STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FRANCES Z. PARSONS,
Petitioner,
vs.
PUTNAM COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS,
Respondents,
and
FLORIDA RACING OF PUTNAM COUNTY, INC.,
Intervenor.
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RECOMMENDED ORDER
Notice was given and on January 22 and 23, 2003, a final hearing was held in this case. Pursuant to Sections 120.569, 120.57(1), and 163.3184(9)(b), Florida Statutes, the hearing was conducted by Charles A. Stampelos, Administrative Law Judge, in Palatka, Putnam County, Florida.
APPEARANCES
For Petitioner Frances Z. Parsons:
Michael W. Woodward, Esquire Keyser & Woodward, P.A.
Post Office Box 92
Interlachen, Florida 32148-0092
For Respondent Department of Community Affairs:
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For Respondent Putnam County:
Russell D. Castleberry, Esquire Post Office Box 758
Palatka, Florida 32178-0758
For Intervenor Florida Racing of Putnam County, Inc.: James L. Padgett, Esquire
Law Office of James L. Padgett Three North Summit Street
Crescent City, Florida 32112-2505 STATEMENT OF THE ISSUE
Whether the amendment to the Future Land Use Map (FLUM) of the Putnam County Comprehensive Plan (Plan) adopted by Ordinance No. 2001-33 on December 11, 2001, which changes the future land use designation on the FLUM of an approximately 29-acre site from "Rural Residential" to "Commercial," is "in
compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes, for the reasons set forth in the Petition for Administrative Hearing.
PRELIMINARY STATEMENT
On December 11, 2001, Putnam County (County) adopted Ordinance No. 2001-33. This Ordinance contains one amendment (Amendment) to the FLUM of the Putnam County Comprehensive Plan. The Amendment changes the future land use designation of
an approximately 29-acre parcel (Property) from Rural Residential to Commercial. The Putnam County Speedway (Speedway) is currently operating on the Property proposed for this change.
The Department of Community Affairs (Department) reviewed the Amendment and caused to be published a Notice of Intent to find it "in compliance." This Notice of Intent was published on February 13, 2002.
On or about February 28, 2002, counsel for Petitioner, Frances Z. Parsons, filed a Petition for Administrative Hearing with the Department, regarding this Notice of Intent. The County and Department were named as Respondents in the Petition. In June 2002, Florida Racing of Putnam County, Inc. (Florida Racing), filed for and was granted leave to intervene in this case in support of the Department and County.
Prior to the final hearing, Petitioner filed a Pre- Hearing Statement. Putnam County and Florida Racing joined in the Pre-Hearing Statement. Florida Racing also filed a Motion in Limine to prevent Petitioner from introducing evidence regarding any illegal activity or unpermitted construction at the raceway property. After hearing argument of counsel at the outset of the final hearing, the motion was denied.
This case proceeded to final hearing on January 22 and 23, 2003. At the final hearing, Petitioner called the
following witnesses: Dr. Frances Z. Parsons, the Petitioner; Robert Joseph Potter, Vice-President and Comptroller of Florida Racing; John P. Salmons, county planner for Putnam County; Raymond J. Spofford, A.I.C.P., senior planner for Putnam County; Russell Paul Darst, planner for the Department; James D. Stansbury, a principal planner for the Department; Fred Goodrow, A.I.C.P., an urban planning consultant and qualified expert in land use planning; and Brant Fegter, a resident of Putnam County.
Petitioner offered the following exhibits which were accepted into evidence: A and B; D-F; H-J; L; and O-S.
At the final hearing, Florida Racing called Raymond J. Spofford, A.I.C.P., senior planner for Putnam County. Florida Racing offered Intervenor Exhibit 1 into evidence.
At the final hearing, the Department called no witnesses and offered no exhibits for admission into the record. Putnam County similarly did not call any witnesses. Putnam County offered Exhibit 1 which was admitted into evidence.
The two-volume Transcript of the final hearing was filed February 26, 2003. After granting an unopposed motion to extend the time for filing proposed recommended orders, Proposed Recommended Orders were filed on April 7, 2003, by Petitioner, Florida Racing and Putnam County, filing jointly,
and the Department. The Proposed Recommended Orders have been considered in this Recommended Order.
FINDINGS OF FACT
Petitioner, Frances Z. Parsons, lives at 215 Woodbury Trail, Satsuma, Putnam County, Florida, which is approximately one mile from the racetrack (on the site subject to the Amendment, see Findings of Fact 14 and 15) and has resided there for over seven years. Dr. Parsons understood at the time she purchased the house that a racetrack had been in existence, but was not operational and that no evidence of a racetrack could be seen from the road.
A couple of years ago, Dr. Parsons noticed construction-type activity (e.g., earth-moving machines and erection of stadium-type bleachers and lights) occurring on the Property (racetrack site). Trees along the road were "bulldozed down," the site cleared, and a fence erected, after which, Dr. Parsons could see the racetrack from the road and racing commenced. Dr. Parsons also stated that the racetrack is operational and the noise level bothers her at her home.
Dr. Parsons described Satsuma as "about a half a mile wide" and "fairly settled for a rural areas, but not for -- it's certainly not downtown." Dr. Parsons stated that the community character has not changed in the last five years.
Dr. Parsons submitted oral or written comments and objections regarding the disputed Amendment during the period of time beginning with the transmittal hearing for the amendment and ending with the adoption of the amendment.
