination. At that time, Intervenor probably will be required to conduct a detailed and up-to-date traffic analysis that would take into account actual traffic counts related to the new school.
Other Pertinent Comprehensive Plan Provisions.
Objective 1 of the County's FLUE states:
Upon Plan adoption, growth and development will be coordinated by ensuring the appropriate compatibility with adjacent uses, topography, soil conditions, and the availability of services and facilities through the preparation, adoption, implementation and enforcement of innovative land development regulations, including mixed use techniques.
Objective 2 of the County's FLUE states:
In order to promote the efficient use of resources and to discourage scattered development and sprawl, Marion County shall establish and encourage development within Urban Areas. This will discourage the proliferation of urban sprawl, encourage infill and facilitate the provision of urban services through:
Land Development Regulations that specify standards which allow higher intensities of land use in areas where adequate services are available and where specific design criteria are met, and future land uses are coordinated with appropriate topography conditions and soil types.
A generalized Future Land Use Map which designates an appropriate amount of acreage in each land use category that reflects projected needs, existing development patterns, environmental suitability, availability of infrastructure, and community values.
Policy 2.7 of the County's FLUE states:
The County shall discourage scattered and highway strip commercial development by requiring the development of such uses at existing commercial intersections, other commercial nodes and town centers of mixed uses.
Policy 2.8 of the County's FLUE states:
The following performance criteria shall be followed when providing for the location of commercial and industrial land uses within the designated Urban Area:
Protection of the development from natural hazards by locating development away from areas that have natural hazards or that may contain sensitive natural resources;
Require concurrency be met to ensure adequate services from available public utilities and other urban services;
Minimize environmental impacts by ensuring all appropriate permits are obtained and adhered to;
Prevent over allocation of commercial land by requiring the adherence to needed acreage based on population projections; and
Provide buffering from other land uses to minimize conflicts.
Objective 4 of the Stormwater Management Sub-element of the County's Infrastructure Element states:
Marion County's land development regulations shall implement procedures to ensure that, at the time a development
permit is issued, adequate stormwater management facility capacity is available or the developer will be required to construct storm water facilities within his development according to County standards.
Policy 4.1 of the Stormwater Management Sub-element of the County's Infrastructure Element provides some detail as to required content of the procedures, including a requirement:
In addition, developers will comply where applicable with the Water Management districts flood control criteria for stormwater quantity and quality. (Citations omitted.)
Policy 4.3 of the Sanitary Sewer Sub-element of the County's Infrastructure Element provides in pertinent part:
The County's land development regulations shall provide for issuance of development permits within the identified wastewater service areas consistent with the following guidelines:
* * *
c. Where public wastewater treatment facilities are required, they shall be available concurrent with the impacts of development. Facilities which meet county specifications and the level of service standards for the service areas will be provided by the developer in the interim and will be connected to central facilities when they become available . . ..
Internal Consistency.
Petitioners presented no evidence that the Plan Amendment did not adhere to "needed acreage based on population projections."
Consistent with the pertinent provisions of the County's Comprehensive Plan itself, the County's Planning Department Director testified that the County's Comprehensive Plan encourages the planning concept of nodal commercial development (allowing commercial development on all four corners of an intersection). This planning technique allows clustered commercial development in commercial nodes, locating in outlying areas, to provide localized commercial services for residents. Notwithstanding testimony that Petitioners probably would not patronize retail stores at the Intersection, the expert testimony was that commercial node development is intended to assist in reducing trips and average trip lengths by providing limited commercial services to area residents without necessitating their travel to a centralized commercial area. In the County’s Comprehensive Plan, the concept of commercial node development in non-urban areas is the basis for the RAC land use designation. See Finding of Fact 7, supra. Both of the County's witnesses testified that commercial development of all four quadrants of the Intersection is consistent with the County’s Comprehensive
Plan policy of encouraging commercial node development because it has long-existing partial commercial development, is signalized, and provides access in all directions.