Respondent, Putnam County, is a political subdivision of the State of Florida. Section 7.54, Florida Statutes. The County is the local government that adopted the Amendment.
Respondent, Department of Community Affairs, is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes, which includes a determination of whether comprehensive plan amendments are "in compliance."
Intervenor, Florida Racing, is a private corporation and is the owner of the approximately 29 acres that are the subject of the challenged Amendment. Oral or written comments and regarding the disputed Amendment were submitted on behalf of Florida Racing during the period of time beginning with the transmittal hearing for the Amendment and ending with the adoption of the Amendment. Robert Joseph Potter is the Vice- President and Comptroller for Florida Racing.
The Amendment
In April 2001, Florida Racing submitted to the County an "Application for Amendment to the Putnam County Future Land
Use Map" (Application). This Application requested that the land use designation for an approximately 29-acre site, consisting of five contiguous parcels under the same ownership, be changed from "Rural Residential" to "Commercial" on the FLUM.
The Amendment was approved and transmitted to the Department for review under Section 163.3184(6)(a), Florida Statutes. The Department conducted this review, and raised no objections to the proposed FLUM change.
On December 11, 2001, the Putnam County Board of County Commissioners (Board) adopted the proposed Amendment by Ordinance No. 2001-33.
The Department timely caused to be published a Notice of Intent to find the Amendment "in compliance."
On or about February 28, 2002, Petitioner filed a Petition for Administrative Hearing regarding the Department's Notice of Intent. This Petition alleges that the Amendment should be found not "in compliance" on several grounds.
This challenge involves an existing development, a racetrack, on the Property. However, the Amendment would allow commercial development on the approximately 29 acres, subject to compliance with applicable Plan and Putnam County Zoning Ordinance (Zoning Ordnance) provisions. (In the Application, Florida Racing advised that proposed uses
included a raceway, mobile home park, restaurant, and related amenities.)
The Putnam County Speedway, the Surrounding Area, and the Review Process
The approximately 29-acre site (five parcels total (Property)) subject to the Amendment is the site of an existing dirt automobile racetrack with bleachers, a press box, associated structures, and a masonry building/house. A commercial mini-warehouse building (personal storage) is located on the westernmost parcel.
The racetrack is currently known as the "Putnam County Speedway" (Speedway).
The Property is located on the west side of U.S. Highway 17 South between the Dunn's Creek Bridge and Buffalo Bluff Road (County Road 309B).
The land surrounding the Property on the west, south, and east are designated as "Rural Residential" on the FLUM, the same as the Property prior to the proposed FLUM change.
The land to the north is designated as "Conservation" on the FLUM and designated as vacant and wetlands as existing land uses. The zoning is "A." See Endnote 8. The land to the east is zoned "A" and is vacant as the existing land use. The land to the north and east of the Property is part of the 1,707-acre Murphy Creek Conservation
area owned and managed by the St. Johns River Water Management District.
The land to the west is zoned "C-2; A" and has an existing land use of commercial, but a future land use designation on the FLUM of Rural Residential. There is also additional land to the west of the Property within the Murphy Creek Conservation Area, a couple of residences and a vacant subdivision that has been determined not to be vested for development. There is a parcel of land to the west that is also owned by Florida Racing.
The land to the south is zoned "C-4, C-1, C-2, [and] A" and is designated as vacant and commercial residential as existing land uses, and has a Rural Residential future land use designation on the FLUM. See Endnote 8. The land south of the Property across U.S. 17 includes an existing commercial establishment that includes a mini-warehouse building with outside storage of equipment and semi-trailers. (The mini- warehouse was rezoned in 1986.) Also, further south and west along U.S. 17, there are two or three additional commercial businesses. Mr. Spofford referred to this area as "a commercial cluster." However, most of the uses are nonconforming uses as to the existing Rural Residential future land use, and they would not be able to change to anything
more intensive or that would have more adverse impacts on the surrounding residential uses. 1
Behind the mini-warehouse building are two residential neighborhoods with two subdivisions, one with 22 lots of approximately one acre in size and the other with 19 lots, with most of the lots being significantly larger than those in the former subdivision. Another residential area further west than the two subdivisions consists of approximately 40 parcels of land which have been subdivided over time and never platted. About four of these parcels on
U.S. 17 are zoned for commercial use. There is also an existing aluminum business west with a C-4 zoning. It appears that almost all of these residential lots and parcels were created after the racetrack was established.
The racetrack was in operation prior to the adoption of the Plan and zoning regulations. There is evidence that a racetrack existed before 1975, but has not remained in continuous use throughout that time. The record does not detail the history of the racetrack from its initial approval some time prior to 1975 to the date of the adoption of the Amendment. There is inference that the racetrack was not actively or frequently used in the mid-1990s. (It is noted in the County Staff Report that "[a]n aerial from the Florida Department of Transportation dated February 1972 shows the
subject property cleared with what appears to be an oval dirt track. A 1964 aerial photograph did not show a racetrack on the subject property. A review of property appraisal data indicate the racetrack was established around the 1970 to 1972 period.")
At some point after approximately 1995, and prior to the adoption of the Amendment, racing returned to the Speedway.
An automobile racetrack is not an allowable or conforming use on land designated "Rural Residential." According to the Plan's Future Land Use Element (FLUE), "[t]he Rural Residential land use category depicted on the [FLUM] consists of water front development and developed areas interspersed within the active agricultural areas. These areas are somewhat isolated from the urban areas and rural centers. The development is situated primarily on large lots in the one to five-acre range and is either a homestead or a second home for people who seek the quiet enjoyment of living in a rural environment."
As a nonconforming use, the Speedway (racetrack) is subject to County land use and zoning provisions that limit or restrict the ability to undertake improvements. For example, according to the Putnam County Zoning Ordinance 88-1, as amended by Ordinance 91-31 (collectively referred to as County
Zoning Ordinance or Zoning Ordinance), the racetrack, as a nonconforming use, is restricted from being extended or enlarged, and repair of its structures is limited. For example, work may be done in any 12-consecutive month period on ordinary repairs, or on repair or replacement of 15 percent of the current assessed value of the particular structure if a nonconforming structure is involved, provided the cubic content of the structure as it existed on the date it became nonconforming shall not be increased in size.2
The intent of these nonconforming use restrictions is to "permit these nonconformities to continue until they are removed, but not to encourage their survival," and it is intended that such uses would become extinguished over time as a result of being prevented from expanding or extensively renovating their structures. See, e.g., County Zoning Ordinance, Sections 2-701-2-708.
On March 20, 1998, John Salmons, the Putnam County Planner, advised Tim Keyser, Attorney, that the nonconforming status of the Speedway was still in effect. Mr. Keyser was also informed, in part, that the "Putnam County Speedway may continue to operate under the provisions of the nonconforming use section of the Zoning Ordinance."
At the time Florida Racing purchased the racetrack in the 1990's (the specific date is uncertain), some of the
existing structures had deteriorated and were in need of repair and/or replacement. To accommodate the renewed activity in racing and the need to upgrade the racetrack, seating at the racetrack was rearranged, new seating was added for children, and a second access driveway was installed north of the existing driveway.
In 2000, in a series of letters to Mr. Potter, County staff raised concerns regarding plans to significantly upgrade the racetrack.
On September 26, 2000, Mr. Salmons advised Mr.
Potter "that the current zoning status for the [S]atsuma racetrack is Nonconforming. As a nonconforming use, the zoning ordinance acknowledges their existence, but does not encourage their survival. As such, there are very strict rules for repairing or maintaining a nonconforming use." Mr. Salmons also informed Mr. Potter that the Property had been designated "Rural Residential" on the County's FLUM at some point subsequent to the racetrack's initial operation. (The racetrack on the Property pre-dates the Plan, including the FLUM land use categories, including "Rural Residential.")
Mr. Salmons understood at the time that Mr. Potter had plans to "significantly upgrade the racetrack" and advised Mr. Potter that he "would not be able to proceed with [his] plans." In order to upgrade, Mr. Salmons advised Mr. Potter
that he would need to have the Property rezoned and given the current land use designation for the Property, Mr. Potter would need to obtain an amendment to the FLUM to change the Property's land use designation from "Rural Residential" to "Commercial." However, Mr. Salmons further advised that without doing an analysis of the proposed change, he suspected that "it would be difficult for staff to support such a change" "based upon what Future Land Use patterns surround the property." Finally, Mr. Potter was told that he could continue operations "as they were in the past." But, he could not "add seating, restaurants, structures, pave the track or do much more than do some minor maintenance at this time."
On December 27, 2000, Mr. Salmons sent Mr. Potter another letter similar in content to the September 26, 2000, letter. Apparently, Mr. Salmons was advised by Mr. Potter that he had already spent in excess of the 15 percent allowed in the Zoning Ordinance. Mr. Potter was advised to stop making improvements until the land use designation was changed and rezoning approved. (There have not been any legal proceedings initiated to determine whether the 15 percent threshold was crossed.)
On April 16, 2001, Florida Racing submitted the Amendment Application and requested the FLUM change suggested by County staff for the Property.3 (Florida Racing also
requested rezoning of the Property which is not the subject of this proceeding.)
Deficiencies in the applications were noted and additional information requested.
The County's FLUE of the Plan was adopted on December 12, 1991, and amended on August 24, 1993. Policy A.1.9.3.A.5. of the FLUE describes the "Commercial" land use category and provides in part:
The Commercial land use areas depicted on the [FLUM] are current locations of commercial development in the County with expansion areas provided and are intended to serve as the primary commercial locations for the next 10 years.
Secondary commercial locations are provided for in the policies for development in the urban service, urban reserve and rural center land use categories. Commercial land uses include activities that are predominantly associated with the sale, rental, and distribution of products or performance of service. Future development shall be allowed as follows:
The maximum permitted floor area for a site shall be 1:1.
The maximum permitted impervious surface shall be 70 percent of the site.4
The Staff Report dated July 11, 2001, was prepared by Mr. Spofford, A.I.C.P., a senior planner with Putnam County. As noted in the Staff Report, the purpose of the land use "change is to bring a non-conforming automobile racetrack into compliance with the" Plan.
Mr. Spofford testified that the scope of the Staff Report was broader than examining the racetrack. However, the primary focus of the Staff Report is the Property being used as a racetrack and not another commercial use.
It was determined that the automobile racetrack is a commercial attraction because it attracts spectators for a fee and further noted:
As such, the use is not appropriate for the Agriculture I and II and Rural Residential future land use categories. The site and surrounding area do not meet the intent and description of an Urban Service or Urban Reserve future land use category because urban type infrastructure does not currently exist and is not likely within the next 10 years. This means that the use is most appropriate for a Commercial future land use category. The subject site meets the intent of the Commercial category because it is a current location of a commercial- recreational-entertainment type use.