The evidence did not prove that the County's Comprehensive Plan requires traffic, sanitary sewer, or drainage (or any other) concurrency at the time of the adoption of a plan amendment. The County has adopted in its Land Development Code a concurrency management system requiring that concurrency be established prior to the issuance of a development order (such as a building permit). The evidence was that determining capacity and concurrency at the development order stage in the development process is standard and customary, and is used in a number of jurisdictions in the state. Regardless of the land use classification and zoning classification of the Amendment Parcel, when the Intervenor initiates application for approval of an actual development order, the Intervenor will be required under the County's Land Development Code to establish concurrency, including traffic, sanitary sewer, and drainage concurrency.
There was some evidence to support the contentions
of some Petitioners that commercial development of the Amendment Parcel would not be compatible with residential and rural land uses in the area and that that NW 80th Avenue is a
"line of demarcation" between urban uses and rural uses. But Petitioners failed to prove those contentions by the greater weight of the evidence, including the 1998 recommendations of the County Planning Department staff and Planning Commission to approve a land use change to Commercial west of NW 80th Avenue. In addition, the Comprehensive Plan's designation of land west of NW and SW 80th initially as Urban Expansion in 1992 and as Urban Reserve in 1994 anticipated ultimate urban development of this Intersection, as well as properties approximately a mile to the west of the Intersection. In addition, the Comprehensive Plan designated two RACs to the west of the Amendment Parcel on State Road 40 (between the Amendment Parcel and the City of Dunnellon). The first RAC is three miles to the west of the Amendment Parcel, and the second RAC is seven miles to the west of the Amendment Parcel. The evidence was that the Intersection would have been a RAC had it not been designated Urban Expansion and then Urban Reserve. Finally, at least one Petitioner conceded the point and contested only the timing of commercial development of the Amendment Parcel.
Alleged Urban Sprawl.
Petitioners presented no analysis of urban sprawl indicators. They also presented no evidence that the Plan Amendment allocated commercial land in excess of demonstrated
need in the County. As found, the Amendment Parcel is across NW 80th Avenue from existing commercial and other urban development; in addition, provision of nodal commercial development is intended to counter at least some symptoms of urban sprawl.
CONCLUSIONS OF LAW
For small-scale amendments, Section 163.3187(3)(a), Florida Statutes (2001), states:
The local government’s determination that the small scale development amendment is in compliance is presumed to be correct. The local government’s determination shall be sustained unless it is shown by a preponderance of the evidence that the amendment is not in compliance with the requirements of the Act.
(All cited sections refer to sections of the 2001 codification of the Florida Statutes.) There is no jurisdiction in this proceeding to adjudicate anything other than the "compliance" status of the Plan Amendment at issue.
Section 163.3184(1)(b) states:
"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, where such rule is not inconsistent with this part and with the principles for guiding development in designated areas of critical state concern.
(Section 163.3194(1)(b) was raised by Petitioners, but it relates to consistency of land development regulations with a comprehensive plan, which is not a "compliance" issue.)
Petitioners' reference to urban sprawl in Section 163.3177(11)(d) was inapplicable; that statute applies only to rural land stewardship areas, and the Amendment Parcel is not in one of them. Besides being beyond the jurisdiction of this proceeding, Petitioners' reference to Section 163.3194(1)(b) also was inapplicable in that it applies only to consistency of land development regulations with a comprehensive plan.
Remaining are Petitioners' contentions that the County's Plan Amendment is not "in compliance" for: (1) inconsistency with goals, objectives, and policies of the County's Comprehensive Plan--specifically, FLUE Objectives 1 and 2, and Policies 2.7 and 2.8; and (2) proliferation of urban sprawl, contrary to Florida Administrative Code Rule 9J- 5.006(5)(g), (i), (j), and (l). (All rule citations are to the current codification of the Florida Administrative Code.)
Notwithstanding issues raised as to the accuracy of information presented by Intervenor, Petitioners did not contend (or prove) that the Plan Amendment was not based on demonstrated need or was not supported by adequate data and analysis. See Section 163.3177(6)(a) and (8); Rule 9J- 5.006(2)(c); and Rule 9J-5.005(2).
Internal Consistency.