Mr. Spofford explained that the data to support the FLUM change is set forth in the Staff Report. (Mr. Salmons, Mr. Spofford's superior, believed the data in the Staff Report was adequate to support the FLUM change.) The Application was reviewed for consistency with the Plan and various provisions of Rule 9J-5. Staff made the following recommendation:
The existing automobile racetrack must go through a two step process to become compliant with the Comprehensive Plan and Zoning Ordinance. First, this proposed map amendment must be approved and adopted by the County, and found to be in
compliance by the Florida Department of Community Affairs (DCA). The purpose of this public hearing is to determine whether or not the proposed map amendment should be transmitted for state agency review. Therefore, the Planning Commission must recommend to either transmit the map amendment as proposed, transmit the amendment with recommended changes or not to transmit the map amendment. If the proposed map amendment is transmitted, then state agencies will review the proposed map amendment and return comments to the County in October.
The County would then likely hold public
hearing[s] to consider actual adoption of the map amendment in November and December. When these public hearings are held to consider the map amendment, a rezoning application would simultaneously be reviewed. A rezoning to Planned Unit Development is a negotiable process where the County can gain greater control of the use. If the proposed map amendment is not transmitted, the a rezoning will not be necessary and the automobile racetrack will continue to be a non-conforming use.
As a non-conforming use, code enforcement
action will be taken to have the improvements removed that consist of an expenditure greater than 15 percent of the assessed value of the structure(s), with the exception of the permitted work that includes the press box and new lighting.
All other improvements could be subject to removal. However, as a non-conforming use, the racetrack would be allowed to continue operation so long as it does not expand. This means that the County would not have much control over the days and hours of operation and other critical site design issues.
Although this is not the ideal location for a racetrack, the fact is it has existed on the subject property and has been determined to be a bona fide non- conforming use. Research of County
records and other known available sources of information indicates that the racetrack was established prior to the residential development in close proximity south of the subject site. The request for a large-scale comprehensive plan map amendment from Rural Residential to Commercial appears to be consistent with the Comprehensive Plan. Therefore, staff recommends that the proposed map amendment be transmitted to the Florida Department of Community Affairs with a request for their review.
On July 11, 2001, the Putnam County Planning Commission unanimously approved the FLUM change after receiving comments.
On July 24, 2001, the Board held a public hearing to consider the Amendment and approved same. The FLUM Amendment was transmitted to the Department.
Pursuant to the Department's review of the Amendment, a Memorandum dated October 4, 2001, was prepared by Russell Paul Darst, a planner with the Department, and routed to James Stansbury and Mike Sherman, the section administrator, and ultimately to Charles Gauthier, A.I.C.P., and Bureau Chief, who issued the Department's Notice of Intent. Mr. Darst, as well as others at the Department, had no objections to the Amendment.
In the Memorandum, Mr. Darst concluded: "The proposed FLUM change for this 29-acre property is from Rural Residential to Commercial. The property has been used for a
race track since about 1970. The amendment would change the FLUM designation for the property to reflect the actual and long-standing use of the property. This use is not allowed in the Rural Residential FLUM category." This was the crux of the data and analysis relied on by Mr. Stansbury of the Department. The Memorandum also reflected the Northeast Florida Regional Planning Council comment: "Since the raceway already exists, the land use change will not create any additional impacts to regional resources. The proposed land use change may even protect regional resources in the future by granting the County the ability to regulate the property under the most appropriate zoning classification."
Dr. Darst stated that in reviewing a FLUM amendment for the Department, it would be typical to examine the existing use of the land before making his recommendation.
In reviewing the County's proposed FLUM change,
Mr. Darst believed, based on his discussions with County staff, that the racetrack was not expected to expand (and not that it could not) and that the change in the FLUM would give the County "part of a means of gaining effective control over [the operation of the racetrack]." He reiterated that the FLUM change would reflect the actual and long-standing use of the Property as a racetrack.
On December 11, 2001, during the public hearing, the Board approved the FLUM Amendment and transmitted the approval package to the Department.
On February 13, 2002, the Department had published its Notice of Intent to find the Amendment "in compliance." The Challenges
Petitioner alleges that the Amendment is not "in compliance" on several grounds: first, there is no "need" for additional land to be designated for a commercial use in Putnam County; second, the Amendment and proposed land use is not compatible with the community character and surrounding land uses; and, third, the Amendment is inconsistent with provisions of the Plan, Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code.
Need
The term "need" as used in growth management refers to the amount of land required to accommodate anticipated growth. Section 163.3177(6)(a), Florida Statutes. Local governments are to analyze by acreage how much land within each land use category5 they need to accommodate projected growth through the planning timeframe, and then base their comprehensive plan on this estimate. Rule 9J-5.006(2)(c), Florida Administrative Code.
The calculus of need is rather simple and, for that reason, inexact. The calculation of how much land is needed to accommodate the projected population involves comparing what is available for development under the comprehensive plan with the projected population over the same planning timeframe applicable to the plan. An "allocation ratio" to express this need can be derived by dividing the development potential by the projected population. For example, if a comprehensive plan allocated 100 residential dwelling units over the planning timeframe and the jurisdiction's population was projected to increase by 100 over the same time, there would be an allocation ratio of 1:1. This ratio would express an exact match between supply and demand. A ratio of 2:1, on the other hand, would demonstrate that the jurisdiction had twice as much land as designated for use as the projected population is expected to need.
There is no allocation ratio adopted by statute or
rule by which all comprehensive plans and plan amendments are judged.
There is evidence that the County has more vacant land designated "Commercial" than is needed to accommodate its projected population.6 There is data and analysis which indicates an excess of vacant commercially-designation land on a County-wide basis. For example, Florida Racing Exhibit 1 is
a copy of data and analysis in support of the FLUE. This data and analysis indicates that at least as of 1991, and projected to 2001, the County has an over-allocation of need for commercial land of about two times or, stated otherwise, the County has a 2:1 allocation ratio for commercial. This data is reflected in Petitioner's Exhibit P.
Mr. Spofford explained that the population data was compiled prior to 1991, has not been updated, is not meant to provide a "detailed analysis," and it is only useful for providing the acreage for each planning district. The population for each planning district is then compared to the acreage to determine the allocation of commercial to service that population.
From a very general standpoint, Mr. Spofford analyzed the FLUM Amendment application in light of whether more commercial acreage was needed. Mr. Spofford explained that because the Property was so close to the edge of the planning district, it was difficult to compare the commercial and population need. However, Mr. Spofford opined that the Planning District 1 (which includes the Property) and the one to the northeast are not over-allocated for commercial use. He also opined that, generally, "more is needed, if -- especially if you're looking out 20, ten or twenty years."
Petitioner did not come forward with any independent or up-to-date analysis to demonstrate the County is in fact over-allocated for commercial land use.
On the other hand, Fred Goodrow, A.I.C.P., opined that the County was over-allocated regarding the need for more commercial in light of the data previously mentioned.
The existence and extent of any commercial over- allocation in Putnam County is, at best, fairly debatable. Nonconforming Use, Inconsistency, and Incompatibility
Petitioner asserts that the Amendment is not "in compliance" because it fails to eliminate or reduce a nonconforming use in violation of Section 163.3177(6)(a), Florida Statutes, and Rule 9J-5.006(3)(b)3. and (3)(c)2., Florida Administrative Code. Petitioner also argues that the Commercial land use designation which would attach to the Property is incompatible with the character of the community and adjacent land uses. Petitioner also contends that the Amendment is inconsistent with several Plan provisions. Section 163.3177(2), Florida Statutes; Rule 9J-5.005(5), Florida Administrative Code.
Objective A.1.3 of the FLUE requires that "[u]pon plan adoption, Putnam County shall act to eliminate or reduce uses inconsistent with the uses identified on the [FLUM] and
associated adopted Goals, Objectives and Policies through implementing the following policies."
Policy A.1.3.1 of the FLUE requires revision of the County's Land Development Regulations, specifically the County Zoning Code, "to reinforce its current provisions regarding the elimination of nonconforming land uses by expanding the definition of nonconforming land uses to include all uses which are inconsistent with the Future Land Use Map 2001 or cannot be made compatible with adjacent land uses. The requirements of this provision shall be enforced upon application for building permits to repair or improve such structures."7
The nonconforming use provisions of the Zoning Ordinance apply to and implement the FLUM.
An automobile racetrack is not an appropriate use to put in a Rural Residential future land use category. In theory, one purpose of this land use designation is to protect residents from the intrusion of noisy racetracks which can impact an adjacent residential user.
The dispute in this case is clearly framed.
Petitioner contends that because the Property was designated "Rural Residential" when the County's Plan was adopted, the Speedway (racetrack) is a nonconforming use which must be restricted and eventually eliminated. Petitioner argues that
the County lacks the authority to amend its FLUM to make the Speedway a conforming use under the Plan.
Respondents and Florida Racing contend that the County has the authority to amend the FLUM, and acted properly in this instance in adopting the Amendment.
The County has the authority to amend its FLUM, including the designations of properties as long as the designations are consistent with other provisions of the Plan and applicable provisions of Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code.
The persuasive evidence indicates that an automobile racetrack is an allowable use in the Commercial future land use category as opposed to the Rural Residential category. If the Amendment is approved, the raceway would no longer be considered a nonconforming use for Plan purposes, and could undertake improvements without the restrictions that accompany such a use, subject to compliance with applicable zoning requirements. Stated otherwise, the racetrack could expand without complying with the nonconforming use restrictions, subject to compliance with the nonconforming standards in the Zoning Ordinance because the Property would remain a nonconforming use under the Zoning Ordinance. (Of course, a zoning change for the Property, as contemplated in the
County's Staff Report, would create different considerations as noted below.)
The Property is currently zoned C-2 and A, with the bulk of the property zoned agriculture.8 If the Amendment is approved, the next step would be for the Property owner to apply for a zoning change, e.g., special exception, or pursue a planned unit development. Under either scenario, the County could impose conditions on the use of the Property such as the amelioration of off-site impacts.
On the other hand, if the racetrack continued as a nonconforming use, the persuasive evidence indicates that the County would be limited in establishing any further limitation on the use of the Property, such as duration and frequency of use, e.g., hours of operation and other site design issues.
There is no persuasive support for the proposition that all subsequent Boards of County Commissioners are bound in every instance by the decision of one Board regarding the land use of a particular parcel.