Section 163.3177(2) requires: "The several elements of the comprehensive plan shall be consistent . . . ." Rule 9J-5.005(5) repeats this admonition in subparagraph (a), and subparagraph (b) adds: "Each map depicting future conditions must reflect goals, objectives, and policies within all elements and each such map must be contained within the comprehensive plan." Elements of comprehensive plans are "consistent" if they are not in conflict with each other.
As reflected in the Findings of Fact, Petitioners did not prove by a preponderance of the evidence that the County's Plan Amendment is inconsistent with other provisions of the County's Comprehensive Plan.
Urban Sprawl
In pertinent part, Rule 9J-5.006(3)(b)8 requires that a plan's FLUE contain one or more specific objectives for each goal statement which address the requirements of Section 163.3177(6)(a) and which, among other things: "Discourage the proliferation of urban sprawl "
Although Rule 9J-5.006(5) provides in pertinent part:
Primary indicators. The primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl are listed below. The evaluation of the presence of these indicators shall consist of an analysis of
the plan or plan amendment within the context of features and characteristics unique to each locality in order to determine whether the plan or plan amendment:
Promotes, 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.
Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development.
Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments.
As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems.
Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils.
Fails to maximize use of existing public facilities and services.
Fails to maximize use of future public facilities and services.
Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law
enforcement, education, health care, fire and emergency response, and general government.
Fails to provide a clear separation between rural and urban uses.
Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities.
Fails to encourage an attractive and functional mix of uses.
Results in poor accessibility among linked or related land uses.
Results in the loss of significant amounts of functional open space.
Evaluation of land uses. The comprehensive plan must be reviewed in its entirety to make the determinations in (5)(g) above. Plan amendments must be reviewed individually and for their impact on the remainder of the plan. However, in either case, a land use analysis will be the focus of the review and constitute the primary factor for making the determinations. Land use types cumulatively (within the entire jurisdiction and areas less than the entire jurisdiction, and in proximate areas outside the jurisdiction) will be evaluated based on density, intensity, distribution and functional relationship, including an analysis of the distribution of urban and rural land uses. Each land use type will be evaluated based on:
Extent.
Location.
Distribution.
Density.
Intensity.
Compatibility.
Suitability.
Functional relationship.
Land use combinations.
Demonstrated need over the planning period.
Local conditions. Each of the land use factors in (5)(h) above will be evaluated within the context of features and characteristics unique to each locality. These include:
Size of developable area.
Projected growth rate (including population, commerce, industry, and agriculture).
Projected growth amounts (acres per land use category).
Facility availability (existing and committed).
Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl.
Projected growth trends over the planning period, including the change in the
overall density or intensity of urban development throughout the jurisdiction.
Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy.
Extra-jurisdictional and regional growth characteristics.
Transportation networks and use characteristics (existing and committed).
Geography, topography and various natural features of the jurisdiction.
Development controls. Development controls in the comprehensive plan may affect the determinations in (5)(g) above. The following development controls, to the extent they are included in the comprehensive plan, will be evaluated to determine how they discourage urban sprawl:
Open space requirements.
Development clustering requirements.
Other planning strategies, including the establishment of minimum development density and intensity, affecting the pattern and character of development.
Phasing of urban land use types, densities, intensities, extent, locations, and distribution over time, as measured through the permitted changes in land use within each urban land use category in the plan, and the timing and location of those changes.
Land use locational criteria related to the existing development pattern, natural resources and facilities and services.
Infrastructure extension controls, and infrastructure maximization requirements and incentives.
Allocation of the costs of future development based on the benefits received.
The extent to which new development pays for itself.
Transfer of development rights.
Purchase of development rights.
Planned unit development requirements.
Traditional neighborhood developments.
Land use functional relationship linkages and mixed land uses.
Jobs-to-housing balance requirements.
Policies specifying the circumstances under which future amendments could designate new lands for the urbanizing area.
Provision for new towns, rural villages or rural activity centers.
Effective functional buffering requirements.
Restriction on expansion of urban areas.
Planning strategies and incentives which promote the continuation of productive agricultural areas and the protection of environmentally sensitive lands.
Urban service areas.
Urban growth boundaries.
Access management controls.