There is some evidence that leads to at least a fair inference that the designation of the racetrack site as "Rural Residential" may have been in error. The data and analysis that was used to support the original designation indicates the area including the racetrack as being "woodlands." The County planner involved in the preparation of the Plan,
including the FLUM, testified that he did not know there was a racetrack on the land designated "woodlands." The FLUM was based "to a great extent" on this data, and very well may have designated the Property as "Rural Residential" by "oversight" based on the incorrect representation of the area as woodlands.
Several other commercial uses exist within the immediate vicinity of the site of the Property, are similarly depicted as "woodlands" by the referenced data, and are designated "Rural Residential" on the FLUM. These parcels, too, may be nonconforming by error, and not by some deliberate choice.
Whether the original designation of the Property as nonconforming was erroneous or not, the true question is what is the proper standard by which to weigh a FLUM amendment when it affects a site on which there exists a nonconforming use.
Neither Chapter 163, Part II, Florida Statutes, nor Rule 9J-5, Florida Administrative Code, directs the Department to review a FLUM amendment involving a nonconforming use under some specific provisions. Such an amendment must be subjected to the same standards applicable to any FLUM amendment.
The Property has been used intermittently as a racetrack for approximately 30 years. A racetrack has operated on the Property as a nonconforming use, and has the
right to continue do so under applicable County land use and zoning regulations. The racetrack is, in fact, eligible to expand by 15 percent under these regulations. The County would not have some absolute right to cease racetrack operations if it remained nonconforming, and would not have unlimited authority to address noise and traffic concerns.
The uncontradicted testimony is that it is likely that the racetrack would continue to operate even if it remained a nonconforming use.
The County does not lose any authority to address noise and traffic by virtue of the Amendment. Credible evidence in the record indicates that the County may actually have a better ability to address these concerns should the racetrack be made a conforming use.
Nevertheless, the fact that the racetrack, operated as the Speedway, currently exists in the area as a nonconforming use does not mean that the use is automatically compatible with the adjacent land uses and surrounding area or is otherwise consistent with the character of the community. The nonconforming use designation only means that the racetrack can continue to operate, not that the racetrack can achieve a potentially more useful and elevated land use status by virtue of being an existing raceway and commercial use. Otherwise, an existing nonconforming use would have greater
rights to a new and more permissive land use designation than a new entrant into the marketplace. Stated otherwise, the FLUM Amendment, if approved, will further and encourage the nonconforming use rather than its eventual elimination as contemplated by the Plan and Zoning Ordinance.
In this case, it is beyond fair debate that if a new automobile racetrack were proposed on the Property today, it would be inconsistent with the existing residential and conservation areas surrounding the property, notwithstanding the existence of several commercial properties in the vicinity.
The only reasonable conclusion to be reached is that that the Amendment is not "in compliance."
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding. Sections 120.569, 120.57(1), and 163.3184(9)(b), Florida Statutes.
The Parties
The Department is the state land planning agency and has authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes.
Among the responsibilities of the Department under the Act is the duty to review plan amendments submitted by local governments and to determine if the plan amendments are in compliance with the Act.
Petitioner and Florida Racing are "affected person[s]" within the definition set forth in Section 163.3184(1)(a), Florida Statutes, and have standing in this proceeding.
Burden of Proof
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993).
Section 163.3184(9)(a), Florida Statutes, has been interpreted to impose the burden of proof on the person challenging a large scale plan amendment that has been determined by the Department to be "in compliance."
"In compliance" means consistent with the requirements of Sections 163.3177, 163.3178, 163.3180, and 163.3191, Florida Statutes, and 163.3245, with the state comprehensive plan, the appropriate strategic regional policy plan, and Chapter 9J-5, Florida Administrative Code. Section 163.3184(1)(b), Florida Statutes.
Because the Department issued a Notice of Intent to find the Amendment "in compliance," the Amendment shall be determined to be "in compliance" if Putnam County's determination of compliance is "fairly debatable" as set forth in Section 163.3184 (1)(b) and (9)(a), Florida Statutes. Petitioner shoulders the burden of demonstrating beyond fair debate that the Amendment is not "in compliance."
The phrase "fairly debatable" is not defined in Chapter 163, Part II, Florida Statutes, or Chapter 9J-5, Florida Administrative Code. The Supreme Court of Florida opined, however, that the fairly debatable standard under Chapter 163 is the same as the common law "fairly debatable" standard applicable to decisions of local governments acting in a legislative capacity. In Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997), the Court opined: "The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety." Quoting from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Court stated further: "An ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity." 690 So. 2d at 1295.
Need
Section 163.3177(6)(a), Florida Statutes, requires
that a local government allocate land uses within its comprehensive plan based upon anticipated growth.
For the reasons set forth herein, Petitioner has failed to prove beyond fair debate that the County is over- allocated with land designated for commercial use.
Even assuming Petitioner had proven some over- allocation, this argument still fails. A numerical land use over-allocation does not mandate that every future plan amendment be found not "in compliance" on that basis. See The Sierra Club, et al. v. St. Johns County, et al., Case Nos. 01- 1851GM and 01-1852GM, 2002 WL 1592234 (DOAH May 20, 2002; DCA July 30, 2002). If a jurisdiction is over-allocated for a particular land use, the local government, in its adoption and the Department in its review, must exercise heightened caution and employ a more rigorous standard to ensure that further plan amendments that would expand the inventory of that use do not exacerbate urban sprawl or other inefficient land use patterns. Id.
Petitioner failed to prove beyond fair debate that the designation of the Property as "Commercial" will exacerbate urban sprawl or some other inefficient land use pattern.
Nonconforming Use, Inconsistency, and Incompatibility9
Section 163.3177(6)(a), Florida Statutes, requires that the future land use plan, "be based upon surveys, studies, and data regarding the area,. . .including the renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community. "
Rule 9J-5.006(3)(b)3. Florida Administrative Code, requires that the future land use element of a local comprehensive plan contain one or more specific objectives which address the requirements of Section 163.3177(6)(a) and which "[e]ncourage the elimination or reduction of uses inconsistent with the community's character and future land uses." Rule 9J-5.006(3)(c)2., Florida Administrative Code, requires the future land use element to contain one or more policies for each objective which address implementation activities for the "[p]rovision for compatibility of adjacent land uses."
Section 163.3177(2), Florida Statutes, requires that a local comprehensive plan be internally consistent. See Endnote 9.
Objective A.1.3 of the County's FLUE provides:
Upon plan adoption, Putnam County shall act to eliminate or reduce land uses inconsistent with the uses identified on the Future Land Use Map and associated adopted Goals, Objectives and Policies through implementing the following policies
. . . .
Policy A.1.3.1 of the County's FLUE provides:
Land Development Regulations, specifically the County Zoning Code, shall be revised to reinforce its current provisions regarding the elimination of nonconforming land uses by expanding the definition of nonconforming land uses to include all uses which are inconsistent with the Future Land Use Map 2001 or cannot be made compatible with adjacent land uses. The requirements of this provision shall be enforced upon application for building permits to repair or improve such structures.
Regarding Objective A.1.2 of the County's FLUE, which pertains to providing incentive for the redevelopment and renewal of blighted properties, Policy A.1.2.1 of the County's FLUE provides:
Land Development Regulations shall be updated which require the upgrading or revitalization of deteriorating or incompatible commercial sites, in the few instances where the need may be found to exist, through methods such as provision of common parking areas, store front renewal, [and] sign control. The expansion or replacement of commercial uses which are inappropriately located or have adverse impact on surrounding uses shall be prohibited through implementing the land use spatial distribution as depicted on the County FLUM and the nonconforming land use construction restrictions of the County Zoning Code.
Neither Chapter 163, Part II, Florida Statutes, nor Rule 9J-5, Florida Administrative Code, defines nonconforming use. The term is generally described as follows:
The phrase "nonconforming use" in the law of zoning, is usually defined as a lawful use of premises existing on the effective date of the zoning regulations and continued thereafter, which does not conform to such regulations. Usually a nonconforming use is allowed to continue subject to certain conditions. This is done in an effort to secure a reasonable exercise of the police power for the interest of the community against the interest of the private owner so as not to interfere with existing conditions more than necessary for the public welfare.
Zoning regulations, in providing for nonconforming structures and uses, look forward to the eventual elimination of all nonconforming structures and uses by attrition, abandonment, and acts of God, as speedily as is consistent with proper safeguards for the rights of those persons affected.
7 Fla. Jur. 2d Building, Zoning, and Land Controls Section 203 (1997). See also 83 Am. Jur. 2d Zoning and Planning Section
555 (2003); Bixler v. Pierson, 188 So. 2d 681 (Fla. 4th DCA 1966)(house trailer maintained prior to enactment of zoning ordinance prohibiting such use permitted to remain as a nonconforming use, but replacement with a new and larger trailer constituted a prohibited alteration, extension, and enlargement of a nonconforming use).
This is not an enforcement proceeding nor does it involve consideration of an application for a zoning or
rezoning change. But the nonconforming use provisions of the Zoning Ordinance apply to the FLUM and the Plan and the Zoning Ordinance contemplate, as a goal, that nonconforming uses will eventually be extinguished, notwithstanding that they may continue subject to specific requirements. This is consistent with extant law.10
Further, the County's FLUM is part of the County's FLUE of the Plan. The FLUM reflects the proposed distribution, location, and extent of the various land use categories which are required to be supplemented by goals, policies, and measurable objectives in the comprehensive plan.
See Section 163.3177(6)(a), Florida Statutes.
This case involves a difficult policy decision. The record is clear that the Amendment was approved in large measure to allow the County to exercise better control over the racetrack. The County, like all local government entities having the authority to make land use decisions, and here legislative decisions regarding amendments to the County's Plan, chose to address the FLUE provisions quoted above and eliminate the Property as a nonconforming use by making it a conforming use by operation of law.
While it may be true that the County may actually have a better ability to address the issues alleged to be inconsistent with the community character by making the
racetrack a conforming use under the Plan, this is not the test.
The automobile racetrack, a nonconforming use, can continue to operate on the Property subject to compliance with the Zoning Ordinance and other extant law. However, the FLUM Amendment, purporting to change the legal status of the pre- existing, nonconforming use of the Property as a racetrack to a conforming use, does not, ipso facto, convert the use to a compatible and consistent use.
It is beyond fair debate that a new racetrack on the Property would be inconsistent with the character of the community and the surrounding area. The racetrack on the Property is also not compatible and is otherwise inconsistent with the character of the community and the surrounding area, but is allowed to co-exist only as a nonconforming use.