Evaluation of factors. Each of the land use types and land use combinations
analyzed in Paragraph (5)(h) above will be evaluated within the context of the features and characteristics of the locality, individually and together (as appropriate), as listed in Paragraph (5)(i). If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction.
Innovative and flexible planning and development strategies. Notwithstanding and as a means of addressing any provisions contained in rules 9J-5.006(3)(b)8., 9J- 5.011(2)(b)3., 9J-5.003(140) and this subsection, the Department encourages innovative and flexible planning and development strategies and creative land use planning techniques in local plans. Planning strategies and techniques such as urban villages, new towns, satellite communities, area-based allocations, clustering and open space provisions,
mixed-use development and sector planning
that allow the conversion of rural and agricultural lands to other uses while protecting environmentally sensitive areas, maintaining the economic viability of agricultural and other predominantly rural land uses, and providing for the cost- efficient delivery of public facilities and services, will be recognized as methods 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.
(Only some of these provisions were cited by Petitioners in support of their contention that the Plan Amendment fails to discourage urban sprawl.)
Although not cited by Petitioners as a basis for their contention that the Plan Amendment fails to discourage urban sprawl, Section 163.3177(11), which sets out pertinent legislative intent, also is pertinent to the "urban sprawl" issue. It provides in pertinent part:
The Legislature recognizes the need for innovative planning and development strategies which will address the anticipated demands of continued urbanization of Florida's coastal and other environmentally sensitive areas, and which will accommodate the development of less populated regions of the state which seek economic development and which have suitable land and water resources to accommodate growth in an environmentally acceptable manner. The Legislature further recognizes the substantial advantages of innovative approaches to development which may better serve to protect environmentally sensitive areas, maintain the economic viability of agricultural and other predominantly rural land uses, and provide for the cost-efficient delivery of public facilities and services.
It is the intent of the Legislature that the local government comprehensive plans and plan amendments adopted pursuant to the provisions of this part provide for a planning process which allows for land use efficiencies within existing urban areas and which also allows for the conversion of rural lands to other uses, where appropriate and consistent with the other provisions of this part and the affected local comprehensive plans, through
the application of innovative and flexible planning and development strategies and creative land use planning techniques, which may include, but not be limited to, urban villages, new towns, satellite communities, area-based allocations, clustering and open space provisions,
mixed-use development, and sector planning.
It is the further intent of the Legislature that local government comprehensive plans and implementing land development regulations shall provide strategies which maximize the use of existing facilities and services through redevelopment, urban infill development, and other strategies for urban revitalization.
As reflected in the Findings of Fact, Petitioners did not prove by a preponderance of the evidence that the County's Plan Amendment is inconsistent with these statutes and rules.
Under Section 163.3187(3)(b)1., the ALJ's recommended order is submitted to DCA if it recommends that a small-scale amendment be found "in compliance."
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Community Affairs enter a final order finding that Marion County's small-scale amendment 01-S27 is "in compliance."
DONE AND ENTERED this 7th day of June, 2002, in Tallahassee, Leon County, Florida.
___________________________________
J. LAWRENCE JOHNSTON 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 7th day of June, 2002.
COPIES FURNISHED:
Mary M. Bartlett
8080 Northwest 2nd Street Ocala, Florida 34482
Robert S. Inglis
8078 Northwest 2nd Street Ocala, Florida 34482
Helen Thomas
8130 Northwest 2nd Street Ocala, Florida 34482
Paul and Joan Lussier 8071 Northwest 2nd Street Ocala, Florida 34482
Wanda Negron
8076 Northwest 2nd Street Ocala, Florida 34482
Thomas D. MacNamara, Esquire Marion County's Attorney's Office 601 Southeast 25th Avenue
Ocala, Florida 34471
Steven Gray, Esquire Hart & Gray
125 Northeast First Avenue, Suite 1 Ocala, Florida 34470
Steven M. Seibert, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Cari L. Roth, 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 within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 06, 2002 | Agency Final Order | |
| Jun. 07, 2002 | Recommended Order | Petitioners failed to prove that small-scale amendment was not "in compliance." |