By changing the land use designation of the Property to Commercial from Rural Residential, the Amendment will, by operation of law, cause the racetrack, and the entire Property, to be a conforming use under the Plan. (The Amendment also authorizes other commercial uses which would necessarily be conforming uses provided they comply with the Plan and the Zoning Ordinance.) In this instance, the FLUM Amendment is furthering and encouraging the existence of a nonconforming use, not encouraging the elimination or
reduction of a nonconforming use. Stated otherwise, the FLUM Amendment is not encouraging the elimination or reduction of uses inconsistent with the community's character and future land uses. To this extent, the FLUM Amendment is inconsistent with the Plan, Section 163.3177(2) and (6)(a), Florida Statutes, and Rules 9J-5.005(5) and 9J-5.006(3)(b)3. and (3)(c)2., Florida Administrative Code. The existing use of the Property and potential commercial uses of the Property are otherwise incompatible with the community's character and surrounding area and adjacent land uses and this conclusion is not fairly debatable.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be issued concluding that the Amendment adopted by Putnam County in Ordinance No. 2001-
33 is not "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder.
DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida.
___________________________________ CHARLES A. STAMPELOS
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 2nd day of May, 2003.
ENDNOTES
1/ Under the provisions of the Plan and Zoning Ordinance, these nonconforming commercial uses cannot change to a more intensive commercial use. For example, a commercial operation used for selling portable storage buildings could not change the use to a racetrack.
2/ Under the 15 percent provision, an entire structure, such as the racetrack, could be renovated, i.e., 150 percent of the raceway could be replaced in 10 years. The Zoning Ordinance also prohibits the repair or rebuilding of a nonconforming structure at a point when the structure becomes physically unsafe or unlawful due to the lack or repairs or maintenance and is declared to be an unsafe building or structure by an enforcement officer or other competent authority. No enforcement action has been taken against the racetrack or its owners.
3/ On April 18, 2001, Thomas J. Rodgers, a building official with Putnam County, advised Mr. Potter of his site visit on March 23, 2001, and observation that several structures had been built without permits and that no more work should proceed without obtaining the necessary permits. Mr. Salmons confirmed that the letter accurately depicted what he also saw during the site visit, i.e., the old grandstands had been
renovated, a small grandstand added, a new driveway installed which was not historically part of the racetrack. Mr. Salmons also testified that, for the most part, the seating capacity of the grandstands had not been increased based on what he saw. On May 22, 2001, Mr. Rogers advised Mr. Potter that "[n]o further code enforcement action will take place by this department at this time, as long as you continue to work towards obtaining what is required by the Zoning Department."
4/ The County has one Commercial land use category. According to the dated (1985-Table A-1) data and analysis for Planning District 1, which includes the Property, "[t]here are few commercial uses in this Planning district. Fifty-six acres were reported in this category. Almost all commercial land use serves the residential population on a retail level and is located in the three municipalities and on sites along the main highway."
5/ Land use categories include "residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and private use of land." Section 163.3177(6)(a), Florida Statutes.
6/ If the Amendment is found to be "in compliance," the use of the approximately 29 acres is not limited to a racetrack for any authorized commercial uses may be allowed. Mr.
Salmons testified that he did not like having "the commercial designation for [the racetrack] because they go in and out of business."
7/ Policy A.1.2.1 of the FLUE provides in part that "[t]he expansion or replacement of commercial uses which are inappropriately located or have an adverse impact on surrounding uses shall be prohibited through implementing the land use spatial distribution as depicted on the County FLUM and the nonconforming land use construction restrictions of the County Zoning Code."
8/ According to the County's Zoning Ordinance, Article XXI, "A District," "[t]he A district is intended to apply to undeveloped or sparsely developed areas which consist of uses normally found in rural areas. The provisions applicable to the district are designed primarily to protect areas that are suitable for agricultural operations from encroachment by urban development, and to accommodate non-agricultural
pursuits found in the district. Substantial residential, commercial or industrial development shall not be permitted in the district."
9/ In this proceeding, "'[c]ompatibility' means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." Rule 9J- 5.003(23), Florida Administrative Code. See also Rule 9J- 5.005(5), Florida Administrative Code, regarding internal consistency.
10/ For example, in JPM Investment Group, Inc. v. Brevard County Board of County Commissions, 818 So. 2d 595 (Fla. 5th DCA 2002), JPM and its predecessors in title, sold beer and wine on land operated as a nonconforming use. JPM wanted to sell all varieties of alcohol including liquor. This required appropriate zoning which was denied. The court, after reviewing the applicable provisions of the Brevard County Code and extant law, concluded that the proposed change in activity from the serving of beer and wine to all alcoholic beverages on the property was an inappropriate expansion of a nonconforming use.
COPIES FURNISHED:
Russell D. Castleberry, Esquire Post Office Box 758
Palatka, Florida 32178-0758
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Michael W. Woodward, Esquire Keyser & Woodward, P.A.
Post Office Box 92
Interlachen, Florida 32148-0092
James L. Padgett, Esquire
Law Offices of James J. Padgett Three North Summit Street
Crescent City, Florida 32112-2505
Colleen M. Castille, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 300
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 the Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 22, 2003 | Second Agency FO | |
| Jul. 24, 2003 | Agency Miscellaneous | |
| May 02, 2003 | Recommended Order | The amendment to Putnam County`s Future Land Use Map, changing the site from "Rural Residential" to "Commercial," is not "in compliance" with Chapter 163, Part II, Florida Statutes, and this conclusion is not fairly debatable. |
